1787
In the Judiciary Act of 1789, the First Congress provided the detailed
organization of a federal judiciary that the Constitution had sketched
only in general terms. Acting on its constitutional authority to
establish inferior courts, the Congress instituted a three-tiered
judiciary. The Supreme Court consisted of a Chief Justice and five
associate justices. In each state and in Kentucky and Maine (then part
of other states), a federal judge presided over a United States
district court, which heard admiralty and maritime cases and some
other minor cases. The middle tier of the judiciary consisted of
United States circuit courts, which served as the principal trial
courts in the federal system and exercised limited appellate
jurisdiction. Two Supreme Court justices and the local district judge
presided in the circuit courts. Under the practice known as "circuit
riding," each justice was assigned to one of three geographical
circuits and traveled to the designated meeting places within the
districts of that circuit.
Senators Oliver Ellsworth of Connecticut and William Paterson of New
Jersey were the principal authors of the act. Before debating the
bill, the Senate distributed printed copies and solicited the opinions
of constituents, particularly among the legal community. The debates
over ratification of the Constitution made clear that many citizens
feared that an independent federal judiciary might threaten state
courts and restrict certain civil liberties. In response to those
concerns, the act allowed state courts to exercise concurrent
jurisdiction over many federal questions, it required federal courts
to select juries according to the procedures used by the district’s
state courts, and it guaranteed the right to trial in the district
where the defendant lived. By establishing a relatively high monetary
value for cases in the circuit courts, the act protected small debtors
and those who could not afford to travel to a distant court. The
debate over the Judiciary Act coincided with Congress’s consideration
of the Bill of Rights, which offered further assurances that the
federal courts would respect traditional liberties such as trial by
jury.
The Judiciary Act of 1789 represented a compromise between those who
wanted the federal courts to exercise the full jurisdiction allowed
under the Constitution and those who opposed any lower federal courts
or proposed restricting them to admiralty jurisdiction. The act
acknowledged the legitimacy of the state courts and protected
individual rights at the same time that it assured the supremacy of
the federal judiciary. Extending the jurisdiction of the circuit
courts to cases in which the parties were residents of different
states greatly enhanced the importance of the federal courts. One of
the most controversial provisions of the act, Section 25, granted the
Supreme Court jurisdiction to hear appeals of decisions from the high
courts of the states when those decisions involved questions of the
constitutionality of state or federal laws or authorities. That and
other provisions, such as the requirement for circuit riding, provoked
frequent demands for revision of the act, but the basic outline of a
multi-tiered federal court structure operating alongside state courts
survives today.
For further reading: Documentary History of the Supreme Court of the
United States, 1789-1800, v. 4, Organizing the Federal
Judiciary. Maeva Marcus, et al., eds. (New York: Columbia University
Press, 1992), 22-107; Origins of the Federal Judiciary: Essays on the
Judiciary Act of 1789, Maeva Marcus, ed. New York: Oxford University
Press, 1992.
One of the first acts of the new Congress was to establish a federal
court system in the Judiciary Act of 1789. The Constitution provided
that the judicial branch should be composed of one Supreme Court and
such inferior courts as Congress from time to time established. But
unlike the legislative provisions, in which the framers clearly
spelled out the powers of the Congress, Article III of the
Constitution is rather vague on just what the judicial powers should
be.
Congress had little precedent to guide it, since in the British system
the three court systems -- Common Pleas (private law), King's Bench
(criminal law) and Chancery (equity) -- operated independently, and
derived their authority from the King's writ. Even during colonial
times, when American courts followed English precedent, the frontier
society had been too poor in resources and trained personnel to follow
British practice. So Congress had, in essence, a clean slate upon
which to write. One of the more imaginative steps was combining law
and equity into a single court system, thus providing for a more
effective and efficient means of delivering justice.
The debate in Congress centered on how much power the Constitution
transferred from the states to the federal government. States' rights
activists opposed giving the new courts too much authority, while
supporters argued that only a strong federal court system could
overcome the weaknesses that had been so apparent during the
Confederation period.
Looking back, it is hard to envision how the supremacy of the
Constitution provided for in Article VI could possibly have been
sustained without a strong federal court system, one empowered to
review and, if necessary, overturn state court decisions. Otherwise,
the country would have been saddled again with thirteen independent
jurisdictions and no means to conform them to a single national
standard. "I have never been able to see," James Madison wrote in 1832
commenting on the federal courts, how "the Constitution itself could
have been the supreme law of the land; or that the uniformity of
Federal authority throughout the parts to it could be preserved; or
that without the uniformity, anarchy and disunion could be prevented."
The courts of the United States, as much as the legislative and
executive branches, have been instruments of democratic government,
binding a diverse people together.
For further reading: D.F. Henderson, Courts for a New Nation (1971);
Julius Goebel, Antecedents and Beginnings to 1801 (1971); the first
volume of the Holmes Devise, History of the Supreme Court of the
United States; and Maeva Marcus, ed., Origins of the Federal Judiciary
(1992).
http://usinfo.state.gov/usa/infousa/facts/democrac/8.htm
An Act to establish the Judicial Courts of the United States
Section 1.
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That the supreme court of the
United States shall consist of a chief justice and five associate
justices, any four of whom shall be a quorum, and shall hold annually
at the seat of government two sessions, the one commencing the first
Monday of February, and the other the first Monday of August. That the
associate justices shall have precedence according to the date of
their commissions, or when the commissions of two or more of them bear
date on the same day, according to their respective ages.
