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The court affirmed the decision of the court below, which had authorized the issuance of the writ prayed for, thus establishing this broad jurisdiction of the Circuit Court of the District of Columbia.
Having now seen how the courts of the District were established and their jurisdiction defined and determined, we will proceed to the pleasing task of rehearsing the history of the good and great men who presided over those tribunals. We shall find that in this singular community the judiciary has ever maintained a high character for the purity and integrity of its members.
The first chief justice appointed for the Circuit Court of the District of Columbia was Thomas Johnson, March 3, 1801. Thomas Johnson was a particular friend of President Washington, was a man of distinguished ability, and had held the position of commissioner to select the territory for the Federal District. He was a delegate to the Continental Congress, was Governor of Maryland, judge of the United
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States District Court for the State of Maryland, and a Justice of the Supreme Court of the United States from 1791 to 1793, when he re- signed. He declined the appointment of chief justice of the Circuit Court of the District of Columbia, and the position was then bestowed on William Kilty, who was appointed March 23, 1801.
William Kilty was born in London, England, in 1757, and was educated at the College of St. Omer's, in French Flanders. At the beginning of the Revolutionary War, he was residing on his father's plantation in Calvert County, Maryland. He joined the American army in 1776, and served as a surgeon until 1783, when he returned to Annapolis and studied law. He took a distinguished position at the bar, and was selected by the legislature of the State to prepare the work now so well known as "Kilty's Laws of Maryland." The position of chief justice of the Circuit Court of the District of Colum- bia he filled until January 20, 1806, when he was appointed chancellor of Maryland, serving in this position until his death, October 10, 1821. While he was chancellor of the State of Maryland, he prepared, under the orders of the legislature of the State, a report of the English stat- utes applicable to Maryland. The profound erudition and legal acumen displayed in this work gave it great authority throughout the State, and it became the foundation of the statute law of Maryland. Judge Kilty was a man of singular attractiveness of character and of great culture and erudition. His relations with his brethren of the bench and bar were of the most agreeable description. At his death, the bench and bar of the State of Maryland united in paying appropriate tribute to his memory. He is buried in the old cemetery at Annapolis, under a monument erected by his son, the late Rear Admiral Kilty, of the United States Navy.
The next chief justice of this court was William Cranch, who had been appointed an assistant justice in the same court March 3, 1801. He received his appointment as chief justice February 4, 1806. He was born in Weymouth, Massachusetts, July 17, 1769, graduated from Harvard College in 1787, commeneed the study of law, and was admitted to the bar in 1790. After a few years spent in practice in Massachusetts, he removed to the District of Columbia in 1794, and here passed the remainder of his life. In 1800 he was appointed one of the commissioners of public buildings, and on February 27, 1801, was nominated assistant justice in the Cirenit Court for the District of Columbia by President Adams. In 1805, upon the resig- nation of Chief Justice Kilty, he was appointed chief justice by President Jefferson, and he remained in this position until September
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1, 1855, when he died, having been for fifty-five years a judge of the United States Circuit Court and for fifty years chief justice. His biographer says of him that in all this period, notwithstanding the facility of appeal to the United States Supreme Court, appeal from the Cirenit Conrt being for smaller amounts than from the Circuit and District Courts in the States, only two of his own decisions were over- ruled and sent back for amendment by the highest court in the country. During the time when he filled the office of assistant justice and chief justice of the Circuit Court of the District of Columbia, he also filled the office of reporter to the Supreme Court of the United States. Nine volumes of his reports were published, and are well known to the lawyers of the United States. In this office of reporter he was preceded by Mr. A. J. Dallas, and he was succeeded by Henry Wheaton and Richard Peters, all of whom were distinguished reporters. He also, during his ocenpaney of the office of assistant judge and chief justice, made accurate reports of the cases decided in the Circuit Court of the District of Columbia from 1801 to 1841, which were published in six volumes, and are known as "Cranch's Circuit Court Reports." In conformity with an act of Congress he prepared a code of laws for the District of Columbia, which, like many other codes prepared under the direction of that body, were afterward neglected.
