PUBLISHED WEDNESDAYS AND SATURDAYS { JOHN FENNO, No. 69, HIGH-STREET, BETWEEN SECOND AND THIRD STREETS, PHILADELPHIA
[No. 52, of Vol. lII.] WEDNESDAY, AUGUST 17, 179 1 '
PHILADELPHIA, August 17,
SUPREME COURT OF the UNITED STATES
"Wednesday, August 3d
(concluded.)
JUDGE BLAIR said, that although it was true that the Writ
ot Error was a Writ of Right, upon which account Mr. Brad
lord had contended that its use was only to express the will of
the plaintiff in error, to have the judgment re-examined, and
that, therefore, it was not so material from what office it had is
sued, especially as the Judiciary Bill was silent as to that, yet
the writ was an indifpenfible requisite ; but a writ not issued in
the legal mode ftiould be considered as no writ. The question
then was, whether having ilfued from the Clerk's Office of the
Circuit Court, where the judgment fought to be redrefled was
rendered, it could be supported as valid ? He admitted, that the
dire6tion that it fhouli be returnable to the Supreme Court did not,
vi termini, necessarily imply that it ought to illuc ftom the
Clerk's Office of that Court; bccaufe whatever may be the popular
sense of the word * returnable,' writs which in England iirued
from the Chancery, were, in a legal sense, said to be returnable
into the King's Bench, or that Court where they were to be made
use of. But that there being no such general and fepara'.e repo
sitory of writs in America, he took it to be the general pra&ice
to issue writs from the fame Courts to which, in a ftritt sense,
they were to be returned, and never to issue them, as in the pre
ient iriHance, from the Clerk's Office of the fame Court whose
judgment was fought to be corre6ted. He admitted, that as the
law now stands, it would be attended, in some initances, with
great inconvenience and hardship, to make it necclfary for the
plaintiff in en or to apply for the writ at the feat of government
of the United States, from which the Circuit Court, where the
record remains, may be too remote, to permit him to lodge a
copy of the writ there within ten days from the time of render
ing the judgment ; because, if not so lodged, it will not operare
as a fuperfedeas to the judgment, and the recoverer may take out
execution. It is true, that the plaintiff in error, without so lodg
ing a copy, may go on with the Writ of Error, and if he ffiould
finally prevail, will be entitled to rtftftution ; but still, to be ex
posed in the mean time to an execution, would at any time be a
serious evil ; and, in the now exifttng combination of circumstan
ces in our country, peculiarly such. He thought, however, that
this evil, whatever might be its magnitude, required legislative
corre&ion, rather than that the Court ffiould, tor the fake of
avoiding it, eftablilh an unusual, and very irregular pia&ice. A
futut c -hi w may remove e very hardship, by allowing, instead of
ten days, luch a length of time, for depofiung a copy ot the Writ
of Error 111 the Clerk's Office, as may be pioportioned to its dis
tance from the feat of government. For these reasons he was
against the motion, for a rule to be made upon the defendants in
error, to rejoin.
JUDGE WILSON.
The determination of the gueftion in will be of im
poitance-not ouJy ro the parties immftfiaiciy i uterc Itcd,'"But aJf 0
to others : for it will piobably have an influence upon the de
termination of future cases of the fame or of a (imilar nature.
It is thciefore proper that, while I give my opinion, I (hould
aflign the reasons on which it is founded.
There are two modes of removing a decision from an inferior
to a superior jur ifdiftion. One is by appeal, which is merely
the art of ike party. But it is not contended that the proceedings
in th- present cause, are or can be removed by an appeal. It
they are before us at all, they mud have come before us by a Wnt
of Error This is admitted by the counsel for the plaintiff; and
on this supposition we are applied to for the exercise of juiildic
tion, by giving a rule on the defendant to plead to the alignment
ot errors. We are therefore led to the queftion —Is this such a
V/rii as willjuitify and authorise the court in exercising a revifion
ar} jurifdi&ion over the decision and proceedings of the Circuit
Court of the Diftri& of Rhode-Island ?
