cature and judge of the Court of Admiralty of the several and respective states, or any two or more of them; provided that nothing herein contained shall extend to prosecutions already commenced, which shall be determined in the same manner as if this ordinance had never been made. Done &c.

Article IX of the Articles of Confederation contains a clause stating that "the United States in Congress assembled, shall have the sole and exclusive right and power of appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures." This clause gives us the first intimation that the early legislators had any idea of a Federal judiciary. The idea was but vague and did not embrace such a judicial structure as we have to-day. In fact the elaborate system of courts with which we are familiar has been of gradual growth much as the common law itself has been.

It was not until Virginia ceded to the Government of the Confederation that vast tract of land south of the Great Lakes known at the time (January 2, 1781) as the Northwest Territory that we find any concrete reference to a system of Federal courts. Virginia surrendered her title to this territory as a practical step in promoting a Federal union of the liberated commonwealths. The cession was made on the understanding that the Northwest Territory should be divided into distinct States with republican institutions and as such to be admitted into the Federal union. Soon after (March 1, 1781) Maryland gave her tardy assent to the Articles of Confederation and the United States of America, a weak and imperfect union though it was, became a working reality.

After accepting the cession of the Northwest Territory it became incumbent on the Congress of the Confederation to provide measures for its government and protection. Special legislation was necessary and a resolution for its government was passed on the twenty-third of April, 1784. This act was speedily followed by the passage of an ordinance providing that for the purposes of temporary government,

the territory be regarded as one district, and a governor and secretary appointed. It was the duty of the latter official "to keep and preserve the acts and laws passed by the legislature, and the public records of the district, and the proceedings of the governor in his executive department, and transmit authentic copies of such acts and proceedings every six months to the Secretary of Congress." Then follows the first direct expression of the vague ideas of a Federal judiciary entertained by the statesmen of the time: "There shall also be appointed a court, to consist of three judges, any two of whom to form a court, who shall have a common-law jurisdiction, and reside in the district, and have each therein. a freehold estate in five hundred acres of land, while in the exercise of their offices; and their commissions shall remain in force during good behavior." We see in this passage a more or less definite idea of a Federal Supreme Court, which, it may readily be believed, formed the genesis of the present august tribunal in Washington, because a little later on in the ordinance we find these interesting paragraphs: "Previous to the organization of the General Assembly, the Governor shall appoint such magistrates and other civil officers, in each county or township, as he shall find necessary for the preservation of the peace and good order in the same. After the General Assembly shall be organized, the powers and duties of magistrates and other civil officers shall be regulated and defined by the said Assembly; but all magistrates and other civil officers, not herein otherwise directed, shall, during the continuance of this temporary government, be appointed by the governor.

"For the prevention of crimes and injuries, the laws to be adopted or made shall have force in all parts of the district, and for the execution of process, criminal and civil, the governor shall make proper divisions thereof; and he shall proceed from time to time, as circumstances may require, to lay out the parts of the district in which the Indian titles shall have been extinguished, into counties and townships, subject, however, to such alterations as may thereafter be made by the legislature."

Charles Pinckney of South Carolina had advocated similar provisions for a general judiciary during the travail which resulted in the unsatisfactory Articles of Confederation but the proposal was not adopted. Congress did nevertheless reserve to itself certain judicial functions and the following passage from Bancroft' clearly demonstrates that Congress felt the necessity of a Federal judiciary though somewhat in the dark as to how to create it: "How beneficent was the authority of the union, appeared at this time from a shining example. To quell the wild strife which had grown out of the claim of Connecticut to lands within the charter boundary of Pennsylvania, five commissioners appointed by Congress opened their court at Trenton. "The case was well argued by learned counsel on both sides,' and, after a session of more than six weeks, the court pronounced their unanimous opinion, that the jurisdiction and preemption of the lands in controversy did of right belong to the State of Pennsylvania. The judgment was approved by Congress; and the parties in the litigation gave the example of submission to this first settlement of a controversy between States by the decree of a court established by the United States."

The territorial courts thus established proved so satisfactory for the protection of the Northwest Territory which has since been cut up and formed into States that upon the adoption of the Constitution they were continued by means of this act passed in 1789:

Chapter 8 (VIII) An Act to provide for the government of the territory northwest of the River Ohio.

