Law.com this week published my article, Get Your Free Case Law on the Web. No sooner did it appear than I received an e-mail from a reader questioning how several of the sites discussed in the article could claim to have U.S. Supreme Court cases from before there was a Supreme Court. In fact, they claimed to have Supreme Court cases dating back to 1754 — even before the American Revolution.
I’ll admit, I felt like an idiot for not questioning this myself when I wrote the article. And when I e-mailed several of these sites to put the question to them, I heard back from only one, and the person who responded was not immediately sure of the answer.
Hoping to find the answer for myself, I first turned to one of the sites, Public.Resource.Org, to see this supposed 1754 Supreme Court case. I went to its Supreme Court library and made my way to Volume 1, Page 1 of the U.S. Reports. Sure enough, it is from September 1754. But while it is from a supreme court, it is not the Supreme Court. Rather, it is the Supreme Court of Pennsylvania.
None of the decisions appearing in the first volume and most of the second volume of United States Reports are actually decisions of the United States Supreme Court. Instead, they are decisions from various Pennsylvania courts, dating from the colonial period and the first decade after Independence. Alexander Dallas, a Philadelphia, Pennsylvania lawyer and journalist, had been in the business of reporting these cases for newspapers and periodicals. He subsequently began compiling his case reports in a bound volume, which he called “Reports of cases ruled and adjudged in the courts of Pennsylvania, before and since the Revolution”. This would come to be known as the first volume of “Dallas Reports.”
When the United States Supreme Court, along with the rest of the new Federal Government, moved in 1791 to the nation’s temporary capital in Philadelphia, Dallas was appointed the Supreme Court’s first unofficial and unpaid Supreme Court Reporter. (Court reporters in that age received no salary, but were expected to profit from the publication and sale of their compiled decisions.) Dallas continued to collect and publish Pennsylvania decisions in a second volume of his Reports, and when the Supreme Court began hearing cases, he added those cases to his reports, starting towards the end of the second volume, “2 Dallas Reports,” with West v. Barnes (1791). Dallas would go on to publish a total of 4 volumes of decisions during his tenure as Reporter.
When the Supreme Court moved to Washington, D.C. in 1800, Dallas remained in Philadelphia, and William Cranch took over as unofficial reporter of decisions. In 1817 Congress made the Reporter of Decisions an official, salaried position, although the publication of the Reports remained a private enterprise for the reporter’s personal gain. The reports themselves were the subject of an early copyright case, Wheaton v. Peters, in which former reporter Henry Wheaton sued then-current reporter Richard Peters for reprinting cases from “Wheaton’s Reports” in abridged form.
In 1874, the U.S. government began to fund the reports’ publication, creating the United States Reports. The earlier private reports were retroactively numbered volumes 1-90 of the U.S. Reports, starting from the first volume of Dallas Reports. As a result, decisions appearing in these early reports have dual citation forms; one for the volume number of the United States Reports, and one for the set of nominate reports. For example, the complete citation to McCulloch v. Maryland is 17 U.S. (4 Wheat.) 316 (1819).
Maybe I learned that back in the first year of law school. If so, I’ve long since forgotten. Now I know and this time, I doubt I’ll forget. But what we do know is that when these sites claim to have Supreme Court cases back to 1754, what they mean is that they have the full series of U.S. Reports.