The American Judiciary

S >> Simeon E. Baldwin, LLD >> The American Judiciary

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Jefferson maintained that there was a third, and one which the
Constitution expressly provided. This was the calling of a
convention of all the States for proposing amendments to it. If,
he said, a State on the one hand by her highest authorities
asserts a certain line of action to be within her powers, and the
United States by their highest authorities deny it, "the ultimate
arbiter is the people of the Union, assembled by their deputies
in convention, at the call of Congress, or of two-thirds of the
States. Let them decide to which they mean to give an authority
claimed by two of their organs."[Footnote: Letter to Mr. Justice
Johnson, Tucker, "Life of Thomas Jefferson," II, 455.] There
seems a plain fallacy in this proposition. The question to be
decided, in case of a conflict of judicial authority, is not
which doctrine ought to be adopted, but which was adopted when
the Constitution was framed. To amend that instrument and make
it something else could not justly be allowed to alter the effect
of acts previously done.

But one serious proposition has ever been made to call a national
constitutional convention for any such purpose. That was by
Kentucky in January, 1861, when civil war was threatened; and it
was not pressed. The very delays which would be inevitable in
assembling such a body were then a reason for the call, for they
would give time for the "sober second thought." The plan,
however, seemed and probably was impracticable. The movement
toward secession had gone too far.[Footnote: Debates and
Proceedings of the National Peace Convention, 45, 61, 67.]

There were many, at the time when the Constitution of the United
States was before the people for ratification, who feared that
the jurisdiction of their courts would be extended by judicial
construction beyond the limits of the grant. New York in her
vote of ratification incorporated a declaration that she
understood it to be impossible that the jurisdiction of any court
of the United States could ever be enlarged "by any fiction." In
the Maryland Convention, this sentiment took shape in a proposed
amendment to the Constitution adopted by a committee appointed
for the purpose, but never reported, "that the Federal courts
shall not be entitled to jurisdiction by fictions or
collusion."[Footnote: Elliot's Debates, 550; Proceedings
Massachusetts Historical Society, XVII, 504-7.] Had such an
amendment been proposed and adopted, it would have cut off a
large share of the most important cases now brought before the
Circuit Courts. In 1787, there were only twenty-seven business
corporations in the United States.[Footnote: Report of the
American Historical Association for 1902, 267; _American
Historical Review_, VIII, 449.] It was not long before they
became countless and the large affairs of the country were in
their hands. Could they sue and be sued in the courts of the
United States? The decision on this point was that, by force of
a pure legal fiction, invented for the purpose, they might be.
They were, indeed, not citizens of any State;[Footnote: Paul
_v._ Virginia, 8 Wallace Reports, 168.] but the persons who
composed them probably were. Therefore, it must be assumed that
they certainly were, and also that they were all citizens of the
same State and that the State from which incorporation was
obtained.[Footnote: Louisville, Cincinnati and Charleston
R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio
and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports,
286.]

Sir Henry Maine maintained that legal fictions were the rude
device of early stages in government, and to add to them
disturbed the symmetry of a legal system and was unworthy the
approval of modern courts.[Footnote: Ancient Law, 26.] But while
they are among the things that it is hard to justify on
principle, it is harder to dispense with them in actual practice,
as the instance given conspicuously illustrates.

Although the United States are the only depositary of the power
of ordering foreign relations, foreign governments are often
aggrieved by acts of the courts of a State which the United
States have but imperfect means of preventing or rectifying.

In 1841, we were brought to the verge of war with Great Britain
by an incident of this nature.

An insurrection broke out in Canada in 1837, and a New York
steamboat was chartered to bring supplies across the Niagara
River to those engaged in it. One night when she was moored on
the New York side of the river a party of loyal Canadians seized
and burned her. During the accompanying affray an American was
killed. A Canadian named McLeod, who was charged with having
fired the fatal shot, was afterwards arrested in New York and
indicted for murder. The British government then informed ours
that it had ordered the burning of the steamer, and thereupon
demanded McLeod's release. Our Secretary of State replied that
the prosecution was in the hands of the State of New York, and
the United States had no control over it. Lord Palmerston made
the affair the subject of a dispatch, in which he stated that
McLeod's execution would produce "a war of retaliation and
vengeance." The President at once requested the Governor of New
York to order a discontinuance of the prosecution. This was
declined, but with a promise to grant a pardon in case of
conviction.[Footnote: Lothrop, "Life of William H. Seward," 35.]
The State courts refused to discharge the prisoner. He was tried
on the original charge, but acquitted.

