Commentaries on American Law (1826-30)
Chancellor James Kent
Of the Judiciary Department
As the judiciary power is entrusted with the administration of justice, it interferes more visibly and uniformly than any other part of government, with all the interesting concerns of social life. Personal security, and private property, rest entirely upon the wisdom, the stability, and the integrity of the court of justice. In the survey which is to be taken of the judiciary establishment of the United States, we will consider, (1.) The judges in relation to their appointment, the tenure of their office, and their support and responsibility. (2.) The structure, powers, and officers of the several courts.
The advantages of the mode of appointment of public officers by the president and senate, have been already considered. This mode is peculiarly fit and proper in respect to the judiciary department. The just and vigorous investigation and punishment of every species of fraud and violence, and the exercise of the power of compelling every man to the punctual performance of his contracts, are grave duties, not of the most popular character, though the faithful discharge of them will certainly command the calm approbation of the judicious observer. The fittest men would probably have too much reservedness of manners, and severity of morals, to secure an election resting on universal suffrage. Nor can the mode of appointment by a large deliberative assembly, be entitled to unqualified approbation. There are too many occasions, and too much temptation for intrigue, party prejudice, and local interests, to permit such a body of men to act, in respect to such appointments, with a sufficiently single and steady regard for the general welfare. In ancient Rome, the praetor was chosen annually by the people, but it was in the comitia by centuries, and the choice was confined to persons belonging to the patrician order, until the close of the fourth century of the city, when the office was rendered accessible to the plebians; and when they became licentious, says Montesquieu,1 the office became corrupt. The popular elections did very well, as he observes, so long as the people were free, and magnanimous, and virtuous, and the republic was without corruption. Butt all plans of government which suppose the people will always act with wisdom and integrity, are plainly Utopian, and contrary to uniform experience. Government must he framed for man as he is, and riot for man as he would be if he were free from vice. Without referring to those cases in our own country, where judges have been annually elected by a popular assembly, we may take the less invidious case of Sweden. During the diets which preceded the revolution in 1772, the states of the kingdom sometimes appointed commissioners to act as judges. The strongest party, says Catteau2 prevailed in the trials that carne before them, and persons condemned by one tribunal were acquitted by another.
By the constitution of the United States3 “the judges both of the supreme and inferior courts are to hold their offices during good behavior; and they are, at stated times to receive for their services a compensation which shall not be diminished during their continuance in office.” The tenure of the office, by rendering the judges independent, both of the government and people, is admirably fitted to produce the free exercise of judgment in the discharge of their trust. The principle, which has been the subject of so much deserved eulogy, was derived from the English constitution. The English judges anciently held their seats at the pleasure of the king, and so does the lord chancellor to this day. It is easy to perceive what a dangerous influence this must have given to the king in the administration of justice, in cases where the claims or pretensions of the crown were brought to bear upon the rights of a private individual. But, in the time of Lord Coke,4 the barons of the exchequer were created during good behavior, and so ran the commissions of the common law judges at the restoration of Charles II.5 It was still, however, at the pleasure of the crown, to prescribe the form of the commission, until the statute of 12 and 13 Wm. III. c. 2. established by law the commissions of the judges to be quamdiu se bene gesserint. The excellence of this provision has recommended the adoption of it by other nations of Europe. It was incorporated into one of the modern reforms of the constitution of Sweden6 and it was an article in the French constitution of 1791, and in the French constitution of 1795, and it is inserted in the constitutional charter of Louis XVIII. The same stable tenure of the judges is contained in a provision in the Dutch constitution of 1814, and it is a principle which likewise prevails in most of our state constitutions, and, in some of them, under modifications more or less extensive and injurious.
