After a judgment for the plaintiff in ejectment in the Union
Circuit Court of the State of Kentucky, a
habere facias
possessionem was awarded, and on the succeeding day, on motion
of the defendant, commissioners were appointed by he court
according to, the provisions of the occupying claimants' law of
Kentucky, to assess the damages and waste committed by the
defendant and the value of the improvements made on the land. The
commissioners valued the improvements at $1,350. F. did not appear
on the return of the inquisition, and judgment was rendered against
him for the sum so reported. Afterwards F. tendered a bill of
exceptions stating that he moved the court to quash the report of
the commissioners appointed to value the improvements, assess the
damages, &c., but the court refused to quash the same, to which
opinion he excepted and appealed to the Court of Appeals. A
citation was issued by the clerk of the Court of Appeals, which was
served. In that court, among others, F. assigned as error
"the plaintiff deriving his title from Virginia, the act or acts
of the State of Kentucky, on which the court has founded its
opinion, is repugnant to the compact with Virginia, therefore void
as to the case before the court, being against the Constitution of
the United States."
To bring a case within the protection of the seventh article in
the compact between Virginia and Kentucky, it must be shown that
the title to the land asserted is derived from the laws of Virginia
prior to the separation of the two states.
The clerk of the Union Circuit Court certifies that certain
documents were read in evidence, and among them a patent under
which, F. claimed, issued by the Governor of Kentucky, founded on
rights derived from the laws of Virginia. This Court cannot notice
this patent; it cannot be considered a part of the record.
In cases at common law, the course of the Court has been uniform
not to consider any paper as part of the record, which is not made
so by the pleadings, or by some opinion of the court referring to
it. This rule is common to all courts exercising appellate
jurisdiction according to the course of the common law. The
appellate court cannot know what evidence was given to the jury
unless it is spread on the record in proper legal manner. The
unauthorized certificate of the clerk that any document was read or
any evidence given to the jury cannot make that document or that
evidence a part of the record so as to bring it to the cognizance
of this Court. The Court cannot perceive from the record in the
ejectment cause that the plaintiff in error claimed under a title
derived from the laws of Virginia. It therefore cannot judicially
know that this suit was not a contest between two citizens claiming
entirely under the laws of the State of Kentucky. When the record
of the Union Circuit Court was transferred to the Court of Appeals,
the course of that court requires that the appellant or the
plaintiff in error shall assign the errors on which he means to
rely. The assignment in that court contains the first intimation
that the title was derived from Virginia, and that the plaintiff in
error relied on
Page 30 U. S. 249
the compact between those states. But this assignment does not
introduce the error into the record or in any manner alter it. The
Court of Appeals was not confined to the inquiry whether the error
assigned was valid in point of law. The preliminary inquiry was
whether it existed in the record. If, upon examining the record,
that court could not discover that the plaintiff had asserted any
right or interest in land derived from the laws of Virginia, the
question whether the occupying claimants' law had violated the
compact between the states could not arise.
In the view which has been taken of the record by the Court, it
does not show that the compact with Virginia was involved in the
case. Consequently the question whether the act for the benefit of
occupying claimants was valid does not appear to have arisen, and
nothing is shown on the record which can give jurisdiction to this
Court.
A review of the cases of
Harris v.
Dennie, 3 Pet. 292;
Craig v.
Missouri, 4 Pet. 410;
Owing v.
Norwood, 5 Cranch 344;
Miller
v. Nicholls, 4 Wheat. 312.
In the argument, the Court has been admonished of the jealousy
with which the states of the Union view the revising power
entrusted by the Constitution and laws of the United States to this
tribunal. To observations of this character the answer uniformly
given has been, that the course of the Judicial Department is
marked out by law; we must tread the direct and narrow path
prescribed for us. As this Court has never grasped at ungranted
jurisdiction, so it will never, we trust, shrink from the exercise
of that which is conferred upon it.
This was a writ of Error to the Court of Appeals of the State of
Kentucky to review a decision of that court affirming a judgment of
the Union County Circuit Court of that state involving the validity
of a law of the State of Kentucky called the "Special Occupying
Claimant Law."
