Evolution, Law and Order

WILLIAM F. SWINDLER


As the royal courts in the American colonies closed, at various dates between 1774 and 1776, most civil and criminal actions were left without a trial forum. Minor, local judicial business in some cases could be handled by local officials or agencies serving partly as administrative bodies, but their jurisdiction and authority was severely limited. The early state constitutions in due time established a general system of courts for each state. But it would be fifteen years, after a new Constitution had been approved and a new national
government launched, before something like the former royal courts would reappear.

There was a fundamental difference between the higher judiciary in the British colonies and the Federal judiciary which came into being with the congressional enactment of September 24, 1789. The royal judges, and the Privy Council in England to which appeals were taken, dealt with each American colony separately.  The Federal court system was set up from the beginning to deal with the states and the national government
as a whole. This was the lesson learned by the Americans in the years between 1774 and 1789--that some independent agency was required to deal with the steadily growing number of disputes between states, or between citizens of different states.

The Continental Congress recognized the need for some sort of national or interstate judicial process early in the Revolution. George Washington, in fact, urged creation of such a court in November 1775, nearly eight months before the formal Declaration of Independence. Congress conceded in principle that the laws of capture and prize demanded some agency to arbitrate "the disposal of such vessels and cargoes belonging to the enemy, as shall fall into the hands of, or be taken by, the inhabitants of the United Colonies." A month later, a special committee to which the matter had been referred reported back to the delegates in Congress, recommending that each of the states establish a prize court and that appeals from judgments of these courts be reviewed by Congress.

Hindsight was to show that such a system was to work badly if at all. In the first place, each state created a court whose jurisdiction and powers were defined by that state; thus, there would be no uniformity of procedure, jurisdiction or rules of decision, except as the state laws followed the examples of the former British vice-admiralty courts. In the second place, each state reserved the right to determine the circumstances under which it would permit an appeal to Congress. By the end of the Confederation period, the refusal of states to abide by decisions of the special courts of appeal which had been established under the Articles of Confederation had become so notorious that it made one of the strongest possible arguments in favor of a separate, independent system of national courts.

But, as John Adams phrased it, the new nation had to be driven into a disciplined union by failure and harsh experience. When the Revolution began, the resentment at royal justice in general, and the vice-admiralty courts in particular, was too virulent to permit any suggestion of a system of superior courts that would limit the absolute sovereignty which each state asserted for itself. One of the charges against George III, leveled in the Declaration of Independence, was that "He has made the judges subservient to his will alone." This could be read differently on different sides of the Atlantic; to the Tory leaders in England, it was a complaint that the royal judges were too independent of colonial whim, that what the Americans really wanted were courts subservient to them rather than to the Crown.

Royal courts, it was said in England, were unpopular in America because they enforced unpopular laws. The vice-admiralty courts, established by English authority to deal promptly and locally with smuggling and other illicit maritime activities, were the most unpopular of all. Colonial critics of these courts conveniently overlooked the fact that admiralty courts existed in England as well, preferring to insinuate that they represented an alien, tyrannical judicial process which jeopardized the Englishman's birthright of common
law trial and protection. More pragmatically, the vice-admiralty courts were resented because they threatened the widespread colonial practice of evading royal customs requirements by many ingenious devices. Ships and cargoes captured by royal revenue patrols were subject to condemnation and forfeiture when their owners or masters were brought before the admiralty courts.  

Twelve of the new states eventually responded to the recommendation of the Continental Congress committee, creating prize courts or conferring admiralty jurisdiction on the trial courts established by their new constitutions. (New York, whose only port was occupied by British troops throughout most of the
Revolution, had no occasion to enact any admiralty legislation.) The cases which could be appealed to Congress were widely varied. New Hampshire, for example, limited such appeals to captures made by armed vessels outfitted at the expense of the United Colonies. For most of the war, the Philadelphia admiralty court denied any right of review in any prize case, but Maryland on the other hand appeared to allow appeal to Congress in all instances.

