This is an application for a peremptory mandamus to the circuit court of the United States in and for the northern district of California, commanding the said court to allow the United States an appeal to this court from the final decree of the circuit court, entered on May 18, 1865, confirming to the city of San Francisco certain lands containing an area of four square leagues, mentioned and described in the said

decree of the circuit court.

The circuit court acquired jurisdiction of the claim of the city of San Francisco to the said lands by virtue of the statute of July 1, 1864. The city of San Francisco presented its petition to the board of land commissioners in July, 1852, claiming that it was entitled, as successor of the alleged pueblo of San Francisco, to the proprietorship of a tract of land situated in the county of San Francisco, and embracing so much of the peninsula on which the city is located as will contain an area of four square leagues.

section of the act of Congress passed July 1, 1864. The provision is that whenever the district judge of any one of the district courts of the United States for California is interested in any land, the claim to which, under the act 1851, is pending before him, on appeal from the board of commissioners, the said district court shall order the case to be transferred to the circuit court, which court shall thereupon, take jurisdiction and determine the same. The said district court may also order a transfer to the said circuit court, of any other cases arising under said act, pending before them, affecting the title to lands within the corporate limits of any city or town, and in such cases both the district and circuit judges may sit.

claim for the residue.

An appeal was taken from the decision of the board, under the act of March 3, 1851, to the district court of the United States for the northern district of California, and both parties gave notice of their intention to prosecute the appeal. Subsequently, however, the appeal was dismissed on the part of the United States, and at the date of the passage of the act of 1864, above mentioned, the case was pending in the district court on the appeal of the city

alone.

After the passage of the act of 1864 and under its authority, the case was transferred to the circuit court for the northern district of California.

In that court the case was heard and a decree entered on May 18, 1865, confirming the claim of the city of San Francisco to the four leagues of land before mentioned, with certain reservations and exceptions specified in the

decree.

Thereupon on the same day the United States and the city, respectively, moved the court that an appeal be allowed from the said decree to this court; on behalf of the former from the whole of the decree, and on the part of the lat

ter from so much thereof as includes in the estimate of the quantity of four square leagues confirmed to the city, the parcels of land which have been reserved or dedicated to public uses by the United States. These motions, the court, on May 29, 1865, overruled and denied. The question accordingly presented on this application is, whether under the Constitution and statutes an appeal will lie to this court from the decree of the circuit court to which reference has been made.

Messrs. James Speed, Atty. Gen., and J. Hubley Ashton, for petitioner.

Mr. Justice Nelson delivered the opinion of the court:

The question in this case is whether or not an appeal lies from the decree of the circuit

by the decree, applied in due form, to the court for an appeal to the Supreme Court of the United States, which application, after full consideration, was denied, on the ground that upon a true construction of the above 4th section, no appeal had been provided for. not without its difficulties. The question is a nice one in practice, and is

The section itself does not provide for an appeal, and, unless the case is governed by some general law, or established practice of the court derived from acts of Congress, the right of appeal cannot be maintained. Sept. 24, 1789, ch. 20 (1 Stat. 73).

By the 22d section of the judiciary act, in connection with the act of March 3, 1803, ch. 40 (2 Stat. 244), all judgments and decrees in civil actions, and in suits in equity in a circuit court, brought there by original process, or removed there from courts of the several states, or removed there by appeal from the district court, may be re-examined and reversed or af firmed in the Supreme Court. It is said that the present case was not brought into the cir cuit by an appeal from the district court, and hence is not within the provision. The case, as we have seen, comes into the circuit under the 4th section of the act of July 1, 1864, ch. 194 (13 Stat. 333), not by appeal, but by an order of the district court transferring it to the circuit.

This 4th section was taken from, or part of it, at least, is but a transcript of the 11th section of an act of Congress, passed May 8, 1792, ch. 36 (1 Stat. 275). The act provided that in all suits and actions in any district court of the United States in which it shall appear that the judge is in any way interested, or has been counsel for either party, it shall be his duty to cause the fact to be entered in the minutes of his court, and order an authenticated copy thereof, with all the proceedings in the suit, to the next circuit court, which court shall thereupon take cognizance of the case, and hear and 675*] determine the same. And a similar provision will be found in the act of March 2, 1809, ch. 27 (2 Stat. 534), in case of the disa

bility of the district judge to perform the du- | ties of his office during such disability. The cases are transferred by the clerk on the order of the circuit judge. And a like provision is found in the act of March 3, 1821, ch 51 (3 Stat. 643), in case of the relationship of the judge to either of the parties to the suit.

