concurring.
Is a writ of error a nullity without a seal ?
My first impression was, that this defect was fatal. Upon reflection, my final conclusion is, the other way. I am not entirely satisfied, however, that I am right, for the reason that my brother Nisbet thinks differently. And a life-long friendship, with an endeared official intimacy of seven years, has inspired me with the most unfeigned respect for the head as well as the heart of my colleague.
He has authority on his side, both ancient and modern, sacred and profane.
His signet or seal was the pledge of identity and fidelity, exacted by Tamar of Lord Judah, one of the twelve Princes of Israel. Moses’ Reports, Book Genesis, c. 38, v. 18. See also, Esther, c. 8, v. 8 and 10. It would seem from this last case, that even at this early period Monarchs as well as Courts at this day, could only act through their official seal. And the reason given is, that the precept issued in the King’s name and sealed with his ring, by his Clerk Mordecai the Jew, may no man reverse. And this is the strong position of my learned brother. (M. anciently, as now, I would remark, was a favorite initial for the name of Court Clerks, from Mordecai the Jew, even down to Martin, the Gfentile.) Whatever else there may be that is new under the sun, it is very evident, from this last authority, that mails are not. For we are told that these letters mandatory of Ahasuerus were sent by post, on horseback, and riders on mules, camels and young dromedaries.
So much for the antiquity and importance of seals. It will be found, upon further investigation, that modern decisions adhere very strictly to these patriarchal precedents. Bou*151vier in his Law Dictionary, defines seal-office in English practice, to be the office at which certain judicial writs arc sealed with the prerogative seal; “and without which,” ho adds, “they are of no authority.” 2 volume, 495.
In Lessee of Beal et al. vs. King et al. (6 Ohio, 11,) the Court say, “ No principle .is more definitely settled, than that the process of a Court having a seal, can only be evidenced by its seal, which is the appointed mode of showing its authority.”
By what is called the Practice Act, in the State of Illinios, it is provided, that the first process, in a suit shall be a summons issued under the seal of the Court, &c. In Hannum vs. Thompson, (1 Scammon’s Rep. 238,) it was held by the Supreme Court of that State, that the Clerk of the Circuit Court having omitted to put his seal to the original summons, the proceeding was void, and that poo, after judgment had been rendered in favor of the plaintiff.
In Hall vs. Jones, (9 Pick. 446,) where an original writ, like the one before us, had the seal of the Common Pleas instead of that of the Supreme Court, to which it was returnable, the plaintiff having made use of a blank writ of the Common Pleas, he moved that the writ should be amended by affixing the proper seal; but the Court decided that it could not be done.
■ It is true, that in Massachusetts theix" Constitution has provided,' that such process should be under the seal of the Court from which it issued. But the rules of this Court, under the power confex'red upon it by the oi'ganic law to establish them, and especially when authenticated, as in this instance they have beeix, by legislative recognition, (see Acts of 1851-’2, p. 214, 215,) are equally binding with the provisions of the Constitution. It is only where they conflict, that the latter has paramount authority.
In Bailey, Judge of Probate, &c. vs. Smith et al. executors, (3 Fair. 196,) the same doctrine was ruled upon a precisely similar state of facts, to that adjudicated in the foregoing case. Aixd the Supreme Court of Maine say, “upon the *152whole, wo regard the seal matter of substance, and the process being an original writ, it is not amendable. We do not . abate the process so much for the sake of the defendant, as because the plaintiff has departed from a substantial requirement of law, of a public nature, in bringing his action.”
Fearing lest my dissenting brother may not be as industrious in citing cases against himself as I have been for him, let the foregoing suffice.
Those who are curious to investigate the subject of seals, will find the best account of them in the writings of Lord Hale and Baron Gilbert.
