History of the American BAR

Chapter XI

The Federal Bar and Law, 1789-1815

With the year 1789, American law as a national system began; and its early history falls, naturally, into two periods, the one closing in 1801, with the appointment of Chief Justice Marshall, the other with the end of. the War of 1812, in 1815.

By far the most important work which greeted the first Congress when it met in 1789, was the establishment of a judicial system for the country. The honor of drafting the famous statute known as the Judiciary Act one of the most remarkable and impregnable pieces of legislation ever framedC must be attributed chiefly to Oliver Ellsworth.

On April 7, 1789, the new Senate appointed Oliver Ellsworth of Connecticut, William Paterson of New Jersey, William Maclay of Pennsylvania, Caleb Strong of Massachusetts, Richard Henry Lee of Virginia, Richard Bassett of Delaware, William Few of Georgia and Paine Wingate of New Hampshire, “a committee to bring in a bill for organizing the judiciary of the United States.” On June 12, the Committee, through Mr. Lee, reported a bill which was passed, July 17, by vote of fourteen to six, three of the Committee–Lee, Maclay and Bassett–opposing it. In the House of Representatives, there was bitter opposition led by Livermore of New Hampshire, to that part of the bill establishing the inferior courts. It was argued that a disastrous conflict of jurisdiction with the State courts would inevitably result; that the Federal courts would eventually “swallow up the State courts;” that the expense would be great; and, finally, that such Federal courts were entirely unnecessary, as the jurisdiction could as well be conferred on the various State courts with an appeal or writ of error in Federal cases to the United States Supreme Court(1)

The bill was defended by Sedgwick, Ames and Gerry of Massachusetts, Benson of New York and Madison of Virginia; and after an amendment striking out the Circuit and District Courts had been rejected by a vote of thirty one to eleven, the bill was passed.

Approved by the President, September 24, 1789, the Act provided for a Supreme Court with a Chief Justice and five Associate Justices; for thirteen District Courts, one for each State, and also for the Districts of Maine and Kentucky (not then States); and for a division of the country into three Circuits–the Eastern, the Middle, and the Southern, and for a Circuit Court for each, consisting of two Justices of the Supreme Court and the District Judge of the District where the Court was held.(2)

It is interesting to note that, though now regarded as a Particularly wise and far-sighted measure, the Judiciary Act received bitter criticism in those early years. Thus, the great North Carolina lawyer, William R. Davie, wrote to Judge James Iredell, August 2, 1791:

“I sincerely hope something will be done at the next session of Congress with the Judiciary Act; it is so defective in point of arrangement, and so obscurely drawn or expressed that, in my opinion, it would disgrace the composition of the meanest Legislature of the States. The Attorney General’s Report is a type of itB an elegant piece of unmeaning obscurity.

And Samuel Dexter, in his argument in 1816, in Martin v. Hunter’s Lessee (I Wheat. p. 305) said:

“That great man, and those who advised him improvidently, assented to a law [the Judiciary Act] which is neither constitutionally nor politically adapted to enforce the power of the National Courts in an amicable and pacific manner.


(1) See The New Court Bill – American Law Review Vol. X (1876).
(2) By the Act of 1792-1793, c. 22, the requirement that two Supreme Court judges must be present, was repealed.


“During this period,” says Kent, “the Federal Courts were chiefly occupied with questions concerning their admiralty jurisdiction, and with political and national questions arising out of the Revolutionary War, and the dangerous influence and action of the war of the French Revolution upon the neutrality and peace of our country- the principles of expatriation, of ex post facto laws, of constitutional taxes.”

The first case on the docket of the Supreme Court was Vanstophorst v. The Slate of Maryland in the August term of 1791; but it was never argued.

