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JAME.5 IREDELL 
 
 1751-1799 
 
 Lawyer, Statesman, Jud^e 
 
 BY 
 
 H. G. CONNOR 
 
 Jud^e United States Court, Eastern District 
 of North Carolina 
 
 Reprinted From the 
 
 North Carolina Booklet 
 
 April, 1912 
 
 Raleigh 
 
 Edwards s Broughton Printing Co. 
 
 1912 
 

 Author 
 
JAMES IREDELL 
 
 1751=1799^ 
 
 By H. G. CONNOR, 
 
 Judge United States Court, Eastern District North Carolina. 
 
 "The character of this excellent man has been too little known. 
 Similar has been the fate of many other valuable characters in 
 America. They are too little known to those around them; their 
 modest merits have been too familiar, perhaps too uniform, to 
 attract particular and distinguished attention." 
 
 James Iredell was born in Lewes, Sussex County, Eng- 
 land, October 5, 1751. His father, Francis Iredell, a 
 merchant of Bristol, married Margaret McCulloch. The 
 family were allied by blood to Sir George Macartney, the 
 Earl of Wigton, the Fergusons, McCullochs, and, by mar- 
 riage, to Governor Lyttleton. Henry McCulloch was con- 
 nected with the Government of the Province of !North Caro- 
 lina, where he owned large landed estates. Through the in- 
 fluence of relatives, James Iredell was appointed Comptroller 
 of the Customs at Port Roanoke (Edenton) IST. C. It was 
 said at the time, "The ofiice is genteel requiring little or no 
 duty, so that he will have time to apply himself to business ; 
 it is worth upwards of one hundred pounds sterling a year." 
 Iredell appropriated a large portion of his salary to the sup- 
 port of his father and mother, thus ''illustrating in a forcible 
 manner his filial piety and generous nature." He sailed for 
 his new home, bringing with him his commission, and letters 
 of introduction from friends in England, to several gentle- 
 
 'The writer has, for his information relied largely upon McRee's "Life and Corres- 
 pondence of James Iredell." Except as otherwise indicated herein, quotations given are 
 taken from it. 
 
4 James Iredell. 
 
 men in Edenton, arriving at the latter place "near the close 
 of the year 1768." His biographer says of him: "He was 
 then just seventeen years old, at the age when pleasures are 
 enjoyed with the keenest relish. Frank, ingenuous, of pleas- 
 ing appearance, winning manners, and educated in the best 
 schools of England, he was kindly received and warmly wel- 
 comed." 
 
 The ancient borough of Edenton is situated on the north- 
 em shore of Albemarle Sound. It was founded in 1716, and 
 named in honor of Eden, the Eoyal Governor. Mr. McEee 
 says of the people to whom the young Comptroller came and 
 among whom he resided during the remainder of his life: 
 "If there was little of the parade and pomp of older com- 
 munities, if many of the appliances of luxury were wanting, 
 ease and abundance were the reward of but a slight degi'ee 
 of frugality and industry; the homes of the planters were 
 comfortable and ample for all the purposes of hospitality; 
 while their tables gi'oaned beneath dainties beyond the reach 
 of wealth on the other side of the Atlantic. * * * He 
 who supposes the inhabitants were untutored people is grossly 
 deceived. They were not refugees from the justice of the 
 old world; nor were they of desperate fortunes or undisci- 
 plined minds — they were equal in cultivation, ability and pa- 
 triotism to any of their contemporaries. The men were bold, 
 frank, generous and intelligent ; the females tender, kind and 
 polite." The town contained about five hundred inhabitants. 
 Of the residents of the town were Samuel Johnston, among 
 the earliest, most enthusiastic and active Whigs, President of 
 the Provincial Congress, Governor, and, upon the adoption 
 of the Federal Constitution, the first United States Senator 
 elected from the State, a lawyer of learning, a man of deep 
 and extensive reading and singular purity of life spent in 
 patriotic service to the State; Joseph Hewes, signer of the 
 Declaration; Thomas Barker, Thomas Jones, Jasper Charl- 
 
James Iredell. 5 
 
 ton, Stephen Cabarrus, Robert Smith, Charles Johns|on, 
 John Johnston, and Sir Nathaniel Duckenfield. In the ad- 
 joining counties were Colonel Richard Buncombe, who, being 
 mortally wounded at Germantown died in Philadelphia; 
 John Harvey, Speaker of the Assembly, and later Moderator 
 of the First and Second Provincial Congresses called in the 
 Province (August, 1774, and April, 1775) ; and others of 
 less note, but of liberal education and of honorable service 
 and position. The society of the town furnished to Iredell a 
 social circle of cultured and refined hospitality into which he 
 at once entered. It is with Iredell's preparation for, and 
 work as, a lawyer, statesman and judge that we are specially 
 concerned, which precludes an entrance into the interesting 
 and charming story of his personal and social life further 
 than it illustrates his public career. 
 
 Very soon after his arrival he began the study of law 
 with Samuel Johnston. "Every moment of leisure was de- 
 voted to his legal studies and to such intercourse with in- 
 telligent gentlemen and cultivated ladies as was calculated 
 to refine and improve. He was a diligent student ; he copied 
 Mr. Johnston's arguments and pleas in important cases. He 
 read carefully and attentively the text-books, referring to the 
 authorities quoted, and collecting and digesting kindred pas- 
 sages from all writers within his reach; he attended the 
 courts, returned to his chamber and wrote out arguments of 
 his own, applicable to the cases he had stated." A few ex- 
 tracts from his "Journal" give us a fair view of the young 
 Comptroller, preparing himself for the career which, all un- 
 thought of, awaited him. On August 22, 1770, he writes: 
 "Indolence in any is shameful, but in a young man quite in- 
 excusable. Let me consider for a moment whether it will be 
 worth my while to attempt making a figure in life, or whether 
 I will be content with mediocrity of fame and circumstances. 
 * * * But nothing is to be acquired without industry; 
 
6 James Iredell. 
 
 vj and indolence is an effectual bar to improvement. * * ^ 
 I have not done as mucli as I ought to have done; read a 
 little in Lyttleton's Tenures and stopped in the middle of 
 his Chapter on Eents ; vrhereas I ought to have gone through 
 
 ^ it. It would have been better than losing three or four games 
 at billiards, N. B. — If you do play billiards make it a rule 
 not to lengthen." 
 
 We learn from his journal that, while studying Lyttleton, 
 he did not neglect polite literature. He says : "I have been 
 reading a volume of the Spectator, which is ever new, ever 
 instructive, ever interesting. I hope they will be trans- 
 mitted, with honor, to the latest ages. * * * Strength 
 of reason, elegance of style, delicacy of sentiment, fertility 
 of imagination, poignancy of wit, politeness of manners, and 
 the most amiable pattern of human life, appears through the 
 whole, in so conspicuous a manner as at once to improve and 
 delight. * ■«■ * Eesumed my Spectator; read a great 
 many entertaining and improving things, particularly Mr. 
 Addison's Discourses on Fame, in the fourth volume, which 
 are incomparably elegant and sublime. Surely the writings 
 of such great, learned and good men are more than a counter- 
 poise to the libertine writings of professed Deists, whose im- 
 moral lives made them dread an encounter hereafter." He 
 continues this train of reflection regarding the infidelity so 
 prevalent at that time, concluding with words, which are of 
 special interest, giving expression to a principle which con- 
 trolled his private and public conduct throughout his life : 
 "At a time when licentiousness is at an amazing and danger- 
 ous height we shall be careful to guard against popular preju- 
 dice, though we must not blindly oppose the public voice 
 because it may appear too tumultuous. Let us do things im- 
 partially and not oppose or condemn any conduct on the 
 whole, on account of a few improper circumstances attend- 
 ing it." 
 
James Iredell. 7 
 
 His journal shows that he was a diligent student of the 
 "Tenures." On July 31, 1771, he writes his father, "I am 
 too often troubling you, but I will hope for your excuse of 
 this last request, as it will be of particular, perhaps neces- 
 sary, service for me. It is that you will be so obliging as to 
 procure Dr. Blackstone's Commentaries on the Laws of Eng- 
 land and send them by the first opportunity. I have, indeed, 
 read them by the favor of Mr. Johnston, who lent them to 
 me, but it is proper that I should read them frequently and 
 with great attention. They are books admirably suited for 
 a young student, and, indeed, may interest the most learned. 
 The law there is not merely considered as a profession but a 
 science. The principles are deduced from their source and 
 we are not only taught, in the clearest manner, the general 
 rules of law, but the reasons upon which they are founded. 
 * * * Pleasure and instruction go hand in hand, and we 
 apply to a science, difficult, indeed, at best, with less reluc- 
 tance, when by a well-directed application we may hope to 
 understand it with method and satisfaction. I would take 
 leave to add one more desire, that you would be pleased to 
 send me the Tatlers and Guardians — the Spectators I have, 
 and these, with the others, will afford me agreeable desultory 
 reading." 
 
 Mr. Johnston was a faithful and competent instructor. 
 "As a lawyer he was ever highly honored and esteemed; his 
 patience, his industry, his logic were signal. * * * As 
 early as 1776 he was one of a committee to revise the statutes 
 of the State." He was later one of the State Judges. Mr. 
 Iredell received from Governor Tryon a license to practice 
 law in all the Inferior Courts of the Province on December 
 14, 1770. He was licensed by Governor Martin to practice 
 in the Superior Courts ISTovember 26th, 1771, and duly 
 qualified at the April Term, 1772. During the intervening 
 year, "with healthy but vehement ambition," he prosecuted 
 
8 James Iredell. 
 
 his studies and regularly attended the courts. "Books be had 
 not, save a volume or two stuffed into his saddle-bag with a 
 scanty supply of apparel. * * * Iredell early fixed his 
 eyes upon the glittering heights of his profession, and so 
 self-assured was he of his capacity and industry that he never 
 faltered in his purpose — he was resolute to win; and with 
 such men to resolve is to compel success. If unemployed in 
 the courthouse, he peopled his chambers with judge, jury and 
 spectators ; he argued his cases before his imaginary court 
 and rej)orted his own arguments." McRee gives an illus- 
 tration of his habit of writing out arguments in cases tried 
 in the courts, although not employed in them. It is interest- 
 ing, both because of the careful and orderly statement of 
 the facts and the logical arrangements of argument which 
 marked his opinions when called into judicial service. The 
 journal shows that, while preparing for his Superior Court 
 license, Iredell was diligent in the study of Blackstone's Com- 
 mentaries. The work had been j^ublished but a few years 
 before and was widely read in America. Burke, in his 
 speech on ''Conciliation," stated that the booksellers informed 
 him that as large a number of copies had been sold in America 
 as in England. Iredell writes in his journal, "Came home 
 and read an hour or two in Blackstone." "Employed myself 
 all the rest of the evening reading Blackstone." "I imme- 
 diately came home and finished the second volume of Black- 
 stone." 
 
