What was the “First” Appellate Court in the Colonial Americas?

By Michael Wein

With the coming New Year, reflection and reexamination on the past is natural, to understand and fully appreciate the challenges and hopes for the coming year. At least in Maryland, the history of “appeals” has not been the focus of determinate scholarly debate, internally, or in comparison to other jurisdictions.  For example, did you know that appellate courts in the Colonial Americas may have preexisted Thanksgiving, and that the first appellate court continues to be the subject of debate?

If this were the game show Jeopardy! and the “Answer” was “[t]his was the first appellate court established in the Western Hemisphere,” many people might instinctively say the United States Supreme Court.  However, it is certainly not the Supreme Court, as part of the U.S. Constitution, Congress’ 1789 Judiciary Act, and a first “session” with Justices in 1790.  Instead, the correct response choices include not only Massachusetts (including Plymouth and Massachusetts Bay colonies), but also Maryland, Virginia, and Pennsylvania in North America, and the Real Audiencia in Latin America.  These are all “colonial” appellate courts tracing to at least the 1600s, well-before the Supreme Court.  A brief description of each contender follows.

Partially to expedite discussion, what the respective state high courts each have concluded to be their “founding” date is treated as an admission and “earliest” date for that Court.

Maryland

Unlike Virginia, Pennsylvania, or Massachusetts, the age of the appellate courts through today’s Court of Appeals of Maryland is significantly debated and, in the words of Chief Judge Robert Murphy, in a preface for a bibliography of the Court’s history, with  “the actual age of the Court [being] debated over the years…it is hoped… [to] stimulate interest and promote scholarly research on this respected institutions’ experiences, contributions, and development.”[i]

We do know that our present Court of Appeals existed in 1776, as part of Maryland’s Constitution.  We also know an appellate court traces back in Maryland to at least the mid-1600s. The then-nascent province of Maryland established a system of oversight with a mixture of executive and judicial functions, including appellate jurisdiction, that mirrored the Common Law system of England.[ii]  “By the year 1638 the [Provincial] Governor [of Maryland], as Chief Justice, and the members of his council, as associate justices, had begun to hold at St. Mary’s a general court of the province, called at first the County Court, but after 1642 termed the Provincial Court.”[iii]  The authority of the Court issue preemptory common law writs of mandamus, among other appellate functions, similarly traces back to at least 1649, though it remains unclear the extent to which (1) if such appellate functions were continuously functioning and (2) the extent this early appellate court work is directly traceable to our present Court of Appeals, in part due to the gaps on “continuous” information.[iv]

Legislative authority for appeals in this State dates back to at least September of 1642, when the General Assembly passed the “Act on Judges”:

“[If] it be in the Provinciall Court, or (if it be in the County Court) the Comander and Commissioners of the County or the maior part of them (then present in Court) shalbe Judge in all causes (as aforesaid) not exceeding their Commission, so that after iudgem^t there be power of appeale to either partie to the Pro-vinciall Court. Provided that the Lieutenant Grail of the Prov: or any one of the Counsell, or the Comander of the County of Kent, or (in his absence) the next in Commission then being in the County, may determine & correct any offences w^ch are or may be determined & corrected by a Justice of Peace in England, any thing in this Act notwith-standing.

And if the votes of the Judges be sequall, that iudgem^t, shalbe entred w^ch is given by the cheife Judge in Commission. Provided that no Judge may exercise any act of Judicature in any cause or matter wherein himselfe is interessed as a party; nor before he have taken an oath to administer sequall iustice to all persons according to the Lawes of the Province, to the best of his skill and power & to delay nor deny to no man right or iustice.” [Emphasis Added][v]

Virginia

According to “Virginia Appellate Court history” (linked to the Virginia Judicial System’s webpage via the Supreme Court of Virginia Historical Advisory Committee), after Jamestown was founded in 1607, the local courts took effect in about 1624 and were made up of justices of the peace appointed by the colony governors.  It was in 1632, that “Quarter courts” took effect, which as the name implies, met quarterly, and involved the executive governor and governor’s council, acting also as judicial bodies, along with the county courts that were taking effect then as well.  In 1662, the Quarter courts began to adopt more formal rules, and became “General Courts.” Up until then, the lower legislative body, was permitted to hear “appeals” from decisions of the “General Courts.”[vi] This changed, according to the Virginia Appellate Court History and an article on the “General Court of Colonial Virginia” by Hugh Rankin, in 1682 when the system was re-organized, with the “General Court” instead of being trial level, was now designated to hear appeals from the county courts and very serious criminal matters, made up of the Governor acting as the presiding appellate judge, and Governor’s council, with a quorum of 5 necessary.

