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at the city of Washington one session to commence on the second Monday of January.(l) The associate justices shall have precedence according to the date of their commissions, or when the commissions of two of them bear date the same day, according to their respective ages.(2)
487. If, at any session of the supreme court, four justices thereof shall not attend on the day appointed for holding said session, such justice or justices as may attend shall have authority to adjourn said court from day to day, for twenty days after the time1 appointed for the commencement of said session, unless four justices shall sooner attend; and the business of said court shall not, in such case, be continued over to the next stated session thereof, until the expiration of said twenty days, instead of the ten days now limited by law.(3)
If it shall so happen, during any term of the said supreme court, after four of the judges shall have assembled, that, on any day, less than the number of four shall assemble, the judge or judges so assembling shall have authority to adjourn said court from day to day until a quorum shall attend, and, when expedient and proper, may adjourn the same without day.(4)
But any one or more of the justices attending may make all necessary orders touching any suit, process or proceedings returned to the court or depending therein preparatory to the hearing, trial, or decision thereof.(5)
488. Whenever, in the opinion of the chief justice, or, in case of his death, or inability, of the senior associate justice of the supreme court, a contagious sickness shall render it hazardous to hold the next stated session at the seat of government, he may issue his order to the marshal of the district within which the court is by law to be holden, directing him to adjourn such session to such other place, within the same, or an adjoining district, as he may deem convenient; and the marshal shall thereupon adjourn such court, by making publication thereof, in one or more public papers printed at the place by law appointed for holding the same, from the time he shall receive such order, until the time by law prescribed for commencing such session. And the district judges shall respectively, under the same circumstances, have power by the same means, to direct adjournments of the district and circuit courts within their several districts, to some convenient place within the same, respectively.^)
469. The associate justice resident in the fourth circuit shall attend at the city of Washington, on the first Monday of August annually, and shall have power to make all necessary orders touching any suit, action, appeal, writ of error, process, pleadings, or proceedings, returned to the court, or depending therein, preparatory to the hearing, trial, or decision of such action, suit, appeal, writ of error, process, pleadings, or proceedings: and all writs and process may be returnable to the court on the first Monday in August, in the same manner as to the session of the court, to be holden on the second Monday in January, and may bear teste on the first Monday in August, as though a session of the court was holden on that day; the clerk of the supreme court shall attend such justice on the first Monday of August, in each and every year, and make due entry of all such matters and things, as may be ordered by such justice; and at every such August session, all actions, pleas, and other proceedings, relative to any cause, civil or criminal, shall be continued over to the ensuing January session.(7)
d) Act 4th Mav, 1826.
(2) Act 24th September, 1789, sec. 1. —29th April, 1802, sec. 1.—24th February, 1807, sec. 5.
(j) Act 21st January, 1829, sec. 1.
(4) Ibid. sec. 2.
(5) Act April 29th, 1802, sec. 1.
(6) Act February 24th, 1799, sec. 7.
(7) Act 29th April, 1802, sec. 2.
490. The supreme court shall be attended, during its sessions, by the marshal of the district only, in which the court shall sit, unless the attendance of the marshals of other districts be required by special order of the court.(l)
491. All the records and proceedings of the court of appeals existing previous to the adoption of the present constitution, are deposited in the office of the clerk of the supreme court of the United States, who is required to give copies thereof to any person requiring and paying for them, in like manner, as copies of the records and other proceedings of such court are by law directed to be given: Which copies shall have like faith and credit, as all other proceedings of the said court.(2)
495J. The chief justice has a salary of five thousand, and each of the associate judges four thousand five hundred dollars per annum.(3)
Original Jurisdiction of the Supreme Court.
In what cases existing—may issue writs of prohibition and mandamus, of ne exeat and injunction—when 493
Art. 493. The supreme court has exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens, and except also between a state and citizens of other states, or aliens, in which latter case it has original, but not exclusive jurisdiction. And has exclusively, all such jurisdiction of suits or proceedings against ambassadors, or other public ministers, or their domestics or domestic servants, as a court of law can have consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors, or other public ministers, or in which a consul or vice-consul shall be a party. And the trial of issues in fact in the supreme court, in all actions at law against citizens of the United States, shall be by jury.(4)*
(1) Act 9th June, 1794, sec. 7. (3) Act 23d Sept 1789.—20th Feb.
