The Chief Justiceships of John Jay and Oliver Ellsworth

by William R. Casto

University of South Carolina Press CONTENTS

Editor's Preface xi Preface and Acknowledgments xv Repository Symbols xvii Short Titles and Abbreviations xix Introduction i 1 Creating the Court The Federal Courts' Subject-Matter Jurisdiction Judicial Appointments Good Behavior and Compensation Judicial Review Nonjudicial Duties Looking to the Future 2 The Judiciary Act of 1'789 Drafting the Judiciary Act Opposition to the Federal Courts The Seeds of a Compromiss Limiting the Supreme Court's Jurisdiction Federal Trial Courts: Admiralty Jurisdiction Shaping the Compromise on Federal Trial Courts The Congress Accepts Ellsworth's Compromise Congressional Instrumentalism 3 Selecting the Justices and Initial Operations The First Nominees Assessing Washington's Nomination Criteria

vii viii CONTENTS

4 A National Security Court 7 1 The Nootka Sound Crisis 7 1 Relations with France and Great Britain 72 The Neutrality Proclamation 74 The Treaty of Alliance and the Correspondence of the Justices 75 Admiralty Jurisdiction I: Clms v. The Sloop Betsy 82 The Jay Treaty I: Extrajudicial Service 87 The Jay Treaty IT: The Rutledge Fiasco 90 Oliver Ellsworth and Samuel Chase 95 The Jay Treaty 111: Advisory Opinions 97 The British Debt Cases 98 The Power to Tax 10 1 Admiralty Jurisdiction 11: La Vengeance 105 Lrt Vengeance: Majority Opinions and Chiefly Leadership I10 Admiralty Jurisdiction 111: Restitution of Prizes 112 The Jay Treaty I V: Sale of Prizes 115 Rushrod Washington 117 The Quasi-War I:The Ellsworth Mission 118 Alfred Moore 120 The Quasi-War 11: Bas o. Tina 120 The Quasi-War 111: Chief Justice Ellsworth Resigns 124 5 National Security and Federal Criminal Law Political Grand Jury Charges Common-Law Crimes Enforcing the Law of Nations Beyond the Law of Nations: The hI1Case The Problem of Seditious Libel Federal Common Law and the William Case The William Case and Interstitial Federal Common Law Common-Law Crimes and Common-Law Thinking Statutory Crimes: The Whiskey Rebellion Statutory Crimes: Justice Chase on Circuit 6 Nonjudicial Activities Ex-Officio Duties The Invalid Pensioners Act Advisory Opinions A Pragmatic Approach to Nonjudicial Activities CONTENTS

7 The Constitution and State Sovereignty Chisholm v. Georgia The Eleventh Amendment The Scope of the Eleventh Amendment Suits by Foreign States Suits in Admiralty Enforcement of Federal Rights 'The Federalists and the Eleventh Amendment 8 The Court and the Constitution judicial Review of Federal Actions The Sovereignty of the People Justice Chase's Doubts Interpreting the Constitution Congressional Power to Restrict Jurisdiction 9 An Assessment Table of Cases Index