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One— Origins and Early Years

1. U.S. Const. art. III, *§ 1. See Act of Sept. 24, 1789, ch. 20, 1 Stat. 73. Massachusetts and Virginia were divided into two districts each to cover addi-

tional territory that eventually became Maine and Kentucky, respectively. Rhode Island and North Carolina were not included in the 1789 Judiciary Act. Circuit courts also had original jurisdiction over certain other civil and criminal actions ( id. §§ 2, 4, 9, 11, 1 State. at 73-79). [BACK]

2. Act of Mar. 3, 1911, ch. 231, § 301, 36 Stat. 1087, 1169. In practice, circuit and district courts had original jurisdiction over different types of actions. Over time, however, Congress vested overlapping original jurisdiction in these courts. See generally B. Curtis, Jurisdiction, Practice, and Peculiar Jurisprudence of the Courts of the United States (2d rev. ed. 1896). [BACK]

3. See 2 M. Marcus, ed., The Documentary History of the Supreme Court of the United States, 1789-1800: The Justices on Circuit, 1790-1794 (1988); 3 M. Marcus, ed., The Documentary History of the Supreme Court of the United States, 1789-1800: The Justices on Circuit, 1795-1800 (1990). Act of Feb. 13, 1801, 2 Stat. 89 (1801). By this time Congress had already abandoned the two-justice requirement for circuit duty and had provided instead for one justice and one district judge to sit as the circuit court (Act of Mar. 2, 1793, ch. 22, 1 Stat. 333; Act of Feb. 13, 1801, §§ 6-7, 2 Stat. 89, 90). [BACK]

4. Act of Mar. 8, 1802, ch. 8, 2 Stat. 132; Act of Apr. 29, 1802, ch. 31, §§ 1, 4, 2 Stat. 156, 157. See G. Haskins and H. Johnson, Foundations of Power: John Marshall, 1801-15 , 2 The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States 163-80 (1981). The Adams-appointed circuit judges themselves declined to challenge the 1802 annulment of their stations. A justice of the peace named William Marbury, appointed under a comparable act, did bring suit, and the anti-Federalists anticipated that a Supreme Court decision holding that statute unconstitutional would provide grounds for impeachment of the Supreme Court justices. For a highly readable account of this interesting episode by a later Supreme Court justice, see Burton, "The Cornerstone of Constitutional Law: The Extraordinary Case of Marbury v. Madison ," 36 A.B.A. J. 805 (1950). The avoidance by the justices of circuit-riding occurred over time. Professor Charles Fairman writes of the "imperfect compliance" by the justices of circuit duty (C. Fairman, Reconstruction and Reunion, 1864-88: Part Two , 7 The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States 372 [1987]). Edwin Surrency reports that ''by the end of the Civil War it must have been the exception for a justice to preside in the circuit court" (E. Surrency, History of the Federal Courts 32 [1987]). From an early date, justices apparently did not regularly attend circuit court in all the states of their respective circuits ( see id. at 30-31). The 1802 Act, however, provided that a district judge could hold circuit court in the absence of a justice (Act of Apr. 29, 1802, ch. 31, § 4, 2 Stat. 156, 158). Over the years, Congress gradually loosened the attendance requirement of justices at circuit court ( see Act of Mar. 10, 1838, ch. 33, 5 Stat. 215, requiring the justice to attend at least one term annually in the newly reorganized Seventh Circuit; Act of June 17, 1844, ch. 96, § 2, 5 Stat. 676, 676, extending this rule to all other circuits; Act of Apr. 10, 1869, ch. 22, § 4, 16 Stat. 44, 45, requiring attendance at one term every two years). See generally K. Turner, ''The Judiciary Act of 1801" (Univ. of Wisconsin diss. 1961). [BACK]

5. Hill, "The Federal Judicial System," 12 A.B.A. Rep. 289, *302 (1889). Act of Mar. 2, 1855, ch. 142, 10 Stat. 631. Congress had earlier provided for

district courts in California by the Act of Sept. 28, 1850, 9 Stat. 521. By this time Congress had also established nine numbered circuits (Act of Mar. 3, 1837, ch. 34, 5 Stat. 176). C. Fritz, Federal Justice in California: The Court of Ogden Hoffman, 1851-1891 , at 30-33 (1991). [BACK]

