Title: John M. Binckley to Hugh McCulloch, 26 May 1868
Date: May 26, 1868
Source: Transcribed from digital images or a microfilm reproduction of the original item. For a description of the editorial rationale behind our treatment of the correspondence, see our statement of editorial policy.
Location: National Archives and Records Administration
Whitman Archive ID: nar.00546
Contributors to digital file: Elizabeth Lorang, John Schwaninger, Nima Najafi Kianfar, and Kevin McMullen
May 26, 1868.
Hon. Hugh McCulloch,
Secretary of the Treasury.
Your letter of the 25th instant, is just received, requesting me to inform you as to the precise grounds upon which the appeal in the case of The United States against Brulatour and others, from the United States Circuit Court of the Eastern District of Louisiana, was dismissed by the Supreme Court at the last term,—and whether such dismissal is, in effect, final or otherwise,—and if otherwise, what steps must be taken for the purpose of reviewing the appeal, in case your Department shall deem it expedient to take that course.
1. I have the honor to inform you that the appeal, in that case, was dismissed on the motion of the appellees, upon one ground, to writ, that the case was one of law, and that the judgment, accordingly, could only be reviewed by writ of error.
2. The dismissal of the erroneous appeal does not preclude a reviewal of the judgment of the Circuit Court upon a writ of error, if the record of the cause should present the question of law which arose, and was decided below in proper form for the decision of the Supreme Court. On looking into the record of the case, as brought up by the late appeal, I am inclined to think that the Supreme Court would say that there is no sufficient statement or finding of the facts by the Court below, such as is required when a case is tried, as this was, by the Court, without the intervention of a jury, to warrant an examination of the judgment of the Circuit Court. This question, however, I will not determine. The decisions of the Supreme Court as to the sufficiency of Records from Louisiana in cases tried by the Court without juries, are very numerous, and not harmonious; and the Court might conclude that the evidence spread upon this record, shows, with sufficient clearness, what the question of law decided by the Court below, really was. But, at all events, if a writ of error should be issued, the District Attorney should be instructed to take steps to obtain, if possible, by consent of parties, or otherwise, such a statement of the facts found by the Court as will present the legal questions for review clearly and distinctly—and to make such statement a part of the new record to be brought up by the writ of error.
3. In reply to the third branch of your question, I would state that the proper course to pursue in case your Department desire a review of this judgment, is, to direct the District Attorney to issue a writ of error, with proper citation, to the adverse parties.
I would say, in conclusion, that the question of the propriety of bringing this case up again, by writ of error, is one which, we think, properly belongs to your Department. The substantial qusetion is one arising under the Revenue laws of the United States—and it may, or may not, be a question on which you desire the judgment of the Supreme Court.
Respectfully, Your obedient servant,
John M. Binckley
Assistant Attorney General.