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THE AMERICAN JOURNAL OF LEGAL HISTORY
Vol. XLIV
MAEVA MARCUS, ed., The Documentary History of the Supreme Court of the
United States, 1789-1800, vol. 6: Cases, 1790-1795. New York: Columbia
University Press, 1998. xl, 809 pp. $125.00
Maeva Marcus's sixth volume of The Documentary History of the Supreme
Court provides a wealth of documentation that is absolutely essential to any study
of the Supreme Court in the early Republic. The first five volumes in this series
already have provided valuable information on the Court's early years. Volume I
painstakingly reproduced the Court's minutes for that era and covered the appointment process. Volumes 2 and 3 dealt with the Justices' activities in the circuit
courts, volume 4 covered early federal legislation regulating the judiciary, and
volume 5 treated suits against states. Volume 6 covers all the cases (other than
state sovereign immunity cases) considered during the years 1790-1795 and also
covers the Court's 1793 decision not to provide an advisory opinion sought at the
President's behest.
The paucity of cases during the Court's earliest years is palpable. There is an
average of only about four a year. Volume 6 takes up each case in chronological
order. The presentation of each case begins with an extended narrative introduction, which includes citations to letters, newspaper articles, and other documents.
Many but not all of the items cited are reproduced partially or in full following the
introductions. At the end of the volume, there is a copious index, but unlike the
"copious" indices of the eighteenth century, it is quite extensive. In particular the
index is more than a list of names that appear in the volume. It guides the reader to
discussions of ideas found throughout the book.
By and large there are no astonishing revelations in this volume. For example, the appendix documenting the Court's refusal to give the Washington
Administration an advisory opinion at the height of the Neutrality Crisis of 1793
provides nothing new of significance. Nevertheless it has clear value in that a
complete set of the pertinent letters are now conveniently available.
Nevertheless, valuable tidbits abound. For example, in the section on
Georgia v. Brailsford, an original jurisdiction case in which the Supreme Court
empaneled a jury, we are treated to Chief Justice Jay's understanding of the jury's
authority to decide issues of law. Although he believed that "the Court are the best
judges of law," he instructed the petit jury that they had a right "to determine the
law as well as the fact in controversy" (p. 173). Jay's understanding lends credence to the attempt some six years later by the defense attorneys in United States
v. Callender to argue the constitutionality of the Sedition Act to the jury.
Another tidbit is found in the section on Glass v. Sloop Betsey. Until now I
had agreed with Julius Goebel's idea that Justice Paterson, on circuit, had affirmed
the District Court's judgment in Glass in order to facilitate a speedy determination
of the issues by the Supreme Court. But a newspaper report of Paterson's circuit
court decision indicates that his affirmance was based upon his understanding of
the law, which he fully elaborated in court, rather than political expedience.
Paterson's circuit court opinion is difficult to square with the Supreme Court's
decree three months later that the Court was "decidedly [and] clearly of opinion"
that he was wrong (p. 348). Dallas reported that the decision was unanimous, but
perhaps Dallas was wrong. Or perhaps Paterson changed his mind as he appears
subsequently to have done in Calder v. Bull.
Finally volume 6 contains additional hints that the early justices were not as
concerned about the appearance of conflicts of interest as we are at the beginning
of the twenty-first century. In volume 5 we saw that Justice Wilson's opinion in
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BOOK REVIEWS
Chisholm v. Georgia furthered his personal financial interest in the Indiana
Company's claim against the State of Virginia. We also saw that Chief Justice Jay
did not view his close connection with the Van Staphorst dispute in Van Staphorst
v. Maryland as a basis for recusal. Now we see Justice Cushing participating in
the Court's refusal to review a judgment rendered by a state court over which he
had presided as a state chief justice.
All in all this documentary series is quite valuable, and I have nothing but
admiration for the careful attention to detail that the series exemplifies.
Nevertheless I would quibble with a defect caused by the series' overall structure.
By concentrating upon the Court's judicial docket, the series deflects our attention
from the justices' nonjudicial activities. This defect has some significance because
the early justices clearly did not view this job the way justices do today.
Notwithstanding the appendix to this volume, the early justices frequently
rendered advisory opinions to the executive branch. If these advisory opinions
related to specific federal cases, they are reprinted. If not, they are not. I am sure
that we will not miss having a copy of Chief Justice Jay's advisory opinion on the
Sinking Fund Commission's statutory authority to repurchase government debt.
But what of Chief Justice Ellsworth's 1796 advisory opinion on the president's
obligation to provide the House of Representatives with papers related to the Jay
Treaty. Ellsworth's opinion addressed issues that were quite controversial in 1796
and that persist to the present. The series' emphasis upon the Court's caseload also
has deprived us of a complete coverage of Chief Justice Jay's and Chief Justice
Ellsworth's diplomatic missions to Europe.
WILLIAM R. CASTO
Texas Tech University
CHARLES HOBSON, ed., The Papers of John Marshall, vol. IX:
Correspondence, Papers, and Selected Judicial Opinions, January /820December /823. Chapel Hill: University of North Carolina Press, 1998.
xxxviii, 396 pp. $60.00.
Constitutional scholars need no introduction either to Charles F. Hobson or
the Marshall Papers project. Since 1966, the project has been pulling together the
documentary record of John Marshall's private and public life. Hobson, whose
The Great Chief Justice: John Marshall and the Rule of Law appeared in 1996,
assumed editorship of The Papers of John Marshall with Volume V. The first
eight of a projected eleven volumes covered Marshall's life through December
1819; this ninth and latest volume extends the coverage from January 1820
through December 1823.
Volume IX comprises 138 documents published in full and either calendars
or lists of another seventy-eight. There are five Supreme Court opinions and
twenty-three circuit opinions Marshall delivered in the United States Circuit Court
for Virginia. Hobson has continued the practice he began in Volume VI of judiciously sampling Marshall's judicial opinions. The Marshall Papers project did
not intend to produce a documentary record of the Marshall Court or a complete
collection of the Chief Justice's opinions, but to include most constitutional opinions and enough nonconstitutional opinions to demonstrate Marshall's jurisprudence in the kinds of cases that most occupied the Court's attention and that best
show him and the Court in context. Hobson pays special attention to Marshall the
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