History of the Federal Judiciary


History of the Federal Judiciary


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The Judiciary Act of 1802
April 29, 1802.
2 Stat. 156.

CHAP. XXXI.––An Act to amend the Judicial System of the United States.

Be it enacted by the Senate and House of Representatives of the United Slates of America in Congress assembled, That from and after the passing of this act, the Supreme Court of the United States shall be holden by the justices thereof, or any four of them, at the city of Washington, and shall have one session in each and every year, to commence on the first Monday of February annually, and that if four of the said justices shall not attend within ten days after the time hereby appointed for the commencement of the said session, the business of the said court shall be continued over till the next stated session thereof. Provided always, that any one or more of the said justices attending as aforesaid shall have power to make all necessary orders touching any suit, action, writ of error, process, pleadings or proceedings returned to the said court or depending therein, preparatory to the hearing, trial or decision of such action, suit, appeal, writ of error, process, pleadings or proceedings. And so much of the act, intituled "An act to establish the judicial courts of the United States," passed the twenty-fourth day of September, seventeen hundred and eighty-nine, as provides for the holding a session of the supreme court of the United States on the first Monday of August, annually, is hereby repealed.

SEC. 2. And be it further enacted, That it shall be the duty of the associate justice resident in the fourth circuit formed by this act, to attend at the city of Washington on the first Monday of August next, and on the first Monday of August each and every year thereafter, who shall have power to make all necessary orders touching any suit, action, appeal, writ of error, process, pleadings or proceedings, returned to the said court or depending therein, preparatory to the hearing, trial or decision of such action, suit, appeal, writ of error, process, pleadings or proceedings: and that all writs and process may be returnable to the said court on the said first Monday in August, in the same manner as to the session of the said court, herein before directed to be holden on the first Monday in February, and may also bear teste on the said first Monday in August, as though a session of the said court was holden on that day, and it shall be the duty of the clerk of the supreme court to attend the said justice on the said first Monday of August, in each and every year, who shall make due entry of all such matters and things as shall or may be ordered as aforesaid by the said justice, and at each and every such August session, all actions, pleas, and other proceedings relative to any cause, civil or criminal, shall be continued over to the ensuing February session.

SEC. 3. And be it further enacted, That all actions, suits, process, pleadings and other proceedings, of what nature or kind soever, civil or criminal, which were continued from the supreme court of the United States, which was begun and holden on the first Monday of December last, to the next court to have been holden on the first Monday of June, under the act which passed on the thirteenth day of February, one thousand eight hundred and one, intituled, "An act to provide for the more convenient organization of the courts of the United States," and all writs, process and proceedings, as aforesaid, which are or may be made returnable to the same June session, shall be continued, returned to, and have day, in the session to be holden by this act, on the first Monday of August next; and such proceedings shall be had thereon, as is herein before provided.

SEC. 4. And be it further enacted, That the districts of the United States (excepting the districts of Maine, Kentucky, and Tennessee) shall be formed into six circuits, in manner following:

The districts of New Hampshire, Massachusetts and Rhode Island, shall constitute the first circuit;

The districts of Connecticut, New York and Vermont, shall constitute the second circuit;

The districts of New Jersey and Pennsylvania shall constitute the third circuit;

The districts of Maryland and Delaware shall constitute the fourth circuit;

The districts of Virginia and North Carolina shall constitute the fifth circuit; and

The districts of South Carolina and Georgia shall constitute the sixth circuit.

And there shall be holden annually in each district of the said circuits, two courts, which shall be called circuit courts. In the first circuit, the said circuit court shall consist of the justice of the supreme court residing within the said circuit, and the district judge of the district where such court shall be holden: and the sessions of the said court, in the district of New Hampshire, shall commence on the nineteenth day of May, and the second day of November, annually; in the district of Massachusetts, on the first day of June, and the twentieth day of October, annually; in the district of Rhode Island, on the fifteenth day of June, and the fifteenth day of November, annually.

In the second circuit, the said circuit court shall consist of the senior associate justice of the supreme court residing within the fifth circuit, and the district judge of the district, where such court shall be holden:

and the sessions of the said court in the district of Connecticut, shall commence on the thirteenth day of April, and the seventeenth day of September, annually; in the district of New York, on the first day of April, and the first day of September, annually; in the district of Vermont, on the first day of May, and the third day of October, annually.