The action of ejectment was commenced in the circuit Court of
Union County on the 20 May, 1822. At September term, 1822, William
Cockerell, the defendant, appeared, and at his instance as well as
of the plaintiff, an order of survey was passed requiring the
surveyor to lay off the land in controversy as either party should
require.
The plaintiff in the ejectment, after the filing of his
declaration, at September term, 1822, had leave to withdraw the
title papers filed by him for the purpose of the survey, as was
presumed.
At June term, 1823, a verdict and judgment was rendered for the
plaintiff on the demise of John Fisher, the plaintiff in error. On
the other counts in the declaration, which stated other demises, a
verdict and judgment was entered for the defendant.
Page 30 U. S. 250
The record specifies the written evidence in the cause as
follows:
"The following patent was the only paper read in evidence in
this cause. The following deeds, to-wit, John Fisher to Frederick
Ridgeley and Frederick Ridgeley and wife to James Morrison, were
filed among the papers but rejected by the court, and so marked by
the court, to-wit."
The patent and deeds so referred to are then set out in the
transcript.
The patent purports to have been issued in the usual form under
the seal of the Commonwealth of Kentucky, and the hand of the
governor, duly countersigned by the secretary of state, on 15 June,
1802, and
"that by virtue and in consideration of three military warrants,
No. 1115, 1125, and 1153, and entered 21 July, 1784, there is
granted by the said commonwealth unto John Fisher (habendum to him
and his heirs forever) a certain tract or parcel of land containing
six hundred acres, by survey bearing date 23 May, 1785, lying and
being in the district set apart for the officers and soldiers of
the Virginia continental line on the Ohio,"
&c. The metes and bounds of the granted lands are then
specially set out in the patent.
The two deeds referred to having been rejected as evidence for
some reason not stated, but to be inferred from the informality of
their authentication, and in consequence the issue on the two
counts which those documents were adduced to support having been
found for the defendant, it is unnecessary to state their contents.
The recovery was upon the title of the original patentee, John
Fisher, alone.
The court then proceeded, on the motion of defendant, to appoint
commissioners (in virtue and execution of the state law)
"to go on the land from which the defendant has been evicted in
this action and make assessment of what damage and waste the
defendant has committed since 20 May, 1822 (when the suit was
commenced) and the rent and profit accruing since 17 June, 1822
(the day of appearance to the action) and the value of improvements
made on said land, and of the value of said land at the time of
such assessment, regarding it as if such improvement had never been
made."
The report of the commissioners was returned to March
Page 30 U. S. 251
term, 1824, in which they say
"that there has been no injury or waste done upon the premises
by the occupant since 20 June, 1823, and they assess the
improvements made on the premises as follows:"
Clearing and enclosing forty-six acres of land, at
twenty dollars per acre . . . . . . . . . . . . . . 920
Dwelling house and various farm buildings . . . . . . 430
-----
1,350
For this sum the court gave judgment against the plaintiff, who
moved to quash the said report and reserved a bill of exception to
the refusal of the court so to quash.
Upon this last judgment the plaintiff sued out a writ of error
to the Court of Appeals in Kentucky, and made a special assignment
of the errors complained of pursuant to the law and practice of
that court. The error assigned was
"the plaintiff deriving title from Virginia, the act or acts of
the State of Kentucky on which this Court has founded its opinion
is repugnant as to the compact with Virginia, therefore void as to
the case before the court, being against the Constitution of the
United States."
The Court of Appeals affirmed the judgment of the circuit Court
of Union County, and the plaintiff prosecuted this writ of
error.
Page 30 U. S. 252
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
The plaintiff brought an ejectment in the Union Circuit Court
against the defendant, and in June term, 1823 obtained judgment, on
which a writ of "
habere facias possessionem" was awarded.
