Article III of U.S. Constitution-Judicial Department

American Law Made Easy

The Constitution of the United States of America: Analysis and Interpretation


Prepared by the Legislative Reference Service, Library of Congress
Edward S. Corwin, Editor

Article III

Section 1. The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Characteristics and Attributes of Judicial Power


Judicial power, as Justice Miller defined it in 1891, is the power “of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision”;[1] or in the words of the Court in Muskrat v. United States,[2] it is “the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.”[3] Although the terms “judicial power” and “jurisdiction” are frequently used interchangeably and jurisdiction is defined as the power to hear and determine the subject matter in controversy between parties to a suit,[4] or as the “power to entertain the suit, consider the merits and render a binding decision thereon,”[5] the cases and commentaries support and, for that matter, necessitate a distinction between the two concepts. Jurisdiction is the authority of a court to exercise judicial power in a specific case and is, of course, a prerequisite to the exercise of judicial power, which is the totality of powers a court exercises when it assumes jurisdiction and hears and decides a case.[6] Included with the general power to decide cases are the ancillary powers of courts to punish for contempts of their authority,[7] to issue writs in aid of jurisdiction when authorized by statute;[8] to make rules governing their process in the absence of statutory authorizations or prohibitions;[9] inherent equitable powers over their own process to prevent abuse, oppression and injustice, and to protect their own jurisdiction and officers in the protection of property in custody of law;[10] the power to appoint masters in chancery, referees, auditors, and other investigators;[11] and to admit and disbar attorneys.[12]


The distinction between judicial power and jurisdiction is especially pertinent to the meaning of the words “shall be vested.” Whereas all of the judicial power of the United States is vested in the Supreme Court and the lower federal judiciary, neither has ever been vested with all the jurisdiction they are capable of receiving under article III. Except for the original jurisdiction of the Supreme Court, which flows directly from the Constitution,[13] two prerequisites to jurisdiction must be present. First, the Constitution must have given the courts the capacity to receive it; second, an act of Congress must have conferred it.[14]


Since 1792 the federal courts have emphasized finality of judgment as an essential attribute of judicial power. In Hayburn’s Case[15] a motion for mandamus was filed in the Supreme Court to direct the Circuit Court for the District of Pennsylvania to act upon a petition for a pension under the pensions act which placed the administration of pensions in the judges of the federal courts, but which made the action of the courts on application subject to review by Congress and the Secretary of War. The Court took the case under advisement, but Congress changed the law by the act of February 28, 1793, before decision was rendered. In view of the attitude of the circuit courts of the United States for the districts of New York, North Carolina and Pennsylvania there can be no doubt what the decision would have been. The judges of the circuit courts in each of these districts refused to administer the pensions, because the revisory powers of Congress and the Secretary of War were regarded as making the administration of the law nonjudicial in nature. At the time of this episode, Chief Justice Jay and Justice Cushing were members of the Circuit Court in the New York district, Justices Wilson and Blair in Pennsylvania and Justice Iredell in North Carolina.

The Taney Doctrine

On these foundations Chief Justice Taney posthumously erected finality into a judicial absolute.[16] The original act creating the Court of Claims provided for an analogous procedure with appeals to the Supreme Court after which judgments in favor of claimants were to be referred to the Secretary of the Treasury for payments out of the general appropriation for the payment of private claims. However, section 14 of the act provided that no money should be paid out of the Treasury for any claims “till after an appropriation therefor shall be estimated by the Secretary of the Treasury.” In Gordon v. United States,[17] the Court refused to hear an appeal, probably for the reasons given in Chief Justice Taney’s opinion which he did not deliver because of his death before the Court reconvened but which was published many year later.[18] In any event the reiteration of Taney’s opinion in subsequent cases made much of it good law. Because the judgment of the Court of Claims and the Supreme Court depended for execution upon future action of the Secretary of the Treasury and of Congress, the Chief Justice regarded it as nothing more than a certificate of opinion and in no sense a judicial judgment. Congress, therefore, could not authorize the Supreme Court to take appeals from an auditor or require it to express an opinion in a case where its judicial power could not be exercised, where its judgment would not be final and conclusive upon the parties, and where processes of execution were not awarded to carry it into effect. The Chief Justice then proceeded to formulate a rule, repeated in many subsequent cases until modified in 1927 and reversed in 1933, to the effect that the award of execution is a part and an essential part of every judgment passed by a court exercising judicial powers; it was no judgment in the legal sense of the term without it.[19] This rule was given rigid application in Liberty Warehouse Co. v. Grannis,[20] where the Supreme Court sustained a district court in refusing to entertain a declaratory proceeding for lack of jurisdiction because such a proceeding was regarded as nonjudicial. One year later, the Court applied the extreme of the rule in Liberty Warehouse v. Burley Tobacco Growers Association,[21] when it ruled that it could exercise no appellate jurisdiction in a declaratory proceeding in a State court.

Award of Execution

Meanwhile in 1927 the Supreme Court began to qualify its insistence upon an award of execution, holding in Fidelity National Bank and Trust Co. v. Swope[22] that an award of execution is not an indispensable adjunct of the judicial process. This ruling prepared the way for Nashville, Chattanooga and St. Louis R. Co. v. Wallace[23] which reversed the decision in the Grannis case, sustained an appeal from a State court to the Supreme Court in a declaratory proceeding, and effectively interred the rule that award of execution is essential to judicial power. Regardless, nevertheless, of the fate of an award of execution, the rule that finality of judgment is an essential attribute of judicial power remains unimpaired.

Ancillary Powers


The summary power of the courts of the United States to punish contempts of their authority had its origin in the law and practice of England where disobedience of court orders was regarded as contempt of the King himself and attachment was a prerogative process derived from presumed contempt of the sovereign.[24] By the latter part of the eighteenth century summary power to punish was extended to all contempts whether committed in or out of court.[25] In the United States, the Judiciary Act of 1789 in section 17[26] conferred power on all courts of the United States “to punish by fine or imprisonment, at the discretion of said courts, all contempts of authority in any cause or hearing before the same.” The only limitation placed on this power was that summary attachment was made a negation of all other modes of punishment. The abuse of this extensive power led, following the unsuccessful impeachment of Judge James H. Peck of the Federal District Court of Missouri, to the passage of the act of 1831 limiting the power of the federal courts to punish contempts to misbehavior in the presence of the courts, “or so near thereto as to obstruct the administration of justice,” to the misbehavior of officers of courts in their official capacity, and to disobedience or resistance to any lawful writ, process or order of the court.[27]

An Inherent Power

The validity of the act of 1831 was sustained forty-three years later in Ex parte Robinson,[28] where Justice Field for the Court propounded principles full of potentialities for conflict. He declared: “The power to punish for contempts is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the due administration of justice. The moment the courts of the United States were called into existence and invested with jurisdiction over any subject, they become possessed of this power.” Expressing doubts concerning the validity of the act as to the Supreme Court, he declared, however, there could be no question of its validity as applied to the lower courts on the ground that they are created by Congress and that their “powers and duties depend upon the act calling them into existence, or subsequent acts extending or limiting their jurisdiction.”[29] With the passage of time, later adjudications, especially after 1890, came to place more emphasis on the inherent power of courts to punish contempts than upon the power of Congress to regulate summary attachment. By 1911 the Court was saying that the contempt power must be exercised by a court without referring the issues of fact or law to another tribunal or to a jury in the same tribunal.[30] In Michaelson v. United States[31] the Supreme Court intentionally placed a narrow interpretation upon those sections of the Clayton Act[32] relating to punishment for contempt of court by disobedience to injunctions in labor disputes. The sections in question provided for a jury trial upon the demand of the accused in contempt cases in which the acts committed in violation of district court orders also constituted a crime under the laws of the United States or of those of the State where they were committed. Although Justice Sutherland reaffirmed earlier rulings establishing the authority of Congress to regulate the contempt power, he went on to qualify this authority and declared that “the attributes which inhere in that power [to punish contempt] and are inseparable from it can neither be abrogated nor rendered practically inoperative.” The Court mentioned specifically “the power to deal summarily with contempts committed in the presence of the courts or so near thereto as to obstruct the administration of justice,” and the power to enforce mandatory decrees by coercive means.[33]

The Contempt Power Exalted

The phrase “in the presence of the Court or so near thereto as to obstruct the administration of justice” was interpreted in Toledo Newspaper Co. v. United States[34] so broadly as to uphold the action of a district court judge in punishing for contempt a newspaper for publishing spirited editorials and cartoons on questions at issue in a contest between a street railway company and the public over rates. A majority of the Court held that the test to be applied in determining the obstruction of the administration of justice is not the actual obstruction resulting from an act, but “the character of the act done and its direct tendency to prevent and obstruct the discharge of judicial duty.” Similarly the test of whether a particular act is an attempt to influence or intimidate a court is not the influence exerted upon the mind of a particular judge but “the reasonable tendency of the acts done to influence or bring about the baleful result * * * without reference to the consideration of how far they may have been without influence in a particular case.”[35] In Craig v. Hecht[36] these criteria were applied to sustain the imprisonment of the comptroller of New York City for writing and publishing a letter to a public service commissioner which criticized the action of a United States district judge in receivership proceedings.

Recession of the Doctrine

The decision in the Toledo Newspaper case did not follow earlier decisions interpreting the act of 1831 and was grounded on historical error. For these reasons it was reversed in Nye v. United States[37] and the theory of constructive contempt based on the “reasonable tendency” rule rejected in a proceeding wherein defendants in a civil suit, by persuasion and the use of liquor, induced a plaintiff feeble in mind and body to ask for dismissal of the suit he had brought against them. The events in the episode occurred more than 100 miles from where the Court was sitting, and were held not to put the persons responsible for them in contempt of court.

Bridges v. California

Although Nye v. United States is exclusively a case of statutory construction, it is significant from a constitutional point of view in that its reasoning is contrary to that of earlier cases narrowly construing the act of 1831 and asserting broad inherent powers of courts to punish contempts independently of and contrary to Congressional regulation of this power. Bridges v. California,[38] though dealing with the power of State courts to punish contempts, in the face of the due process clause of the Fourteenth Amendment, is significant for the dictum of the majority that the contempt power of all courts, federal as well as State, is limited by the guaranty of the First Amendment against interference with freedom of speech or of the press.

Summary Punishment of Contempt; Misbehavior of Counsel

There have been three notable cases within the last half century raising questions concerning the power of a trial judge to punish counsel summarily for alleged misbehavior in the course of a trial. In ex parte Terry,[39] decided in 1888, Terry had been jailed by the United States Circuit Court of California for assaulting in its presence a United States marshal. The Supreme Court denied his petition for a writ of habeas corpus. In Cooke v. United States,[40] however, decided in 1925, the Court remanded for further proceedings a judgment of the United States Circuit Court of Texas sustaining the judgment of a United States District judge sentencing to jail an attorney and his client for presenting the judge a letter which impugned his impartiality with respect to their case, still pending before him. Distinguishing the case from that of Terry, Chief Justice Taft, speaking for the unanimous Court, said: “The important distinction * * * is that this contempt was not in open court. * * * To preserve order in the court room for the proper conduct of business, the court must act instantly to suppress disturbance or violence or physical obstruction or disrespect to the court when occurring in open court. There is no need of evidence or assistance of counsel before punishment, because the court has seen the offense. Such summary vindication of the court’s dignity and authority is necessary. It has always been so in the courts of the common law and the punishment imposed is due process of law.”[41] The Chief Justice then added: “Another feature of this case seems to call for remark. The power of contempt which a judge must have and exercise in protecting the due and orderly administration of justice and in maintaining the authority and dignity of the court is most important and indispensable. But its exercise is a delicate one and care is needed to avoid arbitrary or oppressive conclusions. This rule of caution is more mandatory where the contempt charged has in it the element of personal criticism or attack upon the judge. The judge must banish the slightest personal impulse to reprisal, but he should not bend backward and injure the authority of the court by too great leniency. The substitution of another judge would avoid either tendency but it is not always possible. Of course where acts of contempt are palpably aggravated by a personal attack upon the judge in order to drive the judge out of the case for ulterior reasons, the scheme should not be permitted to succeed. But attempts of this kind are rare. All of such cases, however, present difficult questions for the judge. All we can say upon the whole matter is that where conditions do not make it impracticable, or where the delay may not injure public or private right, a judge called upon to act in a case of contempt by personal attack upon him, may, without flinching from his duty, properly ask that one of his fellow judges take his place. Cornish v. United States, 299 F. 283, 285; Toledo Newspaper Co. v. United States, 237 F. 986, 988. The case before us is one in which the issue between the judge and the parties had come to involve marked personal feeling that did not make for an impartial and calm judicial consideration and conclusion, as the statement of the proceedings abundantly shows.”[42]

Contempt Power: Punishment of Counsel; Sacher Case

This case[43] is an outgrowth of the trial of the eleven Communists,[44] in which Sacher et al. were counsel for the defense. The facts of the case were as follows: On receiving the verdict of conviction of the defendants, trial Judge Medina at once issued a certificate under Rule 42 (a) of Federal Rules of Criminal Procedure, finding counsel guilty of criminal contempt and imposing various jail terms up to six months. The immediate question raised was whether the contempt charged was one which the judge was authorized to determine for himself, or one which under Rule 42 (b) could only be passed upon by another judge and after notice and hearing; but behind this issue loomed the same constitutional issue which was dealt with by the Court in the Cooke case, of the requirements of due process of law. The Court sustained the Circuit Court of Appeals in affirming the convictions and sentences, at the same time, however, reversing some of Judge Medina’s specifications of contempt, one of these being the charge that the petitioners entered into an agreement deliberately to “impair my health.” “We hold,” said Justice Jackson, speaking for the majority, “that Rule 42 allows the trial judge, upon the occurrence in his presence of a contempt, immediately and summarily to punish it, if, in his opinion, delay will prejudice the trial. We hold, on the other hand, that if he believes the exigencies of the trial require that he defer judgment until its completion he may do so without extinguishing his power. * * * We are not unaware or unconcerned that persons identified with unpopular causes may find it difficult to enlist the counsel of their choice. But we think it must be ascribed to causes quite apart from fear of being held in contempt, for we think few effective lawyers would regard the tactics condemned here as either necessary or helpful to a successful defense. That such clients seem to have thought these tactics necessary is likely to contribute to the bar’s reluctance to appear for them rather more than fear of contempt. But that there may be no misunderstanding, we make clear that this Court, if its aid be needed, will unhesitatingly protect counsel in fearless, vigorous and effective performance of every duty pertaining to the office of the advocate on behalf of any person whatsoever. But it will not equate contempt with courage or insults with independence. It will also protect the processes of orderly trial, which is the supreme object of the lawyer’s calling.”[45]

Contempt by Disobedience of Orders

Disobedience of injunction orders, particularly in labor disputes, has been a fruitful source of cases dealing with contempt of court. In United States v. United Mine Workers[46] the Court held that disobedience of a temporary restraining order issued for the purpose of maintaining existing conditions, pending the determination of the court’s jurisdiction, is punishable as criminal contempt where the issue is not frivolous but substantial. Secondly, the Court held that an order issued by a court with jurisdiction over the subject matter and person must be obeyed by the parties until it is reversed by orderly and proper proceedings, even though the statute under which the order is issued is unconstitutional. Thirdly, on the basis of United States v. Shipp,[47] it was held that violations of a court’s order are punishable as criminal contempt even though the order is set aside on appeal as in excess of the court’s jurisdiction or though the basic action has become moot. Finally, the Court held that conduct can amount to both civil and criminal contempt, and the same acts may justify a court in resorting to coercive and to punitive measures, which may be imposed in a single proceeding.

Criminal Versus Civil Contempts

Prior to the United Mine Workers Case, the Court had distinguished between criminal and civil contempts on the basis of the vindication of the authority of the courts on the one hand and the preservation and enforcement of the rights of the parties on the other. A civil contempt consists of the refusal of a person in a civil case to obey a mandatory order. It is incomplete in nature and may be purged by obedience to the Court order. In criminal contempt, however, the act of contempt has been completed, punishment is imposed to vindicate the authority of the Court, and a person cannot by subsequent action purge himself of such contempt.[48] In a dictum in Ex parte Grossman,[49] Chief Justice Taft, while holding for the Court on the main issue that the President may pardon a criminal contempt, declared that he may not pardon a civil contempt. In an analogous case, the Court was emphatic in a dictum that Congress cannot require a jury trial where the contemnor has failed to perform a positive act for the relief of private parties.[50]

Judicial Power Aids Administrative Power

Proceedings to enforce the orders of administrative agencies and subpoenas issued by them to appear and produce testimony have become increasingly common since the leading case of Interstate Commerce Commission v. Brimson,[51] where it was held that the contempt power of the courts might by statutory authorization be utilized in aid of the Interstate Commerce Commission in enforcing compliance with its orders. In 1947 a proceeding to enforce a subpoena duces tecum issued by the Securities and Exchange Commission during the Course of an investigation was ruled to be civil in character on the ground that the only sanction was a penalty designed to compel obedience. The Court then enunciated the principle that where a fine or imprisonment imposed on the contemnor is designed to coerce him to do what he has refused to do, the proceeding is one for civil contempt.[52]


From the beginning of government under the Constitution of 1789 Congress has assumed under the necessary and proper clause, its power to establish inferior courts, its power to regulate the jurisdiction of federal courts and the power to regulate the issuance of writs. The Thirteenth section of the Judiciary Act of 1789 authorized the circuit courts to issue writs of prohibition to the district courts, and the Supreme Court to issue such writs to the circuit courts. The Supreme Court was also empowered to issue writs of mandamus “in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”[53] Section 14 provided that all courts of the United States should “have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.”[54] Issuance of the writ of habeas corpus was limited in that it was to extend only to persons in custody under or by color of authority of the United States. Although the act of 1789 left the power over writs subject largely to the common law, it is significant as a reflection of the belief, in which the courts have on the whole concurred, that an act of Congress is necessary to confer judicial power to issue writs.

Common Law Powers of the District of Columbia Courts

That portion of section 13 which authorized the Supreme Court to issue writs of mandamus in the exercise of its original jurisdiction was held invalid in Marbury v. Madison,[55] as an unconstitutional enlargement of the Supreme Court’s original jurisdiction. After two more futile efforts to obtain a writ of mandamus, in cases in which the Court found that power to issue the writ had not been vested by statute in the courts of the United States except in aid of already existing jurisdiction,[56] a litigant was successful in Kendall v. United States ex rel. Stokes[57] in finding a court which would take jurisdiction in a mandamus proceeding. This was the circuit court of the United States for the District of Columbia which was held to have jurisdiction, on the theory that the common law, in force in Maryland when the cession of that part of the State which became the District of Columbia was made to the United States, remained in force in the District. At an early time, therefore, the federal courts established the rule that mandamus can be issued only when authorized by a constitutional statute and within the limits imposed by the common law and the separation of powers.

Habeas Corpus

Although the writ of habeas corpus has something of a special status by virtue of article I, section 9, paragraph 2, the power of a specific court to issue the writ has long been held to have its authorization only in written law.[58] In Ex parte Yerger,[59] where the petitioner was held in custody by the military authorities under the Reconstruction Acts, the Court, referring to the prohibition against the suspension of the writ of habeas corpus, clearly indicated that Congress is not bound to provide for the protection of federal rights by investing the federal courts with jurisdiction to protect them. Furthermore, the case also incorporates the rule that power to issue the writ may be withdrawn even in pending cases.[60] The rules pertaining to mandamus and habeas corpus are applicable to the other common law and statutory writs, the power to issue which, though judicial in nature, must be derived from the statutes and cannot go beyond them.

Congress Limits the Inquisition Power

Although the speculations of some publicists and some judicial dicta[61] support the idea of an inherent power of the federal courts sitting in equity to issue injunctions independently of statutory limitations, neither the course taken by Congress nor the specific rulings of the Supreme Court support any such principle. Congress has repeatedly exercised its power to limit the use of the injunction in the federal courts. The first limitation on the equity jurisdiction of the federal courts is to be found in section 16 of the Judiciary Act of 1789, which provided that no equity suit should be maintained where there was a full and adequate remedy at law. Although this provision did no more than declare a pre-existing rule long applied in chancery courts,[62] it did assert the power of Congress to regulate the equity powers of the federal courts. The act of March 2, 1793,[63] prohibited the issuance of any injunction by any court of the United States to stay proceedings in State courts except where such injunctions may be authorized by any law relating to bankruptcy proceedings. In subsequent statutes Congress has prohibited the issuance of injunctions in the federal courts to restrain the collection of taxes;[64] provided for a three-judge court, as a prerequisite to the issuance of injunctions to restrain the enforcement of State statutes for unconstitutionality,[65] for enjoining federal statutes for unconstitutionality,[66] and for enjoining orders of the Interstate Commerce Commission;[67] limited the power to issue injunctions restraining rate orders of State public utility commissions,[68] and the use of injunctions in labor disputes;[69] and placed a very rigid restriction of the power to enjoin orders of the administrator under the Emergency Price Control Act.[70]

All of these restrictions have been sustained by the Supreme Court as constitutional and applied with varying degrees of thoroughness. The Court has made exceptions to the application of the prohibition against the stay of proceedings in State courts,[71] but has on the whole adhered to the statute. The exceptions raise no constitutional issues, and the later tendency is to contract the scope of the exceptions.[72]

In Duplex Printing Company v. Deering,[73] the Supreme Court placed a narrow construction upon the labor provisions of the Clayton Act and thereby contributed in part to the more extensive restriction by Congress of the use of injunctions in labor disputes in the Norris-LaGuardia Act of 1932 which has not only been declared constitutional,[74] but has been applied liberally,[75] and in such a manner as to repudiate the notion of an inherent power to issue injunctions contrary to statutory provisions.

Injunctions Under the Emergency Price Control Act of 1942

Lockerty v. Phillips[76] justifies the same conclusion. Here the validity of the special appeals procedure of the Emergency Price Control Act of 1942 was sustained. This act provided for a special Emergency Court of Appeals which, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of regulations, orders, and price schedules issued by the Office of Price Administration. The Emergency Court and the Emergency Court alone was permitted to enjoin regulations or orders of OPA, and even it could enjoin such orders only after finding that the order was not in accordance with law, or was arbitrary or capricious. The Emergency Court was expressly denied power to issue temporary restraining orders or interlocutory decrees; and in addition the effectiveness of any permanent injunction it might issue was to be postponed for thirty days. If review was sought in the Supreme Court by certiorari, effectiveness was to be postponed until final disposition. A unanimous court speaking through Chief Justice Stone declared that there “is nothing in the Constitution which requires Congress to confer equity jurisdiction on any particular inferior federal court.” All federal courts, other than the Supreme Court, it was asserted, derive their jurisdiction solely from the exercise of the authority to ordain and establish inferior courts conferred on Congress by article III, § 1, of the Constitution. This power, which Congress is left free to exercise or not, was held to include the power “‘of investing them with jurisdiction either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.'”[77] Although the Court avoided passing upon the constitutionality of the prohibition against interlocutory decrees, the language of the Court was otherwise broad enough to support it, as was the language of Yakus v. United States[78] which sustained a different phase of the special procedure for appeals under the Emergency Price Control Act.


Among the incidental powers of courts is that of making all necessary rules governing their process and practice and for the orderly conduct of their business.[79] However, this power too is derived from the statutes and cannot go beyond them. The landmark case is Wayman v. Southard[80] which sustained the validity of the process acts of 1789 and 1792 as a valid exercise of authority under the necessary and proper clause. Although Chief Justice Marshall regarded the rule-making power as essentially legislative in nature, he ruled that Congress could delegate to the courts the power to vary minor regulations in the outlines marked out by the statute. Fifty-seven years later in [Pg 526]Fink v. O’Neil,[81] in which the United States sought to enforce by summary process the payment of a debt, the Supreme Court ruled that under the process acts the law of Wisconsin was the law of the United States and hence the Government was required to bring a suit, obtain a judgment, and cause execution to issue. Justice Matthews for a unanimous Court declared that the courts have “no inherent authority to take any one of these steps, except as it may have been conferred by the legislative department; for they can exercise no jurisdiction, except as the law confers and limits it.”

Limits to the Power

The principal function of court rules is that of regulating the practice of courts as regards forms, the operation and effect of process, and the mode and time of proceedings. However, rules are sometimes employed to state in convenient form principles of substantive law previously established by statutes or decisions. But no such rule “can enlarge or restrict jurisdiction. Nor can a rule abrogate or modify the substantive law.” This rule is applicable equally to courts of law, equity, and admiralty, to rules prescribed by the Supreme Court for the guidance of lower courts, and to rules “which lower courts make for their own guidance under authority conferred.”[82] As incident to the judicial power, courts of the United States possess inherent authority to supervise the conduct of their officers, parties, witnesses, counsel, and jurors by self-preserving rules for the protection of the rights of litigants and the orderly administration of justice.[83]

The courts of the United States possess inherent equitable powers over their process to prevent abuse, oppression and injustice, and to protect their jurisdiction and officers in the protection of property in the custody of law.[84] Such powers are said to be essential to and inherent in the organization of courts of justice.[85] The courts of the United States also possess inherent power to amend their records, correct the errors of the clerk or other court officers, and to rectify defects or omissions in their records even after the lapse of a term, subject, however, to the qualification that the power to amend records conveys no power to create a record or re-create one of which no evidence exists.[86]


The administration of insolvent enterprises, investigations into the reasonableness of public utility rates, and the performance of other judicial functions often require the special services of masters in chancery, referees, auditors, and other special aids. The practice of referring pending actions to a referee was held in Heckers v. Fowler[87] to be coeval with the organization of the federal courts. In the leading case of Ex parte Peterson[88] a United States district court appointed an auditor with power to compel the attendance of witnesses and the production of testimony. The Court authorized him to conduct a preliminary investigation of facts and file a report thereon for the purpose of simplifying the issues for the jury. This action was neither authorized nor prohibited by statute. In sustaining the action of the district judge, Justice Brandeis, speaking for the Court, declared: “Courts have (at least in the absence of legislation to the contrary) inherent power to provide themselves with appropriate instruments required for the performance of their duties. * * * This power includes authority to appoint persons unconnected with the Court to aid judges in the performance of specific judicial duties, as they may arise in the progress of a cause.”[89] The power to appoint auditors by federal courts sitting in equity has been exercised from their very beginning, and here it was held that this power is the same whether the Court sits in law or equity.


Subject to general statutory qualifications for attorneys, the power of the federal courts to admit and disbar attorneys rests on the common law from which it was originally derived. According to Chief Justice Taney, it was well settled by the common law that “it rests exclusively with the Court to determine who is qualified to become one of its officers, as an attorney and counsellor, and for what cause he ought to be removed.” Such power, he made clear, however, “is not an arbitrary and despotic one, to be exercised at the pleasure of the Court, or from passion, prejudice, or personal hostility; but it is the duty of the Court to exercise and regulate it by a sound and just judicial discretion, whereby the rights and independence of the bar may be as scrupulously guarded and maintained by the Court, as the right and dignity of the Court itself.”[90] The Test-Oath Act of July 2, 1862, which purported to exclude former Confederates from the practice of law in the federal courts, was invalidated in Ex parte Garland.[91] In the course of his opinion for the Court, Justice Field discussed generally the power to admit and disbar attorneys. The exercise of such a power, he declared, is judicial power. The attorney is an officer of the Court and though Congress may prescribe qualifications [Pg 528]for the practice of law in the federal courts, it may not do so in such a way as to inflict punishment contrary to the Constitution or to deprive a pardon of the President of its legal effect.[92]

Organization of Courts, Tenure and Compensation of Judges


The Constitution is almost completely silent concerning the organization of the federal judiciary. Although it provides for one Supreme Court, it makes no reference to the size and composition of the Court, the time or place for sitting, or its internal organization save for the reference to the Chief Justice in the impeachment provision of article I, § 3, relating to impeachment of the President. All these matters are therefore confided to Congressional determination. Under the terms of the Judiciary Act of 1789, the Court consisted of a Chief Justice and five Associate Justices. This number was gradually increased until it reached a total of ten judges under the act of March 3, 1863. Due to the exigencies of Reconstruction and the tension existing between Congress and the President the number was reduced to seven as vacancies should occur, by the act of April 16, 1866. The number never actually fell below eight, and on April 10, 1869, with Andrew Johnson out of the White House, Congress restored the number to nine, where it has since remained. There have been proposals at various times for an organization of the Court into sections or divisions. No authoritative judicial expression is available, although Chief Justice Hughes in a letter to Senator Wheeler of March 21, 1937, expressed doubts concerning the validity of such a device and stated that “the Constitution does not appear to authorize two or more Supreme Courts functioning in effect as separate courts.”[93] Congress has also determined the time and place of sessions of the Court, going so far in 1801 as to change its terms so that for fourteen months, between December, 1801 and February, 1803 the Court did not convene.