Pennsylvania

According to SCOPA REVIEW, a blog that monitors Pennsylvania’s high court, and proudly advertises itself as “Modern Coverage of America’s Oldest Court,”

“The Supreme Court of Pennsylvania calls itself the nation’s oldest appellate court, a claim of which I was dubious until I did the research. It appears the Court is being modest. It began as the Provincial Court in 1684, a full eight years before the Massachusetts Bay Colony created its high court. The Supreme Court of Pennsylvania appears to be the oldest court of any kind in the Western Hemisphere that is still in operation.”

The Supreme Court of Pennsylvania refers to itself as “the highest court in the Commonwealth and the oldest appellate court in the nation.”   The Court appears to rely on appellate courts that are “still in operation.” In a timeline provided on the Court’s website, it is stated that some appellate functions began in Pennsylvania in 1682, with what became the present Supreme Court of Pennsylvania beginning in 1684.

Massachusetts (including Plymouth and Massachusetts Bay Colonies)

According to the Massachusetts Supreme Judicial Court website,

“The Supreme Judicial Court, originally called the Superior Court of Judicature, was established in 1692 and is believed to be the oldest appellate court in continuous existence in the Western Hemisphere. After the adoption of the Massachusetts Constitution in 1780, the name of the Court was changed to the Supreme Judicial Court. The Court operates under the Massachusetts Constitution of 1780, the oldest, still functioning written constitution in the world.”  [Emphasis Added]

While the Massachusetts Supreme Court may have been preceded by eight years, as to any present Court first being established, by Pennsylvania’s high court, it should be noted that there were undoubtedly earlier appellate courts within the present territorial jurisdiction of Massachusetts, from the original Plymouth and Massachusetts Bay colonies. See The Massachusetts Body of Liberties, Adapted as Law by the General Court of the Commonwealth of Massachusetts Bay, 1641, in which Article 36 states:

“36.  It shall be the liberty of any man, cast condemned or sentenced in any cause in any inferior Court, to make their appeal to the Court of Assistants, provided they tender their appeal and put in security and prosecute it before the Court (Session) be ended wherein they were condemned, and within six days next ensuing put in good security before some Assistant to satisfy what his adversary shall recover against him, and if the cause be of a criminal nature, for his good behavior and appearance (at the Court).   And every man shall have liberty to complain to the General Court of any injustice done him at any Court of Assistants or other.” [Emphasis Added]

The Plymouth Colony was the earlier to be chartered as a colony in the Massachusetts, but it adopted the legal system structure established first by Massachusetts Bay, which began as early as the 1630s and no later than 1641.

Latin America and the Real Audiencias

The best answer as to the first appellate court in the Colonial Americas, may not trace to any colony originating from the present United States of America. In Latin America, there were a number of Real Audiencias (translated as “royal audiences”), established in the 1500s by Spain, including;

• Santo Domingo (modern Dominican Republic) (in 1511, effective in 1526), with jurisdiction over the Caribbean islands and the adjacent mainland;
• Mexico (in 1527), covering most of present Mexico;
• Panama (in 1538), covering most of Central America;
• Guadalajara  (in 1548), covering what is now northern Mexico;
• Santa Fe de Bogotá  (in 1548), overseeing most of modern Colombia;
• Charcas (in 1559), overseeing Upper Peru; and
• Quito, (in 1565), with jurisdiction over most of modern Ecuador, and the Peruvian Amazon.[vii]

Real Audiencias were formed and practiced as appellate courts, in some cases, almost a century before Jamestown and the Plymouth Rock colonies were founded.  They trace to related Audiencias formed by Spain in Europe in the late 1300s and 1400s.  When the “New World” began being seriously explored in the 1500s, it was Spain (and Portugal) that originally began founding colonies and provinces in South and Central America.  These were held together by a system of governance, which permitted the “local” court decisions of those colonies, to be reviewed and challenged by a more formal governing board with oversight and authority.   Below is a photograph of a written opinion from the Quito Audiencia, signed by then President Miguel de Ibarra and dated in 1607, which is merely one example of the type of formal appellate legal decision making:

Photo courtesy of Michael Wein.[viii]

Three Concluding Viewpoints on the “First” Appellate Court in the Colonial Americas

So there you have it.   The Supreme Court of the United States is far from the oldest appellate Court established in the New World/Western Hemisphere, but was established well after Spanish Colonial Courts, and English Provincial Colony Courts, with the “traces” of some of these Provincial Courts still in existence today, in the form of state high courts.

As to what is the “first” colonial appellate court, there appears to be three (3) ways to examine the answer.

The first is to view it from the first appellate court that was established in the colonies in the present United States under English colonial rule.  However, being fair as to an actual “system” that constitute rudimentary appeals within the United States, it appears the nod goes to the Massachusetts Bay colony, which is not the same as the present Massachusetts Court system, as both Massachusetts Bay and Plymouth Colonies were combined and reformed in 1692 by a royal charter into the present Court system in Massachusetts. Similarly, Virginia’s present Supreme Court, is traceable to Revolutionary War times in 1779, not the 1600s, though Virginia may have had an appellate court in existence in the early to mid 1600s, with the “Quarter Court” less formally established in 1632, before the 1641 establishment in the Massachusetts Bay colony.

