It is not a cause of reversal in this Court of the decree of the
circuit court that the record is insufficient to show the grounds
of the decree of the circuit court.
On the return of the record, several errors were assigned, but
the only one now relied on states
"that the facts on which the circuit court had founded their
decree did not appear fully upon the record, either from the
pleadings and decree itself or a state of the case agreed to by the
parties or their counsel or by a stating of the case by the
court,"
as required by the 19th section of the Judiciary Act.
On examining this record it was found that no statement of facts
had been made either by the court or the parties, nor did it appear
from the pleadings and decree upon what facts the decree of the
circuit court had been founded. But it appeared that a number of
witnesses had been produced and sworn (the record did not say
examined) at the hearing before the circuit court whose testimony
had not been committed to writing, while, on the other hand, the
depositions of the witnesses who had been examined before the
district court were annexed to the proceedings returned. It was
acknowledged by the counsel for the defendants in error that the
testimony of the witnesses produced in the circuit court had been
taken
viva voce, according to the 30th section of the
Judiciary Act, and that their depositions had not been committed to
writing. It was conceded by the counsel on both sides that without
other aids than such as were to be derived from this imperfect
Page 3 U. S. 185
record, it would be impossible to obtain a fair review of the
proceedings of the circuit court in this cause. But Cox and
Duponceau, for the plaintiffs in error, contended for a reversal of
the decree. Reed (of South Carolina), E. Tilghman, and Lewis for
the defendants insisted, on the other hand, that the decree ought
to be affirmed unless it was shown to be erroneous; that the
omission on which the plaintiffs relied could not be assigned as an
error, and did not vitiate the proceedings; that it was to be
ascribed to the neglect of the plaintiffs themselves, who ought in
the first instance to have applied to the adverse counsel to state
a case, and if they refused or disagreed in their statement, then
to the court itself; that the defendants being satisfied with the
decree and not intending to appeal therefrom, it was not their
business to assist the plaintiffs in perfecting their record, so as
to enable them to bring it properly before an Appellate court. Upon
the whole, they prayed that the decree be affirmed.
For the plaintiffs in error it was insisted that the omission of
a statement of the case vitiated the whole record. The Judiciary
Act of the United States had greatly innovated upon the old system
of admiralty and chancery proceedings, the forms and principles of
the common law were interwoven with and in many cases entirely
substituted to those of the Roman jurisprudence. The 30th section
of that act required that the testimony of witnesses should be
taken
viva voce, instead of written depositions, both in
the district and the circuit court. In the former of these
tribunals, indeed, when either of the parties expressed an
intention of appealing to the other, the depositions of the
witnesses were to be committed to writing, but this case was an
exception to the general rule. In the circuit court, where new
evidence was admitted, no provision had been made for committing
the testimony to writing except in the case of absent, aged,
infirm, or departing witnesses whose evidence might be taken
de
bene esse, precisely as in the common law courts. The whole
testimony therefore could not, without the consent of parties, come
before the Supreme Court of the United States, in any case where
new witnesses were heard, or the same witnesses who were examined
below, were produced do novo before the circuit court.
It was clear that the intention of Congress was to vest the
power of trying matters of fact in admiralty and equity cases in
the district and circuit courts exclusively. Like the verdict of a
jury, the decision of the latter tribunal was final and conclusive
as to fact. The Supreme Court was only empowered to correct their
decrees in matters of law. Therefore an appeal did not lie to it,
but only a writ of error, as at common law. And by the
twenty-second section of the Judiciary Act, it was
Page 3 U. S. 186
provided that no decree of the circuit courts should be reversed
for any error in fact.
But still the civil law pleadings, as by bill or libel, answer,
&c., were retained in the courts below. Those not being carried
on with the logical closeness and accuracy for which the system of
common law pleadings is so much and so justly admired, the facts
which grounded the decree would seldom if ever appear from the
pleadings and decree itself. Amidst the heap of matter with which
libels and answers are generally crowded and the variety of facts,
often immaterial to the real points in contest, asserted and denied
by the respective parties, it would be often difficult even to know
what was the true object of the controversy. The law therefore
wisely ordered that the facts on which the decree was founded,
where they did not appear from the pleadings and decree itself,
should be shown by a statement, which, like a special verdict,
should enable the court to determine whether the inferences of law
drawn from those facts by the inferior court were just or
erroneous.
