PUBLISHED WEDNESDAYS AND SATURDAYS BY JOHN FENNO, No. 69, HIGH-STREET, BETWEEN SICOND AND THIRD STREETS, PHILADELPHIA
[No. 31, of Vol. lII.]
PHILADELPHIA, AUGUST 13,
[ The very interejling Ciife which V'Ji determined on the 3d injlavt, in th
Supreme Court of the Urntect States, held in this city, having engager
the public attention, we presume it agreeable to our readers U
Jee an accurate Jl at em ent oj the proceedings in that cafe, which we are
authorised to fay is authentic.J
SUPREME COURT OF the UNITED STATES
Tuesday. Augutl 2, 179 1 "
West, Ptif. in error, HI 7ILLIAM BRADFORD, Esq. of
t i. > VV council lor the plaintiff in error,
Barnes,*? fl/wj Dejt. ) prefentcd to theCouri a paper purporting
to be a Writ of Eiror, from thfc Citcuit Court of Rhode-Island.
issued in the name of tl e President of the United Stales, and tellcd
by the Chief Justice of this Couit, dire&ed to the Judges of the
Circuit Court of Rhodc-Ifland, and signed by the clerk of the
lame : it was accompanied with a copy of the proceedings had iu
the laid Circuit Court, and with an alignment of general errors.
On motion of Mr. Bradford, ordered by the Couit, that the
■writ, with the errors affigm d, be read by the clerk. Oil this Mr.
Bradford moved the Court that the defendants in t rior be dire&-
ed to rejoin.
David L. Barnes, Esq. of Massachusetts, on? of the defendants
in error, and a counfe'llor of the Court, role and dated to the Court
that the proceedings in the above cause could not be properly be
fore the Court : that the Writ presented as <> Writ of Error, could
not in law be regarded as a good Writ of Error, being deficietH
in those particulars which gve a Wiit of effect that it
was not properly a Writ from the Supreme Court of the United
States, as it was not signed by the cle:k, nor fealcd with the seal
of the fame ; but was more properly a Writ from the Circuit Cqui t
Rhode-Island, directed to it felt, although issued in the name of
the President of the United States, and tested by the Chief Justice
of this Court, still that all the process of the Court of the United
States was in the fame style—and that to possess these
cannot make a writ good unless accompanied by the ngnature ol
the clerk and the seal of this Court—that he conceived there was
an absurdity in a Court ifluing a writ ducfted to iifelf, to cause its
own proceedings to be removed to a higher Court for rcvifion ; he
therefore prayed the opinion of the Court, whether he should re
join to the errors afligned, or not; considering the proceedings as
by no means regularly before the Court.
Mr. Bradford, in reply, after admitting that the Court could not
sustain the motion unless the proceedings wrre regularly before
them, observed, that a Writ of Error, by the principles of the com
mon law, and of the tft of Congress, was a Writ of Right, and
that it issued of course upon the application of the party. That
it was merely the form by which a suitor expressed his desire to
avail him of the benefit of the appellate jurifaiftion provided for
in the constitution, and to which he was entitled. That in all
cases of appeal, the ast of the party, without any writ whatsoever,
was fufficient to brftig the caofe before the superior tribunal; and j
though in cases of error a writ was necefliry, yet the laws of the
United States had neither prefenbed the form, directed by whom
it was to be authenticated, nor declared from what Couit it was
toiffue. All the fubfar.tial provisions of the ad had been com
plied with. The party had fucd it out—had given fecuritv to pro
fecure it toeffeft; and the proper Judge had thereupon ilfued the
citation to the defendants in errot, which was tantamount to a re
gular allocatur. The writ was in the name of the President of
the United States, was tested in the name of the Chief Justice;
and whether it was signed by the Clerk of the Supreme or of the
Circuit Court, was only matter of form, and wholly immaterial,
wh re that form was not pofitivtly piefcribed. The plaintiff hud
availed himfclf of such a form as the neceflity of his cafe fuggeil
ed, and he ought not to be injured by it unless he was clearly
wrong.