By article I, § 8, paragraph 9, Congress is expressly declared to have the power to constitute tribunals inferior to the Supreme Court, and the power is repeated in a different formula in article III, § 1, when provision is also made for tenure during good behavior and for a compensation which shall not be diminished. Since 1789 Congress, with repeated judicial acquiescence and concurrence, has interpreted both of these sections as leaving it free to establish inferior courts or not, as it deems fit in the exercise of a boundless discretion. By the Judiciary Act of 1789, Congress constituted thirteen district courts which were to have four sessions annually[94] and three circuit courts which were to consist jointly of the Supreme Court judges and the district judge of such districts which were to meet annually at the time and places designated by the statute.[95] By the Judiciary Act of February 13, 1801, passed in the closing weeks of the Adams Administration, the number of judges of the Supreme Court was to be reduced to five after the next vacancy, the districts were reorganized, and six circuit courts consisting of three judges each and organized independently of the Supreme Court and the district courts were created.[96] Whatever merits this plan of organization possessed were lost in the fierce partisanship of the period, which led the expiring Federalist Administration to appoint Federalists almost exclusively to the new judgeships to the dismay of the Jeffersonians who, upon coming into power, set plans in motion to repeal the act. In a bitter debate the major constitutional issue to emerge centered about the abolition of courts once they were created in the light of the provision for tenure during good behavior. Suffice it to say, the repeal bill was passed and approved by the President on March 8, 1802[97] without any provision for the displaced judges. The validity of the act of 1802 was questioned in Stuart v. Laird,[98] where Justice Paterson in a terse opinion, which hardly touched Charles Lee’s argument that Congress lacked power to abolish or destroy courts and judges, held for the Court that Congress has the power to establish inferior courts from time to time as it may think proper and to transfer a cause from one tribunal to another. In answer to the argument that Supreme Court Justices could not constitutionally sit as circuit judges, he pointed to practice and acquiescence contemporaneous with the Constitution as an interpretation too strong and obstinate to be shaken or controlled.

Abolition of the Commerce Court

Since 1802 Congress has many times exercised its power to constitute inferior courts, but not until 1913 did it again abolish a court. [Pg 530]This was the unfortunately launched Commerce Court from which so much was expected and so little came. Again, as in 1802, there was a constitutional debate on the power of Congress to abolish courts without providing for the displaced judges, but unlike the act of 1802 the act of 1913[99] provided for the redistribution of the Commerce Court judges among the Circuit Courts of Appeals and the transfer of its jurisdiction to the district courts.[100]


The prohibition against the diminution of judicial salaries has presented very little litigation. In 1920 in Evans v. Gore[101] the Court invalidated the application of the Income Tax as applied to a federal judge, over the strong dissent of Justice Holmes, who was joined by Justice Brandeis. This ruling was extended in Miles v. Graham[102] to exempt the salary of a judge of the Court of Claims appointed subsequent to the enactment of the taxing act. Evans v. Gore was disapproved and Miles v. Graham in effect overruled in O’Malley, Collector of Internal Revenue v. Woodrough,[103] where the Court upheld section 22 of the Revenue Act of 1932 (now 26 U.S.C.A. 22 (a)) which extended the application of the Income Tax to salaries of judges taking office after June 6, 1932. Such a tax was regarded neither as an unconstitutional diminution of the compensation of judges nor as an encroachment on the independence of the judiciary.[104] To subject judges who take office after a stipulated date to a nondiscriminatory tax laid generally on an income, said the Court, “is merely to recognize that judges are also citizens, and that their particular function in government does not generate an immunity from sharing with their fellow citizens the material burden of the government whose Constitution and laws they are charged with administering.”[105]

Diminution of Salaries

The Appropriations Act of 1932 reduced “the salaries and retired pay of all judges (except judges whose compensation may not, under the Constitution, be diminished during their continuance in office),” by 8-1/3 per cent if below $10,000, or to $10,000 if above that figure. While this provision presented no questions of its own constitutionality, it did raise the question of what judges’ salaries could be constitutionally reduced. In O’Donoghue v. United States[106] the section was held inapplicable to the salaries of judges of the courts of the District of Columbia on the ground that as to their organization and tenure and compensation, Congress was limited by the provisions of article III. In Williams v. United States,[107] on the other hand, it was ruled that the reduction was applicable to the salaries of the judges of the Court of Claims, that being a legislative court created in pursuance of the power of Congress to pay the debts of the United States and to consent to suits against the United States. As such it is not within the provisions of article III respecting the tenure and compensation of judges.


By virtue of its power “to ordain and establish” courts Congress has occasionally created courts under article III to exercise a specialized jurisdiction. Otherwise these tribunals are like other article III courts in that they exercise “the judicial power of the United States,” and only that power, that their judges must be appointed by the President and the Senate and must hold office during good behavior subject to removal by impeachment only, and that the compensation of their judges cannot be diminished during their continuance in office. One example of such courts was the Commerce Court created by the Mann-Elkins Act of 1910,[108] which was given exclusive jurisdiction of all cases to enforce orders of the Interstate Commerce Commission except those involving money penalties and criminal punishment; of cases brought to enjoin, annul, or set aside orders of the Commission; of cases brought under the act of 1903 to prevent unjust discriminations; and of all mandamus proceedings authorized by the act of 1903. This court actually functioned for less than three years, being abolished in 1913, as was mentioned above.

The Emergency Court of Appeals of 1942

Another court of specialized jurisdiction but created for a limited time only was the Emergency Court of Appeals organized by the Emergency Price Control Act of January 30, 1942.[109] By the terms of the statute this court consisted of three or more judges designated by the Chief Justice from the judges of the United States district courts and circuit courts of appeal. The Chief Justice was authorized to designate one of the judges as chief judge, to designate additional judges from time to time, and to revoke designations. The chief judge in turn was authorized to divide the Court into divisions of three or more members each, with any such division empowered to [Pg 532]render judgment as the judgment of the Court. The Court was vested with jurisdiction and powers of a district court to hear appeals filed within thirty days against denials of protests by the Price Administrator and with exclusive jurisdiction to set aside regulations, orders, or price schedules, in whole or in part, or to remand the proceeding. But no regulation or price schedule could be set aside or enjoined unless the Court was satisfied that it was contrary to law or was arbitrary or capricious. Even then the effectiveness of a restraining order was to be suspended for thirty days and, if appealed to the Supreme Court within thirty days, until its final disposition. Although the act deprived the district courts of the power to enjoin the enforcement of orders and price schedules, it vested them with jurisdiction to enforce the act and orders issued thereunder in actions brought by the Administrator to enjoin violations and to try criminal prosecutions brought by the Attorney General. Since the Emergency Court of Appeals, subject to review by the Supreme Court, was given exclusive jurisdiction to determine the validity of any order issued under the act, it resulted that the district courts were deprived of the power to inquire into the validity of orders involved in civil or criminal proceedings in which they had jurisdiction.[110]

Judicial Review Restrained

In Yakus v. United States[111] the Court held in an opinion by Chief Justice Stone that there is “no principle of law or provision of the Constitution which precludes Congress from making criminal the violation of an administrative regulation, by one who has failed to avail himself of an adequate separate procedure for the adjudication of its validity, or which precludes the practice, in many ways desirable, of splitting the trial for violations of an administrative regulation by committing the determination of the issue of its validity to the agency which created it, and the issue of violation to a court which is given jurisdiction to punish violations. Such a requirement presents no novel constitutional issue.”[112] In a dissent Justice Rutledge took issue with this holding, saying: “It is one thing for Congress to withhold jurisdiction. It is entirely another to confer it and direct that it be exercised in a manner inconsistent with constitutional requirements or, what in some instances may be the same thing, without regard to them. Once it is held that Congress can require the courts criminally to enforce unconstitutional laws or statutes, including regulations, or to do so without regard for their validity, the way will have been found to circumvent the supreme law and, what is more, to make the courts parties to doing so. This Congress cannot [Pg 533]do. There are limits to the judicial power. Congress may impose others. And in some matters Congress or the President has final say under the Constitution. But whenever the judicial power is called into play, it is responsible directly to the fundamental law and no other authority can intervene to force or authorize the judicial body to disregard it. The problem therefore is not solely one of individual right or due process of law. It is equally one of the separation and independence of the powers of government and of the constitutional integrity of the judicial process, more especially in criminal trials.”[113]


Quite distinct from special courts exercising the judicial power of the United States, but at the same time a significant part of the federal judiciary, are the legislative courts, so called because they are created by Congress in pursuance of its general legislative powers. The distinction between constitutional courts and legislative courts was first made in American Insurance Company v. Canter,[114] which involved the question of the admiralty jurisdiction of the territorial court of Florida, the judges of which were limited to a four-year term in office. Said Chief Justice Marshall for the Court: “These courts, then, are not constitutional courts, in which the judicial power conferred by the Constitution on the general government, can be deposited. They are incapable of receiving it. They are legislative courts, created in virtue of the general right of sovereignty which exists in the government, or in virtue of that clause which enables Congress to make all needful rules and regulations, respecting the territory belonging to the United States. The jurisdiction with which they are invested, is not a part of that judicial power which is defined in the 3rd article of the Constitution, but is conferred by Congress, in the execution of those general powers which that body possesses over the territories of the United States.”[115] The Court went on to hold that admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of article III, but that the same limitation does not apply to the territorial courts; for, in legislating for them, “Congress exercises the combined powers of the general, and of a State government.”[116]

Other Legislative Courts

The distinction made in the Canter case has been repeated with elaborations since 1828, receiving its fullest exposition in Ex parte Bakelite Corporation,[117] which contains a review of the history of legislative courts and the cases supporting the power of Congress to create them. In addition to discussing the derivation of power to establish legislative courts, the Bakelite case ruled that such courts “also may be created as special tribunals to examine and determine various matters, arising between the government and others, which from their nature do not require judicial determination and yet are susceptible of it. The mode of determining matters of this class is completely within Congressional control. Congress may reserve to itself the power to decide, may delegate that power to executive officers, or may commit it to judicial tribunals.”[118] Among the matters susceptible of judicial determination but not requiring it are claims against the States,[119] the disposal of the public lands and claims arising therefrom,[120] questions concerning membership in the Indian tribes,[121] and questions arising out of the administration of the customs and internal revenue laws.[122] For the determination of these matters Congress has created the Court of Claims, the Court of Private Land Claims, the Choctaw and Chickasaw Citizenship Court, the Court of Customs, the Court of Customs and Patent Appeals, and the Tax Court of the United States (formerly the Board of Tax Appeals).

Power of Congress Over Legislative Courts

In creating legislative courts Congress is not limited by the restrictions imposed in article III concerning tenure during good behavior and the prohibition against limitation of salaries. Congress may limit tenure to a term of years, as it has done in acts creating territorial courts and the Tax Court of the United States, and it may subject the judges of legislative courts to removal by the President.[123] In McAllister v. United States,[124] the removal of a territorial judge was sustained on the basis of the principle that: “The whole subject of the organization of territorial courts, the tenure by which the judges of such courts shall hold their offices, the salary they receive and the manner in which they may be removed or suspended from office, was left, by the Constitution, with Congress under its plenary power over the Territories of the United States.”[125] Long afterwards the Court held [Pg 535]in Williams v. United States[126] that the reduction of the salaries of the judges of the Court of Claims, and inferentially of judges of other legislative courts, to $10,000 per year by the Appropriation Act of June 30, 1932, was constitutional. In so doing the Court rejected dicta in earlier cases which classified the Court of Claims as a constitutional court and silently reversed Miles v. Graham,[127] which had held that Congress could not include the salary of a judge of the Court of Claims in his taxable income.

Status of the Court of Claims

It follows, too, that in creating legislative courts, Congress can vest in them nonjudicial functions of a legislative or advisory nature and deprive their judgments of finality. Thus in Gordon v. United States[128] there was no objection to the power of the Secretary of the Treasury and Congress to revise or suspend the early judgments of the Court of Claims. Likewise in United States v. Ferreira[129] the Court sustained the act conferring powers on the Florida territorial court to examine claims arising under the Spanish treaty and to report his decisions and the evidence on which they were based to the Secretary of the Treasury for subsequent action. “A power of this description,” it was said, “may constitutionally be conferred on a Secretary as well as on a commissioner. But [it] is not judicial in either case, in the sense in which judicial power is granted by the Constitution to the courts of the United States.”

A Judicial Paradox

Chief Justice Taney’s view in the Gordon case that the judgments of legislative courts could never be reviewed by the Supreme Court was tacitly rejected in De Groot v. United States,[130] when the Court took jurisdiction from a final judgment of the Court of Claims. Since the decision of this case in 1867 the authority of the Supreme Court to exercise appellate jurisdiction over legislative courts has turned not upon the nature or status of such courts, but rather upon the nature of the proceeding before the lower Court and the finality of its judgment. Consequently in proceedings before a legislative court which are judicial in nature and admit of a final judgment the Supreme Court may be vested with appellate jurisdiction. Thus there arises the workable anomaly that though the legislative courts can exercise no part of the judicial power of the United States and the Supreme Court can exercise only that power, the latter nonetheless can review judgments of the former. However, it should be emphasized that the Supreme Court will neither review the administrative proceedings of legislative courts nor entertain appeals from the advisory or interlocutory decrees of such courts.[131]


Through a long course of decisions the courts of the District of Columbia were regarded as legislative courts upon which Congress could impose nonjudicial functions. In Butterworth v. United States ex rel. Hoe,[132] the Court sustained an act of Congress which conferred revisionary powers upon the Supreme Court of the District in patent appeals and made its decisions binding only upon the Commissioner of Patents. Similarly, the Court later sustained the authority of Congress to vest revisionary powers in the same court over rates fixed by a public utilities commission.[133] Not long after this the same rule was applied to the revisionary power of the District Supreme Court over orders of the Federal Radio Commission.[134] These rulings were based on the assumption, express or implied, that the courts of the District were legislative courts, created by Congress in pursuance of its plenary power to govern the District of Columbia. In an obiter dictum in Ex parte Bakelite Corporation,[135] while reviewing the history and analyzing the nature of legislative courts, the Court stated that the courts of the District were legislative courts.

In 1933, nevertheless, the Court, abandoning all previous dicta on the subject, found the courts of the District of Columbia to be constitutional courts exercising judicial power of the United States,[136] with the result of shouldering the task of reconciling the performance of nonjudicial functions by such courts with the rule that constitutional courts can exercise only the judicial power of the United States. This task was easily accomplished by the argument that in establishing courts for the District, Congress is performing dual functions in pursuance of two distinct powers, the power to constitute tribunals inferior to the Supreme Court, and its plenary and exclusive power to legislate for the District of Columbia. However, article III, § 1, limits this latter power with respect to tenure and compensation, but not with regard to vesting legislative and administrative powers in such courts. Subject to the guarantees of personal liberty in the Constitution, “Congress has as much power to vest courts of the District with a variety of jurisdiction and powers as a State legislature has in conferring jurisdiction on its courts.”[137] The effect of the O’Donoghue decision is to confer a dual status on the courts of the District of Columbia. As regards their organization, and the tenure and compensation of their judges they are constitutional courts, as regards jurisdiction and powers they are simultaneously legislative and constitutional courts, and as such can be vested with nonjudicial powers while sharing the judicial power of the United States.[138]

Jurisdiction: Cases and Controversies

Section 2. The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.


By the terms of the foregoing section the judicial power extends to nine classes of cases and controversies, which fall into two general groups. In the words of Chief Justice Marshall in Cohens v. Virginia:[139] “In the first, their jurisdiction depends on the character of the cause, whoever may be the parties. This class comprehends ‘all cases in law and equity arising under this constitution, the laws of the United States, and treaties made, or which shall be made, under their authority.’ This cause extends the jurisdiction of the Court to all the cases described, without making in its terms any exception whatever, and without any regard to the condition of the party. If there be any exception, it is to be implied, against the express words of the article. In the second class, the jurisdiction depends entirely on the character of the parties. In this are comprehended ‘controversies between two or more States, between a State and citizens of another State,’ and ‘between a State and foreign States, citizens or subjects.’ If these be the parties, it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the courts of the Union.”[140]

Judicial power is “the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.”[141] The meaning attached to the terms “cases” and “controversies” determines therefore the extent of the judicial power, as well as the capacity of the federal courts to receive jurisdiction. As Chief Justice Marshall declared in Osborn v. Bank of the United States, judicial power is capable of acting only [Pg 539]when the subject is submitted in a case, and a case arises only when a party asserts his rights “in a form prescribed by law.”[142] Many years later Justice Field, relying upon Chisholm v. Georgia,[143] and Tucker’s edition of Blackstone, amended this definition by holding that “controversies,” to the extent that they differ from “cases,” include only suits of a civil nature. He continued: “By cases and controversies are intended the claims of litigants brought before the courts for determination by such regular proceedings as are established by law or custom for the protection or enforcement of rights, or the prevention, redress, or punishment of wrongs. Whenever the claim of a party under the Constitution, laws, or treaties of the United States takes such a form that the judicial power is capable of acting upon it, then it has become a case. The term implies the existence of present or possible adverse parties whose contentions are submitted to the Court for adjudication.”[144] The definitions propounded by Chief Justice Marshall and Justice Field were quoted with approval in Muskrat v. United States,[145] where the Court held that the exercise of judicial power is limited to cases and controversies and emphasized “adverse litigants,” “adverse interests,” an “actual controversy,” and conclusiveness or finality of judgment as essential elements of a case.[146]


The necessity of adverse litigants with real interests has been stressed in numerous cases,[147] and has been particularly emphasized in suits to contest the validity of a federal or State statute. A few illustrations will suffice to describe the practical operation of these limitations. In Chicago and Grand Trunk Railroad Co. v. Wellman,[148] which originated in the courts of Michigan on an agreed statement of facts between friendly parties desiring to contest a rate-making statute, the Supreme Court ruled there was no case or controversy. In the course of its opinion, which held that the courts have no “immediate and general supervision” of the constitutionality of legislative enactments, the Court said: “Whenever, in pursuance of an honest and actual antagonistic assertion of rights by one individual against another, there is presented a question involving the validity of any act of any legislature, State or Federal, and the decision necessarily rests on the competency of the legislature to so enact, the court [Pg 540]must, in the exercise of its solemn duties, determine whether the act be constitutional or not; but such an exercise of power is the ultimate and supreme function of courts. It is legitimate only in the last resort, and as a necessity in the determination of real, earnest and vital controversy between individuals. It never was the thought that, by means of a friendly suit, a party beaten in the legislature could transfer to the courts an inquiry as to the constitutionality of the legislative act.”[149]

In applying the rule requiring adverse litigants to present an honest and actual antagonistic assertion of rights, the Court invalidated an act of Congress which authorized certain Indians to bring suits against the United States to test the constitutionality of the Indian allotment acts, on the ground that such a proceeding was not a case or controversy in that the United States had no interest adverse to the claimants.[150] The Court has also held that in contesting the validity of a statute, the issue must be raised by one adversely affected and not a stranger to the operation of the statute,[151] and that the interest must be of a personal as contrasted with an official interest.[152] Hence a county court cannot contest the validity of a statute in the interest of third parties,[153] nor can a county auditor contest the validity of a statute even though he is charged with its enforcement,[154] nor can directors of an irrigation district occupy a position antagonistic to it.[155] It is a well settled rule that: “The Court will not pass upon the constitutionality of legislation * * *, or upon the complaint of one who fails to show that he is injured by its operation, * * *”[156] It is equally well established as a corollary that, “litigants may challenge the constitutionality of a statute only insofar as it affects them.”[157]


It must be noted, however, that adversity is a relative element which the courts may or may not discover. Thus in Pollock v. Farmers’ Loan and Trust Co.,[158] the Supreme Court sustained the jurisdiction of a district court which had enjoined the company from paying an income tax even though the suit was brought by a stockholder against the company, thereby circumventing section 3224 of the Revised Statutes, which forbids the maintenance in any court of a suit “for the purpose of restraining the collection of any tax.”[159] Subsequently the Court has found adversity of parties in a suit brought by a stockholder to restrain a title company from investing its funds in farm loan bonds issued by the federal land banks,[160] and in a suit brought by certain preferred stockholders against the Alabama Power Company and the TVA to enjoin the performance of contracts between the company and the authority and a subsidiary, the Electric Home and Farm Authority, on the ground that the act creating these agencies was unconstitutional.[161] The ability to find adversity in narrow crevices of casual disagreement is well illustrated by Carter v. Carter Coal Co.,[162] where the President of the company brought suit against the company and its officials, among whom was Carter’s father who was Vice President of the Company.[163] The Court entertained the suit and decided the case on its merits.


Equally important as an essential element of a case is the concept of real or substantial interests. As a general rule the interest of taxpayers in the general funds of the federal Treasury is insufficient to give them a standing in court to contest the expenditure of public funds on the ground that this interest “is shared with millions of others; is comparatively minute and indeterminable; and the effect upon future taxation, of any payment out of the funds, so remote, fluctuating and uncertain, that no basis is afforded for an appeal to the preventive powers of a court of equity.”[164] Likewise, the Court has held that the general interest of a citizen in having the government administered by law does not give him a standing to contest the validity of governmental action.[165] Nor can a member of the bar of the Supreme Court challenge the validity of an appointment to the Court since his “is merely a general interest common to all members of the public.”[166] Similarly an electric power company has been held not to have a sufficient interest to maintain an injunction suit to restrain the making of federal loans and grants to municipalities for the construction or purchase of electric power distribution plants on the ground that the “lender owes the sufferer no enforcible duty to refrain from making the unauthorized loan; and the borrower owes him no obligation to refrain from using the proceeds in any lawful way the borrower may choose.”[167] Recent cases, involving the issue of religion in the schools, reach somewhat divergent results. In Illinois ex rel. McCollum v. Board of Education,[168] the Court held that a litigant had the requisite standing to bring a mandamus suit challenging, on the basis of her interests as a resident and taxpayer of the school district and the parent of a child required by law to attend the school or one meeting the State’s educational requirements, the validity of a religious education program involving the use of public school rooms one half hour each week. But in Doremus v. Board of Education,[169] decided early in 1952, the Court declined jurisdiction in a case challenging the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament. Appellants’ interest as taxpayers was found to be insufficient to sustain the proceeding.

Substantial Interest in Suits by States

These principles have been applied in a number of cases to which a State was one of the parties and in suits between States. One of the most important of these is State of Georgia v. Stanton,[170] which was an original suit in equity brought by the State of Georgia against the Secretary of War and others to enjoin the enforcement of the Reconstruction Acts. The State’s counsel contended that enforcement of the acts brought about “an immediate paralysis of all the authority and power of the State government by military force; * * * [which was divesting the State] of her legally and constitutionally established and guaranteed existence as a body politic and a member of the Union.” The Supreme Court dismissed the suit for want of jurisdiction, holding that for a case to be presented for the exercise of the judicial power, the rights threatened “must be rights of persons or property, not merely political rights, which do not belong to the jurisdiction of a court, either in law or equity.”[171] The rule of the Stanton case was applied and elaborated in Massachusetts v. Mellon,[172] where the State in its own behalf and as parens patriae sought to enjoin the administration of the Maternity Act[173] which, it was alleged, was an unconstitutional invasion of the reserved rights of the State and an impairment of its sovereignty. The suit was held not justiciable on the ground that a State cannot maintain a suit either to protect its political rights or as parens patriae to protect citizens of the United States against the operation of a federal law. Concerning the right of a State to sue in its own behalf to protect its political rights, the Court said: “In that aspect of the case we are called upon to adjudicate, not rights of person or property, not rights of dominion over physical domain, not quasi sovereign rights actually invaded or threatened, but abstract questions of political power, of sovereignty, of government.”[174] However, these holdings do not affect the right of a State as parens patriae to intervene in behalf of the economic welfare of its citizens against discriminatory rates set by an alleged illegal combination of carriers,[175] or the right of a State to assert its quasi sovereign rights over wild life within its domain,[176] or to protect its citizens against the discharge of noxious gases by an industrial plant in an adjacent State.[177]


Closely related to the requirements of adverse parties and substantial interests is that of a real issue as contrasted with speculative, abstract, hypothetical, or moot cases. As put by Chief Justice Stone in Alabama State Federation of Labor v. McAdory,[178] it has long been the Court’s “considered practice not to decide abstract, hypothetical or contingent questions,” or as Justice Holmes said years earlier by way of dictum, a party cannot maintain a suit “for a mere declaration in the air.”[179] Texas v. Interstate Commerce Commission,[180] presents a good illustration of an abstract question. Here, Texas attempted to enjoin the enforcement of the Transportation Act of 1920 on the ground that it invaded the reserved rights of the State. The Court dismissed the complaint as presenting no case or controversy, declaring: “It is only where rights, in themselves appropriate subjects of judicial cognizance, are being, or about to be, affected prejudicially by the application or enforcement of a statute that its validity may be called in question by a suitor and determined by an exertion of the judicial power.”[181] Again in Ashwander v. Tennessee Valley Authority,[182] the Court refused to decide any issue save that of the validity of the contracts between the Authority and the Company because, “The pronouncements, policies and program of the Tennessee Valley Authority and its directors, their motives and desires, did not give rise to a justiciable controversy save as they had fruition in action of a definite and concrete character constituting an actual or threatened interference with the rights of the persons complaining.” Chief Justice Hughes cited New York v. Illinois,[183] where the Court dismissed a suit as presenting abstract questions “as to the possible effect of the diversion of water from Lake Michigan upon hypothetical water power developments in the indefinite future.”[184] He also cited among other cases Arizona v. California,[185] where it was held that claims based merely upon assumed potential invasions of rights were not enough to warrant judicial intervention.

The concepts of real interests and abstract questions again appear prominently in United Public Workers of America v. Mitchell.[186] Here a number of government employees sued to enjoin the Civil Service Commission from enforcing the prohibitions of the Hatch Act against activity in political management or campaigns, and to obtain a declaratory judgment that the act was invalid. Except for one of the employees none had violated the act, but they did state that they desired to engage in the forbidden political activities. The Court held that as to all the parties save the one who had violated the act there was no justiciable controversy. “Concrete legal issues, presented in actual cases, not abstractions” were declared to be requisite. The generality of their objection was regarded as really an attack on the political expediency of the Hatch Act.[187]

From the rule that courts will not render advisory opinions or write essays in political theory on speculative issues, it follows logically that they will not determine moot cases or suits arranged by collusion between parties who have no opposing interests. A moot case has been defined as “one which seeks to get a judgment on a pretended controversy, when in reality there is none, or a decision in advance about a right before it has been actually asserted and contested, or a judgment upon some matter which, when rendered, for any reason, cannot have any practical legal effect upon a then existing controversy.”[188] Cases may become moot because of a change in the law, or the status of the litigants, or because of some act of the parties which dissolves the controversy.[189] Just as courts will not speculate an hypothetical question, so they will not analyze dead issues.[190] The duty of every federal court, said Justice Gray, “is to decide actual controversies by a judgment which can be carried into effect, and not give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter at issue in the case before it.”[191]


The rule has been long established that the courts have no general supervisory power over the executive or administrative branches of government.[192] In Decatur v. Paulding,[193] which involved an attempt by mandamus to compel the Secretary of the Navy to pay a pension, the Supreme Court in sustaining denial of relief stated: “The interference of the courts with the performance of the ordinary duties of the executive departments of the government, would be productive of nothing but mischief; and we are quite satisfied, that such a power was never intended to be given to them.”[194] It follows, therefore, that mandamus will lie against an executive official only to compel the performance of a ministerial duty which admits of no discretion as contrasted with executive or political duties which admit of discretion.[195] It follows, too, that an injunction will not lie against the President,[196] or against the head of an executive department to control the exercise of executive discretion.[197] These principles are well illustrated by Georgia v. Stanton,[198] Mississippi v. Johnson,[199] and Kendall v. United States ex rel. Stokes.[200]

Origin of the Concept

The concept of “political question” is an old one. As early as Marbury v. Madison,[201] Chief Justice Marshall stated: “The province of the court is, solely, to decide on the rights of individuals, not to inquire how the executive, or executive officers, perform duties in which they have a discretion. Questions in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court.” The concept, as distinguished from that of interference with executive functions, was first elaborated in Luther v. Borden,[202] which involved the meaning of “a republican form” of government and the question of the lawful government of Rhode Island among two competing groups purporting to act as the lawful authority. “It is the province of a court to expound the law, not to make it,” declared Chief Justice Taney. “And certainly it is no part of the judicial functions of any court of the United States to prescribe the qualification of voters in a State, * * *; nor has it the right to determine what political privileges the citizens of a State are entitled to, unless there is an established constitution or law to [Pg 547]govern its decision.”[203] The Court went on to hold that such matters as the guaranty to a State of a republican form of government and of protection against invasion and domestic violence are political questions committed to Congress and the President whose decisions are binding upon the courts.[204]

Exemplifications of the Doctrine

From this case and later applications of it, a political question may be defined as a question relating to the possession of political power, of sovereignty, of government, the determination of which is vested in Congress and the President whose decisions are conclusive upon the courts. The more common classifications[205] of cases involving political questions are: (1) those which raise the issue of what proof is required that a statute has been enacted,[206] or a constitutional amendment ratified;[207] (2) questions arising out of the conduct of foreign relations;[208] (3) the termination of wars,[209] or rebellions;[210] the questions of what constitutes a republican form of government,[211] and the right of a state to protection against invasion or domestic violence;[212] questions arising out of political actions of States in determining the mode of choosing presidential electors,[213] State officials,[214] and reapportionment of districts for Congressional representation;[215] and suits brought by States to test their political and so-called sovereign rights.[216] The leading case on the evidence required to prove the enactment of a statute is Field v. Clark,[217] where it was held that the enactment of a statute is conclusively proved by the enrolled act signed by the speaker of the House of Representatives and the President of the Senate, and the Court will not look beyond these formalities of record by examining the journals of the two houses of Congress or other records. Similarly, the Court has held that the efficacy of the ratification of a proposed constitutional amendment in the light of previous rejection or subsequent attempted withdrawal is political in nature, pertaining to the political departments, with the ultimate authority in Congress by virtue of its control over the promulgation of the adoption of amendments.[218] Simultaneously, the Court ruled that the question of the lapse of a reasonable length of time between proposal and ratification is for Congress to determine and not the Court.[219]

Recent Cases

A few cases will suffice to illustrate the application of the concept of political questions since 1938. In Colegrove v. Green,[220] a declaratory judgment was sought to have the division of Illinois into Congressional districts declared invalid as a violation of the equal protection of the laws. Justice Frankfurter in announcing the judgment of the Court, in an opinion in which Justices Reed and Burton joined, was of the opinion that dismissal of the suit was required both by the decision in Wood v. Broom,[221] that there is no federal requirement that Congressional districts shall contain as nearly as practicable an equal number of inhabitants, and because the question was not justiciable. Justice Rutledge thought that Smiley v. Holm[222] indicated that the question was justiciable but concurred in the result on the ground that the case was one in which the courts should decline to exercise jurisdiction.[223] Justice Black in a dissent supported by Justices Douglas and Murphy thought that the case was justiciable and would have invalidated the reapportionment, leaving the State free to elect all of its representatives from the State at large.[224] In MacDougall v. Green,[225] however, the Court seemed to regard as justiciable the question of the validity of the provision of the Illinois Election Code requiring that a petition for the nomination of candidates of a new political party be signed by 25,000 voters including at least 200 from each of at least 50 of the States’ 102 counties, for it went on to sustain the provision in a brief per curiam opinion. In Ludecke v. Watkins,[226] the Court held, as it had earlier, that the determination of the cessation of a state of war is a question for the political branch of the Government and not for the courts. Nevertheless, the Court actually found a state of war to exist between the United States and Germany after the end of hostilities, and ruled that an enemy alien is not entitled to judicial review in a deportation proceeding. Very recently in South v. Peters,[227] the Court refused to pass upon the validity of the county unit scheme used in Georgia for the nomination of candidates in primary elections.