AWr t is deicribed, and very properly, to be a mandatory * lit
ter. A Wiit of errpi, as well as other Writs, must partake of this
mandatory quality. But how can a Court diieft a mandatory let
ter to itfelf ?
It was observed by the learned counsel for the plaintiff, that a
■writ of Error is a commiflion to revise proceedings. True. But
it is defcnbed as a commiflion directed to a fupeiior junfdi£tion.+
Bcfides, in considering this commiflion, we must view n«t only
the junfdi&ion to which it is directed, but likewifethe authority
from which it flows. Shall it flow trom an inferior to a superior
Court ? This courfc would be unnstural : it would be the stream
of authority inverted.
It was also mentioned by the learned counftl for the plaintiff
in error, that, in the ast of Congvels, it is not fpccijicd from
■what Com t the Writ of Erroi must issue. This is very ti ue. But
since it is not fpecified, we must form our opinion on general
principles and usages. Thele, as we havejuft now feel), will lead
us to the superior rather than to the injerior jurifdittion.
The 14th fc£tion of the ast of Congress, however, seems to put
the solution of the prefrnt beyond the poflibility of a doubt. By
that ft&ion the Courts of the United Stales t{ have power to issue
'• all Writs not specially provided for by statute, which may be
44 neceflary for the exercise of their refpe£tive jurifdi&ions, and
agreeable to the principles and usages of law." Now, this is
the Court which is to exercise jurifdiftlon—this is the Court to
ivhich application is made by the plaintiff himfelf, for the exer
cise of its jurifdittion in the present caufc. This, therefore, is
she Court, which, in the teims of the a£\, shall il have the power
11 to issue the Writ neceflary for the exercise of that jurifdiftion."
The Court from which the Writ of Error is to iffwe, is not fpe
cialiv pointed out by ftatnte. That Writ must therefore issue
44 agreeably to the principles and usages of l»w." Ofthofe prin
ciples and usages, we have already fecn the dire&ion and the
force. From ihele prcmifes, the inference seems to be conclu
de that the Writ of Error must issue from this Court.
An inconvenience was luggelltd and prell'ed with much strength
ar.d ingenuity by thccounfel tor the plaintiff ; that at a great dif
lance from the feat of government—in Georgia, for instance, or
Kentucky -it would be impoilible, afterthe judgment complain
ed of, to comply, in the limited time of ten days, with the con
ditions required by the ast for rendering the Writ of Error a fu
perfedeas to an execution. If this inconvenience (hould fuhfift
in all the force which has been fUted ; it nral be removed by
tnothei power. We ast in the judicial, not in the Itgijlative de
partment.
The inconvenience may perhaps be mitigated by a method
which 1 (hall suggest ; not, however, as a part of my opinion iri
the determination of the point before us. A Writ of Error may
kcar icftc and may be obtained before the " giving of the judg
nnt" in the Court below. This, in England, is the uiual course
i< preventing and fupcrfeding execution.}: Indeed this mode
Cms to be intimated by a claufc in the Writ itfelf. tc Wecom
'nand you, that, if judgment be given, then you fend the record
4 Snd procefs,"J| See.
tis true that the expence of a Writ of Error obtained in this
miner will be fupeifluous, if the party who apprehend a judg
nnt against him, fhail obtain one in his favor. This lupernous
e>ence, however, can be the occasion of no very great hardship.
I ate the expedient as calculated to mitigate the inconvenience
coplained of t but not as forming a ground ot my opinion in
th caufe.^
ly opinion i«, that the proceedings of the Circuit Court for
th diftriftof Rhode-Island are not jndicially before us; and that,
fothis reason, the motion of tht counfcl tor the plaintiff cannot
beuftained.
