[257] Ibid. 422-423. In Martin _v._ Hunter's Lessee, 1 Wheat. 304
(1816), Justice Story had traversed some of these same grounds. He, too,
began with the general assumptions that the Constitution was established
by the people of the United States and not by the States in their
sovereign capacities, that the Constitution is to be construed
liberally, and that the National Government is supreme in relation to
its objects; and had concluded that the Supreme Court had authority to
review State court decisions under the express provisions of articles
III and VI, and also from the necessity that final decision must rest
somewhere and from the importance and necessity of uniformity of
decisions interpreting the Constitution. Many years later in Ableman
_v._ Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme
Court, like the Virginia Courts earlier, had declared an act of Congress
invalid and disregarded a writ of error from the Supreme Court, Chief
Justice Taney on grounds both of dual sovereignty and national supremacy
was even more emphatic in his rebuke of State pretensions. His emphasis
on the indispensability of the federal judicial power to maintain
national supremacy, to protect the States from national encroachments,
and to make the Constitution and laws of the United States uniform all
combine to enhance the federal judicial power to a degree beyond that
envisaged even by Marshall and Story. As late as 1880 the questions
presented in the foregoing cases were before the Court in Williams _v._
Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a
Virginia court to enforce a mandate of the Supreme Court. By the act of
December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act
of 1789 which was carried over with modifications into the Revised
Statutes, Sec. 690; 28 U.S.C. Sec. 344 was amended so as to provide for
review of State court decisions on certiorari whether the federal claim
is sustained or denied. These provisions are now contained in 28 U.S.C.A.
1257 (1948).
The first case involving invalid State legislation arose under a treaty
of the United States. Ware _v._ Hylton, 3 Dall. 199 (1797). In Calder
_v._ Bull, 3 Dall. 386 (1798), the Court sustained a State statute as
not being an _ex post facto_ law. The first case in which a State
statute was held invalid as a violation of the Constitution was Fletcher
_v._ Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal
from a United States circuit court and not by a writ of error under
section 25. Famous cases coming to the Court under section 25 were
Sturges _v._ Crowninshield, 4 Wheat. 122, McCulloch _v._ Maryland, 4
Wheat. 316, and Dartmouth College _v._ Woodward, 4 Wheat. 518. All three
were decided in 1819 and the State legislation involved in each was held
void.
[258] That the great majority of the most influential members of the
Convention of 1787 thought the Constitution secured to courts in the
United States the right to pass on the validity of acts of Congress
under it cannot be reasonably doubted. Confining ourselves simply to the
available evidence that is strictly contemporaneous with the framing and
ratifying of the Constitution, we find the following members of the
Convention that framed the Constitution definitely asserting that this
would be the case: Gerry and King of Massachusetts, Wilson and
Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph,
Madison, and Mason of Virginia, Dickinson of Delaware, Yates and
Hamilton of New York, Rutledge and Charles Pinckney of South Carolina,
Davie and Williamson of North Carolina, Sherman and Ellsworth of
Connecticut. _See_ Max Farrand, Records of the Federal Convention (Yale
Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76
(Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248
(Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220
(Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44
(Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836),
II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton);
III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165
(Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in
"Letters of Fabius"). Ford, Essays on the Constitution, 295 (Robert
Yates, writing as "Brutus"). True these are only seventeen names out of
a possible fifty-five, but they designate fully three-fourths of the
leaders of the Convention, four of the five members of the Committee of
Detail which drafted the Constitution (Gorham, Rutledge, Randolph,
Ellsworth, and Wilson) and four of the five members of the Committee of
Style which gave the Constitution final form (Johnson, Hamilton,
Gouverneur Morris, Madison, and King). Against them are to be pitted, in
reference to the question under discussion, only Mercer of Maryland,
Bedford of Delaware, and Spaight of North Carolina, the record in each
of whose cases is of doubtful implication.
It should be noted, however, that there was later some backsliding.
Madison's record is characteristically erratic. His statement in The
Federalist No. 39 written probably early in 1788, is very positive: The
tribunal which is to ultimately decide, in controversies relating to the
boundary between the two jurisdictions, is to be established under the
general government. Yet a few months later (probably October, 1788) he
seemed to repudiate judicial review altogether, writing: "In the State
Constitutions and indeed in the Federal one also, no provision is made
for the case of a disagreement in expounding them; and as the Courts are
generally the last in making the decision, it results to them by
refusing or not refusing to execute a law, to stamp it with its final
character. This makes the Judiciary Department paramount in fact to the
Legislature, which was never intended and can never be proper." 5
Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as
follows in support of the proposals to amend the Constitution which led
to the Bill of Rights: "If they are incorporated into the Constitution,
independent tribunals of justice will consider themselves in a peculiar
manner the guardians of those rights; they will be an impenetrable
bulwark against every assumption of power in the Legislature or
Executive; they will be naturally led to resist every encroachment upon
rights expressly stipulated for in the Constitution by the declaration
of rights." Ibid. 385. Nine years later as author of the Virginia
Resolutions of 1798, he committed himself to the proposition that the
final power in construing the Constitution rested with the respective
State legislatures, a position from the logical consequences of which he
spent no little effort to disengage himself in the years of his
retirement. Another recidivist was Charles Pinckney, who in 1799
denounced the idea of judicial review as follows: "On no subject am I
more convinced, than that it is an unsafe and dangerous doctrine in a
republic, ever to suppose that a judge ought to possess the right of
questioning or deciding upon the constitutionality of treaties, laws, or
any act of the legislature. It is placing the opinion of an individual,
or of two or three, above that of both branches of Congress, a doctrine
which is not warranted by the Constitution, and will not, I hope, long
have many advocates in this country." Wharton, State Trials, 412. The
great debate in Congress in the first session of the 7th Congress over
the repeal of the Judiciary Act of 1801 speedily developed into a debate
over whether judicial review of acts of Congress was contemplated by the
Constitution. In the Senate Breckenridge of Kentucky, author of the
Kentucky Resolutions of 1799, contended for the equal right of the three
departments to construe the Constitution for themselves within their
respective spheres, and from it deduced the exclusive right of the
legislature to interpret the Constitution in what regards the lawmaking
power and the obligation of the judges to execute what laws they make.
But the feeble disguise which this doctrine affords legislative
sovereignty made it little attractive even to Republicans, who for the
most part either plainly indicated their adherence to the juristic view
of the Constitution, or following a hint by Giles of Virginia, kept
silent on the subject. The Federalists on the other hand were unanimous
on the main question, though of divergent opinions as to the grounds on
which judicial review was to be legally based, some grounding it on the
"arising" and "pursuant" clauses, some on the precedents of the Pension
and Carriage cases, some on the nature of the Constitution and of the
judicial office, some on the contemporary use of terms and the
undisputed practice under the Constitution of all constitutional
authorities. Moreover, said The Federalist orators, judicial review was
expedient, since the judiciary had control of neither the purse nor the
sword; it was the substitute offered by political wisdom for the
destructive right of revolution; to have established this principle of
constitutional security, a novelty in the history of nations, was the
peculiar glory of the American people; the contrary doctrine was
monstrous and unheard of. The year following Marshall concluded the
debate, and rendered decision, in Marbury _v._ Madison. _See_ Edward S.
Corwin, The Doctrine of Judicial Review (Princeton University Press.
1914), 49-59; and Court Over Constitution (1938), Chap. 1. "The glory
and ornament of our system which distinguishes it from every other
government on the face of the earth is that there is a great and mighty
power hovering over the Constitution of the land to which has been
delegated the awful responsibility of restraining all the coordinate
departments of government within the walls of the governmental fabric
which our fathers built for our protection and immunity."--Chief Justice
Edward Douglass White when Senator from Louisiana. Cong. Record, 52d
Cong., 2d sess., p. 6516 (1894). "I do not think the United States would
come to an end if we lost our power to declare an Act of Congress void.
I do think the Union would be imperiled if we could not make that
declaration as to the laws of the several States." Oliver Wendell
Holmes, Collected Legal Papers (New York, 1920), 295-296.
[259] The Federalist No. 78.
[260] 3 Dall. 386, 399 (1798).
[261] 2 Dall. 409 (1792).
[262] 1 Stat. 243 (1792).
[263] 3 Dall. 171 (1796).
[264] 1 Cr. 137 (1803).
[265] 1 Stat. 73, 81.
[266] Cr. 137, 175-180.
[267] Ibid. 180. The opinion in Marbury _v._ Madison is subject to two
valid criticisms. In the first place the construction of the 13th
Section of the Judiciary Act, if not erroneous, was unnecessary since
the section could have been interpreted, as it afterward was, merely to
give the Court the power to issue mandamus and other writs when it had
jurisdiction but not for the purpose of acquiring jurisdiction. The
exclusive interpretation of the Court's original jurisdiction, sometimes
made a subject of criticism, had been adopted by the Court in Wiscart
_v._ Dauchy, 3 Dall. 321 (1796), and while couched in terms which had
later to be qualified in Cohens _v._ Virginia, 6 Wheat. 264, 398-402
(1821), by Marshall himself, has remained the doctrine of the Court.
Secondly, there was good ground for Jefferson's criticism, which did not
touch the constitutional features of the decision, but did inveigh
against the temerity of the Court in passing on the merits of a case of
which, by its own admission, it had no jurisdiction.
[268] In this connection Justice Patterson's jury charge in Van Horne's
Lessee _v._ Dorrance, 2 Dall. 304, 308 (1795), is of significance for
its discussion of the relation of the Constitution, the legislature and
the courts. A constitution, he said, "is the form of government,
delineated by the mighty hand of the people, in which certain first
principles of fundamental laws are established. The Constitution is
certain and fixed; it contains the permanent will of the people, and is
the supreme law of the land; it is paramount to the power of the
Legislature, and can be revoked or altered only by the authority that
made it." Legislatures are the creatures of the Constitution to which
they owe their existence and powers, and in case of conflict between a
legislative act and the Constitution it is the duty of the courts to
hold it void. In accordance with these doctrines fortified by natural
law concepts, the circuit court invalidated a Pennsylvania statute as
being in conflict with the federal and State Constitutions as a
violation of the inalienable rights of property. In 1799 the federal
circuit court in North Carolina, over which Chief Justice Marshall
presided, invalidated an act of North Carolina as a violation of the
contract clause and the separation of powers in Ogden _v._ Witherspoon,
18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and
natural rights continued in Fletcher _v._ Peck, 6 Cr. 87, 139 (1810)
where the Supreme Court invalidated an act of the Georgia legislature
revoking an earlier land grant as a violation either of the "general
principles which are common to our free institutions," or of the
contract clause.
[269] This phase of judicial review is described by Justice Sutherland
as follows: "From the authority to ascertain and determine the law in a
given case, there necessarily results, in case of conflict, the duty to
declare and enforce the rule of the supreme law and reject that of an
inferior act of legislation which, transcending the Constitution, is of
no effect and binding on no one. This is not the exercise of a
substantive power to review and nullify acts of Congress, for no such
substantive power exists. It is simply a necessary concomitant of the
power to hear and dispose of a case or controversy properly before the
court, to the determination of which must be brought the test and
measure of the law." Adkins _v._ Children's Hospital, 261 U.S. 525, 544
(1923). In United States _v._ Butler, 297 U.S. 1, 62 (1936), Justice
Roberts for the Court reduced judicial review to very simple terms when
he declared that when an act is challenged as being unconstitutional,
"the judicial branch of the Government has only one duty,--to lay the
article of the Constitution which is invoked beside the statute which is
challenged and to decide whether the latter squares with the former."
[270] Note, for example, the following statement of Chief Justice
Marshall: "Judicial power, as contradistinguished from the power of the
laws, has no existence. Courts are the mere instruments of the law, and
can will nothing." Osborn _v._ Bank of United States, 9 Wheat. 738, 866
(1824). Note also the assertion of Justice Roberts: "All the court does,
can do, is to announce its considered judgment upon the question. The
only power it has, if such it may be called, is the power of judgment.
This court neither approves nor condemns any legislative policy. Its
delicate and difficult office is to ascertain and declare whether the
legislation is in accordance with, or in contravention of, the
Constitution; and, having done that, its duty ends." United States _v._
Butler, 297 U.S. 1, 62-63 (1936).
[271] Chicago & Grand Trunk R. Co. _v._ Wellman, 143 U.S. 339, 345
(1892).
[272] Ibid. _See also_ Muskrat _v._ United States, 219 U.S. 346 (1911);
Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Alabama State Federation
of Labor _v._ McAdory, 325 U.S. 450 (1945); United Public Workers of
America _v._ Mitchell, 330 U.S. 75 (1947); Fleming _v._ Rhodes, 331 U.S.
100, 104 (1947)
[273] Rescue Army _v._ Municipal Court of Los Angeles, 331 U.S. 549,
568-575 (1947). _See also_ Alma Motor Co. _v._ Timken-Detroit Axle Co.,
329 U.S. 129 (1946); Spector Motor Service _v._ McLaughlin, 323 U.S.
101, 105 (1944); Coffman _v._ Breeze Corporations, 323 U.S. 316, 324-325
(1945); Carter _v._ Carter Coal Co., 298 U.S. 238, 325 (1936); Siler
_v._ L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College _v._
Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the notes to
the preceding paragraph. [Transcriber's Note: Reference is to Footnote
272, above.]
[274] 331 U.S. 549, 571 (1947).
[275] _See_ pp. 546-548. For the distinction between inherent and
precautionary limitations to the exercise of judicial review and the
operation of judicial review within them, _see_ Edward S. Corwin,
Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926).
For the limitations generally _see also_ the concurring opinion of
Justice Brandeis in Ashwander _v._ Tennessee Valley Authority, 297 U.S.
288, 346-356 (1936), and the cases cited therein.
[276] One of the earliest formulations of this rule is that by Justice
Iredell in Calder _v._ Bull, 3 Dall. 386, 399 (1798), and by Justice
Chase in the same case, p. 394. On the other hand Justice Chase in this
same case asserted that there were certain powers which "it cannot be
presumed" have been entrusted to the legislature. _See also_
Sinking-Fund Cases, 99 U.S. 700 (1879).