The review process in Congress was slow to become standardized. The first appeals, between September 1776 and the end of January 1777, were heard by ad hoc committees appointed for that purpose. Then a standing committee was created, which regularly heard cases from the states until it was replaced in May1780 with a special Court of Appeals in Cases of Capture. In these various forms, the first national court of
the United States was established. For its specialized purpose, and for the limited period in which it functioned, its achievements were significant. The men who were assigned to discharge its functions were experienced colonial lawyers who had handled admiralty cases before the former royal courts, and the precedents established by this first American tribunal were recognized and incorporated into the law of the Federal courts under the new Constitution in 1795 (Penhallow v. Doane).

The first "federal" judges in the American judicial system may thus be identified as the appointees to the Court of Appeals. The Continental Congress "resolve" provided for a three-judge bench and its first nominees were George Wythe of Virginia, William Paca of Maryland and Titus Hosmer of Connecticut However, Wythe declined the appointment and Hosmer died that August. Paca was then joined by Cyrus
Griffin of Virginia, but the third position remained unfilled for two years. In 1782 Paca resigned to become governor of Maryland, and Congress finally brought the court to full strength by adding George Read of Delaware and John Lowell of Massachusetts.

Of one hundred and eighteen cases to come before the prize review committees and the Court of Appeals (including eight reported in Alexander Dallas' first volume of Supreme Court Reports), forty-five reversed the judgments of the state courts, thirty-nine affirmed. The rest of them were compromised, or the records lost so that the outcome is unknown. Specialists in admiralty law have concluded that the large numbers of reversals were due to a misunderstanding of the relevant evidence on the part of the juries at the trial level.
This in itself was an ironic turn of events; the colonists had condemned the vice-admiralty courts because they had no juries, and accordingly the state courts created for prize cases uniformly provided for jury trials--to their own undoing in more than half of the appeals.

The prize cases continued to be litigated--in common with most of the major litigation bred by the Revolution--long after the end of the struggle for independence. The final appeals of this period were settled in the Supreme Court some years after the Confederation Era, one of the tangible elements of continuity from the first years of independence to the government under the Constitution.

Until the system of national government created by the Articles of Confederation deteriorated to a stage where, as Edmund Randolph said, it "cried aloud for its own reform," there was general assumption that a national judiciary would be needed only for occasional interstate or international issues. The analogous royal courts had been courts within, not between, colonies, and as these colonies now converted themselves into
states they set up their own judicial systems within their borders. At the same time, each state was setting about answering, in its own way, three fundamental questions of the law by which it would now be governed.  First was the question of the surviving force of the existing statutes in the erstwhile colony; second, the question of the common law as it had been applied therein; finally, the question of the specific legal character of the new, written constitutions which appeared in eleven of the states. (Connecticut and Rhode Island, until
well into the next century, continued to be governed by their colonial charters.)

Part of the colonial grievances against England had developed from the insistence of Parliament, after the French and Indian War, on the right to determine legislative power as it affected colonies. Parliament itself, with increasing frequency, enacted imperial legislation extending to all British possessions, or to some of them as it saw fit. Colonial assemblies, on the other hand, enacted local laws subject to often-protracted review, and frequent disallowance, by the Crown in London. This also was listed in the objections set out in
the Declaration of Independence: "He has refused his assent to laws the most wholesome and necessary for the public good," said the colonists of George III, and added that the King had further "forbidden his governors to pass laws of immediate and pressing importance, unless suspended in their operation until his assent should be obtained; and when so suspended, he has utterly neglected to attend to them."

The newly constituted state legislatures, therefore, took it upon themselves to reverse the roles of the colonial period. They undertook to examine the existing laws and to decide which should be declared continuing in force, which should be amended or modified, and which should be terminated. In Virginia a famous committee of "revisors" consisting of Edmund Pendleton, George Wythe and Thomas Jefferson addressed itself to a massive body of English jurisprudence, both statutory and common law, to divide specific subjects into these three classes. Although the committee's recommendations were never fully
implemented, the state assembly did pass two laws, still in force, continuing the effect of certain acts of Parliament and providing for the "reception" of the common law.

