HATING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

The Constitution of the United States is an instrument containing the grant of specific powers, and the government of the Union cannot claim any powers but what are contained in the grant, and given either expressly, or by necessary implication.1 The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the Constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the Constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied and universally understood, in respect to all the leading questions of constitutional law. (a) The people of the United States have declared the Constitution to be the supreme law of the land, and it is entitled to universal and implicit obedience. Every act of Congress, and every act of the legislatures of the

(a) Vide supra, 243. 1 But compare Legal Tender Cases, 12 Wall. 457, ante, 254, n. 1.

states, and every part of the constitution of any state, which are repugnant to the Constitution {314} of the United States, are necessarily void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the Union is declared to extend to all cases in law and equity arising under the Constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the law of the land. The determination of the Supreme Court of the United States, in every such case, must be final and conclusive, because the Constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed, as the Supreme Court declared, in the case of Turner v. The Bank of North America, (a) that the disposal of the judicial power, except in a few specified cases, belongs to Congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of Congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the Constitution might warrant. So, again, it has been decided, (b) that Congress has not delegated the exercise of judicial power to the circuit courts, but in certain specific cases. Both the Constitution and an act of Congress must concur in conferring power upon the circuit courts. A considerable portion of the judicial power, placed at the disposal of Congress by the Constitution, has been intentionally permitted to lie dormant, by not being called into action by law. (c) The 11th section of the Judiciary Act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the Constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction. (d)

1. Its Original Jurisdiction. — The original jurisdiction of the Supreme Court is very limited, and it has been decided that

(a) 4 Dallas, 8.

(b) M'Intire v. Wood, 7 Cranch, 504; Livingston v. Van Ingen, 1 Paine, 45; United States v. Hudson & Goodwin, 7 Cranch, 32; United States v. Bevans, 3 Wheaton, 336.

(c) Conkling's Treatise, 2d ed. 68.

(d) Smith v. Jackson, 1 Paine, 453; [Bath County v. Amy, 13 Wall. 244.]

Congress has no power to extend it.(e)1 (x) It is confined by the Constitution to those cases which affect ambassadors, other public ministers and consuls, and to those in which a state is a party;(f) and {315} it has been made a question, whether this original jurisdiction of the Supreme Court was intended by the Constitution to be exclusive. The Judiciary Act of 1789 seems to have considered it to be competent for Congress to vest concurrent jurisdiction, in those specified cases, in other courts; for it gave a concurrent jurisdiction, in some of those cases, to the circuit courts. (a) (y) In the case of the United States v. Ravara, (b) this point arose in the Circuit Court for Pennsylvania district, and it was held that Congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word "original" was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v. Madison (c) goes far towards establishing the principle of exclusive jurisdiction in the Supreme Court in all those cases of original jurisdiction. This last case was considered, in Pennsylvania v. Kosloff, (d) as shaking the decision in the case of Ravara; and yet the question was still left in doubt by the Supreme Court, in the case of the United

(e) Marbury v. Madison, 1 Cranch, 137. (f) Art. 3, sec. 2.

(a) Act of Congress, September 24, 1789, sec. 13. (b) 2 Dallas, 297.

(c) 1 Cranch, 137. (d) 5 Serg. & Rawle, 545.

1 Ex parte Vallandigham, 1 Wall. 243, 252; Ex parte Yerger, 8 Wall. 85, 98; The Alicia, 7 Wall. 571. On the other hand, since the act of 1789, in all cases where original jurisdiction is given by the Constitution, the court has authority to exercise it without any further act of Congress to regulate its process or confer jurisdiction. Kentucky v. Dennison, 24 How. 66, 98.

See, as to cases in which a state is a party, post, 323, n. 1.

In the case of a suit which was brought in the Circuit Court against a foreign consul, and which failed on other grounds, it was laid down by Nelson, J., that the jurisdiction of the Supreme Court was not exclusive. Graham v. Stucken, 4 Blatchf. 50; St. Luke's Hospital v. Barclay, 3 Blatchf. 259; Lorway v. Lousada, 1 Lowell, 77, 1 Am. L. Rev. 92: Pennsylvania v. Wheeling Bridge Co., 13 How. 518, 563, 579.

(x) Vide supra, 298, n. (y)

(y) The constitutional grant of original jurisdiction to the U. S. Supreme Court of all cases affecting consuls does not prevent

Congress from conferring original jurisdiction, in such cases, upon the subordinate courts of the Union. Bors v. Preston, 111 U. S. 252.

States v. Ortega, (e) and a decision upon it was purposely waived. (f)1

Admitting this original jurisdiction of the Supreme Court may be shared by other courts in the discretion of Congress, it has been decided, as we shall presently see, that this original jurisdiction cannot be enlarged, and that the Supreme Court cannot be vested, even by Congress, with any original jurisdiction in other cases than those described in the Constitution. It is the appellate jurisdiction of the Supreme Court that clothes it with most of its dignity and efficacy, and renders it a constant object of attention and solicitude on the {316} part of the governments and the people of the several states. (a) 2. Its Appellate Jurisdiction in Cases pending in State Courts. — The Supreme Court has appellate jurisdiction, in certain cases, over final decisions in the state courts, but it has no power to review its own decisions, either at law or in equity. (b)2

(e) 11 Wheaton, 467.

(f) In the official opinion of the Attorney-General of the United States, in 1797, it was held that the Supreme Court of the United States had no criminal jurisdiction, until given by statute, and that it was capable of having it conferred by law in the case of ambassadors, &c., as in the case of libels, &c. Op. Att.-Gen. i. 42.

(a) The Imperial Chamber and the Aulic Council in the Germanic Constitution were tribunals of appellate jurisdiction only. It was the original law of Germany, that no man could be sued, except in the state or province to which he belonged. Hallam on the Middle Ages, i. 371, 372.

(b) Washington Bridge Company v. Stewart, 3 How. 413; [Schell v. Dodge, 107 U. S. 629.]

l Ante, 314, n. 1.

2 It may decline to follow its own decisions in subsequent cases, however, as in the Legal Tender Cases, 12 Wall. 457, ante, 254, n. 1. See also Washington University v. Rouse, 8 Wall. 439, 444.

On the next point see, besides the act referred to in the text, the act of Feb. 5, 1867, ante, 300, n. 1.

As to what is a suit, see 297, n. (d) and n. 1. Aldrich v. Ætna Co., 8 Wall. 491; post, 326, n. 1, where the appellate jurisdiction of the Supreme Court to revise decisions of state courts is also considered.

