Opinion of the Court.

not be obnoxious to its appellate jurisdiction if such retrial were limited to the record as it was made in the lower court; but when there is added to this the requirement that the court shall cause additional testimony to be taken, (for a proper showing having been made, this provision is undoubtedly mandatory,) and that it shall rehear and redetermine every question that may arise in the case the same as if it had not been litigated in the court below, a burden is imposed upon the Supreme Court of the United States not contemplated by the Constitution. The Congress of the United States cannot indirectly place a burden upon this court that cannot be directly imposed under the Constitution. Wiscart v. D'Auchy, 3 Dall. 321; United States v. Ritchie, 17 How. 525; Grisar v. McDowell, 6 Wall. 363.

"It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted and does not create that cause." Marbury v. Madison, 1 Cranch, 137, 175.

MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

The motion to dismiss rests upon two grounds: 1. That the Congress had no power to confer upon this court jurisdiction to entertain an appeal from the decree of the Court of Private Land Claims because the latter is not vested with judicial power in virtue of any provision of the Constitution. 2. That if this be not so, nevertheless the act creating that court, in prescribing the course of procedure upon appeal, imposed upon this court the exercise of original jurisdiction contrary to the provisions of the Constitution, and that therefore no appeal would lie.

The second of these grounds does not appear to us to afford any support to appellee's contention. This is not one of the cases within the original jurisdiction of this court, and if it be one of those in respect of which the court has appellate jurisdiction, that jurisdiction exists "both as to law and fact, with such exceptions, and under such regulations as the Congress shall make."

Opinion of the Court.

If the paragraph in the ninth section of the act providing that this court shall retry causes coming up on appeal, "as well the issues of fact as of law, and may cause testimony to be taken in addition to that given in the court below, and may amend the record of the proceedings below as truth and justice may require; and on such retrial and hearing every question shall be open," were obnoxious to the objection that in whole or in part it was not such a regulation as the Congress had power to enact, then the section would to that extent be invalid, but this would not take away the right of appeal itself, nor could the question of such invalidity arise except when particular action was asked under the clause.

We understand the suggestion as made to relate to the authority to allow further proofs or the record to be amended. Causes in the Court of Private Land Claims are in effect equity causes and brought to this court by appeal, and, as observed by Chief Justice Ellsworth, in Wiscart v. D'Auchy, 3 Dall. 321, "an appeal is a process of civil law origin and removes a cause entirely; subjecting the fact, as well as the law, to a review and retrial; but a writ of error is a process of common law and it removes nothing for examination but the law."

The remedy by appeal in its original sense was confined to causes in equity, ecclesiastical, and admiralty jurisdiction. Undoubtedly appellate courts proceeding according to the course of the civil law may allow parties to introduce new allegations and further proofs, and such has been the settled practice of the ecclesiastical courts in England and of the admiralty courts in this country. Nevertheless, orders allow ing this to be done are not granted as matter of course, but made with extreme caution, and only on satisfactory grounds. As to appeals to this court from the decrees of Circuit Courts in equity causes, it was provided by the second section of the act of Congress of March 3, 1803, c. 40, 2 Stat. 244, carried forward into section 698 of the Revised Statutes, which was the first enactment giving the remedy by appeal, "that no new evidence shall be received in the said court, on the hearing of such appeal, except in admiralty and prize causes." Holmes v. Trout, 7 Pet. 171; Mitchel v. United States, 9 Pet.

Opinion of the Court.

711; Boone v. Chiles, 10 Pet. 177; Blease v. Garlington, 92 U. S. 1. And in respect of the allowance of amendments, when the ends of justice require it, the course has been to remand the cause with directions. Wiggins Ferry Co. v. Ohio & Mississippi Railway, 142 U. S. 396, and cases cited.

Under what circumstances and to what extent the power to amend the record of the proceedings below under this act, or to cause additional testimony to be taken, was intended to be exercised, we are not now called on to consider. The statute is not mandatory, but empowers the court to direct further proofs and to amend the record if in its judgment the case demands its interposition to that effect, and, as the question is one of power merely, and not properly arising for determination on this motion, we need not prolong these observations.

