The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1881-01-16

W., mai they were successfully d'sposeu
tn'"s mo supreme Court upon the hypolhe.
o. y .,s, The jurisdiction OF that court had
SIS ~, hecn brought into existence aud had
duly aitacn'". ., ,,.,.,o The
,,r,sd,c,,on 81 aeither court had ever oeen
~, into exercise or had ever at'acned.
when in September. 1874. the petition was
a"on,ed 10 the Court OF Appeals aud at
i~mn,cd 10 be acted upon, ITS jurisdiction
- receive il had lapsed and ceased. It's ac-
,,on in receiving II was nudity, as tas
hcen shown, being c0rdin non Jad,oe; ana
a. ro,uSal 90 issue the writ at that time for
,.o reason ~ Overwhelmingly, that The
s"dgmeni OF the court below was "p|ainiy
y;ont was an attempted exercise OF iu-
r,.d,clion which had passed away forever.
Tho Jurisdiction assumed by the Supreme
Court was 10 review and reverse that multi
~. Its own action was OF course q nulIry
since it, own jurisdiction depended upon
mai which IL sough, 10 review. In a legal
>en>e. there was no judicial action by the
court OF Appeals to be reviewed, and there
could be nothing to b. reversed 10y the SUI
ureme Court: add in legal sense also the
rights ~ the plrlics stood and stand pre-
ci,ely as t,cy stood the day after the 1Sth
day II Arril. 1873. when The judgment of
the Circuit Court of Rockingham beng Al
ready final from the first. then ceased for
ever 10 be renewable OF eXaminablc los any
court.
II i q singular fact and remarkable in
judicial history tina, 10y The mi>copyiog or
ml>pIint q one word In the recoId of The
action OF the Court Of Appeals declining TO
obey the mandate the Supreme Court was
led into the orlor Of snpDoSing that tbat
court bad said directly The reverse OF what
II did say. and was thus induced 10 consider
that there was no difficulty about the iuriS-
dc ION Of the Court Of Appeals. That court
bad said. and said truly, thai at "no time
WAS the case pending cause In t5is
court" The printed copy furnished 10 the
supreme Court made the Court OF Appeals
,sv that az "One time The case was pend
inc cause in this court" II The case had
ever been pending cause IN the
Court OF Appeals for any purpose. I'M
dou6iedly. rs the writer thinks, the appel
lsic jurisdiction Of the Supreme Court duly
afiacaed by its witt Of error, and could not
De ousied. But II, on the contrary, as has
been shown, the case was at no tune pend
ing cause IN that court IN any sense. for the
reason which has been Stated-namelv, that
The jurisdiction Of the court bad apSed be-
fore the petition for the writ was presented
10 The cnurt-then ii would seem 10 follow
with equal certainty that neither court ever
acquired any JurIs diction or bad anything
lawfully To- do with tue judgment OF the
Circuit Court OF Rockingham, and, OF
course. that ihc action OF both courts was
alike an absolute nulhty.
And thus the matter stands. The iudg-
mcrl OF tue supreme Court was that The
payment of the GCbt made under an order
of tbe District Court Of the Confederate
States was void, aud the defendant has now
been required 10 pay the same debt over
again by an equally void order OF the SUI
preme Court OF The United States, aud IBIS
after his entire immunity from all liability
in The matter had been settled for nine
wears BY count OF competent jurisdiction
whose. judgment was hna. and for seven
years bad been irreyersible forever 10y ans
court.
II the Supreme Court had ever acquired
jurisdiction 10 consider the case. the mode
of exercising il and The form OF the judg-
mcnt il rendered Withdrawing lis mandate
from .he Court al Appeals and entering
jnG .meBt OF us own 10 be enforced by an
execution levied By it, own marshal, were
certainly in accordance with The judiciary
set Of 1889 and 100 OF tue Revised stat
utes. But if suCh jurisdiction was never
acquired, the practical usurpatOn, oppres.
sion. and injustice of that action by the
court, though uOIntenlional, are too ObVi-
Gus for comment.
The suggestion minated in the opinion
of Mr. Justice Field that bv a rule Of Drac-
iice when The court has once assumed juris-
diction AM passed judgment. the suisse
quent discovery OF want Of jurisdiction in
the court whose judgment it has reviewed
and reversed will not be noticed by the SUI
preme Court, il wei founded. would be Il
rcproach 10 any appellate jurisdiction. and
certainly would be more honoIed in the
breach than in the observance. Common
sense and common honesty speak out that
il is never too late to do right while the
power remains; aud that adherence TO
wrong, when the wrong i made
known, is the substitution OF obsli-
nate criminaity for iDadyerieDt error.
The principles underlying the right admin
i.tratiOn OF justice everywhere are at war
with such practice. They were well eX-
pressed in the phrlOsophlc remarks OF Mr.. |
Burke upon The necessity Of the fullest and |
latest inquiry and examination into Judicial
proceedings, to be found in his report |
from the committee appointed to inspect |
the Lords Journals: 4" There is necessarily |
some limit, but q limit hard 10 fix. The |
only one which can be fixed with any |
iolerable decree OF precision Is
when the judge, after fully hearing |
all parties Is 10 consider OF his
verdict or his sentenced. Whilst the
cause continues under hearing, IN ANY |
SHAPE OR IN ANY STAGE or THE PROCESS, IL
i the duty of The judge TO receive every
Offer Of evidence apparently material sug-
gested TO him, though the parties them
selves, through negligence, ignorance, or
corrupt collision, should not bring 1t FOR
ward. A Judge Is not placed 10 that high
situation merely as a passive instrument OF
parties. lie has a duty OF his own, indie
pendent Of them, and that duty is TO inreS-
tigdte the truth"
Happily no such rule as would exclude
the Supreme Court from rectifyingii It's COM
mission II wrong, while that rectitcaiion is
within its power, IS to be found among the
published rules OF it, practice and proce-
dure; abd il it were otherwise nothing is
better established by its own decisions than
that rules Of practice being adopted for the
furtheraoce OF justice should never be per-
mitted to cause it, obstruction or peiver-
sion. The court, speaking by Mr.. Chief
Justice fancy. long ago said: " 1t is always
in the power OF the court TO suspend
It's own rules or 10 except partcu-
lar ease from Its operation whenever
the purposes Of justice require it,"
United States rs. Breiting, 90 How, 251.
But there l. no necessity for the suspension
OF any rule in this case. In order TO DO JUS
tice the court has only 10 follow its own
well'settIed modes OF procedure. In Mail