This reasonable construction is rendered necessary by other considerations.

to such cases; but this was not the sole, nor the diction is given because a state is a party; and to greatest, object for which this department was include in the second, those in which jurisdiction is created. A more important, a much more interest-given, because the case arises under the constituing, object was the preservation of the constitution tion or a law. and laws of the United States, so far as they can be preserved by judicial authority, and therefore the jurisdiction of the courts of the union, was expressly extended to all cases arising under that constitu. tion and those laws. If the constitution or laws may be violated by proceedings instituted by a state, against its own citizens, and if that violation may be such as essentially to affect the constitution and the laws, such as to arrest the progress of govern. ment in its constitutional course, why should these cases be excepted from that provison which expressly extends the judicial power of the union to all cases arising under the constitution and laws? After bestowing on this subject the most attentive consideration, the court can perceive no reason, founded on the character of the parties, for introducing an exception which the constitution has not made; and we think that the judicial power, as originally given, extends to all cases arising under the constitution or a law of the United States whoever may the parties.

It has been also contended that this jurisdiction, if given, is original, and cannot be exercised in the appellate form,

That the constitution or a law of the United States is involved in a case, and makes a part of it, may appear in the progress of a cause, in which the courts of the union, but for that circumstance, would have no jurisdiction, and which, of conse quence, could not originate in the supreme court. In such a case the jurisdiction can be exercised only in its appellate form. To deny its exercise in this form is to deny its existence, and would be to construe a clause dividing the power of the supreme court in such manner as, in a considerable degree, to defeat the power itself. All must perceive that this construction can be justified only where it is absolutely necessary. We do not think the article under consideration, presents that necessity.

It is observable, that in this distributive clause, no negative words are introduced. This observation is not made for the purpose of contending that the legislature may "apportion the judicial power between the supreme and inferior courts acording to its will." That would be, as was said by this court in the case of Marbury vs. Madison, to render the distributive clause "mere surplusage," to make it "form without substance." This cannot, there fore, be the true construction of the article.

The words of the constitution are "in all cases affecting ambassadors, or other public ministers, and consuls, and those in which a state shall be party, the supreme court shall have original juris. diction." In all the other cases, before mentioned, the supreme court shall have appellate jurisdic-tribution of the power previously granted, theiz,

tion.

This distinction between original and appellate jurisdiction excludes, we are told, in all cases, the exercise of the one where the other is given.

But, although the absence of negative words will not authorize the legislature to disregard the dis

where they have full operation without it, where i would destroy some of the most important objects for which the power was created, then, we think, affirmative words ought not to be construed negatively.

absence will justily a sound construction of the whole article, so as to give every part its intended effect. It is admitted that "affirmative words are often, in their operation, negative of The constitution gives the supreme court original other objects than those affirmed;" and that where jurisdiction in certain enumerated cases, and gives "a negative or exclusive sense must be given to it appellate jurisdiction in all others. Among those them, or they have no operation at all, "they must in which jurisdiction must be exercised, in the ap-receive that negative or exclusive sense. But pellate form,are cases arising under the constitution and laws of the United States. These provisions of the constitution are equally obligatory and are to be equally respected. If a state be a party, the jurisdiction of this court is original; if the case arise under a constitution or a law, the jurisdiction is apThe constitution declares that, in cases where 2 pellate. But a case, to which a state is a party, may state is a party, the supreme court shall have origiarise under the constitution or a law of the United nal jurisdiction, but does not say that its appellate States. What rule is applicable to such a case? jurisdiction shall not be exercised in cases where, What then becomes the duty of the court? Certain- from their nature, appellate jurisdiction is given, ly, we think, so to construe the constitution as to whether a state be or be not a party. It may be give effect to both provisions, as far as it is possible conceded that, where the case is of such a nature to reconcile them, and not to permit their seeming as to admit of its originating in the supreme court, repugnancy to destroy each other. We must endea- it ought to originate there; but where, from its navor so to construe them as to preserve the true in-ture it cannot originate in that court, these words tent and meaning of the instrument.

ought not to be so construed as to require it.- There are many cases in which it would be found extremely difficult, and subversive of the spirit of the constitution, to maintain the construction that appellate jurisdiction cannot be exercised where one of the parties might sue or be sued in this court.

