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The decision of the Court was in full accord with Iredell's views. The judges held that by the constitution of the State “every citizen had undoubtedly a right to a decision of his property by a trial by jury.
That it was clear that no act they (the legislature] could pass could by any means repeal or alter the constitution." Like the New York and the Rhode Island case, this aroused much opposition. The leading champion of legislative supremacy was Richard Dobbs Spaight. He had been a member of the North Carolina convention that framed the State constitution, was afterwards Governor of the State, and at the time of the publication of his letter attacking the Court, was in actual attendance at the Federal Convention as a delegate from North Carolina.
“To these positions, not unconfidently urged, I answer:
"1. That the remedy by petition implies a supposition, that the electors hold their rights by the favour of their representatives. The mere stating of this is surely sufficient to excite any man's indignation. What! if the Assembly say, we shall elect only once in two years, instead of electing annually, are we to petition them to repeal this law? To request that they will be graciously pleased not to be our tyrants, but to allow us the benefit of the government we ourselves have chosen, and under which they alone derive all their authority?
"But 2. The whole people may resist. A dreadful expedient indeed. We well know how difficult it is to excite the resistance of a whole people, and what a calamitous contingency, at best, this is to be reduced to. But it is a sufficient answer, that nothing can be powerful enough to effect such a purpose in a government like ours, but universal oppression. ... How many things have been done by majorities of a large body in heat and passion, that they themselves afterwards have repented of! Besides, would the minority choose to put themselves in the power of a majority? Few men, I presume, are always in a majority.
He denied that the judiciary possessed any such power. It would, he said, “have been absurd and contrary to the practice of all the world, had the constitution vested such power in them.” The General Assembly, he contended, represented the people of the State, and the people's will was not subject to the will of three individuals, the incumbents of the bench. Such power in the judges "would be more despotic than the Roman decemvirate and equally insufferable."ı
In reply Iredell, on August 26, 1787, addressed a letter to Spaight which was received during the course of the proceedings of the Philadelphia Convention.
Iredell reiterated his conviction, that an act of the legislature inconsistent with the constitution was
“These two remedies, then, being rejected, it remains to be inquired whether the judicial power hath any authority to interfere in such a
The duty of that power, I conceive, in all cases, is to decide according to the laws of the State. It will not be denied, I
suppose, that the constitution is a law of the State, as well as an act of Assembly, with this difference only, that it is the fundamental law, and unalterable by the legislature, which derives all its power from it. One act of Assembly may repeal another act of Assembly. For this reason, the latter act is to be obeyed, and not the former. An act of Assembly cannot repeal the constitution, or any part of it. For that reason, an act of Assembly, inconsistent with the constitution, is void, and cannot be obeyed, without disobeying the superior law to which we were previously and irrevocably bound. The judges, therefore, must take care, at their peril, that every act of Assembly they presume to enforce is warranted by the constitution, since if it is not, they act without lawful authority."
I McRee's Iredell, ii., 169, 170.
void, and that the judges would not carry it into effect. The constitution, he said, appears to be a fundamental law, which limits the powers of the legislature, and with which every exercise of those powers must necessarily be compared. Without an express constitution the powers of the legislature would undoubtedly have been absolute (as the Parliament in Great Britain is held to be), and any act passed not inconsistent with natural justice (for that curb is avowed by the judges even in England) would have been binding on the people. After depicting the danger in rule by an unrestrained majority, the letter continued:
The Constitution, therefore, being a fundamental law, and a law in writing of the solemn nature I have mentioned (which is the light in which it strikes me), the judicial power, in the exercise of their authority, must take notice of it as the groundwork of that as well as of all other authority; and as no article of the Constitution can be repealed by a legislature, which derives its whole power from it, it follows either that the fundamental unrepealable law must be obeyed, by the rejection of an act unwarranted by and inconsistent with it, or you must obey an act founded on an authority not given by the people, and to which, therefore, the people owe no obedience. It is not that the judges are appointed arbiters, and to determine as it were upon any application, whether the Assembly have or have not violated the Constitution; but when an act is necessarily brought in judgment before them, they must, unavoidably, determine one way or another.
Iredell conceded the possibility of abuse of this judicial power, but considered the danger not serious, and in conclusion said:
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 careful enough to correct the errors of others, though seldom sufficiently watchful of their own, especially if they have no check upon them.
There can be little doubt that the Court's decision, which had been made in May, the state of feeling which it had aroused in North Carolina, and Iredell's letter to Spaight, were well known to the members of the Philadelphia Convention.
IMPORTANT ACTION BY CONGRESS OF THE
Among the causes leading to the Philadelphia Convention was the disquietude of the government of the Confederation over the unwillingness of some States to abide by the stipulations imposed by the treaty of 1783. These had been resented in New York in the trespass act which was under consideration in Rutgers v. Waddington.
The Congress of the Confederation felt impelled in earnest terms to urge obedience to the treaty upon the States, and accordingly on March 21, 1787, it recom
mended the several States to enact identical laws of the following tenor:
Whereas certain laws or statutes made and passed in some of the United States, are regarded and complained of as repugnant to the treaty of peace with Great Britain, by reason whereof not only the good faith of the United States, pledged by that treaty, has been drawn into question, but their essential interests under that treaty greatly affected, And whereas justice to Great Britain, as well as regard to the honour and interests of the United States, require that the said treaty be faithfully executed, and that all obstacles thereto, and particularly such as do or may be construed to proceed from the laws of this state, be effectually removed,
Therefore, Be it enacted by and it is hereby enacted by the authority of the same, that such of the acts or part of acts of the legislature of this state, as are repugnant to the treaty of peace between the United States and his Britannic Majesty, or any article thereof, shall be, and hereby are repealed. And further, that the courts of law and equity within this state be, and they hereby are directed and required in all causes and questions cognizable by them respectively, and arising from or touching the said treaty, to decide and adjudge according to the tenor, true intent, and meaning of the same, anything in the said acts, or parts of acts, to the contrary thereof in any wise notwithstanding.
The language of the resolution is a clear recognition of the propriety of judicial control over unconstitutional laws, almost insolent and defiant in its plainness of speech. Congress surely would not have advised the States to pass legislation directing and requiring the courts to decide and adjudge according to the tenor,