| |
Admission to the Supreme Court
Bar, 1790-1800: A Case Study of Institutional Change
James R. Perry and James M. Buchanan*
* * * * * *
*The authors gratefully acknowledge Nancy Matthews,
Sandra Van Burkleo, and Sarah Blank for contributing to
the biographical research used in this article.
* * * * * *
The history of admission to the Supreme Court bar during
the Court's first decade is significant for what it reveals
about the functioning of the Court during its formative
years. The Court was a unique institution which did not
spring fully formed from the Constitution and the Judiciary
Act of 1789. Consequently the justices had to settle many
matters concerning procedure. Their decisions in these
matters were ad hoc and not immutable. In particular,
the fluctuation in procedures for bar admission illustrates
the Court's flexibility in establishing rules and practices.
Furthermore, the history of admission to the bar suggests
the major role the Chief Justice took in shaping the Court's
practice.
Even before the Supreme Court first convened and admitted
lawyers to its bar in February, 1790, Chief Justice John
Jay turned his attention to organizational and procedural
matters of pressing concern. In an exchange of letters
with Associate Justice William Cushing, Jay's priorities
and preferences became clear.[1] First, the Chief Justice
believed that process in the Court should run in the name
of the President of the United States. Furthermore, he
argued that, in accordance with section 1 of "An
Act to regulate Processes in the Courts of the United
States" (enacted September 29, 1789),[2] the federal
circuit courts would have to wait for the Supreme Court
to provide for their seals. Turning to the Court's need
for a clerk, Jay acknowledged that Cushing's candidate,
John Tucker, came highly recommended;[3] but he noted
that "I have made it a Rule to keep myself free from
Engagements, and at Liberty to vote as after mutual Consultation
among the Judges shall appear most adviseable." Jay
did think that the clerk "should reside at the seat
of Government." Finally, he concluded:
"There are several matters which will demand early
attention; and it would doubtless be useful to have some
informal Meetings before Court, in order to consider and
mature such Measures as will then become indispensable
among these will be the Stile of writs— admission
of Attorneys and Counsellors—some rules of Practice
&c--&c."
Jay's concerns became the agenda followed by the Court
during its first term. On February 3, 1790, the Court appointed
John Tucker as clerk and agreed with Jay that Tucker "reside,
and keep his Office at the Seat of the National Government."
That same day, the Court provided for its own seal as well
as seals for the circuit courts. On February 5, the Court
ordered that all process should run in the name of the President
of the United States. It also passed rules for the admission
of attorneys and counsellors:
"Ordered, that (untill further Orders) it shall be
requisite to the admission of Attorneys or Counsellors
to practice in this Court; that they shall have been such
for three Years past in the Supreme Courts of the State
to which they respectively belong, and that their private
and professional Character shall appear to be fair.
Ordered, that Counsellors shall not practice as Attornies;
nor Attornies as Counsellors in this Court.”[4]
The Court also specified an oath for admission to
the bar.
It is evident that the Chief Justice had shaped not only
the agenda of the Court, but also the decisions related
to these procedural matters. His influence even extended
to the wording of some of the Court's actions. Drafts of
the Court's rules for admission to the bar and issuance
of process survive in the records of the Supreme Court;
they are in the handwriting of John Jay.[5]
The history of admission to the Court's bar during the 1790s
suggests the continuing importance of the Chief Justice
in shaping procedure, but the bar is important in its own
right. The bar's importance can be gauged by the attention
given it in newspaper coverage during the 1790s. It was
not uncommon for newspapers to print lists of the attorneys
and counsellors admitted. Illustrative of the respect given
to the bar is this passage published in New York City's
Gazette of the United States on March 6, 1790, a month after
the Court's first term: "Every friend to America must
be highly gratified, when he peruses the long list of eminent
and worthy characters, who have come forward as Practitioners
at the Federal Bar—where the most important rights
of Man must, in time, be discussed, and determined upon,
as well those of nations, as of individuals.
