Wheaton v. Peters - The Untold Story Of The Early Reporters

by Craig Joyce*


PAGE 1 of 4


Introduction

One cold day in January of 1817, Joseph Story, himself recently appointed a Justice of the Supreme Court of the United States, took pen in hand to congratulate the Court's newest employee, Reporter of Decisions Henry Wheaton, on the publication of the first volume of Wheaton's Reports. Story wrote:

I received yesterday your obliging favour accompanied with a copy of your reports. I have read the whole volume through hastily, but con amore . . . . In my judgment there is no more fair or honorable road to permanent fame. [Y]our reports are the very best in manner of any that have ever been published in our Country, & I shall be surprised, if the whole profession do not pay you this voluntary homage.[1]

Happily for Justice Story, his own place in the history of American law rests on footing substantially more solid than the foregoing prophecy to Reporter Wheaton. For little of what the young Justice so confidently predicted, and the fledgling Reporter so fondly hoped, has come to pass. Indeed, contemporary observers largely ignored the vital contribution of Henry Wheaton and the other early Reporters[2] to the Court's institutional life and ultimate renown; and today that contribution is almost totally forgotten.

Wheaton and his fellow Reporters deserve better. In this paper, I hope to accord their memories at least a small measure of that "permanent fame" that has, to date, so conspicuously eluded them. My vehicle is the Court's 1834 decision in Wheaton v. Peters,[3] a contest between Henry Wheaton and his successor in office, Richard Peters, Jr., over the copyrightability of the Court's own opinions. Wheaton is an old case, I grant; but it is also a great case. In addition to highlighting the role of the early Reporters in the everyday life of the Court, it provides an illuminating perspective on the ascendance of that tribunal to its present preeminent position in American law. In this sesquicentennial year of the Marshall Court, I assure you that few activities will prove nearly as enlightening--or, I hope, as enjoyable!--as a study of the fascinating but heretofore untold story that is Wheaton v. Peters.


I. Antecedents and Beginnings

Only forty-six years separate the beginning of the Chief Justiceship under John Jay in 1789 from the death of John Marshall in 1835. The transformation of the Supreme Court's role and power within the American constitutional system during that period has long been a leading theme in histories of the Marshall Era.[4] But the reasons underlying the progress of the Court from its status as an "almost faceless" onlooker during the nation's first decade[5] to a position of "judicial hegemony" in the federal system by the close of Marshall's tenure[6] have yet to be fully explored. Typically, commentators have focused on the doctrinal aspects of that development, while paying scant attention to its institutional dimension.

Two examples will suffice. Representative of an earlier day is H. L. Carson's Centennial History of the Court, published in 1891. Carson summarized the effects of Marshall's insistent nationalism in terms suggestive of inescapable destiny: "Beneath the strong and steady rays cast by his mind the mists were rising, and the bold outlines of our national system were gradually revealed."[7] Similarly, among present-day historians, George L. Haskins, in his recent study of the separation of law from politics in Marshall Court jurisprudence, has written:

Under Marshall, the Court became the ultimate seat of federal judicial power and, more important, a fertile breeding ground for developing the idea of the supremacy of the rule of law, as distinct from elusive and unpredictable accommodations to the executive and the legislature. Inevitably, these developments and the ideas they nurtured permeated the lower federal courts, and helped to spread nascent ideas of a new American nationalism.[8]

Inevitable? No. Modern lawyers, accustomed to air courier delivery of judicial opinions announced in Washington, D.C., the preceding day, are understandably blind to the difficulties encountered by the bar, the public at large and even the lower courts, in obtaining copies of the Supreme Court's decisions in an earlier age. In truth, however, the reputation of the Court in those years, and even knowledge of its utterances depended in large part upon dissemination of its opinions by an unofficial system of private enterprise reporting whose hallmarks were delay, omission and inaccuracy, and unmanageable expense. Obscured by such deficiencies in the reporting of Marshall Court decisions, it is little wonder that the "bold outlines of our national system" rose but slowly from the "mists" during the first decades of the nineteenth century.

In retrospect, it seems merely commonsensical to expect that the need for an official Reporter of the decisions of the Supreme Court, authorized to disseminate those decisions to the bench, bar and general populace of the new nation, should have been recognized contemporaneously with the formation of the Court. It was not. The members of the first Congress in 1789, while laying out an elaborate blueprint for the structure of the new federal judiciary,[9] were silent on the subject of a Reporter, as were the Justices themselves in the first and second Terms of the Court held at New York City in 1790.[10] Nor does there appear to have been any discussion of appointing a Reporter when the government moved to Philadelphia, where the Court held its third Term in February of 1791.[11]

The explanation for this apparent oversight, however, is reasonably plain. As a practical matter, the Court had no need of a Reporter, official or otherwise, during its first three Terms, for its docket was empty.[12] Not until the Court's August 1791 Term was its first case, West v. Barnes, called for argument (and dismissed on procedural grounds without reaching the merits).[13]

It was at this juncture that the need for a Reporter of the Court's decisions became clear, if not to the Court, at least to an enterprising young member of the Philadelphia bar named Alexander James Dallas. Born in Jamaica and educated in England, Dallas had migrated to the United States in 1783 and been admitted to the practice of law in Pennsylvania in 1785 at the age of twenty-six."[14] Dallas' career, both in private practice and public service, was to prove long and distinguished,[15] is culminating in his appointment as Madison's Secretary of the Treasury in 1814.[16]

In the years immediately prior to the arrival of the federal government in Philadelphia, however, Dallas had yet to achieve notable success in his adopted nation or chosen profession. His biographer characterizes the period from 1783 to 1790 as "seven lean years of law practice, political reporting, magazine editing, hack writing, and clerical work,"[17] and his practice as consisting of minor cases in the city and county courts and routine office work on wills and conveyances."[18] Not that Dallas' efforts had been entirely in vain. On the contrary, having occupied himself industriously with editing and writing for political, literary and legal journals[19] in Pennsylvania's capital city, Dallas had achieved an unusual degree of visibility that would lead, in December of 1790, to his appointment as Secretary of the Commonwealth.[20]

In addition, albeit quite inadvertently, Dallas had positioned himself perfectly to become the first Reporter of Philadelphia's newest court, the lately itinerant and largely unknown Supreme Court of the United States. Between 1788 and 1790, Dallas published at least eleven accounts of cases decided in the Pennsylvania and Delaware courts. The reception accorded these reports by the bench and bar was so favorable that Dallas determined to undertake the systematic collection and publication of Pennsylvania court decisions in book form.[21] His first volume, published in June of 1790, contained accounts of Pennsylvania decisions from as early as 1754, based on notes preserved by judges and lawyers,[22] and was appropriately titled Reports of Cases Ruled and Adjudged in the Courts of Pennsylvania Before and Since the Revolution.

