Lapas attēli
PDF
ePub

Act of 1789 has been either an unconstitutional | admitting or rejecting evidence, or any other limit imposed by Congress on the jurisdiction of this court, or an unconstitutional imposition of a rule of decision imposed by Congress on the judgments of the court. We can see in Congress no authority to fetter the jurisdiction or mold the decisions of the court by that clause, and we therefore attribute its efficacy, not to the legislative power of Congress, but to the limitation of the judicial power in the Constitution.

In response to the invitation of the court, Mr. B. R. Curtis, as amicus curia, submitted the following:

Three questions may be considered:

1. Does the later statute repeal the earlier? 2. If so, what changes in the previously existing law have been made by such repeal? 3. Had Congress power to make those changes?

As to the first question.

The general subject of each law is the same. Each confers appellate jurisdiction on the Supreme Court of the United States over judgments of State Courts which, by reason of their subject-matter, are within the judicial power of the United States, under the first clause of the 2d section of the 3d article of the Constitution; and each defines the case in which that appellate power may be exercised, and regulates the mode of exercising that appellate power under the 2d clause of the same section.

The two laws differ in the following particulars:

First. In defining the cases over which this appellate power shall extend.

In the earlier law, one class of cases was described as follows: "Or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of or commission held under the United States."

In the later law there is substituted the following description: "Or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of or commission held or authority exercised under the United States," etc.

The earlier law describes and includes only cases where some question of construction is drawn in question. The later law applies to and includes all cases where a title, etc., was claimed under the Constitution, etc., and the decision was against the validity of that title, whether that decision rested upon some question of construction of the Constitution, or some law or treaty of the United States, or upon any other question entering into the decision of the State Court on the title, capable of being assigned as erroneously made in contravention of law.

This later description may include cases earlier than those embraced in the earlier laws. The State Court may have decided against the title, etc., without misconstruing the Constitution, or any Act of Congress, and yet have made a decision erroneous in point of law in the judgment of the appellate tribunal.

It seems to have been intended to place titles, rights, privileges or immunities claimed under the Constitution, laws or treaties of the United States under the final guardianship of this court, on whatever questions of law the same might depend.

Suppose the State Court ruled erroneously in

question of local law, and the decision was against the right or title, not by reason of any misconstruction of the Constitution, but by rea son of such erroneous ruling. It seems to have been the intention of Congress to enable this court to protect the right, etc., claimed under the United States, from the effect of such errors. Second. The law differs in the regulation each prescribes for the regulation of the exercise of this appellate power.

The former law restricts the assignment of error to those appearing on the face of the record, and it had been construed strictly to refer to the techincal record.

The later law omits this provision.

The former law further restricts the appellate power of this court "which immediately respects the before mentioned question of construction," etc.

The later law contains no such restriction, and any error in law made duly apparent to the Court of Errors is left assignable.

The action of the appellate court on reversal, is not required by each law to be the same. The earlier law confers discretion to proceed to a final judgment and award execution. "If the cause shall have been once remanded before." The later law confers this discretion without qualification.

There is a case where the later statute was manifestly intended to cover and provide for the subject-matter of the earlier law, and to qualify the provisions of the earlier law, not only by omission, but by addition and alteration; and all authorities, I believe, agree that in such a case the later repeals the earlier Act, by necessary implication.

Stewart v. Kahn, 11 Wall., 502, 20 L. ed., 178; U. S. v. Tynen, 11 Wall., 92, 20 L. ed. 154; Ellis v. Page, 18 Mass., 45; Nichols v. Squire, 5 Pick., 168.

II. The changes made by this repeal have already been pointed out, and it is unnecessary to repeat them.

III. Had Congress power to make these changes?

The judicial power of the United States extends to all cases arising under the Constitution, laws and treaties of the United States, and the appellate jurisdiction over all these cases is to be exercised with such exceptions and under such regulations as Congress may make.

It is to be observed that the judicial power extends to cases, not merely to particular questions arising in cases.

No distinction is made by the Constitution between the extent of the judicial power which may be exercised by courts of the United States, having original jurisdiction conferred by Congress, by reason of the subject-matter of the case, and the extent of that power which may be conferred by Congress, to be exercised by an appellate court.

If the case is within the judicial power of the United States, the power of Congress is as plenary to confer appellate power over the whole case, as to confer original jurisdiction over it, and, from the origin of the government, appellate power has been conferred by Congress over entire cases (including all cases arising in them) which come within the judicial power of the United States by reason of their subject-matter. This was true under the 12th sec

tion of the Judiciary Act of 1789, in reference, to lands claimed under different States.

