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In the beginning there was none: Supreme Court review of state criminal prosecutions.

INTRODUCTION

It seems obvious that the Supreme Court must have jurisdiction to engage in direct appellate review of state criminal prosecutions that resolve questions of federal law. Federal questions are ubiquitous in state criminal prosecutions. And given the limits on federal habeas review, direct appellate review of state decisions appears essential for the Supreme Court to exercise its structural function of maintaining the supremacy and uniformity of federal law. Think of cases like Mapp v. Ohio, (1) Miranda v. Arizona, (2) Crawford v. Washington, (3) and Maryland v. King, (4) these are just a handful of the consequential cases decided by the Supreme Court on direct appellate review of state criminal prosecutions over the years. And they are but a tiny sliver of the massively important set of cases in which the Supreme Court has engaged in direct appellate review of a state criminal prosecution. Not only is such review now routine, pervasive, and unquestioned, but it is also almost impossible for anyone to imagine that the Supreme Court ever lacked appellate jurisdiction over such cases. For almost two centuries, indeed, nobody has.

Until now. This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. (5) The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed with the Act. It provided for Supreme Court appellate review of certain state court decisions denying the federal-law-based rights of certain litigants. (6)

The received understanding of section 25, tracing back almost two hundred years and continuing into the present, is that the direct appellate review authorized by Congress in that provision encompassed both civil suits and criminal prosecutions. Professor Akhil Amar, for example, has written that "the Supreme Court was given plenary appellate review, under the famous section 25, over all state court decisions which defeated rights set up by the appellant under the Constitution, laws or treaties of the United States." (7) And Professor John Harrison has written that "Section 25 of the Judiciary Act of 1789 ... provided for federal appellate jurisdiction over state criminal prosecutions in some circumstances." (8)

This consensus understanding of section 25 dates back to the Supreme Court's 1821 landmark decision in Cohens v. Virginia. (9) Virginia prosecuted the Cohen brothers for selling lottery tickets for the congressionally created Grand National Lottery without state law authorization. (10) The Cohens unsuccessfully defended on the ground that the federal statute authorizing the tickets for this lottery preempted the state's authority to regulate their sale. (11) Chief Justice Marshall's issuance of a writ of error pursuant to section 25 provoked a massive jurisdictional battle--one of the most significant controversies to face the Court under Chief Justice Marshall. (12) But that battle was almost exclusively about the Court's jurisdiction under Article III. (13)

The Court held in Cohens, as a constitutional matter, that the Supreme Court had appellate jurisdiction to engage in direct review of state criminal prosecutions that fit within Article III's extension of the federal judicial power to cases arising under federal law. The claim that there was no statutory jurisdiction in Cohens because section 25 did not encompass direct appellate review of state criminal prosecutions by the Supreme Court of the United States was neither raised nor decided in the case. Although the Court had not previously used its statutory authority under section 25 to review a state criminal prosecution in the thirty-plus years between the Judiciary Act of 1789 and the writ of error in Cohens, the Supreme Court's practical extension of section 25 review in that case was almost entirely ignored as a matter of statutory interpretation.

With the exception of a lone constitutional lawyer from Ohio who criticized the decision when it came down, no lawyer, judge, or scholar seriously argued in the wake of Cohens v. Virginia that section 25 of the Judiciary Act did not authorize Supreme Court review of state court criminal prosecutions. The single--and singular--exception was the astute and once eminent (but now obscure) Charles Hammond, who died in 1840. (14) Writing in the immediate aftermath of Cohens, Hammond advanced a civil-only interpretation of section 25 in the tenth essay of a remarkable series of eleven pseudonymous newspaper essays written under the pen name of "Hampden." (15)

Although Hammond stood alone in staking out his civil-only interpretation of section 25 after Cohens, his arguments were not idiosyncratic when considered against the backdrop of what came before. When Congress enacted the Judiciary Act of 1789, there was very little reason for Congress to have contemplated the application of federal law in state criminal prosecutions. There was no Fourteenth Amendment, and incorporation of constitutional rights of criminal procedure was far beyond the horizon. Apart from the prohibition on ex post facto laws, Congress would not have worried about state court circumvention of the Constitution in criminal prosecutions. Just five years prior to Cohens, Justice William Johnson had argued in his separate opinion in Martin v. Hunter's Lessee that the Supreme Court had been given no appellate jurisdiction to review state court criminal prosecutions. (16) But this civil-only interpretation of section 25 simply disappeared after 1821. Justice Johnson abandoned it without explanation in Cohens, everyone ignored Hammond, and Supreme Court practice shifted quickly and irreversibly to include direct appellate review of state court criminal prosecutions under the jurisdiction granted in section 25. Fights over the Supreme Court's appellate jurisdiction to review state court decisions flared up, but they were framed as fights over whether to repeal section 25 or whether section 25 was constitutional, rather than as fights over section 25's correct legal meaning. (17)

Although Hammond's arguments were seemingly stillborn when delivered in the summer of 1821, their continuing vitality should be apparent to lawyers today. This Article resurrects Hammond's arguments and contends that he was right: the best interpretation of section 25 is that it did not encompass Supreme Court appellate review of state criminal prosecutions.

