The Supreme Court in the Early Republic

The Chief Justiceships of John Jay and Oliver Ellsworth

William R. Casto

• Publisher: University of South Carolina Press
• Year: 2012
• ISBN:
  9781611171693
• Topic: Law
• Subtopic: Courts
• Index: Law

William R. Casto sheds a new light on America's federal judiciary and the changing legal landscape with his detailed examination of the Supreme Court's formative years. In a study that spans the period from the Court's tentative beginnings through the appointment of its third chief justice, Casto reveals a judicial body quite different in orientation and philosophy from the current Supreme Court and one with a legacy of enduring significance for the U.S. legal system.

Casto portrays the founding of the Supreme Court as a conscious effort to help the newly established government deal more effectively with national security and foreign policy concerns, and he credits the Court with assisting the Washington and Adams administrations establish stable relationships with Great Britain and France. The initial debate over the Supreme Court's jurisdiction as well as over the method of selecting its justices is recalled here.

Casto also reveals the philosophical mindset of the first Supreme Court, contrasting the eighteenth-century concept of natural law with the legal positivism on which the Supreme Court now relies. Using this historical context, he addresses the political controversy over federal common-law crimes, the drafting of the Judiciary Act of 1789, and the adoption of judicial
review.

1

CREATING THE COURT

There was a fundamental ambivalence among the delegates who converged upon Philadelphia in the summer of 1787 to consider a new constitutional order for their loosely confederated states. Almost all of them wanted to create a more powerful general government. For example, virtually everyone at the Constitutional Convention agreed that under the Articles of Confederation, the Continental Congress lacked sufficient legal authority and fiscal stability to deal effectively with foreign affairs. Similarly, most of the delegates believed that the general government needed more power to remedy domestic problems implicating significant national interests. At the same time, however, many — probably most — of the delegates feared that a new and more powerful general government might abuse its new authority.

After the Convention, James Madison — with characteristic elegance and insight — forthrightly described the delegates’ dilemma:

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls or government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.¹

The delegates were especially concerned about the general government’s greatly expanded legislative authority and spent most of the summer searching for appropriate “auxiliary precautions” against the abuse of this new power. Obvious examples are the Grand Compromise, apportioning representation in the House and Senate, the provision securing the importation of slaves until 1807, and the abortive attempt to require a super majority vote for legislation regulating commerce.

When the delegates considered the new government’s judicial powers, the search for auxiliary precautions intensified. Indeed, the need for precautions against judicial abuse was especially acute because the federal judges’ life tenure effectively negated Madison’s “primary control” — periodic election by the people. As a result, much of the Convention’s deliberations on the judiciary involved a search for auxiliary precautions against judicial abuse.

THE FEDERAL COURTS’ SUBJECT-MATTER JURISDICTION

The most significant issues regarding the judiciary involved the extent of the national courts’ authority to adjudicate cases. In particular, there was significant disagreement among the delegates about the answer to two questions: what specific categories of judicial cases should be entrusted to federal determination, and should there be an extensive system of federal trial courts distributed throughout the nation? Everyone agreed that there should be a Supreme Court, and there was a consensus that the federal judiciary’s authority should extend to certain types of cases. But a serious effort was made to prevent the creation of an extensive federal judicial system with trial courts in each state. There was also significant initial disagreement over the specific categories of cases that should be entrusted to federal determination — what twentieth-century attorneys call federal subject-matter jurisdiction.

This legal concept of jurisdiction, then and now, does not refer to the substantive rules of law that are used to regulate society and to determine who wins or loses lawsuits. Instead, jurisdiction is a technical concept concerning the courts’ power to adjudicate particular categories of cases. As Alexander Hamilton explained, the word jurisdiction “is composed of JUS and DICTO, juris, diction, or a speaking or pronouncing of the law.”² In other words, a court without jurisdiction is without authority to speak or pronounce judgment in a case. If a claim is filed in a court without jurisdiction over that particular type of claim, the litigation must be dismissed for lack of jurisdiction. Such a dismissal is not necessarily a victory for the defendant; the dismissing court has simply refused to decide the case one way or another. The claim ordinarily may then be refiled in some other court that does have jurisdiction.

