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Orleans, in favour of R. L. Coli, a than the former, as being thought of citizen of Maryland, who endorsed more public concern in the advancethe same to the plaintiff, a citizen of ment of trade and commerce. New-York. The action was brought Applying this definition to the poin the circuit court of the United litical character of the several states States for the district of Maryland; of this Union, in relation to each and upon a case agreed, stating the other, we are all clearly or opinion, above facts, the judges of that court that bills drawn in one of these states, were divided in opinion, whether they upon persons living in any other of could entertain jurisdiction of the them, partake of the character of focause upon the ground insisted upon reign bills, and ought so to be treated. by the defendants' counsel, that the For all national purposes einbraced bill was to be considered as inland. by the federal constitution, the states The difficulty which occasioned the and the citizens thereof are one, uniadjournment of the cause to this court, ted under the same sovereign authori. is produced by the 11th section of the ty, and governed by the same Jaws. judiciary act of 1789, which declares, In all other respects, the states are nethat no district or circuit court shall cessarily foreigo to, and independent have "cognizance of any suit to re- of each other. Their constitutions cover the contents of any promissory and forms of government being, alnote, or other chose in action, in favour though republican, altogether differof an assignee, unless a suit might ent, as are their laws and institutions. have been prosecuted in such court to This sentiment was expressed, with recover the said contents, if no as- great force, by the president of the signment had been made, except in court of appeals of Virginia, in the cases of foreign bills of exchange." case or Warder vs. Arrell, 2 Wash.

The only question is, whether the 298 ; where he states, that in cases of bill on which the suit is founded, is to contracts, the laws of a foreign counbe considered a foreign bill oi ex- try, where the contract was made, change?

must govern; and then adds as folIt is to be regretted that so little lows:-" The same principle applies, aid, in determining this question), is though with no greater force, to the to be obtained from decided cases, different states of America ; for though either in England or in the United they form a confederated government, States.

yet the several states retain their inSir William Blackstone, in his dividual sovereignties, and, with reCommentaries, distinguishes foreign spect to their municipal regulations, from inland bills, by defining the for- are to each other foreign." mer as bills drawn by a merchant re. This character of the laws of one siding abroad upon his correspondent state in relation to the others, is strong. in England, or vice versa ; and the ly exemplified in the particular sublatter as those drawn by one person ject under consideration, which is on another, when both drawer and governed, as to the necessity of prodrawee reside within the same king. test and rate of damages, by different dom. Chitty, p. 16, and the other rules in the different states. In none writers on bills of exchange, are to the of these laws, however, so far as we same effect ; and all of them agree, can discover from Griffith's Law Rethat until the statutes of 8 and 9 W, gister, to which we were referred by III. ch. 17, and 3 and 4 Anne, ch. 9, the counsel, except those of Virginia, which placed these two kinds of bills are bills, drawn in one state upon an. upon the same footing, and subjected other, designated as inland ; although inland bills to the same law and cus. the damages allowed upon protested tom of merchants which governed bills of that description, are generally, foreign bills; the latter were much and with great propriety, lower than more regarded in the eye of the law upon bills drawn upon a country fo.

reign to the United States, since the the same courts upon the subject of disappointment and injury to the hold- judgments rendered in the tribunals er must always be greater in the lat- of the sister states. In the case of ter, than in the former case. It is for Hitchcock vs. Aicken, 1 Caines, 460, the same reason, no doubt, that, by all the judges seem to have treated the laws of most of the states, bills those judgments as foreign in the drawn in and upon the same state, courts of New-York; and the only and protested, are either exempt from point of difference between them grew damages altogether, or the rate is out of the construction of the 1st seclower upon them, than upon bills tion of the 4th article of the constitudrawn on some other of the states. tion of the United States, and the act

