Judiciary Act of 1789

Wythe W. Holt, Jr.

When the First Congress gathered in the spring of 1789, eleven of the thirteen states had recently agreed to the Constitution. Although the Constitution provided important details for the legislative and executive branches, it did not flesh out the judicial branch of the new national government. For example, no one knew whether there would be any federal courts other than the "one Supreme Court" mandated by the Constitution, or how many judges would sit on the Supreme Court, or what sorts of jurisdiction any lower federal court might have. So, one of the First Congress's first and most important duties was to establish the federal judiciary. After a summer of heavy debate, the Judiciary Act of 1789 (1 Stat. 73) was signed into law in September.

THE POWER OF THE NATIONAL GOVERNMENT

The Framers of the Constitution, and even more so the citizens of the United States, were sharply divided on the issue of federalism. Debate raged as to how much power should be delegated by the previously independent states to the newly centralized national government—which, because of that centralized power was threatening to the powers and privileges of the states.

Federalists, including most of the Framers, wanted to increase the power of the central government, while "anti-Federalists" either desired no such increase or were afraid that the Constitution increased national power too much.

The issue of federal power versus states' power extended to the idea of a national judiciary. Under the loose alliance established by the Articles of Confederation, there had been no national court structure. Some saw no need for a national court system even in 1787 to 1789, when the Constitution was drafted, debated, and adopted, arguing that the existing state courts would be good enough. Some thought that only a few federal judges would be needed to deal with issues such as the interpretation of the Constitution, controversies between states, cases involving the official representatives of other nations, and perhaps admiralty cases concerning commerce on the high seas. Others thought that national courts should essentially replace the state courts, at least for much important litigation over debts, contracts, and commerce.

THE PROBLEM OF DEBTS

At the Constitutional Convention in 1787, the Framers were seriously upset at many actions taken by the state legislatures and courts during the six years since England had surrendered at Yorktown. Most of the offending actions concerned debts, since state courts were the usual debt collection agency for creditors (people to whom a debt is owed). The 1780s were depression years, as the Revolution had drained off to Europe all of the hard money (coin) in circulation in the former colonies. Paper money was manufactured to fill the gap, but its worth generally declined rapidly. Bad crop years in the middle of the decade made times even tougher, for most Americans were farmers. States also increased taxes to pay off their own war debts. The common people and many in the elites found that they could not pay their debts, especially millions of dollars owed to British merchants since before the Revolution broke out. Many people thought that winning the war with England meant these debts were canceled, and many were so angry at British depredations throughout eight bloody years of war that repaying them seemed out of the question in any case.

State courts were flooded with debt cases, and sympathetic or frightened judges ruled according to the prevailing winds of Democratic public opinion. Juries openly forgave debts. The people demanded relief in the forms of paper money, debt moratoria, tax relief, and the closing of courts. Legislatures obliged in many states, by making other things besides "gold and silver Coin a Tender in Payment of Debts" and otherwise passing "Law[s] impairing the Obligation of Contracts" (to quote two prohibitions placed on the states in article I, section 10 of the 1787 Constitution), as well as delaying taxes due. When legislatures or courts balked or matters got worse, popular antidebt protests or marches occurred in at least eight states from 1785 to 1787. In five states these protests temporarily closed some courts, Shays' Rebellion in Massachusetts in 1786–1787 being only the largest and longest of them.

The "British debts," or the prewar debts that Americans owed to British merchants, proved even more difficult to deal with. Six states closed their courts to British creditors. Every state enacted some legislation suspending, lowering, or otherwise impairing (that is, making less collectible) these debts, and most allowed juries to deduct interest accrued during wartime. Owing to British pressure, the 1783 Peace Treaty provided that "Creditors ... shall meet with no lawful Impediment to the Recovery of the full value in Sterling Money of all bona fide debts heretofore contracted." But, faced with debtor upset and the popular hatred of "British debts," state legislatures continued to enact legislation against those debts. Courts and juries from New York to Georgia, especially those below the Mason-Dixon line, where more than 80 percent of such debts rested, continued to refuse to enforce them.

