JURISDIC TION. APPELLATE some proceeding after the decision of the cause in the circuit court. 58 Nor where the question is, whether a new trial ought nor as to new to be granted, the motion for that purpose not being a part of the proceedings in the cause, but an application to the discretion of the court, and upon the decision of which a writ of error will not lie.59 trials. Form of certificate. 80 returned The judges do not state in the certificate the reasons of their If imperfect, opinion, but merely the point of disagreement.60 Where the to court be- questions are so imperfectly certified that the supreme court can not pronounce upon them, the only step which they take in the case is, to certify to the court below the fact of such imperfection.61 low. Sec. 13. of the judiciary act. Writ of man damus lies under this section, in the exercise of the appellate powers of the court, Writs of prohibition, mandamus, habeas corpus, &c.] We have seen that the thirteenth section of the judiciary act declares, that the supreme court "shall have power to issue writs of prohibition 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." The writ of mandamus which the court is by this section allowed to issue, will be first considered. We have already had occasion to observe that the clause relating to the writ of mandamus, so far as it attempts to confer original jurisdiction upon the court, has been held to be unconstitutional. In the same case, however, in which this point was ruled, 101 it was held that the writ might be issued in cases where the jurisdiction was of an appellate nature. On this subject the court observed: "It has been stated at the bar that the appellate jurisdiction may be exercised in a 58 12 Wheat. Rep. 212. 59 6 Wheat. Rep. 547. 61 11 Wheat. Rep. 257. 60 Trial of Smith and Ogden, 47. cited ante, 322-3. JURISDIC- variety of forms, and that if it be the will of the legislature APPELLATE that a mandamus be used for that purpose, that will must be obeyed. This is true, yet the jurisdiction must be appellate, not original. It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Although, therefore, a mandamus may be directed to courts, yet to issue such a writ to an officer for the delivery of a paper, is in effect the same as to sustain an original action for that paper, and, therefore, seems not to belong to appellate, but to original jurisdiction." dependent This case then establishes the power of the court, under this and is an inprovision of the judiciary act, to issue writs of mandamus to branch of its any courts of the United States; and that it is an independent risdiction; branch of its appellate jurisdiction; while it denies generally that the court can have any power under it to issue such writs to persons holding office under the United States. The act, however, in this case, which it was sought by the mandamus to compel the officer to perform, was one of a merely ministerial character, and in no way connected with the judicial power: And it might perhaps be still considered open to inquiry whether a mandamus, under this section, will only lie to inferior courts to be ordained and established by congress with permanent judges as the constitution requires, or may be also issued to persons holding office under the authority of the United States, where they are invested with and exercise any portion of the judicial power described by the constitution, and in cases where it allows this court appellate jurisdiction. It will be observed that the mandamus of which we are now speaking is in principle quite different from the ordinary writ of mandamus which the courts of the United States are allowed to issue. This forms a distinct and independent branch of the appellate jurisdiction of the supreme court; the other it issues like the other courts, in cases where it is necessary for the exercise of a jurisdiction to which it is othewise entitled, whether original or appellate; and under a different section of the judiciary act. APPELLATE TION. as is also the writ of pro hibition: and the writ of habeas corpus, ad subjicien Where an application was made for a mandamus to compel a circuit court to restore an attorney who had been suspended, the court observed that some doubts were felt respecting the extent of its authority as to the conduct of the circuit and district courts towards their officers, but denied the motion on other grounds.102 But one case has arisen under the above provision of the judiciary act, of a prohibition to a district court proceeding as a court of admiralty and maritime jurisdiction, and no question was made in it as to the constitutionality or construction of the provision. The power conferred is of course of an appellate nature. The fourteenth section of the judiciary act provides that “all the courts of the United States shall have power to issue writs dum, under of scire facias, habeas corpus, and all other writs not specially the 14 sec tion. provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. And that either of the justices of the supreme court, as well as judges of the district courts, shall have power to grant writs of habeas corpus, for the purpose of an inquiry into the cause of commitment. Provided, that writs of habeas corpus shall, in no case, extend to prisoners in jail, unless where they are in custody, under or by colour of the authority of the United States, or are committed for trial before some court of the same, or are necessary to be brought into court to testify." No case has occurred in which it has been attempted to establish the right of the supreme court to exercise its appellate jurisdiction by any of the writs mentioned or referred to in this section, except the writ of habeas corpus to inquire into the cause of commitment. In the second case which occurred, in which this writ was applied for, the commitment was for no certain offence, 102 9 Wheat. Rep. 529. & TERMS. but merely until security was given for the prisoner's good be- OFFICERS haviour. But the court sustained its jurisdiction, and granted the writ.103 In a later case, however, in which the jurisdiction of the court was strongly questioned, and where the commitment was for high treason, although the court appears to have rested its jurisdiction to grant the writ upon this section, as sufficient to sustain it generally, yet the thirty-third section of the judiciary act, authorising the supreme court to admit to bail where the punishment may be death, was referred to, as expressly conferring on the court an appellate power, which required the writ of habeas corpus for its exercise. But the court appear to have proceeded principally on the ground, that the writof habeas corpus mentioned in the section, is the great writ of habeas corpus ad subjiciendum, and being appellate in its nature, is of itself an independent mode established by congress, for the exercise of the appellate jurisdiction of the court. 104 Officers.] The clerk of the supreme court is appointed by officers. the court, and gives a bond in the sum of two thousand dollars.62 It is the duty of the marshal of the district where the court may sit, to attend its sessions; and the marshal of each district is the ministerial officer of the court in his district.65 64 Adjourn Terms.] By the judiciary act of 1802, it is provided, Terms. that "from and after the passing of this act, the supreme court ment, &c. of the United States shall be holden by the justices thereof, or any four of them, at the city of Washington, and shall have one session in each and every year, to commence on the first Monday of February annually, and that if four of the said justices shall not attend within ten days after the time hereby appointed for the commencement of the said session, the busi TERM ness of the said court shall be continued over till the next stated session thereof." But an act of 182665 alters the above provision so far as to require the term to be held on the second Monday of January instead of the first Monday of February; and an act of 18296 makes a further alteration as follows: "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 time 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." The next section provides, "that 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."67 The first judiciary act provided, that the supreme court might be adjourned from day to day by any one or more of its justices, being present, until a quorum was convened ;6 and provision is made for its adjournment to another place, in case of contagious sickness. We have also seen, that writs made returnable on the first and process may be tested or |