[277] Ogden _v._ Saunders, 12 Wheat. 213 (1827); Providence Bank _v._
Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender
Cases, 12 Wall. 457 (1871); Madden _v._ Kentucky, 309 U.S. 83 (1940);
Alabama State Federation of Labor _v._ McAdory, 325 U.S. 450 (1945).
_See also_ Justice Moody's dissenting opinion in Howard _v._ Illinois
C.R. Co. (The Employers' Liability Cases), 207 U.S. 463, 509-511 (1908).
[278] Adkins _v._ Children's Hospital, 261 U.S. 525 (1923). "But freedom
of contract is, nevertheless, the general rule and restraint the
exception; and the exercise of legislative authority to abridge it can
be justified only by the existence of exceptional circumstances." Ibid.
546.
[279] Kovacs _v._ Cooper, 336 U.S. 77, 88 (1949) opinion of Justice
Reed. _See_ Justice Frankfurter's concurring opinion for a criticism of
this rule. For other cases imputing to freedom of religion and the press
a preferred position so as to reverse the presumption of validity _see_
Herndon _v._ Lowry, 301 U.S. 242, 258 (1937); United States _v._
Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill _v._
Alabama, 310 U.S. 88, 95 (1940); Schneider _v._ State, 308 U.S. 147, 161
(1939); Bridges _v._ California, 314 U.S. 252, 262-263 (1941); Murdock
_v._ Pennsylvania, 319 U.S. 105, 115 (1943); Prince _v._ Massachusetts,
321 U.S. 158, 164 (1944); Follett _v._ McCormick, 321 U.S. 573, 575
(1944); Marsh _v._ Alabama, 326 U.S. 501 (1946); Board of Education _v._
Barnette, 319 U.S. 624, 639 (1943); Thomas _v._ Collins, 323 U.S. 516,
530 (1945); Saia _v._ New York, 334 U.S. 558, 562 (1948). Justice
Frankfurter has criticized the concept of "the preferred position" of
these rights as a phrase that has "uncritically crept into some recent
opinions" of the Court, Kovacs _v._ Cooper, 336 U.S. 77, 90 (1949); and
Justice Jackson in a dissent has also opposed the idea that some
constitutional rights have a preferred position. Brinegar _v._ United
States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some
constitutional rights a preferred position without relegating others to
a deferred position; * * *"
[280] Watson _v._ Buck, 313 U.S. 387 (1941); Justice Iredell's opinion
in Calder _v._ Bull, 3 Dall. 386 (1798); Jacobson _v._ Massachusetts,
197 U.S. 11 (1905). _See also_ Cohen _v._ Beneficial Industrial Loan
Corp., 337 U.S. 541 (1949); Daniel _v._ Family Security Life Ins. Co.,
336 U.S. 220 (1949); Railway Express Agency _v._ New York, 336 U.S. 106
(1949); Wickard _v._ Filburn, 317 U.S. 111 (1942); United States _v._
Petrillo, 332 U.S. 1 (1947); American Power & Light Co. _v._ Securities
& Exchange Commission, 329 U.S. 90 (1946); Sunshine Anthracite Coal Co.
_v._ Adkins, 310 U.S. 381 (1940). _See also_ Railroad Retirement Board
_v._ Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan Assoc. _v._
Blaisdell, 290 U.S. 398 (1934); Arizona _v._ California, 283 U.S. 423
(1931); McCray _v._ United States, 195 U.S. 27 (1904); Hamilton _v._
Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however,
Bailey _v._ Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20
(1922), where the Court considered the motives of the legislation.
[281] 198 U.S. 45 (1905).
[282] 297 U.S. 1 (1936). The majority opinion evoked a protest from
Justice Stone who said in dissenting: "The power of courts to declare
... [an act of Congress unconstitutional] is subject to two guiding
principles of decision which ought never to be absent from judicial
consciousness. One is that courts are concerned only with the power to
enact statutes, not with their wisdom. The other is that while
unconstitutional exercise of power by the executive and legislative
branches of the government is subject to judicial restraint, the only
check upon our own exercise of power is our own sense of self-restraint.
For the removal of unwise laws from the statute books appeal lies not to
the courts but to the ballot and to the processes of democratic
government." Ibid. 78-79.
[283] United States _v._ Congress of Industrial Organizations, 335 U.S.
106 (1948); Miller _v._ United States, 11 Wall. 268 (1871).
[284] _See_, for example, Michaelson _v._ United States, 266 U.S. 42
(1924), where the Court narrowly construed those sections of the Clayton
Act regulating the power of courts to punish contempt in order to avoid
constitutional difficulties. _See also_ United States _v._ Delaware &
H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly
construed. Judicial disallowance in the guise of statutory
interpretation was foreseen by Hamilton, _see_ Federalist No. 81.
[285] Pollock _v._ Farmers' L. & T. Co., 158 U.S. 429, 601, 635 (1895).
[286] In the first Guffey-Snyder (Bituminous Coal) Act of 1935 (49 Stat.
991), there was a section providing for separability of provisions, but
the Court none the less held the price-fixing provisions inseparable
from the labor provisions which it found void and thereby invalidated
the whole statute. Carter _v._ Carter Coal Co., 298 U.S. 238, 312-316
(1936). On this point _see also_ the dissent of Chief Justice Hughes.
Ibid. 321-324.
[287] 157 U.S. 429, 574-579 (1895).
[288] Justice Brandeis dissenting in Burnet _v._ Coronado Oil & Gas Co.,
285 U.S. 393, 405-411 (1932) states the rules governing the binding
force of precedents and collects the decisions overruling earlier
decisions to 1932. In Helvering _v._ Griffiths, 318 U.S. 371, 401
(1948), Justice Jackson lists other cases overruled between 1932 and
1943. _Cf._ Smith _v._ Allwright, 321 U.S. 649 (1944) for similar list.
[289] 321 U.S. 649, 665 (1944).
[290] 295 U.S. 45 (1935).
[291] 321 U.S. 649, 669. Justice Roberts in a dissent, in which Justice
Frankfurter joined, also protested against overruling "earlier
considered opinions" in Mahnich _v._ Southern S.S. Co., 321 U.S. 96,
112-113 (1944). More recently in United States _v._ Rabinowitz, 339 U.S.
56 (1950), Justice Frankfurter has protested in a dissent against
reversals of earlier decisions immediately following changes of the
court's membership. "Especially ought the Court not reenforce needlessly
the instabilities of our day by giving fair ground for the belief that
Law is the expression of chance--for instance, of unexpected changes in
the Court's composition and the contingencies in the choice of
successors." Ibid. 80.
[292] _See_ Corwin, Judicial Review in Action, 74 University of
Pennsylvania Law Review 639 (1926).
[293] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933),
citing Mosher _v._ Phoenix, 287 U.S. 29, 30 (1932).
[294] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105 (1933).
_See also_ Binderup _v._ Pathe Exchange, 263 U.S. 291, 305-308 (1923);
South Covington & C. St. Ry. Co. _v._ Newport, 259 U.S. 97, 99 (1922);
Hull _v._ Burr, 234 U.S. 712, 720 (1914); The Fair _v._ Kohler Die Co.,
228 U.S. 22, 25 (1913); Montana Catholic Missions _v._ Missoula County,
200 U.S. 118, 130 (1906); Western Union Tel. Co. _v._ Ann Arbor R. Co.,
178 U.S. 239 (1900).
[295] Newburyport Water Co. _v._ Newburyport, 193 U.S. 561, 576 (1904).
For these issues, _see also_ Bell _v._ Hood, 327 U.S. 678 (1946).
[296] Levering & Garrigues Co. _v._ Morrin, 289 U.S. 103, 105-106
(1933).
[297] 299 U.S. 109, 112-113 (1936).
[298] Whether the doctrine that the plaintiff must allege the
constitutional question to make the case one arising under the
Constitution rests on constitutional or statutory grounds is uncertain.
_See_ Tennessee _v._ Union and Planters' Bank, 152 U.S. 454 (1894);
Oregon Short Line and Utah N. Ry. Co. _v._ Skottowe, 162 U.S. 490, 492
(1896); Galveston, H. & S.A. Ry. Co. _v._ Texas, 170 U.S. 226, 236
(1898); Sawyer _v._ Kochersperger, 170 U.S. 303 (1898); Board of
Councilmen of Frankfort _v._ State National Bank, 184 U.S. 696 (1902);
Boston and Montana Consolidated Copper & Silver Mining Co. _v._ Montana
Ore Purchasing Co., 188 U.S. 632, 639 (1903). Some of these cases apply
to the removal of cases from State courts where the plaintiff does not
aver a federal question. On this point note the following statement of
Chief Justice Fuller in Arkansas _v._ Kansas & T.C. Co. & S.F.R., 183
U.S. 185, 188 (1901): "Hence it has been settled that a case cannot be
removed from a State court into the Circuit Court of the United States
on the sole ground that it is one arising under the Constitution, laws
or treaties of the United States, unless that appears by plaintiff's
statement of his own claim; and if it does not so appear, the want of it
cannot be supplied by any statement of the petition for removal or in
the subsequent pleadings. And moreover that jurisdiction is not
conferred by allegations that defendant intends to assert a defence
based on the Constitution or a law or treaty of the United States, or
under statutes of the United States, or of a State, in conflict with the
Constitution."
[299] 5 Cr. 61 (1809).
[300] 9 Wheat. 738 (1824).
[301] 115 U.S. 1 (1885).
[302] 22 Stat. 162, Sec. 4 (1882).
[303] 38 Stat. 803, Sec. 5 (1915).
[304] 43 Stat. 936, 941 (1925); 28 U.S.C.A. Sec. 1349.
[305] 3 Stat. 195, 198 (1815).
[306] 4 Stat. 632, 633, Sec. 3 (1833).
[307] 12 Stat. 755, 756, Sec. 5 (1863).
[308] 28 U.S.C.A. Sec. 1442 (a) (1).
[309] 100 U.S. 257 (1880).
[310] 1 Wheat. 304 (1816).
[311] 6 Wheat. 264 (1821).
[312] 100 U.S. 257, 264. _See also_ The Mayor of Nashville _v._ Cooper,
6 Wall. 247 (1868).
[313] Lovell _v._ City of Griffin, 303 U.S. 444 (1938).
[314] Stoll _v._ Gottlieb, 305 U.S. 165 (1938).
[315] Indiana ex rel. Anderson _v._ Brand, 303 U.S. 95 (1938).
[316] Southwestern Bell Telephone Co. _v._ Oklahoma, 303 U.S. 206
(1938).
[317] Adam _v._ Saenger, 303 U.S. 59, 164 (1938).
[318] United Gas Public Service Co. _v._ Texas, 303 U.S. 123, 143
(1938).
[319] 279 U.S. 159 (1929).
[320] Lane _v._ Wilson, 307 U.S. 268, 274 (1939). It is fairly obvious,
of course, that whether State courts have exceeded their powers under
the State Constitution is not a federal question. This rule was applied
in Schuylkill Trust Co. _v._ Pennsylvania, 302 U.S. 506, 512 (1938),
where it was contended that instead of construing a State statute, the
courts had actually amended it by a species of judicial legislation
prohibited by the State constitution.
[321] United States _v._ Ravara, 2 Dall. 297 (1793).
[322] Boers _v._ Preston, 111 U.S. 252 (1884).
[323] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).
[324] 280 U.S. 379, 383-384 (1930).
[325] 11 Wheat. 467 (1826).
[326] 135 U.S. 403, 432 (1890).
[327] Ex parte Gruber, 269 U.S. 302 (1925).
[328] 1 Stat. 73 (1789).
[329] _See_ W.W. Willoughby, The Constitutional Law of the United
States, III, 1339, 1347 (New York, 1929).
[330] Willoughby, _op. cit._, III, 1339.
[331] 1 Stat. 73, Sec. 9 (1789).
[332] Justice Washington in Davis _v._ Brig Seneca, 21 Fed. Cas. No.
12,670 (1829).
[333] The "Vengeance," 3 Dall. 297 (1796); The "Schooner Sally," 2 Cr.
406 (1805); The "Schooner Betsey," 4 Cr. 443 (1808); The "Samuel," 1
Wheat. 9 (1816); The "Octavia," 1 Wheat. 20 (1816).
[334] New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344, 386
(1848).
[335] Waring _v._ Clarke, 5 How. 441 (1847); Ex parte Easton, 95 U.S. 68
(1877); North Pacific S.S. Co. _v._ Hall Brothers M.R. & S. Co., 249
U.S. 119 (1919); Grant Smith-Porter Ship Co. _v._ Rohde, 257 U.S. 469
(1922).
[336] Sheppard _v._ Taylor, 5 Pet. 675, 710 (1831).
[337] New England M. Ins. Co. _v._ Dunham, 11 Wall. 1, 31 (1871).
[338] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900).
[339] Atlee _v._ Northwestern Union P. Co., 21 Wall. 389 (1875); Ex
parte McNiel, 13 Wall. 236 (1872).
[340] O'Brien _v._ Miller, 168 U.S. 287 (1897); The "Grapeshot" _v._
Wallerstein, 9 Wall. 129 (1870).
[341] New Bedford Dry Dock Co. _v._ Purdy, 258 U.S. 95 (1922); North
Pac. S.S. Co. _v._ Hall Bros. M.R. & S. Co., 249 U.S. 119 (1919); The
General Smith, 4 Wheat. 438 (1819).
[342] New Jersey Steam Nav. Co. _v._ Merchants' Bank, 6 How. 344 (1848).
[343] Ex parte Easton, 95 U.S. 68 (1877).
[344] Andrews _v._ Wall, 3 How. 568 (1845).
[345] Janney _v._ Columbia Ins. Co., 10 Wheat. 411, 412, 415, 418
(1825), cited by Justice Story in The "Tilton," 23 Fed. Cas. No. 14,054
(1830).
