Judiciary Act of 1789 1 Stat. 73 (1789)

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JUDICIARY ACT OF 1789 1 Stat. 73 (1789)

Article III of the Constitution constitutes an authorizing charter for a system of national courts to exercise the judicial power of the united states, but is not self-executing, needing legislation to bring it to life. Accordingly, the First Congress, in its twentieth enactment, turned to the creation of a judicial system for the new nation. Its work—the First Judiciary Act, approved September 24, 1789—has ever since been celebrated as "a great law." The statute, obeying a constitutional command, constituted a supreme court. It created the office of Attorney General of the United States. It devised a judicial organization that was destined to survive for a century. And, by providing for Supreme Court review of state court judgments involving issues of federal law, it created a profoundly significant instrument for consolidating and protecting national power.

But it is the decision of the First Congress to take up the constitutional option to establish a system of federal courts "inferior" to the Supreme Court that has been characterized as the act's "transcendent achievement." The Constitution does not require the creation of inferior courts. Nevertheless, the decision to do so came swiftly, actuated by the unanimously shared view that an effective maritime commerce—trading lifeblood for the thirteen states—needed a dependable nationwide body of maritime law, and by a consensus that the most reliable method to assure its development would be to entrust it to a distinctive body of national courts. (Far more controversy surrounded the view, also finding expression in the act, that national courts were needed to assure out-of-state litigants protection against parochial prejudices.)

The act thus created a system of federal courts of original (trial) jurisdiction, establishing a tradition that has survived without interruption to this day. On the other hand, the act gave these courts the authority to adjudicate only a small fraction of the cases and controversies encompassed by the federal judicial power, attesting to the clear contemporaneous understanding of the Constitution that it is for Congress to determine which, if any, of the cases, within the federal judicial power should be adjudicated in the first instance in a federal tribunal.

The first section of the act provided for a Supreme Court, consisting of a Chief Justice and five associates. Below this, the act created a curious bifurcated system. The country was divided into districts generally coterminous with state boundaries (Massachusetts and Virginia each had two districts), each with a district court manned by a district judge. In addition, the act divided the country into three circuits, in each of which another trial court, called a circuit court—manned not by its own judges but by two Supreme Court Justices and a district judge—was to sit twice a year in each district within the circuit. These circuit courts, in addition, received a limited appellate jurisdiction to review district court decisions. The system of circuit courts set up in 1789, with its requirement that Supreme Court Justices sit on circuit as trial judges, persisted for more than a century; it proved to be the weakest architectural feature of the first Judiciary Act.

The act exploited only a fraction of the constitutional potential for original federal court jurisdiction. Significantly, the constitutional grant of federal judicial power over cases arising under the Constitution and laws of the United States (federal question jurisdiction) was largely unused and remained so until 1875. (A notable exception was section 14, the All Writs Act, which, among other matters, authorized Supreme Court Justices and district judges to "grant writs of habeas corpus " to inquire into the legality of federal detentions.) The act made important use, however, of the power to locate litigation affecting out-of-staters in the new national courts. Thus, the circuit courts were given concurrent jurisdiction with the state courts over civil cases involving more than $500 "between a citizen of the State where the suit is brought, and a citizen of another State," as well as over civil cases involving more than $500 in which an alien was a party.

The most important grant of jurisdiction to the new district courts gave them "exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, " subject to a savings clause preserving common law remedies.

The litigation interests of the national government were given narrow recognition in the First Judiciary Act. The circuit courts were given power to adjudicate civil cases involving more than $500 in which the United States were "plaintiffs or petitioners" (suits against the United States were not contemplated); the district courts had power to adjudicate suits at common law involving $100 brought by the United States. The act gave the district courts exclusive original cognizance over certain seizures, penalties, and forfeitures. And, finally, Congress provided for the then tiny criminal business of the national government by giving the circuit courts "exclusive cognizance of all crimes and offenses cognizable under the authority of the United States," subject to a concurrent jurisdiction in the district courts to try certain minor criminal offenses.

The circuit courts were given the authority to review final decisions of the district courts in civil and admiralty cases involving more than $50 or $300, respectively. In addition, the first Judiciary Act originated the device, in continuous use ever since, of providing for pretrial removal of certain cases from state to federal court (for example, removal in civil cases to a circuit court by alien defendants and by out-of-staters sued in the plaintiff's home-state court).

The framers of the first Judiciary Act, notwithstanding the later established doctrine that the original jurisdiction of the Supreme Court does not depend on legislative grant, specified in section 13 what this original jurisdiction was to be; the listing nearly (but not completely) exhausted the constitutional grant, encompassing controversies between states, between a state and a citizen of another state, and suits involving foreign diplomats. Setting another lasting precedent, the act designated only a portion of the original jurisdiction of the Supreme Court as exclusive jurisdiction. In his opinion for the Court in marbury v. madison (1803), Chief Justice john marshall read section B to give the Supreme Court original jurisdiction over certain cases that Article III had not expressly placed within the Court's original jurisdiction. Accordingly, the Court held this narrow provision of the 1789 act unconstitutional.

Not all lower federal court decisions were made reviewable. For instance, no provision at all was made for review of federal criminal cases (which remained, in the large, unreviewable for a century). The act authorized the Supreme Court to review final judgments in civil cases decided by the circuit courts if the matter in dispute exceeded $2,000.

In its celebrated section 25, Congress asserted the constitutional authority—sustained in martin v. hunter ' sles-see (1816) and cohens v. virginia (1821)—to give the Supreme Court authority to review certain final judgments or decisions in the "highest" state court in which a decision "could be had" (language that survives to this day). Significantly, this authority did not encompass all cases involving issues of federal law: review was limited to cases where a state court had rejected a claim of right or immunity under federal law. (This limitation eventually proved to create an unacceptable institutional gap and was eliminated by the Judiciary Act of 1914.) A seminal feature of section 25 was its specification that Supreme Court review is limited to the question of federal law in the case.

The first Judiciary Act originated a fundamental structural feature of our legal topography in its section 34, called the Rules of Decision Act, providing (in language that still survives) that, except where federal law otherwise requires, the laws of the several states shall be regarded as "rules of decision" in trials at common law in the federal courts "in cases where they apply." Interpretations of this delphic provision—including the reversal from swift v. tyson (1842) to erie railroad v. tompkins (1938)—have had a significant impact on our judicial federalism. In addition, the act contained elaborate boilerplate with respect to many matters no longer of current interest, (for example, the exact days for court sessions, quorums, clerks, forms of oaths, bail).

The first Judiciary Act, passed by a Congress many of whose members had participated in the framing of the Constitution, has had a lasting effect, not only on the shape of the federal judicial system but on our thought about the constitutional and structural premises on which that system is based. Created by great statesmen, it set on foot an enterprise that 200 years later still bears its imprint.

Paul M. Bator


Frankfurter, Felix and Landis, James M. 1928 The Business of the Supreme Court: A Study of the Federal Judicial System. New York: Macmillan.

Goebel, Julius 1971 History of the Supreme Court of the United States: Antecedents and Beginnings to 1801. Pages 457–508. New York: Macmillan.

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

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Judiciary Act of 1789 1 Stat. 73 (1789)

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