The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
This had been built into the foundations of American institutions
and kept firm in place, not only because the colonists were
habituated to it[Footnote: Fitch _v._ Brainerd, 2 Day's
(Conn.) Reports, 163, 189.] and themselves both English subjects
and the descendants of Englishmen of those days, but largely by
force of the British system of colonial government through the
Lords of Trade and Plantations. The ancient _aula regis_,
in which the king dispensed justice at first hand, had survived
in another form in the tribunal known as the King in Council.
This, so far as the colonies were concerned, was represented by a
standing committee of the Privy Council. It was substantially
the same thing as the Court of Star Chamber, but since 1640
without the extraordinary penal jurisdiction which gave that so
evil a reputation for Americans.[Footnote: Maitland, "Justice and
Police," 5.] This committee was after this restriction of its
powers known as the Lords of Trade and Plantations,[Footnote: It
was afterward and is now called the Judicial Committee of the
Privy Council.] and by its authority from the time when England
first had colonies of any commercial importance (and those in
America were the first) their statutes could be set aside and the
judgments of their courts, when of any considerable magnitude and
importance, reversed.[Footnote: See Paper on Appeals to the Lords
of Trade from Colonial Courts, by Harold D. Hazeltine, Report of
the American Historical Association for 1894, 299.] This
revisory jurisdiction, though questioned and occasionally evaded
or thwarted by the colonial governments, became solidly
established long before the Revolution.[Footnote: "Two Centuries'
Growth of American Law," 12, 18, 264.] In but one case did a
colonial court formally ignore a judgment of reversal. This was
in 1738, when the Superior Court of Judicature of Massachusetts,
at its sittings in York County, in what is now the State of
Maine, disobeyed an order of the King in Council made on appeal
from one of its judgments, and when it was repeated a year later,
adhered to its original position.[Footnote: Frost
_v._ Leighton, Publications of the Colonial Society of
Massachusetts, III, 246.] The amount involved was trifling, and
the Lords of Trade and Plantations made no further effort to
enforce their order.
The natural effect of this court of appeal at London was to keep
the public proceedings of the colonies in line with the common
law of England, so far as related to its fundamental principles.
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