[346] 95 U.S. 68, 72 (1877).
[347] The "Belfast" _v._ Boon, 7 Wall. 624 (1869).
[348] Ex parte Garnett, 141 U.S. 1 (1891).
[349] The "City of Panama," 101 U.S. 453 (1880); _see also_ Kenward _v._
"Admiral Peoples," 295 U.S. 649 (1935); The "Harrisburg," 119 U.S. 199
(1886). Although a suit for damages for wrongful death will not lie in
the courts of the United States under the general maritime law,
admiralty courts will enforce a State law creating liability for
wrongful death. Just _v._ Chambers, 312 U.S. 383 (1941).
[350] The "Raithmoor," 241 U.S. 166 (1916); Erie R. Co. _v._ Erie &
Western T. Co., 204 U.S. 220 (1907). _See also_ Canadian Aviator _v._
United States, 324 U.S. 215 (1945).
[351] L'Invincible, 1 Wheat. 238 (1816). _See also_ In re Fassett, 142
U.S. 479 (1892).
[352] Sherlock _v._ Alling, 93 U.S. 99, 104 (1876). _See also_ Old
Dominion S.S. Co. _v._ Gilmore (The "Hamilton"), 207 U.S. 398 (1907).
[353] Jennings _v._ Carson, 4 Cr. 2 (1807); Taylor _v._ Carryl, 20 How.
583 (1857).
[354] Thirty Hogsheads of Sugar _v._ Boyle, 9 Cr. 191 (1815); The Siren,
13 Wall. 389, 393 (1871).
[355] Hudson _v._ Guestier, 4 Cr. 293 (1808).
[356] La Vengeance, 3 Dall. 297 (1796); Church _v._ Hubbart, 2 Cr. 187
(1804); The Schooner Sally, 2 Cr. 406 (1805).
[357] The Brig. Ann, 9 Cr. 289 (1815); The Sarah, 8 Wheat. 391 (1823);
Maul _v._ United States, 274 U.S. 501 (1927).
[358] Section 9 of the original Judiciary Act, since carried over in 28
U.S.C.A. Sec. 1333, saves to suitors such a common law remedy.
[359] For example, the Court stated in The "Moses Taylor" _v._ Hammons,
4 Wall. 411, 431 (1867), that a proceeding _in rem_ as used in the
admiralty courts, is not a remedy afforded by the common law and that a
proceeding _in rem_ is essentially a proceeding possible only in
admiralty.
[360] 318 U.S. 133 (1943). In the course of his opinion for the Court
which contains a lengthy historical account of Admiralty jurisdiction in
this country, Chief Justice Stone cited Smith _v._ Maryland, 18 How. 71
(1855), where the Court without discussion sustained the seizure and
forfeiture of a vessel in a judgment _in rem_ of a State court for
violation of a Maryland fishing law within the navigable waters of the
State.
[361] Judiciary Act of 1789, 1 Stat. 73, Sec. 9; La Vengeance, 3 Dall. 297
(1796); United States _v._ The Schooner Sally, 2 Cr. 406 (1805); United
States _v._ Schooner Betsey and Charlotte, 4 Cr. 443 (1808); Whelan _v._
United States, 7 Cr. 112 (1812); The Samuel, 1 Wheat. 9 (1816).
[362] Hendry _v._ Moore, 318 U.S. 133, 141 (1943).
[363] Charles Warren, The Supreme Court in United States History, II,
93-95 (Boston, 1922).
[364] 10 Wheat. 428 (1825).
[365] 5 How. 441 (1847). _See also_ New Jersey Steam Nav. Co. _v._
Merchants' Bank, 6 How. 344 (1848). Aside from rejecting English rules,
Waring _v._ Clarke did not affect the rule concerning the ebb and flow
of the tide, inasmuch as the collision occurred within the ebb and flow
of the tide, though within the body of a county. Citing Peyroux _v._
Howard, 7 Pet. 324 (1833); The "Orleans" _v._ Phoebus, 11 Pet. 175
(1837); The "Thomas Jefferson," 10 Wheat. 328 (1825); United States _v._
Coombs, 12 Pet. 72 (1838).
[366] 12 How. 443 (1852).
[367] Soon afterwards in Jackson _v._ Steamboat Magnolia, 20 How. 296
(1858), the Court rejected what was left of narrow doctrines of the
extent of admiralty jurisdiction by holding that a collision on the
Alabama river above tidal flow and wholly within the State of Alabama
came within the grant of admiralty jurisdiction in the Judiciary Act of
1789 which extended it "to rivers navigable from the sea * * * as well
as upon the high seas."
[368] _See_ Warren, II, 512-513.
[369] 109 U.S. 629 (1884); _see also_ Perry _v._ Haines, 191 U.S. 17
(1903) where the admiralty jurisdiction was extended to inland canals.
[370] 10 Wall. 557 (1871).
[371] Ibid. 563. _See also_ The Montello, 20 Wall. 430 (1874), where
this doctrine was applied to the Fox River in Wisconsin after it had
been improved to become navigable.
[372] 141 U.S. 1, 12-15 (1891). This case contains a good review of
admiralty cases to the time of its decision.
[373] 311 U.S. 377, 407-410 (1940).
[374] 316 U.S. 31, 41 (1942).
[375] 3 Wheat. 336 (1818). _See also_ Manchester _v._ Massachusetts, 139
U.S. 240 (1891) which followed this rule and which seems to contain a
rule analogous to the "silence of Congress" doctrine applied in cases
involving State legislation which affect interstate commerce.
[376] Ibid. 389.
[377] The St. Lawrence, 1 Bl. 522, 527 (1862).
[378] The "Lottawanna," 21 Wall. 558, 576, (1875); _see also_ Janney
_v._ Columbian Ins. Co., 10 Wheat. 411, 418 (1825), where it was held
that the admiralty jurisdiction rests on the grant in the Constitution
and can only be exercised under the laws of the United States extending
that grant to the respective courts of the United States.
[379] 4 Wall. 411, 431, (1867); The Hine _v._ Trevor, 4 Wall. 555
(1867).
[380] Knapp, Stout & Co. _v._ McCaffrey, 177 U.S. 638 (1900); Red Cross
Line _v._ Atlantic Fruit Co., 264 U.S. 109 (1924).
[381] Chelentis _v._ Luckenbach S.S. Co., 247 U.S. 372 (1918).
[382] Rodd _v._ Heartt, 21 Wall. 558 (1875).
[383] Old Dominion S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907).
[384] Ibid.
[385] 312 U.S. 383 (1941).
[386] 244 U.S. 205 (1917).
[387] Ibid. 202, 215-218. This was a five to four decision with Justices
Holmes, Pitney, Brandeis, and Clarke dissenting. Justice Holmes' dissent
is notable among other reasons for his epigrams that "Judges do and must
legislate, but they can do so only interstitially; they are confined
from molar to molecular motions," ibid. 221; and that "the common law is
not a brooding omnipresence in the sky but the articulate voice of some
sovereign or some quasi-sovereign that can be identified." Ibid. 222.
Justice Pitney attacked the decision as unsupported by precedent and
contended that article III speaks only of jurisdiction and does not
prescribe the procedural or substantive law by which the exercise of
admiralty jurisdiction is to be governed. Ibid. 225-229.
[388] 40 Stat. 395 (1917).
[389] 253 U.S. 149 (1920).
[390] Ibid. 160. For the discussion of the statute as an invalid
delegation of power, _see_ ibid. 163-166. Justice Holmes wrote a dissent
in which Justices Pitney, Brandeis and Clarke concurred.
[391] 42 Stat. 634 (1922); overturned in Washington _v._ W.C. Dawson &
Co., 264 U.S. 219 (1924).
[392] 44 Stat. 1424.
[393] Nogueira _v._ New York, N.H. & H.R. Co., 281 U.S. 128 (1930);
Vancouver S.S. Co. _v._ Rice, 288 U.S. 445 (1933).
[394] 244 U.S. 205, 216.
[395] 317 U.S. 249 (1942).
[396] Ibid. 252.
[397] Ibid. 253. Citing Baizley Iron Works _v._ Span, 281 U.S. 222, 230
(1930).
[398] 317 U.S. 249 (1942). Cases cited as strengthening the claim were
Sultan Ry. & Timber Co. _v._ Dept. of Labor, 277 U.S. 135 (1928); Grant
Smith-Porter Co. _v._ Rohde, 257 U.S. 469 (1922); Millers' Underwriters
_v._ Braud, 270 U.S. 59 (1926); Ex parte Rosengrant, 213 Ala. 202 (104
So. 409), affirmed 273 U.S. 664 (1927); State Industrial Board of New
York _v._ Terry & Tench Co., 273 U.S. 639 (1926); Alaska Packers Asso.
_v._ Industrial Accident Commission, 276 U.S. 467 (1928). Cases cited
against the claim were Baizley Iron Works _v._ Span, 281 U.S. 222
(1930); Gonsalves _v._ Morse Dry Dock Co., 266 U.S. 171 (1924); Nogueira
_v._ N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930); Northern Coal & Dock
Co. _v._ Strand, 278 U.S. 142 (1928); Employers' Liability Assurance Co.
_v._ Cook, 281 U.S. 233 (1930). Justice Black _also_ cites Stanley
Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L.J. 472
(1929). In the Davis case the Court was not guilty of exaggeration when
it declared that "the very closeness of the cases cited * * * has caused
much serious confusion," and went on to picture rather vividly the
jurisdictional dilemma of an injured employee who might suffer great
financial loss as a result of the delay and expense if he guessed wrong,
and might even discover that his claim was "barred by the statute of
limitations in the proper forum while he was erroneously pursuing it
elsewhere." 317 U.S. 249, 254. Likewise the dilemma affected employers
who might not be protected by contributions to a State fund and at the
same time be liable for substantial additional payments. The Court had
harsh words for the Jensen rule but indicated that its reversal would
not solve the problem. Ibid. 256. Justice Black also pointed to Parker
_v._ Motor Boat Sales, 314 U.S. 244 (1941), where the Court, after
stating that Congress by the Longshoremen's Act accepted the Jensen line
of demarcation between State and federal jurisdiction, had proceeded to
hold that, in shadowy cases where the claimant was in a twilight zone he
was entitled to recover under the State statute in the absence of
federal administrative action under the Longshoremen's Act on the ground
of its constitutionality. In brief it would seem that in shadowy cases a
claimant may elect either a federal court applying the Longshoremen's
Act or a State forum applying the State compensation law.
[399] 317 U.S. 219, 259.
[400] 21 Wall. 558 (1875).
[401] Ibid. 572.
[402] Ibid. 574-575.
[403] The "Lottawanna," 21 Wall. 558, 577.
[404] In re Garnett, 141 U.S. 1, 12 (1891).
[405] Ibid. 14.
[406] 244 U.S. 205, 215 (1917), citing Butler _v._ Boston & Savannah
S.S. Co., 130 U.S. 527 (1889), and In re Garnett, 141 U.S. 1 (1891).
[407] 253 U.S. 149, 160 (1920).
[408] 328 U.S. 1, 5 (1946), citing O'Donnell _v._ Great Lakes Dredge &
Dock Co., 318 U.S. 36, 40 (1943), and the cases cited therein.
[409] Davis _v._ Department of Labor, 317 U.S. 249 (1942).
[410] 2 Commentaries (2d ed., Boston, 1851), Sec. 1674.
[411] Dugan _v._ United States, 3 Wheat. 172 (1818).
[412] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888);
United States _v._ Beebe, 127 U.S. 338 (1888); United States _v._
American Bell Tel. Co., 128 U.S. 315 (1888).
[413] United States _v._ San Jacinto Tin Co., 125 U.S. 273 (1888).
[414] 28 U.S.C.A. Sec. 1331-1332. The original jurisdiction of the Supreme
Court does not extend to suits brought by the United States against
persons or corporations alone. _See also_ Revised Statutes, Sec. 565, 629.
United States _v._ West Virginia, 295 U.S. 463 (1935).
[415] 136 U.S. 211 (1890).
[416] United States _v._ Texas, 143 U.S. 621 (1892).
[417] Ibid. 642-646. This suit, it may be noted, was specifically
authorized by the act of Congress of May 2, 1890, providing for a
temporary government for the Oklahoma territory to determine the
ownership of Greer County. 26 Stat. 81, 92, Sec. 25.
[418] United States _v._ Minnesota, 270 U.S. 181 (1926). For an earlier
suit against a State by the United States, _see_ United States _v._
Michigan, 190 U.S. 379 (1903).
[419] 295 U.S. 463, 471-475 (1935).
[420] United States _v._ Utah, 283 U.S. 64 (1931).
[421] United States _v._ California, 332 U.S. 19 (1947).
[422] United States _v._ Louisiana, 339 U.S. 699 (1950); United States
_v._ Texas, 339 U.S. 707 (1950).
[423] 2 Dall. 419, 478 (1793).
[424] 6 Wheat. 264, 412 (1821).
[425] 8 Pet. 436, 444 (1834).
[426] United States _v._ McLemore, 4 How. 286 (1846); Hill _v._ United
States, 9 How. 386, 389 (1850); DeGroot _v._ United States, 5 Wall. 419,
431 (1867); United States _v._ Eckford, 6 Wall. 484, 488 (1868); The
Siren, 7 Wall. 152, 154 (1869); Nichols _v._ United States, 7 Wall. 122,
126 (1869); The Davis, 10 Wall. 15, 20 (1870); Carr _v._ United States,
98 U.S. 433, 437-439 (1879). "It is also clear that the Federal
Government, in the absence of its consent, is not liable in tort for the
negligence of its agents or employees. Gibbons _v._ United States, 8
Wall. 269, 275 (1869); Peabody _v._ United States, 231 U.S. 530, 539
(1913); Keokuk & Hamilton Bridge Co. _v._ United States, 260 U.S. 125,
127 (1922). The reason for such immunity as stated by Mr. Justice Holmes
in Kawananakoa _v._ Polyblank, 205 U.S. 349, 353 (1907), is because
'there can be no legal right as against the authority that makes the law
on which the right depends.' _See also_ The Western Maid, 257 U.S. 419,
433 (1922). As the Housing Act does not purport to authorize suits
against the United States as such, the question is whether the
Authority--which is clearly an agency of the United States--partakes of
this sovereign immunity. The answer must be sought in the intention of
the Congress. Sloan Shipyards case, 258 U.S. 549, 570 (1922); Federal
Land Bank _v._ Priddy, 295 U.S. 229, 231 (1935). This involves a
consideration of the extent to which other Government-owned corporations
have been held liable for their wrongful acts." 39 Op. Atty. Gen. 559,
562 (1938).
