1783-1815: Law and Justice: Overview

New Nation. Thomas Paine wrote on 19 April 1783, “The times that tried men’s souls are over and the greatest and completest revolution the world ever knew gloriously and happily accomplished.” The late eighteenth century was a time when many Americans tested the limits of their hard-won freedom, when notions of liberty were foremost in the minds of most civic-minded citizens. Thirteen British colonies had fought for their freedom and prevailed. Now loosely connected through the Articles of Confederation (adopted in 1782), the states were experiencing the benefits and challenges of independence. The Articles of Confederation established “a firm league of friendship” among the states. It soon became clear that the states needed a more unifying framework. The Constitution of 1787 marked a turning point in American legal history. The thirteen states formed a single republic, with some powers reserved to the states and other powers divided among three independent branches of a federal government. Sovereignty—the ultimate power to make decisions about the nature and form of government—was kept firmly in the hands of the people.

Need for Unity. James Madison saw the challenge of uniting “the minds of men accustomed to think and act differently.” Joining the thirteen former colonies together as sovereign states within a federal framework was a daunting task; so was the task of binding the people together. Twenty-five of the fifty-six men who signed the Declaration of Independence were lawyers. The membership of the first Congress included forty-six lawyers. Men whose cultural and religious backgrounds differed and whose colonial experiences varied widely on account of geographic and economic differences naturally looked to the law to establish a unifying set of rules for the conduct of society. The noted professor of law and jurist St. George Tucker explained that because “the genius of our government differs materially from that of Great Britain, and as our laws have undergone a variety of changes since the Revolution, … it will not infrequently happen that we must reject or controvert the doctrines of the [old common law].”

The Study of Law. A career in the law during this time was exclusively the privilege of white men. Most young men prepared for the law by reading and serving as an apprentice to an established lawyer. Apprenticeship was the primary pathway to the law and, combined with a rigorous reading program, amounted to what John Adams referred to as a “dreary ramble.” Eventually, university curricula and proprietary law schools emerged to compete with the apprenticeship program. In contrast to the craft training, which was the focal point of the apprenticeship program, these schools helped students develop practical skills as well as an understanding of legal theory, philosophy, and history. At the university level George Wythe and Tucker at the College of William and Mary and James Wilson at the College of Philadelphia led the way in the development of a uniquely American method of legal training. Wythe pioneered the use of moot courts and mock legislatures as part of his overall curriculum, while Wilson’s law lectures became a foundation for the development of a new, American legal framework. Tucker wrote a “Plan for Conferring Degrees on the Students of Law in the University of William and Mary” (1800) in which he set out his views on a proper approach to the study of law. Tucker required his students to attend law lectures for two years and to study history, ethics, and political philosophy. His edition of Sir William Blackstone’s Commentaries on the Laws of England (1803) became the most important legal tract of the early nineteenth century.

Americanization of the Common Law. When the first settlers came to colonize America, they brought with them a system of rules that had developed literally over centuries as the largely uncodified common law of England. This common law was the product of longstanding custom among a group of people, an expression of consensus designed to guarantee a measure of predictability in the administration of justice. The common law was the unquestioned cornerstone of the English legal system. Most lawyers in eighteenth-century America learned their profession in large part by reading the works of Sir Edward Coke and, later, Blackstone—the two great British exponents of common law theory. The common law was important to early American life because it helped assure a measure of order and stability. But, just as America eventually was compelled to assert its political independence, its legal community moved gradually but deliberately to develop an American system of law. In many states the first steps toward legal reform began with the adoption of state constitutions and the reform of land laws—and the explicit rejection of English laws and judicial rulings that followed the Revolution. The new constitutions were an important expression of independence and began the process of experimentation with new forms of governance. The idea of the separation of powers arose from these early state constitutions, a by-product of the revolutionary desire to limit executive power. Now it was a legislature of either one or two branches and made up of popularly elected individuals that made the laws. The executive branch was entrusted with the obligation of enforcing and carrying out legislatively mandated rule. The reform of land laws put an end to the old aristocratic rules of primogeniture (the descent of all land to the firstborn child) and entail (the legal requirement that prevented an heir and all his descendants from selling or dividing an estate). Another reform of the common law came with the relaxation of the rules of pleading, or the process of seeking relief in a court of law. Common law pleading developed into a rigid and complicated set of rules that often did not reflect the real needs of litigants. The common law pleading rules were needlessly technical and, in practice, highly unfair because the future of a legal claim was often decided not on the merits but rather on whether the claims and defenses were properly pleaded. True liberty required the fair dispensation of justice and the resolution of issues after the introduction of evidence at trial. The gradual relaxation of the strict rules of pleading to a more liberal “notice pleading” approach was an American innovation which helped democratize the justice systems by opening up access to the courts.