Now, these acts, as will be seen from their date, have been in force from an early period, and it has never been doubted that the judgments and decrees rendered in the circuit court were subject to be re-examined, reversed, or armed by the Supreme Court, as in any other case under the 22d section of the judiciary act. A case was before us at the present term that had been transferred to the circuit under the act of 1792.

The law providing for the transfer of the case from the district court to the circuit, was regarded as enlarging the cases provided for in the 22d section; and virtually incorporated therein a removal by transfer, when thus authorized, to the circuit, in addition to the cases of removal by appeal as provided for in that

section.

It will be observed that this 4th section of the act of 1864, provides for a compulsory transfer only in the case of an interest of the judge in the land in controversy. But suppose he has been counsel in the cause, or disabled by sickness, or by reason of relationship to either of the parties, this 4th section does not provide for the disability. The cases were, however, already provided for by the acts of 1792, 1809, and 1821, and they are peremptory, that on application of the counsel of either party, the case shall be transferred to the circuit court. The construction, therefore, contended for, would present the singular inconsistency of a denial of an appeal, in case of the interest of the judge in the subject-matter of the controversy; but its allowance in case of a transfer, when he had been counsel in the cause, or general disability to discharge his duties, or in case of relationship to either of the parties.

676*] *The remaining clause of this section makes it optional with the judge to transfer other causes arising under the act of 1851, affecting the title to lands within the corporate limits of a city or town, and then both judges may sit.

But whether the transfer is optional or compulsory, cannot vary its legal effect. If made at all, it must be by the authority of the 4th section by the authority of law-the same as in the case of interest of counsel, or general disability of the judge or from relationship, and falls within the practice applicable to these

cases.

This clause is subject to an additional objection; for, as the transfer is optional, and may be granted or not, if the decree or judgment of the circuit court is not matter of appeal, or writ of error, whether any appeal be permitted or not in the case, is within the power of the district judge. If he retains the case and determines it, an appeal, it is admitted, lies; if he transfers the case, and the decree or judgment is in the circuit, it must be denied. We think Congress could hardly have intended this result. It places the right of an appeal not on the judgment of the circuit judge who rendered

it, but in the discretion of the judge of the district court.

It is urged that the proceedings under the act of 1851, concerning California land titles, are special, and are not to be regarded as cases either in law or equity. The law is general, and concerns the title to the whole of the real property of the state. Many of the provisions of this law are taken from the act of May 26, 1824, ch. 173 (4 Stat. 52), which provided for the trial of claims under imperfect Spanish and French grants within the state of Missouri before the district judge of that district. These were grants under the protection of the Treaty of San Ildefonso. The proceedings were informal, like those under the act of March 2, 1851, ch. 41 (9 Stat. 631). The claims were to be determined according to the law of nations, the stipulations of the treaty, the several acts of Congress in relation thereto, the laws and ordinances of the government from which the titles were derived. The proceedings were regarded as in the nature of a proceeding in equity, though the analogy *was not [*677 very close, the decision on the claim being in the form of a decree.

The proceedings under the act of 1851, we think, should be regarded in the same lightin the nature of a proceeding in equity. The form of the decision has always been in conformity thereto. An appeal is the appropriate mode of bringing the case up to the appellate court for review, and such has been the uniform practice under the act.

Upon the whole, our conclusion is, that an appeal lies in behalf of the United States.

Mr. Justice Field, dissenting:

Unable to concur in the opinion of a majority of the court, which has just been read, I will proceed to give the grounds of my dissent.

The Supreme Court by the Constitution, takes its appellate jurisdiction over cases "with such exceptions, and under such regulations as the Congress shall make." And the designation, by acts of Congress, of the cases to which this jurisdiction shall extend, has uniformly been held to be a legislative declaration that all other cases are excepted from it. Thus, in Wiscart v. Dauchy, 3 Dall. 327, which was decided as early as 1796, the court said that, if Congress had not provided any rule to regulate its proceedings on appeal, it could not exercise an appellate jurisdiction, and, if a rule were provided, the court could not depart from it. And, in Clarke v. Bazodone, 1 Cranch, 212, it was decided that a writ of error did not lie from this court to the general court of the territory northwest of the Ohio, because Congress had not by its legislation authorized such writ. It was urged, on the argument, that the judicial power under the Constitution extended to all cases arising under the Constitution and laws of the United States, and to controversies in which the United States were a party; and that the Supreme Court had appellate jurisdiction in all these cases, with such exceptions *and under such regulations [*678 as Congress might make; that Congress had no exception in that case, which was one arising under the laws of the United States, and no regulation was necessary to give the court the

appellate power; that it derived that from the Constitution itself. But the court adhered to its previous ruling, although observing at the same time that from the manifest errors on the face of the record it felt every disposition to support the writ.

