The Supreme Court in the Early Republic

William R. Casto

Description

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.

Sujets

• Judicial Branch
• American Government
• Courts
• POLITICAL SCIENCE
• Droit et juridique
• Law of the United States
• Ware v. Hylton
• United States v. Williams
• Courts plc
• Hylton v. United States
• First Continental Congress
• Legislative history
• Federal-question jurisdiction
• Federal common law
• Judicial interpretation
• United States federal judge
• Hollingsworth v. Virginia
• Ratification
• Ex post facto law
• Constitutional amendment
• Federal government of the United States
• Jay Treaty
• Cohens v. Virginia
• Judiciary
• Trial de novo
• Central
• LAW
• Oliver Ellsworth
• Instrument de ratification
• Earl Warren
• Habeas corpus

Informations

• Publié par: University of South Carolina Press
• Date de parution: 01 novembre 2012
• Nombre de lectures: 1
• EAN13: 9781611171693
• Langue: English

Extrait

The Supreme Court in the Early Republic
The Chief Justiceships of John Jay and Oliver Ellsworth
John Jay, in a portrait believed to have been begun by Gilbert Stuart, ca. 1793, and completed by John Trumbull, ca. 1806. Oil on canvas (NPG. 74.46, National Portrait Gallery, Smithsonian Institution).

Oliver Ellsworth. Pastel on paper attributed to James Sharples, ca. 1796 (courtesy of Independence National Historical Park, Philadelphia).
The Supreme Court in the Early Republic
The Chief Justiceships of John Jay and Oliver Ellsworth


by William R. Casto
The University of South Carolina Press
CHIEF JUSTICESHIPS OF THE UNITED STATES SUPREME COURT
Herbert A. Johnson, General Editor
© 1995 University of South Carolina

Cloth edition published by the University of South Carolina Press, 1995
Paperback edition published by the University of South Carolina Press, 2012
Ebook edition published in Columbia, South Carolina, by the University of South Carolina Press, 2012

www.sc.edu/uscpress

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The Library of Congress has cataloged the cloth edition as follows:

