The Judiciary Act of 1789: First Essay

The Judiciary Act of September 24, 1789 ("Act") is known as the most significant statute defining the nature of the federal judiciary in the history of the United States. But it isn't much studied and is rarely, if ever, read it in its entirety. There is reason for this. The statute is about as exciting as a phone book, and its technical rules of geographical boundaries and meeting times of the district and circuit courts, coupled with about 20 sections on jurisdictional and procedural matters in the courts, means that only the most intrepid, bored or lost will try to work through it.

This essay will not review each section; indeed, it will not review even the more "interesting" sections--discussing issues of jurisdiction and procedure in the courts (which begins with sec. 9 and goes until the end--sec. 35). Those are worth several essays in themselves. One of the reasons, for example, of their worth is that the decision often considered the most important US Supreme Court decision in history (Marbury v. Madison, in Feb. 1803) invalidated a portion of sec. 13 of this act. That is, though Marbury v. Madison is best known for giving us the doctrine of judicial review (the Court's ability to pass judgment on, in this instance, the constitutionality of federal statutes), it really stands for the proposition that the writ of mandamus, mentioned in sec. 13 of the Act, is an exercise of the Court's original jurisdiction, and that this would add to and therefore conflict with the brief list of items in the Court's original jurisdiction in Article III of the US Constitution. When a constitution and statute conflict, the statute must give way. Hence Marbury v. Madison partially invalidated sec. 13 of the Act.

I actualy disagree with Marshall's reading of the Judiciary Act of 1789 in Marbury v. Madison, but you can only disagree with the conclusion of Marbury v. Madison if you have closely read the Act itself.

I will only help you walk through the first six sections of the Act, and that for two reasons. First, if you do this, you will immediately enter into deeper and more important knowledge of statutes and the way our "system" works than if you just "read a summary" of the Act. Second, you will begin to develop confidence in understanding where "pressure points" of statutes exist so that, in a way, you can anticipate needed changes well before the people who were implementing the statute felt the need to change it. My contention, further, is that if you learn patiently to read statutes like this, you will develop such a depth of understanding that you will be singled out as a semi-genius and be invited participate in things you couldn't otherwise imagine. You won't necessarily be a genius, but I am giving you a method which will lead you to a knowledge more profound than that possessed by others and that will be recognized immediately by scholars, judges and significant professors in the field.

On to the Text of the Act

In this and the next essay I will focus on the most unreadable sections, esp. secs. 1-6, which describe the makeup and sessions of the district, circuit and Supreme Court. My contention is that the Judiciary Act of 1789 undermined itself in these sections by creating an unworkable system of circuit riding for the Supreme Court justices. Indeed, it was this system which came under fire as early as 1790 and eventually led to the controversial Judiciary Act of 1801. I want to show you that unworkability very clearly here so that, in the words of Habakkuk, "he who runs may read."

The first six sections of the Act speak of the three levels of federal Courts--the Supreme, the Circuit, the District Courts. Six Justices comprised the Supreme Court. This is a statutory matter, and therefore Congress was able (and did) increase, and even decrease, the size of the Court. Seekers of knowledge will store this fact in their consciousness, looking eagerly for the other statutes in our history which have tampered with the number of Justices on the Court. Then, we note the "term" of the Court. It had two sessions annually (duration unspecified), beginning the first Mondays in February and August. That, too, will change--in 1801, in 1802 and later. But I am really interested in the District and Circuit Courts, and the workload of the Justices of the Supreme Court as they had to "ride circuit."

The heart of this new judicial system was a court called the District Court. Thirteen of these courts were set up by Sec. 2 of the Act, but they are not the 13 you would ordinarily imagine. Indeed, with 13 original states, you would think there would be one district per state. But read on. Many "summaries" of the Act eliminate the enumeration of the districts in this section because who, in their right mind, would want to read six superboring lines of text? But if you read these lines, you are led to observe the following. The 13 districts include two districts which were not yet states (Kentucky and Maine) and 11 districts coterminous with the boundaries of 11 of the original 13 colonies (NH, MA, CT, NY, NJ, PA, DE, MD, VA, SC, GA). Well, you say, what is missing? Well, there are no district courts for Rhode Island or North Carolina. I don't even have to tell you what the "inquiring student" will do with this piece of information. And, no, I am not going to tell you why...

Each District Court had a District Court Judge, who conducted four terms per year in his district. These terms were staggered, though many of the districts had the same terms as each other. Most of the districts courts "held court" in more than one city in the district; sec. 3 details this. But it is precisely the "calendar" of when courts were supposed to meet, that got the system into trouble.

Let me illustrate this in the next essay.

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