Others may reasonably disagree with this Article's ultimate interpretive conclusion about section 25's limited reach even while acknowledging the strength of the various supporting arguments. Accordingly, this Article's basic claim comes in both a strong version and a weak version. The strong version has already been stated: Section 25's authorization of Supreme Court appellate review of state court decisions was limited to civil suits and did not extend to criminal prosecutions. If this strong version is correct, the Supreme Court should have dismissed Cohens v. Virginia for lack of statutory jurisdiction. (18) The weak version is that the arguments for a civil-only interpretation of section 25 were sufficiently strong at the time of Cohens that the Court permissibly could have dismissed for lack of statutory jurisdiction. Even if not demonstrably compelled by the jurisdictional statute, this disposition would not have required any stretching of it.

This Article proceeds in three parts. Part I sets out the basic arguments from text and context that support a civil-only interpretation of section 25. Part II addresses the strongest objections. And Part III explores the broader significance of the surprising rediscovery of civil-only section 25.

There is no need to prolong this introduction with previews of Parts I and II, which one can find at the opening of those Parts. But it is useful to say more right here about Part III--why these arguments matter. After all, section 25 no longer governs. The current statute governing Supreme Court review of state decisions plainly encompasses both civil and criminal cases. (19) And Congress will never take away that authority. Indeed, there are arguments tending to establish that Congress would not even constitutionally be able to do so if it wanted to.

Interestingly enough, those arguments about the limits of congressional control over federal court jurisdiction provide the first of several reasons why a civil-only understanding of Section 25 still matters. A standard form of argument about congressional control over federal jurisdiction is based on correspondence or lack of correspondence between the Judiciary Act of 1789 and Article III. The extent of congressional control over federal jurisdiction is precisely what Professor Amar and Professor Harrison were arguing about in the articles quoted above on the reach of section 25. Professor Amar and others have argued that Article III mandates federal jurisdiction in original or appellate form in certain types of cases, (20) while Professor Harrison and others have argued the Article III is not mandatory. (21) Insofar as the first Congress is taken to be an authority on constitutional meaning--itself a contested issue--those who argue for a mandatory theory of Article III need to contend with the gap between what they say Congress was constitutionally required to authorize and what the first Congress actually did authorize. If the strong version of this Article's claim is correct, then this gap is larger and more significant than anyone until now has thought. (22)

Chief Justice Marshall's perspective on the Judiciary Act of 1789 in Cohens v. Virginia supplies an additional reason for believing it worthwhile to get a better fix on the meaning of this foundational statute. The non-controversial existence of section 25 appellate review generally, he claimed in Cohens, is reason to think that Supreme Court appellate review of state court decisions on questions of federal law is constitutionally authorized. (23) Marshall did not think the first Congress infallible, as evidenced by his opinion for the Court in Marbury v. Madison holding section 13 of the Judiciary Act of 1789 partially unconstitutional. But he did understand the first Judiciary Act as "[a] contemporaneous exposition of the constitution" of no less authority than the Federalist Papers--which, he also said in Cohens, have "always been considered as of great authority." (24)

The path trod in this article is Chestertonian; it proceeds from the view that "[t]he whole object of travel is not to set foot on foreign lands; it is at last to set foot on one's own country as a foreign land." (25) Traveling the land of federal jurisdiction through the dense underbrush of the text of section 25 brings one back to the familiar words of Article III, but now bearing a new appreciation for the difficult problems they pose. Careful parsing of the precise and detailed language of the Judiciary Act of 1789 provides insight into the jurisdictional thinking not only of the first Congress but also more broadly of the legal world in which Article III was ratified. Appreciating how Congress very well may have actually structured the federal judiciary differently than is now commonly thought that Congress did enables insight into how Article III may have been liquidated differently than it ultimately was. Indeed, if the Judiciary Act of 1789 did not authorize Supreme Court appellate review of state criminal prosecutions, and if this had been recognized in Cohens, the Court would not have had occasion to resolve various tensions in Article III as it did. Article III doctrine may have developed dramatically differently than it did due to Cohens. And this recognition, in turn, helps those who wish to understand what Article III was before it became what it now is. To paraphrase Chesterton, "the only way to go to [Article III] is to go away from it." (26)

Reflecting on the weak version of this Article's claim also illuminates the nature of the Marshall Court's judicial nationalism. Once we see that no statutory jurisdiction over criminal prosecutions was an easily available option for the Supreme Court in Cohens v. Virginia, we can ask: Why was this a road not taken? The obvious answer is that such a holding would have been entirely unsatisfactory for a Court that was to play the strong role as the voice of the Constitution and of the American people that Chief Justice Marshall and his brethren envisioned in Cohens. If the Court had held that the Constitution authorized jurisdiction but Congress had not provided it, there was no way that Congress would have provided that jurisdiction any time soon. Yet the Court needed jurisdiction that it could use in the present--even when doing so would result in rulings that were likely to be disobeyed or ignored.

In the end, Cohens v. Virginia is a masterpiece of judicial craftsmanship that has so powerfully shaped subsequent thinking about federal jurisdiction that lawyers, judges, and scholars today cannot help but take its correctness for granted. The opinion so persuasively elaborates Chief Justice Marshall's constitutional vision for direct appellate review of state courts by the Supreme Court that the more limited congressional vision that may actually have been embedded in section 25 has been buried and forgotten. If nothing else, then, disinterring the arguments for civil-only section 25 provides a better understanding of the materials that the Supreme Court's greatest judicial craftsman had to work with in Cohens v. Virginia.

