not exceeding four for each court, as the district judge may determine, to maintain order in the courtroom, to wait upon the grand and petit juries, and for other necessary purposes, who shall be allowed for their services the sum of $6 per day to be paid only for actual attendance on days when the court is in session or the judge or a jury is present.'

"SEC. 2. That section 715 of the Revised Statutes is hereby repealed."

(b) The appropriation of sufficient funds to permit the employment of a messenger at a salary of $1,500 per year by each circuit judge desiring such assistance. No enabling legislation is required to authorize this appropriation.

(c) The appropriation of sufficient funds, after the passage of the act set out in paragraph (a) above, to permit the employment of a court crier at a salary of $1,800 per year by each district judge and by each circuit court of appeals requiring the services of such an officer.

PRESENT LAW

The present state of the law authorizing the appointment of court criers, bailiffs, and messengers and fixing their compensation is as follows:

Judicial Code, section 5 (28 U. S. C., 1934 ed., sec. 9): "The district court for each district may appoint a crier for the court; and the marshal may appoint such number of persons, not exceeding five, as the judge may determine, to wait upon the grand and other juries, and for other necessary purposes.'

Revised Statutes, section 715, as amended by the act of March 3, 1905 (35 Stat. 1259) (in part set out in 28 U. S. C., sec. 595): "The district courts may appoint criers for their courts, to be allowed the sum of $3 per day; and the marshals may appoint such a number of persons, not exceeding five, as the judges of their respective courts may determine, to attend upon the grand and other juries, and for other necessary purposes, who shall be allowed for their services the sum of $3 per day, to be paid by and included in the accounts of the marshal, out of any money of the United States in his hands. Such compensation shall be paid only

for actual attendance."

Department of Justice Appropriation Act, 1944, approved July 1, 1943 (ch. 182): "For pay of bailiffs, not exceeding three bailiffs in each court, except in the southern district of New York and the northern district of Illinois; * * *. Provided, That, except in the case of bailiffs in charge of juries over Sundays and holidays, no per diem shall be paid to any bailiff unless the judge is present and presiding in court or present in chambers: Provided further, That none of this appropriation shall be used for the pay of bailiffs when deputy marshals or marshals are available for the duties ordinarily executed by bailiffs, the fact of unavailability to be determined by the certificate of the marshal."

No funds have been provided by Congress for the compensation of court criers since June 30, 1932.

Under authority of the act of December 6, 1924 (43 Stat. 704), the Attorney General increased the compensation of bailiffs from $3 to $5 per day as of July 1, 1924; reduced it to $4.50 on June 1, 1932; again increased it to $5 on August 16, 1937; on December 26, 1942, increased it to $5.50; and on May 1, 1943, increased it to $5.75 per day, the rate presently in effect.

There is no legislation either authorizing or prohibiting the employment of messengers by the district judges.

*

* *

Judicial Code, section 127 (28 U. S. C., sec. 224): "The marshals for the several districts in which said circuit courts of appeals may be held shall pay all incidental expenses of said court, including criers, bailiffs, and messengers

* *

Funds for the eompensation of messengers were provided by Congress until June 30, 1933, but no funds have been provided and no messengers have been employed by either district or cireuit judges since that date.

SUPPORTING STATEMENT

The subject referred to your committee involves the assistance with which a judge must be provided if he is to perform his judicial duties in the courtroom and in his chambers efficiently and in a manner compatible with the dignity and decorum which the Nation is entitled to expect of a Federal court. When pre

siding in court a judge must have the assistance of a competent, experienced, and

dependable officer to proclaim the opening and closing of the session, to administer the oath to witnesses, to carry out the judge's directions with regard to the many matters which arise in the conduct of the proceedings, and generally to maintain order in the courtroom. If a large number of parties and witnesses are in attendance and particularly during sessions of criminal court, more than one officer may be needed for the latter purpose. Judicial decorum demands that the judge remain in his place on the bench while the court is in session. He must, therefore, have available at all times the services of a messenger by whom he may transmit messages and whom he may send for books and papers needed during the course of the proceedings. Likewise when a judge is engaged in his chambers in pretrail or other conferences with counsel or in the study of matters under submission and the preparation of opinions his need for the services of a receptionist and messenger is equally obvious and imperative. Callers must be received and their business ascertained in order that the judge's time may be conserved for his important work and not unduly consumed by those who have no rightful claim upon it. Books and papers must frequently be obtained for him from the court library. the clerk's office and elsewhere.

All this is obvious to any judge; and, prior to 1932, each district judge was fully provided with all necessary assistance of this kind. He appointed a court crier who assisted him in the courtroom and a messenger who attended him both in the courtroom and in chambers. In addition the marshal assigned one or more of his deputies or appointed one or more temporary bailiffs when needed to assist the crier in preserving order in the courtroom and in waiting upon juries when they were in attendance. But, on July 1, 1932, the funds previously provided to pay court criers were cut off and on July 1, 1933, the appropriation for messengers was discontinued. Neither criers nor messengers have been employed in the Federal courts since those dates.

