U.S. First Congress: Creation of Federal Judiciary, 1789

As previously discussed, the First Congress of the United States of America began on March 4, 1789, and ended on March 4, 1791. We now look at its creation of the federal court system in the Judiciary Act of 1789, which was adopted on September 24, 1789.[1]

The Constitution

The backdrop for this legislation was Article III of the Constitution of the U.S.A., which provided the following:

  • Section 1 “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 Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”
  • Section 2 “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;-to all Cases affecting Ambassadors, other public ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Citizens of another State;-between Citizens of different States;-between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.”
  • “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
  • “The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed.”

Judiciary Act of 1789

The previously mentioned Judiciary Act of 1789 had the following key provisions:

  • Section 1. The “supreme court of the United States shall consist of a chief justice and five associate justices . . . .” [The Supreme Court’s cognizance or jurisdiction was established in Section 13.][2]
  • Section 2. The U.S. “shall be, and they hereby are divided into thirteen districts [as defined in that section].[3]
  • Section 3. There shall be “a court called a District Court, in each of the aforesaid districts, to consist of one judge, who shall reside in the district for which he is appointed, and shall be called a District Judge. . . .” [The cognizance or jurisdiction of each of the District Courts was specified in Sections 9 and 10.][4]
  • Section 4. These thirteen districts, except those of Maine and Kentucky, “shall be divided into three circuits, and be called the eastern, the middle and the southern circuit. . . . and that there shall be held annually in each district of said circuits, two courts, which shall be called Circuit Courts, and shall consist of any two justices of the Supreme Court and the district judge of such districts . . . .’ [The cognizance or jurisdiction of the Circuit Courts was specified in Section 11, and certain of their procedures were contained in Section 5.] [5]
  • Section 12 [Procedure for removal of certain cases from state court to federal court.]
  • Sections 6, 8, 14-26, 29-35. [Established rules of procedure for the federal courts.]
  • Section 7 [Supreme Court and District Courts have power to appoint clerks with specification of their duties.]
  • Sections 27-28. [District courts have power to appoint marshals with specification of their duties.]

According to Fergus Bordewich, the author of a leading book about the First Congress, the bill’s primary author was Senator Oliver Ellsworth, a staunch Federalist from Connecticut and an experienced litigator and state court judge. Ellsworth was especially concerned about maritime issues because virtually all of the federal government’s revenues would derive from import duties. Another maritime issue was regulating privately owned raiders by validating captured prizes and ensuring that they did not commit outright piracy. [6]

There was “vigorous debate” about the bill. Some believed that having only six Supreme Court justices was insufficient to combat the state courts; that it would be wrong to allow state courts to have jurisdiction over some federal cases; that there was insufficient federal revenue to support the federal courts; that this judiciary was intended to enrich lawyers; that the federal judges would have too much “inquisitorial power;” that the federal courts should not have the power to invalidate state laws that were believed to conflict with the Constitution or federal laws or treaties. James Madison in the House of Representatives thought the bill was too complicated and too expensive. Some even thought that having two overlapping judicial systems (state and federal) was totally unnecessary.


[1] U.S. First Congress, 1789-1791: Overview, dwkcommentaries.com (Feb. 15, 2017); Judiciary Act of 1789, http://avalon.law.yale.edu/18th_century/judiciary_act.asp.

[2] Over the years Congress has passed various acts to change the number of Supreme Court justices from six to a low of five and a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred. (U.S. Sup. Ct., Frequently Asked Questions (FAQ). https://www.supremecourt.gov/faq.aspx#faqgi

[3] There now are 94 U.S. district courts as some states like New York have more than one such district and as some non-states (e.g., Puerto Rico) have such courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[4] Most, if not all, of today’s U.S. district courts have more than one judge. Thus, as of May 2012 there were 2,758 such judges.