Congress in 1842 did what it could to prevent the recurrence of
such a conflict of authority by passing an Act giving the Circuit
and District Courts of the United States jurisdiction on
_habeas corpus_ proceedings in favor of foreigners held by
State authority, who might claim a right of release under the
principles of international law.[Footnote: U. S. Revised
Statutes, Sec. 762.]

The Circuit Court has since 1875 been given power to entertain
original jurisdiction of any causes arising under the
Constitution, laws or treaties of the United States, regardless
of the citizenship of the parties, if a value of $2,000 is
involved. In all cases, also, of imprisonment by State
authority, whether under arrest before trial or after a sentence
of conviction, in violation of rights claimed under the
Constitution, laws or treaties of the United States, the prisoner
may now be summarily discharged on a writ of _habeas corpus_
by a court or judge of the United States. Ordinarily, however,
as a matter of comity, he will be left to seek his remedy in the
State courts, and if without success there, on a writ of error
from the Supreme Court of the United States.[Footnote: _In
re_ Neagle, 135 U. S. Reports, 1; _Ex parte_ Royall, 117
U. S. Reports, 241.]

The State courts have no power to release on _habeas corpus_
one who is held under the authority of the United States. If
that authority has been illegally exerted, his remedy is in the
federal courts alone.[Footnote: Ableman _v._ Booth, 21
Howard's Reports, 506.]

The cases in which a State can be sued in an original suit in the
Supreme Court of the United States are defined in the
Constitution and, as limited by the eleventh amendment to it, are
quite few.

Several such actions have been brought. In the earlier ones, the
State declined to recognize the jurisdiction of the court and did
not enter an appearance. The court thereupon decided to proceed
_ex parte_ on hearing the plaintiff;[Footnote: See New
Jersey _v._ New York, 5 Peters' Reports, 283;
U. B. Phillips, "Georgia and State Rights;" Report of American
Historical Association for 1901, II, 83.] and in the later cases
the States have appeared and made defense.

The court, in one of these suits, was asked to issue an
injunction in favor of the Cherokee Indians against the State of
Georgia to prevent her and her Governor, judges and other
officers whatsoever from enforcing certain of her statutes which
were alleged to be unconstitutional. The case went off on
another point, but the majority of the court intimated it to be
their opinion that no such injunction could properly issue
against a sovereign State. Marshall thought it savored "too much
of the exercise of political power to be within the proper
province of the judicial department." Mr. Justice Johnson said
that it was an attempt to compel the President of the United
States, and by indirection, to do what he had declined to do on
the plaintiff's application to him; namely, "to declare war
against a State or to use the public force to repel the force and
resist the laws of a State."[Footnote: Cherokee Nation _v._
Georgia, 5 Peters' Reports, 1, 19, 29.]

It would be no easy thing to enforce a judgment against a State
should it resist. Hence the Supreme Court has been justly
reluctant ever to make any order which would take money out of a
State treasury, unless in cases where the Treasurer was
individually sued, and the money in dispute was not mingled with
other public funds. In 1794, four years before the adoption of
the eleventh amendment, a judgment against the State of Georgia,
authorizing an assessment of general money damages against her,
had been entered in the Supreme Court in favor of one Chisholm,
to whom she owed a debt. Georgia had refused to enter an
appearance in the suit, and in anticipation of this result her
House of Representatives had resolved, in 1793, that if any
Federal marshal should attempt to levy an execution on such a
judgment against the State, it should be a felony, and on
conviction he should be hanged. The Senate had not concurred in
this measure, but it reflected pretty closely the general state
of public feeling in a State largely indebted for what her people
thought it belonged to the United States to pay. The eleventh
amendment was proposed by Congress during the term of court at
which judgment was entered, but not adopted until 1798.
Meanwhile, the court had thought best to defer further
proceedings, and none were ever taken afterwards. The plaintiff
therefore won a barren victory.[Footnote: U. B. Phillips,
"Georgia and State Rights," Report of American Historical
Association for 1901, II, 25.]

