The Judiciary

The development of the judiciary during the colonial period has been treated in an earlier section of this bibliography, and researchers should him there for an extensive list of appropriate works. Of relevance to the state's constitutional history are the sections on the Fundamental Orders, the Charter of 1662, and the Constitution of 1818. There is a listing of sources for biographical sketches of lawyers and judges in the" Biographical Directories" section, below. See also biographies of Raymond E. Baldwin, Simeon E. Baldwin, Homer Cummings Oliver Ellsworth, Samuel Huntington, William Samuel Johnson, Ephrain Kirby, Roger Ludlow, William M. Maltbie, Tapping Reeve, and Roger Sherman.

There are some bibliographical aids that serious scholars will find helpful. In addition to Flaherty's article cited above, see:

Bysiewicz, Shirley R. Sources of Connecticut Law. Boston, Butterworth Legal Publishers, 1987. This excellent compilation of all published sources in Connecticut law is written by a lawyer for lawyers. However, it includes very useful short sketches of Connecticut Constitutional, Judicial and Legislative history. Every scholar working the fields of constitutional or legal history should be familiar with the lists of sources compiled here.

Connecticut State Library, History and Genealogy Division "Records of the Judicial Department Court Records in the Connecticut State Library, 1636-1945." A mimeographed pamphlet (l977) available from the Library. It includes an excellent bibliography, which lists, among other items, useful typescripts found only at the Stare Library.

Jeffrey, William, Jr. "Early New England Court Records--A Bibliography of Published Materials." American Journal of Legal History 1(1957): 119-47.

Knox Virginia "Connecticut Judicia1 History, Court Development, and Biographies of Prominent Jurists from the Close of the Colonial Period through the 19th Century." A typescript report (1956) at the Connecticut State Library.

Prager, Herta, and Price, William M. "A Bibliography on the History of the Courts of the Thirteen Original States, Maine, Ohio, and Vermont" American Journal of Legal History 1(1957)336-62.

Legislative supremacy has been a strong tradition in Connecticut and even though separation of powers was decreed in the Constitution of 1818 (Article II), the General Assembly remained paramount. This point is made in Maver Osborn et al v. Zoning Board of Appeals of the city of Stamford 11 ConnSup489 (1943). The Court’s opinion included a very long historical discussion of the matter, which is printed as John A. Cornell, "Power of Connecticut Legislature Over Courts," Connecticut Bar Journal 17(April 1943)2:123-66.

The Court knows how to take care of itself, however, and over the years has accumulated considerable authority by its own judicial pronouncements. That long story is fold by Ralph Frederick Bischoff in "The Theory of Separation of Powers as Practiced and Judicially Recognized in the State of Connecticut" a thesis written at Harvard in 1931 under Felix Frankfurter. Bischoff, a Wesleyan professor, wrote in nearly impenetrable dithyrambs, such as "If there is a mythical or on the other hand a non-chimerical separation of powers in the polity of the state of Connecticut now or in the past its disquisition could only properly be excoriated by the presentation of at least an epitomized and laconic account of general constitutional factors in the life and theory of government of the people of Connecticut" (p. 1) He wasn't kidding! But the paper traces the Court's opinions by which judges garnered their present power--largely in the nineteenth century--and is therefore very useful. There is a photostat of the typescript at the State Library. Apparently Richard S. Kay did not read Bischoff: In "The Rule-Making Authority and Separation of Powers in Connecticut," Connecticut Law Review 8(Fall, 1975)1:1-43, Kay says that it was not until the 1890s that the Court began to make inroads on legislative authority. There is much historical material in Kay's piece.

The Connecticut Supreme Court of Errors has often been more conservative than Federal courts. In "The Connecticut Supreme Court -- On Becoming Supreme Again," Connecticut Bar Journal 52(February, 1978) 1:45-60, Wesley W. Horton, the successful complainant in the school financing case, Horton v. Meskill (1977), discusses recent tendencies of Connecticut courts to get left behind national trends, but shows that they once were important in articulating principles that became nationally significant. The Horton case, says Horton, marks a more courageous and independent turn.

There are general treatments of the development of the court system since the Colonial period in the following works:

Day, Thomas. Reports of Cases.... Hartford: George Goodwin and Sons, 1817. This is volume I of what became the official Connecticut Reports. Day describes the development of the court system from the beginning to 1817. (pp. iii-xxx) The series has been reprinted in its entirety from Kirby's Reports (1789), which begin in 1784, to the current issue, and is available from the Commission on Legal Publications in East Hartford. See also Edwin Surrency, "Law Reports."

