PART 1. of the legislature of Georgia. His defense before the state court was, that the law of Georgia under which he was indicted, was repugnant to the treaties between the United States and Georgia, and also to the provisions of the act of congress of March, 1802, regulating trade and intercourse with the Indian tribes, and was therefore void.

The court considered its jurisdiction over the case too clear for controversy. The indictment and plea drew in question the validity of the treaties relied on by the plaintiff in error, or, at least, their construction; and the decision had been, if not against their validity, "against the right, privilege, or exemption specially set up or claimed under them." They also drew into question the validity of a statute of the State of Georgia, "on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision had been in favor of its validity."

The case of Smith v. Maryland (6 Cranch, 286), involved the question, whether the confiscation of the property of British subjects, under a law of the State of Maryland, was complete, before the treaty of peace of 1783, between the United States and Great Britain, so as to render the 6th article of the treaty, protecting such property if not actually confiscated, inapplicable to the case: and it was held that the appellate jurisdiction of the supreme court extended to it.

In the case of Owings v. Norwood's Lessee (5 Cranch, 344), in which the defendant in an action of ejectment set up an outstanding title in a British subject, which he contended was protected by the treaty of 1794, and that the title was therefore out of the plaintiff, it was held that a writ of error would not lie to remove the decision of the state court against the title thus set up. The language of the judiciary act

must be restrained by that of the constitution; ac- CHAP. 4. cording to which the case must arise under a treaty, &c. But in this case no title was claimed by either party under the treaty, nor could the title of either party be protected by it; it was not a case therefore arising under a treaty.

cient if the

claimed is

But it was further remarked by the court, that It is suffiwherever a treaty of the United States is drawn in right question, whether directly or incidentally; whether protected by a treaty, a right claimed grows out of, or is protected by, the &c. treaty, the appellate power of the court extends to the case.

In the case of The City of New Orleans v. De Armas et al. (9 Peters, 224), on a motion to dismiss a writ of error to the state court for want of jurisdiction, it was insisted by the counsel for the defendants in error, that a case could be considered as arising under the constitution or a treaty, only when the right or title claimed must originate in, or be created by, the constitution or treaty. But though the writ of error was dismissed for want of jurisdiction on other accounts, the court, in accordance with what was said in the case last above cited, held the principle thus laid down by the counsel to be too narrow. Such a construction of the constitution and of the judicial act, said Chief Justice MARSHALL, would defeat the obvious purpose of both. The language of both extends the jurisdiction of this court to rights protected by the constitution, treaties, or laws of the United States, from whatever source those rights may spring.

In the case of Wallace v. Parker (6 Peters, 680), on appeal from the supreme court of Ohio, it appearing on the face of the record that there had been drawn in question at the trial, the construction of the act of cession by Virginia; of the resolution of congress

PART 1. accepting the deed of cession; and of the acts of congress prolonging the time for completing the title to lands within the Virginia military reservation (of which the lands in question formed a part); and that the decision of the state court has been against the title set up under the acts of congress, it was held that the supreme court had jurisdiction.

The right must be de

the consti

But the right or title claimed must be one dependpendent on ing on the constitution, laws or treaties of the United tution, &c. States. It is not sufficient that it was originally derived from one of these sources, unless the validity of such original grant is drawn into controversy. Thus, in a suit between parties claiming title to lands under separate patents therefor, granted by a state deriving its title thereto from an act of congress, the supreme court has no jurisdiction under the 25th section, to review the judgment of the state court in favor of one of the claimants, both parties admitting the title of the state, and the act of congress, therefore, not having been drawn in question. Shaffer v. Scuddy, 19 Howard, 16; see to the like effect, Mich. RR. Co. v. Mich. S. RR. Co., id., 379; Burke v. Gaines, id., 338; Wyman v. Morris, id., 3.

Denial by state court,

for remo

the act.

If a state court deny or disregard a petition for the of petition removal of a cause to the circuit court, and proceed to val within judgment, and its judgment is affirmed in the highest court of the state, this is a case within the 25th section-the right of removal being given by a law of the United States. Gordon v. Longest, 16 Peters, 97; Kanouse v. Martin, 15 Howard, 198.

