No CrossRef data available.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Published online by Cambridge University Press: 28 October 2011
In the spring of 1789, officials elected under the Constitution met in New York to begin the work of organizing the new federal government. The federalists had won the battle for ratification, but the war to establish an accepted and respected federal structure was yet to be won. The opponents of centralized government had been subdued, but not conquered. Issues that had caused heated debate in the Constitutional Convention and in the state ratifying conventions lay just beneath the surface and could be revived easily. Any resurgence could shake the foundation of the new federal edifice.
1. For Morris's business activities, see Oberholtzer, Ellis Paxson, Robert Morris, Patriot and Financier (New York, 1903)Google Scholar, and Steeg, Clarence L. Ver, Robert Morris: Revolutionary Financier, With an Analysis of His Earlier Career (Philadelphia, 1954)CrossRefGoogle Scholar.
2. Ver Steeg, Robert Morris, pp. 29–35, 41–42, 58–61; Oberholtzer, Robert Morris, pp. 67, 68, 76.
3. Ver Steeg, Robert Morris, pp. 187–88; Oberholtzer, Robert Morris, pp. 249–50.
4. Details about the case are drawn from Morris et al. v. Allen et al. [hereafter Morris v. Allen], Record of the Pleadings and Decrees in the Court of Equity, 1788, pp. 252–98, Superior Court of Law and Equity for Edenton District, North Carolina Department of Archives and History [hereafter NCDAH], Raleigh. (The quotations in the text are from Morris's pleading.) For the depressed state of commerce along the coast of North Carolina during 1781, see Crittenden, Charles Christopher, The Commerce of North Carolina, 1763–1789 (New Haven, 1936), pp. 146,153.Google Scholar Conditions for shipping were not much better in Philadelphia: Doerflinger, Thomas M., A Vigorous Spirit of Enterprise: Merchants and Economic Development in Revolutionary Philadelphia (Chapel Hill, 1986), p. 206Google Scholar and Table 14 on p. 207.
5. Morris v. Allen, Record of the Pleadings and Decrees in the Court of Equity, pp. 252–98, Superior Court of Law and Equity for Edenton District, NCDAH. During 1782 the British directed their offensive against American commerce with devastating results: Ver Steeg, Robert Morris, p. 138; Doerflinger, A Vigorous Spirit of Enterprise, Table 14 on p. 207; Pierce Butler to James Iredell, Apr. 5 and July 31, 1782, in The Papers of James Iredell, 2 vols. ed. Don Higginbotham (Raleigh, 1976), 2:334, 349. For the suit over the loss of the Hancock, see account below.
6. Hugh Williamson to James Iredell, Mar. 6, 1782, in Papers of James Iredell, ed. Higginbotham 2:331; Will of Robert Smith, James Iredell Sr. and Jr. Papers, Duke University, Durham, North Carolina. For the confusion in Smith's accounts and efforts to settle them, see James Iredell to Messrs. Conyngham, Nesbitt & Co., Jan. 3 and Sept. 6, 1784, draft copies in Charles E. Johnson Collection, NCDAH.
7. Ver Steeg, Robert Morris, p. 186; James Iredell to Messrs. Conyngham, Nesbitt & Co., Sept. 6, 1784, draft copy in Charles E. Johnson Collection, NCDAH; Morris to Samuel Johnston, Feb. 8, Mar. 10 and 15, and June 28, 1785, Hayes Collection, Southern Historical Collection, University of North Carolina, Chapel Hill; Johnston to Morris, Apr. 1, 1785, ibid; Pleading of Josiah Collins and James Iredell, Morris v. Allen, Record of the Pleadings and Decrees in the Court of Equity, pp. 293–98, Superior Court of Law and Equity for Edenton District, NCDAH.
8. Cooper v. Morris, Trial Docket, 1781–86, Chowan County Court of Pleas and Quarter Sessions, NCDAH, entries under June, September, and December 1782, March, June, September, and December 1783, and March, June, September, and December 1784; Iredell to Messrs. Conyngham, Nesbitt & Co., Jan. 3, 1784, draft copy in Charles E. Johnson Collection, NCDAH; Robert Morris to John Williams, Nov. 23, 1784, John Williams Papers, NCDAH.