And yet there is something else. The strongest reason for believing that the correct interpretation of section 25 still matters now is that interpreting this foundational provision correctly matters, period. Judicial and scholarly understandings of the federal judicial power rely on claims about the original legal meaning of Article III and the Judiciary Act of 1789. And this Article's inquiry into the original legal meaning of section 25 takes the conventional approach of inquiring how a reasonable lawyer versed in the Constitution, laws, and background legal principles of the time would have understood this provision. (27) The departure from existing scholarship is not in method but in result. Until this Article, scholars of federal jurisdiction have uniformly understood section 25 as encompassing both civil and criminal cases. But if the strong version of this Article's basic claim is right, that until now uniform understanding is wrong. New editions of old books will need to be revised to account for this interpretation, as will all accounts of the Judiciary Act of 1789 going forward. And that is so even if many scholars ultimately accept only the weak version of this Article's basic claim. The arguments for civil-only section 25 simply cannot be ignored by anyone seeking to understand the establishment and development of federal jurisdiction.

I. ARGUMENT

This part sets forth the affirmative case for civil-only section 25 as a matter of statutory interpretation. The argument is primarily textual. But while the analysis that follows proceeds through the text piece by piece, it is important to keep in mind how these pieces fit together, as well as how section 25 fits with the rest of the Judiciary Act of 1789 and within the legal universe of the late eighteenth and earlier nineteenth centuries. Before turning to elaboration of each part of the argument, then, it is helpful to begin with an outline of its main pieces.

The first feature of section 25 discussed below is that it provided for a writ of error in "any suit," not "any case" or "any suit or prosecution." As used elsewhere in the Act and as used by the same Congress, "suit" referred to civil cases only. The Constitution, by contrast, used the broader term "case" to encompass both civil suits and criminal prosecutions. And when Congress wanted to refer to criminal prosecutions, it used "prosecution" or "proceedings" in addition to (or as an alternative to) "suit."

Second, the writ of error was available only once a suit has reached final judgment "in the highest court of law or equity of a State in which a decision in the suit could be had...." (28) At its broadest, this language authorizes the Supreme Court to review even those cases--like Cohens itself--in which the state system provided no appeal at all. This language invites consideration of the jurisdictional landscape for appeals in criminal prosecutions, which looked quite different in the late eighteenth and early nineteenth centuries than it looks today. There were no intrastate appeals in many criminal cases; there was no Supreme Court appellate review in any federal criminal cases; there was no Supreme Court appellate review in criminal cases coming out of the D.C. courts; and there was no Supreme Court appellate review in criminal cases coming out of territorial courts. Against this backdrop, it is conceivable that section 25 nevertheless authorized Supreme Court appellate review of state criminal prosecutions. But it is unlikely that section 25 would have passed without substantial critical commentary on this point--as it did--if Congress had provided such appellate jurisdiction.

Third, section 25 provided that the writ of error shall be issued in state court cases "in the same manner and under the same regulations" as in cases from the federal circuit courts. (29) Yet writs of error could not be issued to circuit courts in criminal prosecutions, and were limited in civil suits by an amount-in-controversy requirement. As late as 1816, a Justice of the Supreme Court described state criminal cases as beyond the reach of the Supreme Court, and other evidence from this time also reveals a belief that section 25's "under the same regulations" language incorporated the amount-in-controversy requirement applicable in cases appealed from the circuit courts. Even though the Supreme Court held in 1825 that section 25 did not incorporate this requirement, the Supreme Court (seemingly unaware of this earlier decision) later interpreted identical "in the same manner and under the same regulations" language to foreclose Supreme Court appellate review of criminal cases from territorial courts.

Fourth, section 25 authorized the Supreme Court itself to award execution of judgment under certain conditions. But the Court was not granted authority to order a new trial or authorized to issue compulsory process against state courts, which would have been essential to ensuring execution of judgments of reversal in criminal cases.

These textual features, singly and together, provide strong support for a civil-only understanding of section 25. That understanding comports with important and widespread differences in the availability of appellate review in civil and criminal cases in the late eighteenth and early nineteenth centuries. And as we shall see, a civil-only understanding of section 25 is consistent with both the legislative history of the Act and its pre-Cohens reception.

A. "any suit"

Section 25 authorized Supreme Court appellate review via writ of error in "any suit, in the highest court of law or equity," if the state court hearing the suit decided a question of federal law against the party relying on federal law. (30) In light of section 25's limited reach to a subset of state court resolutions of federal law questions, Congress probably understood this provision to be authorized by Article III's extension of federal judicial power to "all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority." (31) The first observation to make about section 25's potential reach to criminal cases, then, is that the statutory language of "any suit, in the highest court of law or equity" is different from, and seemingly narrower than, the constitutional language of "all cases, in law and equity." (32)

The case for understanding "suits" as distinct from "cases," and thus not extending to include criminal prosecutions, takes its bearings from the only contemporaneous critical commentary about Cohens v. Virginia research has revealed that addressed section 25's extension to criminal prosecutions. This is "Essay X" of Charles Hammond's "Hampden" essays on Cohens. (33) One of Hammond's lead arguments for a civil-only interpretation of section 25 was that "suit" in section 25 does not include criminal cases. (34) Although Hammond did not break it down in precisely this fashion, this argument about the meaning of "any suit" comes in an ordinary meaning and an intratextual variety. The ordinary meaning argument is that "[t]he term suit is not ordinarily used to describe a public prosecution." (35) The intratextual argument is that, in every other part of the Judiciary Act of 1789, "the term suit is used in reference to a civil and not a criminal proceeding." (36)

