2006 Winter, 32. PRECEDENTS FOR JUDICIAL REVIEW IN NEW HAMPSHIRE An Introduction to Further Research.

AuthorBar Journal Author - Attorney Eugene M. Van Loan III

New Hampshire Bar Journal


2006 Winter, 32.


New Hampshire Bar Journal Volume 46, No. 4, Pg. 32Winter 2006PRECEDENTS FOR JUDICIAL REVIEW IN NEW HAMPSHIRE An Introduction to Further ResearchBar Journal Author - Attorney Eugene M. Van Loan IIIIn 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."(fn1) 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 Lambert's research had uncovered the records of at least six and perhaps as many as eleven unpublished cases from the 1780s in which the trial courts of New Hampshire had refused to enforce a state statute on the grounds that it conflicted with a provision of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,(fn2) the 1818 decision of our Supreme Court in the case of Merrill v. Sherburne,(fn3) never even mentions the Ten Pound Act Cases.(fn4) Instead, the Court cited four of its own unpublished decisions - Gilman v. M'Clary,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.(fn5)

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...

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