The only case, which was cited at of congress of the 26th of May, 1790, the bar, or which has come to our ch. 38, respecting the effect of those knowledge, to show that a bill drawu judgments, and the credit to be given in one state upon a person in any other to them in the courts of the sister of the states, is an inland bill, is that states. of Miller vs. Hackley, 5 Johns. Rep. It would seem, from a note to the 375. Alluding to this case, in the case of Bartlett vs. Knight, 1 Mass. third volume of his Commentaries, p. Rep. 430, where a collection of state 69, in a wote, Chancellor Kent re- decisions on the same subject is given, marks very truly, that the opinion was that these judgments had generally, if not given on the point on which the not universally, been considered as decision rested ; and he adds, that it foreign by the courts of many of the was rather the opinion of Mr. Justice states. If this be so, it is difficult to Van Ness than that of the court. It understand upon what principle bills is not unlikely, besides, that that opin- of exchange drawn in one state upon ion was, in no small degree, influ- another state can be considered as inenced by what is said by Judge Tuck- Jand; unless in a state where they are er in a note to 2 Black. Com. 467; declared to be such by a statute of which was much relied upon by one that state. of the counsel in the argument, where It has not been our good fortune to the author would appear to define an see the case of Duncan vs. Course, i inland bill, as being one drawn by a South Carolina Constitutional Reperson residing in one state on another ports, 100 ; but the note above referwithin the United States. He is so red to in 3 Kent's Com. informs us, understood by Chancellor Kent, in that it decides that bills of this descripthe passage which has been referred tion are to be considered in the light to: but this is undoubtedly by a mis- of foreign bills; and the learned contake, as the note manifestly refers to mentator concludes, upon the whole, the laws of Virginia; and by an act and principally upon the ground of of that state, passed on the 28th of De- the decision just quoted, that the cember, 1795, it is expressly declared, weight of American authority is on that all bills of exchange drawn by that side. any person residing in that state, on a That it is so, in respect to the neperson in the United States, shall be cessity of protesting bills of that deconsidered, in all cases, as inland scription, was not very strenuously bills. The case of Miller vs. Hackley, controverted by the counsel for the therefore, can hardly be considered as defendant. But he insists, that under an authority for the position which it a just construction of the 11th section was intended to maintain. We think of the judiciary act, concerning the it cannot be so considered by the jurisdiction of the federal courts, these courts of New York, since the prin- bills ought to be considered and treatciple supposed to be decided in that ed as inland. The argument is, that case, would seem to be directly at va- the mischief intended to be remedied riance with the uniform decisions of by the provisions in the latter part of that section, by the assignment of each other. It is quite otherwise as promissory notes and other choses in to bills drawn in one state upon an, action, is the same in relation to bills other. They answer all the purposes of exchange of the character under of remittances, and of commercial faconsideration.

cilities, equally with bills diawn upon We are of a different opinion. The other countries, or vice versa ; and if policy which probably dictated this a choice of jurisdictions be important provision in the above section, was to to the credit of bills of the latter class, prevent frauds upon the jurisdiction which it undoubtedly is, it inust be of those courts by pretended assign- equally so to that of the former. ments of honds, notes, and bills of Nor does the reason for restraining exchange strictly inland; and as these the transfer of other choses in action evidences of debt generally concern apply to bills of exchange of this dethe internal negotiations of the inha- scription, which, from their combitants of the same state, and would mercial cliaracter, might be expected seldoin find their way fairly into the to pass fairly into the hands of persons hands of persons residing in another residing in the different states of the state; the prohibirion, as to them, Union. We conclude, upon the whole, would impose a very trifling restric- that in no point of view ought they to tion, if any, upon the commercial in- be considered otherwise than as fo. tercourse of the different states with reign bills.

David Wilkinson vs. Thomas Leland & al.

In this cause, a bill of exceptions dict was taken for the plaintiffs, and a was taken, on which a judgment pro bill of exceptions allowed upon a pro forma was entered, to obtain the final forma opinion given by the court in decision of the supreme court, as to favour of the plaintiffs, to enable the the validity of an act of the legisla parties to bring the case before this ture of Rhode Island.

court for a final determination. The The facts are stated in the opinion only questions which have been disof the court.

cussed at the bar arise under this bill Mr. Whipple and Mr. Wirt appears of exceptions. . ed for the plaintiff.