A judgment affirming that of a lower court and remanding the case to that

court is not final within the act, Reddall v. Bryan, 24 How. 420; nor is an order affirming a refusal of a lower court to grant a new trial, Sparrow v. Strong, 4 Wall. 584; nor is a judgment reversing that of a lower court, and awarding a new trial, Tracy v. Holcombe, 24 How. 426; [Bostwick v. Brinkerhoff, 106 U. S. 3; ] nor is a decree upon a motion to dissolve an injunction in the course of a chancery cause, when the bill is not finally disposed of, Verden v. Coleman, 18 How. 86; nor, generally, is a decision which rests in the discretion of a court of original jurisdiction, Cook v. Burnley, 11 Wall. 672, 676; Wells v. McGregor, 13 id. 188. But a refusal by a state court to allow the re-

We have seen (c) that, by the act of Congress of the 24th of September, 1789, sec. 25, a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty, and the decision is against its validity; or where is drawn in question the construction of a treaty, and the decision is against the title, right, or privilege set up or claimed under it, may be re-examined and reversed or affirmed in the Supreme Court of the United States, upon a writ of error; and, upon reversal, the cause may be remanded for final decision, or the Supreme Court may, at their discretion, if the cause shall have been once remanded before, proceed to a final decision of the same, and award execution. The word final, in the Judiciary Act, is understood to apply to all judgments and decrees which determine the particular cause; and it is not to be confined to those judgments and decrees which are final so as to terminate all further or renewed litigation, in a new suit on the same right. (d) Under this appellate authority, it was declared in the case of Clerke v. Harwood,(e) that if the highest court in a

(c) Supra, 299.

(d) Weston v. City Council of Charleston, 2 Peters, 449. See Judge Conkling's Treatise on the Courts of the United States, 2d ed. 23, for a citation of the cases on this point. This treatise of the learned judge is copious, accurate, and a very useful digest for the profession. The details of the practice of the courts of the United States, supported by a full review of the statutes, judicial decisions, and rules of the courts, are excellent.

(e) 3 Dallas, 343.

moval of a suit to the United States courts is. Kanouse v. Martin, 14 How. 23. [In Williams v. Bruffy, 102 U. S. 248, a denial of a writ of supersedeas by the Virginia Court of Appeals was held a final judgment. So a judgment denying a writ of mandamus; this proceeding being now regarded as an action, and not merely as a prerogative writ. Hartman v. Greenhow, ib. 672. — B.]

The rule laid down as to appeals from United States courts is, that "when the decree decides the right to the property in contest, and directs it to be delivered up by the defendant to the complainant, or directs it to be sold, or directs the defendant to pay a certain sum of money to

the complainant, and the complainant is entitled to have such decree carried immediately into execution, the decree must be regarded as a final one to that extent, and authorizes an appeal to this court, although so much of the bill is retained by the Circuit Court as is necessary for the purpose of adjusting by a further decree the accounts between the parties pursuant to the decree passed." Forgay v. Conrad, 6 How. 201, 204; Thomson v. Dean, 7 Wall. 342.

The writ lies to an inferior state court if that is the highest court in which a decision could be made in the case under the state laws. Downham v. Alexandria, 9 Wall. 659.

state reverse the judgment of a subordinate court, and, on appeal to the Supreme Court of the United States, the judgment of the highest state court be in its turn reversed, it becomes a mere nullity, and the mandate for execution may issue to the inferior state court. But, in the case of Fairfax v. Hunter, (f) a writ of error from the Supreme Court of the United States was awarded to the Court of Appeals of Virginia, upon a judgment in

{317} that court against the right claimed under a construction of the treaties made with Great Britain in 1783 and 1794, and the judgment of the Court of Appeals was reversed, and the cause remanded, and the Court of Appeals below were required to cause the original judgment, which had been reversed in that court, to be carried into due execution. The Court of Appeals, when the cause came back to them, resolved that the appellate power of the Supreme Court of the United States did not extend to that court, and that so much of the act of Congress as extended the appellate jurisdiction of the Supreme Court to that court was not warranted by the Constitution; and that the proceedings in the Supreme Court were coram non judice in relation to that court; and they consequently declined obedience to its mandate. A writ of error was awarded upon this refusal, and the cause came up again before the Supreme Court of the United States, in a case in which the judgment of the court below drew in question and denied the validity of the statute of the United States, authorizing an appeal from a state court. (a)

A graver question could scarcely have arisen in that court, or one involving considerations of higher importance and delicacy, or more deeply affecting the permanency and tranquillity of the American Union. In the opinion which was delivered, the court observed that the Constitution unavoidably dealt in general language, and did not enter into a minute specification of powers, or declare the means by which those powers were to be carried into execution. This would have been a perilous and difficult, if not an impracticable task; and the Constitution left it to Congress, from time to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interest should require.

The judicial power of the United States is declared to extend to all cases arising under treaties made under the

(f) 7 Cranch, 608. (a) Martin v. Hunter, 1 Wheaton, 304.

{318} authority of the United States. It was an absolute grant of the judicial power in that case, and it was competent for the people of this country to invest the general government with that, or with any other powers they might deem proper and necessary, and to prohibit the states from the exercise of any powers which were, in their judgment, incompatible with the objects of the general compact. Congress were bound, by the injunctions of the Constitution, to create inferior courts, in which to vest all that judicial jurisdiction which was exclusively vested in the United States, and of which the Supreme Court cannot take any other than an appellate cognizance. The whole judicial power must be at all times vested, either in an original or appellate form, in some courts created under the authority of the United States. The grant of the judicial power was absolute, and it was imperative upon Congress to provide for the appellate jurisdiction of the federal courts, in all the cases in which judicial power was exclusively granted by the Constitution, and not given by way of original jurisdiction to the Supreme Court.

The court, in their examination of the judicial power, supposed that the Constitution took a distinction between two classes of enumerated cases. It intended that the judicial power, either in an original or appellate form, should extend absolutely to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made under their authority; and to all cases affecting ambassadors, other public ministers and consuls; and to all cases of admiralty and maritime jurisdiction; because those cases were of vital importance to the sovereignty of the Union, and they entered into the national policy, and affected the national rights, and the law and comity of nations. The original or appellate jurisdiction ought, therefore, to be commensurate with the mischiefs intended to be remedied, and the policy in view. But in respect to another class of cases, the Constitution seemed ex industria, to drop the word all, and to extend the jurisdiction of the {319} judiciary, not to all controversies, but to controversies in which the United States were a party, or between two or more states, or between citizens of different states, &c., and to leave it to Congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate. But whatever weight might be due to that distinction, it was held to be manifest that the judicial

power was unavoidably, in some cases, exclusive of all state authority, and, in all others, might be made so at the election of Congress.1 The Judiciary Act, throughout every part of it, and particularly in the 9th, 11th, and 13th sections, assumed that, in all cases to which the judicial powers of the United States extended, Congress might rightfully vest exclusive jurisdiction in their own courts. The criminal, and the admiralty and maritime, jurisdiction must be exclusive; and it was only in those cases where, previous to the Constitution, state tribunals possessed jurisdiction independent of national authority, that they could now constitutionally exercise a concurrent jurisdiction.

