his circuit during every period of two years. This requirement remained on the statute book for more than forty years. During most of the latter part of that period it was little regarded.

The distinguished Justices of the Supreme Court were lawabiding citizens. As a rule they were hard workers, yet their days were only twenty-four hours long. The burdens of the Supreme Court became more and more onerous. It was simply impossible for its members to do circuit duty without neglecting the still more important work of the Supreme Court itself. A quarter of a century ago that Court was taxed beyond its capacity. In ordinary course it was several years after a case was docketed before it was reached for argument. Every year the Court fell further and further behind. Something had to be done. By the Act of March 3, 1891,2 intermediate Courts of Appeal were established, one in each circuit.

The same Act took from the Circuit Courts all appellate jurisdiction.

After the passage of the Circuit Court of Appeals Act there was, therefore, in each district two distinct Courtsthe Circuit and the District each of which was a Court of original jurisdiction only.

49. The Abolition of the Circuit Court.-In nearly all of the circuits the time and strength of the Circuit Judges were largely taken up by the work of the Circuit Court of Appeals. The Circuit Courts were ordinarily held by District Judges. In every district both the Circuit and District Courts had the same Marshal. In most of them the same clerk. There was no substantial reason for their separate existence. Accordingly, the Judicial Code provided that on the 31st of December, 1911, the Circuit Courts should be abolished. All their business and jurisdiction were transferred to the District Courts.

While they existed the Circuit Courts had original jurisdiction exclusive of that of the District Courts, of all the more important civil causes cognizable in the Federal Courts, other than those in admiralty and in bankruptcy.

226 Stat. 826.

50. Circuit Courts of Appeals.-As before stated, Circuit Courts of Appeals were created by the Act of March 3, 1891. There is one of them in each circuit. The Act which established them provided for the appointment of an additional Circuit Judge in each circuit. The Circuit Court of Appeals was to be composed of three Judges. If the Circuit Justice was present and both the Circuit Judges and no one of them was disqualified, the Court was made up of those three. The Circuit Justice was seldom at hand-perhaps not oftener than at one hearing out of a hundred. At that time the Circuit Judges still occasionally sat in the Circuit Courts. It sometimes happened that the appeals to be heard were from decisions or orders made by them. such cases they could not sit in the appellate tribunal. was therefore provided by law that the District Judges within each circuit should be competent to sit in the Court according to such order or provision among them as either by general or particular assignment should be designated by the Court. In this, and doubtless in the other circuits, it has been the practice of the Circuit Court of Appeals to designate the District Judges of the Circuit to sit in turn in the appellate tribunal.

In

It

In most of the circuits the number of Circuit Judges has been from time to time increased, so that in the Second and Eighth there are now four Circuit Judges and in all the other circuits, except the Fourth, three. In this circuit there are still but two, although JUDGE KNAPP, of the former Commerce Court, is now regularly assigned to it. For the moment, therefore, we have three Judges. A very considerable part of the work of the Circuit Court of Appeals of this circuit has in the past fallen upon the District Judges. By law never more than three Judges sit in the Circuit Court of Appeals. The Court may be held by two Judges and occasionally is. It is far better that three shall sit. If a case is heard by two and they happen to differ in opinion, either the decree below is affirmed by a divided Court, or, more usually, a re-argument is ordered. Neither alternative is in itself desirable.

51. No Judge May in the Circuit Court of Appeals Hear an Appeal From Himself. When Justices of the Supreme Court went on circuit and heard cases in the Circuit Courts, there was no rule of law which forbade their taking part in the hearing and decision of an appeal or writ of error from their judgment or decree. In earlier years it was not unusual for them to do so. Now they seldom sit below at all. In our day when Circuit and District Judges have been promoted to the Supreme Bench they usually have been careful to have nothing to do with appeals in any case in which they sat below. They have the legal right so to do if they wish. They have usually thought it well to refrain. When the Circuit Courts of Appeals were created it was expressly provided that no Justice or Judge before whom a cause or question may have been tried or heard in a District Court or existing Circuit Court shall sit on the trial or hearing of such cause or question in the Circuit Court of Appeals. This provision of law has recently been construed by the Supreme Court of the United States, and it has held that no member of the Circuit Court of Appeals may sit in any case in which there is to be reviewed any order or decision made by him. below.1

52. Jurisdiction of the Circuit Court of Appeals.These Courts were intended primarily to relieve the Supreme. Court. Accordingly, most, though not all, appeals from the District Courts are taken to the Circuit Court of Appeals. A few cases may still be taken directly from the District Court to the Supreme Court.

