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January 1, 1829


ERROR to the circuit court of Rhode Island.

This case came before the Court upon a bill of exceptions tendered by the plaintiff in error, they having been defendants below, on the trial of the cause in the circuit court. In that court the defendants in error instituted an ejectment for the recovery of a lot of ground called 'The Swamp Lot,' lying in North Providence in the state of Rhode Island; which lot of ground was, with other lands, devised by Jonathan Jenckes of Winchester in the state of New Hampshire, by his last will and testament, dated the 17th of January 1787, to his daughter Cynthia Jenckes; subject to a life estate therein of his sister Lydia Pitcher, who was then in possession of the same, and so continued until her death on the 10th of August 1794.

Jonathan Jenckes was also seised of other lands in north Providence and in Smithfield, Rhode Island; and also of real estate in New Hampshire and in Vermont, most of which were devised to his daughter Cynthia. A small part of his New Hampshire lands was devised for the payment of his debts. Cynthia Jenckes his wife, and Arthur Fenner of Providence, Rhode Island, were appointed the executors of his will. Cynthia Jenckes, alone, qualified as executrix. The testator died at Winchester in New Hampshire, on the 31st of January 1787, a few days after making his will.

No probate of the will of Jonathan Jenckes was made in the state of Rhode Island.

The plaintiffs in the ejectment are the heirs of Cynthia Jenckes, and claim the premises under the devise to her, she having afterwards intermarried with Joel Hastings.

The title of the plaintiff in error was as follows:

Cynthia Jenckes the widow and executrix of Jonathan Jenckes, having been qualified in New Hampshire to act as executrix, on the 18th of August 1790, returned to the probate court of the county of Cheshire, an inventory of the real and personal estate in New Hampshire and Vermont, amounting to 1792 12s. 9d. A commission of insolvency was afterwards granted by the probate court, and on the 3d of January 1792, the commissioners reported the whole amount of debts due by the estate; of which 6920 19s. were due to citizens of Rhode Island. In February 1792, the executrix settled her account in the probate court, and a balance of 15 7s. 7d. remained in her hands, 'the guardian of the heirs appearing and consenting' to the settlement.

On the 22d of July 1790, a license to sell the real estate of Jonathan Jenckes, to pay and discharge the debts of the estate, was granted by the probate court of Cheshire county; and on the 12th day of November 1791, Cynthia Jenckes, as executrix of Jonathan Jenckes, sold and conveyed by deed to Moses Brown and Oziel Wilkinson, the reversion of the three acre Swamp lot, the premises in dispute. The other real estate in Rhode Island was also sold and conveyed by her at the same time.

On the day the sale was made, Cynthia Jenckes executed a bond to the purchasers, reciting that by virtue of the license, and in pursuance of its directions, a sale had been made of all the estate which belonged to the testator in the towns of Providence, Smithfield, and North Providence, in the county of Providence, and state of Rhode Island, and that she had received pay for the same; 'and whereas some doubts may arise whether a sale and conveyance so made, by virtue of the license of the judge of probate, in the state of New Hampshire, will give a good and sufficient title to lands and tenements lying in the state of Rhode Island, and Providence plantations; now, for the clearing of all doubts respecting the premises, I, the said Cynthia Jenckes, in my said capacity, do covenant, and engage for myself, my heirs, executors and administrators, to and with the said Moses Brown, Oziel Wilkinson and Thomas Arnold, their heirs, executors and administrators, that I will procure an act to be passed by the legislature of the state of Rhode Island, ratifying and confirming the title by me granted and conveyed as aforesaid, to them and their heirs and assigns forever; or in failure thereof, that I will repay the purchase money which I have received for the same, with lawful interest, and such reasonable costs and damages which they may or shall thereby sustain, as shall sufficiently indemnify, and save them free from loss in the premises, to all intents and purposes.'

