Prologue Magazine

The Civil War Era as a Crucible for Nationalizing the Lower Federal Courts

Fall 1975, Vol. 7, No. 3

By Kermit L. Hall

©1975 by Kermit L. Hall

Assessing the impact of the Civil War on the ideological and institutional underpinnings of nineteenth-century America presents a formidable historical challenge. As David Potter suggests, historians have often abused the concept of nationalism.1 Nevertheless, the unique state-centered federalism of nineteenth-century America, the heated sectional debate that preceded the war, and the emotional and physical trauma unleashed by the conflict make the broad question of the development of American nationalism worth exploring.

In its most common-sense meaning, the process of nationalization implies the subordination or elimination of regional and local diversity in favor of a central or national authority. Although the new nation created in 1787 displayed the attributes of a consolidated state in the form of a national constitution and government, the national authority in Washington had to share power with local, regional, and national interests. Certainly the federal judiciary system erected under the Constitution and defined in the Judiciary Act of 1789 embodied one of the obvious manifestations of balancing local and national interests. The three-tiered system of district, circuit, and supreme courts was subjected to a variety of local and regional pressures. These included the placement of district court boundaries within a single state, the recruitment of judges from within the state in which the court was held, the enactment of legislation requiring district and circuit courts to follow state rules of practice, the use of state facilities, the practice of requiring Supreme Court justices to serve on the circuit courts, and the recruitment of Supreme Court justices from sectional divisions that corresponded to the jurisdictional boundaries of the circuits.2 On the circuits the justices became "Republican schoolmasters" to the new nation, bringing the authority of federal government to the hustings while exposing the justices to peculiar circuit practices. Population and territorial expansion made circuit riding a time-consuming exercise forcing justices to neglect business in Washington. At the same time, lower court dockets, especially in commercial centers, burgeoned.3

Throughout the antebellum era nationalist spokesmen demanded a centralization of the organization and administration of the courts. Beginning with the short-lived Judiciary Act of 1801 and continuing to the eve of the Civil War, efforts to assert fuller national authority over the federal courts involved creation of an independently manned circuit court of appeals, providing the attorney general with supervisory powers over finances and personnel, and elimination of circuit riding. These efforts failed, in part, because a strong national court system threatened to upset the sectional balance of power. On the eve of the Civil War, administrative decentralization and individuality characterized the federal courts.4 For students of the Civil War era concerned with the problem of nationalization, the attempts of the Republican party to adjust federal judicial structure to deal with the imperatives of the war and Reconstruction and to relieve crowded dockets pose important questions. Were the 1860s characterized by a steady nationalization of the federal court system? Did the Republican Congress seek to elevate the federal courts above the local and regional constituencies in which they had been traditionally embedded?

Until recently the answers to these questions constituted one of the few settled issues on the "dark and bloody ground" of Reconstruction historiography. The traditional and long-accepted interpretation ignored the lower federal courts, stressed the supposedly vindictive role that congressional Republicans pursued during and after the Civil War in attempting to undermine the Supreme Court, and concluded that, on balance, the Republicans were hostile to judicial power.5 In this view, the judiciary laws of the 1860s were manifestoes designed to limit the high court with only minor implications for the remainder of the federal judiciary. A revisionist interpretation has set the historiographic pendulum swinging in an opposite direction, arguing that congressional Republicans sought to employ the judicial power "to further party aims, whether they were political or economic."6 Such actions, moreover, had broad implications for the entire judicial system. Pushing aside the view of Frankfurter and Landis that "the Civil War put out of men's minds such placid concerns as judicial organization," more recent scholarship argues that the Congress gave "nervous priority to judicial organization." To underscore this conclusion the revisionists correctly demonstrate that Congress expanded the jurisdictional limits of the lower federal courts during the era to include "confiscation, emancipation, disloyalty, military governments, Reconstruction, and racial as well as a mix of non-military matters." Indeed, far from being hostile toward the courts, congressional Republicans, in an "anti-institutional age," shunned new bureaucratic structures to deal with the impact of the war, adopting instead "judicial enforcement [as] traditional and inexpensive." Finally, they buttress their conclusions with the argument that major legislation involving the federal courts during the era "evoked almost no antijudiciary rhetoric."7

The revisionist interpretation is useful in underscoring Republican support for judicial power and the potential utility of the lower federal courts in serving Republican goals during the war and Reconstruction. The revisionists, however, while aware of organizational imperatives, treat the "nervous priorities of judicial organization" by citing jurisdictional changes that augmented especially the responsibilities of the lower federal courts. By stressing jurisdictional over organizational changes, the revisionists' view fails to emphasize sufficiently the local and regional pressures operating on a Republican party squeezed between a traditional commitment to the idea of judicial representation and the need for more and better administered courts. Republican Congressman William Lawrence of Ohio, in December 1867, argued that increased jurisdiction had to be complemented by a heightened judicial presence. Lawrence proposed doubling the number of district courts in Texas from two to four in order to promote the efficient discharge of new duties given them under "the Internal Revenue [Act], the Bureau of Freedmen and Refugees [Act], the general Bankruptcy Act, and 'an act to . . . facilitate the Restoration of government in the Rebel States."' "All of which," Lawrence observed, had "greatly increased the powers and duties of the Judges and Officers of the District Courts of the United States."8 Thus, thorough enforcement required not only additional jurisdiction but a viable judicial organization and a sufficient federal court presence to treat with dispatch cases arising under the new jurisdiction.

