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Bar Journal - March 1, 2002

The 'Ten Pound Act' Cases and the Origins of Judicial Review in NH

By:
 

PREFACE

Conventional wisdom holds that the doctrine of judicial review originated from the case of Marbury v. Madison in 1803.1 Even at the federal level, however, indications of the concept were evident in earlier cases. In Hayburn's Case (1792), for example, five of the seven Supreme Court justices and two district judges, sitting in three different circuits, had refused to carry out an act imposed on them by Congress on the ground that it violated the Constitution's separation of powers provision.2 Because, however, individual judges, not the court as a whole, made the assertion, this case is not thought to have established the doctrine. Likewise, in United States v. Hylton (1796), the justices of the Supreme Court asserted their power but decided that the particular act did not violate the Constitution.3 Accordingly, the power was not, in fact, both asserted and utilized by the United States Supreme Court until Marbury v. Madison was decided.4

In contrast, by the time the United States Supreme Court decided Marbury, a relatively mature doctrine of judicial review was already more than fifteen years old in the State of New Hampshire and, less clearly, in two other states. One of the unanswered questions facing Americans at the early period of their state governments was how they would force government to adhere to the terms of their newly-adopted constitutions. It was uncertain, for example, how a court of law should respond when presented with a case involving a law passed by the legislature in seemingly clear violation of a specific provision of a constitution. Just such a circumstance arose in New Hampshire in 1785-1787 with the passage of the Ten Pound Act when at least one court-the Inferior Court of Common Pleas for the county of Rockingham-boldly answered that question by asserting that it was the role of the judiciary to protect the state's constitution and the rights of its citizens under it. For more than a year, this court-under the threat of impeachment-steadfastly held to its position in at least six cases and refused to yield to a law it viewed as "unconstitutional" despite numerous legislative actions in support of the law.

On November 9, 1785, the New Hampshire General Court enacted a law entitled "An Act for the Recovery of Small Debts in an Expeditious Way and Manner." It read in relevant part:

Be it enacted by the Senate and House of Representatives in General Court convened that every Justice of the peace in the Town where he resides be and hereby is, fully authorized and Impowered to hear try and determine all pleas and actions of Debt and trespass where Title of Land is not concerned arising or happening within this State to the value of Ten pounds or under and to give Judgment therein and to award Execution thereupon, and either party aggrieved at the Judgment given by any such Justice may appeal therefrom to the next Inferior Court of Common Pleas to be holden in and for the County where such action may be commenced & the party appealing shall give security with sufficient sureties by way of Recognizance before such Justice unto the appellee in a reasonable sum not exceeding Twenty pounds to prosecute his appeal with effect and pay such costs & damages as shall be awarded against him-

And be it further enacted that no action shall be commenced to or sustained by, any Inferior Court of common pleas within this State in which the sum demanded does not exceed the sum of five pounds or title of Land concerned unless by appeal from the Judgment of a Justice of the Peace.5

This law, more commonly known as the "Ten Pound Act," was one of several debtor relief laws passed by the legislature in the 1780's. The measure came at a time when the state, like the rest of the nation, was under the strains of the severe economic depression which followed the Revolutionary War. The law represented a response by the legislature to the desperate petitions of debtors for various forms of relief. The Ten Pound Act was designed to help debtors by reducing the costs of defending small civil suits filed by creditors in the state's existing judicial system; because court costs were assessed against the loser and because jury trials were more expensive than bench trials, allowing debt claims involving less than ten pounds to be tried before a justice of the peace was thought to favor debtors. Within six months, however, the Ten Pound Act was declared to be "unconstitutional" by the Inferior Court of Common Pleas for Rockingham County, which ruled that it violated the constitution's guarantee of the right to trial by jury in civil cases.

The ensuing political and constitutional confrontation, which lasted for over a year, eventually involved most of the leading figures of the state at the time. Men such as John Langdon (merchant, shipbuilder and statesman), General John Sullivan (attorney and state President), John Pickering (attorney and chief author of the state's Constitution), Nathaniel Folsom (Revolutionary general and judge), attorney Samuel Sherburne, and William Plumer (later governor and United States Senator) were forced to take a stand as the legislative and judicial branches squared off in the constitutional and political dispute. By the time the controversy had come to a conclusion, a major precedent for the power of judicial review had been established and a fascinating chapter in the state's history had been written.

The events in New Hampshire also gained notoriety beyond the state's borders. In fact, they may have influenced the very design of our federal Constitution and the role of our judiciary under it. At least four newspapers distributed in Philadelphia during the Constitutional Convention published accounts of the final showdown between the New Hampshire court and legislature. Moreover, these newspapers were distributed on the same day that the delegates were debating proposals for the federal judiciary.6

The Inferior Court's action pitted the General Court-the state's "supreme legislative power"-against a mere county court of limited civil jurisdiction at a period in our nation's history when the notion of vesting courts with the power of overturning laws enacted by popularly-elected legislatures seemed usurpitous and undemocratic to many. The outcome would help determine the meaning of New Hampshire's Constitution of 1784 and the power and functions of the legislative and judicial branches under it.

NEW HAMPSHIRE'S CONSTITUTION OF 1784

As the controversy unfolded, the legislative branch seemingly held the upper hand. Indeed, the powers conferred upon the General Court were extraordinary. It was the first branch of government whose powers were established by the Constitution, and it was given, overwhelmingly, the most attention. Of the eleven sections comprising the Constitution's Part II, or "Form of Government," the first three, which concerned the legislature, accounted for over forty percent of Part II's text. Even the terminology used-the name, "General Court" (suggesting a sort of medieval law-making and law-judging authority) and the branch's designation as the "supreme legislative power"-reflects the dominant position the Constitution's authors intended the legislature to occupy.7

In contrast, the judicial branch received little attention. Mention of this branch appeared in that original Constitution seemingly only as an afterthought. Nowhere in the Constitution were any courts vested with the "supreme judicial power" of the state. The short section labeled "Judiciary Power" (which follows sections pertaining to the "Executive Council," the "Secretary, Treasurer, Commissary-General, etc." and the "County-Treasurer") only briefly mentioned relatively insignificant matters such as the tenure of justices of the peace, the means of obtaining advisory opinions from the Superior Court, and the times and places probate courts would be held. The section provided nothing except the barest mention of the state's highest court, the Superior Court, and no mention at all of the courts which had the heaviest case loads, the Inferior Courts of Common Pleas. In short, no court's membership size, jurisdiction, or power was established or defined in either this "Judiciary Power" section or elsewhere in the Constitution in the other scattered, brief references to the judiciary. Instead, the Constitution simply carried over the prior existing court system and left it to the legislature to alter that arrangement as it deemed appropriate. This lack of provision left the judiciary far from coordinate and also extremely vulnerable to legislative domination. Most important, the judiciary was without a clearly established function under the Constitution other than to act as courts had acted traditionally.

Nevertheless, as the lines were drawn in the dispute, it became evident that each branch could look to the Constitution and find support for the position it took. For although the many strengths of the legislative power and the many weaknesses of the judicial power were readily apparent, a closer look reveals restraints on the legislature and ample justification for the position taken by the Rockingham County Inferior Court.

The Plenary Powers of the Legislature

Following Part I, the "Bill of Rights," Part II of the 1784 Constitution established the "Form of Government." The section was introduced by a short preamble which attests to the Framers' belief in the popular origins of governmental power. "The people" the document proclaimed, "do hereby solemnly and mutually agree with each other, to form themselves into a free, sovereign, and independent Body-politic, or State, by the name of the State of New Hampshire." The "Form of Government," which the people were compacting to establish, was then laid out, and was divided into some eleven headings and subheadings labeled: "The General Court," "Senate," "House of Representatives," "President," "Council," "Secretary, Treasurer, Commissary-General, &C," "County-Treasurer, &C," "Judiciary Power," "Clerk of Court," "Delegates to Congress" and "Encouragement of Literature &C." The first three sections established the General Court and defined it as the "supreme legislative power." This power was further divided into two separate bodies-a Senate and a House of Representatives-each possessing a negative upon the other with bills having to pass both houses in order to become law. This section was fairly straightforward. But soon thereafter, in the fourth paragraph of the same section-in what might be termed the "plenary powers" clause-the legislature was granted an arguably unlimited (blanket) delegation of power. This key passage allocated to the legislature "full power and authority...to make, ordain, and establish all manner of wholesome and reasonable orders, laws, statutes, ordinances, directions and instructions, either with penalties or without...as they may judge for the benefit and welfare of the State, and the governing and ordering thereof...." Certainly a law designed to help debtors by allowing civil suits to be tried before justices of the peace (as the Ten Pound Act did) would have seemed to many to have been sanctioned by this provision.8

This broad grant of power was joined by another in the provision to grant to the legislature "full power and authority to erect and constitute judicatories and courts of record." This power made the judiciary dependent on the legislature and threatened their independence. The power to create courts implies the power to destroy them. In fact, the Constitution provides three methods by which the legislature could remove judges with whom they might find themselves at odds. First, they could indirectly remove a judge or group of judges by abolishing the court. This power extended over even the state's highest court. Second, judges could be directly removed through an "address" of both houses and concurrence by the President and Council. And third, judges could be removed through the more traditional process of impeachment for "misconduct or mal-administration in their offices."9

The judiciary was also dependent on the legislature for its financial support and salaries. Although the Constitution stated that "permanent and honorable salaries" were to be provided for the judges of the Superior Court, the language was left vague for that court, and no provision at all was made for the support of the rest of the state's judges-particularly the Inferior Court judges and justices of the peace who then comprised the bulk of the judicial system.10

Finally, the legislature was given the power to directly exercise a number of judicial powers itself-thus blurring any notion of separation of powers. In Part II it was given the power to "impose fines, mulcts, imprisonments and other punishments." And in the judiciary power section, the legislature was granted the unspecified power to "by law make provision for" the hearing and trying of "all causes of marriage, divorce and alimony, and all appeals from the respective judges of probate."11

Legislature Supremacy

While the Constitution of 1784 seemed to largely incorporate the doctrine of legislative supremacy, it nevertheless did include several provisions intended to place restraints on the legislature and government in general. With only a few exceptions, however, these limits were implicit rather than explicit.

