(1920) The American Supreme Court as an International Tribunal

8/9/2019 (1920) The American Supreme Court as an International Tribunal

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UC-NRLF

$B 22 321 THE

American Supreme CourtAS AN

International TribunalBY

HERBERT A. SMITH, M.A.Of the Inner Temple, Barrister-at-Law ; Professor of Jurisprudenceand Common Law, McGill University, Montreal ; formerly

Fellow of Magdalen C ll.-ge, Oxford


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THEAmerican Supreme Court

AS ANInternational Tribunal

BYHERBERT A./SMITH, M.A.

Of the Inner Temple, Barrister-at-Caw ; Professor of Jurisprudenceand Common Law, McGill University, Montreal ; formerly

Fellow of Magdalen College, Oxford

NEW YORKOXFORD UNIVERSITY PRESSAMERICAN BRANCH : 35 WEST 32ND STREETLONDON. TORONTO, MELBOURNE, AND BOMBAY


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COPYRIGHT 1920BY THE

OXFORD UNIVERSITY PRESSAMERICAN BRANCH

PRINTED IN U. S. A.


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PREFACEWHATEVER form the League of Nations may ulti-

mately take it must contain some provisions for the- set-tlement by judicial means of justiciable disputes betweenmembers of the League. For about a century and aquarter the Supreme Court of the United States hasbeen entrusted under the Federal Constitution with thedecision of such controversies between the States of theAmerican Union. Since it has worked under peculiarconditions and within a very restricted area the studentwill see that inferences drawn from its history can onlybe applied with considerable qualification to any Courtof the Nations that may hereafter be set up. Neverthe-less this is the only permanent court, as distinguishedfrom occasional arbitration commissions, which hashitherto attempted in any degree to discharge the func-tions of a true international tribunal, and it is thereforeclearly desirable that the nature of its work should be aswidely as possible studied at the present time.

This essay aims at giving in a small compass a rea-soned summary of all the inter-State cases hitherto de-cided in the Supreme Court. As I am not writing pri-marily for lawyers or other technical students I haveso far as possible avoided all technicalities. Questionsof procedure, for example, are almost entirely ignored,and I have also passed lightly over many matters which,although important in themselves, are of interest mainlyto students of American constitutional law. The Su-preme Court has been keenly conscious of its functionsas an international tribunal, and it is this aspect of itswork which I wish to emphasize. I have no desire to

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iv PREFACEwrite propaganda either for or against the League ofNations, and it is- possible that different minds may drawdifferent conclusions from a study of the history of theSupreme Court. To my mind the experiment appearswithin its own limits as a great success, but I have nowish to slur over the difficulties which the Court hasencountered or to minimize the differences between theconditions of a North American Union and those of aLeague embracing most of the civilized nations of theworld.

In a work of this kind it would be merely pedanticto cite numerous authorities. For the convenience oflawyers I have given references to the decisions in theoriginal Supreme Court reports, which are to be foundin most of the principal law libraries. Dr. James BrownScott has collected all the inter-State cases into twovolumes published in New York by the Oxford Univer-sity Press under the title of Judicial Settlement of Con-troversies between States of the American Union, andin a third volume has made a valuable analysis of thesecases in chronological order. This exhaustive work hasbeen the principal source-book for my essay, as it mustbe for any other student who wishes to study the historyof the Supreme Court as an international tribunal.To Dr. Scott personally I am indebted for valuable

advice and encouragement in the preparation of thislittle book, the substance of which was delivered in theform of lectures at Oxford in the summer term of 1919.A word of the warmest gratitude is also due to manygenerous hosts in Washington, New York, and theSouthern States, whose kindness to a wandering Britishofficer in 1918 did more than any books could have doneto quicken my interest in American institutions.

H. A. S.


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CONTENTSCHAPTER PAGEPREFACE iii

TABLE OF CASES viiI. ORIGIN OF THE SUPREME COURT ... i

II. EXTENT OF THE JURISDICTION ... 14III. BOUNDARY CASES 34IV. THE RECOVERY OF STATE DEBTS . . 60V. CASES OF INJURY BY STATE ACTION . . 73VI. THE ENFORCEMENT OF JUDGMENTS . . 89

VII. GENERAL CONCLUSIONS .... 106INDEX 121


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TABLE OF CASES PAGESAbleman v. Booth (1858); 21 Howard, 506.... 97Alabama v. Georgia (1859); 23 Howard, 505.. 37-8,55Arkansas v. Tennessee (1918) ; 246 U. S., 158.. 55-6Cherokee Nation v. Georgia (1831) ; 5 Peters, I 15,73-5,87,89Chisholm v. Georgia (1793) ; 2 Dallas, 419 9, 60, 94Collector v. Day (1870) ; 11 Wallace, 113 66Cuba v. Norf/t Carolina (1917) ; 242 U. S., 665. 75Dred Scott Case; see Scott v. Sandford.Florida v. Georgia ( 1850) ; 11 Howard, 293 18Florida v. Georgia ( 1854) ; 17 Howard, 478 3, 18, 32, 37Hepburn v. Griswold (1870) ; 8 Wallace, 603. .. nIndiana v. Kentucky (1890) ; 136 U. S., 479 4O-IIndiana v. United States (1893) ; 148 U. b., 148 64-5Iowa v. Illinois ( 1893) ; 147 U. S., 1 42-3Kansas v. Colorado (1902); 185 U. S., 125 3,24-5,81,84Kansas v. Colorado (1907) ; 206 U. S., 46 33, 81-8,97, inKansas v. United States (1907) ; 204 U. S., 331 31Kentucky v. Dennison, Governor of Ohio

(1860); 24 Howard, 66 18-19,95-7Legal Tender Cases (1871) ; 12 Wallace, 457- "3Louisiana v. Mississippi (1906) ; 202 U. S., I

and 50 26, 47-52Louisiana v. Texas (1900) ; 176 U. S., 1 22-4, 77-9, 87, 97McCulloch v. Maryland (1819) ; 4 Wheaton, 316 66,90Maryland v. West Virginia (1910) ; 217 U. S., Iand 577 53-5Minnesota v. Hitchcock (1902) ; 185 U. S., 387.. 31Missouri v. Illinois (1901) ; 180 U. S., 208 25-6,79Missouri v. Illinois (1906) ; 200 U. S., 496 79-81,88,97Missouri v. Illinois (1906) ; 202 U. S., 598 81Missouri v. Iowa (1849) ', 7 Howard, 660 17,36-7Missouri v. Iowa (1897) ; 165 U. S., 118 36Missouri v. Kansas (1908) ; 213 U. S., 78.. 53Missouri v. Kentucky (1870) ; u Wall., 395 39-4OMissouri v. Nebraska (1904) ; 196 U. S., 23 47Nebraska v. Iowa (1892) ; 143 U. S., 359 41-2Nebraska v. Iowa (1892); 145 U. S., 519 42New Hampshire v. Louisiana (1883) ', IQ8 U. S.,76 21New Jersey v. New York (1830) ; 3 Peters, 461 14New J-ersey v. New York (1831) ; 5 Peters, 284 15New York v. Connecticut (1799) ; 4 Dallas, i.. 14New York v. Louisiana (1883) ; 108 U. S., 76.. 21North Carolina v. Tennessee (1914); 235U. S., i 55Paquete Habana," The (1900) ; 175 U. S., 677 84Pennsylvania v. Wheeling & Belmont BridgeCo. ( 1856) ; 18 Howard, 421 77

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Vlll TABLE OF CASESPAGESRhode Island v. Massachusetts (1833) ; 7 Peters,651 16Rhode Island v. Massachusetts (1838) ; 12

Peters, 657 I7> 95Rhode Island v. Massachusetts (1846) ; 4 How-ard, 591 35-6Scott v. Sandford (1857); 19 Howard, 393. . 11, 91-3, 112-3, 117South Carolina v. Georgia (1876) ; 93 U. S., 4. . 75-7,88South Carolina v. United States (1905) ; 199U. S., 437 65-7South Dakota v. North Carolina (1904); 192U. S., 286 21-2,63,98-9United States v. Louisiana (1887) ; 123 U. S., 32 32,64United States v. Louisiana (1888); 127 U. S.,182 64United States v. Michigan (1903) ; 190 U. S., 379 62 3 98United States v. New York (1896) ; 160 U. S.,.598 65United States v. North Carolina ( 1890) ; 136U. S., 21 1 29, 61-2United States v. Texas (1892) ; 143 U. S., 621.. 29-30United States v. Texas (1896) ; 162 U. S., I. ... 44-7United States v. Wong Kim Ark (1898); 169U.S.,654 58

Virginia v. Tennessee (1893) ; 148 U. S., 503... 43Virginia v. Tennessee (1903) ; 190 U. S., 64 44Virginia v. West Virginia (1870) ; n Wallace,

