The History of the Supreme Court of the United States: With Biographies of ...

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Preface

OWING to the continued demand for this work the publishers have issued this new Edition in which the biographical sketches of the Justices, and references to leading and notable cases are brought down to the present time, inclusive of the Tariff Insular Cases.

The official reports of the Supreme Court of the United States, in many volumes, covering thousands of pages, embrace cases upon questions of exceeding interest and importance. The reader will find these mentioned in the text and will observe that the citation of them has been brought down to date, and that biographical sketches of all the Justices appear in their proper places, prepared from authentic data, accompanied by their portraits, etched from paintings or photographs, copies of each of which, the author, with much effort, obtained.

The portraits have been etched by the well-known artists of Philadelphia, Max Rosenthal and Albert Rosenthal, who suggested the idea of illustrating the text, and whose knowledge, judgment, taste and skill iti the execution of portraits of distinguished Americans are familiar to all collectors and historical students.

The subject has been treated chronologically. Topics and doctrines illustrative of different phases of our national growth are presented in the exact order of their occurrence and in natural sequence, displaying each epoch in contrast with those which precede and follow it, thus affording convenient opportunities of introducing at intervals, and not in mass, biographical sketches of the Judges. Spirit, movement and variety are thus sought to be imparted to the narrative, and the activity of the Court as a powerful agent in promoting our development as a nation portrayed.

It was found necessary in dealing with fifty-eight distinct subjects of biography, to guard, on the one hand, against constant repetition of matter arising from the fact that many judges

PREFACE.

participated as colleagues in the determination of leading cases, and, on the other, against the arrangement common to biographical dictionaries, which, if observed, would have brought all the pictures together in the middle of the book. It was found that any discussion of the cases based upon the order of subjects as presented by the Constitution of the United States would result in a treatise upon Constitutional Law, for which there was no room, the field being already occupied by the Commentaries of Mr. Justice Story, Professor Pomeroy's "Constitutional Law," Judge Cooley's work on "Constitutional Limitations," and other well-known and valuable text-books. The aim of the writer has been to present a History of the Court, and not a scientific treatise. By first tracing the sources of the jurisdiction conferred by the Constitution upon the highest court in the nation, and examining into the meaning of the Third Article as interpreted by the words and publications of the framers, as well those of their friends as of their critics ; by following this with a perusal of the account of the organization of the Court, and the sketches of the men appointed to its bench, and then proceeding to a discussion of their work divided chronologically into natural epochs of development, the reader is enabled to glide down the stream of time, viewing men and their achievements in the exact order of their introduction to the scene, and thus enjoy a panoramic display of the growth of our Federal j urisprudence.

The writer desires to express his grateful acknowledgments to the Chief Justice and the Associate Justices of the Court for their active interest and sympathy, and for the contribution of important and authentic matter, as well as for permission to use the seal of the Court as a device upon the covers of the book.

The work, in two volumes of convenient size, contains an unbroken history of the Court from its origin to the present, and is presented in a form, which it is believed will make it serviceable to the law student as well as to the practitioner.

Philadelphia. 1902. H, L. C,

Contents

CHAPTER L

PAOB

General Introductory View

Part I. Sources Of The Jurisdiction Op The Supreme Court

OP THE UNITED STATES — 1680-1 774.

CHAPTER II. Introduction 23-38

Special Fitness of the Framers of the Constitution for their Work : Classification of Sources of Jurisdiction : Admiralty Cases : Colonial Vice-Admiralty Courts : Jurisdiction : Acts of Trade : Colonial Judges : Extension of Jurisdiction : Revenue Cases : Colonial Opposition : Remonstrance of First Continental Congress.

Chapter VI. Other Federal Courts 65-80

Courts for the Trial of Felonies and Piracies : Courts for the Determination of Controversies between the States as to Boundary, Territory and Jurisdiction : Controversies between Individuals Claiming I*ands under Grants of two or more States : Suit by an Individual against a State.

CHAPTER VII. Detects op the Ou> Judicial System 81-86

Instances of Judicial Feebleness on the part of Congress.

CHAPTER VIII. Defects op the Articles op Confederation 87-106

Want of a Federal Judicature : Views of Hamilton, Madison and others : The Federal Convention : Plans for a National Judiciary : Course of the Debate : Pinal Form of Plan Adopted.

