First-Ever Bankruptcy Opinion Of U.S. Supreme Court — From Vol. 1 Of U.S. Reports? Not!

On a quest (photo by Marilyn Swanson)

By: Donald L Swanson

I’m on a curiosity-quest to find the first-ever U.S. Supreme Court opinion on the subject of bankruptcy.

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

  • deals with priority of a judgment lien, a fraudulent transfer, and “an act of bankruptcy”;  
  • appears in Volume 1 of the United States Reports, which publishes all U.S. Supreme Court opinions; and
  • is dated “December Term, 1788” (note: the U.S. Constitution became effective six months earlier—on June 21, 1788—when New Hampshire became the ninth of thirteen states to ratify it [Fn. 1]).

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

  • The United States does not enact a bankruptcy law, after the new Constitution becomes effective, for more than a decade—i.e., until the Bankruptcy Act of 1800;
  • The Gibbs v. Gibbs opinion issues from the Court of Common Pleas of Philadelphia County, Pennsylvania—not from the U.S. Supreme Court; and
  • The Gibbs v. Gibbs opinion makes no reference to the U.S. Constitution.

Each of these observations brings a, “What the heck is that all about,” reaction—and results in further research.

Time Line

Here’s time line information for the U.S. Constitution and the U.S. Supreme Court:

  1. The “act of bankruptcy” in Gibbs v. Gibbs refers to a state bankruptcy law existing under the Articles of Confederation—that state law and the Gibbs v. Gibbs lawsuit both pre-date ratification of the U.S. Constitution;    
  2. The U.S. Supreme Court did not even exist in December of 1788—it came into existence under the Judiciary Act of 1789, which also divided the United States into 13 judicial districts that were, in turn, organized into three circuits: Eastern, Middle and Southern [Fn. 2];
  3. The U.S. Supreme Court first assembled thereafter—on February 1, 1790—in New York City (then the Nation’s Capitol), with John Jay as its Chief Justice [id.]; and
  4. The Justices of the U.S. Supreme Court did not issue their first opinion for another year and a half—on August 3, 1791 [id.].

History of United States Reports

Here’s information about the United States Reports [Fn. 3]:

  • All opinions of the U.S. Supreme Court are published in United States Reports;
  • Early volumes of United States Reports were originally published privately by individual Supreme Court Reporters and designated by the names of the reporters who compiled them: e.g., Dallas’s ReportsCranch’s Reports, etc.;
  • Decisions appearing in the first volume and most of the second volume of United States Reports are not decisions of the United States Supreme Court at all—these are from various Pennsylvania courts, dating from the colonial period and the first decade after Independence;
  • Alexander Dallas was a lawyer and journalist who began reporting the Pennsylvania opinions in what became known as Dallas’s Reports—when the U.S. Supreme Court began hearing cases, Dallas added their opinions to the end of his second volume;
  • After Dallas stopped reporting U.S. Supreme Court opinions, William Cranch took over with Cranch’s Reports, who was succeeded by Henry Wheaton and his Wheaton’s Reports;   
  • Nearly a century later, the U.S. government created the United States Reports, which incorporated the earlier reported opinions as its own volumes 1–90, starting with the first two volumes of Dallas’s Reports; and
  • So, decisions appearing in the earliest United States Reports have dual citation forms—one for the volume number of the United States Reports and one for the prior reports (e.g., a complete citation would be Gibbs v. Gibbs, 1 U.S. (1 Dall.) 371 (1788); or McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).


So . . . my curiosity-quest continues for that first-ever U.S. Supreme Court opinion on a bankruptcy subject. 

Thus far, the earliest I’ve found are two opinions from February 21 and 27 of 1805: (i) United States v. Fisher et al., 6 U.S. (2 Cranch) 358 (1805), and (ii) United States v. Hooe, 7 U.S. (3 Cranch) 73 (1805)—but am still looking

Nevertheless, information set forth above seems interesting and worth sharing.  


Footnote 1.  This information is from “The Day the Constitution was ratified,” published on the website of the National Constitution Center.

Footnote 2.  This information is from “The Court as an Institution,” published on the website of the Supreme Court of the United States.

Footnote 3.  This information is from “United States Reports” published on Wikipedia.

** If you find this article of value, please feel free to share. If you’d like to discuss, let me know.

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