In one description of cases, the jurisdiction of the court is founded entirely on the character of the parties; and the nature of the controversy is not contemplated by the constitution. The character of the parties is every thing, the nature of the case nothing. In the other description of cases, the ju. The constitution defines the jurisdiction of the risdiction is founded entirely on the character of supreme court, but does not defiine that of the in. the case, and the parties are not contemplated by ferior courts. Can it be affirmed that a state might the constitution. In these the nature of the case is not sue the citizen of another state in a circuit every thing, the character of the parties nothing. court? Should the circuit court decide for or aWhen then the constitution declares the jurisdic-gainst its jurisdiction, should it dismis the suit, or tion, in cases where a state shall be a party, to be give judgment against the state, might not its deoriginal, and in all cases arising under the consti- cision be revised in the supreme court? The argutution or a law, to be appellate; the conclusionment is, that it could not, and the very clause seems irresistible, that its framers designed to in- which is urged to prove that the circuit court clude in the first class, those cases in which juris- could give no judgment in the case, is also urged

to prove that its judgment is inreversible. A su-tention. The court may imply a negative from afpervising court, whose peculiar province it is to firmative words, where the implication promotes, correct the errors of an inferior court, has no pow-not where it defeats the intention. er to correct a judgment given without jurisdiction, If we apply this principle, the correctness of because, in the same case, that supervising court which we believe will not be controverted, to the has original jurisdiction. Had negative words distributive clause under consideration, the result, been employed, it would be difficult to give them we think, would be this: The original jurisdiction this construction if they would admit of any other. of the supreme court, in cases where a state is a But without negative words, this irrational con-party, refers to those cases in which, according to struction can never be maintained. the grant of power made in the preceding clause, So too, in the same clause, the jurisdiction of the jurisdiction might be exercised in consequence of court is declared to be original "in cases affect the character of the party, and an original suit, ing ambassadors, other public ministers, and con- might be instituted in any of the federal courts, suls." There is, perhaps, no part of the article not to those cases in which an original suit might under consideration, so much required by national not be instituted in a federal court. Of the last policy as this; unless it be that part which extends description, is every case between a state and its the judical power "to all cases arising under the citizens, and perhaps every case in which a state constitution, laws, and treaties, of the United is enforcing its penal laws. In such cases, thereStates." It has been generally held that the state fore, the supreme court cannot take original juriscourts have a concurrent jurisdiction with the fe- diction. In every other case, that is in every case deral courts, in cases to which the judical power is to which the judicial power extends, and in which extended, unless the jurisdiction of the federal original jurisdiction is not expressly given, that courts be rendered exclusive by the words of the judicial power shall be exercised in the appellate, 3d article. If the words "to all cases" give exclu- and only in the appellate, form. The original jusive jurisdction in cases affecting foreign ministers, risdiction of this court cannot be enlarged, but its they may also give exclusive jurisdiction, if such appellate jurisdiction may be exercised in every be the will of congress, in cases arising under the case cognizable under the 3d article of the consticonstitution, laws, and treaties, of the United tution, in the federal courts, in which original jurisStates. Now, suppose an indiv:dual were to sue adiction cannot be exercised; and the extent of this foreign minister in a state court, and that court judicial power is to be measured, not by giving the where to maintain its jurisdiction, and render judg-words of affirmative the distributive clause, a negament against the minister, could it be contended tive operation in every possible case, but by giving that this court would be incapable of revising such their true meaning to the words which define its judgment, because the constitution had given it ori- extent. ginal jurisdiction in the case? If this could be maintained, then a clause inserted for the purpose of excluding the jurisdiction of all other courts than this, in a paricular case, would have the effect of excluding the jurisdiction of this court in that very case, if the suit were to be brought in another court, and that court were to assert jurisdiction. This tribunal, according to the argument which has been urged, could neither revise the judgment of such other court, nor suspend its proceedings: for a writ of prohibition, or any other similar writ, is in the nature of appellate process.

The council for the defendant in error urge, in opposition to this rule of construction, some dicta of the court in the case of Marbury vs Madison.