The exercise of appellate jurisdiction was not limited by the Constitution to the Supreme Court. Congress might create a succession of inferior tribunals, in each of which it might vest appellate as well as original jurisdiction. The appellate jurisdiction of the Supreme Court, in cases where it had not original jurisdiction, was declared to be subject to such exceptions and regulations as Congress might prescribe. It remained, therefore, entirely in the discretion of Congress to cause the judicial power to be exercised in every variety of form of appellate jurisdiction, and the appellate power was not limited to cases pending in the courts of the United States. If it had been limited to cases in those courts, it would necessarily follow that the jurisdiction of the federal courts must have been exclusive of state courts, in all the cases enumerated in the Constitution. If the judicial power of the United States extends to all cases arising under the Constitution, laws, and treaties of the Union, and to all cases of admiralty and maritime jurisdiction, {320} the state courts could not, consistently with the express grant in the Constitution, entertain any jurisdiction in those cases without the right of appeal. If the state courts might entertain concurrent jurisdiction over any of those cases without control, then the appellate jurisdiction of the United States, as to such cases, would have no existence, which would be contrary to the manifest intent of the Constitution. The appellate power of the federal courts must extend to the state courts, so long as the state courts entertain any concurrent jurisdiction over the cases which the Constitution has declared shall fall within the cognizance of the judicial power. It is very plain that the Constitution did contemplate

1 The Moses Taylor, 4 Wall. 411, 429; post, 369, n. 1.

that cases within the judicial cognizance of the United States would arise in the state courts, in the exercise of their ordinary jurisdiction; and that the state courts would incidentally take cognizance of the cases arising under the Constitution, the laws, and the treaties of the United States; and as the judicial power of the United States extended to all such cases, by the very terms of the Constitution, it followed, as a necessary consequence, that the appellate jurisdiction of the courts of the United States must and did extend to the state tribunals, and attach upon every case within the cognizance of the judicial power.

All the enumerated cases of federal cognizance are those which touch the safety, peace, and sovereignty of the nation, or which presume that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct or control the regular administration of justice. The appellate power, in all these cases, is founded on the clearest principles of policy and wisdom, and is deemed requisite to fulfil effectually the great and beneficent ends of the Constitution. It is likewise necessary, in order to preserve uniformity of decision throughout the United States upon all subjects within the purview of the Constitution; and the mischiefs of opposite constructions and contradictory decisions in the different states, on all these points of general concern, would be deplorable.

{321} The right of removal of a cause from a state court by a defendant, who is entitled to try his rights and assert his privileges in the national forum, is also the exercise of appellate jurisdiction; and the right of removal of a cause may exist before or after judgment, in the discretion of Congress. The Supreme Court, by a train of reasoning which appears to be unanswerable and conclusive, came to the decision, that the appellate power of the United States did extend to cases pending in the state courts, and that the 25th section of the Judiciary Act of 1789, authorizing the exercise of this jurisdiction in the specified cases by a writ of error, was supported by the letter and spirit of the Constitution. The judgment of the Court of Appeals, in Virginia, rendered on the mandate in the cause, and denying the appellate jurisdiction of the Supreme Court, was consequently reversed, and the judgment of the District Court in Virginia, which the Court of Appeals in Virginia had reversed, was affirmed.

3. Its Powers in Cases of Mandamus. — Whether the Supreme Court had authority to issue the compulsory process of mandamus to the state courts, to enforce the judgment of reversal, was a question which the court did not think it necessary to discuss or decide; and one of the judges, in the separate opinion which he gave in the cause, seemed to think that the Supreme Court, in the exercise of its appellate jurisdiction, was supreme over the parties and over the case, but that it had no compulsory control over the state tribunals. The court itself gave no intimation of an opinion whether it could or could not lawfully resort to compulsory or restrictive process, operating in personam upon the state tribunals; and it was no doubt deemed discreet not to assert more authority constitutionally vested in the court than was necessary for the occasion. If the appellate jurisdiction be founded, as it no doubt was in that case, on a solid basis, it would seem to carry with it, as of course, all the coercive power incident

to every such jurisdiction, and requisite to support it. {322} Another question which was largely discussed and profoundly considered by the Supreme Court, was touching its authority to issue a mandamus when not arising in a case under its appellate jurisdiction, and when not required in the exercise of its original jurisdiction. In the case of Marbury v. Madison, (a) the plaintiff had been nominated by the President, and, by and with the advice and consent of the Senate, had been appointed a justice of the peace for the District of Columbia, and the appointment had been made complete and absolute by the President's signature to the commission, and the commission had been made complete by affixing to it the seal of the United States. The Secretary of State, after all this, withheld the commission, and the withholding of it was adjudged to be a violation of a vested legal right, for which the plaintiff was entitled to a remedy by mandamus; and the only question was, whether the mandamus could constitutionally issue from the Supreme Court.(b)l(x)

(a) 1 Cranch, 137.

(b) In the case of Kendall v. The United States, 12 Peters, 524, it was decided that the Circuit Court for the District of Columbia had authority to issue and enforce

1 Mandamus. — See, besides the cases cited in note (b), Ex parte De Groot, 6

Wall. 497. A ministerial duty, the performance of which may be enforced by

(x) Mandamus will not issue until all adequate remedies are exhausted. Ex

parte Virginia Commissioners, 112 U. S. 177. As its office is to prevent an unlaw-

The Judiciary Act, sec. 13, authorized the Supreme Court to issue writs of mandamus, in cases warranted by the principles

obedience to a mandamus, requiring the performance of a mere ministerial act by the Postmaster-General, and which neither he nor the President had any authority to deny or control; for the Postmaster-General is not subject to the direction and control of the President, with respect to the execution of duties imposed upon him by law. The President has no dispensing power over the law, nor will a mandamus lie to correct the erroneous judgment of an inferior court. It is not the process to review judicial errors of any kind. Ex parte Hoyt, 13 Peters, 279; Ex parte Whitney, 13 Peters, 404. This is a settled principle in English and American law. The King v. Justices of Monmouthshire, 7 Dowl. & Ryl. 334; Judges of Oneida v. The People, 18 Wendell, 79; The People v. Judges of Dutchess C. P., 20 Wendell; 658.

mandamus or injunction, is one in respect to which nothing is left to discretion. It is a simple, definite duty, arising under circumstances admitted or proved to exist, and imposed by law. Mississippi v. Johnson, 4 Wall. 475, 498, stated post, 323, n. 1. Such is not the act of the Secretary of the Interior in ordering the Commissioner of the Land Office to cancel an entry for land. Gaines v. Thompson, 7 Wall. 347. See Secretary v. McGarrahan, 9 Wall. 298, and Litchfield v. Register & Receiver, ib. 571. Post, 323, n. 1. Nor does a mandamus lie to compel the head of a department to pay a salary, at the instance of the claimant of an office to which the salary is incident. United States v. Guth-

rie, 17 How. 284; United States v. Seaman, ib. 225; Reeside v. Walker, 11 How. 272; Brashear v. Mason, 6 How. 92; Commissioner of Patents v. Whiteley, 4 Wall. 522; post, 384, n. (c). Compare Grenville-Murray v. Earl of Clarendon, L. R. 9 Eq. 11. Some state courts have declined to issue the writ to compel a governor to perform a statutory duty of a ministerial sort, as inconsistent with the division of the powers of government into three co-ordinate departments. Mauran v. Smith, 8 R. I. 192, 217, and cases cited pro and contra. Ante, 296, n. 1, 221 n. 1; post, 323, n. 1.

