Oliver Ellsworth, Third Chief Justice

JAMES M. BUCHANAN

Each year the editors of the Journal of Supreme Court History select for the cover an individual who has played an important part in the history of the Supreme Court. This year we have chosen Oliver Ellsworth, who served as the third Chief Justice of the United States from 1796 to 1800.

To most Americans, Ellsworth is associated more with his service in the Constitutional Convention than on the Supreme Court. The story of Ellsworth's role in creating the Great Compromise that permitted the delegates to go forward to complete the Constitution and, in turn, our government, is taught in high school social studies classes nationwide.

His service as Chief Justice, on the other hand, is less well known. The explanation for this in part lay in the short time he actively served on the Bench--a little over three and a half years. His judicial obscurity can also be attributed to his service on a Court which historians tend to describe as merely an overture to the John Marshall period.

For the past fifteen years a team of editors and researchers have worked to illuminate the formative years of the Supreme Court. Supported by grants from the National Historical Publications and Records Commission and private foundations, and organized under the auspices of the Supreme Court Historical Society, they have amassed a unique collection of over 20,000 documents pertaining to the early years of our highest federal court.

To date, their efforts have produced four books in three volumes. More are in the production process. When complete, The Documentary History of the Supreme Court of the United States. 1789-1800 will comprise the most complete record assembled of any period in the Court's two-hundred year history. Published documents will have been drawn from over 800 repositories in this country and in Europe; annotations and headnotes will guide the reader through Court minute books, cases, and other pertinent manuscripts.

The most recently published volume comprises the last installment of a two-volume series that focuses on the Justices as they rode circuit.[1] These two volumes, combined with the two-book record of the Court's minutes and official and private correspondence pertaining to appointments, give us a unique window from which we can view the professional lives of the early Justices.

The fourth volume, especially, is important to those interested in Ellsworth's judicial career. The Chief Justice's correspondence and writings, including grand jury charges he wrote while on circuit, compiled here for the first time, will add to what we already know from his biographers.[2] This record, combined with the documents contained in the two-part, volume one, helps our understanding of Ellsworth's life and work during his brief three-year tenure as Chief Justice.

The Court that Ellsworth inherited in 1796 had been in business a short five years and in the course of its half-decade of existence docketed a little over 25 cases. The Court had moved its home three times: from New York's Merchants Exchange to Philadelphia's Statehouse, and then its City Hall. Before the first decade was out it would move once again--this time to the new capitol on the Potomac. It would, however, have to wait until the 1930s before finding a permanent home.

Ellsworth, the nation's third Chief Justice in less than seven years, replaced John Rutledge of South Carolina, an interim appointment. An impolitic speech denouncing the controversial Jay Treaty had caused Senate Federalists--among them Ellsworth--to deny his appointment. Distraught, Rutledge attempted suicide a few weeks later. Rutledge had been nominated to replace John Jay, the Court's first Chief Justice, who had resigned after a little over six years' service. In another five years time, Ellsworth and all but one of the original six Justices appointed by Washington would be gone as well.

The high turnover of Court personnel--at least by late twentieth century standards--can be explained in part by the nature of political life in late 18th century America. The Senate and the House suffered as well. One facet of duty on the Court, however, is probably more the cause: the circuit ride.

Each spring and fall the Justices set out to hold a series of courts in three separate circuits: the Eastern, Middle, and Southern. These circuits stretched from Savannah, Georgia, to Windsor, Vermont. The distances travelled and the time spent on the road soon became an aggravation for some and an unbearable hardship for others. This duty, combined with the practice of the Supreme Court meeting during the two worst months of the year--February and August-- gave some of those approached with a Supreme Court appointment pause to consider.

If Ellsworth had any second thoughts about joining the Court, the documents do not reflect it. The judiciary, after all, was practically his creation. His service on the Senate committee that drafted the Judiciary Act of 1789, which gave life to Article III of the Constitution, is well known.[3] Associate Justices William Paterson and James Wilson were familiar faces, having served with him in the Constitutional Convention. (Ellsworth also worked with the just-departed John Rutlege, chair of the Convention's Committee of Detail.)

His nomination and confirmation met with widespread approval. New Hampshire Congressman Jeremiah Smith told a colleague that "no appointment in the U.S. has been more wise or judicious than this: He is a very able lawyer a very learned man a very great Politician & a very honest man in short he is every thing one would desire." The President described his nominee as having "the Stiffness of Connecticut; though his Air and Gait are not elegant; though He can not enter a Room nor retire from it with the Ease and Grace of a Courtier: yet his Understanding is as sound, his Information as good and his heart as Steady as any Man can boast.[4]

With Ellsworth joining the Bench, the Court which had begun its February 17% Term with only four members was again complete.[5]

Ahead lay the despised circuit duty whose scheme, ironically, was laid out by the Senate committee he chaired. His draw of the grueling and much-to-be-avoided 1,800 mile Southern Circuit consisting of Georgia, South Carolina, and North Carolina brought the reality of his legislative handiwork home in ways he heretofore did not expect. One can only wonder what went through the mind of Associate Justice James Iredell, the perennial rider on that circuit, when news that the author of the plan that had caused him so much agony got stuck with it the first time around.

