FIRST REPORT 
 
 OF THE ATTORNEY GENERAL 
 
 OF THE UNITED STATES 
 
 PHILADELPHIA, 1791 
 
 CHILDS AND SWAINE
 
 REPORT 
 
 O F T H E 
 
 ATTORNEY-GENERAL. 
 
 READ IN THE 
 
 HOUSE OF REPRESENTATIVES, 
 
 DECEMBER 31, 1790.
 
 Philadelphia, December 27, 1790-. 
 
 S I R, 
 
 THE Order of the Houfe of Reprefentati'ves^ re(^uiring me to report on 
 the Judiciary System of the United States, has prefcrihed a tajk of no common 
 difficulty, 
 
 1 doubt whether anyone 7nan could anfwer for the accuracy offuch a work; and 
 tvenfor more than one, a greater portion of time would be neceffary^ to infurepre- 
 cijion, than the interval between the lajl and prefent fejjion. 
 
 But ihefe are not my only embarrajfmenis. I am called upon to revife a plan ap*- 
 proved by legiflative wifdom ; and although I have examined it with a deference 
 moji refpe^fid and ftncere, yet have I been compelled to quefiion the Jitnefs offomeof 
 its leading features. 
 
 Ifubmit, therefore, to the candor and indulgence of the Houfe, the enclofed Report. 
 Thefrfi part contains an enumeration of what I conceive to be the principal defeds. 
 Thofe of the fmaller kind would have been treated in the fame form, but for the 
 opportunity, which a bill affords, to avoid too much minutenefs of comment, and to 
 exprefs my ideas more definitely, 
 
 A bill is prepared in the fecond part, in which a large Jhare of the former matter 
 is preferved. But the language and arrangement of the judicial law have not been 
 implicitly purfued ; // being almofi impraElicable to incorporate the propofed amend- 
 ments by referrences to pages and lines. Where the changes or additions are ejfential^ 
 I have endeavored tojufiify them by explanatory remarks. 
 
 After all, however, I am perfuaded that time and pra^ice can alone mature the 
 judicial fyjiem. If in this attempt to put it into the train of improvement, I have 
 maintained errors in dodrine, it is a conflation to me to reflect, that my opinions 
 have nothing of authority in thenu 
 
 I have the honor. Sir, to be. 
 
 With the higheft refpeB, 
 
 Tour moJi obedient fervant, 
 
 ^a/mand tzn^anaolfiri. 
 The Speaker of the Houfe of Reprefentatives.
 
 REPORT 
 
 OF THE 
 
 ATTORNEY-GENERAL 
 
 TO THE 
 
 HOUSE OF REPRESENTATIVES. 
 
 THE ATTORNEY-GENERAL, to whom were referred by the Or<ier of 
 the House o/" Representatives, ^^ fuch Mitten relative tothe Adminijlra- 
 ^^ Hon of J ufiice under the Authority of the United States, as may require 
 " to be remedied, andfuch Proviftons in the refpedive Cafes, a: hcfJoould deem 
 " advifable*^ in obedience thereto makes the following 
 
 REPORT. 
 
 I. 'TPHE firft obje^ of this duty is to fuggefl: any defeds exilling in the 
 X judiciary fyftem. 
 
 The Courts of the United States demand an organization, of which we 
 have no appofite example in the hiftory of foreign jurifprudence ; and our 
 own fcheme has not received the full light of experience. The following 
 obfervations muft therefore depend for their chief fupport, on reafoning, un- 
 accompanied by precedent. 
 
 From which of the judicial powers enumerated in the Conilitution, the i r- i r r 
 
 FL t_ • L r 11 1 J J ■ • 1-1 1 1. Exclufion of 
 
 itate courts maybe rightrully excluded, is an enquiry, to which an early part natecouits. 
 of the judiciary law gives birth. 
 
 The aggregate of thefe powers relate — 
 
 1. To cafes arifing in law or equity under the Conftitution. 
 
 2. Under the laws of the United States. 
 
 3. Under treaties made, or to be made, by their authority. 
 
 4. To cafes affecting ambafladors, other public miniflers, and confuls. 
 
 5. To cafesof admiralty and maritime jurifdidion. 
 
 6. To controverfies to which the United States fhallbe a party. 
 
 7. To controverfies between a ftate and citizens of another ftate. 
 
 8. To controverfies between citizens of different ftates. 
 
 9. To controverfies betw een citizens of the fame ftate, claiming lands un- 
 
 der grants of different ftates : And, 
 
 10. To controverfies between a ftate or the citizens thereof, and foreign 
 
 ftates, citizens or fubjeds. 
 Of thefe ten claffes of jurifdiction, fome arevefted in the federal, concur- 
 rently with the ftate tribunals ; oth^ers in the federal, exclufively of the ftate 
 tribunals. 
 
 B
 
 C 4 J 
 
 It is not cxprefsly forbidden to the flates to aflume the cognizance of any one 
 or all of them. For the judicial power of the United States is only to extend 
 to the recited cafes : And to extend the authority of one court to a defcription 
 of perfons or things, which fliould of courfe be embraced by another, had no 
 fuch exteniion been made, cannot of itfelf deprive that other of its pre-exift- 
 ing rights. 
 
 T\it nature however, offome of thefe fubjeiSls, fhuts out the jurifdi£lion of 
 the ftate courts, as fuch, on the vital principles of the Union. 
 
 I. The firft among thefe are cafes of admiralty and maritime jurifdidlion ; 
 terms, which, when thus applied, are nearly fynonimous. They bear a tech- 
 nical meaning, well known throughout the United States, and uniform; being 
 expreffive ot courts, copied from the fame original. It belongs to them to 
 decide all caufes, arifing wholly on the fea, and not within the precin£l^ of 
 any county, and to condemn all lawful prizes, in time of war. 
 
 (<3) The open fea is a great high-way to all mankind, who have not furren- 
 dered by an acquiefcence or a pofitive aft, the privilege of navigating particu- 
 lar parts of it. In general, every nation ranks the cognizance of caufes, 
 wholly arifmg there, among the attributes of independence ; and to none is it 
 denied, where the litigants, or the litigated property is within its territory. If 
 therefore it werefuppofed, that anyone of the now United States had never 
 entered into the Union, to it would this prerogative have appertained. But 
 being a party to the federal compaft, each ftate has refigned it to the federal 
 government. It has been thus refigned ; 
 
 1. Becaufe that government only, as polfefTmg the rights of remonftrance, 
 marque, reprifal and war, can proteft the citizens of the United States from 
 hoftihties, in their daily intercourfe with rival adventurers on that element. 
 
 2. Becaufe a concurrence of jurifdiftion might either involve the confede- 
 racy in war, contrary to its will, or fubjeft it to a grievous reparation of lome 
 injury. 
 
 3. Becaufe the power given to Congrefs by the Conftitutlon, to define and 
 punifh piracies and felonies on the high feas, and offences againft the law of 
 nations, comprehends the whole of criminal fea law, and warrants that body 
 to affign to the federal courts alone an exclufive jurifdiftion therein : And, 
 
 Laftly. 4. Becaufe under the foregoing powers, and the power of Congrefs 
 to regulate commerce, and to make rules concerning captures on water, the 
 pure marine law, properly fo called, can be difpenfed by thofe courts only 
 which derive an authority over it from the United States. 
 
 (Ji) For the fame reafon is the cognizance of prizes in time of war lodged 
 in the federal courts exclufively. But it is not pretended from hence that the 
 United States are abfolved from the obligation of neutrality. 
 
 (c) Two other denominations of cafes have been added to the admiralty 
 and maritime courts ; to wit — offences on water againft the revenue laws, and 
 claims for fpecific fatisfaftion on the body of a velfcl, as for mariners* wa- 
 ges, &c. But neither of thefe is of neceffity appropriated to the admiralty. 
 It is true that a jurifdiftion over the former muft be deduced from Congrefs, 
 and that they will doubtlefs depofit it in their own tribunals \ and moft proba- 
 bly in the admiralty. In the latter, the ftate legiflatures may eftablifh a ju- 
 rifdiftion reaching the veffel itfelf. 
 
 2. If the United States, as far as they can be a party defendant, ihould 
 happen to be To, their own courts can alone judge them. To drag a confede- 
 rate before the courts of one of its members, would reverfe the plain dic- 
 tates of order ; hazard the mpft critical interefts of the union upon the plea- 
 fureof a fingle ftate ; and enable every individual ftate under the pretext of 
 a forenfic fentence, to arrogate the general fovereignty. 
 
 3. In like manner, as far as a particular ftate can be a party defendant, a 
 fifter ftate cannot be her judge. Were the ftafes of America unconfederated.
 
 [ 5 ] 
 
 they would be as free from mutual controul as other disjointed nations. Nor 
 does the federal compacl narrow this exemption ; but confirms it, by efta- 
 biifhing a common arbiter in the federal judiciary, whofe conftitutionai au- 
 thority may adminirter redrefs. 
 
 It delerves however to be remarked in this place, that thefe ideas are not 
 inconfiltent with the right of the ftates fepv>rate!y, or of the United States 
 colledtively, to refort to the (late courts ii plaintiff's ; nor yet with the ri^ht 
 ot the Itates feparately to open their own courts for fuits againfl themfelves. 
 
 4. In difputes arillng upon the grants of land by different flates, the con- 
 teft mull turn upon one of two queltions -, in which , ftate the land lies; or 
 whether lands, confelfedly within one Hate, may not, by virtue of fome ad, 
 be claimed by the grantee of another. It would be the extreme of prefump- 
 tion for a filler flate to affc£l; a jurifdidion in this cafe : and more efp'ecially 
 ought the granting and claiming Hates to keep aloof from the decifion, it being 
 the caufe of both. 
 
 5. If crimes and offences be punifhable by that authority alone, againft 
 which they are committed ; thofe created by the Confticution, or by Con- 
 grefs, refult to the federal judiciary only. If on the other hand it were allow- 
 ed, that Congreis might transfer the cognizance of thefe cafes to the flate 
 courts, until that transfer it cannot be theirs. 
 
 6. Rights too created by Congrefs, may have a fpecial rem.edy given to 
 ihem in the federal courts ; and to them ought therefore to be reflrided. 
 
 We are then led to conclude, that the judiciary of the United States have 
 exclufive jurifdidion in the following cafes. 
 
 1. In thofe of flricl admiralty and maritime jurifdiflion. 
 
 2. Where the United States are a party defendant. 
 
 3. Where a particular (late is a party defendant. 
 
 4. Where lands are claimed under grants of different flates. 
 
 5. In treafon, as defcribed by the conflitution, and other crimes and of- 
 
 fences created by the laws of the United States, but not configned 
 *o the (late tribunals. 
 
 6. In rights created by a law of the United States, and having a fpecial 
 
 remedy given to them in the federal courts. 
 In all the other cafes, to which the judicial power of the United States extends^ 
 a concurrent jurifdidion is prefumed ; provided they be not mingled with 
 others coming within any of the fix foregoing defcriptions. By this fland- 
 ard, which, if found, may by its adoption maintain the harmony of the federal 
 and flate judiciaries, the Attorney-General has tried the jurifdidions, marked 
 out by law. But with a reludance and diflrufl of his own judgment, which 
 nothing lefs than a fenfe of duty could overcome, he begs leave to aflv, 
 
 1. How far the ftate courts ought to be prohibited, as they now are from cj^.^ ^^ 
 a jurifdidion in fuits againd confuls or vice-confuls, as fuch, or againfl a 
 
 ftate, fued with its own permifTion, in its own courts, or in fuits where a (late 
 is plaintiff ? And, 
 
 2. Whether the reflridions on the (late courts ought not to be increafed, fo 
 as to bind all the fix cafes above mentioned ? 
 
 On a farther profecution of the cafes acknowledged to be of concurrent jurif. jj Re-exami- 
 didion, it appears, that a writ of error may iffue from the fupreme court of nation of ftate 
 the United States to a final judgment or decree rendered in any fuit by the ^^^^f^"- 
 highefl flate court of law or equity, in the nine following cafes : Sec 25. 
 
 Where is drawn in queflion, 
 
 1. The validity of^a treaty of the United States ; ^ and the decifi- 
 
 2. Or of a ftatute of the United States ; > on is againfl 
 
 3. Or of an authority exercifed under the United States : 3 their validity.
 
 ' [ 6 ] 
 
 Or where Is drawn in quedlon, 
 
 1. The validity of a Itatute of any ftate on the ground "\ 
 
 of being repugnant to the Conftitution, treaties, /and the decifion 
 or laws of the United States ; >is in favor of fuch 
 
 2. Or of an authority exercifed under any ftate upon V their validity. 
 
 like grounds : j 
 
 Or where is drawn in queftion, 
 
 1 . The confi:ru£tion of any claufe of the'^and the decifion is againft the 
 
 Conftitution of the United States ;# title, right, privilege or exemp- 
 
 2. Or of a treaty of the United States ; V tion, fpecially fet up, or claim- 
 
 3. Or of a ftatuteoft"he United States ;/^ed by either party under fuch 
 
 4. Or of a commiflion held under the \ claufe of the faid Conftitution, 
 
 United States : • -^treaty, ftatute, or commiflion. 
 
 That the avenue to the federal courts ought, in thefe inftances, to be un- 
 obftrufted is manifeft. But in what ftagc, and by what form fFiall their 
 interpofiticn be prayed ? There are perhaps but two modes ; one of which is 
 to convert the fupreme court of the United States into an appellate tribunal 
 over the fupreme courts of the feveral ftates ; the oiher to permit a removal by 
 certiorari before trial. 
 
 The Attorney-General will not decide how far the arguments of thofe, who 
 do not aifent to the firft, merit attention. But he is conftrained to lay them 
 before the Iloufe. 
 
 It has been conceded, that when the Conftitution delegates to the fupreme 
 court " appellate jurifdidion^*^ it ufes a very broad exprellion ; which, if un- 
 derllood in its literal latitude, tolerates the firft expedient. But on the other 
 hand it has been afferted, 
 
 1. That this phrafe muft be preffed clofe to the matter of the third article 
 of the Conftitution, which is (he judicial power of the United States^ without 
 blending ftate courts. 
 
 2. That this fpecies of conftruclion is not unfrequent ; nay, in another 
 part of the article it is drawn into adion. For without it, the diredion, that all 
 crimes, except in cafes of impeachment, ftiall be tried by a jury, might intrude 
 farther into the police of a ftate, than has been c\'er yet contended. 
 
 3. lliat as the ftate courts did not rely for their concurrent jurifdidion up- 
 on any ceftion in the Conftitution, the fpecial provifton, that the fupreme court 
 ftiould have or/g^w^/jurifdidtion in four cafes, was defigned to prevent the in- 
 ferior courts of the United States from having the fole original jurifdiftion in 
 thofe cafes : and that original and appellate being correlative in their fignifica- 
 tion, the Jatter muft ailfo befpeak fome relation between the fupreme and infe- 
 rior courts of the United States alone. 
 
 4. That in cafes of admiralty and maritime jurifdidon, and fome others, 
 with which a ftate cannot intermeddle, the appellate jurifdi£lion muft operate 
 on the decrees of the inferior federal courts only : and that the interpretation 
 r)f one paftage in the article, being thus far clear, furnifties a key by which to 
 expound the others : And, 
 
 5. That a concurrence of jurifdidion fo ftrongly implies coequality, that 
 nothing ought to arraign it, except a very explicit declaration, or at leaft a vio- 
 lent necefliiy to the contrary. 
 