Section 2.
And be it further enacted, That the United States shall be, and they
hereby are divided into thirteen districts, to be limited and called
as follows, to wit: one to consist of that part of the State of
Massachusetts which lies easterly of the State of New Hampshire, and
to be called Maine District; one to consist of the State of New
Hampshire, and to be called New Hampshire District; one to consist of
the remaining part of the State of Massachusetts, and to be called
Massachusetts district; one to consist of the State of Connecticut,
and to be called Connecticut District; one to consist of the State of
New York, and to be called New York District; one to consist of the
State of New Jersey, and to be called New Jersey District; one to
consist of the State of Pennsylvania, and to be called Pennsylvania
District; one to consist of the State of Delaware, and to be called
Delaware District; one to consist of the State of Maryland, and to be
called Maryland District; one to consist of the State of Virginia,
except that part called the District of Kentucky, and to be called
Virginia District; one to consist of the remaining part of the State
of Virginia, and to be called Kentucky District; one to consist of the
State of South Carolina, and to be called South Carolina District; and
one to consist of the State of Georgia, and to be called Georgia
District.
Section 3.
And be it further enacted, That there be a court called a District
Court, in each of the afore mentioned districts, to consist of one
judge, who shall reside in the district for which he is appointed, and
shall be called a District Judge, and shall hold annually four
sessions, the first of which to commence as follows, to wit: in the
districts of New York and of New Jersey on the first, in the district
of Pennsylvania on the second, in the district of Connecticut on the
third, and in the district of Delaware on the fourth, Tuesdays of
November next; in the districts of Massachusetts, of Maine, and of
Maryland, on the first, in the district of Georgia on the second, and
in the districts of New Hampshire, of Virginia, and of Kentucky, on
the third Tuesdays of December next; and the other three sessions
progressively in the respective districts on the like Tuesdays of
every third calendar month afterwards, and in the district of South
Carolina, on the third Monday in March and September, the first Monday
in July, and the second Monday in December of each and every year,
commencing in December next; and that the District Judge shall have
power to hold special courts at his discretion. That the stated
District Court shall be held at the places following, to wit: in the
district of Maine, at Portland and Pownalsborough alternately,
beginning at the first; in the district of New Hampshire, at Exeter
and Portsmouth alternately, beginning at the first; in the district of
Massachusetts, at Boston and Salem alternately, beginning at the
first; in the district of Connecticut, alternately at Hartford and New
Haven, beginning at the first; in the district of New York, at New
York; in the district of New Jersey, alternately at New Brunswick and
Burlington, beginning at the first; in the district of Pennsylvania,
at Philadelphia and York Town alternately, beginning at the first; in
the district of Delaware, alternately at Newcastle and Dover,
beginning at the first; in the district of Maryland, alternately at
Baltimore and Easton, beginning at the first; in the district of
Virginia, alternately at Richmond and Williamsburgh, beginning at the
first; in the district of Kentucky, at Harrodsburgh; in the district
of South Carolina, at Charleston; and in the district of Georgia,
alternately at Savannah and Augusta, beginning at the first; and that
the special courts shall be held at the same place in each district as
the stated courts, or in districts that have two, at either of them,
in the discretion of the judge, or at such other place in the
district, as the nature of the business and his discretion shall
direct. And that in the districts that have but one place for holding
the District Court, the records thereof shall be kept at that place;
and in districts that have two, at that place in each district which
the judge shall appoint.
Section 4.
And be it further enacted, That the before mentioned districts, except
those of Maine and Kentucky, shall be divided into three circuits, and
be called the eastern, the middle, and the southern circuit. That the
eastern circuit shall consist of the districts of New Hampshire,
Massachusetts, Connecticut and New York; that the middle circuit shall
consist of the districts of New Jersey, Pennsylvania, Delaware,
Maryland and Virginia; and that the southern circuit shall consist of
the districts of South Carolina and Georgia, and that there shall be
held annually in each district of said circuits, two courts, which
shall be called Circuit Courts, and shall consist of any two justices
of the Supreme Court, and the district judge of such districts, any
two of whom shall constitute a quorum: Provided, That no district
judge shall give a vote in any case of appeal or error from his own
decision; but may assign the reasons of such his decision.
Section 5.
And be it further enacted, That the first session of the said circuit
court in the several districts shall commence at the times following,
to wit: in New Jersey on the second, in New York on the fourth, in
Pennsylvania on the eleventh, in Connecticut on the twenty-second, and
in Delaware on the twenty-seventh, days of April next; in
Massachusetts on the third, in Maryland on the seventh, in South
Carolina on the twelfth, in New Hampshire on the twentieth, in
Virginia on the twenty-second, and in Georgia on the twenty-eighth,
days of May next, and the subsequent sessions in the respective
districts on the like days of every sixth calendar month afterwards,
except in South Carolina, where the session of the said court shall
commence on the first, and in Georgia where it shall commence on the
seventeenth day of October, and except when any of those days shall
happen on a Sunday, and then the session shall commence on the next
day following. And the sessions of the said circuit court shall be
held in the district of New Hampshire, at Portsmouth and Exeter
alternately, beginning at the first; in the district of Massachusetts,
at Boston; in the district of Connecticut, alternately at Hartford and
New Haven, beginning at the last; in the district of New York,
alternately at New York and Albany, beginning at the first; in the
district of New Jersey, at Trenton; in the district of Pennsylvania,
alternately at Philadelphia and Yorktown, beginning at the first; in
the district of Delaware, alternately at New Castle and Dover,
beginning at the first; in the district of Maryland, alternately at
Annapolis and Easton, beginning at the first; in the district of
Virginia, alternately at Charlottesville and Williamsburgh, beginning
at the first; in the district of South Carolina, alternately at
Columbia and Charleston, beginning at the first; and in the district
of Georgia, alternately at Savannah and Augusta, beginning at the
first. And the circuit courts shall have power to hold special
sessions for the trial of criminal causes at any other time at their
discretion, or at the discretion of the Supreme Court.