First, the apparently unlimited delegation of power in the so-called plenary powers clause did include the restriction that any law passed by the legislature, however "wholesome and reasonable" it might appear, must not be "repugnant, or contrary to the constitution." But this clear acknowledgment of the superiority of the written constitution over legislative power did not go on to state who should make such a determination. The legislature itself? The people through the annual election of their representatives? The courts? In order for courts to attempt that role, they would have needed a considerable degree of independence. Perhaps the most solid source of independence was provided by Article 37 of the Constitution's Bill of Rights which declared the fundamental doctrine of the separation of powers. The article established the legislative, executive and judicial branches as the "three essential powers" of government and decreed they "ought to be kept separate from, and independent of each other, as the nature of free government will admit, or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble band of union and amity." This statement, while not establishing a "pure" separation of powers in which no judicial power would ever be exercised by the legislature, did move in the direction of a balanced separation. It allowed for the combining of functions necessary for government to work with the checks needed to maintain the three separate branches.12

To be sure, there were some specific limitations placed upon the legislative power. Article 16 protected persons against double jeopardy in all criminal cases and also stated that the legislature shall not "make any law that shall subject any person to a capital punishment...without trial by jury." Article 23 declared that "retrospective laws" were so "highly injurious, oppressive and unjust" that "no such laws, therefore, should be made, either for the decision of civil causes or the punishment of offences." And Article 20 (as we shall see) guaranteed jury trials in all civil cases in which they had been "used and practiced" before the adoption of the Constitution.13

Another provision near the end of Part II also affected the relationship between the legislative and judicial branches. Under the so-called reception provision, "All the laws which have heretofore been adopted, used and approved, in the province, colony, or State of New Hampshire, and usually practiced on in the courts of law" were to "remain in full force until altered and repealed by the legislature." Significantly, this provision included the common law and constituted an invitation to the courts to root out, through judicial interpretation, all such laws which conflicted with the Constitution because the provision specifically excepted the continuation of those laws which were "repugnant to the rights and liberties contained" in the new Constitution. Such a determination would inescapably arise through the course of litigation because courts would have to decide what parts of the law were valid and were to be preserved and what parts were unconstitutional. This provision, however, applied only to the prior-existing body of law; it was not intended to sanction judicial review of new legislation.14

New Hampshire's Courts in the 1780's

Because New Hampshire's Constitution, like those of most states at the time, merely carried over the pre-Constitution court structure until the legislature acted to revise it, the judiciary remained basically what it had been since 1769. In that year the state had been divided into five counties in order to permit the courts to be organized on that basis. In 1786, then, the state's judiciary consisted of a Superior Court of Judicature, composed of four justices, which held jurisdiction and authority in both civil and criminal cases over the whole state; one Inferior Court of Common Pleas for each county, also composed of four justices, each of which tried or reviewed civil cases arising within its jurisdiction within its county; a Court of Quarter Sessions of the Peace in each county which held jurisdiction over criminal cases within its county; numerous justices of the peace throughout the state, each with jurisdiction over local civil cases; a Judge of Probate for each county; and a Maritime Court composed of four judges with jurisdiction throughout the state for cases arising on the high seas.15

THE TEN POUND ACT CASES

In all controversies concerning property, and in all suits between two or more persons, except in cases in which it has been heretofore otherwise used and practised, the parties have a right to a trial by jury; and this method of procedure shall be held sacred....

Article XX of the Bill of Rights of New Hampshire's Constitution of 178416

Wallace v. Tarlton

The controversy began uneventfully. On the twentieth day of January 1786, William Wallace Jr., a "yeoman" from the town of Deerfield, initiated a small civil suit before justice of the peace Thomas Bartlet at Nottingham. Wallace sought to collect damages from Richard Tarlton, a "cordwainer" from the town of Greenland, who, as Wallace claimed in his statement to the justice, owed him the sum of 9 for five months of work he had performed at Tarlton's house during 1784. On that January day, a writ of attachment with summons issued ordering the sheriff of Rockingham County to attach the goods or estate of Tarlton "to the value of ten pounds [or] for want thereof to take the Body of the Said Richard so as to insure his appearance at the trial of the case scheduled for Monday February 6, 1786 at ten A.M. at Bartlet's dwelling house."17 Wallace had acted in accordance with the provisions of the Ten Pound Act, enacted only two and one-half months earlier. Before that law's passage he would have had to file and prosecute his suit at Portsmouth before the Inferior Court of Common Pleas for Rockingham County. This would have required him to journey, by horse, at least twenty miles, perhaps many times, over snow-covered, perhaps icy, winter roads to Portsmouth or Exeter to attend the trial while he waited for that overburdened county court to hear his case-probably after numerous continuances. Under the new law he was spared not only the inconvenience of extended travel but also the considerably higher court costs and lawyers' fees associated with the Inferior Court.

As a result of the writ, Deputy Sheriff David Page, on January 27, symbolically attached a hat belonging to "the property of the within named Richard Tarlton value of one shilling," and, as he recorded in his return of service inscribed on the back of the writ, "at the same time left a Summons at his respective place of abode."18

On February 6, as scheduled, the trial took place before Justice Bartlet at Nottingham. The plaintiff, William "Wallis" Jr., as Bartlet recorded his name, was represented by a young Dover attorney, Jonathan Rawson. According to Bartlet's brief account of the trial, there were, apparently, no constitutional arguments put forth at this time. Tarlton was simply defended by his attorney Samuel Sherburne against the plaintiff's claim, with the plea that he had never promised "in manner and form aforesaid" and thereby put himself on trial while "reserving liberty to give any special matter in Evidence upon trial." Sherburne, moreover, offered an "offset" based on an account of various goods and services ("one pair of shoes," "trowsers," "wollen stockens," "a tobacco box," etc.) amounting to over ten shillings which Tarlton claimed he had advanced Wallace. The trial record indicates that this counterclaim was then disputed by Wallace. Justice Bartlet then, "after a full hearing of the parties by their Counsel," pronounced judgment in favor of the plaintiff, declaring "it appears to the said Justice that the said Tarlton did promise in manner and form aforesaid-It is therefore considered by said Justice that the said William recover against the said Tolton Nine pounds damage, and costs of suit taxed nineteen shillings and eight pence...."19

From this judgment Tarlton immediately initiated an appeal to the next session of the Inferior Court of Common Pleas to be "holden" at Portsmouth on the first Tuesday of February 1786, which was granted. As principal he "recognized," posting a bond in the amount of five pounds, while Sherburne and another party, Jonathan Cilley, a "Gentleman," posted another fifty shillings each-all to assure "Tolton shall prosecute his appeal with effect and pay all intervening damages and costs."20

The next action occurred on February 24 when depositions were taken from two witnesses in Greenland before justice of the peace Stephen March. March's record of this proceeding indicated the case was to be "heard and tryed" at the Inferior Court to be at Portsmouth "by Adjournment on the 28th day of Feb.y next...." And so it was there, apparently on February 28, that the case of Richard Tarlton, Appellant v. William Wallace Jr., Appellee was heard and soon after committed to a jury of twelve men. When that jury returned its verdict, it too found for Wallace, the appellee, thus, in effect, upholding Justice Bartlet's decision. It apparently allowed, however, a portion of Tarlton's counterclaim because it awarded Wallace a lesser amount in damages-only 2 17S ld, and costs.21

Then, however, Sherburne took an extraordinary step. He rose before the court and presented a plea-probably for the first time in the history of the state-that the Ten Pound Act was unconstitutional and that the foregoing trial and appeal were contrary to the Constitution and should be reversed.22

The account of this historic plea is brief-only a short paragraph recorded by the Inferior Court's clerk, Noah Emery, in that court's Minute Book. The terse record shows that Sherburne began with a summary of what had occurred in the case.

And afterwards the said Richard Tarlton comes into Court by Samuel Sherburn Esq. his Attorney and moves that Judgment in this Action be Arrested because it Appears that this Action was Originally commenced before a Justice and the sum therein Demanded was nine pounds and the verdict thereon given at this Court in favor of the original plaintiff thereon is two pounds seventeen shillings and One penny....

Sherburne then presented his argument against the Ten Pound Act by making reference to Article XX of the state's constitution.

...that at the Time of forming the present Constitution for this State it was & for a long time before even beyond the Memory of man it had been the Law & Custom of this State for Inferior Courts to Try all Matters of more than forty shillings Value & for Justices of the peace to Try only Civil Matters under that value & by the same Constitution it is Declared that all Trials of Property should be as had before that time been used & Accustomed & this action being brought Against the Express Letter & Spirit of said Constitution & Against the Law of the Land & Verdict thereon obtained Judgment Ought to be Arrested....23 (Emphasis supplied)

Upon hearing Sherburne's plea, the judges of the Inferior Court ordered the case continued "for Advisement." The next action on the case occurred at the court's May term which began on the fourth Tuesday of May. It was then that the Inferior Court took a bold step by agreeing with Sherburne's plea, thereby ruling that the Ten Pound Act was unconstitutional. The court's Minute Book for its May term repeats Sherburne's plea verbatim and then adds "...And now at this Term the Court having Advised upon the aforesaid plea, they are of Opinion that Judgment in this Case ought to be Arrested-Therefore it is Considered by the Court that Judgment be Arrested." And so ended the case Tarlton v. Wallace.24

Macgregore v. Furber

Undoubtedly, the argument against the Ten Pound Act was quickly circulated among New Hampshire's small fraternity of lawyers, which in 1786 numbered fewer than thirty. For, soon after Sherburne's plea in late February before the Rockingham County Inferior Court, the argument would surface in at least four other cases and no less of a figure than Speaker of the House and state President-elect John Sullivan would make the argument in a case tried before a justice of the peace in Londonderry. In the case of James Macgregore v. Joshua Furber the justice, John Neal, recorded the proceedings in greater detail-as did William Plumer, who, at the time, was studying law at Londonderry with Macgregore's attorney, John Prentice.

