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Posted by: Russell Fowler on Jul 1, 2018

Journal Issue Date: Jul 2018

Journal Name: July 2018 - Vol. 54, No. 7

Circuit-riding judges were begun by Henry II, the “Father of the Common Law.” His royal courts brought uniform justice to his realm at the expense of barbarous manorial tribunals. His justices fanned out across the land dispensing Henry’s law and order, and they adopted the best customs found for the entire nation: “the common law.” In 1166 the first two judges were dispatched: Geoffrey de Mandeville
and Sir Robert de Lucy. By the 1180s there were as many as 30 “itinerate justices” roving the country with commissions to try “all pleas whatsoever.”[1] By 1176 six became the standard number of circuits in England.”[2]

An English medieval circuit-riding judge in his crimson robe.
An English medieval circuit-riding judge in his crimson robe.

The Majesty of the Law

Multitudes greeted the justices.[3] The splendor of their procession gave majesty to the law. And well into the 20th century, quaint welcoming ceremonies were common. A barrister recounted:

A Rolls-Royce drew up outside the law courts in a provincial town and the High Court judges emerged, fully robed, to be greeted by the High Sheriff, the lord Mayor and a fanfare of trumpets. It was an important event and deserved to be, for was not the royal court, in the person of the judges, visiting the provinces to do justice?[4]

In the age of railroads, when the train stopped at Ludlow on its way to Hereford from Shrewsbury, the judges were always presented with cakes on a silver tray and a loving cup full of wine. This ceremony ceased when a judge complained of the delay.[5]

In the Middle Ages, so many flocked to observe the grand procession that lodging rates were controlled during “sessions.” And justices “beget fear and awe in the entire population.”[6] The law-abiding rejoiced and wrongdoers fled into the forests. Crimson robed justices not only adjudicated private disputes and tried the accused; they investigated unexplained murders and official misconduct, oversaw the demolition of illegal castles and imposed fines on communities for permitting lawlessness.[7]

Few records of these mobile courts survive from medieval times, witchcraft trials being the exception.[8] Over time, the judges evolved from politicians to professional jurists who were trained in the law and answerable to the Lord Chancellor.[9] As the bar developed, lawyers would follow the judges. When the London courts were forced to relocate to Oxford to avoid the Great Plague of 1665, a resident lamented:

The town is so full of lawyers that hardly one can go in the streets. They are the jest of the Court and hate of all the people. Their clothes are as much out of date as their speech, which none can understand but when they ask their fees. We do hope in God they shall be out of the town on Tuesday next. ... They generally all cursed this town by reason that they cannot get any lodging. They did lay 60 last night in a barn full of hay, not far from my lodging.[10]

Abraham Lincoln, circuit-riding lawyer
Abraham Lincoln, circuit-riding lawyer.

These barristers would do verbal battle at day and celebrated together at night. Once, when a barrister was arguing to a jury, a spectator in the gallery fell asleep and tumbled through the railing to his death on the courtroom floor below. Mischievous lawyers had their fellow barrister indicted for “murdering the victim with a blunt instrument, to wit his speech.”[11]

The judges would periodically meet in London to select circuits. The most senior got to choose first.[12] In 1262, a judge pleaded with the Lord Chancellor to relieve him from serving the cold circuit in the north:

I entreat your Lordship, with all the persuasion I can muster, that you can see your way to arrange that I do not have to go on circuit in Cumberland. I should hate to have to toil up there; it is such a long way, and the unpleasant climate is extremely bad for my constitution. … Long may your Lordship flourish. If you have to stay in London and war breaks out, the three jars of wine I have in my chambers near to your own are for you to take and drink. My good wishes once again.”[13]

American Circuits

On the American frontier, circuit-riding lawyers were the vanguard of civilization, but “[o]nly the hardiest survived for long in the backwoods. There, a strong constitution, common sense and a talent for storytelling were more important than knowledge of the law.”[14] Andrew Jackson and Abraham Lincoln were among them, with Jackson riding circuit as a lawyer and a judge.[15] Traveling about the state and demonstrating speaking ability were of advantage to young lawyers hoping for a political career.[16]

Spending as much as six months a year traversing horrible roads, lawyers carried their state’s statute book in their saddlebags. They also bore Blackstone’s Commentaries by Englishman William Blackstone: “Ordinary lawyers referred to Blackstone constantly; they used his book as a shortcut to the law.”[17] His treatise “had particular force in the new United States, where the law was part of a frontier culture starved of reading matter.”[18] Yet lack of books was not the only challenge for a circuit-riding lawyer:

Employed usually after reaching the county seat, and entrusted with the legal affairs of persons of whom he probably never had seen or heard of before, he was obliged to try their case with little or no preparation. Pleadings like answers, demurrers, motions, and the like had to be drafted at once and made ready for the opening of court within a few hours.[19]

Circuit-riding East Tennessee Chancellor Thomas T. Williams. Courtesy of the East Tennessee Historical Society, Knoxville.
Circuit-riding East Tennessee Chancellor Thomas T. Williams. Courtesy of the East Tennessee Historical Society, Knoxville.

