Judiciary Act of 1789

The framers of the Constitution provided that the new national government would be divided into three branches. The third was to be a court system, an institution that did not exist in the previous national government under the Articles of Confederation. However, the Constitution set out only the barest of outlines for the new judiciary, unlike the legislative and executive branches that were extensively detailed and circumscribed. Thus the first Congress had to flesh out the Constitution by creating a court structure.

The Judiciary Act of 1789 ranks as one of the most important enactments Congress has ever undertaken, more akin to a constitutive act (like amendments to the Constitution) than to ordinary legislation. The task was arduous, given the weakness of the new government and the extreme political sensitivity of many features of the court system. Congress struggled with the problem during the whole of its long first session, and the act that finally emerged in September 1789 was thought by many to be a sound but temporary compromise. Yet, thanks to a combination of astute political foresight, hard work, and luck, most of the important features of the national judiciary established by the act are with us today.

Structure

The act's most enduring feature was also the aspect that most surprised contemporaries: a three‐tiered hierarchical judicial structure. At the bottom were district courts, each with a single district judge, one in each state except Virginia and Massachusetts, which had two. (The remote Kentucky district of Virginia demanded its own court as the price of staying in the union, and the Maine portion of Massachusetts also received a court). At the top was a Supreme Court, staffed by five associate justices and one chief justice. In between were three circuit courts, the Southern (consisting at the time of South Carolina and Georgia; North Carolina was added in 1790 after it joined the union), the Eastern (containing New York, Connecticut, Massachusetts, and New Hampshire; Rhode Island was added in 1790 and Vermont in 1791, when they joined the union), and the Middle (comprising Virginia, Maryland, Pennsylvania, Delaware, and New Jersey). In order to reduce expenses for the nation and for poor litigants, the circuit courts were not staffed with their own judges. Rather, each district judge sat in the circuit court when it convened in his state, and two itinerant Supreme Court judges joined them during each of three twice‐yearly circuits. Since the broad trial jurisdiction of the circuit courts included the most sensitive and disputed kinds of federal cases, decisions there would be made by the most respected federal jurists, making costly appeals less likely. (The circuit courts are now known as the Courts of Appeal, are solely appellate, and are staffed with their own judges, but the three‐tiered arrangement has persisted.)

Both the hierarchy and the number of national courts surprised most Americans in 1789. All courts were trial courts at that time. No courts were confined to ruling on purely legal issues appealed from inferior courts, and an “appeal” might connote a new trial before a court containing more judges. However, opponents of the Constitution's ratification had feared that an “appellate” jury trial (or merely the Supreme Court sitting without a jury) might overturn facts found below by a local jury. To calm these fears and thus to reduce antagonism to the new centralized government, the Judiciary Act prohibited the Supreme Court from rehearing facts, thus limiting it to questions of law and coincidentally giving it hierarchical control over the lower federal courts in issues of law. Today all state and federal appellate courts follow this model, but it was a remarkable novelty in 1789.

If Americans had been polled in 1788, a large majority would probably have predicted that trials of cases coming within federal jurisdiction would take place in the various state supreme courts (see State Courts). Many Americans anticipated that the only federal courts would consist of a few admiralty judges scattered among seaports, dealing with maritime matters, and a single appellate Supreme Court. Such a scheme would have kept costs low while assuaging the fears of state judges and localistic opponents of the Constitution that federal courts would swallow up state court jurisdiction. Virginia Senator Richard Henry Lee and others supported this model in the first Congress, but nationalists led by Connecticut Senator (and later Chief Justice) Oliver Ellsworth beat back the challenge. They desired a highly articulated court system so that crucial cases could be tried before national judges (rather than state judges susceptible to strong antinational pressure), and so that the majesty and power of an otherwise small and distant, distrusted new national government might be brought closer to everyone's doorstep.

A second alternative model was also rejected by the first Congress. This system, known as nisi prius, was patterned on the extant court systems in England, Massachusetts, and New York, among other jurisdictions. It would have entailed a large Supreme Court that would have traveled in groups of two or three to try federal cases in the hinterlands, then would have periodically returned to the capital to decide difficult issues of law as a group. There would have been no other federal courts. If either the Lee plan or the nisi prius plan had been adopted, our judicial landscape (and probably our constitutional history) would have been vastly different than it has been.

