Transcript of Federal Judiciary Act (1789)
Congress of the United States,
begun and held at the City of New York on Wednesday the fourth of March one thousand seven hundred and eighty nine.
CHAP. XX.–An Act to
establish the Judicial Courts of the United States.
SECTION 1. Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled, That the supreme court of
the United States shall consist of a chief justice and five associate justices,
any four of whom shall be a quorum, and shall hold annually at the seat of
government two sessions, the one commencing the first Monday of February, and
the other the first Monday of August. That the associate justices shall have
precedence according to the date of their commissions, or when the commissions
of two or more of them bear date on the same day, according to their respective
ages.
SEC. 2. And be it further enacted, That the
United States shall be, and they hereby are divided into thirteen districts, to
be limited and called as follows, to wit: one to consist of that part of the
State of Massachusetts which lies easterly of the State of New Hampshire, and to
be called Maine District; one to consist of the State of New Hampshire, and to
be called New Hampshire District; one to consist of the remaining part of the
State of Massachusetts, and to be called Massachusetts district; one to consist
of the State of Connecticut, and to be called Connecticut District; one to
consist of the State of New York, and to be called New York District; one to
consist of the State of New Jersey, and to be called New Jersey District; one to
consist of the State of Pennsylvania, and to be called Pennsylvania District;
one to consist of the State of Delaware, and to be called Delaware District; one
to consist of the State of Maryland, and to be called Maryland District; one to
consist of the State of Virginia, except that part called the District of
Kentucky, and to be called Virginia District; one to consist of the remaining
part of the State of Virginia, and to be called Kentucky District; one to
consist of the State of South Carolina, and to be called South Carolina
District; and one to consist of the State of Georgia, and to be called Georgia
District.
SEC. 3. And be it further enacted, That there
be a court called a District Court, in each of the afore mentioned districts, to
consist of one judge, who shall reside in the district for which he is
appointed, and shall be called a District Judge, and shall hold annually four
sessions, the first of which to commence as follows, to wit: in the districts of
New York and of New Jersey on the first, in the district of Pennsylvania on the
second, in the district of Connecticut on the third, and in the district of
Delaware on the fourth, Tuesdays of November next; in the districts of
Massachusetts, of Maine, and of Maryland, on the first, in the district of
Georgia on the second, and in the districts of New Hampshire, of Virginia, and
of Kentucky, on the third Tuesdays of December next; and the other three
sessions progressively in the respective districts on the like Tuesdays of every
third calendar month afterwards, and in the district of South Carolina, on the
third Monday in March and September, the first Monday in July, and the second
Monday in December of each and every year, commencing in December next; and that
the District Judge shall have power to hold special courts at his discretion.
That the stated District Court shall be held at the places following, to wit: in
the district of Maine, at Portland and Pownalsborough alternately, beginning at
the first; in the district of New Hampshire, at Exeter and Portsmouth
alternately, beginning at the first; in the district of Massachusetts, at Boston
and Salem alternately, beginning at the first; in the district of Connecticut,
alternately at Hartford and New Haven, beginning at the first; in the district
of New York, at New York; in the district of New Jersey, alternately at New
Brunswick and Burlington, beginning at the first; in the district of
Pennsylvania, at Philadelphia and York Town alternately, beginning at the first;
in the district of Delaware, alternately at Newcastle and Dover, beginning at
the first; in the district of Maryland, alternately at Baltimore and Easton,
beginning at the first; in the district of Virginia, alternately at Richmond and
Williamsburgh, beginning at the first; in the district of Kentucky, at
Harrodsburgh; in the district of South Carolina, at Charleston; and in the
district of Georgia, alternately at Savannah and Augusta, beginning at the
first; and that the special courts shall be held at the same place in each
district as the stated courts, or in districts that have two, at either of them,
in the discretion of the judge, or at such other place in the district, as the
nature of the business and his discretion shall direct. And that in the
districts that have but one place for holding the District Court, the records
thereof shall be kept at that place; and in districts that have two, at that
place in each district which the judge shall appoint.
SEC. 4. And be it further enacted, That the
before mentioned districts, except those of Maine and Kentucky, shall be divided
into three circuits, and be called the eastern, the middle, and the southern
circuit. That the eastern circuit shall consist of the districts of New
Hampshire, Massachusetts, Connecticut and New York; that the middle circuit
shall consist of the districts of New Jersey, Pennsylvania, Delaware, Maryland
and Virginia; and that the southern circuit shall consist of the districts of
South Carolina and Georgia, and that there shall be held annually in each
district of said circuits, two courts, which shall be called Circuit Courts, and
shall consist of any two justices of the Supreme Court, and the district judge
of such districts, any two of whom shall constitute a quorum: Provided,
That no district judge shall give a vote in any case of appeal or error from
his own decision; but may assign the reasons of such his decision.
