Federalist No. 78, Part II: Context, contd.

Granting that there were a great many factors – political, cultural, philosophical, and economic – that helped to direct the course of the American Revolution and influenced the particular expression of republicanism that emerged from within the same, the evident impasse between the claimed supremacy of the British Parliament and the claimed inviolability of the colonial charters almost certainly played a significant role in shaping the way citizens of the United States believed government ought to function. Having grown accustomed to the use of said charters, for example, pro-revolutionary Americans took the unusual step – for the 18^th century – of drafting constitutions for their newly-independent states between the years 1776 and 1780. And while these early constitutions took on many different forms and arrangements – some hewed quite closely to the charters that they replaced, while others adopted radically innovative structures – they almost all had several key characteristics in common. The first was that they derived their legitimacy from the people they were intended to affect. In consequence, every aspect of the resulting state governments – from the legislature, to the executive, to the courts – was directly or indirectly responsible to the people of the various states. This quite significantly set the state governments apart from the British government, within which only Parliament – as opposed to the courts or the Crown – was held to represent the will of the general population. As a result, while the legal supremacy of the British Parliament evolved as means of guarding the rights of the people against the authority of non-representative government entities or institutions, the citizens directly affected by the various pro-revolutionary American state constitutions required no such protection. Their collective will was embodied by the legislature, the executive, and the courts alike, and all were bound by the terms of the relevant governing document.  

The second aspect shared by nearly all of the early American state constitutions was that they were each, in some way or other, limited documents. That is to say, the text thereof placed specific limitations on what the relevant institutions of government could and could not do. In most cases these limitations took the form of a bill or charter of rights, the codification of which was intended to secure certain paramount protections against potential encroachment or violation. The Virginia Bill of Rights, for example, guaranteed freedom of the press and trial by jury and prohibited excessive bail and cruel and unusual punishment, while the equivalent addendum to Pennsylvania’s 1776 constitution declared that freedom of religion and the right to bear arms were similarly inalienable. Sharp-eyed readers will no doubt have noticed that these protections are very similar to some of those first codified by the English Bill of Rights of 1689, and may thus be given to wonder whether or not the 18^th century British Constitution could also be considered a limited document. In point fact, it cannot. Whereas the guarantees cited above were written into the constitutions of the relevant states, the Bill of Rights was – and is – simply an Act of Parliament. In consequence, Parliament may freely alter, repeal, or abrogate the Bill of Rights and its various provisions simply by passing further legislation to the contrary. Furthermore, the Bill of Rights was never intended to restrain the authority or privileges of Parliament itself. Adopted into law at the conclusion of perhaps the most violent century in the history of English politics, the Bill was meant to place clear restrictions on the ability of the Crown to exercise its claimed prerogatives in opposition to the customary rights of either the people or their elected representatives.

The early state governments of the Revolutionary era were therefore quite unusual within the realm of 18^th century Anglo-American political culture. Unlike the British Constitution, which was alterable by Parliament at any time – and thus could not restrict the same authority from passing whatever laws it cared to – almost all of the state constitution placed some manner of restrictions on what the relevant institutions of government could accomplish. Under the terms of its 1776 constitution, the government of Pennsylvania could not require the citizens thereof to profess or support a particular religious observance. Likewise, the government of Virginia was prohibited from imperilling the ability of any individual or organization form printing or distributing whatever information they wished. Not only did these kinds of codified protections quite clearly set the style of republicanism favored by pro-revolutionary Americans apart from the Parliament-centered model of their British forebears, but their existence embodied a comparatively novel understanding of authority and accountability in government. If the various state governments were to be explicitly prohibited from taking certain kinds of actions, some mechanism would need to be put in place to provide the necessary oversight and restraint. Because neither legislatures nor executives could be depended on to police themselves, and because the associated task of measuring statutes against a core text was fundamentally a matter of law, the task would seem to inevitably devolve upon the state judiciary.

On that note, it would appear a worthwhile proposition to conclude this extended introduction to Federalist No. 78 by taking a moment to examine some of the ways that the various state constitutions structured their respective judicial branches. In fashioning a federal judiciary – something which, under the Articles of Confederation, simply didn’t exist – the various delegates to the Philadelphia Convention were doubtless inclined to see the corresponding models adopted by their homes states as potential inspiration. Let us therefore take up our customary representative sample and attempt to discern exactly what post-Revolutionary Americans had come to expect of their high courts as of the late 1780s.