Justice Neal's record shows that the case originated on March 2 when Macgregore, a locally powerful politician, merchant and farmer, who was, more importantly, the excise master for "wine, rum & brandy and other distilled spirits" for Rockingham County, brought suit against Joshua Furber, a "Gentleman" of Northwood, for lO damages. Macgregore claimed Furber had sold rum without a license at "five different times" between October 1785 and February 14, 1786-an offense which under the law called for a penalty of forty shillings for each offense, or a total of 10. Macgregore was suing on his own behalf as well as that of the county-the lO "to be disposed of according to Law."25

A writ of attachment with summons issued on that day demanded Furber's appearance at Londonderry on March 27 to answer the claim at trial. The return of service as recorded by John Parker, the Sheriff of Rockingham County, attests that on "March 2d 1786-Pursuant to the within Precept I have attached a Hat of the within named Joshua Furber value [one shilling] and gave him a Summons." Next, on March 21, summons issued to seven witnesses, including, significantly, Samuel Sherburne, to appear at the trial.26

Justice Neal's account of the trial shows that all parties met on March 27 at "Ten Oclock forenoon" at his dwelling house and, after an hour, "Adjourned to the house of Capt. Jacob Martin Inholder in this Town 11 Oclock forenoon...." There, after an unspecified period of time, the trial adjourned to April 10. It is unclear from the surviving court records when Sullivan made his plea. However, according to Plumer, the trial and Su1livan's plea were heard on March 27, after which Neal then adjourned the proceedings until April 10 to consider the arguments of the attorneys.27

Both Plumer's and Neal's accounts show that Sullivan made a direct plea to the jurisdiction of the justice on constitutional grounds citing Article XX of the Bill of Rights:

...and the said Joshua comes & defends and for Plea saith that the said Justice ought not to take cognizance of this Action, because (he says) that prior to the making & ratifying the present constitution of New Hampshire it was and ever had been the Law and Custom of this State in controversies between party & party of more than the value of forty shillings for the parties to have a Trial by Jury in the first instance-And in and by the said Constitution it is declared in the 20th Article of the Bill of Rights upon which said Constitution is founded-that in all Controversies concerning property & in all suits between two or more persons except in cases in which it had been before that time otherwise used and practiced-The parties should have right to a trial by Jury....28 (Emphasis supplied)

Sullivan recounted the proceedings of the case stating that the plaintiff "has by this said writ and declaration sued for and demanded more than forty shillings (viz.) ten pounds," thus seeking damages in excess of the traditional jurisdiction of justices. He then supported this plea by referring to the state's long-standing legal practice in civil cases as it related to both the jurisdiction of justices and inferior courts and the right to jury trials. In doing so he had in mind provincial law dating back to 1647 when "commissioners" (many of whose functions were later assumed by JP's) were granted jurisdiction in civil cases up to the value of forty shillings, or two pounds, and inferior courts were granted jurisdiction in civil cases above that amount. Because, even then, jury trials were unavailable at the local commissioner's court, it was a common practice for plaintiffs to increase the ad damnum amount of their claims in order to obtain a jury trial then available only at the Inferior Court. Gradually, the office of justice of the peace more fully emerged and replaced commissioners.

When the state's judiciary was more formally established by provincial laws in 1692 and 1699, the jurisdictional limits of the justices and inferior courts were basically retained as they had evolved. This left a justice of the peace with jurisdiction "in the same Town where he resides" over civil matters "of Debt and Tresspass...to the Value of forty shillings or under..."where title of land was not concerned, and the county inferior courts with jurisdiction over "all Actions, Matters and Causes triable at Common Law, not exceeding the Sum or value of Twenty Pounds...where Title of Land is not concerned...." Thus Sullivan was able to argue for his client that "by Law and Custom" a right to trial by jury in the first instance existed for cases "where more than forty shillings was demanded." Because, therefore, "the said Bill of Rights having guaranteed a continuance of Tryal by Jury in all Cases where Tryals by Jury had been practiced," he argued that the justice ought not to take cognizance of the action.29

In replication John Prentice then responded to Sullivan's plea by arguing that "notwithstanding any thing by the said Joshua in his Plea aforesaid alledged, the said Justice has a right and ought to take cognizance of the said writ and declaration...." He promptly cited the provisions of the Ten Pound Act which he claimed "fully impowered" every justice of the peace in his respective county to hear, try, and determine all pleas and Actions of debt and Trespass where Title of Land is not concerned to the value of ten pounds...." This law, he said, was alone "sufficient Warrant For the said Justice to take cognizance of try and determine the said Action..." Having found a statutory basis for the justice to try the case, Prentice addressed the constitutional question:

Neither does the said Constitution say that in Causes triable of more than forty shillings value, that the party shall have a right to trial by Jury in the first instance nor does the Law restrain the party aggrieved from appealing to the Inferior Court where he may have the same Cause tried by a Jury in as full and ample a manner as if it had originated at an Inferior Court....30 (Emphasis supplied)

Here, Prentice's argument was indeed supported by the Ten Pound Act which did provide for an appeal to the Inferior Court where a jury trial could be obtained by the parties. Apparently that argument was conclusive. Prentice ended his argument and asked "the said Justice to overrule the Plea to the Jurisdiction of the Court and compel the said Justice to plead to the merits...." Which Neal then did: "And I said Justice having considered the above plea of the said Furber overruled the same and the Deft. having said Plea for issue, pleads not guilty in manner and form as the Plaintiff declares and therefore puts himself on trial...."

The parties then presented their arguments concerning Furber's alleged sale of liquor without a license ("Issue being joined") and Neal pronounced judgment in favor of the plaintiff, Macgregore:

...the parties being fully heard it appears to me the said Justice that the Plaintiffs declaration is well supported and the Deft. is guilty as the Plaintiff declares-It is therefore ordered by me the said Justice that the said James Macgregore recover of the said Joshua Furber the Sum of Ten pounds Lawful-money and cost of Court tax'd at Five pounds one shilling and eight pence like money....

Furber then initiated an appeal to the Inferior Court of Rockingham County "to be holden at Portsmouth...on the fourth Tuesday of May next," having posted bond on an undisclosed amount.31

Treferrin v. Cate

Apparently, the next argument against the Ten Pound Act occurred in the case of Robinson Treferrin v. Samuel Cate. This case was first heard at Rye before justice of the peace Joseph Parsons on March 29 and then adjourned until May 20. Treferrin, an innholder from Portsmouth, claimed that Cate, a "Gentleman" also from Portsmouth, owed him 9 from a "note of hand" Cate had passed to a third party who, in turn, had assigned the note to the plaintiff. Like Furber, Cate was represented by Samuel Sherburne. Fortunately, Justice Parsons' record of the proceedings is relatively extensive and Sherburne's plea-which is presumably the same as he presented in the other cases in which he was involved-is presented in detail.

Parsons' records shows that Sherburne at the outset refused to argue the merits of the plaintiff's claim and immediately challenged the validity of the proceedings:

...and the Sd. Samuel Cate by his Attorney comes and defends the force and Injury etc. and says that the Sum sued for & demanded in the Plaintiff's declaration is more than Forty Shillings Lawfull Money Viz the sum of Nine Pounds Lawfull Money and that by the Laws and Constitution of the State of New Hampshire Justices of the Peace may hear and determine Causes of forty shillings and under and no more.

Sherburne then went on and cited Article XX:

...in all controversies concerning property and in all suits except wherein it has been heretofore otherwise used and practised the Parties have a right of trial by Jury...

He then cited what had been the previous legal practice:

...it has not been heretofore used and practised for Justices to hear and determine causes of more than forty Shillings Value, that all causes of more than forty Shillings Value have been heretofore usually heard and tried in the several Counties in this State before the Inferior Court of Common Pleas and for Sd. County's and by Jurors duly returned & impanelled by them to hear and determine the same that the Inferior Court of common Pleas and in for the County of Rockingham by the Laws and Constitution of this State have Cognizance and Jurisdiction of Sd. Action and ought to hear and determine the same and this the Sd. Samuel is ready to verify....

In concluding his plea Sherburne then asked the justice not to hear the case:

...and Said Samuel prays Judgment whether the sd. Justice will contrary to the Laws and Ancient usage of this State take further Cognizance of Sd. Action and whether he the sd. Samuel ought by the Laws and Constitution aforesaid to answer thereto.32

The plaintiff Treferrin then, in the replication, cited the Ten Pound Act and asked that "notwithstanding any thing the Sd. Samuel is pleading alledg'd the sd. Justice hath and ought to take cognizance of...hear try and determine..." the case, and that "the sd. Samuel may be compell'd to answer thereto." In turn, Sherburne argued that the Ten Pound Act was "not sufficient in Law to give the Justice cognizance of the aforesaid Action...or to compel the Sd. Sam. to answer thereto..."33

It was then that Sherburne supported his plea against the constitutionality of the Ten Pound Act by presenting an eloquent five-point demurrer which contained several important constitutional principles arguing why the act and the proceedings before the justice were in violation of the state's Constitution. The plea is a remarkable statement for what it reveals about the state of constitutional thought in 1786 as it clearly demonstrates a very definite belief in a government in which even the legislature had only limited power and in which it was the function and duty of the judiciary to protect the rights of the people, preserve the provisions of their Constitution and check unconstitutional exercises of power by the legislature.

