A new writ of error was awarded upon this refusal, and the case came up again before the Supreme Court, as a case in which the court below drew in question, and denied the validity of the act authorizing an appeal from a state court.

In the luminous opinion delivered on that occasion by the venerable and learned Chief-justice Marshall, he observed, that the judicial power of the United States had been declared by the Constitution to extend to all cases arising under treaties made under the authority of the United States, which was an absolute grant of jurisdiction in that case; and that it was competent for the people to invest the General Government with that, or any other powers which they might deem necessary and proper, as well as to prohibit the states from the exercise of any powers which, in their judgment, were incompatible with the objects of the general compact. Congress were bound by the injunctions of the Constitution to create inferior courts, in which to vest all that judicial jurisdiction which was exclusively vested in the United States, and of which the Supreme Court cannot take any other than appellate cognizance. The whole judicial power must at all times be vested, either in an original or appellate form, in some courts created under the authority of the United States. The grant of the judicial power was thus declared to be absolute, and it was held to be imperative upon Congress to provide for the appellate jurisdiction of the Federal Courts in all cases in which the judicial power was granted exclusively to the United States, by the Constitution, and not already given, by way of original jurisdiction, to the Supreme Court. This eminent judge, in his examination of the judicial power, upon which he then entered, took a distinction between the two classes of enumerated cases, and held that

the Constitution intended that the judicial power, either in an original or appellate form, should extend absolutely to all cases in law or equity arising under the Constitution and laws of the United States, and the treaties made under its authority, to all cases affecting ambassadors, other public ministers, and consuls, and to all cases of admiralty and maritime jurisdiction, because those cases were of vital importance to the sovereignty of the Union, entered into the public policy, and affected the national rights, and the law and comity of nations. The original or appellate jurisdiction ought, therefore, in these cases, to be commensurate with the mischiefs and the policy in view. But in respect to another class of cases, it was held that the Constitution had designedly dropped the word all, so as not absolutely to extend the jurisdiction of the Federal judiciary to all controversies, but merely to controversies in which the United States were a party, or between two or more states, or between citizens of different states, &c., leaving it to Congress to qualify the jurisdiction, original or appellate, in such manner as public policy might dictate.

But whatever weight is due to this distinction, it is manifest that the judicial power was unavoidably, in some instances, exclusive of all state authority, and in all others may be made so at the discretion of Congress. The act of 1789 assumed, that in all the cases to which the judicial power of the United States extended, Congress might rightfully vest exclusive jurisdiction in their own courts. The criminal and the admiralty jurisdiction must be exclusive; and it is only in those cases where, previously to the Constitution, the state tribunals possessed jurisdiction independently of national authority, that they can now constitutionally exercise a concurrent jurisdiction

The appellate jurisdiction was not considered as limited by the Constitution to the Supreme Court; but Congress may create a succession of inferior tribunals, in each of which it may vest appellate as well as original jurisdiction. The appellate jurisdiction of the Supreme Court, in cases wherein it has not original jurisdiction, is declared by the Constitution to be subject to such exceptions and regulations as Congress may prescribe. It remained, therefore, entirely in the discretion of Congress to provide for the exercise of judicial power in all the various forms of appeal. The right of removing a cause from a state court by a defendant entitled to try his right, or assert his privileges in the national forum, is, in fact, the exercise of an appellate jurisdiction, as that power may exist as well before as after judgment, and is not limited to cases pending in the courts of the United States. Had it been so limited, it would necessarily have followed that the jurisdiction of the Federal must have been exclusive of the state courts in all the cases enumerated in the Constitution; and, inasmuch as the judicial power of the United States embraces all those cases, the state courts cannot, consistently with the express terms of the Federal compact, entertain any jurisdiction in them without the right of appeal to the Federal tribunals. For if the state courts were allowed to exercise a concurrent jurisdiction in those cases free from such control, the appellate jurisdiction of the Union would, as to the cases in question, have no existence; which would be contrary to the manifest intent of the Federal Constitution.

The appellate power of the Federal Courts must continue to extend to the state courts, so long as the latter entertain any concurrent jurisdiction over the cases which the Constitution has declared to fall

within the judicial cognizance of the United States. It is clear that the Constitution contemplated that such cases would not only arise in the state courts in the ordinary exercise of their concurrent jurisdiction, but that those tribunals would incidentally take cognizance of questions of which the courts of the United States have exclusive jurisdiction. Inasmuch, therefore, as the judicial power of the Union extends to both the above specified classes of cases, it follows, as a necessary consequence, that the appellate jurisdiction of the Federal Courts must and does extend to the state tribunals, and attach to every case within the Federal judicial power. All the enumerated cases of Federal cognizance are those which `touch the safety, peace, and sovereignty of the Union, or in which it may be presumed that state attachments, prejudices, jealousies, or interests might sometimes obstruct or control the regular administration of justice. To all such cases the appellate power is applied on the plainest principles of policy and wisdom; and this is requisite to fulfil effectually the great and beneficial ends of the Constitution; and especially to give efficacy to the power of deciding in all cases of conflict between the several states, or collision between powers claimed by a state and those claimed by the General Government; and especially to maintain the declared supremacy of the Constitution, laws, and treaties of the Union over the constitution and laws of the respective states. The existence of such a power was, moreover, deemed necessary to preserve uniformity of decision throughout the United States upon all subjects within the purview of the Constitution; and to prevent the mischiefs of opposite constructions and contradictory decisions in the several states on these points of general concern.

The appellate power of the Federal judiciary over the state tribunals does not, however, extend to a final judgment in a state court on a question arising under the authority of the Union, although a state be a party; because that jurisdiction was given to the Federal Courts in two classes of cases; in the one, it depends on the character of the cause, whosoever may be the parties; in the other, it depends entirely on the character of the parties, and then the subject of the controversy is wholly unimportant. In the celebrated case of the Georgia Missionaries,* where the validity, or, at least, the construction of the treaties made by the United States with the Cherokee Indians, was drawn in question in the highest court of that state, and the decision had been, if not "against their validity," against a "right, privilege, and exemption claimed under them;" and where had also been drawn in question the validity of a law 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 favour of its validity;" it was considered by the Supreme Court too clear for controversy, that the judiciary act of Congress had given it the power, and, of course, imposed on it the duty, of exercising an appellate jurisdiction in the case, notwithstanding it arose upon a criminal prosecution, in the state court, founded upon an act of the State Legislature. The law of Georgia was held to be repugnant to the Constitution, laws, and treaties of the United States; and the chief-justice, who delivered the opinion of the court, declared that its jurisdiction was no less clear in that case than in civil cases. He considered the parties not less interested in the operation of

* 6 Peters's Rep., 515.