administration was clearly brought out. If franchises granted to great proprietors were revoked or abridged, just compensation could be made: if those enjoyed by all free citizens of a colony which had been empowered to make laws for itself should be impaired, there was no redress, for there was no one in particular to whom to make payment, and if there were, liberty was beyond price.

The system of judicial appeals to the King in Council was worked out with more and more precision as the eighteenth century advanced. It continued to be distasteful to the colonists; but they could only oppose it by indirect means, such as requiring the appealing party to make a deposit of money, or give heavy bonds for payment, should he lose, of his opponent's costs.2 Occasionally, also, we find the American courts declining to carry out an order reversing their decisions, on the ground that it did not conform to the local practice established under authority of the charter.3

Some of the judgments rendered by the King in Council denied validity to colonial statutes which were of the first importance. Such was that in the case of Winthrop v. Lechmere, rendered in 1727, by which the rules of inheritance which had been followed in Connecticut for nearly a hundred years were set aside as contrary to the laws of England respecting primogeniture.

Certain political ideas were thus firmly embedded in the American mind. One was that every statute was subject to be set aside if its enactment transcended the powers conceded in the charter to the colonial legislature. Another was that there was a su

The idea of a supreme law of the land.

1 See the instructions as to allowing appeals in all causes involving £500, sent to the Governors of New Hampshire, Massachusetts, New Jersey, Pennsylvania, Virginia, and South Carolina in 1753. New Jersey Archives, 1st Series, VIII. 190. 2 A Pennsylvania statute passed in 1715, to this effect, was repealed by the Lords Justices in Council, in 1719. Pennsylvania Statutes at Large, III. 32. 3 Such was the case of Frost v. Leighton in the Superior Court of Judicature of Massachusetts, decided in 1738. Am. Hist. Review, II. 229.

4 Colonial Records of Connecticut, VII. 571, 191.

preme law the common law of England, modified in rare instances by Act of Parliament which was one and the same for every colony, and that if any of their judicial tribunals failed to respect it, the judgments could be reversed by an imperial court of appeal.

The jurisdiction of the King in Council, maintained hardly more for the protection of the royal prerogative than to repress the development of any distinctively colonial and un-English jurisprudence, thus served directly to prepare the way for the American theory of constitutional law. It supplied some of the necessary conditions by familiarizing our people with the elementary conceptions, the institutional prerequisites, out of which it must grow. No American jurisprudence, with a character of its own, could come into existence until there was a bar competent to shape it: a popular movement towards setting its foundations on definite principles of republican government; legislatures able and ready to begin the work of systematic codification; and courts of appellate jurisdiction with power to give unity and form to the proceedings of all inferior tribunals.

Legal educa

tion in the eighteenth

century.

1

For twenty years before the outbreak of the Revolution, the American lawyer had been coming to the front. Wealth was increasing, and property interests required more of his care. Law books were largely imported. It is believed that more copies of Blackstone's Commentaries, during the eighteenth century, were sold in America than in England. Their elegance of literary form appealed more strongly to our bar. Blackstone was the first English lawyer, for a hundred and fifty years, who, while in the practice of his profession, Lord Campbell has declared, paid the slightest attention, in writing, to the selection or collocation of words.2 The French writers on government and jurisprudence, of the new school, like Montesquicu, were also read in this country. Legal education

1 See American Historical Association Report for 1895, 203, 206; Documentary History of New York, IV. 930, 1148.

2 Lives of the Chief Justices of England, III. 475.

was made the subject of legislation. New Jersey prescribed a term of preparation for the bar longer, as respects its highest positions, than any State now requires, and provided for finally crowning the successful counsellor with the title of sergeant at law. Her Judges wore the official gown,2 and so did those in several of the other colonies.3 The control of public affairs was passing from the hands of those who, like Franklin and Trumbull and Washington, were not lawyers, to those who, like Adams and Jefferson and Johnson,

were.

Growing influence of lawyers.

