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                        The Judiciary Acts of 1789, 1793, and 1801

                                         Major Provisions of the Judiciary Act of 1789

The Judiciary Act of 1789 ("Act of 1789") was passed pursuant to Article III, Section 2 of the US Constitution on September 24, 1789. Though its 35 paragraphs often have a lot of detail that isn't important for us (for example, the places where the various district and circuit courts would meet), a few of the provisions are noteworthy. In this essay I will  focus especially on the staffing of the various levels of federal courts (sections 1-4). The Act of 1789 was written primarily by Senators Oliver Ellsworth and William Patterson, both of whom would go on to serve on the Supreme Court. Important provisions are:

1) With respect to the Supreme Court:  It would consist of six Justices (one Chief and five Associate) and would hold two sessions a year (February and August). Section 1 says this.

2) With respect to the District Courts:  the Act of 1789 created thirteen federal judicial districts, which primarily were contiguous with state boundaries, with some exceptions. One judge was appointed for each of these thirteen districts--a District Judge. Each District Court was required to hold four sessions a year. Thirteen districts, four sessions each.  Sections 2 and 3 deal with this.

3) With respect to the Circuit Courts:  the Act of 1789 created three circuit courts, which covered eleven of the thirteen district court districts (because Maine and Kentucky weren't yet states, their districts weren't included in one of the three circuits). The Eastern Circuit included the following districts:  NH, MA, CT, NY; the Middle Circuit included the districts of NJ, PA, VA, MD, DE; the Southern Circuit included the districts of The Carolinas (considered as one state) and GA.  Each district would have two sessions per year.  Thus, the Eastern circuit, consisting of four states, would have eight meetings of that circuit per year; the Middle circuit, consisting of five states, would have ten meetings of that circuit per year; the Southern circuit, consisting of two states, would have four meetings of that circuit per year.  This is Section 4 of the Act of 1789. 

The totals, then, would be 22 meetings of the circuit courts per year. This is important to know because of another the provision in the act required two Supreme Court Justices to sit at each of the 22 meetings of the circuit courts in a year.  That meant that there needed to be a presence of 44 Supreme Court Justices in their role as circuit judges each year.  If we do the math--realizing that there are six Justices on the Supreme Court, this means that each Supreme Court Justice had to make seven or eight circuit trips each year, sometimes to forbidding, dangerous, unhealthy, faraway and inhospitable climes, just to fulfill the statutory language of the Act of 1789.  I have belabored this provision because it will become the bugaboo for the Supreme Court for the next fifteen years. To repeat:  the most onerous provision of the Act of 1789, from the perspective of the US Supreme Court justices, was the circuit riding requirement.  I haven't discussed cases that each kind of court would hear--because the circuit riding provision would be at issue in 1793 and 1801.

                                                   The Judiciary Act of 1793

By 1790 it was obvious that the circuit riding provision of the 1789 Act was untenable. By 1792, Chief Justice John Jay threatened to resign from the Court if the law were not changed. This dissatisfaction led to the Judiciary Act of 1793 which, more than anything, addressed the circuit riding requirement. That change was as follows. Instead of two Justices of the Supreme Court needing to be at each of the 22 meetings of the circuit courts, only one needed to go. Of course this led to the possibility that the two judges on the circuit court would disagree with each other, but the law made provision for that possibility. Thus, the number of trips by the six members of the Supreme Court was cut in half.  There still would be 22 meetings, total, of the three circuit courts, but only one Supreme Court Justice needed to be in attendance. Doing the math leads to 22 trips/6 Justices, or between three and four trips a year as circuit rider.  Much better than the Act of 1789. Yet, one provision of the 1793 Act allowed for additional meetings, called "special sessions" of the circuit courts for hearing criminal matters." Thus, the problem of the Act of 1789 was seemingly mitigataed up by the Act of 1793, but it opened the Justices to additional trips to the various districts for criminal matters.

                                          Introduction to The Judiciary Act of 1801

Some scholars have referred to the Judiciary Act of 1801, also known as the "Circuit Court Act" (signed by President John Adams on Friday, February 13, 1801), as one of the most significant pieces of legislation concerning the judicial branch in our history. Even though it was repealed by the Republican-dominated Congress on March 8, 1802, it laid out some important issues, especially of court organization, that are still with us. 

Before talking about this Act and its significant provisions, I want to say a word about another law with which it often is confused. The Act for the District of Columbia (later known as the Organic Act) was passed by Congress and signed by President Adams on Friday, February 27, 1801, five days before Jefferson took office. This Act, 2 Stat. 103-108, provided for a "circuit court of the district of Columbia" consisting of one chief judges and two assistant judges (Sec. 3), as well as an unspecified number of justices of the peace (42 would be appointed by Adams in the next three days). The precise language of Section 11 of that Act is: 


     "Be it further enacted, That there shall be appointed in and for each of the said                  counties (two in DC--Alexandria and Washington) such number of discreet persons to        be justices of the peace, as the President of the United States shall from time to time        think expedient, to continue in office five years. . ."


Adams appointed a total of 53 individuals  under the Act, 42 Justices of the Peace,  and eleven others, on March 3, the day before he left office. He signed their Commissions and Secretary of State John Marshall affixed the Great Seal of the United States to these Commissions, but they weren't delivered before noon of March 4, when Adams officially left office. One of the intended recipients of a Commission, William Marbury, decided to sue to receive it when the new Secretary of State, James Madison, refused to deliver it. This, then, inaugurated the famous case of Marbury v. Madison. 