39 19-21,35,38-9Virginia v. West Virginia (1907) ; 206 U. S., 290 27-8,67-72Virginia v. West Virginia (1908) ; 209 U. S., 514 68Virginia v. West Virginia (1911) ; 220 U. S., I 68-9,107Virginia v. West Virginia (1911) ; 222 U. S., 17 69Virginia v. West Virginia (1913) ; 231 U. S., 89 69Virginia v. West Virginia (1914) ; 234 U. S., 117 69, 108Virginia v. West Virginia (1915) ; 238 U. S., 202 70-72,99Virginia v. West Virginia (1916) ; 241 U. S., 531 100Virginia v. West Virginia (1918) ; 246 U. S., 565 100-4Washington v. Oregon (1908) ; 211 U. S., 127.. 52-3Washington v. Oregon (1909) ; 214 U. S., 205.. 53Worcester v. Georgia (1832) ; 6 Peters, 515. ... 74,89


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CHAPTER IORIGIN OF THE SUPREME COURT

IN order to appreciate the part which the Supreme Courthas played in the history of the United States it is neces-sary to understand clearly the political theory upon whichthe whole Constitution rests. This theory, shortly stated,is that the United States is a voluntary union of sover-eign and independent States. Thus the " Articles of Con-federation and Perpetual Union," ratified in 1781, de-clared that " each State retains its sovereignty, freedom,and independence, and every power, jurisdiction, andright which is not by this Confederation expressly dele-gated to the United States in Congress assembled." Soagain in the existing Constitution it is declared by theTenth Amendment, which was ratified in 1791, that " thepowers not delegated to the United States by the Consti-tution, nor prohibited by it to the States, are reserved tothe States respectively or to the people." In other wordsthe Federal Government in all its organs is theoreticallyonly an agent enjoying such limited powers as have beendelegated to it by the joint authority of the sovereign andindependent States.Looked at historically this doctrine rests upon a con-siderable straining of the facts. The several States havenever actually been independent in the sense in which, forexample, France and Spain are independent powers. Be-fore the Revolution they were united by their commondependence upon the British Crown. During the war,which lasted from 1775 to 1783, they were no less unitedby the necessity of common military action. While the

iP. 4345 A


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AMERICAN SUPREME COURTi

*jvvklr *was still in progress they effected a formal unionby the " Articles of Confederation," the ratifications ofwhich were completed in 1781. In 1789 this union,which had proved too loose to be workable in practice,was superseded by the " Constitution of the UnitedStates," under which the country has been governed tothis day. In the course of time the number of the Stateshas increased from thirteen to forty-eight. The greatmajority of these new States have been created by Fed-eral legislation out of Federal territory, and have neverenjoyed even a transient independence. A few have beenacquired by cession from foreign powers, and subse-quently erected into States. Texas alone has known afleeting independence in the brief interval between herseparation from Mexico in 1836 and her incorporationinto the United States in 1845.

But the political importance of the doctrine is in noway affected by the weakness of its historical foundation.It was deliberately adopted as and still remains the gov-erning principle of the whole Union. To British readersit has a special interest, because it was consciously takenin 1900 as the foundation for the Constitution of theAustralian Commonwealth, the framers of which pre-ferred to follow the Federal principle of the UnitedStates rather than the unitary theory which governs theConstitution of the Dominion of Canada. 1 For our pres-ent purpose the importance of the doctrine lies in the factthat it has compelled the Supreme Court in deciding con-troversies between the States to assume the role of aninternational tribunal. An English Court, deciding acase between two county councils, will treat the partiesexactly as if they were two ordinary corporations. Butthe American Supreme Court is compelled to adopt a

1 South Africa, on the other hand, has adopted the unitaryprinciple.


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ORIGIN OF THE SUPREME COURT 3different attitude when the parties before its -bar a reStates of the Union. Speaking of the application of theEnglish procedure to such cases Chief Justice Taney saidin the case of Florida v. Georgia in 1854: 1

:c These precedents could not govern a case wherea sovereign State was a party defendant. Nor couldthe proceedings of the English Chancery Court, in acontroversy about boundaries, between proprietarygovernments in this country, where the territory wassubject to the authority of the English Government,and the person of the proprietary subject to theauthority of its courts, be adopted as a guide wheresovereign States were litigating a question of boun-dary in a court of the United States. They fur-nished analogies, but nothing more."

So again Chief Justice Fuller, delivering judgment in thecase of Kansas v. Colorado in 1902? said:

" Sitting, as it were, as an international, as well asa domestic tribunal, we apply Federal law, State law,and international law, as the exigencies of the par-ticular case may demand."

Bearing this fundamental principle in mind, let us con-sider the steps which led up to the establishment of theSupreme Court.The Declaration of Independence was published atPhiladelphia on the 4th July, 1776. In the next yearthe delegates of thirteen States assembled in the same citydrew up the " Articles of Confederation and PerpetualUnion," which were an attempt to form a Federal unionwith the minimum surrender of State rights. The firstarticle of this document gave the new commonwealth thename which it has ever since retained. The second laiddown the fundamental principle of State sovereignty in

1 17 Howard, 492. 2 185 U. S., 146.


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4 , AMERICAN SUPREME COURTthe wos^is which have been already quoted. In the thirdarticle the object of the Confederation is described in thefollowing words :

" The said States hereby severally enter into a firmleague of friendship with each other, for their com-mon defence, the security of their liberties, and theirmutual and general welfare, binding themselves toassist each other against all force offered to, orattacks made upon them, or any of them, on accountof religion, sovereignty, trade, or any other pretencewhatever."

This is not the place to describe in detail the adminis-trative and legislative arrangements of the Confederation.Suffice it to say that they were designed to give only abare minimum of power to the central government, andto reserve as much as possible to the individual States.A small Congress was established, in which each Statewas to have one vote. Diplomacy was forbidden to theStates, but their right was recognised to make war in-dividually in cases of emergency. Military forces wereto be raised and equipped by the States, though placedunder the control of Congress for the actual operationsof war. States were allowed to regulate their owncustoms duties, so long as these did not violate anytreaty obligations undertaken by Congress. In short, theConfederation was, as Lord Bryce says, " rather a leaguethan a national government."The provisions for the settlement of inter-State dis-putes are contained in the ninth Article, and begin asfollows :

" The United States, in Congress assembled, shallalso be the last resort of appeal, in all disputes anddifferences now subsisting, or that hereafter mayarise between two or more States concerning boun-dary, jurisdiction, or any other cause whatever."


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ORIGIN OF THE SUPREME COURT 5The .Article, which is too long to be quoted in full, goeson to provide that, when any dispute comes before Con-gress, it shall be referred to a body of commissionersselected in a certain way from a large panel ; " and thejudgment and sentence of the Court, to be appointed inthe manner before prescribed, shall be final and con-clusive."Upon this it will be observed that the Confederation

makes no provision for a Federal judiciary or for anypermanent tribunal superior to the State Courts. Dis-putes between States are to be referred to a body of com-missioners appointed separately to deal with each case asit arises. The procedure suggests an arbitration ratherthan a lawsuit, and is in some respects a foreshadowingof the rules adopted by the Hague Conference in 1907for the settlement of international disputes. Nothing is \\said about enforcing obedience to the decision.The scheme of union thus devised was from everypoint of view a complete failure. Its weakness becameapparent as soon as the bond of a common military neces-sity was dissolved in 1783. The central government wasfar too feeble to control the conflicting interests of theseveral States, and became an object of general contempt.Treaties with foreign powers were not observed, whileirresponsible legislation and violent disorders soon provedthe incompetence of the States for separate self-govern-ment. Washington described the situation as no betterthan anarchy, and the new commonwealth naturallyfailed to command any respect in the eyes of othernations.

It was evident that such a state of things could notlast. Either disruption or closer union was bound tocome, and in 1786 delegates from five States met atAnnapolis in Maryland to discuss possible reforms. Inthe next year, acting on their recommendation, a full


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6 AMERICAN SUPREME COURTConvention, from which Rhode Island was the only ab-sentee, met at Philadelphia and gave America the Consti-tution under which she has lived ever since.The debates in the Convention ranged over a wide

field, and disclosed the division, which was to last solong in American politics, between the advocates of astrong central government and the champions of Staterights. But a spirit of reasonableness was in the air,men of all parties being deeply impressed with the gravedanger of the existing situation. In particular theyrealised that the Union, as it stood then, would be almosthelpless against external aggression.For the present we are concerned only with the ques-tion of judicature. The first proposals for a national

i judiciary were contained in the " Virginian Plan " pro-pounded on the 2Qth May, 1787, by Edmund Randolphof Virginia, afterwards Attorney-General of the UnitedStates. After consideration by a committee a draftscheme was reported to the Convention, in which it wasrecommended " that the jurisdiction of the nationaljudiciary shall extend to all cases respecting the collectionof the national revenue, impeachments of any nationalofficers, and questions which involve the national peaceand harmony."

In August a draft Constitution was drawn up, in whichan endeavour was made to create two national tribunalsof final authority. Disputes between the States involvingquestions of jurisdiction or territory were to be referredto the Senate, together with private controversies con-cerning land claimed under conflicting grants from dif-ferent States. All other cases were to be decided by theSupreme Court and the inferior Federal tribunals.

