Constitutional History & Commentary

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  1.  Iberian Constitutional History, 600-1492. May have inspired development of constitutional thought in England and other countries.
  2.  Brevissima Relacion, or Short Report on the Destruction of the Indies, Bartolomé de las Casas (1474-1566) — Spanish Dominican priest, early champion of the rights of indigenous peoples. One-sided but influential polemic that brought pressure to better treat Native Americans and recognize natual rights of people everywhere.
  3.  Adobe PDF A Short Treatise on Political Power, John Ponet (1556) — Argues political power is limited by natural law, and no ruler may exercise absolute power. (PDF is 10 MB.)
  4.  How Superior Powers Ought To Be Obeyed By Their Subjects: And Wherein They May Lawfully By God's Word Be Disobeyed And Resisted, Christopher Goodman (1558) — Swiss Calvinist theologian, Knox's co-pastor in Geneva, discusses conditions under which people have right to resist with force of arms.
  5.  De jure magistratuum (On the Rights of Magistrates), Theodore Beza (1574) — Swiss Calvinist theologian argues that lower level magistrates have duty to defend people from higher level magistrates.
  6.  De Jure Regni apud Scotos (The Powers of the Crown of Scotland), George Buchanan (1579) — Letter to James VI, to become James I of England, setting forth doctrine of limited monarchy.
  7. HTML Version or Menu Word Version Abolition of the Star Chamber (1641) — Precursor of Habeas Corpus Act, showing no official immunity for offenses to rights.
  8.  Treaty of Westphalia, 1648. Stabilized the law of nations for the treaty partners and most other European nations.
  9.  Selected Works of Marchamont Nedham (~1650) — English columnist comments on political issues of his era.
  10. W  Adobe PDF An account of Denmark, as it was in the year 1692, Robert Molesworth (1694) — Commentary on Denmark that is really a commentary on constitutional issues in England. (5th ed. 1745 also planned)
  11. Text Version or Menu PDF Version Complete Works, George Savile, first Marquess of Halifax (1633-1695) — Architech of the English Restoration.
  12. HTML Version or Menu PDF Version Martyrdom of King Charles I, W. Delavne (1703) — Sermon before House of Commons. Comments on some of the constitutional issues involved in the trial and execution of that monarch.
  13.  The Subject's Right of Petitioning, Anonymous. (1703) — Provides insight into the original meaning of the right to petition.
  14. W  Franco-Gallia, François Hotman (1574, tr. Robert Molesworth, 1705, pub. 1711) — An account of the ancient free state of France, and neighboring parts of Europe, before the loss of their liberties.
  15. Abridgment of the Project for Perpetual Peace, Abbé Charles de Saint-Pierre (1713) — Plan for peace in Europe.
  16.   The History of the Common Law of England, Matthew Hale (1713) — Important reference for the Founders.
  17.  Georgicum: or a supplement to the mirror of justices; being an account of some instances of the practice of former times, in order to the improvement of justice and safeguard of the constitution, Anonymous (1716) — Recounts how corrupt judges were held accountable.
  18. HTML Version or Menu PDF Version Appeal Brief in Matson v. Thomas, John Valentine (1720) — Oldest known legal brief in British North America, got precedent that British colonists in North America had inherited the rights of Englishmen, laying the foundation for the American War of Independence.
  19.  A General Charge to All Grand Juries, and Other Juries, James Astry. (1725) — Provides insight into the early role of juries.
  20.  The English Lawyer, showing the Nature and Forms of Original Writs, Processes, and Mandates, William Bohun. (1732) — Provides insight into the early practice of law.
  21.  The Present Practice of the Court of Common Pleas, Joseph Harrison. (1761) — Provides insight into the early practice of law.
  22.  An Analysis of the Laws of England, William Blackstone. (1762) — Commentary on early English law.
  23. W Selected Political Works of Joseph Priestley — Includes First Principles of Government (1768) and Present State of Liberty (1769).
  24.  The Dissertation of John Selden, Annexed to Fleta. (1771) — Commentary on early English law.
  25.  An Argument in Defence of the Exclusive Right Claimed by the Colonies to Tax Themselves, with a Review of the Laws of England, Relative to Representation and Taxation, to Which is Added, an Account of the Rise of the Colonies, and the Manner in which the rights of the subjects within the realm were communicated to those that went to America, with the exercise of those rights from their first settlement to the present time. (1774) — Arguments of English members of Parliament who agreed with the protests of the American colonists.
  26. I  Political Disquisitions, James Burgh (1775) — Constitutional thinking of an English Whig.
  27.  Address on Libels, Case of John Horne, John Horne Tooke. (1777) — Criticism of indictment by information, rather than by grand jury. May have contributed to requirement for grand juries in U.S. Bill of Rights.
  28.  The Attorney's Practice in the Court of Common Pleas, Robert Richardson. (1778) — Provides insight into the early practice of law.