That he would go the Southern Circuit seems to have been an unpleasant surprise for the new Chief Justice, expecting instead that he would take the Eastern Circuit, a route closer to friends and family. Breaking the news to his wife Abigail, Ellsworth assured her that despite his initial bad fortune "[I]t will not fall to my lot again to go into that Country in less than three years & probably never. Nor is it likely that I shall hereafter have occasion to be from home more than about two months at any onetime."[6]

To his young children, Ellsworth penned a post-script: "Daddy is going about a thousand miles further off, where the oranges grow--and he will begin to come home & come as fast as he can, and will bring some oranges."[7]

And so on March 24, 1796, with a "trusty servant" by his side and in good health, Ellsworth began his circuit by departing Philadelphia by ship and arriving in Charleston six days later.

On April 25, 1796, one month and many hundreds of miles after he left Philadelphia, Ellsworth opened his first circuit court in Savannah, Georgia. He used the occasion to charge the grand jury with a short disquisition of the importance of laws and government. Laws, he told the jurors, "are the national ligatures and vehicles of life" giving to the nation "harmony of interest, and unity of design."

As was so often the case, the metaphorical allusions contained in grand jury charges bore directly on political considerations of the day and this one was no different. The Jay Treaty, which Ellsworth as a Senator had worked diligently to ratify, was in trouble in the House. Republicans, not at all happy with the Treaty in the first place, were holding up funding of the Treaty until President Adams relinquished certain papers relating to Treaty negotiations. Ellsworth believed that the President's refusal to turn over the documents was indeed Constitutional. The House Republicans, Ellsworth told his jurors, were dangerously close to upsetting the fragile balance that produced the "good of all." Their actions blocking the treaty were nothing more than "impetuosity in legislation" brought by the predominance of "faction."[8]

Ellsworth was not alone in spreading the word. To the north, his colleague James Iredell was busily denouncing the Treaty blockade in charges to the grand juries of New Jersey and Pennsylvania. They cheerfully responded by returning replies supporting the Treaty.[9]

The Treaty took center stage at the circuit court for the district of South Carolina. On his way from Savannah to Columbia, Ellsworth had passed through Charleston where British Vice-Consul Benjamin Moodie presented him with a petition for injunctive relief to hear the case of the ship Amity. The Amity had been seized by the French privateer Leo and brought to Charleston for sale as prize. Moodie had brought the case to U.S. District Court judge Thomas Bee,[10] who ruled that the court did not have jurisdiction because of the provisions in Article 17 of the French/American Treaty of Amity and Commerce. Moodie, not to be deterred, sought Ellsworth's help and succeeded. Ruling that the sale violated Article 24 of the Jay Treaty, Ellsworth granted an injunction and sent the case to the Columbia circuit court which was to meet May 12.

Ellsworth rounded out his swing through the South at the Circuit Court for the District of North Carolina by declaring that that state's statute restricting the recovery rights of British creditors was unconstitutional under the Jay Treaty. A treaty, he reminded the grand jurors, is a national act and has supremacy over statutes--any other construction of this equation, he concluded, is "absurd."[11]

Ellsworth missed the entire February 1797 Term because of an onset of a debilitating medical condition.[12] He later described his ailment as a "gravel and . . . gout in my kidneys." Increasingly, it would affect his ability to carry out his work and eventually contribute to his decision to resign three years later.[13]

That spring Ellsworth had recovered enough to ride the Eastern circuit. Unlike the much-dreaded Southern, the Eastern circuit,[14] with its familiar roads and proximity to friends and family, undoubtedly was much welcomed by him.

That spring, with French attacks on American shipping contributing to what seemed to many to be an inexorable slide towards war, Ellsworth made sure that his charges to the grand juries of the Eastern circuit would leave little doubt in anyone's mind what the Federalist, and government's, position was. He reported to Secretary of the Treasury Oliver Wolcott, Jr. that his circuit riding allowed him to assess the public mood and it was supportive of the administration's policies. Through Wolcott he urged the President and Federalist-dominated Congress to take "any proper measures" to quell the crises at hand.[15] For his part, Ellsworth would ensure that the Court would close ranks with the Congress and the Executive to present a unified voice of the government.