Before turning to the intratextual evidence and then to other evidence of how Congress used "suit" in section 25, it is important to acknowledge that there is one inclusive but uncommon meaning of "suit" that encompasses both civil and criminal matters. Both this broad meaning and the more ordinary, civil-only meaning can be seen in Blackstone's Commentaries on the Laws of England. Blackstone divided his two books on "wrongs" between "private wrongs" (Book III) and "public wrongs" (Book IV). (37) Book III is largely devoted to the "redress of private wrongs, by suit or action in the courts." (38) Book IV, by contrast, studies the criminal law, or what Blackstone called the "pleas of the crown" because the king "is supposed by the law to be the person injured by every infraction of the public rights belonging to [the] community, and is, therefore, in all cases, the proper prosecutor for every public offense." (39) Blackstone's discussion of the various processes for enforcing the criminal law is titled "Of the Several Modes of Prosecution." (40) There is some overlap between the idea of "suit" and "prosecution," as Blackstone describes processes like indictment and presentment as "methods of prosecution at the suit of the king," (41) and he also uses the phrase "criminal suit" in describing a prosecution initiated by information. Moreover, Blackstone notes that one method of enforcing certain penal statutes was a qui tarn "suit," in which an informer would bring "suit" to recover a penalty or portion of a penalty due for the commission of a public wrong. (42) But despite the possibility of a broad use of "suit" to include the idea of a "criminal suit," the much more common term for actions to enforce criminal laws in Blackstone's Commentaries is "prosecution." And the claim of this Section is that, although it is conceivable that Congress used "suit" inclusively to extend to criminal prosecutions as well as civil cases, the better conclusion is that Congress used the word to encompass civil cases only.

We begin, then, with the intratextual evidence, which provides strong but not unequivocal support for a civil-only meaning of "suit" in section 25. The strongest intratextual evidence comes from section 35 of the Act, which distinguishes "suits" from "prosecutions" in describing the office of United States Attorney. (43) As used in this part of section 35, "suits" corresponds to "civil actions" while "prosecutions" refers to "crimes and offences." (44)

The next strongest intratextual evidence comes from sections 12 and 31. Each of these sections appears to use "suit" to encompass civil cases alone. Section 12 provides for removal of "a suit ... commenced in any state court against an alien, or by a citizen of the state in which the suit is brought against a citizen of another state, and the matter in dispute exceeds the aforesaid sum or value of five hundred dollars." (45) The imposition of an amount-in-controversy requirement provides a strong indication that this language encompasses only civil cases. (46) The remainder of the provision augments the strength of this supposition, requiring "surety" (in all cases) and "special bail" (in some cases), and setting forth the effect of "any attachment of the goods or estate of the defendant by the original process." (47) All of these procedural requirements suggest a limitation to civil cases. (48) As the Pennsylvania Supreme Court unanimously opined when interpreting this section in 1798,
   although the word 'suit' is used generally in the 12th section,
   without expressing the words 'of a civil nature,' yet the slightest
   consideration of what follows, manifestly shews that no other suit
   was meant; for the matter in dispute must exceed five hundred
   dollars in value, special bail must be given, &c. terms applicable
   to actions of a civil nature only. (49)


Section 31 provides for substitution of an executor or administrator "where any suit shall be depending in any court of the United States, and either of the parties dies before final judgment," and the action survives. This provision uses "suit" to encompass civil cases only, for the prosecuting party in a criminal prosecution is not a natural person who can die (and therefore needs to be replaced), while the death of a criminal defendant terminates the prosecution (rather than resulting in continuation against a substitute).

The remaining intratextual evidence about the meaning of "suit" is mixed. But nothing plainly contradicts Hammond's claim that, all throughout the Judiciary Act, "the term suit is used in reference to a civil and not a criminal proceeding." (50)

The strongest contrary textual argument is the use elsewhere in the Act of phrases such as "civil suit" and "suit of a civil nature." (51) The presence of these civil-only modifiers could suggest that, in their absence, "suit" would encompass not only civil suits and suits of a civil nature but also criminal suits or suits of a criminal nature. (52) There is also one candidate for the Judiciary Act's use of "suit" unmodified to include both civil and criminal cases. This is the use of "suit" at the end of section 9, which sets forth the original jurisdiction of federal district courts. Among other things, section 9 provided for exclusive district court jurisdiction over "crimes and offences" carrying punishments below certain levels, as well as "all suits against consuls or vice-consuls, except for offences above the description aforesaid." (53) The carve out from "all suits" of "offences" that carried a heavier punishment than those described earlier in the section suggests that "all suits" might otherwise encompass "all offences" in the absence of a carve out. (54)

Another intratextual comparison to note is the contrast between section 22's description of those circuit court cases the Supreme Court could review and section 25's description of those state court cases the Supreme Court could review. Section 22 authorizes review of "final judgments and decrees in civil actions, and suits in equity in a circuit court," (55) while section 25 authorizes review of "a final judgment or decree in any suit, in the highest court of law or equity of a State in which a decision in the suit could be had." (56) One might argue that the transition in section 25 to "final judgment or decree in any suit" is designed to encompass more than "civil actions." (57) There is admitted force to this argument. But one might respond that the more relevant contrast is between section 25's "any suit, in the highest court of law or equity," and section 22's "suits in equity in a circuit court," such that section 25 expands the category of suits beyond equity rather than draws on a contrast between the narrower formulation "civil action" and the allegedly broader formulation "any suit."

