stationery. In consideration of these appropriations the reporter is required to furnish the Government with three hundred copies of each volume of decisions he may publish, but at the same time he is permitted to sell volumes of decisions to the public at a fixed price of two dollars per volume. The decisions of the court are handed to the reporter in manuscript and from these he makes a syllabus or synopsis of the case which always prefaces the text of the decision. The editorial work and the arrangements for printing are done by the reporter. The clerk is allowed deputies at the pleasure of the court. He may recover for malfeasance in office of any deputy for whose conduct he is responsible. The marshal is required to attend all the sessions of the court. He is provided with such assistants and messengers as the chief justice may approve, including a bailiff or court crier. The compensation of these assistants is fixed by the court. The marshal serves all the processes, takes charge of the Government property in use by the court and makes the official disbursements for the court. CHAPTER III SUPREME COURT (Continued) The First Congress under the Constitution met in the City of New York on the fourth of March, 1789, but it was not until the first of April that the House had a quorum and not until the seventh that the Senate had one. The latter date may, therefore be regarded as the birthday of the new Government. The House elected to begin its work with a discussion of import duties while the Senate at once turned its attention to the organization of the judiciary. The higher chamber appointed a committee, headed by Oliver Ellsworth of Connecticut as chairman, to draft and bring in a bill. The other members of this committee were Richard Henry Lee of Virginia, William Maclay of Pennsylvania, William Paterson of New Jersey, Caleb Strong of Massachusetts, Richard Bassett of Delaware, Paine Wingate of New Hampshire and William Few of Georgia. The original draft of the bill "to establish the Judicial Courts of the United States," reported on the twelfth of June by Richard Henry Lee, was mainly the work of Ellsworth who was assisted in a measure by Senator Paterson. This draft is in Ellsworth's handwriting. For more than two weeks there was a warm discussion over the bill to the exclusion, it would appear, of most other business. Each participant in the ensuing debates realized fully the gravity of the work before Congress in establishing a Judiciary, and the convictions of each were expressed accordingly with a vehemence and earnestness little calculated at first to arrive at an adjustment consistent with the provisions of the Constitution. In the Constitutional Convention it was expressly provided that the judicial power of the 1 Carson, History of the Supreme Court. This United States was to be vested in a Supreme Court and in inferior courts to be established by the Federal legislature. Jurisdiction extended to all cases arising under laws passed by Congress. This jurisdiction was not confined to the Supreme Court but could be assigned by Congress to the inferior courts which might eventually be established. In spite of these specific provisions, Lee did not hesitate to father a motion that the jurisdiction of the Federal courts should be restricted to admiralty and maritime cases. It will be observed that most of the members of this First Congress, in both Houses, were strong adherents of the Constitution and it may therefore be readily conceived with what warmth of opposition Lee's proposition met with at the outset. William Maclay, the Senator from Pennsylvania, a man of keen insight and an implicit believer in the wisdom of the Constitution, was the first to throw down the gauge of battle. He pointed out that if Lee's motion were carried it would exclude from every State all Federal jurisdiction save in admiralty and maritime cases. was so plainly in open contradiction to the Constitutional provisions extending the Federal jurisdiction to all cases in law and equity arising under the Constitution, the laws and the treaties of the United States, that the whole question could be narrowed down to the discussion of whether or not there should be amendments made to the Constitution. But the discussion was not whether the Constitution should be amended; but should have been strictly whether inferior Federal courts were to be established, how many and where, and a division of jurisdiction among them. Beyond such discussion Congress had no right to go in that instance. Lee apparently overlooked or wilfully ignored the fact that Congress was empowered to collect taxes, duties and imposts; to coin money; to punish for the debasement and counterfeiting of the currency, to supervise the enforcement of the revenue laws, to exact penalties for treason, in short to do through the medium of a Federal Judiciary what concerned the country as a whole rather than any single state. It will readily be seen what a comparatively insignificant part of a Federal jurisdiction maritime and admiralty cases constituted. Lee felt the force of his opponent's argument and took refuge in the statement that the judges of the state courts must swear to support the Constitution and accordingly to execute the laws of the United States. The absurdity of the statement is apparent. The Constitution is explicit in its grant of Federal jurisdiction, and if the state judges obeyed their oaths they would be obliged to decline to perform any judicial act under the Federal laws except as qualified by the powers of concurrent jurisdiction. Lee's position was utterly untenable; the motion was put and promptly defeated. Ellsworth's bill provided for both Circuit and District Courts. Three circuits and thirteen districts were eventually established. Before this was done, however, there was a discussion over the number of judges to be appointed to sit in the Supreme Court. Some thought six were too many and others too few. It was argued with reason that if the Supreme Court judges had to sit in the Circuit Courts of the three circuits the number suggested would be only too few, but it was pointed out with equal cogency that the heaviest litigation was in the state courts, and that at first the Federal Court would have little work to do. Maclay of Pennsylvania thought six a reasonable number and suggested that additional judges could be appointed in case the increase in judicial labors should eventually require them. After considerable discussion six judges were agreed upon. The engrossed bill was read in the Senate on the seventeenth of July, and, upon the question "Shall the bill pass?" the yeas and nays being required by one-fifth of the senators present, the vote stood yeas, 14; nays, 6. Of the seven members of the original committee, four, Messrs. Ellsworth, Few, Paterson and Strong voted for the bill, and Lee, Maclay and Wingate against it. In the House of Representatives the bill received its first and second readings on the twentieth of July and a week later was committed to a committee of the whole House. Other business postponed action until the twenty-fourth of August when it was taken up for consideration in committee of the whole. The bill received intermittent attention until the sixteenth of September when the amendments of the committee of the whole were further amended and agreed to, and it was ordered for a third reading on the seventeenth of September when it was passed. The Senate took action on the amended bill as it came from the House and the latter chamber agreed to the higher chamber's changes.1 It was then sent to the president for executive action. The completed bill was not in its fundamental features dissimilar to the original draft of Ellsworth, who may therefore be justly regarded as the "father of the Federal Judiciary," a rare distinction which the lapse of time is likely to enhance. The Connecticut statesman's subsequent career saw him chief justice of the Supreme Court which he had done so much in making a working reality. He served in that capacity from 1796 to 1801, succeeding Chief Justice John Rutledge. Ellsworth died at Windsor, Connecticut on the twenty-sixth of November, 1807, in the sixty-third year of his age. President Washington signed the Judiciary Act on the twenty-fourth of September and almost immediately sent to the Senate the following nominations: Chief Justice, John Jay of New York; Associate Justices, John Rutledge of South Carolina, William Cushing of Massachusetts, James Wilson of Pennsylvania, Robert Hanson Harrison of Maryland and John Blair of Virginia. Two days later all the appointments were confirmed. With the wisdom. characteristic of Washington the duty of appointing able men to the Federal bench was taken very seriously. He foresaw clearly the future importance of initiating the Federal Judiciary with a good foundation for the traditions of deep respect which the Supreme Court in particular has since commanded. The appointments made by him. were of the highest quality and each of his successors who have been called upon to perform that duty has main 1 History of Congress, Lea & Blanchard, Philadelphia, 1843. |