Judges. Not all changes in the law took place as a function of the new state and federal constitutions; much was happening at the local level. One significant development in the law that marked a departure from the common law was the gradual removal of power to decide the meaning of the law from the hands of jurors to the hands of judges. For many years the role of the judge was limited to making determinations about the merits of the pleadings. Juries were able to decide not only whose story was right, but also what the law was in each particular case. Judges rarely instructed juries on the law and almost never ventured to interpret the law. The power of juries to decide both the facts and the law worked well in the early colonial system where each colony, and, indeed, each community, often cohered to separate rules of religious belief and moral unity. The establishment and growth of a nation based upon the rule of law as established by elected state and federal legislatures ran contrary to a jury system that left the application of justice to the whim of each gathering of jurors. Judges, trained in the law, gradually took on the responsibility of integrating the statutes recently enacted by legislatures and instructing the jury as to the meaning and application of the law. As early as 1792 a South Carolina decision, Moore v. Cherry, affirmed the power of the judge to instruct a jury on the law and asserted that the power of a jury must be subordinate to the legislature. This movement eventually led to the contemporary practice of judges having power not merely to instruct juries on the law, but also to overturn a jury verdict that runs contrary to the law.

Lawyers. The law enabled people to resolve disputes, enforce agreements, and establish rules for social conduct. The everyday work of the lawyer in early America was focused on the basics: drafting wills, prosecuting or defending criminal cases, and collecting debts. Many lawyers made their living as land speculators and conveyors and as agents who would assist in the elements required for the sale of property such as searching titles and writing deeds. The collection of debt and recovery of lost property were substantial areas of legal work in the years after the Revolution.

British Law Rejected. Many lawyers entered public service as a natural extension of their legal training. Some legal scholars, notably Wythe and Tucker, believed such legal training was an essential element of a young man’s preparation for a career in public service. This view grew naturally out of the spirit of the Revolution, which held out the promise of unprecedented liberty for the people. The guardians of that liberty would be the citizens trained to lead and tutored in the philosophy of law and history. In the years following the ratification of the Constitution many states sought to make a clean break from the mother country by repudiating British laws. New York in 1788 enacted a law declaring that no British statutes “shall operate or be considered as laws” in that state. New Jersey in 1799 adopted a law that required that no law or legal decision made “in any court of law or equity in Great Britain” after 4 July 1776 was admissible in an American court of law. Kentucky in 1807 forbade any English rulings after 4 July 1776 from being “read or considered as authority” in court. During the Revolutionary War many states enacted laws requiring the confiscation of property abandoned by Loyalists. The collection of debts owed to British creditors was complicated by the provisions of the 1783 Treaty of Paris, which included an American promise to repay in full all debts owed to British citizens in British money. This was no small matter because Americans—mostly southern planters—owed about $28 million to British merchants. The state laws permitting confiscation and expunging debt came into conflict with the peace treaty. The seeds were sown for a clash between state sovereignty and national supremacy in foreign affairs. In a series of rulings the federal courts, and ultimately the Supreme Court, ruled that the new system of government required state laws to be subordinate to conflicting federal laws.

Federal Court System. The enactment of the Judiciary Act of 1789 established a federal court system led by a six-member Supreme Court with a circuit court system and several district courts. There were three circuit courts (Eastern, Middle, and Southern) and thirteen district courts. In its early years the Supreme Court had few significant cases before it. There was no precedent for how the justices should conduct themselves and no consensus on the proper role of the Court. As a result the judges turned to British custom for guidance. They wore powdered wigs and elaborate, colorful robes. They usually wrote separate legal opinions, so the Court rarely spoke with one voice. The Court also lacked forceful leadership. The first chief justice, John Jay, was largely occupied with foreign affairs as President George Washington’s minister to Great Britain. Jay resigned from the Court in order to serve as governor of New York in 1795. His successors, John Rutledge and Oliver Ellsworth, each had brief and undistinguished service on the Court. When John Adams offered Jay the position of chief justice again in 1801, he declined. Adams, who was about to leave office, turned to his secretary of state as his second choice for the post. Thus began John Marshall’s thirty-five-year career as chief justice. During those years Marshall defined a role for the Court that has guided American jurisprudence ever since. In particular Marshall established the Court as the final arbiter of the meaning of the Constitution. He also brought order to the Court, essentially ending the practice of a series of opinions on a single case and making the Court speak as often as possible with one powerful voice.