The earliest mode of commerce, being by barter or exchange of a cow or sheep for some other commodity, it is supposed that the image of these and other animals stamped upon leather or other yielding substance, by wood or metal, constituted the first currency as well as the first use of seals ; next, the impression was made upon the metals, certain superscriptions, indicating the value of the coin, as a Napoleon or a Washington. The latter, without weighing, is universally taken in the United States, to denote twenty dollars. Next, contracts were attested by seals, either where chirography was not known, or where the party could not write his name.
Lord Colee defines a seal to be, wax with an impression, (3 Inst. 169.) “ Sigillum” says he, “ est cera impressa, quia cera sine impressione non est sigillum.” And this has been adopted as the Common Law definition of a seal. Perk. 129,134. Bro. tit. Faits. 17, 30. 2 Leon. 21. Rut it is a curious fact, that there is neither an Act of Parliament nor an adjudged case, up to Lord Coke’s day, to bind the Courts as to what constitutes a seal. His opinion was probably founded upon the practice of the country in his day.
New York, and most of the States North, have held that a seal is an impression upon wax, wafer or some other tenacious substance, capable of being impressed. 5 John. Rep. 239. 2 Caines’ Rep. 262. 21 Pick. Rep. 417. But in Pennsylvania, New Jersey, and the Southern and Western States generally, the impression upon wax has been disused and a *153circular, oval or square mark, opposite the name of the signer, is hold to have the same effect as a seal, the shape of it being altogether indifferent. It is usually written with a pen, sometimes printed. 2 Serg. & Rawle, 503. 1 Dall. 63. 1 Watts, 322. 2 Halst. 272.
The truth is, that this whole subject like, many others, is founded on the usage of the times, and of the country. A scroll is just as good as an impression on wax, wafer, or parchment, by metal, engraved with the arms of a prince, potentate or private person. Both are now utterly worthless, and the only wonder is, that all technical distinctions growing out of the use of seals, such as the Statute of Limitations, plea to the consideration, &c. are not at' once universally abolished. The only reason ever urged at this day, why a seal should give greater evidence and dignity, to writing is, that it evidences greater deliberation, and therefore should impart greater solemnity to instruments. Practically we know that the art of printing has done away with this argument. For not only are all official, and most individual deeds, with the seals appended, printed previously, and filled up at the time of their execution, but even merchants and business men are adopting the same practice, as it respects their notes.
Once the seal was every thing, and the signature was nothing. Now the very reverse is true: the signature is everything, and the seal nothing. Thanks to the advancing intelligence of the age ! In the days of ignorance, to be able to 1 read and write, would save a felon’s neck. Many of the educated gentry noiv, who are too lazy to work, and prefer to live ' by their wits, are the fellows upon whom the penalties of the law are visited in their utmost severity..
So long as seals distinguished identity, there was propriety in preserving them. And as a. striking illustration, see the signatures and seals to the death warrant of Charles the First, as late as January, 164^1 They are 49 in number, and no two of them alike. But to recognize the waving, oval circumflex of a pen, with those mystic letters to the unnitiated, L. S. imprisoned in its Sbrpfentine fdlfls, as etquipbtbnt with *154tbe coats of arms taken from the devices engraven on the shields of knights and noblemen; shades of Eustace, Roger de Beaumont, and Geoffry Gifford, what a desecration! The reason of the usage has ceased; let the custom be dispensed with altogether.
In Jones & Temple vs. Logwood, (1 Washington’s Rep. 56,) President Pendleton states, that there was a period, when the impression was made with the eye-tooth, and thinks there was some utility in the custom, since the tooth’s impression Avas the man’s own, and presented a test in case of forgery. But this reason, however applicable in Virginia in 1791, does /lot hold true in this epoch of dentistry, when no man’s tooth is his own, but teeth, like almost everything else, arc artificial.
Another learned Judge, adverting to this same fact, traces to it the phrase, “ I will prove it to your teeth, or by your teeth.” lie also supposes that “ the cutting of the eye tooth” had an allusion to this, whether the eye-tooth being cut at a certain age, it might denote the being of the age of discretion, so as to be capable of contracting, or whether it related to the impression of that tooth as a mark, being a tooth of signal and singular impression.
