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A, Antecedents to the Court.

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Antecedents to the Court.

English history, American colonial experience, and the operation of the national government under the Articles of Confederation provide the background for the U.S. Supreme Court authorized by *Article III of the Federal Constitution.

English Antecedents.

By the time of English colonization of North America, there were three *common-law courts: Common Pleas, King’s Bench, and Exchequer. The first exercised general *civil jurisdiction; the second was a criminal trial court, with certain appellate authority over Common Pleas; and the third, originating as a revenue collection agency, determined controversies to which the Crown was a party. A fourth court, the High Court of Chancery, provided a system for giving equitable relief to parties that were precluded from recovery by the strict rules of common law, and it has been said that the court’s authority was based upon the king’s obligation to do justice to his subjects.

These four courts formed the basis for colonial court systems, and variations between colonial systems resulted from assigning jurisdiction to courts of a different name or combining types of jurisdiction within one or more courts. After 1686 a number of colonies adopted the jurisdictional pattern established by Sir Edmund Andros for the Dominion of New England. This placed the jurisdiction of Common Pleas, King’s Bench, and Exchequer into a single common-law court, usually called a Supreme Court of Judicature, or a Supreme Judicial Court. In Massachusetts, Pennsylvania, and some other jurisdictions the functions of a chancery court were performed by the common-law courts; but it was usually the case that chancery powers were exercised by a separate chancery court, in most cases composed of the colonial governor and members of his council. American colonial legal systems drew heavily upon the English court system for their concepts of jurisdiction, but they also tended to combine types of jurisdiction that for historical reasons remained separate in England. The Supreme Court of the United States, exercising both common-law and equity jurisdiction, represents a continuance of this American trend (see judicial power and jurisdiction.)

Separate from the English common-law and chancery courts was the High Court of Admiralty (established ca. 1360), which decided civil disputes that occurred on the high seas, punished crimes and piracy, and in time of war exercised prize jurisdiction (necessary to award an enemy vessel and its cargo to the capturing crew). American colonial admiralty courts (formally established ca. 1696) performed these functions under the appellate control of the English High Court of Admiralty.

In England judges of the common-law courts had traditionally gone on circuit to try cases (called “nisi prius” or “assize” jurisdiction), with the entry of judgment and decision of difficult points of law being reserved to the whole bench of their courts after completion of the circuit. Most American colonies adopted some form of this “nisi prius” jurisdiction, which continued in state practice after the War for Independence. The United States Supreme Court, as originally established by the *Judiciary Act of 1789, was involved in the trial of cases in the federal circuit courts. One or more Supreme Court justices were assigned to a circuit, covering a number of adjacent states, and presided over trials with the assistance of district judges (see circuit riding). Although technically this was not trial at nisi prius as practiced in England, it was similar in utilizing appellate court judges for the trial of cases throughout the nation. After the 1802 Judiciary Act (see judiciary acts of 1801 and 1802), the Supreme Court was empowered to decide questions certified by the federal circuit court when the judges of that court could not agree; this was a close parallel to nisi prius practice in England.

English Imperial Administration.

Colonial and early state practice and court organization drew much from English models, and the U.S. Supreme Court reflects a similar inheritance, particularly in regard to its authority within the federal judicial system. However, the Supreme Court also functioned within a federal system that presented many of the same administrative challenges as did the British Empire on the eve of the American Revolution (see federalism).

Central to English/British imperial administration was the function of the Privy Council, a group of royal advisers that since Tudor times (1485–1603) exercised general administrative supervision over the realm and that since ancient times had exerted appellate judicial authority over the dominions of the Crown (that is, lands owing allegiance to the Crown, but not forming part of the realm of England). In regard to the American colonies, the Privy Council was responsible for reviewing colonial legislation and disallowing, in the monarch’s name, (p. 40) such legislation that was repugnant to the law of England. Within certain jurisdictional amounts, the decrees and judgments of colonial courts were also subject to appellate review before the Privy Council. These functions, coupled with general administrative supervision of colonial governments, put the Privy Council in a position to control colonial initiatives, to ensure compliance with international law, and to shape colonial economic policies to English priorities.

*Admiralty cases decided in American colonial vice-admiralty courts were subject to appellate review in the English High Court of Admiralty, and in a limited number of instances, to Privy Council review. This insured that maritime cases, the interpretation of international law, and the exercise of prize jurisdiction would remain within the control of the home government at Whitehall.

Conflicting *land grants at times threatened to generate hostilities between American colonial governments, or between those who held titles from differing colonies. The Privy Council established boundary commissions to arbitrate the dispute and report their findings to the Council, which would then officially establish the new boundary. The procedure was made part of the Articles of Confederation (put into effect in 1781), and formed a basis for the Federal Constitution’s grant of boundary jurisdiction to the United States Supreme Court.

