Judicial Review Comes to Mississippi, and Stays

Jimmy Robertson

Article by Jimmy Robertson Featured Author

Posted December 2015

The Road to Alexander 1 in 1983

No clause in the Mississippi Constitution confers upon the judiciary the authority to declare legislative enactments unconstitutional, and thus unenforceable. Nor was there any such clause in the Constitutions of 1817, of 1832, or of 1869.

Yet the practice of state constitutional judicial review has been bedrock for close to 200 years. State judicial exercises of judicial review have impacted the lives of thousands, if not millions of Mississippians.

In 1982, Attorney General Bill Allain went to court. He attacked a massive legislative usurpation of executive powers. The Supreme Court of Mississippi unanimously sustained General Allain’s case.

The Court traced its authority to adjudge this intra-state constitutional case back to an otherwise obscure decision made in 1823.2 In one of those nice fortuities of fate and history, Chief Justice Neville Patterson of Lawrence County found his footing in a less momentous Lawrence County case that was approaching its 160th birthday.

Runnels v. State presents a second fortuity. The core issue was whether a bottom rung court appointee could keep his job. Twenty years earlier another bottom rung judicial appointee’s struggle to keep his job in the District of Columbia set the stage for John Marshall’s justly famous opinion in Marbury v. Madison delivered in 1803.3

Straddling the turn of the year 1824–1825, Mississippi had a second and less elegant clash over the intra-state practice of judicial review. More than a few stuck their necks out in Cochrane & Murdock v. Kitchens and its aftermath, each in his way fueling, controlling or putting out the fire.

By February 1825, the Runnels principle of judicial supremacy in state constitutional law had not only endured, it had prevailed.

The Four Judge Supreme Court

In 1823–1825, four judges served on the Supreme Court.4 These included Chief Judge John P. Hampton of Wilkinson County, and Judges Powhatan Ellis of Wayne County and Richard Stockton, Jr., of Claiborne County. Judge Louis Winston of Natchez served until his death in August of 1824. Shortly thereafter, Judge Edward Turner, also of Natchez, began a long term of service on the court.

Judges Ellis and Stockton were front and center in Runnels and in Cochrane & Murdock. There is no record of dissent from the other judges as to any aspect of the two cases.

Judge Powhatan Ellis

Powhatan Ellis (1790–1863) was born and raised in Virginia.5 He was educated at what is now Washington & Lee University, at Dickinson College in Pennsylvania, and he studied law at William and Mary College in 1813–1814. Ellis moved to Natchez to practice law in 1816 and in short order moved easterly to Winchester, now a ghost town in Wayne County.

In time Ellis became an avid follower of Andrew Jackson. Our concern is with his first public office, that of Judge for the Fourth District, including service on the Supreme Court of Mississippi from 1818 until September of 1825.

Years later a eulogist recalled Ellis telling of those days, of “his journeys, as he and the lawyers practicing before him traveled on horseback from court to court, through a region in its primitive state, but thinly settled, and partly occupied by Indians — many of whom became his warm friends.”6

Historian James Daniel Lynch reported that “Judge Ellis was a pure and upright judge, and a popular and useful member of society; true to his friends and devoted to his official duties.”7 Lynch opined that Ellis’ “decisions are illuminated by his integrity, and his conclusions are just and correct.”8

Judge Ellis’ judicial product has otherwise drawn faint praise. U. S. District Judge Michael P. Mills cites the view of Ellis as “extremely indolent” to exclude him as the possible author of an unsigned opinion showing an enlightened (for the times) view of the rights of slaves.9

The Second Richard Stockton, Jr.

Richard Stockton, Jr. (1791–1827) grew up in New Jersey. His grandfather signed the Declaration of Independence.10 The first Richard Stockton, Jr., (1764–1828) was briefly a U. S. senator and later served a term as a congressman from New Jersey.11

The future Judge Stockton was a complex man. Bipolar would be a likely label today. He pursued as many dubious activities as he followed honorable paths. The second Richard Stockton, Jr., was educated at Princeton, A.B. 1810, where he graduated with “first honors.”12

Still at home, Stockton was described as “charming in manner, an able lawyer, when he chose to work, but more given to enjoying the advantages of his position than to accepting its responsibilities.”13 Other bad habits included gambling14 and in time, dueling.15

In his young adulthood, Richard Stockton, Jr., and his father are known to have quarreled. In his late twenties, Richard, Jr., abandoned his home and law practice in New Jersey and moved to Mississippi.

