Under the twenty-fifth section of the Judiciary Act of 1789, ch.
20, where the construction of any clause in the Constitution or any
statute of the United States is drawn in question in any suit in a
state court, the decision must be against the title or right set up
by the party under such clause of the Constitution or statute or
this Court has no appellate jurisdiction in the case.
It is not sufficient that the construction of the statute was
drawn in question and that the decision was against the title of
the party; it must appear that his title depended upon this
statute.
Where in such a case the validity of a statute of any state is
drawn in question upon the ground of its being repugnant to the
Constitution of the United States and the decision has been in
favor of its validity, it is necessary to the exercise of the
appellate jurisdiction of this Court that it should distinctly
appear that the title or right of the party depended upon the
statute.
The opinion of the court, or the reasons given for its judgment
(unless in the case of instruction to the jury spread upon the
record by a bill of exceptions) form no part of the record within
the meaning of the above twenty-fifth section. Nor are they made a
part of the record in Tennessee by the local law of that state
requiring the judges to file their opinions in writing among the
papers in the cause.
No orders in the state court after the removal of the record
into this Court (not made by way of amendment, but introducing new
matter) can be brought into the record here. The cause must be
heard and determined upon the record as it stood when removed.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a writ of error to a judgment rendered in the
Page 25 U. S. 118
highest court for the State of Tennessee; consequently this
Court can exercise no other jurisdiction in the case than is given
by the 25th section of the Judiciary Act.
The counsel for the plaintiff in error contend 1st that an act
of Congress has been drawn into question in the state court and
that the decision has been against that act.
2d. That an act of the Legislature of Tennessee which impairs
the obligation of a contract has been drawn into question and that
the decision has been in favor of the party claiming under that
act.
As preliminary to a consideration of these points it is
necessary to inquire whether some additional papers which have been
brought up by a certiorari constitute a part of the record.
These papers are the opinion of one of the judges which is
supposed to have been delivered and filed as the opinion of the
court that decided the cause and some proceedings which took place
in the same court after the record had been removed into this Court
by writ of error.
1. Is the opinion a part of the record?
As a general proposition, every gentleman of the profession will
without hesitation answer this question in the negative. An opinion
not given to the jury, pronounced after a verdict was rendered and
consequently having no influence on that verdict, which states
merely the course of reasoning which conducted the court to its
judgment may explain the views and motives of the court, but does
not form a part of its judgment and cannot constitute a part of the
record.
The counsel for the plaintiff does not contend for the general
principle, but insists that an act of the Legislature of Tennessee
makes the opinion a part of the record in the courts of that
state.
An act passed in the year 1809 "to establish circuit courts and
a Supreme Court of Errors and Appeals" enacts
"That the judges of the Court of Errors and Appeals as well as
the circuit court judges shall, as to the decisions on all material
points, file their opinions in writing among the papers of the
cause in which such opinion may be given. "
Page 25 U. S. 119
This sentence amounts to no more than a provision that the
opinion of the judges shall appear and shall be preserved with the
other papers; but does not make that opinion a part of what is
technically denominated "the record," more than the other papers in
the cause among which it is filed. Depositions, and exhibits of
every description are papers in the cause and, in one sense of the
word, form a part of the record. In some states they are recorded
by direction of law. But in a jury cause they constitute no part of
the record on which the judgment of an appellate court is to be
exercised unless made a part of it by bill of exceptions or in some
other manner recognized by law. But the plaintiff relies on the
succeeding sentence as making the opinions of the judges a part of
the record. That sentence is in these words:
"And where a writ of error shall be allowed to reverse the
judgment of any circuit court in any cause, the clerk thereof shall
send a transcript of the opinion of the judge to the Court of
Errors and Appeals, with the balance of the record in the cause
properly certified."
It is contended that the words "balance of the record" show the
intention of the legislature that the opinion of the judge shall
constitute a part of that which is technically the record.