This unsatisfactory dualism did not survive debate, andultimately the jurisdiction of the Senate was taken away,except its power to hear impeachments. On the I7th


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ORIGIN OF THE SUPREME COURT 7September, 1787, the Constitution in its present form wassigned by thirty-nine out of the sixty-five delegates whohad been appointed to the Convention. By June of thenext year it had received ratifications from nine States,which was the minimum number required under its ownterms (Art. VII) to bring it into force. Rhode Island,the smallest and most intractable of the States, held outlongest and ultimately ratified on the 2Qth May, 1790.The Constitution thereupon became binding on the wholecountry, and each of the younger States has since becomea consenting party to the Constitution by the fact of itsadmission to the Union.The third Article creates the national judiciary in the

following terms :

"Section i. The judicial power of the UnitedStates shall be vested in one Supreme Court, and insuch inferior courts as the Congress may from timeto time ordain and establish. The judges, both ofthe Supreme and inferior courts, shall hold theiroffices during good behaviour, and shall, at statedtimes, receive for their services a compensation,which shall not be diminished during their continu-ance in office.

"Section 2. The judicial power shall extend toall cases, in law and equity, arising under this Con-stitution, the laws of the United States, and treatiesmade, or which shall be made, under their authority ;to all cases affecting ambassadors, other public min-isters, and consuls; to all cases of admiralty andmaritime jurisdiction; to controversies to which theUnited States shall be a party; to controversies be-tween two or more States ; between a State and citi-zens of another State; between citizens of differentStates, between citizens of the same State claiminglands under grants of different States, and between aState, or the citizens thereof, and foreign States,citizens, or subjects." In all cases affecting ambassadors, other public


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8 AMERICAN SUPREME COURTministers, and consuls, and those in which a Stateshall be party, the Supreme Court shall have orig-inal jurisdiction. In all the other cases before men-tioned, the Supreme Court shall have appellate juris-diction, both as to law and fact, with such exceptions,and under such regulations as the Congress shallmake."

(The remaining provisions deal with criminalcases.)

In pursuance of the authority thus conferred Congressproceeded to pass the Judiciary Act of 1789, providing*for the establishment of a complete system of Federalcourts throughout the whole country. Of this Act itis necessary to cite the fourteenth section :

" The Supreme Court shall have exclusive juris-diction of all controversies of a civil nature, wherea State is a party, except between a State and itscitizens ; and except also between a State and citizensof other States, or aliens, in which latter cases itshall have original but not exclusive jurisdiction."

Again, it will be observed, no express provision is made,either in the Constitution itself or in the Act of Congress,for ensuring the compliance of States with the decreesof the Court.

In the debates preceding the ratification of the Consti-tution by the various States strong opposition to thewhole idea of a Federal Supreme Court appeared in manyquarters. In particular objection was expressed that theprovisions of the Article might expose a sovereign Stateto the indignity of being summoned to the bar of theCourt at the suit of a private litigant. John Marshall,afterwards Chief Justice of the United States, and otherspeakers poured ridicule upon this argument, saying ineffect that no one ever contemplated such an absurdity,and it is certain that the public opinion of the day would


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ORIGIN OF THE SUPREME COURT 9never have consented to such an infraction of Staterights. 1

Marshall, however, was for once in the wrong. In 1792a suit was actually filed in the Supreme Court by oneChisholm of South Carolina against the State of Georgia,the claim being for certain moneys due to an estate ofwhich the plaintiff was executor. Georgia refused to ap-pear, but the case came on for argument in the next year,and a majority of the Court held that the action wasmaintainable. 2 This decision created widespread indigna-tion throughout the Union, for it was clearly contrary tothe understanding upon which the great majority ofAmericans had consented to the establishment of aSupreme Court and a Federal judiciary. In Georgiafeeling ran so high that a bill was actually introducedinto the Legislature threatening with the death penaltyany one who should attempt to enforce the judgment.Next year Congress took action to overrule the judg-ment by the Eleventh Amendment to the Constitution,which became effective in 1798. The Amendment runsas follows:

" The judicial power of the United States shall notbe construed to extend to any suit in law or equity,commenced or prosecuted against one of the UnitedStates by citizens of another State, or by citizens orsubjects of any foreign State."

Various attempts were made to circumvent the prohibi-tory effect of the Amendment, either by bringing suitagainst a State official as nominal defendant or by a Statelending its name to a private plaintiff for the prosecutionof what was really a private claim. These attempts, how-ever, failed. The Court in each case looked at the sub-

1 See p. 101, post. 2 2 Dallas, 419.


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io AMERICAN SUPREME COURTstance of the action rather than the form, and invariablyrejected all such claims as were in substance suits byindividuals against States. The details of these attemptsbelong rather to the study of American constitutionallaw than to the history of the Court in its internationalcharacter.A few words may be added as to the personnel of theCourt. The original establishment provided for a chiefjustice and five associate justices; the full number at thepresent day is nine. The judges are irremovable exceptupon impeachment, their tenure thus being slightly moresecure than that even of the British judges, who can beremoved upon an address from both Houses of Parlia-ment. Their salaries cannot be reduced during theirterm of office. Up to the present there has been only oneattempt to impeach a judge of the Supreme Court,Samuel Chase of Maryland, and this was defeated in1805, though two convictions have been obtained againstinferior Federal judges.1Washington was keenly sensible of his high responsi-

bility in making his original appointments to the Court,and his selection was amply justified by events. Thefirst Chief Justice was John Jay of New York, and theassociates were James Wilson of Pennsylvania, WilliamCushing of Massachusetts, John Blair of Virginia, JamesIredell of North Carolina, and Thomas Johnson of Mary-land. In the course of its history the Court has includedmany eminent men, but space only permits us here tonotice one, John Marshall of Virginia, who presided overit from 1801 until 1835. Marshall has by common con-sent now won a permanent place among the great lawyersof the world. To him, more than to any other man,

1 The attack on Chase was a purely political attempt to punishthe Court for its " Federalist " leanings. Of the two convictionsone was for personal misconduct and one for rebellion.


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ORIGIN OF THE SUPREME COURT nAmerica owes that progressive interpretation of the Con-stitution which has enabled it to keep pace with the needsof a community that has grown far beyond anything thatits founders could have imagined.No other tribunal in the world's history has hithertobeen entrusted with responsibilities so high as those of theSupreme Court, and men who to-day are contemplatingthe settlement of all international disputes by judicialmeans may well ask how far the actual history of theCourt has justified the confidence reposed in it by itsauthors. 1

It is not altogether easy to give an unqualified answer.At the outset much suspicion and hostility had to be over-come, and the successful resistance of Georgia to theChisholm judgment affords a fair measure of popularfeeling in Revolutionary times. Again in 1857 a greatoutbreak of resentment was provoked by the decision inthe Dred Scott case,2 when a majority of the Court heldthat a slave returning from a free Territory to a slaveState was still a slave and as such without civil rights.This doctrine was formally condemned by the RepublicanConvention which nominated Lincoln in 1860, and mustundoubtedly be reckoned among the causes which con-tributed to the Civil War. In two other notable politicalcases where strong party feeling was aroused the judgesof the Court were divided in opinion along strictly partylines. In one of these, the " Legal Tender Case " 3 of1871, the Court actually reversed by a majority of five tofour its own decision of the previous year,4 which hadbeen rendered by a majority of five to three. The deathof one judge and two new appointments to the bench hadsufficed to turn the balance. In the other instance, that

1 This topic is treated more at length in Chapter VII.2 Scott v. Sandjord, 19 Howard, 393. See p. 91, post.3 12 Wallace, 457.4 Hepburn v. Griswold, 8 Wallace, 603.


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12 AMERICAN SUPREME COURTof a disputed presidential election in 1877, five judges ofthe Court were included in the commission of inquiry,and they voted on purely party lines just as did the non-judicial members.On the other hand, it will be found that no such doubt-ful motives appear to have affected the decisions of theCourt in any of the inter-State cases which we shallexamine in the following chapters. In direct suits be-tween two States the Court has always shown a highstandard of impartiality, and judges have more than oncevoted against the contentions of the States to which theythemselves belonged. The confidence of the States in theCourt has deepened with the advance of time, and theyhave shown an increasing willingness to submit their dis-putes to its decision.

Before parting from this question it is necessary tobear in mind that the Court did not prevent, and wasgiven no opportunity of preventing, the Civil War. Theimmediate dispute in the Civil War turned, not upon theethics of slavery, but upon the right claimed for theSouthern States to withdraw from the Union. Thatquestion had been left open by the Constitution, and ifit ever had come before the Supreme Court we may becertain that neither party would have tamely submittedto an adverse decision. The issue was clearly defined onthe 2Oth December, 1860, when the South Carolina Con-vention repealed the ordinance ratifying the Constitution,and declared that South Carolina resumed her sovereignplace among the nations. Other Southern States quicklyfollowed suit, and it is obvious that, if they were right intheir contention, the jurisdiction of the Supreme Courtover the controversy was annulled by the mere fact ofsecession. As a matter of fact the South was fully de-termined to fight, if necessary, in support of its claim,and Northern opinion, after a certain amount of hesi-


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ORIGIN OF THE SUPREME COURT 13tancy, arrived at an equally strong determination to fightfor the Union. Ultimately the matter was settled by war,and the victory of the North was recorded in threeAmendments * to the Constitution.The moral of this surely is that no laws and no law

courts upon earth can in the last resort restrain Statesor nations who are fully determined to fight rather thanto forego what they consider to be their just claims. Theultimate cure for war lies, not in any particular judicialmachinery, but in the growth among all nations of awillingness to settle controversies by judicial rather thanby warlike methods.