Perhaps the most remarkable aspect of volume 1 of Dallas' Reports, other than its primacy as the first volume of the United States Reports notwithstanding the absence therefrom of a single decision of the new nation's highest court, is its virtual novelty as an art form in American law. But for one important volume of Connecticut cases by Ephraim Kirby,[23] which preceded it by barely a year, Dallas' initial volume would stand indisputably as the first comprehensive publication of American law reports, federal, state or colonial.[24]

The American colonies had hardly been a backwater of civilization during the eighteenth century. Why then the dearth of law reports, given the long tradition of reporting in English practice?[25] One possible explanation is the limited size of the bar during the period, which presumably rendered the publication of reports of decisions in the various colonies (and later, states) a commercially dubious venture.[26] Certainly, commercial difficulties were later to prove debilitating to Dallas and his immediate successors in reporting the decisions of the Supreme Court.[27]

In addition, there was little need to study the judgments of American courts so long as the colonies remained yoked to the mother country.[28] With independence, however, American lawyers embarked upon the daunting task of tailoring English law to American circumstances, when possible, and creating a distinctly American body of law, when necessary.[29] Suddenly, neither English reports nor the notebooks of decisions maintained by many lawyers for use by themselves and their friends[30] would suffice for the practice of law in a new nation. Although a majority of the new American states considered common law decisions announced before the break with England persuasive in their courts, there seemed a pressing need for American decisions as precedent.[31] No published reports of such cases appeared in the decade following independence, however, and American courts remained almost entirely dependent on English legal literature for their common law precedents.[32] The law that did develop in American courts was, in the words of Ephraim Kirby, "soon forgot, or misunderstood, or erroneously reported from memory."[33]

Clearly, American soil had become fertile ground for the flowering of "home-grown" law reports.[34] It remained to be determined, however, who would undertake the task and how it would be financed. The contrasting approaches taken in Kirby's Connecticut Reports and Dallas' Pennsylvania Reports are instructive of the problems faced by all of the early reporters, state and federal, and shed particular light on the development of the United States Reports under Dallas and his three immediate successors.

From the start, Kirby had significant advantages over Dallas. As early as 1784, the Connecticut General Assembly had recognized the need "to lay the foundation of a more perfect and permanent system of common law in this state," and had accordingly required the judges of the Supreme Court of Errors and the Superior Court "to give in writing the reasons of their decisions upon points of law, and lodge them with their respective clerks, with a view, as the statute expressly declares, that the cases might be fully reported."[35] Plainly, Kirby's Reports, covering judgments in the named courts from May of 1785 through May of 1788, benefited directly from the General Assembly 's foresight and carried into effect its specified purpose.

Dallas was not as fortunate. Not until 1806, just as he was concluding his Reports,[36] did the Pennsylvania General Assembly require judges to reduce their opinions to writing, and then only at the request of the parties or their attorneys.[37] Dallas, therefore, was able to give only the barest description of the earliest decisions reported in his first volume. For a number of the more recent cases, he had access to the opinions of his patron, Chief Justice Thomas McKean of the Pennsylvania Supreme Court, but generally to no others.[38] Even this limited assistance was unavailable in the instance of the Supreme Court of the United States whose opinions first appeared in volume 2 of Dallas' Reports: while Dallas reported its decisions, the Court apparently failed, even in its most important cases, to reduce its opinions to writing.[39] Certainly, no statute or rule of court required the Justices to do so.[40]
Kirby, like Dallas, undertook his task without benefit of an official appointment as Reporter.[41] The two men's conceptions of their informal responsibilities to the bench and bar, however, seem to have been substantially similar, at least as reflected in their finished products.

In preparation for his work, Kirby had collected and examined numerous volumes of English reports and abridgments, along the way discovering that his intended models shared little in the way of purpose, style or arrangement.[42] Kirby's own reports seem to assume a readership interested primarily in ready access to clear, concise statements of the main points of law settled in each decision and content with bare summaries of the pleadings and arguments of counsel.[43] Thus, in addition to providing an alphabetical index of his 201 cases by plaintiffs' names, Kirby prepared a twenty-three page legal index abstracting by subject the points of law in the collected cases and, referring the reader, with respect to each point, to the precise page on which the court's own words might be found.

The models for Dallas' first volume, if any, are unknown, but in execution the volume closely resembles Kirby's Reports. Like his Connecticut contemporary, Dallas placed primary emphasis on identifying and making accessible to practitioners the main points of law decided in the cases. Like Kirby's Reports, volume 1 of Dallas' Reports includes a lengthy subject matter index, alerting the reader to the principal issues addressed in the reports and referring him to the pertinent decision for further details. Dallas preceded each case, as had Kirby, with a brief abstract (frequently, one sentence) distilling its significance. He also prepared, in addition to an index of cases reported, an index of cases cited in the opinions of the courts. This innovation, not found in Kirby's Reports, seems particularly well calculated to meet the needs of a post-Revolutionary bar hungry for precedent; and the relative brevity of the index reveals what a pioneering effort it was.