Perhaps no portion of Constitutional Law pertaining to the judiciary has evoked such unanimity as the rule that the federal courts will not render advisory opinions. In 1793 the Supreme Court refused to grant the request of President Washington and Secretary of State Jefferson to construe the treaties and laws of the United States pertaining to questions of international law arising out of the wars of the French Revolution. After convening the Court which considered the request, Chief Justice Jay replied to President Washington concerning the functions of the three departments of government: “These being in certain respects checks upon each other, and our being Judges of a Court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to, especially as the power given by the Constitution to the President, of calling on the heads of departments for opinions, seems to have been purposely as well as expressly united to the Executive departments.”[228] Since 1793 the Court has frequently reiterated the early view that the federal courts organized under article III cannot render advisory opinions or that the rendition of advisory opinions is not a part of the judicial power of the United States.[229]

Even in the absence of this early precedent, the rule that constitutional courts will render no advisory opinions would have logically emerged from the rule subsequently developed, that constitutional courts can only decide cases and controversies in which an essential element is a final and binding judgment on the parties. As stated by Justice Jackson, when the Court refused to review an order of the Civil Aeronautics Board, which in effect was a mere recommendation to the President for his final action, “To revise or review an administrative decision which has only the force of a recommendation to the President would be to render an advisory opinion in its most obnoxious form—advice that the President has not asked, tendered at the demand of a private litigant, on a subject concededly within the President’s exclusive, ultimate control. This Court early and wisely determined that it would not give advisory opinions even when asked by the Chief Executive. It has also been the firm and unvarying practice of Constitutional Courts to render no judgments not binding and conclusive on the parties and none that are subject to later review or alteration by administrative action.”[230] The early refusal of the Court to render advisory opinions has discouraged direct requests for advice so that the advisory opinion has appeared only collaterally in cases where there was a lack of adverse parties,[231] or where the judgment of the Court was subject to later review or action by the executive or legislative branches of government,[232] or where the issues involved were abstract or contingent.[233]


The rigid emphasis placed upon such elements of the judicial power as finality of judgment and an award of execution in United States v. Ferreira,[234] Gordon v. United States[235], and Liberty Warehouse v. Grannis,[236] coupled with the equally rigid emphasis upon adverse parties and real interests as essential elements of a case or controversy in Muskrat v. United States,[237] created serious doubts concerning the validity of a proposed federal declaratory judgment act. These were dispelled to some extent by Fidelity National Bank v. Swope,[238] which held that an award of execution is not an essential part of every judgment and contained general statements in opposition to the principles of the Grannis and Willing cases. Then in 1933 the Supreme Court entertained an appeal from a declaratory judgment rendered by the Tennessee Courts in Nashville, C. & St. L.R. Co. v. Wallace,[239] and in doing so declared that the Constitution does not require that a case or controversy be presented by traditional forms of procedure, involving only traditional remedies, and that article III defined and limited judicial power not the particular method by which that power may be invoked or exercised. The Federal Declaratory Judgments Act of 1934 was in due course upheld in Aetna Life Insurance Co. v. Haworth,[240] as a valid exercise of Congressional power over the practice and procedure of federal courts which includes the power to create and improve as well as to abolish or restrict.

The Declaratory Judgment Act of 1934

The act of 1934 was carefully drawn, and provided that: “In cases of actual controversy the courts of the United States shall have power * * * to declare rights and other legal relations of any interested party petitioning for such declaration, whether or not further relief is or could be prayed, and such declaration shall have the [Pg 552]force and effect of a final judgment or decree and be reviewable as such.” The other two sections provided for further relief whenever necessary and proper and for jury trials of matters of fact.[241] In the first case involving private parties exclusively to arise under the act, Aetna Life Insurance Co. v. Haworth,[242] the Court held that a declaration should have been issued by the district court, although it reiterated with the usual emphasis the necessity of adverse parties, a justiciable controversy and specific relief. In the Ashwander case it approved the refusal of the lower Court to issue a declaration generally on the constitutionality of the Tennessee Valley Authority, because the act of 1934 applied only to “cases of actual controversy.” In the same case the Court itself refused to pass upon the navigability of the New and Kanawha rivers and the authority of the Federal Power Commission even at the request of the United States, on the ground that the bill did no more than state a difference of opinion between the United States and West Virginia to which the judicial power did not extend.[243] Similarly, in Electric Bond & Share Co. v. Securities and Exchange Commission,[244] the Court refused to decide any constitutional issues arising out of the Public Utility Holding Company Act of 1935 except the registration provisions because the cross bill in which the company had asked for a declaration that the whole act was unconstitutional was regarded as presenting a variety of hypothetical questions that might never become real.

The “Case” or “Controversy” Test in Declaratory Judgment Proceedings

The insistence of the Court upon the rule that “the requirements for a justiciable case or controversy are no less strict in a declaratory judgment proceeding than in any other type of suit,”[245] and the fact that many actions for a declaration of rights have involved the validity of legislation, where the Court is even more insistent upon the essentials of a case, have done much to limit the use of the declaratory judgment. There are, nevertheless, a number of cases, some of which involved constitutional issues, in which a declaratory judgment has been rendered. Among these are Currin v. Wallace,[246] where tobacco warehousemen and auctioneers contested the validity of the Tobacco Inspection Act under which the Secretary of Agriculture had already designated a tobacco market for inspection and grading; Perkins v. Elg,[247] where a natural-born citizen of naturalized parents who left the [Pg 553]country during her minority sought to establish her status as a citizen; Maryland Casualty Co. v. Pacific Coal and Oil Co.,[248] where a liability insurer sought to establish his lack of liability in an automobile collision case; and Aetna Life Insurance Co. v. Haworth,[249] where a declaration was sought under the disability benefit clauses of an insurance policy. As stated by Justice Douglas for the Court in the Maryland Casualty case: “The difference between an abstract question and a ‘controversy’ contemplated by the Declaratory Judgment Act is necessarily one of degree, and it would be difficult, if it would be possible, to fashion a precise test for determining in every case whether there is such a controversy. Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”[250] It remains, therefore, for the courts to determine in each case the degree of controversy necessary to establish a case for purposes of jurisdiction. Even, then, however, the Court is under no compulsion to exercise its jurisdiction.[251]

Cases Arising Under the Constitution, Laws and Treaties of the United States


Cases arising under the Constitution are cases which require an interpretation of the Constitution for their correct decision.[252] They arise when a litigant claims an actual or threatened invasion of his constitutional rights by the enforcement of some act of public authority, usually an act of Congress or of a State legislature, and asks for judicial relief. The clause furnishes the textual basis for the fountain-head of American Constitutional Law, in the strict sense of the term, which fountain-head is Judicial Review, or the power and duty of the courts to pass upon the constitutional validity of legislative acts which they are called upon to recognize and enforce in cases [Pg 554]coming before them, and to declare void and refuse enforcement to such as do not accord with their own interpretation of the Constitution.


The supremacy clause clearly recognizes judicial review of State legislative acts in relation not only to the Constitution, but also in relation to acts of Congress which are “in pursuance of the Constitution,” and in relation to “treaties made or which shall be made under the authority of the United States.” These constitute “the supreme law of the land,” and “the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” This provision was originally implemented by the famous twenty-fifth section of the Judiciary Act of 1789 which provided that final judgments or decrees of the highest courts of law or equity in the States in which a decision could be had, “where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn in question the construction of any clause of the Constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error, * * *”[253]


A quarter of a century after its enactment the validity of this section was challenged on States’ Rights premises in Martin v. Hunter’s Lessee,[254] and seven years after that in Cohens v. Virginia.[255] The States’ Rights argument was substantially the same in both cases. It amounted to the contention that while the courts of Virginia were constitutionally obliged to prefer “the supreme law of the land” as defined in the supremacy clause over conflicting State laws it was only by their own interpretation of the said supreme law that they, as the courts of a sovereign State, were bound. Furthermore, it was contended that cases did not “arise” under the Constitution unless they were brought in the first instance by some one claiming such a right, from which it followed that “the judicial power of the United States” did not “extend” to such cases unless they were brought in the first instance in the courts of the United States. In answer to these arguments Chief Justice Marshall declared that: “A case in [Pg 555]law or equity consists of the right of the one party, as well as of the other, and may truly be said to arise under the Constitution or a law of the United States, whenever its correct decision depends upon the construction of either.”[256] Passing then to broader considerations, he continued: “Let the nature and objects of our Union be considered; let the great fundamental principles, on which the fabric stands, be examined; and we think, the result must be, that there is nothing so extravagantly absurd, in giving to the Court of the nation the power of revising the decisions of local tribunals, on questions which affect the nation, as to require that words which import this power should be restricted by a forced construction.”[257]


Judicial review of acts of Congress is not provided for in the Constitution in such explicit terms as is judicial review of State legislation, but it is nevertheless fairly evident that its existence is assumed. In the first place, the term “cases arising under the Constitution” is just as valid a textual basis for the one type of constitutional case as for the other; and, in the second place, it is clearly indicated that acts of Congress are not “supreme law of the land” unless they are “in pursuance of the Constitution,” thus evoking a question which must be resolved in the first instance by State judges, when State legislation coming before them for enforcement is challenged in relation to “the supreme law of the land.” Furthermore, most of the leading members of the Federal Convention are on record contemporaneously, though not always in the Convention itself, as accepting the idea.[258]


The argument for judicial review of acts of Congress was first elaborated in full by Alexander Hamilton in the Seventy-eighth Number of The Federalist while the adoption of the Constitution was pending. Said Hamilton: “The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their [legislative] agents.”[259] It was also set forth as something commonly accepted by Justice Iredell in 1798 in Calder v. Bull[260] in the following words: “If any act of Congress, or of the Legislature of a state, violates those constitutional provisions, it is unquestionably void; though, I admit, that as the authority to declare it void is of a delicate and awful nature, the Court will never resort to that authority, but in a clear and urgent case.” And between these two formulations of the doctrine, the membership of the Supreme Court had given it their sanction first individually, then as a body. In Hayburn’s Case,[261] the Justices while on circuit court duty refused to administer the Invalid Pensions Act,[262] which authorized the circuit courts to dispose of pension applications subject to review by the Secretary of War and Congress on the ground that the federal courts could be assigned only those functions such as are properly judicial and to be performed in a judicial manner. In Hylton v. United States,[263] a made case in which Congress appropriated money to pay counsel on both sides of the argument, the Court passed on the constitutionality of the carriage tax and sustained it as valid, and in so doing tacitly assumed that it had the power to review Congressional acts.


All the above developments were, however, only preparatory. Judicial review of acts of Congress was made Constitutional Law, and thereby the cornerstone of American constitutionalism, by the decision of the Supreme Court, speaking through Chief Justice Marshall in the famous case of Marbury v. Madison[264] decided in February, 1803. The facts of the case briefly stated are that Marbury had been appointed a justice of the peace in the District of Columbia by John Adams almost at the close of his administration, and John Marshall who was serving simultaneously as Secretary of State failed to deliver to Marbury his commission which had been signed before the new administration had begun. One of the first acts of Jefferson was his instruction to Secretary of State Madison to withhold commissions to office which remained undelivered. Thereupon Marbury sought to compel Madison to deliver the commission by seeking a writ of mandamus in the Supreme Court in the exercise of its original jurisdiction and in pursuance of section 13 of the Judiciary Act of 1789[265] which prescribed the original jurisdiction of the Court and authorized it to issue writs of mandamus “in cases warranted by the principles and usages of law, to any courts appointed, or persons holding office, under the authority of the United States.”

Marshall’s Argument

In the portion of his opinion dealing with judicial review Marshall began his argument with the assumption that “the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness * * *” and, once established, these principles are fundamental. Second, the Government of the United States is limited in its powers by a written Constitution. The Constitution either “controls any legislative act repugnant to it; or, * * * the legislature may alter the Constitution by an ordinary act.” But the Constitution is paramount law and written as such. “It is emphatically the province and duty of the judicial department to say what the law is. * * * If two laws conflict with each other, the courts must decide on the operation of each. * * * If, then, the courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” To declare otherwise, the Chief Justice concluded, would be subversive of the very foundation of all written constitutions, would force the judges to close their eyes to the Constitution, and would make the judicial oath “a solemn mockery.”[266] The Court must therefore look into some portions of the Constitution, and if they can open it at all, what part of it are they forbidden to read or obey? In conclusion the Chief Justice declared that the Constitution is mentioned [Pg 560]first in the supremacy clause and that “the particular phraseology of the Constitution * * * confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the Constitution is void; and that courts, as well as other departments, [of government] are bound by that instrument.”[267]

Importance of Marbury v. Madison

The decision in Marbury v. Madison has never been disturbed, although it has often been criticized. Nor was its contemporary effect confined to the national field. From that time on judicial review by State courts of local legislation in relation to the local constitutions made rapid progress and was securely established in all States by 1850 under the influence not only of Marbury v. Madison, but also of early principles of judicial review established in the circuit courts of the United States.[268]


Because judicial review is an outgrowth of the fiction that courts only declare what the law is in specific cases,[269] and are without will or discretion,[270] its exercise is surrounded by the inherent limitations of the judicial process and notably the necessity of a case or controversy between adverse litigants with a standing in court to present the issue of unconstitutionality in which they are directly interested. The requisites to a case or controversy have been treated more extensively above, but it may be noted that the Supreme Court has repeatedly emphasized the necessity of “an honest and actual antagonistic assertion of rights by one individual against another,”[271] and its lack of power to supervise legislative functions in friendly proceedings, moot cases, or cases which present abstract issues.[272]

The Doctrine of “Strict Necessity”

But even when a case involving a constitutional issue is presented, the Court has repeatedly stated that it will decide constitutional questions only if strict necessity requires it to do so. Hence constitutional issues will not be decided in broader terms than are required by the precise state of facts to which the ruling is to be applied; nor if the record presents some other ground upon which to decide the case; nor at the instance of one who has availed himself of the benefit of a statute or who fails to show he is injured by its operation; nor if a construction of the statute is fairly possible by which the question may be fairly avoided.[273] Speaking of the policy of avoiding the decision of constitutional issues except when necessary Justice Rutledge, speaking for the Court, declared in 1947: “The policy’s ultimate foundations, some if not all of which also sustain the jurisdictional limitation, lie in all that goes to make up the unique place and character, in our scheme, of judicial review of governmental action for constitutionality. They are found in the delicacy of that function, particularly in view of possible consequences for others stemming also from constitutional roots; the comparative finality of those consequences; the consideration due to the judgment of other repositories of constitutional power concerning the scope of their authority; the necessity, if government is to function constitutionally, for each to keep within its power, including the courts; the inherent limitations of the judicial process, arising especially from its largely negative character and limited resources of enforcement; withal in the paramount importance of constitutional adjudication in our system.”[274]

The Doctrine of Political Questions

A third limitation to the exercise of judicial review is the rule, partly inherent in the judicial process, but also partly a precautionary rule adopted by the Court in order to avoid clashes with the “political branches,” is that the federal courts will not decide “political questions.”[275]

The “Reasonable Doubt” Doctrine

A fourth rule, of a precautionary nature, is that no act of legislation will be declared void except in a very clear case, or unless the act is unconstitutional beyond all reasonable doubt.[276] Sometimes this rule is expressed in another way, in the formula that an act of Congress or a State legislature is presumed to be constitutional until proved otherwise “beyond all reasonable doubt.”[277] In operation this rule is subject to two limitations which seriously impair its efficacy. The first is that the doubts which are effective are the doubts of the majority only. If five Justices of learning and attachment to the Constitution are convinced that the statute is invalid and four others of equal learning and attachment to the Constitution are convinced that it is valid or are uncertain that it is invalid, the convictions of the five prevail over the convictions or doubts of the four, and vice versa. Second, the Court has made exceptions to this rule in certain categories of cases. At one time statutes interfering with freedom of contract were presumed to be unconstitutional until proved valid,[278] and more recently presumptions of invalidity have appeared to prevail against statutes alleged to interfere with freedom of expression and of religious worship, which have been said to occupy a preferred position in the Constitution.[279]

Exclusion of Extra-Constitutional Tests

A fifth maxim of constitutional interpretation runs to the effect that the Courts are concerned only with the constitutionality of legislation and not with its motives, policy or wisdom, or with its concurrence with natural justice, fundamental principles of government, or spirit of the Constitution.[280] In various forms this maxim has been repeated to such an extent that it has become trite and has increasingly come to be incorporated in constitutional cases as a reason for fortifying a finding of unconstitutionality. Through absorption of natural rights doctrines into the text of the Constitution, the Court was enabled to reject natural law and still to partake of its fruits, and the same is true of the laissez faire principles incorporated in judicial decisions from about 1890 to 1937. Such protective coloration is transparent in such cases as Lochner v. New York[281] and United States v. Butler.[282]

Disallowance by Statutory Interpretation

A sixth principle of constitutional interpretation designed by the courts to discourage invalidation of statutes is that if at all possible the courts will construe the statute so as to bring it within the law of the Constitution.[283] At times this has meant that a statute was construed so strictly in order to avoid constitutional difficulties that its efficacy was impaired if not lost.[284] A seventh principle closely related to the preceding one is that in cases involving statutes, portions of which are valid and other portions invalid, the courts will separate the valid from the invalid and throw out only the latter unless such portions are inextricably connected.[285] Sometimes statutes expressly provide for the separability of provisions, but it remains for the courts in the last resort to determine whether the provisions are separable.[286]

Stare Decisis in Constitutional Law

An eighth limitation on the power of the federal courts to invalidate legislation springs from the principle of stare decisis, a limitation which has been progressively weakened since the Court proceeded to correct “a century of error” in Pollock v. Farmers’ Loan & Trust Co.[287] Because of the difficulty of amending the Constitution the Court has long taken the position that it will reverse its previous decisions on constitutional issues when convinced they are grounded on error more quickly than in other types of cases in which earlier precedents are not absolutely binding.[288] The “constitutional revolution” of 1937 produced numerous reversals of earlier precedents as other sections of this study disclose, and the process continues. In Smith v. Allwright,[289] which reversed Grovey v. Townsend,[290] Justice Reed cited fourteen cases decided between March 27, 1937, and June 14, 1943, in which one or more earlier decisions of constitutional questions were overturned. Although the general effect of the numerous reversals of precedent between 1937 and 1950 was to bring judicial interpretation more generally into accord with the formal text of the Constitution, and to dispose of a considerable amount of constitutional chaff, Justice [Pg 566]Roberts was moved to say in the Allwright case that frequent reversals of earlier decisions tended to bring adjudications of the Supreme Court “into the same class as a restricted railroad ticket, good for this day and train only.”[291] A ninth limitation which has nothing to do with statutory or constitutional construction as such and which is altogether precautionary is that the Court will declare no legislative act void unless a majority of its full membership so concurs.[292]

The cumulative effect of these limitations is difficult to measure. The limitation imposed by the case concept definitely has the effect of postponing judicial nullification, but beyond this the most that can be said is that constitutional issues affecting important issues can ordinarily be presented in a case and so will sooner or later reach the Court. The limitations of the presumptions of statutory validity, lack of concern with the wisdom of the legislation, alternative construction, separability of provisions and the like depend for their effectiveness upon the consciousness of the individual judge of the judicial proprieties and have been equally endorsed by those judges most frequently addressing themselves to the task of finding legislation invalid. The limitation imposed by the concept of political questions does not limit in any significant way the power of the federal courts to review legislation, but does remove from judicial scrutiny vast areas of executive action. In general, therefore, the extent to and manner in which the courts will exercise their power to review legislation is a matter of judicial discretion.


The question of jurisdiction of cases involving federal questions is determined by the allegations made by the plaintiff and not upon the [Pg 567]facts as they may emerge or by a decision of the merits.[293] Plaintiffs seeking to docket such cases in the federal courts must set forth a substantial claim under the Constitution, laws or treaties of the United States.[294] Nor does jurisdiction arise simply because an averment of a federal right is made, “if it plainly appears that such averment is not real and substantial, but is without color of merit.”[295] The federal question averred may be insubstantial because obviously without merit, or because its unsoundness so clearly results from previous decisions of the Supreme Court as to foreclose the issue and leaves no room for the inference that the questions sought to be raised can be subjects of controversy.[296] In Gully v. First National Bank[297] the Court reviewed earlier precedents and endeavored to restate the rules for determining when a case arises. First there must be a right or immunity created by the Constitution, laws, or treaties of the United States which must be such that it will be supported if the Constitution, laws, or treaties are given one construction, or defeated if given another. Second, a genuine and present controversy as distinguished from a possible or conjectural one must exist with reference to the federal right. Third, the controversy must be disclosed upon the face of the complaint unaided by the answer.[298]


The earlier hospitality of the federal courts to cases involving federal questions is also manifested in suits by corporations chartered by Congress. Although in Bank of United States v. Deveaux[299] the Court held that the first Bank of the United States could not sue in the federal courts merely because it was incorporated by an act of Congress, the act incorporating the second bank authorized such suits and this authorization was not only sustained in Osborn v. Bank of United States,[300] but an act of incorporation was declared to be a law of the United States for purposes of jurisdiction in cases involving federal questions. Consequently, the door was opened to other federally chartered corporations to go into the federal courts after the act of 1875 vested original jurisdiction generally in the lower courts of such questions. Corporations, chartered by Congress, particularly railroads, quickly availed themselves of this opportunity, and succeeded in the Pacific Railroad Removal Cases[301] in removing suits from the State to the federal courts in cases involving no federal question solely on the basis of federal incorporation. The result of this and similar cases was Congressional legislation depriving national banks of the right to sue in the federal courts solely on the basis of federal incorporation in 1882,[302] depriving railroads holding federal charters of this right in 1915,[303] and finally in 1925 removing from federal jurisdiction involving federal questions all suits brought by federally chartered corporations, solely on the basis of federal incorporation, except where the United States holds half of the stock.[304]


Of greater significance and of immediate importance to the maintenance of national supremacy are those cases involving State prosecution of federal officials for acts committed under the color of federal authority. As early as 1815 Congress provided temporarily for the removal of prosecutions against customs officials for acts done or omitted as an officer or under color of an act of Congress, except for offenses involving corporal punishment.[305] In 1833, in partial answer to South Carolina’s Nullification Proclamation, Congress enacted the so-called Force Act providing for removal from State courts of all [Pg 569]prosecutions against any officer of the United States or under color thereof.[306] As a part of the Civil War legislation and limited to the war period, an act in 1863 provided for removal from State courts of cases brought against federal officials for acts committed during the war and justified under the authority of Congress and the President.[307] The act of 1833, with amendments, has been kept in force. Since 1948 the United States Code has provided for the removal to a federal district court of civil actions or criminal prosecutions in State courts against “any officer of the United States or any agency thereof, or person acting under him, for any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue.”[308]

Tennessee v. Davis

The validity of the act of 1833 as it was carried over into the Revised Statutes, § 643, was contested in Tennessee v. Davis,[309] which involved the attempt of a State to prosecute a deputy collector of internal revenue who had killed a man while seeking to seize an illicit distilling apparatus. In an opinion in the tradition of Martin v. Hunter’s Lessee[310] and Cohens v. Virginia,[311] Justice Strong emphasized the power of the National Government to protect itself in the exercise of its constitutional powers, the inability of a State to exclude it from the exercise of any authority conferred by the Constitution, and the comprehensive nature of the term “cases in law and equity arising under the Constitution, the laws of the United States, and treaties * * *” which was held to embrace criminal prosecutions as well as civil actions. Then speaking of a case involving federal questions he said: “It is not merely one where a party comes into court to demand something conferred upon him by the Constitution or by a law or treaty. A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.”[312]


In addition to the constitutional issues presented earlier by § 25 of the act of 1789, which was superseded in 1934 when the “Writ of error” was replaced by “Appeal,” issues have continued to arise concerning its application which go directly to the nature and extent of the Supreme Court’s appellate jurisdiction. These have to do with such matters as the existence of a federal question, exhaustion of remedies in State courts, and review of findings of fact by State courts. Whether a federal question has been adequately presented to and decided by a State court has been held to be in itself a federal question, to be decided by the Supreme Court on appeal.[313] Likewise a contention that a decision of a State court disregarded decrees of a United States Court has been held to bring a case within the Court’s jurisdiction;[314] also a decision by a State court which was adverse to an asserted federal right although, as the record of the case showed, it might have been based upon an independent and adequate nonfederal ground.[315] This latter ruling, however, was qualified during the same term of Court in a case which held that it is essential to the jurisdiction of the Supreme Court, in reviewing a decision of a State court that it must appear affirmatively from the record, not only that a federal question was presented for determination, but that its decision was necessary to the determination of the cause; that the federal question was actually decided, or that the judgment could not have been given without deciding it.[316]

These rules all flow from the broader principle that if the laws and Constitution of the United States are to be observed, the Supreme Court cannot accept as final the decision of a State court on matters alleged to give rise to an asserted federal right.[317] Consequently, the Supreme Court will review the findings of fact by a State court where a federal right has been denied by a finding shown by the record to be without evidence to support it, and where a conclusion of law as to a federal right and findings of facts are so intermingled as to make it necessary to analyze the facts in order to pass upon the federal question.[318] It should be noted, too, that barring exceptional circumstances such as those in Gilchrist v. Interborough Rapid Transit Co.,[319] which involved intricate contracts between the City of New York and the company, the meaning of which had not been determined by the State courts, or explicit statutory provisions as in 28 U.S.C.A. §§ 1331-1332, 1345, 1359, resort to a federal court may precede the exhaustion of remedies of State courts.[320]

Suits Affecting Ambassadors, Other Public Ministers, and Consuls

The earliest interpretation of the grant of original jurisdiction to the Supreme Court came in the Judiciary Act of 1789, which conferred on the federal district courts jurisdiction of suits to which a consul might be a party. This legislative interpretation was sustained in 1793 in a circuit court case in which the judges held that Congress might vest concurrent jurisdiction involving consuls in the inferior courts and sustained an indictment against a consul.[321] Many years later, in 1884, the Supreme Court held that consuls could be sued in the federal courts,[322] and in another case in the same year declared sweepingly that Congress could grant concurrent jurisdiction to the inferior courts in cases where the Supreme Court has been invested with original jurisdiction.[323] Nor does the grant of original jurisdiction to the Supreme Court in cases affecting ambassadors and consuls of itself preclude suits in State courts against consular officials. The leading case is Ohio ex rel. Popovici v. Agler[324] in which a Rumanian vice-consul contested an Ohio judgment against him for divorce and alimony. Justice Holmes, speaking for the Court, said: “The words quoted from the Constitution do not of themselves and without more exclude the jurisdiction of the State. * * * It has been understood that, ‘the whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States.’ * * * In the absence of any prohibition in the Constitution or laws of the United States it is for the State to decide how far it will go.”


