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Editor's Preface
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EDITOR'S PREFACE The volumes in this series are intended to provide readers with a convenient scholarly introduction to the work and achievements of the Supreme Court of the United States for the period of one or more chief justiceships. An effort will be made to examine the Court's personnel and administration and to summarize its contribution in constitutional law, international law, and private law. While the periodization of the separate volumes follows the now well established historical tradition of focusing upon the chief justices, it should be emphasized that there is no intention to defend the doubtful thesis that the presiding officer of the Supreme Court is its dominant member. Custom and tradition assign certain administrative responsibilities to the chiefjustice, and it is these functions which distinguish his service from that of his associate justices. This institutional management role justifies our decision to divide the series into monographs delineated by chiefjusticeships. Leadership in the Supreme Court is predominantly a function of interpersonal relationships. The chiefjustice lacks authority to command obedience even in administrative matters. He must rely upon and cultivate the respect and deference that his associate justices are willing to accord him. Any scholarly attention to the role of the chiefjustice inevitably requires close examination of all relationships among the justices. Professor Casto's volume draws upon his extensive study of the Supreme Court in the earliest decade of its history, and more particularly upon his biographer's knowledge of the life and career of Oliver Ellsworth, who was not only the third ChiefJustice of the United States but also one of the prime architects of the Judiciary Act of 1789. It provides valuable insights into Court activities during the Federalist administrations of George Washington and John Adams. Until recently this has been a neglected period of Supreme Court history, largely eclipsed by Xl xii EDITOR'S PREFACE the great changes in administration and jurisprudential direction introduced by ChiefJustice John Marshall beginning in 1801. Publication of the manuscript collection of the Court's earliest years is now underway, and this monograph's many citations to those original sources evidences the great contributions being made by Dr. Maeva Marcus and her colleagues in the DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES (DHSC). In addition there is a reawakening of interest in these early years of the Supreme Court,l as Professor Casto's footnotes show quite clearly. It is hoped that this survey of these two important chiefjusticeships will generate even more scholarly research on this formative period. Every historical period deserves to be studied on its own record and not to be judged through the jaundiced eye of hindsight. The JayEllsworth Courts sought continuity with treasured English common law and established colonial practice. However, they also were keenly aware of the need to adapt those familiar institutions to accommodate new relationships in post-Revolutionary, and republican, America. As Professor Casto demonstrates, virtually every member of these Courts had seenjudicial and/or legislative service in colonial America or in the alternative had practiced law in the King's courts. Prominent in the political and professional life of their respective states, each brought localized preferences to his work on the Court. Despite their shared loyalty to the Federalist party, their views of federalism and their interpretations of the Federal Constitution were quite divergent. Moving forward cautiously at first the Jay-Ellsworth Courts made a tentative start in construing the Constitution of the United States. Their most notable contribution, in Chisholm v. Georgia,2 so violated pretensions of state sovereignty that it was overrruled by the Eleventh Amendment within two years of its decision. By way of contrast the Court's 1796 1. An early monograph, emerging from the ongoing editorial work on the papers of ChiefJustice John Jay, is Richard B. Morris, JOHN JAY: THE NATION AND THE COURT (1967). Professor Casto and Professor Wythe W. Holt, Jr., of the University of Alabama School of Law, have contributed a substantial number of law review articles over the past decade, most of them cited in the footnotes to this monograph. In addition Professor Stephen R. Presser has written extensively in law reviews and elsewhere, concerning the "bad boy" of the Ellsworth Court, Samuel Chase. His rehabilitation of Chase is set forth most completely in THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE (1991). For an excellent introduction to the historiography of this period see ORIGINS OF THE FEDERAL JUDICIARY: ESSAYS ON THE...