Bar Journal - Winter 2006
PRECEDENTS FOR JUDICIAL REVIEW IN NEW HAMPSHIRE: An Introduction to Further Research
By: Attorney Eugene M. Van Loan III
In its March, 2002 edition, the New Hampshire Bar Journal printed an excerpt from the previously unknown, but thoroughly original, master’s thesis of Richard M. Lambert entitled “The “Ten Pound Act” Cases and the Origins of Judicial Review in New Hampshire.”1 Mr. Lambert’s research had uncovered the records of at least six and perhaps as many as eleven unpublished cases from the 1780s in which the trial courts of New Hampshire had refused to enforce a state statute on the grounds that it conflicted with a provision of the New Hampshire Constitution. Besides being the first known exercise of the power of judicial review in New Hampshire, these cases were perhaps the first instance of its exercise anywhere in the thirteen original states. As such, these decisions—known colloquially as the “Ten Pound Act Cases”—were a part of the intellectual baggage carried by the Framers to the Philadelphia Convention of 1787 and thus had a material impact upon the formation of the Constitution of the United States.
Given the importance of the Ten Pound Act Cases to the history of judicial review at the federal level, the irony is that there is scant documentary evidence of their impact upon the development of the doctrine in New Hampshire. This is especially reflected in the fact that New Hampshire’s counterpart to Marbury v. Madison,2 the 1818 decision of our Supreme Court in the case of Merrill v. Sherburne,3 never even mentions the Ten Pound Act Cases.4 Instead, the Court cited four of its own unpublished decisions - Gilman v. M’Clary, Chickering v. Clark, Butterfield v. Morgan, and Jenness v. Seavey - all of which were decided after the Ten Pound Act Cases.5
When I wrote the Introduction to the Bar Journal’s publication of Mr. Lambert’s article, it occurred to me that someone ought to try to locate these supposed precedents for judicial review in New Hampshire - if for no other reason than to preserve the historical record. Indeed, I discussed it with Mr. Lambert and we decided that we would take this project on—someday.
However, like so many things on all of our agendas, this item just never seemed to work its way to the top of the pile. Then, this spring, in the course of researching something else, I stumbled upon a citation to an article by a Timothy Lawrie in the American Journal of Legal History. It was entitled “Interpretation and Authority: Separation of Powers and the Judiciary’s Battle for Independence in New Hampshire, 1786-1818.”6 My curiosity having been piqued, I obtained a copy. And there it was - a complete and thorough review of the cases cited by the Court in Merrill v. Sherburne!
Although disappointed that Mr. Lambert and I could not claim the credit for having plugged this hole in the history of judicial review in New Hampshire, I was delighted to see that the hole could be plugged and that the source documents were apparently still in existence. Accordingly, Mr. Lambert and I still have it on our “to do” list to track all of these records down and make copies of them for the New Hampshire Law Library so that they are easily accessible.7
In the meantime, the other step that I took was to try to locate Mr. Lawrie in order to obtain his permission to reprint his article in a publication which would expose it to a New Hampshire audience. Thanks to the staff of the New Hampshire Bar Journal, this has been accomplished and Mr. Lawrie’s article is reprinted in the following pages. I suggest that those of you who, like myself, think that one can better determine where we ought to be going by seeing where we have been will find Mr. Lawrie’s article very interesting.
Beyond filling a gap in our historical knowledge, Mr. Lawrie’s article also raises some interesting points which challenge the conventional wisdom about the justification for judicial review and its proper limits in our political system. Many Americans today—including many lawyers—uncritically accept the modern notion that the judiciary’s authority to determine questions of constitutionality is (1) legitimate, (2) exclusive, (3) final, and (4) supreme. None of these propositions, however, are God-given. Indeed, as Mr. Lawrie demonstrates, there is good reason to be skeptical about each one of them.
In the next issue of the Bar Journal, I will will explore some of the questions raised by Lawrie’s research which challenge the conventional wisdom about the justification for judicial review and its proper limits in our political system.
1. 43 N.H. B.J. 37 (2002). Mr. Lambert’s thesis for a Master’s Degree in Political Science at the University of New Hampshire was written in 1985.