A number of incidental questions arise in connection with the phrase “affecting ambassadors and consuls.” Does the ambassador or consul to be affected have to be a party in interest, or is a mere indirect interest in the outcome of the proceeding sufficient? In United States v. Ortega,[325] the Court ruled that a prosecution of a person for violating international law and the laws of the United States by offering violence to the person of a foreign minister was not a suit “affecting” the minister, but a public prosecution for vindication of the laws of nations [Pg 572]and the United States. Another question concerns the official status of a person claiming to be an ambassador, etc. In Ex parte Baiz,[326] the Court refused to review the decision of the Executive with respect to the public character of a person claiming to be a public minister and laid down the rule that it has the right to accept a certificate from the Department of State on such a question. A third question was whether the clause included ambassadors and consuls accredited by the United States to foreign governments. The Court held that it includes only persons accredited to the United States by foreign governments.[327] However, matters of especial delicacy such as suits against ambassadors and public ministers or their servants, where the law of nations permits such suits, and in all controversies of a civil nature to which a State is a party,[328] Congress has made the original jurisdiction of the Supreme Court exclusive of that of other courts. By its compliance with the Congressional distribution of exclusive and concurrent original jurisdiction, the Court has tacitly sanctioned the power of Congress to make such jurisdiction exclusive or concurrent as it may choose. Likewise, as in the Popovici case, it has implied that Congress, if it chose, could make the court’s jurisdiction of consular officials exclusive of State Courts.

Cases of Admiralty and Maritime Jurisdiction


The admiralty and maritime jurisdiction of the federal courts had its origin in the jurisdiction vested in the courts of the Admiral of the English Navy. Prior to independence, vice-admiralty courts were created in the Colonies by commissions from the English High Court of Admiralty. After independence, the States established admiralty courts, from which at a later date appeals could be taken to a court of appeals set up by Congress under the Articles of Confederation.[329] Since one of the objectives of the Philadelphia Convention was the promotion of commerce and the removal of obstacles to it, it was only logical that the Constitution should deprive the States of all admiralty jurisdiction and vest it exclusively in the federal courts.


The Constitution uses the terms “admiralty and maritime jurisdiction” without defining them. Though closely related the words are not synonyms. In England the word “maritime” referred to the [Pg 573]cases arising upon the high seas, whereas “admiralty” meant primarily cases of a local nature involving police regulations of shipping, harbors, fishing, and the like. A long struggle between the admiralty and common law courts had, however, in the course of time resulted in a considerable curtailment of English admiralty jurisdiction. For this and other reasons, a much broader conception of admiralty and maritime jurisdiction existed in the United States at the time of the framing of the Constitution than in the Mother Country.[330] At the very beginning of government under the Constitution, Congress conferred on the federal district courts exclusive original cognizance “of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation or trade of the United States, where the seizures are made, on waters which are navigable from the sea by vessels of ten or more tons burthen, within their respective districts, as well as upon the high seas; saving to suitors, in all cases, the right of a common law remedy, where the common law is competent to give it; * * *”[331] This broad legislative interpretation of admiralty and maritime jurisdiction soon won the approval of the federal circuit courts, which ruled that the extent of admiralty and maritime jurisdiction was not to be determined by English law but by the principles of maritime law “as respected by maritime courts of all nations and adopted by most, if not by all, of them on the continent of Europe.”[332]


Although a number of Supreme Court decisions had earlier sustained the broader admiralty jurisdiction on specific issues,[333] it was not until 1848 that the Court ruled squarely in its favor, which it did by declaring that, “whatever may have been the doubt, originally, as to the true construction of the grant, whether it had reference to the jurisdiction in England, or to the more enlarged one that existed in other maritime countries, the question has become settled by legislative and judicial interpretation, which ought not now to be disturbed.”[334] The Court thereupon proceeded to hold that admiralty had jurisdiction in personam as well as in rem, over controversies arising out of contracts of affreightment between New York and Providence.


Admiralty and maritime jurisdiction comprises two types of cases: (1) those involving acts committed on the high seas or other navigable waters; and (2) those involving contracts and transactions [Pg 574]connected with shipping employed on the seas or navigable waters. In the first category, which includes prize cases, and torts, injuries, and crimes committed on the high seas, jurisdiction is determined by the locality of the act; while in the second category subject matter is the primary determinative factor.[335] Specifically, contract cases include suits by seamen for wages,[336] cases arising out of marine insurance policies,[337] actions for towage[338] or pilotage[339] charges, actions on bottomry or respondentia bonds,[340] actions for repairs on a vessel already used in navigation,[341] contracts of affreightment,[342] compensation for temporary wharfage,[343] agreements of consortship between the masters of two vessels engaged in wrecking,[344] and surveys of damaged vessels.[345] In the words of the Court in Ex parte Easton,[346] admiralty jurisdiction “extends to all contracts, claims and services essentially maritime.”


Jurisdiction of maritime torts depends exclusively upon the commission of the wrongful act upon navigable waters[347] regardless of the voyage and the destination of the vessel.[348] By statutory elaboration, as well as judicial decision, maritime torts include injuries to persons,[349] damages to property arising out of collisions or other negligent acts,[350] and violent dispossession of property.[351] But until Congress makes some regulation touching the liability of parties for marine torts resulting in the death of the persons injured, a State statute providing “that when the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may maintain an action therefor against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission,” applies, and, as thus applied, it constitutes no encroachment upon the commerce power of Congress.[352]


From the earliest days of the Republic, the federal courts sitting in admiralty have been held to have exclusive jurisdiction of prize cases.[353] Also, in contrast to other phases of admiralty jurisdiction prize law as applied by the British courts continued to provide the basis of American law so far as practicable,[354] and so far as it was not modified by subsequent legislation, treaties, or executive proclamations. Finally, admiralty and maritime jurisdiction comprises the seizure and forfeiture of vessels engaged in activities in violation of the laws of nations or municipal law, such as illicit trade,[355] infraction of revenue laws,[356] and the like.[357]


Procedure in admiralty jurisdiction differs in few respects from procedure in actions at law, but the differences that do exist are significant. Suits in admiralty take the form of a proceeding in rem against the vessel and, with exceptions to be noted, proceedings in rem concerning navigable waters are confined exclusively to federal admiralty courts. However, if a common law remedy exists, a plaintiff may bring an action at law in either a State or federal court of competent jurisdiction,[358] but in this event the action is a proceeding in personam against the owner of the vessel. On the other hand, although the Court has sometimes used language which would confine proceedings in rem to admiralty courts,[359] yet it has sustained proceedings [Pg 576]in rem in the State courts in actions of forfeiture. Thus in the case of C.J. Hendry Co. v. Moore,[360] the Court held that a proceeding in rem in a State court against fishing nets in the navigable waters of California was a common law proceeding within the meaning of § 9 of the Judiciary Act of 1789, and therefore within the exception to the grant of admiralty jurisdiction to the federal courts. At the same time, however, the Court was careful to confine such proceedings to forfeitures arising out of violations of State law.


Another procedural difference between actions at law and in admiralty is the absence of jury trial in civil proceedings in admiralty courts unless Congress specifically provides for it. Otherwise the judge of an admiralty court tries issues of fact as well as of law.[361] Indeed, the absence of a jury in admiralty proceedings appears to have been one of the reasons why the English government vested a broad admiralty jurisdiction in the colonial vice-admiralty courts of America, since they provided a forum where the English authorities could enforce the Navigation Laws without what Chief Justice Stone called “the obstinate resistance of American juries.”[362]


As early as 1821 a federal district court in Kentucky asserted admiralty jurisdiction over inland waterways to the consternation of certain interests in Kentucky which succeeded in inducing the Senate to pass a bill confining admiralty jurisdiction to the ebb and flow of the tide, only to see it defeated in the House.[363] However, in 1825, in The Thomas Jefferson[364] the Court relieved these tensions by confining admiralty jurisdiction to the high seas and upon rivers as far as the ebb and flow of the tide extended in accordance with the English rule. Twenty-two years later this rule was qualified in Waring v. Clarke,[365] when the Court ruled that the admiralty jurisdiction under the Constitution was not to be limited or interpreted by English rules of admiralty and extended the jurisdiction of the federal courts [Pg 577]to a collision on the Mississippi River ninety-five miles above New Orleans. In this ruling the Court moved in the direction of accommodating the rising commerce on the inland waterways and prepared the way for the Genesee Chief,[366] which reversed The Thomas Jefferson and sustained the constitutionality of an act of Congress passed in 1845 giving the district courts jurisdiction over the Great Lakes and connecting waters, and so in effect extended the admiralty jurisdiction to all the navigable waters of the United States.[367] The Genesee Chief therefore vastly expanded federal power,[368] and marked a trend which was continued in Ex parte Boyer,[369] where admiralty jurisdiction was extended to canals, and in The Daniel Ball,[370] where it was extended to waters wholly within a given State provided they form a connecting link in interstate commerce. This latter case is also significant for its definition of navigable waters of the United States as those that are navigable in fact, and as navigable in fact when so “used, or * * * susceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.”[371] The doubts left by the Ball case in its distinction between navigable waters of the United States and navigable waters of the States were clarified by In re Garnett,[372] where it was held that the power of Congress to amend the maritime law was coextensive with that law and not confined “to the boundaries or class of subjects which limit and characterize the power to regulate commerce,” and that the admiralty jurisdiction extends “to all public navigable lakes and rivers.” In United States v. Appalachian Electric Power Co.,[373] the concept of “navigable waters of the United States” was further expanded to include waterways which by reasonable improvement can be made navigable for use in interstate commerce provided there is a balance between cost and need at a time when the improvement would be useful. Nor is it necessary that the improvement shall have been undertaken or authorized. Conversely, a navigable waterway of the United States does not cease to be so because navigation has ceased, and it may be a navigable waterway for only part of its course. Although this doctrine was announced as an interpretation of the commerce clause, the Garnett case and the decision rendered in Southern S.S. Co. v. National Labor Relations Board,[374] to the effect that admiralty jurisdiction includes all navigable waters within the country, makes it applicable also to the admiralty and maritime clause.


The extension of the admiralty and maritime jurisdiction to navigable waters within a State does not, however, of its own force include general or political powers of government. Thus in the absence of legislation by Congress, the States through their courts may punish offenses upon their navigable waters and upon the sea within one marine league of the shore. In United States v. Bevans[375] the Court denied the jurisdiction of a federal circuit court to try defendant for a murder committed in Boston Harbor in the absence of statutory authorization of trials in federal courts for offenses committed within the jurisdiction of a State. While admitting that Congress may pass all laws which are necessary and proper for giving complete effect to admiralty jurisdiction, Chief Justice Marshall at the same time declared that “the general jurisdiction over the place, subject to this grant of power, adheres to the territory, as a portion of sovereignty not yet given away. The residuary powers of legislation are still in Massachusetts.”[376]

Exclusiveness of the Jurisdiction

Determination of the bounds of admiralty jurisdiction is a judicial function, and “no State law can enlarge it, nor can an act of Congress or a rule of court make it broader than the judicial power [Pg 579]may determine to be its true limits.”[377] Nor is the jurisdiction self-executing. It can only be exercised under acts of Congress vesting it in the federal courts.[378] The admiralty jurisdiction of the federal courts was made exclusive of State court jurisdiction by the Judiciary Act of 1789 according to The “Moses Taylor,”[379] which also held that State laws conferring remedies in rem could only be enforced in the federal courts. Consequently, the State courts were deprived of jurisdiction of a great number of cases arising out of maritime contracts and torts over which they had exercised jurisdiction prior to 1866. However, as before noted, the ninth section of the act of 1789 contained a provision, still in effect, which enables parties to avail themselves in State courts of such remedies as the common law is competent to give,[380] but in such cases the rights and obligations involved are still determined by the maritime law.[381]

Concessions to State Power

Nor does the exclusiveness of federal admiralty jurisdiction preclude the States from creating rights enforceable in admiralty courts. In The “Lottawanna,”[382] it was held that federal district courts sitting in admiralty could enforce liens given for security of a contract even when created by State laws. Likewise liabilities created by State statutes for injuries resulting in death have been enforced by proceedings in rem in federal admiralty courts,[383] and, in the absence of Congressional legislation, a State may enact laws governing the rights and obligations of its citizens on the high seas. Under this general rule a law of Delaware providing for damages for wrongful death was enforced in an admiralty proceeding against a vessel arising out of a collision at sea of two vessels owned by Delaware corporations.[384] And in 1940, in Just v. Chambers,[385] the Supreme Court held specifically applicable in admiralty proceedings the law of Florida whereby a cause of action for personal injury due to another’s negligence survives the death of the tort-feasor against his estate and against the vessel.

The Jensen Case and Its Sequelae

In the face of these decisions, except the last, the Court, nevertheless, held in 1917 in Southern Pacific Co. v. Jensen[386] that a New York Workman’s Compensation statute was unconstitutional as applied to employees engaged in maritime work. Proceeding on the assumption that “Congress has paramount power to fix and determine the maritime law which shall prevail through the country,” and that in the absence of a controlling statute the general maritime law as accepted by the federal courts is a part of American national law, Justice McReynolds proceeded to draw an analogy between the power of the States to legislate on admiralty and maritime matters and their power to legislate on matters affecting interstate commerce. Just as the States may not regulate interstate commerce where the subject is national in character and requires uniform regulation, so, he argued, they may not legislate on maritime matters in such fashion as to destroy “the very uniformity in respect to maritime matters which the Constitution was designed to establish” or to hamper and impede freedom of navigation between the States and with foreign countries. Nor could the act be covered by the saving clause of the act of 1789 governing common law remedies, since the remedy provided by the compensation statute was unknown to the common law.[387]

Following the Jensen decision Congress enacted a statute saving to claimants their rights and remedies under State workmen’s compensation laws.[388] In Knickerbocker Ice Co. v. Stewart[389] the same majority of judges, with Justice McReynolds again their spokesman, invalidated this statute as an unconstitutional delegation of legislative power to the States. The holding was based on the premise, stated as follows: “The Constitution itself adopted and established, as part of the laws of the United States, approved rules of the general maritime law and empowered Congress to legislate in respect of them and other matters within the admiralty and maritime jurisdiction. Moreover, it took from the States all power, by legislation or judicial decision, to contravene the essential purposes of, or to work material injury to, characteristic features of such law or to interfere with its proper harmony and uniformity in its international and interstate [Pg 581]relations.”[390] And a like fate overtook the attempt of Congress in 1922 to protect longshoremen and other workers under State compensation laws by excluding masters and crew members of vessels from those who might claim compensation for maritime injuries.[391] Finally, in 1927 Congress passed the Longshoremen’s and Harbor Workers’ Act,[392] which provided accident compensation for those workers who could not validly be compensated under State statutes. This time it seems to have succeeded, the constitutionality of the 1927 statute being apparently taken for granted.[393]

The net result of the Jensen Case and its progeny has been a series of cases which hold that in some circumstances the States can apply their compensation laws to maritime employees and in other circumstances cannot, if to do so “works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations.”[394] But, as Justice Black pointed out in 1942 in Davis v. Department of Labor,[395] “when a State could, and when it could not, grant protection under a compensation act was left as a perplexing problem, for it was held ‘difficult, if not impossible,’ to define this boundary with exactness.”[396] Nor, he continued, has the Court been able “to give any guiding, definite rule to determine the extent of state power in advance of litigation, and has held that the margins of state authority must ‘be determined in view of surrounding circumstances as cases arise.'”[397] As to the specific claim involved in the Davis Case, Justice Black stated further that it was “fair to say that a number of cases can be cited both in behalf of and in opposition to recovery here.”[398] Concurring in the Davis Case, Justice Frankfurter referred to the Jensen case as “that ill-starred decision,” but agreed that reversal would not eliminate its resultant complexities and confusions until Congress attempted another comprehensive solution of the problem. Until then all the Court could do was “to bring order out of the remaining judicial chaos as marginal situations” were presented.[399]


In view of the chaos created by the Jensen case and its apparent disharmony with earlier as well as some later decisions the question arises as to the scope of Congress’s power to revise and codify the maritime law. In the “Lottawanna”[400] Justice Bradley as spokesman of the Court, while admitting the existence of a general body of maritime law, asserted that it is operative as law only insofar “as it is adopted by the laws and usages of that country,”[401] subject to such modifications and qualifications as may be made. So adopted and qualified it becomes the law of a particular nation, but not until then. “That we have a maritime law of our own, operative throughout the United States, cannot be doubted. The general system of maritime law which was familiar to the lawyers and statesmen of the country when the Constitution was adopted, was most certainly intended and referred to when it was declared in that instrument that the judicial power of the United States shall extend ‘to all cases of admiralty and maritime [Pg 583]jurisdiction.'” Continuing, Justice Bradley stated that “the Constitution must have referred to a system of law coextensive with and operating uniformly in, the whole country. It certainly could not have been the intention to place the rules and limits of maritime law under the disposal and regulation of the several States, as that would have defeated the uniformity and consistency at which the Constitution aimed on all subjects of a commercial character affecting the intercourse of the States with each other or with foreign states.”[402] However, the framers of the Constitution could not have contemplated that the law should remain ever the same, especially as Congress “has authority under the commercial power, if no other, to introduce such changes as are likely to be needed.”[403] Sixteen years later in the Garnett case[404] Justice Bradley, speaking for a unanimous court, asserted that the power of Congress to amend the maritime law is coextensive with that law and not limited by the boundaries of the commerce clause, and that the maritime law is “subject to such amendments as Congress may see fit to adopt.”[405] Likewise, Justice McReynolds in Southern Pacific Co. v. Jensen[406] emphasizes Congress’ “paramount power to fix and determine the maritime law which shall prevail throughout the country,” albeit in the absence of a controlling statute the general maritime law prevails; and the language of Knickerbocker Ice Co. v. Stewart[407] is to like effect, as is also that of Swanson v. Marra Bros.,[408] decided in 1946.

The law administered by the federal courts sitting in admiralty is therefore an amalgam of the general maritime law insofar as it is acceptable to the courts, modifications of that law by Congressional enactments, the common law of torts and contracts as modified by State or National legislation, and international prize law. This body of law, however, is subject at all times to the paramount authority of Congress to change it in pursuance of its powers under the commerce clause, the admiralty and maritime clause, and the necessary and proper clause. That portion of the Jensen opinion emphasizing Congressional power in this respect has never been in issue in either the opinions of the dissenters in that case or in subsequent opinions critical of it, which in effect invite Congress to exercise its power to modify the maritime law.[409]

Cases to Which the United States Is a Party: Right of the United States To Sue

As Justice Story pointed out in his Commentaries, “It would be a perfect novelty in the history of national jurisprudence, as well as of public law, that a sovereign had no authority to sue in his own courts.”[410] As early as 1818 the Supreme Court ruled that the United States could sue in its own name in all cases of contract without Congressional authorization of such suits.[411] Later this rule was extended to other types of actions. In the absence of statutory provisions to the contrary such suits are initiated by the Attorney General in the name of the United States.[412] As in other judicial proceedings, the United States, like any other party plaintiff, must have an interest in the subject matter and a legal right to the remedy sought.[413] By the Judiciary Act of 1789 and subsequent amendments Congress has vested jurisdiction in the federal district courts to hear all suits of a civil nature at law or in equity, brought by the United States as a party plaintiff.[414]


Controversies to which the United States is a party include suits brought against States as party defendants. The first such suit occurred in United States v. North Carolina[415] which was an action by the United States to recover upon bonds issued by North Carolina. Although no question of jurisdiction was raised, in deciding the case on its merits in favor of the State, the Court tacitly assumed that it had jurisdiction of such cases. The issue of jurisdiction was directly raised by Texas a few years later in a bill in equity brought by the United States to determine the boundary between Texas and the Territory of Oklahoma, and the Court sustained its jurisdiction over strong arguments by Texas to the effect that it could not be sued by the United States without its consent and that the Supreme Court’s original jurisdiction did not extend to cases to which the United States is a party.[416] Stressing the inclusion within the judicial power of cases to which the United States and a State are parties, Justice Harlan pointed out that the Constitution made no exception of suits brought by the United States. In effect, therefore, consent to be sued by the United States “was given by Texas when admitted to the Union upon an equal footing in all respects with the other States.”[417]

Suits brought by the United States against States have, however, been infrequent. All of them have arisen since 1889, and they have become somewhat more common since 1926. That year the Supreme Court decided a dispute between the United States and Minnesota over land patents issued to the State by the United States in breach of its trust obligations to the Indians.[418] In United States v. West Virginia,[419] the Court refused to take jurisdiction of a suit in equity brought by the United States to determine the navigability of the New and Kanawha Rivers on the ground that the jurisdiction in such suits is limited to cases and controversies and does not extend to the adjudication of mere differences of opinion between the officials of the two governments. A few years earlier, however, it had taken jurisdiction of a suit by the United States against Utah to quiet title to land forming the beds of certain sections of the Colorado River and its tributaries within the States.[420] Similarly, it took jurisdiction of a suit brought by the United States against California to determine the ownership of and paramount rights over the submerged land and the oil and gas thereunder off the coast of California between the low-water mark and the three-mile limit.[421] Like suits were decided against Louisiana and Texas in 1950.[422]


In pursuance of the general rule that a sovereign cannot be sued in his own courts, it follows that the judicial power does not extend to suits against the United States unless Congress by general or special enactment consents to suits against the Government. This rule first emanated in embryo form in an obiter dictum by Chief Justice Jay in Chisholm v. Georgia, where he indicated that a suit would not lie against the United States because “there is no power which the courts can call to their aid.”[423] In Cohens v. Virginia,[424] also by way of dictum, Chief Justice Marshall asserted, “the universally received opinion is, that no suit can be commenced or prosecuted against the United States.” The issue was more directly in question in United States v. Clarke[425] where Chief Justice Marshall stated that as the [Pg 586]United States is “not suable of common right, the party who institutes such suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it.” He thereupon ruled that the act of May 26, 1830, for the final settlement of land claims in Florida condoned the suit. The doctrine of the exemption of the United States from suit was repeated in various subsequent cases, without discussion or examination.[426] Indeed, it was not until United States v. Lee[427] that the Court examined the rule and the reasons for it, and limited its application accordingly.

Waiver of Immunity by Congress

Since suits against the United States can be maintained only by permission, it follows that they can be brought only in the manner prescribed by Congress and subject to the restrictions imposed.[428] Only Congress can take the necessary steps to waive the immunity of the United States from liability for claims, and hence officers of the United States are powerless by their actions either to waive such immunity or to confer jurisdiction on a federal court.[429] Even when authorized, suits can be brought only in designated courts.[430] These rules apply equally to suits by States against the United States.[431] Although an officer acting as a public instrumentality is liable for his own torts, Congress may grant or withhold immunity from suit on behalf of government corporations.[432]

United States v. Lee

United States v. Lee, a five-to-four decision, qualified earlier holdings to the effect that where a judgment affected the property of the United States the suit was in effect against the United States, by ruling that title to the Arlington estate of the Lee family, then being used as a national cemetery, was not legally vested in the United States but was being held illegally by army officers under an unlawful order of the President. In its examination of the sources and application of the rule of sovereign immunity, the Court concluded that the rule “if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the rights of plaintiffs when the United States is not a defendant or a necessary party to the suit.”[433] Except, nevertheless, for an occasional case like Kansas v. United States,[434] which held that a State cannot sue the United States, most of the cases involving sovereign immunity from suit since 1883 have been cases against officers, agencies, or corporations of the United States where the United States has not been named as a party defendant. Thus, it has been held that a suit against the Secretary of the Treasury to review his decision on the rate of duty to be exacted on imported sugar would disturb the whole revenue system of the Government and would in effect be a suit against the United States.[435] Even more significant is Stanley v. Schwalby,[436] which resembles without paralleling United States v. Lee, where it was held that an action of trespass against an army officer to try title in a parcel of land occupied by the United States as a military reservation was a suit against the United States because a judgment in favor of the plaintiffs would have been a judgment against the United States.

Difficulties Created by the Lee Case

Subsequent cases repeat and reaffirm the rule of United States v. Lee that where the right to possession or enjoyment of property under general law is in issue, the fact that defendants claim the property as officers or agents of the United States, does not make the action one against the United States until it is determined that they were acting within the scope of their lawful authority.[437] Contrariwise, the rule that a suit in which the judgment would affect the United States or its property is a suit against the United States has also been repeatedly approved and reaffirmed.[438] But, as the Court has pointed out, it is not “an easy matter to reconcile all of the decisions of the court in this class of cases,”[439] and, as Justice Frankfurter quite justifiably stated in a dissent, “the subject is not free from casuistry.”[440] Justice Douglas’ characterization of Land v. Dollar, “this is the type of case where the question of jurisdiction is dependent on decision of the merits,”[441] is frequently applicable.

Official Immunity Today

The recent case of Larson v. Domestic and Foreign Corp.,[442] illuminates these obscurities somewhat. Here a private company sought to enjoin the Administrator of the War Assets in his official capacity from selling surplus coal to others than the plaintiff who had originally bought the coal, only to have the sale cancelled by the Administrator because of the company’s failure to make an advance payment. Chief Justice Vinson and a majority of the Court looked upon the suit as one brought against the Administrator in his official capacity, acting under a valid statute, and therefore a suit against the United States. It held that although an officer in such a situation is not immune from suits for his own torts, yet his official action, though tortious cannot be enjoined or diverted, since it is also the action of the sovereign.[443] The Court then proceeded to repeat the rule that “the action of an officer of the sovereign (be it holding, taking, or otherwise legally affecting the plaintiff’s property) can be regarded as so individual only if it is not within the officer’s statutory powers, or, if within those powers, only if the powers or their exercise in the particular case, are constitutionally void.”[444] The Court rejected the contention that the doctrine of sovereign immunity should be relaxed as inapplicable to suits for specific relief as distinguished from damage suits, saying: “The Government, as representative of the community as a whole, cannot be stopped in its tracks by any plaintiff who presents a disputed question of property or contract right.”[445]


Suits against officers involving the doctrine of sovereign immunity have been classified by Justice Frankfurter in a dissenting opinion into four general groups. First, there are those cases in which the plaintiff seeks an interest in property which belongs to the Government, or calls “for an assertion of what is unquestionably official authority.”[446] Such suits, of course, cannot be maintained.[447] Second, cases in which action adverse to the interests of a plaintiff is taken under an unconstitutional statute or one alleged to be so. In general these suits are maintainable.[448] Third, cases involving injury to a plaintiff because the official has exceeded his statutory authority. In general these suits are also maintainable.[449] Fourth, cases in which an officer seeks immunity behind statutory authority or some other sovereign command for the commission of a common law tort.[450] This category of cases presents the greatest difficulties since these suits can as readily be classified as falling into the first group if the action directly or indirectly is one for specific performance or if the judgment would affect the United States.


The multiplication of government corporations during periods of war and depression has provided one motivation for limiting the doctrine of sovereign immunity. In Keifer & Keifer v. Reconstruction Finance Corp. and Regional Agricultural Credit Corp.,[451] the Court held that the Government does not become a conduit of its immunity in suits against its agents or instrumentalities merely because they do its work. Nor does the creation of a government corporation confer upon it legal immunity. Whether Congress endows a public corporation with governmental immunity in a specific instance, is a matter of [Pg 591]ascertaining the Congressional will. Moreover, it has been held that waivers of governmental immunity in the case of federal instrumentalities and corporations should be construed liberally.[452] On the other hand, Indian nations are exempt from suit without further Congressional authorization; it is as though their former immunity as sovereigns passed to the United States for their benefit, as did their tribal properties.[453]

Suits Between Two or More States

The extension of the federal judicial power to controversies between States and the vesting of original jurisdiction in the Supreme Court of suits to which a State is a party had its origin in experience. Prior to independence disputes between colonies claiming charter rights to territory were settled by the Privy Council. Under the Articles of Confederation Congress was made “the last resort on appeal” to resolve “all disputes and differences * * * between two or more States concerning boundary, jurisdiction, or any other cause whatever,” and to constitute what in effect were ad hoc arbitral courts for determining such disputes and rendering a final judgment therein. When the Philadelphia Convention met in 1787, serious disputes over boundaries, lands, and river rights involved ten States.[454] It is hardly surprising, therefore, that during its first sixty years the only State disputes coming to the Supreme Court were boundary disputes[455] or that such disputes constitute the largest single number of suits between States. Since 1900, however, as the result of the increasing mobility of population and wealth and the effects of technology and industrialization other types of cases have occurred with increasing frequency.


