ERROR from the fifth circuit in the Virginia district.
A judgment was obtained by the defendant in error, in the court of the United States for the middle circuit, in the Virginia district, in an action instituted in that court in January 1801, for a debt due by the plaintiff in error to him, for and on behalf of Laird and Robertson of Port Glasgow, Great Britain.
The middle circuit court in the Virginia district was established by the judiciary act of 1789, and continued until the 13th of February 1801, when an act was passed, entitled 'an act to provide for the more convenient organization of the courts of the United States.' 1 Story's L. U. S. 797.
By the twenty-first section of that act, all cases depending in the middle circuit court in Virginia, were transferred to other circuit courts, established by that law; and by the 'act to repeal certain acts respecting the organization of the courts of the United States, and for other purposes,' passed 8 March 1802, the provisions of the judiciary act of 1789 as to the middle circuit court of Virginia were revised, and re- enacted.
The case in the middle circuit court, went from that court in February 1801, to the court established by the act of 13 February 1801; and it afterwards, on the repeal of that law, returned to the court in which it was originally commenced. While it was pending in the court established in February 1801, certain proceedings were had, which were brought up with the record, and to which the exceptions were taken by the defendant below, and were presented for the consideration of this court.
The exceptions before this court were, 1. That congress could not transfer causes from one circuit court to another; and therefore all the proceedings in the court established by the act of February 13, 1801, were void. 2. That the justices of the supreme court of the United States could not by an act of congress be assigned to hold circuit courts.
[5 U.S. 299, 308] Mr. Chief Justice Marshall having tried the cause in the court below, declined giving an opinion.
Mr. Justice PATERSON delivered the opinion of the court.
On an action instituted by John Laird against Hugh Stuart, a judgment was entered in a court for the fourth circuit in the eastern district of Virginia, in December term 1801. On this judgment, an execution was issued, returnable to April term 1802, in the same court. In the term of December 1802, John Laird obtained judgment at a court for the fifth circuit in the Virginia district, against Hugh Stuart and Charles L. Carter, upon their bond for the forthcoming and delivery of certain property therein mentioned, which had been levied upon by virtue of the above execution against the said Hugh Stuart.
Two reasons have been assigned by counsel for reversing the judgment on the forthcoming bond. 1. That as the bond was given for the delivery of property levied on by virtue of an execution issuing out of, and returnable to a court for the fourth circuit, no other court could legally [5 U.S. 299, 309] proceed upon the said bond. This is true, if there be no statutable provision to direct and authorize such proceeding. Congress have constitutional authority to establish from time to time such inferior tribunals as they may think proper, and to transfer a cause from one such tribunal to another. In this last particular, there are no words in the constitution to prohibit or restrain the exercise of legislative power.
The present is a case of this kind. It is nothing more than the removal of the suit brought by Stuart against Laird from the court of the fourth circuit to the court of the fifth circuit, which is authorised to proceed upon and carry it into full effect. This is apparent from the ninth section of the act entitled 'an act to amend the judicial system of the United States,' passed the 29th of April 1802. The forthcoming bond is an appendage to the cause, or rather a component part of the proceedings.
2. Another reason for reversal is, that the judges of the supreme court have no right to sit as circuit judges, not being appointed as such, or in other words, that they ought to have distinct commissions for that purpose. To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, afford an irresistible answer, and have indeed fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.