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Orleans, in favour of R. L. Colt, a citizen of Maryland, who endorsed the same to the plaintiff, a citizen of New-York. The action was brought in the circuit court of the United States for the district of Maryland; and upon a case agreed, stating the above facts, the judges of that court were divided in opinion, whether they could entertain jurisdiction of the cause upon the ground insisted upon by the defendants' counsel, that the bill was to be considered as inland. The difficulty which occasioned the adjournment of the cause to this court, is produced by the 11th section of the judiciary act of 1789, which declares, that no district or circuit court shall have "cognizance of any suit to recover the contents of any promissory note, or other chose in action, in favour of an assignee, unless a suit might have been prosecuted in such court to recover the said contents, if no assignment had been made, except in cases of foreign bills of exchange."

The only question is, whether the bill on which the suit is founded, is to be considered a foreign bill of exchange?

It is to be regretted that so little aid, in determining this question, is to be obtained from decided cases, either in England or in the United States.

Sir William Blackstone, in his Commentaries, distinguishes foreign from inland bills, by defining the former as bills drawn by a merchant residing abroad upon his correspondent in England, or vice versa; and the latter as those drawn by one person on another, when both drawer and drawee reside within the same kingdom. Chitty, p. 16, and the other writers on bills of exchange, are to the same effect; and all of them agree, that until the statutes of 8 and 9 W. III. ch. 17, and 3 and 4 Anne, ch. 9, which placed these two kinds of bills upon the same footing, and subjected inland bills to the same law and custom of merchants which governed foreign hills; the latter were much more regarded in the eye of the law

than the former, as being thought of more public concern in the advancement of trade and commerce.

Applying this definition to the political character of the several states of this Union, in relation to each other, we are all clearly of opinion, that bills drawn in one of these states, upon persons living in any other of them, partake of the character of soreign bills, and ought so to be treated. For all national purposes embraced by the federal constitution, the states and the citizens thereof are one, united under the same sovereign authority, and governed by the same Jaws. In all other respects, the states are necessarily foreign to, and independent of each other. Their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions. This sentiment was expressed, with great force, by the president of the court of appeals of Virginia, in the case of Warder vs. Arrell, 2 Wash. 298; where he states, that in cases of contracts, the laws of a foreign country, where the contract was made, must govern; and then adds as follows:-"The same principle applies, though with no greater force, to the different states of America; for though they form a confederated government, yet the several states retain their individual sovereignties, and, with respect to their municipal regulations, are to each other foreign."

This character of the laws of one state in relation to the others, is strongly exemplified in the particular subject under consideration; which is governed, as to the necessity of protest and rate of damages, by different rules in the different states. In none of these laws, however, so far as we can discover from Griffith's Law Register, to which we were referred by the counsel, except those of Virginia, are bills, drawn in one state upon another, designated as inland; although the damages allowed upon protested bills of that description, are generally, and with great propriety, lower than upon bills drawn upon a country fo

reign to the United States, since the disappointment and injury to the holder must always be greater in the latter, than in the former case. It is for the same reason, no doubt, that, by the laws of most of the states, bills drawn in and upon the same state, and protested, are either exempt from damages altogether, or the rate is lower upon them, than upon bills drawn on some other of the states.

The only case, which was cited at the bar, or which has come to our knowledge, to show that a bill drawn in one state upon a person in any other of the states, is an inland bill, is that of Miller vs. Hackley, 5 Johns. Rep. 375. Alluding to this case, in the third volume of his Commentaries, p. 63, in a note, Chancellor Kent remarks very truly, that the opinion was not given on the point on which the decision rested; and he adds, that it was rather the opinion of Mr. Justice Van Ness than that of the court. It is not unlikely, besides, that that opinion was, in no small degree, influenced by what is said by Judge Tucker in a note to 2 Black. Com. 467; which was much relied upon by one of the counsel in the argument, where the author would appear to define an inland bill, as being one drawn by a person residing in one state on another within the United States. He is so understood by Chancellor Kent, in the passage which has been referred to: but this is undoubtedly by a mistake, as the note manifestly refers to the laws of Virginia; and by an act of that state, passed on the 28th of December, 1795, it is expressly declared, that all bills of exchange drawn by any person residing in that state, on a person in the United States, shall be considered, in all cases, as inland bills. The case of Miller vs. Hackley, therefore, can hardly be considered as an authority for the position which it was intended to maintain. We think it cannot be so considered by the courts of New-York, since the principle supposed to be decided in that case, would seem to be directly at variance with the uniform decisions of

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the same courts upon the subject of judgments rendered in the tribunals of the sister states. In the case of Hitchcock vs. Aicken, 1 Caines, 460, all the judges seem to have treated those judgments as foreign in the courts of New-York; and the only point of difference between them grew out of the construction of the 1st section of the 4th article of the constitution of the United States, and the act of congress of the 26th of May, 1790, ch. 38, respecting the effect of those judgments, and the credit to be given to them in the courts of the sister states.

