State v. Parkhurst, 9 N.J.L. (4 Halst.) 427, 444 (Sup.Ct. 1802)
"As to the second objection, viz. that the court has no power to control the operation of an act of the legislature, merely upon the principle of its being contrary to the constitution. This is a question which of late years has been considerably agitated in these United States. It has enlisted many champions on both sides. It is a question equally arising out of every constitution where the legislative power is limited, and where there are certain rights or powers reserved in the hands of the people themselves, over which the legislature has no control. We may fairly avail ourselves, therefore, not only of the sentiments and decisions which have prevailed in our own state upon the subject, but also of those which have prevailed in our sister states, and in the United States.
At an early period of our government, while the minds of men were yet unbiassed by party prejudices, this question was brought forward, in the case of Holmes and Walton, arising on what was then called the seizure laws. There it had been enacted that the trial should be by a jury of six men; and it was objected that this was not a constitutional jury; and so it was held; and the act upon solemn argument was adjudged to be unconstitutional, and in that case inoperative. And upon this decision the act, or at least that part of it which relates to the six men jury, was repealed, and a constitutional jury of twelve men substituted in its place. This, then, is not only a judicial decision, but a decision recognized and acquiesced in by the legislative body of the state.
In later days, in the case of Taylor v. Reading, a certain act of the legislature, passed March, 1795, upon the petition of the defendants, declaring that in certain cases payments made in continental money should be credited as specie, was by this court held to be an ex post facto law, and as such unconstitutional, and in that case inoperative. And with this decision before them, (for the act was made pending the suit,) and as I humbly conceive, fully acquiescing therein as to matter of principle, the legislature afterwards, in January, 1797, passed another act for the relief of the said defendant, Reading, in another way. These two cases in New Jersey, determined upon full consideration, the former in the time of CHIEF JUSTICE BREARLEY and the latter in the time of CHIEF JUSTICE KINSEY, both afterwards brought into the notice, and acquiesced in, and, if I may so say, sanctioned by the legislature, would be sufficient to rule the question."
Bonaparte v. Camden & A. R. Co., 3 F. Cas. 821, 823 (c.C.D.N.J. 1830) (No. 1,617)
". . . . No law of this state can take away a constitutional right. Such law is void by the constitution of the state,-9 N. J. Law, 443; S. P., 2 Dall. 304 ,-as a law directing a jury of only six to decide on cases where the sum in controversy did not exceed 25 dollars, which was adjudged void,-Holmes v. Walton, cited 9 N. J. Law, 444, . . ."
Atkinson v. Woodmansee, 68 Kan. 71. 74 P. 640, 645 (1903)
"From the time of the separation of the colonies from the mother country to the time of the Federal Convention, the power under discussion had been brought to public notice in seven cases arising in five states. In the case of Holmes v. Walton the question of constitutionality was squarely raised before the Supreme Court of New Jersey, November 11, 1779, and squarely decided September 7, 1780. The decision, though meeting with some opposition, was ratified by a Legislature fresh from the people. Brearly, the Chief Justice who rendered the decision, Patterson, the Attorney General, and Livingston, the Governor of the state, all sat in the Federal Convention. 4 American Historical Review, 456."
Booth v. McGuinness, 78 N.J.L. 346, 75 A. 455
(Ct. Err. & App. 1910)
"Immediate assent, however, was not accorded to the new power that was for the first time asserted-not, as is sometimes stated, in 1786 by the Supreme Court of Rhode Island in the case of Trevett v. Weeden, nor by the Virginia Court in Commonwealth v. Caton, 4 Call, 5, in 1782, but by the Supreme Court of New Jersey in 1780 in the case of Holmes v. Walton, an unreported case, cited by Judge Kirkpatrick in State v. Parkhurst in 9 N. J. Law, 427-444, and said by Mr. Dillon (Dillon's Jurisprudence, p. 200) and by Prof. Thayer (1 Cases on Const. Law, p. 62, note) to be the first decided case holding it to be the constitutional duty of the court to declare void an unconstitutional statute; the exact date of the New Jersey decision having been determined by Dr. Scott of Rutgers College (2 Am. Hist. Assoc. Papers, 1886). "
Southern Ry. Co. v. Cherokee County, 177 N.C. 86, 97 S.E. 758, 762-763
(1919) (Walter, J., concurring)
"The Legislature is not, therefore, a sovereign body with plenary powers; but within the proper and prescribed limit, as set by the Constitution, it is entitled to have, and so far as this court is concerned will have perfect freedom of action. . . . . . It is strangely claimed by some that it has unlimited right to decide for itself, and finally, whether it has a given power; and, if this be so, it would manifestly result that the Constitution, instead of being a charter of fundamental principles and policy, would have no more binding force and effect than a statute, as it could be repealed or set at naught according as the Legislature might will, meaning one thing to-day and another thing at some day in the future, or nothing at all, as partisan whim or caprice might determine. Such a doctrine is wholly inadmissible, and is entirely at variance with every proper conception and notion of constitutional government. It has been so held by nearly all, if not all, of the American Courts. As early as 1780 the Supreme Court of New Jersey in Holmes v. Walton, Amer. His. Rev. vol. 4, p. 456, laid down this doctrine; and that case was followed in New York by Rutgers v. Waddington, Fiske, Cr. Period Amer. His. p. 127, decided in 1784, and in this state by Bayard v. Singleton, 1 N. C. 5, cited in the opinion of the court."