It was this insistence on the supremacy of legislative power in the states which accounted for the fatal weakness of the Continental Congress. During the war years its own legislative power was virtually nonexistent, and under the Articles of Confederation severely circumscribed; indeed, the provision that nine states were required to ratify congressional enactments brought the complaints of the Declaration against the King to full circle. As the experience under the Confederation demonstrated, the Continental Congress was never much more than an inter-parliamentary union which had little legislative authority, an improvised machinery for adjudicating or arbitrating disputes, and no executive.

Yet a national process was needed to deal with territorial disputes between the states, which steadily increased after the Revolution. The Continental Congress itself was the battleground for the primary struggle over the "western lands" claimed by some of the erstwhile colonies and demanded by the "landless" states as part of the national domain. Until the cession of these lands was agreed upon, ratification of the Articles of Confederation hung fire and a frame of government for the new nation was impossible to
establish. While twelve of the states ultimately acceded to the draft of the Articles, despite Virginia's refusal to give up its own enormous holdings, Maryland held out stubbornly for more than four years, until Virginia at last capitulated. It was a major concession--the Virginia claims extended from the Ohio River to the eastern part of present-day Minnesota.

Georgia presented another land problem. It did not finally complete its cession to the United States until 1802, insisting upon a reimbursement of more than $2,000,000 for the settlements it had previously (and fraudulently) developed in the far western part of its territory, near the junction of the Mississippi and Yazoo rivers, and the loss of expected revenues from development of the remainder of what later became the states of Alabama and Mississippi. (Contract claims growing out of the Yazoo frauds would later be the basis for a famous Supreme Court case--Fletcher v. Peck--in 1810.)

The Articles did provide for a select committee of the Continental Congress to hear and determine "disputes and differences" between two or more states in boundary and territorial matters. Half a dozen such disputes, and proposals for adjudication or arbitration, were noted in the Journals of the Congress, but of these only one was pursued to final judgment, one was never formally submitted to Continental jurisdiction and the
remaining four were settled out of "court" or simply dropped.

The long dispute over the "Hampshire grants," which eventually produced the state of Vermont, was the first of the attempts at interstate adjudication, precipitated in January 1777 when the settlers in the area declared themselves an independent state. The dispute, involving Massachusetts, New Hampshire and New York, had its origins in the confused geographic references in the early colonial charters and the overlapping claims of English and Dutch proprietors. In 1750 New York, on the strength of the earlier Dutch claims,
extended its jurisdiction eastward to the Connecticut River, and the New Hampshire governor retaliated by making a series of land grants under his colony's seal to tracts between the river and Lake Champlain.  Following the French and Indian War, in 1764, an order of the King in Council assigned the area to New York, with a retroactive effect which cast in doubt the titles to a number of the Hampshire grants on which New
England men had settled.

New York made sporadic efforts to assert its jurisdiction (and collect taxes) in the area, but these were forcibly resisted. When the Vermont separatist movement reached its climax in 1777, therefore, New York appealed to Congress for settlement of the issue, and sought to join Massachusetts and New Hampshire in the action. The impotence of the Continental Congress--particularly evident in this period when not even the colorable authority of the Articles of Confederation had been established--made the quasi-litigation an exercise in futility. In September of that year Congress asked the states involved to enact legislation submitting the issue of Continental jurisdiction. New York complied rather quickly, New Hampshire less promptly, while Massachusetts, which had only minimal interest in the matter, failed to take any action. In 1780 the first two states laid their claims before Congress, each asserting jurisdiction but agreeing that in any event Vermont inhabitants could not separate themselves from the existing state or states. No
determination of these questions was ever made, partly because Congress itself was divided and more practically because Vermonters were prepared to defend themselves against any outsiders. The following year Massachusetts formally recognized Vermont's independence; New Hampshire followed suit within a few months, but New York clung to its claims until 1790. When, in that year, it abandoned the struggle, the way was cleared for Vermont's admission to the Federal Union, which came in 1791.

