seum is evidently copied from that in the Providence Gazette. It only differs as to some omissions, which are of secondary importance. The statements of the judges' opinions in the Gazette and the Musuem are identical, except as to one word which has been noted in the footnote.

CHAPTER XXVI.

Of the law of North Carolina and the case of Den on the dem. of Bayard and Wife v. Singleton.

No. 1. Rehearsal of the case of Bayard v. Singleton according to the report in Martin's Reports.

No. 2. Further information concerning the case derived from other sources.

No. 3. Text of Iredell's letter of an Elector printed in Newbern on August 17th, 1786.

No. 4. Text of the letter of James Iredell to Richard Dobbs Spaight dated August 26th, 1787.

No. 5. Further reflections upon the case of Bayard v. Singleton.

No. 6. Of the date when the decision in Bayard v. Singleton became known to the Framers' convention.

The cause of Den on the dem. of Bayard and wife v. Singleton is the first reported case in which an act of a legislature was decided to be contrary to a written constitution. It arose in North Carolina before the Superior Court of that state. The date of the decision was in May Term, 1787. May Term comprehended the last ten working days of the month of May.

No. 1.

Rehearsal of the case of Bayard v. Singleton according to the report in Martin's Reports.*

This cause was an action of ejectment for the recovery of a lot of ground with a house and a wharf, in the town of Newbern in North Carolina. The defendant held under a title derived from the state of North Carolina, by a deed from a superintendent commissioner of confiscated estates. Nash for the defendant moved that the suit be dismissed according to an act for securing and quieting the possession of the purchasers of property sold by the commissioners of forfeited estates. This act required the courts, in all cases in which the defendant made affidavit that he held the disputed property under a sale from a commissioner of forfeited estates, to dismiss the suit on motion. Such an affidavit had been filed by the defendant.

The plaintiffs claimed title under a deed from Cornell, who was the father of Mrs. Bayard, and whose estates had been confiscated. The plaintiffs were not citizens of North Carolina, but of another state of the Union. Cornell had been a colonist of North Carolina, who refused to become a citizen of the state, and lived and died a British subject.

Nash's motion brought on "long arguments from the "counsel on each side, on constitutional points."

The court made a few observations on the constitution and system of government, and wished to be advised. Numerous like suits were involved in the fate of this

The foregoing proceedings took place at Newbern in May, 1786. In May, 1787, at the same place, Nash's motion was resumed and a very lengthy debate from the bar took place. Whereupon the court recommended the parties to consent to "a fair decision of the property in question, by a jury "according to the common law of the land." This recommendation, however, was without effect. Another mode was proposed for putting the matter in controversy on "a more constitutional footing for a decision," than that of * Martin's Reports (first division) pp. 48-52. Second Edition, I. pp. 42-48.

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a motion under the aforesaid act. This proposal also must have failed.

"The court then, after every reasonable endeavour had "been used in vain for avoiding a disagreeable difference "between the legislature and the judicial powers of the "state, at length with much apparent reluctance, but with "great deliberation and firmness, gave their opinion sepa"rately, but unanimously for overruling the aforemen"tioned motion for the dismission of the said suits.

"In the course of which the judges observed, that the "obligation of their oaths, and the duty of their office re"quired them in that situation, to give their opinion on "that important and momentous subject; and that not"withstanding the great reluctance they might feel against "involving themselves in a dispute with the legislature of "the state, yet no object of concern or respect could come "in competition or authorize them to dispense with the "duty they owed the public, in consequence of the trust "they were invested with under the solemnity of their "oaths.

"That they therefore were bound to declare that they "considered, that whatever disabilities the persons under "whom the plaintiffs were said to derive their titles, might "justly have incurred, against their maintaining or prose"cuting any suits in the Courts of the state; yet such dis"abilities in their nature were merely personal, and not by "any means capable of being transferred to the present "plaintiffs, either by descent or purchase; and that these "plaintiffs being citizens of one of the United States, are "citizens of this state, by the confederation of all the states; "which is to be taken as a part of the law of the land, un"repealable by any act of the General Assembly.

"That by the constitution every citizen had undoubtedly "a right to a decision of his property by a trial by jury. "For that if the legislature could take away this right, and "require him to stand condemned in his property without "a trial, it might with as much authority require his life "to be taken away without a trial by jury, and that he "should stand condemned to die, without the formality of

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any trial at all: that if the members of the General Assembly could do this, they might with equal authority, "not only render themselves the legislators of the state "for life, without any further election by the people, from "thence transmit the dignity and authority of legislation "down to their heirs male forever.

"But that it was clear, that no act they could pass, could "by any means repeal or alter the constitution, because if "they could do this, they would at the same instant of "time, destroy their own existence as a legislature, and dis"solve the government thereby established. Consequently "the constitution (which the judicial power was bound to "take notice of as much as any other law whatever), stand"ing in full force as the fundamental law of the land, not"withstanding the act on which the present motion was "grounded, the same act must of course, in that instance, "stand as abrogated and without effect."

In consequence of this decision, there was a trial by jury in the cause in November Term, 1787, in which the jury found a verdict for the defendant

No. 2.

Further information concerning the case derived from other sources.

The senior counsel for the plaintiff, the party in whose interest the statute was rejected as unconstitutional, was Iredell, afterwards judge of the Supreme Court of the United States. Another of the plaintiff's counsel was William R. Davie, one of Framers of the constitution, who was actually attending the convention in Philadelphia when the above decision was made at Newbern in May, 1787. The report in Martin's Reports was made by Judge Spencer, who sat in the case. He does not report the arguments of counsel. There is, however, no difficulty in ascertaining what must have been said by Iredell, who was leading spirit in the litigation and in the great question involved therein. It was he, who the year before had prepared the

way for such a litigation by an elaborate public letter discussing the great question, which was published at Newbern on August 17th, 1786.

Thus the doctrine of the case has a history previous to the decision in May Term, 1787. It had also a subsequent history which caused Iredell to write a second important paper concerning it. The decision of the Superior Court was an act of great civic courage. It created much excitement and was received with severe adverse criticism in North Carolina, where it was known in public discussion as the Newbern case. The three courageous magistrates who composed the court were Samuel Ashe, Samuel Spencer, and John Williams. President Battle in his history of the court ob

"These, our earliest judges, are entitled to the eminent "distinction of contesting with Rhode Island the claim of "being the first in the United States to decide that the "courts have the power and duty to declare an act of the "legislature, which in their opinion is unconstitutional, to "be null and void. The doctrine is so familiar to us, so "universally acquiesced in, that it is difficult for us to rea"lize that when it was first mooted, the judges who had the "courage to declare it were fiercely denounced as usurpers "of power. Spaight, afterwards governor, voiced a com"mon notion when he declared that 'the state was subject "to the three individuals, who united in their own persons "the legislative and judicial power, which no monarch in 'England enjoys, which would be more despotic than the "Roman triumvirate and equally insufferable.'. . . As I "have mentioned, the action of the court was the founda"tion of one of the charges brought by Hay [in the legisla"ture]. He accused them with dispensing with a law-the "Newbern case.' . . . The judges were eventually sus"tained by public opinion."

6.6

One of the most important of the adverse critics of the decision was Richard Dobbs Spaight, who opposed it from Philadelphia, where he was attending the Framers' conven

* 103 North Carolina Reports, pp. 472, 473.