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Coke, Corwin and the Constitution: The “Higher Law Background” Reconsidered

Published online by Cambridge University Press:  05 August 2009


In recent years the debate over the nature and extent of judicial power in the United States has been dominated by questions concerning moral theory, unwritten constitutions, and natural law. In a significant sense, the contemporary discussion is but the continuation of the theory of judicial review first put forth by Edward S. Corwin in 1910–1911; it was this theory that the “higher law background” of American constitutional law derived from the dicta of Sir Edward Coke's opinion in Bonham's Case (1610) that was given its most complete expression in Corwin's famous two-part article in the Harvard Law Review in 1928–29. The fact is, the influence of Coke's opinion in Bonham's Case came from within the scholarly world; its significance stems not from history but from the historians; it was largely Corwin's creation. This paper seeks to correct the record and to show the deficiencies of Corwin's understanding about the relationship of the “higher law” to the American Constitution.

Research Article
Copyright © University of Notre Dame 1993

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I am indebted to the Woodrow Wilson International Center for Scholars, the Harvard Law School, the Lynde and Harry Bradley Foundation, and the John M.Olin Foundati on for the support which made the research and writing of this article possible. I am also deeply grateful to those who read and commented on earlier drafts: Raoul Berger, Walter Berns, Mary Ann Glendon, Stephen Macedo, and James Stoner.

1. 8 Co. Rep. 107a (1610). The literature on Bonham's Case is voluminous. Among the most significant contributions have been Plucknett, Theodore F. T., “Bonham's Case and Judicial Review,” Harvard Law Review 40 (1926): 30CrossRefGoogle Scholar; Thorne, Samuel E., “Dr. Bonham's Case,” Law Quarterly Review 54 (1938): 543Google Scholar; and Raoul Berger, “Dr. Bonham's Case,” Appendix A, in Congress v. The Supreme Court (Cambridge, MA: Harvard University Press, 1969), pp. 349–68.Google Scholar See also Cook, Harold J.,” Against Common Right and Reason: The College of Physicians Versus Bonham, Dr. Thomas,” American Journal of Legal History 29 (1985): 301CrossRefGoogle ScholarPubMed; Lewis, John Underwood, “Sir Edward Coke (1552–1633): His Theory of ‘Artificial Reason' as aContext for Modern Basic Legal Theory,“ Law Quarterly Review 84 (1968): 530Google Scholar; and Ii, George P. Smith, “Dr. Bonham's Case and the Modern Significance of Lord Coke's Influence,“ Washington Law Review 41 (1966): 297.Google Scholar For a general account of Coke's legal and judicial career, see Holdsworth, William S., History of English Law, 17 vols. (London: Metheun & Co., 1938), 5:423–93.Google Scholar For a broader consideration of his life see Bowen, Catherine Drinker, The Lion and the Throne: The Life and Times of Sir Edward Coke (Boston: Little Brown, 1956).Google Scholar Also worthy of note is Pollock, Frederick, The Expansion of the Common Law (Boston: Little Brown, 1904).Google Scholar

2. 8 Co. Rep. 118a.

3. Rutgers v. Waddington (New York, 1784)Google Scholar; Trevett v. Weeden (Rhode Island, 1786)Google Scholar; Bayard v. Singleton (North Carolina, 1787)Google Scholar; Holmes v. Walton (New Jersey, 1780)Google Scholar; the Symsbury Case (Connecticut, 1785)Google Scholar; Commonwealth v. Caton (Virginia, 1782).Google Scholar James Iredell said of Bayard that the fundamental quality of the Constitution did not stem from natural law, but from the fact that it was a “law in writing.” Such a constitution, he argued, is not “a mere imaginary thing about which ten thousand different opinions may be formed, but a written document to which all may have recourse, and to which, therefore, the judges cannot witfully blind themselves. “As quoted in Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1967), pp. 460–63.Google Scholar

4. Day v. Savadge (1614), 80 Eng. Rep. 235, where Coke is not cited; City of London v. Wood (1702), 88 Eng. Rep. 1592, where Coke is cited.

