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Commentaries on American Law (1826-30)

Chancellor James Kent

LECTURE 15
Of the Original and Appellate Jurisdiction of the Supreme Court

HAVING taken a general view of the great departments of the government of the United States, I proceed to a more precise examination of its powers and duties, and of the degree of subordination under which the state governments are constitutionally placed.

It is to be observed that the constitution of the United States is an instrument containing the grant of specific powers, and the government of the union cannot claim any powers but what are contained in the grant; and given, either expressly, or by necessary implication. The powers vested in the state governments by their respective constitutions, or remaining with the people of the several states prior to the establishment of the constitution of the United States, continue unaltered and unimpaired, except so far as they are granted to the United States. We are to ascertain the true construction of the constitution, and the precise extent of the residuary authorities of the several states, by the declared sense and practice of the governments respectively, when there is no collision; and in all other cases where the question is of a judicial nature, we are to ascertain it by the decisions of the Supreme Court of the United States; and those decisions ought to be studied, and universally understood, in respect to all the leading questions of constitutional law. The people of the United States have declared the constitution to be the supreme law of the land, and it is entitled to universal, and implicit obedience. Every act of congress, and every act of the legislatures of the states, and every part of the constitution of any state, which is repugnant to the constitution of the United States, is necessarily void. This is a clear and settled principle of constitutional jurisprudence. The judicial power of the union is declared to extend to all cases in law and equity arising under the constitution; and to the judicial power it belongs, whenever a case is judicially before it, to determine what is the supreme law of the land. The determination of the Supreme Court of the United States must be final and conclusive, because the constitution gives to that tribunal the power to decide, and gives no appeal from the decision.

With respect to the judicial power, it may be generally observed as the Supreme Court declared, in the case of Turner v. The Bank of North America,1 that the disposal of the judicial power, except in a few specified cases, belongs to congress; and the courts cannot exercise jurisdiction in every case to which the judicial power extends, without the intervention of congress, who are not bound to enlarge the jurisdiction of the federal courts to every subject which the constitution might warrant. So again it has been decided,2) that congress have not delegated the exercise of judicial power to the circuit courts, but in certain specified cases. The 11th section of the judiciary act of 1789, giving jurisdiction to the circuit courts, has not covered the whole ground of the constitution, and those courts cannot, for instance, issue a mandamus, but in those cases in which it may be necessary to the exercise of their jurisdiction.3

The original jurisdiction of the Supreme Court is very limited. It is confined by the constitution to those cases which affect ambassadors, other public ministers and consuls, and to those in which a state is a party;4 and it has been made a question, whether this original jurisdiction of the Supreme Court was intended by the constitution to be exclusive. The judiciary act of 1789 seems to have considered it to be competent for congress to vest concurrent jurisdiction, in those specified cases, in other court, for it gave a concurrent jurisdiction, in some of those cases, to the circuit courts.5 In the case of The United States v. Ravara,6 this point arose in the Circuit Court for Pennsylvania district, and it was held that congress could vest a concurrent jurisdiction in other courts, of those very cases over which the Supreme Court had original jurisdiction; and that the word original was not to be taken to imply exclusive cognizance of the cases enumerated. But the opinion of the Supreme Court of the United States, in Marbury v. Madison,7 goes far towards establishing the principle of exclusive jurisdiction in the Supreme Court in all those cases of original jurisdiction. This last case was considered, in Pennsylvania v. Koslaff,8 as shaking the decision in the case of Ravara; and yet the question was still left in doubt by the Supreme Court, in the case of The United States v. Ortega,9 and a decision upon it was purposely waived.

Admitting this original jurisdiction of the Supreme Court may be shared by other courts in the discretion of congress, it has been decided, as we shall presently see, that this original jurisdiction cannot be enlarged, and that the Supreme Court cannot be vested, even by congress, with any original jurisdiction in other cases than those described in the constitution. It is the appellate jurisdiction of the Supreme Court that clothes it with most of its dignity and efficacy, and renders it a constant object of attention and solicitude on the part of the governments and the people of the several states.10

(1.) The Supreme Court has appellate jurisdiction in certain cases over final decisions in state courts.

