Me. Chief Justice Fullee,
after making the foregoing statement, delivered the opinion of the court.
Appellate jurisdiction was conferred on this court by the twenty-fifth section of the judiciary act of 1789, over final judgments and decrees in any suit in the highest court of law or equity of a State in which a decision in the suit could be had, in three classes of cases: The first class was where the validity of a treaty or statute of, or an authority exercised under, the United States, was drawn-in question, and the decision was against their validity; the second was where the validity of a statute of, or an authority exercised under, any-State, on the ground of their1 being repugnant to the Constitution, treaties or laws of the United States, was drawn in question, and the decision was in favor of their validity; and the third was " or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission." 1 Stat. 73, 85, c. 20, § 25.
By the second section of the act of February 5, 1867, 14 Stat. 385, 386, c. 28, the original twenty-fifth section was reenacted with certain changes, and, among others, the words just quoted were made to read: " 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, pri-v- ilege, or immunity specially set up or claimed by either party under such-Constitution, treaty, statute, commission, or authority." And this was reproduced in § 709 of the Kevised Statutes. The change from the drawing in question of the construction of a clause of the Constitution, or of a treaty, statute, or commission, .to the claim of a right under the Constitution, treaty, statute, commission, or authority, emphasized the necessity that the right must be specially set up, and denied.
In Baltimore & Potomac Railroad Company v. Hopkins, 130 U. S. 210, the distinction between the denial of validity and the denial of a. title; right, privilege or immunity specially set up'or claimed, is pointed out, as well as the distinction between the construction of a statute or the extent of an authority and the validity of a statute or of an authority.-
Our jurisdiction of this writ of error is asserted under the third of the classes of cases enumerated in § 709, and it is thoroughly settled that in order to maintain it, the right, title, privilege or immunity relied on must not only be specially set up or claimed, but at the proper time and in the proper way.
The proper time 4s in the trial court whenever that is required by the state practice, in accordance with which the highest court of a State will not revise the judgment of the court below on questions not therein raised. Spies v. Illinois, 123 U. S. 131; Jacobi v. Alabama, 187 U. S. 133; Layton v. Missouri, 187 U. S. 356; Erie Railroad Company v. Purdy, 185 U. S. 148.
The proper way is by pleading, motion, exception, or other action, part, or being made part, of the record, showing that the claim was presented to the-court. Loeb v. Trustees, 179 U. S. 472, 481. It is not properly made when made for the first time in a petition for rehearing after judgment; or in the petition for. writ of error ; or in the briefs of counsel not made part of the record. Sayward v. Denny, 158 U. S. 180; Zadig v. Baldwin, 166 U. S. 485, 488. The assertion of the right must be made unmistakably and not left to mere inference. Oxley Stave Company v. Butler County, 166 U. S. 648.
If the highest court of a State entertains, a petition for rehearing, which raises Federal questions, and decides them, that will be sufficient; Mallett v. North Carolina, 181 U.S. 589; or if the court decides a Federal question which it assumes is distinctly presented to it in some way. Home for Incurables v. New York, 187 U. S. 155; Sweringen v. St. Louis, 185 U. S. 38, 46.
Jurisdiction may be maintained where a definite issue as to the possession of the right is distinctly deducible from the record and necessarily disposed of, but this cannot be made out by resort to judicial knowledge. Powell v. Brunswick County, 150 U. S. 433; Mountain View Mining & Milling Company v. McFadden, 180 U. S. 533; Arkansas v. Kansas and Texas Coal Company, 183 U. S. 185.
Counsel by their specification of errors, under rule 21, assert the Federal questions to be that the decision of the Supreme Court of California was against a title, right, privilege or immunity claimed by plaintiff in error under the treaty between the United States and Hawaii. And that the- decision was in contravention of section 1 of Article IY of the Constitution.'
