The
Circuit Riding Justices
LEONARD
BAKER
In the early
decades of the Supreme Court's history, riding circuit
for its justices meant bouncing thousands of miles over
rutted, dirt roads in stagecoach, on horseback, and
in stick gigs to bring the federal judiciary system
to the American communities strewn along the Eastern
seaboard. More so than the representatives of the federal
postal system, the justices appeared despite rain, snow,
sleet, and the hazards of traveling.
One of the
more well-known anecdotes about John Marshall has him
making the journey from his home in Richmond to Raleigh,
North Carolina, where he held Circuit Court, by stick
gig--a wooden chair supported on two wheels and two
shafts and pulled by one horse. The Chief Justice of
the United States, an elderly man at this time, often
napped as the horse pulled him along. On one occasion
the gig ran over a sapling and tilted. Marshall was
wakened by the jolt and found himself sitting at a precarious
angle, unable to move either to the left or right. He
was rescued by an elderly black man who came along and
suggested the obvious: that the Chief Justice stop trying
to move either to the left or the right, but, instead,
back up the gig. As the Chief Justice rode away, his
rescuer is supposed to have described him as "a
nice old gentleman who wasn't too bright."1
But not
all adventures of the Supreme Court judges riding circuit
ended so lightly. For Associate Justice Joseph Story
riding circuit meant traveling close to 2,000 miles
a year as he swung through New England twice a year,
to Portsmouth, Boston, and Newport in the spring and
to Exeter, Boston, and Providence in the fall. His biographer
called it a "wretched system."2
Another
Associate Justice, James Iredell of North Carolina,
described himself as a "traveling post boy"
and complained bitterly in the 1790s of traveling a
circuit of almost 2,000 miles a year. "I will venture
to say," he complained, "no Judge can conscientiously
undertake to ride the Southern Circuit constantly, and
perform the other parts of his duty."3
One Associate
Justice, Thomas Johnson, accepted appointment from President
George Washington only with the understanding that he
would avoid riding circuit. Washington informed Johnson
that, after a discussion with Chief Justice John Jay,
"the arrangement had been made or would be so agreed
upon that you might be wholly exempted from performing
this tour of duty at that time." The President
also advised Johnson that there was no cause for concern
for the future. "I take the present occasion to
observe," he wrote, "that an opinion prevails
pretty generally among the judges, as well as others
who have turned their minds to the subject, against
the expediency of continuing the Circuit of the Associate
Judges." Washington continued that he was sure
that "these disagreeable tours" would be eliminated
entirely.4
Washington,
however, was wrong. The travel duty was not halted for
another century. According to the original judiciary
act of 1789, the states were divided into three circuits--the
Eastern, the Middle, and the Southern, with a Circuit
Court composed of two Supreme Court Justices and one
district judge meeting twice a year in each area. The
Justices also had to appear in Washington twice a year,
at this time, for sessions of the Supreme Court there.
Partial
relief came quickly, in 1793, with an act of Congress
reducing the number of Supreme Court Justices on any
Circuit Court bench from two to one, thus reducing the
Circuit Court workload of Supreme Court Justices by
one-half. The rationale for this Congressional action
was the obvious displeasure of the Justices. Chief Justice
John Jay, joined by Associate Justices William Cushing,
James Wilson, John Blair, and Justices Iredell and Johnson,
had complained in a letter of the circuit riding that
"some of the present judges do not enjoy health
and strength of body sufficient to enable them to undergo
the toilsome journies through different climates and
seasons." As insurance against a possible suggestion
by either of the other two branches of government that
the present Justices resign in favor of healthier men,
Jay added that no set of judges, "however robust,"
would be able to withstand the rigors of frequent travel
over vast distances within the United States.