In Martin v. Hunter, 1 Wheat., 349, Mr. Justice Story, speaking for the court, said:

"This power of removal is not to be found, in express terms, in any part of the Constitution; if it be given, it is only given by implication, as a power necessary, and proper to carry into effect some express power. If, then, the right of removal be included in the appellate jurisdiction, it is only because it is one mode of exercising that power, and as Congress is not limited by the Constitution to any particular mode or time of exercising it, it may authorize a removal either before or after judgment. The time, the process and the manner, must be subject to its absolute legislative control. A writ of error is, indeed, a process which removes the record of one court to the possession of another court, and enables the latter to inspect the proceedings, and gives such judgment as its own opinion of the law and justice of the case may warrant.

In Mayor v. Hooper, 6 Wall., 247, 18 L. ed., 851, it was held that this power of removal on account of the subject-matter was plenary, and rested on the same ground as the 25th section of the Act of 1789.

In Osborne v. Bank of U. S., 9 Wheat., 823, the meaning and extent of the Constitution, and its inclusion of the entire case, if Congress saw fit to confer jurisdiction over it as a case, were demonstrated by Ch. J. Marshall, and his exposition of the plenary power of Congress, over both original and appellate jurisdiction in such cases, has been deemed settled. See Fisk v. Union Pa. R. Co., 6 Blatchf., 362, 8 Blatchf., 243.

Unless, therefore, some distinction can be made between the power of Congress to confer original and appellate jurisdiction, and neither the Constitution nor the decisions of this court permit this distinction, it is clear that Congress may confer appellate power over all cases to which the judicial power of the United States extends, and is not restricted by the Constitution to particular questions, by reason of which the cases are brought within the judicial power of the United States. Nor is it essential to the grant of appellate power over the State Courts in the cases enumerated in the Constitution, that the State Court should have actually decided some question under the Constitution, laws or treaties of the United States against a right, title or immunity claimed under them or one of them. If this were essential, there could be no removal as provided by the 12th section of the Judiciary Act of 1789, or any of the subsequent statutes which have conferred the right to remove suits from State Courts before trial, on account of their subject-matter; all of which proceed on the assumption that, although the right of removal depends upon the subject-matter, the State Court has not made any decision thereon.

But it may be argued that if this court on a writ of error finds that the State Court has rightly construed the Constitution, and each law or treaty under which the right, title, privilege or immunity is claimed, and has only decided erroneously on some other question of law on which that right, title, etc., depended, there can be no exercise of the appellate judicial power of the United States.

But this would make the jurisdiction to try and decide the case dependent, not on its subject-matter, but on the decision of the appellate court in the exercise of its jurisdiction concerning that subject-matter. This is wholly inadmissible. When the case comes into this court, it is within the judicial power of the United States by reason of its subject-matter; and its subject-matter is not changed by any decision the court can make thereon.

It is submitted that, by the Act of 1867, Congress intended to confer on this court appellate power over the case, aad that it had Constitutional authority to do so.

Mr. P. Phillips, as amicus curiæ, also responded to the invitation with argument, both oral and printed, reaching the same conclusions as Mr. Curtis.

*Mr. Justice Miller delivered the [*614 opinion of the court:

In the year 1867 Congress passed an Act, approved February 5th, entitled "An Act to Amend an Act to Establish the Judicial Courts of the United States," approved September 24, 1789, 14 Stat. at L., 365. This Act consisted of two sections, the first of which conferred upon the Federal Courts and upon the judges of those courts additional power in regard to writs of habeas corpus, and regulated appeals and other proceedings in that class of cases. The 2d section was a reproduction, with some changes, of the 25th section of the Act of 1789, to which, by its title, the Act of 1867 was an amendment, and it related to the appellate jurisdiction of this court over judgments and decrees of State Courts.

The difference between the 25th section of the Act of 1789 and the 2d section of the Act of 1867 did not attract much attention, if any for some time after the passage of the latter. Occasional allusions to its effect upon the principles long established by this court under the former began at length to make their appearance in the briefs and oral arguments of counsel, but were not found to be so important. as to require any decision of this court on the subject.

But in several cases argued within the last two or three years, the proposition has been urged upon the court that the latter Act worked a total repeal of the 25th section of the former, and introduced a rule for the action of this court in the class of cases to which they both referred, of such extended operation and so variant from that which had governed it heretofore that the subject received the serious consideration of the court. It will at once be perceived that the question raised was entitled to the most careful examination and to all the wisdom and learning, and the exercise of the best judgment which the court could bring to bear upon its solution, when it is fairly stated.

