11

Law and an Independent Judiciary

In 1801 the Republicans had taken control of two-thirds of the federal government—the presidency and the Congress—but the judiciary remained in the hands of the Federalists. The Federalist grip on the judiciary more than rankled Jefferson and his Republican colleagues; it enraged them. Most extreme Republicans never liked the judiciary anyway. It was the least popular part of both the state and federal constitutions and the institution relied upon by those who most scorned and feared the people. Most judges were appointed, not elected by the people, and often, as in the case of the federal judges, with tenure during good behavior. With its robes, court ceremonies, and elevated benches, the judiciary seemed to be the branch of government that was essentially unrepublican. Consequently, some of the most rabid Republicans would have liked to do away with the judiciary altogether.

This popular antagonism toward the judiciary had deep roots in the history of colonial America. Judges in the colonies had not gained their independence in the aftermath of the Glorious Revolution of 1688–1689 as those in the mother country had. Prior to the eighteenth century the English common law courts had been regarded as servants of the crown, and judges held their offices at royal pleasure. As a consequence of the Glorious Revolution and the Act of Settlement of 1701, however, royally appointed judges in the mother country had won tenure during good behavior. But in most colonies judges had continued to hold office at the pleasure of the crown. Many colonists had resented this dependence of the courts on the crown and thus had tended to identify the judges, or magistrates, as they were often called, with the much resented royal governors, or chief magistrates.

The colonists had not usually regarded the judiciary as an independent entity or even as a separate branch of government. Indeed, they had often considered the colonial courts to be essentially political bodies, as magistracies that performed numerous administrative and executive tasks. The colonial courts in most colonies had assessed taxes, granted licenses, overseen poor relief, supervised road repairs, set prices, upheld moral standards, and all in all monitored the localities over which they presided.1 Consequently, it is not surprising that many colonists had concluded that there were really “no more than two powers in any government, viz. the power to make laws, and the power to execute them; for the judicial power is only a branch of the executive, the CHIEF of every country being the first magistrate.” Even John Adams in 1766 had regarded “the first grand division of constitutional powers” as “those of legislation and those of execution,” with “the administration of justice” resting in “the executive part of the constitution.”2 The colonial judges therefore had borne much of the opprobrium attached to the royal governors and often had been circumscribed by the power of popular juries to an extent not found in England itself.

Since Americans had become convinced that the dependence of the judges on executive caprice was, in the words of William Henry Drayton of South Carolina,“dangerous to liberty and property of the subject,” they sought to end that dependence at the Revolution.3 Most of the Revolutionary state constitutions of 1776–1777 took away the traditional power of the governors to appoint judges and gave it to the legislatures. The judges’ tenure clearly no longer depended on the pleasure of the chief magistrate. These changes in the judiciary’s status often were justified by reference to the doctrine of separation of powers made famous in the eighteenth century by Montesquieu—that, as the Virginia constitution of 1776 asserted,“the legislative, executive, and judiciary departments shall be separate and distinct, so that neither exercise the powers properly belonging to the other.”

This separation of the judges from their customary magisterial connection made them independent of the governors, but they were not yet independent of the people or their representatives in the state legislatures. In some of the states the legislatures elected the judges for a prescribed number of years—annually in Rhode Island, Connecticut, and Vermont—which was bound to make the judges feel dependent. When the assembly of Rhode Island, for example, did not like the behavior of the state’s supreme court in 1786, it simply elected a new court the following year. But even in those states that granted judges tenure during good behavior, the legislatures controlled the judges’ salaries and fees and the power of removal, usually by the simple address of a majority of the legislature. Of the thirteen original states only three—Virginia, North Carolina, and New York—gave a measure of independence to their judges, but only a measure: in Virginia and North Carolina the legislatures elected the judges, and in New York judges had to retire at age sixty.4

Because the American Revolutionaries had so closely identified the judges with the much hated magisterial power, they sought in 1776 not to strengthen the judiciary but to weaken it. They especially feared the seemingly arbitrary discretionary authority that colonial judges had exercised. That discretion had flowed from the fact that the colonists’ laws came from many different and conflicting sources. The colonial judges accepted many parliamentary statutes, but not all; they recognized much of the body of unwritten common law, but not all; and they had to reconcile what they accepted of the English common law with their own colonial statutes.

Because of these different sources of metropolitan and provincial law, the ability of colonial judges to pick and choose the appropriate law had often been much greater than that exercised by judges in England itself.5 The result, as Jefferson put it in 1776, was that Americans had come to view judicial activity as “the eccentric impulses of whimsical, capricious designing men.” Inevitably, most Americans in 1776 had come to believe that their popularly elected legislatures could be better trusted than judges to dispense justice, in Jefferson’s words,“equally and impartially to every description of men.”6

Coupled with this dislike of the judiciary was an equally intense popular dislike of lawyers. By the middle of the eighteenth century lawyers had achieved a measure of stability and some distinction as a profession. But the Revolution disrupted these developments. Many of the most prominent lawyers were Loyalists who fled the country or were disbarred. With the loss of as much as a quarter of the colonial legal profession, opportunities opened up for all sorts of legal sharpers and pettifoggers. All this in turn made the democratic middling forces released by the Revolution even more hostile toward lawyers, especially since lawyers were growing in number four times faster than the general population.7 In the eyes of many average Americans and popular radicals, the most famous being editor Benjamin Austin of Massachusetts, lawyers became responsible for everything that was wrong in the society. They were simply locusts who enriched themselves by living off the disputes and distresses of ordinary folk. In 1786 even Braintree, Massachusetts, the hometown of the former attorney John Adams, passed a resolve to “crush . . . that order of Gentlemen denominated Lawyers.”8

Since lawyers flourished by manipulating the arcane and intricate mysteries of the common law, they were best dealt with by eliminating or reforming the common law—that body of unwritten rules, practices, and precedents drawn from centuries of English jurisprudence. Although the Revolutionary leaders—many of them attorneys themselves—could scarcely be opposed to lawyers, some of them were interested in simplifying the common law and in bringing it into line with American conditions. Not only did they hope to create certainty out of uncertainty, but, more important, they were eager to circumscribe the much resented judicial discretion that had been exercised by the royal courts. By having the new state legislatures write down the laws in black and white, some of the Revolutionaries aimed to turn the judge into what Jefferson hoped would be “a mere machine.”9

The solution was codification—that is, relying exclusively on statutes and not on the unwritten common law. Indeed, throughout Western and Central Europe in the last half of the eighteenth century codification of the law became a central reform of all enlightened statecraft. Continental rulers everywhere sought to rationalize their legal systems, to make law scientific, to extend it in a vernacular language evenly over their territories, and to put an end to the earlier jumble of customs, privileges, and local rights. Eventually these efforts at legal codification were at least partially successful in Bavaria, Prussia, and Austria, and most fully successful with the Civil Code of Napoleonic France.10

Although the eighteenth-century English remained committed to the complexities and obscurities of their common law, even they attempted some systemization of their laws. In 1731 through parliamentary statute they established English rather than Latin as the language of legal practice and legal authority and for the first time began treating law as a subject to be taught in universities. At the same time, British jurists sought to summarize what they believed about their law in a comprehensive and methodical manner. William Blackstone’s Commentaries on the Laws of England(1765–1769) was only the most famous of these efforts to reduce the English laws to a system. Everywhere in Great Britain in the last half of the eighteenth century there was talk of rationalizing and humanizing the absurd and barbarous notions of justice that had existed in the past. Existing statutes should be consolidated, and law-making or legislation should be made into a science for the improvement of society. Despite all this talk of legal reform, however, the complicated and largely untidy common law continued to remain for most English jurists the foundation of the entire legal structure.