The capacity of a legislature to control the proceedings of
courts is not questioned, and if its will be unequivocally
declared, that will must be obeyed, but in construing a law,
implications are not to be drawn from careless expressions which
would produce unreasonable results and subvert the usual course of
legal proceedings. Can the opinion of the judge introduce any fact
into the cause? Where a judgment is rendered on a special verdict,
for example, can he, by an opinion filed ten days afterwards,
control the facts found in that verdict? Or can he, by anything
inserted in his opinion, warrant any legal inferences which the
verdict itself would not justify, or in any manner change the legal
effect of the finding? If the opinion cannot produce these results,
for what purpose is it introduced into the record?
It can be introduced for no other purpose than to suggest to the
superior court those arguments which might otherwise
Page 25 U. S. 120
escape its notice, which operated in producing the judgment and
which, in the opinion of the legislature, ought to be weighed by
the superior court before that judgment should be reversed or
affirmed. If the judgment should be correct, although the
reasoning, by which the mind of the judge was conducted to it
should be deemed unsound, that judgment would certainly be affirmed
in the superior court. We cannot therefore imply from the loose
expression which has been cited so extraordinary a result as that
the opinion of the court, filed after judgment as an argument
should be considered as a part of what is technically denominated
the record or should be a supplement to the verdict. In the present
case, the opinion which was filed has been inspected, and seems to
have been founded on a construction of the laws of the state
without calling into question the Constitution of the United States
or any act of Congress. This, however, is not relied on, because,
as has been stated, the opinion has no other influence on the cause
than it would have had if published in a book of reports.
If the court could have doubted on the proper construction of
this section, the fact that it has never been understood in the
courts of the state, in the sense for which the counsel for the
plaintiff in error now contends would be conclusive on the
question. It is also not entirely unworthy of remark that so much
of the section as requires the judges of the circuit court to file
their opinions in writing, was repealed before the judgment in this
case was pronounced; consequently that part of the section which
contains the words by which the doubt was created form no longer a
part of the law.
The certiorari has also brought up a supplemental record which
contains a motion made in the state court by the plaintiff in error
after the cause had been removed into this Court to amend the
record or entries of the judgment by inserting the questions which
were decided by the judges. The reasons for and against this motion
are spread upon the record, and the facts which would give
jurisdiction to this Court are asserted by the one party and denied
by the
Page 25 U. S. 121
other. The court took time for advisement, and does not appear
to have granted or rejected the motion.
This Court is decidedly of opinion that no orders made in the
court of the state after the removal of the record into this Court
by writ of error, not made by way of amendment but introducing new
matter, could be brought into it or could in any manner affect it.
The cause must be tried on the record as it stood when removed, not
upon the subsequent proceedings which were pressed in the state
court after its final judgment was given. In the present case,
nothing is before the court but the original record.
That record exhibits a caveat against the issuing of a grant on
a survey made for the defendant, and assigns various causes why it
should not be issued. The plaintiff claimed under a patent from the
State of Tennessee, and the caveat was the proper process to
contest the right of the defendant. On the trial, a jury, in
pursuance of the Act of the legislature of that state of 1807, ch.
1. sec. 8., was "empanelled and sworn for finding such facts as are
material to the cause, and not agreed on by the parties." The jury
found, 1st, that on 3 May, 1784, Ezekiel Norris made his entry in
the office of John Armstrong, entry taker of western lands,
reciting the words of the entry. In the margin, the following words
are inserted, "detained for nonpayment."
2d. That on 18 November, 1815, a duplicate warrant of survey was
issued by the Commissioner of West Tennessee to the said Norris, a
copy of which is annexed.
3d. The 3d fact is that the entry was special, and the 4th that
the tract of land which the entry called to adjoin was
notorious.
5th. That the original warrant, No 2047, to Ezekiel Norris,
issued and was filed in the Comptroller's Office of North Carolina
without any endorsement thereon; that it was detained for
nonpayment. The copy of the warrant is found and is incomplete,
being without the signature of John Armstrong, the entry taker.
The caveatee required the jury to find as a fact that the
purchase money was paid by Norris and that the memorandum in the
margin "detained for nonpayment" was a
Page 25 U. S. 122
fraudulent entry. The jury refused to find this fact, and in its
stead found
"That it is not proved to them that the consideration, at the
rate of �10 per hundred for every hundred acres for the entry of
the said Ezekiel Norris in question was duly paid to John
Armstrong, entry taker, &c., and that afterwards it was falsely
and fraudulently inserted in the margin of the entry book
containing said entry, and opposite to the same, by some person,
'detained for nonpayment.'"
