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The circuit courts were designed to occupy the second tier of the three-tier system of judicial responsibility as established by the Judiciary Act of 1789. At the top was, and is, the United States Supreme Court. It is the last resort for all who enter the legal system. The Supreme Court exercised an almost exclusively appellate jurisdiction, the vast majority of the cases it heard had already been decided by lower courts. The circuit courts exercised a limited appellate jurisdiction by rehearing cases that came up from the district courts and a limited original jurisdiction by hearing cases that were just entering the legal system. The district courts, in turn, had only original jurisdiction and no appellate jurisdiction. As stated by Erwin Surrency in the Federal Rules Decisions, the jurisdiction of the circuit courts "extended to all matters triable under the federal statutes and not reserved exclusively to the district court. In addition, the circuit court had exclusive original jurisdiction in diversity of citizenship cases where the amount exceeded $500."

The Judiciary Act of 1789 designed the circuit courts to resemble their British counterparts. The Supreme Court Justices would ride the circuits, traveling throughout the country in a circuit and holding court twice yearly in each district. The federal judge for that district would join the Justices on the bench to hear trials and appeals.

This is the first execution issued by the Circuit Court for the Eastern Circuit in the District of New Hampshire. It was issued by John Jay, first Chief Justice of the Supreme Court.

Congress did not consider exactly what it was asking of its Supreme Court Justices. At the time there was no rail system, and roads were neither extensive nor well maintained. Health care was primitive and not readily available and a person could die from the flu. Disease was common, and travel frequently gave people new ailments or made them suffer greatly from existing ones. The rigors of circuit riding were too much for many of the Justices. Justice Blair had what he described as, "a rattling distracting noise in my head," and it led him to cut short his circuit riding and resign the bench. Justice Rutledge had a crippling case of gout that caused him to miss several meetings of the Supreme Court. Chief Justice John Jay, in his later years, suffered from rheumatism, which kept him at home and away from the circuit bench. In addition to the risks of disease and poor health, these traveling Justices faced the risks of accident and physical injury. Justice Iredell had his leg run over by a run-away horse and carriage and Justice Cushing's vehicle overturned. The "Philadelphia Aurora" reported on February 5, 1800 that Justice Chase was taken almost lifeless from the Sesquehanna River, having fallen in while crossing it. All of these accidents happened to these Justices while performing their circuit duties. Despite the hardships there were a few positive aspects of circuit riding as the justices were able to renew acquaintances and visit with friends. At least one justice, Chief Justice Jay, made it a policy to never reside in the homes of his friends while on circuit. He did not wish to make one acquaintance feel snubbed by staying with another, so he always stayed at inns. As he visited one inn or pub after another, he would write reviews of the food and hospitality in his diary, giving each place a rating of "good, bad or fair." One biographer described his diary as "replete with entries regarding the state of the inns and food offered along various routes in New England - a primitive Guide Michelin of the region."

The rigors of circuit riding were, however, sufficient to cause several of Washington's Supreme Court nominees to decline their nominations. A few, such as Justice Blair, reluctantly accepted a position at the bench only because President Washington assured them that the situation would soon change. This assurance is demonstrated in such letters as the one Washington sent to Justice Harrison on November 25, 1789. Harrison had just resigned his appointment to the Supreme Court: "I find that one of the reasons, which induced you to decline the appointment, rests on an idea that the Judicial Act will remain unaltered. But in respect to that circumstance, I may suggest to you, that such a change in the system is contemplated, and deemed expedient by many in, as well as out of Congress, as would permit you to pay as much attention to your private affairs as your present station does." It was commonly believed that the first Judicial Act was to play a part similar to the first Continental Congress, i.e., to establish a temporary system until an effective, permanent one could be devised.

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In an effort to achieve a more effective system, President Washington sent a letter on April 3, 1790 to all the Supreme Court Justices, requesting their suggestions. He wrote,"I have always been persuaded that the stability and success of the national Government, and consequently the happiness of the People of the United States, would depend in a considerable degree on the Interpretation and Execution of its Laws. In my opinion, therefore, it is important that the Judiciary system should not only be independent in its operations, but as perfect as possible in its formation. As you are about to commence your first circuit, and many things may occur in such an unexplored field, which it would be useful should be known; I think it proper to acquaint you, that it will be agreeable to me to receive such Information and Remarks on this Subject, as you shall from time to time judge expedient to communicate".

Chief Justice Jay prepared a reply to this request and sent a draft copy to the other Justices. In this letter, Jay challenged the constitutionality of circuit riding. He stated that an act of legislation mandating circuit riding by the Justices was "a departure from the Constitution and an exercise of powers which constitutionally and exclusively belong to the President and the Senate." Jay softened the letter with a fair amount of diplomacy. He said that there were defects in the Act "relative to Expediency which merited attention by Congress, but as these were doubtless among the objects of the reference by that body to the Attorney General, we think it most proper to forbear making any remarks on the subject at present." This letter was never sent to President Washington. The Justices allowed a sense of political decorum get in the way of their changing a system they knew to be ineffective. As historian Julius Goebel Jr. states it, "the Court, whether from commitment to principle or from a sense of propriety, had thus far steered clear of anything resembling political self help." It took several rounds of circuit riding before the Supreme Court spoke up as a body against this ineffectual system.