3 Bl - 2 73'
2 Bac. 187.
2 Bac. 199. March 140.
|3 81. app, 21. j l 11
—Would not the inconvenience here fitted ie removed wholly,
by ti Clerks of the fever al Circuit and Dijlritl Courts, J up flying em '
jelm with blank Wt its of Error, properly fettled and signed by the C lerk
of t). Supreme Court, and b\ having them ready for suitors, whevevei
wand. In P ennflvania, the Prothonotory ej the Supreme Court diflrt
bute.blank writs of certiorari and habeas corpus, through thefcvcal
couries of the slate, which are always at hand on the fhortefl notice,
whe\reauihte for the removal of a cause : so that if oppression or injus
tice t attempted by hurryiny on a cause in the lower Courts, a removal
by th oppojite party afords an opportunity of obtaining more complete
and)erfefl jufiice.
JUDGE LUSHING.
Tie writ offered to'the Court at present, by the counsel for the
*>laitiff, does not appear to me to be such a writ as will bring
the rocecdings of ibe Circuit Court of Rhnde-Ifland, properly
befoe this Court. By the ast of Congress, it is true, that • Wnt
of Eror m» iflue either from the Circuit Court, or trom this.
But ly necefTary implication, it feemi, that when it is for the pur
poferf removing a cause from a Circuit, to this Court, the autiori
ty ftould be derived immediately from this court. I cannot be
lievethat Congress designed, a Circuit Court (hould have power
to renove its own proceedings to this Court; but that the authori
ty foi this end, (hould flow from the Court that was to exercise the
contiouling and reviflng power. If such, then, be the meaning of
the National Legislature, it is not our province to alter or amend
their acts, but to ground our opinions upon them. If inconveni
ences (hould arise, in carrying their laws into effett, with them
lies the power of correcting the inconveniences, and not with us.
As the writ before us, therefore, is not from this, but from the
Circuit Court of Rhode-Island, I cannot think, that upon its au
thority, we can proceed to rtvife the judgment of that Court.
aU£E=jr*TTrw r—-
amgned, are fully explanatory of my
opinion, it were needless to repeat thera. I need only, there,
fore, suggest my concurrence with my brethren
" The Court, therefore, refufe to grant the rule moved for yes
«« terday in this cause, being itnanimoujly cj opinion, that Witts oj
14 Error, to remove cause* to this Courtfrota inj'erior§nnet* t can rcgu
il larly ijjue only f rom the Clerk's Office oj this Court."
EXTRACTS.—On EDUCATION,
ONE of the fir ft laws of Maflaclmfetts provid
ed, That the SeleiSmen shall have a vigi
lant eye over parents, that they lhall duly endea
vor, liy thetnl'elves, or others, to iiiltru<fl their
children in learning; and that if, after warning
given by the Selectmen, any parent shall be neg
ligent, he shall be fined." Some think this Jaw
to have been rather arbitvary, but the reason the
law-makers thcmfelves aiTign will be f'atisfaJtory.
They r ay, " left the children should grow bar
barous, rude and stubborn, and lb prove pests,
ttijleadof biejpngj to their country."
The learned and patriotic Dr. Price, in a late
difcoufe, fays, " Our firft concern as lovers of
our cointry, must be to enlighten it. Why are
the tiaions of the world so patient under defpot
il'm ?b it not bpcaufe they are kept in darkness
and w:nt of knowledge ?—enlighten them, and
you wil elevate them."
Shoild the feniinaries of learning be neglect
ed by lie Commonwealth, there can be no way
to fupprt them, but by enhancing the price ot
educaton. The rich men will then give their
childra an education, « hile the people in the
middlevvalk of life, and the poor, will be denied
the priilege of learning. The people will then
be oblied to hold learning in contempt, to ex
clude . from their public afiemblies; or, the
powersif government, and the offices will be held
by the ich in exclusion of the others. The firll
alternate leads toaflate of barbarism, the other
leads to riltocracy and despotism.
Tlieres in men a natural pride, and a natural
envy, lie wealthy are apt to hold the poor in
contemp and the poor are apt to envy the opu
lence ofne great. These tempers, however re
prehenfile they are, have their use in iociety ;
the firlt lads the wealthy to support govern
ment, th<latter induces a spirit of equality,which
prevcntshat government from rising to a itate
of defpofni.