What magic, I ask, is there in our own seal ? True, the Clerk has attested this writ of error in his official name, and by his private seal, and in obedience to it, the Clerk of the Circuit Court has certified and transmitted to this Court all the records and papers of file in the Court below, which are necessary to enable us to hear and determine properly, this cause, upon its merits. But then avc look in vain on this writ, for the three pillars supporting an arch, with the word Constitution engraven within the same, emblematic of the Constitution, supported by the three departments of Government; Legislative, Judicial, and Execute. The first having en-graven on its base, Wisdom, the second, Justice, and the third, Moderation, and then on the right of the Executive column, a man standing with a drawn sword, and resembling most strik*155ingly in figure and attitude our mostworthy and excellent Chief Magistrate. But I forbear.
lili robur et aes triplex. He would be a bold Judge indeed, who would venture to decide an issue of law in the absence of this speaking device ! There is a charm in that arch — a spell in those pillars — an inspiration in the e'ye of that fierce-looking swordsman, which guarantees a faithful administration of justice, although simply and b,ut very imperfectly impressed on the foolscap paper on which the writ of error is printed, instead of wax or some other tenacious substance.
To whom we are indebted for the change in our seal, I am not antiquarian enough to state. The old devices, I always venerated; the one side the scroll on which was engraved the Constitution of the State of Georgia and the motto, pro bono publico. On the other side, an elegant house and other buildings, fields of corn, and meadows covered with sheep and cattle; a river running through the same, with a ship under full sail and the motto, Deus nobis hsec otia fecit. The Latinity as well as the piety of this seal, commend themselves to my hearty admiration. They will challenge a comparison, even on the score of architectural taste too, with the arch resting on three pillars. But then the capital defect in the old seal— who does not anticipate me ? — was the absence of that cocked-hat swordsman. Without this addendum, it is difficult to decide that any public document can impart absolute verity. This, it is, I am sure, that has exerted such a controlling influence over the judgment of my dissenting brother, with his well-known military propensities.
The Act of 1845 authorizes this Court to establish and procure a seal. My recollection does not serve me whether the State Coat of Arms was selected as the device. I take it for granted it was. If so, where, upon any seal attached to any writ of error or citation returnable to this Court, are those three potent and 'cabalistic words: wisdom, justice, and moderation ? Do not these constitute a part of the seal just as much as the seal does a part of the writ of error ? Is it the .seal of this Court ..without them ? If so, how much, and *156what portions of it may be omitted and still leave a good seal ? 'Would it be a seal without the arch, without the pillars, without the motto ? I forbear even to put the question whether it would be a seal without the military effigy ? without that eoehed-hat swordsman? Of course it would be a nullity. As well talk of a man without a body !
For myself, I am free to confess, that I despise all forms having no sense or substance in them. And I can scarcely suppress a smile, I will not say “grimace irresistible,” when I see so much importance attached to such trifles. I would cast away at once and forever, all law not founded in some reason — natural, moral, or political. I scorn to be a “cerf ad-script to things obsolete, or thoroughly deserving to be so. And for the “gladsome lights of jurisprudence” I wouldjsooner far, go to the reports of Hartly, (Texas,) and of Pike and English, (Arkansas,) than cross an ocean, three'[thousand miles in Avidth, and then travel up the stream of time for three or four centuries, to the ponderous tome of Sidenfin and Keble, Pinch and Popham, to search for legal wisdom. The world is changed. Our own situation greatly changed. And j that Court and that country is behind the age that stands still) while all around is in motion.
I would as soon go back to the ago of monkery — to the good old times when the sanguinary Mary lighted up the fires of Smithfield, to learn true religion; or to Henry VIII. the British Blue-Beard, or to his successors, Elizabeth, the two James’s and two Charles’s, the good old era of butchery and blood, whose emblems Avere the pillory, the gibbet and the axe, to study constitutional liberty, as to search the records of black-letter for rules to regulate the formularies to be observed by Courts at this day.