5. The most comprehensive recent effort has been that of Thomas Grey. Yet while Grey's historical digging produced a powerful case for the idea of unwritten higher law in the early American political tradition, he left the argument making a clear connection with the post-1787 judicial tradition of constitutional review dependent upon “further examination.” Grey, Thomas, “Origins of the Unwritten Constitution: Fundamental Law in American Revolutionary Thought,” Stanford Law Review 30 (1978): 843, 893.CrossRefGoogle Scholar There have been serious questions raised about Grey's thesis, the most powerful being Berns, Walter, “Judicial Review and the Rights and Laws of Nature,” The Supreme Court Review: 1982 (Chicago: University of Chicago Press, 1983), pp. 4983.Google Scholar In addition to Grey there has also been Sherry, Suzanna, “The Founders' Unwritten Constitution,” University of Chicago Law Review 54 (1987): 1127.CrossRefGoogle Scholar Severe defects in Sherry's thesis have similarly been exposed. See Michael, Helen K., “The Role of Natural Law in Early American Constitutionalism: Did the Founders Contemplate Judicial Enforcement of ‘Unwritten' Individual Rights?”, North Carolina Law Review 69 (1991): 421.Google Scholar On the separate but related question of the Founders' intentions as the basis of contemporary constitutional construction see Powell, H. Jefferson, “The Original Understanding of Original Intent,” Harvard Law Review 98 (1985): 885.CrossRefGoogle Scholar In response to Powell's thesis that the original intention was that intention was not to govern, see Berger, Raoul, “‘Original Intention' in Historical Perspective,” George Washington Law Review 54 (1986): 296Google Scholar; Lofgren, Charles, “The Original Understanding of Original Intent?Constitutional Commentary 5 (1988): 77Google Scholar; and Mcdowell, Gary L., “The Politics of Original Intention,” in The Constitution, the Courts, and the Quest for Justice, ed. Goldwin, Robert A. and Schambra, William A. (Washington, D.C.: American Enterprise Institute), 1989, pp. 124.Google Scholar

6. Goebel, Julius Jr., History of the Supreme Court of the United States: Antecedents and Beginnings to 1801 (New York: Macmillan, 1971), p. 202.Google Scholar

7. George Clinton, 6.13.10, and “Cato's Letters,” 2.6.34, both citing the Second Institute on the need for certainty in political compacts (in their criticism of the new constitution as too vague); “Letters from the Federal Farmer,” 2. 8.190, on the power of juries; “Essay by a Farmer,” 5. 1.8, noting Coke as the author of the petition of right under Charles I; and “Essays by Cincinnatus,” 6. 1. 10. All references are to Storing, Herbert J., ed., The Complete Anti-Federalist, 7 vols.(Chicago: University of Chicago Press, 1981).CrossRefGoogle Scholar The citations are to volume; document in the volume; and the paragraph of the document being cited. Thus 2.8.190 indicates that the Federal Farmer's essays are the eighth document in volume two; the citation is to paragraph 190.

8. Cooke, Jacob E., ed., The Federalist (Middletown, CT: Wesleyan University Press, 1961), No.78, p. 523Google Scholar, quoting, not insignificantly, Montesquieu's belief that of the three great powers of government that the judiciary is “next to nothing.”

9. Ibid., No.84, passim. Indeed, interpretation required not any mystical “artificial reason” or ambiguous “higher law.” Hamilton, Said: “The rules of legal interpretation are the rules of common sense, adopted by the courts in the construction of the laws.” No. 83, p. 559.Google Scholar

10. Michael, , “The Role of Natural Law in Early American Constitutionalism,” p. 480.Google Scholar

11. The most complete account of this case is to be found in Goebel, Julius Jr., ed., The Law Practice of Alexander Hamilton, 2 vols.,(New York: Columbia University Press, 1964), 1: 282543.Google Scholar

12. Ibid. See also Goebel, , History of the Supreme Court of the United States, pp. 131–37.Google Scholar

13. 1 Cranch 137 (1803).