On the succeeding day it was ordered on the motion of the
defendant
"That Josiah Williams and others be, and they are hereby
appointed commissioners, who, or any five of whom, being first
sworn, do, on the second Saturday in July next, go on the lands
from which the said defendant has been evicted in that action, and
made assessment of what damage and waste the said defendant has
committed since 20 May, 1822, and the rent and profit accruing
since 17 June, 1823, and of the value of improvements made on said
land at the time of such assessment, regarding it as if such
improvement had not been made, all which they shall separately and
distinctly specify and report to the next term of this Court, until
which time this motion is continued. "
Page 30 U. S. 253
The report of the commissioners was made to the September term
following, and was continued. On 15 March, 1824 it was, on the
motion of the defendant, ordered to be recorded. The improvements
were valued at $1,350. John Fisher, the plaintiff in the ejectment
and defendant on this motion, did not appear, and judgment was
rendered against him for the sum reported to be due for
improvements. Afterwards, to-wit, on the 20th of the same month,
the said Fisher appeared and tendered the following bill of
exceptions, which was signed:
"Be it remembered that in this cause, the defendant moved the
court to quash the report of the commissioners appointed to value
the improvements, assess the damages, &c., but the court
refused to quash the same, to which opinion of the court the
defendant excepts,"
&c. The said Fisher then appealed to the Court of
Appeals.
A citation was issued by the clerk of the Court of Appeals,
which was served. Among the errors assigned by the plaintiff in
error was the following:
"The plaintiff deriving title from Virginia, the act or acts of
the State of Kentucky on which this Court has founded its opinion
is repugnant as to the compact with Virginia, therefore void as to
the case before the court, being against the Constitution of the
United States."
The cause was argued in the Court of Appeals in June, 1827, and
the judgment of the circuit court was affirmed. That judgment is
now brought before this Court by a writ of error.
The seventh article of the compact between Virginia and Kentucky
is in these words.
"That all private rights and interests of lands within the said
district, derived from the laws of Virginia prior to such
separation shall remain valid and secure under the laws of the
proposed state and shall be determined by the laws now existing in
this state."
This is the article the violation of which is alleged by the
plaintiff in error. To bring his case within its protection, he
must show that the title he asserts is derived from the laws of
Virginia prior to the separation of the two states. If the title be
not so derived, the compact does not extend to it, and the
plaintiff alleges no other error.
The judgment in the ejectment is rendered on a general verdict,
and the title of the plaintiff is not made a part of the
Page 30 U. S. 254
record by a bill of exceptions or in any other manner. The clerk
certifies that certain documents were read in evidence on the
trial, and among these is the patent under which the plaintiff
claimed. This patent was issued by the Governor of Kentucky, and is
founded on rights derived from the laws of Virginia. Can the Court
notice it? Can it be considered as part of the record.
In cases at common law, the course of the Court has been uniform
not to consider any paper as part of the record which is not made
so by the pleadings or by some opinion of the court referring to
it. This rule is common to all courts exercising appellate
jurisdiction according to the course of the common law. The
appellate court cannot know what evidence was given to the jury
unless it be spread on the record in proper legal manner. The
unauthorized certificate of the clerk that any document was read,
or any evidence given, to the jury, cannot make that document or
that evidence a part of the record, so as to bring it to the
cognizance of this Court. We cannot perceive, then, from the record
in the ejectment cause that the plaintiff in error claimed under a
title derived from the laws of Virginia.
The order made after the rendition of the judgment, directing
commissioners to go on the land from which the defendants had been
evicted and value the improvements, contains no allusion to the
title under which the land was recovered.
The plaintiff in error might have resisted this order by showing
that his title was derived from the laws of Virginia, and thus have
spread his patent on the record. He has not done so.
On moving to quash the report of the commissioners, a fair
occasion was again presented for making his patent the foundation
of his motion, and thus exhibiting a title derived from the laws of
Virginia. He has not availed himself of it. He has made his motion
in general terms, assigning no reason for it. The judgment of the
court overruling the motion is also in general terms.
The record, then, of the Union Circuit Court does not show that
the case is protected by the compact between Virginia and Kentucky.
This Court cannot know judicially that it was not a contest between
two citizens, each claiming entirely under the laws of that
state.
Page 30 U. S. 255
When the record of the Union Circuit Court was transferred to
the Court of Appeals, the course of that court requires that the
appellant or the plaintiff in error should assign the errors on
which he means to rely. This assignment contains the first
intimation that the title was derived from Virginia and that the
plaintiff in error relied on the compact between the two
states.