 But let thefe arguments be pafted over without further notice. 
 
 Does juftice intitle the plaintiff" to the firft mode ? When he indltutes his 
 fult, he has the choice of the ftate and federal courts. He eleds the former,and 
 to that eledion he ought to adhere. 
 
 Does juftice intitle a defendant to it ? Certainly not ; Ihould he be free to 
 vithdraw the caufe by a certiorari at any time before trial, from the ftate 
 court. For if with this privilege he proceeds without a murmur through the
 
 [ 7 ] 
 
 whole length of the ftate courts, ought he to catch a new chance from the fede- 
 ral courts? Have not both plaintiff and defendant thus acquiefcing, virtually 
 chofen their own judges ? 
 
 Again. Let fuppofition itfelf be tortured : let the highefl: (late courts, al- 
 though fworn to lupport the Conftitution, invalidate a treaty, a flatute or 
 an authority of the United States. 
 
 1. Such a decree could not invalidate them, nor impair the right of the 
 lowed federal court to ratify them. 
 
 2. It WOUI4 not difturb the tranquility of the United States. For if even 
 aliens were the parties, the remonftrances of their prince might be repelled by 
 {hewing that they favored the ftate jurifdidlion, by waiving the privilege of 
 going into the federal courts. 
 
 3. Nor yet would the honor of the United States be fullied. For if it 
 has not occurred, it may be conceived, that courts, whofe jurifdidion is ftrait- 
 ened in value, but whole decrees up to that value are final, may be refrattory 
 againft a law, without diminifhing the real dignity of government. Judicial 
 uniformity is furely a public good, but its price may be too great if it can be 
 purchafed only by cherifhing a power, which to fay no more, cannot be incon- 
 teftibly proved. 
 
 4. At any rate, unlefs a party fiiall forfake the ordinary maxims of pru- 
 dence, the hoflility of the fupreme (late courts (if hoflility be polTible) will be 
 difplayed but once. For the remembrance of an adverfe.decifion or an, ad- 
 verfe temper in thofe courts, will inevitably proclaim the federal courts as the 
 afylum to federal interefts. 
 
 From thefe confiderations, the fecond mode by certiorari is perhaps eHgi- 
 ble. But it may be faid, that even this procefs argues fomething more than 
 a concurrence of jurifdiftion in the federal courts ; and that if it be improper 
 to tie a defendant to a ftate court againft his will, it is equally fo to force a 
 plaintiff to a federal court againft his will. To this let it be anfwered, 
 
 1. That the judicial power of the United States was eftablifhed to prevent 
 fuitors in certain cafes from being obliged to fubmit entirely to the ftate 
 courts ; and that a material objedion to the re-examination of a final decree, 
 is founded upon both parties, voluntarily and cheerfully devoting themfelves 
 to the ftate courts : And 
 
 2. That a concurrent jurifdidion would be a heavy oppreflion to a defen- 
 dant, if he cannot depart from a ftate court, while theplaintift'may arrefthim 
 by a ftate or federal writ. 
 
 A third alteration, which the Attorney-General cannot forbear to fuggeft, m, judges of 
 is, that the judges of th€ fupreme court ftiall ceafe to be judges of the circuit the fupreme 
 courts. 'T.ITflh. 
 
 . r judges ot ine 
 
 It is obvious that the inferior courts ought to be diftind bodies from the fu- circuit courts, 
 preme courts. But how far it may confound thefe two fpecies of courts, to 
 fuffcr the judges of the fupreme to hold feats on the circuit bench, he declines 
 the difcuflion, and circumfcribes his refledtions within the pale of expediency 
 only. 
 
 I. Thofe who pronounce the law of the land without appeal, ought to be 
 pre-eminent in mofl endowments of the mind. Survey the fundlions of a judge 
 of the fupreme court. He muft be a mafter of the common law in all its divi- 
 fions, a chancellor, a civilian, a federal jurift, and fkilled in the laws of each 
 ftate. To exped that in future times this affemblage of talents will be ready, 
 without farther ftudy, for the national fervice, is to confide too largely in 
 the public fortune. Moft vacancies on the bench will be fupplicd by profef- 
 fional men, who perhaps have been too much animated by the contentions of 
 the bar, deliberately to expljore this extenfive range of Icience. In a great mea- 
 
 C
 
 C 8 ] 
 
 fure then, the fupreme judges will form themfelves after their nomination. 
 But what leifure remains from their itinerant difpenfation of juilice ? Sum up 
 all the fragments of their time, hold their fatigue at naught, and let them bid 
 adieu to all domeftic concerns, ftill the average term of a Hfe, already advanced, 
 will be too (hort for any important proficiency. 
 
 2. The detaching of the judges to different circuits, defeats the benefit of 
 an nnprejudiced confultation. The delivery of a folemn opinion in court, com- 
 mits them ; and fliould a judgment rendered by two, be erroneous, will they 
 meet their four brethren unbialfed ? May not human nature, thus trammelled, 
 ftruggle too long againft conviftion ? And how few would ered a monument 
 to their candor, at the expenfe of their reputation for firmnefs and difcernment ? 
 
 3. Jealoufy among the members of a court is always an evil ; and its ma- 
 lignity would be double, fhould it creep into the fupreme court, obfcure the 
 difcovery of right, and weaken that refpeft which the public welfare feeks for 
 their decrees. But this cannot be affirmed to be beyond the compafs of events 
 to men agitated by the conftant fcanningof the judicial conduft of each other. 
 
 If this fhould not happen, there is frefh danger on the other fide ; left they 
 /hould be reftrained by delicacy and mutual tendernefs, from probing without 
 fcruple, what had been done in the circuit courts. A fchifm of fentiment be- 
 fore a decifion and after a free conference, is not efteemed harfh ; but it is 
 very painful to undertake to fatisfy another, that in a public opinion already 
 uttered, he has been in the wrong. 
 
 4. Situated as the United States are, many of the mofl weighty judiciary 
 queflions will be perfedly novel. Thefe mufl be hurried off on the circuits, 
 where neceffary books are not to be had ; or relinquifhed for argument before 
 the next fet of judges, who on their part may want books, and a calmer feafon 
 for thought. So that a caufe may be fufpended until every judge fhall have 
 heard it. 
 
 5. To this feparation of the fupreme judges from the circuit fervice, fome 
 objections may be anticipated. 
 
 It may be urged, 
 
 I. That it will tend to imprefs the citizens of the United States favorably 
 tovi'ards the general government, fhould the mofl diftinguifhed judges vifit 
 every ftate : And, 
 
 1. That in one county, affizes are held with applaufe, by the very men who 
 afterwards fit colledively, to review what may havobeen there tranfacled, and 
 who are alfo confulted in the dernier refort. 
 
 1. The firft objeftion is too vague. In its extent, it impugns all fubordi- 
 nate departments v/hatever ; and ought therefore to be regarded no otherwife, 
 than as it may be unoppofed by inconveniencies. Let it then be inquired, it 
 none of the preceding do oppofe. 
 
 Again : Will not the judges of the circuit courts be adequate to their Na- 
 tions ? 
 
 The fi.iprcme judges themfelves who ride the circuits, will (if indeed fuch a 
 circumllance can be of much avail) be foon graduated in the public mind, in 
 relation to the circuits ; will foon be confidcred as circuit judges, and will not 
 be often appreciated as fupreme judges. When a difcomfited party looks up 
 to the highed tribunal for redrefs, he is told by the report of the world that in 
 it every quality is centered neceffary tojuftice. But how would his fanguine 
 hopes be fruflrated, if among fix judges, two are moft probably to repeat their 
 former luifrages, or to vindicate them wirh firenuous ability ; or if to avoid 
 this, the wifdom of a third of the number mufl be laid afide ? 
 
 2. The alfize fcheme v.ill not be confronted by any impeachment of its me- 
 rit ; on the contrary, its merit is admitted, although perhaps it cannot fafely be
 
 [ 9 ] 
 
 the ground workofour reafoning on the judiciary of the United States, until we 
 are allured that we have penetrated all the arcana of its operations. But there 
 is a court of final jurifdidtion, which by being ready to corred, incefiantly ad- 
 monifhes all the fubordinate courts to be circumfpecl. Equity itfelf too, being 
 in different hands from the common law, is watchful over every departure 
 from what is right. 
 
 When the judges of aflize aflift with their counfels in the lafl refort, they 
 are not authoritative. Such of them as are members of the body, are fo fmall 
 in number, as to be compelled to rely on the flrength and folidity of their 
 judgments only, inflead of their influence. Befides, the judges are inroHed 
 in diftinct corps ; and this alone would be a kind of hoftage for exertions in 
 behalf of truth. 
 
 Where then is the fimilitude to the fupreme court of the United States? 
 
 Should the judges of the fupreme court become ftationary, they will be able iv. Rcpom, 
 to execute reports of their own decifions, and thus promote uniformity 
 through the whole judiciary of the United States. 
 
 Reports may be traced up to a venerable antiquity. In England they were 
 compofed for centuries by prothonotaries of the court, at the charges of the 
 crown : And ever fmce the patronage of government has retired, their utility 
 has been univerfally avowed. In our own country too, labors like thefe have 
 diftufed a knowledge of the laws of particular Itates. And how valuable in 
 point of authenticity and inftrudion, mud reports be, from the fupreme court? 
 
 But thefe are not the only advantages: 
 
 They announce the talents of the judges. 
 
 If the judge, whofe reputation has raifed him to oflice, fhall be in the habit of 
 delivering feeble opinions, thefe reports will firft excite furprife, and after- 
 wards a fufpicion, which will terminate in a vigilance over his aftions. 
 
 In a word, when by means of thefe reports, the fenfe of the fupreme court fhall 
 be afcertained and followed in the inferior tribunals, much time and money will 
 be laved to diffatisfied fuitors, who might otherwife appeal. 
 
 A diverfity of opinion has prevailed on the forms and modes, to be obferved y proceedings 
 in caufes of equity and of admiralty and maritime jurifdidion : Whether they of equity and 
 are to be according^ to the mere civil law, unqualified by the ufages of iiny mo- ^'^™'^i'y ^c- 
 
 j ,. ii«.-i * •' ° ^ cordinor to the 
 
 dern nation, or under limitations r civil law. 
 
 If the untempered feverity of the Roman law is to predominate, the rights of 
 property, and of perfonal liberty, are in jeopardy: Without exhibiting a tedious 
 lift of what are termed the fubftantial and accidental parts of a civil caufe, 
 let a few of the moft obnoxious forms of the civil law be feleded. 
 
 1. In fcarcely any cafe, unlefs in that of a ne-exeat, is an arreft upon cita- 
 tion or fubpoena, at the firft inftitution of a chancery fuit known in the United 
 States. In the civil law it is otherwife. 
 
 2. One mode of executing a fentence is by putting the plaintiffinto pof- 
 felTion of all the defendant's eftate, in order that he may pay himfelf : and the 
 fame may be the punilhment of contumacy. 
 
 3. It is. true that by pradlice a fequelfration has grown ifito a chancery-pro- 
 cefs in the laft ftage of contempt. But by the civil law, the property in debate 
 may be wrefted from its polVeiVor, when he has been guilty of no contempt, 
 and may continue with the fequeftrator, be the fuit depending for any number 
 of years whatfbever. 
 
 4. To what a height of infult and delay may not a dilatory exception to a 
 judge be carr' "td? 
 
 5. The oaths have not Icfs fmgularity in them.
 
 [ 10 ] 
 
 The fuppletory oath is given by the judge to the plaintiff or defendant upon 
 half proof being already made; which beingjoined with the half proof fupplies 
 a fufficient quantum of proof. 
 
 The decifive oath is, where one of the litigants not being able to prove his 
 accufation, offers to fland or fall by the oath of his adverfary ; ^nd the adverfary 
 is bound to accept it, or make the fame propofal back again, under, the penalty 
 of condemnation. 
 
 The oath of calumny, is, where the plaintiff or defemlant is required tofwear, 
 that he believes himfelf to be engaged in a j.uft caufe. 
 
 To thefe fpecimens, others might be added, equally exceptionable. But 
 as they indicate the general fpirit of the civil law, in its forms and modes, 
 limitations of them ought to be fearched for. 
 
 It cannot be denied, that the nation, whofe jurifprudence is the fource 
 
 of our own, prefents the bed limitations ; and that they ought to be adopted, 
 
 until better (hall be devifed. And better may certainly be prepared und^ 
 
 the aufpices of Congrefs. 
 
 VI One place Congrefs evinced their anxiety that the adminiftration of juftice fhould be as 
 
 foi holding the convenient as poflible, to the citizens of the United States, when they allotted 
 
 cifcilii couns. alternate places for the feffions of the diftritt and circuit courts. Although it 
 
 may be doubted, whether it would not be more agreeable to the public to be 
 
 fummoned to fome central fpot, yet to reduce thefe places to one in each di- 
 
 llrift, without cogent reafons, might awaken difcontent. But fuch a rifque 
 
 may be encountered with fafety, as it is defended by, a fair predi6lion of the 
 
 raifchiefs which await the old plan. 
 
 1. Either the records, or copies of them, muff travel with the courts. By 
 the former ftep they would be always liable ro lofs or injury ; by the latter, the 
 expenfe to clients would be greatly ►increafed. It will not be enough to make 
 up a fcanty nifi prius roll only ; becaufe the court which tries the caufe, will 
 enter judgment, and mufl: therefore have the documents inrire. 
 
 2. Generally fpeaking, two fets of lawyers -will be retained. The fame prac- 
 titioners will not defert the more profitable bufmcfs of the flate courts, to at- 
 tend two federal courts, widely, diftant from each other, and very probably in- 
 terfering with the terms of the ftate courts : and if they do not ride with the 
 judges, the profpeft is equal, that a caufe, the original writ of which is return- 
 able in one place, may be ultimately heard at the other. 
 
 3. Theoriginal writs of fuits will moft commonly be returnable to theplace 
 neareft to the refidence of the witneffes. But if they are to go to the more re- 
 mote place, cods will be multiplied, and themfelves put to .additional trouble. 
 
 4. If a culprit fhould not be tried at the firfl: feffion, and the judges cannot 
 hold a fpecial intermediate feffion, he mufl: be tranfported in irons to the next 
 place of feffion, or languifh in gaol, until the court (hall meet at the place of 
 his confinement. And it will be very rare, that a fpecial feffion can be holden 
 by the judges of the fuprcme court at lead, as their duty will hafl:en them to 
 fome other circuit, and from thence to the feat of government. 
 
 VII. Ruks of I- ^t is conjectured that the common law was omitted among the rules of 
 cecifton. decifion, as haAing been already the law of the United States. Moft proba- 
 
 bly this will be feldom if ever controverted. But in one afpeft the exigence 
 of the common law, as the law of the United States, is equivocal. For 
 if the doctrines of the common law can be introduced into the federal 
 courts, only by recurring to them for the explanation of the language, u^ed 
 in the laws of the United States, and of particular dates; or by the connec- 
 tion which the common law will have with mod of the fuits in the federal 
 courts, as arifing within fome articular ftate : fome parts of the common
 
 L " ] 
 
 law, which do not fall within either of thefe chara6lers, will be eflrangcd from 
 our fyftem. 
 
