The Circuit Riding Justices

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, 15^th Congress, 2^nd 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.

Yearbook 1977 Supreme Court Historical Society