Newspaper Page Text
vit of Mr. tuiglr; forty OohM know St in
no otbftr way. VVtr.it would htfe be4“
t ho legal effect of tM
court mi such a writ of
91 tffj*
ami- «uch
fraught with the conrequenYul xAihfo moot
iilteiidttiii
{/ of a JudgO wWdoub**
lor » preh.mmtry wrguiMM t
reiurti f Tho M** *• obvJobit m -moyi, his doubt*. «
MSt^l'fn ‘
Brown against ABi^laotl; the font of «r?
ror was issued by «»« °f tk * of
. thii court wit hint the teal or Hat of the
Circuit Court. The record was return*
ed and tiro case argued on both side* with
out objection, or, *o far as appears by the
report, the point not being noticed at the
bar or from the bench. McCulloch vs.
Maryland, referred to by the count was
on a case stated for the opiniou of this
court, “ all errors being mutually releas
ed."—4 Wh. 819, 20, and as appears in
the record. In the United States vt.
.Simms 1 Cr. 252, this' court entertained
jurisdiction of a case brought before it by
a writ ot error to fertnve the record of
an indictment in the Circuit Court.of ibis
District and affirmed the judgment after
argument on both sides. In the United
State* **. Moor, 3 Cr. 159,172', they de
cided that they had no jurisdiction. On
being reminded of the case of Simms,
source* of information for the means ot
forming a correct opinion'. In eyparte
Crane reported in 4 Peters 190. 200,
without even n passing notice of ilk' oc
currence, such call was made, net sup
ported by the court and domed in bt lug
renewed ; and repeated in Nets YttWi and'
New Jersey, 1 Peters, 286, wttlj as little
effect, and iiuiiced it) the report very in
correctly, both cases involving principles
and questions as important as evfer arose
in this court, none of which were believed
to have been settled. When in ibis case,
without argument or notice of this point,
we wore called on to exercise our highest
jurisdiction over the highest court bf a
State of j life Union, J was forced to sur
render ihv judgment bn filth, or assert
publicly tny judicial rights, regardless
of/censure when t-.cting in colucious rec
titude; anxious, to elicit by the. did of the
counsel, the light, the truth, and the law
the Chief Justice remarked, the question Of the case, and sincerely desirous tint the
was matin in that rate 1 , us to tbfjurisdic- judgment of the court in this greet case
It passed tub uientio, and (lie court should bo rendered only after every point
was considered, i; was my duty to perse
vere, till a’direction was given that coun-
ejudgmant
erroneous 4™—^
mniion td dw fotis* this .ciruyp f^smpiiM of
Wfodfotiott, the only qu«i(iba
is. WMilHl it come* “priraa „
in the 25tn iteciiutvof the judiciary act
Th;a must be decided on an inspection ot
thowhale record, and if it doe* appear
that it presents any of the cases tbeieiii
provided for, the motion must be refuted.
When the record comes to be judicial
examined, this effort may be of ltie opin
ion that though quest ion did mot nris
which brings their power hito action, >R
it did not come up in a shape, or is he
so sjated'” In the record of the Court of
Appeals, that this court cun tiffuin .or re
verse it for the specific ctiuse assigned.
If the qucstion appr.-Hrs in o»y part of thr
record, it it enough in my opiffion for (0-
ritdiclion. The manner in which it ap
pears, seems to me only ip be examiner
after jurisdiction is entertained/ It an-
trears by the record four the plaintiff renti
in evidence on the trial of I lie case, a pit
tent from Kentucky, issued on •vairiinh
eittcrcd'in 1784, and the patent is set Ion It
verbatim. As thn State of Keiititrky
bad no existence in 1784-85, when lime
warrants were entered and surveyed, we
cannot b>* judicially ignorant that these
acts, ar well tfs the issuing of tint war
nnJed to the said Court ofAppeals, cinsidcration, directly 6r anil
1th direction in enter iudpnent for the h crimja>l MB’; ' ‘ * ‘
appfettunt, Philip Sprtin. A mandate “tub
(* Court
tion.
does not consider itself bound, by that
case, 172, and It was not mentioned in the
opinion of (he court,—In DarOpeau vs.