The hairs and education of the rich lead to
ariftocrar, and if they can have a monopoly of
the learing of tVie country, there will be an end
of dcmo'acy ; the equality which is uow the
125
Hks°
[Whole No. 240.]
glory of our country, will never more be seen,
and rlie calamity of America will blast the hopes
of the patriotic pare of the European world.
Paiems are led by their fondnefs for their pos
terity, to try to give ihem an education: hue
they have but little imerell in the business in
comparison with what society has—Parents are
soon removed from their tender connexion with
their children, but society remains forever, and
mull be happy or miserable, in proportion as
knowledge and information are poll'efled by it.
Reasons for ejiablijbing public Schools, reported by
the School Committee oj the Tozu/t of
Augujli, 1789.
" jit. T TaEFUL knowledge generally diffiifr-T
among the people, is the furti'i
of fecuung the rights of man, of proim
public prol'peiity, and perpetuating aie i
of a countiy.
" ad. As civil community is a kind or
tenancy, in respeCt to the gifts and audi
individual members thereof, it leems noi s .
per, that the dilburfement* necefiaiy to tj
those individuals for ufefulnefs, should be i;.
from common funds.
" 3<l- Our lives and properties,in a free ftatc,
are so much in the power of our feliow-citiznis,
and the reciprocal advantages of' daily iiuet
courfe are so much dependant on the inl'ofiliati
on and integrity of our neighbours, that no wile
man can feel himfelf indiffei ent to the progrefi
of ufeful learning, civilization, ami the preler
vation of morals, in the community wheiehere-
fides
" 4th. The raoft reasonable objedt of getting
wealth after our own wants are l'upplieri, i» to
benefit thole who need it ; and it may with great
propriety be demanded, in what way «au iliofe
whole wealth is redundant, benefit their neigh
bours more certainly and permanently, than by
furnilhing to their children the means of quali
fying them to become good and ufeful citizens,
and of acquiring an honefl livelihood ?
" sth. In Schools established by public autho
rity, and whole teachers are paid by the public,
there will l>e reason to hope for a more faithful
and impartial discharge of the duties of inftrue
tion, as well as of dicipline among the scholars,
than can be expected when the matters are de
pendant on individuals for their fupporr.
PETERSBURG H, March 29
ON the 20th inft. we enjoyed a superb fpetfa
cle here ; the regiment of horse guards de
filed along the Imperial Castle, bearing to the
fortrefs the trophies of Ifmail, composed ofnear
ly 500 horsetails, commanders (laffs, maces, stan
dards and colours.—lt is said, that the better to
perpetuate the remembrance of this important
conquest, nnd the other advantages gained by
Prince Potemkin over the enemies of the Chril
lians ; and in opposition to the Alcoran and
Sword of Mahomet, our august Sovereign intends
to present Prince Potemkin with a bible richly
bound, and set with brilliants, together with a
sabre of inimenfe value.
PARIS, June j6.
Abjlratt of the late], f Proceedings of the National
A§cmbly t June jt/>.
The Aflembly referred to the committee of
enquiry a letter, by which the directory of Gi
ronde, gives notice of the fermentation excited
at Bordeaux, by the establishment of a monarchi
cal club, and of the manoeuvres of the agents of
the club, which obliged the directory to put a
stop to their meeting.
June 8. Decreed—That persons in the public
service fliall enjoy the rights of atfiive citizens,
in the places where their duty calls them, iho
they may not have resided there the year requir
ed in common cases.
Articles decreed to secure the independence of th•
Legislative Authokitt.
I. Tliofe concerned in attempts to preventthtf
re-\mion, or effect the diflblution of a primary
or electing aflembly, fliall fuffer death.
2. If troops of the line surround the place of
fitting of the aforefaid aflemblies. or procure ad
mittance into the aflembly, without being au
thorised or required by the afleinbly, the minis
ter or commander who ihall liav# figncd the or-