The Supreme Court in United States History/The First Courts and the Circuits
CHAPTER ONE
THE FIRST COURT AND THE CIRCUITS
1789-1798
"It is perhaps not difficult to say which is the most arduous task, that of the Convention who framed the Constitution, or of the first Legislatures to whom it will appertain to mature and perfect so compound a system, to liquidate the meaning of all the parts, and adjust them to each other in a harmonious and consistent whole," said a Federalist pamphleteer in 1792;[1] and these words quaintly and accurately portrayed the task which was imposed upon the first Supreme Court, as well as upon the first Congress. That President Washington had a full comprehension of the responsibility which lay upon him in making the appointments to this first Court, and of the potent influence which the Court was to exercise upon the history of the country, was shown by his letter to his future Attorney-General, Edmund Randolph. "Impressed with a conviction that the true administration of justice is the firmest pillar of good government," he wrote, "I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system. Hence the selection of the fittest characters to expound the laws and dispense justice has been an invariable sub ject of my anxious concern."[2] Imbued with such belief in the high destiny of the tribunal, Washington had been considering possible candidates for appointment upon the Court, for some months before the passage of the Judiciary Act ; and the tests which he intended to apply to all appointments he had nobly set forth in a letter to Chancellor Livingston of New York, in the preceding May. "When I accepted of the important trust committed to my charge by my country," he had written, "I plainly foresaw that the part of my duty which obliged me to nominate persons to office would, in many instances, be the most irksome and unpleasing; for, however desirous I might be of giving a proof of my friendship, and whatever might be his expectations, grounded upon the amity which had subsisted between us, I was fully determined to keep myself free from every engagement that could embarrass me in discharging this part of my administration. I have therefore declined giving any decisive answer to the numerous applications which have been made to me; being resolved, whenever I am called upon to nominate persons for those offices which may be created, that I will do it with a sole view to the public good, and shall bring forward those who, upon every consideration and from the best information I can obtain, will in my judgment be most likely to answer that great end.*' And to Nathaniel Gorham, he had written: "The most delicate and in many instances the most unpleasing part of my administration will be the nomination to offices. . . . This consolation, however, will never quit me, that the interest of the American Union shall be the great object in view and that no means in my power shall be left untried to find out and bring forward such persons as have the best claims, upon every consideration are the most deserving and will be most likely to promote, this important end."[3]
On September 24, the day on which he affixed his signature to the Judiciary Act, Washington sent in to the Senate the names of his appointees to the Supreme Court of the United States constituted by that statute. Of all appointments to be made, that of Chief Justice of the United States was by far the most important and had given to the President the greatest concern. Rightly he felt that the man to head this first Court must be not only a great lawyer, but a great statesman, a great executive and a great leader as well. Many eminent names were presented to him. Among the earliest and probably the most illustrious as a jurist was that of James Wilson of Philadelphia, who, on April 21, 1789, addressed himself to Washington as an aspirant for the place in the following interesting letter:[4]
Friends of John Rutledge of South Carolina were insistent that his seniority and distinction in professional studies and his services to his country entitled him to the position. The name of Robert R. Livingston, the distinguished Chancellor of New York, was warmly urged, and his judicial career, as well as his service in bringing about the ratification of the Constitution in New York, warranted his appointment; but Livingston's aspirations fell afoul of the complicated situation in New York politics—that which John Adams in his old age used to term "the Devil's own incomprehensibles." For six months, a bitter fight had been waging between the faction headed by the Livingstons and Governor George Clinton (an Anti-Federalist) and the ultra-Federalists headed by Alexander Hamilton and General Philip Schuyler, over the choice of United States Senators; the two houses of the Legislature had split over the method of election and over the choice of Rufus King, who was favored by Hamilton; as a result, New York had been left unrepresented in the first session of the First Senate; this situation and Hamilton's antagonism rendered Livingston's appointment impossible.[5] John Jay, one of the leading expounders of the Constitution, then acting as Secretary of Foreign Affairs, and a close personal friend of Washington's, was said to have been offered the choice of retaining his position in the Cabinet or taking the Chief Justiceship.[6] That Alexander Hamilton might be offered the position was evidently gravely feared by some; for a citizen of Maryland wrote to Washington as to rumors "that the Chief will not be a native of America. … Nine tenths of the best friends to America will ever be averse to a foreign Judge", and he expressed the hope that Robert H. Harrison, the Chief Judge of Maryland, would be appointed—"the best man in the Union for the head of the Judiciary, best calculated to inspire confidence and love among our people … though from his retired habits not so well known throughout America as many men of high character who perhaps are not near so perfect … his virtues and character are not hidden from the impartial President of the United States."[7]
The President's decision finally fell upon John Jay of New York. "It is with singular pleasure that I address you as Chief Justice of the Supreme Court of the United States, for which office your commission is enclosed," wrote Washington. "In nominating you for the important station which you now fill, I not only acted in conformity to my best judgment, but I trust I did a grateful thing to the good citizens of these United States; and I have a full confidence that the love which you bear to our country, and a desire to promote the general happiness, will not suffer you to hesitate a moment to bring into action the talents, knowledge and integrity which are so necessary to be exercised at the head of that department which must be considered as the keystone of our political fabric."[8] While Jay was only in his forty-fourth year, and while his practice as a lawyer had been of short duration and his only previous judicial service had been two years (from 1775 to 1777) as Chief Justice of New York, nevertheless, the distinction, the sagacity and the powers of leadership which had characterized his military, political and diplomatic career since 1774, marked him as preëminently qualified for the responsibilities of the high post to which he was now called.[9]
In the selection of the remaining five Judges, Washington was confronted with an even more difficult problem, since the three States of Virginia, Pennsylvania and South Carolina presented an unusual number of qualified candidates. From Virginia, the names most prominently mentioned were Edmund Pendleton, George Wythe, Arthur Lee and John Blair. Of his perplexity in choosing, Washington wrote to James Madison:[10] "My solicitude for drawing the first characters of the Union into the Judiciary is such that my cogitations on the subject last night, after I parted with you have almost determined me, as well for the reason just mentioned, as to silence the clamors, or more properly soften the disappointment of smaller characters, to nominate Mr. Blair and Colonel Pendleton as Associate and District Judge, and Mr. Edmund Randolph for the Attorney General, trusting to their acceptance. Mr. Randolph I would prefer in this character to any person I am acquainted with of not superior abilities, from habits of intimacy with him. Mr. Pendleton could not, I fear, discharge, and in that case I am sure would not undertake, the duties of an Associate under the present form of the Act. But he may be able to fulfill those of the District. The salary, I believe, is greater than what he now has; and he would see, or it might be explained to him, the reason of his being preferred to the District Court rather than to the Supreme Court; though I have no objection to nominating him to the latter, if it is conceived that his health is competent, and his mental faculties are unimpaired by age."[11] John Blair, whom Washington finally selected, was a man of fifty-seven years of age, and had served ten years on the State Courts of Virginia as Chief Justice of the Court of Appeals and as a Judge of the High Court of Chancery.
From Massachusetts, it had been the general expectation that John Lowell, who had served as Judge of the Court of Appeals under the old Confederation, would receive the appointment; and he had been warmly indorsed by Washington's intimate personal friends. General Benjamin Lincoln had written: "I consider, my dear General, that not only the happiness of the people under the new government, but that the very existence of it depends, in a great measure, upon the capacity and ability of those who may be employed in the Judiciary. … The common voice of the people here points out Mr. Lowell as a gentleman well qualified to fill one of the seats upon the Superior Court. … It is an office which, to fill with honour and dignity, requires an honest heart, a clear head and a perfect knowledge of law in its extensive relation."[12] When it became known that Washington was considering passing over Lowell and appointing William Cushing, the Chief Justice of the Massachusetts Supreme Judicial Court, a strong and interesting protest was made by Christopher Gore in a letter to Rufus King of New York:[13]
In spite of these arguments, Washington decided to appoint Cushing, who had served for nine years as Chief Justice in Massachusetts and was then fifty-seven years old—the oldest man chosen on the new Court.
In Pennsylvania, the President's field of choice was wide, for eminent lawyers were numerous. Thomas McKean, who had been Chief Justice of that State for twelve years, was strongly urged by many and had early filed an application for appointment, writing that he had "an ambition to share in Your Excellency's Administration" and that he hoped it would not "be deemed indelicate in me to give a short account of myself and my studies":[14]
It was fortunate for the successful working of the new Federal Government that McKean's wishes were not gratified; for he soon became a radical State-Rights advocate and proclaimed from the State Bench that the Constitution was "a league or treaty made by the individual States as one party and all the States as another"; and that in case of a difference of opinion as to the construction of the Constitution "there was no provision in the Constitution that the Judges of the Supreme Court of the United States shall control and be conclusive." This was the doctrine upheld by Calhoun in later years, but far removed from the constitutional views of Jay and Marshall. It is probable that Washington, however, decided against McKean more by reason of his defects of temper than of opinion.[15] Moreover, it was unquestionably the fact that the best qualified lawyer in Pennsylvania, as well as the statesman most familiar with the proceedings of the Federal Convention, was James Wilson, a native of Scotland, forty-seven years of age, who had practiced at the Philadelphia Bar for eleven years, and who had been an aspirant for the Chief Justiceship; and Washington found no difficulty in deciding upon his appointment.
From Maryland, Washington appointed his former military private secretary and close personal friend, Robert Hanson Harrison, a man of forty-four years, who had been Chief Judge of the General Court of Maryland for eight years. That he entertained a more personal interest in this nomination than in any other was shown by the fact that he addressed to Harrison (and to no other Judge except Rutledge) a personal letter, in the course of which he said: "Your friends and your fellow citizens, anxious for the respect of the Court to which you are appointed, will be happy to learn your acceptance, and no one among them will be more so than myself."[16] Five days after his confirmation, Harrison was chosen Chancellor of Maryland, and preferring that post to the laborious position on the Federal Court decided to decline the latter, in spite of Washington's urgent request to the contrary, and notwithstanding an urgent letter from his old comrade-in-arms, Alexander Hamilton, who wrote:[17]
In Harrison's place, Washington appointed James Iredell of North Carolina, who was commissioned February 10, 1790, and took his seat on the Bench at the second Term of the Court in August, 1790. Iredell was only thirty-eight years old and had been Attorney-General of his State.