SEC. 5. And be it further enacted, That the
first session of the said circuit court in the several districts shall commence
at the times following, to wit: in New Jersey on the second, in New York on the
fourth, in Pennsylvania on the eleventh, in Connecticut on the twenty-second,
and in Delaware on the twenty-seventh, days of April next; in Massachusetts on
the third, in Maryland on the seventh, in South Carolina on the twelfth, in New
Hampshire on the twentieth, in Virginia on the twenty-second, and in Georgia on
the twenty-eighth, days of May next, and the subsequent sessions in the
respective districts on the like days of every sixth calendar month afterwards,
except in South Carolina, where the session of the said court shall commence on
the first, and in Georgia where it shall commence on the seventeenth day of
October, and except when any of those days shall happen on a Sunday, and then
the session shall commence on the next day following. And the sessions of the
said circuit court shall be held in the district of New Hampshire, at Portsmouth
and Exeter alternately, beginning at the first; in the district of
Massachusetts, at Boston; in the district of Connecticut, alternately at
Hartford and New Haven, beginning at the last; in the district of New York,
alternately at New York and Albany, beginning at the first; in the district of
New Jersey, at Trenton; in the district of Pennsylvania, alternately at
Philadelphia and Yorktown, beginning at the first; in the district of Delaware,
alternately at New Castle and Dover, beginning at the first; in the district of
Maryland, alternately at Annapolis and Easton, beginning at the first; in the
district of Virginia, alternately at Charlottesville and Williamsburgh,
beginning at the first; in the district of South Carolina, alternately at
Columbia and Charleston, beginning at the first; and in the district of Georgia,
alternately at Savannah and Augusta, beginning at the first. And the circuit
courts shall have power to hold special sessions for the trial of criminal
causes at any other time at their discretion, or at the discretion of the
Supreme Court.
SEC. 6. And be it further enacted, That the
Supreme Court may, by any one or more of its justices being present, be
adjourned from day to day until a quorum be convened; and that a circuit court
may also be adjourned from day to day by any one of its judges, or if none are
present, by the marshal of the district until a quorum be convened; and that a
district court, in case of the inability of the judge to attend at the
commencement of a session, may by virtue of a written order from the said judge,
directed to the marshal of the district, be adjourned by the said marshal to
such day, antecedent to the next stated session of the said court, as in the
said order shall be appointed; and in case of the death of the said judge, and
his vacancy not being supplied, all process, pleadings and proceedings of what
nature soever, pending before the said court, shall be continued of course until
the next stated session after the appointment and acceptance of the office by
his successor.
SEC. 7. And be it [further]
enacted, That the Supreme Court, and the district courts shall have
power to appoint clerks for their respective courts, and that the clerk for each
district court shall be clerk also of the circuit court in such district, and
each of the said clerks shall, before he enters upon the execution of his
office, take the following oath or affirmation, to wit: "I, A. B., being
appointed clerk of , do solemnly swear, or affirm, that I will truly and
faithfully enter and record all the orders, decrees, judgments and proceedings
of the said court, and that I will faithfully and impartially discharge and
perform all the duties of my said office, according to the best of my abilities
and understanding. So help me God." Which words, so help me God, shall be
omitted in all cases where an affirmation is admitted instead of an oath. And
the said clerks shall also severally give bond, with sufficient sureties, (to be
approved of by the Supreme and district courts respectively) to the United
States, in the sum of two thousand dollars, faithfully to discharge the duties
of his office, and seasonably to record the decrees, judgments and
determinations of the court of which he is clerk.
SEC. 8. And be it further enacted, That the
justices of the Supreme Court, and the district judges, before they proceed to
execute the duties of their respective offices, shall take the following oath or
affirmation, to wit: "I, A. B., do solemnly swear or affirm, that I will
administer justice without respect to persons, and do equal right to the poor
and to the rich, and that I will faithfully and impartially discharge and
perform all the duties incumbent on me as , according to the best of my
abilities and understanding, agreeably to the constitution, and laws of the
United States. So help me God."
