the militia of Maryland. He may sit on the bench, and in the Federal courts pass judgment on the people of Maryland, but under your constitution he cannot be a justice of the peace to decide the most trifling dispute. He may be a juror in the Circuit Courts of the United States, and as such be an arbiter of the life, liberty, reputation of the first among you, yet he cannot under the laws of Maryland sit in the same box to mete out justice to a pilfering slave. He may be a United States marshal of the district, but he cannot be a constable. The Federal Constitution has guaranteed to every American citizen the right of worshipping God in such manner as he pleases, and this right is violated whenever he is made to feel the consequences of his opinions either by direct bodily inflictions or by disqualification." At last prejudice was overcome by reason. The bill passed the Legislature in 1825; the Confirmatory Act in 1826, and another of the rights of man was extended to Hebrews.

The gain in New York and in Maryland was great indeed. Yet in neither State were the people satisfied. The old agitation for manhood suffrage went on as vigorously as ever, till in 1826 the New York constitution was again amended, the tax qualification for white voters abolished, and the franchise extended to every male citizen of full age who had resided one year in the State and six months in the county in which his vote was offered.

Virginia was next to yield, and, after a contest of nearly twenty years, called a convention to revise and amend her constitution adopted in 1776. Not a word was said in it concerning the franchise, save that "the right of suffrage in the election of members of both houses shall remain as exercised at present." This left it as then defined by law, and the law gave it to a small landed aristocracy. No free negro, no mulatto, no man who refused to give assurance of fidelity to the constitution, could vote under any circumEvery other male citizen of the Commonwealth aged twenty-one years could vote on either of three conditions he must be possessed, or his tenant for years, at will or at sufferance, must be possessed, of twenty-five acres of land, properly planted, on which was a house with a foundation at

stances.

1829.

SUFFRAGE IN VIRGINIA.

393

least twelve feet square; or own in freehold fifty acres of unimproved land; or have a freehold or estate interest in a lot or part of a lot in some city or town established by law. As Williamsburg and the borough of Norfolk then had the right to send one delegate each to the Assembly, a freeman in either might vote if a housekeeper and possessed of a visible estate of $166.66; or, having served an apprenticeship of five years in the borough, could show a certificate of the fact from a Court of Hustings.

The effect of this limited franchise, it was believed, had been hurtful to Virginia in many ways. Legislation and appointment to office had been confined to freeholders. Migration from the State of small land-owners and of landless men had been greatly encouraged. Immigration of the same class to the State had been absolutely prevented; while within the Commonwealth had grown up a steadily increasing class of men, numbering eighty-nine thousand, who paid taxes, yet gave no vote for a member of the Assembly, and were therefore governed without their consent. Again and again attempts were made to secure a convention, extend the suffrage, and give representation to men, and not merely to counties and incorporated towns and cities. At last, in 1829, a convention met, revised the constitution, and extended the franchise somewhat, but still restricted it by property qualifications as curious as they were elaborate. Representatives in Congress were now apportioned among the counties, cities, boroughs, and towns on the basis of population, which was defined to be all free persons, including those bound to service, and three fifths of the slaves. Untaxed Indians were not to be counted. At all elections to office the votes must be given viva voce, and not by ballot. No man who fought a duel, sent a challenge, or in any way aided or assisted in a duel, could hold any office elective or appointive in the Commonwealth. No law of any sort could originate in the Senate, nor even be amended by it, without consent of the House of Delegates; nor could the abolition of any court deprive the judge thereof of his office unless two thirds of the members of each House consented.

Thus was it that in the course of the first fifty years of our

national existence the political ideas of the people changed greatly, and changed for the better. Test oaths and religious qualifications for office-holding and voting were no longer in use; property qualifications were fast disappearing; representation was apportioned on population rather than on electors or tax-payers; offices elective by the people were increasing in number; and more restraint was placed on the Legislatures and less on the governors.

But there had developed in the course of the half century another restraint on the legislative branch of government which was not imposed by any constitution. Judges had assumed the right to set aside acts of legislation which in their opinion were unconstitutional. When and where this right of the judiciary originated, what were the conditions under which it developed, who was the first man to boldly announce it from the bench, are questions which cannot be answered. But it is safe to assert that, like every other judicial idea that ever existed, it is the slow outcome of circumstances. The majority of the colonies for years before their quarrel with the mother-country had seen their laws disallowed at pleasure by the King or Queen in council. They had, therefore, become used to the idea of the existence of a body that could set aside a law enacted by a Legislature and approved by a governor. They were used to written charters and frames of government, and were accustomed to appeal to them as the source of all authority under the King. When, therefore, in their quarrel with the mother-country it became necessary to find some reason for resisting the stamp tax, the colonists appealed to a written document, and declared the tax law invalid, because it violated the provisions of Magna Charta.