(2) Act 8th May, 1792. 1819.
(4) Act 24th September, 1789, sec. 13.
• If a consul being sued in a state court, omit to plead his privilege of exemption from the suit, and afterwards on removal of the judgment of the inferior court, to a higher court by writ of error claim the privilege, the omission is not a waiver of the privilege. A consul is exempt from suit in a state court.—Davis v. Packard and al. 6 Pet. 41. 7 Pet. 276.
The jurisdiction of the supreme court, extends to controversies between two or more states.—New York v. Connecticut, 4 Dall. 3. New Jersey v. New York, 5 Pet. 284. Between a state and foreign states, and to suits by a state against citizens of a different state. But no state can enforce its penal laws in the courts of the United States.—Cohens v. Virginia, 6 Wheat. 399.
But to give jurisdiction to the supreme court, on account of the interest which a state has in the controversy, the case must be one in which the state is either nominally or substantially the party.—Fowler v. Lindsey, 3 Dall. 411. New York v. Connecticut, 4 Dall. 3. Bank of the United States v. Planters' Bank, 9 Wheat. 904.
A state may proceed originally in the supreme court for the purpose of contesting the right of soil.—New York v. Connecticut, 4 Dall. 3.
The grant of original jurisdiction to this court does not imply exclusive jurisdiction.—Cohens v. Virginia, 6 Wheat. 400.
The supreme court can possess original jurisdiction in no cases other than those described in the constitution: and an act of congress granting original jurisdiction not warranted by the constitution is void.—Ibid. Marbury v. Madison, 1 Crunch, 137.
The supreme court shall have power to issue writs of prohibitiou to the district courts, when proceeding as courts of admiralty and maritime jurisdiction, and writs of mandamus, in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.(l)*
Writs of tie exeat, and of injunction, may be granted by any judge of the supreme court, in cases where they might be granted by the supreme or a circuit court; but no writ of ne exeat shall be granted unless a suit in equity be commenced, and satisfactory proof be made to the court or judge granting it. that the defendant designs quickly to depart from the United States, nor shall a writ of injunction be granted to stay proceedings in any court of a state; nor shall such writ be granted in any case, without reasonable previous notice to the adverse party, or his attorney, of the time and place of moving for the same.(2)f
Appellate Jurisdiction of the Supreme Court.
In what cases 494
By writ of error to U. S. courts 495
certain cases 496
Time when such writ may be
Security on writ of error 498
On reversal judgment to be render-
By writ of error to state courts 500
By appeal from circuit courts on
—when opinions of judges are op-
(1) Act 24th September, 1789, sec. 13. (2) Act 2d March, 1793, sec. 5.
The authority given to the supreme court by the act establishing the judicial courts to issue writs of mandamus to public officers is not warrantedT>y the constitution, lb. It may issue a mandamus to a circuit court commanding the court to sign i bill of exception.—Exparte Crane, 5 Pet. 190.
• A mandamus will not be granted by the supreme court to a district judge, commanding him to issue a warrant in a case in which he acts in a judicial capacity and determines against issuing it. A judge cannot be compelled to act according to the dictates of any judgment but his own.—United States v. Lawrence, 3 Dall. 42.
Such court may issue the writ of Habeas Corpus ad subjiciendum to inquire into the cause of commitment when the party is imprisoned by order of any other court of the United States.—Exparte Bollman and Swartwout, 4 Cranch, 75, 3 Cranch, 448. Exparte Kearny, 7 Wheat. 41-2. But such writ does not lie to bring up one confined by a ea. sa. in a civil suit.—Exparte Wilson, 6 Cranch, 52. S ;ch court may also issue the writ of habeas carpus ad prosequendum, testificandum, et deliberandum.—Burford's case, 3 Cranch, 448\ But it is not authorized to award the writ of habeas corpus ad respondendum, nor ad satisfaciendum, nor ad faciendum 'J recipiendum.—Ibid. Ib. Quere?
