of the court founded their conclusions against its CHAP. 4. jurisdiction mainly on other grounds. And in the subsequent case of Ableman v. Booth (21 Howard, 506), also a writ of error to reverse the judgment of a state court on a writ of habeas corpus, the jurisdiction of the court was unquestioned, and, apparently, not doubted. It is perfectly clear, indeed, that a proceeding on habeas corpus is embraced by the interpretation given to the word suit in the case of Weston v. The City Council of Charleston, just above cited. diction section, how made to appear. 7. In what manner, or rather with what degree of Juris certainty it must "appear upon the face of the record" under 25th that some one of the points specified in the twentyfifth section of the judicial act in order to enable the supreme court to revise the judgments and decrees of the state courts, "was drawn in question," in the state court, is a question which has often been agitated. By a long series of decisions, however, the following general principle may now be regarded as definitively settled, viz.: that it need not appear in terms upon the record that one of these points in fact arose and was decided in the required manner; but Unavoidthat it is sufficient, if it is apparent that the case in cation suffipoint of law involved one of the specified questions, and could not have been decided by the state court in the manner it was, unless such question had been virtually passed upon and determined in the required manner. Thus in the case of Craig et al. v. The State of Missouri (4 Peters, 410), the suit in the state court having, as appeared by the record returned with the writ of error, been upon a promissory note (the declaration being in the usual form, and the plea being the general issue), in which (neither party having required a jury), the court found that the defendant 1 See a note upon this case a few pages, post. cient. PART 1. did assume, &c., and that the consideration of the note was "the loan of loan office certificates, loaned by the state at their office at Charleston; which certificates were issued and the loan made in the manner pointed out by an act of the legislature of the said State of Missouri, approved the 27th day of June, 1821, entitled "an act for the establishment of loan offices," and the "act amendatory and supplementary thereto," and that the plaintiff had sustained damages, &c., &c.; for which a judgment was rendered; it was held, that it was sufficiently apparent upon the face of the record, that the validity of a statute of the State of Missouri, was drawn in question upon the ground of its being repugnant to that provision of the constitution of the United States, which prohibits the states from emitting bills of credit, and that it presented a case therefore, to which the appellate jurisdiction of the court extended, in virtue of the twenty-fifth section of the judicial act." "The record," say the court, "shows distinctly that this point existed, and that no other did exist; the special statement of the facts made by the court as exhibiting the foundation of its judgment, contains this point and no other. The record shows clearly that the cause did depend and must depend on this point alone. If in such a case the mere omission of the court of Missouri to say in terms, that the act of the legislature was constitutional, withdraws that point from the cause, and must close the judicial eyes of the appellate tribunal upon it, nothing can be more obvious than that the provisions of the constitution and of an act of congress, may be always evaded; and may be often, as we think they would be in this case, unintentionally defeated." This decision, the court were of opinion, was in strict conformity with their prior decisions upon this section of the judicial act, and they cite the following cases in confirmation CHAP. 4. of the fact: Smith v. The State of Maryland, 6 Cranch, 286; Martin v. Hunter's Lessee, 1 Wheat., 355; Miller v. Nichols, 4 id., 311; Williams v. Norris, 11 id., 117; Wilson et al. v. The Blackbird Creek Marsh Company, 2 Peters, 245; and Harris v. Dennie, 3 id., 292; see also Mills v. Brown, 16 id., 525. But that some one of the questions designated in the 25th section did arise in the state court, and that it was decided in the manner required by the section, must appear on the face of the record, either in express terms or by necessary intendment. It is not enough that such question may have arisen and may have been so decided. Crowell v. Randell, 10 Peters, 368; M'Kinney v. Carroll, 12 id., 66; Ocean Insu rance Company v. Polleys, 13 id., 187; Coons et al. v. Gallaher et al., 15 id., 18. See, also, Davis v. Packard et al., 6 id., 41; S. C., 7 id., 276; 8 id., 312; Wallace v. Parker, id., 680; Byrne v. The State of Missouri, 8 id., 40; The City of New Orleans v. De Armas et al., 9 id., 224; The Palmyra, 10 Wheat, 502; Carter's heirs v. Cutting et ux., 8 Cranch, 251; Mason v. Mason, 1 Cranch, 45; Mills v. Brown, 16 Peters, 525. The jurisdiction of the court must appear from the Must be shown by record per se, strictly considered. Fisher v. Cockerell, the record. 