create that cause. Marbury v. Madison, 1 Cr. 138; Curtis' Com. § 110, 113. ferred? The Supreme Court possesses no appellate power in any case, How must unless conferred upon it by act of Congress, nor can it, when con- it be conferred, be exercised in any other mode of proceeding than that' which the law prescribes. Barry v. Mercein, 5 How. 119. The appellate powers are not given by the judicial act, but by the Constitution. They are limited and regulated by the judicial act, and by such other acts as have been passed upon the subject. Durousseau v. The United States, 6 Cr. 313. Curtis' Com. $112. Congress may prescribe the mode of exercising this appellate jurisdiction. Marbury v. Madison, 1 Cr. 137; Weston v. Charleston, 2 Pet. 449; United States v. Hamilton, 3 Dall. 17; Ex parte Bollman, 4 Cr. 75; Ex parte Kearney, 7 Wheat. 38; Ex parte Crane, 5 Pet. 190; Story's Const. § 1755, 1756; Curtis' Com. § 113. By the 22d section of the judiciary act, the controversy must What does be concerning a thing of money value; the judgment must be the act final; and the matter in controversy must exceed the sum of two require thousand dollars. By the 25th section, the right to re-examine does not depend on the money value of the thing in controversy, but upon the character of the right in dispute, and the judgment which the State court has pronounced upon it; and it is altogether immaterial whether the right in controversy can or can not be measured by a money standard. (1 St. 84-86; § 22, 25. Barry v. Mercein, 5 How. 120. See Wilson v. Daniel, 3 Dall. 401; 3 Cond. 185; Course v. Stead, 4 Dall. 22; 1 Cond. 217; United States v. Brig Union, 4 Cr. 216; 2 Cond. 91; Smith v. Henry, 3 Pet. 469; Gordon v. Ogden, Id. 33; Hagan v. Foison, 10 Pet. 160; Oliver v. Alexander, 6 Pet. 143; Scott v. Lunt, 6 Pet. 349; Wallen v. Williams, 7 Cr. 278; Fisher v. Cockrell, 5 Pet. 248; Martin v. Hunter, 1 Wheat. 304; 3 Cond. 575; Williams v. Norris, 12 Wheat. 117; 6 Cond. 462.) Bank of United States v. Daniel, 12 How. 52. Rector v. Ashley, U. S. C. C. Dic. T., 1867; 6 Wall, 000. To give appellate jurisdiction under the 25th section, it must appear : First-That some one of the questions stated in the section did What gives arise in the court below; and Secondly, that a decision was appellate actually made thereon by the same court, in the manner required jurisdicby the section. (Shoemaker v. Randell, 10 Pet. 394.) McKinney v. Carroll, 12 How. 70. That is, that the question was made and the decision given by the court below on the very point; or that it must have been given in order to have arrived at the judgment. (Owings v. Norwood, 5 Cr. 344; Smith v. The State, 6 Cr. 281; Martin v. Hunter, 5 Wheat. 305, 355; Inglee v. Coolidge, 4 Cond. 155; Miller v. Nicholls, 4 Wheat. 311, 315; 4 Cond. 465; Williams v. Norris, 12 Wheat. 117, 124; 6 Cond. 462; Fisher v. Cockerill, 5 Pet. 255, 258; Wilson v. Blackbird Creek Marsh Company, 2 Pet. 245; Satterlee v. Mathewson, 2 Pet. 380, 410; Craig v. Missouri, 4 Pet. tion? Give tho four requisites? Define law and fact? 270-272. What gives the appellate jurisdiction? What jurisdiction can Congress confer? Can the States superadd 410; Davis v Packard, 6 Pet. 41, 48; Mayor of New Orleans Pet. 234.) Crowell v. Randell, 10 Pet. 394-398. After this rull review, these propositions were stated:-1. That some one of the questions (stated in the 25th section) did arise in the State court; 2. That the question was decided by the State court as required in the same section; 3. It is not necessary that the question should appear on the record to have been raised, and the decision made in direct and positive terms ipsissimis verbis; but that it is sufficient if it appear by clear and necessary intendment, that the question must have been raised, and must have been decided in order to have induced the judgment. 4. That it is not sufficient to show that a question might have arisen and been applicable to the case; unless it is further shown on the record, that it did arise, and was applied by the State court in the case. Crowell v. Randell, 10 Pet. 398. Affirmed, Choteam v. Marguerite, 12 How. 510; McKinney v. Carroll, 12 How. 70. See Brightly's Digest, Tit. "ERRORS AND APPEALS," pp. 257–261, and voluminous notes thereon. "LAW AND FACT."-Since the seventh amendment, Congress can not confer upon the Supreme Court authority to grant a new trial by a re-examination of the facts, and tried by a jury, except to redress errors of law. (Parsons v. Bedford, 3 Pet. 447, 449. See Bank of Hamilton v. Dudley, 2 Pet. 492). Curtis' Com. § 114. It is the "case" and not the court which gives the appellate jurisdiction. (Martin v. Hunter, 1 Wheat. 394). Curtis' Com. $115. Therefore, if the question or the parties give federal jurisdiction, it may be reached by appeal. Id.; Cohens v. Virginia, 6 Wh. 413. The objects of appeal, not the tribunals from which it is to be made, are alone contemplated. Id. 416; Curtis' Com. § 116. And see Osborn v. Bank of United States, 9 Wheat. 