It would seem, from a note to the case of Bartlett vs. Knight, 1 Mass. Rep. 430, where a collection of state decisions on the same subject is given, that these judgments had generally, if not universally, been considered as foreign by the courts of many of the states. If this be so, it is difficult to understand upon what principle bills of exchange drawn in one state upon another state can be considered as inland; unless in a state where they are declared to be such by a statute of that state.

It has not been our good fortune to see the case of Duncan vs. Course, 1 South Carolina Constitutional Reports, 100; but the note above referred to in 8 Kent's Com. informs us, that it decides that bills of this description are to be considered in the light of foreign bills; and the learned commentator concludes, upon the whole, and principally upon the ground of the decision just quoted, that the weight of American authority is on that side.

That it is so, in respect to the necessity of protesting bills of that description, was not very strenuously controverted by the counsel for the defendant. But he insists, that under a just construction of the 11th section of the judiciary act, concerning the jurisdiction of the federal courts, these bills ought to be considered and treated as inland. The argument is, that the mischief intended to be remedied by the provisions in the latter part of

that section, by the assignment of promissory notes and other choses in action, is the same in relation to bills of exchange of the character under consideration.

We are of a different opinion. The policy which probably dictated this provision in the above section, was to prevent frauds upon the jurisdiction of those courts by pretended assignments of bonds, notes, and bills of exchange strictly inland; and as these evidences of debt generally concern the internal negotiations of the inhabitants of the same state, and would seldom find their way fairly into the hands of persons residing in another state; the prohibition, as to them, would impose a very trifling restriction, if any, upon the commercial intercourse of the different states with

each other. It is quite otherwise as to bills drawn in one state upon another. They answer all the purposes of remittances, and of commercial facilities, equally with bills drawn upon other countries, or vice versa; and if a choice of jurisdictions be important to the credit of bills of the latter class, which it undoubtedly is, it must be equally so to that of the former.

Nor does the reason for restraining the transfer of other choses in action apply to bills of exchange of this description, which, from their com

ercial character, might be expected to pass fairly into the hands of persons residing in the different states of the Union. We conclude, upon the whole, that in no point of view ought they to be considered otherwise than as foreign bills.

David Wilkinson vs. Thomas Leland & al.

In this cause, a bill of exceptions was taken, on which a judgment pro forma was entered, to obtain the final decision of the supreme court, as to the validity of an act of the legislature of Rhode Island.

The facts are stated in the opinion of the court.

Mr. Whipple and Mr. Wirt appeared for the plaintiff.

Mr. Webster and Mr. Hubbard for the defendant.

dict was taken for the plaintiffs, and a bill of exceptions allowed upon a pro forma opinion given by the court in favour of the plaintiffs, to enable the parties to bring the case before this court for a final determination. The only questions which have been discussed at the bar arise under this bill of exceptions.

The facts are somewhat complicated in their details, but those which are material to the points before us may be

Mr. Justice Story delivered the opi- summed up in a few words. nion of the court.

This is a writ of error to the circuit court of the district of Rhode Island, in a case where the plaintiff in error was defendant in the court below. The original action was an ejectment, in the nature of a real action, according to the local practice, to recover a parcel of land in North Providence in that state. There were several pleas pleaded of the statute of limitations, upon which it is unnecessary to say any thing, as the questions thereon have been waived at the bar. The cause was tried upon the general issue; and, by consent of the parties, a ver

The plaintiffs below are the heirs at law of Cynthia Jenckes, to whom her father, Jonathan Jenckes, by his will in 1787, devised the demanded premises in fee, subject to a life estate then in being, but which expired in 1794. By his will, Jonathan Jenckes appointed his wife Cynthia, and one Arthur Fenner, executrix and executor of his will. Fennet never accepted the appointment. At the time of his death, Jonathan Jenckes lived in New-Hampshire, and after his death his widow duly proved the will in the proper court of probate in that state, and took upon herself the administration of the estate

as executrix. The estate was represented insolvent, and commissioners were appointed in the usual manner, to ascertain the amount of the debts. The executrix, in July, 1790, obtained a license from the judge of probate in New-Hampshire, to sell so much of the real estate of the testator, as, together with his personal estate, would be sufficient to pay his debts and incidental charges. The will was never proved, or administration taken out in any probate court of Rhode Island. But the executrix, in November, 1791, sold the demanded premises to one Moses Brown and Oziel Wilkinson, under whom the defendant here claims, by a deed, in which she recites her authority to sell as aforesaid, and purports to act as executrix in the sale. The purchasers, however, not being satisfied with her authority to make the sale, she entered into a covenant with them on the same day, by which she bound herself to procure an act of the legislature of Rhode Island, ratifying and confirming the title so granted; and, on failure thereof, to repay the purchase money, &c. &c. She accordingly made an application to the legislature of Rhode Island for this purpose, stating the facts in her petition, and thereupon an act was passed by the legislature, at June session, 1792, granting the prayer of her petition and ratifying the title. The terms of this act we shall have occasion hereafter to consider. In February, 1792, she settled her administration account in the probate court in New-Hampshire, and thereupon the balance of £15 7s. 7d. only remained in her hands for distribution.