Jurisdiction

The fear widespread in 1787–1789 that the federal courts might swallow up state court jurisdiction was a rational one. The Constitution used quite broad, inclusive, and vague language to describe the jurisdiction that the federal judiciary would exercise. Article III, section 2 states in pertinent part that “the judicial Power [of the United States] shall extend to all Cases” arising under the Constitution or federal law or treaties, and to controversies “between Citizens of different States … and between … the Citizens [of a State] and foreign … Citizens or Subjects” (emphasis added).

The political disputes that led James Madison and others to demand a national court system in the first place involved state court refusal to enforce ordinary debt contracts during the depression years of the 1780s. Hatred of the British impelled thousands of Americans to repudiate all or part of the debts that had been contracted with British merchants before the Revolution and that had remained unpaid when the courts closed on the eve of that bloody eight‐year struggle. Despite prohibitions in the peace treaty with Great Britain, state legislatures continued to pass court‐closing and debt‐reducing acts that made collection of British debts difficult or impossible. They also enacted moratorium laws postponing, and legal tender laws allowing reductions in, the obligations Americans owed to domestic creditors, many of whom were speculators and many of whom, relative to the debtors, lived out of state. Many state courts respected the anticreditor message sent by the economically hard‐pressed majority, enforcing this legislation and in some instances adding to its contract‐repudiating effects.

Several provisions of the Constitution could bring ordinary contract cases involving such debts into the federal courts: such cases might be controversies between citizens of different states, or between a citizen and a foreigner; they might involve a statute contrary to the peace treaty, and thus “arise” under it; or they might involve a violation of the prohibitions in Article I, section 10 against a state's “mak[ing] any Thing but gold and silver Coin a Tender in Payment of Debts” or passing “Law[s] impairing the Obligation of Contracts,” and thus “arise” under the Constitution. Many opponents of the Constitution did not want these cases taken away from the state courts. The Constitution's opponents also objected to the breadth and vagueness of the Constitution's jurisdictional language. The framers' avowed purpose of greatly strengthening the national government portended the possible sweep of many other ordinary cases into federal court. Especially upsetting was the possibility that ordinary cases between citizens of different states involving small amounts might allow out‐of‐state plaintiffs to win by default against poor and middling defendants unable to travel, or to bring their witnesses great distances to appear in federal court. The movement to amend the Constitution, which resulted in the adoption of the Bill of Rights in 1791, had a strong component of support from these opponents of the Constitution, who wished to restrict federal court jurisdiction severely (although nothing in the Bill of Rights as enacted directly accomplished such an objective).

The fears of the Constitution's opponents were partially neutralized by the Judiciary Act of 1789, as Congress adopted restrictions on the jurisdiction that might have been allotted to the federal courts under a full and broad reading of the Constitution. The least controversial types of jurisdiction—admiralty, petty crimes, collection of revenue—were lodged in the single‐judge district courts.

Much more controversial were cases involving citizens of two or more states (“diversity” suits) and those involving a United States citizen on one side and a foreigner on the other (“alienage” suits) (see Diversity Jurisdiction). While debt contract cases were the primary reasons for these types of jurisdiction, nothing in Article III prevented many other kinds of suits from being taken to federal court under them. Three judges, two of whom were members of the Supreme Court, would sit at the trial of such cases in the circuit courts, ensuring litigants more wisdom and care at their trials. Congress imposed an absolute amount‐in‐controversy limitation of $500—a large sum in 1789—on alienage and diversity cases, so that defendants involved in suits of less than that amount could not be taken to federal court by out‐of‐state or alien plaintiffs. Further, federal jurisdiction over diversity and alienage suits was made concurrent, giving such plaintiffs their choice of state or federal court. If the state court were chosen, and the defendant decided at the beginning of the suit not to transfer the case to federal court, the case would remain in the state court, as no avenue of appeal to the Supreme Court from state courts in diversity or alienage cases was permitted. (These restrictions persist today, although the amount‐in‐controversy limitation now is $75,000.) A further amount‐in‐controversy limitation of $2,000 was placed upon appeal of alienage and diversity cases to the Supreme Court, lessening even further the likelihood that poor defendants would be twice subjected to expensive travel.

The most controversial type of jurisdiction was that over cases “arising” under the Constitution, treaties, or laws of the United States (“federal question” suits). Today we have comprehensive federal regulatory legislation that gives rise to many federal question suits. However, such legislation was nonexistent in 1789. Modern readers have difficulty understanding the fears that such an open‐ended jurisdiction raised in the minds of opponents of the Constitution. Might “laws of the United States” encompass the laws of all the states? What state control over its domestic affairs could be wrested away by the federal negotiation of a treaty with a foreign power?

