The range of powers allocated to the judicial branch under state constitutions differs both quantitatively and qualitatively from the "judicial power" enumerated in Article III of the federal Constitution. The United States Supreme Court does, of course, have "supervisory" power over the federal courts. Alfred Hill, "The Bill of Rights and the Supervisory Power," Columbia Law Review 69 (February 1969): 181. The range of policy-making powers of state supreme courts, however, goes far beyond this type of supervisory power.

For an exhaustive review of the evolution of state supreme courts and the nature of their workload and opinions, see Robert A. Kagan, Bliss Cartwright, Lawrence M. Friedman, and Stanton Wheeler, "The Evolution of State Supreme Courts," Michigan Law Review 76 (May 1978): 961; "The Business of State Supreme Courts, 1870-1970," Stanford Law Review 30 (November 1977): 121; "State Supreme Courts: A Century of Style and Citation," Stanford Law Review 33 (May 1981): 773; and "Do the 'Haves' Come Out Ahead? Winning and Losing in State Supreme Courts, 1870-1970," Law and Society Review 21 (No. 3 1987): 403. Recent books concerning a range of issues on state supreme courts include G. Alan Tarr and Mary Cornelia Aldis Porter, State Supreme Courts in State and Nation (New Haven, Yale University Press, 1988); State Supreme Courts: Policymakers in the Federal System, eds. Mary Cornelia Porter and G. Alan Tarr (Westport, Conn.: Greenwood Press, 1982).

One of these studies concluded that state supreme court justices

... have come to view their role less conservatively. They seem to be less concerned with the stabilization and protection of property rights, more concerned with the individual and the downtrodden, and more willing to consider rulings that promote social change.

"The Business of State Supreme Courts," 155.

One of the most important innovations in state court structure in the Twentieth century is the advent of intermediate appeals courts, which are often the courts of last resort for many matters, thereby freeing state supreme courts from some of the pressure of caseloads. See generally, Project, "The Effect of Court Structure on State Supreme Court Opinions: A Re-Examination," Stanford Law Review 33 (May 1981): 951; Note "Courting Reversal-The Supervisory Role of State Supreme Courts," Yale Law Journal 87 (May 1978): 1191. For an in-depth study of the Florida District Courts of Appeal, see John M. Scheb, "Florida's Courts of Appeal: Intermediate Courts Become Final," Stetson Law Review 13 (Spring 1984): 479.

William F. Swindler,

"Seedtime of an American Judiciary: From Independence to the Constitution"

William and Mary Law Review

17 (Spring 1976): 503.

1976 William and Mary Law Review.
Reprinted by permission.

The Closing of the Royal Courts

In the increasing disputes between the colonies and the mother country preceding the war for independence, the nature of law and of the courts in British North America periodically came into question. Colonial leaders pointed retrospectively to the assumption, embodied in the earliest colonial charters, that the common law, modified to apply to the local needs of each settlement or "plantation," was the root stock of American jurisprudence. Once the issue of the authority of the common law in the colonies was belatedly raised, English authorities countered with the declaration that neither the common law nor

the English Constitution followed the flag except as England decreed. Essentially, this was the impasse on which the hope of avoiding revolution ultimately perished.

Although their authority to do so might be called into question, the colonies proceeded to adopt or adapt the common law, setting up systems of courts resembling the judicial structure remembered from England, but modified to the needs of each colony.3 Whatever the particular variations at the level of courts of first instance, one feature of the colonial judicial system was consistent: appeals lay from each colony directly to the Privy Council in London.4 Thus, when independence was declared, that appellate system became extinct for practical purposes. A new state constitution might undertake to create a new internal judicial system, both trial and appellate, but it could not fill completely the vacuum left by the defunct system of royal justice; beyond the individual jurisdiction of the state, there was no judicial machinery for the settlement of issues involving interstate and international questions.

The Declaration of Independence finalized the suspension of royal administration of justice in the colonies, but when that instrument was adopted by the Second Continental Congress in the summer of 1776, the royal courts had been closed for varying periods of time. The Massachusetts Government Act of 17745 had reorganized the administration of justice in that recalcitrant province, and the action of the provincial ad hoc assembly that responded to the parliamentary coercion marked the effective end of the royal court system in the colony. In the fall of 1775 Lord Dunmore extinguished the royal court system in Virginia by placing the colony under martial law. Indeed, the actions of all the colonies the previous winter, in assembling to elect delegates to the Second Continental Congress, had evidenced the end of the royal system.

Once before, in the Stamp Act crisis, the courts had closed their doors and suspended business. The finality of the break with England led to similar action; in Virginia the last session of the colonial assembly, acting in response to Dunmore's general suspension of civil power, pronounced it impossible for the civil courts to continue. Eighteen months later,

3Among various studies on the colonial judicial system, see J. Goebel & T. Naughton, Law Enforcement in Colonial New York (1944); G. Haskins, Law and Authority in Early Massachusetts (1960); W. Nelson, The Americanization of the Common Law (1975); A. Stokes, A View of the Constitution of the British Colonies in North America and the West Indies (1783), reprinted 1969).