 The journal, during this year, leaves the reader in doubt 
 whether he was most assiduous in his devotions to Miss Han- 
 nah Johnston or the great commentator. That he woeed 
 both successfully is evidenced by the fact that on January 
 18, 1773, he was united in marriage to this estimable lady, 
 who "supplemented what he needed. * * * gj^e was 
 his constant monitor, adviser, banker and trusted friend. 
 * * * Their lives, united in one stream, flowed onward 
 
James Ikedell. 9 
 
 softly and gently." She was the sister of Governor Samuel 
 Johnston. Their correspondence, when separated by his 
 riding the circuit in the practice of his profession and, 
 later, in the discharge of his high official duties, is both in- 
 teresting and instructive. Iredell's grandfather was a clergy- 
 man of the Church of England. His early religious training 
 and his associations impressed their influence upon his mind 
 and character. He was given to religious contemplation and 
 often wrote "reflections" upon religious subjects quite re- 
 markable for so young a man. Within a year after coming 
 to Edenton he writes his Sunday "thoughts," concluding: "I 
 am not ashamed to think seriously of religion, and hope no 
 example will induce me to treat it with indifference. Youth 
 is as much concerned to practice and revere it as any in the 
 more advanced stages of life, and I have drawn up the fore- 
 going plain, but useful, remarks as thinking it the best way 
 of employing my time when I have had no opportunity of 
 attending public worship." Writing his brother, he says: 
 ^'Let me desire you to let no flashes of wit, or impertinent 
 raillery of religion, shock your principles or stagger your 
 belief. Men of this cast laugh at religion, either because 
 they know nothing of it or care nothing for it. Men of shal- 
 low understandings or bad hearts are those who generally 
 rank themselves in the list of free thinkers." 
 
 The controversies between the Royal Governors and the 
 people in North Carolina began at an early day. They con- 
 tinued to grow in number and intensity. "Though a King's 
 officer, Iredell soon became imbued with the views of the 
 American leaders ; felt that his future was identified with 
 their future, and determined to participate in their defeat 
 or success, to share in their disgrace or glory. He soon 
 formed intimacies with the leading men of the Province, 
 men whose thoughts were to irradiate subsequent darkness, 
 and whose voices were destined to cheer and sustain the peo- 
 
10 James Ibedell. 
 
 pie in the hour of disaster. Ere long he began with them an 
 active correspondence, and his part was so well supported 
 that a learned gentleman and most competent judge writes i 
 'He was the letter writer of the war. He had no equal 
 amongst his contemporaries.' " 
 
 As early as September, 1773, he published his first politi- 
 cal essaj, saving, among other things : "'I have always been 
 taught, and till I am better informed must continue to be- 
 lieve, that the Constitution of this country is founded on the 
 Provincial Charter, which may well be considered the 
 original contract between the King and the inhabitants." 
 ''In 1774 the Revolution was fairly inaugurated in ISTorth 
 Carolina. ]^owhere were the points in dispute between the 
 colonies and Great Britain more clearly stated or more ably 
 argued. The people were generally agreed. ■» * * Jt 
 is true that none meditated independence as an object of 
 desire; but it was foreseen as a possible consequence. The 
 contest, that was soon to be developed into flagrant war, was 
 eminently, in North Carolina, based upon principle. The 
 Whig leaders, ready with the pen and the columns of the 
 newspapers and the pamphlets, discussed the tax on tea and 
 the vindictive measures that followed the prompt opposition 
 of Boston, with a degree of learning and logic that was not 
 surpassed by any of their contemporaries in other provinces. 
 * * * There was no array of class against class. The 
 foremost in talent were foremost in all measures ; they had 
 the confidence of the people. The followers of such men as 
 Harvey, Johnston, Ashe, Harnett, Hooper, and Caswell could 
 not be otherwise than well informed. * * * In the quiet 
 retreat of his study, with naught to stimulate but the prompt- 
 ings of his own honest heart and, perchance, the smile of his 
 noble wife, with patient toil Iredell forged and polished the 
 weapons of debate ; if others fixed his mark he recked not 
 who claimed the honor of the cast." 
 
James Ikedell. 11 
 
 Mr. Iredell, at this time, began a correspondence with 
 William Hooper, in which they discussed the questions en- 
 gaging the attention of thoughtful men. On April 26, 1774, 
 Hooper writes him: ''Every man who thinks with candor 
 is indebted to you for the share you have taken in this in- 
 teresting controversy. * * * You have discussed dry 
 truths with the most pleasing language, and have not parted 
 with the most refined delicacy of manners in the warmth of 
 the contest. * * * I am happy, dear sir, that my con- 
 duct in public life has met your approbation. It is a suf- 
 frage from a man who has wisdom to distinguish and too 
 much virtue to flatter. * * * Whilst I was active in 
 contest you forged the weapons which were to give success 
 to the cause which I supported. * * * With you I 
 anticipate the important share which the colonies must soon 
 have in regulating the political balance. They are striding 
 fast to independence, and ere long will build an empire upon 
 the ruin of Great Britain ; will adopt its Constitution, purged 
 of its impurities, and, from an experience of its defects, will 
 guard against those evils which have wasted its vigor and 
 brought it to an untimely end/j 
 
 The first Provincial Congress "called by the people them- 
 selves" — defying the threats of the Royal Governor — met in 
 'New Bern August 25, 1774. Iredell's friends, Johnston, 
 Hewes, Thomas Jones, and Hooper, were conspicuous mem- 
 bers. John Harvey was "Moderator." The first of Iredell's 
 political efforts, which have been preserved, was addressed 
 to "The Inhabitants of Great Britain." The address is set 
 out in full in McRee's "Life and Correspondence," and con- 
 tains an able and exhaustive statement and defense of the 
 cause of the Americans. He gives the history of their coming 
 and settling the province, the provisions of their charters and 
 the violations of them by the King and his Parliament. 
 
 Iredell soon thereafter settled his accounts and closed his 
 
12 JaIees Iredell. 
 
 career as Collector, to which position he had been promoted. 
 After the 4th of July, 1776, he became deeply interested in 
 the proposed form of government to be adopted by the new 
 State. He had attended the courts, when open, and had 
 given diligent attention to the practice of his profession. 
 After the adoption of the Constitution ( November, 1776) 
 and the inauguration of a State Government a judicial sys- 
 tem was established — ''Iredell drawing the first Court Law." 
 At the session of the Assembly, ISTovember, 1777, the State 
 was laid off into three judicial districts; Samuel Ashe, 
 Samuel Spencer, and James Iredell were appointed judges. 
 His appointment was brought about by William Hooper, 
 who writes December 23, 1777: "Before this reaches you 
 you will have received the information of being promoted 
 to the first honors the State can bestow. * * * You will 
 be at a loss to conjecture how I could have been accessory to 
 this step after you had been so explicit to me on the subject. 
 Be assured that I was not inattentive to your objections, nor 
 did I fail to mention them and urge them with sincerity to 
 every person who mentioned you for the office to which you 
 are now designated. * * * j expostulated with them 
 upon the impropriety of electing one who in all probability 
 might decline, and leave one of the seats of justice vacant. 
 * * * Their reasoning prevailed and you have now the 
 satisfaction of an unrestricted choice. The appointment has 
 been imposed upon you, and therefore you are at perfect lib- 
 erty to act or not." Archibald Maclaine wrote : "I can only 
 say that if it would answer your purposes as fully as it would 
 please your friends and the public, it would give me real 
 satisfaction." When it is remembered that at this time Ire- 
 dell was but twenty-seven years old ; that only ten years prior 
 thereto he had come to the State a youth of seventeen, un- 
 known, without wealth or other influences, his election, un- 
 sought and against his inclination, to the highest judicial 
 
James Ikedell. 15 
 
 position in the State, it is manifest that by his personal con- 
 duet and character, as well as his learning and ability, he 
 had strongly and favorably impressed himself upon the peo- 
 ple and their representative men. William Hooper was a 
 lawyer of learning and experience, as were other members of 
 the Assembly. Maclaine, also an eminent lawyer and mem- 
 ber of the Assembly, thus expressed the opinion of his as- 
 sociates: "However arduous the task you have undertaken, 
 we have the most hopes from your judgment and integrity, 
 and these hopes are strengthened by your diffidence. * * •^ 
 The members of the Assembly, in appointing you, thought, 
 with great reason, that they effectually served themselves and 
 their constituents. As to myself, I confess I was actuated 
 by duty to the public, having been taught that your promo- 
 tion would more effectually serve them than you." Iredell 
 accepted the judgeship at much personal sacrifice. The sal- 
 ary was totally inadequate for the support of his family. 
 
 Replying to a letter from Governor Burke calling upon 
 him to hold Courts of Oyer and Terminer, he says: "In re- 
 gard to the courts your Excellency proposed immediately to 
 establish, I am always ready to attend them as my duty re- 
 quires, but I take the liberty to represent to your Excellency 
 that I fear that I shall not be able to defray the expenses they 
 will involve me in unless I receive a sum of money from the 
 public. * * * I am not ashamed of confessing my 
 poverty, as it has not arisen from any dishonorable cause. My 
 circumstances have suffered deeply, but if I can bear myself 
 above water I am content to suffer still. * * * j shall 
 not fail to do my utmost then and at all times in discharge 
 of my duty."^ 
 
 He rode one circuit, during which his letters to his wife 
 give an interesting account of the country through which he 
 traveled, the people with whom he was associated and the 
 
 'State Records of N. C, XXII, 552. 
 
14 jAiftEs Iredell. 
 
 experiences of a judge ''on circuit" at that early period in 
 our history. He went as far west as Salisbury. At the Eden- 
 ton term, June 6, 1778, the grand jury requested that he 
 furnish his charge for publication, saying: "This charge 
 vindicates the American States, in the establishment of inde- 
 pendency, by arguments drawn from undeniable rights and 
 from real necessity, and grounded on incontestable facts. 
 * * * It breathes a spirit of pure disinterested patriot- 
 ism, and holds forth the most powerful incentive to persist 
 in the opposition which America has so successfully begun. 
 It points out persuasively the importance of a faithful ob- 
 servation of the various political and relative duties of se- 
 curity upon which the happiness of individuals and of the 
 whole depends, and which will tend to give stability to our 
 present Constitution." 
 
 The language of the charge is spirited, the sentiment pa- 
 triotic, with considerable warmth of expression towards the 
 King and his ministers. A few extracts will give an idea 
 of its general tone. Referring to the fact that no courts had 
 been held for a long time, he says : "This court of justice 
 opens at a most interesting period of the policy of this coun- 
 try. We have been long deprived of such, from a variety 
 of causes, in some of which we have shared with our brethren 
 on the Continent ; others were peculiar to ourselves. The 
 event, however, has been unhappy and distressing, and every 
 wellwisher to his country must view with pleasure a scene 
 of anarchy changed to that of law and order, and powers of 
 government established capable of restraining dishonesty and 
 vice. Such powers have been established under circumstances 
 which should induce to them peculiar reverence and regard. 
 They have not been the effect of usurpation; they have not 
 proceeded from a wanton desire of change ; they have not 
 been imposed upon you by the successful arms of a tyrant; 
 they have been peaceably established by the public at large, 
 
James Iredell. 15 
 
 for the general happiness of the people, when they were 
 reduced to the cruel necessity of renouncing a government 
 which ceased to protect, and endeavored to enslave them, 
 for one which enabled them, with a proper share of courage 
 and virtue, to protect and defend themselves. * * * y^Q 
 desired only the privileges of a free people, such as our an- 
 cestors had been and such as they expected we should be. 
 We knew it was absurd to pretend we should be free when 
 laws might, at pleasure, be imposed upon us by another peo- 
 ple. * * * Our ancestors came here to enjoy the bless- 
 ings of liberty. They purchased it at an immense price. 
 Their greatest glory was that they had obtained it for them- 
 selves and transmitted it to their posterity. God forbid that 
 their posterity should be base or weak enough to resign it, 
 or let it appear that the true British spirit, which has done 
 such wonders in Engianct, has been lost or weakened by 
 being transplanted to America. * * * You will, I hope, 
 excuse, gentlemen, the particular, perhaps too great particu- 
 larity, with which I have gone into this subject. Yet I 
 thought it my duty to point out to you some of the principles 
 upon which the revolution in our government has taken place 
 and which, in my opinion, prove not only the propriety of 
 its being effected, but the indispensable obligation we are 
 under to maintain and support it. * * * The struggles 
 of a great people have almost always ended in the establish- 
 ment of liberty. The enjoyment of it is an object worthy of 
 the most vigilant application and the most painful sacrifices. 
 Is there anything we read with more pleasure than the suffer- 
 ings and contentions of a brave people who resist oppression 
 with firmness, are faithful to the interests of their country 
 and disdain every advantage that is incompatible with them ? 
 Such a people are spoken of with admiration by all future 
 ages. **■?«• These are the glorious effects of patriot- 
 ism and virtue. They are the rewards annexed to the faith- 
 
16 JaIies Ieedell. 
 
 ful discharge of that great and honorable duty, fidelity to 
 oiir country." 
 
