James Iredell to Richard Dobbs Spaight

IREDELL TO SPAIGHT.

August 26th, 1787.

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. The experience of the evils which the American war fully disclosed, attending an absolute power in a legislature body, suggested the propriety of a real, original contract between the people and their future Government, such, perhaps, as there has been no instance of in the world but in America. Had not this been the case, bills of attainder, and other acts of party violence, might have ruined many worthy individuals here, as they have frequently done in England, where such things are much oftener the acts of a party than the result of a fair judicial enquiry. 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 own 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 restriction might be attended with inconvenience; but they chose to risk the inconvenience, for the sake of the advantage; and in every transaction we must act in the same manner: we must choose between evils of some sort or other : the imperfection of man can never keep entirely clear of all, 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. If it is doubted whether a subsequent law repeals a former one, in a case judicially in question, the judges must decide this ; and yet it might be said, if the Legislature meant it a repeal, and the judges determined it otherwise, they exercised a negative on the Legislature in resolving to keep a law in force which the Assembly had annihilated. This kind of objection, if applicable at all, will reach all judicial power whatever, since upon every abuse of it (and there is no power but what is liable to abuse) a similar inference may be drawn ; but when once you establish the necessary existence of any power, the argument as to abuse ceases to destroy its validity, though in a doubtful matter it may be of great weight. Suppose, therefore, the Assembly should pass an act, declaring that in future in all criminal trials the trial by jury should be abolished, and the court alone should determine. The Attorney-General indicts; the indictment is found ; the criminal is arraigned, and the Attorney-General requires his trial to come on. The criminal objects, alleging that by the Constitution all the citizens in such cases are entitled to a trial by jury; and that the Assembly have no right to alter any part of the Constitution ; and that therefore the act appointing the trial by the court is void. Must not the court determine some way or other, whether the man shall be tried or not? Must not they say whether they will obey the Constitution or an act inconsistent with it? So-suppose a still stronger case, that the Assembly should repeal the law naming the day of election, (for that is not named in the Constitution,) and adjourn to a day beyond it, and pass acts, and these acts be attempted to be enforced in the courts. Must not the court decide whether they will obey such acts or no ? And would it be approved of (except by a majority of the de facto Assembly) if they should say, "We cannot presume to declare that the Assembly, who were chosen for one year, have exceeded their authority by acting after the year expired.” It really appears to me, the exercise of the power is unavoidable, the Constitution not being a mere imaginary thing, about which ten thousand different opinions may be formed, but a written document to which all may have recourse, and to which, therefore, the judges cannot wilfully blind themselves. This seems also to have been the idea of some of the early Assemblies under the Constitution, since, in the oath of allegiance are these expressions: “I, A. B. do sincerely promise and swear, that I will be faithful and bear true allegiance to the State of North Carolina, and to the powers and authorities which are or may be established for the government thereof, not inconsistent with the Constitution. (Act of Nov. 1777.) In any other light than as I have stated it, the greater part of the provisions of the Constitution would appear to me to be ridiculous, since in my opinion nothing could be more so than for the representatives of a people solemnly assembled to form a Constitution, to set down a number of political dogmas, which might or might not be regarded; whereas it must have been intended, as I conceive, that it should be a system of authority, not depending on the casual whim or accidental ideas of a majority either in or out of doors for the time being; but to remain in force until by a similar appointment of deputies specially appointed for the same important purpose; and alterations should be with equal solemnity and deliberation made.

And this, I apprehend, must be the necessary consequence, since surely equal authority is required to repeal as to enact. That such a power in the Judge may be abused is very certain ; that it will be, is not very probable. In the first place, in a democratical government like ours, it is the interest of every man ambitious of public distinction to make himself pleasing to the people. This is so much the case, that there is great danger of men sacrificing their honor to their popularity, if their principles and firmness of mind are not of a texture to keep them steady in an honorable course. It can be no man's interest certainly to make himself odious to the people by giving unnecessary and wanton offence. It is also to be considered, that though the Judges are permanent in station (at least as long as the Act of their appointment is in force*), yet, as their salaries are during pleasure, they are in fact dependent on the Assembly, few men likely to be Judges being rich enough to consider them as a trifle. Besides, if they are disposed by a gross abuse of power (for the mere pleasure of abusing it) to put their negatives on our laws by giving them a false construction, cannot they do this every day with other Acts of Assembly (few of which I believe are more exempt from cavil than any article of the Constitution)? So that it really seems to me, the danger is the most chimerical that can be supposed of this power being abused; and if you had seen as I did, with what infinite reluctance the judges came to this decision, what pains they took by proposing expedients to obviate its necessity, 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 cannot 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 unconstitutional 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 eral question, independent of an application to any case what ever. 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 careful enough to correct the errors of others, though seldom sufficiently watchful of their own, especially if they have no check upon them.

JAS. IREDELL.