WORKING FROM CENTURIES -old New Hampshire court records, a researcher has solved a historical mystery: the origins of judicial review that predated the landmark Marbury v. Madison Supreme Court decision by 17 years.

In fact, asserts Richard Lambert in an article published in the March 2002 issue of NH Bar Journal, the actions of the four judges of the Inferior Court of Rockingham County in 1786-1787 – and the Legislature, which resisted and then yielded to the court’s finding that a new law was unconstitutional – may have even influenced the writers of the US Constitution convened in Philadelphia.

The controversy arose over the "Ten Pound Act," a new law that limited the right to a trial by jury for debt-collection cases of less than 10 pounds. In at least six cases, Rockingham County judges had ruled that the Ten Pound Act was unconstitutional and set aside verdicts. Although the subsequent constitutional tussle in the NH Legislature was written up in newspaper accounts of the day, there Bar Journal author Richard Lambert, a senior researcher in the Office of Legislative Services, delved into 18th century New Hampshire court and legislative records to document the early articulation of the principle of judicial review in a series of small-claim debt-collection actions that almost triggered a constitutional crisis in New Hampshire. was no official or centralized reporting of decisions at the time, and exactly how and why the judges took the bold step of invalidating laws before the doctrine of judicial review had been established were lost in time.

According to Lambert, who today works as a senior researcher in the Office of Legislative Services, the most authoritative historians of the US Constitution and New Hampshire legal history had made only vague (and sometimes incorrect) references to the controversy over the "Ten Pound Act" cases in New Hampshire that predated the 1803 Marbury v. Madison decision of the US Supreme Court. Neither the named parties in the cases nor the courts that decided them were known, much less the reasoning that the judges used.

In the mid-1980s, Lambert, then a candidate for a master’s degree in political science, went in search of these sketchy precedents, and found them. He was fortunate to begin his search for original documentation at the same time that the NH State Archives were receiving 18th-century court records rescued from the attic of the Rockingham County nursing home. Lambert’s research also involved legislative records, newspapers and manuscript collections.

Lambert’s research, too, has been rescued from obscurity. Submitted as his master’s thesis in 1985, his findings languished unpublished in the library of the University of New Hampshire until he was encouraged by a personal acquaintance, Manchester attorney Eugene Van Loan, III, to submit an article based on them to Bar Journal. Van Loan, who also has written extensively on the New Hampshire Constitution, helped Lambert condense the manuscript for publication and wrote a preface providing additional historical context. (Interestingly, Van Loan’s interest in judicial review is more than historical — he has been an outspoken opponent of the NH Supreme Court’s Claremont decisions and recently helped draft legislation that would limit the Supreme Court’s ability to scrutinize legislation enacted in response to Claremont.)

Van Loan, in his preface, said Lambert’s research will prove interesting to Bar members and others who believe "that one of the best ways to learn where we are going is to understand where we have been."

Lambert literally unraveled the history of the Ten Pound Act controversy by searching for the cases among court papers neatly rolled into scrolls tied with bits of string, and in docket books written in elaborate, almost calligraphic script by quill-pen wielding clerks and magistrates who no doubt were writing by candlelight.

One judge recorded in detail the oral argument of Samuel Sherburne, the lawyer who is believed to have first advanced the constitutional argument against the Ten Pound Act who also asserted that it was the duty of the judges to set aside any verdicts brought under it. (See sidebar below.)

Sherburne argued that it had been customary practice before and after the enactment in 1784 of the NH Constitution for disputes involving debts of more than 40 shillings to be tried before juries in the county courts. Furthermore, he maintained, the Ten Pound Act violated Article 20 of the NH Constitution, which provided that "in all controversies concerning property and in all suits wherein it has been heretofore otherwise used and practised [sic], the Parties have a right of trial by jury."

In at least six cases, judges agreed with that constitutional interpretation and set aside judgements made according to the Ten Pound Act by local justices of the peace. Disappointed litigants petitioned the Legislature to enforce the law, and the NH House of Representatives debated impeaching the judges, but then relented and ultimately repealed the Ten Pound Act in June 1787.

"The ensuing political confrontation, which lasted for over a year, eventually involved most of the leading figures of the state at the time," Lambert wrote. " Men such as John Langdon (merchant, shipbuilder and statesman), General John Sullivan (attorney and state president), John Pickering (attorney and author of the state’s constitution), Nathaniel Folsom (Revolutionary general and judge), and attorneys Samuel Sherburne and William Plumer (later governor and US senator) were forced to take a stand as the legislative and judicial branches squared off in the dispute."

Lambert recounts how New Hampshire judges and lawyers, in the difficult economic times of the post-Revolutionary era, tested the limits of judicial power set forth in a newly written state constitution. The judges tilted against heavy political pressure and against lawmakers who were irate at having their lawmaking ability challenged by the assertion of an implicit principle — the judiciary’s primacy in interpreting the constitution.

A constitutional crisis was averted when the Legislature, after considering several petitions seeking to resolve the confusion over the law and the potential impeachment of the Rockingham County judges, formed a committee to review the issue. That committee, instead of recommending impeachment, came back with a finding that supported the judges’ decisions. The House and Senate subsequently passed a repeal of the Ten Pound Act, resolving the impasse.

"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,’" Lambert wrote. "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," he wrote. "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 an interview, Lambert said that it is most revealing of "original intent" that the same individuals who were leaders in the Legislature at the time of the Ten Pound Act controversy had, only three years earlier, played roles in the development of NH’s Constitution. "My research proves that the framers of New Hampshire’s constitution fully intended the court to possess the powers of judicial review," Lambert said.

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