From South Carolina, the President hesitated between the appointment of Charles Cotesworth Pinckney, John Rutledge and Edward Rutledge. William H. Drayton was also urged upon him. Finally his choice fell on John Rutledge, a man of fifty years of age, who had been a former Governor of the State and a Judge of the State Court of Chancery for the past six years.[18] Of the warmth of feeling which Washington had for his appointee, evidence was given in a personal letter.[19] "Regarding the due administration of justice as the strongest cement of good government, I have considered the first organization of the Judicial Department as essential to the happiness of our citizens and to the stability of our political system. Under this impression, it has been an invariable object of anxious solicitude with me to select the fittest characters to expound the laws and dispense justice. This sentiment, sir, has overruled in my mind the opinion of some of your friends, when they suggested that you might not accept an appointment on the Supreme Bench of the United States. The hesitation which those opinions produced was but momentary, when I reflected on the confidence which your former services had established in the public mind and when I exercised my own belief of your dispositions still further to sacrifice to the good of your country. In any event, I concluded that I should discharge the duty which I owe to the public by nominating to this important office a person whom I judged best qualified to execute its functions, and you will allow me to repeat the wish that I may have the pleasure to hear of your acceptance of the appointment." Because of the insistence of this letter, Rutledge consented to accept, although both he and his friends still retained the view that he ought to have been offered the Chief Justiceship.[20]
All of these six members of the new Court were men in the prime of life, the oldest being fifty-seven and the youngest thirty-eight; all but two had previous judicial experience; and of the general acceptability of these appointments, there was much evidence in contemporary letters. Ralph Izard of Charleston wrote to Edward Rutledge, stating that he had just returned from the Senate where the Judges "had been approved", and that they had been "chosen from among the most eminent and distinguished characters in America, and I do not believe that any Judiciary in the world is better filled." John Brown, a Congressman from Kentucky, after reciting the nominations, wrote: "Our public affairs in every department go on so smoothly and with such propriety that I entertain sanguine hopes that the present Government will answer all the reasonable expectation of its friends. Judgment, impartiality and decision are conspicuous in every transaction of the President, and from the appointments which he has made there is every reason to expect that the departments will be conducted with justice and ability."[21] Moreover, with great wisdom, the President had deemed it advisable to call to the high function of interpreting the Constitution men who had been instrumental in making it; for Rutledge, Wilson and Blair had been members of the Federal Convention of 1787, and signers of the Constitution; while Jay, Iredell, Wilson and Cushing had been leaders in their respective State Conventions in aiding ratification of the Constitution.[22] Of the high dignity and importance of the positions which these men were to fill, Washington's full comprehension was again shown in the formal official letter which he addressed to each. "I experience peculiar pleasure in giving you notice of your appointment to the office of an Associate Judge in the Supreme Court of the United States," he wrote. "Considering the judicial system as the chief pillar upon which our National Government must rest, I have thought it my duty to nominate, for the high offices in that department, such men as I conceived would give dignity and lustre to our National character, and I flatter myself that the love which you bear to our country and a desire to promote the general happiness will lead you to a ready acceptance of the enclosed commission which is accompanied with such laws as have passed relative to your office."[23]
On Monday, February 1, 1790, the day appointed for its organization, the Supreme Court of the United States met in New York, in the Royal Exchange, a building located at the foot of Broad Street. "The Court Room at the Exchange was uncommonly crowded," said the newspapers of the day. "The Chief Justice and other Judges of the Supreme Court of this State, the Federal Judge for the District of New York, the Mayor and Recorder of New York, the Marshal of the District of New York, the Sheriff and many other officers, and a great number of the gentlemen of the Bar attended on the occasion."[24] Since, however, in spite of the importance of the event, only three of the Judges were present. Jay, Wilson and Cushing, the Court adjourned to the next day at one o'clock, the Judges attending a dinner given that evening by the President. On February 2, Judge Blair and Attorney-General Edmund Randolph, having arrived from Virginia, the Court was organized (as stated in the newspapers) "at the Hall of the Exchange, the Marshal of New York (Mr. Smith) attended, and Mr. McKesson officiated as clerk. The jury from the District Court attended; some of the members of Congress and a number of respectable citizens also. As no business appeared to require immediate notice, the Court was adjourned."[25] The published record of the ceremony (with its quaint penalty of imprisonment in case silence should be broken during the reading of the commissions) was as follows:[26]
Ordered that Richard Wenman be and he is hereby appointed Crier of the Court.
The Court adjourned until tomorrow at one o'clock in the afternoon.At this first session, the Judges were attired in robes, probably of black and red, since a contemporary Senator described them as "party-colored";[27] and it is evident that considerable impression was made upon the public by this costume, for a Philadelphia newspaper, a little later, remarked upon the appearance of the Judges "in their robes of Justice, the elegance, gravity and neatness of which were the subject of remark and approbation with every spectator."[28]
On Wednesday, February 3, the Court met again, chose John Tucker of Massachusetts as its Clerk, and passed an order as to the form of the seal of the various
^ William Allen Butler, as quoted in the accoimt of the Centennial Cd^ratioii of the organisation of the Federal Judiciary, in 134 U. S. Appendix, 712, stated that Jay wore "an ample robe of black silk with salmon colored facings*', whidi according to family tradition was the gown of a Doctor of Laws of the University of Dublin which had conferred a degree upon Jay ; and Butler stated that ** the Associate Justices wore the ordinary black robe which has since come into vogue as the vestment of all the members of the Court." This latter statement appears to be erroneous; for Senator Mason, speaking in the Senate in 1802 (7^ Cong^ IH 8e$s., Jime 13, 1802, 60), referred to : '* A State upon her knees before six ven- erable Judges decorated in party-colored robes, as ours formerly were, or arrayed in more solemn black such as they have lately assumed.*'
G. C. Hazelton, Jr., in Hiitory of the National CapUol (1897), 142, 154, quotes Benjamin Harrison (the elder) as saying that the question of the Court attire was a subject of discussion by public men of the day, and that "Jefferson was against any needless official apparel, but if the gown was to carry, he said : *For Heaven's sake, discard the monstrous wig which makes the English Judges look like rata peeping through bunches of oakum!' Hamilton was for the English wig with the English gown. Burr was for the English gown but against the inverted wool sack termed a wig! The English gown was taken and the wig left." Henry Flanders in his Lioei cf the Chief Justices (1858), I, 37, speaks of the excitement caused by the appearance of Judge Cushing in his old-fashioned judicial wig on his arrival in New York, and that "returning to his lodgings, he sent for a peruke- maker and obtained a more fashionable covering for his head. He never again wore the professional wig." An English traveler, writing of Washington in 1828, stated, on the other hand, that the Judges of the Supreme Court "com- menced with wigs and scarlet robes, but soon discarded them as inconvenient." Notions of the Americans (1850), by J. P. Cooper, II, 48.
- See New York DaOy Advertiser, Feb. 21, 1792; QcoMe qf the Utiited ^aUs,
F^. 11, 1792; Pnmdence Qautte (B. I.). Feb. U. 1792. Federal Courts. On Friday, February 5, the first practitioners before its Bar were admitted as counselors—Elisha Boudinot of New Jersey, Thomas Hartly of Pennsylvania, and Richard Harrison of New York, and Rules of Court were adopted as to the form of writs, and as to the admission of counselors and attorneys.[29] On Monday, Tuesday, and Wednesday, February 8, 9, and 10, the only business transacted was the admission of sixteen further counselors and seven attorneys.[30] Of these nineteen counselors admitted at this first Term, it is interesting to note that two were Senators and nine were Representatives present in New York attending the First Congress ; of the remaining eight non-officials, six were lawyers from New York, and two from New Jersey. Three weeks later, on March 4, 1790, Arthur Lee of Virginia, who had been unable to qualify under the rule and had been admitted by special order of the Court, "took the oaths before the Chief Justice of the United States, requisite to carry into execution the special order of the Supreme Court for admitting him as counselor."[31] Of this first Federal Bar, a contemporary paper said: "Every friend to America must be highly gratified when he peruses the long list of eminent and worthy characters who have come forward as practitioners at the Federal Bar, where the most important rights of Man must, in time, be discussed and determined upon, as well those of Nations, as of individuals. Happy country! Whose Judges rendered independent—and selected for their wisdom and virtue—constitute so firm a barrier against tyranny and usurpation on the one hand, and fraud and licentiousness on the other."[32] An interesting reminder, however, of the fact that the prominence of the legal profession in bringing about the adoption of the Constitution had aligned the Anti-Federalist Party in hostility to lawyers was seen in the criticism by its newspaper organs of the number of Members of Congress admitted to the Federal Bar." It is alarming to find so many Members of Congress sworn into the Federal Court at its first sitting in New York. The question then is whether it is proper that Congress should consist of so large a proportion of Members who are sworn attomies in the Federal Courts ; or whether it is prudent to trust men to enact laws who are practising on them in another department. Let common sense answer. If Congress does consist of practising Attorneys, the laws enacted may, in a great measure, depend on the particular causes such individuals may have to manage in the Judiciary ; this being the case, the property of the people may in a few years become the sport of Law-Makers acting in the capacity of interested attorneys."[33]
The session having lasted ten days and no case being on its docket for argument, the Court adjourned finally on February 10, 1790, "to the time and place appointed by law"; and in the evening of the same day, the Grand Jury of the District Court, **gave a very elegant entertainment to the Chief, Associate and District Judges, the Attorney-General, and the officers of the Supreme and District Courts at Fraunce's Tavern, in Courtlandt Street. The liberality displayed on this occasion and the good order and harmony which presided gave particular satisfaction to the respectable guests."[34] Among the thirteen toasts drunk by the " respectable guests " were the following: " The National Judiciary" and "The Constitution of our Country, may it prove the solid fabrick of liberty, prosperity and glory." That the novel experiment of a National Judiciary had awakened great interest throughout the country was significantly shown by the fact that the New York and the Philadelphia newspapers described the proceedings of this first session of the Court more fully than any other event connected with the new Government; and their accounts were reproduced in the leading papers of all the States.[35]
The second Term of the Court was held in New York on Monday, August 2, 1790, at the Exchange. The commission of James Iredell of North Carolina (who had been appointed Judge on the last day of the preceding Term, on the resignation of Robert H. Harrison of Maryland) was read, and he qualified. There being no cases ready, the Court adjourned until Tuesday, when after having admitted as counselors Richard Bassett and John Vining of Delaware it adjourned for the Term.[36] It is interesting to note that at the very outset of the new Government, Chief Justice Jay evinced that comprehension of the essential functions of the judicial power of the Court and of its duty never to express its judicial opinion except in a case litigated between parties in due judicial course, which is a fundamental principle of the American frame of government. The question was presented to him in November, 1790, by Alexander Hamilton, the Secretary of the Treasury, whether all the branches of the Government ought not to interfere and to assert their opposition to sentiments, which had recently proceeded from the Virginia Legislature and which seemed to Hamilton destructive of the principles of the government under the Constitution. At this time, excitement ran high, both in the Congress and in the Nation, over the projected Federal legislation for assumption of State debts and redemption of the public debt. The Virginia House of Representatives had passed Resolutions terming the latter bill as "dangerous to the rights and subversive of the interest of the people and demands the marked disapproval of the General Government", and denouncing the former bill as "repugnant to the Constitution of the United States, as it goes to the exercise of a power not expressly granted to the General Government." "This is the first symptom, " wrote Hamilton, "of a spirit which must either be killed or it will kill the Constitution of the United States. I send the Resolutions to you that it may be considered what ought to be done. Ought not the collective weight of the different parts of the Government to be employed in exploding the principles they contain? This question arises out of sudden and imdigested thought."[37] Jay replied in cool and restrained language that he considered it inadvisable to take any action. ** Having no apprehension of such measures, what was to be done appeared to me to be a question of some diflBculty as well as importance ; to treat them as very important might render them more so than I think they are. . . . The assumption will do its own work; it will justify itself and not want advocates. Every indecent inter- ference of State Assemblies will diminish their influence ; the National Government has only to do what is right, and, if possible, be silent. If compelled to speak, it should be in few words, strongly evinced of temper, dignity and self-respect."
