United States, or for the collection of duties due on CHAP. 4. any merchandise imported therein, may be examined, and reversed or affirmed in the supreme court of the United States, upon writ of error, as in other cases, without regard to the amount in controversy in such action, at the instance of either party;" and the phrase "revenue laws" in this enactment has been held to embrace an act of congress prescribing the rates of postage for the conveyance of letters by mail, and providing for the punishment of frauds on the revenue of the post office department; and a writ of error to the supreme court was accordingly adjudged to lie to reverse the judgment of a circuit court in an action of debt for a penalty of less than two thousand dollars accruing under the act of March 3, 1845.2 The United States v. Bromley, 12 Howard, 88. cases. For similar reasons congress has seen fit to enact Nor in patent or "that from all judgments and decrees of any circuit copyright court rendered in any action, suit, controversy or case, at law or in equity, arising under any law of the United States granting or confirming to authors the exclusive right to their respective writings, or to inventors their exclusive right to their inventions or discoveries, a writ of error or appeal, as the case may require, shall lie, at the instance of either party, to the supreme court of the United States, in the same manner and under the same circumstances as is now provided by law in other judgments and decrees of such circuit courts, without regard to the sum or value in controversy in the action." 193 Upon the provision of the judicial act above referred to, giving a writ of error to the supreme court from 1 Act of May 31, 1844, ch. 31: 5 Stat. at Large, 658. Ch. 42: id., 782. 'Act of Feb. 18, 1861, ch. 37: 12 Stat. at Large, 130. This act enlarges and supersedes the prior act of July 4, 1856, conferring the like privilege, somewhat qualified, in patent cases. PART 1. the final decisions of the circuit courts on "appeal” from the district courts, the nice question arose at an early period, whether the term appeal was there used in its general sense, as descriptive of appellate jurisdiction without regard to the particular mode, by which a cause is transmitted to that jurisdiction, or in its ordinary technical sense, expressive of the civil law mode of removal, as contradistinguished from the common law process of writ of error. The latter was held to be its true sense. The United States v. Goodwin, 7 Cranch, 108; The United States v. Gordon et al., id., 387; The United States v. Ten Broeck, 2 Wheat., 248; The United States v. Barker, id., 395. Extends to cases brought to circuit court by writ of error or appeal from dis trict court. From this construction it followed, therefore, that no judgment of a circuit court, in a case brought before it by writ of error, from a district court, could be re-examined in the supreme court. This arbitrary distinction continued until it was abolished by the act of July 4, 1840, by which it is enacted, "that writs of error shall lie to the supreme court from all judgments of a circuit court, in cases brought there by writs of error from the district court, in like manner and under the same regulations, limitations and restrictions, as are now provided by law for writs of error to judgments rendered upon suits originally brought in the circuit court." 'Ch. 44, § 3; 5 Stat. at Large, p. 393. Particular district courts have, from time to time, been invested with the original jurisdiction of a circuit court, and from their judgments and decrees a writ of error or appeal has been declared to lie to the supreme court, as from those of a circuit court; and in each of the organized territories of the United States, there are district courts and a supreme court, and from the final decisions of the latter, writs of error and appeals are given to the supreme court of the United States. These branches of jurisdiction will receive a separate notice in the sequel. By an act passed March 3, 1863 (12 Stat. at Large, p. 755), to aid the government in its efforts to suppress the formidable rebellion still raging CHAP. 4. error to courts. By the 25th section of this act, it is enacted that a final judgment or decree in any suit, in the highest Writ of court of law or equity, in which a decision could be had, state of a state, may be re-examined, and reversed or affirmed in the supreme court of the United States, upon a writ of error: of jurisdic 1. In which suit is drawn in question the validity of Grounds a treaty or statute of, or an authority exercised under tion. the United States, and the decision is against the validity of such treaty, statute, or authority: or, 2. Where is drawn in question the validity of a statute of, or authority exercised under any state, on the ground of such statute or authority being repugnant to the constitution, treaties, or laws of the United States, and the decision is in favor of the validity of such statute of, or authority exercised under, the state: or, 3. 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 constitution, treaty, statute, or commission. But no other error shall be assigned or regarded as a ground of reversal, in any such cause as aforesaid, than such as appears on the Must be face of the record, and immediately respects the be- apparent fore mentioned questions of validity or construction record, &c. against its authority, any suit or prosecution, civil or criminal, against any officer, civil or military, or any other person, commenced in a state court for any act done or committed during the rebellion, in virtue or under color of authority derived from the president, or any act of congress, may be removed from the state court during its pendency, on the petition of the defendant; or, after judgment, by appeal, on the petition of either party, except in criminal cases, wherein there has been a judgment of acquittal; and from the final judgment of the circuit court in every such case, a writ of error is given to the supreme court. * on the PART 1. of the said constitution, treaties, statutes, commissions, or authorities in dispute. Judicial decisions. The foregoing legislative acts have given rise to endless forensic disputation, a considerable proportion of which seems referable to want of due attention to their provisions, and to antecedent adjudications.1 It is now proposed to state and illustrate the judicial interpretations which these acts have received; and in doing so, to treat, conjointly, of the jurisdiction they confer, with respect to the national courts and to the state courts. Many of the decisions, especially those relating to the finality of judgments and decrees, are applicable alike to both. Little would be gained by an attempt to sever them, and it would unavoidably lead to prolixity and repetition. Appellate, 1. As shown in the last chapter, the constitution, can be exercised after defining the original jurisdiction of the supreme only in pursuance court, proceeds to ordain that in all the other cases of legislative autho- comprised within the judicial power of the United rity. States, this court shall have appellate jurisdiction "with such exceptions and under such regulations as congress shall make." And we have now seen that congress did not see fit, in pursuance of this discretionary power, expressly to limit the appellate jurisdiction of the court, by forbidding its exercise in certain specified cases; but, on the contrary, chose simply to designate the cases to which it should extend. This omission to make "exceptions" by negative or restrictive words, gave rise to the question whether the court might not entertain jurisdiction of other cases, in virtue of the authority conferred by 1 This is especially true of the 25th section of the judicial act. It is wonderful to what misapprehensions it has led, and how often the supreme court has been called upon to decide over again what had already been virtually decided. the constitution. But the reverse of this was held in CHAP. 4. the early case of Wiscart v. Dauchy (3 Dallas, 321); and the same result was, a few years later, more fully reasoned out by Chief Justice MARSHALL, in pronouncing the decision of the court in Durouseau v. The United States, 6 Cranch, 307. The question, therefore, in any given case, whether the court possesses appellate jurisdiction over it, resolves itself into the simple inquiry whether such case falls within the legislative provisions enacted in pursuance of the constitution relative to the exercise of this branch of jurisdiction. If congress have provided no rule of proceeding applicable to the case, either in express terms, or inferentially by fair intendment, no cognizance can be taken of it. It is not, however, to be understood by this that the appellate powers of the supreme court are given to it by the judicial act. They are given by the constitution. And had this act merely organized the court, without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns it. In that case, the legislature, by omitting to exercise the right of excepting from its constitutional powers, would necessarily have left those powers undiminished. The doctrine of the cases above cited, results from the fact that congress, in proceeding to carry this part of the constitution into effect, have provided extensively for the exercise of this branch of jurisdiction; and are, therefore, to be understood as having intended to execute the power they possessed of making exceptions. For though they have not made those exceptions in terms, yet their affirmative description of the appellate power of the court implies a negative upon the exercise of such constitutional |