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[No. 3.

Vol. II.]

MURDOCK v. City of MEMPH19.

consenting to the change. No doubt there were those who, believing that the Constitution gave no right to the federal judiciary to go beyond the line marked by the omitted clause, thought its presence or absence immaterial ; and in a revision of the statute it was wise to leave it out, because its presence implied that such a power was within the competency of Congress to bestow. There were also, no doubt, those who believed that the section standing without that clause did not confer the power which it prohibited, and that it was, therefore, better omitted. It may also have been within the thought of a few that all that is now claimed would follow the repeal of the clause. But if Congress, or the framers of the bill, had a clear purpose to enact affirmatively that the court should consider the class of errors which that clause forbids, nothing hindered that they should say so in positive terms; and in reversing the policy of the government from its foundation in one of the most important subjects on which that body could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention.

There is, therefore, no sufficient reason for holding that Congress, by repealing or omitting this restrictive clause, intended to enact affirmatively the thing which that clause had prohibited.

We are thus brought to the examination of the section as it was passed by the Congress of 1867, and as it now stands, as part of the Revised Statutes of the United States.

Before we proceed to any criticism of the language of the section, it may be as well to revert for a moment to the constitutional provisions which are supposed to, and which do, bear upon the subject. The second section of the third article already adverted to declares that “the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties made or which shall be made, under their authority.”

Waiving for the present the question whether the power thus conferred extends to all questions, in all cases, where only one of the questions involved arises under the Constitution or laws of the United States, we find that this judicial power is by the Constitution vested in one supreme court and in such inferior courts as Congress may establish. Of these courts the Constitution defines the jurisdiction of none but the supreme court. Of that court it is said, after giving it a very limited original jurisdiction, that " in all other cases before mentioned, the supreme court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress may prescribe.”

This latter clause has been the subject of construction in this court many times, and the uniform and established doctrine is, that Congress having by the act of 1789 defined and regulated this jurisdiction in certain classes of cases, this affirmative expression of the will of that body is to be taken as excepting all other cases to which the judicial power of the United States extends, than those enumerated. Wiscart v. Dauchy, 3 Dallas, 321 ; Durousseau v. United States, 6 Cranch, 307; The Lucy, 6 Wallace, 318; Ex parte McArdle, 7 Wallace, 506.

It is also to be remembered that the exercise of judicial power over cases arising under the Constitution, laws, and treaties of the United Vol. II.)


(No. 3.

States may be original as well as appellate, and may be conferred by Congress on other courts than the supreme court, as it has done in several classes of cases which will be hereafter referred to. We are under no necessity, then, of supposing that Congress, in the section we are considering, intended to confer on the supreme court the whole power which, by the Constitution, it was competent for Congress to confer in the class of cases embraced in that section.

Omitting for the moment that part of the section which characterizes the questions necessary to the jurisdiction conferred, the enactment is, that a final judgment or decree in any suit in the highest court of a state in which a decision in the suit can be had (when one of these questions is decided) may be reëxamined, 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 or decree complained of had been passed or rendered in a court of the United States.

It is strenuously maintained that as the office of a writ of error at the common law, and as it is used in relation to the inferior courts of the United States when issued from this court, is to remove the whole case to this court for revision upon its merits, or at least upon all the errors found in the record of the case so removed, and as this statute enacts that these cases shall be reëxamined in the same manner, and under the same regulations, and the writ shall have the same effect as in those cases, therefore all the errors found in a record so removed from a state court must be reviewed so far as they are essential to a correct final judgment on the whole case.

The proposition as thus stated has great force, and is entitled to our most careful consideration. If the invariable effect of a writ of error to a circuit court of the United States is to require of this court to examine and pass upon all the errors of the inferior court, and if reëxamination of the judgment of the court in the same manner and under the same regulations means that in the reëxamination everything is to be considered which could be considered in a writ to the circuit court, and nothing else, then the inference which is drawn from these premises would seem to be correct.

But let us consider this.