Such are the material facts; and the questions discussed at the bar ultimately resolve themselves into the consideration of the validity and effect of the act of 1792. If that act was constitutional, and its terms, when properly construed, amount to a legal confirmation of the sale and the proceedings thereon, then the plaintiff is entitled to judgment, and the judgment below was erroneous. If otherwise, then the judgment ought to be affirmed.

It is wholly unnecessary to go into an examination of the regularity of the proceedings of the probate court in New-Hampshire, and of the order or license there granted to the executrix to sell the real estate of the testator. That cause could have no legal operation in hode Island. The legislative and judicial authority of New-Hampshire were bounded by the territory of that state, and could not be rightfully exercised to pass estates lying in another state. The sale, therefore, made by the executrix to Moses Brown and Oziel Wilkinson, in virtue of the said license, was utterly void; and the deed given thereupon was, proprio vigore, inoperative to pass any title of the testator to any lands described therein. It was a mere nullity.

Upon the death of the testator, his lands in Rhode Island, if not devised, were cast by descent upon his heirs, according to the laws of that state. If devised, they would pass to his devisees according to the legal intendment of the words of the devise. But, by the laws of Rhode Island, the probate of a will in the proper probate court is understood to be an indispensable preliminary to establish the right of the devisee, and then his title relates back to the death of the testator. bate of this will has ever been made in any court of probate in Rhode Island; but that objection is not now insisted on; and if it were, and the act of 1792 is to have any operation, it must be considered as dispensing with or superseding that ceremony.

No pro

The objections taken by the defendants to this act, are, in the first place, that it is void as an act of legislation, because it transcends the authority which the legislature of Rhode Island can rightfully exercise under its present form of government. And, in the next place, that it is void, as an act of confirmation, because its terms are not such as to give validity to the sale and deed, so as to pass the title of the testator, even if it were otherwise constitutional.

The first objection deserves grave consideration from its general importance. To all that has been said at

the bar upon the danger, inconvenience and mischiefs of retrospective legislation in general, and of acts of the character of the present in particular, this court has listened with attention, and felt the full force of the reasoning. It is an exercise of power, which is of so summary a nature, so fraught with inconvenience, so liable to disturb the security of titles, and to spring by surprise upon the innocent and unwary, to their injury and sometimes to their ruin; that a legislature invested with the power, can scarcely be too cautious or too abstemious in the exertion of it.

We must decide this objection, however, not upon principles of public policy, but of power; and precisely as the state court of Rhode Island itself ought to decide it.

Rhode Island is the only state in the union which has not a written constitution of government, containing its fundamental laws and institutions. Until the revolution in 1776, it was governed by the charter granted by Charles II. in the fifteenth year of his reign. That charter has ever since continued in its general provisions to regulate the exercise and distribution of the powers of government. It has never been formally abrogated by the people; and, except so far as it has been modified to meet the exigencies of the revolution, may be considered as now a fundamental law. By this charter the power to make laws is granted to the general assembly in the most ample manner, 66 so as such laws, &c. be not contrary and repugnant unto, but as near as may be agreeable to the laws, &c. of England, considering the nature and constitution of the place and people there." What is the true extent of the power thus granted, must be open to explanation, as well by usage, as by construction of the terms in which it is given. In a government professing to regard the great rights of personal liberty and of property, and which is required to legislate in subordination to the general laws of England, it would not lightly be presumed that the great principles

of Magna Charta were to be disregarded, or that the estates of its subjects were liable to be taken away without trial, without notice, and without offence. Even if such authority could be deemed to have been confided by the charter to the general assembly of Rhode Island, as an exercise of transcendental sovereignty before the revolution, it can scarcely be imagined that that great event could have left the people of that state subjected to its uncontrolled and arbitrary exercise. That government can scarcely be deemed to be free, where the rights of property are left solely dependent upon the will of a legislative body, without any restraint. The fundamental maxims of a free government seem to require, that the rights of personal liberty and private property should be held sacred. At least no court of justice in this country would be warranted in assuming, that the power to violate and disregard them; a power so repugnant to the common principles of justice and civil liberty; lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well being, without very strong and direct expressíons of such an intention. In Terret vs. Taylor, 9 Cranch, 43, it was held by this court, that a grant or title to lands once made by the legislature to any person or corporation is irrevocable, and cannot be re-assumed by any subsequent legislative act; and that a different doctrine is utterly inconsistent with the great and fundamental principle of a republican government, and with the right of the citizens to the free enjoyment of their property lawfully acquired. We know of no case, in which a legislative act to transfer the property of A. to B. without his consent, has ever been held a constitutional exercise of legislative power in any state in the union. On the contrary, it has been constantly resisted, as inconsistent with just principles, by every judicial tribunal in which it has

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