Judge Cranch was remarkable in every particular in which a judge can be distinguished. He was a man of great learning, and was always a careful student of the cases entrusted to his charge. He was, from the very position he occupied, obliged to review the decisions of the executive depart; uts bearing pon questions involving the rights of citizens; and in all the conflicts of the courts he maintained the character of a pure and upright judge. Ile was eminently a relig- ious man, was a Unitarian . in faith, and an example of Christian charity in all the circumstances of life. His habits of life were singularly simple, his character childlike and confiding. During his long career he possessed the respect of all who knew his abilities and services, and of all who were acquainted with him as a man.
The next appointment of chief justice of this Cirenit Court was that of George W. Hopkins, October 5, 1855. Mr. Ilopkins was a Virginian by birth, had been a Representative in Congress and charge d'affaires of the United States to Portugal, and having declined the office of chief justice to this court, served in the Thirty-fifth Congress.
James Dunlop was then appointed to this position, and was the last of the chief justices of this court. He was born March 28, 1793.
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His father was a Scotchman by birth, and his mother was a daughter of Robert Peter, one of the original proprietors of the city of Wash- ington. He was educated at a private school in Georgetown and at the College of New Jersey, at Princeton, graduating therefrom in 1811, delivering the valedictory of his class. Afterward, he entered upon the study of law in the office of Francis Scott Key, and became a partner of that gentleman soon after being admitted to the bar. This partnership continned until Mr. Key removed to Baltimore. He was for some time assistant district attorney for the United States for the District of Columbia, and was actively engaged in the prosecution of eases incident to that office. He was the recorder of Georgetown during the construction of the Chesapeake and Ohio Canal in 1832-37. In 1838 he was appointed a judge of the newly organized Criminal Court of the District of Columbia, being the first judge appointed to preside in that court. He continued to hold that position until 1845, when, upon the death of Judge Thruston, he was appointed to succeed him as one of the assistant justices of the Circuit Court of the District of Columbia. He held this position until 1857, when he was made chief justice, and continued in that position until the abolition of the court in 1863. Judge Dunlop survived his judgeship several years, dying May 6, 1872, at his farm in Montgomery County, Mary- land. He was a courtly gentleman, dignified and elegant, and always maintained the amenities of the bench. During his entire career he was respected by the members of the bar and by the general public.
Following are sketches of the associate justices of the Circuit Court.
James Marshall was one of the earliest justices of the Circuit Court of the District of Columbia, having been appointed March 3, 1801. Very little is known of this gentleman,except that he held the office but a few years.
Nicholas Fitzhugh was a native of Virginia, and became a resi- dent of the District of Columbia soon after the removal of the seat of government thereto. He was appointed a justice of the Circuit Court, he also holding the office only for a few years.
Allen R. Duckett was born in Maryland, and became a resident of the District of Columbia soon after the removal of the seat of gov- ernment. He was appointed a justice of the Circuit Court in 1806, and like the two gentlemen next preceding in this narrative, held the office for a short time only.
Buckner Thruston was appointed a justice of the Circuit Court of the District of Columbia December 14, 1809. He was a native of
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Virginia, and in early life migrated to Kentucky. Being a man of superior ability, he was appointed a Federal judge of the Terri- tory of Orleans in 1805, and in the same year was elected one of the United States Senators from Kentucky for six years. Being selected in 1809 as one of the justices of the Circuit Court of the District of Columbia, he held that office until his death, August 30, 1845, a period of thirty-six years. He was a man of remarkable ability, and during the long years of his occupancy of this position, he was most highly respected, not only as a justice, but also as a man of great learning, and remarkable for his strict adherence to what he believed to be right. While he was a man of great eccentricity of character, he never sought to pander in any way to personal friendship, but always pursued the strict path of duty.