Besides the differing availability of written opinions as the basis for their reports and the similarity of purpose that they brought to them, there is one final point of comparison between Dallas and Kirby that is worthy of note: the contrasting means by which the two men financed their ventures. Neither, of course, could rely on a salary as Reporter to defray expenses, as neither held an official appointment carrying an assured stipend. In Kirby's case, however, the lack of such an appointment did not forestall legislative assistance in completing his undertaking. Initially, he had hoped to cover all costs of publication through an ambitious subscription drive, which failed in part due to uncertainties concerning the effect of the proposed Federal Constitution upon state legal systems.[44] By May of 1788, Kirby had raised but half of the necessary funds. He thereupon petitioned the Connecticut General Assembly for the remainder, which it appropriated for payment upon delivery of 350 copies of the finished reports for distribution to town clerks throughout the state.[45] Both the appropriation and the proviso may reasonably be seen as further steps toward the accomplishment of the purposes that underlay the General Assembly's 1784 determination to require written judicial opinions in the first place.

In Pennsylvania, meanwhile, Dallas labored without Kirby's advantages. True, Dallas' first volume appeared with the express imprimatur of the judges of the state's highest court, commending its author's "learning, integrity and abilities" and "approv[ing] and recommend[ing] the printing and publishing [of] his book."[46] But practical support, in the form of an appropriation by the legislature to offset current expenses and perhaps establish a market in the state for future sales, was never forthcoming.[47] Whereas the assistance of the General Assembly apparently enabled Kirby to break even on his Connecticut Reports, Dallas' experience in Pennsylvania was one of profound frustration.[48]

Thus, in many respects, Kirby proved more successful than Dallas at the untried business of law reporting in a new nation. Both Dallas' first volume and Kirby's Reports provided otherwise unavailable reports of the decided cases, accompanied by useful aids for the diligent practitioner. Kirby, however, had the advantage of being able to reproduce all of the opinions handed down by the subject courts during the years covered by his volume; and his reports, widely circulated through the beneficence of the General Assembly, broadened his reputation without depleting his pocketbook. Yet, apparently content to let his fame rest on his first and only volume, Kirby essayed no sequel.[49]
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Dallas pressed on, however, perhaps spurred by the prospect of increased sales prompted by the inclusion in his second, third and fourth volumes of the decisions of the federal courts newly located in Philadelphia since the publication of volume 1.[50] But there were numerous grounds for complaint concerning the execution of Dallas' later volumes, particularly by readers interested primarily in the decisions of the Supreme Court of the United States. Those problems (which, in fairness to Dallas, were not to end with his reportership) included delay, expense, omission and inaccuracy.

With respect to promptness in the publication of his reports, Dallas' pattern proved to be extremely uneven. Volume 1 of Dallas' Reports, containing cases decided as late as the December 1789 term of the Philadelphia County Court of Common Pleas, appeared in June of 1790, less than six months later.[51] But between Chisholm v. Georgia,[52] the last decision of the Supreme Court of the United States reported in Dallas' second volume, and the publication of the volume itself in 1798, there was a gap of five years. Volume 3 of Dallas' Reports appeared in late 1799, less than a year following the February 1799 Term with which it concluded.[53] Volume 4, however, contained no Supreme Court cases decided after the Court's August 1800 Term (the last held in Philadelphia) and did not reach the public until 1807, a lapse of almost seven years.

The lion's share of the blame for these delays in Dallas' publication of federal court decisions is clearly attributable to the free enterprise character of his venture. Lacking an official appointment and salary from the federal or state governments, and lacking also the comfort of a subsidy, like Kirby's in Connecticut, to assure the viability of his reports, it would be strange if Dallas had not been heavily influenced by commercial considerations. Having commenced publication of his first volume with Pennsylvania attorneys as his primary audience, Dallas may well have thought it prudent to design succeeding volumes in such a way as to maintain that readership as a core for sales. Indeed, the bulk of Dallas' volume 2 was devoted to state rather than federal cases;[54] and its 1798 publication date may well have been dictated by a desire to include as many decisions as possible of the Supreme Court of Pennsylvania, which volume 2 reported through that court's December 1797 term. Volume 3 of Dallas' Reports, published only a year after Volume Two, appears to have been necessitated by a huge backlog of federal Supreme Court decisions.[55] The Court, but not Dallas,[56] moved to the District of Columbia after its August 1800 Term. The move left Dallas with but forty-six pages of cases to report. Dallas' fourth volume, therefore, did not appear until 1807, when he had a sufficient number of cases collected from the state and federal circuit courts, up to and including the December 1806 term of the Supreme Court of Pennsylvania, to justify publication.[57]

Whatever the cause, Dallas' tardiness was a major hindrance to those hungry for information concerning the jurisprudence of the highest federal tribunal, particularly its appellate practice. In general, newspaper accounts of decisions were of little assistance in disseminating such information;[58] and, in consequence, counsel who were unable to attend the sessions of the Supreme Court in Philadelphia found it necessary to inquire of friends at the seat of government whether the Court had decided various issues of interest to them.[59]

Delay, however, was not the only obstacle to the success of Dallas' venture. Expense, too' undoubtedly played a part. Publishing costs in America were generally higher than in England, and American attorneys had grown accustomed to purchasing the less expensive imported volumes. In Connecticut, Kirby's Reports had been considered excessively dear at three dollars per copy.[60] Dallas' four volumes, reporting courts as disparate as the Supreme Court of the United States and the Mayor's Court of Philadelphia[61] and costing substantially more,[62] appear to have encountered resistance at least as stiff from potential purchasers.

Yet delay and excessive expense may not have been the most grave deficiencies of Dallas' Reports, at least from a present-day perspective. To these must be added the twin charges that Dallas reported the first decade of the Court's existence both incompletely and inaccurately.

