Last week we covered the establishment of the executive branch, with the appointments of secretaries of war, state, and treasury, as well as an Attorney General. This week, we take a look at the establishment of the Federal court system.
Senate Bill
The first bill introduced in the new US Senate was the Judiciary Act. The Constitution had given relatively little details on what the court system would look like. One reason for this was that the Convention delegates did not seem to agree, and figured it would be better to leave that debate up to the legislature. Well, now the legislature had to fill in those details.
It was important to get the courts up and running, but drafting the details of the bill would take time. The Senate referred the bill to committee for consideration. It included one member from each state. There were only eight states represented in the Senate at the time, so the initial committee only had eight members, including Oliver Ellsworth of Connecticut, William Paterson of New Jersey, William Maclay of Pennsylvania, Caleb Strong of Massachusetts, and Richard Henry Lee of Virginia. A week later, senators from Maryland and South Carolina finally showed up and were also added to the committee.
Remember that the Senate only consisted of twenty senators at the time, and only eleven or twelve of them were showing up at the time for sessions. Many states only had one senator present. So the committee consisted of almost all the active senators who had arrived in New York.
Oliver Ellsworth
I mentioned the names of the key players on the committee. Typically most credit for the bill is given to Oliver Ellsworth. He has been involved in a number of things in our story, but I haven’t really focused on Ellsworth before. A little background: Ellsworth came from a relatively good Connecticut family. He started college at Yale, but transferred to the College of New Jersey, at Princeton, where he became good friends with William Paterson and Luther Martin.
Ellsworth became a successful attorney before the Revolutionary War. He also served in the Connecticut militia, where he rose to the rank of Lieutenant Colonel before the war began. Ellsworth was a patriot and, as a militia officer, led cavalry against the British in New York in 1776. Military life, though, was not his thing. Ellsworth maintained his legal practice during the war and served in the Continental Congress beginning in 1777. After the war, Ellsworth became a state judge in Connecticut.
He also received an appointment to the Constitutional Convention in Philadelphia in 1787. There, he worked alongside his old college buddies Patterson of New Jersey and Martin of Maryland to help draft the Constitution. I mentioned that during the Convention some delegates were more active, and others barely showed up at all. Ellsworth was one of the more active delegates at the convention, and served on the Committee of Detail, which played a big role in the final version of the Constitution.
Ellsworth left the convention a few weeks before it ended, so he never signed it. Still he was a strong supporter, and also played a big role in Connecticut’s ratification convention. He emerged as a leading Federalist and was seen as very supportive of the Washington Administration. After being appointed one of Connecticut's first US Senators, Ellsworth took on a role which was essentially the majority leader of the Senate, although that position did not officially exist at the time.
Committee on the Judiciary
On the Senate Committee that had been designated to write the Judiciary Bill, Ellsworth became the bill’s main author. This would not be easy. The outline of the judicial branch had been particularly vague as written at the Convention. The delegates did this because they really didn’t agree on what the judicial branch should look like. Just like the senators would not agree on what it should look like.
There were many states that had used their ratifying conventions to put restrictions on the new sort of federal court system that this committee was tasked with creating. Republican senators on the Committee like Richard Henry Lee and William Maclay were sent to the Senate with instructions to limit the power of the new federal court system. Other federalist senators like Ellsworth and his old college buddy William Paterson, advocated for a more powerful federal court system that could handle a wide range of issues.
Speaking for the opposition, Lee reminded the committee of the complaints outlined in the Constitution that Americans considered it illegitimate to be tried in courts that were some distance from their homes, and without a jury. These were issues listed in the Declaration of Independence as reasons for breaking with Britain. And remember, there was no bill of rights attached to the Constitution yet, so many senators wanted those protections in the Judiciary Bill.
Another big issue was debts to Britain. Part of the peace treaty had promised good faith in allowing British creditors to collect pre-war debts owed by Americans. Many states had pretty much ignored this promise and were not making it easy for British creditors to pursue debt collection. Many anti-federalists opposed a new federal court system that would make things easier for British creditors.
Among the changes the Virginia ratifying convention had demanded was limiting federal courts to maritime cases and the Supreme Court to cases involving foreign diplomats and disputes between state governments. The federalists, men like Ellsworth and Paterson, disagreed. They wanted a robust federal court system that could hear a wide variety of cases. At a minimum, this included any questions involving federal laws and treaties. They wanted to create a whole system of trial courts in all the states to hear a wide variety of issues.