In 1754 a Congress of commissioners from seven colonies was held at Albany, at the request of the Lords of Trade and Plantations, to concert measures of defence against the French and Indians, and frame a general plan of union. Franklin drew up such a plan and the Congress approved it. It would have set up a general American government, including all of the "old Thirteen" Colonies except Delaware and Georgia, much after the pattern of that of the present Dominion of Canada. The legislative authority was to have power to lay taxes for purposes of common defence.5 The lawyers rose up in a body against this scheme, when it was presented to the colonial assemblies. To give, they said, any power to tax to such a "Grand Council" as was proposed would be subversive of the privileges of free-born Englishmen as guaranteed by the colonial charters."

As the trading charters were one after another revoked or annulled, and the prevailing type of government became one in which the principal officers owed their appointment to the crown and were clothed with a veto power, the position that

1 Sanderson's Lives of the Signers, III. 83, 84.

2 Ibid., 105.

3 Life and Works of John Adams, II. 133.

4 Curtis, History of the Constitution, I. 8.

5 It is printed in Trumbull's History of Connecticut, II. 541.

6 Massachusetts Historical Society Collections, VII. 207–209; Trumbull, History of Connecticut, II. 353.

every American was inherently entitled to all the rights of the people of England was more and more strenuously as

Doctrine

that Americans had all rights of Englishmen.

serted. Magna Charta was now appealed to oftener than the colony charter, and there was a disposition to recur to fundamentals in politics which showed itself in all the great State papers that were produced here during the decade before the Revolution, as well as during that which followed it. This spirit, indeed, showed itself as early as 1754, when objection was made to the charter prepared for King's College in New York. It was proposed to insert a clause conferring upon it the right to appoint a representative in the Provincial Assembly. This had been done in the previous century without question, in the incorporation of William and Mary College in Virginia, but the rights of the people to speak for themselves and tax themselves had since attained a much higher degree of recognition by the crown, and the promoters of the new institution were obliged to relinquish their hope of making it a factor in the civil government of the colony.

Independence necessarily brought about a reconstitution of the judicial system of every State, and at the close of the Revolution Georgia was the only one which was Our Supreme Courts. found without a supreme tribunal of last resort.2 In some, as, for example, in New York and New Jersey, the ancient system was preserved of making it half a judicial and half a political body: in most it was now made strictly judicial in its composition and its functions.

The way was thus opened for securing certainty and precision in the laws of each State as fast and as far as they might become the subject of adjudication. But

Law Reports. to do this it was necessary not only that cases should be ultimately decided by one authority, but that the nature and scope of the decisions should be made generally known. Idem est non esse et non apparere. Hence came the

1 Documents relative to the Colonial History of New York, VIII. 573.

2 Hildreth, History of the United States, III. 378.

necessity for publishing judicial reports, the first of which1 appeared from the press of a country printer in Litchfield, Connecticut, in 1789. Its author had been one of the students at Yale who left it to serve in the Revolutionary Army, and had received from her the degree of Master of Arts in 1787. His work had been made possible by a statute of Connecticut passed in 1784, on the recommendation of Roger Sherman and Richard Law, requiring the Judges of the Supreme and Superior Courts to file written opinions, in disposing of cases on points of law, so that they might be properly reported and "thereby a foundation laid for a more perfect and permanent system of common law in this State."2

The absence of any reports earlier than Kirby's has made it a subject of dispute when the first American judgment was rendered which declared a statute void because it was unconstitutional.

unconstitu

Probably it was one pronounced in New Jersey. That State was one of the first to act under the recommendation made by the Continental Congress on May 10th, Adjudging 1776, that in all colonies which had not already tional statutes established a government "sufficient to the exi- void. gencies of their affairs," the "assemblies and conventions" should proceed to "adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular and America in general. "4 A Provincial Congress then sitting in New Jersey, immediately issued a call for the election of a new Congress or Convention to meet in the latter part of the same month, and this body when it assembled assumed the functions of a constitutional convention.5 The form of constitution which it adopted was never submitted to a popular vote, but it was received with general public acqui1 Kirby's Reports.

2 Statutes of Connecticut, Revision of 1784, p. 207.

8 Virginia has claimed priority in principle, but the precedent is hardly made out. See American Historical Review, I. 444, Case of Josiah Philips.

4 Journals of Congress, II. 166.

6 Jameson on Constitutional Conventions, § 139.