9. Cooper had attached Morris's assets in connection with an additional claim in late 1784: Robert Morris to John Williams, Nov. 23, 1784, John Williams Papers, NCDAH. For Morris's efforts to settle his accounts with Cooper, see Morris to Samuel Johnston, Feb. 8 and Mar. 10 and 15, 1785, Hayes Collection, Southern Historical Collection, University of North Carolina.
10. Allen et al. v. Morris et al. [hereafter Allen v. Morris], Trial Docket, 1786–87, Chowan County Court of Pleas and Quarter Sessions, NCDAH, entries under December 1786, March, June, and September 1787; also Minute Docket, 1787, 1795–96, Chowan County Court of Pleas and Quarter Sessions, NCDAH, entries under Mar. 29 and June 28, 1787, NCDAH. At the same time that this suit was before the Court of Pleas and Quarter Sessions, a separate suit was brought on a different account against Morris and Nesbitt by Thomas Cox, one of the Edenton merchants involved in the Hancock litigation. See the same Trial Docket entries as listed above for Allen v. Morris; see also the same Minute Docket, entry for Sept. 29, 1787.
11. Minute Docket, 1788–89, 1790–93, Superior Court of Law and Equity for Edenton District, NCDAH, entry for May term 1788. Morris may have taken a more active role in handling his affairs in North Carolina during late 1787 and early 1788 because he was nearby in Virginia for seven months beginning in Nov. 1787: James Madison to George Washington, Nov. 18, 1787, in The Papers of James Madison, 14 vols. ed. William T. Hutchinson et al. (Chicago and Charlottesville, 1962–83), 10:253, 254n.
12. Morris to John Williams, Nov. 23, 1784, John Williams Papers, NCDAH; Morris to Samuel Johnston, Mar. 10, 1785, Hayes Collection, Southern Historical Collection, University of North Carolina (quote from this letter).
13. Johnston to Morris, Apr. 1, 1785, Hayes Collection, Southern Historical Collection, University of North Carolina.
14. See Minute Docket, 1787, 1795–96, Chowan County Court of Pleas and Quarter Sessions, entries under Mar. 29 and June 28, 1787, NCDAH.
15. Hooper, William to Iredell, James, July 6, 1785, Jan. 22, 1786 [should be 1787], Aug. 1, 1786, in The Life and Correspondence of James Iredell, 2 vols. ed. McRee, Griffith J. (New York, 1857–1858), 2:125–26, 132–33, 141Google Scholar; Archibald Maclaine to James Iredell, Mar. 6, 1786, Aug. 3, 1786, in ibid. 2:137–38, 143–44; Alfred Moore to James Iredell, Dec. 14, 1786, in ibid. 2:153–54. For actions in the legislature, see The State Records of North Carolina, 16 vols. ed. Clark, Walter [numbered 11–26] (Raleigh, 1886–1907), 18Google Scholar:vi–viii, 42, 136–43, 146, 147, 167, 181, 194–95, 212–17, 362, 367–68, 369, 390, 393, 408, 420, 421–25, 428–29, 457, 461, 476, 477–83. For the contending forces in the struggle to alter the court system, see also Smith, Penelope Sue, “Creation of an American State: Politics in North Carolina, 1765–89” (Ph.D. thesis, Rice University, 1980), pp. 487–91, 507–8, 512–21, 554–57Google Scholar.
16. Archibald Maclaine to James Iredell, July 11, 1787, and “An Elector [James Iredell] to the Public,” Aug. 17, 1786, in Life and Correspondence of James Iredell, ed. McRee 2:164–65,148–49; Robinson, Blackwell P., William R. Davie (Chapel Hill, 1957), pp. 159–60Google Scholar; Connor, Robert D. W., North Carolina, Rebuilding an Ancient Commonwealth, 4 vols. (1929; repr. Spartanburg, S.C., 1973), 1:394–95, 397Google Scholar; Ashe, Samuel A., History of North Carolina, 2 vols. (Greensboro, 1908–1925), 2:7, 44–45.Google Scholar For the effect of economic depression and insufficient circulating currency, see Waldrup, John Charles, “James Iredell and the Practice of Law in Revolutionary Era North Carolina” (Ph.D. thesis, University of North Carolina, 1985), pp. 110–18, 238–39, 301–23.Google Scholar See also Smith, “Creation of an American State,” pp. 487–91.