The facts are somewhat complicated Mr. Webster and Mr. Hubbard (or in their details, but those which are the defendant.

material to the points before us may be Mr. Justice Story delivered the opi- summed up in a few words. nion of the court.

The plaintiff's below are the heirs at This is a writ of error to the circuit law of Cynthia Jenckes, to whom her court of the district of Rhode Island, father, Jonathan Jenckes, by his will in in a case where the plaintiff in error 1787, devised the demanded premises was defendant in the court below. in fee, subject to a life estate then in The original action was an ejectment, being, but which expired in 1794. By in the nature of a real action, accord- his will, Jonathan Jenckes appointed ing to the local practice, to recover a his wife Cynthia, and one Arthur Fenparcel of land in North Providence in ner, executrix and executor of his will. that state. There were several pleas Fenner never accepted the appointpleaded of the statute of limitations, ment. At the time of his death, Jonaupon which it is unnecessary to say than Jenckes lived in New-Hampany thing, as the questions thereon shire, and after his death his widow have been waived at the bar. The duly proved the will in the proper court cause was tried upon the general issue; of probate in that state, and took upon and, by consent of the parties, a ver- herself the administration of the estate

as executrix. The estate was repre- It is wholly unnecessary to go into
sented insolvent, and commissioners an examination of the regularity of the
were appointed in the usual manner, proceedings of the probate court in
to ascertain the amount of the debts. New Hampshire, and of the order or
The executrix, in July, 1790, obtained license there granted to the executrix
a license from the judge of probate in to sell ihe real estate of the testator,
New Hampshire, to sell so much of That cause could have no legal opera-
the real estate of the testator, as, to- tion in i hode Island. The legislative
gether with his personal estate, would and judicial authority of New-Hamp-
be sufficient to pay his debts and inci- shire were bounded by the territory of
dental charges, The will was never that state, and could not be rightfully
proved, or administration taken out in exercised to pass estates lying in an.
any probate court of Rhode Island. other state. The sale, therefore, made
But the executrix, in November, 1791, by the executrix to Moses Brown and
sold the demanded premises to one Oziel Wilkinson, in virtue of the said
Moses Brown and Oziel Wilkinson, license, was utterly void; and the deed
upiler whom the defendant here given thereupon was, proprio vigore,
claims, by a deed, in which she recites inoperative to pass any title of the tes-
her authority to sell as aforesaid, and tator to any lands described therein.
purports to act as executrix in the It was a mere nullity.
sale. The purchasers, however, not Upon the death of the testator, his
being satisfied with her authority to lands in Rhode Island, if not devised,
make the sale, she entered into a cowere cast by descent upon bis heirs,
venant with them on the same day, by according to the laws of that state. If
which she bound herself to procure an devised, they would pass to his devi.
act of the legislature of Rhode Island, sees according to the legal intendment
ratifying and confirming the title so of the words of the devise. But, by
granted ; and, on failure thereof, to the laws of Rhode Island, the probate
repay the purchase money, &c. &c. of a will in the proper probate court is
She accordingly made an application understood to be an indispensable pre-
to the legislature of Rhode Island for liminary to establish the right of the
this purpose, stating the facts in her devisee, and then his title relates back
petition, and thereupon an act was to the death of the testator. No pro-
passed by the legislature, at June ses- bate of this will has ever been made in
sion, 1792, granting the prayer of her any court of probate in Rhode Island;
petition and ratifying the title. The but that objection is not now insisted
terms of this act we shall have occa on; and if it were, and the act of 1792
sion hereafter to consider. In Februa is to have any operation, it must be
ry, 1792, she settled her administra considered as dispensing with or su-
tion account in the probate court in perseding that ceremony.
New-Hampshire, and thereupon the 'The objections taken by the defen-
balance of £15 78. 7d. only remained dants to this act, are, in the first place,
in her hands for distribution.