 To cut off then fuch altercation, is not unworthy the care of Congrefs. 
 
 2. But the common law not being totally without blemifh, has been occa- 
 fionaliy improved by ftatute. Is the vvifdom of thefe improvements to be dif- 
 carded ? It is true indeed, that there ought to be a repugnance to naturalize 
 the ftatute book of a foreign nation, even for a moment. But the fad is, that the 
 United States have not yet had fufficient leifure to difengage themfelves from 
 ir, by enabling a code for themfelves. The time will come (perhaps it has already 
 come) when fuch a work will be indifpenfable. But until it (hall be completed, 
 it will be far lefs difgraceful to accept, under proper reftridions, fome part of 
 cur law from an alien volume, with which every ftate is well acquainted, and 
 to which the people have been accuftomed from their infant fettlements, than 
 abruptly to unhinge ancient legal tenets. And here the Attorney-General begs 
 leave to conjedure, that if the two claufes, concerning the forfeiture of the pe- 
 nalty annexed to articles, &c. and concerning abatements,bothof which have ori- 
 ginated from ftatutes, Ihould alone be inferted, every other part of the ftatutes, 
 would be excluded by conftrudion; except where they are the laws of a par- 
 ticular ftate, and in cafes belonging to that ftate. 
 
 Thefe appear to be the capital defiderata. Other alterations will be pro- 
 pofed in the draught, which is now offered, in obedience to the fecond part 
 of the order; namely, that a report be made of fuch provifions as may feem 
 advifeable. 
 
 SECOND PART. 
 
 THIS bill, althotigh not formally divided into cardinal parts, is yet divifible 
 into four. The firft contains all that is peculiar to the organization of 
 thediftridt courts ; the fecond, to that of the circuit courts ; the third, to that 
 of the fupreme court ; and the fourth, what is common to two, or the whole 
 of them. 
 
 The conftitution, the common law, and equity have ftiortened the derail. 
 But in the progrefs of the draught, the alternative was always in view, 
 either to make it immenfely proHx, by re-enading the neceifary ftatutes, or 
 to confider that thofe of a certain general nature would be fpecially adopted. 
 For the Attorney-General repeats, that the chafm will be found diftrefling in 
 pradice without fuch adoption. The latter then was preferred, as being in- 
 capable of any fatal error. In the former too much might have been omitted 
 without longer premeditation, and the very changes of language might gene- 
 rate confufion. 
 
 He therefore requefts, that whenfoever, on the perufal, any thing feems to 
 be too flightlv touched, or unnoticed, it fliould be enquired, in what manner 
 the Conftitution of the United States, equity, the common and ftatute law 
 have provided' for the cafe, and whether they have not provided fufficiently. 
 
 A BIL L for a)nending ihefe'veral Acls concerning the Judicial Courts of the 
 
 United States. 
 BE it enaded by the Senate and Houfe of Reprefentatives of the United i. DiviCon 
 States of America in Congrefs aflembled, that the United States fliall be, and '"'° ^^'ft""^*- 
 they are hereby divided into fifteen diftrids, to be limited and called as follows, 
 
 D
 
 c 
 
 12 
 
 3 
 
 :. Diftri<fc 
 courts and 
 j.idges. 
 
 3 Selfions 
 rhe diltrict 
 courts. 
 I. Stated. 
 
 of 
 
 •to wit : One to confifl of that part of the ftate of Maffachufett? which lies 
 eafterly of the ftate of New-Hamp{hire, and to be called Maine diftrict ; one 
 to confift of the ftate of New-Hampftiire, and to be called New-Hampfhire 
 diftrid ; one to confift of the remaining part of the ftate of Malfachufetts, and 
 to be called Maflachufetts diftri«5l ; one to confift of the ftate of Rhode-Ifland 
 and Providence Plantations, and to be called the diftri£t of Rhode-Ifland and 
 Providence Plantations ; one to confift of the ftate of Conne6licut, and to be 
 called Connedicut diftridt ; one to confift of the ftate of New- York, and to 
 be called New-York diftridt ; one to confift of the ftate of New-Jerfey, and to 
 be called New-Jerfey diftricl ; one to confift of the ftate of Pennfylvania, and 
 to be called Pennfylvania diftrift ; one to confift of the ftate of Delaware, and 
 to be called Delaware diftrift ; one to confift of the ftate of Maryland, and to 
 be called Maryland diftrict ; one to confift of the ftate of Virginia, except that 
 part called the diftrid of Kentucky, and to be called Virginia diftrid ; one to 
 confift of the diftrid of Kentucky, and to be called Kentucky diftrid ; one to 
 confift of the ftate of North-Carolina, and to be called North-Carolina diftrid ; 
 one to confift of the ftate of South-Carolina, and to be called South-Carolina 
 diftrift ; and one to conilft of the ftaie of Georgia, and to be called Georgia 
 diftrid. ^Note i.] 
 
 And be it further enaded. That there be a court called a diftrid court in 
 each of the aforefaid diftrids ; that it fhall confift of one judge, who fhall refide 
 in the diftrid for the court of which he is, or ftiall be appointed, and (hall be 
 called a diftrid judge ; and that before he proceeds to execute the duties of 
 his faid office, he fliall take the following oath or affirmation, to wit : " I, A.B. 
 do folemnly fwear or affirm, that I will adminifter juftice without refped to 
 perfons, and do equal right to the poor and to the rich ; and that I will faith- 
 fully and impartially difcharge and perform all the duties incumbent on me as 
 judge of the diftrid of according to the beft of my abilities and under- 
 
 ftanding, agreeably to the conftitution and laws of the United States. So help 
 me God :" — Which oath or affirmation ftiall be adminiftered by any one of 
 the juftices of the fupreme court of the United States ; any diftrid judge of 
 the United States ; any judge or juftice of the peace for the ftate forming the 
 diftrid ; or the clerk of the diftrid court : and a certificate thereof ftiall be 
 recorded in the diftricl court. 
 
 And be it further enaded. That each diftrid court Ihall hold two ftated 
 feffions in every year, at the times and places, and for the terms following, 
 that is to fay : [AV<? 2. J 
 
 Specul. 
 
 That each diftrid court ftiall alfo hold fpecial feffions for the purpofes here- 
 in after mentioned, at fuch times as the judge thereof ftiall appoint, and at the 
 places following, that is to fay : 
 
 Prcvifor, as to 
 the place and 
 aJjournmcnt. 
 
 Provided always. That the faid courts ftiall be holden in fome public court- 
 houfe, where the fame can be obtained; and that it ftiall be lawful forthe 
 Prefident of the United States, in vacation, or to the refpedive courts, if it 
 ftiall be rendered necefl"ary by any infedious diforder or other caufe, to dired 
 the feffions of the faid courts, whether ftated or fpecial, to be holden at fome 
 more fit place within the faid diftrids refpedively, until the faid caufe ftiall be 
 removed. [^NcU 3.]
 
 coaris. 
 
 :or. 
 
 t 
 
 [ 13 ] 
 
 And be it further enacted, That no ftate court fliall take cognizance of, or 4. ExcIuRoc 
 exercife jurifdiclion in any of the following cafes, to wit : of the naic 
 
 J. Cafes of admiralty, and maritime jurifdidion. 
 
 2. Controverfies, to which the United States fhall be a party defendant. 
 
 3. Controverfies, to which a particular ftate fhall be a party defendant ; 
 
 except where a ftate may have authorized a fuit to be brought 
 againft itfelf in its own courts. 
 
 4. Controverfies for lands claimed under grants of different ftates. 
 
 5. Treafon againft the United States, and crimes and offences created by 
 
 Congrefs, unlefs the cognizance thereof fhall be vefted by law in 
 the faid ftate courts, or ftate magiftrates. And, 
 
 6. Rights created by Congrefs, and having a fpecial remedy given to 
 
 them in the federal courts. [_Note 4.3 
 And be it further enaded. That each diftridl court (hall, under the regiila- ^ i^n{c\h 
 tions and reftriftions hereinafter mentioned, have original jurifdiclion of all of 
 cafes in law and equity, arifing — courts. 
 
 1. Under the Conftitution of the United States. 
 
 2. The laws of the United States : And, 
 
 3. Treaties made, or which ftiall be made under their authority. 
 
 4. Of all cafes affefting ambalTadors, and other public minifters being 
 
 plaintiffs, or confuls or vice-confuls, being plaintiffs or defen- 
 dants. \_Note 5.] 
 
 5. Of all civil cafes of admiralty and maritime jurifdiftion. 
 
 6. Of piracies and felonies on the high feas. 
 
 7. Of crimes and oftences created by Congrefs, arifins^ within its proper 
 
 diftria. 
 
 8. Of controverfies upon rights created by Congrefs, and having a fpe- 
 
 cial remedy given thereto in the federal courts. 
 
 9. Of all controverfies to which the United States (hall be a party- 
 
 plaintiff. 
 
 10. Of all controverfies between a ftate being plaintiff, and the citizens 
 
 of another ftate. 
 
 11. Of all controverfies between citizens of different ftates not claiming 
 
 lands under the grants of different ftates. 
 
 12. And of all controverfies between a ftate being plaintiff, and foreign 
 
 citizens or ftibjeds, or between the citizens of a ftate, and foreign 
 
 citizens or fubjefts. 
 Provided always, and be it further enafted. That the aforefaid jurlfdidllon 6. Regulations 
 of the dldria courts fhall be under the regulations and reftrictions following, of'^thf 'dtiiria 
 that is to fay : junfdiaion. 
 
 1. No perfon fhall fue out any original procefs, or commence any original 
 fuit in a diftrift court for the trial of any matter or thing of lefs value than 
 
 dollars, on pain of having the fame difmiffed with cofts ; except in 
 cafes of admiralty and maritime jurifdiclion, and in offences againft the reve- 
 nue laws. \^Note 6.] 
 
 2. No fuit fhall bebrbught or fuftained in equity, in the faid diflrict courts, 
 except in cafes of fraud, accident, truft, and unconicionable hardfnip, or where 
 the mode of proof, or the mode of relief at common law, be incompetent to 
 the cafe of the complainant, or where perfons, not refidcnt in the United States, 
 and having any eftate or debts in the hands of another, refident within the 
 diftridl for which fuch court is held, fhall, together with that other perfon, be 
 made defendant ; and in the laft mentioned cafe, the decree may fubjcft fuch 
 eftate and debts to the demand of the complainant. \_Note y.~] 
 
 3. The judge of a diftricl court may iffue writs of ne-exeat, returnable to 
 the faid court, againft any perfon who is about to depart from any diftridl.
 
 C H ] 
 
 und who may be liaible to be fued in equity in the faid diftricl courts. The 
 writs of ne-exeat, ihall command the defendant to find fufficient fecurity, in a 
 funi to be exprefled therein by the direction of the judge, that he will not de- 
 part the diftricl without the leave of ihe court ; and the plaintiff, or fome 
 relponfible perfon in his behalf, Ihall, at the time of obtaining the writ, enter 
 into bond with fufficient fecurity, in the clerk's office -of the diftrid: court, to 
 anfwer all damages which may accrue to the defendant from the faid writ. 
 
 4. Writs of injunftion in equity, may be granted by the judge of a diftrid 
 court, to judgments of the faid court at common law. But the plaintiff, or fome 
 refponfible perfon in his behalf, fhall, at the time of obtaining the faid writ, 
 enter into bond with fufficient fecurity in the clerk*s office of thediftricl court, 
 to anfwer damages at the rate of ten per centum, in cafe fuch injunction fhall 
 be diffolved. And no injundion in equity fliall be granted by a diftrid court 
 to a judgment at law of a ftate court. [Not£ 8.] 
 
 5. The jurifdidion herein before given to the diflricl courts over cafes 
 arifmg under the Conflitution, the laws and treaties of the United States, fhalJ 
 not be conftrued to comprehend fuch cafes in which the United States, or a 
 particular flate, fhall be defendant. [_Note 9.] 
 
 6. In all crimes and offences tried by any diflriO: court, the punifhment for 
 which, if confifting of ftripes, imprifonment, or a fine, is left to the difcretion 
 ofa jury or the court, the flripes fhall not exceed thirty,, nor the imprifonment 
 fix calendar months, nor the fine one hundred dollars. And wherefoever, in 
 any crime or offence, cognizable under the authority of the United States, the 
 puniffiment by flripes, imprifonment or fine be exprefsly defined by law, and 
 be greater than the number, the time, and the fum aforefaid, or wherefoever 
 the punifhment fhall affeft life or limb, nodiftrict court fhall exercife jurifdic- 
 tion therein, unlefs the offender being adually in prifon, fhall, by petition to 
 the faid court, requefl it ; and thereupon, if it fhall appear to the faid court 
 that due notice and fufficient time have been given to the officers of the United 
 States concerned, to prepare for the hearing, and that the circuit courts herein 
 after mentioned, have not already had poffeffion of the cafe, and that it would 
 tend to expedite its decifion, if the faid diftrift court flvould take cognizance of 
 it, it fliall be lawful for the faid diflrici court to hear and determine the fame ; 
 but this reltriction of the jurifdidion by this act given to the diftrift courts, 
 Jhall not be conftrued to extend to the diftrict courts in the diHritls of Ken- 
 tucky or Maine. \'Note 10.] 
 
 7. No civil fuit, being ofa tranfitory nature only, fhall be brmight againfl 
 an itihabitant of the United States, in any diftrici court other than that of the 
 diltricl to which he belongs, unlefs procefs for the fame caufe fhall have been 
 firft returned in the faid diftrict court, that he was not found, or he fliall be 
 abfcoQ^ing from his faid diftridt at the time of fuch fuit being brought, or he 
 fli.aU be privy or a party i^iintereft with a perfon refident within the diftrid 
 of the firfl mentioned court : And all fuits brought contrary hereto, may be 
 difmilfed on motion. 
 
 8. No diltrift court fhall have cognizance of any fuit, to recover the con- 
 tents of any proniiffory note, or other chofe in action in favor of an affignee, 
 unlefs a fuit might have been profecuted in fuch court to recover the faid con- 
 tents, if no affignment had been made, except in cafes of foreign bills of ex- 
 change. 
 
 q. No perfon whatfoever fhall, in any civil adion or fuit brought in a dif- 
 trici court, be arrefted or lummoned in one diftrid for trial in another, unlefs 
 he be privy or a party in intereft ?s aforefaid, in which cafe he may be fum- 
 mone.d. \_Note it.] 
 
 10. Local adions flitill be brought in the court of the diftrid in which 
 they arife.
 
 courts. 
 
 [ 15 J 
 
 II. No fpecial feffion of adiftrid: court fhallbeheld, but for civil ca.ufes 
 of admiralty and maritime jurifdiftion as aforefaid; and for feizures under the 
 laws of impoft, navigation or trade of the>United States, and no fuch caufe 
 ihall be heard at any llated feffion of the faid court. [Note 1 2.] 
 
 And be it further enaded, That the judges of the diftridl courts fhall be con- 7. Confervator* 
 fervators of the peace of the United States throughout their refpcdive di- °f^=P^^". 
 ftrifts. [Note 13.] 
 
