Virginia Argus. [volume] (Richmond, Va.) 1796-1816, 1816-04-13


the judgment of this court or if It declined do
ing so, that then this court would proceed itself
20 execute it. The words " sense" and :" opera.
tion" of the 25th section on this subject, merit
particular attention. In the preceding sec, ion
which has relation to the causes brought up by
writ of error from the circuit courts of the Unit.
ed States, this court is instructed not to issue
executions, but to send special mandate to the
circuit court TO award execution trereupon. In
case of the circuit courts refusal to obey such
mandate there could be no doubt, as to Interior
measures, compulsory measures might unques-
tonably be resorted to. Nor, indeed, was there
any reason to suppose that they ever would re-
fuse; and therefore there is no provision made
for authorizing thu court 10 execute its own
judgment in cases of that description. But not
so in cases brought up from the State courts
The trainers of that law painfully foresaw that
the State courts may refuse and not being will
ing to leave ground for the implication, that
compulsory process must be resorted To, because
no specific provision was made, they have pro-
ded the means, by authorising this court, in
case of reversal of the state decision, to execute
its own judgment. In case of reversal only was
this necessary, for IN case of affrmance this COL
lision could not arise tbs true, that the words
OF this section are, that this court may in their
discretion, proceed to execute its own Judgment
But these words were very properly put in, that
i, might not be made imperative upon this court
to proceed ndiscriminately in this way as il
could only be necessary in case of the refusal of
the State courts; and this idea is fully confirme ed
by the words of the 18th section, which restrict
this court in issuing the writ of mandamus, so as
to conflne 1T expressly TO those courts which are
constituted by the United States.
In this point of view, the legislature is com
pietely Wind Gated from an intention to violate the
independence of the State Judiciaries. Nor can
this court, with any more correctness, have i'm
puted to 1t similar intentions. The form of the
mandate issued in this case is that known to ap-
Peilate tribunals, and used i'll the ordinary cases
OF writs OF error from the courts of the United
| States 1t will perhaps not be too much in such
cases, to expect of those who are conversant in
the forms, tictionS and technicality of the law,
not to give to the process of courts too literal 4
construction. They should be considered with a
view TO the ends they are intended to answer,
] and the law and practice in which they origi-
! nate. In this view, the mandate was no more
than mode ofsubmi,tng to that court the op.
| ton W lch the 25th section holds out to them
| Had the decision ofthe court Of Virginia been
confined to the point of their legal obligation TO
| carry the judgement Of this court into effect, |
! should have thought it unnecessary to make any
| further observations in this cause But we are
! called upon TO VindI our general revising
power and It's due exercise in this particular case
Here, that may not be charged with arguing
| upon hypothetical case, is is necessary to as
certain what the real question is which this court
is now called to dec deon
! In doing this, it is necessary to do what, al
though IN the abs ract of every questionable pro-
| prety, appears to be generally acouesced in. to
| wit TO review the case as it originally came up
to this court on the former writ of error. The
4 cause then came upon case stated between the
parties, and under the practice of hat state hav-
ing the effect of Especial verdict. The case sta
| ted, brings INTO view the treaty of peace with
1res. Britain and then proceeds to present the
various laws OF Virginia, and the facts upon
which the parties found their respective titles II
then presents no particular question, but refers
generally 10 the law arising out of the case Che
original decision was obtained prior to the treaty
| ofl794 ut before the Sc was adj Id Gated T..
this court the treaty of 794 had been concluded
The objection arises under the construction of
the 25th section above alluded 10 which, as far
as IT relates to this case, IS in these words: A
hnal judgment or decree in any suit in the high
est court oflaw or equry of state, in which
| decision in the suit could be had" " where is
drawn in question The construction of any clause
| OF the constitution or of a treaty" " and the de-
| clslon IS against the title set up or claimed b
either party under such clause, may be re-exam
| lied and reversed, and affirmed" &C.
But no other error sEal be assigned or 70.
| garded as ground of reversal IN any such case
as aforesaid, than such appears on the face of
the record, and Immediately respec, 8 the before
| mentioned questions of validity or CONSTRUCTION
| of the said lreaues," &C.
The first point to be decided under this state
! of the case was, that the judgment being part
OF the record, II that judgement was not such
as upon thai case It ought TO have been. it was AN
error apparent oil the face ofthe record But il
was contended, that the case there stated pre.
sented number ofpoints, upon which the deci-
SION below may have been founded and that i
did not, therefore, necessarily appear TO have
Deen an CT OF Immediately respecting question
on the construction of a treaty. But the court
held that as the reference was general tn the lou,
arisng out OF the case, 10 one question arose.
which called for the construction Of treaty aud
the decision negatyed the right set up under IT,
this court will reverse that decision and that n
IS the duty of the party who would avoid the in.
convenience of this principle, so to mould the
case, as 70 obYlate the amb guty And under
TINS point arises the question, whether this court
can enqnire into the title of he party. or ,vhetb
er they restricted in their iud cal no,yers
as to be confined to decide on the operation Of
treaty upon title previously ascertained TO
exist.
If there is any point in the case. on which
an opinion may be given with conhd II Is tins
Whether we consider the letter Of the statue. or
the spirit, intent OF meaning OF the constitution
and OF the legislature, as expressed in the 2stb
section, it IS equally clear that the title IS the
primary objectto which the attention of the co,,rt
IS called IN every such case The words arr
and the decisl on be against the htks" so set up
not against ne cOtisticiioD Of TIE treafy contend
ed TOR by the party setting up the tile. And
how could it be otherwise The title NAV ex
lst Notwithstanding the decision of the stafe
courts to the contrary and in that case the party
IS entitled to the benefits intended TO be secured
to hun by the treaty. The decision to his pre-. |
JUDGE, may have been the result Of those yerv |
errors, partialIties or defects IN State iurispr,,
dence, against which the constitution intended |
to protect the individual. Aud If the contrary |
doctrine be assumed, what is the consequence |
This court mxy then be called upon 10 decide |
on mere hypothetical case--to give eonsuuc. |