Of the earlier examples of suits between States, that between New Jersey and New York is significant for the application of the rule laid down earlier in Chisholm v. Georgia,[456] that the Supreme Court [Pg 592]may proceed ex parte if a State refuses to appear when duly summoned. The long drawn out litigation between Rhode Island and Massachusetts is of even greater significance for its rulings, after the case had been pending for seven years, that though the Constitution does not extend the judicial power to all controversies between States, yet it does not exclude any;[457] that a boundary dispute is a justiciable and not a political question;[458] and that a prescribed rule of decision is unnecessary in such cases. On the last point Justice Baldwin stated: “The submission by the sovereigns, or states, to a court of law or equity, of a controversy between them, without prescribing any rule of decision, gives power to decide according to the appropriate law of the case (11 Ves. 294); which depends on the subject-matter, the source and nature of the claims of the parties, and the law which governs them. From the time of such submission, the question ceases to be a political one, to be decided by the sic volo, sic jubeo, of political power; it comes to the court, to be decided by its judgment, legal discretion and solemn consideration of the rules of law appropriate to its nature as a judicial question, depending on the exercise of judicial power; as it is bound to act by known and settled principles of national or municipal jurisprudence, as the case requires.”[459]


Beginning with Missouri v. Illinois and the Sanitary District of Chicago,[460] which sustained jurisdiction to entertain an injunction suit to restrain the discharge of sewage into the Mississippi River, water rights, the use of water resources, and the like have become an increasing source of suits between States. Such suits have been especially frequent in the western States, where water is even more of a treasure than elsewhere, but they have not been confined to any one region. In Kansas v. Colorado,[461] the Court established the principle of the equitable division of river or water resources between conflicting State interests. In New Jersey v. New York[462] where New Jersey sought to enjoin the diversion of waters into the Hudson River watershed for New York in such a way as to diminish the flow of the Delaware River in New Jersey, injure its shad fisheries, and increase harmfully the saline contents of the Delaware, Justice Holmes stated for the Court: “A river is more than an amenity, it is a treasure. It offers a necessity [Pg 593]of life that must be rationed among those who have power over it. New York has the physical power to cut off all the water within its jurisdiction. But clearly the exercise of such a power to the destruction of the interest of lower States could not be tolerated. And, on the other hand, equally little could New Jersey be permitted to require New York to give up its power altogether in order that the river might come down to it undiminished. Both States have real and substantial interests in the river that must be reconciled as best they may be.”[463]

Other types of interstate disputes of which the Court has taken jurisdiction include suits by a State as the donee of the bonds of another to collect thereon,[464] by Virginia against West Virginia to determine the proportion of the public debt of the original State of Virginia which the latter owed the former,[465] of one State against another to enforce a contract between the two,[466] of a suit in equity between States for the determination of a decedent’s domicile for inheritance tax purposes,[467] and of a suit by two States to restrain a third from enforcing a natural gas measure which purported to restrict the interstate flow of natural gas from the State in the event of a shortage.[468] In general in taking jurisdiction of these suits, along with those involving boundaries and the diversion or pollution of water resources, the Supreme Court proceeded upon the liberal construction of the term “controversies between two or more States” enunciated in Rhode Island v. Massachusetts,[469] and fortified by Chief Justice Marshall’s dictum in Cohens v. Virginia[470] concerning jurisdiction because of the parties to a case, that “it is entirely unimportant, what may be the subject of controversy. Be it what it may, these parties have a constitutional right to come into the Courts of the Union.”


In other cases, however, the Court, centering its attention upon the elements of a case or controversy, has declined jurisdiction. Thus in Alabama v. Arizona[471] where Alabama sought to enjoin 19 States from regulating or prohibiting the sale of convict-made goods, the Court went far beyond holding that it had no jurisdiction, and indicated that jurisdiction of suits between States will be exercised only when absolutely necessary, that the equity requirements in a suit between States are more exacting than in a suit between private persons, that the threatened injury to a plaintiff State must be of great magnitude and imminent, and that the burden on the plaintiff State to establish all the elements of a case is greater than that generally required by a petitioner seeking an injunction suit in cases between private parties.

Pursuing a similar line of reasoning, the Court declined to take jurisdiction of a suit brought by Massachusetts against Missouri and certain of its citizens to prevent Missouri from levying inheritance taxes upon intangibles held in trust in Missouri by resident trustees. In holding that the complaint presented no justiciable controversy, the Court declared that to constitute such a controversy, the complainant State must show that it “has suffered a wrong through the action of the other State, furnishing ground for judicial redress, or is asserting a right against the other State which is susceptible of judicial enforcement according to * * * the common law or equity systems of jurisprudence.”[472] The fact that the trust property was sufficient to satisfy the claims of both States and that recovery by either would not impair any rights of the other distinguished the case from Texas v. Florida,[473] where the contrary situation obtained. Furthermore, the Missouri statute providing for reciprocal privileges in levying inheritance taxes did not confer upon Massachusetts any contractual right. The Court then proceeded to reiterate its earlier rule that a State may not invoke the original jurisdiction of the Supreme Court for the benefit of its residents or to enforce the individual rights of its citizens.[474] Moreover, Massachusetts could not invoke the original jurisdiction of the Court by the expedient of making citizens of Missouri parties to a suit not otherwise maintainable.[475] Accordingly, Massachusetts was held not to be without an adequate remedy in Missouri’s courts or in a federal district court in Missouri.[476]


A very important issue that presents itself in interstate litigation is the enforcement of the Court’s decree, once it has been entered. In some types of suits, as Charles Warren has indicated, this issue may not arise; and if it does, it may be easily met. Thus a judgment putting a State in possession of disputed territory is ordinarily self-executing. But if the losing State should oppose execution, refractory State officials, as individuals, would be liable to civil suits or criminal prosecutions in the federal courts. Likewise an injunction decree may be enforced against State officials as individuals by civil or criminal proceedings. Those judgments, on the other hand, which require a State in its governmental capacity to perform some positive act present the issue of enforcement in more serious form. The issue arose directly in the long and much litigated case between Virginia and West Virginia over the proportion of the State debt of original Virginia owed by West Virginia after its separate admission to the Union under a compact which provided that West Virginia assume a share of the debt. The suit was begun in 1906, and a judgment was rendered against West Virginia in 1915. Finally in 1917 Virginia filed a suit against West Virginia to show cause why, in default of payment of the judgment, an order should not be entered directing the West Virginia legislature to levy a tax for payment of the judgment.[477] Starting with the rule that the judicial power essentially involves the right to enforce the results of its exertion,[478] the Court proceeded to hold that it applied with the same force to States as to other litigants,[479] and to consider appropriate remedies for the enforcement of its authority. In this connection, Chief Justice White declared: “As the powers to render the judgment and to enforce it arise from the grant in the Constitution on that subject, looked at from a generic point of view, both are federal powers and, comprehensively considered, are sustained by every authority of the federal government, judicial, legislative, or executive, which may be appropriately exercised.”[480] The Court, however, left open the question of its power to enforce the judgment under existing legislation and scheduled the case for reargument at the next term, but in the meantime West Virginia accepted the Court’s judgment and entered into an agreement with Virginia to pay it.[481]

Controversies Between a State and Citizens of Another State

The decision in Chisholm v. Georgia[482] that this category of cases included equally those where a State was a party defendant provoked the proposal and ratification of the Eleventh Amendment, and since then controversies between a State and citizens of another State have included only those cases where the State has been a party plaintiff or has consented to be sued. As a party plaintiff, a State may bring actions against citizens of other States to protect its legal rights or as parens patriae to protect the health and welfare of its citizens. In general, the Court has tended to construe strictly this grant of judicial power which simultaneously comes within its original jurisdiction by perhaps an even more rigorous application of the concepts of cases and controversies than that in cases between private parties.[483] This it does by holding rigorously to the rule that all the party defendants be citizens of other States,[484] and by adhering to Congressional distribution of its original jurisdiction concurrently with that of other federal courts.[485]


The Supreme Court has refused to take jurisdiction of a number of suits brought by States because of the lack of a justiciable controversy. In cases like Mississippi v. Johnson[486] and Georgia v. Stanton,[487] the political nature of the controversy constituted the dominant reason. In others, like Massachusetts v. Mellon[488] and Florida v. Mellon,[489] the political issue, though present, was accompanied by the inability of a State to sue in behalf of its citizens as parens patriae to contest the validity of an act of Congress when in national matters the National Government bore the relation of parens patriae to the same persons as citizens of the United States. Moreover, a State may not bring a suit in its own name for the benefit of particular persons.[490]


In Cohens v. Virginia[491] there is a dictum to the effect that the original jurisdiction of the Supreme Court does not include suits between a State and its own citizens. Long afterwards, the Supreme Court dismissed an action for want of jurisdiction because the record did not show the corporation against which the suit was brought was chartered in another State.[492] Subsequently the Court has ruled that it will not entertain an action by a State to which its citizens are either parties of record, or would have to be joined because of the effect of a judgment upon them.[493] In his dictum in Cohens v. Virginia, Chief Justice Marshall also indicated that perhaps no jurisdiction existed over suits by States to enforce their penal laws.[494] Sixty-seven years later the Court wrote this dictum into law in Wisconsin v. Pelican Insurance Co.[495] Here Wisconsin sued a Louisiana corporation to recover a judgment rendered in its favor by one of its own courts. Relying partly on the rule of international law that the courts of no country execute the penal laws of another, partly upon the 13th section of the Judiciary Act of 1789 which vested the Supreme Court with exclusive jurisdiction of controversies of a civil nature where a State is a party, and partly on Justice Iredell’s dissent in Chisholm v. Georgia,[496] where he confined the term “controversies” to civil suits, Justice Gray ruled for the Court that for purposes of original jurisdiction, “controversies between a State and citizens of another State” are confined to civil suits.[497]


The distinction between suits brought by States to protect the welfare of the people as a whole and suits to protect the private interests of individual citizens is not easily drawn. In Oklahoma ex rel. Johnson v. Cook,[498] the Court dismissed a suit brought by Oklahoma to enforce the statutory liability of a stockholder of a State bank then in the process of liquidation through a State officer. Although the State was vested with legal title to the assets under the liquidation procedure, the State’s action was independent of that and it was acting merely for the benefit of the bank’s creditors and depositors. A generation earlier the Court refused jurisdiction of Oklahoma v. Atchison, Topeka & Santa Fe R. Co.[499] in which Oklahoma sought to [Pg 598]enjoin unreasonable rate charges by a railroad on the shipment of specified commodities, inasmuch as the State was not engaged in shipping these commodities and had no proprietary interest in them.


Georgia v. Evans,[500] on the other hand, presents the case of a clear State interest as a purchaser of materials. Here, Georgia sued certain asphalt companies for treble damages under the Sherman Act arising allegedly out of a conspiracy to control the prices of asphalt of which Georgia was a large purchaser. The matter of Georgia’s interest was not contested and did not arise. The case is primarily significant for the ruling that a State is a person under section 7 of the Sherman Act authorizing suits by “any person” for treble damages arising out of violations of the Sherman Act. A less clear-cut case, and one not altogether in accord with Oklahoma v. Atchison, Topeka & Santa Fe R. Co.,[501] is Georgia v. Pennsylvania R. Co.[502] in which the State, suing as parens patriae and in its proprietary capacity, was permitted to file a bill of complaint against twenty railroads for injunctive relief from freight rates, allegedly discriminatory against the State and asserted to have been fixed through coercive action by the northern roads against the southern roads in violation of the 16th section of the Clayton Act. Although the rights of Georgia were admittedly based on federal laws, the Court indicated that the enforcement of the Sherman and Clayton acts depends upon civil as well as criminal sanctions. Moreover, the interests of a State for purposes of invoking the original jurisdiction of the Supreme Court were held, as in Georgia v. Tennessee Copper Co.,[503] not to be confined to those which are proprietary but to “embrace the so-called ‘quasi-sovereign’ interests which * * * are ‘independent of and behind the titles of its citizens, in all the earth and air within its domain.'”[504]


In the course of his opinion Justice Douglas, speaking for a narrowly divided Court, treated the alleged injury to Georgia as a proprietor as a “makeweight,” and remarked that the “original jurisdiction of this Court is one of the mighty instruments which the framers of the Constitution provided so that adequate machinery might be [Pg 599]available for the peaceful settlement of disputes between States and between a State and citizens of another State * * * Trade barriers, recriminations, intense commercial rivalries had plagued the colonies. The traditional methods available to a sovereign for the settlement of such disputes were diplomacy and war. Suit in this Court was provided as an alternative.”[505] Discriminatory freight rates, said he, may cause a blight no less serious than noxious gases in that they may arrest the development of a State and put it at a competitive disadvantage. “Georgia as a representative of the public is complaining of a wrong which, if proven, limits the opportunities of her people, shackles her industries, retards her development, and relegates her to an inferior economic position among her sister States. These are matters of grave public concern in which Georgia has an interest apart from that of particular individuals who may be affected. Georgia’s interest is not remote; it is immediate. If we denied Georgia as parens patriae the right to invoke the original jurisdiction of the Court in a matter of that gravity, we would whittle the concept of justiciability down to the stature of minor or conventional controversies. There is no warrant for such a restriction.”[506]

Controversies Between Citizens of Different States


Despite stringent definitions of the words “citizen” and “State” and strict statutory safeguards against abuse of the jurisdiction arising out of it, the diversity of citizenship clause is one of the more prolific sources of federal jurisdiction. In Hepburn v. Ellzey,[507] Chief Justice Marshall, speaking for the Court, confined the meaning of the word “State,” as used in the Constitution, to “the members of the American confederacy” and ruled that a citizen of the District of Columbia could not sue a citizen of Virginia on the basis of diversity of citizenship. In the course of his brief opinion Marshall owned that it was “extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every State in the union should be closed” to the residents of the District, but the situation, he indicated, was “a subject for legislative, not for judicial consideration.”[508] The same restrictive rule was later extended to citizens of territories of the United States.[509]

Extension of Jurisdiction by the Act of 1940

Whether Chief Justice Marshall had in mind a constitutional amendment or an act of Congress when he spoke of legislative consideration is not clear. At any rate, not until 1940 did Congress enact a statute to confer on federal district courts jurisdiction of civil actions (involving no federal question) “between citizens of different States, or citizens of the District of Columbia, the Territory of Hawaii, or Alaska and any State or Territory.”[510] In National Mutual Insurance Co. v. Tidewater Transfer Co.,[511] this act was sustained by five judges, but for widely different reasons. Justice Jackson, in an opinion in which Justices Black and Burton joined, was for adhering to the rule that the District of Columbia is not a State, but held the act to be valid nevertheless because of the exclusive and plenary power of Congress to legislate for the District and its broad powers under the necessary and proper clause.[512] Justice Rutledge, in a concurring opinion, in which Justice Murphy joined, agreed that the act was valid and asserted that the Ellzey case should be overruled.[513] Chief Justice Vinson in a dissent in which Justice Douglas concurred[514] and Justice Frankfurter in a dissent in which Justice Reed joined[515] thought the act invalid and would have adhered to the rule in the Ellzey case. The net result is that the Ellzey case still stands insofar as it holds that the District of Columbia is not a State, but that under Congressional enactment citizens of the District may now sue citizens of States in the absence of a federal question, on the basis of no statable constitutional principle, but through the grace of what Justice Frankfurter called “conflicting minorities in combination.”[516]


For purposes of diversity jurisdiction State citizenship is determined by domicile or residence, for the determination of which various tests have been stated: removal to a State, acquiring real estate there, and paying taxes;[517] residence in a State for a considerable time;[518] and removal to a State with the intent of making it one’s home for an indefinite period of time.[519] Where citizenship is dependent on intention, acts may disclose it more satisfactorily than declarations.[520] The fact that removal to another State is motivated solely by a desire to acquire citizenship for diversity purposes does not oust the federal courts of [Pg 601]jurisdiction so long as the new residence is indefinite or the intention to reside there indefinitely is shown.[521] But a mere temporary change of domicile for the purpose of suing in a federal court is not sufficient to effectuate a change in citizenship.[522] Exercise of the right of suffrage is a conclusive test of citizenship in a State, and the acquisition of the right to vote without exercising it is sufficient to establish citizenship.[523]


In Bank of United States v. Deveaux,[524] Chief Justice Marshall declared: “That invisible, intangible, and artificial being, that mere legal entity, a corporation aggregate, is certainly not a citizen; and consequently cannot sue or be sued in the courts of the United States, unless the rights of the members, in this respect, can be exercised in their corporate name.” He proceeded then to look beyond the corporate entity and hold that the bank could sue under the diversity provisions of the Constitution and the Judiciary Act of 1789 because the members of the bank as a corporation were citizens of one State and Deveaux was a citizen of another. This holding was reaffirmed a generation later, in Commercial and Railroad Bank of Vicksburg v. Slocomb,[525] at a time when corporations were coming to play a more important role in the national economy. The same rule, combined with the rule that in a diversity proceeding all the persons on one side of a suit must be citizens of different States from all persons on the other side,[526] could in the course of time have closed the federal courts in diversity cases to the larger corporations having stockholders in all or most of the States.

If such corporations were to have the benefits of diversity jurisdiction, either the Deveaux or the Strawbridge rule would have to yield. By 1844, only four years after the Slocomb Case, the interests of corporations in docketing cases in the federal courts as citizens of different States appeared more important to the Supreme Court than the weight to be attached to precedents, even those set by John Marshall, and in Louisville, Cincinnati, and Charleston R. Co. v. Letson,[527] both the Deveaux and Slocomb cases were overruled. After elaborate arguments by counsel, the Court, speaking through Justice Wayne, [Pg 602]held that “a corporation created by and doing business in a particular State, is to be deemed to all intents and purposes as a person, although an artificial person, an inhabitant of the same State, for the purposes of its incorporation, capable of being treated as a citizen of that State, as much as a natural person.”[528]

In the Letson Case the emphasis is upon the place of incorporation of a joint stock company as something completely separate from the citizenship of its members. In succeeding cases, however, this fiction of corporate personality has undergone modifications so that a corporation, though still a citizen of the State where it is chartered, is such by virtue of the jurisdictional fiction that all the stockholders are citizens of the State which by its laws created the corporation.[529] This presumption is conclusive and irrebuttable and resembles in many ways the English jurisdictional fiction that for providing remedies for wrongs done in the Mediterranean “the Island of Minorca was at London, in the Parish of St. Mary Le Bow in the Ward of Cheap.”[530] This fiction creates a logical anomaly, which the Letson rule had avoided, in those cases in which a stockholder of one State sues a corporation chartered in another State. Although all stockholders are conclusively presumed to be citizens of the State where the corporation is chartered, an individual stockholder from a different State may nevertheless aver his actual citizenship so as to maintain a diversity suit against the corporation.[531] These rulings lead to some extraordinary results, as John Chipman Gray has indicated: “The Federal courts take cognizance of a suit by a stockholder who is a citizen, say, of Kentucky, against the corporation in which he owns stock, which has been incorporated, say, by Ohio. Since he is a stockholder of an Ohio corporation, the court conclusively presumes that he is a citizen of Ohio, but if he were a citizen of Ohio, he could not sue an Ohio corporation in the Federal courts. Therefore the court considers that he is and he is not at the same time a citizen of Ohio, and it would have no jurisdiction unless it considered that he both was and was not at the same time a citizen both of Ohio and Kentucky.”[532]

The Black and White Taxicab Case

These fictions of corporate citizenship make it easy for corporations to go into the federal courts on matters of law that are purely local in nature, and they have availed themselves of the opportunity to the full. For a time the Supreme Court tended to look askance at collusory incorporations and the creation of dummy corporations for purposes of getting cases into the federal courts,[533] but as a result of the Kentucky Taxicab Case,[534] decided in 1928, the limitation of collusion lost much of its force. Here the Black and White company, a Kentucky corporation, dissolved itself and obtained a charter as a Tennessee corporation in order to get the benefit of a federal rule which would condone an exclusive contract with a railroad to park its cabs in and around a station whereas the State rule forbade such contracts. The only change made was of the State of incorporation. The name of the company, its officers, and shareholders, and the location of its business all remained the same. Yet no collusion was found, and the company received the benefit of the federal rule—a measure of salvation by being born again in Tennessee. The odd result in the Taxicab Case, whereby citizens of Kentucky could conduct business there contrary to State law with the sanction of the Supreme Court of the United States, did not stem solely from the rule that the citizenship of a corporation is determined by the State of its incorporation, but also from this rule combined with the rule of Swift v. Tyson,[535] another by-product of diversity jurisdiction.


Section 34 of the Judiciary Act of 1789 provided that in diversity cases at common law the laws of the several States should be the rules of decision in the United States courts. However, in Swift v. Tyson[536] the Supreme Court refused to apply this section on the ground that it did not extend to contracts or instruments of a commercial nature, the interpretation of which therefore ought to be according to “the general principles and doctrines of jurisprudence”; and while the decisions of [Pg 604]State courts on such subjects were entitled to and would receive attention and respect, they could not be conclusive or binding upon the federal courts.[537]

Extension of the Tyson Case

For ninety-six years the Court followed this opinion, which the other Justices saw only the evening before it was delivered, and which invoked a precedent of Lord Mansfield on the law of the sea and an epigram of Cicero on the law of nature.[538] Later decisions expanded the concept of matters of a commercial nature so that the scope of the Tyson rule was greatly extended.[539] In many instances the State courts followed their own rules of decision even when contrary to the federal rules, so that Justice Story’s attempt at uniformity in matters of a commercial nature paradoxically led to a greater diversity and to the mischief in many instances of two conflicting rules of law in the same State, with the outcome of suits dependent upon whether the case was docketed in a State or a federal court. Simultaneously, the Supreme Court was holding under the Tyson rule that the federal courts were not bound by decisions of State courts interpreting State constitutions[540] or State statutes.[541]

The Tyson Rule Protested

Moreover, decisions extending the scope of the Tyson rule were frequently rendered by a divided Court over the strong protests of dissenters.[542] In Baltimore and Ohio R. Co. v. Baugh,[543] which [Pg 605]further projected the Tyson rule into the law of torts in disregard of State law, Justice Field wrote a sharp dissent in which he indicated an opinion that the Supreme Court’s disregard of State court decisions was unconstitutional. Such disregard, nevertheless, was further aggravated in Kuhn v. Fairmont Coal Co.,[544] where the Court held that in construing a contract in a case involving real estate and mining law a federal court was not bound by a West Virginia decision touching the same subject. This evoked a provocative dissent from Justice Holmes, who later wrote one of his more famous dissents in the Black and White Taxicab Company case,[545] in which he asserted emphatically that the Court’s extensions of the Tyson rule were unconstitutional.[546]


Increasing criticism of the Tyson rule led to a restriction of it in Mutual Life Ins. Co. v. Johnson,[547] where the Court chose to apply Virginia decisions rather than exercise its independent judgment on the ground that the case was “balanced with doubt.”[548] The federal judicial power was subordinated to what Justice Cardozo called “a benign and prudent comity.”[549] Four years later, and without further preparation other than a change in two of the Justices, the Court overturned Swift v. Tyson and its judicial progeny in Erie Railroad Co. v. Tompkins,[550] in an opinion by Justice Brandeis which is remarkable in a number of ways. In the first place, it reversed a ninety-six year old precedent which counsel had not questioned; secondly, for the first and only time in American constitutional history, it held action of the Supreme Court itself to have been unconstitutional, to wit, action taken by it in reliance on its interpretation of the 34th section of the Judiciary Act of 1789, a question which also was not before the Court; and thirdly, it completely ignored the power of Congress under the commerce clause, as well as its power to prescribe [Pg 606]rules of decision for the federal courts in the cases enumerated in article III.

Like the Fairmont Coal and Taxicab cases, the Tompkins Case presented the possibility of a head-on conflict between State and federal rules of decision. Tompkins was seriously injured by a passing freight train while he was walking along the railroad’s right of way in Pennsylvania. As a citizen of Pennsylvania, Tompkins could have sued in that State, but he could also have sued in the federal district court in Pennsylvania, or in New York because the railroad was incorporated in the latter State. He elected to sue in the federal court for the southern district of New York, where he obtained a verdict for $30,000 after the trial judge had ruled that the applicable law did not preclude recovery. The circuit court of appeals affirmed the judgment because it thought it unnecessary to consider whether the law of Pennsylvania precluded recovery, inasmuch as the question was one of general law to be decided by the federal courts in the exercise of their independent judgment. Citing Warren’s discovery that Swift v. Tyson was an erroneous interpretation of the Judiciary Act of 1789, criticism of the Tyson doctrine both on and off the bench, and the political and social defects of the rule in working discriminations against citizens of a State in favor of noncitizens and in producing injustice and confusion, Justice Brandeis declared: “If only a question of statutory construction were involved, we should not be prepared to abandon a doctrine so widely * * * [followed for] nearly a century. But the unconstitutionality of the course pursued has now been made clear and compels us to do so. * * * There is, [he continued], no federal general common law. Congress has no power to declare substantive rules of common law applicable in a State whether they be local in their nature or ‘general,’ be they commercial law or a part of the law of torts. And no clause in the Constitution purports to confer such a power upon the federal courts.”[551] After quoting Justice Field and Justice Holmes on the unconstitutionality of the Tyson rule, Justice Brandeis made it clear that the Court was not invalidating § 34 of the Federal Judiciary Act of 1789, but was merely declaring that the Supreme Court and the lower federal courts had, in their application of it, “invaded rights which * * * are reserved by the Constitution to the several States.”[552]

Justice Butler, joined by Justice McReynolds, concurred in the result, because in his view Tompkins was not entitled to damages under [Pg 607]general law, but he deprecated the reversal of Swift v. Tyson. He also objected to the decision of the constitutional issue as unnecessary.[553] Justice Reed likewise concurred, but thought it questionable to raise the constitutional issue. “If the opinion, [said he], commits this Court to the position that the Congress is without power to declare what rules of substantive law shall govern the federal courts, that conclusion also seems questionable.”[554]

Extension of the Tompkins Rule

Since 1938 the federal courts have been most assiduous in following the decisions of the State courts in diversity cases. The decisions followed, moreover, include not only those of the highest State courts, but those also of intermediate courts. In West v. American Telephone and Telegraph Co.[555] the Supreme Court held that a decision of an Ohio county court of appeals which the Supreme Court of the State had declined to review was binding on the lower federal courts regardless of the desirability of the rule of the decision or of the belief that the highest court of the State might establish a different rule in future litigation. In Fidelity Union Trust Co. v. Field[556] the Court went even farther and ruled that the lower courts were bound to follow the decisions of two chancery courts in New Jersey although there had been no appeal to the highest State court, and obviously other New Jersey courts were not bound by the decisions of two vice-chancellors. The anomaly of this decision was partially removed in King v. Order of United Commercial Travelers,[557] where the Court held that the federal courts were not bound by the decision of a court of first instance of South Carolina, which was the only decision applicable to the interpretation of the insurance policy in dispute. Nor is this the whole story. In the event of a State Supreme Court’s reversal of its earlier decisions the federal courts are bound by the latest decision. Hence a judgment of a federal district court, correctly applying State law as interpreted by the State’s highest court, must be reversed on appeal if the State court in the meantime has reversed its earlier rulings and adopted a contrary interpretation. Though aware of possible complications from this rule, the Court insisted that “until such time as a case is no longer sub judice, the duty rests upon the federal courts to apply the Rules of Decision statute in accordance with the then controlling decision of the highest state court.”[558]

Although the Rules of Decision Act[559] requires the federal courts to follow State decisions only in civil cases, the application of the Tompkins rule has been extended to suits in equity.[560] In Guaranty Trust Co. v. York,[561] the Court held that when a statute of limitations barred recovery in a State court, a federal court sitting in equity could not entertain the suit because of diversity of citizenship. This ruling was based on the express premise that “a federal court adjudicating a State-created right solely because of the diversity of citizenship of the parties is for that purpose, in effect, only another court of the State, * * * “[562] It was held to be immaterial, therefore, whether statutes of limitations were designated as substantive or procedural. The Tompkins Case, it was said, was not an endeavor to formulate scientific legal terminology. “In essence, the intent of that decision was to insure that, in all cases where a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court.”[563]

Controversies Between Citizens of the Same State Claiming Lands Under Grants of Different States

This clause was not in the first draft of the Constitution, but was added without objection.[564] Undoubtedly the motivation for this extension of the judicial power was the existence of boundary disputes affecting ten States at the time the Philadelphia Convention met. [Pg 609]With the Northwest Ordinance of 1787, the ultimate settlement of boundary disputes between States, and the passing of land grants by States, this clause, never productive of many cases, has become obsolete.[565]

Controversies Between a State, or the Citizens Thereof, and Foreign States, Citizens or Subjects

The scope of this jurisdiction has been limited both by judicial decisions and the Eleventh Amendment. By judicial application of the Law of Nations a foreign State is immune from suit in the federal courts without its consent,[566] an immunity which extends to suits brought by States of the American Union.[567] Conversely, the Eleventh Amendment has been construed to bar suits by foreign States against a State of the American Union.[568] Consequently, the jurisdiction conferred by this clause comprehends only suits brought by a State against citizens or subjects of foreign States, by foreign States against American citizens, citizens of a State against the citizens or subjects of a foreign State, and by aliens against citizens of a State.