Circuit-riding was trying for the judges, too. Chancellor Thomas T. Williams of Knoxville presided over Tennessee’s Eastern Chancery Division from 1836 to 1854. His labors were described as follows:

He presided in nineteen counties, holding thirty-eight courts a year, and was absent from home for forty weeks each year. There were no railroads in Tennessee until the “fifties,” and to all his courts Chancellor Williams went on horseback, over rough roads, riding winter and summer, and enduring hardships that few men could have supported.[20]

As many as 17 trials a day were not uncommon as log courthouses filled with spectators.[21] After court, the bench and bar often enjoyed comradery in the local tavern. Chancellor William “Big Bill” Anderson of Nashville presided from 1827 to 1830 over Tennessee’s enormous Western Chancery Division, bounded by the Cumberlands on the east and the Mississippi on the west. He was renowned for singing tunes with lawyers late into the night.[22]

Today’s Tennessee maintains circuit-riding judges and chancellors and the “Circuit Court of Tennessee” is named for the practice. Moreover, Tennessee has a circuit-riding Supreme Court, with sessions held at Jackson, Nashville and Knoxville. Prior to the Constitution of 1835, its predecessor, the Supreme Court of Errors and Appeals, met at even more sites “where it had no access to law books.”[23]

 
Even when carriage travel was available, circuit-riding twice a year was arduous for Supreme Court justices.
Even when carriage travel was available, circuit-riding twice a year was arduous for Supreme Court justices.

Circuit-Riding Supreme Court Justices

The Judiciary Act of 1789 mandated that U.S. Supreme Court justices, in addition to their appellate duties, serve as trial judges of the old federal circuit courts. The southern circuit necessitated a twice yearly 1,800-mile journey. Justices bemoaned the physical burden and the absence from their appellate work in Washington. But congressmen contended that circuit-riding presented a wholesome display of federal authority in remote parts of the young country.[24] And some of these trials were of considerable importance. Chief Justice John Marshall, for example, presided over the 1807 treason trial of Aaron Burr in the U.S. Circuit Court in Richmond.

Because of circuit obligations, the number of justices on the Supreme Court was adjusted to meet circuit needs, and geography was of great concern when appointing justices. It was believed that each justice should have knowledge of the law of their assigned circuit or at least of one of the states of the circuit. Accordingly, vacancies were filled with justices from where the vacancy occurred. This also offered a geographic balance on the court during an age of regional rivalries. Circuit-riding duties of Supreme Court justices were not completely ended until adoption of the Court of Appeals Act of 1891.[25]

Notes

  1. J. H. Baker, An Introduction to English Legal History 20 (3rd ed. 1990).
  2. Id. at 18-19.
  3. Id. at 19.
  4. Dick Hamilton, Foul Bills and Dagger Money 16 (1979).
  5. Id. at 207.
  6. Baker at 19.
  7. See Id.
  8. See Hamilton at 27.
  9. See Id. at 194.
  10. Id. at 57-58.
  11. Id. at 261.
  12. Id. at 193.
  13. Id. at 194.
  14. Paul O’Neil, The Frontiersmen 159 (1980).
  15. See Russell Fowler, “Andrew Jackson on Tennessee’s Supreme Court,” 51, No. 3 Tennessee Bar Journal 25 (March 2015).
  16. See Id.
  17. Lawrence M. Friedman, A History of American Law 112 (2nd ed. 1985).
  18. Charles Rembar, The Law of the Land 46 (1980).
  19. John H. Langbein, et al., History of the Common Law 1017 (2009).
  20. Joshua W. Caldwell, Sketches of the Bench and Bar of Tennessee 51 (1898).
  21. See O’Neil at 159.
  22. Henry Foote, The Bench and Bar of the South and Southwest 83 (1876).
  23. Robert H. White, Tennessee: Its Growth and Progress 515 (1947).
  24. Kermit L. Hall, “Circuit Riding” in The Oxford Companion to the Supreme Court of the United States 145 (Kermit L. Hall, ed. 1992).
  25. See William H. Rehnquist, The Supreme Court 138-39 (1987); Sandra Day O’Connor, The Majesty of the Law 18 (2003).

Russell Fowler RUSSELL FOWLER is director of litigation and Advocacy at Legal Aid of East Tennessee (LAET) and since 1999 has been adjunct professor of political science at the University of Tennessee at Chattanooga. He served as the law clerk to Chancellor C. Neal Small in Memphis and earned his law degree at the University of Memphis in 1987. Fowler has many publications on law and legal history, including many in this Journal.