1. U.S. Const. Art. III, § 2.

2. Judiciary Act of Mar. 3, 1875, ch. 137, §§1, 2, 18 Stat. 470.

3. See. e.g., Katz, Al, ‘The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood’, 117 University of Pennsylvania Law Review 1 (1968CrossRefGoogle Scholar); Mishkin, Paul J.. ‘The Federal “Question” in the District Courts’, 53 Columbia Law Review 157 (1953CrossRefGoogle Scholar); Chadbourn, James H. and Levin, A. Leo, ‘Original Jurisdiction of Federal Questions’, 90 University of Pennsylvania Law Review 639 (1942CrossRefGoogle Scholar); Note, ‘The Outer Limits of “Arising Under”’, 54 New York University Law Review 978 (1979Google Scholar). See also infra note 43 and accompanying text.

4. Judiciary Act of Feb. 13, 1801, ch. 4, 2 Stat. 89.

5. Hobby v. Day, discussed in parts II and III, infra note 29.

6. See generally, e.g., Onuf, Peter S., The Origins of the Federal Republic: Jurisdictional Controversies in the United States 1775-1787, (Philadelphia, 1983) 149–209Google Scholar. I am indebted to Sandra vanBurkleo and Tony Freyer for bringing this volume to my attention.

7. Today, usage demands that important statutes allocating federal jurisdiction be called ‘Judiciary Acts’. Congress did not utilize this term in the early period, nor was apparently it a term of common parlance then. The first act dealing with the federal courts was called ‘An Act to establish the Judicial Courts of the United States’, Sept. 24, 1789, ch. 20, 1 Stat. 73, while the Federalist statute which revised the scheme in large part was called ‘An Act to provide for the more convenient organization of the Courts of the United States’, Feb. 13, 1801, ch. 4, 2 Stat. 89. These have come respectively to be known, however, as the Judiciary Act of 1789 and the Judiciary Act of 1801, and so they will be called (and cited to) henceforth in this essay. This usage is also followed with other similar Acts.

The Judiciary Act of 1789 made no reference to cases ‘arising under’ federal law, not even in its grant of appellate jurisdiction from state courts to the Supreme Court. See Judiciary Act of 1789, §25.

8. U.S. Const. Art. I, §8, cl. 7.

9. U.S. Const. Art. I, §8, cl. 3.

10. See An Act to promote the progress of the useful Arts; and to repeal the act heretofore made for that purpose, Feb. 21, 1793, ch. 11, §§5, 6, 1 Stat. 322; An Act to establish an uniform System of Bankruptcies throughout the United States, Apr. 4, 1800, ch. 19, §58, 2 Stat. 35 [hereinafter cited as Bankruptcy Act of 1800]. See also Judiciary Act of 1801, §12 (backstop grant of bankruptcy jurisdiction).

11. Wilfred Ritz has argued that the absence of an express ‘arising under’ grant of jurisdiction in the Judiciary Act of 1789 did not necessarily mean that there was no federal question jurisdiction in the federal courts. The constitutional provision might have been deemed mandatory or self-executing. See Wilfred J. Ritz, ‘Rewriting the History of the Judiciary Act of 1789: Exposing Myths, Challenging Premises, and Using New Evidence’, 67-75 (unpublished manuscript, 1983 version, in possession of its author); Clinton, Robert N., ‘A Mandatory View of Federal Court Jurisdiction: A Guided Quest for the Original Understanding of Article III’, 132 University of Pennsylvania Law Review 741 (1984CrossRefGoogle Scholar). I am most grateful to Professor Ritz for his invitation to read his work in manuscript.

12. Wilfred Ritz has made a careful and convincing study of these cases and problems, insofar as evidence of sloppiness or fictitious allegations to obtain jurisdiction is given in early Supreme Court decisions. See Wilfred J. Ritz, ‘The Expansion of Federal Court Jurisdiction in 1789-1798 By the Use of Jurisdictional Fictions’, esp. pp. 17-21 (unpublished manuscript, 1983 version, in its author's possession). See also Goebel, Julius Jr., History of the Supreme Court of the United States: vol. 1, Antecedents and Beginnings to 1801, (New York, 1971) 586-89, 683–85Google Scholar.