This is not a merely cynical conclusion, nor does itjustify us in saying that there is no sphere of usefulnessfor an international court. Any war is a terrible thing,and a court which cannot prevent all wars will havejustified its existence if it even succeeds in preventingone.

In the following chapters we shall try to discover howfar American experience justifies us in putting our hopesin a permanent international court as a means of preserv-ing peace among the nations of the world.

1 I3th, 1865; I4th, 1868; I5th, 1870. The last, which purportsto give the negroes equal suffrage with whites, has been nullifiedin practice by the ingenuity of Southern statesmen.


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CHAPTER IIEXTENT OF THE JURISDICTION

THE third Article of the Constitution was drafted insomewhat general terms, and many points were left to besettled by the Court itself as they should arise. This wasprobably inevitable. Any attempt to work out every con-ceivable problem in 1787 would undoubtedly have pre-vented any agreement upon the main question of theacceptance of the Constitution. The first necessity wasto induce the suspicious States to accept any Court at all.That being done it would remain with the Court itself tojustify its existence in the eyes of the American peopleby the wisdom and fairness of its decisions.Under the Confederation only one inter-State disputewas decided by the commission procedure already de-scribed. Eleven boundary cases, mostly of long stand-ing, remained unsettled when the Confederation was suc-ceeded by the " more perfect union " of the presentConstitution.The States, however, showed no undue eagerness toappeal to the new tribunal, and it was not until 1846 that

the first final decree was entered in a suit between twoStates. The earliest cases deal only with small points ofprocedure, and are therefore of scarcely more than tech-nical interest. In 1799 New York filed a suit againstConnecticut 1 arising out of a boundary dispute, and in1830 an action was begun by New Jersey against NewYork. 2 Neither suit was prosecuted beyond the initial*4 Dallas, i. 2 3 Peters, 461.


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EXTENT OF THE JURISDICTION 15stages. As the Constitution had said nothing about pro-cedure, the Court was left to find its own way, and thisbeing so it was natural that judges who had been broughtup on the English common law should model their pro-cedure as far as possible upon the existing practice ofthe English courts. Accordingly it was laid down

" that this court consider the practice of the courtof king's bench and of chancery, in England, asaffording outlines for the practice of this court; andthat they will, from time to time, make such altera-tions therein, as circumstances may render neces-sary." 1

It is only necessary to add that the Court, in handlingthese questions of procedure, felt its way forward withthe utmost caution, and with a keen sense of the dignityof the parties before its bar.

In passing we may notice a case decided in 1831, inwhich the Cherokee Indians sought the aid of theSupreme Court to put an end to the continued perse-cution to which they were subjected by the State ofGeorgia.2 Persistent ill-treatment of the Indian tribesforms an unpleasing feature of early American history,and upon the merits of the case it is evident that therewas only too good foundation for the Cherokee claim.But the question of jurisdiction turned upon whether theIndian tribes were entitled to be regarded as " foreignStates " within the meaning of the phrase in Article IIIof the Constitution. This question a majority of theCourt answered in the negative, though Marshall took theopportunity of expressing in strong language the indigna-tion felt by the whole Court at the treatment to whichthe unfortunate Cherokees had been subjected.The great question of jurisdiction to entertain a suit

1 5 Peters, 284-5. 2 5 Peters, i. See pp. 72-5, post.


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16 AMERICAN SUPREME COURTbetween two States was first fully argued and decided inthe case of Rhode Island v. Massachusetts, which beganin I833, 1 but did not reach a final judgment until 1846.*The suit was brought to determine a boundary disputeof nearly two hundred years standing, and to the ordi-nary reader it would appear that this was precisely thekind of controversy which was intended by the Consti-tution to be decided in the Supreme Court. But the doc-trine of State sovereignty was tenaciously held for longafter the Revolution, and Massachusetts contended stren-uously and ingeniously for the view that the question didnot fall within the jurisdiction of the Court. Counselmaintained that the dispute was wholly political in itsnature, and that the Court could not determine politicalcontroversies; that no law existed to govern the case;that there was no procedure applicable to it; and thatthere was no means of enforcing the decision of theCourt.These arguments found favour in the eyes of ChiefJustice Taney, who was an ardent believer in the doctrineof State rights, but were decisively overruled by themajority of the Court. The jurisdiction, as Mr. JusticeBaldwin pointed out, was derived from the consent of theseveral States when they accepted the Constitution; andas a matter of history it was easy to show that boundarydisputes were the commonest causes of controversy andthose which it was especially desired to submit to judicialdecision. Since diplomatic intercourse was forbidden tothe States by the first Article (Sec. 10) of the Constitu-tion it was clear that such controversies could not bepeaceably terminated except by judicial means. So faras matters of law were concerned, the question could betreated just as if it were a boundary case between twoprivate landowners. Questions political in their origin

1 7 Peters, 651. 2 4 Howard, 591.


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EXTENT OF THE JURISDICTION 17could become judicial by submission to a proper tribunal.Procedure could be regulated by following the Englishpractice, subject to any necessary modifications. Onepassage from the judgment may well be quoted:

" We are thus pointed to the true boundary linebetween political and judicial power, and questions.A sovereign decides by his own will, which is thesupreme law within his own boundary; a court orjudge decides according to the law prescribed bythe sovereign power, and that law is the rule forjudgment. The submission by the sovereigns orstates to a court of law or equity of a controversybetween them, without prescribing any rule of de-cision, gives power to decide according to the appro-priate law of the case, which depends on the subjectmatter, the source and nature of the claims of theparties, and the law which governs them. From thetime of such submission the question ceases to be apolitical one to be determined by the sic volo, sicjubeo of political power; it comes to the court tobe decided by its judgment, legal discretion, andsolemn consideration of the rules of law appropriateto its nature as a judicial question, depending on theexercise of judicial power; as it is bound to act byknown and settled principles of national or munici-pal jurisprudence, as the case requires."

The question of jurisdiction was determined in 1838,but the case dragged on for many years, Massachusettsraising every kind of technical delay in order to evadeor postpone a decision on the merits. Ultimately thecause came on for final hearing in 1846, and the judg-ment of the Court was delivered in favour of Massa-chusetts, mainly on the ground of long possession ofthe disputed territory.In the next case, that of Missouri v. Iowa 2 in 1849,no question of jurisdiction arose, as the bill was filed by

1 12 Peters, 737. 2 7 Howard, 660.P. 4345 B


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i8 AMERICAN SUPREME COURTconsent of both parties in order to settle a question ofboundary. In 1850 another boundary suit was filed byFlorida against Georgia,1 in which again no objection wasraised to the jurisdiction. The case however merits at-tention because of the successful claim made by theUnited States to intervene in the action, when the casecame on for argument in i854. 2 This claim was basedpartly on the ground that the validity of Federal grantswas involved and partly on the interest which the Federalgovernment had, on behalf of itself and all the otherStates, in seeing that any question of State boundarieswas correctly decided. Technically such a claim was opento objection, because the United States desired to inter-vene and produce evidence without assuming the liabili-ties of a party to the action. The Federal contention wasopposed by both the parties to the suit, but a majority ofthe Court decided to disregard technical objections andto admit the intervention. The case is interesting becauseit illustrates what has always been the consistent policyof the Court in handling inter-State controversiesnamely, a refusal to allow the technical rules of procedurewhich obtain in private cases to interfere with a full con-sideration of every case upon its substantial merits.The jurisdiction was again asserted after argumentin 1860 3 in a case where Kentucky sought to compel theGovernor of Ohio by mandamus to deliver up for triala free negro who was accused of violating the Kentuckylaw by assisting the escape of a slave. Feeling on theslavery question ran high in 1860, and it was abundantlyclear that nothing short of superior force would inducethe authorities of Ohio to deliver up the fugitive. TheCourt affirmed its jurisdiction to hear the case, and heldthat the action against the Governor was in substance an

1 n Howard, 293.2 17 Howard, 478.3 Kentucky v. Dennison, Governor of Ohio; 24 Howard, 66.


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EXTENT OF THE JURISDICTION 19action against the State. Procedure, it was again laiddown, was a matter entirely within the discretion ofthe Court, and the procedure by mandamus was the mostappropriate in the particular case. They went on to saythat the text of the Constitution imposed upon the Gov-ernor an absolute obligation to deliver up all fugitivesfrom justice, irrespective of the offence with which theywere charged, and he was not entitled to exercise anydiscretion in the matter. But although this was so, theCourt held that there was no means provided by the lawfor enforcing the obligation.

