This Month in Legal History: William Cranch

William Cranch was born on July 17, 1769.  He served with distinction on the Circuit Court of the District of Columbia, first as Judge (1801-06) and then Chief Judge (1806-55).[1]  From the bench Cranch had occasion to decide, among many other things, whether John Quincy Adams had been elected President in accordance with the federal constitution, a treason case against Aaron Burr and two of his associates, and how to dispose of two separate cases of criminal assault in which the victim was then-President Andrew Jackson.[2]  But lawyers today recognize Cranch’s name, if at all, as the reporter for the famous U.S. Supreme Court case, Marbury v. Madison, cited as 1 Cranch 137 (1803).[3]

Congress did not establish a salaried government position for reporter of decisions of the United States Supreme Court until 1816.[4]  The earliest reporters of Supreme Court decisions took up the matter on their own initiative.  Alexander J. Dallas was the first, providing reports from 1790 to 1800—but Dallas gave up the work when the Court moved from Philadelphia to Washington, D.C.  Cranch served as the second reporter of Supreme Court decisions and provided reports from 1801 to 1815.

Although the early reports were available for purchase, the endeavor was scarcely remunerative.  It was also arduous.  Not all decisions were prepared in writing; in many instances, the reports depended on notes and briefs provided by the Justices and members of the bar.

Dallas and Cranch each believed the situation in which all decisions of the Court were generally unavailable to the bar and the public needed redress.  Dallas explained in the Preface to his first volume that he regarded the task as an “essential service to his country[.]”  He believed the reports helped to educate students of law and to demonstrate the uniformity of decisions.  He wrote further: “[P]reserving the principles on which the future judgments of our Courts are founded [is] a matter, that, in every point of view…must daily become more interesting and important to the liberty, peace, and property of every citizen.”[5]

Cranch, in the Preface to his first volume, addressed the point more expansively:

Much of that uncertainty of the law, which is so frequently, and perhaps so justly, the subject of complaint in this country, may be attributed to the want of American reports.

Many of the causes, which are the subject of litigation in our courts, arise upon circumstances peculiar to our situation and laws, and little information can be derived from English authorities to lead to a correct decision.

Uniformity, in such cases, can not be expected where the judicial authority is shared among such a vast number of independent tribunals, unless the decisions of the various courts are made known to each other.  Even in the same court, analogy of judgment can not be maintained if its adjudications are suffered to be forgotten….

In a government which is emphatically stiled a government of laws, the least possible range ought to be left for the discretion of the judge.  Whatever tends to render the laws certain, equally tends to limit that discretion; and perhaps nothing conduces more to that object than the publication of reports.  Every case decided is a check upon the judge.  He can not decide a similar case differently, without strong reasons, which, for his own justification, he will wish to make public.  The avenues to corruption are thus obstructed, and the sources of litigation closed.[6]

Cranch’s statement of purpose raises difficult questions.  Among them:  Does publication of judicial decisions promote certainty in the law?  Does it promote uniformity?  Does it limit the discretion of judges to decide issues?  Does it close sources of litigation?

And:  Should the discretion of judges to decide issues and cases be limited?

— Duffy Graham