13. In a very important sense, I have already violated my own canon of construction, in the manner in which I have catered to modern thinking in the paragraph in the text preceding this superscript. The rhetoric of this paragraph presumes that federal jurisdictional grants are to be closely and strictly construed, so that plaintiff's allegations concerning jurisdiction must be precise. That is the sense of things ingrained into us by our modern legal education and experience, but it is anachronistic to transport this assumption back into the 1790s, using it to characterize plaintiffs’ jurisdictional allegations as ‘loose’ or ‘fictitious’.

Those in favor of strong central government would have concomitantly desired a broad and generous federal court jurisdiction, and not only would they have tended to file at least somewhat broadly or ‘loosely’ phrased pleadings as a matter of course but they would have also had an expectation of generous construction by sympathetic judges. Those of the states' rights persuasion would have desired a restricted federal court jurisdiction and would have argued for a strict, narrow approach to allegations concerning jurisdiction. Since this was a matter of serious dispute, it is misleading to use language which in effect takes one side of that dispute as being correct or timelessly ‘normal’. I have occasionally used such language nevertheless since the lulling effect of its familiarity heightens the dramatic tension of an otherwise pedestrian legal history essay when finally contrasted with the strange, outlandish nature of the Federalist views of jurisdiction in 1800-02.

14. Here I am guilty of shorthand of a different sort. Many budding urban entrepreneurs, shopkeepers, and other more modern capitalists were adherents of Jefferson and of laissez-faire, but the banking, land-speculating, aristocratic ‘old’ wealth which provided much of the support for the Federalist vision of a government-nurtured and controlled economy did not cotton much to the newcomers' version of ‘commerce’, and thus concluded that the Jeffersonians were ‘anti-commercial’. See generally Applcby, Joyce, Capitalism and a New Social Order: The Republican Vision of the 1790s, (New York and London, 1984), 88–94Google Scholar, passim; Nash, Gary B., The Urban Crucible: Social Change, Political Consciousness, and the Origins of the American Revolution (Cambridge and London, 1979CrossRefGoogle Scholar).

15. A flavor of the extreme fears and apprehensions entertained by the Federalist Party in the period 1800-02 can be gained by reading the debates in Congress over repeal of the Judiciary Act of 1801. See Debates and Proceedings in the Congress of the United States Vols., (Washington, 1851) xi, 23-184, 362-65, 475-81, 510–985Google Scholar [hereinafter cited as Annals of 7th Congress, without cross-reference to this footnote].

16. Samuel Sewall to Theodore Sedgwick, Dec. 29, 1800, in Sedgwick I Collection, Massachusetts Historical Society.

17. Leven Powell to Burr Powell, Mar. 26, 1800, Leven Powell Papers, Tucker-Coleman Collection, The College of William and Mary.

18. Ch. 4, 2 Stal. 89.

19. See generally Turner, Kathryn, ‘The Midnight Judges’, 109 University of Pennsylvania Law Review 494 (1961CrossRefGoogle Scholar).

20. Judiciary Act of 1801, §11.

21. See generally Presser, Stephen B. & Zainaldin, Jamil S., Law and American History: Cases and Materials (St. Paul, 1980) 208–34Google Scholar; Smith, James Morton, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties, (Ithaca, 1956), esp. pp. 202-220, 385–90Google Scholar; Levy, Leonard Williams, Jefferson and Civil Liberties: The Darker Side (Cambridge, 1963) 42–69Google Scholar; Malone, Dumas, Jefferson the President: First Term, 1801-1805 (Boston, 1970) 225–35Google Scholar. I am indebted to Kathryn Preyer and Steven Hochman for this point.

22. Those records of the case which survive are to be found in the Federal Archives and Records Center in East Point, Georgia. The minute books of the Fifth Circuit, accessible also on microfilm, record the procedural outlines and dates of court action in each case; the minutes contain, for example, the nature of the jurisdictional claim made by the defendants' plea to jurisdiction, namely that all of the parties were Georgia citizens. The details of the pleading, and the history of the marshal's several attempts to execute the judgment, are to be found in the file of the case. The quotations in the text arc taken from Hobby's pleading.

23. Thomas Jefferson to James Madison, Feb. 1, 1801, James Madison Papers. Library of Congress. See also Uriah Tracy to Theodore Sedgwick, Jan. 29, 1802, John Rutledge to Sedgwick, Feb. 17, 1803, both in Sedgwick I Collection, Massachusetts Historical Society (both worrying about Republican tampering with Federalist mail in the post offices).