But this assignment does not introduce the error into the record
or in any manner alter it. The Court of Appeals was not confined to
the inquiry whether the error assigned was valid in point of law.
The preliminary inquiry was whether it existed in the record. If,
upon examining the record, that court could not discover that the
plaintiff had asserted any right or interest in land derived from
the laws of Virginia, the question whether the occupying claimants'
law violated the compact between the states could not arise.
The twenty-fifth section of the act to establish the judicial
courts of the United States, which gives to this Court the power of
revising certain judgments of state courts, limits that power in
these words.
"But no other error shall be assigned or regarded as a ground of
reversal in any such case as aforesaid than such as appears on the
face of the record and immediately respects the before-mentioned
questions of validity or construction of the said Constitution,
treaties, statute, commissions, or authorities in dispute."
If the view which has been taken of the record be correct, it
does not show that the compact with Virginia was involved in the
case. Consequently the question whether the act for the benefit of
occupying claimants was valid or not does not appear to have
arisen, and nothing is shown on the record which can give
jurisdiction to this Court.
The counsel for the plaintiff in error has referred to former
decisions of this Court laying down the general principle that the
title under a treaty or law of the United States need not be
specially pleaded, that it need not be stated on the record that a
construction has been put on a treaty or law which this Court may
deem erroneous, or that an unconstitutional statute of a state has
been held to be constitutional. It is sufficient if the record
shows that such misconstruction must have taken place or the
decision could not have been made.
Harris v.
Dennie, 3 Pet. 292, is a
Page 30 U. S. 256
strong case to this effect. That case recognizes the principle
on which the plaintiff in error relies, and says
"It is sufficient if from the facts stated such a question must
have arisen and the judgment of the state court would not have been
what it is if there had not been a misconstruction from some act of
Congress, &c.,"
but this misconstruction must appear from the facts stated, and
those facts can be stated only on the record.
In the case of
Harris v. Dennie, a special verdict was
found, and the court confined itself to a consideration of the
facts stated in that verdict. Goods in the custody of the United
States until the duties should be secured and a permit granted for
their being landed were attached by a state officer at the suit of
a private creditor. This fact was found in the special verdict, and
the state court sustained the attachment. This Court reviewed the
act of Congress for regulating the collection of duties on imports
and tonnage, and came to the opinion
"that the goods in the special verdict mentioned were not by the
laws of the United States under the circumstances mentioned in the
said verdict liable to be attached by the said Dennie under the
process in the said suit mentioned, but that the said attachment so
made by him as aforesaid was repugnant to the laws of the United
States, and therefore utterly void."
In this case, no fact was noticed by the court which did not
appear in the special verdict.
So in the case of
Craig v. Missouri. The parties, in
conformity with a law of that state, dispensed with a jury and
referred the facts as well as law to the court. The court, in its
judgment, stated the facts on which that judgment was founded. It
appeared from this statement that the note on which the action was
brought was given to secure the repayment of certain loan office
certificates, which a majority of the court deemed bills of credit
in the sense of the Constitution. This statement of facts made by
the court of the state, in its judgment in a case in which the
court was substituted for a jury, was thought equivalent to a
special verdict. In this case too, the court looked only at the
record.
We say with confidence that this Court has never taken
jurisdiction unless the case as stated in the record was brought
within the provisions of the twenty-fifth section of the Judicial
Act. There are some cases in which the jurisdiction of
Page 30 U. S. 257
the Court has been negatived that are entitled to notice.
Owings v. Norwood's
Lessee, 5 Cranch 344, was an ejectment brought in
the General Court of Maryland for a tract of land lying in
Baltimore County. The defendant set up as a bar to the action an
outstanding title in a British subject which, he contended, was
protected by the treaty of peace. Judgment was given for the
plaintiff, and this judgment, being affirmed in the Court of
Appeals, was brought before this Court. The judgment was affirmed,
and the Court said
"Whenever a right grows out of or is protected by a treaty, it
is sanctioned against all the laws and judicial decisions of the
states, and whoever may have this right, it is to be protected, but
if the party's title is not affected by the treaty, if he claims
nothing under a treaty, his title cannot be affected by the
treaty."