On the other hand, proponents of the Constitution saw this as the most important type of federal jurisdiction. They believed that the courts could use it to repel attacks upon the new Constitution. The most significant restriction in the Judiciary Act of 1789 gave the trial of federal question suits to the state courts. Only upon appeal to the Supreme Court after a final decision was had in the highest court of a state might a federal question actually reach a federal court. (Except for a brief interlude in 1801–1802, federal courts did not obtain general trial jurisdiction over federal questions until 1875.)

The restrictions astutely placed in the Judiciary Act of 1789 were successful in preventing any jurisdictional limitations or restrictions from being adopted as amendments to the Constitution. Proponents of the new government grumbled about these restrictions and about the undignified and arduous circuit riding that Supreme Court judges were forced to make, and planned to enact appropriate changes. They eventually did so in the Judiciary Act of 1801, the famous “midnight judges' act,” but Thomas Jefferson and the Republicans repealed this new law in 1802 as their first action after coming to power. The Judiciary Act of 1789 attained hallowed status as the enduring blueprint for America's judicial structure.

See also Judicial Power and Jurisdiction; Lower Federal Courts.

Bibliography

• Julius Goebel, Jr., History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (1971).
• Wythe Holt, ‘To Establish Justice’: Politics, the Judiciary Act of 1789, and the Invention of the Federal courts, Duke Law Journal (December 1989): 1421–1531.
• Wilfred J. Ritz, Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence (1990).
• Charles Warren, New Light on the History of the Federal Judiciary Act of 1789, Harvard Law Review 37 (November 1923): 49–132

— Wythe Holt

Article 3 of the U.S. Constitution provides for a Supreme Court to exercise the “judicial Power of the United States.” It also empowers Congress to provide through legislation “such inferior Courts as [it] may from time to time ordain and establish.” The first federal Congress passed the Judiciary Act of 1789 to establish the structure of the federal court system under the Supreme Court of the United States.

This 1789 law created two lower levels of federal courts. At the lowest level, it created 13 federal district courts, one for each of the 13 states. At the next level, it established three circuit courts to hear appeals from the district courts. At the top of the three-level federal judiciary was the Supreme Court, consisting of the chief justice of the United States and five associate justices. (In 1863 Congress increased the number to eight associate justices.)

The Judiciary Act of 1789 stipulated that the Supreme Court, as the court of last resort, would hear questions of on appeal from lower federal courts. Section 25 of this law gave the Supreme Court the power to exercise judicial review over the highest state courts when they made decisions that involved issues of federal law or the U.S. Constitution.

Greatly expanded and with the addition of appellate courts, the basic structure of the federal judiciary remains today essentially the same as when it was first created.

See also Federal judicial system

Sources

• Maeva Marcus, ed., Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789 (New York: Oxford University Press, 1992)

While the framers of the U.S. Constitution agreed upon the division of the federal government into three branches, the delegates disagreed over whether the Constitution should create inferior federal courts. In the end, the Constitution left the issue open, and the construction of Article III, establishing the national courts, was left to Congress. At the initial session of the First Congress in 1789, the initial Judiciary Act was passed; it would serve as the model for all sub-sequent judicial legislation.

The path of the legislation involved the appointment of the Senate Committee for Organizing the Judiciary, consisting of members from each state. The committee had to overcome residual hostility to the idea of national courts, the relative youth of the government, and the fierce partisanship that threatened to erupt at any time. In addition to these problems, very few of the senators on the committee were lawyers. The Judiciary Act, or Senate Bill No. 1, was adopted in September 1789—following an entire congressional session of debate—as a compromise and, presumably, as a temporary measure.

The most important set of provisions in the Judiciary Act of 1789 created a three-tiered federal court structure. At the top was the United States Supreme Court (the only one expressly named in the Constitution), to consist of one chief justice and five associate justices. At the bottom were the district courts, one judge to each court and one court for each of the thirteen states, except for the states of Virginia and Massachusetts, each of which had two. The middle tier was the circuit courts, which would sit twice a year in each of the districts. There were three circuits to be ridden by the justices, one each for southern, eastern, and middle states. The original plan was for the circuit courts to consist of two Supreme Court justices joining the district court judge, but the difficulty of riding circuits very quickly resulted in only one Supreme Court justice on a circuit court.

