A moot court exercise: debating judicial review prior to Marbury v. Madison.

• Author: Melhorn, Donald F., Jr.

On August 31, 1797, student members of the Moot Court Society at Tapping Reeve's law school in Litchfield, Connecticut suspended a rule requiring issues for argument to be put in hypothetical cases, to permit their debating in the abstract a question which especially interested them: Have the judiciary a right to declare laws, which are unconstitutional, void? This moot court proceeding provides a rare pre-Marbury record of an actual argument and decision about what has come to be called the power of judicial review.(2) This article is the means of first publication of that record.

Judicial review was a debatable but not yet widely debated constitutional question in 1797. How it was that American law students came to it then, as an issue for moot court argument, presents an intriguing inquiry for study in the history of early American legal education. As developed here, that inquiry will extend to the Litchfield Law School, its curriculum and methods of instruction, the practice in its Moot Court, the student advocates who appeared in this case, and possible extracurricular sources of their interest in the issue they debated.

1. THE LAW SCHOOL AND ITS MOOT COURT

   Tapping Reeve had lived in Litchfield since his admission to the Connecticut bar in 1772.(3) For a time, like other lawyers, he taught students who apprenticed in his office; one of his first pupils was his brother-in-law, Aaron Burr.(4) The transformation of that office teaching practice into a law school may be dated either from 1782, when Reeve began developing what would become a highly structured, fifteen month course of lectures, or from 1784, when he constructed a small classroom building next to his home to accommodate a growing number of students.(5) Over the ensuing five decades of its operation the school would enjoy a national reputation and following. Reeve's appointment in 1798 as judge of the Superior Court(6) prompted his taking James Gould into partnership, and they divided the lecture curriculum.(7) In 1820 Gould succeeded as sole proprietor,(8) and he ran the school until 1833 when his illness and rapidly declining attendance forced its closing.(9) For its time, the program at Litchfield was "the best professional instruction available in the United States."(10) A remarkably great number of the school's alumni had distinguished public careers.(11)

   The Litchfield students took extensive notes of the lectures, which they later transcribed "in a more neat and legible hand"(12) into bound notebooks comprising as many as five volumes, which they took with them for use in their practices. Passed down as heirlooms, the Litchfield student notebooks are a rich, though surprisingly neglected source for the early history of American legal education. More than fifty sets are now preserved.(13) The earliest are notes made by Eliphalet Dyer in 1790.(14) With the next set, taken in 1794 by Asa Bacon,(15) the general scheme of topical organization which the Litchfield lectures were to have for the duration of the school's existence is clearly seen. From then coverage is continuous, with intervals between sets seldom exceeding three or four years.(16)

   The lecture notes reflect development of study routines. Asa Bacon's 1794 notebooks, as well as all of the notebooks by the end of the century, contain marginal citations to the books, mostly English works, in Reeve's library. After mornings in the lecture hall, the students spent the remainder of the school day examining the authorities cited in support of the several rules, and in reading the most approved authors upon those branches of the Law, which are at the time the subject of the lectures."(17) Use of Reeve's library was subject to strict rules, which prohibited borrowing of all but a few "privileged" works.(18)

   Besides lecture attendance, reading, and notebook writing, moot court exercises were a significant component of the learning experience throughout the school's existence. Eventually the Litchfield Moot Court would come to operate in the same way as other such tribunals, then and nowadays, with hypothetical cases put by faculty sponsors and argued by students, appearing as opposing counsel before professors or other members of the legal profession, sitting as judges. The moot court George Wythe founded as an adjunct to his law lectures at William and Mary was run on those lines: "Mr. Wythe the other professors sit as Judges, Our Audience consists of the most respectable of the Citizens, before whom we [students] plead Causes given out by Mr. Wythe."(19) But for a time which included at least the years 1796 through 1798, arguments at Litchfield were conducted quite differently.