24. Gideon Granger to W.J. Hobby, Jan. 16, 1802, Augusta Herald, Feb. 3, 1802, reprinted in Washington Federalist, Feb. 19, 1802. Hobby printed Granger's letter and his own reply (see the next footnote) in the Augusta Herald, and they were then picked up and printed by the Federalist press elsewhere.

25. W.J. Hobby to Gideon Granger, Feb. 1, 1802, Augusta Herald, Feb. 3, 1802. reprinted in Washington Federalist, Feb. 19, 1802.

26. [Savannah] Georgia Republican & State Intelligencer May 2, 1803. See also Augusta Herald, June 1, 1803.

27. Brigham, Clarence S., History and Bibliography of American Newspapers 1690-1820, 2 vols. (Worcester, 1947) i, 115Google Scholar.

28. Annals of 7th Congress 796-97 (remarks of John Milledge of Georgia). See also ibid, at 753 (remarks of John Rutledge of South Carolina).

29. Plaintiff's pleading and defendants' pleas to jurisdiction, Case File, Hobby v. Day, Fifth Circuit, Federal Archives and Records Center, East Point, Georgia.

30. See Minute Book, Fifth Circuit, Dec. 17, 1801, Federal Archives and Records Center, East Point, Georgia. Two of the other pleas to jurisdiction were upheld, but they did not deal with an attempted assertion of federal question jurisdiction. I have been unable to locate the papers in the fourth case. The actual text of the rule is also not extant; all we have is the notation made in the minute book.

31. Cf. Wilfred Ritz, ‘Jurisdictional Fictions’, supra note 12, 56-72.

32. For the full story of Adams' ‘midnight’ appointments to the federal bench in February 1801, see my forthcoming article concerning the Judiciary Act of 1801. There were supposed to be three judges in the Fifth Circuit, but Jefferson never appointed a Circuit Judge for Georgia. See, e.g., Augusta Herald, Jan. 19, 1802. He advised his own Fifth Circuit appointees that he considered their tenure to be temporary, as he began to work for repeal of the Judiciary Act of 1801 (which created their offices) from the moment he became President. See, e.g., Thomas Jefferson to Nathaniel Macon, May 14, 1801, Nathaniel Macon Papers, University of Virginia. (Jefferson used the advice of his party lieutenants in the Southern states concerning these key appointments, and Congressman (soon Speaker) Nathaniel Macon was his chief henchman in North Carolina; thus the letter went to Macon instead of Potter.)

33. See supra note 32 and infra note 70 and accompanying text.

34. An act to repeal certain acts respecting the organization of the Courts of the United States; and for other purposes, Mar. 8, 1802, ch. 8, 2 Stat. 132; see my forthcoming article which will deal with the Jeffersonians' repeal of the Judiciary Act of 1801 and passage of their own Judiciary Act of 1802.

35. It is somewhat surprising, if jurisdiction was sustained on ‘federal question’ grounds, that the suit was not dismissed in 1803 for want of jurisdiction, since the ‘federal question’ grant had by then been repealed, but perhaps ambiguous language in the repealer was held to sustain the suit. The repealing legislation clumsily provided that all suits which had been brought under the 1801 Act ‘shall be … continued over’ to courts established by the repealer, restoring federal jurisdiction as it had been under the 1789 Act. An Act to repeal certain acts respecting the organization of the Courts of the United States; and for other purposes, Mar. 8, 1802, ch. 8, §4, 2 Stat. 132. This could have been construed to prevent abatement, although it could also have been construed either to apply only to actions under the 1801 Act which would have been proper under the 1789 Act or to permit the new courts to apply rules of abatement as they saw fit.

In one of the few other cases in which the question of abatement due to repeal might have been raised, Justice Samuel Chase riding circuit in Delaware in 1804 dismissed a suit brought under the 1801 Act when it appeared that the amount in controversy required for federal jurisdiction in such suits by the 1789 Act, but not required in such suits by the 1801 Act, was lacking. See Penn's Lessees v. Pennington, minute book, Third Circuit, Federal Archives and Records Center, Philadelphia, Pennsylvania (case files do not survive); Rodney, Richard S., ‘The End of the Penn's Claim to the Delaware: Some Forgotten Lawsuits’, Pennsylvania Magazine of History and Biography, lxi (1937) 182Google Scholar (discussion of Chase's bench opinion, which survives in notes taken at trial by one of the lawyers). The heirs of William Penn claimed title to all of Delaware, but the legal means of asserting this staggering claim was a series of ejectment suits founded on diversity of citizenship, in each of which the title to a single plot of land was at issue. Pennington was one of those ejectment suits. The 1789 Act required a $500 minimum amount in controversy for diversity suits, but the 1801 Act expressly waived any minimum amount in controversy for suits involving title to land, and apparently none of the Delaware plots was individually worth $500. Compare Judiciary Act of 1789, §11, with Judiciary Act of 1801, §11.