In 1880, James Daniel Lynch reported that “Judge Stockton was an eminent lawyer and a man of ability. He was remarkably modest and unassuming in his manners.”16 Governor Walter Leake appointed Stockton judge for the First District in August, 1822.

By 1823 Judge Stockton may have reconciled with his father back in New Jersey. He wrote his father that he was “on circuit,”17 no doubt referring to his holding court in trial level proceedings in Warren, Claiborne, Jefferson and Hinds Counties. Judge Stockton added that he had “the friendship of some of the best gentlemen in the state [of Mississippi].”18

In a later letter Stockton told his father “[t]hat the lawyers in that part of the country were so ignorant…that his attainments were ‘superior’ to theirs.”19

In the end, Richard Stockton, Jr., was his own worst enemy. He died in a duel with John P. Parson in New Orleans in early February of 1827.20

The Runnels Case Plays Out

In 1817, the Mississippi Constitution had been formally enacted and provided, in relevant part,

Each court shall appoint its own clerk, who shall hold his office during good behaviour, but shall be removable therefrom for neglect of duty, or misdemeanor in office, by the supreme court, which court shall determine both the law and fact.21

In 1822, Harmon M. Runnels was “regularly inducted into office, under all of the requirements of the act of 1821.”22

Soon thereafter, the legislature abolished the separate office of clerk of the probate court. The probate judge himself would thenceforth “enjoy all the rights, privileges and emoluments, and discharge all the duties which were of right appertaining to, and required of the clerk.”23

In time, the circuit court ordered Mr. Runnels to turn over all papers, books and records which he held as clerk to the probate judge. Mr. Runnels took offense. His case reached the supreme court in the December Term of 1823.

There seems to be no doubt but that Harmon M. Runnels took his office, call it register or clerk, and along with it the protections set out in Article V, Section 11. He was to “hold his office during good behaviour.” He could be ousted only “for neglect of duty, or misdemeanor in office.” No one suggested that Runnels had neglected the duties of his office or that he had committed a misdemeanor in office. Nor does there appear a charge that Runnels behaviour was anything but exemplary.

Runnels presented what today is known as an “as applied” constitutionality challenge. No one was questioning the legislative prerogative of passing a law abolishing the office of probate clerk and conferring those clerk duties on the probate judge himself.

Runnels, however, was in office. The Constitution spoke to the terms of his service and possible discharge. The question was whether Runnels could be ousted from office other than by the constitutional criteria.

The Court Rules for Runnels

Judge Ellis spoke with wording common to the times. He called the matter before the court “this momentous question,”24 not so much whether Mr. Runnels may be sent home, but whether he may be so sent for reasons other than those found in the Constitution. On the latter view Judge Ellis and the supreme court could “not feel insensible either as it regards the ‘magnitude of the case,’ or the delicacy of our situation.”25

Regarding the constitutionality of a legislative act, Judge Ellis said he had “on occasions more than one…expressed the diffidence and reluctance, and consequently ‘the caution and circumspection,’ with which I approach such investigations. I have repeatedly said it was unwise and inexpedient to declare law unconstitutional, where there is any doubt, and when they might be reconciled to the spirit, if not the letter of the constitution.”26

What is implicit is made more expressed when Judge Ellis adds “[b]ut, the people of this state have formed a paramount rule of action for themselves, and they have declared” the now familiar tripartite separation of legislative, executive and judicial powers.27

Judge Ellis held that Harmon M. Runnels was indeed being improperly discharged as probate clerk. He then had this to say: “If the Legislature in the exercise of an unlimited discretionary power, can overleap the barriers of the constitution,…then,…we shall, in the language of a distinguished statesman,[28] ‘be called upon to curse our revolution as a great fountain of discord, violence and injustice.’”29

Harmon M. Runnels had won his case.

