7. Its Appellate Jurisdiction to Matter appearing on the Record. The Judiciary Act of 1789 required, on error or appeal from a

state court, that the error assigned appear on the face of the record, and immediately respect some questions 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. (c) But the court has been so precise upon this point, that in Miller v. Nicholls, (d) notwithstanding it was believed that an act of

(c) Craig v. State of Missouri, 4 Peters, 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; Ocean Ins. Co. v. Polleys, 13 Peters, 157; Coons v. Gallager, 15 Peters, 18, s. p. See also Conklin's Treatise (2d ed.), 26.

It may be added that writs of error to state courts are not allowed as of right. The practice is to submit the record to a judge of the Supreme Court, who examines whether the case upon the face of the record will justify the allowance of the writ. Twitchell v. Commonwealth, 7 Wall. 321; Gleason v. Florida, 9 Wall. 779.

See, as to what is a cause or suit, ante, 297, n. (d). A petition for a writ of habeas corpus, duly presented, is one. Ex parte Milligan, 4 Wall. 2, 112. So is a

proceeding instituted in a state court by submitting an agreed statement of facts without any compulsory process. Aldrich v. Etna Co., 8 Wall. 491. But when a district judge was authorized by act of Congress to adjudicate on certain claims, which were to be paid if the Secretary of the Treasury should, on a report of the evidence, deem it advisable, it was held that the judge acted as a commissioner, and no appeal lay. United States v. Ferreira, 13 How. 40; Ex parte Zellner, 9 Wall. 244, 247; United States v. Circuit Judges, 3 Wall. 673. See the similar decision as to the Court of Claims as formerly regulated, ante, 297, n. 1.

As to what is a final judgment, see 316, n. 1.

Congress, giving the United States priority in cases of insol

vency, had been disregarded, yet, as the fact of insolvency * 327 * 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. (a)

8. Its Appellate Jurisdiction exists, though a State be a Party. The appellate jurisdiction may exist, though a state 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; (b) 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 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 * 328 to the courts of the Union in two classes of cases. * 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

(a) Governor of Georgia v. Madrazo, 1 Peters, 110; Hickie v. Starke, ib. 98; Fisher v. Cockerell, 5 id. 248.

(b) 6 Wheaton, 264.

unimportant what might be the subject of controversy. The gen-
eral 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 Con-
stitution and laws of the Union was cognizable in the courts of
the Union, whoever might be the parties to that case. The sover-
eignty 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 polit-
ical 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 conse-
quences would follow, from the absence of appellate jurisdiction
over a state court, where a state was a party, for it would pros-
trate 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 cor-
rect 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. 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 pre-

* 329

serving 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 judi*330 cial power * 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 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