Empire of Liberty: A History of the Early Republic, 1789-1815
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It was a remarkable transformation, taking place as it did in such a relatively short period of time. And it was all the more remarkable because it flew in the face of much conventional eighteenth-century wisdom. Getting Americans to believe that judges appointed for life were an integral and independent part of their democratic governments—equal in status and authority to the popularly elected executives and legislatures—was no mean accomplishment. Such a change in thinking was a measure of how severe the crisis of the 1780s really was and how deep the disillusionment with popular legislative government in the states had become since the idealistic confidence of 1776—at least for those who became Federalists.
THE CONVENTION THAT CREATED the Constitution of 1787 was committed to an independent federal judiciary. The delegates agreed rather easily on an appointed judiciary serving for life during good behavior with a guaranteed salary and removal only by impeachment. No single state constitution had granted that degree of independence to its judiciary; indeed, in 1789 most state judges remained remarkably dependent on the popular legislatures, which in nearly all the states, like the House of Lords in England, retained some appellate authority in adjudication.24
Although the convention wanted an independent judiciary, it had difficulty in prescribing a court system for the new nation. Some of the delegates, especially those from South Carolina, wanted no separate national court system at all (with the exception of a single supreme court) and urged that all federal cases be tried in the existing state courts with the right of appeal to the federal Supreme Court. Others believed that the state courts could not be trusted to execute federal laws. Ultimately in Article III of the Constitution the convention delegates put many of the problems off to the future. They created a Supreme Court to be appointed by the president with the advice and consent of the Senate but only allowed for “such inferior courts as the Congress may from time to time ordain and establish.” Whether Congress was actually required to establish inferior courts was not at all clear. The Constitution did declare, however, that among other things “the Judicial Power shall extend . . . to Controversies between Citizens of the different States.”
When the first Congress convened in April 1789, the Senate immediately established a committee to draft a judiciary bill, chaired by Oliver Ellsworth, an experienced jurist from Connecticut who had sat on the Continental Congress’s Committee on Appeals and had been a member of the Constitutional Convention. Article III of the Constitution allowed the committee a wide variety of options. If lofty-minded Federalists like Alexander Hamilton had had their way, Congress would have established national judicial districts that cut through state lines and were staffed by squadrons of federal judges with full authority to carry national law into every corner of the land. At the other extreme were those Anti-Federalists who wanted to rely on the state courts to enforce federal law, allowing any separate federal courts to possess only admiralty jurisdiction.
Ellsworth and his committee wanted a separate federal court system. At the same time, however, they were well aware of the fears of a national judiciary that the Anti-Federalists had aroused during the ratification debates, especially fears of a national judiciary that omitted certain common law rights like trial by jury. Since Section 25 of the judiciary bill the committee drafted allowed for the overturning of state laws and state court rulings if they conflicted with federal treaties, statutes, or the Constitution, many Southerners feared it. Although some may have been worried about federal judges’ interfering with slavery, most were apprehensive that inferior federal courts might try to overrule state court decisions that forestalled payment of debts to British creditors required by the peace treaty of 1783.25 The possibility of conflict between the new federal government and the states was thus very great. One congressman even warned that the creation of a federal judiciary would lead to civil war.
The resultant Judiciary Act passed in September 1789 was an ingenious bundle of compromises that allayed many of the Anti-Federalist suspicions. Passage of the act was aided considerably by the fact that Congress at the same time was enacting a series of amendments to the Constitution that became the Bill of Rights, especially the Sixth and Seventh Amendments that protected people’s right to jury trials. In the end the Judiciary Act created an innovative three-tiered hierarchical federal court structure, consisting of the Supreme Court, circuit courts, and district courts, that has remained the basis for the court system to this day.
ALTHOUGH THE ACT ESTABLISHED the judiciary as one of the three essential branches of the federal government, it nevertheless allowed the existing state courts concurrently to exercise federal jurisdiction. Indeed, at first there was a good deal of overlap between federal and state judicial offices. In Rhode Island, for example, the U.S. district attorney, Ray Green, between 1794 and 1797 was at the same time the state’s attorney general. Only gradually during the 1790s did the states begin to pass laws prohibiting members of the state legislatures and other state officers from simultaneously holding federal positions. Until the national government got on its feet, the federal court system necessarily had to rely heavily on the states to carry on its business. Not only did federal judicial officials have to use state buildings for their activities, the Judiciary Act of 1789 also allowed state officials to arrest federal offenders, accept federal bail money, and detain all prisoners committed under the authority of the United States. Moreover, in all of the federal judicial districts, which coincided with the boundaries of the states (except for Virginia and Massachusetts, which each had two districts), the fee schedules, modes of selecting jurors, and the qualifications of admitting lawyers to the federal bar were patterned after state practice. Each of the district courts, which formed the lowest level of the federal judicial system, had to have a local resident as its judge, someone who necessarily would be familiar with local people and local practices.26
According to the Judiciary Act of 1789 these local district courts were to have jurisdiction over admiralty cases, petty crimes, and revenue collection. At the next level of the federal system were three circuit courts, catering to the three regions of the country, North, Middle, and South, each composed of three judges—the local district judge and two Supreme Court justices riding circuit twice a year, which the justices came to find increasingly intolerable. (In 1793 Congress reduced the number of judges for the circuit courts from three to two, thus somewhat easing the burden of travel for the Supreme Court justices.) These circuit courts were to be the major national trial courts with jurisdiction over important crimes, over cases involving out-of-state or foreign citizens, and over appeals from the district courts in admiralty cases. In those cases where the amount in question was more than five hundred dollars and there was diversity of citizenship, that is, the litigants were from different states, the federal circuit courts had “concurrent cognizance” with the state courts. Thus out-of-state litigants were able to remove their cases from what were often seen asthe prejudiced state courts to the more neutral federal courts.
