Gazette of the United-States. (New-York [N.Y.]) 1789-1793, November 11, 1789, Page 244, Image 4

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    Remainder of the JUDICIAL ACT.
(Begun in our laj}.)
AND be it further enaflfd, That it shall be the duty of circuit
courts, in causes in equity and of admiralty and maritime jurif
didtion, to cause the fadls on which they found their sentence or
decree,tully to appear upon the record either fronvtheir pleadings
and decree ltfelf, or a state of the cafe agreed by the parties, or
their council, or if they disagree, by a fluting of the cafe by the
And be it further enaftcd, That where in a circuit couit, a plain
tiff in anadtion, originally brought there, or a petitioner in equity,
other than the United States, recovers less than the sum or value
of five hundred dollars, or a libellant, upon his own appeal, less
than the sum or value of three hundred dollars, he lhall not be al
lowed, but at the difcrction of the court, may be adjudged to pay
And be it further enaEled, That from final decrees in a diftridl
court in daufes of admiralty and maritime jurildidlion, where the
matter in dispute exceeds the sum or value ot three hundred dol
lars, exclusive of coils an appeal (hall be allowed to the next cir
cuit court, to be held in such di ft rift. Provided, nevertheless, that
such appeals from final decreesas aforefaid, from the diftridl court
of Maine, shall be made to the circuit court next to be holden after
each appeal in the diftridl of Maflachufctts.
Aud be it further enafled, That final decrees and judgments in
civil adlions in a diftridl court, where the matter in dispute ex
ceeds the fumorvalue of fifty dollars, exclusive of costs, maybe
re-examined, and reversed or affirmed in the circuit court, holden
in the fame diftridf, upon a writ of error, whereto (hall be annexe#
and returned therewith at the day and place therein mentioned,
an authenticated tranfeript of the record, and alignment of errors,
and prayer for reversal, with a citation to the adverse party, signed
by the judge of such did rift court, or a justice of the Supreme Court,
the adverle party having at leall twenty days notice, And upon
a like process, may final judgments and decrees in c vil adlions,
and suits in equity in a circuit couit, brought there by original pro
cess, or removed there from courts of the fever a I States, or remov
ed there by appeal from a diftridl court where the matter in dis
pute excecds the sum or value of two thousand dolUis, exclulive
of costs, be re-examined and reversed or affirmed in the Supreme
Court, the citation being in luch cafe finned by a judge of such
circuit court, or justice of the Supreme Court, and the adverse
party having at lealt thirty days notice. But there lhall be no rc
vei sal in either court on such writ of cuor for error in ruling any
plea in abatement,other than a plea tothe jurifdidlion of the court,
or i'uch plea to a petition or bill in equity, as in the nature of a
demurrer, or for any error in fadl. And writs of error (hall not
be brought but within five years after rendering or parting the judg
ment or decree complaincd of, 01 in cafe the person entitled to such
writ of error be an infant./fW-r covert, von combos mentis, or imprifon
ed,then within five years as aforefaid, exclusive of the time of such
disability. And evei v justice or judge liguing a citation on any
writ of error as aforefaid, shall take good and fufiicicnt security,
that the plaintiff in error lhall prosecute his writ to cffedl, and an
swer all damages and costs if he fail to make his plea good.
And be it Jurtherrratledf Tha: a writ of error as afore said shall be
afuperfedi i 3 and stay execution .u cases onlv where the writ of
error is fer-'ed, by a copy therol being lodged for theadverfe party
i n the clerk's office, where the record remains within ten days, Sun
days exclusive, after lendeiing the judgment or palling the decree
complaincd of until the expiration of which term often days, exe
cuitons shall not issue in any cafe where a writ of error may be a fu
perfedeas; and whereupon such writ of error the Supreme or circuit
court shall affirm a judgment or decree, they Oiall adjudge ordccrec
to the respondent in error just damages for his delay, and single or
double costs at their difcrction.
Andbeitfurther enafled y Thzt when a judgmentor decree shall be re
versed in a circuit court,fuch court shall proceed to render such judg
ment or pass such decree as the diftridl court should have rendered or
parted ; and the Supreme Court shall do the fame on leverfals there
in, except where the reverfa) is in favor of the plaintiff, or petitioner
in the original suit. and the damages to be afteffed, or m alter to be
decreed, are uncertain, in which cafe they shall remand the caiife
for a final decision. And the Supreme Court lhall not iflue exe
cution in causes that are removed before them by writs of error,
but shall fend a special mandate to the circuit coOrt to award exe
cution thereupon.