 And be it further enafted. That each diftridt court, or the iud^e in vaca- ?• ^.'i''^' ^^'^* 
 
 •1111 ri'iTL autrict court*. 
 
 tion fhall have power to appomt the clerk thereor, who, berore he enters upon 
 the execution of his office, ffiall take the following oath or affiArmation, to be 
 adminiftered by the faid judge : " I, A. B. being appointed clerk of the dirtrldt 
 of do folemnly fwear, or affirm, that I will truly and faithfully 
 
 enter and record all the orders, decrees, judgments, and proceedings of the faid 
 court, and that I will faithfully and impartially difcharge and perform all the 
 duties of my faid office, according to the bed of my abilities and underftand- 
 ing. So help me God:" but the words " So help me God," ffiall be omitted 
 in all cafes of affirmation. And the faid clerk ffiall give bond to the United 
 States in a reafonable penalty, with one furety at lead, to be approved by the 
 faid diftrift judge, conditioned faithfully to discharge the duties of his office, and 
 feafonably to record the decrees, judgments, and orders of the faid co'urt ; 
 which bond ffiall be recorded in the faiJ diftridb court, and ffiall rtot be void 
 upon the firft recovery, but may be put in fuit, and profecuted from time to 
 time, at the cofts and charges of any party or parties injured, until the whole 
 fum of the penalty expreffed in fuch bond ffiiall be recovered thereon. 
 
 And be it further enacted, That a marffial ffiall be appointed in and for each 9. Marfh?.]. ot 
 diftrid for the term of four years ; but ffiall be removable from office at plea- '^^ "^'^'"'^ 
 fure. That before he enters on the duties of his office, he ffiall become bound 
 to the United States before the judge of the faid diftrict, jointly and feverally 
 with two good and fufficient fureties, inhabitants, and freeholders in the faid 
 diftrift, to be approved by the faid diftri<fl: judge, in the penal fum of twenty 
 thoufand dollars, conditioned for the faithful difcharge of the faid office by 
 himfelf and his deputies herein after mentioned ; and ffiall moreover take be«- 
 fore the faid judge, the following oath or affirmation, omitting in the cafe of 
 affirmation the words, " So help me God." " I, A. B. do folemnly fwear, or 
 affirm, that I will faithfully execute all lawful precepts direfted to the marffial 
 of the diflrift 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 marffial of the laid diftrid: of 
 
 during my continuance in the faid office, and take only my lawful 
 fees. So help me God." That the faid marffial ffiall be adjudged to be an 
 officer of the court of the diftricl for which he ffiall be fo appointed ; ffiall at- 
 tend the fame accordingly ; ffiall execute throughout the diftrid: all writs, 
 precepts, fummonfes, and procefs iflued under the authority of the United 
 States, and directed to him ; and ffiall have power to command all neceffary 
 affiftance in the execution of his duty. 
 
 That it.ffiall be alfo lav/ful for each marffial to appoint, as he ffiall fee occafion, 
 one or more deputies, who ffiall be removable from office by the diftrid judge, 
 and before they enter on the duties of their office, fliall take before the diftrid 
 judge the oath or affirmation aforefaid, prefcribed to be taken by the marffial, 
 changing the word '' marffial," where it occurs in thefecond plaCe in the faid 
 oath or affirmation, to the words " the marffial's deputy ;" that in cafe of the 
 death of any marffial, his deputy or deputies ffiall continue in office, unlefs fpe- 
 ci''lly removed as aforefaid, and ffiall execute the fame in the name of the 
 deceafed, until another marffial ffiall be duly qualified ; that the executor or 
 adminiflrator of any deceafed marffial ffiall have like remedy for the faults and 
 
 £
 
 [ j6 j 
 
 misfeafances in office oF his deputy or deputies, which fhall happen after the 
 faid marfhal's death, as lor thoie which may have happened in his Ufe time. 
 
 That every marihal, and a deputy or deputies, when removed from office, 
 or when the term for which the marihal was appointed, fhall expire, fhail have 
 power notwithflanding to execute all fuch writs, precepts, fummonfes and 
 procefs as may be in their hands refpeclively, at the time of fuch removal or 
 expiration of office, unlefs the judge of the diflrid court fliall otherwife di- 
 rccl. INote 14.] 
 
 That the marfhal, or in caf< of his death his eftate fhall be anfwerable for the 
 delivery to his fuccelTor of all prifoners who may be in his cuftody at the time 
 of his death or removal, or the expiration of the term of his appointment, and 
 for that purpofe the marihal when living, or his deputies in cafe of his death, 
 may retain fuch prifoners in cullody until a fucceffor Ihall be duly qualified, 
 unlefs the judge of the diftrict court Ihall otherwife direO:. But nothing herein 
 contained fhall fubjed a marfhal for any omiifion or misfeafance of the keepers 
 of the flate gaols. 
 
 That in all cafes wherein the marfhal or his deputy fhall be interefled, or 
 fhall not be an indifferent perfon, the writs, precepts, fummonfes and procefs 
 Ihall be direfted to fuch difmterefted or indifferent perfon as the diftri 61 judge 
 may ^ippoint ; and the perfon fo appointed, is hereby authorized to execute 
 and return the fame. 
 
 That the bond fo to be given as aforefaid by each marfhal, fhall be forfeited, 
 not only by the defaults and misfeafances in office of himfelf or his deputy or 
 deputies in his life time, but alfo for the defaults and misfeafances of a deputy 
 •or deputies after his death in the cafes aforefaid j fhall be recorded in the faid 
 diltrid court ; and fliall not be void upon the firlt recovery, but may be put 
 in fuit, and profecuted from time to time, by and at the cofts and charges of 
 any party or parties injured, until the whole fum of the penalty expreffed in 
 fuch bond fnall be recovered thereon. 
 
 And that the faid marfhal fhall be liable on motion, after ten days previous 
 notice, to judgment in his diftrid court, and execution, for monies received 
 by himfelf or his deputies, by virtue of their offices, and not duly paid to the 
 perfon intitled thereto, upon application for the fame. 
 
 And be it further enafted. That until it fhall be otherwife provided by law, 
 rle!ks and ma", the rates of fees (except the fees to judges) and the allowances to witneffes, 
 fhaisin the dif- fhall be the fame in the diftricl courts, as in fimilar cafes in the fupreme court 
 *"^ in the laft refort, of the ftate of which the diflritt confiils ; and for the fervices 
 
 of the clerks and marfhals in cafes which are unlike to thofe in the faid fupreme 
 court, a reafonable compenfation fhall be paid by the parties, to be determined 
 by the diftrict courts, according to equity and the nature of the cafe ; that all 
 tlie faid fees and comjjenfations not received in cafh, fhall be collected by the 
 marflial or his deputies, according to the laws of the ftate for colledling fuch 
 . fees, and fhall be accounted for to the faid diftrift courts at every feffion, when 
 an entry fhall be made of the fums appearing to have accrued, a copy of which 
 fhall be tranfmitted by the judge to the circuit courts, for the purpofes herein 
 after mentioned. 
 " '\'^r(r"{ ^^^ ^^ ^^ further enafted. That there fhall be no difcontinuance of any fuit, 
 courts. procefs, matter or thing returnable to, or depending in any diftrift court, al- 
 
 though a judge fhall not have been appointed to a vacancy, or the judge fhall 
 fail to attend at the commencement, or any other day of a feffion ; but the 
 judge may at the commencement of a feffion, by a written order, direO: the 
 marflial of the diftrift to adjourn the court from day to day, for three days 
 fucceffively, and if he fhall not attend on the fourth, or having attended one 
 day, fhall fail to attend on a fubfequent day of a feffion, the court fhall ftand 
 adjourned to the court in courfe.
 
 [ ^7 ] 
 
 And be it further enaded, That fuch writs, fummonfes, and other procefs, jo. p.oceed. 
 fhall be ifTued from the feveral diftrict courts for the commencement and pro- '"gs >" ''=« dif- 
 fecution of any civil action, fuit or matter therein; and that the forms and '""'^<^'^"^- 
 modes of proceeding in conducting the lame to a trial or hearing fliall be fuch 
 as the fupreme court, according to the regulations herein after provided Ihall 
 dired. But until directions Ihall be fo given by the fupreme court, and in 
 cafes not herein otherwife provided for, the writs, fummonfes, procefs, forms 
 and modes aforefaid, (hall be in cafes at common law, as nearly as may be 
 according to the practice of the higheft flate court of common law in each 
 diitrift, having original and general jurifdidtion ; and in cafes in equity, ac- 
 cording to the praftice of the higheit ftate court of equity in each diftritl, 
 having original and general jurifdictlon, and where no fuch court of equity 
 exilts in any ftate, the diftrift court lliall proceed in equity, according to the 
 forms, modes, rules and ufages which belong to a court of equity, as contra- 
 diftinguilhed from a court of common law ; and in cafes of admiralty, the dif- 
 trid courts fliaU proceed according to the pradice of the admiralty, properly 
 fo called: and every diftrid judge Ihall moreover have the fame power to iffue 
 writs of habeas corpus, returnable in vacation before himfelf, as in fefiion re- 
 turnable to the court. 
 
 And be it further enacted. That it fnall be lawful for each diftrict judge, for 13- Ball in the 
 good caufe fhewn, to direO: appearance-bail to be required ; and for every dif- '^'^"^ '^°^'*^' 
 trid court, upon like caufe, to re-quire fpecial bail : that a plaintiff iffuing a 
 capeas, may alfo obtain an indorfement thereon from the clerk, requiring 
 appearance-bail, upon lodging with the faid clerk an affidavit, that the defen- 
 dant from whom bail is fo required, is, as far as the plaintiff knows or beheves, 
 not a refident within the United States, or that a writ has been returned inlhe 
 fame cafe to the court of the diftrid in which he refides, and that the defendant 
 was not found there, and that the defendant is indebted to the plaintiff to the 
 amount of or detains perfonal property from him to a like amount ; 
 
 and fhall moreover give in the clerk's oflice, bond with fufficiem furety to the 
 defendant, in a realbnable penalty, conditioned to anfwer all damages which 
 may accrue to the defendant, if it fhould thereafter appear, that bail has been 
 thus required for the fake of vexation. 
 
 That the feveral diftrid courts may appoint proper perfons for taking fpeciaJ 
 bail ; who Ihall without delay tranfmit the recognizances of bail to the clerks 
 of the faid courts. 
 
 That the feveral marfhals and their deputies, Ihall take bail bonds for ap- 
 pearances ; and fhall tranfmit them without delay to the clerks of their refped- 
 ive courts. 
 
 That if thefufficiency of bail be objeded to, reafonable notice of fuch objec- 
 tion fhall be given to the marfhal or the deputy taking fuch bail, before a mo- 
 tion fhall be made concerning it : that if upon a motion before the court, the 
 bail be adjudged infufficient, the marflial fhall be anfwerable therefor ; Provi- 
 ded always, that it fhall be a juftification of the marfhal, if an affidavit fhall 
 have been made previous to the acceptance of the bail, verifying the fufficiency 
 thereof; unlefs it can be proved, that the faid marfhal, or the deputy who took 
 the fame, had good reafon to fufped fuch fufficiency. 
 
 And that the fpecial bail may furrender the principal either before or after 
 judgment, to the marfhal or his deputies belonging to the court in which the 
 fuit fhall be brought, and may thereby difcharge himfelf. And if the princi- 
 pal cannot give other fpecial bail, he fhall be committed. \_Note 15.] 
 
 And be it further enaded. That the executions to be iffued from the diftrid 
 courts of the United States, fhall be elegit, capias ad fatisfaciendum, fieri facias, f,om ''the dif- 
 and levari facias : that the return days thereof fhall be appointed by the diftrid tria courts. 
 courts refpedively : that there ftiall be the fpace of between the date
 
 C '8 ] 
 
 of the executions, and the return days : Provided always, That when judgment 
 fhall be entered in any diftrift court, in a civil aftion, it fhali be lawful for the 
 faid court to flay the execution for forty-two days from the time of entering 
 the judgment. [Note i6.J 
 
 15. Appeals And belt further enatled, That from every final decree rendered by any dif- 
 and writs of cr- jr^ rourt fexcept thofc of Kcntuckv and Maine) in the exercife of its admiralty 
 
 ror on the judg- •-''-*- V r ..,_,. ^ . ■' , . r r r • 1 i 1 r 
 
 mentsofthedif- and maritime and equity jurildichon, and in cales ot leizure under the laws ot 
 tria courts. impofl, navigation or trade of the United States, an appeal Ihallbe allowed to 
 the court of the circuit in which the diftrid: lies ; and on all other final judg- 
 ments rendered by the faid diftrict courts, a writ of error maybe inftitutedin 
 the faid circuit court : And appeals and writs of error may in like manner be 
 inftituted in the fupreme court of the United States, on the final decrees or 
 judgments of the diftrict courts of Kentucky or Maine. But allfuch appeals 
 and writs of error fhall be fubject to the rules and regulations herein after pro- 
 vided ; and it fhall be alfo the duty of the faid diftrifit courts, in fuits in equity, 
 and of admiralty and maritime jurifdiction, to caufe the fads on v/hich they 
 found their fentence or decree, fully to appear upon the record, by inferting 
 the depofitions of the witnefies fworn in the caufe, and the exhibits therein, at 
 large. \^Note 17.] 
 
 16. Divjfionin- And be it further enafted. That the diftrids aforefaid-, except thofe of Ken- 
 to circuits. tucky and Maine, fhall be divided into three circuits, and fhall be called the 
 
 Eaftern, the Middle, and the Southern Circuit : that the Eaftern Circuit ftiall 
 confift of the diftricts of New-Hampfhire, Maffachufetts, Rhode-IHand and Provi- 
 dence Plantations, Connedicut, and New- York ; that the Middle Circuit fhall 
 confift of the diftricts of New-Jerfey, Pennfylvania, Delaware, Maryland, and 
 Virginia ; and that the Southern Circuit fhall confift of the diftrids of North- 
 Carolina, South-Carolina, and Georgia. 
 I., cirniit And be it further enadted. That there ftiall be a court, called a circuit court 
 
 courts; days; in each of the aforcmentioncd circuits, which fhall be holden in each diftrid 
 of the faid circuits twice in every year, on the following days, to wit : 
 
 tWBlS. 
 
 That the faid circuit courts fhall alfo have power to hold fefTions for the trial 
 of criminal caufes at any other time at their difcretion, or the difcretion of 
 the fupreme court ; and that the terms during which the faid circuit courts 
 fhall continue to fit at their two ftated feffions aforefaid, fhall be juridical 
 days, unlefs the bufinefs ready for trial, fhall be fooner difpatched ; in which 
 cafe, the court fhall be adjourned to the court in courfe. [Note 18.] 
 18. Places for And be it further enacted. That the places for holding the faid circuit courts 
 holding the cir- jj^ ^^^ dlftrifts of the feveral circuits aforefaid, ftiall be as follow: 
 
 •uit courts. 
 
