The American Judiciary Part 9

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 Const.i.tution 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 a.s.sociation 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 unconst.i.tutional. 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 a.s.sessment 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 antic.i.p.ation 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 a.s.sociation 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 Ta.s.sel, one of the tribe, to death for murdering another of them. Ta.s.sel 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 a.s.sociation for 1901, II, 77.] and Ta.s.sel 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 Ta.s.sel'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 p.r.o.nounce finally, so far as the States are concerned, upon every question brought before it as to the meaning and effect of the national Const.i.tution, 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 p.r.o.nounced the protective tariff Acts unconst.i.tutional and void, but that it a.s.sumed 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, -- 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_., -- 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 ent.i.tled 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 Const.i.tution, and our representatives in Congress after them, must be regarded as having had in view the language, laws, and inst.i.tutions 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 a.n.a.logies, 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 inst.i.tuted 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 const.i.tution 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 a.s.serted, 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_, x.x.xVI, 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 Const.i.tution.[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.

The equitable jurisdiction of the courts of the United States enables them to interfere in disputes arising out of State elections in certain cases in which the claim is set up that rights held under the Const.i.tution or laws of the United States have been violated. Actions for such relief are rare, and instances have occurred in which the remedy has been abused for political purposes.[Footnote: See the proceedings in the case of Kellogg _v._ Warmoth in the United States Circuit Court in Louisiana in 1872. McPherson's "History of Reconstruction,"

100-108.]

The centralizing and nationalizing tendencies which set in early in the nineteenth century and were so greatly strengthened by the course of events during and following soon after the Civil War have greatly weakened the position and influence of the State courts. They have thus rendered the State bench less attractive.

In 1791, John Rutledge, an a.s.sociate justice of the Supreme Court of the United States, resigned that office for the Chief Justiceship of South Carolina. During the last half century, several Chief Justices of States have resigned to become a.s.sociate Justices of the Supreme Court of the United States.

a.s.sociate Justices of Supreme Courts in the smaller States have also frequently resigned to accept the position of District Judge, attracted by the life tenure, larger salary, and retiring pension.

CHAPTER XI

RELATIONS BETWEEN THE COURTS OF DIFFERENT STATES

Every State has all the rights of an independent sovereign, except so far as its sovereignty is limited by the Const.i.tution of the United States. As respects each other the States are for most purposes in the position of foreign governments. The courts of one are regarded by those of any other as foreign courts, except so far as the Const.i.tution may have prescribed a different rule.

No legal process from a court can have any inherent force outside of the territorial boundaries of the government in which it is issued. The law of that government may attach certain consequences to the fact of its service in a foreign country, but it can do so only with reference to the effect of the proceeding on persons or property subject to its own jurisdiction. Courts, as a general rule, can act only when they have jurisdiction over the person, the subject-matter, and the cause.

In rare cases, jurisdiction over the subject-matter may be regarded as giving jurisdiction over the person, so far as may be necessary to uphold a judgment settling the possession or t.i.tle to property. Such a proceeding is, either in form or substance, one not _in personam_ but _in rem_. The commonest instance is a suit in admiralty to enforce a maritime lien, such as that given by the universal law of the sea for seamen's wages.

Wherever the vessel is found, this lien is recognized and will be enforced by seizing and selling her, but only after some kind of public notice has been given to all who have any pecuniary interest in her to appear and be heard. In such a suit, personal notice to her owners, served within the jurisdiction of the government to the courts of which the seamen may resort, is not indispensable. The presence of the ship within the power of the court is enough.

While State courts have no admiralty jurisdiction, they can adjudicate upon a claim of t.i.tle or right of possession to fixed property within the territorial limits of their State, although the parties adversely interested are not and have not been personally served with process there or anywhere. Here again their power over the property necessarily implies such power of control over those who might lay claim to it as will suffice to settle any dispute over its ownership or possession. But in all ordinary cases they are not only powerless to subject any one to obedience to their judgments who is not personally within the State in which they exist, but powerless so to subject one who is personally within it, but who did not belong there and was not there served with process in the original proceeding leading up to the judgment, unless he voluntarily took part in the proceeding.

In most civilized nations there is a recognized form of proceeding by which a judgment of a foreign court, fairly rendered after giving a proper opportunity to the defendant for a hearing, can be enforced by process from a domestic tribunal.

