though not exclusive over those between a State and citizens of another State." The finality of this doctrine is that the only exclusive original jurisdiction which the Supreme Court has is in controversies between States; that in all other cases its jurisdiction is concurrent with the inferior courts.

In the first class of cases in which the Supreme Court has original and the inferior courts concurrent jurisdiction, the jurisdiction is limited to the three grades of officers named, to wit: Ambassadors, other public Ministers and Consuls.

In the second class it is limited to cases in which a State shall be a party. This classification necessarily refers to all cases mentioned in the preceding clause of the article in which a State may of right be a party plaintiff or defendant, but it does not refer to suits brought against a "State by its own citizens, or by citizens of other States, or by citizens or subjects of foreign States, even where such suits arise under the Constitution, laws and treaties of the United States, for the reason that the judicial power of the United States does not extend to suits of individuals against States."'101 The original jurisdiction conferred by this clause upon the Supreme Court over controversies in which a State is a party is not affected by the question whether the State is plaintiff or defendant, and whether the United States is a party to the controversy is determined by the effect of the judgment or decree which may be rendered, and not by the merely nominal party on the record.102

In Cohens v. Virginia,103 Marshall, C. J., said: "The original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the Federal courts; not to those cases in which an original suit might not be instituted in a Federal court. Of the last description is every case between a State and its citizens, and perhaps every case

101 United States v. Texas, 143 U. S., 621, 643, 644. 102 Minnesota v. Hitchcock, 185 U. S., 383, 387, 388. 103 6 Wheaton, 398, 399.

in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction. In every other case, that is, in every case to which the judicial power extends, and in which original jurisdiction is not expressly given, that judicial power shall be exercised in the appellate, and only in the appellate form."

As to what constitutes a case in which "State is a party," so as to bring it within this provision of the Constitution, the original jurisdiction of the Supreme Court in the following cases has been sustained:

First. Where a bridge was built over a navigable river between two States and obstructed navigation and thereby an injury was done to one of the States for which the law afforded no adequate remedy, the Supreme Court of the United States would take original jurisdiction in a suit brought by one State against the other for relief in the matter.104

Second. A State may bring a suit in the Supreme Court of the United States when the health and comfort of its people are threatened.105

Third. One State may enjoin another in the Supreme Court from destroying the source of its water supply.108 Fourth: A State may forbid a corporation by injunction in the Supreme Court from permitting its works to discharge noxious gases on its territory.106a

In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such regulations as the Congress shall make.

Unlike the preceding provision relative to the original jurisdiction of the Supreme Court, this provision is very broad and it is through this source that most of the cases find their way to the Supreme Court of the United

104 Penna. v. Wheeling Bridge Co., 13 Howard, 563.

105 Missouri v. Illinois & Chicago District, 180 U. S., 208, 241.

106 Kansas v. Colorado, 185 U. S., 125, 145.

106a Georgia v. Tennessee Copper Co., 206 U. S., 237.

States. Appellate jurisdiction is the power to hear and determine a cause which has been previously heard in an inferior tribunal.

In Martin v. Hunter,107 Judge Story remarked, "The appellate jurisdiction is given by the Constitution to the Supreme Court in all cases where it has not original jurisdiction; subject, however, to such exceptions and regulations as Congress may prescribe. It is, therefore, capable of embracing every case enumerated in the Constitution, which is not exclusively to be decided by way of original jurisdiction. But the exercise of this jurisdiction is far from being limited by the terms of the Constitution to the Supreme Court. Congress can without doubt create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction." It does not come within the purview of this work to review the various congressional enactments upon this subject, but the student is referred to them as having an important bearing upon the question. In United States v. Coe, Chief Justice Fuller approved the language of Chief Justice Ellsworth in 3 Dallas, 321, where he said, "An appeal is a process of civil law origin and removes a cause entirely; subjecting the fact, as well as the law, to a review and re-trial; but a writ of error is a process of common law and it removes nothing for examination but the law." Also, the "judicial action of all inferior courts established by Congress may, in accordance with the Constitution, be subjected to the appellate jurisdiction of the Supreme Court."108 The appellate power is conferred by the Constitution, but is regulated by Congress.100

Appellate Jurisdiction of the Supreme Court over State Courts. There is no express provision in the Constitution conferring appellate jurisdiction on the Supreme Court over the judgments of the respective State courts of final resort. If such power exists it is because it is fairly implied from some provision of the Constitution and not from any express language of that instrument. This

1071 Wheaton, 304, 337, 338.

108 155 U. S., 76, 83-86.