Of note upon examining the constitutions of Massachusetts, Maryland, Georgia, Pennsylvania, New York, and South Carolina that were in force as of 1788 is how little space these documents seem to dedicate to describing the composition, powers, and jurisdictions of their respective high courts. The 1777 constitution of New York, for instance, does little more than mention the names of its supreme judicial bodies – the Supreme Court and the Court of Chancery. The twenty-fourth article of said document declared that the Chancellor – the head of the Court of Chancery – and the judges of the Supreme Court were to, “Hold their offices during good behavior or until they shall have respectively attained the age of sixty years [,]” while the twenty-third article directed that these same offices be appointed by the majority vote of a specially-formed Council of Appointment, composed of one Senator from every electoral district and presided over by the Governor. Save for some additional provisions located in the thirty-second article for the trial of impeachments, no further direction was provided. South Carolina’s 1778 constitution was similarly sparse in its description of the Palmetto State’s court system. Article twenty refers to “Either of the courts of justice [,]” seemingly indicating that there were two high courts of consequence. One, the Court of Chancery, is mentioned in articles twenty-four and twenty-seven, while another, the Court of Admiralty, is briefly noted in article twenty-five. The aforementioned article twenty-seven also declared that all judicial officers besides justices of the peace, “Shall be chosen by ballot jointly by the senate and house of representatives,” and that service – save for justices of the Court of Chancery – would be during good behavior, “But shall be removed on address of the senate and house of representatives.”    

Georgia’s 1777 constitution provided only slightly more detail as to the form and function of that state’s high courts. Article forty contained the only reference to a Supreme Court, to be comprised of a Chief Justice and three additional justices drawn from the county court of whichever locality played host to the relevant suit. To that, article forty-four added a provision for forming an ad-hoc admiralty court, for the trying of, “Captures, both by sea and land […] in the county where such shall be carried in [,]” and to be presided over by the aforementioned Chief Justice. Nowhere was it otherwise explained how the Chief Justice was to selected, on what terms they were to serve, or the extent of the Supreme Court’s jurisdiction. The Constitution of Massachusetts, in spite of its remarkable structure and detail – compared to the contemporary governing documents of most other states, certainly – appeared similarly unconcerned with such details. In spite of devoting an entire named subsection to the “Judiciary Power” of the Bay State, said document did little more than explain that, “All judicial officers, duly appointed, commissioned and sworn, shall hold their offices during good behavior,” with the caveat that, “the governor, with consent of the council, may remove them upon the address of both houses of the legislature.” It was meanwhile left to article nine of the subsection describing the powers of the state’s chief executive to set forth the process by which officers of the court were to be chosen – i.e. by the Governor, with the “advice and consent” of an executive council.

Pennsylvania’s radical 1776 constitution hardly devoted much more attention to the essential character of that state’s high courts, though it managed with concision to convey more than most did at length. Section twenty declared that the President of the Executive Council – in effect the Governor of the Keystone State – would, along with a quorum of at least five of their fellow councillors, possess the right to, “Appoint and commissionate [sic] judges, naval officers, judge of the admiralty, attorney general and all other officers, civil and military, except such as are chosen by the general assembly or the people [.]” Section twenty-three further decreed that justices of the Supreme Court of Judicature – the state’s highest court – would be, “Commissioned for seven years only, though capable of re-appointment at the end of that term, but removable for misbehaviour at any time by the general assembly [,]” while section twenty-four authorized said Supreme Court, “And the several courts of common pleas of this commonwealth,” to exercise, “the powers of a court of chancery,” as it related to a number of fairly common writs and procedures. Of note in the latter section was a description of the named judicial bodies as possessing, “The powers usually exercised by such courts [.]” While, on the surface, this might seem like distressingly vague verbiage to be included in a written constitution, it was certainly not out of keeping with the way most other states seemed to approach the structure and responsibilities of their own high courts.

