Has a State zance of consuls? When is there origi favor, it is an undoubted case of jurisdiction. (United States v. Arredondo, 6 Pet. 709.) Banton v. Wilson, 4 Tex. 403, 404. It is the power to hear and determine the subject-matter in controversy between the parties to a suit; to adjudicate or to exercise judicial power over them, the question is, whether on a cause before a court, their action is judicial or extrajudicial; with or without authority of law to render a judgment or decree upon the rights of the litigant parties. If the law confer the power to render a judgment or decree, then the court has jurisdiction. (Rhode Island v. Massachusetts, 12 Pet. 718.) Banton v. Wilson, 4 Tex. 404. A State court has no jurisdiction of a suit against a consul; and court cogni- whenever this defect of jurisdiction is suggested, the court will quash the proceeding. It is not necessary that it should be by plea before general imparlance. Mannhardt v. Soderstrom, 1 Binn. 138; Davis v. Packard, 6 Pet. 41; Commonwealth v. Kosloff, 5 S. & R. 545; Griffin v. Dominguez, 2 Duer, 656. A consul may, however, be summoned as a garnishee in an attachment from a State court. Kidderlin v. Meyer, 2 Miles, 242. The circuit courts have no jurisdiction of a cause in which a State is a party. Gale v. Babcock, 4 Wash. C. C. 199; S. C. Id. 344; Cohens v. Virginia, already cited. In those cases in which original jurisdiction is given to the Supreme Court, founded on the character of the parties, the judicial power of the United States cannot be exercised in its appellate form. Osborn v. United States Bank, 9 Wheat. 820. But if a case draws in question the laws, Constitution, or treaties of 181, 182, 202. the United States, though a State be a party, the jurisdiction of the federal courts is appellate; for in such case the jurisdiction is founded, not upon the character of the parties, but upon the nature of the controversy. Cohens v. Virginia, 6 Wheat. 392; Martin v. Hunter's Lessee, 1 Wheat. 337. Congress has no power to confer original jurisdiction on the Supreme Court in other cases than those enumerated in this section. Marbury v. Madison, 1 Cr. 137; In the matter of Metzger. 5 How. 176, 191-2; In re Kaine, 14 How. 119. See St. 80, 13; 1 Brightly's Dig. 861, 862, and notes. nal and appellate jurisdiction? What is appellate jurisdiction? And it seems that the original jurisdiction is exclusive. (Marbury v. Madison, 1 Cr. 137.) Curtis' Com. § 108; Osborn v. Bank of United States, 9 Wheat. 738, 820, 821; Story's Const. § 1697– 1699. Where the character of the cause gives appellate jurisdiction, and the character of the party (as an ambassador or State) gives original jurisdiction, the appellate jurisdiction is not thereby ousted. (Cohens v. Virginia, 6 Wheat, 392 et seq.; Martin v. Hunter, 1 Wheat. 337.) Curtis' Com. § 109; Story's Const. § 1706-1721. The original jurisdiction of the Supreme Court can only include cases enumerated in the Constitution. (Marbury v. Madison, 1 Cr. 137.) 211. "IN ALL other CaseS BEFORE MENTIONED, THE SUPREME COURT SHALL HAVE APPELLATE JURISDICTION," &c.-It is the essential criterion of appellate jurisdiction, that it revises and corrects the proceedings in a cause already instituted, and does not create that cause. Marbury v. Madison, 1 Cr. 138; Curtis' Com. § 110, 113. The Supreme Court possesses no appellate power in any case, How must unless conferred upon it by act of Congress, nor can it, when con- it be conferred, be exercised in any other mode of proceeding than that which the law prescribes. Barry v. Mercein, 5 How. 119. The appellate powers are not given by the judicial act, but by the Constitution. They are limited and regulated by the judicial act, and by such other acts as have been passed upon the subject. Durousseau v. The United States, 6 Cr. 313. Curtis' Com. $112. Congress may prescribe the mode of exercising this appellate jurisdiction. Marbury v. Madison, 1 Cr. 137; Weston v. Charleston, 2 Pet. 449; United States v. Hamilton, 3 Dall. 17; Ex parte Bollman, 4 Cr. 75; Ex parte Kearney, 7 Wheat. 38; Ex parte Crane, 5 Pet. 190; Story's Const. § 1755, 1756; Curtis' Com. § 113. ferred? By the 22d section of the judiciary act, the controversy must What does be concerning a thing of money value; the judgment must be the act final; and the matter in controversy must exceed the sum of two require thousand dollars. By the 25th section, the right to re-examine does not depend on the money value of the thing in controversy, but upon the character of the right in dispute, and the judgment which the State court has pronounced upon it; and it is altogether immaterial whether the right in controversy can or can not be measured by a money standard. (1 St. 84-86; § 22, 25. Barry v. Mercein, 5 How. 120. See Wilson v. Daniel, 3 Dall. 401; 3 Cond. 185; Course v. Stead, 4 Dall. 22; 1 Cond. 217; United States v. Brig Union, 4 Cr. 216; 2 Cond. 91; Smith v. Henry, 3 Pet. 469; Gordon v. Ogden, Id. 33; Hagan v. Foison, 10 Pet. 160; Oliver v. Alexander, 6 Pet. 143; Scott v. Lunt, 6 Pet. 349; Wallen v. Williams, 7 Cr. 278; Fisher v. Cockrell, 5 Pet. 248; Martin v. Hunter, 1 Wheat. 