Mandamus is an appropriate remedy to compel an inferior court to restore an

ful assumption of jurisdiction, (Ex parte Gordon, 104 U. S. 515; Smith v. Whitney, 116 U. S. 176), it will not be issued when the proper remedy is by appeal, as from the erroneous decree of a court of admiralty, Ex parte Pennsylvania, 109 U. S. 174; or where a State court is continuing to proceed in a cause after its removal. Chesapeake R. Co. v. White, 111 U. S. 134. But it is the proper remedy to compel judicial action, or whenever there is a real refusal to hear and decide a cause. Harrington v. Holler, 111 U. S. 796; Ex parte Morgan, 114 U. S. 174; Ex parte Parker, 120 U. S. 743; Re Chateaugay Ore & Iron Co., 128 U. S. 544; In re

Green, 141 U. S. 325; In re Haberman Manuf. Co., 147 id. 525; In re Hawkins, id. 486; In re Morrison, id. 14; Virginia v. Paul, 148 U. S. 107; In re Parsons, 150 U. S. 150; In re Hohorst, id. 653; Seymour v. United States, 2 App. D. C. 240. The Federal courts will not by mandamus or injunction control the action of departmental officers respecting matters within their jurisdiction and pending before them. New Orleans v. Paine, 147 U. S. 261. The performance of ministerial duties, not involving the exercise of judgment or discretion, may be required by the courts. Noble v. Union River Logging Railroad Co., 147 U. S. 165, 171; see

and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. There was no

attorney at law disbarred by it in excess of its jurisdiction, Ex parte Bradley, 7 Wall. 364; or when an appeal is refused by the inferior court, and to compel the production of the transcript, United States v. Gomez, 3 Wall. 752, 766. So, the writ will issue to compel the execution of a previous order of the Supreme Court on the reversal of the judgment of the court below. Ex parte Milwaukee R. R., 5 Wall. 825; Ex parte Dubuque & P. R. R., 1 Wall. 69. [Ex parte Bradley is approved in Virginia v. Rives, 100 U. S. 313. But mandamus will not issue to compel an inferior court to reverse a decision rendered while acting within its jurisdiction. Ex parte Burtis, 103 U. S. 238; Ex parte Railway Co., 101 U. S. 711; Ex parte Flippin, 94 U. S. 348. See Marquez v. Frisbie, 101 U. S. 473. But mandamus does lie to an inferior court to compel an exercise of discretionary power one way or the other. See Ex parte Newman, 14 Wall. 152. Except in cases of mandamus to inferior courts of the United States, and to officers of the United States, the federal courts issue the writ only in aid of

a jurisdiction otherwise acquired. Bath County v. Amy, 13 Wall. 244; Davenport v. County of Dodge, 105 U. S. 237, 242. In United States v. Shurz, 102 U. S. 378, a mandamus from the Supreme Court of the District of Columbia, to the Secretary of the Interior, ordering him to deliver a patent to part of the public lands, which patent had been regularly signed, sealed, countersigned, and recorded, was sustained by the Supreme Court. — B.]

In Riggs v. Johnson County, 6 Wall. 166, it was held that a mandamus might be issued by the Circuit Court to compel a county to levy a tax as required by statute, in order to pay a judgment recovered in that court on its bonds, although the levy has been enjoined by the state court, on the ground that the bonds were void by state laws. See also Webber v. Lee, ib. 210; United States v. Keokuk, ib. 514, 518: Ex parte Holman, 28 Iowa, 88; The Mayor v. Lord, 9 Wall. 409; post, 410. See further, generally, Von Hoffman v. Quincy, 4 Wall. 535; Knox County v. Aspinwall, 24 How. 376.

Carrick v. Lamar, 116 U. S. 426; United States v. Black, 128 U. S. 40; In re Penn. Co., 137 U. S. 451; United States v. Lamont, 155 U. S. 303; 2 App. D. C. 532; ante, p. 282, note; 19 Am. L. Rev. 505. The circuit courts can only issue writs of mandamus as ancillary to other proceedings, even where this writ is a civil action by the State law. Rosenbaum v. Bauer, 120 U. S. 450; Gares v. Northwest &c. Ass., 55 Fed. Rep. 209; In re Vintschger, 50 id. 459.

Mandamus will not operate to perform the office of an appeal, or a writ of error, or of quo warranto, nor will the writ be issued to compel a decision in a certain way by the lower court. In re Rice, 155 U. S.

396; see Be Burdett, 127 U. S. 771; Maverick Oil Co. v. Hanson (N. H.), 29 Atl. Rep. 461; United States v. Swan, 65 Fed. Rep. 647.

A mandamus has been issued by a State court to compel the speaker of a legislative assembly to perform a duty which is purely ministerial and imposed by the State Constitution. Benton v. Elder, 31 Neb. 169; see 49 Albany L. J. 436; Harvey v. McFarland (Iowa), 57 N. W. Rep. 410. In Kansas it is held that the Governor of a State may be required by mandamus or injunction to perform purely ministerial duties imposed upon him by statute, when these duties are such as might devolve upon any other officer or

doubt that the act applied to the case, and gave the power, if the law was constitutional; but the court was of opinion that the act, in this respect, was not warranted by the Constitution, because the issuing of a mandamus in this case would be an exercise of original jurisdiction not within the Constitution, and Congress had not power to give original jurisdiction to the Supreme Court in other cases than those described in the Constitution. It had not authority to give to the Supreme Court appellate jurisdiction, where the Constitution had declared that its jurisdiction should be original, nor original jurisdiction where the Constitution had declared it should be appellate. To enable one court to issue a mandamus, it must be shown to be an exercise, or {323} 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)

4. Its Original Jurisdiction where a State is a Party. — The Constitution gives to the Supreme Court original jurisdiction in those cases in which a state shall be a party; and in Fowler v. Lindsey, (b) the question arose, when a state was to be considered a

(a) Ex parte Crane, 5 Peters, 190. (x) In the case of Barry v. Mercein, [5 How. 103,] in the Supreme Court of the United States, at Washington, January, 1847, it was adjudged that a writ of error would not lie to the Supreme Court, upon the judgment of a Circuit Court, refusing to grant a writ of habeas corpus, in a case of a father claiming from the mother his infant daughter. The case did not come within the provision of the 22d section of the Judiciary Act of 1789. The case was not within the limits assigned by the act of Congress to the appellate jurisdiction of the Supreme Court. [Compare Ex parte Everts, 1 Bond, 197, with Bennett v. Bennett, Deady, 299.]

(b) 3 Dallas, 411.

agent. Martin v, Ingham, 38 Kansas, 641; Householder v. Morrill (Kansas), 40 Pac. Rep. 664. In Missouri, on the other hand, it is held that there is no valid distinction between the Governor's political and ministerial acts and that the executive cannot be in any way controlled by another department of state government. State v. Stone, 120 Mo. 428. See Greenwood C. L. Co. v. Routt (17 Col. 156), 31

Am. St. Rep. 284 & n. In Illinois, a citizen who refuses a municipal office, to which he has been appointed, may be required by mandamus to discharge its duties, although a penalty is imposed by statute for non-acceptance. People v. Williams, 145 Ill. 573.