The act of North Carolina, which authorized entries to be made
in John Armstrong's office, contains the following enactment:
"That every person claiming, before he shall be entitled to
enter a claim for any of the said lands, shall pay into the hands
of the entry taker, at the rate often pounds in specie, or in
specie certificates at their nominal value, &c., for every
hundred acres so entered."
The 19th section directs every entry taker within the state to
make out and deliver to the surveyor, on or before the first day of
April and the first day of October annually, the warrants for the
several entries (which are not disputed) made in his office, with
an endorsement prescribed by law, showing the number and date of
the entry.
The Circuit Court for the County of Lincoln decided that
Williams, the caveator, had the better right. This judgment was
carried to the Court of Errors and Appeals by writ of error, where
it was reversed and the caveat dismissed.
That judgment is now before this Court, and in considering it we
are confined to the inquiry whether the record shows any
misconstruction of an act of Congress or of the Constitution of the
United States.
In 1789, North Carolina ceded her western territory to the
United States, reserving to herself the right of perfecting titles
in all cases where entries had been made according to law.
Under this reservation, several acts were passed directing
warrants of survey to be issued on entries made in John Armstrong's
office, where the purchase money had been or should be paid.
In 1796, Tennessee was erected into a state. In 1803, North
Carolina entered into a compact with the State of
Page 25 U. S. 123
Tennessee in which the former ceded to the latter the power to
issue grants and perfect titles to all claims of land lying in the
said state, which power had been reserved to herself by North
Carolina in her acts ceding her then western territory to the
United States. This compact was assented to by Congress.
In 1806, Congress passed an act ceding to the State of Tennessee
all the rights of Congress to lands lying east and north of a line
described in the act.
The land in controversy is within the territory thus ceded by
Congress.
If any stipulation in the compact between North Carolina and
Tennessee could have affected the controversy between Williams and
Norris, it must have been because the title of Norris came within
the reservation made by the State of North Carolina in her act of
cession to Congress. That reservation was the subject of the
compact. As the controversy was not between two persons claiming
under North Carolina, but between a person claiming under North
Carolina and one claiming under the State of Tennessee, and the
decision was in favor of the title set up under North Carolina, we
cannot perceive how that decision can be considered as a violation
of the compact. North Carolina stipulates that titles should be
issued by the State of Tennessee for lands to which there were
valid claims under her laws, and for which patents might have been
issued by her had the compact not been made. If the title of Norris
was valid according to the laws of North Carolina, then the
decision in his favor is in pursuance of the compact; if it was not
valid according to those laws, then the case is not within the
compact. In either view of it, the compact has not been
violated.
The act which gives the sanction of Congress to this agreement
also cedes to Tennessee a large territory comprehending the lands
in controversy. This cession is made on several conditions, one of
which respects all existing claims to lands under the State of
North Carolina. Its operation is understood to be, so far as it can
affect the case now before the Court, precisely the same with that
of the compact between the two states. The same observations
Page 25 U. S. 124
apply to it as were applied to that instrument. The title for
the benefit of which it was intended, if it has any influence in
the case, has prevailed. Consequently neither the compact between
the states nor the act of Congress which assents to that contract
and which confers on the State of Tennessee the power to perfect
titles in the district of country which comprehends the lands in
controversy can have been violated.
A point of rather more difficulty remains to be considered. It
is contended that the validity of a statute of the State of
Tennessee has been drawn into question in this case on the ground
of its being repugnant to the Constitution, and the decision has
been in favor of its validity.
The act supposed to be unconstitutional is "An act for the
relief of Ezekiel Norris."
It is not stated in the record that the constitutionality of
this act was drawn in question, and the 25th section of the
Judiciary Act declares that
"No error shall be assigned or regarded but such as appears on
the face of the record and immediately respects the before
mentioned questions of validity, or construction of the said
Constitution,"
&c. The case of
Miller v.
