On March 22, 1765, the Stamp Act was passed in the House of Commons by a vote of 205 to 49. The Act caused both anger and resentment in the colonies – not so much because of its imposition of a tax, but rather because of its manner of enactment and means of enforcement. The colonists believed that it violated their rights as Englishmen. In Massachusetts John Adams claimed the Act was “utterly void, and no binding Force upon us; for it is against our Rights as Men, and our Privileges as Englishmen,” “an Act made in defiance of the first Principles of Justice.” 1 Adams based his position on the argument used by Lord Edward Coke that “Magna Charta is such a fellow that he will have no sovereign” in Dr. Thomas Bonham v. College of Physicians. 2
In Virginia two men protested the Act’s passage in the strongest of words. The first was Patrick Henry, a young lawyer who had recently been elected to the House of Burgesses and was the author of the Virginia Resolves; the second was Richard Bland, a well-respected member of the House of Burgesses and author of the pamphlet An Inquiry into the Rights of the British Colonies. 3
The words of Henry and Bland were powerful, but alone did not bring about public (or official) action. The Sons of Liberty had already “convinced” each stamp distributor to resign his position; this was done by threatening the distributor’s life or the destruction of his property, but not by public (or official) action. Individuals were called out or intimidated for refusing to comply with non-importation efforts; courts as well as ports were closed. All trade and legal business came to a halt. Throughout the colony of Virginia, courts either refused to conduct any business that required stamps or conducted only business that was absolutely necessary and claimed that there were no stamps available. It was the Northampton County Court alone that took public (or official) action. It occurred on February 8, 1766.
The county of Northampton is located on Virginia’s eastern shore. In January of
1766, the Northampton County court, like the courts in many other colonies, had refused to open, but by the end of the month, after “repeated complaints of the inhabitants for want of a dew distribution of justice, ” the justices “resolved, from the necessity of the case [load], to open the Courts, and proceed to business, as usual.” 4
In February, when the County Court opened, the clerk and officers found themselves with the same dilemma they had faced before the Court closed – to use or not use stamped paper. They worried about their liability and the constitutionality of the recorded rulings if they failed to comply with the Stamp Act. To once and for all resolve the problem, they moved for an opinion from the bench as to whether the Act was binding on Virginia and whether “they the said Officers should incur any penalties by not using Stamp Paper.” Under the laws of Virginia a decision handed down from a county bench made up of seven justices was given “full faith and credit” by all of the county courts of the colony. The Northampton County bench was composed of five justices, Littleton Eyre, John Wilkins, John Bowdoin, Nathaniel Savage, and John Stringer. After adding two “special justices,” Severn Eyre (Littleton’s son) and John Harmonson, to the bench, on February 11, Griffin Stith, clerk of the court, announced the unanimous ruling by the justices:
On the motion of the clerk and other officers of this court praying their opinion whether the act entitled ‘An Act for granting and applying certain Stamp Duties and other Duties in America,’ etc., was binding on the inhabitants of this colony, and whether they, the said officers, should incur any penalties by not using stamped paper agreeable to the directions of the said act, the court unanimously declared it to be their opinion that the said act did not bind, affect, or concern the inhabitants of this colony, inasmuch as they conceive the same to be unconstitutional, and that the said several officers may proceed to the execution of their respective offices, without incurring any penalties by means thereof, which opinion this court doth order to be recorded. 5
This action was remarkable. It was the first time in America that the principle of the “nullifying power” of the judiciary was exerted over a legislative act, specifically a Parliamentary statute. 6 What the House of Burgesses was hesitant to say publically (or officially), a court of minor jurisdiction declared – that the Stamp Act was not binding and unconstitutional. Also, the ruling did not merely decide the right of the colonists of Northampton County, but of all the colonists of Virginia.
In a letter to James Madison dated December 11, 1765, Edmund Pendleton, future president of the Virginia Court of Appeals and current justice in Caroline County, wrote that it would be mistake if the courts closed their doors completely because “the appearance of courts may convince the people that there is not a total end of laws tho’ they are disabled to act in some instances.” 7
A second letter to James Madison shortly after the Northampton ruling stated,
We must resolve to admit the stamps or to proceed without them, for to stop all business must be a greater evil than either … were I applied to for an attachment, or any other thing within my office out of court, I would grant it at the party’s risque as to the validity of it, for I am not afraid of the penalty, at least so much as breaking my Oath.” Pendleton, when confronted with an unconstitutional statute, understood his obligation as one who had taken “an oath to determine according to law. 8
He did, however, fear that the opening of the courts might lead to the governor revoking the commissions of the judges “and as none that are fit for it will, the others dare not succeed them, a total [de]privation of magestracy must follow,” such that peace could not be kept.” The personal or public position of the governor was irrelevant. He knew that if he re-opened the courts, his action would be considered a repudiation of the Act.