 Eeferring to the burdens laid upon the colonists and 
 their right to resist them, he says: "We knew of no right 
 they could have to such a power. Our charters did not 
 recognize it. It certainly was not in our ancestors' con- 
 templation, who left that very country because freedom could 
 not be enjoyed in it. Custom had given it no sanction. 
 
 * * * It was reconcilable to no principles of justice. 
 
 * * * We despised the miserable application of a few 
 political maxims * * * which to this hour is the basis 
 upon which all the fraud, iniquity, injustice, cruelty and op- 
 pression that America has experienced from Great Britain 
 have been defended. * * * The divine right of kings 
 was exploded with indignation in the last century. Men 
 came at length to be persuaded that they were created for a 
 nobler purpose than to be slaves of a single tyrant. They 
 did not confine this idea to speculation; they put to death 
 one King and expelled another. This was done in England, 
 the seat of our haughty enemies, who seem to think the right 
 of resistance is confined alone to their kingdom." When it 
 is remembered that this charge was delivered at a time when 
 the American cause was far from hopeful, the courage ex- 
 hibited was of no low order. Iredell, too, was a conserva- 
 tive — but withal a man and a patriot. 
 
 Soon thereafter he sent his resignation to the Governor, 
 who accepted it with much reluctance, saying, "as you can 
 well conceive, well knowing your place can not be supplied 
 by a gentleman of equal ability and inclination to serve the 
 State." He continued the practice of the law until, on July 
 8, 1779, he was tendered and accepted the position of At- 
 torney General. Hooper writes, expressing pleasure that he 
 has consented to accept, saying: "I have the happiness to 
 assure you that the leading characters in this part of the 
 
James Iredell. 17 
 
 country [Cape Fear] speak of yon as a capital acquisition 
 to onr courts, and exult that there is a prospect of offenders 
 being brought to due punishment without the passions of 
 party or the prejudice of individuals swaying the prosecu- 
 tion." Iredell traveled the circuit, attending the courts in 
 the discharge of his duties and receiving a large share of civil 
 business. His letters to Mrs. Iredell give an interesting and 
 often amusing account of his experiences. From New Bern 
 he writes: ''Expenses are enormous. My last jaunt has 
 cost me $600 on the road and the depreciation will certainly 
 proceed most rapidly, for they are giving away the money 
 at the printing office in so public and careless a manner as 
 to make it quite contemptible." Again h? writes: "There 
 has not been much business, but I have been applied to in 
 almost everything. I have already received in civil suits 
 1,240 pounds in paper besides nineteen silver dollars. I ex- 
 pect to receive tomorrow 500 pounds and my salary for this 
 and Edenton Court, which will be 1,000 pounds. * * * 
 My fear is that, as usual, the money will be much depreci- 
 ated before I lay it out. I shall carefully preserve the hard 
 money to the last." From New Bern, at the following term, 
 he writes Mrs. Iredell that he has received 4,540 pounds 
 "of this currency," 1,350 pounds of Continental, and $9 in 
 hard money; that he will receive 1,500 pounds for his salary 
 at these courts, "but my expenses here are monstrous — 160 
 jDounds a day for my board and lodging only." At Wil- 
 mington he was employed in the first admiralty case tried in 
 the State of which the record is extant. The Assembly at 
 Halifax, 1781, voted the judges 20,000 pounds each and the 
 Attorney General 10,000 pounds "for making up the depreci- 
 ation of their allowance." Iredell resigned his office (1781), 
 of which, writing to his brother, Rev. Arthur Iredell, July, 
 1783, he says: "Since then I have been only a private law- 
 2 
 
18 James Iredell. 
 
 yer, but with a show of business very near equal to any law- 
 yers in the country." 
 
 After the ratification of the Treaty of Peace and the with- 
 drawal of troops from the State, the people began the work 
 of restoring their fortunes and enacting laws suited to their 
 new political situation. Differences, more or less funda- 
 mental, which had manifested themselves during the war, 
 became more marked — dividing the leaders and people into 
 parties. Iredell was in agreement with the conservatives, 
 Johnston, Hooper, Maclaine, Davie, Spaight, and others, in 
 opposition to Willie Jones, Thomas Person, Samuel Spencer, 
 and others. The former insisted that the State should carry 
 out in good faith the terms of the treaty, and adoj)t such 
 measures as were necessary for that purpose; enforce con- 
 tracts and maintain a strong and stable government. While 
 Iredell neither held nor sought any public position, he was 
 "in touch," through correspondence and otherwise, with the 
 leaders of the party known as Conservatives. He prosecuted 
 the practice of his profession with industry and success, rank- 
 ing easily with the leaders of the bar. The more radical 
 sentiment in the State was disposed to magnify the power of 
 the Legislature and oppose any restriction upon it by the en- 
 forcement of Constitutional limitations, especially by the 
 courts. In an address to the public, Iredell set forth his 
 views regarding the enforcement of Constitutional limita- 
 tions upon the Legislature. Referring to the Convention 
 (ISTovember, 1776), which formed the Constitution, he says: 
 "It was of course to be considered how to impose restrictions 
 on the Legislature that might still leave it free to all useful 
 purposes, but at the same time guard against the abuse of 
 unlimited power, which was not to be trusted, without the 
 most imminent danger, to any men or body of men on earth. 
 We had not only been sickened and disgusted for years with 
 
James Iredell. 19 
 
 the high aud almost impious language from Great Britain, 
 of the omnipotent power of the British Parliament, but had 
 severely smarted under the eifects. We felt, in all its rigor, 
 the mischiefs of an absolute and unbounded authority, 
 claimed by so weak a creature as man, and should have been 
 guilty of the basest breach of trust as well as the grossest 
 folly if in the same moment, when we spurned at the inso- 
 lent despotism of Great Britain, we had established a despotic 
 power among ourselves. * * * j have no doubt but that 
 the power of the Assembly is limited and defined by the Con- 
 stitution. It is a creature of the Constitution. * * * 
 These are consequences that seem so natural, and indeed so 
 irresistible, that I do not observe that they have been much 
 contested. The great arg-ument is, that although the As- 
 sembly have not a right to violate the Constitution, yet if 
 they in fact do so, the only remedy is either by a humble 
 petition that the law may be repealed or a universal resist- 
 ance of the people. But, in the meantime, their act, what- 
 ever it is, is to be obeyed as a law; for the judicial power 
 is not to presume to question the power of an act of As- 
 sembly." He proceeds, with remarkable clearness and force, 
 to set forth his opinion upon this question, expressing the 
 view which has since been pursued by the courts, both State 
 aud Federal. He concludes: "These are a few observations 
 that have occurred to me on this subject. They are given by 
 a plain man, unambitious of power, but sincerely and warmly 
 interested in the prosperity of his country; feeling every re- 
 spect for the Constitutional authority of the Legislature 
 which, in his opinion, is great enough to satisfy an ambi- 
 tious as well as support the efforts of a public-spirited mind, 
 but a determined enemy on all occasions of arbitrary power 
 in every shape whatever, and reverencing beyond expression 
 that Constitution by which he holds all that is dear to him 
 in life." It must be remembered that these views were ex- 
 
20 James Ikedell. 
 
 pressed before any court had lield that it was within the 
 power and therefore the duty of the judiciary to refuse to 
 enforce statutes passed without Constitutional warrant. The 
 question had been mooted, and in one case passed upon, prior 
 to the date of Iredell's address (1786), but the opinion of the 
 Court had not been published beyond the jurisdiction in which 
 it was decided. Richard Dobbs Spaight, while a member 
 of the Convention at Philadelphia (August 12, 1877) in a 
 letter to Iredell, refers to the action of the judges in holding 
 an act depriving litigants of trial by jury {Bayard v. Single- 
 ton, 1 Martin, '42) unconstitutional. He laments "that the 
 Assembly have passed laws unjust in themselves and mili- 
 tating in their principles against the Constitution in more 
 instances than one." He says : ''I do not pretend to vindi- 
 cate the law, which has been the subject of controversy; it 
 is immaterial what law they have declared void ; it is their 
 usurpation of the 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. * * * It must be 
 acknowledged 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; the only one that I know of is the annual 
 election which, by leaving out such members, will in some 
 degree remedy, though it can not prevent, such evils as may 
 arise." On August 26, 1787, Iredell answered Mr. Spaight's 
 letter at length, saying: "In regard to the late decision at 
 New Bern, I confess that it has ever been my opinion that 
 an act inconsistent vdth 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 funda- 
 
James Iredell. 21 
 
 mental law, limiting the powers of the Legislature, and with 
 which every exercise of those powers must be compared." In 
 regard to his apprehension that the power will be abused, 
 Iredell says: "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 when he thought he 
 could possibly avoid it. But whatever may be the conse- 
 quences, formed as our Constitiution is, I can not help think- 
 ing they are not at liberty to choose, but must in all ques- 
 tionable 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." 
 
 The Convention at Philadelphia having submitted the new 
 Federal Constitution to the Legislatures of the States, Iredell 
 at once entered upon the task of securing its adoption by the 
 people of North Carolina. In no State was the opposition 
 more pronounced or determined. The popular leaders of the 
 dominant party were active in their opposition, one of the 
 most prominent of them declaring that "Washington was a 
 d — n rascal and traitor to his country for putting his hand to 
 such an infamous paper as the new Constitution." Another, 
 said to have been the most popular leader in the State, 
 seriously insisted in the Convention upon rejecting it with- 
 out discussion, saying that he had made up his mind and was 
 sure that others had done so. ''Of all those who were most 
 active in pressing upon the people the adoption of the Con- 
 stitution Mr. Iredell was undoubtedly the most able and 
 energetic." 
 