James L. Morsell was born in Calvert County, Maryland, in Janu- ary, 1775. Ile received a good education, studied law, and came to the bar in Georgetown carly in the present century. He served in the War of 1812, and in 1816 was appointed one of the judges of the Cir- cuit Court of the District of Columbia by President Madison, and continued to hold that office until 1863, when the Circuit Court was by an act of Congress abolished. He died in 1870, having attained the age of ninety-five years. For forty-seven years he held the position of a justice of the Cirenit Court, and his term of that office was only terminated finally by the act of Congress that abolished the court. During all that time there was no breath upon his purity, no question about his integrity and honor as a man. He lived a simple, unosten- tatious life, and was beloved and esteemed by all who knew him. At one time in his career, desiring to. retire, he determined to resign his office, and so signified to the, members of the bar; but such was the expression of regret from all who knew him that he changed his determination and continued to hold his position to the last.
William M. Merrick was appointed one of the justices of the Circuit Court of the District of Columbia December 14, 1855, and served until this court was superseded by the Supreme Court of the District, established by an act of Congress in 1863. Mr. Merrick was born in Charles County, Maryland, in 1818, and received his education in that State. He studied law and was admitted to the bar in Baltimore in 1839. Hle settled in Frederick in 1844, and was deputy attorney-general for Frederick County in 1845. In 1854 he removed to Washington, and was appointed one of the justices of the Circuit Court for the District. After the abolishment of this court and the estab- lishment of the Supreme Court, Judge Merrick retired to Maryland
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and resumed the practice of law. His biographer states of him that from 1866 to 1867 he was senior professor of law in the Columbian University of the District of Columbia. He was a member of the State Constitutional Convention in 1867, was elected to the State leg- islature in 1870, and was elected a member of the Forty-second Con- gress. In 1885 he was appointed by President Cleveland an associate justice of the Supreme Court of the District of Columbia. Through all his judicial life Judge Merrick was recognized as a learned, care- ful, and most excellent judge. He was a man of great ability, and a patient, careful student of the cases coming before him. His sole aim in this responsible position was to see that justice was done between man and man.
The personnel of the court continued unchanged from the date of the appointment of Judge Merrick until it ceased to exist in the manner hereafter described. During this period those great events occurred which more than once threatened the very existence of the country and its institutions. It is useless to relate how in the Dis- trict of Columbia the vicissitudes of the War and the remarkable events that followed in its tracks were more seriously felt than in any other portion the Union. All forms of business felt the baleful effects of the condition of things in the country, and the courts were never more sorely tried in their efforts to preserve order and maintain the supremacy of the law. It is not too much to say that the Circuit Court of the District of Columbia was distinguished in these disas- trous times, not only for the good work it did in keeping free from all taint the dispensation of justice and the enforcement of law, but in maintaining as it did at all times and under all circumstances the respect of the entire community in which it exercised its power.
In 1863 Congress determined to make a radical change in the judicial system that for so many years had existed in the District of Columbia, and to that end a bill was reported from the Senate Judiciary Committee, and was with little delay considered in that body. It will be interesting as part of the history of the courts of the District to make something more than a mere allusion to the debate upon the bill, and with that view a brief account of that debate is here given.
The bill by means of which the change in the courts was to be effected was introduced into the Senate in February, 1863, was known as Senate Bill No. 359, and was entitled " An Act to Reorganize the Courts in the District of Columbia, and for Other Purposes." The debate upon this bill was exceedingly interesting. The motives of
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those favoring the measure were called in question, and the bill was opposed on constitutional grounds.
Mr. Saulsbury, of Delaware, opposed the bill upon the ground that no petition for the substitution of the new court for the old one had been presented by the people of the District, and because he had been informed that the bill met with opposition from every respectable member of the bar of the District. He thought that in the times of change through which the country was then passing, something should be left unchanged, and if anything should be left unchanged, it should be the judiciary system of the country. He could see nothing to be gained from the change, for the new court was to have the same powers as the old, except that the Orphans' Court was to be abolished. The only object he could see in the attempt to pass the bill was the expulsion of the judges then on the bench.
