Historic Roots of the Judicial Branch

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Historic Roots of the Judicial Branch

The federal judiciary is the branch of government that holds trials and decides cases under the nation's laws. The main part of the federal judiciary has three kinds of courts: district courts, courts of appeals, and the U.S. Supreme Court.

Overview of the federal judiciary

Federal district courts are trial courts. Trial courts are where judges and juries hear and decide civil and criminal cases. A civil case is a dispute between private parties, or a noncriminal dispute between a private party and the government. Criminal cases involve violations of federal criminal law.

District court judges apply congressional laws and agency regulations in federal trials. In jury trials, the judge instructs the jury on the applicable law. After hearing all the evidence by listening to witnesses and seeing documents, the jury decides who wins the case based on the applicable law.

Sometimes judges decide cases without juries. These are called bench trials. In bench trials, the judge determines the facts after hearing the evidence and then decides who wins based on the applicable law. Judges and juries are supposed to apply the nation's laws fairly to all people.

Courts of appeals are one level above district courts in the federal system. If a party loses a case in district court, he or she can appeal the case to a court of appeals. The court of appeals reviews the case to make sure the judge or jury did not make a serious mistake. A court of appeals can either affirm, or agree with, the result in the district court, or reverse it, sending the case back to the district court for further proceedings.

The U.S. Supreme Court is the highest court in the federal judicial system. Parties who lose in the courts of appeals can ask the U.S. Supreme Court to review their case. If it decides to review a case, the Supreme Court can either affirm or reverse the result in the circuit court of appeals. Just like the courts of appeals, the Supreme Court's job is to make sure judges in the lower courts do not make serious mistakes.

Multiple Appeals in Schiavo Case

A well-known recent case is a good example of the appeals process. In the late 1990s, there arose a dispute over whether to remove life-support from a Florida woman named Terri Schiavo (1963–2005). She collapsed in 1990 after her heart stopped beating temporarily due to a chemical imbalance in her body. This deprived her brain of blood, sending her into a coma. Some doctors believe Terri Schiavo lacked consciousness completely after the collapse. After she remained in the coma for several years, her husband, Michael Schiavo, sought to remove artificial life support, saying that his wife had told him that she would not want to remain alive in a vegetative state. After seven years of litigation—during which time Terri Schiavo's feeding tube was removed and reinserted twice—Michael Schiavo got an order from a state court to remove her life support in 2005. Her feeding tube was removed on March 18, 2005.

Terri Schiavo's parents, Robert and Mary Schindler, wanted their daughter to remain on life support. They said she laughed, cried, and tried to speak with them when they visited her in the hospice where she lived. After the case attracted national attention, Congress passed a bill specifically giving the Federal District Court for the Middle District of Florida power to review the state court's order. President George W. Bush (1946–; served 2001–) signed the bill into law just after 1:00 am on Monday, March 21, 2005. That same day, the Schindlers filed a lawsuit in federal court. The first thing they asked was for the court to prevent the state court order from being used to remove life support until the federal court had time to hear and decide the whole case.

U.S. district judge James D. Whittemore (1952–) denied that request, so the Schindlers appealed to the U.S. Court of Appeals for the Eleventh Circuit. A three-judge panel denied the appeal in a 2–1 decision. The court said the parents could not get the temporary relief for two reasons. First, the law passed by Congress did not give the court power to issue such temporary relief. Second, under normal federal law, parties can only get temporary relief if they are likely to win the case in the end. The court said the parents were not likely to win in the end, so they could not get temporary relief.

On March 23, the parents asked the U.S. Supreme Court to review the case, but the next day the Court announced it would not. At that point, the Schindlers filed a second complaint with the federal district court, alleging that their daughter's Fourteenth Amendment right to life was violated. The following day, district judge Whittemore denied the Schindlers' second motion; an appeal to the Court of Appeals also failed. Additional state and federal appeals were unsuccessful. On March 31, 2005, Terri Schiavo died.

The federal judiciary has roots in the Roman Republic and Empire, the British Empire, American colonial courts, British supervision of colonial law, and American state courts. It also has roots in the national courts under the Continental Congress and the Articles of Confederation, which were the frameworks for American government from 1775 to 1788.

