SUPREME COURT, 1789–1801

On January 8, 1801, twelve days before President john adams appointed john marshall as Chief Justice, a Jeffersonian newspaper reported: " john jay, after having thru' decay of age become incompetent to discharge the duties of Governor, has been appointed to the sinecure of Chief Justice of the United States. That the Chief Justiceship is a sinecure needs no other evidence than that in one case the duties were discharged by one person who resided at the same time in England, and by another during a year's residence in France." The one in France was oliver ellsworth, sent there by President Adams as a special ambassador to negotiate peace. Ellsworth had recently resigned, and Jay, whose appointment as Ellsworth's successor had been confirmed by the Senate, had himself been the first Chief Justice, whom President george washington had sent to England to negotiate a treaty that bore Jay's name. The chief justiceship was no sinecure: although the Supreme Court then met for only two short terms a year, the Justices also served as circuit court judges, and riding circuit was extremely arduous. When Jay was offered the position again, he declined it because of the circuit responsibilities and because the Court had neither "the energy, weight and dignity" necessary for it to support the national government nor "the public confidence and respect."

Jay's judgment was harsh although the Court did have problems, some of its own making. All the Justices were Federalists; their decisions en banc or on circuit seemed partisan—pro-Administration, pro-English, or procreditor—and they presided at trials under the infamous Sedition Act, whose constitutionality they affirmed. But the Court was not responsible for most of its difficulties. It had no official reporter (alexander j. dallas's unofficial reports first appeared in 1798) and the press publicized only a few of the Court's decisions. The public knew little about the Court, and even members of its own bar were unfamiliar with its decisions. Nothing better symbolizes the nation's neglect of the Court than the fact that when the United States government moved to Washington, D.C., in late 1800, the Court had been forgotten. Not only did it lack a building; it had no courtroom. Congress hastily provided a small committee room in the basement of the Senate wing of the Capitol for the Court to meet.

The Court's beginnings were hardly more auspicious, however distinguished its membership. At its first term in February 1790 it had nothing to do except admit attorneys to its bar, and it shortly adjourned. It began as a court without a reporter, litigants, a docket, appeals, or decisions to make. It was chiefly an appellate court whose appellate jurisdiction scarcely matched the breadth of the judicial power of the united states stated in Article III. Congress in the judiciary act of 1789 had authorized the Court to review state court decisions that denied claims based on federal law, including the Constitution. Review was not authorized when the state court upheld a claim of federal right. The system of appellate jurisdiction thus permitted the Supreme Court to maintain federal law's supremacy but not its uniform interpretation. The Court's review of civil decisions of the lower federal courts was limited to cases involving more than $2,000 in controversy, and it could not review criminal cases from those courts. Congress had stingily authorized the Court to hear cases in its appellate capacity in order to keep it weak, to prevent centralization of judicial powers, to preserve the relative importance of state courts, and to insulate the Court from many matters that concerned ordinary citizens. For its first two years it heard no cases, and it made no substantive decisions until 1793. Its docket never got crowded. Dallas reported less than seventy cases for the pre-Marshall Court, and fewer than ten percent of them involved constitutional law. The Court was then first a common law court, second a court of admiralty and maritime jurisdiction.

