CHAPTER II.

THE APPELLATE JURISDICTION OF THE SUPREME COURT OF THE UNITED STATES, WITH REFERENCE TO THE CIRCUIT COURTS.

§ 167. THE Constitution has conferred upon the Supreme Court appellate jurisdiction in all the cases belonging to the judicial power of the United States, other than those of which it has original jurisdiction, with such exceptions and under such regulations as Congress may make. Our inquiry will now be, therefore, what is included in the appellate jurisdiction of the Supreme Court, and in what mode is it to be exercised.

§ 168. The restriction imposed by the Constitution upon the appellate jurisdiction of the Supreme Court, arises from the authority given to Congress to regulate it, and to except cases from its operation. This authority was exercised at the time of the establishment of the judicial system, and the provisions then and since made have received repeated construction, in a long series of decisions. The appellate jurisdiction thus regulated divides itself into two great branches, one embracing writs of error and appeals from the Circuit Courts of the United States, and the other including writs of error to the courts of the states.

§ 169. The Judiciary Act provides that final judgments and decrees in civil actions (and suits in equity) in a Circuit Court, brought there by original process, or removed there from the courts of the several states, or removed there by appeal from a District Court, where the matter in dispute exceeds

the sum or value of two thousand dollars, may be re-examined and reversed or affirmed in the Supreme Court, upon a writ of error, brought within five years after rendering or passing the judgment or decree complained of; but errors in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, and errors in fact, are not reexaminable. A subsequent statute has provided another mode, by which questions may be carried to the Supreme Court, by a division of opinion between the judges of the Circuit Court.2

1 Act of 24th September, 1789, 22. The whole section is as follows: "And be it further enacted, That final decrees and judgments in civil actions in a district court where the matter in dispute exceeds the sum or value of fifty dollars exclusive of costs, may be re-examined and reversed or affirmed in a circuit court, holden in the same district, upon a writ of error, whereto shall be annexed and returned therewith, at the day and place therein mentioned, an authenticated transcript of the record, and assignment of errors, and prayer for reversal, with a citation to the adverse party, signed by the judge of such district court, or a justice of the Supreme Court, the adverse party having at least twenty days' notice. And upon a like process may final judgments and decrees in civil actions, and suits in equity in a circuit court, brought there by original process, or removed there from courts of the several states, or removed there by appeal from a district court, where the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, be re-examined, and reversed, or affirmed in the Supreme Court, the citation being in such case signed by a judge of such circuit court, or justice of the Supreme Court, and the adverse party having at least thirty days' notice. But there shall be no reversal in either court on such writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court, or such plea to a petition or bill in equity, as is in the nature of a demurrer, or for any error in fact. And writs of error shall not be brought but within five years after rendering or passing the judgment or decree complained of, or in case the person entitled to such writ of error be an infant, feme covert, non compos mentis, or imprisoned, then within five years as aforesaid, exclusive of the time of such disability. And every justice, or judge, signing a citation on any writ of error as aforesaid, shall take good and sufficient security that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs, if he fail to make his plea good."

2 Act of 29th April, 1802, % 6.

§ 170. A still more recent act provides for appeals to the Supreme Court from all final judgments or decrees rendered in any circuit court, or in any district court acting as a circuit court, in any cases of equity, of admiralty, and of maritime jurisdiction, and of prize or no prize, where the matter in dispute, exclusive of costs, exceeds the sum or value of two thousand dollars. This statute repeals so much of the 22d section of the Judiciary Act as provides for carrying up cases in equity or admiralty, by writs of error.

§ 171. First, then, with regard to the exercise of the appellate jurisdiction by writ of error to a circuit court. The first requisite is, that the matter in dispute should exceed the sum or value of two thousand dollars, exclusive of costs.2

1 Act of March 3d, 1803, 2. That, from all final judgments or decrees in any of the district courts of the United States, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of fifty dollars, shall be allowed to the circuit court next to be holden in the district where such final judgment or judgments, decree or decrees, may be rendered; and the circuit court or courts are hereby authorized and required to receive, hear, and determine, such appeal; and that from all final judgments or decrees rendered, or to be rendered, in any circuit court or in any district court acting as a circuit court, in any case of equity, of admiralty and maritime jurisdiction, and of prize or no prize, an appeal, where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars, shall be allowed to the Supreme Court of the United States; and that, upon such appeal, a transcript of the libel, bill, answer, depositions, and all other proceedings of what kind soever in the cause, shall be transmitted to the said Supreme Court; and that no new evidence shall be received in the said court, on the hearing of such appeal, except in admiralty and prize causes, and that such appeals shall be subject to the same rules, regulations, and restrictions, as are prescribed in law in case of writs of error; and that the said Supreme Court shall be, and hereby is, authorized and required to receive, hear, and determine such appeals. And that so much of the nineteenth and twenty-second sections of the Act of Congress, entitled "An Act to establish the judicial courts of the United States," passed on the twenty-fourth day of September, seventeen hundred and eighty-nine, as comes within the purview of this act, shall be, and the same is hereby, repealed.

