Judicial compensation and the definition of judicial power in the early republic

Michigan Law Review

Volumn 107, Issue 1, 2008, Pages 1-52

  Pfander, James E ^a  

^a NORTHWESTERN UNIVERSITY SCHOOL OF LAW   (United States)

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EID: 54349109895     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (278)

1. John G. Roberts, Jr., 2006 Year-End Report on the Federal Judiciary (Jan. 1, 2007), available at http://www.supremecourtus.gov/publicinfo/year- end/2006year-endreport.pdf.
2. Notable contributions to the literature on judicial pay and incentives include Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everyone Else Does), 3 SUP. CT. ECON. REV. 1 (1993) (noting that the federal judiciary operates as a form of nonprofit enterprise, with judges unable to supplement their salaries with filing fees and other forms of compensation);
3. Adrian Vermeule, Essay, The Constitutional Law of Official Compensation, 102 COLUM. L. REV. 501 (2002);
4. and Albert Yoon, Love's Labor's Lost? Judicial Tenure Among Federal Court Judges: 1945-2000, 91 CAL. L. REV. 1029 (2003).
5. See also Stephen J. Choi et al., Are Judges Overpaid? A Skeptical Response to the Judicial Salary Debate, 1 J. LEGAL ANALYSIS (forthcoming 2009) (manuscript at 1-5, available at http://ssrn.com/abstract=1077295) (summarizing the debate about proposals to increase judicial salaries).
6. Critics questioned both the report's numerical comparisons and its rhetorical style. See, e.g., Paul F. Campos, Our Poor, Underpaid Federal Judges, CAPITOL HILL BLUE, June 22, 2007, http://www.capitolhillblue.com/cont/node/2759;
7. Matthew J. Franck, The Unpersuasive Chief, NAT. REV. ONLINE, Jan. 7, 2007, http://article.nationalreview.com/? q=YzRmZWVkNDRlMmFlNzA5ZGQzYzNkMmU4N2VlNWRhNGQ=.
8. For a summary of the debates over the framing of the Compensation Clause of Article III, see infra Part II.
9. See Keith S. Rosenn, The Constitutional Guaranty Against Diminution of Judicial Compensation, 24 UCLA L. REV. 308, 311-18 (1976). For an account of the Constitutional Convention's votes against Madison's proposal, see infra text accompanying notes 82-84.
10. See U.S. CONST. art. III, § 1 ("The Judges, both of the supreme and inferior Courts . . . shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.").
11. The history of judicial compensation reveals periods of wage inflation, when judicial salaries have declined in real terms, and of deflation, when judges gained in real terms. See Rosenn, supra note 4, at 343-50. Yet the Court understandably regards the nominal salary of judges as controlling for purposes of evaluating claims of unconstitutional salary diminution. See United States v. Will, 449 U.S. 200, 229 (1980) (holding that wage increases vest when they become due and payable, not when promised by Congress in legislation that would establish a future cost of living adjustment); cf. United States v. Hatter, 532 U.S. 557, 566-67 (2001) (upholding the application of a nondiscriminatory tax to all federal judges). With the one-way ratchet in place, Congress can adjust nominal salaries upward to account for inflation, but cannot respond to deflation except perhaps by increasing the judicial workload.
12. See DANIEL DUMAN, THE JUDICIAL BENCH IN ENGLAND, 1727-1875: THe RESHAPING OF A PROFESSIONAL ELITE 111-26 (1982) (collecting data on the salaries, fees, and perquisites of superior court judges in England during the eighteenth century).
13. On the compensation of officers through a combination of fees and salaries in seventeenth-century England, see G.E. AYLMER, THE KING'S SERVANTS: THE CIVIL SERVICE OF CHARLES I 1625-1642, at 160-252 (rev. ed. 1974),
14. and G.E. AYLMER, THE STATE'S SERVANTS: THE CIVIL SERVICE OF THE ENGLISH REPUBLIC 1649-1660, at 106-20 (1973) [hereinafter AYLMER, THE STATE'S SERVANTS].
15. On the collection of litigant fees in Massachusetts just prior to Shays' Rebellion, see Claire Priest, Note, Colonial Courts and Secured Credit: Early American Commercial Litigation and Shays' Rebellion, 108 YALE L.J. 2413, 2423-29 (1999).
16. On the incentives created by fee collection in England, see Daniel Klerman, Jurisdictional Competition and the Evolution of the Common Law: A Prospectus, 8 AUSTL. J. LEG. HIST. 1 (2004) [hereinafter Klerman 2004] (sketching a proposal for studying the influence of fees on judicial decisions),
17. and Daniel Klerman, Jurisdictional Competition and the Evolution of the Common Law, 74 U. CHI. L. REV. 1179 (2007) [hereinafter Klerman 2007].
18. See generally Phillip M. Payne, Costs in Common Law Actions in the Federal Courts, 21 VA. L. REV. 397 (1935) (describing the practice of fees and costs during the nineteenth century).
19. On the payment of fees to justices of the peace, see THOMAS K. URDAHL, THE FEE SYSTEM IN THE UNITED STATES 150-52 (Madison, Wis., Democrat Printing Co. 1898). On fees payable in the vice admirality courts, see infra note 42 and accompanying text.
20. See infra note 48 and accompanying text.
21. Others have viewed the jurisdictional terms of Article III as establishing a series of presumptions. See James S. Liebman & William F. Ryan, "Some Effectual Power": The Quantity and Quality of Decisionmaking that Article III and the Supremacy Clause Demand of the Federal Courts, 98 COLUM. L. REV. 696 (1998) (suggesting that Article III creates a series of jurisdictional presumptions that Congress may redefine).
22. This may explain why some observers have described paying judges for the quantity of their work as "constitutionally dubious." See Choi et al., supra note 1, at 4.
23. See infra notes 81-84 and accompanying text.
24. The tools of jurisdictional expansion in England were well known: King's Bench had developed the Bill of Middlesex to broaden its authority over trespass actions and the Court of Exchequer treated all debtors as debtors of the Crown to extend its authority to private litigation. For a summary of these jurisdiction-expanding fictions, see J.H. BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 41-47 (4th ed. 2002). On the relevance of English fictions to the debate over the ratification of the Constitution, see Letter from Centinel to the Freemen of Pennsylvania (Oct. 5, 1787), in 2 THE COMPLETE ANTI-FEDERALIST 140 (Herbert J. Storing ed., 1981) ("[P]erson[s] acquainted with the history of the courts in England, know[] by what ingenious sophisms they have, at different periods, extended the sphere of their jurisdiction over objects out of the line of their institution."). For an explicit connection between fictional jurisdictional expansion and judicial compensation, see Essay from Brutus to the People of the State of New York (Feb. 14, 1788), in 2 THE COMPLETE ANTI-FEDERALIST, supra, at 427-28 (arguing that federal judges would have an incentive to use fictions to broaden federal jurisdiction and secure greater emoluments).
25. See generally Stewart Jay, Origins of Federal Common Law: Part Two, 133 U. PA. L. REV. 1231, 1232 (1985) (confirming founding-era concerns with the use of fictions to broaden jurisdictions).
26. See Klerman 2004, supra note 8; Klerman 2007, supra note 8.
27. Cf. John V. Orth, Essay, Thinking About Law Historically: Why Bother?, 70 N.C. L. REV. 287, 293 (1991) (suggesting that judges paid by the case, rather than by salary, would be less likely to complain about the size of their docket); Posner, supra note 1, at 10-11 (noting that judges on salary should be expected to work less hard, on average, than lawyers of comparable age and experience).
28. See Act of Sept. 23, 1789, ch. 18, 1 Stat. 72 (setting forth stated annual salary figures for the Chief and Associate Justices of the Supreme Court and for each of the district judges and declaring these salaries to be payable on a quarterly basis at the treasury). For a summary of the salaries payable, see infra Appendix. In contrast to its provision for specified judicial salaries, Congress contemplated some variation in the compensation payable to members of Congress; members were to be paid on a per diem basis for attending sessions and a stated amount for each mile they traveled to attend the session. See Act of Sept. 22, 1789, ch. 17, 1 Stat. 70. Intriguingly, the congressional fee provision was described as "allowing Compensation," id., and thus avoided the reference to "certain Compensation" that appeared in the judicial compensation statute, Act of Sept. 23, 1789.
29. Federal judges recognized very early that, as courts of limited jurisdiction, the circuit courts must presume that they lack jurisdiction unless the record shows otherwise. See, e.g., Turner v. Bank of N.-Am., 4 U.S. (4 Dall.) 8, 11 (1799) ("This renders it necessary . . . to set forth upon the record of a Circuit Court, the facts or circumstances, which give jurisdiction, either expressly, or in such manner as to render them certain by legal intendment."). This presumption against jurisdiction had also cropped up in earlier opinions of the circuit justices. See Michael G. Collins, Jurisdictional Exceptionalism, 93 VA. L. REV. 1829 (2007) (collecting early jurisdictional cases). While judicial reliance on the pleadings to determine the existence of jurisdiction opened up the possibility that the record might support jurisdiction even where the underlying facts did not-thus potentially enabling the parties to expand jurisdiction to some extent-federal courts did not innovate but relied on the pleading system in the several states whose procedural law was made applicable in the lower federal courts. See id. at 1836-46.
30. 2 U.S. (2 Dall.) 409, 409-14 (1792).
31. See Letter from the Justices of the Supreme Court to George Washington (Aug. 8, 1793), in RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 78-79 (5th ed. 2003) [hereinafter HART & WECHSLER].
32. Useful studies of the judiciary in the early Republic include Charles Gardner Geyh & Emily Field Van Tassel, The Independence of the Judicial Branch in the New Republic, 74 CHI.-KENT L. REV. 31 (1998),
33. and Wythe Holt, "The Federal Courts Have Enemies in All Who Fear Their Influence on State Objects": The Failure to Abolish Supreme Court Circuit-Riding in the Judiciary Acts of 1792 and 1793, 36 BUFF. L. REV. 301 (1987).