Ex parte Hague, 103 N.J. Eq. 31,52, 144 A. 546 (Ch. 1929)
"New Jersey was the first state to establish the principle that the judiciary would inquire into the constitutionality of an act, and, being empowered so to do, the court should, of course, inquire into all constitutional matters incident to the passage of such act and relating to the subject-matter thereof. The case alluded to is referred to in Taylor's Due Process of Law, § 218, at page 446, wherein the author says that, at some uncertain date, prior to 1785, Chief Justice Brearley held, in Holmes v. Walton, cited in State v. Parkhurst, 9 N. J. Law, 444, Appendix, that a statute then in question was unconstitutional, and therefore void."
Glenn v. Board of Education of Mitchell County, 210 N.C. 525, 187 S.E. 781, 784
" It is well settled in this state that the courts have the power, and it is their duty, in proper cases to declare an act of the General Assembly unconstitutional; but it must be plainly and clearly the case. It has been frequently said that this state was the first in the United States to declare an act of the General Assembly unconstitutional (Bayard v. Singleton, 1 N.C. 5), but other states claim this distinction also. . . . . . In Two Centuries' Growth of American Law, 1701-1901 (Yale Law School), we find the following, at page 24: 'In the case of Holmes v. Walton (N.J.), an act was adjudged to be void, because contrary to the Constitution. The date of this judgment, although formerly put later, it seems now to be established was 1780. * * * ' "
Jones v. Freeman, 193 Okla. 554, 146 P.2d 564,580 (1943)
"It has never been doubted in this country since Marbury v. Madison, 1 Cranch 137, 2 L.Ed. 60, that an act of the Legislative Department of government contrary to the Constitution is void and subject to that declaration by the courts. Indeed, it was never doubted prior to Marbury v. Madison that an act of the Legislative Department of government contrary to the Constitution was void. That matter had previously been set at rest in Holmes v. Walton, 1779, 9 N.J.L. 444; . . . . "
Wilentz v. Hendrickson, 135 N.J. Eq. 244, 38 A.2d 199, 203-204 (Ct. Err. & App. 1944)
" New Jersey was among the very first of the States of the Union to recognize the right of our Courts, with proper regard and respect for the action of the co-ordinate branches of our government, to strike down legislation that contravenes the constitution, the fundamental law of our State. That right was first exercised in 1780 by our Supreme Court in the case of Holmes v. Walton, 4 Historical Review 456; Wambaugh Cases on Constitutional Law, Book 1, p. 21."
United States v. Jepson, 90 F.Supp. 983, 985-986 (D.N.J. 1950) (Opinion by Chief Judge Fake)
"The study here should not be closed without reference to the early case of Holmes ads. Walton, cited in 9 N.J.L. 444, which was tried in New Jersey before a Justice of the Peace in the year 1778, and appealed from the Justice's court to the Supreme Court of the State where it was decided in the year 1780. The then Constitution of the State, which had been adopted in the year 1776, contained the following provisions: 'That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter; and that the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal, forever.' Section 22.
In the year 1778 a State statute, Pamphlet, Laws of New Jersey 1778, page 104, was enacted to prevent intercourse with the then British enemy. The act made it 'lawful * * * for any person or persons whomsoever to seize and secure * * * Provisions, goods, wares of merchandise, 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.' It further provided that the persons in whose possession such property might be found were to be taken before a Justice of the Peace. The law required the Justice, on demand of either party, to grant a jury trial according to the law of 1775 which provided for a jury of 6 men and further stipulated that in every cause where a jury of 6 men gave a verdict as aforesaid there should be no appeal allowed. The law of 1778 provided that if plaintiff should win the suit the goods were to be sold and the proceeds of the sale of the goods were to be divided among the persons seizing them.