During the Court's first term, twenty-seven lawyers were
admitted to the bar. These admissions took place between
February 5, 1790—the date when the Court established
rules governing the bar—to February 10—when
the Court adjourned.[6] According to the just-announced
rules of the Court, applicants for the bar had to have practiced
for three years or more in the supreme courts of their respective
states of residence and had to have maintained a "fair
. . . private and professional Character." For three
of the twenty-seven admitted in February, 1790, character
references or certificates survive, the latter to vouch
for their having practiced as lawyers in the highest courts
of their states of residence. [7] How did the other twenty-four
establish their professional credentials to satisfy the
Court's requirements? The answer may lie in the personal
and professional reputations of these "eminent and
worthy characters."
Seeking admission were nine representatives and one senator,
all in New York to attend the second session of the First
Congress. Among the congressmen was Egbert Benson (1746-1833)
from New York.[8] Benson had graduated from King's College
(later Columbia) in 1765,[9] after which he read law in
the office of John Morin Scott for a number of years. In
1769 he gained admission to the bar of the New York Supreme
Court of Judicature. Thereupon, he established a respected
legal practice in his native Dutchess County He was active
in the revolutionary cause, serving in New York's Provincial
Congress (1776) and on its Council of Safety (1777-1778).
In 1777 he became the first attorney general of New York,
a position he held for over a decade. Concurrently he was
a member of the state assembly (1777-1781, 1788) and a member
of the Confederation Congress (1781-1784). He attended the
Annapolis Convention in 1786 and, two years later, enthusiastically
worked for adoption of the Constitution as a member of New
York's ratifying convention. According to one biographer,
Benson's "reputation for legal learning was second
only to that of Hamilton." Four years after Benson
was admitted to the Supreme Court bar, he became a justice
of the New York Supreme Court of Judicature.[10]
Eminence such as that displayed in the career of Egbert
Benson typified those lawyers admitted to the bar who were
serving in Congress; others who were admitted, while not
members of Congress, also had attained eminence and held
(or had held) positions requiring legal expertise. Of the
latter group, some had worked as clerks of county or state
tribunals, others as judges of county state, and federal
courts. One had been the attorney general of his state,
one was a federal district attorney, and two had been involved
in the codification of statutes. Representative of this
group is Richard Varick (1753-1831). Born in Hackensack,
New Jersey, he had moved to New York City, where he was
admitted to the bar on October22, 1774. After the revolution,
he served as recorder of New York City from 1784 to 1788.
He was speaker of the New York Assembly in 1787 and 1788.
In the latter year he became attorney general for the state,
a post he held for only one year before becoming mayor of
New York City In the three years prior to his admission
to the bar of the Supreme Court, he also had collaborated
with Samuel Jones on a project to produce an official codification
of the statutes of New York.[11]
The admission of Arthur Lee (1740-1792) presents a special
case of eminence recognized by the Court. Perhaps no man
who became a member of the Court's bar during its first
term enjoyed as large a reputation as that of this Virginian.
In his fiftieth year at the time of his admission, Arthur
Lee had a long list of achievements. He had been educated
at Eton and the University of Edinburgh, where he received
his M.D. in 1764. He returned to his native Virginia and
began to practice medicine in Williamsburg. Lee did not
stay with medicine for very long, however; within a few
years, political events precipitated by the Stamp Act crisis
steered him away from his first chosen profession. Returning
to London once again, he began to study law at Lincoln's
Inn and the Middle Temple. While in London Lee acted .as
an agent for Massachusetts and, in 1775, began to serve
in the same capacity for the Continental Congress. That
same year, he was admitted to the Court of King's Bench.
In 1776, Lee joined Silas Deane and Benjamin Franklin at
Paris in an effort to negotiate a Franco-American alliance.