The next Term of the Court was held in Philadelphia in February, 1791, at the new City Hall which stood east of Independence Hall.^ Again the docket pre- sented no cases for argument; but the session was enlivened by a singular episode in connection with the large number of lawyers who presented themselves for admission to practice. The local Bar had apparently assumed that, since Judge Wilson himself was a Phil- adelphia lawyer and knew them all personally, no insistence would be made by the Court upon the production of certificates of character. To the sur- prise, mortification and anger of many of the learned
1 In the Gazette of the United States, Feb. 4, 1792, it is said that the Court "will meet at the new Court-House in this city." Of these halls, an interesting contemporary description was given by an English traveler. " The State House is appropriated to the use of the legislative bodies of that State. Attached to this edifice are the Congress and the City Halls. In the former, the Congress of the United States meet to transact business. The room allotted to the representatives of the lower house is about sixty feet in length and fitted up in the plainest manner. At one end of it is a gallery, open to every person that chuses to enter it ; the stair- case leading to which runs directly from the public street. The Senate Chamber is in the story above this, and it is furnished and fitted up in a much superior style to that of the Lower House. In the city hall, the Courts of Justice are held, the Supreme Court of the United States, as well as that of the State of Pennsylvania and those of the city." Travels through the States of North America during the Years 1796, 1796, and 1797 (1807), by Isaac Weld, Jr. counselors, Judge Wilson was unwilling to vouch for them; and the Chief Justice stated that the Court had decided not to accept the voucher of one lawyer for another. The flurry which ensued was vividly depicted in a letter written at the time.[38] "The Supreme Court of the United States opened on Monday, the 7th inst., in which Chief Justice Jay and Judges Cushing, Wilson, and Iredell sat. A number of the Gentlemen of the Bar of this City attended at their lodgings and escorted them to the State House. The Court opened but there was no business. The Gentlemen of the Bar applied for admission but a Rule of the Court stood in their way, which made it neces- sary, previously to their admission, that they had practiced in the Supreme Court of the State three years, and that they had good moral characters, and possessed good legal abilities. I obviated the first objection by my Certificate of their Admission in the Supreme Court. The Court took then as evidence of the latter qualities that Mr. Wilcocks was Recorder of the City; Mr. Bradford was Attorney General of the State ; Mr. Lewis was Attorney for the District ; Mr. Fisher was vouched for by Mr. (Justice) Wilson, with apparent reluctance as against his wishes to do it for anyone; Mr. Sergeant proposed that as Mr. Fisher was admitted, he should vouch for the rest of the Bar, but the Chief Justice said that they had determined that one lawyer should not vouch for another. However, he remarked that Mr. Sergeant had been Attorney General, which was an evidence of his good character and legal ability, and therefore he was admitted. Mr. IngersoU was then proposed, and Mr. Randolph stated to the Court that he had been a Member of Congress and of the Federal Convention. Chief Justice Jay observed that he might be a very good Member of Congress and yet no lawyer. Mr. Ingersoll then formally withdrew his application for admission till another period. After a little while, Mr. Wilson said that it was from no difficulty about either that Gentleman's character or legal ability, for everybody knew that if he said anything about him, he must have said that he was one of the most eminent at the Bar. He was admitted without any renewal of his application, and Mr. Jay also paid him some compliments. So many difficulties occurring, the rest of the Bar declined bringing forward their applications, having expected that from Mr. Wilson's knowledge of them, everything might have been made easy. The Court then adjourned till one o'clock, when, the proper certificates having been provided, all who applied were admitted. The Bar thought they might have been treated with a little more delicacy by a Gentleman who knew them all intimately. However, I do not think that he meant any offence to them, but merely adopted the Rule of discriminating between the deserving and undeserving of the profession. It seems he might have acted with more fortitude if he had declared his good opinion of some and called for certificates only as to such whom he did not know particularly; or if he had positively refused to declare his opinion respecting any of the profession without written evidence." Among those admitted at this time who were then, or afterwards became, eminent leaders of the Bar, were William Lewis, William Bradford, Jr., Alexander Wilcocks, Miers Fisher, Jonathan Dickinson Sergeant, Jared Ingersoll, Edward Tilghman, William Rawle, Alexander J. Dallas, Peter S. Duponceau, Benjamin Chew, Moses Levy, Thomas Leaming, Jr., and Jasper Moylan, all of Pennsylvania; James Monroe of Virginia; Samuel Johnston of North Carolina, and Luther Martin of Maryland.^
At the August Term in 1791, Samuel Bayard was appointed Clerk in place of Tucker, and five counsel- ors were qualified.^ On the second day of the Term, the case of West v. Barnes, 2 Dallas, 401, was called for argument ; but "" David L. Barnes of Massachusetts, one of the defendants in error and counselor of the Court (just admitted) rose and stated to the Court that the proceedings in the above cause could not be properly before the Court*', the writ of error having issued from the office of the Clerk of the Circuit Court and not from the office of the Clerk of the Supreme Court.' The Court dismissed the case on this ground. Had the case been argued, it is probable that at that very early date the Court would have been called upon to consider the extent of its powers, relative to the constitutionality of State statutes ; for the legal tender paper money law of Rhode Island was involved in the case — the same law which the Judges of that State had held invalid in Trevett v. Weeden in 1787.*
Before the next Term, it became necessary for the President to fill a second vacancy ; for John Rutledge of South Carolina, who had never attended a session of the Court and had only served on Circuit, now
^ Twenty-two oounaelon and one attorney were qualified from Pennsylvania; one counselor from Maryland; one counselor and one attorney from Virginia; one counselor from North Carolina.
' David Leonard Barnes of Massachusetts; and Charles Swift, Thomas Smith, Jacob R. Howell, John D. Coze of Pennsylvania. Freeman'M Journal, Aug. 3, 1791, said that the Court adjourned after "several motions respecting suits de- pending on the Court were made."
- See accounts of this case in the contemporary newspapers, Dvnlap*M American Daily AdoertUer, Aug. 18, 1791 ; Columbian CenHnd, Aug. 18, 1791; Massachusetts Spy, Aug. 25, 1791, which are fuller than the account given in Dalloi Reports.
^ See case of David L, Barnes el al. v. William West et al,, in original fites of the Circuit Court in the United States District Court at Providence, R. L resigned to accept the position of Chief Justice of his State. Although there was a distinguished Judge of the United States District Court in Georgia, Nathaniel Pendleton, who was an active candidate for the pro- motion to the Supreme Court and who was warmly indorsed by the veteran Edmund Pendleton of Virginia, a close personal friend of Washington, the President determined to make the appointment from South Carolina. ^ Accordingly, he adopted the singular expe- dient of addressing a letter jointly to Charles Cotesworth Pinckney and to Edward Rutledge (both of that State), asking if either of them would accept the position. Upon receipt of a reply from both stating that they thought that they could be of more service to the Greneral Government and to their State by remaining in the State Legislature, Washington, on October 31, 1791, appointed Thomas Johnson, a former Governor of Maryland, and then Judge of the United States District Court. As Johnson was fifty-nine years of age — the oldest man on this first Court — he only consented to accept, after assurances from Chief Justice Jay and from the President that the Circuit Court system requiring arduous labor and long traveling by the Judges would probably be altered by the next Congress.*
At the February Term in 1792, there was still no case ready for argument, and the Court adjourned, after hearing a motion in Oswald v. Stale of New York to compel an appearance on the part of the State.
While it thus appears that during these first three years of its existence the Court had practically no business to transact, its Judges found themselves
1 See letters of March 5, July 18, 1791; Calendar qf ApplieaHofu (1901), by Gaillard Hunt.
- Washington X, letters of May 24, Aug. 7, 1791. Johnson had been given appointment, Aug. 5, 1791 ; be was confirmed by the Senate, Nov. 7.
fully employed on the other arduous duties required of them under the Judiciary Act. By the provisions of that statute, the country had been divided into three Circuits (the Eastern, Middle, and Southern), to each of which two Supreme Court Judges were permanently assigned and directed to hold Court twice a year in each District, in company with the District Judges. The framers of the Act had expected this function of the Judges to be of great value in keeping the Federal Judiciary in touch with the local communities; and at the very outset of the Court's organization, Washington had written to the Chief Justice and to each of the Judges, expressing his views of the high importance of the manner of the performance of their duties and saying that he had "always been persuaded that the stability and success of the National Government, and consequently the happiness of the people of the United States, would depend in a considerable degree on the interpretation and execution of its laws. In my opinion, therefore, it is important that the Judiciary system should not only be independent in its operations, but as perfect as possible in its formation. As you are about to conmience your first Circuit, and many things may occur in such an unexplored field which it could be useful should be known, I think it proper to acquaint you, that it will be agreeable to me to receive such information and remarks on this subject, as you shall from time to time judge expedient to conmiunicate."[39] It was, in fact, almost entirely through their contact with the Judges sitting in these Circuit Courts that the people of the country became acquainted with this new institution, the Federal Judiciary; and it was largely through the charges to the Grand Jury made by these Judges that the funda mental principles of the new Constitution and Govern- ment and the provisions of the Federal statutes and definition of the new Federal criminal legislation be- came known to the people. As was said by a contem- porary newspaper : "Among the more vigorous produc- tion of the American pen, may be enumerated the various charges delivered by the Judges of the United States at the opening of their respective Courts. In these useful addresses to the jury, we not only discern sound legal information conveyed in a style at once popular and condensed, but much political and consti- tutional knowledge. The Chief Justice of the United States has the high power of giving men much and most essential information in a style the very model of clearness and dignity." ^ No better exposition
1 Farmer'* W*^ Museum (Walpote, N. H.), June 17» 1799. The Qrcuit Court for the District of Omnecticut was opened at New Haven, Tlraraday, April ^, 1790, by Jay, Gushing, and District Judge Richard Law:
- 'His Honor the Chief Justice delivered an eloquent and pertinent charge. . . .
The session continued until Saturday during which the several civil causes were heard and sundry rules and regulations adopted for future proceedings. The good sense and candor of the Judges has left an impression on the minds of the public, favorable to this new institution.*' Liierary Diary qf Ewra Stiles (1901), Hi ; GaMetU qf the Uniied States, May 5, 1790. At the October session of the Curcuit Court in Connecticut in 1790, the Chief Justice in his charge to the Grand Jury
- 'made many pointed remarks on the nature of certain offences and the duty of
the Grand Jury and delivered the whole with elegant simplicity and precision", CotmeeHcui CourarU, Oct 25, 1790. The opening of the Circuit Court in Massachusetts was described in the Boston Oaaette^ May 10, 1790, as follows : "Monday last agreeably to law a Circuit Court of the United States for the Massachusetts District was held before Chief Justice Jay, Judge Cushing and Judge Lowell. After the usual forms were gone through and the Grand Jury impannelled, a charge was given them by the Chief Justice and the Throne of Grace addressed in Prayer by the Rev. Dr. Howard — the fol- lowing gentlemen were admitted Counsellors, etc. Tuesday, the Grand Jury came into Court and presented one indictment after which they were dismissed by the Chief Justice. The cause, Nebon v. De Baury, was discontinued by the plaintiff in order to bring it before the chancellate of the Consul, agreeably to the Convention agreed on between France and the United States and recently pro- mulgated. The criminal cause was continued to the next session on the plea of the defendant that very essential evidences were absent"; see also Columbian Ceniinel, May 5, 1790, and Independent Chronicle, May 27, 1790, giving the charge of Chief Justice Jay in fuU ; see ** elegant charge " of Judge IredeU at Boston, Inde- pendent Chronicle, Oct. 28, 1791 ; charge of Chief Justice Jay in Massachusetts '* replete with his usual perspicuity and elegance ", Columbian Ceniind, May 6, of the basic principles can be found than in the memorable charge of Chief Justice Jay at the first of these Circuit Courts, held in New York on April 4, 1790: "It cannot be too strongly impressed on the minds of all how greatly our individual prosperity depends on our National prosperity, and how greatly our National prosperity depends on a well-organized, vigorous government, ruling by wise and equal laws, faithfully executed. Nor is such a government unfriendly to liberty—that liberty which is really estimable. On the contrary, nothing but a strong government of laws, irresistibly bearing down arbitrary power and licentiousness, can defend it against those two formidable enemies. Let it be remembered that civil liberty consists, not in a right to every man to do just what he pleases, but it consists in an equal right to all citizens to have, enjoy and do, in peace, security and without molestation, whatever the equal and constitutional laws of the country admit to be consistent with the public good.'* He pointed out that it was universally agreed that it was "of the last importance to a free people that they who are vested with Executive, Legislative and Judicial powers should rest satisfied
with their respective portions of power and neither encroach on the provinces of each other, nor suffer themselves nor the others to intermeddle with the rights reserved by the Constitution to the people. "[40] His explanation of the necessity of a Federal Judiciary was particularly illuminating. "We had become a Nation. As such we were responsible to others for the observance of the Laws of Nations; and as our National concerns were to be regulated by National laws. National tribunals became necessary for the interpretation and execution of them. No tribunals of the like kind and extent had heretofore existed in this country. From such, therefore, no light of experience nor facilities of usage and habit were to be derived. Our jurisprudence varied in almost every State, and was acconmiodated to local, not general convenience, to partial, not National policy. This convenience and this policy were nevertheless to be regarded and tenderly treated. A judicial controul, general and final, was indispensable. The manner of establishing it with powers neither too extensive nor too limited rendering it properly independent and yet properly amenable involved questions of no little intricacy. The expedience of carrying justice, as it were, to every man's door was obvious ; but how to do it in an expedient manner was far from being apparent. To provide against discord between National and State jurisdiction, to render them auxiliary instead of hostile to each other, and so to connect both as to leave each sufficiently independent and yet sufficiently combined was and will be arduous. Institutions formed under such circumstances should therefore be received with candour and tried with temper and prudence." For the first two years of the new Government, there was naturally little business to be transacted in any of the Circuit Courts, and the situation was described by the newspapers in 1791 as follows: "In the Judicial Department as much has been done as circumstances would admit. Judges of eminent virtue and learning preside in the Federal Courts. But the very narrow judicial power of the United States renders this one of the most difficult branches of legislation. Courts must be established and provision made to administer justice to men, almost at home, and yet the business is very inconsiderable. This is not the fault of Congress. If anything is to be regretted it is that a different arrangement had not been made of the judicial power of the Constitution."^ The Judges, nevertheless, made a very favorable impression upon the local communities in which they sat, and even in Rhode Island, which had been the last State to adopt the Constitution, it was said, in 1791, that "the Court in the conduct of the business and in their decisions gave great satisfaction. Their candour, impartiality and discernment were universally acknowledged and applauded. Justice itself seemed to preside on the Bench and inspire it. " ^
But while the number of cases in the Circuit Courts was scanty, the subjects involved were of high importance and presented legal questions of the most delicate nature with respect to the limitations on State sovereignty. Most of the opposition of the Anti-Federalists to the Constitution had been based on fears lest the proposed Federal Government should control