In the third circuit, the said circuit court shall consist of the justice of the supreme court residing within the said circuit; and the district judge of the district where such court shall be holden: and the sessions of the said court, in the district of New Jersey, shall commence on the first day of April, and the first day of October, annually; in the district of Pennsylvania, on the eleventh day of April, and the eleventh day of October, annually.

In the fourth circuit, the said circuit court shall consist of the justice of the supreme court residing within the said circuit, and the district judge of the district where such court shall be holden: and the sessions of the said court, in the district of Delaware, shall commence on the third day of June, and the twenty-seventh day of October, annually; in the district of Maryland, on the first day of May, and the seventh day of November, annually; to be holden hereafter at the city of Baltimore only.

In the fifth circuit, the circuit court shall consist of the present chief justice of the supreme court, and the district judge of the district where such court shall be holden: and the sessions of the said court, in the district of Virginia, shall commence on the twenty-second day of May, and the twenty-second day of November, annually; in the district of North Carolina, on the fifteenth day of June, and the twenty-ninth day of December, annually.

In the sixth circuit, the said circuit court shall consist of the junior associate justice of the supreme court, in the fifth circuit, and the district judge of the district where such court shall be holden: and the sessions of the said court, in the district of South Carolina, shall commence at Charleston on the twentieth day of May, and at Columbia on the thirtieth day of November, annually; in the district of Georgia, on the sixth day of May at Savannah, and on the fourteenth day of December hereafter at Louisville, annually: Provided, that when only one of the judges hereby directed to hold the circuit courts, shall attend, such circuit court may be held by the judge so attending; and that when any of the said days shall happen on a Sunday, then the said court hereby directed to be holden on such day, shall be holden on the next day thereafter; and the circuit courts constituted by this act, shall be held at the same place or places in each district of every circuit, as by law they were respectively required to be held previous to the thirteenth day of February, one thousand eight hundred and one, excepting as is herein before directed. And none of the said courts shall be holden until after the first day of July next, and the clerk of each district court shall be also clerk of the circuit court in such district, except as is herein after excepted.

SEC. 5. And be it further enacted, That on every appointment which shall be hereafter made of a chief justice or associate justice, the said chief justice and associate justices shall allot themselves among the aforesaid circuits as they shall think fit, and shall enter such allotment on record. And in case no such allotment shall be made by them at their session next succeeding such appointment, and also, after the appointment of any judge, as aforesaid, and before any allotment shall have been made, it shall and may be lawful for the President of the United States to make such allotment as he shall deem proper, which allotment made in either case, shall be binding until another allotment shall be made; and the circuit courts constituted by this act, shall have all the power, authority and jurisdiction within the several districts of their respective circuits that before the thirteenth day of February, one thousand eight hundred and one, belonged to the circuit courts of the United States, and in all cases which, by appeal or writ of error, are or shall be removed from a district to a circuit court, judgment shall be rendered in conformity to the opinion of the judge of the supreme court presiding in such circuit court.

SEC. 6. And be it further enacted, That whenever any question shall occur before a circuit court, upon which the opinions of the judges shall be opposed, the point upon which the disagreement shall happen, shall, during the same term, upon the request of either party, or their counsel, be stated under the direction of the judges, and certified under the seal of the court, to the supreme court, at their next session to be held thereafter; and shall, by the said court, be finally decided. And the decision of the supreme court, and their order in the premises, shall be remitted to the circuit court, and be there entered of record, and shall have effect according to the nature of the said judgment and order: Provided, that nothing herein contained shall prevent the cause from proceeding, if, in the opinion of the court, farther proceedings can be had without prejudice to the merits: and provided also, that imprisonment shall not be allowed, nor punishment in any case be inflicted, where the judges of the said court are divided in opinion upon the question touching the said imprisonment or punishment.

SEC. 7. And be it further enacted, That the district of North Carolina shall be divided into three districts, one to consist of all that part thereof which, by the laws of the state of North Carolina, now forms the districts of Edenton and Halifax, which district shall be called the district of Albemarle, and a district court in and for the same shall be holden at Edenton by the district judge of North Carolina, on the third Tuesday in April, on the third Tuesday in August, and on the third Tuesday in December, in each and every year; one other to be called the district of Pamptico, and to consist of all that part of North Carolina which by the laws of the said state now forms the districts of Newbern and Hillsborough, together with all that part of the district of Wilmington which lies to the northward and eastward of New river; for which district of Pamptico, a district court shall be holden at Newbern by the district judge last aforesaid on the second Tuesday in April, on the second Tuesday in August, and on the second Tuesday in December in each and every year; and one other to consist of the remaining part of the said district of North Carolina, and to be called the district of Cape Fear, in and for which a district court shall be holden at Wilmington by the district judge last aforesaid, on the first Tuesday in April, on the first Tuesday in August, and on the first Tuesday in December, in each and every year; which said district courts hereby directed to be holden shall respectively have and exercise within their several districts, the same powers, authority and jurisdiction, which are vested by law in the district courts of the United States.