Although its members were able, the pre-Marshall Court had difficulty attracting and keeping them. When Marshall became Chief Justice, only william cushing of the original six Justices appointed by Washington remained. Robert H. Harrison, one of the original six, was confirmed but declined appointment, preferring instead the chancellorship of Maryland. james iredell accepted Harrison's place, so that the first Court consisted of Chief Justice Jay and Justices Cushing, john blair, john rutledge, james wilson, and Iredell. Rutledge performed his circuit duties but had never attended a session of the Court when he resigned after two years to become chief justice of South Carolina. charles c. pinckney and Edward Rutledge declined appointment to John Rutledge's seat, preferring to serve in their state legislature. thomas johnson accepted that seat but resigned it in less than two years because circuit riding was too strenuous. william paterson succeeded him. The February 1794 term was Jay's last. That he reentered New York politics after negotiating jay ' s treaty says something about the Court's prestige at the time. So too does the fact that alexander hamilton preferred private practice to the chief justiceship. At that point, John Rutledge, who had quit the Court, applied for the post vacated by Jay. Washington appointed Rutledge, who attended the August 1795 term of the Court when it decided only two cases. The Senate, having reconvened, rejected him because of his opposition to Jay's Treaty. Washington offered the chief justiceship to patrick henry who declined it. The President then named Justice Cushing, whom the Senate confirmed; but he too declined, preferring to remain Associate Justice. In 1796, Oliver Ellsworth became Chief Justice but quit after four years. John Blair retired early in 1796 and Washington again had to fill a vacancy on the Court. After edmund randolph refused the position, samuel chase accepted. In 1798, Wilson became the first Justice to die in office. richard peters refused to be considered for the position, and John Marshall also declined. Adams then appointed bushrod washington, and after Iredell died in 1798, he appointed alfred moore, who resigned within five years. When Ellsworth resigned and Jay declined reappointment, even though the Senate confirmed him, Adams turned to Marshall. The rapid turnover in personnel during the Court's first decade did not ease its work or enhance its reputation.

Jeffersonians grumbled about the Court's Federalist constitutional theories, but Jay kept his Court out of politics and established its independence from the other branches of the government. That achievement and the Court's identification of its task as safeguarding the supreme law of the land kept the Court a viable institution, despite its many problems during the first decade, and laid the groundwork for the achievements of the marshall court.

Late in 1790, Virginia's legislature denounced as unconstitutional the bill for national assumption of state debts. Washington allowed Hamilton to send a copy of the Virginia resolves to Jay and to inquire whether the various branches of the government should employ their "collective weight … in exploding [Virginia's strict construction ] principles." Hamilton warned that Virginia had shown "the first symptom of a spirit which must either be killed or it will kill the Constitution of the United States." However, Jay, who privately advised Washington and drafted his proclamation of neutrality, recognized the difference between a judicial pronouncement and an extrajudicial one. The Court, strongly believing in the principle of separation of powers, would not express ex officio opinions except in judicial cases before it. Jay calmly declined the executive's invitation.

Similar principles motivated the Justices when confronted by Congress's Invalid Pensioners' Act of 1792 which required the circuit courts to pass on the pension applications of disabled veterans, subject to review by the secretary of war and Congress. Justices Wilson and Blair together with Judge Peters on circuit in the district of Pennsylvania, having refused to pass on an application from one Hayburn, explained their conduct in a letter to the President. They could not proceed because first, the business directed by the statute was not judicial in nature, there being no constitutional authority for it, and second, because the possible revision of the Court's judgment by the other branches of government would be "radically inconsistent with the independence" of the judiciary. In their circuits, Jay, Cushing, and Iredell similarly explained that a judicial decision must be a final decision. hayburn ' s case (1792), which was not really a "case" and in which nothing was judicially decided, was important because the Court, in Wilson's words, affirmed "a principle important to freedom," that the judicial branch must be independent of the other branches.

Similarly, Jay established another principle vital to the Court's independent, judicial, and nonpolitical character when he declined Washington's request for an advisory opinion. That request arose out of apparent conflicts between American treaty obligations to France and the Proclamation of Neutrality. The French commissioned privateers in American ports and established prize courts to condemn vessels captured by those privateers. Washington sought the Court's opinion on twenty-nine questions involving international law and treaty interpretation, in connection with the French practices. Jay, relying again on the principle of separation of powers, observed that the Court should not "extra-judicially" decide questions that might come before it in litigation. Thus, by preserving its purely judicial character, the Court was free to decide some of those questions when real cases posed them. From the beginning, the Court staked its power and prestige on its special relationship to the supreme law of the land, which it safeguarded, expounded, and symbolized.

