The legislative power of a State, the controlling power of the constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful People, the personal liberty of a citizen, are all involved in the subject now to be considered.
It behooves this Court, in every case, more especially in this, to examine into its jurisdiction with scrutinizing eyes, before it proceeds to the exercise of a power which is controverted.
The first step in the performance of this duty is the inquiry whether the record is properly before the Court.
It is certified by the clerk of the Court which pronounced the judgment of condemnation under which the plaintiff in error is imprisoned, and is also authenticated by the seal of the Court. It is returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the Associate Justices of the Supreme Court, and served on the Governor and Attorney General of the State more than thirty days before the commencement of the term to which the writ of error was returnable.
The Judicial act,[1 ] so far as it prescribes the mode of proceeding, appears to have been literally pursued.
In February, 1797, a rule[2 ] was made on this subject, in the following words: "It is ordered by the Court, that the clerk of the Court to which any writ of error shall be directed, may make return of the same by transmitting a true copy of the record, and of all proceedings in the same, under his hand and the seal of the Court."
This has been done. But the signature of the Judge has not been added to that of the Clerk. The law does not require it. The rule does not require it.
In the case of Martin vs. Hunter's lessee,[3 ] an exception was taken to the return of the refusal of the State Court to enter a prior judgment of reversal by this Court, because it was not made by the Judge of the State Court to which the writ was directed; but the exception was overruled, and the return was held sufficient. In Buel vs. Van Ness,[4 ] also a writ of error to a State Court, the record was authenticated in the same manner. No exception was taken to it. These were civil cases. But it has been truly said at the bar, that, in regard to this process, the law makes no distinction between a criminal and civil case. The same return is required in both. If the sanction of the Court could be necessary for the establishment of this position, it has been silently given.
McCulloch vs. the State of Maryland,[5 ] was a qui tam action, brought to recover a penalty, and the record was authenticated by the seal of the Court and the signature of the Clerk, without that of a Judge. Brown et al. vs. the State of Maryland, was an indictment for a fine and forfeiture. The record in this case, too, was authenticated by the seal of the Court and the certificate of the Clerk. The practice is both ways.
The record, then, according to the Judiciary act, and the rule and the practice of the Court, is regularly before us. The more important inquiry is, does it exhibit a case cognizable by this tribunal?