The privilege of a recognized foreign State to sue in the courts of a foreign State upon the principle of comity is recognized by both International Law and American Constitutional Law.[569] To deny a sovereign this privilege “would manifest a want of comity and friendly feeling.”[570] Although national sovereignty is continuous, a suit in behalf of a national sovereign can be maintained in the courts of the United States only by a government which has been recognized by the political branches of our own government as the authorized government of the foreign State.[571] Once a foreign government avails itself of the privilege of suing in the courts of the United States, it subjects itself to the procedure and rules of decision governing those courts and accepts whatever liabilities the Court may decide to be a reasonable incident of bringing the suit.[572] Also, certain of the benefits extending to the domestic sovereign do not extend to a foreign sovereign suing in the courts of the United States. Thus a foreign sovereign does not receive the benefit of the rule which exempts the United States [Pg 610]and its member States from the operation of the statute of limitations, because considerations of public policy back of the rule are regarded as absent.[573]

Indian Tribes

Within the terms of article III, an Indian tribe is not a foreign State and hence cannot sue in the courts of the United States. This rule was applied in the case of Cherokee Nation v. Georgia,[574] where Chief Justice Marshall conceded that the Cherokee Nation was a State, but not a foreign State, being a part of the United States and dependent upon it. Other passages of the opinion specify the elements essential to a foreign State for purposes of jurisdiction, such as sovereignty and independence.


As in cases of diversity jurisdiction, suits brought to the federal courts under this category must clearly state in the record the nature of the parties. As early as 1809 the Supreme Court ruled that a federal court could not take jurisdiction of a cause where the defendants were described in the record as “late of the district of Maryland,” but were not designated as citizens of Maryland, and plaintiffs were described as aliens and subjects of the United Kingdom.[575] The meticulous care manifested in this case appeared twenty years later when the Court narrowly construed section 11 of the Judiciary Act of 1789, vesting the federal courts with jurisdiction where an alien was a party, in order to keep it within the limits of this clause. The judicial power was further held not to extend to private suits in which an alien is a party, unless a citizen is the adverse party.[576] This interpretation was extended in 1870 by a holding that if there is more than one plaintiff or defendant, each plaintiff or defendant must be competent to sue or liable to suit.[577] These rules, however, do not preclude a suit between citizens of the same State if the plaintiffs are merely nominal parties and are suing on behalf of an alien.[578]

Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

The Original Jurisdiction of the Supreme Court


Acting on the assumption that its existence is derived directly from the Constitution, the Supreme Court has held since 1792 that its original jurisdiction flows directly from the Constitution and is therefore self-executing without further action by the Congress. In the famous case of Chisholm v. Georgia[579] the Supreme Court entertained an action of assumpsit against Georgia by a citizen of another State. Although the 13th section of the Judiciary Act of 1789 invested the Supreme Court with original jurisdiction in suits between a State and citizens of another State, it did not authorize actions of assumpsit in such cases, nor did it prescribe forms of process for the Court in the exercise of original jurisdiction. Over the dissent of Justice Iredell, the Court in opinions by Chief Justice Jay and Justices Blair, Wilson, and Cushing, sustained its jurisdiction and its power, in the absence of Congressional enactments, to provide forms of process and rules of procedure. So strong were the States’ rights sentiments of the times that Georgia refused to appear as a party litigant, and other States were so disturbed that the Eleventh Amendment was proposed forthwith and ratified. This amendment, however, did not affect the direct flow of original jurisdiction to the Court, which continued to take jurisdiction of cases to which a State was party plaintiff and of suits between States without specific provision by Congress for forms of [Pg 612]process. By 1861 Chief Justice Taney could enunciate with confidence, after a review of the precedents, that in all cases where original jurisdiction is given by the Constitution, the Supreme Court has authority “to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the Court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice.”[580]


Since the original jurisdiction is derived directly from the Constitution, it follows logically that Congress can neither restrict it nor, as was held in the great case of Marbury v. Madison,[581] enlarge it. In holding void the 13th section of the Judiciary Act of 1789, which was interpreted as giving the Court power to issue a writ of mandamus in an original proceeding, Chief Justice Marshall declared that “a negative or exclusive sense” had to be given to the affirmative enunciation of the cases to which original jurisdiction extends.[582] While the rule that the Supreme Court is vested with original jurisdiction by the Constitution and that this jurisdiction cannot be extended or restricted deprives Congress of any power to define it, it allows a considerable latitude of interpretation to the Court itself. In some cases, as in Missouri v. Holland,[583] the Court has manifested a tendency toward a liberal construction of original jurisdiction; in others, as in Massachusetts v. Mellon,[584] it has placed a narrow construction upon the grant through the device of a restrictive interpretation of cases and controversies; and in still other cases, as in California v. Southern Pacific Co.,[585] it has stated that its original jurisdiction “is limited and manifestly to be sparingly exercised, and should not be expanded by construction.”


Although Congress can neither enlarge nor restrict the original jurisdiction of the Supreme Court, it may vest concurrent jurisdiction in the lower federal courts in cases over which the Supreme Court has original jurisdiction.[586] Thus among the grounds given for the decision in Wisconsin v. Pelican Insurance Co.,[587] that the Court had no original jurisdiction of an action by a State to enforce a judgment for a pecuniary penalty awarded by one of its own courts, was the provision of the 13th section of the Judiciary Act of 1789[588] that “the Supreme Court shall have exclusive jurisdiction of controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction.” Speaking of that act with particular reference to this section, Justice Gray declared that it “was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.”[589] In cases affecting consuls, moreover, the original jurisdiction of the Supreme Court is shared concurrently with State courts unless Congress by positive action makes such jurisdiction exclusive.[590]

The Appellate Jurisdiction of the Supreme Court


Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to control by Congress in the exercise of the broadest discretion. Although the provisions of article III seem, superficially at least, to imply that its appellate jurisdiction would flow directly from the Constitution until Congress should by positive enactment make exceptions to it, rulings of the Court since 1796 establish the contrary rule. Consequently, before the Supreme Court can exercise appellate jurisdiction, an act of Congress must have bestowed it, and affirmative bestowals of jurisdiction are interpreted as exclusive in nature so as to constitute an exception to all other cases. This rule was first applied in Wiscart v. Dauchy[591] where the Court held that in the absence of a statute prescribing a rule for appellate proceedings, the Court lacked jurisdiction. It was further stated that if a rule were prescribed, the Court could not depart from it. Fourteen years later Chief Justice Marshall observed for the Court that its appellate jurisdiction is derived from the Constitution, but proceeded nevertheless to hold that an affirmative bestowal of appellate jurisdiction by Congress, which made no express exceptions to it, implied a denial of all others.[592]

The McCardle Case

The power of Congress to make exceptions to the court’s appellate jurisdiction has thus become, in effect, a plenary power to bestow, withhold, and withdraw appellate jurisdiction, even to the point of its abolition. And this power extends to the withdrawal of appellate jurisdiction even in pending cases. In the notable case of Ex parte McCardle,[593] a Mississippi newspaper editor who was being held in custody by the military authorities acting under the authority of the Reconstruction Acts filed a petition for a writ of habeas corpus in the circuit court for Southern Mississippi. He alleged unlawful restraint and challenged the validity to the Reconstruction statutes. The writ was issued, but after a hearing the prisoner was remanded to the custody of the military authorities. McCardle then appealed to the Supreme Court which denied a motion to dismiss the appeal, heard arguments on the merits of the case, and took it under advisement. Before a conference could be held, Congress, fearful of a test of the Reconstruction Acts, enacted a statute withdrawing appellate jurisdiction from the Court in certain habeas corpus proceedings.[594] The Court then proceeded to dismiss the appeal for want of jurisdiction. [Pg 615]Chief Justice Chase, speaking for the Court said: “Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is the power to declare the law and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause.”[595]

Although the McCardle Case goes to the ultimate in sustaining Congressional power over the court’s appellate jurisdiction and although it was born of the stresses and tensions of the Reconstruction period, it has been frequently reaffirmed and approved.[596] The result is to vest an unrestrained discretion in Congress to curtail and even abolish the appellate jurisdiction of the Supreme Court, and to prescribe the manner and forms in which it may be exercised. This principle is well expressed in The “Francis Wright”[597] where the Court sustained the validity of an act of Congress which limited the court’s review in admiralty cases to questions of law appearing on the record. A portion of the opinion is worthy of quotation: “Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not. To our minds it is no more unconstitutional to provide that issues of fact shall not be retried in any case, than that neither issues of law nor fact shall be retried in cases where the value of the matter in dispute is less than $5,000. The general power to regulate implies the power to regulate in all things. The whole of a civil appeal may be given, or a part. The constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. Everything beyond that is a matter of legislative discretion.”[598]

The Power of Congress To Regulate the Jurisdiction of the Lower Federal Courts


The power of Congress to vest, withdraw, and regulate the jurisdiction of the lower federal courts is derived from the power to create tribunals under article I, the necessary and proper clause, and the clause in article III, vesting the judicial power in the Supreme Court and such inferior courts as “the Congress may from time to time ordain and establish.” Balancing these provisions, however, are the phrases in article III to the effect that the judicial power “shall be vested” in courts and “shall extend” to nine classes of cases and controversies and the question of what is the force of the word “shall.” In Martin v. Hunter’s Lessee,[599] Justice Story declared obiter that it was imperative upon Congress to create inferior federal courts and vest in them all the jurisdiction they were capable of receiving. This dictum was criticized by Justice Johnson in his dissent, in which he contended that the word “shall” was used “in the future sense,” and had “nothing imperative in it.”[600] And for that matter in another portion of his opinion Justice Story expressly recognized that Congress may create inferior courts and “parcel out such jurisdiction among such courts, from time to time at their own pleasure”;[601] and in his Commentaries he took a broad view of the power of Congress to regulate jurisdiction.[602]


Neither legislative construction nor judicial interpretation has sustained Justice Story’s position in Martin v. Hunter’s Lessee. The Judiciary Act of 1789, which was a contemporaneous interpretation of the Constitution by the Congress, rests on the assumption of a broad discretion on the part of Congress to create courts and to grant jurisdiction to and withhold it from them. This act conferred original jurisdiction upon the district and circuit courts in certain cases, but by no means all they were capable of receiving. Thus suits at the common law to which the United States was a party were limited [Pg 617]by the amount in controversy. Except for offenses against the United States, seizures and forfeitures made under the impost, navigation, or trade laws of the United States, and suits by aliens under International Law or treaties, that whole group of cases involving the Constitution, laws, and treaties of the United States was withheld from the jurisdiction of the district and circuit courts,[603] with the result that original jurisdiction in these cases was exercised by the State courts subject to appeal to the Supreme Court under section 25. Jurisdiction was vested in the district courts over admiralty and maritime matters and in the circuit courts over suits between citizens of different States where the amount exceeded $500, or suits to which an alien was a party.[604] The act of 1789 empowered the courts to issue writs, to require parties to produce testimony, to punish contempts, to make rules, and to grant stays of execution.[605] Finally, equity jurisdiction was limited to those cases where a “plain, adequate, and complete remedy” could not be had at law.[606]

This care for detail in conferring jurisdiction upon the inferior courts and vesting them with ancillary powers in order to render such jurisdiction effective is of the utmost significance in the later development of the law pertaining to Congressional regulation of jurisdiction, inasmuch as it demonstrates conclusively that a majority of the members of the first Congress regarded positive action on the part of Congress to be necessary before jurisdiction and judicial powers could be exercised by courts of its own creation. Ten years later this practical construction of article III was accepted by the Supreme Court in Turner v. Bank of North America.[607] The case involved an attempt to recover on a promissory note in a diversity case contrary to § 11 of the act of 1789 which forbade diversity suits involving assignments unless the suit was brought before the assignment was made. Counsel for the bank argued that the circuit courts were not inferior courts and that the grant of judicial power by the Constitution was a direct grant of jurisdiction. This argument evoked questions from Chief Justice Ellsworth and the following statement from Justice Chase: “The notion has been frequently entertained, that the federal courts derive their power immediately from the Constitution; but the political truth is, that the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise; and if Congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every [Pg 618]subject, in every form, which the Constitution might warrant.”[608] The Court applied § 11 of the Judiciary Act and ruled that the circuit court lacked jurisdiction.

Eight years later Chief Justice Marshall in distinguishing between common law and statutory courts declared that “courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction.”[609] This rule was reaffirmed in the famous case of United States v. Hudson and Goodwin[610] on the assumption that the power of Congress to create inferior courts necessarily implies “the power to limit the jurisdiction of those Courts to particular objects.”[611] After pointing to the original jurisdiction which flows immediately from the Constitution, Justice Johnson asserted: “All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer.”[612] To the same affect is Rhode Island v. Massachusetts[613] where Justice Baldwin declared that “the distribution and appropriate exercise of the judicial power must therefore be made by laws passed by Congress and cannot be assumed by any other department * * *”

A more sweeping assertion of Congressional power over jurisdiction was made by the Supreme Court in Cary v. Curtis,[614] which bears more directly upon the issue than some of the earlier cases. Here counsel had argued that a statute which made final the decisions of the Secretary of the Treasury in tax disputes was unconstitutional in that it deprived the federal courts of the judicial power vested in them by the Constitution. In reply to this argument the Court speaking through Justice Daniel declared: “The judicial power of the United States * * * is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) * * * and of investing them with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good.” Continuing, Justice Daniel said: “It follows then that courts created by statute, must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may clearly be denied to them.”[615]

The principles of Cary v. Curtis were reiterated five years later in Sheldon v. Sill[616] where the validity of § 11 of the Judiciary Act of 1789 was directly questioned. The assignee of a negotiable instrument filed a suit in a circuit court even though no diversity of citizenship existed as between the original parties to the mortgage. The circuit court entertained jurisdiction in spite of the prohibition against such suits in § 11 and ordered a sale of the property in question. On appeal to the Supreme Court, counsel for the assignee contended that § 11 was void because the right of a citizen of any State to sue citizens of another in the federal courts flowed directly from article III and Congress could not restrict that right. The Supreme Court unanimously rejected these contentions and held that since the Constitution had not established the inferior courts or distributed to them their respective powers, and since Congress had the authority to establish such courts, it could define their jurisdiction and withhold from any court of its own creation jurisdiction of any of the enumerated cases and controversies in article III.[617] Sheldon v. Sill has been cited, quoted, and reaffirmed many times.[618] Its effect and that of the cases following it is that as regards the jurisdiction of the lower federal courts two elements are necessary to confer jurisdiction: first, the Constitution must have given the courts the capacity to receive it, and second, an act of Congress must have conferred it. The manner in which the inferior federal courts acquire jurisdiction, its character, the mode of its exercise, and the objects of its operation are remitted without check or limitation to the wisdom of the legislature.[619]


The plenary power of Congress to withhold and restrict jurisdiction was given renewed vitality by the Emergency Price Control Act of 1942[620] and the cases arising therefrom. Fearful that the price control program might be effectively nullified by injunctions, Congress provided for a special court and special procedures for contesting the validity of price regulations. In Lockerty v. Phillips[621] the Supreme Court sustained the power of Congress to confine equity jurisdiction, to restrain enforcement of the act to the specially created Emergency Court of Appeals, with appeal to the Supreme Court. The Court went much farther than this in Yakus v. United States,[622] and held that the provision of the act conferring on the Emergency Court of Appeals and the Supreme Court exclusive jurisdiction to determine the validity of any regulation or order, and providing that no court should have jurisdiction or power to consider the validity of any regulation, precluded the plea of invalidity of such a regulation as a defense to its violation in a criminal proceeding in a district court. Although Justice Rutledge protested in his dissent that this provision of the act conferred jurisdiction on the district courts from which essential elements of the judicial power had been abstracted,[623] Chief Justice Stone declared for the majority that the provision presented no novel constitutional issue.


The authority of Congress to regulate the jurisdiction of the lower federal courts includes that of controlling the power of the courts to issue writs in cases where they have jurisdiction and to regulate other ancillary powers generally.[624] Among some of the more notable restrictions in this regard are the limitations on the power of courts to issue injunctions, particularly in the field of taxation and labor disputes. By the act of March 2, 1867,[625] Congress provided that “no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court.” There have never been any constitutional doubts concerning this provision, which was strictly applied for many years[626] until 1916 when the Supreme Court began to make exceptions[627] which in the later cases[628] made the provision so inefficacious that by October, 1935, more than 1600 suits had been filed to restrain the collection of processing taxes under the Agricultural Adjustment Act.[629] None of these cases, however, raises any issue other than that of statutory interpretation, and since 1936 the Court has interpreted the exceptions to the statute somewhat more strictly.[630]

Injunctions in Labor Disputes; the Norris-LaGuardia Act

The Norris-LaGuardia Act of 1932[631] is significant for its restrictions on the powers of the federal courts to issue injunctions in labor disputes in the form of requirements for hearings followed by findings that unlawful acts are threatened and will be committed unless restrained, or if already committed will be continued; that substantial injury to the property of complainants will ensue; that as to the relief granted greater injury will be inflicted upon complainants by denying relief than will be inflicted on defendants by granting it; that the complainants have no adequate remedy at law; and, finally, that the public officials charged with the protection of complainants’ property are either unable or unwilling to do so. This act has been scrupulously applied by the Supreme Court, which has implicitly sustained its constitutionality by construing its restrictions liberally[632] in every case except United States v. United Mine Workers,[633] where it was held that the statute did not apply to suits brought by the United States to enjoin a strike in the coal industry while the Government technically was operating the mines.


Although the cases point to a plenary power in Congress to withhold jurisdiction from the inferior courts and to withdraw it at any time after it has been conferred, even as applied to pending cases, there are a few cases in addition to Martin v. Hunter’s Lessee[634] which slightly qualify the cumulative effect of this impressive array of precedents. As early as 1856, the Supreme Court in Murray v. Hoboken Land and Improvement Co.[635] distinguished between matters of private right which from their nature were the subject of a suit at the common law, equity, or admiralty and cannot be withdrawn from judicial cognizance and those matters of public right which, though susceptible of judicial determination, did not require it and which might or might not be brought within judicial cognizance. Seventy-seven years later the Court elaborated this distinction in Crowell v. Benson,[636] which involved the finality to be accorded administrative findings of jurisdictional facts in compensation cases. In holding that an employer was entitled to a trial de novo of the constitutional jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, Chief Justice Hughes, speaking for the majority fused the due process clause of Amendment V and article III, but emphasized that the issue ultimately was “rather a question of the appropriate maintenance of the Federal judicial power,” and “whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency * * * for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend.” To do so, contended the Chief Justice, [Pg 623]”would be to sap the judicial power as it exists under the Federal Constitution and to establish a government of a bureaucratic character alien to our system, wherever constitutional rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law.”[637]


The power of Congress to confer jurisdiction on the lower federal courts is qualified by the rule that before Congress can vest jurisdiction in the inferior courts, they must have the capacity to receive it. The capacity of the lower judiciary to receive jurisdiction is defined in the enumeration of cases and controversies in article III. Consequently in vesting courts with jurisdiction, Congress cannot go beyond this enumeration.[638] It follows from the rule that constitutional courts can perform only judicial functions that Congress, in vesting courts with jurisdiction, cannot impose upon them nonjudicial duties such as administering pensions,[639] deciding issues subject to later executive or legislative action,[640] rendering advisory opinions, or opinions which are not final and conclusive upon the parties,[641] or taking jurisdiction of matters from which any essential element of the judicial power has been abstracted.[642] To be sure, Congress may clothe some matters of an administrative nature with the mantle of a case or controversy and thereby make it a matter of judicial cognizance, as it has done with naturalization proceedings,[643] the administration of certain laws relating to the expulsion of aliens,[644] the limited administration of funds received from the Government of Mexico to compensate American citizens for claims against that government,[645] and, of course, the traditional administration of bankrupt enterprises through the medium of a receiver.

[Pg 624]Federal-State Court Relations


The American Federal System with its dual system of courts, exercising concurrent jurisdiction in a number of classes of cases, presents numerous possibilities of inter-court conflicts and interference. Subject to Congressional enactments to the contrary, the State courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in article III except suits between States, those to which the United States is a party, those to which a foreign state is a party, and cases of admiralty and maritime jurisdiction. Even in admiralty cases the State courts, though unable to exercise any portion of admiralty or maritime jurisdiction by delegation or otherwise,[646] may have a concurrent jurisdiction when the same issues assume the form of a case at common law.[647] In addition to conflicts arising out of concurrent jurisdiction, relations between federal and State courts are exposed to other frictions, such as injunctions in one jurisdiction restraining judicial processes in another, the use of the writ of habeas corpus by a court of concurrent jurisdiction to release persons in custody of another, and the refusal by State courts to comply with orders of the Supreme Court. The relations between federal and State courts are governed in part by Constitutional Law with respect to State court interference with the federal courts and State court refusal to comply with the judgments of federal tribunals, by statutes as regards interference by federal courts with those of the [Pg 625]States, and by self-imposed rules of comity applied for the avoidance of unseemly conflicts.


The refusal of State courts to make returns on writs of errors issued by the Supreme Court has already been noted in connection with the disobedience of the Virginia courts in Martin v. Hunter’s Lessee[648] and Cohens v. Virginia[649] and in that of the Wisconsin court in Ableman v. Booth.[650] More spectacular disobedience to federal authority arose out of the Cherokee Indian case involving actions of Georgia and its courts. In the first of these the Supreme Court had issued a writ of error to the Georgia Supreme Court to review the conviction of Corn Tassel for the murder of another Cherokee Indian. The writ was served, but before a hearing could be held Corn Tassel was executed on the day originally set for punishment contrary to the federal law that a writ of error superseded sentence until the appeal was decided. This action ensued as a result of the legislature’s approval of the governor’s policy that he would permit no interference with Georgia’s courts by orders of the Supreme Court and would resist by force any attempt to enforce them with all the forces at his command.[651]

Worcester v. Georgia

Two years later Georgia renewed its defiance of the Supreme Court in Worcester v. Georgia[652] which involved the conviction of two missionaries for residing among the Indians without a license. The Supreme Court reversed the conviction on the ground that the State had no jurisdiction over the Cherokee reservations and ordered Worcester’s discharge in a special mandate to the superior court of Gwinnett County. The State court ignored the mandate and once again the governor of the State announced that he would meet such usurpation by the Supreme Court with determined resistance. Consequently, Worcester and Butler remained in jail until they agreed to abandon further efforts for their discharge by federal authority in the form of a writ of error, whereupon the governor pardoned them on the condition that they leave the State.


Aside from these more dramatic assertions of independence of federal courts, State court interference with the federal judiciary has occurred for the most part in conflicts of jurisdiction which affect only the lower federal courts as courts of concurrent jurisdiction and in attempts to release persons in federal custody. To the extent that this phase of federal-state relations is not governed by statute or the supremacy clause of article VI, it is governed by comity, a self-imposed rule of judicial morality whereby independent tribunals of concurrent or coordinate jurisdiction exercise a mutual restraint in order to prevent interference with each other and to avoid collisions of authority. Although the Court on one occasion has stated that the principle of comity is not a rule of law but “one of practice, convenience, and expediency”[653] which persuades, but does not command, it has also declared that in the American Federal System it has come to have “a higher sanction than the utility which comes from concord” and has been converted into a principle “of right and of law, and therefore of necessity.”[654] As developed and applied by the Supreme Court the rule of comity is exemplified in three classes of cases: First, those in which a court has acquired jurisdiction of the res or the possession of property and another court interferes with that jurisdiction or possession; second, those in which a court has acquired jurisdiction or custody of the person and another interferes with such jurisdiction or custody, most frequently by discharges from custody in habeas corpus proceedings; and, third, those in which injunctions are used to stay proceedings in another court or to enjoin official action before the courts of proper jurisdiction have had an opportunity to adjudicate the issue.


As applied by the Supreme Court in cases involving concurrent jurisdiction the principle of comity means that when the jurisdiction of a court and the right of a plaintiff to prosecute a suit therein have attached and when a court has acquired constructive possession of property, such jurisdiction cannot be taken away or obstructed by proceedings in another court, nor can the possession of the property be disturbed by proceedings in another court; and the court which has first acquired jurisdiction of the cause or the possession of the res has exclusive jurisdiction to hear and determine the case and all controversies relating thereto, provided that the subject matter of the suit, the remedies sought, and the parties to it are the same, and provided further that it is not necessary for the federal courts to exercise [Pg 627]jurisdiction in order to enforce the supremacy of the Constitution and laws of the United States.[655]


It has long been settled as a general rule that State courts have no power to enjoin proceedings or judgments of the federal courts.[656] In United States ex rel. Riggs v. Johnson County[657] this rule was attributed to no paramount jurisdiction of the federal courts, but rather to the complete independence of the State and federal courts in their spheres of action. Like many of the rules governing federal-state court relations, this rule is not absolute, as shown by a case arising in Pennsylvania. Two surviving trustees had filed an account for themselves and a deceased trustee in a court of common pleas. Thereafter, two of the five beneficiaries sued the two trustees and the deceased trustee in a federal district court, charging mismanagement and praying for an accounting and restitution and removal of the trustees. The Supreme Court held that the State court upon the filing of the account acquired jurisdiction over the trust quasi in rem exclusively and therefore sustained the State court’s injunction restraining the parties from further proceeding in the federal court while simultaneously holding that the district court could not enjoin the parties from proceeding in the State court.[658] The power of a State court to enjoin parties from proceeding in a federal court obviously does not include that of enjoining a federal court.


The discretion of the federal courts to enjoin proceedings in State courts has not been left exclusively to doctrines of comity, for since 1793 the federal courts have been prohibited by statute from restraining proceedings in State courts.[659] Initially this statute was applied with strict literalness in condemning attempts by the lower federal courts to enter exceptions to it,[660] but gradually the Supreme Court began to interpret the provision as not prohibitive of all injunctions. First, it has been held that an injunction will lie against proceedings in a State court to protect the lawfully acquired jurisdiction of a federal court against impairment or defeat.[661] This exception is notably applicable to cases where the federal court has taken possession of property which it may protect by injunction from interference by State courts.[662] Second, in order to prevent irreparable damages to persons and property the federal courts may restrain the legal officers of a State from taking proceedings in State courts to enforce State legislation alleged to be unconstitutional.[663] Nor does the prohibition of § 265 of the Judicial Code [28 U.S.C.A. § 2283] prevent injunctions restraining the execution of judgments in State courts obtained by fraud,[664] the restraint of proceedings in State courts in cases which have been removed to the federal courts,[665] nor, until lately, to proceedings in State courts to relitigate issues previously adjudicated and finally settled by decrees of a federal court.[666]

In Toucey v. New York Life Insurance Co.,[667] Justice Frankfurter, as spokesman for the Court, reviewed earlier cases and in effect overruled the exception of suits designed to relitigate issues previously adjudicated by a federal court, and held that a suit for injunction would not lie to restrain a proceeding in a State court on the ground that the claim had been previously adjudicated. In so doing he placed this issue in its proper context of res judicata. In addition he went beyond the requirements of the case at bar to cast doubts upon the exception of suits brought to enjoin the execution of judgments of State courts obtained by fraud. Furthermore, by regarding the exception of suits restraining proceedings in State courts in cases which had been removed to the federal courts as emanating from the removal acts, Justice Frankfurter concluded that only one exception had been made by judicial construction to § 265, [28 U.S.C.A. § 2283] namely, that permitting injunction of proceedings in State courts to protect the possession of property previously acquired.[668] The rule of this case was extended on the same day to forbid an injunction to restrain proceedings in a State court in support of jurisdiction previously begun earlier and still pending in the federal court.[669]

Federal Injunctions of State Official Action

Injunctions by federal courts restraining State officials from enforcing unconstitutional State statutes constitute an indirect interference with State courts and a serious obstruction to the administration of public policy. From Osborn v. Bank of the United States,[670] which was the first case in which an injunction was used to restrain State action under an unconstitutional statute, to Ex parte Young[671] the Supreme Court established firmly the rule that jurisdiction exists in the federal courts to restrain the enforcement of unconstitutional State statutes and to enjoin State officials charged with the duty of enforcing State laws from bringing criminal or civil proceedings to enforce an invalid statute. Until Ex parte Young, the Court had been careful to sustain the jurisdiction of the lower federal courts to enjoin the enforcement of unconstitutional State legislation only after a finding of unconstitutionality,[672] but Ex [Pg 630]parte Young abandoned this rule by holding that the enforcement of a State statute by the attorney general of the State through proceedings in State courts could be enjoined pending the determination of its constitutionality.