(x) See also Re Chateaugay Ore & Iron Co., 128 U. S. 544.

party.1 (y) The parties in that suit claimed title to lands under grants from different states. The plaintiff brought his ejectment

1 A suit against the governor of a state in his official character is a suit against the state. Kentucky v. Dennison, Governor of Ohio, 24 How. 66. [In Louisiana v. Jumel, 107 U. S. 711, the Supreme Court (Justices Field and Harlan dissenting) refused to maintain a suit in equity, and to issue a mandamus to compel the officers of the State of Louisiana to carry out a law of that state, previously passed, for levying an annual tax and appropriating the proceeds to the payment of the state debt, and providing that the act should establish a contract between the state and its creditors. The officers had been prohibited, by an amendment to the

state constitution, from carrying out the act. It was contended, however, that this amendment was void, as impairing the obligation of the state contract. The court decided that the taking of the necessary steps to carry out the law passed was not a mere ministerial duty, and could not be enforced by mandamus; nor was any trust created by the act. Board of Liquidation v. McComb, 92 U. S. 531, arose under the same statute. The state board of liquidation were enjoined from admitting certain persons to the benefit of the statute. See further, for suits against officers as distinct from the government they represent, Davis v. Gray, 16 Wall.

(y) By the eleventh Amendment, "suits between individuals, unless the State is a party, in a substantial sense, are left untouched, no matter how much their determination may incidentally and consequentially affect the interests of a State, or the operations of its government." Matthews, J. in Poindexter v. Greenhow, 114 U. S. 270, 297. That Amendment does not apply when a State is interested only in a governmental way, as in a suit against State officers to restrain unjust and unreasonable rates fixed for common carriers by State authority. Reagan v. Farmers' Loan & Trust Co., 154 U. S. 362, 420.

A suit to compel State officers to do what they are required to do by a State statute is not a suit against the State. Rolston v. Missouri Fund Commissioners, 120 U. S. 390; In re Ayers, 123 U. S. 443.

The court will decline to take jurisdiction when it is clear that a State is an indispensable party. Cunningham v. Macon & Brunswick R. Co., 109 U. S. 446. In general it is only when some contract of the State is at the foundation of the litigation that the Federal courts

are deprived of jurisdiction. Chicago & N. W. Ry. Co. B. Dey, 35 Fed. Rep. 866, 870; see ante, 298, n. (y).

The statute providing for removals does not apply to a suit in which a State is the sole plaintiff. Stone v. South Carolina, 117 U. S. 430; People v. Southern Pacific R. Co., 65 Cal. 553. "The mere fact that a State is the plaintiff is not a conclusive test that the controversy is one in which this court is authorized to grant relief against another State or her citizens." . . . Controversies between two States have usually been such as related to the boundaries of their territory.... As to "controversies between a State and citizens of another State," the object of this jurisdiction was to avoid partiality, or suspicion thereof, through a national tribunal. "The grant is of 'judicial power,' and was not intended to confer upon the courts of the United States jurisdiction of a suit or prosecution by the one State, of such a nature that it could not, on the settled principles of public and international law, be entertained by the judiciary of the other State at all." Gray, J. in Wisconsin v. Pelican Ins. Co., 127 U. S. 265, 287.

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 {324} jurisdiction; and that jurisdiction may remain unimpaired, though the state may have parted

203; United States v. Lee, 106 U. S. 196. In New Hampshire v. Louisiana; New York v. Same, 108 U. S. 76, it was held that one state could not acquire jurisdiction to sue another in the Supreme Court of the United States, by taking assignments of debts due from defendant state to citizens of plaintiff state for purposes of collection merely. — B. ]

Shortly after the close of the rebellion a suit was brought in the Supreme Court purporting to be by the state of Texas, and sanctioned by the provisional governor of 1865, by the governor elected under the constitution of 1866, and by the governor afterwards appointed by the commander of the district. It was held to be well brought, three judges dissenting on the ground that, as a political fact, Texas was not one of the United States. Texas v. White, 7 Wall. 700. Two other cases of interest, arising out of the war, may as

well be stated here as elsewhere, though not strictly in place. In the first, the state of Mississippi sought to file a bill to enjoin Andrew Johnson, President of the United States, from carrying into effect the Reconstruction Acts, so called, which were alleged to be unconstitutional; but the court refused to allow it, on the ground that they could not restrain or enforce the performance of his executive and political functions by the President. Mississippi v. Johnson, 4 Wall. 475; ante, 296, n. 1. In the second case, a bill by the state of Georgia to enjoin the Secretary of War, general of the army, and district commander from carrying out the same Reconstruction Acts (acts of Congress of March 2 and 23, 1867), on the ground that their doing so would destroy the corporate existence of the state, was dismissed, on motion, for want of jurisdiction. Georgia v. Stanton, 6 Wall. 50: ante, 322, n. 1.

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 New York 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. (a)

5. Its Appellate Jurisdiction regulated by Congress. — The appellate jurisdiction of the Supreme Court exists only in those cases in which it is affirmatively given. In the case of Wiscart v. Dauchy, (b) 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, (c) that a writ of error did not lie to that court from a court of the United States territory northwest 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 a 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 {325} where Congress had not by law interfered and controlled it by exceptions and regulations. The court, however, adhered to the doctrine which they had before laid

(a) New York v. Connecticut, 4 Dallas, 3. In the case of Rhode Island v. Massachusetts, 12 Peters, 657, it was decided, after a very elaborate discussion, that the Supreme Court had jurisdiction to ascertain and establish boundaries between two states, and to restore and confirm rights of sovereignty and jurisdiction. (x)

(b) 3 Dallas, 321. (c) 1 Cranch, 212.

(x) See ante, 298, n. (y). After the true boundary is adjusted, grants previously made by one of the States beyond

its true limits are void, if not confirmed by the other State. Coffee v. Groover, 123 U. S. 1.

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.1 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 Constitution, 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. (x)

(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, and 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.

(x) See also Tennessee v. Davis, 100 U. S. 257, 290; In re Coy, 127 U. S. 731.

power shall extend to all cases arising under the Constitution, laws, and treaties of the United States; (y) and it has been made a

question as to what was a case arising under a treaty. In {326} Owings v. Norwood, (a) 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. (b)1 (z)

(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;

(y) By the U. S. Rev. Stats. § 707, the United States may appeal to the Supreme Court from all adverse judgments of the court of claims, and the claimant also has a like right of appeal where the amount in controversy exceeds $3,000, or his claim is forfeited under § 1089. Such review is limited to appeals, and cannot be had by writ of error. See United States v. Young, 94 U. S. 258; 95 id. 641; United States v. Jones, 119 U. S. 477; Shepherd v. Thompson; 122 U. S. 231; United States

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 author-

v. Gleeson, 124 U. S. 255; United States v. Davis, 131 U. S. 36; United States v. Mosby, 133 U. S. 273.

