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YALE UNIVERSITY
LIBRARY

YALE UNIVERSITY
LIBRARY

I'rc5ciiicd li)- thu ,\ut(i(jr

JAMES IREDELL
1751-1799
LAWYER, STATESMAN, JUDGE

BY
H. G. CONNOR
Judilo Uiiltod Statoi Court
Baitorn Dlitriol of North Carolln*

JAMES IREDELL

1751-1799

Lawyer, Statesman, Judge

BY
H, G, CONNOR
Judge United Slates Court, Bostern District
of North Carolina

Reprinted From the
North Carolina Booklet
April. 1912

Raleigh
Edwards & Bboughton Printing Co.
1912

JAMES IREDELL
1751-1799'

Br H. G. CONNOR,
Judge United States Court, Eastern District North Carolina.

"The character of this excellent man has heen too little known.
Similar has been the fate of many other vaJ.uable 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, Frr.ncis Iredell, a
merchant of Bristol, married Margaret ]\[cCulloch, The
fanuly were allied by blood to Sir George Macartney, the
Earl of Wigton, the Ferg-usons, McCullochs, and, by mar
riage, to Governor Lyttleton, Henry McCulloch was con-
riccted 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, "Thc office is genteel requiring little or no
J u ty, 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
liis new home, bringing with him his commission, and letters
of introduction from friends in England, to several gentle-

iThe writer has, for his information relied largely upon Mcilee's "Life and Corres
pondence of James Iredell." Except as otherwise indicated herein, quotations given ore
tukcn irom it.

¦i JamKK IliEUELL.
inon iu Edenton, arriving at tlio lottcr place ''near tlic clo.so
of tlio yciir 170S." Ilis biogrn])lior Bays of him: "ITo wns
tbciu just .¦4ovonl(>on yourw old, lit tlio iigo wlicn pUniHUi'cH iiro
enjoyed with the keenest rcliah. Frank, ingenuone, of pleas
ing a])iiciirniice, winning ninnners, and educated in tlio liest
schools of J'jighuul, he was kindly rticeived and warmly wel-
coincil." Tho ancient borough of Edenton is situated on the uorlh-
cru slioro of Albctnarlo Sound. It wns founded in 1710, and
nnnied iu honor of Edeu, tlio lioyal Governor. .Mr. iMcKeo
snys of the people to whom tho young Coiujitroller caiiio and
among whom ho resided during tho remainder of his life:
"If lliero wns little of the piinidc! and pomp of older coiii-
munitios, if many of tho appliances of luxury wore wanting,
ease and abundance were the reward of but a slight degree
of frugality and industry; tho homes of tho planters wore
comfortable and ample for all tho purposes of hospitality;
while their tables groaned beneath dainties beyond tho rcacli
of wealth on the oilier side of tho Athuilie. '''•' * * lie
who supposes tho inhabitants wero untutored people is grossly
deceived. They were not rcfngccs from tho justice of tho
old world; nor were they of desperate fortunes or undisci
plined minds — they were equal in cultivation, ability and pa
triotism to liny of their eontompornries. Tiio men wero bold,
frank, generous and intelligent; tiio females lender, kind and
polite." Tho town contained about five hundred inhabitants.
Of the residents of tho town were Samuel Johnston, among
the earliest, most enthusiastic and active Whigs, President of
tho Provincial CongTcss, Governor, and, upon the adoption
of the Federal Constitution, the first United States Senator
elected from thc State, a lawyer of lonrniug, a man of deep
and e.Nteneivo vending and singular ]mrily of life spent in
patriotic service to tlio State; .To,sc])li llewes^ signer of tho
Dcehiralion ; Thomas Darker, Tboiniis .Jones, Jasper Cluirl-

James Ikedell, 5
ton, Stephen Cabarrus, Robert Smith, Charles Johnston,
John Johnston, and Sir ISTathaniel 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 Congi-esses 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, aud
M'ork 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 ray 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;

0 James Iredell.
and iudolcneo is on effectual bar to improvement. * * *
I have not done as much as I ought to hove done; read a
little in l.ytlleton's Tenures and Ktopjied iu llio middle of
his Chn])ter on lii'iils; whereas I onght to have gone through
it. It would have been better than bwing three or four games
lit billiiiriN. .\'. JJ. — If you do jiliiy hilliiirds niiiko it a niJo
not to lengthen,''
^Ve leiiru from his journal that, while studying Lyltletou,
he did not neglect polite lilenitnrc. lie siiys: "I have been
reading a volume of tlie Spectator, which is over new, ever
instructive, ever interesting. I hojie 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
tho most amiable pattern of human life, appears through the
whole, in so conspicuous a manner as at once to improve and
delight. * * ¦•'¦ IJcsumed my Spectator; read a great
manj' entertaining aud improving things, particularly Mr.
Addison's Discourses on Fame, in tho fourth volume, which
are incomparably elegant aud sublime. Surely tho writings
of such great, learned and good men are moro than a counter
poise to the libertine writings of professed Deists, who.«c im
moral ]i\'C's nuule tliem dread an encounter liei'eafter." Tie
continues this traiu of reflection regarding thc infidelity so
prevalent at that time, concluding with words, which are of
special interest, giving exiiression to a principle which con
trolled his private and public conduct throughout his life :
"At a time when licentiousness is at au amazing and danger
ous height we shall be careful to guard against popular preju
dice, though we must not blindly oppose tho public voice
because it may appear too tumultuous. Let us do things im
partially aud not oppose or condemn any conduct on tho
whole, on account of a few improper circumstances attend
ing it."

Jaiies Ikedeli.. 7
His journal shows that he was a diligent student of the
"Tenures." On July 31, 1771, he writes his father, "I am
too ofton 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
procuro Dr. Blackstone's Commentaries on tho 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 wo
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 thc Tatlcrs and Guardians — the Spectators I have,
and these, with the others, Avill 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 177G he was one of a committee to revise tho statutes
of the State." He was later one of tho Stato Judges. Mr,
Iredell received from Governor Tryon a license to practice
law in all thc Inferior Courts of the Province on December
14, 1770. He was licensed by Governor ]\[artin to practice
in the Superior Courts November 26th, 1771, and duly
qualified at the April Term, 1772, During the intervening
year, "with healthy but vehement ambition," ho prosecuted

8 James Ii!edell.
his studies and regvdarly attended tho courts. "Books ho had
not, save a volume or two stuffed into his saddlo-bag with a
scanty supply of apparel. * * * Iredell early fixed his
eyes upon the glittering heights of his profession, and so
self-as.sured was he of his capacity and industry that he never
faltered in his purpose — he was resolute to win; and with
auch 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 beforo his imaginary court
and reported 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 tho careful and orderly statement of
tho 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 Avork had been published but a few years
before and was widely rend 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 Blaekstone." "Employed myself
all the rest of the evening reading Blaekstone." "I imme
diately came home and finished the second volume of Black-
stone." The journal, during this vear, lea\'es tho reader in doubt
whether he was most assiduous in his devotions to !AIiss Han
nah Johnston or the great commentator. That he wooed
both successfully is evidenced by the fact that ou January
IS, 1773, he Avas united in marriage to this estimable lady,
who "supplemented Avhnt he needed. * * * gi,g .^^,gj
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 Saniuel
Joliii.ston, 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 Avas given to religious contemplation and
often Avrotc "reflections" upon religious subjects quite re
markable for so young a man. Within a year after coming
to Edenton he Avrites his Sunday "thoughts," concluding: "I
am not ashamed to think seriously of religion, and hope no
example Avill induce me to treat it Avith indifference. Youth
is as much concerned to practice and revere it as any in the
more advanced stages of life, and I have draAvn up the fore
going plain, but useful, remarks as thinking it the best Avay
of employing my time when I have had no opportunity of
attending public Avorship." Writing his brother, he says:
"Let me desire you to let no flashes of Avit, or impertinent
raillery of religion, shock your principles or stagger your
belief. Men of this cast laugh at religion, either because
they knoAv 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 controA-ersics between the Royal GoA^ernors and the
people in jSTorth Carolina began at an early day. They con
tinued to groAV 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 Avith
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 Avere destined to cheer and sustain the peo-

10 James Ieedeli,.
pie in the hour of disaster. Ere long he began Avith them an
active correspondence, and his part Avas so Avell supported
that a learned gentleman and most competent judge Avritos-,
'lie Avas the letter writer of tho Avar. He had no equal
amongst his contemporaries.' "
As early as September, 1770, ho published his first politi
cal essay, saying, among other things: "I have always been
taught, and till I am bettor informed must continue to be
lieve, that the Constitution of this country is founded on the
Provincial Charter, Avhieh may Avell be considered the
original contract between the King and tho inhabitants."
"In 1774 the Eovolutiou Avas fairly inaugurated in Xorth
Carolina. Xowhero Avore the points in dispute between the
colonics and Great Britain more clearly stated or moro ably
nrgue<l. Tlie people were generally agreed. * * * Jt
is true thiit none meditiited ind<'])('ndenco as an object of
desire; but it was foreseen ns a possible consequence. The
eoutesl, tliiit Aviis .Kiioii to be develojied into flagrant war, wns
eminently, in Nortli Cnroliun, based upon prineiiile. The
Whig leaders, ready with the pen and tho columns of the
newspapers and tho pamphlets, discussed the tnx on ten and
thc vindictive inensuves that fidlowed the ]u'onipt opposition
of J!n.«ton, wilh a degree of learning and logic Hint was not
sur])ii.-ised hy any of their confeinporarieH in other provinces.
* •" * There was no arrny of clnss ngninst class. Tho
foremost in Inleiit were foremost in nil mensnres; they had
tho Cdiifldonce of the peo])le. I'lie followers of such men as
Ifnrvey, Johnston, .Aslic, Unrnell, IToopcr, and Caswell conld
not be olherwiso ihnn well inforiiie<l. * * * Inthoiiniet
relrent of his study, wilh naught lo Htinnihile but the proni])!-
ings of his own hrinc;! heart and, perchance, the smile of ilis
noble wife, Avith patient toil Iredell forged and polished the
Aveapons of debate; if others fixed his mark ho recked not
Avho claimed the honor of the cast."