Points one through three speak to the supremacy of the written constitution and the limits of legislature power under it. Point four alludes to Article XX of the Constitution's Bill of Rights and argues that a law like the Ten Pound Act that is so clearly contrary to that article could not be law. Point five is the most significant because it attributes to the courts a power which today we would clearly define as judicial review. As Justice Parsons recorded the argument:

And for causes of Demurrer in Law the sd. Samuel here shews the following-

1st That the Constitution of this State is the source from whence all Legislative Power flows

2d That the Legislature of course canot exercise a Power which is not deriv'd from the constitution-

3d That every attempt of the Legislature to exercise Power not deriv'd from the Constitution is A tyranical usurpation of an Authority never delegated to them and an infringement of the Peoples Liberty A treasonable conspiracy against the Constitution and no Law-

4th That the Constitution has not vested the Legislature with Power to enable Justices to try causes of more than forty shillings Value consequently the aforesaid Statute is an Arbitrary & unwarrantable usurpation and cannot have the force of Law-

5th because the first buddings of Tyrany ought to be carefully watched by the Judicial Courts of this State which are the constitutional Barriers between the Power of the Legislature and the liberty of the People and ought early to be blasted before they increase to A size that may involve the People in the Dark shades of slavery-34 (Emphasis supplied)

Justice Parsons then overruled Sherburne's plea ruling that it was "insufficient" and that Cate "be compelled to answer." To which the defendant, "reserving his Right of exception to the Jurisdiction of this Court appeals to the Inferior Court...[and] thereof put himself on Tryal." After hearing both parties Parsons found for the plaintiff Treferren and awarded him the full damages he sought-9 and court costs of fifteen shillings and three pence. Cate then sought an appeal, posting the sum of eighteen pounds as surety, and the appeal was scheduled for the Rockingham County Inferior Court at its May term.35

Furber v. Mason

In a fourth case, that of William Furber v. Samuel Bickford Mason, it is uncertain whether a challenge was presented to the Ten Pound Act at the trial before the justice of the peace. In the terse record of the proceedings, how ever, such a plea is suggested. The trial took place on March 30 before justice of the peace Samuel Penhallow at Portsmouth. Furber, a "Gentleman" of Newington and apparently no relation to that other "gentleman" Joshua Furber, brought suit against Mason, a "Gentlemen" of Barnstead, for 4 l0s 4d in damages for various goods and services he claimed he had "delivered and sold" to Mason between December 1782 and March 1783. Furber was represented by attorney Oliver Whipple while Mason had the good fortune to be represented by Samuel Sherburne.36

Penhallow's account of the trial indicates that the parties appeared and that an unspecified plea was entered by Sherburne which Penhallow, in turn, overruled as "bad and insufficient." Only then did the defendant present his case against Furber's claim, "having wave[d] his Plea...to issue on the Trial at the Inferior Court..." Then, after hearing the parties argue the merits of the case, Penhallow found in Furber's favor and allowed him the 4 l0s 4d damages he sued for with an additional 32 shillings, 6 pence in costs of court. From this judgment Mason also appealed to the Rockingham County Inferior Court at its May term.37

Bartlet v. French

In the case of Joseph Hall Bartlet v. Gould French, there is no indication of an argument against the Ten Pound Act on constitutional grounds at the trial before the justice of the peace. What is known is that the case originated on March 24 when Bartlet, a tanner from Newbury, Massachusetts, swore out a writ before justice of the peace Benjamin Butler at Nottingham. Bartlet claimed that French, a "husbandman" from Epping, owed him 2 8s 0d plus interest in damages due on a note of hand which French had given to another party who had subsequently signed the note over to the plaintiff. The trial took place on April 10. Bartlet was represented by attorney Jonathan Rawson, who had represented William Wallace in the first Ten Pound Act case, while the name of French's attorney is not recorded. Butler's account is very brief, stating only that "after a ful hearing of the pleas of Both parties it appears to Said Justice that the Pl.t has proved his Declaration...." Bartlet was awarded the 2 lls 9d in damages he sought and l 4s in costs. French then appealed to the Rockingham County Inferior Court at its May term, posting a bond of 5, which was matched by two other individuals who posted fifty shillings each.38

The Court's Reasoning

And so by the time that the Inferior Court of Common Pleas for Rockingham County began its May 1786 term, the argument on constitutional grounds against the Ten Pound Act had been made before that court once in February in Tarlton v. Wallace, and at least two, and possibly three, other times in trials before justices of the peace. Before the May term ended, the constitutional issue first raised in February by Sherburne in Tarlton would also be raised by counsel in four other cases appealed from decisions of justices of the peace. And in each of these, the court maintained its stand. For, immediately after Tarlton, the Inferior Court handed down four more rulings which held that the Ten Pound Act was unconstitutional.

In each of these five cases the attorney for the appellant moved that because the original trial had taken place before a justice of the peace, and the sum demanded exceeded forty shillings, the proceedings must be "quashed." Without going into the merits of the claim, the attorneys argued that although the actions had been brought before the justices under the provisions of an act which the legislature had duly passed into law, this act could not have the force of law because it violated the state's Constitution in Article XX of the Bill of Rights. Thus it was the duty of the Inferior Court to vacate the proceedings. The Inferior Court agreed with this plea and ruled in favor of the appellants in each case. In doing so, it seems that the court, having arrived at a position in Tarlton, formulated a bolder, more lucidly stated, judgment which it then expressed in nearly identical form in each of the subsequent four cases. Thus in Furber v. Macgregore, French v. Bartlet, Mason v. Furber and Cate v. Treferrin, the Rockingham County Inferior Court, composed of four distinguished Revolutionary-era leaders in General Nathaniel Folsom, Timothy Walker, Jr., Abiel Foster and John Calfe held to the position that the Ten Pound Act was unconstitutional. As the court's Minute Book for its May term shows, the court declared in each case:

On Motion, it Appearing to the Court that the Act of the Legislature impowering a Justice to hear & Determine civil Actions of More than Forty Shillings is Manifestly Contrary to the Constitution of this State & this Action being Originally Commenced before a Justice for more than forty shillings. It is therefore Considered by the Court that the Original Plat. . . . take nothing by his Writ & that the Original Deft. . . . Recover Against the Said . . . . his costs Taxed at . . . .39 (Emphasis supplied)

Therefore, the court reasoned that the Ten Pound Act was unconstitutional because it violated the guarantee of Article XX to a trial by jury in all cases in which the right had existed before the adoption of the Constitution. This right extended to all civil cases in which the sum demanded exceeded forty shillings and allowed defendants the right to a jury trial in the first instance. Although the Ten Pound Act had provided for jury trials upon appeal this was only after the aggrieved party had posted bond (which could be as much as twenty pounds) and had faced the added expenses of higher court costs and lawyers' fees and the inconvenience of having to plead the case twice-all of which constituted a new burden which was not permitted. This new burden, the court must have reasoned, had substantially diminished the right to a trial by jury, which the legislature was not allowed to do. Therefore, it held that the Ten Pound Act was unconstitutional.

In each of the five cases the writ of execution issued to the county sheriff ordered the appellant to pay costs of the suit. This was not an insubstantial amount. The costs ranged from just over two pounds to over three and one-half pounds. Accordingly, the original plaintiff-creditor had not only failed to recover his debt but instead faced additional costs of several pounds! Although the original plaintiff was seemingly free to prosecute the case before the Inferior Court, this was done in only one case, that of Treferrin v. Cate. In that case a new trial was held in February 1787 and the jury, unlike the justice of the peace, found for the defendant Cate, and awarded him 2 ls 6d in costs of court.

Duty v. Kelley

The claim that the Ten Pound Act was unconstitutional may have been raised in two other cases in Rockingham County, though the extant court records are too incomplete to establish that fact. The two cases involve the same parties. The plaintiff was William Duty, an "Esquire" of Salem (and crony of Nathaniel Peabody), and the defendant was Samuel Kelley, a "Gentleman," also of Salem. Both suits were heard before justice of the peace Dr. Moody Morse (also a crony of Peabody) at Salem on July 4, 1786, and involved sums of over forty shillings and under lO.40

In the first suit, an action of debt, Duty sought to recover the sum of 9 he claimed Kelley owed him for various legal services he had performed. In the second case, an action of trespass, he claimed Kelley's wife Elisabeth had taken "with force of arms" a recognizance, and promptly "tore in pieces" the legal document by which Kelley stood bound to the state as principal. Justice Morse ruled for Duty in both cases, awarding the full 9 damages plus 11 shillings and 8 pence costs of court in the first case, and 6 damages plus another 11 shillings and 8 pence costs of court in the second. Kelley appealed in both cases to the Rockingham County Inferior Court at its August 1786 term. That court then overturned both decisions of the justice. According to the brief notation in that court's Minute Book, the court ruled that "On Motion of the Appellants Counsel this Action is quashed for want of regularity in Proceedings." The court awarded costs of court to Kelley.41

Davis v. Young

Although one cannot be sure that it was, in fact, the Ten Pound Act that had been declared unconstitutional in the two Kelley v. Duty cases (if in fact any law had been ruled unconstitutional), it is certain that at least one other case did result in such a ruling by the Rockingham County Inferior Court. The case of Joseph Young, Appellant v. John Davis, Appellee originated on October 17, 1786, when the plaintiff, Davis, a "husbandman" from Nottingham, appeared before justice of the peace Thomas Bartlet at Nottingham to initiate a suit in a case of trespass against Joseph Young, a "trader" from Newmarket. Bartlet was the same justice who, in trying the first Ten Pound Act case, had rejected Sherburne's claim. Davis alleged that Young had in his possession "sixteen hundred and fifty feet of Marchantible Pine Boards" which were the property of the plaintiff until they had disappeared from his land and subsequently turned-up in the possession of Young. After discovering this, Davis confronted Young, who refused to return the boards which Davis valued at 2 9s 6d.42