34. Judiciary Act of 1789, ch. 20, 1 Stat. 73.
35. See infra notes 103-113 and accompanying text.
36. See infra notes 223-239 and accompanying text.
37. 5 U.S. (1 Cranch) 137 (1803).
38. 5 U.S. (1 Cranch) 299 (1803).
39. On the background of Marbury and Stuart, see RICHARD E. ELLIS, THE JEFFERSONIAN CRISIS: COURTS AND POLITICS IN THE YOUNG REPUBLIC 19-68 (1971),
40. and Dean Alfange, Jr., Marbury v. Madison and Original Understandings of Judicial Review: In Defense of Traditional Wisdom, 1993 SUP. CT. REV. 329. Ellis traces Marbury's connection to Stuart and shows that, as a practical matter, the Justices' decision to ride their circuits in the fall of 1802 represented a conclusive validation of the Jeffersonian repeal of the Judiciary Act of 1801. See Ellis, supra at 53-68. On the threat of impeachment if the Justices had refused their circuit obligations, see id. at 69-82. On the failed impeachment of Justice Samuel Chase, see id. at 96-107;
41. STEPHEN B. PRESSER, THE ORIGINAL MISUNDERSTANDING: THE ENGLISH, THE AMERICANS, AND THE DIALECTIC OF FEDERALIST JURISPRUDENCE 156-58 (1991).
42. On the evolving conception of government office, see Karen Orren, The Work of Government: Recovering the Discourse of Office in Marbury v. Madison, 8 STUD. AM. POL. DEV. 60 (1994).
43. Accounts of Chief Justice Jay's extrajudicial activities include WILLIAM R. CASTO, THE SUPREME COURT IN THE EARLY REPUBLIC: THE CHIEF JUSTICESHIPS OF JOHN JAY AND OLIVER ELLSWORTH 89-90, 174-83 (1995);
44. Natalie Wexler, In the Beginning: The First Three Chief Justices, 154 U. PA. L. REV. 1373, 1396-1406 (2006);
45. Russell Wheeler, Extrajudicial Activities of the Early Supreme Court, 1973 SUP. CT. REV. 123.
46. See also Robert J. Pushaw, Jr., Why the Supreme Court Never Gets Any "Dear John" Letters? Advisory Opinions in Historical Perspective, 87 GEO. L.J. 473, 489-94 (1998)
47. (reviewing STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES (1997)).
48. The 1701 Act of Settlement provides for tenure during good behavior for the twelve judges of the three superior courts of common law, King's Bench, Common Pleas, and Exchequer, and requires that their salaries be "ascertained and established." Act of Settlement, 1701, 12 & 13 Will. 3, c. 2, § 3 (Eng.). The required "establish[ment]" of salaries did not foreclose the continued receipt of litigant fees. Indeed, fees for English superior court judges were not abolished until 1799. On the use of fees and salaries to compensate English judges throughout the eighteenth century and the Bentham-inspired reform of judicial compensation in the 1830s, see DUMAN, supra note 7, at 125-26.
49. Reports of judicial salaries, fee income, and fees as a percentage of total compensation (salary and fees combined) in England, circa 1797, reveal the following for the chancellor (£5000; £5870; 54%), chief justice of King's Bench (£4000; £2399; 37%), chief justice of Common Pleas (£3500; £2025; 37%), and chief baron of Exchequer (£3500; £323; 13%). Klerman 2007, supra note 8, at 1188. Puisne or associate justices and barons received smaller salaries and fee incomes. Id.
50. The loser pays system developed in England, see WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 399-400 (Univ. of Chi. Press 1979) and was imported to the colonies of British North America. See Priest, supra note 8, at 2423-24, 2424 n.40. Conceptions of the costs of litigation in America evolved so as to exclude attorney's fees, giving rise to the "American" rule that each party pays his own attorney's fees.
51. See John Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery, LAW & CONTEMP. PROBS., Winter 1984, at 9. The "fees" that parties must pay to the officers of court for performing their official functions (e.g., issuing and serving the summons, empanelling a jury, entering a judgment) differ from the "costs" that serve to compensate the opposing party, but the bill of costs typically includes both elements and both are typically paid by the losing party.
52. See Arthur L. Goodhart, Costs, 38 YALE L.J. 849, 856-59 (1929).
53. See supra note 31.
54. For a general overview of fee payments to colonial governors, see URDAHL, supra note 9, at 97-99. See also Nicholas Parrillo, The Rise of Non-Profit Government in America: A Preliminary Overview (Nov. 15, 2006) (unpublished manuscript, on file with author).
55. See URDAHL, supra note 9, at 99-118 (describing fees for marriage and liquor licenses, church and school fees, and surveying and port fees).
56. See id. at 109 (noting that colonial legislatures fought excessive fees by requiring public officials to post their list of applicable fees in a public place).
57. For a general account of the Regulator Movement, see John Spencer Bassett, The Regulators of North Carolina, 1765-1771, 1895 AM. HIST. ASS'N ANN. REP. 141. The Regulators' petition for redress seeks relief from excessive fees in several separate provisions: 7. That the Chief Justice have no perquisites, but a Sallary only. 8. That Clerks be restricted in respect to fees, costs, and other things within the course of their office. 9. That Lawyers be effectually Barr'd from exacting and extorting fees. 10. That all doubts may be removed in respect to the payment of fees and costs on Indictments where the Defendant is not found guilty by the jury, and therefore acquitted. Petition of the Inhabitants of Anson County, N.C. (Regulators' Petition) (Oct. 9, 1769), in 8 THE COLONIAL RECORDS OF NORTH CAROLINA 77 (William L. Saunders ed., 1968). Shays' Rebellion also focused on the high cost of civil justice, especially for debtors in a loser-pays system. See Priest, supra note 8, at 2414, 2444-47.
58. See BERNARD BAILYN, THE NEW ENGLAND MERCHANTS IN THE SEVENTEENTH CENTURY 164 (1964) (noting the prevalence of "fees, bribes, and gifts" in the compensation of public officials).
59. On the history of bribery, emphasizing its origins as an offense involving the corruption of judges, see generally JOHN T. NOONAN, JR., BRIBES (1984). On Francis Bacon's impeachment for accepting bribes during his service as Lord Chancellor, see CATHERINE DRINKER BOWEN, FRANCIS BACON: THE TEMPER OF A MAN 177-204 (1963).
60. DRINKER BOWEN, supra note 39, at 200.
61. Holdsworth reports that the judges' positions in Stuart England, before tenure and salary protections, depended on "court influence, and even upon bribery and other forms of corruption." 5 W.S. HOLDSWORTH, A HISTORY OF ENGLISH LAW 352 (1922). For insight into the discourse of royal corruption in seventeenth-century England, see AYLMER, THE STATE'S SERVANTS, supra note 7, at 113-14.
62. Thus, the colonists identified as a grievance the fact that the vice-admiralty judges received fees and salaries payable only when they upheld the alleged violation of the acts of trade and navigation and ordered a condemnation of the vessel. These fee- and salary-based incentives led to questionable forfeiture decisions that inflamed colonial opinion and turned merchants against Great Britain. See David S. Lovejoy, Rights Imply Equality: The Case against Admiralty Jurisdiction in America, 1764-1776, 16 WM. & MARY Q. (3d ser.), 459, 476-82 (1959) (recounting the apparently biased decision of admiralty courts in South Carolina and Massachusetts in cases involving Henry Laurens and John Hancock). When Parliament extended the role of the admiralty courts in the Townshend Act, it took the colonists' concern to heart at least in part by fixing the salary of the vice-admiralty judges and foreclosing their receipt of any fees and gratuities. See 8 Geo. 3, c. 22 (1768) (Eng.).
63. Under standard fee-based compensation systems, the parties each paid fees throughout the course of the litigation at the time court personnel performed the service in question. At the conclusion of the litigation, the winner could recover back the amount of such fees as part of the costs taxable to the loser. The virtue of a loser-pays system (in contrast to the vice-admiralty courts' approach) lies in the incentive it creates to mete out evenhanded justice. The judge will not view the entitlement to a fee as dependent on the outcome of the case.
64. See Tumey v. Ohio, 273 U.S. 510 (1927) (invalidating conviction obtained in state court before a judge who received a fee of twelve dollars for a conviction and no fee at all for an acquittal); see also Connally v. Georgia, 429 U.S. 245 (1977) (relying on Tumey to invalidate warrant issued by a justice of the peace who was paid a fee only for approving, and not for rejecting, warrant applications).
65. See supra note 14; see also Joseph H. Smith, Administrative Control of the Courts of the American Plantations, 61 COLUM. L. REV. 1210, 1213 (1961) (describing the "bewildering complexity" of the English court system and attributing the complexity in part to the view that "jurisdiction was a source of profit and was dominated by notions of property").
66. Klerman 2007, supra note 8.
67. Fees may also help to explain the common law's view of preenforcement arbitration agreements, although the story has its complicating wrinkles. See id. at 43-44; see also Henry Horwitz & James Oldham, John Locke, Lord Mansfield, and Arbitration During the Eighteenth Century, 36 Hist. J. 137 (1993) (tracing the history of practice under the Arbitration Act of 1698 and showing that the statute both followed the lead of the courts in providing for the enforcement of arbitration agreements and received a relatively friendly reception from the King's Bench).
68. See MD. CONST. of 1776, art. XXX, reprinted in 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS AND OTHER ORGANIC LAWS OF THE UNITED STATES 819 (Ben Perley Poore ed., 2d ed. 1924) [hereinafter FEDERAL AND STATE CONSTITUTIONS].
69. Id.
70. See Pa. CONST. of 1776, § 23, reprinted in 2 FEDERAL AND STATE CONSTITUTIONS, supra note 48, at 1545 ("[J]udges of the supreme court of judicature shall have fixed salaries."); id. § 30, at 1546 ("No justice of the peace shall . . . be allowed to take any fees, nor any salary or allowance, except such as the future legislature may grant."). The two provisions, read in combination, apparently foreclose the payment of fees to superior court judges.
