The Early Court: Part 1

Part One: Constitutional Precedents from the Early Court

As the McLaughlin excerpt indicates, the first Congress—the first Senate, in particular—turned its attention to creating a federal judiciary soon after the First Congress convened in 1789. The Senate’s action was not without controversy, for the Constitution does not require the establishment of a full-blown national judicial system. The Virginia Plan presented at the Philadelphia constitutional convention proposed the establishment of a federal judiciary with a supreme court and lower, or “inferior,” courts. The convention, on a close vote, rejected this proposal. The convention supported the creation of a national supreme court, but John Rutledge’s argument that the state courts were quite adequate to serve as the nation’s trial and intermediate appellate courts seems to have convinced a narrow majority of the state delegations to reject the necessity for federal courts below the supreme court. James Madison and James Wilson, two of the most active and influential members of the convention, immediately proposed language that made the supreme court required but gave Congress the discretion to create inferior courts if Congress saw fit to do so. This compromise was quickly approved and found its way into the first sentence of Article III of the Constitution:

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

McLaughlin also points out that the power of the newly created Supreme Court to review the decisions of state courts was “of paramount significance.” This power or jurisdiction in Section 25 of the 1789 Judiciary Act was to be the central issue in several cases that we will discuss in the next class.

As you have probably noticed, none of the three subjects addressed by the Supreme Court justices in the assigned materials looks quite like a legal case, and the Supreme Court’s handling of the three matters is also not typical of its usual methods. The article by Wilfred Ritz makes clear that the Hayburn, the Todd, and the Chandler cases were all tied to a series of laws passed by the early Congresses and even earlier by the Congress under the Articles of Confederation to provide pensions to deserving Revolutionary War veterans. Under the particular statutes in question, the Circuit Courts were to review the pensioners’ claims and make a report and recommendation to the Secretary of War, who would then make a final determination of whether the claimants should in fact receive pensions.

The Circuit Courts were each made up of two Supreme Court justices, who “rode circuit,” and one district court judge. The Circuit Court sitting in North Carolina only had one Justice (Iredell) at the time; presumably he was to be joined by Justice Johnson once Johnson was formally sworn in. (Ritz says Johnson did not take his seat until the full Supreme Court met on August 6, 1792, a date later than the Circuit Court decision.)

If we look first at the letters that accompany Hayburn’s Case, we see that the justices and the district judges that made up the three Circuit Courts in early 1792 all reacted adversely to their roles as pension commissioners under the March 23, 1792, version of the pension law. Several of the justices and district judges expressed their reluctance to serve as commissioners in their letters to the President. These letters are important because they indicate the rationale for the justices’ attitudes. Two principles are part of each of the letters. First, under the principle of separation of powers, the executive branch alone should be deciding who gets the pensions; such work is not judicial in nature and therefore not properly part of the justices’ duties. Secondly, the justices were concerned that the Secretary of War or, perhaps, Congress, not the justices or the courts, would make the ultimate determination of pensioners’ claims. In the words of Wilson and Blair: “Such revision and control [by the legislature or the executive] we deemed radically inconsistent with the independence of that judicial power which is vested in the courts.” Both of these principles are relied upon also in the court statement by Chief Justice Jay, Justice Cushing, and Judge Duane in which they agree to serve as commissioners, but only by formally wearing two hats or holding two separate federal offices—federal judges and pension commissioners. (Unlike members of Congress, federal judges are not prohibited from serving in an executive capacity as well as a judicial capacity.)

This brings us to the actual decision in Hayburn’s case. As perhaps you noticed in Ritz’s article: there was none! The Court took Attorney General Randolph’s motion for a writ of mandamus under advisement and then adjourned, apparently never to issue a ruling.

The Court did formally rule in the Chandler and Todd cases, but again without opinion. We might take a moment to explain the actual court action in these cases. The statutes upon which the Hayburn, Chandler, and Todd cases were based apparently required the pensioner commissioners/judges to approve the claims and make a report to the Secretary of War. The Secretary would then inform the Attorney General, who would go to the Supreme Court and petition for a writ of mandamus—a court order requiring, in this situation, the Secretary of War to pay the pensioner what was due. As Professor Ritz points out, there was some question in the early stages of the Hayburn case about the Attorney General’s legal status and authority to do so, but that problem was apparently straightened out and Attorney General Randolph eventually asked the Court for the writ. As I indicated above, the Court sat on the request, apparently never getting around to rule on it.