17. Boyd, William K., ed., Some Eighteenth Century Tracts Concerning North Carolina (1927; repr. Spartanburg, S.C., 1973), pp. 455–56Google Scholar; State Records of North Carolina, ed. Clark, 18:461, 476Google Scholar.
18. For a review of the discussion of the judiciary in the Constitutional Convention, see Goebel, Julius Jr., The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (New York, 1971), Chapter 5Google Scholar.
19. Ibid.; Farrand, Max, ed., The Records of the Federal Convention of 1787, rev. ed. in 4 vols. (New Haven, 1937), 2:46Google Scholar (for quote). See also James Madison to Edmund Randolph, Apr. 8, 1787, in Papers of James Madison, ed. Hutchinson et al. 10:370; Bator, Paul M. et al. , Hart and Wechsler's The Federal Courts and the Federal System (Mineola, N.Y., 1973), pp. 12–19Google Scholar.
20. Goebel provides an overview of this debate: Antecendents and Beginnings to 1801, pp. 280–91, Chapters 7, 8, 9.
21. Jensen, Merrill, Kaminski, John P., and Saladino, Gaspare J., eds., The Documentary History of the Ratification of the Constitution, 8 vols. [numbered 1–3, 8, 13–16] (Madison, Wisc., 1976–1988), vol. 2, Ratification of the Constitution by the States: Pennsylvania, pp. 518–20, 574Google Scholar (quotes on p. 519); Cooke, Jacob E., ed., The Federalist (Middletown, Conn., 1961), no. 80 (Hamilton), pp. 534–41 (quote at 537–38)Google Scholar; Elliot, Jonathan, ed., The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787 …, 5 vols. (1836–45; repr. Philadelphia, 1891), 3:533 (quoted), 534–35, 538, 583.Google Scholar See also no. 81 (Hamilton) in The Federalist, ed. Cooke, pp. 546–47. For examinations of the origins of diversity jurisdiction focusing on some of the themes noted here, see Friendly, Henry J., “The Historic Basis of Diversity Jurisdiction,” Harvard Law Review 41 (February 1928): 487–98CrossRefGoogle Scholar; Frank, John P., “Historical Bases of the Federal Judicial System,” Law and Contemporary Problems 13 (Winter 1948): 23–27CrossRefGoogle Scholar.
22. Documentary History of the Ratification of the Constitution, ed. Jensen, Kaminski, and Saladino 2:518–19 (James Wilson in Pennsylvania convention); Debates, ed. Elliot, 3:553–54 (John Marshall in Virginia convention). See also no. 81 (Hamilton) in The Federalist, ed. Cooke, pp. 554–56.
23. Storing, Herbert J., ed., The Complete Anti-Federalist, 7 vols. (Chicago, 1981), 2:57CrossRefGoogle Scholar (Mason); 2:12 (Martin); 2:417–42 (“Brutus”). See also ibid. 2:97 (Edmund Randolph in letter explaining his not signing the Constitution); 2:140, 148 (“Centinel”); 2:243–44 (“Federal Farmer”); 3:15 (Minority of the Pennsylvania House of Representatives); 3:156–57 (Minority of the Pennsylvania Convention); 5:182–83 (“Impartial Examiner”); 5:246 (Patrick Henry in Virginia convention); 6:184 (George Clinton in New York convention).
24. Lycan, Gilbert L., “Alexander Hamilton and the North Carolina Federalists,” North Carolina Historical Review 25 (October 1948): 447Google Scholar. The most thorough study of ratification in North Carolina is Louise Irby Trenholme, The Ratification of the Federal Constitution in North Carolina (New York, 1932), Chapters 3–6Google Scholar.
25. Life and Correspondence of James Iredell, ed. McRee 2:193; Boyd, Julian Parks, ed., “A North Carolina Citizen on the Federal Constitution, 1788,” North Carolina Historical Review 16 (January 1939): 50–51.Google Scholar See also “Publicola” (Archibald Maclaine) in Documentary History of the Ratification of the Constitution, ed. Jensen, Kaminski, and Saladino 16:439–40, 493–97; Williamson's, Hugh “Remarks on the New Plan of Government,” in Essays on the Constitution of the United States Published During Its Discussion by the People, 1787–1788, ed. Ford, Paul Leicester (Brooklyn, 1892), pp. 399–400Google Scholar.