A discussion of the appellate jurisdiction of the Federal Courts is reserved for a later chapter.

53. The Circuits.-There are at present nine circuits. Since 1802 there have always been precisely as many circuits as there were Justices of the Supreme Court. Since 1837, as we have seen, that number has been nine, except for a period of about six years from 1863 to 1869, when it was ten. The present nine circuits are very unequal, both in

'Rexford vs. Brunswick-Balke-Collender Co., 228 U. S. 339.

population and in area. Thus, the First is made up of Maine, New Hampshire, Massachusetts and Rhode Island. It has an area of little more than 50,000 square miles. Its population is about five millions. As it has only four District Judges it may be assumed that the volume of Federal litigation in it is not great. The Eighth Circuit, on the other hand comprises twelve States, any one of which is nearly or quite as large as the entire First Circuit. It extends from the Canadian boundary of Minnesota and North Dakota to the Mexican border of New Mexico. It has more than fifteen million inhabitants. There are eighteen District Judges in it. Some re-arrangement of the circuits would seem to be desirable.

54. The Fourth Circuit.-Maryland is in the Fourth Circuit, which includes beside it the Virginias and the Carolinas. It is divided into nine districts-that of Maryland, the Eastern and the Western Districts of Virginia, the Northern and Southern of West Virginia, the Eastern and Western of North Carolina, and the Eastern and Western of South Carolina. As the law provides that the same Judge shall be the Judge of both districts in South Carolina, there are only eight District Judges for the nine districts of this circuit.

55. Federal Courts of Special Jurisdiction.—As has been stated, the jurisdiction of a District Court is limited to its district, and of a Circuit Court of Appeals to its circuit, but there are other inferior Courts of the United States whose writ runs throughout the Union, but whose jurisdiction is limited to special classes of cases. There are two such tribunals the Court of Claims and the Court of Customs Appeals.

56. The Court of Claims.-The Court of Claims was originally established by the Act of February 24, 1855,1 for the purpose of hearing and determining all claims founded upon any law of Congress or upon any regulation of an executive department, or upon any contract, express or im

110 Stat. 612.

plied, with the Government of the United States; or which might be referred to it by either House of Congress. It was created for the "triple purpose of relieving Congress and of protecting the Government by regular investigation and of benefiting the claimants by affording them a certain mode of examining and adjudicating upon their claims." Originally it was a Court merely in name, for its power extended only to the preparation of bills to be submitted to Congress.3 In 1863 the number of its Judges was increased from three to five. Its jurisdiction was somewhat enlarged. Instead of being required to prepare bills for Congress, it was authorized to render final judgment, subject to appeal to the Supreme Court, and to an estimate by the Secretary of the Treasury of the amount required to pay each claimant.1

Subsequent to the passage of the Act of 1863, the Supreme Court held that the Court of Claims was not one of the inferior Courts of the United States within the constitutional meaning of that phrase.

That Act had provided that a claimant whose claim had been allowed by the Court, or upon appeal by the Supreme Court, should be paid out of any general appropriation made by law for the payment and satisfaction of private claims, but no payment was to be made until the claim allowed had been estimated for by the Secretary of the Treasury, and Congress upon such estimate had made an appropriation for its payment.

Neither Court could by any process enforce its judgment. Whether that should be paid or not did not depend on the decision of either Court, but upon the future actions of the Secretary of the Treasury and of Congress. There was no question that Congress could create the Court of Claims. No harm was done by calling it a Court. Congress can establish tribunals with special powers to examine testimony and decide in the first instance upon the validity and justice of any claim against the United States. It may lawfully subject the decisions of such tribunals to the

3

United States vs. Klein, 13 Wall. 144.

United States vs. Klein, supra; Gordon vs. United States, 2 Wall.

Act March 3, 1863, 12 Stat. 765; 117 U. S. 697.