Section 6.
And be it further enacted, That the Supreme Court may, by any one or
more of its justices being present, be adjourned from day to day until
a quorum be convened; and that a circuit court may also be adjourned
from day to day by any one of its judges, or if none are present, by
the marshal of the district until a quorum be convened; and that a
district court, in case of the inability of the judge to attend at the
commencement of a session, may by virtue of a written order from the
said judge, directed to the marshal of the district, be adjourned by
the said marshal to such day, antecedent to the next stated session of
the said court, as in the said order shall be appointed; and in case
of the death of the said judge, and his vacancy not being supplied,
all process, pleadings and proceedings of what nature soever, pending
before the said court, shall be continued of course until the next
stated session after the appointment and acceptance of the office by
his successor.
Section 7.
And be it [further] enacted, That the Supreme Court, and the district
courts shall have power to appoint clerks for their respective courts,
and that the clerk for each district court shall be clerk also of the
circuit court in such district, and each of the said clerks shall,
before he enters upon the execution of his office, take the following
oath or affirmation, to wit: "I, A. B., being appointed clerk of , do
solemnly swear, or affirm, that I will truly and faithfully enter and
record all the orders, decrees, judgments and proceedings of the said
court, and that I will faithfully and impartially discharge and
perform all the duties of my said office, according to the best of my
abilities and understanding. So help me God." Which words, so help me
God, shall be omitted in all cases where an affirmation is admitted
instead of an oath. And the said clerks shall also severally give
bond, with sufficient sureties, (to be approved of by the Supreme and
district courts respectively) to the United States, in the sum of two
thousand dollars, faithfully to discharge the duties of his office,
and seasonably to record the decrees, judgments and determinations of
the court of which he is clerk.
Section 8.
And be it further enacted, That the justices of the Supreme Court, and
the district judges, before they proceed to execute the duties of
their respective offices, shall take the following oath or
affirmation, to wit: "I, A. B., do solemnly swear or affirm, that I
will administer justice without respect to persons, and do equal right
to the poor and to the rich, and that I will faithfully and
impartially discharge and perform all the duties incumbent on me as ,
according to the best of my abilities and understanding, agreeably to
the constitution, and laws of the United States. So help me God."
Section 9.
And be it further enacted, That the district courts shall have,
exclusively of the courts of the several States, cognizance of all
crimes and offences that shall be cognizable under the authority of
the United States, committed within their respective districts, or
upon the high seas; where no other punishment than whipping, not
exceeding thirty stripes, a fine not exceeding one hundred dollars, or
a term of imprisonment not exceeding six months, is to be inflicted;
and shall also have exclusive original cognizance of all civil causes
of admiralty and maritime jurisdiction, including all seizures under
laws of impost, navigation or trade of the United States, where the
seizures are made, on waters which are navigable from the sea by
vessels of ten or more tons burthen, within their respective districts
as well as upon the high seas; saving to suitors, in all cases, the
right of a common law remedy, where the common law is competent to
give it; and shall also have exclusive original cognizance of all
seizures on land, or other waters than as aforesaid, made, and of all
suits for penalties and forfeitures incurred, under the laws of the
United States. And shall also have cognizance, concurrent with the
courts of the several States, or the circuit courts, as the case may
be, of all causes where an alien sues for a tort only in violation of
the law of nations or a treaty of the United States. And shall also
have cognizance, concurrent as last mentioned, of all suits at common
law where the United States sue, and the matter in dispute amounts,
exclusive of costs, to the sum or value of one hundred dollars. And
shall also have jurisdiction exclusively of the courts of the several
States, of all suits against consuls or vice-consuls, except for
offences above the description aforesaid. And the trial of issues in
fact, in the district courts, in all causes except civil causes of
admiralty and maritime jurisdiction, shall be by jury.
Section 10.
And be it further enacted, That the district court in Kentucky
district shall, besides the jurisdiction aforesaid, have jurisdiction
of all other causes, except of appeals and writs of error, hereinafter
made cognizable in a circuit court, and shall proceed therein in the
same manner as a circuit court, and writs of error and appeals shall
lie from decisions therein to the Supreme Court in the same causes, as
from a circuit court to the Supreme Court, and under the same
regulations. And the district court in Maine district shall, besides
the jurisdiction herein before granted, have jurisdiction of all
causes, except of appeals and writs of error herein after made
cognizable in a circuit court, and shall proceed therein in the same
manner as a circuit court: And writs of error shall lie from decisions
therein to the circuit court in the district of Massachusetts in the
same manner as from other district courts to their respective circuit
courts.