26. Others who spoke in opposition to the federal judiciary were Timothy Bloodworth, Joseph McDowall, Matthew Locke, and Andrew Bass. For the anti-federalist arguments, see Debates, ed. Elliot 4:51, 136–39, 142–43, 149–50, 151, 152–55, 163–64, 167–70, 174–75 (quotes at pp. 51, 136–37, 138).
27. In addition to those individuals quoted, Richard Dobbs Spaight also defended the judiciary proposed in the Constitution. For the federalists' arguments, see Debates, ed. Elliot 4:139–42, 144–49, 150–51, 151–52, 155–63, 164–67, 170–74, 175–76 (quotes at pp. 141, 142, 159, 172).
28. Debates, ed. Elliot 4:242–47, 251. The lack of a bill of rights and of protections for jury trial were voiced throughout the debate on the judiciary. Ibid. 4:137–72.
29. For an overview of the amendments proposed by the states (including those of New Hampshire and Massachusetts mentioned above), as well as those proposed during the first session of the First Congress, see The Documentary History of the First Federal Congress of the United States of America, 1789–1791, 7 vols. ed. DePauw, Linda Grant, Bickford, Charlene Bangs, Veit, Helen E., and Bowling, Kenneth R. (Baltimore, 1972–1988), 4:1–48Google Scholar.
30. For example, see Debates, ed. Elliot 3:534–39 (James Madison in Virginia convention).
31. For progress on amendments to the Constitution and on the judiciary bill, see Warren, Charles, “New Light on the History of the Federal Judiciary Act of 1789,” Harvard Law Review 37 (November 1923): 49–132CrossRefGoogle Scholar; Goebel, Antecedents and Beginnings to 1801, pp. 430–56 and Chapter 11. (Goebel corrects some errors of Warren.) It should be noted that previous accounts do not emphasize sufficiently Lee's influence on the genesis of the judiciary bill, Ellsworth's efforts to accommodate him, and the political motivations and legal implications of the resulting compromises. Samuel A. Otis to Jonathan Dayton, Apr. 27, 1789, Gratz Collection, Historical Society of Pennsylvania, Philadelphia; Richard Henry Lee to Patrick Henry, May 28, 1789, in The Letters of Richard Henry Lee, 2 vols. ed. Ballagh, James Curtis (New York, 1914), 2:487Google Scholar; Oliver Ellsworth to Oliver Wolcott, Sr., May 30, 1789, Wolcott Family Papers, Connecticut Historical Society, Hartford; William Smith to Edward Rutledge, Aug. 9–15, 1789, in “The Letters of William Loughton Smith to Edward Rutledge,” ed. Rogers, George C., South Carolina Historical Magazine 69 (January 1968): 13–17Google Scholar.
32. For the structure of the federal judiciary, see “An Act to establish the Judicial Courts of the United States,” Sept. 24, 1789, The Public Statutes at Large of the United States, 17 vols. (Boston, 1845–1873), 1:73–75 (§§1–5)Google Scholar.
33. For the jurisdiction of the federal courts, see the Judiciary Act of 1789, Statutes at Large 1:76–81 (§§9–13). For the give and take between federalists and their opponents, see Warren, “New Light on the History of the Federal Judiciary Act of 1789,” pp. 49–132; Goebel, Antecedents and Beginnings to 1801, Chapter 11. For the effect of the $500 minimum, see Casto, William R., “The First Congress's Understanding of Its Authority Over the Federal Courts' Jurisdiction,” Boston College Law Review 26 (September 1985): 1110–14Google Scholar.
34. Brown to Harry Innes, Sept. 28, 1789, Harry Innes Papers, Library of Congress, Washington, D.C. For anti-federalist approval of the Judiciary Act, see Richard Henry Lee to Patrick Henry, Sept. 14, 1789, Patrick Henry Papers, Library of Congress.