2 As to the recent exception to this in revenue causes, see infra.

The thing in controversy, under this statute, must be capable of pecuniary estimation. It has, therefore, been held, that where the subject of the controversy is the right to hold or exercise an office of trust, as the guardianship of a minor, which has no value, except so far as it affords a compensation for labor and services to be performed, an appeal does not lie under the statute.' The principle of this case is equally applicable to the statute provision for writs of error. So, too, a writ of error will not lie where the controversy is between parties claiming adversely the custody of an infant child, as that is a thing incapable of being reduced to any pecuniary standard of value. The matter in dispute must be money, or some right, the value of which, in money, can be calculated and ascertained. It must also be a civil case,

1 Ritchie v. Mauro, 2 Peters, 243.

2 Barry v. Mercein, 5 How. 103. Mr. Ch. Justice Taney, delivering the opinion of the court in this case, said: "By the Constitution of the United States, the Supreme Court possesses no appellate power in any case, unless conferred upon it by Act of Congress; nor can it when conferred be exercised in any other form, or by any other mode of proceeding than that which the law prescribes.

"The Act of 1789, ch. 20, 22, provides that final judgments and decrees in civil actions and suits in equity in a circuit court, when the matter in dispute exceeds the sum or value of two thousand dollars, exclusive of costs, may be re-examined and reversed or affirmed in the Supreme Court. And it is by this law only that we are authorized to reexamine any judgment in a circuit court by writ of error.

"Before we speak more particularly of the construction of this section, it may be proper to notice the difference between the provisions contained in it and those of the twenty-fifth section, in the same Act of Congress, which gives the appellate power over the judgments of the state courts. In the latter case, the right to re-examine is not made to depend on the money value of the thing in controversy, but upon the character of the right in dispute, and the judgment which the state court has pronounced upon it; and it is altogether immaterial whether the right in controversy can or cannot be measured by a money standard.

"But in the twenty-second section, which is the one now under consideration, the provision is otherwise; and in order to give this court jurisdiction to re-examine the judgment of a circuit court of the United States, the judgment or decree must not only be a final one, in a civil action or suit in equity, but the matter in dispute must exceed the sum

where the subject in contest has a value beyond the sum Therefore, in criminal cases, where

mentioned in the act. the question is the guilt or innocence of the accused, a writ of error does not lie.' But it will lie to a peremptory man

or value of two thousand dollars, exclusive of costs. And in order, therefore, to give us appellate power under this section, the matter in dispute must be money, or some right, the value of which, in money, can be calculated and ascertained.

"In the case before us, the controversy is between the father and mother of an infant daughter. They are living separate from each other, and each claiming the right to the custody, care, and society of their child. This is the matter in dispute, and it is evidently utterly incapable of being reduced to any pecuniary standard of value, as it rises superior to money considerations.

"The question for this court to decide is, whether a controversy of this character can, by a fair and reasonable construction, be regarded as within the provisions of the twenty-second section of the Act of 1789. Is it one of those cases in which we are authorized to re-examine the decision of a circuit court of the United States, and affirm or reverse its judgment? We think not. The words of the Act of Congress are plain and unambiguous. They give the right of revision in those cases only where the rights of property are concerned, and where the matter in dispute has a known and certain value, which can be proved and calculated in the ordinary mode of a business transaction. There are no words in the law which, by any just interpretation, can be held to extend the appellate jurisdiction beyond those limits, and authorize us to take cognizance of cases to which no test of money value can be applied. Nor, indeed, is this limitation upon the appellate power of this court confined to cases like the one before us. It is the same in judgments in criminal cases, although the liberty or life of the party may depend on the decision of the circuit court. And since this court can exercise no appellate power unless it is conferred by Act of Congress, the writ of error in this case must be dismissed."

1 United States v. Moore, 3 Cranch, 159; Ex parte Kearney, 7 Wheaton, 38, 42. The Judiciary Act of 1789 made no provision for the revision by the Supreme Court of the judgments of the circuit or district courts in criminal cases; and the Act of 1802 only embraced cases in which the opinions of the judges were opposed in criminal cases. There is, therefore, no general law giving appellate jurisdiction to the Supreme Court in such cases. But the Act of February 22d, 1847, ch. 17, providing that certain cases might be brought up from the territorial courts of Florida to the Supreme Court, included all cases, whether of civil or criminal jurisdiction. Under this act it was held, that the Supreme