The American Judiciary | Page 5

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,