James Iredell’s careful apologia for the American cause—a teaching which he developed in a series of essays and public letters written from 1773-1778—clearly contains a foreshadowing of what he thought should be in a constitution for the United States…
James Iredell was born at Lewes, Sussex County, England. He was the eldest of the five sons of Francis Iredell, a Bristol merchant, and Margaret McCulloh Iredell, originally of Dublin. Young James came to the New World in 1768 because, after his father suffered a stroke in the mid-1760’s, it was necessary for the boy to leave school and accept an appointment arranged for him by his Irish cousins who owned a considerable property in North Carolina. James’ salary of £30 as Comptroller of the Customs in Port Roanoke (Edenton) went directly to his parents. The boy himself lived off port fees (about £100 per annum). After presenting his credentials to the Board of Customs Commissioners in Boston, this ambitious stripling journeyed southward swiftly. There, if he had no fortune, he soon began to make one, moving in a circle of gifted friends to whom he was soon firmly attached. This circle stood behind him for the remainder of his life and defined his place in Southern society, the political life of his state and (finally) American politics at large.
In Edenton Iredell read law with Samuel Johnston—nephew of a former royal governor, the town’s most prestigious citizen and later himself a governor of the state of North Carolina. In 1773 Iredell married Hannah Johnston, the sister of his mentor. In 1770 he had received a license to practice law in the lower courts of the colony. In 1771 his application to practice in the superior courts was approved. In 1774 he became Collector of the Port at Edenton. By that time he was already serving as Deputy King’s Attorney for Hertford, Perquimans, and Tyrrel counties.
Furthermore, because of his social skill, energy, and cheerful application to business (to say nothing of his Johnston and McCulloh family connections), he had prospects of other preferment. Yet even as early as 1774, along with his brother-in-law, he had begun to drift with the rest of the Albemarle community toward a decision for resistance to abuses of British authority over the North American colonies and, finally, toward independence. Iredell understood government in North Carolina to rest on the charter given to that commonwealth by the Crown. The colony was thus under the ancient English constitution by way of George III, by the extent to which the entire English tradition was subsumed in its charter and in the operation of the common law on these shores, but not through its submission to Parliament for the direction of its internal affairs.
With the Albemarle society, Samuel Johnston, and his gifted friends (Joseph Hewes, Archibald Maclaine, Hugh Williamson, John Johnston, William Hooper, Richard Caswell, and then later, Thomas Burke and William Richardson Davie) young Iredell was carried toward being self-consciously American by a process which seems, in retrospect, inexorable. Out of the service of George III (April 1776) he rose steadily toward that climactic moment in his career when, in July 1788, it fell to him to argue the principal case for the ratification of the proposed Constitution of the United States: to speak in North Carolina for that “more perfect Union” which would replace the British imperial system—as Americans understood that volatile combination in the moment of their struggle to escape from it.
Before he undertook to shape its meaning, James Iredell paid a great price for his American citizenship. He was disowned by a wealthy uncle in the West Indies—an uncle whose heir he had been. Also he lost his powerful patrons in England and Ireland. Moreover, he was cut off from his closest relations, left for many years with only a tenuous connection through the mails. Finally, he was separated from a total culture which, as he wrote the King in 1777, he continued to cherish, feeling, even in self-imposed exile, “a strong attachment to my native country.” Edenton, his family and friends there, the regard for him which they expressed, made good Iredell’s losses, and transformed the young attorney, as he participated fully in the public life of North Carolina, into one of the representative Southerners of his time.
Iredell’s careful apologia for the American cause—a teaching which he developed in a series of essays and public letters written from 1773-1778—clearly contains a foreshadowing of what he thought should be in a constitution for the United States. In response to the Declaratory Act (1766), the Coercive Act (1774), and the “Declaration for Suppressing Rebellion and Sedition” (1775), the young lawyer from Edenton backed slowly toward the conclusion that Crown and Parliament would never agree to any restraint upon their powers of supervision over the colonies and that therefore they had forfeited all the authority over Americans they had once enjoyed.