I admit that many old things may be good things — as old wine, old Avives, ay, and an old world too. But the Avorld is older, and consequently wiser now than it ever was before. Our English ancestors lived comparatively in the adolescence, if not the infancy of the world. It is true that Coke, and Hate, and Holt, Caught a glimpse of the latter-day glory, but *157died without the sight. The best and wisest men of their generation w'ere unable to rise above thp ignorance and superstition which pressed like a night-mare upon the intellect of nations. And yet wo, who are “making lightning run messages, chemistry polish boots and steam deliver parcels and packages,” are forever going back to the good olcl days of witchcraft and astrology, to discover precedents for regulating the proceedings of Courts, for upholding seals and all the tremendous doctrines consequent upon the distinction between sealed and unsealed papers, when seals de facto no longer exist! Let the judicial and legislative axe be laid to the root of the tree; cut it down; why cumber'eth it, any longer, courts and contracts f
Having treated this subject scripturally and historically, though very discursively, I propose to add a word or two upon the physiological aspect of the question. And I repeat the interrogatory propounded at the beginning of this opinion, namely, what defect will make a writ of error void ? And I answer the query by proposing another: what defect, original or supervenient, will reduce man from the genus homo ?
Will the amputation of the feet and legs disfranchise a descendant of Adam of his title to manhood! It will not be denied but that ho may lose every limb of the body and leave nothing but the naked trunk, and yet be a man “for a’ that.” And is the seal, though it be constituted of the arch, and pillars and swordsman, more essential to the writ of error, or a pedestal to support it, than legs and feet and arms are to manhood? Common sense will decide.
By the XXth rule, the writ of error isYequired to issue in the name of the Governor of the State, bear test in the name of the Judges of this Court, be signed by the Clerk and sealed with the seal of this Court, and be made returnable to its next succeeding term.
The XXIVth rule prescribes imperatively the form of the writ, “the following shall be the form of writs of error,” &c. Supreme Court Manual 33. The provisions of this latter rule, it would seem, should be no less binding than those of *158the former. And any departure from either would be equally incurable or alike amendable. And yet we have not hesitated to allow writs of error to be amended as to dates, names of the parties, and other important particulars prescribed by the form. 2 Kelly, 408. 4 Geo. Rep. 403. 5 Ib. 582; and that too, before the law as to amendments was as liberal as it has since been made by subsequent Statutes. We have gone upon the ground that neither the XXth nor the XXIYth ride declared that the writ should be void unless issued in the form proscribed.
Neither at Common Law nor by any of the Statutes of Amendments and Jeofails was the writ of error amendable in England till the Statute of 5 George I. was passed, and the reason assigned for this exclusion was like much of the other technical folly to be found every where in all the old English books, to-wit, that amendments were granted for the support of judgments, but that the principal design of the writ of error is to reverse them. But by the 13th chapter of the Act referred to, it is declared, “that all writs of error, whenever there shall be any variance from the original record, or other defect, may and shall be amended by the respective Courts where such writ or writs of error shall bo made returnable.” Collins vs. Muxworthy, Cas. Tem. Hard. 194.
We have adopted this Statute. And if wo had not, the Act of our own Assembly, approved 23d Feb. 1850, is almost if not altogether as broad and comprehensive as that of the mother country. Cobb’s New Digest, 455. And it will be found, upon examination, that wherever this Act of George has been adopted, or similar Statutes have been passed, the most liberal practice has obtained as to the amendments of writs of error. Indeed, it is difficult to precscribe any limit to this remedial procedure. 3 Binn. 626. 2 Watts, 294.
With these desultory remarks, I am content to leave the law, learning, and logic of the case to my brother Warner, to whom it legitimately belongs, and who, I have no doubt, will do ample justice to the argument, and with whom I concur, hi retaining the writ of error.