THE LAW OF STATE COMITY, TERRITORIES AND POSSESSIONS
120. The States comprising the Union possess equal powers and are
subject to the same limitations. This means, in brief, that they have,
respectively, the same jurisdiction. The sovereignty of one State is
equal to the sovereignty of another. Because of this equality, they
are all subject to the same rules of State comity. The aspects of this
mutual equality are numerous and are the subject of provisions of the
Constitution.[304]
In so far as a State possesses jurisdiction it may exercise
authority.[305] This rule is fundamental in American constitutional
law. The Constitution of the United States confers no new power of
jurisdiction by simply regulating the effect of the acknowledged
jurisdiction over persons and things within a State.[306] Thus a State
cannot make its law valid in another State; the validity of a State law
depends upon the will of the State in which the validity is claimed.
From this it follows that “the jurisdiction of any (State) court
exercising authority over a subject (_i. e._, persons or property) may
be inquired into in every other (State) court when the proceedings in
the former are relied upon and brought before the latter by a party
claiming the benefit of such proceedings.”[307]
So, despite the fourth article of the Constitution as to “full faith
and credit,” and “public acts, records, and judicial proceedings” in
the several States, “a judgment rendered in any State may be questioned
in a collateral proceeding in another State.”[308]
121. This principle is disclosed by examination of the States as civil
and political entities, for:
It is equally well settled that the several States of the Union are
to be considered in this respect as foreign to each other, and that
the courts of one State are not presumed to know, and therefore,
not bound to take judicial notice of the laws of another State.[309]
Therefore, whenever it becomes necessary for a court of one State, in
order to give full faith and credit to a judgment rendered in another
State, to ascertain the effect which it has in that State, the law of
that State must be proved, like any other fact.[310]
But national courts are bound to take notice without proof of the laws
of each of the States.[311] The principle is thus laid down by Chief
Justice Marshall: “The laws of a foreign nation, designed only for the
direction of its own affairs, are not to be noticed by the courts of
other countries, unless proved as facts.”[312] For national purposes
embraced by the Constitution, the States and their citizens are one,
united under the same sovereign authority, and governed by the same
laws. In all other respects the States are necessarily foreign to and
independent of each other,—their constitutions and forms of government
being, although republican, altogether different, as are their laws
and institutions.[313] In government, jurisdiction is co-extensive
with sovereignty. Faith, credit, public acts, records, or judicial
proceedings that are valid in a State are, when proved, valid in
every other State, and Congress possesses the power to prescribe by
general laws the manner and the effect of proof. This supreme power is
incidental, as well as necessary, to national sovereignty as realized
in “the more perfect Union.”[314]
122. The citizens of each State are entitled to all privileges and
immunities of citizens in the several States.[315] But a corporation
is not a citizen, being but an artificial person created by the
Legislature and possessing only the powers and attributes which the
Legislature has prescribed.[316] This conclusion is inevitable from
the principle of jurisdiction. No State can create or give powers to
a corporation in another State, or powers that will be valid there. A
corporation created by a Legislature has powers and privileges only
within the jurisdiction of that Legislature; or, as is said: “The
corporation being the mere creation of local law, can have no legal
existence beyond the limits of the sovereignty where created.”[317]
Thus a State may admit or exclude foreign corporations, and the
corporation cannot maintain a claim of citizenship to right to enter
the State.
123. The words “privileges and immunities of citizens” are of
comprehensive meaning as determined by the courts from time to time
as issues (cases or controversies) come before them. The clause in the
Constitution
plainly and unmistakably secures and protects the right of a
citizen of one State to pass into any other State of the Union for
the purpose of enjoying in lawful commerce, trade, or business,
without molestation; to acquire personal property; to take and hold
real estate; to maintain actions in the courts of the State, and to
be exempt from any higher taxes or excises than are imposed by the
State upon its own citizens.[318]
Or, as the principle is further stated: the sole purpose of the
constitutional provision is
to declare to the several States, that whatever those rights
(_i. e._, the rights of citizens of that State),—as you grant or
establish them to your own citizens, or as you limit or qualify,
or impose restrictions on their exercise, the same, neither more
nor less, shall be the measure of the rights of citizens of other
States within your own jurisdiction.[319]
But the citizen from another State must comply with the laws of the
State into which he comes before he can have the protection of its
sovereignty.