  29. Civil Government, Josiah Tucker (1781) — Critique of English constitution and commentary on Locke.
  30.  A Dissertation on Manner of Acquiring Character & Privileges of Citizen of U.S., David Ramsay. (1789) — Provides one view of what constituted "natural born" citizenship.
  31.  Southest Ordinance, Act of Congress. (1790) — Counterpart of the Northwest Ordinance of 1787, but for territory south of the Ohio Rver.
    •  Acceptance of the cession by North Carolina of its western territory, Act of U.S. Congress. (1790) — This completed the cession.
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  33.  Considerations on the Respective Rights of Judge and Jury; Particularly upon Trials for Libel, John Bowles. (1791) — Leading exposition of the Mansfieldian movement to curtail the role of juries, which spread to the United States.
  34.  Observations on the Trial by Jury, Anonymous. (1803) — Advice to the Pennsylvania Legislature on the role of the jury.
  35.   History of the rise, progress, and termination of the American Revolution, Mercy Otis Warren. (1805) — History from one of the leading intellectual leaders of the American Revolution.
  36.  Constitution of the Holy Roman Empire, (962-1806) — A dominant European nation that was a confederation of states, headed by an elected monarch with limited power. It's "constitution" provided some ideas to the American Framers.
  37.  Report of the 1814 Hartford Convention — Amendments proposed by those opposed to War of 1812.
  38.  Observations on the Trial by Jury, Attributed to John Longley. (1815) — Commentary on the role of the jury in Britain, reflecting the gain of the Mansfieldian movement.
  39. W The Olive Branch: or, Faults on Both Sides, Federal and Democratic..., Matthew Carey (1816) — Treatise on the constitutional issues dividing the federalists and democrats.
  40.   A Dissertation on the Nature and Extent of the Jurisdiction of the Courts of the United States, Peter Stephen Du Ponceau (1824) — Discusses the various kinds of jurisdiction, in locum, in personam, and in subjectam materiam, and the limits of the jurisdictions of each kind of court.
  41.  Two Essays: On the Foundation of Civil Government, On the Constitution of the United States, Thomas Cooper (1826) — Commentary on constitutional theory.
  42.     The crisis: or, Essays on the usurpations of the federal government, Robert James Turnbull, Brutus (pseud.) (1827) — Discusses the misconstructions of the Constitution by the Supreme Court and Congress from a Jeffersonian standpoint, and develops the concept of state-level nullification.
  43. Elementary Catechism on the Constitution of the United States, Arthur J. Stansbury (1828) — Q&A for the teaching of students.
  44. W An Historical Essay on the Magna Charta, Richard Thomson (1829) — Definitive commentary on the fundamental documents, including the Magna Charta, the Charters of Liberties and Confirmations of Henry III and Edward I, and the Original Charter of the Forests, and their relation to the common law.
  45. W  Constitutional Law: Being a view of the practice and jurisdiction of the courts of the United States, and of constitutional points, Thomas Sergeant (1830) — Commentary on constitutional theory.
  46.   A Brief View of the Constitution of the United States, Peter Stephen Du Ponceau (1831) — Introduction to the Constitution for students and foreigners.
  47. W  Inquiry into the Moral and Religious Character of the American Government, H. W Warner (1838) — Commentary on the relation between government and religious practices.
  48. W HTML Version PDF text over image PDF text under image The American Manual, or, The Thinker, Joseph Bartlett Burleigh (1854) — Civics textbook focusing on U.S. Constitution.
  49.   Considerations on the Constitutionality of the President's Proclamations, John Henderson (1854) — Commentary on executive orders.
  50. W Commentaries on the Criminal Law, 6th Ed. Vol. 1, Joel P. Bishop (1865) — Discussion of the limits on the constitutional authority to impose criminal penalites in various jurisdictions.
  51. W Manual of the Constitution of the United States of America, T. Farrar (1867) — Provides a view of the state of constitutional interpretation as of that time.
  52. W The Constitution of the United States: Defined & Carefully Annotated, George W. Paschal (1868) — Interpretative citations for each clause and term in the Constitution.
  53. W  An Introduction to the Constitutional Law of the United States, John N. Pomeroy (1868) — Commentary on the state of constitutional jurisprudence during the Reconstruction Period, with guidance on interpretation of the Fourteenth Amendment.
  54.  Constitutional View of the Late War between the States, Alexander Stephens (1868) — Vice-President of the Confederacy explains why the war was fought.
  55.  PDF text under image The English Constitution, Walter Bagehot (1872) — Discussion of the English "constitution" as of that time.
  56. W  History of Trial by Jury, William Forsyth. (1875) — Tells story of how it evolved, as seen by a legal scholar who missed the point that juries were established because judges and prosecutors cannot be trusted.
  57.  A Summary of the Law of Contracts, C. C. Langdell. (1880) — Develops an interpretative approach to law based on private (contract) law, from the formalist standpoint.
