The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
Acts of Parliament directly affecting procedure in American
courts, and unifying its methods in some particulars, were
occasionally passed during the colonial era. Such was the Act of
1732 (V, Geo. II, Chap. VII), making affidavits taken in England
admissible in any suit in an American colony to which an
Englishman might be a party, and providing that all American real
estate (including negro slaves employed upon it) should be
subject to be levied on for any debts of the owner, although real
estate in England could only be taken for debts of a particular
kind.[Footnote: Connecticut promptly passed a statute extending
the new remedy thus given, so as to authorize the sale of land
belonging to the estate of a deceased person, to pay his debts,
if he did not leave sufficient personal estate for that purpose.
Col. Rec. of Conn., VII, 444.] Other English statutes, passed
after the settlement of the colonies, and not in terms applying
to them, were often adopted here, either by the enactment of
colonial statutes to the same effect or by incorporation into our
common law by tacit consent, as interpreted by the
courts.[Footnote: State _v._ Ward, 43 Connecticut Reports,
489, 494.]
The benefit of the writ of _habeas corpus_, which, though
issuable at common law, really first took its present shape in
1679, by the Act of 31 Charles II, Chap. II, was thought in this
country, though not by the Lords of Trade and Plantations, to be
a privilege of Americans, as British subjects. In some colonies
this statute was re-enacted, or, as in Virginia, rights under it
conceded under the royal prerogative. In others, as in Maryland,
it was treated as being, by tacit adoption, the birthright of the
inhabitants. In the "Declaration and Resolves" of the first
Continental Congress, they assert "that the respective colonies
are entitled to the Common Law of England," and in the address to
the people of Great Britain they complain that the English
settlers in Canada "are now the subjects of an arbitrary
Government, deprived of Trial by Jury, and when imprisoned cannot
claim the Benefit of the _Habeas Corpus_ Act, that great
Bulwark and Palladium of English Liberty."[Footnote: Journals of
Congress, I, 29, 44. A. H. Carpenter, "Habeas Corpus in the
Colonies," American Historical Review, VIII, 18.]
The same sentiments dictated the terms of the Ordinance of 1787,
under which our first Territories were to be organized. One of
its leading provisions was this:
ART. 2. The inhabitants of the said territory shall always be
entitled to the benefits of the writ of _habeas corpus_,
and of the trial by jury; of a proportionate representation of
the people in the legislature, and of judicial proceedings
according to the course of the common law.
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