820, 821; Story's Const. § 1701. If the objects can be attained without excluding the concurrent jurisdiction of the State courts, over cases which existed before, it would seem to be necessary to adopt such a construction as will sustain their concurrent powers. (Teal v. Felton, 12 How. 284, 292.) Curtis' Com. § 121, 123, 124. As to when original jurisdiction is exclusive, see same author, § 129-135, and Martin v. Hunter; Houston v. Moore, 5 Wheat. 1, 12. Congress can not confer jurisdiction upon any courts, but such as exist under the Constitution and laws of the United States, although the State courts may exercise jurisdiction in cases authorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the federal courts. Houston v. Moore, 5 Wheat. 24-28, § 135, p. 178. And wherever the law of Congress furnishes the offense, the State law can only be enforced by the authority of Congress, or unless the power remain concurrent. Id. If the jurisdiction be concurrent, the sentence of either court may be pleaded in law. Houston v. Moore, 5 Wheat. 40; 1 Curtis' Com. p. 180. Where Congress has exercised a power over a particular subject given them by the Constitution, it is not competent for State any thing? legislation to add to the provisions of Congress upon that subject. The action by Congress seems to exclude State legislation. (Houston v. Moore, 5 Wheat. 1, 22, 23; Prigg v. Pennsylvania, 16 Pet. 608.) Story's Const. 3d ed. p. 615. "WHERE A STATE SHALL BE A PARTY."-That is: 1. Where one In what State is plaintiff, and another State is defendant; three cases 2. Where a State is plaintiff, and an individual, whether a citizen of some other may a State be a party? State or an alien, is defendant. 3. Where a foreign State is plaintiff against one of the United States as defendant. Curtis' Com. $153-157. See Rhode Island v. Massachusetts, 12 Pet. 657; New Jersey v. New York, 5 Pet. 283; Pennsylvania v. The Wheeling & Belmont Bridge Co. 13 Howard, 528; Cherokee Nation v. Georgia, 5 Pet. 1; Ex parte Juan Madrazo, 7 Pet. 627. where must had? [3.] The trial of all crimes, except in cases of im- How and peachment, shall be by jury; and such trial shall be trials be held in the State where the said crimes shall have been committed; but when not committed within any State, the trial shall be at such place or places as the Congress may by law have directed. 212. "THE TRIAL." (L. Lat. trialio. Exactissima litis contestatæ, Define coram judice, per duodecem virale exagititio. SPELMAN.)-The term trial? means here, the examination before a competent tribunal, according to the laws of the land, of the facts put in issue upon the indictment or presentment, for the purpose of determining the truth of such issues. United States v. Curtis, 4 Mason, 232; Co. Litt. 1246. And see Burrill's Law Dic., TRIAL; Magna Charta, ch. 29 (9 Henry III.); 2 Inst. 45; 3 Black. Com. 379-381; 4 Black. Com. 349, 350; 2 Kent's Com. Lect. 24, pp. 1-9; 3 Elliot's Debates, 331, 339; De Lolme, B. 1, ch. 13, B. 2, ch. 16; Paley, B. 6, ch. 8; 2 Wilson's Law Lect. P. 2, ch. 6, p. 305; Story's Const. § 1778-1794. ་་ "The trial" per pais, or by the country, is the trial by a jury, who are called the peers of the party accused, being of the like condition and equality in the State. (Magna Charta.) Story's Const. $ 1779. "OF ALL CRIMES EXCEPT IN CASES OF IMPEACHMENT."-See What means "CRIME" defined, notes 193, 194. Here it means treason, piracy, "crimes" here? felony, or some offense against the law of nations or an act of the Congress of the United States. And this clause is to be taken subject to the exceptions, in the fifth amendment, as to trials in the land and naval service. The term "crime" here doubtless embraces misdemeanor. In the case of the United States v. Hudson & Goodwin (7 Cranch, 32), it was held that "the legislative authority must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offense," before the courts of the United States can exercise jurisdiction over it. This doctrine was affirmed by the case of the United States v. Coolidge et al. (1 Wheaton, 415), and Chief-Justice Marshall, in delivering the opinion of the court in Ex parte Bollman & Swartwout (4 Cranch, 89. Define jury? 260. Does it make the jury the 95), said: "Courts which originate in the common law possess a jurisdiction which must be regulated by the common law, until some statute shall change their established principles; but courts which are created by written law, and whose jurisdiction is defined by written law, can not transcend that jurisdiction." And it was in following these cases that Justice McLean held, in United States v. Lancaster (2 McLean's R. 433), that "the federal government has no jurisdiction of offenses at common law. Even in civil cases the federal government follows the rule of the common law as adopted by the States, respectively. It can exercise no criminal jurisdiction which is not given by statute, nor punish any act, criminally, except as the statute provides." The same doctrine is followed in Kitchen v. Strawbridge, 1 Wash. C. C. R., 84; United States v. New Bedford Bridge, 1 Wood & Minot 401; Ex parte Sullivan, 3 Howard, 103; 12 Peters, 654; 4 Dallas, 10, and note; 1 Kent's Com. 354; Sedgwick on Statutory