Of those examples here examined, the 1776 constitution of Maryland went to the greatest lengths by far to provide a fairly clear and unambiguous outline of that state’s highest judicial authorities. Indeed, so apparently concerned were its framers that their intention not be mistaken that they determined to include a kind of statement of intent within the completed document’s introductory Declaration of Rights. “That the independency and uprightness of Judges [,]” stated the relevant clause,

Are essential to the impartial administration of Justice, and a great security to the rights and liberties of the people; wherefore the Chancellor and Judges ought to hold commissions during good behaviour; and the said Chancellor and Judges shall be removed for misbehaviour, on conviction in a court of law, and may be removed by the Governor, upon the address of the General Assembly [.]

The practice of allowing judges to serve during good behavior was further reiterated in article forty of the constitution proper, while article forty-eight delegated the power of appointing the same to the Governor, “With the advice and consent of the Council [.]” Article fifty-six, meanwhile, provided an integral note on the actual structure of the courts in question, as well as their relative jurisdictions. “That there be a Court of Appeals,” it first declared, “composed of persons of integrity and sound judgment in the law, whose judgment shall be final and conclusive, in all cases of appeal, from the General Court, Court of Chancery, and Court of Admiralty [.]”

This clause alone arguably provides more substantive detail as to the practical hierarchy of the relevant courts than any of the other state constitutions herein examined. By its terms, the Court of Appeals was to function as the state’s highest court, with the General Court below it and the Courts of Chancery and Admiralty presumably handling the duties accustomed to such bodies – writs and maritime law, respectively – within the Common Law tradition. Were this not enough, article fifty-six further declared that one person, possessed of, “Integrity and sound judgement in the law [,]” was to be appointed Chancellor – the highest judicial officer in the state – while a further three people, possessed of similar personal qualities, were to be appointed judges of the General Court. Said court, it was further explained, “Shall sit on the western and eastern shores, for transacting and determining the business of the respective shores, at such times and places as the future Legislature of this State shall direct and appoint.” Thus, with admirable economy, the framers of Maryland’s inaugural constitution not only provided an unambiguous outline for the physical composition of the two highest courts in the state, but they even denoted – granting, of course, the state legislature the discretion that was its due – the general jurisdiction of the General Court itself. 

Without knowing exactly why the men behind the Old Line State’s first constitution thought to delve into such detail – certainly compared to a number of their contemporaries – their efforts most definitely make it a great deal easier to discern exactly what post-revolutionary Americans expected of their relevant judiciary authority. Combined with what scant details can be gleaned from the other state constitutions discussed herein, a number of observations would seem to occur. First and perhaps foremost, it would seem that service during good behavior was very much the standard tenure in office for high court justices during the post-Revolutionary period. Of the six state constitutions here examined, four (New York, Massachusetts, Maryland, and South Carolina) recognized this practice, one (Georgia) made no mention of any term of service, and one (Pennsylvania) decreed that justices stand for re-appointment every seven years. Granting that Pennsylvania’s constitution was particularly exceptional among the governing documents of its sister states, and that Georgia’s omission should not necessarily be read as a denial, it would appear that the tradition of life tenure first extended to justices in England by the Act of Settlement (1701) remained one of the cornerstones of the emerging independent American jurisprudence. The aforementioned article of the Maryland Declaration of Rights seems in particular to speak to this sentiment – by reiterating the same basic contention that the earlier British statute first introduced into law, it effectively testified to the degree of consistency still to be found in contemporary Anglo-American legal culture. Whether as colonies or as independent states, it seemed, late 18^th century American were more or less decided as to the importance of such principles as judicial independence.

The finer details of court structure, judicial hierarchy, and appointment procedures, on the other hand, seemed far more amenable to innovation. While, of the six constitutions under consideration, five (New York, Georgia, Pennsylvania, Massachusetts, and Maryland) made explicit mention of either a “Supreme Court” or a “Court of Appeals” as the highest statewide judicial body, three (New York, South Carolina, and Maryland) named a “Court of Chancery” as a supplementary judicial body, two (South Carolina and Maryland) made provision for a “Court of Admiralty, and only one (Maryland) discussed the existence of a “General Court” separate from the Supreme, Chancery, or Admiralty Courts. While all of these different types of courts were common to either the English/British legal tradition or to the forms and procedures practised in the pre-Revolutionary colonies, there seemed to be little if any agreement among the newly-independent states as to which specific set of legal institutions best served the general public. Some, like Pennsylvania, adopted a fairly streamlined judicial apparatus – a single statewide supreme court with chancery jurisdiction as needed – while others, like Maryland, opted to at least partially replicate the more complex system of high courts – a supreme court above, general court below, and chancery and admiralty courts in the wings – then operating in contemporary Great Britain. While this circumstance is perhaps not all that surprising – Americans, in that moment, being in many ways stretched between the twin poles of risk-laden innovation and stable precedent – it does make it difficult to account for any single set of shared expectations as to the structure, authority, and purpose of a high court.