As Americans became aware of the legal reform that was taking place in the mother country and elsewhere in Europe, they became increasingly frustrated with their confused hodgepodge of barbarous and antiquated laws.“I knew,” Jefferson recalled in his autobiography,“that our legislation under the regal government had many very vicious points which urgently required reformation.”11 The break from Great Britain in 1776 at last gave him and other reformers the opportunity to simplify and clarify the unwritten nature of the common law and reduce the ability of judges to pick and choose what was law.

In 1776 most of the states agreed to retain as much of the English common law as was applicable to their circumstances, until it should be altered by future legislative acts. Nearly all the states thus began weeding out archaic English laws and legal technicalities and codifying parts of the common law. Society, it was said, often with ample quotations from the eighteenth-century Italian legal reformer Cesare Beccaria, needed “but few laws, and these simple, clear, sensible, and easy in their application to the actions of men.”12 Only through scientific codification and strict judicial observance of what William Henry Drayton of South Carolina called in 1778, quoting Beccaria,“the letter of the law” could the people be protected from becoming “slaves to the magistrates.”13

The Revolutionaries aimed to modernize state power, and thus their new state assemblies began legislating in a programmatic manner—creating institutions, organizing taxes, reforming the legal system, printing money—and in the process doubling and tripling their output of statutes. Not only did modern commercial policy and the need for improvement of all sorts demand new legislation, but the Revolutionary desire for legal reform and codification also required the enactment of an increasing number of laws.

But within a decade following the Declaration of Independence many Revolutionaries began to realize that all their law-making and all their plans for legal reform and simplification were not working out as they had hoped. Many statutes were enacted and many laws were printed, but rarely in the way reformers like Jefferson and Madison had expected. Unstable, annually elected, and logrolling democratic legislatures broke apart well-thought-out plans for comprehensive legal codes and passed statutes in such confused and piecemeal ways that the purposes of simplicity and clarity were defeated;“for every new law . . .,” complained a South Carolinian,“acts as rubbish, under which we bury the former.”14 Not only did the laws proliferate in ever-increasing numbers, but also many of the new statutes were poorly drafted and filled with inaccuracies and inconsistencies. As jurist St. George Tucker recalled, every attempt by Virginians to systemize and clarify their laws was “the parent of new perplexities, by the introduction of new laws; and the re-enaction, omission, or suspension of former acts, whose operation is thus rendered doubtful, even in the most important cases.”15 The multiplicity, mutability, and injustices of all this legislation meant that judicial discretion, far from diminishing, became more prevalent than it had been before the Revolution, as judges tried to bring some order out of the legal chaos.

By relying more and more on judicial interpretation, the American states were replicating British developments that had taken place a generation earlier. Of course, English common law judges had always exercised an extraordinary degree of discretion in interpreting the law, especially in setting aside the bylaws of corporations that were repugnant to the prerogatives of the king or to what many took to be the mysterious common law of the land.16 Even with the development of parliamentary sovereignty in the eighteenth century, English judges continued to interpret and construe parliamentary statutes in such a way as to fit them into the entire legal structure.17 Thus eighteenth-century English common law judges, despite having to acknowledge the sovereign law-making authority of Parliament, were left with an extraordinary amount of room for statutory interpretation and construction. In the mid-eighteenth century that traditional discretionary judicial duty was greatly enhanced by both William Blackstone and especially Lord Mansfield, the chief justice of the Court of King’s Bench between 1756 and 1788 . Both British jurists, confronted with a multitude of inconsistent and contradictory parliamentary statutes, carved out a huge interpretative role for British judges as they sought to bring the law into accord with equity, reason, and good sense.18

In the decades following the Revolution, Americans confronted with a similar “prolixity in our laws” used these British examples of judicial flexibility and creativity and expanded them.19 Even before the Revolution, as Edmund Burke pointed out in 1775, the colonists had turned Blackstone’s Commentaries into an American best seller, buying more copies per capita than the English themselves. What Americans wanted from Blackstone was not his emphasis on legislative sovereignty but rather his understanding that the law was reasonable and predictable and that the courts had a responsibility to make it so.

By the 1780s many Americans were already having serious second thoughts about their earlier confidence in their popularly elected legislatures and were beginning to re-evaluate their former hostility to judicial power and discretion. When particular statutes had to be enacted for every circumstance, said Connecticut clergyman Moses Mather in 1781, the laws proliferated and led to a confusion that wicked men could exploit for their private advantage. All the legislatures really should do was enact a few plain general rules of equity and leave their interpretation to the courts.“Indeed,” said Mather,“where civil justice is to be administered not by particular statutes, but by the application of general rules of equity, much will depend upon the wisdom and integrity of the judges.”20 This was a far cry from the Beccarian reformist sentiments of 1776 and represented the extent to which experience since the Declaration of Independence with the “excesses of democracy” had changed the thinking of some Americans.

By the 1780s many American leaders had concluded that their popular state assemblies not only were incapable of simplifying and codifying the law but, more alarming, had also become major threats to individual liberties and the property rights of minorities, and the principal source of injustice in the society.21 Although James Madison had counted on the new federal government’s becoming an impartial umpire that would mitigate the problem of unjust legislation by the states, other leaders reasoned that if such impartial judicial-like umpires were needed, then why not rely on judges themselves? Indeed, many gentry in the aftermath of the Revolution looked to the once feared judiciary as a principal means of restraining the rampaging and unstable popular legislatures. As early as 1786 William Plumer, a future U.S. senator and governor of New Hampshire, concluded that the very “existence” of America’s elective governments had come to depend upon the judiciary:“that is the only body of men who will have an effective check upon a numerous Assembly.”22

In the massive rethinking that took place in the 1780s, nearly all parts of America’s governments were reformed and reconstituted, often justified by ingenious manipulations of Montesquieu’s doctrine of the “separation of powers.” But the part of government that benefited most from this rethinking was the judiciary. In the decade following the Declaration of Independence the position of the judiciary in American life began to be transformed—from the much scorned and insignificant appendage of crown authority into what Americans increasingly called one of “the three capital powers of Government,” from minor magistrates identified with the colonial executives into an equal and independent part of a modern tripartite government.23

It was a remarkable transformation, taking place as it did in such a relatively short period of time. And it was all the more remarkable because it flew in the face of much conventional eighteenth-century wisdom. Getting Americans to believe that judges appointed for life were an integral and independent part of their democratic governments—equal in status and authority to the popularly elected executives and legislatures—was no mean accomplishment. Such a change in thinking was a measure of how severe the crisis of the 1780s really was and how deep the disillusionment with popular legislative government in the states had become since the idealistic confidence of 1776—at least for those who became Federalists.

THE CONVENTION THAT CREATED the Constitution of 1787 was committed to an independent federal judiciary. The delegates agreed rather easily on an appointed judiciary serving for life during good behavior with a guaranteed salary and removal only by impeachment. No single state constitution had granted that degree of independence to its judiciary; indeed, in 1789 most state judges remained remarkably dependent on the popular legislatures, which in nearly all the states, like the House of Lords in England, retained some appellate authority in adjudication.24

Although the convention wanted an independent judiciary, it had difficulty in prescribing a court system for the new nation. Some of the delegates, especially those from South Carolina, wanted no separate national court system at all (with the exception of a single supreme court) and urged that all federal cases be tried in the existing state courts with the right of appeal to the federal Supreme Court. Others believed that the state courts could not be trusted to execute federal laws. Ultimately in Article III of the Constitution the convention delegates put many of the problems off to the future. They created a Supreme Court to be appointed by the president with the advice and consent of the Senate but only allowed for “such inferior courts as the Congress may from time to time ordain and establish.” Whether Congress was actually required to establish inferior courts was not at all clear. The Constitution did declare, however, that among other things “the Judicial Power shall extend . . . to Controversies between Citizens of the different States.”

