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Page:Harvard Law Review Volume 1.djvu/316

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the long-threatened appeal to the Supreme Court of the United States, and, on October 21, 1887, counsel for the accused petitioned the full bench for a writ of error to the Supreme Court of Illinois, on the ground that the judgment of that court—the highest State tribunal—denied the accused rights secured to them by the Constitution of the United States.

In order to give the Supreme Court jurisdiction of such a writ of error it is necessary that the record shall show that a federal question was raised, and that the State court decided it adversely to the right claimed; and to constitute a federal question it must appear that there is, in the words of the Revised Statutes, section 709, “A final judgment or decree in any suit in the highest court of a State, in which a decision in the suit could be had, where is drawn in question the validity of a treaty or a statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of their validity; or where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty or statute of, or commission held or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity specially set up or claimed, by either party, under such Constitution, treaty, statute, commission, or authority;” if there is, such final judgment or decree “may be reëxamined and reversed or affirmed in the Supreme Court.”

In courts of limited jurisdiction, as are those of the United States, the facts requisite to give jurisdiction must appear affirmatively on the record; it is not enough that no objection is made; unless the facts plainly appear the court has no authority to pass upon any point raised, and will, of its own motion, if necessary, dismiss the case. In such a court, therefore, the primary question must always be whether the case shown is one of which it has cognizance; whether any question is presented which under its delegation of power it has a right to decide; and when this preliminary point is disposed of, the court may, and must, in the fulfilment of its solemn duties, proceed either to decide the question, if any there is, thus properly brought before it, or dismiss the whole cause as one not cognizable by it.