Autobiography of Charles Clinton Nourse / Prepared for use of Members of the Family

by Charles Clinton Nourse

During my stay in Ohio, I read carefully and with much profit to myself, the daily reports of the proceedings of the state convention that was then forming a new constitution for that state.

Many eminent lawyers were members of the convention, among them Mr. Stansbury, afterwards Attorney General of the United States, and Mr. Raney, afterwards Judge of the supreme court of the state of Ohio. Occasionally the learned men of the convention indulged their sense of humor, and among other incidents of the debates I recall the following:

Among other members of the convention there was an uneducated man by the name of Sawyer. Mr. Stansbury, of the committee on the judiciary, reported a provision relating to the powers of certain courts, authorizing them to issue writ of habeas corpus, procedendo, quo warranto, and mandamus.

Mr. Sawyer objected to these Latin terms being in the constitution on the ground that many of his constituents could not understand the meaning of such terms and he wanted the committee to put the words into English language, and also asked for an explanation of the meaning of these words.

Mr. Stansbury very courteously explained that the difficulty was not in the use of the terms proposed, but it was because his friend did not understand the nature of these writs. For the benefit of Mr. Sawyer he explained their meaning, but suggested that the use of any English terms or words would not make the character of the writs any better understood to those who are not familiar with the law. He said that the literal meaning of the words "habeas corpus" was to have the body, and the writ was issued in case any one complained of being illegally imprisoned, or restrained of their personal liberty, and was intended for the purpose of having the body of the person in whose behalf the writ was issued brought before the court, in order that the cause of his restraint or imprisonment might be inquired into and its legality or illegality be determined; that to call the writ, a writ to have the body, would not make the term any more intelligent than to use the words "habeas corpus."

That the word "procedendo" simply meant to proceed or go ahead, and was a name of a writ that was issued by the appellate court to an inferior tribunal, authorizing them to proceed in accordance with the opinion of the appellate court. Out of respect to the character of a man who had become famous in the west, of an early day, he would suggest to his friend Sawyer that this writ might be called a writ of "David Crocket," as it was a favorite motto of that individual to "Be sure you are right and then go ahead."

That the literal meaning of the words "quo warranto" was, "Why do you do it?" It was a writ issued by some superior court to an inferior court or tribunal, corporation or officer, to ascertain by what authority they exercised certain powers; that the only term in English that would express the particular character of the writ would be the words, "Why do you do it?"

The writ of "mandamus" was a writ issued by the court commanding some inferior tribunal or officer to do and perform certain duties which were required by law and which he had refused to perform. That the only words in the English language that would properly define the character of this writ would be, "Do it, damn you."

It is not necessary to add that Mr. Sawyer gave the convention no further trouble in regard to the Latin names of these writs.