V. States, they observe under those laws,
this eoOK bat taken jurisdiction of a cause
brought by a writ of error from Tennes
see, -It la tree the question was not
moved, end consequently still remains
opes —6 Cr. 317. Thus the second case
of Hunter vs. Mwtin, and the case* of
Brownand McCulloch vs. Maryland, are ^ „ M ^ ..._ w w _ , . _ _.. ¥ I
disposed of ha precedents of a return to j been left to a single Judge to search .fur j the at jicfe the viohtllon ot' wittok t* wl- it* mandate h\ # writ qjf (srref; of its
a writ ot error issued by thi* court under > the laws, the rules, fob practice and pre-
*** seal and the twenty-second am) twenty-1 cedent* of the court for a guide. A. re-
fifth - J ‘ • • . .. '
They are no evidence oft fcrenco to these sources ol knowledge,
,n T legitimated, sanctioned or even no-; made under (ho direction of the court,
•nead practice. Mill less of Isai.’. It it ut-; would have -made their final decision, at
terfy useless to examine tfcfe' question lea*t not less satisfactory. Left With no
whether a Bute court nbouptlNt obey an - L
sel, in the courte oftheir argument, should, >»nt*, and the tit Id foomlod on tliwn, ivtoe
embrace the question ul whetlier there | under the laws of ViTgiiiUJ A'tftlinCffol-
wos a recurd judicially before us. It was j pact between the t«vo States 111 a pint Of
my desire that this question sitpuld , have 1 the Constitution o’f Kentucky, we cannot
been considered first and distinctly, accor- |he ignorant of its existence, and that tt
ding to what seemed tp be the -settled - relates to lands held in Kentucky «\MM
course of the court us laid down h> 1 Cr. fthe law* of Virginia5 Peicis, | cwmMon law. Its whole history presents
91, 3 Cr. "172,,5 Cr. _221, 9 ' tyli, 8l<j, jTtO. The court slated the sevcttth st-tlcw i tva precedent, ofastqtetttM-Com t rormc-
ld Wh. 20. It .would mil then Jiayo i fit their opinion, and oliscnc, " Thb ts tmg foh disnbedfonre «f so inferior one to
"the article rho violation ot" which V* el- i te it* mandate by 0 tretf tj/“ error 1 ; of its
legotl by the plaintiff in etwr i in foilt* | vmts'idtM-ttqmho to nice the denial
his case Vitbln it* pi otcclinn, hn mnst Court of the last retort
Is to-d* h. This wuY not in the
'nature of a" writ of brr.tr | it partook of
iioua ot its quulitlMf it ordered an act la
ba dono-hy the Comt of Appeals, by nn
entry on their own record ; had it been
obeyed; the emute mat no longer before
thii court, ao return ef any record or />ro-
ceedmgt wat required at the fduuddtion
of any jurther judicial action. The writ
of error which brought ilitt calm ft second
time before this courts whs not founded
on t)u‘ judgment of the Courf ef Ap-
ptah, rcvciNing that of the District Chun ;
if tens founded out heir refueal to obey the
mandate of ihic ruuii direetrd to them in
181 i, end to tlcclaNd and rottstdored lit
thn opinion of this coon.— I Wit. 88,4 to
3f>2. No proccedhtg or record ol the
Court of Appeals was relumed by the
clerk save this rnfuitil. Nothing more
was heliqe thi* court, or rottld he the nub-
iject matter of its jutllchtl ttwyertlen or
roniiderntion. Its whole art too eommented
on a writ of error ittutd by no court nr
under tbe teal if any, and Indeed by a to-
versul of t!m jttdgitmol of the (’nutI ot
Appeals of Virgioiit, lettdctctl on the
otu title te, (their rolutml to etttcr Judetttettt,)
atwl a second ajfii'metncr ol the jttdgmt'ttt
of the Dlatrlcl Court held at Winchester,
PVmn tvs hesittuins ttt its tefhtlttatlno, It
wax withnet any analogy to the oroceotU
Ittmtntt a writ ei>trnr,or any otlior jttdl-
ctal action, aeretdtnt in the cottrto of thu
of u Still*
bout -tan ap*
penruhee. The point has never been
made. The question, therefore, it. an 0-
pen one; and there is no color of authori
ty for saying, that it has till Mils lime;
been closed, by any adjudication of thi*
or any other.Court. When a question a-
risca, for tho first time ieibis Ctturt, In a
case of infinite importance, in which only
oneiparly appears, and that question pre
senting a serious difficulty to further pro
ceeding, without famoving it, nod is at
common law, an admitted bar to the czcr-
citc of appellate, jurisdiction; unless the
counsel for the plaintiff shall have niude it
appear that the law which regulates this
< 'ourt in proceedings on writs of error, is
dijerentfrom all others. The direct and
tiHirow path is plain, and I must tread it.
In ('oliens.es. Virginia that path, is plain.