35. Trenholme, Ratification of the Federal Constitution in North Carolina, pp. 233–44; Perry, James R., “Supreme Court Appointments, 1789–1801: Criteria, Presidential Style, and the Press of Events,” Journal of the Early Republic 6 (Winter 1987): 379–81Google Scholar; Documentary History of the First Federal Congress, ed. DePauw, Bickford, Veit, and Bowling 6:1552–58.
36. Samuel Johnston to James Iredell, Nov. 20, 1788, and Dec. 1, 1789, Archibald Maclaine to James Iredell, Dec. 22, 1789, in Life and Correspondence of James Iredell, ed. McRee 2:247, 274–75, 276; Robinson, William R. Davie, pp. 419–20; Henderson, Archibald, North Carolina, The Old North State and the New, 5 vols. (Chicago, 1941), 1:410Google Scholar.
37. Statutes at Large 1:81–82.
38. Harison to Morris, Sept. 7, 1790, Richard Harison Letterbook, New-York Historical Society, New York. Morris was not alone in looking to the federal courts for relief from North Carolina justice. John Hay, a North Carolina federalist lawyer and legislator who had brought the charges against the state judges in 1786, wrote to Associate Justice Iredell on Aug. 20, 1790, to ask if he had any knowledge of “the practice in the removal of causes from our State Courts into the federal.” Smith, “Creation of an American State,” pp. 554–55; Hay's letter in Charles E. Johnson Collection, NCDAH.
39. Harison to Morris, Sept. 24, 1790, Richard Harison Letterbook, New-York Historical Society.
40. See Jacob, Giles, A New Law-Dictionary…, corrected and enlarged by Morgan, J. (10th ed., London, 1782)Google Scholar, s.v. “Certiorari”; Story, Joseph, Commentaries on Equity Pleadings, and the Incidents Thereto, According to the Practice of the Courts of Equity of England and America (Boston, 1838), pp. 241–42Google Scholar; Tidd, William, The Practice of the Courts of King's Bench, and Common Pleas…, with additional notes by Fish, Asa I. (4th American ed., Philadelphia, 1856), pp. 397–98 and note A, 404, 412Google Scholar.
41. Jacob, A New Law-Dictionary, s.v. “Certiorari.” Because Morris feared discriminatory treatment by the North Carolina courts, his request for a writ of certiorari certainly satisfied the restriction of Section 14 that any writs granted by the federal courts be “agreeable to the principles and usages of law.” Thus, the question of the propriety of issuing a writ of certiorari rested on two issues of statutory construction. The first issue, under Section 14, was whether the measure of what was “necessary” was to be the broad constitutional grant of diversity jurisdiction or the more narrowly circumscribed statutory grant. The second issue was, even if Section 14 could be construed to allow the writ, whether the more restrictive language of Section 12 would nevertheless deny it.
42. Harison to Morris, Sept. 24, 1790, Richard Harison Letterbook, New-York Historical Society. In this letter, Harison also advised Morris on the procedure for filing the necessary papers with the clerk of the Circuit Court for the district of North Carolina. For Morris's relation to Wilson, see Smith, Charles Page, James Wilson, Founding Father, 1742–1798 (Chapel Hill, 1958), pp. 73, 130–39, 142–61, 202, 305, 382Google Scholar; Robert Morris to Tench Tilghman, Feb. 8, 1785, Robert Morris Collection, New York Public Library, New York; Perry, “Supreme Court Appointments,” pp. 375–76.
43. Harison to Morris, Sept. 24, 1790, Richard Harison Letterbook, New-York Historical Society. Blair apparently was convinced to sign by James Wilson, without much reflection on his action: John Blair to James Wilson, Feb. 2, 1791, Typescript in Konkle Manuscripts, Friends Historical Library of Swarthmore College, Swarthmore, Pennsylvania. Goebel speculated that Wilson and Blair might have signed the writ of certiorari during their time in Charlottesville at the Circuit Court for the district of Virginia in May 1790: Antecedents and Beginnings to 1801, p. 595n. Harison's correspondence with Morris in September 1790 makes clear that Goebel was in error. In addition, the Circuit Court for the district of North Carolina, to which the writ of certiorari was returnable, did not even exist until Congress extended the Judiciary Act to North Carolina on June 4, 1790: Statutes at Large 1:126.
