Stokes v. Rodman , 5 R.I. 405 ( 1858 )

By an act of the general assembly, concerning the Narragansett tribe of Indians, passed in 1822, it was, amongst other things, provided, "that no writ or process at law shall be brought against the said tribe, or any individual thereof, for the recovery of any debt contracted subsequently to the passing of this act; that it shall be the duty of all courts and justices in the state, in case any such writ or process be brought, to dismiss the same, and to adjudge double costs against the plaintiff." Dig. 1844, p. 472. This statute was undoubtedly passed to protect against their own improvidence and the cupidity of others the wretched remnant of this once powerful tribe, which from numbering, as estimated just prior to the landing at Plymouth, some 18,000 souls, who inhabited or domineered over the whole mainland territory of the state, as well as the islands within and around Narragansett Bay, and the eastern end of Long Island, has, by the combined influence of war, pestilence, and their own vices, dwindled down to about 130 persons of mixed race, resident on their reservation in the central part of the town of Charlestown, and now comprising only about one seventh of the area of that town. Similar legislation is found upon our statute books as early as 1718, and, from time to time modified as occasion required, has existed ever since. From the report of the commissioner of the tribe, made to the general assembly at its January session, 1858, it appears, that in addition to the above number of residents on the reservation, there are, as estimated, some 150 to 200 non-residents, who, scattered through the country, and engaged in different employments, claim, in some way, connection with the tribe. It would seem from the record that the defendant, one of these, resided and did business in Providence, and as a member of a firm there, became obliged by the note which forms the subject of this suit. Taking into view the obvious injustice of allowing this last class of members, who, from the mixture of race, had no distinctive mark, to be exempted from the usual remedies upon their contracts, the general assembly, in the revision of 1857, so modified the act of 1822, as to make it protect from suit only members of the tribe resident in the town of Charlestown. Rev. Stats. ch. 176, § 9, p. 426.

Now, the objection of the defendant, raised by his demurrer to the plaintiff's replication, is, in substance, that inasmuch as the note here sued, was given prior to the above modification of the law, the new statute ought not to be construed to retract upon the contract of the defendant, or, what he claims to be the same thing, to allow a remedy at law upon it; and, if it is to be so construed, that it becomes thereby obnoxious to art. 1, § 12, of the constitution, which prohibits the general assembly from passing any ex post facto law, or law impairing the obligation of contracts.

It is difficult to see the force of this objection, in either of the points of view suggested. The protection of the defendant against suit upon this note depended wholly upon the old statute, which is repealed, and necessarily ceased with it. The rule of construction referred to does not apply to the case at bar. By no legal legerdemain can a reservation of the protection against suits upon past contracts be imported into an act absolutely repealing the only law under which the protection could be claimed. The demurrer admits the statement in the replication, that the defendant did not, either at the time of contract, or at the time of the commencement of this action, reside in the town of Charlestown, or with the tribe; and it thus appears that he cannot claim the protection of the existing statute, construing it, as we do, to apply prospectively only; that is, to actions commenced after it went into operation.

Nor is the new legislation obnoxious to the constitutional objection urged. It does not retroact upon past contracts. The statute repealed applied to remedies only; and, in practice, turned the creditors of the tribe, or of any members of it, away from ordinary suits at law to recover their debts, to applications for relief to the general assembly, under whose wardship the tribe has been nearly ever since it was subdued in 1675. The new act is wholly prospective; since, only from its date forward did the old exemption from suits cease, and the modified exemption, applicable only to future suits, exist. But if it did retroact it would not be obnoxious to the objection taken. It would not be ex post facto; since it deals not with crimes, but with civil remedies only. It would not impair the obligation of contracts; for it only confers a greater sanction upon those impaired by the former statute — altered to meet the demands of justice under new circumstances.

The replication must be sustained as a good answer to the plea, and the cause stand for trial upon the general issue.