71. The South Carolina Constitution of 1790 also rules out fees for superior court judges. See S.C. CONST. of 1790, art. III, reprinted in 2 FEDERAL AND STATE CONSTITUTIONS, supra note 48, at 1632. It states: The judges of [the superior and inferior courts] shall hold their commissions during good behavior; and judges of the superior courts shall, at stated times, receive a compensation for their services, which shall neither be increased or diminished during their continuance in office; but they shall receive no fees or perquisites of office.
72. Mass. Const. of 1780, art. XXIX, reprinted in1 Federal and State Constitutions, supranote 48, at 960; see alsoN.H. Const. of 1784, art. XXXV, reprinted in2 Federal and State Constitutions, supranote 48, at 1283 (same as Massachusetts). Use of the term "salary" leaves open the possibility that fees might be paid as part of the compensation package.
73. See DEL. CONST. of 1776, art. XII, reprinted in 1 FEDERAL AND STATE CONSTITUTIONS, supra note 48, at 275 ("An adequate fixed but moderate salary shall be settled on [the judges of the superior courts] during their continuance in office."); GA. CONST. of 1789, art. III, § 5, reprinted in 1 FEDERAL AND STATE CONSTITUTIONS, supra note 48, at 386 ("The judges of the superior court and attorney-general shall have a competent salary established by law, which shall not be increased nor diminished during their continuance in office . . . ."). Of course, one might contend that a fixed fee schedule would satisfy the requirement that the judge's compensation neither increase nor decrease during continuance in office. The absolute amount of compensation might vary, but the rate of compensation would be fixed. For a discussion of this possibility, see infra notes 70-73 and accompanying text.
74. See generally HENRY J. BOURGUIGNON, THE FIRST FEDERAL COURT: THE FEDERAL APPELLATE PRIZE COURT OF THE AMERICAN REVOLUTION, 1775-1787 (1977) (describing the origins and operation of the court).
75. On the system of bounties that encouraged the taking of prizes by both naval officers and privateers, see Nicholas Parrillo, The De-Privatization of American Warfare: How the U.S. Government Used, Regulated, and Ultimately Abandoned Privateering in the Nineteenth Century, 19 YALE J.L. & HUMAN. 1 (2007).
76. Thus, the judges were initially told that they would have fixed salaries, but the amount was not specified due to concerns about the value of money, and they were given an advance on the sum eventually due. See BOURGUIGNON, supra note 54, at 115-17. Later, the salary was fixed at $30,000 per annum for the judges' "services and expences." 15 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 1350 (Worthington Chauncey Ford ed., Gov't Printing Office 1909).
77. 17 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 458 (Gaillard Hunt ed., Gov't Printing Office 1910).
78. See BOURGUIGNON, supra note 54, at 115-17. Eventually, as the workload of the court lightened after the conclusion of active hostilities, Congress substituted a fee-based system under which the judges were paid a per diem allowance and travel expenses for their attendance. See id. at 123-24. These fees and expenses were payable from the Treasury, not from the litigants.
79. Congress commissioned a study of state fees in connection with its assessment of the fees payable to federal judicial officers under provisions that incorporated state fees by reference. See C.A. RODNEY, FEES OF OFFICERS OF STATE COURTS, in 16 ANNALS OF CONG. app. at 1147-1246 (1807). The study reveals that state law authorized fee payments to superior court judges in Vermont, New York, New Jersey, and Delaware. See id. at 1160, 1166, 1178, 1179-80, 1183, 1190.
80. See Parillo, supra note 34, at 40-42 (describing fees paid to justices of the peace in New York).
81. See 19 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789, at 374-75 (Gaillard Hunt ed., Gov't Printing Office 1912) (1781) (proposing the payment of an additional $5,000 "or the real equivalent" to cover the "expences of such extensive duty in travelling, books and other matters"). Madison proposed to link this salary to a provision that barred the judges from receiving any "perquisites of office whatever." Id. at 375.
82. Under the New York statute that governed fees for judicial proceedings after the Revolution, the sheriff or marshal would receive "one shilling" for "[c]onveying a prisoner to gaol" within "one mile" and would receive six pence "for every mile more." See Act of Feb. 18, 1879, ch. 25, § 1, reprinted in 2 LAWS OF THE STATE OF NEW YORK 255 (Thomas Greenleaf ed., 1792). In admiralty, the fee for service by the marshal of the original process in the proceeding (capias, attachment, or summons) was twelve shillings plus an additional one shilling for "[t]ravelling each mile, going only." Id. at 256. Under the terms of the same statute, judges were to receive fees as follows: for affixing the seal to process, four shillings, and to exemplifications, ten shillings; for every sentence, thirty shillings; for taking an affidavit, one shilling, and a stipulation, four shillings; for swearing a witness, two shillings; and for taxing a bill of costs, ten shillings. Id. at 255; see also Priest, supra note 8, at 2423 (describing fee bills in colonial Massachusetts as including fees for clerks, judges, constables, and witnesses). Similar compensation systems were adopted for federal court officers. Under the Act of March 3, 1791, clerks of the district and circuit courts were paid five dollars a day to attend sessions of the courts and ten cents a mile to travel to them. Act of March 3, 1791, ch. 22, 1 Stat. 216. These fees were paid by the government, rather than by litigants. When Congress first established salaries for federal offices under the new Constitution, members of the House and Senate received from the Treasury both per diem fees for attendance at the session and travel expenses from their homes, calibrated by the mile. Id. By contrast, judicial salaries were fixed on an annual basis, and no provision was made for the payment of travel expenses. See infra text accompanying note 99.
83. See Barbara Aronstein Black, Massachusetts and the Judges: Judicial Independence in Perspective, 3 LAW & HIST. REV. 101 (1985);
84. Joseph H. Smith, An Independent Judiciary: The Colonial Background, 124 U. PA. L. REV. 1104 (1976).
85. For example, Edmund Randolph's report to Congress, suggesting changes to the Judiciary Act of 1789, refused to link the compensation of clerks and marshals to fines and forfeitures because that would rest the remuneration "of public servants upon the delinquencies of its citizens." REPORT OF THE ATTORNEY-GENERAL TO THE HOUSE OF REPRESENTATIVES (1790) [hereinafter RANDOLPH'S REPORT], in 4 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800, at 127, 165 (Maeva Marcus ed., 1992) [hereinafter 4 DHSC].
86. U.S. Const., art. III, § 1.
87. See, e.g., Rosenn, supra note 4; Geyh & Van Tassel, supra note 21.
88. U.S. Const., art. III, § 1.
89. An intriguing linguistic similarity connects the rhythm of the Compensation Clause to the language of the compensation provisions that appeared in the British Royal letters patent. See 2 FREDERICK CLIFFORD, A HISTORY OF PRIVATE BILL LEGISLATION 717 (London, Butterworths 1887) ("In the Royal letters patent [for the office of clerk of the Parliament] the salary was ten pounds of lawful money of Great Britain, payable half-yearly at the Exchequer, 'together with all other rewards, dues, rights, profits, commodities, advantages and endowments whatsoever to the said office.' "). The Compensation Clause tracks the patent in referring to payment at a specified time, but fails to provide for any other "rewards [and] advantages." Id.; see also U.S. Const., art. III, § 1.
90. See supra note 62.
91. It was not uncommon among early American systems of compensation to use the proceeds of forfeitures to provide a fund from which salaries and fees were paid. For example, in creating the Court of Appeals for Prize Cases, the Continental Congress provided that a share of any amounts forfeited to the Continental government was to be available to defray the cost of the court, including judicial salaries. See BOURGUIGNON, supra note 54, at 115. The "stated Times" provision of Article III may have suggested that salaries were to be paid from general revenues, rather than from the funds secured through forfeitures; salaries dependent on forfeitures might arrive sporadically and might, more importantly, give the judge a stake in the disposition.
92. See Act of Settlement, 1701, 12 & 13 Will. 3, c. 2, § 3 (Eng.).
93. See MD. CONST. of 1776, supra note 48; Pa. CONST. of 1776, supra note 50.
94. To be sure, one might contend that any reduction in fee-based compensation that resulted from a diminishing caseload would result from external market forces rather than a legislative attack on the federal judiciary and should not implicate Article III's concern with preserving judicial independence. But a Congress determined to cut judicial pay could do so by enacting legislation that preserved fee rates at the same time it steered cases to an alternative forum. Judges might contend that restrictions on their jurisdiction operated as de facto salary reductions in violation of Article III.
95. Professor Klerman reports that English judges earned substantial fee income throughout the eighteenth century, but that it was curtailed by statute beginning in 1799. See Klerman 2007, supra note 8, at 1180, 1187-89.
96. 12 & 13 Will. 3, c. 2, § 3 (Eng.).
97. I am indebted to Nicholas Parrillo for this observation.
98. See URDAHL, supra note 9, at 98 n.4 (" 'For the sake of acquiring fees as governor or proprietor he . . . disputed the best of titles, and vexed the fairest traders.' " (quoting 2 HUGH WILLIAMSON, THE HISTORY OF NORTH CAROLINA 14 (Phila., Thomas Dobson 1812))); id. at 99-100 n.3 (noting that Governor Andros of New York received fifty pounds to confirm land patents issued under an earlier charter).
99. Of course, one should note that fees might come either from litigants or from government sources. To the extent fees were paid by litigants and varied with the impact of external market forces on federal dockets, one might argue that official compensation had not suffered a diminution within the meaning of Article III. By reason of its impersonal nature, the fluctuation might be seen as leaving the rate of compensation unchanged and as failing to implicate a diminution rule that was viewed as targeting politically motivated salary reductions. Thanks to Nick Parrillo for this observation.
100. Resolutions proposed by Mr. Randolph in Convention (May 29, 1787), in 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 21-22 (Max Farrand ed., rev. ed. 1966) [hereinafter RECORDS OF THE FEDERAL CONVENTION].