[427] 106 U.S. 196 (1882).
[428] Lonergan _v._ United States, 303 U.S. 33 (1938).
[429] United States _v._ N.Y. Rayon Importing Co., 329 U.S. 654 (1947).
[430] United States _v._ Shaw, 309 U.S. 495 (1940). Here it was said
that the reasons for sovereign immunity "partake somewhat of dignity and
decorum, somewhat of practical administration, somewhat of the political
desirability of an impregnable legal citadel where government, as
distinct from its functionaries may operate undisturbed by the demands
of litigants," ibid. 500-501. The Court went on to hold that when the
United States took possession of the assets of Fleet Corporation and
assumed its obligations, it did not waive its immunity from suit in a
State court on a counterclaim based on the Corporation's breach of
contract, ibid. 505. Any consent to be sued will not be held to embrace
action in the federal courts unless the language giving consent is
clear. Great Northern Life Ins. Co. _v._ Read, 322 U.S. 47 (1944).
[431] Minnesota _v._ United States, 305 U.S. 382 (1939). The United
States was held here to be an indispensable party defendant in a
condemnation proceeding brought by a State to acquire a right of way
over lands owned by the United States and held in trust for Indian
allottees.
[432] Brady _v._ Roosevelt S.S. Co., 317 U.S. 575 (1943).
[433] United States _v._ Lee, 106 U.S. 196, 207-208 (1882). The
principle of sovereign immunity was further disparaged in a brief essay
by Justice Miller on the subject of the rule of law, as follows: "Under
our system the _people_ * * * are sovereign. Their rights, whether
collective or individual, are not bound to give way to a sentiment of
loyalty to the person of a monarch. The citizen here knows no person,
however near to those in power, or however powerful himself, to whom he
need yield the rights which the law secures to him when it is well
administered. When he, in one of the courts of competent jurisdiction,
has established his right to property, there is no reason why deference
to any person, natural or artificial, not even the United States, should
prevent him from using the means which the law gives him for the
protection and enforcement of that right." Ibid. 208-209.
[434] 204 U.S. 331 (1907).
[435] Louisiana _v._ McAdoo, 234 U.S. 627, 628 (1914).
[436] 162 U.S. 255 (1896). At page 271 Justice Gray endeavors to
distinguish between this and the Lee Case. It was Justice Gray who spoke
for the dissenters in the Lee Case.
[437] Land _v._ Dollar, 330 U.S. 731, 737 (1947). Justice Douglas cites
for this proposition Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 452
(1883); Tindal _v._ Wesley, 167 U.S. 204 (1897); Smith _v._ Reeves, 178
U.S. 436, 439 (1900); Scranton _v._ Wheeler, 179 U.S. 141, 152, 153
(1900); Philadelphia Co. _v._ Stimson, 223 U.S. 605, 619, 620 (1912);
Goltra _v._ Weeks, 271 U.S. 536 (1926). This last case actually extended
the rule of the Lee Case and was virtually overruled in Larson _v._
Domestic & Foreign Corp., 337 U.S. 682 (1949).
[438] Oregon _v._ Hitchcock, 202 U.S. 60 (1906); Louisiana _v._
Garfield, 211 U.S. 70 (1908); New Mexico _v._ Lane, 243 U.S. 52 (1917);
Wells _v._ Roper, 246 U.S. 335 (1918); Morrison _v._ Work, 266 U.S. 481
(1925); Minnesota _v._ United States, 305 U.S. 382 (1939); Mine Safety
Appliances Co. _v._ Forrestal, 326 U.S. 371 (1945). _See also_ Minnesota
_v._ Hitchcock, 185 U.S. 373 (1902). For a review of the cases dealing
with sovereign immunity _see_ Joseph D. Block, Suits Against Government
Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060
(1946).
[439] Cunningham _v._ Macon & B.R. Co., 109 U.S. 446, 451 (1883), quoted
by Chief Justice Vinson in the opinion of the Court in Larson _v._
Domestic & Foreign Corp., 337 U.S. 682, 698 (1949).
[440] Larson _v._ Domestic & Foreign Corp., _supra_, 708. Justice
Frankfurter's dissent also contains a useful classification of immunity
cases and an appendix listing them.
[441] 330 U.S. 731, 735 (1947). The italics are added.
[442] 337 U.S. 682 (1949).
[443] Ibid. 689-697.
[444] Ibid. 701-702. This rule was applied in United States ex rel.
Goldberg _v._ Daniels, 231 U.S. 218 (1914), which also involved a sale
of government surplus property. After the Secretary of the Navy rejected
the highest bid, plaintiff sought mandamus to compel delivery. The suit
was held to be against the United States. _See also_ Perkins, Secretary
of Labor _v._ Lukens Steel Co., 310 U.S. 113 (1940), which held that
prospective bidders for contracts derive no enforceable rights against a
federal official for an alleged misinterpretation of his government's
authority on the ground that an agent is answerable only to his
principal for misconstruction of instructions, given for the sole
benefit of the principal. In the Larson Case the Court not only refused
to follow Goltra _v._ Weeks, 271 U.S. 536 (1926), but in effect
overruled it. The Goltra Case involved an attempt of the Government to
repossess barges which it had leased under a contract reserving the
right to repossess in certain circumstances. A suit to enjoin
repossession was held not to be a suit against the United States on the
ground that the actions were personal and in the nature of a trespass.
[445] 337 U.S. 682, 703-704. Justice Frankfurter, dissenting, would have
applied the rule of the Lee Case.
[446] Larson _v._ Domestic & Foreign Corp., 337 U.S. 682, 709-710
(1949).
[447] Oregon _v._ Hitchcock, 202 U.S. 60 (1906); Louisiana _v._ McAdoo,
224 U.S. 627 (1914); Wells _v._ Roper, 246 U.S. 335 (1918). _See also_
Belknap _v._ Schild, 161 U.S. 10 (1896); and International Postal Supply
Co. _v._ Bruce, 194 U.S. 601 (1904).
[448] Rickert Rice Mills _v._ Fontenot, 297 U.S. 110 (1936); and
Tennessee Electric Power Co. _v._ Tennessee Valley Authority, 306 U.S.
118 (1939) which held that one threatened with direct and special injury
by the act of an agent of the Government under a statute may challenge
the constitutionality of the statute in a suit against the agent.
[449] Philadelphia Co. _v._ Stimson, 223 U.S. 605 (1912); Waite _v._
Macy, 246 U.S. 606 (1918).
[450] United States _v._ Lee, 106 U.S. 196 (1882); Goltra _v._ Weeks,
271 U.S. 536 (1926); Ickes _v._ Fox, 300 U.S. 82 (1937); Land _v._
Dollar, 330 U.S. 731 (1947).
[451] 306 U.S. 381 (1939).
[452] Federal Housing Authority _v._ Burr, 309 U.S. 242 (1940).
Nonetheless, the Court held that a Congressional waiver of immunity in
the case of a government corporation did not mean that funds or property
of the United States can be levied on to pay a judgment obtained against
such a corporation as the result of waiver of immunity.
[453] United States _v._ United States Fidelity Co., 309 U.S. 506
(1940).
[454] Charles Warren, The Supreme Court and Disputes Between States,
Bulletin of the College of William and Mary, Vol. 34, No. 5, pp. 7-11
(1940). For a more comprehensive treatment of backgrounds as well as the
general subject, _see_ Charles Warren, The Supreme Court and Sovereign
States, (Princeton, 1924).
[455] Warren, The Supreme Court and Disputes Between States, p. 13.
However, only three such suits were brought in this period, 1789-1849.
During the next 90 years, 1849-1939, at least twenty-nine such suits
were brought. Ibid. 13, 14.
[456] 2 Dall. 419 (1793).
[457] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838).
[458] Ibid. 736-737.
[459] Ibid. 737. Chief Justice Taney dissented because of his belief
that the issue was not one of property in the soil, but of sovereignty
and jurisdiction, and hence political. Ibid. 752-753. For different
reasons, it should be noted, a suit between private parties respecting
soil or jurisdiction of two States, to which neither State is a party
does not come within the original jurisdiction of the Supreme Court.
Fowler _v._ Lindsay, 3 Dall. 411 (1799).
[460] 180 U.S. 208 (1901).
[461] Kansas _v._ Colorado, 206 U.S. 46 (1907).
[462] 283 U.S. 336 (1931).
[463] Ibid. 342. _See also_ Nebraska _v._ Wyoming, 325 U.S. 589 (1945),
for the restatement of the familiar principle that the power of
apportionment among several States of waters of an interstate river
where the demands of the users exceeds the supply is a matter of
sufficient importance and dignity as to be justiciable in the Supreme
Court.
[464] South Dakota _v._ North Carolina, 192 U.S. 286 (1904).
[465] Virginia _v._ West Virginia, 220 U.S. 1 (1911). This case is also
significant for Justice Holmes' statement that, "The case is to be
considered in the untechnical spirit proper for dealing with a
quasi-international controversy, remembering that there is no municipal
code governing the matter, and that this Court may be called on to
adjust differences that cannot be dealt with by Congress or disposed of
by the legislature of either State alone." Ibid. 27.
[466] Kentucky _v._ Indiana, 281 U.S. 163 (1930).
[467] Texas _v._ Florida et al., 306 U.S. 398 (1939).
[468] Pennsylvania and Ohio _v._ West Virginia, 262 U.S. 553 (1923).
[469] 12 Pet. 657 (1838).
[470] 6 Wheat. 264, 378 (1821).
[471] 291 U.S. 286 (1934).
[472] Massachusetts _v._ Missouri, 308 U.S. 1, 15-16 (1939), citing
Florida _v._ Mellon, 273 U.S. 12 (1927).
[473] 306 U.S. 398 (1939).
[474] 308 U.S. 1, 17, citing Oklahoma _v._ Atchison, T. & S.F.R. Co.,
220 U.S. 277, 286 (1911), and Oklahoma _v._ Cook, 304 U.S. 387, 394
(1938). _See also_ New Hampshire _v._ Louisiana, 108 U.S. 76 (1883),
which held that a State cannot bring a suit on behalf of its citizens to
collect on bonds issued by another State, and Louisiana _v._ Texas, 176
U.S. 1 (1900), which held that a State cannot sue another to prevent
maladministration of quarantine laws.
[475] 308 U.S. 1, 17.
[476] Ibid. 19.
[477] The various litigations of Virginia _v._ West Virginia are to be
found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911);
222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S.
202 (1915); 241 U.S. 531 (1916); 246 U.S. 565 (1918).
[478] 246 U.S. 565, 591.
[479] Ibid. 600.
[480] Ibid. 601.
[481] Warren, The Supreme Court and Sovereign States, 79.
[482] 2 Dall. 419 (1793).
[483] Massachusetts _v._ Mellon, 262 U.S. 447 (1923); Florida _v._
Mellon, 273 U.S. 12 (1927); New Jersey _v._ Sargent, 269 U.S. 328
(1926).
[484] Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871);
California _v._ Southern Pacific Co., 157 U.S. 229 (1895); Minnesota
_v._ Northern Securities Co., 184 U.S. 199 (1902).
[485] Wisconsin _v._ Pelican Ins. Co., 127 U.S. 265 (1888).
[486] 4 Wall. 475 (1867).
[487] 6 Wall. 50 (1868).
[488] 262 U.S. 447 (1923).
[489] 273 U.S. 12 (1927).
[490] Oklahoma _v._. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911);
Oklahoma _v._ Cook, 304 U.S. 387 (1938).
[491] 6 Wheat. 264, 398-399 (1821).
[492] Pennsylvania _v._ Quicksilver Min. Co., 10 Wall. 553 (1871).
[493] California _v._ Southern Pacific Co., 157 U.S. 229 (1895);
Minnesota _v._ Northern Securities Co., 184 U.S. 199 (1902).
[494] 6 Wheat. 264, 398-399.
[495] 127 U.S. 265 (1888).
[496] 2 Dall. 419, 431-432 (1793).
[497] 127 U.S. 265, 289-300. This case also follows the general rule
that a corporation chartered by the laws of a State, is a citizen of
that State for purposes of federal jurisdiction.
[498] 304 U.S. 387 (1938).
[499] 220 U.S. 277, 286-289 (1911).
[500] 316 U.S. 159 (1942).
[501] 220 U.S. 277 (1911).
[502] 324 U.S. 439 (1945).
[503] 206 U.S. 230 (1907). Here the Court entertained a suit by Georgia
and enjoined the Copper company from discharging noxious gases from
their works in Tennessee over Georgia's territory.
[504] 324 U.S. 439, 447-448, citing and quoting Georgia _v._ Tennessee
Copper Co., 206 U.S. 230, 237 (1907).
[505] 324 U.S. 439, 450, citing Missouri _v._ Illinois, 180 U.S. 208,
219-224, 241 (1901); Virginia _v._ West Virginia, 246 U.S. 565, 599
(1918); Georgia _v._ Tennessee Copper Co., 206 U.S. 230, 237 (1907).
[506] Ibid. 451, 468. Chief Justice Stone, joined by Justices Roberts,
Frankfurter, and Jackson dissented on the ground that the suit actually
was one for a district court, that a State is without standing to
maintain suit for injuries sustained by its citizens and residents for
which they may sue in their own behalf, and that as presented the suit
was not one in which a court of equity could give effective relief.
