and

Legal Miscellany.

PUBLISHED BY THE D. B. CANFIELD COMPANY LIMITED, PHILADELPHIA.

SUBSCRIPTION, ONE DOLLAR A YEAR. SINGLE COPY, TEN CENTS.

Copyrighted 1890. Entered at the Post Office at Philadelphia as second-class matter.

Vol. II.

February 15, 1890.

No. 2.

OLIVER ELLSWORTH.

Born April 29, 1745; Died November 26, 1807.

The fourth Chief Justice of the United States, like the third, was a New Englander, though a native of Connecticut, and a student of Yale College, finally graduating at Nassau Hall, Princeton, in 1766.

After an ineffectual effort at theology, undertaken in deference to his father's wishes, Ellsworth finally began the much more congenial study of the civil law, and was admitted to practice in 1771, at Hartford, in his native State.

The four years intervening before the commencement of his political career, began with marriage and poverty, extremely little practice, and much hard work in establishing himself and wife on a small uncultivated farm, some ten miles out of Hartford, which his father had leased to him upon his marriage. And these struggles lasted until the commencement of his political career, when success in a suit of some importance, gave him the needed opportunity of displaying his talents. Ellsworth was an earnest man, and though devoid of the graces of imagination, was in the habit of so concentrating upon the main points of his cases as to win success by lucid statement and concise argument. Thus success was won upon small but increasing stores of legal knowledge, and with success and economy, came finally both a fortune (for those days) and great reputation as an advocate.

In political life, Ellsworth was a member of the General Assembly of Connecticut, and in the darker times of the

Revolution, of the Continental Congress. He had valuable business talents which were used to good effect, but of course produced none of the flashing glories of a great orator or leader.

Ellsworth's judicial duties began in the old Continental Congress, very early in his service there, when he was appointed a member of the Committee of Appeals from the State Courts of admiralty. The case of the Active will indicate in a general way, the duties of this committee, as well as the necessity for a strong but just National Government in the administration of substantial justice.

The next judicial duties resulted from membership of the Governor's Council, or the Upper House, of Connecticut, for four years, beginning in 1780. Here, Ellsworth was one of a body whose duties included those of a Supreme Court of Errors. In 1784, Ellsworth became a Judge of the Superior Court of his native State, where cases of little novelty or interest for a modern reader engaged the attention of the court.

Ellsworth represented his native State in the Constitutional Convention of 1787, in which Calhoun attributes to him, along with Roger Sherman of Connecticut, and Judge Patterson of New Jersey, such actions as resulted in the choice of a Federal instead of a National Government." This opinion of Calhoun is fortified by the successful advocacy in that Convention, of equal State representation in the Senate and the clauses relating to the colored people. "The morality or wisdom of slavery are considerations belonging to the States themselves," was the curt way in which Ellsworth shut his eyes to the momentous future of the negro race in this country. He was equally short-sighted in another present political problem, when he thought slavery would disappear before the growth of a body of poor free laborers, who would "render slaves useless." This is the political economy of William G. Sumner, but it costs the future great treasure on account of "cranks' and "radicals" and "reformers," who will not be quiet.

Ellsworth also favored the present cumbrous electoral college and a six years' term for the President. Other ideas, which failed of approval in this Convention, were such as might be expected from one who has been styled as one "among

the ablest advocates of what was termed the States Rights party."

All biographers notice the striking result of Ellworth's opposition, in the Convention, to the words "National Government," for which he succeeded in having chosen "Govern ment of the United States."

After all his influence in moulding the instrument in a direction opposed to subsequent events, pressing domestic affairs called him home before the formalities of signing had transpired, and so the name of Ellsworth does not appear upon that document.

When the work of the Convention was done, it met the approval of Ellsworth so far as to command his earnest and unqualified support in the State Convention, which gave Connecticut's approval to our present form of National Government.

The first Senate under our present Constitution contained many distinguished men of the times, but none of them performed a more valuable service than one of the Senators from Connecticut, our Ellsworth. As Chairman of a Committee to bring in a bill for organizing the Judiciary of the United States, he drafted the bill which forms the foundation of our National judicial system. This bill passed with little alteration, though there was opposition to it from its completeness, in establishing the Circuit and District Courts, in lieu of adding National jurisdiction to the State Courts, under the supervising power of the United States Supreme Court on appeal. Some of Ellsworth's States Rights sentiments came into play in drafting his bill. He would not have the State Judges constituted "pro tanto, Federal judges." He was patriot enough to "consider a proper arrangement of the Judiciary, however difficult to establish, among the best securities the Government" of the Union could have.

The Judiciary Act was chapter twenty of the Acts of the first Congress, "begun and held at the City of New York, on Wednesday, the fourth of March, in the year 1789," and was approved by President Washington, September 24, in the same year.

Section one has been altered by increasing the associate

justices from four to eight and the quorum from four to six; and the two terms, originally prescribed, have been consolidated into one. (R. S. §§ 673, 674, 684.)

Section two prescribed thirteen districts, which have now grown to fifty-eight. (R. S. §§ 530-550.) The original thirteen Districts were, the Main District, consisting of all of Massachusetts east of New Hampshire; the New Hampshire District; the Massachusetts District consisting of the balance of the State; the Connecticut District; the New York District; the New Jersey District; the Pennsylvania District; the Delaware District; the Maryland District; the Virginia District, consisting of Virginia, except the Kentucky District; the South Carolina District, and the Georgia District.

Section three erected the District Courts and prescribed their sessions; in these details, many changes have been made as the country has grown in population and wealth, and many particulars added, until this section is now represented by two whole chapters in the Revised Statutes of the United States. (R. S. §§ 551-62, 572–603.)

Section four established three Circuits, the Middle, comprising New Jersey, Pennsylvania, Delaware, Maryland and Virginia Districts; the Southern, South Carolina and Georgia Districts; and the Eastern, New Hampshire, Massachusetts, Connecticut and New York Districts. The Circuits now number nine, covering all the States. (R. S. § 604.)

There was no provision for a circuit judge, the circuit courts being composed of two justices of the Supreme Court and the District Judge. The existence of a single District Judge was, however, sufficient to establish the judiciary of the Nation as separate and distinct from the State judiciary. This was opposed by the States Rights party and may still be regarded as an unsettled question of expediency. Still, it has really preserved the independence of the State judges, who would know two masters, indeed, if revenue and admiralty and patent causes were added to their jurisdiction.

Section five prescribed the sessions of the Circuit Courts. Here too, the growth of the country had called for details in organization and times of holding the courts. (R. S. §§ 605-628; 658–672.)