Completeness, or lack thereof, is a matter difficult to decide with certainty. Charles Warren's classic history of the Court claimed that Dallas had omitted at least ten percent of the cases decided during the sixteen active Terms that he reported,[63] including one "of much interest" to a later Court.[64] Chief Justice Hughes, concurring with one of Dallas' successors, thought that Dallas "probably published all the opinions that were filed."[65] Writing more recently, Julius Goebel, Jr., concluded in 1971 that "somewhat less than half of the dispositions made by the Supreme Court in the first decade of its existence are reported,"[66] although the figure "probably exceeds 70 percent" once the inquiry is limited to cases adjudicated on the merits or on jurisdictional grounds.[67] The dispute, in short, concerns not whether but to what extent Dallas' three volumes of Supreme Court Reports are incomplete.[68]

As to accuracy, the verdict on Dallas 'Reports is less certain. When, as Goebel notes, an opinion of the Court or of one of the Justices, "as reported by Dallas, is no model of clarity,"[69] who is to be blamed: the Justices or the Reporter? If Dallas, and not the Justices themselves, must be held responsible for garbling the opinions that he transmitted to lower court judges and practitioners, the fault would be great indeed in an age when newspaper reports, the primary alternative means of communicating the developing jurisprudence of the Court, "usually [imparted] only the bare outlines of the case and the result."[70]

Any careful attempt to ascertain the accuracy of Dallas' accounts of the Justices' opinions, however, raises an even more arresting question: are the opinions in fact the handiwork of the Justices--or of Dallas himself? Not a single formal manuscript opinion is known to have survived from the Court's first decade;[71] and few, if any, may ever have existed for Dallas to draw upon.[72] Nor may it be confidently assumed that in all instances Dallas was present in court to take down the very words spoken by the Justices in their seriatim opinions, or that he was able afterwards to consult any notes they may have kept of the opinions they announced. In one instance, Dallas wrote to Justice Cushing for assistance with a series of cases, only to find that Cushing had not retained his notes in certain of the cases, or had not delivered his opinion from notes in other cases, or had not delivered an opinion at all.[73]

Instead, it seems entirely possible that many of Dallas' reports of individual cases were constructed primarily from the notes of other counsel who had attended the proceedings. For example, Ware v. Hylton[74] contains an acknowledgment that, having been absent during argument of the case, Dallas had resorted to the notes "of Mr. W Tilghman, to whose kindness. . . I have been frequently indebted for similar communications, in the course of the compilation of these Reports."[75] A comparison of the arguments as reported by Dallas with the recently rediscovered original of Tilghman 's notes, however, reveals that Dallas did more than merely retranscribe his source. Among other liberties taken with Tilghman 's notes, Dallas omitted whole paragraphs, while embroidering on, strengthening and shifting emphases in what he retained.[76] The arguments in Ware v. Hylton, then, appear to be a combination of counsel's remarks and Dallas' improvements upon those remarks.

Whether the same may be said of the actual opinions in Ware is problematical. Having been otherwise occupied during the argument of the case, did Dallas nonetheless find time to attend the rendering of opinions? His report does not say. Justice Chase's rather detailed opinion, as recounted by Dallas, follows Tilghman 's notes. Justice Cushing's does not.[77] Dallas attempted to obtain Cushing 's notes in Ware, but he may or may not have succeeded.[78] Does Cushing 's opinion as it appears in volume 3 of Dallas' Reports depart from Tilghman 's notes because of information that Dallas subsequently obtained from the Justice himself, or because Dallas actually heard the opinion delivered in court but recorded it differently from Tilghman, or because Dallas improved upon whatever notes he obtained, just as he had with Tilghman 's notes of the arguments of counsel? On any analysis, the circumstances "cast doubt on the accuracy of the Cushing opinion as rendered by Dallas."[79]

Delay, expense, omission and inaccuracy: these were among the hallmarks of Dallas' work. His Reports, however, had scant precedent in American law, and the task he set for himself in chronicling the rise of the nascent federal judiciary had absolutely none. The accomplishment, no doubt, fell short of the aspiration, and perhaps volumes 2, 3 and 4 of Dallas' Reports have found their place in the official United States Reports principally "for want of anything better."[80] In light of the difficulties that confronted him, however, a more accurate (if still restrained) summation may be that "Mr. Dallas was a very competent person [who] eventually left things better than he found them."[81]

Whatever the judgment of posterity, Dallas became "the subject of . . . much abuse" at the hands of his contemporaries.[82] When at last the federal government, including the Supreme Court, moved to Washington City in 1800, he seems almost to have rejoiced to have the yoke of reporting the Court's decisions lifted from his shoulders. Writing to his friend, Jonathan Dayton, in 1802, Dallas lamented:

I have found such miserable encouragement for my Reports, that I have determined to call them all in, and devote them to the rats in the State-House. . . . [L]et me beg the favor of you to direct a servant to nail up, and forward, those that remain in your care. The manuscript of the 4t. Volume is compleat--it brings the decisions of the Supreme Court of the US. down to the last Term; butt will commit it to the flames instead of the press.[83]

Indeed, the Justices themselves doubted that Dallas had sufficient relish for reporting left to publish the cases decided during the Court's last three Terms in Philadelphia;[84] and Dallas' successor, William Cranch, wrote to him in 1803 offering to print the opinions from those Terms in the first volume of his own Reports.[85] Ultimately, the decisions in question, carrying the work of the Court through its August 1800 Term, appeared in volume 4 of Dallas' Reports (preceded, however, by the first three volumes of the eager Cranch).

William Cranch, like Dallas before him, assumed his responsibilities as Reporter more by chance than premeditation.[86] Born in Massachusetts in 1769 and graduated from Harvard at age nineteen, Cranch had been a classmate there of John Quincy Adams. His mother, moreover, was Abigail Adams' sister. Having moved to the new capital city as legal agent for a real estate speculation syndicate, Cranch was caught up and ruined in its spectacular collapse,[87] only to be rescued by his well-placed uncle, President John Adams. Adams appointed the young lawyer a Commissioner of Public Buildings in the Federal City in 1800, and an assistant judge of the newly created District of Columbia Circuit Court in 1801. The Act of March 8, 1802, intended by the Jeffersonians to sweep out Adams' "midnight judges," made no mention of Cranch's court.[88] Cranch remained on the bench for an unprecedented fifty-four years, becoming chief judge upon appointment by President Jefferson in 1805.