1. Ye do not find that any claim under the treaty was made in the trial court, and the rule of practice of the Supreme Court of California is that it -will not pass on questions raised for the first time in that court, and which might and should have been raised in the trial court. Stoddard v. Treadwell, 29 California, 281; King v. Meyer, 35 California, 646; Deady v. Townsend, 57 California, 298; Williams v. McDonald, 58 California, 527; Anderson v. Black, 70 California, 226, 231.
Neither the pleading of the decree of divorce nor of the statute of Hawaii providing for the forfeiture of Mrs. McG-rew's rights in the policy of- insurance, as construed by the Supreme Court of Hawaii, nor of both together, amounted to specially asserting any right under the treaty. Those averments did not assert that claim in the trial court in such manner as to bring it to the'attention of that court, nor indeed, to show that any right under the treaty was present in the mind of counsel.
To give them that effect would be' in the teeth of our decision in Oxley Stave Company v. Butler County, 166 U. S. 648, and numerous other decisions. That case involved a decree, in respect of which there was a general allegation that it was rendered against dead persons, as well as in the absence of •necessary parties who had no notice of the suit; and we held that such general allegations did not meet the statutory requirement that the final judgment of a state court may be reexamined here if it denies some title, right-, privilege, or immunity " specially set up or claimed " under the Constitution or authority of the United States. Mr. Justice Harlan said (p. 655): " This statutory requirement is not met if such declaration is so general in its character that the purpose of the party to assert a Federal right is left to mere inference. It is the settled doctrine of this court that the jurisdiction of the Circuit Courts of the United States must appear affirmatively from the record, and that it is not sufficient that it may be inferred argumentatively from the facts stated. . . . Upon like grounds the jurisdiction of this court to reexamine the final judgment of a state court cannot arise from mere inference, but only from averments so distinct and positive as to place it beyond question that the party bringing a case here from such court intended to assert a Federal right."
This also disposes of the suggestion that the offering in evidence of the judgment in the suit by the administrator, and of evidence of its payment, raised a Federal question under the treaty, for no such ground was taken in relation to that evidence, to say nothing of the fact that Mrs. McGrew was not a party to that suit.
In the bill o.f exceptions there is an enumeration of . certain objections to the entry of judgment and certain errors of law alleged to have occurred during the trial, and to have been excepted to by defendant, which embraces the objection that the decision of the trial court was against law because, among other things, the findings of fact did not determine the issues'"raised by the allegation in the answer quoted in the statement preceding this opinion, and that the court erred in sustaining the objection of plaintiff to the introduction of evidence of payr ment by the company to the administrator of the amount due on the policy. But there is no reference to the treaty, and all this no more set up the claim than the answer itself.
In fact, Hhe question was not even raised in the Supreme Court, though, if so, the court was not then bound to regard . it. Reference was made in the briefs in the Supreme Court to the treaty, but those references did not specially set up or claim any right as secured by the treaty, nor were the briefs made part of the record by any certificate or entry duly made, and our attention has not been called to any statute or rule of court in California making them such.
In the petition for rehearing it was said that the treaty made the decision in Carter v. Insurance Company, 10 Hawaii, 117, controlling, and if that could be considered as a compliance with § 709, which we do not think it could, it came too ¿ate, and the petition was denied without an opinion'. In doing so that court adhered to the usual course of its judgments, and its action cannot be revised by us. If the Supreme Court of California had seen fit on that petition to entertain the contention of plaintiff in error as asserting a Federal right, and had then decided it adversely, the case would have occupied a different position.-'
Where a state court refuses to give effect to the judgment of a court of the United States, rendered upon a point in dispute, and with jurisdiction of the case and the parties, it denies the validity of an authority exercised under the United States; and where a state court refuses to give effect to the judgment of a court of another State, it refuses to give full failh and credit to that judgment. The' one case falls within the first class of cases named in § 709 and the other within the third class.