" The performance of this duty, however, is leftto depend on the fidelity of the State Executive tothe compact entered into with the other States whenit adopted the Constitution of the United States, andbecame a member of the Union. ... If the Gov-ernor of Ohio refuses to discharge this duty, thereis no power delegated to the General Government,either through the Judicial Department or throughany other Department, to use any coercive means tocompel him. And upon this ground the motion forthe mandamus must be overruled." *

The next case raising the question of jurisdiction cameafter the Civil War and arose out of it. During the war,in the year 1861, the people of the mountain counties inthe northwest of Virginia broke off from the main bodyof that State and erected themselves into a new Stateunder the title of West Virginia. The draft constitu-tion provided that two counties, the sympathies of whichwere doubtful, might have the option of joining the newState by plebiscite. Legal assent to this arrangement wasgiven in May, 1862, by a body which Congress recog-nised as the lawful legislature of Virginia, though in factit only represented the minority of Virginians whose

1 24 Howard, 109-10. See Chapter VI, post.


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20 AMERICAN SUPREME COURTsympathies were with the North. The consent of Con-gress having been duly obtained, a new State of theUnion came into existence on the 2Oth April, 1863.Shortly afterwards the two doubtful counties voted forinclusion in West Virginia, and were duly handed overwith the cordial consent of the minority legislature of theparent State. In 1866 Congress passed an act recog-nising the transfer.

In the eastern theatre of war fighting ended withLee's surrender to Grant at Appomattox in April, 1865.In December of the same year the legislature of Vir-ginia, which now again really represented the people,passed an act repealing the acts under which the twocounties had been transferred. This was followed up bya suit in the Supreme Court against West Virginia,1which came on for argument in 1870.West Virginia demurred to the jurisdiction on thesame ground as that taken by Massachusetts in 1838,

namely, that the question was in its nature not judicial,but purely political. In view of the earlier cases therecould be but one answer to this contention.

" We consider, therefore," said Mr. Justice Millerfor the majority of the Court, " the established doc-trine of this Court to be, that it has jurisdiction ofquestions of boundary between two States of thisUnion, and that this jurisdiction is not defeated,because in deciding that question it becomes neces-sary to examine into and construe compacts or agree-ments between those States, or because the decreewhich the Court may render affects the territoriallimits of the political jurisdiction and sovereigntyof the States which are parties to the proceeding."

Upon the merits of the case the Court held that Virginiawas bound by the acts of her minority legislature, to*ir Wallace, 39. 2 n Wallace, 55.


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EXTENT OF THE JURISDICTION 21which Congress had assented. The two counties weretherefore adjudged to West Virginia.The jurisdiction of the Court was now well estab-lished, and no new question arose for many years. Thecase of New Hampshire v. Louisiana 1' in 1883 needs nomore than a passing notice, because it was not so mucha controversy between States as an attempt on the partof individuals, with the connivance of a State, to evadethe Eleventh Amendment. The case arose out of theinability or unwillingness of Louisiana to meet her liabili-ties on certain bonds, which were held by citizens ofXew Hampshire and New York. Being unable to sue intheir own names the holders made an arrangement, con-firmed by statute, with their respective State authorities,by which the bonds were to be nominally assigned to theState, and the State was to bring suit for the sums due.The whole benefit, risks, and costs of the proceedingswere to be borne by the bondholders in spite of the as-signment. Upon these facts the Court had no difficultyin finding that the assignment was merely colourable, thatthe real title remained in the bondholders, and that thesuits were in substance brought in defiance of theAmendment.

This case may be compared with a somewhat similarone of South Dakota v. North Carolina? decided in 1904.In this case the bondholders made a free gift of theirbonds to South Dakota, and reserved to themselves nokind of right or interest in any proceedings that mightsubsequently be taken. The gifts were of course madewith the object of enabling the State to sue upon thebonds, and the donors expressed a wish that the proceedsmight be devoted to State charities. North Carolinastrenuously argued that this case came within the prin-

1 108 U. S., 76.0 . ., 76.192 U. S., 286. See pp. 63, 98, post.


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22 AMERICAN SUPREME COURTciple of the earlier decision, and so fell within the pro-hibition of the Eleventh Amendment. The majority ofthe Court, however, held that neither the motive prompt-ing the action nor the status of the donor affected thevalidity of the gift, so long as title genuinely passed. A" controversy between States " having arisen, the juris-diction of the Supreme Court to decide it was affirmed,and a decree of foreclosure was accordingly made againstNorth Carolina.The jurisdiction of the Court to determine boundary

disputes having been firmly established, we may passover a series of boundary cases in which no objection tothe jurisdiction was raised by either party. A new prob-lem was, however, presented by the case of Louisiana v.Texas? which came before the Court in 1900. The com-plaint in this case was that the quarantine laws of Texas,instead of being honestly aimed at the protection of thepublic health, were in reality aimed at diverting profitabletrade from the port of New Orleans in Louisiana to theport of Galveston in Texas. A complete embargo hadbeen placed upon all traffic entering Texas from NewOrleans, although the medical reasons were quite insuf-ficient to justify such stringent action. This, it wasclaimed by Louisiana, was an attempt by Texas to regu-late inter-State commerce, a right reserved under theConstitution to the United States.The Court, however, refused to entertain the suit. The

main reason given for this decision was that the contro-versy was not one " between States," but was really anattempt to sue Texas for an injury suffered by certaincommercial firms of New Orleans. The Court declinedto accept the view that Louisiana was entitled to sue as" par'ens patriae, trustee, guardian, or representative ofall her citizens." The technical ground was also taken

1 176 U. S., i.


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EXTENT OF THE JURISDICTION 23that Texas had not so far adopted or authorised theaction of her health officer as to make it her own Stateaction,A proverb tells us that it is the duty of a good judgeto enlarge his jurisdiction, and the decision of the

Supreme Court in this case does not seem easy to recon-cile with the principles which had hitherto guided itsrulings. The opinion was not that of an unanimousCourt. Two judges who concurred in the result did sofor different reasons, while Mr. Justice Brown, thoughconcurring on technical grounds, maintained stronglythe right and duty of a State to protect its individualcitizens against foreign oppression.

" In view/* he said, " of the solicitude which fromtime immemorial States have manifested for theinterest of their own citizens; of the fact that warsare frequently waged by States in vindication ofindividual rights, of which the last war with Eng-land, the opium war of 1840 between Great Britainand China, and the war which is now being carriedon in South Africa between Great Britain and theTransvaal Republic, are all notable examples ; of thefurther fact that treaties are entered into for theprotection of individual rights, that internationaltribunals are constantly being established for thesettlement of rights of private parties, it would seema strange anomaly if a State of this Union, which isprohibited by the Constitution from levying warupon another State, could not invoke the authorityof this Court by suit to raise an embargo which hadbeen established by another State against its citizensand their property. An embargo, though not an actof war, is frequently resorted to as preliminary to adeclaration of war, and may be treated under certaincircumstances as a sufficient casus belli. The casemade by the bill is the extreme one of a total stop-page of all commerce between the most importantcity in Louisiana and the entire State of Texas; and


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24 AMERICAN SUPREME COURTwhile I fully agree that resort cannot be had to thisCourt to vindicate the rights of individual citizens,or any particular number of individuals, where aState has presumed to prohibit all kinds of com-merce with the chief city of another State, I thinkher motive for doing so is the proper subject ofjudicial inquiry." *

Whichever view be taken, the principle involved is ob-viously of international importance. It is possible thatthe majority of the judges were not entirely confident ofthe soundness of their decision, for a judgment pro-nounced in a somewhat similar case only two years laterseems to rest upon different and firmer ground.The case of Kansas v. Colorado,2 decided in 1902, aroseout of a complaint by Kansas that Colorado was wrong-fully diverting the waters of the Arkansas River, whichflowed through the territory of both States. The objectof the diversion was to irrigate the dry lands of Colorado,but this had the result, so it was claimed, of impairingthe fertility of Kansas. Colorado denied the jurisdictionon the ground, successfully maintained by Texas in theearlier case, that the suit was really brought to protectthe interests of private landowners in the State ofKansas. The plaintiff State presented her claim both asan individual landowner, and on behalf of her citizensaffected by the diversion of the stream. The Court,without attempting to distinguish the earlier case, heldthat the facts alleged presented a " controversy betweenStates " suitable for determination by the Supreme Court,and consequently affirmed the jurisdiction.The ordinary layman would no doubt consider that ofthese two cases Louisiana v. Texas presented the strongerreasons for the intervention of the Supreme Court. In

1 176 U. S., 27.2 185 U. S., 125. See p. 81, post.