In the meantime, Cranch had begun to report the decisions of the Supreme Court. Precisely how he came to the post is not known. The older histories occasionally refer to Cranch as the first "regularly appointed" Reporter of the Court's decisions.[89] But no such entry appears in the minutes of the Court, nor had Congress or the Court provided for such an appointment by statute or rule.[90] Without doubt, the reports published by Cranch, like the volumes of his predecessor, remained at all times a private venture.[91] Thus, it seems most likely that Cranch, like Dallas, appointed himself to report the decisions of the Court, perhaps encouraged by the closeness, both physical and personal, that conditions in the Federal City fostered within its small legal community.[92]

Cranch also seems to have been motivated to take on the burdens of reporting, at least in part, by a keen appreciation of the importance of the task.[93] Witness the preface to his first volume:

Much of that uncertainly of the law, which is so frequently, and perhaps so justly, the subject of complaint in this country, may be attributed to the want of American reports.
. . . .
Uniformity. . . can not be expected where the judicial authority is shared among such a vast number of independent tribunals, unless the decisions of the various courts are made known to each other. Even in the same court, analogy of judgment can not be maintained if its adjudications are suffered to be forgotten. It is therefore much to be regretted that so few of the gentlemen of the bar have been willing to undertake the task of reporting.

. . . .

One of the effects, expected from the establishment of a national judiciary, was the uniformity of judicial decision; an attempt, therefore, so report the cases decided by the Supreme Court of the United States, can not need an apology . . .
If the fate of the present volume should not prove him totally inadequate to the task he has undertaken, it is [the Reporter's intention to report the cases of succeeding terms.[94]

Despite high hopes and laudable intentions, however, Cranch and his readers found Supreme Court reporting an exercise in disappointment.

Certainly, Cranch made every attempt to please the profession by improving on the standard of his predecessor's volumes. While retaining the case tables, indices and rudimentary notes introduced by Dallas, the new Reporter also pledged to (and, it appears, did) provide "faithful summar[ies] of the arguments of counsel."[95] The result, as described by William Pinkney of Baltimore, was merely "unprofitable and expensive prolixity."[96] Cranch also attempted, in appendices to his first and fourth volumes to supplement the opinions themselves with useful additional matter. But again, the result seemed not to warrant the effort, and even these perfunctory attempts at scholarship were not repeated in the remainder of Cranch's nine volumes.[97]

The greater length of Cranch's Reports also worked against their success as a commercial venture by contributing to their cost. Eventually, the combined expense of a full set of Cranch's volumes approached fifty dollars.[98] Further adding to Cranch's woes was the rise of the Court's admiralty docket. Maritime cases, including those concerning marine insurance, had comprised nearly half of the Court's appellate workload even in Dallas' time;[99] as compared with that earlier period, the total number of such cases decided by the Court during Cranch's reportership almost tripled.[100]

Unfortunately, "only a few of the most eminent admiralty lawyers in the great cities ha[d] any use for" such decisions, or, in consequence, for Cranch's accounts of them.[101]

It remains a matter of conjecture whether those accounts attained the level of completeness and accuracy seemingly required by the lofty purposes stated in Cranch's preface to volume 1. On the matter of omissions, J. C. Bancroft Davis observed in his hundredth anniversary retrospective on reporting at the Court that "there is no means of knowing whether, during the time covered by the nine volumes of Cranch, . . . the court delivered any opinion in writing which the Reporter failed to report."[102] As to inaccuracies, the Holmes Devise volume devoted to the period refers only to the "vagaries of William Cranch's reporting";[103] but Justice Story complained on at least one occasion that several of Cranch's volumes were "particularly & painfully erroneous."[104]

Clearly, however, the most serious of Cranch's deficiencies was his inability to render his reports in a timely fashion. Cranch's delays became more pronounced with practically every volume. The first volume of Cranch's Reports, including cases decided as early as the August 1801 Term, did not appear until June of 1804. As to the August and December 1801 Terms, Cranch could reasonably plead that he had not yet assumed responsibility for the Reports at that point and had required time to assemble the notes of others.[105] In 1802, the Court had not sat at all.[106] No such ready explanation, however, justified Cranch's subsequent delays or excused the inconvenience imposed on his readers. For example, volume 7 of Cranch's Reports (which included the Court's 1812 and 1813 sittings) appeared only after a five-year delay, at a time when litigation inspired by Jefferson's Embargo Acts and the War of 1812 had begun to flood the Court's docket.[107]

Delay of this magnitude in the reporting of the decisions of the nation's highest court necessarily diminished, in many instances almost to the vanishing point, the immediate impact that the Court's actions might otherwise have been expected to have on the bar and the public at large. For the newspapers of the period, the only other significant means of disseminating information concerning the jurisprudence of the Court, routinely reported even its most major doctrinal pronouncements in almost summary fashion.

One illustration will suffice. Certainly few, if any, of the Marshall Court's decisions; at least in today's estimation, exceed Marbury v. Madison[108] in importance. Yet contemporary newspaper accounts of Marshall's opinion, on which the country was forced to rely pending the publication of Cranch's Reports, left much to be desired. Although perhaps too strong, Beveridge 's comment on the notoriety of the decision in its time indicates the existence and gravity of the problem. "[T]he first of Marshall's great Constitutional opinions," he said of Marbury, "received scant notice at the time of its delivery. The newspapers had little to say about it. Even the bench and bar of the country, at least in sections remote from Washington, appear not to have heard of it. . . ."[109] In fact, several newspapers reprinted the opinion in full, although the Daily National Intelligencer, one of the more prominent sources of information concerning the Court's activities, published only a brief resume.[110]] Significantly, the vast majority of attention in the press was devoted not to Marshall's assertion of the Court's right to hold an act of Congress unconstitutional, but to his alleged trespass on the field of presidential power; and many of the stories printed, in Warren's estimation, "contained a very erroneous account of the point decided."[111]

The unavailability of accurate and full newspaper accounts of the decisions of the Supreme Court made the prompt publication of Cranch's Reports essential.[112] His chronic inability to accomplish that objective became a source of considerable dismay to leading members of the profession, including the Justices themselves. Pinkney of Baltimore complained that counsel "suffered a good deal by the tardiness of [Cranch's] publications ," noting that the "promptitude" of his successor, Henry Wheaton, in issuing his own reports "greatly enhances their value to us all."[113] Indeed, so dilatory were Cranch's efforts that Chief Justice Marshall, on receiving prepublication copies of volumes 7 and 8 of Cranch's Reports two years after Cranch had been supplanted by Wheaton, sent thanks to the latter, apparently on the assumption that Wheaton had undertaken to complete Cranch's reports for him.[114]