On November 6, the trial took place before Justice Bartlet at Nottingham. There were apparently no pleas to the jurisdiction of the justice or against the Ten Pound Act. Bartlet's record shows that the defendant for his plea "Says his is Not Guilty in Manner and forme as the Plt. Declares against him and there of Puts him selfe on tryal...." Thereafter ("the Partys with there witnesses fully heard"), Bartlet pronounced judgment for the plaintiff awarding him 2 9s 6d in damages and 3 2s 8d in costs of court.43

Young immediately appealed to the Inferior Court of Rockingham County at its next term, posting a bond of lO, while two other individuals posted 5 each. At that court, in November, Young was represented by attorney John Pickering, who challenged the proceedings on constitutional grounds. The judges of the Inferior Court then, once again, declared the Ten Pound Act to be unconstitutional. As the Minute Book for the court's November 1786 term records:

On Motion it Appearing to the Court from Inspecting of the said Justices proceedings & Judgment in this Case, that the sum Demanded Exceeds the Jurisdiction of the said Justice, and that no Justice of the peace can take cognizance thereof according to the Constitution of this State-wherefore it is Considered by the Court that the said proceedings be quashed, and that the said Young recover Against the said Davis Costs of Courts-Taxed at 2 13s Od.44

An execution issued on November 10 ordering the sheriff of Rockingham County to collect the costs from Davis.

Hills v. Wason

In still another case, the Ten Pound Act was challenged in front of a justice of the peace, but before the Inferior Court could hear the appeal, the Ten Pound Act had been repealed. In the case of Isaac Hills v. John Wason, the plaintiff Hills, a "trader" from Chester, claimed that Wason, a "yeoman" from Candia, owed him the sum of 60 shillings which represented the balance between two offsetting accounts the two parties had owed each other. The trial took place before justice of the peace John Neal. Wason was represented by John Pickering, who presented what had, by then, become a familiar argument. As Neal's records shows:

...the said John Wason comes and defends and say the said Justice ought not to have or hold forth cognizance of the declaration or plea aforesaid; because he says by a Law of this State no Justice is impowered to try any issue or hear any plea where the matter or thing in contest exceeds the nominal sum of forty shillings and by the constitution of said State all matters exceeding the sum of forty shillings aforesaid, are and ought to be tried by Jury as has been heretofore used and practiced in this State....45

Prentice countered Pickering's argument saying it "was not sufficient in Law" to preclude the said Hills from having his case tried. He then went on to argue that Hills was under "no necessity," nor was he "bound by the Laws of the Land," to make any answer to the defendant's constitutional challenge.46

Neal rejected the constitutional challenge, just as he had done over a year earlier in Macgregore v. Furber. He ruled that the defendant's pleadings were "bad and no legal answer to the plaintiff's declaration" and ordered the case tried on its merits. He then found for Hills the sum of 10 shillings and five pence in damages plus costs of court amounting to l 8s 6d.47

Wason appealed the decision to the Rockingham County Inferior Court at its May 1787 term. The case was then continued "by order of Court for Advisement." In August, nearly two months after the repeal of the Ten Pound Act, the case was tried by a jury which found for the appellant Wason the sum of 1 shilling and 6 pence in damages and costs of courts amounting to 7 ls 8d.48

Strafford County Cases

In the Strafford County Inferior Court, there were three cases in which that court also may have ruled against the act's constitutionality: those of Jonathan Gilman v. Benjamin Butler, Richard Perkins v. Solomon Lord, and Ebenezer Horn v. Samuel Austin. Although the scant surviving court records are inconclusive, there are several reasons to believe that such rulings were made. First, the language used in the court's Book of Judgments and Levies is very similar to that recorded in the Rockingham County Inferior Court's Minute Book. The cases were each appeals from decisions of justices of the peace and were heard upon appeal during the period when the Ten Pound Act was in force. In addition, the Strafford County Inferior Court, meeting usually at Dover, was very close geographically to its counterpart in Portsmouth. Presumably its judges were well aware of the actions of the Rockingham County judges and, more importantly, the same lawyers who presented the challenge to the Ten Pound Act at Portsmouth (Samuel Sherburne, John Sullivan, John Pickering) frequently practiced in the Strafford County courts. In the three Strafford County cases, all that is known for certain is that the Inferior Court overturned the decision of the local justice of the peace before whom the cases had been originally tried on the ground that the justice in each case had exceeded his authority. In each case:

It appear[ed] to the Court that the Justice could not by the law of this state, nor by the Constitution hold forth Cognizance of the original Plea-It is therefore ordered by the Court that the Action be dismissed and that the appelt. recover against the appellee Costs of Court....49

SUMMARY

Thus ended the Ten Pound Act cases insofar as the involvement of the Rockingham and Strafford County Inferior Courts were concerned. In the period of just over one year, the Rockingham County court had ruled the Ten Pound Act to be unconstitutional in at least six cases. The episode had begun in February 1786 when Sherburne made his constitutional challenge in Tarlton v. Wallace. The court agreed with Sherburne in Tarlton and handed down its decision in that case in May. This action had been followed by four other such rulings in its May term in the cases of Furber v. Macgregore, Cate v. Treferrin, Mason v. Furber and French v. Bartlet. Then, six months later in its November term, the court once again held the Ten Pound Act to be unconstitutional in Young v. Davis. In the interim the court may well have made the same ruling in the two Kelley v. Duty cases-although the court records do not prove this. And, finally, in the case of Hills v. Wason, the court almost certainly would have made the ruling against the act had it not already been repealed.

THE GENERAL COURT REACTS

The actions of the Rockingham County Inferior Court, of course, did not take place in a vacuum. On the contrary, they had fueled a political and constitutional crisis of significant proportions. Articles in the state's newspapers debated the propriety of the court's actions, as did at least a few important men in their private correspondence. Angry petitions were submitted to the legislature and that body increasingly became the forum for the debate over jurisdictional challenges to the Ten Pound Act and the legislature's power to enact it.

Reaction to the rulings in May was sharply divided as news of the actions quickly spread throughout the state. Conservatives (who tended to be creditors) were generally pleased. Not only had the continued viability of one specific pro-debtor law been called into question, but they had found in the courts a more general vehicle to stem what they saw as a rising tide of populist legislation and a check on the legislative despotism they feared. As Plumer wrote on May 31:

The aspect of public actions in this State are gloomy. Money scarce, business dull and our Feeble government unhinged. [But] our courts of law are firm, and i, n these degenerate days dare to be honest. The Inferior Court of Common Pleas have resolved that the Law authorizing justices to try actions under lO is unconstitutional.... I am glad the Court have had firmness to act their own opinion. If our elected government is long supported, it will owe its existence to the Judiciary. That is the only body of men who will have a effective check on a numerous Assembly.50 (Emphasis supplied)

On the other hand, debtors were not at all pleased. In their view the elite, particularly the lawyers and courts, had conspired, once again, to turn back a measure designed to help them in a period of economic depression.

Also angered were the losing parties (all of whom ironically were creditors) in the five cases in which the Inferior Court had reversed the decisions of the justices of the peace. Within days of the Inferior Court's May 1786 rulings, two of these parties submitted angry petitions to the legislature at its June session at Concord. In both instances the petitioners were politicians of note in the state. On June 6, James Macgregore, in Concord, submitted a lengthy petition to the General Court in which he related what had happened in the trials before the justice and the Inferior Court, complaining:

...the said Joshua being brought before a Justice, for Plea gave that a Justice of the peace had no right to take cognizance of any matter where the damages alleged ammounted to more than forty shillings, which plea to the Justice having considered and overruled.... From which Judgment the said Furber appealed to the Inferior Court of Common Pleas...that upon the full hearing of the partys by their Council, the said Inferior Court, did Determine that the said Furber plea is good and that a Justice has no right to try any matter where the Damages aleged ammount to more than Forty shillings....51

Macgregore then asked the legislature what he could do to recover the damages which he felt Furber owed him and what he could do to prosecute such cases in the future. As he said:

That by the Determination of the said Inferior Court your Petitioner has been put to great Cost and has Sustained Damages ammounting...to the sum of Twenty Seven pounds, fourteen shillings & ten pence, besides which he is greatly impeded in the collection of the Exise as he knows not in what manner to inforce the payment of any sum or sums due to him where the ammount is between forty shillings and five pounds which is the case in many instances....52

Macgregore concluded, asking the legislature "to restore him in some way to his Law or other ways order him a restitution of the damages he has sustained when pursuing a plain Law of the State...." He then attached an account specifying the 27 pounds in costs he faced-all because that law "is by the Hon.bl Justices of the Inferior Court Judged unconstitutional & the Cause by them Dismised."53

The other petition, dated June 12, 1786, was submitted by Thomas Bartlet as attorney for Joseph Hall Bartlet. Thomas Bartlet, who had been the justice of the peace in Wallace v. Tarlton, was also a veteran House member who would later serve in that chamber as Speaker. Bartlet's petition went beyond Macgregore's; his called for the impeachment of the Inferior Court judges. First, he described what had happened in Bartlet v. French at the JP trial:

Your Petitioner having full faith to the Laws of the State of New Hampshire...in order for to Recover his money brought an action agreeable to the Laws of Said state before a Justice of the Peace for Said County of Rockingham and Recovered Judgment against Said French.