Section 11.
And be it further enacted, That the circuit courts shall have original
cognizance, concurrent with the courts of the several States, of all
suits of a civil nature at common law or in equity, where the matter
in dispute exceeds, exclusive of costs, the sum or value of five
hundred dollars, and the United States are plaintiffs, or petitioners;
or an alien is a party, or the suit is between a citizen of the State
where the suit is brought, and a citizen of another State. And shall
have exclusive cognizance of all crimes and offences cognizable under
the authority of the United States, except where this act otherwise
provides, or the laws of the United States shall otherwise direct, and
concurrent jurisdiction with the district courts of the crimes and
offences cognizable therein. But no person shall be arrested in one
district for trial in another, in any civil action before a circuit or
district court. And no civil suit shall be brought before either of
said courts against an inhabitant of the United States, by any
original process in any other district than that whereof he is an
inhabitant, or in which he shall be found at the time of serving the
writ, nor shall any district or circuit court have cognizance of any
suit to recover the contents of any promissory note or other chose in
action in favour of an assignee, unless a suit might have been
prosecuted in such court to recover the said contents if no assignment
had been made, except in cases of foreign bills of exchange. And the
circuit courts shall also have appellate jurisdiction from the
district courts under the regulations and restrictions herein after
provided.
Section 12.
And be it further enacted, That if a suit be commenced in any state
court against an alien, or by a citizen of the state in which the suit
is brought against a citizen of another state, and the matter in
dispute exceeds the aforesaid sum or value of five hundred dollars,
exclusive of costs, to be made to appear to the satisfaction of the
court; and the defendant shall, at the time of entering his appearance
in such state court, file a petition for the removal of the cause for
trial into the next circuit court, to be held in the district where
the suit is pending, or if in the district of Maine to the district
court next to be holden therein, or if in Kentucky district to the
district court next to be holden therein, and offer good and
sufficient surety for his entering in such court, on the first day of
its session, copies of said process against him, and also for his
there appearing and entering special bail in the cause, if special
bail was originally requisite therein, it shall then be the duty of
the state court to accept the surety, and proceed no further in the
cause, and any bail that may have been originally taken shall be
discharged, and the said copies being entered as aforesaid, in such
court of the United States, the cause shall there proceed in the same
manner as if it had been brought there by original process. And any
attachment of the goods or estate of the defendant by the original
process, shall hold the goods or estate so attached, to answer the
final judgment in the same manner as by the laws of such state they
would have been holden to answer final judgment, had it been rendered
by the court in which the suit commenced. And if in any action
commenced in a state court, the title of land be concerned, and the
parties are citizens of the same state, and the matter in dispute
exceeds the sum or value of five hundred dollars, exclusive of costs,
the sum or value being made to appear to the satisfaction of the
court, either party, before the trial, shall state to the court and
make affidavit if they require it, that he claims and shall rely upon
a right or title to the land, under a grant from a state other than
that in which the suit is pending, and produce the original grant or
an exemplification of it, except where the loss of public records
shall put it out of his power, and shall move that the adverse party
inform the court, whether he claims a right or title to the land under
a grant from the state in which the suit is pending; the said adverse
[party] shall give such information, or otherwise not be allowed to
plead such grant, or give it in evidence upon the trial, and if he
informs that he does claim under such grant, the party claiming under
the grant first mentioned may then, on motion, remove the cause for
trial to the next circuit court to be holden in such district, or if
in the district of Maine, to the court next to be holden therein; or
if in Kentucky district, to the district court next to be holden
therein; but if he is the defendant, shall do it under the same
regulations as in the before-mentioned case of the removal of a cause
into such court by an alien; and neither party removing the cause,
shall be allowed to plead or give evidence of any other title than
that by him stated as aforesaid, as the ground of his claim; and the
trial of issues in fact in the circuit courts shall, in all suits,
except those of equity, and of admiralty, and maritime jurisdiction,
be by jury.
Section 13.
And be it further enacted, That the Supreme Court shall have exclusive
jurisdiction of all controversies of a civil nature, where a state is
a party, except between a state and its citizens; and except also
between a state and citizens of other states, or aliens, in which
latter case it shall have original but not exclusive jurisdiction. And
shall have exclusively all such jurisdiction of suits or proceedings
against ambassadors, or other public ministers, or their domestics, or
domestic servants, as a court of law can have or exercise consistently
with the law of nations; and original, but not exclusive jurisdiction
of all suits brought by ambassadors, or other public ministers, or in
which a consul, or vice consul, shall be a party. And the trial of
issues in fact in the Supreme Court, in all actions at law against
citizens of the United States, shall be by jury. The Supreme Court
shall also have appellate jurisdiction from the circuit courts and
courts of the several states, in the cases herein after specially
provided for; and shall have power to issue writs of prohibition to
the district courts, when proceeding as courts of admiralty and
maritime jurisdiction, and writs of mandamus, in cases warranted by
the principles and usages of law, to any courts appointed, or persons
holding office, under the authority of the United States.
Section 14.
And be it further enacted, That all the before-mentioned courts of the
United States, shall have power to issue writs of scire facias, habeas
corpus, and all other writs not specially provided for by statute,
which may be necessary for the exercise of their respective
jurisdictions, and agreeable to the principles and usages of law. And
that either of the justices of the supreme court, as well as judges of
the district courts, shall have power to grant writs of habeas corpus
for the purpose of an inquiry into the cause of commitment.——Provided,
That writs of habeas corpus shall in no case extend to prisoners in
gaol, unless where they are in custody, under or by colour of the
authority of the United States, or are committed for trial before some
court of the same, or are necessary to be brought into court to
testify.