2. 5 U.S. (3 Cranch) 137 (1803).
3. 1 N.H. 199 (1818).
4. In this regard, note my use of the term “documentary” to describe the kind of evidence we are lacking of the influence of the Ten Pound Act Cases upon the doctrine of judicial review in New Hampshire. As Mr. Lambert points out in his article, the actions of the judges of the inferior courts of Rockingham and Strafford Counties in the Ten Pound Act Cases were very well known at the time. On the other hand, although it is true that the New Hampshire Supreme Court does not generally cite the decisions of its junior courts, it is still curious that the Ten Pound Act Cases have never even been mentioned by our Supreme Court as precedents for judicial review.
5. 1 N.H. at 215-216. Technically, the Court did not cite these cases for the proposition that it possessed the power of judicial review; it cited them for the proposition that the Legislature could not constitutionally grant new trials to litigants who were disappointed with the results of their court trials, which was the matter at issue in the Merrill case. Indeed, despite the conventional wisdom that Merrill v. Sherburne was the first N.H. case to articulate the doctrine of judicial review, the reality is that the Court simply took judicial review for granted. See also, Morey v. Proprietors of Oxford Bridge, Smith’s Reports 91, 94 (1804) (If Legislature were to pass an act contrary to a provision of the Constitution, it “would be an unconstitutional act which no court could or would regard”) (dictum). The real issue in Merrill was not the Court’s power to determine issues of constitutionality, but whether the legislative act in question was in fact constitutional. Frank R. Kenison, “The Judiciary Under the New Hampshire Constitution, 1776-1976,” p. 19 (N.H. American Revolution Bicentennial Comm. 1977). Interestingly enough, Marbury v. Madison suffers from the same popular misconception. Although Chief Justice Marshall did raise a question as to whether the Court had the power to declare an act of Congress unconstitutional, he did it in such way that an affirmative answer appeared to merely state the obvious (“If an act of the Legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” Marbury v. Madison, 5 U.S. at 177). Indeed, the really controversial aspect of Marbury did not even involve a matter of constitutional law; it involved the common law question of whether President Adams’ appointment of Mr. Marbury as a justice of the peace was effective notwithstanding the failure of the courier from the Department of State (who was John Marshall’s brother) to deliver the signed commission prior to the expiration of Adams’ term of office and, if so, whether the common law provided a remedy to vindicate Mr. Marbury’s rights. (“The government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.” Id. at 163.) See generally, Davison Douglas, “The Rhetorical Uses of Marbury v. Madison: The Emergence of a ‘Great Case’ “, 38 Wake Forest L. Rev. 375 (2003) (“Between 1863 and 1887, the Supreme Court never once cited Marbury for the principle of judicial review, and nineteenth century constitutional law treatises were far more likely to cite Marbury for the decision’s discussion of writs of mandamus or the Supreme Court’s original jurisdiction than for its discussion of judicial review.”)
6. 39 Am. J. Legal Hist. 310 (1995).
7. In fairness to Mr. Lambert, I should note that he had already uncovered a few of these records in the course of his research on the Ten Pound Act Cases. However, they were not the focus of his efforts and, therefore, his files do not contain a complete copy of the records of all four of the cases cited by the Court in Merrill. There do exist occasional references to some of these cases, especially the case of McClary v. Gilman, in various books and articles dealing with New Hampshire’s early constitutional history (see, e.g. John Phillip Reid, CONTROLLING THE LAW, p. 197 (No. Ill. U. Press, 2004) and Lynn W. Turner, WILLIAM PLUMER OF NEW HAMPSHIRE, P. 34-35 (U. of N.C. Press, 1962)), but Mr. Lawrie’s article is clearly the definitive work in this area.
Eugene M. Van Loan, III, is a partner in the law firm of Wadleigh, Starr & Peters, P.L.L.C, Manchester. His practice includes hospital & health care law, and commmercial and business litigation, and he has a special interest in constitutional law. He last wrote for the Bar Journal in 2002, when he collaborated on “The Ten Pound Acts,” an article researching and discussing the origins of judicial review in the immediate post-Revolutionary War era in New Hampshire.