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The Origins Of Modern Constitutionalism|
Double Majesty and Judicial Review
by Wormuth, Francis D.
|As we have seen, the doctrine of double majesty
entered English law as early as the thirteenth century in Bracton's
formulation, "The king should be under no man, but under God and the law, for
the law makes him king." Bracton, like Glanvill before him, identified English
law with custom. In the fifteenth century it became usual to speak of English
law as bearing some relation to the law of nature and reason, a
characterization borrowed from Roman law. By such means common law was given an
objective validity, so that it was able to stand its ground as a rival and
limit to the power of the king. Sir Edward Coke in the early seventeenth
century boldly declared the independence of the common law in his famous
opinions in the Case of Prohibitions1 and that of
In an age when government was very largely identified with the person of
the king, it was easy to translate this opposition into one between all
governmental power on the one hand and common law on the other. Coke made this
extension in the much discussed dictum in Bonham's Case that "when an act of
Parliament is against common right and reason, or repugnant, or impossible to
be performed, the common law will control it, and adjudge such act to be
void."3 He cited four precedents, of which Professor Plucknett has
found one to be valid.4
This idea of the superiority of common law found frequent expression in
the next hundred and fifty years. Chief Justice Hobart approved Coke's dictum
in Day v. Savadge5 in 1614, as did Chief Justice Holt in City of
London v. Wood in 1701.6 A few Civil War pamphleteers denied the
omnipotence of sovereign power.7 John Fortescue-Aland published an
edition of his distinguished ancestor's Absolute and Limited Monarchy in 1714.
In the preface he felt obliged to warn, "where my Lord Coke says that an act of
Parliament made against Magna Carta is void, he is not to be understood of
every part of it, but it is meant only of the moral part of it, which is as
immutable as Nature itself; for no act of Parliament can alter the nature of
things, and make virtue vice, or vice virtue." William Rawlin, the
Attorney-General of Barbados, in 1715 delivered an opinion on an act passed by
the local legislature; citing Coke, he declared that the act was "contrary to
common right and reason," and therefore void.8 It is worth noting,
however, that Sir Edward Northey, Attorney-General of Great Britain, had "no
objection, in point of law, against the said additional act."9
Occasional pamphlets and speeches through the eighteenth century approved the
principle of Coke's dictum.10 Viner's Abridgment, the first
edition of which appeared 1742-1753, quoted Bonham's Case,11 and it
was from this source that James Otis derived his famous argument against the
writs of assistance.
But the only serious attempt by an English author to apply the doctrine
to a concrete case appears to be Granville Sharp's Address to the People of
England, a very curious pamphlet of 76 pages published in 1778 against the
proposal to suspend the writ of habeas corpus. "Such a suspension, I say, of
common justice and common right is so fundamentally subversive of the British
constitution of state, that no authority of parliament can make it legal;
because it is high treason against the king and people!" The bill violates the
law of God, nature, and reason, and English law as well. The judges are bound
by their oaths; "they must not obey even an act of parliament which sets aside
this matter of 'common right,' I mean the common right of personal liberty to
all ranks of men that are innocent for crimes and free from debt." The pamphlet
concludes with an argument that the impressing of seamen is likewise unlawful,
as contrary to "the laws of British freemen" and Magna Carta; even an act of
Parliament cannot validate the practice.
Unlike other arguments for the superiority of common law, this is not a
casual dictum but a plea to the judges to supervise Parliament in a concrete
case. Blackstone had already rejected this proposal as not feasible.
