The Politics and Law of 1801-02 (I)
Bill Long 11/2/07
From Judiciary Act of 1801-Judiciary Act of 1802
Events in American public life were pregnant with significance between the signing of the Judiciary Act of 1801 into law on February 13, 1801 by (lame-duck) President John Adams and the signing of the Judiciary Act of 1802 by President Thomas Jefferson on April 29, 1802. Sometimes you read online or in other places that the Act of 1802 was signed in March. Not true. But you do have two dates of importance to note: March 8, 1802 was the date of Congressional repeal of the Judiciary Act of 1801 ("Act of 1801" or "Act"); April 29, 1802 was the date Jefferson signed the new Judiciary Act of 1802. The purpose of this and the next essay is to lay out some of the issues which arose in the 14 months between the enactment of these Acts of Congress.
I. Thomas Jefferson's Pique
Jefferson and the Republicans were enraged that the Federalist-controlled Congress would ram through the Act of 1801 in the waning days of the lame-duck Sixth Congress (he became President less than three weeks later, on March 4, 1801). Their "rage" has controlled much of the subsequent historiography or interpretation of that Act. A "Jeffersonian" view of the Act of 1801 emphasizes it as a desperate effort of defeated Federalists to try to perpetuate themselves in the judiciary once they had been soundly trounced in the Congress and had lost the White House. As we saw, this new law created 16 new circuit judgeships (in the six new/revamped circuits), to bring the number of federal judges to 38. I haven't seen a full listing of who those 38 were (6 Supreme, 16 Circuit are certain; but is it 16 District? or 13 District and three DC? or some other number? And, what are the Districts at this point which have a Judge?).
The Jeffersonian interpretation also stresses that the election of 1800 was a "revolution" in American life, a sort of 2nd American revolution. Whereas the 1st was a separation from Britain, this 2nd was a recognition of the popular spirit in America. Federalists, who were the few, the proud,....the rich, were sent packing once and for all, even though their influence seeped into the judiciary through the "activist" principles of Chief Justice John Marshall. As a result, as early as his frst annual address to Congress (Dec. 8, 1801), Jefferson pushed for the repeal of the recently passed Judiciary Act of 1801. In elevated, but unmistakably pugilistic, language, he said:
"The judiciary system of the United States, and especially that portion of it recently erected, will of course present itself to the contemplation of Congress: and that they may be able to judge of the proportion which the institution bears to the business it has to perform, I have caused to be procured from the several States, and now lay before Congress, an exact statement of all the causes decided since the first establishment of the courts, and of those which were depending when additional courts and judges were brought in to their aid."
In other words, Jefferson would not only want Congress to repeal the Act, but he would provide "data" to Congress showing that there really was no need for the multiplication of Courts and Judges. Thus, he could justify his desire to repeal because of the fact that federal dockets weren't large enough to justify the increased size of the federal courts.
II. An Alternative Interpretation
The Jeffersonian interpretation is still presented pretty much as "Gospel" in American classrooms today, but I think there are good reasons not to let the eloquent pen of Thomas Jefferson sway us 206 years later. Consider the following. The Federalists had long desired to pass a court reform bill before the Feb. 13, 1801 date. Adams had frequently mentioned it in his addresses to Congress and a bill substantially similar to one finally passed in Feb. 1801 was introduced the previous March in Congress. I haven't seen any good treatment on why the law wasn't passed then, but it did take on new urgency after the loss of Congress and the White House late in 1800. Thus, the idea had been "brewing" for a long time.
Second, the law was a good one, inasmuch as it eliminated circuit riding responsibilities of the Supreme Court justices. That rather unrealistic requirement of the Judiciary Act of 1789, required two, yes two Justices to hold court with the District Court judges twice a year. A 1793 Act loosened the requirement, to be sure, but until 1801 the Justices were still required to ride circuit.
Complaints from the Justices regarding this requirement were vented almost as soon as the ink on the 1789 Act was dry. The three major complaints were the age of the justices, the dangers incident in signficant travel, and the need to have some "scholars" in the law who required time and study to begin to shape a unique brand of American law. The 1801 Act was perfectly attuned to these critiques and would eliminate completely the circuit riding duties of the Justices. In addition, the new sixteen judgeships would only cost the federal government $31,500. Of course there were tons of other federal officials "created" through this act--US Attorneys, federal marshalls, clerks, etc., but the opposition to the Act only emphasized the judges.
But if you really wanted to get mad at a bloated federal bureaucracy, the Republican-controlled Congress should have been enraged at the other Act passed in the waning days of the Sixth Congress--the District of Columbia Organic Act (Feb. 27, 1801). This Act allowed an unspecified number of new Justices of the Peace, as well as registers of wills and other (federally-paid) officers. John Adams named 42 or 43 (I have seen both numbers) Justices of the Peace alone under this Act. They had five year terms. Where is the Repulican outrage for this blatant act of party spirit?
Finally, when you look at the numbers of the new judgeships created, you aren't that moved. Sixteen new positions were created, which Adams was supposed to have filled with Federalists appointees. But the three appointments in the Fifth Circuit all refused to serve, thus opening up all the appointments for Jefferson. In addition, one of the judges of the 1st Circuit died in May, 1801, giving Jefferson yet another appointment. Thus, fully 25% of the appointees could be Jefferson's within three months of the signing of the Act. Things just weren't that bad.
Thus, I tend to see the Judiciary Act of 1801 as a good piece of legislation that admittedly did have a pro-Federalists bias to it. Jefferson's raging desire to get rid of it is understandable in the toxic partisan atmosphere of 1801; it is less defensible from the cool perspective of our "soft-core" partisanship today.
Let's continue "massaging" the events between the two Acts.
Copyright © 2004-2009 William R. Long