James Ibedell. 11
Mr, Iredell, at this tim.e, began a correspondence Avith
William Hooper, in Avhich they discussed the questions en
gaging the attention of thoughtful men. On April 26, 1774,
Hooper Avrites him: "Every man Avho thinks with candor
is indebted to you for the share you have taken in this in
teresting controversy, * * * You have discussed dry
truths Avith the most pleasing language, and have not parted
Avith the most refined delicacy of manners in the Avarmth 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 Avho has Avisdom to distinguish and too
much virtue to flatter. * * * Whilst I was active in
contest you forged the Aveapons Avhich were to give success
to the cause Avhich I supported. * * * With you I
anticipate the important share which the colonies must soon
haA-e in regiilating the political balance. They are striding
fast to independence, and ere long Avill build au empire upon
the ruin of Great Britain ; Avill adopt its Constitution, purged
of its impurities, aud, from an experience of its defects, will
guard against those evils Avhich haA'e wasted its vigor and
brought it to an untimely end."
The first Provincial Congi-css "called by the people them
selves" — defying the threats of the Royal Governor — met in
XeAV Bern August 25, 1774. Iredell's friends, Johnston,
HcAA'es, Thomas Jones, and Hooper, Avere conspicuous mem
bers. John Harvey Avas "Moderator." The first of Iredell's
political efforts, Avhich have been preserved, Avas 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 gi^'es 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 bis accounts and closed his

12 James Ikedell.
career as Collector, to Avhich position he had boon promoted.
After tho 4th of July, 1776, ho became deeply interested in
the piroposed fomi of government to be adopted by the now
Stato. IIo had attended the courts, Avhen open, and had
given diligent attention to the practice of his profession.
After the adoption of the Constitution (November, 1776)
and tho inauguration of a State Government a judicial sys
tem was established — "Iredell drawing the first Court LaAV."
At tho session of the Assembly, November, 1777, tho Stato
Avas laid off into three judicial districts; Samuel Ashe,
Samuel Spencer, and James Ii'odell Avero appointed judges.
Ilis appointment Avas brought about by William Hooper,
wlni wrilcs Deeenibei' 2','i, 1777: "lieforo this reaches you
ymi \y\\\ lun'e r  i\('d llie iiiforiiialion of being |)roniotoil
to the first lioiiors ihe Slate can bestow. * * '"¦ ^'oii will
bo III n bisH to conjeciui'o liow I conld have been iiccesMory to
this step iifler you lind been ho c.Nplicit lo niij mi the siihjcci.
l!o iishiired thiiL I wns not Inntleiilive lo your objeelions, nor
did 1 full lo meiilion llieiii and urge tliem wilh sincerily lo
every person Avbo ineiitioiicd you for the ollice to which you
nro now designaled. ¦"' * * I e.x])ostulated with tliem
\\\nm the impropriety of electing one Avlio in all jn'obnbilily
might decline, nnd Icavo one of tho seats of jiislice vacant.
¦X- -y- '/.¦ 'piioj,. ].,.nsi)niiig ju'cvailed and you hiu'o now the
salisfnction of an unrestricted (dioice. Tho appointiniuit has
beeu imposed u]ioii you, and thereforo you arc at jierfeet lib
erty to iicl or uol," Arcliihiild i\fiiclniiici wrote; "I can only
sny llinl if il would answer your juirposes ns fully mm il would
ph'iiso your friends and the jniblic, it would give me real
siilisfnelion," When il is re  mberiMl tlinl al Ibis lime Ire
dell was hut Iwenly-soven years old ; that only ten yenr.s prior
thereto he had coiiio to the Sinto ii youth of soventci'ii, un
known, without Aveiillh or other inlluenccs, ids oloetimi, un
sought and against his inclination, to the highest judicial

James Ieedell, 13
position in the State, it is manifest that by his personal con
duct and charactb-r, as well as his learning and ability, he
had strongly and faA'orably impressed himself upon the peo
ple and their representative men. William Hooper Avas a
laAvyer of learning and experience, as Avere other members of
the Assembly, Maclaine, also an eminent lawyer and mem
ber of the Assembly, thus expressed the opinion of his as
sociates : "HoAveA'er 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 themseU'es and
their constituents. As to myself, I confess I Avas actuated
by duty to the public, having been taught that your promo
tion Avould more effectually serve them than you," Iredell
accepted the judgeship at much personal sacrifice. The sal
ary Avas 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 ahvays 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, * * * I 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

tState Records of N. C, XXII, 562.

14 JaIMKS luEUEf.L.
cxpericneos of ti judge "on circuit" at that early period in
our liislory. 1 Ie went as fnr west as Salisbury. At tho bxlon-
lon term, Juno 0, 1778, tho grand jury requested that ho
furnish his charge for publication, saying: "This charge
vindicates thc American States, in tho establishment of inde
pendency, by arguments drawn from undeniable rights and
from real necessity, and grounded on iiieoiitcstablo facts.
* * * It breathes a spirit of inire disinterested patriot
ism, and holds forth the most powerful incentive to persist
in the ojipositioii Avliich America has so successfully begun.
It jioints out persuasively tho importaneo of a faithful ob-
serviilion of tlio various political and relnlive duties of se
curity upiin whiidi tho hnppiiiess of individuals and of tho
wliole de]iends, nnd which will lend to give Hinbilily lo our
])reseiit Coiislilulion."
'.I'he hingiinge of the idinrgo is spirited, tho senlimeut pa
triotic, wilh considerable wormlli of expression towards the
King and his ministers. A foAV extracts Avill 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 Avbich Ave have shared Avith our brethren
on tho Continent; others Avere peculiar to ourselves. The
event, however, has been unhappy and distressing, and OA'cry
Avellwi^ber to his country must view with pleasure a scene
of anarchy changed to that of law and order, nnd powers of
government established capable of restraining dishonesty nnd
vice. Such poAvcrs have been established under circumstances
Avliich should induce to them peculiar reverence and regard.
They have not been tho 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 ;
thoy have been peaceably established by tho public at large.

James Ikedell. 15
for the general happiness of the people, Avhen 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. * * * We
desired only the priA'ilegcs of a free people, such as our an
cestors had been and such as they expected Ave should be.
We kncAv it Avas absurd to pretend Ave should be free Avhcn
laAvs might, at pleasure, be imposed upon us by another peo
ple. * * * Our ancestors came hero to enjoy the bless
ings of liberty. Thoy purchased it at an immense price.
Their greatest glory Avas that they had obtained it for them
selves and transmitted it to their posterity. God forbid that
their posterity should be base or Avcak enough to resign it,
or let it appear that the true British spirit, Avhicli has done
such Avonders iu England, has been lost or Aveakcned by
being transplanted to America. * * * You Avill, I hope,
excuse, gentlemen, the particular, perhaps too great particu
larity, Avith Avhich I haA'e gone into this subject. Yet I
thought it my duty to point out to you some of the principles
upon Avhich tho revolution in our goA'crnment has taken place
and Avhich, in my opinion, prove not only the propriety of
its being effected, but the indispensable obligation wo are
under to maintain and support it. * * * Tho struggles
of a great people haA^e almost ahvays ended in tho establish
ment of liberty. The enjoyment of it is an object worthy of
tho most vigilant application and tho most painfid sacrifices.
Is tlioro anything avo road Avith moro pleasure than tho suffer
ings and contentions of a brave people who resist oppression
with firmness, are faithful to the interests of their country
and disdain eA'ery 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 jAXtES Ihedell.
ful discharge of that groat and honorable duty, fidelity to
our country."
Eeferring to the burdens laid upon tho colonists and
their right to resist them, he says: "We knoAV of no right
thoy could have to such a power. Our charters did not
recognize it. It certainly Avas not in our ancestors' con
templation, Avho left that very country because freedom could
not be enjoyed in it. Custom had given it no sanction.
* * * It Avas reconcilable to no principles of justice.
* * * We despised tho miserable application of a few
political maxims * * * Avhich to this hour is the basis
upon Avhich all the fraud, iniquity, injustice, cruelty and op
pression that America has experienced from Great Britain
have been defended. * * * The divino right of kings
Avas exploded with indignation in tho last century. Men
came at length to be persuaded that they Avere 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 Avas done in England,
the seat of our haughty enemies, Avho 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 Avhon
the American cause Avas far from hopeful, tho courage ex
hibited was of no low order. Iredell, too, Avas a conserva
tive — but Avithal a man and a patriot.
Soon thereafter ho sent his resignation to the Governor,
who accepted it with much reluctance, saying, "as you can
Avell conceive, Avell knoAving your place can not bo supplied
by a gentleman of equal ability and inclination to servo tho
Stato." IIo continued thc practice of tho law until, on July
8, 1779, ho was tendered and accepted the positiou of At
torney General. Hooper Avrites, expressing pleasure that he
has consented to accept, saying: "I have the happiness to
assure you that the loading characters in this part of the

