the establishment of this far-reaching principle, but the case of Bayard vs. Singleton (1 N. C. 5), decided by the North Carolina court in May, 1787, is "the first reported case under a written constitution in which a law was decided unconstitutional and held therefore void." This is, therefore, the most celebrated case dealing with this question prior to the adoption of the Federal Constitution, and by reason of the transcendent importance of the principle announced, a reference to its contemporary history will not be out of place. The first judges elected after the adoption of our Constitution were Samuel Ashe, of New Hanover, Samuel Spencer, of Anson, and James Iredell, of Chowan. After riding one circuit Iredell resigned, and John Williams succeeded him, and this was the court that decided Bayard vs. Singleton. "For thirteen years, at a most critical period of our history, during the throes of the Revolutionary war, during the chaotic days of the nerveless Confederacy succeeding when the exhausted people, staggering under broken fortunes and a worthless currency, were bringing into order the State whose liberties they had won, during the stormy discussions preceding the adoption of the Constitution, which many thought would bring back the galling tyranny of Tryon and Martin— during all these times of despondency and poverty, of dissension and furious party spirit, these three were the entire judiciary-judges at nisi prius and judges in bank, judges of law and judges of equity, judges of the Superior and judges of the Supreme Court."† The court was designated as the "Superior Court," but it would have been more proper to have used the constitutional term "Supreme Court," as it had supreme jurisdiction. One judge could hold the court, but it required two judges to sit as an appellate or Supreme Court. *Coxe-Unconstitutional Legislation, p. 68. †Battle's History of the Supreme Court, 103 N. C. 469. BAYARD VS. SINGLETON. The case of Bayard vs. Singleton arose under an act of the General Assembly of 1785 to secure and quiet in their possession all persons who had purchased property sold by commissioners of forfeited estates, and the Act required the courts in all cases where the defendant made an affidavit that he held the disputed property under a sale from such a commissioner to dismiss the suit, on motion. The plaintiff, Bayard, brought ejectment for the recovery of a house and lot situate in the town of Newbern. The defendant filed an affidavit setting forth that the property in dispute had been sold by the commissioner of forfeited estates, and at May term, 1786, Abner Nash, a former Governor of the State, counsel for the defendant, moved that the suit be dismissed according to the terms of the Act. Alfred Moore, afterwards a Justice of the United States Supreme Court, appeared with Nash. James Iredell, a former member of the Court, and afterwards a Justice of the United States Supreme Court, and Samuel Johnson and W. R. Davie, each afterwards Governor of the State, represented the plaintiff. Nash's motion to dismiss brought on long arguments on constitutional points and the Court, through Ashe, made observations upon our Constitution and system of government, saying that the people had "formed that system on those fundamental principles comprised in the Constitution, dividing the powers of government into separate and distinct branches, to-wit: the legislative, the judicial and the executive, and assigning to each several and distinct powers, prescribing their several limits and boundaries." The Court at that term did not dismiss the action as directed by the act nor did it decide the motion but took an adversari, because as Judge Ashe said, he "had reason to believe the next assembly meant to revise the law and in respect to them wished to decline an opinion," (18 State Records of N. C., page 139) and it was not until the May term, 1787, that Nash's motion was acted upon-27 similar cases were pending at Newbern. In the intervening year, far reaching events took place. Iredell addressed an open letter "To the Public" on August 17, 1786, discussing the power of the Legislature and the Courts. This letter blazed the way for the establishment of this principle. His argument is unanswerable, and he is generally regarded as having been the leading exponent of the doctrine. The Court, as we will see, adopted his argument. IREDELL'S ARGUMENT. Iredell said: "I have no doubt, but that the power of the Assembly is limited and defined by the Constitution. It is a creature of the Constitution. The people have chosen to be governed, under such and such principles. They have not chosen to be governed, or promised to submit upon any other; and the Assembly have no more right to obedience on other terms than any different power on earth has a right to govern us: "These are consequences that seem so natural, and indeed so irresistible, that I do not observe they have been much contested. The great argument is, that though the Assembly have not a right to violate the Constitution, yet if they in fact do so, the only remedy is, either by a humble petition that the law be repealed, or a universal resistance of the people. But that in the meantime, their act, whatever it is, is to be obeyed as a law; for the judicial power is not to presume to question the power of an act of Assembly." After clearly showing that these two remedies are inadequate, he said: "It remains to be inquired whether the judicial power hath any authority to interfere in such a case. 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. This is not a usurped or a discretionary power, but one inevitably resulting from the Constitution of their office, they being judges for the benefit of the whole people, not mere servants of the Assembly."* Dougherty, in commenting on this letter, says: “This, it is safe to say, is the ablest and most complete exposition of the power of the judiciary over unconstitutional legislation which had appeared in the whole literature on the subject."† McLaughlin, of the University of Chicago, says that "Iredell had as much influence probably as any one, possibly more than any one, in maintaining the doctrine of judicial power."+ Coxe says this letter and Iredell's letter to Spaight, of August 26, 1787, "are legal arguments and historical papers of great ability and grave importance."§ "In many respects," says Haines, "the clearest and frankest statement of the theory of judicial supremacy, as it was developing in America, is to be found in the letters of Iredell."|| TRIAL OF THE JUDGES. At the General Assembly of 1786, which convened in November, charges were preferred against the judges, among other things, for disregarding or suspending an act of the Legislature in the Newbern cases and for declaring at Wil "McRee's Life of Iredell, p. 146. †Power of Federal Judiciary over Legislation, p. 32. American Doctrine of Judicial Supremacy, p. 54. mington Court at December term, 1785, that the Legislature could not remit fines until they were actually paid into the treasury. A reference to the trial of the judges on these charges may not be uninteresting: The charges were referred to a joint committee of the two houses and the Speaker of the House notified the judges that they could attend and be heard in reference to the charges preferred against them.* Judge Ashe, on December 14, 1786, wrote a letter to the speaker, declining to attend, but stated that the charges against him were malicious and groundless, and that in his judicial character he was "righteous and, therefore, bold." The other two judges, Spencer and Williams, attended the joint session of the two Houses. The joint committee made its report, finding, among other things, "that all of the judges at the Wilmington court at December term, 1785, did declare that the General Assembly had no power to remit or suspend the payment of fines until they should be paid into the treasury," and "that at Newbern court in May term, 1786, in several suits brought against Mr. Singleton and others, the defendants under the act for quieting in their possession the purchasers of confiscated property, produced such affidavits as the act appears to require, and prayed that their suits might be dismissed, but the judges declined to decide either for or against the defendants."† The committee referred the charges to the Assembly without giving an opinion. The committee who signed this report were A. Maclaine, W. R. Davie, William Hooper, R. D. Spaight, J. G. Blount, Jno. Stokes and Jno. Sitgreaves. Hooper was a signer of the Declaration of Independence; Davie and Spaight were members of the convention which framed the Federal Constitution and were both afterwards Governor of the State; Blount was a member of Congress for several terms and also of the convention which framed the Federal Constitution; *18 State Records of N. C., 42. †18 St. Rec., p. 215-6. |