CHAPTER IX. Objections Urged By the States 107-127

Answers thereto : Views of the State Judiciaries upon the Power of the Courts to Annul an Act of the Legislature : Scope and Purpose of Article Third in the Constitution.

CHAPTER X. The Judiciary Act op 1789 128-137

pafrate in Congress : Pinal Passage of the Act.

CONTENTS. ix

Part III. The Supreme Court Of The United Statb8

CHAPTER XL

FAOE

Organization of the Court 138-167

Judges first appointed : Washington's letters : Biographical Sketcherof Jay, Rutledge, Cashing, Harrison, Wilson, Blair : First Session of the Supreme Court of the United States : Adoption of Rules : Sketch of Iredell : Circuit Court Duties : Suits by Citizens against a State : Sketch of Thomas Johnson : Hayburn's Case : Assertions of Judicial Independence : State Trials.

Chapter XII

Early Decisions upon Constitutional Questions : Admiralty Causes : Matters of Practice Changes upon the Bench : Sketches of Paterson, Ellsworth, Chase, Washington, Moore Changes in the Chief Justiceship : Instances of Politico-Judidalism : Judicial Pluralist* Estimate of the Services of the old Supreme Court.

Chapter XIII

The Supreme Court of the United States under Chief Justice Marshall : The First Half of Marshall's Judicial Career : Sketch of Marshall : leading Decisions : Marbury v. Madison : Repeal of the Judiciary Act of 1801 : The Midnight Judges : Impeachments of Judge Pickering and Justice Chase : Cases considered by the Court : Instances of Federal Supremacy : Growth of Federal Power : United States' v. Judge Peters : Trial of Aaron Burr : Rulings upon the Law of High Treason : Fletcher v. Peck : Uw of Prise and Admiralty Jurisdiction : Cases of the " Exchange " and the " Nereide " Land Cases : Sketches of Justices William Johnson, Livingston, Todd, Duvall and Story : The Early Bar of the Supreme Court.

Chapter XIV

The Latter Half of Marshall's Career : The Golden Age of the Supreme Court : Appellate Jurisdiction of the Supreme Court under the 35th Section of the Judiciary Act : Martin v. Hunter's lessee : Cohens v. State of Virginia : The Term of 1819 : McCulloch v. State of Maryland : Trustees of Dartmouth College v. Woodward : Sturges v. Crowninshietd : Osborn v. Bsnk of the United States : Power of Congress to Regulate Commerce : Gibbons v. Ogden : Wilson v. Blackbird Creek Marsh Co. : Brown v. State of Maryland : Constitutional Restrictions upon the Powers of the States : Craig v. State of Missouri : Position and Influence of the Supreme Court : Rights of the States : Providence Bank v. Billings : Barron v. Mayor of Baltimore : Power of States to pass Bankrupt Laws : Ogden v. Saunders : Boyle v. Zacharle : What Constitutes a State : Cherokee Nation v: State of Georgia : Worcester v. State of Georgia : Last Constitutional Decision of Marshall : Death of Marshall : Principles of Constitutional Interpretation : Sketches of Justices Thompson, Trimble, McLean, Baldwin and Wayne : General Review of the Work accomplished by the Supreme Court under Marshall.

CONTENTS.

Chapter XV. Page

The First Half of Taney's Judicial Career : General Character of Questions Discussed : Sketch of Chief Justice Taney : Sketches of Justices Barbour, Smith, Catron, McKinley and Daniel : Reading Cases : Change in the Principles of Constitutional Interpretation : State of New York v. Miln : Briscoe v. Bank of the Commonwealth of Kentucky ; Charles River Bridge Case : limitations upon the Doctrine of the Dartmouth College Case : lament of Justice Story : Miscellaneous Cases : Kendall v. United States : Rhode Island v. Massachusetts : Corporation Cases : Imitations upon the Powers of the States : Florida Land Claims : Martin v. Waddell : Swift v. Tyson : The Establishment of the Doctrine of a General Commercial Jurisprudence : The Fugitive Slave I«aw : Prigg v. Commonwealth of Pennsylvania : Cases Relating to Slavery : Miscellaneous Cases : The Girard Will Case : The Myra Clark Gaines Case : Cases of Inter- State Commerce : The license Cases : The Passenger Cases : Admiralty Cases : Waring v. Clarke : Cases Affecting the Relations of the State to the Union : I«uther v. Borden : General Review of Work Accomplished by the Court at this Time : Sketch of the Bar of the Supreme Court.