During the 1860s the Republican Congress addressed the issue of federal judicial organization as it involved the Office of Attorney General, division of district courts, the Court of Claims, and the relationship of the Supreme Court to the circuit and district courts. The Office of Attorney General, despite the consolidating efforts of Caleb Cushing in the mid-1850s, had slight direct control over the finances, personnel, and judicial business of the courts. Increases in district court litigation had traditionally been resolved by dividing states into more than one district, halving the dockets of overloaded courts. The Court of Claims, created in the mid-1850s, fulfilled only part of its original purpose of relieving Congress of the burden of dealing with claims against the federal government. With the Civil War, adjudication of private claims would increase. Finally, the Republican Congress confronted the necessity of rearranging the circuits to end the southern majority on the Supreme Court, to equalize population in the circuits, to extend the circuit court system to those states that had not been included since the Judiciary Act of 1837, and to reconsider the practicality of circuit riding in the face of the Court's inability to clear its dockets.

Under the leadership of Senator Lyman Trumbull and Representative James F. Wilson, chairmen of the judiciary committees of their respective houses, Republicans moved promptly to correct long-standing deficiencies in the federal court system.  During the early days of 1861, Trumbull steered legislation through the Thirty-seventh Congress providing the attorney general with power to supervise lower court officers and finances.9 The legislation represented a modest first step toward fuller national control of the lower courts. But it was subsequently undermined by legislation offered at the behest of Secretary of the Treasury Salmon P. Chase, who resisted the diminution of the traditional role of the solicitor of the treasury in collecting the emoluments of court officers.10 In 1862, after a prolonged intraparty struggle pitting moderates and conservatives against the more radical antijudiciary faction of the party led by John P. Hale of New Hampshire, Wilson obtained congressional approval of legislation strengthening the Court of Claims. Its most important provision divorced the court's decisionmaking process from Congress, making its judgments in cases of claims against the government reviewable by the Supreme Court but denying disgruntled suitors their previous right of appeal to Congress.11 On the question of other reforms Republicans proved less willing to extend the federal judicial presence.

During the war, increases in population and litigation prompted eight northern states to seek a division of their district courts. Under Trumbull's leadership the Senate Judiciary Committee proved especially reluctant to report favorably on such legislation. The Illinois senator counseled against the "unnecessary, inefficient, and expensive" division of district courts, reasoning that more courts brought forth more suitors, leading inevitably to an increase in litigation and even more appellate business before the Supreme Court. The rivalries that flared over such legislation indicate that Republican representatives approached the courts as vested local and regional institutions. In debating a division of Michigan, a measure which the Senate Judiciary Committee opposed but Congress adopted, William Pitt Fessenden wondered aloud why Michigan would seek an additional court when "one district court suffers in New York City?" Jacob Howard replied by reminding the Maine senator that Michigan was "larger than all the New England states put together." In considering legislation to provide an additional district court for New York, a measure passed by Congress with Trumbull's grudging support, western senators asserted that easterners were much more amenable to such legislation when it directly affected them.12 Regional and local imperatives also undermined the initial Republican effort to reform the circuit courts.

Demands for significant change in the circuit court system, through the elimination of circuit riding, the creation of an intermediate court of appeals, and a new division of labor in the district courts, came primarily from spokesmen outside Congress. Samuel Treat, judge of the Eastern District Court for Missouri, urged extension of the federal court system, providing for more district courts and a separate bench for circuit judges.13 David Davis of Illinois also supported the creation of an independent circuit court judiciary, with a five-man Supreme Court in Washington relieved from circuit riding.14 Lincoln in his inaugural address pressed for modifications in the federal courts but balked at offering more than general recommendations.15 In 1861 the New York Tribune, after a healthy castigation of the southern-dominated Supreme Court, concluded that Congress should undertake the "most urgent" task of a "thorough reorganization of the various Federal Courts." The New York paper noted that crowded dockets, poor administration, low salaries, and inadequate facilities militated against an efficient court system.16 In a similar vein, Solomon Foot, president pro tempore of the Senate, linked the necessity of new judicial organization to the problems of the war and the prospects of Reconstruction, concluding that the Lincoln administration had an obligation to "provide judicial machinery" sufficient "to regenerate the present generation of Southerners rapidly approaching barbarism."17

In Congress, conservative and moderate spokesmen concerned with local and regional requirements prevailed in the judiciary debates. Republicans from the trans-Mississippi region and the Far West sought inclusion in the circuit court system and new appointees on the Supreme Court to represent their regions. Excluded from the circuit court system since statehood, these regional interests were reluctant to forfeit their opportunity to gain a seat on the high court either by reducing the size of the Court or by ending the practice of appointing justices from the circuits.18 In addition, representatives from the Middle West, Ohio and Illinois in particular, clamored for representation on the high court and a proper alignment of circuits that would encompass states with mutual legal and business interests. These regional and state advocates of limited circuit court reform received administration support from Edward Bates, Lincoln's attorney general, who urged a realignment of the circuits but resisted broader change because of concern that more radical members of Congress might seize the opportunity to manacle the authority of the Supreme Court.19 Further complicating circuit reorganization was pressure on the Lincoln administration to woo border state and southern Unionists by giving them an appointee on the high bench. Joseph Holt of Kentucky and James F. Petigru of South Carolina were considered.20 But, in the end, regional and local interests within the Republican party dictated the course of Lincoln's appointments as well as the organization of the courts.

In the regional tug-of-war that culminated in the Judiciary Act of 1862, Ohio governmental, business, and legal interests grasped the initiative, attempting to insure that court reform would furnish the state a Supreme Court justice and membership in a circuit with other states having similar economic and legal interests. Ohio Republicans accented "the intimacy of [Ohio] business intercourse between" Indiana and Michigan and conveyed their "anxiety" that Noah Haynes Swayne be appointed to replace the recently deceased John McLean.21 Fellow partisans quickly assailed their Ohio colleagues.  The Iowa delegation scrambled to gain an autonomous circuit for the trans-Mississippi states, and Illinois party members struggled to retain their traditional commercial and legal bond with the upper Midwest. Together they successfully thwarted the Ohio plan, charging that it was self-serving and failed to distribute equitably population among the circuits.

