Each justice of the Supreme Court is assigned to a circuit in which it is required by law that he shall hold court in each district at least once in two years. His services may also be required in the Circuit Court of Appeal of his circuit. In fact, however, since the erection of the Circuit Courts of Appeal the Supreme Court justices sit but seldom in the inferior courts.

§ 551. Circuit Courts of Appeal: Organization.

The Circuit Courts of Appeal created by the act of 1891 are each held by three justices. These may be the Supreme Court justice of the circuit, the circuit judges, or one or more of the district judges. Two judges constitute a quorum.

§ 552. Circuit Courts: Organization.

There are nine judicial circuits, each circuit being subdivided into districts. In some cases two circuit judges, and in other cases three or more, being appointed for each circuit. One justice of the Supreme Court is assigned to each circuit, and as thus assigned is termed circuit justice.

Circuit Courts may be held by the circuit justice, or by a circuit judge of the circuit, or by the district judge of the district, each sitting alone, or by any two of these judges sitting together.3

§ 533. District Courts: Organization.

There are now about eighty District Courts, nine of which are in the territories. In a few instances two districts are assigned to one judge. For each district a United States district attorney is appointed to represent the interests of the Federal Government. Marshals and other court officers are also provided. District judges must reside within their respective districts. They may, when assigned by the circuit judge or justice or the Chief Justice of the Supreme Court, hold the District or Circuit Court for anv disability to hold any federal office rests upon the judge. Thus Jay while Chief Justice was for a time Secretary of State, and also minister to England; Ellsworth while associate justice was minister to France; and Marshall while Chief Justice was for a time Secretary of State.

6 Rev. Stat., § 609.

other district of the circuit within which their districts lie, and any one of them may upon the designation of the Chief Justice hold the District and Circuit Court of any District in a Circuit contiguous to his own.

§ 554. Court of Claims: Organization.

This tribunal was established in 1855, and is at present composed of five justices. It sits at Washington, D. C., holding one term yearly, beginning the first Monday in December.

§ 555. Judiciary of the District of Columbia.

The courts of the District of Columbia consist of Police Courts, a Supreme Court, and a Court of Appeals. The Supreme Court consists of a chief justice and five associate justices, each of whom individually holds court for the trial of law, equity, and criminal cases. Thence an appeal lies to the Court of Appeals composed of a chief justice and two associate justices. From the Court of Appeals in certain cases an appeal or writ of error lies to the Supreme Court of the United States.

§ 556. The Supreme Court: Original Jurisdiction.

The jurisdiction of the Supreme Court is of two kinds – original and appellate. The appellate jurisdiction is, in turn, of two kinds; that coming by way of writ of error to the courts of the States, and that by appeal from the inferior federal tribunals. The original jurisdiction is determined by the Constitution, providing that "In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction."

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It has been held that it is not competent for Congress to give to the Supreme Court original jurisdiction in other than these specifically enumerated cases. This doctrine is deduced from the constitutional provision that "in all other cases . the Supreme Court shall have appellate jurisdiction, both as to law

Rev. Stat., § 591-4. 6a Art. III, Sec. II.

and fact, with such exceptions and under such regulations as the Congress shall make." 7

§ 557. Inferior Courts May Be Granted Jurisdiction of Cases Within the Original Jurisdiction of the Supreme Court. The implication from the foregoing, especially from the last clause, is that the Supreme Court may not take appellate jurisdiction in cases in which it might exercise original jurisdiction, and, therefore, that it would not be within the power of Congress to give to the inferior federal courts original jurisdiction over causes cognizable in the first instance by the Supreme Court. The point has never been squarely passed upon by the Supreme Court, but Congress has in fact, in a number of instances, granted such original jurisdiction to inferior federal courts, and there are a number of judicial dicta in support of the constitutionality of the practice. Indeed, by the original Judiciary Act of 1789, the Circuit and District Courts were given judisdiction in certain causes falling within the original jurisdiction of the Supreme Court as defined in the Constitution, and this congressional interpretation, practically contemporaneous with the adoption of the