[507] 2 Cr. 445, 452-453 (1805).
[508] Ibid. 453.
[509] New Orleans _v._ Winter et al., 1 Wheat. 91 (1816).
[510] 54 Stat. 143 (1940); 28 U.S.C.A. 1332.
[511] 337 U.S. 582 (1949).
[512] Ibid. 583-604.
[513] Ibid. 604-625.
[514] Ibid. 626-646.
[515] Ibid. 646-655.
[516] Ibid. 655.
[517] Knox _v._ Greenleaf, 4 Dall. 360 (1802).
[518] Shelton _v._ Tiffin, 6 How. 163 (1848).
[519] Williamson _v._ Osenton, 232 U.S. 619 (1014).
[520] Shelton _v._ Tiffin, 6 How. 163 (1848).
[521] Williamson _v._ Osenton, 232 U.S. 619 (1914).
[522] Jones _v._ League, 18 How. 76 (1855).
[523] Shelton _v._ Tiffin, 6 How. 163 (1848).
[524] 5 Cr. 61, 86 (1809).
[525] 14 Pet. 60 (1840).
[526] Strawbridge _v._ Curtiss, 3 Cr. 267 (1806). The Slocomb Case had
to be dismissed because two members of the defendant corporation were
citizens of the same State as the plaintiffs.
[527] 2 How. 497 (1844).
[528] Ibid. 558.
[529] Muller _v._ Dows, 94 U.S. 444, 445 (1877). This fiction had its
beginning in Marshall _v._ Baltimore & Ohio R. Co., 16 How. 314, 329
(1854) and attained final approval in St. Louis & S.F. Ry. Co. _v._
James, 161 U.S. 545, 554 (1896).
[530] John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New
York, 1927), 34.
[531] Dodge _v._ Woolsey, 18 How. 331 (1856); Mechanics' & Traders' Bank
_v._ Debolt, 18 How. 380 (1856).
[532] Gray, _op. cit._, 185-186. Although Justice Wayne criticized the
Strawbridge Case as going too far, later developments in determining the
citizenship of corporations, have enabled the Court to restore it to its
original status. Consequently the rule still requires that to maintain a
diversity proceeding all the parties on one side must be citizens of
different States from all the parties on the other side. Treinies _v._
Sunshine Mining Co., 308 U.S. 66 (1939); City of Indianapolis _v._ Chase
National Bank, 314 U.S. 63 (1941).
[533] _See_ Southern Realty Co. _v._ Walker, 211 U.S. 603 (1909), where
two Georgians who conducted all of that business in Georgia created a
sham corporation in South Dakota for the sole purpose of bringing suits
in the federal courts which ordinarily would have been brought in the
Georgia courts. Diversity jurisdiction was held not to exist because of
collusion.
[534] Black and White Taxicab & T. Co. _v._ Brown & Yellow Taxicab & T.
Co., 276 _v._ U.S. 518 (1928).
[535] 16 Pet. 1 (1842).
[536] 16 Pet. 1.
[537] Ibid. 19. Justice Story concluded this portion of the opinion as
follows: "The law respecting negotiable instruments may be truly
declared in the language of Cicero, adopted by Lord Mansfield in Luke
_v._ Lyde, 2 Burr. 883, 887, to be in great measure, not the law of a
single country only, but of the commercial world. _Non erit alia lex
Romae, alia Athenis; alia nunc, alia posthac, sed et apud omenes gentes,
et omni tempore una eademque lex obtinebit._" Ibid. 9.
[538] _See_ Simeon E. Baldwin, The American Judiciary (New York, 1920),
169-170. _See also_ Justice Catron's statement in Swift _v._ Tyson, 16
Pet. 1, 23.
[539] The Tyson doctrine was extended to wills in Lane _v._ Vick, 3 How.
464 (1845); to torts in Chicago City _v._ Robbins, 2 Bl. 418 (1862); to
real estate titles and the rights of riparian owners in Yates _v._
Milwaukee, 10 Wall. 497 (1870); to mineral conveyances in Kuhn _v._
Fairmont Coal Co., 215 U.S. 349 (1910); to contracts in Rowan _v._
Runnels, 5 How. 134 (1847); and to the right to exemplary or punitive
damages in Lake Shore & M.S.R. Co. _v._ Prentice, 147 U.S. 101 (1893).
By 1888 there were 28 kinds of cases in which federal and State courts
applied different rules of the common law. _See_ George C. Holt, The
Concurrent Jurisdiction of the Federal and State Courts (New York,
1888), 159-188.
[540] Rowan _v._ Runnels, 5 How. 134 (1847); Gelpcke _v._ Dubuque, 1
Wall. 175 (1864).
[541] Williamson _v._ Berry, 8 How. 495 (1850); Pease _v._ Peck, 18 How.
595 (1856); Watson _v._ Tarpley, 18 How. 517 (1856).
[542] Lane _v._ Vick, 3 How. 464 (1845); Williamson _v._ Berry, 8 How.
495 (1850); Gelpcke _v._ Dubuque, 1 Wall. 175 (1864).
[543] 149 U.S. 308, 401-404 (1893).
[544] 215 U.S. 349, 370 (1910).
[545] 276 U.S. 518 (1928).
[546] Ibid. 533. Justice Holmes was influenced in part by the article of
Charles Warren, New Light On The History Of The Federal Judiciary Act of
1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced
evidence to show that Justice Story's interpretation in the Tyson Case
was contrary to the intention of the framers of the act. Mr. Warren did
not, however, contend that the Tyson rule was unconstitutional. Justice
Holmes was joined in his dissent by Justices Brandeis and Stone. In
addition to judicial dissatisfaction with the Tyson rule as manifested
in dissents, disapproval in Congressional quarters resulted in bills by
Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th
Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27,
1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the
Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st
Cong., 1st. sess.
[547] 293 U.S. 335 (1934).
[548] This concept was first used by Justice Bradley in Burgess _v._
Seligman, 107 U.S. 21 (1883).
[549] 293 U.S. 335, 339.
[550] 304 U.S. 64 (1938).
[551] 304 U.S. 64, 69-70, 77-78.
[552] Ibid. 79-80.
[553] 304 U.S. 64, 80-90.
[554] Ibid. 90, 91-92.
[555] 311 U.S. 223 (1940).
[556] 311 U.S. 169 (1940). This decision has been thoroughly criticized
by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762
(1941). _See also_ Mitchell Wendell, Relations Between Federal and State
Courts (New York, 1949), 209-223. This book contains a good account of
the operation of the Tyson and Tompkins rules, pp. 113-247.
[557] 333 U.S. 153 (1948). For other cases applying the rule that
decisions of State intermediate courts are binding unless there is
convincing evidence that the State law is otherwise, _see_ Six Companies
of California _v._ Highway Dist., 311 U.S. 180 (1940); Stoner _v._ New
York Life Ins. Co., 311 U.S. 464 (1940).
[558] Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941).
[559] 28 U.S.C.A. Sec. 1652; 62 Stat. 944 (1948). In 1938, the year of the
Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 Sec. 5) was
superseded; and from that time until the enactment of 62 Stat. 944, the
federal courts were guided in diversity cases by the Federal Rules of
Civil Procedure formulated by the Supreme Court by virtue of the
authority delegated it, in 1934, by 48 Stat. 1064.
[560] Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938).
[561] 326 U.S. 99 (1945).
[562] Ibid. 108-109.
[563] Ibid. 109. Justice Rutledge wrote a dissent in which Justice
Murphy concurred. Justice Rutledge objected to the rigid application of
a statute of limitations to suits in equity and to the implication that
Congress could not authorize federal courts to administer equitable
relief in accordance with the substantive rights of the parties,
notwithstanding State statutes of limitations barring such suits in
State courts. In his view, if any change were to be made, it was for
Congress and not the Court to make it. In line with this ruling _see_
Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949); _also_
Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949).
[564] 2 Story, Commentaries, 467 Sec. 1696 (2d. ed., 1851).
[565] An interesting case which reached the Supreme Court under this
clause was Pawlet _v._ Clark, 9 Cr. 292 (1815). In his opinion for the
Court, Justice Story took occasion to assert that grants of land by a
State to a town could not afterwards be repealed so as to divest the
town of its rights under the grant. Ibid. 326; _cf._ Trenton _v._ New
Jersey, 262 U.S. 182 (1923).
[566] The Exchange _v._ McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co.
_v._ S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola _v._ The
Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. _v._ United States, 304
U.S. 126, 134 (1938).
[567] Principality of Monaco _v._ Mississippi, 292 U.S. 313, 330 (1934).
[568] Ibid.
[569] The "Sapphire," 11 Wall. 164, 167 (1871).
[570] Ibid. 167. This case also held that a change in the person of the
sovereign does not affect the continuity or rights of national
sovereignty, including the right to bring suit, or to continue one that
has been brought.
[571] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938);
citing Jones _v._ United States, 137 U.S. 202, 212 (1890); Matter of
Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be
regarded as the legal representative of a foreign State is, of course, a
political question.
[572] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938);
citing United States _v._ The Thekla, 266 U.S. 328, 340, 341 (1924);
United States _v._ Stinson, 197 U.S. 200, 205 (1905); The Davis, 10
Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). _See also_ Ex parte
Republic of Colombia, 195 U.S. 604 (1904).
[573] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938).
Among other benefits which the Court cites as not extending to foreign
States as litigants include exemption from costs and from giving
discovery. Decisions are also cited to the effect that a sovereign
plaintiff "should so far as the thing can be done, be put in the same
position as a body corporate." Ibid, note 2, pp. 134-135.
[574] 5 Pet. 1, 16-20 (1831).
[575] Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809).
[576] Jackson _v._ Twentyman, 2 Pet. 136 (1829).
[577] Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172
(1871). _See_, however, Lacassagne _v._ Chapuis, 144 U.S. 119 (1892),
which held that a lower federal court had jurisdiction over a proceeding
to impeach its former decree, although the parties were new and were
both aliens.
[578] Browne _v._ Strode, 5 Cr. 303 (1809).
[579] 2 Dall. 419 (1793). For an earlier case where the point of
jurisdiction was not raised, _see_ Georgia _v._ Brailsford, 2 Dall. 402
(1792). For subsequent cases prior to 1861, _see_ Rhode Island _v._
Massachusetts, 12 Pet. 657 (1838); Florida _v._ Georgia, 17 How. 478
(1855).
[580] Kentucky _v._ Dennison, 24 How. 66, 98 (1861).
[581] 1 Cr. 137 (1803).
[582] Ibid. 174. _See also_ Wiscart _v._ Dauchy, 3 Dall. 321 (1796).
This exclusive interpretation of article III posed temporary
difficulties for Marshall in Cohens _v._ Virginia, 6 Wheat. 264 (1821),
where he gave a contrary interpretation to other provisions of the
Article. The exclusive interpretation as applied to original
jurisdiction of the Supreme Court has been followed in Ex parte Bollman,
4 Cr. 75 (1807); New Jersey _v._ New York, 5 Pet. 284 (1831); Ex parte
Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864);
and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex
parte Levitt, Petitioner, 302 U.S. 633 (1937), the Court was asked to
purge itself of Justice Black on the ground that his appointment to it
violated the second clause of section 6 of Article I. Although it
rejected petitioner's application, it refrained from pointing out that
it was being asked to assume original jurisdiction contrary to the
holding in Marbury _v._ Madison.
[583] 252 U.S. 416 (1920).
[584] 262 U.S. 447 (1923).
[585] 157 U.S. 229, 261 (1895). Here the Court refused to take
jurisdiction on the ground that the City of Oakland and the Oakland
Water Company, a citizen of California, were so situated that they would
have to be brought into the case, which would make it then a suit
between a State and citizens of another State and its own citizens. The
same rule was followed in New Mexico _v._ Lane, 243 U.S. 52, 58 (1917);
and in Louisiana _v._ Cummins, 314 U.S. 577 (1941). _See also_ Texas
_v._ Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the
original jurisdiction of the Supreme Court in specific classes of cases
_see_ the discussion of suits affecting ambassadors and suits between
States, _supra_, pp. 571, 591-593.
[586] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449 (1884).
[587] 127 U.S. 265 (1888).
[588] 1 Stat. 73, 80.
[589] 127 U.S. 265, 297. _Note also_ the dictum in Cohens _v._ Virginia,
6 Wheat. 264, 398-399 (1821) to the effect that "* * * the original
jurisdiction of the Supreme Court, in cases where a State is a party,
refers to those cases in which, according to the grant of power made in
the preceding clause, jurisdiction might be exercised in consequence of
the character of the party, and an original suit might be instituted in
any of the federal courts; not to those cases in which an original suit
might not be instituted in a federal court. Of the last description, is
every case between a State and its citizens, and, perhaps every case in
which a State is enforcing its penal laws. In such cases, therefore, the
Supreme Court cannot take original jurisdiction."
[590] Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930).
[591] 3 Dall. 321 (1796). Justice Wilson dissented from this holding and
contended that the appellate jurisdiction, as being derived from the
Constitution, could be exercised without an act of Congress or until
Congress made exceptions to it.
[592] Durousseau _v._ United States, 6 Cr. 307 (1810).
[593] 6 Wall. 318 (1868); 7 Wall. 506 (1869).
[594] 15 Stat. 44 (1868).
[595] 7 Wall. 506, 514. The Court also took occasion to reiterate the
rule that an affirmation of appellate jurisdiction is a negative of all
other and stated that as a result acts of Congress providing for the
exercise of jurisdiction had "come to be spoken of as acts granting
jurisdiction, and not as acts making exceptions to * * * it." It
continued grandly: "* * * judicial duty is not less fitly performed by
declining ungranted jurisdiction than in exercising firmly that which
the Constitution and the laws confer." Ibid. 513, 515.