(z) When this jurisdiction depends solely upon some title, right, privilege, of immunity under the Constitution or laws of the United States, specially set up or claimed in the State Court, and there decided adversely thereto, "certain propositions," says Mr. Chief Justice Fuller in Sayward v. Denny, 158 U. S. 180, 183, "must be regarded as settled. 1. That the

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 rec-

ity, 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 jurisdiction. Williams v. Oliver, 12 How. 111; Gill v. Oliver, 11 How. 529; Millinger v. Hartupee, 6 Wall. 258, 262. Compare Minnesota v. Bachelder, 1 Wall. 109.

Again, the fact that a state court has declared a contract void which the Supreme Court might think valid is not enough. In such a case it must be the constitution or some law of the state which impairs the obligation of the contract. Railroad Co. v. Rock, 4 Wall. 177; Knox v. Exchange Bank, 12 Wall. 379; Northern R. R. v. The People, ib. 384. In Bridge Proprietors v. Hoboken Co., 1 Wall. 116, and Furman v. Nichol, 8 Wall. 44, the

certificate of the presiding judge of the State court, as to the existence of grounds upon which our interposition might be successfully invoked, while always regarded with respect, cannot confer jurisdiction upon this court to re-examine the judgment below. Powell v. Brunswick County, 150 U. S. 433, 439, and cases cited. 2. That the title, right, privilege, or immunity must be specially set up or claimed at the proper time and in the proper way. Miller v. Texas, 153 U. S. 535; Morrison v. Watson, 154 U. S. 111, 115, and cases cited. 3. That such claim cannot be recognized as properly made when made for the first time in a petition for rehearing after judgment. Loeber v. Schroeder, 149 U. S. 580, 585, and cases cited. 4. That the petition for the writ of error forms no part of the record upon which action is taken here. Butler v. Gage, 138 U. S. 52, and cases cited. 5.

Nor do the arguments of counsel, though the opinions of the State courts are now made so by rule. Gibson v. Chouteau, 8 Wall. 314; Parmelee v. Lawrence, 11 Wall. 36; Gross v. U. S. Mortgage Co., 108 U. S. 477, 484; United States v. Taylor, 147 U. S. 695, 700. 6. The right on which the party relies must have been called to the attention of the court, in some proper way, and the decision of the court must have been against the right claimed. Hoyt v. Sheldon, 1 Black, 518; Maxwell v. Newhold, 18 How. 511, 515. 7. Or, at all events, it must appear from the record, by clear and necessary intendment, that the Federal question was directly involved so that the State court could not have given judgment without deciding it; that is, a definite issue as to the possession of the right must be distinctly deducible from the record before the State court can be held to have dis-

ord, 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

question was whether a state law did not impair the obligation of contracts. 12 Wall. 383.

In order to give the court jurisdiction, the statute, the validity of which is drawn in question, must be passed by a state, a member of the Union; it is not enough even that it is passed by a territory. Miners' Bank v. Iowa, 12 How. 1. Acts of other organized political bodies within the limits of the Union must be dealt with either under the power to put down insurrections, or by the penal laws of the state or territory in which they are acting. Scott v. Jones, 5 How. 343; post, 349. The court has no jurisdiction to determine whether a government organized in a state is the duly constituted government of the state or not. That is a question for the politica] power. Luther v. Borden,

7 How. 1; Texas v. White, 7 Wall. 700, 730, stated 323, n, 1. For other cases where the court has declined to entertain political questions, see 286, n. 1; The Protector, 12 Wall. 700 (as to the beginning and end of the rebellion).

Whether the act of Feb. 5, 1867, ante, 300, n. 1, repeals by omission the requirement of the Judiciary Act of 1789 that the error shall appear on the face of the record was left unsettled in Stewart v. Kahn, 11 Wall. 493, 503; Trebilcock v. Wilson, 12 Wall. 687, 694; but it seems that the law has not been changed, Klinger v. Missouri, 13 Wall. 257, 262. Cases under the former act are Walker v. Villavaso, 6 Wall. 124; The Victory, ib. 382; Furman v. Nichol, 8 Wall. 44; Worthy v. Commissioners, 9 Wall. 611; Insurance Co. v. The Treasurer, 11 Wall. 204. See

posed of such Federal question by its decision. Powell v. Brunswick County, 150 U. S. 400, 433."

In order to obtain a review in the Supreme Court the judgment of the highest State court must have been against the plaintiff in error and have necessarily involved a Federal question duly claimed in the State court, and not merely have presented such a question with others in themselves sufficient to maintain the judgment. Brooks v. Missouri, 124 U. S. 394; Hale v. Akers, 132 U. S. 554; San Francisco v. Itsell, 133 U. S. 65; Cole v. Cunningham, id. 107; Hopkins v. McLure, id. 380; Beatty v. Benton, 135 U. S. 244; Johnson v. Risk, 137 U. S. 300; Butler v. Gage, 138 U. S. 52; Beaupré v. Noyes, id. 397; Missouri v. Andriano, id. 496; Davis v. Texas, 139 U. S. 651; Leeper v. Texas, id. 462; Williams v. Heard, 140 U. S. 529; New York & N. E. R. Co. v. Woodruff, 153

U. S. 689; Hagar v. California, 154 U. S. 639. See also Starin v. New York, 115 U. S. 248; Germania Ins. Co. v. Wisconsin, 119 U. S. 473; Kansas Pacific R. Co. v. Atchison R. Co., 112 U. S. 414; New Orleans Water-works Co. v. Louisiana Sugar Refining Co., 125 U. S. 18; DeSaussure v. Gaillard, 127 U. S. 216; Chappell v. Bradshaw, 128 U. S. 132; Miller v. Swann, 150 U. S. 132; Eustis v. Bolles, id. 361; Newport Light Co. v. Newport, 151 U. S. 527; Tennessee v. Union & P. Bank, 152 U. S. 454; New Orleans v. Benjamin, 153 U. S. 411; Reagan v. Fanners' L. & T. Co., 154 U. S. 362, 420; No. Pac. R. Co. v. Patterson, id. 130; Gray v. Coan, id. 589; St. Louis, &c. Ry. Co. v. Merriam, 156 U. S. 478. So the Supreme Court has no jurisdiction to review by writ of error a State judgment alleged to impair the obligation of a contract, when no constitutional objection was made in the State court. Morrison v. Watson, 154

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

Bridge Proprietors v. Hoboken Co., 1 Wall. 116; Nauer v. Thomas, 13 Allen, 572.

If the court can see clearly from the whole record, that a certain provision of the Constitution was relied on by the party who brings the writ of error, also that the right thus claimed by him was denied, it has jurisdiction, although the act of Congress or part of the Constitution supposed to be infringed by the state law is not pointed out in express words, Bridge Proprietors v. Hoboken Co., 1 Wall. 116, 143; Furman v. Nichol, 8 Wall. 44, 56; and it is said that if there is no valid ground for the judgment except one which raises a question under the act, it will be presumed to be based upon that, and jurisdiction will be taken. Klinger v. Missouri, 13 Wall. 257.