He then journeyed to Madrid and Berlin as special envoy
for the American Congress before his recall by that body
in 1779. Returning to America, Lee won election to the Virginia
House of Delegates in 1781 and then to the Confederation
Congress, where he served until 1784. A year later, Congress
chose him to serve on the treasury board.[12] As the Gazette
of the United States noted on March 6, 1790, shortly after
Lee's admission to the Supreme Court bar:
This gentleman, (whose talents and law knowledge so eminently
distinguished him in the Courts of Westminster, prior to
the commencement of the late glorious revolution, in the
whole course of which his abilities and patriotism were
so successfully exerted for the benefit of his country,)
will, we doubt not, be another shining ornament to the Federal
Bar—and will, we hope meet with those returns from
his fellow citizens, in the line of his profession, which
his long-tried integrity, and high character justly entitle
him to: Those considerations, we hear, have induced the
Hon. Judges of the Supreme Court to dispense with a special
rule of the Court in his favor, which precluded the admission
of any person as a counsellor, who had not practiced as
such in some of the Superior Courts of the States for three
years antecedent to the adoption of the New Constitution.
The Gazette
inaccurately stated the rule of the Court, which in fact
required three years of practice in a state supreme court
preceding admission to the United States Supreme Court
bar, rather than "antecedent to the adoption of the
New Constitution." But this news report does illustrate
how widespread was Lee's reputation, to the extent that
the Court was willing to bend its rules, so recently laid
down.
After the admission of the most eminent practitioners
as counsellors, the Court admitted several lawyers as
attorneys. In the rules passed February 5, 1790, the Court
had distinguished between counsellors and attorneys. The
former could plead cases before the Court, whereas the
latter could only prepare documents. All of those lawyers
admitted as attorneys during the February term, 1790,
practiced in New York City If the nation's capital, and
therefore the Court was to remain in that city,[13] some
lawyers would be needed to act in the capacity of attorneys.
Foreseeing this need, the Court may have admitted these
individuals, although they were less prominent than those
admitted as counsellors.
Given the eminence of those admitted as counsellors and
the intended role of those admitted as attorneys, it becomes
clearer how applicants established their credentials in
February, 1790. As noted earlier, only three applicants
are known to have presented written documentation evidencing
qualification for the bar. Inasmuch as the Court had just
passed its rules on admission, the justices bowed to expediency
and decided to accept unwritten proof of credentials.
Articles published in the New York City Daily Advertiser
two years later (in conjunction with John Jay's candidacy
to be governor of New York) indicate that the Court allowed
oral testimony to establish the credentials of applicants
to the bar. The March 1, 1792, issue of this newspaper
carried an article by "Aristogiton," who noted
that the lawyers of New York were indebted to John Jay
"for the decency and delicacy with which they were
treated when they applied to be admitted at the federal
bar, and for the pains he took to establish their reputation
by oaths and certificates." (Emphasis in original.)
Four days after this article appeared in the Daily Advertiser,
an article signed "A Free Elector" in the same
paper noted that it had been understood that, in order
to establish the length of practice before the state supreme
courts and the character of the applicant, "it was
requested that the gentlemen of the bar should produce
certificates as to both these facts." Although these
two articles were written with political motives (one
for, and one against Jay), they reveal nonetheless the
process of admission followed during the February 1790
term; that is, although the Court requested written certificates,
it did not require them.
Evidence as to qualification for the bar either was given
orally in Court or was a matter of common knowledge, mitigating
any need for written certificates and character references.
Given the relatively small number of lawyers in a country
of only four million (including 700,000 slaves) and given
the even smaller number who would have practiced before
the highest courts of their respective states, there was
probably no applicant to the Court's bar not personally
or professionally acquainted with at least one of the
justices—themselves leaders of their state bars.
