Appellate Jurisdiction of the Supreme Court.

277. But it is not required that the record it by a party who asserts his rights in the form should in terms state a misconstruction of the prescribed by law. It then becomes "a case." act of congress, or that it was drawn into ques- Osborn v. The Bank of the United States, 9 tion; it is sufficient that the record should show Wheat. 738; 5 Cond. Rep. 741. that an act of congress was applicable to the case. Ibid.

285. If it were sufficient to withdraw a case brought from a state court, from the revisory 278. Where a party claiming a title to lands jurisdiction of the supreme court, because seve under an act of congress, brought a bill for a ral questions may arise in it on general princiconveyance, and stated several equitable cir-ples of law, and not on any act of congress; cumstances in aid of his title; and the state almost every case, involving the construction of court in which the suit was brought dismissed a law, would be withdrawn: and a clause in the the bill, and the cause was brought to the su- constitution relating to a subject of vital importpreme court of the United States by appeal, un-ance to the government, and expressed in the der the twenty-fifth section of the judiciary act most comprehensive terms, would be construed of September 24, 1789, ch. 20, on the ground of to mean nothing. There is scarcely any case, an alleged misconstruction of the act of congress, every part of which depends on the constitution, by the state court: the supreme court could not laws, or treaties of the United States. The take into consideration any distinct equity, aris- questions, whether the fact alleged as the founing out of the contracts or transactions of the|dation of the action be real or fictitious; whether parties, and creating a new and independent the conduct of the plaintiff has been such as to title; but was confined to an examination of the entitle him to maintain his action; whether his title as depending upon the construction of the right is barred; whether he has received satis act of congress. Matthews v. Zane et al., 7 faction, or in any manner released his claims, Wheat. 164; 5 Cond. Rep. 265. are questions, some or all of which may occur in every case: and if their existence be sufficient to arrest the jurisdiction of the court, words which seem intended to be as extensive as the constitution, laws, and treaties of the Union; which seem designed to give the courts of the government the construction of all its acts, so far as they affect the rights of individuals, would be reduced to almost nothing. Ibid.

279. It is only when the state court decides against the claim set up under a law of the United States, that appellate jurisdiction is given to the supreme court from state decisions. M'Cluny v. Silliman, 6 Wheat. 598; 5 Cond. Rep. 197.

280. The supreme court of the United States has no jurisdiction under the twenty-fifth section of the judiciary act of 1789, ch. 20, unless the judgment or decree of the state court be a final judgment or decree. A judgment reversing that of an inferior court, and awarding a venire facias de novo, is not a final judgment. Houston v. Moore, 3 Wheat. 433; 4 Cond. Rep. 286.

286. Under the twenty-fifth section of the judiciary act of September 24th, 1789. ch. 20, where the construction of any clause in the constitution, or any statute of the United States, is drawn in question, in any suit in a state court, the decision 281. The appellate power of the United States must be against the title or right set up by the extends to cases pending in the state courts; and party, under such clause of the constitution or the twenty-fifth section of the judiciary act, statute; otherwise the supreme court has no which authorizes the exercise of this jurisdic-appellate jurisdiction in the case. It is not suftion in the specified cases by a writ of error, is supported by the letter and spirit of the constitution. Martin v. Hunter, 1 Wheat. 304; 3 Cond. Rep. 575.

282. If a cause has been remanded from the supreme to a state court, and the state court decline or refuse to carry into effect the mandate of the supreme court, the supreme court will proceed to a final decision of the cause, and itself award execution thereon. Ibid. 353.

283. If the construction or validity of a treaty of the United States is drawn in question in the state courts, and the decision is against its validity, or the title specially set up by either party under the treaty, the supreme court has jurisdiction to ascertain that title, and to determine its legal meaning; and is not confined to the abstract construction of the treaty itself. Ibid. 358.

284. The second article of the constitution of the United States, enables the judicial department to receive jurisdiction to the full extent of the constitution, laws, and treaties of the United States, when any question respecting them shall assume such a form, that the judicial power is capable of acting on it. That power is capable of acting only, when the subject is submitted to

ficient that the construction of the statute was
drawn in question, and that the decision was
against the title of the party; it must appear
that his title depended upon the statute.
liams v. Norris, 12 Wheat. 117; 6 Cond. Rep.
462.

Wil

287. Under the twentieth section of the judiciary act of September 24th, 1789, ch. 20, the supreme court has no appellate jurisdiction from the final judgment of the highest court of a state, in a suit where is drawn in question the construction of a statute of or a commission held under the United States, unless some right, title, privilege, or exemption, under such statute, be specially set up by the party, and the decision be against the claim so made by him. Montgo mery v. Hernandez et al., 12 Wheat. 129; 6 Cond. Rep. 475.

288. It is no objection to the exercise of the appellate jurisdiction of the supreme court, that one of the parties is a state, and the other a citizen of that state. Cohens v. Virginia, 6 Wheat. 264; 5 Cond. Rep. 90.

289. The second section of the third articie of the constitution defines the extent of the judicial power of the United States. Jurisdiction is given to the courts of the Union in two classes

Appellate Jurisdiction of the Supreme Court.

of cases. In the first, their jurisdiction depends | tional court, the highest court of law of the state; on the character of the cause, whoever may be and in that court it was held that the ordinance the parties. This class comprehends all cases did not violate the constitution of the United in law and equity, arising under the constitution, States, and a writ of error was prosecuted on the laws of the United States, and treaties made, this decision to the supreme court. Held, that or which shall be made, under their authority. the question decided by the constitutional court, In the second class, the jurisdiction depends was the very question on which the revising entirely on the character of the parties. In this power of the supreme court is to be exercised. class are comprehended controversies between Ibid. 464. two or more states; between a state, and citizens of another state; and between a state, and foreign states, citizens, or subjects. If these be the parties, it is entirely unimportant what may be the subject of the controversy; be it what it may, these parties have a constitutional right to come into the courts of the Union. Ibid.

295. A writ of error to the supreme court may be prosecuted, where, by the judgment of the highest court of the state of South Carolina, a prohibition issued in a state court, to prevent the levying of a tax which was imposed by a law repugnant to the constitution of the United States, was refused by the state courts, on the ground that the law was not so repugnant to the constitution. Ibid.

proceeding in a court of justice, in which an individual pursues that remedy in a court of justice which the law affords him. Ibid.

290. A case in law or equity consists of the rights of one party, as well as of the other; and is said to arise under the constitution or a law 296. The term suit is certainly a very compreof the United States, whenever its correct deci-hensive one, and is understood to apply to any sion depends on the construction of either. Ibid. 291. Where a state obtains a judgment against an individual, and the court rendering such judgment overrules a defence set up under the con- 297. The words "final judgment," in the stitution or laws of the United States, the transfer twenty-fifth section of the judiciary act, must be of the record into the supreme court, for the sole understood in the section under consideration as purpose of inquiring whether the judgment vio-applying to all judgments and decrees which lates the constitution or laws of the United States, cannot be denominated a suit commenced or prosecuted against the state whose judgment is so far re-examined, within the eleventh amendment of the constitution of the United States. Ibid.

292. A decree of the highest court of equity of a state, affirming the decretal order of an inferior court of equity of the same state, refusing to dissolve an injunction granted on the filing of the bill, is not a final decree within the twentyfifth section of the judiciary act of September 21th, 1789, ch. 20, from which an appeal lies to the supreme court of the United States. Gibbons v. Ogden, 6 Wheat. 448; 5 Cond. Rep. 134.

293. The power of the supreme court to revise the judgment of state tribunals, depends on the twenty-fifth section of the judiciary act. That section enacts, "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 statute, or of 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 favour of their validity, "may be re-examined and reversed or affirmed in the supreme court of the United States." Weston et al. v. The City Council of Charleston, 2 Peters, 449.