Ja:\i.e.s Ihedell, 17
country [Capo I'car] sjioiik of you as a capital acquisition
to our courts, and exult that there is a prospect of offenders
being brought to due punishment without thc pa.ssions of
party or tho iirojudicc of individuals swaying the prosecu
tion," Iredell traveled tlie circuit, attending the courts in
the discharge of his duties and receiving a large share of civil
business. His letters to j\rrs. Iredell give an interesting and
often amusing account of his experiences. From Xcav Bern
he writes: ''Expenses are enormous. My last jaunt has
cost mc $000 on the road and the depreciation Avill certainly
lu'ocood 11 ost rii])i(]]y, for tiny are giving nAvay tlic iiiouey
at the ]iriiitiiig odiec in so jniblic and careless a manner as
to make it quite coiiteiii]dilile." Again be writes: "There
has not been much business, but I have been ajiplicd to in
ahiio.'^t cverytliiiig. I have already received in civil suits
1,240 pounds in paper besides nineteen silver dollars. I ex
pect to receive tomorroAV 500 pounds and my salary for this
and Edenton Court, Avhich Avill be 1,000 pounds. * * *
My fear is that, as usual, the money Avill be much depreci
ated before I lay it out. I shall carefully preserve the hard
nioncj' to the last." From Xcav Bern, at the following term,
he Avritcs ^ifrs. Iredell that he has received 4,540 pounds
"of this currency," 1,350 pounds of Continental, and $0 in
hard money; that lie Avill receive 1,500 pounds for his salary
at tliesc courts, "but my expenses here are monstrous — 100
pounds a day for my board and lodging only," At Wil
mington he AV.;3 employed in the first admiralty case tried in
the State of Avhich the record is extant. The Assembly at
Halifax, 1781, A'oted the judges 20,000 pounds each and the
Attorney General 10,000 pounds "for making up the depreci
ation of their alloAvance." Iredell resigned his office (1781),
of Avhich, Avriting 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 Avith a show of business very near equal to any law
yers iu tho country."
After the ratification of tho Treaty of Peaee and tho with
drawal of troops from the State, the people began tho work
of restoring their fortunes and enacting laAvs suited to their
noAV political situation. Dift'erences, moro or loss funda
mental, Avhich had manifested themselves during the Avar,
became more marked — dividing the leaders and people into
parties. Iredell Avas in agreement Avith the conservatives,
Johnston, IIoo])er, ilaclaine, Davie, Spaight, and others, in
opposition to Willie Jones, Thomas Person, Samuel Spencer,
and others. The former insisted that the Stato should carry
out in good faith the terms of the treaty, and adopt such
measures as AA'ere necessary for that purpose ; enforce con
tracts and maintain a strong and stable government. While
Iredell neither held nor sought any public position, ho was
"in touch," through correspondence and otherwise, with the
leaders of the party known as Conservatives. lie prosecuted
the jiractice of his profession with industry and success, rank
ing easily Avith the lenders of the bar. The moro radical
sentiment in thc Stato Avas disposed to magnify the power of
the Legislature and oppose any restriction upon it by tho en
forcement of Constitutional limitations, especially by tho
courts. In an address to the public, Iredell set forth his
views regarding the onforeomeut of Constitutional limita
tions upon the Legislature. Eeferring to the Convention
(NoA'ember, 1776), Avhich formed tho Constitution, ho says:
"It Avas 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 tho abuse of
unlimited poAver, Avhich was not to bo trusted, without the
most imminent danger, to any men or body of men on earth.
Wc had not only been sickened and disgusted for years Avith

James Iredell, 19
tho high and almost impious language from Great Britain,
of the omnipotent poAver of the British Parliament, but had
severely smarted under the effects. 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 Ave spurned at the inso
lent despotism of Great Britain, we had established a despotic
poAver among ourselves. * * * j have no doubt but that
the poAver of the Assembly is limited and defined by the Con
stitution. It is a creature of the Constitution. * * *
Thcso are consequences that seem so natural, and indeed so
irresistible, that I do not observe that they haA'e been much
contested. The great argument 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, Avhat
ever it is, is to be obeyed as a law; for the judicial poAver
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 Avhich has since been pursued by the courts, both State
and Federal, He concludes: "These are a few observations
that have occurred to me on this subject. They are giA-en 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 poAver
in every shape whatever, and reverencing beyond expression
that Constitution by which he holds all that is dear to him
in Hfe," It must be remembered that these views were ex-

¦20 James Ibedell,
jiresscd before any court had held that it Avas within the
jiower and tliercforo tho duty of the judiciary to refuse to
enforce statutes passed without Coiistitiilional warrant. Thc
question had been niooled, nnd in one case passed upon, prior
lo the dnle of Iredell's address (17S(1), bul the opinion of tho
Court had uol been ])iiblished iKyoiid the jurisdiclion in which
it wns decided. Uichnrd Dobbs Spnight, while a inemher
of the ConveiitiiJii nl Pliilndelpbiii (.\ngiiM 11', 1^77) in a
letler to Iredell, refers to tht,' action of the jiid.nes in Inddiiig
an net depriving litignnts of trial by jury (lliiijard r. Siiifjlc-
1(111, 1 .Mnrliii, 4l') unconslilntional. lie hiinents "ihat the
,\s!.eiiibly linvi' ]iiished laws unjust in (heiiiMdves and .iiili-
tatiiig in their ]jriiici]des auninst the Con^litution in moro
iii>lniiccs tlinii oni'." He says; "I do not iirelend to vindi
cate llie law, wliicli has U'cii the «iihjecl of coni rovei^y ; it
i?. iniiiinlerinl whnl law ihey have decdnred \'oid; il is their
usiiri)ntion of thc niilhority to do il lliiil 1 complain of, as
I do most positiv(dy deny thnt ihey lm\'e any such power;
nor can they find nnything in the ('(ni.ilitiilinn, cither directly
or iuqiliedly, that will aiijiport them or give them any color
of right to exercise that authority. * * * It must be
acknowledged that our Cou.^titution unfortunately has not
jn'ovided a .sulHcieiit check to |ireveiit the inteuipernle nnd
unju.^t proceeding's of our Legislature, thouf^h such a check
Avould he very beneficial, and I think absolutely necessary
to our Avcll being; the only one that I know of is the annual
election Avhich, by leaving out such members, Avill in some
degree remedy, though it can not prevent, such evils as may
arise." On August -26, 1787, Iredell answered ^Ir. Siiaiuht's
letter at length, saying: "In regard to the late decision at
Ncav Bern, I confess that it has ever been my opinion that
an act inconsistent Avith the Constitution was void, and that
thc judges, consistently with their duties, could not carry
it into effect. The Constitution appears to me to be a funda-

James Ikedell, 21
mental law, limiting the poAvers of the Legislature, and AA'ith
Avhich every exercise of those powers must be compared." In
regard to bis apprehension that the poAver Avill be abused,
Iredell says: "If you had seen, as I did, Avitli Avhat infinite
reluctance the judges came to this decision, Avhat pains they
took l>y proposing expedients to obviate its necessity, you
would have seen in a strong light hoAV little probable it is a
judge AA'ould ever give such a judgment Avhen he thought he
could possibly avoid it. But AA'hatever may be the conse
quences, formed as our Constitiution is, I can not help think
ing tbcA- 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 uoav
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 Avas the opposition
more pronounced or determined. The popular leaders of the
dominant party Averc actiA'e 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 ncAV 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 Avere most
active in pressing upon the people the adoption of the Con
stitution Mr. Iredell Avas undoubtedly the most able and
energetic," At the session of the Legislature NoA'ember, 1787, Mr,
Johnston was elected Governor and Mr, Iredell a. member

