66 66 "you would have seen in a strong light how little probable "it is a judge would ever give such a judgment, where he "thought he could possibly avoid it. But whatever may "be the consequences, formed as our Constitution is, I can"not help thinking they are not at liberty to choose, but "must in all questionable instances decide upon it. It is a 'subject indeed of great magnitude, and I heartily lament "the occasion for its discussion. In all doubtful cases, to "be sure, the Act ought to be supported: it should be un"constitutional beyond dispute before it is pronounced such. "I conceive the remedy by a new election to be of very "little consequence, because this would only secure the "views of a majority; whereas every citizen in my opinion "should have a surer pledge for his constitutional rights 'than the wisdom and activity of any occasional majority "of his fellow-citizens, who, if their own rights are in fact "unmolested, may care very little for his.-I believe many "think as you do upon this subject, though I have not "heard much said about it, and I only speak on the general "question, independent of an application to any case "whatever. Most of the lawyers, I believe, are of my "opinion in regard to that. The power of the judges, take "it altogether, is indeed alarming, as there is no appeal "from their jurisdiction, and I don't think any country "can be safe without some Court of Appeal that has no "original jurisdiction at all, since men are commonly care"ful enough to correct the errors of others, though seldom 'sufficiently watchful of their own, especially if they have "no check upon them. 66 "JAS. IREDELL." No. 5. Further consideration of the decision of Bayard v. Singleton. The foregoing decision is of the greatest constitutional moment not only from its inherent value, but also from its connection with both previous and with subsequent history. Its several points must therefore be restated with some of their relations to other points of law discussed elsewhere in this Essay. I. In the first place it must be precisely understood that the law of the land, that is so all important in the decision, was the law of the land of North Carolina, just as in Trevett v. Weeden it was the law of the land of Rhode Island that was all important. This is clear from the language of the court in speaking of the constitution of the state "as "the fundamental law of the land" and also in speaking of "a fair decision of the property in question by a jury, "according to the common law of the land." The confederation is called by the court "a part of the law of the "land," that is to say the confederation of the United States was a part of the law of the land of North Carolina, which was one of the United States. II. In the next place it will be observed that the court was of opinion that by the constitution of North Carolina every citizen of the state had undoubtedly a right to the trial by jury, and that the legislature of the state could not take away this right by any act they might pass. This position coincides perfectly with that taken by Varnum in Trevett v. Weeden and approved by the court in that case. The sole difference between Trevett v. Weeden and Bayard v. Singleton is that the former case arose under an unwritten constitution, and the latter under a written one. In both cases the trial by jury was regarded as the sole trial according to the law of the land. In North Carolina the court recommended the parties to consent to a decision of the property "by a jury according to the common law of the land." In Rhode Island Judge Tillinghast held that a trial without a jury was not a trial according to the laws of the land.* III. In the third place, the court was of opinion that the constitution of North Carolina stood in full force" as the fundamental law of the land of North Carolina and that the legislature of the state could not repeal or alter the said constitution. *See page 246, ante. IV. The reason in the opinion of the court, why the legislature of the state could not pass any act repealing or altering the constitution of the state, was this: If the legislature could pass such an act, they would, eo instante, destroy their own existence as a legislature, and dissolve the government established by the constitution. The position is so identical with that taken by Varnum in Trevett v. Weeden, that it must be assumed to have been taken from his argument. That Varnum's position on this head was approved by his court can not be doubted. Thus the Superior Courts of North Carolina and Rhode Island agreed on this head within a year of each other. V. The court distinctly was of opinion that the judicial power was bound to take as much notice of the constitution of the state as any other law whatever. This is precisely the doctrine which Marshall elaborates in Marbury v. Madison at great length. IV. The court decided that the act of the general assembly was made in alteration of the constitution, that it was the ground upon which the motion before the court was made, and that it must "in that instance, stand as abro"gated and without any effect." The action of the Superior Courts of North Carolina and Rhode Island were in singular agreement under different kinds of constitutions. Both refused a trial without a jury. VII. The court decided that the confederation was part of the law of the land of North Carolina and could not be repealed by any act of the general assembly of North Carolina. As will be shown hereafter the constitution of the United States is part of the law of the land of North Carolina. The relation between these two propositions is of great importance. VIII. The court decided that the plaintiffs "being citizens "of one of the United States, are citizens of this state, by the "confederation of all the states," and so had the same right to a trial by jury in North Carolina as the citizens of that state. Thus a trial by the law of the land of North Carolina was in that state the right of the citizens of every other state, because the confederation was to be taken as part of the law of the land of North Carolina. No. 6. Of the date when the decision in Bayard v. Singleton became known to the Framers' convention. It is, perhaps, an open question whether the constitutional decision in Bayard v. Singleton was known in Philadelphia on June 6, 1786. If it was not then known, the case can not be one of those alluded to by Gerry in his speech above mentioned.* The decision could not have been rendered earlier than Monday, May 21st, or later than Thursday, May 31st. These dates are based on the then existing legislation concerning the May Term of the Superior Court, which was held at Newbern and comprised the last ten working days of the month of May. See Iredell's Laws of North Carolina, Edenton, 1791, page 528. With southerly winds and other favorable circumstances, communication by water between Newbern and Philadelphia may have been made in seven or eight days. Communication by land must have taken a good deal more time. On August 12th, 1787, Spaight in Philadelphia wrote his letter to Iredell in North Carolina. Iredell's answer is dated fourteen days later, on August 26th. See Iredell's Life, vol. 2, pages 168, 172. There are two arguments in favour of no time being lost in sending the news of the decision to Philadelphia. Davie, who was Iredell's colleague as counsel for the plaintiffs, was attending the Framer's convention as a member from North Carolina. Spaight was another member from that state, who had the keenest interest in the case and who became a leading opponent of the decision. If the decision was not known in Philadelphia on June *See page 219, ante. 6th, it must have become so soon after, that is to say, a good while before the critical date of July 17th. On that day the convention adopted nem. con. Martin's resolution which provided a judicial method of settling conflicts between the laws of the Union and those of the states. Elliot's Debates, page 322. See 5 CHAPTER XXVII. Further considerations connected with the foregoing cases and especially that of Rutgers v. Waddington. Bayard v. Singleton and Rutgers v. Waddington are thus in direct contradiction as to the nature of written constitutions. The New York court decided in express terms that Blackstone's tenth rule for construing statutes applied in New York although the constitution was a written one. On the other hand, the North Carolinian court, because the constitution was written, gave a decision which made Blackstone's rule illegal and inapplicable in that state. Every statute conflicting with the constitution must be judicially held void in North Carolina, while legal right in New York was just the contrary. The two cases under written constitutions are in conflict. The case of Trevett v. Weeden can not turn the balance between them, because it arose under an unwritten constitution. In 1787 conflicts between state laws and federal treaties were a source of the greatest difficulty to the federal Congress. At the same date future conflicts between state laws or constitutions and the new constitution laws or treaties of the United States were the subject of the deepest thought |