sequently became Attorney-General of the State, and is reputed to have been a lawyer of considerable ability. "When," he says, "he made up his mind to practise law, he went into the garden to exercise his talents in addressing court and jury. He selected five cabbages in one row for judges, and twelve in another row for jurors; after trying his hand thus awhile, he went boldly into court and took upon himself the duties of an advocate; and a little observation and experience there convinced him that the same cabbages were in the court-house which he thought he had left in the garden, five in one row and twelve in another."
In the year 1747 an important change was made in the judicial system of the colony. The political principle of distribution of the powers of government into co-ordinate brandies, so generally recognized at a later day, had hitherto been little understood. From 1695, when the assembly was first divided into two houses, the members of the Council, or upper house, constituted the Superior Court, and were vested with executive powers as well. With changed social and political conditions, the need of a tribunal independent of the other departments of government, and better qualified to administer justice, was felt more and more. Accordingly, in 1747 the General Assembly enacted a law which established the judiciary as a separate branch of the colonial government. It provided that a chief and four associates should be chosen annually by the assembly to hold the court. The inconvenience of transacting all of the business of the court at Newport was also remedied by providing that two terms of the court annually should be held in each county. Although the judiciary was thus established as a separate branch of the colonial government, yet in many instances the same persons were members of the assembly and of the court, until 1780, when it was enacted that after the next election no member of either house of the General Assembly should hold the office of a justice of the Supreme Court. The preamble to this act declared that it was incompatible with the Constitution of the State that legislative and judicial powers should be vested in the same persons. In 1798 the name of the court was changed to the Supreme Judicial Court.
The case of Trevett v. Weeden has perhaps greater historical interest than any other case decided by the court in the eighteenth century. For the first time in the history of the State, and preceded only by the case of Holmes v. Walton in New Jersey, the court adjudged an act of the Legislature to be unconstitutional, and so absolutely void; or perhaps I should say the court dismissed the action for want of jurisdiction, and this was construed by the assembly as deciding that the statute tinder which the action was brought was unconstitutional.
The Legislature had passed one of the numerous legal-tender laws of the period, for the purpose of enforcing the people to accept the paper money of the State at its face value. A heavy penalty was attached to the refusal of any party to accept this money, and it was provided that the offence should be tried before a special court composed of three superior court judges, sitting without a jury. The case was tried on pleas to the jurisdiction, one of which set up the defence that the act was unconstitutional and void. The action was dismissed on the ground that the court did not have jurisdiction. The General Assembly cited the judges to appear before them to assign the reason and ground for the judgment, reciting in the summons that the judges of the Supreme Court had "adjudged an act of the supreme legislature of this State to be unconstitutional and so absolutely void," and that "the said judgment is unprecedented in this State, and may tend to abolish the legislative authority thereof."
The defence of the court was made by Mr. Justice Howell, an accomplished jurist, who laid down the principle that the judges were not accountable to the General Assembly for the reasons of their opinions, and that
