The Early Circuit Court System¹

by
The Honorable Harry Phillips

There was substantial disagreement among the delegates to the Constitutional Convention in Philadelphia concerning the establishment of a federal judiciary. The issue was whether there should be any inferior federal courts at all or just a single supreme court. This dispute was resolved in Philadelphia, as were many others, by compromise, with the Constitution providing: "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish."

The "transcendent achievement", as Justice Frankfurter put it, of the Judiciary Act of 1789² was the congressional decision to exercise the constitutional option of establishing a system of federal trial courts. This Act provided for three courts: the Supreme Court, the circuit court, and the district court. At first blush this would suggest an early creation of our present system, but the original circuit court was not the same as the Circuit Court of Appeals established more than a century later.

In the first judiciary act, Congress created two types of inferior courts. Thirteen district courts were created with jurisdiction over minor federal criminal cases and in areas such as admiralty and bankruptcy. Three circuit courts--the forerunners of our present Courts of Appeals--were established to exercise appellate jurisdiction over district court decisions and original jurisdiction in diversity and major federal criminal cases.

Unlike the district courts, the circuit courts were not provided with full-time judges. Instead, two justices of the Supreme Court and one district judge from the circuit constituted a three-judge panel, with any two members constituting a quorum. Because of the onerous burden of riding circuits thus placed upon the Supreme Court Justices, Congress four years later provided that only one justice need sit on a circuit panel.³

In the famous "Midnight Judges" Act of 1801,⁴ Congress expanded the number of circuits to six, provided for independent circuit court judgeships, and abolished the necessity of Supreme Court Justices riding the circuits. It was this legislation which created the grandfather of the present Sixth Circuit. The act provided for a "Sixth Circuit" comprised of two districts in the State of Tennessee, one district in the State of Kentucky and one district, called the Ohio District, composed of the Ohio and Indiana territories (the latter including the present State of Michigan).⁵ The new Sixth Circuit Court was to be held at "Bairdstown" in the District of Kentucky, at Knoxville in the District of East Tennessee, at Nashville in the District of West Tennessee, and at Cincinnati in the District of Ohio. Unlike the other circuits which were provided with three circuit judges, the Sixth Circuit was to have only one circuit judge with district judges from Kentucky and Tennessee comprising the rest of the court. Any two judges constituted a quorum. New circuit judgeships were to be created as district judgeships in Kentucky and Tennessee became vacant.

Pursuant to the "Midnight Judges" Act, President John Adams in 1801 appointed William McClung of Kentucky as the first Sixth Circuit Judge. It was thought that Judge McClung did not sit as a federal judge, but according to historian Mary K. Bonsteel Tachau, "McClung did sit on the Sixth Circuit bench during each of the three terms of its existence."⁶ Congress, however, repealed the 1801 Act the following year. Instead, under the Act of 1802, circuit riding again became the duty of Supreme Court Justices.

Thereafter, as the nation grew and new states entered the Union, Congress periodically realigned some of the circuits. The result was that the boundaries of the Sixth Circuit underwent some changes before being firmly established in their present state in 1866. Four years after the admission of Ohio as a state in 1803, Congress created what was then designated the Seventh Circuit, consisting of Ohio, Kentucky and Tennessee.⁷ With a total of four districts, court was held in Frankfort, Nashville, Knoxville, and Chillicothe. When Michigan entered the Union in 1837, it was first grouped with Ohio, Indiana and Illinois to form the Seventh Circuit. Kentucky and Tennessee were joined with Missouri to create the Eighth Circuit.⁸

The most radical realignment of the present Sixth Circuit states occurred in 1862 when Congress grouped Ohio and Indiana together as the Seventh Circuit while combining Michigan with Illinois and Wisconsin to form the Eighth Circuit. Kentucky and Tennessee were joined with Louisiana, Arkansas and Texas in what was then called the Sixth Circuit.⁹ Because of the Civil War, however, this realignment had little practical affect. Immediately after the War, Congress restored the geographical boundaries of the Sixth Circuit substantially to those established in 1801 and they have remained unchanged since.¹⁰ The States of Michigan, Ohio, Kentucky and Tennessee have comprised the Sixth Circuit continuously for 136 years.

In the period immediately after the Civil War, Congress also recreated the office of Circuit Judge to relieve Supreme Court Justices of some of the burdens of circuit duty. Under the Act of April 10, 1869,¹¹ one circuit judge was to be appointed to each of the circuits. On January 17, 1870, President Ulysses S. Grant appointed Halmer H. Emmons as the circuit judge for the Sixth Circuit. Born in Saratoga County, New York, in 1814, Emmons had studied law in his father's law office in Detroit and had risen to prominence as a lawyer in that city. During the Civil War, he had served as a Union secret agent in Canada. He presided over the circuit until his death in 1877.

Emmons' successor as circuit judge was John Baxter of Knoxville, Tennessee. Baxter was born in Rutherford County, North Carolina, on March 5, 1819, and studied law under Simpson Bobo of South Carolina. He practiced law in Rutherfordton and Hendersonville, North Carolina, before moving to Knoxville in 1857. He remained loyal to the Union cause and served as Chairman of the Judiciary Committee in the Constitutional Convention in 1870 which drafted Tennessee's present Constitution. Appointed circuit judge by President Rutherford B. Hayes on December 18, 1877, he served in that capacity until his death April 2, 1886. Baxter was succeeded by Howell E. Jackson of Tennessee who was appointed circuit judge by President Grover Cleveland on April 12, 1886. Five years later, Jackson was to become the first judge of the newly organized Court of Appeals for the Sixth Circuit, and was appointed to the Supreme Court in 1893.

The old circuit court was the weak point in the original federal court system. Yet the circuit courts remained a part of the federal judiciary for twenty years after the creation of the Courts of Appeals. In 1911, the Federal Judicial Code abolished the old circuit courts and transferred their jurisdiction to the district courts, which survive as the only federal trial courts.¹²