When the Revolution broke out it also became important in helping to explain the practice in prize courts. These were set up (or existing common law courts invested with admiralty jurisdiction) in all the States, and American privateers gave them not a little business. In order to secure uniformity of decision in matters so directly affecting our foreign relations, the Continental Congress claimed the right to exercise appellate functions, through a standing committee of its members, and in 1780 organized a formal court for the purpose, styled "The Court of Appeals in Cases of Capture." Three judges were appointed and provided with a register and seal. They held terms at Hartford, New York, Philadelphia and Richmond during the next six years. On an average about ten cases were disposed of annually, and the decisions were generally conceded to have been fair and well supported by the rules of admiralty and the law of nations.[Footnote: See Jameson, "Essays on the Constitutional History of the United States," I; J. C. Bancroft Davis, "Federal Courts Prior to the Adoption of the Constitution," 131 United States Reports, Appendix, XIX.]

The influence of French ideas was strong in shaping constructive work in American politics, as the colonies passed into States; but aside from the separation of the judicial department from the executive and legislative it had little effect upon the courts until the opening of the nineteenth century. Then the principles of the Roman law, particularly as presented and illustrated by the French jurists, were seized upon by Kent and Story, and served greatly to expand and enrich our jurisprudence.[Footnote: "Memoirs and Letters of James Kent," 117.]

The course of events which has been sketched left certain ideas in regard to the position and powers of the judiciary with respect to the other branches of the government firmly imbedded in the American mind. These may be thus summarized:

Judges were to proceed according to established rules, so far as established rules might exist.

They were to proceed in analogy to established rules as to points which no established rule might cover.

They were to look to the common law and political institutions of England to determine what rules were established, as to points not covered by local usage or legislation.

Local usage or legislation might, within certain limits, depart from the common law and even from the political institutions of England.

There were limits to such departure, and a colonial statute or judgment which transgressed them could be annulled or set aside by a higher authority.

This higher authority might be judicial or political, or one which shared both judicial and political functions.

* * * * *

CHAPTER II

THE SEPARATION OF THE JUDICIAL POWER FROM THE
LEGISLATIVE AND EXECUTIVE IN AMERICAN
CONSTITUTIONS

From the colonial system of legislatures by which all the powers of government were at times exercised to the modern American State, with its professed division of them into three parts, and assignment of each to a distinct department, was a long step.