HOLMES v. WALTON (New Jersey, 1780)

Decided by the Supreme Court of New Jersey in 1780, this is the first alleged state precedent for judicial review. The case, which was unreported, is referred to in State v. Parkhurst, 4 Halsted 427, supposedly decided in 1802 but not reported until 1828, where the state court said that in Holmes a state act providing for trial by a six-man jury violated the state constitution. In fact, the act, which involved the seizure and forfeiture of goods traded with the enemy, provided for a trial by jury. New Jersey employed six-man juries in cases of small amounts (under six pounds) from colonial times to 1844, twelve-man juries in all other cases. The property in Holmes v. Walton being valued at $27,000, Holmes had a right to a trial by a twelve-man jury. The trial judge having allowed him only a six-man jury, Holmes contended not that the seizure act was unconstitutional but that the trial judge denied him a twelve-man jury to which he was entitled under the seizure act as well as under the state constitution; the high court so held. The constitutionality of the seizure act was not at issue, and there was no opinion given in which the court discussed, even by obiter dicta, its power to void an act for unconstitutionality. Soon after the decision of the case, which allowed Holmes a new trial by a jury of twelve members, disaffected citizens of the locality alleged in a petition to the state assembly that the high court of the state had held the seizure act unconstitutional. The legislature, however, supported the court by enacting in 1782 that in any suit exceeding six pounds trial by jury meant a jury of twelve. Somehow, a misleading view of the case originated in the 1780s and survived, making Holmes v. Walton a "precedent," however inauthentic, for judicial review.

Leonard W. Levy
(1986)