Where a judgment of another State is pleaded in defence, aqd issue is made upon it, it may well be ruled that that sets up a right under the third subdivision, because the effect of the judgment is the only question in the case, but here the plea of the decreé of divorce and the statute did not necessarily suggest or amount to a claim under the treaty. They were properly admitted in evidence under the state law for what they might be worth as a defence, but that did not involve the assertion of an absolute right .under the treaty. *
The Supreme Court of Hawaii in its second.opinion in the administrator's case said that the company, not having brought Mrs. McGrew in by interplea, must rely on the courts of Cali fornia taking the same view that the courts of Hawaii did, but did not intimate that the courts of California were compelled by treaty to take- that view.
Nor can this failure to claim under the treaty be supplied by judicial knowledge. We so held in Mountain View Mining and Milling Company v. McFadden, 180 U. S. 533, where we ruled that judicial knowledge could not be resorted to to raise controversies not presented by the record; and Professor Thayer's Treatise on Evidence was cited, in which, referring to certain cases relating to the pleadings and matters of record, it was said " that the right of a court to act upon what is in point of fact known to it must be subordinate to those requirements of form and orderly communication which regulate the mode of bringing controversies into court, and of stating and conducting them." Arkansas v. Kansas and Texas Coal Company, 183 U. S. 185, 190.
That rule must necessarily govern us in passing on the question of our appellate jurisdiction under § 709.
The Supreme Court of California held that the Hawaiian statute had no force in California " except by comity ; " accorded full effect to the decree of divorce as dissolving the bond of matrimony, but decided that Mrs. McGrew was not affected by the statute because she was not domiciled in Hawaii, and was domiciled in California, when that decree was rendéred, and when the statute could have • operated if she had been domiciled in Hawaii; and that the statute " had no operation upon her or Her personal property here; for the law which governs personal property is the law of the domicil." As to whether a Federal question was involved at all, see Roth v. Ehman, 107 U. S. 319; Roth v. Roth, 104 Illinois, 35; Württemberg Treaty, 1844, Comp. Treaties, (1899,) 656.
It is argued that by the judgment against the company in favor of McGrew's administrator, the Hawaiian courts had adjudicated that Mrs. McGrew's title passed to the administrator. But Mrs. McGrew was not a party to that action, and was not bound by it, so that it could be pleaded against her. The insurance company did not litigate the question of ownership on her behalf and was in no way authorized to represent her. In any point of view we return to the contention that it was in virtue of the treaty that the California courts were obliged to accept the Hawaiian decisions, and the record fails to show that a right or title was set up thereunder.
2.. The second question indicated by plaintiff in error is that the decision was in conflict with § 1 of Article IY of the Constitution, providing that full faith and credit in each State shall be given to the public acts, records and public proceedings of every other State, as carried out by § 905 of the Revised Statutes, because it is insisted that prior to the decision this constitutional provision applied to Hawaii, and should be regarded as an enlargement of and connected with the alleged claim of right under the treaty. But an alleged right under a treaty between two foreign nations is inconsistent with an alleged right arising under the Federal Constitution, and as a right under the Constitution it was not at any time or in any way brought to the attention of the state courts. The judgment of the trial court was rendered October 11, 1897. The resolutions of annexation were passed July 7, 1898. The act to provide a government for Hawaii was passed April 30, 1900. By this act it was provided that the laws of Hawaii, not inconsistent -with the Constitution and laws of the United States, or the provisions of the act, should remain in force, subject to repeal or amendment, but the act forfeiting the wife's property was repealed May 12, 1896. Laws Hawaii, 1896, p. 70.
The judgment of the Supreme Court of California was rendered February 28, 1901, and we cannot retain jurisdiction on the ground of the assertion of a Federal right which did not exist when the judgment was rendered in the trial court, and which was not brought to the attention of the highest court of the State in any way whatever.
Writ of error dismissed.
Me. Justice Peckham took no part in the consideration and disposition of this case.
Me. Justice White dissented.