There are two principal methods known to English jurisprudence, and to the jurisprudence of the federal courts, by which cases may be removed from an inferior to an appellate court for review. These are the writ of error and the appeal. There may be, and there are, other exceptional modes, such as the writ of certiorari at common law, and a certificate of division of opinion under the acts of Congress. The appeal, which is the only mode by which a decree in chancery or in admiralty can be brought from an inferior federal court to this court, does bring up the whole case for reëxamination on all the merits, whether of law or fact, and for consideration on these, as though no decree had ever been rendered. The writ of error is used to bring up for review all other cases, and when thus brought here the cases are not open for reëxamination on their whole merits, but every controverted question of fact is excluded from consideration, and only such errors as this court can see that the inferior court Vol. II.)

MURDOCK v. City of Memphis.

(No. 3.

committed, and not all of these, can be the subject of this court's corrective power.

Now, one of the first things apparent on the face of this statute is that decrees in chancery, and in admiralty also, if a state court shall entertain jurisdiction of a case essentially of admiralty cognizance, are to be removed into this court from the state courts by this writ of error as well as judgments at law. And such has been the unquestioned practice under the act of 1789 from its passage until now. But this writ cannot bring a decree in chancery or admiralty from the circuit court to this court for review. It has no such effect, and we dismiss every day cases brought here by writ of error to a circuit court, because they can only be brought here by appeal, and the writ of error does not extend to them. The San Pedro, 2 Wheat. 132; McCollom v. Eager, 2 How. 61; Minor v. Tillot8on, Ib. 392.

Unless, therefore, we have been wholly wrong for eighty years under the act of 1789, and unless we are prepared to exclude chancery cases decided in the state courts from the effect of this writ, it cannot, literally, have the same effect as in cases from a court of the United States ; and if we could hold that the writ would have the same effect in removing the case, which is probably all that is meant, still the case when removed cannot literally be examined in the same manner, if by manner is meant the principle on which the judgment of the court must rest. For chancery cases, when brought here from the circuit courts, are brought for a trial de novo on all the evidence and pleadings in the case.

It is, therefore, too obvious to need comment, that this statute was designed to bring equity suits to this court from the state courts by writ of error, as well as law cases, and that it was not intended that they should be reëxamined in the same manner as if brought here from a court of the United States, in the sense of the proposition we are considering.

But passing from this consideration, what has been the manner in which this court reëxamines the judgments of the circuit courts on writs of error, as touching the errors into which it will look for reversal ? For it is this manner which is supposed to require an examination of all errors, whether of federal law or otherwise under this statute. It requires but slight examination of the reports of the decisions or familiarity with the practice of this court, to know that it does not examine into or decide all the errors, or matter assigned for error, of the most of the cases before them. Many of these are found to be immaterial, the case being reversed or affirmed on some important point which requires of itself a judgment without regard to other matters. There are errors also which may be sufficiently manifest of which the appellate court has no jurisdiction, as in regard to a motion for a new trial, or to quash an indictment, or for a continuance, or amendment of pleadings, or some other matter which, however important to the merits of the case, is within the exclusive discretion of the inferior court.

Nor does it seem to us that the phrase " in the same manner and under the same regulations, and the writ shall have the same effect,” is intended to furnish the rule by which the court shall be guided in the considerations which should enter into the judgment that it shall render. That the writ of error shall have the same effect as if directed to a circuit

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court can mean no more than that it shall transfer the case to the supreme court, and with it the record of the proceedings in the court below. This is the effect of the writ and its function and purpose. When the court comes to consider the case, it may be limited by the nature of the writ; but what it shall review, and what it shall not, must depend upon the jurisdietion of the court in that class of cases as fixed by the law governing that jurisdiction.

So the regulations here spoken of are manifestly the rules under which the writ is issued, served, and returned; the notice to be given to the adverse party, and time fixed for appearance, argument, &c. Another important effect of the writ and of the regulations governing it is that when accompanied by a proper bond, given and approved within the prescribed time, it operates as a supersedeas to further proceedings in the inferior court. The word manner also much more appropriately expresses the general mode of proceeding with the case, after the writ has been allowed, the means by which the exigency of the writ is enforced, — as by rule on the clerk, or mandamus to the court, — and the progress of the case in the appellate court; as filing the record, docketing the case, time of hearing, order of the argument, and such other matters as are merely incident to final decision by the court. In short, the whole phrase is one eminently appropriate to the expression of the idea that these cases, though coming from state instead of federal tribunals, shall be conducted in their progress through the court, in the matter of the general course of procedure, by the same rules of practice that prevail in cases brought under writs of error to the courts of the United States.