The appellate jurisdiction of the Supreme Court of the United
States over States is large, for the State is the party in whose
name all criminal prosecutions in its courts are brought, and in
many of these the defendant sets up some claim under the laws of
the United States which is overruled.

Here again, in case of resistance, it would be difficult to
enforce a judgment of reversal.

Shortly before the action of the Cherokee Nation for an
injunction, the Georgia courts had sentenced Corn Tassel, one of
the tribe, to death for murdering another of them. Tassel had
claimed that by the laws of the United States and their treaty
with his nation he could only be prosecuted before one of his
tribal courts. He obtained a writ of error from the Supreme
Court to review his case on this ground. It was served, but
before it could be heard the day set for his execution had
arrived. By the laws of the United States the allowance of the
writ of error superseded the sentence until the appeal should be
decided. The Governor laid the matter before the legislature,
saying that he did not propose to regard any orders from the
Supreme Court interfering with those of Georgia courts, and
should resist any attempt to enforce them with all the forces at
his command. The legislature approved his position,[Footnote:
U. B. Phillips, "Georgia and State Rights," Report of American
Historical Association for 1901, II, 77.] and Tassel was hanged
on the day originally set.[Footnote: "Memoirs of William Wirt,"
II, 291.] There had been no time to resort again to the Supreme
Court for relief, and as soon as he was dead his writ of error
fell with him, for such a proceeding is legally terminated if the
plaintiff in error dies.

Two years later, Rev. Mr. Worcester, a missionary who had gone to
teach the Christian religion to the Cherokees, was convicted in
the Superior Court of Gwinnet County on an indictment for
residing among them without a license from the State, and sent to
the State prison. He appealed to the Supreme Court of the United
States, which decided that Georgia had no jurisdiction over the
Cherokee reservation, and could not require such licenses. The
judgment against him was therefore reversed, and an order made
"that all proceedings on the said indictment do forever surcease;
and that the said Samuel A. Worcester be and hereby is henceforth
dismissed therefrom, and that he go thereof quit without day, and
that a special mandate do go from this court to the said Superior
Court to carry the judgment into execution."[Footnote: Worcester
_v._ Georgia, 6 Peters' Reports, 515, 596.] The Superior
Court of Gwinnet County paid no respect to this mandate; the
Governor of Georgia characterized it as an attempt at usurpation
which he should meet in a spirit of determined resistance; and
Worcester remained in prison until, on expressing his willingness
to abandon any further efforts for his discharge by authority of
the judgment on his writ of error, the Governor gave him a pardon
on condition of his leaving the State.

A year later, James Grady, who lay under a sentence of death
under proceedings similar to those in Tassel's case, like him
obtained a writ of error from the Supreme Court of the United
States and had it served on the Georgia court, only to find it
disregarded. His execution, in spite of the _"supersedeas"_
which goes by law with every such suit, was the last of this
series of judicial outrages.[Footnote: "Georgia and State
Rights," 83.]

It was unfortunate for the sufferers in these proceedings that
they took place at a time when the cry of "State Rights" was
particularly loud and general in the South. South Carolina had
been quieted with difficulty by Jackson's action in regard to her
nullification ordinance, and he did not wish to go farther than
he thought it necessary in insisting on the supremacy of the
United States.

Since the Civil War, such defiance by a State of the authority of
the Supreme Court of the United States has been unknown and would
be almost inconceivable. The absolute right of the Supreme Court
of the United States to pronounce finally, so far as the States
are concerned, upon every question brought before it as to the
meaning and effect of the national Constitution, has come to be
universally acknowledged.

The courts of a State have the same right, except that it is not
final. This the original Judiciary Act of 1789 (Sec. 25) fully
recognized. Something like it may belong to a Convention of the
whole people of a State, called to act upon its fundamental
concerns; for that would represent the sovereignty of the State
as a whole in the fullest manner. It was from such a convention
that the nullifying ordinance of 1832 proceeded, but the vice of
its action was, not so much that it pronounced the protective
tariff Acts unconstitutional and void, but that it assumed to
deny any right of appeal in litigation growing out of these Acts
and the Ordinance of Nullification, from the courts of South
Carolina to the courts of the United States. This liberty of
appeal in the regular course of judicial procedure is the one
thing which keeps the United States in existence.