14. 6 Cranch 87 (1810).

15. 6 Wheaton 264 (1821).

16. 4 Wheaton 316 (1819).

17. Gunther, Gerald, ed., John Marshall's Defense of McCulloch v. Maryland (Stanford: Stanford University Press, 1969), p. 209.Google Scholar

18. 1 Cranch 137,.

19. Gunther, , ed., John Marshall's Defense, p. 168.Google Scholar

20. 3 Dallas 386 (1798).

21. 3 Dallas 199 (1796).

22. Kent, James, Commentaries on American Law, 4 vols. (New York: Printed for the Author, 1840), 1: 447–48.Google Scholar

23. Ibid., pp. 448–49.

24. “The adoption and practice of setting up written state constitutions was soon to render Coke's doctrine unnecessary. Common right is vague at best, and cannot compare with a well-drawn constitution as a check upon legislative action.” Plucknett, , “Bonham's Case and Judicial Review,” p. 68.Google Scholar

25. The Federalist, No.1, p. 3; No.78, p. 525.

26. The most celebrated use of Coke, that of James Otis, was not an argument for some abstract notion of “higher law”; it was a legal argument in behalf of the common law rights of Englishmen (which his countrymen still were) against what he saw as the pretensions of Parliament. That Bonham's Case might have been an appropriate precedent for that situation goes without saying. But that the dictum drops from sight after the Revolution and the founding of the new republic is of great significance to our proper understanding of the role of Coke's theory in the establishment of judicial review. See Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, MA: Harvard University Press, 1967), pp. 175–98.Google Scholar

27. Contemporary scholars “have had some difficulty in explaining the appearance of the principle in Bonham's Case. They likewise have been troubled by Rozvles v. Mason [2 Brown 1.198] decided two years afterward, which they are forced to regard as a retreat by Coke from the position he had taken earlier. The fact that the statement as interpreted makes no appearance in Coke's Institutes… has also been a constant source of embarrassment.” And the reason is clear: “Coke's argument… furnished a form of words which soon became separated from the case in which they had been uttered, but when they are returned to their proper place, Coke's ambitious political theory is found not to be his but the work of a later generation of judges, commentators, and lawyers” (Thorne, , “Dr. Bonham's Case,” pp. 545; 552)Google Scholar.

28. As Holdsworth, has said: “[Coke's] writings form the starting point of the modern as distinct from the medieval common law, because in them medieval rules are so harmonized with the modern additions, that they fitted the common law to guide the future legal development, not only of England, but also of the many dominions which Englishmen were to found beyond the seas” (History of English Law, 5:424-25).Google Scholar

29. See Corwin, Edward S., The “Higher” Law Background of American Constitutional Law (Ithaca: Cornell University Press, 1955), p. 46.Google Scholar

30. “Coke's overall conception is substantially similar to Fortescue's and St. Germain's. Like his predecessors … Coke sees God as the source of all law…. [E]ven more than St. Germain and Fortescue [Coke] views English law as consisting in and being drawn from an unsystematic mass of ancient rules which, nonetheless, are unfathomably wise…. The jurisprudence of St. Germain, Fortescue, and Coke… is a conventional restatement of the views of theologians such as St. Thomas Aquinas and John Gerson… [and] is rooted firmly in Aristotelian concepts” (Siegel, Stephen A., “The Aristotelian Basis of English Law, 1450–1800,” New York University Law Review 56 [1981]: 18, 28; 30; 39).Google Scholar As Co argued in Calvin's Case: “The law of nature is that which God at the time of creation on the nature of man infused into his heart, for his preservation and direction; and this is Lex aeterna, the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed before the law was written by Moses, who was the first reporter or writer of law in the world.” And, Coke concluded, that this law of nature was unchangeable “appeareth plainly and plentifully in our books” (7 Co. Rep. 1,12b; 13b). Thorne, Samuel E., ed., “Introduction” to A Discourse Upon the Exposicion & Understandinge of Statutes (San Marino: Huntington Library, 1942), p. 89.Google Scholar “Coke's authorities were becoming valueless in the face of new habits of thought, and, though the words of his report did not in fact ‘import any new opinion,' and were, as he said, ‘only a relation of such authorities of law as have been adjudged and resolved in former times,' they contemplated, nonetheless, what was in many respects the revival of an obsolescent view” (Ibid., p. 90).