And be it further enabled. That a final judgment or decree in any
suit, in the highest court of law or equity of a State in which a
decision in the suit could be had, where is drawn in question the
validity of a treaty or statute of, or an authoi itv exeicifed under the
United States, and the decision is against their validity; 6r where is
drawn in question the validity of a statute of, or an authority excr
cifed under any State, on the ground of their being rcpugnat to the
conflitution, treaties or laws of the United States, and the decision is
in favor of such their validity, or where is drawn in question the
confttudlion of any claufc of the conflitution, or of a treaty. 01 sta
tute of, or coinmiflion held under the United States, and the de
cision is against the title, right, privilege or exemption specially
set up or claimed by either party, under such clause of the laid
conflitution, treaty} statute or commiftion, may be re-xamined
and reversed or affirmed in the Supreme Court of the United States
upon a writ of error, the citation being signed by the Chief Justice
or Judge or Chancellor of the Court, rendering or palling the
judgment or decree complained of, or by a justice of the Supiemc
Court of the United States, in the fame manner and under the
fame regulations, and the writ shall have flie fame effedl, as if the
judgment or decree complained of had been rendered or parted
111 a'circuit court, instead of remanding the cause for a final deci
sion as before provided, may at their difcrction, if the cadfe shall
have been once remanded before, proceed to a final decision of the
fame, and award execution. But no other error shall be artigned
or regarded as a ground of revcrfal in any such cafe as aforefaid,
than such as appears on the face ot the record and immediately re
fpedls the beforementior.ed qucftionS of validity or conftrudlion of
the said conflitution, treaties, commiflions, or authorities
in dispute.
Andbeit further eifqFitd, That in all cases brought before either
oj the couit of the United States to recover the forfeiture annex
ed to any articles of agreement, covenant, bond or other speciality,
■where the forfeitarA, breach or non-perfOrinancc lhall appear, by
the default or confefrion of the defendant or upon demurrer, the
c ourt before whom the adlion is, shall render judgment therein for
the plaintiff to recover so much as is due according to equity. And
wljeii the sum for which judgment shall be rendered is uncertain,
the fame shall, if cither of the parties requefl it, be alfeffed by a
And be it further cnafted, That a marshall shall be appointed in
and for each diftridl for the term of four years, but shall be remove
able from office at pleasure, whose duty it lhall be, to attend the
diftridl and circuit courts when fitting therein, and also the Su
preme Court in the diftridl in which that court fl.all fit. And to
execute throughout the diftridf, all lawful precepts diredled to him,
and iffucd under the authority of the United States, and he shall
have power to command all necessary aftillance in the execution of
liiSdutyj and to appoint as their shall be occasion, one or more
deputies, Who shall be removable from office by the judge of the
diftridl couit. or the circuit Court fitting within the diftridl, at the
pleasure of either, and before he enters on the duties of his office,
he shall become bound for the faithful performance of the fame,
by himfelf and by his deputies before the judge of the diftridl court
to the United States, jointly and severally, with two £ood and
fufficient ftneties, inhabitants and freeholders of such diftridl, to
be approved by the diftridl judge, in the sum of twenty thousand
dollais, and take before said judge, as shall also his deputies,
before they enter 011 the duties of their appointment, the follow
ing oath of office : tl lA. P. do fo'lemnly fwcar or cffirm ;
u that I will faithfully execute all lawful precepts dire&ed to the
41 marshal of the diftrift of under the authority
"of the United States, and true returns make, and in all
" things well and truly, and without malice or partiality, perform
44 the duties of the office ot marshal (or marfhai's deputy, as the cafe
44 may be) of the diftrift of during my continuance
44 in said office, and take only my lawful lees. So help me God."