In Durousseau v. The United States, 6 Cranch, 307, the subject was again considered, and the court held that though its appellate powers were given by the Constitution, they were limited and regulated by the judicial act and such other acts as had been passed on the subject. | "When the first legislature of the Union," said Mr. Chief Justice Marshall, in delivering the opinion of the court, "proceeded to carry the 3d article of the Constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the Supreme Court. They have not, indeed, made these exceptions in express terms. They have not declared that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and its affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it." And, in illustration of this principle, reference is made to the provision of the law which allows a writ of error to a judgment of the circuit court, where the matter in controversy exceeds the value of $2,000. "There is no express declaration," said the Chief Justice, "that it will not lie where the matter in controversy shall be of less value. But the court considers this affirmative description as manifesting the intent of the legislature to except from its appellate jurisdiction all cases decided in the circuits where the matter in controversy is of less value, and implies negative words." 679*] *It follows, therefore, that the appellate jurisdiction of this court exists only in those cases in which it is expressly granted. In conformity with this principle it has been held that such jurisdiction does not extend to final judgments in criminal cases, it not having been conferred by Congress. A question arising in a criminal case can only be brought before this court for decision upon a certificate of a division of opinion between the judges of the circuit court. Forsyth v. U. S. 9 How. 571. So, under the judiciary act of 1789, jurisdiction to review a judgment or decree of the circuit court, rendered in an action brought before it from the district court on writ of error, was denied, as the act only mentioned judgments and decrees brought before the circuit court on appeal from the district court. U. S. v. Goodwin, 7 Cranch, 108.

The act of July 1st, 1864, under which the circuit court acquired jurisdiction over this case, makes no provision for an appeal from the decree of the court, or for any re-examination of the decree by the Supreme Court. If an appeal exists, it must be found in the amendatory judiciary act of March 3d, 1803, or in the act of March 3d, 1851, to ascertain and settle private land claims in the state of California.

The judiciary act of 1789 only provides for a review upon a writ of error of the final judgments and decrees of the circuit court where the matter in dispute exceeds the sum or value

of $2,000. It is the act of 1803 which extends the appellate power of the court to a review of final judgments and decrees brought up on appeal when the matter in dispute is of the like amount or value; and it limits the review to judgments and decrees rendered in "cases of equity, of admiralty, and maritime jurisdiction, and of prize or no prize." Subsequent acts of Congress have reduced the required amount or value of the matter in dispute in some cases— as in suits for the protection of copyrights and patents; but in none of them is there any change in the character of the case in which the judg ment or decree of the *circuit court can [*680 be reviewed on appeal. Where a review of the action of the circuit court upon any other mat. ter is intended, it is authorized by special provision in the act creating the proceeding. The question, then, upon the act of 1803 is whether its terms embrace a proceeding taken for the ascertainment and settlement of a claim to land derived from the Spanish or Mexican governments. Such a proceeding is not a suit in admiralty, of course; nor is it a suit in equity, as those terms are there used. By those terms is meant a regular proceeding in a court of justice for relief on equitable grounds in contradistinction to an action at law for the enforcement of legal rights-a proceeding which can only be sustained when plain, adequate, and complete remedy cannot be had at law. The act mentions the pleadings by which the suit is to be conducted; it requires a transcript of the bill, answer, and deposition to be transmitted to the Supreme Court on appeal, clearly indicating the nature of the proceeding to which it refers. The proceeding for the confirmation of a California land claim is of a very different character; is governed by different principles, and supported by different evidence. It is a proceeding taken under a statute conferring a peculiar and limited jurisdiction, created for the purpose of enabling the government to separate private lands from the public domain, and to discharge its political obligations under the Treaty of Cession. It is in the nature of an inquisition of the government, invoked by the petition of the claimant, and governed by the stipulations of the Treaty, the law of nations, the laws, usages, and customs of the former government, the principles of equity, and the decisions of the Supreme Court, so far as they are applicable. Though the principles of equity are to constitute one ground of the decision, the proceeding has nothing in it whatever which will justify its designation as a suit in equity, as those terms are used in the act of 1803.

The heads of the different departments are often required by acts or resolutions of Congress to settle claims for losses and liabilities incurred on behalf of the government, or in *the attempted performance of contracts [*681 on the principles of equity. Thus, in the case of De Groot, who asserted claims for furnishing materials for the Washington aqueduct, the resolution of Congress directed the Secretary of War to settle the claims "on the principles of justice and equity." 12 Stat. at L. 874. Yet, no one would pretend that the proceeding before the secretary was a suit in equity, as these terms are understood in a legal sense.