44. State Records of North Carolina, ed. Clark 21:1080–82. With the exception of capitalization and punctuation, this printing of the judges' remonstrance follows the text of a handwritten version—possibly the original—in the session records of the General Assembly (NCDAH). There is only one significant textual difference. The handwritten version states that the Morris case is “now not in its first Stage”; the printed version leaves out the word “not.” A newspaper printing of the remonstrance includes the word “not": Edenton State Gazette of North-Carolina, Nov. 19, 1790. For the federal docket entries, see the Equity and Trial Docket, Circuit Court for the district of North Carolina, RG 21, National Archives and Records Administration [hereafter NARA], East Point, Georgia, entries under November term 1791, June term 1792, November term 1792, and June term 1793. There was no November term 1790 because only Associate Justice Iredell appeared to hold court: James Iredell to Hannah Iredell, Oct. 30, 1790, in Life and Correspondence of James Iredell, ed. McRee 2:299–300, and the Philadelphia Pennsylvania Packet, Dec. 8, 1790, under a Newbern headline of Nov. 11. The entry under November term 1791 states that the case had been left off the June term 1791 docket “by mistake.”
45. State Records of North Carolina, ed. Clark 21:814, 980, 983, 1079–80. A contemporary copy of the cover letter is in the session records of the General Assembly (NCDAH).
46. State Records of North Carolina, ed. Clark 21:865–66, 1054–55, 1082. A contemporary copy of the commendation and the original minority dissent (in John Hay's handwriting) are in the session records of the General Assembly (NCDAH).
47. Gilpatrick, Delbert Harold, Jeffersonian Democracy in North Carolina, 1789–1816 (1931; repr. New York, 1967), pp. 42–52Google Scholar; Robinson, William R. Davie, p. 278; Lycan, “Alexander Hamilton and the North Carolina Federalists,” pp. 449–53; Morrill, James R., The Practice and Politics of Fiat Finance: North Carolina in the Confederation, 1783–1789 (Chapel Hill, 1969), pp. 48–55, 127–31.Google Scholar It should be noted that North Carolina's relations with the national government also had been very stormy during the Confederation period: Trenholme, Ratification of the Federal Constitution in North Carolina, pp. 40–60.
48. Earlier accounts of the issuance of and reaction to the certiorari have been incomplete and sometimes mistaken. Most accounts simply mention the refusal of the certiorari by the judges and the commendation by the General Assembly. See, for example, Moore, John W., History of North Carolina, from the Earliest Discoveries to the Present Time, 2 vols. (Raleigh, 1880), 1:403–4Google Scholar; Boyd, William K., History of North Carolina: The Federal Period, 1783–1860 (1919; repr. Spartanburg, S.C., 1973), pp. 49–50Google Scholar; Ashe, History of North Carolina 2:122; Connor, North Carolina 1:427; Trenholme, Ratification of the Federal Constitution in North Carolina, p. 244; Lefler, Hugh T. and Newsome, Albert R., North Carolina, the History of a Southern State (1954; rev. ed., Chapel Hill, 1963), p. 289.Google Scholar The fullest previous discussions of the certiorari episode are Warren, Charles, The Supreme Court in United States History, 3 vols. (Boston, 1923), 1:63–64Google Scholar; Esterquest, Frank L., “State Adjustments to the Federal Constitution, 1789–1800” (Ph.D. thesis, University of Chicago, 1940), p. 86Google Scholar; Goebel, Antecedents and Beginnings to 1801, pp. 595–96. None of these treatments is very thorough or entirely accurate.
49. This was a partial printing of the judges' remonstrance, which had been published in full in the Edenton State Gazette of North-Carolina on Nov. 19, 1790, the very day that it had been written. A virtually identical full printing appeared also in the Richmond Virginia Gazette, and General Advertiser on June 1, 1791.
50. Hay to Iredell, Dec. 16, 1790, in Life and Correspondence of James Iredell, ed. McRee 2:302–4; Ames to Thomas Dwight, Jan. 6, 1791, in Works of Fisher Ames, 2 vols. ed. Ames, Seth (Boston, 1854), 1:91–92Google Scholar.
