The Supreme Court in United States history

Front matter

V »

Qass_ > 1M56\ Book^

THE SUPREME COURT IN UNITED STATES HISTORY

Preface

This book is not a law book. It is a narrative of a section of our National history connected with the Supreme Court, and is written for laymen and lawyers alike. As words are but "the skin of a living thought ",* so law cases as they appear in the law reports are but the dry bones of very vital social, political and economic contests ; they have lost all fleshly interest. This book is an attempt to revivify the important cases decided by the Court and to picture the Court itself from year to year in its contemporary setting.

For those who wish a recital of the decisions and a collection of the biographies of the Judges, other histories of the Court are available (such as Hampton L. Carson's, prepared at the time of the Centennial of the Federal Judiciary). For those who wish a statement of the doctrines of constitutional law established in the long line of opinions of the Court, there are numerous technical law books to supply their needs. But for those who wish to view the Court and its decided cases, as living elements and important factors in the course of the history of the United States, there are few published works, other than Gustavus Myers' History of the United States Supreme Court (written from a purely Socialistic standpoint), and Albert J. Beveridge's masterly Life of John Marshall. (The

1 "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Holmes, J., in Towne v. Eisner (1918), 245 U. S. 418, 425.

vi PREFACE

chapters of my book covering the period described by Beveridge were completed before the publication of his work; they are written, however, from an entirely different standpoint, and without any attempt to rival his dramatic depiction of personalities.)

While the Court's history might be set forth more logically by tracing continuously the development of the doctrines established by the decided cases, I have purposely described it, Term by Term, in order that its decisions might be the better correlated, in the reader's mind, with the political events in the Nation's history. I have laid particular stress upon the views taken of the Court and of its important cases by contemporary writers and statesmen; for the impression made upon the public by the Court's decisions has often had as great an effect upon history as have the decisions themselves. At the same time, I have pointed out that contemporary appraisal of men and events is frequently mistaken, and that (as has been well said) destiny may laugh it to scorn. I have emphasized the important part which the attacks upon the Court have played; for such attacks have often affected or modified the status of the Court and of its decisions. In carrying out this plan of preserving, as far as possible, the atmosphere of the times, I have quoted with considerable fullness from articles and letters appearing in newspapers, magazines, and elsewhere. 1 While such a method of writing history tends to discursiveness and may offend some historical technicians, I have deliberately decided to run that risk.

1 In estimating the effect of newspapers upon public opinion, the reader must bear in mind that in the eighteenth century and for the first half of the nineteenth century, the editorials and articles of the Washington papers and the editorials and Washington correspondence of the leading New York, Boston, Philadelphia, and Richmond papers, dealing with the Court and its important cases, were widely copied and reproduced in newspapers throughout the country.

PREFACE vii

I have not attempted a detailed description of the Court and of its important cases later than the close of the Chief Justiceship of Waite. The succeeding thirty years of Chief Justices Fuller and White comprise a period so recent and so clearly within the view of living men as to render such detailed treatment unnecessary. Moreover, the proper historical perspective is lacking. Accordingly, I have given but a broad general outline of the leading cases and doctrines during the years 1888 to 1918.

No one can read the history of the Court's career without marveling at its potent effect upon the political development of the Nation, and without concluding that the Nation owes most of its strength to the determination of the Judges to maintain the National supremacy. Though, from time to time, Judges have declared that the preservation of the sovereignty of the States in their proper sphere was as important as the maintenance of the rights vested in the Nation, nevertheless, the Court's actual decisions at critical periods have steadily enhanced the power of the National Government; and the result has been that, as Edward S. Corwin has recently said in his John Marshall: "The Court was established under the sway of the idea of the balance of power. . . . The Nation and the States were regarded as competitive forces, and a condition of tension between them was thought to be not only normal, but desirable. The modern point of view is quite different. Local differences have to a great extent disappeared, and that general interest which is the same for all the States is an everdeepening one." It is interesting to surmise what would have been the status of the United States today, had the Judges, after appointment to the Supreme Bench, adopted or continued to hold the narrower

