Chapter 5: The Oliver Ellsworth Court (1796-1800)

The Five “Courts” Up To The Civil War

To fill the sudden Chief Justice vacancy caused by the Rutledge rejection, Washington turns first to sitting Justice William Cushing, but he is 63 years and declines the offer. The choice then goes to the Senate’s own Oliver Ellsworth of Connecticut, one of the fourteen members who just voted against confirming Rutledge. He is approved unanimously and will serve as Chief Justice for the next four years.

A total of seven Associate Justices will serve under Oliver Ellsworth during his nearly four years as Chief, with all linked to the Federalist philosophy.

Carry-overs include Paterson, Cushing, Wilson and Iredell. The latter two will die in office and under tragic circumstances. James Wilson – a giant at the 1787 Convention — is first to go at age fifty-five after being ruined financially in the Panic of 1796, landing twice in Debtor’s Prison, then suffering a fatal stroke. James Iredell follows at only forty-eight, literally done in by his circuit riding duties.

New members are Bushrod Washington, Samuel Chase and Alfred Moore.

Members of the “Ellsworth Court:” 1796-1800

Oliver Ellsworth is born in 1745, the second son of militia Captain David Ellsworth, a wealthy farmer in Windsor, Connecticut, just north of the state capital in Hartford. His father wants Oliver to become a Calvinist minister, and he enrolls at Yale before transferring to Princeton and graduating in 1766. But he is soon drawn to the law, passes the bar in 1771 and opens his own practice. He enters politics in 1773 and is elected to the Connecticut General Assembly, where he begins to build his reputation across the state. As the Revolutionary War breaks out, Ellsworth is appointed to the Second Continental Congress and serves there for six years, to the end of the conflict. Then comes a transformative moment when he is chosen as a delegate to the 1787 Constitutional Convention along with Roger Sherman and William Johnson, both roughly two decades his senior.

Ellsworth makes several important contributions while in Philadelphia. The “Connecticut Compromise” breaks the large state – small state logjam by proposing a bicameral Congress, with each state, regardless of size, being represented by two Senators. He supports the South’s demand for the 3/5^th Compromise, while also urging that slavery be abolished over time. He proposes that the new nation be called “the United States of America” and is one of five men chosen for the “Committee of Detail” which drafts the wording of the final Constitution itself.

In recognition of his efforts, Ellsworth joins Johnson in 1789 as one of Connecticut’s first two Senators. Again his impact is remarkable. His first project is to author the “Judiciary Act of 1789” which defines the structure and roles of the Federal Judiciary, including the Supreme Court. He helps Madison gain approval of the Bill of Rights amendments, and later throws his weight behind the 1794 “Jay Treaty” with Britain. Ellsworth is serving his second term in the Senate when Washington nominates him to replace Rutledge as Chief Justice.

Three new Associate Justices join the Court during Ellsworth’s tenure: in 1796 Samuel Chase replaces John Blair Jr. who resigns; in 1798 James Wilson dies and is replaced by Bushrod Washington; in 1799 Iredell’s death leads to Alfred Moore.

Samuel Chase will always be remembered as the only Supreme Court Justice in history to be impeached by the House of Representatives. He grows up in Maryland, passes the bar in 1761 and then serves in the Continental Congress and signs the Declaration of Independence. He is a dedicated Federalist who spends twenty years in the General Assembly before being named Chief Justice of the Maryland Superior Court. His tenure is marked by heated exchanges with his political rivals. They become particularly outraged after Washington appoints him to the high court in 1796 by the political speeches he makes on behalf of John Adams and his harsh sentences for those who violate the 1798 Alien and Sedition Acts. In 1804 the Anti-Federalists hold large majorities in Congress, and the House, prompted by Jefferson, passes eight articles of impeachment against Chase, focused on his “promoting political bias from the bench.” In a surprise turn of events, however, the Senate fails to achieve the 2/3^rd majority needed to convict, despite holding a 25-9 partisan edge. When Chase returns to his post to serve seven more years, the Senate’s vote is seen as a signal of restraint in regard to Congressional tampering with an “independent judicial branch.”

Bushrod Washington’s family connections give him a boost throughout his career – with his father, John, being a younger brother of the President. He grows up at Mt. Vernon, graduates from William & Mary, learns the law from George Wythe and, after a brief stint in the Continental Army, opens a successful practice in Westmoreland County, Virginia. In 1787 he is elected to the Virginia House of Delegates. In 1798 his other former law mentor, James Wilson, dies and John Marshall turns down an offer to fill his Supreme Court seat. John Adams then nominates Bushrod, who is only thirty-six at the time and will go on to serve a total of thirty years. After his uncle George dies in 1799, Bushrod lives from then on at Mt. Vernon, and is buried there.

Alfred Moore’s father is a rice plantation owner and prominent North Carolina judge who is suspended from office for opposing the 1765 Stamp Act. He teaches his son the law, and Alfred passes the bar at age twenty in 1775. When the war begins he joins the 1^st NC Regiment, commanded by his uncle, and fights alongside his brother who is killed in battle. After his father passes, he returns home to manage his family estate and to sabotage British forces in the area. In return they burn his “Buchoi” estate (a tribal name). With the war over, Moore is elected to the North Carolina General Assembly, then becomes the state’s Attorney General after James Iredell resigns. He leads the bitterly fought campaign to ratify the U.S. Constitution, but then loses a 1795 bid for a U.S. Senate seat by one vote to an anti-federalist. He is serving as a Superior Court judge in 1799 when John Adams taps him to succeed Iredell on the Supreme Court. (Some claim that Moore is dimuitive at only 4’5” tall; others reverse this to 5’4”.)

Additional Profiles of the Ellsworth Court Justices

The Workings of the Court

Ellsworth’s tenure as Chief is marked less by issuing landmark opinions and more by advancing his administrative agenda for the federal bench. He demands, for example, that Court rulings be systematically written down rather than simply delivered orally. He also strives for greater unity and clarity around decisions, by trying to do away with the seriatum tradition — each justice issuing their own individual views on every case — and instead assigning one member to write a “majority summary.” This change, however, will take further pushes from his successors to take hold.

The two cases most often cited from the Ellsworth Court are adjudicated in 1796 and ironically they both go against one Daniel Hylton, a Virginia farmer and hard core state’s rights advocate. In the first. Hylton v United States, he refuses to pay an annual tax on the carriages he owns, claiming that the Constitution demands that such “direct taxes” be apportioned according to the state’s total population. The Court decides however that a tax on “personal property” (as opposed to land) does not qualify as a “direct tax” and he is forced to pay. In Ware v Hylton, the persistent Hylton again tries to avoid payment of a bill, this time citing a Virginia state law. But the court disagrees, affirming for the first time that Federal law trumps State law.

Some of the Most Impactful Cases

The “Ellsworth Court” (1796-1800)