We have seen that, by the act of congress of the 24th of September, 1789, sec. 25, a final judgment or decree in any suit in the highest court of law or equity of a state, where is drawn in question the validity of a treaty, and the decision is against its validity; or where is drawn in question the construction of a treaty, and the decision is against the title, right, or privilege, set up or claimed under it, may be re-examined, and reversed or affirmed, in the Supreme Court of the United States, upon a writ of error; and, upon reversal, the cause may be remanded for final decision; or the Supreme Court may, at their discretion, if the, cause shall have been once remanded before, proceed to a final decision of the same, and award execution. Under this authority, in the case of Clerke v. Harwood,11 it was declared, that if the highest court in a state reverse the judgment of a subordinate court, and, on appeal to the Supreme Court of the United States, the judgment of the highest state court be in its turn reversed, it becomes a mere nullity, and the mandate for execution may issue to the inferior state court. But, in the case of Fairfax v. Hunter,12 a writ of error from the Supreme Court of the United States was awarded to the Court of Appeals of Virginia, upon a judgment in that court, against the right claimed under a construction of the treatises made with Great Britain in 1783 and 1794, and the judgment of the Court of Appeals was reversed, and the cause remanded, and the Court of Appeals below were required to cause the original judgment which had been reversed in that court, to be carried into due execution. The Court of Appeals, when the cause came back to them, resolved, that the appellate power of the Supreme Court of the United States did not extend to that court, and that so much of the act of congress as extended the appellate jurisdiction of the Supreme Court, to that court, was not warranted by the constitution; and that the proceedings in the Supreme Court were coram non judice in relation to that court, and they, consequently, declined obedience to its mandate. A writ of error was awarded upon this refusal, and the cause came up again before the Supreme Court of the United States, in a case in which the judgment of the court below drew in question, and denied the validity of the statute of the United States, authorizing an appeal from a state court.13

A graver question could scarcely have arisen in that court, or one involving considerations of higher importance and delicacy, or more deeply affecting the permanency and tranquillity of the American union. In the opinion which was delivered, the court observed that the constitution unavoidably dealt in general language, and did not enter into a minute specification of powers or declare the means by which those powers were to be carried into execution. This would have been a perilous and difficult, if not an impracticable task; and the constitution left it to congress, from time to time, to adopt its own means to effectuate legitimate objects, and to mold and model the exercise of its powers as its own wisdom, and the public interests, should. require.

The judicial power of the United States is declared to extend to all cases arising under treaties made under the authority of the United States. It was an absolute grant of the judicial power in that case, and it was competent for the people of this country to invest the general government with that, or with any other powers they might deem proper and necessary; and to prohibit the states from the exercise of any powers which were, in their judgment, incompatible with the objects of their general compact. Congress were bound, by the injunctions of the constitution, to create inferior courts, in which to vest all that judicial jurisdiction which, was exclusively vested in the United States, and of which the Supreme Court cannot take any other than an appellate cognizance. The whole judicial power must be at all times vested, either in an original or appellate form, in some courts created under the authority of the United States. The grant of the judicial power was absolute, and it was imperative upon congress to provide for the appellate jurisdiction of the federal courts, in all the cases in which judicial power was exclusively granted by the constitution, and not given by way of original jurisdiction to the Supreme Court.

The court, in their examination of the judicial power, supposed that the constitution took a distinction between two classes of enumerated cases. It intended that the judicial power, either in an original or appellate form, should extend absolutely to all cases in law and equity arising under the constitution, the laws of the United States, and treaties made under their authority; and to all cases affecting ambassadors. other public ministers, and consuls; and to all cases of admiralty and maritime jurisdiction, because those cases were of vital importance to the sovereignty of the union, and they entered into the national policy, and affected the national rights, and the law and comity of nations. The original or appellate jurisdiction ought, therefore, to be commensurate with the mischiefs intended to be remedied, and the policy in view. But, in respect to another class of cases, the constitution seemed, ex industria, to drop the word all, and to extend the jurisdiction of the judiciary, not to all controversies, but to controversies in which the United States were a party, or between two or more states, or between citizens of different states, etc. and to leave it to congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate. But, whatever weight might be due to that distinction, it was held to be manifest, that the judicial power was, unavoidably, in some cases, exclusive of all state authority, and in all others, might be made so at the election of congress. The judiciary act, throughout every part of it, and particularly in the 9th, 11th and 13th sections, assumed, that in all the cases to which the judicial powers of the United States extended, congress might rightfully vest exclusive jurisdiction in their own courts. The criminal, and the admiralty and maritime jurisdiction, must be exclusive; and it was only in those cases where, previous to the constitution, state tribunals possessed jurisdiction independent of national authority, that they could now constitutionally exercise a concurrent jurisdiction.

