diciary of the States, so long as that judiciary does not deny to any party any right guarantied or given under the Constitution and laws of the United States?

When this court determines that there is error in the judgment of the State Court denying the claim set up, then and not until then, it may reverse the judgment of the State Court, and open the cause to such judgment as the court itself shall pronounce, to give effect to the whole. And this is as it should be. A right guarantied by the federal authority having been denied and disregarded by the State Court, if the federal judiciary should not take the cause in its own hands to enforce that right, the laws of the United States would be a dead let ter. And while, in proceeding to enforce such rights, this court must necessarily decide questions of state law, it avoids any unnecessary interference with the state jurisdiction, by taking. as far as possible, the state law to be declared by the State Courts.

II. In cases coming up under the Act of 1867, if error be found in the decision denying a fed eral right claimed, the course of the court would be the same as under the Act of 1789. It is only in cases where the decision of the State Court on the federal question shall be found to be correct, that a question arises as to the course to be pursued. Under the Act of 1789, the course would be to affirm. What shall it be under the Act of 1867?

If, in a suit in equity for an account between two citizens of the same State, the defendant should set up that he was entitled under the Constitution of the United States to trial by jury, and the court should overrule the objection and proceed to a decree for the complainants, and on the case being brought here by writ of error, this court should concur with the State Court in the decision of the federal question, must this court, or can this court, proceed to examine every question raised in the record?

Such, on the first impression, might seem to be the duty of the court, if the construction of the Act of 1867 be not controlled by reference to the Constitution, and if the decision of the court be freed from the restraint imposed by the second clause of the 25th section of the Act of 1789. In the jurisdiction to re-examine, and to affirm or reverse cases brought up under the Act of 1867, and in case of reversal proceed to final decision and award execution, it is difficult to see in the Act itself anything to prevent this court from deciding every question at issue between the parties which it is necessary to decide to dispose of the case upon the merits. But if this court pursue this course, it determines a controversy between two citizens of the same State in a matter depending solely upon questions of state law, and in so doing, we submit, manifestly encroaches upon the exclusive province of the judiciary of the State.

III. Let us now consider whether the last clause of the 25th section of the Act of 1789 is repealed by the Act of 1867.

The first clause concerns only the grant of jurisdiction; the second concerns only the exercise of the jurisdiction.

Whether the last clause of the 25th section stand or fall, the class of cases coming within the jurisdiction of this court under the 2d section of the Act of Feb. 5, 1867, remains the same. No motion to dismiss for want of jurisdiction is ever founded on that clause.

The court must take jurisdiction and re-examine the decisions of a State Court, to a certain point, before the second clause of the section comes into operation.

Such being the office of the clause, is it repealed simply by not being repeated in the Act of 1867 (for there are no express words of repeal in that Act)? The repeal, then, if effected, must be by implication only.

The doctrine of text books is strong against repeal by implication. Dwarris, on Statutes and Constitution, says: The leaning of the courts is so strong against repealing the positive provisions of a former statute by construction, as almost to establish the doctrine of no repeal by implication.

See, further, the Am. Notes, No. 4, to Potter's Dwarris, ed. 1871, p. 154.

The decisions of this court support the positions above taken. Mr. Justice Story, delivering the opinion of this court in Wood v. U. S., 16 Pet., 342, 362, said:

"There must be a positive repugnancy between the provisions of the new law and those of the old; and even then the old law is repealed by implication only pro tanto to the extent of the repugnancy."

That there is no repugnancy between the second clause of the 25th section and the 2d sec tion of the Act of 1867 is manifest when we consider that the latter section is a transcript from the former section in all that relates to this subject; the only material difference being that, whereas, in case of reversal, the Act of 1789 required that the cause should be once remanded before this court could proceed to a final decision, the Act of 1867 authorizes the court on the first hearing to proceed to a final decision. This change, although in the highest degree important, does not affect the question as to the jurisdiction to reverse. It concerns a subsequent stage of the case. And as the second clause of the 25th section has stood with the first clause of the same section, so it may stand equally with the 2d section of the Act of 1867. It covers entirely different ground. The court may take jurisdiction of cases under the Act of 1867, as it has heretofore done under the Act of 1789, and in case of reversal, may pursue the more speedy course prescribed by the latter Act; but in determining for what causes it may reverse, it finds nothing whatever in the Act of 1867, nor elsewhere than in the Act of 1789.