The principal ground relied on by appellee is that the Court of Private Land Claims is not a tribunal vested with judicial power in virtue of any provision of the Constitution, and, therefore, the Congress had no power to confer upon this court jurisdiction to entertain appeals from its decisions.

By article 8 of the treaty of Guadalupe-Hidalgo and article 5 of the Gadsden treaty, the property of Mexicans within the territory ceded by Mexico to the United States was to be "inviolably respected," and they and their heirs and grantees were to enjoy with respect to it "guaranties equally ample as if the same belonged to citizens of the United States." 9 Stat. 922, 929, 930; 10 Stat. 1031, 1035. While claimants under grants made by Mexico or the Spanish authorities prior to the cession had no right to a judicial determination of their claims, Congress, nevertheless, might provide therefor if it chose to do so. Astiazaran v. Santa Rita Land and Mining Co., 148 U. S. 80. And it was for this purpose that the act of March 3, 1891, was passed, establishing the Court of Private Land Claims for the settlement of claims against the United States to lands "derived by the United States from the Republic of Mexico, and now embraced within the Territories of New Mexico, Arizona, or Utah, or within the States of Nevada, Colorado, or Wyoming."

Opinion of the Court.

The argument is that the court thus created, composed of judges holding office for a time limited, is not one of the courts mentioned in article 3 of the Constitution, whereby the judicial power of the United States is vested in one Supreme Court and in such inferior courts as Congress may from time to time establish, the judges of which hold their offices during good behavior, receiving at stated times for their services a compensation that cannot be diminished during their continuance in office, and are removable only by impeachment; and that the appellate power of this court cannot be extended to the revision of the judgments and decrees of such a court. Granting that the Court of Private Land Claims does not come within the third article, the conclusion assumes either that the power of Congress to create courts can only be exercised in virtue of that article, or, that judicial tribunals otherwise established cannot be placed under the supervisory power of this court.

It must be regarded as settled that section 1 of article 3 does not exhaust the power of Congress to establish courts. The leading case upon the subject is American Insurance Co. v. Canter, 1 Pet. 511, 546, in which it was held in respect of territorial courts, Chief Justice Marshall delivering the opinion, that while those courts are not courts in which the judicial power conferred by article 3 can be deposited, yet that they are legislative courts created in virtue of the general right of sovereignty which exists in the government over the Territories, or of the clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States. The authorities are referred to and commented on by Mr. Justice Harlan in McAllister v. United States, 141 U. S. 174.

The case before us relates to the determination of a claim against the United States to lands situated in the Territory of Arizona, and, as it was clearly within the authority of Congress to establish a court for such determination, unaffected by the definitions of article 3, the question is not presented whether it was within the power of Congress to create a judicial tribunal of this character for the determina

Statement of the Case.

tion of title to property situated in the States, where the courts of the United States, proper, are parts of the Federal system, "invested with the judicial power of the United States expressly conferred by the Constitution, and to be exercised in correlation with the presence and jurisdiction of the several state courts and governments." Hornbuckle v. Toombs, 18 Wall. 648, 655.

And as wherever the United States exercise the power of government, whether under specific grant, or through the dominion and sovereignty of plenary authority as over the Territories, Shively v. Bowlby, 152 U. S. 1, 48, that power includes the ultimate executive, legislative, and judicial power, it follows that the judicial action of all inferior courts established by Congress may, in accordance with the Constitution, be subjected to the appellate jurisdiction of the supreme judicial tribunal of the government. There has never been any question in regard to this as applied to territorial courts, and no reason can be perceived for applying a different rule to the adjudications of the Court of Private Land Claims over property in the Territories.

The motion to dismiss is

Denied.

SIPPERLEY v. SMITH.

APPEAL FROM THE SUPREME COURT OF THE TERRITORY OF UTAH.

No. 688. Submitted October 15, 1894. - Decided October 29, 1894.

The rule reiterated that where a judgment or decree is joint, all the parties against whom it is rendered must join in the writ of error or appeal, unless there be summons and severance or the equivalent.

MOTION to dismiss or affirm. The court stated the case as follows:

A. F. Sipperley and H. S. Lee, composing a partnership under the firm name of A. F. Sipperley & Co., doing business in the city of Salt Lake, Utah, made an assignment of their partner