THE ROLE OF THE CIRCUIT COURTS IN THE DEVELOPMENT OF FEDERAL JUSTICE AND THE SHAPING OF UNITED STATES LAW IN THE EARLY REPUBLIC: SUPREME COURT JUSTICES WASHINGTON, LIVINGSTON, STORY AND THOMPSON ON CIRCUIT AND ON THE COURT His Honour David Lynch A thesis submitted in partial fulfilment of the requirements of Liverpool John Moores University for the degree of Doctor of Philosophy April 2015 Table of Contents Abstract Acknowledgments Introduction …………………………………………………………..……… 1 The Myth of Marshall’s Dominance …………..…………………………… 8 Washington, Livingston, Story, and Thompson …………………………… 19 Chapter 1 The Federal Circuit Courts: Shaping Local and National Justice for an Emerging Republic………………………………………………………… 30 The Politics of Federal Law ………………………………………………… 30 The Grand Jury Charge: A Bond between Government and Citizen………... 39 The Role of the Circuit Courts in the Constitutional Ratification Debates….. 44 The Jurisdiction of the Federal Circuit Courts……………………………….. 47 ‘A Certain Uniformity of Decisions in United States Law’…………………... 50 Conclusion……………………………………………………………………. 63 Chapter 2 Bushrod Washington: The Role of Precedent and the Preservation of Federalism Ideology…………………………………………………………… 66 A Federalist’s Journey from Revolutionary Virginia to the Supreme Court… 67 Justice Washington and the Role of Precedent in the Federal Legal System... 70 Property Rights and Commercial Law on Circuit……………………………. 84 States’ Rights, the War of 1812, and Slavery ……………………………….. 94 Conclusion……………………………………………………………………. 107 Chapter 3 Brockholst Livingston: Consolidating Mercantile Law…….…… 113 The Early Years: Political Allegiances: From Federalist to Republican…….. 114 Commercial Law for New York State……………………………………….. 120 A Republican on a Federalist Supreme Court……………………………….. 128 Maritime and Commercial Law for the United States……………………….. 139 Conclusion……………………………………………………………………. 147 Chapter 4 Joseph Story: Admiralty Expertise and the Importation of Common Law……………………………………………………………………………… 152 Modernizing Law and Procedure on the First Circuit………………………... 158 Admiralty and the Enforcement of Embargo Laws …………………………. 162 Consistency by the Sharing of Expertise…………………………………….. 176 Importing Common Law into the Federal Legal System…………………….. 189 Conclusion……………………………………………………………………. 192 Chapter 5 Smith Thompson: Promoting Commerce, State Sovereignty, and Protecting Minority Interests …………………………………………………. 196 State Supreme Court: Statutory Interpretation and New York ‘Hard Law’….. 199 Contractual obligations on the Second Circuit and on the Court ……………. 210 State Sovereignty……………………………………………………………… 217 The Cherokee Nation and the African-American Slave……………………… 223 Conclusion……………………………………………………………………. 229 Conclusion………………………………………………………………………. 234 Bibliography…………………………………………………………………….. 254 Primary Sources: Founding Documents, Statutes & Treaties, Law Reports…………………….. 254 Books………………………………………………………………………….. 255 Newspapers & Government Department Documents………………………… 257 Secondary Sources: Books………………………………………………………………………….. 257 Articles and Essays……………………………………………………………. 261 Unpublished thesis……………………………………………………………. 263 Abstract While scholars have focused on the importance of the landmark decisions of the United States Supreme Court and its Chief Justice, John Marshall, in the rising influence of the federal justice system in the early Republic, the crucial role of the circuit courts in establishing uniformity of federal law and procedure across the nation has largely been ignored. This thesis seeks to remedy this lack of research on circuit courts by revealing the central role of their presiding Supreme Court justices in the successful development of a national court system drawn up from the ‘inferior’ courts rather than down from the Supreme Court to the lower jurisdictions. This thesis argues that, at a time when the Supreme Court had few cases to consider, all of the nation’s law was formulated by the lower courts; with very few decisions appealed, the circuit court opinions were invariably accepted as final, settling the law for each circuit and for the nation if followed by other justices. Therefore, in the early years, it was the circuit experience and not Supreme Court authority which shaped United States law. This thesis contributes to an understanding of this early justice system because of its focus on and the depth of its research into the work of the circuit courts. Through detailed analysis, it reveals the sources used by the justices to influence the direction of the law and, by its reading of almost 2000 cases tried by four prominent Marshall associate justices, presents insights into momentous issues facing the Union. The thesis examines the generality of the circuit work of each justice but pays particular