The proposition is that by a fair construction of the Act of *1867 this court must, [*615 when it obtains jurisdiction of a case decided in a State Court, by reason of one of the questions stated in the Act, proceed to decide every other question which the case presents which may be found necessary to a final judgment on the whole merits. To this has been added the further suggestion that in determining whether the question on which the jurisdiction of this court depends, has been raised in any given case, we

are not limited to the record which comes to us from the State Court-the record proper of the case as understood at common law-but we may resort to any such method of ascertaining what was really done in the State Court as this court may think proper, even to ex parte affidavits. When the case standing at the head of this opinion came on to be argued, it was insisted by counsel for defendants in error that none of the questions were involved in the case necessary to give jurisdiction to this court, either under the Act of 1789 or of 1867, and that if they were, there were other questions exclusively of State Court cognizance which were sufficient to dispose of the case, and that, therefore, the writ of error should be dismissed.

Counsel for plaintiffs in error, on the other hand, argued that not only was there a question in the case decided against them which authorized the writ of error from this court under either Act, but that this court having for this reason obtained jurisdiction of the case, should re-examine all the questions found in the record, though some of them might be questions of general common law or equity, or raised by state statutes, unaffected by any principle of federal law, constitutional or otherwise.

When, after argument. the court came to consider the case in consultation, it was found that it could not be disposed of without ignoring or deciding some of these propositions, and it became apparent that the time had arrived when the court must decide upon the effect of the Act of 1867 on the jurisdiction of this court as it had been supposed to be established by the 25th section of the Act of 1789. 616*] *That we might have all the aid which could be had from discussion of counsel, the court ordered a re-argument of the case on three distinct questions which it propounded, and invited argument, both oral and written, from any counsel interested in them. This reargument was had, and the court was fortunate in obtaining assistance of very eminent and very able jurists. The importance of the proposition under discussion justified us in delay. ing a decision until the present term, giving the judges the benefit of ample time for its most mature examination.

With all the aid we have had from counsel,

and with the fullest consideration we have been able to give the subject, we are free to confess that its difficulties are many and embarrassing, and in the results we are about to announce we have not been able to arrive at entire harmony of opinion.

The questions propounded by the court for discussion by counsel were these:

1. Does the 2d section of the Act of February 5, 1867, repeal all or any part of the 25th section of the Act of 1789, commonly called the Judiciary Act?

2. Is it the true intent and meaning of the Act of 1867, above referred to, that when this court has jurisdiction of a case, by reason of any of the questions therein mentioned, it shall proceed to decide all the questions presented by the record which are necessary to a final judgment or decree?

3. If this question be answered affirmatively, does the Constitution of the United States au

thorize Congress to confer such a jurisdiction on this court?

1. The Act of 1867 has no repealing clause nor any express words of repeal. If there is any repeal, therefore, it is one of implication. The differences between the two sections are of two classes, namely: the change or substitution of a few words or phrases in the latter for those used in the former, with very slight, if any, change of meaning, and the omission in the latter of two important provisions found in the former. It will be perceived by this statement that there is no repeal by positive new enactments inconsistent in terms with the [*617 old law. It is the words that are wholly omitted in the new statute which constitute the important feature in the questions thus propounded for discussion.

For the purpose of easy comparison and ready ascertainment of these changes, the 25th section of the Act of 1789, and the 2d section of the Act of 1867, are here given verbatim in parallel columns:

[blocks in formation]

THE 2D SECTION OF THE ACT OF 1867. That a final judgment or decree in any suit in the highest court of a State in which a decisiou in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision [*593 is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or the United laws States, and the decision is in favor of such their validity; or where any title, right, privilege or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under the United States, and the decision 18

of

or

against the title, right, privilege or immunity specially set up claimed by either party under such Constitution, treaty, statute, commission or authority may be re-examined and reversed or affirmed in the Supreme Court of the writ of error, the citaUnited States, upon a tion being signed by the Chief Justice, or judge, or chancellor of the court rendering or passing the judgment or decree complained of or, by a Justice of the Su preme Court of the Ünited States, in the same manner and under the same regulations, and the writ shall have

plained of had been rendered or passed in a Cir- the same effect as if the cuit Court, and the pro-judgment or decree comceedings upon the rever-plained of had been rendered or passed in a except that the Supreme court of the United

sal shall also be the same,

[blocks in formation]

A careful comparison of these two sections can leave no doubt that it was the intention of Congress, by the latter statute, to revise the entire matter to which they both had reference to make such changes in the law as it stood as they thought best, and to substitute their will in that regard entirely for the old law upon the subject. We are of opinion that it was their intention to make a new law so far as the present law differed from the former, and that the new law embracing all that was intended to be preserved of the old, omitting what was not so intended, became complete in itself and repealed all other law on the subject embraced within it. The authorities on this subject are clear and uniform. U. S. v. Tynen, 11 Wall., 88, 20 L. ed. 153; Henderson's Tobacco, 11 Wall., 652, 20 L. ed. 235; Bartlet v. King, 12 Mass., 537; Com. v. Cooley, 10 Pick., 36; Sedg. Stat., 126.