Ex Parte Young

Although a suit to restrain the attorney general of a State from proceeding in the courts of the State to enforce a State law not declared unconstitutional would seem effectively to stay proceedings in a State court, Justice Peckham drew a distinction between the power to enjoin the attorney general and other law officers as individuals and a suit against a State court on the ground that the former does not include the “power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our Government.”[673] Justice Harlan, not convinced by this distinction, characterized the suit as an attempt “to tie the hands of the State so that it could not in any manner or by any mode of proceeding in its own courts, test the validity of the statutes and orders in question.”[674]

Although the rigor of the rule of Ex parte Young has been mitigated by subsequent decisions[675] and the mode of its exercise somewhat narrowed by statute, it has not been overruled and remains a source of friction in federal-state relations. Simultaneously, however, § 266 (see note 2 above) has been construed strictly as designed “to secure the public interest in ‘a limited class of cases of special importance,'”[676] and not “a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such.”[677]


The most spectacular type of State court interference with federal courts has been their use of the writ of habeas corpus to release persons in federal custody. Between 1815 and 1861, judges in nine State courts asserted the right to release persons in federal custody,[678] and the issue was not finally settled until 1859, when Ableman v. Booth[679] was decided. Here a Justice of the Wisconsin Supreme Court first released a prisoner held by a United States commissioner on charges of violating the fugitive slave law. After the trial, conviction, and sentence of the defendant, the State supreme court issued a second writ of habeas corpus and after hearing ordered the release of the prisoner. The national Supreme Court then issued a writ of error to the State court which refused to make a return. In an opinion based in part on national supremacy and in part on dual sovereignty, Chief Justice Taney, speaking for the Court, laid down the absolute rule that no State court has the power to release prisoners held in custody under the authority of the United States.[680]

Notwithstanding the strong language of the Court in Ableman v. Booth, the Wisconsin courts thirteen years later again asserted the power to release persons in federal custody by directing the release of an enlisted soldier in the custody of a recruiting officer of the United States Army. Once again the Court held that a State court has no authority to issue a writ of habeas corpus for the release of persons held under the authority or claim and color of authority of the United States. Justice Field for the Court went on to lay down the generalization that neither government “can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority.”[681]


Another potential source of friction between State and federal courts is the use of the writ of habeas corpus or of removal proceedings in the federal courts to release persons from State custody. As has already been indicated the rule of national supremacy deprives the courts of the States of any power to release persons held in federal custody. Recourse to habeas corpus or removal proceedings in the federal courts to release persons in the custody of State courts is governed by statute and comity. The Judiciary Act of 1789[682] conferred jurisdiction upon the federal courts to issue writs of habeas corpus to release persons in State custody only for the purpose of having them appear as witnesses in federal proceedings. The same act also provided for the removal before trial into a federal court of civil cases arising under the laws of the United States. Both branches of this jurisdiction were broadened as a result of the nullification movement in South Carolina so as to make either removal or habeas corpus available to persons held in State custody for any act done or omitted in pursuance of the laws of the United States.[683] These recourses were in 1842 made available to aliens restrained by State authority in violation of their international rights,[684] and in 1867 to all persons restrained in violation of the Constitution, laws, or treaties of the United States.[685] In substance all these acts still remain on the statute book.[686]

Of these provisions the most important are those governing the release of persons held under State authority for an act done or omitted under federal authority and persons held in violation of the Constitution, laws, or treaties of the United States. In the leading case of Tennessee v. Davis,[687] decided in 1880, the question was faced of their constitutionality. Davis was a federal revenue officer who, in the discharge of his duties, killed a man, and was arraigned by Tennessee for murder. He thereupon applied for removal of his case to a federal court under the act of 1867. To Tennessee’s evocation of the doctrine of State sovereignty, the Court rejoined with a ringing assertion of the principle of National Supremacy. Subsequently, the same provisions have been construed to procure the release of a deputy United States marshal from State custody for killing a man while protecting a Justice of the Supreme Court under a Presidential order which was regarded as a “law” of the United States;[688] the release of an election official held under State authority for perjury on the ground that jurisdiction to punish a false witness belonged to the [Pg 633]federal courts in this instance;[689] and the release of a collector of internal revenue held in Kentucky for his refusal to file copies of his official papers with a State court.[690] Similarly, the governor of a national home for disabled soldiers was released from Ohio custody for serving oleomargarine in the home in violation of an Ohio statute.[691] A more extreme exercise of habeas corpus jurisdiction is illustrated by Hunter v. Wood[692] where a ticket agent of a railroad held in State custody for an overcharge on a ticket was released because prior to his trial in the State court, a United States circuit court had enjoined the enforcement of the statute. The element common to all of these cases is the supremacy of the National Government and the inability of the States through judicial proceedings or otherwise to obstruct the enforcement of federal authority. The doctrine of comity is inapplicable in this category of cases.


On the other hand, in Ex parte Royall,[693] decided in 1886, the Court held that the jurisdiction of the lower federal courts in the above category of cases involved no duty to release persons from State custody but only a discretion to do so. Such discretion, the Court declared, “should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between the courts equally bound to guard and protect rights secured by the Constitution.”[694] In pursuance of these principles the Court has subsequently formulated rules to the effect that mere error in the prosecution and trial of a suit cannot confer jurisdiction upon a federal court to review the proceedings upon a writ of habeas corpus;[695] that the writ of habeas corpus cannot be substituted for the writ of error, however serious the errors committed by the State court;[696] that except in extreme and urgent cases the federal courts will not discharge a prisoner in State custody prior to final disposition of the case in the State courts, where the prisoner must first exhaust all State remedies; and even after the State courts have acted, the federal courts will usually leave the prisoner to the usual and orderly procedure of appeal to the Supreme Court. Furthermore, the Supreme Court will, in the exercise of a sound discretion, issue a writ of mandamus to compel a federal court to remand to a State court a prosecution of a federal officer removed to it, when it appears that the officer in question, in seeking removal, failed to make a candid, specific, and [Pg 634]positive explanation of his relation to the transaction giving rise to the crime for which he was indicted.[697]

Because of the care with which the discretion to issue writs of habeas corpus and to grant removals has been exercised by the federal courts to release persons from State custody there has been a minimum of friction in this area of federal-state relations, in contrast to that produced by their extensive use of injunctions to restrain the enforcement of State statutes. In Wade v. Mayo,[698] Justice Murphy cited the statistics of the Administrative Office of the United States Courts which revealed that during the fiscal years of 1943, 1944, and 1945, there was an average of 451 habeas corpus petitions filed each year in federal district courts by persons in State custody, and that of these petitions, an average of only six per year resulted in a reversal of the conviction and the release of the prisoner.


Moreover, cold comity may become on occasion warm cooperation between the two systems of courts. In Ponzi v. Fessenden,[699] the matter at issue was the authority of the Attorney General of the United States to consent to the transfer on a writ of habeas corpus of a federal prisoner to a State court to be there put on trial upon indictments there pending against him. The Court, speaking by Chief Justice Taft, while conceding that there was no express statutory authority [Pg 635]for such action, sustained it. Said the Chief Justice: “We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure.”[700]


The final phase of the relation of State courts has to do with their administration of federal law. Although it is the general rule that Congress cannot vest the judicial power of the United States in courts other than those created in pursuance of article III,[701] it has from the beginning of the National Government left to the State courts wide areas of jurisdiction which it might have vested exclusively in the federal courts, section 25 of the Judiciary Act of 1789 offering the supreme illustration. But going far beyond that, in the latter years of the eighteenth century and the early part of the nineteenth, Congress provided that suits by the National Government itself for fines, forfeitures, and penalties imposed by the revenue laws might be brought in State courts of competent jurisdiction as well as in the federal courts.[702] The Fugitive Slave Act of 1793,[703] the Naturalization Act of 1795,[704] and the Alien Enemies Act of 1798,[705] all imposed positive duties on State courts to enforce federal law. In 1799 the State courts were vested with jurisdiction to try criminal offenses against federal laws.[706] Extensive reliance was placed on State courts for the enforcement of the Embargo Acts;[707] and the act of March 3, 1815,[708] vested in State or county courts within or directly adjoining a federal tax-collection district cognizant “of all complaints, suits and prosecutions for taxes, duties, fines, penalties, and forfeitures.”

Retreat From This Practice

The indifference, however, of the State courts in New England to the Embargo Acts, the later hostility of courts in the northern States to the Fugitive Slave Act, and the refusal of courts in other States to administer federal law on the general principle that the courts of no nation are bound to enforce the penal laws of another,[709] all combined to produce strong sentiments against the use of State courts to administer federal law. These sentiments came in time to be incorporated in dissenting opinions,[710] and in 1842 in Prigg v. Pennsylvania[711] the Court definitely ruled that the States could not be compelled to enforce federal law. However, it was later held that this ruling did not prevent Congress from authorizing State courts to administer federal law or the action taken by them, if they choose to do so, from being valid.[712]

Resumption of the Practice

Near the end of the nineteenth century and afterwards Congress resumed its earlier practice of vesting concurrently the enforcement of federally created rights in the State and federal courts. The administration of Indian lands and the determination of rights to inherit allotted lands[713] marked the beginning of the restoration of the use of State courts to apply federal law, and the Federal Employers’ Liability Act of 1908[714] carried the practice further, not only by vesting concurrent jurisdiction in suits arising under the act, in State courts but also in prohibiting the removal of cases begun in State courts to the federal courts. Soon afterwards the Connecticut courts in a compensation case applied the State’s common law rules of liability contrary to the federal act and held that Congress could not require a State court to grant a remedy which local law did not permit. The Connecticut courts further held that enforcement of the federal act was contrary to the public policy of the State.[715] This decision was overruled in the Second Employers’ Liability Cases,[716] where it was held on the basis of national supremacy that rights arising under [Pg 637]the act can be enforced “as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion.” Subsequently, the Supreme Court has held that the rights created under this statute cannot be defeated by forms of local practice and that it is the duty of the Supreme Court to construe allegations in a complaint asserting a right under the liability act in order to determine whether a State court has denied a right of trial guaranteed by Congress.[717]


The issue of State obligation to administer federal law was presented most recently by Testa v. Katt.[718] This case arose out of the Emergency Price Control Act of 1942,[719] which provided that persons who had been overcharged in violation of the act or, in the alternative, the Price Administrator, could sue for treble damages in any court of competent jurisdiction. On the ground that one sovereign cannot enforce the penal laws of another, the Rhode Island Supreme Court ruled that the State courts had no jurisdiction of such suits. Assuming for the purposes of the case that the treble damage provision, was “penal” in nature, Justice Black for a unanimous Court proceeded to lay to rest the principle that a State court is not bound to enforce federal criminal law as an assumption flying “in the face of the fact that the States of the Union constitute a nation” and one which disregarded the supremacy clause. Justice Black also pointed to early acts of Congress and early decisions of the Supreme Court as establishing the rule that “State courts do not bear the same relation to the United States as they do to foreign countries.”[720] The Prigg case, though not overruled expressly, was ignored save for its citation in a footnote.[721]


In a series of cases the Court has been called upon to adjudicate between the power of a State to exclude foreign corporations from doing a purely domestic business within its borders and the right of such foreign corporations to resort to the federal courts. After deciding first one way and then the other, on the basis of some highly refined distinctions,[722] it finally, in 1922, came out unqualifiedly for the latter right. This was in Terral v. Burke Construction Co.,[723] in which an Arkansas statute requiring the cancellation of the license of a foreign corporation to do business in the State, upon notice that such corporation had removed a case to a federal court, was pronounced void. At the same time all contrary decisions were explicitly overruled.

Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. See Amendment VI, pp. 878-881.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.


The provisions and phraseology of this section are derived from the English Statute of Treasons enacted in 1351, in the reign of Edward III,[724] as an expression of grievance against the application of the doctrine of constructive treasons by the common law courts. The constitutional definition is, of course, much more restrictive than [Pg 639]the enumeration of treasons in the English statute, but like that statute, it is emphatically a limitation on the power of government to define treason and to prove its existence. The rigid and exclusive definition of treason takes from Congress all power to define treason and prescribes limitations on the power to prescribe punishment thereupon.


Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman,[725] which involved two of Burr’s confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying of war to the actual waging of war. “However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offences. The first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that * * * it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war.”[726] Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. “On the contrary, if it be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war.”[727] On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that “the crime of treason should not be extended by construction to doubtful cases” and concluded that no conspiracy for overturning the Government and “no enlisting of men to effect it, would be an actual levying of war.”[728]

The Burr Trial

Not long afterward the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling[729] denying a motion to introduce certain collateral evidence bearing on Burr’s activities is significant both for rendering the latter’s acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief this ruling held that Burr, who had not been present at the assemblage on Blennerhassett’s Island, could be convicted of advising or procuring a levying of war, only upon the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall’s pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.[730]


Since the Bollman case only three treason cases have ever reached the Supreme Court, all of them outgrowths of World War II and all charging adherence to enemies of the United States and giving them aid and comfort. In the first of these, Cramer v. United States,[731] the issue was whether the “overt act” had to be “openly manifest treason” or if it was enough if, when supported by other proper evidence, it showed the required treasonable intention.[732] The Court in a five-to-four [Pg 641]opinion by Justice Jackson in effect took the former view holding that “the two-witness principle” interdicted “imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,”[733] even though the single witness in question was the accused himself. “Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,”[734] Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer’s treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.


The Supreme Court sustained a conviction of treason, for the first time in its history in 1947 in Haupt v. United States.[735] Here it was held that although the overt acts relied upon to support the charge of treason—defendant’s harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant—were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: “No matter whether young Haupt’s mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son’s instructions, preparation and plans, the purpose to aid and comfort the enemy becomes clear.”[736]

The Court held that conversations and occurrences long prior to the indictment were admissible evidence on the question of defendant’s intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court [Pg 642]does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length;

“As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.

“The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer.

“The Cramer case departed from those rules when it held that ‘The two-witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness.’ 325 U.S. p. 35. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one.”[737]


The third case referred to above is Kawakita v. United States,[738] which was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: “At petitioner’s trial for treason, it appeared that originally he was a native-born citizen of the United [Pg 644]States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese; showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan’s surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport.” The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.[739]


The vacillation of Chief Justice Marshall between the Bollman[740] and Burr[741] cases and the vacillation of the Court in the Cramer[742] and Haupt[743] cases leaves the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: “Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution * * * must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation.”

Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.


The Confiscation Act of 1862[745] “to Suppress Insurrection; to Punish Treason and Rebellion; to Seize and Confiscate the Property of Rebels raised issues under article III, section 3, clause 2.” Because of the constitutional doubts of the President the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason,[746] the Court in one case[747] quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attainted person “to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him.”


[1]Miller, On the Constitution, 314 (New York, 1891).

[2]219 U.S. 346 (1911)

[3]Ibid. 361.

[4]United States v. Arredondo, 6 Pet. 691 (1832).

[5]General Investment Co. v. New York Central R. Co., 271 U.S. 228, 230 (1926).

[6]For distinctions between judicial power and jurisdiction see Williams v. United States, 289 U.S. 553, 566 (1933); and the dissent of Justice Rutledge in Yakus v. United States, 321 U.S. 414, 467-468 (1944).

[7]Michaelson v. United States, 266 U.S. 42 (1924).

[8]McIntire v. Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75 (1807).

[9]Wayman v. Southard, 10 Wheat. 1 (1825)

[10]Gumbel v. Pitkin, 124 U.S. 131 (1888).

[11]Ex parte Peterson, 253 U.S. 300 (1920).

[12]Ex parte Garland, 4 Wall. 333, 378 (1867).

[13]Chisholm v. Georgia, 2 Dall. 419 (1793); Kentucky v. Dennison, 24 How. 66, 98 (1861) contains a review of authorities on this point.

[14]Mayor of Nashville v. Cooper, 6 Wall. 247, 252 (1868); Cary v. Curtis, 3 How. 236 (1845); Shelden v. Sill, 8 How. 441 (1850); Kline v. Burke Construction Co., 260 U.S. 226 (1922). See also the cases discussed under the heading of the Power of Congress to regulate the jurisdiction of the lower federal courts, infra, p. 616.

[15]2 Dall. 409 (1792).

[16]His initial effort was in United States v. Ferreira, 13 How. 40 (1852). This case involved the validity of an act of Congress directing the judge of the territorial court of Florida to examine and adjudge claims of Spanish subjects against the United States and to report his decisions with evidence thereon to the Secretary of the Treasury who in turn was to pay the award to the claimant if satisfied that the decisions were just and within the terms of the treaty of cession. After Florida became a State and the territorial court a district court of the United States, the Supreme Court refused to entertain an appeal under the statute for want of jurisdiction to review nonjudicial proceedings. The duties required by the act, it was said “are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws.” Ibid. 51.

[17]2 Wall. 561 (1865).

[18]117 U.S. 697 Appx. (1864). See also De Groot v. United States, 5 Wall. 419 (1867) and United States v. Klein, 13 Wall. 128 (1872), which sustained Supreme Court revision after the jurisdiction of the Court of Claims had been made final. The Gordon decision had indicated that the Supreme Court could not review the decision of any legislative court.

[19]117 U.S. 697, 703. This last doctrine was repeated to the extent that for many years an award of execution as distinguished from finality of judgment came to be regarded as an essential attribute of judicial power. See In re Sanborn, 148 U.S. 222, 226 (1893); Interstate Commerce Commission v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 219 U.S. 346, 355, 361-362 (1911), and Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927).

[20]273 U.S. 70 (1927).

[21]276 U.S. 71 (1928).

[22]274 U.S. 123 (1927). This case also clarified any doubts concerning a federal declaratory judgment act which was passed in 1934 and sustained in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937).

[23]288 U.S. 249 (1933). The decision in the Swope and Wallace cases removed all constitutional doubts which had previously shrouded a proposed federal declaratory judgment act which was enacted in 1934 (48 Stat. 955) and sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).

[24]John Charles Fox, The King v. Almon, 24 Law Quarterly Review 184, 194-195 (1908).

[25]John Charles Fox, The Summary Power to Punish Contempt, 25 Law Quarterly Review, 238, 252 (1909).

[26]1 Stat. 73, 83.

[27]Act of March 2, 1831, 4 Stat. 487, now 18 U.S.C.A. 401. For a summary of the Peck Impeachment and the background of the act of 1831, see Felix Frankfurter and James Landis, Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts—A Study in Separation of Powers, 37 Harvard Law Review, 1010, 1024-1028 (1924).

[28]19 Wall. 505 (1874).

[29]Ibid. 505, 510-511.

[30]Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 158 U.S. 504, 595 (1895).

[31]U.S. 42 (1924).

[32]38 Stat. 730 (1914).

[33]266 U.S. 42, 65-66.

[34]247 U.S. 402 (1918).

[35]Ibid. 418-421.

[36]263 U.S. 255 (1923). In his dissent in this case, Justice Holmes stated that unless a judge has power to “lay hold of anyone who ventures to publish anything that tends to make him unpopular or to belittle him * * *. A man cannot be summarily laid by the heels because his words may make public feeling more unfavorable in case the judge should be asked to act at some later date, any more than he can for exciting feeling against a judge for what he already has done.” Ibid. 281-282.

[37]313 U.S. 33, 47-53 (1941).

[38]314 U.S. 252, 260 (1941). See pp. 783-784 (Amendment I).

[39]128 U.S. 289 (1888).

[40]267 U.S. 517 (1925).

[41]Ibid. 534, 535.

[42]Ibid. 539.

[43]Sacher v. United States, 343 U.S. 1 (1952).

[44]Dennis v. United States, 341 U.S. 494 (1951).

[45]343 U.S. 1, 11, 13-14. Justice Clark did not participate. Justices Black, Frankfurter, and Douglas dissented. Justice Frankfurter’s opinion is accompanied by an elaborate review of exchanges between the trial judge and defense counsel, excerpted from the record of the case. On the constitutional issue he said: “Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. Departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. Neither self-respect nor the good name of the law required it. Quite otherwise. Despite the many incidents of contempt that were charged, the trial went to completion, nine months after the first incident, without a single occasion making it necessary to lay any one of the lawyers by the heel in order to assure that the trial proceed. The trial judge was able to keep order and to continue the court’s business by occasional brief recesses calculated to cool passions and restore decorum, by periodic warnings to defense lawyers, and by shutting off obstructive arguments whenever rulings were concisely stated and firmly held to.” Ibid. 36. Justice Douglas summarized the position of all three dissenters, as follows: “I agree with Mr. Justice Frankfurter that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers. I therefore agree with Mr. Justice Black and Mr. Justice Frankfurter that this is the classic case where the trial for contempt should be held before another judge. I also agree with Mr. Justice Black that petitioners were entitled by the Constitution to a trial by jury.” Ibid. 80.

[46]330 U.S. 258, 293-307 (1947).

[47]203 U.S. 563 (1906)

[48]Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324, 327-328 (1904).

[49]267 U.S. 87, 119-120 (1925).

[50]Michaelson v. United States, 266 U.S. 42, 65-66 (1924).

[51]154 U.S. 447 (1894).

[52]Penfield Co. v. Securities and Exchange Commission, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them see also McCrone v. United States, 307 U.S. 61 (1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946). In the last mentioned case Justice Murphy dissented on the ground that delegation of the subpoena power to nonjudicial officers is unconstitutional as “a corrosion of liberty.” In the Endicott Johnson Case he expressed dissatisfaction with the exercise of this power by administrative agencies but confined his dissent to emphasizing greater judicial scrutiny in enforcing administrative orders to appear and produce testimony.

[53]1 Stat. 73, 81.

[54]Ibid. 81-82.

[55]1 Cr. 137 (1803). Cf. Wiscart v. Dauchy, 3 Dall. 321 (1796).

[56]McIntire v. Wood, 7 Cr. 504 (1813); and McClung v. Silliman, 6 Wheat. 598 (1821).

[57]12 Pet. 524 (1838).

[58]Ex parte Bollman, 4 Cr. 74, 93, 94 (1807).

[59]Ex parte Yerger, 8 Wall. 85 (1869).

[60]See also Ex parte McCardle, 7 Wall. 506 (1869).

[61]In United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: “The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either annunciations of those principles or limitations upon their application in particular cases.” It should be emphasized, however, that the Court made no suggestion that it could apply pre-existing principles of equity without jurisdiction over the subject matter. Indeed, the inference is to the contrary. In a dissenting opinion in which Justices McKenna and Van Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459, 475 (1917), Justice Pitney contended that article III, section 2, “had the effect of adopting equitable remedies in all cases arising under the Constitution and laws of the United States where such remedies are appropriate.”

[62]Boyce’s Executors v. Grundy, 3 Pet. 210 (1830).

[63]1 Stat. 333; 28 U.S.C.A. 1651.

[64]14 Stat. 475 (1867); 26 U.S.C.A. 3653 (a).

[65]36 Stat. 557 (1910); 28 U.S.C.A. 2281.

[66]50 Stat. 752 (1937); 28 U.S.C.A. 2282.

[67]38 Stat. 220 (1913); 28 U.S.C.A. 2325.

[68]48 Stat. 775 (1934); 28 U.S.C.A. 1342.

[69]38 Stat. 730 (1914) (Clayton Act); 29 U.S.C.A. 52, and 47 Stat. 70 (1932) (Norris-LaGuardia Act); 29 U.S.C.A. 101-115.

[70]56 Stat. 31 (1942), § 204; 50 U.S.C.A. 924 (App.).

[71]Freeman v. Howe, 24 How. 450 (1861); Gaines v. Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908).

[72]Langnes v. Green, 282 U.S. 531 (1931); Riehle v. Margolies, 270 U.S. 218 (1929), and Essanay Film Mfg. Co. v. Kane, 258 U.S. 358 (1922). See also Hill v. Martin, 296 U.S. 393, 403 (1935); Kohn v. Central Distributing Co., 306 U.S. 531, 534 (1939); and Oklahoma Packing Co. v. Oklahoma Gas and Electric Co., 309 U.S. 4, 9 (1940).

[73]254 U.S. 443 (1921).

[74]Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938).

[75]In addition to the cases cited in note 2, see Milk Wagon Drivers’ Union v. Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).

[76]319 U.S. 182 (1943).

[77]Ibid. 187, quoting Cary v. Curtis, 3 How. 236, 245 (1845).

[78]321 U.S. 414 (1944).

[79]Washington-Southern Navigation Co. v. Baltimore Co., 263 U.S. 629 (1924).

[80]10 Wheat. 1 (1825).

[81]106 U.S. 272, 280 (1882).

[82]Washington-Southern Navigation Co. v. Baltimore Co., 263 U.S. 629, 635, 636 (1924).

[83]McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 2 How. 244, 257 (1844).

[84]Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884), and Buck v. Colbath, 3 Wall. 334 (1866).

[85]Eberly v. Moore, 24 How. 147 (1861); Arkadelphia Milling Co. v. St. Louis S.W.R. Co., 249 U.S. 134 (1919).

[86]Gagnon v. United States, 193 U.S. 451, 458 (1904).

[87]2 Wall. 123, 128-129 (1864).

[88]253 U.S. 300 (1920).

[89]Ibid. 312.

[90]Ex parte Secombe, 19 How. 9, 13 (1857).

[91]4 Wall. 333 (1867).

[92]Ibid. 378-380. For an extensive treatment of disbarment and American and English precedents thereon, see Ex parte Wall, 107 U.S. 265 (1883).

[93]Reorganization of the Judiciary, Hearings on S. 1392; 75th Cong., 1st sess., 1937, Pt. 3, p. 491. Justices Van Devanter and Brandeis approved the letter. For earlier proposals to have the Court sit in divisions, see Felix Frankfurter and James M. Landis, The Business of the Supreme Court, pp. 81-83, (New York, 1928).

[94]1 Stat. 73-74, § 2-3.

[95]Ibid. 73, 74-76; § 4-5.

[96]2 Stat. 89.

[97]2 Stat. 132. For a general account of the events leading to the acts of 1801 and 1802, see Felix Frankfurter and James M. Landis, The Business of the Supreme Court; a study in the federal judicial system (New York, 1928), pp. 25-32. This book also contains an excellent account of the organization and reorganization of the judiciary by statute from time to time. For another account of the acts of 1801 and 1802 see Charles Warren, The Supreme Court in United States History (Boston, Rev. ed., 1932), 189-215.

[98]1 Cr. 299, 309 (1803).

[99]38 Stat. 208, 219-221.

[100]Prior to the act of 1913 Congress had voted to abolish the Commerce Court, but President Taft vetoed the bill which converted the Commerce Court judges into ambulatory circuit judges. For a general account of the abolition of the Commerce Court, see Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 166-173.

[101]Evans v. Gore, 253 U.S. 245 (1920).

[102]268 U.S. 501 (1925).

[103]307 U.S. 277 (1939).

[104]Ibid. 278-282.

[105]Ibid. 282.

[106]289 U.S. 516, 526 (1933).

[107]289 U.S. 553 (1933).

[108]36 Stat. 539 (1910). For the legislative history of the Commerce Court see Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 155-164.

[109]56 Stat. 23, 31-33.

[110]In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.

[111]321 U.S. 414 (1944).

[112]Ibid. 444.

[113]Ibid. 468.

[114]Pet. 511 (1928).

[115]Ibid. 546.

[116]Ibid. 546. Closely analogous to the territorial courts are extraterritorial and consular courts created in the exercise of the foreign relations power. See In re Ross, 140 U.S. 453 (1891).

[117]279 U.S. 438 (1929).

[118]Ibid. 451.

[119]Gordon v. United States, 117 U.S. 697 (1886); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933).

[120]United States v. Coe, 155 U.S. 76 (1894).

[121]Wallace v. Adams, 204 U.S. 415 (1907).

[122]Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716 (1929); Ex parte Bakelite Corporation, 279 U.S. 438 (1929).

[123]The general tendency in the evolution of legislative courts is to provide for tenure during good behavior. This is true of the judges of the Court of Claims, the Customs Court, the Court of Customs and Patent Appeals. The terms of the judges of the Tax Court are limited to twelve years and the judges are subject to removal by the President after notice and hearing. For the provisions of the statutes governing these matters see 28 U.S.C. §§ 241, 296, 301-301a; 26 U.S.C. §§ 1102b, d, f. The territorial judges in Alaska (48 U.S.C. § 112) have four-year terms subject to removal by the President; in Hawaii six years unless removed by the President (48 U.S.C. § 643), eight years in Puerto Rico (28 U.S.C. § 803); eight years in the Canal Zone subject to removal by the President (48 U.S.C. § 1353); and four years in the Virgin Islands unless sooner removed by the President (48 U.S.C. § 1405y).

[124]141 U.S. 174 (1891).

[125]Ibid. 188

[126]289 U.S. 553 (1933).

[127]268 U.S. 501 (1925).

[128]117 U.S. 697 (1886).

[129]13 How. 40, 48 (1852). See also Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Radio Commission v. General Electric Co., 231 U.S. 464 (1930).

[130]5 Wall. 419 (1867).

[131]Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930); Pope v. United States, 323 U.S. 1 (1944).

[132]112 U.S. 50 (1884).

[133]Keller v. Potomac Electric Co., 261 U.S. 428 (1923).

[134]Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930).

[135]279 U.S. 438 (1929). All of these rulings with respect to the vesting of revisory powers in the courts of the District carried the qualification that revisory actions and interlocutory opinions, as nonjudicial functions, were not reviewable on appeal to the Supreme Court of the United States. Frasch v. Moore, 211 U.S. 1 (1908); E.C. Atkins & Co. v. Moore, 212 U.S. 285 (1909); Keller v. Potomac Electric Co., 261 U.S. 428 (1923); Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930).

[136]O’Donoghue v. United States, 289 U.S. 516 (1933).

[137]Ibid. 545-546.

