appointed of criminal &c. Notice to be given of time and place. supreme court shall not be sitting, any one of the CHAP. 7. justices thereof, together with the judge of the dis- May be trict within which a special session, as hereafter au- for the trial thorized, shall be holden, may direct special sessions causes at, of the circuit courts to be holden for the trial of criminal causes, at any convenient place within the district, nearer to the place where the offenses may be said to be committed than the place or places appointed by law for the ordinary sessions: that the clerk of such circuit court shall, at least thirty days before the commencement of such special sessions, cause the time and place for holding the same to be notified, for at least three weeks, successively, in one or more of the newspapers published nearest to the place where the session is to be holden: That all process, writs and recognizances, of every kind, whether respecting juries, witnesses, bail, or otherwise, which relate to the cases to be tried at the said special sessions, shall be considered as belonging to such sessions, in the same manner as if they had been issued or taken in reference thereto : That any special session may be adjourned to any time or times previous to the next stated meeting of the circuit court: That all business depending for trial at any special court, shall, at the close thereof, be considered as of course removed to the next stated term of the circuit court.1 11 Stat, at Large, ch. 22, § 3, p. 333. In the case of The United States v. Hamilton (3 Dallas, 17), strong doubts were expressed, 1. Whether, a special circuit court could be appointed to be held on a day subsequent to that fixed by law for the next stated session: and, 2. Whether, admitting the power to appoint such court, indictments found at a stated session could be tried at such special session. And in the case of The United States v. Insurgents (id., 513), it seems to have been justly considered that the authority conferred by the above recited act was to be exercised in subordination to the provision contained in the judicial act of 1789, (vol. 2, p. 67, § 29,) directing "that in cases punishable with death, the trial shall be in the And by the act of July 4, 1840, it is enacted, "That the presiding judge of any circuit court may, at his discretion, appoint special sessions thereof, to be held at the places where the stated sessions thereof are holden; at which special sessions it shall be competent to the said court to entertain jurisdiction of and hear and decide all cases in equity, cases in error, or on appeal, issues of law, motions in arrest of judgment, motions for new trial, and all other motions, and to award executions and other final process, and to do and transact all other business, and direct all other proceedings, in all causes pending in the circuit court, except trying any cause by jury, in the same way and with the same force and effect as the same could or might be done at the stated sessions of such court." With respect to the form in which the power here conferred upon the presiding judge is to be exercised, the act is silent. But considering that it invests the court appointed in pursuance of it with all the powers pertaining to a stated session, except the power of trying causes by jury, and that all suitors are equally entitled to a hearing, and may even be held chargeable with laches for neglecting the opportunity, it would seem to be highly proper, if not indispensable, that full and timely publicity should be given to the appointment, according to the express requirement of the above recited act of March 2, 1793. county where the offense was committed; or where that cannot be done without great inconvenience, twelve petit jurors at least shall be summoned from thence." 'Ch. 43, § 2: 5 Stat. at Large, p. 392. "The acts of May 5, 1862, ch. 71: 12 Stat. at Large, p. 386, respecting the courts for the District of Kentucky, contain very definite and judicious regulations relative to special sessions and adjournments, which, for the sake of simplicity and certainty, it would have been well to extend to all other districts. court of what pur In addition to the facilities afforded to suitors by CHAP 7.. the above mentioned provisions, it has also been en- Court always acted that the district courts as courts of admiralty, open as a and the circuit courts as courts of equity, shall be equity, for deemed always open for the purpose of filing libels, poses. bills, petitions, answers, pleas and other pleadings, for issuing and returning mesne and final process and commissions, and for making and directing all interlocutory motions, orders, rules, and other proceedings whatever, preparatory to the hearing of all causes pending therein upon their merits. And it Powers of judge in shall be competent for any judge of the court, upon vacation. reasonable notice to the parties, in the clerk's office or at chambers, and in vacation as well as in term, to make and direct, and award all such process, commissions and interlocutory orders, rules, and other proceedings, whenever the same are not grantable of course according to the rules and practice of the court." Adjournment, &c.] By the judiciary act of 17892 it Original is provided "That a circuit court may be adjourned for. provision from day to day, by any one of its judges, or if none are present, by the marshal of the district, until a quorum be convened." The circuit courts consisted originally of two judges of the supreme court and the district judge, and two of whom constituted a quorum. But by an act passed in 1793, as we have seen, these courts were made to consist of one judge of the supreme court and the district judge; 1 Act of August 23, 1842, ch. 188, § 5: 5 Stat. at Large, p. 516. See, also, Appendix, Rules 1, 2 and 3, of the Rules regulating the practice of the C. C. in equity, embodying and amplifying the above recited provisions of this act. 'Ch. 24, § 7: 1 Stat. at Large, p. 73. 'Ibid, § 4. PART1. and the judge of the supreme court, in the absence of the district judge, was authorized to hold the court alone. To next stated term by judge or mar shal. In the absence of both judges, marshal may adjourn on written order. By an act passed, May 19, 1794, it is provided, "That a circuit court in any district, when it shall happen that no justice of the supreme court attends within four days after the time appointed by law for the commencement of the session, may be adjourned to the next stated term by the judge of the district, or, in case of his absence also, by the marshal of the district." But by the act of April 29, 1802, as we have seen, a circuit court may be holden by either of the judges; and the necessity of an adjournment on account of the absence of the judge of the supreme court was thereby removed, and the applicability of the act of 1794 was thus limited to the case of the absence of both of the judges. Under this state of the law, the act of July 4, 1840,2 was passed, by which it was enacted. "That whenever it shall so happen that neither of the judges of a circuit court of the United States shall attend at the commencement of a session of the said court, or at the time appointed on any adjournment thereof, to open and adjourn the said court in person, either of the said judges may, by a written order to the marshal, adjourn the court from time to time, as the case may require, to any time or times antecedent to the next stated term of the said court; and all suits, actions, writs, processes, recognizances, and other proceedings pending in such court, or returnable to, or to be acted upon at such court, shall have day and be returnable to, and be heard, tried, and determined, at such adjournment or adjournments, in the same 'Ch. 32: 1 Stat. at Large, p. 369. 'Ch. 43: 5 Stat. at Large, p. 392. manner and with the same effect as if the said court CHAP. 7. had been duly opened and held at the commencement of such session, or other day appointed therefor; and all persons bound or required to appear at said court, either as jurymen, witnesses, parties, or otherwise, shall be bound and required to attend at such adjournment or adjournments accordingly." results of I have deemed it necessary to enumerate these Practical several legislative provisions relative to the power the foregoing proviof adjournment, on account of the importance of sions. the subject, and because there seems to be some ground for doubt concerning the precise result of these various enactments. Unquestionably the provision of the judiciary act authorizing one judge to adjourn from day to day till a quorum shall appear, is wholly superseded by the subsequent acts. It is equally clear, also, that the provision of the act of -1794, authorizing the district judge to adjourn the court to the next stated term on account of the nonattendance of the justice of the supreme court, is also in like manner, superseded. But whether the authority given to the marshal by that act is taken away, is a question which may admit of doubt. It may be that congress intended by the act of 1840, to supersede and thus indirectly to repeal all existing regulations on the subject. But the act contains no repealing clause, and its provisions are not repugnant to those of the act of 1794. The better opinion, therefore, seems to be, that the power given by this act to the marshal, still exists. The authority expressly given to this officer, is that of adjourning the court to the next stated term, in case of the non-attendance of either of the judges within four days after the time appointed by law for the commencement of the court. But, as incidental to this authority, an implied power is also probably, given to |