At least three other nondiversity cases were retained in federal court after the 1802 repeal, two of them despite counsel's argument that jurisdiction had been destroyed by repeal, but all three were bankruptcy cases and the Bankruptcy Act of 1800 (not repealed until 1803) contained its own grant of jurisdiction, see Bankruptcy Act of 1800, §58; supra note 6 and accompanying text, so that the repeal of the backstop grant of bankruptcy jurisdiction contained in section 12 of the 1801 Act did not withdraw federal jurisdiction over such actions. See Rogers v. Sullivan; Sullivan v. Lowell, case files & minute book, First Circuit, Federal Archives and Records Center, Waltham, Massachusetts (pleas to jurisdiction argued in October 1802 term); Barnes v. Billington, case file & minute book, Third Circuit, Federal Archives and Records Center, Philadelphia (case brought in October 1801, tried in October 1803; no plea to jurisdiction noted).

36. See Augusta Herald, May 18, 1803. The apprentice apparently would have been a shaky witness. See ibid., May 18, June 1, 1803.

37. Despite their refusal to pay the judgment, Day and Hely apparently ran into financial difficulty, as they suspended publication of the Trumpet after the jury verdict from June until November 1803. Clarence S. Brigham, American Newspapers, supra note 27, 117-18.

38. Case file, Hobby v. Day, Fifth Circuit, Federal Archives and Records Center, East Point, Georgia.

39. No minutes of the court's opinion on the jurisdictional question survive in the case files. The pleas to jurisdiction merely bear the notation ‘overruled’. No number of the Trumpet survives for the period December 1801 through November 1803. No newspaper of which we do have surviving numbers recorded or reported on the jurisdictional arguments made in December 1801, not even the Herald.

40. It is possible that the defendants might have erroneously believed themselves to be Georgia citizens. Citizenship was not clearly defined at that time; Georgia was still a raw frontier state, recently populated, with many of its residents transients or born elsewhere. Persons who considered themselves citizens of a state might not have been adjudged so by a court.

The famous Jeffersonian newspaper editor William Duane was sued in the fall of 1801 for libel by a Federalist editor. Duane defended on grounds that neither diversity jurisdiction nor alienage jurisdiction existed, since he was, he thought, a citizen of Pennsylvania just like the plaintiff. Duane had been born in what became Vermont, and had spent much of his youth in Pennsylvania, but had been taken by his mother back to Ireland (her home) when he was about 13 years old, in 1774. He did not return to the United States until 1795, when he settled in Philadelphia. The three Federalist circuit judges of the Third Circuit had no difficulty in holding him to be a subject of the British King, finding neither the locale of his birth (which was of course British at the time) nor his later resumption of Pennsylvania residence to be sufficient to negate the facts that he did not reside on United States soil when independence was declared (even though his removal was involuntary), and that he did not aver a declaration of loyalty to the United States when he reached 21. Hollingsworth v. Duane, J.B. Wallace 51 (C.C.D. Pa. 1801). Still protesting, Duane soon took out naturalization papers. James Morton Smith, Freedom's Fetters, supra note 21, 278, n.4.

41. See 28 U.S.C. §§1339 (‘any civil action arising under any Act of Congress relating to the postal service’); 1340 (‘any civil action arising under any Act of Congress providing for internal revenue, or revenue from imports and tonnage’); 1345 (‘all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress’); 1352 (‘any action on a bond executed under any law of the United States’); 1355 (‘any action or proceeding for the recovery or enforcement of any fine, penalty, or forfeiture, pecuniary or otherwise, incurred under any Act of Congress’); 1357 (‘any civil action … to recover damages for any injury to his person or property on account of any act done by him, under any Act of Congress, for the protection or collection of any of the revenues, or to enforce the right of citizens of the United States to vote in any State’) (1983).