The exercise of appellate jurisdiction was not limited by the constitution to the Supreme Court. Congress might create a succession of inferior tribunals, in each of which it might vest appellate, as well as original jurisdiction. The appellate jurisdiction of the Supreme Court, in cases where it had not original jurisdiction, was declared to be subject to such exceptions and regulations as congress might prescribe. It remained, therefore, entirely in the discretion of congress, to cause the judicial power to be exercised in every variety of form of appellate jurisdiction, and the appellate power was not limited to cases pending in the courts of the United States. If it had been limited to cases in those courts, it would necessarily follow, that the jurisdiction of the federal courts must have been exclusive of state courts, in all the cases enumerated in the constitution. If the judicial power of the United States extends to all cases arising under the constitution, laws, and treaties of the union, and to all cases of admiralty and maritime jurisdiction, the state courts could not, consistently with the express grant in the constitution, entertain any jurisdiction in those cases without the right of appeal. If the state courts might entertain concurrent jurisdiction over any of those cases without control, then the appellate jurisdiction of the United States, as to such cases, would have no existence, which would be contrary to the manifest intent of the constitution. The appellate power of the federal courts must extend to the state courts, so long as the state courts entertain any concurrent jurisdiction over the cases which the constitution has declared shall fall within the cognizance of the judicial power. It is very plain, that the constitution did contemplate that cases within the judicial cognizance of the United States would arise in the state courts, in the exercise of their ordinary jurisdiction; and that the state courts would incidentally take cognizance of cases arising under the constitution, the laws, and the treaties of the United States; and as the judicial power of the United States extended to all such cases, by the very terms of the constitution, it followed as a necessary consequence, that the appellate jurisdiction of the courts of the United States must, and did extend, to state tribunals, and attach Upon every case within the cognizance of the judicial power.

All the enumerated cases of federal cognizance are those which touch the safety, peace, and sovereignty of the nation, or which presume that state attachments, state prejudices, state jealousies, and state interests, might sometimes obstruct or control the regular administration of justice. The appellate power, in all these cases, is founded on the clearest principles of policy and wisdom, and is deemed requisite to fulfill effectually the great and beneficent ends of the constitution. It is likewise necessary, in order to preserve uniformity of decision throughout the United States, upon all subjects within the purview of the constitution; and the mischiefs of opposite constructions, and contradictory decisions in the different states, on all these points of general concern, would be deplorable.

The right of removal of a cause from a state court by a defendant who is entitled to try his rights, and assert his privileges in the national forum, is also the exercise of appellate jurisdiction; and the right of removal of a cause may exist before or after judgment, in the discretion of congress, The Supreme Court, by a train of reasoning which appears to be unanswerable and conclusive, came to the decision, that the appellate power of the United States did extend to cases pending in the state courts, and that the 25th section of the judiciary act of 1789, authorizing the exercise of this jurisdiction in the specified cases by a writ of error, was supported by the letter and spirit of the constitution. The judgment of the Court of Appeals in Virginia, rendered on the mandate in the cause, and denying the appellate jurisdiction of the Supreme Court, was consequently reversed, and the judgment of the District Court in Virginia, which the Court of Appeals in Virginia had reversed, was affirmed.