When the first Congress convened in April 1789, the Senate immediately established a committee to draft a judiciary bill, chaired by Oliver Ellsworth, an experienced jurist from Connecticut who had sat on the Continental Congress’s Committee on Appeals and had been a member of the Constitutional Convention. Article III of the Constitution allowed the committee a wide variety of options. If lofty-minded Federalists like Alexander Hamilton had had their way, Congress would have established national judicial districts that cut through state lines and were staffed by squadrons of federal judges with full authority to carry national law into every corner of the land. At the other extreme were those Anti-Federalists who wanted to rely on the state courts to enforce federal law, allowing any separate federal courts to possess only admiralty jurisdiction.

Ellsworth and his committee wanted a separate federal court system. At the same time, however, they were well aware of the fears of a national judiciary that the Anti-Federalists had aroused during the ratification debates, especially fears of a national judiciary that omitted certain common law rights like trial by jury. Since Section 25 of the judiciary bill the committee drafted allowed for the overturning of state laws and state court rulings if they conflicted with federal treaties, statutes, or the Constitution, many Southerners feared it. Although some may have been worried about federal judges’ interfering with slavery, most were apprehensive that inferior federal courts might try to overrule state court decisions that forestalled payment of debts to British creditors required by the peace treaty of 1783.25 The possibility of conflict between the new federal government and the states was thus very great. One congressman even warned that the creation of a federal judiciary would lead to civil war.

The resultant Judiciary Act passed in September 1789 was an ingenious bundle of compromises that allayed many of the Anti-Federalist suspicions. Passage of the act was aided considerably by the fact that Congress at the same time was enacting a series of amendments to the Constitution that became the Bill of Rights, especially the Sixth and Seventh Amendments that protected people’s right to jury trials. In the end the Judiciary Act created an innovative three-tiered hierarchical federal court structure, consisting of the Supreme Court, circuit courts, and district courts, that has remained the basis for the court system to this day.

ALTHOUGH THE ACT ESTABLISHED the judiciary as one of the three essential branches of the federal government, it nevertheless allowed the existing state courts concurrently to exercise federal jurisdiction. Indeed, at first there was a good deal of overlap between federal and state judicial offices. In Rhode Island, for example, the U.S. district attorney, Ray Green, between 1794 and 1797 was at the same time the state’s attorney general. Only gradually during the 1790s did the states begin to pass laws prohibiting members of the state legislatures and other state officers from simultaneously holding federal positions. Until the national government got on its feet, the federal court system necessarily had to rely heavily on the states to carry on its business. Not only did federal judicial officials have to use state buildings for their activities, the Judiciary Act of 1789 also allowed state officials to arrest federal offenders, accept federal bail money, and detain all prisoners committed under the authority of the United States. Moreover, in all of the federal judicial districts, which coincided with the boundaries of the states (except for Virginia and Massachusetts, which each had two districts), the fee schedules, modes of selecting jurors, and the qualifications of admitting lawyers to the federal bar were patterned after state practice. Each of the district courts, which formed the lowest level of the federal judicial system, had to have a local resident as its judge, someone who necessarily would be familiar with local people and local practices.26

According to the Judiciary Act of 1789 these local district courts were to have jurisdiction over admiralty cases, petty crimes, and revenue collection. At the next level of the federal system were three circuit courts, catering to the three regions of the country, North, Middle, and South, each composed of three judges—the local district judge and two Supreme Court justices riding circuit twice a year, which the justices came to find increasingly intolerable. (In 1793 Congress reduced the number of judges for the circuit courts from three to two, thus somewhat easing the burden of travel for the Supreme Court justices.) These circuit courts were to be the major national trial courts with jurisdiction over important crimes, over cases involving out-of-state or foreign citizens, and over appeals from the district courts in admiralty cases. In those cases where the amount in question was more than five hundred dollars and there was diversity of citizenship, that is, the litigants were from different states, the federal circuit courts had “concurrent cognizance” with the state courts. Thus out-of-state litigants were able to remove their cases from what were often seen asthe prejudiced state courts to the more neutral federal courts.

At the top was the Supreme Court of six justices to convene twice a year in the national capital for two-week terms. Because most of the work of the justices was to take place on the road in the circuit courts, the Supreme Court initially was not expected to do much; indeed, up to 1801 the Court heard a total of only eighty-seven cases.27 In addition to possessing some original jurisdiction, the Supreme Court was granted appellate authority, including that over questions of federal law that had been decided in the state courts and in the federal circuit courts. Exactly what kinds of law—whether the civil and criminal common law, state statutes, or only federal statutes—ran in this federal system was left vague. Certainly most Federalists expected the federal judiciary to exercise the broadest possible jurisdiction, including that of the common law of crimes.28

Because Washington believed that the administration of justice was “the strongest cement of good government,” he sought for the courts only “the fittest characters to expound the laws and dispense justice,” by which he meant men with established social and political positions.29 He thus appointed as chief justice his wealthy friend from New York, John Jay, who formerly had served as president of the Continental Congress, peace commissioner in Paris in the early 1780s, and secretary of foreign affairs under the Confederation. Likewise, Washington’s appointments of associate justices were distinguished political figures with Federalist sympathies drawn from various sections of the country, appropriate to the circuit courts; these included John Rutledge of South Carolina, James Wilson of Pennsylvania, William Cushing of Massachusetts, and James Iredell of North Carolina, which had finally ratified the Constitution on November 21, 1789 . Most of these judges still maintained a traditional magisterial notion of their judicial offices.

Traditionally, judges in the eighteenth century had been appointed to the courts because of their social and political rank, not because of their legal expertise; many were not even legally trained. They were expected to exercise a broad, ill-defined magisterial authority befitting their social position; they were considered members of the government and remained intimately involved in politics. In the colonial period Thomas Hutchinson of Massachusetts, for example, who was no lawyer, had been chief justice of the superior court, lieutenant governor, a member of the council or upper house, and judge of probate of Suffolk County of Massachusetts, all at the same time.

Similar traditional conceptions of the judiciary were carried into the Revolution and early Republic. During the Revolution Thomas McKean sat as a delegate to the Continental Congress from Delaware and even served as president of the Congress while continuing to be chief justice of the Pennsylvania Supreme Court. In Connecticut in the early nineteenth century, Jonathan Brace was simultaneously a member of the Connecticut council (the state’s upper house), judge of the county court, judge of the probate court, state’s attorney from Hartford, and judge of the city court.30The Virginia Plan at the Constitutional Convention of 1787 proposed that the national executive join with several members of the national judiciary to constitute a “council of revision” to oversee all legislation passed by the Congress and each state legislature. While this proposal, modeled on New York’s similar council, was not finally approved by the convention, the mere fact that Madison, Wilson, and others vehemently defended this combination suggests that many leaders continued to think of judges as political magistrates rather than as legal experts separated from politics.