THE CONSTITUTIONAL CONVENTION

Popular debtor representatives by and large refused the seats offered to them at the Constitutional Convention, so that it was dominated by those who favored creditors interests and wealthy planters. Such Framers continually expressed outrage against debtor interests and against the state courts that enforced them. James Madison asked bluntly, "What was to be done after improper Verdicts in State tribunals obtained under the biased directions of a dependent Judge, or the local prejudices of an undirected jury?" But even many convention delegates opposed a system of lower federal courts, and it was clear that popular opposition to national courts would be great. Because of this controversy and opposition, the article of the Constitution concerning the judiciary was short and vague.

The Constitution specified only a Supreme Court, allowing Congress to decide whether to create other courts and how many judges would sit on each. It gave the Supreme Court jurisdiction over:

• • Suits involving foreign citizens
• • Suits between citizens of two states
• • All suits arising under the Constitution, the laws of Congress, and treaties
• • Cases in equity (in which jurors did not sit)
• • Appellate jurisdiction over questions of fact (enabling the Supreme Court to override jury verdicts on appeal)
• • All admiralty cases and instances involving the United States as a party

These provisions, though broadly stated, seemed to sweep into federal court all the troublesome debt issues. While the Supreme Court was given trial jurisdiction over suits between states and suits involving the public ministers of other nations, and appellate jurisdiction over all others, Congress could make "exceptions" and "regulations." Some terms were even vaguer. No one knew, for example, what constituted a suit "arising under" the Constitution or a treaty.

When the newly drafted Constitution was disclosed, it was met by raging anti-Federalist opposition. The judiciary provisions in particular provoked much antagonism. To many, the broad and vague jurisdictional language undermined the state courts, especially in instances of debt. The fight over adoption was fierce, and the Constitution was barely accepted in such large key states as Massachusetts, Virginia, and New York. It apparently passed in Pennsylvania and New Hampshire only because of political shenanigans, and North Carolina and Rhode Island at first rejected it outright. Some anti-Federalist opponents were elected to the First Congress. With so much controversy, Congress, facing the crucial issue of the judiciary, would have to find a compromise.

CONGRESSIONAL COMPROMISE: A THREE-TIERED FEDERAL COURT

Thanks to the wise leadership of Senator Oliver Ellsworth of Connecticut, the Judiciary Act of 1789 put forth a compromise plan that established a strong national judiciary (though there were some surprises). Ellsworth developed an acceptable structure for the judicial branch that, with three major exceptions, has endured to the present day.

Contrary to those who wished for a minimal judicial presence, the act established three tiers of federal courts: the Supreme Court, district courts, and circuit courts:

The Supreme Court was to sit at the place of government, primarily as an appeals court, and was staffed by a Chief Justice and five associates.

Single-judge district courts were placed in each state. These courts, with trial jurisdiction over admiralty, revenue collection, and petty crimes, had very little to do with the matters that divided Federalists and anti-Federalists, and they established a localized, nonconfrontational presence of the national government.

Circuit courts would sit twice a year in each of the states and would handle most of the trials in matters of contention between the Federalists and anti-Federalists: debt cases involving British creditors, suits between citizens of different states, and important criminal trials. Supposedly to cut costs, but more likely to enable judges of national reputation to handle the tough issues of the day, the circuit courts were staffed with two Supreme Court judges, plus the local district judge.

To calm the opposition, the Judiciary Act gave trial jurisdiction over suits arising under the Constitution, federal laws, and treaties to state courts. Decisions could be appealed to the Supreme Court only when the ruling was against the national interest. Over the strong objection of Great Britain, only debt cases worth more than 500 dollars (at the time a large sum) could be brought to federal court. The Supreme Court was prevented from overturning facts found by juries.

State legislation in favor of creditors was quickly overturned. Nevertheless, no great anti-Federalist explosion occurred over the judiciary structure as set up by the act. Prosperity returned, helping to calm the populace, and continuing upset over British debt cases was finally settled diplomatically. After about a century, with anti-Federalist fears long forgotten, later acts made some changes to the judiciary: they established federal trial jurisdiction over federal questions, stopped the practice of Supreme Court justices ceased serving in circuit courts, and made circuit courts exclusively appellate. Otherwise, the Judiciary Act of 1789 is with us still.

See also: Judiciary Act of 1801.

BIBLIOGRAPHY

Holt, Wythe. "'To Establish Justice': Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts." Duke Law Journal 1421 (1989): 1421–1531.

Ritz, Wilfrid J. Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence. Norman: University of Oklahoma Press, 1990.

Warren, Charles. "New Light on the History of the Federal Judiciary Act of 1789." 37 Harvard Law Review (1923) 49–132.