The necessity for the kind of assistance which we have described of course remained. The judges therefore were compelled to turn to the only remaining court officers, the bailiffs, whom the marshals were still authorized to employ on a per diem basis, for such of this assistance as those officers could render. Although the bailiffs were originally intended merely to assist in preserving order in the courtroom and to wait upon the juries, in most districts certain bailiffs came to be regularly employed and permanently assigned by the marshals to individual judges and attended them as receptionists and messengers in their chambers as well as in the courtroom.

Prior to July 1, 1939, the Department of Justice appropriation acts prohibited the payment of bailiffs for any day on which the court was not in session even though the judge was present in chambers and the bailiff was in attendance upon him. Thus it came about that in order to make certain that these faithful employees would be paid for the days on which they were actually performing services the judges were compelled to convene perfunctory formal session of the court even though there was no business to transact. In the Department of Justice Appropriation Act, 1940, for the fiscal year beginning July 1, 1939, Congress recognized the judges' need for assistance when working in chambers. That act accordingly authorized the payment of bailiffs for all days when the judge was present in chambers even though not presiding in court. A similar provision has been contained in all subsequent appropriation acts and is the basis upon which bailiffs are now employed.

It is almost universally agreed by the Federal judges and we find that the present arrangement for affording them necessary assistance in court and chambers through the use of per diem bailiffs is inadequate, unsatisfactory, and unfair to the bailiffs.

A bailiff, even though permanently assigned to a judge, is still nonetheless a per diem employee who may be paid only for those days on which the judge is present. If the judge remains away from his chambers in order to study a difficult case without interruption in the seclusion of his home, his bailiff may go unpaid for the day. The same is true if the judge is called away to attend a judicial conference or to perform judicial duty in another district or circuit or if he takes a summer vacation or is overtaken by illness. In any such case his bailiff must seek other temporary employment or he and his family may go unfed. And since he seldom

knows far in advance when the judge will be away his prospects of obtaining other work for those days are none too bright. But this is not all. Other judicial employees not only receive fixed annual salaries but they are paid for Sundays and legal holidays and have as well the privilege of sick leave and vacation leave with pay. They have also recently become entitled to old-age-retirement privileges, a most valuable and cherished right; not so the permanently assigned bailiffs. Although they must be competent and dependable and are for all practical purposes permanent employees they have no fixed income upon which they can count nor have they any of these other rights and privileges enjoyed by their coworkers in the judicial establishment. That this is a gross injustice to a most faithful group of Government employees which cries out for correction we think all will agree.

Another fundamental objection to the present arrangement results from the fact that the permanently assigned bailiffs, although working for and responsible to the judge, are appointed not by the judge but by the marshal. Such appointment is doubtless appropriate in the case of temporary bailiffs employed to assist the marshal in preserving order in court and in attending upon juries. But in the case of a bailiff permanently assigned to attend a judge both in court and in chambers it is wholly wrong in principle. Such employment is obviously of a confidential and personal nature. To be of any value, the work must be performed to the judge's satisfaction. The person engaged in it should therefore be subject to appointment and removal by the judge whose assistant he is. It must be remembered that while the judge is responsible for the conduct of proceedings in the courtroom, and for the good order and decorum which must be maintained therein, it is not possible for him to enforce his directions in person. The court officer must be the judge's right arm in the courtroom and should, therefore, be a person of experience and judgment directly responsible to the judge for his efficiency and one upon whom the judge can rely as having sufficient discretion and judgment to preserve order and decorum under general instructions without the necessity of having the judge's attention diverted from the proceeding immediately before him. It should be said in all fairness that the marshals have in most cases appointed as permanent bailiffs persons selected by or satisfactory to the judges to whom they have been assigned. This, however, has been a matter of courtesy rather than of right and unfortunately has not always been true.

The third objection to the present arrangement is that bailiffs, being employed only by the day, may not be paid their traveling expenses when away from home on court business. In a great many districts, court is regularly held in a number of different places throughout the district. In a considerable number of these districts either the business is not sufficiently concentrated in one major city or the number of judges does not permit any one judge to sit regularly in but one place of holding court. In such districts, permanently assigned bailiffs cannot be employed at anything approaching full time since a bailiff cannot except at his own expense accompany the judge when he is required to hold court away from home. A judge's need for a court officer and messenger is ordinarily just as great when the judge is on circuit as when he is at home, however. Since this need cannot be met in such districts by the employment of permanent bailiffs it has been met, to some degree at least, by the assignment of deputy marshals, since they are authorized to travel on official business at Government expense. This arrangement, however, is not always satisfactory and it also involves taking the deputy marshals away from their normal duties. Then, too, they are appointed by and are responsible to the marshal and not the judge. This, therefore, is clearly not a satisfactory solution of the problem.