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EXTENT OF THE JURISDICTION 25Kansas v. Colorado there was at the most a legitimateconflict of interests between two riparian proprietors asto the use of a flowing stream a kind of dispute withwhich the courts are familiar in ordinary life. There wasno suggestion that the action of Colorado was inspiredby any hostility towards Kansas. But in the earlier case,if the plaintiff's statement proved to be correct, the policyof Texas was actuated by a desire to destroy, under thepretext of quarantine laws, the entire commerce of NewOrleans. This is the kind of action which in inter-national affairs leads to war; and since the main objectof an international Court is the prevention of war, itseems difficult to understand why the Supreme Courtrefused even to investigate Louisiana's complaint. Theinjury complained of in the later case, as in the earlier,was purely to proprietary rights, and the judgment of theCourt does not seem to have turned upon the fact that asmall piece of the land involved was owned by the Stateof Kansas itself.The real explanation of Kansas v. Colorado is to be

found in the intervening case of Missouri v. Illinois,1decided in 1901. The complaint of Missouri in thisaction was that Illinois was polluting the Mississippi bydischarging crude sewage into it through the IllinoisRiver, and thus injuring the health of the people of Mis-souri. Illinois, like Texas, demurred to the jurisdictionon the ground that the interests of individuals only wereaffected and that the question did not concern Missourias a State.The Court, however, affirmed its jurisdiction to hear

the case. Mr. Justice Shiras, who delivered the judg-ment of the majority, naturally felt the embarrassmentcaused by the Louisiana decision, and laboriously en-deavoured to distinguish it from the case before him.

1 180 U. S., 208. See p. 79, post.


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26 AMERICAN SUPREME COURTHis somewhat elaborate explanation may be thus sum-marised in his own words :

" The Court [in Louisiana v. Texas\ did not de-cline jurisdiction, but exercised it in holding that thefacts alleged in the bill did not justify the Court ingranting the relief prayed for."

This is by no means easy to reconcile with the actuallanguage of the Court in the earlier case, but it is scarcelyworth while analysing the matter too closely from thepoint of view of legal consistency. What really hap-pened was that the judges changed their minds, and tooka broader view of the extent of their own jurisdiction.It may be remarked that Chief Justice Fuller and twoother judges dissented from the decision in Missouri v.Illinois, holding that no " controversy between States "was presented. In Kansas v. Colorado the judgment wasunanimous, and it is evident that the sound reasoning ofMr. Justice Brown in Louisiana v. Texas had graduallywon its way to general acceptance.

It will be observed that by 1902 the Court had thrownover all remnants of the timidity with which by a ma-jority it had ventured to assume jurisdiction of a boun-dary case in 1838. At the present day it is probably trueto say that there is no genuine dispute between two Stateswhich the Court is not prepared to decide, if the facts arepresented to it in proper form.A half-hearted attempt to challenge the jurisdictionwas made in 1906, when Louisiana filed a bill againstMississippi 2 to determine the boundary within whicheach State might regulate the fisheries in an arm of thesea called Mississippi Sound. The objection raised byMississippi came sixty years too late, and was easilyoverruled. It is, however, worth remarking that, when

1 180 U. S., 240. 2 202 U. S., i. See p. 47, post.


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EXTENT OF THE JURISDICTION 27the dispute arose, each party organised armed patrols toenforce its rights, and an armed conflict was really onlyaverted by the confidence which each of the disputantsfelt in the Supreme Court.There remains to be considered only one case of a dis-pute between States in which the jurisdiction of the Courtwas again questioned. This is the great case of Virginiav. West Virginia? which in its various aspects has en-gaged the attention of the Supreme Court repeatedly since1906.Like the earlier case between the same parties, to whichreference has already been made, 2 this dispute arose out

of the separation of West Virginia from the parent Stateduring the Civil War. The Wheeling Convention of1 86 1, which organised the separation, undertook that thenew State should assume a just proportion of the publicdebt of Virginia contracted prior to the ist January,186 1. This undertaking was repeated in the Constitu-tion of West Virginia, where it was coupled with apromise that the legislature should ascertain the amountof the debt " as soon as may be practicable," and providefor its discharge. The substance of Virginia's case isthus stated by Chief Justice Fuller :

" From 1865 to 1905 various efforts were madeby Virginia through its constituted authorities toeffect an adjustment and settlement with West Vir-ginia for an equitable proportion of the public debtof the undivided State, proper to be borne and paidby West Virginia, but all these efforts proved un-availing, and it is charged that West Virginia re-fused or failed to take any action or do anything forthe purpose of bringing about a settlement or ad-justment with Virginia. The original jurisdictionof this Court was therefore invoked by Virginia to

1 206 U. S., 290. See pp. 67, 99, post.2 II Wallace, 39. Ante, p. 19.


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28 AMERICAN SUPREME COURTprocure a decree for an accounting as between thetwo States, and, in order to a full and correct ad-justment of the accounts, the adjudication and deter-mination of the amount due Virginia by West Vir-ginia in the premises." *

In demurring to the jurisdiction West Virginia main-tained that the facts alleged did not constitute a " contro-versy between States " in the sense contemplated by theConstitution; that there was no means of enforcing afinal decree for the sum due; and that the proviso inher Constitution, sanctioned by Congress, for ascertain-ing the amount of the debt by the action of her legis-lature took the matter out of the jurisdiction of theSupreme Court.

In view of the recorded decisions of the Court it wasimpossible to expect that such contentions should prevail,and they were decisively rejected by an unanimous Court.With regard to the question of enforcing the decree ChiefJustice Fuller said " that it is not to be presumed ondemurrer that West Virginia would refuse to carry outthe decree of this Court," 2 though the Court might haveto consider the course to be adopted in the event of suchan unpleasant emergency actually arising. This decisionwas rendered in 1907, and the judges who gave it doubt-less felt perfectly confident that any decree which theymight make would be unhesitatingly obeyed by any Statein the Union. Unfortunately these hopes have not beenrealised. A final decree for a large sum was madeagainst West Virginia in June, 1915, but for nearly fouryears all attempts to obtain payment have failed, and itseemed likely that the Supreme Court would be facedwith the chief difficulty that must always confront anyinternational court, the difficulty of enforcing compliancewith its own judgments. At the time of writing, how-1206 U. S., 317. 2 2o6 U. S., 319.


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EXTENT OF THE JURISDICTION 29ever, it is gratifying to know that wiser counsels haveprevailed, and provision is now (1919) being made bythe West Virginia legislature to satisfy the decree.The only question remaining to be considered underthe head of jurisdiction is the position before theSupreme Court of the United States itself. Under theConstitution x the jurisdiction extends " to controversiesto which the United States shall be a party; to contro-versies between two or more States; ..." What isthe exact meaning to be attached to these words ?The first case of suit by the United States against aState occurred in 1890, when the Federal authoritiesbrought an action of debt against North Carolina 2 uponcertain unpaid bonds of that State. No objection wastaken to the jurisdiction in this case, which thereforeneed not detain us further. But two years later the rightof the United States to sue a State was strongly, thoughunsuccessfully, challenged by the State of Texas.The bill in this case 3 was filed to determine whethera certain area of country formed part of the State ofTexas or of the Federal territory of Oklahoma. Thecase turned mainly upon the terms of several treaties andupon a great deal of geographical evidence, such as thevalue of various maps and surveys. Texas not onlydenied the Federal title to the land, but also denied thejurisdiction of the Supreme Court to hear the case.Her argument ran as follows : A sovereign State canonly be sued by its own consent, and the only consent isthat to be found in the terms of the Constitution. Theconsent given there can only be read as a consent to suitby other States. Express consent would be required toa suit by the United States, for this would not be a suitbetween equals, since the Federal Government would

1 See p. 7, ante.2 136 U. S., 211. See p. 61, post.3 143 U. S., 621. See p. 44, post.


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3o AMERICAN SUPREME COURThave the advantage in a Federal Court. It was furthersaid that the question was political, not judicial, in itsnature, and certain objections of a technical kind werealso raised. Historically there was good support for thisargument in the fact that at the Philadelphia Conventionproposals for expressly giving the Court jurisdiction incontroversies between the United States and a State hadbeen deliberately rejected by the delegates.The majority of the Court, in rejecting the Texanclaim, relied mainly upon the words of the Constitutionwhich give the Court jurisdiction " in all cases ... inwhich a State shall be a party." But they were also im-pressed by what may be called the practical argument,that if jurisdiction were refused, the only alternativeswould be to settle the dispute either by agreement, ofwhich there was no prospect, or by suit in a Texan Courtwith the consent of Texas, or in the last resort by war.The jurisdiction was accordingly affirmed. It is per-haps questionable whether such a decision would haveentirely pleased the men of 1787, but its practical con-venience and good sense in the twentieth century cannotbe disputed. " It would be difficult," said Mr. JusticeHarlan for the majority of the Court, " to suggest anyreason why this Court should have jurisdiction to deter-mine questions of boundary between two or more States,but not jurisdiction of controversies of like character be-tween the United States and a State." *

It should be added that Chief Justice Fuller and Mr.Justice Lamar dissented from this decision.

It being clearly established that the United States couldsue a State of the Union in the Supreme Court, the ques-tion has arisen whether the converse also holds good,enabling a State to bring the United States to the bar ofthe Court as an unwilling defendant. This problem was

1 143 U. S., 645.