At the June sessions of the legislature, Cynthia Jenckes, by her attorney regularly constituted, petitioned the legislature of the state of Rhode Island, representing, 'that the personal estate of the said Jonathan Jenckes, being insufficient to pay his debts, your petitioner obtained authority from the honourable John Hubbard, judge of probate for the county of Cheshire, in said state of New Hampshire, where the said Jonathan last lived, to make sale of so much of the real estate of the said Jonathan Jenckes, as should be sufficient for the purpose of paying his debts; that your petitioner, in pursuance of said authority, sold and conveyed a part of said deceased's estate, situate in this state; that for the said estate your petitioner received a part of the consideration money, and the residue thereof is to be paid when the deed executed by your petitioner shall be ratified by this assembly; your petitioner would further show, that the residue of the said purchase money is absolutely necessary to pay the debts due from said estate, and which are now running in interest. She therefore humbly prays, your honours will be pleased to ratify and confirm the sale aforesaid, being by a deed made by your petitioner unto Moses Brown and others, on the 12th day of November, A. D. 1791, for the consideration of five hundred and fifty dollars; whereby your petitioner conveyed the right of redemption to a certain mortgaged estate, and also other lands in said deed mentioned, situate in Smithfield and North Providence.'

Whereupon the legislature passed the following act:

State of Rhode Island, sc.

At June session of the General Assembly, A. D. 1792.

Whereas, Cynthia Jenckes, late of Winchester, in the state of New Hampshire, now of the state of Vermont, executrix of the last will and testament of Jonathan Jenckes, late of Winchester aforesaid, deceased, preferred a petition and represented unto this assembly, that his personal estate being insufficient for the payment of his debts, she obtained authority from the honourable John Hubbard, esq., the judge of probate for the county of Cheshire, in the state of New Hampshire aforesaid, where the said Jonathan last lived, to make sale of so much of the real estate of the said Jonathan Jenckes, as should be sufficient to pay his debts; that by virtue of said authority she made sale to Moses Brown and others, of part of the said real estate, situate within this state; that she hath received part of the consideration money, and the remainder is to be paid when the sale aforesaid shall be ratified by this assembly; and that the residue of said purchase money is necessary for the payment of said debts; and thereupon, the said Cynthia prayed this assembly to ratify and confirm the sale aforesaid, which was made by a deed executed by her on the 12th day of November last past, for the consideration of five hundred and fifty dollars, whereby she conveyed the right of redemption to a certain mortgaged estate, and also other lands in the said deed mentioned, situate in Smithfield and North Providence.

On due consideration whereof, it is enacted by this general assembly, and by the authority thereof, that the prayer of the said petitioner be granted, and that the said deed be, and the same is hereby ratified and confirmed, so far as respects the conveyance of any right or interest in the estate mentioned in said deed, which belonged to the said Jonathan Jenckes at the time of his decease.

A judgment pro forma, for the plaintiffs, was entered in the circuit court, and this writ of error was sued out.

The case was argued by Mr Whipple, and Mr Wirt, for the plaintiff in error; and by Mr Webster, with whom was Mr Hubbard, for the defendants.

Mr Whipple, for the plaintiffs in error, after stating the facts of the case, proceeded to say, that the whole case before the Court, turns upon the constitutional validity of the act of the legislature of Rhode Island.

All the lands of Jonathan Jenckes, in the state of New Hampshire, were sold for the payment of debts. A large amount of debt was due in Rhode Island; and it is admitted that the proceeds of the sale of the swamp lot were applied to the payment of the debts of the testator. It is also admitted that all the personal estate had been absorbed by the payment of debts in New Hampshire. The question arising from these facts of the case is, whether a deed of land in Rhode Island, made by a New Hampshire executor, qualified in New Hampshire, and not in Rhode Island, the sale being fairly made for the payment of debts, and the deed being subsequently ratified and confirmed by the legislature of Rhode Island, constitutes a valid conveyance. It is contended that it does: and it is at the same time conceded, that such a deed without such confirmation is absolutely void. This view of the case presents necessarily the question of the power of the legislature to pass the law.

Noother limit to the power of the legislature of Rhode Island is known, than that which is marked out by the constitution of the United States. If any clause in that instrument is expressly or virtually infringed by the confirmatory act of 1792, such a violation would render the act a nullity. The national constitution being the only limitation, the Court has no right to pronounce a law of Rhode Island void, upon any other ground. It has been said in England, that an act of pthliarount, contrary to the principles of natural justice, would be void. Such an opinion, in reference to a law of a state, has never been intimated in this Court.