Although jurisdiction is an esoteric legal concept, it had enormous implications at the Philadelphia Convention because it involved the new federal government’s power to act directly upon American citizens. To the extent that the federal courts lacked jurisdiction to adjudicate cases implicating a national interest, the cases would have to be determined by state courts. Therefore questions of jurisdiction directly involved the allocation of power between the state and federal governments. Any expansion of the federal courts’ subject-matter jurisdiction would enhance the federal government’s ability to implement federal laws. Conversely, the simple device of limiting the federal courts’ jurisdiction could serve as an effective auxiliary precaution against abuse of the federal government’s extensive powers.

The delegates’ proposals on federal jurisdiction provide excellent clues to their collective reasons for establishing a federal judicial system. The Virginia delegation and Charles Pinckney of South Carolina each presented a plan on the Convention’s first working day. After about two weeks of debate on the Virginia Plan, a loose coalition of delegates opposed to the Virginians’ proposals presented the Paterson Plan. Finally Alexander Hamilton drafted his own plan but evidently did not make a formal submission. Although these plans sometimes covered different issues and were even in direct conflict, all four of them were drafted by men who eventually supported the Constitution that was finally adopted by the Convention.³

While there are considerable variations among the various plans’ provisions for the categories of cases that could be adjudicated by federal courts, the plans evidence a firm consensus on the need for federal jurisdiction over cases that involved foreign affairs and national security. Edmund Randolph of Virginia opened the Convention by bluntly stating that the general or federal government needed adequate authority to guard against foreign invasion and that these national security powers “could not be executed without money.” There may not have been a firm national consensus on this need for revenue, but there was certainly one among the delegates. Given the direct link between the fisc and national security, it comes as no surprise to discover that every plan urged the federal courts’ participation in the collection of federal revenues.⁴

In addition to revenue cases, all the plans sought to vest the federal courts with power over prize cases. This branch of admiralty law has long since disappeared, but it was important in the eighteenth century. These sui generis proceedings were usually commenced by privateers officially licensed by their country to capture commercial enemy vessels during times of war. When a privateer brought its capture to port, an admiralty court could condemn the seized property and award the privateer lawful ownership of the ship and cargo. This jurisdiction enabled admiralty courts to assist and regulate the privateering trade. The courts’ ability to regulate the trade was based upon their authority to protect the rights of neutral shippers by ordering the return of illegally seized ships and cargoes.⁵

The drafters of the four plans probably viewed prize litigation as sui generis proceedings implicating unique national security concerns and therefore insisted upon vesting the federal courts with specific jurisdiction over cases of capture. But prize cases were not the only litigation directly implicating the interests of aliens and foreign countries. The drafters of all four plans understood this and therefore provided for a more general jurisdiction over cases involving aliens. The Virginia, Paterson, and Hamilton plans would have created an express alienage jurisdiction by generally extending federal judicial power to all cases involving aliens. The Pinckney Plan more narrowly confined jurisdiction concerning aliens to all maritime claims (including but not limited to prize cases) and cases involving treaties or the law of nations. Although Pinckney’s categories were not expressly keyed to claims by or against aliens, maritime litigation and international-law cases usually involved the rights of aliens.