 Provided always. That the faid circuit courts fhall be holden in fome pubJic 
 court houfe, where the fame can be obtained; and that it fhall be lawful for 
 the Prefident of the United States, in vacation, or to the refpedive courts, if it 
 fhall be rendered neceffary by any infectious diforder, or other caufe, to dirett 
 the feffions of the faid courts to be holden at fome more fit place within the 
 faid diftricls refpeftively, until the faid caufe fliall be removed. 
 h.dgos of And be it further enaded. That the circuit courts aforefaid, fhall confift of 
 the judges of the diftrid courts comprehended within the faid circuits refpec- 
 tively : that before they proceed to execute the duties of this office, they fhall 
 
 the circuit 
 
 couru,
 
 t '9 ] 
 
 take, as judges of the circuit courts, the oath or affirmation, mutatis mutandis^ 
 hereinbefore prefcribed to them, as diftrid judges, to be adminiftered by any 
 juftice of the fupreme court of the United States, any diftrid judge of the Uni- 
 ted States, within his proper diflrid, or any judge or juftice of the peace for the 
 ftate belonging to the circuit : that a certificate thereof fhall be recorded in. 
 the circuit court j and that any three of the diftricl judges in the eaftern and 
 middle circuits ; and any two of the diftridl judges in the fouthern circuit fliall 
 conftitute a quorum : Provided that no diftrict judge fhall give a vote in any 
 appeal or writ of error brought to reverfe his own decifion ; but he may aflign 
 the reafons of fuch decifion. \_Note 19.] 
 
 And be it further enaded, That the circuit courts aforefaid, (hall, under the ao. jurifdir- 
 regulations and reflridions hereinafter mentioned, have original iurifdidion of ^'°" ''*'''^'^"'^- 
 
 ,P - . , , . .^ O J CUlt couits. 
 
 all cafes m law and equity anlmg 
 
 1. Under the Conftltution of the United States. ^, Original. 
 
 2. The laws of the United States. 
 
 3. And treaties made, or which fhall be made under their authority, 
 
 4. Of all cafes affefting ambaffadors and other public minifters, being plain- 
 tiffs, or confuls or vice-confuls, being plaintiffs or defendants. 
 
 5. Of all controverfies in which the United States fhall be a party. 
 
 6. Of all controverfies between a flate, being plaintiff, and the citizens of 
 another flate. \_Note 2o,~\ 
 
 7. Of all controverfies between citizens of different ftates. 
 
 8. Of all controverfies between citizens of the fame ftate, claiming lands 
 under grants of different ftates. 
 
 9. Of all controverfies between a ftate, being plaintiff, or the citizens thereof, 
 and foreign ftates, citizens or fubjedls. 
 
 10. Of piracies and felonies committed on the high feas. 
 
 11. Of crimes and offences created byCongrefs, arifing within their refpec- 
 tive circuits : And 
 
 12. Of controverfies arifmg upon rights created by Congrefs, and having a 
 fpecial remedy given thereto in the federal courts. 
 
 That the faid circuit courts fhall alfo have appellate jurifdiftion over the dif- 2. Appdlatt. 
 trift courts, under the regulations and reftridions hereinafter provided, and 
 may iffue writs of prohibition to the circuit courts, when proceeding as courts 
 of admiralty and maritime jurildiction, as well as writs of confultation ; writs 
 of mandamus, in cafes warranted by the principles and ufages of law ; and 
 under the authority of the United States; and alfo writs of certiorari to the 
 diftrid or ftate courts, according to the rules hereinafter prefcribed. 
 
 Provided always, and be it further enaded, That the aforefaid jurifdidion ji. Reguia- 
 of the circuit courts fhall be under the regulations and reftridions following ; *'°."i.^"'^ ''/^^ 
 
 . - O O ' Undions of the 
 
 that IS to lay : circuit jurifdic 
 
 1. No perfon fhall fue out any original procefs, or commence any original ''°°' 
 fuit in a circuit court, for the trial of any matter or thing of lefs value than 
 
 dollars, on pain of having the fame difmiffed with cofts. 
 
 2. No fuit fhall be brought or fuftained in equity in the faid circuit courts, 
 except in cafes of fraud, accident, truft, or unconfcionable hardfhip, or where 
 the mode of proof, or the mode of relief at common law, be incompetent to 
 the cafe of the complainant, or where perfons not refident in the United States, 
 and having any eftate or debts in the hands of another perfon refident within 
 the diftrid in which fuch circuit court is held, fhall, together with that other 
 perfon, be made defendant : and in the laft mentioned cafe, the decree may fub- 
 jed fuch eftate and debts to the demand of the complainant. 
 
 3. The feveral circuit courts, and any judge thereof, may iffue writs of 
 ne-exeat, returnable to the faid courts, againft any perfon who is about to depart 
 from the diftrid, and who may be liable 10 be fued in equity in the faid circuit 
 
 F
 
 [ ^o ] 
 
 courts refpefHvely. The writs of ne-exeat fhall comand the defendant to give 
 fufficient fecurity in a fum to be expreffed therein by the dire£lion of the court 
 or judge, that he will not go out of the faid diflrid, without leave of the faid 
 court ; and the plaintiff, or fome refponfible perfon in his behalf, fhall, at the 
 time of obtaining the writ, enter into bond, with fufficient fecurity, in the 
 clerk's office, of the circuit court, to anfwer all damages which may accrue to 
 the defendant from the faid writ. 
 
 4. Writs of injundion in equity may be granted by the feveral circuit courts, 
 or any judge thereof, to judgments of the faid courts refpedively at common 
 law, or to judgments of common law at any diftrid court within their refpec- 
 tive circuits : but the plaintiff, or fome refponfible perfon in his behalf, fhall, 
 at the time of obtaining the faid writ, enter into bond, with fufficient fecurity, 
 in the clerk's office of the circuit court, to anfwer damages at the rate of ten 
 per centum, in cafe fuch injundion fhall be diffolved : and no injundion in 
 equity fhall be granted by a circuit court to a judgment at law of a ftate court. 
 
 5. The jurifdidion herein before given to the circuit courts over cafes 
 arifmg under the Conflitution, the laws and treaties of the United States, fhall 
 not be conflrued to comprehend inch cafes in which a particular flate fhall be 
 defended. \_Note 20.] 
 
 6. No civil fuit, being of a tranfitory nature only, fhall be brought agalnfl 
 an inhabitant of the United States, in any circuit court other than that which 
 fhall be holden in the diftrid to which he belongs, unlefs procefs for the fame 
 caufe fhall have been firft returned in the faid circuit court, fo to be holden, 
 that he was not found, or he fhall be abfconding from his faid diftrid, at the 
 time of fuch fuit being brought ; or he fhall be a privy or party in interefl with 
 a perfon refident in a diftrid within the circuit : and all fuits brought contra- 
 hereto, may be difmiffed on motion. 
 
 7. No circuit court ihall have cognizance of any fuit to recover the contents 
 of any promiffcry note, or other chofe in adion in favor of an affignee, unlefs 
 a fuit might have been profecuted in fuch court, to recover the faid contents, if 
 no affignment had been made, except in cafes of foreign bills of exchange ; and 
 on a change of the venue herein after mentioned. 
 
 8. No perfon whatfoever, fhall in any civil adion or fuit brought in a cir- 
 cuit court, be arrefted or fummoned in one diftrid for trial in another, unlefs 
 he be a privy or party in intereft as aforefaid, or the venue be changed, as is 
 herein after mentioned ; in which cafe he may be fummoned. 
 
 9. Local adions fhall be brought in the circuit court to be holden in the 
 diftrid in which they arife. 
 
 5Z, Conferva- And bc it further enaded. That the judges of the circuit court fhall be con- 
 *"."'?f'^^P"*^'= fervators of the peace of the United Slates throughout their refpedive circuits. 
 ^?t.'° ^ *^' And be it further enaded. That the clerks of the diftrid courts fliall be alfo 
 clerks of the circuit courts, appointed to be holden in their refpedive diftrids: 
 23. Clerks of ^-^^^ ^jjgy {j^^jj j^j^g 35 clcrks of the circuit courts, an oath or affirmation of of- 
 Lmr"' fice, fimilar to that prefcribed to them as diftrid clerks ; which oath or af- 
 
 firmation fhall be adminiftered by any juftice or judge of the United States ; 
 and a certificate of the taking of which fhall be recorded in the circuit court ; 
 and that the bond and furety given by them as clerks of the diftrid courts re- 
 fpedively, fliall ftand and enure for their good condud as clerks of the circuit 
 courts. 
 14. ruty of And be it further enaded. That themarfhals of the diftrids aforefaid, ftiali 
 rnuU in the jjg adjudged to be officers of the circuit courts appointed to be holden in their 
 cult courts. j.gj-p^^-^-yg diftrids, and fliall attend the fame accordingly ; that the faid deputies 
 fliall be removable from office by the circuit courts, while fitting in the diftrids 
 to which the deputy or deputies \o removed, belong ; and that the faid marflials 
 and their deputies fhall be bound to perform, throughout their refpedive di- 
 
 £iiciut courts.
 
 [ 21 ] 
 
 ftrifts, the fame duties in relation to the bufinefs of the circuit courts fitting in 
 their diftrid:s, as they ought by virtue of this ad to perform in relation to the 
 bufmefs of their difl:ri6l courts. 
 
 And be it further enafted, That until it fhall be otherwife provided by law, 45. Feesoftitp 
 the fees and compenfations to the clerks and marfhals, and the allowances to c^^j-ks and mar- 
 witnefles, fliall be the fame in the circuit, as in the diftrid courts ; that they 
 Ihall be colleded and accounted for to the circuit courts refpeftively, in the 
 fame manner as is prefcribed in the cafe of the diftrid courts / that the circuit 
 courts, (hall, once in every year, determine upon fome reafonable faiisfadlion 
 to be made to the clerks and marfhals within their circuits, in confideration of 
 their offices ; that they ihall thereupon enter upon record what fum, not ex- 
 ceeding dollars to a clerk, nor dollars to a marfhal, 
 in addition to the emolum.ents arifmg from the diftrid and circuit bufmefs 
 aforefaid, they ought to receive ; and the fame fhall be paid accordingly at the 
 treafury of the United States. [Note 21.] 
 
 And be it further enaded. That there fhall be no difcontinuance of any 26. Adjoum- 
 fuit, procefs, matter or thing returnable to, or depending in, any circuit court, '"'^"'• 
 although a quorum of judges fhall fail to attend at the commencement, or any 
 other day of any fefTion : but if a majority of them fhall fail to attend at the 
 commencement of any fefTion, the marfhal of the diflrid may adjourn thecourt 
 from day to day for three days fuccelHvely ; and if a quorum fhall not attend on 
 the fourth, or having attended one day, fhall fail to attend on a fubfequent day 
 of a fefTion, the court fhall fland adjourned to the court in courfe. 
 
 And be it further enaded. That fuch writs, fummonfes, and other procefs, 27. procecd- 
 fhall be ifTued from the feveral circuit courts, for the commencement and pro- "^g^- 
 fecution of any civil adion, fuit, or matter therein ; and that the forms and 
 modes of proceeding in conduding the fame to atrial or hearing, fhall be fuch 
 as the fupreme court, according to the regulations herein after provided, fhall 
 dired. But until diredions fhall be fo given by the fupreme court, the Attor- 
 ney-General fhall be fummoned, where the United States are defendant ; and in 
 other cafes not herein otherwife provided for, the writs, fummonfes, procefs, 
 forms, and modes aforefaid, (hall be in cafes at common law, as nearly as may be, 
 according to the pradice of the higheft ftate court of common law in each diltrid 
 where the circuit courts fliall Tit, having original and general jurifdidion ; and in 
 cafes in equity, according to the highefl ftate court of equity in fuch diftrid, 
 having original and general jurifdidion ; and where no court of equity exifts in 
 any ftate, the circuit court in fuch ftate fhall proceed in equity, according to the 
 forms, modes, rules, and ufages which belong to a court of equity, SfScontradif- 
 tinguifhjed from a court of common law ; and in cafes of admiralty, the diftrid: 
 courts fhall proceed according to the pradice of the admiralty, properly fo 
 called ', and every circuit judge fhall moreover have the fame power to ifTue 
 writs oi habeas corpus, returnable in vacation before himfelf, as a circuit judge, 
 or before any other judge of his circuit, who (hall happen to be within the dif- 
 trid, as the circuit court has to ifTue fuch writs returnable to the court. 
 
 And be it further enaded, That the power of the circuit judges, as to ap- ^g, BaiUnthc 
 pearance-bail, and of the circuit courts as to fpecial bail and the appoinment of <^ircuit courts 
 perfons for taking the fame, and the right of the plaintiff to require bail, and 
 all other matters and things concerning bail, fhall be the fame, and ftiall be 
 governed by the fame rules as are herein before prefcribed concerning bail in 
 the diftrid courts. 
 
 And be it further enaded. That the executions to be ifTued from the circuit 29. Erecu- 
 courts fhall be the fame, as thofe to be ifTued from the diftrid courts ; that the ';'°."*.'." ^^^ '^'^' 
 return days fhall be appointed by the circuit courts in like manner ; and ex- 
 ecution may be ftayed for the fame time, as in the diftrid courts. But it fhall 
 be lawful for a circuit court, for good caufe, to dired executions to be ifTued 
 
 cult courts.
 
 c 
 
 22 
 
 ] 
 
 go. Amena- 
 bility of the 
 circuit courti (o 
 the fupreme 
 court. 
 
 31. Supreme 
 court. 
 Judges and 
 precedence. 
 
 ga. Oath of 
 
 juOices of the 
 fupreme court. 
 
 33. ScfTIons 
 2nd places. 
 
 34. Jurifdic- 
 tion of the fu- 
 preme court. 
 
 1 . Original. 
 
 2. Appellate. 
 
 35. Confcr- 
 
 vatOiS of the 
 
 peart within 
 
 the United 
 
 States. 
 
 ^6. Rcpo:ts. 
 
 on judgments obtained In a diftrid court, within Its circuit, to any other dif- 
 trift within the fame. 
 
 And be it further ena£ted,That upon any final decree or judgment, rendered 
 by a circuit court, an appeal or writ of error may be brought in the fupreme 
 court of the United States, as herein after is provided ; and that it fliall be the 
 duty of the circuit courts, in caufes in equity, to caufe the facts on whichthey 
 found their decree, fully to appear upon the record by inferting the depofi- 
 tions of the witnelTes fworn in the caufe, and the exhibits therein at large. 
 
 And be it further enafted. That the fupreme court of the United States (hall 
 confift, as at prefent, of a chief juflice, and five aflbciate juftices, any four of 
 whom fhall be a quorum : that the aifociate juftices Ihall have precedence ac- 
 cording to the date of their commifrions,or when the commiffions of two or 
 more of them bear date on the fame day, according to their refpeftive ages. 
 
 And be it further enafted. That the juftices of the fupreme court, before 
 they proceed to execute the duties of their refpedlive offices, fhall take the fol- 
 lowing oath or affirmation, to wit ; " I, A. B. do folemnly fwear or affirm, that 
 I will adminifter juftice without refpedl to perfons, and do equal right to the 
 poor and to the rich, and that I will faithfully and impartially difcharge and 
 perform all the duties incumbent on me as according to 
 
 the beft of my abilities and underftanding, agreeably to the Conftitution and 
 laws of the United States. So help me God ;" omitting in rhe cafe of an af- 
 firmation, the words " So help me God ;'* which oath or affirmation fliall be 
 adminiftered by any juftice or judge of the United States, or any clerk of the 
 diftrid or circuit court ; and a certificate of the taking of which fhall be re- 
 corded in the fupreme court. 
 