Vlll

PREFACE views of National authority and the broader views of the sovereignty of the individual States, which were undoubtedly held by most of the frarners of the Constitution. To untrammeled intercourse between its parts, the American Union owes its preservation and its strength. Two factors have made such intercourse possible — the railroad, physically ; the Supreme Court, legally. 1

In order to emphasize the subject-matter of this work, I have intentionally (and despite some modern purists in typography) used capital letters, in connection with the words "Court", " Bench" (when synonymous with Court), "Judge", "Judiciary", "Bar", "State-Rights" and "Nation", both in the quoted as well as in the original matter. 2 For conciseness, in referring to members of the Court, I have intentionally used the word "Judge", instead of the more technically accurate "Associate Justice."

As much new material has been gathered from unpublished MSS., I desire to acknowledge gratefully the courteous assistance which I have received from library officials, in connection with my use of the following MSS. collections : papers of George Washington, John Breckenridge, Harry Innes, John Marshall, Thomas Jefferson, James Madison, James A.

Bayard, James Monroe, Csesar A. Rodney, Joseph II. Nicholson, William Wirt, Smith Thompson, James

1 " If the system of internal improvements could go on for .1 few years with vigor . . . this Union would be bound by ties stronger than all the Constitutions that human wisdom could devise. A railroad from New England to Georgia would do more to harmonize the feelings of the whole country, than any amendments that can be offered or adopted to the Constitution. It is intercourse we want." So wrote Abbott Lawrence of Boston to Henry Clay, March 2G. Works of Henry Clay (1855), IV.

2 As the statesmen, letter writers and newspapers, from 1789 through the first quarter of the nineteenth century, used capital letters according to the wbim of the moment, and with no apparent logical system, I have preferred to preserve a uniformity of typography rather than an exact reproduction of their whims.

PREFACE

IX

Kent, John J. Crittenden, Martin Van Buren, Andrew Jackson, John McLean, John M. Clayton, Daniel Webster, Gideon Granger, Francis Granger, Thurlow Weed, Benjamin R. Curtis, and Franklin Pierce (in the Library of Congress) ; James Wilson, Richard Peters, and John Sergeant (in the Library of the Historical Society of Pennsylvania) ; papers of Joseph Story and Timothy Pickering (in the Massachusetts Historical Society) ; papers of William Paterson (George Bancroft copies) (in the New York Public Library) ; and papers of Charles Sumner (in the Harvard College Library).

I cannot expect entire freedom from mistakes in a book containing such a mass of detail and citation ; but I indulge in the hope that the reader, overlooking errors which "like straws upon the surface float", will emerge from the depths, bringing with him a new and enlarged conception of the Supreme Court's place in American history.

Charles Warren.

Washington, D. C-, March, 1922.

Contents

Preface

Abbreviations of Titles of Books Frequently Cited

PAGE

Chapter One

"It is perhaps not difficult to say which is the most arduous task, that of the Convention who framed the Constitution, or of the first Legislatures to whom it will appertain to mature and perfect so compound a system, to liquidate the meaning of all the parts, and adjust them to each other in a harmonious and consistent whole," said a Federalist pamphleteer in 1792 ; 1 and these words quaintly and accurately portrayed the task which was imposed upon the first Supreme Court, as well as upon the first Congress. That President Washington had a full comprehension of the responsibility which lay upon him in making the appointments to this first Court, and of the potent influence which the Court was to exercise upon the history of the country, was shown by his letter to his future Attorney-General, Edmund Randolph. "Impressed with a conviction that the true administration of justice is the firmest pillar of good government," he wrote, "I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system. Hence the selection of the fittest characters to expound the laws and dispense justice has been an invariable sub-

1 An Enquiry as to the Constitutional Authority of the Supreme Federal Court over the Several States in Their Political Character (1792), by a citizen of South Carolina (David Ramsay).