If the struggle over the Hampshire grants demonstrated the ineffectiveness of interstate arbitration prior to the Constitution, the Wyoming Valley dispute showed the other side of the coin. The area involved lay along the northern border of Pennsylvania, which that state claimed under the 1681 grant to William Penn.  Connecticut, which had settled the valley, insisted that the Penn grant was subject to its own 1662 charter, with its vague claims to territory "westward to the south seas." Connecticut, like many other enterprising colonies, had organized a development agency, the Susquehanna Company, which had established a number of small settlements in the Wyoming region. To further enforce its territorial claims, Connecticut had even organized the region into a county which was represented in its legislative assembly.

In the summer and fall of 1778 a series of Tory and Indian massacres in the Wyoming Valley had decimated the population, and three years later, seeking to forestall survivors' attempts to resettle and thus re-establish Connecticut claims, Pennsylvania petitioned Congress to adjudicate the matter. The following year in Trenton a five-man tribunal was sworn in by Justice Isaac Smith of the New Jersey Supreme Court; this ad hoc body consisted of Welcome Arnold of Rhode Island, David Brearly and William C. Houston of New Jersey, William Whipple of New Hampshire and Cyrus Griffin of Virginia, already serving as a member of the Court of Appeals in Cases of Capture. After forty-two days of elaborate testimony, the court returned a unanimous verdict in favor of Pennsylvania. An effort to convene a new court in 1784, to hear claims of individual tenants, was dismissed, the Continental jurisdiction over individual claimants being in doubt. In
1799 Pennsylvania passed legislation to compensate holders of provable titles from the original settlement, and the matter was finally closed.

The prolonged decline of the national government under the Articles, after the compelling necessities of war had passed, aggravated the steadily increasing number of cases in which interstate disputes demanded--but did not find--effective judicial remedies. In 1787, the year of the Constitutional Convention, the states of South Carolina and Georgia, tiring of Congress' inability to provide such remedies, settled a territorial dispute between themselves in a "treaty" which was held valid nearly ninety years later in a Supreme Court
decision of 1876 (South Carolina v. Georgia).

With the waning effectiveness of the Continental Congress, the judicial functions of the Court of Appeals and the committees on interstate disputes also went into decline. The need for national judicial machinery, on the other hand, steadily became more manifest. State-imposed duties on "foreign" goods coming from other states were threatening to balkanize the "perpetual union." On the Chesapeake, Virginia and Maryland were
chronically on the verge of hostilities over fishing and navigation rights. Claims of citizens of one state could only be litigated in another state under the greatest handicaps. With the future of the nation so hardly and recently won in the Revolution now in serious question, Washington invited Virginia and Maryland representatives to Mount Vernon in March 1785 to seek an amicable settlement of their Potomac River disputes. When, somewhat to everyone's surprise, an agreement actually was reached, the way was open to attempt a broader solution of all the problems threatening the union.

Although the Annapolis Convention the next year was disappointing--only five states were actually represented at the time--those aware of the desperate need for concerted action issued another call for a meeting of all the states. On May 25, 1787, the Philadelphia Convention assembled. Some ten days later the delegates unanimously approved a resolution "that a national judiciary be established."

Like most of the other details of the Constitutional Convention, the judicial article was to require hard work and extended debate before it reached a final form. The threshold question was whether the new Federal court system should be merely a strengthened version of the Continental judicial process--all issues being brought to trial in state courts, with the Federal court being simply an appellate court. Future Chief Justice John Rutledge of South Carolina, indeed, strenuously opposed authorization of any trial courts within the
Federal system. Roger Sherman of Connecticut supported Rutledge on the ground that a complete system of national courts parallel to the state court systems would be too expensive.

James Madison of Virginia and the future Associate Justice James Wilson of Pennsylvania opposed the Rutledge-Sherman position. The experience under the Confederation, Madison pointed out, at best was a disposition of cases on a state-by-state basis: each appeal either overturned or sustained a judgment growing out of the law of the state where the case had been tried, but no uniform national law resulted. As for the matter of admiralty law on which the appeals to the Continental court had been based, Wilson added, the subject of admiralty was itself one of exclusively national concern and ought to be tried and reviewed entirely within a national court system. Rufus King of Massachusetts joined the attack, directing his argument at Sherman's economy rationale: the application of a uniform national law in national trial courts would cost less than the process of appealing from state trials to Federal review, since appeals would be less frequent where a uniform national law had been applied at the trial level.