The Judiciary Act divided the thirteen states into three circuits, with two justices of the Supreme Court allotted to ride each circuit. The Act left the division of circuit duties to the discretion of the Supreme Court Justices. Before ever going on a circuit, Chief Justice Jay, and Justices Cushing, Wilson and Blair decided that each Justice would ride the circuit in which he lived.

The following maps show the evolution of the Circuits from 1948 to 1948. Click any of the thumbnails below to enlarge.

Circuits in 1789

Circuits in 1802

Circuits in 1837

Circuits in 1891

Eastern Circuits in 1948

This decision was a sore spot for Justice Iredell as he was not a party to making it, and he frequently called for that policy to be changed. When the Justices refused to change the system, he called for a change to be made by Congress. His sentiments are expressed the following letter to Thomas Johnson.

March 15, 1792. Philadelphia, Pennsylvania

apprehend, from the manner in which you write, that Mr. Cushing omitted writing to you as he intended before he left town, Which I am sorry for as the notice of their expectations was by that means so much shorter. The meeting of the Judges on the subject of the Circuits was at my request. I remember troubling you at Richmond with a statement of the manner in which three Judges out of five (without consulting the sixth, Mr. Rutledge, who was on the spot, & tho' confined with the gout perfectly capable of conversing about business) determined that there should be no rotation of Circuits - in consequence of which the C.J.[Chief Justice John Jay] & Mr. Cushing considered themselves Proprietor of the Eastern Circuit, Mr Wilson kept possession of the Middle Circuit, and Mr. Blair (who voted with me for a rotation) became entitled on the same principle to the Middle Circuit also, and Mr. Rutledge and myself were doomed to the Southern Circuit only. The Circuits were fixed in this manner at first by the former four Judges only (when I knew nothing either of my appointment, which was about that time made out, nor even of my nomination, and Mr. R. was absent) for this reason, as assigned by the C.J. that the Judges could best determine in the Circuits wherein they lived on the propriety of the admission of Lawyers- In consequence of this arbitrary decision (for I can call it nothing else) I have gone the Southern Circuit three times out of four & upon the last Circuit alone rode 1800 miles, at least 1000 miles more than the utmost of the others....Nothing I could say had the least effect on Mr. Cushing & Mr. Wilson, they adhered to their old principle. Mr Blair, as I understood, voted with me for a rotation. I concluded with telling them, that I would not agree to go unless compelled by a vote. Such a vote has not been given, for we were divided, at least I understood so...I have applied to several Members of Congress that the law may be amended so as to compel a rotation, and have reason to hope it will be done. Nertheless, as I see no prospect of any of the other Judges going except you, Sir, I do expect and intend to go myself rather than the Circuit should be unattended but it is distressing to me in the greatest degree.

Justice Iredell was willing to make any sacrifice necessary in order to eliminate circuit riding. He suggested to Chief Justice Jay that the Justices take a $500 pay cut, approximately the same amount they spent on travel expenses. However he met some resistance in this endeavor. As he writes in the same letter to Mr. Johnson, "I am very glad you approve of our offer but I apprehend unless it is unanimous it cannot be proposed, and I fear as Mr. Jay expects to be Governor of New York (I am told with high probability) [Jay in fact lost the gubernatorial race] that he may be doubtful of the propriety of relinquishing a part of the Salary. I confess I was astonished at Mr. Cushing's hesitating and can only account for it by his finding travelling in the midst of his New England friends much cheaper than any of the rest of us do I believe."

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Attorney General Edmund Randolph shared the sentiments of the Supreme Court Justices. He suggested to Congress that the government appoint new members to the judiciary as permanent circuit judges and allow the Supreme Court to stay at home and conduct business. There were two strong objections to this in Congress. First, in the early years there simply was not that much business for the Supreme Court to conduct. The second and more important objection was that, by keeping the justices coming into the local area to participate, and by allowing the district judge to establish the circuit court's workload, the courts tended to have a local rather than national focus. This cannot be overemphasized in view of the Anti-Federalist concerns over potential interference in local jurisdictions.

The Justices finally wrote a letter to President Washington to be read before Congress regarding the Circuit Court system. As Julius Goebel says,

necessity moved them to represent the rigors of holding twenty-sever courts per annum, in the most severe seasons of the year, the time spent on the road, the dangers to health, and the improbability of enduring such severe duties for any length of time. The plaint then arrived at the solid policy argument, `that the distinction made between the Supreme Court and its judges, and appointing the same men finally to correct in one capacity the errors which they themselves may have committed in another, is a distinction unfriendly to impartial justice, and to that confidence in the Supreme Court which is so essential to the public interest should be reposed in it.