The justices who met in February 1790, hailed from Massachusetts
(William Cushing), New York (John Jay), Pennsylvania (James
Wilson), and Virginia (John Blair).[14] The lawyers admitted
came from Massachusetts (3), New York (15), New Jersey
(5), Pennsylvania (1), Virginia (1), South Carolina (1),
and Georgia (1). The lawyers from New Jersey probably
would have been known either by Jay or Wilson; William
Smith of South Carolina was one of three who supplied
the Court with a certificate; and James Jackson of Georgia
was a congressman who had been appointed to the conference
committee on the Process Act of 1789.[15]
Although verbal testimony or common knowledge seems to
have been allowed to establish qualification for the Court's
bar during the first term, such was not the case at the
next meeting of the Court—all three applicants for
the bar in August, 1790, brought to the Court certificates
or character references or both. The justices may have
decided after their experience during the first term in
New York that they preferred not to be personally responsible
for establishing the qualifications of applicants to the
Court's bar.
This supposition gains support in view of what happened
during The Court's first term in Philadelphia in February,
1791, when a large number of lawyers appeared for admission
to the bar without any supporting documentation. Edward
Burd, prothonotary of the Supreme Court of Pennsylvania,
immediately supplied a certificate for twenty-two applicants
that stated that they had practiced in Pennsylvania's
highest court. But the justices still needed evidence
that the applicants "had good Moral Characters, and
possessed good legal Abilities."[16] Only six of
the twenty-two individuals were admitted that first day:
four on the basis of offices that they held or had held
involving legal expertise; one after being vouched for
by Associate Justice James Wilson ("with apparent
Reluctance as against his wishes to do it for any one");
and one, Jared Ingersoll, on the basis of his recognized
eminence as a Philadelphia lawyer.[17] The remaining sixteen
were admitted the next day Wilson's hesitation to vouch
for any of his former colleagues from Pennsylvania may
be indicative of the determination of the justices not
to be responsible for the reputations of those admitted
to practice before the Court.
Furthermore, the episode described by Burd was particularly
important because, during the discussion of how the applicants
could establish their characters, it was suggested that
an already-admitted member of the Court's bar "should
vouch for ye rest of ye Bar, but ye Chief Justice said
that they had determined that one lawyer should not vouch
for another."[18] The justices's unwillingness to
verify the credentials of applicants for the bar after
the Court's first term in New York and their refusal to
allow the lawyers to do it for one another had led to
a very embarrassing incident. In reference to James Wilson's
waffling, Edward Burd wrote: "The Bar thought they
might have been treated with a little more delicacy by
a Gentleman who knew them all intimately."[19]
To resolve the dilemma of how to establish the credentials
of bar applicants, the Court turned to the Attorney General
of the United States. In February, 1791, the Court's minutes
begin to record lawyers being admitted to the bar on motion
of the Attorney General of the United States. This was
a new development. The minutes of the Court for the time
when it met in New York do not record that anyone moved
the admission of counsellors and attorneys. The Attorney
General, Edmund Randolph, held a special position in the
ranks of the practitioners before the Court. On the first
day that the Court had convened in February 1790, the
letters patent of Randolph as Attorney General had been
read right after those of the justices. Some contemporaries
even thought that the Attorney General was an officer
of the court.[20] Randolph never was formally admitted
to the Court's bar. By virtue of his special position,
he may have been viewed as especially qualified to present
applicants for the bar to the Court. Given that the Attorney
General's involvement in the admission procedure begins
during the same term when there was a dispute concerning
evidence of qualification for the bar, it seems that in
February 1791, the Attorney General assumed responsibility
for determining the credentials of applicants, a responsibility
the justices did not want.
That someone was needed to perform this role is apparent.
After February 1791 term, evidence of certificates and/or
character references survives for just over one-third
of those admitted to the Court's bar for the rest of the
time that the Court met in Philadelphia. This is quite
a contrast with the three lawyers admitted to the bar
in August, 1790, all of whom had had some form of written
documentation. Without this written evidence and with
the justices unwilling to verify qualification for the
bar, the Court involved the Attorney General in the admission
process. After the admission of William Lewis, the first
counsellor admitted on February 7, 1791, counsellors and
attorneys were almost always admitted on motion of the
Attorney General of the United States, a practice followed
during the period when Jay was Chief Justice. Of forty-eight
lawyers whose admission is recorded in the Court's minutes,
only nine were not admitted on motion of the Attorney
General.