It is a maxim not to be disregarded, that genera? expressions, in every opinion, are to be taken in connection with the case in which those expressions are used. If they go beyond the case, they may be respected, but ought not to control the judgment in a subsequent suit when the very point is presented for decision. The reason of this maxim is obvious. The question actually before the court is investigated with care, and considered in its full extent. Other principles which may serve to illustrate it, are considered in their relation to the case decided, but their possible bearing on all other cases is seldom completely investigated.

Foreign consuls frequently assert, in our prize courts, the claims of their fellow subjects. These suits are maintained by them as consuls. The appellate power of this court has been frequently exercised in such cases, and has never been question- In the case of Marbury vs. Madison, the single ed. It would be extremely mischievous to with- question before the court, so far as that case can be hold its exercise. Yet the consul is a party on the applied to this, was, whether the legislature would record. The truth is, that where the words confer give this court original jurisdiction in a case in which only appellate jurisdiction, original jurisdiction is the constitution had clearly not given it, and in most clearly not given; but, where the words admit which no doubt respecting the construction of the of appellate jurisdiction, the power to take cogni- article could possibly be raised. The court deci zance of the suit orignally, does not necessarily neded, and we think very properly, that the legislagative the power to decide upon it on an appeal, if it may originate in a different court.

ture could not give original jurisdiction in such a case. But, in the reasoning of the court in sup. port of this decision, some expressions are used which go far beyond it. The counsel for Marbury

[TO BE CONCLUDED IN OUR NEXT.]

It is, we think, apparent that to give this distributive clause the interpretation contended for, to give to its affirmative words a negative operation, in every posible case, would, in some instances, defeat the obvious intention of the article. Such an POSTSCRIPT. "Glorious news!"" The ship Marinterpretation would not consist with those rules tha has arrived at New-York, bringing London pawhich, from time immemorial, have guided courts, pers of the 24th of March-all the intelligence yet in their construction of instruments brought under received here (in Baltimore) amounts only to this, their consideration. It must, therefore, be discard--that there had been a battle between the Austrian ed. Every part of the article must be taken into slaves and the Neapolitan patriots, in which the forview, and that construction adopted which will mer were defeated. We shall have particulars for consist with its words, and promote its general in- our next.

PRINTED BY WILLIAM OGDEN XILES, AT THE FRANKLIN PRESS, WATER-STREET, EAST OF SOUTH-STREET.

NEW SERIES. No. 11-VOL. VIII.] BALTIMORE, MAY 12, 1821. [No. 11-VOL.XX. WHOLE NO. 505

THE PAST-THE PRESENT FOR THE FUTURE.

EDITED AND PUBLISHED BY H. NILES, AT $5 PER ANNUM, PAYABLE IN ADVANCE,

For editorial or miscellaneous matter, see page 167.

Perhaps not. Without, however, deciding such supposed case, we may say that it is entirely unlike that under consideration.

Question of Jurisdiction-concluded. The citizen who has paid his money to his state, had insisted on the unlimited discretion of the le- under a law that is void, is in the same situation gislature in the apportionment of the judicial pow-with every other person who has paid money by er; and it is against this argument that the reason- mistake. The law raises an assumpist to return the ing of the court is directed. They say that, if such money, and it is upon that assumpist that the action had been the intention of the article, "it would is to be maintained. To refuse to comply with this certainly have been useless to proceed farther than assumpist may be no more a violation of the consti. to define the judicial power, and the tribunals in tution, than to refuse to comply with any other; and which it should be vested. The court says that as the federal courts never had jurisdiction over such a construction would render the clause, divi- contracts between a state and its citizens, they may ding the jurisdiction of the court imal and have none over this. But let us so vary the supappellate, totaly useless; that "affirmative words posed case, as to give it a real resemblance to that are often, in their operation, negative of other under consideration. Suppose a citizen to refuse objects than those which are affirmed; and, in this case, (in the case of Marbury vs. Madison), a nega. tive or exclusive sense must be given to them, or they have no operation at all." "It cannot be presumed, adds the court, that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible unless the words require it."

to pay this export duty, and a suit to be instituted for the purpose of compelling him to pay it. He pleads the constitution of the United States in bar of the action, notwithstanding which the court gives judgment against him. This would be a case arising under the constitution, and would be the very case now before the court.