Operating under the rubric of population equality Congress finally settled, early in 1862, on a modified scheme proposed by Wilson of Iowa. The legislation placed Ohio and Indiana in one circuit, Michigan, Illinois, and Wisconsin in another, and created the trans-Mississippi circuit sought by Iowa.22 Shortly thereafter, Lincoln appointed Samuel Miller of Iowa, David Davis of Illinois, and Noah Haynes Swayne of Ohio to the Supreme Court. All of this was accomplished by reducing the number of wholly southern circuits from five to three.23 Instead of subordinating regional diversity in the Judiciary Act of 1862, the Republicans succeeded in creating a northern-dominated court system without affecting circuit riding or assisting in making the dockets of the Supreme Court and the lower courts more manageable.

The revisionist interpretation deems the Judiciary Act of 1862 the "first phase" of reconstruction in which "the Republicans had achieved their avowed purpose of equalizing the circuits."24 Certainly, in bringing an end to the judicial embodiment of Calhoun's "concurrent majority," the act affected a step toward the assertion of northern interests. But if John Bingham could argue that the lack of population "reduced the number of circuits in the extreme south where they are not needed," Horace Maynard of Tennessee could only lament that his state's position in the geographically large, new, sixth circuit made federal judicial enforcement more difficult. The Tennessee Unionists complained that the distance from "Knoxville . . . to Texas is further than it would be to Portland, Maine. Geographically, it might as well be attached to the New England states. Legally it would be much better."25 If the 1862 act was, indeed, intended as a first step toward reconstruction, Congress proved surprisingly shortsighted, since the legislation diminished the federal judicial presence in the area where it would prove most necessary after hostilities ended. The Republicans' concern was not with reconstruction but rather with regional and party interests in the Northwest and the trans-Mississippi states.  Indeed, a general consensus existed among Republicans that a fuller renovation of the courts was unnecessary and could, in any event, be postponed until the end of the conflict.26

In bringing forth the Judiciary Act of 1862, congressional Republicans subscribed to three broad ideas about the structure of the federal courts. First, they accepted the traditional notion of judicial representation that committed Supreme Court justices and district court judges to duty in the circuits. Second, they endorsed the idea of molding the federal courts to the dominant regional interests. Third, they adopted the traditional view, as expressed by Lincoln, that the Supreme Court should be of "convenient size," in order that the number of justices equal the number of circuits.27 Taken together these ideas militated against nationalization of federal court structure. The progress of the war and the process of reconstruction, however, brought new jurisdiction and a new role for federal courts in the South that challenged these traditional notions.

The necessity of reconstructing the South cast in sharp relief the limitations of the Judiciary Act of 1862 and Republican allegiance to traditional notions about the structure of the federal courts. In addition, the increase in litigation in northern lower federal courts, prompted by Republican economic and wartime legislation, and the crowded docket of the Supreme Court demanded congressional action. From the South newly freed blacks and Unionists confronted Congress seeking federal court protection.  At the same time, a variety of economic interests above and below the Mason-Dixon Line urged an immediate restoration of the federal courts.

The performance of southern state courts in treating Unionists and blacks immediately following the war challenged radical and moderate congressional Republicans who sought more than token reconstruction. John Underwood, the district court judge for Virginia, wrote Salmon P. Chase in April 1865 urging the intervention of federal judicial authority to thwart local secessionists in the state who made it "utterly impossible for a Union man . . . to get justice."28 Former Union soldiers in Virginia exhorted Congress to enhance the federal judicial power, because under the Johnson program of reconstruction "the rebel party has . . . got all the judicial power in their hands and they are not ashamed to Use it."29 A Southampton County, Virginia, physician wrote Lyman Trumbull that the local "proslavery oligarchy" controlled the state courts, confiscating the property of citizens who had supported the Union. The doctor beseeched Trumbull to provide federal courts "where we can get even handed justice, it will do more to bring the secessionists to their senses than any thing you can do."30 Similar pleas came from Unionists in Missouri, Texas, and North Carolina.31

Newly freed blacks suffered under the operation of local custom and the Black Codes. An agent of the Freedmen's Bureau in New Orleans, for example, wrote in the summer of 1865 that the rulings of the provisional state courts "have been such of late, so far as colored citizens are concerned, as to shock every truly loyal man among us."32 Freedmen's Bureau courts, created on an ad hoc basis, had limited judicial authority and an ambiguous relationship with the state and federal courts.33

Northern commercial and financial interests also sought a quick restoration of federal justice. Troubled by the destruction of federal court facilities in the South and the operation of state statutes of limitation, they turned to Congress for assistance. In 1866 the New York City Chamber of Commerce and the Boston and Philadelphia Boards of Trade urged Congress to use the federal courts to settle problems related to pre-war debts and state statutes of limitations.34

When Congress convened in December 1865 the courts were potentially instruments to assist in Republican reconstruction. Yet the Judiciary Act of 1862, in rewarding Republican partisans in the Northwest, diminished the visibility of the federal circuit courts in the South. Protection of loyalists and freedmen presented an essentially similar problem: effective federal power, either in the form of judicial or military authority, would have to be brought to bear against pervasive local interests in the South. An augmentation of federal jurisdiction, while imperative, could not of itself provide sufficient protection. For the courts to be effective they had to establish a presence sufficient to afford suitors ready access. Yet, the traditional concept of embedding federal district courts in the local constituencies they served made them as potentially responsive to local interests as to the dictates of national authority promulgating a program of reconstruction. The federal courts could as readily serve the interests of ex-Confederates seeking to return to pre-war conditions as they could Republicans concerned with building partisan strength and sustaining Unionists and freedmen.35 Indeed, radicals such as Thaddeus Stevens concluded that reliance on judicial authority to implement even a small portion of the Republican program in the South would only operate to the advantage of former rebels.36 Partisan and ideological considerations aside, the Republican Congress had to come to terms with the burgeoning dockets of northern lower courts and the Supreme Court.37 The gradual restoration of federal district courts in the South solved, in part, the difficulties of northern creditors, although Congress refused to pass special legislation.