 At the session of the Legislature ISTovember, 1787, Mr. 
 Johnston was elected Governor and Mr. Iredell a member 
 
22 JImes Iredell. 
 
 of the Council; he was also appointed a commissioner to re- 
 vise and collect the Acts of the General Assembly, then in 
 force. A convention of the people was called to meet at 
 Hillsboro, composed of delegates from the several counties 
 and the borough towns. Iredell was elected, unanimously, 
 from Edenton. On January 8, 1788, he published a pam- 
 phlet entitled "Answer to Mr. Mason's Objections to the New 
 Constitution Recommended by the late Convention at Phila- 
 delphia," by "Marcus." He stated each of Mr. Mason's 
 "objections" in their order, and in the same order answers 
 them. It is not within the scope of this sketch to undertake 
 a review of Mr. Iredell's "answer" to the celebrated paper 
 of Mr. George Mason. The pamphlet made a favorable im- 
 pression on the public mind and strongly influenced Iredell's 
 future career. The correspondence between Iredell and Wil- 
 liam Hooper, William R. Davie and Maclaine gives an inter- 
 esting view of the condition of public sentiment in the State 
 in regard to the new Constitution. Says one, writing of the 
 leaders in the Convention: "The most prominent Federal- 
 ists were Iredell, Davie, Governor Johnston, Spaight, Mac- 
 lain [sic] and Steele. Foremost in their number and the 
 leading spirit of the whole body was Judge Iredell, conspic- 
 uous for his graceful elocution, for the apt application of his 
 varied learning, his intimate knowledge of the schemes of 
 government, and his manly and generous temper. 
 
 "Davie, with spotless plume, towering in intellect, as in 
 stature, above the majority of the members, stood like a 
 knight of the olden time, lance in hand, the luster of his 
 military services played about him and was reflected in flash- 
 ing light from hauberk, morion and polished steel. 
 
 "Governor Johnston, the President of the Convention, calm, 
 lucid and convincing, seldom participated in the debate; 
 when he did, his blows were always delivered with stunning 
 effect. 
 
James Iredell. 23 
 
 "Maclaine, sensible, pointed and vigorous, was the Hotspur 
 of his part3\ 
 
 "Steele was laborious, clear-sighted and serviceable by his 
 knowledge of men. 
 
 ''Willie Jones, although democratic in theory, was aristo- 
 cratic in habits, tastes, pursuits and prejudices; he lived 
 sumptuously and wore fine linen ; he raced, hunted and 
 played cards. A patriot in the Revolution, he was now the 
 head of a great party. * * * JJ^ was a loving and 
 cherished disciple of Jefferson, and was often taunted with 
 his subserviency to Virginia 'abstractions.' He seldom 
 shared in the discussions. 
 
 "Judge Spencer, candid and temperate, was in debate far 
 superior to his associates. 
 
 "David Caldwell, a Presbyterian divine, was learned and 
 intelligent. He had for years discharged the triple functions 
 of preacher, physician and teacher. 
 
 ''McDowell, the rival of Davie in military renown, was a 
 man of action rather than words. 
 
 "Blood worth, by no means the least among them, was one 
 of the most remarkable men of the era, distinguished for 
 the versatility of his talents and his practical knowledge of 
 men, trades, arts, and sciences. The child of poverty, dili- 
 gence and ambition had supplied the place of patronage and 
 wealth ; he was resolute almost to fierceness, and almost radi- 
 cal in his democracy." 
 
 William Hooper, General Allen Jones, William Blount, 
 and Judge Ashe were defeated at the polls. 
 
 The debates were conducted with ability and dignity, and 
 at times with much asperity. While Davie, Spaight, Mac- 
 laine and Johnston bore their share, Iredell was the acknowl- 
 edged leader for adoption. The proceedings of the Conven- 
 tion are published in Elliott's Debates. The opposition could 
 not be overcome and, on the final vote, the Constitution was 
 
24 JaIies Iredell. 
 
 rejected by a vote of 184 to 84.^ While Iredell was defeated 
 lie made many friends and advanced his reputation in the 
 State. One of the new western counties was given his name. 
 The requisite number of States having ratified the Constitu- 
 tion, the new government was organized April 30, 1789, 
 Il^orth Carolina taking no part but remaining a free, sover- 
 eign, independent State. 
 
 It appears from the letters of the Honorable Pierce But- 
 ler, Senator from South Carolina, written from New York, 
 August 11, 1789, that Iredell's reputation had extended be- 
 yond the borders of the State. He says : "The Southern 
 interest calls aloud for some such men as Mr. Iredell to rep- 
 resent it — to do it justice." Dr. Williamson ^vi'ites, at the 
 same time: ''The North Carolina Debates are considerably 
 read in this State, especially by Congress members, some 
 of whom, formerly had little knowledge of the citizens of 
 North Carolina, have lately been very minute in their in- 
 quiries concerning Mr. Iredell. By the way, I have lately 
 been asked by a Senator whether I thought you would accept 
 a judge's place under the new government if it required your 
 moving out of the State, as we are not in the Union." A 
 second Convention met at Fayetteville November 2, 1789. 
 Iredell was not a candidate for election as a delegate. With 
 but little debate the Constitution was ratified and amend- 
 ments proposed. A bill was passed establishing a university, 
 the names of Samuel Johnston and James Iredell being placed 
 at the head of the list of trustees.* 
 
 Maclaine writes Iredell December 9, 1789 : ''What would 
 you think of being the District Judge ?" He was soon called 
 to a larger field and higher judicial service. On February 
 10, 1790, without solicitation on his part, Mr. Iredell was 
 nominated by President Washington, and unanimously con- 
 
 'Convention of 1788.— N. C. Booklet, Vol. IV. 
 
 'Battle's History of the University of North Carolina, 821 
 
James Iredell. 25 
 
 firmed by the Senate, one of the Associate Justices of the 
 Supreme Court of the United States. He was just thirtj- 
 iiine vears old. The President enclosed his commission with 
 the following letter: "One of the seats on the bench of the 
 Supreme Court of the United States having become vacant 
 bv the resignation of the gentleman appointed to fill the 
 same, I have thought fit, by and with the advice and consent 
 of the Senate, to appoint you to that office, and have now 
 the pleasure to enclose you a commission to be one of the 
 Associate Judges of the Supreme Court of the United States. 
 You have, sir, undoubtedly considered the high importance 
 of a judicial system in every civil government. It may 
 therefore be unnecessary for me to say anything that would 
 impress you with this idea in respect to ours. * * * I 
 must, however, observe that, viewing as I do the Judicial 
 System of the United States as one of the main pillars on 
 which our National Government must rest, it has been my 
 great object to introduce into the high offices of that depart- 
 ment such characters as, from my own knowledge or the best 
 information, I conceived would give dignity and stability to 
 the government * * * at the same time that they added 
 luster to our national character." It is said that "Washing- 
 ton derived his conviction of Iredell's merits from a perusal 
 of the Debates in the North Carolina Convention and the 
 famous reply to George Mason's objections."^ Butler wrote 
 Iredell February 10th : "I should have been happy to have 
 had you in Congress. The Union will no longer be deprived 
 of your aid and the benefit of your abilities. * * * J 
 congratulate the States on the appointment and you on this 
 mark of their well-merited opinion of you." Acknowledging 
 the letter from the President, Iredell writes : "In accepting 
 this dignified trust I do it with all the diffidence becoming 
 the humble abilities I possess ; but, at the same time, with 
 
 'Carson's History of the Supreme Court, 155. 
 
26 JImes Ikedell. 
 
 the most earnest resolution to endeavor by unremitting ap- 
 l)lication a faithful discharge of all of its duties, in the best 
 manner in my power." Judge Iredell was assigned to the 
 Southern Circuit and entered upon the work immediately. 
 He reached Charleston May 23, 1790, and there met Mr. 
 Rutledge before whom he took the oath of office. He writes 
 Mrs. Iredell : *'I have received the greatest and kindest 
 civilities from Mr. Rutledge, at whose house I have the 
 pleasure of staying." He proceeded to Savannah. There 
 was but little business in the new Court other than organiz- 
 ing the Circuit Courts and putting the new judicial system 
 in working order. Supposing that the judges would "rotate" 
 in the Circuit Court work, he removed his family to i^ew 
 York. The Court having, to his surprise, adopted the rule 
 which confined judges to one circuit — Iredell's being the 
 Southern — he found himself very much embarrassed. The 
 long distance to be traveled (1,900 miles) twice each year 
 was a severe tax upon his health and strength. He justly 
 complained of the arrangement to the Chief Justice, who 
 conceded that "your share of the task has hitherto been more 
 than in due proportion." Although the judges refused to 
 make a more equitable rule, by exchanges, they sometimes 
 rode different circuits. Justice Iredell took his seat with the 
 Chief Justice and his associates at the August Term, 1790. 
 No business was transacted, the Court adjourning siiie die. 
 Iredell again rode the Southern Circuit, but it does not ap- 
 pear that there was much business to engage his attention. 
 
 William Hooper, to whom Iredell was strongly attached, 
 and for whose character and talents he had the highest re- 
 gard, died October 14, 1790. Writing a letter of condolence 
 to Mrs. Hooper, Iredell said: "An attachment founded on 
 the most perfect esteem and upon a gratitude excited by 
 repeated and most flattering obligations, ought not, and, in 
 me, I trust is not capable of being weakened by any change 
 of place, time or circumstance." 
 
James Ikedell. 27 
 
 A suit was instituted at this time in the State Court against 
 Iredell and his co-executor upon a bond given by their tes- 
 tator to a British subject. His co-executor pleaded the '*Con- 
 fiscation Act," in which Iredell refused to join. By direc- 
 tion of Justices Wilson, Blair and Kutledge a writ of certi- 
 orari was issued to the State Court, which the judges refused 
 to obey. As an indication of the jealousy of the new gov- 
 ernment in the State, the General Assembly adopted a reso- 
 lution declaring that "The General Assembly do commend 
 and approve of the conduct of the judges of the Courts of 
 Law and Courts of Equity in this particular."*' At the same 
 session the House of Commons, by a vote of twenty-five to 
 fifty-five, refused to adopt a resolution requiring the Gov- 
 ernor and other State officials to take an oath "to support the 
 Constitution of the United States." 
 
 On the Southern Circuit at Savannah (1791) a question 
 arose, stated by Judge Iredell, as follows: "There were 
 depending some suits for the recovery of debts, to which pleas 
 were put in by the defendants, not denying the existence of 
 the debts, but showing (as they conceived) a right in the 
 State of Georgia to recover them under certain Acts of As- 
 sembly of the State passed prior to the Treaty of Peace. The 
 Attorney and Solicitor General of the State were directed to 
 interfere in the defense, but the counsel for the defendants 
 refused to permit them. The Attorney and Solicitor Gen- 
 eral, being dissatisfied with the pleas, applied to the Court 
 for leave to interfere in behalf of the State." Judge Iredell 
 was of the opinion that the State could appear only in the 
 Supreme Court, and for this reason denied the motion. He 
 suggested that the State had a remedy by an appeal to the 
 Equity jurisdiction of the Supreme Court. Deeply impressed 
 with the gravity as well as the novelty of the question he 
 writes: "I have been thus particular in stating this inter- 
 
 sState Records, XXI, 441, 865, 1080, 1082. 
 
28 Ji.MES Iredell. 
 
 esting subject, because it appears to me of the highest mo- 
 ment, although I believe it would be difficult to devise an un- 
 exceptionable remedy. But the discussion of questions 
 wherein are involved the most sacred and awful principles 
 of public justice, under a system without precedent in the 
 history of mankind, necessarily must occasion many embar- 
 rassments which can be more readily suggested than re- 
 moved." Out of these suits arose the celebrated case of 
 Georgia v. Brailsford, 2 Dallas, 402 ; 3 Dallas, 1. 
 