4See J. Smith, Appeals to the Privy Council from the American Plantations (1950). 5Geo., 3, c. 39.

See E. Morgan, Prologue to Revolution: Sources and Documents on the Stamp Act Crisis, 1764-66, at 104-26 (1959).

the assembly enacted legislation to permit their reopening. In most states where similar action was taken, the structure and procedure of the courts remained unchanged. What did change was the extrajurisdictional situation, from a relation between colony and Crown on a colony-by-colony basis, to an interstate, and finally to a national state, relation. Independence had broad consequences for the administration of justice in the new United States. Not only did the official hiatus between the colonial system and the new federal-state system of judicial organization create disputes that required settlement following the Revolution, but there was also the problem of discontinuity of the system of law itself. The "reception" of the common law and the retention in force of selected parliamentary enactments required affirmative initiative by the new legislatures. Further, the question of judicial independence had to be resolved. Although some constitutional theorists assumed that the English concept of justice as an ingredient of the executive function would be retained, the prevailing doctrine of separation of powers moved in an opposite direction.10 What was of greater importance was the independence of judiciary, not from the other branches of government, but from the electorate.11

7Statutes at Large of Virginia 368 (ch. 3, 1777) (W. Hening ed. 1819-23, reprinted 1969 [hereinafter cited as Hen. (Va.)]: Whereas the troubles in which this commonwealth hath been involved, and its distressed circumstances, included the general convention, by several resolutions, to recommend it to the courts of justice not to proceed to the trial of suits,...and it is now judged indispensably necessary that all the said courts should be opened, for the general administration of justice: Be it therefore enacted.... That all the said resolutions of convention... are hereby repealed.

8A common form of controversy involved claims of English creditors against colonial debtors; such disputes were exacerbated by wartime sequestering statutes purporting to extinguish the liability. See, e.g. 9 Hen. (Va.) 377 (ch. 9, 1777). Like the proliferating interstate questions that awaited a national forum for adjudication, the adjustment of pre-Revolutionary claims by postwar settlements was not finally effectuated until a viable national power had been established under the Constitution of 1787. Cf. Ware v. Hylton, 3 U.S. (3 Dall.) 199 (1796).

See, e.g., 9 Hen. (Va.) 126, section 6 (ch. 5, 1776). See also E. Brown, Survival of British Statutes in American Law, 1776-1836 (1964).

10 See 1 J. Goebel, History of the Supreme Court of the United States: Antecedents and Beginnings to 1801, at 50-142 (1971).

11 Although the first state constitutions did not provide for electoral control over the judiciary, the impetus of Jacksonian democracy, a half century later, would cause many state judicial articles to be rewritten. For a general discussion of this development, see Justice '76 (G. Winters ed.) (to be published in 1976 by the American Judicature Society [hereinafter cited as Justice '76].

Thus, the nascence of the American judiciary was not an effortless duplication of English forms. States were required to develop judicial structures suited to their needs, and the new nation was obliged to devise judicial machinery to substitute effectively for the jurisdiction of the Crown over interstate and international disputes. The steps taken to lay this foundation commenced the evolution of the American judiciary.

Judicial Structures in the New States

Eleven of the thirteen states drafted constitutions for themselves following independence; Connecticut and Rhode Island were content to continue their governments under their colonial charters. The constitutional provisions generally eschewed innovative efforts to restructure the judicial power; the language assumed a continuation of the preRevolutionary court system. Another assumption was that the paramountcy of legislative power would limit and define the jurisdiction and authority of the judiciary. Thus, in the first decade after independence, the constitutional references to the court struc-ture were concerned with general functions, and the details of organization, procedure, and jurisdiction were adjusted eventually by legislation.

Students of the first state constitutions insist that the documents comprised two classes, those trying to preserve the existing order and those attempting to

Discussion Notes

1. The New Jersey Constitution of 1776, Article IX, provided:

That the Governor and Council, [the upper house of the legislature] (seven whereof shall be a quorum) be the Court of Appeals, in the last resort, in all clauses of law, as heretofore; and that they possess the power of granting pardons to criminals, after condemnation, in all cases of treason, felony, or other offenses.

This mechanism, which provided political review of legal decisions, remained in place until 1844. Chief Justice Hornublower, a delegate to the 1844 Constitutional Convention, commented that the Court of Appeals had "long since been christened by eminent counsel, not the Court for the correction of errors but the Court of high errors!" John Bebout, "Striking a Balance: Demand for an Independent Judiciary, 1776-1844," in Jersey Justice: Three Hundred Years of the New Jersey Judiciary, ed. Carla Vivian Bello and Arthur T. Vanderbilt II (Newark, N.J.: Institute for Continuing Legal Education, 1978) p. 122.