The same kind of traditional thinking influenced the appointments and behavior of the new federal judges in the 1790 s. Washington was certainly much less interested in the judicial experience of his appointees than he was in their political character. Although Jay had been chief justice of New York, he had served only a few weeks in that office. Iredell had less than six months of previous judicial experience before being named to the Supreme Court, and Wilson had never served as a state judge.31 Of the twenty-eight men who sat on the federal district courts in the 1790s, only eight had held high judicial office in their states, but nearly all of them had been prominent political figures.32 They saw their service on the court as simply an extension of their general political activity; some of them even continued to exercise political influence, write political articles for newspapers, and pass on Federalist patronage in their districts while sitting on the bench.

Probably the most conspicuous example of the judges’ magisterial behavior in the 1790s was the political character of their charges to grand juries. These charges were not simply narrow treatises on the niceties of the law; they were broad pronouncements on politics, often printed in the newspapers and then reprinted and spread throughout the land. The Federalist judges took advantage of these ceremonial occasions to instruct citizens on their duties and responsibilities to support the fledging national government and to criticize those who seemed to be opposed to the Federalist administration.33 At first, this sort of political behavior did not strike most people as unconventional; colonial judges had often charged juries with lectures on politics.34 Such practices were merely an aspect of the pre-modern magisterial character of the eighteenth-century courts. During the trials of the rebels in the Whiskey Rebellion, for example, no one objected to Justice William Paterson’s explicit directions to the jury to find the defendants guilty. With respect to the defendant’s intention, Justice Paterson declared,“there is not, unhappily, the slightest possibility of doubt. . . . The crime is proved.” Such directions were still considered customary in the late eighteenth century.35

Thus it is understandable that the irascible and abrasive Samuel Chase of Maryland, appointed to the Supreme Court in 1796, saw nothing wrong with his politicking openly on behalf of the Federalist cause while sitting on the bench. Indeed, he, along with Bushrod Washington, his colleague on the Supreme Court, even openly campaigned for the reelection of President Adams in 1800 . Chase was only doing what he thought his position as a political authority and magistrate justified.

Because many people in the 1790s continued to regard the federal judges as political magistrates, the early Congresses assigned a surprisingly large number of non-judicial responsibilities to them, including conducting the census and serving on commissions to reduce the public debt. In nearly all cases the judges willingly accepted these administrative responsibilities.36 Hamilton summed up the traditional view in 1802 by pointing out that judges were ex officio conservators of the peace and were expected to do more than merely adjudicate. Their duties were twofold,“judicial and ministerial,” and the ministerial duties were “performed out of Court and often without reference to it.”37

Almost immediately after appointing Jay as chief justice, Washington sought his diplomatic advice on the Nootka Sound crisis in 1790, and Jay had no inhibitions about giving it in writing. He had after all served simultaneously as secretary of state and chief justice of the Supreme Court while waiting for Jefferson’s return from France in 1789 . Chief Justice Jay likewise responded in writing when Secretary of the Treasury Hamilton asked him for a draft of a neutrality proclamation in April 1793 . Jay later worked his ideas about American neutrality into a grand jury charge, which was published in the newspapers and which the government sent abroad as a formal explanation of its position.38 Although Jay’s appointment as a special envoy to Britain in 1794 to prevent an impending war aroused some opposition in the Senate, most officials saw nothing inappropriate in the chief justice performing such a diplomatic mission. Later in 1799 Chief Justice Oliver Ellsworth headed the mission sent to negotiate the end of the Quasi-War with France. Indeed, throughout his tenure as chief justice, Ellsworth repeatedly offered advice to the Federalist administration on political matters and even on matters involving criminal prosecutions.39

In fact, the Federalists hoped that the federal courts might help to break down state loyalties and nationalize the society. Federal law under the Constitution, unlike that of the Confederation, would penetrate the membrane of state sovereignty and operate directly on individuals—one of the most radical features of the new national government. Senator William Paterson, later an associate justice of the Supreme Court, said during the drafting of the Judiciary Act in 1789 that he expected the federal courts to “carry law” to the people,“to their Homes, to their very Doors,” so that “we shall think, and feel,& act as one People.”40

But given the strong loyalty most Americans had to their separate states, this expansion of the authority of the federal courts had to be done carefully. Chief Justice Jay knew only too well that “the federal Courts had Enemies in all who fear their Influence on State Objects.” Thus contradictory opinions by the circuit courts, circuit-riding in general, and other problems with the federal courts “should be corrected quietly,” for, as Chief Justice Jay told New York senator Rufus King in 1793, if the “Defects were all exposed to public View in striking Colors, more Enemies would arise, and the Difficulty of mending them increased.”41

Out of fear that the state courts might undermine national authority, the Federalists drafted the Judiciary Act of 1789 in such a way as to make it more likely that the initial filing of federal cases would be done in federal trial courts rather than in state courts. This lessened the need for federal appellate review of state court decisions, particularly decisions involving suits of British creditors, which might have led to nasty conflicts between the federal and state judiciaries. Just such a British debt case, Ware v. Hylton, which had begun in a federal court, reached the Supreme Court in 1796 . The Court decided that the supremacy clause of the Constitution provided that treaties of the United States overrode a Virginia state law—an important precedent for establishing national authority. In that same year, 1796, the Court in Hylton v. United States ensured that the new federal government would have taxing power broad enough to meet its needs, again by defeating a Virginia case against a federal carriage tax. This case was an important enough precedent for the federal government’s ability to extract revenue from its citizens that Alexander Hamilton temporarily left his private law practice to argue the case before the Court on behalf of the government; this was the only time he ever appeared before the Court.

With these decisions the Federalist-dominated Court revealed its desire to declare that the United States formed a single nation of one people. In Chisholm v. Georgia (1793), however, the Court overreached itself. It decided that the state of Georgia was not immune from suits by citizens of another state. This decision represented such a serious assault on state sovereignty that it could not stand; even Federalists in Massachusetts were appalled by it. Many of the state legislatures called for a constitutional amendment to overturn the Chisholm decision and prevent states from being sued by foreigners or by citizens of another state. The result was adoption in 1798 of the Eleventh Amendment to the Constitution, which declared that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”42

Although most Federalists were not bent on abolishing the states and all state sovereignty, they were eager to ensure that the national government had sufficient authority to govern. During the trials of the rebels in the Whiskey and Fries rebellions, the federal courts offered a broad “constructive” interpretation of treason in the Constitution by contending that mere armed opposition to a statute was equivalent to the levying of war against the United States. If the object of the insurrection was “to suppress the excise offices and to prevent the execution of an act of Congress, by force and intimidation,” declared Justice Paterson in the trial of the Whiskey rebels,“the offence in legal estimation is high treason; it is an usurpation of the authority of government; it is high treason by levying of war.” It did not matter to Paterson that the prosecution had failed to produce two witnesses to the defendant’s overt acts. The Federalists meant to put down disorder. The same thinking governed the trial of the Fries rebels of 1799 . Although John Fries and a mob did rescue eighteen men from a federal marshal and his deputies, no shots were fired, and the prisoners later made their way unescorted to Philadelphia, where they gave themselves up to the law. Nevertheless, Fries was charged and twice convicted of treason for levying war against the United States. Defining riot and rescue as treason was a stretch—a “novel experiment,” said the defense attorneys—but in the atmosphere of 1799 the Federalists were frightened.43

Equally important in strengthening the authority of the federal government were the Federalists’ efforts to create a bankruptcy law for the nation. The main purpose behind the uniform national bankruptcy law of 1799 was the Federalist desire, as Congressman James Bayard of Delaware put it, to “unite and naturalize the United States, and . . . cement together the different parts of the Union, and connect more closely the nation with the Federal Government.”44

Perhaps most important of the Federalists’ attempts to bolster national authority in the 1790s was their claim that the federal courts had jurisdiction over common law crimes. The Federalists contended that the federal courts could use something called an American common law—a body of precedents and practices drawn from the unwritten English common law and adapted to American conditions—to punish crimes against the United States and its government even in the absence of specific federal criminal statutes.