294. The city council of Charleston, exercising an authority under the state of South Carolina, enacted an ordinance by which a tax was imposed on the six and seven per cent. stock of the United States; and in the court of common pleas of the Charleston district, an application was made for a prohibition to restrain them from levying the tax, on the ground that the ordinance violated the constitution of the United States. The prohibition was granted, and the proceedings in the case were removed to the constitu

determine the particular cause; and it is not required that such judgments shall finally decide upou the rights which are litigated, that the same shall be within the purview of the section. Ibid.

298. In the construction of the twenty-fifth section of the judiciary act, passed 24th September, 1789, the supreme court has never required that the treaty or act of congress under which the party claims, who brings the final judgment of a state court into review before the court, should have been spread upon the record. It has always deemed it essential to the exercise of jurisdiction, in such a case, that the record should show a complete title, under the treaty, or act of congress, and that the judgment of the court is in violation of that treaty, or act. Hickie v. Starke et al., 1 Peters, 94.

299. Objections to the jurisdiction of the supreme court have been frequently made, on the ground that there was nothing apparent on the record to raise the question, whether the court from which the case had been brought, had decided upon the constitutionality of a law, so that the case was within the provisions of the twenty-fifth section of the judiciary act of 1789. This has given occasion for a critical examination of the section, which has resulted in the adoption of certain principles of construction applicable to it. One of those principles is, that if the repugnancy of a statute of a state to the constitution of the United States, was drawn into question, or if that question was applicable to the case, the supreme court has jurisdiction of the cause; although the record should not, in terms, state a misconstruction of the constitution of the United States, or that the repugnancy of the statute of the state, to any part of that constitution, was drawn into question. Satterlee v. Matthewson, 2 Peters, 380.

300. The supreme court has frequently de

Appellate Jurisdiction of the Supreme Court.

court of the United States has jurisdiction on a writ of error, by which the decision of the court of the state of Mississippi is brought up for revision, under the twenty-fifth section of the judiciary act of 1789. Ross v. Barland et al., 1 Peters, 655.

cided, that to sustain this jurisdiction in appeals, | This is a case which draws in question the conand writs of error, it is not necessary to state instruction of an act of congress, and the supreme terms, upon the record, that the constitution or a law of the United States, was drawn in question. It is sufficient to bring the case within the twenty-fifth section of the judiciary act, if the record shows that the constitution, or a law of the United States, must have been misconstrued, or the decision could not have been made; or 306. A lot of ground situated in the city of that the constitutionality of a state law was New Orleans, which was occupied under an inquestioned, and the decision was in favour of complete title, for some time, by permission of the party claiming under such law. Wilson et the Spanish government, granted before the acal. v. Black Bird Creek Marsh Co., 2 Peters, 241.quisition of Louisiana by the United States, was 301. It has often been decided in the supreme confirmed to the claimants under the laws of the court, that it is not necessary that it shall appear United States; and a patent was issued for the in terms upon the record, that the question was same on the 17th of February, 1821. The city presented in the state court, whether the case of New Orleans, claiming this lot as being part was within the purview of the twenty-sixth sec- of a quay dedicated to the use of the city, in the tion of the judiciary act of 1789, to give juris- original plan of the town, and therefore not diction to the court, in a case removed from a grantable by the king of Spain, enlarged the lestate court; it is sufficient if, from the facts vee, in front of New Orleans, so as to include it. stated, such a question must have arisen, and The patentees from the United States brought a the judgment of the state court would not have suit in the district court of the state of Louisiana been what it is, if there had not been a miscon- for the lot, which pronounced judgment in their struction of some act of congress, &c., &c., or a favour, and that judgment was affirmed by the decision against the validity of the right, privi- supreme court of the state. The judgment was lege, or exemption set up under it. Harris v. removed to the supreme court under the 25th Dennie, 3 Peters, 292. section of the judiciary act. A motion was made to dismiss the writ of error for want of jurisdiction. By the court:-The merits of this controversy cannot be revised in this tribunal. The only inquiry here is, whether the record shows that the constitution, or a treaty, or a law of the United States, has been violated by the decision of that court. City of New Orleans v. De Armas et al., 9 Peters, 224.