The Constitution forbids only such legislation affecting citizens
of the respective States as will substantially or practically put a
citizen of one State in a condition of alienage when he is within,
or when he removes to, another State, or when asserting in another
State the rights that commonly appertain to those who are part of
the political community known as the People of the United States,
by and for whom the government of the Union was ordained and
established.[320]
124. The test here is jurisdiction. No State has jurisdiction that is
denied it by the Constitution of the United States. Each State has
power so far as its jurisdiction, or sovereignty, extends, to declare
what shall be offences against its laws, and citizens of other States
within its jurisdiction are subject to those laws.[321]
Fugitives from justice escaping from a State or Territory to another
are subject to extradition.[322] Upon the Executive of the State or
Territory in which the accused is found rests the responsibility of
determining, in some legal mode, whether he is a fugitive from the
justice of the demanding State. It is within the jurisdiction of the
State or Territory into which the accused has fled to demand competent
proof that he is in fact a fugitive from the demanding State; otherwise
the jurisdiction of the demanding State would extend over the State
or Territory into which the accused has fled. But such proof being
established, the accused “shall be delivered up” as the federal
Constitution prescribes.[323] The principle here is that of State
jurisdiction as limited by the supreme law.
125. But the question of powers, or rights, by extradition, raises the
question of right of asylum. Do
the States of the Union occupy towards each other, in respect
to fugitives from justice, the relation of foreign nations, in
the same sense in which the general government stands towards
independent sovereignties, on that subject; and, in the further
assumption that a fugitive from justice acquires in the State to
which he may flee some State or personal right of protection,
improperly called a right of asylum, which secures to him exemption
from trial and punishment for a crime committed in another State,
unless such crime is made the special object or ground of his
rendition?[324]
To answer this question in the affirmative is to violate the sole
object of the Constitution and acts of Congress concerning the
surrender of fugitives from justice. Foreign nations stand in treaty
relations with the United States and with each other. The States
composing the American Union do not stand, and by the Constitution,
cannot stand in treaty relations with one another or with any other
State or power.[325]
126. A fugitive from a foreign nation seeking refuge in the United
States is not extraditable unless by the terms of the treaty
between that nation and the United States. There is nothing in the
Constitution, or in the Statutes at large of the United States in
reference to interstate rendition of fugitives from justice which can
be regarded as establishing any compact between the States of the Union
(such as a treaty between the United States and another nation does
or may contain), limiting their operation to particular or designated
offenses. And it is questionable whether the States, or any of them,
could constitutionally enter into any agreement or stipulation one
with another for the purpose of defining or limiting the offenses for
which fugitives would or should be surrendered. “The plain answer is
that the laws of the United States do not recognize any right of asylum
on the part of the fugitive from justice in any State to which he has
fled.”[326] The principle here laid down finds further explication: To
apply the rule of international, or foreign extradition to interstate
rendition involves the confusion of two essentially different things,
which rest upon entirely different principles.[327] In the former,
the extradition depends upon treaty contract, or stipulation, which
rests upon good faith, and in respect to which the sovereign upon whom
the demand is made can exercise discretion, as well as investigate
the charge on which the surrender is demanded, there being no rule of
comity under and by nature of which independent nations are required or
expected to withhold from fugitives within their jurisdiction the right
of asylum. In the matter of interstate rendition, however, there is
the binding force and obligation, not of contract, but of the supreme
law of the land, which imposes no conditions, or limitations, upon
the jurisdiction and authority of the State to which the fugitive is
returned.[328]
127. The decision as to whether a State possesses a republican form
of government,—or what government in a State is the lawful government
rests with the political, not the judicial power. “It is the province
of the court to expound the law, not to make it.”[329] Thus the courts
follow the political authority.