ILLUSTRATIONS.

Pacing page

John Jay Frontispiece

Prom the original painting by Gilbert Stuart in the possession of the family.

John Rutlbdgb 143

Prom the painting by Trumbull, in the Trumbull Collection, Yale School of Art.

William Cushing 144

Prom the Pastel by Sharpless, Philadelphia, 1799, in the possession of the family.

Robert H. Harrison 146

Prom the painting " Battle of Trenton," by Trumbull, Yale School of Art.

James Wilson 149

Prom the miniature in the possession of the family.

John Blair 151

Prom the miniature in the possession of the family.

Jambs Irbdbll 154

Prom the painting in the possession of Iredell Meares, Bsq., Wilmington, N. C.

Thomas Johnson 156

Prom the painting by Guillaume, after R. Peale, in the possession of Bradley T. Johnson, Esq., Baltimore, Md.

William Patbrson 181

Prom the painting in the possession of the family.

Oliver Ellsworth 183

Prom the Pastel by Sharpless in the possession of Mr. Justice Gray.

Samuel Chase 186

Prom the painting by C W. Peale, Independence Hall, Philadelphia.

Bushrod Washington 188

Prom the painting by Harding in the possession of the family.

Alfred Moore 192

Prom the miniature in the possession of Alfred Moore Waddell, Esq., Wilmington, N. C.

John Marshall 195

Prom the painting by Jarvis in the possession of Mr. Justice Gray.

William Johnson 227

Prom the painting by Jarvis in the possession of the New York Historical Society.

xi xii ILLUSTRATIONS,

Pacing page

Brockholst Livingston 229

Prom the painting in the possession of the family.

Thomas Todd 236

Prom the painting in the possession of the family.

Gabriel Duvall 238

Prom the painting in the Capitol, Washington, D. C.

Joseph Story 240

Prom the drawing by W. W. Story in the possession of the family.

Smith Thompson 273 l

Prom the painting by Dumont in the possession of Smith Thompson, Esq., Hudson, N. Y.

Robert Trimble 275

Prom the painting in the possession of the family.

John McLean 277

Prom the painting by Ives in the possession of Mr. Justice Brown.

Henry Baldwin 284

Prom the painting by l«ambdin in the possession of the family.

James M. Wayne 286

Prom a photograph by Brady in the possession of Mr. Justice Field.

Roger B. Taney 291

Prom the painting by Healy in the Capitol, Washington, D. C.

Phiup P. Barbour 295

Prom the painting in the possession of the family.

John Catron 298

Prom the painting in the possession of the Tennessee Historical Society, Nashville, Tenn.

John McKinley 302

Prom the painting in the possession of Mrs. Mary McKinley Pilley, St. I^rois, Mo.

Peter V. Daniel 304

Prom the original painting in the possession of the family.

A HISTORY

OP TXI8

Supreme Court of the United States.

Chapter I. General Introductory View

A HISTORY of the Supreme Court of the United States, although chiefly of interest to the legal profession, cannot fail to contain much matter that will prove attractive to the general reader. It relates to one of the three great Departments of the National Government. It will involve not only an account of the establishment and organization of the tribunal itself, the development of its authority, and the manner in which its great powers have been exercised, but also an exploration of the sources of its jurisdiction to the earliest period of our national life. The former can be drawn from the inexhaustible mines of wealth to be found in the public records ; the latter can be traced to the judicial powers exercised by the Continental Congress through the agency of Committees, and finally through the first Federal Court of Appeals, established January 15th, 1780, known as The Court of Appeals in Cases of Capture. 1

1 The records referred to consist of the Debates in the Federal and State Conventions which preceded and followed the Framing of the Constitution of the United

States, generally known as Elliott's Debates on the Federal Constitution (4 vols.) and

