WASHINGTON, BUSHROD (1762–1829)

Bushrod Washington served on the United States Supreme Court for thirty-one years, but he did not hand down many important decisions. Lacking the analytical sweep of john marshall and the erudition and energy of joseph story, he invariably supported their opinions which strengthened the power of the central government and encouraged the development of the economy. In fact, he was so closely allied with Chief Justice Marshall that another Justice on that Court, william johnson of South Carolina, observed that the two "are commonly estimated as a single judge."

Washington was well connected by birth. His mother came from a prominent Virginia family and his father, John, was a particularly close brother of george washington. He graduated from the College of William and Mary in 1778 and served in the Continental Army. After the war he studied law in Philadelphia under james wilson. Returning to Virginia in 1787, he was admitted to the bar and elected to the Virginia state ratifying convention, where he supported the adoption of the United States Constitution. Following this he practiced law in Richmond, where he developed a reputation for being diligent and extremely knowledgeable. Many young men, including henry clay, came to read law under his direction. During the 1790s he joined the Federalist Party, and in 1798 john adams appointed him to the Supreme Court. A short time later, as the "favorite nephew" of the former President, he became executor of Washington's will and inherited Mount Vernon and his uncle's public and private papers, which he made available to Marshall for his Life of George Washington.

Bushrod Washington was particularly effective and conscientious in the performance of his circuit-riding duties, especially when he presided over jury trials. His tact and sense of fair play allowed him to enforce the Sedition Act of 1798 in a number of cases without engaging in the partisan politics that made samuel chase and william paterson so controversial. His most famous circuit court decision came in the case United States v. Bright (1809). This was the treason trial of a general of the Pennsylvania state militia who had been formally authorized to resist the United States Supreme Court's decision in United States v. Peters (1809). Following a confrontation with a federal marshal, and after President james madison threatened to use force, the state eventually backed down, whereupon Bright and several other officers were arrested, tried, and convicted. (Madison eventually pardoned them on humanitarian grounds.) Bushrod Washington handled the trial, which took place in Philadelphia amid a highly charged atmosphere, with great skill, maintaining both decorum and the authority of the federal government. Sentencing Bright, he declared, "A State has no constitutional power … to employ force to resist the execution of a decree of a federal court, though such decree is deemed to have been beyond the jurisdiction of the Court to make.…"

Several other decisions rendered by Bushrod Washington are of interest. In a concurring opinion in dartmouth college v. woodward (1819) he tried to reign in some of the implications of Marshall's more sweeping decision. In green v. biddle (1823) he handed down what proved to be an unenforceable decision invalidating various Kentucky statutes adopted to protect settlers from absentee landlords. Finally, in ogden v. saunders (1827), he openly broke with Marshall, abandoned his own earlier circuit court decision in Golden v. Prince (1814), and declared that a state bankruptcy act that had a prospective application did not violate the contract clause.

Bushrod Washington died in Philadelphia on November 26, 1829.

Richard E. Ellis
(1986)

Bibliography

Blaustein, Albert P. and Mersky, Roy M. 1969 Bushrod Washington. Pages 243–257 in Leon Friedman and Fred L. Israel, eds., Justices of the Supreme Court, 1789–1969. New York: Chelsea House.