The committee worked to form a consensus among the disparate views represented on the committee. After about three weeks, by the end of April, the committee had drafted their guiding principles for the bill.
They agreed to establish both a Supreme Court, as well as two levels of lower federal courts. The Supreme Court would consist of six judges that would convene for relatively short terms twice each year. They also agreed to establish district courts in each state. In between the district courts and the Supreme Court would be circuit courts.
These would hear appeals from the district courts. The country was divided into three circuits. One circuit would consist of New York and New England. Another would be South Carolina and Georgia. The final one would include New Jersey, Pennsylvania, Delaware, Maryland, and Virginia. Rather than appoint a whole new set of judges to sit on the circuit court, the committee would have two the Supreme Court justices serve in each circuit, with the justices sitting on a circuit court panel with a single district court judge to form a three judge panel to hear appeals from the district courts. So the justices would literally ride circuit. Each circuit court would also meet for a short period, twice each year, allowing Justices to do this double duty in both circuit courts and the Supreme Court.
The committee also agreed to some things that would limit the scope of the federal courts. One, which had been suggested by several state ratifying conventions, was to put a minimum dollar amount on civil cases that could be heard in federal court. One reason was to prevent people from being forced to travel a great distance to contest relatively small cases. Most states would have only one federal district court, meaning a person might have to travel more than a hundred miles to contest a case in federal court.
The committee tentatively agreed that a case had to be worth $300 or more. At the time, $300 was a fair amount of money, probably as much as a common laborer would earn in an entire year. This limit ensured that the majority of cases, which usually involved smaller amounts, would remain exclusively in state courts.
One area of general agreement was that federal courts would hear maritime issues. That is, cases that involved ships on the high seas. In the colonial era, these tended to be held by British admiralty courts, and were not a traditional area of jurisdiction for state courts. Members also agreed to limit Supreme Court appellate jurisdiction from state courts to issues that involved federal law. State interpretations of state law would be final and unreviewable.
With these general guidelines in place by early May, the committee was ready to start writing the bill. The records on this process are pretty sparse. There does not seem to be much official record of a subcommittee to draft the bill. But we do know that Ellsworth, Paterson, and Strong were the ones who worked together to draft the bill. All three were strong federalists who wanted a pretty robust federal court system, but were also mindful of putting in some limits to keep the anti-federalists from getting too upset.
It took the subcommittee about a month to come up with a completed bill. They submitted it to the full Senate. At the time, all Senate proceedings were secret. Unlike the House, there was no way for the public to watch the Senate, and its records were not published publicly.
The committee submitted the proposed bill to the full Senate on June 12. Under the new Senate rules, the 16 page bill would be printed and distributed to the senators for review. It would also be read, literally read out loud, to the Senate, in full, several times. After the first reading, senators could propose amendments.
Jurisdiction was a big issue. The committee recommended that the courts have jurisdiction over any questions of federal law. On the first day of debate, Lee, who had voted against the bill in committee, moved to restrict district courts to maritime and admiralty issues only. Other issues involving federal law could be argued first in state courts, then appealed to federal circuit courts. The Senate majority rejected this amendment.
They also put limits on the federal appellate courts so that they could not retry the facts that had been determined by lower courts. They could only focus on the way the laws were applied to those facts. This gave juries a final say over the facts of a case.
Part of the issues involving the judiciary got mixed in with the debate over the proposed bill of rights. I’ll address the bill of rights in an upcoming episode, but since those amendments covered a fair amount of restrictions on the courts, senators allowed those amendments to put some safeguards on the federal courts rather than putting all of it in the Judiciary Bill.
The final bill created thirteen district courts, one in each of the eleven states, plus one in Maine, which was still part of Massachusetts, and another in Kentucky, which was still part of Virginia, along with the three appellate circuits and the six justices on the Supreme Court. The final bill passed the Senate by a vote of fourteen to six. With that, the bill moved to the House of Representatives on July 20.
House Vote
The House, at the time, was busy debating the Bill of Rights. It put off debate on the Judiciary Bill until the end of August. Madison had been the key leader in getting the Bill of Rights through the House, and was expected to lead another fight over the judiciary bill. Instead, Madison took a more laid back approach. He did not make any fundamental attacks on the bill. The House ended up proposing about 50 changes, but these were all pretty minor changes. They generally accepted the structure of the courts as outlined by the Senate.
Madison seemed to convey his attitude during his closing speech on the debate. He essentially said that the bill was imperfect, but that it was late in the session and they had to get it done. Since this was a statute, unlike the constitutional amendments they had just considered before this, any problems with the judiciary bill could be fixed through statutory changes down the road.