2. A major argument of Alexander Hamilton in The Federalist No. 81, in support of the

replace it, 16 but the provisions on the judicial power generally continued the organizational principles of the colonial era.

The Theory of the Judicial Function

The state constitutions implicitly or explicitly accepted the doctrine of separation of powers, though in many documents some control of the judicial process was vested in the legislative branch. . . . [T]he independence of judges generally was accepted, despite the animosity bred by the royal judges in the last years before the Revolution. Original and appellate jurisdictions, as one writer has observed, rarely were sharply distinguished,21 and few of the first constitutions made as definite a provision for last resort as did the Delaware instrument of 1792. Four states, Delaware, Georgia, New Hampshire, and South Carolina, scarcely mentioned the judiciary in their first sketchy constitutions; their succeeding instruments, however, generally set out in detail provisions on their

courts.

16 See, e.g., A. Nevins, The American States During and After the Revolution, 1775-1789, at 139, 157 (1927); G. Wood, The Creation of the American Republic, 1776-1787, at 391-469 (1969).

21See L. Friedman, A History of American Law 123-125 (1973).

independent federal judiciary, was that it did not follow states like New Jersey, but was rather "a copy of the constitutions of New Hampshire, Massachusetts, Pennsylvania, Delaware, Maryland, Virginia, North Carolina, South Carolina and Georgia; and the preference which has been given to those models is highly to be recommended." The Federalist No. 81, at 525 (A. Hamilton) (Modern Library Ed. 1937).

3. Article XXIX of Massachusetts' 1780 Declaration of Rights provided:

Art. XXIX. It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial, and independent as the lot of humanity will admit. It is, therefore, not only the best policy, but for the security of the rights of the people, and of every citizen, that the judges of the supreme judicial court should hold their offices as long as they behave themselves well, and that they should have honorable salaries ascertained and established by standing laws.

The doctrine of judicial review in federal constitutional law dates from Chief Justice Marshall's famous opinion in Marbury v. Madison, 5 U.S. 137 (1803). Interestingly, a number of state courts had exercised this power well before 1803, and even before the federal constitution was ratified. Edward S. Corwin contended that “[A]s a practice, judicial review made its initial appearance in independent America in 1780, in the case of Holmes v. Walton." Edward S. Corwin, "The Progress of Constitutional Theory between the Declaration of Independence and the Meeting of the Philadelphia Convention," American Historical Review 30 (April 1925): 521. Holmes v. Walton was a New Jersey decision striking down a statute providing for only six-man juries for persons accused of trading with the British, despite the 1776 constitutional guarantee of jury trial rights, which at common law required a twelve-man jury. See generally, Austin Scott, "Holmes v. Walton: The New Jersey Precedent," American Historical Review 4 (April 1899): 456.

Justice Gibson of the Pennsylvania Supreme Court wrote one of the most thoughtful arguments against the exercise of judicial review by state courts under state constitutions, although supporting it under the federal constitution, in 1825. Eakin v. Raub, 12 Sergeant and Rawle (Pa.) 330, 343-58 (1825) (Gibson, J., dissenting). See generally Robert Clinton, "Eakin v. Raub: Refutation or Justification of Marbury v. Madison?" Constitutional Commentary 4 (Winter 1987): 81. Twenty years later, after becoming Chief Justice, Gibson interrupted counsel who had cited Eakin v. Raub and said:

I have changed that opinion for two reasons. The late Convention [the 1838 Pennsylvania Constitutional Convention], by their silence, sanctioned the pretensions of the courts to deal freely with the acts of the

legislature; and from experience of the ne-
cessity of the case.

Norris v. Clymer, 2 Pa. St. Rep. 277, 281 (1845).

For studies of the early development of judicial review under state constitutions, see Edward S. Corwin, "The Establishment of Judicial Review," Michigan Law Review 9 (December 1910): 102; James B. Thayer, "The Origin and Scope of the American Doctrine of Constitutional Law," Harvard Law Review 7 (October 1893): 129; William E. Nelson, "The Eighteenth Century Background of John Marshall's Constitutional Jurisprudence," Michigan Law Review 76 (May 1978): 893; "Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1800," University of Pennsylvania Law Review 120 (June 1972): 1166.

In the waves of revision of state constitutions over the years, there seems to have been little controversy over increasingly prevalent practice of judicial review. Finally, a number of modern state constitutions contain explicit textual recognition, or even mandates, of judicial review:

Georgia Constitution, Art. I, Sec. 2, para. 5.

Legislative acts in violation of this Constitution or the Constitution of the United States are void, and the judiciary shall so declare them.

North Dakota Constitution, Art. VI, Sec. 4.

A majority of the supreme court [consisting of 5 justices] shall be necessary to constitute a quorum or to pronounce a decision, provided that the supreme court shall not declare a legislative enactment