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a mandate requiring the presiding judge of the inferior tribunal to certify the record for re-examination by the Superior Court. That was done in the very case, we are considering, Hunter v. Martin, in the Supreme Court of Appeals in Virginia, (4 Munford, p. 1) and on the reversal of the judgment of the Virginia Court, by the Supreme Court of the United States, a mandate was again issued, in the usual form in which all mandates from time immemorial, have been issued from the Court of King's Bench in England. This positive "command" issued by the Supreme Court in this case (4 Munf. 2.) to the Supreme Court of Virginia, to enter judgment for the appellant, shews conclusively, that the State Courts are to be regarded not as independent Courts, but as inferior tribunals. This, also, was the idea of Congress, when it passed the boundary of its powers, and conferred a superiority on the Supreme Court which the Constitution did not give. The twenty-fifth section of the judiciary act of 1789, provides, “that a final judgment in the highest Court of law and equity in a State, may be examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error in the same manner and under the same regulations, and the writ shall have the same effect as if the judgment complained of had been rendered in a Circuit Court,” &c. which regulations by the twenty-second section of the same act are, inter alia, that " to the writ of error shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record,” &c. Judge Johnson, in delivering his opinion in this case, must have had considerable doubts in his mind, whether Congress could constitutionally establish the State Courts as inferior or dependent tribunals, and he must have felt the weight of our objection, that an appeal cannot lie from a State Court to a Federal, without making the State judiciary dependent upon the Federal, for he thus apologizes for the judiciary act:
“In this act I can see nothing which amounts to an assertion of the inferiority or dependence of the State tribunals. The presiding judge of the State Court is himself authorized to issue the writ of error, if he will, and thus give jurisdiction to the Supreme Court: and if he thinks proper to decline it, no compulsory process is provided by law to oblige him. The party, who imagines himself aggrieved, is then at liberty to apply to a judge of the United States, who issues the writ of error, which (whatever the form) is, in substance, no more than a mode of compelling the opposite party to appear before this Court, and maintain the legality of his judgment, obtained before the State tribunal. An exemplification of the record is the common property of every one, who chooses to apply and pay for it, and thus the case and the parties are brought before us; and so far is the Court itself from being brought
under the revising power of this Court, that nothing but the case, as presented by the record and pleadings of the parties, is considered, and the opinions of the Court are never resorted to, unless for the purpose of assisting this Court in forming their opinions.”—1 Wheat. 379.
With the utmost deference to the learned judge, the mode proposed by him, to draw to his power of revisal, a case which has been adjudicated elsewhere, is as novel as it is clumsy. It certainly ill comports with the judicial supremacy, implied in the term “appellate jurisdiction," that a Court which claims so high an exercise of power, should be compelled to approach indirectly, or, as it were, by stealth, a case which it cannot reach honestly and fairly, and by the inode usually practised in all Courts of justice in the civilized world. If the Constitution contemplated to give the appellate jurisdiction contended for, Congress ought to arm the supreme tribunal with all the powers of compulsive and restrictive process, warranted by the principles and usages of law. We think there is considerable force in what was said at the bar in Cohens v. Virginia.
“The Court, exercising appellate jurisdiction, must not only have jurisdiction over such a cause and such parties, but it must have jurisdiction over the tribunal before which the cause has been depending. Judicial power includes power to decide and power to enforce the decision. This Court has rather disclaimed power to enforce its mandate to the Supr'me Court of a State. If you have not power to compel State tribunals to obey your decisions, you have no appellate jurisdiction in cases depending before them. Suppose it should be found necessary to direct a new trial, in a cause removed from a State Court, and that the State Court refuses to obey your mandate, where shall the new trial be had? If you have appellate jurisdiction in a case decided by a State Court, you must have power to make your decisions a part of the record of a State Court. The Constitution provides that “full faith and credit shall be given in each State to the judicial proceedings of every other State." A plaintiff recovers, in the Courts of Virginia, judgment for a sum of money, you reverse the judgment; but the State Court does not record your decision: the plaintiff obtains a copy of the record of the judicial proceedings of the State, and presents them as evidence before the Court of another State; he must recover, notwithstanding your judgment, which has not been made a part of that record, to which full faith and credit is to be given.”-6 Wheat. 317.
A writ of error, as the judge says, is not merely a simple “mode of compelling the opposite party to appear before the Court, and maintain the legality of his judgment.” It is a mandate addressed to an inferior Court. It is not a proceeding, as bis honor conceives, which in form means one thing, and in substance another. From the earliest periods of English juris
prudence, it has been regarded as a mandate, and a non-compliance with its requisitions would be there followed by compulsory process. Every Court of Appeals in the world, which proceeds by writ of error, is invested with this power; and if there be not in the Supreme Court power to control the State tribunals where they are refractory, there can be no appellate jurisdiction. Suppose that the President of the Court of Appeals in Virginia bad refused to certify the transcript, (as the Court afterwards regretted he had not done,) what could the United States' Court have done? Where was its power? Could the Chief Justice have issued an attachment against the Virginia judges for a contempt? Even Congress did not venture to confer on the Supreme Court a power to issue a mandamus or a prohibition to a State Court. By the 13th section of the judiciary act, a mandamus is confined “to the Courts appointed, or persons holding office under the authority of the United States.' The Court, it seems, declined giving an opinion on the question "whether it had authority to issue a writ of mandamus to the Court of Appeals, to enforce the former judgment," as it did not conceive it necessarily involved in the decision. This would imply a doubt, where there ought to have been none. Congress, also, must have been conscious when they were passing the judiciary act, that they were treading on forbidden ground; for it appears that in causes removed before the Supreme Court by writ of error, they did not authorize that Court to send "a special mandate” to the State Court, to award execution upon its judgment of reversal, as was provided under the 24th section of the judiciary act, in cases brought up from the Circuit Courts of the United States; but the act empowers the Supreme Court, in case of the reversal of the decision of the State Courts, to execute its own judgment. His honor, Judge Johnson, thinks that this distinction between the two modes of proceeding, vindicates Congress from all intention to violate the independence of the State judiciaries. We would rather say, that the true motive was, an apprehension that they were exercising a doubtful jurisdiction, and that it would be unwise, under such circumstances, to authorize such a measure as compulsory process against the State judges. As to the independence of the State courts that was violated in the act of making them inferior to the Supreme Court. The independence of the State judiciaries is the main pillar of State sovereignty. Remove it and the government must ultimately arrive at consolidation.
