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

wa,siams. &C.. ". nsaGy Reviewed BY
Mr.. Johu Howard.
tux SUPREME COURT OF THE UNITED
STATES RENDERS DECISION UPON A
RECORD WHICH Is iNCoRgECT-ITs JUDG-
MENT A NULLiTY.
Niitors of he Dispatch

ANYTHING new In the appeIiate Iutru'c''ou
assumed, or strange In the mode OF us exer
else. but because an early aud convenient
opportunity has thus been afforded OF point
ing out what are conceived TO be important
mistakes into which alike the Court OF APP
meals OF Virginia and the Supreme Cour
seem inadvertently TO have fallen, and espe
cially the Supreme Court in lts efforts tc
correct supposed errors OF The Court OF Ap
peals, and Of placing the action OF each court
in It's proper light.
The jurisdiction OF the Supreme Court
under the 25tu section OF the judiciary ac'
OF 1889, IN certain cases therein stated TO re-
view the decision OF the highest court OF .
State, was deliberately discussed aud de-
cided by the court, speaking througe Dir.
Justice story, In the celebrated Gaze ol
Martin rs. Hunter, 1 Wheat, 30i, and stu
more deliberately and splebdidly by tbt
same court, speaking through Mr.. Chiei'
Justice Marshall In Cohen rs. Virginia.
Wheat, 2Gi; and the great question in
VOWED has generally been considered
throug bout the country as settled by those
cases. IL Is remarkable fact. however,
that before the late war the Court OF APP
peas OF Virginia never recognized any such
Jurisdiction so far as that court was con-
cerned; the views OF such men as J"ner-
SOP, Madison, Giles. and Calhoun as 10 the
chai acter OF the Federal Constitution and
Government, and the rights OF the states
hereunder, having ever largely ooini'
mated In the State and inspired tue
aclion OF ITS highest court. In Mar
TN Us. Hunter the writ OF error was
granted to judgment Of the Cour OF APP
peals. The Supreme Court reversed inc
decision OF the Court OF Appeals. aud sent
down its mandate Of reversal to be entered
by that court. Ii was new thing in prdc-
lice 10 the court, and greatly excited the
bench and bar. The Court invited counsel
to argue the question Of jurisdiction of the
Supreme Court, and some OF The most emil
nent men OF the day. including Leigh and
Writ, Nicholas and Hay, accepted the invi-
tatiOn, and discussed the case with great
ability, the argument occupying SIX days OF
the term. Each OF the judges delivered an
elaborate opinion, and they were unanimous
in the decision that the writ OF error bad
been improvidenily awarded, and that the
Supreme Court bad no jurisdiction TO re-
view the decision Of the Court OF Appeals.
and they refused to enter the man
date Of reversal. See Hunter rs. Mar
tin, Num-. /. IL was when that fact
became iuuiciulIy known 10 the Supreme
CourI tbat the opinion of Mr. Justice Story.
10 / Wheat, was delivered. The
Court, however, did not attempt To eDforc"
its mandate to the Court OF Appeals, but
waived the question as to whether 1t bad
authority to issue a writ Of mGnddmUS to
that court, and held "tbat the judgment OF
the Court Of Appeals OF Virginia rendered
on The mandate in this cause be reversed,
and the judgment Of the District Court,
held at Winchester. be and the same is here
by affirmed."-1 Wheaton, 1862. l. may be
added that. in order 10 avoid further con-
Dict OF jurisdiction, the case, by advice Of
counsel, was then compromised by the par
lies.
A. TO the case of Cohen as. Virginia,
above mentioned, the writ Of error was is.
sued from Che Supreme Court 10 the Quar-
terly Sessions Court for the borough Of
Norfolk. Va, that being the highest court
Of the State baving Jurisdiction of the cause.
And the judgment OF that court was affirmed
and the case in no form was ever brought
before the Court of Appeals. But OF the
decision Of the Supreme Court in that case
ii NAV be remarked, en- paSSont. that it was
The first Of those grand political disquiSI-
tons in the form Of judicial opinions by
which the genius and intellect OF the great
Chief Justice did so much to change the
character OF the General Government from
The limited agency Of confederaled sovereign
republican States TO the centralized impe-
rial power II a gigantic consolidated demo-
cracy.
The next Virginia case was that OF the
Fredericksburg and Potomac
Company Us. Louisa Railroad
Company Q3 How., ~. and 1t is the case
cited by Mr.. Justice Field in the opinion
under consideration as illustrating the ju-
risdictiOn assumed in Williams, &C., Us.
Brufiy. That was suit brought by the
plaintiff company to test the right OF the
hen Louisa Railroad Company to con-
gey passengers by It's connections from
Richmond TO Washington. The ihjunc-
loo asked for and the rights claimed ty
he plaintiff were refused by the late dis
inguisbed Judge John Robertson, then
chancellor OF the Superior Court Of Chance
" for the Richmond circuit. \ petition for
IN appeal was presented by the plaintiffs TO
he Court OF Appeals, and an appeal was
refused, Hcsuse in the opinion OF the Court
he decision Of the Superior Court OF
ChaDcery was "plainly right" the entry
being made in the usual manner when that
court refuses an appeal or writ OF error.
An appeal was taken 10 the Supreme Court
)i the United States. That court regarded
he refusal to allow an appeal as an affirm
lnce by the Court OF Appeals OF the chan
:eIlor's decision, and assumed jurisdiction
" the case. 1t affirmed what 1t called "the
Judgment OF the Court Of Appeals OF VIr-
yinia," and sent down its mandate OF
affirmance to be entered BY that court.
The few surviving members OF the Rich
moDd bar Of that period Q85l) doubtless
well remember the reception accorded to
The mandate when the clerk presented IL to
,be Court Of Appeals. The then able and
president, Judge John j. Allen,
lsked in bis quiet and digni6ed manner.
. What Is that papers" When told that it
was mandate Of the Supreme Court Of the
United States affirming the judgment Of the
court In the case referred TO, he simply
said: "This court has nothing to do with
he papers," and no further notice was
AIKEN Of the matter. The writer does not
speak from personal knowledge. but he has
,ften beard the circumstance stated bv a
prominent lawyer, the late Powhatan
Roberts, Esq, who was then deputy clerk
II the court, and present on the occasion.
Certain II is that no entry was ever made
II the mandate by the court.
After the war. however, a different prac-
Ice was adopted by the Court Of Appeals,
being then very properly considered that
he principles underlying the question in
'olyed had been settled by the results OF
hat conflict.
Several cases have occurred In which the
supreme Court hse exercised appellate iuris-
fiction to revise the decisions Of the State
courts Of Virginia. aud so far as the Court
& Appeals Is concerned, that court has uni