And be it further enaflcd, That in all causes wherein the marshal
or his deputy (hall be a party, the writs and precepis therein shall
be directed to such difmterefted person as the court, or any justice
or judge, thereof may appoint, and the person so appointed, is
hereby authorised to execute and return the fame. And in cafe of
the death of any marshal, his deputy or deputies lhall continue in
office, unless other wife fpccially removed ; and shall execute the
fame in the name of the decealed, until another marshal be ap
pointed and sworn : And the defaults or misfeafances in office
of the deputy or deputies in themean time, as well as before., ffial)
be adjudged a breach of the condition of the bond given, as before
diicfled, by the marshal who appointed them ; and the executor or
administrator of the deccafed ruarfhal (hall have like icmcdyforthe
defaults and misfeafances in office of such deputy or deputies during
such interval, as they would be entitled to it the marshal had con
tinued in life and in the efcerciie of his said office, until his fuc
cefTor was appointed, and sworn or affirmed : And every marshal
or his deputy when removed from office, or when the term for
which the marflial is appointed (hall expire, shall have power not
withstanding to execute all sUch precept* as may be in their hands
refpcftivelv at the time of such removal 01 expiration of office; and
the hiarfhal (hall be held anl vrerable for the delivery to his fuccefTor
of all prisoners Which may be in his custody at the time of his re
moval, or when the term for which he is appointed fnall expire, and
for that purpose may retain such priloners in his fuccefTor until his
fucccffor shall be appointed and qualified as the Jaw diredls.
And be it further enabled, That in cases punishable with death, the
trial shall be had in the county Ivhere the offence was committed,
or where that cannot be done without great inconvenience, twelve
petit jurors at leafl shall be summoned from thence. And jurors
in all cases to serve in the cOurts of the United States shall be de
signated by lot or otherwise in each State refpe&ively accord
ing to the mode of forming juries therein now pra&ifed, so
for as the laws of the fame lhall render such dcfignation prac
ticable by the courts or marihals of the United States; and the
jurors shall have the fame ejUalifications as are requisite for ju
rors by the laws of the State of which they are citizens, to serve in
the highest courts of law of such State, and shall be returned as there
shall be occasion for them, from such parts of the diftrift from
time to tune as the court (hall dire&, so as shall be moil favor
able to an impartial trial, and so as not to incur an unnecefTary
expence, or unduly to burthen the citizens of any part of the di
ftrift with sUch services. And writs of veJtirefacias when direct
ed by the court shall iftue from the clerk's office, and (hall be ser
ved and returned by the marshal in his proper person, or by his
deputy, or in cafe the marshal or his deputy, is not an indiffer
ent person, or is interested in the event of the cause, by such fit
person as the court shall specially appoint for that purpose, to
whom they shall administer an oath or affirmation that he will
truly and impartially serve and return such writ. And when from
challenges or otherwise there shall not be a jury to determine any
civil or criminal cause, the marshal or his depnty shall, by order
of the court where such defeffc of jurors (hall happen, return jury
men tie talibus circurrjlantibus fufficient to complete the pannel;
and when the marshal or his deputy are disqualified as aforefaid,
jurors may be returned by such dilintereftad person as the court
lhall appoint.
And be itfurther etiafied, That the mode of proof by tfral
mony and examination of witnefTes in open court (hall be the
fame in all the courts of the United States, as well in the trial of
causes in equityand of admiralty and maritime jurifdi&ion, as of
actions in common law, And when the testimony of a fly person
shall be ncccfTary in any civil cadfe depending in any diflrift in
any court of the United States, who (hall live at a greater distance
from the place of trial than one hundred iViiles 9 or is bound on a
voyage to sea, or is about to go out of the United States, or out
of such diftritt, and to a greater distance from the place of trial
than as aforefaid, before the time of trial, or is ancient or very
infirm, the deposition of such person may be taken de bene ejfe
before any justice or judge of any of the courts of the United States,
or before any chancellor, justice or judge of a supreme or superi
or court, mayor or chief magistrate of a city, or judge of a county
court or court of common picas of any of the United States, not
being of cocncil or attorney to either of the parties, or interested
in the event of the cause, provided that a notification from the ma
gistrate before whom the denofltion is to be taken to the adverse
party, to be present at the taking of the fame, and to put interro
gatories, if he think fit, be full made out and served on the ad
verse party or his attorney as either may be nearest, if either is
within one hundred miles of the place of such caption, allowing
time for their attendance after notified, not less than at the rate
oi one day, Sundays exclusive, for every twenty miles travel.
