Art. 2.

under such regulations as the Congress shall make." The CH. 187. trial of all crimes except in cases of impeachment, is by jury, and in the state in which committed; but if not committed in any state, the trial of it is where Congress by law directs. And by the amendments of this constitution, in all capital cases, the accusation is by indictment found by a grand jury, and in all suits at common law, where the value in dispute exceeds $20, the right of trial by jury is preserved; "and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This last clause seems to exclude, in such a manner, that Congress cannot enact otherwise, a trial, or reexamination, of a fact, in a writ of review; as this is uknown to the common law. In this clause the framers of this constitution appear to have been over cautious; no sound reason is perceived, or has been stated, to shew why all facts tried by a jury, shall be so absolutely re-examined according to the rule of the common law, that no law can be enacted, even by Congress, to institute any other mode of re-examination in such cases. The judicial act of Congress must be restrained by the constitution; as in ejectment between two citizens of Maryland, for land there, and the deft. sets up a title under a British subject, and alleged it is protected by treaty, and the State court decided against it. Held, the Supreme Court of the United States has no jurisdiction in the case, because none by the constitution. 5 Cranch, 344, Owings v. Norwood.

By the first section of this act, the Supreme Court is es- Act of Contablished, to consist of a chief-justice and five associate jus- gress, Sept. tices; any four of them a quorum, and annually hold their 24, 1789. terms at the seat of government, the first Monday in February and August. By section six, one justice may adjourn the court from day to day; by section seven, may appoint their clerk; by section eight, their oaths are prescribed; and by section thirteen, the jurisdiction of this court is settled, and is exclusive in all controversies of a civil nature, where a state is a party, except between a state and its citizens and except only between a state and the citizens of other states, or aliens, in which latter case it shall have original, but not exclusive jurisdiction; and shall have exclusively all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have, or exercise, consistently with the law of nations; and original but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice-consul shall be a party; and trials of issues in fact in the Supreme Court in

CH. 187. all actions at law, against citizens of the United States, shall Art. 3. be by jury." This court has "appellate jurisdiction from the Circuit Courts, and courts of the several states," accordThe Federal ing to the provisions of this act, as stated in the next article. courts have a As to prohibitions, and writs of mandamus, admiralty &c. common law jurisdiction; see Ch. 186. By subsequent acts of Congress this court has many years consisted of seven judges.

jurisdiction

in criminal

cases.

§ 4. And by the twenty-fifth section of this act, this Su4 Dallas, 420, preme Court has power to correct, on error, the decisions of none if both the highest State courts, where they decide against a title parties be claimed under Federal law.

aliens.-Id.

420.

1 Cranch, rules of

court, 15, 18.

Act of Congress, Sept. 24, 1789.

Sect. 5, 6.

Section 7.

Section 11.

§ 5. The clerk of this court must keep his office at the seat of government: cannot practise as a lawyer in it, nor suffer any record to go out of his office.

ART. 3. Circuit Courts.

§ 1. By the fourth section of this act, the United States were divided into three circuits, Eastern, Middle, and Southern; these have been varied from time to time, as states have come into the Union, and its population has varied. A circuit court was provided for in each, to be holden twice a year in each district in each circuit, a district usually being a state. By this section each circuit court consisted of two justices of the Supreme Court, and the district judge of the district; any two of them was a quorum; but no district judge can "give a vote in any case of appeal, or error, from his own decision, but may assign the reasons of such his decision." The times and places of holding these circuit courts have been, and are, often varied by acts of Congress; hence, not material to name them. By the same section, these courts have power to hold special sessions for the trial of criminal causes, at any other time, at their discretion, or at the discretion of the Supreme Court. One judge may adjourn from day to day; or if none present, the marshal may, until a quorum be convened. Special adjournments and continuances provided for. See said sixth section.

The clerk of the district court is clerk of this circuit court in the district, and takes the oath of office, and gives bonds with sureties.

§ 2. The powers and duties of the circuit courts are designated, partly in the 9th section of the said act, already cited, Ch. 186, a. 10. By the 11th section of this act, the circuit courts have original cognizance concurrent with the courts of the several states, of all suits of a civil nature at common law, or in equity, "where the matter in dispute does not exceed $500, and the United States are plts. or petitioners; or an alien is a party, or the suit is between a citizen of the state, where the suit is brought, and a citizen of another

state," and have "exclusive cognizance of all crimes and offences cognizable under the authority of the United States," except &c; "and concurrent jurisdiction with the district courts, of the crimes and offences cognizable therein." But no person can be arrested in one district, for trial in another, in any civil action, before a circuit or district court; and no civil suit in either court can be brought against an inhabitant of the United States, by any original process in any other district but that whereof he is an inhabitant; or in which he shall be found when sued; and the assignee of a contract can have no other action on it than the original contractee can have, except in cases of foreign bills of exchange; "and the circuit courts shall also have appellate jurisdiction from the district courts under the regulations and restrictions" established by this act.

CH. 187.

Art. 3.

deft. &c.

32 &c.

§ 3. By this section, if a suit be commenced in any State Section 12.-court against an alien, or by a citizen of the state in which See who is the suit is brought, against a citizen of another state, and the Cabot v. matter in dispute exceed $500, then provision is made for Bingham, carrying the cause into the circuit court next to be held in Ch. 227, s. the district &c.; and attachments hold to final judgment. So where title to land is claimed under another state, of the value of $500; "and the trial of issues in fact, in the circuit courts, shall in all suits, except those of equity and of admiralty and maritime jurisdiction, be by jury." See the 19th and 21st sections of this act, stated above, Ch. 186, a. 10.