It has Ueun travelled for sues by all Judg
es, and cannotemi in error. It is dange-
t >ua to try a now one; for oue knows noi
where it will end, or how soon the judg
ment nuiy become bewildered in follow
ing nil ha. ramifications. The trodden
path is the sale one. Its adjudicating on
Ktate records omiei the 25th section, this
rourt has always met with difficulties in civil
i uses, in deciding what is the record of the
iufetior Court, what part of tbe trans-
ript certified by the Clork of the inferior
Court is a record, nnd what not: what
not vet
tb’i
ji W
ftial labors'
easily si
order to return their record to (his court
hr it* judicial inspection, ao a paper pus-
poning to be u writ of error, signed by a
Judge ef Ikle court without a public seal,
- this court has jurisdiction io
other alternative but .fo rentier my judg
ment on fiiith, or knowledge, iho.result ol
uiy unassisted itivesligiitiou, though I sbmtl
uloflis m this court otrmost imporiiitii qm s-
tion* of. (Kt*yr *’nij ( jurisdiction,., it' must
not be understood that I rest iit. lho pride
rech e team. Though such may have j of opinion merely, or dissent w’ithooi die
bee* a loose end sob sihmtio practice, in I strongest iuternfel conviction, (but ray opin-
rmm where th* defendant in error appear- j ion is fouqded on and supported by the
edand hit counsel argued the merits, it is! law. The occurrence, iu the gai ly part
tieriy without any authority in law, and i of tbe argument, called for those remarks
" principles. It | a* an explauntiou, not an apology, i'ish-
enamaf (wit* best Milled
is time that such practice was Mopped, or
irmay lend much to weaken the respect due
to (he legitimate acts of this court, and no
proceeding onght to be permitted in its
or'ys. Cockerell'came up on a wrjt.ol er
ror to the Court.of Appoals of Kentucky
with this cortificme under it| seal ; “j,
Jacob Swigort,. Clerk of the Court of
,ov on its authority, unless pursuant to l Appeals for the State aforesaid, do here-
and m strict conformity to the laws which I by certify that the fotrgoigg seventy-two
aatheriu them to:act. This is not submit- | pages contain a ■ transcript of tt;e record
ting the silent practice of this court to the ; nnd proreedincs thereiu mentioned.”—
lest of an intlividiittl opinion. iH'thn case 1 The attest at iott uud seal in the transcript
referred to by tho court as.an approved iti the pitesent .case gives, it tin mure »u-
ant of jurisdiction under tht twenty fifth]’' 1 — •*—- *“
section, it was contended "Thai itieu-!
modnt pf judgment was tuu soffnicnt to
ground an appeul dr '"writ of eVriii to Hits
court. This i* a new qaes'ivd-’ Thitiy-
fivtl yoms liits (his rourt been adjudicating
under the twenty filth Section of . jhe judi
ciary act of 1789, and familiarly-known
the Court and the majesty ef the laws.
Hunter r*. Marlin lliuil, being a case sui
generis, can be no precedent lor any btli-
criminal
or civil ease, certainly not for a crimin...
owe. The plaintiff, or his Counsel, wrtihi respect or sharing a common fate. But 1
hardly be content that the.action and ju-1 truuthiu lor the consequences of a course
tbentk iiv as a record, than tbut oit.Swi
een ; if the cairtems of -the one are judi
cially before us, so was tuu lUhm ; if gll
whit-lt Hus columns is matter ol judicial
iuspeciiop. so was thsl ; if die .ii-uirti in
tins case rnskes <1 tin n-roi d uf t he court
befow, forth/- purjiOMs ol a writ ol erjor,
so did that ; and it a record, it is absolute
to have passed in judgment .oil t^tsesof ( vetily.— 5 Foters, 241. A u-.atisci ipt tip-
very small amount, without having before — *“ r ' 1 ~—
b»d its Mtlehlloit called to the comtiuc-
tion-nf the twent;-fifth seet.iou now con
tended for. Ncwrththtt, f the received on which lira court of fsuco- passes its
ponded to the writ of error by the Chief
Justico of the court to whom it was di
rected, by bts retutu becomes ;bc record
isftbtl. To me it is tbe *
.it is, ha* been, nnd ever
it to proceed in my judi-
tled by an ambition not'
^ ■trained to the fulttex*
of desire; wot that my opinion* »hoo!d be
respected by the ajjjhority of my iinnie,
but only so far ns they may be found to
contain tho spirit of the Constitution and
the statutes, anA the results of the judg
ments of those who have preceded mo
ho re and elseWheVe, hit th#ltfw W lho
land accutding to their plain language, le
gal meaning and just .inter prelaw on,. As
ruio of the expounders and administrators
of foe supremejaw, I am not without tjie
impulse of high ambitiorij but if» highest
nsptrAlions are, at a Judge, to be consid
ered now,and remembered hereafter, on
ly as ono- ** Q'oi eonsulta pntrum qui leges
et juraque servaj.’*
1" .. JJUJ u'JLI'JlLILu i--a*
OAIUJBZV |fiSDS (
R AISED by the 8twkerSocieties, at finfioU
and Lehani/n", for sale *t(t«toitof
G. W DHAWGHAlfo
White Onion,
Yellow Onion,
Red Onion,
Blood Beet,
Early,Turnip, dm
French Sugar, do.
