By the time of the Constitutional Convention in 1787, the delegates had several state models to guide their choices about whether to create a national judiciary and, if so, what its structure and powers should be. Those choices also were informed by experience under the Articles of Confederation and previous proposals for a national judiciary.
In 1773, Benjamin Franklin called on the colonies to form a Continental Congress to present a united front against the Crown’s increasingly strict rule of its North American settlements. Until the British put a blockade around the Port of Boston, his calls went unheeded. In 1774, twelve of the thirteen colonies sent delegates to the First Continental Congress in Philadelphia. A year later, in November 1775, George Washington advocated creation of the nation’s first judiciary, a Prize Court to determine whether ships had been lawfully captured or seized. He wrote to the delegates,
Should not a court be established by authority of Congress, to take cognizance of prizes made by the Continental vessels? Whatever the mode is which they are pleased to adopt, there is an absolute necessity of its being speedily determined on.
Congress took no action for almost a year. Then it proposed that trials in prize cases should be commenced in colonial courts, with an appeal allowed to the Congress. Many colonies decided on trial by jury and, with significant reservations, agreed to permit Congress to hear appeals. It was not until 1780, however, that Congress established a three-judge court of appeals in prize cases. The national appellate court was ineffectual, because it depended on state enforcement of its judgments, and states were loath to permit enforcement of property rights acquired through appeals to the national court.
In 1777, the Continental Congress sent Articles of Confederation to the states for ratification. A formal confederation of states was believed appropriate to give Congress authority to conduct the Revolutionary War, engage as a nation with other nations, settle territories, and enter into treaties with Indian tribes. The Articles were not ratified until 1781, as states jealously guarded their individual sovereignty even in the face of the war for Independence.
The Articles contained no provision for a national judiciary, a nod both to state sovereignty and to the existence of well-established state judiciaries to which citizens of each state had developed considerable loyalty. Congress sat as a “final court for disputes between states”, and it had express power to appoint temporary courts in a very limited set of circumstances: “the trial of pirates and crimes committed on the high seas” and “for appeals in all cases of captures.” The Articles prohibited members of Congress from sitting as judges on the temporary courts. Moreover, the Articles provided for no enforcement of judicial decisions beyond lodging judgments with Congress.