Four documents from the bill that structured the federal judiciary. The vote from the Senate Journal. The text of the law from the National Archives. Maclay's diary entry on the day of the third reading. The sourcing standard applied throughout.
The Constitution created the Supreme Court in Article III, Section 1. It also left everything else about the federal judiciary to Congress: "such inferior Courts as the Congress may from time to time ordain and establish." No structure, no size, no jurisdiction. The First Congress had to build the federal court system from scratch.
The Senate took it up first. Senate Bill Number One of the First Session of the First Congress was a bill to establish the judicial courts of the United States. The principal authors were Senators Oliver Ellsworth of Connecticut and William Paterson of New Jersey, both of whom had attended the Constitutional Convention. The bill was distributed in printed copies to senators and to members of the legal community for comment before floor debate began. The Senate met in secret. No record of the floor debate was kept.
What was argued on the Senate floor during debate on the Judiciary Act is known almost entirely through Maclay's diary. Maclay was on the committee that drafted the bill and opposed it from the beginning. His diary documents his own objections and his observations of the proceedings. It does not document what other senators said, it records what Maclay heard, understood, and chose to write down each evening.
The Library of Congress states directly: "Maclay's Journal is one of the few accounts of Senate floor activity in the early Congresses." That is accurate. It is one account, from one senator, who opposed the bill. The Annals of Congress provide a paraphrased reconstruction of the debate drawn from newspaper accounts compiled decades later. Together they are the full record of what is known about the floor deliberations on the act that structured the federal judiciary.
The judiciary was taken up for a third reading. I can scarcely account for my dislike for this bill, but I really fear it will be the gunpowder-plot of the Constitution.
The Senate passed the Judiciary Act by a vote of 14 to 6. This is a Tier 1 fact from the Senate Journal. The House debated the bill on seven separate days and passed it on September 17, 1789. President George Washington signed it into law on September 24, 1789. The Judiciary Act of 1789 is at the National Archives.
What the act established, confirmed in the text of the law itself, was a chief justice and five associate justices for the Supreme Court, with any four constituting a quorum. It created thirteen federal district courts, one per state plus one each for Kentucky and Maine. It created circuit courts as the principal trial courts of the federal system. It created the office of Attorney General to represent the United States before the Supreme Court. It required Supreme Court justices to ride circuit, travel to the courts within their assigned region. That practice continued until 1891.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the supreme court of the United States shall consist of a chief justice and five associate justices, any four of whom shall be a quorum.
The 14 to 6 vote in the Senate is a fact. What it conceals is a significant debate about the scope of federal judicial power. Anti-Federalists, including Maclay, believed the Judiciary Act concentrated too much authority in the federal courts at the expense of state courts. They feared that federal circuit courts with broad jurisdiction would allow the federal government to reach into state affairs in ways the Constitution had not intended.
The Federalist majority, led by Ellsworth, argued that a strong federal judiciary was essential to national unity and the enforcement of federal law. The act that passed was a compromise, it allowed state courts to exercise concurrent jurisdiction over many federal questions, required federal courts to select juries according to state procedures, and included other provisions designed to appease Anti-Federalist concerns about federal reach. Maclay was not appeased. His diary documents his continued opposition after passage.