The American Judiciary by Simeon E. Baldwin, LLD

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THE
AMERICAN JUDICIARY

BY

SIMEON E. BALDWIN, LL.D.

CONTENTS

PART

CASES CITED.

I. THE NATURE AND SCOPE OF THE JUDICIAL POWER IN THE UNITED
STATES.

II. THE ORGANIZATION AND PRACTICAL WORKING OF AMERICAN COURTS.

_PART I_

CHAPTER

I. ENGLISH ORIGIN AND EARLY DEVELOPMENT OF THE AMERICAN
JUDICIARY.

II. THE SEPARATION OF THE JUDICIAL POWER FROM THE LEGISLATIVE
AND EXECUTIVE IN AMERICAN CONSTITUTIONS.

III. THE RELATIONS OF THE JUDICIARY TO THE POLITICAL
DEPARTMENTS OF GOVERNMENT.

IV. THE FORCE OF JUDICIAL PRECEDENTS.

V. THE JUDICIAL POWER OF DEVELOPING UNWRITTEN LAW.

VI. THE JUDICIAL POWER OF INTERPRETING AND DEVELOPING WRITTEN
LAW.

VII. THE JUDICIAL POWER OF DECLARING WHAT HAS THE FORM OF LAW
NOT TO BE LAW.

_PART II_

VIII. THE ORGANIZATION OF THE COURTS OF THE STATES.

IX. THE ORGANIZATION OF THE COURTS OF THE UNITED STATES.

X. RELATIONS OF THE STATE JUDICIARY TO THE UNITED STATES,
AND OF THE UNITED STATES JUDICIARY TO THE STATES.

XI. RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES.

XII. TRIAL BY JURY.

XIII. FORMALITIES IN JUDICIAL PROCEDURE.

XIV. TRIAL COURTS FOR CIVIL CAUSES.

XV. PROBATE COURTS.

XVI. BANKRUPTCY AND INSOLVENCY COURTS.

XVII. CRIMINAL PROCEDURE.

XVIII. THE EXERCISE OF JUDICIAL FUNCTIONS OUT OF COURT.

XIX. APPELLATE COURTS.

XX. THE ENFORCEMENT OF JUDGMENTS AND PUNISHMENT OF CONTEMPTS
OF COURT.

XXI. JUDICIAL PROCEEDINGS IN TERRITORIES SUBJECT TO MARTIAL
LAW.

XXII. APPOINTMENT, TENURE OF OFFICE AND COMPENSATION OF JUDGES.

XXIII. THE CHARACTER OF THE BAR AND ITS RELATIONS TO THE BENCH.

XXIV. THE LAW'S DELAYS.

XXV. THE ATTITUDE OF THE PEOPLE TOWARDS THE JUDICIARY.

INDEX.

* * * * *

TABLE OF CASES

Ableman _v._ Booth
Allinson, Hale _v._
American Insurance Co. _v._ Canter
Ames _v._ Kansas
Ames, Smyth _v._
Andrews, _Ex parte_
Anthes, Commonwealth _v._

Bachert _v._ Lehigh Coal and Navigation Co.
Baldwin, Robertson _v._
Bank, Bardes _v._
Bank of Kentucky, Briscoe _v._
Bank of Mississippi _v._ Duncan
Bank of the U. S., Osborn _v._
Bardes _v._ Bank
Barrows _v._ Bell
Batchelder _v._ Moore
Baxter _v._ Brooks
Baxter, State _v._
Bean _v._ Beckwith
Bean, Beckwith _v._
Beckham, Taylor _v._
Beckwith _v._ Bean
Beckwith, Bean _v._
Bell, Barrows _v._
Bell's Gap R. R. Co., McCloskey _v._
Bernard, Coggs _v._
Biddle, Green _v._
Bidwell, Downes _v._
Bissell _v._ Dickerson
Blacker, Board of Supervisors _v._
Blair _v._ Williams
Blake _v._ McClung
Board of Supervisors _v._ Blacker
Bodley _v._ Gaither
Boffman, Hickman _v._
Bonham's case
Booth _v._ Clark
Booth, Ableman _v._
Borden, Luther _v._
Bowman _v._ Middleton
Boyd _v._ Thayer
Boyd _v._ U. S.
Bradburn, Mincey _v._
Bradley _v._ Fisher
Bradley _v._ New Haven
Bradley, _Ex parte_
Brainerd, Fitch _v._
Branch, _In re_
Brashears, Lapsley _v._
Briggs _v._ Garrett
Brine _v._ Insurance Co.
Briscoe _v._ Bank of Kentucky
Brooks _v._ State
Brooks, Baxter _v._
Brown, Kellogg _v._
Brown, Parkersburg _v._
Bulkley, State _v._
Bull, Calder _v._
Burgess _v._ Seligman
Burr's Trial
Burrows, Nudd _v._
Bush, Perry _v._
Bushnell, _Ex parte_