101. See 1 RECORDS OF THE FEDERAL CONVENTION, supra note 79, at 238. Of course, Congress might establish a fee-based payment system that was payable out of the fisc. Under the new Constitution, both members of Congress and the United States attorneys for the several federal districts were to be paid fees for their services from the Treasury. See infra note 105.
102. The resolution adopted on June 13 did not contemplate fees; it called for the judges "to receive punctually, at stated times, a fixed compensation for their services," 1 RECORDS OF THE FEDERAL CONVENTION, supra note 79, at 226, and thus seemingly ruled out fee payments. Later, the framers dropped the term "fixed" when it became clear that Congress could authorize salary increases but not reductions. See Records of the Committee of Detail, in 2 RECORDS OF THE FEDERAL CONVENTION, supra note 79, at 132 (showing that the resolution as submitted to the Committee of Detail somewhat illogically includes a requirement of "fixed" compensation but also allows increases in compensation); id. at 186 (omitting in the Committee of Detail draft any reference to "fixed" compensation).
103. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 79, at 44-45.
104. Daniel D. Blinka, Jefferson and Juries: The Problem of Law, Reason and Politics in the New Republic, 47 AM. J. LEG. HIST. 35, 76-78 (2005) (describing Virginia's failed experiment with fixing the salary of public officials by reference to the price of tobacco).
105. 2 RECORDS OF THE FEDERAL CONVENTION, supra note 79, at 45.
106. See id. at 186.
107. Id. at 429-30.
108. Id. at 429 (remarks of Charles Pinckney).
109. Oliver Ellsworth, the leading drafter of the Judiciary Act of 1789, apparently assumed that Article III required fixed salaries. In commenting on a suggestion that Congress rely on state judiciaries, Ellsworth explained that the state judges would become federal judges, and would continue as such "during good behavior & on fixed saleries [sic]." Letter from Oliver Ellsworth to Richard Law (Aug. 4, 1789), in 4 DHSC, supra note 64, at 495.
110. Letter from Alexander Hamilton to Jonathan Dayton (Oct.-Nov. 1799), in 4 DHSC, supra note 64, at 614.
111. Id.
112. Id.
113. See Judiciary Act of 1789, ch. 20, 1 Stat. 73. For background on the Judiciary Act of 1789, see HART & WECHSLER, supra note 20, at 28-33.
114. See Compensation Act of 1789, ch. 18, 1 Stat. 72.
115. See Process Act of 1789, ch. 21, 1 Stat. 93.
116. The federal judiciary included three tiers of courts: thirteen federal district courts, one for each of the eleven ratifying states (and two more for the districts that were to become Maine and Kentucky) with jurisdiction over admiralty and maritime causes, revenue matters, and minor criminal offenses; three circuit courts with original jurisdiction in diversity matters, alienage matters, and more serious federal crimes, and appellate jurisdiction over many matters in the district courts; and one Supreme Court, staffed with one Chief and five Associate Justices, with a primarily appellate docket. For useful summaries of the debates in the First Congress over the structure of the judiciary, see JULIUS GOEBEL, JR., 1 HISTORY OF THE SUPREME COURT OF THE UNITED STATES 458-508 (1971);
117. Michael G. Collins, The Federal Courts, the First Congress, and the Non-Settlement of 1789, 91 VA. L. REV 1515 (2005);
118. and Wythe Holt, "To Establish Justice": Politics, The Judiciary Act of 1789, and the Invention of the Federal Courts, 1989 DUKE L.J. 1421.
119. See DWIGHT F. HENDERSON, COURTS FOR A NEW NATION 41-44 (1971).
120. Judiciary Act of 1789 § 7.
121. Compensation Act of 1789 § 1 (fixing salaries for federal judges).
122. Id. James Madison initially suggested that district judges receive a uniform salary of $1,000, but that figure was rejected in favor of salaries that varied by district. See PETER GRAHAM FISH, FEDERAL JUSTICE IN THE MID- ATLANTIC SOUTH: UNITED STATES COURTS FROM MARYLAND TO THE CAROLINAS, 1789-1835, at 23 (2002).
123. 1 ANNALS OF CONG. 936 (Joseph Gales ed., 1790) (remarks of Rep. James Jackson).
124. Id. at 937 (remarks of Rep. James Madison).
125. See id. at 934 (remarks of Rep. Benjamin Goodhue); id. at 936 (remarks of Rep. Elbridge Gerry); see also Letter from Benjamin Goodhue to Samuel Phillips, Jr. (Sept. 13, 1789), in 17 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS OF THE UNITED STATES OF AMERICA 1529-30 (Charlotte Bangs Bickford et al. eds., 2004) [hereinafter 17 DHFFC] (noting that Virginia judges were paid $1,000, and arguing that Supreme Court Justices should receive no more than double that sum); Letter from James Sullivan to Elbridge Gerry (Oct. 11, 1789), in 17 DHFFC, supra, at 1682 ("[N]ot ten men in the United States . . . have income from [their] Estates equal to what is given the Judges.").
126. See Act of Sept. 22, 1789, ch. 17, 1 Stat. 70 (specifying six dollars per diem and travel reimbursement at a rate of six dollars per twenty miles as the compensation for members of the House and Senate).
127. See Letter from James Iredell to Hannah Iredell (Apr. 11, 1791), in 2 THE DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789-1800, at 157-58 (Maeva Marcus ed., 1992) [hereinafter 2 DHSC] (proposing to address shortage of personal funds by drawing on his salary, rather than by seeking a travel reimbursement from the Treasury); Letter from David Sewall to George Thatcher (Nov. 25, 1792), in 2 DHSC, supra, at 334 (recognizing that if Congress were to end circuit riding for the Justices and impose circuit duties on the district judges, the "expences of the former, will be greatly diminishd [sic] and that of the latter increased").
128. See email from Charles Hobson to author (on file with author) (Dec. 4, 2006, 10:46 EST).
129. See 25 ANNALS OF CONG. 150 (1812). In arguing for a judicial salary increase, one representative explained that the "expenses of travelling the circuit of the districts consumed near the whole emolument of some of the judges." Id.
130. See infra Appendix.
131. See Rosenn, supra note 4, at 343 tbl. 1 n.; see also infra Appendix.
132. See Evarts Act, ch. 517, 26 Stat. 826 (1891) (creating stand-alone circuit courts and staffing them with circuit judges). See generally FELIX FRANKFURTER & JAMES M. LANDIS, THE BUSINESS OF THE SUPREME COURT 107 (1928) (discussing Evarts Act).
133. See infra note 117 and accompanying text.
134. See infra text accompanying note 123.
135. See FISH, supra note 99, at 23 ("The House . . . scaled down the salary schedule previously approved by the Senate [which] established salaries roughly proportional to projected caseloads."); HENDERSON, supra note 96, at 51 ("The salaries of the district judges . . . depend[ed] in part upon the territorial extent and population of the state and in part upon the estimated volume of business . . . ."). For the claim that salary variation in the early republic reflected differences in the cost of living, see Elliot A. Spoon, Comment, Compensation of the Federal Judiciary: A Reexamination, 8 U. MICH. J.L. REFORM 594, 612 (1975).
136. For the claim that salary variation in the early republic did not reflect differences in cost of living, but instead reflected differences in the lengths of coastlines (and so number of admiralty cases) in each district, see RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 34 (1996).
137. The Appendix sets forth the salary of each district judge, the relative size and population of the state or district in which the judge served, and the approximate mileage required to attend sittings of the district and circuit courts in that district. See infra Appendix.
138. Perhaps the clearest counterexample is that of South Carolina. Neither the state's population, nor its size, nor the travel obligations imposed on its district judge appear to justify the salary specified. Anticipated docket pressure, both from admiralty proceedings and Southern debt claims, may explain the South Carolina salary and help support Professor Fish's expected caseload account. See Fish, supra note 99.
139. See HENDERSON, supra note 96, at 42; Letter from James Iredell to Thomas Johnson (Mar. 15, 1792), in 2 DHSC, supra note 104, at 246, 247; see also Holt, supra note 21, at 309-10 (quoting Iredell complaining about nearly being drowned on one of his circuit rides).
140. See Letter from James Iredell to Thomas Johnson, supra note 115. Iredell speculated that Justice Cushing's reluctance to accept the proposal reflected the fact that Cushing found "travelling in the midst of his NE. Friends much cheaper than any of the rest of us do." Id. at 247. While Justices Wilson, Blair, Johnson, and Jay agreed with the proposal, Justice Cushing agreed only after pointing out that eliminating circuit duty would require the appointment of new judges and new salaries, "which could not be compensated out of the 500 [dollars]." Letter from William Cushing to James Iredell (Mar. 26, 1792), in 2 DHSC, supra note 104, at 250; see also Holt, supra note 21, at 329. Scholars have found no evidence that Iredell's proposal was presented to Congress. Holt, supra note 21, at 329.
141. See Letter from James Iredell to James Wilson (Nov. 24, 1794) in 2 DHSC, supra note 104, at 497, 498 & n.4. The agreement may have dated from the February 1794 term of the Supreme Court. See infra note 156. In any case, the practice of paying one's fellow Justices to cover one's circuits was apparently well established by the time of Oliver Ellsworth's tenure as Chief Justice from 1795-1802. Ellsworth accepted a position as envoy to France during his tenure as Chief Justice, just as Chief Justice Jay had done to England during his own tenure. In later seeking additional compensation after the completion of his service, Ellsworth noted that he "made an arrangement with one of my Brethren to perform on my acct [sic] such Circuit duty as should fall to my lot during my absence." Letter from Oliver Ellsworth, Chief Justice, U.S. Supreme Court, to Mr. Gideon Granger, U.S. Postmaster General (Mar. 17, 1802) (on file with General Manuscript Collection, Princeton University Library). In context, it seems clear that Ellsworth was seeking reimbursement for his payment to a colleague to perform Ellsworth's circuit duty. Part IV will examine in greater detail the political interactions between the Court and Congress over the issue of circuit riding.
