lenge is a privilege conferred by law, which may be enlarged, abridged or annulled by the legislative authority. Twenty peremptory challenges, however, are allowed by law, in the federal courts, to a prisoner charged with the crime of murder, and no trial in such a case would be a legal one if that privilege was not fully accorded to the prisoner. Four persons were joined in the same indictment in this case, and two counsel were assigned to each by the court, at their request, before they were required to plead to the merits, and they exercised the right of challenge to the full extent allowed by law, as was admitted by the counsel of the prisoner at the argument. They could not deny that fact; but the precise objection is that no such statement is set forth in the record of the case. Such facts are not usually set forth in the record, nor is it necessary that they should be where the right is fully enjoyed by the prisoner to his entire satisfaction and that of his counsel. Where objections are made, they should be entered in the minutes of the court, and if overruled, the court will save the question whenever thereto requested by the prisoner or his counsel.

Causes four and sixteen will be considered together. They are as follows: 1. That it does not appear by the record that the prisoner was present at the impaneling of the jury or at the trial; or, 2d, when the verdict was rendered by the jury. But it is not possible to sustain any one of those objections, as they are not correct in point of fact. By the record it appears that the prisoners were severally set at the bar, and had the indictment read to them, and that they severally pleaded that they were not guilty; that counsel were assigned to each as before explained; that they acknowledged that they had severally received a copy of the indictment and a list of the jurors, agreeably to law, and more than two days before the day of their trial; that a jury was thereupon impaneled and sworn to try the issue, and that the jury afterwards returned their verdict as set forth in the record. Tested by the record, it ap pears that the whole proceedings took place on the same day, but the docketentries show the exact dates of the several steps in the trial, from the finding of the indictment to the verdict and sentence. Properly construed, the record does show that the prisoner was present at every stage of the trial referred to in those causes of error. The complaint is made, in the next place, that the prisoner was not permitted to address the jury in his own proper person; but the decisive answer to the complaint is that he never made any such request, nor did his counsel in any way signify to the court that he desired any such privilege. He was duly indicted by a grand jury; was informed of the nature and cause of the accusation; was furnished with compulsory process for obtaining witnesses in his favor; was confronted with the witnesses against him; was allowed to have the assistance of counsel, and was "permitted to make his full defense by counsel learned in the law." Two counsel were assigned to him of his own selection, and both were permitted to argue to the jury in the close. § 437. Where some counts in an indictment are bad and others good and sufficient, the verdict will be sustained.

Attention will next be called to the sixth cause of error presented by the prisoner, which is that the verdict was rendered upon all the counts of the indictment, and that one or more of the same were defective, and insufficient in law to support the sentence. Evidently the proposition concedes that some of the counts are good, and it may be added that the argument fails to convince the court that any one of them is bad. Grant, however, that one or more of the counts are bad, still as it is conceded that some are good, the court is of the

opinion that the objection must be overruled. Undeniably the rule at common law was, that a valid judgment could not be given in a civil case on an uncertain verdict, and that a verdict must be regarded as uncertain if any part of the damages are referable to a bad count; but the rule as universally acknowledged in criminal cases was, "that if there is one good count to support the verdict, it shall stand good, notwithstanding all the rest are bad;" and that is the settled rule in the federal courts, and in all except one of the state courts. Peake v. Oldham, Cowp., 275; Rex v. Benfield et al., 2 Burr., 986; Rex v. Rhodes et al., 2 Ld. Raym., 886; Rex v. Hill, Russ. & Ry. Cr. Cas., 190; Regina . Ingram, 1 Salk., 384; Grant v. Astell, 2 Doug., 730; King v. Young et al., 3 Term, 98; Rex v. Powell, 2 Barn. & Ald., 75; Rex v. Fuller, 1 Bos. & Pull., 180; King v. Mason, 2 Term, 581. Where there are several counts, some bad and some good, it is competent for the court, though the verdict is general, to render judgment on the good counts only, but it is not indispensable that any such discrimination should be made, as the presumption of law is, that the sentence was awarded on the good counts. United States v. Furlong, 5 Wheat:, 201; Josselyn v. Commonwealth, 5 Met., 236; Jennings v. Commonwealth, 17 Pick., 80; United States v. Burroughs, 3 McL., 405; Parker v. Commonwealth, 8 B. Monr., 30; 2 Whart. Cr. L., § 3047. Special attention is called to the case of O'Connell et al. v. The Queen, 11 Cl. & Fin., 155; but it is impossible to adopt that rule, as a different doctrine prevailed in the courts of that country, prior to that decision, for nearly two centuries; and when our ancestors immigrated here, they brought that rule with them as part of the common law, which cannot now be changed by the federal courts. Irvine v. Kirkpatrick, 3 Eng. L. & Eq., 17. Sufficient to say that the matter of complaint set forth in the seventh cause of error is contradicted by the record and the docket entries. The allegation is that the acts of the court are stated in the past tense, but the theory of fact is not sustained in respect to any matter material to the validity of the judgment. Subsequent to the verdict the statement is, that the prisoner moves the court here that the verdict may be set aside, and a new trial granted for the causes therein set forth, numbered from one to ten inclusive, and that the prisoner after verdict and before judgment moves the court here that the judgment be arrested, etc., for the causes set forth in the motion filed at the same time, numbered from one to four inclusive, as appears by the respective motions on file. Time was allowed by the court for preparation, but the motions were set down for hearing at a given day. On the appointed day the counsel of the prisoner moved the court for leave to withdraw the motions, but the court refused to grant such leave until the prisoner was brought into court, and being inquired of personally, the record states that he "asks that such leave may be granted," etc., whereupon the court doth grant him leave to withdraw the said motions, and the same are accordingly waived and withdrawn. Continuing, the record also states, said Plumer is then asked if he has anything to say why judgment of death should not now be pronounced against him, and having replied fully, and no good cause appearing, and all matters having been heard and understood by the court, then follows the sentence of the court, which is in the usual form, and is expressed in the present tense. The eighth cause assigned is, that it does not appear that issue was joined between the prisoner and the United States; but it does appear that he was set at the bar for his arraignment; that the indictment was read to him, and that he said that thereof he was not guilty, and that for trial he put himself upon God and the country, which is all that is required in such cases. Prisoners in