Calder _v._ Bull
California, Hurtado _v._
Call Publishing Co., Western Union Telegraph Co. _v._
Calvin _v._ Huntley
Canfield _v._ Mitchell
Canter, American Insurance Co. _v._
Carriere, Tua _v._
Cherokee Nation _v._ Georgia,
Chisholm _v._ Georgia
Christmas _v._ Russell
Church _v._ Pearne
City of South Bend _v._ Turner
Claflin _v._ Houseman
Clark, Booth _v._
Clarke's Appeal
Cleveland, Painesville and Eastern R. R. Co., _v._
Pritschau
Clymer, Norris _v._
Cochran, Gernon _v._
Coffin _v._ United States
Coggs _v._ Bernard
Cohens _v._ Virginia
Coleman _v._ Tennessee
Coler _v._ Tacoma Railway and Power Co.
Colt, Stanley _v._
Commonwealth _v._ Anthes
Conn. Pipe Mfg. Co., Ward _v._
Consul of Spain _v._ Consul of Great Britain
Cooper, Application of
Cooper, _In re_
Cooper, In the matter of
Copass, Hall-Moody Institute _v._
Croswell, People _v._
Cunningham, State _v._

Danbury, Hoyt _v._
Dartmouth College _v._ Woodward
Debs, U. S. _v._
Debs, _In re_
Delaware, Lackawanna and Western R. R. Co., Forepaugh _v._
Demorest, Hutkoff, _v._
Dennison, Kentucky _v._
Deposit Bank _v._ Frankfort
Dickerson, Bissell _v._
Diggs _v._ Wolcott
Donoghue, Hanley _v._
Dorr _v._ United States
Dorrance, Vanhorne's Lessee, _v._
Dougherty, Lanark _v._
Dow _v._ Johnson
Downes _v._ Bidwell
Dred Scott _v._ Sandford
Drehman _v._ Stifle
Duncan, Bank of Mississippi _v._
Duncan, Johnson _v._
Dyson _v._ Rhode Island Co.

Eakin _v._ Raub
Eckrich _v._ St. Louis Transit Co.
Ellington, Miel _v._
Erdman _v._ Mitchell
Exchange Bank _v._ Rice

Farmers' Loan and Trust Co., Pollock _v._
Faulkner _v._ Hart
Finney _v._ Guy
Fish _v._ Smith
Fisher, Bradley _v._
Fitch _v._ Brainerd
Fletcher _v._ Peck
Flynn _v._ Morgan
Forepaugh _v._ Delaware, Lackawanna and Western R. R. Co.
Frankfort, Deposit Bank _v._
French _v._ Waterbury
Frost _v._ Leighton

Gaither, Bodley _v._
Garland, _Ex parte_
Garrett, Briggs _v._
Genesee Chief, The
Georgia _v._ Stanton
Georgia, Cherokee Nation _v._
Georgia, Chisholm _v._
Georgia, Worcester _v._
Gernon _v._ Cochran
Gibbons _v._ Ogden
Goshen _v._ Stonington
Gould _v._ Hudson River R. R. Co.
Grady's case
Grapeshot, The
Gray, James _v._
Green _v._ Biddle
Griffin _v._ Wilcox
Griswold, Hepburn _v._
Griswold, United States _v._
Grover & Baker Sewing Machine Co. _v._ Radcliffe
Groves _v._ Slaughter
Guy, Finney _v._

