The appellate power of the federal Supreme Court under the twenty-fifth section of the Judiciary Act was again contested in Cohens v. Virginia,2 decided in 1821, Chief Justice Marshall rendering the opinion of the court. This was a criminal case and the first point made was that a case in which a State appeared as defendant in error was a suit against a State and as such forbidden by the Eleventh Amendment. The court held, however, that this Amendment has reference only to the suits in law or equity commenced or prosecuted against one of the United States by citizens of another State, and not to suits originally begun by a State. "It is, then, the opinion of the court," declared Marshall, "that the defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the State."
1 1 Wh. 304; 4 L. ed. 97.
Secondly, the State renewed its claim that in no case might the appellate jurisdiction of the Supreme Court be constitutionally exercised over the judgment of a state court. To this Marshall replied that the nature of the Federal Union provided by the Constitution and intended by its framers and adopters, required the exercise of the power. "We think," he declared, "that in a government acknowledgedly supreme, with respect to objects of vital interest to the Nation, there is nothing inconsistent with sound reason, nothing incompatible with the nature of government, in making all its departments supreme, so far as respects those objects, and so far as is necessary to their attainment. The exercise of the appellate power over those judgments of the state tribunals which may contravene the Constitution or laws of the United States, is, we believe, essential to the attainment of those objects."
To the contention made by the State that to grant the appellate jurisdiction in question would be to render possible a complete consolidation of federal and state judicial power, Marshall replied: "A complete consolidation of the States so far as respects the judicial power would authorize the legislature to confer on the federal courts appellate jurisdiction from the state courts in all cases whatsoever. The distinction between such a power, and that of giving appellate jurisdiction in a few special cases, in the decision of which the Nation takes an interest, is too obvious not to be perceived by all."
2 6 Wh. 264; 5 L. ed. 257.
Since Cohens v. Virginia, the constitutional power of the federal Supreme Court to revise by writ of error decisions of state courts coming within the provisions of the twenty-fifth section of the Judiciary Act has been but once seriously questioned, and then under the strong stimulus of objection to the Fugitive Slave Law of 1850.3
3 Ableman v. Booth (21 How. 506; 16 L. ed. 169). See ante, p. 84.