We can be even more precise on this.  Under the District of Columbia Act, the District was divided into two counties (Washington and Alexandria). President Adams decided that Washington County would have 23 Justices of the Peace and Alexandria County would receive 19 of them. The clerk who delivered these commissions, who just happened to be Chief Justice John Marshall's brother, set out late on the night of March 3, to deliver them. He had to make a decision--where do I go first?  He went to Alexandria County and delivered all 19 commissions.  But he didn't have time, before Jefferson was sworn in, to deliver the 23 commissions to Washington County. As it turned out, Jefferson appointed 12 of these to be DC Justices of the Peace.  He held up 11 appointments. William Marbury's was one of the one's held up.  He and three others of the 11 sued in the Supreme Court to get their appointments. 

You may often read that it was the Judiciary Act of 1801  that created the Justices of the Peace that then sued in Marbury. That is incorrect. It was the District of Columbia Act. 

                                         Walking Through the Judiciary Act of 1801 

The primary things accomplished by the Act of 1801  were three:


(1)To create/revamp the Circuit Courts into six circuits, each staffed by three full-time Circuit Court judges, except in the Sixth Circuit (KY, TN, Ohio and Ind. Territories), which would only have one judge. This would create 16 new federal judgeships (3 x 5 + 1= 16). So these six new circuit courts, staffed fully by new circuit judges, would replace the three old circuit courts of the Act of 1789.  At issue in Stuart v Laird, a companion case to Marbury, was whether these "replacement" circuit courts, really could just pick up the work and cases from their predecessor circuit courts or whether their authority only began with the Act of 1801.


(2) To reduce by one the number of Justices on the Supreme Court, from six to five. Since John Marshall had just been confirmed as Chief Justice in a six-man Court, as specified under the Judiciary Act of 1789, the next vacancy on the Court would not give Thomas Jefferson a Supreme Court appointment. How's that for politics? and; 


(3) To eliminate the circuit-riding responsibilities of the US Supreme Court justices. This had been highlighted by the Attorney General as early as 1790 as a burden on the administration of justice. Because the six new circuit courts would not be staffed at all by US Supreme Court Justices, they were under no obligation to serve as circuit riders.

Also important is the provision stating that the Supreme Court would have two sessions a year (December and June) and that it was authorized to issue various kinds of writs (sec. 2). The statute goes on to name all the districts in which there were district courts in the US. It might be helpful, even though it is a little boring, to specify these districts. In a nutshell, the districts would go from 13 to 22 (or more) in this Act. 

                                                       The List of the District Courts

Though not germane to my overall argument, a list of the district courts gives a sense of how the country had grown since 1789. They are: (1) That part of Massachusetts called Maine (Maine wouldn't become a state until 1820)--the district of Maine; (2) New Hampshire; (3) the rest of Massachusetts; (4) Rhode Island and Providence Plantations, called district of Rhode Island; (5) Connecticut; (6) Vermont; (7) Albany; (8) New York City; (9) Jersey; (10) Eastern District of Pennsylvania; (11) Western District of Pennsylvania; (12) Delaware; (13) Maryland; (14) Eastern District of Virginia; (15) Western District of Virginia; (16) North Carolina; (17) South Carolina; (18) Georgia; (19) District of East Tennessee; (20) District of West Tennessee; (21) Kentucky; (22) District of Ohio (including Ohio and Indiana Territories). 

Every treatment of the statute I have seen says that 23 districts were specified. I only count 22 in the statute. Perhaps they also mean one for Washington DC, but that isn't in the statute. Hmm. . . someone may get to the bottom of this relatively unimportant issue. . . 

Recall that we now have six circuits under the Act of 1801. The first circuit consisted of ME, NH, MA, RI; the second was CT, VT, Albany and NY; the third was Jersey, EPA, WPA, DE; the fourth was MD, EVA, WVA; the fifth was NC, SC, GA and the sixth was ET, WT, KY and OH. As mentioned previously, the first five circuits each had three new Circuit Judges appointed under the Act, while the sixth consisted of one Circuit Judge and the judges of the Districts of KY and TN. Two judges would constitute a quorum for doing business. After describing the sessions when the Circuit Courts met, the statute gave authority to the judges to adjourn or cancel sessions if they perceived it would be dangerous to hold court.


Section 11 of the Act of 1801 specifies the jurisdiction of the circuit courts. They were not primarily courts of appeals; that only became their primary function near the end of the nineteenth century. Instead they were to hear all crimes and offenses under the laws of the United States; all crimes committed on the high seas; and many other causes of action. One of the truly interesting issues for legal aficionados are the notions of jurisdiction and procedure. I won't go into those here in detail, but we already see what will become interesting issues in the history of administration of justice in this land--which federal court might have jurisdiction of a case (district or circuit) and which state court might also have jurisdiction. 

Section 21 of the Act specifies the creation of yet more districts: (1) splitting the district of Jersey into East and West Jersey; (2) a district of Potomac; (3) a district of Norfolk; (4) three districts in North Carolina. So, if my numbers are right, this creates an additional 1 + 1 + 1 + 2 districts, which should bring us to 27 of them. After several other procedural sections, the Act provides that "there shall be appointed for each of the districts hereby established, a person learned in the law, to act as attorney for the United States within such district" (Sec. 37). Finally, and most important from the perspective of the judges, is the salary provision (Sec. 41). It reads: 

     "That each of the circuit judges of the United States, to be appointed by virtue of this         act shall be allowed as a compensation for his services, an annual salary of two                 thousand dollars...except the judges of the sixth circuit, who shall be allowed fifteen           hundred dollars."

One scholar who has looked at this law in detail said that the federal judicial budget for the next year increased $31,500 for judges...exactly what one would have expected from this law. 


Though most of this Act is "housekeeping," the provision of 16 additional circuit judges (no new district court judges are envisioned) and elimination of the circuit-riding duties of the Supreme Court Justices, stand out as significant political statements. Before looking at the Judiciary Act of 1802, let's meet some of these people whom Adams named or tried to name as circuit judges. 

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