In referring to treaties and the law of nations, Pinckney undoubtedly had in mind two specific foreign affairs issues that had plagued the Confederation. The first issue involved a cause célèbre that had arisen four years earlier when the Chevalier De Longchamps, whom Thomas Jefferson described as an “obscure and worthless character,” assaulted a French diplomat in the streets of Philadelphia. A scandalized Jefferson wrote that the diplomat was “obliged … in his own defense to box in the streets like a porter.” Even worse, after De Longchamps was arrested and released on bail, he began sending the French ambassador anonymous letters containing assassination threats.⁶

The De Longchamps Affair was a national sensation that attracted the concern of virtually every public figure in America. The international community was outraged and demanded that the Continental Congress take action, but under the Articles of Confederation the Congress lacked authority to deal directly with De Longchamps. Eventually he was successfully prosecuted by the state of Pennsylvania for his flagrant violation of the diplomatic immunity accorded foreign embassies under the law of nations. The Affair clearly demonstrated the Continental Congress’s impotence to remedy violations of the law of nations.⁷

In addition to high-profile but isolated incidents like the de Long-champs Affair, there was an ongoing and more serious foreign policy problem that all delegates to the Convention were familiar with. The provision in Pinckney’s Plan vesting the federal courts with power over cases involving treaty violations and the more general alienage provisions in the other three plans were undoubtedly drafted to enhance the enforcement of the Treaty of Paris that had concluded the Revolutionary War. In Article IV of the Treaty, the United States had pledged that British creditors “shall meet with no legal impediment to the recovery of the full value in sterling money of all bona fide debts heretofore contracted.” This article was designed to rescind economic measures adopted during the Revolutionary War by the rebelling states. As part of the war effort, the states successfully encouraged American debtors to suspend their payment of debts to British merchants. British creditors were barred from suing in American courts, and statutes were enacted to confiscate British debts or authorize American debtors to discharge their British debts by paying depreciated paper money into state treasuries. Article IV was inserted in the Treaty to remedy harm to British merchants by guaranteeing them an ordinary judicial remedy free from the legal impediments that had been enacted during the war.⁸

But after the war, many American debtors — particularly in the South — continued refusing to pay their debts. Moreover, the legislatures and courts in several states ignored the Treaty and, through their construction of the law and other means, overtly cooperated with this ongoing delinquency. In some states the courts remained closed to British creditors. Another legislative strategy was to place severe limitations upon the enforcement of any judgments that a British creditor might obtain. Even without these formal impediments, juries frequently refused to return verdicts favoring British creditors. Years later, Chief Justice Marshall recalled, “The fact was notorious that it was the general opinion of [Virginians] and of the juries that a British debt could not be recovered.” As long as local debtors had significant control over the courts, there was no real possibility that these debts would be recovered.⁹

This ongoing delinquency had direct national security consequences. Under the Treaty of Paris, the British had agreed to evacuate their military posts that dominated the northern borders of the United States from Vermont to Detroit. The British, who wanted to retain control of the lucrative fur trade and who still smarted from their military defeat, insisted that the failure of the United States to comply with Article IV justified continued British occupation of the posts. “What a misfortune it is,” wrote George Washington to John Jay, “that Britain should have so well founded a pretext for its palpable infractions!”¹⁰

Notwithstanding apparent agreement upon the key issues of revenue collection, prize litigation, and alienage cases, there was a serious and fundamental disagreement between the Virginia Plan and the other plans. In addition to vesting the federal judiciary with jurisdiction over these key issues, the Virginia Plan called for federal jurisdiction over cases in which “citizens of other states … may be interested.” Finally, and as a general backstop, the Virginians sought to vest the federal courts with a general jurisdiction over “questions which may involve the national peace and harmony.” These expansive proposals were clearly designed to facilitate, rather than to limit, the use of a federal judiciary to implement national laws and policies.¹¹

The Virginians envisioned a federal government in which representation in the national legislature would be based entirely upon state populations, and therefore they trusted that the new government...

Table of contents

• Cover
• Title Page
• Copyright
• Dedication
• Contents
• Editor’s Preface
• Preface and Acknowledgments
• Repository Symbols
• Short Titles and Abbreviations
• Introduction
• 1 Creating the Court
• 2 The Judiciary Act of 1789
• 3 Selecting the Justices and Initial Operations
• 4 A National Security Court
• 5 National Security and Federal Criminal Law
• 6 Nonjudicial Activities
• 7 The Constitution and State Sovereignty
• 8 The Court and the Constitution
• 9 An Assessment
• Table of Cases
• Index