Nicholls, 4 Wheat. 311, has been relied on to prove
that it is not necessary to the jurisdiction of the Court that the
record should, in terms, state a misconstruction of the act of
Congress or that it was drawn in question. It is sufficient to give
the Court jurisdiction that the record should show that an act of
Congress was applicable to the case.
The case of
Miller v. Nicholls was a claim filed by Mr.
Dallas, the attorney of the United States, for a sum of money
brought into a state court of Pennsylvania to be disposed of by the
court. The money belonged to a debtor of the United States, who was
also indebted to the State of Pennsylvania. The court decreed the
money to the state in pursuance, it is presumed, of an act of the
legislature giving the state a preference. The case was brought, by
writ of error, into this Court upon the allegation that the
judgment was in violation of the act of Congress which gives
priority to the United States in all cases of insolvency. This
Court dismissed the writ of error because, the fact of
Page 25 U. S. 125
insolvency not having been shown, it did not appear from the
record that the act of Congress or the constitutionality of the
state law was drawn into question. The Court added that the record
need not state in terms a misconstruction of the act of Congress or
that it was drawn in question.
The act of Congress applies to every insolvent debtor of the
United States, and gives them priority as to all the property of
the debtor which he possessed when the insolvency took place, but
it applies only to cases of insolvency. Had the record shown that
this was a case of insolvency, so that the act of Congress applied
to it, that act must have been misconstrued or its obligation
denied when the court decreed the money to the State of
Pennsylvania, and the Court was of opinion that the act could not
have been evaded by the omission to refer to it in the judgment or
to spread it on the record.
To apply the principle of that case to this, it will be
necessary to show that the title of Norris depended on the act
passed in his favor by the Legislature of Tennessee and that the
act was repugnant to the Constitution.
That act is in these words:
"Be it enacted . . . that the commissioner of West Tennessee be
and he is hereby authorized to issue to Ezekiel Norris,
certificates or warrants to the amount of 2,280 acres, being the
amount of two entries, No. 2,046 for 1,000 acres, and No. 2,047 for
1,280 acres, on which no warrants or grants were issued, provided
that the said Ezekiel Norris shall produce sufficient evidence to
the said commissioner that the consideration for said entries was
paid and that no warrant or grant ever issued on said entries."
When this act passed, a patent had been granted by the State of
Tennessee to the plaintiff in error comprehending a part of the
land covered by the entry of Norris. If its effect was to annul
that patent and to give a new title to Norris, the act would come
within the decision of this Court in the case of
Fletcher v.
Peck as a law impairing the obligation of contracts. In
determining whether such was its effect, it is necessary to inquire
whether Norris' entry was absolutely void or gave an incipient
title, capable of being
Page 25 U. S. 126
carried into grant. If the purchase money was paid, the entry
was valid. If not paid, the entry might be void or only voidable.
The words of the act under which it was made have been cited, and
may admit of either construction. It is a question for the
legislature and courts of the state, and its decision the one way
or the other would not be repugnant to the Constitution of the
United States. It is apparent that the Legislature of North
Carolina has not considered these entries where the purchase money
was not paid at the time as being absolutely void, but has supposed
them to be capable of being perfected and carried into grant as the
legislature might direct.
In 1794, the comptroller was directed to issue warrants in all
cases in which the purchase money had been paid.
In 1796, it was enacted that no grants should issue on warrants
on entries made in John Armstrong's office unless it should appear
by Armstrong's books or other sufficient testimony that the
purchase money had been paid. The next succeeding section of the
same act authorizes any person entitled to such entry to pay into
the Treasury the amount or balance of the purchase money, upon
which a warrant may be issued.
In 1798, the legislature appointed commissioners to investigate
the frauds suggested to have been committed in the secretary's
office, and directed that no grant should issue on warrants
obtained on entries which the commissioners might deem
fraudulent.
The Act of 1799, ch. 7. sec. 16, directs warrants to issue on
all entries where the requisites of the law have been or shall be
complied with.