In the end, there is only so much that one can make out from the intratextual evidence. When one casts a broader net in search of the ordinary meaning of the term at the time, however, one sees that "suit" was not ordinarily used to describe a criminal prosecution. That is, one would not have typically described a proceeding initiated by indictment in 1789 as a suit. In this respect, not much has changed. No state prosecutor now will be overheard talking about a prosecution as a "suit."

Several scholars have previously contended that the distinction in Article III between the use of "cases" and "controversies" signals a difference between the broader category of "cases" that included both criminal and civil actions and the narrower civil-only category of "controversies." (58) Less well known, however, is a similar distinction between "cases" and "suits." This distinction appears in Judge Edmund Pendleton's opinion in the 1782 Virginia case of Commonwealth v. Caton. (59) This case involved interpretation of a jurisdictional statute with three branches. The first branch used the term "suits," the second used "controversy" (and also included an amount-in-controversy requirement), while the third used "cases." Judge Pendleton reasoned that "[i]n the two first branches, the terms suits and controversies are used, in terms proper to describe disputes between litigant parties, and would seem to exclude criminal cases.... But, in the third branch, those terms are dropt, and the more general one of cases adopted." (60) According to Pendleton, this more general term "cases" included both civil and criminal matters. (61)

This civil-only meaning of "suit" appears not only in the Judiciary Act, but also in the provisions that became the Sixth and Seventh Amendments, which were proposed for ratification by Congress one day after the Judiciary Act. The Sixth Amendment applies " [i]n all criminal prosecutions." (62) The Seventh Amendment, by contrast, applies "[i]n [s]uits at common law, where the value of the controversy shall exceed twenty dollars." (63) The Sixth Amendment covers criminal cases, while the Seventh Amendment does not. And a few years later, Congress used "suit" to encompass civil cases only when it drafted the language that became the Eleventh Amendment. That Amendment, which is an instruction about how to construe the jurisdictional grants in Article III, applies to "any suit in law or equity." Its phrase "any suit" encompasses only civil cases, because the Eleventh Amendment's prohibition covers suits only if "commenced or prosecuted against one of the United States by [c]itizens of another [s]tate, or by [c]itizens or [s]ubjects of any [f]oreign [s]tate." (64)

Another civil-only usage of "suit" to consider from the first Congress appears in the Process Act of 1789. In the Process Act, Congress generally provided that federal courts would adopt state procedures in "suits at common law." The Process Act, however, was not taken to regulate federal court procedure in federal criminal prosecutions. (65)

A final important civil-only usage of "suit" to consider is in the first federal officer removal statute, which was enacted in 1815. Congress enacted this law "to extend the Judiciary Act of 1789 to ensure enforcement of the federal customs laws in the face of [state court] decisions misconstruing federal law." (66) Although the problems behind the passage of this law were limited to civil cases, Congress provided for removal of both "suits" and "prosecutions." (67) Congress plainly used "prosecutions" to mean criminal prosecutions, as is evident from its prohibition on the state appealing an acquittal of a defendant in state court. (68) A reasonable inference is that "suits" alone would have been limited to civil cases.

B. "in the highest court of law or equity of a state in which a decision in the suit could be had"

The next chunk of statutory text to consider limits the state court suits in which a writ of error is available from the Supreme Court of the United States to those suits in which there has been a final judgment or decree "in the highest court of law or equity of a state in which a decision in the suit could be had." (69) This provision ensures that the suit has received the fullest consideration available in the state system before the questions of federal law at issue in the suit become eligible for Supreme Court review. The provision had to be worded as it was because Congress recognized that different kinds of suits would receive different levels of consideration in the various state systems. While the wording is inclusive, it is also a pointer toward Congress's awareness of the diversity of systems for appellate review in the states. And many of those systems provided very limited appellate review in criminal cases.

The first clue that criminal cases stand differently from civil cases with respect to appeals comes from a feature of Cohens v. Virginia that sometimes puzzles people coming to the case for the first time today. That is the identity of the court from which the case came to the Supreme Court--the quarterly session court for Norfolk, Virginia. (70) Virginia law did not then provide for any appellate review of that court's decision to fine the Cohen brothers $100 plus expenses. While it is certainly possible that Congress drafted section 25 to provide for cases to proceed directly to the Supreme Court in this fashion, it is worth pausing over this feature of Cohens to consider how much of an outlier the sort of inter-system appellate review performed in that criminal prosecution was when viewed together with other state and federal provisions limiting appellate review in criminal prosecutions.

Today's interpreters inhabit a world in which Supreme Court appellate review of criminal matters from both federal and state courts is routine. But states in the late eighteenth century varied significantly in their respective approaches to appellate review in criminal cases, and the absence of as-of-right appellate review in some state systems was consistent with the limited availability of appellate review at common law. Moreover, the Judiciary Act of 1789 did not provide for Supreme Court appellate review of federal criminal cases; the D.C. Organic Act did not provide for Supreme Court appellate review of criminal cases from the D.C. circuit courts either; and Congress later followed the same pattern of not authorizing Supreme Court appellate review of criminal cases decided in territories. (71)