Chief Justice John Jay’s first charge to a grand jury in the spring of 1790 staked out a large area of national common law jurisdiction. He told the jurors that their duty extended “to the enquiry and presentment of all offences of every kind, committed against the United States,” by which he seems to have meant virtually any example of wrongdoing against the nation or its government whether proscribed by a federal criminal statute or not.45 In 1793 Justice James Wilson in a grand jury charge went even further in expanding the federal courts’ jurisdiction by claiming that the law of nations was part of what he called the “common law” of the United States.

In the 1790s most Federalist judges scarcely doubted the existence of a federal common law of crimes adapted to American circumstance. In fact, they assumed that no national government could rightly call itself a real government if it lacked the legal means of protecting itself by judicial proceedings alone. As Chief Justice Ellsworth declared in 1799, acts that were “clearly destructive of a government or its powers, which the people have ordained to exist, must be criminal.” It was not necessary to particularize these criminal acts by legislative statute, said Ellsworth,“because they are readily perceived, and are ascertained by known and established rules; I mean the maxims and principles of the common law of our land.”46

Probably no Federalist conception in the 1790s seemed to the Republicans more threatening in its implications than this notion that the common law of crimes ran in the federal courts. The common law, as the Republicans pointed out,“was a complete system for the management of all the affairs of a country. It . . . went to all things for which laws are necessary.” Common law jurisdiction relating to crimes, said Madison,“would confer on the judicial department a discretion little short of legislative power.” If the federal courts could use the “vast and multifarious” body of the common law to control American behavior, then, concluded Madison in his famous report of January 1800 to the Virginia assembly, the courts alone might “new model the whole political fabric of the country.”47

Although the federal judges denied that they were newly modeling the whole political fabric of the country, they did attempt to use the common law to expand national authority in a variety of ways. During the trials of the rebels in the Whiskey and Fries rebellions, the federal courts used the federal common law to justify the federal government’s trying and punishing the rebels’ violations of state law and state practices.“Although, in ordinary cases, it would be well to accommodate our practice with that of the state,” declared District Judge Richard Peters in the trial of the Whiskey rebels,“yet the judiciary of the United States should not be fettered and controlled in its operations, by a strict adherence to state regulations and practice.”48

When some of the Federalists began claiming that the federal courts could use the criminal common law to punish seditious libel even without a sedition act, the Republicans became truly alarmed. The claim that the federal judiciary could use the common law to punish crimes, Jefferson declared in 1799, was the “most formidable” doctrine that the Federalists had ever set forth. He told Edmund Randolph that all that the Federalist monocrats and aristocrats had done to tyrannize over the people—creating the Bank, Jay’s Treaty, even the Sedition Act of 1798—were “solitary, inconsequential timid things in comparison with the audacious, barefaced and sweeping pretension to a system of law for the US without the adoption of their legislature, and so infinitely beyond their power to adopt.”49 If the Federalists were ever able to establish this doctrine, Jefferson believed that the state courts would be put out of business. As far as he was concerned, there could be no law that existed apart from the popular will of the nation. And since that will had never established the common law for the United States, and indeed had no right to do so anyway for such a limited government, the federal government contained no such common law.50

WITH GOOD REASON, the Jeffersonian Republicans had become convinced by 1800 that the national judiciary had become little more than an agent for the promotion of the Federalist cause. Some Federalists in 1798–1799 had thought that the army might be used to put down the states, but shrewder Federalists knew better.“It is impossible, in this country, to render an army an engine of government,” Secretary of the Treasury Oliver Wolcott Jr. told Fisher Ames in December 1799; “there is no way to combat the state opposition but by an efficient and extended organization of judges, magistrates, and other civil offices.”51

Nothing seemed to give pause to the Federalist plans to control the judiciary—not even the election of Republicans to the presidency and the Congress in 1800; indeed, the election results only made the Federalists more desperate to hold on to the courts. If a free government could not tolerate a standing army to hold itself together, then, said the Federalists, the only thing left was “a firm, independent, and extensive Judiciary.”52

Although the Federalists had lost the election in the late fall of 1800, the new Republican administration did not take office until March 1801, and the new Congress would not be seated until December 1801 (not changed until the Twentieth Amendment adopted in 1933 eliminated the December to March lame-duck session of Congress). In February 1801, less than three weeks before its expiration, the lame-duck Federalist-controlled Congress passed a new judiciary act, which was designed to further consolidate national judicial authority. The act eliminated circuit court duty for the justices of the Supreme Court by creating six new circuit courts with sixteen new judges. It broadened the original jurisdiction of the circuit courts, especially in cases involving land titles, and provided for the easier removal of litigation from state to federal courts. It also recognized that the common law of crimes ran in the federal courts. On the assumption that the work of the Supreme Court would be lessened, the Federalist Congress reduced the Court’s membership from six to five justices with the next vacancy. This meant that Jefferson would be prevented from naming a Supreme Court justice until two vacancies occurred.53

To add insult to injury, John Adams, before surrendering the presidency to Jefferson, appointed a number of Federalist judges to this newly enlarged federal judiciary, including incumbent Secretary of State John Marshall as chief justice of the United States. The act also provided for numerous offices of clerks, marshals, attorneys, and justices of the peace to which deserving Federalists were quickly appointed. Because Adams signed the commissions of many of these appointments on the eve of Jefferson’s inauguration, the new Federalist appointees were labeled “midnight judges.”54

Although the Federalists had been considering reform of the judiciary for some while, this last-minute action seemed desperate and designed to perpetuate their cause in spite of the popular will. Some Federalists admitted as much. Since the Federalists with the Republicans’ victory “are about to experience a heavy gale of adverse wind,” Gouverneur Morris explained,“can they be blamed for casting many anchors to hold their ship through the storm?”55

WHEN THE REPUBLICANS TOOK OVER the elective branches of the national government in 1801, it was inevitable that they would turn their attention to the judiciary. Jefferson believed that the Federalists had “retired into the judiciary as a stronghold . . ., and from that battery all the works of republicanism are to be beaten down and erased.”56 To complete the Republican “revolution,” therefore, as Virginia congressman William Branch Giles told Jefferson,“the enemy” had to be routed from “that strong fortress.”57

To the most extreme Republicans like Giles it was outrageous and anti-republican that the federal judges remained free of popular control under some sort of “misapplied idea of ‘independence.’” These zealous Democratic-Republicans would be satisfied with nothing less than “an absolute repeal of the whole Judiciary and terminating the present officers and creating a new system.”58 But Jefferson was more cautious. Realizing that there were many Republicans who valued an independent judiciary and even some who liked the features of the new Federalist Judiciary Act of 1801, he moved slowly at first. He knew that removing the Federalist judges would pose problems. Since their lifetime appointments were in “the nature of freeholds,” it was “difficult,” he said,“to undo what is done.” But at least he could appoint Republicans as other important officers of the courts who served at the pleasure of the president—the U.S. district attorneys who prosecuted the government cases and the marshals who selected the juries and executed the courts’ sentences. These officers would become “the only shield” protecting the people from the Federalist judges.59

