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         Establishing a Chronology:  December 15, 1800-March 4, 1801

                Presidential, Congressional and Judicial Politics 

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 first years of the Civil War (1861-1863) or 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. With respect to that Election, Republicans Thomas Jefferson and Aaron Burr each received 73 Electoral votes (Adams came in third at 65); the House of Representatives had to decide which of the two who were tied, both of whom were Republicans/Democratic-Republicans (called Republicans below) would become President. Along with that portentous issue were several issues faced by Congress and the Supreme Court. From about December 15, 1800 --March 4, 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. 

 

As just hinted, what is often not so prominent in overviews of this period 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/or an Act, proposed in February,  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 December 15, 1800, and so President Adams was confronted with the question of the immediate need to replace Ellsworth, lest presidential delay or indecision place this judicial plum on the Republican's plate. The Republicans would, pending 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 and review a few significant pieces of legislation. 

 

                                     From December 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. Monday, December 15, President Adams receives a resignation letter from Chief Justice Oliver Ellsworth, while Ellsworth was still in Europe. 

2. Friday, December 19, John Jay, Governor of New York and former Chief Justice, is confirmed by the Senate as next Chief Justice. But no one yet knows if Jay will serve. Why? He hadn't been asked. Though Jay had served as Chief Justice from 1790-1795, he had threatened to resign in 1792 because of the onerous task of circuit riding, which was part of the Justice's job description, under the Judiciary Act of 1789.

3. Monday, December 22, Jay's Commission as Chief Justice is sent to him in Albany. This will take at least a week to arrive. Apparently the Presidential email server was down.

4. Tuesday,  December 23, Adams begins "Plan B" for Chief Justice appointment by checking with Jared Ingersoll (PA) to test his willingness to serve should Jay refuse. Ingersoll is mum for the moment. If I were Adams, I wouldn't have the merriest of Christmases. 

5. Friday, January 2, 1801, Jay pens a refusal letter. He cites the burden of circuit riding among other things. As will be shown in a subsequent essay, the harsh circuit riding requirements of the Judiciary Act of 1789 had been slightly relaxed by the Judiciary Act of 1793. Yet, still Jay is more comfortable back in the Empire State. His letter to the President won't arrive back in DC for a while. 

6. Monday, January 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 later essay). The circuit riding provision for Supreme Court Justices is eliminated. Adams had called for judicial reform in his address to Congress in December 1799. The Judiciary Act of 1801, by creating 16 new federal judgeships (called circuit judges) will be a very "pro-Federalist" piece of legislation. 

7. Monday, January 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. Tuesday, January 20, Adams also decides to abandon "Plan B" and immediately nominates John Marshall, his Secretary of State and third choice for Supreme Court Chief Justice, to become Chief Justice in Ellsworth's place. Marshall is right there and accepts the nomination on the spot. His nomination goes to the Senate for debate and confirmation. 

9. Wednesday, January 21, The 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 majority (about 56-49) in the House. The Republicans gained the upper hand in the 1800 elections (they would have a strong majority of 72-33) but they would not "take over" until March 4, 1801. 

10. Tuesday, January 27, Senate confirms Marshall as Chief Justice, but Adams keeps him on as Secretary of State until the end of his term. He will need him in about a month to sign a lot of commissions. . .

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

12. Saturday, February 7, The Senate, by 17-11 margin, passes the Judiciary Act of 1801. The Federalist majority in the Senate at this point is 21-11. Where are the missing guys? I wouldn't have wanted to miss this vote.

13. Friday, February 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 Wednesday February 11. 

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

15. Friday February 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 about their willingness to serve in the new capacity of Circuit Court Judge.

16. Monday February 23. Four additional circuit court judges are nominated by Adams for the new Fifth (three judges) and Sixth (one judge) Circuits. Total number of judges nominated or named is 16. Some complex maneuvering then takes place regarding naming of District Court judges--some of whom have just been nominated to the Circuit courts. 

17. Saturday, February 27, Congress passed and Adams signed the Act for the District of Columbia (later known as the Organic Act) , creating many new Justice of the Peace positions for the District, among other positions. 

18. Monday, March 2 and Tuesday, March 3, the Senate approved nominations of a total of 42 Justices of the Peace for the new District of Columbia, as well as 11 registers of wills and marshals for the new District of Columbia. Among these Justices of the Peace was William Marbury, whose commission wasn't delivered by the time Jefferson took office at noon on March 4. Marbury is the one who would become celebrated in the 1803 case of Marbury v. Madison

Let's turn now to some provisions of the Judiciary Acts of 1789, 1793, and the one just passed in February 1801, the Judiciary Act of 1801.

 

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