Such a history will involve also a consideration of many of the phases of our social and political existence. Just as the student of English Constitutional History finds in the trials of Raleigh, Strafford, Sydney, Russell, the Seven Bishops and other martyrs and patriots, the most striking examples of civil and religious polity, so the student of our history will discover, in the State Trials of the United States and in decisions upon fundamental Constitutional questions, the most faithful pictures and the most authentic memorials of the temper, the manners, the politics and the sentiments of the age. In the almost-forgotten case of the Sloop Active we can trace the successive features of a notable struggle for federal supremacy, through a period of thirty years, marked by the most dramatic incidents; exhibiting in its inception the political imbecility of the Continental Congress when brought into conflict with the power of a State, and in its final issue the complete and triumphant vindication of National authority. In the prosecutions brought under the Alien and Sedition Laws; in the trial of Henfield for illegally enlisting in a French privateer; or of Callender, indicted for a libel upon President Adams; in the trials of the Western Insurgents for insurrection against the excise laws; in the case of Robbins, on a claim for delivery to the British Government on a charge of murder; of Aaron Burr for high treason; of Mr. Justice

Supplement, containing the Madison Papers ; Pennsylvania and the Federal Constitution ; Maclay's Debates in the First Senate of the United States ; Benton's Abridgment of Debates of Congress ; Revised Statutes of the United States ; Statutes at Large; Records of the Supreme Court of the United States; Reports of the Decisions of the Supreme Court of the United States; Journals of the Continental Congress ; Articles of Confederation ; Secret Journals of Congress ; MS. Papers of the Continental Congress in the Library of the State Department ; MSS. in the Office of the Clerk of the Supreme Court of the United States; Colonial Records and early State papers.

Chase, impeached for misconduct as a Judge ; in the famous case of Marbury v. Madison; in the Dartmouth College case; in Gibbons v. Ogden; in the Dred Scott decision, in the Slaughter House cases, and in the Legal Tender cases, we find abundant material from which important facts of history can be drawn. These cases lie at the foundation of our jurisprudence and are destined to guide and control the most distant posterity.

Such a work will mingle the features of biography with a narrative of momentous events, portraying the character of famous judges and advocates, displaying the talents and learning of the sages of the law, while describing the scenes in which they were conspicuous actors. It will exhibit the birth, growth and decay of customs, the abolition of ancient institutions and the extension of maxims of free government to all the affairs of citizenship. It will delineate, on the one hand, the attitude of States in moments of defiance to National authority, or in the hour of their final resignation and defeat; and, on the other, will describe the limits of their independent and uncontrollable sovereignty. It will illustrate the conduct of individuals under an infinite variety of circumstances, while depicting the common phases of litigation.

In fact, the Court stands in such close relationship to the political and private rights of individuals in defending them from assault, and plays such an important part in defining our national obligations, and in determining the lawful bounds of State and Congressional authority under the Constitution of the United States, that no careful student of our institutions, who desires to comprehend the exact nature of his status as a citizen of our Federal Republic, will rest content with an examination of the debates in Congress or the administrative acts of the Presidents. For fullness and completeness of knowledge, for breadth of view and accuracy of information, for the true construction and interpretation of our Great Charter, he must turn to the decisions of the Judiciary which illuminate with steady and effulgent rays the history of the nation. The law embodies the story of a nation's development, and this truth has been recently dwelt upon by an eminent teacher of legal science, who declares : "The student of law in our times has come to recognize the fact that law is, in a sense, a branch of history, and is to be studied in a historic spirit and by a historic method; and as the student of law now recognizes the relation which exists between law and history, so also has the student of history come to recognize that a certain relation subsists between history and law." 1

If we divide our Constitutional history into periods marked by the War of the Revolution, the chaos and dismay that preceded the Framing of the Constitution, the Organization of the Government, the early Presidential administrations, the War of 1812, the term of Marshall's judicial service, the subsequent ascendency of State Rights, the agitation upon slavery, the Civil War, and the days succeeding those of Reconstruction, we will find subjects furnished for judicial action which stamp with characteristic variety the periods themselves. We may expect, therefore, to discover in the decisions of the Federal Court of last resort not only the result, but an account of the many processes of our national development. We may gaze upon a panoramic view of our Constitutional jurisprudence, unfolding itself in executive acts

1 Professor Henry Wade Rogers in his " Introduction to a Course of Lectures before the Political Science Association of the University of Michigan, upon The Constitutional History of the United States as seen in the Development of American Law."