Section 15.
And be it further enacted, That all the said courts of the United
States, shall have power in the trial of actions at law, on motion and
due notice thereof being given, to require the parties to produce
books or writings in their possession or power, which contain evidence
pertinent to the issue, in cases and under circumstances where they
might be compelled to produce the same by the ordinary rules of
proceeding in chancery; and if a plaintiff shall fail to comply with
such order, to produce books or writings, it shall be lawful for the
courts respectively, on motion, to give the like judgment for the
defendant as in cases of nonsuit; and if a defendant shall fail to
comply with such order, to produce books or writings, it shall be
lawful for the courts respectively on motion as aforesaid, to give
judgment against him or her by default.
Section 16.
And be it further enacted, That suits in equity shall not be sustained
in either of the courts of the United States, in any case where plain,
adequate and complete remedy may be had at law.
Section 17.
And be it further enacted, That all the said courts of the United
States shall have power to grant new trials, in cases where there has
been a trial by jury for reasons for which new trials have usually
been granted in the courts of law; and shall have power to impose and
administer all necessary oaths or affirmations, and to punish by fine
or imprisonment, at the discretion of said courts, all contempts of
authority in any cause or hearing before the same; and to make and
establish all necessary rules for the orderly conducting business in
the said courts, provided such rules are not repugnant to the laws of
the United States.
Section 18.
And be it further enacted, That when in a circuit court, judgment upon
a verdict in a civil action shall be entered, execution may on motion
of either party, at the discretion of the court, and on such
conditions for the security of the adverse party as they may judge
proper, be stayed forty-two days from the time of entering judgment,
to give time to file in the clerk’s office of said court, a petition
for a new trial. And if such petition be there filed within said term
of forty-two days, with a certificate thereon from either of the
judges of such court, that he allows the same to be filed, which
certificate he may make or refuse at his discretion, execution shall
of course be further stayed to the next session of said court. And if
a new trial be granted, the former judgment shall be thereby rendered
void.
Section 19.
And be it further enacted, That it shall be the duty of circuit
courts, in causes in equity and of admiralty and maritime
jurisdiction, to cause the facts on which they found their sentence or
decree, fully to appear upon the record either from the pleadings and
decree itself, or a state of the case agreed by the parties, or their
counsel, or if they disagree by a stating of the case by the court.
Section 20.
And be it further enacted, That where in a circuit court, a plaintiff
in an action, originally brought there, or a petitioner in equity,
other than the United States, recovers less than the sum or value of
five hundred dollars, or a libellant, upon his own appeal, less than
the sum or value of three hundred dollars, he shall not be allowed,
but at the discretion of the court, may be adjudged to pay costs.
Section 21.
And be it further enacted, That from final decrees in a district court
in causes of admiralty and maritime jurisdiction, where the matter in
dispute exceeds the sum or value of three hundred dollars, exclusive
of costs, an appeal shall be allowed to the next circuit court, to be
held in such district. Provided nevertheless, That all such appeals
from final decrees as aforesaid, from the district court of Maine,
shall be made to the circuit court, next to be holden after each
appeal in the district of Massachusetts.
Section 22.
And be it further enacted, That final decrees and judgments in civil
actions in a district court, where the matter in dispute exceeds the
sum or value of fifty dollars, exclusive of costs, may be reexamined,
and reversed or affirmed in a circuit court, holden in the same
district, upon a writ of error, whereto shall be annexed and returned
therewith at the day and place therein mentioned, an authenticated
transcript of the record, an assignment of errors, and prayer for
reversal, with a citation to the adverse party, signed by the judge of
such district court, or a justice of the Supreme Court, the adverse
party having at least twenty days’ notice. And upon a like process,
may final judgments and decrees in civil actions, and suits in equity
in a circuit court, brought there by original process, or removed
there from courts of the several States, or removed there by appeal
from a district court where the matter in dispute exceeds the sum or
value of two thousand dollars, exclusive of costs, be re-examined and
reversed or affirmed in the Supreme Court, the citation being in such
case signed by a judge of such circuit court, or justice of the
Supreme Court, and the adverse party having at least thirty days’
notice. But there shall be no reversal in either court on such writ of
error for error in ruling any plea in abatement, other than a plea to
the jurisdiction of the court, or such plea to a petition or bill in
equity, as is in the nature of a demurrer, or for any error in
fact. And writs of error shall not be brought but within five years
after rendering or passing the judgment or decree complained of, or in
case the person entitled to such writ of error be an infant, feme
covert, non compos mentis, or imprisoned, then within five years as
aforesaid, exclusive of the time of such disability. And every justice
or judge signing a citation on any writ of error as aforesaid, shall
take good and sufficient security, that the plaintiff in error shall
prosecute his writ to effect, and answer all damages and costs if he
fail to make his plea good.
Section 23.