[596] _See_ especially the parallel case of Ex parte Yerger, 8 Wall. 85
(1869). For cases following Ex parte McCardle, _see_ Railroad Co. _v._
Grant, 98 U.S. 398, 491 (1878); Kurtz _v._ Moffitt, 115 U.S. 487, 497
(1885); Cross _v._ Burke, 146 U.S. 82, 86 (1892); Missouri _v._ Missouri
Pacific R. Co., 292 U.S. 13, 15 (1934); Stephan _v._ United States, 319
U.S. 423, 426 (1943). _See also_ United States _v._ Bitty, 208 U.S. 393,
399-400 (1908), where it was held that there is no right to appeal to
the Supreme Court except as an act of Congress confers it.
[597] 105 U.S. 381 (1882).
[598] Ibid. 386. _See also_ Barry _v._ Mercein, 5 How. 103, 119 (1847);
National Exchange Bank _v._ Peters, 144 U.S. 570 (1892); American
Construction Co. _v._ Jacksonville T. & K.W.R. Co., 148 U.S. 372 (1893);
Colorado Central Consol. Min. Co. _v._ Turck, 150 U.S. 138 (1893); St.
Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281 (1908); Luckenbach S.S.
Co. _v._ United States, 272 U.S. 533 (1926).
[599] 1 Wheat. 304 (1816).
[600] Ibid. 374.
[601] Ibid. 331. This recognition, however, is followed by the statement
that "the whole judicial power of the United States should be at all
times, vested either in an original or appellate form, in some courts
created under its authority."
[602] 2 Commentaries, Sec. 1590-1595.
[603] 1 Stat. 73, Sec. 9-11.
[604] Ibid.
[605] Ibid. Sec. 14, 15, 17, 18.
[606] Ibid. Sec. 16.
[607] Dall. 8 (1799).
[608] Ibid. 9.
[609] Ex parte Bollman, 4 Cr. 75, 93 (1807). Two years later Chief
Justice Marshall in Bank of United States _v._ Deveaux, 5 Cr. 61 (1809),
held for the Court that the right to sue does not imply a right to sue
in a federal court unless conferred expressly by an act of Congress.
[610] 7 Cr. 32 (1812).
[611] Ibid. 33.
[612] Ibid.
[613] 12 Pet. 657, 721-722 (1838).
[614] 3 How. 236 (1845).
[615] Ibid. 244-245. To these sweeping assertions of legislative
supremacy Justices Story and McLean took vigorous exception. They denied
the authority of Congress to deprive the courts of power and vest it in
an executive official because "the right to construe the laws in all
matters of controversy is of the very essence of judicial power." In
their view the act as interpreted violated the principle of the
separation of powers, impaired the independence of the judiciary, and
merged the executive and judicial department. Dissent of Justice McLean,
pp. 264 and following.
[616] 8 How. 441 (1850).
[617] Ibid. 449.
[618] Rice _v._ M. & N.W.R. Co., 1 Bl. 358, 374 (1862); Mayor of
Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868); United States _v._
Eckford, 6 Wall. 484, 488 (1868); Ex parte Yerger, 8 Wall. 85, 104
(1868); case of the Sewing Machine Companies, 18 Wall. 553, 557-558
(1874); Morgan _v._ Gay, 19 Wall. 81, 83 (1874); Gaines _v._ Fuentes, 92
U.S. 10, 18 (1876); Jones _v._ United States, 137 U.S. 202, 211 (1890);
Holmes _v._ Goldsmith, 147 U.S. 150, 158 (1893); Johnson Steel Street
Rail Co. _v._ Wharton, 152 U.S. 252, 260 (1894); Plaquemines Tropical
Fruit Co. _v._ Henderson, 170 U.S. 511, 513-521 (1898); Stevenson _v._
Fain, 195 U.S. 165, 167 (1904); Kentucky _v._ Powers, 201 U.S. 1, 24
(1906); Venner _v._ Great Northern R. Co., 209 U.S. 24, 35 (1908); Ladew
_v._ Tennessee Copper Co., 218 U.S. 357, 358 (1910); Kline _v._ Burke
Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ Lauf _v._
E.G. Shinner & Co., 303 U.S. 323 (1938); Federal Power Commission _v._
Pacific Power & Light Co., 307 U.S. 156 (1939).
[619] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868). The
rule of Cary _v._ Curtis and Sheldon _v._ Sill was restated with
emphasis many years later in Kline _v._ Burke Construction Co., 260 U.S.
226, 233-234 (1922), where Justice Sutherland, speaking for the Court,
proceeded to say to article III, Sec. 1 and 2: "The effect of these
provisions is not to vest jurisdiction in the inferior courts over the
designated cases and controversies but to delimit those in respect of
which Congress may confer jurisdiction upon such courts as it creates.
Only the original jurisdiction of the Supreme Court is derived directly
from the Constitution. Every other court created by the general
government derives its jurisdiction wholly from the authority of
Congress. That body may give, withhold or restrict such jurisdiction at
its discretion, provided it be not extended beyond the boundaries fixed
by the Constitution. * * * The Constitution simply gives to the inferior
courts the capacity to take jurisdiction in the enumerated cases, but it
requires an act of Congress to confer it. * * * And the jurisdiction
having been conferred may, at the will of Congress, be taken away in
whole or in part; and if withdrawn without a saving clause all pending
cases though cognizable when commenced must fall."
[620] 56 Stat. 23 (1942).
[621] 319 U.S. 182 (1943).
[622] 321 U.S. 414 (1944).
[623] Ibid. 468.
[624] _See infra_, pp. 515-528.
[625] 26 U.S.C.A. 3653.
[626] _See_ for example Snyder _v._ Marks, 109 U.S. 189 (1883); Cheatham
_v._ United States, 92 U.S. 85 (1875); Shelton _v._ Platt, 139 U.S. 591
(1891); Pacific Steam Whaling Co. _v._ United States, 187 U.S. 447
(1903); Dodge _v._ Osborn, 240 U.S. 118 (1916).
[627] Dodge _v._ Brady, 240 U.S. 122, 126 (1916).
[628] Hill _v._ Wallace, 259 U.S. 44 (1922); Lipke _v._ Lederer, 259
U.S. 557 (1922); Miller _v._ Standard Nut Margarine Co., 284 U.S. 498,
509 (1932).
[629] Enjoining the Assessment and Collection of Federal Taxes Despite
Statutory Prohibition, 49 Harv. L. Rev. 109 (1935).
[630] Allen _v._ Regents of University System of Georgia, 304 U.S. 439,
445-449 (1938).
[631] 47 Stat. 70 (1932).
[632] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro
Alliance _v._ Sanitary Grocery Co., 303 U.S. 552. 562-563 (1838); Milk
Wagon Drivers' Union _v._ Lake Valley Farm Products Co., 311 U.S. 91,
100-103 (1940).
[633] 330 U.S. 258 (1947). Virginian R. Co. _v._ System Federation No.
40, 300 U.S. 515 (1937), in some ways constitutes an exception to
section 9 of the statute by sustaining a mandatory injunction issued
against an employer on the petition of employees on the ground that the
prohibition of section 9 does not include mandatory injunctions, but
"blanket injunctions which are usually prohibitory in form." For other
acts of Congress limiting the power of the federal courts to issue
injunctions _see infra_, pp. 523-525.
[634] 1 Wheat. 304 (1816).
[635] 18 How. 272 (1856).
[636] 285 U.S. 22 (1932).
[637] Ibid 56-57. _Cf._, however, Shields _v._ Utah, Idaho R. Co., 305
U.S. 185 (1938).
[638] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Kline
_v._ Burke Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_
Hodgson _v._ Bowerbank, 5 Cr. 303, 304 (1809) where Chief Justice
Marshall disposed of the effort of British subjects to docket a case in
a circuit court, saying, "turn to the article of the Constitution of the
United States, for the statute cannot extend the jurisdiction beyond the
limits of the Constitution."
[639] Hayburn's Case, 2 Dall. 409 (1792).
[640] United States _v._ Ferriera, 13 How. 40 (1852); Gordon _v._ United
States, 117 U.S. 697 (1864); Muskrat _v._ United States, 219 U.S. 346
(1911).
[641] In addition to the cases cited in note 3[Transcriber's Note:
Reference is to footnote 640 above.], _see_ Chicago & S. Air Lines _v._
Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).
[642] In addition to the cases cited in notes 2, 3, and 4[Transcriber's
Note: Reference is to footnotes 639, 640, and 641 above.] _see_ Federal
Radio Commission _v._ General Electric Co., 281 U.S. 464, 469 (1930);
Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927);
Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923). _See also_
the dissenting opinion of Justice Rutledge in Yakus _v._ United States,
321 U.S. 414, 468 (1944).
[643] Tutun _v._ United States, 270 U.S. 568 (1926), where the Court
held that the United States is always a possible adverse party to a
naturalization petition.
[644] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893), where the
Court sustained an act of Congress requiring the registration of Chinese
and creating agencies for the expulsion of aliens unlawfully within the
country and for the issuance of certificates to those entitled to
remain. The act provided for special proceedings in such cases and
prescribed the evidence the courts were to receive and the weight to be
attached to it. The procedure was held to contain all the elements of a
case--"a complainant, a defendant, and a judge--_actor_, _reus_, _et
judex_." pp. 728-729.
[645] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899).
Here the Court sustained an act of Congress which directed the Attorney
General to bring a suit on behalf of the United States against the
appellants to determine whether an award made by an international claims
commission was obtained by fraud. The Court of Claims was vested with
full jurisdiction with appeal to the Supreme Court to hear the case,
decide it, to issue all proper decrees therein, and to enforce them by
injunction. The Court regarded the money received by the United States
from Mexico as property of the United States. This together with the
interest of Congress in national honor in dealing with Mexico was
sufficient to enable it to authorize a suit for the decision of a
question "peculiarly judicial in nature." pp. 458-459.
[646] Southern Pacific Co. _v._ Jensen, 244 U.S. 205 (1917).
[647] Taylor _v._ Carryl, 20 How. 583 (1858).
[648] 1 Wheat. 304 (1816).
[649] 6 Wheat. 264 (1821).
[650] 21 How. 506 (1859).
[651] For a full account of this episode _see_ Warren, Supreme Court in
United States History, II, 193-194. _See also_ Baldwin, The American
Judiciary, 163.
[652] 6 Pet. 515, 596 (1832). _See also_ Warren, Supreme Court in United
States History, II, 213; and Baldwin, _op. cit._, 164. It was Worcester
_v._ Georgia which allegedly provoked the probably apocryphal comment
attributed to President Jackson, "'Well, John Marshall has made his
decision, now let him enforce it.'" 2 Warren, Ibid. 219.
[653] Mast, Foos & Co. _v._ Stover Mfg. Co., 177 U.S. 485 (1900).
[654] Covell _v._ Heyman, 111 U.S. 176 (1884).
[655] Riehle _v._ Margolies, 279 U.S. 218 (1929); Harkin _v._ Brundage,
276 U.S. 36 (1928); Wabash R. Co. _v._ Adelbert College, 208 U.S. 38
(1908); Harkrader _v._ Wadley, 172 U.S. 148 (1898); Central National
Bank _v._ Stevens, 169 U.S. 432 (1898); Shields _v._ Coleman, 157 U.S.
168 (1895); Moran _v._ Sturges, 154 U.S. 256 (1894); Krippendorf _v._
Hyde, 110 U.S. 276 (1884); Covell _v._ Heyman, 111 U.S. 176 (1884);
Watson _v._ Jones, 13 Wall. 679 (1872); Buck _v._ Colbath, 3 Wall. 334
(1866); Freeman _v._ Howe, 24 How. 450 (1861); Orton _v._ Smith, 18 How.
263 (1856); Taylor _v._ Carryl, 20 How. 583 (1858); Peck _v._ Jenness, 7
How. 612 (1849). For later cases _see_ Toucey _v._ New York Life Ins.
Co., 314 U.S. 118 (1941). Princess Lida of Thurn & Taxis _v._ Thompson,
305 U.S. 456 (1939); Brillhart _v._ Excess Ins. Co., 316 U.S. 491
(1942); Mandeville _v._ Canterbury, 318 U.S. 47 (1943); Markham _v._
Allen, 326 U.S. 490 (1946); Propper _v._ Clark, 337 U.S. 472 (1949).
[656] McKim _v._ Voorhies, 7 Cr. 279 (1812); Duncan _v._ Darst, 1 How.
301 (1843); United States ex rel. Riggs _v._ Johnson County, 6 Wall. 166
(1868); Moran _v._ Sturges, 154 U.S. 256 (1894); Farmers' Loan & Trust
Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900)
[657] 6 Wall. 166 (1868).
[658] Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939).
This case rests on the principle of comity that where there are two
suits _in rem_ or _quasi in rem_, as they were held to be here, so that
the Court has possession of property which is the subject of litigation
or must have control of it in order to proceed with the cause and grant
the relief sought, the jurisdiction of one court must yield to that of
the other. The principle, applicable to both federal and State courts,
that the Court first assuming jurisdiction over property may maintain
and exercise that jurisdiction to the exclusion of the other, was held
not to be confined to cases where the property has actually been seized
under judicial process, but applies as well to suits brought for
marshalling assets, administering trusts, or liquidating estates and to
suits of a similar nature, where to give effect to its jurisdiction the
Court must control the property.
[659] 1 Stat. 335 (1793); 28 U.S.C.A. Sec. 2283. In the judicial code an
exception is made to proceedings in bankruptcy.
[660] Diggs _v._ Wolcott, 4 Cr. 179 (1807); Orton _v._ Smith, 18 How.
263 (1856); _see_ especially Peck _v._ Jenness, 7 How. 612 (1849) where
the Court held that the prohibition of the act of 1793 extended to
injunction suits brought against the parties to a State court proceeding
as well as to the State court itself.
[661] Freeman _v._ Howe, 24 How. 450 (1861); Julian _v._ Central Trust
Co., 193 U.S. 93 (1904); Riverdale Cotton Mills _v._ Alabama & Georgia
Mfg. Co., 198 U.S. 188 (1905); Looney _v._ Eastern Texas R. Co., 247
U.S. 214 (1918).