In short, it had become clear by 1815, if not before, that Cranch's volumes in many respects merely continued the glaring deficiencies first introduced into the reports of the Supreme Court by Dallas. Further, the nature of that tribunal's work had been dramatically altered, due in part to political developments beyond its control,[115] but also to the Marshall Court's bold willingness to expand its role in the structure of national government.[116] Finally, and perhaps most importantly, the Court had recently acquired, in the person of Joseph Story,[117] a new member keenly aware of the advantages of prompt, accurate reporting and deeply interested in the promotion of a national jurisprudence. William Cranch may well have found the delights of his reportership exhausted by the time the Court rose from its February 1815 sitting;[118] but, whether he had or not, the moment had clearly come for a change.


II. Wheaton's Reportership

The stories of Cranch's successors, Henry Wheaton and Richard Peters, Jr., are inextricably intertwined with the foresight and ambition of Joseph Story. In the course of two decades, from Wheaton's appointment in 1816 to the rendering of the bitterly contested decision in Wheaton v. Peters in 1834, these three men redefined the responsibilities and significance of the Reporter in the life of the Supreme Court. Wheaton and Peters were to be the instruments of change; Story, their constant supporter and sometime collaborator.

Just when Wheaton and Story first met is uncertain. Their correspondence indicates at least a nascent professional relationship as early as 1812, when Wheaton sought a letter of introduction from Story to William Pinkney of Baltimore, the uncrowned king of the American bar.[119] Story, although slow in complying, ultimately advised Wheaton that he would "be happy at all times to serve you in any way in my power."[120] Already, the two had assumed the roles of mentor and protege--roles that were shortly to play so important a part in the advancement of both Wheaton's career and Story's ambitions for the Supreme Court and American law.

Story and Wheaton had much in common. To begin with, both were young lawyers and native New Englanders. Story had been born in Marblehead, Massachusetts in 1779 and admitted to the bar of that state in 1801.[121] Wheaton, Story's junior by six years, had been born in Providence in 1785 and admitted to the Rhode Island bar in 1805.[122] Both had the benefit of superior educations, Story at Harvard and Wheaton at Brown (then Rhode Island College).[123] In public life, both had complemented their professional endeavors with active, if somewhat irregular, participation in Republican politics.[124]

Story's friendship with Wheaton, however, arose from common interests and inclinations rooted in deeper soil than mere politics, or even the practice of law. In part, Story seems to have been attracted to Wheaton by a shared fascination with legal scholarship. Story's contributions to the literature of American law, besides being literally epic in proportion, span over four decades, almost the entire length of their author's professional life. Although the best known of Story's works (other than his judicial opinions) date from his incumbency in the Dane Professorship at Harvard Law School,[125] at least four antedate even his appointment to the Supreme Court: an explication of the procedural mysteries of the common law entitled A Selection of Pleadings in Civil Action in 1805, and new editions of Chitty 's A Practical Treatise on Bills of Exchange, Abbott's A Treatise of the Law Relative to Merchant Ships and Lawe 's A Practical Treatise on Pleading in Assumpsit in 1809, 1810 and 1811 respectively.[126]

Wheaton's scholarly fame, like Story's rests in substantial part on works dating from the middle and later years of his career, particularly Elements of International Law (1836).[127] Also like Story, however, Wheaton displayed his literary and scholarly talents at an early date. Circumstances required it. He had moved from Providence to New York City in 1812 in search of greater professional opportunities, only to find that the bar there would not waive its requirement of a three-year novitiate prior to admission.[128] In the interim, Wheaton needed alternative employment. The solution, made possible by his home state political activities, was the editorship of New York's new Tammany paper, the National Advocate. The paper soon became a vehicle for semi-official expositions of Madison administration policy, including the war against England.[129]These interests, in turn, led Wheaton to prepare a series of articles on national policy concerning the war[130] and to condemn the New England sectionalism epitomized by the Hartford Convention.[131] Fortunately for Wheaton, both his nationalism and his interest in admiralty law coincided exactly with the predilections of Joseph Story. Admiralty was Story's obsession. It was complex. It was arcane. And, in the wake of the War of 1812, it was the focus of a great portion of the litigation before the Supreme Court. Indeed, in a seafaring nation, Story saw admiralty as the short road to transferring ever greater power to the federal judiciary. In the words of one observer: "if a bucket of water were brought in [Story's] court with a corn cob floating in it, he would at once extend the admiralty jurisdiction of the United States over it."[132]

Historically, admiralty jurisdiction had evolved into two separate bodies of law. Under the first heading, administered by the "prize" courts, fell all maritime matters touching the conduct of war, particularly the capture of enemy vessels.[133] Complementing these powers, at least in medieval England, had been the jurisdiction of the admiralty tribunals, sitting as what were classically denominated "instance" courts, over a broad range of peacetime affairs, including maritime commercial contracts.[134]

Story's whole life had been spent in coastal Massachusetts, and maritime cases had formed a large part of his law practice prior to his appointment to the bench.[135] From 1812 on, his circuit court had been flooded with prize law cases, which formed the basis for by far the greatest part of his early opinions.[136] Indeed, so important did such matters become during the War of 1812 that even the Supreme Court, whose national jurisdiction extended well beyond Story's seafaring First Circuit, found admiralty cases amounting to at least a third of its docket.[137]

Moreover, Story recognized the potentially immense importance of admiralty law to young America once the war was concluded. In England, a series of historical accidents had shriveled the admiralty court's instance (or peacetime) jurisdiction to such vestigial matters as collisions, salvage, seamen's wages and bottomry bonds; whereas, on the Continent, admiralty courts in Story's time retained expansive jurisdiction over all cases connected with the sea.[138] Adoption of the Continental model in the United States would have delivered perhaps half the commercial litigation of the country to the exclusive jurisdiction of the federal courts.[139]

