Lapas attēli

an exercise, or necessary to an exercise, of appellate jurisdiction. The Supreme Court may accordingly issue a mandamus to a Circuit Court of the United States, commanding it to sign a bill of exceptions, for this is an exercise of power warranted by the principles and usages of law.a

is a party.

(3.) The constitution gives to the Supreme Court ori- When a state ginal jurisdiction in those cases in which a state shall be a party; and in Fowler v. Lindsey, the question arose, when a state was to be considered a party. The parties in that suit claimed title to lands under grants from different states. The plaintiff brought his ejectment in the Circuit Court of Connecticut, claiming title under a grant from that state, and under a claim that the lands lay within the jurisdiction of that state. The defendant claimed title under a grant from New-York, and on the ground that the lands lay within the rightful as well as actual jurisdiction of New-York. The court laid down this rule on the subject of the jurisdiction of the Supreme Court, on account of the interest that a state has in the controversy, that it must be a case in which a state is either nominally or substantially the party; and that it is not sufficient that the state may be consequentially affected, as being bound to make retribution to her grantee upon the event of eviction. Though there may be a controversy relative to soil or jurisdiction between two states, yet if that controversy occurs in a suit between two individuals, to which neither of the states is a party upon the record, it is not a case within the original jurisdiction of the Supreme Court, because the states may contest the right of soil in the Supreme Court at any time, notwithstanding a decision in the suit between the individuals. Nor will a decision as to the right of soil between individuals affect the right of the state as to jurisdiction, and that jurisdiction may re

a Ex parte Crane and another, 5 Peters' U. S. Rep. 190. b 3 Dallas, 411.

Appellate jurisdiction de


main unimpaired, though the state may have parted with the right of soil. In such a case, the Supreme Court would not allow an injunction on a bill, filed by the state of NewYork against the state of Connecticut, to stay proceedings in the ejectment suit between individuals, though a general claim of soil and jurisdiction was involved in the private suit, because the state of New-York was not a party to the suit in the Circuit Court, nor interested in the decision.'

(4.) The appellate jurisdiction of the Supreme Court pends on exists only in those cases in which it is affirmatively given. In the case of Wiscart v. Dauchy,' the Supreme Court considered that its whole appellate jurisdiction depended upon the regulations of Congress, as that jurisdiction was given by the constitution in a qualified manner. The Supreme Court was to have appellate jurisdiction, "with such exceptions, and under such regulations, as Congress should make;" and if Congress had not provided any rule to regulate the proceedings on appeal, the court could not exercise an appellate jurisdiction; and if a rule be provided, the court could not depart from it. In pursuance of this principle, the court decided in Clarke v. Bazadone, that a writ of error did not lie to that court from a court of the United States' territory north-west of the Ohio, because the act of Congress had not authorized an appeal or writ of error from such a court. It was urged, that the judicial power extended to all cases arising under the constitution, and that where the Supreme Court had not original, it had appellate jurisdiction, with such exceptions, and under such regulations, as Congress should make; and that the appellate power was derived from the constitution, and must be full and complete, in all cases appertaining to the federal judiciary,

a New-York v. Connecticut, 4 Dallas, 3.

b 3 Dallas, 321.

c 1 Cranch, 212.

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where Congress had not by law interfered and controled it by exceptions and regulations. The court, however, adhered to the doctrine which they had before laid down, and proceeded upon the principle, that though the appellate powers of the court were given by the constitution, they were limited entirely by the judiciary statutes, which are to be understood as making exceptions to the appellate jurisdiction of the court, and to imply a negative on the exercise of such a power, in every case but those in which it is affirmatively given and described by statute. This was the principle also explicitly declared in the case of The United States v. More, and in the case of Durousseau v. The United States.b In the first of those cases, the rule of construction was carried to the extent of holding that no appeal or writ of error lay in a criminal case from the Circuit Court of the District of Columbia, because the appellate jurisdiction, as to that district, applied, by the terms of the statute, to civil cases only. The rule was afterwards, in Ex parte Kearney, laid down generally, that the Supreme Court had no appellate jurisdiction from Circuit Courts, in criminal cases, confided to it by the laws of the United States. Nor has it any appellate jurisdiction over a judgment of the Circuit Courts, in cases brought before it by writ of error from a District Court, though it has over judgments and decrees of the Circuit Courts, in suits brought before them by appeal from the District Courts.d

er confined

sing under

(5.) The constitution says, that the judicial power shall Judicialpow extend to all cases arising under the constitution, laws and to cases aritreaties of the United States; and it has been made a ques- the constitution, as to what was a case arising under a treaty. In and laws.

