leave intact all those portions of the law which were not plainly void.
4. The decision does not recognize 'necessity' or extra-constitutional legislative war-powers or the special plea of patriotic motives in construing the organic law.
5. It is a happy circumstance that the decision guards one of the oldest and most important of constitutional rights, that of trial by a real jury.
6. The decision, though meeting with some opposition, was ratified by a legislature fresh from the people.
7. It had its influence outside of New Jersey, being cited in the appeal by Gouverneur Morris to the Pennsylvania legislature five years after it was rendered. This appeal was published in Philadelphia, then the central city of the Union, where Congress had had its sessions and where the Federal Convention two years later was to assemble.
8. It must have had a value in preparing for the special duty of formally proposing the principle, Brearly, the Chief Justice, who rendered the decision. Paterson, the Attorney-General, and Livingston, the Governor, the three Jerseymen who in the Federal Convention gave form and name and support to the 'Jersey plan.'
9. to the 'New Jersey plan' is due the formal proposal and therefore, in large part, in due time and by due process, the final acceptance of this principle of judicial control in our legal system.
/1/ By Austin Scott, 4 American Historical Review, 456.
/1A/ The following pages include portions of a paper prepared about sixteen years ago and read successively before a private literary club, 'The Fornightly,' of Newark, N.J., in 1883, before the Rutgers College chapter of the Phi Beta Kappa in 1884, and before the American Historical Association, April 28th, 1886. The paper was never printed in full though an abstract of it appears in the Papers of the Historical Association, Vol. II, No. I, page 45.
The original paper was a study of the growth of the power of the judiciary to pronounce upon the constitutionality of laws, but the propriety of publishing any other part of it than the one here presented has been entirely obviated by the careful treatment of the subject in late years by several authors, and especially in the exhaustive work of the late Brinton Coxe of Philadelphia, Judicial Power and Unconstitutional Legislation.
In that work, however, on page 222, the author, accepting the conjecture of Mr. William M. Meigs, is inclined to assign the New Jersey case of Holmes v. Walton to a date no earlier than 1786, whereas the constitutional question was raised before the court as early as November, 1779, and decided on the 7th of September, 1780, the case thus taking precedence in time of the other cases of like sort in which the principle was clearly acted upon.
Furthermore, Mr. Meigs, and Mr. Coxe following him, being without materials for an adequate knowledge of the case, pass it over with slight consideration of its possible influence in serving to widen the scope of judicial power in our federal system. This meagre treatment in a work speaking with all but final authority on its subject matter, as well as numerous letters on inquiry concerning the case, which the present writer has received, lead him to give its history, in the hope that the following pages will call general attention to this early action of New Jersey and secure recognition of its value in determining forces which in the Constitution of the United States 'establish justice.'
/2/ Pamphlet Laws 1778. See also Wilson's Laws of New Jersey, Appendix V.
/3/ Papers on file in the office of the Supreme Court of New Jersey, Envelope 44928. In the later proceedings in the case, in April 1781, the amount of the claim of Walton on behalf of himself and the state was, in an order of the court, stated to be 'twenty-nine thousand, four hundred and twenty-eight pounds, thirteen shillings and fourpence half penny' (original files Supreme Court). If we reckon the pound 'proclamation money' at about $ 2.43, the claim must have exceeded $ 70,000 probably in the depreciated currency of the day.
/4/ Minutes of Supreme Court, original in clerk's office in Trenton.
/5/ Minutes of Supreme Court, original in clerk's office in Trenton.
/6/ Files Supreme Court, Envelope 18354.
/7/ Minutes Supreme Court.
/8/ Leaming and Spicer, Grants and Concessions, pp. 372, 398.
/9/ Leaming and Spicer, Grants and Concessions, pp. 235, 428.
/10/ For sketches of these judges, see Elmer's Reminiscences, pp. 271 ff.
/11/ Minutes of Supreme Court, p. 343.
/12/ Votes and Proceedings of House of Assembly, p. 52; cf. Votes and Proceedings for 1780, pp. 36, 39, 54 et passim.
/13/ Supreme Court Files, Envelope 44928.
/14/ Votes and Proceedings, House of Assembly, June 7th, 1782.
/15/ Votes and Proceedings, p. 36.
/16/ Minutes of Assembly, pp. 47, 62, 86, 87, 92, 93, 96, 98, 101. Journal of Council, passim.
/17/ Original Laws of New Jersey, p. 49. Wilson's Laws, Appendix.
/18/ That this distinction in such use of these terms then obtained seems clear from the preamble and from the fact that 'required' is used in the law of 1778 and in the law passed after the decision of the courts in 1780.
/19/ For the letter of the justices of the Supreme Court to the speaker, see Votes and Proceedings, General Assembly, Saturday, May 13th, 1780. For the Act of June 17th, 1780, see Session Laws, p. 121, Chapter LIII.
/20/ Act of December 22d, 1780. For the series of acts on this subject, see the Appendix of Wilson's laws of New Jersey.
/21/ 4 Halsted 444, 9 N.J.Law 444.
/22/ Spark's Life of Gouverneur Morris, III. 438.
/23/ As evincing a general recognition of this principle in colonial days (1759), see Colden's Letter on Smith's History of New York, New York Historical Society Collections for 1869, page 204.
/24/ Elliot, V. 322. An interesting phase of the gradual acceptance of the principle in the Convention appears in the attempt of Randolph, the sponsor for the Virginia Plan, to mediate, on July 10th, between the large and small states. On that day he proposed for the states a power of appeal to the national judiciary against alleged unconstitutional use of the national legislative veto of state laws, and for individuals an appeal against the operation of a state law to the same tribunal, which 'may adjudge such law to be void if found contrary to the principles of equity and justice' Elliot, V. 580.
/25/ 'Mr. Paterson observed to the Convention that it was the wish of several deputations, particularly that of New Jersey, to digest a plan purely federal.' Elliot's Debates, V. 191.
/26/ The other deputies from New Jersey, William Churchill Houston and Jonathan Dayton, did not share at this time in the labors of the Convention. The former had gone home suffering from an illness which proved to be mortal, and the latter had not yet arrived.
/27/ The decisions in the case of Trevett v. Weeden, in Rhode Island, 1786, and of Bayard v. Singleton, in North Carolina, 1787, both involving more or less the constitutional right of a trial by jury, may have found some support in the New Jersey case of Holmes v. Walton, of 1780. A desire to compliment the authors of those decisions by imputing to them the possession of information sufficient to include a knowledge of this case in a sister state would perhaps warrant such an assumption. Lack of historical proof alone prevents the present writer from showing this courtesy to their memory.
It may be proper, however, to add, by way of further conjecture, that Gen. James M. Varnum, who was the learned counsel in the case of Trevett v. Weeden, and who afterwards published a pamphlet giving the history of the case, was a member of the Congress of 1780 and attended the sessions then held in Philadelphia. The case of Holmes v. Walton, which had just been decided, and which was stirring the interest of the people of New Jersey, could scarcely have failed to attract the attention of Varnum. Furthermore, a colleague of Varnum in the Congress of 1780 was William Churchill Houston, a delegate from New Jersey and in 1781 the clerk of its Supreme Court; but, so far as the present writer is concerned, anything beyond this circumstance is pure conjecture.
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