31. “The doctrine of Locke may be described as the peak of modern natural law…. It seems safest to understand his doctrine as a profound modification of the Hobbesian doctrine” (Strauss, Leo, “On Natural Law,” in Studies in Platonic Political Philosophy [Chicago: University of Chicago Press, 1983]).Google Scholar See also Strauss, Leo, Natural Right and History (Chicago: University of Chicago Press, 1953)Google Scholar, and The Political Philosophy of Hobbes (Chicago: University of Chicago Press, 1938)Google Scholar; Pangle, Thomas, The Spirit of Modern Republicanism (Chicago: University of Chicago Press, 1988)Google Scholar; Grant, Ruth, John Locke's Liberalism (Chicago: University of Chicago Press, 1989)Google Scholar; and Kraynak, Robert P., History and Modernity in the Thought of Thomas Hobbes (Ithaca: Cornell University Press, 1990).Google Scholar A slightly different, and veryimportant interpretation of the respective influences of Coke and Hobbes, one that seeks to explicate how each in his own way influenced the American theory of judicial review is Stoner, James R. Jr., Common Law & Liberal Theory: Coke, Hobbes, & the Origins of American Constitutionalism (Lawrence, KS: University of Kansas Press, 1992).Google Scholar Stoner's book is one of the most important contributions to our understanding of the roots of American constitutionalism to appear in many years.

32. Corwin's, first published essay was “The Supreme Court and Unconstitutional Acts of Congress,” Michigan Law Review 4 (1906): 616.CrossRefGoogle Scholar In that essay there is no discussion of Bonham's Case or any of Coke's many other opinions. Nor does he raise Coke in his second article, “The Supreme Court and the Fourteenth Amendment,” Michigan Law Review 7 (1909): 643.CrossRefGoogle Scholar It is not until his third article, a two-par offering, on “The Establishment of Judicial Review,” Michigan Law Review 9 (19101911): 102; 283CrossRefGoogle Scholar, that Corwin first broaches the subject of Bonham's Case as the foundation of the American doctrine of judicial review. It is interesting to note that between Corwin's second and third articles there was published a book by one of his colleagues then at Princeton, Charles Howard Mcllwain. Mcllwain's important and influential book, The High Court of Parliament and Its Supremacy: An Historical Essay on the Boundaries Between Legislation and Adjudication in England (New Haven: Yale University Press, 1910)Google Scholar, discusses the significance of Coke and Bonham's Case at some length, pp. 286 ff. But, as the title indicates, he is not concerned with the influence of the case in America. It is clear, nonetheless that Corwin was one of those to whom Mcllwain felt “indebted for many valuable suggestions,” p. xviii. And indeed the first mention of Bonham's Case in Corwin's essay carries a citation to Mcllwain.

33. Harvard Law Review 42 (1928–1929): 149185; 365–409.CrossRefGoogle Scholar These articles have been reissued as a book, The ‘Higher Law’ Background of American Constitutional Law (Ithaca: Cornell University Press, 1955).Google Scholar All references are to this edition. All references to Corwin's writings other than The ‘Higher’ Law Background will be to Loss, Richard, ed., Corwin on the Constitution, 3 vols. (Ithaca: Cornell University Press, 19811988).Google Scholar

34. Thomas Grey has expressed the contemporary version of Edward Corwin's theory most clearly: “For the generation that framed the Constitution the concept of a ‘higher law,’ protecting ‘natural rights,’ and taking precedence over ordinary positive law as a matter of political obligation, was widely shared and deeply felt. An essential element of American constitutionalism was the reduction to written form—and hence to positive law—of some of the principles of natural rights. But at the same time, it was generally recognized that written constitutions could not completely codify the higher law. Thus in the framing of the original American constitutions it was widely accepted that there remained unwritten but still binding principles of higher law. The Ninth Amendment is the textual expression of this idea in the Federal Constitution. As it came to be accepted that the judiciary had the power to enforce the commands of the written Constitution when these conflicted with ordinary law, it was also widely assumed that judges should enforce as constitutional restraints the unwritten natural rights as well” (Grey, Thomas, “Do We Have an Unwritten Constitution?”, Stanford Law Review 27 [1975]: 703, 715–16)CrossRefGoogle Scholar.