attention to the different ways in which each contributed to the shaping of United States law. Understanding the importance of the role of the circuit courts leads to a more informed reading of early American legal history. Acknowledgments. I extend my very special thanks to my Director of Studies, Dr Colin Harrison, for his constant support, helpful ideas, and countless suggestions throughout the entire research process. I also express my gratitude to my second supervisor Professor Glenda Norquay for her many pointers on structure and style and to my third supervisor, European Law Specialist Dr Carlo Panara, for his long range legal analysis from Germany where his current research has led him. I have been fortunate in having as an external supervisor an American who is also a United Supreme Court specialist. Dr George Conyne of the University of Kent at Canterbury has been invaluable in ensuring that my facts are accurate, that I prove my arguments and consider both sides of Federalist and Republican philosophy. I would also like to thank the librarian and staff at Middle Temple for the use of the United States Reports and to the Institute of Advanced Legal Studies for arranging access to the Federal Cases. Finally I owe a huge debt of gratitude to my wife Ann for tolerating this obsession for the past four years. She understood retirement to mean something completely different. Introduction This thesis examines the role of the United States circuit courts in the formation of a federal legal system in order to understand the extent to which the opinions of Supreme Court justices, presiding over those courts, individually and collectively, shaped federal law to meet the political and economic challenges facing the emerging Republic. The focus is on the period 1801-1835, the tenure of Chief Justice John Marshall, because this was the time in American legal history when the most defining and far reaching federal law foundations were laid. A number of issues faced the justices of this era. They were tasked with riding circuit with few federal statutes or Supreme Court opinions to guide them and had to decide which sources of law to use to achieve a uniform federal justice system. There were legal and political dimensions of their circuit work. First, they administered federal criminal law and resolved civil disputes. Second, they strove to ensure that the novel concept of federal justice was well-received regionally. My investigation of the role of the circuit courts has led me to question the premise that the Supreme Court rose to prominence, in the main, through its landmark decisions. This thesis examines a factor in the development of the federal court system which has remained largely unexplored. Scholars covering the crucial early years of the Republic have concentrated on Chief Justice John Marshall and the major constitutional Supreme Court opinions. Those opinions which asserted the power of judicial review, involving the right to strike down as unconstitutional federal and state legislative acts, have deservedly commanded academic interest 1 because of the part they played in the Court’s rising influence.1 However, such an approach to the Court’s history ignores the role of the justices on circuit in the emergence of federal law which can be ascertained only by examining the disputes which fell for resolution in the circuit courts and the manner in which the justices determined the issues. That is the basis of this research which focuses on the legal principles established by the large number of cases dealt with at circuit level at a time when the Supreme Court had very little business to conduct. Domnarski (1996) puts it well when he writes, ‘the lower federal courts are where the action is.’2 Whilst he refers to modern times, he accurately represents the position of the Early Republic. The research also examines the effect on the development of federal law of the political tensions between the Republican-led Congress and the judicial nationalism of a Federalist dominated Supreme Court; its struggle for the sole right to interpret the spirit and meaning of the United States Constitution and for the power, on the grounds of uniformity, to review federal and state legislation and state court decisions. It also investigates the effect these ideological differences had on the justices’ circuit opinions. 1 The major works on the Supreme Court are 1. Charles Warren, The Supreme Court in United States History, 2 vols. Revised edition (Boston: Little Brown & Co., 1926); 2. George Haskins & Herbert A. Johnson, History of the Supreme Court of the United States, vol. II, Foundations of Power: John Marshall, 1801-1815 (New York: Cambridge University Press, 2010), originally published by Macmillan Publishing in 1981;