ject of my anxious concern." 1 Imbued with such belief in the high destiny of the tribunal, Washington had been considering possible candidates for appointment upon the Court, for some months before the passage of the Judiciary Act ; and the tests which he intended to apply to all appointments he had nobly set forth in a letter to Chancellor Livingston of New York, in the preceding May. "When I accepted of the important trust committed to my charge by my country," he had written, "I plainly foresaw that the part of my duty which obliged me to nominate persons to office would, in many instances, be the most irksome and unpleasing ; for, however desirous I might be of giving a proof of my friendship, and whatever might be his expectations, grounded upon the amity which had subsisted between us, I was fully determined to keep myself free from every engagement that could embarrass me in discharging this part of my administration. I have therefore declined giving any decisive answer to the numerous applications which have been made to me ; being resolved, whenever I am called upon to nominate persons for those offices which may be created, that I will do it with a sole view to the public good, and shall bring forward those who, upon every consideration and from the best information I can obtain, will in my judgment be most likely to answer that great end." And to Nathaniel Gorham, he had written: "The most delicate and in many instances the most unpleasing part of my administration will be the nomination to offices. . . . This consolation, however, will never quit me, that the interest of the American Union shall be the great object in view and that no means in my power shall be left untried to find out and bring forward such persons as have the best claims,

1 Washington, X, letter of Sept. 27, 1789.

upon every consideration are the most deserving and will be most likely to promote this important end." l On September 24, the day on which he affixed his signature to the Judiciary Act, Washington sent in to the Senate the names of his appointees to the Supreme Court of the United States constituted by that statute. Of all appointments to be made, that of Chief Justice of the United States was by far the most important and had given to the President the greatest concern. Rightly he felt that the man to head this first Court must be not only a great lawyer, but a great statesman, a great executive and a great leader as well. Many eminent names were presented to him.

Among the earliest and probably the most illustrious as a jurist was that of James Wilson of Philadelphia, who, on April 21, 1789, addressed himself to Washington as an aspirant for the place in the following interesting letter : 2

A delicacy arising from your situation and character as well as my own has hitherto prevented me from mentioning to your Excellency a subject of much importance to me. Perhaps I should not even now have broke silence but for one consideration. A regard to the dignity of the Government over which you preside will naturally lead you to take care that its honours be in no event exposed to affected indifference or contempt. For this reason, you may well expect that, before you nominate any gentleman to an employment (especially one of high trust), you should have

1 Washington Payers MSS, letters to Robert R. Livingston, May 31, 1789, and Nathaniel Gorham, May 7, 1789 ; see also Washington, X, letter to Edward Rutledge, May 5, 1789. To his nephew Bushrod Washington, who sought to be appointed United States Attorney, Washington wrote, July 27, 1789: "My political conduct in nominations, even if I were uninfluenced by principle, must be exceedingly circumspect and proof against just criticism, for the eyes of Argus are upon me, and no slip will pass unnoticed that can be improved into a supposed partisanship for friends or relatives."

2 This letter, hitherto unpublished, is in the Library of Congress ; see Calendar of Applications and Recommendations for Office under the Presidency of George Washington (1901), by Gaillard Hunt.

VOL. I — 2 it in your power to preclude him, in case of disappointment, from pretending that the nomination was made without his knowledge or consent. Under this view, I commit myself to your Excellency without reserve and inform you that my aim rises to the important office of Chief Justice of the United States. But how shall I proceed ? Shall I enumerate reasons in justification of my high pretensions? I have not yet employed my pen in my own praise. When I make those high pretensions and offer them to so good a judge, can I say that they are altogether without foundation ? Your Excellency must relieve me from this dilemma. You will think and act properly on the occasion, without my saying anything on either side of the question.

