CHAPTER II.

THE SUPREME COURT (continued).

You will remember, gentlemen, that in the last lecture I endeavored to show that the Supreme Court of the United States was constituted by a provision in the Constitution of the United States, not by Congress; that its jurisdiction was divided into two distinct parts, its original and its appellate jurisdiction; and I further explained, or endeavored to explain, how this original jurisdiction is exercised, as well as what is its extent. In this lecture I desire to speak of the other branch of the jurisdiction of the Supreme Court, its appellate jurisdiction. You will remember, I explained the distinction between these two classes of cases, the one depending upon the original, and the other upon the appellate jurisdiction. The Supreme Court's original jurisdiction allows you to begin a suit there; it has appellate jurisdiction, when you must institute a suit in some other court, and carry it to the Supreme Court by some process provided by law.

The subject of this lecture is the appellate jurisdiction of the Supreme Court; and this is divisible into two parts, distinct the one from the other,

because the jurisdiction in one class of cases is exercised over courts of the several States; in the other class of cases it is exercised over courts of the United States.

It may seem somewhat surprising that, although the Constitution of the United States has not in terms granted to the Supreme Court appellate power, in reference to courts of the several States, nevertheless such a power exists; and I may mention to you, in passing, although this is not a

lecture upon the Constitution of the United States, nevertheless the matter is incidentally connected with the subject upon which I am speaking, — I may mention, I say, in passing, that at an early day, and especially in the State of Virginia, all appellate power of the Supreme Court of the United States over courts of the several States was not only seriously questioned, but absolutely denied; and it required a repetition of instances, in which the Supreme Court of the United States vindicated its authority over courts of the several States, within certain well-defined limits, to convince the country that this power existed. It may not be inappropriate for me, in a few words, to call your attention to the source of this power. It is only an implied power, but its implication is necessary, and the reasons for it are satisfactory. Its source will be found in the second clause of the sixth Article of the Constitution: "This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."

The question at once arose, how this Constitution, these treaties, and these laws could be the supreme law throughout the United States, unless the judicial power of the United States could take cognizance of all questions arising under them, and give final effect to them. This entire subject in all its bearings you will find discussed, with great ability, in the cases of Martin v. Hunter, 1 Wheaton, 304, and Cohens v. The State of Virginia, 6 Wheaton, 264, in which the Supreme Court, with decisive effect, I say decisive effect, because the country has always since that time acquiesced, vindicated its jurisdiction over the courts of the several States in a limited class of cases.

That jurisdiction was derived from an act of Congress, as indeed all appellate jurisdiction must be under the Constitution, because it is provided in the Constitution that the Supreme Court shall have certain original jurisdiction (as I explained in the last lecture), and "in all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the Congress may make." "In all the other cases, that is, in all other cases that have been previously described, not in all cases, but in all other cases previously described, — they shall have appellate jurisdiction, "with such exceptions, and under such regulations, as the Congress may make."

Now, immediately after the organization of the government, there was passed, on the 24th day of September, 1789, what has been always since

known as the "Judiciary Act," and perhaps the most important section of that act, certainly one that has had very great influence on the country through the judiciary, and which was absolutely essential to carry on the government of the United States as it was established by the Constitution, was the twentyfifth section. I will read that section, because

every part of it requires consideration:

"That a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be re-examined, and reversed or affirmed, in the Supreme Court of the United States upon a writ of

1 The twenty-fifth section of the Judiciary Act of 1789 is now embodied in § 709 of the Revised Statutes, with some slight changes of phraseology, and some additional clauses. The substance, however, of this organic law remains the same. The modifications

There you will perceive that, under the provision of the Constitution that Congress may regulate the appellate power of the Supreme Court, authority is given to the Supreme Court to send a writ of error to the highest court of the State to which one of the questions here described could be carried by a writ of error, and such question is to be brought up to the Supreme Court of the United States, to be there examined, and reversed or affirmed.

It will be necessary, in the progress of our examination of this important section, to notice the class of questions which may be thus transferred to the Supreme Court of the United States.

were first introduced by an act passed February 5, 1867. As the law now stands, under the provisions of the last-named act, incorporated into the Revised Statutes, the Supreme Court of the United States may review the final judgment or decree of the highest court of a State in which a decision could be had, in three classes of

cases:

1st. Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity.

2d. Where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity.

3d. Where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed by either party under such Constitution, treaty, statute, commission, or authority.

Any enactment, from whatever source originating, to which a State gives the force of law, is a "statute" of the State, within the meaning of the law which regulates the appellate jurisdiction of the Supreme Court over the judgments and decrees of the State courts. Williams v. Bruffy, 96 U.S. 176; Ford v. Surget, 97 U. S. 594.