 And be it further enacled. That the fupreme court fhall fit at the feat of go- 
 vernment four times in every year, to wit ; on the firft Monday in the months 
 of that each term fhall 
 
 continue for the fpace of juridical days, unlefs the bu- 
 
 finefs depending before the faid court fhall be fooner difpatched : but the faid 
 court fhall have power to prolong their feffion beyond the term, for expediting 
 the bufinefs depending before them, if they fhall fee caufe. 
 
 And be it further enacled, That the fupreme court fhall have original jurif- 
 diclion, 
 
 1. In all cafes affe<5ling ambaffadors, other public minifters and con- 
 
 fuls : And, 
 
 2. In thofe which a ftate fhall be a party. 
 
 That in the cafes of which the circuit courts aforefald, and the diftrid: courts 
 of Kentucky and Maine have cognizance, the fupreme court fhall have appel- 
 late jurifdiclion, under the regulations of appeals and writs of error herein after 
 mentioned : that the fupreme court fhall have power to iffue writs of mandamus 
 according to law, and writs of certiorari to the circuit and ftate courts, accor- 
 ding to the rules herein after mentioned, to direfl the writs, fummonfes, procefs, 
 forms-and modes of proceeding to be iffued, obferved and purfued by the faid 
 fupreme court, and the diftrid and circuit courts, taking care that a letter mif- 
 five, fignedby the chief juftice, fhall be addreffed, where a ftate is defendant, 
 to the executive thereof, and that the Attorney-General of the United States, 
 where the United States are defendant, fhall be fummoned, and for good caufe 
 ftiewn, to change the venue in any fuit depending in a circuit court, fo as to caufe 
 the fame to be tried in any other circuit court in the fame circuit. \_Note 22.3 
 
 And be it further enafted. That the juftices of the fupreme court, fhall be 
 confervators of the peace of the United States, throughout the fame. 
 
 And be it further enafled, That the juftices of the fupreme court fhall, on 
 the conclufion of any appeal or writ of error, ftate the whole merits of the 
 cafe, tht queftions arifing (herefrom, the opinions of the court thereupon, and 
 a fummary of the reafons in fupport of thoie opinions ; all which fhall at the
 
 C n ] 
 
 end of each term, be entered in a book to be kept for that purpofe, and copies 
 fliall be tranfmitted by the clerk to each diftridt and circuit court : that it (hall 
 be the duty of each juftice of the fupreme court, prefent at the hearing of any 
 appeal or writ of error, and differing from a majority of the court, to deliver 
 his opinion in writing, to be entered as aforefaid : and that each judge (hall 
 deliver his opinion in open court. 
 
 And be it further enabled. That as foon as the juflices of the fupreme court 37 Table of 
 fhall have eftablifhed a fyftem of praftice as aforefaid, it (hall be the duty of the ^'" ""^ '''"'• 
 Attorney-General to pepare and report to Congrefs, a table of fees and cofts. 
 
 And be it further enaded, That the fupreme court, or any four juflices there- 
 of, in vacation, fliall have power to appoint a clerk for the faid court, who fhall, p^f ■^^'^^^^^'^'^^ 
 before he enters upon the execution of his office, give bond, with fufficient fure- 
 ties, to be approved by the court, or the juflices appointing him, to the United 
 States, in the fum of two thoufand dollars, conditioned faithfully to difcharge 
 the duties of his office, and feafonably to record the decrees, judgments and or- ' 
 ders of the faid court ; which bond fhall be recorded in the faid court, and 
 fhall not be void upon the firfl recovery, but may be put in fuit and profecuted 
 from time to time, at the cofts and charges of any party or parties injured, un- 
 til the whole fum of the penalty expreffed in fuch bond fhall be recovered 
 thereon. And the faid clerk fhall alfo take an oath or affirmation of office, 
 fimilar to that prefcribed in the cafe of a diflrift clerk, mutatis mutandis ; which 
 oath or affirmation fhall be adminidered by any judge of the fupreme court, 
 and a certificate of the taking of which fhall be recorded in the faid court. 
 And for his fervices, the clerk of the fupreme court fhall receive fuch allowance 
 as the faid court fhall adjudge, not exceeding dollars per annum, 
 
 to be paid at the treafury of the United States. 
 
 And be it further enacled. That the marfhal of the diflrid in which the fu- 39. Marfhal of 
 preme court fhall fit, fhall be adjudged to be an officer of the faid court, and '^^ fupreme 
 fhall attend the fame accordingly ; that all the faid marfhals and their deputies """" 
 fhall be bound to perform throughout their diflrift, the fame duties in relation 
 to the bufinefs of the fupreme court, as they ought, by virtue of this a6l, to 
 perform in relation to the bufmefs of their diflrift courts ; and the marffial at- 
 tending the faid court fhall receive a reafonable allowance per day for fuch at- 
 tendance, to be adjudged and certified by the faid court. 
 
 And be it further enatted. That there fhall be no difcontinuance of any fuit, 40. Adionm- 
 procefs, matter or thing returnable to, or depending in the fupreme court, al- ^^^^f '^^ ^" 
 though a quorum of juflices fhall fail to attend at the 'commencement, or any 
 other day of any feffion ; but if a majority of them fhall fail to attend at the 
 commencement of any feffion, the marffial of the diflrid may adjourn the court 
 from day to day for three days fucceffively ; and if a quorum ffiall not attend 
 on the fourth, or having attended one day, ffiall fail to attend on a fubfequent 
 day of a feffion, the court ffiall fland adjourned to the court in courfe. 
 
 And be it further enaded, That no bail ffiall be required in any cafe depend- 4i- Bail. 
 ing before the fupreme court, without the fpecial order of the court. \_Note 23.] 
 
 And be it further enaded. That the executions to be iffued from the fu- ^^- ^"^^""o"* 
 preme court fhall be the lame as thole to be iflued from the circuit and diflria court, 
 courts : that the return days ffiall be appointed by the fupreme court in like 
 manner ; and that the fupreme court may, for good caufe, direct executions 
 to be iffued on judgments obtained in a diflricl or circuit court, to any other 
 diftrid or circuit. 
 
 And be it further enacled. That it ffiall be lawful for either party in any 
 a£lion or fuit, in law or equity, depending in any diflricl court, to petition a 
 judge of the circuit court of tiie circuit in which fuch diftrift lies, to remove the ^'^' 
 fame to the faid circuit court to be holden in the faid diflrid : and if it ffiall 
 appear to the fatisfadion of the faid judge, that there is good caufe for a re- 
 
 G
 
 [ »4 3 
 
 maval, and that the cirucit court hath jurifdi6tion thereof, the faid judge may 
 dired the clerk to iflue a certiorari for that purpofe. But the faid judge (hall, 
 if .he fee caufe, require notice to be given of the faid petition to the adverfe 
 party, his agent or attorney, before he decides thereon ; and (hall be firft fatis- 
 fied, where the plaintiff petitions for a removal, that the caufe aifigned for 
 removal has arifen fmce the fuit brought, or vi^as unknown to him at the time 
 of bringing the fame : And the faid circuit court may at any time, for good 
 caufe, remand the faid fuit or controverfy to the diftri£t court, by procedendo. 
 That the juflices of the fupreme court fhall have like power to direft a certiorari 
 to the circuit court, and the fupreme court to remand by procedendo^ in all 
 cafes, in which, by the Conftitution of the United States, the fupreme court 
 ^as original jurifdiction. That a certiorari may alfo iifue from any circuit 
 court of the United States, for the removal of any fuit in law or equicy, de- 
 pending in any Hate court within the circuit, to the circuit court, under the 
 following regulations. 
 
 1. The faid fuit fhall be cognizable by the circuit courts, with refpeft to 
 -^-alue, and to the party or parties, or to the fubject. 
 
 2. The defendant may at any time before trial, obtain a certiorari from the 
 clerk of the circuit court for the removal, upon filing with the clerk of the 
 circuit court, an atfidavit, that he believes the faid fuit to be of a nature cog- 
 nizable in the faid court. 
 
 3. The circuit court fhall, at the commencement of every term,dire£l: the fuits 
 thus removed to be firfl calkd ; v/hen the defendant fhall juftif)^ fuch removal 
 by latisfa£tory proofs, on the pain of having the caufe remitted by procedendo, 
 
 4. If on the trial, the court fhall be of opinion, that the caufe alledgedfor 
 the removal was groundlefs, the defendant"; fhall pay the coils of the fuit, let 
 the >svent thereof be what it will. 
 
 5. To prevent removals merely for the fake of delay, it fhall be the duty 
 of the circuit courts to expedite the trial of a fuit thus removed, by the moft 
 effectual means confiflent with a full defence. 
 
 6. The bail given in a flate court, fhall (land bound in the circuit courts. 
 
 7. A plaintiff in a ftate court may in like manner, and under a like penal- 
 ty of cofts, obtain a certiorari for the removal of a fuit from a flate court to 
 the circuit court, upon filing with the clerk of the circuit court an affidavit, 
 as is above directed in the cafe of a defendant ; and alfo declaring in that afli- 
 ilavit, that the caufe alledged for the removal, did not exifl, or having exifled, 
 was not known to him at any time before the commencement of the term of 
 the circuit court next preceding the application of the certiorari. 
 
 4*. Appeals And be it further enaded. That in appeals and writs of error, the follow- 
 
 and w.iisofer- jng rulcs fhall be obferved. 
 
 '°'- 1. Njo appeal fhall be granted from the judgment or decree of any court of 
 
 the United States to any other court of the United States, unlefs fuch judg- 
 ment or decree be final, as aforefaid, and amount to the value herein after 
 expreffed for a writ of error. 
 
 1. Every appeal fhall be prayed at the time of rendering the judgment, 
 fentence, or decree.: but in cafes of admiralty or equity, the circuit or fu- 
 preme court, or any judge thereof, may upon caufe fhewn, direct fuch appeal 
 in fix months thereafter. 
 
 3. The perfon appealing fhall, by himfelf, or a refponfible perfon in his 
 behalf, in the office of the clerk of the court, from whofe judgment, fentence, 
 or decree, the appeal is prayed, give bond and fufficient fecurity, to be iip- 
 proved by the court, and within a time to be fixed by the court, to the ap- 
 pellee for the due profecution of his appeal. 
 
 4. The penalty of the faid bond ihall be in a reafonable fum, in the difcre- 
 tion of the court.
 
 C »5 ] 
 
 5. It fhall be the duty of the appellant to iodge an authenticated copy of 
 the record, before the expiration of the fecond term, after the appeal fhall be 
 entered, in the clerk's office of the fuperior court ^; or elfe it fhall Itand dif- 
 miifed, unlefs further time fhaU be granted by the court, before the end of 
 fuch fecond term, for lodging the fame. 
 
 6. The plaintiff in error ihall affigii errors upon matter of law only arifmg 
 on the face of the proceedings. But nothing herein contained fhall be con- 
 ftrued to affed a writ of error brought upon the grounds of a writ of error 
 coram vobis. \_Note 24.] 
 
 7. If the judgment or decree be affirmed in the whole, the appellant fliall 
 pay to the appellee ten per centum on the fum due thereby, befides the cods 
 on the original fuit and appeal. 
 
 8. If the judgment or decree be reverfed in the whole, the appellee fliall 
 pay to the appellant fuch cods as the court in their difcretion fliall award. 
 
 9. Where the judgment or decree fliall be reverfed in f>art, and affirmed in 
 parr, the cods of the original fuit and appeal fliall be apportioned between the 
 appellant and appellee, in the difcretion of the court. 
 
 I o. The circuit and fupreme courts fliall in cafe of a partial reverfal, give 
 fuch judgment or decree as the difl:ri(ft or circuit courts, as the cafe may be, 
 ought to have given. 
 
 1 1 . On appeals of writs or error. It fliall be lawful for the fupreme court, 
 or the circuit courts refpdively, to iffue execution, or remit the caufe to the 
 circuit or diftrid: courts, as the cafe may be, in order that execution may be 
 there iflued, or that other proceedings may be had thereupon. 
 
 12. Writs of error fliall be iffued ex debito juJiiticB except in capital offen- 
 ces, provided that the judgment, exclufive of coils, fliall amount to 
 dollars, in a diftrid court, or dollars, in a circuit court, or relate to 
 a franchife or freehold of the value of dollars, in a difl:ri£t court, or 
 
 dollars, in a circuit court : and no writ of error fliall iffue in a capi- 
 tal offence ; nor fliall a writ of error be a fuperfedeas, unlefs fome judge of the 
 circuit or fupreme courts, as the cafe may be, after infpeding a copy of the 
 record, and being of opinion that there is fufficient error therein for reverfing 
 the judgment in whole or in part, fliall certify the fame ; in which cafe, the 
 clerk ifluing the faid writ, fliall endorfe on the faid writ of error, that it fliall 
 be a fuperfedeas, and it fliall be obeyed as fuch accordingly. 
 
 13. And it fliall be alfo neceffary, before a writ of error fliall operate as a 
 fuperfedeas, that bond vnth fecurity to be approved by the clerk of the court 
 iffuing the faid' writ, fliall be given in the fame manner, under a like penalty, 
 and the plaintiff in error fliall lodge an authenticated copy of the record, under 
 the fame regulations, and the parties in error fliall befubjedt to the fame judg- 
 ment and mode of execution, as is already direded in the cafe of appeals. 
 
 1 4. A writ of error fliall not be brought after the expiration of five years 
 from the paffmg of the judgment complained of : but where a perfon thinking 
 himfelf aggrieved by fuch judgment, fliall be an infant, feme covert, non com- 
 pos mentis, or imprifoned, when the fame was paffed, the time of fuch difa- 
 bility fliall be excluded from the computation of the faid five years. 
 
 15. Whenfoever the court before which an appeal or writ of error is heard, 
 fliall be divided in opinion on fuch hearing, the judgment, fentence, or decree, 
 fliall be affirmed. [Notci^.'] 
 
 And be it further enacl:ed,That all the faid courts of the United States fliall 4^. Pawer? and 
 have power to grant new trials, according to the principles of law : to inipofe ''"^" o^ 'he 
 and adminifl:er all neceflary oaths or affirmations ; to punifli by fine or impri- 
 fonment, all contempts of authority in any caufe or examination before the 
 fame ; to eftablifli all neceffary rules, (fubjed in the cafe of the dlfl:rid and cir- 
 cuit courts, to the fupreme court as aforefaid) in conformity with the Confti-
 
 C 26 ] 
 
 tution and laws of the United States : And that the proceedings of every day, 
 during a term, fhall be drawn at full length by the clerks of the feveral courts, 
 againft the next fitting thereof; and fuch corrections as may be neceffary, 
 being firft made therein, they (hall be figned by the prefiding juflice, or in the 
 cafe of a diftridl court, by the diftrift judge of the diftrift : that when any 
 caufe fhall be finally determined, the clerks of the feveral courts (hall make a 
 complete record thereof: and that all writs, precepts and fummonfes, ifiuing 
 from any court, fhall be under the feal, and figned by the clerk of the fame, 
 and fhall bear tefte in the name of the chief juflice for the time being. 
 
