mandamus; and the only question was, whether the mandamus could constitutionally issue from the Supreme Court.a

The judiciary act, sec. 13, authorized the Supreme Court to issue writs of mandamus in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States. There was no doubt that the act applied to the case, and gave the power, if the law was constitutional; but the court was of opinion that the act, in this respect, was not warranted by the constitution, because the issuing of a mandamus in this case would be an exercise of original jurisdiction not within the constitution, and congress had not power to give original jurisdiction to the Supreme Court in other cases than those described in the constitution. It had not authority to give to the Supreme Court appellate jurisdiction, where the constitution had declared that its jurisdiction should be original, nor original jurisdiction where the constitution had declared it should be appellate. To enable the court to issue a mandamus,

it must be shown to be an exercise, or *necessary to an *323 exercise, of appellate jurisdiction.

The Supreme Court may accordingly issue a mandamus to a Circuit Court of the United States, commanding it to sign a bill of exceptions, for this is an exercise of power warranted by the principles and usages of law.b

In the case of Kendall v. The United States, 12 Peters, 524, it was decided, that the Circuit Court for the District of Columbia had authority to issue and enforce obedience to a mandamus, requiring the performance of a mere ministerial act by the postmaster-general, and which neither he nor the President had any authority to deny or control; for the postmaster-general is not subject to the direction and control of the President, with respect to the execution of duties imposed upon him by law. (1) The President has no dispensing power over the law, nor will a mandamus lie to correct the erroneous judgment of an inferior court. It is not the process to review judicial errors of any kind. Ex parte Hoyt, 13 Peters, 279. Ex parte Whitney, Ib. 404. This is a settled principle in English and American law. The King v. Justices of Monmouthshire, 7 Dowl. & Ryl. 334. Judges of Oneida v. The People, 18 Wendell, 79. The People v. Judges of Dutchess C. P. 20, 1b. 658.

b Ex parte Crane and another, 5 Peters' U. S. Rep. 190. In the case of Barry

(1) A mandamus against the Secretary of the Navy will not lie, at the instance of an officer to enforce the payment of his salary. The duties of the secretary in making such payments, are not merely ministerial, but are official and to some extent discretionary, and the judicial department has no power to interfere with their discharge. Brashear v. Mason, 6 How. R. 92.

When a state is a par

ty.

a

(3.) The constitution gives to the Supreme Court original jurisdiction in those cases in which a state shall be a party; and in Fowler v. Lindsey, the question arose, when a state was to be considered a party. The parties in that suit claimed title to lands under grants from different states. The plaintiff brought his ejectment in the Circuit Court of Connecticut, claiming title under a grant from that state, and under a claim that the lands lay within the jurisdiction of that state. The defendant claimed title under a grant from New-York, and on the ground that the lands lay within the rightful as well as actual jurisdiction of New-York. The court laid down this rule on the subject of the jurisdiction of the Supreme Court, on account of the interest that a state has in the controversy, that it must be a case in which a state is either nominally or substantially the party; and that it is not sufficient that the state may be consequentially affected, as being bound to make retribution to her grantee upon the event of eviction. Though there may be a controversy relative to soil or jurisdiction between two states, yet if that controversy occurs in a suit between two individuals, to which neither of the states is a party upon the record, it is not a case within the original jurisdiction of the Supreme Court, because the states may contest the right of soil in the Supreme Court at any time, notwithstanding a decision in the suit between the individuals. Nor will a de

cision as to the right of soil between individuals affect *324 the right of the state as to *jurisdiction; and that jurisdiction may remain unimpaired, though the state may have parted with the right of soil. In such a case the Supreme Court would not allow an injunction, on a bill filed by the state of New-York against the state of Connecticut, to stay proceedings in the ejectment suit between individuals, though a general claim of soil and jurisdiction was involved in the private suit, because the state of New-York was not a party

v. Mercein, in the Supreme Court of the United States, at Washington, January, 1847, it was adjudged that a writ of error would not lie to the Supreme Court, upon the judgment of a Circuit Court, refusing to grant a writ of habeas corpus, in a case of a father claiming from the mother his infant daughter. The case did not come within the provision of the 22d section of the judiciary act of 1789. The case was not within the limits assigned by the act of congress to the appellate jurisdiction of the Supreme Court.

a 3 Dallas, 411.

