University of Virginia Library

8224. SUPREME COURT, Individual opinions.—[continued].

There is a subject respecting
the practice of the Court of which
you are a member which has long weighed
on my mind. * * * It is the habitual mode
of making up and delivering the opinions. You
know that from the earliest ages of the English
law, from the date of the Year-Books,
at least, to the end of the Second George,
the judges of England, in all but self-evident
cases, delivered their opinions seriatim, with
the reasons and authorities which governed

their decisions. If they sometimes consulted
together, and gave a general opinion, it was so
rarely as not to excite either alarm or notice.
Besides the light which their separate arguments
threw on the subject, and the instruction
communicated by their several modes of
reasoning, it showed whether the judges were
unanimous or divided, and gave accordingly
more or less weight to the judgment as a
precedent. It sometimes happened, too, that
when there were three opinions against one,
the reasoning of the one was so much the
most cogent as to become afterwards the law
of the land. When Lord Mansfield came to
the bench he introduced the habit of caucusing
opinions. The judges met at their chambers,
or elsewhere, secluded from the presence
of the public, and made up what was to be
delivered as the opinion of the court. On
the retirement of Mansfield, Lord Kenyon
put an end to the practice, and the judges
returned to that of seriatim opinions, and
practice it habitually to this day I believe.
I am not acquainted with the late Reporters,
do not possess them, and state the fact from
the information of others. To come now to
ourselves, I know nothing of what is done in
other States, but in this [Virginia] our great
and good Mr. Pendleton was, after the Revolution,
placed at the head of the Court of
Appeals. He adored Lord Mansfield, and
considered him as the greatest luminary of
law that any age had ever produced, and he
introduced into the court over which he presided,
Mansfield's practice of making up opinions
in secret, and delivering them as the
oracle of the court, in mass. Judge Roane,
when he came to that bench, broke up the
practice, refused to hatch judgments, in conclave,
or to let others deliver opinions for
him. At what time the seriatim opinions
ceased in the Supreme Court of the United
States, I am not informed. They continued
I know to the end of the 3d Dallas in 1800,
later than which I have no Reporter of that
court. About that time the present Chief-Justice
[Marshall] came to the bench.
Whether he carried the practice of Mr. Pendleton
to it, or who, or when I do not know;
but I understand from others it is now the
habit of the Court, and I suppose it is true
from the cases sometimes reported in the
newspapers, and others which I casually see,
wherein I observed that the opinions were
uniformly prepared in private. Some of
these cases, too, have been of such importance,
of such difficulty, and the decisions
so grating to a portion of the public as to
have merited the fullest explanation from
every judge, seriatim, of the reasons which
had produced such convictions on his mind.
It was interesting to the public to know
whether these decisions were really unanimous,
or might not perhaps be of four against
three, and, consequently, prevailing by the preponderance
of one voice only. The Judges,
holding their offices for life, are under two
responsibilities only. 1. Impeachment. 2. Individual
reputation. But this practice completely
withdraws them from both. For no
body knows what opinion any individual
member gave in any case, nor even that he
who delivers the opinion, concurred in it himself.
Be the opinion, therefore, ever so impeachable,
having been done in the dark, it
can be proved on no one. As to the second
guarantee, personal reputation, it is shielded
completely. The practice is certainly convenient
for the lazy, the modest and the incompetent.
It saves them the trouble of developing
their opinion methodically and even
of making up an opinion at all. That of
seriatim argument shows whether every judge
has taken the trouble of understanding the
case, of investigating it minutely, and of
forming an opinion for himself, instead of
pinning it on another's sleeve. It would
certainly be right to abandon this practice
in order to give to our citizens one
and all, that confidence in their judges which
must be so desirable to the judges themselves,
and so important to the cement of the Union.
During the administration of General Washington,
and while E. Randolph was Attorney
General, he was required by Congress to
digest the judiciary laws into a single one,
with such amendments as might be thought
proper. He prepared a section requiring the
judges to give their opinions seriatim, in
writing to be recorded in a distinct volume.
Other business prevented this bill from being
taken up, and it passed off; but such a
volume would have been the best possible
book of reports, and the better as unincumbered
with the hired sophisms and perversions
of counsel.—
To William Johnson. Ford ed., x, 223.
(M. Oct. 1822)