SEC. 8. And be it further enacted, That the circuit court and district courts for the district of North Carolina shall appoint clerks for the said courts respectively, which clerks shall reside and keep the records of the said courts at the places of holding the courts whereto they shall respectively belong, and shall perform the same duties and be entitled to and receive the same emoluments and fees, respectively, which are by law established for the clerks of the circuit and district courts of the United States respectively.

SEC. 9. And be it further enacted, That all actions, causes, pleas, process and other proceedings relative to any cause, civil or criminal, which shall be returnable to, or depending in the several circuit or district courts of the United States on the first day of July next, shall be and are hereby declared to be respectively transferred, returned and continued to the several circuit and district courts constituted by this act, at the times herein before and herein after appointed for the holding of each of the said courts, and shall be heard, tried and determined therein in the same manner and with the same effect, as if no change had been made in the said courts. And it shall be the duty of the clerk of each and every court hereby constituted, to receive and to take into his safe keeping the writs, process, pleas, proceedings and papers of all those causes and actions which by this act shall be transferred, returned or continued to such court, and also all the records and office papers of every kind respectively belonging to the courts abolished by the repeal of the act, intituled "An act to provide for the more convenient organization of the courts of the United States," and from which the said causes shall have been transferred as aforesaid.

SEC. 10. And be it further enacted, That all suits, process, pleadings and other proceedings, of what nature or kind soever, depending in the circuit court in the district of Ohio, and which shall have been, or may hereafter be commenced within the territory of the United States northwest of the river Ohio, in the said court, shall, from and after the first day of July next, be continued over, returned, and made cognizable, in the superior court of the said territory next thereafter to be holden, and all actions, suits, process, pleadings, and other proceedings as aforesaid depending in the circuit court of the said district, and which shall have been or may hereafter be commenced within the Indiana territory in said court, shall, from and after the first day of July next, be continued over, returned and made cognizable in the superior court of the said Indiana territory, next thereafter to be holden.

SEC. 11. And be it further enacted, That in all cases in which proceedings shall, on the said first day of July next, be pending under a commission of bankruptcy issued in pursuance of the aforesaid act, intituled "An act to provide for the more convenient organization of the courts of the United States," the cognizance of the same shall be, and hereby is transferred to, and vested in, the district judge of the district within which such commission shall have issued, who is hereby empowered to proceed therein in the same manner and to the same effect, as if such commission of bankruptcy had been issued by his order.

SEC. 12. And be it further enacted, That from and after the first day of July next, the district judges of Kentucky and Tennessee shall be and hereby are severally entitled to a salary of fifteen hundred dollars, annually, to be paid quarter-yearly at the treasury of the United States.

SEC. 13. And be it further enacted, That the marshals and attornies of the United States, for the districts which were not divided, or within the limits of which, new districts were not erected, by the act intituled "An act to provide for the more convenient organization of the courts of the United States," passed the thirteenth day of February, one thousand eight hundred and one, shall continue to be marshals and attornies for such districts respectively, unless removed by the President of the United States, and in all other districts which were divided or within the limits of which new districts were erected by the last recited act, the President of the United States be and hereby is empowered from and after the first day of July next to discontinue all such supernumerary marshals and district attornies of the United States in such districts respectively as he shall deem expedient, so that there shall be but one marshal and district attorney to each district; and every marshal and district attorney who shall be continued in office, or appointed by the President of the United States in such districts, shall have and exercise the same powers, perform the same duties, give the same bond with sureties, take the same oath, be subject to the same penalties and regulations as are, or may be prescribed by law, in respect to the marshals and district attornies of the United States. And every marshal and district attorney who shall be so discontinued as aforesaid shall be holden to deliver over all papers, matters and things in relation to their respective offices, to such marshals and district attornies respectively who shall be so continued or appointed as aforesaid in such district, in the same manner as is required by law in cases of resignation or removal from office.

