The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
A certain uniformity of result was thus secured. American law,
in its substantial framework, was not allowed to vary from
English law in any case where agreement was reasonably
practicable. There was a central power at London ever ready to
enforce the charter rule. The colonial courts, if their
judgments were to stand, must proceed in conformity to the
British constitution. Justice must be administered by due course
of law, and to find out what that due course was the judges were
forced to study the English law-books. When Blackstone's
Commentaries were first published, more copies were sold in
America than in England.[Footnote: "Two Centuries' Growth of
American Law," 20.]
The colonial bench was weaker than the colonial bar. Judicial
station was at first always, and later often, a mere incident of
political office. When judges were appointed whose functions
were wholly judicial, their selection was largely dictated by
political considerations or executive favor. Few of them were
really learned in the law. Of the bar many were. That of
Massachusetts did not conceal its disapprobation when
Lieutenant-Governor Hutchinson, although he had never been a
member of it, was appointed Chief Justice in 1760. None of the
judges of the first Superior Court in that colony were
lawyers.[Footnote: Winsor, "Narrative and Critical History of
America," V, 166.] In some of the others the Governor was the
Chancellor, and in Maryland he was at one time the Chief Justice
also.[Footnote: Steiner, "Maryland's First Courts," Reports of
American Historical Association for 1901, 211; Osgood, "The
American Colonies in the Seventeenth Century," I, Chap. II; II,
Chap. XII.] In several the judges were appointed during the
king's pleasure, and the Governor removed them at his discretion,
without any notice or hearing.[Footnote: Bancroft, "History of
the United States," II, 279. A notable instance of a removal in
consequence in part, at least, of a decision as to the royal
prerogative, not relished by the Governor, was the case of Chief
Justice Lewis Morris of New York, in 1733. Documents relating to
the Colonial History of New York, V, 948; VI, 4, 8, 951.]
In those colonies which were provided by charter with a Court of
Assistants, this body soon came to act as a judicial court. This
took place in the colony of Massachusetts Bay as soon as the seat
of the company's government was transferred from England to
America, and took place as a matter of course. Divisional courts
were frequently held by part of the assistants, with original
jurisdiction of minor causes, and all sat semi-annually, or
oftener, to try larger ones and hear appeals.[Footnote: Noble,
"Records of the Court of Assistants of Massachusetts Bay," I,
Preface; Publications of the Colonial Society of Massachusetts,
III, 317.]
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