This is styled making the foreign judgment executory. The English common law did not recognize such a right, and gave no remedy to one desiring to enforce a foreign judgment, except that of bringing a fresh suit. In like manner, whoever has recovered a judgment against an inhabitant of any State, in a court held outside of that State, can enforce it against him in his own State only by bringing a new action. This either is, or is in the nature of, the common law action of "debt on judgment"; and only two defenses are available. These are, first, that no such judgment exists or is in force; and, second, that if it exists, it was rendered by a court having no jurisdiction over the subject-matter or the defendant.[Footnote: Pennoyer _v._ Neff, 95 U. S. Reports, 714; Grover & Baker Sewing Machine Co. _v._ Radcliffe, 137 U. S. Reports, 287.] If there was jurisdiction, it is of no consequence that it was erroneously or unfairly exercised. The remedy for that must be sought in the State where the judgment was p.r.o.nounced. Even fraud on the part of the plaintiff in procuring it, though a defense against a judgment of a foreign country is not one against a judgment of another State.[Footnote: Christmas _v._ Russell, 5 Wallace's Reports, 290.] These rules are established by Art. IV, Sec. I of the Const.i.tution of the United States and by Acts of Congress pa.s.sed to enforce it.[Footnote: U. S. Revised Statutes, Sec. 905.]

Commercial intercourse between the different States is so great and so constant that questions in the courts of one often arise which turn on the law of another. Those who do any act do it with implied reference to the law of the place where it is done, so far as respects its legal consequences. If it is a wrongful act there, it will in most instances be deemed a wrongful act everywhere. If it leads to a certain result as regards property rights there, it will ordinarily give a right of action anywhere, to secure the benefit of that result.

The law of each State is largely an unwritten common law. Even in those where they have full codes defining civil rights, these codes are expressed in terms for the definitions of many of which the common law gives the rule. But this common law is not precisely the same in any two States. In minor points certainly, and perhaps in capital ones, there will be a divergence. In England there is one uniform common law. Here, divided as we are for most business purposes into forty-five different sovereignties, it is multiform.

If, then, the court of one State in determining the legal effect of a transaction having its seat in another must be governed by the common law of that State, where is it to be found? If there have been decisions of its highest courts in regard to what it is with reference to the point in question, they will ordinarily be accepted as conclusive.

This is not by virtue of the provision in the Const.i.tution of the United States that full faith and credit is to be given in each State to the public records and proceedings of the others. That refers to the effect of public records and proceedings upon the rights of those who are or claim under parties to them. Such decisions as those which have been described are accepted as conclusive as to the rights of those who were not parties to them, and simply because they are considered the best evidence attainable of a rule of unwritten law of general application.

But they are not universally so considered. The rule that transactions are governed by the law of the place where they have their seat is one founded on the presumed intent of the parties to them. But in fact the parties to a business transaction act on their general notions of what the law is or must be, rather than on any particular knowledge of what courts have declared that it is. The rule that one country will accept the opinion of the judicial authorities of another as to what its law is, is one not to be pressed so far as to sacrifice essential justice. In this point of view, some courts hold that it is permissible to disregard decisions of other States which are based on a departure from what is generally considered a settled doctrine of the common law as to a commercial question. This is substantially the same position taken by the Supreme Court of the United States, and elsewhere described,[Footnote: See Chap. X.]

concerning the right of a federal court to refuse to be bound by State decisions as to the unwritten law affecting foreign trade or trade between the States.[Footnote: Faulkner _v._ Hart, 82 N. Y. Reports, 413, 423.]

Another rule of practice of great importance is that in the absence of proof to the contrary the courts will presume, in a State basing its jurisprudence on the English common law, that the unwritten law of any other American State is the same as its own. As the reason of this rule fails in the case of Louisiana, Florida and Texas, which were subject to organized governments not derived from Great Britain at the time when they were incorporated into the United States, it is not applied to them.[Footnote: Norris _v._ Harris, 15 California Reports, 253.]

Decisions of a court const.i.tute a precedent of binding obligation only within the particular territorial jurisdiction which is subject to its process. In the tribunals of one State decisions rendered in another on legal points are, so far as respects transactions not governed by its local law, without any authoritative force. They may be read, just as the opinions of an author expressed in a legal treatise, or as the decisions of an English or German court might be, for what they appear to be worth. No formal proof that they were really the deliverances of the court from which they purport to emanate is necessary to support their use for this purpose.

The reported decisions of courts of other States, whether published officially or unofficially, may be cited in argument in any cause, to fortify the claims of counsel as to the proper rules to be followed in reaching a decision. For this use they are introduced simply for the intrinsic value of the reasoning and conclusions.

If it is claimed that they prove the law of the State from which they come to be of a certain nature (and that is a material point in the case), they should be made the subject of proof before argument.[Footnote: Hanley _v._ Donoghue, 116 U. S. Reports, 1.] In many States this is dispensed with by statutes allowing courts to take judicial notice of all reported decisions in other States; that is, in effect, to take any means which they think proper to learn what they are. It is also the general practice of the bar where no such statutes exist to allow the reports of other States to be read for any purpose without objection.

Most States have statutes to facilitate the proof in court of the statute laws of other States. The mode prescribed by Act of Congress (Revised Statutes, Sec. 905) under the const.i.tutional provision, to which reference has been made, involves considerable expense for the proper certification of copies.

Common provisions of State legislation are that all courts may take judicial notice of the laws of other States (that is, take them into account without any formal proof at all), or that a copy of the official publications containing them shall be competent evidence of what they are.