And in causes of admiralty and maritime jurifdidlion, or other
cases of seizure when a libel shall be filed, in which an adverse
party is not named, and depositions of persons circumstanced as
aforefaid fhali be taken before a claim be put in, the like notifica
tion as aforefaid shall be given to the person having the agency or
poflefflon of the property libelled at the time of the capture or
seizure of the fame, if known to the libellant. And every per
son deposing as aforefaid shall be carefully examined and caution
ed, and sworn or affirmed to teftify the whole truth, and (hall
fubferibe the testimony by him or her given after the fame (hall be
reduced to writing, which shall be done only by the magistrate
taking the deposition, or by the deponent in his presence. And
the deposition so taken (hall be retained by such magistrate until
he deliver the fame with his own hand into the court for which
they are taken, or shall, together with a certificate of the reasons
as aforefaid of their being taken, and of the notice if any given to
the adverse party, be by him the said magistrate sealed Up and di
rected to fueh court, and remain under his seal until opened in
court. And any person may be compelled to appear and depose
as aforefaid in the fame manner as to appear and teftify in court.
And in the trial of any cause of admiralty or maritime jurifdic
tioni in a diftritt court, the decree in which may be appealed
from, it either party shall suggest to and fatisfy the court that pro
bably it will not be in his power to produce the witnefTes there
tcftifying before the circuit court (hould an appeal be had, and
shall move that their testimony be taken in writing, it shall
be so done by the clerk of the court. And if an appeal be had,
such testimony may be used on the tfial of the fame, if it (hall
appear to the fatisfaCfion of the court which shall try the appeal,
that the witnefTes are then dead or gone out of the United States
or to a greater distance than as aforefaid from the place where the
court is fitting, or that by reason of age, sickness, bodily infirmi
ty or imprifonmcnt they are unable to travel and appear at court,
but not otherwise. And unless the fame shall be made to appear
on thetrial of any cause, with refpeft to witnefTes whole deposi
tions may have been taken therein, such depositions shall not be
aomitted or used inthe cause. Provided, That nothing herein fhali
be construed to prevent any court of the United States from grant
ing a dedimus potejlatem to take depositions according to common
when it maybe necefTuy to prevent a failure or delay of
juflice ; which power they lhall severally poflfefs, nor to extend to
depositions taken in ferpctuam rei memoriam, which if they relate
to matters that may be cognizable in any court of the United
States, a circuit court on application thereby made as a court of
equity, may, according to the usages in chancery direct to be
taken. ;
And be it further enaSed, That where any suit shall be depend
in <r , n any court of the United States, and cither of the parties
(hall die before final judgment, the executor or administrator of
such ucccaf d party who was plaintiff,- petitioner or defendant.
in cafe tfie cauft of action doth by law survive, shall have f 1
power to prosecute of defend any 'such suit or a'ftion untiH l
judgment ; and the defendant or defendants are hereby obliged t
answer thereto accordingly ; and the court before whom f ?
cafe may be depending is hereby empowered and dire&ed to |T'
and determine the fame, and to render judgment for or acainft
the executor or administrator, as the cafe may require And !
such executor or administrator having been duly lerved with'l
fcire facias f rom the office of the cleikof the court where 1Y
suit is depending twenty days beforehand, ihall neglect 0 r refuf
to become a party to the suit, the court may render iud-menu
gainst the eftateof the decealed party, in the fame manner as if
the executor or administrator had voluntarily made himfelf a pa -
ty to the suit: And the exccutor or administrator who shall be"
come a party as aforefaid, lhall, upon motion to the court where
the suit is depending, be entitled to a continuance of the fame
until the next term of the said court. And if there be two
more plaintiffs or defendants, and one or more of them (halldie
if the cause of action lhall survive to the surviving plaintiff or plain'
tiffs, or against the surviving defendant or defendants, the wist
or action shall not be thereby abated ; but such death fa
gelled upon the record, the action shall proceed at the suit of th"
surviving plnntiff or plaintiffs against the surviving defendant or
And be it father enafled, That no lummons, writ, declaration
return, process, judgment, or other proceedings in civil caules in
any of . the courts of the United States, shall be abated, arrelied
quashed or revei fed, for any defect or want of form, but the laid
courts refpeftively (hall proceed and give judgment according a.<
therightof the cause and matter inlaw shall appear unto then
without regarding any imperledlions, defers, or want of formin
such writ, declaration or other pleading, return, process, judg
ment, or course of proceeding whatsoever, except those only i n
cases of demurrer, which the party demurring lhall specially fit
down and txprefs together with his demurrer as the caufcthereof
And the said courts refpcftivly (hall and may, bv virtue of this ast
from time to time, amend all and every such imperft&ions,
fefts and want of form, other than thole only which the party de
murring shall exprefsas aforclaid, and may at any time perni't ei
ther of the partu s to amend any defect in the process or pleadiu
upon such conditions as the said courts refpeftively lhall in their
difcrction, and by their rules preferibe.