Articles of Confederation

In June 1776, while Thomas Jefferson worked with a committee to draft the Declaration of Independence, a second committee developed the nation's first constitution. Called the Articles of Confederation, this document took five years to complete and be ratified, as arguments arose over how much power should be delegated to the central government, whether small states should have the same vote as large states, and whether the western lands should be controlled by the collective or by states on the western border. The finished document established a weak central government, with each state retaining its independence and sovereignty. States maintained authority over taxation, raising troops, and regulating trade, while Congress, the lawmaking body of the central government, was responsible for foreign affairs, Indian affairs, war, coining money, and maintaining a postal service. Because Congress had no authority to raise money or troops, the system depended on the cooperation of the states to provide funds and, as necessary, soldiers, and by 1786 there was widespread agreement that the arrangement was not effective. The following year a convention met in Philadelphia to develop the U.S. Constitution, which replaced the Articles of Confederation in 1789.

Shays's Rebellion

After the Revolutionary War, the United States suffered from an economic depression and the almost complete collapse of paper currency, which made it difficult, if not impossible, for farmers to pay their debts. In addition, state governments imposed high taxes to pay for the war. As farmers began to lose their farms because of debt, unrest spread. The most significant revolt was led by Revolutionary War veteran Daniel Shays, who rallied farmers in West ern Massachusetts to forcibly shut down courts to prevent foreclosures. The rebellion was crushed in January 1787, but was an influence on those who elected to abandon the Articles of Confederation in favor of a stronger federal government under the Constitution, which was adopted in 1789. Reformers sought both to prevent such rebellions and to establish an economy strong enough that they would not occur. The new federal government assumed the states' war debts, which they paid off with the proceeds from land sales in the West.

Judiciary Act of 1801

L. A. Powe, Jr.

The Judiciary Act of 1801 (2 Stat. 69), an act "for the more convenient organization of Courts of the United States," cured major defects in the federal judicial system. It ended the practice of Supreme Court justices sitting as circuit judges, which had been established under the Judiciary Act of 1789. This practice had created two separate problems. First, a justice would sit on appeal at the Supreme Court to hear a case he had already decided as a circuit court judge. Second, justices found it a huge burden to "ride" the circuit, literally traveling from one court to another, often on bad roads and in inclement weather. Riding circuit caused some to avoid serving on the Court. To replace the Supreme Court justices as circuit judges, the act created sixteen new judgeships to fill the courts. Finally, it expanded the jurisdiction of the federal courts by giving them, for the first time, power to decide all cases involving federal questions.

The problems with the federal courts were well known by 1801, and legislative action to correct them had been debated since 1798. President John Adams greeted the Sixth Congress when it convened in December 1799 with a call for a judicial bill. Yet just twelve months after the Judiciary Act of 1801 passed, it was repealed by the Judiciary Act of 1802 (known as the Repeal Act).

PARTY POLITICS AND THE JUDICIARY

What made a meritorious, largely uncontroversial bill so objectionable that it was quickly repealed? Timing. Had the Judiciary Act of 1801 been passed either twelve months earlier or twelve months later, it would have been safe. But the statute was passed at a time when the effects of two-party politics—at that time, the Federalists and the Republicans—had become clear. Neither party trusted the other. The Federalists had controlled the executive and legislative branches up till 1800, and they had appointed only Federalist judges. The presidential election of 1800 was about to deliver a Republican, Thomas Jefferson, into the White House for the first time, as well as a Republican majority to Congress. The election, however, was still being settled in the House of Representatives. The Federalists were considering placing Aaron Burr, Jefferson's Republican vice-presidential running mate, in the presidency instead of Jefferson, and Jefferson and his followers were furious.

If the presidential stalemate was not sufficient to make the Republicans believe the Federalists were trying to steal the government, Chief Justice Oliver Ellsworth offered another reason. After the Federalist defeat in the November 1800 elections became clear, Ellsworth retired so that President Adams would be able to nominate a Federalist to replace him before the Republicans took over. After John Jay turned the post down, in large part because of circuit riding, Adams selected his secretary of state, John Marshall, for the post.

The Judiciary Act passed the House on January 20, 1801, by a partisan 51–43 margin. It passed the Senate, without amendments, on February 11 by a 16–11 vote. Adams signed the Judiciary Act into law on February 13, with less than three weeks remaining in his presidency. Four days later the House deadlock on who would be president was broken, and Jefferson was selected.