Proceeding from the organizational question to a jurisdictional one, the delegates then deadlocked over the proposal that the Federal high court should have the power to declare state laws invalid. Such an invasion of local sovereignty, declared Rutledge and others, would doom any chance of ratification of the new Constitution in the states. Madison replied that since the state courts would tend to give effect to state laws
which might trench upon national rights, a national court of necessity had to review and where necessary strike down such holdings. Edmund Randolph added that it was essential to declare (as the "supremacy clause" of the Constitution does declare) that all state and national officials were to be bound by the supreme law of the land. Judicial independence was another essential upon which Madison and Wilson insisted--appointment for life (i.e., during good behavior), no diminution in salaries, and nomination by the executive with confirmation by the Senate.

The debates in the Convention continued through the summer, with the advocates of a strong, independent and national judiciary holding their ground against a succession of objections by states' rights zealots. The completeness of their victory is illustrated in the opening language of the judicial article of the new document:

"The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."

The first clause of the following section of this article then filled in the dimensions of this judicial power:

"The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority; --to all Cases affecting Ambassadors, other public Ministers and Consuls; --to all Cases of admiralty and maritime Jurisdiction; --to controversies to which the United States shall be a Party;-- to Controversies between two or more States;--between a State and citizens of another State; --between Citizens of different States; --between Citizens of the same State claiming Lands under the Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."

The mere recital of these specific areas of jurisdiction was a reminder of the cumulated problems of the new nation in the vacuum between the disappearance of the pre-Revolutionary royal courts and the advent of the new constitutional system.

To "sell" the new Constitution, and particularly to explain the significance of the various articles including the judicial article, the local press was the logical medium for pseudonymous writers pro and con, state by state.  The most famous of the newspaper articles, in the critical state of New York, was a series assembled by Alexander Hamilton, John Jay and James Madison which became known to history as The Federalist. It was
clear that to overcome New York's entrenched opposition, a most eloquent and persuasive case had to be established--and established fast. This called for the most convinced writers--Hamilton, the only member of the New York delegation to the Constitutional Convention to sign the final document; Jay, the young nation's
most experienced diplomat and therefore the most knowledgeable person available to make clear the vital need for a strong sovereign United States in the society of nations; and Madison, the prolific Virginia note-taker at the convention, whose participation in the convention itself and whose authoritative commentaries in the form of his notes were to earn him in his lifetime the accolade of "Father of the Constitution."

Hastily written against newspaper deadlines as these articles were, they reflected the deepest convictions of some of the most dedicated men of their time. As a result, the series was published in book form even before the end of its serialization--and it continued through many editions and translations to the present. Intended originally for an ad hoc campaign, they became in effect the primary reference on the theory of constitutional government in the United States.

The articles on the Judiciary reiterated the basic arguments on the subject at Philadelphia. Hamilton did take occasion, however, to enlarge upon his own convictions. He agreed with Madison that a full-fledged judiciary (i.e., competent to try and review cases) was implicit in the principle of separation of powers. He contended that a government of limited powers, which the Constitution established, required a judicial branch with final authority over the nature and scope of these powers, and the relationships of state and
nation in a federal system. Judicial control--Hamilton did not use the term judicial review--was indispensable in a government of delegated powers, since (to quote recent constitutional pronouncements) no agency should be the final judge of its own authority.

The struggle for ratification of the new Constitution took nine months, from November 1787 to July 1788; nine states were needed to establish the majority, but since it was impractical to proceed without the key states of Virginia and New York, the campaign continued until the tenth ratification (Virginia's) was won in June and the eleventh (New York's) in July. (Rhode Island and North Carolina held out until after the new government had gone into effect. ) Congress finally mustered enough Senators and Representatives to
organize for business in March 1789; George Washington became President in April. The third branch--the judiciary--finally came into being in the famous Judiciary Act of September 24, 1789.

William F. Swindler is John Marshall Professor of Law at the College of William and Mary. He is the author of the three-volume Court and Constitution in the 20th Century (1969-74).

Copyright 1975, The Supreme Court Historical Society