 At the April Term, 1792, of the Circuit Court at Sa- 
 vannah Judge Iredell delivered a charge to the grand jury 
 which so impressed the members that they unanimously re- 
 quested its publication. A number of his "charges" in other 
 circuits were published at the request of the grand juries. 
 At the June Term, 1792, at the Circuit Court at Raleigh, 
 ^. C, Judge Iredell, with District Judge Sitgreaves, was 
 confronted with a delicate question. Congress had enacted 
 a statute directing that the invalid pension claims of widows 
 and orphanji should be exhibited to the Circuit Courts ; that 
 those to whom the Court gTanted certificates should be placed 
 on the Pension list, subject to the review of the Secretary of 
 War. Conceiving that the duties thus imposed were not ju- 
 dicial in their character, and therefore not authorized by the 
 Constitution, which carefully separated the powers and duties 
 of each department of the Govermnent, Judge Iredell pre- 
 pared a remonstrance, addressed to the President, in which 
 he said : 
 
 ''We beg leave to premise that it is as much our inclina- 
 tion as it is our duty to receive with, all possible respect every 
 act of the Legislature, and that we never can find ourselves 
 in a more painful situation than to be obliged to object to 
 the execution of any, more especially to the execution of one 
 founded on the purest principles of humanity and justice, 
 which the actual question undoubtedly is. But however 
 
James Iredell. 29 
 
 lamentable a diflference really may be * * * we are 
 under the indispensable necessity of acting according to the 
 best dictates of our judgment." He set forth at length the 
 reasoning by which he had been brought to the conclusion 
 that he could not, with proper regard to the Constitutional 
 distribution of powers, execute this statute, concluding: "The 
 high respect we entertain for the Legislature, our feelings as 
 men for persons whose situation requires the earliest as well 
 as the most effectual relief, and our sincere desire to pro- 
 mote, whether officially or otherwise, the just and benevolent 
 views of CongTess, so conspicuous on this as well as on many 
 other occasions, have induced us to reflect whether we could 
 be justified in acting under this act personally in the char- 
 acter of commissioners during the session of a court ; and 
 could we be satisfied that we had authority to do so we would 
 cheerfully devote such part of our time as might be necessary 
 for the performance of the service." The other Justices ad- 
 dressed similar letters to the President. The question was 
 brought before the Court by a motion made by Attorney Gen- 
 eral Randolph, ex officio, for a mandamus directed to the Cir- 
 cuit Court for the District of Pennsylvania, commanding the 
 Court to proceed to hear the petition of William Hayburn, 
 etc. The Court being divided in opinion whether he could 
 make the motion ex officio, he was permitted to do so on be- 
 half of Hayburn. JSTo decision was made at the time and 
 Congress soon thereafter "made other provisions for the re- 
 lief of pensioners." Judge Iredell, until the act w^as re- 
 pealed, heard a large number of petitions as commissioner. 
 He writes Mrs. Iredell from Hartford, Connecticut, Sep- 
 tember 30, 1792 : "We have a gTeat deal of business to do 
 here, particularly, as I have reconciled myself to the pro- 
 priety of doing the invalid business out of court." In United 
 States r. Ferreria, 13 Howard, 51, Chief Justice Taney says 
 of the action of the Court: "The repeal of the act clearly 
 
30 ^AMEs Iredell. 
 
 ^1 
 
 shows that the President and Congress acquiesced in the cor- 
 rectness of the decision, that it was not a judicial power." 
 Following the refusal to permit Georgia to intervene in 
 the Brailsford case, in the Circuit Court, the State filed a 
 bill in equity in the Supreme Court, alleging that the title 
 to the bond, upon which the action in the Circuit Court was 
 brought, was, by virtue of an act passed during the war, 
 confiscating and sequestrating the property and debts of 
 British subjects in the State. The Court was asked to enjoin 
 the plaintiffs from proceeding, etc. Each of the Judges wrote 
 opinions. Iredell observed that he had sat in the Circuit 
 Court and refused the motion of the State to intervene. He 
 said that the Court could not, with propriety, sustain the 
 aj^plication of Greorgia because whenever a State is a party 
 the Supreme Court has exclusive jurisdiction of the suit. 
 The State, therefore, did not have a complete and adequate 
 remedy at law. ''Every principle of law, justice and honor, 
 however, seem to require that the claim of the State of Georgia 
 should not be indirectly decided or defeated by a judgment 
 pronounced between parties over whom she had no control, 
 and upon a trial in which she was not allowed to be heard." 
 He was of the opinion that an injunction should be awarded 
 to stay the money in the hands of the Marshal until the 
 Court made further orders, etc. The Court was divided in 
 opinion, the majority holding that an injunction should issue 
 until the hearing. At the February Term, 1793, a motion 
 was made by Randolph to dissolve the injunction. Iredell 
 was of the opinion that the motion should be denied. He 
 held that, for several reasons, the State could not sue on the 
 bond at law, asking: "How is she to obtain possession of 
 the instrument without the aid of a Court of Equity ?" point- 
 ing out the practical difficulties which she would encounter 
 in securing the bond. To the suggestions that the State could 
 bring an action of assumpsit for money had and received 
 
James Ikedell. 31 
 
 against Brailsford, which he termed "the legal panacea of 
 modern times," he conclusively answers that while the action 
 "may be beneficially applied to a great variety of cases, it 
 can not be pretended that this form of action will lie before 
 the defendant has actually received the money," and this 
 Brailsford has not done. He suggests that the injunction 
 be continued, and an issue be tried at the bar to ascertain 
 whether the State of Georgia or Brailsford was the true 
 owner. Although a majority of the Judges were of the opin- 
 ion that the State had an adequate remedy at law, the course 
 suggested by Iredell was substantially pursued. At the Feb- 
 ruary Term, 1794, an amicable issue was submitted to a 
 special jury. The argument continued for four days, when 
 the Chief Justice instructed the jury: ''The facts compre- 
 hended in the case are agreed ; the only point that remains is 
 to settle what is the law of the land arising upon those facts ; 
 and on that point it is proper that the opinion of the Court 
 should be given." He says that the opinioiFHf the Court is 
 unanimous, that the debt was subjected, not to confiscation, 
 but only to sequestration, and that therefore the right of the 
 creditor to recover it was revived at the coming of peace, 
 both by the law of nations and the Treaty of Peace. It is 
 not very clear what question of fact was submitted to the de- 
 cision of the jury. He further instructed the jury that 
 while it was the "good old rule" that the Court should decide 
 questions of law and the jury questions of fact, the jury have 
 a right, nevertheless, to take upon themselves to judge of 
 both and to determine the law as well as the facts. The 
 learned Chief Justice suggests that the Court "has no doubt 
 that you will pay that respect which is due to the opinion 
 of the Court; for, as on the one hand, it is presumed that 
 juries are the best judges of facts, it is, on the other hand, 
 presumable that the courts are the best judges of law. But 
 still both objects are lawfully within your power of decision." 
 
32 James Iredell. 
 
 Notwithstanding the facts were agreed upon and the Court 
 was ananimous in opinion in regard to the law, the jury, 
 "after being absent some time," returned to the bar and pro- 
 posed certain questions of law, which being answered, "with- 
 out going away from the bar," they returned a verdict for the 
 defendant. The case has the distinction of being the only 
 one in which a jury was empaneled in the Supreme Court. 
 Flanders says: "The charge of the Chief Justice to the 
 jury is curious, from the opinions he expressed as to the ex- 
 tent of their powers. His statement of the law on that point 
 is clearly erroneous."^ Mr. James Scott Brown says : "The 
 judgment was clearly right, but the statement of the Chief 
 Justice that the jury was judge of the law, as well as the 
 facts, is open to serious doubt."^ 
 
 In Chishohn v. Georgia^ 2 Dallas, 419, standing alone, Ire- 
 dell enunciated and, with a wealth of learning and "arsenal 
 of argument," maintained the position that a State could not 
 be "haled into court" by a citizen of another State. The 
 question arose in an action of assmnpsit instituted in the 
 Suj)reme Court against the State of Georgia, process being 
 served upon the Governor and the Attorney General. The 
 State refused to enter an appearance, but filed a remonstrance 
 and protest against the jurisdiction. The Attorney General, 
 Randolph, representing the plaintiff, lodged a motion that 
 unless the State entered an appearance and showed cause to 
 the contrary, by a. day named, judgment by default and in- 
 quiry be entered, etc. This motion was argued by Randolph, 
 the State not being represented. Each of the justices filed 
 opinions. Iredell first aijalyzed the provisions of the Consti- 
 tution conferring jurisdiction upon the Court in controversies 
 wherein a State was a party. He quotes the language of the 
 Judiciary Act distributing the jurisdiction in such cases. 
 
 'Lives of the Chief Justices, 393. 
 ^Great American Lawyers, Vol. I, 285. 
 
James Iredell. 33 
 
 He dwells somewhat on the meaning which should be given 
 to the word '^controversies" in the Constitution, with the sug- 
 gestion that the use of this word indicated a purpose to so 
 restrict the causes in which jurisdiction was conferred as to 
 exclude actions at law for the recovery of money. He pro- 
 ceeds to consider the question whether it is necessary for 
 CongTess to prescribe a method of procedure in controversies 
 wherein the State is a party. He argues that while the ju- 
 dicial department of the government is established by the 
 Constitution, the Congress must legislate in respect to the 
 number of the Judges, the organization of the Supreme and 
 such inferior courts as may be established, etc. He quotes 
 the fourteenth section of the Judiciary Act, in which power 
 is conferred upon the courts to issue writs of scire facias, 
 habeas corpus, and all other writs not specially provided for 
 by statute, which may be necessary for the exercise of their 
 respective jurisdictions and "agreeable to the principles and 
 usages of law," noting the fact that "neither in the State 
 now in question, nor in any other in the Union, any particu- 
 lar legislation authorizing a compulsory suit for the recovery 
 of money against a State was in being, either when the Con- 
 stitution was adopted or at the time when the Judicial Act 
 was passed," and concludes that only principles of the com- 
 mon law, a law which is the ground work of the laws in every 
 State in the Union and which, so far as it is applicable to 
 the peculiar circumstances of the country, and when no 
 special act of legislation controls it, is in force in such State, 
 as it existed in England at the time of the first settlement of 
 this country ; that no other part of the common law of Eng- 
 land can have any reference to the subject but that which 
 prescribes remedies against the Crown. Thus he is brought 
 to the decision of the real question in the case. It is mani- 
 fest that if, until Congress has prescribed some mode of pro- 
 cedure by which, in controversies wherein the State is a 
 3 
 