And be it further enacted, That a writ of error as aforesaid shall be
a supersedeas and stay execution in cases only where the writ of error
is served, by a copy thereof being lodged for the adverse party in the
clerk’s office where the record remains, within ten days, Sundays
exclusive, after rendering the judgment or passing the decree
complained of. Until the expiration of which term of ten days,
executions shall not issue in any case where a writ of error may be a
supersedeas; and whereupon such writ of error the Supreme or a circuit
court shall affirm a judgment or decree, they shall adjudge or decree
to the respondent in error just damages for his delay, and single or
double costs at their discretion.
Section 24.
And be it further enacted, That when a judgment or decree shall be
reversed in a circuit court, such court shall proceed to render such
judgment or pass such decree as the district court should have
rendered or passed; and the Supreme Court shall do the same on
reversals therein, except where the reversal is in favour of the
plaintiff, or petitioner in the original suit, and the damages to be
assessed, or matter to be decreed, are uncertain, in which case they
shall remand the cause for a final decision. And the Supreme Court
shall not issue execution in causes that are removed before them by
writs of error, but shall send a special mandate to the circuit court
to award execution thereupon.
Section 25.
And be it further enacted, That a final judgment or decree in any
suit, in the highest court of law or equity of a State in which a
decision in the suit could be had, where is drawn in question the
validity of a treaty or statute of, or an authority exercised under
the United States, and the decision is against their validity; or
where is drawn in question the validity of a statute of, or an
authority exercised under any State, on the ground of their being
repugnant to the constitution, treaties or laws of the United States,
and the decision is in favour of such their validity, or where is
drawn in question the construction of any clause of the constitution,
or of a treaty, or statute of, or commission held under the United
States, and the decision is against the title, right, privilege or
exemption specially set up or claimed by either party, under such
clause of the said Constitution, treaty, statute or commission, may be
re-examined and reversed or affirmed in the Supreme Court of the
United States upon a writ of error, the citation being signed by the
chief justice, or judge or chancellor of the court rendering or
passing the judgment or decree complained of, or by a justice of the
Supreme Court of the United States, in the same manner and under the
same regulations, and the writ shall have the same effect, as if the
judgment or decree complained of had been rendered or passed in a
circuit court, and the proceeding upon the reversal shall also be the
same, except that the Supreme Court, instead of remanding the cause
for a final decision as before provided, may at their discretion, if
the cause shall have been once remanded before, proceed to a final
decision of the same, and award execution. But no other error shall be
assigned or regarded as a ground of reversal in any such case as
aforesaid, than such as appears on the face of the record, and
immediately respects the before mentioned questions of validity or
construction of the said constitution, treaties, statutes,
commissions, or authorities in dispute.
Section 26.
And be it further enacted, That in all causes brought before either of
the courts of the United States to recover the forfeiture annexed to
any articles of agreement, covenant, bond, or other speciality, where
the forfeiture, breach or non-performance shall appear, by the default
or confession of the defendant, or upon demurrer, the court before
whom the action is, shall render judgment therein for the plaintiff to
recover so much as is due according to equity. And when the sum for
which judgment should be rendered is uncertain, the same shall, if
either of the parties request it, be assessed by a jury.
Section 27.
And be it further enacted, That a marshal shall be appointed in and
for each district for the term of four years, but shall be removable
from office at pleasure, whose duty it shall be to attend the district
and circuit courts when sitting therein, and also the Supreme Court in
the District in which that court shall sit. And to execute throughout
the district, all lawful precepts directed to him, and issued under
the authority of the United States, and he shall have power to command
all necessary assistance in the execution of his duty, and to appoint
as there shall be occasion, one or more deputies, who shall be
removable from office by the judge of the district court, or the
circuit court sitting within the district, at the pleasure of either;
and before he enters on the duties of his office, he shall become
bound for the faithful performance of the same, by himself and by his
deputies before the judge of the district court to the United States,
jointly and severally, with two good and sufficient sureties,
inhabitants and freeholders of such district, to be approved by the
district judge, in the sum of twenty thousand dollars, and shall take
before said judge, as shall also his deputies, before they enter on
the duties of their appointment, the following oath of office: "I,
A. B., do solemnly swear or affirm, that I will faithfully execute all
lawful precepts directed to the marshal of the district of
__________
under the authority of the United States, and true
returns make, and in all things well and truly, and without malice or
partiality, perform the duties of the office of marshal (or marshal’s
deputy, as the case may be) of the district of , during my continuance
in said office, and take only my lawful fees. So help me God."
Section 28.
And be it further enacted, That in all causes wherein the marshal or
his deputy shall be a party, the writs and precepts therein shall be
directed to such disinterested person as the court, or any justice or
judge thereof may appoint, and the person so appointed, is hereby
authorized to execute and return the same. And in case of the death of
any marshal, his deputy or deputies shall continue in office, unless
otherwise specially removed; and shall execute the same in the name of
the deceased, until another marshal shall be appointed and sworn: And
the defaults or misfeasances in office of such deputy or deputies in
the mean time, as well as before, shall be adjudged a breach of the
condition of the bond given, as before directed, by the marshal who
appointed them; and the executor or administrator of the deceased
marshal shall have like remedy for the defaults and misfeasances in
office of such deputy or deputies during such interval, as they would
be entitled to if the marshal had continued in life and in the
exercise of his said office, until his successor was appointed, and
sworn or affirmed: And every marshal or his deputy when removed from
office, or when the term for which the marshal is appointed shall
expire, shall have power notwithstanding to execute all such precepts
as may be in their hands respectively at the time of such removal or
expiration of office; and the marshal shall be held answerable for the
delivery to his successor of all prisoners which may be in his custody
at the time of his removal, or when the term for which he is appointed
shall expire, and for that purpose may retain such prisoners in his
custody until his successor shall be appointed and qualified as the
law directs.
