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several, sometimes over many, States. From 1789 to 1869, with the exception of a little over twelve months, between February, 1801, and March, 1802, the only Federal Judges were the Justices of the Supreme Court and the District Judges. If there were to be Courts of higher rank than those of the District, their work had to be done in whole or in part by the Justices of the Supreme Court. In order that this duty might be apportioned in some orderly fashion among them it was expedient that the country should be divided and particular Justices assigned to each of such divisions that is to say, each of such divisions constituted the circuit of a particular Supreme Court Justice. The appellation "Circuit Court" suggests that such tribunal has jurisdiction throughout the circuit. That, in point of fact, it never had. Its writs and processes did not run beyond the district in which it was held. The full and accurate title of the Circuit Court in this State was the Circuit Court of the United States for the District of Maryland. For many years Maryland and Virginia have formed part of the same Federal circuit. Nevertheless, the Circuit Court for the District of Maryland was as distinct in every way from that for either of the districts into which Virginia is divided as it was from the Circuit Court for the District of Oregon.

The word circuit had no reference whatever to the territorial extent of the Court's jurisdiction. Indeed, it was purely arbitrary so far as concerned the Court itself as distinguished from the Judges who might hold it.

44. Circuit Courts From 1789 to 1801.-At first there were only three circuits, the Eastern, the Middle and the Southern. The last-named comprised only two States, South Carolina and Georgia. It is significant of the essentially frontier conditions which one hundred and twenty-five years ago prevailed throughout the greater part of those Commonwealths that the assignment to the Southern Circuit was universally held to be burdensome. To ride circuit in that part of the country was very hard work. It is true there was not much to be done by a Federal Judge when he reached any one of his various Court houses. To get to them at all required

long and exhausting journeys which to elderly men were dangerous.

Originally the Supreme Court had six members. Two of them were accordingly assigned to each circuit. These two, together with the District Judge of the district, were required to hold in each district a Circuit Court twice in each year. To make a Court at least two of the three had to be present. Under the conditions of travel then prevailing, the Supreme Court Justices must have spent the larger part of their time in public or private conveyances or on horse-back. It is not surprising that at this period many gentlemen declined appointments to the Supreme Bench; one citizen of Maryland preferred to take the post of Chancellor of that State, and many of the earlier Justices of the Supreme Court resigned after a few months or a few years of service. If there had been any considerable number of cases to be disposed of either on circuit or by the Supreme Court the system would have been utterly unworkable. As a matter of fact, the Supreme Court had hardly anything to do and the Circuit Courts not much more. John Jay while Chief Justice was. also Minister to England, and Oliver Ellsworth, while hold-. ing the same high judicial post, represented us in France. John Marshall for some little while was both Secretary of State and Chief Justice. Samuel Chase, of Maryland, found time while an Associate Justice to canvass his State in advocacy of the re-election of President Adams.

As originally constituted the Circuit Courts exercised both original and appellate jurisdiction. In 1891 the latter was taken from them and for the remaining twenty years of their existence they were Courts of first instance and nothing more.

It will be unnecessary here to discuss the jurisdiction, both original and appellate, which at different times they had. It will tend to clearness if attention be confined to the changes which from time to time were made in their organization.

45.

1801.

Circuit Courts Under the Act of February 13,
As has been said, the conditions under which circuit

work had to be done were very trying.