Upon the same principle, the person who would claim the benefit
of the compact between Virginia and Kentucky must show, and he can
only show it on the record, that his case is within that
compact.
The case of
Miller v.
Nicholls, 4 Wheat. 312, bears, we think, a strong
resemblance to this. William Nicholls, Collector, &c., being
indebted to the United States, executed on 9 June, 1798, a mortgage
to Henry Miller for the use of the United States for the sum of
$59,444, conditioned for the payment of $29,271. Process was issued
on this mortgage from the Supreme Court of the State of
Pennsylvania in March 1802, a
levari facias was levied,
the property sold, and the money, amounting to $14,530, brought
into court, and deposited with the prothonotary subject to the
order of the court.
On 22 December, 1797, the said Nicholls was found, on a
settlement, indebted to the Commonwealth of Pennsylvania in the sum
of $9,987.15, and judgment therefor was entered on 6 September,
1798. These facts were stated in a case agreed, and the following
question was submitted to the court:
"Whether the said settlement of the said public accounts of the
said William Nicholls, as aforesaid, on 22 Dec., 1797, was and is a
lien from the date thereof, on the
Page 30 U. S. 258
real estate of the said William Nicholls, and which has since
been sold as aforesaid."
On a rule made on the plaintiff in error to show cause why the
amount of the debt due to the commonwealth should not be taken out
of court, the attorney for the United States came into court and
suggested
"That the Commonwealth of Pennsylvania ought not to be permitted
to have and receive the money levied and produced by virtue of the
execution in the suit, because the said attorney in behalf of the
United States saith that as well by virtue of the said execution as
of divers acts of Congress, and particularly of an act of Congress
entitled 'An act to provide more effectually for the settlement of
accounts between the United States and receivers of public monies,'
approved 3 March, 1797, the said United States are entitled to have
and receive the money aforesaid, and not the said Commonwealth of
Pennsylvania."
Judgment was rendered in favor of the State of Pennsylvania,
which judgment was brought before this Court by writ of error.
A motion was made to dismiss this writ of error because the
record did not show jurisdiction in this Court under the
twenty-fifth section of the Judicial Act. It was dismissed because
the record did not show that an act of Congress was applicable to
the case. The court added
"The act of Congress which is supposed to have been disregarded,
and which probably was disregarded by the state court, is that
which gives the United States priority in cases of insolvency. Had
the fact of insolvency appeared upon the record, that would have
enabled this court to revise the judgment of the court of
Pennsylvania. But that fact does not appear."
In this case, the suggestion filed by the attorney for the
United States alleged in terms the priority claimed by the
government under an act of Congress which was specially referred
to. But the case agreed had omitted to state a fact on which the
application of that act depended. It had omitted to state that
Nicholls was insolvent, and the priority of the United States
attached in cases of insolvency only.
In this case, the act of Congress under which the United States
claimed was stated in the record, and the claim under it was
expressly made. But the fact which was required to
Page 30 U. S. 259
support the suggestion did not appear in the record. The court
refused to take jurisdiction.
In the case at bar, the fact that the title of the plaintiff in
error was derived from the laws of Virginia -- a fact without which
the case cannot be brought within the compact -- does not appear in
the record, for we cannot consider a mere assignment of errors in
an appellate court as a part of the record unless it be made so by
a legislative act. The question whether the acts of Kentucky in
favor of occupying claimants were or were not in contravention of
the compact with Virginia does not appear to have arisen, and
consequently the case is not brought within the 25th section of the
Judicial Act.
In the argument, we have been admonished of the jealousy with
which the states of the union view the revising power entrusted by
the Constitution and laws of the United States to this tribunal. To
observations of this character, the answer uniformly given has been
that the course of the Judicial Department is marked out by law. We
must tread the direct and narrow path prescribed for us. As this
Court has never grasped at ungranted jurisdiction, so will it
never, we trust, shrink from the exercise of that which is
conferred upon it.