*Federal question jurisdiction in the United States Supreme Court, particularly in matters of international law and treaty rights, mirrors the function of the Privy Council and High Court of Admiralty in coordinating colonial initiatives with the diplomacy and public policy of the mother country. Other federal question issues arise when state laws or court decisions conflict with federal constitutional or statutory law. The Supremacy Clause (Art. VI) of the federal Constitution mandates that the federal provisions supercede state law. In this regard the U.S. Supreme Court performs functions similar to those of the Privy Council when it disallowed colonial laws deemed repugnant to the “Law of England.” The standards of appellate review are quite different since the Privy Council was not bound by a written constitution in making its determinations.

One of the essential functions of the Privy Council was the control of colonial economic activity, thus assuring that the benefit of trade accrued to the mother country. In the federal Constitution the United States Supreme Court by virtue of the Commerce Clause of the Constitution (Art. I, sec. 8) has similar authority designed to discourage state mercantilism and to insure uniform rules in interstate and foreign commerce. While the Privy Council maintained economic control over colonies, federal authority under the Constitution exists to create and police a common market among the American states.

Early State Constitutions.

Since the generation that fought the American Revolution preferred legislative to executive or judicial authority, many of the early state constitutions placed legislative tribunals at the head of their court systems. Composed of judges, members of both houses of the legislature, and perhaps some representative of the executive branch, these appellate courts proved to be cumbersome agencies for the review of cases litigated in the judicial courts. The establishment of the United States Supreme Court in the federal Constitution represents a clear preference for the doctrine of *separation of powers; it also demonstrates renewed confidence in the ideal of an independent judiciary that had been a point of public debate in the years preceding the Revolution.

Some state constitutions contained provisions for constitutional review of legislative acts either before their effective date or thereafter. Under New York’s 1777 constitution, a Council of Revision, composed of the governor, the chancellor, and the justices of the Supreme Court, exercised a suspensive *veto over legislation. The legislative act could become law only if it was repassed by a two-thirds vote of both houses of the legislature. Pennsylvania’s 1776 constitution established a board of censors to draw public attention to the defects of statutes and the misfeasance of state officers. The Virginia Plan, as presented to the Philadelphia Constitutional Convention, proposed that the federal legislature be empowered to review and disallow state legislative acts; that proposal was defeated, but the supremacy clause was inserted in Article VI, creating the strong inference that the United States Supreme Court should exercise judicial review in aid of federal supremacy.

Articles of Confederation.

Although drafting of the Articles was completed in 1776, rivalry between the states over western land claims delayed ratification until 1781. Judicial authority under the articles was limited to boundary disputes, conflicting land claims based on disputed boundaries, and admiralty, maritime, and prize jurisdiction to review decisions of state admiralty courts.

Boundary claims were adjudicated by mixed arbitration tribunals under Article IX of the Articles of Confederation. These followed Privy Council procedures and were utilized to resolve a dispute between Connecticut and Pennsylvania over lands in the northeastern corner of the latter state (1782) and a similar disagreement between New York and Massachusetts concerning western New York (1784). Article III, section 2 of the (p. 41) Federal Constitution gives this power to the Supreme Court of the United States. Also within that section is the authorization to decide the adverse claims of private parties claiming land under the grants of two American states.

Before the Articles of Confederation were ratified admiralty jurisdiction was exercised by a committee of Congress that reviewed the decisions of state admiralty courts. In 1781 a Court of Appeals in Cases of Prize and Capture was established; it disposed of more than one hundred cases in the two years of its existence. When the Supreme Court of the United States began its sessions, the official records of the Court of Appeal were deposited with the Supreme Court clerk.

Ratification of the Constitution.

Discussion of the federal Constitution, both at the Philadelphia Convention and in the ratifying conventions of the various states, indicated that the establishment of a separate federal judicial system was the cause of much concern. There was fear of trials being conducted at distant and inconvenient locations. Many participants in the conventions expressed fear about the lack of jury trial protections in the text of Article III. These, and many other objections, were the product of American legal traditions that dated back to the days of Puritan persecution in England (1620–1648) and abuses of jury trial in Restoration England (1660–1688). The years immediately prior to the War for Independence heightened American interest in procedural protections, and many state constitutions contained guarantees similar to those finally included in the *Bill of Rights amendments.


The United States Supreme Court can trace its institutional development far into the history of Anglo-American law, and its functions parallel those of earlier judicial bodies in England, in the British empire, in the early American colonies and states, and in the Articles of Confederation government. At the same time the historical antecedents of the Court suggest that it is very much the product of the American historical experience, both within specific states and colonies, and also in the broader scope of imperial relations.

See also history of the court: establishment of the union.

Julius Goebel, Jr., History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (1971). S. C. F. Milsom, Historical Foundations of the Common Law (1969). Theodore F.T. Plucknett, A Concise History of the Common Law (1969). Joseph H. Smith, Appeals to the Privy Council from the Colonial Plantations (1950).

Herbert A. Johnson