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Judgement, Force, and Will - James Wilson & Alexander Hamilton on Judical Review and Judical Supremacy
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be constrained from exercising such a prerogative. In elucidating Blackstone’s view, Wilson
cites Sir Robert Chambers:
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. . . [a] judge seems in some measure unguarded in asserting from the bench, that an act of parliament made against natural equity, is void in itself. The principle is infallibly true; the application of it, and the conclusion, dangerous. What is the danger? That if the acts of legislators are to be decided upon by [judges], government and subordination cease.
31
Important in Chambers’ analysis is his recognition that an unreasonable statute is, from the
viewpoint of reason, inherently void. One can garner from Chambers’ argument that if such
recognition were made by the legislature, then government and subordination would not cease.
For not only would the legislature not be subordinated, they would be in the perfect position to
repeal the manifestly unjust law. For Chambers, as with Blackstone, danger looms only when
such an assertion is made from the bench by judges. It is this that necessarily entails the
subordinating of the legislature to the judiciary.
Surely, both Blackstone and Chambers would prefer such unjust laws were never enacted
by the legislature. Blackstone states, “. . . on the two foundations of the law of nature, and the
law of revelation, all human laws depend; that is to say, no human laws should be suffered to
contradict these."
32
Upon this, Wilson wholeheartedly agrees. Wilson’s disagreement with
Blackstone is over the proper response to the occurrence of unjust legislation inevitably to result
from the fallibility and ambition of human legislators. While forbidding the judiciary to
intervene, Blackstone instead suggests,
To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae
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to abstain from its perpetration. Nay, if any human law should
allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.
34
30
Sir Robert Chambers (1737-1803) was a jurist and William Blackstone’s successor to the prestigious
Vinerian Professorship of Common Law at Oxford University.
31
Chambers quoted in Wilson, Lectures on Law.
32
Ibid., Blackstone, Commentaries, bk. 1, part 1, sec. 2.
33
Before the tribunal of conscience.
34
Ibid.
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be constrained from exercising such a prerogative. In elucidating Blackstone’s view, Wilson
cites Sir Robert Chambers:
. . . [a] judge seems in some measure unguarded in asserting from the bench, that an act of
parliament made against natural equity, is void in itself. The principle is infallibly true; the
application of it, and the conclusion, dangerous. What is the danger? That if the acts of legislators
are to be decided upon by [judges], government and subordination cease.
Important in Chambers’ analysis is his recognition that an unreasonable statute is, from the
viewpoint of reason, inherently void. One can garner from Chambers’ argument that if such
recognition were made by the legislature, then government and subordination would not cease.
For not only would the legislature not be subordinated, they would be in the perfect position to
repeal the manifestly unjust law. For Chambers, as with Blackstone, danger looms only when
such an assertion is made from the bench by judges. It is this that necessarily entails the
subordinating of the legislature to the judiciary.
Surely, both Blackstone and Chambers would prefer such unjust laws were never enacted
by the legislature. Blackstone states, “. . . on the two foundations of the law of nature, and the
law of revelation, all human laws depend; that is to say, no human laws should be suffered to
Upon this, Wilson wholeheartedly agrees. Wilson’s disagreement with
Blackstone is over the proper response to the occurrence of unjust legislation inevitably to result
from the fallibility and ambition of human legislators. While forbidding the judiciary to
intervene, Blackstone instead suggests,
To instance in the case of murder; this is expressly forbidden by the divine, and demonstrably by the
natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human
laws that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh
obligation in foro conscientiae
to abstain from its perpetration. Nay, if any human law should
allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend
both the natural and the divine.
30
Sir Robert Chambers (1737-1803) was a jurist and William Blackstone’s successor to the prestigious
Vinerian Professorship of Common Law at Oxford University.
31
Chambers quoted in Wilson, Lectures on Law.
32
Ibid., Blackstone, Commentaries, bk. 1, part 1, sec. 2.
33
Before the tribunal of conscience.
34
Ibid.
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