The law governing the ordinary transactions of life is that of
the State where they may have their seat. This was affirmed in
the original Judiciary Act,[Footnote: U. S. Revised Statutes, Sec.
721. As "equity follows the law," State legislation creating new
equitable rights or varying those formerly established also
affects causes in equity in the Federal courts. Brine _v._
Insurance Co., 96 U. S. Reports, 627; but see James _v._
Gray, 131 Federal Reporter, 401.] as a general rule for the
courts of the United States in trials at common law. By another
Act of Congress,[Footnote: _Ibid_., Sec. 914.] the practice,
pleadings, and form and mode of proceeding in civil causes, other
than those of equity and admiralty jurisdiction, in the Circuit
and District Courts are to conform as nearly as may be to that
followed in the State within which these courts may be held.

The State laws which are thus made a rule for the United States
courts are the law of the State as it is understood and applied
in its own courts. Hence the construction of a State statute, or
the doctrines of the common law in a particular State, if
definitely settled by the courts of that State, must be followed
in subsequent litigation in the federal courts. Where, however,
a State court has taken a certain position as to what the law is,
and afterwards changes its position, the federal courts are not
compelled to change with it, if this would do injustice to one
who has meanwhile acted on the faith of the original
ruling.[Footnote: Burgess _v._ Seligman, 107 U. S. Reports,
20, and see argument of Daniel Webster in Groves _v._
Slaughter, 15 Peters' Reports, 449, 489.]

Nor are the federal courts, in large questions of a commercial
nature, bound always to accept the opinion of a State court as to
what the common law of the State may be. The manner in which
this doctrine has been evolved is an interesting example of the
manner in which law develops by litigation, and new points are
struck out in a single case as the joint product of lawyer and
judge.[Footnote: See Chaps, XVII, XVIII.]

A bill of exchange drawn in Maine on one Tyson, a merchant in New
York, and bearing his acceptance, was indorsed over to one Swift,
who took it in good faith before it fell due, in payment of a
pre-existing debt. He sued Tyson upon it in the Circuit Court of
the United States in Maine. If his rights were as good as if he
had paid value for it at the time he received it, he was entitled
to recover. If not, his action failed; for the acceptance had
been obtained by fraud. It was made in New York. The judicial
decisions of that State, contrary to the prevailing opinion as to
what was the general common law rule, seemed to favor the view
that a pre-existing debt did not stand on as good a footing as a
present payment, in support of a claim upon negotiable paper.
Samuel Fessenden of Portland, a lawyer of great ability, was his
counsel. The cause was submitted on briefs, without oral
argument. Mr. Fessenden, admitting that the law of the place
where acceptance was made must govern the obligations of Tyson,
insisted that the New York decisions were wrong in principle and
ought not to be regarded.

"If," said his brief, "there is any question of law, not local,
but widely general in its nature and effects, it is the present
question. It is one in which foreigners, the citizens of
different States in their contests with each other, nay, every
nation of the civilized commercial world, are deeply
interested. By all without the United States this Court is
looked to as the judiciary of the whole nation, known as the
United States, whose commerce and transactions are as widely
diffused as is the use of bills of exchange.... How can this
Court preserve its control over the reason and affections of
the people of the United States; that control in which its
usefulness consists, and which its own untrammeled learning and
judgment would enable it naturally to maintain; if its records
show that it has decided-as it may be compelled to decide if
the construction referred to, advocated on the part of the
defendant, is established-the same identical question, arising
on a bill of exchange, first one way, and then the other, with
vacillating inconsistency?"

Mr. Dana, for Tyson, maintained the opposite view with equal
ability. "In coming together," he said, "from the respective
States, the framers of the Constitution, and our representatives
in Congress after them, must be regarded as having had in view
the language, laws, and institutions of the States which they
represented."