 44. Of juries. -And be it further enacted, That juries fhall be fworn and impannelled in all 
 
 cafes prefcribed by the Conflitution of the United States and the common law: 
 that iffues of fad arifing in any caufe in chancery, may, under the direftion 
 of the court, be tried at the bar of the courts of the United States, by a jury 
 there impannelled : that in other cafes of equity, and in civil caufes of admi- 
 ralty and maritime jurifdiftion, the court alone fliall decide : that juries fhall 
 be fummoned by writs of venire facias, to be direded to the marfhal or his 
 deputy, or any other perfon to be appointed by the court, in cafe neither the 
 faid marfhal nor his deputies be indifl'erent perfons, or they be interefled in 
 the event of the caufe : that challenges fhall be according to the courfe of the 
 common law : that the qualifications of jurors fhall be the fame as thofe of 
 jurors allowed to be fworn upon queftions of freehold in the flate wherein the 
 court fits : that the diflridl and circuit courts, fhall at every term, direft the 
 number of jurors to be fummoned for the fucceeding term; and the juries for 
 each fuit fhall be determined by ballot : that when from any caufe, juries 
 fhall not be previoufly fummoned, or being previoufly fummoned, fhall fail to 
 attend, by-flanders may be fummoned to complete the pannel, and the court 
 may impofe fuch fine on every delinquent v^^ho has been fummoned, as the laws 
 of the fiate impofe in fuch cafes : Provided always, that in criminal cafes, ju- 
 ries of the vicinage Ihall be fummoned, according to the courfe of the com- 
 mon law. 
 
 That twenty-four freeholders fhall in like manner be fummoned to each 
 term of a diflrict and circuit court, to compofe a grand jury, on whom, or any 
 of whom, failing to attend, the court may impofe fuch fine as the laws of the 
 ftate impofe in fuch cafes ; and that if a fufficient number of thofe fummoned 
 do not meet, to compofe a grand jury, at the time appointed, or if having 
 met, any of them fhould abfent himfelf without permiffion, fo as to leave the 
 number too fmall for a grand jury, the court may direft an adequate number 
 of by-flanders to be fummoned to fupply the places of the abfent. 
 
 That all jurors, grand or petit, attending any court of the United States, 
 fliall be allowed for every day's attendance thereon, and 
 
 for every twenty miles of travelling, and their ferriages : that the allowances 
 to the grand jurors fliall be paid by the treafury of the United States : that in 
 the bills of cod in every jury-caufe, fhall be taxed and accounted 
 
 for to the faid treafury ; and the allowances to the petit jurors fhall alfo be 
 paid by the faid treafury. And jurors coming to, attending on, or returning 
 from any court of the United States, fhall be privileged from arrefls in civil 
 cafes, one day being allowed for every twenty miles from their places of 
 abode ; and all arrefls contrary hereto, fhall be void. 
 
 And be it further enabled. That in all the courts of the United States, the 
 
 45. Tellimo- j-uigs of evidence, fo far as they relate to competency and credibility, fhall be 
 
 the fame as at common law : that for good caufe, the courts of the United 
 States, or any judge, may grant commiflions for the examination of witnefies : 
 and that the clerks of the feveral courts, when any witnefs fhall be about ta 
 depart from the diflridl in which a fuit is to be tried, or fliall by age, ficknefs, 
 or otherwife, be unable to attend the court ; or where the claim or defence of
 
 C 27 ] 
 
 any party, or a material point thereof, fhall depend on a fingle witnefs, may 
 upon affidavit thereof, iffue a commiffion for taking the depofition of fuch wit- 
 nefs de bene elTe, to be read as evidence at the trial, in cafe the witnefs fhall 
 then be unable to attend ; but the party obtaining fuch commiffion, iliall give 
 reafonable notice to the other party, of the time and place of taking the depo- 
 fition. And all witneffiss duly fummoned to any court of the United States, 
 fhall be privileged from arrefls in civil cafes, while coming to, attending on, 
 or returning from the fame ; one day being allowed for every twenty miles 
 from their places of abode : and all arrefts contrary hereto, fhall be void. 
 
 That fummonfes fhall be ifl'ued by the refpedive courts for witnefles in any 
 fuits depending in the courts of the United States : that if any perfon, fum- 
 moned as a witnefs, and attending the court, or attending the commiffioners 
 appointed to take his depofition, ffiall refufe to give evidence upon oath or 
 affirmation, as the cafe may be, he fhall be committed to prifon, either by the 
 court or the commiffioners, there to remain until he ffiall give evidence : that 
 any perfon fummoned as a witnefs, and failing to attend accordingly, ffiall be 
 liable to the action of the party injured by fuch failure : and that in a bill of 
 cofts, the charge of more than three witneiTes, for the proof of any particular 
 fiifl, ffiall not be allowed. 
 
 And be it further enaded. That wherefoever any perfon ffiall be duly charged 45. criimoaU. 
 before any judge or juftice of the United States, or juflice of peace of a ftate, 
 upon oath or affirmation, with any crime or offisnce againfl the United States, 
 the puniffiment whereof is fine, imprifonment, or corporal fuffering, not ex- 
 tending to death, it ffiall be lawful for the faid judge, juflice, or juflice of the 
 peace, to iffue his warrant, and demand bail of fuch perfon for his appear- 
 ance at the next court, whether a diflrift or circuit court, to be held at the 
 diflrid for the United States, having jurifdiclion in the cafe, or elfe he ffiall be 
 committed ; that upon the giving of fuch bail, the recognizance ffiall be forth- 
 with tranfmitted to the clerk of the faid court : that the witneffes ffiall be bound 
 by recognizance to appear and teflify againfl the faid offender, which fhall be 
 forthwith tranfmitted in like manner : that if for the want or refufal of bail, 
 the faid offender ffiall be committed to clofe cuflody, and it ffiall appear that 
 the offence is to be tried in another diftrid, it ffiall be the duty of the judge of 
 fuch diflrid in which he is confined, to iffue a warrant to the marffial thereof, 
 commanding him to remove the offender, at the expence of the United States, 
 to the diflritl where the trial is to be had ; and that bail may be given in the 
 cafes aforefaid, even after commitment. That wherefoever any perfon ffiall 
 be fo charged as aforefaid with any crime or offence againfl the United States, 
 the puniffiment whereof is death, it ffiall be lawful for the faid judge, juflice, 
 or juflice of the peace, to iffue his warrant for arrefling him : that the faid 
 offender may at any time before. trial, be admitted to bail by fome juflice of 
 the fupreme court or judge of the diflri£l court of the United States, and by 
 no other ; but the judge or juflice ffiall not admit to bail, without having due 
 regard to the nature and circumflances of the crime or offence, and of the evi- 
 dence and the ufages of law : that the witneffes ffiall be bound by recognizance 
 as aforefaid, which recognizance, as well as that of bail, ffiall be tranfmitted 
 as aforefaid. That in all criminal cafes, not otherwife provided for by fome 
 flatute of the United States, the procefs and modes of proceedings ffiall be the 
 fame in the difrrid and circuit courts refpedively, with thofe obferved in cri- 
 minal cafes in the flate included within the diflrid or circuit ; but that no in- 
 formation ffiall be filed, without the exprefs approbation of the court, on good 
 caufe ffiewn : And that every court rendering judgment in any criminal cafe, 
 may award execution thereupon. 
 
 And be it further enaded. That until it ffiall be otherwife provided by law, 47. Cofit . 
 the feveral courts of the United States ffiall be the judges of cofts ; and it ffiall be 
 
 H
 
 C 28 ] 
 
 / 
 
 difcretlonary in the courts to divide cofl:s between the parties, or for good 
 caufe, to compel either party to pay the fame, without refped to the event of 
 the fuit in which the faid colls Ihall have arifen, except where it is herein be- 
 fore otherwife directed. 
 
 48. Ri\les of And whereas the Conftitution of the United States, and the laws made in 
 dfcifion. purfuance thereof, and all treaties made under the authority of the United 
 
 States, are the fupreme law of the land : 
 
 Be it further enabled, That the laws of the feveral dates, fo far as the claim 
 of a plaintiff, or the defence of a defendant may depend thereon, in refped to 
 its merits, evidence or limitation of time, fhall, fubjed to the fupreme law 
 aforefaid, be rules of decifion : that in all pleadings, except in Umitations of 
 time, and in all trials, except in matters of evidence, and in the regulations of 
 the executions aforefaid, fuch ftatutes, as were made before the fourth day of 
 July, in the year one thoufand feven hundred and feventy-fix, for the amend- 
 ment of the law in thofe cafes generally, fhall alfo be rules of decifion : and 
 moreover, that the common law, fo far as the fame be not altered by the fu- 
 preme law, by the laws of particular ftates, or by flatutes, fhall alfo be a rule 
 of decifion. [Note 26.] 
 
 49. Attomics And be it further enafted. That in all the courts of the United States, the 
 and aitorncy. parties may plead and manage their own caufes perfonally, or by the afTiftance 
 genera . ^^ ^^^^ couufel or attornies at law, as by the rules of the faid courts refpeclively 
 
 fhall be permitted to manage and condudl caufes therein. And there fhall be 
 appointed in each diflrift, a meet perfon learned in the law, to a<5t as attorney 
 for the United States, in fuch diflri6t ; who fhall be fworn or affirmed to the 
 faithful execution of his office, whofe duty it fhall be to profecute in fuch dif- 
 trict all delinquents for crimes and offences cognizable under the authority of 
 the United States, and all civil adlions in which the United States fhall be 
 concerned, except before the fupreme court in the diflrift in which that court 
 fl:all be holden. And he fhall receive as a compenfation for his fervices fuch 
 fees as fhall be taxed therefor in the refpettive courts before which the fuits or 
 profecutions fhall be. And there fhall alfo be appointed a meet perfon, learned 
 in the law, to a6t as attorney-general for the United States, who fliall be fworn 
 or affirmed to a faithful execution of his office, whofe duty it fhall be to profe- 
 cute and conduft all fuits in the fupreme court in which the United States 
 (hall be concerned, and to give his advice and opinion upon queftions of law, 
 when required by the Prefident of the United States, or when requefled by 
 the heads of any of the departments, touching any matters that may concern 
 their departments, and fhall receive fuch compenfation for his fervices as fhall 
 by law be provided. 
 
 50. Repealing And be it further enadled. That all a6ls or parts of afts of the United States, 
 ciaufe. coming within the purview of this adl, fhalUbe, and the fame are hereby re- 
 pealed ; faving and confirming, however, all things under the faid a£ls or 
 parts of a6ts already done, or which may be done before the commencement 
 of this aft. 
 
 51. Com- And be it further enafted. That this act fhall commence and be in force on 
 
 mencemcm. ^}^g day of
 
 THIRD PART. 
 
 NOTES. 
 
 ft. IT TAD it been pvaElicable^ the laros refpe&ing the judiciary of the United States, would have 
 X. JL been declared to operate in fntes hereafter admitted into the Union, without the formality 
 of ajpecial aB. But it was not attempted j hecaufe it cannot be now forefen at what time or place 
 the diJlriB, court of the new Jlate ought to meet ; to what circuit it Jhall be attached ; at what 
 time or place the circuit court Jhall be held within it j nor what Jalary will be commenfurate with tlie 
 labours of the judge. 
 
 (2.) The fialed fejjions are reduced from four to two, partly to accommodate the difiriEl judges, 
 under the propofed augmentation of their trouble. It is probable that two of thefe fejfions will exhaujl 
 the civil bufinefsfor a long time, if not forever ; efpecially when we combine the kindred jurifdiflion of 
 the circuit courts. With regard to offences cognizable in the diftriEl courts, moft of them will be pro- 
 fecuted without an arrejl before judgment f except on non-appearance after fummons J or will be bailable 
 with cafes. Hence would any poffible procraflination be light in the fcaU. 
 
 To thofe who are acquainted with judicial proceedings, it is almoft needlefs to obferve, that it con- 
 tributes to regularity, the convenience offuitors, andperhapsfairnefs, to limit the continuance of feffions. 
 
 (3.) It may feemfuperfluous even to hint to courts, that public tourt-houfes, where attainable, ought 
 to be their forum. That every confidence may be fafely repofed in the judges, is a fa£l undeniable at 
 the prefent day. But in a judiciary Jy fern, which looks beyond the exiflence of thofe whofc integrity 
 ts nowjufily revered, the eye of the world ought to be one of the centinels ofjuflice. 
 
 Emergencies which may compel the removal of courts from fxed places of feffion, a'^e familiar to our 
 memory. A writ of adjournment is the inflrument of removal in the country from which we borroxa 
 mofl of our jurifprudence. Here the power of adjourning is divided between the prefident and the. 
 courts ; the prefident may order it in vacation, when the courts cannot affemblefor the purpofe ; and 
 the courts themfelves may adjourn, when the exigency breaks forth during their feffion. 
 
 (4.) Some exclufions of theflate fourts are delineated in the original law. It is an honorable evi- 
 dence of candor explicitly to announce the rights of the federal judiciary. Diffenfions, if not crufhed in 
 the beginning, will be more quickly terminated byfuch a meafure. For by afcertaining the ultimatum 
 of thofe exclufions, and of the federal jurifdiBion, every contefl of this kind may be brought to an im- 
 mediate tefl. 
 
 (5.) According to the law of nations, the diplomatic reprefentatives of fovereigns cannot befued in 
 the courts of a foreign potentate ; but confids, except when they are fheltered from their junfdiCtion by 
 aBual convention, poffefs nofuch immunity. 
 
 (6.) How, it may be afked, can any debt, having a federal quality, but below a particular fum, be 
 banifhed from the federal jurif diction ? — The following reply is ojfered : 
 
 1. The Conflitution has undertaken to defcribe only the kind of perfonsand things which fhould have 
 accefs to the federal courts, not to eflimate the value in debate. 
 
 2. Thefupremz court, though inherent in the Conflitution, was to receive itsfrft motion from Con- 
 grefs J the inferior courts mujl have Jlept forever, without the pleafure of Congrefs. Can the fp here 
 of authority over value be more enlarged ? 
 
 3. Without this conflruElion, courts mufi be ordained for the recovery of every trifling fum, which 
 the unavoidable expences attending it, might exceed tenfold. This therefore, never could have been in- 
 tended by the Federal Convention. 
 
 Farther j without a claufe againfl abfent debtors, great injuftice may be done to refdent citizens. 
 Under the name of abfent debtors are included, as well thofe who have never been inhabitants of the 
 United States, as thofe who, having been inhabitants, expatriate themfelves or abandon a flate. An 
 equal partition of the debtor's property among his creditors, being more equitable, than that any one 
 fhould feize the whole, a common attachment is not recommended. But Congrefs will perceive that this 
 fubjeEl muft remain mutilated, until they eflablifh, if not uniform laws of bankruptcy throughout the 
 United States, at leafi an aEl of infolvency. 
 
 (7.) It is the direElfenfe of the Conflitution, that there fhould be a chancery. A proper plan then 
 mufi be devifedfor it. That upon which mofl of theflates have praElifed for years, and whofe theory 
 wants no explanation, challenges our acceptance. If it were ever liable to the imputation of having 
 ufurpedonthe common law, its effeEls are now very falutary , and itfelf a friendly auxiliary to the 
 common law. Upon thefe ideas, the federal jurifdiBion in equity is moulded. Indeed, unlefs the leni- 
 ent properties of equity were to be lodged by lawfome where, the courts of common law would be con- 
 tinually inventing fubtleties or fBions by which to engrofs them. 
 