But this court having no power to revise the judgment of the circuit courts, by writ of error in any case where a party has been convicted of a public offence, cannot grant a habeas corpus where a party has been committed for a contempt adjudged by a court of competent jurisdiction.—Exparte Kearny, 7 Wheat 38.
If upon the return of the habeas corpus the commitment appear to be irregular, it is unimportant, as the supreme court will proceed to do what the court below ought to have done.—Exparte Bollman and Swartwout, 3 Cranch, 114.
On habeas corpus for a prisoner a certiorari may issue from the supreme court to the clerk of the circuit court to certify the record by which the cause of commitment may be examined, and its legality investigated.—Exparte Burford, 3 Cranch. AM.
t The supreme court has power to bail one committed for trial on a criminal charge by a district judge.—United States v. Hamilton, 3 Dall. 18.
Art. 494. The supreme court shall have appellate jurisdiction from the circuit courts and courts of the several states, in cases especially provided for.(l)»
495. Final judgments and decrees in civil actions other than cases of equity, of admiralty and maritime jurisdiction and prize and no prize in a circuit court, brought there by original process, or removed there by appeal from a district court, where the matter in dispute exceeds the value of two thousand dollars exclusive of costs, may be re-examined and reversed or affirmed in the supreme court upon writ of error: The citation in such case being signed by a judge of such circuit court, or justice of the supreme court, the adverse party having at least thirty days' notice. (3)
496. There shall be no reversal on such writ of error for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court or such plea to a petition or bill in equity as in the nature of a demurrer, or for any error in fact.(4)
497. Writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos
(1) Act24th September, 1789, sec. 13. (3) Act24th September, 1789, sec. 22.
• The supreme court has appellate jurisdiction both as to law and fact, in all cases mentioned in the third article of the constitution, other than those in w hich their jurisdiction is exclusive, or original, with such exceptions, and under such regulations as congress shall make.—Wilson v. Mason, 1 Cranch, 91.
Hence it nas appellate jurisdiction in all cases where original jurisdiction is given to the inferior courts with such exceptions and under such regulations only as congress may make.—Durosseau v. United States, 6 Cranch, 307.
Its original jurisdiction is founded on the character of the parties, to a suit, its appellate jurisdiction on the character of the case. Hence in a case arising under the laws of the United States brought in a state court, to which a state is a party, a writ of error will lie.—Cohens v. Virginia, 6 Wheat. 392.
The supreme court has appellate jurisdiction only in cases where it is given by
the acts of congress. The constitution and law, must concur in order to vest it
United States v. Moore, 3 Cranch, 170. Durosseau v. United States, 6 Cr. 212. Wilson v. Mason, 1 Cr. 91. Wiscart v. Dauchy, 3 Dall. 237.
And a compact between the legislatures of two states since the adoption of the constitution, in relation to titles to land and the mode in which the courts should determine them, cannot deprive the supreme court of such jurisdiction.—Wilson v. Mason, 1 Cr. 92.
If a suit be pending in a circuit court, the supreme court will not entertain a case stated by the counsel; nor will it take cognizance of a cause not regularly brought before it.—Dewhurst v. Coulthard, 3 Dall. 409. Lanusse v. Barker, 3 Wheat. 101. United States v. Tenbrock, 2 Wheat. 248.
The judge who has tried a cause in a circuit court, is not excused from sittingin the supreme court, when such cause is brought before that court on appeal or writ of error.—Shirras v. Craig, 7 Cranch, 42.
Congress has not given to the supreme court, appellate jurisdiction, by writ of error from courts of the United States in criminal cases. The supreme court exercises such appellate power only in cases in which the opinions of the judges of the circuit court are opposed.—United States v. More, 3 Cranch, 159. United States v. La Vengeance, 3 Dall. 301.