In his efforts to add breadth and detail to the admiralty jurisdiction of the federal courts, Story soon found in Henry Wheaton a ready and able assistant. Wheaton's National Advocate had been the first paper in the country[140] to publish Story's May term 1813 circuit court opinion in The Julia, outlawing the common practice among New England shippers of purchasing safe-conduct passes through British Royal Navy.[141] Also, by early 1813, if not before, Wheaton had begun arguing prize cases before Story on circuit in Rhode Island.[142]

Wheaton seems to have made a strongly favorable impression, which Story expressed in an immediate and concrete fashion. By the summer of 1813, Wheaton could write to his father-in-law: "I have commenced an undertaking, to which I have been stimulated by Judge Story, who has flattered me that I might gain both money and reputation by it. It is to write a digest of the law of prizes." The undertaking would cost him "a great deal of labour," he reported, but "[t]here is not in our language any such work of considerable merit of the elementary kind, and it is very much wanted."[143]

Wheaton's Digest of the Law of Maritime Captures and Prizes appeared in July of 1815.[144] Its title proved too modest. The work not only summarized, but also gave a full analysis of, the prize decisions of the tribunals of various countries, especially the United States and England, and included a general exposition of the law of nations.[145] Clearly, Story had found a soul mate for his scholarly interests.

Fortuitously, the appearance of Wheaton's Prize Digest in 1815 came just as what Story termed the Court's "disrelish" with William Cranch's work as Reporter reached the breaking point.[146] Cranch had failed to place in print a single case decided by the Court since its February 1810 Term.[147] In the meantime, the Court had rendered a total of 131 decisions,[148] all of which remained unavailable, in their complete and final form, to the bench and bar.[149] Even Attorney General Richard Rush, who as the Government's chief representative appeared before the Court more often than any other member of the bar, could not obtain access to its recent decisions. "They are all in the hands of Judge Cranch himself," he lamented to Wheaton in April of 1815, adding that Cranch "ought to be supplanted as some penalty for his inexcusable delays."[150] By whom might Cranch be "supplanted"? There is evidence, although ambiguous, that Wheaton had already volunteered himself to Rush.[151] Certainly, Wheaton would have been an obvious choice, if for no other reason than that more than half of the decisions handed down in the Terms as yet unreported by Cranch had concerned the emerging law of admiralty.[152]

Naming a new Reporter, however, remained the prerogative of the Court itself. Fortunately for Wheaton, he had there, in the person of Justice Story, an ally even more powerful and ardent than Rush. Story not only valued Wheaton's talents and interests as a scholar; he had also a keen appreciation of the importance of court reporters in disseminating the law and enhancing the reputations of the judges who expounded it. Story's own professional apprenticeship had been hindered by the scarcity of American reports "to enable the student to apply the learning of the Common Law to his own country, or to distinguish what was in force here, from what was not."[153] Within two years of his admission to the bar in 1801, however, Massachusetts had become the first of the American states to provide statutorily for an official reporter to its highest court.[154] Story's own elevation to the bench in 1811 brought the immediate appointment of a reporter--the first ever in the First Circuit--to chronicle his judicial progress there.[155] Pending publication of his opinions on circuit, an anxious Story advised Wheaton, "I have now no compendious method of carrying the decisions with me" from sitting to sitting.[156] Nor could lower court judges readily obtain access to Story's collected wisdom.[157] Indeed, as Story himself foresaw clearly, posterity's estimation of his "character as a Judge" would depend critically on his opinions being "fully and accurately" preserved for study and application.[158] How much worse that the decisions of the nation's highest court should languish, unknown to the public or the profession, in the hands of the tardy Cranch![159]

By the opening of the Supreme Court's February 1816 Term, both Story and Rush had cause for rejoicing. Cranch had indeed been supplanted--not surprisingly--by Wheaton. The selection of the Court's third Reporter seems to have occurred, like those of his predecessors, by informal agreement among the Justices themselves.[160] As an inducement to procure his appointment, Wheaton had submitted a plan proposing "regular annual publication of the decisions, with good type, and to be neatly printed."[161] The Justices, for their part, agreed to furnish to him any written opinions they might prepare, or notes they might make in connection with their oral opinions.[162]

Wheaton immediately set about discharging his new responsibilities. Inevitably, the demands of the reportership, and conditions in the Federal City itself, drew him closer to the tight circle of men with whom he worked most closely--the Justices of the Court. Washington at the close of the War of 1812 remained a dusty and dismal place, "a picture of sprawling aimlessness, confusion, inconvenience, and utter discomfort."[163] The Justices themselves, enduring a self-imposed reclusive existence almost wholly divorced from the politics and society of the city, all lived and took their meals together in the same boarding house on Capitol Hill.[164] There Wheaton joined them, quickly becoming Story's roommate or "chum."[165]

Wheaton's intimacy with Story went well beyond rooming arrangements. On occasion, the two assumed a relationship strikingly like that of present-day law clerks to their Justices. Neither man, for example, found anything unusual in Wheaton's provision of authorities for Story to review in the preparation of his opinions.[166] Further in a spirit of collaboration, they seem to have assembled a common library for use while in Washington.[167]

Wheaton's relationships with the other Justices, while not nearly as familiar as with Story,[168] seem in most instances to have been professionally cordial. To cite but one example, in 1817 Wheaton found himself compelled to apply to Bushrod Washington for a fresh copy of an opinion for which Wheaton had apparently misplaced his own notes.[169] Washington replied warmly that he had been pleased to receive Wheaton's request, as it provided him the opportunity to remedy an error in the opinion as delivered.[170] In preparing the amended opinion for the press, he enjoined Wheaton "to correct with freedom all errors in language."[171] To be sure, not every aspect of Wheaton's new surroundings was equally supportive.[172] But, in general, conditions seemed highly propitious for Wheaton to justify the Court in supplanting his predecessor with a new Reporter determined to succeed in those respects in which both Dallas and Cranch had so conspicuously failed: delay, omission and inaccuracy, and expense.

