The American Judiciary

by Simeon E. Baldwin

CHAPTER I

ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN JUDICIARY

No government can live and flourish without having as part of its system of administration of civil affairs some permanent human force, invested with acknowledged and supreme authority, and always in a position to exercise it promptly and efficiently, in case of need, on any proper call. It must be permanent in its character. Only what is permanent will have the confidence of the people. It must always be ready to act on the instant. The unexpected is continually happening, and it is emergencies that put governments to the test.

The judiciary holds this position in the United States. The institutions which underlie and characterize it, both of the United States and of each of the States, considered by itself,[Footnote: I do not except Louisiana, for trial by jury and other institutions derived from the common law have profoundly affected her whole judicial system.] are the outgrowth of those of the thirteen English colonies on the Atlantic coast, which declared their independence in 1776.

The colonial charters, whether of the proprietary, provincial or republican type, were all equally charters for Englishmen, based on the common law of the English people. So far as they granted legislative power, it was generally declared that it should be exercised in conformity, so far as might be practicable, with the laws of England. The proviso to this effect in the roving patent given by Queen Elizabeth to Sir Walter Raleigh may be taken as a type: "so always as the said statutes, lawes, and ordinances may be, as neere as conveniently may be, agreeable to the forme of the lawes, statutes, government, or pollicie of England."[Footnote: Poore, "Charters and Constitutions," II, 1381.]

In the Southern New England colonies, when first settled, the common law of England was disowned. They made the little law which they needed for themselves, and as cases which this might not provide for arose, they were to be decided by such rules as the magistrates might think right and warranted by the precepts found in the Bible. Connecticut continued to insist on this view, with general consistency, until the days of the Stamp Act, when it became the interest of her people to claim the benefit of the principles of the English constitution and of the common law, on which it was built up.[Footnote: Colonial Records of Conn., 1689-1706, 261; Conn. Stat., ed. of 1769, 1. Cf. citations by D. Davenport, arguendo, in Flynn v. Morgan, 55 Connecticut Reports, 132-134, from MSS. in the State archives.]

In early Massachusetts the written pleadings often referred to the Bible, quoting a text from it as an authority, just as citations now might be made in a lawyer's brief from a legal treatise or reported case.[Footnote: Publications of the Colonial Society of Mass., III, 324.]

As was anticipated in the Raleigh patent, it was found from the first and everywhere that if the common law was to be applied to the rough conditions of colonial life some modifications were necessary. These the colonists were, in the main, left free to make at their pleasure. Much of this work came to be done by their legislative assemblies; more by their courts. The assemblies sat but for a few days in the year: the courts were always open to suitors, and sessions of the inferior ones were frequent.

The assemblies, however, were themselves courts. At first they kept in their own hands a large share of judicial power. They acted as the early parliaments of England had acted, both as a legislature and a judicial tribunal. In several colonies they long kept to themselves the right of deciding private controversies on equitable principles. They sat as a court of review, to grant new trials or review judgments. They passed acts of attainder. They settled insolvent estates.[Footnote: Wheeler's Appeal, 45 Connecticut Reports, 306, 314.]

This mingling of judicial with legislative functions is a thing to be tolerated only while the foundations of a government are being laid. As the Roman plebeian, in the days before the Twelve Tables, clamored for a known and certain law, so the common people of the early colonies insisted that from a similar want they held their rights too much at the will of their rulers. In the colony of New Haven a code was early framed; but there they built on a written law—the Bible.[Footnote: New Haven Colony Records, I, 12, 115, 116; II, 569, 570.] In Massachusetts, where they were more anxious to avoid conflict with the common law, the problem was a serious one.