The Justices of the Supreme Court

ed. by Leon Friedman and Fred L. Israel, vol. 1

"Thomas Johnson", by Herbert Alan Johnson, pp. 95-106

p. 96 "Few men have so conducted their lives to escape historical study better than Thomas Johnson of Maryland."

p. 96 "Indeed, he had served on the committee of the House of Delegates which nearly a decade before had issued instructions to Maryland's representatives at the historic Stamp Act Congress in New York City. Thomas Johnson himself went to the First Continental Congress at Philadelphia's Carpenter's Hall, and there took part in the committee work that was concerned with drafting the petition sent to the king. In 1775 he returned to the Second Continental Congress and was appointed to the sensitive Secret Committee of Correspondence, the group charged with soliciting foreign support for the position of Britain's colonies in North America. It was Thomas Johnson who placed George Washington's name in nomination for the post of commander-in-chief of the armies surrounding Boston. But for the great event which would have marked his name for historic attention, the passage of the resolution for independence and the signature of the Declaration, Thomas Johnson was absent - he had left the congressional session and returned to Annapolis, there to help raise Maryland's quota of militia."

p. 97 "He did not attend the Constitutional Convention, and did not witness the 'miracle at Philadelphia'. Rather he was in retirement at Frederick, Maryland, when the Constitution was taking form. He emerged from his preoccupations with his iron foundry only to take part in the lackluster Maryland ratifying convention the following year."

p. 97 "He demurred at taking the post because of the onerous nature of the circuit duties required of justices. The Judiciary Act of 1789 had provided that the Circuit Courts of the United States were to be composed of two Justices of the Supreme Court and one district judge. ... Because of his age and health, Thomas Johnson doubted the wisdom of accepting the hardships of circuit riding. Chief Justice John Jay assured him that he would be given every possible consideration. President Washington, anxious to have Johnson accept the nomination, belittled his objections and pointed out that steps were even then being taken to set up distinct circuit courts that would relieve the members of the Supreme Court from these duties."

p. 97 "He was commissioned on November 7, 1791, but it was not until August 6, 1792, that he took his place upon the Supreme Court bench."

pp. 97-98 "Yet, as a Circuit Justice he wrote no opinions, and as a Supreme Court Justice, his one reported opinion was a vote with the minority upon a mere procedural point. He resigned from his judicial post after fourteen months upon the Bench, leaving nary a trace of his legal philosophy for future generations."

p. 98 "However, because those deeds of leadership [during the Revolution] were performed at the state rather than national level, he is little known except to students of Maryland history. In the years following the Revolution he had several opportunities to grow to the stature of a national statesman, but in each instance he demurred and resigned before the tasks set before him could be completed. How else can one explain his retirement from the political scene when navigation of the Potomac was within the grasp of commercially minded nationalists?"

p. 98 "George Washington was elected first preident of the Potomac Company at its organization meeting in May of 1785; Thomas Johnson was elected a director of the corporation. He later succeeded to the presidency of the company when Washington was elected President of the United States."

pp. 98-99 "It is reported that when Johnson arrived at General Washington's camp with militia reinforcements in January of 1777, he was challenged by a sentinel guarding the commander's tent. Splattered with mud from the march, and diminutive of stature, Johnson looked anything but a brigadier general of militia. The guard told him that the general was occupied and had given orders that he was not to be disturbed. After Johnson's explosion of words, the man reported to General Washington that there was a filthy red-headed little man who demanded to see him and that the general's orders could be damned but he intended to see him. The Commander-in-Chief exclaimed, 'Oh! It is Johnson of Maryland! Admit him at once!'"

p. 99 "He was not elected to a fourth term, because he was forbidden byb the constitution of Maryland to succeed himself. However, in 1789, he was again offered the governor's chair, but at that time declined to serve."

p. 99 "During the formative years of Maryland state government, Johnson was called upon by the House of Delegates to serve upon the committee which prepared legislation conferring jurisdiction upon the state court of admiralty. This was a difficult task without precedent in American legislation, and Johnson's assignment is some indication of the value which the house attached to his legal training and ability. Immediately prior to Johnson's appointment to the Supreme Court of the United States he had served Maryland as Chief Judge of her General Court, an important post which required extensive legal ability in the execution of the court's function of appellate review of common law judgments in the lower courts."

p. 99 "Although Thomas Johnson had substantially retired from politics during the so called Critical Period from 1783 to 1789, he was selected to serve as a judge in the territorial dispute between Massachusetts and New York. ... Johnson's service on the court provided an interesting link between the old Confederation government's boundary adjustment courts and their successor, the Supreme Court of the United States."

p. 100 "... he did gain important positions when the general's [Washington's] opinions would either be ignored or given little weight."