6. For brief biographical material on Judge McAllister, see J. Gordan, Authorized by No Law: The San Francisco Committee of Vigilance of 1856 and the United States Circuit Court for the District of California 5-7 (1987); 6 D. Malone, ed., Dictionary of American Biography 546-47 (1933); Who Was Who in America: Historical Volume, 1607-1896 , at 342 (1963); Watson, "The San Francisco McAllisters," 11 Cal. Hist. Soc. Q. 124 (1932); "Matthew Hall McAllister," 30 Fed. Cas. 1383 (1897). [BACK]

7. For more on the nature of the circuit court docket during McAllister's tenure, see J. Gordan, supra note 6; 1 McAllister's Reports of Cases Argued and Determined in the Circuit Court of the United States for the District of California (1859). San Francisco Daily Herald , Feb. 23, 1855, at 1, col. 3; id. , Mar. 10, 1855, at 1, col. 1; id. , Mar. 18, 1855, at 1, col. 1. C. Swisher, Stephen J. Field: Craftsman of the Law 114-16 (1930; reprint 1969). [BACK]

8. The most celebrated of these cases, The Prize Cases , was a five-to-four decision upholding the legality of the North's blockade of the South ( The Prize Cases , 67 U.S. 635 [1863]). This decision was handed down on March 10, 1863. The week before, Congress had created the tenth justiceship (Act of Mar. 3, 1863, ch. 100, 12 Stat. 794). For more on the history of the Prize Cases , see C. Swisher, The Taney Period , 5 The Oliver Wendell Holmes Devise, History of the Supreme Court of the United States 877-900 (1974). [BACK]

9. S. Field, Personal Reminiscences of Early Days in California *115 (1893; reprint 1968). Act of March 3, 1863, ch. 100, §§ 1, 2, 12 Stat. 794. C. Fritz, supra note 5, at 34-35. There is some evidence that the tenth justiceship was intended to be a more exalted circuit judge position ( see E. Surrency, supra note 4, at 46, noting that the statute authorizing the tenth justiceship provided for payment of $1,000 "for his travelling expenses for each year in which he may actually attend a session of the supreme court of the United States" [quoting Act of Mar. 3, 1863, ch. 100, § 5, 12 Stat. 794, 795]; and newspapers cited in supra note 7). After Field was sworn in as associate justice in Sacramento, he proceeded to San Francisco to hold circuit court (C. Swisher, supra note 7, at 118-19). For more on Field generally and on the development of his jurisprudence, see McCurdy, "Stephen J. Field and the American Judicial Tradition," in The Fields and the Law 5-18 (1986). [BACK]

10. Act of July 23, 1866, ch. 210, 14 Stat. 209. Act of Mar. 3, 1863, ch. 100, 12 Stat. 794. Administratively, Nevada's federal courts were closely linked to those of California and Oregon ( see Act of Feb. 27, 1865, ch. 64, § 7, 13 Stat. 440, 440-41). The 1801 Act authorized three circuit judges for each circuit except the Sixth ( see Act of Feb. 13, 1801, 2 Stat. 89). Act of Apr. 10, 1869, § 4, ch. 22, 16 Stat. 44, 45. See also 6 Op. Atty. Gen. 271 (1854), advocating the system Congress enacted in 1869. [BACK]

11. Historians of the federal courts have struggled to learn precisely how often justices rode circuit, but with little success ( see , e.g., Surrency, "Federal District Court Judges and the History of Their Courts," 40 F.R.D. 139, 144

[1967]; C. Swisher, supra note 7, at 121, noting that Field rented rooms in Washington each fall "when he returned from the long trip to the Pacific Coast, where he spent some months holding court"). But in 1870 Field established a home in Washington, and it is likely that his trips to California thereafter became less frequent ( see id. , at 121). [BACK]

