Minutes of the Supreme Court of the United States, 1–10 February 1790
Minutes of the Supreme Court of the United States
[New York, 1–10 February 1790]
At the Supreme Judicial Court of the United States, begun and held at New York, (being the Seat of the National Government) on the first Monday of February, and on the first day of said month Anno Domini 1790.—
Present.—
The Honble John Jay Esquire Chief Justice
The Honble William Cushing, and James Wilson, Esqrs. Associate Justices—1
This being the day assigned by Law, for commencing the (first) Sessions of the Supreme Court of the United States, and a Sufficient Number of the Justices ^to form a quorum^2 not being convened, the Court is adjourned, by the Justices now present, untill to Morrow, at one of the Clock in the afternoon.—
Tuesday, February 2nd. 1790.—
Present—
The Honble John Jay Esqr. Chief Justice.
The Honble William Cushing, James Wilson, and John Blair, Esqrs. Associate Justices—
Proclamation is made and the Court is opened—
Letters patent to the Honble. John Jay Esquire, bearing date the 26th. day of September 1789. appointing him Chief Justice, of the Supreme Court of the United States, are openly read, and published in Court.—
Letters patent to the Honble. William Cushing Esquire, bearing date the 27th. day of September 1789. appointing him associate Justice of the Supreme Court of the United States, are openly read and published in Court.—
Letters patent to the Honble. James Willson: Esquire, bearing date the 29th. day of September 1789. appointing him Associate Justice of the Supreme Court of the United States, are openly read and published in Court.—
Letters patent to the Honble. John Blair Esquire bearing date the 30th—day of September 1789. appointing him Associate Justice of the Supreme Court of the United States, are openly read and published in Court.3
Letters patent to Edmund Randolph of Virginia Esqr. bearing date the 26th. day of September 1789. appointing him Attorney General for the United States are openly read and published in Court.
Ordered, that Richard Wenman, be, and he is appointed Cryer of this Court.
Adjourned untill to morrow at one of the Clock in the Afternoon.—
Wednesday February 3rd. 1789. 1790—4
Present.
The Honble. John Jay, Esquire Chief Justice.
The Honble. William Cushing, James Wilson and John Blair, Esquires Associate Justices.
Proclamation is made and the Court is opened.
Ordered, that John Tucker Esqr. of Boston, be the Clerk of this Court.—That he reside, and keep his Office at the Seat of the National Government, and that he do not practice either as an Attorney or a Counsellor in this Court while he shall continue to be Clerk of the same.
The said John Tucker in open Court, takes the Oath of Office by Law prescribed to be taken by the Clerk of the Court, and an Oath to support the Constitution of the United States; and also gives Bond (approved of by this Court to the United States, for the faithful discharge of his Duty as Clerk aforesaid, as by Law required[)].5
Ordered, that the Seal of this Court shall be the Arms of the United States, engraved on a circular piece of Steel of the Size of a Dollar, with these words in the Margin “The Seal of the Supreme Court of the United States”—And that the Seals of the Circuit Courts shall be the Arms of the United States engraven on circular pieces of Silver of the Size of half a Dollar, with these words in the Margin—Vizt. In the upper part “the Seal of the circuit Court, in the lower part the name of the District for which it is intended[”].
Ordered, that the Clerk of this Court cause the before mentioned Seals to be made accordingly, and when done that he convey those for the Circuit Courts to the district Clerks respectively.
Adjourned to Friday the fifth day of February 1790.
Friday February 5th—1790.
Present.
The Honble. John Jay Esqr. Chief Justice.
The Honble. William Cushing, James Wilson, and John Blair, Esqrs. Associate Justices.
Proclamation is made and the Court is opened.
Elias Boudinot of New Jersey, Esqr., Thomas Hartley. of Pennsylvania and Richard Harrison of New York, Esqrs. are severally sworn as by Law required, and are admitted Counsellors of this Court.
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.
Ordered, that they respectively take the following Oath, Vizt. I do solemnly swear that I will demean myself (as an Attorney or Counsellor) of the Court uprightly, and according to Law; and that I will support the Constitution of the United States.
Ordered, that (unless and untill it shall be otherwise provided by Law) all Process of this Court. shall be in the Name of “the President of the United States—[”]6
Adjourned untill monday the Eighth day of Feby. 1790.
Monday February 8th 1790.
Present.
The Honble. John Jay Esqr. Chief Justice.
The Honble. William Cushing James Wilson, and John Blair, Esqrs. Associate Justices.
Proclamation is made and the Court is opened.
Egbert Benson— John Lawrence— Theodore Sedgwick— William Smith— Morgan Lewis[—] James Jackson— Fisher Ames— George Thacher[—] Richard Varrick— and Robert Morris Esqrs. are severally sworn according to Law, and admitted Counsellors of this Court.
William Houston Esqr is also sworn as the Law directs, and is admitted an Attorney of this Court.
Adjourned to Tuesday the ninth day of Feby. 1790.
Tuesday February 9th.1790
Present.
The Honble. John Jay Esqr. Chief Justice.