Cochrane & Murdock Start a Ruckus

In June Term of 1824, the Supreme Court again undertook judicial review of recent legislation.

In January of that year, overriding the veto of Gov. Walter Leake, the General Assembly had passed a comprehensive “act to extend further relief to debtors.”30 Section 7 set out the process the sheriff should follow when holding an execution sale to satisfy a judgment debt. If the property could not be sold at least for two-thirds of its appraised value, the new law authorized the sheriff to “sell the same, to the highest bidder on a credit of twelve months, taking bond with good and sufficient security.”31 In other words, the judgment creditor would hold a secured debt payable in one year.

On April 4, 1822, Cochrane & Murdock had sued in the circuit court of Claiborne County and secured a judgment for an unpaid debt of Benjamin Kitchens. On February 11, 1824, several weeks after the new act became effective, a sheriff’s sale was held. No one bid two thirds of the appraised value of Kitchens’ property, viz., three yoke of oxen, a wagon, and one mare and colt.32 Claiborne County Sheriff Joseph Briggs then followed the new law and sold the property on one year’s credit, with proper bond and security.

Cochrane & Murdock applied to District One Circuit Judge Richard Stockton, Jr., for relief, asking that the sheriff be fined for an improper sale.33

Judge Stockton did not decide Cochrane & Murdock’s claim. Rather, he invoked a then accepted procedure and asked the Supreme Court to consider and answer the questions of law needed to decide whether Cochrane & Murdock’s motion had merit.34 The court agreed, held the new law unconstitutional, and fined Sheriff Briggs one hundred dollars because he made a “false and untrue return” on the writ of execution that the circuit court had issued.

The grounds on which the Supreme Court held the act unconstitutional and unenforceable were that it impaired the obligations of a contract, contrary to both the U. S. Constitution35 and the Mississippi Constitution.36

In practical effect, the Supreme Court told Sheriff Briggs he should have foreseen that the secured credit sale process in “the act further to extend relief of debtors” was unenforceable.

The Firestorm Breaks

Some legislators took offense.37 Gov. Leake’s veto had been overridden, and now his judicial appointee had held a part of the new act unconstitutional. A part of the problem may also have been that the Supreme Court published no written opinion,38 explaining why it did what to the legislators seemed so jarring. Moreover, fining Sheriff Briggs for following what he thought was the law seemed outrageous.

In January of 1825, Judge Stockton honored a House of Representatives committee summons to appear and explain the Court’s actions. Judge Stockton suggested to the committee that its proper question should be “whether the judges, in rendering their opinion, had been governed by impure motives, or had decided according to established law.”39

Judge Stockton then explained in writing why the Supreme Court found that the “act further to extend relief to debtors” was unconstitutional. He meticulously presented the facts of the case and the proceedings in the Circuit Court.40

Judge Stockton told the committee that the U. S. Supreme Court and the Court of Appeals of Kentucky had made similar rulings in cases involving similar state statutes.41 He added that these cases were “the only ones, that my memory, or the limited libraries in this town [Jackson] has [sic] enabled me to obtain.”42

In other words, Judge Stockton provided the House committee with the written opinion43 that the Supreme Court should have issued in the first place. At all points he showed courtesy, deference and respect for the House committee and the course upon which it had embarked, mistaken though he thought it was.

Judge Stockton assured the Committee that “[t]he motion to fine the sheriff was in strict conformity to the statutes, and the committee have, already, the opinion of the court in writing.”44

He added, “The opinion of the Supreme Court, which is in possession of the committee, was that…[the statute] was unconstitutional as to all contracts made previous to the passage of the law.”45 Though this latter question had not formally be placed before the Court, Judge Stockton told the committee “that while he was the junior member of the bench, he would give [his opinion] with great cheerfulness, and assure them that the other members of the bench joined him in [this] opinion.”46

