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CHAPTER VI.

THE MAINTENANCE OF FEDERAL SUPREMACY BY WRITS OF ERROR FROM THE FEDERAL SUPREME COURT TO STATE COURTS.

§ 62. Writs of Error to State Courts.

A corollary that follows from the supremacy of federal law is that when a federal right, privilege or immunity is set up as a defense or authority for an act, opportunity shall exist for a final determination of this point in the federal courts. As has been earlier pointed out, the original Judiciary Act, passed in the first year of the Constitution, in its famous twenty-fifth section, provided that a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision of the suit could 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 where is drawn in question the validity 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 such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission may be re-examined and reversed or affirmed in the Supreme Court of the United States upon writ of error." In order that this appellate jurisdiction may be effectual this section also provides that instead of remanding the cause to the state court for a final decision therein, the Supreme Court may at their discretion, if the cause has been once before remanded, proceed to a final disposition of the same and award execution.

These provisions have remained substantially unchanged since their enactment to the present day.

It will be observed that provision for writ of error from the federal Supreme Court is made only for those cases in which the judgment in the state tribunals is adverse to the alleged federal right, privilege or immunity. Where the state decision is favorable there is, of course, no need, based upon the principle of federal supremacy, for a federal review.

§ 63. Martin v. Hunter's Lessee.

The constitutionality of this section of the Judiciary Act was affirmed by the Supreme Court in 1816 in Martin v. Hunter's Lessee. This was a writ of error to the Court of Appeals of the State of Virginia, founded upon a refusal of that court to obey a mandate of the federal Supreme Court, the state court, in its. judgment, saying: "The court is unanimously of opinion that the appellate power of the Supreme Court of the United States does not extend to this court under a sound construction of the Constitution of the United States; that so much of the twentyfifth section of the Act of Congress, to establish the judicial courts of the United States, as extends the appellate jurisdiction of the Supreme Court to this court, is not in performance of the Constitution of the United States. That the writ of error in this case was improvidently allowed under the authority of that act; that the proceedings thereon in the Supreme Court were coram non judice in relation to this court, and that obedience to its mandate be declined by the court."

This position of the state court, the federal court, in one of the weightiest of its decisions, declared to be erroneous, the argument being that, though not granted in express terms, the very nature of the federal authority provided for by the Constitution makes this appellate power a necessary part of the general judicial power granted to the National Government.

§ 64. Cohens v. Virginia.

The appellate power of the federal Supreme Court under the twenty-fifth section of the Judiciary Act was again contested in 11 Wh. 304; 4 L. ed. 97.

Cohens v. Virginia, decided in 1821, Chief Justice Marshall rendering the opinion of the court. This was a criminal case and the first point made was that a case in which a State appeared as defendant in error was a suit against a State and as such forbidden by the Eleventh Amendment. The court held, however, that this Amendment has reference only to the suits in law or equity commenced or prosecuted against one of the United States by citizens of another State, and not to suits originally begun by a State. "It is, then, the opinion of the court," declared Marshall, that the defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the State."

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Secondly, the State renewed its claim that in no case might the appellate jurisdiction of the Supreme Court be constitutionally exercised over the judgment of a state court. To this Marshall replied that the nature of the Federal Union provided · by the Constitution and intended by its framers and adopters, required the exercise of the power. "We think," he declared, that in a government acknowledgedly supreme, with respect to objects of vital interest to the Nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the state tribunals which may contravene the Constitution or laws of the United States, is, we believe, essential to the attainment of those objects."

To the contention made by the State that to grant the appellate jurisdiction in question would be to render possible a complete consolidation of federal and state judicial power, Marshall replied: "A complete consolidation of the States so far as respects the judicial power would authorize the legislature to confer on the federal courts appellate jurisdiction from the state courts in all 26 Wh. 264; 5 L. ed. 257.

cases whatsoever. The distinction between such a power, and that of giving appellate jurisdiction in a few special cases, in the decision of which the Nation takes an interest, is too obvious not to be perceived by all."

Since Cohens v. Virginia, the constitutional power of the federal Supreme Court to revise by writ of error decisions of state courts coming within the provisions of the twenty-fifth section of the Judiciary Act has been but once seriously questioned, and then under the strong stimulus of objection to the Fugitive Slave Law of 1850.3

3 Ableman v. Booth (21 How. 506; 16 L. ed. 169). See ante, p. 84.

CHAPTER VII.

THE MAINTENANCE OF FEDERAL SUPREMACY BY THE REMOVAL OF SUITS FROM STATE TO FEDERAL COURTS.

§ 65. Right of Removal.

A corollary which necessarily follows from the doctrine of federal supremacy is that no State can declare criminal and punish as such acts authorized by federal law. Since the Civil War this has not been directly denied by the States, but it has been strenuously asserted by them that when an offense has been committed against their own peace, and the one committing it has been apprehended and brought to trial before their own courts, he is not entitled to have his case removed at once to the federal courts simply by setting up as a defense that his act was done in pursuance of an authority delegated him by the General Government. The right to set up this defense has not been denied by the States, nor have they claimed that, should the decision of their courts be adverse to him upon this point, he may not take an appeal from their highest tribunals to the Supreme Court of the United States. But they have asserted that when an act has been committed which is criminal by their laws, it is, primarily, an offense against their peace, and as such cognizable only in their own courts, and, therefore, that though, as has been just said, a right of appeal from their highest courts to the United States Supreme Court upon the questions of federal authority must be allowed, the trial of the offense may not, as a matter of right, be removed by the accused from the state court in which it is begun to one of the lower federal courts.

These lower federal courts, as is well known, possess only those powers which have been granted to them by act of Congress. By the original Judiciary Act1 Congress did not, as it might have, endow these tribunals with a general jurisdiction in proceedings

11 Stat. at L. 73.

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