142. For the law prohibiting private law practice, see Act of Dec. 18, 1812, ch. 5, 2 Stat. 788 (declaring it a "high misdemeanor" and threatening with impeachment any judge who purported "to exercise the profession or employment of counsel or attorney, or to be engaged in the practice of the law").
143. See 25 ANNALS OF CONG. 200 (1812) (comment of Rep. Richard Stanford).
144. Of course, the public inns and taverns did not necessarily offer five-star accommodations. Justice Iredell complained of the surroundings at a "very rascally house," where several "worthless young Fellows" stayed up all night, "drinking gaming & cursing & swearing." Letter from James Iredell to Hannah Iredell (Sept. 19, 1791), in 2 DHSC, supra note 104, at 210. In part to avoid such rascally surroundings, the Justices introduced their colleagues on the bench to friends on the circuit with whom they could lodge. See, e.g., Letter from James Iredell to Richard Bennehan (Aug, 15, 1794), in 2 DHSC, supra note 104, at 480 (introducing Justice James Wilson to a North Carolina planter).
145. Following the English tradition, the movement of the Justices on circuit often provided the occasion for local parades, welcomes, and send-offs. For example, the procession that accompanied the opening of the circuit in Boston included "Eight constables, with staves," Deputy-Marshals Bradford and Thomas, Marshal Jackson, Chief Judge Jay, Judges Cushing and Lowell, the United States Attorney, the Attorney-General of Massachusetts, and various other officials, attorneys, religious leaders, and prominent citizens. Henderson, supra note 96, at 35. Justices were obviously expected to display a dignity appropriate to their position; keeping up appearances would doubtless entail some personal expense.
146. Compensation Act of 1789, ch. 18, 1 Stat. 72.
147. Process Act of 1789, ch. 21, 1 Stat. 93. § 2.
148. Id.
149. Id.
150. On the late addition of the provision excluding judicial fees, see An Act to regulate Processes in the Courts of the United States, Sept. 29, 1789, in 4 DHSC, supra note 64, at 114, 120 n.2 (revealing that the language was added during the House's consideration of the bill).
151. Process Act of 1789 § 2 ("[T]he rates of fees [in equity and admiralty proceedings] were [those] last allowed by the states respectively in the court exercising supreme jurisdiction in such causes.").
152. See Petition from the Merchants of Charleston, S.C. to U.S. Senate (Oct. 8, 1792) (on file with author and National Archives).
153. Id.
154. Id.
155. See id. Unfortunately, the archivist reports that the attached bill of costs does not appear with the petition in the Archives. Email from Jessica Kratz, Archivist, Nat'l Archives and Records Admin., to author (Apr. 29, 2008, 11:16 EDT) (on file with author).
156. Petition from the Merchants of Charleston, S.C. to U.S. Senate, supra note 128.
157. See Act of Mar. 1, 1793, ch. 20, 1 Stat. 332 (prohibiting the taxation of any fees in admiralty proceedings, except as expressly allowed in the Act itself, and making no provision for the payment of fees to admiralty judges, but allowing fees to clerks and marshals).
158. See Letter from Thomas Bee to U.S. Senators from South Carolina (Feb. 3, 1800) (on file with author); infra Appendix (providing salary information). Thanks to Bill Casto for providing me with a copy of Bee's letter.
159. Id.
160. Id.
161. Id. For more on these ministerial functions, see infra note 199.
162. Letter from Thomas Bee to U.S. Senators from South Carolina, supra note 134.
163. I chose the archives of the New York District Court as the subject of further research because its state law provided for the payment of fees in admiralty both to officers of the court (clerks and marshals) and to the judges themselves. See supra note 62.
164. The first two decrees award fees from the proceeds of an auction of items forfeited due to a violation of the customs laws. In United States v. Four Cheeses, the auction returned a sum of $43.73 from which Duane ordered costs as follows: U.S. Attorney for the District of New York, $13.25; marshal for the District of New York, $4.30; clerk of the district court, $4.86; the cryer of the court, $0.49; and the printer's bill for advertising the auction, $9.37. (Total costs came to $32.27, or roughly three-fourths of the sum forfeited.) After payment of costs, Duane ordered payment of the "residue" as follows: one-half to the United States treasury and one-half in equal shares to three port officials (the collector, the naval officer, and the surveyor). United States v. Four Cheeses (D.N.Y. Aug. 1790) (on file with National Archives, Records of the Federal District Court of New York, Document No. M886, Minutes at p. 28). In United States v. Eleven Yards of Flannel, the auction returned the sum $364.70 from which Duane ordered costs as follows: U.S. Attorney for the District of New York, $15.49; marshal for the District of New York, $13.00; clerk of the district court, $5.93; cryer of the court, $0.49; and the printer's bill, $9.37. United States v. Eleven Yards of Flannel (D.N.Y. Nov. 22, 1790) (National Archives, Records of the Federal District Court of New York, Document No. M886, Minutes at p. 51). The second two decrees were entered in connection with a remission of fines and penalties by the secretary of the Treasury, Alexander Hamilton, following the submission of a petition and summary proceedings before the district court in keeping with the process described below. In Petition of Cornelius Schermerhorn, Duane ordered the successful petitioner, as a condition of securing the remission of penalties, to pay costs as follows: U.S. Attorney, $4.67; clerk of the court, $8.00; cryer of the court, $0.50. Petition of Cornelius Schermerhorn (D.N.Y. Sept. 1792) (National Archives, Records of the Federal District Court of New York, Document No. M886, Minutes at p. 127). In Petition of Marshal Jenkins, the remission was conditioned on the payment of the following costs: U.S. attorney, $4.67; clerk of the court, $8.31; and cryer, $0.50. Petition of Marshal Jenkins (D.N.Y. Sept. 1792) (National Archives, Records of the Federal District Court of New York, Document No. M886, Minutes at p. 130. (The decree does not explain why the cryer received a one-cent raise.) See id.
165. Newspaper accounts were quite matter of fact, simply recording the receipt of the petition of the Charleston merchants and the action of Congress in enacting a schedule of approved fees in admiralty. See E. HERALD (Portland, Me.), Dec. 3, 1792, at 2; DUNLAP'S AM. DAILY ADVERTISER, (Phila., Pa.), Nov. 9, 1792, Supp., at 2 (recording receipt of the petition); id., Dec. 29, 1792, at 5 (reporting that debate occurred in Committee of the Whole).
166. Of course, other court officers relied extensively on fees as their primary source of compensation. The clerk of the Supreme Court was allowed "double the fees" of the clerk of the supreme court of the state in which the Supreme Court sat. See Act of May 8, 1792, ch. 36, § 3, 1 Stat. 275, 277.
167. Circuit riding finally ended with the 1891 adoption of the Evarts Act, which transformed the circuit courts into appellate tribunals and created a corps of circuit judges to staff the courts. At the same time, Congress began to pay the (now stationary) district judges the same salary nationwide. See supra note 109 and accompanying text.
168. See STEWART JAY, MOST HUMBLE SERVANTS: THE ADVISORY ROLE OF EARLY JUDGES 144 (1997);
169. William R. Casto, Foreign Affairs Crises and the Constitution's Case or Controversy Limitation: Notes from the Founding Era, 46 AM. J. LEG. HIST. 237, 238 (2004).
170. See Letter from James Iredell to John Jay, William Cushing, and James Wilson (Feb. 11, 1791), in 2 DHSC, supra note 104, at 131, 132 (explaining the hardships of the Southern Circuit and requesting that the Justices consider "some more equitable rule in the allotment of Circuits so unequal in point of duty").
171. Thus, Chief Justice Jay explained that continuity of service might be important in case difficult issues of law were taken under advisement by the two Justices for future decision. See Letter from John Jay to James Iredell (Feb. 12, 1791), in 2 DHSC, supra note 104, at 135. He also believed that resident Justices would better know the attorneys seeking admission to the bar and the content of local law. Id.
172. Indeed, at one point Iredell took an advance on his salary to provide his wife with needed liquidity. See Letter from James Iredell to Hannah Iredell, supra note 104, at 157-58.
173. See Letter from James Iredell to John Jay, William Cushing, and James Wilson, supra note 145.
174. In draft legislation prepared at the request of Congress, Attorney General Edmund Randolph recommended a transfer of circuit riding duties from Supreme Court Justices to district judges. See RANDOLPH'S REPORT, supra note 64. Randolph may have consulted with the Justices in preparing this report. Holt, supra note 21, at 316 & n.57. In any case, Jay supported the proposed legislation. Cf. Letter from John Jay to Rufus King (Dec. 19, 1793), in 2 DHSC, supra note 104, at 434; Letter from John Jay to Rufus King (Dec. 22, 1793), in 2 DHSC, supra note 104, at 434.
175. Wexler, supra note 29, at 1378 & n.19.
176. See Letter from Charles Johnson to James Iredell (Feb. 1791), in 2 DHSC, supra note 104, at 138, 138-39 ("[Iredell's fellow Justices] prefer[] their own ease and convenience to every generous feeling, principle of justice, or regard to public duty . . . . [T]heir conduct appears . . . little, unjust, ungenerous, and unpatriotic.").
177. Iredell explained that his circuit through the South, at a distance of 1800 miles, was "at least 1000 miles more than the utmost [route] of the others." Letter from James Iredell to Thomas Johnson, supra note 115. The expense and burden quickly became well known. When Thomas Johnson was considering a position on the Court, he explicitly bargained with President Washington for relief from the Southern Circuit and resigned his commission after a short time, citing the burdens of circuit duty. For an account, see 2 DHSC, supra note 104, at 122-23; Letter from Thomas Johnson to George Washington (Jan. 16, 1793), in 2 DHSC, supra note 104, at 344 (citing the burdens of circuit riding in his letter of resignation).