The writ of error is dismissed, the Court having no
jurisdiction.
MR. JUSTICE BALDWIN dissenting.
I am compelled to dissent from the opinion of the Court in this
case for the following reasons:
The certificate of the clerk of the Court of Appeals, attached
to this record, is in these words:
"I, Jacob Swigert, Clerk of the Court of Appeals for the state
aforesaid, do hereby certify that the foregoing seventy-two pages
contain a transcript of the record and proceedings in the case
therein mentioned, and I feel 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 far, at least, as to give power to this
court to examine whether the judgment of the Court of Appeals is
erroneous or not."
On a motion to dismiss this cause for the want of jurisdiction,
the only question which arises is whether it comes
prima
facie within the twenty-fifth section of the Judiciary Act.
This must be decided on an inspection of the whole
Page 30 U. S. 260
record, and if it does appear that it presents any of the cases
therein provided for, the motion must be refused. When the record
comes to be judicially examined, this Court may be of opinion that
though the question did arise which brings their powers into
action, yet it did not come up in such a shape, or is not so stated
in the record of the Court of Appeals, that this Court can affirm
or reverse it for the specific cause assigned for error. If the
question appears in any part of the record, it is enough, in my
opinion, for jurisdiction. The manner in which it appears seems to
me only to be examinable after jurisdiction is entertained.
It appears on the record that the plaintiff read in evidence on
the trial of the cause a patent from Kentucky for six hundred acres
of land in pursuance of three military warrants, Nos. 1115, 1125,
and 1123, entered on 21 July, 1784, and surveyed 23 May, 1785. The
patent is set forth verbatim. As the State of Kentucky had no
existence in 1784 or 1785, when these warrants were entered and
surveyed, we cannot be judicially ignorant that these acts, as well
as the issuing of the warrants and the title founded on them, were
under the laws of Virginia.
As the compact between the two states is a part of the
Constitution of Kentucky, we cannot be ignorant of its existence
and that it relates to lands held in Kentucky under the laws of
Virginia. After the plaintiff in ejectment had recovered judgment,
it appears that the court appointed commissioners to assess the
value of the improvements made by the defendant on the land
recovered from him by the plaintiff. The commissioners filed their
report awarding $1,350, and the court rendered judgment for this
sum. The parties were then reversed. Fisher, the defendant, moved
the court to quash the proceedings; on their refusal, he sued out a
writ of error from the Court of Appeals summoning the plaintiff
Cockerell to
"show cause, if any he can, why a judgment obtained by him
against Fisher, in the Union Circuit Court, at the March term 1824,
for $1,350, the value of the improvements as assessed by the
commissioners appointed under the occupying claimant law, besides
costs, should not be reversed for the errors therein contained.
"
Page 30 U. S. 261
On the record's being removed into the Court of Appeals, Fisher,
among other reasons for reversing the judgment, assigned this.
"The plaintiff deriving his title from Virginia, the act or acts
of the State of Kentucky, on which the court has founded its
opinion, is repugnant as to the compact with Virginia; therefore
void as to the case before the court, being against the
Constitution of the United States."
The court gave a deliberate opinion on this exception, and
adjudged the occupying claimant law to be constitutional and
affirmed the judgment of the circuit court.
All this appears in the seventy-two pages of the record,
certified to us from the Court of Appeals. I do not feel authorized
to declare that what is so certified by the highest court is no
part of the record and judicially unknown to this Court, nor when
the record comes up, certified as one entire act, can I on a
question of jurisdiction summarily decide that one part is not as
much within judicial cognizance as another.
I cannot be ignorant that John Fisher, a plaintiff in ejectment,
claimed under a patent to himself founded on a warrant entry and
survey made in Virginia, and under her laws has recovered a
judgment for his land, and that the defendant in the same suit has
obtained a judgment against him for $1,350 under the laws of
Kentucky, which has been affirmed by the highest court in that
state. In this I cannot fail to see with judicial eyes that the
validity of a statute of a state has been drawn in question on the
ground of being repugnant to the Constitution of the United States.
