under the Constitution, laws or treaties of the United States. In a characteristically able opinion, MR. JUSTICE MILLER, speaking for the Supreme Court, held, however, that in this respect the Act of 1867 was as limited as that of 1789.2 The Supreme Court will pass upon such errors of law only as the State Court is said to have committed with reference to the Federal question. Even where the case below is in equity, the interposition of the Supreme Court is obtained by writ of error and not by appeal, and questions of law only are open for review.3 518. If any Other Issue Adjudged by the State Court is Sufficient to Sustain its Judgment, the Supreme Court will not Reverse, No Matter How the Federal Question was Decided.-The Federal question may not be the only one at issue. Usually it is not. The party who denies the Federal right asserted by his adversary may say that he is entitled to a judgment even if his view of the Federal question is not sound. In such case, if the State Court upholds his contention as to one of the non-Federal issues, and that issue is sufficiently broad to sustain a judgment in his favor, no matter how the Federal question may be determined, the Supreme Court will not disturb the judgment below, even though the State Court has passed upon the Federal question and has reached a conclusion concerning it with which the Supreme Court cannot agree.1 1 519. State Court Clerk May Be Compelled to Transmit the Record.-Sometimes State Courts which deny the constitutionality or applicability of the section of the Judiciary Act now under consideration, have directed their clerks not to furnish a transcript of the record. In such a case the Supreme Court will either issue a mandamus to the clerk requiring him to transmit the record, or it will, when under the facts it feels that it may safely do so, act upon what it is 'Murdock vs. City of Memphis, 20 Wall. 590. 'Murdock vs. City of Memphis (supra). 'Murdock vs. City of Memphis, 20 Wall. 590. satisfied is a true copy of the record, though not formally certified by the clerk. In the famous case of Ableman vs. Booth1 the question in 121 How. 506. controversy was the constitutionality of some of the provisions of the Fugitive Slave Act. The Supreme Court of Wisconsin held them unconstitutional. A writ of error was sued out to the Supreme Court of the United States. The Supreme Court of Wisconsin thereupon directed its clerk to make no return to the writ of error and to enter no order upon the journals or records of the Court concerning the same. These facts being made to appear to the Supreme Court of the United States, it laid a rule upon the clerk to make return to the writ of error on or before the first day of the next ensuing term of the Supreme Court. He was still disobedient. The Supreme Court then permitted the plaintiff in error to file a certified copy of the record of the Supreme Court of Wisconsin in lieu of the return the clerk should have made. CHAPTER XX. FROM WHAT CLASS OF DECISIONS APPEALS MAY BE TAKEN AND HOW. 520. Only Final Decisions Are as a Rule Appealable. In the Federal judicial system, as in that of many of the States, the rule has always been that appeals will not lie from any judgment or decree which is not final. From the practical standpoint there are imperative reasons for imposing such restrictions upon the right of appeal. To go to an appellate Court is usually costly. It always takes time, often much time. If every decision of the trial Court could be made the ground of an independent appeal the waste of time and money would be ruinous. It would be frequently useless as well. Many a bitterly contested ruling of the Court below, in the subsequent progress of the case, becomes immaterial. Common sense dictates that before a litigant can invoke the protection of an appellate tribunal he must be certain that the decree of which he complains will, if carried into effect, hurt him. On the other hand, neither Congress nor the people have ever been willing that in matters of any importance the trial Court shall have the last word. As to our judicial system we have always been idealists. We will not surrender the belief that, it is possible to administer justice so that it shall be free from error, both in form and in substance. We know that our lower Courts make mistakes. We create others whose sole business is to correct them. It may be that many of our experiments in this direction have not worked as we hoped. It is possible that better results would have been attained had we in matters of detail trusted more to the discretion and common sense of the Courts of first instance. However that may be, all of us feel that before anything of real value, be it life, liberty or property, is taken from one man by the decision of another, the legality and justice of the determination should be passed upon by someone else. In the course of actual litigation, and long before the final decision of the case below, there may be orders made which, if enforced, will alter the status of things so that no subsequent reversal can undo all of the harm which has been done. If appeals may be taken from every order which any of the parties dislike, the case may last forever. If they may not be taken, until the Court below has finished everything it has to do in the case, many of its decrees will have been long executed, sometimes greatly to the prejudice of one or more of the parties. Where to draw the line between those decrees which are so far final in their effect that from them an appeal should lie and those which are so far interlocutory and tentative that they should be held not appealable, presents a problem which has difficulties both practical and theoretical. 521. What Are Final Decisions?-In a case at law there can seldom be much question as to whether the judgment is final or not, but in equity there may be and very often is. Though our equity practice is modeled on that of England, we early gave a different definition to the term "final decree" from that which was well established there. There every decree, whatever its nature, was considered interlocutory until it was signed and enrolled, and even then it remained interlocutory unless it completely determined every question which arose in the cause. If any matter was reserved for further consideration, the decree was not called final. Such a rigid definition was there possible because appeals could be taken from interlocutory decrees. As with us they can not be, it has been necessary to relax considerably the English conception of finality. Our Courts have tried to make the test a practical one. They are inclined to hold a decree or order final and therefore, appealable, if it requires something to be done which takes aught of substantial value from one of the parties, and if that which is commanded, cannot be undone by any subsequent reversal. When no such result will follow the enforcement of the order complained of, there is usually no sufficient reason why an appeal should lie. Such is the general principle. The actual cases are for the most part in harmony with it. As always in such matters, there are, in its application, some anomalies; as, for example, it was early held that, a permanent injunction against an alleged infringer in a patent case was not appealable, if the decree left open for subsequent determination the question of damages or profits.1 When the rule was first laid down, it was hedged about by limitations to prevent its working a hardship. It subsequently became crystallized. The limitations were dropped out of sight.2 Speaking generally, however, whether a decree is final or not will be tested rather by what will be its actual working than by merely theoretical considerations. A decree for the sale of particular property is final, although it may leave undetermined many things-as, for example, the way in which the proceeds shall be distributed. It is final because one of the parties asserts that the property is his and does not want it sold. The decree will if carried into effect change the status in a way which it will be impossible to undo.1 For the same reason a decree directing the immediate payment of money to anyone and awarding execution therefor, is so far final that it is appealable." In one sense there is nothing final about an order of Court authorizing the issue of receivers' certificates, even if it secures them upon property in the custody of the Court. But because it in fact imposes a lien upon the property, which a reversal of the order after it has been executed by the issue of the receivers' certificates and their sale might not discharge, it is held to be so far final as to be appealable.® 1 1 Barnard vs. Gibson, 7 How. 656. 'Humiston vs. Stainthorp, 2 Wall. 106. Ray vs. Law, 3 Cranch, 179. 'Whiting vs. United States Bank, 13 Peters, 14. |