22 iIaMEH lillilUOLL.
of the Council ; ho wns also appointed a coinmiHsionor lo re-
vlao und collect the Acts of ihc Goiieriil AHsembly, then in
force, A convention of tho jieoplo wiia ciilleil to iiieet at
JlillHboi'o, c(Hii|ioHcd of dolegnlcH from llie severnl coiinlieH
and the borough tuwiis. Iredell wiis elculed, unnniinoUHly,
from .Kdeiiloii. On Jiinuiiiy 8, ¦17HS, ho piihliHlied a pnin-
])hlel entitled "Answer to jMr. jMiison's Objections to the New
Coiistiliiliou Hc(!Oiniiimided by the bile Convention at I'liiln-
delpliin," hy ".Mni'cns." He slated ench of jMr, .Mnson's
"ohje<'tioim'' in their oi'dcr, and in ihe kiiiiic order iiiiHWcrH
them. Ill In not \vllhiil Ihe Ncope of thin nkelcll lo lilidel'lllke
u vi'vicw of Mr, .li'edeli'H "iiiii'iwoi'" lo Ihn I'ldchrnliKl paper
of Mr, George .Miisou. Tho iiiimphlot iniido u fiivoriiblo im-
prcsaion on the public mind and strongly inflnoncod Iredell's
future career. The correspondence between Iredell and Wil
liam Hooper, William R, Davio nnd Maclaine gives an inter
esting view of tho condition of public sentiment in tho Stnlo
in regard to tho new Constitution. Says one, Avriting of the
lenders in the Convention: "The most prominent Federal
ists Avero Iredell, Davie, Governor Johnston, Spaight, ilae-
lain [sie] and Steele. Foremost in their number nnd the
leading spirit of tho Avliole body was Judge Iredell, conspic
uous for his graceful elocution, for the apt application of his
varied learning, his intimate knoAvledge of tho schemes of
government, and his manly and generous temper.
"Davio, with spotless plume, towering in intellect, as in
stature, above tho majority of thc members, stood like a
knight of the olden time, lance in hand, the luster of his
military services pbayed about him and was reflected in flash
ing ]if;ht from hauberk, morion nnd polished steel.
"Gn\-ernor Johnston, the President of the Convention, calm,
lucid and convincing, seldom participated iu thc debate;
when he did, his blows Avere always delivered with stunning
effect.

James Iredell, 23
"Maclaine, sensible, pointed and vigorous, was the Hotspur
of his party.
"Steele Avas laborious, clear-sighted and serviceable by his
knoAvledge of men.
"Willie Jones, although democratic in theory, Avas 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. * * * He Avas 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, Avas in debate far
superior to his associates.
"David CaldAvell, a Presbyterian divine, was learned and
intelligent. He had for years discharged the triple functions
of preacher, physician and teacher.
"JMcDoAvell, thc rival of Davie in military renown, Avas a
man of action rather than words,
"Bloodworth, by no means the least among them, Avas one
of the most remarkable men of the era, distinguished for
the versatility of his talents and his practical knoAvledge 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 Avere defeated at the polls.
The debates were conducted with ability and dignity, and
at times Avith much asperity, W^hile Davie, Spaight, Mac
laine and Johnstou bore their share, Iredell Avas 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

21 Ja.mes Ieedell.
rejected l)y n vote of lS-1 to 84.' While Iredell was defeated
ho 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 tiie Constitu
tion, the new government was organized .Vpril .30, 1780,
North Carolina taking no part Imt remaining a free, sover
eign, independent Stato.
It appears from the letters of the Honorable Pierce But
ler, Senator from South Carolina, written from Now York,
August 11, 17's',), that IreilcH's repatntion had extended lio-
yoiid the borders of the Stale. He says: "Tho Southern
interest calls aloud for s(Uiie such men as .Mr. Iredell to rcp-
rc-eiit il — lo do it justice." Dr. W'illinm^oii writes, at the
same lime: "The .Xm'lli Caroliiin llehnles are CDiisidernbly
riMid in ihis Sinli', especially by Con;;ress iiiemheiM, some
of Avhoui, formerly had little knowledge of the citizens of
North Carolina, have lately been \'eiy minute in their in
quiries concerning Mr. Iredell. By the \"ay, I have lately
been asked by a Senator whether I thought you would accept
judge's place under the new governnicnt if it re<iuired your
moving out of the State, as we are not in the Union." A
second Convention met at Fayctteville Novend>er 2, 17S0.
Iredell was not a candidate for election as a delegate. With
but liltlc debale the t'Diistitutioii was ratified nnd anieiid-
nients ])ro]io~ed. A bill was passed establishing a iiniversily,
the names of Samuel .Johnston and Janies Iredell being placed
at the head of the list of trustees.'
^Inclniuc writes Trcdcdl December 9, 1781): "What Avould
you think of being the District .Tudgc '.'' lie was soon- called
to a larger field and hi;;lier judicial service. On February
10, 1700, without solicitalion on his jiart, ifr. Iredell was
nominated by President Washington, and unanimously con-
'CoDvi-nliim ot l-.s."!, -X. C liooUrt, \'..l, IV
^Buttlu'B lliatory ul tile t'limi^iiy ul \orth Carolina, S21

a

James Iredell, 25
firmed by the Senate, one of the Associate Justices of the
Supreme Court of the United States, He Avas just thirty-
nine years old. The President enclosed his commission Avith
the folloAving letter: "One of tho seats on the bench of the
Sii]irenic Court of the Enitcd States having become vacant
|by the resignation of tho gentleman appointed to fill the
^sainc, I have thought fit, by and Avith the advice and consent
of the Senate, to ajiiioint you to that ofiice, and have now
thc pleasure to cncioso you a commission to l>e 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 Avould
impress you Avith this idea in respect to ours, * * * 1
must, hoAvever, observe that, vicAving as I do the Judicial
Systcni of the United States as one of the main pillars on
Avhich 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 oavii knowledge or the best
information, I conceived Avould give dignity and stability to
thc goA'crnmont ¦¦ * * at thc same time that they added
luster to our national character," It is said that "Wa.shing-
ton derived his conviction of Iredell's merits from a perusal
of the Debates in the' North Carolina Convention and the
famous re))ly to George ilason's objections."" Butler wrote
Iredell February 10th : "I should have been hajipy to have
had you in Congress. The Union Avill no longer be deprived
of your aid and the benefit of your abilities, * * * I
congratulate the States on the appointment and you on this
mark of their AA-ell-merited opinion of you," AcknoAvledging
the letter from tho President, Iredell Avrites : "In accepting
this dignified trust I do it Avith all thc diffidence becoming
the humble abilities I possess; but, at the samo time, Avith

'Carson's History of tho Supremo Court, 165.

20 James Ieedell,
the most earnest resolution to endeavor by unremitting ap
plication n faithful discharge of all of its duties, in the best
manner in my power." Judge Iredell Avas assigned to the
Southern Circuit and entered upon tho work immediately.
He reached Charleston May 23, 1790, and there met Mr.
Eutledge before whom he took the oath of office. He Avrites
Mrs. Iredell : "I have received the greatost and kindest
ciA'ilities from Mr. Eutlodge, at Avhose house I have the
pleasure of staying." He proceeded to Savannah. There
Avas but little business in tho new Court other than organiz
ing the Circuit Courts and putting the new judicial system
in Working order. Supjirising that the jiulgcs Avould "rotate"
in tho Circuit Court work, he removed his family to ^ew
York. The Court having, to his surprise, adopted tho rule
Avhich confined judges to one circuit — IrodoU's being the
Southern — he found himself A'cry much embarrassed. The
long distance to be traveled (1,900 miles) twice each year
Avas a severe tax upon his health nnd strength. He justly
complained of the arrangement to the Chiof Justice, Avho
conceded that "your share of the task has hitherto been more
than in due proportion." Althuugh the judges refused to
make a more equitable rule, by exchanges, they sometimes
rode different circuits. Justice Iredell took bis seat Avith the
Chief Justice and his associates at the August Term, 1700.
No business Avas transacted, the Court adjourning sine die.
Iredell again rode the Southern Circuit, but it does not ap
pear that there Avas much business to engage his attention.
William Hooper, to Avhom Iredell was strongly attached,
and for A\hose chnracter nnd talents he had the highest re
gard, died October 14, 1700. Writing a letter of condolence
to Mrs. Hooper, Iredell said: "An attachment founded on
thc 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 anv change
of place, time or circumstance."

Jajies Ikedell, 27
A suit Avas 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 Avhich Iredell refused to join. By direc
tion of Justices Wilson, Blair and Rutledge a writ of certi
orari Avas issued to the State Court, Avhich the judges refused
to obey. As an indication of the jealousy of the noAV gov
ernment in the State, the General Assembly adopted a reso
lution declaring that "The General Assembly do commend
and approAc of the conduct of the judges of the Courts of
LaAV and Courts of Equity in this particular."" At the same
session the House of Commons, by a vote of tAventy-five to
fifty-five, refused to adoi)t 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 Avere
depending some suits for the recovery of debts, to which pleas
were put in by tho defendants, not denying the existence of
tho debts, but shoAving (as they concei\'ed) a right in the
State of Georgia to recover them under certain Acts of As
sembly of the Slate passed prior to tho Treaty of Peace. Tho
Attorney and Solicitor General of the State wore directed to
interfere in the defense, but tho counsel for the defendants
refused to permit thein. Thc Attorney and Solicitor Gen
eral, being dissatisfied Avith 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-
•Stnto Ilccords, XXI, 441, 806, 1080, 1082.