 (8.) This claufe will debar the diJiriEl court from interfering with the judgments at law in theflate 
 courts. For if the plaintiff and defendant rely upon theflate courts, as far as the judgment, they 
 ought to continue there as they have begun. It is enough tofplit the famefuit into one at law, and 
 another inequity, without adding a further feparation,, by throwing the common law fide of the quefli- 
 on into thejtate courts, and the equity Jide into the federal courts.
 
 C 30 ] 
 
 (g.) This reJlriEli»n affumes for its foundation, that cafts ariftng under the. Confiitution, laws and 
 treaties of the United States, between any perfons or bodies whatfoever, not fpecially protected by the 
 law of nations, are not without the reach of the judiciary power of the United States. For the fubfe- 
 quent defcriptions of perfons, and bodies, fpread,inflead of contradling the jurifdiElion. But the dig- 
 nity of the United States, and of a particular fiate, ought to exempt themfrom the cognizance of afn- 
 gle judge. But, can the United States, or a particular fiate, be defendant ? To be a party, as is the 
 phrafe of the Conftitution, is to be a plaintiff or defendant. Do the rights of fovereignty forbid tht 
 latter ? They do not, where thefovereign becomes defendant with his own confent. The Confiitution 
 isfuch an ad of confent, done by the United States and the individual ftates ; unlefs it be interpreted^ 
 that the individual flates may be a party now, only as they were before, to wit, asfovereigns, and that 
 the United States Jhould be on the fame footings To this may be oppofed the facility with which the 
 Confiitution might havefuppreffed any ambiguity, by ufing the word ^'•plaintiff," infiead of '-'■ party :" 
 the propriety of informing public bodies, that though they are political agents, they are not abfulved 
 from moral obligation ; and the licence which is fomjetimes given by a fovereign, to fcrutinize his pre- 
 tentions before his own courts. But the fiumbling block is, that neither t he United States nor the in- 
 dividual ftates, can be compelled to be jufi, if inclined to be obflinate in injuflice. Let it rather be be- 
 lieved, that a judgment paffed againfi them by a conftitutional tribunal, would be unre.luElantly obeyed. 
 If, in defiance of its duty, as a member of the Union, afiatefhould refvfe compliance, the general go- 
 vernment will doubtlefs add its earnefi remonfirances. What remedy lies beyond thefe bounds, is afe- 
 rious intricacy. But without an effectual one, the Confiitution would be unnerved, where it ought to 
 beftrong. 
 
 If in legal analogy an execution were to be fought, a difiringas corref ponds more aptly than any 
 other, if as a difiringas would operate upon public property, in which every individual has an in- 
 terefl, it were better immediately to apply to individuals pro rata, the colleElion may be made in the ufu- 
 al form. It is the province of policy, however, to difcern the delicate path ; and as fuch, it is left 
 zoithout other remarks to the Houfe. 
 
 ( 10.) This clo-ufefuppofes that the diflriB, courts will hold their flatedfejfions at the fame place with 
 the circuit courts : That a criminal may be tried by thefirft diflri£l court which fits, if he defires it, 
 unlefs a bill fhall have been found, or an arraignment made, or fome fimilar flep taken in, the circuit 
 court. The difcretion with which the attorney of the diftri(l is indulged, is not ?nore than is due to his 
 office. He will naturally aim at the highefl fatisfaUion for the violated laws of the United States,, 
 which the tefUmony will, in his opinion permit, and will therefore indiSl, when neceffary in the circuit 
 court. And the cafes themfelves, thus undefined, will not often, if ever, be of a very atrocious caff. 
 
 (11.) The following are examples of the cafes in No. 7, 8, and 9. 
 
 An action of affault and battery fhall not be brought againfi an inhabitant of Pennfylvania, in any- 
 difirid court but that of Pennfylvania, unlefs, iSc. 
 
 An aBion on a bond given by an inhabitant of Pennfylvania to another perfon, fhall not be brought 
 in the diftrid. court of Pennfylvania, although it may have been affigned to another inhabitant ef 
 Pennfylvania, except, &c. 
 
 A defendant Jhall not be arrefied orfummoned in Pennfylvania, in afuit to be tried in the difiriEl 
 court ofNew-Jerfiy, except in the next example. 
 
 An inhabitant of Pennfylvania conneEled in inter eft with an inhabitant of New- Jerfey , may with re- 
 fped to that interefl, befued in Jerfey. 
 
 (12.) Afpedalfeffion mufl generally be held for admiralty cafes and feizures, becaufe they fpring 
 up very irregularly, and will not fuffer delay ; they are alfo of confiderabU length, and would difiurlf 
 the whole circle of bufnefs, unlefs interdided to be tried then. 
 
 (13,) With this power every jufiice of the peace is clothed, as a guardian of the public quiet, 
 
 (14.) The viijbehaviour of the deputies may befo grofs, as to fiifle every tendernefs for the charaBtr 
 of the officer ; andjherefore the judge is armed with authority to flop his improper career, 
 
 (15.) The perfonai liberty of a citizen is ajubjecl of prenous mcment J and as in government un- 
 jufily to abridge it, wonld be denominated tyranny, fo not to urefifrom individuals an opportunity of 
 cramping it, where a veto can be impofed by law, would be almofi a traiterous negled. With this 
 view, bail has been thus regulated. If every plaintiff inay exact bail, it will be exaBed in all cafes. 
 If no plaintiff may, or if a judge is fir ft to be petitioned, jufiice will be eluded in many. There is then 
 •no choice, but to vefi the clerk with difcretionary powers on this head (which would be unufual, and 
 perhaps unfafe) or to prefcribefovie rules like the foregoing. 
 
 (16.) Thefe four forms of execution are intimately known to every lawyer in the United States, be- 
 ing among the elements of his fience, and having their effence fettled by adjudications. Perhaps at a 
 day not far remote, it may be thought an acceffon to freedom and to commerce, to emancipate the perfon 
 of a debtor from the grafp of his ireditor, and to fubfiitute lands under due caution, againfi frauds 
 and oppreffions, for the payment of debts accruing after a certain time. The refpite of execution is to 
 afford an opportunity to obtain a writ of error, or indeed an appeal. 
 
 (17.) The requiftiion that the decree or judgment fiiall be final, will abolifh a variety of appeals or 
 •writs of error oh the fame fubjeB. For if every interlocutory matter would bear an appeal or writ of 
 trror, afuit would not be finijhed in an age. Befides, a miftake in one part of a caufe is frequently 
 reBified in another. Nay, the party whom the mifiake has prejudiced, may j^ ill be viBortous at lajl. 
 Nor will the dif contented party be difabledfrom reaping the fame advantages after final judgment, as 
 before. 
 
 Let it be here remarked, that appeals and writs of error have fame different confequences : Appeals 
 arrefiing the judgment immediately, and writs of error after fame ddays and formalities. Appeals are
 
 C 3' ] 
 
 allowed only in admiralty and revenue and equity caufes. In them, Hit merits are exhibited intire to 
 to the revifionary tribunal. But, the real merits have mojl frequently been decided againji the plain- 
 tiff in error. Hejlies to the higher court with the fails of the cafe found againfl him, and without a 
 chance ef having them re-examined, unlefs on the face of the proceedings a capital blunder appears. 
 The appellant and plaintiff in error, therefore, fiand not on the fame line of favor. 
 
 The mode of giving tejtimony in equity, is by depofitions : It is alfo praHifed in (he admiralty^ to 
 examine witneffes viva voce, and commit their evidence to writing. In our inter courfe with foreign 
 nations, an expofition of the conduB, of our admiralty, may be frequently decent and vfeful. Perhaps 
 therefore, the original law is exceptionable in allowing tl judge, whofe opinion is to be canvaffed, the 
 privilege of placing the caufe in any attitude which fquares beft with that opinion. 
 
 (18.) This power is granted in behalf of perfons confined onfufpicion of crimes. The circuit courts 
 may of their own motion, have a gaol delivery earlier than the returns of the flated fejions, or thefa- 
 preme court may command it,fhould they be urged by any imminent circumjlance. 
 
 (ig.) On thefuppofition, that the incrcafed compenfation to the difiriA judges would be a per diem 
 allowance according to their attendance, the f am would not be an obflacle of confequence ; and the admi- 
 ralty bufinefs originating while they arefrcm home, may befo adjufled by their own regulations, as not 
 tofuffer by their ahfence. 
 
 (20.) The United States are permitted to befued in a circuit court, while particular ^ates are fua- 
 ble only in the fupreme court. This difference is made, becaufe the Conftitution demonftrales a peculiar 
 care offuits againft aftate, by giving original jurifdiElion in them to the fupreme court. Confuls and 
 vice-confuls , being coupled wxthfiates, in this particular ought alfo to be confined to the fupreme court, 
 were it not for the inconvenience offuch inflitution. 
 
 (21.) Clerks and marfhals are indifpenfable and confidential ojicers. They ought to have talents^ 
 and emoluments equal to a livelihood. Their pofls now produce mere trifles. But being bound to be 
 always in the way, and at call, they are precluded Jrom any gainful employment at a diftance abroad. 
 The allowances which the circuit courts would make to them, zcould be abundantly replaced by the public 
 fhart of fines and forfeitures. But this fund was not defignated, hecaufext refis the renumeration of 
 public fervants upon the delinquencies of its citizens. Additional duties may from time to time be thrown 
 upon them, which will balance this flipend. 
 
 (22.) The jurifdiB.ion of the fupreme court is expreffed nearly in the words of the Conftitution. It 
 was wifhed, that where the United States were fued, the caufe could be confined to the fupreme court, as 
 is the cafe with a particular fi ate. But it is doubtful whether this, being one of the infiances in which 
 the fupreme court is declared to have appellate jurifdiciion, it can have original jurifdichon alfo under 
 the words of the Confiitution. 
 
 The formation of writs is a branch of judicial duty. Rales of praEUce belong to the authority of 
 every court, and their other incidental powers add to that authority. The tranfition from theft to the 
 Juperintending of the whole courfe of proceedings, will not therefore be confidered as too great. But it 
 is advifablt, that every fyftem of praElice throughout theflates fhould be confulied, in order that the 
 general proceeding fhould be accommodated to the habits of the different fates, as nearly as inay be. 
 The judges of the fupreme court have already hadfomc experience on this head, and can therefore better 
 execute the work, than any other perfons. It would not be difficult for aii individual to offer afcheme 
 apparently good. But he would probably feel too great a bias to the practice to which he had been ac- 
 cuflomed j and the Houfe would alfo be under fome perplexity how to reconcile the ufages of the fates. 
 
 (23.) Bail is not needful, except in cafes of original jurisdiction. Of the fe, the number inthefu- 
 freme court is fmall, and they willfcarcely ever be of fuch vehemence, as that the pofponemeat of a 
 quefiion of bail, until the court can be moved, fiould be injurious. 
 
 (24.) The plaintiff in error, is limited to errors in law. This is agreeable to the practice which 
 Jiasfo much influence on our judicial proceedings. For after a jury has pronoun' ed thefaHs in iffue, 
 and a new trial has either not beenfolicited, or has been rejeEted, on the principles of the common law, 
 no court or jury ought to agitate the fame facts, unlefs the judgment ffould be reverfed by a fupenor 
 court. On the other hand, in equity and admiralty cafes, every faEi as has been already obferved, is be- 
 fore thefuperior court in the fame manner, as it was before the inferior, and may therefore befubmitted 
 with propriety to thefuperior court. 
 
 NewfaEls, and new proofs on appeals, are here difcarded, on account of the nuinberlfs frauds which 
 viay be covered under the ad-miffion of them. 
 
 (25.) Upon an equal divifion of an appellate court, it is prefumable, that the inferior court was 
 right. Without this rule, an appeal cr writ of error may be hung up in the fupreme court for many 
 years. 
 
 (26.) The Confiitution, laws and treaties of the United States, are the fuprevie law; that is, they 
 will controul on federal fubjeEls, every other law. 
 
 They will particularly controul the laws of the fever al fates : whether confifiing of their own origi- 
 nal legislation, the common law, or the ftatute law, exprefsly or tacitly adcypted. 
 
 Such is the extent of mere power. But it may be affirmed, that it will not be exercifcd, becaufe it 
 ought not, where the the claim of a plaintiff, or the defence of a defendant, rcfs upon a valid law of a 
 Jlate. 
 
 This may happen — 1. In perfonal rights ; 2. Rights of property : 3. Torts; and 4. Sometimes 
 even in offences, upon the jnerits, the evidence, or a limitation of time. 
 
 But beftdes thefe, are three other points, not tin&ured by the particular cafes, but governed only by 
 the clafs of aElions, to which the individual cafe belongs : pleadings, with the exception of limitation ; 
 trial, with the exception of evidence ; and executions. 
 
 I .
 
 C 3^ ] 
 
 The common law is confejfedly incompetent on the/e topics. The alternative then is, between thejiate 
 laws, and thejlatutcs. 
 
 The latter have the advantage in uniformity, which the judiciary of the United Stales ought to cul- 
 tivate ; and without it, a citizen who is a debtor in onefiate, may, although a creditor to an equal 
 amount in another, pojfibly be ruined. 
 
 Butfome cafes will not be influenced by fiate laws ; to wit, thofe of a foreign and tranfitory nature, 
 cs a bond executed in Europe. Thefupreme law may alfo be fiknt. The lex loci will then be admit- 
 ted in its cufiomary degree ; and where it ends, the common law and flatutes aforefaid will enter into 
 the queflion. 
 
 But the Attorney-General conftders thefe expedients as merely temporary ; beraufe he trufls, that the 
 neceffity of a federal code is tooflriking to efcape the attention of the Houfe. That it muft be a work 
 of time and dijiculty, is an exhortation immediately to commence it. 
 
 Uponfo grand an undertaking, the pra^ice of nations has been variant j fome having direEled the 
 
 materials of a code to be reported in the firfi inflance, and others a complete digefl. As too much lei- 
 
 fure andrefleElion cannot be beflowed onfuch-acompofition, the former mode is preferable : efp'ecially 
 
 fince the freedom of correBing the matter, may be fettered by thefolemnity of a law, when conneBed 
 
 with a great whole. 
 
 Biit arduous as this effort mufl be, it is not boundlefs. It would probubly be pointed to thefollow' 
 ing leading obje&s : i. The provifions which already exiji by the Conjtitution and the federal laws : 
 2. Such laws as may fiill be neceffary for the further execution of the Conflitution, and the completion 
 of federal policy : 3. The common law, and flatutes : And 4. The law's of the feveral flates,as involved 
 in queflions arifing therein. 
 
 Thefe preliminaries having obtained thefanHion of Congrefs, the reducing of them into laws will be- 
 come more eafy and accurate. 
 
 PRINTED BY FRANCIS CHILDS AND JOHN SWA.INB. 
 
 This is an exact photographic facsimile of the FIRST REPORT 
 OF THE ATTORNF.Y GENERAL OF THE UNITED 
 STATES, and was printed at Philadelphia by Francis Childs 
 and John Swaine in 1791 (Evans 23909) . 
 
 We wish to acknowledge the cooperation of the American Anti- 
 quarian Society in lending us the original from which this 
 reprint was prepared. 
 
 Of this edition 295 numbered copies have been printed by The 
 Luther M. Cornwall Company of New York City. 
 
 This is copy number
 
 D 000 015 588 7