The first gives this court jurisdiction of certain cases.

The second forbids this court to reverse the decisions of the State Courts, except in certain

cases.

ter's ed., 1871, p. 158.

And Mr. Justice Story, in the case above cited, argues not only from a comparison of the two statutes supposed to be in conflict, but from the object and character of the system of laws of which those two form a part, against the inten

tion of Congress to repeal the earlier statue. A similar argument may be urged with great force against the repeal suggested here.

If Congress intends now to pass this limit, to extend the judicial power of the United States over a class of cases which has never yet been subject to federal authority, this court surely has a right to look for something more certain than the mere omission of a part of an Act, in a later Act, which does not purport to cover the whole subject of the former, but leaves the court to discover by inference and construction, what part of the former Act is covered, and so suspended and repealed. If ever clear and unambiguous language is required in legislation, it would seem to be in defining the jurisdiction of the courts; and it seems monstrous that the tribunals appointed to construe the law should first have to discover by construction whether they have the power to construe them.

In the American editor's note 5, to the pas sage of Dwarris cited above, he cites authorities to show that The more natural if not necessary inference is, that the Legislature intended the new law to be auxiliary to and in aid of the purpose of the old law. We submit that this intention on the part of Congress in the present case is quite apparent.

IV. The power of Congress in respect to the jurisdiction of this court, conferred by the Constitution, is confined to the appellate jurisdiction only. After enumerating the cases of original jurisdiction, the Constitution, art. III., sec. 2, provides: "In all the 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 shall make."

The power here given is to regulate the exercise of jurisdiction, not to confer it. For the limit of that jurisdiction, we are referred to the previous definition of the federal jurisdiction in the Constitution itself.

It is no longer, if it ever was, an open question whether cases in which a federal question arises merely collaterally, are within the grant of federal judicial power. That was affirmed in the Act of 1789-which is a cotemporaneous construction of the Constitution (Cohens v. Vir ginia. 6 Wheat., 264), and has always been followed by this court. The Constitution, so construed, does not mean that such a case is a suit founded upon a federal law, but that when, in a suit founded upon a private contract between individuals, the construction of a federal law is drawn in question, then a case arises, and the federal jurisdiction attaches.

But in construing the Constitution in the light of the Act of 1789, we must take the whole Act into consideration, and especially the whole of the 25th section. And by that we find that, while in terms a section, in its first clause, it purports to give jurisdiction of any case in which a claim of federal right has been denied; yet, the whole section taken together, gives jurisdiction to decide the whole case only when a claim of federal right has been wrongfully denied. The Act of 1789 is, therefore, no authority for the position, that when a federal question arises within the terms of the 1st clause of the Act of 1789, the court may proceed to decide the whole case; for this court has not exercised such jurisdiction upon such a case merely. It

does not exercise jurisdiction of the whole case. until it shall have found that a claim of federal right has been not merely denied, but also wrongfully denied.

In considering the question whether this court had acquired jurisdiction to determine cases decided in the State Court, where no federal right was denied, we suggest that the circumstance just mentioned demands some consideration. If the determination of such cases be within the judicial power of the United States, it follows that from the organization of the government to the present time, Congress has omitted to provide for the exercise of the judicial power of the United States in a vast class of cases aris ing under the Constitution, laws and treaties of the United States. Such an omission, said this court in Martin v. Hunter's Lessee, 1 Wheat., 304, is not to be imputed to Congress.

Said the court in that case : Let this (the third) article be carefully weighed and consid ered. The language of the article throughout is manifestly designed to be mandatory upon the Legislature. P. 326. The judicial power must, therefore, be vested in some court by Congress: and to suppose it was not an obligation binding upon them, but might, at their pleasure, be omitted or declined, is to suppose that under the sanction of the Constitution, they might defeat the Constitution itself. A construction which would lead to such a result cannot be sound. | P. 327.