During these first eleven years, the Court decided only fifty-five cases; but two of these, however, were of highest importance. The first,- Chisholm v. Georgia (2 Dallas, 419), –in 1793, in which the Court upheld the right of an individual to sue a State, emphasized the sovereignty of the new United States over one of its members, but at the same time nearly caused a disruption of the young Nation– owing to the outburst of resentment at the decision, coming from those who had opposed the Constitution as an infringement on States' Rights. It was argued by Edmund Randolph for the plaintiff, and a remonstrance was filed by Jared Ingersoll and Alexander J. Dallas of Pennsylvania for the State of Georgia, which declined to formally appear.(1) The other–Ware v. Hylton, (3 Dallas, 199), the famous British Debts case in 1796, involved a question of immense pecuniary importance; namely, whether the State laws, confiscating and sequestrating debts due to a hostile enemy, or allowing their payment in depreciated money, were valid against the provisions of the Treaty with England. In Virginia


(1) See Life of Patrick Henry, by William Wirt (1818); Georgia as a Litigant --Georgia Bar Ass. Proc., VoL XlII; Letters and Times of the Tylers, by Lyon G. Tyler.


In the Supreme Court, the case was argued by Edward Tilghman and William Lewis, of Philadelphia for the creditors, and John Marshall and Campbell for the debtors, the latter losing their case, and the Court holding a treaty to be supreme over State law.

Of Marshall’s argument- his only one in the Supreme Court – William Wirt who was present wrote:

“Marshall spoke, as he always does, to the judgment merely, and for the simple purpose of convincing. Marshall was justly pronounced one of the greatest men of the country. He was followed by crowds, looked upon and courted with every evidence of admiration and respect of his mind. Campbell was neglected and slighted, and came home in disgust. Marshall’s maxim seems always to have been, `aim exclusively at strength.'”

Two other cases in the Supreme Court during this period deserve mention. One, Hylton v. United Stages (3 Dallas, 171), in 1796, which decided the meaning of the term “direct tax” in the Constitution, is noteworthy as being the only case ever argued before the United States Supreme Court by Alexander Hamilton. Associated with Hamilton was Charles Lee, United States Attorney-General, and opposed to him were Alexander Campbell, United States District-Attorney for Virginia, and Jared Ingersoll, Attorney-General of Pennsylvania (1)

Of Hamilton’s argument, Judge Iredell wrote, February 26, x796:(2)

“The day before yesterday Mr. Hamilton spoke in our court attended by the most crowded audience I ever saw there, both Houses of Congress being almost deserted on the occasion. Though he was in very ill health he spoke with astonishing ability, and in a most pleasing manner, and was listened to with the profoundest attention. His speech lasted about three hours.”

A contemporary newspaper account stated: (3)

“The whole of his argument was dear, impressive, and classical. The audience which was very numerous and among whom were many foreigners of distinction and many of the members of Congress, testified the effect produced by the talents of this great orator and statesman.”


(1) In Springer v. U. 5., 102 U.S. 586 (1881), Chief Justice Chase said of the Hylton case; "It was one of great expectation, and a general interest was felt in its determumu, see also the history of the case given in Chase's opinion.
(2) Life and Letters of James IreJell, by Griffith J. McRee, Vol. II (1857).
(3) Works of Alexander Hamilton, by Henry Cabot Lodge, Vol. VII.


Another case – Georgia v. Brailsford (3 Dallas, I), in 1792, argued by Jared Ingersoll and Alexander J. Dallas, against William Bradford, Edward Tilghman and William Lewis is of interest as one of the very few cases in which a special trial by jury has ever been had in the United States Supreme Court.

In these eleven years, the Court suffered many changes. In 1791, Rutledge resigned to become Chancellor of South Carolina. (1) In 1795, Jay resigned, as Chief Justice, to become Governor of New York. Ellsworth, who was appointed Chief Justice, in 1796, resigned in 1800 because of ill health,(2) (1) Rutledge was appointed Chief Justice on Jay’s resignation, and presided over the Court during the August Term of 1795; but the Senate rejected his nomination.

William Cushing was appointed, but declined.