51. Typescript in Konkle Manuscripts, Friends Historical Library of Swarthmore College. If Wilson wrote back to Blair, the letter unfortunately has not been found. The subject has not been “tamed” yet. See Amar, Akhil Reed, “A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction,” Boston University Law Review 65 (March 1985): 205–72Google Scholar.
52. For the Virginia certiorari, see Jones v. Syme, Waterman v. Syme, Order Book, 1790–95, pp. 8–9, 48–49, and case papers for the same cases, all in the records of the Circuit Court for the district of Virginia, Virginia State Library, Richmond. Iredell was sitting with Wilson and District Judge Cyrus Griffin that term, but Iredell recused himself just before the cases were called and returned to the bench only after Wilson ruled on them. That no reason was given for the denial of certiorari is confirmed by Richard Hanson to William Jones, May 14 and 30, 1791, copies in “John Tyndale Warre, Exr. of Jones, surv. of Farrell & Jones,” Box 6, T.79, Public Records Office, Kew, Surrey, England; Loose Case Papers, Waterman v. Syme, “Pearkes &c, exrs. of Samuel Waterman,” Box 26, T.79, ibid.
For the Georgia case, see Stead et al. v. Powell, Minute Book, 1790–93, unnumbered pages following p. 28, in the records of the Circuit Court for the district of Georgia, RG 21, NARA, East Point. Iredell had to render a decision alone in this case, because no fellow Supreme Court justice was with him and District Judge Nathaniel Pendleton recused himself. The circuit court minutes surprisingly indicate that Georgia state judge George Walton had granted the petitioners “leave to remove and carry their proceedings into the federal Circuit Court … for trial.” He further guaranteed that a certified copy of the record would be forwarded on application, precisely what the North Carolina Superior Court had refused to do for Morris. The state court records do not reveal why Walton took this action. See Stead et al. v. Powell, Liberty County Superior Court Minutes, 1790–92, p. 28, Georgia State Department of Archives and History, Atlanta, Georgia.
53. Washington et al. v. Huger, in Desaussure, Henry William, Reports of Cases Argued and Determined in the Court of Chancery of the State of South Carolina, 3 vols. (Columbia, S.C., 1817), 1:360, 361–62n.Google Scholar; Equity Register Book: Minutes, 1792–96, pp. 20, 37, 100, 115–16, 133, 188, Court of Equity (Charleston), South Carolina Department of Archives and History, Columbia, South Carolina. A letter indicates that the case had been pending for several years in the state court: Richard Beresford to Jacob Read, Mar. 4, 1786, Jacob Read Papers, South Caroliniana Library, University of South Carolina, Columbia, South Carolina. No mention of the case appears in the surviving records of the federal Circuit Court for the district of South Carolina: RG 21, NARA, East Point.
The only problem with attributing the grant of certiorari in this case to Johnson is that Iredell had informed him about the North Carolina affair in a letter dated Mar. 15, 1792 (Thomas Johnson Papers, C. Burr Artz Public Library, Frederick, Maryland). This should have made Johnson wary of issuing another certiorari.
54. Iredell to John Jay, William Cushing, and James Wilson, Feb. 11, 1791, in Life and Correspondence of James Iredell, ed. McRee 2:322–25; Jay to Iredell, Feb. 12 and Mar. 16, 1791, Charles E. Johnson Collection, NCDAH; Cushing to Iredell, Feb. 13, 1791, Robert Treat Paine Papers, Massachusetts Historical Society, Boston. For Rutledge's resignation and President Washington's search for a successor, see Perry, “Supreme Court Appointments,” pp. 381–83. For the difficulties of circuit-riding and for congressional failure to remedy those difficulties to the satisfaction of the judges, see Holt, Wythe, “‘The Federal Courts Have Enemies in All Who Fear Their Influence on State Objects’: The Failure to Abolish Supreme Court Circuit-Riding in the Judiciary Acts of 1792 and 1793,” Buffalo Law Review 36 (Spring 1987): 310–40Google Scholar.
