A motion has been made for process from this court to bring here for revision the record and proceedings of the late Territorial Court of Appeals of Florida, in the case of Hunt v. The Lessee of M. & S. Palao, in which judgment was rendered in favor of the latter, at February term, 1844.
Since Florida ceased to be a Territory and became a State, a law has been passed by the State, directing the records and papers of the above-mentioned Territorial Court to be placed in the custody of the clerk of the Supreme Court of the State; and under this law, the record in the case in question is now in his possession for safe keeping.
As Congress has made no special provision for a case of this kind, the appellate power of this court, if exercised at all, must be exercised in the manner prescribed by the general laws of Congress upon that subject. Under the act of 1832, writs of error to the Territorial Court of Appeals were to be prosecuted according to the provisions and regulations of the twenty-fifth section of the judiciary act of 1789. And assuming the case in question to be one subject to revision in this court, according to these acts of Congress, yet the appellate power must be exercised in the manner prescribed by these laws; and under the act of 1789, the writ of error must be directed to the court which holds the proceedings as a part of its own records, and exercises judicial power over them. But the court which rendered the judgment in the case before us is no longer in existence; the proceedings are not in the possession of any court authorized to exercise judicial power over them, but are in the possession of an officer of another court, merely for the purpose of safe keeping. For the law of Florida does not place these records in the custody of the State court, but in that of the clerk; nor does it subject him to the control of the court in any manner in regard to them. And indeed if it had placed them in the custody of the court, it would not have removed the difficulty; for the law of the State could not have made them records of that court, nor authorized any proceedings upon them. The Territorial Court of Appeals was a court of the United States, and the control over its records, therefore, belongs to the general government, and not to the State authorities; and it rests with Congress to declare to what tribunal these records and proceedings shall be transferred; and how these judgments shall be carried into execution, or reviewed upon appeal or writ of error.
It has been suggested that a writ of error may issue, under the fourteenth section of the act of 1789, to the person having the actual custody of the record, upon the ground that such a writ is necessary to the exercise of the appellate powers of this court. But if the language of that section would justify such a construction, and the record and proceedings were brought here by a writ of error, either to the Supreme Court of the State or to the clerk, and the judgment of the Territorial Court found to be erroneous and reversed, still there is no tribunal to which we are authorized to send a mandate to proceed further in the case, or to carry into execution the judgment which this court may pronounce. Certainly we could not send it to the Supreme Court of the State, for it is not their judgment or record, nor have they any power to execute the judgment given by the Territorial Court. Neither, for the same reasons, could we send such a mandate to the District Court of the United States, unless authorized to do so by a law of Congress. And it would be useless and vain for this court to issue a writ of error, and bring up the record, and proceed to judgment upon it, when, as the law now stands, no means or process is authorized by which our judgment could be executed. We think, therefore, that no judgment or decree rendered by the late Territorial Court can be reviewed here by writ of error or appeal, unless some further provision on that subject shall be made by Congress. Consequently, the motion in this case must be refused.
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This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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