Introduction to the Federal Judiciary

Abuses of Judicial Process & Powers

Montesquieu’s contention that judging should not be left to fixed tribunals fell on deaf ears to Americans who were long accustomed to the complex judicial tribunals that had evolved in England and that were being replicated in the American colonies with relevant adaptations.  But increasingly Americans did heed his warning that liberty is at risk if the judiciary power is united with legislative or executive powers.  Indeed, by the end of the Seven Years War in 1763, colonists were complaining to the Crown about both legislative and executive abuses of what had come to be understood as judicial processes and powers.  Some examples:

  • The use of writs of assistance (or general warrants) throughout the colonies to track down those who smuggled products such as sugar, molasses and tea to avoid paying British taxes.  Parliament had authorized the use of writs of assistance to permit law enforcement officials to search places and seize goods and people virtually indiscriminately.   
  • The practice of transferring smuggling cases from colonial courts to vice-admiralty courts presided over by Crown appointed judges with incentives to find parties guilty, thereby raising money for the Crown through the imposition of fines.
  • Abandoning the common law as the framework for trials in the colonies, substituting new standards enacted by Parliament to make convictions easier.
  • Shifting the burden from government prosecutors to prove guilt under the Navigation Acts to defendants to prove their innocence under those acts.
  • Taking away the powers of local, colonial juries to find facts and giving fact-finding powers to judges who were not impartial because they were appointed by the Crown or the Crown’s representatives in the colonies.    

Grievances Against the Crown

The Declaration of Independence

As the American Revolution neared, most colonies (with the notable exception of Rhode Island and Connecticut) were converted to Crown colonies, ruled by a governor appointed by the Crown.  By 1776, the list of grievances against the Crown (and, at least indirectly, Parliament) included specific objections related to courts and judging.  Among other things, the Declaration of Independence asserted,

  • “[The King] has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary Powers
  • He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries
  • For protecting [large bodies of armed troops], by mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States
  • For depriving us in many cases, of the benefits of Trial by Jury
  • For transporting us beyond Seas to be tried for pretended offences”