In monarchical governments, the independence of the judiciary is essential to guard the rights of the subject from the injustice of the crown; but in republics it is equally salutary, in protecting the constitution and laws from the encroachments and the tyranny of faction. Laws, however wholesome or necessary, are frequently the object of temporary aversion, and sometimes of popular resistance. It is requisite that the courts of justice should be able, at all times, to present a determined countenance against all licentious acts; and to give them the firmness to do it, the judges ought to be confident of the security of their stations. Nor is an independent judiciary less useful as a check upon the legislative power, which is sometimes disposed, from the force of passion, or the temptations of interest, to make a sacrifice of constitutional rights; and it is a wise and necessary principle of our government, as will be shown hereafter in the course of these lectures, that legislative acts are subject to the severe scrutiny and impartial interpretation of the courts of justice, who are bound to regard the constitution as the paramount law, and the highest evidence of the will of the people.
The provision for the permanent support of the judges is well calculated, in addition to the tenure of their office, to give them the requisite independence, It tends also to secure a succession of learned men on the bench, who, in consequence of a certain undiminished support, are enabled and induced to quit the lucrative pursuits of private business for the duties of that important station, The constitution of the United States, on this subject, was an improvement upon all previously existing constitutions, in this or in any other country, It was provided in the constitution of Massachusetts, that permanent. and honorable salaries should be established by law for the judges; but this was not sufficiently precise and definite, and the more certain provision in the constitution of the United States has been wisely followed in the subsequent constitutions of most of the individual states. The constitution of this state, as amended in 1821, is an exception to this remark, and it left the judicial department in a more dependent condition, and under greater disabilities, than it found it, and greater than in any of those states in the union, or in any of those governments in Europe, whose constitutions have been recently reformed.
But though the constitution of the United States has rendered the courts of justice independent of undue influence from the other departments, it has made them amenable for any corrupt violation of their trust. The house of representatives, as we have already seen, is invested with the power of impeachment, and the judges may, by that process, be held to answer before the senate, aid if convicted, they may be removed from office.
The federal judiciary being thus established on principles which are essential to maintain that department in a proper state of independence, and to secure the pure and vigorous administration of the law, the constitution proceeded to designate, with comprehensive precision, the objects of its jurisdiction. The judicial power extends7 to all cases in law and equity arising under the constitution, the laws and treaties of the union; to all cases affecting ambassadors, other public ministers, and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more states; to controversies between a state, when plaintiff, and citizens of another state, or foreign citizens or subjects; to controversies between citizens of different states, and between citizens of the same state, claiming lands under grants of different states; and between a state, or citizens thereof, and foreign states; and between citizens and foreigners. The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered to be requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty That the interpretation of treaties, and the cases of foreign ministers and maritime matters, are properly confided to the federal courts, appears from the close connection those cases have with the peace of the union, the confusion that different proceedings in the separate states would tend to produce, and the responsibility which the United States are under to foreign nations for the conduct of all its members. The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of the domestic tranquillity. The want of the federal judiciary to embrace these important subjects was once severely felt in the German confederacy, and disorder, license, and desolation reigned in that unhappy country, until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquillity in the Germanic body.8
The judicial power, as it originally stood, extended to suits prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state; but the states were not willing to submit to be arraigned as defendants before the federal courts, at the instance of private persons, be the cause of action what it may. The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia9 decided in 1793, in which it was adjudged, that a state was sueable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared so great, that congress, in 1794, proposed to the states an amendment to that part of the constitution, and it was subsequently amended in this particular under the provision in the fifth article. It was declared by the amendment10 that the judicial power of the United States should not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.
With these general remarks on the constitutional principles of the judiciary department, and the objects of its authority, we proceed to a particular examination of the several courts of the United States, as ordained by law.
(1.) The supreme Court was instituted by the constitution, but it received its present organization from congress, for the constitution had only declared, in general terms, that there should be a Supreme Court with certain original and appellate powers. It consists of a chief justice, and six associate justices, any four of whom make a quorum; and it holds one term annually at the seat of government, commencing on the first Monday in February.11 But though four of the judges are requisite for business in general, yet tiny one or more of them may make all necessary orders in a suit, preparatory to the hearing or trial, and the judge of the fourth circuit attends at the city of Washington on the first Monday of August annually, for the same purpose.