and Constitutional Law, 17; and Wharton, in reviewing this question, says: "However this may be on the merits, the line of recent decisions puts it beyond doubt that the federal courts will not take jurisdiction over any crimes which have not been placed directly under their control by act of Congress." (Am. Criminal Law, 174.) Report on the Impeachment of the President, 75, 76. "BY A JURY" is generally understood to mean, ex vi termini, a trial by a jury of twelve men, impartially selected (in accordance with law), who must unanimously concur in the guilt of the accused before a conviction can be had. Any law, therefore, dispensing with any of these requisites, may be considered unconstitutional. (Work v. The State, 2 Ohio St. R. 296; The State v. Cox, 3 English, 436; The State v. The People, 2 Parker C. C. 322, 329, 402, 562; 2 Leading Criminal Cases, 327, and note.) Story's Const. 3d edition, judges of the law? V. 1779. This does not constitute them judges of the law in criminal cases. United States v. Morris, 1 Curt. C. C. 23, 49; United States And Shive, Bald. 510; United States v. Battiste, 2 Sumn. 240. see Townsend v. The State, 2 Blackf. (Ind.), 152; Pierce v. The State, 13 N. H. 536; Commonwealth v. Porter, 10 Met. 263; Commonwealth v. Sherry, Wharton on Homicides, 481. It only embraces those crimes which by former laws and customs had been tried by jury. United States v. Duane, Wall. 106. It did not secure to the conspirators who assassinated the President in Washington city during the war, and while martial law existed in Washington city, the right to trial by jury. The Trial of the Conspirators. This section compared with the fourth, fifth, and sixth amendments. Ex parte Milligan, 4 Wallace, 119; Story's Const. § 1782. The first of these secures a presentment or indictment by a grand jury before there can be a trial by a jury. Id. And for the reason of these amendments in the shape of a Bill of Rights, see 2 Elliot's Debates, 331, 380-427; 1 Id. 119-122; 3 Id. 139-153, Why in the 300. where com- 213. IN STATES WHERE COMMITTED.-This was to prevent the defendant from being dragged into a distant State. (2 Elliot's mitted? Debates, 399, 400, 407, 420; 2 Hale's P. C. ch. 24, pp. 260, 264; Many of the States are divided into two or more districts (circuits) defined by law; and the rule of trying the accused in such district is believed to be now strictly adhered to. tried? 214. "BUT WHEN NOT COMMITTED WITHIN ANY STATE, THE Where are TRIAL SHALL BE AT SUCH PLACE OR PLACES AS CONGRESS MAY BY offenders LAW HAVE DIRECTED."-The offenses committed in the District of Columbia have always been tried in the District, under the "exclusive legislation;" those in the organized territories have been tried there by the local courts of the territories; those committed by whites, or by Indians against whites (to a limited extent), have been tried in the States to whose federal courts jurisdiction had been committed by the laws to regulate trade and intercourse with the Indian tribes; those committed in forts and arsenals, over which jurisdiction had been ceded by the States, have been tried in the United States District or Circuit Courts in that State; those upon the high seas in the State where the vessel first arrives. So that "NOT COMMITTED IN ANY STATE," may be defined to be offenses committed in the District of Columbia, in forts or arsenals to which jurisdiction has been ceded by the States; in the territories of the United States; in the Indian country; upon the high seas, and everywhere, when against the law of nations. treason? SEC. III.-[1.] Treason against the United States Define shall consist only in levying war against them, or in adhering to their enemies, giving them aid and com- 192. fort. No person shall be convicted of treason, unless By how on the testimony of two witnesses to the same overt witnesses? act, or on confession in open court. many common 215. "TREASON."-[Law Lat. Proditio. L. Fr. Treson, from Define treer, trehir, trahir, to betray.] Burrill's Law Dic., TREASON. treason at The word "ONLY "9 was used to exclude from the criminal juris- law? prudence of the new republic the odious doctrines of constructive Define treason. Its use, however, while liimting the definition to plain "only"? overt acts, brings these acts into conspicuous relief, as being always, and in essence, treasonable. War, therefore, levied against the United States by citizens of the republic, under the pretended authority of the new State government of North Carolina, or the new central government which assumed the title of the "Confederate States," was treason against the United States. Chief-Justice Chase in Shortridge v. Macon (North Carolina), 16th June, 1867. In the prize cases the Supreme Court simply asserted the right of the United States to treat the insurgents as belligerents, and to claim from foreign nations the performance of neutral duties under the penalties known to international law. The decision recognized, also, the fact of the exercise and concession of belligerent rights, and affirmed, as a necessary consequence, the proposition that 117. |