RS 27

nited states courtsof Appeals, now apportioned among thirteen circuits, should be celebrating their 225th anniversary. After all, the American government began functioning in 1789. U But these appeals courts are only 113 years old. Although the Judiciary Act of 1789 created three tiers of federal courts,1 the intermediate courts, known as circuit courts, bore little resemblance to our current courts of appeals. The circuit courts existed until the early twentieth century and were an important part of the federal judicial system, yet scholars have not paid much attention to them. Until 1911, when Congress created the courts of appeals as we know them today,2 the intermediate courts functioned both as courts of appeals and trial courts. Hence the title of this paper: in the early republic these courts were hybrid courts. The U.S. Constitution, ratified in 1788, created the Supreme Court but left the formation of lower federal courts to Congress.3 Many doubted the necessity of lower federal courts, as each state had its own judiciary. Good reasons had to be produced for setting up a parallel federal system. Most people understood the need for a national court – the Supreme Court – to deal with questions involving foreign nations, but what other tasks federal courts should undertake remained to be decided. Giving substance to the vague directives of Article III of the Constitution, which established the third branch of the federal government, became a primary concern. When Congress convened in the spring of 1789, the Senate took up the task of designing a federal judicial system immediately. The Judiciary Act of 1789 became law on September 24. Section 1 provided that the Supreme Court would consist of a chief justice and five hybrid appellate courts 1 U. S. Statutes at Large, vol. 1, p. 73, sections 1, 3, and 4. 2 U. S. Statutes at Large, vol. 36, p. 1087. 3 U.S. Constitution, Article III, Section 1. 196

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