In the case of foreign nations, the government acknowledged by
the President is always recognized in the courts of justice; and
this principle has been applied, by the act of Congress, to the
sovereign States of the Union.[330]
If the President errs, it is within the power of Congress to apply the
proper remedy. “The sovereignty in every State resides in the people
of that State, and they may alter and change their form of government
at their own pleasure.”[331] But the United States guarantees to each
a republican form of government.[332] “No particular government is
designated as republican, neither is the exact form to be guaranteed in
any manner especially designated.”[333]
The guarantee necessarily implies a duty on the part of the
States themselves to provide such a government. All the States
had governments when the Constitution was adopted. In all, the
people participated to some extent, through their representatives
elected in the manner specially provided. These governments the
Constitution did not change. They were accepted precisely as they
were, and it is, therefore, to be presumed that they were such as
it was the duty of the States to provide. Thus we have unmistakable
evidence of what was republican in form, within the meaning of that
term, as employed in the Constitution.[334]
Conformably with the character of this federal guarantee of the
republican form, the Supreme Court has decided that:
In the Constitution the term _State_ most frequently expresses
the combined idea ... of people, territory, and government. A
_State_, in the ordinary sense of the Constitution, is a political
community of free citizens, occupying a territory of defined
boundaries, and organized under a government sanctioned and
limited by a written constitution, and established by the consent
of the governed. It is the union of such States, under a common
Constitution, which forms the distinct and greater political unit,
which that Constitution designates as the United States, and makes
of the people and States, which compose it, one people and one
country.... The preservation of the States, and the maintenance of
their government, are as much within the design and care of the
Constitution as the preservation of the Union and the maintenance
of the national government. The Constitution, in all of its
provisions, looks to an indestructible Union of indestructible
States.[335]
The constitutional rules of State comity are therefore rules of
national jurisdiction, and operate as limitations on the jurisdiction
of the several States. The purpose of these rules, as that of every
rule of that jurisdiction is essentially to preserve that jurisdiction,
or sovereignty,—and is sufficiently indicated in the Preamble to the
Constitution.[336]
128. The admission of a new State into the Union is a political act
exclusively within the power of Congress, save that no new State shall
be erected within the jurisdiction, or by the conjunction, of States or
parts of States, without the consent of the Legislatures of the States
concerned, as well as of Congress.[337] This entire act is exclusively
political, but the State once admitted into the Union comes within the
jurisdiction of the United States as the Constitution provides.[338]
The State thus admitted becomes entitled to and possesses all rights
of sovereignty and dominion,—that is, rights of jurisdiction, which
belonged to the original States.[339]
129. The act enabling the inhabitants of a Territory to adopt a
constitution and become a State in the Union usually prescribes that
the proposed constitution and government shall be republican in form,
shall make no distinction in civil or political rights on account
of race or color, shall not be repugnant to the Constitution of the
United States, or to the principles of the Declaration of Independence,
and shall comply with such conditions as Congress at the time may
propose.[340] On June 16, 1906, Congress passed an enabling act under
which, four years later, Arizona sought admission into the Union.
The new constitution submitted to Congress provided for state-wide
recall of State officials. To this provision Congress objected and
made the admission of the Territory conditional upon the amendment of
its proposed constitution by eliminating the objectionable provision.
Arizona complied with the congressional condition and was admitted;
thereupon speedily amended its constitution by re-inserting the
objectionable clauses. Congress has no power to impose conditions,
clauses, or provisions upon the constitution of a State; yet, a
provision of a State constitution in conflict with the Constitution of
the United States is null and void.[341]
130. As the Union is an indestructible Union of indestructible States,
it is a principle of American constitutional law: once a State, always
a State. The inhabitants of a Territory having been erected by Congress
into inhabitants of a State, territorial jurisdiction, created by act
of Congress ceases, and State jurisdiction exists. It is this State
jurisdiction in the Union which is indestructible, which can neither
be extended, nor diminished by Congress. The equality and equivalency
of the States in the Union is a fundamental in American constitutional
law. The jurisdiction of a Territory differs from that of a State as a
governed differs from a self-governing community.
