James Mitchell Varnum fought against English rule in the American Revolution as one of George Washington’s generals. Then shortly after the war he fought for the rule of English law in a Rhode Island courtroom.
The case, one of the most famous in U.S. history, involved the right to refuse paper money and the right to a trial by jury. It set the precedent that the courts have a right to review and strike down laws deemed unconstitutional.
James Mitchell Varnum
James Mitchell Varnum was a giant of a man, a competent, energetic self-promoter who liked to live large. He bought land behind the Kent County Courthouse in East Greenwich, R.I., and built a mansion on it. There he entertained a who’s who of the Revolutionary elite, including George Washington, Marquis de Lafayette, Comte de Rochambeau, John Sullivan and Nathanael Greene.
Born in Dracut, Mass., on Dec. 17, 1748, he began studying at Harvard, but transferred to Brown. By 22 he was married to Martha Child and a member of the bar. He entered the Army when the American Revolution broke out, fought in several engagements and advocated that freed African-American slaves be allowed to enlist. He ended his military service as a brigadier general, and the Rhode Island General Assembly appointed him to the U.S. Congress. Two years later he returned to his law practice.
In September of 1786, a Newport, R.I., cabinetmaker named John Trevett tried to buy a joint of meat from a butcher named John Weeden. Trevett offered paper money, but Weeden demanded hard cash: gold or silver. Trevett then sued.
Under a brand-new state law, Rhode Islanders had to accept paper money as legal currency or pay a fine of 100 pounds. Then the General Assembly passed a law that said anyone who broke the law would not be tried by jury. The reason? They thought no jury would convict someone for refusing to accept paper money, largely considered worthless.
Trevett decided to sue. John Weeden chose James Mitchell Varnum as his defense lawyer. He chose wisely.
Trial By Jury
James Mitchell Varnum argued, in essence, that depriving citizens of the right to a jury trial violated Rhode Island’s constitution.
But Rhode Island in 1786 did not have a constitution. In fact, Rhode Island didn’t have a constitution until 1842.
It had, instead, the royal charter of 1663 that Charles II had granted the colony. Under the charter the rights enshrined in the Magna Carta and other fundamental laws of England were granted to the people of Rhode Island. After receiving the royal charter, the General Assembly passed a law that guaranteed to freemen trial by jury.
Trevett v. Weeden
In arguing for John Weeden, James Mitchell Varnum made a novel argument novel for the time: The legislature is subordinate to the constitution, and the courts have the power to decide if the laws it passes are constitutional.
In an eloquent courtroom plea, he asked why did the people endure,
a long, painful and bloody war, but to secure inviolate and to transmit unsullied for posterity, the inestimable privileges they received from their forefathers?
The right to a jury trial was one of those privileges, he said. And power must be limited to protect the liberties of citizens.
The five justices of the Superior Court of Judicature didn’t rule. Instead, they dismissed the case – in essence, a victory for John Trevett and James Mitchell Varnum.
Seventeen years later, though, the case set a precedent for Marbury v. Madison. In that ruling, the U.S. Supreme Court held that courts have the power to strike down laws.
Trevett vs. Weeden has since been called ‘one of the earliest and most renowned cases of judicial review.’
The controversy didn’t end in that Rhode Island courthouse, however. The General Assembly, which at the time appointed the judges to the state’s high court, called them on the carpet. Lawmakers demanded the five judges appear before it to explain their decision, and then moved to dismiss them.
Judge David Howell appeared and argued for an independent judiciary. John Mitchell Varnum argued the judges were entitled to due process and that the legislature couldn’t just fire them.
The General Assembly’s motion to dismiss the judges failed, but lawmakers got their payback by refusing to reappoint four of them when their terms expired. They also exacted revenge on James Mitchell Varnum by ousting him from his seat in the U.S. Congress.
All this took place as delegates prepared to assemble for the first constitutional convention in the United States. James Mitchell Varnum, hoping to influence the outcome, wrote a pamphlet about Trevett v. Weeden and circulated it in Philadelphia.
One could argue the Trevett v. Weeden trial cost him his life. No longer a congressman, he received an appointment as a supreme judge of the Northwest Territories. In 1788, he made the long journey westward to Marietta, Ohio, caught tuberculosis and died on Jan. 9, 1789. He had just reached 40 years of age.
Today, the John Mitchell Varnum House is open to the public during the summer.
Varnum’s concept of judicial review wasn’t enshrined in the Rhode Island constitution until 2004, as an amendment.
Images: James Mitchell Varnum House by By Kenneth C. Zirkel - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=62728157; Old Colony House By Kenneth C. Zirkel - Own work, CC BY-SA 4.0, https://commons.wikimedia.org/w/index.php?curid=58527502.