That letter
also included another complaint, a faint cry, but one
that was to become more loudly heard as the years progressed:
The Supreme Court was an appellate court which heard
appeals from the Circuit Courts. The Supreme Court Justices,
while sitting on that court, heard appeals from cases
they had helped decide while sitting on the Circuit
Courts. "Appointing the same men finally to correct
in one capacity," said the letter signed by Jay
and the other Justices, "the errors which they
themselves may have committed in another, is a distinction
unfriendly to impartial justices, and to that confidence
in the Supreme Court, which it is so essential to the
public interest should be reposed in it."5
A decade's
experience with the Supreme Court Justices riding circuit,
even with their duties halved by the act of 1793, resulted
in that function being ended. This was a feature of
the Judiciary Act of 1801. This act was the battleground
for one of the great struggles between the Federalists,
who were then going out of power, and the Jeffersonians,
just coming in. Tucked in with the provision for appointing
more federal judges (who would be Federalists, of course)
and reducing the size of the Supreme Court from six
to five (so as to deny an appointment to the next President,
Jefferson) was a section to eliminate the circuit riding.
John Marshall, then Secretary of State in President
John Adams' administration, considered the separation
of the two courts as "the principal feature"
in the bill.6
Other politicians,
however, were seriously concerned about other areas
in the bill. As a result, the Jeffersonian-controlled
Congress of 1802 repealed the Judiciary Act. Marshall,
by then the Chief Justice, had a much more personal
interest in the outcome. To him, the primary issue continued
to be the separation of the two courts. "There
are some essential defects in the system which will
I presume be remedied as they involve no part of political
questions," he said to a friend, "but relate
only to the mode of carrying causes from the circuit
to the supreme court. They had been attended to in the
bill lately repealed and I make no doubt will be again."7
Marshall
was, of course, wrong. Rather than "attending to"
the separation of the two courts, the Congress resurrected
the circuit riding duties of the Supreme Court Justices
with one change: the Justices were assigned specific
circuits and did not rotate. That arrangement persisted
through most of the nineteenth century.
The Justices
continued to be bothered by the rigors of the lengthy
travelling, and proposals to eliminate the circuit riding
were staples of presidential messages for many years.
Congress, however, was not receptive. "I fear,"
said Senator Abner Lacock of Pennsylvania, when faced
with such a proposal, "that gentlemen have consulted
more the ease and convenience of the judges than the
benefit of the nation, and that this will suit the judge
better than the people." In the same debate, Senator
William Smith of South Carolina turned one of John Marshall's
own achievements against the notion that the justices
should be relieved of their circuit duties.
"There
was one evidence," Smith said, that there was no
great pressure of business, given by the judges themselves.
One of them had turned historian, and had written the
history of his country in five large volumes, which
would redound to his imperishable honor, and the unspeakable
advantage of his countrymen. It now adorned the library
of every man of science. . . ." This was a reference
to the biography of George Washington, which Marshall
had written in the early part of the century and which
had irritated the Jeffersonians ever since for its Federalist
view of America's development. Smith continued: "Surely,
then, the honorable judge could not have been oppressed
by the duties of his office, or he could never have
found time to have written so elegant and voluminous
a work."8
Actually
the debate over circuit riding began to shift from the
infirmities of the Justices and the rigors of travelling
to the question of Supreme Court Justices sitting in
dual role. At first John Marshall was convinced that
he could not preside over both the Supreme Court and
a Circuit Court, "but I presume a contrary opinion
is held by the court," he continued in a letter
to his fellow Justices, "and, if so, I shall conform
to it." He acknowledged in a second letter, however,
that he opposed the procedure of requiring Supreme Court
Justices to ride circuit, regardless of the fact the
requirement had been the practice for more than a decade.
He explained that "the late discussion [in the
judiciary acts of 1801 and 1802] had produced an investigation
of the subject which from me it would not otherwise
have received." Despite his personal feelings,
Marshall indicated he would be bound by the "opinion
of the majority of the judges."