5 Peters, 248; Lessee of Reed v. Marsh, 13 Peters, 153. And therefore the certificate of the clerk of the state court appended to the record, showing what documents were read and relied on at the trial, or on what grounds the case was decided, can have no influence. Ib. See, also, the case of Armstrong v. The Treasurer of Athens County, 16 Peters, 281, where this principle is elaborately reasserted and defined as follows: PART 1. Construction of not within the act. "In order to give this court jurisdiction under the 25th section of the act of 1789, it must appear on the record itself, to be one of the cases enumerated in that section: and nothing out of the record certified to this court can be taken into consideration. This must be shown: First, Either by express averment, or by necessary intendment, in the pleadings in the case; or, Secondly, By the direction given by the court, and stated in the exception; or, Thirdly, When the proceeding is according to the law of Louisiana, by the statement of facts, and of the decision, as usually made in such cases, by the court; or, Fourthly, It must be entered on the record of the proceedings in the appellate court, in cases where the record. shows that such a point may have arisen and been decided, that it was in fact raised and decided - and this entry must appear to have been made by order of the court, or by the presiding judge, by order of the court, and certified by the clerk, as a part of the record in the state court; or, Fifthly, In proceedings in equity, it may be stated in the body of the final decree of the state court; or, Sixthly, It must appear from the record that the question was necessarily involved in the decision, and that the state court could not have given the judgment or decree which they passed, without deciding it. We are not aware of any other mode in which the judgment or decree of a state court can lawfully be brought before us; and we have stated them particularly, in order to prevent, in future, the difficulties and discrepancies which have so often arisen on this subject." See to the like effect, Commercial Bank of Cincinnati v. Buckingham's Executors, 5 Howard, 317; Grand Gulf Railroad Company et al. v. Marshall, 12 Howard, 165; 20 Howard, 26. Where it appears from the record that the decision state law, of the state court turned upon the construction of the state law, and that the question of its validity was not raised, the court has no jurisdiction. 12 Howard, 165. See, also, Gill v. Oliver's Executors et al., 11 id., 529; Williams et al. v. Oliver et al., 12 id., 111; Linton et al. v. Stanton, 12 id., 423; Smith v. Hunter CHAP. 4. et al., 7 id., 738; Udell et al. v. Davidson, id., 769; Neilson v. Lagow, id., 772; Mills et al. v. The County of St. Clair et al., 8 id., 569; Baltimore and Susquehannah R. R. Co. v. Nesbit et al., 10 id., 395; The State of Maryland v. Co., 3 id., 534. The Baltimore and Ohio R. R. be that of the party himself. To entitle a party to a writ of error on the ground The right, &c., dethat the decision of the state court was adverse to a nied must title, right, privilege, or exemption, set up or claimed by him in virtue of the constitution, or of a treaty or statute of the United States, it must appear that such title, &c., was claimed as his, and not for a third person; and, therefore, where a defendant, in an action of ejectment, set up an outstanding title in a third person, derived from a treaty with an Indian tribe, and the decision of the state court was against such title, the case was held not to be embraced by the 25th section of the judiciary act, because the defendant derived his right to set up this form of defense, not from the treaty, but from the laws of the State of Tennessee, by which it was authorized. Henderson et al. v. The State of Tennessee, 10 Howard, 311. stitutes a under the 8. What shall be considered as constituting a case What conarising under the constitution, laws or treaties of the case arising United States within the import of these terms as constitu used in the constitution, is a question which has several times been brought into discussion in the supreme court. In the case of Worcester v. The State of Georgia (6 Peters, 515), the plaintiff in error had been indicted and convicted in a state court of Georgia for residing among the Cherokee Indians without having complied with certain conditions required by an act tion, &c. |