Friends of John Rutledge of South Carolina were insistent that his seniority and distinction in professional studies and his services to his country entitled him to the position. The name of Robert R. Livingston, the distinguished Chancellor of New York, was warmly urged, and his judicial career, as well as his service in bringing about the ratification of the Constitution in New York, warranted his appointment; but Livingston's aspirations fell afoul of the complicated situation in New York politics — that which John Adams in his old age used to term "the Devil's own incomprehensibles." For six months, a bitter fight had been waging between the faction headed by the Livingstons and Governor George Clinton (an Anti-Federalist) and the ultra-Federalists headed by Alexander Hamilton and General Philip Schuyler, over the choice of United States Senators ; the two houses of the Legislature had split over the method of election and over the choice of Rufus King, who was favored by Hamilton ; as a result, New York had been left unrepresented in the first session of the First Senate ; this" situation and Hamilton's antagonism rendered Livingston's appointment impossible. 1 John Jay, one of the leading expounders of the Constitution, then acting as Secretary of Foreign Affairs, and a close personal friend of Washington's, was said to have been offered the choice of retaining his position in the Cabinet or taking the Chief Justiceship. 2 That Alexander Hamilton might be offered the position was evidently gravely feared by some ; for a citizen of Maryland wrote to Washington as to rumors "that the Chief will not be a native of America. . . . Nine tenths of the best friends to America will ever be averse to a foreign Judge", and he expressed the hope that Robert H. Harrison, the Chief Judge of Maryland, would be appointed — "the best man in the Union for the head of the Judiciary, best calculated to inspire confidence and love among our people . . . though from his retired habits not so well known throughout America as many men of high character who perhaps are not near so perfect . . . his virtues and character are not hidden from the impartial President of the United States." 3

The President's decision finally fell upon John Jay of New York. "It is with singular pleasure that I address you as Chief Justice of the Supreme Court of the United States, for which office your commission is enclosed," wrote Washington. "In nominating you

1 See Hamilton (Lodge's ed.), VIII, 208, note; History of Political Parties in the State of New York (1846), by Jabez W. Hammond, I, 30, 36; Columbian Centinel, Oct. 24, 1801 ; The Livingstons of Livingston Manor (1900), by Edward E. Livingston, 332.

2 William Jay in his Life of John Jay (1873), II, 274, said: "The President's opinion of Mr. Jay's ability and disposition to serve his country induced him to ask his acceptance of any office he might prefer." Washington wrote to Madison, Aug. 9, 1789 : " I have had some conversation with Mr. Jay respecting his views to office which I will communicate to you at our first interview." Washington, X.

S. A. Otis wrote to John Langdon in Sept., 1789 : "The Keeper of the Tower is waiting to see which salary is best, that of Lord Chief Justice or Secretary of State." Letters of Washington, Jefferson and Others to Langdon (1880), 92.

^Washington Papers MSS, letter signed "Civis", Sept. 1, 1789.

for the important station which you now fill, I not only acted in conformity to my best judgment, but I trust I did a grateful thing to the good citizens of these United States ; and I have a full confidence that the love which you bear to our country, and a desire to promote the general happiness, will not suffer you to hesitate a moment to bring into action the talents, knowledge and integrity which are so necessary to be exercised at the head of that department which must be considered as the keystone of our political fabric." 1 While Jay was only in his forty -fourth year, and while his practice as a lawyer had been of short duration and his only previous judicial service had been two years (from 1775 to 1777) as Chief Justice of New York, nevertheless, the distinction, the sagacity and the powers of leadership which had characterized his military, political and diplomatic career since 1774, marked him as preeminently qualified for the responsibilities of the high post to which he was now called. 2

In the selection of the remaining five Judges, Washington was confronted with an even more difficult problem, since the three States of Virginia, Pennsylvania and South Carolina presented an unusual number of

1 Washington, X, letter of Oct. 5, 1789. To this. Jay replied: "When distinguished discernment and patriotism unite in selecting men for stations of trust and dignity, they derive honour not only from their offices, but from the hand which confers them. With a mind and a heart impressed with these reflections and their correspondent sensations, I assure you that the sentiments expressed in your letter of yesterday and implied by the commission it enclosed, will never cease to excite my best endeavours to fulfil the duties imposed by the latter, and as far as may be in my power, to realize the expectations which your nominations, especially to important places, must naturally create." Jay, III, letter of Oct. 6, 1789.