42. See 28 U.S.C. §1442 (1983) (limited to United States officers who are officers of courts, for acts under color of office; to officers of either House of Congress, for the discharge of official duties; and to officers who apprehend or punish criminals and who collect revenue, for acts under color of office or on account of authority vested in them).

43. Sec, e.g., Martin v. Wyzanski, 262 F. Supp. 925 (D. Mass. 1967) (no federal question jurisdiction over libel suit brought against a federal judge, where there was no controverted issue of federal law). See also, e.g., Johnston v. Earle, 245 F.2d 793, 795 (9th Cir. 1957) (‘the mere fact that a suit is against a federal officer does not support original jurisdiction … on the ground that it is a case arising under the laws of the United States’); Viles v. Symes, 129 F.2d 828 (10th Cir. 1942). These cases all involve attempts to assert federal jurisdiction over federal officials as defendant, but the principle should apply equally well to cases like that brought by Hobby, and the very absence of instances of attempted suit by federal officials indicates a great deal about their acceptability.

44. ‘Two things arc necessary to the existence of a federal question: first, an actual dispute between the parties as to the meaning of some law of the United States; second, materiality of the construction of such law to a determination of the cause.’ California Oil Co. v. Miller, 96 Fed. 12 (C.C.D. Cal. 1899). Leading cases are: Gully v. First Nat'l Bank, 299 U.S. 109 (1936); Tennessee v. Union & Planters Bank, 152 U.S. 454 (1894); Gold-Washing & Water Co. v. Keyes, 96 U.S. 199 (1878). See also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821).

45. See, e.g., Blevins v. Hines, 264 Fed. 1005 (W.D. Va. 1920).

46. 22 U.S. (9 Wheat.) 738 (1824). As Part III of this essay will demonstrate, Marshall's expansiveness in Osborn by no means interpreted the Constitution as broadly as might have been done. Marshall, one of the drafters of the Judiciary Act of 1801, presumably was aware of the broader arguments before he wrote Osborn, but they are not alluded to in his opinion.

47. One reasonably concise presentation of what has been and will be herein called the Federalist position, since no Jeffersonian is on record as accepting it, is given in the speech of Representative Roger Griswold of Connecticut during the momentous debate of repeal of the Judiciary Act of 1801. See Annals of 7th Congress 767-71 ff. Some Federalists had made similar arguments with respect to the common law of crimes during the 1798 debates on adoption of the Sedition Act. See Julius Goebel. Jr., Antecedents and Beginnings, supra note 12, 634.

Not all Federalists accepted this argument, however. Robert Goodloe Harper, who was to be one of the Federalist drafters of the 1801 Act, rejected the notion of a federal common law jurisdiction during the just-mentioned 1798 debates. See Kathryn Preyer. ‘Joseph Story, The Supreme Court and the Question of Federal Common Law Jurisdiction over Crimes’, 9 and n.22 (unpublished essay, 1983 version, in its author's possession). Justice Samuel Chase expostulated against the existence of such a jurisdiction in his famous opinion in United States v. Worrall, 28 Fed. Cas. 774, 778-79 (No. 16766) (C.C.D. Pa. 1798), but it is significant that in the same case ‘after a short consultation’, ibid, at 780, Chase permitted the defendant charged with a common-law offense to be pronounced guilty and sentenced to prison. The speculation of Francis Wharton that Chase hastily sought the views of his Federalist Supreme Court brethren, who in 1798 would have also been in Philadelphia, and who were probably among those ‘surprised’ at his apostasy, Wharton, Francis, State Trials of the United States During the Administrations of Washington and Adams (Philadelphia, 1849) 199n.Google Scholar, is I think a sound interpretation of events. It is clear that Chief Justices John Jay and Oliver Ellsworth (principal draftsperson of the 1789 Act) and Justices James Iredell and William Paterson all understood a federal common-law criminal jurisdiction to exist, and it is probable that Justices James Wilson and Bushrod Washington, that is to say six of the 12 Justices (all Federalists) who sat upon the Supreme Court up to 1801, accepted this position. Only the chameleon Chase is on record as opposed to it, among all Federalist judges during this period. I think that, while many Federalists and those who would become Federalists might have taken an equivocal or even a states’ rights position on the issue of a federal common-law jurisdiction during the early and mid-1790s, between 1798 and 1801 the dangers of a Jacobin takeover pushed many toward the position shared by Ellsworth, Congressman James A. Bayard of Delaware, and others in the party which accepted something of the notion of a federal common law competency.