Hale _v._ Allinson
Hall-Moody Institute _v._ Co-pass
Ham _v._ McClaws
Hanley _v._ Donoghue
Hanover National Bank _v._ Moyses
Hans _v._ Louisiana
Harris, Norris _v._
Hart, Faulkner _v._
Hawes _v._ Oakland
Hayburn's Case
Hepburn _v._ Griswold
Heywood, Wilcox _v._
Hickman _v._ Boffman
Hildreth's Heirs _v._ McIntire's Devisee
Hill _v._ Smith
Hill, Koehler _v._
Hoffman, People _v._
Holmes _v._ Walton
Houseman, Claflin _v._
Houser, State _v._
Howle, Metropolitan Life Insurance Co. _v._
Hoyt _v._ Danbury
Hudson River R. R. Co., Gould _v._
Huntley, Calvin _v._
Hurtado, _v._ California
Hutkoff _v._ Demorest

Insurance Co., Brine _v._
International Distillery, Pearson _v._
Irvine _v._ Stone

James _v._ Gray
Jecker _v._ Montgomery
Johnson _v._ Duncan
Johnson _v._ People
Johnson, Dow _v._
Johnson, Mississippi _v._
Johnson, State _v._
Joint Traffic Association, United States _v._
Judges, State _v._

Kansas, Ames _v._
Katz _v._ Walkinshaw
Kellogg _v._ Brown
Kellogg _v._ Warmoth
Kentucky _v._ Dennison
Kentucky, Louisville Ferry Co. _v._
Kepner _v._ U. S.
Ketcham _v._ McNamara
Kilbourn _v._ Thompson
Klein, U. S. _v._
Kneedler _v._ Lane
Koehler _v._ Hill

Lachenmeyer, Pepin _v._
Lanark _v._ Dougherty
La Ninfa, The
Lane, Kneedler _v._
Lapsley _v._ Brashears
Lee, State _v._
Legal Tender Cases, The
Lehigh Coal and Navigation Co., Bachert _v._
Leighton, Frost _v._,
Lennon _v._ Rawitzer,
Letson, Louisville, Cincinnati and Charleston R. R. Co. _v._,
Little Charles, The schooner, U. S. _v._,
Loan Association _v._ Topeka,
Loomis _v._ Newhali,
Lottawanna, The,
Louisiana, Hans, _v._,
Louisville, Cincinnati and Charleston R. R. Co. _v._ Letson,
Louisville Ferry Co. _v._ Kentucky,
Luke _v._ Lyde,
Luther _v._ Borden,
Lyde, Luke _v._

McCardle, _Ex parte_,
McClaws, Ham _v._,
McCloskey _v._ Bell's Gap R. R. Co.,
McClung, Blake _v._,
McConnaughy, Pennoyer _v._,
McCulloch _v._ Maryland,
McDaniel, Terry _v._,
McDowell _v._ Oyer,
McFarland _v._ People,
Mclntire's Devisee, Hildreth's Heirs _v._,
M'Kim _v._ Voorhies,
McLeod's Case,
McNamara, Ketcham _v._,
McVeigh _v._ Ripley

Madison, Marbury _v._,
Main, State _v._,
Marbury _v._ Madison,
Maryland, McCulloch _v._,
Mather, Rand _v._,
Merriman _v._ Social Mfg. Co.,
Merryman, _Ex parte_,
Metropolitan Life Insurance Co. _v._ Howle,
Mial _v._ Ellington,
Middleton, Bowman _v._,
Milligan, _Ex parte_,
Miln, New York _v._,
Mincey _v._ Bradburn,
Mississippi _v._ Johnson,
Mitchell, Canfield _v._,
Mitchell, Erdman _v._,
Montgomery, Jecker _v._,
Moore, _Ex parte_,
Moore, Batchelder _v._,
Morgan, Flynn _v._,
Mormon Church _v._ United States,
Morrill, State _v._,
Moses Taylor, The,
Moyses, Hanover National Bank _v._,
Mutual Reserve Fund Life Association, Vincent _v._,
Myers _v._ South Bethlehem

