habeas corpus of a prisoner indicted in a state court for doing that which under the Constitution and laws of the United States he may rightfully do, but the right of removal, the right of appeal, and the right to a discharge after hearing on habeas corpus, alike result from the constitutional declaration of the supremacy of the Constitution and laws of the United States.

The circuit courts have no appellate jurisdiction.13

14

The appellate jurisdiction of each circuit court of appeals is exercised by appeal or by writ of error from the district and circuit courts within its circuit, and from territorial courts attached by statute to its circuit, in all cases other than those in which the Supreme Court has direct appellate jurisdiction, and the judgments or decrees of each circuit court of appeal are final in all cases in which the jurisdiction is dependent exclusively upon diverse citizenship; and in all patent, revenue, and admiralty causes, and in all prosecutions not directly appealable from the district, or circuit, courts to the Supreme Court; excepting that upon every subject within its appellate jurisdiction, a circuit court of appeals may certify to the Supreme Court of the United States any question of law concerning which the circuit court of appeals desires the instruction of the Supreme Court for a proper decision; and excepting also that the Supreme Court may, in any case, require a circuit court of appeals to certify any case for final review and determination.1 15

The appeals or writs of error may be taken from the circuit court of appeals to the Supreme Court in all cases in which the judgment or decree of the circuit court of appeals is not made final by statute; and appeals or writs of error may be taken directly from the district and circuit

13 Act 3d Mar., 1891, c. 517, sec. 4, 26 Stat. 826.

14 Ibid., sec. 5.

15 Ibid., sec. 6.

courts to the Supreme Court from final sentences and decrees in prize causes; in cases of conviction of a capital or otherwise infamous crime; in any case involving the construction or application of the Constitution of the United States; in any case in which is drawn in question the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority; in any case in which the constitution or law of a state is claimed to be in contravention of the Constitution of the United States; and on any case in which the jurisdiction of the court is in issue, but in such cases the question of jurisdiction alone shall be certified by the court below for decision.16

The appellate jurisdiction of the Supreme Court also extends to final judgments of the court of claims.17

The supervisory jurisdiction of the federal courts is exercised by removal, upon petition of, and bond filed by, the defendant before filing plea or answer, of a pending civil cause from a state court to the circuit court of the United States of the proper district where the case is one of a class of which the circuit court has jurisdiction under the statutes, and where the suit arises under the Constitution, laws, or treaties of the United States, or where the defendant is a non-resident of the state, or where the controversy is wholly between citizens of different states, and it can be fully determined as between them, or where it shall be made to appear before the circuit court that the defendant, being a citizen of a state other than that in which the action is pending, cannot, by reason of apprehended prejudice or local influence, obtain justice in the state court.18 The circuit court may remand to the state court any cause not properly removed.19

18 Act 3d Mar., 1891, c. 517, sec. 5, ut supra.

17 Rev. Stat., sec. 709.

18 Act 13th Aug., 1888, c. 866, 25 Stat. 433. 19 Ibid.

It is foreign to the purpose of this book to discuss in detail the practice in the different courts.

The necessity of a judicial "case."

103. Whatever be the form in which the jurisdiction of the courts of the United States is invoked, it is essential to the exercise of the jurisdiction that there should be a "case" before the court, that is, a subject-matter for judicial determination contested by competent parties.20 The courts, therefore, will not give judgment upon "moot" questions, or abstract propositions.21 If it appear from the record, or be proven aliunde, that a judgment brought up for review has been satisfied, the appeal must be dismissed.22 It is also essential that the question for decision be judicial in character, for the courts cannot decide political questions, such as whether or not the people of a state have altered their form of government by abolishing an old government and establishing a new one in its place,23 nor whether or not, in a foreign country, a new government has been established,24 nor whether or not the United States has sovereignty over a territory,25 nor can the courts by injunction restrain a state from the forcible exercise of legislative power over an Indian tribe "asserting their independence, the right to which the state

20 Osborn v. Bank of the U. S., 9 Wheat. 738; Cohens v. Virginia, 6 id. 379; Upshur County v. Rich, 135 U. S. 467; L. A. S. M. Co. v. U. S., 175 id. 423; Lampasas v. Bell, 180 id. 276.

Mills v. Green, 159 U. S. 651; N. O. F. Inspectors v. Glover, 160 id. 170; Tyler v. Judges of Court of Registration, 179 id. 404; Codlin v. Kohlhausen, 181 id. 151; Turpin v. Lemon, 187 id. 51; Chadwick v. Kelley, ibid. 540; Smith v. Indiana, 191 id. 138.