1 See Providence OazetU, April 2, 1791, quoting Oazette cf the United States.
^ Massachusetts Spy, July 14, 1791. "The Cluef Justice hath delighted the people of Mass. They regret that Boston was not the place of his nativity and his manner they consider so perfect as to believe that New York stole him from New England," wrote Gore to King, May 15, 1790. King, I. the States in respect to their stay laws, their legal tender laws, their legislation as to British debts and loyalist properties and their State land grants and land titles.[41] After the adoption of the Constitution, the probable encroachment of the Federal Courts and extension of their powers had been apprehended as a certain cause of friction between the Federal Government and the States ; and five days after the enactment of the Judiciary Act in 1789, William Grayson of Virginia had written to Patrick Henry that "whenever the Federal Judiciary comes into operation, I think the pride of the States will take alarm." As early as 1791, Congress had debated a resolve for a Constitutional Amendment abolishing the whole system of Federal Courts as distinct from the State tribunals;[42] and in December, 1791, Attorney-General Randolph had suggested to the President that the United States Attorneys should be required to present to the Attorney-General, a general statement of cases in which the "harmony of the two Judiciaries may be hazarded, and to communicate to him those topics on which the subjects of foreign nations may complain in the administration of justice."[43] As an interesting example of the confusion attendant upon the initiation of the new judicial system, the Federal Circuit Court in North Carolina actually removed by certiorari a case which had been pending in a State Court prior to the adoption of the Constitution, an attempt which was clearly unwarranted. "The Supreme Judges of the State refused to obey, and the marshal did not execute his precept," wrote Fisher Ames, describing the episode. "The State Judges, knowing the angry state of the Assembly, wrote a letter of complaint representing the affair. Whether the United States Judges have kept within legal bounds is doubted. I should be sorry for an error of so serious a kind, and under such unlucky circumstances." ^ As early as 1792, many men in all parts of the coimtry believed that State jealousies were certain to destroy the new Government. A Virginia correspondent wrote to Alexander Hamilton : "The operation of the Government has by no means ^ been pleasing to the people of this country. On the contrary, the friends to it are daily decreasing. Some of the highest in rank and ability among us and who supported it in our convention are now extremely dissatisfied and loud in abusing its measures; while some others of equal fame only express their chagrin and disappointment in private." Theodore Sedgwick of Massachusetts wrote: "I fear the National Government has seen its best days. The distance at which it stands removed from the affections of the great bulk of the people ; the opposition of so many great, proud and jealous sovereignties ; the undistinguished, perhaps indistinguishable, boundary between National
^ Works of Fisher Ames (1854), I, letter of Jan. 6, 1791. Reference to this episode was made by Nathaniel Macon of North Carolina in a speech in the House of Representatives in 1802: "We have heard much about the Judges and the necessity of their independence. Soon after the establishment of the Federal Court, they issued a writ ... to the Supreme Court of North Carolina, directing a case then pending in the State Court to be brought into the Federal Court. The State Judges refused to obey the summons and laid the whole proceedings before the Legislature, who approved their conduct.'* 7ik Cong., 1st Sess., 711. John Sitgreaves wrote to Judge Ireddl, Aug. 2, 1791 : " With respect to the certiorari, Mr. Hamilton informed Judge Blair and myself that Mr. [Robert] Morris has desired him not to urge it further; that as he was a Member of the Legislature of the United States, from motives of delicacy, he would rather the cause should be proceeded on in the State Courts. If this should be done, I suppose the question, so far as it relates to the authority of the Courts will be suffered to sleep." Iredell, II, 333. and State jurisdictions ; the disposition which both may possess to encroach; and above all, the rancorous jealousy that began with the infancy of the Govern- ment and grows with its growth, arising from an opposition, or supposed opposition of interests — produce in my mind serious doubts whether the machine will not soon have some of its wheels so disordered as to be incapable of regular progress,"^ Such pessimism was soon seen to be unwarranted; and the new Federal Judiciary soon obtained the confidence of the people. Nothing shows this clearer »than the singular fact (hitherto unnoted by legal historians) that within two years from the beginning of the new Government, the United States Circuit Courts exercised, without any apparent contemporary criticism, that power of holding State statutes invalid, which later so frequently aroused State hostility. The first instance of this assertion of the supremacy of the Federal Government occurred as early as May, 1791. It presented, as the newspapers stated, "the great and much litigated question whether obligations in favor of real British subjects or those who had joined the armies of Great Britain during the war, should draw
I Hamilton Pap&rs M88, letter of William Heth of Richmond, June 28, 1792 ; Memcirt of TheopkUtu Parsons (1859), by Theophilus Parsons, letter of Jan. 16, 1792. Hflmiilton wrote to John Adams, Aug. 16, 1792: "Your confirmation of the good disposition of New England is a source of satisfaction. I have a letter from a wdl informed friend in Virginia who says, all the persons I converse with admowledge that the people are prosperous and happy, and yet more of them, including even the friends of the Government, appear to be alarmed at a supposed ^stem of policy tending to subvert the Republican government of this country — were ever men more ingenious to torment themselves with phantoms?"
The pessimism was not entirely due to politic^ causes. Financial troubles were rife. John Brown, a Kentucky Representative, wrote from Philadelphia, Aprfl 20, 1792 : "FaUures are daily taking place in this city and New York — the latter place in a state of distress aiid confumon beyond description; confidence between man and man is totally lost, business suspected, and mobs and insurrec- tions hourly apprehended. . . . Tis impossible to say when the calamity will stop or what the effects of it will be. Certain it is that nothing like it was ever before in this country ." Harry Innes Papers MSS. interest during the time the creditors were inaccessible by reason of the war. In this case, the Court adjudged that the statute law of Connecticut enabling the State Courts to add interest in such cases was an infringe- ment of the treaty of peace, and that upon conmion principles interest was recoverable. The learned and ingenious arguments from the bench on this question were highly interesting and gave general satisfaction.*'^ Thus, less than two years after the adoption of the Constitution, and five years before the Court decided the point in the noted case of Ware v. HyUon, the Judges of the Court on Circuit exercised the function of declaring invalid a State law which infringed upon the provisions of a treaty.
Only a year later, the Federal Judiciary again asserted the supremacy of the Federal Government by holding a State statute invalid as in conflict with the Federal Constitution, when in June, 1792, Chief
^ ConnecHetU CourarU, May 9, 1791 ; New Jersey Journal, May 11» 1791 ; Prom- dence Qazette, May 14, 1791 ; New York Journal, May 7, 1791 ; Freeman*s Jour- nal, May 16, 1791 ; MaesachusetU Spy, May 12, 1791.
The Connecticut Courani, May 9, 1791, referred to the decision as "much la- mented by those who wish to defraud their creditors", and to the State statute as having "received its death wound by the adoption of the new Constitution, and hath languished in extreme agony ever since. On Thursday, the 28th inst, the two-edged sword of justice gave its last fatal stroke and it expired without a groan. Numerous spectators beheld its corpse without a smile and hoped that it might never rise again in this world to our shame or in the world to come to our confusion."
A similar decision was given by Judge Iredell in 1792 at a Circuit Court in Sa- vannah, Ga., in the case of Samuel Braileford v. James Spalding, holding the Brit- ish Treaty "had the effect of an express repeal of that part of the State act which created an impediment to recovery of British debts sequestrated" ; Oazette of the United States, May 16, 1792; New York Daily Advertiser, May 17, 1792; United States Chronide, May 81, 1792 ; a similar decision was made by Judge Paterson at a Circuit Court in South Carolina in 1793, in the case of Higginson v. Oreenwood ; The Diary or Loudun*s Register (N. Y.), June 7, 1793. See Amer. State Papers, For, Rel., I, letter oi Jefferson to Hammond, May 9, 1792, as to British debt cases.
Rufus King wrote to Gouvemeur Morris, Sept. 1, 1792 : "The National Judidary, without having been much employed, has been the means of settling a large proportion of our foreign debts. From the Potomack, East, nothing remains to be settled. In South Carolina, where immense simis were due, they are doing well and, in a few years, will be in a very prosperous condition. Virginia will be the kat to do what her own interests required her long since to have performed." King, I. Justice Jay, Judge Gushing, and District Judge Henry Marchant, sitting in the Circuit Court for the- Dis- trict of Rhode Island, held a law of that State to be unconstitutional as impairing the obligation of contract, in the case of Alexander Champion and Thomas Dickason V. Silas Casey.[44] The statute involved was an Act of the Rhode Island General Assembly passed in February, 1791, in response to a petition of a debtor for an extension of three years' time in which to settle his accounts with his creditors and for an exemption from all arrests and attachments for such term of three years. The decision was as follows: "The Court also determined in the case of Champion and Dickason against Silas Casey that the Legislature of a State have no right to make a law to exempt an individual from arrests and his estate from attachments for his private debts, for any term of time, it being clearly a law impairing the obligation of con- tracts, and therefore contrary to the Constitution of the United States.** Another newspaper stated that : "The defendant's counsel pleaded a resolution of the State in bar of the action, by which he was allowed three years to pay his debts and during which he was to be free from arrests on that account. The Judges were unanimously of opinion that, as by the Consti- tution of the United States, the individual States are prohibited from making laws which shall impair the obligation of contracts, and as the resolution in ques- tion, if operative, would impair the obligation of the contract in question, therefore it could not be admitted to bar the action."[45] Though this decision was given great publicity in newspapers throughout the States, it seems to have aroused no opposition to the Federal Courts; and though, thirty years later, the right of these Courts to declare a State statute to be invalid was hotly attacked by many States, the exercise of this right in 1792 was accepted without protest by the very State which, five years before, had sought to impeach its State Judges for holding a State law invalid ; ^ and its acquiescence was expressed formally (as described by contemporary papers) as follows:
- In conformity to a decision of the Circuit Court,
the Lower House of Assembly voted on Wednesday that they would not grant to any individual an exemp- tion from arrests and attachments for his private debts, for any term of time/'* Following this decision in Champion v. Dickason holding a Rhode Island State law unconstitutional, the Federal Circuit Courts pro- ceeded to exercise this judicial power in a series of cases involving statutes of other States; in 179S, the validity of a Connecticut statute was involved in a case ; *
Gazette (Mass.). June 26, 1792; New York Daily Advertiaer, June 22, 1702; Connecticut Journal, June 22, 1792, and many other newspapers. One month before this decision, the Federal Circuit Court sitting in Pennsyl- vania (Judges Wilson, Blair, and District Judge Fetm) had decided a case involv- ing the validity oi a statute of that State ; but had held it not violative of the Fed- eral Constitution. See Collet v. CoUel, 2 Dallas, 294; Oazette of the United StaUs, May 2, 1792; New York DaOy Advertuer, May 2, 1792. ^ In 1787, when the Judges of the Supreme Court of Rhode Island held a legal tender paper money statute unconstitutional in Trevett v. Weeden, the Rhode Is> land Legiriature attempted to impeach the Judges; but the requisite vote was not secured. Four years later, in 1791, after the adq>tion of the Federal Consti- tution, the Legislature actually acquiesced in judicial actica holding the legal ten- der statute invalid ; and (as stated in the newspapers), a decision having been given by a State Court "on the principle that by the adoption of the Constitution that act was virtually repealed, a petition was therefore presented for the interposition of the Legislature; but as the House of Representatives refused to receive the petition, it must be inferred as the sense of the Legislature that the^ct was super- seded by the adoption of the Constitution and that it has thereby become null and void." Providence Oazette, July 9, 1791.
- Providence Ocuette, June 28, 1792.