to the suit in the Circuit Court, nor interested in the decision.a

risdiction de

on

(4.) The appellate jurisdiction of the Supreme Court exists Appellate juonly in those cases in which it is affirmatively given. In the pends case of Wiscart v. Dauchy, the Supreme Court considered Congress, that its whole appellate jurisdiction depended upon the regulations of congress, as that jurisdiction was given by the constitution in a qualified manner. The Supreme Court was to have appellate jurisdiction, "with such exceptions, and under such regulations, as congress should make;" and if congress had not provided any rule to regulate the proceedings on appeal, the court could not exercise an appellate jurisdiction; and if a rule be provided, the court could not depart from it. In pursuance of this principle, the court decided, in Clark v. Bazodone, that a writ of error did not lie to that court from a court of the United States' territory northwest of the Ohio, because the act of congress had not authorized an appeal or writ of error from such a court. It was urged, that the judicial power extended to all cases arising under the constitution, and that where a Supreme Court had not original, it had appellate jurisdiction, with such exceptions and under such regulations as congress should make; and that the appellate power was derived from the constitution, and must be full and complete, in all cases appertaining to the federal judiciary, *where congress had not by law interfered and control- *325 led it, by exceptions and regulations. The court, however, adhered to the doctrine which they had before laid down, and proceeded upon the principle, that though the appellate powers of the court were given by the constitution, they were limited entirely by the judiciary statutes, which are to be understood as making exceptions to the appellate jurisdiction of the court, and to imply a negative on the exercise of such a power, in every case but those in which it is affirmatively given and described by statute. This was the principle also

New-York v. Connecticut, 4 Dallas, 3. In the case of The State of Rhode Island v. The State of Massachusetts, 12 Peters, 657, it was decided, after a very elaborate discussion, that the Supreme Court had jurisdiction to ascertain and establish boundaries between two states, and to restore and confirm rights of sovereignty and jurisdiction.

b 3 Dallas, 321.

VOL. I.

23

c 1 Cranch, 212.

power con

explicitly declared in the case of The United States v. More,a and in the case of Durousseau v. The United States. In the first of those cases, the rule of construction was carried to the extent of holding that no appeal or writ of error lay in a criminal case from the Circuit Court of the District of Columbia, because the appellate jurisdiction, as to that district, applied, by the terms of the statute, to civil cases only. The rule was afterwards, in ex parte Kearney, laid down generally, that the Supreme Court had no appellate jurisdiction from Circuit Courts in criminal cases confided to it by the laws of the United States. (1) Nor has it any appellate jurisdiction over a judgment of the circuit courts, in cases brought before it by writ of error from a district court, though it has over judgments and decrees of the circuit courts, in suits brought before them by appeal from the district courts.d

Judicial (5.) The constitution says, that the judicial power shall fined to cases extend to all cases arising under the constitution, laws and the constitu- treaties of the United States; and it has been made a ques

arising under

tion, treaties and laws.

*326

tion, as to what was a case arising under a treaty. In *Owings v. Norwood,e there was an ejectment between two citizens of Maryland, for lands in that state; and the defendant set up an outstanding title in a British subject, which he contended was protected by the British treaty of 1794. The Court of Appeals decided against the title thus set up; and the Supreme Court of the United States held that not to be a case within the appellate jurisdiction of the

a 3 Cranch, 159.

b 6 Cranch, 307.

7 Wheaton, 38. Ex parte Watkins, 3 Peters' R. 193. 7 Peters' U. S. Rep. 568. S. P.

d United States v. Goodwin, 7 Cranch, 108. United States v. Gordon, Ibid. 287. But see supra, p. 299, now altered by act of congress. Mr. Justice Story, in the case Ex parte Christy, 3 Howard, 292. 317, stated that no appeal was given or lies from the judgments either of the District or Circuit Courts in criminal cases. So it was adjudged that the Supreme Court has no power of appeal from the decrees of the District Court sitting in bankruptcy, nor no power to issue a prohibition, except when the District Court is proceeding as a court of admiralty and maritime jurisdiction. See, also, infra, p. 383.

e 5 Cranch, 344.

(1) The U. S. Sup. Court has no power of revision of the judgment of the District and Circuit Courts, in criminal cases, except in cases in which the opinions of the judges in the subordinate tribunals are opposed. Forsyth v. The United States, 9 How. R. 571.

court, because it was not a case arising under the treaty. The treaty itself was not drawn in question, either directly or incidentally. The title in question did not grow out of the treaty, and as the claim was not under the treaty, the title was not protected by it; and whether the treaty was an obstacle to the recovery, was then a question exclusively for the state court.a

jurisdiction

to

matter on the

(6.) The judiciary act of 1789 required, on error or appeal Appellate from a state court, that the error assigned appear on the face confined of the record, and immediately respect some question affect-record. ing 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. But the court has been so precise upon this point, that in Miller v. Nichols, notwithstanding it was believed that an act of congress, giving the United States priority in cases of insolvency, had been disregarded, yet, as the fact of insolvency *did not *327

a A case, in the sense of the constitution, says Mr. Justice Story, (Commentaries on the Constitution, vol. iii. p. 507,) is a suit in law or equity, and arises when some subject, touching the constitution, laws or treaties of the United States, is submitted to the courts by a party, who asserts his rights in the form prescribed by law. See, also, 9 Wheaton, 819, and 9 Peters, 224.

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