Whereas, in order that the ordinance of the United States in Congress assembled for the government of the territory northwest of the river Ohio, may continue to have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present constitution of the United States.

Section 1. Be it enacted by the senate and house of representatives of the United States of America in Congress assembled, That in all cases in which by the said ordinance any information is to be given or communication made by the Governor of the said territory to the United States in Bancroft, Hist. of U. S., Vol. 6, Chap. II.

1

Congress assembled or to any of their officers it shall be the duty of the said governor to give such information and to make such communication to the Preisdent of the United States; and the President shall nominate and by and with the advice and consent of the senate shall appoint all officers which by the said ordinance were to have been appointed by the United States in Congress assembled; and all officers so appointed shall be commissioned by him; and in all cases where the United States in Congress assembled might by the said ordinance revoke any communication or remove from any office, the President is hereby declared to have the same powers of revocation and removal.

Section 2. And be it further enacted, That in case of the death, removal or necessary absence of the governor of the said territory the secretary thereof shall be, and he is hereby authorized and required to execute all the powers and perform all the duties of the governor during the vacancy occasioned by the removal, resignation or necessary absence of the said governor. (Approved August 7, 1789).

When the State of Ohio was formed in 1803 out of a portion of the Northwest Territory, the territorial courts went out of existence within the borders of the new commonwealth by the passage of this enabling act:

Chapter 320. An Act to provide for the due execution of the laws of the United States within the State of Ohio.

Whereas the people of the eastern division of the territory northwest of the river Ohio did, on the twenty-ninth day of November, one thousand eight hundred and two, form for themselves a constitution and a state government, and did give to the said State the name of the "State of Ohio," in pursuance of act of Congress entitled "An act to enable the people of the eastern division of the territory northwest of the river Ohio to form a constitution and state government, and for the admission of such State into the Union on an equal footing with the original States, and for other purposes, whereby the said State has become one of the United States of America: in order therefore to provide for the due execution of the laws of the United States within the said State of Ohio.

Section 1. Be it enacted by the senate and house of representatives of the United States in Congress assembled, That all the laws of the United States, which are not locally inapplicable, shall have the same force and effect within the said State of Ohio as elsewhere within the United States. Section 2. Be it further enacted, That the said State shall be one district, and be called the Ohio District; and a district court shall be held therein, to consist of one judge who shall reside in the said district and be called a district judge. He shall hold at the seat of government of said State three sessions annually the first to commence on the first Monday in June next and the two other sessions, progressively, on the like Monday of

every fourth calendar month afterwards; and he shall in all things have and exercise the same jurisdiction and powers which are by law given to the judge of the Kentucky district: he shall appoint a clerk for the said district who shall reside and keep the records of the court at the place of holding the same, and shall receive for the services performed by him, the same fees to which the clerk of the Kentucky district is entitled for similar service.

Section 3. Be it further enacted, That there shall be allowed to the judge of the said district court, the annual compensation of one thousand dollars, to commence from the date of his appointment, to be paid quarter yearly at the treasury of the United States.

Section 4. Be it further enacted, That there shall be appointed in the said district, a person learned in the law, to act as attorney for the United States, who shall, in addition to his stated fees, be paid by the United States, two hundred dollars annually, as a full compensation for extra services.

Section 5. And be it further enacted, That a marshal shall be appointed for the said district, who shall perform the same duties, be subject to the same regulations and penalties, and be entitled to the same fees, as are prescribed to marshals in other districts; and shall moreover, be entitled to the sum of two hundred dollars annually as a compensation for all extra services. (Approved, February 19, 1803.)

The Constitution provided for the vesting of judicial power in "one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." This brief sentence established the nucleus for the present structure but it left to future legislation its practical organization. This wise forbearance on the part of the framers of the Constitution has been of great benefit. They did not attempt to fasten on an immature country a rigid system which in a few years might be found wholly inadequate to meet the changing conditions of a natural growth and development. In European countries much misery has been the result of the rigidity of an ultra conservatism whether in the judicial or other departments. We frequently find that systems of executive and judicial procedure are in full operation long after a nation has outgrown them. Such a situation widens the unnatural gulf between the classes and the masses, requiring inevitably to bridge it, an out-break proportionate in its excesses to the grievances to be remedied. It has taken France more than