The House Committee Takes Its Stand

The committee reported to the full House of Representatives, criticizing the Supreme Court on both points. Preliminarily, Chairman Joseph Johnson of Wilkinson County announced that “[t]he Committee cannot refrain from expressing their satisfaction at the frank and candid manner in which his Honor Judge Stockton (who was in this place [Jackson] on private business) manifested in making his Report, and communicating what information was in his power.”47

Substantively, the committee found no fault with the Sheriff Briggs. As respects the fine imposed upon the Sheriff, the committee do not hesitate to say it was unjust and illegal — for they cannot believe that any subordinate officer ought to be punished for executing any process which emanates from any competent authority — it is his duty to execute it, and not to judge of its legality.48

In other words, the sheriff is not a judge. In separation of powers parlance, the sheriff is exercising executive powers when he is called upon to conduct a sheriff’s sale.

The House committee also denied that there was a constitutionally legitimate principle of judicial review:

The committee knows of no power, either delegated or implied from the constitution, that authorizes the Supreme Court to make such a declaration of the unconstitutionality of any Law [sic] to suspend its operations; but must believe such power assumed and maintained on the grounds of Judiciary precedents alone.49

The committee’s position on this point, of course, is facially credible. A state legislative committee circa 1825 may not be faulted for its failure to understand the legal status and power of “judiciary precedents alone.” Nor may the committee be faulted for not understanding the implied nature of the power Chief Justice John Marshall found in Marbury v. Madison.

Of interest is the House committee’s apparent failure to consider a more discerning alternative view. Judge Stockton’s legal analysis of the particular question presented in Cochrane & Murdock may have been faulty, even if the constitutional principle of judicial review should be accepted.

Whether on grounds of propriety or competence we know not, but the committee chose not to match wits with Judge Stockton on the point of law. In point of fact the committee told the full House that “they could not, for a moment, entertain an idea that the Supreme Court were influenced in their decisions by any impure motive.”

Judge Stockton Resigns and Level Heads Emerge

On January 10, 1825, without stating his reasons, Judge Stockton tendered his resignation as Judge.50 This defused such hostilities within the House as may have been latent beneath the courtesies that had been exchanged by all parties.

Judge Stockton’s resignation showed that he was a man of proper humility and deference in the face of his co-equal department of state government. Shortly thereafter the same General Assembly appointed Stockton as attorney general of Mississippi.51

On February 4, 1825, sensing that something had to be done after all the back and forth over the preceding month, the General Assembly enacted that:

The judges of this state, when in the supreme or circuit courts, where they shall make any decision affecting the constitutionality of any law passed by the legislature, shall make out a full report of the case and decision thereon, and sign the same, and within twenty days thereafter, transmit a copy thereof, to the governor of this state, who shall immediately have the same published in some public newspaper, printed within the state for the information of the citizens thereof…52

The larger point in the end is that the constitutional practice of judicial review had survived. Assurance of its proper judicial stewardship was left to extra-legal human and public forces.

Reflections on the Birth of Judicial Review in Mississippi

There are a number of takeaway points from Runnels and from Cochrane & Murdock v. Kitchens, aside from the obvious — constitutional adjudications by the Supreme Court need to be written, well grounded, and made readily available to the public.

The propriety of the constitutional practice of judicial review does not seem to have been a concern for the remainder of the life of the Mississippi Constitution of 1817. Harmon M. Runnels set the stage for Judge Powhatan Ellis’ reasonable exposition of judicial review. Cochrane & Murdock provoked Judge Richard Stockton, Jr., to a ruling, both parts of which are subject to reasonable doubt on their merits — but not the authority to make some merits ruling on each point. Certainly this latter authority is sound to the legal mind.

Judge Powhatan Ellis wrote a nice opinion in Runnels. He then moved on to a more prominent and colorful career most of which was associated with first General and later President Andrew Jackson. Runnels v. State languished in Walker’s Reports unnoticed for 160 years.

When the story of judicial review and its beginnings in Mississippi is told, it often centers around Cochrane & Murdock v. Kitchens, Sheriff Joseph Briggs, Rep. Joseph Johnson and the House committee, and, of course, Judge Richard Stockton, Jr. Their back and forth within the House of Representatives in January of 1825 is well reported.