The various procedures by which state governments in the 1780s determined to appoint their various judicial officers presents a similar image of manifest inconsistency. New York’s 1777 constitution, for instance, created a special body, the aforementioned Council of Appointment, for the purpose of commissioning cabinet officers, magistrates, mayors, and judges. In practice, this committee – comprised of the Governor and one senator from each of the state’s four upper house districts – saw its chairman put forth nominees and its regular members accept or reject them. The 1780 constitution of Massachusetts also gave authority over judicial appointments the Governor and a small body of advisors, directing that the relevant executive council was to comprise a quorum of at least five state senators. That being said, it was also possible that all forty senators mandated by the constitution could be asked to provide advice and consent on judicial appointments, thus creating a dynamic closer to that which presently exists between the President of the United States and the U.S. Senate. Pennsylvania also left the selection and commissioning of judges to its chief executive – i.e. the President – and their councillors, though every member of the twelve-person body was to be popularly elected. While Maryland’s 1776 constitution likewise decreed that governor and council would make all appointments to the judicial branch of the state government, it also differed from New York, Pennsylvania, and Massachusetts by providing that its five executive councillors be selected by a joint-ballot of the state legislature. South Carolina’s 1778 constitution also adopted a joint-ballot of the state legislature as a mechanism of key decision-making, though it turned it directly upon the appointment of judicial officers rather than at councillors who would in turn vote on judicial nominees. Georgia’s 1777 constitution, meanwhile, made no mention whatsoever of how judges were to be appointed or by whom.

An obvious consequence of these varied appointment procedures would seem to be, as above, the emergence of very different expectations as to the ideal or even normal relationships between the relevant state executive, legislature, high court, and general population. While New York’s Council of Appointment may have succeeded in creating a potentially beneficial sense of separation between the legislative and judicial branches, it was also prone to deadlock in the event that the nominating officer (the Governor) and the voting members (the chosen state senators) came from different parties. Knowledge of such disagreements doubtless fuelled a sense of cynicism among public servants and voters alike, thus lending judicial appointments – among others – a more partisan character than was perhaps wholly desirable. The contemporary citizens of Pennsylvania, meanwhile, could rest comparatively easy in the knowledge that they themselves chose the councillors who in turn filled the ranks of the Supreme Court of Judicature. This gave them an almost unparallelled degree of influence over the character of the Keystone State’s high court, which in turn undoubtedly conditioned what the average Pennsylvanian believed to be the proper dynamic between judicial authorities and the people whose lives their verdicts affected. The other state constitutions herein examined arguably fell somewhere on a spectrum between these two extremes – some tended towards greater executive input, thus painting judicial appointments as a distinctly elite responsibility, while others favored legislative discretion, no doubt leading to a more popular understanding of what characterized the ideal officer of a state’s high court. In short, as with the structure of their respective judiciaries, there seemed to exist no solid consensus among the states in the 1780s as to whom high court justices owed their office, which branch of government ought to most closely shape the relevant state’s jurisprudence, and what, if any, input the average voter was to enjoy.     