The Supreme Court has exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except in suits by a state against one or more of its citizens, or against citizens of other states, or aliens, in which cases it has original, but not exclusive jurisdiction. It has also, exclusively, all such jurisdiction of suits, or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise, consistently with the law of nations; and original, but not exclusive jurisdiction, of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party.12 The Supreme Court was also clothed by the constitution13 with appellate jurisdiction, under such exceptions and regulations as congress should prescribe; and, by the act of 1789, already referred to, appeals lie to this court from the circuit courts, and the courts of the several states. Final judgments and decrees, in civil actions, and suits in equity in the circuit courts of the United States, whether brought there by original process, or removed there from the state courts, or by appeal from the district courts, in cases where the matter in dispute exceeds 2,000 dollars, exclusive of costs, may be reexamined, and reversed or affirmed in the Supreme Court.14 Final judgments and decrees in the circuit courts, in cases of admiralty and maritime jurisdiction, and of prize or no prize, where the matter in dispute exceeds 2,000 dollars, exclusive of costs, may be reviewed on. appeal in the Supreme Court15 and in admiralty and prize cases, new evidence is admitted to be receivable on appeal in the Supreme Court. This admission is conformable to the doctrine and usage of appellate courts of admiralty, permitting the parties, upon the appeal, to introduce new allegations, and new proofs, and to add new counts to the libel.16 So, also, a final judgment or decree in any suit in the highest court of law or equity of a state, may be brought up on error in point of law, to the Supreme Court of the United States, provided the validity of a treaty, or statute of, or authority exercised under the United States, was drawn in question in the state court, and the decision was against that validity; or provided the validity of any state authority was drawn in question, on the ground of its being repugnant to the constitution, treaties, or laws of the United States, and the decision was in favor of its validity; or provided the construction of any clause of the; constitution, or of a treaty, or statute of, or commission held under the United States, was drawn in question, and the decision was against the title, right, privilege, or exemption, specially claimed under the authority of the union.17 Upon error from a decision in a state court, no other error can be as signed or regarded, than such as appears upon the face of the record, and immediately respects the questions of validity, or construction of the constitution, treaties, statutes, commissions, or authorities in dispute.
The Supreme Court is also armed with that superintending authority over the inferior courts, which ought to be deposited in the highest tribunal, and dernier resort, of the people of the United States. It has power to issue writs of prohibition to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office under the authority of the United States.18 This court, and each of its judges, have power to grant writs of ne exeat and of injunction, but the former writ cannot be granted unless a suit in equity be commenced, and satisfactory proof be made that the party designs quickly to leave the United States; and no injunction can be granted to stay proceedings in a state court, nor in any case, without reasonable notice to the adverse party.19 All the courts of the United States have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.20 So the judges of the Supreme Court, as well as the judges of the district courts, may, by habeas corpus, relieve the citizens from all manner of unjust imprisonment occurring under or by color of the authority of the United States.21
(2.) The circuit courts are established in each district (with one or two exceptions) of the seven great circuits into which the United States are divided. The first circuit is composed of the districts of Maine, New Hampshire, Massachusetts and Rhode Island; the second circuit, of the districts of Connecticut, New York, and Vermont; the third circuit, of the districts of New Jersey and Pennsylvania; the fourth circuit, of the districts of Maryland and Delaware; the fifth circuit, of the districts of Virginia and North Carolina; the sixth circuit, of the districts of South Carolina and Georgia; and the seventh circuit, of the districts of Kentucky, East and West Tennessee, and Ohio. In each district of these circuits, two circuit courts are annually held by one of the judges of the Supreme Court and the district judge of the district; but the Supreme Court may, in cases where special circumstances shall in their judgment render the same necessary, assign two of the judges of the Supreme Court to attend a circuit court, and when the district judge shall be absent, or shall have been counsel, or be interested in the cause, the circuit court may consist only of a judge of the Supreme Court.22
