The Judiciary Act of 1801--Chronology

Just as many people believe that there are pregnant or sacred places on this earth, places where heaven and earth meet or where the Divine seems to suffuse the area, so there are, in my judgment, pregnant times in history when events seem to cluster together in such significant rapidity that it takes years or even generations to unravel their meaning. Such is the case in American history, I believe, for the events in the aftermath of the Civil War (from 1865-68, for example). Another such time presents itself to us in the welter of activities after the Presidential Election of 1800. As we saw with respect to that Election, Republicans Thomas Jefferson and Aaron Burr each received 73 Electoral votes; the House of Representatives had to decide which of the two would become President. From about Dec. 15, 1800 - Feb. 17, 1801, events picked up at a furious pace as political theory vied with practical realities to overload the American intellectual consciousness. Even today we are still trying to understand all the implications of that election.

But what is often overlooked is that while this Presidential drama was playing out in pamphlet, press and political arena, another equally compelling theme was unfolding in Congress and in the Judiciary. If, as the Scriptures say, a threefold cord is not quickly broken, a person living in 1801 would have been in good company for wondering if one of the three "cords" binding our federal system would soon fray. In a nutshell, the compelling drama in Congress was whether to approve two things: a Judiciary Act proposed by the President in January, which would dramatically expand the size of the federal judiciary (creating 16 new judges) and an Organic Act to create an unspecified number of Justices of the Peace in the newly-organized District of Columbia.

To make matters even more dicey, the Chief Justice of the United States (Oliver Ellsworth) had just decided to resign from his position on Dec. 15, 1800 and so President Adams was confronted with the question of a rather immediate replacement for Ellsworth, lest his delay or indecision place this judicial plumb on the Republican's plate. They would, assuming a favorable Congressional resolution to the electoral debacle, take office on March 4, 1801. So, we have a three-month period that really deserves to be studied day-by-day in order to coax all the meaning out of it that we can. This essay gives a brief chronology of significant issues in that period; the next two essays will "flesh out" the chronology a bit more.

From Dec. 15, 1800- March 4, 1801

Here are some events, independent of but parallel to the Presidential confusion, that were unfolding at the same time.

1. Mon., Dec. 15, President Adams receives a resignation letter from Chief Justice Oliver Ellsworth, while Ellsworth was still in Europe.

2. Fri., Dec. 19, John Jay, Governor of NY and former Chief Justice, is confirmed by the Senate as next Chief Justice. No one yet knows if Jay will serve. He hadn't been asked.

3. Mon., Dec. 22, Jay's Commission as Chief Justice is sent to him in Albany. This will take at least a week to arrive.

4. Tues., Dec. 23, Adams begins "Plan B" for Chief Justice appointment by checking with Jared Ingersoll (PA) to test his willingness to serve. Ingersoll is mum for the moment.

5. Fri., Jan. 2, 1801, Jay pens a refusal letter. He cites the burden of Circuit Riding among other things. Letter won't arrive back in DC for a while.

6. Mon., Jan. 5, The Judiciary Act of 1801, first introduced before the Presidential election of 1800, comes to the floor of the House for debate. Some of its provisions, including the creation of additional federal judgeships, are controversial (see next essay). Adams called for judicial reform in his address to Congress in Dec. 1799. Thus, this bill is a "pro-Federalist" piece of legislation.

7. Mon., Jan. 19, Jay's refusal letter finally arrives in DC. What took it so long? Perhaps inclement weather. Perhaps Jet Blue never got off the tarmac.

8. Tues., Jan. 20, Adams decides to abandon "Plan B" and immediately nominates John Marshall, his Secretary of State, to become Chief Justice in Ellsworth's place. Marshall is right there and accepts the nomination on the spot. Nomination goes to the Senate for debate and confirmation.

9. Wed., Jan. 21, House passes Judiciary Act by 51-43 vote. Recall that since this is the Sixth Congress that is meeting (elected 1798), the Federalists enjoy a substantial majority (about 60-46). The Republicans gained the upper hand in the 1800 elections (about 68-38) but they would not "take over" until Mar. 4, 1801.

10. Tues., Jan. 27, Senate confirms Marshall as Chief Justice, but Adams keeps him on as Secretary of State until the end of his term.

11. Thurs., Jan. 29, Judiciary Act is taken up by the Senate. Because of the rush of events, no amendments are permitted.

12. Sat., Feb. 7, The Senate, by 17-11 margin, passes the Judiciary Act of 1801. The Federalist majority in the Senate is 20-12. Where are the missing guys?

13. Fri., Feb. 13, Adams signs the Judiciary Act of 1801. Recall that this is now the time that the House of Representatives is in day and night sessions voting for either Burr or Jefferson. That process began on Wed., Feb. 11.

14. Wed. Feb. 18, Adams submits a slate of 12 judicial nominees for the first four of the six reconstituted Circuit Courts under the just-passed law. There would three new judges for each of these four circuits. This was the day after Jefferson was named President by the House. I will go into some of these appointments in a later essay.

15. Fri, Feb. 20, The 12 judicial nominees are confirmed by the Senate. Now the commissions have to go out to them. Many of these men have not been consulted.

16. Mon, Feb. 23. Four additional circuit court judges are nominated by Adams--for the 5th and 6th Circuits.

Some complex maneuvering then takes place regarding naming of District Court judges--some of whom have been nominated to the Circuit courts. Also a three judge circuit in Washington DC is named by the Feb. 27 organic act. This seems to create 19 new federal judgeships, but I am not sure if there is a consistent way of "counting" the judges in scholarship today.

17. Sat., Feb. 27, Congress passed and Adams signed the Organic Act for the District of Columbia, creating many new Justice of the Peace positions for the District, among other positions.

18. Mon., March 2 and Tues., Mar. 3, the Senate approved nominations of a total of 53 "midnight" justices of the peace, registers of wills and marshals for the new District of Columbia. Among these justices of the peace was William Marbury, who would become celebrated in the 1803 case of Marbury v. Madison.

Let's turn now to some provisions of this Act.

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