The Roman Republic and Empire

The Roman Republic and Empire were centered around the city of Rome from 509 bce until the latter half of the fifth century ce. The Republic, which ended with the creation of the Empire in 27 bce, had a government that was republican for the free men of society. In a republic, people control their government through elected leaders. Many legal systems and political structures of the Republic and Empire were forerunners of modern government.

Natural law

Marcus Tullius Cicero (106 bce–43 bce) was a Roman statesman, lawyer, and scholar who lived during the waning days of the Republic. Cicero wrote about natural law, which is the idea that human laws must conform to a higher law—one of nature, often believed to come from God. As reprinted in American Law and Politics, Cicero said:

There is in fact a true law—namely, right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong....It will not lay down one rule at Rome and another at Athens, nor will it be one rule to-day and another to-morrow. But there will be one law, eternal and unchangeable, binding at all times upon all peoples; and there will be, as it were, one common master and ruler of men, namely God, who is the author of this law, its interpreter, and its sponsor.

The notion that law should apply equally to all people affected the development of the federal judicial system. Federal judges take an oath to apply the law equally and fairly, without regard to the identity of the parties. Juries are supposed to do the same.

Roman codes

The Roman Republic first recorded its laws around 450 bce. According to tradition, common citizens, called plebeians, insisted that all citizens had a right to know the laws. Government officials organized and wrote the laws onto twelve tablets, probably made of bronze, called the Law of the Twelve Tables. The tablets hung in the Roman Forum, which was a place for public meetings, court proceedings, and other public events.

Nine hundred years later, Emperor Justinian I (483–565) of the Byzantine Empire had lawyers and scholars compile the Corpus Juris Civilis, or Body of Civil Law. It was an enormous collection and organization of the laws and legal opinions from emperors and jurists of the Roman Empire. Roman law from the Corpus affected the development of legal systems in Europe after the Dark Ages (476–1000), which eventually affected the development of American legal systems.

Roman courts

Courts in the Roman period were not like courts in the American judiciary. There was no separate judicial branch of government. Instead, judicial duties were spread among various government officials. Praetors, for example, were Roman Republic officials who commanded armies and also had judicial duties in civil cases. Quaestors helped the leaders of the Republic with financial matters and also had criminal justice responsibilities.

During the Roman Republic, civil cases followed a formulary system. Under this system, parties to a case appeared before a praetor to get a "formula." A formula was a written definition of the legal dispute between the parties. Praetors drafted formulas after hearing what the legal dispute was about. Similarly, in the American judiciary, parties prepare pleadings, which are legal documents that define the nature of their dispute.

Once they had a formula, parties in the Roman Republic selected an arbitrator, called a judex. A judex was a private individual who heard the evidence and decided the case. In the American federal judiciary, judges and juries have that responsibility.

The British Empire

The thirteen colonies that formed the United States in 1776 were British colonies. Naturally, then, the American judicial system drew heavily from the British legal system for its structures and processes.

British courts

Like the Roman Empire, England did not have a separate judicial system prior to the Middle Ages (500 ce–1350 ce). By the time of the Norman dynasty (1066–1154), England had a loose system of local courts, manorial courts, and royal courts. Local courts held trials in small political subdivisions, such as counties. Feudal lords who owned large pieces of land had manorial courts, which heard local cases involving people on those lands. Royal courts in Westminster, England, heard local disputes at the English seat of government.

During the Norman dynasty, English kings traveled around the country, hearing cases that affected the interests of the monarch, or ruler. In the twelfth and thirteenth centuries, England established three permanent courts in Westminster for serving this function. They were called superior common law courts because they had more power than the local and manorial courts.

One of the superior common law courts was the Court of Exchequer, which heard cases affecting England's revenues. Another was the Court of Common Pleas, which heard civil cases between private parties under the common law. (The common law is judicial rules governing relations between private parties.) The third superior common law court was the Court of Queen's Bench (or King's Bench), which heard criminal cases plus civil cases that affected the interests of the monarch.