As a rule, the

There was a

Supreme Court Justices heartily disliked it. doubt as to whether under a strict construction of the Constitution a Justice of the Supreme Court could be required to sit in an inferior tribunal. It was often impossible for either of the Justices of the Supreme Court to get to the place fixed for holding the Circuit Court in a particular district at the time designated by law. Some changes in the original scheme had by 1801 become necessary. The Federalists were about to lose control of President and of Congress. They wished to insure that for an indefinite time to come the Courts of the United States would be in the hands of those whom they would have described as men of "sound principles❞—that is, good Federalists. On February 13, 1801, less than three weeks before they went out of power; as it turned out forever, they passed an Act for the more convenient organization of the Courts of the United States.1 By it the Circuit Court system was radically altered. They increased the number of districts to twenty-two and directed the establishment of a District Court in each. They doubled the number of the circuits. The geographical grouping of the States, then made, is very similar to that now in force. The first six of the present circuits are today constituted very much as they were by the Act of 1801. For each of these circuits, except the sixth, they directed that there should be appointed three new Judges to be called Circuit Judges. In the Sixth Circuit there was to be only one such Judge. The Justices of the Supreme Court were no longer to sit in the Circuit Courts. This was not a bad system. If all original jurisdiction had - been given to the District Courts and the Circuit Courts made appellate tribunals purely, the organization would have been substantially the same as that which now exists. It was then doubtless far more elaborate than the needs of the country required. The Federal Courts were very unpopular with the party about to come into power. The appointment of a large number of distinguished Federalists to life positions. was even less to its liking. President Adams promptly

12 Stat. 89.

exercised the powers conferred on him by this Act. New District and Circuit Judges were appointed and promptly confirmed by a Federal Senate. These were the gentlemen whom the Jeffersonians dubbed the "Midnight Judges."

46. Circuit Courts Under the Act of April 29, 1802. -A year later the victorious Democrats, or Republicans as they then called themselves, repealed the Act of 1801.1 By the express provisions of this statute all laws relating to the Federal judiciary changed by the Act of February 13, 1801 were re-enacted. Thus things were put back precisely where they had been thirteen months earlier. Some changes

in the organization prescribed by the original Judiciary Act had become absolutely necessary. They were made a couple of months later by the Act of April 29, 1802.2 By it six circuits were again established, although with different boundaries. The Circuit Courts no longer consisted of two Justices of the Supreme Court and of a District Judge. Only one Justice were assigned to each circuit. He and the District Judge might hold the Court together, or either could act alone, except that the appellate jurisdiction of the Circuit Court could be exercised only by the Circuit Justice, as a Justice of the Supreme Court sitting on circuit has always been styled. When in other cases the District Judge differed from the Circuit Justice, the question as to which they disagreed was certified to the Supreme Court for its determination. With the growth of the business of the Supreme Court itself, with the expansion of the country, and therefore with the increase in the number of districts, more and more of the work of holding the Circuit Courts fell upon the District Judges. Except for additions to the number of circuits, this system remained unchanged for sixty-seven years.

47. Justices of the Supreme Court Can Be Constitutionally Assigned to Circuit Duty.-In 1803 the SuCourt was called on to say whether its members could

preme

1 March 2, 1802, 2 Stat. 132.

22 Stat. 156.

constitutionally be assigned to sit in the Circuit Courts without being specially appointed and commissioned as Judges of the latter. It held that "practice, and acquiescence under it, for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer and has indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled."1

48. The Circuit Courts Under the Act of April 10, 1869. In the nearly three score years and ten which elapsed between the close of the administration of the first Adams and the beginning of that of General Grant, the area of the country more than trebled and its population multiplied seven-fold. The great changes which the war had brought about in the relations of the States and the Nation, and the enormous increase of interstate business which followed upon the development of our railroad system, had combined to increase immensely the volume and importance of the business which the Federal Courts were called upon to transact. These Courts were still organized as they had been at the beginning of the century. There were more districts and there were nine circuits where there had been but six, but beyond that no provision had been made for disposing of the greatly increased work which had to be done.

By the Act of April 10, 1869,1 the President was authorized to appoint a Circuit Judge in each of the nine circuits. He was to have within his circuit all the powers which had been exercised by the Circuit Justice assigned to it. It was not the intention of Congress that the latter should be altogether relieved from circuit duty. He was to continue to sit, when he could, in the Circuit Court. A special section of the Act provided that it should be the duty of the Chief Justice and of each Justice of the Supreme Court to attend at least one term of the Circuit Court in each district of

1 Stuart vs. Laird, 1 Cranch, 298. 216 Stat. 44.

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