This is a different thing, however, from laying down rules of decision, or enacting the fundamental principles on which the court must decide this class of cases. It differs widely from an attempt to say that the court in coming to a judgment must consider this matter and disregard that. It is by no means the language in which a legislative body would undertake to establish the principles on which a court of last resort must form its judgment.

There is an instance of the use of very similar language by Congress in reference to the removal of causes into this court for review, which has uniformly received the construction which we now place upon this.

By the judiciary act of 1789, there was no appeal, in the judicial sense of that word, to this court in any case. Decrees in suits in equity and admiralty were brought up by writ of error only, until the act of 1803; and as this writ could not bring up a case to be tried on its controverted questions of fact, the 19th section of the act of 1789 required the inferior courts to make a finding of facts which should be accepted as true by the appellate court. But by the act of March 3, 1803, 2 U. S. Statutes, 244, these cases were to be brought to this court by appeal, and to give this appeal full effect the 19th section of the act of 1789 was repealed, and upon such appeal the court below was directed to send to this court all the pleadings, depositions, testimony, and proceedings. In this manner the court obtained that full possession and control of the case which the nature of an appeal implies. And it is worthy of observation that Congress did not rely upon the mere legal operation of the word appeal to effect this, but provided in express terms the means necessary to insure this object.

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Vol. II.]



No. 3.

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But to avoid the necessity of many words as to the mode in which the case should be brought to this court and conducted when here, it was enacted “that such appeals shall be subject to the same rules, regulations, and restrictions as are prescribed in law in case of writs of error.” Here is language quite as strong as that we have had under consideration, and strikingly similar both in its purport and in the purpose to be served by it. Yet no one ever supposed that when the court came to consider the judgment which it should render on such an appeal it was to be governed by the principles applicable to writs of error at common law. It was never thought for a moment, notwithstanding the use of the word “restrictions,” that the court was limited to questions of law apparent on the record ; but the uniform course has been to consider it as a case to be tried de novo on all the considerations of law and of fact applicable to it. There are many decisions of this court showing that these words have been held to apply alone to the course of procedure, to matters of mere practice, and not at all affording a rule for decision of the case on its merits in the conference room. Villabolos v. United States, 6 How. 81 ; Castro v. United States, 3 Wall. 46; Mussina v. Cavasos, 6 Wall. 355.

There is, therefore, nothing in the language of the act, as far as we have criticised it, which in express terms defines the extent of the reëxamination which this court shall give to such cases.

But we have not yet considered the most important part of the statute, namely, that which declares that it is only upon the existence of certain questions in the case that this court can entertain jurisdiction at all. Nor is the mere existence of such a question in the case sufficient to give jurisdiction, the question must have been decided in the state court. Nor is it sufficient that such a question was raised and was decided. It must have been decided in a certain way, that is, against the right set up under the Constitution, laws, treaties, or authority of the United States. The federal question may have been erroneously decided. It may be quite apparent to this court that a wrong construction has been given to the federal law; but if the right claimed under it by plaintiff in error has been conceded to him, this court cannot entertain jurisdiction of the case, 80 very careful is the statute, both of 1789 and of 1867, to narrow, to limit, and define the jurisdiction which this court exercises over the judgments of the state courts. Is it consistent with this extreme caution to suppose that Congress intended, when those cases came here, that this court should not only examine those questions, but all others found in the record ? — questions of common law, of state statutes, of controverted facts, and conflicting evidence. Or is it the more reasonable inference that Congress intended that the case should be brought here that those questions might be decided, and finally decided, by the court established by the Constitution of the Union, and the court which has always been supposed to be not only the most appropriate but the only proper tribunal for their final decision ? No such reason nor any necessity exists for the decision by this court of other questions in those cases. The jurisdiction has been exercised for nearly a century without serious inconvenience to the due administration of justice. The state courts are the appropriate tribunals, as this court has repeatedly held, for the decision of questions

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