Perhaps
because he was new to the bench and unsure of his strength
there, or perhaps because his "investigation"
was not very deep, maybe because he wished to be diplomatic
or did not wish to impose his personal thoughts on the
other Justices, Marshall began to shift his opinion.
Only two weeks later when confronted with support for
the circuit riding by Associate Justice Bushrod Washington,
Marshall responded that he would be "privately
gratified" if the majority took that opinion of
Bushrod Washington's "and I shall with much pleasure
acquiesce in it."
In contrast
to this shifting by John Marshall, Associate Justice
Samuel Chase made a strong stand against the judges
holding two positions. Although his famous letter to
John Marshall is known for its opposition to the Justices
riding circuit, it should also be read as the cry of
an independent man--"my conscience must be satisfied,"
declared Chase--and also as a plea for an independent
judiciary--he argued against the right of the 1802 Congress
to abolish judgeships created by the one which passed
the Judiciary Act of 1801, saying that "the inferior
Courts . . . ought to be as independent of Congress
as the Supreme Court; but the Judges of both
Courts will not be independent of but dependent on the
Legislature, if they be not entitled to hold their offices
during good behavior."9
Chase wanted
the Justices to rendezvous in Washington to plot a strategy
of resistance to the circuit riding requirement, but
the other Justices would not go along with him. He,
too, finally acquiesced.
The issue
was settled the next year in the case Stuart v. Laird,
which placed squarely before the Supreme Court the issue
of whether its members could sit as Circuit Court judges
without specific commissions to do so. Associate Justice
William Paterson dealt with that question in his decision.
"To this objection, which is of recent date,"
he said, "it is sufficient to observe, that practice
and acquiescence under it for a period of several years,
commencing with the organization of the judicial system,
affords an irresistible answer, and has indeed fixed
the construction." He summed up: "Of course,
the question is at rest, and ought not now to be disturbed."10
Actually
support for the circuit riding of the Supreme Court
justices developed over the years for just the reason
that the Justices would have an opportunity to mix their
Washington actions with the regional experiences of
the American people they gained while out on the circuits.
Daniel Webster, for example, wrote to his friend Joseph
Story, in 1824, that as far as separating the Supreme
Court responsibilities from the Circuit Court ones "would
be convenient to the members of the court, it would
be most desirable to me to follow it." However,
Webster had to add that his "convictions of the
public interest are the other way, and are very strong."11
Webster's
opinion, that the Justices did well to keep in touch
with local law and local customs, was the prevailing
one for almost everyone outside the members of the Supreme
Court. "Adopt the system now before you,"
said one Senator of a proposal for change, "and
your supreme judges will be completely cloistered within
the city of Washington, and their decisions, instead
of emanating from enlarged and liberalized minds, will
assume a severe and local character." The critic
quickly added that his fears did not apply "to
the honorable gentlemen who now fill your bench with
so much ability, but it will result from the system,
and from human nature."12
Another
point was that the nation was well served because persons
at the local levels were able to glimpse the members
of the Supreme Court at work. And that they did. There
developed between the Supreme Court Justice when he
sat on the Circuit Court and the local members of the
bar a relationship of camaraderie and respect. There
is a description by Gustavus Schmidt, a lawyer, of Chief
Justice Marshall presiding at the Circuit Court in Richmond
during the closing years of his life. The picture is
of a friendly man sauntering into the courtroom a few
moments before the court was called to order, stopping
to chat with his friends; "no attempt was ever
made to claim superiority, either on account of his
age or his great acquirements; neither was there any
effort to acquire popularity." Rather, in those
few minutes before he took on the role of presiding
Justice, his conduct was "evidently dictated by
a benevolent interest in the ordinary affairs of life,
and a relish for social intercourse."
But the
moment John Marshall took his seat on the bench, the
Schmidt account continued, "his character assumed
a striking change. He still continued the same kind
and benevolent being as before; but instead of the gay
and cheerful expression which distinguished the features
while engaged in social conversation, his brow assumed
a thoughtfulness and an air of gravity and reflection,
which invested his whole appearance with a certain indefinable
sternness. . . ."