And while he was withdrawing from the King’s no-longer-paternal protection, the entire Tidewater section of North Carolina, a very conservative community, was inwardly, often unknowingly, quietly, doing the same. As Professor Don Higginbotham has maintained, James Iredell wrote originally of his politics in the hope of preserving a connection with Great Britain, and also the liberty of his neighbors under the British constitution. In his “Essay on the Law Court Controversy,” his “To the Inhabitants of Great Britain,” “The Principles of an American Whig,” “Causes of the American Revolution,” “To His Majesty George the Third, King of Great Britain,” and “To the Commissioners of the King of Great Britain for Restoring Peace, etc…,” he envisaged an empire of equal parts, like what came later with the British Commonwealth of Nations. Only a small change in the colonial pattern before 1763 was needed, but no less would serve. As early as September 1773 he had written, “I have always been taught and, till I am better informed, will continue to believe, that the Constitution of this country [North Carolina] is founded on the Provincial Charter, which may be considered the original contract between King and inhabitants.” In the same spirit, looking back on relations between colonies and mother country since the first English settlement on this continent, he later informed King George III (as he withdrew his allegiance from that prince) that there would have been no Revolution “if your Majesty had disliked innovation as much as we did.”
The great failing of the British system, according to James Iredell, was that it did not include a judiciary powerful enough to protect its constitution from the abusive acts of Crown and Parliament. Divided sovereignty, enforced by a judiciary speaking for an antecedent (and truly sovereign) fundamental law, provided a formula for preserving both liberty and civil order. Such an argument Iredell may have learned from his friend William Hooper, who in 1774 wrote to the young immigrant from Bristol of a hope for setting up on these shores “a British constitution purged of its impurities.” But whatever its source, it is in keeping with the point of view which he affirmed throughout his public life. For well before most Americans, James Iredell came to believe that what we now call judicial review is essential to any hope for a government of laws. Functioning as a private attorney, he established the doctrine in North Carolina in the 1787 case of Baynard v. Singleton, and affirmed it again at every opportunity.
Looking back on a war fought more against the “700 or 800 Tyrants” of the House of Commons than the despotism of a monarch, Iredell in “An Address to the Public” wrote:
We had not only been sickened and disgusted for years with the high and almost impious language from Great Britain, of the omnipotent power of the British Parliament, but had severely smarted under the effects. We felt, in all its rigor, the mischiefs of an absolute and unbounded authority, claimed by so weak a creature as man, and should have been guilty of the basest breach of trust, as well as the grossest folly, if in the same moment, when we spumed at the insolent despotism of Great Britain, we had established a despotic power among ourselves.
Because of what he had learned as an Englishman in America, he wished no system of legislative supremacy on these shores. Instead, even with respect to North Carolina, he insisted that “it has ever been my opinion that an act inconsistent with the [state] Constitution was void, and that the judges, consistently with their duties, could not carry it into effect. The Constitution appears to me to be a fundamental law, limiting the powers of the legislature, and with which every exercise of those powers must, necessarily, be compared.” In 1783 he observed, “In a Republic… the Law is superior to any or all Individuals, and the Constitution superior even to the Legislature, of which the Judges are the guardians and protectors.” Legislative supremacy was an idea of democratic, doctrinaire egalitarians. And Iredell was assuredly not of that company.
What Iredell thought of the “back-country men” and ordinary fellows who, with the Revolution, injected themselves into North Carolina politics and, once there, failed to show the deference to the local gentry, which had been customary he suggested in his satiric “Creed of a Rioter.” Like the Regulators of 1774 (called by Iredell a “parcel of banditti” because they attacked the rule of law itself, and not just the misuse of the courts), “rioters” could best be identified by their aversion to gentlemen and preference for the natural man, by their discovery of something positive in ignorance, disreputable origin, bad manners, selfishness, and resentment of every legitimate form of merit and distinction. The worst of this radical spirit was to be found “at the North” in “masses” with a “tendency… to an unmixed democracy.” To the contrary, in the South there was “conservatism” in “an attachment to representative republicanism”—a view which, in those territories, “is more manifest and confirmed every day.”