Mangel Wursul, do,
Orange- Carrot,
Blood Cturnl.
furls, papers or opinions of the Judges are, jCnrly. Cluster, do,
ixable before us, and how they must Th a y Ghorkm,
Loag
Flatdd.
fanovcr.do.
GuornsfV Pprenip,
Long Whits Patasip
Long Cucumber,
Long Green, do
Early Cycambet,
risdiction of the Court, in this case, should
bo limiied to the extent within which it
wns exercised in Hunter and Marlin. The
solemn judgment end final process of this
Court would lie. no beam of dawning light
on the louely path, or the bursting of morn
ing in the cell of the martyr; it would not
open the gates of the Penitentiary and
set tlie prisoner free; ho would still remain
a captive, abiding in darkness, in solitary
light, or laboring with felons without some
thing more than a reversal of tho judg
ment now reeerted. or a reversal of the re-
oenitruction hut been erroneously adopttd
without examination, it it not too late to
correct it now.'*-— Bnoll vs. Van Ness, 8
Wit. 321, 2. I puss for the preaeul from
the prurtico to the decisions of ilns couit.
So important do'this court deem ihe mads
of ratuctlng a cause from a D.siiict to a
Circuit Court, that though it may bp done
by writ of error or appunl, they, have ad
judged 'hat it cannot-be done by a writ of
certiorari, a* there is no law to warrant
tbe removal of a record front ti District to
a Circuit Court by Mich % writ* That
the District Court ought la hone refuted
obedience to its command, and- that either
“party might have proceeded in that court
after a transcript of it* record h id, in obe
dience to the writ, been remuveid io the
Circuit Court,iu tbe tame manner at if the
rteor&had not been removed. Huttiesuu vs.
' United States, 3 Wit. 225, 6, Though
the record ii actually removed by writ
pf certiorari, a regular common law writ,
and tbe 14th section of the judicial y act
authorities all t|>e courts of the United
Stalks to issue ail writ*, necessary for tbe
exercise of Iheir jurisdiction. 1 Story 39;
—Agreeably ip the priocijAuf and usages
Of- law, its operation M n nullity unless the
partied acquieoce by appearance and ac
tion in the Circuit Court without objec
tion. Sucb,being the settfdd Tule of law
Ip the Femoral Courts b.e'wfen which
there can be no conflict ofihoshlo juris
diction, iinw much more strictly ought it
to be observed in a case like this T flow
far the art of 17'.)2 would, by the princi
ples of this derision, authorise a Circuit
Court 10 issue a writ of error .to a Slate
Court, «* WM done in Btudl ys. V an Ness,
8 Wh. 312, does nor uriso on this ense or
those cit«4 ■* prpcedums, and is not n sub
ject of enquiry- now. It i4 enough for
this case, rq'know the settled rule to be,
that in exercising the revising power in
trusted by (he constitution and laws of foe
United States, wo must foHow the legal
. pat It prescribed fur us, 3 Fit 259. An im
portant rule laid down in a case, iiupoi-
taat iu its bearing ou the jrarnt new under
consideration, and to which the witemwu
of the'Plaintiff's counsel wax especially
requested as the Isst reported, case on the
subject. |n a cause of slain magnitude,
heard on »n uxoartt'-argnnaent, if MWMel
fla eel feel themselvex ms ilaadiagdu this
court, (fa* eqHtntho nuitude of sdvo‘
cates of the*mts, hut ns "amid aeri-
•c,” desirous af^tamining every princi-
S le which bears on the power and juris-
iction ol the court, to render a judgment
jndgnium. and it can c-Xrlude no part of it
from its consideration, if it bears on the
assignment of errors which alwqtjf ought
to act-umpany.il according to die direc
tions of the twenty-second accimti. If
Ihe traoscript certified by die cleik, un
der its seal, is ln|ted by this court as a sub-
sttiute for the schedule returned by the
Chief Justice, it must have its full legul
effect in our consideration ; if nut so ta
ken, vbt.-n it i* no record for our judkiul
inspection. In Fisher vs. Cockerell, thn
transcript ^ocertifu-dcontainod the certifi
cate of the clerk of the Circuit. Court of
tbe Stare, that a patent tu the plHtpliff was
read in evidence and a copy of the
output, founded ou rights derived from
Virginia, wat set forth. Hut the court
observe the title of the plaintiff wat not
made.a part of the record by a bill of ex
ception, or “in any.other manner"Can
this court notice itf Can it be consider
