The language of the law. Part Latin, part Anglo-Saxon, all confusing.
One of the very first tasks a new government engages in — if it’s smart — is setting up its courts.
Not doing that is one of the reasons why the Articles of Confederation didn’t work in early America, and why they were replaced by the Constitution of the United States.1 And then the Judiciary Act of 1789 was how the first federal courts were set up.2
So it’s no surprise that one of the very earliest statutes of the Indiana Territory was focused on its courts.
It was, it said, “A Law to regulate the practice of the General Court upon Appeals and Writs of Error, and for other purposes,” and it started out very reasonably with a requirement that s judge of the general court take a careful look each year at the books kept by the clerk’s office and make sure the papers and records were properly kept.3
And it went on to set some rules about how the courts were to operate and how a disappointed litigant would have to take specific action if he wanted to appeal.4
And then we get this provision:
No writ of error shall be a supersedeas, unless the general court, or some judge thereof in vacation (as the case may be) after inspecting a copy of the record, shall order the same to be made a supersedeas,…5
Um… super what?
Yeah, right, this is another one of those words. The ones we come across from time to time as genealogists… and we have no idea what the heck the law — or the document — is talking about.
The dictionary definition is a “writ ordering the suspension or superseding of another writ previously issued. It directs the officer to whom it is issued to refrain from executing or acting under another writ which is in his hands or may come to him.”6
And, the definition adds:
By a conventional extension of the term it has come to be used as a designation of the effect of any proceeding or act in a cause which, of its own force, causes a suspension or stay of proceedings. Thus, when we say that a writ of error is a supersedeas, we merely mean that it has the same effect, of suspending proceedings in the court below, which would have been produced by a writ of supersedeas.7
So let’s say that Your Ancestor sued My Ancestor in the courts of the Indiana Territory back in the early 1800s.8 And Your Ancestor won a judgment of, say, $250 which My Ancestor was to pay and promptly gets the court to issue a writ of execution directing the sheriff to go grab My Ancestor’s money or property to pay the $250 judgment.
Clearly, My Ancestor thinks the court made a mistake and wants to appeal to a higher court. But there’s one more thing My Ancestor wants to do: he wants to hang on to his $250, and all of his property that might be worth $250, while the appeal is being heard. He absolutely does not want the sheriff coming out and executing that writ to grab the money or property.
What My Ancestor wants, to stop the sheriff and keep things static until the appeal is decided, is what was then called a writ of supersedeas.
Today, we’d simply use the more generic term — we’d ask for a stay.9 But because everything back then proceeded by way of those formal writs, it took another formal writ to stop things long enough for the appeal to be decided.
- See Ted Brackemyre, “America’s First Failure at Government: The Articles of Confederation,” U.S. History Scene (http://ushistoryscene.com/ : accessed 21 Aug 2016). ↩
- “Act to Establish the Judicial Courts of the United States,” 1 Stat. 73 (1789); digital images, “A Century of Lawmaking for a New Nation,” Library of Congress (http://memory.loc.gov/ammem/amlaw/lwsl.html : accessed 21 Aug 2016.) ↩
- §1, “A Law to regulate the practice of the General Court upon Appeals and Writs of Error, and for other purposes,” No. III (1801), in The Laws of the Indiana Territory, 1801-1806, Inclusive (Paoli, Ind. : Throop & Clark, 1886), 7; digital images, Google Books (http://books.google.com : accessed 21 Aug 2016). ↩
- Ibid., §§ 2-5, at 8-10. ↩
- Ibid., §5, at 10. ↩
- Henry Campbell Black, A Dictionary of Law (St. Paul, Minn. : West, 1891), 1139, “supersedeas.” ↩
- Ibid. ↩
- Wouldn’t have happened, by the way. My Ancestor clearly would have been living further south. My mother’s family didn’t get north of the Mason-Dixon line until my generation. ↩
- Ibid., 1123, “stay” (“A stopping; the act of arresting a judicial proceeding, by the order of a court”). ↩