If it does not appear by necessary intendment from the record that a question within the act was raised and passed upon, there is no appellate jurisdiction,

although the presiding judge certifies that it was so in fact. Railroad Co. v. Rock, 4 Wall. 177; Parmelee v. Lawrence, 11 Wall. 36. So the opinion cannot be resorted to for the purpose of showing that a question of federal cognizance was decided by the state court. Gibson v. Chouteau, 8 Wall. 314. So, on the other hand, if the record raises a question within the act, and it appears from the opinion only of the state court (although the same is required by a state law to be 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 exam-

U. S. 111. Adverse judgments upon rights or titles claimed under authority exercised under the general government may thus be reviewed. Carson v. Dunham, 121 P. S. 421. Mining claims and infringements of letters patents and copyrights necessarily involve Federal laws and questions. Cons. W. G. M. Co. v. Champion M. Co., 62 Fed. Rep. 945; Walter A. Wood H. Co. v. Minneapolis E. H. Co., 61 id. 256; Haggin v. Lewis, 66 id. 199.

When a Federal question is necessarily involved in the decisions of a State court, it need not appear affirmatively in its opinion or in the record that that question was raised and decided. Kaukauna W. P. Co. v. Green Bay & M. Canal Co., 142 U. S. 254. The judgment of the highest State court must have been final, not merely interlocutory. Farnsworth v. Montana, 129 U. S. 104; McCollum v.

Howard, 154 U. S. 577. Decisions by the State court relating to its own practice, as that amendments of the record must be made before the end of the term, will be followed by the U. S. Supreme Court, and are not a denial by a State of the equal protection of the law to individuals. Fielden v. Illinois, 143 U. S. 452. A point once decided by the U. S. Supreme Court is not a Federal question. Kansas v. Bradley, 26 Fed. Rep. 289. Under the U. S. Rev. Stats. 709, the jurisdiction of the Supreme Court depends upon the question presented, and not upon the parties' citizenship. French v. Hopkins, 124 U. S. 524; McKenna v. Simpson, 129 U. S. 506.

The decision of a State court construing the laws of the Territory from which that State was formed will be followed by a Federal court, when there are no cogent

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

(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 he 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.

ines 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. Ætna 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.

reasons for disregarding it. Capital Bank v. Barnes County School District No. 26, 63 Fed. Rep. 938. And if a Territory is admitted as a State pending an appeal to the U. S. Supreme Court from the Territorial court, and later the State's highest court reaches an opposite result on the same question, the latter decision will he followed on the appeal. Stutsman County v. Wallace, 142 U. S. 293. Contra, as to the binding effect of a State decision overruling an earlier one. National F. & P. Works v. Oconto Water Co., 68 Fed. Rep. 1006. But a Federal court cannot originally entertain a bill for the review and rehearing of a suit brought in a State court. Graver v. Faurot. 64 Fed. Rep. 241. It is only by removal that a Federal

circuit court can revise the action of a State court of equity. Sharp v. Whiteside, 19 Fed. Rep. 156.

A Federal Court cannot restrain a criminal prosecution by a State under an unconstitutional State statute, or a city ordinance which contravenes the United States Constitution. Minneapolis &c. Ry. Co. v. Milner, 57 Fed. Rep. 276; Yick Wo v. Crowley, 26 id. 207. Under the U. S. Rev. Stats. § 1979, criminal proceedings threatened under an unconstitutional State law, may be enjoined, if their avowed object is to obstruct the plaintiff in the pursuit of a lawful business under the Interstate Commerce Law. M. Schandler B. Co. v. Welch, 42 Fed. Rep. 561; Donald v. Scott, 67 id. 854.

court has been so precise upon this point, that in Miller v. Nicholls, (d) 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 insolvency

{327} 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. (x)

— 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 to the courts of the Union in two classes of cases. {328} In

(d) 4 Wheaton, 311.

(a) Governor of Georgia D. Madrazo, 1 Peters, 110; Hickie v. Starke, ib. 98;

Fisher v. Cockerell, 5 id. 248. (b) 6 Wheaton, 264.

(x) See infra, 351, n. (x).

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 unimportant what might be the subject of controversy. The general government, though limited as to its objects, was supreme with respect to those objects. It was supreme in all cases in which it was empowered to act. A case arising under the Constitution and laws of the Union was cognizable in the courts of the Union, whoever might be the parties to that case. The sovereignty of the states was limited or surrendered, in many cases, where there was no other power conferred on Congress than a constructive power to maintain the principles established in the Constitution. One of the instruments by which that duty might be peacefully performed was the judicial department. It was authorized to decide all cases of every description, arising under the Constitution, laws, and treaties of the Union; and from this general grant of jurisdiction, no exception is made of those cases in which a state may be a party. It was likewise a political axiom, that the judicial power of every well-constituted government must be coextensive with the legislative power, and must be capable of deciding every judicial question which grows out of the Constitution and laws. The most mischievous consequences would follow, from the absence of appellate jurisdiction over a state court, where a state was a party, for it would prostrate the government and laws of the Union at the feet of every state. The powers of the government could not be executed by its own means, in any state disposed to resist its execution by a course of legislation. If the courts of the Union could not correct the judgments of the state courts, inflicting penalties under state laws, upon individuals executing the laws of the Union, each member of the confederacy would possess a veto on the will of the whole. No government ought to be so defective in its organization as not to contain within itself the means of securing the execution of its own laws. If {329} each state was left at liberty to put its own construction upon the constitutional powers of Congress, and to legislate in conformity to its own opinion, and enforce its opinion by penalties, and to resist or defeat, in the form of law, the legitimate measures of the Union, it would destroy the Constitution, or reduce it to the imbecility of the old confederation. To prevent such mischief

and ruin, the Constitution of the United States, most wisely and most clearly, conferred on the judicial department the power of construing the Constitution and laws in every case, and of preserving them from all violation from every quarter, so far as judicial decisions could preserve them.

The case before the court was one in which jurisdiction depended upon the character of the cause, as it was a case arising under the law of the Union. It was not an ordinary case of a controversy between a state and one of its citizens, for there the jurisdiction would depend upon the character of the parties. The court concluded, that the appellate power did extend to the case, though a state was a party, because it was a case touching the validity of an act of Congress, and the decision of the state court was against its validity; and in all cases arising under the Constitution, laws, and treaties of the Union, the jurisdiction of the court may be exercised in an appellate form, though a state

be a party.