178. Indeed, Chief Justice Jay allowed his name to be placed in nomination for the governorship of New York while he remained on the bench and he eventually resigned his commission to accept that post in 1795. See Stahr, supra note 214, at 339-40. John Rutledge left the Court in 1791 to accept a position as the Chief Judge of South Carolina. See 2 DHSC, supra note 104, at 17.
179. For an account, see Holt, supra note 21, at 330.
180. Act of Apr. 13, 1792, ch. 21, § 3, 1 Stat. 252, 253 ("[N]o judge, unless by his own consent, shall have assigned to him any circuit which he hath already attended, until the same hath been afterwards attended by every other of the said judges.").
181. See Letter from James Iredell to James Wilson, supra note 117, at 497-98 & n.4. Iredell's letter notes the existence of the agreement, dating it from February 1794, and indicates that he immediately agreed to ride the Southern Circuit again. Id. Such an agreement appears to have been anticipated in the rotation bill, which allowed successive service with the "consent" of the Justice in question, and thus seems to contemplate bargaining among the Justices over how to compensate the Southern Circuit rider and so equalize the burdens of office. Other side bargains over circuit duty may have become common. For example, Ellsworth reports paying a colleague to ride his circuit while he was away as the ambassador to France. See supra note 113 and accompanying text. Conceivably, Jay did the same during his tenure as envoy to Great Britain, although I have found no record of it.
182. See HENDERSON, supra note 96, at 43. The chart on page 43 displays the attendance of the various Justices on circuit from 1790 to 1800. Id. Wilson eventually rode the Southern Circuit for the first time in the fall of 1794. Id. Jay, though consistently and conspicuously present on the Eastern Circuit (in which the New York District was located) between 1790 and 1792, rode the Southern Circuit. Id. Perhaps Iredell's willingness to accept side payments suggests that his objections to the system of permanent circuit justices were as much personal as institutional.
183. See Letter from John Blair to John Jay (Aug. 5, 1790), in 2 DHSC, supra note 104, at 83, 83-84 (describing a meeting during the August term at which the Justices agreed to a "joint representation" setting forth their objections to the "judiciary system").
184. See Draft Letter from the Justices of the Supreme Court to George Washington (Sept. 13, 1790), in 2 DHSC, supra note 104, at 89, 89-91. Although Chief Justice Jay circulated the draft to his colleagues, scholars have not yet established that the letter was actually sent to the president. See id. at 92 n.1.
185. Id. at 89.
186. 5 U.S. (1 Cranch) 137 (1803). Although it has been widely criticized in the literature, Marshall's conclusion may have been relatively well grounded in the structure and history of Article III. For an assessment, see James E. Pfander, Marbury, Original Jurisdiction, and the Supreme Court's Supervisory Power, 101 Colum. L. Rev. 1515 (2001).
187. Draft Letter from the Justices of the Supreme Court to George Washington, supra note 159, at 90.
188. Id.
189. Id. at 91.
190. Id. ("[T]he Appointment of [judges of the circuit courts], by an Act of the Legislature, is a Departure from the Constitution, and an Exercise of Powers, which, constitutionally and exclusively belong to the President and Senate.").
191. Justices of the Supreme Court would sit in review of the decisions of the circuit courts, decisions in which they had sometimes participated as the judges of a lower court. Even though the Justices invariably recused themselves in matters that involved their own dispositions below, a judicial structure that required one court to review the previous work of its own Justices created the appearance of bias or interest and could undermine confidence in the institution.
192. See supra note 116 and accompanying text.
193. Congress could have presumably created a single circuit judge for each circuit, joining that judge with district court judges to form a two-judge panel. But the salary required would have presumably exceeded $1,000 per judge, the salary specified for the lowest-paid district court judges. Moreover, the shift away from using Supreme Court Justices as circuit riders may have persuaded Congress to broaden the Court's appellate review of the circuit courts. Congress might have economized further on the cost of federal justice by paring down the size of the Supreme Court as Justices resigned or died. That approach to reducing the size of the Court had been on the table in 1796, see Henderson, supra note 96, at 44, and it resurfaced controversially in the Judiciary Act of 1801. See Judiciary Act of 1801, ch. 4, 2 Stat. 89 (reflecting the decision of Congress to reduce the size of the Court from six to five when the next vacancy occurred, which would deny President Jefferson his first appointment). Alternatively, Congress could have filled the place of the circuit justices by requiring the district judges to ride circuit. Edmund Randolph had made such a suggestion in his report to Congress in December 1790. See RANDOLPH'S REPORT, supra note 64, at 134-36.
194. Letter from the Justices of the Supreme Court to the Congress of the United States (Aug. 9, 1792), in 2 DHSC, supra note 104, at 289, 289-90. The Justices enclosed this submission in a letter to Washington, asking Washington to lay it before the Congress. Letter from the Justices of the Supreme Court to George Washington (Aug. 9, 1792), in 2 DHSC, supra note 104, at 288, 288-89.
195. Letter from the Justices of the Supreme Court to the Congress of the United States, supra note 169, at 290.
196. Id.
197. See Act of Mar. 2, 1793, ch. 22, § 1, 1 Stat. 333, 333-34.
198. Cf. GOEBEL, supra note 95, at 567 (describing the reform as "but a half loaf and a meagre one at that").
199. See HENDERSON, supra note 96, at 43.
200. See Letter from the Justices of the Supreme Court to the Congress of the United States (Feb. 18, 1794), in 2 DHSC, supra note 104, at 443, 443-44 (noting that the rotation of Justices could result in disagreements over matters from term to term of the circuit courts and that such matters might never reach the Supreme Court under the then-applicable $2,000 limit on appeals from the circuits).
201. Id. The Justices' reference to personal considerations might be seen as reflecting a concern with "personal comfort," Geyh & Van Tassel, supra note 21, at 66-67, but it may well have had more to do with the fact that riding the circuits entailed personal financial issues for the Justices.
202. The legislation took effect on a piecemeal basis. See Act of May 12, 1796, ch. 25, 1 Stat. 463; Act of Mar. 2, 1793, ch. 23, 1 Stat. 335, 335-36; Act of Aug. 13, 1792, ch. 21, § 2, 1 Stat. 252, 252-53.
203. 2 U.S. (2 Dall.) 409 (1792).
204. Id. For good accounts of this oft-told tale, see Susan Low Bloch, The Early Role of the Attorney General in Our Constitutional Scheme: In the Beginning There Was Pragmatism, 1989 DUKE L.J. 561;
205. Mark Tushnet, Dual Office Holding and the Constitution: A View from Hayburn's Case, in ORIGINS OF THE FEDERAL JUDICIARY: ESSAYS ON THE JUDICIARY ACT OF 1789, at 196 (Maeva Marcus ed., 1992).
206. JAMES WILSON ET AL., OPINION OF THE CIRCUIT JUDGES FOR THE PENNSYLVANIA DISTRICT, RELATIVE TO CERTAIN DUTIES ASSIGNED TO THEM BY ACT OF CONGRESS (Apr. 21, 1792) in 1 AMERICAN STATE PAPERS: MISCELLANEOUS 50, 50-51 (Walter Lowrie & Walter S. Franklin eds., 1834).
207. Neal Kumar Katyal, Judges As Advicegivers, 50 STAN. L. REV. 1709, 1731-33 (1998).
208. See, e.g., Max Farrand, The First Hayburn Case, 1792, 13 AM. HIST. REV. 281, 285 (1908).
209. For an account of impeachment threats, which came from the Federalists, see 1 CHARLES WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 73-75 (rev. ed. 1937).
210. Congress directed the attorney general to secure an adjudication of the legality of pension decisions of circuit justices "styling themselves [as] commissioners." Act of Feb. 28, 1793, § 3, 1 Stat. 324, 325. The attorney general did so in the case of United States v. Yale Todd in 1794. United States v. Yale Todd (1794), reproduced in Wilfred J. Ritz, United States v. Yale Todd (U.S. 1794), 15 WASH. & LEE L. REV. 220, 227-31 (1958). The Court ruled for the government, concluding that the pension decisions did not create legal obligations. Yale Todd was later noted by Justice Taney in an appendix to his opinion for the Court in United States v. Ferreira, 54 U.S. (13 How.) 40, 52-53 (1852) (Taney, C.J.) (briefly discussing the Yale Todd case). See generally Ritz, supra (providing background and reproducing the record of the Yale Todd case).
211. The statute quite clearly assigned the task of passing on the claims to the "circuit courts" and not to the judges of those courts. See Act of Mar. 23, 1792, ch. 10, § 2, 1 Stat. 243, 244 ("[Qualifying applicants] shall . . . be allowed such farther sum . . . as the circuit court of the district, in which they respectively reside, may think just."). Conceivably, the Yale Todd Court may have concluded that the language was too clear to permit the judges to act as commissioners. Alternatively, the Court may have found that the Constitution forbade such extrajudicial assignments.
212. See, e.g., James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 699-704 (2004) (describing and assessing the finality account of Hayburn's Case).
213. For a sense of how many claims were involved, see JOSEPH HOWELL, ACCOUNTANT, DEP'T OF WAR, INVALID PENSION CLAIMS (Mar. 2, 1795), in 1 AMERICAN STATE PAPERS: CLAIMS 165 (Walter Lowrie & Walter S. Franklin eds., 1834). The document reveals that during a two-month period from January to March 1795, district judges transmitted pension claims to the War Department on behalf of some thirty-seven claimants from the following districts: Connecticut (thirteen), Georgia (six), Kentucky (one), Maryland (one), New Jersey (four), New York (one), North Carolina (three), Pennsylvania (five), and Vermont (three). Id. at 166-71. The document also reveals that a number of additional claims were rejected or deferred due to problems of proof. Id. at 172. Legislation adopted in 1796 added several hundred individuals to the pension rolls. See Act of Apr. 20, 1796, ch. 15, 1 Stat. 454.
214. See Act of Mar. 23, 1792, ch. 11, § 3, 1 Stat. 243, 244. ("[I]t shall be the duty of the judges of the circuit courts respectively, during the term of two years from the passing of this act, to remain at the places where the said courts shall be holden, five days at the least from the time of opening the sessions thereof . . . .").