The result of this reasoning is that the 25th section of the Act of 1789 is technically repealed, and that the 2d section of the Act of 1867 has taken its place. What of the Statute

of 1789 is embraced in that of 1867 is of course the law now, and has been ever since it was first made so. What is changed or modified is the law as thus changed or modified. That which is omitted ceased to have any effect from the day that the substituted statute was approved.

This view is strongly supported by the consideration that the revision of the laws of Congress passed at the last session, based upon the idea that no change in the existing law should be made, has incorporated with the Revised Statutes nothing but the 2d section of the Act of 1867. Whatever might have been our abstract views of the effect of the Act of 1867, we are, as to all the future cases, bound by the law as found in the Revised Statutes by the express language of Congress on that subject; and it would be labor lost to consider any other view of the question.

618*] *2. The affirmative of the second question propounded above is founded upon the effect of the omission or repeal of the last sentence of the 25th section of the Act of 1789. That clause in express terms limited the power of the Supreme Court in reversing the judgment of a State Court, to errors apparent on the face of the record and which respected questions. that for the sake of brevity, though not with strict verbal accuracy, we shall call federal questions, namely: those in regard to the validity or construction of the Constitution, trea

ties, statutes, commissions or authority of the Federal Government.

The argument may be thus stated: 1. That the Constitution declares that the judicial power of the United States shall extend to cases of a character which includes the questions described in the section, and that by the word "case," is to be understood all of the case in which such a question arises. 2. That by the fair construction of the Act of 1789 in regard to removing those cases to this court, the power and duty of re-examining the whole case would have been developed on the court. but for the restriction of the clause omitted in the Act of 1867; and that the same language is used in the latter Act regulating the removal, but omitting the restrictive clause. And, 3. That by re-enacting the statute in the same terms as to the removal of cases from the State Courts, without the restrictive clause, Congress is to be understood as conferring the power which that clause prohibited.

In

We will consider the last proposition first. What were the precise motives which induced the omission of this clause, it is impossible to ascertain with any degree of satisfaction. a legislative body like Congress, it is reasonable this matter at all, there were varying reasons to suppose that among those who considered for consenting to the change. No doubt there were those who, believing that the Constitution gave no right to the Federal Judiciary to go beyond the line marked by the omitted clause, thought its presence or absence immaterial; and in a revision of the statute it was wise to leave it out, because its presence *im- [*619 plied that such a power was within the competency of Congress to bestow. There were also, no doubt, those who believed that the section standing without that clause did not confer the power which it prohibited, and that it was, therefore, better omitted. It may also have been within the thought of a few that all that is now claimed would follow the repeal of the clause. But if Congress, or the framers of the bill, had a clear purpose to enact affirmof errors which that clause forbid, nothing atively that the court should consider the class hindered that they should say so in positive terms; and in reversing the policy of the Government from its foundation in one of the most important subjects on which that body could act, it is reasonably to be expected that Congress would use plain, unmistakable language in giving expression to such intention.

There is, therefore, no sufficient reason for holding that Congress, by repealing or omitting this restrictive clause, intended to enact affirmatively the thing which that clause had prohibited.

We are thus brought to the examination of the section as it was passed by the Congress of 1867, and as it now stands, as part of the Revised Statutes of the United States.

Before we proceed to any criticism of the language of the section, it may be as well to revert for a moment to the constitutional provisions which are supposed to, and which do bear upon the subject. The 2d section of the 3d article, already adverted to, declares that "The judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties

made or which shall be made under their au- The proposition as thus stated has great thority." I force, and is entitled to our most careful considWaiving for the present the question whether | eration. If the invariable effect of a writ of

the power thus conferred extends to all questions, in all cases, where only one of the questions involved arises under the Constitution or laws of the United States, we find that this judicial power is by the Constitution vested in one Supreme Court and in such inferior courts as Congress may establish. Of these courts the Constitution defines the jurisdiction of none but the Supreme Court. Of that court it is 620*] said, after giving it a very limited original jurisdiction, that "In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction both as to law and fact with such exceptions and under such regulations as Congress may prescribe."