He said that in turning this question in his mind, he found him
fclf depiived of his ufuai guides. There was no express Legifla
tivc dire&iow, no Judicial decision, nor even any Rules oi the
Courts eftabbfred, from which he could argue. But he appre
hended the meaning of Congrtfs might be inferred fiom other
provisions in the ast ; and it was fair to argue al> inconveniently
wheie the position contended for did not contravene the express
intention of. the Legifhture.
He remarked that a Writ of Error was a fuperfedreas to an Exe
cution, and that, if it were not so, a party might be ruined by an
erroneous judgment before It could be rcverkd. But the ast, io
§ 14, had directed that it should be a fuperfcdcas and flay Execu
tion onlv when a copy of the Writ of Error is lodged for the ad
vert party in the Clerks office, where the record remains,
" within ter, days (Sundays exclusive) after the rendering the judgment
complained of." He said that the benefit of a fuperfedeas was an
important one, and wss intended for all the citizens of the Union ;
"but on the conftruftion of the defendants in error, it could be en
joyed by those only who relided near the feat of the National Go
vernment. It would be mockery to tell a suitor in Georgia or
Kentucky, that he should enjoy this benefit, " provided he would go
to Philadelphia and return in ten days." In those DiftricU the
powers of magic would be necefTary to obtain the benefits of the
ast ; and unless the days of chivalry were to return, when a man
could mount on the back of a Griffin and post through the air, the
extreme parts of the Union could never enjoy them. The Lcgif
lature therefore must have intended, that the writ should issue in
such manner as to ferure the party the benefit of a supers deas, and
consequently in the di drift where the judgment was rendered.
A contrary conftruftion imputed folly 01 partiality 10 the act.
That tb«* citation which accompanied the W T rit of Error, and
formed it as it were, a part of its constitution, was directed to be
issued by a Judge of the Circuit Court : and ic was rcafonable to
infer th.rt a Writ'of Error mighi be authenticated under the seal
of the fame Couit.
That there was nothing in the nature of a Writ of Error which
required it to be ifiued by the Court to which it was to be re
turned • arid thatthe v.'oid return-used in the ast, did not in legal
underftandmg. import a fen d*ng back, or thai a from the
Court into which the proceedings arc to be tranfmittcd. That in
England it iflucd out of Chancery, whether it was to be returned
into the King's Bench, Exchequer Chamber, or Parliament. That
its true definition was, " A Commission to a Superior Court to
examine the judgment of a Subordinate Court of record and
that the will of the p?rty cxprefled in fiich a writ .as the prcfent,
was a fufficient Covimiflion, in a cafe where the light of appeal
was clcar, and no particujaf form ellabiifhed.
Here Mr. Bradford wtnftß:cd by the Court how on thefc prin
ciples, they were to proceed in cafe a Circuit Court should retufe
to obey the writ ? He answered, that a rule to return the writ and
proceedings, might be obtained in th : s Couit, and obedience to
it enforced in the fame manner as if upon an appeal, the inferior
Court ftiould rcfafe to fend up 4hc decree that was complained of.
Saturday, August 15, 1 791.
TP?-
A< to the rf turn which had been r.hjrfted to, he said it was fuf
fic. ntly rcgulai. It was.under the seal of the Court and hgnature
->t i heir CI rk, and must b<- conlidered as the return of the Court.
—There was no need of the signature of the Judges; and confli
cted as the Circuit Court was, it could not be expefled. One ol
its judges was indeed a certain person and reiident'n ihe diftrift ;
but where fliould the Clerk look for thole Judges of the Supreme
Court who happened to be oil that Circuit they might be veiy
liftant from the diftridt when the return was required. But he
would not dwell on that point, and concluded by repeating his
mrti n that the defendant mightiejoin.
Mr.Barnes laid, he had nothing to adci to wnst he had before of
fercd to the Court, but lubniiltid the matter to their determina
tion,
riic Co U !t then informed the parties, that they would consider
e queition —and adjourned unt 1 the next day at ten o'clock.