The pre-Marshall Court also exercised the power of judicial review. The Justices on circuit quickly held state acts unconstitutional for violating the supreme law of the land. Jay and Cushing on circuit in the district of Connecticut held that that state, by adversely affecting debts owed to British creditors, had violated the treaty of peace with Britain; Iredell in Georgia and Paterson in South Carolina made similar decisions. The Justices held that United States treaties were superior to state laws. The Supreme Court confronted the issue in ware v. hylton (1796). With Iredell alone dissenting, the Court rejected the arguments of John Marshall, making his only appearance before the Justices, as counsel for the debtor interests of Virginia. He opposed "those who wish to impair the sovereignty of Virginia" and contended first that the Constitution had not authorized the Court to question the validity of state statutes and, second, that a treaty could not annul them. Seriatim opinions by Chase, Paterson, Wilson, and Cushing held otherwise.

In Clarke v. Harwood (1797) the Court ruled that Ware "settled" the question before it. Clarke was the Court's first decision against the validity of a state act in a case arising on a writ of error to a state court under section 25 of the Judiciary Act of 1789. Section 25 authorized the Court to reverse or affirm state decisions that denied rights claimed under United States treaties. Maryland's high court, relying on a state statute sequestering debts owed to British creditors, had barred a claim based on the treaty of peace with Britain. By reversing the Maryland court, the Supreme Court in effect voided the state act. However, the Court rarely heard cases on a writ of error to a state court. Indeed, it had not decided its first such case until shortly before Clarke. In Olney v. Arnold (1796) the Court had reversed a Rhode Island decision that misconstrued a revenue act of Congress. The Court's power of reviewing state decisions under Section 25 did not become controversial until 1814. (See martin v. hunter ' s lessee, 1816.) During the Court's first decade, judicial review of state legislation was uncontested, and it was exercised.

On circuit the Justices also struck down state acts as violating the contract clause of the Constitution. The first such decision occurred in 1792 in champion and dickason v. casey, which voided a Rhode Island state law. Given the hullaballoo in that state when its own judiciary was suspected of having voided a state act in trevett v. weeden (1787), the meek acceptance of the 1792 decision showed the legitimacy of judicial review over the states.

In hylton v. united states (1796) the Court for the first time determined the constitutionality of an act of Congress, ruling that an excise on carriages, not being a direct tax, was valid even if not apportioned among the states. Those hoping for the Court to hold the federal excise unconstitutional were Jeffersonians; they did not then or at any time during the Court's first decade challenge the legitimacy of the Court's power to refuse to enforce an unconstitutional statute. Until the debate on the repeal of the judiciary act of 1801 (see judiciary acts of 1802), scarcely anyone opposed judicial review, whether over state or over congressional legislation. Hayburn's Case in 1792 was misunderstood throughout the nation. Not only did Attorney General Randolph believe that the Court had annulled an act of Congress; so did Congress. The House established an investigating committee, "this being the first instance in which a Court of Justice had declared a law of Congress unconstitutional." Jeffersonians gleefully praised the Justices and hoped the Court would extend the precedent by holding unconstitutional other congressional legislation that promoted Hamilton's economic programs. Later, Jeffersonians in Sedition Act trials sought to persuade the Justices on circuit that they should declare the statute void. Repeatedly during the first decade, bills arose in Congress that provoked members in both houses to state that the Court should and would hold them unconstitutional. The way to the doctrine of judicial review announced in marbury v. madison (1803) was well paved, and the opposition to the Court's opinion did not derive from its assumption of a power to void an act of Congress.

Another major theme in the work of the Court during its first decade was nationalism. Once again, the Marshall Court built on what the Jay and Ellsworth Courts had first shaped. The early Courts helped vindicate the national character of the United States government, maintain the supremacy of the nation over the states, and keep the states from undermining the new constitutional system. On circuit duty the Justices frequently lectured federal grand juries, inculcating doctrines from the federalist, and these grand jury charges were well publicized in the newspapers. In one of his charges, Jay, in 1790, having declared, "We had become a Nation," explained why national tribunals became necessary for the interpretation and execution of national law, especially in a nation accustomed only to state courts and state policies. Circuit court opinions striking down state laws in violation of the contract clause or federal treaties preached nationalism and national supremacy. Many of the criminal prosecutions before the federal circuit courts during the first decade were connected with national suppression of the whiskey rebellion and the fries rebellion. Similarly, prosecutions under the Sedition Act were intended to vindicate the reputations of Congress and the President.