It seems to me to present the very question arising under the
twenty-fifth section, clearly and definitely set forth,
sufficiently explicit at least for jurisdiction, and containing, in
my opinion, all the certainty requisite to enable this Court to
decide whether they will affirm or reverse the judgment of the
Court of Appeals.
The Court of Appeals did not think that the record of the
circuit court did not bring the great question directly and
distinctly for its consideration. It seems to me that the fact of
the plaintiff in ejectment's being saddled with a judgment of
$1,350 at the suit of a defendant for improvements necessarily
involves every question necessary to give this Court jurisdiction.
A
Page 30 U. S. 262
citizen of Kentucky has a right to question the validity of the
occupying claimant law on its alleged repugnancy to the
Constitution of the United States. Independent of the compact, this
Court would be bound to hear him on that question on a writ of
error from the Court of Appeals on a title wholly emanating from
Kentucky. It may be questioned whether he could set up the compact,
but he could at least claim the protection of the Constitution in
this Court. This is all that is necessary for jurisdiction.
We are not informed that it is necessary in the circuit courts
of Kentucky for a party moving to quash a proceeding like the one
contained in this record to specify the grounds. This motion does
not appear to have been overruled by that court for such a reason,
but solely on the validity of the law; the judgment of the Court of
Appeals was given expressly on the ground that it was not repugnant
to the Constitution of the United States.
When the state courts decide the merits of a judgment in favor
of the defendant in ejectment for his improvements, I am not
prepared to say that their records are not cognizable here and that
the constitutionality of the law under which they are rendered does
not arise on the judgment itself, and I do not know why we should
be more astute to the mode in which a question is presented on a
record than the supreme court of a state. It is not a settled rule
of law that reasons for the motion should be assigned of record;
that is a matter of practice to be regulated by rule. No reasons
are assigned of record in this Court on motions to quash, or errors
assigned on a judgment. They are stated to the court, and in my
opinion whenever a motion is made in any court to quash any
proceeding, the party moving may urge any reason showing it to be
void without specifying them on record, unless it is required by
some rule. If the Court of Appeals had refused to consider the
question on the record of the circuit court because the reasons and
grounds of the motion were not of record, we might, if the rule of
comity applies to decisions of state courts on questions affecting
the jurisdiction of this Court under the twenty-fifth section, have
made their decision the rule for ours. But in yielding to this
objection, we consider the record of the circuit court in an aspect
entirely different from
Page 30 U. S. 263
that in which it was viewed and solemnly acted on by the Court
of Appeals. The occupying claimants' laws are public acts, of which
all courts in Kentucky are bound to take judicial notice. The
proceeding of Cockerell against Fisher was conducted under the
immediate eye and order of the court; in its very nature, it
imported to be taken under those laws. There were no other laws
which would authorize such a judgment, and the validity of the
judgment involved the validity of the law.
But I apprehend that it is not necessary to give jurisdiction to
this Court that it should appear in the record of an inferior state
court that a question arises on the validity of a state law; we
have only to look to the record of the court to which we may issue
a writ of error, and whose judgment we must reverse or affirm; if
it appears there that the validity of a state law has been drawn in
question for the reasons set forth in the twenty-fifth section and
that the decision of the highest court is in favor of its validity,
the party against whom their judgment is given has a right to be
heard in this Court.
In this case, the writ of error from the Court of Appeals to the
circuit court most distinctly alleges the judgment to have been
under the occupying claimant law; the error assigned denies its
validity as repugnant to compact and Constitution, and the opinion
and judgment of the court affirmed the validity. I cannot,
therefore, consider this record as
coram non judice. The
question involved in it is as distinct to my mind and as
unavoidable as special pleading can make, and the plaintiff in
error has in my judgment an undoubted right to the opinion of this
Court, on the constitutional validity of the judgment rendered
against him by the Court of Appeals of Kentucky.
This cause came on to be heard on the transcript of the record
from the Court of Appeals for the State of Kentucky, being the
highest court of law in said state, and was argued by counsel, on
consideration whereof it is considered, ordered, and adjudged by
this Court that the writ of error in this cause be, and the same is
hereby dismissed for want of jurisdiction.