Marshall's
appearance in the Richmond court supported the riding
circuit rationale; the local people did receive a positive
impression of the Supreme Court Justice at work. Marshall
always acted, said Schmidt, "on the principle,
that a Court of Justice was a sanctuary, where parties
had a right to be heard . . . [that] the law had wisely
interposed a special class of agents, called lawyers,
to protect the interest of suitors . . . they acted
in behalf of the citizens of the community, for those
whose benefit the administration of justice was created,
and because the highest and lowest member of society
was entitled to equal favor in a Court of Justice."13
Sometimes,
however, the local people impressed the Justices unduly.
Joseph Story's biographer, Gerald T. Dunne, reported,
for example, that a Circuit Court decision in 1809 of
Story's (against a ban on imports from Great Britain)
was "ruled" by the "New England antiwar
sentiment."14
But that
was unusual, and the Circuit Court rulings often were
scenes in which the disputes of history were acted out.
The most famous was the Burr treason trial in Richmond
in 1807, with John Marshall presiding. But there were
others.
The John
Marshall-Thomas Jefferson dispute is one. Jefferson
and Marshall had been at odds for decades--the origins
of their dispute is attributed by legends to many causes--when
in 1811 a case came before John Marshall which specifically
involved Jefferson's financial security. Jefferson was
being sued for a seizure of property in New Orleans
that had taken place by his order when he had been President.
The case was tried before the Circuit Court in Richmond,
which is how Marshall entered the dispute.
Thomas Jefferson
assumed that the case had been parlayed to come before
Marshall in the belief that the Chief Justice would
rule against his old enemy--probably a reasonable assumption
on Jefferson's part. John Marshall was not one to allow
his better instincts to overrule his human nature when
it came to making critical remarks about Thomas Jefferson,
and he did not allow this case to go by without taking
a few snide remarks at the ex-President. But on the
point of law, nothing could overrule Marshall's integrity
as a judge. He upheld the basic point made by Jefferson's
lawyers that Marshall's court lacked jurisdiction because
the act which led to the suit (an alleged trespass of
property in New Orleans) had taken place outside of
Virginia. Common law, Marshall said, dictated that the
case be tried where the alleged trespass had taken place.
He then described common law as "really human reason
applied by the courts, not capriciously, but in a regular
train of decisions, to human affairs, for the promotion
of the ends of justice." Marshall insisted that
Virginia had adopted the common law, and "Had it
not been adopted," he said, "I should have
thought it in force."15
Another
question which the Circuit Courts dealt with before
it came before the Supreme Court was that of judicial
review. The Marbury v. Madison decision by the
Supreme Court in 1803 is the one which cemented that
power of judicial review to the Court. Sitting on the
Circuit Court three months earlier in Raleigh, North
Carolina, Marshall took a similar position that the
courts have the power to determine the constitutionality
of legislation. It was a complicated matter involving
a series of state acts having to do with estates and
creditors' claims upon those estates. In 1799 the legislature
passed a law which interpreted the intent of two earlier
laws in that area (one of 1715 and one of 1789), apparently
replacing the earlier one. The law of 1799 was challenged
before the Circuit Court at which Marshall presided.
He ruled against it, explaining that the 1799 law was
in violation of the state constitution because it assumed
a role of statutory interpretation for the legislature
that had been reserved for the judiciary.
"The
bill of rights of this state," Marshall wrote,
"which is declared to be part of the constitution,
says in the fourth section, `That the legislative, executive
and supreme judicial powers of government, ought to
be forever separate and distinct from each other.[']
The separation of these powers has been deemed by the
people of almost all of the states, as essential to
liberty. And the question here is, does it belong to
the judiciary to decide upon laws when made, and the
extent and operation of them or to the legislature?"