But, suppose the people to make an express grant, authorising the legislature to appoint a man a judge in his own case; or to pass any law contrary to natural justice: so long as none of the prohibitions of the constitution are violated, what right has this Court to interfere?

What was done in the case before the Court, was with the full knowledge, concurrence, and assent of the people of Rhode Island. Acts authorising foreign executors to sell real estate, and acts confirming void deeds, have been passed ever since the settlement of the state. Having no written constitution, usage is the law of Rhode Island. The papers in the case clearly show that the legislature of that state always has exercised supreme legislative, executive, and judicial power*fn1 (a) . There is an executive magistrate, but he is totally destitute of executive power. He cannot pardon the slightest offence; he has no veto on legislation; and he cannot

August 1773. Randall vs. Robinson. A petition for a new trial, after a new trial had been given by the court. Granted.

Ross vs. Stow. Petition for a new trial after two verdicts had passed against the petitioner, and to remove the cause into another county. Granted.

August 1774. Petition of Augustus Mumford for leave to amend a judgment he recovered against Simon Hazard, from twenty-four to seventy-four dollars. Granted.

Petition from John Randall, stating that he had again obtained a verdict against Matthew Robinson for thirty-five pounds, which the supreme court, on motion of Robinson, had set aside, and praying that the judgment be set aside, and 'the verdict remain fair as at first received, and that the next superior court may be empowered to enter up judgment thereon in his favour, for his damages and costs by the said last jury found.' Granted.

Petition of George Elam, stating that a final decree of the king in council had been obtained by him against John Dorkray, and praying that the supreme court be ordered to carry the same into effect. Granted.

March 1776. Petition of Benoni Pearce, administrator, to sell real estate to pay debts. Granted.

June 1776. Petition of Mary Mason to appoint some person to sell the estate of orphans, one of them having gone to sea two years ago, and not since heard of. Granted.

December 1776. Petition stating that judgment had been obtained against the petitioner for more than the debt due. Granted, and the judgment declared null and void, and the Court directed to Chancerize the bond.

March 1777. Petition of Caleb Fuller, stating that he and Shore Fuller of Rehoboth, Massachusetts, are joint owners of a ferry, and that Fuller refuses to use it by turns, the one during one week, and the other the next; and praying 'the assembly to grant that he shall improve said ferry with said Fuller in turns, exchanging every other week, and that his turn may begin the first day of next week, as has been customary for a number of years heretofore, &c. Granted.

Petition of Samuel Brown, administrator, stating that the intestate covenanted to give a deed to Nathan Crary of the state of Connecticut, of a house and lot, but died before executing it; that the estate of the intestate is insolvent, and prays to be authorized to give the deed to Crary, in pursuance of said covenant. Granted.

February 1778. Petition of Benoni Pearce praying to be released from his executorship, on paying the balance in his hands to the town council of Providence. Granted. not appoint a single officer in the state; all the executive powers are exercised by the legislature.

August 1779. Petition of Othniel Goston, stating that administration had been granted upon his daughter's estate, and that the administrators had brought actions against him; and praying that the administration might be set aside. Granted, and that the town council be directed to revoke the same, and to grant administration to the petitioner.

1781. Petition of Sylvester Gardner, deputy quartermaster, stating that he, by order of his superior officer, seized a quantity of stock and sold it for the benefit of the United States; that he is sued for taking said stock, and prays that the action may be stopped. Granted.

Petition of Martha Hartshorne, stating that her husband devised certain real estate to her for life, remainder to his son in fee, praying that she may sell part of the estate for her support. Granted.

1782. Petition of Archibald Young and others, praying that part of the real estate of a non compos, may be given in fee to such person as will give bond to support her; remainder to be divided among the heirs in fee, provided they give bond to restore it in case she is restored to her mind. Granted; and the superior court ordered to carry the prayer of the petition into equitable execution.

1783. Petition of Z. Hopkins, stating that he was treasurer of Gloucester, was sued upon notes given by him officially, and judgment has been recovered against him, and praying that execution may be issued against the present treasurer. Granted.