The justices in Westmoreland County on September 24, 1765, reached a similar opinion, but they declined to take public (or official) action:
The act for establishing Stamps in America … will impose on us a necessity, in consequence of the judicial oath we take, of acting in conformity to it’s direction, and, by doing so, to become instrumental in the destruction of our country’s most essential rights and liberties. 9
The justices in Culpepper County on October 21, 1765 agreed in principle but also chose not to take public (or official) action:
We are perswaded that we shall at the Same Time be permitted to lay before your honour these Reasons which have determined us to Resign the Commission of the peace under which we have been Sworn to set as Magistrates of this Colony.
It Seems to be the Unanimous opinion of the People of America (And of a few in England) That the late Act of Parliament by which a Stamp Duty is imposed on the Americans and the Court of Vice-Admiralty appointed ultimately to Determine all Controversies which may arise Concerning the Execution of the said act is Unconstitutional and a high Infringement of our most valuable Privileges as British Subjects who we humbly apprehend cannot Constitutionally be Taxed without Consent of our Representatives or our Lives or Properties affected in any Sivil or Criminal Cases whatsoever without first being Tried by our peers. 10
Twelve justices in Frederick County, Maryland, Court on November 23 rendered a similar opinion, but it was based first upon procedure and second on expediency:
It is the unanimous resolution and opinion of this Court that all the business thereof shall and ought to be transacted in the usual and accustomed manner, without any inconvenience or delay to be occasioned from the want of Stamped Paper … and that all proceedings shall be valid and effectual without the use of Stamps, and they enjoin and order all Sheriffs, Clerks, Counsellors, Attorneys, and all officers of the Court to proceed in their several avocations as usual, which resolution and Opinion are grounded on the following and other reasons:
1st. It is conceived that there has not been a legal publication yet made of any Act of Parliament whatever imposing a Stamp Duty on the Colonies. Therefore this Court are of opinion that until the existence of such an Act is properly notified, it would be culpable in them to permit or suffer a total stagnation of business …
2nd. As no Stamps are yet arrived in this Province, and the inhabitants have no means of procuring any, this Court are of opinion that it would be an injustice of the most wanton oppression to deprive any person of a legal remedy for the recovery of his property … 11
The judges in Accomack County, the only other county on the eastern shore, supported their fellow Northampton judges by warning lawyers “that any attorney neglecting to carry on his business in court, under pretence of wanting stamps, should have his suits dismissed.” 12
The opinion rendered by the seven justices of the Northampton County court on February 11, 1766 is little known and even less remembered for three reasons: first, the conservatives in the House of Burgesses wanted to calm the fervor that Henry’s resolutions and the court’s ruling had stirred up; second, Sir William Blackstone’s defense of the sovereignty of Parliament in his Commentaries was the prevailing position at the time, not Lord Coke’s; and third, by the time the ruling was published, the Stamp Act had already been repealed. 13
The notion of judicial review that is often referenced in regard to the ruling of the Northampton County court did not receive official recognition until 1782 in the Virginia Court of Appeals, Commonwealth v. Caton.
1 Josiah Quincy, Jr., Reports of Cases Argued and Adjudged in the Superior Court of Judicature of the Province of Massachusetts Bay between 1761-1772 (Boston: Little Brown & Company, 1865), 200-09.
2 T. B. Howell, ed., A Complete Collection of State Trials and Proceedings for High Treason and Other Crimes and Misdemeanors from the Earliest Period to the Year 1783 (London: T. C. Hansard, 1816), 3:194.
3 Richard Bland, An Inquiry into the Rights of the British Colonists (Williamsburg: Alexander Purdie, 1766).
4 Extract of a letter from Northampton county, in this province, January 31, 1766,” Virginia Gazette, March 7, 1766.
5 Minute Book No. 27, t29-32 (February 11, 1766), Court of Hustings of Northampton County, Court Records, Microfilm #50.
6 Jennings C. Wise, “The Sole Instance of Judicial Review of the English Constitution by a Colonial Court,” Virginia Law Review, Vol. 22, No. 1 (November, 1935), 106.
7 Massachusetts Historical Society, Proceedings, 2nd Series, 19 (1905), 109.
8 “Edmund Pendleton to James Madison, February 15, 1766,” in The Letters and Papers of Edmund Pendleton, 1734-1803 ed. David John Mays (Charlottesville: Virginia Historical Society, 1967), 1:23.
9 “To the Honorable Governor and Council, September 24, 1765,” Newport Mercury, November 11, 1765.
10 “The Justices of Culpepper County to Francis Fauquier, October 21, 1765” in The Official Papers of Francis Fauquier, 3:1281, supra note 40.
11 John Thomas Scharf, History of Western Maryland: Being a History of Frederick, Montgomery … Counties (Baltimore: Clearfield Company & Willow Bend Books, 1995), 1:122.
12 Pennsylvania Journal, March 20, 1766; Virginia Gazette, (Purdie), March 21, 1766.
13 Virginia Gazette, March 21, 1766; “Northamptoniensis,” March 24, 1766 and April 4, 1766.