SEC. 9. And be it further enacted, That the
district courts shall have, exclusively of the courts of the several States,
cognizance of all crimes and offences that shall be cognizable under the
authority of the United States, committed within their respective districts, or
upon the high seas; where no other punishment than whipping, not exceeding
thirty stripes, a fine not exceeding one hundred dollars, or a term of
imprisonment not exceeding six months, is to be inflicted; and shall also have
exclusive original cognizance of all civil causes of admiralty and maritime
jurisdiction, including all seizures under laws of impost, navigation or trade
of the United States, where the seizures are made, on waters which are navigable
from the sea by vessels of ten or more tons burthen, within their respective
districts as well as upon the high seas; saving to suitors, in all cases, the
right of a common law remedy, where the common law is competent to give it; and
shall also have exclusive original cognizance of all seizures on land, or other
waters than as aforesaid, made, and of all suits for penalties and forfeitures
incurred, under the laws of the United States. And shall also have cognizance,
concurrent with the courts of the several States, or the circuit courts, as the
case may be, of all causes where an alien sues for a tort only in violation of
the law of nations or a treaty of the United States. And shall also have
cognizance, concurrent as last mentioned, of all suits at common law where the
United States sue, and the matter in dispute amounts, exclusive of costs, to the
sum or value of one hundred dollars. And shall also have jurisdiction
exclusively of the courts of the several States, of all suits against consuls or
vice-consuls, except for offences above the description aforesaid. And the trial
of issues in fact, in the district courts, in all causes except civil causes of
admiralty and maritime jurisdiction, shall be by jury.
SEC. 10. And be it further enacted, That the
district court in Kentucky district shall, besides the jurisdiction aforesaid,
have jurisdiction of all other causes, except of appeals and writs of error,
hereinafter made cognizable in a circuit court, and shall proceed therein in the
same manner as a circuit court, and writs of error and appeals shall lie from
decisions therein to the Supreme Court in the same causes, as from a circuit
court to the Supreme Court, and under the same regulations. And the district
court in Maine district shall, besides the jurisdiction herein before granted,
have jurisdiction of all causes, except of appeals and writs of error herein
after made cognizable in a circuit court, and shall proceed therein in the same
manner as a circuit court: And writs of error shall lie from decisions therein
to the circuit court in the district of Massachusetts in the same manner as from
other district courts to their respective circuit courts.
SEC. 11. And be it further enacted, That the
circuit courts shall have original cognizance, concurrent with the courts of the
several States, of all suits of a civil nature at common law or in equity, where
the matter in dispute exceeds, exclusive of costs, the sum or value of five
hundred dollars, and the United States are plaintiffs, or petitioners; or an
alien is a party, or the suit is between a citizen of the State where the suit
is brought, and a citizen of another State. And shall have exclusive cognizance
of all crimes and offences cognizable under the authority of the United States,
except where this act otherwise provides, or the laws of the United States shall
otherwise direct, and concurrent jurisdiction with the district courts of the
crimes and offences cognizable therein. But no person shall be arrested in one
district for trial in another, in any civil action before a circuit or district
court. And no civil suit shall be brought before either of said courts against
an inhabitant of the United States, by any original process in any other
district than that whereof he is an inhabitant, or in which he shall be found at
the time of serving the writ, nor shall any district or circuit court have
cognizance of any suit to recover the contents of any promissory note or other
chose in action in favour of an assignee, unless a suit might have been
prosecuted in such court to recover the said contents if no assignment had been
made, except in cases of foreign bills of exchange. And the circuit courts shall
also have appellate jurisdiction from the district courts under the regulations
and restrictions herein after provided.
SEC. 12. And be it further enacted, That if a
suit be commenced in any state court against an alien, or by a citizen of
the state in which the suit is brought against a citizen of another state, and
the matter in dispute exceeds the aforesaid sum or value of five hundred
dollars, exclusive of costs, to be made to appear to the satisfaction of the
court; and the defendant shall, at the time of entering his appearance in such
state court, file a petition for the removal of the cause for trial into the
next circuit court, to be held in the district where the suit is pending, or if
in the district of Maine to the district court next to be holden therein, or if
in Kentucky district to the district court next to be holden therein, and offer
good and sufficient surety for his entering in such court, on the first day of
its session, copies of said process against him, and also for his there
appearing and entering special bail in the cause, if special bail was originally
requisite therein, it shall then be the duty of the state court to accept the
surety, and proceed no further in the cause, and any bail that may have been
originally taken shall be discharged, and the said copies being entered as
aforesaid, in such court of the United States, the cause shall there proceed in
the same manner as if it had been brought there by original process. And any
attachment of the goods or estate of the defendant by the original process,
shall hold the goods or estate so attached, to answer the final judgment in the
same manner as by the laws of such state they would have been holden to answer
final judgment, had it been rendered by the court in which the suit commenced.
