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Third Circuit Court Reports (1789–1879)*

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Third Circuit Court Reports (1789–1879)* LAW LIBRARY JOURNAL Vol. 108:4 [2016-30] Third Circuit Court Reports (1789–1879)* Joel Fishman** The history of court reporting of the federal lower judiciary dates from the early days of the Republic. Mr. Fishman helps to document that history by reviewing the publication of the reports for the Third Circuit (circuit and district courts) covering the nominative reports from the late-eighteenth to the late-nineteenth century, before their republica- tion in Federal Cases by West Publishing Company. A bibliography is appended. Introduction ..........................................................623 Court Structure .....................................................627 Third Circuit Court Reports ..........................................628 Wallace Senior’s Reports ...........................................631 Peters’s Circuit Court Reports .......................................633 Washington’s Reports ..............................................635 Baldwin’s Reports .................................................637 Wallace, Jr.’s Reports ...............................................638 District Court Reports ...............................................641 Hopkinson’s Admiralty Reports .....................................641 Fisher’s Prize Cases ................................................642 Peters’s Admiralty Decisions ........................................643 Gilpin’s Reports ...................................................644 Crabbe’s Reports ..................................................645 Cadwalader’s Reports ..............................................647 Conclusion ..............................................................648 Appendix ..........................................................650 Introduction ¶1 The early history of court reporting for the United States Supreme Court has been covered in a number of recent volumes and articles.1 The lower federal courts, * © Joel Fishman, 2016. ** Associate Director for Lawyer Services, Retired, Duquesne University Center for Legal Infor- mation/Allegheny County Law Library, Pittsburgh, Pennsylvania. 1. MORRIS L. COHEN & SHARON HAMBY O’CONNOR, A GUIDE TO THE EARLY REPORTS OF THE SUPREME COURT OF THE UNITED STATES (1995); ERWIN C. SURRENCY, A HISTORY OF AMERICAN LAW PUB- LISHING 37–72 (1990); G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE 1815–35, at 385–426 (2010); Morris L. Cohen & Sharon Hamby, A Bibliography of the Early Reports of the Supreme Court of the United States, LEGAL REFERENCE SERVS. Q., Summer/Fall 1981, at 43; Gerald T. Dunne, Early Court Reporters, 1976 SUP. CT. HIST. SOC’Y Y.B. 61 (1976); Craig Joyce, The Rise of the Supreme Court Reporter: An Institutional Perspective on Marshall Court Ascendancy, 83 MICH. L. REV. 1291 (1985) [hereinafter Joyce, The Rise of the Supreme Court Reporter]; Craig Joyce, Wheaton vs. Peters: 623 624 LAW LIBRARY JOURNAL Vol. 108:4 [2016-30] however, have not received as much attention. This article aims to fill at least one such gap by discussing the nominative court reports of the Third Circuit from 1789 to 1879, the year that West Publishing Company began its Federal Reporter.2 ¶2 To start, some observations about the court reports of the lower federal judiciary of the nineteenth-century may be useful. First, there are 164 volumes of nominative reports covering the period from 1789 to 1887, including 127 circuit court volumes and only 37 district court reports. Most libraries today no longer possess these nominative reports, but contain the West version published as Federal Cases.3 This set of more than 18,000 cases is arranged in alphabetical order, so unless a researcher looks at a list of reports, it is difficult to determine the coverage of these reports. The introductory pages of volume 1 provide a preface with an explanation of how the book was compiled (pp. iii–vi), a chronological table of the circuits (pp. x–xi), the federal judges arranged by circuits and districts (pp. xiii– xxxviii), and titles of all sources obtained for the reports (pp. xxxix–xlvii). These reports were never considered complete, but were selected by the reporters.4 Table 1 shows the 127 volumes broken down by circuits and districts. Table 2 lists the breakdown for the district courts. ¶3 Second, the scope of coverage differs significantly among the circuits: under the Judiciary Act of April 1802, six circuits were created, followed by the seventh circuit in 1807, and the eighth and ninth circuits in 1837. In 1862, a reshuffling of The Untold Story of the Early Reporters, 1985 SUP. CT. HIST. SOC’Y Y.B. 35 (1985); Wilfred J. Ritz, The Francis Hopkinson Law Reports, 74 LAW LIBR. J. 298 (1981). 