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EXTENT OF THE JURISDICTION 31first presented by the case of Kansas v. United States 1decided in 1907. The dispute concerned the ownershipof certain lands which had been granted by Federalstatute for the purpose of railroad construction. Coun-sel for the United States demurred to the jurisdiction,partly on the ground that Kansas was only a nominalparty, and partly on the ground that the United Stateshad not consented to be sued. With regard to the latterpoint the question of jurisdiction is not altogether clear.In an earlier case, referred to in the opinion of the Court,Mr. Justice Brewer had said :

' The silence of counsel does not waive the ques-tion, nor would the express consent of the partiesgive to this Court a jurisdiction which was not war-ranted by the Constitution and laws. It is the dutyof every court of its own motion to inquire into thematter irrespective of the wishes of the parties, andbe careful that it exercises no powers save thoseconferred by law. Consent may waive an objectionso far as respects the person, but it cannot invest acourt with a jurisdiction which it does not by lawpossess over the subject-matter." 2

In the present case the Court dismissed the bill forwant of jurisdiction 3 on the ground that the UnitedStates had not consented to be sued. This decision is notquite easy to reconcile with the dictum just quoted thateven consent cannot confer a jurisdiction which does notexist. The distinction drawn by the Court would appearto be that in order to give jurisdiction the consent mustbe by statute, either general or special ; a consent on thepart of the executive authority is not sufficient.

Such a general consent was given in 1855 by the Actof Congress creating the Court of Claims, a tribunal1 204 U. S., 343.- Minnesota v. Hitchcock, 185 U. S., 387.3 2o4 U. S., 331.


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32 AMERICAN SUPREME COURTformed to enable contractual and similar claims againstthe United States to be settled by judicial rather than byexecutive or legislative authority. Before this Court wasset up the strict application of the doctrine of sover-eignty favoured in America rendered it impossible for acitizen to obtain judicial investigation of any claim whichhe might have against the Federal Government. As aneminent judge of the Court once remarked: "The gov-ernment of the United States holds itself, of nearly allgovernments, the least amenable to the law."

In England the Crown is nominally exempt from suitexcept by its own consent, but in practice the procedureknown as " petition of right " enables any contractualclaim against the Crown to be prosecuted with the samecertainty of judicial treatment as obtains in a suit betweenprivate parties. Since the American Constitution was de-signed to be, in Marshall's phrase, " a government oflaws, and not of men," it is perhaps remarkable that solong a time was suffered to elapse before any effectiveremedy was provided against the failure of executiveauthorities to meet their obligations.The statutes constituting the Court did not expresslyprovide for the case of claims by a State against theFederal Government, and the jurisdiction of the Court tohear such suits was disputed by the United States whenthe question first arose upon a claim presented byLouisiana in i887.x The jurisdiction was, however, af-firmed upon appeal by the Supreme Court, and has sincebeen exercised in several similar cases.We have already noticed in passing the case of Floridav. Georgia, 2 where the Court permitted the United Statesto intervene in a boundary dispute between two States onthe ground that Federal grants were in question and thatthe United States had a legitimate interest in seeing that

1 123 U. S., 32. 2 17 Howard, 478. Ante, p. 18.


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EXTENT OF THE JURISDICTION 33inter-State boundaries were correctly drawn. In this con-nection it may be added that in 1907 the United Statesagain sought to intervene between two States in thesecond phase of the case of Kansas v. Colorado,1 whereKansas complained of the diversion by Colorado of thewaters of the Arkansas River. But in this case theintervention was disallowed by the Court on the groundthat the subject-matter of the dispute was not one ofthose which the Constitution had committed to the careof the Federal Government. The United States hasauthority to regulate navigable waters, but the diversioncomplained of did not affect the stream in its navigableportion.

It is clear from the decision in this case that any claimof the United States to intervene in a dispute between twoStates will be somewhat jealously regarded by theSupreme Court.1206 U. S., 46. See p. 82, post.

P. 4345


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CHAPTER IIIBOUNDARY CASES

A STUDY of the map of the United States will showthat in the great majority of cases

the inter-State boun-daries consist either of rivers or of mathematical lines.Thus, for example, the Mississippi gives a frontier to noless than ten States; each of its two principal tributaries,the Ohio and the Missouri, forms the border of five more,and many lesser streams have also been adopted as Stateboundaries. But even more remarkable is the generalprevalence in America of the geometrical frontier.Every State in the Union is in part at least bounded byan arbitrary straight line, and some of the westernStates have no natural frontiers. Even in the RockyMountains there has been but little disposition to followwatershed demarcations, and the lines of latitude orlongitude are followed over mountain and valley with acomplete disregard of physical possibility.From this it will be seen that the boundary caseswhich the Supreme Court is called upon to solve differconsiderably from the frontier problems which from timeto time confront European statesmen. In Europe thesedisputes are usually of a purely political character. Thedifficulty of fixing the limits of Poland, Roumania, orYugo-Slavia arises not from any uncertainty as to thetrue course of a river or the accuracy of a survey, but inhistorical events, strategic or economic requirements, andthe conflicting wishes of diverse populations. In America

34


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BOUNDARY CASES 35the inter-State boundary disputes, although they haveoccasionally aroused strong feeling, have never sinceRevolutionary times been based upon any serious conflictof policy or ideals. 1 In substance they have for the mostpart been exactly like disputes between adjoining land-owners in the ordinary courts. Of the cases noted in thischapter only one, that of Virginia v. West Virginia ini87O, 2 had its origin in a real political quarrel, and evenin that case the solution of the problem in the SupremeCourt rested upon the purely legal ground that Virginiahad given a valid consent under the Constitution to thetransfer of the disputed counties. It will also be observedthat in no case has the decision of the Supreme Courtbeen influenced in any way by the wishes of the people inthe territory affected by the decision. The argumentfrom long possession has always had great weight withthe Court, but neither Court nor counsel has ever ap-pealed to the

"right of self-determination." The Court

is bound by the Constitution, and the Constitution admitsof no argument upon any such ground.The first boundary case to be settled in the SupremeCourt was that of Rhode Island v. Massachusetts, which,after many years of the most dilatory proceedings thatcan be imagined, was decided in favour of Massachusettsin i846.

3 The question between the parties was whethera line drawn in 1642, and acted upon ever since, consti-tuted the true boundary between the two States. RhodeIsland contended that the line as drawn did not carry outthe directions of the colonial charters, and that althoughout of possession for over two centuries she had donenothing to forfeit her claim. Massachusetts denied the

1 Even parallels of latitude are capable of arousing passion.When the question of the Canada-Oregon boundary came upin 1846 a popular war-cry of the Democratic party was " Fifty-four forty or fight ! "2 1 1 Wallace, 39.3 4 Howard, 591.


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36 AMERICAN SUPREME COURTplaintiff's construction of the charters, and relied uponthe fact that the existing line had been settled by agree-ment between the two colonies in 1718; in addition shepleaded long possession and the neglect of Rhode Islandto assert her claims in good time. Rhode Island admittedthe agreement of 1718, but pleaded that she had acceptedit under a mistake.The Court held that the fact of any mistake had not

been proved, and that Rhode Island was bound by theagreement of 1718. But the decision in favour of Massa-chusetts rested mainly on the argument from long andundisturbed possession.

" More than two centuries have passed," said Mr.Justice McLean for the Court, " since Massachusettsclaimed and took possession of the territory up tothe line established by Woodward and Saffrey. Thispossession has ever since been steadily maintained,under an assertion of right. It would be difficult todisturb a claim thus sanctioned by time, however un-founded it may have been in its origin. . . . Forthe security of rights, whether of States or indi-viduals, long possession under a claim of title isprotected. And there is no controversy in whichthis great principle may be involved with greaterjustice and propriety than in a case of disputedboundary." *

The next case in order of time is that of Missouri v.lowOj, which came before the Court by consent of bothStates, and was decided in i849, 2 though the consequen-tial proceedings did not end until i897- 3 The disputeturned upon the true location of an artificial boundarylaid down by Congress when it admitted Missouri to theUnion in 1820, and the facts are of little interest to anybut surveyors. The procedure adopted is, however,*4 Howard, 638-9. 2 7 Howard, 660. 3 165 U. S., 118.


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BOUNDARY CASES 37worthy of notice, since it became the regular practice ofthe Court in similar cases. The Court after hearing theevidence and arguments decides upon the general line tobe followed. Commissioners are then appointed to sur-vey the actual line upon the ground, and to mark it withsuitable monuments. They are directed to make a reportto the Supreme Court by a certain date, and the Stateshave the opportunity of expressing their views upon thereport thus presented. If no objection is made or sus-tained, the commissioners' report is confirmed by theCourt, and the line thus surveyed and marked becomesthe final boundary between the States. The whole costsof the survey are to be shared equally by the parties.Florida v. Georgia (1854) * has been already noted

with regard to the claim made by the United States tointervene in the argument, and is not otherwise of generalinterest. The next case, that of Alabama v. Georgia ini859, 2 was a dispute about a river boundary, but the pointinvolved was a small one. The boundary was defined in1802 by an agreement between the United States andGeorgia in the following words :

" West of a line beginning on the western bank ofthe Chattahoochee River, where the same crosses theboundary between the United States and Spain, run-ning up the said river and along the western bankthereof/'

The boundary thus described afterwards became the east-ern boundary of the State of Alabama, and the sole ques-tion between the parties now was whether the word" bank " was meant to fix the line at the high or at thelow water mark in the stream. In seeking for authorityupon this problem the Court ranged over a wide field,decided cases, writings of publicists, and dictionaries

J I7 Howard, 478. 2 23 Howard, 505.


