and controlled 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, (a) 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, (c) 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) 6. Its Appellate Jurisdiction confined to Cases under the Constitu

tion, Treaties, and Laws. The Constitution says, that the judicial

(a) 3 Cranch, 159.

(b) 6 Cranch, 307.

(c) 7 Wheaton, 38; Ex parte Watkins, 3 Peters, 193; 7 Peters, 568, s. p.

(d) United States v. Goodwin, 7 Cranch, 108; United States v. Gordon, ib. 287. But see supra, 299, now altered by act of Congress. Mr. Justice Story, in the case Ex parte Christy, 3 How. 292, 317, stated that no appeal was given or lies from the judgments either of the district or circuit courts in criminal cases. So it was adjudged that the Supreme Court has no power of appeal from the decrees of the District Court sitting in bankruptcy, nor no power to issue a prohibition, except when the District Court is proceeding as a court of admiralty and maritime jurisdiction. See also infra, 383.

1 Ex parte McCardle, 7 Wall. 506; The Lucy, 8 Wall. 307; Ex parte Graham, 10 Wall. 541, 542.

Neither a writ of prohibition nor certiorari will lie from the Supreme to the Circuit Court in a criminal case. The only mode of bringing such a case before

the Supreme Court is by a certificate of the judges of the Circuit Court that they are divided in opinion. Ex parte Gordon, 1 Black, 503; Forsyth v. United States, 9 How. 571; United States v. Circuit Judges, 3 Wall. 673, 679.

power shall extend to all cases arising under the Constitution, laws, and treaties of the United States; and it has been made a question as to what was a case arising under a treaty. In *Owings v. Norwood, (a) there was an ejectment between 326 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. (b)1

(a) 5 Cranch, 344.

(b) A case, in the sense of the Constitution, says Mr. Justice Story (Commentaries on the Constitution, iii. 507), is a suit in law or equity, and arises when some subject touching the Constitution, laws, or treaties of the United States is submitted to the courts by a party who asserts his rights in the form prescribed by law. See also 9 Wheaton, 819, and 9 Peters, 224; [infra, n. 1, ad finem.]

1 Appeals from State Courts. Owings v. Norwood is confirmed by Henderson v. Tennessee, 10 How. 311; Verden v. Coleman, 1 Black, 472; [Miller v. Lancaster Bank, 106 U. S. 542; Long v. Converse, 91 U. S. 105; Hartell v. Tilghman, 99 U. S. 547.] See Lanfear v. Hunley, 4 Wall. 204, Semple v. Hagar, ib. 431, for cases where jurisdiction was declined; Reichart v. Felps, 6 Wall. 160, Silver v. Ladd, ib. 440, where jurisdiction was taken.

The Supreme Court cannot revise the judgment of a state court merely because the validity of a treaty or statute, or of an authority exercised under the United States, was drawn in question before it, if the decision was in favor of the authority, treaty, or statute. Strader v. Baldwin, 9 How. 261; Ryan v. Thomas, 4 Wall. 603; post, 330, n. (a). But it was held in a case arising under the Legal

Tender Acts that although the state court had decided in favor of the constitutionality of the acts, the Supreme Court of the United States had appellate jurisdiction, both by § 25 of the Judiciary Act of 1789 and by § 2 of the act of 1867 (ante, 300, n. 1), as the decision below was against a right claimed under the Constitution to have a note paid in coin. Trebilcock v. Wilson, 12 Wall. 687 (overruling Roosevelt v. Meyer, 1 Wall. 512). See The Banks v. The Mayor, 7 Wall. 16; Furman v. Nichol, 8 Wall. 44.

Again, if the judgment of the state court would have been the same if the error alleged to appear on the record had not been committed, or, in other words, if it does not appear by clear and necessary intendment that the question must have been raised and must have been decided in order to induce the judgment, the Supreme Court will not have jurisdic

7. Its Appellate Jurisdiction to Matter appearing on the Record. The Judiciary Act of 1789 required, on error or appeal from a

state court, that the error assigned appear on the face of the record, and immediately respect some questions 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 to 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. (c) But the court has been so precise upon this point, that in Miller v. Nicholls, (d) notwithstanding it was believed that an act of

(c) Craig v. State of Missouri, 4 Peters, 410. In Crowell v. Randell, 10 Peters, 368, the Supreme Court reviewed all the cases on the appellate jurisdiction of the court from the state courts; and it was decided, that to give the court appellate jurisdiction, two things must have occurred, and be apparent in the record, or by necessary inference from it: (1.) that some one of the questions stated in the 25th section of the Judiciary Act of 1789 did arise in the court below, and (2.) that a decision was actually made thereon by the same court in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. 12 Peters, 507; Ocean Ins. Co. v. Polleys, 13 Peters, 157; Coons v. Gallager, 15 Peters, 18, s. p. See also Conklin's Treatise (2d ed.), 26.

(d) 4 Wheaton, 311.

filed among the papers of a case) that there was a point in the case which was a ground of decision, but which was not within the act, the Supreme Court has jurisdiction. Rector v. Ashley, 6 Wall. 142. See further, Maguire v. Tyler, 8 Wall. 650.

It may be added that writs of error to state courts are not allowed as of right. The practice is to submit the record to a judge of the Supreme Court, who examines whether the case upon the face of the record will justify the allowance of the writ. Twitchell v. Commonwealth, 7 Wall. 321; Gleason v. Florida, 9 Wall. 779.

See, as to what is a cause or suit, ante, 297, n. (d). A petition for a writ of habeas corpus, duly presented, is one. Ex parte Milligan, 4 Wall. 2, 112. So is a

proceeding instituted in a state court by submitting an agreed statement of facts without any compulsory process. Aldrich v. Etna Co., 8 Wall. 491. But when a district judge was authorized by act of Congress to adjudicate on certain claims, which were to be paid if the Secretary of the Treasury should, on a report of the evidence, deem it advisable, it was held that the judge acted as a commissioner, and no appeal lay. United States v. Ferreira, 13 How. 40; Ex parte Zellner, 9 Wall. 244, 247; United States v. Circuit Judges, 3 Wall. 673. See the similar decision as to the Court of Claims as formerly regulated, ante, 297, n. 1.

As to what is a final judgment, see 316, n. 1.

*327

Congress, giving the United States priority in cases of insolvency, had been disregarded, yet, as the fact of insolvency * 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. (a)

8. Its Appellate Jurisdiction exists, though a State be a Party. — 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; (b) 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 favor 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 * 328 to the courts of the Union in two classes of cases. * In the first, their jurisdiction depended on the character of the cause, whoever might be the parties; and, in the second, it depended entirely on the character of the parties, and it was

(a) Governor of Georgia v. Madrazo, 1 Peters, 110; Hickie v. Starke, ib. 98; Fisher v. Cockerell, 5 id. 248.

(b) 6 Wheaton, 264.