- Connecticut Courant, Oct. 7, 1793. "The cause, which involves the question
whether a protection granted by the Lq^lature of the State . . . (which pro- tection was to continue no longer than during the session) was valid and sufficient in 1795, a statute of Pennsylvania was held invalid by Judge Paterson in VanHome^s Lessee v. Dorrance^ 2 Dallas, 304 ; ^ in 1799, a statute of Vermont was held invalid as violating the impairment of obligation of contract clause of the Federal Constitution.* So far as can be ascertained from the comments in the press and from other contemporary documents, the action of the Federal Courts in these cases met with no opposition, and no claim was ever then advanced that their action was without constitutional authority,'
Even more notable, however, in the history of American law was the very early exercise of another form of judicial power by the Federal Circuit Courts, when, three years from their establishment, they rendered a decision for the first time holding an Act of Congress to be in violation of the Constitution.
to protect his person from an arrest by process or execution from the Courts of the United States, was fully debated upon demurrer, but is continued. . . . This cause involves consequences of immense magnitude, and we trust will not be de- cided without full deliberation." This case has not hitherto been noted. ^This case has always been dted hitherto by legal historians (though erro- neously) as the first instance of a dedsion by a Federal Court on the validity of a State statute. See Aurcrot May 15, 1795, New York Daily AdoerHser^ Slay 16, 1795, Connectictd Journal, May 27, 1795, for interesting facts concerning the case ; see also a pamphlet published in Lancaster, Pa., in 1801, by William Hamilton, entitled Conneetieut Claim {Pickering Papers MS 8, L, LVII). A writ of error was taken from this decision of the Circuit Court to the United States Supreme Court, but five years later, it was dismissed for failure to prosecute. ' This case, hitherto unnoted by legal historians, is described in Farmer's Weekly Museumy April 29, 1799, as one which 'Vas lately brought to trial before the Cir- cuit Court of the United States at Rutland, Vermont, the Church Land Cause, brought by the selectmen of Manchester, by virtue of a statute of that State author- ising the selectmen of each town to take possession of all church lands, and to appropriate the avails to other purposes than originally intended. The Court, after a fair, impartial examination of the merits of the cause, adjudged the statutes to be unoomtiiulional and that the Church should hold their lands." ' The only criticism of any of the decisions was that voiced by certain Federal- ists agiunst Judge Paterson (himself a Federalist) owing to his decision in Van Home V. Dorrance; it was based purely on political and personal grounds, and arose out of the fact that the decision had resulted in damage to large numbers of Connecticut Federalbt settlers on lands in Pennsylvania; see Georgia RepMi' can, Feb. 14, 1803. In Aurora, Sept. 20, 28, 1803, it is said that Judge Paterson's decision lost him the appointment as Chief Justice in 1801, owing to opposition hy certain prominent Federalists.
By the Act of March 23, 1792, it was provided that the Circuit Courts should pass upon certain claims of invalid pensioners, subject to revision by the Secretary of War and by Congress. When the first case under this Act arose in the Federal Circuit Court sitting in New York, April 5, 1792, Chief Justice Jay and Judge Cushing, after stating that, under the Constitution, the Government was divided into three "distinct and independent branches, and that it is the duty of each to abstain from and to oppose encroachment on either, that neither the Legislative nor the Executive branch can constitutionally assign to the Judicial any duties but such as are properly judicial, and to be performed in a judicial manner ", decided to construe the Act as appointing the Judges as Commissioners to perform non-judicial duties, with power to accept or decline the office; and, out of desire to show high respect for Congress, they professed willingness to act as such Commissioners.[46] These views the Judges communicated to Congress by means of a letter addressed to the President, April 10, 1792, Judge Iredell, sitting in the Southern Circuit, also wrote to President Washington that in his view the Act was unconstitutional, and he expresed as doubt as to whether he would be justified in acting even as a Commissioner. Judges Wilson and Blair, however, sitting in the Circuit Court in Pennsylvania, met the question boldly, and (without filing any further written opinion) entered an order in the ease of an invalid claimant named Hayburn that: "it is considered by the Court that the same be not proceeded upon."[47] Following the decision, they addressed a letter to the President, setting forth "the sentiments which, on a late painful occasion, governed us with regard to an Act passed by the Legislature of the Union." They stated that "it is a principle important to freedom that, in government, the Judicial should be distinct from, and independent of, the Legislative department", and they held that the business directed by the Act was not of a judicial nature. "These, Sir, are the reasons of our conduct. Be assured that, though it became necessary, it was far from being pleasant. To be obliged to act contrary, either to the obvious direction of Congress, or to a constitutional principle, in our judgment equally obvious, excited feelings in us, which we hope never to experience again."[48] This action of the Federal Judges, holding for the first time an Act of Congress to be in conflict with the Constitution, at once became the subject of consideration in Congress. On a memorial presented by Hayburn, April 13, 1792, asking for relief, the following statement was made in the House of Representatives, setting forth more in detail the view of the Judges:[49]It appeared that the Court thought the examination of invalids a very extraordinary duty to be imposed on the Judges—and looked on the law which imposed that duty as an unconstitutional one; inasmuch as it directs the Secretary of War to state the mistakes of the Judge to Congress for their revision; they could not, therefore, accede to a regulation tending to render the Judiciary subject to the Legislative and Executive powers, which, from a regard for liberty and the Constitution, ought to be kept carefully distinct, it being a primary principle of the utmost importance that no decision of the Judiciary Department should under any pretext be brought in revision before either the Legislative or Executive Departments of the government, neither of which have, in any instance, a revisionary authority over the judicial proceedings of the Courts of Justice.… This being the first instance in which a Court of Justice had declared a law of Congress to be unconstitutional, the novelty of the case produced a variety of opinions with respect to the measures to be taken on the occasion. At length a Committee of five were appointed to enquire into the facts contained in the Memorial and to report thereon.
A singular suggestion made by one Congressman that a law be passed "to point out some regular mode in which the Judges shall give official notice of their refusal to act under any law of Congress on the ground of unconstitutionality", would seem to have been a complete and early recognition in Congress that the Judges would continue to exercise this power.
The decision evidently caused considerable excitement not only in Congress but in the community; and while, fifteen years later, it was the Anti-Federalists who assailed this form of exercise of judicial power, the curious fact should be noted that, at this time, the Federalists were apparently the opponents and the Anti-Federalists the upholders of the Judiciary. Thus, Freneau's National Gazette, a violent opponent of Federalism, applauded the decision of the Judges and expressed the hope that they might hold unconstitutional other Federal legislation:
A correspondent remarks that the late decision of the Judges of the United States in the Circuit Court of Pennsylvania, declaring an act of the present session of Congress, unconstitutional, must be matter of high gratification to every republican and friend of liberty; since it assures the people of ample protection to their constitutional rights and privileges against any attempt of Legislative or Executive oppression. And whilst we view the exercise of this noble prerogative of the Judges in the hands of such able, wise and independent men as compose the present Judiciary of the United States, it affords a just hope that not only future encroachments will be prevented, but also that any existing law of Congress which may be supposed to trench upon the constitutional rights of individuals or of States, will, at convenient seasons, undergo a revision; particularly that for establishing a National Bank; which being an incorporation and exclusive charter of privileges, violative, as it is conceived, of the independent rights and sovereignty of the States, is deemed by many of the enlightened citizens of America to be repugnant to the spirit, meaning and letter of the Constitution, and is regarded as a mere State engine of ministerial contrivance, on the pretence to aid fiscal operations, but in reality, to introduce placemen, pensioners, corruption, venality and intrigue into Congress; of the happy effects of which let those who see, speak.
The General Advertiser, owned in Philadelphia by Benjamin F. Bache and strongly hostile to the Federal Party, said:
These articles were widely quoted, apparently with approval, by other Anti-Federalist papers.[50] An interesting letter signed "Camden" opposing the action of the Judges and commenting on their "extraordinary conduct" was published in some of the papers:
But to this "Camden" article, the National Gazette retorted that while humanity might be better pleased with the attitude towards the law adopted by the Judges of the Eastern Circuit, "they too have, tho' in a delicate manner, passed sentence of unconstitutionality on the invalid law";[51] and while "we do not mean to muffle up the Judges any more than Congress in the cloak of infallibility, we wish to see both parties amply clad, that is to say, with the garb of wisdom and righteousness." A month later, this Anti-Federalist paper, in noting "several circumstances highly interesting to the United States" which had marked the session of Congress just closed, said editorially: "The decision of the Judges against the constitutionality of an Act in which the Executive had concurred with the Legislative departments is the first instance in which that branch of the government has withstood the proceedings of the others; and being another resource admitted by the Constitution for its own defense, and for security of the rights which it guarantees to the several States and to individual citizens, it may be contemplated under some very pleasing aspects, without undertaking to decide on the merits of the particular question." That the action of the Judges was not regarded as subject to criticism by the Anti-Federalists was even more strongly shown by the fact that during the months of April and May, 1792, Chief Justice Jay was conducting a hotly contested campaign for Governor of the State of New York against George Clinton, and though attacks were made on Jay on many grounds, no Anti-Federalist opposed his judicial action, on this ground.[52]
On the other hand, leading Federalist newspapers, like Fenno's Gazette of the United States, took a noncommittal position:[53] "The humane purposes of Congress in favor of the invalids are in some measure thwarted by the unconstitutional objections of the Judges. It might be arrogant to express a doubt whether the opinion they have expressed be sound." The general attitude of the Federalists seems to have been one of apprehension lest the exercise of power by the Federal Courts to declare Acts of Congress invalid might strengthen the States at the expense of the National Government; and to this effect Fisher Ames wrote: "The decision of the Judges on the validity of our pension law, generally censured as indiscreet and erroneous. At best, our business is uphill and with the aid of our law Courts, the authority of Congress is barely adequate to keep the machine moving; but when they condemn the law as invalid, they embolden the States and their Courts to make many claims of power, which, otherwise they would not have thought of."[54] Nevertheless, another equally strong Federalist, Edmund Randolph, the Attorney-General, took the opposite view, and in a letter to President Washington expressed the hope that the Judges would continue even firmer in denouncing infractions of the Constitution:
It is much to be regretted that the Judiciary in spite of their apparent firmness in annulling the pension law are not, what sometime hence they will be, a resource against the infractions of the Constitution on the one hand, and a steady asserter of the Federal rights on the other. So crude is our Judiciary system, so jealous are State Judges of their authority, so ambiguous is the language of the Constitution that the most probable quarter from which an alarming discontent may proceed is the rivalship of these two orders of Judges. … Many severe experiments, the result of which upon the public mind cannot be foreseen, await the Judiciary; States are brought into Courts as defendants to the claims of land companies and of individuals; British debts rankle deep in the hearts of one part of the United States; and the precedent fixed by the condemnation of the pension law, if not reduced to its precise principles, may justify every constable in thwarting our laws.