At the top was the Supreme Court of six justices to convene twice a year in the national capital for two-week terms. Because most of the work of the justices was to take place on the road in the circuit courts, the Supreme Court initially was not expected to do much; indeed, up to 1801 the Court heard a total of only eighty-seven cases.27 In addition to possessing some original jurisdiction, the Supreme Court was granted appellate authority, including that over questions of federal law that had been decided in the state courts and in the federal circuit courts. Exactly what kinds of law—whether the civil and criminal common law, state statutes, or only federal statutes—ran in this federal system was left vague. Certainly most Federalists expected the federal judiciary to exercise the broadest possible jurisdiction, including that of the common law of crimes.28
Because Washington believed that the administration of justice was “the strongest cement of good government,” he sought for the courts only “the fittest characters to expound the laws and dispe
nse justice,” by which he meant men with established social and political positions.29 He thus appointed as chief justice his wealthy friend from New York, John Jay, who formerly had served as president of the Continental Congress, peace commissioner in Paris in the early 1780s, and secretary of foreign affairs under the Confederation. Likewise, Washington’s appointments of associate justices were distinguished political figures with Federalist sympathies drawn from various sections of the country, appropriate to the circuit courts; these included John Rutledge of South Carolina, James Wilson of Pennsylvania, William Cushing of Massachusetts, and James Iredell of North Carolina, which had finally ratified the Constitution on November 21, 1789 . Most of these judges still maintained a traditional magisterial notion of their judicial offices.
Traditionally, judges in the eighteenth century had been appointed to the courts because of their social and political rank, not because of their legal expertise; many were not even legally trained. They were expected to exercise a broad, ill-defined magisterial authority befitting their social position; they were considered members of the government and remained intimately involved in politics. In the colonial period Thomas Hutchinson of Massachusetts, for example, who was no lawyer, had been chief justice of the superior court, lieutenant governor, a member of the council or upper house, and judge of probate of Suffolk County of Massachusetts, all at the same time.
Similar traditional conceptions of the judiciary were carried into the Revolution and early Republic. During the Revolution Thomas McKean sat as a delegate to the Continental Congress from Delaware and even served as president of the Congress while continuing to be chief justice of the Pennsylvania Supreme Court. In Connecticut in the early nineteenth century, Jonathan Brace was simultaneously a member of the Connecticut council (the state’s upper house), judge of the county court, judge of the probate court, state’s attorney from Hartford, and judge of the city court.30 The Virginia Plan at the Constitutional Convention of 1787 proposed that the national executive join with several members of the national judiciary to constitute a “council of revision” to oversee all legislation passed by the Congress and each state legislature. While this proposal, modeled on New York’s similar council, was not finally approved by the convention, the mere fact that Madison, Wilson, and others vehemently defended this combination suggests that many leaders continued to think of judges as political magistrates rather than as legal experts separated from politics.
The same kind of traditional thinking influenced the appointments and behavior of the new federal judges in the 1790 s. Washington was certainly much less interested in the judicial experience of his appointees than he was in their political character. Although Jay had been chief justice of New York, he had served only a few weeks in that office. Iredell had less than six months of previous judicial experience before being named to the Supreme Court, and Wilson had never served as a state judge.31 Of the twenty-eight men who sat on the federal district courts in the 1790s, only eight had held high judicial office in their states, but nearly all of them had been prominent political figures.32 They saw their service on the court as simply an extension of their general political activity; some of them even continued to exercise political influence, write political articles for newspapers, and pass on Federalist patronage in their districts while sitting on the bench.