During the first session of the Thirty-ninth Congress, Republicans attempted to complete the unfinished business of judicial reform begun in 1862. Senator Ira Harris, a moderate New York Republican, consolidated three different proposals for judicial reform into a single measure that he introduced to the Senate on January 29, 1866.38 The legislation contained two key provisions. First, the bill sought to lessen the burden of circuit riding for Supreme Court justices by creating an intermediate court of appeals manned by the district court judges and the Supreme Court justices in each of the circuits. Second, it contemplated a reduction in the appellate business of the federal courts by dramatically increasing the amount in controversy necessary to appeal to the intermediate court of appeals and the Supreme Court. Harris preserved judicial representation by perpetuating circuit riding, while attempting to clear the docket of the Supreme Court by damming up the flood of appellate cases before they could reach the high court. The measure also abolished the circuit courts, giving their jurisdiction to the district courts. The legislation encountered slight opposition, passing the Senate 23 to 6. In the House, however, the bill died in committee.39

The Harris bill has been characterized as a "well considered measure to reform the federal judiciary system" that failed due to the meddling of Chief Justice Chase.40 Although there is no direct evidence to suggest the bill languished for any other reason, questions can be raised concerning its viability. Part of the Republican press questioned assigning a justice solely to appellate duties, invoking the idea of judicial representation by asserting that the founders of the nation had intended that the justices "mingle in the strife of jury trials."41 Moreover, critics charged, the proposed legislation assisted the high court by heaving a new load of business on the district courts.  A frustrated Thomas Drummond, judge of the Northern District Court for Illinois, complained to Trumbull that "Eastern members" clung to a "misapprehension as to the amount of labor in some of the Western Districts."42 The New York Times bluntly concluded that the legislation would "swamp . . . at once" the district courts.43

The Harris bill embodied only parts of the traditional nationalist solution to the problem of relieving the Supreme Court of its backlog of cases. By removing the justices from circuit duty they may well have had more time to conduct the business of the Court in Washington. But the legislation did not authorize appointment of a new body of judges to man the proposed intermediate court of appeals. Instead the justices would still have to leave Washington to hear cases in the appeals courts, although district court judges would be available to assist, as they had in the circuit courts. With the old jurisdiction of the circuit courts thrown upon the district judges the business in those courts would increase. The Harris bill may have been "well considered," but its impact would probably have been limited to reducing the flow of cases on appeal to the Supreme Court.

In the circumstances of the war and Reconstruction the Harris bill underscored the reluctant commitment of Republicans to nationalize the federal judicial system. It made no provision for more district courts to dispatch the increased workload that would fall upon them. Moreover, Senate Republicans seemed not to have appreciated that the bill contradicted their more nationalistic goals in the Civil Rights Act. The New York Times predicted that raising the amount in controversy for appeals would exclude poor blacks from the intermediate appellate courts and the Supreme Court.  Although the district court judge could authorize an appeal to a higher court based on an "important constitutional question," the Times cautioned that this would only make the judge "more susceptible . . . to local pressures." The New York paper warned that "there were loopholes enough in the civil rights bill to allow any District judge . . . in the Southern States to practically destroy the bill and render it of no effect whatever."44 Petitioners from the New York City bar complained that the measure would "tend powerfully to sectionalize the Federal Courts . . . placing the independence of the Supreme Court . . . at the will of local judges."45 As a measure to reform the lower federal courts and to assist in the implementation of freedmen's rights the bill seemed of dubious value. Similar proposals brought forward during the next two years failed even to receive Senate approval.46

The Times' fear of the potentially disruptive forces of localism on the federal courts in the South appeared justified. For instance, a Mississippi carpetbagger wrote Charles Sumner encouraging the removal of the federal court from Jackson to Vicksburg because the "influence of old political hacks . . . makes it positively impossible to convict at Jackson any offender against the Revenue Laws."47  At the same time, Judge Robert A. Hill, of Mississippi, wrote to Trumbull and Chase that the delicacy of his task required the willing cooperation of members of the local bar, and that to obtain that cooperation it was often necessary to bend to local considerations.48 Hill proved a source of strength for the federal government, but Richard Busteed, in Alabama, collapsed under local pressures. In June 1867 the military commander of Alabama charged Busteed with acting like "a madman . . . quarreling with colored people," employing "former rebels" to serve as reporters in his court, and refusing "to be-friend the Union men of Mobile, to lend them his court room to meet in."49 Even where the federal judiciary made a strong showing it encountered difficulties in treating prominent ex-Confederates. Judge John Erskine of Georgia wryly observed that his court usually convicted a "haggard and miserable looking set of creatures," while the "well to do" leaders of the rebellion evaded federal enforcement.50

In 1869 a biracial group of memorialists from Paducah, Kentucky, explained that simply giving the federal courts jurisdiction was not enough. Requesting "greater facilities for applying to the Federal Courts," the petitioners noted that "the largest proportion of Negroes live more than 200 miles" from the meeting places of the federal courts. "As a class," the memorialists reminded Congress, "the negroes are . . . poor, ignorant & timid. They can poorly afford to, and are not likely, in one case of wrong out of ten, to go with their witnesses 200 or 300 miles to court to contend against their white neighbor for their rights or to prosecute for the wrongs done to them." The solution was a proliferation of federal district courts in Kentucky to as many as "eight or twelve."51 Similar petitions came from Maryland and Texas.52 Thus pervasive localism in the South and an inadequate judicial presence threatened to undermine the efficient conduct of Republican reconstruction.