In order to obtain a decision from the full Court, reducing its views to "precise principles", Randolph, acting officially as Attorney-General, filed a motion for a mandamus to the Circuit Court in Pennsylvania to command them to proceed on the petition of the invalid pensioner, Hayburn. The case was reported in Dallas Reports very briefly, but the contemporary newspapers give a far more complete account of this earliest of American constitutional cases, and describe it as follows:[55] And Randolph, writing to Madison, gave the following account, incidentally expressing his not very complimentary views of the Chief Justice:[56] "After I had finished my exordium which was strong and pointed, and after it was foreseen that I should speak with freedom, Mr. Jay asked me if I held myself officially authorized to move for a mandamus. I assigned reasons in the affirmative and refused to make the motion until the official question was decided. It continued from day to day until yesterday, when Johnson, Iredell, and Blair were in favor of my power, and the other three against it. The motion was therefore necessarily waived for the present in an official form. But being resolved that the Court should hear what I thought the truth, I offered it, as counsel for the invalids. … An opinion which has long been entertained by others is riveted in my breast concerning the C. J. He has a nervous and imposing elocution, and striking lineaments of face, well adapted to his real character. He is dear, too, in the expression of his ideas, but that they do not abound on legal subjects has been proved to my conviction. In two judgments which he gave last week, one of which was written, there was no method, no legal principle, no system of reasoning!" Hayburn's case was never decided by the Court; for Congress intervened by changing the statute involved. Meanwhile, the Judges, though adhering to their decision on Circuit not to act in their judicial capacity under the law, decided (all, except Wilson) to construe the statute as authorizing them to act unofficially as Commissioners.[57] To test the validity of the action of the Judges as Commissioners, Congress, by Act of February 28, 1793, after repealing parts of the earlier questionable statute, made an express provision for the institution of a suit by the Attorney-General; and in compliance with this Legislative direction, the Attorney-General moved the Supreme Court for a mandamus against the Secretary of War to require him to put on "the pension list one of those who had been approved by the Judges acting in the character of Commissioners." The result of this motion he described in a letter to the Secretary: "Two of the Judges having expressed their disinclination to hear a motion in behalf of a man who had not employed me for that purpose, and I being unwilling to embarass a great question with little intrusions, it seems best to waive the motion until some of the invalids themselves should speak to counsel. To this end, I beg leave to suggest the propriety of a letter from your office to such of the invalids as have been certified to be proper for pensions, and perhaps it may be well to intimate the turn which the affair has taken and I have just mentioned. It was very unlucky that, although one of the invalids was in Court when I made the motion, and heard the difficulty, he omitted to notify himself to me until the Court had risen and it was too late."[58]
The Attorney-General's action producing no results, a petition for mandamus against the Secretary of War was brought by a petitioner, John Chandler, which was heard on February 5 and decided February 14, 1794, in which the Court ruled: "Having considered the two Acts of Congress relating to the same, we are of opinion that a mandamus cannot issue to the Secretary of War for the purpose expressed in said motion." Three days later, another suit brought by the United States against a pensioner, Yale Todd, was decided in which the Court held in substance that the decisions of the Judges acting as Commissioners were without legal force. In both of these cases, the Court appears to have found it unnecessary to pass upon the constitutionality of the Act of 1792, for it held that the construction and theory of the Act adopted by the Judges, that it gave them authority to act as Commissioners, and not as Judges of the Court was untenable.[59] The great question, therefore, of the power of the Judiciary with respect to the validity of Federal statutes was postponed for consideration until a later date. As pointed out above, however, the striking fact about the episode is that this first refusal by Supreme Court Judges on Circuit to acknowledge the validity of an Act of Congress seems to have been heartily supported by the adherents of the political party which favored a strict construction of the Constitution and to have been opposed by the party which was devoted to Nationalist theories. A review of the contemporary writings and journals from 1789 to 1802 clearly demonstrates that it was frequently the Anti-Federalists who supported the right of the Court to pass upon the constitutional validity of legislation, because they felt that it was the great guarantee of protection to State and individual rights against Congressional invasion, and that only in this manner would the power of the Federal Government be curbed;[60] they welcomed the Court as a needed check upon Congress; and it was in the writings of two strong Federalists, Zephaniah Swift of Connecticut and Richard Dobbs Spaight of North Carolina,
that the chief attack was made on this form of judicial power.[61]
Whatever may have been the attitude of the Anti-Federalist and of the Southern statesman at a later date, it is clear that at the outset they fully recognized and indorsed the exercise of judicial review. This was very strongly shown during a debate which had occurred in June, 1789, in the First Congress, when a bill was proposed making the Secretary of Foreign Affairs removable by the President. Objection being raised to the constitutionality of this measure, it was emphatically contended by the Congressmen from the Southern States and by the Anti-Federalists that Congress ought not to legislate, since the question of the President's power to remove was one which must be settled by the Judiciary.[62] Abraham Baldwin of Georgia said: "It is their province to decide upon our laws and if they find them to be unconstitutional, they will not hesitate to declare it so." John Page of Virginia said that the Constitution ought to be left "to the proper expositors of it"—the Judges. William Smith of South Carolina stated that the question of the President's right of removal should be "left to the decision of the Judiciary", who on a mandamus "would determine whether the President exercised a constitutional authority or not." This statement was very significant, in view of the fact that Jefferson, fourteen years later, objected to the right of the Judges to issue a mandamus to his Cabinet officer. Alexander White of Virginia said: "I would rather the Judiciary should decide the point because it is more properly within their department"; and again: "I imagine the Legislature may construe the Constitution with respect to the powers annexed to their department, but subject to the decision of the Judges." It remained, however, for Elbridge Gerry, who later became one of the strongest of the Anti-Federalists, to assert most clearly that: "The Judges are the constitutional umpire on such questions. … We are not the expositors of the Constitution. The Judges are the expositors of the Constitution and Acts of Congress. Our exposition, therefore, would be subject to their revisal. The Judiciary may disagree with us and undo what all our efforts have labored to accomplish." And Gerry further asked whether the Judges "because Congress has usurped power", were to be impeached "for doing a meritorious act and standing in opposition to their (i.e. the Congress') usurpation of power?" It thus appears that in these early days, it was not "usurpation of power" by the Courts which was talked of, but rather, "usurpation of power" by Congress.[63] Two years later, the debate in Congress over the chartering of the Bank of North America disclosed again a general concurrence of opinion among Congressmen, both of the South and the North, as to the right of the Court to adjudicate upon the constitutionality of the measure.[64]
While, as seen above, the decisions of the Federal Circuit Courts in the early years were received in general with approbation, the Circuit Court system itself was regarded from the beginning as decidedly unsatisfactory, both by the Judges themselves, by the litigants and by the general public. The Judges of the Supreme Court strongly objected to the imposition on them of this Circuit duty, and Chief Justice Jay wrote to the President, as early as September, 1790, urging that the provisions of the Judiciary Act with reference to such duty be altered, and contending that it was inconsistent and incompatible for the Supreme Court Judges to sit in both Courts, and that Congress had no constitutional power to impose these functions upon the Judges. At the end of this first year, 1790, Attorney-General Edmund Randolph in a report to Congress urging changes in the Judiciary Act also advocated abolition of this Circuit duty, saying: "Those who pronounce the law of the land without appeal ought to be pre-eminent in most endowments of the mind. Survey the functions of a Judge of the Supreme Court. He must be a master of the common law in all its divisions, a Chancellor, a civilian, a Federal jurist and skilled in the laws of each State. To expect that, in future times, this assemblage of talents will be ready, without further study, for the National service is to confide too largely in the public fortune. Most vacancies on the Bench will be supplied by professional men, who, perhaps, have been too much animated by the contentions of the Bar deliberately to explore this extensive range of science. In a great measure, then, the Supreme Judges will form themselves after their nomination. But what leisure remains from their itinerant
dispensation of justice? Sum up all the fragments of their time, hold their fatigue at naught, and let them bid adieu to all domestic concerns, still the average term of a life, already advanced, will be too short for any important proficiency."[65] Randolph further pointed out that it would be difficult for the Judges who had given an opinion on Circuit to change it when they sat in the full Court. He feared jealousies and antagonism would creep among them. He also urged that if the Court became stationary, the Judges would be able to make reports of their decisions, which would be valuable to "announce the talents of the Judge"; and that "if the Judge whose reputation has raised him to office shall be in the habit of delivering feeble opinions, these reports will first excite surprise, and afterwards a suspicion, which will terminate in a vigilance over his actions."
It was soon found that the burden thus placed upon the Judges was intolerable. The mere physical labor of travel, in view of the great distances and scanty means of transportation, was thoroughly exhausting. Judge Iredell, who had the Southern Circuit entailing a tour of the States of North and South Carolina and Georgia twice a year, as well as a journey twice a year to and from Philadelphia of nearly two thousand miles, quite reasonably termed his life that of a "travelling postboy", and writing to Chief Justice Jay, in February, 1791, said that "no Judge could conscientiously undertake to ride that Circuit and perform the other parts of his duty." Jay, himself, who had the Northern Circuit, wrote that "the Circuits press hard on us all." Judge Johnson resigned rather than undertake the labor. Finally, President Washington himself wrote, in August, 1791, that he hoped that Congress would give "relief from these disagreeable tours."[66] Besides the laborious duties it entailed, the system was defective for other reasons. "It has happened in more than one instance," wrote Jay to Rufus King, "that questions in the Circuit Court decided by one set of Judges in the affirmative had afterwards in the same Court been decided by others in the negative. As writs of error do not reach every case, this evil has no remedy. The natural tendency of such fluctuations is obvious; nor can they otherwise be avoided than by confining the Judges to their proper place, viz. the Supreme Court."[67] Frequently the Judges, through illness or impassable state of the highways, were unable to attend, and the consequent delays and postponements entailed great cost and hardships to litigants and injustice to persons held for trial for crimes.[68] The National Gazette said: The judicial system was so defective, both in point of principle and arrangement, and so awkward and unwieldy in its operation that the second session of Congress saw the necessity of an entire alteration; they modestly avoided the work themselves, as if it had been a task beyond their strength, notwithstanding the number of professional gentlemen in both houses, and ordered the Attorney General, in the Congressional style, a sort of Secretary of the Law Department, to report the necessary amendments;—an elaborate folio pamphlet appeared at the next session, and the people expected the business would have been immediately taken up, had not another of their Secretaries made a report on a project infinitely more interesting (to individuals); and this elegant piece of refinement and obscurity, the report of the Secretary at Law, was immediately consigned to oblivion; and the great object of the administration of justice, and the reputation of the National Government were equally forgotten and neglected.
The Judges themselves united in writing to the President an urgent letter, August 19, 1792, which he transmitted to Congress, in which they said:[69]
Congress paid no heed to the request;[70] but it lightened the labors of the Judges somewhat by passing the Act of March 2, 1793, which provided that the Circuit Courts should consist of one Supreme Court Judge and one District Judge; and thereafter, the Judges took the Circuits in turn, instead of being confined to fixed Circuits. In consequence of this change, Jay, who during the previous year had been a candidate for Governor of New York, because, as he wrote, "the office of a Judge of the Supreme Court of the United States was in a degree intolerable and therefore almost any other office of a suitable rank and emolument was preferable,"[71] decided to remain on the Bench. He still insisted, however, upon the weakness of the Federal Judiciary system. "The Federal Courts have enemies in all who fear their influence on State objects. It is to be wished that their defects should be corrected quietly. If these defects were all exposed to public view in striking colors, more enemies would arise, and the difficulty of mending them be increased. When it is considered that the important questions expected to arise in the Circuit Courts have now been decided in them, I can conceive no reason for continuing to send the Supreme Court Judges to preside in them, of equal weight with the objections which oppose that measure."[72]
- ↑ An Enquiry as to the Constitutional Authority of the Supreme Federal Court over the Several States in Their Political Character (1792), by a citizen of South Carolina (David Ramsay).
- ↑ Washington, X, letter of Sept. 27, 1789.
- ↑ Washington Papers MSS, letters to Robert R. Livingston, May 81, 1789, and Nathaniel Gorham, May 7, 1789; see also Washington, X, letter to Edward Rutledge, May 5, 1789. To his nephew Bushrod Washington, who sought to be appointed United States Attorney, Washington wrote, July 27, 1789: "My political conduct in nominations, even if I were uninfluenced by principle, must be exceedingly circumspect and proof against just criticism, for the eyes of Argus are upon me, and no slip will pass unnoticed that can be improved into a supposed partisanship for friends or relatives."
- ↑ This letter, hitherto unpublished, is in the Library of Congress; see Calendar of Applications and Recommendations for Office under the Presidency of George Washington (1901), by Gaillard Hunt.
- ↑ See Hamilton (Lodge's ed.), VIII, 208, note; History of Political Parties in the State of New York (1846), by Jabez W. Hammond, I, 30, 36; Columbian Centinel, Oct. 24, 1801; The Livingstone of Livingston Manor (1900), by Edward E. Livingston, 332.
- ↑ William Jay in his Life of John Jay (1878), II, 274, said: "The President's opinion of Mr. Jay's ability and disposition to serve his country induced him to ask his acceptance of any office he might prefer." Washington wrote to Madison, Aug. 9, 1789: "I have had some conversation with Mr. Jay respecting his views to office which I will communicate to you at our first interview." Washington, X.
S. A. Otis wrote to John Langdon in Sept., 1789: "The Keeper of the Tower is waiting to see which salary is best, that of Lord Chief Justice or Secretary of State." Letters of Washington, Jefferson and Others to Langdon (1880), 92. - ↑ Washington Papers MSS, letter signed "Civis", Sept. 1, 1789.
- ↑ Washington, X, letter of Oct. 5, 1780. To this. Jay replied: "When distinguished discernment and patriotism unite in selecting men for stations of trust and dignity, they derive honour not only from their offices, but from the hand which confers them. With a mind and a heart impressed with these reflections and their correspondent sensations, I assure you that the sentiments expressed in your letter of yesterday and implied by the commission it enclosed, will never cease to excite my best endeavours to fulfil the duties imposed by the latter, and as far as may be in my power, to realize the expectations which your nominations, especially to important places, must naturally create." Jay, III, letter of Oct. 6, 1789.