In addition to hearing criminal and civil cases, the Court of Queen's Bench had power to review cases from the local and manorial courts and from the Court of Exchequer and Court of Common Pleas. This made the Court of Queen's Bench a high appellate court similar to the U.S. Supreme Court.

British law

The law applied by the superior common law courts influenced the development of law in America. It included common law, equity, criminal law, and statutory law.

Common law is a system of rules governing the relationships between private parties. For example, when two people make a contract to buy and sell goods or services, the common law of contracts provides rules for their relationship. If one person injures another, the common law of tort, or wrongful acts, provides rules for how the injured person can recover from the offender. Judges in England developed the common law on a case-by-case basis in the Middle Ages and modern times.

Equity was a special area of law that grew out of the common law. Under the common law, a person could not sue for a wrong unless it fit neatly into one of the categories of the common law. For example, if a person agreed to sell an item and then decided not to honor the contract, the common law awarded damages to the buyer but could not force the seller to part with the item.

Equity arose as a system for doing justice in private cases where the common law did not provide an adequate remedy. Equity cases in Great Britain were heard in courts of equity by people called chancellors. In 1873, England combined common law and equity courts into one court. Federal courts in America went through a similar period of handling common law and equity cases separately before combining them into one court.

Criminal law developed out of the common law during the Middle Ages. It was based on the notion that a person who did something harmful to the community had offended the monarch's peace. As a result, the crown of England gradually took on increased responsibility for enforcing criminal laws.

Statutory law is law enacted by a legislature. In England, the legislature is Parliament. In the United States, the federal courts apply statutory law enacted by Congress.

American colonial courts

American colonial governments had various forms, but they tended to include a governor, a council, and an assembly. British monarchs appointed governors to serve as the executive heads of the colonies. The council was a legislative body that represented the interests of Great Britain or of the British company that owned the colony. Assemblies were legislatures that the free men of the colonies elected for representing their interests in government.

Colonies did not have separate judicial systems. Instead, the governors and councils had judicial powers in addition to their executive and legislative functions. Initially, they sat as trial courts to hear and decide cases, and they sat as appellate courts to review decisions from lower courts.

Lower courts grew slowly in the colonies beginning in the seventeenth century. Justices of the peace heard minor criminal violations and disputes. Governors set up local courts to hear specific cases that arose in the colonies. Over time, legislatures established permanent local trial courts, often at the county level of government, to hear civil and criminal cases. The common law of England governed most civil cases. The legislatures also set up chancery courts to hear equity cases.

As permanent local courts grew, governors and councils held fewer trials and heard more appeals. Some colonies eventually set up permanent courts of appeals, relieving governors and councils of some of their appellate duties. The American judicial system follows this practice of holding trials in lower courts and hearing appeals in higher courts.

British supervision of colonial law

Great Britain tried to control the colonies through various laws, courts, and government offices. Legal cases in the colonies often ended with review by the governor and council sitting as a supreme court. If the result in these cases was against the law of England, parties could appeal to the Privy Council, a council that worked for the monarch in England. The Privy Council could modify the results in cases from the colonies. This made the Privy Council similar to the U.S. Supreme Court, which can review cases from the highest courts of the states.

In the latter half of the seventeenth century, Parliament passed a series of Navigation Acts. The acts made rules for the shipment and taxation of goods going to and coming from England and its colonies. To enforce the acts against the colonists, Great Britain set up a system of vice admiralty courts (relating to laws of the sea) in 1696. This system resembled the federal district courts that America would establish for enforcement of federal laws.

Colonial governments also faced review in the British Board of Trade. Parliament established the Board of Trade in 1696 to oversee Great Britain's commercial interests worldwide. The Board of Trade had power to review and strike down colonial laws that violated British law. In this way, the Board of Trade resembled the U.S. Supreme Court, which strikes down federal and state laws that violate the U.S. Constitution. Displeasure with the Board of Trade was one of the many things that led the colonists to declare independence from Great Britain in 1776.