Despite his sense of the difficulties involved, however, Jefferson had no doubt that the Federalist Judiciary Act of 1801 was a “parasitical plant engrafted at the last session on the judiciary body,” a plant that had to be lopped off.60 After a long and bitter debate in the Congress, the Republicans in 1802 repealed the Federalist law, thus at a stroke destroying the newly created circuit courts and for the first and only time in United States history revoking the tenure of federal judges as well. Of course, the Republicans said that they were not legislatively removing the judges, which would be a violation of their tenure during good behavior and thus unconstitutional, but they were simply abolishing the courts. Federalist Justice Samuel Chase was not amused.“The distinction of taking the Office from the Judge, and not the Judge from the Office,” was, said Chase,“puerile and nonsensical.”61

The Republicans then went on to amend the judicial system. Instead of three circuit courts there were now to be six, within each of which a justice of the Supreme Court was to serve on circuit twice a year with the various district judges. Instead of meeting two times a year for two weeks, the Supreme Court would meet only once a year for a term of four weeks. Since the Supreme Court had last met in December 1801, it could not legally reconvene until February 1803—a fourteen-month suspension that some Federalists believed might set a precedent for an even longer suspension, even virtual abolition, of the Court.62 But Jefferson did not want to destroy the Court, only republicanize it. The repeal and the new Judiciary Act of 1802, the president declared, were designed to “restore our judiciary to what it was while justice& not Federalism was its object.”63

Many were upset by these changes, which were designed to meet the most serious objections to the 1789 system. Even some moderate Republicans regretted the repeal of the 1801 Judiciary Act and the abolition of the new tier of federal circuit courts. Those involved in commerce especially had come to appreciate the integrity and efficiency of the federal courts in contrast to the state courts, where legally uneducated judges without secure tenure were not to be trusted to make even-handed judgments.64

Federalists saw the repeal as a threat to the Union itself. In May 1803 in a charge to a federal grand jury in Baltimore, Justice Samuel Chase assailed the Republicans for shaking the independence of the national judiciary to its foundations and threatening the security of all liberty and property. Many Federalists called for the Supreme Court to declare Congress’s repeal of the Judiciary Act of 1801 null and void because it had rescinded the tenure of the new circuit judges and deprived them of their salaries in violation of Article III, Section 1 of the Constitution. Others wanted the judges to ignore the act and go on strike. Still others were more pessimistic and predicted that armed resistance would be the only answer to the Republican assault on the judiciary.

For their part many of the Republicans were not satisfied with the mere repeal of the Judiciary Act of 1801 and the elimination of the new courts. Some, including President Jefferson, wanted the Constitution amended so that the president could remove any judge following a joint address of the majority of the Congress. But when this seemed too complicated, the Republicans fixed on impeachment for “high crimes and misdemeanors” as the best available constitutional device for getting rid of obnoxious Federalist judges. Although Jefferson complained that impeachment was “a bungling way” of dealing with the problem, he was reluctantly willing to give it a try.65

In 1804 the Republicans in the House of Representatives first impeached and the Senate convicted John Pickering, an alcoholic and probably insane judge of the federal district court of New Hampshire. Although Pickering had been violently partisan, he had committed no offense clearly recognized by the Constitution. As Senator William Plumer of New Hampshire pointed out, the Republicans were considering the “process of impeachment . . . in effect as a mode of removal, and not as a charge and conviction of high crimes and misdemeanors.” Congressman John Randolph of Virginia, the Republican leader in the House, was reported to have said that the provision in the Constitution that judges shall hold their offices during good behavior was intended to guard them against the executive alone. It did not apply to the Congress, which should be able to remove them by majority vote.66

On the very day in March 1804 that the Senate found Pickering guilty, the House passed a resolution for the impeachment of Justice Samuel Chase, the most overbearing Federalist on the Supreme Court. Although Jefferson had urged privately that some action be taken against Justice Chase for his grand jury charge in Baltimore in 1803, it was Randolph who assumed full control of the impeachment of Chase.

Early in the new Republican-dominated Congress, Randolph emerged as chairman of the Ways and Means Committee and majority leader. Although he had his successes, a more unlikely leader can hardly be imagined. To be sure, he had some important credentials: he was a member of the most distinguished family in Virginia, a cousin of Thomas Jefferson, a close friend of the Speaker of the House, North Carolina congressman Nathaniel Macon, and a religiously devout Republican. But he was arrogant and belligerent, and not temperamentally suited for the compromising and deal-making required of a majority leader. He appeared in the House booted and spurred with a whip in hand, imitating what he assumed was the behavior of members of the British Parliament. He was pale, thin, and beardless with burning hazel eyes and a high piercing voice that he used with great effectiveness. He was a fascinating orator—an extemporaneous speaker, jumpy and excitable as a young filly, and quick to put men down with wit and sarcasm. His opponents in the House fumed and eventually wilted when he pointed his long bony finger at them and verbally abused them. Randolph saw corruption everywhere and was devoted to the Republican ideals of‘98—”jealousy of the State Governments toward the General Government; a dread of standing armies; a loathing of public debt, taxes, and excises; tenderness for the liberty of the citizen; jealousy, Argus-eyed jealousy of the patronage of the President.” He had little or no conception of the American nation:“when I speak of my country,” he said,“I mean the Commonwealth of Virginia.” When he took over the leadership of the Republicans’ impeachment of Justice Chase in 1804 he had just turned thirty.67

Randolph was no more equipped to handle the impeachment of Chase than he was to be majority leader. He had no legal experience, and his emotional and sarcastic style of speaking was inappropriate for the august trial held in the Senate in February 1805 . The Senate was draped in crimson and green and, according to one senator,“fitted up in a style beyond anything which has ever appeared in this country.” Most of official Washington was present, along with a thousand or more spectators.68

There were eight articles of impeachment accusing Chase not only of criminal behavior but also of mistakes in procedure during one of his trials. The implications were ominous: if Chase were to be convicted for these mistakes, then in the future any judge could be easily removed by impeachment. Apparently, Randolph and some other Republicans hoped to follow up Chase’s conviction with an attack on other justices of the Supreme Court. Many thought Chief Justice Marshall would be next. Marshall was certainly unnerved by the Chase impeachment. He wrote Chase on the eve of the trial expressing his apprehensions over the “modern doctrine . . . that a Judge giving a legal opinion contrary to the legislature is liable to impeachment.” A much better and more humane way of handling these issues, he told Chase, would be for the legislature simply to reverse “those legal opinions deemed unsound by the legislature.” Thus “impeachment should yield to the appellate jurisdiction in the legislature.”69

As it turned out, Randolph mishandled the trial and lost the support of some of his fellow Republicans. Although Randolph and the House managers did get a simple majority of the Senate to convict Chase on three charges, they could not muster the necessary two-thirds on any of them. (There were twenty-five Republicans and nine Federalists in the Senate.) Not a single senator voted for the article accusing Chase of procedural mistakes in one of his trials. As much as they hated Chase, many Republican senators were reluctant to convict him for acts that were not prohibited by any express and positive laws—the very point of the Republicans’ objection to the use of the common law of crimes. They also realized that Chase’s political behavior on the bench, while excessive at times, was not all that unusual and was not criminal. After all, many Republican state judges were likewise using their courts for partisan purposes. The line between law and politics was still thought hazy enough for many to be unsure of which was which.