2. The outline of this article follows COHEN & O’CONNOR, supra note 1. The main sources used were the nominative court reports and Federal Cases. Other key sources include HARVEY BARTLE III, MORTALS WITH TREMENDOUS RESPONSIBILITIES: A HISTORY OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (2011); BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES, 1789 TO PRESENT, http://www.fjc.gov/history/home.nsf/page/judges.html (last visited Sept. 16, 2016) [here- inafter BIOGRAPHICAL DIRECTORY OF FEDERAL JUDGES]; BIOGRAPHICAL ENCYCLOPEDIA OF THE SUPREME COURT: THE LIVES AND LEGAL PHILOSOPHIES OF THE JUSTICES (Melvin I. Urofsky ed., 2006); WILLIAM R. CASTO, THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH (1995); DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800 (Maeva Marcus et al. eds., 1986–2007) (8 vols.); JAMES W. ELY, JR., THE CHIEF JUSTICESHIP OF MELVILLE W. FULLER 1888–1910 (1995); CHARLES FAIRMAN, RECONSTRUCTION AND REUNION, 1864–1888 (6 & 7 Oliver Wendell Holmes Devise History of the Supreme Court, 1971 & 1987); JULIUS GOEBEL, JR., ANTECEDENTS AND BEGINNINGS TO 1801 (1 Oliver Wendell Holmes Devise History of the Supreme Court, 1971); GEORGE L. HASKINS & HERBERT A. JOHNSON, FOUNDATIONS OF POWER: JOHN MARSHALL, 1801–1815 (2 Oliver Wendell Holmes Devise History of the Supreme Court, 1981); HERBERT A. JOHNSON, THE CHIEF JUSTICESHIP OF JOHN MARSHALL, 1801–1835 (1997); JUSTICES OF THE UNITED STATES SUPREME COURT: THEIR LIVES AND OPINIONS (Leon Friedman & Fred L. Israel eds., 4th ed. 2013) (4 vols.); EARL M. MALTZ, THE CHIEF JUSTICESHIP OF WARREN BURGER 1969–1986 (2000); WILLIAM F. PRAtt, THE SUPREME COURT UNDER EDWARD DOUGLASS WHITE 1910–1921 (1999); WILLIAM G. ROSS, THE CHIEF JUSTICESHIP OF CHARLES EVANS HUGHES 1930–1941 (2007); SUPREME COURT HANDBOOKS (ABC-CLIO, 2001–2008) (12 vols.); ERWIN SURRENCY, THE HISTORY OF THE FEDERAL COURTS (2d ed. 2002); CARL SWISHER, THE TANEY PERIOD 1836–1864 (5 Oliver Wendell Holmes Devise History of the Supreme Court, 1974); MELVIN I. UROFSKY, DIVISION AND DISCORD: THE SUPREME COURT UNDER STONE AND VINSON, 1941–1953 (1997); G. EDWARD WHITE, THE MARSHALL COURT AND CULTURAL CHANGE, 1815–35 (3 & 4 Oliver Wendell Holmes Devise History of the Supreme Court, 1988). 3. THE FEDERAL CASES COMPRISING CASES ARGUED AND DETERMINED IN THE CIRCUIT AND DISTRICT COURTS OF THE UNITED STATES FROM THE EARLIEST TIMES TO THE BEGINNING OF THE FEDERAL REPORTER, ARRANGED ALPHABETICALLY BY THE TITLES OF THE CASES, AND NUMBERED CONSECUTIVELY (St. Paul, West Publishing Co. 1894) (31 vols.). The nominative reports are digitized in LLMC-Digital, http://www .llmc-digital.org/ (subscription required for full access). 4. SURRENCY, supra note 1, at 35–39. Vol. 108:4 [2016-30] THIRD CIRCUIT COURT REPORTS (1789–1879) 625 Table 1 Circuit Court Reporters, 1789–1887 Circuit No. of Vols. 1 23 2 26 3 10 4 9 5 4 6/7 4 7 17 8 12 9 16 DC 6 TOTAL 127 Table 2 District Court Reporters, 1789–1881 District No. of Vols. California 3 Maine 5 Massachusetts 4 New York 15 Pennsylvania 9 South Carolina 1 TOTAL 37 circuits took place, and California, Nevada, and Oregon were added to a tenth cir- cuit, which was later abolished in 1866 and reverted back to the Ninth Circuit.5 ¶4 The First Circuit is covered from 1812 to 1875, less three years in midcentury. The Second Circuit for New York has only two volumes covering cases from 1810 to 1840, but twenty-four covering 1845 to 1887. Third Circuit cases cover 1801 to 1862, with a gap between 1834 and 1842, and a twenty-year gap after 1862. Although the Fourth Circuit reports cover 1793 to 1869, there are only nine vol- umes in total, including two volumes of Marshall’s Reports covering 1802 to 1835 and Taney’s Reports covering the twenty-five years from 1836 to 1861. The Fifth Circuit, revised in 1842 to consist of Alabama and Louisiana, later to be augmented by Florida, Georgia, Mississippi, and Texas, has coverage from only 1870 to 1883. The Sixth Circuit, originating in 1802, and Seventh Circuit in 1807, did not begin coverage until Bond’s Reports started in 1855 and Flippen’s Reports in 1859. The 5. Id. at 38. 626 LAW LIBRARY JOURNAL Vol. 108:4 [2016-30] Eighth Circuit began in 1839 and continued until 1883, with a seven-year gap between 1855 and 1863. The Ninth Circuit also began in 1855, but the bulk of the reports are Sawyer’s Reports covering from 1870 to 1884. Finally, the District of Columbia Circuit is covered from 1801 to 1841.6 ¶5 In addition, circuit court cases were published in other sources. First, Alexan- der James Dallas published cases from 1791 to 1806 in volumes 2, 3, and 4 of Dallas’s Reports, also known as volumes 2 to 4 of the United States Reports.7 Judge Francis Hopkinson’s admiralty decisions were published as part of volume 3 of his Miscel- laneous Essays and Bee’s Admiralty
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