SEC. 14. And be it further enacted, That there shall be appointed by the President of the United States, from time to time, as many general commissioners of bankruptcy, in each district of the United States, as he may deem necessary: and upon petition to the judge of a district court for a commission of bankruptcy he shall proceed as is provided in and by an act, intituled "An act to establish an uniform system of bankruptcy throughout the United States," and appoint, not exceeding three of the said general commissioners as commissioners of the particular bankrupt petitioned against; and the said commissioners, together with the clerk, shall each be allowed as a full compensation for their services, when sitting and acting under their commissions, at the rate of six dollars per day for every day which they may be employed in the same business, to be apportioned among the several causes on which they may act on the same day, and to be paid out of the respective bankrupt’s estates: Provided, that the commissioners, who may have been, or may be appointed in any district before notice shall be given of the appointment of commissioners for such district by the President in pursuance of this act, and who shall not then have completed their business, shall be authorized to proceed and finish the same, upon the terms of their original appointment.

SEC. 15. And be it further enacted, That the stated session of the district court, for the district of Virginia, heretofore directed to be holden in the city of Williamsburg shall be holden in the town of Norfolk from and after the first day of July next, and the stated sessions of the district court for the district of Maryland, shall hereafter be holden in the city of Baltimore only, and in the district of Georgia, the stated sessions of the district court shall be held in the city of Savannah only.

SEC. 16. And be it further enacted, That for the better establishment of the courts of the United States within the state of Tennessee, the said state shall be divided in two districts, one to consist of that part of said state, which lies on the east side of Cumberland mountain, and to be called the district of East Tennessee, the other to consist of the remaining part of said state, and to be called the district of West Tennessee.

SEC. 17. And be it further enacted, That the district judge of the United States, who shall hereafter perform the duties of district judge, within the state of Tennessee, shall annually hold four sessions, two at Knoxville, on the fourth Monday of April, and the fourth Monday of October, in and for the district of East Tennessee, and two at Nashville, on the fourth Monday of May, and the fourth Monday of November, in and for the district of West Tennessee.

SEC. 18. And be it further enacted, That there shall be a clerk for each of the said districts of East and West Tennessee, to be appointed by the judge thereof, who shall reside and keep the records of the said courts, at the places of holding the courts, whereto they respectively shall belong, and shall perform the same duties, and be entitled to, and receive the same emoluments and fees, which are established by law for the clerks of the district courts of the United States, respectively.

SEC. 19. And be it further enacted, That there shall be appointed, in and for each of the districts of East and West Tennessee, a marshal, whose duty it shall be to attend the district courts hereby established, and who shall have and exercise within such district, the same powers, perform the same duties, be subject to the same penalties, give the same bond with sureties, take the same oath, be entitled to the same allowance, as a full compensation for all extra services, as hath heretofore been allowed to the marshal of the district of Tennessee, by a law, passed the twenty-eighth day of February, one thousand seven hundred and ninety-nine, and shall receive the same compensation and emoluments, and in all respects be subject to the same regulations as are now prescribed by law, in respect to the marshals of the United States, heretofore appointed: Provided, that the marshals of the districts of East and West Tennessee, now in office, shall, during the periods for which they have been appointed, unless sooner removed by the President of the United States, be and continue marshals for the several districts hereby established, within which they respectively reside.

SEC. 20. And be it further enacted, That there shall be appointed for each of the districts of East and West Tennessee, a person learned in the law, to act as attorney for the United States within such district; which attorney shall take an oath or affirmation for the faithful performance of the duties of his office, and shall prosecute in such district, all delinquencies, for crimes and offences, cognizable under the authority of the United States, and all civil actions or suits, in which the United States shall be concerned; and shall be entitled to the same allowance, as a full compensation for all extra services, as hath heretofore been allowed to attornies of the district of Tennessee, by a law passed the twenty-eighth day of February, one thousand seven hundred and ninety-nine, and shall receive such compensation, emoluments and fees, as by law are or shall be allowed to the district attornies of the United States, respectively: Provided, that the district attornies of East and West Tennessee, now in office, shall severally and respectively be attornies for those districts within which they reside, until removed by the President of the United States.