Jefferson initially believed the Federalist Congress would not pass the Judiciary Act, because the appointment of judges to the new judgeships created by the act would be made by Republicans, who were about to take control of the government. Then Jefferson realized that the Federalists were pushing the bill with the intent of filling the new positions with their own judges before he took office. He was correct. Adams quickly nominated sixteen Federalists, and the Senate confirmed them all.

The politician and diplomat Gouverneur Morris observed that the Federalists were "about to experience a heavy gale of adverse wind; can they be blamed for casting many anchors to hold their ship through the storm?" Jefferson's answer was yes. On the eve of the inauguration James Monroe, then governor of Virginia and later to become president, wrote to Jefferson, noting that the Federalist "party has retired into the judiciary, in a strong body where it lives on the treasury, & therefore cannot be starved out. While in possession of that ground it can check the popular current which runs against them, & seize the favorable occasion to promote reaction." In other words, the Federalists had made a power grab by means of the judiciary. Thus Jefferson made repeal of the Judiciary Act his first legislative priority. When the Congress finally convened in December 1801, Jefferson sent a message "urging reconsideration of the [February] 1801 legislation." He privately wrote that "lopping off the parasitical plant engrafted at the last session on the judicial body" was necessary because "from that battery all the works of Republicanism are to be beaten down and erased."

CONSTITUTIONAL ISSUES

In the congressional debates and in the partisan press, Federalists claimed that repeal of the Judiciary Act was unconstitutional, because the Constitution provided for judges' life tenure (dependent on good behavior). They claimed that repeal was an attack on the independence of the judiciary. Republicans responded that the power to create includes the power to abolish. And since the Constitution provides only for salaries "during their Continuance in Office," stripping them of the office would end the need for payment.

The Repeal Act of 1802 barely passed the Senate but was solidly supported in the House. The votes, 16–15 and 59–32, reflected the party makeup in the new Seventh Congress. The National Intelligencer, a Republican publication, exulted: "Judges created for political purposes, and for the worst of purposes under a republican government, for the purpose of opposing the national will, from this day cease to exist." An editorial in the Federalist press lamented the repeal, fearing the worst: "The fatal bill has passed and our Constitution is no more."

Federalists believed that now only the judiciary could save the country from the Republicans, and many were anxious for the constitutional fight. Some Republicans, too, relished a fight, which they believed the unpopular Federalist party could not hope to win. Federalists had frequently warned that the Supreme Court would declare the Repeal Act unconstitutional, but they were wrong. In the case Stuart v. Laird, the Court wrote a three-paragraph opinion that sustained the Repeal Act (although it did not mention it by name) by deciding the case according to its terms. The Court held that circuit riding by Supreme Court justices was so established as to be beyond question and that removing a case from a court created by the 1801 act (and abolished by the Repeal Act) to a court existing under the Judiciary Act of 1789 gave the latter jurisdiction.

Stuart was decided just one week after the famous case Marbury v. Madison and is barely known today. Yet Stuart underscores the genius of Justice Marshall's reasoning in Marbury. In Marbury Marshall's ruling protected and asserted judicial power while simultaneously avoiding a direct challenge to Jefferson. Marbury concerned the ability of the judiciary to order the executive to do something. If the Court had issued an order to James Madison, then secretary of state, to deliver Marbury's commission that entitled him to a position as a justice of the peace, Madison would have refused and the Court would have looked and been impotent because its order would not have been obeyed. The same would have been true in Stuart if the Court had held the Repeal Act unconstitutional. The sixteen judges would have been entitled to their payment, and the Treasury would not have paid them. At this stage in the young republic, executive decisions to ignore judicial rulings could have been fatal to the development of an independent judiciary.

The Court avoided a fight with Jefferson in Marbury by concluding that Congress could not add to the Supreme Court's original jurisdiction. By contrast, Stuart was an attack on the independence of the judiciary, and the constitutional issue was whether life-tenured judges could lose their jobs via the expedient of abolishing their courts. At a glance, the Repeal Act seems more clearly unconstitutional than the provision that added to the original jurisdiction of the Court. But unlike Marbury, Stuart did not hold a statute unconstitutional because that was a fight it could not win. That, too, reflects Marshall's genius.

See also: Judiciary Act of 1789.