34 JJ^MES Iredell. 
 
 party, the Court must proceed by a mode "agreeable to the 
 principles and usages of law," and, to find such principles 
 and usages, resort must be had to the common law, the ques- 
 tion necessarily arises whether the States of the Union, when 
 sued, are to be proceeded against in the same manner as, by 
 the common law, is prescribed for proceeding against the 
 Sovereign. It is just at this point that the line of thought 
 between Iredell and Wilson divides. The former says : 
 "Every State in the Union, in every instance where its sov- 
 ereignty has not been delegated to the United States, I con- 
 sider to be as completely sovereign as the United States in 
 respect to the powers surrenderd ; each State in the Union 
 is sovereign as to all the powers reserved. It must neces- 
 sarily be so, because the United States have no claim to any 
 authority but such as the States have surrendered to them; 
 of course the powers not surrendered must remain as they 
 did before. * * * So far as the States, under the Con- 
 stitution, can be made legally liable to this authority, so far, 
 to be sure, they are subordinate to the authority of the United 
 States, and their individual sovereignty is, in this respect, 
 limited. But it is limited no further than the necessary exe- 
 cution of such authority requires." It will be observed that 
 Iredell is not, at this point in the argument, discussing the 
 question whether it is within the power of Congress to pre- 
 scribe a mode of procedure for bringing a State into the Fed- 
 eral Court to answer for a money demand by a citizen of 
 another State. The argument is that, until it has done so, 
 the only method of proceeding against a State is that pre- 
 scribed by the common law for proceeding against the Sover- 
 eign. It therefore becomes necessary to follow the argument 
 and establish the proposition that prior to the formation and 
 ratification of the Constitution each State was a sovereign, 
 and that in ratifying the Constitution it did not part, in re- 
 spect to the mode of proceeding against it in a controversy in 
 
James Iredell. 35 
 
 the Federal Courts, with its sovereignty. He proceeds to give 
 an exhaustive and interesting history of the method of pro- 
 cedure for the recovery of money at the common law against 
 the King. The history of the law in England in this re- 
 spect, although very interesting, has no permanent interest 
 to the student of American Constitutional law. He thus con- 
 cludes this branch of the discussion : "I have now, I think, 
 established the following propositions : First, that the Court's 
 action, so far as it affects the judicial authority, can only be 
 carried into effect by acts of the Legislature, appointing 
 courts and prescribing their method of procedure ; second, 
 that Congress has provided no new law, but expressly re- 
 ferred us to the old; third, that there are no principles of 
 the old law to which we must have recourse that, in any 
 measure, authorizes the present suit, either by precedent or 
 analogy." 
 
 This conclusion was sufficient, from Iredell's point of 
 view, to dispose of the case before the Court, but Judge Wil- 
 son, who wrote the principal opinion for the majority, threw 
 down the gauntlet and challenged the basic proposition upon 
 which Iredell's argument was founded. Here we find the line 
 of cleavage between the two schools of thought upon the 
 fundamental conception of the relations which the States 
 bore to the Federal Government. Iredell was a Federalist, 
 Wilson a l^ationalist. Wilson opened his opinion with these 
 words: ''This is a case of uncommon magnitude. One of 
 the parties to it is a State, certainly respectable, claiming to 
 be sovereign. The question to be determined is whether this 
 State, so respectable and whose claim soars so high, is amen- 
 able to the jurisdiction of the Supreme Court of the United 
 States ? This question, important in itself, will depend on 
 others, more important still ; may, and perhaps will be, ulti- 
 mately resolved into one no less radical than this — do the 
 people of the United States form a nation ?" Iredell was 
 
36 James Iredell. 
 
 not a man to conceal his opinions when either propriety or 
 duty demanded their expression. Meeting his associate upon 
 the ^'main question," ''So far as this great question affects 
 the Constitution itself, if the present afforded, consistently 
 with the particular grounds of my opinion, a proper occasion 
 for a decision upon it, I should not shrink from its discus- 
 sion. But it is of extreme moment that no Judge should 
 rashly commit himself upon important questions, which it is 
 unnecessary for him to decide. My opinion being thf.! even 
 if the Constitution would admit of the exercise of such a 
 power, a new law is necessary for the purpose, since no part 
 of the existing law applies, this alone is sufficient to justify 
 my determination in the present case. So much, however, 
 has been said on the Constitution that it may not be im- 
 proper to intimate that my present opinion is strongly against 
 any construction of it which will admit, under any circum- 
 stances, a compulsive suit against the State for the recovery 
 of money. I think every word in the Constitution may have 
 its full effect without involving this consequence, and noth- 
 ing but express words or an insurmountable implication 
 (neither of which I consider can be found in this case) 
 would authorize the deduction of so high a power. * * * 
 A State does not owe its origin to the government of the 
 United States, in the highest or any of its branches. It was 
 in existence before it. It derives its authority from the same 
 pure and sacred source as itself, the salutary and deliberate 
 choice of the people." He thus lays down a canon of Con- 
 stitutional construction : "If, upon a fair construction of the 
 Constitution of the United States, the power contended for 
 really exists, it undoubtedly may be exercised, though it is a 
 power of first impression. If it does not exist upon that au- 
 thority, ten thousand examples of similar powers would not 
 warrant its assumption." That Iredell was in harmony with 
 Hamilton is manifest from the following language used by 
 
James Iredell. 37 
 
 him iu the Federalist: "It is inherent in the nature of sov- 
 ereignty not to be amenable to the suit of an individual with- 
 out its consent. This is the general sense and the general 
 practice of mankind, and the exemption, as one of the at- 
 tributes of sovereignty, is now enjoyed by the government 
 of every State in the Union. Unless, therefore, there is a 
 surrender of this immunity in the plan of the Convention, 
 it will remain with the States, and the danger intimated 
 must be merely ideal. * * * There is no color to pre- 
 tend that the State governments would, by the adoption of 
 that plan, be divested of the privilege of paying their own 
 debts in their own way, free from every restraint but that 
 which flows from the obligation of good faith. "^ So Madi- 
 son declared in the Virginia Convention. "It is not within 
 the power of individuals to call a State into court."^^ Mar- 
 shall, meeting the same objection to the Constitution, said: 
 "I hope that no gentleman will think that a State will be 
 called to the bar of the Federal Court. * * * It is not 
 natural to suppose that the sovereign power should be dragged 
 before a court." 
 
 Mr. Carson, writing of the opinion of the Court in Chis- 
 holm's case, says : "From these views Iredell alone dis- 
 sented in an able opinion, of which it has been said that it 
 enunciated, either directly or by implication, all the leading 
 principles which h^ve since become known as State Rights' 
 Doctrine and which as a legal argument was far superior in 
 clearness of reasoning to Wilson or Jay. He confined him- 
 self strictly to the question before the Court, whether an 
 action of assumpsit would lie against a State. "^^ 
 
 In his "Lives of the Chief Justices" Van Santvord says: 
 "These views [of the majority] were not concurred in by 
 Judge Iredell, who delivered a dissenting opinion. That 
 
 "No. 81 (J. C. Hamilton, Ed. 602). 
 "•Elliott's Debates, 2d Ed., 533. 
 "Hist. Sup. Court, 174. 
 
38 J^AMES Iredell. 
 
 able jurist considered the question also in a Constitutional 
 point of view, and as a question of strict construction. With 
 great force of reasoning, and admirable precision and clear- 
 ness of illustration, he analyzed the argument of the Attorney 
 General, and arrived at exactly the opposite conclusion. His 
 opinion was that no part of the existing law applied to this 
 case; and even if the Constitution would admit of the exer- 
 cise of such a power, a new law was necessary to carry the 
 power into effect, and that assumpsit at the suit of a citizen 
 would not lie against a State. One can scarcely arise from 
 a careful perusal of this able opinion without being sensibly 
 impressed with the force of the reasoning of the learned 
 Judge, and the accuracy of his deductions. Lucid, logical, 
 compact, comprehensive, it certainly compares very favor- 
 ably with that of the Chief Justice in every respect, and as a 
 mere legal argument must be admitted to be far superior.^" 
 * * * As a constitutional lawyer Judge Iredell had no 
 superior upon the bench. His judicial opinions are marked 
 by great vigor of thought, clearness of argument, and force 
 of expression. He did not always concur with the majority 
 of his brethren in their constitutional constructions, and on 
 such occasion rarely failed to sustain his positions by the 
 strictest legal as well as logical deductions. In the interest- 
 ing case of Ware v. Hylton, 3 Dallas, 199, his dissenting 
 opinion exhibits uncommon research, learning, and ability. 
 As a legal argument it may be regarded as one of the best 
 specimens that have been preserved of the old Supreme 
 Court."^^ 
 
 "The rough substance of my argument in the suit against 
 the State of Georgia," bearing date "February 18, 1793," as 
 penned by the author, is before me. The writing is neat, the 
 "headings" carefully arranged, a few erasures — interline- 
 
 »2Page 60. 
 "/b.,p. 61. 
 
James Iredell. 39 
 
 ations — showing care and caution in the form of expression. 
 The argument covers twenty-three pages ; the paper is well 
 preserved and the writing distinct. Of this opinion Mr. 
 Justice Bradley, in Hans v. Louisiana, 134 U. S., 14 (1889), 
 said: ''The highest authority of this country was in accord 
 rather with the minority than with the majority of the Court. 
 * * * And this fact lends additional interest to the able 
 opinion of Mr. Justice Iredell on that occasion. The other 
 justices were more swayed by a close observance of the letter 
 of the Constitution, without regard to former experience and 
 usages ; and because the letter said that the judicial power 
 shall extend to controversies between a State and citizens of 
 another State, etc., they felt constrained to see in this lan- 
 guage a power to enable the individual citizen of one State, 
 or of a foreign State, to sue another State of the Union in the 
 Federal Courts. Justice Iredell, on the contrary, contended 
 that it was not the intention to create new and unheard of 
 remedies by subjecting sovereign States to action at the suit 
 of individuals (which he showed conclusively was never done 
 before), but only by proper legislation to invest the Federal 
 Courts with jurisdiction to hear and determine controversies 
 and cases between the parties designated that were properly 
 susceptible to litigation in courts. Adhering to the mere let- 
 ter, it might be so; and so in fact the Supreme Court held 
 in Chisholm v. Georgia; but looking at the subject as Hamil- 
 ton and Mr, Justice Iredell did, in the light of history and 
 experience, and the established order of things, the views of 
 the latter were clearly right, as the people of the United 
 States subsequently decided. * * * Jn view of the man- 
 ner in which that decision was received by the country, the 
 adoption of the Eleventh Amendment, the light of history 
 and the reason of the thing, we think we are at liberty to 
 prefer Justice Iredell's views in this regard." This language 
 was approved by Fuller, C. J. ; Miller, Field, Gray, Blatch- 
 
40 James Iredell. 
 
 ford, and Lamar, Associate Harlan, J., alone dissenting. It 
 is not within the purpose or scope of this sketch to enter into 
 a discussion of the merits of the great question involved in 
 this battle of the giants or of the manner in which they sus- 
 tained their conclusions. It is, however, a part of the his- 
 tory of the controversy and of the times, that two days after 
 the opinion was filed sustaining the jurisdiction, by a majority 
 of the Court, the Eleventh Amendment was introduced into 
 Congress. ''It was proposed by Mr. Sedgwick, a Repre- 
 sentative from Massachusetts, but was passed in the Senate 
 as amended by Mr. Gallatin."^* Mr. Guthrie says that Mr. 
 Caleb Strong was its author. The words are : "The judicial 
 power of the United States shall not be construed to extend 
 to any suit, in law or equity, commenced or proceeded against 
 one of the United States by citizens of another State or by 
 citizens or subjects of foreign States." It is significant that 
 the language of the Amendment is declaratory of what, in 
 the opinion of Congress, was the correct construction of the 
 Constitution. It was essentially a reversal of the decision 
 of the Court and writing into the Constitution the dissenting 
 opinion of Justice Iredell. This is evidenced by the fact 
 that notwithstanding that, in accordance with the decision 
 in Chisholm's case, judgment was rendered for the plaintiff 
 at February Term, 1794, and a writ of inquiry awarded, the 
 Court, at February Term, 1798, in HolUngsivorth v. Vir- 
 ginia, 3 Dallas, 378, upon being informed that the Eleventh 
 Amendment had been adopted, "delivered an unanimous 
 opinion that there could not be exercised any jurisdiction in 
 any case, past or future, in which a State was sued by the 
 citizens of another State, or by citizens or subjects of any 
 foreign State." Mr. William D. Guthrie says: "The un- 
 usual and peculiar wording of the Amendment first attracts 
 attention. Instead of declaring how the Constitution shall 
 
 "Watson's Const., 1535. 
 
