the Treaty. No act of the Legislature was declared invalid, but on the contrary the Court said:

"The supremacy of the Legislature need not be called in question; if they think fit positively to enact a law, there is no power which can control them."

In May, 1786, the General Assembly of Rhode Island passed a law sanctioning emission of paper money, and in June passed an act imposing a penalty on any person who should refuse to receive the money at its face value in exchange for goods sold; and at a special session held in August passed an act providing that the Court should proceed to trial without any jury and with no right of appeal from the sentence imposed. The act was considered in the case of Trevett vs. Weeden, which was decided by the Superior Court of Judicature of Rhode Island on September 25, 1786, and the judgment of the Court was that the information "was not cognizable before them," but the Court did not pronounce any statute unconstitutional, though it was generally understood the Court in effect held the statute unconstitutional and void. Rhode Island, however, was not under a regularly enacted written constitution; but the Colonial Charter was regarded as in force as a part of the unwritten law of the State. The Colonial Legislature had the power to make laws, provided they were not repugnant to the laws of England. The Colonial Legislature, which had been continued with the old limitations, could not have abolished trial by jury and, therefore, the State Legislature could not abolish it.*

These are the cases which antedate Bayard vs. Singleton. It is thus seen that the North Carolina case is entitled to the distinction of being the first reported case where the Court nullified an act of the Legislature because repugnant to a written Constitution.

The decision at first raised a storm of protest, but being based on a sound principle, prevailed. Richard Dobbs Spaight, who had been Chairman of the joint committee *Coxe, 238.

of the two Houses of the General Assembly, in 1786, which found the judges not guilty of the charges preferred against them, was a member from North Carolina of the Federal Constitutional Convention which assembled in Philadelphia, in May, 1787, the very month the Court rendered its decision in Bayard vs. Singleton.

Spaight, on August 12th, 1787, from the Convention at Philadelphia, wrote to Iredell and referred "to the late determination of our judges at Newbern," referring to the decision of Bayard and Singleton, and said "it is their usurpation of authority to do it that I complain of, as I do most positively deny that they have any such power, nor can they find anything in the Constitution, either directly or impliedly, that will support them or give them any color of right to exercise that authority," and he asserted that no judiciary ought ever to possess any absolute negative on the proceedings of the Legislature.

"It must be acknowledged," he writes, "that our Constitution unfortunately has not provided a sufficient check to prevent the intemperate and unjust proceedings of our Legislature, though such a check would be very beneficial and I think absolutely necessary to our well being," and he wished to know what was the general opinion.

Iredell answered on August 26, 1787, and said:

"In regard to the late decision at Newbern, I confess it has ever been my opinion that an act inconsistent with the Constitution was void and that the judges consistently with their duties could not carry it into effect. The Constitution appears to me to be a fundamental law, limiting 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.

"In a republican Government, as I conceive, individual

liberty is a matter of the utmost moment, as if there be no check upon the public passions, it is in the greatest danger. The majority having the rule in their hands may take care of themselves, but in what condition are the minority, if the power of the other is without limit?

"These considerations, I suppose, or similar ones, occasioned such express provisions for the personal liberty of each citizen, which the citizens, when they formed the Constitution, chose to reserve as an unalienated right, and not to leave at the mercy of any Assembly whatever.

"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 ground-work of that as well as of all other authority; and as no article of the Constitution can be repealed by a Legislature, which derived 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 arbitrators, 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.

"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 an occasional majority of his fellowcitizens, who, if their own rights are in fact unmolested, may care very little for his."*

Iredell's letter to Spaight no doubt convinced him of the unsoundness of his views, for he made no protest in the Phila

*McRee, p. 173.

delphia convention against the Supreme Law and Judiciary clauses which, in express terms, made it the duty of the State courts to declare anything in the Constitution or the laws of any State invalid if in conflict with the Federal Constitution. He was a member of the first ratifying convention in North Carolina in which Steele, Davie, Johnson and others, in unmistakable terms, declared that the courts had the power under the Federal Constitution to nullify acts of Congress or of the State Legislatures, and he voted to ratify in the first convention, and when the Federal Constitution was ratified by the second convention, he wrote to Iredell that he was "happy to hear that wisdom has presided in our councils and enabled the convention to break through that cloud of ignorance and villainy which has so long obscured our political horizon."

DOCTRINE FIRMLY ESTABLISHED.

As the earliest enunciation was by the North Carolina court, so probably the latest and fullest recognition of this principle by the Legislative and Executive Departments was during the Legislature of 1915, when the act authorizing the Governor to appoint women notaries public was under consideration, and it was contended that the act was unconstitutional in that a notary public was an officer, and under the Constitution only males could hold office. The General Assembly, to quote from the opinion of our Supreme Court, "hesitated and refused to take final action until assured by the head of the Executive Department that only one appointment would be made until the constitutionality of the act was passed upon by the Courts."*

Continuously for 128 years the North Carolina courts have exercised this power, and though we have had four constitutional conventions since it was first exercised, besides a number of amendments to the Constitution have been submitted to the people, no attempt has ever been made to take from the courts this so-called "usurped" power.

Bickett vs. Knight.

It is asserted, however, by those who criticise the courts for the exercise of this power, that it does not exist in England, and was unheard of in any other country; that no courts elsewhere had ever undertaken to nullify the acts of the legislature. These assertions made it necessary to examine the conditions which existed prior to and at the time of the decision in Bayard vs. Singleton to ascertain the state of mind of the men of that time.

REVOLUTIONARY VIEWPOINT.

It is true that at the time of the American Revolution, the principle was firmly established in England that Parliament was omnipotent and that the courts had no power to nullify an act of Parliament. It was this very omnipotence of Parliament that had been so onerous to the Colonists, and was, in reality, the underlying cause of the American Revolution. The Declaration of Independence embodied in a permanent form a denial of such parliamentary authority, treating it as a gross and unconstitutional usurpation.*

As Mr. Justice Allen says in the Notary Public Case: "The Revolution of 1776 was largely a protest against the exercise of arbitrary power, and one of the principal reasons for adopting a written constitution was that limitations should be placed on the exercise of power."

An examination of the proprietary and colonial history of North Carolina reveals the fact that the doctrine announced in Bayard vs. Singleton was gradually but firmly taking root and that the Court gave concrete expression to a principle that was the logical result of revolutionary experiences and conditions, which crystalized into a government with a written constitution defining and limiting the powers of each department of government.

"For nearly three-quarters of the first century of our settlement, our government was in the hands of the Lords Proprietors. Under their rule the people recognizing no authority

*Story on Constitution, par. 170.