304; 3 Cond. 575; Williams v. Norris, 12 Wheat. 117; 6 Cond. 462.) Bank of United States v. Daniel, 12 How. 52. Rector v. Ashley, U. S. C. C. Dic. T., 1867; 6 Wall, 000. To give appellate jurisdiction under the 25th section, it must appear: First-That some one of the questions stated in the section did What gives arise in the court below; and Secondly, that a decision was appellate actually made thereon by the same court, in the manner required jurisdicby the section. (Shoemaker v. Randell, 10 Pet. 394.) McKinney v. Carroll, 12 How. 70. decision given by That is, that the question was made and the the court below on the very point; or that it given in order to have arrived at the judgment. wood, 5 Cr. 344; Smith v. The State, 6 Cr. 281; Martin v. Hunter, 5 Wheat. 305, 355; Inglee v. Coolidge, 4 Cond. 155; Miller v. Nicholls, 4 Wheat. 311, 315; 4 Cond. 465; Williams v. Norris, 12 Wheat. 117, 124; 6 Cond. 462; Fisher v. Cockerill, 5 Pet. 255, 258; Wilson v. Blackbird Creek Marsh Company, 2 Pet. 245; Satterlee v. Mathewson, 2 Pet. 380, 410; Craig v. Missouri, 4 Pet. tion? Give tho four requisites? Define law and fact? 270-272. What gives the appellate jurisdiction? What jurisdiction can Congress. confer? Can the States superadd any thing? 410; Davis v Packard, 6 Pet. 41, 48; Mayor of New Orleans v. De Armas. Pet. 234.) Crowell v. Randell, 10 Pet. 394-398. After this rull review, these propositions were stated:-1. That some one of the questions (stated in the 25th section) did arise in the State court; 2. That the question was decided by the State court as required in the same section; 3. It is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms ipsissimis verbis; but that it is sufficient if it appear by clear and necessary intendment, that the question must have been raised, and must have been decided in order to have induced the judgment. 4. That it is not sufficient to show that a question might have arisen and been applicable to the case; unless it is further shown on the record, that it did arise, and was applied by the State court in the case. Crowell v. Randell, 10 Pet. 398. Affirmed, Choteam v. Marguerite, 12 How. 510; McKinney v. Carroll, 12 How. 70. See Brightly's Digest, Tit. "ERRORS AND APPEALS," pp. 257–261, and voluminous notes thereon. "LAW AND FACT."-Since the seventh amendment, Congress can not confer upon the Supreme Court authority to grant a new trial by a re-examination of the facts, and tried by a jury, except to redress errors of law. (Parsons v. Bedford, 3 Pet. 447, 449. See Bank of Hamilton v. Dudley, 2 Pet. 492). Curtis' Com. § 114. It is the "case" and not the court which gives the appellate jurisdiction. (Martin v. Hunter, 1 Wheat. 394). Curtis' Com. § 115. Therefore, if the question or the parties give federal jurisdiction, it may be reached by appeal. Id.; Cohens v. Virginia, 6 Wh. 413. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. Id. 416; Curtis' Com. § 116. And see Osborn v. Bank of United States, 9 Wheat. 820, 821; Story's Const. § 1701. If the objects can be attained without excluding the concurrent jurisdiction of the State courts, over cases which existed before, it would seem to be necessary to adopt such a construction as will sustain their concurrent powers. (Teal v. Felton, 12 How. 284, 292.) Curtis' Com. § 121, 123, 124. As to when original jurisdiction is exclusive, see same author, § 129-135, and Martin v. Hunter; Houston v. Moore, 5 Wheat. 1, 12. Congress can not confer jurisdiction upon any courts, but such as exist under the Constitution and laws of the United States, although the State courts may exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the federal courts. Houston v. Moore, 5 Wheat. 24-28, § 135, p. 178. And wherever the law of Congress furnishes the offense, the State law can only be enforced by the authority of Congress, or unless the power remain concurrent. Id. If the jurisdiction be concurrent, the sentence of either court may be pleaded in law. Houston v. Moore, 5 Wheat. 40; 1 Curtis' Com. p. 180. Where Congress has exercised a power over a particular subject given them by the Constitution, it is not competent for State legislation to add to the provisions of Congress upon that subject. The action by Congress seems to exclude State legislation. (Houston v. Moore, 5 Wheat. 1, 22, 23; Prigg v. Pennsylvania, 16 Pet. 608.) Story's Const. 3d ed. p. 615. "WHERE A STATE SHALL BE A PARTY."-That is: 1. Where one In what State is plaintiff, and another State is defendant; 2. Where a three cases State is plaintiff, and an individual, whether a citizen of some other may a State be a party? State or an alien, is defendant. 