48. Judiciary Act of 1789, §§9 (district court jurisdiction), 11 (circuit court jurisdiction).

49. Actually, given the Federalists' tendency to construe the Constitution generously with regard to the powers of the federal government, see supra note 13, most arguments for a federal common-law jurisdiction made by Federalist judges and district attorneys seemed to sound in theories of the inherent or natural powers of the United States, rather than to make statutory arguments in response to the Jeffersonian position, repeated in case after case, that:

In relation to crimes and punishments, the objects of the delegated power of the United States are enumerated and fixed…. Every power is [a] matter of definite and positive grant; and the very powers that are granted cannot take effect until they are exercised through the medium of a law. Congress undoubtedly had a power to make a law, which should render it criminal to offer a bribe to the commissioner of the revenue; but not having made the law[,] the crime is not recognized by the federal code, constitutional or legislative….

United States v. Worrall, 28 Fed. Cas. 774, 777-78 (C.C.D. Pa. 1798) (No. 16766) (argument of Alexander J. Dallas for the defense). After Chase's peroration agreeing with Dallas in that case, the Federalist District Judge Richard Peters sitting with him on the trial made the appropriate argument that Congress had enacted such a statute: ‘Whenever an offence aims at the subversion of any Federal institution, or at the corruption of its public officers, it is an offence against the well-being of the United States; from its very nature, it is cognizable under their authority; and, consequently, it is within the jurisdiction of this court, by virtue of the 11th section of the judicial act [of 1789].’ Ibid, at 779-80.

50. See United States v. Henfield, 11 Fed. Cas. 1099, 1100-01 (C.C.D. Pa. 1793) (No. 6360) (reporting a grand jury charge of Jay, C.J., delivered before the Federal Crimes Act of 1790 had been passed, when the only federal criminal authority in existence must have been a common-law jurisdiction); United States v. Henfield, Ibid, at 1106-08 (grand jury charge of Wilson, J., claiming to state the views of Iredell, J.); United States v. Ravara, 27 Fed. Cas. 714 (C.C.D. Pa. 1794) (No. 16122) (Jay, C.J.); Williams' Case, 29 Fed. Cas. 1330 (C.C.D. Conn. 1799) (No. 17708) (Ellsworth, C.J.); United States v. Worrall, 28 Fed. Cas. 774 (C.C.D. Pa. 1798) (No. 16766), discussed supra notes 47 & 49, and cases collected or mentioned in Kathryn Preyer, ‘Joseph Story’, supra note 47, 48 and nn.3-14, 17, 31. Only in Williams and Worrall was federal common-law jurisdiction over crimes declared to be full in extent. See generally Stephen Presser, B., ‘A Tale of Two Judges: Richard Peters, Samuel Chase, and the Broken Promise of Federalist Jurisprudence’, 73 Northwestern University Law Review 26, 46–72 (1978)Google Scholar.

51. See supra note 49.

52. Judiciary Act of 1801, §11 (emphasis added).

53. Annals of 7th Congress 806.

54. See generally Crosskey, William Winslow, Politics and the Constitution in the History of the United States, 3 vols. (Chicago, 1953, 1980) ii. 543–674Google Scholar. Crosskey, however, ignores the 1801 Act. The argument in favor of this reading of the Judiciary Act of 1801 is extended and amplified in my detailed discussion of that Act, in my forthcoming article on that subject. It ought to be noted here, however, that the section of the 1801 Act which granted the power to take writs of error from the new circuit courts to the Supreme Court described them as being taken from ‘all final judgments in civil actions at common law, in any of the circuit courts hereby established’. Judiciary Act of 1801. §34 (emphasis added).

55. See supra note 14.

56. [Alexander Hamilton], ‘The Examination’, Pts. V & VI, in The [Hartford] Connecticut Courant, Jan. 18, 1802.

57. Theodore Sedgwick to Rufus King, Nov. 15, 1799, in King, Charles R., ed. The Life and Correspondence of Rufus King, 6 vols. (New York, 1894-1900) i, 147Google Scholar.

58. Annuls of 7th Congress 552. See also the aware writings of Jefferson and Madison, cited in Kathryn Preyer, ‘Joseph Story’, supra note 47, nn.24 & 25.

