there may be a controversy relative to soil or jurisdic- sion as to the right of soil between individuals though the state may have parted with the right of soil. risdiction de gress. (4.) The appellate jurisdiction of the Supreme Court Appellate ju exists only in those cases in which it is affirmatively pends on con 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 by 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 a New-York v. Connecticut, 4 Dallas, 3. In the case of The State of Rhode Island v. The State of Massachusetts, 12 Peters, 657, it was decided, after a very elaborate discussion, that the Supreme Court had jurisdiction to ascertain and establish boundaries between two states, and to restore and confirm rights of sovereignty and jurisdiction. b 3 Dallas, 321. *325 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 Clark v. Bazadone, that a writ of error did not lie to that court from a court of the United States' territory northwest 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 a 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, *where congress had not by law interfered and controlled 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,b 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 • 1 Cranch, 212. b3 Cranch, 159. • 6 Cranch, 307. 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.b Judicial power con arisingunder tion, treaties and laws. (5.) The constitution says, that the judicial power shall extend to all cases arising under the constitution, fined to cases laws and treaties of the United States; and it has been the constitu made a question, as to what was a case arising under a treaty. In Owings v. Norwood, there *326 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, 7 Wheaton, 38. Ex parte Watkins, 3 Peters' R. 193. 7 Peters' U. S. Rep. 568. S. P. United States v. Goodwin, 7 Cranch, 108. United States v. Gordon, Ibid. 287. But see supra, p. 299, now altered by act of congress. Mr. Justice Story, in the case Ex parte Christy, 3 Howard, 292. 317, stated that no appeal was given or lies from the judgments either of the District or Circuit Courts in criminal cases. So it was adjudged that the Supreme Court has no power of appeal from the decrees of the District Court sitting in bankruptcy, nor no power to issue a prohibition, except when the District Court is proceeding as a court of admiralty and maritime jurisdiction. See also infra, p. 383. • 5 Cranch, 344. Appellate jurisdiction matter on 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." (6.) The judiciary act of 1789 required, on error or confined to appeal from a state court, that the error assigned appear the record. on the 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 to 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.b A case, in the sense of the constitution, says Mr. Justice Story, (Commentaries on the Constitution, vol. iii. p. 507,) is a suit in law or equity, and arises when some subject, touching the constitution, laws or treaties of the United States, is submitted to the courts by a party, who asserts his rights in the form prescribed by law. See also 9 Wheaton, 819, and 9 Peters, 224. b Craig v. State of Missouri, 4 Peters' U. S. Rep. 410. In Crowell v. Randell, 10 Peters, 368, the Supreme Court reviewed all the cases on the appellate jurisdiction of the court from the state courts; and it was decided, that to give the court appellate jurisdiction, two things must have occurred and be apparent in the record, or by necessary inference from it; (1.) that some one of the questions stated in the 25th section of the judiciary act of 1789, did arise in the court below, and (2.) that a decision was actually made thereon by the same court in the manner required by the section. If both of these do not appear on the record, the appellate jurisdiction fails. 12 Peters, 507, S. P. Ocean Ins. Co. v. Polleys, 13 Peters, 157, S. P. Coons v. Gallager, 15 Peters' U. S. Rep. 18, S. P. See, also, Conkling's Treatise, 2d edit. 26. But the court has been so precise upon this point, that It exists, though a party. (7.) The appellate jurisdiction may exist, though a state be a party, and it extends to a final judgment in a state be 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 sta a 4 Wheaton, 311. b Governor of Georgia v. Madrazzo, 1 Peters' U. S. Rep. 110. Hickie v. Starke, Ibid. 98. Fisher v. Cockerell, 5 Ibid. 243. • 6 Wheaton, 264. |