ed ns part of lira record.” In cases at
commpu law, tho course uf the rourt has
been uniform, “not to consider any paper
at part of the record, which it not made
so by the pleadings, or by some opinion of
tht court, referring to it. This rule is
I'ummqii to all courts, exercising appellate
jurisdiction according to the cunrse-of the
common law.” The record then, to* the
Union C. C. does not show that ihe cast)
is protected by the compact between Vir
ginia nnd Kentucky, 3 Peters, 254. The
transcript bf the record of the Court of
/j p pi'a Is, contained un assignment of or-
r,ofs in foe. record of ihu C,'C.,present
ing the question arising under the com
pact between Virginia and Kentucky, most
distinctly.- god tin elaborate opinion ol
the Judges, in rendering a judgment on
tho effect of the compact on the rights of
the pm ties, mid wus reiuivted by the clerk
of tho Court of Appeals, under its seat,
and Itis signal tire, in tile transcript ef the
recoid in the case, in which the writ of
error wis directed. Yet the cuurl con
sidered neither the patent, tho assignment
of errort, nr the opinion of the court, a*
forming part tft the record. and ^itmiss-
ed the suit for want of jurisdiction. My
dissent w»s iu these words: “l am COM-
pellod to dissent from the opipiop of the
court. for the following reuens.The
certificate ol the clerk of life Court af
Appeal* attached to the record, is ie there
words—(Copy) "And I teol bound on the
preliminary question of jurisdiction to
consider all that is so contained to be a
part of the record in this suit, so for at
least us to give power to this court to ex-
Tim objectioo* mode- try Mr. Taeiov to
the Court raieftntaint' jai-isrTw-.'iino were
show that tho title he muettt (a tAysAwd *w<t the staetareticn of nn Inferior Court,
front thu Ihw* of Virginia, pitwi tw thte i ihat itoe wotmun judgment of the highest
si'perntioti of the two States tkrt’ M'iJwdWiA ttfhnnsl uf a nation," teas a pro-
tie he not so floured, the wwwtu non indict, in relation to
not. extend to it, and thn phnuuM' ♦.viwi.’fe Urns «t final judgment, to be
ito other error. "5, 3, In the *:v*te tqhoy, mw. And no Uoort of higlt
the (lift th.tt rltu itil» of the ykvhtivA * swd »njw>t vising power, ever emit ended
error was derived lion the Ww* wtf Y*»h. tkmwhui villi immsiof tho rtfnsal of
ginia, It fact without which, thn Wtt' '■! SO hvfotiur nnu to olwy its mambite, by dU
not he brought within the iMinivvvi, A-iit-* ins the art commanded, lint there' hro
not appear in tho record, for w-e vwttwM | countless precedents of n di/TVient reme-
consider a mere assignment ef enw* (w j dy for the party injured, nnd a higher and
an a/Fpnllate court as apart of the rteerd, j erne* efficient vindication if the power of
unless it be made so by a legislative act. *'-"*•* ,i - - , “ 1 - '
Tito question whether the nets of Ken
tucky in favor of occupying claimants,
were or wore not in contravention of the
compact with Virginia, does nut appear
to have arisen, and consequently thn caso
is not bro(ifilil within tho 25th Section of
tho judicial act. Tho writ of error is
dismissed, the court having no jurisdic
tion," 259.—Such wns the solemn judg
ment of this court at last term. It set
tled no silent piactice as to receiving or
acting on transcripts of the records and
proceedings of- the- highest courts of a:
Shoe under the 23th needed; -bur it Wait
a most deliberate decision *on the faith,
and credit it gave to tranici jpts, or n‘
paper, as part of tho record which is not
made so by a bill of exceptions, BMCJlic
pleadings, or by somo opinions ^re-the
court referring to it. So for as the al
ternation of the clerk mid seal of the Comt
o Appeals could make the whole paper a
record for judicial inspection, with a ju
dicial eye, it complied with the 11 tit rule,
ft it was ao authenticated transcript, ac
cording to the 22d section, the court were
bound to mite it as the record of the suit,
as absolute verily, against which no aver
ment could be permitted to n court or ju
ry ; and, according to the 25ih section, to
affirm or reverse the judgment of the
Court of Appeals, ns to lln-m may scorn
right, according to lho laws and curiums
of the United States. If the paper hud
been returned by lho Judgos of Ihe Court