12. See 17 Sen. Exec. J. 335 (1870), available at National Archives, Washington, D.C. For an interesting discussion of the appointment process leading up to Sawyer's nomination, see C. Fritz, supra note 5, at 42-47. For general biographical information on Sawyer, see O. Shuck, Bench and Bar in California 66 (1889); 8 D. Malone, ed., Dictionary of American Biography 395-96 (1935); L. Sawyer, Way Sketches 13-16 (1926). [BACK]

13. L. Sawyer, supra note 12, at *14, *120. See also C. Fritz, supra note 5, at 42; 8 D. Malone, ed., supra note 12, at 395-96. [BACK]

14. Act of Apr. 9, 1866, ch. 31, 14 Stat. 27; Act of May 31, 1870, ch. 114, 16 Stat. 140; Act of Feb. 28, 1871, ch. 99, 16 Stat. 433; Act of Mar. 1, 1875, ch. 114, 18 Stat. 335. [BACK]

15. See Act of Mar. 3, 1863, ch. 81, § 5, 12 Stat. 755, 756; see also Act of May 11, 1866, ch. 80, §§ 3-4, 14 Stat. 46, 46. The Act of Feb. 5, 1867, ch. 27, 14 Stat. 385, authorized habeas corpus removals when the defendant was in the actual custody of state officials under state process. Act of Mar. 3, 1875, ch. 137, 18 Stat. 470. Until this time, a person had to assert most federal rights through state courts and appeal to the Supreme Court for the full vindication of federal rights in a federal tribunal (C. Wright, The Law of Federal Courts 209, 219-20 [4th ed. 1983]). On the floor debate, see , e.g., 2 Cong. Rec. 4301-4 (1874). See generally F. Frankfurter and J. Landis, The Business of the Supreme Court 61-64, *64 (1928). [BACK]

16. On the South's economic state after the Civil War in comparison to the rest of the country's, see E. Foner, Reconstruction: America's Unfinished Revolution, 1863-1877 , at 392 (1988). F. Frankfurter and J. Landis, supra note 15, at 57-60. Population during the period from 1860 to 1890 doubled, from 31,443,321 to 62,947,714. 1 U.S. Bureau of the Census, Historical Statistics of the United States 8 (1975). [BACK]

17. McCrary, "Needs of the Federal Judiciary," 13 Cent. L.J. 167, 168 (1881); Hill, supra note 5, at 304. Hill did not state which four years he analyzed. [BACK]

18. F. Frankfurter and J. Landis, supra note 15, at 91-93. One expression of these states' concerns was articulated by Samuel Moulton of Illinois in the House of Representatives ( see 15 Cong. Rec. App. 286-87 [1884]; see also 22 Cong. Rec. App. 249 [1891], Alabama Representative William Oates urging a restriction in federal jurisdiction so that more suits then filed in federal courts would be heard by state courts). [BACK]

19. A short note cannot do this story justice. While riding circuit, Field had ordered a Mr. and Mrs. Terry to jail for contempt of court in a highly contentious divorce proceeding involving the late William Sharon, who had been one of the richest men in the West. Mrs. Terry, the former Sarah Hill, claimed to have been married to Sharon. When the circuit court per Field and Sawyer rejected her various contentions, she and her new husband settled on a violent revenge. After being released from jail, Mr. and Mrs. Terry encountered Field at a train station

not far from Fresno. Mr. Terry allegedly assaulted the justice, and in the ensuing scuffle, U.S. Marshal David Neagle shot Terry dead. See C. Swisher, supra note 7, at 321-61; R. Kroninger, Sarah and the Senator (1964). [BACK]

20. See C. Fritz, supra note 5, at 39-48; C. Fritz, "A Nineteenth Century 'Habeas Corpus Mill': The Chinese Before the Federal Courts in California," 32 Am. J. Leg. Hist. 347, 348-51 (1988). On the circuit-riding situation in the Eighth and Ninth Circuits, see 1890 Att'y Gen. Ann. Rep. xviii. [BACK]