The appellate jurisdiction given to the supreme court by the constitution, (art. 3, sec. 2,) being with such exceptions and under such regulations as congress shall make; if congress has provided no rule, the court cannot exercise appellate jurisdiction; if the rule is provided, it cannot be departed from.—Grayson v. Virginia, 3 Dall. 320.
mentis, or imprisoned, then within five years as aforesaid exclusive of the time of such disability.(l)*
498. Every justice or judge signing a citation on any such writ of error, shall take good and sufficient security that the plaintiff in error shall prosecute his writ with effect and answer all damages and costs if he fail to make his plea good. But such security on any writ of error which shall not be a supersedeas and stay of execution shall be only to such an amount as, in the opinion of the justice or judge taking the same shall be sufficient to answer all such costs as upon an affirmance of the judgment, or decree may be adjudged to respondent in error.(2)f
(1) Act 24th September, 1789, sec. (2) Act 24th September, 1789, sec. 22. 22.—Act December 12th, 1794, sec. 1, 2.
• And the like limitation is applied to bills of review.—Thomas v. Harvie, 10 Wheat. 146.
The supreme court, in the exercise of its ordinary appellate jurisdiction, can take copnizance of no cause until a final judgment or decree shall hare been made in the inferior court. Though the merits of the cause may have been substantially decided, while- any thing, though merely formal, remains to be done, this court cannot pass upon the subject.—Life and Fire Insurance Companyvf New York v. Adams, 9 Peters, 574.
A writ of error lies to the circuit court of the district of Columbia to remove a judgment, awarding a peremptory mandamus to admit the defendant, in error to office, where the matter in dispute is of sufficient value.—Col. Ins. Co. v. Whee'.right, 7 Wheat. 534.
It lies on a bill of exceptions to instructions by the court below, determining on a challenge of a juror for cause—Mima v. Hepburn, 7 Cr. 290; and to a refusal by the court below to rule the party to grant over of letters testamentary.—-Wilson v. Codmans, 3 Cr. 193.
It is error in the court below to entertain a cause, though by consent of parties, of which they have not jurisdiction; and the plaintiff in error may assign for error, the want of jurisdiction in the court below, to which, as plaintiff, he had chosen to resort.—Capron v. Van Noorden, 2 Cr. 126.
A writ of error, accompanied by citation, may issue for the removal of judgments in favour of the United States, into a superior court; though no suit can be commenced or prosecuted against them; the acts of congress not authorizing such suit—Cohens T. Virginia, 6 Wheat. 411, 412.
If a bill of exceptions state generally, that the court below instructed the jury that the several matters and things allowed and proved, were not sufficient to bar the plaintiff, nor constituted any defence, yet, a writ of error thereon will be sustained. and the court will look through the record to ascertain whether the instructions should be different.—Otis v. Walter, 2 Wheat. 22. Sergt. Con. L. 36.
If there be a general verdict, subject to the opinion of the court, on a statement of facts which appear on the record, the supreme court will consider the facts, and dec.de according to the law arising upon them.—Faw v. Roberdeau's Ex. 3 Cr. 174. Tucker v. Oxley, 5 Cr. 34. Brent v. Chapman, 5 Cr. 358. If the verdict be subject to the opinion of the court on points reserved, and judgment be entered accordingly, and there be no statement of facts or points reserved upon the record, the judgment will be reversed, and a venire facias de novo awarded. The facts should appear so that the judgment may be reversed or affirmed on its merits.— Smith v. Delaware Ins. Co. 7 Cranch, 434.
A writ of error does not lie to reverse the judgment of a circuit court in a civil action^arried to the circuit court from a district court by writ of error:—United States v. Goodwin, 7 Cr. 108. United States v. Gordon, ibid. 287. United States v. Ten Brock, 2 Wheat 248: nor upon an interlocutory judgment:—4 Dall. 22. 7 Cr. 597. 3 Dall. 401: nor to the decision of a matter within the discretion of the court below.—Young v. Clark, 7 Cr. 569. United States v. Evans, 5 Cranch, 280. Welsh T. Mandeville. Evans v. Philips, 4 Wheat. 73. Woods v. Young, 4 Cr. 237. Marine Ins. Co. v. Hodgson, 6 Cr. 217, 5 Cr. 187. Henderson v. Moore, 5 Cr. 11. Bsrr v. Gratz, 4 Wheat. 213. Moss v. Biddle, 5 Cr. 358. Mandeville v. Wilson, ib. 17.
No writ of error lies to a district court, having the original jurisdiction of a circuit court, if the act establishing such district court direct thai a writ of error shall