We are also asked, if a state should confiscate property secured by a treaty, whether the individual could maintain an action for that property?

thus secured, could be extinguished by an act of confiscation. The injured party, therefore, has his remedy against the occupant of the land for that which the treaty secures to him, not against the state for money which is not secured to him.

The whole reasoning of the court proceeds upon the idea that the affirmative words of the clause, giving one sort of jurisdiction, must imply a nega- If the property confiscated be debts, our own extive of any other sort of jurisdiction, because other-perience informs us that the remedy of the creditor wise the words would be totally inoperative, and against his debtor remains. If it be land, which is this reasoning is advanced in a case to which it was secured by a treaty, and afterwards confiscated by strictly applicable. If, in that case, original jurisdic- a state, the argument does not assume that this title, tion could have been exercised, the clause under consideration would have been entirely useless.Having such cases only in its view, the court lays down a principle which is generally correct, in terms much broader than the decision, and not only much broader than the reasoning with which that decision is supported, but in some instances contradictory to its principle. The reasoning sustains the negative operation of the words in that case, because, otherwise the clause would have no meaning whatever, and because such operation was necessary to give effect to the intention of the article. The effort now made is, to apply the conclusion to which the court was conducted by that reasoning in the particular case, to one in which the words have their full operation when understood affirmatively, and in which the negative, or exclusive sense is to be so used as to defeat some of the great objects of the article.

The case of a state which pays off its own debts with paper money, no more resembles this than do those to which we have already adverted. The courts have no jurisdiction over the contract. They cannot enforce it nor judge of its violation. Let it be that the act discharging the debt is a mere nullity, and that it is still due. Yet the federal courts have no cognizance of the case. But suppose a state to institute proceedings against an individual, which depended on the validity of an act emitting bills of credit: suppose a state to prosecute one of its citizens for refusing paper money, who should plead the constitution in bar of such prosecution. If his plea should be overruled and judgment To this construction the court cannot give its as-rendered against him, his case would resemble this; sent. The general expressions in the case of Mar bury vs. Madison must be understood with the limi. tations which are giver to them in this opinion; limitations which in no degree affect the decision in that case, or the tenor of its reasoning.

and, unless the jurisdiction of this court might be excrcised over it, the constitution would be violated, and the injured party be unable to bring his case before that tribunal to which the people of the United States have assigned all such cases. It is most true that this court will not take jurisdiction The counsel who closed the argument, put se-if it should not; but it is equally true, that it must veral cases for the purpose of illustration, which he take jurisdiction if it should. The judiciary cansupposed to arise under the constitution, and yet not, as the legislature may, avoid a measure be. to be, apparently, without the jurisdiction of the cause it approaches the confines of the constitu court. tion. We cannot pass it by because it is doubtful. Were a state to lay a duty on exports, to collect With whatever doubts, with whatever difficulties, the money and place it in her treasury, could the a case may be attended, we must decide it, if it be citizen who paid it, he asks, maintain a suit in this brought before us. We have no more right to decourt against such state, to recover back the mo-cline the exercise of jurisdiction which is given, ney?⚫ than to usurp that which is not given. The one or Ves, KK.----11.

other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states, would be creditors to any consider. able amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment therefore extended to suits commenced or prosecuted by individuals, but not to those brought by states.

other would be treason to the constitution. Ques- We must ascribe the amendment, then, to some tions may occur which we would gladly avoid; but we cannot avoid them. All we can do is to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one. To escape the operation of these comprehensive words, the counsel for the defendant has mentioned instances in which the constitution might be violated without giving jurisdiction to this court. These words, therefore, however universal in their expression, must, he contends, be limited and controlled in their construction by circumstances. One of these instances is the grant by a state of a patent of nobility. The court, he says, cannot annul this grant.

sion.