   Modelled after undergraduate debating societies at Yale College,(20) from which many of its members had graduated, the Litchfield Moot Court was entirely student run, with students serving as judges(21) as well as counsel, and choosing for themselves the questions they would argue. In December, 1796, they adopted a constitution which provided for wide sharing of leadership functions, with officers elected for terms of only four weeks.(22) At arguments held every Thursday evening the president and two other members appointed in rotation would sit as judges, and members in alphabetical order would take turns as counsel.(23) The Moot Court clerk, an elected officer, had the important duty of report[ing] such cases as shall be brought before the Society, with the decisions thereon and the grounds of those decisions."(24) The reports which survive are found in two copybooks, entitled, respectively, "Reports of Cases Disputed and Determined in Mr. Reeve's Office, from 8th December, 1796 to July 28th, 1797," and "Continuation of Reports of Cases Argued and Determined in Moothall Society from August 5th 1797 to July 12, 1798."(25) Each report begins with a statement of the case and ends with a summary of the judges' opinions, delivered seriatim from the bench, with a lengthy middle portion consisting of apparently complete transcripts of arguments of counsel, probably copied from drafts written out in advance.(26) Reeve did not routinely attend the arguments, but his subsequent comments were sometimes noted.

   Issues for argument were chosen by agreement of the counsel assigned for each session, and framed with "writs, pleadings, etc. in the same manner as a suit or the like Question would be bro't before a regular Court."(27) Confident of their ability to articulate theory and policy, student advocates often put questions of first impression, and cases which explored sources of law in the new republic, and limits of judicial power.(28) The imaginativeness and sophistication of these choices were also products of college debate experience, notably in required academic exercises at Yale, where "[d]isputations were the keystone of [Yale president Ezra] Stile's curriculum"(29) and many of the topics upon which he challenged his students to deliberate were matters of current political and constitutional significance.30 And at Litchfield, of course, the Moot Court rule requiring adversaries to agree on issues they would argue discouraged selection of any with pat answers. Indeed the issue for the 4 first argument reported on, held the night the Moot Hall Society's constitution was adopted, still has no definite answer in American commercial law:

   A sells a horse to B that has a secret disorder affirms

   him to be sound to B. B before he discovers the disorder sells

   him to C; in the hands of C the horse dies. Can C have an

   action directly against A?(31)

2. THE STUDENT ADVOCATES

   By the time judicial review was argued on Thursday evening, August 31, 1797, the Moot Court Society constitution's provision for alphabetical order in members' taking turns as counsel was not being followed strictly. But nothing in the Moot Court record suggests any departure from the practice of allowing counsel for each session to choose the question they would argue. They put the question of judicial review as a debate proposition, to be argued in the abstract: "Have the judiciary a right to declare laws, which are unconstitutional, void?" This avoided the two-issue argument that a hypothetical case concerning a particular law's claimed unconstitutionality would have presented.(32)

   The students who chose judicial review as an argument topic were three of the Moot Court's ablest advocates: Stephen Twining for the affirmative side and George Tod and Thomas Scott Williams for the negative. All were from Connecticut; all were Yale graduates. Twining and Tod had been presidents, respectively, of the college's two debating societies(33), and as fellow members of its chapter of Phi Beta Kappa(34) they had participated in that organization's extensive program of forensic activities.(35) Twining, a former schoolmaster, was 30 at the time of the argument, 28 when he graduated from Yale. Tod, six years younger, had been president of the Moot Court Society when the constitution was adopted. Williams was the youngest: 17 when he graduated from Yale, in 1794, a year ahead of Twining and Tod. He was an exceptionally brilliant law student: Reeve would later call him "the best scholar ever sent out from Litchfield."(36)

3. THE LITCHFIELD LECTURE CURRICULUM: A MYSTERIOUS DISAPPEARANCE

   Reeve's lectures began with an introduction to law and the legal process(37) taken directly from the first chapter of Sir William Blackstone's Commentaries.(38) In the third section of that chapter, "Of the laws of England," Blackstone laid down ten enumerated "rules to be observed with regard to the construction of statutes."(39) The tenth rule, which received a great deal of attention in America, was his pronouncement on Bonham's Case.(40) In that decision, rendered nearly two centuries before, Sir Edward Coke had proclaimed the subordination of statutory enactments to fundamental tenets of the common law, and had claimed for courts the power to enforce that subordination: [W]hen...