Page:John P. Branch Historical Papers - Volume 2.djvu/309

 in future. This decision negatives the idea of the court, that the term was confined to the cases then pending.

As it has this future operation also under this decision, and as the word “commenced” is also used in the amendment, for what other purpose could the word “prosecuted" have been inserted, but to embrace cases which, although not commenced in the federal courts were “prosecuted” there?

This idea of the supreme court is also entirely reprobated by another consideration. It is consistent with no rules of fair reasoning to construct an instrument, which the court itself says was “designed to attain immortality” by the pending and ephemeral incidents of the present time. It is wrong to draw any inferences in the teeth, too, of great principles, from the accidental existence at the time, of three causes on the docket of that court. The decision of the supreme court last mentioned overthrows this idea of their successors. It shows that the amendment as to the word “prosecuted” was not confined to the pending suits.

The court is entirely mistaken I conceive, in supposing that the only effect of a writ of error is “simply to bring the record into court” for the “sole purpose of an enquiry by that court, whether the judgment appeal from violates the constitution,” &c. It is brought for the far more important and substantial purpose of reversing a judgment, by which the party bringing it supposes himself to have been aggrieved. It is a real and substantial proceeding, and is not to settle mere abstract questions about the Constitution. It also changes the right of property, by declaring that money or property now belongs to the plaintiff in error, which had been before adjudged to belong to the defendant.