American state laws and courts

Upon signing the Declaration of Independence in 1776, the thirteen colonies became states in a new country. Many states adopted constitutions to define the framework for their governments. Many also adopted declarations of rights, which defined citizens' rights. (See sidebar, "History of Religious Freedom.")

Prior to independence, the colonies operated under English and colonial laws. As new states, they had to decide what old laws would continue to apply. Beginning in May 1776, Virginia and ten other states passed reception provisions. A reception provision explained in general terms what parts of the common law, English statutes, and colonial statutes would continue to apply in a newly formed state. Reception provisions stated that old laws and statutes that violated a state's new constitution or declaration of rights could not continue to apply in the state.

State legislatures did not have the time to review all old laws and statutes to determine which violated their new constitutions and declarations. State courts ended up making these decisions on a case-by-case basis. A party to a case, for example, might ask the court to enforce a particular old law, and the other party might argue that the old law violated the new constitution or declaration of rights. The court could strike down the old law if it agreed that the law violated the state's reception provision.

History of Religious Freedom

Federal courts are an important place for protecting religious freedom in America. Religious freedom is the freedom to practice the religion of your choice or no religion at all. The First Amendment of the U.S. Constitution makes it illegal for Congress to pass laws "prohibiting the free exercise of religion." States must allow religious freedom, too, under the Fourteenth Amendment.

Religious freedom in America grew from a history of religious persecution and intolerance. In seventeenth-century England, people were required to worship in the Church of England. People who practiced a different kind of Christianity, such as Puritans and Quakers, faced punishment. Many of them left England for the American colonies to find religious freedom.

The American colonies, however, did not have religious freedom. The powerful Christian sects in the New World persecuted members of the weaker sects. In a letter in 1772 (as reprinted in The Founders' Constitution), Pennsylvania politician Benjamin Franklin (1706–1790) wrote about Christian persecution in New England:

The primitive Christians thought persecution extremely wrong in the Pagans, but practised it on one another. The first Protestants of the Church of England, blamed persecution in the Roman church, but practised it against the Puritans: these found it wrong in the Bishops [of the Church of England], but fell into the same practice themselves both here and in New England.

In Notes on the State of Virginia (also reprinted in The Founders' Constitution), Thomas Jefferson (1743–1826) wrote of similar persecution in the Virginia colony:

The poor Quakers were flying from persecution in England. They cast their eyes on these new countries as asylums [protectors] of civil and religious freedom; but they found them free only for the reigning sect. Several acts of the Virginia assembly of 1659, 1662, and 1693, had made it penal [worthy of punishment] in parents to refuse to have their children baptized; had prohibited the unlawful assembling of Quakers; had made it penal for any master of a vessel to bring a Quaker into the state; had ordered those already here, and such as should come thereafter, to be imprisoned till they should abjure [give up] the country; provided a milder punishment for their first and second return, but death for their third; had inhibited [prevented] all persons from suffering [allowing] their meetings in or near their houses, entertaining them individually, or disposing of [distributing] books which supported their tenets [beliefs].

Documents from the seventeenth century show how the colonists made religion part of their governments. On June 4, 1639, the free men of the colony of New Haven met to set up a government "as might be most pleasing unto God" (as reprinted in The Founders' Constitution). They agreed that the Old and New Testaments in the Christian Bible would be the basis for their laws.

Massachusetts colony had strict laws concerning Christianity in 1641. As reprinted in The Founders' Constitution, one law said, "If any man after legall conviction shall have or worship any other god, but the lord god, he shall be put to death." Another said, "If any person shall Blaspheme [disrespect] the name of god, the father, Sonne or Holie Ghost, with direct, expresse, presumptuous or high handed blasphemie, or shall curse god in the like manner, he shall be put to death."

The idea of religious tolerance slowly began to grow in the colonies by the middle of the eighteenth century. Tolerance means allowing people to pursue religion in their own way. In Religious Tolerance, published in 1766 (as reprinted in The Founders' Constitution), Virginia politician Patrick Henry (1736–1799) wrote, "A general toleration of Religion appears to me the best means of peopling our country. . . ." The Virginia Declaration of Rights of 1776 said all men were entitled to the free exercise of religion, though it added that all men had a duty "to practice Christian forbearance, love, and charity, toward each other."