of Appoals, attached under tlmir seals to
the writ of error, this court could not have
listened to un allegation of counsel, tin;
the patent, thn assignment of orrorr, <fod
the opinion of the court, wns no part ol
their record. No Court of Error, pro
ceeding according to the rourse of the
law, ever held that they would not ittdt-
rially notice an assignment of errors in an
Inferior Court, on n question of jurisdic:
(ion over its record. These parts could
have becit considered at ho |itiri ol a rfe-
co’rd on n motion to dismiss only, by view
ing a paper attested only liy ’tho seal of
the court, nnd tho name of the clork as a
creature of tho 11th rule, and not aa tin
authenticated transcript, according tt> tho
act of Congress, or a record nt common
law. If this court could not exnmine its
content* judicially, and if it was not law
ful warrant and authority on, and by which
to act at all, to affirm or reverse, na.v
even to inspect, the judgment of the State
court for 1350 dollars, and the suit was
dismissed on motion, how can limy estab
lish Indian sovereignty in Georgia nnd an-'
nul Iter laws by any power which this pa
per confers, and what other course is left
to a judge who dissents in both cases,
than to follow safer, and in Itis opinion,
more consistent guides? These cases
haVo made a sttong impression on my mind,
which my most deliberate, reflections have
neither removed nor weakened—and they
have confirmed and strengthened tny
opinion of the danger and uncertainty at
tending Ihe reception of transcripts au
thenticated only by the clerk nnd seal of
iufet ior courts. I must look elsen here
for the law which I am bound to obey,
nnd act on the dictates of my judgmeot,
tbe Qihort may think it has become.bewil
dered by the illusions af summer dreams,
or tho- conceit* of faney. In reclining
to tho case of Martin and Hunter, it ap.
I tears that the judgment of the Court of
Appeals was reversed and the judgrpem
of the District Court of Wineliestei was
affirmed by thi* court.-—7 Cr. <128. Ami
it uppers by tho record that “it is fur
ther ordered that the S'tiif cause be rb-
cugnixab
appear or become a part of what we mny
inspect with judicial eyes. 'Vid, Fislipr
vs, Cockerill, aud the cases cited. But
all doubts and difficulties will be ended
by enforcing and following' the prece
dent in Hunter vs. Martin, 7 Cr. and
Coltehs va. Virginia in G Wh. The re
turn of the Judge will authenticate the
schedule annexed as a transcript, within
all ill elides of ihe Consfoiition, the acts
of Congress, and the custom of Englaud
and the United States. The whole tran
script becomes the record of a Court for
nur revision, and our judgment will bo
i endured on all the mailer contained in it
hearing on ihe errors assigned. Taken
as importing verity, il will be n safe guide
lu action in lho whole exlonl ol jurisdic
tion; nnd ihe course of the Court, being
from the issuing of the writ to the. final
mandate the course of the law, they will
boeomo identified, commanding common
RatabaMi do.
Whitt FJ«(. do-
ffokflowe* . „.
Squash Pepper*
CayoMA, do.
Double Pepaergraso,
Vegetable Oyster,
Tomatoes,
Solid Celery,
hammer Savory,
Curlod Pawley,
Dwarf Coded.do-.
New Zealand Spina-f.
Round gpinsge,
Long Whit* Okra,
Asparagus,
Nasturtioa,
Dutch dummerSquash, (loqoette, a Cnesaiad
Cioukjieck Summer,do.'Gsrden Cress.
Crookneek Winter, do. English Sonet.
White Head Lettuce. White .Mustard.
Ice Head, do. Brown, do.
Ico-Coss, do. .. Leeks,
Imperial dagar Loaf,do. Early. Sngar Com,
8ahhage Head. do. Earlv Washington Pea
Salmon Radish, Karfy Jane, do.
Scarlet, do. Early Ct.ithoa.-do.
Sduriel Tamip. do. White Marrowfat do-
Scarlet Short Top, do. Strawberry Dwarf, do.
Drum Head Cabbage, DwarfBlae finperialdt*.
Watermelon,
Moskateloo.
Nutmeg-afalea
Cantelope, do.
Early York, do.
Green Savoy, do.
Yellow Savoy, do.
KarlySugar Loaf, da-
Green Glased, do.
Bud Dutch, do
Norfolk Ftllt Taraip,
January 7—34
Early Cb. Dwarf Beam,
Earlv Mob'wk Dwarf, do
While jndne.vDinrrf.do
Superior Whitt Pole.db
Cranberry Pole, do.
Lima Pole do.
of proceeding, which, in my humble opin
ion, leaves a wido space between the
practice of the Court 'and lho luw of the
laud, and so considering that now pursued
i do not consider my suit at liberty to ex
amine iho remaining questions in the cate.
