1. Writs of error to state courts are not allowed as of right.
The practice is to submit the record of the state courts to a judge
of this Court, whose duty it is to ascertain upon examination
whether any question cognizable here upon appeal was made and
decided in the proper court of the state and whether the case upon
the face of the record will justify the allowance of the writ.
2. The present case being one, however, where the petition was
made by a prisoner under sentence of death, within a very few days,
the motion for allowance was permitted, in view of that
circumstance, to be argued, at the earliest motion day before the
full bench.
3. The court conceding that neither the 25th section of the
Judiciary Act of 1789 nor the Act of February 5, 1867, makes any
distinction between civil and criminal cases in respect to the
revision of the judgments of state courts by this Court, decided
that --
4. The 5th and 6th Amendments to the Constitution of the United
States (relating to criminal prosecutions) were not designed as
limits upon the state governments in reference to their own
citizens, but exclusively as restrictions upon federal power,
Baron v. City of
Baltimore, 7 Pet. 243,
Fox v.
Ohio, 5 How. 434, and other cases to the same point
with them being herein concurred in.
This was a petition by one Twitchell for a writ of error to the
Court of Oyer and Terminer of the City and County of Philadelphia
and the Supreme Court of Pennsylvania with a view to the revision
here of a judgment of the former court, affirmed by the latter
court, which condemned the petitioner to suffer death for the crime
of murder.
The case was this:
The Constitution of the United States, by its 5th Amendment,
ordains that no person shall be held to answer for a capital crime
nor be deprived of life "without due process of law," and by its
6th that in all criminal prosecutions the accused shall enjoy the
right "to be informed of the nature and cause of the
accusation."
With these provisions of the Constitution in force, the
Legislature of Pennsylvania, by a statute of the 30th March, 1860,
to consolidate, amend, and revise its laws relative to penal
proceedings and pleadings, enacted thus:
"In any indictment for murder or manslaughter, it shall not
Page 74 U. S. 322
be necessary to set forth the
manner in which, or the
means by which the death of the deceased was caused, but
it shall be sufficient in every indictment for murder to charge
that the defendant
did feloniously, willfully, and of malice
aforethought kill and murder the deceased."
Under this statute, Twitchell was indicted in the Court of Oyer
and Terminer at Philadelphia in December, 1868, for murder, the
indictment presenting, that on a day named, he and his wife, with
force, and arms &c., "feloniously, willfully, and of their
malice aforethought, did make an assault," and one Mary Hill
"feloniously, willfully, and of their malice aforethought, did kill
and murder," contrary to the form of the act &c. On this
indictment Twitchell was convicted, and the supreme court of the
state having affirmed the judgment, he was sentenced to be hanged
on the 8th April, 1869.
Eight days previously to the day thus fixed, Mr. W. W. Hubbell,
counsel of the prisoner, asked, and obtained leave in this Court to
file a motion for a writ of error, as above said, in the case, with
notice to the Attorney General of Pennsylvania that the motion
would be heard on Friday, April the 2d, the earliest motion day of
the Court. The petition was heard before the Court in banc on the
2d accordingly. It set forth that, pending the suit, Twitchell had
set up and claimed certain rights and privileges under the said 5th
and 6th Amendments to the Constitution of the United States and
that the final decision was against the rights and privileges so
set up and claimed. He therefore prayed, in order that the said
Twitchell should enjoy his just privileges under the Constitution
and that what of justice and right ought to be done should be done,
that a writ of error should issue from this Court to the Court of
Oyer and Terminer of the City and County of Philadelphia and the
Supreme Court of Pennsylvania with a view to the reexamination here
of the judgment of the former court, affirmed by the latter.
The application was made under the 25th section of the
Page 74 U. S. 323
Judiciary Act of 1789; the section [
Footnote 1] which gives such writ, where is drawn in
question the validity of a statute of, or authority exercised under
any state, on the ground of their being repugnant to the
Constitution or laws of the United States, and the decision is in
favor of such validity, or where is drawn in question the
construction of any clause of the Constitution or statute of the
United States and the decision is against the title, right,
privilege, or exemption specially set up &c. -- a provision,
this last, reenacted by Act of February 5, 1867, [
Footnote 2] with additional words, as
"where any title, right, privilege, or immunity is claimed under
the Constitution, or any statute of, or authority exercised under
the United States and the decision is against the title, right,
privilege, or immunity specially set up,"
&c.
Page 74 U. S. 324
THE CHIEF JUSTICE, on the Monday following, delivered the
opinion of the Court.
The application for the writ of error is made under the 25th
section of the Judiciary Act of 1789, which makes provision for the
exercise of the appellate jurisdiction of this Court over judgments
and decrees of the courts of the states.