131. Congress has power “to make all needful rules and regulations
respecting the territory and other property belonging to the United
States.”[342] This means the power to govern, a power necessary to
sovereignty, and the “inevitable consequence of the right to acquire
territory; or, as the jurisdiction over a Territory does not belong to
any State in the Union, its government lies by implication (if not by
necessity) with the United States.”[343]
In creating a territorial jurisdiction, Congress exercises, but does
not part with its powers. The power to govern Territories is not
conditioned. Such Territories
are but political subdivisions of the outlying dominion of the
United States. Their relation to the general government is much
the same as that which counties bear to the respective States, and
Congress may legislate for them as a State does for its municipal
organizations. The organic law (“enabling act”) for a Territory
takes the place of a constitution as the fundamental law of the
local government. It is obligatory on, and binds the territorial
authorities; but Congress is supreme, and for the purposes of
this department of its governmental authority, has all the powers
of the people of the United States, except such as have been
expressly, or by implication reserved in the prohibitions of the
Constitution.[344]
132. Congress has full and complete legislative authority over the
people of the Territories, and all departments of the territorial
government. It may do for the Territories what the people under the
Constitution of the United States may do for the States. That the
Supreme Court in 1901 gave a new meaning to the jurisdiction of
Congress over territory belonging to the United States is now a matter
of history. By that decision the power to govern is co-extensive with
the power to acquire territory,—and this means sovereignty. Territorial
acquisitions are wholly subject to the will of Congress. It may govern
them as it sees fit. States, not Territories, are guaranteed by the
United States “a republican form of government.” The word “citizens”
as used in the Constitution does not include inhabitants of such
Territories.[345]
The Constitution of the United States was ordained and established
by the people of the United States for themselves, for their own
government, and not for the government of the individual States.
Each State established a constitution for itself, and, in that
constitution, provided such limitations and restrictions on the
powers of its particular government as its judgment dictated. The
people of the United States framed such a government for the United
States as they supposed best adapted to their situation, and best
calculated to promote their interests. The powers they conferred on
this government were to be exercised by itself; and the limitations
on power, if expressed in general terms, are naturally, and we
think necessarily, applicable to the government created by the
instrument.[346]
But the government thus formed under the Constitution is the government
of “the more perfect Union,” which is an “indestructible Union of
indestructible States.” By constitutional law, indestructibility is not
a quality of any territory under the jurisdiction of the United States.
133. The rights of the inhabitants of such territory are determined
by Congress. This power of Congress seems unlimited, but the Supreme
Court of the United States disclaims “any intention to hold that the
inhabitants of these territories are subject to an unrestrained power
on the part of Congress to deal with them upon the theory that they
have no rights which it is bound to respect.”[347] What limitation
then, if any, is there on Congress, in exercising its powers over such
territory?
The Court replies:
There are certain principles of natural justice inherent in the
Anglo-Saxon character, which need no expression in constitutions
or statutes to give them effect to secure dependencies against
legislation manifestly hostile to their real interests.[348]
But the power of Congress to govern Territories, (“dependencies,”
“outlying possessions”) is, by present constitutional law, exercisable
at the will of Congress.[349] The essential matter is of jurisdiction.
The United States is a sovereignty; for some purposes the several
States comprising the Union are sovereign,[350] but according to
American constitutional law, a Territory, dependency, or outlying
possession belonging to the United States is not sovereign, and
possesses no powers, rights, privileges, or attributes of sovereignty.
The principle may be stated thus: To whatsoever extent Congress
exercises jurisdiction, to that extent it governs; its functions are
legislative and essentially political; to the extent that they are
political they are sovereign.[351]