The court observed, that the amendment to the Constitution, declaring that the judicial power was not to be construed to extend to any suit in law or equity commenced or prosecuted against a state by individuals, did not apply to a writ of error, which was not a suit against a state, within the meaning of the Constitution; and the jurisdiction of the Supreme Court, in cases arising under the Constitution, laws, and treaties of the Union, may be exercised by a writ of error brought upon the judgment of a state court. The United States are one nation and one people, as to all cases and powers given by the Constitution, and the judicial power {330} must be competent not only to decide on the validity of the constitution or law of a state, if it be repugnant to the Constitution or to a law of the United States, but also to decide on the judgment of a state tribunal enforcing such unconstitutional law. The federal courts must either possess exclusive jurisdiction in all cases affecting the Constitution and laws and treaties of the Union, or they must have power to revise the judgments rendered on them by the state tribunals. If the several state courts had final jurisdiction over the same cases, arising upon the same laws, it would be a hydra in government, from which nothing but contradiction and confusion could proceed. Nothing can be plainer than the proposition, that the Supreme Court of the nation must have

power to revise the decisions of local tribunals on questions which affect the nation, or the most important ends of the government might be defeated, and we should be no longer one nation for any efficient purpose. The doctrine would go to destroy the great fundamental principles on which the fabric of the Union stands. (a)1

We have now finished the review of the most important points that have arisen in the jurisprudence of the United States, on the subject of the original and appellate jurisdiction of the Supreme Court. So far as the powers of that court, under the Constitution, and under the 25th section of the Judiciary Act of 1789, have been drawn in question, they have been maintained with great success, and with an equal display of dignity and discretion. (x)

(a) In Williams v. Norris and Montgomery v. Hernandez, 12 Wheaton, 117, 129, under the 25th section of the Judiciary Act of 1789, c. 20, it was held that the Supreme Court has no appellate jurisdiction, unless the decision in the state court be against the right or title set up by the party under the Constitution or statute of the United States, and the title depended thereon; or unless the decision be in favor of a state law, when its validity was questioned, as repugnant to the Constitution of the United States, and the right of the party depended upon the state law.

1 Ante, 326, n. 1.

(x) The appellate jurisdiction of the Supreme Court was materially affected by the Act of March 3, 1891, ch. 517 (26 St. at L. 826; see also Ibid. 1115), establishing in each circuit a circuit court of appeals, consisting of three judges; which act abolished (by § 4) the previous appellate jurisdiction of the circuit courts; and provided (§5) for an appeal from the district or circuit courts direct to the Supreme Court in certain cases. The marshals thereby provided for these courts were abolished by the Act of July 16, 1892 (27 St. at L. 222), which devolved the duties of that office upon the U. S. marshals. See further Rules 36, 37, 38 of the U. S. Supreme Court Rules. These courts were established for the relief of the Supreme Court and for the despatch of business therein, and the above Act had immediate operation, though previous judgments could not be reviewed by them. See In re Claasen, 140 U. S. 200; McLish v. Roff,

141 U. S. 661; In re Woods, 143 U. S. 202; Lau Ow Bew v. United States, 144 U. S. 47; 47 Fed. Rep. 641; Lau Ow Bew, petitioner, 141 U. S. 583; Mattingly v. N. W. Va. R. Co., 158 U. S. 53; New York, &c. R. Co. v. Bennett, 49 Fed. Rep. 598; Baltimore & O. R. Co. v. Andrews, 50 id. 728; United States v. National Exchange Bank, 53 id. 9.

The question whether the judgment of the circuit court of appeals is final, as provided in the Act of Mar. 3, 1891, § 6, when the jurisdiction is dependent upon diverse citizenship, is determined by the summons and declaration, and not by the subsequent proceedings. Borgmeyer v. Idler, 16 S. C. 34. This court may take jurisdiction, although a question is involved which arises under the Federal constitution, if there are also involved other questions sufficient to dispose of the case. Green v. Mills, 69 Fed. Rep. 852. It may entertain a motion for a new trial, made

after judgment, after a writ of error to review the judgment has issued from the Supreme Court. Shreve v. Cheesman, 69 Fed. Rep. 785; see also Duplex P. Co. v. Campbell P. & M. Co., id. 250.

The circuit court in which the suit was tried may issue from its clerk's office a writ of error returnable to the court of appeals. Northern Pacific R. Co. v. Amato, 49 Fed. Rep. 881; 144 U. S. 465. This court has no jurisdiction where more than six months intervene between the entry of judgment and the date on which the writ of error is sued out. Union Pac. Ry. Co. v. Colorado Eastern Ry. Co., 54 Fed. Rep. 22; Coulliette v. Thomason, 50 id. 787. As to the binding effect of this court's decisions upon the circuit court see Norton v. Wheeler, 57 Fed. Rep. 927; Macon v. Georgia P. Co., 60 id. 781; Edison Electric Light Co. v. Bloomingdale, 65 id. 212.

The decision of this court on a writ of error to the final judgment of the Circuit Court is not final when the jurisdiction of the latter court depends solely on the fact that the defendant is a corporation created by Act of Congress, and consequently the suit arises under a Federal statute; the effect being to extend the appellate jurisdiction of the Supreme Court to such cases where the matter in controversy exceeds $1,000. Northern Pacific R. Co. v. Amato, 144 U. S. 465. The United States can appeal to the Court of Appeals from the Circuit Court's adverse judgment in the suit of a clerk of the district court to recover his fees under the Act of Mar. 3, 1887. United States v. Morgan, 64 Fed. Rep. 4. When a plea to the jurisdiction of the circuit court is overruled, there must be a final judgment or decree upon the merits before the question of jurisdiction can be reviewed by writ of error or appeal; then that question alone may be taken to the Supreme Court upon a certificate from the lower court; or the whole case be brought before the circuit court of

appeals, which may, in its discretion, certify the question of jurisdiction to the Supreme Court. McLish v. Roff, 141 U. S. 661; Columbus Watch Co. v. Robbins, 148 U. S. 266; Cincinnati H. & D. R. Co. v. McKeen, 149 U. S. 259; Maynard v. Hecht, 151 U. S. 324; United States v. Jahn, 155 U. S. 109; Baltimore & O. R. Co. v. Meyers, 62 Fed. Rep. 367; Fabre v. Cunard S. Co., 59 id. 500; Barling v. Bank of British North America, 50 id. 260; Farmers' & M. State Bank v. Armstrong, 49 id. 600; The Alliance, 70 id. 273.

Under § 5 of the act of 1891, providing for appeals and writs of error from the district or circuit courts to the Supreme Court, an appeal which is within the jurisdiction of the Supreme Court is not within the jurisdiction of the circuit court of appeals. McLish v. Roff, 141 U. S. 661; Chicago, &c., Ry. Co. v. Evans, 58 Fed. Rep. 433; Hastings v. Ames, 68 id. 726. See Carey v. Houston, &c., Ry. Co., 150 U. S. 170; Aspen M. & S. Co. v. Billings, id. 31; Mason v. Pewabic M. Co., 153 U. S. 361; In re Lehigh Min. & Manuf. Co., 156 U.S. 322; United States v. Swan, 65 Fed. Rep. 647.

Under that section, in cases involving the constitutional validity of a Federal statute, an appeal lies direct to the Supreme Court, although taken after the Act went into effect. Horner v. United States, 143 U. S. 570.

The circuit courts of appeals have power, by § 11 of the Act of March 3, 1891, to amend a writ of error, and may thus amend by sealing the writ with its seal. Cotter v. Ala. G. S. R. Co., 61 Fed. Rep. 747. Under §§ 4-6 of that Act habeas corpus proceedings in the district courts are now reviewed by the circuit court of appeals. United States v. Fowkes, 53 Fed. Rep. 13. An appeal to this court may now be taken in any injunction proceeding. 28 St. at L. 666.