And if in any action commenced in a state court, the title of land be concerned,
and the parties are citizens of the same state, and the matter in dispute
exceeds the sum or value of five hundred dollars, exclusive of costs, the sum or
value being made to appear to the satisfaction of the court, either party,
before the trial, shall state to the court and make affidavit if they require
it, that he claims and shall rely upon a right or title to the land, under a
grant from a state other than that in which the suit is pending, and produce the
original grant or an exemplification of it, except where the loss of public
records shall put it out of his power, and shall move that the adverse party
inform the court, whether he claims a right or title to the land under a grant
from the state in which the suit is pending; the said adverse [party] shall give
such information, or otherwise not be allowed to plead such grant, or give it in
evidence upon the trial, and if he informs that he does claim under such grant,
the party claiming under the grant first mentioned may then, on motion, remove
the cause for trial to the next circuit court to be holden in such district, or
if in the district of Maine, to the court next to be holden therein; or if in
Kentucky district, to the district court next to be holden therein; but if he is
the defendant, shall do it under the same regulations as in the before-mentioned
case of the removal of a cause into such court by an alien; and neither party
removing the cause, shall be allowed to plead or give evidence of any other
title than that by him stated as aforesaid, as the ground of his claim; and the
trial of issues in fact in the circuit courts shall, in all suits, except those
of equity, and of admiralty, and maritime jurisdiction, be by jury.
SEC. 13. And be it further enacted, That the
Supreme Court shall have exclusive jurisdiction of all controversies of a civil
nature, where a state is a party, except between a state and its citizens; and
except also between a state and citizens of other states, or aliens, in which
latter case it shall have original but not exclusive jurisdiction. And shall
have exclusively all such jurisdiction of suits or proceedings against
ambassadors, or other public ministers, or their domestics, or domestic
servants, as a court of law can have or exercise consistently with the law of
nations; and original, but not exclusive jurisdiction of all suits brought by
ambassadors, or other public ministers, or in which a consul, or vice consul,
shall be a party. And the trial of issues in fact in the Supreme Court, in all
actions at law against citizens of the United States, shall be by jury. The
Supreme Court shall also have appellate jurisdiction from the circuit courts and
courts of the several states, in the cases herein after specially provided for;
and shall have power to issue writs of prohibition to the district courts, when
proceeding as courts of admiralty and maritime jurisdiction, and writs of
mandamus, in cases warranted by the principles and usages of law, to any
courts appointed, or persons holding office, under the authority of the United
States.
SEC. 14. And be it further enacted, That all
the before-mentioned courts of the United States, shall have power to issue
writs of scire facias, habeas corpus, and all other writs not specially
provided for by statute, which may be necessary for the exercise of their
respective jurisdictions, and agreeable to the principles and usages of law. And
that either of the justices of the supreme court, as well as judges of the
district courts, shall have power to grant writs of habeas corpus for the
purpose of an inquiry into the cause of commitment.——Provided, That writs
of habeas corpus shall in no case extend to prisoners in gaol, unless
where they are in custody, under or by colour of the authority of the United
States, or are committed for trial before some court of the same, or are
necessary to be brought into court to testify.
SEC. 15. And be it further enacted, That
all the said courts of the United States, shall have power in the trial of
actions at law, on motion and due notice thereof being given, to require the
parties to produce books or writings in their possession or power, which contain
evidence pertinent to the issue, in cases and under circumstances where they
might be compelled to produce the same by the ordinary rules of proceeding in
chancery; and if a plaintiff shall fail to comply with such order, to produce
books or writings, it shall be lawful for the courts respectively, on motion, to
give the like judgment for the defendant as in cases of nonsuit; and if a
defendant shall fail to comply with such order, to produce books or writings, it
shall be lawful for the courts respectively on motion as aforesaid, to give
judgment against him or her by default.
SEC. 16. And be it further enacted, That
suits in equity shall not be sustained in either of the courts of the United
States, in any case where plain, adequate and complete remedy may be had at
law.
SEC. 17. And be it further enacted, That all
the said courts of the United States shall have power to grant new trials, in
cases where there has been a trial by jury for reasons for which new trials have
usually been granted in the courts of law; and shall have power to impose and
administer all necessary oaths or affirmations, and to punish by fine or
imprisonment, at the discretion of said courts, all contempts of authority in
any cause or hearing before the same; and to make and establish all necessary
rules for the orderly conducting business in the said courts, provided such
rules are not repugnant to the laws of the United States.
SEC. 18. And be it further enacted, That when
in a circuit court, judgment upon a verdict in a civil action shall be entered,
execution may on motion of either party, at the discretion of the court, and on
such conditions for the security of the adverse party as they may judge proper,
be stayed forty-two days from the time of entering judgment, to give time to
file in the clerk’s office of said court, a petition for a new trial. And if
such petition be there filed within said term of forty-two days, with a
certificate thereon from either of the judges of such court, that he allows the
same to be filed, which certificate he may make or refuse at his discretion,
execution shall of course be further stayed to the next session of said court.
And if a new trial be granted, the former judgment shall be thereby rendered
void.
SEC .
19. And be it further enacted, That it shall be the duty of circuit
courts, in causes in equity and of admiralty and maritime jurisdiction, to cause
the facts on which they found their sentence or decree, fully to appear upon the
record either from the pleadings and decree itself, or a state of the case
agreed by the parties, or their counsel, or if they disagree by a stating of the
case by the court.
