From Lowe v. Morris (Ga. 1853), which considers whether or not a writ of error issued by the Clerk of the Court docket needs to be dismissed on the grounds that it erroneously failed to incorporate the seal of the Court docket. The principles of the court docket required clerks to incorporate such a seal, however did not prescribe the consequence if the foundations weren’t adopted. The bulk stated that the writ remained legitimate:
The query is just not, whether or not the events to whom the writ of error was directed could possibly be punished for not obeying it, as a result of not in conformity with the rule; however the query is, whether or not the get together making use of for this writ of error, issued by the Clerk of this Court docket, shall be disadvantaged of his constitutional proper, merely as a result of our personal officer has omitted to place the seal of the Court docket to the writ, as directed by the rule? … The rule doesn’t declare, {that a} writ of error issued in every other method than that prescribed by the rule, shall be null and void….
In my judgment, the rule is merely listing to the Clerk as to the style during which writs of error issued by him shall be authenticated, and if he violates its provisions, it’s an irregularity, which can topic him to private peril and duty, however is not going to deprive the get together of his constitutional proper to be heard on this Court docket, as to the issues concerned within the document which has been despatched up right here in obedience to our personal mandate, attested by the official signature of our personal officer, merely as a result of he has didn’t obey the course of our rule of observe, in attaching the seal of the Court docket to the writ of error, which is in all different respects excellent.
Justice Joseph Lumpkin add an extended, amusing, and considerably rambling concurrence, together with this passage; I quoted it on the weblog again in 2008, however I simply got here throughout it once more and thought I might cross it alongside, in considerably extra element:
For myself, I’m free to admit, that I despise all kinds having no sense or substance in them. And I can scarcely suppress a smile, I can’t say “grimace irresistible,” once I see a lot significance connected to such trifles. I’d solid away directly and ceaselessly, all legislation not based in some cause—pure, ethical, or political. I scorn to be a “cerf adscript” to issues out of date, or completely deserving to be so. And for the “gladsome lights of jurisprudence” I’d sooner far, go to the experiences of Hartly, (Texas,) and of Pike and English, (Arkansas,) than cross an ocean, three thousand miles in width, after which journey up the stream of time for 3 or 4 centuries, to the ponderous tome of Sidenfin and Keble, Finch and Popham, to seek for authorized knowledge. The world is modified. Our personal scenario vastly modified. And that Court docket and that nation is behind the age that stands nonetheless whereas throughout is in movement.
I’d as quickly return to the age of monkery—to the nice previous instances when the sanguinary Mary lighted up the fires of Smithfield, to be taught true faith; or to Henry VIII. the British Blue-Beard, or to his successors, Elizabeth, the 2 James’s and two Charles’s, the nice previous period of butchery and blood, whose emblems had been the pillory, the gibbet and the axe, to check constitutional liberty, as to look the information of black-letter for guidelines to manage the formularies to be noticed by Courts at this present day.
I admit that many previous issues could also be good issues—as previous wine, previous wives, ay, and an previous world too. However the world is older, and consequently wiser now than it ever was earlier than. Our English ancestors lived comparatively within the adolescence, if not the infancy of the world. It’s true that Coke, and Hale, and Holt, caught a glimpse of the latter-day glory, however died with out the sight. The very best and wisest males of their technology had been unable to rise above the ignorance and superstition which pressed like a night-mare upon the mind of countries.
And but we, who’re “making lightning run messages, chemistry polish boots and steam ship parcels and packages,” are ceaselessly going again to the nice previous days of witchcraft and astrology, to find precedents for regulating the proceedings of Courts, for upholding seals and all of the great doctrines consequent upon the excellence between sealed and unsealed papers, when seals de facto not exist! Let the judicial and legislative axe be laid to the basis of the tree; minimize it down; why cumbereth it, any longer, courts and contracts?…
And a bit extra from Justice Lumpkin on why particularly he thought the seal was out of date:
The reality is, that this entire topic like, many others, is based on the utilization of the instances, and of the nation.… The one cause ever urged at this present day, why a seal ought to give higher proof and dignity to writing is, that it evidences higher deliberation, and due to this fact ought to impart higher solemnity to devices. Virtually we all know that the artwork of printing has finished away with this argument. For not solely are all official, and most particular person deeds, with the seals appended, printed beforehand, and stuffed up on the time of their execution, however even retailers and enterprise males are adopting the identical observe, because it respects their notes.
As soon as the seal was each factor, and the signature was nothing. Now the very reverse is true: the signature is every part, and the seal nothing. Due to the advancing intelligence of the age! Within the days of ignorance, to have the ability to learn and write, would save a felon’s neck. Most of the educated gentry now, who’re too lazy to work, and like to stay by their wits, are the fellows upon whom the penalties of the legislation are visited of their utmost severity.
As long as seals distinguished id, there was propriety in preserving them. And as a placing illustration, see the signatures and seals to the dying warrant of Charles the First, as late as January, 1648. They’re 49 in quantity, and no two of them alike. However to acknowledge the waving, oval circumflex of a pen, with these mystic letters to the uninitiated, L. S. [locus sigilli, literally “place of the seal,” used instead of a physical seal -EV] imprisoned in its serpentine folds, as equipotent with the coats of arms taken from the gadgets engraven on the shields of knights and noblemen; shades of Eustace, Roger de Beaumont, and Geoffry Gifford, what a desecration! The rationale of the utilization has ceased; let the customized be distributed with altogether….