And be it further enaded, That for any crime or offence agair.!}
the United Slates, the oftV»der may. by any jufticeor jud.e of
the United States, or by any justice of the peace, or other
flrate of any of the United States where he may be found agreea
bly to the usual mode of proctfi against offenders infucli State
and at the expcnce of the United States, be arrested, and impn
fonedor bailed, as the cafe may be, for trial before such courtof
the United States as by this ast has cognizance of the offence:
And copies of the process shall be returned as speedily as may be
into the clerk's office of fuchcourt, together with the recognizan
ces of the witnesses for their appearance to teftify in the cafe;
which recognizances the magi Urate before whom the examination
shaM be, may require on pain of imprisonment. And if such
commitment of the offender, or the witnesses shall be in a diftritt
other than that in which the offence is to be tried, it shall be the
duty of the judge of that diftrift where the delinquent is impri
foncd, seasonably to issue, and of the marshal of the famediftrift
to execute, a warrant for the removal of the offender, and the wit
nesses, of either of them, as the cafe may be, to the diftrift ia
which the trial is to be had. And upon allarrefts in criminalca
fes, bail shall be admitted, except where the punishment may be
death, in which cases it shall not be admitted but by the supreme
or a circuit court, or by a justice of the supreme court, or a judge
of a diftrift court, who shall exercise their difcrction therein,
regarding the nature and circumftanccs of the offence, and of the
evidence, and the usages of law. And if a person committed bf
a justice of the supreme or a judge of a diftrift court foranof
fencenot puuifhable with death, shall afterwards procure bail,
and there be no judge of the United States in the diftrift to take
the fame, it may be taken by any judge of the supreme, or fupen
or court of law of such State.
And be it further enafled, That the laws of the several States ex
cept where the constitution, treaties or statutes of the United
States shall otherwise require or provide, shall be regarded as
rules of decision in trials at common law in the courts of the U
nited States in cases where t .ey apply-
And be it further enacted, That in all the courts of the United
States,the parties may plead and manage their own causes person
ally or by the assistance of such counsel or attornies at law as by the
rules of the said courts refpeftively shall be permitted to manage
and conduct causes therein. And there shall be appointed in each
d ifti ift a meet person learned in the law to ast as attorney for the
United States in such diftrift, who shall befworn or affirmed to
the faithful execution of his office, whose duty it shall be to pro
secute in such diftrift all delinquents for crimes and offences,cog
nizable under the authority of the United States, and all civil ac*
tions in ivhichthe United States shall be concerned, except befoie
the supreme court in the diftrift in which that court shall be hold
en. And he shall receive as a compensation for his services iuch
fees as shall be taxed therefor in the refpeftive courts before which
the suits or prosecutions shall be. And there shall also be appoint
en a meet person, learned in the law, to ast as attorney-general
for the United States, who shall be sworn or affirmed, to a faith
ful execution of his office ; whose duty it shall be to prosecute and
conduct all suits in the supreme court in which the United States
shall be concerned, and to give his advice and opinion uponquel
tions of law when lequired by the President ot the United States,
or when requested by the heads of any of the departments, touch
ing any matters that may concern their departments, and sna
leceive such compensation for his services as shall by law
Speaker of the House of Rep)efentativfr
JOHN ADAMS, Vice-President of the United States,
and President of the Sentfa
Approved, September 24, 1789.
GEORGE WASHINGTON, PrefidtutjJ the United
EXAMPLES are more powerful to persuade
than either precept or force ; and should viituf
be universally pra<ftifed by those whom the » or
look up to as models, the converts to goo n >
would not be so few as they now are : men . c^ ie
have a bright exemplar before them. V e
known our beloved President to be every 11 a
that is great, heroic and magnanimous \V e
read his moral precepts —and we have
pratfiifing the morality of his writings.
tive to the duties of his high station,_ e !1 ®
thelefs gives conftantattendance on Divine
(hip—nor does he ever permit feculai -
break in upon the duties of the Sabbatn.
alt love the President—greatly revere ' u ''
us then imitate every trait in his chaiac e.
is in our power, by copy inghis moral wit"
shall find as he cxprefles it, an iiulil ou. ffeen
nedtion between duty and advantage— ,j !S
a just and religiouslife andconvei iatiori
solid rewards, peace and happineiS. L' ,
Publifked by JOHN b'KNNO, No. 9>
near tb. Nr.v-T»'^S*'