302. The supreme court of the United States has no power under the twenty-fifth section of the judiciary act of 1789, to revise the decree of a state court, where no question was raised or decided in the state court upon the validity or construction of an act of congress, nor upon the authority exercised under it, but on a state law only. M'Bride v. Hoey, 11 Peters, 167.

303. The judgment of the highest court of law of a state, deciding in favour of the validity of a statute of a state, drawn in question on the ground of its being repugnant to the constitution of the United States, is not a final judgment within the twenty-fifth section of the judiciary act of 1789; if the suit has been remanded to the inferior state court, where it originated for further proceedings, not inconsistent with the judgment of the highest court. Winn's Heirs v. Jackson et al., 12 Wheat. 135; 6 Cond. Rep. 479.

304. The measure authorized by the act of assembly of the state of Delaware, passed in February, 1822, viz: the construction of a dam across Black Bird Creek, stops a navigable stream, and must be supposed to abridge the rights of those who have been accustomed to use it. But this abridgment, unless it come in conflict with the constitution or a law of the United States, is an affair between the government of Delaware and its citizens, of which the supreme court can take no cognizance. Wilson et al. v. The Black Bird Creek Company, 2 Peters, 250.

305. Both the plaintiff and the defendant claimed title under the provisions of the act of congress, passed March 3, 1803, entitled "an act regulating the grants of lands, and providing for the disposal of the lands of the United States south of Tennessee river," and the decision of the supreme court of the state of Mississippi, vas upon the construction of the act given by the commissioners acting under its authority.

307. The twenty-fifth section of the judiciary act is limited by the constitution, and must be construed so as to be confined within those limits. But to construe this section so that a case can arise under the constitution or a treaty, only when the right is created by the constitution or treaty, would defeat the obvious purpose of the constitution, as well as the act of congress. The language of both instruments extends the juris diction of the supreme court to rights protected by the constitution, treaties or laws of the United States, from whatever source these rights may spring. Ibid.

308. To sustain the jurisdiction of the court in the case, it must be shown that the title set up by the city of New Orleans is protected by the treaty ceding Louisiana to the United States, or by some act of congress applicable to that title. Ibid.

309. The third article of the treaty of Louisi ana stipulates for the admission of Louisiana into the Union; and it obviously contemplates two objects: one that stated, and the other that, till that admission, the inhabitants of the ceded territory shall be protected in the enjoyment of their liberty, property and religion. Had any of these rights been violated while the stipulation continued in force, the individual supposing himself to be injured, might have brought his case into the supreme court, under the 25th section of the judiciary act. But the stipulation ceased to operate when Louisiana became a member of the

Appellate Jurisdiction of the Supreme Court.

Appellate Jurisdiction of the Supreme Court.

ral. They refer to no specific property or class of rights: it is impossible, therefore, judicially to limit their application. If it were admitted that Aspasia is the property of the plaintiff in error, and the supreme court were to take jurisdiction of the cause under the provisions of the ordinance, must they not on the same ground interpose their jurisdiction in all other controversies respecting property which was acquired in the north-western territory? Ibid.

been applicable to the case, unless it is farther relate to "property" and to "rights," are geneshown on the record that it did arise, and was applicable by the state court to the case. Ibid. 318. Where, in such a case, the validity of a statute of any state is drawn in question upon the ground of its being repugnant to the constitution of the United States, and the decision has been in favour of its validity, it is necessary to the exercise of the appellate jurisdiction of the supreme court that it should distinctly appear that the title or right of the party depended upon the statute. Williams v. Norris, 12 Wheat. 117; 6 Cond. Rep. 462.