Bartlet then denounced the action of the Inferior Court judges:

the said French appealed to the then next Inferior Court...at which Court the said appeale was Entered and to his great surprise the Justices of Said Court by the assistance of the Bar were in there own opinion wiser than the whole Legislature & would not Sustaine Said action but Dismised the Same and ordered your Petitioner Contrary to Law for to Pay a bill of cost beside Loosing his Debt. (Emphasis supplied)

Bartlet concluded:

Wherefore your Petitioner humbly Prays your Honours for to take his Case under your wise Consideration & Impeach said Justices for Male Conduct and that they may be Tried before the Senate and if it Should appeare that they have acted Contrary to Laws that they may be Dismissed from there Said office and others may be appointed in there stead, that will make the Laws there Rule of Conduct....54

These petitions reached the legislature at a time when they were under the increased pressure from the debtor party to enact even more legislation to relieve their burdens. Now the legislators were faced with the action of the Inferior Court seeking to turn aside one of the debtor laws they had passed. In the House, in its June session, several important events occurred, all in rapid succession. By the end of the month, the House had put itself on record squarely in opposition to the actions of the Rockingham County Inferior Court.

Repeal or Revision

The first action, though, was an attempt on June 15, led by conservatives, to repeal the act. This failed overwhelmingly, 16 to 64, with only the usual pro-creditor members from the Portsmouth area and a few other conservatives joining to repeal the law. A majority must have felt there was a need to reconsider some of the law's provisions for, on the following day, the House appointed a committee of five members to "take under consideration" the Ten Pound Act, "and to report such alterations they may judge necessary." The Senate, likewise, joined the committee, naming two of its members to it. The committee, chaired by Matthew Thornton, reported back on June 22, recommending two alterations in the act. The first one was that, at the request of either party at the trial of the justice of the peace, the justice would have to call for a jury to hear the case; the second was that appeals from this judgment could go to either the Inferior or Superior Court-at the appellant's option. The House voted to accept the report with an amendment that the appeal would go directly to the Superior Court only (thereby bypassing the Inferior Court). The report was sent up to the Senate, which took no action on it.55

Reaffirmation

On the same day, the House considered Macgregore's petition and passed two sternly-worded resolves in response, affirming the law's constitutionality and instructing the judges to abide by and respect it.

Therefore Resolved that said Act is a Constitutional Law of this State and ought to be observed as such--

And be it further Resolved that the Judgment of the Inferior Court aforesaid be and hereby is rendered null and void and that the said Macgregore shall have liberty & he is hereby impowered to enter his said Action at the Superior Court of Judicature....56 (Emphasis supplied)

The resolves were sent up to the Senate, but it again took no action on them. Perhaps in response to the Senate's non-action, the House next, on June 27, considered and voted that there should be no further action in all the cases until the General Court could further consider the affair. As the House Journal shows:

Upon reading and considering the Petition of Joseph Hall Bartlet, Voted, That in all actions brought by appeal to the Inferior Court of Common Please, in the County of Rockingham, that exceed forty shillings, which the Court did not sustain, there be no further process until further order of the General Court.57

This resolution was sent up to the Senate, which responded that, "The Senate are of opinion that the Vote of the honble. House, on the within Petition does not constitutionally come before them for their consideration," and there was no further action by the legislature, which then adjourned until September. The legislature, however, had been made aware of the actions of the Inferior Court and the House had and responded twice with clear directives for the judges to abide by the act.58

Reconsideration

When the legislature re-convened in Exeter, in September, the pressure to enact paper money and other pro-debtor laws was at its greatest. Against this backdrop, the General Court was presented with a second petition from James Macgregore, submitted on September 13. The new petition asked why there had been no action on his previous petition:

...that from the more Important Business (as he presumes to think) then before the Honbl. Court, this matter was not then decided upon.

He stated that, as excise master, he needed a means to collect debts owed him in order to pay the state its share of the tax, however:

...by the present Determination of the Court of Law, he conceives it verry unsafe for him to attempt the recovery of any considerable sums.

Wherefore, he Humbly Prays your Honours as the Guardains of the Liberty and Property of all the free subjects of this State, to direct him to some mode for the recovery of the monies due him...59

In response, on September 15, the House and Senate appointed another committee to consider altering the Ten Pound Act. This committee, however, reported back on the following day that "the said act stands in need of no alterations or amendments." Thus, the legislature had hardened its position and decided to stand by its law. At this point the House may have felt it had successfully curbed the defiant Rockingham County judges and ended the problem. Such was not the case, however, as they soon discovered in early November when the Inferior Court issued its judgment in Young v. Davis. The House responded on December 25 with a roll call vote, once again reaffirming its support for the Ten Pound Act. The vote asking "whether said act is a constitutional act," passed in the affirmative by a margin of 44 to 14. Then, perhaps in preparation for possible action against the Rockingham County Inferior Court judges, the House voted on December 27 to instruct its Clerk, John Calfe, himself a member of that court, to write to the clerk of the Rockingham County Inferior Court "and request of him, a Copy of the proceedings of said Court in each Action brought before them by appeals from the Justices of the Peace, in cases which exceeded forty shillings." Having taken this action, the legislature put aside the Ten Pound Act controversy and adjourned on January 18 until June.60

Impeachment Considered

According to Plumer, by the end of April 1787, the whole affair "after much ado [had] vanished in smoke."61 In June 1787, however, the controversy flared up again. Two incidents may have triggered the sudden climax. First, there was the case of Hills v. Wason, which was tried before Justice Neal at Londonderry on April 23, 1787. This case reminded the state's leaders that the Ten Pound Act was still under constitutional challenge. It was therefore apparent that the confusion about where to bring civil suits of under lO needed to be resolved. But it was the second incident, the filing of James Macgregore's third petition on June 19, which was the catalyst for the final showdown between the legislature and the court.

Macgregore, in his third petition, complained of the mounting debts he faced "owing to the want of power to collect the same by the Laws." He criticized the General Court for neither resolving the confusion over the Ten Pound Act in general or granting him any particular relief; "for want of a determination upon the Justices Act (so called) he has lost a verry considerable part of the Monies due him...." In addition he owed the state a large sum; "whilst the power of the Honbl. Court is called in question in the matter of the Justices Act it is pecularily distresing to him that the Honble. Treasurer should think himself justified to Issue an Extent against him...." He asked the legislature to "restore him to his law" and grant him a delay in paying the state its share of the excise tax on liquor. On June 20, the House voted to form a committee to consider the petition, which the Senate joined on the same day. This committee reported back on June 22 and recommended granting Macgregore's request to delay making excise payments to the Treasury.62

With the immediate issue of Macgregore temporarily resolved, matters took a dramatic turn which eventually brought the constitutional crisis to its conclusion. One of the House members, possibly Thomas Bartlet, had drawn papers "purporting to be an impeachment of the Honbl. Justices of the Inferior Court of Common Pleas for the Court of Rockingham." On June 26 this member, along with several others, mounted a formal attempt to initiate the impeachment proceeding by bringing the issue to a vote.63

The motion to read the impeachment papers passed by the margin of 31 to 25. Again the pro-debtor members voted to proceed with the impeachment process and those opposed were the same conservatives who had been against the Ten Pound Act and other such laws (John Sparhawk, John Pickering, George Gains, John Prentice). Although the impeachment papers were read, supporters of the judges managed to get any further consideration of the matter postponed until the following day.64

Justices' Conduct "Justified"

On June 27, the House appointed a committee of thirteen members, led by John Sparhawk, "to take under consideration" the impeachment papers received the day before. This committee reported back later that afternoon, but instead of recommending the impeachment of the judges, it dramatically sought a reversal in the House's position. They reported "as their Opinion that the said Justices are not Impeachable for Mal-administration as their conduct is justified by the constitution of the State."65

The House then voted, 35 to 21, to receive and accept the committee's report without amendment. Another committee was then formed to draft a bill to repeal the Ten Pound Act. On the following day, this committee reported back a bill to repeal the act and on a roll call vote, the House voted to repeal the act by the margin of 32 to 18. The Senate quickly followed suit and, remarkably, the Ten Pound Act had been repealed and the crisis averted.66

THE IMPACT AND SIGNIFICANCE OF THE NEW HAMPSHIRE PRECEDENTS

And so, in the brief span of just two days the New Hampshire House of Representatives had dramatically reversed itself. It had switched from considering the impeachment of the four defiant judges of the Rockingham County Inferior Court, to acceding to the judges' view and voting to repeal the law that the judges had ruled was unconstitutional. More significantly, the legislature clearly recognized the court's authority to declare laws to be unconstitutional when the House voted that the judges' "conduct" was "justified by the constitution of this State." Indeed, the Inferior Court's "conduct" had consisted of a very clear-cut exercise of judicial review.

The court's unyielding stand had forced the legislature to reexamine its law and, ultimately, to repeal it. By so doing, the legislature sanctioned the notion that courts of law could legitimately declare acts of the other two branches of government to be null and void whenever those acts violated the "higher law" embodied in a constitution. In many ways the development of judicial review in New Hampshire anticipated the national experience, which was only then emerging in America. For, as we shall see, the Ten Pound Act cases appear to have been the strongest, clearest example of a court's exercise of the doctrine from among all the pre- Convention precedents.