109 6 Cranch, 314.

subject was most ably discussed by Mr. Hamilton,110 from whom the following extract is taken:

"Here another question occurs; what relation would subsist between the National and State courts in these instances of concurrent jurisdiction? I answer, that an appeal would certainly lie from the latter to the Supreme Court of the United States. The Constitution, in direct terms, gives an appellate jurisdiction to the Supreme Court in all the enumerated cases of the Federal cognizance, in which it is not to have an original one; without a single expression to confine its operation to the inferior Federal courts. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. From this circumstance, and from the reason of the thing, it ought to be construed to extend to the State tribunals. Either this must be the case, or the local courts must be excluded from a concurrent jurisdiction in matters of national concern, else the judiciary authority of the Union may be eluded at the pleasure of every plaintiff or prosecutor. Neither of these consequences ought, without evident necessity, to be involved; the latter would be entirely inadmissible, as it would defeat some of the most important and avowed purposes of the proposed government, and would essentially embarrass its measures. Nor do I perceive any foundation for such a supposition. Agreeably to the remark already made, the National and State systems are to be regarded as one whole. The courts of the latter will of course be natural auxiliaries to the execution of the laws of the Union, and an appeal from them will as naturally lie to that tribunal, which is destined to unite and assimilate the principles of national justice and the rules of national decision. The evident aim of the plan of the Convention is, that all the causes of the specified classes shall, for weighty public reasons, receive their original or final determination in the courts of the Union. To confine, therefore, the general expressions which give appellate jurisdiction to the Supreme Court to appeals from the subordinate Federal courts, instead of allowing their extension to the State courts, would be to abridge the lati110 The Federalist, No. 82.

tude of the terms, in subversion of the intent, contrary to every sound rule of interpretation."'111

Mr. Justice Curtis in discussing this question said: "Although the Constitution of the United States has not in terms granted to the Supreme Court appellate power, in reference to courts of the several States nevertheless such a power exists. It is only an implied power, but its implication is necessary, and the reasons for it are satisfactory. Its source will be found in the second clause of the sixth article of the Constitution. This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land." This appellate jurisdiction extends both to law and fact.112

The jurisdiction which the Supreme Court has on ap

111 Mr. Hamilton was also of the opinion that an appeal would also lie from the State Court to the inferior Federal Courts and on that subject observed: "But could an appeal be made to lie from the State Court to the subordinate Federal judicatories? This is another of the questions which have been raised, and of greater difficulty than the former. The following considerations countenance the affirmative. The plan of the Convention, in the first place, authorizes the National Legislature 'to contsitute tribunals inferior to the Supreme Court.' It declares in the next place, that 'the judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress shall ordain and establish;' and it then proceeds to enumerate the cases, to which this judicial power shall extend. It afterwards divides the jurisdiction of the Supreme Court into original and appellate, but gives no definition to that of the subordinate courts. The only outlines described for them, are, that they be 'inferior to the Supreme Court, and that they shall not exceed the specified limits of the Federal Judiciary. Whether their authority shall be original or appellate, or both, is not declared. All this seems to be left to the discretion of the Legislature. And this being the case, I perceive at present no impediment to the establishment of an appeal from the State courts, to the subordinate national tribunals, and many advantages attending the power of doing it may be imagined. It would diminish the motives to the multiplication of Federal courts, and would admit of arrangements calculated to contract the appellate jurisdiction of the Supreme Court. The State tribunals, may then be left with a more entire charge of Federal causes; and appeals in most cases in which they may be deemed proper, instead of being carried to the Supreme Court, may be made to lie from the State courts, to district courts of the Union." The Federalist, No. 82.

112 Curtis on Jurisdiction of U. S. Courts, 21, 27.