So far as it respects Ihu national existence
of the ImiiuD tubes, according lo (be
Consfilutiou, the power of Congress over
lho territory of the United Status, tint of
Georgia within Iter limits by Iterowu right
a ml the compact of 1802, it lias been ex
pressed on a former occasion, nnd is yet re-
fusal of thn Superior Court of Georgia to j mined. In allowing the writs of error in
obey the mandate now issued. But, waiv- I ,he«e cases, it was in Iho full expectation
ing ail these considerations, and viewing,j that the validity of the laws of Georgia,
limiter ami Marlin as a case af common would have been subjected to' the test of
law, it amount* to nothing a* a preewdeiM, , the second section ol foe fourth article ol
he Constitution: “ The citizens of each
Atate shall be entitled to all privileges and
1. “ At tamtam law, thw wiwr ot evrerj iovimmittt* of cii'ratns in the several
must be returned by the Cam ibwMfV it is Anweitv* Had it beoh then believed that
imperfect in this ease, and, therefore, we, this provision of the supreme law, would
have a right ton certiorari, or writ ofHi- not hove been deemed worthy of noltco,
munition. Hut there, is no error,' the cfiber m tbe argument of counsel or iu
Court of Ajtpealt have done nothing and ; the opinion of the court, I should have
therefore there into error in their proceed | withheld my allowance, leaving it to some
ings. Ills a mere omission to do what other Judge to have made it. For the
they ought to have done, and no judgment | sole purpose of trying the question of in
can he rendered her* to reverse, what titan sovereignty, I refuted to allow a writ
they have not done."— 1 Wh, 315,1G,„- ; in the name of all the defendants, because
I can perceive no bearing Of these ohjec- ; (hey did not aver in their plea in the court
lions on the question of whether tbe Cotsrt oehr#, that they were citizens of the Uni-
ought to return their retard and proceed- j ted States at of any of the States. The
ings. Their refusal Io proceed and sen- ■ plaintiff* made this averment, and I felt
tier a judgment in favor ef Martin in nbe- 1 bonnd to permit them to assert their con-
dience to the mandate, wax returned by \sHtutional rights in this Court; they were
tltoir Clerk lo lho very teeth ef for* Conrf.
I will not snv font tbit wn* according *• lo
the laws aud customs of England at lire
United Stiilei,” bul must declare il to Ire
no precedent lo be followed in any caee.
So seems to me io be the decision of ibis
Court, considored by foe laws and cus
toms of either. Tho refusal Wa» no final
judgment, or process, or proceeding, in
notice of, or nnforc ng one; and thn rea
sons assigned by the learned counsel
would seem to liavo suggested very con
clusive reasons for proceeding no further
on t|m writ of orror. The opinion de
livered nt tliia term, in Bayleas, Zarburv
and Turner, is conclusive on this point.—
But bs it proceeding of a peculiar charac
ter, founded on a construction of the 25th
aud 22d sections, lo ntettt Ihe exigency of
a cast till thtn unknown to the law, its cor
rectness is not questioned, though It can
have no application to the present case,—
The objections to the want of a return by
tho Court were wholly foreign Id font now
resting on my mind, and lho manner in
which they were disposed of by tho learn
ed Judge, in page 301, shews font the
question presented was not decided and lho
at liberty lo rest their case on any other
ground, but it has been wholly unexpected
to find that wholly omitted as unworthy of
notice in the decision of this ail impor
tant came. I he judgment is pronounced,
the mandate lias gone forth, in words of
power which bid a Stale obey; the act is ir
revocable and the deed is done; como good,
come ill, I desire neither praise or censure;
my judgment directed me to the plain and
narrow path prescribed by law ; mv duty
has guided me in it; I have come to n point
where there was a barrier which lioth
forbid me to pass. I have obeyed the im
pulse; and having taken scot or lot of this
matter, wash my hands of it now nnd here
after. If the fiut of this Court -shall be
received in Georgia io tbe beams of peace
mid carry on rs wings, the healing ofllic
nation, I shall not rejoice the less at the
blessings. But If it shall be the mountain
norm which shakes foundations, my voico
has not udded to the fury of the blast.—
Whether it shall pass my head unhurt, or
jay ii low; whether ns n self supported
»ak, riven by the tempest, or rooted the
firmer tho ruder it blows, I am at peaco
within, with a mind convinced and judg-
ones decided -were not presented, by the .mem fixed, and an approving conscience,
objection which was, that the Court, had Thy consequeuccs are not mine. They
not returned the writ of error, and the de
fendant in error had a right to a certiora
ri or writ of dimmution, to which ihe on-
•wur of the Court was “ That the record,
in this cine, h duly certified by the Clerk
of foe'Court of Appeab aud returned with
the writ of error;” there wau no record to
return except the mandate of this Court,
aud the refusal to obey it. It is ihua man
ifested that no fixed or settled rule can be
extracted from the precedents, practice,
or adjudications of this Court, on this
point,, even in civil rsiuu; and it never ap-
will lie met without self reproach.