319. New York. The plaintiff in error claimed to recover the land in controversy, having derived his title under a patent granted by the state of New York to John Cornelius. He insisted that the patent created a contract between the state and the patentee, his heirs and assigns; that they should enjoy the land free from any legislative regulations to be made in violation of the constitution of the state; and that an act passed by the legislature of New York, subsequent to the patent, did violate that contract. Under that act commissioners were appointed to investigate the contending titles to all the lands held under such patents as that granted to John Cornelius; and by their proceedings, without the aid of a jury, the title of the defendants in error was es tablished against and defeating the title under a deed made by John Cornelius, the patentee, and which deed was executed under the patent. By the court:-This is not a case within the clause of the constitution of the United States, which prohibits a state from passing laws which shall impair the obligation of contracts. The only contract made by the state is a grant to John Cornelius, his heirs and assigns, of the land. The patent contains no covenant to do or not to do any further act in relation to the land; and the court are not inclined to create a contract by implication. The act of the legislature of New York does not attempt to take the land from the patentee: the grant remains in full effect; and the proceedings of the commissioners under the law operated upon titles derived under and not adversely to the patent. Jackson v. Lamphire, 3 Peters, 280.

322. Whatever right may be claimed to have originated under the ordinance of 1787, it would seem that a right to the involuntary service of an individual could not have had its source in that instrument. It declares that "there shall not be slavery or involuntary servitude in the territory." If this did not destroy a vested right in slaves, it at least did not create or strengthen that right. Ibid.

323. If the decision of the supreme court of Missouri had been against Aspasia, it might have been contended that the revising power of this court, under the twenty-fifth section of the judiciary act, could be exercised. In such a case the decision would have been against the express provision of the ordinance in favour of liberty; and on that ground, if that instrument could be considered under the circumstances as an act of congress within the twenty-fifth section, the jurisdiction of the supreme court would be unquestionable. But the decision was not against, but in favour of the express provisions of the ordinance. Ibid.

324. The general provisions of the ordinance of 1787, as to the rights of property, cannot give jurisdiction to the court. They do not come within the twenty-fifth section of the judiciary act. Ibid.

325. The case of Fisher's Lessee v. Cockerell, was a writ of error to the court of appeals of the state of Kentucky, to review a decision of that court, affirming a judgment of the Union county court of that state, as to the validity of a law of that state, called the occupying claimant law. The validity of the law rested upon the question of its opposition to the compact between Virginia and Kentucky, relative to lands originally in 320. The mother of Aspasia, a coloured wo-Virginia, and the compact of the state of Kenman, was born a slave at Kaskaskia, in Illinois, tucky. The proceedings of the court of Union previous to 1787, and before that country was county did not show that the compact was conquered for Virginia. Aspasia was born in brought before the court, and the allegation that Illinois subsequent to the passage of the ordi- the plaintiff relied on the compact between those nance for the government of that territory. As-states, was first made in the court of appeals. pasia was afterwards sent as a slave to the state of Missouri. In Missouri, Aspasia claimed to be free, under the ordinance "for the government of the territory of the United States north-west of the river Ohio," passed 13th July, 1787. The supreme court of Missouri decided that Aspasia was free; and Menard, who claimed her as his 326. In delivering the opinion of the supreme slave, brought a writ of error under the twenty- court in the case of Fisher v. Cockerell, Mr. fifth section of the act of 1789, claiming to re- Chief Justice Marshall said: "In the argument, verse the judgment of that court. Held, that the the court has been admonished of the jealousy case is not within the provisions of the twenty- with which the states of the Union view the fifth section of the act of 1789. Menard v. As-revising power intrusted by the constitution and pasia, 5 Peters, 505. laws of the United States to this tribunal.

In the court of Union county, the question of the validity of the compact was not presented. Held, that this was not a case for a writ of error to the supreme court, under the twenty-fifth section of the judiciary act of 1789. Lessee of Fisher v. Cockerell, 5 Peters, 248.

To

321. The provisions of the compact which observations of this character, the answer uni