Introduction to the Federal Judiciary

Law and Courts in the American Colonies

Corporate and Proprietary Charters

Significant differences among the American colonies included unique social, geographic, economic and religious conditions.  Those differences would play a major role in the development of the law and legal system of each colony and, eventually, the law of each state.  Nonetheless, all colonies traced their original powers to the Crown.  Each colony operated under a charter, or royal grant of authority.  Charters were of essentially two kinds: corporation (or business) and proprietary (authority from the Crown given to one or two particular individuals).  

The original charters to Virginia and Massachusetts were examples of corporation charters: Officers and stockholders were required to hold regular company meetings.  They also were responsible for deciding how the colony was operated and for satisfying the colony’s financial responsibilities to the Crown.  Pennsylvania, by contrast, was organized as a proprietary colony under authority granted to William Penn.  Maryland was organized as a proprietary colony under authority granted to Lord Cecelius Calvert.  Proprietary charters gave the proprietors virtually all the powers the Crown itself had over the colony.  Proprietors frequently were personal friends of the monarch with duties to protect the monarch’s North American interests.

Despite differences in their powers under their charters, holders of both corporation and proprietary grants had to find ways to lure settlers.  Over the course of the many years before Independence, some typical governing elements emerged.  Some of those elements included the promise of greater local self-governance to settlers than they had as English subjects in the home country.  

Structure of Colonial Government & Judiciary

Each colony had a governor (appointed by the corporation or the Crown), an advisory council appointed by the Crown or corporation, and an elected assembly.  Most colonies developed a bicameral assembly, modeled on the English Parliament, to assure the representation of different interests, particularly differences in property ownership.  Governors typically had extensive powers, including veto power over colonial legislation.  All colonies developed complex court systems modeled after English courts but adapted those courts to unique American circumstances.  Among gubernatorial powers were appointing judges, justices of the peace, and local sheriffs.  

Colonial judiciaries usually were tiered systems, with justices of the peace at the lowest level, appointed by the governor to resolve small, civil disputes. Above the justices of the peace were county courts responsible for most civil cases involving claims of monetary damage up to a certain amount and the trial of crimes not serious enough to warrant the death penalty.  In some colonies, juries in county courts played an important role in both deciding the facts and determining at least the local law of the colony.  In others, jurors’ roles were more constrained.  The top court of each colony usually consisted of the governor and his council, although in some colonies the governor appointed a group of judges to serve as the top trial court while the governor and council served as a court of appeals. In some colonies, the governor and council also were responsible for administering equity.  Moreover, in some colonies, judges also held legislative and executive offices.  Some cases—particularly those involving trade and finance–could be further appealed to the Privy Council, a group of senior members of Parliament who advised the Crown.

Colonial Adaptation of the English Courts

Local courts in the colonies often served as units of local government as well as judicial bodies.  Frequently they were staffed by men who were not trained in the law. In addition to resolving disputes, they issued professional and business licenses (for example, to physicians, lawyers, merchants, ferry operators and peddlers).  They regulated apprenticeships.  They established weights and measures.  They inspected goods offered for sale.  They insured that harmful pests and sick animals were destroyed.  They oversaw the housing and education of orphans and the poor (sometimes in conjunction with local churches).  They let contracts and oversaw the building of roads and bridges.  And they assessed and collected local taxes.  

In sum, colonists adapted the English system of courts and justice to the unique setting of each of the colonies.  Known and established courts, not always separate from legislative and executive branches, became embedded in the governance of each colony.