8

7 Art. III, Sec. II, Cl. 3.

In Marbury v. Madison (1 Cr. 137; 2 L. ed. 60), in answer to the contention that the grant of jurisdiction to federal courts being a general one and containing no restrictive or negative words, Congress might, within its discretion, extend or restrict the grant of original jurisdiction to the Supreme Court, Chief Justice Marshall said: "If it had been intended to leave it in the discretion of the legislature to apportion the judicial power between the supreme and inferior courts according to the will of that body, it would certainly have been useless to have proceeded further than to have defined the judicial power, and the tribunals in which it should be vested. The subsequent part of the section is mere surplusage, is entirely without meaning, if such is to be the construction. . . . When an instrument organizing fundamentally a judicial system divides it into one supreme, and so many inferior courts as the legislature may ordain and establish, then enumerates its powers, and proceeds so far to distribute them as to define the jurisdiction of the Supreme Court by declaring the cases in which it shall take original jurisdiction; the plain import of the words seems to be, that in one class of cases its jurisdiction is original and not appellate, in the other it is appellate and not original."

8 Cf. Garland & Ralston, Constitution and Jurisdiction of the United States Courts, § 7.

Constitution, has never been repudiated, and the provisions in question were incorporated into the Revised Statutes." This interpretation, furthermore, has been judicially defended by Justice Nelson in Graham v. Stucken,10 by Chief Justice, Waite in Ames v. Kansas11 and Justice Field in United States v. Louisiana.12 In the Ames case the Chief Justice, after reviewing the long-continued construction of Congress and prior judicial dicta, says: "In view of the practical construction put on this provision of the Constitution by Congress at the very moment of the organization of the government, and of the very significant fact that from 1789 until now no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction." And in the latter cases, Justice Field says: "In Ames v. Kansas the question was very fully examined and the conclusion reached that the original jurisdiction of the Supreme Court in cases where a State is a party is not made exclusive by the Constitution, and that it is competent for Congress to authorize suits by a State to be brought in the inferior courts of the United States."

The case of Ames v. Kansas is practically conclusive of the question, though technically it cannot be said to be an exact precedent, for the case was not one brought originally in a lower federal court, but first instituted in a state court, and thence removed to the federal Circuit Court.

§ 558. Supreme Court: Appellate Jurisdiction.

The appellate jurisdiction of the Supreme Court, together with the entire jurisdiction of all the inferior federal courts is wholly13

9 §§ 629, 687.

10 4 Blatchf. 50.

11 111 U. S. 449; 4 Sup. Ct. Rep. 437; 28 L. ed. 482.

12 123 U. S. 32: 8 Sup. Ct. Rep. 17; 31 L. ed. 69.

13 Except that facts passed upon by a jury may not be reviewed by the Supreme Court, except so far as the rules of the common law permit.

within the control of Congress under the constitutional provision that "the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish," and that “in all other than original cases the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make."

These exceptions and regulations which Congress is thus authorized to make have reference to the granting and regulation of appeals to the Supreme Court. Congress thus may prevent the exercise of appellate jurisdiction by the Supreme Court by making no provision for appeals or writs of error from the lower federal or from the state courts, either by failing to grant original jurisdiction to the inferior courts, or by providing that their jurisdiction, when granted, shall be final.

That the appellate jurisdiction of the Supreme Court is within the control of Congress was strikingly manifested in the case of Ex parte McCardle.14 In this case the Supreme Court had assumed jurisdiction by appeal from a Circuit Court, the case argued, and taken under advisement, but while still undecided, Congress by an act deprived the court of appellate jurisdiction over the class of cases to which the one at issue belonged. There upon the Supreme Court dismissed the appeal for want of jurisdiction. This congressional action, it was known, had been taken to prevent the court from passing upon the constitutionality of certain reconstruction" measures. The court, however, said: "We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words."

§ 559. Appeals from Circuit and District Courts.

As at present by statute provided, the Supreme Court has the following appellate jurisdiction with reference to the Circuit Courts.

14 7 Wall. 506; 19 L. ed. 264.