From Gabriel Duvall
Washington, March 24. 1812.
Permit me to request your attention to an act of Congress which was passed on Friday last & which of course will be submitted for your approbation. It relates to the District Courts of the United States.
By the Act of the 2d. of March 1809,1 all the duties of the District Judge, in case of his disability to perform them, are imposed on the Circuit Judge. Of this, altho’ in my opinion, an improper & unwarrantable regulation, I have no right to complain, because it existed at the time of my appointment. These duties, under the existing law, are to be performed by the Circuit Judge sitting in the Circuit Court. By the law now proposed to be passed they are to be performed by the Circuit Judge sitting in the District Court.2 Why this change? The duties unquestionably will be performed as well under the former as under the proposed Act. The law proposed will impose on me the unnecessary, expensive & irksome duty of travelling six times instead of twice, in the course of the year, to the State of Delaware; & sometimes in the most sickly season of the year; comprizing a distance of at least nine hundred miles.
I will not at present examine the question of the constitutionality of an Act which compels a Justice of the Supreme Court to sit in the most inferior Court, under the Government, from whose decisions there is an appeal to himself sitting in the Circuit Court. It certainly, in effect, destroys the distinctive feature of the Judiciary system as contemplated by the Constitution.
I never heard of the Bill until after it had passed, or I would have endeavoured to arrest its progress. These few lines, I am persuaded, will be read with the same candour in which they have been hastily written; & I am led to hope that your sanction will be withheld unless you are convinced of the utility of the measure proposed. I have the honour to be, with great respect & esteem, Your obedt. sert.
1. “An Act further to amend the Judicial System of the United States” (U.S. Statutes at Large description begins The Public Statutes at Large of the United States of America … (17 vols.; Boston, 1848–73). description ends , 2:534–35).
2. In introducing the subject in the House of Representatives on 24 Feb. 1812, Thomas Gold of New York had stated that it was improper that Supreme Court justices who presided in circuit courts should later revise their own judgments in cases of appeal before the Supreme Court. He also believed that business in circuit courts prevented Supreme Court justices from devoting sufficient time to their duties on the higher court, and he suggested instead that circuit courts be held by “two or more district judges from adjoining districts.” Gold’s real concern, though, was the inability of district courts to function in the event of the disability of a district judge, and he was later to cite the instance of a New York district with a backlog of seven hundred cases resulting from this cause. A committee was formed to consider the matter, and on 4 Mar. Gold reported a bill providing for the removal of causes before district courts “in case of the disability of the Judges thereof.” Supporters of the measure in debate on 6 Mar. declared that “the object of the bill was … to make it the duty of the judge of the Supreme Court to exercise the powers in such case given by law, on satisfactory evidence of the absence or inability of the district judge,” in effect repealing the provisions of the act of 2 Mar. 1809 requiring the district attorney or U.S. marshal “to authorize the exercise of the power therein given to a justice of the Supreme Court of the United States.” The bill was subsequently debated and passed by both houses of Congress by 23 Mar., but JM vetoed it on 3 Apr. 1812 (Annals of Congress description begins Debates and Proceedings in the Congress of the United States … (42 vols.; Washington, 1834–56). description ends , 12th Cong., 1st sess., 173, 176, 1086, 1146, 1158–59, 1197, 1216, 1220, 1231, 1251–52, 1275–78).