As a result, the House passed the bill 37-16. A joint committee made a few more minor changes, but Congress passed the final bill on September 21, and signed by the president three days later. By the end of September, Congress had ended its session and the members went home.
Appointing Judges
Before they could leave though, the Senate also had to confirm some federal judges. The President had signed the bill on September 24, and the senators wanted to leave town by the end of the month. Washington had been following the Judiciary bill and had appointments all ready to go as soon as the bill was passed.
Only a few months into his term, Washington had already given up on the Constitutional requirement that he seek the advice and consent of the Senate. In early August, the Senate had rejected one of Washington’s appointments to a position as a tax collector at the Port of Savannah. Washington walked into the Senate and asked for the reasons why his appointment was rejected. The President’s sudden appearance without invitation was met with shocked silence. Eventually, one of the senators who opposed the appointment told Washington that the Senate owed him no explanation of their motives and sent the president packing.
A few weeks later Washington returned to the Senate to seek its advice on a potential treaty with some Indian tribes. Washington expected that he could discuss the proposed treaty with the senators and get their advice. Washington came armed with a copy of the proposed treaty and was prepared to answer any questions, along with his Secretary of War Henry Knox. Instead, the senators seemed to argue with each other for hours over matters of procedure. Many of them could not hear the reading of the treaty. Eventually, the Senate voted to refer the treaty to committee for deliberation and not give the President any answer. Washington, who had expected an answer right then, showed one of his rare flashes of temper as he stormed out of the Senate. After that, Washington had given up on seeking the advice of the Senate. Instead, he simply sent proposals to them for their consent.
So, when he signed the Judiciary Bill into law, Washington had not made any formal attempts to seek the advice of the Senate about his appointments. He did not even have an attorney general at this point to give him advice, since the Judiciary Act created the office of attorney general. Instead, Washington relied on informal discussions with Madison, and to a lesser extent Hamilton. This annoyed some senators on the point that the President was seeking advice from non-senators and not seeking the advice of senators as the Constitution required.
Washington had also learned his lesson with the rejection of his port collector that he needed to consult individually with legislators from the state where he was making appointments these were the people most likely to reject a nominee, often for local political reasons. By conferring with senators and congressmen from the appointee’s home state, Washington realized he could avoid many future rejections.
We don’t have much recorded about these informal discussions about nominees. We do know that Washington was concerned that the Supreme Court have some geographic diversity. There were only six justices, so not every state could be included on the court, but there was no more than appointment from each state, and the larger states were the ones represented.
Washington considered a few people for Chief Justice, including James Wilson of Pennsylvania and John Rutledge of South Carolina. In the end though, Washington wanted a leader who was known more nationally. He selected John Jay of New York. Jay, of course, was well known for his work on the peace treaty that ended the war, and was a highly respected jurist. Wilson and Rutledge both received nominations as associate justices, as did John Blair of Virginia, William Cushing of Massachusetts, and Robert Harrison of Maryland.
Washington made these nominations on the very same day that he signed the Judiciary Act into law, September 24, 1789. Despite whatever bother senators felt about their lack of input into these nominations, they confirmed all of them two days later, with no hearings, and little debate. It appears that Washington did not even confer with all of the nominees beforehand. Harrison, after being informed of his confirmation by the Senate, wrote back to refuse the appointment as associate justice.
On that same day that he appointed the Justices, in fact on the same piece of paper, Washington also appointed 13 district judges, 13 US attorneys, and 13 US marshals for each of the new Federal district courts. Again, without debate, the Senate confirmed all of them two days later.
With no good record as to why Washington chose his nominees, we cannot say for certain how he made them. Presumably, he did consult with politicians from each of the states, as well as his trusted aide, men like Madison. Lots of people were lobbying for government jobs at the time. Washington had a strict rule of not discussing nominations with anyone unless he initiated the conversation.
Decades later, Madison would comment on Washington’s process for choosing nominees:
Although not idolizing public opinion, no man could be more attentive to the means of ascertaining it. In comparing the candidates for office, he was particularly inquisitive as to their standing with the public, and the opinion entertained of them by men of public weight. On important questions to be decided by him, he spared no pains to gain information from all quarters; freely asking from all whom he held in esteem, and who were intimate with him, a free communication of their sentiments, receiving with great attention the different arguments and opinions offered to him, and making up his own judgment with all the leisure that was permitted.
A week after the Senate confirmation, Washington recorded in his diary that he had sent out all the commissions. His work on the creation of the federal courts was complete.