Mr. Justice Story gave the opinion of the court. Referring to
the provision in the Judiciary Act (now U. S. Revised Statutes,
Sec. 721) above mentioned, on the construction of which the case
must turn, "It never," he remarked, "has been supposed by us that
the section did apply, or was designed to apply, to questions of
a more general nature, not at all dependent upon local statutes
or local usages of a fixed and permanent operation, as, for
example, to the construction of ordinary contracts or other
written instruments, and especially to questions of general
commercial law, where the State tribunals are called upon to
perform the like functions as ourselves, that is, to ascertain
upon general reasoning and legal analogies, what is the true
exposition of the contract or instrument, or what is the just
rule furnished by the principles of commercial law to govern the
case.... The law respecting negotiable instruments may be truly
declared in the language of Cicero, adopted by Lord Mansfield in
Luke _v._ Lyde, 2 Burr. B., 883, 887, to be in a 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 omnes gentes, et omni tempore,
una eademque lex obtinebit."_[Footnote: Swift _v._ Tyson,
16 Peters' Reports, 1, 8, 9, 10, 11, 13, 18.]

This opinion had been submitted to the court for the first time
during the evening before it was delivered.[Footnote:
_Ibid_., 23.] It could not have received any very close
scrutiny. It relied on no authority except that of Cicero, for
Lord Mansfield, in the case of Luke _v._ Lyde, was speaking
of the law of the sea, which in the nature of things no one
nation can prescribe or change. It was not easy to reconcile it
with precedents cited by Mr. Dana, in one of which Mr. Justice
Chase of the same court had held on the circuit as early as 1798
that the United States had no common law of their own, and that
the "common law, therefore, of one State is not the common law of
another; but the common law of England is the law of each State,
so far as each State has adopted it; and it results from that
position, connected with the judicial act, that the common law
will always apply to suits between citizen and citizen, whether
they are instituted in a Federal, or State, Court."[Footnote:
United States _v._ Worrall, 2 Dallas' Reports, 384, 394.]
So the Supreme Court itself had said, in 1834, in a famous
judgment, concurred in by Mr. Justice Story himself, that "it is
clear, there can be no common law of the United States. The
federal government is composed of twenty-four sovereign and
independent States; each of which may have its local usages,
customs and common law. There is no principle which pervades the
union and has the authority of law that is not embodied in the
constitution or laws of the union. The common law could be made
a part of our federal system only by legislative adoption. When,
therefore, a common law right is asserted, we must look to the
State in which the controversy originated."[Footnote: Wheaton
_v._ Peters, 8 Peters' Reports, 658.]

The State courts have looked upon the doctrine announced in Swift
_v._ Tyson with an unfriendly eye. In some, its authority
is denied.[Footnote: See Porepaugh _v._ Delaware, Lackawanna
and Western R. R. Co., 128 Pennsylvania State Reports, 217; 18
Atlantic Reporter, 503.] In none will it affect the disposition
of a cause turning upon its own law, and not pending in the
federal courts. It has, however, been repeatedly reaffirmed by
the Supreme Court of the United States, though the later
decisions appear to limit its effect to questions growing out of
commercial transactions not wholly confined to a single
State.[Footnote: Western Union Telegraph Co. _v._ Call
Publishing Co., 181 United States Reports, 92. See Article on
the Common Law of the Federal Courts, by Edward C. Eliot,
_American Law Review_, XXXVI, 498.]

The right of recovery on a cause of action of a commercial nature
will therefore often depend on the court which the plaintiff
selects. If he sues in a State court, the common law of the
State, as the judicial authorities of that State declare it to
be, will be applied; if he sues in a court of the United States,
the common law of the State as the judicial authorities of the
United States declare it to be. Each tribunal will profess to
decide by the same rule--the law of the State; but the federal
court will really apply the common law of England, as it is
generally understood to be, instead of the common law of that
State as it is locally understood to be.

The relations between the federal and State courts which have
been described obviously present many occasions for conflicts of
authority. That such conflicts are so infrequent is mainly due
to a spirit of comity, which the judges of each sovereignty
should and generally do show to those of the other. The federal
courts are also prohibited by Act of Congress from issuing any
injunction to stay proceedings in a State court, except in
certain cases arising under the bankruptcy laws. Independent of
any statute, however, the general principles of jurisprudence
forbid any direct attempt either by a court of the State to
control the action of a court of the United States or by a court
of the United States to control the action of a State court,
except to the limited extent for which provision is made in the
national Constitution.[Footnote: Diggs _v._ Wolcott, 4
Cranch's Reports, 179; M'Kim _v._ Voorhies, 7 Cranch's
Reports, 279.] Each court, this exception aside, exercises
powers belonging to an independent sovereign, and therefore
subject to control by that sovereign only.

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