p. 100 "Trained in youth as a scrivener in the office of the Clerk of the Maryland Provincial Court, he worked his way to a place at the bar of colonial Maryland. From the writing desk of the clerk's office, he moved to another writing desk in the private law office of Stephen Bordley of Annapolis. There his duties were more closely related to actual practice, and we may judge from the fact that Bordley also trained William Paca, that some attention was paid to the learned aspects of the profession. Nevertheless the task of a law clerk was an arduous one, based upon assiduous attention to form books and the monotonous details of practice."

p. 100 "In 1760 Johnson was admitted to the bar at the relatively advanced age of twenty-seven. While he had spent many a busy day and night preparing himself for admission, he nevertheless found time to notice Ann Jennings, the daughter of his first employer, Thomas Jennings, who was clerk of the Maryland Provincial Court. By 1766 Johnson had achieved sufficient success at the practice of law that he could propose marriage to Miss Jennings, and they were married in that year. In the twenty-eight years of their marriage, the Johnsons had eight children, five girls and three boys, of whom all but one daughter survived infancy. Mrs. Johnson died in 1794, shortly after her husband had retired as commissioner to plan the national capital. Thereafter he did not accept another public office, and his principal public interest seems to have been to encourage the building of a suitable memorial to his friend, George Washington."

p. 100 appointment to the Maryland General Court on April 20, 1790 "In many ways service on the highest common law court in a state was the best place to study and decide the knotty problems of federal constitutional law that arose after 1789." - no federal precedents for state courts

p. 101 3 reported decisions of Johnson as Chief Judge bear upon clash between Maryland and federal law - commerce clause, contract clause, vested rights, and supremacy of federal treaties

p. 101 Johnson did not write opinions in any of these cases - Maryland v. Sluby (1790): consider the validity of a Maryland tariff that antedated the Constitution. "The question was whether the tariff was rendered void by the consitutional provision, or whether it would continue in effect until the federal Congress acted under the commerce power bestowed on it by the new Constitution." - decided that Congress would need to take it down - "In effect this early Maryland case represents an enunciation of what would ultimately become the theory of concurrent federal and state power concerning interstate commerce; or, to phrase the matter differently, Maryland here held that the Congress of the United States did not have exclusive power over interstate commerce, but that it would have to 'occupy the field' before state legislation would be invalidated."

p. 101 Donaldson v. Harvey (1790) - about debts incurred before and after ratification

p. 102 "Taken together, Maryland v. Stuby and Donaldson v. Harvey raised in a microcosm the much larger issues of federal constitutional law that were to be the primary concern of the Supreme Court of the United States for five decades to come. Thomas Johnson was fortunate to be a member of the court that first met these questions, and one wonders what would have been the impact of this experience upon the decisions of Thomas Johnson as Associate Justice had he remained on the Court. There is a certain aspect of 'dual sovereignty' in these cases, and Maryland even at this early date seems to have been tending in the direction that was to be taken by one of her most eminent sons upon the Court, then a young friend of Thomas Johnson, namned Roger Brooke Taney."

p. 102 Dulany v. Wells (1790) - "In this instance Johnson must have contributed much to the conference discussion of this case, for his legislative experience in the 1780 session of the House of Delegates made him an expert on the history of the sequestration statute passed by Maryland for the seizure of British property within the state. An ardent patriot, Johnson had fought unsuccessfully for the inclusion of a provision that would have enumerated commercial debts among the types of property to be seized by the state of Maryland." - in this case, court awarded recovery to the British creditor

p. 103 Virginia Circuit Court, 1792 - Johnson's only recorded opinion - British debt case that arose under the Georgia sequestration act of 1782 - p. 104 "Johnson, supported by Justice William Cushing, felt that the state of Georgia was not entitled to an injunction because her remedy at law was adequate. The four other Supreme Court Justices were inclined to grant the injunction and voted accordingly."

p. 104 jury returned a verdict for the original creditor

p. 104 "It was only with strong misgivings that Johnson had accepted his appointment to the Supreme Court, and the assurances of Jay and Washington had partially removed his reluctance on the basis of circuit duties. Riding the circuit had been a continual source of complaint by the Supreme Court Justices, yet Congress did not act to relieve this condition. As a junior member of the Court, Johnson found himself assigned to the far-flung Southern Circuit." he wanted the Justices to rotate, they said no. p. 105 "It seems safe to conclude that Thomas Johnson was outmaneuvered by Jay and the other Justices with greater seniority. Finally, abandoning hope of legislative relief from circuit duties, he resigned from the Court on January 16, 1793."

p. 105 Johnson was present at laying of the cornerstone in Sept. 1793 of Capitol

p. 105 he resigned as commissioner in Sept. 1794 "Johnson, always the entrepreneur, purchased several lots along Rock Creek and then haggled over the price after he resigned from the commission."

p. 105 August 1795 - Johnson offered Secretary of State

Selected Bibliography -
Edward S. Delaplaine, The Life of Thomas Johnson.
Virginia State Library at Richmond (circuit court records)
Supreme Court of the U.S. at National Archives
scattered papers in Washington Papers at National Archives
C. Burr Artz Library, Frederick

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