An examination of these nine exceptions reveals the influence
of the presiding justice over admission procedure. With
John Jay presiding as Chief Justice, the minutes record
the admission of thirty-seven lawyers after February,
1791. Six of these lawyers (16%) were admitted without
the Attorney General so moving. Samuel Roberts of Pennsylvania
typifies certain factors common to these six admissions.
First, it cannot be determined if the Attorney General
was in Court on February 20, 1793, the day when Roberts
was admitted as a counsellor. Secondly William Rawle,
who had been admitted to the bar on February 8, 1791,
and who was United States attorney for Pennsylvania, moved
the admission. Thirdly Roberts presented both certificates
and a character reference as supporting documentation.
And lastly the Court's minutes note in unusual detail
the specifics of his application. Roberts is representative
of the six exceptional admissions in the following ways.
First, for five of the lawyers, it cannot be determined
if the Attorney General was present in Court to move the
admissions. Secondly in four instances, bar members of
recognized legal ability and reputation moved the admissions.
Thirdly in five out of the six cases, full documentation
supporting the application survives; this is particularly
striking given the incompleteness of the extant record
of this documentation mentioned above. Finally for four
of the lawyers, the Court's minutes reflect the special
nature of the admission process. Thus, during the time
that John Jay presided as Chief Justice, the Attorney
General moved all admissions unless there was a powerful
confluence of factors suggesting a different procedure.
And for only 16% of lawyers admitted did this confluence
occur.
When Associate Justice William Cushing presided, the pattern
was quite different. During the time that John Jay was
Chief Justice, Cushing was the presiding Associate Justice
in Jay's absence when eight lawyers were admitted to the
bar. Of those eight, three (38%) were admitted on the
motion of a member of the Supreme Court bar, rather than
on motion of the Attorney General. William Few typifies
the three. Few was admitted as a counsellor on February
11, 1792, on motion of Thomas Hartley a Pennsylvania congressman
who had gained admission to the Supreme Court's bar on
February 5, 1790. No certificate or character reference
has survived to document his application. Most notably
the Attorney General seems to have been in Court that
day but did not move the admission himself.
The above patterns indicate that Chief Justice Jay insisted
that the Attorney General be an integral part of the admission
process while Associate Justice Cushing did not;[21] the
latter practice would soon become the Court's norm. After
Jay left the bench, the Court's minutes record admission
to the bar of thirty lawyers in the five years preceding
removal to the new capital in Washington. Only three of
the thirty (10%) were admitted on motion of the Attorney
General. Whether Chief Justice Oliver Ellsworth or Associate
Justices William Cushing, James Wilson, or William Paterson
presided, the Attorney General no longer played the same
part in moving for the admission of new applicants to
the bar. This was not all that had changed; so too had
the relationship of the Attorney General to his fellow
practitioners before the Court. The letters patent of
Attorney General Charles Lee were read before the Court
and, unlike Edmund Randolph before him, Lee was admitted
formally to the bar on the motion of Edward Tilghman,
a member of the Court’s bar since February 7, 1791.[22]
The admission procedures followed during the 1790’s
seem to have been very much at the discretion of the presiding
justice. As Chief Justice, John Jay asserted his procedural
preference by involving the Attorney General who held
a special position before the Court on the basis of his
letters patent. Chief Justice Ellsworth and Associated
Justices Cushing, Wilson and Patton favored a different
procedure, which did not elevate the Attorney General
above the rest of the practitioners before the bar. This
variation in practice is representative of a general flux
as the Court gradually established procedures during the
first decade . It is also suggestive of the power of the
presiding justice to assert his preferences. Combined
with evidence presented earlier about the influence of
John Jay on the actions taken by the Court in its first
term, it is not too much to suggest that the assertion
of strong leadership during the Court’s first decade
set the stage for the role that John Marshall would assume
next.