that it is void as an act of legislation,
Such are the material facts; and because it transcends the authority
the questions discussed at the bar ul. which the legislature of Rhode Island
timately resolve themselves into the can rightfully exercise under its pre-
consideration of the validity and effect sent form of government. And, in
of the act of 1792. If that act was the next place, that it is void, as an act
constitutional, and its terms, when of confirination, because its terms are
properly construed, amount to a legal not such as to give validity to tho sale
confirmation of the sale and the pro- and deed, so as to pass the title of the
ceedings thereon, then the plainriff is testator, even if it were otherwise con-
entitled to judgment, and the judge stitutional.
ment below was erroneous. If other The first objection deserves grave
wise, then the judgment ought to be consideration from its general import-

ance. To all that has been said at


at the


the bar upon the danger, inconve- of Magna Charta were to be disregardnience and mischiefs of retrospective ed, or that the estates of its subjects legislation in general, and of acts of were liable to be taken away without the character of the present in particue trial, without notice, and without of lar, this court has listened with atten- fence. Even if such authority could tion, and felt the full force of the rea- be deemed to have been confided by soning. It is an exercise of power, the charter to the general assembly of which is of so suinmary a nature, so Rhode Island, as an exercise of tranfraught with inconvenience, so liable scendental sovereignty before the reto disturb the security of titles, and to volution, it can scarcely be imagined spring by surprise upon the innocent that that great event could have left and unwary, to their injury and some the people of that state subjected to its times to their ruin; that a legislature uncontrolled and arbitrary exercise. invested with the power, can scarcely That government can scarcely be be too cautious or too abstemious in deemed to be free, where the rights of the exertion of it.

property are left solely dependent upon We must decide this objection, how the will of a legislative body, without ever, not upon principles of public po- any restraint. The fundamental licy, but of power; and precisely as maxims of a free government seem to the state court of Rhode Island itself require, that the rights of personal liought to decide it.

berty and private properly should be Rhode Island is the only state in the held sacred. At least no court of jusunion which has not a written consti tice in this country would be warranttution of government, containing its ed in assuming, that the power to viofundamental laws and institutions. late and disregard them; a power so Until the revolution in 1776, it was go repugnant to the common principles verned by the charter granted by of justice and civil liberty; lurked unCharles II. in the fifteenth year of his der any general grant of legislative reign. That charter has ever since authority, or ought to be implied from continued in its general provisions to any general expressions of the will of regulate the exercise and distribution the people. The people ought not of the powers of government. It has to be presumed to part with rights so never been formally abrogated by the vital to their security and well being, people; and, except so far as it has without very strong and direct expresbeen modified to meet the exigencies síons of such an intention. In Terret of the revolution, may be considered vs. Taylor, 9 Cranch, 43, it was held as now a fundamental law. By this by this court, that a grant or title to charter the power to make laws is lands once made by the legislature to granted to the general assembly in the any person or corporation is irrevocamost ample manner, "so as such ble, and cannot be re-assumed by any laws, &c. be not contrary and repug. subsequent legislative act; and that a nant unto, but as near as may be different doctrine is utterly inconsistagreeable to the laws, &c. of England, ent with the great and fundamental considering the nature and constitution principle of a republican government, of the place and people there.” What and with the right of the citizens to the is the true extent of the power thus free enjoyment of their property lawgranted, must be open to explanation, fully acquired. We know of no case, as well by usage, as by construction in which a legislative act to transfer of the terms in which it is given. In the property of A. to B. without his a government professing to regard the consent, has ever been held a constigreat rights of personal liberty and of tutional exercise of legislative power property, and which is required to le- in any state in the union. On the congislate in subordination to the general trary, it has been constantly resisted, laws of England, it would not lightly as inconsistent with just principles, by be presumed that the great principles every judicial tribunal in which it has

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