Section 29.
And be it further enacted, That in cases punishable with death, the
trial shall be had in the county where the offence was committed, or
where that cannot be done without great inconvenience, twelve petit
jurors at least shall be summoned from thence. And jurors in all cases
to serve in the courts of the United States shall be designated by lot
or otherwise in each State respectively according to the mode of
forming juries therein now practised, so far as the laws of the same
shall render such designation practicable by the courts or marshals of
the United States; and the jurors shall have the same qualifications
as are requisite for jurors by the laws of the State of which they are
citizens, to serve in the highest courts of law of such State, and
shall be returned as there shall be occasion for them, from such parts
of the district from time to time as the court shall direct, so as
shall be most favourable to an impartial trial, and so as not to incur
an unnecessary expense, or unduly to burthen the citizens of any part
of the district with such services. And writs of venire facias when
directed by the court shall issue from the clerk’s office, and shall
be served and returned by the marshal in his proper person, or by his
deputy, or in case the marshal or his deputy is not an indifferent
person, or is interested in the event of the cause, by such fit person
as the court shall specially appoint for that purpose, to whom they
shall administer an oath or affirmation that he will truly and
impartially serve and return such writ. And when from challenges or
otherwise there shall not be a jury to determine any civil or criminal
cause, the marshal or his deputy shall, by order of the court where
such defect of jurors shall happen, return jurymen de talibus
circumstantibus sufficient to complete the pannel; and when the
marshal or his deputy are disqualified as aforesaid, jurors may be
returned by such disinterested person as the court shall appoint.
Section 30.
And be it further enacted, That the mode of proof by oral testimony
and examination of witnesses in open court shall be the same in all
the courts of the United States, as well in the trial of causes in
equity and of admiralty and maritime jurisdiction, as of actions at
common law. And when the testimony of any person shall be necessary in
any civil cause depending in any district in any court of the United
States, who shall live at a greater distance from the place of trial
than one hundred miles, or is bound on a voyage to sea, or is about to
go out of the United States, or out of such district, and to a greater
distance from the place of trial than as aforesaid, before the time of
trial, or is ancient or very infirm, the deposition of such person may
be taken de bene esse before any justice or judge of any of the courts
of the United States, or before any chancellor, justice or judge of a
supreme or superior court, mayor or chief magistrate of a city, or
judge of a county court or court of common pleas of any of the United
States, not being of counsel or attorney to either of the parties, or
interested in the event of the cause, provided that a notification
from the magistrate before whom the deposition is to be taken to the
adverse party, to be present at the taking of the same, and to put
interrogatories, if he think fit, be first made out and served on the
adverse party or his attorney as either may be nearest, if either is
within one hundred miles of the place of such caption, allowing time
for their attendance after notified, not less than at the rate of one
day, Sundays exclusive, for every twenty miles travel. And in causes
of admiralty and maritime jurisdiction, or other cases of seizure when
a libel shall be filed, in which an adverse party is not named, and
depositions of persons circumstanced as aforesaid shall be taken
before a claim be put in, the like notification as aforesaid shall be
given to the person having the agency or possession of the property
libelled at the time of the capture or seizure of the same, if known
to the libellant. And every person deposing as aforesaid shall be
carefully examined and cautioned, and sworn or affirmed to testify the
whole truth, and shall subscribe the testimony by him or her given
after the same shall be reduced to writing, which shall be done only
by the magistrate taking the deposition, or by the deponent in his
presence. And the depositions so taken shall be retained by such
magistrate until he deliver the same with his own hand into the court
for which they are taken, or shall , together with a certificate of
the reasons as aforesaid of their being taken, and of the notice if
any given to the adverse party, be by him the said magistrate sealed
up and directed to such court, and remain under his seal until opened
in court. And any person may be compelled to appear and depose as
aforesaid in the same manner as to appear and testify in court. And in
the trial of any cause of admiralty or maritime jurisdiction in a
district court, the decree in which may be appealed from, if either
party shall suggest to and satisfy the court that probably it will not
be in his power to produce the witnesses there testifying before the
circuit court should an appeal be had, and shall move that their
testimony be taken down in writing, it shall be so done by the clerk
of the court. And if an appeal be had, such testimony may be used on
the trial of the same, if it shall appear to the satisfaction of the
court which shall try the appeal, that the witnesses are then dead or
gone out of the United States, or to a greater distance than as
aforesaid from the place where the court is sitting, or that by reason
of age, sickness, bodily infirmity or imprisonment, they are unable to
travel and appear at court, but not otherwise. And unless the same
shall be made to appear on the trial of any cause, with respect to
witnesses whose depositions may have been taken therein, such
depositions shall not be admitted or used in the cause. Provided, That
nothing herein shall be construed to prevent any court of the United
States from granting a dedimus potestatem to take depositions
according to common usage, when it may be necessary to prevent a
failure or delay of justice, which power they shall severally possess,
nor to extend to depositions taken in perpetuam rei memoriam, which if
they relate to matters that may be cognizable in any court of the
United States, a circuit court on application thereto made as a court
of equity, may, according to the usages in chancery direct to be
taken.
