Judiciary Acts of 1801 and 1802

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The Judiciary Act of 1801, commonly referred to as the "Midnight Judges' Act," was passed at a time following the Republicans' election victories in 1800 but before the Jeffersonians actually took office. It has been traditionally viewed by historians as an attempt by the outgoing Federalists to secure the judiciary, since they had lost their control of the executive and legislative branches of government. The act created sixteen new federal judgeships, each of which was filled with a Federalist appointee. These judges were to be members of newly constituted circuit courts, which were to be given an expanded jurisdiction to handle cases arising under "the Constitution and laws of the United States." The circuit courts had existed prior to the passage of the 1801 act, although with narrower jurisdiction and without specially appointed judges. The Federalists argued that their act was nonpartisan, as there was an objective need for expanded federal jurisdiction and for specially constituted circuit courts, with their own judges. There was some merit to their argument, as the circuit courts' dockets were crowded and since, more often than not, it was difficult, if not impossible, to have more than one justice sit with a district court judge.

The practice under the Judiciary Act of 1789 had been for two justices from the U.S. Supreme Court to sit on the circuit courts with a local district court judge. However, riding circuit, as it was called, proved to be onerous, given the frailty of the Supreme Court justices and the precarious state of overland transportation in the country. From the beginning, the justices had argued in vain for an end to the practice. At least one justice, James Iredell of North Carolina, is supposed to have gone to an early grave, dying at the age of forty-eight, exhausted by the practice. Two years after Iredell's death, the 1801 Act abolished circuit riding for the justices. Nevertheless, since the incoming Jeffersonians regarded the appointment of Federalist judges as anathema, because they believed that there was merit in the system of circuit riding since it kept the Supreme Court justices in closer contact with the people, and since they favored state over federal court jurisdiction, as their first legislative act the Jeffersonians in 1802 used their new congressional majority to repeal the 1801 act. They thus reinstituted circuit riding, restricted federal jurisdiction, and abolished the freestanding circuit courts created by the 1801 act.

The Constitution provided no means for removal of federal judges other than by impeachment for treason, bribery, or other high crimes and misdemeanors. Article III vested the judicial power "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish," and the Jeffersonians read this provision as giving them authority to abolish as well as to create federal courts. They argued, in other words, that they were not removing judges, only courts, but the sixteen new Federalist circuit judges were still out of their jobs. Many Federalists and at least one Supreme Court justice, Samuel Chase, viewed the repeal of the 1801 act as unconstitutionally removing judges without benefit of impeachment; he wrote Chief Justice John Marshall that the Supreme Court should make that declaration. The constitutional terms were certainly ambiguous, but since only a simple majority was required in both houses of Congress to abolish courts, and an express two-thirds majority of the Senate to remove judges by impeachment, it would seem that Chase and the Federalists had the better argument.

In order to avoid an adverse Supreme Court decision immediately regarding the Judiciary Act of 1802, the Republicans postponed the Court's next term until February 1803. That term saw John Marshall make a powerful statement supporting the power of judicial review of congressional and executive acts in Marbury v. Madison (1803). In that case, he declared that the Jeffersonians had wrongly failed to deliver a commission to a Federalist appointee pursuant to a statute, passed contemporaneously with the 1801 Act, creating several new Federalist justices of the peace. But since Marshall declared unconstitutional a provision of the 1789 judiciary act that gave the Supreme Court jurisdiction to issue a mandamus compelling that the commission be granted, he held that he was without power to act, thus avoiding a battle with the Jeffersonians and signaling that the Court was not likely to overrule the repeal of the 1801 Act. When the Court had the opportunity directly to rule on the issue, in Stuart v. Laird (1803), the Court, as expected, upheld the repeal act. The restrictions on federal jurisdiction remained in effect until well after the Civil War, and thus the lower federal courts were not particularly important to the development of the nation for many years.

See alsoJudiciary Act of 1789; Supreme Court .


Haskins, George L., and Herbert A. Johnson. History of the Supreme Court of the United States. Vol. 2, Foundations of Power: John Marshall 1801–1815. New York: Macmillan, 1981.

Turner, Kathryn. "Federalist Policy and the Judiciary Act of 1801." William and Mary Quarterly 22 (1965): 3–32.

Whichard, Willis P. Justice James Iredell. Durham, N.C.: Carolina Academic Press, 2000.

Stephen B. Presser

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Judiciary Acts of 1801 and 1802

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