To cause such a statement to be made or to make it themselves
was a duty which the law enjoined upon the circuit courts, and
which they were bound to perform. The words of the act of Congress
were express and imperative.
"It shall be the duty of the circuit courts in causes in equity
and of admiralty and maritime jurisdiction to cause the facts on
which they found their sentence or decree fully to appear upon the
record, either from the pleadings and decree itself, or a state of
the case agreed by the parties, or their counsel, or if they
disagree, by a stating of the case by the court."
The court was therefore bound to see that the facts appeared
upon the record in some one or other of these modes, neither party
could compel the adverse counsel or the court to state a case, and
the courts, by omitting this indispensable requisite, had it in
their power, whenever they pleased, to make their decrees final and
conclusive in law as well as in fact, and effectually to deprive
the unsuccessful party of the benefit of a revision which the law
had expressly provided in his favor. It being then the default of
the court, it might be well assigned for error. 8 Co. 59; Cro.Eliz.
84, 107. And the act of Congress, being introductory of a new law,
was to be strictly pursued. 4 Bac.Ab. 641; 2 Stra. 971.
The counsel further illustrated the subject by several analogies
drawn from the civil and the common law. It was, they said, a
principle which appeared to pervade those two systems that where
the superior court were judges of law and fact, the inferior
tribunal was bound to return to them the whole evidence; when
judges of law only, then they were bound to make the facts appear
upon which the judgment or decree was founded. Orders of the courts
of quarter sessions are only to
Page 3 U. S. 187
be quashed for errors in law; therefore it is only necessary
that the facts on which they were founded should appear upon the
record; but in the case of convictions by justices upon penal
statutes, the facts are to be reexamined, and therefore they are
bound to set forth the whole evidence. 2 Stra. 997. At common law,
where the trial is by jury, still the facts on which the judgment
is founded must appear on the face of the whole record, and where
the verdict did not find precisely the matter in issue, as where it
found that "by nonperformance of the promise," the plaintiff had
sustained $50 damages, without expressly finding that the defendant
had promised, the judgment for the plaintiff was reversed, 21
Via.Ab. 441, because the superior judges could not determine
whether the law had been properly inferred from the facts unless
the facts themselves were clearly and expressly stated. This rule
obtained at civil law for the very same reasons. On a bill of
review in chancery, where the law alone was to be reexamined, it
had been often resolved that the facts proved and allowed by the
court as proved, should be so mentioned in the sentence, otherwise
on a bill of review, those facts should be taken as not proved, for
else a decree could never be reversed by a bill of review, but all
erroneous decrees must be reversed on appeals only. 1 Vern. 166,
214-216; 1 Cha.Ca. 54-55.
The counsel for the defendant in error insisted that although
the want of a statement of facts was a technical defect in the
record before the court which they were willing to supply as much
as lay in their power from their notes of the evidence which had
been taken before the circuit court, yet the court could not
without great injustice reverse the decree on that account. It was
bound by the twenty-fourth section of the Judiciary Law, on the
reversal of a decree of the court, to pass such a decree as the
circuit court should have passed. How could they do it in this
instance? Were they, for an omission of the court, which they could
not help any more than the defendants, to put it out of their power
to obtain justice, and how could they say that the circuit court
should have rendered a different decree, since they were not
possessed of the merits of the cause?
The Court was unanimously of opinion that the error assigned was
not a sufficient ground for reversing the decree, and recommended
to the parties to come to some agreement which might bring the
matters in controversy fairly before them.
After some conversation, an agreement took place between the
counsel on both sides that the cause should be continued to the
next term, and that in the meantime new evidence
Page 3 U. S. 188
might be taken on both sides, and the whole matter of fact as
well as the law brought before the Supreme Court of the United
States as upon an appeal.
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