Nine years later, Virginia adopted an Act for Establishing Religious Freedom. The law made it illegal to force someone to worship a particular way or to punish someone for his or her religion. In his Autobiography in 1821 (as reprinted in The Founders' Constitution), Jefferson wrote that the law was meant to extend religious freedom even beyond the bounds of Christianity:

[A] singular proposition proved that its protection was meant to be universal. Where the preamble declares, that [religious] coercion is a departure from the plan of the holy author of our religion, an amendment was proposed, by inserting the word "Jesus Christ," so that it should read, "a departure from the plan of Jesus Christ, the holy author of our religion;" the insertion was rejected by a great majority, in proof that they meant to comprehend, within the mantle of its protection, the Jew and the Gentile, the Christian and Mahometan [Muslim], the Hindoo [Hindu], and Infidel [nonbeliever] of every denomination.

Striking down old laws under reception provisions was an exercise of judicial review. Judicial review is the practice of nullifying, or invalidating, laws that violate a society's fundamental laws, such as the constitution or declaration of rights. Judicial review was not too controversial when state courts struck down old English laws and statutes. It became very controversial, however, when they began to strike down new laws passed by state legislatures.

Over time, however, judicial review became an accepted feature of American jurisprudence, or system of law. In 1803, judicial review became a permanent part of the federal judiciary. That year, the U.S. Supreme Court announced its power to strike down congressional laws that violate the U.S. Constitution.

Courts under the Continental Congress and the Articles of Confederation

In 1774, as relations between Great Britain and the American colonies approached the breaking point, the colonies sent delegates to the First Continental Congress. It was the first American government with power to try to resolve the conflict with Great Britain. When the American Revolution (1775–83) erupted, the Second Continental Congress managed the war effort for the colonies.

The Continental Congress continued as the government of America after the colonies declared independence in 1776. The following year, delegates from the American states drafted the Articles of Confederation. It was the blueprint for American government from 1781 until the adoption of the U.S. Constitution in 1788. Congress continued to be the primary body of American government until the Articles were composed.

There was no judicial branch of government under the Continental Congress or the Articles of Confederation. Congress, however, established a commission and a court of appeals that had judicial powers eventually held by the federal judiciary under the U.S. Constitution.

Commission for land claims

In 1781, when the Articles of Confederation took effect, the land west of the thirteen states was considered the American frontier. Despite the presence of Native Americans on much of this land, American states claimed parts of the land as their own, and claims by two states sometimes overlapped.

The Articles of Confederation set up an elaborate procedure for settling such claims. If the two states could not agree on who should sit on a panel for deciding the case, Congress appointed three men from each of the thirteen states. The states with the dispute then took turns eliminating people from the panel of thirty-nine until thirteen remained. Finally, Congress drew seven to nine names from the remaining thirteen to serve on a commission to hear and decide the case.

Only one case got to trial before a commission under this procedure—a dispute between Pennsylvania and Connecticut. When America adopted the U.S. Constitution in 1788, the federal judiciary received power to resolve "controversies between two or more States" under Article III, Section 2.

The Sloop Active

One of the most famous prize cases during the American Revolution involved the Sloop Active. As told by Edward Dumbauld in "The Case of the Mutinous Mariner" on the Supreme Court Historical Society's Web site, the case began in 1778 when the British captured a Connecticut fisherman named Gideon Olmsted (1749–1845) and three of his crew members. In Jamaica, the British put Olmsted and his crew on the Sloop Active, a vessel bound for New York with supplies for the British army.

On the way to New York, Olmsted and his men mutinied, taking control of the vessel by locking the British below deck. When the vessel neared Little Egg Harbor at Cape May, New Jersey, a vessel owned by Pennsylvania captured the Active. The captain of the Pennsylvania vessel, Thomas Houston, took control away from Olmsted and brought the Active to Philadelphia.