1783. Petition of William Haven, praying that a decree of the admiralty court may be set aside and a trial allowed. Granted.

1784. On petition, a deed of gift from Gideon Sissor to his infant children was declared void and fraudulent, and the estate was restored to him.

1786. Stephen and Daniel Stanton were appointed guardians of their father, and allowed to sell his real estate to pay debts, &c.

1791. Petition of Mary Dennison of Stonington, Connecticut, executrix, for the sale of real estate in South Kingston to pay debts, and to account with the judge of probate in Connecticut. Granted.

So of its judicial powers. We have courts acting under standing laws; but one of those standing laws authorizes the legislature upon a petition for a new trial to set aside judgments at its pleasure. Originally the legislature was the only court in the state. It exercised common law, chancery; probate, and admiralty jurisdiction. Its chancery jurisdiction it has never parted with. It is the best court of chancery in the world. Its probate power, though conferred upon inferior courts, has always been exercised concurrently with them. Accordingly, we find frequent instances of wills proved, and administration granted, by the legislature. The power of granting license to sell real estate, of proving wills and of confirming void deeds, has been so long and so frequently exercised, that it has been known by almost every man in the state. The people, knowing this usage, have acted under it, and there is hardly an acre of land in Rhode Island which, in some period or other, has not been sold by executors, administrators or guardians licensed by the general assembly; or conveyed by void deeds, confirmed by that body. To draw into question the validity of such conveyances, would shake almost every title in the state.

Resort however to the extraordinary powers of the Rhode Island legislature to protect the present conveyance, is unnecessary. Every legislature in the union possesses similar authority, unless expressly restrained by its local constitution. The subject matter of the conveyance was land lying within the state; and, consequently, exclusively within the jurisdiction of the state. How the land shall pass from one man to another, whether by deed under seal, or by mere delivery; how it shall be appropriated to the payment of debts whether by attachment and sale, or by mesne or final process; or whether it shall be totally exempted from attachment; what form shall be observed by executors and administrators, selling for the payment of debts; how they shall be qualified, and from whom they shall obtain a license; whether the deed shall precede the license, or the license precede the deed; are all questions to be decided by he legislature: and their decision is conclusive upon all mankind. Whether they decide by a general law or a special act. is matter exclusively of legislative discretion.

It is however considered unnecessary to attempt to ascertain the extreme limits of state power in regard to its domain. All the power over that subject, whatever may be its measure, is in the states. A very small portion of it was exercised in the present case. The principles of natural justice were not violated, unless it is unjust to appropriate the property of a debtor to the payment of his debts. No vested rights were disturbed, because Cynthia Jenckes, the devisee, took the estate subject to the debts of the testator. The general law of Rhode Island furnished the creditors with various direct remedies against the estate itself. It was liable in an action against the devise to have been attached on an original writ and sold upon execution. A creditor might have taken administration, and petitioned the supreme court for a license to sell. The right of the devisee, therefore, was subject to such remedies as had been previously provided by the general law, and also to such remedies as the legislature chose subsequently to provide. The application of the general or the special remedy, would alter but not impair the rights of the parties. Previous to the sale, the right of the creditor was to obtain payment either from the devisee or the estate. The right of the devisee was to hold the estate subject to this elder right of the creditor. It was at her election to discharge the debts voluntarily, and remove the incumbrance from the estate; or to allow the creditor to proceed under the best remedy he could obtain. The deed of the executrix and the act of the legislature, constituted a cheap and summary remedy for the enforcement of the rights of the creditor. If the estate had not come to the hands of the devisee loaded with the lien of the creditors, it might have been difficult to have considered the act as merely remedial; for it would have bestowed new rights upon the creditor and heaped new obligations upon the devisee.

Three propositions then may safely be advanced in relation to this act. 1. That no injustice was done. 2. That vested rights were not disturbed. And 3. That the obligation of contracts was not impaired.

The power of the legislature to furnish remedies in favour of existing rights, was exercised to a much greater extent in the cases of Calder vs. Bull, 3 Dall. 386; Underwood vs. Lilly, 10 Serg. & Rawle, 97; and Foster vs. The Essex ...

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