Philip Pendleton Barbour was the purest Old Republican ever to reach the Court: a Virginia planter-lawyer who fought the Missouri restriction, the tariff, and internal improvements; Speaker of the House from 1821 to 1823 — the only Speaker ever to become a justice; president of Virginia's storied 1829–30 constitutional convention after Monroe stepped aside; then a federal district judge whom Jackson elevated. The Senate confirmed him on March 15, 1836, the same day it confirmed Taney (§24) as Chief Justice — the Marshall era ended twice in one afternoon.
Barbour had time for one major opinion, and it announced the new order. New York v. Miln (1837) upheld a state's demand that shipmasters report their arriving passengers as an exercise of ordinary police power — 'persons are not the subject of commerce,' he wrote — the first crack in Marshall's (§13) commerce edifice, later repudiated in the Passenger Cases and Henderson v. New York. In Holmes v. Jennison he stood with the wing that would have left fugitive surrender to the states. On the morning of February 25, 1841, in the middle of the Amistad arguments, Barbour was found dead in his bed of a heart attack; Story (§18), no ideological ally, delivered a warm eulogy. Daniel (§28), a Virginian of the same creed, took the seat.
New York v. Miln
1837Holding · New York could require masters of arriving ships to report their passengers: a police-power regulation of persons, not a regulation of commerce.
Role · Barbour wrote for the Court.
The Taney Court's opening statement on state power — 'persons are not the subject of commerce' — later repudiated by the Passenger Cases (1849) and Henderson v. New York (1876).
Read the opinion →Philip Pendleton Barbour in Jacksonian America: An Old Republican in King Andrew's Court (University of Alabama Press, 2016) by William S. Belko — a justice who waited 175 years for a biography and then got a serious one. Really a life of the Old Republican persuasion itself, with Barbour as its purest congressional exemplar: the only person ever to be both Speaker of the House and a Supreme Court justice.
The Bookshelf
Strict construction, states' rights, hostility to banks, tariffs, and internal improvements — the creed itself, carried by the Speaker who fought the Missouri Compromise restrictions, presided over Virginia's 1829–30 convention, and was Jackson's deliberate choice to plant the doctrine in Duvall's chair. Particularly good on the five-year judicial career that had time for only one major opinion. The definitive account, and likely to remain so. University of Alabama Press.
The Virginia counterpart to Sandra Day O'Connor's Georgia survey on the Wayne page: a sitting justice — Powell, himself a Virginian — taking the measure of his state's contributions to the Court, Barbour among them. Doubly interesting as a document of how the modern Court remembers a states'-rights predecessor whose constitutional world it long ago dismantled. As the FJC's bibliography lists it.
The one major opinion of a five-year tenure, and a consequential one: upholding New York's power to require reports on arriving ship passengers, Barbour announced the state police power in sweeping terms — persons, he wrote, were not articles of commerce — with language broad enough that colleagues grumbled it exceeded what conference had agreed. Part of the 1837 trilogy (with Charles River Bridge and Briscoe) that announced the Taney Court's new direction. Free online.
The compact reference account: the Speakership, the 1829–30 convention presidency (in the presence of Madison, Monroe, and Marshall), the district bench, and the brief justiceship. Honest that Barbour mattered more to Jacksonian constitutionalism before the Court than on it.
The group study's fifth appearance on this site — Barbour was the fifth of Jackson's six, and the most ideologically deliberate: where McLean was patronage management and Baldwin a campaign debt, Barbour was doctrine, planted. With Taney in the center chair and Barbour in Duvall's seat, the March 1836 confirmations completed Jackson's remaking of Marshall's Court. Covenant Books.
The frame for the Court Barbour barely got to join: the 1837 term's transformation, the trilogy's meaning, and his death's strange scene — the Amistad arguments suspended, the eulogies, and the seat passing to a fellow Virginian, Peter Daniel. Macmillan.
The Reading Path
A researched route through the literature — in order.
- 1.Belko — for the definitive life — the Old Republican creed with Barbour as its purest exemplar
- 2.Miln itself — for the one major opinion and its long, dark echo
- 3.The Friedman & Israel chapter — for the compact account of Speaker, convention president, and judge
- 4.Powell — for Virginia's justices measured by one of their successors
- 5.Jacobsen — for the Jackson six, completed in doctrine
- 6.Swisher — for the 1837 transformation and the death that suspended the Amistad
Where the Papers Are Kept
The papers survive as family archives rather than judicial ones — Barbour correspondence and legal documents spanning 1741–1930, as the FJC lists them. Barboursville itself burned in 1884; its Jefferson-designed ruins are now the centerpiece of a Virginia winery — as close as the site comes to a physical monument for either brother. Visit →
Online Resources
Ideas for Further Research
- The second same-day pair: Barbour and Taney were confirmed together on March 15, 1836 (cf. Duvall and Story, November 18, 1811) — and like the first pair, a study in asymmetry: the center chair and twenty-eight years for one, Duvall's seat and five years for the other.
- The Amistad thread reaches its fourth justice, morbidly: Barbour died in his sleep the night of February 24–25, 1841, in the middle of the arguments — Thompson presided on circuit, Story wrote the opinion, Baldwin dissented unpublished, and Barbour did not live to vote. The Court convened the next morning and adjourned.
- Only person ever to be both Speaker of the House and a Supreme Court justice; second district judge elevated (after Trimble). The brothers-opposed theme — James the Clay nationalist and cabinet secretary, Philip the Old Republican — is a Path-tab natural if Barbour ever gets flagship treatment.