In attacking the problem of chronic delay in the appearance of the Reports, Wheaton moved decisively and victoriously, although not without a few disheartening moments along the way The February 1816 Term, Wheaton's first as Reporter, concluded on March 21, 1816, when the Court handed down eleven of its forty-three decisions.[173] By early May, he had completed his work in preparing the opinions, abstracts and arguments of counsel for the press.[174]

A series of misadventures, only partly the fault of the new Reporter, then combined to delay the publication of the Reports for another seven months. First, Wheaton himself decided to prepare an extensive set of scholarly annotations, both in the margins of the cases and in a separate appendix, to "illustrate the decisions by analogous authorities" and "subjoin a more ample view" of the Court's developing jurisprudence (particularly in the field of prize law).[175]

Second, he allowed himself to become sidetracked by a number of activities peripheral to the actual publication of the Reports. One was an effort by Story, largely unsuccessful, to counteract negative reaction to Martin v. Hunter's Lessee, arising from newspaper reports based on Justice Johnson's concurrence, by encouraging dissemination of his own majority opinion.[176] Wheaton, agreeing that Johnson's opinion "placed the decision of the Court on a quicksand--yours on a rock,"[177] found himself occupied on and off for the next three months trying to oversee the placement of Story's opinion in satisfactory forums.[178] Also, Wheaton further diminished the time available to him for editing the Reports by an energetic, and for the moment unsuccessful, attempt to cajole Congress into voting him a formal title and salary as Reporter.[179]

The most serious impediment to early publication of the Reports, however, arose from a source utterly beyond Wheaton's control. To his great dismay, initially not one law book publisher could be found willing to print the proposed volume on terms he felt he could accept.[180] As Peter S. Du Ponceau, Wheaton's agent in Philadelphia, succinctly advised him: "Book selling is at present a very bad business, & Booksellers are all out of spirits, & unwilling to undertake any original work."[181] This turn of events ought not to have surprised Wheaton, given his knowledge of the grave difficulties that even Story himself had encountered in trying to arrange the publication of law reports.[182] But the situation did force Wheaton to become painfully practical. He instructed Du Ponceau to offer the right to print the work to Mathew Carey, a bookseller not generally engaged in the law trade, for a mere $1500 in notes. Carey promptly and emphatically refused the offer.[183] Ultimately, Wheaton had no choice but to let Carey purchase the copyright itself, thereby depriving him of the ownership of volume 1 of his own Reports.[184] He received just $1200, payable in notes due up to fifteen months after the date of purchase.[185]

From June 17, when Wheaton reluctantly signed the contract,[186] until December 20, when Carey entered his copyright for the work in the United States District Court Clerk's Office in Philadelphia,[187] six months more elapsed. As summer turned to fall, an embarrassed Wheaton assured Story that the fault lay solely with the printers, who had "sadly procrastinated."[188] As autumn turned to winter, he pleaded with increasing discomfort that "the delay . . . ha[d] been occasioned solely by Mr. Carey's failure to furnish paper from time to time as it was wanted by the printers."[189]

However valid his excuses, Wheaton did not escape the pointed inquiries of those painfully accustomed to the snail-like pace of his predecessors. Attorney General Rush became increasingly impatient, passing from polite entreaty to insistence that the Reports issue "before the next [T]erm" to morose musings that Wheaton's first volume would likely be upstaged by the appearance of Cranch's final three.[190] Justice Washington, communicating to the Court's new Reporter through his mentor, Story, noted evenly as the months wore on: "I hear nothing of Wheaton's Reports."[191] Story himself was more direct, pointing out the importance of timely publication of Wheaton's first volume "to justify the Court in their choice of a successor to Mr. Cranch."[192]

Fortunately for Wheaton, the publication of the Reports for the 1816 Term prior to the commencement of the 1817 Term answered all doubts regarding the wisdom of the Court in appointing a new Reporter. Dallas, at his worst, had allowed the decisions of the nation's highest tribunal to go unreported for, eight years.[193] Cranch, at one point, had permitted a lacuna of six years.[194] Now, for the first time in the history of the Reports,[195] the bench and the bar of the Supreme Court had the luxury of preparing for the coming campaign in Washington with copies of the preceding Term's decisions already in hand. Wheaton had accomplished his task, including the preparation of an unprecedented 487 pages of abstracts, arguments and opinions and forty-six pages of notes, in less than nine months. Nor, in retrospect, would this rapidity be seen as an unusual occurrence. Indeed, never again would Wheaton require so long to place a volume in print: typically, later volumes appeared in the summer following the Term reported, and in no instance later than October.[196] Clearly, Wheaton had met and mastered the problem of delay.

Timeliness alone, however, while greatly to be desired, did not itself ensure an increase in the completeness and accuracy of the Reports. Indeed, it might have been purchased at their expense. Or perhaps such failings in the volumes of Dallas and Cranch merely demonstrated the limitations inherent in a system dedicated to the preservation of opinions and arguments often extemporaneously delivered from only the most rudimentary notes.

In fact, whether absolute completeness in the Reports ought to be sought at all posed, as Wheaton clearly saw, a series of thorny problems. There was, for one thing, the notorious vanity of the Supreme Court's distinguished bar, which then included Pinkney, Rush, Samuel Dexter, William Wirt, Thomas Addis Emmett, Robert Goodloe Harper, David B. Ogden, Henry Clay and Daniel Webster, to name but a few. To what extent, if any, should their orations before the Court be reproduced in the Reports? In the preface to his first volume, Wheaton addressed the issue candidly: "Of the arguments of counsel nothing more has been attempted," he wrote, "than to give a faithful outline; to do justice to the learning and eloquence of the bar would not be possible, within any reasonable limits. . . ."[197] Not surprisingly, the bar objected. Responding privately to Webster's public animadversions on this aspect of his reporting, Wheaton observed sardonically to Story: "I bow with submission to [his] criticism as to the inutility of attempting to incorporate into a brief microcosmic sketch of a law argument any of those brilliant displays of eloquence which we frequently hear at the bar."[198] The new Reporter's practice in the matter, however, did not change.

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