Bar Journal - March 1, 2002
Ten Pound Acts: An Introduction to Original Research on the Origins of Judicial Review
By: Attorney Eugene M. Van Loan III
One of the basic tenets of American political history is that the doctrine of "judicial review", i.e., the power of the Judiciary to declare the acts of the Legislature or the Executive unconstitutional and therefore unenforceable, was invented by Chief Justice John Marshall in 1803 in the U.S. Supreme Court case of Marbury v. Madison. Indeed, Marshall cited no legal precedents for his view, relying instead upon philosophical arguments about the nature of a government of enumerated powers and the implications of a written constitution. Nevertheless, it has long been accepted that he was not writing upon a tabula rasa.
It is generally acknowledged that judicial review is not a textually-based concept. In this regard, the power of courts to invalidate the acts of a coordinate branch of government is nowhere expressly mentioned in the Federal Constitution. The same is true of the constitutions of all of the original thirteen states. As stated by James Bradley Thayer in an influential article which he wrote for the 1893 edition of the Harvard Law Review entitled The Origin and Scope of the American Doctrine of Constitutional Law:
How did our American doctrine which allows to the Judiciary the power to declare legislative Acts unconstitutional, and to treat them as null, come about, and what is the true scope of it? It is singular fact that the State constitutions did not give this power to the judges in express terms; it was inferential. In the earliest of these instruments no language was used from which it was clearly to be made out.
The most notable of the pre-Marbury precedents for the doctrine of judicial review consisted of the words of the Framers themselves. Especially important was Alexander Hamilton's FEDERALIST #78, written prior to ratification of the U.S. Constitution, in which he asserted that "no legislative act ... contrary to the Constitution can be valid." Similarly, when advocating a Bill of Rights in the First Congress, James Madison declared that "independent tribunals of justice will consider themselves in a peculiar manner the guardians of these rights."
Less well-known is the fact that at least three of the original thirteen colonies had already experienced the exercise of judicial review prior to the formation of the Union - and that the men who met in Philadelphia in 1787 were quite familiar with the circumstances surrounding these events. Coincidentally or not, it was our own State of New Hampshire which was not only the first of the states to adopt its own constitution after the break with Great Britain and was the state to supply the critical ninth vote to ratify the Federal Constitution, but it was also the state which supplied the earliest and the most important precedent for the doctrine of judicial review.
The extant scholarship concerning the New Hampshire and the other early state precedents is summarized by Professor Leonard Levy in his 1967 history of the subject entitled JUDICIAL REVIEW AND THE SUPREME COURT:
Beard, Corwin, McLaughlin, Charles Warren, and Charles Grove Haines head a list of distinguished historians who believed that judicial review was so well known and normal a function of courts that it was taken for granted by the framers. One difficulty with this view is that the evidence is so sparing.... There are but two legitimate precedents, both reported in the Philadelphia press when the Convention was in session. In the "Ten Pound Case" in New Hampshire, the court courageously voided an unconstitutional act in the face of threats from the legislature. An abortive attempt to impeach the judges failed by a vote of 35 to 21. Very much the same thing happened in North Carolina in the case of Bayard v. Singleton, the only other legitimate precedent.
Note that Levy gives no real detail about New Hampshire's so-called Ten Pound Act Cases; he merely acknowledges their existence and attests to their contemporary fame. So what do we know about them? As Levy makes clear in his comprehensive ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION, the answer is not much: "These cases, about which little is known (not even the names of the litigants are known), are notable as the first instances in our history of a state court's holding unconstitutional an act of a state legislature.... Our scanty knowledge of the cases derives from newspaper reports and legislative records." Here is the sum total of what Levy reports that these secondary sources reveal:
The Inferior Court of Common Pleas of Rockingham County, sitting in Portsmouth, New Hampshire, in 1786 and 1787, voided the "Ten Pound Act," which had been passed in 1785 for the speedy recovery of small debts....The act of 1785 allowed justices of the peace to try certain civil cases, involving sums less than ten pounds, without juries. The state constitutional guarantee of trial by jury extended to all civil cases except those which juries customarily did not try. New Hampshire practice had previously allowed a justice of the peace to try a case without a jury if the sum amounted to less than two pounds. After the court ruled that the act conflicted with the right to trial by jury, petitions to the state House of Representatives demanded impeachment of the judges. The House, by a 3-1 majority, voted that the act was constitutional, but the judges stood by their initial decision or reaffirmed it in another case. Following the failure of a motion to impeach the judges, the house capitulated and repealed the Ten Pound Act.