Statistics for the year ended October 31, 1942, gathered by the Attorney General at the request of our committee illuminate the different conditions which exist in judicial districts throughout the country and which render the use of permanent bailiffs in many of them impracticable under the present law and the use of deputy marshals necessary in those districts to assist the judges. These statistics indicate that in the following 36 districts no bailiffs were permanently employed during the period under inquiry and that deputy marshals were assigned to attend the judges to the extent shown by the appended figures which indicate the portion of the deputies' salaries estimated to represent time devoted to that work, viz:

In this district 1 permanent bailiff was employed, at a compensation of $1,020.

43, 132. 89

In all the 48 remaining judicial districts of the country, excluding the District of Columbia and the Territories, more or less permanently assigned bailiffs were employed during the period reported on, the districts and the total amount of the compensation of such bailiffs being as follows:

In these 48 districts having 124 district judges the portion of the salaries paid to deputy marshals, representing time spent in attendance upon the judges in court or otherwise during the period studied, totaled only $42,268.61, as compared with $43,132.89 so expended in the other 36 districts having 51 district judges. While the foregoing figures may not be in all respects complete and comparable they clearly show the diverse ways in which the problem is met in the various judicial districts of the country.

The conclusion reached by your committee is that the need of the district judges for the assistance which we have described cannot satisfactorily be met through the present plan of employment by the marshals of per diem bailiffs. In seeking a solution we had in mind the fact that the ancient and well recognized office of court crier 2 is still authorized by law to be filled by appointment by the judges, although we noted that the office is now upon a per diem basis under section 715 of the Revised Statutes and that no appropriations for the employment of criers have recently been made. If, however, the office of court crier should be revived by appropriation, it would merely be necessary to amend the substantive law so as to add the duties of bailiff and messenger and change the compensation to a suitable annual salary with provision for necessary traveling expenses in order to meet all the defects in the present system. Believing that the revival of the office of court crier, modified as suggested, would involve a minimum of change in existing law, your committee recommends that the necessary congressional action to accomplish it be sought. It will be observed that such action would not in any way affect the authority of the marshals to continue to employ occasional temporary per diem bailiffs when and as needed.

Certain details of the proposal remain to be mentioned. We suggest that the statute be amended so as expressly to impose upon the court crier the duties of bailiff and messenger as well. It is believed that one individual can ordinarily perform the duties of all three positions. Occasionally, of course, it will still be necessary to employ additional per diem bailiffs, as at present. This will be particularly true when juries are present. Section 5 of the Judicial Code limits the total number of bailiffs to be employed for each district judge's court to five. Since the court crier, if revived, will also act as a bailiff, it would seem reasonable to reduce the statutory maximum number of bailiffs per court from five to four. It has been the practice to reduce still further the maximum number in all but certain busy districts in the annual appropriation acts and this practice would doubtless be continued. The duties of court crier and bailiff, strictly speaking, are performed only when court is in session. The duties of messenger to the judge, on the other hand, must be performed when the court is not in session but the judge is working in chambers upon his pretrial calendar, upon matters under submission, upon the administrative business of the court, or upon the many other duties which he must perform out of the courtroom. Thus the duties of messenger will take up that portion of the crier's time which is not occupied in courtroom duties and, therefore, will fully justify the payment of an annual salary to the crier.

In fixing upon the salary to be recommended, two factors are significant. A bailiff employed, as many are, for 300 days in a year receives a total compensation during the year of $1,725. The minimum salary fixed by law for a deputy marshal is now $1,800. We believe that the office of court crier, as contemplated, is fairly comparable as to duties, responsibility, and qualifications needed, with that of deputy marshal. We have accordingly recommended that the salary be fixed at $1,800 and that the usual allowance for necessary traveling on the business of the court be authorized. We also recommend that the per diem compensation of temporary bailiffs be increased to $6 in recognition of the responsibilities of these temporary but essential court attendants and that the statutory provision for their payment be clarified so that they may be paid only for actual attendance on days when the court is in session or the judge or a jury is present. This is substantially the present proviso in the Department of Justice appropriation_act, and it appears to be entirely satisfactory as applied to temporary bailiffs to whom alone it would relate if the recommendations of your committee are adopted. The provision of court criers for the district judges would automatically, under section 127 of the Judicial Code, authorize the employment of one crier by each circuit court of appeals, who could travel with the court when on circuit and act 1 In 17 of these 48 districts no deputy marshals were so employed.

* Court criers were first authorized for the Federal courts by the act of February 26, 1853 (10 Stat. 165).