(2) Ellsworth, during his term as Chief Justice, served as Envoy Extraordinary and Minister Plenipotentiary to France, 1799-1800 ' At this time, he visited England, and was present at the trial of the famous case of Rex v. Waddington, I East, in which Mr. Law (Lord Ellenborough), Mr. Erskine, Mr. Gatrow and Mr. Scott (Lord Eldon) were counsel. Wharton in his notes to American State Trials thus describes the scene in Westminster Hall:

“Notwithstanding Mr. Jay’s previous appearance at the Court of St. James, and the contemporaneous appearance there of Mr. Rufus King, the fame of their accomplishments had not reached the King’s Bench, whose precincts they had probably never invaded; and it was consequently with great curiosity that the elder lawyers, whose notions of America had been derived from the kidnapping cases which were the only precipitate cast on the reports of the privy Council by the current of Colonial litigation, spied out the American Chief Justice. Mr. Ellsworth=s simple but dignified carriage was in happy contrast to the awkwardness of the English Chief Justice (Kenyon); and as soon as it was discovered that, though his worn and marked features bore a stamp which had not then become familiar to the English eye, he was neither an Indian nor a Jacobin . . . he was surrounded by a knot of lawyers, curious to know how the Common Law stood transplanting.

For many years, the authority, as law, of the doctrines announced by Marshall in this case were bitterly opposed by Jefferson and his adherents; and he wrote to George Hay during Burr’s trial, in 1807:

"I observe that the case of Marbury v. Madison has been cited in the Burr case, and I think it material to stop at the threshold the citing that case as authority, and to have it denied to be law ....I have long wished for a proper occasion to have the gratuitous opinion in Marbury v. Madison brought before the public and denounced as not law; and I think the present a fortunate one because the case occupies such a place in the public attention. I shall be glad, therefore, if in noticing that Case, you could take occasion to express the determination of the Executive that the doctrines of that case were given extra-judicially and against law, and that their reverse will be the rule of action with the Executive." (1)


(1) See Writings of Thomas Jefferson, Vol. IX.


This power to declare legislative acts void was asserted as early as 1780 by the Supreme Court of New Jersey, in Holmes v. Walton, a case referred to in State v. Parkhurst (4 Halstead, 444). The Virginia Court decided the same way, in Corn. v. Caton (4 Call, 5), in 1782, and in the Case of the Judges (4 Call, 135), in 1788, and in Kamper v. Hawkins (I Va. Cases, 20), in 1793. The Rhode Island Court held the same in Trevett v.. Weeden, in 1786; North Carolina and Massachusetts followed with cases in 1788.

For interesting discussion of the subject, see Origin and Scope of the American Doctrine of Constitutional Law, by Prof. J. B. Thayer, Harv. Law, Rev., Vol. XII (1893); and J. W. Burrage, in Political Science Quarterly, Vol. X 1895); and An Essay on Judicial Power over Unconstitutional Legislation, by Brinton Coxe; The Relation of the Judiciary to the Convention, by W. M. Meigs, Amer. Law Rev., Vol. XIX; The Supreme Court and Unconstitutional Acts of Congress, by E. S. Corwin, Michigan Law Rev., Vol. IV; The Conflict over Judicial Powers in the United States 1870 by Charles G. Haines, Columbia Univ. Studies in Hist. Eton. Public Law.

See also especially addresses of James T. Mitchell and Hampton Carson in John Marshall, Life, Character and Judicial Services, by John F. Dillon (1803); Laws and Jurisprudence of England and America, by J, F. Dillon (1895); and elaborate note in Marshall’s Complete Constitutional Decisions Annotated, by John F. Dillon, p. 39 (1903).

Between 1789 and 1812, it may be said that the growth of American law was largely due to the lawyers and judges who moulded it. In 1812, there arose, however, a new factor to which may be attributed not only the rapid development of law, but also the far more important development of the legal profession. It is a singular fact that the War of 1812, while an event of slight influence on the political history of this country, had an incalculable effect upon American legal and economic history. To the economic conditions to which it gave rise, may be attributed the start of many of the branches of modern law and the consequent enhancement of the practise, importance and scope of the legal profession.

The impress of the War of 1812 on legal history is markedly seen in the following directions: first, in giving rise to a vast number of decisions on prize and admiralty law; second, in the growth of manufacturing corporations and the rise of the important branch of the law relating thereto; third, in turning commercial and industrial efforts from shipping and agriculture to manufactures and inventions, and consequently in establishing a system of patent law; fourth, in necessitating the development of internal means of communication–the coasting trade being ruined by the British blockade–and thus promoting the construction of canals, multiplying turnpikes, and preparing the people to demand the swifter means of transportation by steam railroads; fifth, in shutting off the country from its supply of English law reports and books, and thus throwing the lawyers and the courts upon strictly American resources in the solution of new legal problems.

