PART 1. appellate power as is not comprehended within it. See also, in illustration of this principle, the case of Clarke v. Bazadone (1 Cranch, 212), in which it was held that a writ of error did not lie to the supreme court from a court of the United States for the territory northwest of the Ohio, because it had not been authorized by congress. Does not extend to criminal cases. From the judgments of state courts. 25th Sec tion held constitutional. 2. In conformity with this principle, it has been decided that the supreme court possesses no appellate jurisdiction in any form, from the circuit courts in criminal cases; no such power having been confided to it by congress. United States v. Moore, 3 Cranch, 159; ex parte Kearney, 7 Wheat., 38; ex parte Watkins, 3 Peters, 193.1 3. In Martin v. Hunter (1 Wheat., 304), the constitutionality of the 25th section of the judicial act, providing for the re-examination by the supreme court in certain cases of the judgments of state courts,2 was strenuously drawn in question by the counsel for the defendant in error, upon the ground that the appellate power of the court, was, according to the true construction of the constitution, limited to proceedings in the inferior national judicatories. But the validity of the law was most elaborately and ably vindicated, and fully maintained by the supreme court. The appellate jurisdiction of the court, in this form, had before, as it has since, been repeatedly exercised, and is now, especially after the ample and explicit confirmation of it in Cohens v. Virginia (6 Wheat., 264), to be regarded as definitely settled. 1 The power exercised by the supreme court in cases brought before it from the circuit courts, by certificates of opinions opposed, and which extends as well to criminal as to civil cases, is sui generis, being advisory rather than appellate. * Vide supra, p. 23. party. 4. In this last mentioned case of Cohens v. Virginia, CHAP. 4. it was also decided, that the circumstance of a state It matters not though being a party (this case being a criminal prosecution a state be a against a citizen of Virginia for a violation of a law of that state), constituted no objection to the exercise of this appellate jurisdiction; the validity of a statute of a state being drawn in question on the ground of its repugnancy to a law of the United States, and the decision having been in favor of its validity; and no exception of cases of this description having been made by congress. In this case the whole subject of the judicial authority of the Union over the state judicatories, was canvassed by the chief justice in a most masterly and instructive manner. tended to It is proper here also, somewhat more explicitly to May be exadd, that although the supreme court can exercise cases of original juoriginal jurisdiction only in those two descriptions of risdiction. cases in which it has in terms been confided to it by the constitution, and, although it is declared by the constitution that in all the other cases, it shall have appellate jurisdiction, yet that there is no constitutional restraint upon its exercise of appellate jurisdiction in any case to which the judicial power of the United States extends, though it should be a case falling within its original jurisdiction. Cohens v. Virginia, 6 Wheat., 264. ments are 5. By the judicial act, as already shown, it is only What judg the final judgments and decrees of the courts of the final. states, and of the circuit courts of the United States, which are subject to re-examination in the supreme court. In reference to this limitation it has been determined, that a writ of error will not lie from a decree1 1 This was before the substitution of an appeal insteɛd of a writ of error in cases in equity. Vide supra, p. 20. PART 1. in a circuit court upon a bill in equity, overruling a plea, and ordering the defendant to answer the bill. Rutherford v. Fisher, 4 Dallas, 22. Nor does an appeal lie from an interlocutory decree dissolving an injunction. Young v. Grundy, 6 Cranch, 51. Nor from a decree affirming a decretal order of an inferior court, refusing to dissolve an injunction. Gibbons v. Ogden, 6 Wheat., 448. A decree in chancery directing a further inquiry as to matter of law or fact is not final. To warrant an appeal it must finally decide and dispose of the whole merits of the cause, so that it will not be necessary to bring the cause again before the court for its final decision. Beebe et al. v. Russell, 19 Howard, 283. In this case the rule was fully discussed, and, as therein laid down, was reasserted in Farrely v. Woodfok, id., 288; see also Mordecai v. Lindsay, id., 199. Nor, for want of finality, will a writ of error lie to reverse an award of a writ of restitution in an action of ejectment. Smith's Lessee v. Trabue's heirs, 9 Peters, 4. Nor upon an order of the circuit court quashing an inquisition of damages under the charter of a canal company. Chesapeake & Ohio Canal Co. v. Union Bank, 8 Peters, 259. But a decree for the sale of mortgaged property, upon a bill to foreclose, is a final decree from which an appeal lies to the supreme court. Ray v. Law, 3 Cranch, 179. A judgment of the highest court of a State reversing a judgment of an inferior court, and awarding a venire de novo is not a final judgment in the sense in which that term is used in the 25th section of the judicial act. Houston v. Moore, 3 Wheat., 433. Nor a judgment of a court of appeals reversing a judgment of an inferior court, and remanding the cause for further proceedings. Brown v. The Bank of Florida, 4 Howard, 465; Pepper v. Dunlap, 5 id., 51. In the case of Martin v. Hunter's Lessee (1 Wheat., 304), the CHAP. 4. court of appeals of Virginia having declined to obey the mandate of the supreme court of the United States, issued to such state court upon the reversal by the supreme court of a judgment rendered therein, it was held that such refusal was a final judgment, upon which a writ of error would lie. In the case of Weston et al. v. The City Council of Charleston (2 Peters, 449), the defendants, under a general authority by law to tax the property owned and possessed within the city of Charleston, had imposed a tax upon certain property, supposed by the owners to be protected from taxation under the authority of a state, by the constitution and laws of the United States. Upon application to an inferior state court, a prohibition was granted to restrain the defendants from levying the tax. The defendants, therefore, removed the proceeding to the highest court in the state, and obtained a reversal of the order of the inferior court, awarding the prohibition. Upon a writ of error from the supreme court of the United States, to re-examine this latter decision, the question arose whether this was a "final judgment " according to the true interpretation of these terms in this section of the judicial act and it was held by a majority of the court that it was. was applicable to those judgments and decrees only, in which the right was finally decided, and could never again be litigated between the parties, the provision of this section would be confined within much narrower limits than the words import, or than congress intended. Judgments in actions of ejectment, and decrees in chancery dismissing a bill without prejudice, however deeply they might affect the rights protected by the constitution, laws, or treaties of the United States, would not be subject to the revision If the term "final" PART 1. of this court. A prohibition might issue restraining a collector from collecting duties, and this court could not revise and correct the judgment. The word suit. 66 final," must be understood in the section under consideration, as applying to all judgments and decrees which determine the particular cause: and it must, in this sense be final as to all the parties to the record; otherwise the writ of error will be dismissed. The United States v. Girault et al., 11 Howard, 22; see also Van Ness v. Van Ness, 6 id., 62; Perkins v. Fourniquet et al., id., 206; Pepper v. Dunlap, 5 id., 51; Miners' Bank v. The United States, id., 213; Listenddorfer v. Webb, 20 id., 170; Holcombe v. McKussick, id., 552; McCargo v. Chapman, id., 555. What is a 6. But the judgment or decree of the state court must be in a "suit," and the question has arisen what constitutes a suit within the purview of the act. It arose in the case last above cited, and the proceeding in the state court therein described was held to be a suit. The term "suit," say the court, is a very comprehensive one, and is understood to apply to any proceeding in a court of justice, by which an individual pursues therein, that remedy which the law affords him. The modes of proceeding may be various, but if a right is litigated between the parties in a court of justice, the proceeding by which the decision of the court is sought, is a suit. The question arose, also, and was elaborately discussed in the case of Holmes v. Jennison et al. (14 Peters, 540), which came before the court on a writ of error to reverse the judgment of a state court on a writ of habeas corpus. Upon the question of jurisdiction the court was equally divided. But the chief justice, in pronouncing his own opinion and that of three of the associate justices assigned very satisfactory reasons for holding the proceeding to be a suit, and the remaining members |