SEC. 20. And be it further enacted, That
where in a circuit court, a plaintiff in an action, originally brought there, or
a petitioner in equity, other than the United States, recovers less than the sum
or value of five hundred dollars, or a libellant, upon his own appeal, less than
the sum or value of three hundred dollars, he shall not be allowed, but at the
discretion of the court, may be adjudged to pay costs.
SEC. 21. And be it further enacted, That from
final decrees in a district court in causes of admiralty and maritime
jurisdiction, where the matter in dispute exceeds the sum or value of three
hundred dollars, exclusive of costs, an appeal shall be allowed to the next
circuit court, to be held in such district. Provided nevertheless, That
all such appeals from final decrees as aforesaid, from the district court of
Maine, shall be made to the circuit court, next to be holden after each appeal
in the district of Massachusetts.
SEC. 22. And be it further enacted, That
final decrees and judgments in civil actions in a district court, where the
matter in dispute exceeds the sum or value of fifty dollars, exclusive of costs,
may be reexamined, and reversed or affirmed in a circuit court, holden in the
same district, upon a writ of error, whereto shall be annexed and returned
therewith at the day and place therein mentioned, an authenticated transcript of
the record, an assignment of errors, and prayer for reversal, with a citation to
the adverse party, signed by the judge of such district court, or a justice of
the Supreme Court, the adverse party having at least twenty days’ notice. And
upon a like process, may final judgments and decrees in civil actions, and suits
in equity in a circuit court, brought there by original process, or removed
there from courts of the several States, or removed there by appeal from a
district court where the matter in dispute exceeds the sum or value of two
thousand dollars, exclusive of costs, be re-examined and reversed or affirmed in
the Supreme Court, the citation being in such case signed by a judge of such
circuit court, or justice of the Supreme Court, and the adverse party having at
least thirty days’ notice. But there shall be no reversal in either court on
such writ of error for error in ruling any plea in abatement, other than a plea
to the jurisdiction of the court, or such plea to a petition or bill in equity,
as is in the nature of a demurrer, or for any error in fact. And writs of error
shall not be brought but within five years after rendering or passing the
judgment or decree complained of, or in case the person entitled to such writ of
error be an infant, feme covert, non compos mentis, or imprisoned, then
within five years as aforesaid, exclusive of the time of such disability. And
every justice or judge signing a citation on any writ of error as aforesaid,
shall take good and sufficient security, that the plaintiff in error shall
prosecute his writ to effect, and answer all damages and costs if he fail to
make his plea good.
SEC. 23. And be it further enacted, That a
writ of error as aforesaid shall be a supersedeas and stay execution in cases
only where the writ of error is served, by a copy thereof being lodged for the
adverse party in the clerk’s office where the record remains, within ten days,
Sundays exclusive, after rendering the judgment or passing the decree complained
of. Until the expiration of which term of ten days, executions shall not issue
in any case where a writ of error may be a supersedeas; and whereupon such writ
of error the Supreme or a circuit court shall affirm a judgment or decree, they
shall adjudge or decree to the respondent in error just damages for his delay,
and single or double costs at their discretion.
SEC. 24. And be it further enacted, That when
a judgment or decree shall be reversed in a circuit court, such court shall
proceed to render such judgment or pass such decree as the district court should
have rendered or passed; and the Supreme Court shall do the same on reversals
therein, except where the reversal is in favour of the plaintiff, or petitioner
in the original suit, and the damages to be assessed, or matter to be decreed,
are uncertain, in which case they shall remand the cause for a final decision.
And the Supreme Court shall not issue execution in causes that are removed
before them by writs of error, but shall send a special mandate to the circuit
court to award execution thereupon.
SEC. 25. And be it further enacted, That a
final judgment or decree in any suit, in the highest court of law or equity of a
State in which a decision in the suit could be had, where is drawn in question
the validity of a treaty or statute of, or an authority exercised under the
United States, and the decision is against their validity; or where is drawn in
question the validity of a statute of, or an authority exercised under any
State, on the ground of their being repugnant to the constitution, treaties or
laws of the United States, and the decision is in favour of such their validity,
or where is drawn in question the construction of any clause of the
constitution, or of a treaty, or statute of, or commission held under the United
States, and the decision is against the title, right, privilege or exemption
specially set up or claimed by either party, under such clause of the said
Constitution, treaty, statute or commission, may be re-examined and reversed or
affirmed in the Supreme Court of the United States upon a writ of error, the
citation being signed by the chief justice, or judge or chancellor of the court
rendering or passing the judgment or decree complained of, or by a justice of
the Supreme Court of the United States, in the same manner and under the same
regulations, and the writ shall have the same effect, as if the judgment or
decree complained of had been rendered or passed in a circuit court, and the
proceeding upon the reversal shall also be the same, except that the Supreme
Court, instead of remanding the cause for a final decision as before provided,
may at their discretion, if the cause shall have been once remanded before,
proceed to a final decision of the same, and award execution. But no other error
shall be assigned or regarded as a ground of reversal in any such case as
aforesaid, than such as appears on the face of the record, and immediately
respects the before mentioned questions of validity or construction of the said
constitution, treaties, statutes, commissions, or authorities in dispute.