As a follower of Edmund Burke, what fully provoked Iredell was not revolutionary practice but a “philosophy of revolution”—a theory of revolution as a positive good, such as in 1789 flowered in France. At the end of his life Iredell told a Philadelphia grand jury that, if released to move without a check among the people, such a doctrine would destroy their country: would work to dehumanize them as did, with George III the belief in his own prerogative in releasing an anger toward Americans which allowed him to arm Indians and slaves and to summon mercenaries to kill his colonial “children.” These remarks remind us of the conservatism and distance from general propositions or Jacobin enthusiasms in his contributions to the revision of the laws of North Carolina—a minimal revision, which emphasized continuity, not the changes that might come; which, with the new North Carolina constitution, restricted the meaning of revolution there. In them we recognize the Iredell who spoke against a priori politics in the ratifying convention in Hillsborough. Moreover, they recall Iredell’s impatience with the Reverend David Caldwell’s suggestion in the same convention that his colleagues first draft a general statement concerning the aboriginal rights of man (“fundamental principles”) and then measure the Constitution against these philosophical postulates. As a Federalist spokesman, Iredell insisted that this was not the proper method for lawgiving. In Iredell’s view, to begin such deliberations with arguments from definition concerning the rights of man and then attempt to decide on the particulars of federal policy by measuring them against the generic distinctions on which delegates might agree at a higher level was to go against “the very principle that we are now met to consider of the Constitution before us.” From a passionate admirer of Edmund Burke we might expect such doctrine. From Iredell one heard nothing else.
While attempting to make the old inherited law into a functioning reality in his state and to implement the conservative constitution made to support it by his brother-in-law and their friends, James Iredell accepted several offices from the government of North Carolina not long after it came into being as a free commonwealth. In 1777, Iredell became State’s Attorney for Chowan County. In 1777-1778, he was briefly Judge of the State Superior Court. From 1779-1781 he accepted from Governor Richard Casswell an appointment as North Carolina Attorney General—in which labor he was obliged to confront the problems of Loyalism, invasion and peculation, while at the same time being kept away from most of his lucrative private practice. Iredell left politics behind in 1781, but continued to write and speak in behalf of stability in the public life: against the blandishments of British authorities, against violations of the treaty of peace, fiat money, suspensions of contract by law, failure to support the Continental Congress, and indifference to the inability of the general government to defend our shores. Though he liked the high spirits of the people of his state, by what he saw of political life in North Carolina, he grew to be more and more suspicious of democracy and convinced that “there must be some restriction on the right of voting.” “Poverty,” said he, “tempts ordinary men” to vote themselves the property of their neighbors. By 1788 Iredell was a trusted figure. In that year he was selected to be President of the Council of State. Out of the same authority and from his experience in state government he performed at the top of his bent in defending the handiwork of the Great Convention.
Before Iredell moved to the front among the Federalist orators urging ratification at Hillsborough—a talented group who knew they were going to lose the vote and therefore set out to make a record and lay down a teaching, a bit of political drama which would perhaps be useful in influencing another North Carolina convention, one certain to be held at a later date—he wrote, under the name of “Marcus,” another political essay, “Answers to Mr. Mason’s Objections to the New Constitution Recommended by the Late Convention of Philadelphia.” This piece was very well received for describing the Constitution as a moderate document presenting no danger to the South: a document promising chiefly what the Antifederalists said suited them well enough. In the debates proper, Iredell argued as he does in answering Mason’s eleven points. But in the debates he seems always to remember that his audience is not simply the surly Antifederalists, but rather the whole people of North Carolina who must be given reasons before they will agree to a federal bond stronger than what the Articles of Confederation can supply.