: In again standing alone on the question
Of Indian sovereignly, nty attitude lias not
been assumed in the consciousness of my
own strength, or the confidence resvltiug
from my own reason and reductions: not
from a wish te adopt, or act on any new o-
ipinions, rules, principles or maxims of the
law, but in obediencq to old and settled
ones. If lam wrong it is because I can
not understand them; if right, it is not bv
following any light of my own invention,
.... but by tracing foe ancient path illumina-
pears lo have ceme under its Judicial ’ led by lamps which never flicker and are
GROCERIES,
For Cotton, Pipe Stares, Hides
or approved paper.
CHARLES E- NORTON
1 NFORM3 Merchants and Planter* visiting
Apnluclncoln. that h« lias just received from
New Urlenns, a large and extensive awortmeni
of Groceries, which added to his former snpplr
from New Y«rk, makes hi* assortmenr os com
plete, if not sugbrior. to any he.has ever offered
to the public
Hi* establishment will he supplied** often ni
once s month, that Itis customers may be sore at
any Iinw of finding a good ssrorttnent ■
Merchants and Planters wHI find it to their ad
vantage to give him a call, ns it is his intention to
sell at moderate prices, for Cash, Cotton, Pipe
8laves, Bides or approvod Paper.
Just received as above,
sacks Green Havnnnn COFFEE-
(ill by schooner Magellan, and to tie sold
cheap for cash-
Apalachicola, Dec. 20,1831—34—istf
MjBDICAL boohs.
T HE subscriber.has just received at tins
Columbus Book Store, the following Books:.
Smith on Fever.
Hennen’s Military Surgery,
McNevin’s Krnndc,
liberie's Practice of Medicittfe.
Dewee’s on-Childron.
Do. on Midwifery,
Cooper'* Surgery,
Do. Lectures,
James’ Burns, -
Abernathy's Lecture*.
Tavernier’s Surgery,
Hamilton on Purgative^.
Wiafar’a Anatomy,
Tamer's Chemistry,
Dental Surgery,
Beck's Medical Jurisprudence,
—xieo—
One set of 1-1 inch Globes, celestial and iettl&O
trial, together with large Maps of the World, of
Europe, Asia, Africa, North and 8oath America,
and of tho United Stales, yellow, rose and white
letter Paper, foolscap, cartridge and wrapping
Paper, blank Books. Quills, Wafers, and Sand
Baxes, pocket Maps of Georgia, Tennessee, Vir
ginia, Missouri, and Mississippi, Scissors, Nee
dles, and Cares, Razors, Penknives, and Span
ish do.. Pistols, Snuff Boxes, ever-pointmr stiver
Pencil Caves, Peicussion Caps, Ac' Ac. Ac.
Together with a great variety ef Books, and
other articles tooonmerous to particularize.
E. 8 NCfKTON,
March 21—45 Broad-Sneer.
JUST RECEIVED
By steamboat Georgian,.* general assortment of
JAPAZT WARS,
Copper and Zinc Kettles,
Pewter Basins and Plates,
Sheet Copper,
Do. Lead,
Do. Zinc,
Do. RiissiuTron, l.'*
Do. Brass,
IIoop Iron.
ALSO ON 11AND.
» gk.vcral assortmkst dr
Tiar wa«e.
whojesalertttd'rotniif S “‘ d “ ,B ‘ OWOS ' ^
ffjf* Cash paid for old Pewtor.
„ . , „ Harvey hall. -
Columbus. Dec. 17—31 tf
T „ r INSURANCE.
1IE Augusta Insurance and Banking Com
pany will insare produce and tuerchandiae
against the dlingers of River Navigation on good
steamboat* and other rivet croft, and opon aood
veaaefs from Apalachicola to New Orleans or the
Atlantic cities. They will also .lake fire risks
upon buildings, merchandise and produce,
„ * GEO. W. DILLINGHAM, As
Nov 5—26—if
1AM, Agent.
• LOOK MERE!
C OL. WM. H. IIARPER j* authorised a,
•ell those valuable TownLm*^foCriEXJE
No., 503. 604 505 and OOfi,
block, with improvements, low foT^fh Tw
town** 0 * tb * y ““ Dl0, t desirable of *uv in
town
D*c-.24_{i2-Mcr