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1985 Y.B. 35 (1985)
Wheaton v. Peters: The Untold Story of the Early Reporters

handle is hein.journals/jspcth1985 and id is 37 raw text is: 





                         Wheaton v. Peters:

The Untold Story Of The Early Reporters

                                     by Craig Joyce*


                 Introduction
   One cold day in January of 1817, Joseph Story,
himself recently appointed a Justice of the Su-
preme  Court of the United  States, took pen in
hand  to congratulate the  Court's newest  em-
ployee, Reporter of Decisions Henry  Wheaton,
on  the  publication  of the  first volume   of
Wheaton's  Reports. Story wrote:
      I received yesterday your obliging favour accompanied
    with a copy of your reports. I have read the whole volume
    through hastily, but con amore . . . . In my judgment
    there is no more fair or honorable road to permanent fame
    . . [Y]our reports are the very best in manner of any that
    have ever been published in our Country, & I shall be
    surpri[s]ed, if the whole profession do not pay you this
    voluntary homage.

    Happily for Justice Story, his own place in the
history of American law rests on footing substan-
tially more solid than the foregoing prophecy to
Reporter Wheaton.   For little of what the young
Justice so confidently predicted, and the fledgling
Reporter so fondly hoped, has come  to pass. In-
deed, contemporary  observers largely ignored the
vital contribution of Henry Wheaton and the other
early Reporters2 to the Court's institutional life
and ultimate renown; and today that contribution
is almost totally forgotten.
   Wheaton  and his fellow Reporters deserve bet-
ter. In this paper, I hope to accord their memories
at least a small measure of that permanent fame 
that has, to date, so conspicuously eluded them.
My   vehicle is the  Court's  1834 decision  in
Wheaton   v. Peters,3 a contest between  Henry
Wheaton  and his successor in office, Richard Pe-
ters, Jr., over the copyrightability of the Court's
own  opinions. Wheaton is an old case, I grant; but
it is also a great case. In addition to highlighting
the role of the early Reporters in the everyday life
of the Court, it provides an illuminating perspec-
tive on the ascendance of that tribunal to its pres-
ent preeminent position in American law. In this
sesquicentennial year of the Marshall Court, I as-
sure you that few activities will prove nearly as
enlightening - or, I hope, as enjoyable! - as a


Justice Joseph Story praised Henry Wheaton for his first
volume of the Court's reports.

study  of the fascinating but heretofore untold
story that is Wheaton v. Peters.

        I. Antecedents  and Beginnings
   Only forty-six years separate the beginning of
the Chief Justiceship under John Jay in 1789 from
the death of John Marshall in 1835. The transfor-
mation  of the Supreme  Court's role and power
within the American constitutional system during
that period has long been a leading theme in histo-
ries of the Marshall Era.4 But the reasons underly-
ing the progress of the Court from its status as an
almost  faceless onlooker during  the nation's
first decade5 to a position of judicial hegemony
in the federal system by the close of Marshall's
tenure6 have yet to be fully explored. Typically,
commentators   have focused on the doctrinal as-
pects of that development, while paying scant at-
tention to its institutional dimension.
   Two examples  will suffice. Representative of an
earlier day is H. L. Carson's Centennial History
of the Court,  published in  1891. Carson -sum-

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