dicted for the crime of murder are certainly entitled to a list of the jury suminoned in the case, two entire days, at least, before the trial. The ninth error assigned is, that it does not appear by the record that such list was furnished as required; but the docket entries show that the list was furnished, and the record shows that the prisoner acknowledged in open court, before the jury were impaneled, that he did receive it two entire days prior to that time. Following the order adopted at the argument, the tenth, eleventh, twelfth and thirteenth causes of error will be considered together, as they in fact involve but a single proposition. Taken together, they allege that the record does not show of what felony the prisoner was convicted, nor for what felony he was sentenced. The offense is fully set forth in each of the five counts of the indictment, and the record shows that the jury found him guilty upon all of the counts, which is a complete answer to the first branch of the proposition. Sentences of the kind, when pronounced by the court, are addressed to the prisoner, and of course are spoken in the second person, but the practice is to record the same in the third person, as in this case. Omitting redundant words, the sentence as recorded is to the following effect: It is considered by the court that the said Cyrus W. Plumer be deemed guilty of felony, and that he be taken back to the place from whence he came, and there remain in close confinement until Friday, the 24th of June next, and on that day, between the hours of eleven o'clock in the forenoon and one o'clock in the afternoon, he be taken thence to the place of execution, and that he be there hanged by the neck until he be dead. Apart from the first clause no objection is taken to the sentence, and none can be, as it follows in every particular the form used in every capital case in this circuit since our judicial system was organized. Uncertainty is the foundation of the objection, but two answers may be made to it, either of which is conclusive: 1. That the clause of the sentence, that the prisoner be deemed guilty of felony, is surplusage, and forms no part of the sentence required by law. 2. That the language employed must be construed as applied to the indictment and verdict of the jury, which are set forth in the record, and that the language, when so construed, is certain and free from any ambiguity. Founded as the indictment is upon the fourth section of the act of the 3d of March, 1825, it is clear that the statement that the prisoner be deemed guilty of felony was wholly unnecessary, as it is but the repetition of the legislative enactment, and that it is no part of the judgment of the court.

The repugnancy of the verdict to the clause giving jurisdiction to the court is the matter included in the fourteenth cause. Five counts are contained in the indictment, and the verdict is that the prisoner is guilty. Sentence was passed upon all the counts; and the argument is, that, in comparing the verdict with the jurisdictional clause of the indictment, the legal conclusion is that the prisoner stands convicted of more than one offense, and consequently that the verdict is repugnant to that clause which alleges that the prisoner was "first brought into the district of Massachusetts after committing the aforesaid offense," not offenses, as it should have been in order to correspond with the verdict of the jury. But such criticism is too technical to prevail even in criminal pleading, as the several counts are obviously founded on the same homicide. They set forth the killing of the same person, on board the same ship, on the same day, and by substantially the same means; and, if it were otherwise, the proper conclusion would be, that the word "offense" in the jurisdictional clause applied severally to the respective counts, and not collectively, as contended by the counsel of the prisoner. Indictments must be signed by the

foreman of the grand jury, but when the word "foreman" is appended to the name of the person signing the same as such, the signature is sufficient, as the designation "foreman" refers to the introductory clause of the indictment, and to the record, as verifying the legal inference that "foreman" means foreman of the grand jury. Remarks upon the last cause assigned, to wit, the eighteenth, are unnecessary, as it was conceded at the argument that it did not have respect to any defects except such as are included in the special assignments to which reference has been made.