The judicial power shall extend to all cases enumerated in the Constitution. There are two classes of cases enumerated in the Constitution between which a distinction seems to be drawn. The first class includes cases arising under the Constitution, laws and treaties of the United States; cases affecting ambassadors, other public ministers and consuls, and cases of admiralty and maritime jurisdiction.

In this class the expression is, “And that the judicial power shall extend to all cases"; but in the subsequent part of the clause, which embraces all the other cases of national cognizance, and forms the second class, the word "all" is dropped, seemingly, or ex industria.

The vital importance of all the cases enumerated in the first class to the national sovereignty, might warrant such a distinction. Pp. 333. 334.

This opinion is an elaborate commentary on the Act of 1789, and we regard the passages from which the above extracts are taken as authority for these propositions, viz. that the whole judicial power of the United States, in respect to cases arising under the Constitution, laws and treaties of the United States, had been in an appellate form vested in the Supreme Court of the United States; and every case so arising had been provided for in that Act, and that the jurisdiction of the court, in respect of those cases, was limited only by the Constitution itself. This being so, we do not see how Congress can, by any supposed power of regulation, enlarge the jurisdiction of this court, either to consider any new class of cases arising under the Constitution, laws and treaties of the United States, or confer on this court jurisdiction to pronounce judgments or decrees which heretofore it could not pronounce. If, however, this be so, it appears to us that the 2d clause of the 25th section of the Act of 1789 has been

either an unconstitutional 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 curiæ, submitted the following:

Three questions may be considered :

1. Does the later statute repeal the earlier? 2. If so, what changes in the previously ex isting 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 admitting or rejecting evidence, or any other

question of local law, and the decision was against the right or title, not by reason of any misconstruction of the Constitution, but by reason 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 technical 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 (78 U. S., XX., 178); U. S. v. Tynen, 11 Wall., 92 (78 U. S., XX., 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 section of the Ju

diciary 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 (73 U. S., XVIII., 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. R. Co., 6 Blatchf., 362; S. C., 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 subjectmatter, 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, and 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 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, 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 de

pends, 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 exclusive ly of State Court cognizance which were suf. ficient 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 con sider the case in consultation, it was found that it could not be disposed of without ignoring or deciding some of these propositions, and it be came 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.

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 re-argument was had, and the court was fortunate in obtaining the assistance of very eminent and very able jurists. The importance of the proposition under discussion justified us in delaying 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 auSee 20 WALL, P, S., Book 22.

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 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:

THE 25TH SECTION OF, THE 2D SECTION OF THE
THE ACT OF 1789.
ACT OF 1867.
That a final judgment

or decree in any suit, in the highest court of law or equity of a State in which a decision 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 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 states, and the decision laws of the United is in favor of such their validity or where is drawn in question the construction of any clause of the Constitution, or statute, or commission held under the United States, against the title, right, privilege or exemption specially set up or claimed by either party, under such clause, Constitution, treaty, statute or commission, may be

That a final judgment or decree in any suit in the highest court of a State in which a decision in the suit could be had, where is drawn in ques tion the validity of a treaty or statute of.or an authority exercised under the United States,and the decision 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 laws of the United 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 is against the title, right, privilege or immunity specially set up or claimed by either party under suchConstitution, treaty, statute, commission or authority may be re-ex

and the decision is States, and the decision

re

re-examined and versed or affirmed in the Supreme Court of the United States upon a writ of error,the citation

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 Supreme Court of the United States, in the same manner and under the same regulations,and the writ shall have the same effect as if the judgplained of had been renment or decree comdered or passed in a Circuit Court, and the prosal shall also be the same, ceedings upon the reverexcept that the Supreme

28

amined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error, the citation being

signed by the Chief Jus

tice,or judge, or chancellor of the court rendering or passing the judgment or decree complained of or, by a Justice of the Supreme Court of the United States, in the same manner and under the same regulations, and the writ shall have the same effect as if the plained of had been renjudgment or decree comdered or passed in a court of the United States; and reversal shall also be the the proceeding after the same, except that the Su

437