Still, the Chase trial helped to clear the air. Chase himself changed his behavior; from that moment until his death in 1811 he ceased engaging in political controversy. Senator John Quincy Adams thought that the failure to convict Chase established that only actual crimes were impeachable offenses.70

Chase’s acquittal effectively destroyed Randolph’s reputation among his fellow Republicans and drove him to the extremist edges of the party. Although the Republicans’ failure to convict Chase ended for the time being their assault on the national judiciary, they did not abandon their desire to make the judiciary more responsive to the nation.“Impeachment was a farce which will not be tried again,” Jefferson said in 1807 . What was needed, he said, was “an amendment to the Constitution which, keeping the judges independent of the Executive, will not leave them so, of the nation.” Republicans from some of the states proposed several amendments that were variations on the English pattern—that simple address of the Congress be sufficient for removal of judges.71 But these various proposals went nowhere. By the end of Jefferson’s administration the Supreme Court was gaining in authority under Chief Justice John Marshall’s careful leadership, especially since, as Gouverneur Morris reminded Marshall,“your Office being independent of popular whim, the Shafts of Malice cannot easily prevail.”72

SIMILAR STRUGGLES BETWEEN the Federalists and Jeffersonian Republicans over the role of law and the judiciary in American life were also unfolding in the states. The increasing democratization of American society and politics made more and more leaders turn to the law and judges as restraints on the popular power expressed in the state legislatures. The Federalists had long since become convinced that the courts were essential in staving off “the confiscating avarice of Democracy.”73

But it was too late:“equal rights” was the rallying cry almost everywhere against aristocratic judicial privilege and the mysteries of the common law. Indeed, so threatening and unsettling did the popular anti-aristocratic attacks on lawyers and judges become that even many Republicans eventually felt the need to come to the defense of the common law and an independent judiciary.

As the Federalists rapidly declined in influence during the first decade of the nineteenth century, the dominant Republicans began turning on one another. Jefferson had predicted that the Republicans would divide among themselves into different parties, and “whatever names the parties might bear, the real division would be into moderate and ardent republicanism.”74 The issue that most conspicuously divided the Republicans was the role of the judiciary.

Nearly all the states sought to reform the law and their judiciaries during the decades following the Revolution, and these efforts generated continual controversy. While the Federalists, often speaking for the static property interests of rentier groups, wanted a judiciary as independent as possible from popular control, the Republicans usually pushed for an elected judiciary, codification, if not elimination, of the common law, and legislative dominance over the judges.

By 1800 almost every state had problems with its judiciary, some more than others. As the governor of Pennsylvania complained,“The extension of Commerce and Agriculture, the increase of population, and the multiplication of Counties” had rendered the state’s court system “no longer adequate to the regular and efficient administration of justice.”75 Consequently, judicial reforms of one sort or another became necessary. In some states like Kentucky and Ohio the radical Republicans, representing those common farmers most resentful of sophisticated legal processes, were able to accomplish much of their program of weakening the common law and of bringing the judiciary under the control of the people. Elsewhere, however, moderate Republicans, generally representing those who had the strongest entrepreneurial and market interests, came to realize the importance of the common law and an independent judiciary to economic development and began resisting the more radical popular demands.

Of all the struggles over the law and judiciary that took place in the states during the first two decades of the nineteenth century, probably the longest and most intense occurred in Pennsylvania, where there were factions within factions. Groups of radicals in Pennsylvania believed that the revolution on behalf of republicanism had not been carried far enough. The most extreme of these factions was led by Dr. Michael Leib, a Philadelphia physician and political activist, and William Duane, the editor of the Aurora. Leib, a founder of the German Republican Society who became a member of the state legislature, later a member of Congress, and eventually a U.S. senator, was totally committed to turning the poor and the common laborers of Pennsylvania into political actors. His commitment to the international republican revolution and the most extreme forms of majoritarian democracy was equally strong.

As long as the Federalists were the major enemy, different opposition groups in Pennsylvania, including artisans, entrepreneurs, and laborers of all sorts, had been able to combine under the rubric of the Republican party. But with Jefferson’s victory in 1800 and the decline of the Federalists, the radicalism of Leib and Duane became more conspicuous. The Leib-Duane faction began attacking all social and economic distinctions, even those naturally earned, denouncing the role of gentlemen in politics, and promoting a “happy mediocrity of condition” in all things, including property.76These radicals, who came to be called the “Malcontents” or the “Jacobins,” objected to the entire complex structure of America’s federal and state governments, its separation of powers, and, in particular, its independent judiciaries. Leib and Duane and their followers charged that the courts were not susceptible to popular control and that judges used the mysteries of the common law to enhance the privileges of the few at the expense of the many. By 1805 Leib’s extremism led his more conservative Republican critics to compare him to Robespierre.77

To move against some Federalist members of the judiciary, Leib and Duane combined with other radicals in the state legislature led by Nathaniel Boileau, a graduate of Princeton and a descendant of Huguenot immigrants, and Simon Snyder, a self-made man who in 1802 became speaker of the house in the state legislature and in 1808 governor of the state. Their radical cause was reinforced by an Irish-born immigrant from England, John Binns, who, like others, had fled the British crackdown on advocates of French revolutionary republicanism. Binns established the Northumberland Republican Argus, which, along with Duane’s Aurora, became an important mouthpiece for the reformers’ campaign. These factions condemned the common law for its “abstruse and technical phrases,” and for being “ill suited to the plain and simple nature of a Republican form of government,” and urged the state house of representatives to order the judges to simplify it.78

Although this measure failed, the radical Republicans in the state legislature, like their colleagues in the federal Congress, turned to the process of impeachment as a means of removing obnoxiously partisan Federalist judges. The first victim was Alexander Addison, a hard-line Federalist and president of one of Pennsylvania’s district courts of common pleas. Addison had helped suppress the Whiskey Rebellion and had furiously condemned the principles of the Virginia and Kentucky resolutions. In January 1803 the Pennsylvania house of represent atives impeached him, with the radical Republicans arguing that his opposition to the will of the people, and not any criminal act, was sufficient grounds for impeachment. After a two-day trial, with Addison conducting his own defense in what one newspaper called “the most insolent, arrogant and overbearing” manner, the senate convicted him on a party vote, removed him from office, and forbade him from ever again holding judicial office in Pennsylvania.79

Addison’s ouster scarcely satisfied the radical Republicans, and in 1805 they pressured the assembly to impeach three additional Federalists who were members of the state supreme court. By now, however, many other Republicans believed that the assault on the judiciary was getting out of hand. With the Republicans breaking apart into radical and moderate wings, the state senate was unable to muster the necessary two-thirds vote for the conviction of the three Federalist judges. The moderates argued that the judges were “the bulwarks of a limited constitution, against legislative encroachments.” Their power did not mean that they had any superiority over the legislature.“It implies nothing more than the people are superior to the legislature, and that the judiciary, as a coordinate branch of the government, charged with execution of certain powers, is bound to regard the will of the people, as expressed in the constitution, in preference to the will of the legislative body.” It was the same argument Hamilton had made nearly twenty years earlier in Federalist No. 78.80

By now the struggle had widened into a full-scale debate over the future of the common law and the character of judges in Pennsylvania. Republican governor Thomas McKean, who had been chief justice of the state supreme court for two decades, was appalled at the ignorance and narrow-mindedness of the populists in the assembly. The radicals, he said, were urging the barring of lawyers from the courts, the eliminating of the common law (or “lawyers law,” as they labeled it), and the substituting of untrained arbitrators for educated judges. But even more alarming, they were also contending that “all men of talents, lawyers, [and] rich men” were unqualified to sit in the legislature. These “clodhoppers,” as McKean called them, could not comprehend that the law was “a science of great difficulty and endless complications” and required “a lifetime to understand it.”81