PROMINENT FEATURES. 5

and legislative policies, affecting both our foreign and domestic relations, revealing the extended domain of the law, and displaying, as on a chart, as did the Pillars of Hercules in ancient times, the ultimate limits of national jurisdiction. Within these are the coast lines and harbors and rich possessions of individual right.

Much material will be found full of fascination for the student of mankind. The contentions and conduct of men, whether springing from avarice or enterprise, whether stained with blood or stamped with the features of commercial competition, present a picture of society full of life and color, varying with the habits of thought and action of the age in which they occur, and dramatic in their grouping and character. The mighty contests of the forum deal with principles of universal application and facts of thrilling interest; they elicit the most astonishing displays of eloquence, logic and learning, and are followed by decisions of profound significance pronounced by jurists of incorruptible integrity, and of abilities which have commanded the respect of the world. They exhibit theatres of human action which, like many famous fields of battle, are memorable for the triumph of truth over error, for hard- won victories of justice over wrong. Amid the din of conflict between personal interests, and above the deep-mouthed thunder of the combat between contending sovereignties, the calm tones of our great tribunal have been distinctly heard, commanding States as well as citizens to submit without the spilling of blood to a legal settlement of differences. In this respect the Court is the Conservator of the Peace of the Nation, and her voice is the Harmony of the Union.

The manner, too, in which the Court is constituted is worthy of the closest attention. It was one of the sagacious utterances of Edmund Burke that, "Whatever is supreme in a State ought to have, as much as possible, its judicial authority so constituted, as not only to depend upon it, but in some sort to balance it. It ought to give security to its justice against its power. It ought to make its jurisdiction as it were something exterior to the State." It may be safely asserted that this has been accomplished, in a great measure, in the judicial system of the United States. The dream of the philosopher has been realized. A separation almost complete has been effected between the judicial and the legislative and executive departments of our government. The wisdom of such a separation, first definitely expressed by Montesquieu, has been finally vindicated. In the making of laws the Judiciary has no share, nor has it any part in executive power. The happy manner in which the Framers of our Federal Constitution secured the independence of the Judiciary, — by the mode of appointment of the Judges, by making their tenure of office dependent upon good behavior, by the provision that the compensation of the Judges shall not be diminished during their continuance in office, thus emancipating them from the control of the Legislature, and from the temptation of making their decrees a matter of barter, — has excited the admiration of all philosophical students of our institutions. 1

The establishment of the Supreme Court of the United States was the crowning marvel of the wonders wrought by the statesmanship of America. In truth the creation of the Supreme Court with its appellate powers was the greatest conception of the Constitution. It embodied the loftiest ideas 4

1 Francis Lieber, "Civil Liberty and Self-Government," Woolsey's Edition, p. 203. Story's "Commentaries on the Constitution," Vol. Ill, \ 1571 etseq*

FUNCTIONS OF THE COURT. 7

of moral and legal power, and although its prototype existed in the Superior Courts established in the various States, yet the majestic proportions to which the structure was carried became sublime. No product of government, either here or elsewhere, has ever approached it in grandeur. Within its appropriate sphere it is absolute in authority. From its mandates there is no appeal. Its decree is law. In dignity and moral influence it outranks all other judicial tribunals of the world. No court of either ancient or modern times was ever invested with such high prerogatives. Its jurisdiction extends over Sovereign States as well as over the humblest individual. It is armed with the right as well as the power to annul in effect the statutes of a State whenever they are directed against the civil rights, the contracts, the currency or the intercourse of the people. It restricts Congressional action to Constitutional bounds. Secure in the tenure of its Judges from the influences of politics, and the violence of prejudice and passion, it presents an example of judicial independence unattainable in any of the States and far beyond that of the highest Court in England. 1 Yet its powers are limited and strictly defined. Its decrees are not arbitrary, tyrannical, or capricious, but are governed by the most scrupulous regard for the sanctity of law. It cannot encroach upon the reserved

1 This is admitted by Professor Bryce, who, in writing of the Supreme Court, says: "The justices are nominated by the President and confirmed by the Senate. They hold office during good behavior, t. e. f they are removed only by impeachment. They have thus a tenure even more secure than that of English Judges, for the latter may be removed by the Crown on an address from both Houses of Parliament Moreover, the English Statutes secure the permanence only of the Judges of the Supreme Court of Judicature, not also of Judges of County or other local Courts, while the provisions of the American Constitution are held to apply to the inferior as well as the superior Federal judges." (James Bryce, "The American Commonwealth/' Vol. I, p. 226.)