SEC. 26. And be it further enacted, That in
all causes brought before either of the courts of the United States to recover
the forfeiture annexed to any articles of agreement, covenant, bond, or other
speciality, where the forfeiture, breach or non-performance shall appear, by the
default or confession of the defendant, or upon demurrer, the court before whom
the action is, shall render judgment therein for the plaintiff to recover so
much as is due according to equity. And when the sum for which judgment should
be rendered is uncertain, the same shall, if either of the parties request it,
be assessed by a jury.
SEC. 27. And be it further enacted, That a
marshal shall be appointed in and for each district for the term of four years,
but shall be removable from office at pleasure, whose duty it shall be to attend
the district and circuit courts when sitting therein, and also the Supreme Court
in the District in which that court shall sit. And to execute throughout the
district, all lawful precepts directed to him, and issued under the authority of
the United States, and he shall have power to command all necessary assistance
in the execution of his duty, and to appoint as there shall be occasion, one or
more deputies, who shall be removable from office by the judge of the district
court, or the circuit court sitting within the district, at the pleasure of
either; and before he enters on the duties of his office, he shall become
bound for the faithful performance of the same, by himself and by his deputies
before the judge of the district court to the United States, jointly and
severally, with two good and sufficient sureties, inhabitants and freeholders of
such district, to be approved by the district judge, in the sum of twenty
thousand dollars, and shall take before said judge, as shall also his deputies,
before they enter on the duties of their appointment, the following oath of
office: "I, A. B., do solemnly swear or affirm, that I will faithfully execute
all lawful precepts directed to the marshal of the district of
under the authority of the United States, and true returns
make, and in all things well and truly, and without malice or partiality,
perform the duties of the office of marshal (or marshal’s deputy, as the case
may be) of the district of , during my continuance in said office, and take only
my lawful fees. So help me God."
SEC. 28. And be it further enacted, That in
all causes wherein the marshal or his deputy shall be a party, the writs and
precepts therein shall be directed to such disinterested person as the court, or
any justice or judge thereof may appoint, and the person so appointed, is hereby
authorized to execute and return the same. And in case of the death of any
marshal, his deputy or deputies shall continue in office, unless otherwise
specially removed; and shall execute the same in the name of the deceased, until
another marshal shall be appointed and sworn: And the defaults or misfeasances
in office of such deputy or deputies in the mean time, as well as before, shall
be adjudged a breach of the condition of the bond given, as before directed, by
the marshal who appointed them; and the executor or administrator of the
deceased marshal shall have like remedy for the defaults and misfeasances in
office of such deputy or deputies during such interval, as they would be
entitled to if the marshal had continued in life and in the exercise of his said
office, until his successor was appointed, and sworn or affirmed: And every
marshal or his deputy when removed from office, or when the term for which the
marshal is appointed shall expire, shall have power notwithstanding to execute
all such precepts as may be in their hands respectively at the time of such
removal or expiration of office; and the marshal shall be held answerable for
the delivery to his successor of all prisoners which may be in his custody at
the time of his removal, or when the term for which he is appointed shall
expire, and for that purpose may retain such prisoners in his custody until his
successor shall be appointed and qualified as the law directs.
SEC. 29. And be it further enacted, That in
cases punishable with death, the trial shall be had in the county where the
offence was committed, or where that cannot be done without great inconvenience,
twelve petit jurors at least shall be summoned from thence. And jurors in all
cases to serve in the courts of the United States shall be designated by lot or
otherwise in each State respectively according to the mode of forming juries
therein now practised, so far as the laws of the same shall render such
designation practicable by the courts or marshals of the United States; and the
jurors shall have the same qualifications as are requisite for jurors by the
laws of the State of which they are citizens, to serve in the highest courts of
law of such State, and shall be returned as there shall be occasion for them,
from such parts of the district from time to time as the court shall direct, so
as shall be most favourable to an impartial trial, and so as not to incur an
unnecessary expense, or unduly to burthen the citizens of any part of the
district with such services. And writs of venire facias when directed by
the court shall issue from the clerk’s office, and shall be served and returned
by the marshal in his proper person, or by his deputy, or in case the marshal or
his deputy is not an indifferent person, or is interested in the event of the
cause, by such fit person as the court shall specially appoint for that purpose,
to whom they shall administer an oath or affirmation that he will truly and
impartially serve and return such writ. And when from challenges or otherwise
there shall not be a jury to determine any civil or criminal cause, the marshal
or his deputy shall, by order of the court where such defect of jurors shall
happen, return jurymen de talibus circumstantibus sufficient to complete
the pannel; and when the marshal or his deputy are disqualified as aforesaid,
jurors may be returned by such disinterested person as the court shall
appoint.