- ↑ "A sound judgment improved by extensive reading, and great knowledge of public affairs, unyielding firmness and inflexible integrity were qualities of which Mr. Jay had given frequent and signal proofs," was the characterisation which John Marshall later made of his friend and predecessor. Life of Washington (1807), by John Marshall, V, 215. Washington wrote to Lafayette, June 8, 1790, that his appointments of Jay at the head of the Judiciary and of Jefferson, Hamilton and Knox as Cabinet officials "generally have given perfect satisfaction to the public."
- ↑ Washington, X, letter of Aug. 10, 1789; Arthur Lee had applied for appointment, May 31, 1789 (see letter in Library of Congress), as follows: "It is not without apprehension of presuming too much on the favor you have always shown me that I offer you my services as a Judge of the Supreme Court which is now establishing. The having been called to the Bar in Westminster Hall after five years study at the Temple and having practised the law there for some time are the ground, Sir, on which I presume to ask your protection. I quitted the line of the law in England, where much was to be expected from the pursuit of it and with the fairest prospects, at the moment my country called upon me to aid in supporting her violated rights. With what fidelity I discharged the trust she reposed in me, the records of the Office of Foreign Affairs will show. To return to the profession I had chosen, in a station not unbecoming those in which I have acted, is my most earnest desire. It would be an additional satisfaction to be distinguished by your appointment, Sir, and to assist in distributing equal justice to a well-governed people." As to this letter Washington, writing to Madison in Aug., 1780, said: "What can I do with A(rthur) L(ee)? He has applied to be nominated one of the Associate Judges; but I cannot bring my mind to adopt the request. The opinion entertained of him by those with whom I am most conversant is unpropitious; yet few men have received more marks of public favor and confidence than he has. These contradictions are embarrassing."
- ↑ Edmund Randolph, writing to Madison as early as July 19, 1789, said that Col. Griffin "had written him July 10, stating that he had had 'a long conversation with our worthy President on the subject of officers of the Judiciary and the customs. He appears very anxious to know whether any of the gentlemen who are now in the Judiciary department in the State of Va., would prefer the Continental establishment and mentioned Mr. Pendleton, Mr. Wythe, Mr. Lyons and Mr. Blair, and asked me whether you had ever intimated a wish to serve in that or any other line under the Federal government. May I ask the favor of you to sound Mr. W(ythe) and Mr. B(lair) on the subject. I have written to Mr. Marshall relative to the wishes of Mr. P(endleton) and Mr. L(ee).'" Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (1888), by Moncure D. Conway, 126.
Similar views as to possible candidates had been expressed by Joseph Jones of Virginia to Madison as early as June 24, 1789, Mass. Hist. Soc. Proc. 2d Series, XV: "Virginia ought to have one. … Of our Judges, Pendleton, Wythe, Blair, would either of them answer well? The first will, I fear, be unable to execute his present office long; the others are qualified and able, if they would act. Among the lawyers, I know of none but Randolph. It is of the first consequence to have your Supreme Court of able lawyers and responsible characters"; see also letters of Washington to Joseph Jones, May 14, 1789, and to Edmund Randolph, Nov. 30, 1789, explaining that the reason for not appointing George Wythe to the Federal Judiciary was Wythe's preference to remain a State Judge; and see report of Randolph to Washington, Dec. 15, 1789: "Wythe sits in a kind of legal monarchy which to him is the highest possible gratification." - ↑ See letter of July 18, 1789, from Lincoln, also indorsement of Lowell by Elbridge Gerry, Calendar of Applications (1901), by Gaillard Hunt; Office Seeking during Washington's Administration, Amer. Hist. Rev. (1896), I, 270. Fisher Ames also favored the appointment of Lowell, letter of Aug. 12, 1789, Works of Fisher Ames (1854), I.
- ↑ King, I, letter of Aug. 6, 1789. Cushing's appointment was opposed by the strong Federalists in Massachusetts, who feared that his removal from the State Bench would give to Governor John Hancock, an Anti-Federalist, an opportunity to appoint the determined foe of all Federalists, James Sullivan; see letter of Stephen Higginson to John Adams, Amer. Hist. Ass. Rep. (1896), I, 767; William Cushing, by Arthur P. Rugg, Yale Law Journ. (1920), XXX.
- ↑ See letter of April 27, 1788, Calendar of Applications (1901), by Gaillard Hunt, in Library of Congress.
- ↑ See opinion of McKean, C. J., in Respublica v. Cobbett (1798), 3 Dallas, 467. Owen Wister in The Supreme Court of Pennsylvania, Green Bag (1891), III, graphically portrayed McKean "with perpetually assailed and never tarnished honor; riding roughshod over everyone who opposed him; haughty and uncompromising; hated by many, respected by most and feared by all; invariably plainly prompted by his sincere and ferocious belief in himself."
- ↑ Washington Papers MSS, letterbook, letter of Sept. 28, 1789.
- ↑ Hamilton (Lodge's ed.), VIII, letter of Nov. 27, 1789; Washington, X, letter of Washington, Nov. 25, 1789, urging Harrison to accept, and saying that contemplated changes in the Judiciary Act would allow him time to pay attention to his private affairs.
- ↑ South Carolina Federalist Correspondence, 1789-1797, Amer. Hist. Rev. (1906), XIV, letter of Ralph Izard to Edward Rutledge, Sept. 21, 1784. Izard continued as follows: "The President asked me before the nominations were made whether I thought your brother John, General Pinckney, or yourself would accept of a Judge in the Supreme Court. I told him that I was not authorized to say that you would not, but intimated that the office of Chief Justice would be most suitable to either of you. That, however, was engaged. … The President will not appoint any but the most eminent; and if none in South Carolina of that description will accept, he will be obliged to have recourse to some other State."
- ↑ Washington Papers MSS, letterbook, letter of Sept. 28, 1789.
- ↑ Washington Papers MSS, letter of Rutledge, June 12, 1795, infra, 127.
- ↑ Harry Innes Papers MSS, letter of Sept. 28, 1789.
- ↑ Later, Paterson and Ellsworth, who were members of the Federal Convention of 1787, were appointed on the Court. Economic Origins of Jefferson Democracy (1915), by Charles A. Beard, 102-105. Of the thirty-nine men who signed the Constitution, twenty-six found a place in the new Government, either by election or appointment, and of three members of the Federal Convention who favored but did not sign the Constitution, two were elected Senators and one was appointed Attorney-General.
- ↑ Washington, X, letters of Sept. 30, 1789. The nominations of the Judges were sent in to the Senate, Sept. 24, and were confirmed, Sept. 26.
- ↑ Full accounts were published in the New York and Philadelphia papers and copied in papers throughout the country; New York Daily Advertiser, Feb. 3, 10, 11, 1790; Pennsylvania Packet (Phil.), Feb. 6, 11, 16, 1790; Federal Gazette (Phil.), Feb. 4, 6, 8, 10, 1790, stating the Court met "at the Assembly Chamber, New York"; New York Journal, Feb. 4, 1790, and Freeman's Journal (Phil.). Feb. 10, 1790, said "a very numerous and respectable auditory attended."
It is a curious fact that the very first line in the official written minutes of the Court, kept by the Clerk, contained an error. It reads as follows: "In the Supreme Judicial Court of the United States." The word "Judicial" of course improperly appears in the official title of the Court, and was undoubtedly inserted by the Clerk (who was a Massachusetts man) because of the fact that in Massachusetts, the official title of its highest Court was the "Supreme Judicial Court" - ↑ See also Iredell, II, letter of Samuel Johnson to Iredell, Feb. 1, 1790.
- ↑ See also the more concise official minutes of the Court in 134 U. S. App. In the proceedings of this first session of the Court, no record is made of any oath being administered to the Judges. It is probable that each took the oath separately, for it is known that Wilson was sworn before the Mayor of Philadelphia, Oct. 5, 1789; see History of the Supreme Court (1891), by Hampton L. Carson, 148.
- ↑ 1
- ↑ 2
- ↑ "Ordered that (until further orders) it shall be requisite to the admission of Attorneys or Counsellors to practice in this Court, that they shall have been such for three years past in the Supreme Court of the State to which they respectively belong, and that their private and professional character shall appear to be fair."
- ↑ The counselors were Egbert Benson, John Lawrence, Morgan Lewis, Richard Varick of New York, and Robert Morris of Pennsylvania; Theodore Sedgwick, Fisher Ames and George Thacher of Massachusetts; William Smith of South Carolina; James Jackson of Georgia; Samuel Jones, Ezekiel Gilbert and Cornelius J. Bogert of New York; Abraham Ogden, Elisha Boudinot and William Paterson of New Jersey. The attorneys were William Houston, Edward Livingston, Jacob Morton, Bartholomew de Hart, Jchn Keep, Peter Masterton and William Willcocks, all of New York.
- ↑ New York Daily Advertiser, March 5, 1790; Oazette of the United States, March 6, 1700; Virginia Herald (Fredericksburg), March 18, 1790.
- ↑ Gazette of the United States, March 6, 1790.
- ↑ Independent Chronicle, Sept. 28, 1790. "A writer in a Vermont paper observes that the candidates (for Congress) are generally lawyers and that Uiey are not fit subjects of the people's choice. Make them, says he. Governors, Judges, Generals and what you will, but never make them legislators." Columbian Centind, Aug. 25. 1792.
- ↑ Gazette of the United States, Feb. 10, 1790.
- ↑ See among many others, the following newspapers: Virginia Independent Chronicle (Richmond), Feb. 17, 1790; Virginia Herald (Fredericksburg), Feb. 18, 86, 1790; Atigutia Chronicle (Ga.), March 27, 1790; New Jersey Journal, Feb. 16, 1790; Connedieut Journal, Feb. 10, 1790; Boston OaxeUe, Feb. 15, 1790; Independent Chromde (Boston), Feb. 11, 1790; Salem Gazette, Feb. 16, 1790.
- ↑ Pennsyhvania Gazette, Aug. 11, 1790.
- ↑ Hamilton (Lodge's ed.), VIII, letter of Hamilton to Jay, Nov. 18, 1790; Jay, III, 404, gives the last two words as "unfledged thought"; letter of Jay to Hamilton, Nov. 28, 1790.
- ↑ See letter of Edward Burd to Jasper Yeates» Feb. 8, 1791, in Atner, Law Rm, (1900), XXXTV, 628, quoted in a letter from Pranda Rawle.
- ↑ Washington, X, letter of April S, 1790.
- ↑ Columbian Centinel, May 29, 1790 ; this charge was repeated in all the Districts of the Eastern Circuit; see also Jay, HI, 887.
- ↑ In the controversies between New York and Vermont over the admission of Vermont into the Union as a new and separate State, one of the chief obstacles was "the demand on the part of Vermont to be secured against certain claims for lands which it seems they are apprehensive would be wrested from them through the means of the Federal Courts." New York Daily Advertiser, Feb. 16, 1790; Massachueetts Spy, March 4, 1790 ; and see infra, ch. 2.
- ↑ Freeman's Journal, March 9, 16, 1791; Connecticut Courant, March 21, 1791; Providence Gazette, April 2, 1791.
- ↑ Amer. State Papers, Misc., I, No. 25. letter of Dec. 28, 1791.
- ↑ This caae has hitherto escaped the notice of legal historians ; the original rec- ords are now on file in the United States District Court for the District of Rhode Island.
- ↑ For these reports of the decision, see Columbian CenHnd, June 20, 1792; Providence Gazette, June 16, 1702 ; United States Chronicle (Prov.), June 14, 1792 ; Salem
- ↑ That the subject matter of the statute was such as to enlist popular sympathy, and therefore to bring possible odium on the Judges for failing to act under the statute, may be seen from an editorial in the National Oazette, April 12, 1792: "Our poor, starving invalids have at length some provision made for them by Congress; and as the distresses of many of them are urgent in the extreme, it is to be hoped that not a moment's delay will be made by the public officers who are directed to settle their accounts; for although men who are accustomed to plentiful tables do not perhaps know it, it is nevertheless a melancholy truth that a few days fasting would kill not only a feeble, war-worn veteran, but even a hearty well-fed member of Congress or head of a department. If through unavoidable delay any of those unfortunate men should starve before their pittance is paid, then it is to be hoped their widows and orphans will on the very first application receive it, that they may at least have something to purchase coffins for the deceased."
- ↑ See the First Hayburm Case, by Max Farrand, Amer. Hist. Rev. (1907), XIII.