These circuit courts, thus organized, are vested with original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity, where the matter in dispute exceeds 500 dollars, exclusive of costs, and the United States are plaintiffs, or an alien is a party, or the suit is between a citizen of the state where the suit is brought, and a citizen of another state. They have likewise exclusive cognizance, except in certain cases which will be hereafter mentioned, of all crimes and offenses cogizable under the authority of the United States, exceeding the degree of ordinary misdemeanors, and of them they have concurrent jurisdiction with the district courts. But no person can be arrested in one district for trial in another, and no civil suit can be brought against an inhabitant of the United States out of his district; and the act of congress provides against the assumption of federal jurisdiction to be created by the assignment of promissory notes or other choses in action, except foreign bills of exchange. The circuit courts have also appellate jurisdiction from all final decrees and judgments in the district courts, where the matter in dispute, exclusive of costs, exceeds 50 dollars.23 And if any suit be commenced in a state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, or against a citizen of the same state claiming lands under a rant from another state, and the matter in dispute exceeds 500 dollars, exclusive of costs, the defendant, on giving security, may remove the cause to the next circuit court.24 The circuit courts have also original cognizance in equity and at law of all suits arising under any law of the United States relative to copyrights, and the rights growing out of inventions and discoveries.25
(3.) The district, as well as the circuit courts, are derived from, the power granted to congress by the constitution of constituting tribunals inferior to the Supreme Court.26 The United States are at present divided into twenty-nine districts, which generally consist of an entire state; but in New York, Pennsylvania, Virginia, North Carolina, and Tennessee, there are more districts than one. A court is established in each district, consisting of one judge, who holds annually four stated terms, and also special courts, in his discretion.
The district courts have, exclusively of the state courts, cognizance of all lesser crimes and offenses cognizable under the authority of the United States, and committed within their respective districts, or upon the high seas, and which are punishable by fine not exceeding 100 dollars, by imprisonment not exceeding six months, or when corporal punishment, not exceeding thirty stripes, is to be, inflicted. They have also exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, of seizures under impost, navigation, or trade laws of the United States, where the seizures are made upon the high seas, or on waters within their districts navigable from the sea by vessels of ten or more tons burden; and also of all other seizures made under the laws of the United States; and also of all suits for penalties and forfeitures incurred under those laws. They have also cognizance concurrent with the circuit courts, and the state courts, of causes where an alien sues for a tort committed in violation of the law of nations, or of a treaty of the United States; and of all suits at common law in which the United States are plaintiffs, and the matter in dispute amounts, exclusive of costs, to 100 dollars. They have jurisdiction, likewise, exclusive of the courts of the several states, of all suits against consuls or vice-consuls, except for offenses above the magnitude which has been mentioned.27 They have also cognizance of complaints, by whomsoever instituted, in cases of captures made within the waters of the United States, or within a marine league of its coasts.28
The judges of the district courts have also, in cases where the party has not had a reasonable time to apply to the circuit court, as full power to grant writs of injunction to operate within their respective districts, as is exercised by the judges of the Supreme Court, and to continue until the next circuit court.29
In addition to these general powers vested in the district courts, they have, in those cases where the districts are so situated as riot to permit conveniently the presence of a judge of the Supreme Court, the powers of a circuit court superadded to their ordinary powers of a district court.
To guard against the inconvenience of a difference of opinion between the circuit judge and the district judge, when holding together a circuit court, it is provided by law, that in all cases of appeal or error, from the district to the circuit court, judgment is to be rendered in conformity to the opinion of the judge of the Supreme Court, presiding in such circuit court. And in all other cases of a disagreement of opinion between the circuit and district judges, the point may be certified into the Supreme Court for its decision, but in no case shall imprisonment be allowed, or punishment inflicted, where the judges of the circuit court are divided in opinion upon the question.30
The district and territorial judges of the United States are required to reside within their respective jurisdictions; and no federal judge can act as counsel, or to be engaged in the practice of the law.31
(4.) The state courts are, in some cases, invested by acts of congress, with the cognizance of cases arising under the laws of the United States. By the acts of March 8th, 1806, and April 21st, 1808, and March 3d, 1815, the county courts within, or adjoining the revenue districts, in certain parts of the states of New York, Pennsylvania, and Ohio, are authorized to take cognizance of prosecutions for fines, penalties, and forfeitures, arising under the revenue laws of the United States; and the state or county courts adjoining any collection district, in relation to taxes or internal duties which may, at any time, hereafter, be assessed, have cognizance of all suits for taxes, duties, fines, penalties, and forfeitures arising thereon.