BIBLIOGRAPHY

Simon, James F. What Kind of Nation. New York: Simon and Schuster, 2002.

Smith, Jean Edward. John Marshall. New York: Henry Holt and Company, 1996.

Repeal Act of March 8, 1802

Sec. 1. That the act of Congress passed on the thirteenth day of February one thousand eight hundred and one, intituled [sic] "An act to provide for the more convenient organization of the courts of the United States" ... shall be, and is hereby repealed. Sec. 3. That all the acts, and parts of acts, which were in force before the passage of the aforesaid act, and which by the same were either amended, explained, altered, or repealed, shall be, and hereby are ... revived, and in as full and complete force and operation, as if the said act had never been made.

Marbury v. Madison

Marbury v. Madison (1803) was the first case in which the Supreme Court asserted its authority to decide whether a law passed by Congress is constitutional. Before Thomas Jefferson assumed the presidency in 1801, his predecessor, John Adams, hurried to stock public offices with members of his own Federalist party. He appointed his secretary of state, John Marshall, to the position of Chief Justice of the Supreme Court; he also appointed forty-two new justices of the peace, including William Marbury. The commissions for the latter offices were signed by Marshall in his capacity as secretary of state; however, they were not all delivered by the time Jefferson took office on March 4th, and Jefferson directed his own secretary of state, James Madison, to con sider them invalid. Marbury petitioned the Supreme Court to order Madison to deliver his commission. The Court's opin ion was written by Chief Justice Marshall, who found that Marbury was indeed entitled to his commission. However, he maintained, the Court did not have the right to issue such an order. While the Judiciary Act of 1789 included provisions granting the Court that right, the act was in conflict with the Constitution, which stipulated that unless a state was a party to the case, the Supreme Court had only appellate jurisdiction—in other words, Marbury would have to take his case to a federal district court, and appeal to the Supreme Court only if he lost. In finding the Judiciary Act of 1789 invalid, Marshall established the principle of judicial review, whereby the Supreme Court could overturn congres sional legislation that was in conflict with the Constitution.

JUDICIARY ACT OF 1789

The Judiciary Act of 1789 established the lower federal courts. Under Article III, Section 1, of the U.S. Constitution, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In the Judiciary Act, the first Congress created federal trial courts and federal appeals courts to comply with this provision.

The first Congress engaged in considerable debate over the Judiciary Act. This was not surprising: the Constitutional Convention, which had ended a year and a half earlier, had revealed a deep division between Federalists and Anti-Federalists. Federalists promoted federal powers to protect against local bias and ensure federal supremacy. Anti-Federalists opposed a strong federal government and preferred to leave as much power as possible to the states. Although the debate over the Judiciary Act was not conducted entirely by Federalists and Anti-Federalists, these groups represented the opposing viewpoints.

Many concessions were made to Anti-Federalists in the Constitution. However, the ratification of the Constitution was a victory for Federalists because it created the potential for considerable federal powers. The bill for the Judiciary Act—the first bill to be considered in the first Congress—provided another opportunity for Anti-Federalists to present their arguments against strong federal powers.

On April 7, 1789, the Senate ordered itself to create a committee to draft a bill organizing a federal judiciary. By the end of May, a committee led by oliver ellsworth, of Connecticut, william paterson, of New Jersey, and Caleb Strong, of Massachusetts, had devised a detailed, complex proposal. The committee envisioned a small, unintrusive federal judiciary with exacting jurisdictional requirements. This meant that a case would have to have certain characteristics before it could be heard by a federal court. Remembering criticisms made by the Anti-Federalists at the Constitutional Convention, the committee was careful to avoid giving the federal courts too much authority.

Despite the restrictions on jurisdiction, Anti-Federalists opposed the bill on the grounds that a federal judiciary in any form would deprive states of the right to exercise their own judicial powers. They argued that state courts were more than capable of deciding federal issues. Furthermore, the provision in Article III, Section 1, of the Constitution did not require Congress to create lower federal courts: it merely suggested that Congress do so.

The Anti-Federalists, led by Richard Henry Lee and William Grayson, both of Virginia, submitted amendments to limit the scope of the act. Samuel Livermore, a congressman from New Hampshire and an Anti-Federalist, moved the House to limit the jurisdiction of inferior federal courts to questions of admiralty. Lee did the same in the Senate. Another proposal consisted of creating no lower federal courts and expanding the jurisdiction of the Supreme Court. All the amendments were voted down. Senator William Maclay, of Pennsylvania, wrote in his diary, "I opposed this bill from the beginning…. The constitution is meant to swallow all the state constitutions, by degrees; and this to swallow, by degrees, all the State judiciaries" (Clinton 1986, 1531).