21. 2 U.S. Bureau of the Census, supra note 16, at 1083. F. Frankfurter and J. Landis, supra note 15, at 88-89. [BACK]

22. 1885 Att'y Gen. Ann. Rep. 37-39. Garland excluded bankruptcy appeals from this blueprint ( id. Act of Mar. 3, 1887, ch. 359, 24 Stat. 505). By this act district courts were given concurrent jurisdiction with the court of claims in cases raising claims against the United States where the amount in controversy did not exceed $1,000, and the circuit courts were given concurrent jurisdiction if the claim was greater than $1,000 but less than $10,000. The effect of this act was large. In the years 1887 to 1892, the attorney general reported that 922 cases were brought under it in the district and circuit courts, 22 of which went on to the Supreme Court ( see 1892 Att'y Gen. Ann. Rep. 10-11). [BACK]

23. 21 Cong. Rec. 3402-3, 3049 (1890). See Budd, "The United States Circuit Courts of Appeals," 9 L. Q. Rev. 51, 56 (1893). [BACK]

24. 21 Cong. Rec. 8133 (1890). See F. Frankfurter and J. Landis, supra note 15, at 99-100. See 21 Cong. Rec. 10218 (1890). The issues Congress made appealable directly from district or circuit courts to the Supreme Court under this proposal included questions involving the Constitution, jurisdiction, criminal matters involving the death penalty, prize cases, and constitutional challenges to state laws ( id. ). The bill made justices "competent" to sit as circuit judges but did not require such service ( id. ). This provision is embodied in the Act of Mar. 3, 1891, ch. 517, § 3, 26 Stat. 826, 827. [BACK]

25. Act of Mar. 3, 1891, ch. 517, 26 Stat. 826. 1898 Att'y Gen. Ann. Rep. v. 1897 Att'y Gen. Ann. Rep. *xv. [BACK]

26. Deady died on March 24, 1893; Field, April 9, 1899. For more on Deady, see M. Clark, ed., Pharisee Among Philistines: The Diary of Judge Matthew Deady, 1871-1892 (1975). [BACK]

27. A number of letters in the appointment file of William B. Gilbert express this sentiment. The question was, Which person from the two states would receive President Harrison's nomination? (See File of William B. Gilbert, Department of Justice Appointment Files, Ninth Circuit, 1855-1901, Tray 1, RG 60, National Archives, Washington, D.C. [hereinafter Gilbert Appointment File]). [BACK]

28. One biographer asserts that anti-Catholicism was the key reason for McKenna's electoral defeats (T. Campbell, Four Score Forgotten Men 304 [1950]). This appears to have been McKenna's own perception, which another biographer does not believe to have been well founded (McDevitt, "Joseph McKenna" 41-42 [Ph.D. diss. Catholic University of America, 1946]. 6 D. Malone, supra note 6, at 87-88; "Joseph McKenna," 30 Fed. Cas. 1384 (1897); O. Shuck, History of the Bench and Bar of California 653 (1901). [BACK]

29. O. Shuck, supra note 28, at 654. See San Francisco Examiner , Dec. 4, 1897, at 1, col. 6; McDevitt, supra note 28, at 80. Several decisions that McKenna wrote or joined evidenced his impartiality with respect to the railroad: see , e.g., Southern Pac. Co. v. Lafferty , 57 F. 536 (9th Cir. 1893); Southern Pac. Co. v. City of Oakland , 58 F. 50 (9th Cir. 1893). See 6 D. Malone, supra note 6, at 88. [BACK]

30. For biographical sketches of Gilbert, see "In Memoriam: Hon. William B. Gilbert," 52 F.2d xxxi (1931); "William B. Gilbert," 30 Fed. Cas. 1374 (1897); Judges of the United States 182 (2d ed. 1983). [BACK]

31. For the letters in this episode, see Gilbert Appointment File, especially *Wallace McCamant to Attorney General W. H. Miller, Jan. 29, 1892; Zera Snow to Senator J. N. Dolph, Jan. 30, 1892. On Gilbert's confirmation, see 28 Sen. Exec. J. 188 (1892), available at National Archives, Washington, D.C. [BACK]