Construction in Virginia of this 12th section; 4 Hen. & M. 173, 180, Brown v. Crippin & al. Held a matter of right in the deft. so to remove on complying with the terms prescribed; and if the inferior court refuse to allow the removal, it is compellable to do it by mandamus from the supreme court of the state, not circuit court.

§ 4. By this section, final decrees and judgments, in civil Section 22. actions, in a district court, where the matter in dispute exceeds $50, may be re-examined, reversed, or affirmed, in a circuit court, holden in the same district, upon a writ of error, therewith being returned an authenticated transcript of the record, and assignment of errors, and prayer of reversal, and citation to the other party; "and upon a like process, may final judgments and decrees in civil actions, and suits in equity in a circuit court, brought there by original process, or removed there from courts of the several States, or removed there by appeal from a district court, where the matter in dispute" exceeds $2000, be re-examined, reversed, or affirmed, in the Supreme Court. Foreign attachment lies not where the trustee is of another State, and not found out of it. 2 Dallas, 396.

CH. 187.
Art. 5.

Judicial act

of Congress of Sept. 24,

1789.

Judicial act

Sept. 24,

1789.

§5. By this act, one judge of the Supreme Court only, was enabled to hold a circuit court, instead of the two above named. This court has cognizance of indictments for offences committed by consuls. Act of Congress, March 2, 1793, 2 Dallas, 297, 299.

ART. 4. District courts. (See their powers, Ch. 186, a. 10.) By the 2d section of this act, the United States are divided into districts, usually each state forming one; and by the 3d section, a district court is established in each, held by one judge, resident in the district, who holds annually four sessions, and may also hold special sessions or courts at his discretion. By the 6th section, he may adjourn his court by an order to the marshal; the powers and duties of this district court are generally contained in the 9th section of this act, cited at large above, in Ch. 186, a. 10, where it was proper to consider the principles of admiralty aud maritime jurisdiction; and as to appeals &c. from this court, see articles 2 and 3, this chapter; and it has been decided this court has exclusive cognizance of informations and suits for forfeitures. Writs of error to remove causes into the Supreme Court of the United States, can only issue from the clerk's office of that court. District courts possess all the powers of courts of admiralty, as instance or prize courts; 3 Dallas, 6, 16; can restore a vessel taken as prize, owned by neutrals and Americans, id.; 2 Dallas, 365; 2 Dallas, 401.

ART. 5. Powers common to all these courts.

§ 1. By several sections in this act, all these courts have of Congress, power to issue writs of scire facias, habeas corpus, and all other writs "necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law;" to compel parties to produce books and writings in evidence, and to grant new trials &c. See those heads. The 16th section provides, "that suits in equity shall not be sustained in either of the courts of the United States, in any case where plain, adequate, and complete remedy may be had at law."

Lofft, 160,

Act of Con

§ 2. By the 17th section of this act, all these courts have power to impose and administer all necessary oaths and affirmations, and to punish by fine and imprisoment, at the discretion of the said courts, all contempts of authority in any cause or hearing before the same; and to make and establish all necessary rules for the orderly conducting business in the said courts, provided such rules are not repugnant to the laws of the United States."

Every court must so regard its own proceedings, as not to suffer them to be eluded by an application to another.

Where Federal courts are governed by State laws, act of gress, Sept. Congress, September 24, 1789, section 34, see post, article

24, 1789.

16. By section 30, of this act, "the mode of proof by oral testimony and examination of witnesses in open court, shall be the same in all the courts of the United States, as well in the trial of causes in equity and of admiralty and maritime jurisdiction, as of actions at common law ;" and it is a general rule, that wherever magistrates are to execute a judicial act, they must act together, as to appoint overseers of the poor, or to bind out a poor apprentice, or to make an order of removal. 8 D. & E. 38, 380, Rex v, Forrest; 2 East, 244; but aliter, where they act ministerially, as allow a poor rate; id.

CH. 187.

Art. 5.

17, 18.

§ 3. Rules of court are, in this place, used in a limited 1 Cranch, sense; that is, including only those standing important rules Preface, 16, of practice which have been formally made and published by our highest courts from time to time; few in number, but applicable to many cases. From the year 1789, to the year 1803, the Supreme Court of the United States made eighteen such rules.

§ 4. The first four respect the admission, oaths, and practice of attornies and counsellors; they forbid the clerks to practise as either in this court; for admission as such, they must have been three years in practice in the supreme courts of their states, and of fair private and professional characters; they forbid counsellors to practise as attornies, and attornies as counsellors, in this court; but by the fourteenth rule, made August 12, 1801, counsellors were admissible as attornies in it. The fourth and sixth rules prescribed the form of of the oath or affirmation, and was: "I do solemnly swear, that I will demean myself as an attorney or counsellor of this court uprightly, and according to law, and that I will support the constitution of the United States."

66

5. The fifth rule directed all processes of the court to be in the name of the president of the United States, and the seventh rule adopted the practice of the courts of King's Bench and Chancery in England, as affording outlines for the practice of this court. Eighth rule directed "a statement of the material facts of the case," to be furnished the judges by "the counsel on each side of the cause." [Like rule in Connecticut, with the authorities, 3 Day's Ca. 29.]

6. The ninth rule directed "all evidence on motion for a discharge upon bail," to be by way of deposition; and the tenth rule, that process of subpana, issuing out of this court, in any suit in equity, shall be served on the deft. sixty days before the return day of the said process; and further, if the deft., on such service of the subpana, shall not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte. The fifteenth rule is the same as to proceeding ex parte.