James Iredell. 41 
 
 read in the future it declares how it shall 'not be construed,' 
 
 * * * The Amendment, therefore, does not pur])ort to 
 amend or alter the Constitution, but to maintain it unchanged 
 while controlling its scope and effect and thereby authorita- 
 tively declaring how it shall not be construed.'"^ Mr. Jus- 
 tice Bradley says : "The Supreme Court had construed the 
 judicial power as extending to such a suit, and the decision 
 was overruled. The Court so understood the effect of the 
 amendment."^*' 
 
 With that remarkable prevision which marks him as one 
 of, if not the first, prophetic statesman which the world has 
 produced, Hamilton points out the- danger and difficulty 
 Kvhich lurked in the construction given to the Constitution 
 by the majority in Chisholm's case. He says : ''To what 
 purpose would it be to authorize suits against States for the 
 debts they owed ? How could recoveries be enforced ? It is 
 evident that it could not be done without waging war against 
 the contracting State; and to ascribe to the Federal Courts, 
 by mere implication and in destruction of a preexisting right 
 of the State Governments a power which would involve such 
 a consequence, would be altogether forced and unwarrant- 
 able." This language becomes of present interest in the light 
 of the concluding words of the opinion of Mr. Justice Holmes 
 in Virginia v. West Virginia. "As this is no ordinary com- 
 mercial suit but, as we have said, a quasi-international differ- 
 ence referred to this Court in reliance upon the honor and 
 constitutional obligation of the States concerned rather than 
 ordinary remedies, we think it best, at this stage, to go no 
 further but to await the effect of a conference between the 
 parties which, whatever the outcome, must take place. 
 
 * * * But this case is one that calls for forbearance 
 upon both sides ; great States have a temper superior to that 
 
 >*"The Eleventh Amendment." — Columbia Law Review, March, 1908. 
 "Hans V. Louisiana, 134 U. S. 11. 
 
42 'James Ikedell. 
 
 of private litigants and it is to be hoped that enough has 
 been decided for patriotism, the fraternity of the Union and 
 mutual consideration to bring it to an end."^'^ Certainly 
 the history of attempts to enforce money demands against 
 States, through Federal Courts, thoroughly vindicates the 
 wisdom of Iredell's view and the apprehension expressed in 
 his concluding words: ''This opinion I hold, however, with 
 all the reserve proper for one which, according to my senti- 
 ments in the case, may be deemed, in some measure, extra- 
 judicial. With regard to the policy of maintaining such 
 suits, is not for this Court to consider, unless the point in 
 all other respects was very doubtful. Policy then might be 
 argued from with a view to preponderate the judgment. 
 Upon the question before us I have no doubt. I have, there- 
 fore, nothing to do with the policy, but I confess, if I was 
 at liberty to sjDeak on that subject, my opinion on the policy 
 of the case would also differ from that of the Attorney Gen- 
 eral. It is, however, a delicate topic. I pray to God that if 
 the Attorney General's doctrine as to the law be established 
 by the judgment of this Court, all the good he predicts of it 
 may take place and none of the evils with which, I have the 
 concern to say, it appears to me to be pregiiant." In South 
 Dakota V. North Carolina/^ the question, as there presented, 
 was discussed and decided against the contention of the State 
 by a divided Court of five to four. The present Chief Justice 
 wrote a strong and well sustained dissenting opinion, con- 
 curred in by Chief Justice Fuller, Justices McKenna and 
 Day. The decree there was, however, confined to a statu- 
 tory mortgage upon specific property. The question whether 
 judgment for a deficiency would be entered was expressly 
 reserved. The case was settled by compromise. 
 
 The Court has refused to take jurisdiction in a number of 
 
 I'Virginia v. West Virginia, 220 U. S., 35. 
 18192 U. S., 286. 
 
 I 
 
James Ieedell. 43 
 
 cases where the attempt was made to avoid the provisions of 
 the Amendment.^'' 
 
 In Penhallow v. Doaiie,'*^ Judge Iredell wrote an inter- 
 esting opinion in which he discussed the relation which each 
 of the original colonies bore to each other prior to the forma- 
 tion of the Confederation and the power conferred on the 
 Confederation to establish Courts of Admiralty, and the effect 
 of the judgments of such courts in prize cases. It is not prac- 
 ticable to make extracts from this opinion, but the following 
 is of especial and permanent interest : "By a State forming 
 a republic I do not mean the Legislature of the State, the 
 executive of the State, or the judiciary, but all the citizens 
 which compose that State and are, if I may so express my- 
 self, integral parts of it. * * * In a republic all the 
 citizens, as such, are equal, and no citizen can rightfully ex- 
 ercise any authority over another, but in virtue of a power 
 constitutionally given by the whole community which forms 
 such body politic." 
 
 In Talbot v. Jansen,-^ an interesting question was pre- 
 sented in regard to the right of expatriation and how it was 
 accomplished. Iredell wrote an opinion in which he discussed 
 the law of nations, etc. Upon the right of expatriation and 
 the limitations upon its exercise the opinion is interesting 
 and enlightening. 
 
 In the case of Hylton v. The United States/- involving 
 the question whether a tax on carriages was a direct tax, 
 Iredell wrote a carefully guarded opinion concurring with 
 the other Justices that the tax in question was not a direct 
 tax within the meaning of the Constitution, He says: "There 
 is no necessity or propriety in determining what is, or is not, 
 a direct or indirect tax, in all cases. Some difficulties may 
 arise which we do not at present foresee." His caution has 
 
 "Hans V. Louisiana, supra. Christian v. A. & N. C. R. R. Co., 123 U. S., 233; Murray 
 V. Distilling Co., 213 U. S., 151. 
 2»3 Dallas, 54. 
 "3 Dallas 133. 
 223 Dallas, 171. 
 
44 'James Iredell. 
 
 been justified by the history of the attempt to settle this 
 much vexed question. Alexander Hamilton appeared for the 
 Government. Iredell writes to Mrs. Iredell: "The day be- 
 fore yesterday Mr. Hamilton spoke in our court, attended 
 by the most crov^ded audience I ever saw there, both Houses 
 of Congress being almost deserted on the occasion. Though 
 he was in very ill health he spoke with astonishing ability 
 and in a most pleasing manner, and was listened to with the 
 profoundest attention. His speech lasted three hours. 
 * * * In one part of it he affected me extremely. Hav- 
 ing occasion to observe how proper a subject it was for tax- 
 ation, since it was a mere article of luxury which a man 
 might either use or not as it was convenient to him, he added : 
 'It so happens that I once had a carriage myself and found 
 it convenient to dispense with it.' " 
 
 At the Spring Term, 1793, of the Circuit Court at Rich- 
 mond, before Jay, Iredell, and District Judge Grifiin, the 
 celebrated case of Ware v. Hylton was heard. During the 
 war the Legislature of Virginia passed an act confiscating 
 the debts of British subjects and directing the payment of 
 such debts to the loan office of the State. The defendant, 
 who was indebted to the plaintiff, a British subject, had, in 
 obedience to the statute, made a partial payment thereon. 
 Suit was brought on the bond. The defendants were repre- 
 sented by Patrick Henry, Marshall, Inis and Campbell. Ire- 
 dell writes to Mrs. Iredell from Richmond, May 27th: "We 
 began on the gTeat British cases the second day of the court, 
 and are now in the midst of them. The gi'eat Patrick Henry 
 is to speak today. I never was more agreeably disaj)pointed 
 than in my acquaintance with him. I have been much in 
 his company and his manners are very pleasing, and his 
 mind, I am persuaded, highly liberal. It is a strong addi- 
 tional reason I have, added to many others, to hold in high 
 detestation violent party prejudice." 
 
James Iredell. 45 
 
 The discussion was one of the most brilliant exhibitions 
 ever witnessed at the bar of Virginia. Mr. Henry spoke for 
 three consecutive days. The case was argued upon appeal 
 at the February Term, 1796, of the Supreme Court," Ire- 
 dell wrote an opinion concurring with the majority of the 
 Court that the Treaty of Peace enabled the creditor to sue 
 for the debt, but was of the opinion (dissenting) that the re- 
 covery should be confined to the amount that had not been 
 paid into the loan office. He said: "In delivering my opin- 
 ion in this important case I feel myself deeply affected by 
 the awful position in which I stand. The uncommon magni- 
 tude of the subject, its novelty, the high expectation it has 
 excited, and the consequences with which a decision may be 
 attended, have all impressed me with their fullest force." 
 Referring to the argument, he said: "The cause has been 
 spoken to, at the bar, with a degree of ability equal to any 
 occasion. However painfully I may at any time reflect on 
 the inadequacy of my own talents I shall, as long as I live, 
 remember, with pleasure and respect, the arguments which 
 I have heard in this case. They have discovered an in- 
 genuity, a depth of investigation and a power of reasoning 
 fully equal to anything I have ever witnessed, and some of 
 them have been adorned with a splendor of eloquence sur- 
 passing what I have ever felt before. Fatigue has given 
 way under its influence and the heart has been warmed 
 while the understanding has been instructed." The opinion 
 is exhaustive in learning. A competent judge has written 
 that "as a legal argument it may be regarded as one of the 
 best specimens that have been preserved of the old Supreme 
 Court."'* 
 
 Chief Justice Jay having resigned, and the Senate having 
 refused to confirm the nomination of Judge Rutledge, there 
 
 233 Dallas, 199. 
 
 s^Van Santvoord, Lives of the Chief Justices. 
 
46 James Iredell. 
 
 was much speculation as to who would be appointed. Gov- 
 ernor Johnston wrote Iredell : ''I am sorry that Mr. Gush- 
 ing refused the office of Chief Justice, as I don't know 
 whether a less exceptionable character can be obtained with- 
 out passing over Mr. Wilson, which would perhaps be a 
 measure that could not be easily reconciled to strict neu- 
 trality." Iredell writes Mrs. Iredell a few days after: "Mr. 
 Ellsworth is nominated our Chief Justice, in consequence 
 of which I think that Wilson will resign. * * * The 
 kind expectation of my friends that I might be appointed 
 Chief Justice were too flattering. Whatever other chance 
 I might have had there could have been no propriety in 
 passing by Judge Wilson to come at me." 
 