59. Annals of 7th Congress 554.

60. Ibid, at 806.

61. ‘[A]nother [difficulty] … immediately presents itself. If the Constitution adopted the common law, or the common law attached itself to the Constitution, it immediately became a law of the United States, and is paramount to the laws and constitutions of the individual States.’ Ibid, at 810 (remarks of Nicholson).

62. Ibid, at 552-53.

63. 5 U.S. (1 Cranch) 137 (1803).

64. Annals of 7th Congress 662.

65. Ibid, at 750.

66. Ibid, at 650.

67. Ibid, at 628.

68. Ibid, at 648.

69. Ibid, at 709. See generally Joyce Appleby, Capitalism, supra note 14.

70. See, e.g., the contemporaneous commentary of a well-known Jeffersonian jurisprude: ‘As soon as the question [passage of the Judiciary Act of 1801 ] had been … carried in the house of representatives, a member gave notice, which was laid upon the table, that at the next session he should move for a repeal of the act…. The question whether a succeeding congress could repeal the law, and by so doing remove the newly appointed judges from office, soon became a popular topic of discussion, in many parts of the United States’. Tucker, St. George, ed. Blackstone's Commentaries, 5 vols., (Philadelphia, 1803), iv, Appendix I, 24–25Google Scholar.

71. A third possibility, brought to my attention by Kathryn Preyer, is that these two Jeffersonians might not have agreed with Jefferson's position on the jurisdictional expansion of the federal courts. Party ‘lines’ were looser then than now and political communication was more haphazard, it is true, and of course many of Jefferson's adherents did not agree with all or even much that he believed or said.

However, the crucially important nature of the question involved, the mode of selection of the only two Jeffersonian circuit court appointees, and the favors subsequently bestowed upon them by the Jeffersonians make it unlikely that they would have acted to disagree with their party leader on this issue. First, Jefferson viewed the 1801 Act, plus the Federalists' nearly complete retention of control of the federal judiciary, as the primary targets of his campaign to rid the nation of its aristocratic pretenders and to ‘restore’ his version of the 1787 Constitution. It would have been exceedingly strange for two of his appointees to fail to adhere to this position, at the inception of his term in office, in offices themselves so close to the substance of the issue. The topic of repeal of the 1801 Act was widely mooted publicly, especially in the South. See, e.g., Henry de Saussere to John Rutledge, Feb. 17, 1802, John Rutledge Papers, Southern Historical Collection, University of North Carolina; supra note 70.

Second, Jefferson made it clear to his lieutenants in North and South Carolina (and Georgia) that he wanted to appoint to the Fifth Circuit only persons who were regular Jeffersonians. See, e.g., Thomas Jefferson to Nathaniel Macon, May 14, 1801, Nathaniel Macon Papers, University of Virginia. Third, both Potter and Hall were generously rewarded by Jefferson and his party for their service, which might not have happened had either bucked the President in this, the first crucial issue of his administration, one which to Jefferson symbolized the fundamental differences between the two parties, and one which vitally concerned the jobs of Potter and Hall. Potter was given the federal district judgeship in North Carolina when it chanced to fall vacant in the spring of 1802 (he remained in that position until his death 55 years later, a staunch Jeffersonian to the end). See generally Briggs, Wilson Grandy, Henry Potter 1766-1857, (Chapel Hill, 1953) 3–7Google Scholar. Hall was given a Louisiana Territorial Judgeship in 1803 by Jefferson when Louisiana was purchased and organized; later President Madison made him the first District Judge there when Louisiana was admitted to the Union and a federal court was created for it. I think it fair to conclude that Potter and Hall were loyal Jeffersonians.

Two other possibilities have been urged upon me by Wilfred Ritz. The jurisdictional plea may have been overruled simply because it was technically deficient, or because the judges were willing to accept federal jurisdiction based on some legal fiction not apparent in the meager record we have. While I think both unlikely, both are certainly possible explanations since we know so little about the case.

72. In the Senate, where the final vote to repeal the 1801 Act was only by a 16-15 margin thanks to the defection of South Carolina's Jeffersonian Senator John Ewing Colhoun to the other side, see Annals of 7th Congress 183, Morris was viewed as one of the principal defenders of the 1801 Act, speaking to the issue on five separate occasions. See Ibid, at 36-41, 76-92. 157, 159, 180-82.