Unfortunately, New Hampshire's own constitutional historians seem to have been less well informed about the Ten Pound Act Cases than even national experts such as Levy. For example, Richard Upton could find so little about the Ten Pound Act Cases that he even questioned their authority as a precedent for the doctrine of judicial review. To make matters worse, he confused the Ten Pound Act with an earlier statute which apparently also dealt with claims of debt and coincidentally had a reference to the figure of ten pounds. As he wrote in his 1938 unpublished Harvard Law School thesis, Separation of Powers in New Hampshire:
The first time that a New Hampshire court declared an act of the legislature unconstitutional has never been accurately determined. In 1782 the legislature passed "An Act For the Relief of Poor Debtors", which provided that any person imprisoned for debt might, after two months in jail, swear out a statement that he possessed less than a 10 pound estate, and upon the receipt of such a sworn statement any justice of the Court of Common Pleas was empowered to order his release, unless his creditors agreed to pay his board during the balance of his term. After the Constitution of 1784 went into effect, several justices of the court of Common Pleas became convinced that this act was unconstitutional and accordingly refused to order the release of prisoners for debt, even when presented with sworn statements as required by the act. In 1787 the legislature repealed the act in response to this judicial opposition. The facts of this affair, however, are so incomplete that it is difficult definitely to classify it as an example of judicial review in its ordinary sense.1
One of the reasons for the lack of available information concerning the Ten Pound Act Cases is the fact that the earliest decisions of New Hampshire's courts, including the Supreme Court, have never been collected and published. For example, Volume 1 of the NEW HAMPSHIRE REPORTS begins with cases decided in 1816 - despite the fact that the Supreme Court had been in existence since 1784 when New Hampshire's present constitution was adopted. But see, SMITH'S REPORTS. As a result, the only basis for even believing that the Ten Pound Act Cases actually existed has been the references to them in secondary sources.2
However, what the academic world did not know - until today - was that someone has indeed documented the existence of the Ten Pound Act Cases and, more importantly, that this person has identified the original court records in which they appear. In 1985, then candidate for a Masters in Political Science at the University of New Hampshire, Richard M. Lambert,3 wrote a thesis entitled The "Ten Pound Act" Cases and the Origins of Judicial Review in New Hampshire. In his thesis - which has languished unpublished in the tombs of the UNH Library for the last fifteen years - Mr. Lambert recites the full history of at least six and perhaps as many as eleven instances in which a New Hampshire court ruled the Ten Pound Act unconstitutional.4 Accordingly, in his extremely thorough and well-researched paper, Mr. Lambert provides proof positive of the role of New Hampshire's judiciary in the development of the uniquely American doctrine of judicial review.
It is not often that one has the opportunity to personally witness the solving of an historical mystery. This is such an occasion and it is very exciting. The New Hampshire Bar Association therefore takes great pride in publishing the following excerpt of Mr. Lambert's thesis. It is anticipated that Mr. Lambert's discoveries will be of great interest not only to constitutional scholars in general, but also to those members of the New Hampshire Bar, who, like myself, believe that one of the best ways to learn where we are going is to understand where we have been.
Former Chief Justice Frank Kenison, in an article written in celebration of the bicentennial of New Hampshire's Revolutionary War constitution, the Constitution of 1776, repeated Upton's error and added a new one of his own:
The history of the first instance of judicial review in New Hampshire has not been written. Certain facts, however, are known. In 1782 the legislature passed a law permitting persons imprisoned for debt to obtain their release, after two months in jail, by taking an oath that they had an estate of less than £ 10. It is clear that courts, in some cases at least, refused to order the release of persons who had sworn the prescribed oath. Unfortunately, there is no modern account of the reasons given for this action. The statute in question does not appear to violate a specific prohibition of the constitution. Conceivably the courts regarded the statute as contrary to natural law, which would be a novel ground for decision.
The Judiciary Under the New Hampshire Constitution, 1776-1976 in THE FIRST STATE CONSTITUTION (N.H. Am. Bicentennial Commission, 1977), p. 19 (emphasis supplied). Finally, Mr. Upton's and Justice Kenison's misunderstanding of the Ten Pound Act Cases was reiterated by Charles G. Douglas III in his 1977 New Hampshire Bar Journal article Judicial Review and the Separation of Powers under the New Hampshire Constitutions of 1776 and 1784. 18 N.H.B.J. 250, 262 (1977).
Note also that the case of Merrill v. Sherburne, which appears in 1 NH and is New Hampshire's counterpart to Marbury v. Madison, never even mentions the Ten Pound Act Cases.
Mr. Lambert is now employed by the New Hampshire Legislature as a senior researcher in the non-partisan Office of Legislative Services located in the State House in Concord.
Mr. Lambert's article also describes the only other genuine state precedents, the 1787 North Carolina case of Bayard v. Singleton and the 1786 Rhode Island case of Trevett v. Weeden.
Attorney Eugene M. Van Loan III is a partner with the firm of Wadleigh, Starr & Peters, P.L.L.C., Manchester, New Hampshire.