  58. W History of the Formation of the Constitution of the United States of America, George Bancroft (1883) — Presents much background information on the people and events that shaped the Constitution.
  59.   A Plea for the Constitution of the United States: Wounded in the House of Its Guardians, George Bancroft (1884) — Argues against an 1884 Supreme Court decision making paper currency legal tender.
  60. HTML Version or Menu PDF text under image PDF text over image Is Codification of the Law Expedient?, by William B. Hornblower. Address delivered before the American Social Science Association (Department of Jurisprudence) at Saratoga, N.Y., September 6, 1888. — Discussion of debate over whether and how to adopt statutes that codify common-law judicial precedents.
  61.  Sources of the Constitution of the United States, C. Ellis Stevens (1894) — Traces each of the key provisions of the Constitution and Bill of Rights to their historical sources.
  62.   The Common Law, Oliver Wendell Holmes, Jr. — Discussion of some but not all of the elements of the Anglo-American common law.
  63. I  The History of English Law, Pollock and Maitland (1898) — Definitive study of the foundations of the Anglo-American legal system.
  64. W  The Constitution of the United States, John Randolph Tucker (1899) — Commentary by the grandson of the editor of Tucker's Blackstone.
  65.   A Treatise on American Citizenship, John S. Wise (1906) — Discussion of the history and principles of various kinds of citizenship.
  66. I  Select Essays in Anglo-American Legal History, Freund, Mikell, & Wigmore, ed. (1907) — Classic essays on legal foundations and theory.
  67.  A Brief Survey of Equity Jurisdiction (Selections), C. C. Langdell. (1908) — Exposition from formalist standpoint.
  68. W Black's Law Dictionary. 2nd Edition, 1910 — Standard reference for legal terminology.
  69.   The Constitution of the United States: Its History, Application, and Construction, Chapter 5: Legislative Powers, Chapter 25: Police Power, David K. Watson (1910) — Comparison of the powers of the national and state governments.
  70.  Notes on the Science of Government and the Relations of the States to the United States, Raleigh C. Minor (1913) — Discourse on federalism and the constitutional limits on federal power.
  71. W  Introduction to the Study of the Law of the Constitution, Albert Venn Dicey (8th Ed., 1914) — Comparative analysis of the constitutional orders of several nations, focusing on Britain.
  72. HTML Version The Leveller Movement, Theodore Calvin Pease (1916) — A study in the history and political theory of the English Great Civil War.
  73.   The Nature of the Judicial Process, Benjamin N. Cardozo (1921) — Discusses the debate between legal realists and constitutionalists.
  74.   Legal Research by the use of Corpus Juris Secundum, Donald J. Kiser (1924) — Guide for students of the law.
  75. MS Word Version, zipped The Mechanism of the Modern State, John A.R. Marriott (1927) — An analysis of the British system of government compared to other systems, especially those of ancient Athens, Switzerland, and the United States.
  76.   Losing Liberty Judicially, Thomas James Norton (1928) — Examines how courts have gone along with departures from original understanding.
  77. W   Citizenship, U.S. War Department Training Manual 2000-25 (1928) — Civics textbook for training Army troops.
  78.   A Constitutional History of the United States, Andrew McLaughlin (1936) — Perhaps the best single textbook on the subject, winner of the 1936 Pulitzer Prize.
  79.  A Treatise on the Conflict of Laws (Selections from), Joseph H. Beale (1935) — The topic is developed with a historical and theoretical perspective.
  80.  Conflict of Criminal Laws, Edward S. Stimson (1936) — Jurisdiction for a criminal offense is limited to the territory where the offender is when the offense is committed, not where the effects occur.
  81.  The Law of Treason in the United States, James Willard Hurst (1945, 1971) — The Constitution imposes strict limits on what can be punished and how it can be proven.
  82.  Politics and the English Language, George Orwell (1946) — Short essay on the political uses of English.
  83.   Constitutionalism: Ancient and Modern, Charles Howard McIlwain (1947) — Discourse on the origins and development of constitution theory.
  84.  The Origins of Modern Constitutionalism, Francis D. Wormuth (1949) — Historical analysis of the key constitutional concepts.
  85.   Undermining the Constitution, Thomas James Norton (1950) — Constitutional scholar examines departures from constitutional compliance arising from New Deal.
  86.  Three Human Rights in the Constitution of 1787, Zechariah Chafee, Jr. (1956) — Historical analysis of free debate, prohibition of bills of attainder, and freedom of movement.
  87.   Still the Law of the Land? — Essays on Changing Interpretations of the Constitution. Forward by Forrest McDonald. © 1987. Hillsdale College Press.
  88.  Selected Works, Harvey Wheeler (1990-) — Papers on Francis Bacon and constitutional history and law.
  89.  A living constitution or fundamental law?, Herman Belz (1998) — American constitutionalism in historical perspective.

See also
History & Economics Background
Constitutionalism
Liberty Library of Constitutional Classics.

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Original date: 2003/1/4 —