The lack of any intra-system appellate review in Virginia was noted shortly after the decision in Cohens, albeit for a different purpose. In later criticism of the Supreme Court decision, one of Chief Justice Marshall's most relentless critics, Judge Spencer Roane of Virginia, charged in one of his pseudonymous essays in the Richmond Enquirer that the path of the case from the borough court straight to the Supreme Court showed that the case was "feigned" in some way. (72) Taking note of this criticism, Chief Justice Marshall wrote a few days later to the Supreme Court's reporter, Henry Wheaton, asking him to add a footnote to the reported case stating that an appeal had been sought and refused. (73) He wrote to Wheaton that
   I hope it is not too late to make an asterisk at that part of the
   opinion which states it to be the judgment of a court of the last
   resort & insert in a note some such words as these, "Cohens prayed
   an appeal from this judgement but it was refused on the principle
   that there was no higher tribunal which could take cognizance of
   the case." (74)


Wheaton inserted the footnote as requested. (75)

While the Chief Justice's quick response to newspaper criticism of the opinion is interesting in its own right, the more notable feature of this episode for present purposes is to highlight the disjunction between the state and federal systems in providing for appellate review. If section 25 reached criminal prosecutions like this one, then it provided for greater inter-system review than was provided on an intra-system basis in Virginia itself. As far as research has revealed, however, this disjunction was not deemed worthy of comment at the time of enactment or in the lead up to or the aftermath of Cohens. Perhaps this was due to a belief that state prosecutions presented a need for Supreme Court (or some other federal court) review that federal criminal prosecutions did not present because federal criminal prosecutions already took place in a federal court. Or maybe everyone's attention was focused on constitutional jurisdiction instead of statutory jurisdiction.

The absence of intra-system appellate review for the Cohen brothers' conviction and fine in Virginia was not a quirk of that Commonwealth's law. Although the differing structure of state judiciaries (both synchronically and diachronically) makes deep generalizations about state practice in the late eighteenth century difficult, (76) appellate review had long been limited in criminal matters. At common law, a writ of error was generally available for misdemeanor convictions but not available as of right for felony convictions. (77) And as Hammond noted in his Hampden essays, Virginia was not the only state that followed "the policy of restricting the operation of writs of error, in prosecutions for offences against the state." (78) Finally, even when a criminal defendant could obtain a writ of error for state court appellate review, that review was much more limited than in appeals today. Writ of error review did not encompass any factual questions and was limited to certain legal defects appearing on the face of the record. (79)

Section 25's provision for review via writ of error, rather than an appeal (which would have allowed for reconsideration of questions of both fact and law), was a response to concern about the ability of the Supreme Court to revisit factual as well as legal questions. The Seventh Amendment's Reexamination Clause also addresses this concern by providing that, in certain suits, "no fact tried by a jury shall be otherwise re-examined in any [c]ourt of the United States, than according to the rules of the common law." (80) But while the Seventh Amendment was proposed by the same Congress that enacted the Judiciary Act of 1789, it was only a proposal that had yet to be ratified.

Interestingly, the Sixth Amendment contains no provision about appellate review analogous to the Seventh Amendment's Reexamination Clause. The explanation cannot be that people were worried about Supreme Court appellate reexamination of fact only in civil cases; if the Court could exercise appellate jurisdiction over criminal prosecutions, the same worries would have been expressed. A more likely explanation is the anticipated absence of federal appellate review in federal criminal prosecutions, at least under the Judiciary Act of 1789. (81) Whatever the reason for this difference between the Sixth and Seventh Amendments--namely, that only the Seventh addresses a concern about appellate review--the different treatment is consistent with different approaches to appellate review in civil and criminal cases at the time more generally.

Although Cohens is an odd case because it provided for federal intersystem appellate review when there was no state intra-system appellate review, that is not the only oddity about the case. Another unusual feature of Cohens is that the Supreme Court used section 25 to engage in federal inter-system appellate review in a category of case--criminal prosecutions--for which there would have been no federal intra-system appellate review. In fact, an important civil/criminal distinction that runs through the Judiciary Act of 1789 is its provision for federal intra-system appellate review by the Supreme Court of some civil cases but no criminal cases.

Section 22 of the Act explicitly authorized Supreme Court review of "final judgments and decrees in civil actions, and suits in equity in a circuit court," subject to a two thousand dollar amount-in-controversy requirement. (82) There is no explicit provision in the Act one way or the other for writs of error with respect to federal circuit court criminal cases. (83) But the Supreme Court determined in 1805 that section 22's "affirmative description of [the Court's powers] must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described." (84) Later explaining the Judiciary Act of 1789's denial of Supreme Court appellate review in federal circuit court criminal cases, Justice Story wrote that "the denial of this authority proceeded upon great principles of public policy and convenience. If every party had a right to bring before this Court every case, in which judgment had passed against him, for a crime or misdemeanor or felony, the course of justice might be materially delayed and obstructed, and, in some cases, totally frustrated." (85)

Given the absence of Supreme Court appellate review of federal circuit court criminal cases and the limited availability of appellate review by a state's highest court in state criminal cases, it is perhaps unsurprising that Congress in 1801 did not provide for Supreme Court appellate review of criminal cases when it first created the new circuit court for the District of Columbia. The D.C. Act gave the newly created circuit court for the District of Columbia cognizance of "all crimes and offences" committed in the district, "all cases in law and equity" involving at least one district resident, "all actions or suits of a civil nature at common law or in equity" in which the United States were "plaintiffs," and "all seizures on land or water, and all penalties and forfeitures made, arising or accruing under the laws of the United States." (86) The D.C. Act further provided that the Supreme Court could engage in appellate review (via writ of error or appeal) of "any final judgment, order or decree in said circuit court, wherein the matter in dispute, exclusive of costs, shall exceed the value of one hundred dollars." (87)