Alleged repugnancy

to state con

stitution,

It has been imagined that the repugnancy of a of state law state law to some restrictive provision of the state constitution, as, for example, a clause forbidding the taking of private property for public use without just compensation, would constitute a case for the exercise by the supreme court, of the jurisdiction con

not within the act.

ferred by the 25th section of the judiciary act. But CHAP. 4. the contrary has been repeatedly decided. Nor, in the case supposed, can the court exercise jurisdiction in virtue of the like inhibition contained in the 5th article of the amendments to the constitution of the United States. This is a restraint imposed on congress, not on the state legislatures. Withers v. Buckley, 2 Howard, 84, citing other cases.

See, also, relative to the subject, Byrne v. The State of Missouri, 8 Peters, 40; Crowell v. Randell, 10 Peters, 368; M'Bride v. Hoey, 11 Peters, 167; Choteau v. Marguerite, 12 Peters, 107; The Ocean Insurance Company v. Polleys, 13 Peters, 157.1

There are other decisions affecting this question, which will be noticed in a subsequent part of this work.2

'In the case of Crowell v. Randell, the antecedent cases relating to this point are reviewed; and in the subsequent case of Choteau v. Marguerite (12 Peters, 507), the court refer to it as a case in which the law is laid down as they wish it to be universally understood.

In the case of George Holmes v. Silas H. Jennison, Governor of the State of Vermont, and John Starkweather, Sheriff of the County of Washington, in the said state, and their successors in office (14 Peters, 540), the plaintiff in error had been arrested in the State of Vermont, on a warrant or order issued by Governor Jennison to Starkweather, setting forth that an indictment had been found by a grand jury of the district of Quebec, in the British Province of Lower Canada, against the said Holmes, for the crime of murder, alleged to have been committed within the district of Quebec, and that as it was fit and expedient that he should be made amenable to the laws of the country where the offense was charged to have been committed, the said Starkweather was commanded to convey the body of the said Holmes to some convenient place on the confines of the State of Vermont, and the Province of Lower Canada, and there deliver him to such persons as might be empowered by the Canadian authorities to receive him; to the end that he might be there dealt with as to law and justice appertained. On the application of Holmes a writ of habeas corpus was issued by the supreme court of the State of Vermont, commanding the said Starkweather to bring into court the body of the said Holmes; and in return to this writ the warrant or order of the governor of the state, as above described, was set forth as the cause of the said arrest and detention. Holmes having been brought

PART 1.

matter in

8. Several decisions have been made with respect When the to the provision contained in the judicial act of 1789, and contained also in the act of March 3, 1803, limiting writs of error and appeals from the circuit to the

contro

versy may

be said to

exceed $2,000.

Proceed

ings on

into court, in obedience to the writ, the judgment of the court, on the motion for his discharge, was in the following words: "Wherefore, after a full hearing of the parties, and all and singular the premises aforesaid being seen and fully examined, if is adjudged by the court here that the aforesaid cause of detention and imprisonment of the said George Holmes is good and sufficient in law; and that he be remanded and held accordingly, under the process set forth in the return to this writ of habeas corpus."

For the re-examination of this decision, as a final judgment of the highest court of a state, in a suit in which was drawn in question the validity of an authority exercised under a state, on the ground of such authority being repugnant to the constitution of the United States, and in which the decision was in favor of such validity-a writ of error was brought to the supreme court.

Mr. Van Ness, by whom the case was very elaborately and ably argued for the plaintiff, insisted, first, that the supreme court had jurisdiction of the case; and second, that the State of Vermont had no right or power to deliver up Holmes, such authority belonging, from its nature, to the national government.

Upon the question of jurisdiction, the court was equally divided; the Chief Justice, and Justices STORY, MCLEAN, and WAYNE being of opinion that the jurisdiction of the court extended to the case; Justices THOMPSON, BALDWIN, BARBOUR and CATRON being of the opposite opinion, and Mr. Justice M'KINLEY being absent. No authoritative judgment could, therefore, be pronounced, either upon the question of jurisdiction or upon the merits. The chief justice, however, in delivering the opinion of himself and his three brethren who concurred with him, considered it necessary to enter elaborately into the nature of the authority exercised by the governor of Vermont, and to show (as he has. I think, very satisfactorily done) that it belongs, not to the states, but to the nation, as a power pertaining to foreign intercourse, and which may be called into action either by law or by treaty.

The question of jurisdiction was one of great nicety. The case is highly instructive, and should be attentively read

Treaties have since been entered into by the United States, with Great Britain and France, containing mutual stipulations for the surrender of fugitives from justice charged with great crimes.

One of the questions on which the jurisdiction of the court was supposed to depend was, whether a proceeding in a state court on a writ of