Amidst these pressures, in late 1868, Lyman Trumbull introduced what was to become the Judiciary Act of 1869. Trumbull sensed the necessity of relieving the Supreme Court docket, assisting district court judges in the efficient operation of their courts, and the requirement to strengthen the federal judicial presence in the South. But he refused to subscribe federal revenues to what he considered a potentially wasteful increase in the number of district courts which would only send more cases to the high court on appeal. The penurious Trumbull sought reform at the least possible cost. The Illinois Senator's proposal fixed the size of the Supreme Court and the number of circuits at nine, provided for nine independent circuit court judges, and required each justice of the Supreme Court to hold circuit court at least once every two years.53 Trumbull attempted to harmonize Republican commitment to a representative judiciary with southern realities and crowded court dockets. He understood that the Judiciary Act of 1862 had substantially altered the regional balance on the Supreme Court and the circuits. An increase in the number of circuits would mean an increase in the number of Supreme Court justices and a potential resurgence of southern strength in the judiciary. Thus, instead of increasing the size of the high court dramatically by adding new southern circuits, Trumbull proposed an expansion in judicial personnel.& With President Johnson about to leave office, the selection of the new circuit judges would most likely fall to his successor.

In supporting the legislation, Trumbull cited three fundamental considerations.  First, the perennial problem of the Supreme Court docket, some two or three years behind, amounted to a "denial of justice." Second, the heavy business in the district courts, especially in the southern states, generated by the war and Reconstruction, demanded an increase in judicial personnel.  The Illinois senator believed it was "more economical" to appoint circuit court judges than to "proliferate" the number of district court judges. Third, Trumbull concluded that circuit court judges offered a means of cutting through the parochial interests of the various districts that "cannot be done . . . by the district courts as at present organized." At the same time, northern hegemony on the high court would be preserved.54

The Trumbull proposal received bipartisan and cross-sectional support. William Stewart, a Nevada Republican, deemed the creation of circuit judges the "best reconstruction measure that could be adopted." Frederick Sawyer, a Republican carpetbagger from South Carolina, forcefully supported the legislation exclaiming: "I regard the bill . . . as one of the most important . . . measures before the Congress, with regard to the Southern States. . . . The necessity for more judges, for more force in the judicial department in the South, is at this moment a necessity which I consider second to no other for that section." California Democrat Eugene Casserly echoed this conclusion, arguing that any further delay in assisting the federal courts in the South would "work much mischief." Yet, the measure hardly threatened to tip the balance of power in the South in favor of blacks or Unionists, since it also received support from Democrats such as Garrett Davis of Kentucky.  Proponents of the measure were also quick to emphasize that the measure was directed as well at federal courts in the North, which required assistance since "congressional legislation for the last five years . . . have imposed on the federal courts . . . a very great . . . addition . . . of duties."55

Opposition to the legislation came from Republicans reluctant to erode the ideal of judicial representation, or skeptical of the judicial relief the measure would provide. George Williams of Oregon feared the creation of a "Star Chamber" by making the Supreme Court into a "mere court of error." Charles Drake of Missouri characterized the bill as "an exploded, defeated and rejected scheme," suggesting Congress remedy the problem by creating a Supreme Court of fifteen members, with seven of the justices serving on a revolving basis as full time circuit court judges. Roscoe Conkling, of New York, the sharpest critic of the legislation, brushed it aside as too little, demanding more sweeping reform.56 n neither house were questions raised as to the necessity of strengthening the federal judicial presence in the South or assisting northern district court judges.

The Trumbull bill actually passed Congress twice. The bill received congressional approval during the last days of the second session of the Fortieth Congress. Johnson, however, for reasons not altogether clear, pocket vetoed the legislation. In the first days of the Forty-first Congress, Trumbull re-introduced the legislation, which won quick approval.57

Throughout the 1860s Republicans burdened the federal courts with new jurisdictional obligations but refused to modify court structure or provide additional resources. Thus, in stressing the new jurisdiction of the federal courts, the revisionists illuminate only part of the Republican approach. The party's blueprint for modern America may well have included a fuller role for the federal courts, but it was to be conducted within the traditional limits of courts embedded in local and regional constituencies. Republicans proved surprisingly tradition-minded in their thinking about court structure, clinging to the notion of judicial representation and circuit riding even when confronted by the realities of crowded dockets and pleas from southern blacks and Unionists for more courts. Moreover, as Everett Swinney has demonstrated, even after the Republicans, in 1871, reorganized the Office of Attorney General and created a Department of Justice, the federal court system proved unable to enforce legislation in the South designed to safeguard freedmen.58 In the North new circuit judges apparently had only a limited impact on stemming the flood of litigation to the Supreme Court or assisting materially in relieving district court judges.59 While some Republicans, such as Roscoe Conkling, clamored for more sweeping change, the bulk of the party seemed satisfied to break the southern hold on the Supreme Court through a reshuffling of circuits. As institutional structures, the federal courts, although assigned new jurisdiction, ended the decade of the 1860s in much the same condition they had begun, characterized by administrative decentralization and individuality. The changes made in 1862 and 1869, and those proposed in 1866, were more cosmetic than substantial.  At least in their institutional structure the federal courts proved resistant to the impact of the Civil War and the first years of Reconstruction. For their part, the Republicans emerged as at best reluctant nationalizers, willing to extend the jurisdiction of the courts but unwilling to break from more traditional notions of parsimonious government and judicial representation that emphasized local and regional diversity over the assertion of national or central authority.