In 1801 an extraordinary set of circumstances allowed a long-awaited, drastic revision of the circuit courts. John Adams, then President, was a strong Federalist and was backed by a mostly Federalist congress. This strong Federalist representation in government, coupled with Adams' impending departure from office, created an environment ripe for sweeping federal judicial reform. The result was the Judiciary Act of 1801. Under this Act circuit riding by the Supreme Court justices was abolished. This Act authorized, and Adams appointed, sixteen new judges to ride the circuits and hear trials. Three of those judges were appointed to ride the first circuit, which included New Hampshire. The Act also extended the jurisdiction of the lower federal courts. Furthermore, the number of circuits was increased to six, and the number of Supreme Court justices was reduced to five.

This Judiciary Act has been named the "Midnight Judges Act" and the new appointees the "midnight judges." This popularized name is the result of a largely apocryphal story that Adams stayed up past midnight on the last day of his term appointing deserving Federalists to the newly created posts. The story itself, while not entirely accurate, is a good indication of how the Act was perceived. It was viewed by some "as the Federalists' last-ditch effort to prolong their domination of government," and by others "as an extension of federal jurisdiction to suits that previously had been tried only in state courts." It is true that the Federalists were interested in getting federal judgeships and in protecting and strengthening the federal judiciary, but the "Midnight Judges Act" was the consequence of a long series of debates about the need for reform, not a last ditch effort to force Federalist's theories onto the public.

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The Judiciary Act of 1801 was repealed during the Jefferson administration at the turn of the Federalist tide and replaced by the Circuit Court Act of 1802. The Circuit Court Act kept the number of circuits at the new figure of six and restored circuit riding by the Supreme Court justices. However, in an interesting provision, the presence of a Supreme Court justice was not necessary for circuit court to take place. Trials could now be held with only a district judge presiding. In practice, the same judge could hear a case and then its appeal.

For almost the next seventy years nothing was done to relieve the Supreme Court's burden or to increase the efficiency of the circuit courts; additional circuits and even Supreme Court justices were simply added as necessary. The pro-state (Anti-Federalist) and pro-nationalist (Federalist) forces had reached a stalemate that was impossible to break and proved that the federal issue was as strong as it had ever been. They continually jockeyed back and forth on whether or not to lessen Supreme Court power and shift many conflicts to lower federal courts. The circumstances that had allowed Adams to forge a political coalition and thereby attempt circuit reform were not repeated.

It is widely believed that the practice of riding circuit gradually dropped off among the justices. Erwin Surrency says that, "In all probability, the justices did not cease performing this function at any one time but the function gradually fell into disuse. . . . It is known that prior to 1860 at least one justice did not bother to go on circuit." For justices who did travel, the increasing size of the nation meant ever greater distances, and "most of the justices averaged a total of 2,000 miles during the year."

New Hampshire Circuit Court records show that thirteen Supreme Court Justices sat on the bench from 1790 until 1886. Among those was John Jay, the first Chief Justice. Court was generally held twice a year, alternating between Exeter and Portsmouth, following the pattern of the District Court. After that period, the pattern of the justices' attendance settles down into long periods dominated by a single justice (Justice Joseph Story served for 32 years). The last recorded appearance of a Supreme Court Justice sitting on a New Hampshire Circuit Court bench is Horace Gray in May 8, 1886.

The first step in a three-step process of reform was taken in 1869. Congress authorized the appointment of nine new circuit judges, while reducing circuit duty of the Supreme Court justices to one term every two years. Six years later it broadened the jurisdiction of the circuit courts, once more in the hope of relieving the Supreme Court's burden of work.

This is a reproduction of the original court seal for the New Hampshire District. The specific court name was left blank as this seal was used for both circuit and district courts.

The second and most decisive step, which ultimately was to doom the circuit courts, came in 1891. Congress passed the Evarts Act of 1891 to, as Judge John Parker states, "relieve the Supreme Court, which had been hopelessly in arrears with its work. A backlog of approximately twelve hundred cases had accumulated." This act established the Circuit Courts of Appeal as an intermediary tier between the circuit courts and the Supreme Court. There were now four tiers of federal courts: the district courts, the circuit courts, the circuit courts of appeal, and the Supreme Court. The circuit courts of appeal had a jurisdiction which included the appeals from the district and circuit courts. Sitting on the bench for this new court would be the existing circuit court judges, that circuit's Supreme Court justice and a district court judge, should the other judges choose to include said district judge. The circuit courts jurisdiction to hear appeals from the district court was abolished by this act.

Because only two judges were necessary in order to hold court, Supreme Court justices were not required to attend the circuit courts of appeal. This freed them from much of their backlog. The final step came with the adoption of the Judicial Code of 1911 abolishing the circuit courts and conferring their remaining jurisdiction upon the district courts.

The work of the circuit courts lives on today, but is divided into two court systems; the district courts and the Courts of Appeal, which underwent a name change from Circuit Courts of Appeal in 1948.

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