SEC. 21. And be it further enacted, That all actions, suits, process, pleadings and proceedings, of what nature or kind soever, which shall be depending or existing in the sixth circuit of the United States within the circuit courts of the districts of East and West Tennessee, shall be and hereby are continued over to the district courts established by this act in manner following, that is to say: All such as shall on the first day of July next, be depending and undetermined, or shall then have been commenced, and made returnable before the circuit court of East Tennessee, to the next district court hereby directed to be holden, within and for the district of East Tennessee; all such as shall be depending and undetermined, or shall have been commenced and made returnable before the circuit court of West Tennessee, to the next district court, hereby directed to be holden, within and for the district of West Tennessee, and all the said suits shall then be equally regular and effectual, and shall be proceeded in, in the same manner as they could have been if the law, authorizing the establishment of the sixth circuit of the United States, had not been repealed.

SEC. 22. And be it further enacted, That the next session of the district court for the district of Maine, shall be holden on the last Tuesday in May next; and that the session of the said court heretofore holden on the third Tuesday of June annually, shall thereafter be holden, annually, on the last Tuesday in May.

SEC. 23. And be it further enacted, That all writs and process which shall have been issued, and all recognizances returnable, and all suits and other proceedings which have been continued to the said district court on the third Tuesday in June next, shall be returned and held continued to the said last Tuesday of May next.

SEC. 24. And be it further enacted, That the chief judge of the district of Columbia shall hold a district court of the United States, in and for the said district, on the first Tuesday of April, and on the first Tuesday of October in every year; which court shall have and exercise, within the said district, the same powers and jurisdiction which are by law vested in the district courts of the United States.

SEC. 25. And be it further enacted, That in all suits in equity, it shall be in the discretion of the court, upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions; which depositions shall be taken in conformity to the regulations prescribed by law for the courts of the highest original jurisdiction in equity, in cases of a similar nature, in that state in which the court of the United States may be holden: Provided however, that nothing herein contained shall extend to the circuit courts which may be holden in those states, in which testimony in chancery is not taken by deposition.

SEC. 26. And be it further enacted, That there shall be a clerk for the district court of Norfolk, to be appointed by the judge thereof, which clerk shall reside and keep the records of the said court at Norfolk aforesaid, and shall perform the same duties, and be entitled to, and receive the same fees and emoluments which are established by law for the clerks of the district courts of the United States.

SEC. 27. And be it further enacted, That from and after the first day of July next, there shall be holden, annually, in the district of Vermont, two stated sessions of the district court, which shall commence on the tenth day of October, at Rutland, and on the seventh day of May, at Windsor, in each year; and when either of the said days shall happen on a Sunday, the said court, hereby directed to be holden on such day, shall be holden on the day next thereafter.

SEC. 28. And be it further enacted, That the act, intituled "An act altering the time of holding the district court in Vermont," and so much of the second section of the act, intituled "An act giving effect to the laws of the United States within the state of Vermont," as provides for the holding four sessions, annually, of the said district court, in said district, from and after the first day of July next, be and hereby are repealed.

SEC. 29. And be it further enacted, That the clerk of the said district court shall not issue a process to summon, or cause to be returned, to any session of the said district court, a grand jury, unless by special order of the district judge, and at the request of the district attorney; nor shall he cause to be summoned or returned, a petit jury to such sessions of the said district court, in which there shall appear to be no issue proper for the trial by jury, unless by special order of the judge as aforesaid. And it shall be the duty of the circuit court in the district of Vermont, at their stated sessions, to give in charge to the grand juries, all crimes, offences and misdemeanors, as are cognizable, as well in the said district court, as the said circuit court, and such bills of indictment as shall be found in the circuit court, and cognizable in the said district court, shall, at the discretion of the said circuit court, be transmitted by the clerk of the said court, pursuant to the order of the said circuit court, with all matters and things relating thereto, to the district court next thereafter to be holden, in said district, and the same proceedings shall be had thereon in said district court, as though said bill of indictment had originated and been found in the said district court. And all recognizances of witnesses, taken by any magistrate in said district, for their appearance to testify in any case cognizable in either of the said courts, shall be to the circuit court next thereafter to be holden in said district.

SEC. 30. And be it further enacted, That from and after the passing of this act, no special juries shall be returned by the clerks of any of the said circuit courts; but that in all cases in which it was the duty of the said clerks to return special juries before the passing of this act, it shall be the duty of the marshal for the district where such circuit court may be held, to return special juries, in the same manner and form, as, by the laws of the respective states, the said clerks were required to return the same.

APPROVED, April 29, 1802.

 

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