Holmes v. Walton as a Constitutional Watershed

As noted in the prior article, in May 1779, Major Elisha Walton ordered the seizure of a large quantity of silk belonging to John Holmes and Solomon Ketchum. The silk was almost certainly illegally purchased from Loyalists who acted as middlemen between British-held New York and Monmouth County farmers. Over the course of the war, militia parties or privateers seized the goods of dozens of Monmouth Countians who participated in the so-called “London Trade.” One seizure of grain, in January 1779, deepened the split between the county’s competing factions of Revolutionary leaders.

However, it was Walton’s seizure of the silks of Holmes and Walton that would permanently impact American constitutional history.  The case of Holmes v. Walton was first decided in 1780, and then reheard through 1783. The 1780 decision was the first known application of judicial review, through which a court determines a law unconstitutional and voids it. In the case of Holmes v Walton, the New Jersey Supreme Court would strike down an October 1778 law that authorized judges or township magistrates to validate the seizure of illegally traded goods with only the affirmation of a six-man mini-jury. Further, the law did not create a way to appeal the magistrate’s ruling.

Judge John Anderson of Freehold, with a six-man jury, upheld Walton’s seizure of Holmes’ and Ketchum’s goods. Lacking an appeal in the local courts, Holmes hired an attorney, William Wilcocks (formerly a judge advocate in the Continental Army) and requested a hearing before the New Jersey Supreme Court. Wilcocks never claimed that Holmes was innocent, but instead focused on violations of Holmes’ right to a fair trial. Broadly-speaking, Wilcocks advanced three arguments:

Jury Tampering: 

Wilcocks argued that Walton prejudiced the six-man jury, stating that "Elisha Walton did, at his own expense, and without the consent of said John and Solomon, treat with strong liquor the jury sworn to try this case, after they were unpaneled, but before they gave their verdict in the case." This argument was not persuasive to the Supreme Court. Though it might astound modern readers, attempting to curry favor with jurors and voters with liquor was accepted in the raucous democracy practiced in the 1700s.

Weak Evidence: 

Wilcocks argued for reversal "because there was not any evidence offered at the trial which proved that such wares & merchandize came from the enemy.” He argued that hearsay evidence was used to decide the case, rather than documentary evidence such as British marks on the silks or receipts demonstrating purchases made in New York. These arguments did not persuade the Supreme Court; 18th century cases were frequently decided on hearsay evidence.

The Right to a Fair Trial: 

The strongest of Wilcocks’ arguments concerned Holmes’ right to a jury trial. The New Jersey Constitution of 1776 (co-written by John Covenhoven of Freehold) included this statement: “The inestimable right of trial by jury shall remain confirmed as part of the law of this colony without repeal forever.” Wilcocks argued that the right to a fair trial "could not be warranted by a jury of the six" (when twelve was the long-established number for a jury). Further, Holmes did not have a path for appeal other than the New Jersey Supreme Court. The Supreme Court, by hearing Holmes’ case, implicitly agreed with Holmes’ plea for an appeal. Wilcocks concluded that seizure of Holmes’ silks “was contrary to the Constitution, law and practices of the land."

Well before the decision was issued, it was apparently understood that Wilcocks’ arguments were persuasive. In December, Governor William Livingston wrote Nathaniel Scudder, Monmouth County’s most prominent political leader, that:

The cause between Walton and Holmes is of the greatest moment and I hope none of the judges have given their opinion, I should be sorry that the supposed event of the controversy should give the Tories any cause of triumph; but the judges, you know, are bound to determine the law in whosoever favor that may appear to be, let the consequences be what they may.

Holmes v. Walton was decided by the New Jersey Supreme Court on September 7, 1780—almost a year after it was first argued. With Chief Justice David Brearly of Upper Freehold presiding, it ruled in favor of the plaintiffs, Holmes and Ketcham. The ruling argued that the New Jersey Constitution and English common law required a twelve-man jury and that legal decisions were subject to appeal. The legislature exceeded its constitutional authority by interfering with these rights. The court also ruled that the "said plaintiffs be restored of all things."

The New Jersey legislature implicitly agreed with the ruling by passing a new law that required the magistrate or judge to convene a jury of twelve, when requested, to decide on the legality of the seizure. Legal historian, Philip Hamburger, who wrote the defining legal work on Holmes v Walton, argued that the Supreme Court delayed its decision in order to give the legislature time to revise its unconstitutional law: “There was real danger that a judicial reversal would become a political and military reversal and although the judges would alter their decision, they were willing to defer their decision until the government prepared itself for the judgment.”

Additional Legal Moves

Prior to the Supreme Court issuing its decision, Walton moved to rehear the seizure of silks in a court of law. In July 1780, the Monmouth County Court of Common Pleas heard a complaint from Elisha Walton. His attorney claimed that the Supreme Court "reversed the judgment given by John Anderson, Esq." (the official decision would not be issued until September) and asked the court to "correct errors in the record and process" by rehearing and upholding the seizure. Walton argued that the court had not found Holmes and Ketchum innocent, but only took issue with the process by which they were tried. A proper trial could correct the matter.