rights of the States or abridge the sacred privileges of local self-government. Its power is never exercised for the purpose of giving effect to the will of the judge, but always for the purpose of giving effect to the will of the legislature, or, in other words, to the will of the law. 1 Its administration is a practical expression of the workings of our system of liberty according to law. Its Judges are the sworn ministers of the Constitution, and are the High Priests of Justice. Acknowledging no superior, and responsible to their consciences alone, they owe allegiance to the Constitution and to their own exalted sense of duty. Instructed and upheld by a highly educated bar, their judgments are the ripest fruits of judicial wisdom. Amenable to public opinion, they can be reached, in case of necessity, by impeachment by the Senate of the United States. No institution of purely human contrivance presents so many features calculated to inspire both veneration and awe.

The peculiar nature of the jurisdiction of the Court requires the Judges to be statesmen as well as jurists, and in most instances, tested by the results, wisely and well have they acted. Their decisions are not confined to mere questions of commercial law or narrow municipal regulations, but may involve the discussion and settlement of principles which affect the policy and welfare of the nation. The Court cannot consider abstract problems, however important, nor can it frame a fictitious issue for argument to satisfy a speculative interest in the result. It cannot anticipate by an hour the solution of a practical difficulty. It deals with the present and the past; it cannot put the remedy in force before the right accrues; but given a question, fairly presented by

1 C. J. Marshall, in Osborn v. Bank of the U. S., 9 Wheaton, 866 (1834).

ILLUSTRATIONS OF JURISDICTION. 9

the pleadings in a cause, then, however humble the parties to the suit, or however trifling the amount involved, the decision may sweep beyond the petty bounds of local customs or sectional statutes into the broad domain of international law, or rise into the loftiest regions of Constitutional jurisprudence. The Court has always upheld the National character of our Government and vindicated the National honor. At the same time it has carefully guarded the reserved rights of the States. The most comprehensive and statesmanlike views have in the main happily prevailed.

A few illustrations will confirm this assertion. A British creditor sued a citizen of the United States upon a debt sequestered by the State of Virginia during the Revolutionary War, and the argument taxed to the utmost the powers of the ablest advocates, while the decision expanded from a statement of the contractual liability of an individual to an assertion that the treaty obligations of the nation were paramount to the laws of individual States. 1 A citizen of South Carolina sued the State of Georgia, and although the storm of indignation that followed the decision upholding the suit led to an amendment of the Constitution of the United States, yet it was fortunate for the independence and moral influence of the Court that the Judges refused to bend before the popular fury. 2 A justice of the peace of the District of Columbia applied for a mandamus addressed to the Secretary of State, to enforce his right to a commission, and the decision sustained and vindicated the power of the Court to declare void an Act of Congress, as being repugnant to the Constitution, subjecting, once and forever, all executive and ministerial officers as well as Congress itself to the control of the Court

1 Ware v. Hylton, 3 Dallas, 199 (1796). a Chisholm Exr. v. Georgia, 2 Dallas 419 ("793).

in expounding the fundamental law. 1 An individual holding lands under a patent granted by a State brought suit against a trespasser, upon the covenants in his deed, and a statute of the State which had been passed in violation of his private rights was hewn to the ground. 8 An humble institution of learning resisted the attempt of a Legislature to amend its charter without its consent, and the decision placed all charters within the protection of the Constitutional clause which forbids States to impair the obligation of contracts. 8 A local branch of the Bank of the United States objected to State taxation, and the power of a State to destroy an agency of the general Government was denied in an " opinion " which has proved to be a veritable bulwark of national authority. 4 The State of New York claimed the exclusive right to the navigation of the Hudson, and sought to confine it to her licensees, as a reward for the invention of propelling boats by steam. The decision destroyed the monopoly and emancipated the commerce of the nation from sectional control. 6 A State arrogated to itself the right to prohibit the transportation of merchandise from other States except on payment of toll or tribute, and the decision declared that inter-state commerce should be free. 8 Again a State endeavored to enforce a like prohibition with reference to the passage of citizens of the United States, from one part of the country to the other, through that State, and the decision upheld the personal right of unchallenged locomotion. 7 On numerous occasions the