In Philadelphia, Houston filed a case in admiralty court to claim the Sloop Active as a prize. Olmsted and his crew filed their own claim, arguing that the whole prize belonged to them because they had captured the vessel from the British before Houston arrived. A jury decided that Olmsted and his crew deserved only one-fourth of the prize.

Olmstead appealed the case to Congress's commission of appeals in prize cases. On December 15, 1778, the commission reversed the decision of the Pennsylvania court and awarded the whole prize to Olmsted and his men.

According to Erwin Surrency in History of the Federal Courts, Judge George Ross (1730–1779) of the Pennsylvania court of admiralty was furious with the commission's decision and refused to comply with it. Olmsted spent the next thirty years in lawsuits trying to recover what the commission of appeals said he deserved. He did not get his money until 1809.

The Court of Appeals in prize cases

Prize cases were cases in which a private vessel captured a merchant ship from an enemy nation. Nations gave private vessels the power to do this by issuing written authority in documents called letters of marque. When a private vessel captured an enemy ship, it brought the ship into port, where a court of admiralty determined if the capture was valid. If so, the ship was sold and the captors received a share of the proceeds.

In November 1775, General George Washington (1732–1799), who was leading the American army in the Revolutionary War, sent a letter to Congress from Massachusetts. Washington asked Congress to set up an admiralty court for deciding cases involving ships that received letters of marque from Congress. Congress decided state admiralty courts should hear such cases, but agreed to hear prize appeals from the state courts.

When Congress received its first prize appeal, it referred the case to a commission for decision. Commissions appointed by Congress heard all admiralty appeals until 1780. That year, Congress created a Court of Appeals, the first official American court. It decided eleven appeals over the next few years.

States sometimes refused to enforce the decisions of the Court of Appeals. The men who wrote the Constitution in 1787 kept this in mind. The Constitution gave Congress the power to grant letters of marque, gave the federal judiciary power to hear admiralty cases, and provided that "the judges in every state shall be bound" by the Constitution and laws of the United States.

For More Information


Goebel, Julius, Jr. Antecedents and Beginnings to 1801. Vol. I. New York: Macmillan, 1971.

Kelly, Alfred H., and Winfred A. Harbison. The American Constitution: Its Origins and Development. 5th ed. New York: W. W. Norton & Co., 1976.

Kurland, Philip B., and Ralph Lerner. The Founders' Constitution. 5 vols. Indianapolis: Liberty Fund, 1987.

McClenaghan, William A. Magruder's American Government 2003. Needham, MA: Prentice Hall School Group, 2002.

Shelley, Mack C., II. American Government and Politics Today. 2004–2005 ed. Belmont, CA: Wadsworth Publishing, 2003.

Surrency, Erwin C. History of the Federal Courts. 2nd ed. Dobbs Ferry, NY: Oceana Publications, 2002.

Volkomer, Walter E. American Government. 8th ed. Upper Saddle River, NJ: Prentice Hall, 1998.

Young, Roland. American Law and Politics: The Creation of Public Order. New York: Harper & Row, 1967.


Dumbauld, Edward. "The Case of the Mutinous Mariner." The Supreme Court Historical Society.http://www.supremecourthistory.org/04_library/subs_volumes/04_c02_h.html (accessed on March 23, 2005).

Hudson, David L., Jr. "Schiavo Law Prompts Constitutional Questions." ABA Journal E-report. http://www.abanet.org/journal/ereport/m25schiavo.html (accessed on March 28, 2005).

"Judge Nixes Delay in Coma Case." CBSnews.com.http://www.cbsnews.com/stories/2005/03/10/national/main679430.shtml (accessed on March 28, 2005).

"Key Events in the Case of Theresa Marie Schiavo." University of Miami Ethics Programs.http://www.miami.edu/ethics2/schiavo/timeline.htm (accessed on March 28, 2005).

Supreme Court of the United States.http://www.supremecourtus.gov (accessed on February 18, 2005).

U.S. Courts: The Federal Judiciary.http://www.uscourts.gov (accessed on March 23, 2005).

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Historic Roots of the Judicial Branch

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Historic Roots of the Judicial Branch