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Owings v. Norwood, 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. Appellate ju- (6.) The judiciary act of 1789 required, on error or appeal confined to from a state court, that the error assigned appear on the the record. face of the record, and immediately respect some question

affecting the validity or construction of the constitution, treaties, statutes, or authorities of the Union. Under this act, it is not necessary that the 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 the 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. But the court has been so precise upon this point, that in Miller v. Nicholls, 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 insol

a 5 Cranch, 344. b Craig v. State of Missouri, 4 Peters' U. S. Rep. 410. c 4 Wheaton, 311.

though a stato be a party.

vency 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.

(7.) The appellate jurisdiction may exist, though a state toxists; 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 ;' 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 favour 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,

a Governor of Georgia v. Madrazo, 1 Peters' U. S. Rep. 110. Hickie v. Starke, Ibid. 98. Fisher v. Cockerell, 5 lbid. 248.

b 6 Wheaton, 264.

In 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 peaceably performed, was the judicial department. It was authorized ta 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 inay 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. 18

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 VOL. I.


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 wbich 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 ques tions 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.

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.

a In Williams y. Norris, and Montgomery v. Hernandez, 12 Wheaton, 117. 129. under the 25th section of the judiciary act of 1789, ch. 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 favour 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.

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