Nash, United States _v._,
Neagle, _In re_,
Neff, Pennoyer _v._,
Newhall, Loomis _v._,
New Haven, Bradley _v._,
New Jersey _v._ New York,
Newman, _Ex parte_,
New York _v._ Miln,
New York, New Jersey _v._,
New York and New England R. R. Co., Rumsey _v._,
New York, New Haven and Hartford R. R. Co., Stack _v._,
Noble _v._ Union River Logging Co.,
Norris _v._ Clymer,
Norris _v._ Harris,
Northern Securities Co. _v._ United States,
Norwalk Street Railway Co.'s Appeal
Nudd _v._ Burrows

Oakland, Hawes _v._
Ogden _v._ Saunders
Ogden, Gibbons _v._
Ohio and Mississippi R. R. Co. _v._ Wheeler
Olcott, People _v._
Osborn _v._ Bank of the U. 8.
Oyer, McDowell _v._

Parkersburg _v._ Brown
Patterson, William
Paul _v._ Virginia
Pearne, Church _v._
Pearson _v._ International Distillery
Pease, Starr _v._
Peck, Fletcher _v._
Pennoyer _v._ McConnaughy
Pennoyer _v._ Neff
Pennsylvania, Prigg _v._
Pennsylvania Coal Co., Sanderson _v._
People _v._ Croswell
People _v._ Hoffman
People _v._ Olcott
People _v._ Webb
People, Johnson _v._
People, McFarland _v._
Pepin _v._ Lachenmeyer
Perkins, United States _v._
Perry _v._ Bush,
Peters, Wheaton _v._
Pollock _v._ Farmers' Loan and Trust Co.
Prigg _v._ Pennsylvania
Pritschau, Cleveland, Painesville and Eastern R. R. Co. _v._

Radcliffe, Grover & Baker Sewing Machine Co. _v._
Rand _v._ Mather
Raub, Eakin _v._
Rawitzer, Lennon _v._
Reese, United States _v._
Regents _v._ Williams
Rhode Island Co., Dyson _v._
Rice, Exchange Bank _v._
Rich, Upshur County _v._
Ripley, McVeigh _v._
Robbins' Case
Robertson _v._ Baldwin
Robinson, _Ex parte_
Royall, _Ex parte_
Rumsey _v._ New York and New England R. R. Co.
Russell, Christmas _v._
Rutgers _v._ Waddington

Sanderson _v._ Penn. Coal Co.
Sandford, Dred Scott _v._
Saunders, Ogden _v._
Scott _v._ Sandford
Seligman, Burgess _v._
Shepherd, State _v._
Sheve, U. S. _v._
Siebold, _Ex parte_
Sims' Case
Slaughter, Groves _v._
Smith, Fish _v._
Smith, Hill _v._
Smith, U. S. _v._
Smyth _v._ Ames
Social Mfg. Co., Merriman _v._
South Bethlehem, Myers _v._
Sparf _v._ U. S.
St. Louis Transit Co., Eckrich _v._
Stack _v._ New York, New Haven and Hartford R. R. Co.
Stanley _v._ Colt
Stanley, U. S. _v._
Stanton, Georgia _v._
Starr _v._ Pease
State _v._ Baxter
State _v._ Bulkley
State _v._ Cunningham
State _v._ Houser
State _v._ Johnson
State _v._ Judges
State _v._ Lee
State _v._ Main
State _v._ Morrill
State _v._ Shepherd
State _v._ Travelers' Insurance Co.
State _v._ Ward
State _v._ Worden
State, Brooks _v._
Stephens, petitioner
Stifle, Drehman _v._
Stone, Irvine _v._
Stonington, Goshen _v._
Swift _v._ Tyson

Tacoma Railway and Power Co., Coler _v._
Tassel's Case
Taylor _v._ Beckham
Tennessee, Coleman _v._
Terry _v._ McDaniel
Thayer, Boyd _v._
The Genesee Chief
The Grapeshot
The La Ninfa
The Lottawanna
The Moses Taylor
The Schooner Little Charles, U. S. _v._
The Thomas Jefferson
Thomas Jefferson, The
Thompson, Kilbourn _v._
Topeka, Loan Association _v._
Trademark Cases
Travelers' Insurance Co., State _v._
Trevett _v._ Weeden
Tua _v._ Carriere
Turner, City of South Bend _v._
Tyson, Swift _v._