The Federalists, led by james madison, of Virginia, insisted that a reasonable reading of Article III, Section 1, required Congress to establish lower federal courts. According to the Federalists, federal courts were necessary to ensure the supremacy of federal law. The supremacy of federal law over state law had, after all, been established in Article VI of the Constitution, which stated, in part, that "[t]his Constitution, and the Laws of the United States … shall be the supreme Law of the Land."

The Federalists argued further that federal courts provided a venue that would be less susceptible to bias than that of state courts. The Federalists declared that several types of cases were appropriate only in federal court, including cases involving disputes between states; aliens, or noncitizens; and crimes against the United States.

Under the proposed act, federal juries would comprise persons from all over the region, decreasing the potential for the jury bias that can exist in closely knit state courts. Also, federal judges would have no allegiance to any particular state because they would have judicial responsibility for several states at once, and thus would be less prone to bias than were state judges.

Eventually, the Federalists won enough support to pass the act. The House approved the bill submitted by the Senate without a recorded vote, and President george washington signed the act into law on September 24, 1789.

The act established two sets of federal courts to operate below the U.S. Supreme Court. On one level, the act created thirteen federal districts. Each of these districts contained a federal trial court that had jurisdiction over minor criminal cases, admiralty and maritime cases, and civil actions on federal matters.

On another level, the act created three federal circuit courts. The circuit courts were given trial court jurisdiction over serious criminal cases and three categories of civil cases: cases where the United States was a plaintiff; cases where at least one of the parties was alien to the United States; and cases between parties of different states, or "diversity" cases, if the amount at issue exceeded $500. Circuit court jurisdiction over diversity cases was made concurrent with state court jurisdiction. This meant that a federal trial was not mandatory, and a plaintiff could sue in either a state or federal court. Also, if a defendant from another state was being sued in state court for more than $500, she or he could have the case moved to the federal circuit court.

Each of the circuit courts comprised a federal district court judge and two Supreme Court justices. This composition was a concession to Anti-Federalists. The general idea was that requiring Supreme Court Justices to sit on circuit courts, or "ride circuit," would force them to keep in touch with local concerns. Theoretically, this would prevent the development of the elite judicial aristocracy feared by the Anti-Federalists.

The Judiciary Act also identified the precise jurisdiction of the Supreme Court: The Supreme Court could hear appeals from the federal district and circuit courts. The Supreme Court could also hear appeals from state courts in cases involving federal treaties or statutes, state statutes that were repugnant to the federal Constitution or to federal laws or treaties, and the interpretation of any clause of the Constitution or of federal laws or treaties. In any case, the decision of a state court would be reviewed by the Supreme Court only if it was against federal interests.

The act gave the Supreme Court trial court jurisdiction over controversies between two or more states and between a state and citizens of another state. The Supreme Court was also given trial court jurisdiction to hear cases against ambassadors, public ministers, and consuls or their domestics, with the adjunct that district courts could also hear cases against consuls or vice consuls. (Consuls and vice consuls were government officers living in another country and responsible for the promotion of U.S. business in that country).

The Judiciary Act fixed the number of justices on the U.S. Supreme Court at six. As the nation grew in size, new circuits were added to the original three, and justices were added to the court along with the circuits. By 1863, the number of justices on the Supreme Court had grown to ten. In 1866, Congress reduced the number of justices to seven. In 1869, the figure was set at nine, where it has remained.

In many sections of the act, federal trial court jurisdiction was made concurrent with state court jurisdiction. This meant that federal courts did not have exclusive jurisdiction over many matters involving federal law. One notable exception was that the federal courts were given exclusive jurisdiction to hear cases involving prosecution for the violation of federal criminal laws.

The Judiciary Act did not provide for federal question jurisdiction. That is, it did not grant federal courts broad authority to hear all cases that arose under the Constitution or federal law. This may have been because no federal laws were on the books at the time the act was established. Whether intentionally or owing to a lack of foresight, Congress chose to identify in the first Judiciary Act the specific cases that could be heard in federal court. Congress did pass a statute authorizing federal question jurisdiction in 1875. However, to this day, Congress usually grants federal court jurisdiction over new laws in a separate statute or clause.