With Judge Stockton’s resignation, the matter was resolved peaceably. All moved on to other issues, albeit Attorney General Stockton’s good judgment soon failed him again, this time fatally.

Constitution makers in 1832, 1868 and 1890 had a shot at stripping the supreme court of the power of judicial review. None did so. It was fitting that in 1983 a native of Lawrence County would turn to the county of his roots and in Alexander remind us that

[a]s long ago as 1823, [Harmon M.] Runnels v. State, Walker (1 Miss.) 146, held it the duty of the judiciary to declare void any legislative enactment which may be repugnant to the provisions of the constitution and that this duty is paramount to the authority of the legislature.53
  1. Alexander v. State of Mississippi By and Through Bill Allain, Attorney General, 441 So.2d 1329 (Miss. 1983).
  2. Runnels v. State, Walker (1 Miss.) 146, 148 ** 2, 1823 WL 543 (1823).
  3. Marbury v. Madison, 1 Cranch (5 U.S.) 137, 170, 2 L.Ed. 60 (1803).
  4. The organization and practices of the supreme court were quite different in those days. See particularly the Act of June 29, 1822, Miss. Laws 76–85 (1822).
  5. The Powhatan Indians occupied the lands in coastal Virginia where the English landed and settled as Jamestown. Pocahontas is said to have been the daughter of a Powhatan chief.
  6. Eulogy entitled “Hon. Powhatan Ellis of Mississippi,” reproduced and online at https://archive.org/stream/honpowhatanellis00elli/honpowhatanellis00elli_djva.txt., page 9 of 30.
  7. James Daniel Lynch, The Bench and Bar of Mississippi 88 (1880).
  8. Id.
  9. Mills, Slavery Law in Mississippi From 1817–1861, 71 Miss. L. Journ. 153, 178 fn. 130 (2001).
  10. Richard Stockton, the signer, was born October 1, 1730 and died February 28, 1781.
  11. Stockton Family Historical Trust, at http://www.stockton-law.com/genealogy/stockton5.html.
  12. James Daniel Lynch, The Bench and Bar of Mississippi 92 (1880).
  13. Alfred Hoyt Bill, A House Called Morven; Its Role In American History, 1701–1954, at page 84 (Princeton University Press, 2015).
  14. Id. at page 85.
  15. Mississippi House Journal, pages 143–144 (Jan. 23, 1827).
  16. Lynch, supra.
  17. Bill, supra.
  18. Bill, supra.
  19. Id.
  20. For several versions of the story leading to the duel in early February of 1827, see https://en/wikipedia.org/wiki/Columbia_Springs, at page 4 of 10; http://www.nerc.com/~rfsesq/genealogy/stockton5.html; J. W. Stockton, A History of the Stockton Family page 38 (1881); Skates, A History of the Mississippi Supreme Court, 1817–1948, 97 (1973); Bill, supra, at page 85.
  21. Miss. Const. art. 5, §11 (1817).
  22. Runnels v. State, Walker (1 Miss.) 146, 148 ** 2, 1823 WL 543 (1823).
  23. Id.
  24. Id. at ** 1.
  25. Id.
  26. Id.
  27. Id.
  28. The “distinguished statesman” was Joseph Hopkinson, co-counsel with Daniel Webster before the Supreme Court of the United States in the Dartmouth College Case. Joseph’s father, Francis Hopkinson, was among the New Jersey delegation signing the Declaration of Independence.
  29. Runnels v. State, Walker (1 Miss.) 146, 148–149 ** 2, 1823 WL 543 (1823).
  30. Miss. Laws, ch. 74, pages 101–106 (January 23, 1824).
  31. Miss. Laws, ch. 74, §7, page 104 (January 23, 1824).
  32. Mississippi House Journal, page 69–70 (Jan. 11, 1825).
  33. The story of Cochrane & Murdock v. Kitchens and others is told in James Daniel Lynch, The Bench and Bar of Mississippi 92–97 (1880). See also a paper entitled “The Power of the Courts,” authored by Prof. Thomas. H. Summerville of the University of Mississippi, and presented to the Mississippi State Bar Association at its Annual Meeting held in Meridian on May 6, 1908. See proceedings of the meeting, at pages 69–70 (1908); see also Prof. Summerville’s “A Sketch of the Supreme Court of Mississippi,” pages 505–506 of The Green Bag, Vol. 11 (Sydney Russell Wrightington, et al.). Prof. John Ray Skates’ A History of the Mississippi Supreme Court, 1817–1948, pages 6–9 (1973), offers a slightly different version of the facts.