Indeed, it is in this connection that one of the early nullifying decisions was made by a court. One day in February, 1766, the clerk and other officers of the Court of Hustings for Northampton County, Virginia, appeared before the bench and moved for an opinion on two questions: Was the law of Parliament imposing stamp duties in America binding on Virginia? Would they, as officers of the law, incur any penalty by not using stamped paper? The judges were unanimously of the opinion that the law did not bind, affect, or concern the

1775-79.

THE COURTS AND THE LEGISLATURES.

395

inhabitants of Virginia, "inasmuch as they conceived the said act to be unconstitutional."

When the struggle for the rights of Englishmen took on the form of a struggle for independence, the same idea of judicial control of the legislative power was taken up by the leaders and asserted more broadly still. James Otis declaring, in his great argument against the writs of assistance, that an act of Parliament "against the constitution is void," that "an act against natural equity is void," and that "if an act of Parliament should be made in the very language of this petition it would be void "; Mr. Justice William Cushing charging a Massachusetts jury that certain acts of Parliament are null; John Adams congratulating Cushing, and assuring him he was right; George Mason arguing against the validity of a Virginia law providing for the sale of the descendants of Indian women as slaves, because it was contrary to natural right and justice, were but so many men announcing another self-evident truth of which in time the people grasped the meaning. But it was not till the colonies had become States, with written constitutions of government, that the courts began the continuous practice of controlling legislation by deciding laws unconstitutional. Even then they did so with great reluctance. One of the earliest, if not the first, of this long line of decisions was made by the Supreme Court of New Jersey in a case argued in November, 1779.

The proximity of New Jersey to the British army on Staten Island and in New York afforded an opportunity for trade with the enemy, which many of the inhabitants gladly seized. That a stop might be put to this shameful intercourse, the Legislature in 1778 made it lawful for any person to seize provisions, goods, wares, and merchandise coming from any place in possession of the subjects of troops of King George, and take the articles and the individual in whose hands they were before a justice of the peace of the county. Should either party demand it, the justice must grant a jury according to an act of 1775, which limited the number of jurors to six and made their decision final. In the course of a few months a militia major named Elisha Walton seized a quantity of goods of very considerable value in the posses

sion of John Holmes and Solomon Ketcham, whom he accused of bringing them from within the enemy's lines.

The cause was laid before a justice and six jurors, and a verdict given for Walton. But, while the suit was pending, the defendants secured a writ of certiorari to the justice, John Anderson, and after some delay the case came up before the Supreme Court sitting at Trenton, in the autumn of 1779, when counsel for the plaintiff demanded a reversal of judgment, "because the jury sworn to try the case consisted of six men only, when by the laws of the land it should have consisted of twelve men "--because the law, in short, was against the constitution of New Jersey and therefore void. Twice the court deferred decision, and ten months passed before Chief-Justice Brearley reversed the judgment of the lower court and restored the goods.*

Two years later another case arose under a Virginia law of 1776, which deprived the Governor of authority to pardon treason. This left the power with the Assembly, and in 1782 the House of Delegates extended pardon to three men guilty of treason. The Senate did not concur. But when the attorney-general moved that execution of judgment be awarded, the prisoners pleaded pardon by the House of Delegates, and the case, because of its novelty and difficulty, went before the Court of Appeals. There one side denied the validity of the pardon. It was, they held, contrary to the plain intent and meaning of the constitution, and therefore void. The other side maintained that even if the resolution were contrary to the spirit of the constitution, the court had no power so to declare. No decision was made. But the fiery statement of the chief-justice during the trial that, if the whole Legislature should overstep the bounds prescribed by the people, he would meet it, and, pointing to the constitution, would say, “Here is the limit of your authority, and hither shall you go and no further," and the remark of the reporter that the judges were of the opinion that the court could declare any act or resolution of the Assembly, or either branch of it, to be unconsti

* Holmes vs. Walton. The New Jersey Precedent. Austin Scott, the Ameri can Historical Review, April, 1899, pp. 456–469.