Endnotes
1. William Cushing to John Jay, November 18, 1789, Photostat
in the Photostat Collection, Massachusetts Historical
Society; John Jay to William Cushing, December 7, 1789,
Robert Treat Paine Papers, Massachusetts Historical Society.
Only two changes have been made in transcribing quotations
from eighteenth-century documents: superior letters have
been brought down to the baseline, and baseline dashes
have been reproduced as modern dashes.
2. U.S., Statutes at Large, 1:93.
3. John Tucker was, at that time, one of two clerks of
the Supreme Judicial Court of Massachusetts. William Cushing
had been chief justice of that court from 1777 until his
retirement to accept appointment to the Supreme Court
of the United States, and, therefore, he was well acquainted
with Tucker's capabilities. Catalogue of Records and Files
in the Office of the Clerk of the Supreme Judicial Court
for the County of Suffolk (Boston, 1897), p. 118; Dictionary
of American Biography (hereafter, DAB).
4. Minutes of the Supreme Court of the United States,
General Records, RG 267, National Archives.
5. Records of the Office of the Clerk, RG 267, National
Archives.
6. Information on membership in the Supreme Court bar
comes from several sources: The Court's minutes (the most
complete listing), the Court's docket (both the minutes
and the docket are in General Records, RG 267, National
Archives), the parchment counsellor and attorney rolls,
and the bound attorney roll (Records of the Office of
the Clerk, RG 267, National Archives).
7. Records of the Office of the Clerk, RG 267, National
Archives.
8. DAB.
9. John Jay was a year ahead of Egbert Benson at King's
College. After graduation, Benson took an active part
in Jay's moot and presided at the Debating Society of
which Jay was also a member, Paul M. Hamlin, Legal Education
in Colonial New York (New York, 1939), pp. 134 n. 4, 202,
204 n.1.
10. DAB: Biographical Directory of the American Congress,
1774-1961 (Washington, D.C., 1961).
11. Charles Elliott Fitch, Memorial Encyclopedia of the
State of New York (New York, 1916), 1: 229-30; DAB; Laws
of the State of New York, Comprising the Constitution
and the Acts of the Legislature Since the Revolution,
2 vols. (1789).
12. DAB; Tyler's Quarterly Historical and Genealogical
Magazine, 14 (1932-1933), p. 69.
13. It was not until July 16, 1790, that Congress decided
finally to move first to Philadelphia and then to the
new federal district on the Potomac. "An Act for
establishing the temporary and permanent seat of the Government
of the United States," U.S., Statutes at Large, 1:
130.
14. John Rutledge was absent for the entire term, Robert
H. Harrison had resigned on January 21, 1790 (Library
of Congress Special Collection, RG 233, National Archives).
15. U.S., House of Representatives Journal, September
26, 1789; "An Act to regulate Processes in the Courts
of the United States," U.S., Statutes at Large, 1:
93-94.
16. Edward Burd to Jasper Yeates, February 8, 1791: Walker,
ed., The Burd Papers: Selections from Letters Written
by Edward Burd, 1763-1828 (n.p., 1899), p. 168; certificate
in Records of the Office of the Clerk, RG 267, National
Archives.
17. Edward Burd to Jasper Yeates, February 8, 1791: Walker,
ed., The Burd Papers, pp. 168-69.
18. Ibid., at 1169.
19. Ibid.
20. William Grayson to George Washington, September 22,
1789, George Washington Papers, Library of Congress.
21. James Wilson was presiding Associate Justice for three
admissions during the years when Jay was Chief Justice.
All three lawyers were admitted with no record of a motion
being made.
22. William Bradford, Jr., Attorney General from January
27, 1794, to August 23, 1795, already was a member of
the Supreme Court bar at the time of his appointment.
|
