During the American Revolution, North Carolina adopted legislation that made possible the confiscation of British sympathizers’ property. When the war ended, Congress, in the Treaty of Paris of 1783, agreed to return confiscated property to its original owners. The issue of Loyalist property, however, was controversial, and Congress had little power to enforce the provision in the states. In 1785, for example, the North Carolina legislature barred state courts from hearing lawsuits by former Loyalists trying to recover their property.
Before the Revolution, Samuel Cornell had been a wealthy merchant in New Bern and a member of the governor’s council. Once the war began, he remained loyal to the crown, and in August 1775 he left North Carolina for England. Trying to return to New Bern in December 1777, he was not allowed to land, because he had refused to take a loyalty oath to the new government. In an attempt to avoid the confiscation of his property, he deeded it to his wife and daughters and then left for New York.Â Despite the transfer of title, Cornell’s property was confiscated and sold to another New Bern merchant, Spyers Singleton. The proceeds from the sale of Cornell’s house supposedly paid the expenses of the North Carolina delegates at the Constitutional Convention in Philadelphia.
In 1787, Cornell’s daughter, Elizabeth Cornell Bayard, filed a lawsuit to recover the property her father had deeded to her. The litigation attracted some of North Carolina’s most distinguished lawyers. Samuel Johnston, soon to become governor, filed the lawsuit on her behalf, and another future governor, William R. Davie, assisted Johnston in prosecuting the case. Singleton retained the services of former governor Abner Nash and Alfred Moore, who later served on the United States Supreme Court. It is unclear exactly what role James Iredell played, but Singleton apparently tried to hire him. By the time the case was decided, Iredell may have been participating as essentially an amicus curia (a friend of the court representing his own position). Iredell was known to oppose personally the confiscation acts.
Bayard’s lawyers argued that the 1785 act violated the provision of North Carolina’s 1776 constitution guaranteeing a citizen the right to a jury trial in a case involving a potential loss of property rights. The court of conference, the predecessor to the North Carolina Supreme Court (established in 1799), and its three judges—Samuel Ashe, Samuel Spenser, and John Williams-—heard the case. Bayard’s complaint presented the judges with a dilemma. The legislation at issue seemed clearly inconsistent with the spirit of the Treaty of Paris and the letter of the state constitution, but there was almost no precedent in the 1780s for a court to refuse to enforce a legislative act. Nash accordingly moved to dismiss the lawsuit. The court wanted to encourage a settlement or to delay a decision long enough to give the legislature an opportunity to repeal the confiscation laws. During the November 1787 legislative session, the lawmakers investigated the court’s refusal to dismiss the case. The General Assembly failed to repeal the acts, but it ultimately concluded that the court had a right to hear Bayard’s suit. In the meantime, the highly respected Iredell had published an essay entitled “To the Public,” in which he defended the power of judicial review.
After the parties proved unwilling to settle the case, the court of conference reluctantly concluded that it could not enforce a law that was inconsistent with the constitution, as the 1785 statute was. The case then proceeded to trial. The court eventually ruled against Bayard, however, and held that her father had been an alien and had never been eligible to own property in the first place. The decision was controversial. Richard Dobbs Spaight, a North Carolina signer of the United States Constitution, spoke for many when he denied that the courts had the power to overturn legislation as unconstitutional, and a displeased legislature delayed pay raises for the judges. Yet Bayard soon served as precedent for the exercise of judicial review by other American courts, partly because it was one of the first such opinions to be published and widely circulated among lawyers. By the early 1800s, the practice of judicial review would become common in the United States.