35. Ibid., p. 714.

36. Corwin, , “Constitution v. Constitutional Theory,” 2: 191.Google Scholar This is in stark contrast to the Founders' view of the Constitution. By their reckoning, the document that emerged from the Philadelphia convention in September 1787 was indeed only a document. But at the moment of ratification that document, by the formal consent of the governed, was transformed into abinding fundamental law. As Madison so eloquently put it: “I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than fora faithful exercise of its powers. If the meaning of the text be sought in the changeable meaning of the words composing it, it is evident that the shape and attributes of the government must partake of the changes to which the words and phrases of all living languages are constantly subject. What a metamorphosis would be produced in a code of law if all its phraseology were to be taken in its modern sense!” (Madison, James to Lee, Henry, 25 06 1824, Letters and Other Writings of James Madison, 4 vols. [Philadelphia: Lippincott & Co., 1865], 3: 441).Google Scholar

37. Ibid.

38. Ibid., p. 192.

39. Corwin, , “Moratorium Over Minnesota,” 2:334Google Scholar. This is a view with which John Marshall and his generation would have disagreed completely. As he wrote in Marbury: “That the people have an original right to establish for their future government, such principles, as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent” (1 Cranch 137,176). Joseph Story's view was equally at odds with the sentiment of Corwin's assertion: “[T]he policy of one age may ill suit the wishes or policy of another. The Constitution is not to be subject to such fluctuations. It is to have a fixed, uniform, permanent construction: It should be… not dependent upon the passions and parties of particular times, but the same yesterday, today, and forever” (Story, Joseph, Commentaries on the Constitution of the United States, 3rd ed., 2 vols. [Boston: Little, Brown & Co., 1858], 1:302303).Google Scholar

40. Corwin, , “Standpoint in Constitutional Law,” 2:294.Google Scholar

41. Corwin, , “Judicial Review in Action,” 2: 203.Google Scholar

42. Corwin, , “Standpoint in Constitutional Law,” 2: 281.Google Scholar

43. Ibid., p. 282.

44. Higher Law Background pp. 5; 11. Corwin seemed always to absolve judges from any inherent complicity in the defects of the human condition; he excluded them from his concerns about the excesses of “human governors.” This view is, to say the least, naive. As Justice Benjamin Curtis put it in his dissent in Dred Scott v Sandfbrd: “When a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who, for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean.” As Corwin himself argued, with Dred Scott, “Due Process of law came… to mean the Court's idea of what was just” (Corwin, , “The Dissolving Structure of Our Constitutional Law,” in Presidential Power and the Constitution: Essays by Edward S. Corwin, ed. Loss, Richard [Ithaca: Cornell University Press, 1976], p. 154Google Scholar).

45. “Natural law is a ‘higher law' but not every higher law is natural” (Strauss, “On Natural Law,” p. 137).

46. Higher Law Background, p. 24.

47. Ibid.

48. Ibid., p. 26.

49. Ibid., p. 26.

50. Ibid.

51. Ibid.

52. Ibid., pp. 26–27.

53. Ibid., p. 37.

54. Ibid., p. 47. But this is to view the past through the present. “[T]o some extent at least, later doctrines of natural law have been reflected backward upon Coke's statement, giving it a content it did not in fact have” (Thome, , “Dr. Bonham's Case,” p. 545Google Scholar).