The creators of the Judiciary Act understood it to be a work-in-progress. On the night before its final passage, Madison, an ardent proponent of the act, wrote that it was "defective both in its general structure, and many of its particular regulations" (Clinton 1986, 1539).

The structure of the federal judiciary has changed dramatically since the passage of the first Judiciary Act. The federal judiciary is now more streamlined. The federal district courts handle all federal trials. The circuit courts are now called U.S. courts of appeals, and they are exclusively appeals courts: they no longer have trial court jurisdiction over any cases. Supreme Court justices no longer have to ride circuit. Despite these changes, the Judiciary Act's idea of creating two levels of federal courts beneath the Supreme Court has remained intact.

The act's concern with establishing limits to federal court jurisdiction now seems quaint. In the more than two centuries since the passage of the act, statutes passed by Congress and decisions issued by the Supreme Court concerning the jurisdiction of federal courts have effectively expanded the reach of federal courts. Federal courts have also increased in number: there are now eleven federal circuits, each containing an appeals court and several federal district courts.

further readings

Bourguignon, Henry J. 1995. "The Federal Key to the Judiciary Act of 1789." South Carolina Law Review 46.

Clinton, Robert N. 1986. "A Mandatory View of Federal Court Jurisdiction: Early Implementation of and Departures from the Constitutional Plan." Columbia Law Review 86.

Freedman, Eric M. 2000. "Just Because John Marshall Said It, Doesn't Make It So: Ex parte Bollman and the Illusory Prohibition on the Federal Writ of Habeas Corpus for State Prisoners in the Judiciary Act of 1789." Alabama Law Review 51 (winter): 531–602.

Low, Peter W., and John C. Jeffries, Jr. 1994. Federal Courts and the Law of Federal-State Relations. 3d ed. Westbury, N.Y.: Foundation Press.

Pfander, James E. 2001. "Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Powers." Columbia Law Review 101 (November): 1515–612

Wells, Michael L., and Edward J. Larson. 1995. "Original Intent and Article III." Tulane Law Review 70.

cross-references

Diversity of Citizenship; Supreme Court of the United States.

JUDICIARY ACT OF 1789

JUDICIARY ACT OF 1789. While the framers of the U.S. Constitution agreed upon the division of the federal government into three branches, the delegates disagreed over whether the Constitution should create inferior federal courts. In the end, the Constitution left the issue open, and the construction of Article III, establishing the national courts, was left to Congress. At the initial session of the First Congress in 1789, the initial Judiciary Act was passed; it would serve as the model for all sub-sequent judicial legislation.

The path of the legislation involved the appointment of the Senate Committee for Organizing the Judiciary, consisting of members from each state. The committee had to overcome residual hostility to the idea of national courts, the relative youth of the government, and the fierce partisanship that threatened to erupt at any time. In addition to these problems, very few of the senators on the committee were lawyers. The Judiciary Act, or Senate Bill No. 1, was adopted in September 1789—following an entire congressional session of debate—as a compromise and, presumably, as a temporary measure.

The most important set of provisions in the Judiciary Act of 1789 created a three-tiered federal court structure. At the top was the United States Supreme Court (the only one expressly named in the Constitution), to consist of one chief justice and five associate justices. At the bottom were the district courts, one judge to each court and one court for each of the thirteen states, except for the states of Virginia and Massachusetts, each of which had two. The middle tier was the circuit courts, which would sit twice a year in each of the districts. There were three circuits to be ridden by the justices, one each for southern, eastern, and middle states. The original plan was for the circuit courts to consist of two Supreme Court justices joining the district court judge, but the difficulty of riding circuits very quickly resulted in only one Supreme Court justice on a circuit court.

The Constitution gave a limited amount of original jurisdiction to the Supreme Court, but the 1789 Judiciary Act made the district courts and the circuit courts the preeminent trial courts. Under the terms of the act, many civil matters, particularly admiralty cases, came before the district courts, and the circuit courts, among other assignments, had a general federal criminal jurisdiction. The lower federal courts were directed to follow the laws and procedures of the states in which they sat. Because of the politically controversial nature of the creation of the federal courts, these provisions of the first judiciary act were designed to calm fears about the possibly unbridled discretion of a national judiciary. The Supreme Court was prohibited from overturning factual determinations made by lower courts, and while the federal courts were permitted to hear cases that involved citizens from different states (diversity jurisdiction), they were not yet granted the jurisdiction to hear every matter that might arise under federal law, and indeed, under certain circumstances, the federal courts could not rule on federal questions until the highest state court had passed upon the issue. These provisions were designed to counter critics who feared that the national courts would intervene in all areas, rendering the state judiciaries impotent and obsolete.