Although there was no statutory language explicitly confining this appellate review to civil cases, the Supreme Court soon held that the appellate jurisdiction granted by the D.C. Act was "confined to civil cases." (88) On behalf of a unanimous Court, Chief Justice Marshall explained in United States v. More that for Congress to provide for appellate jurisdiction in this one class of cases was to exclude appellate jurisdiction in cases not mentioned: "as the jurisdiction of the court has been described, it has been regulated by congress, and an affirmative description of its powers must be understood as a regulation, under the constitution, prohibiting the exercise of other powers than those described." (89) Marshall next elaborated this principle with the example of section 22 of the First Judiciary Act, discussed above. Section 22 authorized the Supreme Court to issue a writ of error in federal circuit court cases in which the amount in controversy exceeded two thousand dollars. Marshall stated that Congress's grant of authority to review cases above that amount implied the denial of authority to review cases below that amount even though "[t]here are no words in the act restraining the supreme court from taking cognizance of causes under that sum." (90) Marshall next enunciated the interpretive principle that "[t]his court, therefore, will only review those judgments of the circuit court of Columbia, a power to reexamine which, is expressly given by law." (91) Appellate jurisdiction over D.C. circuit court criminal cases was not "expressly given by law," Marshall concluded, because "[t]he words, 'matter in dispute,' seem appropriated to civil cases." (92) He explained that, "in criminal cases, the question is the guilt or innocence of the accused. And although he may be fined upwards of 100 dollars, yet that is, in the eye of the law, a punishment for the offence committed, and not the particular object of the suit." (93)

Although the foregoing context about limited availability of appellate review in criminal cases supports a civil-only interpretation of section 25, one could argue that the inclusive language discussed in this section actually cuts strongly the other way. The argument would be that this obviously inclusive language was used precisely so that there would be Supreme Court appellate jurisdiction over categories of cases like criminal prosecutions in which states did not provide for appellate review. (94) This is a powerful argument, to be sure, but in support of an inference about criminal prosecutions, it runs into Congress's use of "prosecutions" in addition to "suits" when Congress specifically intended to include criminal prosecutions (in section 35) as well as the arguments against inferring inclusion of criminal prosecutions from silence about them. (95)

C. "under the same regulations ... as if the judgment or decree complained of had been rendered or passed in a circuit court"

The Supreme Court's treatment of the D.C. court amount-in-controversy requirement in United States v. More provides a window into the meaning of section 25's language providing for the issuance of a writ of error "in the same manner and under the same regulations ... as if the judgment or decree complained of had been rendered or passed in a circuit court." As previously noted, the Judiciary Act of 1789 nowhere authorized the Supreme Court to issue a writ of error to a federal circuit court in a criminal case. And with respect to Supreme Court appellate review of civil cases in the federal circuit courts--addressed in section 22--Congress provided a two thousand dollar amount-in-controversy limitation. As More instructs, such a limitation is a "regulation" of jurisdiction. The question then becomes: Did Congress incorporate section 22's amount-in-controversy requirement into section 25 by means of the requirement that writs of error be issued to state courts "under the same regulations" as to circuit courts?

The idea that section 25's "under the same regulations" language may have incorporated section 22's amount-in-controversy requirement does not appear to have been addressed by anybody since the 1820s. As a doctrinal matter, the Supreme Court killed the idea in its 1823 decision of Buel v. Van Ness. (96) The Supreme Court held in Buel that section 25's "in the same manner, and under the same regulations" language did not incorporate the amount-in-controversy limitation of section 22. (97) Writing for the Court, Justice Johnson stated that incorporating section 22's amount-in-controversy limitation into section 25 via the "same regulations" language of that provision ignores the context of this language:
   It is obvious from the context, as well as from its ordinary
   meaning and use, that its proper bearing is altogether confined to
   the writ of error, citation, &c. to be issued in a case which has
   been before fully defined, and not that it should itself enter into
   the descriptive circumstances by which those cases are to be
   identified, to which the appellate jurisdiction of the Court is to
   be extended. (98)


Justice Johnson also appealed to the different purposes of section 22 and section 25: "Questions of mere meum and tuum, are those to which the 22d section relates; but those intended to be provided for by the 25th section, are noticed only for their national importance, and are deemed proper for an appellate tribunal, from the principles, not the sums, that they involve." (99)

Justice Johnson's reasoning in Buel has some force to it. But it is more persuasive with respect to "same manner" than "same regulations," and it is far from conclusive. Even though section 22 and section 25 admittedly have somewhat different purposes, Justice Johnson's opinion in Buel does not address just which "regulations" from section 22 are incorporated by section 25's language if not the amount-in-controversy requirement. Consider, for example, the requirement for the justice signing the writ of error to "take good and sufficient security, that the plaintiff in error shall prosecute his writ to effect, and answer all damages and costs if he fail to make his plea good." (100) Is this a regulation of jurisdiction incorporated from section 22 into section 25? If so, how would it apply in a criminal case?