Court being opened, the Chief Justice meruioned that the Court
were about to deliver their opinion on the cjutftvon fubmiited to
them yesterday.
Judge IREDELL.
THERE arc two quellions before the Court,
tit Whether the tranfeript of the record be returned here, ir
GOLifequence ol a Writ of Ir Io tissued agreeable to law ?
2d. I! it be so, whether the return of it be regular ?
As to the ft.ft quedion, it is obje&ed that the WfH can only is
sue out of the Supreme Court, witch isto.correft the error com
plained of, if there be any : Whereas the present Writ has ifTued
out of the Couit which is alledged to have committed the Error.
1 am of opinion, that the objt ftion is a good one, and iHa 11 give
mvrcafons as clearly as I am able.
The A£i of Congress, which contains all that conccrns Writs
of Error, is silent on this point,—l hough it gives other di.c£lions,
it does not fay out of what Court the Writ is to. ilTue.
Wc are therefore under the necefiity of determining either by
former principles ot law (if such apply) or by analogy and Ycajon.
As to the former, so far as precedent is concerned, we have no
certain guide. The practice in England is, for this Writ to issue
out of the Chancery, the general depository of all original Writs :
No luch practice in America has obtained generally. In New-
York indeed, I believe, Writs do issue out of the Chancery, by an
express Ast of Affemhly. There may possibly be one or (woo
ther inttanccs, though Ido not know that there are. But it is cer
tain the general prattice in America has been othei wile.
We muff confcquently decide in this cafe, by the rcafon of the
thing, and having reference as nearly as we can to general princi
pies of law.
The 14 Seaion of the Judicial A3 cnafts, " That all the be
" fore m< ntioned Courts of the United States, fball have power
" to issue Writs of Scire facias, Habeas Corpus, and all other Writs
11 not specially provided Jor by Statute which may be necessary for
" the exert:ite ot their refpeftive jurifdiftions, and agreeable to
" the principles and usages of law."
There are only three ways in which the Writ inqueflion can issue.
id. Out of the Supreme Court.
2d. Out of the Circuit Court.
3d. Or out ot either, optionally.
The last method would crcate such confufion and irregularly,
it is presumed nobody would contend for it. Nothing could ap
peal more ridiculous than a Record in which upon one parje should
he contained proceedings removed by a Writ of Error, issued outof
one Court, and, upon the next, proceedingsexa&ly firailai, though
between different parties, removed by a Wi it ot Error issued out of
another Couit.
That it (hou!d iffueoutof the Supreme Court, is natural and j
obvious, becaul'e it is their duty to administer the remedy wanted, j
Inconveniences only could have fuggellcd the reversed mode, of
applying for a remedy to the very Court which had occahoned
the grievance.
A Writ trom a Court to itfelf seems absurd. Could any thing
be more monstrous than that a Court, upon being informed that
a party wanted a Writ of Error, should direst their clerk to make
out a Writ directed to themselves ? If a thin-; is right to be done,
and the fame Court is to do it, it would fecm proper that it should
be done on motion. But furtly the law would be very unwise,
in trusting the only remedy for Error with a Court that had com
mitted the Error. It does not a& so weakl) as to tuppofe that
even Courts of Juflice will always do whatthey ought to do. And
though afterwards this Court might compel them to do what was
right, yet the law will not fuffcr an incongruous proceeding in
the fiift instance, for the fake of a complete remedy in the ferond.
But ev< n in this inflance, it might not be complete, for the ten
days after judgment, within which a copy of the W T rit muff be
lodged in the Office, or Execution cannot be stayed, would al
most in every cafe elapse beforethe final u mcdycouU be obtained.
This indeed is the great obje&ion, and the only plausible one,
to. the Writ llTuing out of the Supreme Court. And it has been
urged, and pressed with much lorce and ingenuity by the Coun
! fel for the Plaintiff iit Error, that the right of obtaining a Writ of
Error, might, upon this conftiu&ion be rendered nugatory in al
most every instance.
This inconvenience does indeed ex-ft. Il is a very weighty
one, and I heartily wish, it was in the power of the Court, by a
conftiuttion that could be juflified, to remove it : bu'. I think it
>a not.