The first impression made on the mind by this amendment is, that it was intended for those cases and for those only. To which some demand against a state is made by an individual in the courts of the This may be very true; but by no means justifies union, Insider the causes to which it is to the inference drawn from it. The article does not be traced, we are conducted to the same concluextend the judicial power to every violation of the A general interest might well be felt in leav constitution which may possibly take place, but ing to a state the full power of consulting its conto "a case in law or equity," in which a right, un-venience in the adjustment of its debts, or of other der such law, is asserted in a court of justice. If claims upon it; but no interest could be felt in so the question cannot be brought into a court, then changing the relations between the whole and its there is no case in law or equity, and no jurisdic- parts as to strip the government of the means of tion is given by the words of the article. But if, protecting, by the instrumentality of its courts, the in any controversy depending in a court, the cause constitution and laws from active violation. should depend on the validity of such a law, that The words of the amendment appear to the court would be a case arising under the constitution, toto justify and require this construction. The juwhich the judicial power of the United States would extend. The same observation applies to the other instances with which the counsel who opened the cause has illustrated this argument.Although they show that there may be violations of the constitution of which the courts can take no cognizance, they do not show that an interpretation more restrictive than the words themselves import, ought to be given to this article. They do not show that there can be "a case, in law or equity," arising under the constitution, to which the judicial power does not extend. We think, then, that, as the constitution originally stood, the appellate jurisdiction of this court, in all cases arising under the constitution, laws, or treaties of the United States, was not arrested by the circumstance that a state was a party.

This leads to a consideration of the 11th amend ment. It is in these words: "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state."

dical power is not "to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state," &c.

What is a suit? We understand it to be the prosecution, or pursuit, of some claim, demand, or request. In law language, it is the prosecution of some demand in a court of justice. The remedy for every species of wrong is, says judge Blackstone, "the being put in possession of that right whereof the party injured is deprived."

"The instruments whereby this remedy is obtain ed are a diversity of suits and actions, which are de fined by the minor to be "the lawful demand of one's right." Or, as Bractan and Fleta express it, in the words of Justinian,jas prosequendi in judicio quod ali cui debetur." The right of prosecuting, &c. Blackstone then proceeds to describe every species of remedy by suit; and they are all cases where the party sueing claims to obtain something to which he has a right.

To commence a suit, is to demand something by the institution of process in a court of justice, and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against & It is a part of our history, that, at the adoption state, we should understand process sued out by that of the constitution, all the states were greatly in-individual against the state, for the purpose of esdebted; and the apprehension that these debts tablishing some claim against it by the judgment of might be prosecuted in the federal courts formed a court; and the prosecution of that suit is its cona very serious objection to that instrument. Suits tinuance. Whatever may be the stages of its prowere instituted; and the court maintained its juris-gress, the actor is still the same. Suits had been diction. The alarm was general; and, to quiet the commenced in the supreme court against some of apprehensions that were so extensively entertain the states before this amendment was introduced ed, this amendment was proposed in congress, and into congress, and others might be commenced be. adopted by the state legislatures. That its motive fore it should be adopted by the state legislatures, was not to maintain the sovereignty of a state from and might be depending at the time of its adoption. the degradation supposed to attend a compulsory The object of the amendment was not only to preappearance before the tribunal of the nation may vent the commencement of future suits, but to arbe inferred from the terms of the amendment. It rest the prosecution of those which might be com does not comprehend controversies between two or menced when this article should form a part of the more states, or between a state and a foreign state. constitution. It therefore embraces both objects; The jurisdiction of the court still extends to and its meaning is, that the judicial power shall not these cases; and in these a state may still be sued.] be construed to extend to any suit which may be

commenced, or which, if already commenced, mayed by that tribunal whose province it is to construe be prosecuted against a state by the citizen of ano- the constitution and laws of the union. ther state. If a suit, brought in one court and carried by legal process to a súpervising court, be a continuation of the same suit, then this suit is not commenced nor prosecuted against a state. It is clearly in its commencement the suit of a state against an indvidual, which suit is transferred to this court, not for the purpose of asserting any claim against the state, but for the purpose of asserting a constitutional defence against a claim made by a state.

The only part of the proceeding which is in any manner personal is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another court, where he may appear or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court, and may therefore not know that his cause is removed, common justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought

as a default. Judgment cannot be given against him for his non-appearance, but the judgment is to be re-examined and reversed, or affirmed in like manner as if the party had appeared and argued his cause.