55. Higher Law Background, p. 46. It is this passage that Thorne uses as his example of the false view of contemporary scholarship that Coke thought himself engaged in divining new rules from natural law. Thorne, , “Dr. Bonham's Case,” pp. 548–49.Google Scholar

56. Ibid., p. 60.

57. Ibid., p. 63. In many ways, Corwin's logic parallels, and was no doubt influenced by the older view of Frederick Pollock. By Pollock's measure, the history of the law of nature from the Decretum of Gratian to the eighteenth century rationalists many have been “roundabout” but there was “no real break in it.” Not even by Hobbes's theory: “The practical contents of Hobbes's morality are… not very different from other people's; nor was his political system without forerunners” (Pollock, Frederick, “The History of the Law of Nature,” Columbia Law Review 1 [1905]: 11,32; 31.Google Scholar) Pollock's view of Hobbes is especially at odds with the evidence. Hobbes himself surely thought otherwise: “Natural philosophy is… but young; but civil philosophy yet much younger, as being no older… than my own book De Cive” (Hobbes, Thomas, De Corpore, in Molesworth, William, ed., The English Works of Thomas Hobbes, 11 vols. [London: John Bohn, 1839], 1: ixGoogle Scholar). It is also fair to say that generations—including Hobbes's own—would agree with him as against Pollock. See generally Holdsworth, History of English Law, 5: 480–85; 6:294–301.

58. Ibid., p. 16. For precisely how Locke differed from the tradition, see Strauss, Natural Right and History; Pangle, Spirit of Modern Republicanism; Grant, Locke's Liberalism; and the editors' introduction to Locke, John, Questions Concerning the Law of Nature, ed. Horwitz, R. et al. (Ithaca: Cornell University Press, 1990).Google Scholar The Godlessness of Locke's natural law was a profound movement away from all that had preceded him and Hobbes. For a sense of this see Locke's, “Second Reply to the Bishop of Worcester,” in Works of John Locke, 1:432575.Google Scholar

59. Corwin, “The Dissolving Structure of Our Constitutional Law,” in Loss, , Presidential Power and the Constitution: Essays by Edward S. Corwin, p. 154.Google Scholar

60. Corwin, , “The Debt of American Constitutional Law to Natural Law Concepts,” 1:195.Google Scholar

61. Ibid., p. 203.

62. Ibid.

63. As Siegel has pointed out: “Coke's deemphasis of right reason and equity as sources of English law is supported conceptually by his view that the common law is the wisdom of ages” (“The Aristotelian Basis of English Law,” p. 30).

64. “There are wide differences between the philosophy of law, as actually administered in any country, and the abstract doctrine, which may, in matters of government, constitute in many minds the law of philosophy” (Story, Joseph, Commentaries on Equity Jurisprudence, 12th ed., 2 vols. [Boston: Little, Brown & Co., 1877], 1: 25, n.1)Google Scholar. Coke's view of the law was in marked contrast to Hobbes's later view: “My designe is not to shew what is law here and there; but what is law” (Hobbes, Thomas, Leviathan [Oxford: Clarendon Press, 1909], p. 203).Google Scholar

65. “Coke did not maintain that natural law supplied judges with roving commissions. Coke's natural law was a rather tame creature, satisfied with the inalienable rights to indictment and jury trial. Coke's natural law dealt only with judicial proceedings, and it did not have much to say about them…. Coke's approach applied only to life, liberty, and property. Those words then described a small collection of rights. Life referred to capital punishment; liberty to freedom from physical custody; property to estates in fee and to a motley collection of additional interests (leases, estates) that made up the bulk of private wealth. These were largely the rights then thought to exist by virtue of natural law and not from the intervention of government” (Easterbrook, Frank H., “Substance and Due Process,” The Supreme Court Review: 1982 [Chicago: University of Chicago Press 1983], pp. 85–125,97–98).Google Scholar