tion, treaties

a 3 Cranch, 159. b 6 Cranch, 307.

c7 Wheaton, 38.

d United States v. Goodwin, 7 Cranch, 108. United States v. Gordon, Ibid. 287.

Appellate jurisdiction

matter on

Owings v. Norwood, there was an ejectment between two citizens of Maryland, for lands in that state; and the defendant set up an outstanding title in a British subject, which he contended was protected by the British treaty of 1794. The Court of Appeals decided against the title thus set up; and the Supreme Court of the United States held that not to be a case within the appellate jurisdiction of the court, because it was not a case arising under the treaty. The treaty itself was not drawn in question, either directly or incidentally. The title in question did not grow out of the treaty, and as the claim was not under the treaty, the title was not protected by it; and whether the treaty was an obstacle to the recovery, was then a question exclusively for the state court.

(6.) The judiciary act of 1789 required, on error or appeal confined to from a state court, that the error assigned appear on the the record. face of the record, and immediately respect some question affecting the validity or construction of the constitution, treaties, statutes, or authorities of the Union. Under this act, it is not necessary that the record should state in terms the misconstruction of the authority of the Union, or that it was drawn in question; but it must show some act of Congress applicable to the case, to give the Supreme Court appellate jurisdiction. It will be sufficient, if it be apparent that the case, in point of law, involved one of the questions on which the appellate jurisdiction is made to depend by the 25th section of the judiciary act of 1789, and that the state court must have virtually passed upon it. But the court has been so precise upon this point, that in Miller v. Nicholls, notwithstanding it was believed that an act of Congress, giving the United States priority in cases of insolvency, had been disregarded, yet, as the fact of insol


a 5 Cranch, 344.

b Craig v. State of Missouri, 4 Peters' U. S. Rep. 410.

c 4 Wheaton, 311.

vency did not appear upon record, the court decided that they could not take jurisdiction of the case. In the exercise of their appellate jurisdiction, the Supreme Court can only take notice of questions arising on matters of fact appearing upon the record; and in all cases where jurisdiction depends on the party, it is the party named in the record."

(7.) The appellate jurisdiction may exist, though a state be a party, and it extends to a final judgment in a state court, on a case arising under the authority of the Union. The appellate powers of the federal judiciary over the state tribunals, was again, and very largely, discussed in the case of Cohens v. Virginia; and the constitutional authority of the appellate jurisdiction of the Supreme Court was vindicated, with great strength of argument, and clearness of illustration. The question arose under an act of Congress instituting a lottery in the district of Columbia, and the defendant below was criminally prosecuted for selling tickets in that lottery, contrary to an act of the legislature of Virginia. Judgment was rendered against him, in the highest court of the state in which the cause was cognizable, though he claimed the protection of the act of Congress. A writ of error was brought upon that judgment into the Supreme Court of the United States, on the ground that the prosecution drew in question the validity of the statute in Virginia, as being repugnant to a law of the United States, and that the decision was in favour of the state law. It was made a great point in the case, whether the Supreme Court had any jurisdiction.

The court decided, that its appellate jurisdiction was not excluded by the character of the parties, one of them being a state, and the other a citizen of the state. Jurisdiction was given to the courts of the Union in two classes of cases.

It exists, though a

state be

a party.

a Governor of Georgia v. Madrazo, 1 Peters' U. S. Rep. 110, Hickie v. Starke, Ibid. 98. Fisher v. Cockerell, 5 Ibid. 248.

b 6 Wheaton, 264.

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