Before concluding – with, it would seem, something like a shrug – it is almost certainly worth acknowledging two final points. The first would seek to address the noted vagueness with which the state constitution discussed in this entry characterized their respective judicial authorities. For whatever reason – perhaps because they regarded them as the least monarchical branch of their existing governments – many of the colonies-cum-states declined to significantly alter their existing court systems when they transitioned to independence from Great Britain in the 1770s. The New York Court of Chancery, for instance, whose existence was acknowledged and supported by that state’s 1777 constitution, was actually established in 1701 under the authority of the then-Province of New York’s royal governor. The Court of Chancery, and the attendant office of Chancellor, would go on to exist for a further one hundred and forty-six years, in the meantime exerting a powerful influence upon the jurisprudence and legal culture of the Empire State. Similarly, the 1776 constitution of Maryland decreed that the existing Provincial Court – established at some point between the late 1630s and early 1640s – would continue to function under the name of the General Court, with its justices appointed yet still by the Governor and their councillors. While these represent some of the more prominent examples from among the original thirteen states, they were far from the only high courts that had been carried over from the colonial era with only moderate alteration. Late 18^th century Americans, it seemed, were not particularly interested in redefining how their high courts functioned or the role they fulfilled within the context of codified government.  

An inevitable consequence of this evident lack of interest in judicial innovation would almost certainly have been a greater reliance on precedent than in matters legislative or executive. Unlike the relevant governors, presidents, state senates and assemblies, quite a number of the high courts named in the various state constitutions of the 1770s were direct continuations of existing institutions. As a result, the bodies of law that had been built up during the colonial era – stretching back, in some cases, over a century – as well as the accumulated procedures, customs, and practical norms, would have continued to apply to all legal proceedings undertaken in the various states. For example, though the justices of Pennsylvania’s Supreme Court of Judicature were, unlike their executive-appointed predecessors, elected to serve seven year terms, every ruling made by the former continued to take account of and build upon the verdicts handed down by the latter. Not only was this was very much in keeping with the logic of common law jurisprudence – a tradition rooted in adherence to convention and rejection of originality – which most Revolutionary Americans continued to think of as their birthright, but it also constituted perhaps the most enduring link between the emerging American style of republican government and the seemingly-rejected English mode of parliamentary government. It would also seem to suggest that if the citizens of the various Americans states that existed as of the late 1780s shared any single expectation as concerned their high courts, it was most likely a degree of consistency and stability.

A second point worth paying heed to – whose significance will become increasingly obvious as this series progresses – is the manner by which the various early states constitutions came into force. Of the original thirteen, two (Connecticut and Rhode Island) chose to retain their original colonial charters upon declaring independence in 1776. In consequence, during the period of time that said charters remained in force – until 1818 in Connecticut, and until 1842 in Rhode Island – they were both the paramount law of their respective states and the only American constitutions whose legitimacy was arguably derived from convention and tradition rather than popular approval. Massachusetts, meanwhile, was the only state whose constitution was drafted by a convention called specifically to do so, and theirs the only constitution that was ratified by the general population of said state. The Bay State’s 1780 constitution – still in force today – could therefore quite fairly claim to represent the collective will of the people of Massachusetts, beholden to and alterable by them alone. Every other state, from New Hampshire to Georgia, saw its inaugural constitution drafted by the relevant provisional legislature and passed into law by a standard vote therein. As a result, the constitutions of said states were treated during their existence as if they were normal statutes that could be altered at will by the same body that had originally given them force. Thus, for instance, the state legislature of New York could lawfully determine to ignore or abridge any article or clause of that state’s 1777 constitution. As the state legislature was the legal successor of the pro-Revolutionary Provincial Congress, and the Provincial Congress had drafted and ratified the selfsame constitution, the former maintained the right to alter or abolish what, for all intents and purposes, it had itself created.

This fact, and those others cited above, bears particularly upon the topic of high courts in the post-Revolutionary United States and the expectations thereof because of what it implies about the relationship between the general public, their government, and their constitution. Whereas the people of Massachusetts could have reasonably expected that they themselves were the only authority that could make alterations to the Bay State’s constitution, and whereas the citizens of Connecticut and Rhode Island seemed to regard even their post-independence state governments as being beholden to their ancient royal charters, most Americans in the 1780s lived in political communities that recognized their respective legislature as the highest power therein. Chief executives could not contain them – a number, in fact, were appointed by joint-ballots of the appropriate upper and lower houses. High courts could not check their authority – possessing the ability to alter the constitution at will, legislatures could empower or enfeeble judicial institutions as they saw fit. However tenuous an arrangement this might now seem – as, indeed, it seemed to a number of contemporary observers – it was very much the norm in the post-Revolutionary United States, and most definitely conditioned what Americans in the late 1780s had come to expect from constitutional government.