Because the power of judicial review was not expressly provided in either the United States Constitution or in any of the early state constitutions, some scholars have challenged the legitimacy of the court's exercise of it, claiming that exercise of the power was a usurpation by the courts in gross violation of what the Framers intended. Opposing scholars have argued that the Framers did intend the courts to exercise the power, but because they viewed it as a normal function of the judiciary, they felt no need to make express provision for it. As a result of this debate, a great deal of effort has been expended in analysis of the debates at the federal Constitutional Convention, in the writings of the delegates subsequent to the Convention, in the debates over the ratification of the document, and in a search for pre-Convention precedents of judicial review.67

Even if it cannot be proved that the Framers really intended the courts to possess such power, judicial review was the natural outgrowth of ideas that were taking shape at about the same time as the drafting of the Constitution. Most of these ideas were the result of Americans' experiences with their state governments during the decade following the Declaration of Independence. During that tumultuous decade, as historian Gordon Wood has demonstrated, a fundamental transformation in political thought occurred which altered American attitudes toward politics and law, redefining such political notions as popular sovereignty, republicanism and the nature of representation. As Americans attempted to incorporate these evolving concepts into their new constitutions there was a further rethinking of such constitutional principles as the separation of powers, checks and balances and limited government. This process was primarily a reaction to the "excesses" of the state legislatures and their virtually unchecked powers which had spawned fear among conservatives and moneyed men, in particular, of a legislative despotism. As these changed attitudes took hold, there was a growing realization that a strong, independent judiciary was needed in order for a balanced, limited constitutional system to succeed. These factors, and no doubt others less obvious, led to the doctrine of judicial review by the courts.68

By the war's end the inherent weaknesses of America's political institutions had grown painfully obvious to many Americans. Although most of the early state constitutions had separation of power clauses and paid lip-service to the importance of three independent, coordinate branches of government, in practice, these provisions had been largely ignored. As Jefferson wrote in 1781 concerning the Virginia Constitution:

All the powers of government, legislative, executive, and judiciary result to the legislative body. The concentrating [of] these in the same hands is precisely the definition of despotic government. It will be no alleviation that these powers will be exercised by a plurality of hands. 173 despots would surely be as oppressive as one.... An elective despotism was not the government we fought for.69

By the mid-1780's, many of the state legislatures had begun interfering with the rights of individuals guaranteed by the state constitutions, particularly in their bills of rights. Madison wrote that it was this infringement upon "the security of private rights and the steady dispensation of Justice" that, more than anything else, had produced the Federal Constitutional Convention. In particular, nearly every state had enacted laws adversely affecting the rights of creditors, such as paper money and legal tender laws, laws curtailing the right to trial by jury (such as the Ten Pound Act), bankruptcy measures, and private acts interfering with decisions of courts in individual cases. The struggle between creditor and debtor even threatened public order. Shays' Rebellion especially brought that point home and demonstrated the need for a stronger national government. Conservatives throughout the country increasingly believed that the state governments and the ineffectual Confederation were inherently too weak to cope with the problems of a growing nation in peacetime.70

By the time of the Constitutional Convention of 1787, courts in several states had issued decisions that challenged laws passed by their legislatures. Altogether, over the years, only about nine instances of this kind have been cited as having occurred before the delegates to the Constitutional Convention met at Philadelphia beginning in May 1787. Even today, scholars disagree over the validity of several of these precedents. After conducting an exhaustive analysis of what several of the courts actually held, two influential studies have discounted all but two of the precedents. Other scholars have advanced arguments in support of a third.71

In several of the other cases, however, it appears that men of that day believed that the courts in question had voided laws on constitutional grounds and this impression, in itself, contributed to the doctrine's development elsewhere. This misperception was understandable when one considers that there was, during this period, virtually no official reporting of judicial decisions. Instead, knowledge of cases of this kind often depended on second-hand newspaper accounts, pamphlets, private letters and word of mouth. The cases sometimes gained notoriety only after aggrieved parties had petitioned their legislatures and members of those bodies instituted actions against the judges who had been involved in the decisions. Thus, even if the other cases had not been true precedents, many men, including delegates to the Constitutional Convention, could have believed they were. As one commentator has concluded, "What the materials do show incontestably, as other records of the time confirm, is that the idea of judicial review was in people's minds. The power had been repeatedly asserted, seldom if ever flatly negatived, and on at least three occasions actually exercised before the Constitution was signed."72

All three of these "actual" precedents involved legislative encroachment on the same basic constitutional right-the right to jury trial. These cases, the Ten Pound Act cases, Trevett v. Weeden (R.I., 1786), and Bayard v. Singleton (N.C., 1787), each enjoyed considerable notoriety in their day and were, no doubt, known to many of the Convention delegates. By far, however, the New Hampshire cases were the most important.

The Rhode Island Case

In Trevett v. Weeden, the Superior Court for the County of Newport, in effect, decided that a Rhode Island law passed in August 1786 was unconstitutional because it provided no right to jury trial or provision for appeal. The law in question was intended to enforce the state's recently enacted paper money laws by providing criminal penalties for any person who refused to accept the bills. Instead of allowing offenders to be prosecuted through the established methods of judicial practice, the act provided that complaints of violations were to be brought to judges of the Superior Courts, who were directed to convene special courts to try the cases without a jury. The penalties were fairly severe. Those convicted faced heavy fines plus possible jail terms. Soon after the law's passage, merchants and creditors complained vociferously that the law was unconstitutional. A test of the law quickly arose.73

In September, John Weeden, a butcher, refused to accept payment in the bills for the purchase of meat from a customer named John Trevett. Trevett then, under the terms of the new law, filed a complaint with the Superior Court and, on September 25, arguments were heard in the case. Weeden was represented by James Varnum, who subsequently published his plea in a pamphlet which was circulated widely throughout the country, including at Philadelphia during the Convention. Varnum's argument incorporated most of the emerging premises for judicial review. He first harked back to Coke and Otis, stating that laws contrary to common right and reason were not law and that courts should construe such laws in such a way as to bring them into conformity with the common law. But he focused his argument on the emerging notion that there was a distinction between the fundamental law embodied in a constitution and ordinary statute law enacted by a legislature. He argued that the fundamental law must always take precedence over statutory law and, further, that it was the duty of the judiciary to make certain it did. As Varnum put it, "the Legislature have the uncontrollable power of making laws not repugnant to the Constitution: the Judiciary have the sole power of judging those laws, and are bound to execute them; but cannot admit any act of the Legislature as law which is against the Constitution." This, he argued, was because the principles of the constitution "were ordained by the people anterior to and created the powers of the General Assembly." The "powers of legislation," he went on to say, "in every possible instance, are derived from the people at large, are altogether fiduciary, and subordinate to the association by which they are formed." Only the people-and not the legislature-could alter the fundamental law which they had created and the judiciary, as the agents of the people, were obliged "to reject all acts of the Legislature that are contrary to the trust reposed in them by the people."74

Varnum's arguments, eloquent and compelling as they were, faced a monumental obstacle-Rhode Island had no written constitution. The state had been founded under a charter granted by Charles II in 1663 and had continued to operate under that document, even after independence. Accordingly, Varnum was forced to build his case for both a fundamental "higher law" and a right to jury trial upon that charter, the common law and Magna Carta.

Significantly, the judgment of the court, issued on the following day, does not include any ruling against the constitutionality of the act. It is primarily this fact that commentators cite in rejection of Trevett v. Weeden as a pre-Convention precedent. The court record simply shows that the judgment was as follows:

"Whereupon, all and singular the premises being seen and by the Justices of the Court aforesaid fully understood: it is Considered, Adjudged and Declared that the Said Complaint does not come under the Cognizance of the Justices here present, and that the same be and is hereby dismissed."75

But according to a newspaper account at least three of the five judges deciding the case stated orally in court, when delivering the judgment, that the court's refusal of jurisdiction resulted from their belief that the exclusion of jury trial made the law unconstitutional.76 Certainly many of the state's political leaders believed that the decision had been made on constitutional grounds because, upon hearing of the action, the governor called the legislature into special session and the judges were promptly summoned before that body. The resolution, summoning the judges, passed by both houses and addressed to the sheriffs throughout the state, stated:

Whereas it appears that the honorable the judges of the Supreme Court of Judicature, at the last September term...adjudged an act of the Supreme Legislature of this State to be unconstitutional and so absolutely void; and whereas it is suggested that the said judgment is unprecedented in this State and may tend to abolish the legislative authority thereof: it is therefore voted and resolved that all the justices ...be forthwith cited...to give their immediate attendance upon this assembly, to assign the reasons and grounds for the aforesaid judgment.... (emphasis supplied)77

Before the legislature-in what amounted to an unofficial impeachment proceeding-the judges gingerly avoided a direct challenge to the lawmaking power of the legislature. Only three of the five judges attended as two claimed to be ill. Of these, only Justice Howell said anything of consequence. He objected to the legislative investigation of the court's action and stressed that the independence of the judiciary must be maintained. He offered that if the order "by which the Judges were [called] before the House might be considered as calling upon them to assist in matters of legislation" they would comply, but if the order were intended to "render the reasons for their judicial determination," then they would decline because for this "they were accountable only to God."78

Howell then demonstrated to the legislature, "by a variety of conclusive arguments" that the law, in his view, "was unconstitutional [and] had not the force of a law, and could not be executed." At this point, though, his defiant posture became one of respectful denial. He insisted that "the legislature ha[d] assumed a fact in their summons...which was not justified or warranted by the record. The plea of the defendant in a matter of mere surplusage mentions the act of the General Assembly as unconstitutional and so void; but the judgment of the court simply [wa]s that the information [wa]s not cognizable before them. Hence it appears that the plea ha[d] been mistaken for the judgment." He concluded with the statement that "[w]hatever might have been the opinion of the Judges, they spoke by their records, which admitted of no addition or diminution" and that record indicated that the court had only taken the narrow, technical legal position that they could not take jurisdiction in that particular case; they had claimed no general power to disregard or nullify any act of the assembly.