The Constitution gave a limited amount of original jurisdiction to the Supreme Court, but the 1789 Judiciary Act made the district courts and the circuit courts the preeminent trial courts. Under the terms of the act, many civil matters, particularly admiralty cases, came before the district courts, and the circuit courts, among other assignments, had a general federal criminal jurisdiction. The lower federal courts were directed to follow the laws and procedures of the states in which they sat. Because of the politically controversial nature of the creation of the federal courts, these provisions of the first judiciary act were designed to calm fears about the possibly unbridled discretion of a national judiciary. The Supreme Court was prohibited from overturning factual determinations made by lower courts, and while the federal courts were permitted to hear cases that involved citizens from different states (diversity jurisdiction), they were not yet granted the jurisdiction to hear every matter that might arise under federal law, and indeed, under certain circumstances, the federal courts could not rule on federal questions until the highest state court had passed upon the issue. These provisions were designed to counter critics who feared that the national courts would intervene in all areas, rendering the state judiciaries impotent and obsolete.

The three-tiered structure first established by the 1789 legislation remains in effect, although the judges in the middle tier now sit in their own courts and exercise only appellate jurisdiction. The matters that can be heard by the federal courts have expanded far beyond the contemplation of the 1789 law, although its structural and jurisdictional provisions lingered until almost the end of the nineteenth century, and its procedural provisions still govern the basic operations of the federal courts.

Bibliography

Goebel, Julius. History of the Supreme Court of the United States. Vol. 1. Antecedents and Beginnings to 1801. New York: Macmillan, 1971.

Marcus, Maeva, ed. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992.

Ritz, Wilfred J. Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence. Edited by Wythe Holt and L. H. LaRue. Norman: University of Oklahoma Press, 1990.

The Judiciary Act of 1789 established the lower federal courts. Under Article III, Section 1, of the U.S. Constitution, "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." In the Judiciary Act, the first Congress created federal trial courts and federal appeals courts to comply with this provision.

The first Congress engaged in considerable debate over the Judiciary Act. This was not surprising: the Constitutional Convention, which had ended a year and a half earlier, had revealed a deep division between Federalists and Anti-Federalists. Federalists promoted federal powers to protect against local bias and ensure federal supremacy. Anti-Federalists opposed a strong federal government and preferred to leave as much power as possible to the states. Although the debate over the Judiciary Act was not conducted entirely by Federalists and Anti-Federalists, these groups represented the opposing viewpoints.

Many concessions were made to Anti-Federalists in the Constitution. However, the ratification of the Constitution was a victory for Federalists because it created the potential for considerable federal powers. The bill for the Judiciary Act — the first bill to be considered in the first Congress — provided another opportunity for Anti-Federalists to present their arguments against strong federal powers.

On April 7, 1789, the Senate ordered itself to create a committee to draft a bill organizing a federal judiciary. By the end of May, a committee led by Oliver Ellsworth, of Connecticut, William Paterson, of New Jersey, and Caleb Strong, of Massachusetts, had devised a detailed, complex proposal. The committee envisioned a small, unintrusive federal judiciary with exacting jurisdictional requirements. This meant that a case would have to have certain characteristics before it could be heard by a federal court. Remembering criticisms made by the Anti-Federalists at the Constitutional Convention, the committee was careful to avoid giving the federal courts too much authority.

Despite the restrictions on jurisdiction, Anti-Federalists opposed the bill on the grounds that a federal judiciary in any form would deprive states of the right to exercise their own judicial powers. They argued that state courts were more than capable of deciding federal issues. Furthermore, the provision in Article III, Section 1, of the Constitution did not require Congress to create lower federal courts: it merely suggested that Congress do so.

The Anti-Federalists, led by Richard Henry Lee and William Grayson, both of Virginia, submitted amendments to limit the scope of the act. Samuel Livermore, a congressman from New Hampshire and an Anti-Federalist, moved the House to limit the jurisdiction of inferior federal courts to questions of admiralty. Lee did the same in the Senate. Another proposal consisted of creating no lower federal courts and expanding the jurisdiction of the Supreme Court. All the amendments were voted down. Senator William Maclay, of Pennsylvania, wrote in his diary, "I opposed this bill from the beginning… . The constitution is meant to swallow all the state constitutions, by degrees; and this to swallow, by degrees, all the State judiciaries" (Clinton 1986, 1531).

