The American Judiciary | Page 7

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.
A recognized system of jurisprudence had, under the circumstances and from the causes which had been stated, begun to grow up before the Revolution. It might fairly be called American, but it was thoroughly English by heredity, and had been shaped by a long succession of English influences, and steadied by the firm hand of English power.
The Revolutionary War made everything connected with the law of England distasteful to the people at large. The lawyers knew its value: the community did not. Public sentiment favored an American law for America. It was quickened by the unfriendly feeling toward the mother country which became pronounced toward the close of the eighteenth century and culminated in the War of 1812. Several of the States, New Jersey leading off, passed statutes forbidding the citation, in the argument of causes, of any decisions of the English courts made since the Declaration of Independence. Under one of these Henry Clay, in 1808, was stopped by the Supreme Court of Kentucky when reading in argument from an opinion of Lord Ellenborough;[Footnote: Hickman v. Boffman, Hardin's Rep., 348, 364.] but after a few years, legislation of this kind, while it might remain formally unrepealed, was treated as obsolete both by court and bar.[Footnote: Statutes of New Jersey, ed. of 1800, p. 436 (1799); Morehead and Brown, "Digest of the Statutes of Kentucky," I, 613 (1807).]
In courts held by unlearned judges, also, English law-books were lightly considered. One of this kind was Chief Justice Livermore, of New Hampshire. Shortly after the close of the Revolution, while presiding on the bench, he stopped a lawyer who was reading from one with the inquiry whether he thought that the members of the court did not "understand the principles of justice as well as the old wigged lawyers of the dark ages did."[Footnote: "Memoir of Jeremiah Mason Mason," 29.]
But whether cited or not from their original sources, the settled doctrines of English law were sure in the end to permeate both bar and bench in every State.
The Roman law and the law of nations were studied in preparation for admission to the American bar more generally and more thoroughly in the years immediately preceding and following the Revolutionary era than they have been since.[Footnote: See Chap. XXIII.] The law student was also set then to reading more books on English law than he is now.[Footnote: See Report of the American Bar Association for 1903, p. 675.] He learned his profession by the eye and not by the ear. His only lectures were the occasional arguments on a demurrer or writ of error which he might hear in the court room, and these were a reiteration of rules laid down in English law-books.
The reason why he read more of Roman law than is now required in legal education was mainly that there was more time for it, since of English law reports there were then few, and of American none.
When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.]
The influence of French ideas was strong in shaping constructive work