V. APPELLATE JURISDICTION OF SUPREME COURT OVER FEDERAL COURTS. 1. In General.

SUMMARY — Appellate power of supreme court; legislative exceptions, § 438.— Practice where the lower court has no jurisdiction, § 439.

§ 438. The appellate powers of the supreme court are given by the constitution, but are limited and regulated by acts of congress, and the court implies a legislative exception from its constitutional appellate power in the legislative affirmative description of those powers. But the restriction will be implied only where the intent is manifest; the constitution and laws are to be construed together, and no exception will be implied against the intent. Durousseau v. United States, § 440-444. See § 447.

§ 439. Where the lower court has no jurisdiction, the supreme court will assume jurisdiction for the purpose of reversing the decree, and of vacating any unwarranted proceedings which necessarily stand in the way of a new trial, in a case where, in the judgment of the court, a new trial ought to be granted. Where the lower court has no jurisdict on of the case, in any form of proceeding, the usual course is to direct a dismissal. Morris' Cotton, §§ 445, 446.

[NOTES.- See $$ 447-482.]

DUROUSSEAU v. UNITED STATES.

(6 Cranch, 307-324.

1810.)

This was an action on an embargo bond. The facts on which the question of jurisdiction arose are stated in the opinion.

Opinion by MARSHALL, C. J.

STATEMENT OF FACTS.- This is the first of several writs of error to sundry judgments rendered by the court of the United States for the territory of Orleans. The attorney-general having moved to dismiss them, because no writ of error lies from this court to that in any case, or, if in any case, not in such a case as this, the jurisdiction of this court becomes the first subject for consideration.

The act erecting Louisiana into two territories establishes a district court in the territory of Orleans, consisting of one judge who "shall, in all things, have and exercise the same jurisdiction and powers which are by law given to, or may be exercised by, the judge of Kentucky district." On the part of the United States it is contended that this description of the jurisdiction of the court of New Orleans does not imply a power of revision in this court similar to that which might have been exercised over the judgments of the district court of Kentucky; or, if it does, that a writ of error could not have been sustained to a judgment rendered by the district court of Kentucky in such a case as this. On the part of the plaintiffs it is contended that this court possesses a constitutional power to revise and correct the judgments of inferior courts; or, if not so, that such a power is implied in the act by which the court of Orleans is created, taken in connection with the judicial act; and that a writ of error

would lie to a judgment rendered by the court for the district of Kentucky, in such a case as this.

Every question originating in the constitution of the United States claims, and will receive, the most serious consideration of this court. The third article of that instrument commences with organizing the judicial department. It consists of one supreme court, and of such inferior courts as congress shall, from time to time, ordain and establish. In these courts is vested the judicial power of the United States. The first clause of the second section enumerates the cases to which the power shall extend. The second clause of the same section distributes the powers previously described. In some few cases the supreme court possesses original jurisdiction. The constitution then proceeds thus: "In all the other cases before mentioned the supreme court shall have appellate jurisdiction, both as to law and fact, with such exceptions and under such regulations as the congress shall make."

§ 440. The jurisdiction of the supreme court is limited by acts of congress. It is contended that the words of the constitution vest an appellate jurisdiction in this court, which extends to every case not excepted by congress; and that if the court had been created without any express definition or limitation of its powers, a full and complete appellate jurisdiction would have vested in it, which must have been exercised in all cases whatever. The force of this argument is perceived and admitted. Had the judicial act created the supreme court without defining or limiting its jurisdiction, it must have been considered as possessing all the jurisdiction which the constitution assigns to it. The legis lature would have exercised the power it possessed of creating a supreme court as ordained by the constitution; and, in omitting to exercise the right of excepting from its constitutional powers, would have necessarily left those powers undiminished. The appellate powers of this court are not given by the judicial act. They are given by the constitution. But they are limited and regulated by the judicial act, and by such other acts as have been passed on the subject. When the first legislature of the Union proceeded to carry the third article of the constitution into effect, they must be understood as intending to execute the power they possessed of making exceptions to the appellate jurisdiction of the supreme court. They have not, indeed, made these exceptions in express terms. They have not declared that the appellate power of the court shall not extend to certain cases; but they have described affirmatively its jurisdiction, and this affirmative description has been understood to imply a negative on the exercise of such appellate power as is not comprehended within it.

§ 441. A legislative exception is implied in the legislative affirmative descrip tion of the powers of the court.

The spirit as well as the letter of a statute must be respected, and where the whole context of the law demonstrates a particular intent in the legislature to effect a certain object, some degree of implication may be called in to aid that intent. It is upon this principle that the court implies a legislative exception from its constitutional appellate power in the legislative affirmative description of those powers. Thus, a writ of error lies to the judgment of a circuit court, where the matter in controversy exceeds the value of $2,000. There is no express declaration that it will not lie where the matter in controversy shall be of less value. But the court considers this affirmative description as manifesting the intent of the legislature to except from its appellate jurisdiction all cases decided in the circuits where the matter in controversy is of less value, and implies negative words.