The Federalists, led by James Madison, of Virginia, insisted that a reasonable reading of Article III, Section 1, required Congress to establish lower federal courts. According to the Federalists, federal courts were necessary to ensure the supremacy of federal law. The supremacy of federal law over state law had, after all, been established in Article VI of the Constitution, which stated, in part, that "[t]his Constitution, and the Laws of the United States … shall be the supreme Law of the Land."

The Federalists argued further that federal courts provided a venue that would be less susceptible to bias than that of state courts. The Federalists declared that several types of cases were appropriate only in federal court, including cases involving disputes between states; aliens, or noncitizens; and crimes against the United States.

Under the proposed act, federal juries would comprise persons from all over the region, decreasing the potential for the jury bias that can exist in closely knit state courts. Also, federal judges would have no allegiance to any particular state because they would have judicial responsibility for several states at once, and thus would be less prone to bias than were state judges.

Eventually, the Federalists won enough support to pass the act. The House approved the bill submitted by the Senate without a recorded vote, and President George Washington signed the act into law on September 24, 1789.

The act established two sets of federal courts to operate below the U.S. Supreme Court. On one level, the act created thirteen federal districts. Each of these districts contained a federal trial court that had jurisdiction over minor criminal cases, admiralty and maritime cases, and civil actions on federal matters.

On another level, the act created three federal circuit courts. The circuit courts were given trial court jurisdiction over serious criminal cases and three categories of civil cases: cases where the United States was a plaintiff; cases where at least one of the parties was alien to the United States; and cases between parties of different states, or "diversity" cases, if the amount at issue exceeded $500. Circuit court jurisdiction over diversity cases was made concurrent with state court jurisdiction. This meant that a federal trial was not mandatory, and a plaintiff could sue in either a state or federal court. Also, if a defendant from another state was being sued in state court for more than $500, she or he could have the case moved to the federal circuit court.

Each of the circuit courts comprised a federal district court judge and two Supreme Court justices. This composition was a concession to Anti-Federalists. The general idea was that requiring Supreme Court Justices to sit on circuit courts, or "ride circuit," would force them to keep in touch with local concerns. Theoretically, this would prevent the development of the elite judicial aristocracy feared by the Anti-Federalists.

The Judiciary Act also identified the precise jurisdiction of the Supreme Court: The Supreme Court could hear appeals from the federal district and circuit courts. The Supreme Court could also hear appeals from state courts in cases involving federal treaties or statutes, state statutes that were repugnant to the federal Constitution or to federal laws or treaties, and the interpretation of any clause of the Constitution or of federal laws or treaties. In any case, the decision of a state court would be reviewed by the Supreme Court only if it was against federal interests.

The act gave the Supreme Court trial court jurisdiction over controversies between two or more states and between a state and citizens of another state. The Supreme Court was also given trial court jurisdiction to hear cases against ambassadors, public ministers, and consuls or their domestics, with the adjunct that district courts could also hear cases against consuls or vice consuls. (Consuls and vice consuls were government officers living in another country and responsible for the promotion of U.S. business in that country).

The Judiciary Act fixed the number of justices on the U.S. Supreme Court at six. As the nation grew in size, new circuits were added to the original three, and justices were added to the court along with the circuits. By 1863, the number of justices on the Supreme Court had grown to ten. In 1866, Congress reduced the number of justices to seven. In 1869, the figure was set at nine, where it has remained.

In many sections of the act, federal trial court jurisdiction was made concurrent with state court jurisdiction. This meant that federal courts did not have exclusive jurisdiction over many matters involving federal law. One notable exception was that the federal courts were given exclusive jurisdiction to hear cases involving prosecution for the violation of federal criminal laws.

The Judiciary Act did not provide for federal question jurisdiction. That is, it did not grant federal courts broad authority to hear all cases that arose under the Constitution or federal law. This may have been because no federal laws were on the books at the time the act was established. Whether intentionally or owing to a lack of foresight, Congress chose to identify in the first Judiciary Act the specific cases that could be heard in federal court. Congress did pass a statute authorizing federal question jurisdiction in 1875. However, to this day, Congress usually grants federal court jurisdiction over new laws in a separate statute or clause.

The creators of the Judiciary Act understood it to be a work-in-progress. On the night before its final passage, Madison, an ardent proponent of the act, wrote that it was "defective both in its general structure, and many of its particular regulations" (Clinton 1986, 1539).

