Book review: The Role of the Circuit Courts in the Formation of United States Law in the Early Republic

The author of this scholarly work requires little by way of introduction. A Bencher of Middle Temple and Honorary Fellow and Visiting Research Fellow of Liverpool John Moores University, he has been the Remembrancer for the Northern Circuit for many years and as such compiled his Northern Circuit Directory (1876-2004) which he updated in 2015.

This current work deals with a vitally important period of US legal history and the crucial role of the circuit courts in the development of a uniform system of federal law across the nation. By reference to the judgments, opinions and letters of four Associate Justices (Washington, Livingston, Story and Thompson) as presiding judges of their respective circuit courts in the period 1801-1835 and with separate sections of his work devoted to the work of each of them, the author demonstrates how federal law developed from the lower courts upwards rather than from the Supreme Court downwards.

The justices went out on circuit with no specific guidance as to the approach they should adopt to achieve the uniform system of federal law and procedure essential to the stability of the social and economic needs of the new Republic. There were few Supreme Court opinions and hardly any federal statutes to guide them. They sought uniformity in each other’s circuit opinions and those opinions were often derived from Blackstone’s Commentaries on the Laws of England. Consistency was achieved by exchanges of ideas when they were together in Washington and by writing to each other on circuit.

This laudable and detailed investigation into the work of the four prominent justices of the United States circuit courts establishes those courts as key to the development of the federal court system in the Early Republic and how the law was shaped in those early years through the depth of its inquiry into the legal issues facing the justices on circuit.

Based upon his research the author concludes that by 1835 these four justices had found American law a skeleton upon which to build and their work in the federal courts at the very beginning of the federal court experiment and later in their duties in the Supreme Court left a fully formed body of federal law to which later generations have added.

As a guide to a critical period of US history, legal as well as economic and political, I commend this book as compulsory reading.

Reviewer: David Steer QC DL, Leader of the Northern Circuit 2002-04