Circuit Court System. One of the provisions of the Judiciary Act of 1789 created a federal circuit court system and assigned each Supreme Court justice to one of three circuits. The Eastern Circuit comprised New York and all of New England. The Middle Circuit included Pennsylvania, Virginia, Delaware, Maryland, and New Jersey. The two Carolinas and Georgia made up the Southern Circuit. The responsibility to ride through a circuit was an enormous burden in days when transportation systems were primitive at best. The most consistent complaint recorded by these judges was the rigors of their circuit court responsibilities. The demands of office would ruin the health of several judges and, in part, cause John Jay to refuse reappointment in 1801. There was nothing glamorous about the life of a federal judge in this era. The power and role of the federal judiciary was in its formative stages and did not begin to take real shape until John Marshall began to give it shape in Marbury v. Madison (1803). The pay for federal judges varied. Chief Justice John Jay was paid $4, 000 a year for his services, but district court judges made substantially less. The salaries of the district court judges were different depending on where they sat. The district court judge for Delaware made $800, in comparison to his Kentucky district counterpart who made $1, 000 and his South Carolina colleague who made $1, 800. In part because of these low salaries, until 1812 district court judges were legally able to continue an active law practice to supplement their income. The circuit court system initially did not require appointment of additional judges. Each circuit court was manned by two Supreme Court justices sitting with the local district court judge. For the district court judge this role was an additional uncompensated duty. For the Supreme Court judges it was a physical burden because it required much travel under difficult circumstances. The genius of the circuit court system was the way in which it helped enforce a national judicial perspective. The idea that states could be combined into regional groups was itself an important way to introduce the new federal system and acclimate citizens to the reality that certain conflicts could not be resolved exclusively on a local scale.

Threats to Judicial Independence. The use of the law to threaten or diminish liberty was an unfortunate result of the jockeying for political power in the first years of nationhood. The manipulation of the law for political gain was perpetrated by leaders of both political parties. In an effort to reduce public criticism of their policies and leaders the Federalists enacted the Sedition Act of 1798, making it illegal to write or speak against elected public officials. When Thomas Jefferson assumed power in 1801, he and his Republican allies used the weapon of impeachment and removal from office to punish their political enemies. Several efforts were made to remove Federalist judges, culminating in the failed attempt to replace Associate Justice Samuel Chase. The country emerged from these misuses of power stronger. The real revolutions in the law were the peaceable passing of power from John Adams to Thomas Jefferson and Jefferson’s failure to defeat his political foes with charges of treason or the use of impeachment.

Revolts Against Federal Authority. The nation faced enormous challenges in its formative years. The concept of nationalism (a federal system that would unite all the states in a common effort) was not embraced with the same eagerness by all men. In particular, when the federal government sought to impose internal taxes or excises on the population in order to advance important national objectives, the rugged individualism of many self-appointed guardians of liberty clashed with the new federal power. In Pennsylvania western farmers revolted against an excise on whiskey. President George Washington was forced to call out armed forces to quell mob rule, which threatened federal authority. Later, President John Adams faced an antitax rebellion in eastern Pennsylvania when an auctioneer, John Fries, set out to free imprisoned tax evaders. In both cases the power of the new federal government was forcefully demonstrated, but at the price of harsh feelings that would linger for many years.

Publishing Court Decisions. The development of an American legal system was given an enormous boost by the publication of the first reports of judicial decisions. In 1789 a volume of reports of Connecticut decisions was published by Ephraim Kirby, who expressed the desire to contribute to a “permanent system of common law.” Similar reports appeared in Vermont in 1799 and in New York, New Jersey, and Massachusetts by 1810. In Pennsylvania Alexander Dallas published the state’s reports in 1790. His initial volume was a success, and Dallas published another one in 1793. The second volume included a more ambitious project: a complete report of the decisions of the U.S. Supreme Court. Dallas’s reports were published as an experiment; in 1804 William Cranch, the chief justice of the District of Columbia Circuit Court, took up where Dallas left off and published successive volumes of Supreme Court reports. Cranch understood the importance of a record of judicial decisions to the maintenance of “a government of laws.”