A Remote Antecedent of the Judicial Review: the Judicial Control of the Legislation of the American Colonies

Abstract

The first sketchs of the judicial review have to place in the colonial period. In this age, the Cokeʼs dictum in the Bonhamʼs case became the most important single source of the notion of judicial review. The introduction of the judicial review presupposed the idea of a fundamental law, that is, a superior law that the colonial laws had to respect. In the 18th century the colonists should find firm bases for his idea about the existence of a fundamental law in those impressive doctrinal constructions of the Enlightenment, the systematic treaties on natural and international law. The colonial Charters granted for the King were considered by courts binding for the legislatures and they were applied as a higher law. In the Giddings v. Brown case (1657), for the first time, the Cokeʼs dictum received practical application in the other side of the Atlantic. In the ruling of this case the Judge Symonds wrote «that where a law is repugnant to fundamental law, it is void».
Likewise, the Privy Council, in the practice of its appealʼs jurisdiction in relation to colonial courts, carried out a judicial review of the colonial legislation. Its judicial annulment of the statutes has been compared to the function of judicial review. In fact, in the Winthrop v. Lechmere case (1727), the Privy Council declared that an Act of Connecticut, the Act for the Settlement of Intestates Estates (1699) was null and void because it was «contrary to the laws of England, in regard it makes lands of inheritance distributables as personal estates, and it is not warranted by the Charter of that Colony». In short, the colonial epoch, even long before of James Otis and the Writs of Assistance Case, offers us some examples of the application of the judicial review of legislation doctrine and, above all, it reveals us that a such doctrine was very well known and acknowledged in considerable sectors of the legal colonial world.