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part of the governments and the people of the several states." Appellatoju (1.) The Supreme Court has appellate jurisdiction, in

certain cases, over final decisions in state courts.

We have seen 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 drawu 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 reexamined, 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 so final as to terminate all further or renewed litigation, in a new suit, on the same right. Under this appellate authority, it was declared, in the case of Clerke v. Harwood, that if the highest court in a 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,d 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

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. i Hallam on the Middle Ages, 371, 2.

6 Weston v. City Counsel of Charleston, 2 Peter's U.S. Rep. 494. 63 Dallas, 313, d 7 Cranch, 608.

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 resusal, 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 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 interests, should require.

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

a Martin v. Hunter, 1 Wheaton, 304.

preme 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 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. 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, 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 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 conrts would incidentally take cognizance of 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 pre serve 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.

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