  34. Mississippi House Journal, page 75 (Jan. 11, 1825); see Blanchard’s Adm’r v. Buckholt’s Adm’r, Walker (1 Miss.) 64, 65, *1, 1818 WL 1237 (Miss. 1818); John Ray Skates, A History of the Mississippi Supreme Court, 1817–1948, page 6 (1973).
  35. U. S. Constitution, Art. 1, §10, cl. 1.
  36. Miss. Const. Art. VI, §10 (1817).
  37. Dunbar Rowland reported that both judicial review and debtor’s relief statutes were controversial at the time. Rowland, Mississippi, Comprising Sketches of Counties, Towns, Events, Institutions and Persons, Arranged in Cyclopedic Form, Vol. II, 734 (1907).
  38. At the time most decisions of the supreme court were announced orally. Only the judgment of the court on appeal had to be reduced to writing and certified to the clerk of the court in which the case had originated. Act of June 29, 1822, § 8, Miss. Laws page 78 (1822). The law did provide for a reporter to collect, print and publish those written decisions that might be “deemed useful” to be delivered to the clerks of all courts “for the use of said courts.” The reporter could also print and sell the reports to lawyers and others who might be interested. Act of June 29, 1822, §§ 37–39, Miss. Laws page 85 (1822). The first reporter, R. J. Walker, was appointed in 1828 and did not produce a volume of decisions until sometime in 1834. V. A. Griffith, The Reporter, 22 Miss. L. J. 37–39 (1950); James Daniel Lynch, The Bench and Bar of Mississippi 110 (1880); John Ray Skates, A History of the Mississippi Supreme Court, 1817–1948, page 5 (1973).
  39. Mississippi House Journal, page 69 (1825); James Daniel Lynch, The Bench and Bar of Mississippi 93 (1880).
  40. Mississippi House Journal, pages 69–70 (1825).
  41. James Daniel Lynch, The Bench and Bar of Mississippi 94–95 (1880).
  42. Mississippi House Journal, page 27, 68–71 (1825).
  43. Mississippi House Journal, page 69–72 (1825).
  44. Lynch, supra, at 96.
  45. Id.
  46. Id. At the time, Chief Judge John P. Hampton and Judge Powhatan Ellis were senior to Judge Stockton in time of service. Judge Edward Turner, however, had not come to the Court until the Fall of 1824, following the death of Judge Louis Winston on August 20, 1824, some two years after Judge Stockton assumed his seat as circuit judge for District One and judge for that district on the Supreme Court.
  47. Mississippi House Journal, page 73 (1825).
  48. Mississippi House Journal, page 74 (1825); James Daniel Lynch, The Bench and Bar of Mississippi 96 (1880).
  49. Mississippi House Journal, page 74 (1825); James Daniel Lynch, The Bench and Bar of Mississippi 96–97 (1880).
  50. Mississippi House Journal, page 77 (1825).
  51. Mississippi House Journal, page 82–84 (Jan. 12, 1825). House Committee Chairman Joseph Johnson reports the date as January 12, 1825, in a handwritten letter to his brother. Johnson told his brother that Stockton defeated a man named Adams, 23 to 21, and that he (Johnson) had voted for Adams; see Skates, A History of the Mississippi Supreme Court, 1817–1948, page 8 (1973).
  52. Miss. Laws, page 85 (Feb. 4, 1825).
  53. Alexander v. State By and Through Allain, 441 So.2d 1329, 1333 (Miss. 1983), also citing and following as persuasive (though not controlling) precedent “the genesis federal case, Marbury v. Madison, 1 Cranch 137, 170, 2 L.Ed. 60 (1803).”