Section 31.
And be it [further] enacted, That where any suit shall be depending in
any court of the United States, and either of the parties shall die
before final judgment, the executor or administrator of such deceased
party who was plaintiff, petitioner, or defendant, in case the cause
of action doth by law survive, shall have full power to prosecute or
defend any such suit or action until final judgment; and the defendant
or defendants are hereby obliged to answer thereto accordingly; and
the court before whom such cause may be depending, is hereby empowered
and directed to hear and determine the same, and to render judgment
for or against the executor or administrator, as the case may
require. And if such executor or administrator having been duly served
with a scire facias from the office of the clerk of the court where
such suit is depending, twenty days beforehand, shall neglect or
refuse to become a party to the suit, the court may render judgment
against the estate of the deceased party, in the same manner as if the
executor or administrator had voluntarily made himself a party to the
suit. And the executor or administrator who shall become a party as
aforesaid, shall, upon motion to the court where the suit is
depending, be entitled to a continuance of the same until the next
term of the said court. And if there be two or more plaintiffs or
defendants, and one or more of them shall die, if the cause of action
shall survive to the surviving plaintiff or plaintiffs, or against the
surviving defendant or defendants, the writ or action shall not be
thereby abated; but such death being suggested upon the record, the
action shall proceed at the suit of the surviving plaintiff or
plaintiffs against the surviving defendant or defendants.
Section 32.
And be it further enacted, That no summons, writ, declaration, return,
process, judgment, or other proceedings in civil causes in any of the
courts of the United States, shall be abated, arrested, quashed or
reversed, for any defect or want of form, but the said courts
respectively shall proceed and give judgment according as the right of
the cause and matter in law shall appear unto them, without regarding
any imperfections, defects, or want of form in such writ, declaration,
or other pleading, return, process, judgment, or course of proceeding
whatsoever, except those only in cases of demurrer, which the party
demurring shall specially sit down and express together with his
demurrer as the cause thereof. And the said courts respectively shall
and may, by virtue of this act, from time to time, amend all and every
such imperfections, defects and wants of form, other than those only
which the party demurring shall express as aforesaid, and may at any
time permit either of the parties to amend any defect in the process
or pleadings, upon such conditions as the said courts respectively
shall in their discretion, and by their rules prescribe.
Section 33.
And be it further enacted, That for any crime or offence against the
United States, the offender may, by any justice or judge of the United
States, or by any justice of the peace, or other magistrate of any of
the United States where he may be found agreeably to the usual mode of
process against offenders in such state, and at the expense of the
United States, be arrested, and imprisoned or bailed, as the case may
be, for trial before such court of the United States as by this act
has cognizance of the offence. And copies of the process shall be
returned as speedily as may be into the clerk’s office of such court,
together with the recognizances of the witnesses for their appearance
to testify in the case; which recognizances the magistrate before whom
the examination shall be, may require on pain of imprisonment. And if
such commitment of the offender, or the witnesses shall be in a
district other than that in which the offence is to be tried, it shall
be the duty of the judge of that district where the delinquent is
imprisoned, seasonably to issue, and of the marshal of the same
district to execute, a warrant for the removal of the offender, and
the witnesses, or either of them, as the case may be, to the district
in which the trial is to be had. And upon all arrests in criminal
cases, bail shall be admitted, except where the punishment may be
death, in which cases it shall not be admitted but by the supreme or a
circuit court, or by a justice of the supreme court, or a judge of a
district court, who shall exercise their discretion therein, regarding
the nature and circumstances of the offence, and of the evidence, and
the usages of law. And if a person committed by a justice of the
supreme or a judge of a district court for an offence not punishable
with death, shall afterwards procure bail, and there be no judge of
the United States in the district to take the same, it may be taken by
any judge of the supreme or superior court of law of such state.
Section 34.
And be it further enacted, That the laws of the several states, except
where the constitution, treaties or statutes of the United States
shall otherwise require or provide, shall be regarded as rules of
decision in trials at common law in the courts of the United States in
cases where they apply.
Section 35.
And be it further enacted, That in all courts of the United States,
the parties may plead and manage their own causes personally or by
assistance of such counsel or attorneys at law as by the rules of the
said courts respectively shall be permitted to manage and conduct
causes therein. And there shall be appointed in each district a meet
person learned in the law to act as attorney for the United States in
such district, who shall be sworn or affirmed to the faithful
execution of his office, whose duty it shall be to prosecute in such
district all delinquents for crimes and offences, cognizable under the
authority of the United States, and all civil actions in which the
United States shall be concerned, except before the supreme court in
the district in which that court shall be holden. And he shall receive
as compensation for his services such fees as shall be taxed therefor
in the respective courts before which the suits or prosecutions shall
be. And there shall also be appointed a meet person, learned in the
law, to act as attorney-general for the United States, who shall be
sworn or affirmed to a faithful execution of his office; whose duty it
shall be to prosecute and conduct all suits in the Supreme Court in
which the United States shall be concerned, and to give his advice and
opinion upon questions of law when required by the President of the
United States, or when requested by the heads of any of the
departments, touching any matters that may concern their departments,
and shall receive such compensation for his services as shall by law
be provided.
APPROVED , September 24, 1789.
Source:
U.S. Statutes at Large
1
September 24, 1789
73
http://air.fjc.gov/history/landmark/02b.html