SEC. 30. And be it further enacted, That the
mode of proof by oral testimony and examination of witnesses in open court shall
be the same in all the courts of the United States, as well in the trial of
causes in equity and of admiralty and maritime jurisdiction, as of actions at
common law. And when the testimony of any person shall be necessary in any civil
cause depending in any district in any court of the United States, who shall
live at a greater distance from the place of trial than one hundred miles, or is
bound on a voyage to sea, or is about to go out of the United States, or out of
such district, and to a greater distance from the place of trial than as
aforesaid, before the time of trial, or is ancient or very infirm, the
deposition of such person may be taken de bene esse before any justice or
judge of any of the courts of the United States, or before any chancellor,
justice or judge of a supreme or superior court, mayor or chief magistrate of a
city, or judge of a county court or court of common pleas of any of the United
States, not being of counsel or attorney to either of the parties, or interested
in the event of the cause, provided that a notification from the magistrate
before whom the deposition is to be taken to the adverse party, to be present at
the taking of the same, and to put interrogatories, if he think fit, be first
made out and served on the adverse party or his attorney as either may be
nearest, if either is within one hundred miles of the place of such caption,
allowing time for their attendance after notified, not less than at the rate of
one day, Sundays exclusive, for every twenty miles travel. And in causes of
admiralty and maritime jurisdiction, or other cases of seizure when a libel
shall be filed, in which an adverse party is not named, and depositions of
persons circumstanced as aforesaid shall be taken before a claim be put in, the
like notification as aforesaid shall be given to the person having the agency or
possession of the property libelled at the time of the capture or seizure of the
same, if known to the libellant. And every person deposing as aforesaid shall be
carefully examined and cautioned, and sworn or affirmed to testify the whole
truth, and shall subscribe the testimony by him or her given after the same
shall be reduced to writing, which shall be done only by the magistrate taking
the deposition, or by the deponent in his presence. And the depositions so taken
shall be retained by such magistrate until he deliver the same with his own hand
into the court for which they are taken, or shall , together with a certificate
of the reasons as aforesaid of their being taken, and of the notice if any given
to the adverse party, be by him the said magistrate sealed up and directed to
such court, and remain under his seal until opened in court. And any person may
be compelled to appear and depose as aforesaid in the same manner as to appear
and testify in court. And in the trial of any cause of admiralty or maritime
jurisdiction in a district court, the decree in which may be appealed from, if
either party shall suggest to and satisfy the court that probably it will not be
in his power to produce the witnesses there testifying before the circuit court
should an appeal be had, and shall move that their testimony be taken down in
writing, it shall be so done by the clerk of the court. And if an appeal be had,
such testimony may be used on the trial of the same, if it shall appear to the
satisfaction of the court which shall try the appeal, that the witnesses are
then dead or gone out of the United States, or to a greater distance than as
aforesaid from the place where the court is sitting, or that by reason of age,
sickness, bodily infirmity or imprisonment, they are unable to travel and appear
at court, but not otherwise. And unless the same shall be made to appear on the
trial of any cause, with respect to witnesses whose depositions may have been
taken therein, such depositions shall not be admitted or used in the cause.
Provided, That nothing herein shall be construed to prevent any court of
the United States from granting a dedimus potestatem to take depositions
according to common usage, when it may be necessary to prevent a failure or
delay of justice, which power they shall severally possess, nor to extend to
depositions taken in perpetuam rei memoriam, which if they relate to
matters that may be cognizable in any court of the United States, a circuit
court on application thereto made as a court of equity, may, according to the
usages in chancery direct to be taken.