73. Morris to Timothy Pickering, Dec. 22, 1814, in Farrand, Max, ed., The Records of the Federal Convention of 1787, 4 vols., revised edition (New Haven and London, 1937) iii, 420Google Scholar. Morris should be quoted more fully:

[The Constitution, he modestly admitted,] was written by the fingers, which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of which relates to the judiciary. On that subject, conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which expressing my own notions would not alarm others, nor shock their selflove.…

Morris can be taken as saying that he wrote his own centralizing views of federal jurisdiction into the Constitution, using equivocation (or, perhaps we should say, openended phraseology) in order to keep ‘others’ from seeing the expansionist possibilities inherent therein.

74. The arguments of the wily, immensely astute Morris in defense of the 1801 Act bear close scrutiny. First, Morris argued that the Constitution had been written by centralizers, who despaired that solutions for national problems would ever emanate from a group of equal but fractious states, during a short time when the proponents of states' rights were asleep, a time not likely to be duplicated:

There are some honorable gentlemen now present [he said to the Senate in January 1802] who sat in the Convention which formed this Constitution. I appeal to their recollection, if they have not seen the time when the fate of America was suspended by a hair? my life for it, if another convention be assembled, they will part without doing anything. Never, in the flow of time, was a moment so propitious, as that in which the Convention assembled. The States had been convinced, by melancholy experience [Shays’ Rebellion?], how inadequate they were to the management of our national concerns. The passions of the people were lulled to sleep; State pride slumbered; the Constitution was promulgated; and then it awoke, and opposition was formed; but it was in vain. The people of America bound the States down by this great compact.

Annals of 7th Congress 40. The Constitution thus rejected a states’ rights position and subordinated the states to the federal government, even to the extent of having deprived them of their sovereign immunity, since Morris next lamented the passage of the Eleventh Amendment: ‘One great provision of the Constitution—a provision that exhibited the sublime spectacle of a great State bowing before the tribunal of justice—is gone!’ Ibid, at 40-41. The impetus for an expansionist federal government, particularly for an expansionist federal judiciary, was (Morris thought) the potential in a republic for an excess of popular domocracy, which might control the states and might even gain control of the new national legislature. He aimed directly at the states-rights Jeffersonians and their leader:

Look into the records of time [Morris continued], see what has been the ruin of every Republic. The vile love of popularity. Why are we here? To save the people from their most dangerous enemy; to save them from themselves. What caused the ruin of the Republics of Greece and Rome? Demagogues, who, by flattery, gained the aid of the populace to establish despotism.

Ibid, at 41. To save the people from themselves, Morris continued in a later speech, if the checks on popular will provided by two legislative branches and a Presidency populated by ‘men selected from their fellow-citizens for their talents, for their virtue; [by] men advanced in age, and of matured judgment’ were to ‘prove insufficient, and alas! such is the condition of human nature, that I fear they will not always be sufficient, the Constitution has given us one more’, an ‘independent’ judiciary which can declare the acts of those two branches unconstitutional. Ibid, at 83-84. But what sort of trial jurisdiction had been vested in that judiciary?

[W]e find [Morris said] that the judicial power shall extend to a great variety of eases…. [T]he Constitution did not merely contemplate, but did, by express words, reserve to the national tribunals a right to decide, and did secure to the citizens of America a right to demand their decision, in many cases evidently cognizable in the State courts. And what are those cases? They are those in respect to which it is by the Constitution presumed that the State courts would not always make a cool and calm investigation, a fair and just decision.

Ibid, at 78. In every head of jurisdiction in Article III, therefore, the centralizing Constitution granted to federal judges the power to hear cases in which state justice might be suspect, and granted to American citizens a right to demand access in order to avoid the suspected state prejudice. Morris’ words about the language he himself drafted, see supra note 73, imply a very broad grant of federal jurisdiction indeed, a protective jurisdiction to be sure, a backstop and curative jurisdiction rather than a mandatorily all-encompassing one, but a potentially omnivorous federal jurisdiction capable of hearing, if necessary, ‘a great variety of cases’. Morris was, I believe, defending an Act which permitted federal jurisdiction over Hobby v. Day, that is, the 1801 Act described in these pages.

75. Cf. Tushnet, Mark V., ‘Following the Rules Laid Down: A Critique of Interpretivism and Neutral Principles’, 96 Harvard Law Review 781 (1983CrossRefGoogle Scholar).