While the foregoing law was in effect one Elisha Walton seized a quantity of goods in the possession of Holmes and Ketcham, whom he charged with having brought them from within the lines of the enemy. The goods were of considerable value, to wit, 29,428 pounds 13 shillings and 4 pence halfpenny. The cause was tried before a Justice of the Peace of Monmouth County on May 24, 1779 with a jury of 6 men who brought in a verdict in favor of Walton.
Holmes and Ketcham appealed to the Supreme Court and the court issued a writ of certiorari to the Justice of the Peace. The Supreme Court consisted of Chief Justice David Brearley, with Isaac Smith and John Cleves Symes, associates. It is thought by historians and scholars that the opinion of the court was an oral opinion. A minute of it appears in the court record as follows: 'This cause having been argued several terms past and the court having taken time to consider of the same * * * gave the seriatim for the plaintiffs in certiorari * * * and on motion of Boudinot, for plaintiff; judgment is ordered for the plaintiffs and that the judgment of the Justice in the court below be reversed and the said plaintiffs be restored to all thinks, * * * .'
The late Dr. Austin Scott, some time President of Rutgers College; is the author of a priceless essay on the subject of that case. It there appears in the language of Dr. Scott that 'persistent search failed to discover the opinion of Chief Justice Brearley. * * * It was probably an oral opinion and never written. Happily, however, there exists incontestable proof of its import. On the afternoon of the 8th of December, 1780, in the House of Assembly, 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 * * * to the encouragement of the disaffected and great loss to the loyal citizens of the State * * * '
It appears that the decision of the Supreme Court was based upon the contention that the legislation above mentioned was unconstitutional in that the jury thereunder 'consisted of 6 men only contrary to law.' Chief Justice Brearley held the legislative enactment unconstitutional because the Constitution provided that such trials should be by jury and at that time the word 'jury' clearly connoted 12 men and not 6 men.
An analysis of the cause of action involved discloses that it was an action in debt as at common law, and so meticulously careful was Chief Justice Brearley in his allegiance to the Constitution that he fearlessly set the legislation at naught. The war of the Revolution was still raging in this State, and the result of that opinion was to return the goods to disloyal and subversive persons. Moreover, prior to become Chief Justice, Brearley had served as a Colonel in the Continental Army. One has but to read the history of that period in this State to realize the antagonism with which his very logical opinion was met. This was the first case known to our jurisprudence when an act of the legislature was declared unconstitutional by a court. I know of no case in the annals of jurisprudence which required greater judicial courage than that displayed by Chief Justice Brearley and his associates in that case.
In the year 1789 Chief Justice Brearley was elevated by President Washington to become the first Judge of the United States District Court, in which I, and my four colleagues, now sit. The case of Holmes ads. Walton is lost to all save professional historians and a few lawyers. It is of such importance to the federal bench and bar that I take the liberty to annex a copy of Dr. Scott's essay as an appendix to this opinion. The case is pertinent here because of its bearing upon the common-law action of debt, and also because of the importance of jury trials now as in the past."
Colgrove v. Battin, 413 U.S. 149, 177 n.7 (1973) (Douglas, J., dissenting)
" I do not mean to suggest that isolated experiments with juries of different sizes cannot be found in colonial history. Indeed, when one considers the number of jurisdictions and the span of time involved, it would be surprising if there were no aberrations. Some scholars have argued from the few cases involving juries consisting of more or less than 12 that there was no common-law requirement as to jury size in the Colonies. See, e.g., Fisher, The Seventh Amendment and the Common Law: No Magic in Numbers, 56 F.R.D. 507 (1973). In fact, however, the cases cited for this proposition seem to constitute no more than the exceptions which prove the rule. . . . . Fisher's final example is particularly revealing. Just prior to the Revolution, New Jersey passed an act providing for six-man juries in small-court cases. Id., at 531. The law was challenged in the case of Holmes v. Walton, in 1780, in which the defendant argued '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.' Id., at 532 n. 88. The New Jersey Supreme Court rejected this argument and upheld the verdict. A scant month later, however, the New Jersey Legislature reversed this decision and reinstituted the right to 12-man juries."
Ex parte James, 713 So.2d 869, 879 (Ala. 1997)
"This objection to the exercise of judicial review of the constitutionality of Alabama's public school system is tenuous at best. Long before Alabama acquired statehood, judicial decisions had recognized the power-as well as the duty-of the judiciary to review, and, if necessary, nullify, acts of the legislature it deemed to be inconsistent with the fundamental law of the land. See . . . . Holmes v. Walton, (N.J.1780) (nullifying a legislative act reducing from 12 to 6 the number of jurors required in cases involving seizures of property allegedly being traded with English troops) . . . . "