The second viewpoint seems to have stimulated some playful competitiveness between Pennsylvania and Massachusetts, as to the oldest continuing appellate court system in the United States.  From the facts available, it appears Pennsylvania’s 1684 date has Massachusetts’ 1692 beat by 8 years, despite some quibbles on name changes existing in the Pennsylvania court.

However, a surprising asterisk exists on this second viewpoint.  If Maryland could establish that the Court of Appeals of Maryland, is traceable as “continuously” formed from the appellate law system as early as 1638, (and became more fully formed by 1642 and later 1649), then there could be a claimed stake to Maryland being the oldest existing appellate court in the United States.  While the issue presently remains subject to debate, Chief Judge Robert Murphy, in 1987, “hoped…[to] stimulate interest and promote scholarly research,”  on this potentially solvable riddle, and it remains respectfully worthy of further research. Similarly, Chief Judge Carroll Bond almost a hundred years ago, noted “there has been a tribunal of last resort in Maryland known as the Court of Appeals since the seventeenth century; but what was the beginning point in that century, and how far there has been a continuation of one and the same court through changes in the subsequent centuries—those are debatable questions.”[ix]  Thus, in accordance with two previous Chief Judges acknowledgement of the important debate,  I would suggest Maryland do something similar to that approved by the Supreme Court of Virginia, which established its “Historical Advisory Committee” to exhaustively examine the subject in that state.

Third, and surprisingly uncontroversial, what is truly the first appellate court in the colonial Americas? The answer appears to be the Real Audiencia of Santo Domingo, which by no later than 1526, exercised appellate judicial authority over the various colonies and provinces established in the Caribbean at that time, 81 years before Jamestown was founded in Virginia, and almost 100 years before the landing of Plymouth Rock by the Pilgrims on what began the English-based American colonies.

[i] See The Maryland Court of Appeals-A Bibliography of Its History, 1987 (Compiled by Michael S. Miller, Director, Maryland State Law Library). This Author thanks the Maryland State Archivist office for their assistance in some of the research for this article.

[ii] See Coke upon Littleton, 1628, pg. 108 (“Parliament is the highest and most honorable and absolute court of justice in England, consisting of the King, the Lords of Parliament, and the Commons.”)

[iii] The Court of Appeals of Maryland, A History, Bond, Carroll T. (Chief Judge of the Court), Baltimore, 1928, pg. 3.

[iv] See Wilson v. Simms, 380 Md. 206, 220 (2004) (“By 1638…the Governor and Council were sitting as a county court, which by 1642 was designated the Provincial Court. After the division of the legislature into upper and lower houses in 1649, the upper house (the Governor and Council) exercised the highest appellate authority in the province. But the Provincial Court became the chief court of the province, regarded as the local equivalent of the Court of King’s Bench. Like King’s Bench, it exercised both original and appellate jurisdiction.” (internal quotations omitted)); see also  “Court of Appeals – Origin & Functions,” Maryland Manual On-Line (“Functions of the Court of Appeals began in the colonial period. Then, the Upper House of Maryland’s Assembly consisted of the Governor and Council, who, in 1664, first reviewed writs of error appealing judgments of the Provincial Court. In 1694, the Governor and Council were authorized by statute to consider appeals from the Provincial Court (Chapter 18, Acts of 1694). The four-member court of Governor and Council first sat in May 1695 in Annapolis.”)

[v] Proceedings and Acts of the General Assembly January 1637/8 – September 1664, Archives of Maryland Online, 1:183.

[vi] Similar to the practice of the House of Lords in UK parliament, which until very recently in 2009, was considered the “court of last resort,” until that title was assumed by the Supreme Court of the United Kingdom.

[vii] Because these are basic background and geographic links not a significant source of debate within the context of this article, and not well known to the general viewing audience, Wikipedia (English edition) is used as a source in this rare instance. See “Real Audiencia,” Wikipedia, The Free Encyclopedia. Wikimedia Foundation, Inc., (last accessed, November 22, 2017). (“In their judicial function, an audiencia heard appeals from cases initially handled by justices of first instance, which could be, among others, guild courts, corregidores, and alcaldes ordinarios.  […] The audiencia also served as the court of first instance for crimes committed in the immediate jurisdiction of the city that served as the audiencia’s seat and any case involving crown officials. In criminal cases the audiencia was the court of final appeal….”)

[viii] It is my understanding that this particular Court decision, which is in my personal collection of old legal decisions, (written in early Spanish), describes a criminal conviction sentence being affirmed. However, please contact me at weinlaw@hotmail.com, should you be able to give a better and more accurate translation.

[ix]  The Court of Appeals of Maryland, A History, Bond, Carroll T. (Chief Judge of the Court), Baltimore, (1928), pg. 1.