Casto, William R., 1946–
The Supreme Court in the early republic : the chief justiceships of John Jay and Oliver Ellsworth / by William R. Casto.
p. cm. (Chief justiceships of the United States Supreme Court)
Includes bibliographical references and index.
ISBN 1-57003-033-2
1. United States. Supreme Court History 18th century. 2. Political questions and judicial power United States History 18th century. 3. United States Politics and government 1783–1809. 4. Jay, John, 1745–1829. 5. Ellsworth, Oliver, 1745–1807.
I. Title. II. Series.
KF8742.C36 1995
347.73’2609033 dc20
49-18750
[347.3073509033]
CIP
ISBN: 978-1-61117-169-3 (ebook)
for Pamela Collette Casto my beloved wife
CONTENTS
Editor’s Preface
Preface and Acknowledgments
Repository Symbols
Short Titles and Abbreviations
Introduction
1 Creating the Court
The Federal Courts’ Subject-Matter Jurisdiction
Judicial Appointments
Good Behavior and Compensation
Judicial Review
Nonjudicial Duties
Looking to the Future
2 The Judiciary Act of 1789
Drafting the Judiciary Act
Opposition to the Federal Courts
The Seeds of a Compromiss
Limiting the Supreme Court’s Jurisdiction
Federal Trial Courts: Admiralty Jurisdiction
Shaping the Compromise on Federal Trial Courts
The Congress Accepts Ellsworth’s Compromise
Congressional Instrumentalism
3 Selecting the Justices and Initial Operations
The First Nominees
Assessing Washington’s Nomination Criteria
4 A National Security Court
The Nootka Sound Crisis
Relations with France and Great Britain
The Neutrality Proclamation
The Treaty of Alliance and the Correspondence of the Justices
Admiralty Jurisdiction I: Glass v. The Sloop Betsy
The Jay Treaty I: Extrajudicial Service
The Jay Treaty II: The Rutledge Fiasco
Oliver Ellsworth and Samuel Chase
The Jay Treaty III: Advisory Opinions
The British Debt Cases
The Power to Tax
Admiralty Jurisdiction II: La Vengeance
La Vengeance: Majority Opinions and Chiefly Leadership
Admiralty Jurisdiction III: Restitution of Prizes
The Jay Treaty IV: Sale of Prizes
Bushrod Washington
The Quasi-War I: The Ellsworth Mission
Alfred Moore
The Quasi-War II: Bas v. Tingy
The Quasi-War III: Chief Justice Ellsworth Resigns
5 National Security and Federal Criminal Law
Political Grand Jury Charges
Common-Law Crimes
Enforcing the Law of Nations
Beyond the Law of Nations: The Worrall Case
The Problem of Seditious Libel
Federal Common Law and the Williams Case
The Williams Case and Interstitial Federal Common Law
Common-Law Crimes and Common-Law Thinking
Statutory Crimes: The Whiskey Rebellion
Statutory Crimes: Justice Chase on Circuit
6 Nonjudicial Activities
Ex-Officio Duties
The Invalid Pensioners Act
Advisory Opinions
A Pragmatic Approach to Nonjudicial Activities
7 The Constitution and State Sovereignty
Chisholm v. Georgia
The Eleventh Amendment
The Scope of the Eleventh Amendment
Suits by Foreign States
Suits in Admiralty
Enforcement of Federal Rights
The Federalists and the Eleventh Amendment
8 The Court and the Constitution
Judicial Review of Federal Actions
The Sovereignty of the People
Justice Chase’s Doubts
Interpreting the Constitution
Congressional Power to Restrict Jurisdiction
9 An Assessment
Table of Cases
Index
EDITOR’S PREFACE
The volumes in this series are intended to provide readers with a convenient scholarly introduction to the work and achievements of the Supreme Court of the United States for the period of one or more chief justiceships. An effort will be made to examine the Court’s personnel and administration and to summarize its contribution in constitutional law, international law, and private law.
While the periodization of the separate volumes follows the now well established historical tradition of focusing upon the chief justices, it should be emphasized that there is no intention to defend the doubtful thesis that the presiding officer of the Supreme Court is its dominant member. Custom and tradition assign certain administrative responsibilities to the chief justice, and it is these functions which distinguish his service from that of his associate justices. This institutional management role justifies our decision to divide the series into monographs delineated by chief justiceships. Leadership in the Supreme Court is predominantly a function of interpersonal relationships. The chief justice lacks authority to command obedience even in administrative matters. He must rely upon and cultivate the respect and deference that his associate justices are willing to accord him. Any scholarly attention to the role of the chief justice inevitably requires close examination of all relationships among the justices.
Professor Casto’s volume draws upon his extensive study of the Supreme Court in the earliest decade of its history, and more particularly upon his biographer’s knowledge of the life and career of Oliver Ellsworth, who was not only the third Chief Justice of the United States but also one of the prime architects of the Judiciary Act of 1789. It provides valuable insights into Court activities during the Federalist administrations of George Washington and John Adams. Until recently this has been a neglected period of Supreme Court history, largely eclipsed by the great changes in administration and jurisprudential direction introduced by Chief Justice John Marshall beginning in 1801. Publication of the manuscript collection of the Court’s earliest years is now underway, and this monograph’s many citations to those original sources evidences the great contributions being made by Dr. Maeva Marcus and her colleagues in the D OCUMENTARY H ISTORY OF THE S UPREME C OURT OF THE U NITED S TATES (DHSC). In addition there is a reawakening of interest in these early years of the Supreme Court, 1 as Professor Casto’s footnotes show quite clearly. It is hoped that this survey of these two important chief justiceships will generate even more scholarly research on this formative period.
Every historical period deserves to be studied on its own record and not to be judged through the jaundiced eye of hindsight. The Jay-Ellsworth Courts sought continuity with treasured English common law and established colonial practice. However, they also were keenly aware of the need to adapt those familiar institutions to accommodate new relationships in post-Revolutionary, and republican, America. As Professor Casto demonstrates, virtually every member of these Courts had seen judicial and/or legislative service in colonial America or in the alternative had practiced law in the King’s courts. Prominent in the political and professional life of their respective states, each brought localized preferences to his work on the Court. Despite their shared loyalty to the Federalist party, their views of federalism and their interpretations of the Federal Constitution were quite divergent.
Moving forward cautiously at first the Jay-Ellsworth Courts made a tentative start in construing the Constitution of the United States. Their most notable contribution, in Chisholm v. Georgia , 2 so violated pretensions of state sovereignty that it was overrruled by the Eleventh Amendment within two years of its decision. By way of contrast the Court’s 1796 decision in Ware v. Hylton 3 marked the Court’s premier position as the highest tribunal of international law within the American nation. Indeed it is in this field that the Jay-Ellsworth Courts made their major contributions. In an Atlantic world where international affairs were dominated by monarchial governments the new American republic badly needed the legitimacy that attaches to sound fiscal, commercial, and diplomatic policy. The Court’s close connection to international matters gained emphasis through the diplomatic assignment of Chief Justice Jay to the 1794 British mission and the subsequent dispatch of Chief Justice Ellsworth to negotiate peace terms with France from 1799 to 1800.
It is remarkable that there is surprisingly little evidence of close friendships or political affinities between the Supreme Court judges who served during this time period. Apparently neit