CH. 187. seas are within the admiralty jurisdiction of the United States Art. 1.

courts.

§ 7. And whenever a party justifies his conduct or acts done by him, by virtue of a passport or letter of safe conduct, he justifies by force of a license given him, grounded on public law, and not by force of a private license, given him by the other party. This safe conduct or passport is in fact a license to him to whom given to do an act, and makes it lawful, which would be unlawful in itself, and without this letter of safe conduct. This, then, if used by the deft. in his defence and justification, must be specially pleaded, or may be in evidence as other licenses may, that is, according to the state of the pleadings, and the nature of the fact, whether criminal or civil.

CHAPTER CLXXXVII.

COURTS.

ART. 1. Courts.

§ 1. In every State in the Union there are two descriptions of courts, in which causes civil and criminal are decided and disposed of: the courts of the United States, sitting in each State and Territory, and at the seat of government; and the courts of the several States: none of these courts are by prescription, but all of them are constituted and established, and empowered to sit, act, and decide by constitutions and statutes, by which their powers and jurisdictions are gener. ally defined; but pleas and proceedings in them are partly by these constitutions and statutes, and partly by the common law. A fair view of these pleas and proceedings will afford a pretty correct perception how far our courts proceed according to the rules of the common law and English statutes; and how far by constitutions and our statutes, usages, and rules of practice, here originally made and established; as these courts are very numerous, have been, and are estab lished, and regulated, by a vast number of charters, constitutions, and statutes, continually varying in a young, free, and growing country, it would be as useless almost, as tedious, to attempt to consider them minutely, or even in detail. Hence, nothing more will here be attempted, than to give a

very concise view of the outlines of their powers and duties, CH. 187. and of the first principles of their organization.

§ 2. What is a court, as also a court of record. See Ch. 137, a. 3. What belongs to the judge, and what to the jury to decide; and what is a court of record, on whose proceed ings a writ of error lies; see the same chapter, in which this writ is considered.

Art. 1.

110.

§3. In England the king may appoint as many courts as 1 Woodeshe pleases, to proceed according to the general law. A power son, 97 to to fine, constitutes a court of record, and only such court can fine, (except for contempts in the face of the court.) The proceedings of a court of record are triable only by inspection of the record, as to the fact thereof having existed; they are removeable by writ of error after judgment rendered, and by certiorari before. They can protect and discharge suitors and witnesses from arrests in going to, and returning from court, and attending at them. Each justice of the peace, acting separately, is a judge of record; and so is the sessions a court of record. A court not of record cannot try a trespass vi et armis, because it cannot assess a fine. Its proceedings are tried, as to the truth of their existence, like other matters of fact, by a jury: are removeable by writ of false judgment; not by writ of error or certiorari.

388 &c -8

§ 4. Wherever there is a power in a court, de novo erect- 3 Bl. Com. ed by statute, to convict and fine, or imprison, there is a 25-12 Mod. court of record; but error does not lie if the mode of pro- c. 38.-See ceeding be unknown to the common law, though certiorari Error, Ch. does.

§ 5. "The Supreme courts of common law occasionally, and in certain cases, pay a regard to, and govern themselves by the law of nations; and particularly mercantile customs, which are a part of it; and both are said to be a part of the law of England, being adopted in matters pertinent to them." So both are a part of our law.

137.-Salk.

200.

1 Woodes

son, 126.

Admiralty courts pay special regard to the civil law; the 1 Woodesmaritime customs of civilized nations; the laws of Oleron; son, 138. customs of the British admiralty, and acts of parliament; but the admiralty court is not a court of record."

§ 6. By the civil law, is "meant, usually, the civil or mu- 1 Bl. Com. nicipal law of the Roman empire, as comprised in the Insti- 80-Also, Cooper's tutes, the Code, and the Digests of the emperor Justinian, and Justinian, 8 the Novel Constitutions of himself and some of his succes- to 11, he vasors." These Roman laws are, first, the constitutions of varies a little the kings: 2. The twelve tables of the decemvirs: 3. The stone. statutes made by the senate and people: 4. The edicts of the prætors: 5. The opinions of learned authorized lawyers: and 6. The imperial decrees or constitutions of succeeding

from Black

CH. 187. emperors. The present body of civil law was compiled about Art. 2. A. D. 553. The Institutes in four books, contain the first principles of the Roman common law; the Digests (or Pandects) in fifty books, the opinions of eminent lawyers; the New Code, a collection of imperial constitutions; the novel constitutions and additional code. The laws were lost many centuries, and finally the Digests were found at Amalfi, in Italy, about A. D. 1130. See 3 Com. D. 54, 64; 2 Com. D. 158, 159 and the Code was found at Ravenna.

1 Bl. Com. 82.

Constitution

of the United

States.-Art. 8, s. 1 &c.

§ 7. The Canon law, by which some courts in England are governed, is a body of Roman ecclesiastical law, relative to such matters as the church has, or pretends to have, the proper jurisdiction over. It is composed, 1st, Of the opinions of the ancient Latin fathers: 2. The decrees of general councils: 3. The decretal epistles and bulls of the Holy See, collected by one Gratian, about 1151, and subsequent ones collected by others; to these, in force in popish countries, may be added, the legatine and provincial constitutions adapted to the church in England.

ART. 2. Supreme Court of the United States.

§1. Though instituted at a late period, this is decidedly the highest court in the nation; and though the causes of which it has cognizance are not numerous, they are in general of the highest importance.

§ 2. By this constitution, "the judicial powers of the United States," is vested in this court, " and in such inferior courts as the Congress may from time to time ordain and establish." The judges of all of them hold their offices during good behaviour; and at stated times, receive for their services a compensation that cannot be diminished during their continuance in office.

§3. This judicial power extends, " to all cases, in law and equity, arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and mari time jurisdiction; to all controversies to which the United States shall be a party; to controversies between two or more states; between a state and citizens of another state; between citizens of different states; between citizens of the same state, claiming lands under grants of different states; and between a state, or the citizens thereof, and foreign states, citizens or subjects." "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a state," is a party, this Supreme Court has original jurisdiction, and in all other, the said cases, it has appellate jurisdiction, "both as to law and fact, with such exceptions and

under such regulations as the Congress shall make." The CH. 187. trial of all crimes except in cases of impeachment, is by jury, Art. 2. and in the state in which committed; but if not committed in any state, the trial of it is where Congress by law directs. And by the amendments of this constitution, in all capital cases, the accusation is by indictment found by a grand jury, and in all suits at common law, where the value in dispute exceeds $20, the right of trial by jury is preserved; "and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." This last clause seems to exclude, in such a manner, that Congress cannot enact otherwise, a trial, or reexamination, of a fact, in a writ of review; as this is known to the common law. In this clause the framers of this constitution appear to have been over cautious; no sound reason is perceived, or has been stated, to shew why all facts tried by a jury, shall be so absolutely re-examined according to the rule of the common law, that no law can be enacted, even by Congress, to institute any other mode of re-examination in such cases. The judicial act of Congress must be restrained by the constitution; as in ejectment between two citizens of Maryland, for land there, and the deft. sets up a title under a British subject, and alleged it is protected by treaty, and the State court decided against it. Held, the Supreme Court of the United States has no jurisdiction in the case, because none by the constitution. 5 Cranch, 344, Owings v. Norwood.

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

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

in criminal cases.

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

parties be

aliens.-Id.

420.

1 Cranch, rules of

court, 15, 18.

Act of Congress, Sept. 24, 1789.

Sect. 5, 6.

Section 7.

Section 11.

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

ART. 3. Circuit Courts.

ern;

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

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

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