28 James Iuedell.
estiug subject, because it apjiears lo mo of tho highest mo
ment, although I believe it would bo difficult to devise an un
exceptionable remedy. But the discussion of questions
Avhereiu are invoh'od 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
Gcorrjin V. Bruilsford. 2 Dallas, 402; 3 Dallas, 1.
At the April Term, 1702, of the Circuit Court at Sa
vannah .ludiic Iredell delivered a chnrge to thc grnnd jury
which so impre--sed the moinbers that they unanimously re
quested its puhlicntion. A number of his "charges" in other
circuits were published at the request of the grand juries.
At the .Tune Term, 1702, at the Circuit Court at Raleigh,
N. C, Ju(l;;e Iredell, Avith District Jndge Sitgreaves, was
confronted with a delicate question. Congress had enacted
a statute directing that the invalid pension claims of widows
and orphans should be exhibited to the Circuit Courts; that
those to whom the Court granted 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 chnracter, nnd thereforo not authorized by the
Constitution, Avliich carefully separated the powers and duties
of ench department of the Govcrmncnt, Judge Iredell pre-
]iared a remonstrance, addressed to the President, in which
ho said :
"We beg lea\-e to premise that it is as much onr inclina
tion as it is our duty to receive Avith all ])ossible respect every
act of the Legislature, and that wo never c-an find ourselves
in a more painful situation than to be obliged to object to
thc execution of any, more especially to the execution of one
founded on thc purest principles of humanity and justice,
Avhieh the actual question undoubtedly is. But however

JajIES IpEDELL. 29
lamentable a difference really may be * * * Ave are
under the indisiieusable necessity of acting according to the
best dictates of our judgment." He set forth at length the
reasoning by Avhich he had been brought to the conclusion
that he could not, with proper regard to the Constitutional
distribution of poAvers, execute this statute, concluding: "Thc
high respect avc entertain for the Legbslature, our feelings as
men for persons Avhose situation requires the earliest as avcII
as the most effectual relief, and our sincere desire to pro
mote, Avhether officially or otherwise, the just and benevolent
vicAVs of Congress, so conspicuous on this as well as on many
other occasions, have induced us to reflect Avhether we could
be justified in acting under this act personally in the char
acter of commissioners during the session of a court; and
could AVC be satisfied that avo had authority to do so avc Avould
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 thc President. The question Avas
brought before the Court by a motion made by Attorney Gen-
,eral Randolph, c.v officio, for a mandamus directed to the Cir
cuit Court for the Dbstrict of Pennsylvania, commanding tho
Court to proceed to hear the ]ictition of William Ilayburn,
etc. The Court being divided in opinion Avhetlicr he could
make the motion ex officio, he Avas permitted to do so on be
half of Ilayburn. Xo decision Avas made at the time and
Congress soon thereafter "made other provisions for the re
lief of pensioners." Judge Iredell, mitil tho act AA'as re
pealed, heard a large number of petitions as commissioner.
Ho Avrites ]\[rs. Iredell from Hartford, Connecticut, Sep
tember 30, 1792: "We have a great 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 Uniled
States V. Ferreria, 13 HoAvard, 51, Chief Justice Taney says
of the action of the Court: "The repeal of the act clearly

30 James Ikedell.
shoAvs that tho 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
thc Brailsford case, in tho Circuit Court, the State filed a
bill in equity in the Supreme Court, alleging that the title
to the bond, upon Avhieh the action in tho Circuit Court was
brought, Avas, by virtue of an act passed during the Avar,
confiscating and sequestrating the property and debts of
British subjects in tho State. The Court Avas asked to enjoin
the plaintifi's from proceeding, etc. Each of the Judges Avrote
opinions. Iredell observed that he had sat in the Circuit
Court and refused the motion of the State to intorvono. He
said that the Court could not, Avith propriety, sustain tho
application of Georgia because Avhcncver a State is a party
the Supreme Court has oxclusiA'o jurisdiction of tho suit.
The State, thereforo, did not have a complete and adequate
remedy at law. "Every principle of laAV, justice aud honor,
hoAvevor, seem to require thnt the claim of the Stato of Georgia
should not bo indirectly decided or defeated by a judgment
pronounced between parties over Avhom she had no control,
and upon a trial in Avhicli she Avas not allowed to bo heard."
He was of tho opinion that an injunction should bo awardeil
to stay tho money in tho hands of the ^Marshal until the
Court made further orders, etc. The Court was divided in
opinion, tho majority holding that nn injunction should issue
until tho hearing. At tho February Term, 1703, a molinii
Avns made by l!aiidol]ih to dissidvo Iho iiijiinclion. fi-cdcll
was of tho opinion thnt tho motion should bo denied. He
held ihnt, for sevisriil reasons, Iho Slato could not sue on liii!
bond at Inw, asking; "How is she lo oblniii possession ai'
the instrument williout Iho aid of a Court of l^piity ;" point
ing out tho practical difficulties which she Avould encounter
in securing tho 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 ansAvors that Avhile the action
"may be beneficially applied to a great variety of cases, it
can not be pretended that this form of action Avill lie before
the defendant has actually receiA'ed 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 Avas the true
owner. Although a majority of the Judges Avere of the opin
ion that the State had an adequate remedy at laAv, the course
suggested by Iredell was substantially pursued. At the Feb
ruary Term, 1794, an amicable issue Avas submitted to a
special jury. The argument continued for four days, Avheu
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 laAV of the land arising upon those facts ;
and on that point it is proper that the opinion of tho Court
should be given," He says that the opinion of 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 Avas revived at the coming of peace,
both by the laAv 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
Avhile it Avas the "good old rule" that the Court should decide
questions of law and the jury questions of fact, the jury ha\'e
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 Ikedell,
Notwithstanding tho facts were agreed upon and thc Court
Avas annnimous 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 jioing away from the bar," they returned a verdict for the
defendant. The case has thc distinction of being tho only
one in which a jury Avas empaneled in tho Supreme Court.
Flanders says: "The charge of the Chief .Tustiee to the
jury is curious, from the oitiuions he expresr^ed as to the ex
tent of their jiowcrs. His slatcment of the law on that point
is clearly erroneous."' IMr. Jnines Scolt Brown .^ays; "The
judiiiiient was clearly right, hut the slatcment of the Chief
.lu--tice that the jury was judge of the Inw, as well as the
fads, is ojien to serious doiibr.""
In ('lii.'<liohii r. (jcoryiii, 2 Dnllns, -.'IO, stnnding nloiie, Ire
dell enuncinted nnd, with n Avenlth of lenrning and "arsenal
of argiinient,"' maintained the [losition that n State could not
be "haled info court" by a citizen of nnother Stnle. The
ipiestioii arose in an action of assumpsit instituted in the
Supreme Court against thc State of Georgia, process being
served upon the Governov aud the Attorney General. The
State refused to enter an appearance, but filed a lemonstrance
and protest against tho jurisdiction. The Attovney General,
Bandolph, representing the ]daintiff, lodged a motion that
unless the State entered an nppenranee and shoAved cnnse to
the contrary, ly a day nnuied, judgment by defnult and in-
(juiry be entered, etc. This motion Avns argued by Itandolph,
the State not beinu' reiircsenled. Each of the juslic-es filed
opinions. Iredell first analyzed the provisions of the Consti
tution conferring jurisdiction upon the Court in controversies
Avherein a State Avas a party: He quotes the language of the
Judiciary Act distributing tho jurisdiction in such cases.
'Livpa of the Chief Jjritices; 303.
"Great American Lawyers, Vol. I, 285.

