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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 Dictrict Court in Virginia, wbich the Court of Appeals in Virginia had reversed, was affirmed.

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, VOL. I.

41

Writ of man

dumus.

(2.) 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, 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.

The judiciary act, sec. 13, authorized the Supreme Court tissue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. There was no 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 the court to issue a mandamus, it must be shown to be

a 1 Cranch, 137.

an exercise, or 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

(3.) The constitution gives to the Supreme Court ori- Whenastate ginal jurisdiction in those cases in which a state shall be a party; and in Fowler v. Lindsey, the question arose, when a state was to be considered a party. The parties in that suit claimed title to lands under grants from different states. The plaintiff brought his ejectment 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 jurisdiction, and that jurisdiction may re

is a party.

a Ex parte Crane and another, 5 Peters' U.S. Rep. 190. b 3 Dallas, 411.

risdiction de pends on Congress.

main unimpaired, though the state may have parted 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 NewYork 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 de

cision." Appollato ju- (4.) 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," the Supreme Court considered that its whole appellate jurisdiction depended upon the regulations of Congress, as that jurisdiction was given hy 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, that a writ of error did not lie to that court from a court of the United States' territory north-west 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 the 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,

a New-York v. Connecticut, 4 Dallas, 3. b 3 Dallas, 321. c 1 Cranch, 212.

where Congress had not by law interfered and controled it by exceptions and regulations. The court, however, adhered to the doctrine which they had before laid down, and proceeded upon the principle, that though the appellate powers of the court were given by the constitution, they were limited entirely by the judiciary statutes, which are to be understood as making exceptions to the appellate jurisdiction of the court, and to imply a negative on the exercise of such a power, in every case but those in which it is affirmatively given and described by statute. This was the principle also explicitly declared in the case of The United States v. More, and in the case of Durousseau v. The United States. 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, 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

(5.) The constitution says, that the judicial power shall Judicialpowextend to all cases arising under the constitution, laws and to cases aritreaties of the United States ; and it has been made a question, as to what was a case arising under a treaty. In and laws.

sing under the constitution, treaties

a 3 Cranch, 159. 6 6 Cranch, 307. c 7 Wheaton, 38.

d United States v. Goodwin, 7 Cranch: 108. United States v. Gordon, lbid. 287.

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