Mr. Ira Harris, of New York, who had charge of the bill, dis- claimed the imputation of being influenced by such motives as had been suggested by Mr. Saulsbury, not only for himself but also for the Judiciary Committee. He said that the judicial system of the District of Columbia was established in 1801, and ever since that time Congress had been patching it until it had made it exceedingly complicated and incongruous; that whenever the change should be made the incumbents of the judgeships would be displaced, and he thought the time most opportune for making the change, as there was then one vacancy, the Criminal Court being without a judge, and one of the other judges was practically superannuated. Besides, if there was a judge of the Circuit Court worthy of being retained, let him be retained. He also said that so far as his knowledge extended, the bar of the District was in favor of the change, and certainly one of the judges to be legislated out of office had, at a public meeting held a year or two before, made a speech advocating the very change then in process of accomplishment. This was all on February 18. On the 20th Mr. Harris had learned that the bar of the District was inclined to acquiesce in the proposed change, provided the Orphans' Court was left undisturbed, and therefore made an amendment pro- viding for this object, which, upon being submitted to the Senate, was rejected.
Mr. Powell, of Kentucky, could see no motive for the proposed change except to get rid of the judges and to substitute partisan judges in their place. He therefore proposed to amend the bill by striking out the first section of the bill, after the enacting clause, and inserting: "That an additional judge be added to the Circuit Court
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of the District of Columbia," which he thought would test the sin- cerity of those proposing to establish a Supreme Court.
Mr. Davis, of Kentucky, ventured to assert that if the ineumbents of the court proposed to be abolished were Republicans, and a Demo- crat were in the Presidential chair, the majority of the Republicans in the Senate would never pass the bill to remove, by a mode different from impeachment, but more certain, the incumbents of the offices, and thus open a way for a Democratic President to fill their places. Mr. Davis objected to the removal of these judges on constitutional grounds, and referred to Webster, Calhoun, and Clay as supporting the . position that where an office is filled by a President by and with the consent of the Senate, the President has no power of re- moval except with the concurrence of the Senate.
Mr. Sumner quoted Chief Justice Marshall in favor of the position that the Circuit Court of the District of Columbia was a legislative court in contradistinction to a constitutional court, that the jurisdiction with which that court was invested was not a part of that judicial power which is defined in the third article of the Constitution, but it was conferred by Congress in the exercise of those general powers which that body possesses over Territorial courts; and that therefore, so far as au- thority was concerned, Congress had authority to abolish the Circuit Court, and to establish the Supreme Court, as it proposed to do.
Mr. Davis presented a petition against the proposed change, signed by forty-nine of the leading members of the bar of the District of Columbia.
Mr. Harris maintained the same position as that of Mr. Sumner, that the Congress had ample authority to abolish the Circuit Court; that court was not made immortal, as Mr. Davis, of Kentucky, sought to establish.
The bill became a law, by the signature of the President, March 3, 1863. By force of this act the old Circuit Court was abolished, and its judges ceased to hold the offices occupied by them so long and with so much honor. The present Supreme Court of the District of Columbia was also established by this act, and it is deemed best for the proper understanding of its powers and jurisdiction to quote here a few of its sections, as follows:
"There shall be established in the District of Columbia a court to be called the Supreme Court of the District of Columbia, which shall have general jurisdiction in law and equity. It shall consist of four justices, one of whom shall be denominated as chief justice. These jus- tices shall be appointed by the President by and with the advice and consent of the Senate, and shall hold their offices during good behav-
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ior. Each justice, before entering upon the duties of his office, shall take the oath prescribed to be taken by judges of the courts of the United States. Any three of said justices may hold a general term, and any one of them may hold a special term or circuit court. The court shall have power to appoint a clerk, and shall possess the same powers and exercise the same jurisdiction as are possessed and exer- cised by the Circuit Court of the District of Columbia. Any one of said justices may hold a District Court of the United States for the District of Columbia in the same manner and with the same powers and jurisdiction possessed and exercised by other District Courts of the United States. Any one of the justices may hold a criminal court for the trial of all criminals and offenses arising within said District, and such court shall possess the same powers and exer- cise the same jurisdiction now possessed and exercised by the Criminal Court of the District of Columbia."