Jajies Ieedell. 33
He dwells somcAvhat on the meaning which should be given
to the word "controA'ersies" in the Constitution, Avith tho sug
gestion that the use of this Avord indicated a purpose to so
restrict thc causes in Avbich jurisdiction Avas conferred as to
exclude actions at laAV for the recovery of money. He pro
ceeds to consider the question Avhether it is necessary for
Congress to prescribe a method of procedure in controversies
wherein the State is a party. He argues that Avhile the ju
dicial department of the government is established by the
Constitution, the Congress must legislate in respect to tho
number of the Judges, the organization of the Supremo and
such inferior courts as may be established, etc. He quotes
the fourteenth section of the Judiciary Act, in Avhich poAver
is conferred upon the courts to issue Avrits of scire facias,
liaheas corpus, and all other Avrits not specially provided for
by statute, Avhich may be necessary for tho exercise of their
respective jurisdictions and "agreeable to the principles and
usages of laAv," noting the fact that "neither in the State
noAV 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 Avas in being, either Avheii the Con
stitution Avas adopted or at the time Avhen the Judicial Act
Avas passed," and concludes that only principles of the com
mon law, a laAV Avhich is the ground Avork of the laAVs in every
State in tho Union and Avhich, so far as it is applicable to
tho peculiar circumstances of thc eonntry, and Avhcn no
special act of legislation controls it, is in force in such State,
as it existed in England at thc time of the first settlement of
this country ; that no other part of the common laAV of Eng
land can have any reference to the subject but that which
prescribes remedies against the CroAvn, Thus he is brought
to tho 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 tho State is a
3

34 James Ikedell.
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, thc ques
tion necessarily arises Avhether the States of tho Union, Avhen
sued, are to be proceeded against in tho same manner as, by
the common law, is prescribed for proceeding against the
Sovereign. It is just at this point that tho line of thought
between Iredell and Wilson divides. Tho former says:
"Every State in the Union, in every instance where its sov-
oreigutj' has not been delegated to tho United States, I con
sider to be as completely sovereign as tho United States in
respect to the powers surrcuderd ; each State in the Union
is sovereign ns to all tho powers reserved. It must neces
sarily be so, because the Uniled States have no claim to any
authorilv 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, muler tho Con
stitution, can be made legally liable to this authority, so far,
to be sure, they arc subordinate to tho authority of tho United
States, and their individual sovereigiity is, in this respect,
limited. But it is limited no further than tho necessary exe
cution of such authority requires." It will be observed that
Iredi'll is not, at this (loiiit in the argument, discussiug tho
question Avhether it is within tho power of Congress to pre
scribe a mode of procedure for bringing a State into the Fed-
oral Court to answer for a money demand by a citizen of
another State. Thc 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 tho Sover
eign. It therefore becomes necessary to follow tho argument
and establish tho proposition thnt 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 rc-
s])ect to the mode of proceeding against it in a controversv in

James Ieedell. 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 histoiy of the law in .England in this re
spect, although A'ery interesting, has no permanent interest
to the student of American Constitutional law. He thus con
cludes this branch of the discussion : "I have noAV, 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 tho 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 laAV 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
vioAV, to dispose of thc case before the Court, but Judge W'il-
son, Avho Avrote tho principal opinion for the majority, threw
doAvn the gauntlet and challenged the basic proposition upon
Avhich Iredell's argument Avas founded. Here Ave find tho line
of cleavage betAveen thc two schools of thought upon the
fundamental conception of tho relations wliich tho States
boro to the .Federal Government, Iredell was a Federalist,
Wilson a Nationalist, Wilson opened his opinion Avith these
Avords: "This is a case of uncommon magnitude. One of
tho parties to it is a State, certainly respectable, claiming to
bo 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, Avill 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

3G James Ikedell.
not a man to conceal his opinions when either propriety or
duty demanded their expression. Hooting his associate npon
the "main question," "So far as this groat question affects
tho Constitution itself, if the present afl'orded, consistently
Avith 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, Avliich it is
unnecessary for him to decide. My opinion being tkr.t even
if the Constitution Avould admit of the exercise of such a
jjOAver, a new law is necessary for the purpose, since no part
of tho existing law applies, this alone is sufficient to justify
my determination in tho present case. So much, however,
has been said on the Constitution that it may not bo im
proper to intimate that my present opinion is strongly against
any construction of it Avhich Avill admit, under any circum
stances, a compulsiA'o suit against the State for the recovery
of money. I think every word in tho Constitution may have
its full effect Avithout involving this consequence, and noth
ing but express Avords or an insurmountable implication
(neither of which I consider can bo found in this case)
would authorize the deduction of so high a poAver. * * *
A Stato does not oaa'o its origin to the government of the
United States, in tho highest or any of its branches. It Avas
in existence before it. It derives its authority from tho samo
pure and sacred source as itself, the salutary aud deliberate
choice of the people." He thus lays doAvn a eanon of Con
stitutional construction; "If, upon a fair construction of the
Constitution of tho United States, the poAvor contended for
really exists, it undoubtedly may be exercised, though it is a
poAver of first impression. If it does not exist upon that au
thority, ten thousand examples of similar powers Avould not
warrant its assumption." That Iredell Avas in harmony with
Hamilton is manifest from the folloAving language used by

James Ieedell, 37
him iu the Federalist: "It is inherent in the nature of sov
ereignty not to be amenable to the suit of an individual luith-
out its consent. This is thc general sense and the general
practice of mankind, and, the exemption, as one of the at
tributes of soA'crcignty, is now enjoyed by tho government
of every State in tho Union, Unless, therefore, there is a
surrender of this immunity iu the plan of the Convention,
it Avill remain Avith the States, and the danger intimated
must be merely ideal. * * * There is no color to pre
tend that the State goA'ernments Avould, by the adoption of
that plan, be divested of the privilege of paying their OAvn
debts in their oAvn Avay, free from every restraint but that
AAdiich floAVS 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 Avill think that a State will be
called to the bar of tho Federal Court, * * * It is not
natural to suppose that the sovereign power should be dragged
before a court."
]\[r. Carson, Avriting of the opinion of the Court in Chis-
holm's case, says: "From these vicAvs 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 have since become known as State Rights
Doctrine and Avhich 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 vioAA's [of the majority] were not concurred in by
Judge Iredell, who delivered a dissenting opinion. That
•No. 81 (J, C. Hamilton, Ed. 002).
MElUott's Debates, 2d Ed., 633.
"Hist. Sup. Court, 174.

38 James Ihedell.
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, ho analyzed the argnmont of the Attorney
General, and arrived at exactly the opposite conclusion. His
opinion was that no part of the existing laAV applied to this
case; and even if the Constitution would admit of the exer
cise of such, a poAver, a neAV law Avas necessary to carry the
poAver into effect, and that assumpsit at tho suit of a citizen
Avould not lie against a State. One can scnrccly arise from
a careful perusal of this able opinion Avithout being sensibly
impressed A\'ith tho force of the reasoning of the learned
Judge, and the accuracy of his deductions. Lucid, logical,
compact, comprehensiA'o, it certainly compares A'ery favor
ably Avith that of the Chief Justice in every respect, and as a
mere legal argument must bo admitted to bo far suiieridr.''
* * * As a constitutional laAvycr Judge Iredell had no
superior upon tho bench. His judicial opinions are marked
by great vigor of thought, clearness of argument, and force
of expression. He did not ahvays concur with tho majority
of his brethren in their constitutional constructions, and on
such occasion rarely failed to sustain his positions b)' tho
strictest legal as Avell as logical deductions. In tho interest
ing case of Ware v. Tlylton, 3 Dallas, 100, 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 tho old Supreme
Court.'"' "The rough substance of my argument in tho suit against
the State of Georgia," bearing date "February IS, 170.3," as
penned by the author, is before me. The writing is neat, the
"headings" carefully arranged, a fcAv erasures — interliue-
nPnKe 00.
'•II,.. p. 01.

James Ieedell. 39
ations — showing care and caution in the form of expression.
The argument covers tAventy-three pages; the paper is Avell
preserved and thc Avriting 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 Avith the minority than Avith the majority of the Court.
* * * iVnd this fact lends additional interest to the able
opinion of Mr, Justice Iredell on that occasion. The other
justices Avere more sAvayed by a close observance of the letter
of the Constitution, Avithout regard to former experience and
usages; and because the letter said that the judicial poAver
shall extend to controversies betAveen a State and citizens of
another State, etc., they felt constrained to see in this lan
guage a poAver 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 shoAved conclusively was never done
before), but only by proper legislation to invest the Federal
Courts Avith jurisdiction to hear and determine controversies
and cases between the parties designated that Avere 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 Chishohn 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 vicAvs of
tho latter were clearly right, as the people of the United
States subsequently decided. * * * In A-icAV of the man
ner in which that decision was received by the country, tho
adoption of the EleA'enth 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 Ikedell.
ford, and Lnmar, Associate Harlan, .T., alone dissenting. It
is not within the ]uiriOTse or scope of this sketch to enter into
a discussion of the nierils of the greiil qiu'slion involved in
this buttle of tho giniits or of Ihe mnniicr iu which they bus-
tnined their conclusions. It is, however, a part of the his
tory of the eontrovorsy nnd of tho times, that two days after
the opinion was filed sustaining the jurisdiction, by a majority
of the Court, the Eleventh Amendment Avas introduced into
Congress. "It Avas proposed by ilr. Sedgwick, a Repre
sentative from ^Massachusetts, but Avas passed in tho Senate
as amended by Mr. Gallatin.'"* ilr. Guthrie snys that Mr.
Caleb Strong Avas its author. Tho Avords are : "Tho judicial
power of tho 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 Stato or by
citizens or subjects of foreign States." It is significant that
the language of the Amendment is declaratory of what, iu
tho opinion of Congress, was the correct construction of the
Constitution. It Avas essentially a reversal of tho decision
of the Court nnd Avriting into the Couslitulion the dissenting
opinion of .Tustico Iredell. This is evidenced by the fact
that notwithstanding that, in accordance Avilh the decision
in Chisholm's case, judgment wns rendered for the plaintifl'
at February Term, 1704, and a Avrit of inquiry awnrilcd, the
Court, at ]'''ebruary Term, 170S, in IfuUing.s-ivorlh 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 wdiich a Slate Avns sued by the
citizens of another Stato, or by citizens or subjects of any
fo'-eigii State." :^rr. William D. Guthrie says; "The un
usual nnd peculiar wording of the Ameiidmeut first attracis
attention. Instead of declaring how tho Constitution shall
i*WatHon*8 CoriMt., 1535.