Kermit L. Hall is President of Utah State University. Dr. Hall has an M.S.L. Degree from Yale University Law School, a Ph.D. in History from the University of Minnesota, an M.A. Degree from Syracuse University, and a B.A. Degree from the University of Akron.

A historian and legal scholar, Dr. Hall has written extensively on American legal history, including The Magic Mirror: Law in American History, published by the Oxford University Press, and editor of The Oxford Companion to the Supreme Court of the United States, an award-winning volume, and editor of the forthcoming Oxford Companion to American Law. He was one of five persons nominated by President Clinton and confirmed by the U.S. Senate to serve on The President John F. Kennedy Assassination Records Review Board.


The author wishes to express his appreciation to Herman Beiz, University of Maryland, for his helpful suggestions on an earlier version of this essay.

1. David M. Potter, "The Historian's Use of Nationalism and Vice Versa," American Historical Review 67 (1962): 924–950. On the problems of nationalism and it; development in nineteenth-century America, see Yehoshua Arieli, Individualism and Nationalism in American Ideology (Cambridge, Mass., 1964), esp. pp. 158–180, 308–315, 341–342; and Paul C. Nagel, This Sacred Trust: American Nationality, 17981898 (New York, 1971), esp. pp. 129–246.

2. On the impact of local and regional interests on the federal courts, see Richard J. Richardson and Kenneth N. Vines, The Politics of Federal Courts (Boston, 1970), pp. 36–55; Herbert Jacob, "The Courts as Political Agencies— An Historical Analysis," in Studies in Judicial Politics, ed. Kenneth N. Vines and Herbert Jacob (New Orleans, 1962), pp. 9–50; and R. Kent Newmyer, "Justice Joseph Story on Circuit and a Neglected Phase of American Legal History," American Journal of Legal History 14 (1970): 112–135. On the early federal courts, see Dwight F. Henderson, Courts For a New Nation (Washington, 1971), pp. 4–15; and Mary K. Tachau, "The Federal Courts in Kentucky, 1789–1816" (Ph.D. diss., Univ. of Kentucky, 1972), esp. pp. 14–38.

3. Ralph Lemer, "The Supreme Court as Republican Schoolmaster," in The Supreme Court Review, ed. Philip B. Kurland (Chicago, 1967), pp. 4–55. A precise estimate of the amount of business conducted in lower courts before the war must be impressionistic at best because the government did not maintain statistics. However, fragmentary data, collected at the behest of Congress and the secretary of the interior, suggests a steady increase, especially at major conunercial centers such as Chicago and New York. See Senate Doc. 50, 25 Cong., 3 sess., ser. No. 339; Senate Doc. 183, 25 Cong., 3 sess., ser. No. 340; Senate Doc. 229, 25 Cong., 3 sess., ser. No. 340; and House Doc. 69, 35 Cong., 1 sess., ser. No. 955. For scattered returns during the 1850s, see Report of the Circuit Court Clerk of the Northern District of Illinois, Dec. 12, 1861, Source Chronological Files, III., 1850–62; Report of the Circuit Court Clerk of Maryland, Nov. 1861, Source Chronological Files, Md., 1854–63; Report of the Circuit Court Clerk of Missouri, Dec. 12, 1861, Source Chronological Files, Mo., 1854–64; and Report of the Circuit Court Clerk, Northern District of Ohio, Dec. 14,1861, Source Chronological Files, Ohio, 1850–61; all in Records of the Department of Justice, Record Group 60, National Archives (hereinafter cited as RG __, NA). These data also suggest the justices were spending fewer and fewer days holding circuit court during the 1850s, leaving those responsibilities to district court judges.

4. Felix Frankfurter and James M. Landis, The Business of the Supreme Court: A Study in the Federal Judicial System (New York, 1928), pp. 14–53; Kathryn Turner, "Federalist Policy and the Judiciary Act of 1801," William and Mary Quarterly 22 (1965): 9–32; Kermit L. Hall, "Federal Judicial Reform and Proslavery Constitutional Theory: A Retrospect on the Butler Bill," American Journal of Legal History 18 (1973): 166–184; Peter Graham Fish, The Politics of Federal Judicial Administration (Princeton, 1973), pp. 3-14.

5. William A. Dunning, Essays on the Civil War and Reconstruction and Related Topics (New York, 1898), pp. 121–122, 136–138; Dunning, Reconstruction: Political and Economic: 18651877 (New York, 1962), pp. 94, 256–258; Charles Warren, The Supreme Court in United States History, 3 vols. (Boston, 1922), pp. 1–219; James G. Randall and David Donald, The Civil War and Reconstruction (Boston, 1961), pp. 108–114, 646, 667–668; Alfred H. Kelly and W. A. Harbison, The American Constitution, 4th ed. (New York, 1970), pp. 480–486; Leonard P. Curry, Blueprint for Modern America (Nashville, 1968), pp. 207, 243; James G. Randall, Constitutional Problems Under Lincoln, rev. ed. (Urbana, 1951), p. 9; Frankfurter and Landis, Business of the Supreme Court, pp. 62–77.

6. Stanley I. Kutler, Judicial Power and Reconstruction Politics (Chicago, 1968), p. 159; H. M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York, 1973), pp. 224–242; William M. Wiecek, "The Reconstruction of Federal Judicial Power," American Journal of Legal History 13 (1969): 333–359. Charles Fairman, Reconstruction and Reunion, 186488: The Oliver Wendell Holmes Devise (New York, 1971), 6, pt. 1, notes the increase of judicial power but argues that there was fundamental animosity between Republicans and the Court.