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38 AMERICAN SUPREME COURTbeing alike laid under contribution. 1 In the result theAlabama claim of the low water mark was definitelyrejected, and Georgia was given the high water mark,exclusive of such ground as is only covered by exceptionalfloods. The exact words used are as follows :

[< This language implies that there is ownership ofsoil and jurisdiction in Georgia in the bed of theRiver Chattahoochee, and that the bed of the riveris that portion of its soil which is alternately coveredand left bare, as there may be an increase or diminu-tion in the supply of water, and which is adequate tocontain it at its average and mean stage during theentire year, without reference to the extraordinaryfreshets of the winter or spring, or the extremedroughts of the summer or autumn." 2

It is perhaps most convenient to treat in this chapterthe first case of Virginia v. West Virginia (iS/o),3though in substance it is not so much a boundary disputeas a question of the validity of a political act. The factsof this case have been briefly referred to in the previouschapter. The Court having overruled the defendantState's demurrer to the jurisdiction, the question for de-cision was whether Virginia had validly consented to thetransfer of the two disputed counties to the new State,and, if so, whether Congress had also given an adequateconsent. A majority of the Court held that Virginia wasbound by the action of the minority legislature withNorthern sympathies which had assented to the trans-action in 1862, and that the repudiation of its act inDecember, 1865, was of no effect. The consent of

1 Howard observes : " These arguments [of counsel] partookrather of the character of a diplomatic negotiation than aforensic dispute, and the reporter declines to attempt to abbrevi-ate them in a law book" (23 Howard, 510).2 23 Howard, 514. 3 n Wallace, 39.


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BOUNDARY CASES 39Congress was given by a resolution of the loth March,1866. Three judges dissented from this decision, andheld that Virginia had effectively repealed the acts passedby the minority legislature during the war, since the re-pealing act was passed before the consent of Congresshad been obtained.

It may be observed that in this case the inhabitants ofthe two counties had by plebiscite signified their wish tobelong to West Virginia, but this fact in no way in-fluenced the judgment of the Court. Bound as it was bythe terms of the Constitution, the Court would not havebeen at liberty to consider any such arguments. All itcould do was to decide whether all the conditions pre-scribed for the erection of a new State had been properlyfulfilled.The case of Missouri v. Kentucky, also decided in

iS/o, 1 is one of several boundary disputes arising outof changes in a river bed.

2The treaty of 1763 betweenGreat Britain, France, and Spain, upon which many of

the existing State frontiers depend, fixed the middle ofthe Mississippi as the boundary between the British andthe French possessions in North America. Kentucky wasadmitted to the Union in 1792, being formed out of ter-ritory belonging to Virginia, and the middle of the Mis-sissippi was made her western boundary. Missouri wasadmitted in 1820, the same line being taken as her easternfrontier. The dispute related to a piece of land knownas Wolf Island, lying in the Mississippi about twentymiles below the mouth of the Ohio. Originally the mainstream of the river flowed west of Wolf Island, and theeastern or Kentucky channel was only occasionally

1 ii Wallace, 395-2 Cases arising out of the same cause are very common inthe courts of British India, and have been decided upon sub-stantially the same principles as have guided the Supreme Court.The diversions of the great Indian rivers are often much moreextensive than those described in this chapter.


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40 AMERICAN SUPREME COURTnavigable. In the course of time the river graduallyshifted, until at the date of the suit the main streamflowed east of the island. Jurisdiction over the land inquestion had at all times been exercised by Kentucky.Upon these facts the Court unanimously decided infavour of Kentucky, the law being thus laid down byMr. Justice Davis :

" If Wolf Island in 1763 or in 1820 or at anyintermediate period between these dates, was east ofthis line, the jurisdiction of Kentucky rightfully at-tached to it. If the river has subsequently turnedits course, and now runs east of the island, the statusof the parties to this controversy is not altered byit, for the channel which the river abandoned re-mains, as before, the boundary between the States,and the island does not, in consequence of this actionof the water, change its owner/' *

Very similar to this is the case of Indiana v. Kentucky,decided in iSgo,2 which concerned a strip of land knownas Green River Island on the north side of the OhioRiver. The evidence showed that, when Kentucky be-came a State in 1792, the river flowed north of theisland, and continued to do so after the admission ofIndiana to the Union in 1816. At the time of suitgradual changes in the stream had reduced the northernchannel to little more than a ditch, and the island wasnow claimed by Indiana. Jurisdiction over the land indispute had always been exercised by Kentucky.The issue between the parties was really one of his-torical fact, since the principle of law had been clearlylaid down in Missouri v. Kentucky. The Court havingcome to the . conclusion that the river originally flowednorth of Green Island it naturally followed that the de-cision was again in favour of Kentucky:

1 U Wallace, 401. 2 136 U. S., 479.


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BOUNDARY CASES 41" Her dominion and jurisdiction continue as they

existed at the time she was admitted into the Union,unaffected by the action of the forces of nature uponthe course of the river." *

And commenting upon the long exercise of jurisdictionby Kentucky the Court observed:

" It is a principle of public law universally recog-nised that long acquiescence in the possession ofterritory and in the exercise of dominion and sover-eignty over it, is conclusive of the nation's title andrightful authority." 2

The rivers of the Mississippi basin are somewhat er-ratic in their behaviour, and the next case, that ofNebraska v. Iowa in 1892^ arose out of a sudden andviolent change in the course of the Missouri River. Bythe statutes admitting the two States into the Union theircommon boundary had been fixed as the middle of themain channel of the stream. " In 1877," to quote the lan-guage of the Court, " the river above Omaha, which hadpursued a course in the nature of an ox-bow, suddenly cutthrough the neck of the bow and made for itself a newchannel." 4The decision of the case was based upon a distinction

known to students of Roman law as the distinction be-tween " avulsion " and " accretion."" It is settled law," said Mr. Justice Brewer forthe whole Court, " that when grants of land borderon running water, and the banks are changed bythat gradual process known as accretion, the riparianowner's boundary line still remains the stream,

although, during the years, by this accretion, theactual area of his possessions may vary. ... It1 136 U. s. f 508. * 143 U. S., 359.2 136 U. S., 510. * 143 U. S., 370.


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42 AMERICAN SUPREME COURTis equally well settled, that where a stream, which isa boundary, from any cause suddenly abandons itsold and seeks a new bed, such change of channelworks no change of boundary; and that the boun-dary remains as it was, in the centre of the oldchannel, although no water may be flowing therein.This sudden and rapid change of channel is termedin the law avulsion." 1

The Court was here applying a well-established principlewhich writers on international law have borrowed fromthe civil law of Rome. The case did not admit of adecree entirely in favour of either party, since both ac-cretion and avulsion had contributed to the changes inthe channel of the Missouri River.

" The only thing which distinguishes this riverfrom other streams in the matter of accretion is inthe rapidity of the change caused by the velocity ofthe current; and this in itself, in the very nature ofthings, works no change in the principles underlyingthe rule of law in respect thereto. . . . The boun-dary therefore between Iowa and Nebraska is avarying line so far as affected by these changes ofdiminution and accretion in the mere washing of thewaters of the stream/'

Having laid down the principles of law applicable to thecase, the Court declined to make any decree, and sug-gested to the parties that the line might now be fixed byagreement. This was accordingly done, and a fewmonths later the agreed line was incorporated in a de-cree of the Court. 3The case of Iowa v. Illinois (1893) 4 turned upon a

comparatively small point. The boundary between thetwo States was " the middle of the Mississippi," a line1 143 U. S., 360-1. s 145 U. S., 519.2 143 U. S., 369-70. 4 147 U. S., i.


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BOUNDARY CASES 43inherited from the Franco-British treaty of 1763. Theriver was spanned by a bridge between the town ofHamilton in Iowa and the town of Keokuk in Illinois,and the question was to what point in the bridge thetaxing powers of each State extended. Iowa claimedthat the mathematical centre of the river was the trueboundary, while Illinois argued for the centre of themain navigable channel. The decree of the Court wasgiven in favour of Illinois, a decision supported by theconsent of writers on international law and clearly inaccordance with practical convenience. As the Courtremarked : " The interest of each State in the navigationof the river admits of no other line."

In the same year was decided the case of Virginia v.Tennessee,1 an ancient dispute as to the true location ofa su

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(1920) The American Supreme Court as an International Tribunal