The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.[84] Such powers are said to be essential to and inherent in the organization of courts of justice.[85] The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.[86]
APPOINTMENT OF REFEREES, MASTERS, AND SPECIAL AIDS
The administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. The practice of referring pending actions to a referee was held in Heckers v. Fowler[87] to be coeval with the organization of the federal courts. In the leading case of Ex parte Peterson[88] a United States district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. The Court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. This action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for the Court, declared: "Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. * * * This power includes authority to appoint persons unconnected with the Court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause."[89] The power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the Court sits in law or equity.
THE POWER TO ADMIT AND DISBAR ATTORNEYS
Subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. According to Chief Justice Taney, it was well settled by the common law that "it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed." Such power, he made clear, however, "is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself."[90] The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland.[91] In the course of his opinion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he declared, is judicial power. The attorney is an officer of the Court and though Congress may prescribe qualifications for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the Constitution or to deprive a pardon of the President of its legal effect.[92]
Organization of Courts, Tenure and Compensation of Judges
"ONE SUPREME COURT"
The Constitution is almost completely silent concerning the organization of the federal judiciary. Although it provides for one Supreme Court, it makes no reference to the size and composition of the Court, the time or place for sitting, or its internal organization save for the reference to the Chief Justice in the impeachment provision of article I, § 3, relating to impeachment of the President. All these matters are therefore confided to Congressional determination. Under the terms of the Judiciary Act of 1789, the Court consisted of a Chief Justice and five Associate Justices. This number was gradually increased until it reached a total of ten judges under the act of March 3, 1863. Due to the exigencies of Reconstruction and the tension existing between Congress and the President the number was reduced to seven as vacancies should occur, by the act of April 16, 1866. The number never actually fell below eight, and on April 10, 1869, with Andrew Johnson out of the White House, Congress restored the number to nine, where it has since remained. There have been proposals at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler of March 21, 1937, expressed doubts concerning the validity of such a device and stated that "the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts."[93] Congress has also determined the time and place of sessions of the Court, going so far in 1801 as to change its terms so that for fourteen months, between December, 1801 and February, 1803 the Court did not convene.
INFERIOR COURTS MADE AND ABOLISHED
By article I, § 8, paragraph 9, Congress is expressly declared to have the power to constitute tribunals inferior to the Supreme Court, and the power is repeated in a different formula in article III, § 1, when provision is also made for tenure during good behavior and for a compensation which shall not be diminished. Since 1789 Congress, with repeated judicial acquiescence and concurrence, has interpreted both of these sections as leaving it free to establish inferior courts or not, as it deems fit in the exercise of a boundless discretion. By the Judiciary Act of 1789, Congress constituted thirteen district courts which were to have four sessions annually[94] and three circuit courts which were to consist jointly of the Supreme Court judges and the district judge of such districts which were to meet annually at the time and places designated by the statute.[95] By the Judiciary Act of February 13, 1801, passed in the closing weeks of the Adams Administration, the number of judges of the Supreme Court was to be reduced to five after the next vacancy, the districts were reorganized, and six circuit courts consisting of three judges each and organized independently of the Supreme Court and the district courts were created.[96] Whatever merits this plan of organization possessed were lost in the fierce partisanship of the period, which led the expiring Federalist Administration to appoint Federalists almost exclusively to the new judgeships to the dismay of the Jeffersonians who, upon coming into power, set plans in motion to repeal the act. In a bitter debate the major constitutional issue to emerge centered about the abolition of courts once they were created in the light of the provision for tenure during good behavior. Suffice it to say, the repeal bill was passed and approved by the President on March 8, 1802[97] without any provision for the displaced judges. The validity of the act of 1802 was questioned in Stuart v. Laird,[98] where Justice Paterson in a terse opinion, which hardly touched Charles Lee's argument that Congress lacked power to abolish or destroy courts and judges, held for the Court that Congress has the power to establish inferior courts from time to time as it may think proper and to transfer a cause from one tribunal to another. In answer to the argument that Supreme Court Justices could not constitutionally sit as circuit judges, he pointed to practice and acquiescence contemporaneous with the Constitution as an interpretation too strong and obstinate to be shaken or controlled.