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Holmes v. Walton (1780)

Last Updated: 2006

The case of Holmes v. Walton (1780), the first known use of the practice of judicial review, called into question a piece of legislation passed in 1778 by the New Jersey legislature. This legislation, passed to prevent trade and commerce with the enemy, made it lawful for the seizure of goods crossing enemy lines and for the prosecution of the perpetrators. The legislation further dictated that the justice, upon the request of either party involved, must allow a jury of six men to hear the case. The ruling on this case was then incapable of being appealed. On May 24, 1779, a justice of the peace of Monmouth County, New Jersey, and a jury of six men heard the case between plaintiff Elisha Walton and defendants John Holmes and Solomon Ketcham. The jury of six found Holmes and Ketcham guilty of violating the law.

However, Holmes and Ketcham appealed to the New Jersey Supreme Court on the basis that the initial legislation providing for a jury of six was unconstitutional under the provisions of the New Jersey Constitution. Arguing on why the initial ruling should be reversed, the defendants claimed that the New Jersey Constitution required a common law jury of twelve men, citing Section 22, which stated that “the inestimable right of trial by jury shall remain confirmed as part of the law of this colony without repeal forever.” The final section of the same Constitution required an oath of each legislator that he will not subscribe to any law or vote that would repeal or annul Section 22. The case of Holmes v. Walton was decided before the New Jersey Supreme Court under the direction of Chief Justice David Brearly on September 7, 1780. Finding in favor of the plaintiffs, Holmes and Ketcham, the court ruled that common law was understood to require a jury of twelve and that the legislature, in passing the seizure law, had indeed overstepped its constitutional authority by altering the right of jury that the Constitution had previously established. Despite protestations of the decision at the time, the public later accepted the Supreme Court’s verdict, as well as its authority to render it, and the legislature soon ratified the action of the judiciary by passing a law to require a jury of twelve on the demand of either party involved in the suit.

In the decision of Holmes v. Walton, the New Jersey Supreme Court laid the foundations for the practice that would later become known as judicial review in the famous federal case of Marbury v. Madison. Furthermore, the court challenged the notion of the supremacy of state legislatures held in the nation prior to the constitutional reforms. By ruling a legislative act null and void on questions of constitutionality, the New Jersey court also helped establish the republican notion of judicial independence from the popularly elected executive and legislative bodies that the founders would later adopt at the Constitutional Convention in 1787.

SEE ALSO: Original Jurisdiction of Supreme Court


Horace Davis, “Annulment of Legislation by the Supreme Court,” American Political Science Review 7, no. 4 (November, 1913): 541–87; and Austin Scott, “Holmes v. Walton: The New Jersey Precedent,” American Historical Review 4, no. 3 (April 1889): 456–69.