Marshall continued that if the judiciary did indeed
hold that power, then the act of the legislature was
an action "made by a branch of government, not
authorized by the constitution to make it; and is therefore
in my judgment, void."16
And so the
circuit riding offered the justices opportunity for
conviviality, learning from the local lawyers, thrashing
out political arguments, and testing legal theories.
There were two other points that emerged during the
discussions in those years which were placed on the
plus side for maintaining the Supreme Court Justices
on the circuits. Senator Lacock listed them both. To
separate the Supreme Court justices from their circuit
riding responsibilities, he said, "subjected the
judges of that court, by locating them in the City of
Washington, to dangerous influences and strong temptations,
that might bias their minds and pollute the streams
of national justice."
In going
on to define the "dangerous influences," Lacock
said: "The judges are to be old men when appointed,
and the infirmities of old age will every day increase,
and as the useful and vigorous faculties of their minds
diminish, in the same proportion will their obstinacy
and vanity increase. Old men are often impatient of
contradiction, frequently vain and susceptible of flattery.
These weaknesses incident to old age will be discovered
and practiced upon by the lawyers located in the same
city, holding daily and familiar intercourse with the
judge. And this, your court may become subservient to
the Washington bar. The judges, bowed down by the weight
of years, will be willing find a staff to lean upon;
and the opinion of the Washington bar is made the law
of the land. A knot of attorneys at or near the seat
of Government having gained the ear, and secured the
confidence of the court, will banish all competition
from abroad."17
Experience
attests that those "dangerous influences"
as described by Senator Lacock never had their way with
the Supreme Court Justices. Lacock, however, did not
define what he meant by "strong temptations."
Since the Senator had eight years of experience in Washington
when he spoke those words, one can assume he spoke with
some knowledge of the temptations the city of Washington
had to offer and one can regret that he did not describe
them and that the justices did not detail in their personal
papers how they countered or succumbed.
Endnotes
1 World's
Work, Feb., 1901, p. 395.
2 Gerald
T. Dunne, Justice Joseph Story and the Rise of the
Supreme Court, New York, 1970, pp.96-7.
3 Charles
Warren, The Supreme Court In United States History,
Boston, 1947 rf., v. 2, p. 86.
4 John C.
Fitzpatrick (ed.) The Writings of George Washington,
Washington, D.C., 1939, v. 31, pp. 332-3.
5 National
Archives: RG 267, SC-Office of the clerk-Letters to
and from the Justices, Box 1.
6 Naval
Documents Related to the Quasi-War Between the United
States and France-Naval Operations from June 1800 to
November 1800, Washington, D.C., 1938, v. 7, p.
98.
7 Connecticut
Historical Society: John Marshall letter, Apr. 5, 1802,
Oliver Wolcott, Jr., Mss. V. 48; no. 30.
8 United
States, Annals of Congress, v. 33, 15th
Congress, 2nd Session, pp. 130-1 (Lacock
remark), pp. 126-8 (Smith remark).
9 Massachusetts
Historical Society: John Marshall to William Cushing,
Apr. 19, 1802, R.T. Paine Letters; New York Public Library:
John Marshall to William Paterson, May 3, 1802, Paterson
Papers; Samuel Chase to John Marshall, Apr. 24, 1802,
Paterson Papers.
10 1 Cranch
299.
11 Fletcher
Webster (ed.), The Writings and Speeches of Daniel
Webster-Private Correspondence, Boston, 1903, v.
1, pp. 338-9.
12 U.S.,
Annals, v. 33, p. 126.
13 Lousiana
Law Journal, May, 1841, pp. 85-90.
14 Dunne,
p. 97.
15 2 Brockenbrough
206-11.
16 Ogden
v. Witherspoon, 2 Haywood (North Carolina)
227.
17 U.S.,
Annals, v. 33, p. 130, 131-2.
Copyright 1976, Supreme Court Historical Society