In attending to this general survey of the organization of the judiciary establishment of the United States, it will be perceived, that all the great features of the system are to be found in the act of congress which was passed in September, 1789, at the first session of the first congress under the present constitution. It has stood the test of experience since that time, with very little alteration or improvement, and this fact is no small evidence of the wisdom of the plan, and of its adaptation to the interest and convenience of the country. The act of 1789 was the work of much profound reflection, and of great legal knowledge; and the system then formed and reduced to practice has been so successful and so beneficial in its operation, that the administration of justice in the federal courts has been constantly rising in influence and reputation.
The principal officers of the courts are attorneys and counselors, clerks and marshals.
(1.) Attorneys and counsel are regularly admitted by the several courts, to assist the parties in their pleadings, and in the conduct of their causes, in those cases in which the parties do not appear and manage their own causes personally, as they are expressly permitted to do.32 This privilege conceded to parties, though reasonable in itself, is upon the whole useless, and the necessity of a distinct profession to render the application of the law easy and certain to every individual case, has always been felt in every country under the government of written law. As property becomes secure, and the arts are cultivated, and commerce flourishes, and when wealth and luxury are introduced, and create the infinite distinctions and refinements of civilized life, the law will gradually and necessarily assume the character of a complicated science, requiring for its application the skill and learning of a particular profession. After the application of the twelve tables, suiters at Rome were obliged to resort to the assistance of their patrons, and judicial proceedings became the study and practice of a distinct and learned body of men.33 The division of advocates into attorneys and counsel has been adopted from the prevailing usage in the English courts. The business of the former is to carry on the practical and more mechanical parts of the suit, and of the latter to draft or review and correct the special pleadings, to manage the cause at the trial, and also during the whole course of the suit, to apply established principles of law to the exigencies of the case. In the Supreme Court of the United States, the two degrees of attorney and counsel are kept separate, and no person is permitted to practice both as attorney and counselor in that court. This was by a rule of court in February, 1790; and when, afterwards, in August, 1801, the court declared that counselors might be admitted as attorneys on taking the usual oath, this did not mean or imply, that if a counselor was thus admitted an attorney, he could continue to act as counselor He must make his election between the two degrees. In all the other courts of the United States, as well as in the courts of this state, the same person can be admitted to the two degrees of attorney and counsel, and exercise the powers of each.
Besides the ordinary attorneys, the statute has directed,34 that a meet person, learned in the law, be appointed to act as attorney general of the United States, and besides special and incidental duties, it is made generally his duty to prosecute and conduct all suits in the Supreme Court in which the United States are concerned,35 and to give his advice and opinion upon questions of law, when required by the president or the heads of the departments. Each judicial district has likewise a public officer to act as attorney for the United States in the district, and to prosecute all delinquents for crimes or offenses cognizable under the authority of the United States, and to prosecute all civil actions within his district in which the United States are concerned.
