United States Supreme Court First Notice of Bankruptcy – From Vol. 1 American reports? Not!

I am on a curiosity quest to find the very first opinion of the Supreme Court of the United States on the subject of bankruptcy.

Excitement arises, for a moment, on discovering Gibbs versus Gibbs, 1 U.S. 371 (1788). After all, Gibbs versus Gibbs:

  • discusses priority of judicial lien, fraudulent conveyance and “deed of bankruptcy”;
  • appears in volume 1 of United States reports, which publishes all opinions of the United States Supreme Court; and
  • is dated “December term, 1788” (note: The United States Constitution came into effect six months earlier, on June 21, 1788, when New Hampshire became the ninth of thirteen states to ratify it. [Fn. 1]).

However, the excitement turns to disappointment – and confusion – following the following observations:

  • The United States did not enact bankruptcy law after the new Constitution took effect for more than a decade…that’s to say., until the Bankruptcy Act of 1800;
  • The Gibbs versus Gibbs opinions issued by the Court of Common Pleas in Philadelphia County, Pennsylvania, and not by the United States Supreme Court; and
  • The Gibbs versus Gibbs the opinion makes no reference to the US Constitution.

Each of these observations elicits a reaction of the type “What is that? and leads to further research.

Chronology

Here is chronological information for the US Constitution and the US Supreme Court:

  1. The “deed of bankruptcy” in Gibbs versus Gibbs refers to a state bankruptcy law existing under the Articles of Confederation – that state law and the Gibbs versus Gibbs both trials prior to the ratification of the US Constitution;
  2. The Supreme Court of the United States did not even exist in December 1788 – it came into being under the Judiciary Act of 1789, which also divided the United States into 13 judicial districts which were, in turn, organized into three circuits: East, Middle and South. [Fn. 2];
  3. The United States Supreme Court met for the first time thereafter – on February 1, 1790 – in New York City (then the nation’s Capitol), with John Jay as Chief Justice [id.]; and
  4. The justices of the Supreme Court of the United States did not render their first opinion until a year and a half, on August 3, 1791 [id.].

The story of United States reports

Here is information about the United States reports [Fn. 3]:

  • All opinions of the Supreme Court of the United States are published in United States reports;
  • The first volumes of United States reports were originally published privately by individual Supreme Court reporters and referred to by the names of the reporters who compiled them: e.g. Dallas reports, Cranch Reportsetc.;
  • Decisions published in the first volume and most of the second volume of United States reports are not decisions of the Supreme Court of the United States at all – they come from various courts in Pennsylvania, dating from the colonial period and the first decade after independence;
  • Alexander Dallas was a lawyer and journalist who began reporting Pennsylvania’s opinions in what became known as the The Dallas Reports— when the Supreme Court of the United States began to hear cases, Dallas added their opinions to the end of its second volume;
  • After Dallas stopped reporting U.S. Supreme Court opinions, William Cranch took over with Cranch Reportswho was replaced by Henry Wheaton and his Wheaton’s reports;
  • Nearly a century later, the US government created the United States reportswhich incorporated previously reported opinions into its own volumes 1 through 90, beginning with the first two volumes of The Dallas Reports; and
  • Thus, the decisions appearing at the earliest United States reports have dual citation forms – one for the volume number of the United States reports and one for past reports (for example., a full quote would be Gibbs versus Gibbs, 1 US (1 Dall.) 371 (1788); Where McCulloch v. Maryland17 US (4 Wheat.) 316 (1819)).

Conclusion

So . . . my pursuit of curiosity continues for this very first opinion of the Supreme Court of the United States on a subject of bankruptcy.

So far the earliest I have found are two opinions of February 21 and 27, 1805: (i) United States v. Fisher et al., 6 US (2 Cranch) 358 (1805), and (ii) United States vs. Hooe7 US (3 Cranch) 73 (1805)—but I’m still looking

Nevertheless, the information presented above seems interesting and worth sharing.

Janet E. Fishburn