Consider, also, Justice Johnson's separate opinion in Martin v. Hunter's Lessee, decided just five years before Cohens. In that case, Justice Johnson explicitly differentiated between the Supreme Court's ability to review state court decisions in civil cases and in criminal cases. Although agreeing with the rest of the Court that section 25 authorized the Supreme Court to engage in appellate review via writ of error to state courts in civil cases, Johnson stated that " [t] he courts of the United States are vested with no power to scrutinize into the proceedings of the state courts in criminal cases." (101) He observed that "[a]t present the uncontrollable exercise of criminal jurisdiction is most securely confided to the state tribunals." (102) Justice Johnson's opinion seemingly left open the possibility that such jurisdiction would be within the constitutional power of Congress to grant, but he wrote that " [a] t present it is only necessary to vindicate the laws which [the general government has] passed affecting civil cases pending in state tribunals." (103) Neither in Cohens nor in Buel (nor anywhere else uncovered by research) does Justice Johnson explain how his views about Supreme Court jurisdiction to engage in appellate review of state court criminal prosecutions had changed between 1816 and 1821. Nor has anyone else offered an argument justifying Justice Johnson's switch.

Justice Johnson was not alone in his 1816 civil-only understanding of section 25. Writing to the Chairman of the House Ways and Means Committee near the end of 1814, Alexander Dallas--the first (unofficial) Supreme Court reporter, Secretary of the Commonwealth in Pennsylvania from 1791 to 1801, United States Attorney in the Eastern District of Pennsylvania from 1801 to 1814, Secretary of the Treasury from 1814 to 1816, and acting Secretary of State and Secretary of War for several months in 1815--went even further than Johnson in a civil-only understanding of section 25. Dallas expressly interpreted section 25 to incorporate section 22's two thousand dollar amount-in-controversy requirement. This issue was important to Dallas because he was seeking legislation that would authorize removal of certain actions from state court into federal court. The immediate problem that Dallas needed removal authority to address was difficulty enforcing federal revenue laws in Vermont. As Dallas explained, the general powers of federal revenue officers to deal with smuggling were limited, and those powers were
   rendered still more inadequate by the terror which the officers now
   feel, of being exposed to suits for damages, under the authority of
   recent decisions in the courts of law; for it has been adjudged in
   Vermont, that the inspectors of the customs are not authorized, in
   any case, to make seizures, and that actions may be maintained
   against them, to recover the whole value of the property seized,
   even when the property itself has been duly condemned, as forfeited
   by law. (104)


In explaining why new removal authority was necessary, Dallas described existing legal protections as inadequate. Among those legal protections was Supreme Court appellate review via writ of error, but as Dallas described this provision, "the matter in dispute must exceed the value of two thousand dollars, exclusive of costs." (105)

Although Dallas's reading of section 25 differed from the reading eventually adopted by the Supreme Court in Buel, his apparent understanding of the legal effect of "under the same regulations" language was vindicated in a later decision by the Supreme Court involving that same language in a different statute. We have already seen that Congress did not provide for Supreme Court appellate review of federal criminal cases or criminal cases in the D.C. courts. Congress followed the same pattern when it provided for Supreme Court authority to issue writs of error to territorial courts (as in Utah, Washington, and Montana, for example). The jurisdictional statutes for the territories, like the jurisdictional statute for the District of Columbia, provided that the Supreme Court was to review the judgments and decrees of these courts "in the same manner and under the same regulations" provided as to the final judgments and decrees of the federal circuit courts. (106) In the 1889 case of Farnsworth v. Montana, the Supreme Court interpreted this language to encompass the amount-in-controversy regulations, which in turn excluded criminal cases from review:
   In all these prior statutes ... it was said that this court was to
   review the judgments and decrees "in the same manner and under the
   same regulations" provided as to the final judgments and decrees of
   a Circuit Court. These prior provisions are not repealed, and no
   jurisdiction ever existed in this court to review by writ of error
   or appeal the judgment of a Circuit Court in a criminal case. (107)


In deciding Farnsworth in 1889, the Supreme Court seemed to be unaware of its decision more than six decades earlier in Buel v. Van Ness. Consequently, the Court did not attempt to square its straightforward reading of "in the same manner, and under the same regulations" in the territorial jurisdictional statute with its earlier contrary reading of the same language in section 25.

Farnsworth's holding regarding the absence of Supreme Court review of territorial criminal cases may be surprising to constitutional lawyers today whose familiarity with territorial cases comes primarily from the Supreme Court's 1878 decision in Reynolds v. United States. (108) After all, the Supreme Court decided Reynolds on a writ of error to the Supreme Court of the Territory of Utah in a criminal prosecution for violating a federal bigamy prohibition. (109) If the Supreme Court did not possess authority to issue writs of error in criminal cases arising out of the territories, one might wonder how it had authority to decide Reynolds. As it turns out, Congress had enacted a special jurisdictional statute authorizing review of certain criminal cases from Utah, namely those "where the accused shall have been sentenced to capital punishment, or convicted of bigamy or polygamy." (110) Absent that statute, the Supreme Court could not have addressed the Free Exercise Clause issue that it decided in Reynolds. In the later-decided case of Snow v. United States (which involved cohabitation, but not bigamy or polygamy), the Supreme Court explained that this special jurisdictional provision was inapplicable and the Court was otherwise unauthorized to exercise jurisdiction to review a criminal prosecution. (111)
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Title Annotation:Introduction through I. Argument C. "Under the Same Regulations ... as if the Judgment or Decree Complained of Had Been Rendered or Passed in a Circuit Court", p. 1867-1891
Author:Walsh, Kevin C.
Publication:Notre Dame Law Review
Date:May 1, 2015
Words:8841
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