The Monmouth Court of Common Pleas did not immediately hear the case. It was not until July 1781 (nine months after the Supreme Court decision), that the county court moved to re-hear the case. A full jury was empaneled and several witnesses were called: Andrew Bowne, Elias Covenhoven, William Hilsey, John James, Daniel Ketchum, Thomas Henderson, and Phoebe Ketchum. The result of this trial is not documented, but the decision likely was against Walton. The New Jersey Supreme Court agreed it would hear an appeal in late 1781.

In May 1782, the New Jersey Supreme Court re-heard Holmes v Walton, but this time the decision of the Court of Common Pleas was on trial. John Craig, Monmouth County's Commissioner of Bails and Affidavits, forwarded several papers to the Supreme Court, including:

1. Andrew Bowne's testimony in favor of Walton, claiming that he heard from Holmes that the wagon carrying the silks was on its way to Daniel Ketchum's house (to elude capture by the militia) when it was seized;

2. Depositions from Moses Mount, Daniel Herbert, William Thomson, and Aaron Davis that, at the July 1781 retrial in Freehold, one of the witnesses, Widow Holmes, "should have said something about the wagon & goods going to Daniel Ketchum's but it being objected against as illegal, as hearsay" by Wilcocks, the important testimony never offered;

3. Statements from William Morison and Jonathan Forman complaining that William Wilcocks’ frequent objections and numerous invoking of "bills of exception" prevented a full disclosure of evidence;

4. A statement from Andrew Bowne that his previous testimony was cut short by Wilcock's frequent objections and bills of exception, obstructing the proceeding.

The Supreme Court apparently did not issue a decision in 1782, because it heard from seven witnesses a year later in May 1783. At this time:

1. Andrew Bowne testified that "in May 1779, lived at Middletown near the lines" when he carried the silks to Holmes & Ketchum. "He had never of John Holmes purchasing the goods from Boston" as Holmes claimed and "Holmes was not a merchant";

2. John James testified, he "lived at Daniel Ketchum's” and witnessed Ketchum loading the silks onto a wagon and taking the back road in an apparent attempt to avoid capture;

3. Elias Covenhoven testified in support of Holmes, stating that Holmes never indicated "the goods were carried from N. York";

4. Phoebe Ketchum testified that she "rode in the wagon with her brother [Daniel]” and recalled Solomon Ketchum and Obadiah Bowne driving the wagon "along the back road" to escape seizure. When stopped, they lied about the contents in the wagon;

5. Thomas Henderson testified that he examined the goods and "they appeared to be such as are usually imported from Great Britain... and the quantity was greater than ever this deponent had seen in any country store." He further stated that the £20,000 valuation of the silks was "extraordinary" because "goods of this were exceedingly scarce." And he stated that Ketchum picked a road that "went unused" though he was "well acquainted with both roads";

6. Daniel Ketchum testified that he was moving the goods to a house in Freehold because of "an alarm at Middletown" and that the goods were purchased "honestly and righteously";

7. William Hilsey testified that the goods "appeared imported and were of the first quality."

It is not known if the Supreme Court reversed the decision of the Monmouth Court of Common Pleas.

Beyond New Jersey, Holmes v. Walton, according to legal historian Hamburger, is the “earliest precedent for judicial review” in the United States. It created a blueprint for judicial review by which a court can determine a law unconstitutional. A generation later, in Marbury v. Madison, the United States Supreme Court asserted judicial review as its power. It is remarkable that a London trading incident in Monmouth County played such an important role in U.S. constitutional history.

Caption: David Brearly presided over the New Jersey Supreme Court as it moved to be the U.S. first court to hold a law unconstitutional. He delayed the ruling to allow the Legislature to amend the law.

Related Historic Site: The Supreme Court of the United States (Washington, DC)

Sources: Philip Hamburger, Law and Judicial Duty (Cambridge: Harvard UP, 2008) p 407-20; Supreme Court Records, New Jersey State Archives, #18354; William Livingston to Nathaniel Scudder, Carl Prince, Papers of William Livingston (New Brunswick: Rutgers University Press, 1987) vol. 3, pp. 279-80, 281 note; The Library Company, New Jersey Votes of the Assembly, May 13 and May 20, 1780, p 187-195; Monmouth County Common Pleas Minutes, July 1780, Monmouth County Archives; Austin Scott, "Holmes v. Walton: The New Jersey Precedent", American Historical Review, 1899, vol. 4, pp 7-8; The Library Company, New Jersey Votes of the Assembly, December 8, 1780, p 52; Supreme Court Records, New Jersey State Archives, #44928.