The structure of the federal judiciary has changed dramatically since the passage of the first Judiciary Act. The federal judiciary is now more streamlined. The federal district courts handle all federal trials. The circuit courts are now called U.S. courts of appeals, and they are exclusively appeals courts: they no longer have trial court jurisdiction over any cases. Supreme Court justices no longer have to ride circuit. Despite these changes, the Judiciary Act's idea of creating two levels of federal courts beneath the Supreme Court has remained intact.

The act's concern with establishing limits to federal court jurisdiction now seems quaint. In the more than two centuries since the passage of the act, statutes passed by Congress and decisions issued by the Supreme Court concerning the jurisdiction of federal courts have effectively expanded the reach of federal courts. Federal courts have also increased in number: there are now eleven federal circuits, each containing an appeals court and several federal district courts.

See: diversity of citizenship; Supreme Court of the United States.

When the First Congress gathered in the spring of 1789, eleven of the thirteen states had recently agreed to the Constitution. Although the Constitution provided important details for the legislative and executive branches, it did not flesh out the judicial branch of the new national government. For example, no one knew whether there would be any federal courts other than the "one Supreme Court" mandated by the Constitution, or how many judges would sit on the Supreme Court, or what sorts of jurisdiction any lower federal court might have. So, one of the First Congress's first and most important duties was to establish the federal judiciary. After a summer of heavy debate, the Judiciary Act of 1789 (1 Stat. 73) was signed into law in September.

The Power of the National Government

The Framers of the Constitution, and even more so the citizens of the United States, were sharply divided on the issue of federalism. Debate raged as to how much power should be delegated by the previously independent states to the newly centralized national government—which, because of that centralized power was threatening to the powers and privileges of the states.

Federalists, including most of the Framers, wanted to increase the power of the central government, while "anti-Federalists" either desired no such increase or were afraid that the Constitution increased national power too much.

The issue of federal power versus states' power extended to the idea of a national judiciary. Under the loose alliance established by the Articles of Confederation, there had been no national court structure. Some saw no need for a national court system even in 1787 to 1789, when the Constitution was drafted, debated, and adopted, arguing that the existing state courts would be good enough. Some thought that only a few federal judges would be needed to deal with issues such as the interpretation of the Constitution, controversies between states, cases involving the official representatives of other nations, and perhaps admiralty cases concerning commerce on the high seas. Others thought that national courts should essentially replace the state courts, at least for much important litigation over debts, contracts, and commerce.

The Problem of Debts

At the Constitutional Convention in 1787, the Framers were seriously upset at many actions taken by the state legislatures and courts during the six years since England had surrendered at Yorktown. Most of the offending actions concerned debts, since state courts were the usual debt collection agency for creditors (people to whom a debt is owed). The 1780s were depression years, as the Revolution had drained off to Europe all of the hard money (coin) in circulation in the former colonies. Paper money was manufactured to fill the gap, but its worth generally declined rapidly. Bad crop years in the middle of the decade made times even tougher, for most Americans were farmers. States also increased taxes to pay off their own war debts. The common people and many in the elites found that they could not pay their debts, especially millions of dollars owed to British merchants since before the Revolution broke out. Many people thought that winning the war with England meant these debts were canceled, and many were so angry at British depredations throughout eight bloody years of war that repaying them seemed out of the question in any case.

State courts were flooded with debt cases, and sympathetic or frightened judges ruled according to the prevailing winds of Democratic public opinion. Juries openly forgave debts. The people demanded relief in the forms of paper money, debt moratoria, tax relief, and the closing of courts. Legislatures obliged in many states, by making other things besides "gold and silver Coin a Tender in Payment of Debts" and otherwise passing "Law[s] impairing the Obligation of Contracts" (to quote two prohibitions placed on the states in article I, section 10 of the 1787 Constitution), as well as delaying taxes due. When legislatures or courts balked or matters got worse, popular antidebt protests or marches occurred in at least eight states from 1785 to 1787. In five states these protests temporarily closed some courts, Shays' Rebellion in Massachusetts in 1786–1787 being only the largest and longest of them.

The "British debts," or the prewar debts that Americans owed to British merchants, proved even more difficult to deal with. Six states closed their courts to British creditors. Every state enacted some legislation suspending, lowering, or otherwise impairing (that is, making less collectible) these debts, and most allowed juries to deduct interest accrued during wartime. Owing to British pressure, the 1783 Peace Treaty provided that "Creditors ... shall meet with no lawful Impediment to the Recovery of the full value in Sterling Money of all bona fide debts heretofore contracted." But, faced with debtor upset and the popular hatred of "British debts," state legislatures continued to enact legislation against those debts. Courts and juries from New York to Georgia, especially those below the Mason-Dixon line, where more than 80 percent of such debts rested, continued to refuse to enforce them.

