Holmes v. Walton
Holmes v. Walton was a case decided by the Supreme Court of New Jersey in 1780, thought to be the first decision in which an American court held a statute unconstitutional. It is considered a landmark in the American law of judicial review. In an apparently unreported opinion, Justice David Brearley held that a conviction entered by a six-person jury under a 1775 statute was void, because the Constitution of New Jersey required a jury of twelve.
Background
Seizure laws
On October 8, 1778, amid the American Revolutionary War, the New Jersey Legislature passed a law that made it "lawful for any person or persons whomsoever to seize and secure provisions, goods, wares and attempted to be carried or conveyed into or brought from within the lines or encampments or any place in the possession of the subjects or troops of the King of Great Britain". The goods and the people found with them were to be taken before a justice of the peace of the county. The law, sometimes known as one of the "Seizure Laws", was intended to prevent trade with the British.The 1778 Seizure Law required the justice of the peace, on the request of either party, to empanel a jury according to a statute passed on February 11, 1775. The February 1775 law, intended for the adjudication of small claims, provided for a jury of only six men, and further stipulated, "that in every cause where a jury of six men give a verdict as aforesaid there shall be no appeal allowed".
Constitutional provisions
Juries were considered extremely important in early America. It is not surprising, then, that the first constitution of New Jersey, adopted in 1776, contained two separate provisions concerning juries and their composition.Section 22 of the Constitution of New Jersey, adopted July 2, 1776, read as follows:Section 23 of the Constitution provided as a part of the oath to be taken by each member of the legislature, that he will not assent to any law, vote, or proceeding to repeal or annul "that part of the twenty-second section respecting, the trial by jury".
Although it included these two provisions, the 1776 constitution did not include any specific language authorizing or prohibiting judicial review.
Trial
By virtue of the 1778 Seizure Law, Elisha Walton, a major in the colonial militia, seized goods from John Holmes and Solomon Ketcham. He charged Holmes and Ketcham with having brought them from within the lines of the enemy. The goods were valuable: they included between 700 and 800 yards of silk, between 400 and 500 yards of silk gauze, and several other items.The case was tried before John Anderson, a justice of the peace in Monmouth County, on May 24, 1779, before a jury of six men. The jury found for Walton and judgment was given accordingly. While the suit was pending, the defendants had already applied to the Supreme Court then in session at Burlington, and the Chief Justice, Robert Morris, issued a writ of certiorari to Anderson, returnable at the next session of the Supreme Court to be held at Hillsborough on the first Tuesday of September.
Meanwhile, Morris resigned his seat on the bench and on June 10 David Brearley was appointed Chief Justice. The court opened at Hillsborough on September 7, 1779. On September 9, the court ordered that Holmes be argued on the Thursday of the next term.
Appeal
On November 11, 1779, the case was argued before the Supreme Court sitting at Trenton. William Willcocks, attorney for the plaintiffs in error, argued that the decision below should be reversed, in part because "the jury sworn to try the above cause and on whose verdict judgment was entered, consisted of six men only, when by the Laws of the Land it should have consisted of twelve men". He made additional arguments to much the same effect.A curia advisari vult was entered at the close of argument in the case. Judgment was finally entered on September 7, 1780, ten months after the case had been argued.
Decision
The Supreme Court of New Jersey issued its decision on September 7, 1780. A full bench was present, including Chief Justice David Brearley, Isaac Smith, and John Cleves Symmes. The opinion of the court has not been discovered. Scott suggests that it was probably delivered orally and never written down.In his opinion, Brearley held that the trial of Holmes and Ketchum had not been constitutional, since it only featured a jury of six men. He did not reach the question of whether Holmes and Ketchum were innocent of trading with the enemy.
Brearley's holding can be inferred from a petition delivered in the New Jersey General Assembly on December 8, 1780, where "a petition from sixty inhabitants of the county of Monmouth was presented and read, complaining that the justices of the Supreme Court have set aside some of the laws as unconstitutional, and made void the proceedings of the magistrates, though strictly agreeable to the said laws, to the encouragement of the disaffected and great loss to the loyal citizens of the state and praying redress".
A message from Governor William Livingston to the assembly on June 7, 1782, also presumably refers to the decision in Holmes. Livingston argues:
Reaction
On the day after the argument before the Supreme Court, on November 12, 1779, Jonathan Deare, member of the Legislative Council for Middlesex, obtained leave to bring in a bill amending the "seizure acts".This bill passed the council on December 6, 1779. We do not know what the provisions of the bill were, but we do know that the General Assembly attempted to amend it with a clause confirming the requirement of the six-man jury in past and pending cases. The council refused to accept this amendment.
The act that passed on December 25, 1779, provides in its preamble and first section as follows:Shortly thereafter, the New Jersey legislature passed a law which required the justice on the demand of either party in such suits to grant a jury of twelve men, and ordered the act to be printed in the Gazette newspaper and extra copies to be printed.
In 1785, Gouverneur Morris argued before the Pennsylvania legislature against passage of a law to repeal the charter of the Bank of North America. In that speech he says:In 1804, Chief Justice Kirkpatrick of the Supreme Court of New Jersey noted Holmes in State v. Parkhurst: