Inquiry -- how about William Marbury and friends?

Finkelman, Paul <paul.finkelman@albanylaw.edu> Paul.Finkelman at albanylaw.edu
Sat Feb 6 15:31:38 PST 2010


Justices of the Peace are certainly "judges."  They were certainly even more like modern judges in the 19th century.  Under the extradition act of 1793 a justice of the peace had the power to send someone out of the state as a fugitive slave. Those in DC were "federal" judges.  In some places JP's are lawerys; in others they are not.  I believe in NYState county judges (which to confuse the rest of the world are called Supreme Court Justices) have not always been lawyers.  I think in the 19th century there were lots of minor judges who were not lawyers.  But I do not understand why a judge of the  "mayor's court" (there was one in NYC) would not be a judge.

The highest court in NY in the 1820s and 1830s contained every member of the New York State Senate; many of whom would not have have been judges.


*************************************************
Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208

518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu<mailto:paul.finkelman at albanylaw.edu>
www.paulfinkelman.com<http://www.paulfinkelman.com/>
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________________________________
From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Aynes,Richard L [rlaynes at uakron.edu]
Sent: Saturday, February 06, 2010 6:23 PM
To: Paul Finkelman; Bezanson, Randall P; Conlawprof at lists.ucla.edu
Subject: RE: Inquiry -- how about William Marbury and friends?

Well, I think we generally do think about Marbury being appointed to “a federal judgeship”, but a closer look indicates that Act in question created Justices of the Peace for the District of Columbia. This was the commission Marbury was seeking, not that of a Judge.

Traditionally, a Justice of the Peace was not a lawyer.  For example, in the case of Justice Samuel Miller (previously mentioned), he was a Justice of the Peace in Kentucky before he admitted to the bar.  Maybe no other state has this, but this was rather analogous to  Ohio’s Mayor’s Courts, where the Mayor of a City can hold court on certain minor matters (largely traffic offenses now) without being a lawyer.

Richard Aynes
U. of Akron

From: Paul Finkelman [mailto:paul.finkelman at yahoo.com]
Sent: Saturday, February 06, 2010 4:30 PM
To: Aynes,Richard L; Bezanson, Randall P; Conlawprof at lists.ucla.edu
Subject: Re: Inquiry -- how about William Marbury and friends?

William Marbury was appointed to a federal judgeship but of course never served.  He was not a lawyer.  Some of the others appointed with him were also non-lawyers, and they did get their commissions.  I guess maybe the original question was meant to be about Art. III judges, but who knows.

I suspect the place to look for non-lawyers would be in the federal territories as well.

The question also raises the issue of what constitutes a "lawyer."   I assume "passed the bar" is the text. (so for example, James Madison was NOT a lawyer even though he had  as good a legal education as many lawyers).

----
Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
518-445-3386 (p)
518-445-3363 (f)

paul.finkelman at albanylaw.edu

www.paulfinkelman.com<http://www.paulfinkelman.com>


________________________________





-----Original Message-----
From: On Behalf Of Ilya Somin
Sent: Friday, February 05, 2010 2:15 PM
To: Robert Bradley
Cc: conlawprof at lists.ucla.edu<mailto:conlawprof at lists.ucla.edu>
Subject: Inquiry

I was wondering if anyone on the list happens to know whether there has ever been a federal judge who was not a lawyer.

Thanks!

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu<mailto:isomin at gmu.edu>
Website: http://mason.gmu.edu/~isomin/<http://mason.gmu.edu/%7Eisomin/>
SSRN Page: http://ssrn.com/author=333339



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