SEC. 31. And be it [further]
enacted, That where any suit shall be depending in any court of the United
States, and either of the parties shall die before final judgment, the executor
or administrator of such deceased party who was plaintiff, petitioner, or
defendant, in case the cause of action doth by law survive, shall have full
power to prosecute or defend any such suit or action until final judgment; and
the defendant or defendants are hereby obliged to answer thereto accordingly;
and the court before whom such cause may be depending, is hereby empowered and
directed to hear and determine the same, and to render judgment for or against
the executor or administrator, as the case may require. And if such executor or
administrator having been duly served with a scire facias from the office
of the clerk of the court where such suit is depending, twenty days beforehand,
shall neglect or refuse to become a party to the suit, the court may render
judgment against the estate of the deceased party, in the same manner as if the
executor or administrator had voluntarily made himself a party to the suit. And
the executor or administrator who shall become a party as aforesaid, shall, upon
motion to the court where the suit is depending, be entitled to a continuance of
the same until the next term of the said court. And if there be two or more
plaintiffs or defendants, and one or more of them shall die, if the cause of
action shall survive to the surviving plaintiff or plaintiffs, or against the
surviving defendant or defendants, the writ or action shall not be thereby
abated; but such death being suggested upon the record, the action shall proceed
at the suit of the surviving plaintiff or plaintiffs against the surviving
defendant or defendants.
SEC. 32. And be it further enacted, That no
summons, writ, declaration, return, process, judgment, or other proceedings in
civil causes in any of the courts of the United States, shall be abated,
arrested, quashed or reversed, for any defect or want of form, but the said
courts respectively shall proceed and give judgment according as the right of
the cause and matter in law shall appear unto them, without regarding any
imperfections, defects, or want of form in such writ, declaration, or other
pleading, return, process, judgment, or course of proceeding whatsoever, except
those only in cases of demurrer, which the party demurring shall specially sit
down and express together with his demurrer as the cause thereof. And the said
courts respectively shall and may, by virtue of this act, from time to time,
amend all and every such imperfections, defects and wants of form, other than
those only which the party demurring shall express as aforesaid, and may at any
time permit either of the parties to amend any defect in the process or
pleadings, upon such conditions as the said courts respectively shall in their
discretion, and by their rules prescribe.
SEC. 33. And be it further enacted, That for
any crime or offence against the United States, the offender may, by any justice
or judge of the United States, or by any justice of the peace, or other
magistrate of any of the United States where he may be found agreeably to the
usual mode of process against offenders in such state, and at the expense of the
United States, be arrested, and imprisoned or bailed, as the case may be, for
trial before such court of the United States as by this act has cognizance of
the offence. And copies of the process shall be returned as speedily as may be
into the clerk’s office of such court, together with the recognizances of the
witnesses for their appearance to testify in the case; which recognizances the
magistrate before whom the examination shall be, may require on pain of
imprisonment. And if such commitment of the offender, or the witnesses shall be
in a district other than that in which the offence is to be tried, it shall be
the duty of the judge of that district where the delinquent is imprisoned,
seasonably to issue, and of the marshal of the same district to execute, a
warrant for the removal of the offender, and the witnesses, or either of them,
as the case may be, to the district in which the trial is to be had. And upon
all arrests in criminal cases, bail shall be admitted, except where the
punishment may be death, in which cases it shall not be admitted but by the
supreme or a circuit court, or by a justice of the supreme court, or a judge of
a district court, who shall exercise their discretion therein, regarding the
nature and circumstances of the offence, and of the evidence, and the usages of
law. And if a person committed by a justice of the supreme or a judge of a
district court for an offence not punishable with death, shall afterwards
procure bail, and there be no judge of the United States in the district to take
the same, it may be taken by any judge of the supreme or superior court of law
of such state.
SEC. 34. And be it further enacted, That the
laws of the several states, except where the constitution, treaties or statutes
of the United States shall otherwise require or provide, shall be regarded as
rules of decision in trials at common law in the courts of the United States in
cases where they apply.
SEC. 35. And be it further enacted, That in all courts of the United States,
the parties may plead and manage their own causes personally or by assistance
of such counsel or attorneys at law as by the rules of the said courts respectively
shall be permitted to manage and conduct causes therein. And there shall be
appointed in each district a meet person learned in the law to act as attorney
for the United States in such district, who shall be sworn or affirmed to the
faithful execution of his office, whose duty it shall be to prosecute in such
district all delinquents for crimes and offences, cognizable under the authority
of the United States, and all civil actions in which the United States shall
be concerned, except before the supreme court in the district in which that
court shall be holden. And he shall receive as compensation for his services
such fees as shall be taxed therefor in the respective courts before which the
suits or prosecutions shall be. And there shall also be appointed a meet person,
learned in the law, to act as attorney-general for the United States, who shall
be sworn or affirmed to a faithful execution of his office; whose duty it shall
be to prosecute and conduct all suits in the Supreme Court in which the United
States shall be concerned, and to give his advice and opinion upon questions
of law when required by the President of the United States, or when requested
by the heads of any of the departments, touching any matters that may concern
their departments, and shall receive such compensation for his services as shall
by law be provided.
Frederick Augustus Muhlenberg, Speaker of the House of Representatives
John Adams, Vice-President of the United States, and President of the Senate
APPROVED, September the Twenty fourth, 1789.
George Washington, President of the United States
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