Lastly, acts of parliament that are impossible to be performed are of no
validity: and if there arise out of them collaterally any absurd consequences,
manifestly contradictory to common reason, they are, with regard to those
collateral consequences, void. I lay down the rule with these restrictions;
though I know it is generally laid down more largely, that acts of parliament
contrary to reason are void. But if the parliament will positively enact a
thing to be done which is unreasonable, I know of no power in the ordinary
forms of the constitution that is vested with authority to control it: and the
examples usually alleged in support of this sense of the rule do none of them
prove, that, where the main object of a statute is unreasonable, the judges are
at liberty to reject it; for that were to set the judicial power above that of
the legislature, which would be subversive of all government.12
In his Address, as on many other occasions, Granville Sharp was arguing
for an unpopular cause. It would be tedious and unnecessary to offer quotations
to show that Englishmen in the eighteenth century trusted to the admirable
device of the Gothic constitution to protect their liberties, without a thought
for judicial review. But what Sharp demanded has occurred in the United States,
where the courts have repeatedly invalidated statutes which altered the rules
of common law. For the most part this has been done through the due process
clauses of national or state constitutions. So it has been held that the
legislature cannot alter the common law rule of liability of employers for
injuries suffered by employees,13 or abolish the common law defense
of insanity,14 or dispense with the need of an overt act to
constitute a crime.15 The very strong bias of common law judges for
rules of common law is evident in a thousand cases. The common law has set a
boundary to political power. In 1815 Justice Story, in annulling an act of the
Virginia legislature for the reason, substantially, that it departed from the
common law, said: "The state itself succeeded only to the rights of the crown;
and, we may add, with many a flower of prerogative struck from its
hands."16 Here is the medieval doctrine of double majesty.
The courts have not confined themselves to the protection of formal
rules of common law. In the late nineteenth and early twentieth centuries,
institutions which had grown up in the shelter of the common law acquired the
same sanctity. The courts stubbornly insisted upon the nineteenth century
practices of the market and on certain kinds of freedom of contract. This was a
sort of modern extension of double majesty. Since 1937, however, the opposition
of the courts to social legislation and to control of economic activities by
the state seems to have ended. With it the controversy over judicial review has
probably also come to an end.
(1) 12 Coke's Reports 64 (1607).
(2) 12 Coke's Reports 74 (1610).
(3) 8 Coke's Reports 107, 118 (1610).
(4) "Bonham's Case and Judicial Review," Harvard Law
Review, xl, 30.
(5) Hobart, 85, 87. Bonham's Case was cited with
approval in the House of Commons in the same year. Commons Journal, i,
(6) 12 Modern Reports 668, 687.
(7) See for example, David Jenkins' Lex Terrae
(1647), in Somers Tracts (London, 1811), v, 98, and in Judge Jenkins
(ed. W. H. Terry, 1929), p. 66; the same author's Discourse Touching the
Inconveniencies of a Long Continued Parliament, in Somers Tracts, v,
124; and [William Ball,] The Power of Kings, in Judge Jenkins, p.
(8) Chalmers, Opinions on English Jurisprudence
(1814), ii, 27.
(9) Ibid., p. 39.
(10) A Letter to a Friend in Suffolk, Occasioned by a
Report of Repealing the Triennial Act (London, 1716), p. 7; Ministerial
Usurpation Displayed, and the Prerogative of the Crown, with the Rights of
Parliament and of the Privy Council, Considered (London, 1760), p. 45;
"Gray's Parliamentary Notebook" for March 3, 1766, Historical Manuscripts
Commission, Fourteenth Report, Appendix IX (1895), p. 315.
(11) (2d ed.: London, 1793), xix, 513.
(12) Commentaries, i, 91.
(13) Ives v. South Buffalo Ry. Co., 201 N. Y. 276
(1911), overruled by New York Central Ry. Co. v. White, 243 U. S. 188
(14) State v. Strasburg, 60 Wash. 106, 110 P.
1020, 32 L. R. A. (N.S.) 1216, Ann. Cas. 1912B, 917 (1910); Sinclair v.
State, 161 Miss. 142, 132 S. 581, 74 A. L. R. 241 (1931).
(15) Ex parte Smith, 135 Mo. 223, 36 S. W. 628, 33 L. R.
A. 606, 58 A. S. R. 576 (1896); Proctor v. State, 15 Okl. Cr. 338, 176
P. 771 (1918); and see Lanzetta v. New Jersey, 306 U. S. 451
(16) Terrett v. Taylor, 9 Cranch 43, 50