have jurisdiction the Supreme Court is given appellate jurisdiction under such exceptions as Congress may determine. The statutory provisions as to the appellate jurisdiction of the Supreme Court will be taken up under the subject of "Federal Procedure." SECTION 59. APPELLATE JURISDICTION OVER STATE COURTS. 94 93 It has been already shown stated in Chapter I, of this book, that the Supreme Court of the United States has a certain appellate jurisdiction over the State courts. This right was asserted by the Supreme Court in the important cases of Martin vs. Hunter's Lessee and Cohens vs. Virginia. It was held in these cases that while this right of appeal is not found in express terms in any part of the Constitution, it is given by necessary implication from the general provisions as to judicial power of the United States. The very fact that extensive appellate jurisdiction is given by the Constitution to the Supreme Court, while the creation of any inferior Federal tribunals at all, is left to the discretion of Congress, shows that the Constitutional Convention must have contemplated appellate authority over the State courts by the Supreme Federal Court. Again the lack of such authority in cases involving Federal questions would permit of conflicting decisions in every State and create a confusion in the laws of the country which could not be held to be permissible under the provisions of the Constitution. This appellate jurisdiction of the Supreme Court over the decisions by State courts could be extended by Congress, over all cases where original jurisdiction could have been given to the inferior Federal courts. As a matter of fact, this appellate jurisdiction as regulated by Federal statutes is very limited. The ex 1 Wheaton, 304. 6 Wheaton, 264. tent of this jurisdiction will be fully discussed under the subject "Federal Procedure," but the general rule will be here briefly stated. A final judgment or decree in any suit in the highest court of a State in which a decision in the suit can be had, where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held, or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set apart or claimed by either party, under such Constitution, treaty, statute, commission or authority; may be re-examined and reversed or affirmed in the Supreme Court of the United States upon writ of error. The writ has the same effect as if the judgment or decree complained of had been rendered or passed in a court of the United States. The Supreme Court may reverse, modify or affirm the judgment or decree of such State court, and may at their discretion, award execution or remand the same to the court from which it was removed by the writ.95 SECTION 60. POWER TO DECLARE ACTS OF CONGRESS UNCONSTITUTIONAL. The most noticeable characteristic of the judicial 25 Rev. Stats., Section 709. See Bacon vs. State of Texas, 163 Orleans vs. De Armos, 9 Peters, 224; Carson vs. Dunham, 121 U. S., 421; McKenna vs. Simpson, 129 U. S., 506. department of the United States Government, and the feature of the United States Constitution which has attracted the most attention among foreign students and statesmen, is the right of United States judges to declare unconstitutional acts of the legislative department. Such a power has never been possessed by the courts of any European Government." The United States courts do not exercise this power of declaring Acts of Congress unconstitutional directly, by setting aside the act when passed by the legislative body, but only indirectly, when the constitutionality of the act becomes involved, in the decision of some question, which comes before them in the regular course of legal procedure. During the early years of the United States the Supreme Court seemed to have been a little doubtful of this power, or at least a little afraid to use it. In Hylton vs. United States "7 the Court refused to pass on this question, saying: "It is unnecessary at this time for me to determine whether this Court constitutionally possesses the power to declare an Act of Congress void, on the ground of its being made contrary to, and in violation of the Constitution, but if the Court have such power, I am free to declare that I will never exercise it but in a very clear case." In Marbury vs. Madison," the question came before the Court, in a manner where it could not be avoided, and in the decision in the case (among the most important ever rendered by the Supreme Court), the right of the courts to declare an Act of Congress in opposition to the Constitution, and therefore void, The theory has been advanced, but on slim foundations, that tutional Legislation" and Howe's "Studies in the Civil Law.". 97 3 Dallas, 171. 98 1 Cranch, 137. was asserted. Mr. Chief Justice Marshall delivered the opinion of the court, which was in part, as follows: "So if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the Court must either decide that case conformably to the law, disregarding the Constitution, or comformably to the Constitution, disregarding the law, the Court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. "If then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the Legislature, the Constitution, and not any such ordinary act, must govern the case to which they both apply.' This decision in Marbury vs. Madison, has since been taken as decisive of the law on this point. Since this case the right of the United States courts to declare Acts of Congress unconstitutional has never been disputed, although the presumption is still in favor of the constitutionality of any statute," the legislative body being supposed to act within scope of its authority,100 Such a claim on the part of any court as that laid down in the case of Marbury vs. Madison was up to the time of this decision without precedent, either in the national history of the United States, or in that of any foreign country. The decision in Mar "Hylton vs. United States, 3 Dal las, 171; Cooper vs. Telfair, 4 Dallas, 14, 19; Township of Pine Grove vs. Talcott, 19 Wallace, 666, 673; Munn vs. Illinois, 94 U. S., 123; Sinking Fund Cases, 99 U. S., 700, 718; County of Livingston vs. Darlington, 101 U. S., 40; Ogden vs. Saunders, 12 Wheaton, 213, 270; The Legal Tender Cases, 12 Wallace, 457; Powell vs. Pennsylvania, 127 U. S. 678, 684, Nicol vs. Ames, 173 U. S., 509, 515; Parsons vs. Bedford, 3 Peters, 433, 448; Craig vs. Missouri, 4 Peters, 410, 744; Butler vs. Pennsylvania, 10 Howard, 402, 415; The Mayor vs. Cooper, 6 Wallace, 251. 100 United States vs. Harris, 106 U. S., 629. bury vs. Madison had been foreshadowed, however, in the judiciary history of the individual States. In several of these States acts of the State Legislature had been declared unconstitutional by the State courts, prior to the adoption of the Federal Constitution. The most famous instances are the cases of Rutgers vs. Waddington,101 in New York, and Trevett vs. Weeden 102 in Rhode Island.103 101 Rutgers vs. Waddington; May or's Court, City of New York, Aug. 27, 1784. Published in pamphlet form, New York, by Samuel Landon, 1784. "The action is grounded on a statute of this State, entitled 'an Act for granting a more effectual relief in cases of certain trespasses,' passed the 17th day of March, 1783; and the declaration charges, 1st, the substance of the Act, viz., "That it shall and may be lawful for any person or persons, who are, or were, inhabitants of this State, and who by reasons, of the invasions of the enemy, left his, her or their houses or places of abode to bring an action of trespass against any person or persons who may have occupied, injured, or destroyed his, her, or their estate, either real or personal, within the power of the enemy.' 102 Decided in Superior Court of Judicature of Rhode Island in 1786. This case involved the constitutionality of an act which made it a criminal offense to refuse to receive paper money, not only in payment of debts but also in payment of any property offered for sale. 103 See also Den d. Bayard and Wife, vs. Singleton, Court of Conference, of North Carolina, 1767. 1 Martin, N. C., 42. |