3. Where a foreign State is plain tiff against one of the United States as defendant. Curtis' Com. $153-157. See Rhode Island v. Massachusetts, 12 Pet. 657; New Jersey v. New York, 5 Pet. 283; Pennsylvania v. The Wheeling & Belmont Bridge Co. 13 Howard, 528; Cherokee Nation v. Georgia, 5 Pet. 1; Ex parte Juan Madrazo, 7 Pet. 627. where must had? [3.] The trial of all crimes, except in cases of im- How and peachment, shall be by jury; and such trial shall be trials be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. 212. “THE TRIAL." (L. Lat. trialio. Exactissima litis contestato, Define coram judice, per duodecem virale exagititio. SPELMAN.)-The term trial? means here, the examination before a competent tribunal, according to the laws of the land, of the facts put in issue upon the indictment or presentment, for the purpose of determining the truth of such issues. United States v. Curtis, 4 Mason, 232; Co. Litt. 1216. And see Burrill's Law Dic., TRIAL; Magna Charta, ch. 29 (9 Henry III.); 2 Inst. 45; 3 Black. Com. 379-381; 4 Black. Com. 349, 350; 2 Kent's Com. Lect. 24, pp. 1-9; 3 Elliot's Debates, 331, 339; De Lolme, B. 1, ch. 13, B. 2, ch. 16; Paley, B. 6, ch. 8; 2 Wilson's Law Lect. P. 2, ch. 6, p. 305; Story's Const. § 1778–1794. "The trial" per pais, or by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the State. (Magna Charta.) Story's Const. $ 1779. "OF ALL CRIMES EXCEPT IN CASES OF IMPEACHMENT."-See What means here? 89. "CRIME" defined, notes 193, 194. Here it means treason, piracy, "crimes" felony, or some offense against the law of nations or an act of the Congress of the United States. And this clause is to be taken subject to the exceptions, in the fifth amendment, as to trials in the land and naval service. The term "crime" here doubtless embraces misdemeanor. In the case of the United States v. Hudson & Goodwin (7 Cranch, 32), it was held that "the legislative authority must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense," before the courts of the United States can exercise jurisdiction over it. This doctrine was affirmed by the case of the United States v. Coolidge et al. (1 Wheaton, 415), and Chief-Justice Marshall, in delivering the opinion of the court in Ex parte Bollman & Swartwout (4 Cranch, Define jury? 260. Does it make the jury the judges of the law? 231-237. Why in the States 95), said: "Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, can not transcend that jurisdiction." And it was in following these cases that Justice McLean held, in United States v. Lancaster (2 McLean's R. 433), that "the federal government has no jurisdiction of offenses at common law. Even in civil cases the federal government follows the rule of the common law as adopted by the States, respectively. It can exercise no criminal jurisdiction which is not given by statute, nor punish any act, criminally, except as the statute provides." The same doctrine is followed in Kitchen v. Strawbridge, 1 Wash. C. C. R., 84; United States v. New Bedford Bridge, 1 Wood & Minot 401; Ex parte Sullivan, 3 Howard, 103; 12 Peters, 654; 4 Dallas, 10, and note; 1 Kent's Com. 354; Sedgwick on Statutory and Constitutional Law, 17; and Wharton, in reviewing this question, says: "However this may be on the merits, the line of recent decisions puts it beyond doubt that the federal courts will not take jurisdiction over any crimes which have not been placed directly under their control by act of Congress." (Am. Criminal Law, 174.) Report on the Impeachment of the President, 75, 76. "BY A JURY" is generally understood to mean, ex vi termini, a trial by a jury of twelve men, impartially selected (in accordance with law), who must unanimously concur in the guilt of the accused before a conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional. (Work v. The State, 2 Ohio St. R. 296; The State v. Cox, 3 English, 436; The State v. The People, 2 Parker C. C. 322, 329, 402, 562; 2 Leading Criminal Cases, 327, and note.) Story's Const. 3d edition, 1779. This does not constitute them judges of the law in criminal cases. United States v. Morris, 1 Curt. C. C. 23, 49; United States v. Shive, Bald. 510; United States v. Battiste, 2 Sumn. 240. And see Townsend v. The State, 2 Blackf. (Ind.), 152; Pierce v. The State, 13 N. H. 536; Commonwealth v. Porter, 10 Met. 263; Commonwealth v. Sherry, Wharton on Homicides, 481. It only embraces those crimes which by former laws and customs had been tried by jury. United States v. Duane, Wall. 106. It did not secure to the conspirators who assassinated the Fresident in Washington city during the war, and while martial law existed in Washington city, the right to trial by jury. The Trial of the Conspirators. This section compared with the fourth, fifth, and sixth amendments. Ex parte Milligan, 4 Wallace, 119; Story's Const. § 1782. The first of these secures a presentment or indictment by a grand jury before there can be a trial by a jury. Id. And for the reason of these amendments in the shape of a Bill of Rights, see 2 Elliot's Debates, 331, 380-427; 1 Id. 119–122; 3 Id. 139–153, 300. where com- 213. IN STATES WHERE COMMITTED.-This was to prevent the defendant from being dragged into a distant State. (2 Elliot's mitted? |