215. See, e.g., Letter from James Iredell to Hannah Iredell (May 15, 1792), in 2 DHSC, supra note 104, at 278 (recounting the completion of the Circuit Court for the District of South Carolina in a single day); Memorandum from the Circuit Court for the District of Maryland (Nov. 7, 1794), in 2 DHSC, supra note 104, at 491 (describing a one-day session in November 1794 for the Circuit Court for the District of Maryland); Memorandum from the Circuit Court for the District of New York (Sept. 5, 1792), in 2 DHSC, supra note 104, at 293 (describing a two-day session of the Circuit Court for the District of New York in September 1792); Memorandum from the Circuit Court for the District of Pennsylvania (Oct. 11, 1792), in 2 DHSC, supra note 104, at 306 (describing a two-day session of the Circuit Court for the District of Pennsylvania in October 1792).
216. Hayburn's Case, 2 U.S. (2 Dall.) 409, 410 n. (1792).
217. Id. at 413 n.
218. For a similar translation of the subtleties of early Republican correspondence, see JOSEPH J. ELLIS, FOUNDING BROTHERS: THE REVOLUTIONARY GENERATION 141-45 (2000) (reading between the lines of an exchange between Washington and Jefferson).
219. See Act of Feb. 28, 1793, ch. 17, § 1, 1 Stat. 324 (authorizing district judge to appoint three commissioners to hear pension claims).
220. The new statute provided that "[a]ll evidence relative to Invalids shall be taken upon oath or affirmation, before the judge of the district, in which such invalids reside, or before any three persons specially authorized by commission from the said judge." Id.
221. See id. § 2 (providing for the Secretary at War to make such comments on the evidence as would enable Congress "to take such order thereon, as they may judge proper").
222. Indeed, the literature largely ignores the terms of the 1793 amendments. One scholar who did consider the statute simply remarked that the provision for district judge control of the appointment of commissioners appeared to have solved any problems with the pension system. See Henderson, supra note 96, at 50.
223. See Act of Mar. 23, 1792, § 2, 1 Stat. 243, 244 ("[Qualifying applicants] shall also be allowed such farther sum . . . as the circuit court of the district, in which they respectively reside, may think just."). Justice Iredell based his initial doubts about the commissioner approach on the statute's assignment of the work to the courts and not the judges, but he ultimately devised an intricate way around the problem. See Tushnet, supra note 179, at 204-05 (explaining Iredell's interpretive move).
224. U.S. CONST., art. II (empowering Congress to vest the appointment of inferior officers in the courts of law).
225. For the role of the district courts in amassing evidence that the Secretary of the Treasury would then use in passing on requests for a remission of penalties under the customs laws, see Act of May 26, 1790, ch. 12, 1 Stat. 122. The Act calls for individuals to submit a petition to the district judge, setting forth the basis for the remission of a "fine, penalty, or forfeiture" imposed to enforce the revenue laws. Id. The judge was to conduct a summary inquiry, with notice to the U.S. attorney, into the circumstances and annex the facts to the petition for transmission to the Secretary of the Treasury. Id. at 123. Ultimate "power" to "mitigate or remit" the fines and penalties was vested in the secretary, along with the power to terminate any prosecution on such terms as the secretary deems "reasonable and just." Id. For an account of the significance of the district court's ministerial role, see Charlotte Crane, Asserting and Separating Power: The Remission of Taxes in the Early Republic (unpublished manuscript, on file with the author). Judge Bee referred to the growth of this ministerial function in his account of the expansion of the admiralty docket. See Letter from Thomas Bee to U.S. Senators from South Carolina, supra note 134.
226. Act of Mar. 2, 1793, ch. 21, 1 Stat. 333.
227. See Act of June 5, 1794, ch. 47, 1 Stat. 376.
228. Act of June 9, 1794, ch. 64, § 1, 1 Stat. 395.
229. See Act of Mar. 2, 1793 § 4, 1 Stat. at 334 (authorizing the appointment of "discreet persons learned in the law" to take bail in criminal matters). These "discreet persons" later evolved into the commissioners, and magistrates, of the federal courts. Charles A. Lindquist, The Origin and Development of the United States Commissioner System, 14 AM. J. LEGAL HIST. 1, 5-6 (1970).
230. See Act of June 9, 1794 § 1 (authorizing district courts to appoint "commissioners" to take sworn statements as to the value of property brought before the court in admiralty proceedings); Act of June 5, 1794 § 1 (appropriating funds to pay certain additional expenses of the "commissioners" of the loan office); Act of Mar. 2, 1793 (appropriating funds to pay "commissioners" who were to conduct negotiations with the Native Americans and authorizing payment of expenses and a fee of eight dollars per day).
231. As Linquist explains, "[u]nder the act of 1896, commissioners were allowed $5 per day for holding one or more preliminary examinations, $1 per search warrant issued, and 75¢ per arrest warrant or bail presentment." Lindquist, supra note 203, at 14. This fee system produced problems that one might have predicted based on a review of the colonial experience. Congressional investigations in the late nineteenth century revealed that commissioners held multiple offices and tended to multiply tasks and pursue trifling cases, all in pursuit of greater fee income. Id. at 9. Further investigations occurred over the decades, but it was not until 1968 that Congress substituted a salaried corps of magistrates for fee-paid commissioners. Id. at 15-16. Today, payment of commissioners for the issuance of warrants (but not their denial) would violate due process. See supra note 44 and accompanying text.
232. See supra notes 89-91 and accompanying text.
233. Cf. Mistretta v. United States, 488 U.S. 361, 402-03 (1989) (concluding from Hayburn's Case that federal judges can accept a second office under the federal government so long as it does not impede their ability to perform their judicial duties and the judge accepts the new position voluntarily); Tushnet, supra note 185 (portraying Hayburn's Case as approving the use of judges in ministerial positions).
234. Such dual-office holding by the federal judiciary would appear to pose serious constitutional problems, especially when the Constitution was seen as preventing the judges from handling pension claims in their capacity as judges. But district court judges did perform the equivalent of ministerial work in connection with the administration of the tax-collection system. The impost system required that evidence be collected in the ports and submitted to the Treasury Department for review and final determination. Such judicial decisions were, like the pension decisions, subject to a degree of revision and control by the executive branch. District Judge Thomas Bee alluded to the problem when he described a portion of his admiralty work as "ministerial." See supra note 199.
235. Jay, supra note 144, at 117-34; Casto, supra note 144.
236. See, e.g., Pushaw, supra note 29, at 485-87.
237. The Court may not have been entirely consistent in refusing doubtful new business. During the early Republic, the Court agreed to hear "feigned cases" - cases in which the parties contrived to bring a disputed question before the federal courts for resolution. E.g., Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Pennington v. Coxe, 6 U.S. (2 Cranch) 33 (1804). Both Pennington and Fletcher were based upon a fictional wager between the parties that was meant to give rise to a personal action for damages. Charlotte Crane, Pennington v. Coxe: A Glimpse at the Federal Government at the End of the Federalist Era, 23 VA. TAX REV. 417 (2003);
238. Lindsay G. Roberston, "A Mere Feigned Case": Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture, 2000 UTAH L. REV. 249. In Pennington, the wager was calibrated at a level that would satisfy the threshold amount for the exercise of appellate jurisdiction by the Supreme Court. See Crane, supra, at 454 n.102 (noting that none of the taxpayers had a tax liability that would reach the $2,000 threshold for Supreme Court review). The parties clearly specified the issues for resolution by writing them into the terms of their hypothetical wager. Id. at 461. Despite the argument that such feigned or hypothetical questions do not satisfy the justiciability requirements of Article III, the Court resolved the cases on the merits. Perhaps the Court's resolution of these cases suggests a willingness to grasp for new business that would belie the claim that a salary-based compensation system would tend to discourage such behavior. But one can question whether the example of feigned cases undercuts the claim that salary-based compensation would offer an incentive to preserve jurisdictional limits. For starters, feigned cases were likely to be viewed as one-off events; they were designed to settle a particular question but not likely to bring a steady stream of litigation to the federal courts. (Indeed, feigned cases might obviate the need for later litigation as in the case of Pennington.) Accordingly, they threatened a smaller docket impact than, say, advisory opinions or pension claims. Moreover, the Court eventually came to question the wisdom of agreeing to hear feigned cases, a development that may reflect a growing awareness of the importance of preserving crisp justiciability boundaries. Finally, one can argue that the feigned case presented little real threat to the justiciability values of Article III. In Pennington, for example, a concrete dispute between sugar refiners and the government required settlement through litigation. The feigned case that brought the issue to the Court thus resembles a declaratory judgment action in permitting anticipatory resolution of a case of actual controversy. In a friendly or amicable dispute, both parties can agree on the need for a judicial answer to their legal dispute without necessarily lacking the adversity necessary to support the exercise of judicial power. See Collins, supra note 18, at 1847 ("[A]dversariness [should] appear on the face of the pleadings in the form of a viable common-law claim [in friendly disputes]."); Crane, supra, at 456 n.107 (noting that the parties to a feigned case acted as adversaries on the merits).
239. For accounts of the episode, see JAY, supra note 144, at 93-94, and Wheeler, supra note 29, at 141-44. Travel at his own expense to attend the meeting, at a time when the Chief Justice was chafing under travel obligations more generally, must have been especially unwelcome. The Chief Justice sent a legal opinion by mail instead. JAY, supra 144, at 93, 248 n.60. After this episode, Chief Justice Jay and his successor Chief Justice Ellsworth did not regularly attend meetings of the board. Id. at 248 n.61
240. For an overview of ministerial compensation, see OFFICE OF THE ATTORNEY GEN. OF THE U.S., OPINION OF THE ATTORNEY GENERAL (W. WIRT) ON ALLOWANCES OF SALARIES AND OUTFITS TO PUBLIC MINISTERS OF THE UNITED STATES (Oct. 1, 1821), in 5 AMERICAN STATE PAPERS: FOREIGN RELATIONS 755 (Asbury Dickins & James C. Allen eds., 1825). Wirt's opinion reveals that ambassadors to Great Britain and France routinely received both a $9,000 salary and an outfit of equal amount; somewhat less was paid to ministers to less important countries. See id. at 757. Wirt's opinion also reveals that Chief Justice Jay received no salary or outfit, but notes that his expenses were borne. In contrast, when Oliver Ellsworth was appointed envoy to France in 1800, he received a full outfit. Id.