Whether the Supreme Court had authority to issue the compulsory process of mandamus to the state courts, to enforce the judgment of reversal, was a question which the court did not think it necessary to discuss or decide; and one of the judges, in the separate opinion which he gave in the cause, seemed to think that the Supreme Court, in the exercise of its appellate jurisdiction, was supreme over the parties and over the case, but that it had no compulsory control over the state tribunals. The court itself gave no intimation of an opinion, whether it could or could not lawfully resort to compulsory or restrictive process, operating in personam upon the state tribunals; and it was no doubt deemed discreet not to assert more authority constitutionally vested in the court, than was necessary for the occasion. If the appellate jurisdiction be founded, as it no doubt was in that case, on a solid basis, it would seem to carry with it, as of course, all the coercive power incident to every such jurisdiction, and requisite to support it.

(2.) Another question, which was largely discussed and profoundly considered by the Supreme Court, was touching its authority to issue a mandamus, when not arising in a case under its appellate jurisdiction, and when not required in the exercise of its original jurisdiction. In the case of Marbury v. Madison,14 the plaintiff had been nominated by the president, and by and with the advice and consent of the senate, had been appointed a justice of the peace for the District of Columbia, and the appointment had been made complete and absolute by the president’s signature of the commission, and the commission had been made complete by affixing to it the seal of the United States. The secretary of state, after all this, withheld the commission, and the withholding of it was adjudged to be a violation of a vested legal right, for which the plaintiff was entitled to a remedy by mandamus; and the only question was, whether the mandamus could constitutionally issue from the Supreme Court.

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 exercise, of appellate jurisdiction.

(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,15 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 tinder 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 tar 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 decision as to the right of soil between individuals affect 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 to the suit in the Circuit Court, nor interested in the decision.16

(4.) The appellate jurisdiction of the Supreme Court exists only in those cases in which it is affirmatively given. In the case of Wiscart v. Dauchy,17 the Supreme Court considered 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 Clarke v. Bazadone,18 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 the 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 controlled 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 explicitly declared in the case of The United States v. More,19 and in the case of Durousseau v. The United States.20 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,21 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.

(5) The constitution says, that the judicial power shall extend to all cases arising under the constitution, laws, and treaties of the United States; and it has been made a question as to what was a case arising under a treaty. In Owings v. Norwood,22 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 that 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 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.

(6.) 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 question 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 the Supreme Court appellate jurisdiction. The Court was so precise upon this point, that in Miller v. Nicholls,23 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 appear upon record, the court decided that they could not take jurisdiction of the case.

(7.) 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;24 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 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 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. A 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 id the constitution. One of the instruments by which that duty might be peaceably 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 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 preserving them from all violation from every quarter, so far as judicial decision 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 a 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 judicial 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 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.

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.25


NOTES

     1.    4 Dallas, 8.
     2.    McIntyre v. Wood, 7 Cranch, 504.
     3.    Art. 3. sec 2.
     4.    Smith v. Jackson, 1 Paine, 453. and see Infra, p. 323.
     5.    Act of Sept. 24th, 1789, sec. 13.
     6.    2 Dallas, 297.
     7.    1 Cranch, 137.
     8.    5 Serg. & Rawle, 545.
     9.    11 Wheaton, 467.
   10.    The Imperial Chamber and the Aulic Council in the Germanic constitution were tribunals of appellate jurisdiction only. It was the original law of Germany, that no man could be sued, except in the state or province to which he belonged.1 Ballam on the Middle Ages, 371-2.
   11.    3 Dallas, 312.
   12.    7 Cranch, 603.
   13.    1 Wheaton, 304. Martin v. Hunter.
   14.    1 Cranch, 137.
   15.    3 Dallas, 411.
   16.    4 Dallas, 3. New York v. Connecticut.
   17.    3 Dallas, 321.
   18.    1 Cranch, 212.
   19.    3 Cranch, 159.
   20.    6 Cranch, 307.
   21.    7 Wheaton, 38.
   22.    5 Cranch, 344.
   23.    4 Wheaton, 311. In Hickie v. Starke, I Peters’ Rep. 98. it was held, that in the exercise of the appellate jurisdiction of the Supreme Court, the record must show a complete title under the treaty or act of congress, and that the judgment of the court below was in violation of that treaty or statute.
   24.    6 Wheaton, 264.
   25.    In Williams v. Norris, and Montgomery v. Hernandes, 12 Wheaton, 117, 129. under the 25th section of the judiciary act of 1789, chap. 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 stale 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.