James Ieedell. 41
read in the future it declares hoAv it shall 'not be construed.'
* * * The Amendment, therefore, does not purport to
amend or alter the Constitution, but to maintain it unchanged
Avhile controlling its scope and effect and thereby authorita
tively declaring hoAv it shall not be construed."'" ]\Ir. Jus
tice Bradley says: "The Supreme Court had construed the
judicial poAvcr as extending to such a suit, and the decision
was overruled. Thc Court so understood the effect of the
amendment."'" With that remarkable prevision Avhich marks him as one
of, if not the first, prophetic statesman Avhich the Avorld has
produced, Hamilton points out the danger and difficulty
which lurked in the construction given to the Constitution
by the majority in Chisholm's case. He says : "To what
purpose Avould it be to authorize suits against States for the
debts they owed ? Hoav could recoveries be enforced ? It is
evident that it could not be done Avithout 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 poAver which Avould involve such
a consequence, Avould be altogether forced and uuAvarrant-
able." This language becomes of present interest in the light
of the concluding Avords of the opinion of Mr. Justice Holmes
in Virginia v. West Virginia, "As this is no ordinary com
mercial suit but, as avc 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, avo think it best, at this stage, to go no
further but to await the effect of a conference between the
parties Avhich, Avhatever the outcome, must take place,
* * * But this case is one that calls for forbearance
upon both sides ; gi'cat States have a temper superior to that
""The Eleventh Amendment."— Columbia Law Eeviow, March, 1908.
"Hans V. Louisiana, 134 U. S. 11.

42 James Ii!edell.
of private litigants and it is to be hoped that enough has
been decided for patriotism, tho 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 thc
Avisdom of Iredell's view and the apprehension expressed in
his concluding Avords: "This opinion I hold, however, Avith
all the reserve proper for one Avhich, according to my senti
ments in tho 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 Avas A'ory doubtful. Policy then might be
argued from Avith a vioAV to preponderate the judgment.
Upon the question before us I have no doubt. I have, there
fore, nothing to do Avith the policy, but I confess, if I Avas
at liberty to speak on that subject, my opinion on the policy
of the case Avould also differ from that of the Attorney Gen
eral. It is, hoAvever, 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 ho predicts of it
may take place and none of the evils Avith Avhich, I have the
concern to say, it appears to me to be pregnant." In South
Dahotu. V. North Carolina,^'^ the question, as there presented,
Avas discussed and decided against the contention of the State
by a divided Court of five to four. The present Chief Justice
Avroto a strong and Avell sustained dissenting opinion, con
curred in by Chief Justice Fuller, Justices ^[clvenua and
Dny. Tho decree there was, however, confined to a statu
tory mortgage upon specific property. Tho question Avhether
judgment for a deficiency Avotdd be entered Avas expressly
reserA'od. The case Avas settled by compromise.
The Court has refused to take jurisdiction in a number of
"A'iritinin v. West Vireinia, 220 U. S., 35.
'•192 U. S., 286.

James Ieedell, 43
cases where the attempt was made to avoid the provisions of
the Amendment.'"
In Penhalloiv v. Doane/" 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 thc poAvor conferred on the
Confederation to establish Courts of Admiralty, and the effect
of tho judgments of such courts in prize cases. It is not prac
ticable to mako extracts from this opinion, but tho folloAving
is of especial and permanent interest: "By a Stato forming
a republic I do not moan the Legislature of the Stato, the
executive of the Stato, 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 thc
citizens, as such, are equal, and no citizen can rightfully ex
ercise any authority over another, but in virtue of a poAver
constitutionally given by the whole community Avhich forms
such body politic,"
In IWhot V. JanseUj'^ an interesting question Avas pre
sented in regard to the right of expatriation and how it Avas
accomplished, Iredell Avrote an opinion in Avhich ho discussed
tho law of nations, etc. Upon the right of expatriation and
thc liniitationa upon its exercise tho opinion is interesting
and enlightening.
In thc case of Ilylton v. The United Slates,^'' involving
the question whether a tax on carriages was a direct tax,
Iredell wrote a carefully guarded opinion concurring Avith
the other Justices that tEe 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 Avhich we do not at present foresee," His caution has
I'lTiinn V. Louidinna. supra, Chrifltiod v. A, & N, C. R. R. Co,, 123 U, S., 233; Murray
V. Di«LillinKOo., 2I3U, S., 101.
'",] DiilinH, fil,
¦13 DiilInB 133.
"3 Dallas, 171.

44 James Ikedell.
been justified by the history of the attempt to settle this
much vexed question. Alexander Hamilton appeared for tho
Government. Iredell writes to ilrs. Iredell: "The day be
fore yesterday ilr. Hamilton spoke in our court, attended
by the most crowded audience I ever saAv there, both Houses
of Congress being almost deserted on the occasion. Though
he was in very ill health he spoke Avith astonishing ability
and in a most pleasing manner, and Avas listened to Avith the
profoundest attention. His speech lasted three hours.
* * * Iu one part of it he aft'ected me cxtr.?mely. Hav
ing occasion to observe how proper a subject it Avas for tax
ation, since it Avas a mere article of luxury Avhich a man
might either use or not as it Avas convenient to him, he added :
'It so happens that I once had a carriage myself aud found
it conA'eniont to dispense Avith it.' "
At tho Spring Term, 1703, of the Circuit Court at Uich-
mond, before Jay, Iredell, and District Judge Grifiin, the
celebrated case of ^Yare v. Hylton Avas heard. During the
Avar the Legislature of Virginia passed au act confiscating
tho debts of British subjects and directing tho payment of
such debts to the loan ofiice of the State. The defendant,
Avho Avas indebted to the plaintift', a British subject, had, in
obedience to the statute, made a partial paA'inent thereon.
Suit Avas brought on the bond. The defendants Avoro repre
sented by Patrick Henry, ]\Iarshall, Inis and Campbell. Ire
dell writes to !Mrs. Iredell from Richmond, May 27th: "We
begnn on the j;i-eat British cases the second day of the court,
and arc now in ihe midst of them. Tlic ;;r(>at Patrick Ilenry
is to speak today. I never was more agreeably disappointed
than in my acquaintance Avith him. I have been much in
his companj' nnd his manners are very pleasing, and his
mind, I am persuaded, highly liber.il. It is a strong addi
tional reason I have, added to many others, to hold in high
detestation violent party prejudice."

Ja.aie.s Ieedell. 45
The discussion Avas one of the most brilliant exhibitions
ever witnessed at the bar of Virginia. Mr. Ilenry spoke for
three consecutive days. The case Avas argued upon appeal
at thc February Term, 1796, of the Supreme Court," Ire
dell Avrote an opinion concurring Avith the majority of the
Court that the Treaty of Peace enabled the creditor to sue
for the debt, but A\'as of the opinion (dissenting) that the re-
coA'cry should bo confined to thc amount that had not been
paid into thc loan ofiice. He said: "In delivering my opin
ion in this important case I feci myself deciily affected by
the aAvful position in Avhich I stand. The uncommon magni
tude of the subject, its novelty, the high expectation it has
excited, and the consequences Avith Avhich 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, Avith a degree of ability equal to any
occasion. HoAA'cver painfully I may at any time reflect on
the inadequacy of my OAvn talents I shall, as long as I live,
remember, Avith pleasure and respect, the arguments Avhich
I have heard in this case. They haA'e discovered an in
genuity, a depth of investigation and a poAvcr of reasoning
fully equal to anything I have ever Avitnessed, and some of
them have been adorned Avith a splendor of eloquence sur
passing Avhat I have ever felt beforo. Fatigue has given
Avay under its infiuence and the heart has been Avarmcd
Avliile the understanding has been instructed." The opinion
is exhaustiA-e in learning. A competent judge has written
that "as a legal argument it may be regarded as one of the
best specimens that haA'e 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
!>3 Dallas, 109.
MVan Santvoord, Lives of the Chief Justices.