241. WALTER STAHR, JOHN JAY: FOUNDING FATHER 316 (2005) ("Senator John Taylor opposed the appointment upon the ground of incompatibility in the office of Chief Justice and Envoy Extraordinary. In Taylor's view, such an appointment would destroy the independence of the Judiciary by teaching them to look for lucrative employment from and dependent upon the pleasure of the Executive." (internal quotation marks omitted)).
242. Newspaper critics offered a range of arguments, many based on the claim that the executive could subvert judicial independence if he were free to offer lucrative posts to federal judges. In addition, some critics urged that, in making a treaty, Jay would be exercising powers of legislation that were incompatible with the judicial function. See, e.g., From Correspondents, BACHE'S GEN. ADVERTISER, Apr. 19, 1794, at 3. One critic opposed the appointment "upon the ground of the incompatibility in the office of Chief Justice and Envoy Extraordinaire." STAHR, supra note 214, at 316 (internal quotation marks omitted).
243. STAHR, supra note 214, at 339-40.
244. The treasury provided Jay with a bill of exchange valued at $18,000 on which he was free to draw while in London. See Letter from John Jay to Henry Van Schaack (Sept. 23, 1800), in 1 WILLIAM JAY, THE LIFE OF JOHN JAY 415 (New York, J. & J. Harper 1833). Note that the $18,000 figure corresponds to the amount previously paid to ministers who were to receive a salary and outfit of $9,000. Jay returned the unused balance along with accounts reflecting expenses of $12,000. See id. at 416 (setting forth Jay's accounts on his return from London); OFFICE OF THE ATTORNEY GENERAL OF THE U.S., supra note 213, at 756 (noting that Jay received no salary for his service as envoy but that he was paid his actual expenses of $12,000); Instructions from Edmund Randolph to John Jay (May 6, 1794), in 1 AMERICAN STATE PAPERS: FOREIGN RELATIONS 472, 474 (Walter Lowrie & Matthew St. Clair Clarke eds., 1833) (noting that Jay's expenses were to be paid, together with an allowance of $1,350 per annum for a secretary, and making no mention of salary).
245. See Letter from John Jay to Henry Van Schaack, supra note 217, at 415-16 (describing his critics as having valued his passage to London at $3,700 but noting that he had "no agency" in booking the vessel).
246. See STAHR, supra note 214, at 333-34 (explaining that Jay concluded his business as envoy in the fall, but remained in London both to avoid a dangerous winter crossing of the Atlantic and to make a dignified exit from the Court of St. James).
247. See Letter from John Jay to Henry Van Schaack, supra note 217, at 415 (responding to the charge that he had received some $52,000 in outfit and expenses in the course of negotiating the treaty). In his own defense, Jay explained that he had refused any compensation as envoy but had stipulated that his "stated salary as chief justice must be continued." Id. at 416. On Jay's reputation, see Jay, supra note 144, at 86-91.
248. See Holt, supra note 21, at 327-28 & n.104.
249. Note that during the period of Jay's service, 1790-1795, the Court adjudicated only four cases on the merits. See GOEBEL, supra note 95, at 812 tbl.13. Thus, for Justices during this period, circuit riding was far and away the most significant feature of their judicial office.
250. Justice Samuel Chase offered the clearest statement of this understanding, and a detailed argument against the constitutionality of the Act of 1802. See Letter from Samuel Chase to John Marshall (Apr. 24, 1802), in 6 THE PAPERS OF JOHN MARSHALL 109 (Charles F. Hobson ed., 1990). Chase's remarkable letter anticipated the analysis in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), noting that the Court was one of limited original jurisdiction and making a considered argument for the exercise of judicial review. Letter from Samuel Chase to John Marshall, supra, at 110, 112. He also argued that the new circuit judges, having been commissioned, could not be disreplaced from their offices other than by impeachment and conviction under the Constitution. Id. at 111-13. Finally, he urged Marshall to convene the whole Court for deliberations, fearing that any individual judge would "sink" under the "burthen" of having to decline circuit duty on his own. Id. at 116. Marshall surveyed his colleagues on the Court and found that a majority viewed the matter, as the Court later explained in Stuart v. Laird, 5 U.S. (1 Cranch) 299 (1803), to have been settled by past practice.
251. Marshall clearly understood the politics of the situation. As he explained, "[t]he consequences of refusing to carry the law into effect may be very serious." Letter from John Marshall to William Paterson (Apr. 19, 1802), in 6 THE PAPERS OF JOHN MARSHALL, supra note 223, at 108, 109. Although the Justices would doubtless put aside the consequences and do their duty under the Constitution, Marshall thought "the conviction of duty ought to be very strong before the measure is resolvd [sic] on." Id. The fact that the Justices had previously ridden the circuits would, Marshall explained, "detract very much" from the public's likely perception of the Court's "sincerity" in declaring circuit duties unconstitutional. Id.
252. 5 U.S. (1 Cranch) 299. The Court's Stuart opinion upheld the Judiciary Act of 1802 against a challenge to the legitimacy of the new circuit courts. Critics have rightly questioned the Court's approach, which concluded that the issue of circuit riding had been settled by the contemporaneous exposition of Article III in the assignment of such duties to Supreme Court Justices. In focusing on circuit riding, the Court ignored counsel's argument that the displacement of the circuit judges violated the tenure provisions of Article III. See Alfange, supra note 27, at 363.
253. 5 U.S. (1 Cranch) 137. For a detailed reconstruction of the political climate, see Alfange, supra note 27, at 349-72. For doubts about certain of Alfange's legal conclusions, see Pfander, supra note 161, at 1523-31 (supporting Marshall's interpretation of section 13 and Article III against Alfange and other critics, who argue that section 13 failed to confer freestanding power to issue writs of mandamus).
254. See supra notes 159-165 and accompanying text.
255. Stuart, 5 U.S. (1 Cranch) at 305-06.
256. Marbury, 5 U.S. (1 Cranch) at 138.
257. Justice Chase anticipated this resolution in arguing that Congress could require "additional Judicial duties of any of the Judges" but could not "require of the Judges, duties that are impracticable [or] impose duties on them that are unreasonable, and for the manifest purpose of compelling them to resign their Offices." Letter from Samuel Chase to John Marshall, supra note 223, at 111.
258. Letter from John Marshall to William Paterson, supra note 224, at 108.
259. Id. at 109. But Marshall himself received his commission before the 1801 elimination of circuit duty and would have had no basis for mounting such a claim (except on a theory that the right to a downsized circuit-riding obligation had vested as soon as the 1801 legislation took effect).
260. Stuart v. Laird, 5 U.S. (1 Cranch) 299, 305 (1803) (argument of counsel).
261. For accounts of the court reorganization efforts in Virginia in 1788, see Charles F. Hobson, St. George Tucker's Law Papers, 47 Wm. & Mary L. Rev. 1245, 1253-60 (2006);
262. William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455, 513-17 (2005).
263. Cases of the Judges of the Court of Appeals, 8 Va. (4 Call) 135 (1788).
264. Id. at 145.
265. Id.
266. For a description of the resulting system of district and circuit courts and burdens associated with traveling, see Hobson, supra note 234, at 1257-60.
267. Cases of the Judges, 8 Va. (4 Call) at 150.
268. 2 U.S. (2 Dall.) 419 (1793).
269. Id. at 425. On the Chisholm decision and the role state debts played in the ratification of the Eleventh Amendment, see James E. Pfander, History and State Suability: An "Explanatory" Account of the Eleventh Amendment, 83 CORNELL L. REV. 1269 (1998).
270. See Holt, supra note 21, at 339.
271. On the other hand, the Justices may not have anticipated the opposition to the Chisholm decision and may have approached the issue as if the text of Article III was decisive and political considerations were of less significance.
272. The Justices of the Supreme Court received their first nominal salary increase in 1819. See Rosenn, supra note 4, at 343 tbl.1 (noting a salary increase from $3,500 to $4,500 for associate judges in 1819).
273. Sure enough, the Court disposed of only four cases on the merits in its first six years of existence; its early sessions were devoted mostly to ceremonial matters and the admission of lawyers to its bar. See Goebel, supra note 95, at 812 tbl.13 (reporting that the Court adjudicated four cases on the merits from 1790 to 1795, but none in the first three years, 1790-92).
274. Letter from the Justices of the Supreme Court to the Congress of the United States, supra note 169, at 289 (describing a "general and well founded opinion" that the Judiciary Act of 1789 introduced a "temporary expedient, [rather] than a permanent System").
275. See James E. Pfander, Removing Federal Judges, 74 U. CHI. L. REV. 1227 (2007).
276. The judges of the Virginia Court of Appeals (a group that included Judge Blair, later a Justice of the Supreme Court) highlighted the salary issue in their 1788 remonstrance against legislation that would have assigned them the additional job of serving as trial court judges. See supra notes 235-239 and accompanying text. Under the state constitution, they argued, the assembly could not make judges into "hewers of wood and drawers of water"; such demeaning assignments could only be meant to drive the judges from office in violation of the spirit of life tenure and judicial independence. Cases of the Judges of the Court of Appeals, 8 Va. (4 Call) 135, 145-46 (1788). For the same reason, legislation that would expand their judicial duties without providing any additional compensation would encroach on judicial independence. See generally Hobson, supra note 234, at 1253-58.
277. See supra notes 115-117 and accompanying text.
278. See supra note 212 and accompanying text.