The Constitutional Convention

Popular debtor representatives by and large refused the seats offered to them at the Constitutional Convention, so that it was dominated by those who favored creditors interests and wealthy planters. Such Framers continually expressed outrage against debtor interests and against the state courts that enforced them. James Madison asked bluntly, "What was to be done after improper Verdicts in State tribunals obtained under the biased directions of a dependent Judge, or the local prejudices of an undirected jury?" But even many convention delegates opposed a system of lower federal courts, and it was clear that popular opposition to national courts would be great. Because of this controversy and opposition, the article of the Constitution concerning the judiciary was short and vague.

The Constitution specified only a Supreme Court, allowing Congress to decide whether to create other courts and how many judges would sit on each. It gave the Supreme Court jurisdiction over:

• Suits involving foreign citizens
• Suits between citizens of two states
• All suits arising under the Constitution, the laws of Congress, and treaties
• Cases in equity (in which jurors did not sit)
• Appellate jurisdiction over questions of fact (enabling the Supreme Court to override jury verdicts on appeal)
• All admiralty cases and instances involving the United States as a party

These provisions, though broadly stated, seemed to sweep into federal court all the troublesome debt issues. While the Supreme Court was given trial jurisdiction over suits between states and suits involving the public ministers of other nations, and appellate jurisdiction over all others, Congress could make "exceptions" and "regulations." Some terms were even vaguer. No one knew, for example, what constituted a suit "arising under" the Constitution or a treaty.

When the newly drafted Constitution was disclosed, it was met by raging anti-Federalist opposition. The judiciary provisions in particular provoked much antagonism. To many, the broad and vague jurisdictional language undermined the state courts, especially in instances of debt. The fight over adoption was fierce, and the Constitution was barely accepted in such large key states as Massachusetts, Virginia, and New York. It apparently passed in Pennsylvania and New Hampshire only because of political shenanigans, and North Carolina and Rhode Island at first rejected it outright. Some anti-Federalist opponents were elected to the First Congress. With so much controversy, Congress, facing the crucial issue of the judiciary, would have to find a compromise.

Congressional Compromise: a Three-Tiered Federal Court

Thanks to the wise leadership of Senator Oliver Ellsworth of Connecticut, the Judiciary Act of 1789 put forth a compromise plan that established a strong national judiciary (though there were some surprises). Ellsworth developed an acceptable structure for the judicial branch that, with three major exceptions, has endured to the present day.

Contrary to those who wished for a minimal judicial presence, the act established three tiers of federal courts: the Supreme Court, district courts, and circuit courts:

The Supreme Court was to sit at the place of government, primarily as an appeals court, and was staffed by a Chief Justice and five associates.

Single-judge district courts were placed in each state. These courts, with trial jurisdiction over admiralty, revenue collection, and petty crimes, had very little to do with the matters that divided Federalists and anti-Federalists, and they established a localized, nonconfrontational presence of the national government.

Circuit courts would sit twice a year in each of the states and would handle most of the trials in matters of contention between the Federalists and anti-Federalists: debt cases involving British creditors, suits between citizens of different states, and important criminal trials. Supposedly to cut costs, but more likely to enable judges of national reputation to handle the tough issues of the day, the circuit courts were staffed with two Supreme Court judges, plus the local district judge.

To calm the opposition, the Judiciary Act gave trial jurisdiction over suits arising under the Constitution, federal laws, and treaties to state courts. Decisions could be appealed to the Supreme Court only when the ruling was against the national interest. Over the strong objection of Great Britain, only debt cases worth more than 500 dollars (at the time a large sum) could be brought to federal court. The Supreme Court was prevented from overturning facts found by juries.

State legislation in favor of creditors was quickly overturned. Nevertheless, no great anti-Federalist explosion occurred over the judiciary structure as set up by the act. Prosperity returned, helping to calm the populace, and continuing upset over British debt cases was finally settled diplomatically. After about a century, with anti-Federalist fears long forgotten, later acts made some changes to the judiciary: they established federal trial jurisdiction over federal questions, stopped the practice of Supreme Court justices ceased serving in circuit courts, and made circuit courts exclusively appellate. Otherwise, the Judiciary Act of 1789 is with us still.