The development of a federal common law of crimes, expanding the jurisdiction of the national courts, fit the nationalist pattern. Whether the courts could try nonstatutory offenses was a question that first arose in Henfield's case (1793). Wilson maintained that an American citizen serving on a French privateer commissioned in an American port and attacking ships of England, with whom the United States was at peace, had committed an indictable offense under the Proclamation of Neutrality, the law of nations, and the treaty with England, even though Congress had not made his act a crime.

The same nationalist pattern unified several of the Court's opinions in cases dealing with various issues. In chisholm v. georgia (1793) the Court's holding, that its jurisdiction extended to suits against a state by citizens of another state, was founded on nationalist principles as well as on the text of Article III. Wilson, for example, began with the principles that the people of the United States form a nation, making ridiculous the "haughty notions of state independence, state sovereignty, and state supremacy." "As to the purposes of the Union," he said, "therefore, Georgia is not a sovereign state." Jay's opinion also stressed "the national character" of the United States and the "inexpediency" of allowing state courts to decide questions that involved the performance of national treaties. The denunciation of the Court for its "consolidation of the Union" and its "annihilation of the sovereignty of the States" led to the eleventh amendment, which was intended to nullify Chisholm.

In Glass v. Sloop Betsy (1794) the Court supported the government's neutrality policy by ruling that France, after capturing a neutral ship, could not hold or award her as a prize in an American port. Only the United States courts could determine the lawfulness of prizes brought into its ports, and no foreign nation controlled its admiralty law or could subvert American rights under international law. In Penhallow v. Doane (1795) the Court resolved an old dispute over the ownership of a prize. One party's claims relied on decisions of a New Hampshire court, the other's on a decision of a prize court established by the old Congress of the Confederation. Paterson, in the Supreme Court's principal opinion, upheld the lower federal courts, which had decided against the state court and claimed jurisdiction. No nation, he said, had recognized the states as sovereign for the purpose of awarding prizes. The old Congress had been the supreme council of the nation and center of the Union, he claimed, whose sovereignty was approved by the people of America and recognized by foreign nations. The federal courts succeeded to that sovereignty in prize matters. New Hampshire angrily remonstrated against the "destruction" of its sovereignty but the Court's ruling prevailed.

Its decision in Hylton v. United States gave life to the government's revenue powers. When the Court upheld federal treaties as paramount to state laws, in Ware v. Hylton (1796), Chase, in the principal opinion for the Court, indulged in fanciful nationalism when declaring, "There can be no limitation on the power of the people of the United States. By their authority the State Constitutions were made."

Other notable cases of the first decade were van horne ' s lessee v. dorrance (1794) and calder v. bull (1798), in which the Court laid the foundation for the judicial doctrine of vested rights, which it developed further in contract clause and higher law decisions during Marshall's chief justiceship. Although the Court was left out of the planning for the new national capital, it had been enunciating doctrines—of judicial review, national supremacy, and vested rights—that helped shape the United States and would in time make the judicial branch of government impossible to ignore.

Leonard W. Levy
(1986)

Bibliography

Currie, David P. 1981 The Constitution in the Supreme Court: 1789–1801. University of Chicago Law Review 48: 819–885.

Goebel, Julius 1971 Antecedents and Beginnings. Vol. I of the Oliver Wendell Holmes Devise History of the Supreme Court, ed. Paul Freund. New York: Macmillan.

Haines, Charles Grove 1944 The Role of the Supreme Court in American Government and Politics, 1789–1835. Berkeley: University of California Press.

Henderson, Dwight F. 1971 Courts for a New Nation. Washington, D.C.: Public Affairs Press.

Warren, Charles 1923 The Supreme Court in United States History. Vol. I. Boston: Little, Brown.