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FEDERAL COURTS AND PRACTICE

PART I

CHAPTER I

INTRODUCTION

In the evolution of the common law of England, a process of centuries with derivative roots in the old Roman and Teutonic jurisprudence, the English courts have treated that system of legal procedure as an ever growing entity. This conception precludes any idea of inelasticity or finality in the practical operation of law and meets the requirements of mutable conditions. In this country the framers of the Constitution accepted this conception as well as the best features of the common law of England as it existed prior to the Revolution here; and it is the law of the land as it prevails to-day in all the States of the Union with the single exception of the State of Louisiana, which early adopted the Spanish system which in time was modified by the French. Each State has amended the original common law, as it found it, to meet varying conditions, but in its fundamental principles it remains substantially the same. The adoption of the Constitution, however, entailed an important difference in the application of the state laws and in that of the Federal laws. The state courts apply the principles of law and equity with a view wholly to determine whether there exists a wrong to be righted or a right to be affirmed. The Federal courts on the contrary must determine whether the cause before them comes within the terms of the constitutional grant of jurisdiction.

It appears to be the prevailing belief that the idea of a system of Federal courts for this country originated with

the framers of the Constitution and first found expression in that document. It is true that the system of Federal courts as it exists to-day first found expression in the Constitution but that system was founded on an earlier system which came into being by accident as it were. The old Congress, which framed the Articles of Confederation had no intention of creating Federal courts as they exist now; the plan was to turn over those accused of crime committed beyond the limits of the several States to the State where the offender was first brought or captured, for trial in the state court. This is clearly indicated in the ordinance of April 5, 1781.

ORDINANCE FOR ESTABLISHING COURTS FOR THE TRIAL OF PIRACIES AND FELONIES COMMITTED ON THE HIGH SEAS

Whereas, by the Ninth Article of the Confederation and perpetual union of the thirteen United States of America, it is agreed, that the United States in Congress assembled, shall have the sole and exclusive right and power (inter ali) of appointing courts for the trial of piracies and felonies committed on the high seas; And whereas it is expedient that such courts should be speedily erected, and it is reasonable that the same mode of trial should be adopted for offenders of this kind on the high seas, as is used for offenders of the like sort on land.

Be it, therefore, ordained, and it is hereby ordained, by the United States of America in Congress assembled, and by the authority of the same, That all and every person and persons, who heretofore have committed, or who hereafter shall commit, any piracy or felony upon the high seas or who shall be charged as accessaries to the same, either before or after the fact, may and shall be inquired of, tried, and judged, by grand and petit juries, according to the course of common law, in like manner as if the piracy or felony were committed upon the land, and within some county, district, or precinct, in one of these United States, the justices of the Supreme or Superior Court of Judicature, and judge of the Court of admiralty of the several and respective states, or any two or more of them, are hereby constituted and appointed judges for hearing and trying such offenders.

And be it further, ordained, That if any person or persons, shall be indicted for any piracy or felony done, or hereafter to be done, upon the high seas, or as accessaries before or after the fact, either on land or upon the seas, by a grand jury for any county, district or precinct, within any of these United States, before the justices of the Supreme or Superior Court and judge of admiralty, or any two of them, that then such order,

process, judgment, and execution shall be used, had, done, and made, to and against every such person and persons, so being indicted, as against robbers, murderers, or other felons, for robbery, murder, or other felony, done upon the land within such county, district, or precinct, as, by the laws of said State, is accustomed; and the trial of such offense or offenses, if it be denied by offenders, shall be had by twelve lawful men of the said county, district or precinct; and such as shall be convicted of any such offense or offenses, by verdict, confession, or otherwise, in the said court, shall have and suffer such pains of death, losses of lands, goods, and chattels, or other punishment, and by the same authority, as if they had been convicted and attainted of any robbery, felony, or other the said offenses done upon the land; and shall be utterly excluded the benefit of clergy, where the same is taken away or not admitted for such like offenses committed within the body of a county, or on land, where such trial shall be had.

And be it further ordained, That if there shall be more than one judge of the admiralty in any of the United States, that then, and in such case, the supreme executive power of such State, may and shall commissionate one of them, exclusively, to join in performing the duties required by this ordinance.

And be it further ordained, That all losses and forfeitures of lands, goods, and chattels, incurred upon any such conviction and attainder, shall go and belong to the State in which the said conviction and attainder shall be had.

This ordinance was followed by an amendatory ordinance on the fourth of March, 1783 as follows:

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AN ORDINANCE TO AMEND AN ORDINANCE, ENTITLED AN ORDINANCE FOR ESTABLISHING COURTS FOR THE TRIAL OF PIRACIES AND FELONIES COMMITTED ON THE HIGH SEAS."

Be it ordained by the United States in Congress assembled, and by the authority of the same, That the justices of the Supreme or Superior Courts of judicature, and the judge of admiralty, or any two of them, including the judge of admiralty in the several and respective states; or, in case there shall be several judges of the admiralty in a State, the justices of the Supreme or Superior Court of judicature, and a judge of the admiralty, to be commissioned for that purpose by the executive power of such State, or any two of them, including a judge of the admiralty, are hereby constituted and appointed a court for hearing and trying all offenders, who, in and by an ordinance, entitled "An ordinance for establishing courts for the trial of piracies and felonies committed on the high seas," passed the fifth day of April, one thousand seven hundred and eighty-one, are triable before the justices of the Supreme or Superior Court of judi

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