The first great development in American law was naturally in that branch known as maritime, admiralty and prize law; and to the vast growth in this class of cases the American lawyer of the period owed most of his prosperity.

In New York, the first case involving a business corporation (other than lock, bank, turnpike, or insurance) does not appear until 1816- Union Cotton Manufactory v. Lobdell 13 John. 462). (1)

In the Supreme Court of the United States, there had been but two cases involving corporation law between 1800 and 1815. Both, however, had a profound effect upon the development of the law- the one in restricting the growth of corporate liability, the other in emancipating corporate action from old Common Law bonds. In the first, in 1804, Head v. Providence Ins. Co. (5 Cranch, 600), Marshall laid down the doctrine that: “When the charter prescribes to them a mode of contracting, they must observe that mode, or the instrument no more creates a contract than if the body had never been incorporated."

In the other, Bank of Columbia v. Patterson, Admr. (7 Cranch, 299) in 1813, Mr. Justice Story held (largely on the authority of Massachusetts cases) that the old doctrine that a corporation could only act under seal was obsolete, and that “it could answer no salutary purpose, and would almost universally contravene the public convenience.": No greater impetus could have been given to business corporations than this decision, which thus


(1) See also early corporation cases. Portsmouth Livery Co. v. Wilson, 10 Mass. 91. Medway Cotton Manufactory v. Adams, 10 Mass. 360. Salem Iron Factory v. Danvets, 10 Mass. 514- New York Slate Co. v. Osgood, 11 Mass. 60. Emerson v. Providence Hat Mfg. Co., 12 Mass. 237.
(2) As an illustration of the difficulties of law practise at this time, arising from the scarcity and infrequency of law reports the Court cites, in Danforth v. Schoharie Turnpike Co., 1: John. 231, decided in May, 1815, this case of Bank of Columbia v. Patterson, Arline., as authority; but the reporter adds in a note, "This case was cited and read to the Court from a gazette dated March 18, 1815," notwithstanding the case cited was decided in the United States Supreme Court, in 1813.


The rise of corporations was not viewed, however, with equanimity, even in those early days. And many lawyers, as well as laymen, echoed the sentiments of James Sullivan, Attorney-General of Massachusetts, who said in 1807 in his argument, in Ellis v. Marshall (: Mass. 269), a case in which Theophilns Parsons and Samuel Dexter, also appeared:

“The great increase of corporations for almost every purpose is seriously alarming …. Interested and corrupt motives are growing daily more prevalent from this source. The independence and integrity of every branch of our government are attempted; and it is full time that a check be put to this spirit. And to an independent and enlightened judiciary can we alone look for its application.”

With the development of manufacturing business, came the growth of insurance law. The first fire insurance corporation in the United States was The Philadelphia Contributionship for Insuring Houses from Loss by Fire incorporated on the mutual plan, in 1752. For many years, however, most of the fire insurance companies were unincorporated associations, existing principally in New York.

One of the earliest reported cases of fire insurance was Stetson v. Mass. Mutual Ins. Co. (4 Mass. 330), in 1808. There was no text book on the subject, however, prior to 1815. Marine insurance was an early and well developed part of the law, although carried on, until after the beginning of the Nineteenth Century, largely by private individuals unincorporated. Life insurance was, in 1815, hardly known, the earliest case being that of Lord v. Dall (12 Mass. 115), in 1809. Accident insurance was unknown. The limited scope of the law of the times is perhaps best -illustrated by the fact that the law of torts which makes so large a part of the body of modern law, was, in 1815, Practically confined to cases of trespass to person or property, assault, trover, replevin, and slander; actions of deceit and actions for negligence were very few. In Kirby’s Reports in Connecticut, of two hundred and one cases from 1785 to 1788, fifty-two are actions of tort, of which one half are trespass, and one half actions of disseizin or ejectment. In Harris and McHenry’s Reports in Maryland, published in 1809, covering the years 1658 to 1775, a large proportion of the cases are actions of ejectanent or trespass.