7. Hyman, A More Perfect Union, pp. 224, 227; Kutier, Judicial Power, p. 16.

8. Preamble to H.R. 283, House Committee on the Judiciary, File 41A-FI3.4, Records of the United States House of Representatives, RG 233, NA.  See also Congressional Globe, 40 Cong., 2 sess., p. 162.

9. 12 Statutes at Large 285; Congressional Globe, 37 Cong., 1 sess., pp. 62, 134–136, 365.

10. Salmon P. Chase to Lyman Trumbull, July 29, 1861; Edward Bates to Trumbull, July 31, 1861, Lyman Trumbull Papers, Library of Congress.

11. 12 Statutes at Large 752; Congressional Globe, 37 Cong., 2 sess., pp. 422,1672–1675; ibid., 3 sess., pp. 154, 246, 270, 303, 371, 393, 413, 480, 523, 625, 1322, 1326, 1341, 1435–1438, 1479, 1482, 1490, 1524, 1533. The Supreme court overturned part of the legislation in Gordon v. United States, 2 Wallace 561 (1865), but approved subsequent legislation in United States v. Klein, 13 Wallace 128 (1872).

12. Congressional Globe, 37 Cong., 3 sess., pp. 1156, 1157; ibid., 38 Cong., 2 sess., p. 983. Eastern concerns for the viability of the courts were expressed in New York Times, Feb. 27, Mar. 4, 1862, and J. S. T. Stanahan to Trumbull, Jan. 25,1865, Trumbull Papers, LC.

13. Samuel Treat to David Davis, Nov. 21, 1862, Abraham Lincoln Papers, LC.

14. Davis to William Orme, May 17, 1861, Ward Lamon Papers, Huntington Library; William A. Bradley to Elihu B. Washbume, June 20,1862, Washburne Papers, LC.

15. Senate Doc. 1, 37 Cong., 2 sess., ser. No. 1117, pp. 8–10.

16. New York Tribune, Dec. 12, 1861. See also Chicago Tribune, Mar. 4, 1861; N.Y. Tribune, Mar. 26, June 10, 1861, Dec. 3, 1862.

17. Solomon Foot to Preston King, June 7, 1861, Trumbull Papers, LC. See also Wait Talcott to Trumbull, May 9, 1862; Talcott to Trumbull, Jan. 11, 1863, ibid.

18. Senate Misc. Docs. No. 73, 37 Cong., 2 sess.,ser. No. 1124. Petition to Senate, Senate Committee on the Judiciary, File 37A-E6, RG 46, NA.

19. Marvin R. Cain, Lincoln's Attorney General Edward Bates of Missouri (Columbia, Mo., 1965), pp. 182–189.  More radical proposals designed to undermine the authority of the Court were made by John P. Hale and James Ashley. For Hale, see Congressional Globe, 37 Cong., 2 sess., pp, 8, 26–28; ibid., 38 Cong., 1 sess., p. 753. For Ashley, see ibid., 36 Cong., 1 sess., app., pp. 365–368.

20. Nashville Union and American, Mar. 10, 1861; Davis to Orme, Jan. 27, 1862, Henry Pratt Collection, Chicago Historical Society; petition of citizens of New York to Abraham Lincoln, Mar. 4, 1862, in Roy P. Basler, ed., The Collected Works of Abraham Lincoln (New Brunswick, 1953), Vol. 8, p. 302.

21. William Dennison to Trumbull, Dec. 10, 1861; Samuel Galloway to Trumbull, Dec. 10, 1861; William Duncan to Trumbull, Dec. 11, 1861, Trumbull Papers, LC.  Similar pleas were forthcoming from Iowa, Indiana, and Illinois. See petitions of citizens of Iowa, Indiana, Illinois, Senate Committee on the Judiciary, File 37A-H8.2, RG 46, NA.

22. S-89, Senate Bill File 37A-B2, RG 46, NA; H-116, House Bill File 37A-B1, RG 233, NA; Congressional Globe, 37 Cong., 2 sess., pp. 33, 167–168, 173–175, 187–188, 288, 398, 469, 736, 879, 949, 2194, 2561–2563, 2666, 2675, 2914, 3089.

23. The Judiciary Act of 1866 subsequently reduced to one the number of circuits composed wholly of former slave states (14 Statutes at Large 209). In 1863 Congress finally brought California and Oregon into the system as a 10th circuit (12 Statutes at Large 194).

24. Kutler, Judicial Power, pp. 17–18.

25. Congressional Globe, 37 Cong., 2 sess., pp. 173, 2563.

26. Cain, Lincoln's Attorney General, pp. 182–189. Frame No. 13726, n.d., Abraham Lincoln Papers, Microfilm Collection, LC, has a scrawl in Lincoln's handwriting indicating that little more could be accomplished until the end of the war. See also Truman Smith to Trumbull, Jan. 10, 1862, Trumbull Papers, LC.

27. Senate Doc. 1, 37 Cong., 2 sess., ser. No. 1117, p. 8.

28. John C. Underwood to Chase, Apr. 25, 1865, Vol. 95, Chase Papers, LC; scrapbook of John C. Underwood, p. 119, LC.

29. Petition of soldiers of Lee and Scott counties, Va., House Committee on the Judiciary, File 39A-H14.5, RG 233, NA. On the same theme in different southern states, see Resolution of the Legislature of Kansas on the Federal Courts in Arkansas, File 40A-H10.4; petition of the "loyal bar" of New Orleans, File 39A-E6, Senate Committee on the Judiciary, RG 46, NA; David Richards to Trumbull, May 7,1866, Trumbull Papers, LC.