Next week: Congress proposes a Bill of Rights.
- - -
Next Episode 361 The Bill of Rights (coming soon)
Previous Episode 359 George Washington's Inaugural
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Further Reading
Websites
The Judiciary Act of 1789: https://www.usmarshals.gov/who-we-are/history/historical-reading-room/judiciary-act-of-1789-charter-us-marshals-and-deputies
Federal Judiciary Act (1789): https://www.archives.gov/milestone-documents/federal-judiciary-act
George Washington and the Supreme Court: https://www.mountvernon.org/george-washington/the-first-president/george-washington-and-the-supreme-court
The Jay Court, 1789-1795: https://supremecourthistory.org/history-of-the-courts/jay-court-1789-1795
Robert Hanson Harrison https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/robert-hanson-harrison
“George Washington to the United States Senate, 24 September 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-04-02-0053
“Detatched Memoranda, ca. 31 January 1820,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/04-01-02-0549
.“George Washington to Robert Hanson Harrison, 28 September 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-04-02-0067
The Judiciary Act of 1789: https://www.usmarshals.gov/who-we-are/history/historical-reading-room/judiciary-act-of-1789-charter-us-marshals-and-deputies
Federal Judiciary Act (1789): https://www.archives.gov/milestone-documents/federal-judiciary-act
George Washington and the Supreme Court: https://www.mountvernon.org/george-washington/the-first-president/george-washington-and-the-supreme-court
The Jay Court, 1789-1795: https://supremecourthistory.org/history-of-the-courts/jay-court-1789-1795
Robert Hanson Harrison https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/robert-hanson-harrison
“George Washington to the United States Senate, 24 September 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-04-02-0053
“Detatched Memoranda, ca. 31 January 1820,” Founders Online, National Archives, https://founders.archives.gov/documents/Madison/04-01-02-0549
.“George Washington to Robert Hanson Harrison, 28 September 1789,” Founders Online, National Archives, https://founders.archives.gov/documents/Washington/05-04-02-0067
Free eBooks
(from archive.org unless noted)
The Documentary History of the Supreme Court of the United States, 1789-1800 Volume One Part 2: Commentaries on Appointments and Proceedings, Columbia Univ. Press, 1985 (borrow only).
The Documentary history of the Supreme Court of the United States, 1789-1800 Volume 4, Organizing the Federal Judiciary, Legislation and Commentaries Columbia Univ. Press, 1985.
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Brown, William G. The Life of Oliver Ellsworth, New York: MacMillan, 1905.
Eisenberg, David The Judiciary Act of 1789, National Archives, 1989 (borrow only).
Maclay, William Sketches of Debate in the First Senate of the United States, in 1789-90-91, Harrisburg: Lane S. Hart, 1880.
The Documentary History of the Supreme Court of the United States, 1789-1800 Volume One Part 2: Commentaries on Appointments and Proceedings, Columbia Univ. Press, 1985 (borrow only).
The Documentary history of the Supreme Court of the United States, 1789-1800 Volume 4, Organizing the Federal Judiciary, Legislation and Commentaries Columbia Univ. Press, 1985.
Brant, Irving James Madison: Father of the Constitution, 1787-1800. Bobbs-Merrill Co. 1950 (borrow only).
Brown, William G. The Life of Oliver Ellsworth, New York: MacMillan, 1905.
Eisenberg, David The Judiciary Act of 1789, National Archives, 1989 (borrow only).
Maclay, William Sketches of Debate in the First Senate of the United States, in 1789-90-91, Harrisburg: Lane S. Hart, 1880.
Books Worth Buying
(links to Amazon.com unless otherwise noted)*
Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth, Univ. of SC Press, 2012 (borrow on archive.org).
De Pauw, Linda Grant (ed) Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791: Senate Legislative Journal (Volume 1), Johns Hopkins Univ. Press, 1972.
Marcus, Maeva (ed) Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, Oxford Univ. Press, 1992.
Ritz, Wilfred J. Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence, Univ. of Oklahoma Press, 1990.
Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth, Univ. of SC Press, 2012 (borrow on archive.org).
De Pauw, Linda Grant (ed) Documentary History of the First Federal Congress of the United States of America, March 4, 1789-March 3, 1791: Senate Legislative Journal (Volume 1), Johns Hopkins Univ. Press, 1972.
Marcus, Maeva (ed) Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, Oxford Univ. Press, 1992.
Ritz, Wilfred J. Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence, Univ. of Oklahoma Press, 1990.
