The American Judiciary | Page 6

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.]
In those colonies which were provided by charter with a Court of
Assistants, this body soon came to act as a judicial court. This took
place in the colony of Massachusetts Bay as soon as the seat of the
company's government was transferred from England to America, and
took place as a matter of course. Divisional courts were frequently held

by part of the assistants, with original jurisdiction of minor causes, and
all sat semi-annually, or oftener, to try larger ones and hear
appeals.[Footnote: Noble, "Records of the Court of Assistants of
Massachusetts Bay," I, Preface; Publications of the Colonial Society of
Massachusetts, III, 317.]
In Connecticut, appellate jurisdiction was originally retained by the
General Assembly, but when the docket became too crowded, resort
was occasionally had to the appointment of a special and temporary
commission of appeals to clear it off. As early as 1719, one was
constituted for this purpose to hold office for two years.
No colony set up a permanent supreme court with full appellate
jurisdiction. None probably cared to do this, and none probably thought
that it could. The Lords of Trade and Plantations would have rightly
thought such a step hardly consistent with the maintenance of their
revisory and controlling powers. It would have been too costly to allow
two appeals; and for them to reverse a judgment of a colonial supreme
court would have been more distasteful to Americans than the exercise
of a similar power as to a court professedly of superior, not supreme,
jurisdiction.
New York had a court named Supreme, but its business was largely the
trial of original causes, and the Governor and Council claimed the right
of reviewing its judgments. The judges in 1765 denied the existence of
such a right, but the King in Council decided against them.[Footnote:
Hunt, "Life of Edward Livingston," 26.]
As soon as regular judges, not members of other departments of the
government, were appointed for the highest court, they were generally
required to perform circuit duty in the various counties during part of
each year.[Footnote: See "Am. Hist. Review," III, 44.] This was a
leading feature of the judicial establishment set up in 1686 under Sir
Edmund Andros for the "Dominion of New England."[Footnote: Col.
Rec. of Conn., III, 402, 411.]
South Carolina, for a hundred years, centered all her judicial business at
Charleston. No courts sat anywhere else and all the lawyers in the State

resided in the city. In the latter part of the eighteenth century she
followed the other colonies in establishing a circuit system and county
courts.[Footnote: Morse, "American Universal Geography," ed. 1796,
690; Osgood, "The American Colonies in the Seventeenth Century," II,
279, 300.]
There was occasionally some little approach to English form when the
colonial judges went on the circuit. In Massachusetts the sheriff or his
deputy was accustomed to come out from the court town to meet the
judges as they approached it, to open a term of court.[Footnote: "Life
and Works of John Adams," II, 280. See Chap. XIII.]
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