An argument grounded on inconveniences is,to be sure, in ma
ny instances, adnv.flible, and in some even neccffarv. But I ap
prehend that it is to be used with great caution, left a Court, un
der color of a conftru6lion of an a£t of the Lcgiflature, should, in
fact, encroach on the legislative authority, a thing of the utmoA
moment ro be avoided.
The argumentum ab inconvenient;, I think, applie's in no other in
stance but this—where two conllru&ions stand, as it were, in equi
libria* or nearly so ; in such a cafe undoubtedly a Court would
fuffer the scale to preponderate on that fide where the inconveni
ences, upon tl\p whole were feweft—becaufe by such means it is
mod probable they would retain the true sense of the i-egiflature.
TWy are-compelled to make a choice; and the preference is not
only juft'ifiable, but in some measure unavoidable.
But certainly there is no room for the application of that orin
ciple to the present cafe, where the two conltru&ions oppofeJ to
each other can bear no manner of comparison.
It has been argued, that it could*notbe prefumcd the Legisla
ture intended to make tf provision almost entirely nugatory* and
that therefore a conftiuftion which supposes such an intention
niuft be erroneous.
This is grounded upon a supposition, that when the Leg-.flaturc
palled the law m question, they knew how the principles of law
on this fubjeft stood before, and were of course awaie of all the
conTequenccs.
121
Wednesday, Au/fuft 3H
[Whole No. 259.]
In confiruing Legislative a£U, a method of arguing like this
has fomctimes been adopted, arid poifiblv in lome instances,
where the previous law was probably generally known, it may
be very proper. But surely an argument grounded on a suppo
sition that notoriously is not true, cannot be a good one. No
Legilldture that exists on earth doth in ta£t poflels extensive and
critical legal knowledge. It would be very extraoi d inajy if any
did. It is not neceflary that every Member fhouid be a Lawyer.
It is not neccUary that an,y fliould, The proportion of Members
who are Lawyers, to those who are not such is in general Imall.
They in no instance, I presume, form a majority. It is there
fore not only probable, but natural and scarcely avoidable, that
a Legislature in framing a new law, on an intricate legal fulje£t,
are not aware of all the conlequences resulting from it. Lven
the gieateft Lawyers, in the complex bufmefs of Legislation, may
not immediately fee all the confequencesincidcntto a new {yftcm
introduced. Accordingly, it has been oltcn remarked, that
scarcely any alteration of the common law, however minute, has
at any time been made, but it required one or more, frequently
many, subsequent amendments. The difficulty mn'ft of course
be much increaied, when an entire new lyftem was to be created,
and a vast variety of obje&s was to be embraced at once. But
the argument as to intention, is not complete, without iuopofmg,
not merely that the Legislature dfd not intend that the "Writ of
Error fhouid ilTue out of the Supreme Court liable to the dis
advantages mentioned, but that it did intend it fhouid itfjs out
of the Circuit Court, not withstanding the obje&ions that io ob
vionfly lie tb that method. And this, 1 think, no man will iup
pofe.
It has been further contended, that all that was abfolutcly es
sential in refpett to obtaining a Writ of Error was that the party
should fignify his wish to obtain it: and that the manner of
granting it was merely form, which should not be rigorously in
lifted upon, at theexpenceof real justice.
But this surely is much too loose ; the common law is simple
and energetic ; it delights in certainty ; its methods of proceeding
are all accurate, and not depending on irregularity or caprice.
There is scarcely any instance in which the forms it requires are
not a proper guard for substantial justice ; and therefore, when it
chalks out a method of redress, it infiftsthat that method fh&ii
be ftri&ly purfucd, in order that all its proceedings may be uni
form and perspicuous, and serve as a plain precedent to future
times.
It has been also urged, that by the cooftruttion given by the
council for the defendant in Error, the plaintiff would be de
feated of a remt dy to which he was entitled by the Constitution
and Laws of the United States.
