Documentary Editing and the Jay Court: Opening New Lines of Inquiry Ene Sirvet and R.B. Bernstein For too long, Americans have thought that the history of the Supreme Court of the United States began with John Marshall. Even many lawyers, legal scholars, and historians, though aware that three Chief Justices preceded Mar shall, have dismissed their tenures as insignifi cant at best, failures at worst. Evaluating the Supreme Court that was by reference to the pow erful appellate tribunal that is wrongly gauges a Chief Justice’s success by two rules of thumb: did the Court under that ChiefJustice hand down important constitutional decisions that have be come bulwarks of modem American constitu tional law? Was that ChiefJustice a leading force in promulgating such decisions? Using the modem understanding of the Su preme Court as a measure to evaluate earlier Courts obscures how, by a process neither unop posed nor foreordained, the Court became the center of gravity of American constitutionalism. Moreover, focusing the historiography ofthe fed eral courts on the Supreme Court scants the vi tal role played in the development of American law by the lower federal bench, whether trial or appellate. The Promise of Documentary Editing One factor obscuring the early Court was the difficulty of access to historical evidence. Until recently, most primary sources for the early Court were unpublished, scattered in repositories around the nation, and difficult to use for any one lacking historical background and legal training. Lawyers of that era used a complex legal jargon that can baffle unprepared research ers. For example, studying the federal circuit courts requires a grasp of such subjects as the common law writ system and federal jurisdic tion. Knowing the difference between a suit “in trespass” and one “in trespass on the case” is key to analyzing the kinds of lawsuits that these courts heard; knowing the rules of federal juris diction reveals whether cases were properly brought before the courts and lays bare patterns of interstate litigation and the economic trans actions behind such suits. Now the “documentary editing revolution,” hailed by historian William W. Freehling as the most important development in modem Ameri 18 JOHN JAY can historiography,' has embraced the federal courts. Not only is John Marshall the focus of one ofthe most distinguished documentary edit ing projects, The Papers of John Marshall— two other projects examine the pre-Marshall fed eral judiciary: The Documentary History of the Supreme Court ofthe United States, 17891800 and The Papers of John Jay. A documentary history portrays the growth of an institution or process of government, trac ing the development ofcollegial relations among its members and its processes of collective deci sion-making. A documentary editing project keyed to an individual complements institutional documentary histories by presenting the institution’s development through that person’s eyes—especially when, like Jay or Marshall, he is the institution’s leader. A Chief Justice over sees and speaks for the Supreme Court and the federal judiciary; he monitors the administration of the federal bench, the courts’ ability to fulfill their constitutional and statutory duties, and the judiciary’s place in the public mind. Focusing on the first Chief Justice offers a unique view ofthe federal courts’ early develop ment. This is the goal ofthe last volume of The Papers ofJohn Jay: ChiefJustice and Feder alist Statesman, 1789-1829, which will exam ine Jay as the Court’s ChiefJustice and as one of six circuit judges. It will assess the burdens he faced while riding circuit and while presiding over the Court, leading his colleagues in defin ing the Court’s role in an evolving constitutional system. It will describe the number and kinds of cases that Jay heard, and it will trace patterns of federal litigation. It will analyze how Jay and his colleagues grappled with the problem of extrajudicial activities and responsibilities— those imposed by Congress (as in the 1792 stat ute asking the Justices to hear RevolutionaryWar veterans’ pension claims) and those sought by President George Washington and his adminis tration (such as his 1793 request for an advisory opinion from the Court, discussed in the follow ing article, and his 1794 naming of Jay as Min...