The legislation of North Carolina to the year 1803 proceeds upon
the idea that the entries made in John Armstrong's office for which
the purchase money had not been paid were not absolutely void, but
might be made good by paying the purchase money or such part of it
as remained due. The right seems to have been considered as
preserved and suspended until the purchase money should be paid. In
this state of things, the power of perfecting titles, which had
been retained by North Carolina in her Cession Act, was transferred
to Tennessee on condition that titles
Page 25 U. S. 127
should be perfected, or entries made, under the laws of that
state according to the requisites of those laws.
In 1806, c. 1. sec. 45, the Legislature of Tennessee appointed
commissioners to decide on the validity of entries, with directions
to admit no warrants on entries made in John Armstrong's office if
it may appear to the said commissioners that the purchase money has
not been paid.
By the Act of 1807, c. 20. secs. 25 and 29, it is enacted that
where it shall appear to either of the commissioners that entries
have been made in John Armstrong's office on which the purchase
money has been paid in whole or in part, warrants may issue for so
much land as has been paid for. But it is provided that the person
exhibiting such claim shall produce a certificate from the
Comptroller of North Carolina showing what sum was paid on the said
entry. This act was continued in force till 1 January, 1815. In
October, 1815, an act passed directing that there should be one
commissioner in East and one in West Tennessee, each of whom should
exercise the powers which had been vested in commissioners by the
act of 1806.
We do not understand that the propriety or obligation of these
acts has ever been questioned by the courts of either North
Carolina or Tennessee. We do not understand that the courts of
either state have ever questioned the legislative construction of
the act opening the office in which this entry was made. That
construction is that entries received by John Armstrong, though not
accompanied by the purchase money, were not absolutely void, but
would become valid should the purchase money be afterwards paid,
and that such proof of payment might be received as the legislature
should prescribe. It cannot be doubted that numerous titles are
held under this construction of the law. Its correctness or
incorrectness does not seem to involve any constitutional question
or any question which can give this Court jurisdiction in a cause
which has been determined in a state court.
Had the claim of Ezekiel Norris been decided by the
commissioners acting under the general law, it would probably never
have been contested. What difference is there, so far as respects
its constitutionality, between the
Page 25 U. S. 128
act passed in his particular case and the act containing a
general reference of all cases of the same description to the
commissioner? The difference consists solely in this: the general
act admits no other proof of payment than a certificate from the
Comptroller of North Carolina; the particular act authorizes the
commissioner to establish the claim on sufficient evidence -- that
is, we presume, on such evidence as is generally admissible in a
court of justice. We know of no principle which could impose on the
legislature of the state the necessity of exacting from the
claimant, under an entry made in John Armstrong's office, as
indispensable to the establishment of his claim, a certificate from
the Comptroller of North Carolina that the purchase money had been
paid. The act of 1794 left the fact of payment open to legal proof.
The act of 1796 required that it should appear by Armstrong's books
or other legal testimony. If, then, the general act of Tennessee
had allowed the commissioner to issue warrants on sufficient proof,
such act might have been questioned on the ground of policy, but
not of right.
If this be correct -- if the legislature might have dispensed
with this testimony in a general law -- why may it not be dispensed
with in a particular law, where its effect on the cause is
precisely the same as if it had been general? There are undoubtedly
great and solid objections to legislation for particular cases. But
these objections do not necessarily make such legislation repugnant
to the Constitution of the United States.
The act "for the relief of Ezekiel Norris" did not authorize the
commissioner to grant him a certificate or warrant on his entry
unless he should prove that the purchase money had been paid. The
laws had preserved such entries, and consequently an act to enable
the proprietor of one of them to prosecute his claim is not
necessarily an act impairing the obligation of a contract.
The question whether the judgment of the commissioner was
conclusive evidence that the purchase money had been paid is
entirely distinct from the constitutionality of the law, and the
decision of the state court upon it cannot be revised in this
Court.
Page 25 U. S. 129
We are of opinion that this record does not exhibit a case of
which this Court can take jurisdiction and that the writ of error
ought, therefore, to be
Dismissed.
JUDGMENT. This cause came on, &c., on consideration whereof
this Court is of opinion that there is no error apparent on the
face of the record of which this Court can take jurisdiction. It is
therefore CONSIDERED by this Court that the writ of error be
dismissed and that the cause be remanded to the Supreme Court of
Errors and Appeals of the State of Tennessee.