The Honble. William Cushing James Wilson and John Blair, Esqrs. Associate Justices.
Proclamation is made and the Court is opened.
Samuel Jones— Abraham Ogden— Elisha Boudinot— William Paterson— Ezekiel Gilbert— and Cornelius [J]. Bogert Esqrs. are severally sworn as the Law directs, and are admitted as Counsellors of this Court.
Edward Livingston, and Jacob Morton Esqrs. are severally sworn according to Law, and admitted Attornies of this Court.
Adjourned untill February the tenth day, 1790.
Wednesday Feby. 10th. 1790.
Present.
The Honble. John Jay Esqr. Chief Justice.
The Honble. William Cushing James Wilson and John Blair Esqrs. Associate Justices.
Proclamation is made and the Court is opened.
Bartholomew De Hart— John Keep— Peter Masterton, and William Willcocks Esqrs are now severally sworn as the Law directs, and are admitted Attornies of this Court.
New York February 10th. 1790— Previous Proclamation being made, this Court is adjourned to the time and place appointed by Law.
(signed.)“John Tucker Clk”
D, DNA: RG 267, General Records: Engrossed (Fine) Minutes of the Supreme Court; , 1: 171–81. D, Original Fine Minutes of John Tucker, DNA: RG 267, General Records, Original Minute Books; , 1: 335–40.
1. Here and below, lists of names in column form with braces are rendered in paragraph form.
2. The parentheses around the word “first” and the interlined words “to form a quorum” were added in pencil in a different hand and are probably not contemporary.
3. See GW’s commission to JJ of 26 Sept. 1789, above; and for similar “letters patent” to the other justices mentioned, see , 1: 28–29, 50–51, 57. For the appointment of Randolph as attorney general, see , 4: 106–8.
4. The correction to 1790 was added in pencil, probably at a later date.
5. On the nomination and appointment of John Tucker, see , 1: 157–60; and Theodore Sedgwick to JJ, 23 Sept., and Fisher Ames to JJ, 10 Nov. 1789, both above.
6. For JJ’s draft of these rules, see Dft, DNA: RG 267, Office of the Clerk, Orders Concerning Rules of Court, Box 1 (EJ: 13021). JJ’s initial rules and practices regarding admission of lawyers as attorneys or counsellors to the Supreme Court aroused some resentment. During Jay’s gubernatorial campaign of 1792, an opponent writing under the pseudonym “Aristogiton” asserted sarcastically that New York lawyers were “bound to him for the decency and delicacy with which they were treated when they applied to be admitted to the federal bar, and for the pains he took to establish their reputation by oaths and certificates and the rather as this favor was so distinguishingly bestowed on the lawyers of this state only.” Daily Advertiser (New York), 1 Mar. 1792. This piece, sometimes attributed to Robert R. Livingston, on this point probably reflected the views of either Edward Livingston or Henry Brockholst Livingston, both of whom were admitted to the federal bar in New York at this time. For further commentary, see “A Free Elector”, Daily Advertiser, 5 Mar. 1792; “A.B.”, Daily Advertiser, 7 Mar. 1792.
The large group of Philadelphia lawyers presenting themselves for admission in February 1791 after the court moved to Philadelphia were reportedly similarly surprised and offended by the need to produce certificates of character and prove their credentials, but ultimately conformed. , 1: 53–55, citing Edward Burd to Jasper Yeates, 8 Feb. 1791, quoted in a letter from Francis Rawle in American Law Review, 34 (1900): 628–29.
The distinction between counsellors and attorneys adopted by the Supreme Court at this time was based on English procedures and the practices of several states. Only counsellors could plead a case before the Supreme Court; attorneys could file motions and do other forms of paperwork. , 1: 177n18.
The lawyers listed here and below in these minutes who were admitted to practice as counsellors before the U.S. Supreme Court and have not been previously identified are: Thomas Hartley of Pennsylvania (1748–1800), William Loughton Smith of South Carolina (1758–1812), Morgan Lewis of New York (1754–1844), James Jackson of Georgia (1757–1806), George Thatcher of Massachusetts (1754–1824), Abraham Ogden of New Jersey (1743–1798), Elisha Boudinot of New Jersey (1749–1819), Ezekiel Gilbert of New York (1756–1841), and Cornelius J. Bogert (sometimes spelled Bogart) of New York (1754–1832). At the time of their admission, Elias Boudinot, Hartley, Benson, Laurance, Smith, Jackson, Ames, and Thatcher were all delegates to the U.S. House of Representatives. The lawyers listed as admitted to practice as attorneys before the U.S. Supreme Court who have not been previously identified are: William Houstoun, formerly a congressman from Georgia but at this time a New York resident (1757–1812), Jacob Morton of New York (1761–1836), Balthazar [mistakenly listed as Bartholomew in the Minutes] DeHaert (sometimes spelled DeHart) of New York (c. 1752–1830), John W. Keese [misspelled Keep in the Minutes] (1755–1809) of New York, Peter Masterton (baptized 1746) of New York, and William Willcocks (1750–1826) of New York. See , 1: 176–81, and notes.