32. For more on the McCamant episode, see infra Chapter Six. [BACK]

33. See generally "In Memoriam," supra note 30, at xxxi. Eighth Circuit Judge Walter H. Sanborn received his commission on March 17, 1892, thus giving him a day's seniority over Gilbert. Sanborn served until his death on May 10, 1928. On Sanborn, see Senate Judiciary Committee, "Legislative History of the United States Circuit Courts of Appeals and the Judges Who Served During the Period 1801 Through May 1972," 92d Cong., 2d Sess. 156 (1972). [BACK]

34. San Francisco Chronicle , Apr. 28, 1931, at 16, col. 5. [BACK]

35. Erskine M. Ross to Hon. Claude T. Reno, Jan. 9, 1923, Ross Scrapbook, deposited at Los Angeles County Law Library (hereinafter Ross Scrapbook). The boys from V.M.I. were pressed into service at the battle of Newmarket on May 15, 1864, and were proud to become "the only battalion of boys who ever fought and won a battle" (Wm. A. Thom, Jr., "Battle of Newmarket: A Fight Unique in the History of War," typescript in Ross Scrapbook). [BACK]

36. For a sketch of Ross and his role in the founding of Glendale, see J. Sherer, History of Glendale and Vicinity 305-6 (1922). [BACK]

37. *Ross to Reno, Jan. 9, 1923, Ross Scrapbook. Los Angeles Daily Herald , July 15, 1886, Ross Scrapbook. On these theories, see G. Cosgrave, Early California Justice: The History of the United States District Court for the Southern District of California, 1849-1944 , at 67-68 (1948). [BACK]

38. During Cleveland's presidency Field's influence clearly waned ( see C. Swisher, supra note 7, at 316-17). G. Cosgrave, supra note 37, at 68. *Francis G. Newlands to Stephen J. Field, Dec. 10, 1886, James de Barth Shorb Papers, SHO Box 81(41), Huntington Library, San Marino, California (hereinafter Shorb Papers). Francis G. Newlands to James de Barth Shorb, Dec. 12, 1886, Shorb Papers, SHO Box 81(65), quoting Field's telegram. *Newlands to Shorb, Dec. 15, 1886, Shorb Papers, SHO Box 81(66). [BACK]

39. Daily Herald , undated clipping, Ross Scrapbook. In re Grand Jury , 62 F. 834 (S.D. Cal. 1894). Chum Shang Yuen , 57 F. 588 (S.D. Cal. 1893). See infra Chapter Three. [BACK]

40. Act of Feb. 18, 1895, ch. 94, 28 Stat. 665. By retaining original jurisdiction in the old circuit courts in the 1891 Evarts Act but not authorizing any new judges to hear such cases, Congress preserved the system of circuit and

district judges serving as trial judges in circuit courts. Instead of hearing circuit court trials in panels as the system from 1789 contemplated, however, as a practical matter single judges held circuit court between 1891 and the abolition of these tribunals in the 1911 Judicial Code. The movement toward single-judge circuit courts evolved over time ( see E. Surrency, supra note 4, at 43-47). Bradley v. Fallbrook Irrigation Dist. , 68 F. 948 (C.C.S.D. Cal. 1895). See infra Chapter Five. United States v. Stanford , 69 F. 25 (C.C.N.D. Cal. 1895). See infra Chapter Two. [BACK]

41. C. Swisher, supra note 7, at 444-45. San Francisco Call , Dec. 21, 1896, at 1, col. 4. McDevitt, supra note 28, at 90-91. [BACK]

42. San Francisco Call , Feb. 27, 1897, at 3, col. 1. [BACK]

43. Quoted in San Francisco Call , June 7, 1897, at *4, col. 5. [BACK]

44. C. Swisher, Stephen J. Field: Craftsman of the Law 444 (1930; reprint 1969). According to Swisher, the justice "never forgave" President Cleveland for appointing Melville Fuller as chief justice in 1888 instead of elevating him ( id. at 319). [BACK]