Bibliography

Holt, Wythe. "'To Establish Justice': Politics, the Judiciary Act of 1789, and the Invention of the Federal Courts." Duke Law Journal 1421 (1989): 1421–1531.

Ritz, Wilfrid J. Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence. Norman: University of Oklahoma Press, 1990.

Warren, Charles. "New Light on the History of the Federal Judiciary Act of 1789." 37 Harvard Law Review (1923) 49–132.

The first page of the Judiciary Act of 1789.

The United States Judiciary Act of 1789 (ch. 20, 1 Stat. 73-93) was a landmark statute adopted on September 24, 1789 in the first session of the First United States Congress establishing the U.S. federal judiciary. Article III, section 1 of the Constitution prescribed that the "judicial power of the United States, shall be vested in one Supreme Court", and such inferior courts as Congress saw fit to establish. It made no provision, though, for the composition or procedures of any of the courts, leaving this to Congress to decide.

The existence of a separate federal judiciary had been controversial during the debates over the ratification of the Constitution. Anti-Federalists had denounced the judicial power as a potential instrument of national tyranny. Indeed, of the ten amendments that eventually became the Bill of Rights, five (the Fourth through the Eighth) dealt primarily with judicial proceedings. Even after ratification, some opponents of a strong judiciary urged that the federal court system be limited to a Supreme Court and perhaps local admiralty judges. The Congress, however, decided to establish a system of federal trial courts with broader jurisdiction, thereby creating an arm for enforcement of national laws within each state.

Details of the Act

The Act set the number of Supreme Court justices at six: one Chief Justice and five Associate Justices. The Supreme Court was given exclusive original jurisdiction over all civil actions between states, or between a state and the United States, as well as over all suits and proceedings brought against ambassadors and other diplomatic personnel; and original, but not exclusive, jurisdiction over all other cases in which a state was a party and any cases brought by an ambassador. The Court was given appellate jurisdiction over decisions of the federal circuit courts as well as decisions by state courts holding invalid any statute or treaty of the United States; or holding valid any state law or practice that was challenged as being inconsistent with the federal constitution, treaties, or laws; or rejecting any claim made by a party under a provision of the federal constitution, treaties, or laws.

The Act also created 13 judicial districts within the 11 states that had then ratified the Constitution (North Carolina and Rhode Island were added as judicial districts in 1790, and other states as they were admitted to the Union). Each state comprised one district, except for Virginia and Massachusetts, each of which comprised two. Massachusetts was divided into the District of Maine (which was then part of Massachusetts) and the District of Massachusetts (which covered modern-day Massachusetts). Virginia was divided into the District of Kentucky (which was then part of Virginia) and the District of Virginia (which covered modern-day West Virginia and Virginia).

This Act established a circuit court and district court in each judicial district (except in Maine and Kentucky, where the district courts exercised much of the jurisdiction of the circuit courts). The circuit courts, which comprised a district judge and (initially) two Supreme Court justices "riding circuit," had original jurisdiction over serious crimes and civil cases of at least $500 involving diversity jurisdiction or the United States as plaintiff. The circuit courts also had appellate jurisdiction over the district courts. The single-judge district courts had jurisdiction primarily over admiralty cases, petty crimes, and suits by the United States for at least $100. Notably, the federal trial courts had not yet received original federal question jurisdiction.

Congress authorized all people to either represent themselves or to be represented by another person. The Act did not prohibit paying a representative to appear in court.

Congress authorized persons who were sued by citizens of another state, in the courts of the plaintiff's home state, to remove the lawsuit to the federal circuit court. The power of removal, and the Supreme Court's power to review state court decisions where federal law was at issue, established that the federal judicial power would be superior to that of the states.

The Act created the office of Attorney General, and also provided for the appointment of a marshal, one or more deputy marshals, and a United States Attorney for each judicial district.

A clause granting the Supreme Court the power to issue writs of mandamus outside its appellate jurisdiction was declared unconstitutional by Marbury v. Madison 5 U.S. 137 (1803), one of the seminal cases in American law. Thus, the Judiciary Act of 1789 was the first act of Congress to be partially invalidated by the Supreme Court.

The Judiciary Act of 1789 included the Alien Tort Statute, now codified as 28 U.S.C. § 1350, which provides jurisdiction in the district courts over lawsuits by aliens for torts in violation of the law of nations or treaties of the United States.

External links

• Judiciary Act of 1789

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