66. Prohibitions del Roy (1607), 12 Co. Rep. 65.

67. Thomas Jefferson, long an admirer of Coke over Blackstone, captured the essence of Coke's view well: “The common law is a written law, the text of which is preserved from the beginning of the 13th century downwards, but what has preceded that is lost; its substance, however, has been retained in the memory of the people & committed to writing from time to time in the decisions of the judges and treatises of the jurists, insomuch that it is still considered as a lex scripta, the letter of which is sufficiently known to guide the decisions of the courts. In this department, the courts restrain themselves to the letter of the law” (Jefferson, to Mazzei, Philip, 11 1785, in The Writings of Thomas Jefferson, ed. Lipscomb, Andrew, 20 vols. [Washington, D.C.: Thomas Jefferson Memorial Foundation, 1905]).Google Scholar

68. Coke did not embrace “the theory that ‘an Act of Parliament' may be void from its first creation” because of a conflict between its provisions and fundamental, natural, or ‘higher’ law“ (Thome, , “Introduction,” p. 89).Google Scholar

69. See Vinogradoff, Paul, “Reason and Conscience in Sixteenth Century Jurisprudence,” Law Quarterly Review 24 (1908): 373.Google Scholar

70. Siegel, , “The Aristotelian Basis of English Law,” p. 30.Google Scholar

71. Pocock, J. G. A., The Ancient Constitution and the Feudal Law, rev.ed. (Cambridge: Cambridge University Press, 1987), p. 35.CrossRefGoogle Scholar As Pocock further explains: “Institutions which have survived… for a very long time must be presumed to have solved immeasurably more problems than the men of the present age can imagine, and experience indeed shows that the efforts of the living, even mustering their best wisdom for the purpose, to alter institutions in a way that seems best to their own intelligence, have usually done more harm than good. The wisdom which they embody has accumulated to such a degree that no reflecting individual can in his lifetime come to the end of it, no matter how he calls philosophy and theoretical reason to his aid” (Ibid., p. 36). See also Pocock, , The Machiavellian Moment (Princeton: Princeton University Press, 1975), pp. 330.Google Scholar

72. See, for example, Fuller's Case (1607), 12 Co. Rep. 41, and The Case of Proclamations (1611), 12 Co. Rep. 74. “Under the leadership of Coke, the common lawyers were seeking to test the legality of political action by the standards and procedural techniques of the medieval common law” (Dawson, John P., “Coke and Ellesmere Disinterred: The Attack on Chancery in 1616,” Illinois Law Review 35 [1941]: 127,130Google Scholar).

73. 4 Co. Rep. Pref. v, vi.

74. Locke, John, Two Treatises on Civil Government, 2nd. ed., ed. Laslett, Peter (Cambridge: Cambridge University Press, 1967), p. 376.Google Scholar

75. Higher Law Background, p. 72. To be fair, Corwin does go further and note that when it comes to Coke's version of the English constitution that Locke “also supplements it in important respects” (Ibid.). But in the end, they have more in common than not. See pp. 87–89.

76. Corwin, , “Constitution v. Constitutional Theory,” 2: 192.Google Scholar

77. Allowing courts to judge according to the principles of “natural law and justice,” noted Story, would be to establish “the most formidable instrument of arbitrary power that could well be devised.” And, he warned: “It would literally place the whole rights and property of the community under the arbitrary will of the judge… according to his own notions and conscience; but still acting with a despotic and sovereign authority” (Commentaries on Equity Jurisprudence, 1:15).

78. 1 Cranch 137, 178 (1803).

79. Jefferson to Wilson C. Nicholas, 7 September 1803, in Writings of Thomas Jefferson, 10: 419.

80. Wood, , Creation of the American Republic, p. 273.Google Scholar

81. Ibid., pp. 296–97.

82. Governor Henry Moore of New York, as quoted by Mark, Irving, Agrarian Conflicts in Colonial New York: 1771–1775 (New York: Friedman, 1940), p. 77.Google Scholar “Such expressions,” Wood has noted, “bred among the colonists a profound fear of judicial independence and discretion, reflected in their repeated resorts to written charters,” albeit not completely (Creation of the American Republic, pp. 298–99).