Through a series of charges on his journey around the courts of the Eastern circuit, Ellsworth carried the Federalist message: pro-French partisans attempting to "separate the people from the government" will not succeed." Their work, he told the grand jurors, "estranges honest men, poisons the sources of public confidence, and palsies the hand of administration." The ultimate course, unless checked by vigilance and "prompt support and energy," is "sedition & rebellion."[16]

Ellsworth's charge contributed to the increasingly strident public policy debate. The editor of the the pro-Republican New York Argus lambasted Ellsworth for undertaking "to arraign, in terms the most opprobrious, the conduct of a great and powerful nation [France]." "It is a business," the editor scolded, "with which Judges and Jurymen, as such, ought not to concern themselves."[17]

Abigail Adams didn't like Ellsworth's charge either, but for other reasons. She told her husband that "I have just been reading chief Justice Ellsworth's Charge to the Grand jury at New York! Did the good gentleman never write before? Can it be genuine? The language is stiffer than his person, I find it difficult to pick out his meaning in many Sentences, I am Sorry it was ever published."[18]

Ellsworth returned from the East to preside over the Court's eight day long August Term. That fall, he rested while Cushing, Paterson, and Wilson rode the circuits.[19]

A flare-up of his ailment occurred in January 1798, forcing him to make a late start for the February meeting of the Court. His health began to be of growing concern to individuals outside the immediate Court circle. Frederick Wolcott reported to his brother that the Chief Justice "is considerably unwell, & I understand quite hypocondriac."[20]

By the time he reached New Haven, Ellsworth was reduced to travelling at a "gentle and cautious" pace--a feat of great difficulty given the usual rutted and ice-strewn roads. The Court opened without him on February 5 and Patterson wondered whether Ellsworth's condition would prevent his attendance at all. Iredell, despairing that with James Wilson on the run from his creditors and Ellsworth missing, the number of Justices present barely made a quorum. He predicted glumly that the Chief Justice would not show at all.[23]

Ellsworth, proceeding along at his "gentle and cautious" pace, apparently did make it to Philadelphia but not before the Court had broken up. Abigail Adams told William Cushing's wife, Hannah, shortly after the Court adjourned that "I have seen [the Chief Justice] since you left us, and engaged him to dine with us the next day. But he sent an apology as being too unwell. He is upon the whole better than when he came."[24]

His journey to Philadelphia, however, was not in vain. The Senate then in session, Ellsworth took the opportunity to work on reforming the circuit riding system. "I left pending before the Senate," he told Cushing, "a judiciary bill with a prospect of its making some progress this Session....It goes to relieve us from circuit riding, to form five new districts and two associate district Judges for the circuit Courts."[25] Despite his optimism the Senate tabled the bill and nothing more came of it.[26]

The August 1798 Term of the Court opened with Ellsworth back at the center seat. The Court met for three days before hastily breaking up after reports of a yellow fever outbreak in the town convinced attorneys arguing cases that reasonable prudence took precedent over jurisprudence.[27]

The previous month the Federalist dominated Congress passed the first of a series of acts that were designed to stifle First Amendment rights of pro-French and anti-administration critics. The Court fell in behind the President and Congress, delivering pointed charges to grand juries in all circuits calling for them to seek out and bring to the bar persons violating the statutes.

It is in this milieu that Ellsworth issued a charge to the grand jury that articulated his views on the existence and extent of a federal common law. The question, as one commentator later put it, "merited the most serious attention of the people of America" and had in fact been the subject of sporadic debate during the preceding decade.[28] For Ellsworth, the common law "as brought from the country of our ancestors, with here and there an accommodating exception, in nature of local customs, was the law of every part of the union at the formation of the national compact." The notion that the Founders intended a "discontinuance" of the common law "is not to be presumed; and is a supposition irreconcilable with those frequent references in the constitution, to the common law, as a living code."[29]

August Term 1799 again saw the Court decimated by illness. Only Ellsworth and three Associates attended. Cushing and Iredell missed the entire Term because of illness.[30] It was to be Ellsworth's last Term as a presiding Chief Justice. The previous February, Adams appointed him minister plenipotentiary to France, along with William Davie and William Vans Murray, in an attempt to head off war with that revolutionary country. For the remainder of the year, Ellsworth waited for the President's call that would send him on a mission he thought it his duty to attend. In November it came and he and his colleagues departed on their mission, leaving behind the business of the Court he had worked so hard to create.

Ellsworth never again sat on the Court.[31] On October 16, 1800, he resigned his commission telling President Adams, that the constant affliction of "the gravel, and the gout in my kidnies, the unfortunate fruit of sufferings at sea, and by a winters journey through Spain," combined to overcome any contemplation of returning to the Court. Broken in body, he sought the restorative climate of the south of France. He eventually returned to his native Connecticut and entered a life of retirement. Ellsworth died at his farm in Windsor on November 26, 1807.[32]

Endnotes