Special provisions are made for the regulation of the general and special terms of the court, and for the hearing and trial of causes therein; and an appeal is given from the decision of the special term, where the judgments and orders made at the special terms are to be reviewed and affirmed, revised or modified, as shall be just. The act also confers upon the court power to make rules regulating the time and manner of taking appeals, and authorizes it to establish such other rules as may be deemed necessary for the regulation of the practice in the several courts of the District. The right to have all final judgments, orders, or decrees of the court reexamined and revised or affirmed in the Supreme Court of the United States is reserved, under certain regulations and conditions, in the same manner as is provided concerning the final judgments, etc., of the Circuit Court of the District of Columbia. By subsequent enactments, this organic act is modified and amended, and the jurisdiction of the court is somewhat enlarged; but for the purposes of this work, the synopsis given seems sufficient.
It will be seen that by this legislation a most radical change was made in the character of the courts, and it will appear presently that an equally radical change was made in the personnel of the court.
The President did not retain either of the judges of the old Circuit Court, but appointed David K. Cartter, of Ohio, chief justice, and Abraham B. Olin of New York, Andrew Wylie of the District of Columbia, and George P. Fisher of Delaware, associate justices of the new court.
David K. Cartter was the first chief justice appointed under the act of Congress establishing the Supreme Court of the District of
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Columbia. He was born in Ohio, and from 1849 to 1853 was a Rep- resentative in Congress from the eighteenth district of that State. IIe was appointed by President Lincoln minister to Bolivia in 1861, and in 1863 was appointed chief justice of the Supreme Court of the District of Columbia. This office he held until his death, in 1887, a period of twenty-four years.
Chief Justice Cartter was a man of the most remarkable intellee- tnal capacity. His memory was phenomenal. Ilis aim in the trial of cases that came before him was to accomplish what he called substan- tial justice, and he u-ed his wonderful ability always with the view of bringing about a complete settlement of the causes that he tried. Personally, he was a man of singular attractiveness: Ilis wit and his peculiar methods in the treatment of the causes that came before him will long be remembered by the bench and bar of the District of Columbia, and while it is fairly questionable whether his place in the community was exactly in the judicial line, yet there can be no ques- tion that his abilities were such as to fit him for any place he might be called to occupy. He was singularly individual in his character, and not at all times apparently amiable, but even when at times he seemed to be rude and unfriendly, he was eminently kind-hearted.
The successor of Judge Cartter, and the present chief justice of the Supreme Court of the District of Columbia, is Edward F. Bingham, who was appointed by President Cleveland, April 22, 1887. Judge Bingham was one of the State judges of Ohio, and had been for fourteen years when he was selected from that bench to fill the position he now holds. He has been for so short a time chief justice of this court that little can be said except that he has shown himself to be a strictly correct and upright judge. His decisions are mani- festly fair, and show a great deal of ability and learning, and there is every reason to apprehend that his career on the bench, will be honorable to himself as well as eminently useful to his fellow-citizens.
Abraham B. Olin was born in Shaftesbury, Bennington County, Vermont, in 1812. Ile graduated from Williams College in 1835, and soon afterward was admitted to the bar and emigrated to the State of New York, spending the rest of his professional life in Troy, in that State. He was for several years recorder of the city of Troy, and was elected to the Ilouse of Representatives of the Thirty-fifth, Thirty-sixth, and Thirty-seventh Congresses from the thirteenth district. Upon the organization of the Supreme Court of the District of Columbia, in 1863, he was appointed one of the first justices of that court, and as an evidence of his fitness for the position the degree of Doctor of
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