Judge Peters, who also sat in this case, wrote, June 28, 1818, to Charles J. Ingersoll relative to a later pension act: "Having been among the first Judges who resisted the danger of Executive control over the judgments of Courts when the first Invalid Law gave power to the Secretary of War to review such judgments, I am confirmed in the opinions I then held by the circumstances now occurring; tho' I do not now act as a Judge in a Court." Peters Papers MSS. - ↑ For this letter of April 18, 1792, and that of Judge Iredell of June 8, 1702, see 2 Dallas, 410, note; Amer. State Papers, Misc., No. 81.
- ↑ See report in American Daily Advertiser, April 16, 1792; see also 2d Cong., 1st Sess., 566–557.
- ↑ National Gazette (Phil.), April 16, 19, 1792; Norwich Packet (Conn.), April 26, May 3, 1792; General Advertiser (Phil.), April 20, 21, 1792; Boston Gazette, April 30, 1792; Salem Gazette, May 1, 1792; some Federalist papers also quoted the National Gazette article, see New York Daily Advertiser, April 21, 25, 1792; Maryland Journal and Baltimore Advertiser, April 20, 1792.
- ↑ National Gazette, April 23, May 11, 1792; Boston Gazette, May 28, 1792; New York Daily Advertiser, May 14. 1792; Dunlap's American Daily Advertiser, May 11, 1792; a writer in Claypoole's Daily Advertiser, April 16, 1792, expressed the hope that the Judges "may do the same with the national bank" statute, recently enacted by Congress.
- ↑ Amongst other attacks, see New York Daily Advertiser, April 4, 1792, letter of "Aristides."
- ↑ Gazette of the United States (Phil.), May 9, 1792; New Jersey Journal, May 16, 1792; Dunlap's American Daily Advertiser (Phil.), May 10, 1792.
- ↑ Works of Fisher Ames (1854), I, letter of April 25, 1792.
- ↑ General Advertiser (Phil.), Aug. 16, 1792; Gazette of the Untied States, Aug. 25, 1702; United States Chronicle (Prov.), Aug. 30, 1792; Massachusetts Spy, Aug. 30, 1792.
- ↑ Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (1888), by Moncure D. Conway, 145, letter of Aug. 12, 1792.
- ↑ Cushing wrote to Jay, Oct. 3, 1792, from New Jersey: "There being no determination upon the subject in that district before … we acted as Commissioners and sent our certificates accordingly (without making any entry on the book about it) to the Supreme Secretary of War." As to this action, the New Jersey Journal (Elizabethtown, N. J.) said, June 6, 1792: "Who ever has attended the Circuit Court of the United States, the present term, must have been affected at the many objects who presented themselves as candidates for pensions. To see the lame and emaciated, war-worn soldier, the decrepit and almost naked seaman—the best years of whose life had been spent in the service of his country, humbly supplicating the scanty morsel to save him from perishing was a sight which affected every benevolent and generous heart present. … But the attention of the Hon. Judges was commensurate with the necessities of the wretches who applied." In Connecticut, Judges Iredell and Law decided to act as Commissioners in a case of John Chandler. "We have had a great deal of business to do here, particularly as I have reconciled myself to the propriety of doing invalid business out of Court. Judge Wilson altogether declines it," wrote Judge Iredell, Sept. 30, 1792. This decision of the Judges was commended by the Connecticut Courant, Oct. 7, 1792; Connecticut Journal, Oct. 3, 1792, Norwich Packet, Oct. 11, 1792, as follows: "We are equally happy in mentioning to the public that two of the Judges have, notwithstanding some objections, consented to act as Commissioners in executing the Pension Law. Their candor and indulgence in proceeding to the laborious task of examining the claims of the numerous applicants for pensions; a task which, in their opinion, their duty does not require them to undertake, do great honor to their humanity and compassion. It is hoped and presumed that the crippled soldier, the war-torn veteran will now obtain that justice which he long ago ought to have obtained from his unfeeling countrymen."
- ↑ Amer. State Papers, Misc., I, No. 47; letter of Aug. 4, 1798; see The Case of John Chandler, by Gordon E. Sherman, Yale Law Rev. (1905), XIV; 7th Cong., 1st Sess., 742, 772, 780, 903, 904; United States v. Yale Todd, reported in 13 How. 52, note. The Act of Congress referred to was Section 3 of the Act of February 28, 1798 (1 Stat. 325): "It shall be the duty of the Secretary of War, in conjunction with the Attorney General, to take such measures as may be necessary to obtain an adjudication of the Supreme Court of the United States on the validity of any such rights claimed under the acts aforesaid, by the determination of certain persons styling themselves commissioners." Neither the Chandler nor the Todd cases were reported in Dallas Reports.
- ↑ See letter of Attorney-General Bradford to the Secretary of War, Feb. 17, 1794, announcing the result as follows: "That Court has this day determined (in the case of Todd) that such adjudications are not valid"; and letter of tary of War Knox to the Senate and House, Feb. 21, 1794, reporting that "such adjudication has been recently obtained and that the determinations of the commissioners were held to convey no legal rights to the invalids claiming under them." Amer. State Papers, Misc., 1, 47.
Several legal writers have stated that the Court held the statute unconstitutional; but as pointed out by James B. Thayer in his Constitutional Cases, I, 105, note: "It is inaccurate to say that this case holds the Act of 1792 to be unconstitutional as appears to be said in the note in 13 How. 52, and as is expressly said in the Reporter's Note in 131 U. S. App." Farrand also says that "probably the Court did not formally declare the Act unconstitutional. … It is altogether probable that the Court evaded the issue." See contra, however, Shiras, J., in Re Sanborn (1893), 148 U. S. 222. - ↑ That strong Anti-Federalist, Governor John Hancock, in his address to the Massachusetts Legislature, June 3, 1790, said: "Our persons and possessions are governed by standing and known laws and secured by a Constitution formed by ourselves. This Constitution is a law to the legislative authority itself, and lest the pride of office or the hand of lawless power should rob the people of their constitutional security, a proper balance is provided in the Judicial Department"; see Gazette of the United States, June 9, 1790.
- ↑ See A System of the Laws of the State of Connecticut (1795), by Zephaniah Swift, I, 51-55; Iredell, II, letter of Spaight, Aug. 12, 1787; see also infra, 257. It is interesting to note that the Anti-Federalists were equally pleased when, in 1792, President Washington curbed the power of Congress by vetoing a statute apportioning Congressmen, on the ground that it was unconstitutional. "This Act of decision, firmness and independence," wrote James Monroe to John Breckenridge, "has presented a ray of hope to the desponding, in and out of the republican party. He inspires men with a confidence that the government contains within itself a resource capable of resisting every encroachment on the publick rights." Breckenridge Papers MSS, letter of April 6, 1792.
- ↑ 1st Cong,, 1st Sess., debate in the House, June 16, 17, 18, 19, 22, 1789.
- ↑ In this same debate, the following Federalists also contended for the power of the Judiciary. Fisher Ames of Massachusetts stated that: "If we declared improperly, the Judiciary will revise our decision." John Lawrence of New York said: "If the laws shall be in violation of any part of the Constitution, the Judges will not hesitate to decide against them." Peter Silvester of New York said: "If we are wrong, they (the Judiciary) can correct our error." William Smith of Maryland said: "It is the duty of your Legislature to make your laws; your Judges are to expound them."
- ↑ 1st Cong, 3d sess., speeches in the House of Elias Boudinot of New Jersey, and John Lawrence of New York, Feb. 4, 1791, William Smith of South Carolina, Feb. 5, William B. Giles of Virginia, Feb. 7. See also The Doctrine of Judicial Review (1014), by Edward S. Corwin.
- ↑ Iredell, II, 292, 872, letter of Jay to Iredell, Sept. 15, 1790, inclosing draft of his letter of the President; letter of Iredell to Jay, Cushing, and Wilson, Feb. 11, 1791, protesting the arrangement of Circuits and requesting a rotation. Amer. State Papers, Misc., I, No. 17, report of Randolph, Dec. 27, 1790.
- ↑ Washington, X, letter of Aug. 7, 1791. Rufus King wrote to Southgate, Sept. 30, 1792: "I remember you have a cause in the Federal Courts that has been delayed for want of Judges to form a Court. Wilson and Iredell go to the Eastern Circuit. I have heard that Wilson casually observed (when here on his way to Connecticut, where he now is) that he should not go farther East than Boston and that Mr. Iredell would go to New Hampshire."
- ↑ King, I, Dec. 19, 1793.
- ↑ In the National Gazette, Jan. 5, 1793, a correspondent from Newbern, N. C., wrote Dec. 11, 1792: "The Circuit Court of the United States was opened here on the 30th of November and continued open from day to day until Tuesday the 11th inst., when it was adjourned by the District Judge until the 1st of June, next. No business of any kind was done, owing to the absence of the Circuit or Associate Justice. The jurors attended with great punctuality and patience the whole time, although this is a very busy and important season with the planter and farmer. Mr. Johnson, one of the Associate Justices, had held the Courts in South Carolina and Georgia, and was taken ill at Augusta and his letter authorizing the adjournment of the Court was not received until Monday, the 10th. Several pirates have been for many months confined here in a loathsome dungeon, praying for their execution as a tender mercy compared with their present confinement—and two persons, who were only so unfortunate as to be witnesses of their crimes, not being able to give security for their appearance, are confined in a manner not much more comfortable. These poor wretches are now doomed to suffer the inclemencies of the winter in a situation already shocking to humanity." See also a letter from a citizen of Delaware describing the failure of Judges Iredell and Wilson to attend a Federal Circuit Court in that State: "Most people know that these gentlemen get very handsome salaries and they know also from the sweat of whose brows it comes; they know more than this, they know whose right it is to call them to account for their malpractices. The Government will be found expensive enough under the most economical administration. But to lavish the time and property of the citizens unnecessarily is what they cannot nor will not submit to." National Gazette, May 11, 1793.
- ↑ Amer. State Papers, Misc., I, No. 32.
- ↑ Charles Carroll wrote to John Henry, Dec. 16, 1792: "Please to inform me as soon as you can what alterations of the judicial system are in contemplation. I have heard it rumored that the State Judges are to be made Judges of the United States within the jurisdiction or boundaries of each State, and the Supreme Court to be sedentary at the seat of Congress. Such a system will never answer." Life of Charles Carroll of Carrollton (1898), by Kate Mason Rowland.
- ↑ See letter of Egbert Benson to Rufus King, Dec 18, 1793, reporting Jay's answer to a second request to run for Governor. King, I.
- ↑ King, I, letter of Jay to King, Dec 22, 1798. Other Federalists continued to urge the necessity of amendment of the judicial system, which, they said, "is defective throughout and wholly inadequate to its object." New York Daily Advertiser, Feb. 14, 1793. All the Judges united in an address to the President, Feb. 17, 1794, calling his attention again to defects in the Judiciary system. Amer. State Papers, Misc., I, 77.
1792. The first Circuit Court in Rhode Island after its admission to the Union was described in the Columbian Centinal, Dec. 22, 1790, and the Chief Justice's charge was termed "full of good sense and earning though expressed in the most plain and familiar style. ... At length have the mild beams of national Justice begun to irradiate the State and opened a dawn of hope for better times" ; see also Jay's "excellent charge" in Rhode Island, Mcu*achuseUt Spy, Dec. 15, 1791; charge of Jay in Vermont, Columbian Centinel, July 28, 1792. On Sept. 27, 1792, at a Circuit Court in Connecticut held by Judges Wilson and Iredell, Wilson "addressed an elegant and pertinent charge to the Grand Juiy in which he expatiated with great force and beauty of language upon the excellence of the institution juries", Connecticut Journal^ Oct. 8, 1792; American Daiiy Advertieer, May 15, 1792; charge of Judge Wilson at Providence, R. I., "replete with the purest principles of our equal government and highly indicative of his legal reputation", Providence Gazette, April 25, 1793 ; see also charges of Judge Wilson in full at Philadelphia, defining the Federal crimes, Pennsylvania Oazette, April 14, 1790 ; Columbian CenHnel, May 1, 1790 ; Maseachusettt Spy, Sept. 8, 1791 ; American Daily Advertiser, Feb. 5, 6, 9, 1793; charge of Chief Justice Ellsworth at Savannah, Ga., Connecticut Journal^ May 25, 1796.