existed from time immemorial and
which, according to the colonists, needed
no royal or parliamentary act to bring
them into existence. These courts were
deemed fundamental parts of the com-
mon law system because they were the
source of the common law. For the
colonies they were the functional equiv-
alents of the King's Bench or the Com-
mon Bench, Exchequer, etc., and the
extent of their power was deemed to be
practically co-extensive with the powers
of their English counterparts. Courts of
last resort were considered, then, as inte-
gral parts of the common law. When
state constitutions were first being writ-
ten, the above theory was in mind, and
where the common law was most com-
pletely absorbed in the constitution and
in practice, judges were able and cor-
rect in continuing to act as they had
always acted. One state, New York,
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omitted completely a provision setting
up the judiciary, regarding the court as
an existing part of the common law of
England received into the constitution
of the new state. Thus, the new judges
continued to issue writs in aid of their
jurisdiction freely, as their colonial and
English predecessors had done. Only the
source of authority for the writ changed,
the people being substituted for the
king.
RECOMMENDATIONS
If it is desirable that courts be vested
with the power to issue original writs
in aid of their appellate jurisdiction,
such authority should, to avoid differing
interpretations, be expressly stated. This
is especially necessary where a deletion
of the common-law reception statute
(the common law being the present
source, by implication, of the power to
issue original writs) is contemplated.
193
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