section of the judiciary act of 1789, and that the state court must have virtually passed upon it. (a) But the court has been so precise upon this point, that in Miller v. Nicholls, (b) notwithstanding it was believed that an act of congress, giving the

United States priority in cases of insolvency, had been *327 disregarded, yet, as the fact of insolvency *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. (c)

though a state be a

It exists, (7.) The appellate jurisdiction may exist, though a state be a party, and it extends to a final judgment in party. 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; (d) 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

(a) Craig v. State of Missouri, 4 Peters's 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's U. S. Rep. 18, S. P. See, also, Conkling's Treatise, (2d edit.) 26. (b) 4 Wheaton, 311.

(c) Governor of Georgia v. Madrazo, 1 Peters's U. S. Rep. 110. Hickie v. Starke, Ibid. 98. Fisher v. Cockerell, 5 Ibid. 248.

(d) 6 Wheaton, 264.

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 favor 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. *In the first, their jurisdiction depended on the character *328 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. À 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 peacefully performed, was the judicial department. It was authorized to 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 may 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 execu* 329 tion of its own laws. If *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, as 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 con

stitution, and the judicial power must be competent *330 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 which 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 questions 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. (a)

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 v. Norris, and Montgomery v. Hernandez, 12 Wheaton, 117, 129, under the 25th section of the judiciary act of 1789, c. 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 favor 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.

LECTURE XVI.

OF THE JURISDICTION OF THE FEDERAL COURTS IN RESPECT TO THE COMMON LAW, AND IN RESPECT TO PARTIES.

(1.) IT has been a subject of much discussion whether the courts of the United States have a common-law jurisdiction, and, if any, to what extent.

no common

tion in crim

The U. S. In the case of the United States v. Worrall, (a) in courts have the Circuit Court at Philadelphia, the defendant was law jurisdic- indicted and convicted of an attempt to bribe the inal cases. commissioner of the revenue; and it was contended, on the motion in arrest of judgment, that the court had no jurisdiction of the case, because all the judicial authority of the federal courts was derived, either from the constitution, or the acts of congress made in pursuance of it, and an attempt to bribe the commissioner of the revenue was not a violation of any constitutional or legislative prohibition. Whenever congress shall think any provision by law necessary to carry into effect the constitutional powers of the government, it was said, they may establish it, and then a violation of its sanctions will come within the jurisdiction of the circuit courts, which have exclusive cognizance of all crimes and offences cognizable under the authority of the United States. Congress had provided by law for the punishment of various crimes, and even for the punishment of bribery itself, in the case of a judge, an officer

of the customs, or an officer of the excise; but in the 332 case of the commissioner of the revenue, the act of congress did not create or declare the offence. The question then fairly and directly presented itself, what was there to render it an offence arising under the constitution or laws of

(a) 2 Dallas, 384.