A writ of error then, is, technically and strictly, a mandate; and it is in vain to say, that the Court is not limited to the manVOL. VI.-NO. 12.
date, as a means of getting at the record. It is not a proceeding, by writ of error, according to the usages of law avd the practice of the Courts, if it be not addressed to the justices of the inferior Court, and returned by the presiding or chief judge. It is not for the Court to say, that" by a rule of that Court, the return of a copy of a record of the proper Court, under the sealofthat Court, annexed to the writ of error, is declared to be a sufficient compliance with the mandate of the writ.” The Court, according to the 17th section of the judiciary act, “can make no rules which are repuguant to the laws of the United States." Ву these laws a writ of error must be accompanied by “an authenticated transcript of the record.” A record is not authenticated, according to the act of Congress passed for that purpose, which is not “accompanied by the certificate of the presiding judge, that the attestation of the clerk is in due form.” The judge, however, says, “an exemplification of the record is the property of any one who chooses to apply and pay for it.” This is true in general, but we are inclined to think it doubtful, whether, if a judge had a writ of error addressed to him, he might not forbid a copy of the record being furnished by the clerk, which was asked for the purpose of an appeal. But suppose the Legislature, in order to protect its judiciary, were to pass an act forbidding copies, how then could the Court get at the record ?
The Supreme Court cannot claim the appellate jurisdiction upon any sound rules of construction. Were the judicial power vested in one Supreme Court of Appeals, and power given to it in certain cases, the implication would be clear that the State tribunals were to be the Courts of first instance. There was a clause of this kind in the articles of Confederation. The old Congress had no general judicial power, but it was vested with a power “to establish courts for revising and determining, finally, appeals in all cases of captures.” As Congress had no power to constitute tribunals for prize causes, (though it had a power to appoint "courts for the trial of piracies and felonies on the high seas,') the appeal here contemplated, could be from none other than the State courts of admiralty jurisdiction, these being the only courts in existence, which had cognizance of " cases of captures."
As we have alluded to the supremacy of the Federal judicial power under the Confederation, in cases of captures,” it is here proper to notice an argument, which the Court, in this case, as well as in Cohens v. Virgina, has predicated on this circumstance, In reply to an assertion at the bar, that it did not comport with the genius and spirit of the Coustitution, that the
State courts should be inferior to the Federal, the Court adverts to this provision in the old charter, to shew that a control in the Federal courts, is not “a novelty in our judicial institutions," and that such a supremacy was given at a time “ when there was infinitely more deference to State rights and State jealousies," than at the time of the adoption of the new Constitution. We must here differ from the Court. At no period in our bistory, was there a greater jealousy in surrendering power, than when the Constitution was proposed. Very different was the situation of the public mind when the plan of the Confederation was first promulgated. There then existed a necessity for a close and perpetual alliance. A formidable enemy was to be encountered. The physical energies of the country could only be wielded by a confederation of the States. There was nothing forbidding in the aspect of such an alliance amongst States pressed by a common danger. On the contrary, there was every inducement for the States to enter into a closer friendship and union, and the encouragement was the greater, from the security afforded by the compact itself, that no new powers were to be confided to the common council, unless with the consent of every State Legislature. There is no parallel between the two cases. As long as the States held the purse, the resolutions and ordinances of the Congress, practically, were nothing more than recommendations. There was little or no apprehension that, in entering into union, the States put at hazard their reserved rights of sovereignty. It required no great sagacity to foresee that the sovereignty they were about to confer on Congress, was not to endure beyond the conveni. ence or pleasure of the States. The Confederation had not been long in existence, before each State, practically, though not constitutionally, could interpose its veto to any requisition, that it did not choose to comply with; a characteristic this, which has distinguished almost every Confederacy in modern times. The consciousness that a governinent which could not operate upon persons and property, could never become fornijdable to State sovereignty, no doubt caused the States, to be less scrupulous in conferring a controlling judicial power in all prize causes. This appellate admiralty jurisdiction was, however, in consonance with the general character of a federative compact, whose peculiarity was, that it was to operate on States, or State authorities, and not citizens. The reversal of a judgment in a State Court, was like an ordinance of the Congress. It was to a State Court a requisition and no more. This power was incidental to the sole and exclusive power which Congress had to make rules for captures on land or water ; and that