40 James Ieedell.
Avas much speculation ns to Avho Avoiild be appointed. Gov
ernor Johnston Avrote Iredell : "I am sorry that Mr. Gush
ing refused tlie ofiice of Chief Justice, as I don't know
Avhether a less exceptionable character can be obtained Avith
out passing over Mr. Wilson, Avhich Avould perhajis 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 Avhich I think that Wilson will resig-n. '" " * Tho
kind expectation of my friends that I might be appointed
Chief Justice Avere too flattering. Whatever other chance
I might haA'o had there could have boon no propriety in
passing by Judge Wilson to come at me."
Iredell rode the Middle Circuit during the spring of 1700.
His charge at Philadelphia Avas published at the request of
the grand jury. At tho August Term, 1708, in the ease of
Cdlder V. Bull, -' Iredell set forth very clearly his view re
specting the poAvor of tho judieiary 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 Avhich imposed no limits on the legislative poAver,
the consequence would inevitably be that Avhatever the Legis
lature chose to enact Avould 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 nnder such a government any court
of justice Avould possess tho poAver to declare it so. " * *
It has boon the policy of all the American States, which
have individually framed their State Constitutions since
the Revolution, and of thc people of tlie United States, when
thoy framed the Federal Constitution, to define with pre-
"3 DollQs, 386,

James Ieedell. 47
cision the objects of the legislative power and to restrain its
exorcise Avithin marked and settled boundaries. If any act
of Congress, or of the Legislature of a State, violates those
Constitutional provisions, it is unquestionably A'oid; though
I admit that as the authority to declare it A'oid is of a deli
cate and aAvful 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 laAV Avithin
the general scope of their Constitutional pcAvcr, 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 ;
tho ablest and the purest men haA'e differed ou the subject,
and all that tho Court could properly say in such an CA'ent
Avould be that the Legislature had passed an act which, in
the opinion of the Judges, was inconsistent Avith 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 \Vil-
son. He Avas much ideased Avith the people of Ncav Eng
land, receiving many courtesies from them. He Avrites from
Boston that he soon found himself "engaged for every day
in the week— sometimes different invitations on tho same
day. Judge Loaa'cH has been particularly kind to me." His
charge to the grand jury at Boston was published by request
and referred to by the editor of the paper as "uniting elo
quence with exhaustiA'e knoAvledge and liberality." From
Boston he writes: "I have constantly receiA'ed 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; eA'ery toAvnship is obliged to maintain
one or more to Avhich poor children can have access without

4S James Ihedell.
any pay." He Avrites from Exeter, Xew Hampshire: "I
met in Boston with a gentleman who lives in j^ewbury Port
of tho name of Parsons, Avho appears to mo to bo the first
lawyer I have met Avith in America, and is a remarkably
agreeable man." This Avas Theophilus Parsons, later Chief
Justice of ]\Iassachusetls. He writes that he had dined Avith
the Committee aud Corporation of Harvard College, "being
seated next to the Lieutenant Governor, the famous Samuel
Adams, who, though au old man, has a great deal of fire
yet. He is polite aud agreeable."
On ^May 27, 1707, Judge Iredell delivered a charge to the
grand jury in liichmond, Virginia, Avliieh was "animated,
perhaps too Avnrni.'' At thnt lime the grnnd jury frequently
made prescntmciit of matters \\'hich lluy regnrdeil ns worthy
of ]iiiblic nlteiilion, although not the subject of criminnl
jirosecution. Tlicy lu-esciited "ns a real e\'il the circular
Idlers of several mombors of the last Congress, and pnr-
ticulnrly letters Avilh tho signature of Snmnel d. Cabell,
endeavoring, at a time of ronl public danger, to disscminnte
unfounded cnlumnies against tho Inqipy Government of the
United States, thereby to separate the people therefrom and
to increase or jn'oduco a foreign inlluencc ruinous to the
peace, happiness ond indepondonco of the^c Unilcil Stales.''
ilr. CnbeJl made nn angry retort, attacking the jury, judge
and the Supreme Court. He proposed to bring the matter
beforo Congress as a breach of privilege. Mr. .loft'erson
urged ilr. Monroe to call it to the attention of the Legisla
ture. Just Avhat they proposed to do Avith the jury or the
judge does not very clearly appear. Judge Iredell published
a card in Avliich ho said thnt tho charge Avas prepared bofiu'o
he reached Richmond and had been delivered iu Penusyl-
vnnin nnd ]\fnry]and; thnt ho Avas not nequainted with Mr.
Cabell and know nothing of the letters referred to by the
grnnd jury. IIo concludes: "With regard to the illiberal

James Ikedell. 49
epithets j^Ir. 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
ncAv 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 A'ery bitter. Gov
ernor Johnston, Judge Iredell's brother-in-laAV, and ahvays
his Aviso friend, writing him in regard to this incident, said:
"The ansAver Avas very proper, if proper to give it any answer
at all." He further said that Avhich every Judge knoAvs from
experience to be true : "I ara sensible of the difficulties Avith
which a man of Avarm feelings and conscious integrity sub
mits to bear, Avithout 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 ansAver only when called upon con
stitutionally before a proper tribunal."
Iredell rode the Southern Circuit during the spring of
1798, suffering much fatigue and discomfort. Judge Wil
son, having suffered financial reverses, sought the hospitality
of GoA'ernor Johnston and Judge Iredell, and found in them
sympathetic friends. His health failed rapidly, resulting
in his death August 21, 1798. He Avas buried at Hayes, the
home of Governor Johnston. His remains were remoyed 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 Sims v. Irvine.'^" He held the Circuit Court at

«3 Dallas, 426.
4

50 James Ieedell.
Philadelphia, at which term several of the insurgents were
on trial for treason. Iu his last charge to the grand jury
ho dwelt nt much length on the law of treason and the Alien
and Sedition laws. It is manifest that Iredell, as Avoro
many others, Avas deeply impressed with tho belief that
French philosophy and infidelity, coupled Avith tho revolu
tionary proceedings in that country, wero making an impres
sion upon the people of this country, finding defenders among
lenders of public sentiment, seriously threatening the pence
of tho country nud tho dissolution of tho Union. He Avns a
Federalist and joined Avith the members of that parly in
their reverence for Washington. IIo disliked and distrusted
tho French leaders and their principles. Ilis charge was
filled Avith Avnrning against tho influence of principles and
conduct which, in his opinion, Avore involving thc American
people in tho French Revolution, and the disturbed relations
of that country Avith England. His concluding Avords in
his last charge to a grand jury are interesting nnd 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 Avill ride triumphant, and all lov'crs of order, de
cency, truth and justice be trampled under foot. ]\Iay that
God, Avhosc peculiar province seems ofton to have interposed
to save these United States from destruction, preserve us
from this Avorst of all evils, and may tho inhabitants of this
happy country deserve His care and protection by a conduct
best calculated to obtain them." Tho grand jury, requesting
the publication of tho charge, say: "At a time like tlie
present, Avhon false philosophy and AA'ickcd princiidcs arc
spreading with rapidity under the imposing garb of liberty
over the fairest countr)- of tho old Avorld, wo are convinced
that the publication of a charge fraught Avith such clear and
just observations on the nature and operation of the Con-

James Ieedell. 51
atitution and laAvs 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 tho trials in Philadelphia had
come to Richmond, "I am glad that you have got away from
tho land of irea.3on to tho land of sedition; the change is
something for the better," Chief Justice Ellsworth, riding
the Southern Circuit, Avrites Iredell from Raleigh, X. C,
June 10, 1799 : "My opinion, collected from some gentle
men who have been lately traveling in that State (Virginia),
and others who Avere 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 oA'crthroAV of the general government.
* * * That the submission and assistance of North Caro
lina Avas 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 Avearing work, coupled Avith
the climate in which ho 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 PettigrcAv, testified of him: "In the run
of the above tAventy 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 Avhose excellent work I have largely
draAvn in the preparation of this sketch, says that Avith Judge
Iredell's papers is an original "Treatise on Evidence," "an

52 James Ieedell.
* * * Essay on tho Law of Pleading," and one on the
"Doctrine of the LaAVS of England concerning Real Prop
erty so far as it is in use or force in the State of ISTorth Caro
lina" ; the tAVO last unfinished.
When it is remembered thnt he came to America at seven-
toon years of ago, Avilh neither Aveallh nor family influence ;
that his opportunities and sources of study Avero limited by
the condition of the country; that for seven of the thirty
years of his life hero the country Avas engaged iu Avnr, we
can, in some degree, appreciate tho immense labor Avhich he
performed and the results Avhich he accomplished. Ilis life
is a tribute to the teaching and example of his parents, the
influence of those Avith Avliom he was brought into association
in his adopted home, his industry, talents, patriotism, nnd
lofty principles of honor and integrity.
Judge Iredell left one son, bearing his name, who became
a lnA\'yor of lenrning and distinction, Judge of the Superior
Court, Governor, and LTnitcd States Senator. IIo Avas, for
many years. Reporter of tho Supreme Court of the State
and author of an excellent AVork on "The Law of Executors."
IIo died during thc year of 1853. His descendants are among
the most honorable, useful nnd patriotic citizens of tho State.
It has been the purpose of this sketch to set forth, in tho
space Avhieh could be allotted, a short survey of the judicial
A\'ork of Judge Iredell. His early death cut short a career
on the bench full of promise of enlarging scope and useful
ness. That ho would have continued to develop his high
judicial qualities and, if permitted, shared Avith the "Great
Chief Justice" tho Avork of laying deep and strong the founda
tions of American Constitutional laAv can not be doubted.
His opinions upon Constitutional questions evince a very
high order of judicial statesmanship.

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