22 A. B. Co. v. Kansas, 193 U. S. 49.

28 Luther v. Borden, 7 How. 1, 147.

24 Rose v. Himely, 4 Cr. 241, 272; Gelston v. Hoyt, 3 Wheat. 246, 324; Kennett v. Chambers, 14 How. 38; Terlinden v. Ames, 184 id. 270.

25 Jones v. U. S., 137 U. S. 202; In re Cooper, 143 U. S. 472, 503; cf. U. S. v. Texas, ibid. 621.

denies,''26 nor enjoin the executive department of the government of the United States from carrying into effect acts of Congress alleged to be unconstitutional.27 Such questions can only be decided by the political power, "and when that power has decided, the courts are bound to take notice of its decision and to follow it." 28 Upon this principle, the recognition by Congress and the executive of the state governments of the then lately rebellious states as reconstructed after the suppression of the rebellion was held to be binding upon the judicial department of the government.29 But the courts may compel the performance of a ministerial and non-discretionary duty by an executive officer, as, for instance, the delivery of a signed and sealed commission to an officer who has been appointed, nominated, and confirmed,30 or the crediting to a government creditor of a sum of money found by the Treasury to be due under the express terms of an act of Congress.31

"The Cherokee Nation v. Georgia, 5 Pet. 1, 20.

"Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 id. 50. See, however, dicta in Cruickshank v. Bidwell, 176 U. S. 73, and cases there cited. 28 Luther v. Borden, 7 How. 1.

Kendall v. U. S., 12 Pet. 521. See also Noble v. U. R. L. R., 147 U. S. 165; Decatur v. Paulding, 14 Pet. 497; U. S. v. Schurz, 102 U. S. 378; Butterworth v. Hoe, 112 id. 50; U. S. v. Black, 128 id. 40, 50; U. S. v. Windom, 137 id. 636; U. S. v. Blaine, 139 id. 306; New Orleans v. Paine, 147 id. 261; Roberts v. U. S., 176 id. 221; De Lima v. Bidwell, 182 id. 1; Fok Yung Yo v. U. S., 185 id. 296; A. S. of M. H. v. McAnnulty, 187 id. 94. In the courts of the United States, laws of foreign countries may be proved as facts, C. & A. R. v. W. F. Co., 119 U. S. 615, 622; L. & G. W. S. Co. v. P. I. Co., 129 id. 397, 445; Talbot v. Seeman, 1 Cr. 1; Church v. Hubbart, 2 id. 187; Strother v. Lucas, 6 Pet. 763; Armstrong v. Lear, 8 id. 52, by official publications thereof, satisfactorily certified, Ennis v. Smith, 14 How. 400, or by written copies thereof attested by the oath of a United States consul, Church v. Hubbart, 2 Cr. 187. Unwritten foreign laws may be proved by the testimony of experts, Livingston v. M. I. Co., 6 Cr. 274; Ennis v. Smith, 14 How. 400; Pierce v. Indseth, 106 U. S. 546. The courts of the United States take notice, without proof, of the laws of the several states, C. & A. R. v. W. F. Co., 119 U. S. 615, 622; Owings v. Hull, 9 Pet. 607, and

The federal judiciary.

104. The courts of the United States have contributed to the history of the country a chapter which every American citizen can read with pride. The dignity of the judicial office, its security of tenure, and its consequent independence of political dictation and control, have so far compensated for the inadequacy of the salaries that lawyers who might reasonably look forward to lucrative practice have, in many instances, been induced to accept seats upon the federal bench. The judges have been, with scarcely an exception, learned and able lawyers, and their personal characters have given weight to their judgments. They have performed their judicial duties with courage, faithfulness, and intelligence. They have, in general, administered with firmness, and with tact, the extensive jurisdiction of their courts. All that is to be said of the federal judges, in general, can be said, with even greater force, of the successive Chief Justices and Justices of the Supreme Court of the United States. Sovereign states, vast aggregations of capital, and the mass of the people have respectfully bowed to the judgments of that tribunal. No fair-minded man has ever doubted, however much he might be disposed to criticise the result in any particular cause, that the court in arriving at its conclusions had given full consideration to every fact and every argument and had earnestly endeavoured to do justice. The work of the court which has attracted most attention has been in its interpretation of the Constitution. In the performance of that duty the court has had

of the laws governing territory subsequently acquired by the United States, U. S. v. Perot, 98 U. S. 428; Fremont v. U. S., 17 How. 542, 557. But the Supreme Court of the United States, in the exercise of its appellate jurisdiction, does not take judicial notice of the laws of foreign countries, nor of the laws of the several states of the United States, if such laws have not been found as facts in the courts of the first instance, Hanley v. Donoghue, 116 U. S. 1; C. & A. R. v. W. F. Co., 119 U. S. 615, 623.