Iredell’s rhetorical task in the July 21-August 4, 1788 convention—the first of two gathered in North Carolina “for the purpose of deliberating and determining on the proposed Plan of Federal Government”—was to put the Antifederalists between the horns of a dilemma where they must either surrender their position or admit that they anticipate a complete separation of their state from the other twelve connected to them by the Articles. There would be only one chance for admission into the Union. Of course, the Federalists, always exaggerated when they employed this “all or nothing” argument, a reading of the situation which presupposed the desire for a continuing connection of some kind still to be found in each of the states.
Moreover, they were of course correct in this assumption since, after defeating the Constitution in July and August of 1788, North Carolina voted for it in Fayetteville on November 21, 1789. But to insist that there were only two choices in Hillsborough was a way of cutting through all of the trivial criticism of the Great Convention and its product. The rest (and most conservative part) of his appeal was calculated to calm Antifederalist fears of overgovernment: that the Constitution might be much more of a threat to American liberties than the machinations of Whitehall; that silence concerning the restrictions upon the national authority might lead to a discovery of implied powers. Iredell as defender of the Constitution affirms that “no power can be exercised but what is expressly given.” “What is not enumerated is not granted.” Any citizen with “the Constitution in his hands… may see if a power claimed is enumerated. If it is not, he will know it to be a usurpation.” In a “confederation” of “thirteen governments” joined “upon a republican principle,” Iredell had confidence that a separation of powers could be compatible with a modest increase in federal authority and the continuing “sovereignty of the states.” But if “anything in the Constitution tended to the annihilation of the states… it ought to excite resentment and… execration.” As Justice Iredell, his opinions on these issues did not change—which made him a very difficult Federalist.
James Iredell was appointed to the High Court on February 10, 1790. The published transcript of his performance in the first North Carolina ratification debates, along with his pamphlet reply to Mason, had given him a following among Federalists throughout the country. Yet, once seated, Justice Iredell, though a great student of the law, was nothing like Chief Justice Jay of New York or Justice James Wilson of Pennsylvania; and from this distinction we learn a good deal about Southern Federalism and why it disappeared so rapidly once President Washington left office. In specific, Iredell proved himself to be very different from his Yankee colleagues on the original court. He insisted that no judicial power over “the internal policy or administration of the states” can be “pointed out” in the Constitution. In the case of Chisholm v. Georgia, (1793)—the first important reconsideration of the meaning of the federal system made by the judiciary after the Constitution had been adopted—Iredell stood alone. The issue in this matter was the desire of a South Carolina citizen to sue the state of Georgia. The other justices answered that Mr. Alexander Chisholm had a protected federal right to have his case heard. Iredell, speaking before his colleagues, denied that there were implied powers to cover such a claim and concluded “every state in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to powers surrendered;… each state in the Union is sovereign as to all the powers reserved.” To this language Iredell added that it was the function of Congress to set limits to the jurisdiction of the Supreme Court—an issue much debated in our day. He was the first of the great judicial defenders of the strict view of our Constitution.
In his last years James Iredell warned his young kinsmen against the temptations of deism, labored to help his family, put his house in order, and reflected on that moment when “we shall be examined into a place where one day kings and subjects” shall be considered together on the basis of a single moral law. In quiet and without “dread,” he met his death at Edenton, in the house he had built for his wife and is buried with the Johnstons at their home, Hayes plantation. In his rectitude, caution, and firmness he resembles the Southern Whigs of the 1860’s who, after doing what they could to sustain the Union, joined their neighbors in secession when Mr. Lincoln called for 75,000 troops and promised an invasion of the “rebellious” South.
This essay was originally published in the Third Quarter 1989 issue of Southern Partisan magazine.
Republished with gracious permission from Abbeville Institute (June 2018).
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