2 "A sound judgment improved by extensive reading, and great knowledge of public affairs, unyielding firmness and inflexible integrity were qualities of which Mr. Jay had given frequent and signal proofs," was the characterization which John Marshall later made of his friend and predecessor. Life of Washington (1807), by John Marshall, V, 215. Washington wrote to Lafayette, June 3, 1790, that his appointments of Jay at the head of the Judiciary and of Jefferson," Hamilton and Knox as Cabinet officials "generally have given perfect satisfaction to the public."

qualified candidates. From Virginia, the names most prominently mentioned were Edmund Pendleton, George Wythe, Arthur Lee and John Blair. Of his perplexity in choosing, Washington wrote to James Madison : 1 "My solicitude for drawing the first characters of the Union into the Judiciary is such that my cogitations on the subject last night, after I parted with you have almost determined me, as well for the reason just mentioned, as to silence the clamors, or more properly soften the disappointment of smaller characters, to nominate Mr. Blair and Colonel Pendleton as Associate and District Judge, and Mr. Edmund Randolph for the Attorney General, trusting to their acceptance. Mr. Randolph I would prefer in this character to any person I am acquainted with of not superior abilities, from habits of intimacy with him. Mr. Pendleton could not, I fear, discharge, and in that case I am sure would not undertake, the duties of an Associate under the present form of the Act. But he may be able to fulfill those of the District. The salary, I believe, is greater than what he now has ; and he would see, or it

1 Washington, X, letter of Aug. 10, 1789; Arthur Lee had applied for appointment, May 31, 1789 (see letter in Library of Congress), as follows : "It is not without apprehension of presuming too much on the favor you have always shown me that I offer you my services as a Judge of the Supreme Court which is now establishing. The having been called to the Bar in Westminster Hall after five years study at the Temple and having practised the law there for some time are the ground, Sir, on which I presume to ask your protection. I quitted the line of the law in England, where much was to be expected from the pursuit of it and with the fairest prospects, at the moment my country called upon me to aid in supporting her violated rights. With what fidelity I discharged the trust she reposed in me, the records of the Office of Foreign Affairs will show. To return to the profession I had chosen, in a station not unbecoming those in which I have acted, is my most earnest desire. It would be an additional satisfaction to be distinguished by your appointment, Sir, and to assist in distributing equal justice to a well-governed people." As to this letter Washington, writing to Madison in Aug., 1789, said: "What can I do with A(rthur) L(ee) ? He has applied to be nominated one of the Associate Judges; but I cannot bring my mind to adopt the request. The opinion entertained of him by those with whom I am most conversant is unpropitious ; yet few men have received more marks of public favor and confidence than he has. These contradictions are embarrassing."

might be explained to him, the reason of his being preferred to the District Court rather than to the Supreme Court ; though I have no objection to nominating him to the latter, if it is conceived that his health is competent, and his mental faculties are unimpaired by age." 1 John Blair, whom Washington finally selected, was a man of fifty-seven years of age, and had served ten years on the State Courts of Virginia as Chief Justice of the Court of Appeals and as a Judge of the High Court of Chancery.

From Massachusetts, it had been the general expectation that John Lowell, who had served as Judge of the Court of Appeals under the old Confederation, would receive the appointment; and he had been warmly indorsed by Washington's intimate personal friends. General Benjamin Lincoln had written: "I consider, my dear General, that not only the happiness of the people under the new government, but that the very existence of it depends, in a great measure,

1 Edmund Randolph, writing to Madison as early as July 19, 1789, said that Col. Griffin "had written him July 1<», stating that he had had 'a long conversation with our worthy President on the subject of officers of the Judiciary and the customs. He appears very anxious to know whether any of the gentlemen who are now in the Judiciary department in the State of Va., would prefer the Continental establishment and mentione; I Mr. Pendleton, Mr. Wythe, Mr. Lyons and Mr. Blair, and asked me whether you had ever intimated a wish to serve in that or any other line under the Federal government. May I ask the favor of you to sound Mr. W(ythe) and Mr. B(lair) <>u the subject. I have written to Mr. Marshall relative to the wishes of Mr. P(endleton) and Mr. L(ee).* " Omitted Chapters of History Disclosed in the Life and Papers of Edmund Randolph (1888), by Moncure D. Conway, 12(5.