 Iredell rode the Middle Circuit during the spring of 1796. 
 His charge at Philadelphia was published at the request of 
 the grand jury. At the August Term, 1798, in the case of 
 Calder v. Bull, '^ Iredell set forth very clearly his view re- 
 specting the power of the judiciary to declare invalid acts 
 of the Legislature passed in violation of constitutional limi- 
 tations. He says : "In a government composed of legisla- 
 tive, executive and judicial departments, established by a 
 Constitution which imposed no limits on the legislative power, 
 the consequence would inevitably be that whatever the Legis- 
 lature chose to enact would be lawfully enacted, and the 
 judicial power could never interpose to pronounce it void. 
 It is true that some speculative jurists have held that a legis- 
 lative act against natural justice must, in itself, be void ; 
 but I can not think that under such a government any court 
 of justice would possess the power to declare it so. * * * 
 It has been the policy of all the American States, which 
 have individually framed their State Constitutions since 
 the Revolution, and of the people of the United States, when 
 they framed the Federal Constitution, to define with pre- 
 
 M3 Dallas, 386. 
 
James Iredell. 47 
 
 cision the objects of the legislative power and to restrain its 
 exercise within marked and settled boundaries. If any act 
 of Congress, or of the Legislature of a State, violates those 
 Constitutional provisions, it is unquestionably void ; though 
 I admit that as the authority to declare it void is of a deli- 
 cate and awful nature, the Court will never resort to that 
 authority but in a clear and urgent case. If, on the other 
 hand, the Legislatures of the Union shall pass a law within 
 the general scope of their Constitutional power, the Court 
 can not pronounce it to be void merely because it is, in their 
 judgment, contrary to the principles of natural justice. The 
 ideas of natural justice are regulated by no fixed standard; 
 the ablest and the purest men have differed on the subject, 
 and all that the Court could properly say in such an event 
 would be that the Legislature had passed an act which, in 
 the opinion of the Judges, was inconsistent with the princi- 
 ples of natural justice." It is doubtful whether this princi- 
 ple, peculiar to American Constitutional law, with its limi- 
 tations, has been more accurately stated. 
 
 Judge Iredell rode the Eastern Circuit with Judge Wil- 
 son. He was much pleased with the people of New Eng- 
 land, receiving many courtesies from them. He writes from 
 Boston that he soon found himself "engaged for every day 
 in the week — sometimes different invitations on the same 
 day. Judge Lowell has been particularly kind to me." His 
 charge to the grand jury at Boston was published hj request 
 and referred to by the editor of the paper as "uniting elo- 
 quence with exhaustive knowledge and liberality." From 
 Boston he writes: "I have constantly received distinction 
 and courtesy here, and like Boston more and more. * * * 
 It is scarcely possible to meet with a gentleman who is not 
 a man of education. Such are the advantages of schools 
 of public authority; every township is obliged to maintain 
 one or more to which poor children can have access without 
 
48 James Iredell. 
 
 any pay." He writes from Exeter, New Hampshire: ''I 
 met in Boston with a gentleman who lives in Newbury Port 
 of the name of Parsons, who appears to me to be the first 
 lawyer I have met with in America, and is a remarkably 
 agreeable man." This was Theophilus Parsons, later Chief 
 Justice of Massachusetts. He writes that he had dined with 
 the Committee and Corporation of Harvard College, "being 
 seated next to the Lieutenant Governor, the famous Samuel 
 Adams, who, though an old man, has a great deal of fire 
 yet. He is polite and agreeable." 
 
 On May 27, 1797, Judge Iredell delivered a charge to the 
 grand jury in Richmond, Virginia, which was "animated, 
 perhaps too warm." At that time the grand jury frequently 
 made presentment of matters which they regarded as worthy 
 of public attention, although not the subject of criminal 
 prosecution. They presented "as a real evil the circular 
 letters of several members of the last Congi'ess, and par- 
 ticularly letters with the signature of Samuel J. Cabell, 
 endeavoring, at a time of real public danger, to disseminate 
 unfounded calumnies against the happy Government of the 
 United States, thereby to separate the people therefrom and 
 to increase or produce a foreign influence ruinous to the 
 peace, happiness and independence of these United States." 
 Mr. Cabell made an angry retort, attacking the jury, judge 
 and the Supreme Court. He proposed to bring the matter 
 before Congress as a breach of privilege. Mr. Jefferson 
 urged Mr. Monroe to call it to the attention of the Legisla- 
 ture. Just what they proposed to do with the jury or the 
 judge does not very clearly appear. Judge Iredell published 
 a card in which he said that the charge was prepared before 
 he reached Richmond and had been delivered in Pennsyl- 
 vania and Maryland; that he was not acquainted with Mr. 
 Cabell and knew nothing of the letters referred to by the 
 grand jury. He concludes: "With regard to the illiberal 
 
James Iredell. 49 
 
 epithets Mr. Cabell has bestowed not only upon me, but on 
 the other Judges of the Supreme Court, I leave him in full 
 possession of all the credit he can derive from the use of 
 them. I defy him, or any other man, to show that, in the 
 exercise of my judicial character, I have ever been influenced 
 in the slightest degree by any man, either in or out of office, 
 and I assure him that I shall be as little influenced by this 
 new mode of attack by a member of Congress as I can be 
 by any other." The political feeling in the country, and 
 especially in Virginia, was at that time very bitter. Gov- 
 ernor Johnston, Judge Iredell's brother-in-law, and always 
 his wise friend, writing him in regard to this incident, said: 
 "The answer was very proper, if proper to give it any answer 
 at all." He further said that which every Judge knows from 
 experience to be true : ''I am sensible of the difficulties with 
 which a man of warm feelings and conscious integrity sub- 
 mits to bear, without a reply, unmerited censure ; yet I am 
 not certain but that it is more suitable to the dignity of one 
 placed in high and respectable departments of State to con- 
 sider himself bound to answer only when called upon con- 
 stitutionally before a proper tribunal." 
 
 Iredell rode the Southern Circuit during the spring of 
 
 1798, suifering much fatigue and discomfort. Judge Wil- 
 son, having suffered financial reverses, sought the hospitality 
 of Governor Johnston and Judge Iredell, and found in them 
 sympathetic friends. His health failed rapidly, resulting 
 in his death August 21, 1798. He was buried at Hayes, the 
 home of Governor Johnston. His remains were removed to 
 Philadelphia a short time since. At the February Term, 
 
 1799, of the Supreme Court, Iredell sat for the last time. 
 He filed "one of his best and most carefully written opin- 
 ions" concurring with the conclusion reached by the other 
 Judges in 8ims v. Irvine.^^ He held the Circuit Court at. 
 
 2«3 Dallas, 425. 
 
 4 
 
50 James Ieedbll. 
 
 Philadelphia, at which term several of the insurgents were 
 on trial for treason. In his last charge to the grand jury 
 he dwelt at much length on the law of treason and the Alien 
 and Sedition laws. It is manifest that Iredell, as were 
 many others, was deeply impressed with the belief that 
 French philosophy and infidelity, coupled with the revolu- 
 tionary proceedings in that country, were making an impres- 
 sion upon the people of this country, finding defenders among 
 leaders of public sentiment, seriously threatening the peace 
 of the country and the dissolution of the Union. He was a 
 Federalist and joined with the members of that party in 
 their reverence for Washington. He disliked and distrusted 
 the French leaders and their principles. His charge was 
 filled with warning against the influence of principles and 
 conduct which, in his opinion, were involving the American 
 peo]3le in the French Revolution, and the disturbed relations 
 of that country with England. His concluding words in 
 his last charge to a grand jury are interesting and illustrative 
 of the condition of his mind. He says : "If you suffer this 
 government to be destroyed what chance have you for any 
 other ? A scene of the most dreadful confusion must ensue. 
 Anarchy will ride triumphant, and all lovers of order, de- 
 cency, truth and justice be trampled under foot. May that 
 God, whose peculiar province seems often to have interposed 
 to save these United States from destruction, preserve us 
 from this worst of all evils, and may the inhabitants of this 
 happy country deserve His care and protection by a conduct 
 best calculated to obtain them." The grand jury, requesting 
 the publication of the charge, say: "At a time like the 
 present, when false philosophy and wicked principles are 
 spreading with rapidity under the imposing garb of liberty 
 over the fairest country of the old world, we are convinced 
 that the publication of a charge fraught with such clear and 
 just observations on the nature and operation of the Con- 
 
James Iredell. 51 
 
 stitution and laws of the United States will be highly bene- 
 ficial to the citizens thereof." As an illustration of the con- 
 dition of public sentiment, Governor Johnston writes Ire- 
 dell who, having concluded the trials in Philadelphia had 
 come to Richmond, "I am glad that you have got away from 
 the land of treason to the land of sedition; the change is 
 something for the better." Chief Justice Ellsworth, riding 
 the Southern Circuit, writes Iredell from Raleigh, IST. C, 
 June 10, 1799 : "My opinion, collected from some gentle- 
 men who have been lately traveling in that State (Virginia), 
 and others who were at the Petersburg races, presents a 
 melancholy picture of that country. These gentlemen re- 
 turned with a firm conviction that the leaders there were de- 
 termined upon the overthrow of the general government. 
 * * * That the submission and assistance of I^orth Caro- 
 lina was counted on as a matter of course." The Chief Jus- 
 tice, however, adds : "As it was shortly after the election 
 these may have been the momentary effusions of disappointed 
 ambition." 
 
 Thirty years of constant and wearing work, coupled with 
 the climate in which he lived and the long journeys on the 
 Southern Circuit, which he rode four times in five years, had 
 impaired Judge Iredell's health. He was unable to attend 
 the August Term, 1799, of the Court. His illness increased 
 until, on October 20, 1799, at his home in Edenton, he passed 
 away, in the forty-ninth year of his age. His friend, the 
 Rt. Rev. Charles Pettigrew, testified of him: "In the run 
 of the above twenty years I have often heard high encomiums 
 on the merits of this great and good man ; but never in a 
 single instance have I heard his character traduced or his 
 integrity called in question." 
 
 His biographer, from whose excellent work I have largely 
 drawn in the preparation of this sketch, says that with Judge 
 Iredell's papers is an original "Treatise on Evidence," "an 
 
52 James Iredell. 
 
 * * * Essay on the Law of Pleading," and one on the 
 "Doctrine of the Laws of England concerning Real Prop- 
 erty so far as it is in use or force in the State of ISTorth Caro- 
 lina" ; the two last unfinished. 
 
 When it is remembered that he came to America at seven- 
 teen years of age, with neither wealth nor family influence; 
 that his opportunities and sources of study were limited by 
 the condition of the country; that for seven of the thirty 
 years of his life here the country was engaged in war, we 
 can, in some degree, appreciate the immense labor which he 
 performed and the results which he accomplished. His life 
 is a tribute to the teaching and example of his parents, the 
 influence of those with whom he was brought into association 
 in his adopted home, his industry, talents, patriotism, and 
 lofty principles of honor and integrity. 
 
 Judge Iredell left one son, bearing his name, who became 
 a lawyer of learning and distinction. Judge of the Superior 
 Court, Governor, and United States Senator. He was, for 
 many years. Reporter of the Supreme Court of the State 
 and author of an excellent work on "The Law of Executors." 
 He died during the year of 1853. His descendants are among 
 the most honorable, useful and patriotic citizens of the State. 
 
 It has been the purpose of this sketch to set forth, in the 
 space which could be allotted, a short survey of the judicial 
 work of Judge Iredell. His early death cut short a career 
 on the bench full of promise of enlarging scope and useful- 
 ness. That he would have continued to develop his high 
 judicial qualities and, if permitted, shared with the "Great 
 Chief Justice" the work of laying deep and strong the founda- 
 tions of American Constitutional law can not be doubted. 
 His opinions upon Constitutional questions evince a very 
 high order of judicial statesmanship. 
 
 84 
 
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