45. San Francisco Call , June 7, 1897, at 4, col. 5. Macdonald, "Erskine Mayo Ross: Courageous Jurist and Generous Benefactor," 33 A.B.A. J. 1172, 1244 (1947). In the second instance, President Taft selected his former Sixth Circuit colleague, Horace Harmon Lurton. [BACK]

46. Petitions to the Honorable Eugene Hale and to the Honorable William P. Frye, File of Joseph McKenna, Department of Justice Appointment Files, U.S. Supreme Court, RG 60, National Archives, Washington, D.C. [BACK]

47. McDevitt, supra note 28, at 90. [BACK]

48. San Francisco Call , Dec. 3, 1897, at 1, col. 4. For an expression of McKenna's chances for confirmation, see San Francisco Call , Nov. 25, 1897, at 1, col. 4. [BACK]

49. Gilbert's opposition may also have derived from McKenna's clever maneuvering in 1892 to gain seniority. For reasons that the Senate records do not make clear, the Senate deferred Gilbert's confirmation until March 18, 1892, the day after McKenna's, thus giving the Californian seniority ( see 28 Sen. Exec. J., supra note 31, at 188). Scuttlebutt at the federal courthouse was that the two judges had been at loggerheads ever since McKenna had attempted to impose his own man as clerk of the northern district. Through his connections in Congress, McKenna had succeeded in getting a law passed, as a rider to an appropriation bill, that gave him patronage over this position; the same law accorded Gilbert similar power in the district of Oregon. It is difficult to know how far to credit such expressions of animus. San Francisco Call , Dec. 4, 1897, at 2, col. 3. [BACK]

50. San Francisco Call , Dec. 4. 1897, at 2, col. 1. [BACK]

51. See , e.g., San Francisco Call , Dec. 4, 1897, at 6, col. 2. On the delay, see San Francisco Call , Dec. 5, 1897, at 1, col. 7; id. Dec. 5, 1897, at 6, col. 2; id. Dec. 6, 1897, at 3, col. 1; id. Dec. 7, 1897, at 5, col. 1. San Francisco Call , Dec. 7, 1897, at *6, col. 1. San Francisco Call , Jan. 22, 1898, at *3, col. 3. On his confirmation, see 32 Sen. Exec. J. 509 (1898), available at National Archives, Washington, D.C. [BACK]

52. Historical and Contemporary Review of Bench and Bar in California 119 (1926); O. Shuck, supra note 28, at 655. [BACK]

53. O. Shuck, supra note 28, at 656. [BACK]

54. United States v. Cassidy , 67 F. 698, 702 (N.D. Cal. 1895). The charge measures eighty-two pages in the Federal Reporter and was thought to be exceeded by only one other charge in a known jurisdiction, that of Lord Chief Justice Cockburn in the Tichborne case. "William W. Morrow," 10 Calif. L. Rev. 1, 4 (1921). This charge is compiled in a book-length printed manuscript, The Tichborne Trial (1874). [BACK]

55. "William W. Morrow," supra note 53, at *6. O. Shuck, supra note 12, at 656. See infra Chapter Six. [BACK]

56. From 1900 to their respective dates of retirement, Gilbert wrote 1,172 opinions, an average of just over 39 per year; Ross produced 637 opinions, an average of 24.5 per year; and Morrow was responsible for 405 opinions, an average of 14.46 per year (E. Evans, "A Work Sheet of Judicial Labor of Appellate Federal Courts," 1943 Wis. L. Rev. 313, 321). These figures do not include the countless additional cases upon which they sat as nisi prius judges in circuit court before 1912. Morrow's statistics come out less favorably in part because he retired in 1923 and has six year of what we now call senior status service factored into his yearly average. Moreover, for all three judges, arguably their most productive years were the 1890s, before Evans began his count. Nor did he factor in the large number of trials handled by these judges in the circuit courts until their abolition in 1911. Judge William Hunt, who served on the court beginning in 1911, produced 545 opinions in his 17 years of service, an average of 32.05 per year ( id. at 321). [BACK]

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