[662] Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51
(1900); Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S.
188 (1905); Julian _v._ Central Trust Co., 193 U.S. 93 (1904); Kline
_v._ Burke Construction Co., 260 U.S. 226 (1922). For a discussion of
this rule _see_ Toucey _v._ New York Life Ins. Co., 314 U.S. 118,
134-136 (1941).
[663] Ex parte Young, 209 U.S. 123 (1908), is the leading case.
[664] Arrowsmith _v._ Gleason, 129 U.S. 86 (1889); Marshall _v._ Holmes,
141 U.S. 589 (1891); Simon _v._ Southern R. Co., 236 U.S. 115 (1915).
[665] French _v._ Hay, 22 Wall. 231 (1875); Dietzsch _v._ Huidekoper,
103 U.S. 494 (1881); Madisonville Traction Co. _v._ St. Bernard Mining
Co., 196 U.S. 239 (1905).
[666] The earlier cases are Root _v._ Woolworth, 150 U.S. 401 (1893);
Prout _v._ Starr, 188 U.S. 537 (1903); Juilian _v._ Central Trust Co.,
193 U.S. 93 (1904).
[667] 314 U.S. 118 (1941).
[668] Ibid. 133-141. Justice Reed, in a dissent in which Chief Justice
Stone and Justice Roberts concurred, also reviewed the authorities.
[669] Southern Ry. Co. _v._ Painter, 314 U.S. 155 (1941).
[670] 9 Wheat. 738 (1824).
[671] 209 U.S. 123 (1908). _See also_ Smyth _v._ Ames, 169 U.S. 466
(1898); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894).
[672] Harkrader _v._ Wadley, 172 U.S. 148 (1898); In re Sawyer, 124 U.S.
200 (1888).
[673] Ex parte Young, 209 U.S. 123, 163 (1908).
[674] Ibid. 174. The Young case evoked sharp criticism in Congress and
led to the enactment of Sec. 266 of the Judicial Code, prohibiting the
issuance of injunctions to restrain enforcement of State laws by a
single federal judge, providing for a three-judge court in such cases,
limiting the effect of temporary injunctions, and expediting appeals in
such cases to the Supreme Court. Act of June 18, 1910, 36 Stat. 539; 28
U.S.C.A. Sec. 1253, 2281, 2284. A supplementary act in 1913 (37 Stat.
1013) amended Sec. 266 of the Judicial Code providing for the stay of
federal proceedings to enjoin State legislation if a suit has been
brought in a State court to enforce the legislation until the State court
has determined the issues. Section 266 was amended again in 1925 when the
provisions concerning interlocutory injunctions were extended to include
permanent injunctions. Act of February 13, 1925, 43 Stat. 938.
[675] Prentis _v._ Atlantic Coast Line R. Co., 211 U.S. 210 (1908);
Gilchrist _v._ Interborough Rapid Transit Co., 279 U.S. 159 (1929);
Grubb _v._ Public Utilities Commission, 281 U.S. 470 (1930); Beal _v._
Missouri Pacific R. Co., 312 U.S. 45 (1941).
[676] Phillips _v._ United States, 312 U.S. 246, 249 (1941), citing and
quoting Ex parte Collins, 277 U.S. 565, 577 (1928).
[677] 312 U.S. 246, 251, citing Moore _v._ Fidelity & Deposit Co., 272
U.S. 317 (1926); Smith _v._ Wilson, 273 U.S. 388 (1927); Oklahoma Gas
Co. _v._ Packing Co., 292 U.S. 386 (1934); Ex parte Williams, 277 U.S.
267 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928); Rorick
_v._ Commissioners, 307 U.S. 208 (1939); Ex parte Bransford, 310 U.S.
354 (1940).
[678] Warren, Federal and State Court Interference, 43 Harv. L. Rev.
345, 354 (1930).
[679] 21 How. 506 (1859).
[680] Ibid. 514-516, 523-524, 526.
[681] United States _v._ Tarble (Tarble's Case), 13 Wall. 397, 407-408
(1872).
[682] 1 Stat. 81, Sec. 14.
[683] 4 Stat. 634, Sec. 7 (1833).
[684] 5 Stat. 539 (1942).
[685] 14 Stat. 385 (1867).
[686] Rev. Stat., Sec. 753; 28 U.S.C.A. Sec. 2242.
[687] 100 U.S. 257 (1880).
[688] In re Neagle, 135 U.S. 1 (1890).
[689] In re Loney, 134 U.S. 372 (1890).
[690] Boske _v._ Comingore, 177 U.S. 459 (1900).
[691] Ohio _v._ Thomas, 173 U.S. 276 (1899).
[692] 209 U.S. 205 (1908).
[693] 117 U.S. 241 (1886).
[694] Ibid. 251.
[695] Harkrader _v._ Wadley, 172 U.S. 148 (1898); Whitten _v._
Tomlinson, 160 U.S. 231 (1895).
[696] Frank _v._ Mangum, 237 U.S. 309 (1915); Tinsley _v._ Anderson, 171
U.S. 101 (1898).
[697] Maryland _v._ Soper, 270 U.S. 9, 36, 44 (1926). In addition to the
cases cited above _see_ Ex parte Fonda, 117 U.S. 516 (1886); Duncan _v._
McCall, 139 U.S. 449 (1891); New York _v._ Eno, 155. U.S. 89 (1894);
Baker _v._ Grice, 169 U.S. 284 (1898); Matter of Moran, 203 U.S. 96
(1906); Mooney _v._ Holohan, 294 U.S. 103 (1935); Ex parte Hawk, 321
U.S. 114 (1944). Compare, however, Wade _v._ Mayo, 334 U.S. 672 (1948),
where it was held that failure of the petitioner to appeal to the
Supreme Court from a conviction sustained by the Florida Supreme Court
did not bar relief by _habeas corpus_ because of denial of counsel. In
Ex parte Hawk, 321 U.S. 114 (1944), the rule pertaining to the
exhaustion of remedies was applied so as to include a certiorari
petition in the Supreme Court. In adopting a new United States Code in
1948 (62 Stat. 967) Congress added a new section to existing _habeas
corpus_ provisions which stipulated that no application for a writ of
_habeas corpus_ by a person in custody pursuant to a judgment of a State
court shall be granted until the applicant has exhausted the remedies
available in the courts of the States and that an applicant shall not be
deemed to have exhausted State remedies if he has the right under State
law to raise, by any available procedure, the question presented, 28
U.S.C.A. Sec. 2254. This section codified Ex parte Hawk.
[698] 334 U.S. 672 (1948).
[699] 258 U.S. 254 (1922).
[700] Ibid. 259.
[701] Houston _v._ Moore, 5 Wheat. 1, 27-28 (1820).
[702] Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine and
Spirits Act, 1 Stat. 376 (1794).
[703] 1 Stat. 302 (1793).
[704] 1 Stat. 414 (1795).
[705] 1 Stat. 577.
[706] 1 Stat. 727 (1799).
[707] 2 Stat. 453 (1808); 2 Stat. 473 (1808); 2 Stat. 499 (1808); 2
Stat. 506 (1809); 2 Stat. 528 (1809); 2 Stat. 550 (1809); 2 Stat. 605
(1810); 2 Stat. 707 (1812); 3 Stat. 88 (1813).
[708] 3 Stat. 244. For the trial of federal offenses in State courts
_see_ Charles Warren, Federal Criminal Laws and State Courts, 38 Harv.
L. Rev. 545 (1925).
[709] Charles Warren, Federal Criminal Laws and State Courts, 38 Harv.
L. Rev. 545, 577-581 (1925).
[710] Justice Story dissenting in Houston _v._ Moore, 5 Wheat. 1, 69
(1820); Justice McLean dissenting in United States _v._ Bailey, 9 Pet.
238, 259 (1835).
[711] 16 Pet. 539, 615 (1842).
[712] Robertson _v._ Baldwin, 165 U.S. 275 (1897); Dallemagne _v._
Moisan, 197 U.S. 169 (1905). _See also_ Teal _v._ Felton, 12 How. 284
(1852); Claflin _v._ Houseman, 93 U.S. 130 (1876). This last case
proceeds on the express assumption that the State and National
Governments are part of a single nation and implicity repudiates the
idea of separate sovereignties, as set out in Prigg _v._ Pennsylvania,
16 Pet. 539 (1842).
[713] Mitchell Wendell, Relations between the Federal and State Courts
(New York, 1949), 278.
[714] 35 Stat. 65 (1908).
[715] Hoxie _v._ New York, N.H. & H.R. Co., 82 Conn. 352 (1909).
[716] 223 U.S. 1, 59 (1912).
[717] Brown _v._ Western Ry. Co. of Alabama, 338 U.S. 294 (1949). _See_
Justice Frankfurter's dissent in this case for a summary of rulings to
the contrary.
[718] 330 U.S. 386 (1947).
[719] 56 Stat. 23, 33-34, 205 (c).
[720] 330 U.S. 386, 389.
[721] Ibid. 390. Justice Black refers to Prigg _v._ Pennsylvania, 16
Pet. 539, 615 (1842), and other cases as broadly questioning the power
and duty of State courts to enforce federal criminal law. The cases
primarily relied upon in the opinion are Claflin _v._ Houseman, 93 U.S.
130 (1876); Mondou _v._ New York, N.H. & H.R. Co. (Second Employers'
Liability Cases), 223 U.S. 1 (1912).
[722] _Cf._ Doyle _v._ Continental Ins. Co., 94 U.S. 535 (1877), (which
upheld a similar Wisconsin statute), and Security Mut. L. Ins. Co. _v._
Prewitt, 202 U.S. 246 (1906); with Home Ins. Co. _v._ Morse, 20 Wall.
445 (1874); Barron _v._ Burnside, 121 U.S. 186 (1887); Southern P. Co.
_v._ Denton, 146 U.S. 202 (1892); Gerling _v._ Baltimore & O.R. Co., 151
U.S. 673, 684 (1894); Barrow S.S. Co. _v._ Kane, 170 U.S. 100, 111
(1898); Herndon _v._ Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910);
Harrison _v._ St. Louis & S.F.R. Co., 232 U.S. 318 (1914); Donald _v._
Philadelphia & R. Coal & I. Co., 241 U.S. 329 (1916).
[723] 257 U.S. 529, 532 (1922).
[724] 25 Edward III, Stat. 5, Ch. 2. _See also_ Story's Commentaries On
The Constitution Of The United States, Vol. 2, 529-540, (5th ed.).
[725] 4 Cr. 75 (1807).
[726] Ibid. 75, 126.
[727] Ibid. 126.
[728] Ibid. 127.
[729] United States _v._ Burr, 4 Cr. 470, Appx. (1807).
[730] There have been a number of lower court cases in some of which
convictions were obtained. As a result of the Whiskey Rebellion
convictions of treason were obtained on the basis of the ruling that
forcible resistance to the enforcement of the revenue laws was a
constructive levying of war. United States _v._ Vigol, 28 Fed. Cas. No.
16,621 (1795); United States _v._ Mitchell, 26 Fed. Cas. No. 15,788
(1795). After conviction, the defendants were pardoned. _See also_ for
the same ruling in a different situation the Case of Fries, 9 Fed. Cas.
Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after
conviction. About a half century later participation in forcible
resistance to the Fugitive Slave Law was held not to be a constructive
levying of war. United States _v._ Hanway, 26 Fed. Cas. No. 15,299
(1851). Although the United States Government regarded the activities of
the Confederate States as a levying of war, the President by Amnesty
Proclamation of December 25, 1868, pardoned all those who had
participated on the southern side in the Civil War. In applying the
Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil
proceeding, the Court declared that the foundation of the Confederacy
was treason against the United States. Sprott _v._ United States, 20
Wall. 459 (1875). _See also_ Hanauer _v._ Doane, 12 Wall. 342 (1871);
Thorington _v._ Smith, 8 Wall. 1 (1869); Young _v._ United States, 97
U.S. 39 (1878). These four cases bring in the concept of adhering to the
enemy and giving him aid and comfort, but these are not criminal cases
and deal with attempts to recover property under the Captured and
Abandoned Property Act by persons who claimed that they had given no aid
or comfort to the enemy. These cases are not, therefore, an
interpretation of the Constitution.
[731] 325 U.S. 1 (1945).
[732] 89 Law. Ed. 1443-1444 (Argument of Counsel).
[733] 325 U.S. 35.
[734] Ibid. 34-35. Earlier Justice Jackson had declared that this phase
of treason consists of two elements: "adherence to the enemy; and
rendering him aid and comfort." A citizen, it was said, may take actions
"which do aid and comfort the enemy--* * *--but if there is no adherence
to the enemy in this, if there is no intent to betray, there is no
treason." Ibid. 29. Justice Jackson states erroneously that the
requirement of two witnesses to the same overt act was an original
invention of the Convention of 1787. Actually it comes from the British
Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3).
[735] 330 U.S. 631 (1947).
[736] Ibid. 635-636.
[737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these
propositions. Justice Murphy in a solitary dissent stated: "But the act
of providing shelter was of the type that might naturally arise out of
petitioner's relationship to his son, as the Court recognizes. By its
very nature, therefore, it is a non-treasonous act. That is true even
when the act is viewed in light of all the surrounding circumstances.
All that can be said is that the problem of whether it was motivated by
treasonous or non-treasonous factors is left in doubt. It is therefore
not an overt act of treason, regardless of how unlawful it might
otherwise be." Ibid. 649. The following summary, taken from the Appendix
to the Government's brief in Cramer _v._ United States, 325 U.S. 1
(1945), and incorporated as note 38 in the Court's opinion (pp. 25-26),
contains all the cases in which, prior to Kawakita _v._ United States,
which is dealt with immediately below, construction of the treason
clause has been involved except grand jury charges and cases to which
interpretation of the clause was incidental: Whiskey Rebellion cases:
United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), United States
_v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of
war, based on forcible resistance to execution of a statute; defendants
convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas.
Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on
forcible resistance to execution of a statute; defendant convicted and
later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807);
United States _v._ Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807)
(conspiracy to levy war held not an overt act of levying war). United
States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a
sufficient overt act; acquittal). United States _v._ Hodges, 26 Fed. Cas
No. 15,374 (1815) (obtaining release of prisoners to the enemy is
adhering to the enemy, the act showing the intent; acquittal). United
States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers
on troops enforcing embargo is riot and not levying of war). United
States _v._ Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag
of truce with enemy detachment to help buy provisions is too remote an
act to establish adhering to the enemy). United States _v._ Hanway, 26
Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of
Fugitive Slave Law no levying of war). United States _v._ Greiner, 26
Fed. Cas. No. 15,262 (1861) (participation as members of state militia
company in seizure of a federal fort is a levying of war). United States
_v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing
a privateer is a levying of war; defendants convicted, later pardoned).
Cases of confiscation of property or refusal to enforce obligations
given in connection with sale of provisions to the Confederacy: Hanauer
_v._ Doane, 12 Wall. 342 (1871); Carlisle _v._ United States, 16 Wall.
147 (1873); Sprott _v._ United States, 20 Wall. 459, 371[Transcriber's
Note: "371" is incorrect--case occupies 20 Wall. 459-474 (1874)] (1874);
United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed
motive, involving commercial profit, does not bar finding of giving aid
and comfort to the enemy). United States _v._ Cathcart and United States
_v._ Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case
(unreported: _see_ Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at
888 (1863)) (indictment bad for alleging aiding and abetting rebels,
instead of directly charging levying of war). Case of Jefferson Davis, 7
Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government
achieved status of a recognized belligerent could not be held for
treason; Davis was not tried on the indictment); _see_ 2 Warren, Supreme
Court in United States History (1934 ed.) 485-487; Watson, Trial of
Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections:
United States _v._ Magtibay, 2 Phil. 703 (1903), United States _v._ De
Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions
insufficient overt acts; strict enforcement of two-witness requirement;
convictions reversed); United States _v._ Lagnason, 3 Phil. 472 (1904)
(armed effort to overthrow the government is levying war). United States
_v._ Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held
sufficient overt acts). United States _v._ Robinson, 259 F. 685 (1919)
(dictum, acts harmless on their face are insufficient overt acts).
United States _v._ Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466
(1920) (act indifferent on its face may be sufficient overt act). United
States _v._ Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on
strict application of two-witness requirement and other grounds;
inferentially approves acts harmless on their face as overt acts).
Stephan _v._ United States, 133 F. (2d) 87 (1943) (acts harmless on
their face may be sufficient overt acts; conviction affirmed but
sentence commuted). United States _v._ Cramer, 137 F. (2d) 888 (1943).
[738] 343 U.S. 717.
[739] Ibid. 732. For citations on the subject of dual nationality, _see_
ibid. 723 note 2. Three dissenters asserted that Kawakita's conduct in
Japan clearly showed he was consistently demonstrating his allegiance to
Japan. "As a matter of law, he expatriated himself as well as that can
be done." Ibid. 746.
[740] Ex parte Bollman, 4 Cr. 75 (1807).
[741] United States _v._ Burr, 4 Cr. 470 (1807).
[742] Cramer _v._ United States, 325 U.S. 1 (1945).
[743] Haupt _v._ United States, 330 U.S. 631 (1947).
[744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807).
[745] 12 Stat. 589. This act incidentally did not designate rebellion as
treason.
[746] Miller _v._ United States, 11 Wall. 268, 305 (1871).
[747] Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876).
[748] Lord de la Warre's Case, 11 Coke, 1 a. A number of cases dealt
with the effect of a full pardon by the President of owners of property
confiscated under this act. They held that a full pardon relieved the
owner of forfeiture as far as the Government was concerned, but did not
divide the interest acquired by third persons from the Government during
the lifetime of the offender. Illinois Central R. Co. _v._ Bosworth, 133
U.S. 92, 101 (1890); Knote _v._ United States, 95 U.S. 149 (1877);
Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876); Armstrong's Foundry
_v._ United States, 6 Wall. 766, 769 (1868). There is no direct ruling
on the question of whether only citizens can commit treason. In Carlisle
_v._ United States, 16 Wall. 147, 154-155 (1873), the Court declared
that aliens while domiciled in this country owe a temporary allegiance
to it and may be punished for treason equally with a native-born citizen
in the absence of a treaty stipulation to the contrary. This case
involved the attempt of certain British subjects to recover claims for
property seized under the Captured and Abandoned Property Act, 12 Stat.
820 (1863) which provided for the recovery of property or its value in
suits in the Court of Claims by persons who had not rendered aid and
comfort to the enemy. Earlier in United States _v._ Wiltberger, 5 Wheat.
76, 97 (1820), which involved a conviction for manslaughter under an act
punishing manslaughter and treason on the high seas, Chief Justice
Marshall going beyond the necessities of the case stated that treason
"is a breach of allegiance, and can be committed by him only who owes
allegiance either perpetual or temporary."
ARTICLE IV
STATES' RELATIONS
Section 1. Full faith and credit Page
Sources and effect of this provision 651
Private international law 651
Importance of the constitutional provision 652
Acts of 1790 and 1804 652
Force and effect of same 652
Judgments: Primary concern of the provision 653
Two principal classes of judgments 653
Effect to be given in forum State 653
Jurisdictional prerequisite 657
Judgments in personam 658
Jurisdictional question 659
Service on foreign corporations 660
Service on out-of-State owners of motor vehicles 660
Judgments in rem 661
Thompson _v._ Whitman 661
Divorce decrees 662
Jurisdictional prerequisite: Domicile 662
Haddock _v._ Haddock 662
Emergence of the domicile question 663
Williams I and II 664
Cases involving claims for alimony or property arising in
forum State 666
Recent cases 668
State of the law today: quaere 670
Decrees awarding alimony, custody of children 670
Collateral attack by child 671
Decrees of other types 672
Probate decrees 672
Adoption decrees 673
Garnishment decrees 673
Fraud as a defense to suits on foreign judgments 674
Penal judgments: types entitled to recognition 674
Recognition of rights based upon Constitutions, statutes,
common law 675
The early rule 675
Development of the modern rule 675
Transitory actions: Death statutes 676
Actions upon contract: When governed by law of place of
making 677
Stockholder-corporation relationship 677
Fraternal benefit society--member relationship 678
Insurance company, building and loan association--contractual
relationships 679
Workmen's compensation statutes 681
Development of section to date and possibilities 682
Evaluation of results 682
Scope of powers of Congress under section 683
Full faith and credit in the federal courts 684
Judgments of foreign States 685
Section 2. Interstate comity 686
Clause 1. The comity clause 686
Sources 686
Theories as to its purpose 686
How implemented 688
"Citizens of each State" 688
Corporations 688
"All privileges and immunities of citizens in the several
States" 689
Discrimination in private rights 691
Access to courts 691
Taxation 692
Clause 2. Fugitives from justice 693
Duty to surrender 693
"Fugitive from justice" 694
Procedure of removal 695
Trial of fugitive after removal 695
Clause 3. Fugitives from labor 696
Section 3. New States and government of territory, etc. 697
Clause 1. Admission of States 697
Doctrine of equality of the States 697
Earlier scope of the doctrine 698
Citizenship of inhabitants 699
Judicial proceedings 699
Property rights; United States _v._ Texas 700
Rights conveyed to private persons before admission of
State 700
Clause 2. Property and territory; regulatory powers of
Congress 701
Property of the United States 701
Methods of disposing 701
Public lands 701
Power of the States 702
Power of Congress over territories 703
Section 4. Obligations of United States to the States 704
Republican form of government 704
Protection against domestic violence 704
Decline in importance of this guaranty 704
STATE'S RELATIONS
Article IV
Section 1. Full Faith and Credit shall be given in each State
to the public Acts, Records, and judicial Proceedings of every other
State. And the Congress may by general Laws prescribe the Manner in
which such Acts, Records and Proceedings shall be proved, and the Effect
thereof.
Sources and Effect of This Provision
PRIVATE INTERNATIONAL LAW
The historical background of the above section is furnished by that
branch of private law which is variously termed "Private International
Law," "Conflict of Laws," "Comity." This comprises a body of rules,
based largely on the writings of jurists and judicial decisions, in
accordance with which the courts of one country or "jurisdiction" will
ordinarily, in the absence of a local policy to the contrary, extend
recognition and enforcement to rights claimed by individuals by virtue
of the laws or judicial decisions of another country or "jurisdiction."
Most frequently applied examples of these rules include the following:
the rule that a marriage which is good in the country where performed
(_lex loci_) is good elsewhere; likewise the rule that contracts are to
be interpreted in accordance with the laws of the country where entered
into (_lex loci contractus_) unless the parties clearly intended
otherwise; also the rule that immovables may be disposed of only in
accordance with the law of the country where situated (_lex rei
sitae_);[1] also the converse rule that chattels adhere to the person of
their owner and hence are disposable by him, even when located
elsewhere, in accordance with the law of his domicile (_lex domicilii_);
also the rule that regardless of where the cause arose, the courts of
any country where personal service can be got upon the defendant will
take jurisdiction of certain types of personal actions, hence termed
"transitory," and accord such remedy as the _lex fori_ affords. Still
other rules, of first importance in the present connection, determine
the recognition which the judgments of the courts of one country shall
receive from those of another country.
IMPORTANCE OF THE CONSTITUTIONAL PROVISION
So even had the States of the Union remained in a mutual relationship of
entire independence, still private claims originating in one would often
have been assured recognition and enforcement in the others. The framers
of the Constitution felt, however, that the rules of private
international law should not be left as among the States altogether on a
basis of comity, and hence subject always to the overruling local policy
of the _lex fori_, but ought to be in some measure at least placed on
the higher plane of constitutional obligation. In fulfillment of this
intent the section now under consideration was inserted, and Congress
was empowered to enact supplementary and enforcing legislation.
THE ACTS OF 1790 AND 1804
Congressional legislation under the full faith and credit clause, so far
as it is pertinent to adjudication thereunder, is today embraced in
section 687 of Title 28 of the United States Code, which consolidates
the acts of May 26, 1790 and of March 27, 1804.[2] "The acts of the
legislature of any State or Territory, or of any country subject to the
jurisdiction of the United States, shall be authenticated by having the
seals of such State, Territory, or country affixed thereto. The records
and judicial proceedings of the courts of any State or Territory, or of
any such country, shall be proved or admitted in any other court within
the United States, by the attestation of the clerk, and the seal of the
court annexed, if there be a seal, together with a certificate of the
judge, chief justice, or presiding magistrate, that the said attestation
is in due form. And the said records and judicial proceedings, so
authenticated, shall have such faith and credit given to them in every
court within the United States as they have by law or usage in the
courts of the State from which they are taken."
FORCE AND EFFECT OF SAME
Several points clearly emerge: (1) the word "effect" is construed as
referring to the effect of the records when authenticated, not to the
effect of the authentication; (2) the faith and credit which is required
by the rules of private international law is superseded as to "the
records and judicial proceedings" of each State by a rule of complete
obligation; as to these the local policy of the forum State can validly
have no application. On the other hand, (3) while the act of 1790 lays
down a rule for the authentication of the statutes of the several
States, it says nothing regarding their extraterritorial operation; and
(4) it is similarly silent regarding the common law of the several
States. These silences, however, have been repealed, in part, by
judicial decision. (_See_ pp. 675-682.)
Judgments: The Primary Concern of the Provision
TWO PRINCIPAL CLASSES OF JUDGMENTS
Article IV, section 1, has had its principal operation in relation to
judgments. The cases fall into two groups: First, those in which the
judgment involved was offered as a basis of proceedings for its own
enforcement outside the State where rendered, as for example, when an
action for debt is brought in the courts of State B on a judgment for
money damages rendered in State A; secondly, those in which the judgment
involved was offered, in conformance with the principle of _res
judicata_, in defense in a new or "collateral" proceeding growing out of
the same facts as the original suit, as for example, when a decree of
divorce granted in State A is offered as barring a suit for divorce by
the other party to the marriage in the courts of State B.
EFFECT TO BE GIVEN IN FORUM STATE
The English courts and the different State courts in the United States,
while recognizing "foreign judgments _in personam_" which were reducible
to money terms as affording a basis for actions in debt, originally
accorded them generally only the status of _prima facie_ evidence in
support thereof, so that the merits of the original controversy could
always be opened. When offered in defense, on the other hand, "foreign
judgments _in personam_" were ordinarily treated as conclusive, as
between parties, of the issues they purported to determine, provided
they had been rendered by a court of competent jurisdiction and were not
tainted with fraud. And judgments "_in rem_" rendered under the same
conditions were regarded as conclusive upon everybody on the theory
that, as stated by Chief Justice Marshall, "it is a proceeding _in rem_,
to which all the world are parties."[3]
The pioneer case was Mills _v._ Duryee,[4] decided in 1813. In an action
brought in the circuit court of the District of Columbia--the equivalent
of a State court for this purpose--on a judgment from a New York court,
the defendant endeavored to reopen the whole question of the merits of
the original case by a plea of "_nil debet_." It was answered in the
words of the act of 1790 itself, that such records and proceedings were
entitled in each State to the same faith and credit as in the State of
origin; and that inasmuch as they were records of a court in the State
of origin, and so conclusive of the merits of the case there, they were
equally so in the forum State. The Court adopted the latter view, saying
that it had not been the intention of the Constitution merely to reenact
the common law--that is, the principles of private international law--as
to the reception of foreign judgments, but to amplify and fortify
these.[5] And in Hampton _v._ McConnell[6] some years later, Chief
Justice Marshall went even further, using language which seems to show
that he regarded the judgment of a State court as constitutionally
entitled to be accorded in the courts of sister States not simply the
faith and credit of conclusive evidence, but the validity of a final
judgment.