Constitutionalism, Theory, Practice, Pre-Revolutionary, Massachusetts Bay
The subject of constitutionalism is of considerable topical importance in Canada today, and it is hoped that this essay in historical jurisprudence will be of value to Canadian scholars attempting to discover a usable past in the eighteenth century constitution of Empire. To plunge twentieth century scholars into the eighteenth century legal world, however, may have a tortious quality to it. Recently, an American scholar commented rather grimly that much modern scholarship on the subject shares "a sense of the strangeness of the eighteenthcentury world, its pervasive differentness from the legal world we know and have internalized. We cannot," he concluded, "with any expectation of success pretend to be a judge in a court in provincial America.... I We can, perhaps, pretend to be a student or practitioner in provincial America, for the texts from which provincial American lawyers learned the law are well known and accessible, and their minutes of cases are often also available. The published Diary and Autobiography of John Adams reveals his own attempts to master the subject in the following recitation of sources:
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David Thomas Konig, “The Theory and Practice of Constitutionalism in Pre-Revolutionary Massachusetts Bay: James Otis on the Writs of Assistance, 1761” (1984) 8:3 DLJ 25.