Dickenson, Edwin. "Judicial System of Connecticut History," in West’s Connecticut Digest vol. I. Boston: Boston Law Book Company, 1951.

Hamersley, William. "Connecticut-The Origin of her Courts and Laws." In The New England States edited by William L Davis. Boston, 1897, 11:472-98. A dry but thorough chronological account of the development of the court system to 1818. There is attention to Legal practice, the common Law, separation of the judiciary from the other branches, and the like.

Hewitt, Harrison. "The Administration of Justice in Connecticut." In Norris Galpin Osborn, History of Connecticut in Monograph Form New York: States History Company, 1925. III:1-250. The author was corporation counsel for the City of New Haven. Chapters deal with the whole sweep from Ludlow to 1925 and have titles like "The Lawyer in the Life of the State," "Legal Education," and "Constitutional Revision since 1800." It is the next best thing to Loomis and Calhoun.

Loomis, Dwight, and Cathoun, J. Gilbert The Judicial and Civil History of Connecticut. Boston: The Boston History Company, 1895. This has been the standard source. It is exhaustive and authoritative, as far as it goes in time. Included are biographical sketches of over a thousand nineteenth-century Connecticut lawyers. Obviously the subject needs an update.

Other works dealing with the judiciary:

Baldwin, S. E. "The Connecticut Supreme Court of Errors." In The Supreme Court of the States and Provinces of North America. Edited by Clark Bell. New York: Medico-Legal Journal, 1895. Vol. I, Series 5, pp· 1-19.

Blake, James Kingsley. "System of Probate Courts in Connecticut with Some Suggestions for its Improvement" Yale Law Journal 15(1906)131+.

Clark Charles E., and Clark, Elias. "Court Integration in Connecticut A Case Study of Steps in Judicial Reform, 1927-1950." Yale Law Journal 59(December, 1950).

Cleaveland, Livingston W.; Hewett, Harrison; and Clark Charles Edward. Probate Law and Practice of Connecticut. New York Banks Law Publishing Co., 1915.  There is a history of the probate court in Appendix II, pages 917-23.

Daggett, Leonard M. "Supreme Court of Connecticut" Green Bag 2(1890)425-.

Dunn, Richard A. "Legislative Development of the Juvenile Court System in Connecticut" Paper no. 47 (1971) of the Office of Legislative Research of the Connecticut General Assembly.

MacDonald, Herbert S. "An Obituary Note on the Connecticut Justice of the Peace" Connecticut Bar Journal 35(December, 1961)4:411 31. This is an excellent discussion going back to medieval England but focusing on the twentieth century. It concludes in 1961, when the office of j.p., in Connecticut was stripped of its judicial functions.

MacKenzie, Ruth. "Connecticut Justice and Mercy." Connecticut Bar Journal 39(0ctober, 1965). See under “Witchcraft.”

Maltbie, William M. "The Supreme Court of Errors." Connecticut Bar Journal 26(December, 1952)4:357-72. An excellent piece: traces history and describes structure and procedure.

Mars, David, and Kort, Fred. Administration of Justice in Connecticut, 1638-1957. Storrs: Institute of Public Service, 1957. A useful survey in 137 pages.

Mignone, A F."A Colonial Court Today: Connecticut’s Probate Court System, 1639-1951." American Bar Association Journal 37(May, 1951).

Nahum, Milton, and Schatz, Louis M. "The Grand Jury in Connecticut" Connecticut Bar Journal 5(April, 1951)2:111-47. A full survey, with English precedents, of the grand jurors in Connecticut from 1643 to 1930, but with heavy emphasis on the system as it existed when these two Hartford lawyers wrote the piece.

State Bar Association of Connecticut "Choosing the Twelve: The Selection of Connecticut Jurors Since 1744." Connecticut Bar Journal 22(December, 1948). See also Michael P. Koskoff and Beverly J. Hodgson, "Jury Selection: Everybody into the Pool. The Case for Supplementing the Voter List" Connecticut Bar Journal 52(December, 1978)6, an advocacy piece directed at a contemporary problem, but with seven pages on the history of juries in Connecticut.