This latter clause has been the subject of construction in this court many times, and the uniform and established doctrine is, that Congress having by the Act of 1789 defined and regulated this jurisdiction in certain classes of cases, this affirmative expression of the will of that body is to be taken as excepting all other cases to which the judicial power of the United States extends, than those enumerated. Wiscart v. Dauchy, 3 Dall., 321; Durousseau v. U. S., 6 Cranch, 307; The Lucy, 8 Wall., 307, 19 L. ed. 394; Ex parte McCardle, 7 Wall., 506, 19 L. ed. 264.

It is also to be remembered that the exercise of judicial power over cases arising under the Constitution, laws and treaties of the United States, may be original as well as appellate, and may be conferred by Congress on other courts than the Supreme Court, as it has done in several classes of cases which will be hereafter referred to. We are under no necessity, then, of supposing that Congress, in the section we are considering, intended to confer on the Supreme Court the whole power which, by the Constitution, it was competent for Congress to confer in the class of cases embraced in that section.

Omitting for the moment that part of the section which characterizes the questions necessary to the jurisdiction conferred, the enactment is, that a final judgment or decree in any suit in the highest court of a State in which a decision in the suit can be had (when one of these questions is decided), may be re-examined and reversed or affirmed, in the Supreme Court of the United States, upon a writ of error in the same manner, and under the same regulations, and the writ shall have the same effect as if the judgment or decree complained of had been passed or rendered in a court of the United States.

It is strenuously maintained that as the office of a writ of error at the common law, and as it 621*] is used in relation to the *inferior courts of the United States when issued from this court, is to remove the whole case to this court for revision upon its merits, or at least upon all the errors found in the record of the case so removed, and as this statute enacts that these cases shall be re-examined in the same manner, and under the same regulations, and the writ shall have the same effect as in those cases, therefore all the errors found in a record so removed from a State Court must be reviewed so far as they are essential to a correct final judgment on the whole case.

error to a Circuit Court of the United States is to require of this court to examine and pass upon all the errors of the inferior court, and if re-examination of the judgment of the court in the same manner and under the same regulations, means that in the re-examination everything is to be considered which could be considered in a writ to the circuit court, and nothing else, then the inference which is drawn from these premises would seem to be correct. But let us consider this.

There are two principal methods known to English jurisprudence, and to the jurisprudence of the Federal Courts, by which cases may be removed from an inferior to an appellate court for review. These are the writ of error and the appeal. There may be and there are other exceptional modes, such as the writ of certiorari at common law, and a certificate of division of opinion under the Acts of Congress. The appeal, which is the only mode by which a decree in chancery or in admiralty can be brought from an inferior Federal Court to this court, does bring up the whole case for re-examination on all the merits, whether of law or fact, and for consideration on these, as though no decree had ever been rendered. The writ of error is used to bring up for review all other cases, and when thus brought here the cases are not open for re-examination on their whole merits, but every controverted question of fact is excluded from consideration, and only *such er- [*622 rors as this court can see that the inferior court committed, and not all of these, can be the subject of this court's corrective power.

Now, one of the first things apparent on the face of this statute is, that decrees in chancery and in admiralty also, if a State Court shall entertain jurisdiction of a case essentially of admiralty cognizance, are to be removed into this court from the State Courts by this writ of error as well as judgments at law. And such has been the unquestioned practice under the Act of 1789 from its passage until now. But this writ cannot bring a decree in chancery or admiralty from the circuit court to this court for review. It has no such effect, and we dismiss every day cases brought here by writ of error to a circuit court, because they can only be brought here by appeal, and the writ of error does not extend to them. San Pedro, 2 Wheat., 132; McCollum v. Eager, 2 How., 61; Minor v. Tillotson, 2 How., 392; Benton v. Lapier, 22 How., 118. [Not found in testing citations, but see case of Brewster v. Wakefield on page cited, 16 L. ed. U. S. 301.-ED.]

The

Unless, therefore, we have been wholly wrong for eighty years, under the Act of 1789, and unless we are prepared to exclude chancery cases decided in the State Courts from the effect of this writ, it cannot, literally, have the same effect as in cases from a court of the United States; and if we could hold that the writ would have the same effect in removing the case, which is probably all that is meant, still the case when removed cannot literally be examined in the same manner, if by manner is meant the principle on which the judgment of the court must rest. For chancery cases, when brought here from the circuit courts,

re

« iepriekšējāTurpināt »