30. Thomas J. Pretlow to Trumbull, Jan. 8, 1866, Trumbull Papers, LC.

31. Petition of "loyal citizens" of Texas, Senate Committee on the Judiciary, File 39A-E6, RG 46, NA; petition of Unionists in Texas for protection from rebel courts Jan. 1866), House Committee on the Judiciary, File 39A-H14.5, RG 233, NA. Note also the plea of William Alexander for physical force to restore order in Texas. Alexander to Chase, July 17, 1866, Vol. 97, Chase Papers, LC; George W. Brooks to Chase, Mar. 20, 1866, Vol. 96, ibid.

32. Thomas W. Conway to Chase, Aug. 8, 1865, Vol. 95, Chase Papers, LC.

33. George R. Bentley, A History of the Freedmen's Bureau (Philadelphia, 1955), pp. 67, 106, 152-168. Bentley notes, p. 168, that bureau officers "knew that it had not gained for the Negro courtroom protection from the violence of white people."

34. Memorial of New York Chamber of Commerce, Dec. 6, 1866, File 39A-H14.10; memorial of Boston Board of Trade, Jan. 22, 1866, File 39A-H14.5; memorial of Philadelphia Board of Trade, Feb. 22, 1866, House Committee on the Judiciary, File 39A-H14.5, RG 233, NA. See also 13 Statutes at Large 123.

35. Of course, as Michael Perman notes, in 1866 ex-rebels had hopes of turning the federal courts to their own ends. Perman, Reunion Without Compromise: The South and Reconstruction, 18651868 (Cambridge, 1973), pp. 245, 248, 293–298.

36. Perhaps the best summary of Stevens's position is contained in a speech he gave in October 1863. See the Thaddeus Stevens Papers, Vol. 2, LC.

37. There is little hard data on actual case loads in the various courts before the creation of the Department of Justice For a rough idea of business in the northern federal courts as of January 1864, see Senate Ex. Doc. No. 1, 38 Cong., 2 sess., ser. No. 1209.

38. See Fairman, Reconstruction and Reunion, pt. 1, pp. 160–172.

39. Congressional Globe, 39 Cong., 1 sess., pp. 1714–1717. Congress did reduce the number of justices from ten to nine and continued to diminish the place of the South in the circuits.  See 14 Statutes at Large 209.

40. Fairman, Reconstruction and Reunion, pt. 1, p. 163.

41. Cleveland Plain Dealer, Jan. 1, 1866; N.Y. Times, Dec. 24, 1865. The quote is from the latter.

42. Thomas Drummond to Trumbull, Mar. 4,1866, Trumbull Papers, LC.

43. N.Y. Times, Dec. 24, 1865; see also ibid., Feb. 9, Mar. 29, 1866, and N.Y. World, Dec. 19, 1865.

44. N.Y. Times, Apr. 10, 1866.

45. Petition of New York City Bar against a reorganization of the federal judiciary, Apr. 4, 1866, House Committee on the Judiciary, File 39A-H14.5, RG 233, NA.

46. Congressional Globe, 40 Cong., 2 sess., pp. 625, 2068; ibid., 40 Cong., 3 sess., pp. 705, 1506.

47. Gordon Adams to Charles Sumner, Dec. 1, l868, Senate Committee on the Judiciary, File 40A-H10.4, RG 46, NA. See also petition of citizens of Vicksburg, Miss. (Dec. 1868), ibid.

48. Robert A. Hill to Trumbull, June 25, July 6, Aug. 7,1866, Trumbull Papers, LC. Hill to Chase, Nov. 14, 1866, Vol. 97; Feb. 20,1867, Vol. 98; Mar. 31,1868, Vol. 99, Chase Papers, LC.

49. Wager Swayne to Chase, June 3, 1867, Vol. 98, Chase Papers, LC.

50. John Erskine to Chase, Aug. 16,1866, Vol. 97, ibid.

51. Petition of citizens of Paducah, Ky., requesting a division of the district courts, Senate Committee on the Judiciary, File 41A-H10.2, RC 46, NA.

52. Petition of colored citizens of Hagerstown, Md., seeking their civil rights, ibid.; petition of citizens of Texas seeking division of district courts, Mar. 9,1869, House Committee on the Judiciary, File 41A-F13.4, RG 233, NA. Problems of enforcing the Civil Rights Act of 1866 and the 15th Amendment were not confined to the South, nor were the pleas for federal court intervention.  For the case of Circleville, Ohio, see W. H. P. Denny to John Sherman, Apr. 5,1870, Senate Committee on the Judiciary, File 41A-H10.2, RG 46, NA. Note also the accompanying petition of the black citizens of Circleville.

53. Congressional Globe, 40 Cong., 3 sess., pp. 414, 1366, 1487–1489, 1895; ibid., 41 Cong., 1 sess., pp. 29, 62, 151, 192–193, 207–219, 253, 336–345, 347, 409, 439, 574–576, 630, 646–650, 658, 682.

54.Ibid., 41 Cong., 1 sess., p. 208.

55. Ibid., pp. 1486, 1487, 213, 214.

56. Ibid., pp. 214, 1484–1487, 217–218, 337. Conkling proved to be a prophet. See also Frankfurter and Landis, Business of the Supreme Court, p. 76, and Kutier, Judicial Power, pp. 56–63.

57. Congressional Globe, 41 Cong., 1 sess., pp. 24, 62, 192, 207–215, 218, 336–345, 574, 682.

58. Everette Swinney, "Enforcing the Fifteenth Amendment," Journal of Southern History 28 (1962): 202–218.

59. Fish, Politics of Federal Court Administration, pp. 16-19.


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