The American Judiciary | Page 8

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
in American politics, as the colonies passed into States; but aside from
the separation of the judicial department from the executive and
legislative it had little effect upon the courts until the opening of the
nineteenth century. Then the principles of the Roman law, particularly
as presented and illustrated by the French jurists, were seized upon by
Kent and Story, and served greatly to expand and enrich our
jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.]
The course of events which has been sketched left certain ideas in
regard to the position and powers of the judiciary with respect to the
other branches of the government firmly imbedded in the American
mind. These may be thus summarized:
Judges were to proceed according to established rules, so far as
established rules might exist.
They were to proceed in analogy to established rules as to points which
no established rule might cover.
They were to look to the common law and political institutions of
England to determine what rules were established, as to points not
covered by local usage or legislation.
Local usage or legislation might, within certain limits, depart from the

common law and even from the political institutions of England.
There were limits to such departure, and a colonial statute or judgment
which transgressed them could be annulled or set aside by a higher
authority.
This higher authority might be judicial or political, or one which shared
both judicial and political functions.
* * * * *

CHAPTER II
THE SEPARATION OF THE JUDICIAL POWER FROM THE
LEGISLATIVE AND EXECUTIVE IN AMERICAN
CONSTITUTIONS
From the colonial system of legislatures by which all the powers of
government were at times exercised to the modern American State,
with its professed division of them into three parts, and assignment of
each to a distinct department, was a long step.
So far as the United States were concerned, the weakness of the
government under the Articles of Confederation had been universally
acknowledged and was generally thought to come in part from
throwing whatever powers the States had granted, in a mass, into the
hands of the Continental Congress. Nevertheless, the Constitution of
the United States is not framed upon the principles of a strict tripartite
division. It places the executive power in the hands of the President, all
the legislative powers which were granted by it in Congress, and the
judicial power in certain courts; but it does not follow the earlier State
Constitutions in declaring that whatever was vested in either of these
three depositaries was and must always be different in kind from that
vested in any other of them.
On this point Virginia set the fashion, but the sonorous phrase of the

Massachusetts Constitution of 1780 is the most familiar, in its
declaration (Part the First, Art. XXX) that "in the government of this
commonwealth, the legislative department shall never exercise the
executive and judicial powers, or either of them; the executive shall
never exercise the legislative and judicial powers, or either of them; the
judicial shall never exercise the legislative and executive powers, or
either of them; to the end it may be a government of laws, and not of
men."[Footnote: The last declaration of purpose was taken from
Harrington's Oceana, in which it is said that while a monarchy is an
empire of men, "a commonwealth is an empire of laws and not of
men." Works, London ed., 35, 42, 224.]
It was from an unwillingness to commit themselves to such a principle
that the people of Connecticut and Rhode Island preferred for many
years to be governed in the old way by their legislatures, without a
written constitution. During this period, the General Assembly of
Connecticut repeatedly exercised the power of setting aside judgments
of courts, and its right to do so was sustained by the Supreme Court of
the United States.[Footnote: Calder v. Bull, 2 Root's Reports, 350; 3
Dallas' Reports, 386.]
The courts of the United States were called upon at an early day to
determine how far Congress could invest them with functions that were
not judicial or not to be