Union River Logging Co., Noble, _v._
United States _v._ Debs
United States _v._ Griswold
United States _v._ Joint Traffic Association
United States _v._ Klein
United States _v._ Nash
United States _v._ Perkins
United States _v._ The Schooner Little Charles
United States _v._ Reese
United States _v._ Robbins
United States _v._ Sheve
United States _v._ Smith
United States _v._ Sparf
United States _v._ Stanley
United States _v._ Wilson
United States _v._ Worrall
United States, Boyd _v._
United States, Coffin _v._
United States, Dorr _v._
United States, Kepner _v._
United States, Mormon Church _v._
United States, Northern Securities Co. _v._
Upshur County _v._ Rich

Vanhorne's lessee _v._ Dorrance
Vincent _v._ Mutual Reserve Fund Life Association
Virginia, Cohens _v._
Virginia, Paul _v._
Voorhies, M'Kim _v._

Waddington, Rutgers _v._
Walkinshaw, Katz _v._
Walton, Holmes _v._
Ward _v._ Conn. Pipe Mfg. Co.,
Ward, State _v._,
Warmoth, Kellogg _v._,
Waterbury, French _v._,
Webb, People _v._,
Weeden, Trevett _v._,
Western Union Telegraph Co. v. Call Publishing Co.,
Wheaton v. Peters,
Wheeler, Ohio and Mississippi R. R. Co., _v._,
Wheeler's Appeal,
Wilcox v. Heywood,
Wilcox, Griffin _v._,
Williams, Blair _v._,
Williams, Regents _v._,
Wilson, U. S. _v._,
Woleott, Diggs _v._,
Woodward, Dartmouth College, _v._,
Worcester v. Georgia,
Worden, State _v._,
Worrall, U. S. _v._

Additional cases cited in Second edition.

Janvrin v. Revere Water Co.,
Revere Water Co., Janvrin, _v._,
O'Brien's Petition,
Seery v. Waterbury,
Waterbury, Seery _v._

* * * * *

PART I

THE NATURE AND SCOPE OF THE
JUDICIAL POWER IN THE
UNITED STATES

* * * * *

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.

Winthrop, writing in 1639, describes it with his usual clearness
and discrimination thus:

"The people had long desired a body of laws, and thought their
condition very unsafe while so much power rested in the
discretion of magistrates.... Two great reasons there were,
which caused most of the magistrates and some of the elders not
to be very forward in this matter. One was want of sufficient
experience of the nature and disposition of the people,
considered with the condition of the country and other
circumstances, which made them conceive that such laws would be
fittest for us which should arise _pro re nata_ upon
occasions, etc., and so the laws of England and other states
grew, and therefore the fundamental laws of England are called
customs, consuetudines. 2. For that it would professedly
transgress the limits of our charter, which provide we shall
make no laws repugnant to the laws of England, and that we were
assured we must do. But to raise up laws by practice and
custom had been no transgression."[Footnote: Winthrop, "History
of New England," I, 322.]

The tendency toward partial codification proved too strong to be
resisted, and all the colonies soon had a substantial body of
written law published in official form.

The exercise of judicial power by colonial legislatures was
steadily contracting throughout the century preceding the
Revolution. Where there were Governors appointed by the crown,
they discouraged it. The courts were correspondingly
strengthened. Law became better understood and more wisely
applied. A large body of local statute law had grown up by 1750,
much of it already venerable by antiquity, and intimately
interwoven with the life of the people. Its form and color
differed in different colonies. Religious views and preferences
had had a large effect in shaping it. So had influences
proceeding from the civil war, the Commonwealth, and the
Restoration. Yet at bottom there was the same substructure in
Virginia as in Massachusetts, in Pennsylvania as in New York. It
was the common law of England as it existed in the days of the
last of the Tudor and first of the Stuart reigns.

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.

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.]

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