One can only conclude that the Rhode Island court, apparently believing that it lacked constitutional and political footing to maintain a direct challenge to an act of the legislature, chose to equivocate by hiding behind a narrow technical judgment. There was a move to impeach the judges, but this ultimately failed. When the judges stood for reelection in May 1787, however, the people of Rhode Island expressed their disapproval. Four of the five were voted out of office. The one judge to enjoy reelection had maintained his silence throughout the affair.79

The North Carolina Case

In Bayard v. Singleton,80 a North Carolina Superior Court eventually (but with considerable hesitation) declared an act of that legislature unconstitutional and void because it denied the plaintiff his right to jury trial. The law in question, passed in 1785, directed the courts to dismiss, on motion of defendants and without regard to the merits of a particular case, any suit brought before them which sought to recover lands sold under the state's Revolutionary confiscation act. The plaintiff, Bayard, brought such a suit against Singleton at the May 1786 term of the Superior Court. Singleton's attorney immediately moved for dismissal. Bayard's co-counsels, James Iredell and William Davie, who would both later become justices of the United States Supreme Court, challenged the law as unconstitutional and sought a jury trial before the court. Unfortunately, the pleas of the attorneys were not recorded by the court reporter, whose account of the case was not published until 1796. That account only indicates that after the justices heard "long arguments from the counsel on each side on constitutional points," the justices made comments of their own regarding the separation of powers. They also hinted their belief that the law was unconstitutional. They then continued the case for advisement.81

During the winter of 1786-7, the legislature called the justices before them to explain their action. An attempt to instruct the justices to abide by the act failed by a wide margin, 58 to 24. Thereafter, a committee appointed to investigate the matter reported that the justices had acted improperly by "disregarding or suspending one of the legislature's acts," but it recommended no disciplinary action. Another committee then recommended that the judges be discharged from the investigation because "they had not been guilty of malpractice in office."82

At the May 1787 term of the court, the defendant moved, once again, for dismissal. The court sought a compromise attempting unsuccessfully to persuade the defendant to voluntarily submit to a jury trial. The report states that the justices "then, after every reasonable endeavor had been used in vain for avoiding difference between the legislature and the judicial powers of the State, at length with much reluctance," denied the motion, took jurisdiction of the case and granted a jury trial. The jury then returned a verdict for the defendant. The report relates what was supposed to have been the court's reasoning, namely that the act was unconstitutional because "by the Constitution every citizen had undoubtedly a right to a decision of his property by a trial by jury."83

New Hampshire's Contribution

Even more than the Rhode Island and North Carolina cases, the New Hampshire cases were the most completely realized exercise of the power of judicial review which fully anticipated Marbury v. Madison. The New Hampshire cases were free of the objections one could raise in each of the others preceding the Convention, including the Rhode Island and North Carolina cases. In the Ten Pound Act cases, all members of the court had not only asserted the power, but actually used it. There had been no equivocation or delay by the judges. They had stated clearly in their judgments from the outset their declaration that the Ten Pound Act was "manifestly contrary to the Constitution" and that, as a consequence, they must disregard it. They then voided the judgments obtained under it. Most significantly, the judges held their ground against the legislature for over a year until, in the end, the law they opposed was repealed.

Sherburne's argument, as recorded in Treferrin v. Cate, anticipated the classic articulation of the doctrine of judicial review by Hamilton in The Federalist, #78 and Marshall in Marbury v. Madison: the superiority of the Constitution over statutory law, the limitation of the power of the legislature under the Constitution, the role of courts to interpret the fundamental law, and the unique responsibility of courts to be "the Constitutional Barriers between the power of the Legislature and the Liberty of the people." In the years to come, such notions would be established as the most basic principles of American constitutional law.

ENDNOTES

Editor's Note: Archaic spelling and capitalization is preserved in direct quotations.

1. 1 Cranch 137 (U.S. 1803).
2. 2 Dallas 409 (U.S. 1792).
3. 3 Dallas 171 (U.S. 1796).
4. For other instances in which federal courts or individual judges either asserted or tentatively exercised judicial review, see: United States v. Todd, 13 Howard 52 (U.S. 1794); Vanhorne's Lesse v. Dorrance, 2 Dallas 304 (PA 1795); and Calder v. Bull, 3 Dallas 386 (U.S. 1798).
5. 5 Laws of New Hampshire 101.
6. Charles Warren, The Making of the Constitution (Boston: Little, Brown & Company, 1937), pp. 336-7, quoting the following dispatch from Portsmouth, NH that was carried in the Independent Gazetter, Pennsylvania Packet, New York Daily Advertiser, and New York Journal, and distributed in Philadelphia on July 19, 1787: "The General Court during their late session repealed the ten pound act, and thereby justified the conduct of the Justices of the Inferior Court who have uniformly opposed it as unconstitutional and unjust."
7. Albert S. Batchellor, ed., Early State Papers of New Hampshire (Manchester, N.H.: John E. Clarke, Public Printer, 1891), 20:9.
8. Ibid., p. 15.
9. Ibid., pp. 15-16.
10. Ibid., p. 24.
11. Ibid., pp. 16, 26.
12. Ibid., pp. 1-15.
13. Ibid., pp. 12-13.
14. Ibid., pp. 28-29; Julius Goebel, Jr., History of the Supreme Court of the United States, Vol. 1: Antecedents and Beginnings to 1801, II vols. (New York: The Macmillan Company, 1971), 1: pp. 109-118.
15.

Laws of New Hampshire, 4: 34-36.

16. 60 NHSP , 20: 12.
17. Records of the Inferior Court of Common Pleas for Rockingham County, New Hampshire State Archives, Concord, N.H.; hereinafter cited as Records.
18. Ibid.
19. Ibid.
20. Ibid.
21. Ibid.
22. Ibid.
23.

Minute Book of the Inferior Court of Common Pleas for Rockingham County. February 1786 Term, New Hampshire State Archives, Concord, N.H.

24. Records; Minute Book.
25 Records.
26 Ibid.
27. Ibid.; William Plumer, William Plumer's Book, William Plumer Papers, New Hampshire State Library, Concord, N.H., pp. 244-7.
28. Records; Plumer, William Plumer's Book, pp. 244-7.
29. Records.
30. Ibid.
31. Ibid.
32. Ibid.
33. Ibid.
34. Ibid.
35. Ibid.
36. Ibid.
37. Ibid.
38. Ibid.
39.

Minute Book, May 1786 Term.

40. Records; Minute Book.
41. Records; Minute Book.
42. Records.
43. Ibid.
44.

Minute Book, November 1786 Term.

45. Records.
46. Ibid.
47. Ibid.
48. Ibid.
49.

Book of Judgments and Levies, Strafford County Superior Court, Dover, N.H.

50. Letters, Plumer, p. 384.
51. Petitions to the General Court, New Hampshire State Archives, Concord, N.H., hereinafter cited as Petitions.
52. Ibid.
53. Ibid.
54. Ibid.
55.

NHSP, 20: 634, 638, 592, 652.

56.

NHSP, 20: 652.

57.

NHSP, 20: 666.

58. Ibid.
59. Petitions.
60.

NHSP, 20: 704, 759, 762.

61. William Plumer, Plumer's Book, p. 247.
62. Petitions; NHSP, 21: 60, 67, 24.
63.

NHSP, 21: 73.

64. Ibid.
65.

NHSP, 21: 78-9.

66.

NHSP, 21:79, 83, 31.

67. See generally, Louis E. Boudin, Government By Judiciary, 2 vols. (New York: Russell and Russell, 1932); Edward S. Corwin, The Doctrine of Judicial Review (Princeton, NJ: Princeton University Press, 1914); William W. Crosskey, Politics and the Constitution in the History of the United States, 2 vols. (Chicago, IL: The University of Chicago Press, 1953), Vol. 2; Julius Goebel, Jr., History of the Supreme Court of the United States, Vol. 1: Antecedents and Beginnings to 1801 (New York: The Macmillan Company, 1971); and Raoul Berger, Congress vs. the Supreme Court (Cambridge: Harvard University Press, 1969).
68. Gordon S. Wood, The Creation of the American Republic, 1776-1787 (Chapel Hill, NC: 1969).
69. Thomas Jefferson, Notes on Virginia, ed. Peden, p. 120, quoted in Wood, Creation, pp. 451-2.
70. Max Ferrand, The Records of the Federal Convention of 1787, 4 vols. (New Haven, CT: Yale University Press, 1911), Vol. 1: 134, quoted in Berger, Congress, p. 10; Berger, Congress, pp. 8-46.
71. Leonard W. Levy, Judicial Review and the Supreme Court (New York: Harper & Row, 1967), pp. 1-42; Crosskey, Politics, 2: 938-75; Berger, Congress, pp. 8-46.
72. Henry M. Hart, Jr., "Professor Crosskey and Judicial Review," 67 Harvard Law Review (June 1954): 1463.
73. For a more complete discussion of this case, see: Goebel, History of the Supreme Court, pp. 137-141; and Crosskey, Politics, 2: 965-8.
74. Ibid.; James M. Varnum, The Case, Trevett against Weeden, Tried before the Honourable Superior Court in the County of Newport, September Term, 1786.
75.

Rhode Island Acts and Resolves, October 1786, pp. 5-6.

76. Crosskey, Politics, p. 966.
77.

Rhode Island Acts and Resolves, October 1786, pp. 3-7.

78. Ibid.
79. Varnum, The Case, Trevett against Weeden; Goebel, History of the Supreme Court, pp. 137-141; Crosskey, Politics, 2: 965-8.
80. 1 Martin 42 (N.C. 1787).
81. For a more complete discussion of this case, see: Goebel, History of the Supreme Court, pp. 129-131; and Crosskey, Politics, 2: 971-4.
82. Ibid.
83. Ibid.

The Author

Richard M. Lambert is a senior researcher in the Office of Legislative Services, Concord, New Hampshire. This article was derived from a master's thesis in political science that Lambert wrote for his degree at the University of New Hampshire in 1985. The author wishes to extend his thanks to Dr. Frank Mevers, NH State Archivist, and to his staff for their patience and invaluable assistance in researching the original sources; University of New Hampshire political science professor Robert B. Dishman, whose efforts in support and guidance of this research went far beyond those expected of a thesis advisor; and attorney Eugene Van Loan, for his encouragement and editorial assistance in preparing this article for publication in the New Hampshire Bar Journal.

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