Similar views as to possible candidates had been expressed by Joseph Jones of Virginia to Madison as early as June 21, ITS!), Mass. Hist. Sor. Proe. 2d Series, XV: "Virginia ought to have one. ... Of our Judges, Pendleton, Wythe, Blair, would either of them answer well? The first will, I fear, be unable to execute his present office long ; the others arc qualified and able, if they would act. Among the lawyers, I know of none but Randolph. It is of the first consequence to have your Supreme Court of able lawyers and responsible characters"; see also letters of Washington to Joseph Jones, May 14, 1789, and to Edmund Randolph, Nov. 30, 1789, explaining that the reason for not appointing George Wythe to the Federal Judiciary was W r ythe's preference to remain a State Judge; and see report of Randolph to Washington, Dec. 15, 1789: "Wythe sits in a kind of legal monarchy which to him is I he highesl possible gratification."

upon the capacity and ability of those who may be employed in the Judiciary. . . . The common voice of the people here points out Mr. Lowell as a gentleman well qualified to fill one of the seats upon the Superior Court. ... It is an office which, to fill with honour and dignity, requires an honest heart, a clear head and a perfect knowledge of law in its extensive relation." * When it became known that Washington was considering passing over Lowell and appointing William Cushing, the Chief Justice of the Massachusetts Supreme Judicial Court, a strong and interesting protest was made by Christopher Gore in a letter to Rufus King of New York : 2

The appointments to the Judicial seats will soon be made. We flatter ourselves in Massachusetts that one of the Supreme Court will be taken from this State. The general expectation is that our friend Lowell will be appointed an Associate Judge ; and no doubt was ever entertained of this event till we heard that our Chief Justice was in nomination. Should the Chief Justice be appointed, we shall lose an excellent man whose talents are peculiarly fitted for the place he fills, without rendering any great service to the United States ; and a very good man will be extremely mortified. The Chief Justice, now 56 years of age, cannot long be an active member of the Court, and he has new habits and new modes of legal decision to acquire. On these grounds, I much doubt if he would be an acquisition to the Union, or at least so great an acquisition to the Government as Lowell ; but in addition to all

1 See letter of July 18, 1789, from Lincoln, also indorsement of Lowell by Elbridge Gerry, Calendar of Applications (1901), by Gaillard Hunt; Office Seeking during Washington s Administration, Amer. Hist. Rev. (1896), I, 270. Fisher Ames also favored the appointment of Lowell, letter of Aug. 12, 1789, Works of Fisher Ames (1854), I.

2 King, I, letter of Aug. 6, 1789. Cushing's appointment was opposed by the strong Federalists in Massachusetts, who feared that his removal from the State Bench would give to Governor John Hancock, an Anti-Federalist, an opportunity to appoint the determined foe of all Federalists, James Sullivan; see letter of Stephen Higginson to John Adams, Amer. Hist. Ass. Rep. (1896), I, 767; William Cushing, by Arthur P. Rugg, Yale Law Journ. (1920), XXX.

the consequences, which will be apparent in your mind, to taking him from our State bench Lowell's situation from such neglect of him will be intolerable. Having held a similar rank under the old Confederation, which commission is superseded only by the adoption of the new Government, the neglect to appoint him to the Supreme Court will imply a conviction in the mind of him who appoints, that he had been tried and found wanting. This certainly will be disgraceful to a very good and able man. From a regard to the happiness and welfare of this State, and a wish that the expectations of a valuable part of the community should not be disappointed, and that an honorable and good man should not be extremely mortified, I request your attention and influence in this appointment, and I am sure, if you see no just reason on National grounds for preferring Cushing to Lowell, you will endeavor that the latter shall not be disgraced.