55. John Sitgreaves to James Iredell, Aug. 2, 1791, in Life and Correspondence of James Iredell, ed. McRee 2:334.
56. Minutes and Equity and Trial Docket, Circuit Court for the District of North Carolina, RG 21, NARA, East Point, entries for November term 1791 (which documents that the case had been left off the June term 1791 docket “by mistake"); Perry, “Supreme Court Appointments,” p. 383; James Iredell to John Jay, Jan. 17, 1792, in Life and Correspondence of James Iredell, ed. McRee 2:337–38. Goebel is mistaken in arguing that the Morris case terminated in the summer of 1791: Antecedents and Beginnings to 1801, p. 596.
57. Life and Correspondence of James Iredell, ed. McRee 2:337–38. By 1792—ten years after Smith's death—no inventory or account of sales had been filed for the estate, and creditors—including heirs in Scotland and a merchant in London—were suing for settlement. Although Iredell was co-executor with Josiah Collins, Iredell did not participate actively in settling the estate. For Iredell's role in the estate, see notation under Allen v. Morris, Trial Docket, 1786–87, Chowan County Court of Pleas and Quarter Sessions, NCDAH, entry under December 1786; and Sproat v. Smith's Executors, Copy of Answer of James Iredell, Charles E. Johnson Collection, NCDAH. For the suits instituted in the Circuit Court, see Smith et al. v. Smith's Executors, Copies of the Bill of Complaint and Subpoena, ibid.; Sproat v. Smith's Executors, Copies of the Bill of Complaint and Pleadings (by Josiah Collins), ibid. Griffith J. McRee conflated the two cases— Smith et al. v. Smith's Executors and Sproat v. Smith's Executors — and confused the resulting hybrid with the certiorari case that generated the controversy in North Carolina: Life and Correspondence of James Iredell, ed. McRee 2:303n. H. G. Connor conflated the certiorari case with Sproat v. Smith's Executors: “James Iredell: Lawyer, Statesman, Judge, 1751–1799,” University of Pennsylvania Law Review 60 (January 1912): 237Google Scholar.
58. James Iredell to John Jay, Feb. 16, 1792, John Jay to James Iredell, Mar. 3, 1792, James Iredell Sr. and Jr. Papers, Duke University; James Iredell to Thomas Johnson, Mar. 15, 1792, Thomas Johnson Papers, C. Burr Artz Public Library; Minutes and Equity and Trial Docket, Circuit Court for the district of North Carolina, RG 21, NARA, East Point, entries for June term 1792.
59. Samuel Johnston to James Iredell, Nov. 13, 1791, in Life and Correspondence of James Iredell, ed. McRee 2:335–36; Charles Johnson to Iredell, in ibid. 2:338; James Iredell to Hannah Iredell, Apr. 25, 1792, in ibid. 2:346; “An Act for altering the times of holding the Circuit Courts, in certain districts of the United States, and for other purposes,” Statutes at Large 1:253.
60. “Supreme Court of the United States—Assignment of Circuits,” Aug. 11, 1792, Office of the Curator, United States Supreme Court, Washington, D.C.; Philadelphia National Gazette, Jan. 5, 1793, article datelined Newbern, Dec. 11, 1792; Minutes and Equity and Trial Docket, Circuit Court for the district of North Carolina, RG 21, NARA, East Point, entries for November term 1792.
61. Equity Minute Docket, 1792–99, entry under Apr. 20, 1793, and a copy of the judgment in Civil Action Papers, Superior Court for the district of Edenton, NCDAH; Execution Docket, 1788–98, Chowan County Court of Common Pleas and Quarter Sessions, NCDAH, entry under June term 1793.
62. Equity and Trial Docket, Circuit Court for the district of North Carolina, RG 21, NARA East Point, entry under June term 1793.
63. Doerflinger, A Vigorous Spirit of Enterprise, pp. 261–73, 279.
64. Dallas, Alexander James, Reports of Cases Ruled and Adjudged in the Several Courts of the United States, and of Pennsylvania, 3 vols. [numbered 2–4] (Philadelphia, 1798–1807), 2:419Google Scholar; Gibbons, John J., “The Eleventh Amendment and State Sovereign Immunity,” Columbia Law Review 83 (December 1983): 1920–39CrossRefGoogle Scholar; Warren, Supreme Court in United States History 1:158–68.