Neither the act of 1789 nor the act of 1867, which in some
particulars supersedes and replaces the act of 1789, makes any
distinction between civil and criminal cases in respect to the
revision of the judgments of state courts by this Court; nor are we
aware that it has ever been contended that any such distinction
exists. Certainly none has been recognized here. No objection,
therefore, to the allowance of the writ of error asked for by the
petition can arise from the circumstance that the judgment which we
are asked to review was rendered in a criminal case.
But writs of error to state courts have never been allowed, as
of right. It has always been the practice to submit the record of
the state courts to a judge of this Court, whose duty has been to
ascertain upon examination whether any question cognizable here
upon appeal was made and decided in the proper court of the state
and whether the case upon the face of the record will justify the
allowance of the writ.
In general, the allowance will be made where the decision
appears to have involved a question within our appellate
jurisdiction; but refusal to allow the writ is the proper course
when no such question appears to have been made or
Page 74 U. S. 325
decided, and also where, although a claim of right under the
Constitution or laws of the United States may have been made, it is
nevertheless clear that the application for the writ is made under
manifest misapprehension as to the jurisdiction of this Court.
In the case before us, we have permitted the motion for
allowance to be argued before the full bench because of the urgency
of the case and the momentous importance of the result to the
petitioner.
It is claimed that the writ should be allowed upon the ground
that the indictment upon which the judgment of the state court was
rendered was framed under a statute of Pennsylvania in disregard of
the 5th and 6th Amendments of the Constitution of the United
States, and that this statute is especially repugnant to that
provision of the 6th Amendment which declares "that in all criminal
prosecutions, the accused shall enjoy the right . . . to be
informed of the nature and cause of the accusation against
him."
The statute complained of was passed March 30, 1860, and
provides that
"In any indictment for murder or manslaughter, it shall not be
necessary to set forth the manner in which or the means by which
the death of the deceased was caused; but it shall be sufficient in
every indictment for murder to charge that the defendant did
feloniously, willfully, and of malice aforethought, kill and murder
the deceased, and it shall be sufficient in any indictment for
manslaughter to charge that the defendant did feloniously kill the
deceased."
We are by no means prepared to say that if it were an open
question whether the 5th and 6th Amendments of the Constitution
apply to the state governments, it would not be our duty to allow
the writ applied for and hear argument on the question of
repugnancy. We think, indeed, that it would. But the scope and
application of these amendments are no longer subjects of
discussion here.
In the case of
Barron v. City of Baltimore, [
Footnote 3] the whole
Page 74 U. S. 326
question was fully considered upon a writ of error to the Court
of Appeals of the State of Maryland. The error alleged was that the
state court sustained the action of the defendant under an act of
the state legislature whereby the property of the plaintiff was
taken for public use in violation of the 5th Amendment. The Court
held that its appellate jurisdiction did not extend to the case
presented by the writ of error, and Chief Justice Marshall,
declaring the unanimous judgment of the Court, said:
"The question presented is, we think, of great importance, but
not of much difficulty. . . . The Constitution was ordained and
established by the people of the United States for themselves, for
their own government, and not for the government of the individual
states. Each state established a constitution for itself, and in
that constitution provided such limitations and restrictions on the
powers of its particular government as its judgment dictated. The
people of the United States framed such a government for the United
States as they supposed best adapted to their situation and best
calculated to promote their interests. The powers they conferred on
this government were to be exercised by itself, and the limitations
on power, if expressed in general terms, are naturally, and, we
think, necessarily applicable to the government created by the
instrument. They are limitations of power granted in the instrument
itself, not of distinct governments framed by different persons and
for different purposes."
And, in conclusion, after a thorough examination of the several
amendments which had then (1833) been adopted, he observes:
"These amendments contain no expression indicating an intention
to apply them to state governments. This Court cannot so apply
them."
And this judgment has since been frequently reiterated, and
always without dissent.
That they "were not designed as limits upon the state
governments in reference to their own citizens," but
"exclusively
Page 74 U. S. 327
as restrictions upon federal power" was declared in
Fox v.
Ohio to be "the only rational and intelligible interpretation
which these amendments can have." [
Footnote 4] And language equally decisive, if less
emphatic, may be found in
Smith v. State of Maryland
[
Footnote 5] and
Withers v.
Buckley. [
Footnote 6]
In the views thus stated and supported we entirely concur. They
apply to the sixth as fully as to any other of the amendments. It
is certain that we can acquire no jurisdiction of the case of the
petitioner by writ of error, and we are obliged therefore to
Refuse the writ.
[
Footnote 1]
Stat. at Large 85.
[
Footnote 2]
14
id. 385.
[
Footnote 3]
32 U. S. 7 Pet.
243.
[
Footnote 4]
46 U. S. 5 How.
434.
[
Footnote 5]
59 U. S. 18 How.
76.
[
Footnote 6]
61 U. S. 20 How.
90.