Probably the most conspicuous example of the judges’ magisterial behavior in the 1790s was the political character of their charges to grand juries. These charges were not simply narrow treatises on the niceties of the law; they were broad pronouncements on politics, often printed in the newspapers and then reprinted and spread throughout the land. The Federalist judges took advantage of these ceremonial occasions to instruct citizens on their duties and responsibilities to support the fledging national government and to criticize those who seemed to be opposed to the Federalist administration.33 At first, this sort of political behavior did not strike most people as unconventional; colonial judges had often charged juries with lectures on politics.34 Such practices were merely an aspect of the pre-modern magisterial character of the eighteenth-century courts. During the trials of the rebels in the Whiskey Rebellion, for example, no one objected to Justice William Paterson’s explicit directions to the jury to find the defendants guilty. With respect to the defendant’s intention, Justice Paterson declared,“there is not, unhappily, the slightest possibility of doubt. . . . The crime is proved.” Such directions were still considered customary in the late eighteenth century.35
Thus it is understandable that the irascible and abrasive Samuel Chase of Maryland, appointed to the Supreme Court in 1796, saw nothing wrong with his politicking openly on behalf of the Federalist cause while sitting on the bench. Indeed, he, along with Bushrod Washington, his colleague on the Supreme Court, even openly campaigned for the reelection of President Adams in 1800 . Chase was only doing what he thought his position as a political authority and magistrate justified.
Because many people in the 1790s continued to regard the federal judges as political magistrates, the early Congresses assigned a surprisingly large number of non-judicial responsibilities to them, including conducting the census and serving on commissions to reduce the public debt. In nearly all cases the judges willingly accepted these administrative responsibilities.36 Hamilton summed up the traditional view in 1802 by pointing out that judges were ex officio conservators of the peace and were expected to do more than merely adjudicate. Their duties were twofold,“judicial and ministerial,” and the ministerial duties were “performed out of Court and often without reference to it.”37
Almost immediately after appointing Jay as chief justice, Washington sought his diplomatic advice on the Nootka Sound crisis in 1790, and Jay had no inhibitions about giving it in writing. He had after all served simultaneously as secretary of state and chief justice of the Supreme Court while waiting for Jefferson’s return from France in 1789 . Chief Justice Jay likewise responded in writing when Secretary of the Treasury Hamilton asked him for a draft of a neutrality proclamation in April 1793 . Jay later worked his ideas about American neutrality into a grand jury charge, which was published in the newspapers and which the government sent abroad as a formal explanation of its position.38 Although Jay’s appointment as a special envoy to Britain in 1794 to prevent an impending war aroused some opposition in the Senate, most officials saw nothing inappropriate in the chief justice performing such a diplomatic mission. Later in 1799 Chief Justice Oliver Ellsworth headed the mission sent to negotiate the end of the Quasi-War with France. Indeed, throughout his tenure as chief justice, Ellsworth repeatedly offered advice to the Federalist administration on political matters and even on matters involving criminal prosecutions.39
In fact, the Federalists hoped that the federal courts might help to break down state loyalties and nationalize the society. Federal law under the Constitution, unlike that of the Confederation, would penetrate the membrane of state sovereignty and operate directly on individuals—one of the most radical features of the new national government. Senator William Paterson, later an associate justice of the Supreme Court, said during the drafting of the Judiciary Act in 1789 that he expected the federal courts to “carry law” to the people,“to their Homes, to their very Doors,” so that “we shall think, and feel,& act as one People.”40
But given the strong loyalty most Americans had to their separate states, this expansion of the authority of the federal courts had to be done carefully. Chief Justice Jay knew only too well that “the federal Courts had Enemies in all who fear their Influence on State Objects.” Thus contradictory opinions by the circuit courts, circuit-riding in general, and other problems with the federal courts “should be corrected quietly,” for, as Chief Justice Jay told New York senator Rufus King in 1793, if the “Defects were all exposed to public View in striking Colors, more Enemies would arise, and the Difficulty of mending them increased.”41
Out of fear that the state courts might undermine national authority, the Federa
lists drafted the Judiciary Act of 1789 in such a way as to make it more likely that the initial filing of federal cases would be done in federal trial courts rather than in state courts. This lessened the need for federal appellate review of state court decisions, particularly decisions involving suits of British creditors, which might have led to nasty conflicts between the federal and state judiciaries. Just such a British debt case, Ware v. Hylton, which had begun in a federal court, reached the Supreme Court in 1796 . The Court decided that the supremacy clause of the Constitution provided that treaties of the United States overrode a Virginia state law—an important precedent for establishing national authority. In that same year, 1796, the Court in Hylton v. United States ensured that the new federal government would have taxing power broad enough to meet its needs, again by defeating a Virginia case against a federal carriage tax. This case was an important enough precedent for the federal government’s ability to extract revenue from its citizens that Alexander Hamilton temporarily left his private law practice to argue the case before the Court on behalf of the government; this was the only time he ever appeared before the Court.
With these decisions the Federalist-dominated Court revealed its desire to declare that the United States formed a single nation of one people. In Chisholm v. Georgia (1793), however, the Court overreached itself. It decided that the state of Georgia was not immune from suits by citizens of another state. This decision represented such a serious assault on state sovereignty that it could not stand; even Federalists in Massachusetts were appalled by it. Many of the state legislatures called for a constitutional amendment to overturn the Chisholm decision and prevent states from being sued by foreigners or by citizens of another state. The result was adoption in 1798 of the Eleventh Amendment to the Constitution, which declared that “the Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”42