With the radicals seemingly threatening “the destruction of our state Government,” McKean was able to gather to his side many moderate Republicans, or “Quids,” as Duane, the irascible editor of the Aurora, called them. (“Quids” after tertium quid : a “third something,” neither Federalists nor, in Duane’s opinion, true Republicans.) Perhaps McKean’s principal supporter and most loyal ally was Alexander J. Dallas, U.S. district attorney who had been secretary of the Commonwealth of Pennsylvania in the 1790 s. When the Republican party caucus dominated by the radicals denied McKean the gubernatorial nomination in 1805, McKean, Dallas, and other Quids combined with the Federalists to create a coalition ticket. The nature of the judiciary and the common law was the principal issue of the campaign.82

Dallas helped compose an address in 1805 that summarized the fears of the moderate Republicans that too much democracy was endangering Pennsylvania society. This address, widely distributed in newspapers and pamphlets, was one of the most comprehensive defenses of the judiciary and the common law made in these years. It contended that without the protection of the courts and the mysterious intricacies of the common law,“rights would remain forever without remedies and wrongs without redress.” The people of Pennsylvania, the address declared, could no longer count on their popularly elected legislature to solve many of the problems of their lives.“For the varying exigencies of social life, for the complicated interests of an enterprising nation, the positive acts of the legislature can provide little fundamental protection alone.”83 These views represented a severe indictment of democracy.

McKean narrowly won the bitterly contested election for the governorship. Following a failed attempt to impeach McKean, the coalition between the Leib-Duane faction and the Snyderites began to break apart, especially as Snyder and his followers glimpsed the possibility of actually attaining the governorship if they moderated their message. While Leib, who was back in the state legislature after serving in the U.S. Congress, demanded that the state remove all English cases from state law and codify the entire common law, the Snyderites argued for much more piecemeal reform, with Nathaniel Boileau contending “it would not be practicable to reduce the common law at once into a text.”

This conflict between these two popular reform factions broke new political ground in America. For the first time, no “aristocracy” was involved; both of the two contesting groups called themselves “democrats,” and both spoke in the name of the common man.84

But the issue of the role of the courts versus the role of the legislature continued to plague Pennsylvania.“The acts of the legislature form but a small part of that code from which the citizen is to learn his duties, or the magistrate his power and rule of action,” declared the presiding judge Moses Levy in the Pennsylvania cordwainers’ trial of 1806 . These legislative acts were simply the “temporary emanations of a body, the component members of which are subject to perpetual change,” and they applied “principally to the political exigencies of the day.” Only the unwritten common law could supply what was legally needed. Only “that invaluable code” composed of ancient precedents and customs could ascertain and define,“with a critical precision, and with a consistency that no fluctuating political body could or can attain, not only the civil rights of property, but the nature of all crimes from treason to trespass.” The conclusion was clear. Only the common law whose “rules are the result of the wisdom of ages” could adapt to the novel and shifting circumstances of modernity and regulate “with a sound discretion most of our concerns in civil and social life.”85

Yet the Pennsylvania radicals continued to assault judges for their abuse of discretionary authority.“Judges,” the popular radicals contended in 1807,“very often discover that the law, as written, may be made to mean something which the legislature never thought of. The greatest part of their decisions are in fact, and in effect, making new laws.”86

Other states also experienced bitter clashes over the common law and the independence of the judiciary. Since opponents of the common law made much of its British origins, its defenders were hard put to find for the common law in America a basis other than ancient English precedents. Confronted with the argument that only the popularly elected legislature ought to make law, apologists for the common law contended that it also had popular will behind it. Just as statutes were binding because they were enacted with the consent of the legislature,“so these unwritten customs and regulations . . .,” declared Jesse Root of Connecticut in 1798,“have the sanction of universal consent and adoption in practice.”87

But the radical reformers would not agree with what to them seemed sophistry. Their every attempt to codify and eliminate the common law from the courts thus split the Republicans. Many moderate Republicans who had hitherto condemned the courts as aristocratic bastions of Federalist privilege came to appreciate them and their ability to secure all sorts of commercial property from the ravages of radical populists. Thus in state after state Republican parties began breaking apart over support of the judiciary and the protection of property, especially the new sorts of dynamic commercial property owned by rising Republican entrepreneurs and businessmen. What was important, however, was that the moderate Republicans were able to resist the radical positions without repudiating either the people or democratic politics.

In 1807 the most extreme Republicans in Massachusetts expected that the election of Republican James Sullivan as governor would at long last enable them to bring the state’s judiciary to heel. Instead, Sullivan in his inaugural address defended the independence of the courts, declaring that “the Judicial department will invariably claim the first regard of patriotism. Upon its wisdom and purity, freedom, property and all the valuable possessions in civil society depend.”88 The burgeoning commercial economy of America made many Republicans like Sullivan as eager to defend the courts and property as the traditional proprietary-minded Federalists had been.

Everywhere moderate Republicans came to understand that a strong independent judiciary and a flexible common law were crucial, as one North Carolinian put in 1806, to meeting the needs of an “improving people, whose minds are expanding, whose wants are increasing, and whose relative situations are daily changing.”89 They came to see that the radical attempt to eliminate the common law entirely and to make the judiciary dependent on the legislatures or on the people endangered both private rights and economic progress. And everywhere they sought either to thwart or evade the assaults on the judiciary and common law.

When, for example, the Ohio legislature in 1806 directly prohibited the common law from running in the state’s courts, the state’s judges somehow found ways of bringing it back into effect. Judge Benjamin Tappan of the state’s Fifth Circuit declared in 1817 that, despite the legislature’s edict, the common law,“founded on the laws of nature and the dictates of reason,” had to be maintained.“Not only is the common law necessarily in force here,” said Tappan, who was the brother of the famous abolitionists Arthur and Lewis Tappan,“but . . . its authority is superior to that of the written laws; for it not only furnishes the rules and principles by which the statute laws are construed, but it ascertains and determines the validity and authority of them.”

Of course, Tappan’s reasoning in Republican-dominated Ohio aroused a storm of controversy, including a four-hundred-page rebuttal. Judge John McLean of the state supreme court was shrewder and more subtle. In the same year, 1817, he conceded that the common law of crimes did not exist in Ohio’s courts. At the same time, however, this future U.S. Supreme Court justice could not hide his respect for the common law;“for,” he said,“if the common law were expressly repealed by statute, the shadow only would disappear—the life and spirit of it would remain.”90

Thus in 1842 Justice McLean of the federal Supreme Court joined Justice Joseph Story’s decision in Swift v. Tyson in affirming the authority of the federal courts to decide cases on the basis of “general principles and doctrines of commercial jurisprudence” and not on the basis of the decisional law of the state of New York. In this decision Story construed Section 34 (the Rules of Decision Act) of the Judiciary Act of 1789 in such a way as to grant the federal courts common law authority over a wide variety of civil disputes, some of which were actually outside the limits of Congress’s legislative power. Although Swift v. Tyson was eventually overturned in 1938 in Erie Railroad Co. v. Tompkins, partly on the grounds that the doctrine set forth by Story was “an unconstitutional assumption of powers by the Courts of the United States,” the Swift decision in 1842 indicated that the fast-moving, democratic, and commercial society of the early Republic had a need for the flexibility of the common law that could not be stifled.91

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