1996 Day, Root and Kirby
| Pages | 407 |
| Publication year | 2021 |
70 CBJ 407. 1996 DAY, ROOT and KIRBY
I recently finished a project I started in 1975 to read, or at least look at, every reported decision of the Connecticut courts, I started with the current reports and finished with 1 Kirby (yes, there is a 2 Kirby). My initial motivation for this seemingly masochistic project was to uncover lost procedural rulings for the Practice Book Annotated volumes. Many such rulings are only offhand remarks, often in footnotes, that are not picked up in the headnotes. Once the author leaves the bench, the procedural rulings are often forgotten.
As the project moved backward, strange things happened. As I started reaching the decisions of justices I neither knew personally nor had heard about from older members of the Bar, these justices I did not know started to become old friends. After reading, say, volume 100 of the Connecticut Reports from beginning to end, it was easy to see who were the scholars and who were the lightweights, who wrote well and who did not, who were likeable and who were not, who were hard workers, who were practical, who were stubborn, who had what philosophical or political persuasions, and who dissented a lot or not at all.
Another strange thing that happened from reading the volumes in inverse order was that I became aware that I was slowly learning what is almost a foreign language. Each volume's language became a bit more archaic, but, by going back one volume at a time, the earliest volumes became much easier to read. A third thing that happened was that, the earlier I got, the less homogenized the opinions became. Colorful and highly quotable language became more common as the opinions receded in time. Finally, I was surprised to find a large number of substantive as well as procedural decisions that had been overlooked by the digesters and headnoters. A long-forgotten constitutional decision from 1786 (seventeen years before Marbury v. Madison(fn1)) I resurrect today.
Because the very earliest reports are the most interesting and the freshest on my mind, I have decided to write on what I
found in the volumes from the beginning until 1818, when our first modern constitution was adopted. Although the title "Day, Root and Kirby" has a nice ring to it, in fact the cases up to 1818 take us through 2 Conn
"Day" refers to Day's Reports, five volumes covering 180213; "Root" refers to Root's Reports, two volumes mostly covering 1789-98; "Kirby' refers to Kirby's Reports, one official and one quasi-official volume covering 1785-1789.(fn2) Except for two cases cited in footnotes in 1 Day,(fn3) no reported decisions of any Connecticut court exist for 1799-1801. A few reported decisions may be found in the beginning of I Root for 1764-88.
The names of the volumes refer to the three reporters who compiled the decisions. Ephraim Kirby was a private lawyer who apparently compiled decisions on his own and then was prevailed upon to publish them. The five Superior Court Judges at the time certified that this compilation was accurate. Judge Root was a Superior Court judge all during the time of his compilation. He also apparently compiled them on his own. Thomas Day was a private lawyer admitted to the Bar in 1799. He started unofficially reporting on the oral arguments and the decisions of the Supreme Court in 1805, although his first volume contains cases back to 1802. He continued doing that until 1814, when he was appointed the official Reporter of judicial Decisions. I Conn. starts with the arguments and decisions in 1814.
Many lawyers writing an appellate brief hesitate longer before citing a 1996 decision from the Connecticut Supplement than they do before citing a 1796 decision from Root. They assume Day, Root and Kirby contain the early decisions of the Supreme Court. That assumption is accurate as to Day, for practically all his reports concern the proceedings in the Supreme Court. The assumption is not accurate as to Kirby and Root, for mostly they reported on the decisions of the Superior Court.
The situation is actually somewhat more complex, because most of the Superior Court decisions reported in Kirby and Root are appellate decisions from inferior tribunals. The Superior Court was created in 1711. Until 1800, there were five Superior
Court judges, and they traveled around the state sitting en banc both as a trial court and as an appellate tribunal. These en banc Superior Court decisions comprise the bulk of Kirby and Root. From 1800 to 1808, there were six Superior Court judges who sat as the Superior Court in panels of three. Except for a few panel decisions from 1806 to 1807 in the back of 3 Day these decisions do not survive
Until 1784, a litigant who was dissatisfied with a Superior Court decision could appeal to the General Assembly.(fn4) In 1784, the Supreme Court (called the Supreme Court of Errors until 1965) was created to handle most of the General Assembly's final appellate jurisdiction, although the General Assembly retained theoretical and, in at least three cases, actual, final appellate jurisdiction until 1818.(fn5)
In 1785 the legislature passed a statute requiring Superior Court judges to state their opinions in writing. This statute made possible Kirby's Reports, which, when issued in 1789, constituted the first reports ever of an American court.
From 1784 until 1808, the Supreme Court consisted of all twelve members of the upper branch of the General Assembly (called the Council), plus the Lieutenant Governor and, starting in 1793, the Governor. Many of the councilors were lawyers practicing in the Superior Court. In at least one case, two of them recused themselves and argued on opposite sides before their own court.(fn6) The lawyers and politicians left the Supreme Court for good in 1807. Starting in 1808, the Supreme Court consisted of the nine members (after 1818 the five members) of the Superior Court sitting en banc. This lasted until 1855, when separate judges were appointed for the Supreme Court and the Superior Court.
Until 1810, the Supreme Court generally did not issue a written opinion unless it reversed the Superior Court.(fn7) In Kirby, for example, of the many reported Superior Court decisions, twelve are followed by a one-line affirmance by the Supreme
Court. Kirby and Root reported primarily on the decisions of the Superior Court, and so the one-line affirmances by the Supreme Court do not stand out. Because Day reported almost exclusively on the Supreme Court, the one-liners stand out vividly in the pre-1810 volumes (1-3 Day). These early Day volumes are valuable mostly for the extensive reporting of the oral arguments of counsel.(fn8) Beware of that when you read those volumes: often has a law clerk excitedly brought me a "decision" from Day that is squarely on point, only to be told that the decision is the argument of the losing counsel.
Kirby makes good reading. On the first page, one notes the presence of Roger Sherman, Esq., and Oliver Ellsworth, Esq., as two of the five Superior Court judges throughout the period covered by this volume (February 1786 to March 1788). Because of their presence, along with that of Chief judge Richard Law (later the first federal...
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