In the Chandler case, discussed in Professor Ritz’s article, the Court did rule on a request for the writ: “a mandamus cannot issue to the Secretary of War for the purpose expressed in the said motion.” (Note: this means the Court decided that it cannot issue any such writs under the pension statute, not that it will not issue a writ for Chandler because it rejects the validity of his particular claim.) But no rationale is given for the ruling.

Nor is a rationale given in the court papers of the Todd case, although apparently the Court did explain its reasons to Attorney General William Bradford. The evidence of the rationale is very brief, according to Bradford’s letter to Secretary of War Knox: the Supreme Court “has this day determined (in the case of Yale Todd) that such adjudications are invalid.” This statement is taken by Professor Ritz and legal historians to be a Supreme Court determination that the writ of mandamus procedure required by this statute was unconstitutional. The Court was refusing to do what Congress by law had required of them. The reasons for this drastic action are found in the letters and statement that we discussed above in relation to the Hayburn case.

Finally, the letter of Secretary of State Jefferson to the Court asking the justices for an informal opinion about various legal issues arising from our international treaties resulted in another precedent-setting “case” which was actually no court case at all. The Court’s 1793 reply letter to President Washington again referred to the principle of separation of powers for the Court’s decision to decline to provide “extrajudicial” opinions. This letter is the first statement of what has become known as the doctrine of “advisory opinions.” As later stated by the Court in a number of cases, the judicial power or sole constitutional function of the federal courts is to decide real cases and controversies. The Court may not render advisory opinions to the other branches of government if no actual controversy is before them.

Washington and Jefferson’s desire for the judges’ help in interpreting treaties was certainly an admirable one: they wanted to do what’s right. Just this situation had been addressed in the Virginia Plan at the Philadelphia constitutional convention. The Plan proposed a “Council of Revision”:

8. Resolved that the Executive and a convenient number of the National Judiciary, ought to compose a Council of revision with authority to examine every act of the National Legislature before it shall operate, & every act of a particular Legislature before a Negative thereon shall be final; and that the dissent of the said Council shall amount to a rejection, unless the Act of the National Legislature be again passed, or that of a particular Legislature be again negatived by ___ of the members of each branch.

Madison and Wilson repeatedly attempted to get the convention to approve the Council of Revision proposal, but though the proposal was debated on several occasions, the convention always rejected it. By directing Jefferson to write the letter, it seems plausible that Washington, who was present at the Convention when the Council of Revision was debated, was attempting to do informally what the Constitution did not formally authorize. Washington and Jefferson with their letter, like Madison and Wilson at the convention, were unsuccessful at securing judicial guidance prior to the filing of a case in court.

What we have seen in these materials is that the early Court established constitutional doctrines by rather unusual methods, according to today’s judicial standards, and I do not want you leaving this first class too confused. Therefore, I am asking you to read a case by the early court that will be more recognizable as a Court decision and opinion, though still not quite what you might expect if you have read modern court opinions. Please read the case of Hylton v. United States, a 1796 case that also presented a constitutional issue.

As you read the case, ask yourself these questions (I will answer them at the beginning of the second class):

1. What constitutional question did the case present?

2. Who won the case—Hylton or the United States?

3. What argument did Hylton make regarding the constitutional issue?

4. What argument did the United States make?

5. What was the Court’s rationale for its decision? Did “the Court” have a rationale? Was there a Court opinion? Assuming the Court did explain the reasoning underlying its decision, how—in what form or by what method—was the opinion rendered? (The answer can be found in “A Few Basic Points of Law” section above and the opinion itself.)

Note: The numbers in brackets throughout the Hylton opinion and other opinions that will be assigned in this course refer to the page numbers of the official edition of the opinions in the United States reports. The Hylton v. United States case appears in volume 3 of the United States Reports and began on page 171; thus, the citation for the case is 3 U.S. 171. (The references to “Dall.” or “Wheat.” or “Wall.” In parentheses refer to the first editions of the opinions prepared by individual court reporter such as A.J. Dallas, Henry Wheaton, William Wallace, and so on. The reference to United States Reports has largely superseded the reference to the volumes prepared by these early reporters.) Legal convention dictates that in referring to a particular page of the opinion, the number of the volume of the United States Reports and the number of the first page of the opinion be included. Thus a reference to page 174 of the Hylton opinion would be 3 U.S. 171, 174.