83. Colbourn, Trevor, ed., “Pennsylvania Farmer,” Pennsylvania Magazine of History and Biography 86 (1962): 450–51.Google Scholar

84. The Americans had begun to take their Blackstone seriously. As he had argued, “the liberty of considering all cases in an equitable light must not be indulged too far, lest thereby we destroy all law, and leave the decision of every question entirely in the breast of the judge” (Blackstone, , Commentaries on the Laws of England, 1:62).Google Scholar

85. Storing, , Compete Anti-Federalist, 2.9. 196; 2. 9. 189; 2. 9. 134–44.Google Scholar

86. Ibid., 2.9.144.

87. Ibid., 2. 8.185.

88. Ibid., 2. 8.195.

89. The Federalist, No. 81, p. 543.

90. Ibid., No. 80, p. 541.

91. Ibid., No. 78, pp. 522; 525. The judge's role was to keep the Constitution in the form in which it had issued from the people in their sovereign capacity: “Until the people have by some solemn and authoritative act annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge of their sentiments, can warrant their representatives in a departure from it, prior to such an act” (Ibid., pp. 527–28).

92. Ibid., p. 525.

93. Ibid., p. 529.

94. Ibid.

95. But as Hobbes had said: “Precedents prove only what was done, and not what was well done” (Hobbes, , A Dialogue Between a Philosopher and a Student of the Common Law of England, ed. Cropsey, Joseph [Chicago: University of Chicago Press, 1971], p. 129).Google Scholar

96. Ibid., p. 522.

97. Ibid., p. 523.

98. Mccloskey, Robert G., ed., The Works of James Wilson, 2 vols. (Cambridge, MA: Harvard University Press, 1967), 1: 356.Google Scholar

99. Ibid., 1:122; 120.

100. Horwitz, Morton, The Transformation of American Law, 1780–1830 (Cambridge, MA: Harvard University Press, 1977), p. 22.Google Scholar

101. Ibid., p. 2.

102. Farrand, Max, ed., The Records of the Federal Convention, 4 vols. (New Haven: Yale University Press, 1937), 2: 367.Google Scholar

103. Ibid., 2: 316; 312.

104. Ibid., 2:637.

105. Madison, to George Washington, 18 10 1787, in The Papers of James Madison, ed. Rutland, Robert A. et al. (Chicago: University of Chicago Press, 1962 —), 10:196.Google Scholar

106. Jefferson, to Edmund Randolph, in Writings of Thomas Jefferson, 10:125.Google Scholar

107. Ibid., pp. 126; 128–29.

108. Jefferson to Gideon Granger, 13 August 1800, Ibid., 10:168.

109. Meyers, Marvin, ed., The Mind of the Founder: Sources of the Political Thought of James Madison,(Indianapolis: Bobbs-Merrill, 1973), pp. 320; 324; 318; 325.Google Scholar

110. Madison to Peter DuPonceau, 14 August 1824, in the Madison Papers, Library of Congress. A fragment of this letter is reprinted in Farrand, Records of the Federal Convention, 4:85. Duponceau, Peter S., A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States (Philadelphia: Abraham Small, 1824).Google Scholar

111. Story, , Commentaries on the Constitution of the United States, 1: 322.Google Scholar Even when it came to the equity jurisdiction of the courts, there was not to be any undue liberality of construction. Said Story:“ [I] t would be a great mistake to suppose that equity, as administered in England or America embraced a jurisdiction so wide or extensive, as that which arises from the principles of natural justice.” Indeed, when it came to equitable interpretation, that meant nothing more mysterious than a judge looking “to the objects of the legislature” in order “to give such a construction to the words as will best further those objects.” In sum: “It is the duty of every court of justice, whether of law or of equity, to consult the intention of the legislature. And in the discharge of that duty, a court of equity is not invested with a larger or more liberal discretion than a court of law” (Story, Commentaries on Equity Jurisprudence, 1:5; 7; 12). Jean Louis DeLolme put it similarly: “Certainly the power of judges in equity cannot be to alter by their own private power the written law… and thus to control the legislature.” Further, DeLolme argued, “a judge of equity is subjected to certain positive rules besides those of Reason and Conscience only” (The Constitution of England [London: J. Cutrell, 1822], pp. 116; 130).Google Scholar

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