[5] The U.S. circuit courts have been replaced by 13 U.S. courts of appeal, and as of May 2012 there were 714 judges on these courts. (U.S. Courts, Court Role and Structure.) http://www.uscourts.gov/about-federal-courts/court-role-and-structure

[6] Bordewich, The First Congress at 105-12, 141-43, 159-60 (Simon & Schuster, New York, 2016). http://www.simonandschuster.com/books/The-First-Congress/Fergus-M-Bordewich/9781451691931

The Alien Tort Statute, 1789-1979

We already have seen that the U.S. Supreme Court this Term will be considering whether a corporation may be held liable under the U.S. Alien Tort Statute (ATS) that provides for a district court’s having jurisdiction over a civil action for money damages “by an alien [non-U.S. citizen] for a tort only, committed in violation of the law of nations or a treaty of the United States.”[1]


An Act to establish the Judicial Courts of the United States

The first version of the ATS was part of An Act to establish the Judicial Courts of the United States (also known as the Judiciary Act of 1789) that was adopted on September 14, 1789.[2] It was only the 20th statute ever adopted by Congress, and it established the federal courts. More specifically it established thirteen judicial districts (§ 2), the district courts (§ 3) and their jurisdiction (§ 9).[3] One of the jurisdictional provisions for the district courts, and the first version of the ATS, stated that the district courts “shall have cognizance, concurrent with the courts of the several States, or the circuit courts . . . of all cases where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.”

There are no committee reports or reported debates and thus no legislative history for this statute. Many law review articles and cases that discuss this 1789 statutory provision find it difficult to come to any conclusion as to what the legislative intent was.

To place the Judiciary Act of 1789 in historical context, recall that the U.S. Constitution went into effect on June 21, 1788, after the ratification by nine states. Article III, Section 1 of the Constitution provided  that 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.”

Federal Hall, New York City
George Washington Inauguration

The First Session of the First Congress of the U.S. opened on March 4, 1789. It had 22 Senators representing the 11 states of the Union that had then ratified the Constitution and only 59 members of the House of Representatives. They met in the former City Hall of New York City at the corner of Wall and Broad Streets. The Supreme Court also met here, and the executive offices of the federal government were here too. On the balcony of that same building George Washington was inaugurated as the first President of the U.S. on April 30, 1789.[4] The population of New York City in 1789, by the way, was only 33,000 while the total U.S. population was 3.9 million.

For nearly the next 200 years, the ATS does not appear in any of the reported cases from our federal courts.[5]

In 1795, however, U.S. Attorney General William Bradford was asked whether criminal prosecution was available against Americans who had taken part in the French plunder of a British slave colony in Sierra Leone.  Bradford was uncertain on that question, but he made it clear that a federal court was open for the civil prosecution of a tort action growing out of the episode. He said,”But there can be no doubt that the company or individuals who have been injured by these acts of hostility have a remedy by a  civil suit in the courts of the United States;  jurisdiction being expressly given to these courts in all cases where an alien sues for a tort only, in violation of the laws of nations, or a treaty of the United States.”[6]

In any event, the lack of judicial precedent on the ATS changed in 1980 as we will see in a subsequent post.

[1] 28 U.S.C. § 1350; Post: Alien Tort Statute: Important Cases Heading to U.S. Supreme Court (July 9, 2011); Post: U.S. Supreme court To Hear Cases Challenging Whether Corporations Can Be Held Liable for Aiding and Abetting Foreign Human Rights Violations (Oct. 17, 2011).

[2]  An Act to establish the Judicial Courts of the United States, 1 U.S. Stat. 73 (1789).

[3]  The Judiciary Act of 1789 also established the U.S. Supreme Court (§ 1) and  three judicial circuits (§ 4) and contained other provisions relating to starting a new judicial system (id. §§ 5-8, 10-35).

[4]  The site is kitty-corner today from the New York Stock Exchange and not too far from where the World Trade Center used to stand.

[5]  In 1911 and again in 1948 the ATS was enacted into positive law with modest language changes as section 1350 of Title 28 of the U.S. Code. (An Act to codify, revise and amend the laws relating to the judiciary, 36 Stat. 1087, 1093 (§ 24 (17)) (1911); An Act to revise, codify and enact into law Title 28 of the United States Code entitled “Judicial Code and Judiciary,” 62 Stat. 869 (1948).

[6]  1 Op. [U.S.] Atty. Gen. 57, 59 (1795).