The three-tiered structure first established by the 1789 legislation remains in effect, although the judges in the middle tier now sit in their own courts and exercise only appellate jurisdiction. The matters that can be heard by the federal courts have expanded far beyond the contemplation of the 1789 law, although its structural and jurisdictional provisions lingered until almost the end of the nineteenth century, and its procedural provisions still govern the basic operations of the federal courts.

BIBLIOGRAPHY

Goebel, Julius. History of the Supreme Court of the United States. Vol. 1. Antecedents and Beginnings to 1801. New York: Macmillan, 1971.

Marcus, Maeva, ed. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992.

Ritz, Wilfred J. Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence. Edited by Wythe Holt and L. H. LaRue. Norman: University of Oklahoma Press, 1990.

Stephen B.Presser

See alsoCircuits .

JUDICIARY ACT OF 1801

JUDICIARY ACT OF 1801. In the waning years of the John Adams administration, the operation of the federal judiciary became a divisive political issue when the federal courts were used to prosecute Jeffersonian editors for seditious libel, when Federalist judges applied the doctrine of the common law of crimes, and after several prosecutions were conducted for treason arising out the Whiskey Rebellion in western Pennsylvania and the Fries Rebellion in eastern Pennsylvania. Criticism of the courts helped ensure Thomas Jefferson's party victories in the presidential and congressional elections of 1800, but the Adams Federalists, before they were swept from power, sought to reform the judiciary in order to retain it as a bastion against the Jeffersonian Republicans.

Thus, as lame ducks, the Federalists secured passage of the Judiciary Act of 1801. Some of the provisions of this act were sensible reforms, but the statute has generally been scorned. The act reduced the number of U.S. Supreme Court justices from six to five and ended the justices' duty—imposed by the Judiciary Act of 1789—of sitting with a federal district court judge to handle criminal and some civil matters, known as "riding circuit." Instead, a system of six new circuit courts was to be set up and staffed by sixteen new circuit judges, to be appointed by the outgoing President Adams. The sixteen appointments were all given to Federalists, and these became known as the "midnight judges," because their positions were filled as time was running out for Adams.

The 1801 law also enlarged the scope of operation of the circuit courts to give them jurisdiction over all federal questions and, in particular, exclusive jurisdiction over litigation concerning the recent Bankruptcy Act of 1800. The 1801 legislation also expanded the opportunities for the federal courts to hear disputes between citizens of different states, made it easier to transfer cases from state to federal courts, and provided jurisdiction over disputes involving the granting of titles to land by the states.

Until the 1800 election, issues regarding the judiciary had not been particularly important in American life, but Jefferson and the Republicans saw the 1801 law as a tremendous danger to liberty. Believing that the U.S. Constitution granted Congress power to abolish the lower federal courts, they proceeded to eliminate the new circuit courts in the Judiciary Act of 1802 and revert to the provisions of the Judiciary Act of 1789. Supreme Court justice Samuel Chase sought to rally his fellows to declare the 1802 act unconstitutional in that it removed the sixteen new judges without benefit of impeachment, but the Republicans countered that they were legitimately disbanding courts, and not illegitimately extracting judges. In Stuart v. Laird (1803), the Supreme Court declined to rule the 1802 law unconstitutional. The expanded jurisdiction granted to the lower federal courts in 1801 was not reinstated until after the Civil War, and for the most part, the important judicial decisions during the formative period of American law were made by the state courts.

BIBLIOGRAPHY

Ellis, Richard E. The Jeffersonian Crisis: Courts and Politics in the Young Republic. New York: Oxford University Press, 1971.

Presser, Stephen B. Original Misunderstanding: The English, The Americans, and the Dialectic of Federalist Jurisprudence. Durham, N.C.: Carolina Academic Press, 1991.

Turner, Kathryn. "Federalist Policy and the Judiciary Act of 1801." William and Mary Quarterly 22 (1965): 3–32.

Stephen B.Presser

See alsoMidnight Judges .