The part of the Constitution affecting the fubjeft (art. 3, part of
feft. 2) runs thus :
" In all cases affe&ing other public ministers and
" consuls, and thofa in which a state {hall be a partv, th Supreme
" Court shall haveonginal jurifdiftion : in all the other cases be
" fore mentioned, the Supreme Court shall have appellate jurifdidinn
both as to /aw ar.d fad. with such exceptions and under fuck reguld
" tions as the Congrejs [hall make"
Tlie whole fubje&, therefore, is refened to Congress ; and
though they undoubtedly did intend to g' v e a compleat remedy,
yet, if it appears, upon a neccfTary conftruftion of their ast, that
tney have not in fact done so, it is not in the power of this Cuurt
to supply the defect.
There is only one instance which I have been able to find (if
that be one) wherein a Writ has ever iffuvd out cf a Court direfcU
ed to itfsif : but there the circumstances arc peculiar; and will
not apply to the present cafe.
The instance I allude to, is in a cafe where a judgment isg ven
in the petty bag in the chancery in England (v hose proceedings
are in such caf< s at common law) upon which uis fa:d a writ ot
Error lies returnable into the K hg's Beach ; the jurildiftioni n this
cafe is fotnething doubtful ; Coke and Blackjlone both assert it :
(4 Inf. 80. 3 Blackft. Com. 49) Bui Sir Francis Norths who was
I »rd keeper in the time of Charles II denied it ; lor upon his
being applied to for liberty to lake out such a writ, he refuf.d his
j confenr, and laid he would enjoin all such Writs of Error. (1 Veru. 131).
In what manner it ifTu s I have not been able to discover ; it is
fai_d none have issued since the time of Queen Elizabeth (3 Bjackft.
Com. 49.) But Writs of this nature, though they llfac < ur of the
Chancery, do not issue by order from the chancellor or keeper,
n r do I conceive he hns authority to Hop them in casts where
they are due of common right. There are various officers for va
rious purposes in the Cuui tof Chancery It is the particular du
ty of some of thofc officers to issue Writs, and I apprehend they
are bound to issue them at their peril. It isevident the content ot
the lord keeper in the above instance was not nrcefiary, lor tho
out of defertnee he was applied to for his consent, he did not
nerely refufe to give it, but said he uouldevjoin such a 11 rit of Ei
ror. That could not have been the cafe, ij his consent had been pre-•
vioufly nccejjary to obtain it.
But the clerk of a Chcuit Court has certainly no independent
authority to issue a Writ ; but can issue such only as the Law ex
pressly permits, or the Cour s order him.
I am exiremcly furry to be under the of voting for a
decision which may be attended with tl/e great inconveniences
po.ntcd out : but in my opinion, the Legislature only can reme
dy them— It is of infinite moment that Courts of Justice should
keep with M) their proper bounds and conflrue, not amend, a£ts of
Legislation. Ii England, where accurate ideas of law have long
obtained (at least in general) inconveniences have frequently been
experienced upon trial which weie not forcfeen. The Courts of
Justice in ihai country,formerly countenanced Fictions to get clear
of them ; and many such are now tolerated, in confeqaence of a
very long acqu efcence. But according to the improved idcasof
constitutional liberty at the present day, no court would dare to
introduce, or countenance new ones ; they would leave the re-,
dress to the proper authority, the Legislature. I trust in Ame
rica this plain and honest path will constantly be pursued. lu
no particular arethe liberties of the people more deeply intcr< fled
My opinion being, for the reasons I have given, that these pro
ceedingv are not brought before the Coui t by a legal Writ ol Er
ror ; it is unntceflaiy, and would therefore he improper, that I
should give any opinion upon thd 'second question, the dilcufiion
of which was only material if the firft bad been determined in the
affirmative.
[The\bove is the substance of Iredell's argument. As
he spoke chiefly from (hort notes, it cannot be expelled that the
very words (houl i be retained, though it is apprehended they
are nearly the fame, with the addition only of one or two obfej
vDti >ns, which were inadvertently omitted in the delivery, but
which do not materially change the general ground of the ar
gument.]
(The remainder in our next.)
*