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Jay's Court 031:
By Willie Gaffer:
March 13, 2006:
According to our Constitution, Congress has the power and the duty to establish the Supreme Court. This is spelled out in Section 1 of article III as follows.
The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.
In addition, Section 2 of Article II of our Constitution gives the President the power and duty of selecting supreme court justices with the advice and consent of the Senate.
In our entire Constitution that is about all we have for the establishment of a Supreme Court. How it got done, was pretty much left in the hands of Congress. So, Congress did establish a Supreme Court and a federal judiciary in the Judiciary Act of 1789. This law created 13 district courts in key cities around the country, with one judge in each. There were also three circuit courts to cover the other areas of the country not within the jurisdiction of the 13 districts. Above these lessor courts Congress specified a Supreme Court which was to have one Chief Justice and five Associate Justices. At that time this Supreme Court was the only court of appeals.
President George Washington had the duty of staffing this first court and he did, selecting John Jay as the first Chief Justice. Jay was previously the author of the somewhat controversial Jay's Treaty of 1794 with Great Britain. At that time, there were many folks who favored an alliance with France against Great Britain. Jay's Treaty put the kibosh on that, but it went into effect in 1796 anyway, albeit over much protest.
The other five associate justices selected by Washington were John Blair of Virginia, William Cushing of Massachusetts, James Wilson of Pennsylvania, James Iredell of North Carolina, and John Rutledge of South Carolina. This was a real bunch of heavy hitters all of whom had a hand in establishing our Constitution. The thing to notice is how the very diplomatic Washington spread these appointments over the country. Pretty much everyone was represented. If only it were that way today.
This court was required by law to sit twice a year. This was not so easy, though. We must consider the conditions within the country when this first Supreme Court convened in 1790 in New York. Most roads could have been named mud or rut. Only three of the justices showed up, but that was no problem. There were plenty of spectators, but no cases on the docket. In fact, for three years, not much came before this high tribunal.
Not to worry. These guys had other duties which kept them busy. Congress, in its infinite wisdom, had decreed that they should ride circuit, so to speak. Twice a year they had to go around the country to preside over circuit courts. This, said Congress, was to make sure the were abreast of state laws and the opinions of local people. This was tough duty and when Jay considered resigning because of it, Congress let up a bit. They decided one trip a year would be enough.
This court also finally had some real Supreme Court business to attend to. Perhaps the most controversial case was that of Chisholm v. Georgia in 1798. In this case, the executors fo the estate of one Alexander Chisholm sued the state of Georgia to force Georgia to pay claims the estate had against Georgia. What was unique here is that the Chisholm executors were not in Georgia, but in South Carolina. The claim was really over some property that Georgia had seized from Tories during the revolution.
Well, Georgia refuses to show up for the case. They denied the courts authority to hear cases where sovereign states were held as defendants. That backfired when Jay's court found in favor of the plaintiff. They cited the Constitution, Article III section 2 to support their authority. To wit:
The judicial power shall extend to all cases, in law and equity,
arising under this Constitution, the laws of the United States,
and treaties made, or which shall be made, under their authority;--to
all cases affecting ambassadors, other public ministers and consuls;--to
all cases of admiralty and maritime jurisdiction;--to controversies
to which the United States shall be a party;--to controversies
between two or more states;-- between a state and citizens of
another state;--between citizens of different states;--between
citizens of the same state claiming lands under grants of different
states, and between a state, or the citizens thereof,
and foreign states, citizens or subjects.
This caused a big ruckus over the whole country. Needless to say, state governments became concerned, If it could be done to Georgia, it could be done to other states. All of this snorting finally lead to the adoption of the eleventh amendment to our Constitution in 1798. To wit:
The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.
That settled that, but the Jay court managed to establish two other legal precedents. In the war between Britain and France Washington solicited the advice of the Court. The Court refused claiming they we not allowed to assume the duties of the executive or to give advice under the Constitution. They can only deal with cases in law that come before the court. They have stuck to that position ever since, at least in public.
Internationally, the most important case for the Jay court was Glass v. Sloop Betsey, in 1794. Although Washington had declared America to be neutral in the War between Britain and France, French privateers were using American ports to bring captured ships and their cargo. One such ship was the Swedish owned Betsey which was brought to Baltimore. At that point the French consuls decided the fate of the ship and cargo. We can guess they ruled in favor of the privateers. However, a fellow who had owned a share of the cargo, one Alexander Glass filed suit in the district court in Maryland to recover his goods. The Court said it had no jurisdiction to hear the case. Bummer!
Not to worry. Th federal government appealed to the Supreme
Court which rendered a different decision. The district court
was told that foreign consuls would not decide American claims.
Thereinafter America got a bit more respect in the world. In 1995,
Jay, after a successful treaty negotiation with Great Britain,
was elected Governor of New York. He then resigned from the Supreme
Court. John Rutledge was nominated to replace him. He did serve
for one term, but was the first of many who failed to win Senate
approval. That kind of set a precedent didn't it? Rutledge was
replaced as Chief Justice by Oliver Ellsworth.
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