(2.) Clerks are appointed by the several courts, except that the clerk of the district court is ex officio clerk of the circuit court inn such district. They have the custody of the seal and records, and are bound to sign and seal all process, and to record the proceedings and judgments of the courts. and this is a trust of so much importance, that, in addition to the ordinary oath of office, clerks are obliged to give security to the public for the faithful performance of their duty.36 To guard still further against abuse of office, all moneys paid into the circuit or district courts, or received by the officers, in cases pending therein, are required to be immediately deposited in bank; and no money can be drawn out of bank, except by an order of a judge, to be signed by him, and certified of record by the clerk. The clerks are likewise bound, at every regular session of the courts, too exhibit an account of all the moneys remaining in court.37
(3.) Marshals are analogous to sheriffs at common law. They are appointed for each judicial district by the president and senate for the term of four years, but are. removable at pleasure; and it is the duty of the marshal to attend the district and circuit courts, and to execute, within the district, all lawful precepts directed to him, and to command all requisite assistance in the execution of his duty. There are also various special duties assigned by statute to the marshals. The appointment of deputies is a power incidental to the office, and the marshal is responsible civiliter for their conduct, and they are removable, not only at his pleasure, but they are also by statute made removable at the pleasure of the district or circuit courts.38 The act says, that the marshal shall be removeable at pleasure, without saying by whom; and on the first organization of the government, it was made a question whether the power of removal, in the case of officers appointed to hold at pleasure, resided any where but in the body which appointed, and of course, whether the consent of the senate was not requisite to remove. This was the construction given to the constitution while it was pending for ratification before the state conventions, by the author of the Federalist. “The consent of the senate,” the Federalist observes,39 “would be necessary to displace as well as to appoint;” and he goes on to observe, that “those who can best estimate the value of a steady administration, will be most disposed to prize a provision which connects the official existence of public men with the approbation or disapprobation of that body, which, from the greater permanency of its own composition, will in all probability be less subject to inconstancy than any other member of the government.” But the construction which was given to the constitution by congress, after great consideration and discussion, was different. In the act of establishing the treasury department,40 the secretary was contemplated as being removable from office by the president. The words of the act are, “That whenever the secretary shall be removed from office by the president of the United States, or in any other case of vacancy in the office, the assistant shall act,” etc. This amounted to a legislative construction of the constitution, and it has ever since been acquiesced in, and acted upon, as decisive authority in the case. It applies equally to every other officer of government appointed by the president and senate, whose term of duration is not specially declared. It is supported by the weighty reason, that the subordinate officers in the executive department ought to hold at the pleasure of the head of that department, because he is invested generally with the executive authority, and every participation in that authority by the senate was an exception to a general principle, and ought to be taken strictly. The president is the great responsible officer for the faithful execution of the law, and the power of removal was incidental to that duty, and might often be requisite to fulfill it.
This question has never been made the subject of judicial discussion; and the construction given to the constitution in 1789, has continued to rest on this loose incidental declaratory opinion of congress, and the sense and practice of government since that time. It may now be considered as firmly and definitively settled, and I entertain no manner of doubt of the good sense and practical utility of the construction. It is, however, a striking fact in the constitutional history of our government, that a power so transcendent as that is, which places at the disposal of the president alone, the tenure of every executive officer appointed by the president and senate, should depend upon inference merely, and should have been gratuitously declared by the first congress, in opposition to the high authority of the Federalist; and should have been supported or acquiesced in by some of those distinguished men who questioned or denied the power of congress, even to incorporate a national bank.
The marshal is obliged to give security to the United States in 20,000 dollars, for the faithful performance of the duties of his office by himself and his deputies; and, together with his deputies, to take an oath of office.41 By the common law, the death of the principal is a virtual repeal of the authority of the substitute or deputy; but to guard against any inconvenience which might arise from the operation of this principle, and to prevent the mischiefs of a vacancy in office, the act establishing the judicial courts has provided, that in case of the death of the marshal, his deputies shall continue in office, unless otherwise specially removed, and shall execute the same in the name of the deceased marshal, until another marshal be appointed and sworn. So, a marshal, when removed from office, or his term of office expires, may still execute all process in his hands, and he remains responsible for his prisoners until they are duly delivered over to his successor.42 And with respect to the custody of the prisoners, under the laws of the United States, the marshal is directed to deliver his prisoners to the keeper of one of the jails of the state in which he is marshal, in cases where the legislature of the state, in conformity with the recommendation of congress, have made it the duty of the jailers to receive them; but where they have not, the marshal, under the direction of the district judge, is to provide his own place of security.43