A writ of error is defined to be, a commission by which the judges of one court are authorized to examine a record upon which a judgment was giv-into court, nor is his failure to appear considered en in another court, and, on such examination, to affirm or reverse the same according to law. If, says my lord Coke, by the writ of error, the plaintiff may recover, or be restored to any thing, it may be released by the name of an action. In Bacon's abridgment, title error, letter L, it is laid The point of view in which this writ of error down that "where by a writ of error, the plaintiff with its citation has been considered uniformly in shall recover, or be restored to any personal thing, the courts of the union, has been well illustrated as debt, damage, or the like, a release of all actions by a reference to the uniform course of this court personal is a good plea; and when land is to be re-in suits instituted by the United States. The unicovered or restored in a writ of error, a release of versally received opinion is, that no suit can be actions real is a good bar; but where by a writ of commenced or prosecuted against the U. States. error the plaintiff shall not be restored to any per That the judicial act does not authorize such suits. sonal or real thing, a release of all actions, real or Yet writs of error, accompanied with citations, personal, is no bar." And for this we have the au-have uniformly issued for the removal of judg thority of lord Coke, both in his commentary on ments in favor of the United States into a superior Littleton and in his reports. A writ of error, then, court where they have, like those in favor of an is in the nature of a suit or action when it is to re-individual, been re-examined and affirmed, or restore the party who obtains it, to the possession of versed. It has never been suggested that such any thing which is withheld from him, not when writ of error was a suit against the United States, its operation is entirely defensive. and therefore not within the jurisdiction of the appellate court.

This rule will apply to writs of error from the courts of the United States, as well as to those writs in England.

It is then the opinion of the court that the defendant who removes a judgment rendered against Under the judicial act the effect of a writ of er-him by a state court into this court, for the purror is simply to bring the record into court and pose of re-examining the question, whether that submit the judgment of the inferior tribunal to re-judgment be in violation of the constitution or examination. It does not in any manner act upon laws of the United States, does not commence or the parties, it acts only on the record. It removes prosecute a suit against the state, whatever may the record into the supervising tribunal. Where be its opinion, where the effect of the writ may be then a state obtains a judgment against an individu- to restore the party to the possession of a thing al, and the court rendering such judgment over-which he demands. rules, a defence set up under the constituion or But, should we in this be mistaken, the error laws of the United States, the transfer of this re- does not affect the case now before the court. If cord into the supreme court for the sole purpose of this writ of error be a suit in the sense of the 11th enquiring whether the judgment violates the con- amendment, it is not a suit commenced or prosestitution or laws of the United States, can, with no cuted "by a citizen of another state, or by a citipropriety, we think, be denominated a suit com- zen or subject of any foreign state." It is not menced or prosecuted against the state whose then within the amendment, but is governed enjudgment is so far re-examined. Nothing is de- tirely by the constitution as originally framed, and manded from the state. No claim against it of any we have already seen that in its origin, the judiciał description is asserted or prosecuted. The party power was extended to all cases arising under the is not to be restored to the possession of any thing.constitution or laws of the United States, without Essentially it is an appeal on a single point; and respect to parties. the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual This objection is sustained chiefly by arguments mode of removing suits at common law; and be drawn from the supposed total separation of the Cause perhaps it is more technically proper where judiciary of a state from that of the union, and a single point of law, and not the whole case, is to their entire independence of each other.-The arbe re-examined. But an appeal might be given, gument considers the federal judiciary as comand might be so regulated as to affect every purpletely foreign to that of a state, and as being no pose of a writ of error. The mode of removal is more connected with it any respect whatever, than form, and not substance. Whether it be by writ the court of a foreign state. If this hypothesis be or error of appeal, no claim is asserted, no demand just, the argument founded on it is equally so; but is made by the original defendant; he only asserts if the hypothesis be not supported by the constitu the constitutional right to have his defence examin- tion, the argument fails with it.

2d. The second objection to the jurisdiction of the court is, that its appellate power cannot be exercised, in any case, over the judgment of a state court.