[138]Ibid. 545. Chief Justice Hughes in a dissent joined by Justice Van Devanter and Cardozo took the position that the plenary power of Congress over the District is complete in itself and its power to create courts in the District is not derived from article III. Consequently, they argued that the limitations of article III do not apply to the organization of such courts. The O’Donoghue Case is discussed in the opinions of Justices Jackson and Rutledge and in the dissent of Chief Justice Vinson in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 601-602, 608-611, 638-640 (1949).

[139]6 Wheat. 264 (1821).

[140]Ibid. 378.

[141]Miller, Constitution, 314, quoted in Muskrat v. United States, 219 U.S. 346, 356 (1911).

[142]9 Wheat. 738, 819 (1824).

[143]2 Dall. 419, 431, 432 (1793).

[144]In re Pacific Railway Commission, 32 F. 241, 255 (1887). Justice Field repeated the substance of this definition in Smith v. Adams, 130 U.S. 167, 173-174 (1889).

[145]219 U.S. 346, 357 (1911).

[146]Ibid. 361-362. Judicial power is here defined by Justice Day as “the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction.” Ibid. 361.

[147]Muskrat v. United States, 219 U.S. 346 (1911); Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339 (1892); Lampasas v. Bell, 180 U.S. 276 (1901); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Smith v. Indiana, 191 U.S. 138 (1903); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896).

[148]143 U.S. 339 (1892).

[149]Ibid. 345.

[150]Muskrat v. United States, 219 U.S. 346 (1911).

[151]Lampasas v. Bell, 180 U.S. 276, 284 (1901).

[152]Braxton County Court v. West Virginia, 208 U.S. 192 (1908).

[153]Ibid. 198.

[154]Smith v. Indiana, 191 U.S. 138, 149 (1903).

[155]Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896).

[156]Coffman v. Breeze Corporations, Inc., 323 U.S. 316, 324-325 (1945), citing Tyler v. The Judges, 179 U.S. 405 (1900); Hendrick v. Maryland, 235 U.S. 610 (1915).

[157]Fleming v. Rhodes, 331 U.S. 100, 104 (1947). See also Blackmer v. United States, 284 U.S. 421, 442 (1932); Virginian R. Co. v. System Federation, 300 U.S. 515 (1937); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 (1937).

[158]157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying the tax appears to be Dodge v. Woolsey, 18 How. 331 (1856) which involved the validity of an Ohio tax. The suit was entertained on the basis of English precedents. A case similar to the Pollock Case is Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916). Hawes v. Oakland, 104 U.S. 450 (1881) is cited in the Pollock Case, although it in fact threw out a stockholder’s suit.

[159]Cf. Cheatham et al. v. United States, 92 U.S. 85 (1875); and Snyder v. Marks, 109 U.S. 189 (1883).

[160]Smith v. Kansas City Title Co., 255 U.S. 180, 201, 202 (1921).

[161]Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936). Although the holdings of the plaintiffs amounted to only one-three hundred and fortieth of the preferred stock, the Court ruled that the right to maintain the suit was not affected by the smallness of the holdings.

[162]298 U.S. 238 (1936).

[163]Robert L. Stern, in The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667-668 (1948), gives the following account of the litigation in the first bituminous coal case: On the same day that the Bituminous Coal Act became law, the directors of the Carter Coal Company met in New York. James Carter presented a letter saying the Coal Act was unconstitutional and that the company should not join the Code. His father agreed that the act was invalid, but thought the company should not take the risk of paying the tax required of nonmembers in the event the act should be sustained. The third director agreed with the elder Carter, and the board passed a resolution rejecting James Carter’s proposals. This action was subsequently approved by a majority of the voting stock held by James Carter’s father and mother who outvoted him and his wife.

[164]Massachusetts v. Mellon, 262 U.S. 447, 487 (1923). See also Williams v. Riley, 280 U.S. 78 (1929).

[165]Fairchild v. Hughes, 258 U.S. 126 (1922).

[166]Ex parte Levitt, 302 U.S. 633 (1937). See, however, Massachusetts State Grange v. Benton, 272 U.S. 525 (1926), where the Supreme Court, though affirming the dismissal of a suit to enjoin a day-light-saving statute, nonetheless, sustained the jurisdiction of the district court to entertain the suit.

[167]Alabama Power Co. v. Ickes, 302 U.S. 464, 480-481 (1938).

[168]333 U.S. 203 (1948).

[169]342 U.S. 429 (1952). See p. 763 (Amendment I).

[170]6 Wall. 50, 64 (1868). See also State of Mississippi v. Johnson, 4 Wall. 475 (1867).

[171]6 Wall. at 76.

[172]262 U.S. 447 (1923).

[173]42 Stat. 224 (1921).

[174]262 U.S. 447, 484-485. See also New Jersey v. Sargent, 269 U.S. 328, 338-340 (1926), where the Court refused jurisdiction of a suit to enjoin the federal water power act because of its effect on the conservation of potable waters in New Jersey. A similar situation arose in Arizona v. California, 283 U.S. 423, 450 (1931), where the Court declined to take jurisdiction of an injunction suit to restrain the Secretary of the Interior and the five States of the Colorado River Compact from constructing Boulder Dam.

[175]Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945).

[176]Missouri v. Holland, 252 U.S. 416 (1920).

[177]Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

[178]Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).

[179]Giles v. Harris, 189 U.S. 475, 486 (1903).

[180]258 U.S. 158 (1922).

[181]Ibid. 162.

[182]297 U.S. 288, 324 (1936).

[183]274 U.S. 488 (1927).

[184]Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324 (1936).

[185]283 U.S. 423 (1931).

[186]330 U.S. 75 (1947).

[187]Ibid. 89-91. Justices Black and Douglas wrote separate dissents, but each contended that the controversy was justiciable. Justice Douglas could not agree that the men should violate the act and lose their jobs in order to test their rights.

[188]Ex parte Steele, 162 F. 694, 701 (1908).

[189]Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (1852); United States v. Chambers, 291 U.S. 217 (1934); Mills v. Green, 159 U.S. 651 (1895); United States v. Evans, 213 U.S. 297 (1909).

[190]Mills v. Green, 159 U.S. 651 (1895). This case came to the Supreme Court on appeal from a decree of the circuit court of appeals dissolving an injunction restraining certain registration officials from excluding the appellant from the voting list. However, the election in which appellant desired to vote was held prior to the appeal, and the case thereby became moot. See also St. Pierre v. United States, 319 U.S. 41 (1943).

[191]Ibid. 653.

[192]Keim v. United States, 177 U.S. 290, 293 (1900); Georgia v. Stanton, 6 Wall. 50, 71 (1868).

[193]14 Pet. 497 (1840).

[194]Ibid. 516.

[195]Ibid., and Kendall v. United States ex rel. Stokes, 12 Pet. 524, 621 (1838); see also Marbury v. Madison, 1 Cr. 137 (1803).

[196]Mississippi v. Johnson, 4 Wall. 475 (1867).

[197]Georgia v. Stanton, 6 Wall. 50 (1868).


[199]4 Wall. 475 (1867).

[200]12 Pet. 524 (1838).

[201]1 Cr. 137, 170 (1803).

[202]7 How. 1 (1849).

[203]Ibid. 41.

[204]Ibid. 42-45.

[205]This classification follows in the main that of Melville Fuller Weston, Political Questions, 38 Harv. L. Rev. 296 (1925).

[206]Field v. Clark, 143 U.S. 649 (1892).

[207]Coleman v. Miller, 307 U.S. 433 (1939).

[208]Foster v. Neilson, 2 Pet. 253 (1829). See p. 472, supra.

[209]Commercial Trust Co. of New Jersey v. Miller, 262 U.S. 51 (1923).

[210]United States v. Anderson, 9 Wall. 56 (1870).

[211]Luther v. Borden, 7 How. 1 (1849); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912).

[212]Luther v. Borden, 7 How. 1 (1849).

[213]McPherson v. Blacker, 146 U.S. 1 (1892), where the Court refused to pass upon the act of the Michigan legislature in 1892 providing for the election of presidential electors by Congressional districts.

[214]South v. Peters, 339 U.S. 276 (1950).

[215]Colegrove v. Green, 328 U.S. 549 (1946).

[216]Massachusetts v. Mellon, 262 U.S. 447 (1923); Georgia v. Stanton, 6 Wall. U.S. 50 (1868); Cherokee Nation v. Georgia, 5 Pet. 1 (1831).

[217]143 U.S. 649, 670-672 (1892).

[218]Coleman v. Miller, 307 U.S. 433, 450 (1939).

[219]Ibid. 452-453.

[220]328 U.S. 549 (1946).

[221]287 U.S. 1 (1932). This case involved an unsuccessful attempt to enjoin an election of representatives in Congress in Mississippi because the districts formed by the legislature for that purpose were not a contiguous and compact territory and of equal population and that the redistricting violated article I, § 4 and the Fourteenth Amendment. The Court held that the provisions of the Reapportionment Act of 1929 did not reenact the requirements of the act of 1911 and that it was therefore unnecessary to determine whether the questions raised were justiciable.

[222]285 U.S. 355 (1932). Here the Court held that the act of the Minnesota legislature redistricting the State required the governor’s signature, and that representatives should be chosen at large until a redistricting was passed.

[223]328 U.S. 549, 565-566.

[224]Ibid. 566 ff.

[225]335 U.S. 281 (1948).

[226]335 U.S. 160 (1948).

[227]339 U.S. 276 (1950).

[228]Charles Warren, The Supreme Court in United States History, I, (Boston, 1922), 110-111. For the full correspondence see 3 Correspondence and Public Papers of John Jay (1890-1893), (edited by Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647 (May 1935), the Court rendered an advisory opinion to President Monroe in response to a request for legal advice on the power of the Government to appropriate federal funds for public improvements by responding that Congress might do so under the war and postal powers. The inhibitions of the Court against advisory opinions do not prevent the individual Justices from giving advice or aiding the political departments in their private capacities. Ever since Chief Justice Jay went on a mission to England to negotiate a treaty the members of the Court have performed various nonjudicial functions. John Marshall served simultaneously as Secretary of State and Chief Justice, and later Justice Robert Jackson served as war crimes prosecutor.

[229]For example, Muskrat v. United States, 219 U.S. 346, 354 (1911); Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 113 (1948); United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947).

[230]Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 113-114 (1948), citing Hayburn’s Case, 2 Dall. 409 (1792); United States v. Ferreira, 13 How. 40 (1852); Gordon v. United States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893); Interstate Commerce Commission v. Brimson, 154 U.S. 447 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Jefferson Electric Co., 291 U.S. 386 (1934).

[231]Muskrat v. United States, 219 U.S. 346 (1911).

[232]United States v. Ferreira, 13 How. 40 (1852).

[233]United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947). Here, Justice Reed, for the Court, after asserting that constitutional courts do not render advisory opinions, declared that “‘concrete legal issues, presented in actual cases, not abstractions,’ are requisite” for the adjudication of constitutional issues, citing Electric Bond and Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 443 (1938); United States v. Appalachian Electric Power Co., 311 U.S. 377, 423 (1940); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945); and Coffman v. Breeze Corporations, 323 U.S. 316, 324 (1945).

[234]13 How. 40 (1852).

[235]117 U.S. 697 (1864).

[236]273 U.S. 70 (1927). In Willing v. Chicago Auditorium Association, 277 U.S. 274 (1928) certain lessees desired to ascertain their rights under a lease to demolish a building after the lessors had failed to admit such rights on the allegation that claims, fears, and uncertainties respecting the rights of the parties greatly impaired the value of the leasehold. Because there was no showing that the lessors had hampered the full use of the premises or had committed or threatened a hostile act, the Supreme Court sustained the decree of the lower Court dismissing the bill on the ground that the plaintiff was seeking a mere declaratory judgment. The Court admitted that the proceeding was not moot, that there were adverse parties with substantial interests, and that a final judgment could have been rendered, but held, nonetheless, that the proceeding was not a case or controversy merely because plaintiffs were thwarted by its own doubts, or by the fears of others. Ibid. 289-290.

[237]219 U.S. 346 (1911).

[238]274 U.S. 123 (1927).

[239]288 U.S. 249, 264 (1933).

[240]300 U.S. 227, 240 (1937).

[241]28 U.S.C.A. §§ 2201, 2202; 48 Stat. 955.

[242]300 U.S. 227, 240-241 (1937). The Court distinguished between a justiciable controversy and a dispute of an abstract character, emphasized that the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, and reiterated the necessity of “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.”

[243]Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324-325 (1936).

[244]303 U.S. 419, 443 (1938).

[245]Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945), citing Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249 (1933); Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937); Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 273 (1941); Great Lakes Co. v. Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman v. Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the Court refused to entertain hypothetical, or contingent questions, and the decision of constitutional issues prematurely. For this same rule see also, Altvater v. Freeman, 319 U.S. 359, 363 (1943).

[246]306 U.S. 1 (1939).

[247]307 U.S. 325 (1939).

[248]312 U.S. 270 (1941).

[249]300 U.S. 227 (1937).

[250]Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, (1941).

[251]Brillhart v. Excess Insurance Co., 316 U.S. 491 (1942). This was a diversity of citizenship case which presented only local questions.

[252]Cohens v. Virginia, 6 Wheat. 264, 378 (1821).

[253]Stat. 73, 85-86.

[254]1 Wheat. 304 (1816).

[255]6 Wheat. 264 (1821).

[256]Ibid. 379.

[257]Ibid. 422-423. In Martin v. Hunter’s Lessee, 1 Wheat. 304 (1816), Justice Story had traversed some of these same grounds. He, too, began with the general assumptions that the Constitution was established by the people of the United States and not by the States in their sovereign capacities, that the Constitution is to be construed liberally, and that the National Government is supreme in relation to its objects; and had concluded that the Supreme Court had authority to review State court decisions under the express provisions of articles III and VI, and also from the necessity that final decision must rest somewhere and from the importance and necessity of uniformity of decisions interpreting the Constitution. Many years later in Ableman v. Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme Court, like the Virginia Courts earlier, had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, Chief Justice Taney on grounds both of dual sovereignty and national supremacy was even more emphatic in his rebuke of State pretensions. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree beyond that envisaged even by Marshall and Story. As late as 1880 the questions presented in the foregoing cases were before the Court in Williams v. Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a Virginia court to enforce a mandate of the Supreme Court. By the act of December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act of 1789 which was carried over with modifications into the Revised Statutes, § 690; 28 U.S.C. § 344 was amended so as to provide for review of State court decisions on certiorari whether the federal claim is sustained or denied. These provisions are now contained in 28 U.S.C.A. 1257 (1948).

The first case involving invalid State legislation arose under a treaty of the United States. Ware v. Hylton, 3 Dall. 199 (1797). In Calder v. Bull, 3 Dall. 386 (1798), the Court sustained a State statute as not being an ex post facto law. The first case in which a State statute was held invalid as a violation of the Constitution was Fletcher v. Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal from a United States circuit court and not by a writ of error under section 25. Famous cases coming to the Court under section 25 were Sturges v. Crowninshield, 4 Wheat. 122, McCulloch v. Maryland, 4 Wheat. 316, and Dartmouth College v. Woodward, 4 Wheat. 518. All three were decided in 1819 and the State legislation involved in each was held void.

[258]That the great majority of the most influential members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: Gerry and King of Massachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, Dickinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Williamson of North Carolina, Sherman and Ellsworth of Connecticut. See Max Farrand, Records of the Federal Convention (Yale Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76 (Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248 (Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220 (Martin, in “Genuine Information”). The Federalist: Nos. 39 and 44 (Madison), Nos. 78 and 81 (Hamilton). Elliot’s Debates (ed. of 1836), II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton); III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165 (Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in “Letters of Fabius”). Ford, Essays on the Constitution, 295 (Robert Yates, writing as “Brutus”). True these are only seventeen names out of a possible fifty-five, but they designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution (Gorham, Rutledge, Randolph, Ellsworth, and Wilson) and four of the five members of the Committee of Style which gave the Constitution final form (Johnson, Hamilton, Gouverneur Morris, Madison, and King). Against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases is of doubtful implication.

It should be noted, however, that there was later some backsliding. Madison’s record is characteristically erratic. His statement in The Federalist No. 39 written probably early in 1788, is very positive: The tribunal which is to ultimately decide, in controversies relating to the boundary between the two jurisdictions, is to be established under the general government. Yet a few months later (probably October, 1788) he seemed to repudiate judicial review altogether, writing: “In the State Constitutions and indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper.” 5 Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as follows in support of the proposals to amend the Constitution which led to the Bill of Rights: “If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.” Ibid. 385. Nine years later as author of the Virginia Resolutions of 1798, he committed himself to the proposition that the final power in construing the Constitution rested with the respective State legislatures, a position from the logical consequences of which he spent no little effort to disengage himself in the years of his retirement. Another recidivist was Charles Pinckney, who in 1799 denounced the idea of judicial review as follows: “On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country.” Wharton, State Trials, 412. The great debate in Congress in the first session of the 7th Congress over the repeal of the Judiciary Act of 1801 speedily developed into a debate over whether judicial review of acts of Congress was contemplated by the Constitution. In the Senate Breckenridge of Kentucky, author of the Kentucky Resolutions of 1799, contended for the equal right of the three departments to construe the Constitution for themselves within their respective spheres, and from it deduced the exclusive right of the legislature to interpret the Constitution in what regards the lawmaking power and the obligation of the judges to execute what laws they make. But the feeble disguise which this doctrine affords legislative sovereignty made it little attractive even to Republicans, who for the most part either plainly indicated their adherence to the juristic view of the Constitution, or following a hint by Giles of Virginia, kept silent on the subject. The Federalists on the other hand were unanimous on the main question, though of divergent opinions as to the grounds on which judicial review was to be legally based, some grounding it on the “arising” and “pursuant” clauses, some on the precedents of the Pension and Carriage cases, some on the nature of the Constitution and of the judicial office, some on the contemporary use of terms and the undisputed practice under the Constitution of all constitutional authorities. Moreover, said The Federalist orators, judicial review was expedient, since the judiciary had control of neither the purse nor the sword; it was the substitute offered by political wisdom for the destructive right of revolution; to have established this principle of constitutional security, a novelty in the history of nations, was the peculiar glory of the American people; the contrary doctrine was monstrous and unheard of. The year following Marshall concluded the debate, and rendered decision, in Marbury v. Madison. See Edward S. Corwin, The Doctrine of Judicial Review (Princeton University Press. 1914), 49-59; and Court Over Constitution (1938), Chap. 1. “The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity.”—Chief Justice Edward Douglass White when Senator from Louisiana. Cong. Record, 52d Cong., 2d sess., p. 6516 (1894). “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.” Oliver Wendell Holmes, Collected Legal Papers (New York, 1920), 295-296.

[259]The Federalist No. 78.

[260]3 Dall. 386, 399 (1798).

[261]2 Dall. 409 (1792).

[262]1 Stat. 243 (1792).

[263]3 Dall. 171 (1796).

[264]1 Cr. 137 (1803).

[265]1 Stat. 73, 81.

[266]Cr. 137, 175-180.

[267]Ibid. 180. The opinion in Marbury v. Madison is subject to two valid criticisms. In the first place the construction of the 13th Section of the Judiciary Act, if not erroneous, was unnecessary since the section could have been interpreted, as it afterward was, merely to give the Court the power to issue mandamus and other writs when it had jurisdiction but not for the purpose of acquiring jurisdiction. The exclusive interpretation of the Court’s original jurisdiction, sometimes made a subject of criticism, had been adopted by the Court in Wiscart v. Dauchy, 3 Dall. 321 (1796), and while couched in terms which had later to be qualified in Cohens v. Virginia, 6 Wheat. 264, 398-402 (1821), by Marshall himself, has remained the doctrine of the Court. Secondly, there was good ground for Jefferson’s criticism, which did not touch the constitutional features of the decision, but did inveigh against the temerity of the Court in passing on the merits of a case of which, by its own admission, it had no jurisdiction.

[268]In this connection Justice Patterson’s jury charge in Van Horne’s Lessee v. Dorrance, 2 Dall. 304, 308 (1795), is of significance for its discussion of the relation of the Constitution, the legislature and the courts. A constitution, he said, “is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it.” Legislatures are the creatures of the Constitution to which they owe their existence and powers, and in case of conflict between a legislative act and the Constitution it is the duty of the courts to hold it void. In accordance with these doctrines fortified by natural law concepts, the circuit court invalidated a Pennsylvania statute as being in conflict with the federal and State Constitutions as a violation of the inalienable rights of property. In 1799 the federal circuit court in North Carolina, over which Chief Justice Marshall presided, invalidated an act of North Carolina as a violation of the contract clause and the separation of powers in Ogden v. Witherspoon, 18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and natural rights continued in Fletcher v. Peck, 6 Cr. 87, 139 (1810) where the Supreme Court invalidated an act of the Georgia legislature revoking an earlier land grant as a violation either of the “general principles which are common to our free institutions,” or of the contract clause.

[269]This phase of judicial review is described by Justice Sutherland as follows: “From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law.” Adkins v. Children’s Hospital, 261 U.S. 525, 544 (1923). In United States v. Butler, 297 U.S. 1, 62 (1936), Justice Roberts for the Court reduced judicial review to very simple terms when he declared that when an act is challenged as being unconstitutional, “the judicial branch of the Government has only one duty,—to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former.”

[270]Note, for example, the following statement of Chief Justice Marshall: “Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing.” Osborn v. Bank of United States, 9 Wheat. 738, 866 (1824). Note also the assertion of Justice Roberts: “All the court does, can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the Constitution; and, having done that, its duty ends.” United States v. Butler, 297 U.S. 1, 62-63 (1936).

[271]Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892).

[272]Ibid. See also Muskrat v. United States, 219 U.S. 346 (1911); Massachusetts v. Mellon, 262 U.S. 447 (1923); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); United Public Workers of America v. Mitchell, 330 U.S. 75 (1947); Fleming v. Rhodes, 331 U.S. 100, 104 (1947)

[273]Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568-575 (1947). See also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129 (1946); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Coffman v. Breeze Corporations, 323 U.S. 316, 324-325 (1945); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Siler v. L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College v. Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the notes to the preceding paragraph.

[274]331 U.S. 549, 571 (1947).

[275]See pp. 546-548. For the distinction between inherent and precautionary limitations to the exercise of judicial review and the operation of judicial review within them, see Edward S. Corwin, Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926). For the limitations generally see also the concurring opinion of Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-356 (1936), and the cases cited therein.

[276]One of the earliest formulations of this rule is that by Justice Iredell in Calder v. Bull, 3 Dall. 386, 399 (1798), and by Justice Chase in the same case, p. 394. On the other hand Justice Chase in this same case asserted that there were certain powers which “it cannot be presumed” have been entrusted to the legislature. See also Sinking-Fund Cases, 99 U.S. 700 (1879).

[277]Ogden v. Saunders, 12 Wheat. 213 (1827); Providence Bank v. Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender Cases, 12 Wall. 457 (1871); Madden v. Kentucky, 309 U.S. 83 (1940); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945). See also Justice Moody’s dissenting opinion in Howard v. Illinois C.R. Co. (The Employers’ Liability Cases), 207 U.S. 463, 509-511 (1908).

[278]Adkins v. Children’s Hospital, 261 U.S. 525 (1923). “But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances.” Ibid. 546.

[279]Kovacs v. Cooper, 336 U.S. 77, 88 (1949) opinion of Justice Reed. See Justice Frankfurter’s concurring opinion for a criticism of this rule. For other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity see Herndon v. Lowry, 301 U.S. 242, 258 (1937); United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill v. Alabama, 310 U.S. 88, 95 (1940); Schneider v. State, 308 U.S. 147, 161 (1939); Bridges v. California, 314 U.S. 252, 262-263 (1941); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Prince v. Massachusetts, 321 U.S. 158, 164 (1944); Follett v. McCormick, 321 U.S. 573, 575 (1944); Marsh v. Alabama, 326 U.S. 501 (1946); Board of Education v. Barnette, 319 U.S. 624, 639 (1943); Thomas v. Collins, 323 U.S. 516, 530 (1945); Saia v. New York, 334 U.S. 558, 562 (1948). Justice Frankfurter has criticized the concept of “the preferred position” of these rights as a phrase that has “uncritically crept into some recent opinions” of the Court, Kovacs v. Cooper, 336 U.S. 77, 90 (1949); and Justice Jackson in a dissent has also opposed the idea that some constitutional rights have a preferred position. Brinegar v. United States, 338 U.S. 160, 180 (1949). “We cannot,” he said, “give some constitutional rights a preferred position without relegating others to a deferred position; * * *”

[280]Watson v. Buck, 313 U.S. 387 (1941); Justice Iredell’s opinion in Calder v. Bull, 3 Dall. 386 (1798); Jacobson v. Massachusetts, 197 U.S. 11 (1905). See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Daniel v. Family Security Life Ins. Co., 336 U.S. 220 (1949); Railway Express Agency v. New York, 336 U.S. 106 (1949); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Petrillo, 332 U.S. 1 (1947); American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90 (1946); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). See also Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934); Arizona v. California, 283 U.S. 423 (1931); McCray v. United States, 195 U.S. 27 (1904); Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however, Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), where the Court considered the motives of the legislation.

[281]198 U.S. 45 (1905).

[282]297 U.S. 1 (1936). The majority opinion evoked a protest from Justice Stone who said in dissenting: “The power of courts to declare … [an act of Congress unconstitutional] is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government.” Ibid. 78-79.

[283]United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948); Miller v. United States, 11 Wall. 268 (1871).

[284]See, for example, Michaelson v. United States, 266 U.S. 42 (1924), where the Court narrowly construed those sections of the Clayton Act regulating the power of courts to punish contempt in order to avoid constitutional difficulties. See also United States v. Delaware & H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly construed. Judicial disallowance in the guise of statutory interpretation was foreseen by Hamilton, see Federalist No. 81.

[285]Pollock v. Farmers’ L. & T. Co., 158 U.S. 429, 601, 635 (1895).

[286]In the first Guffey-Snyder (Bituminous Coal) Act of 1935 (49 Stat. 991), there was a section providing for separability of provisions, but the Court none the less held the price-fixing provisions inseparable from the labor provisions which it found void and thereby invalidated the whole statute. Carter v. Carter Coal Co., 298 U.S. 238, 312-316 (1936). On this point see also the dissent of Chief Justice Hughes. Ibid. 321-324.

[287]157 U.S. 429, 574-579 (1895).

[288]Justice Brandeis dissenting in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932) states the rules governing the binding force of precedents and collects the decisions overruling earlier decisions to 1932. In Helvering v. Griffiths, 318 U.S. 371, 401 (1948), Justice Jackson lists other cases overruled between 1932 and 1943. Cf. Smith v. Allwright, 321 U.S. 649 (1944) for similar list.

[289]321 U.S. 649, 665 (1944).

[290]295 U.S. 45 (1935).

[291]321 U.S. 649, 669. Justice Roberts in a dissent, in which Justice Frankfurter joined, also protested against overruling “earlier considered opinions” in Mahnich v. Southern S.S. Co., 321 U.S. 96, 112-113 (1944). More recently in United States v. Rabinowitz, 339 U.S. 56 (1950), Justice Frankfurter has protested in a dissent against reversals of earlier decisions immediately following changes of the court’s membership. “Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance—for instance, of unexpected changes in the Court’s composition and the contingencies in the choice of successors.” Ibid. 80.

[292]See Corwin, Judicial Review in Action, 74 University of Pennsylvania Law Review 639 (1926).

[293]Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933), citing Mosher v. Phoenix, 287 U.S. 29, 30 (1932).

[294]Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933). See also Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 (1923); South Covington & C. St. Ry. Co. v. Newport, 259 U.S. 97, 99 (1922); Hull v. Burr, 234 U.S. 712, 720 (1914); The Fair v. Kohler Die Co., 228 U.S. 22, 25 (1913); Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130 (1906); Western Union Tel. Co. v. Ann Arbor R. Co., 178 U.S. 239 (1900).

[295]Newburyport Water Co. v. Newburyport, 193 U.S. 561, 576 (1904). For these issues, see also Bell v. Hood, 327 U.S. 678 (1946).

[296]Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 (1933).

[297]299 U.S. 109, 112-113 (1936).

[298]Whether the doctrine that the plaintiff must allege the constitutional question to make the case one arising under the Constitution rests on constitutional or statutory grounds is uncertain. See Tennessee v. Union and Planters’ Bank, 152 U.S. 454 (1894); Oregon Short Line and Utah N. Ry. Co. v. Skottowe, 162 U.S. 490, 492 (1896); Galveston, H. & S.A. Ry. Co. v. Texas, 170 U.S. 226, 236 (1898); Sawyer v. Kochersperger, 170 U.S. 303 (1898); Board of Councilmen of Frankfort v. State National Bank, 184 U.S. 696 (1902); Boston and Montana Consolidated Copper & Silver Mining Co. v. Montana Ore Purchasing Co., 188 U.S. 632, 639 (1903). Some of these cases apply to the removal of cases from State courts where the plaintiff does not aver a federal question. On this point note the following statement of Chief Justice Fuller in Arkansas v. Kansas & T.C. Co. & S.F.R., 183 U.S. 185, 188 (1901): “Hence it has been settled that a case cannot be removed from a State court into the Circuit Court of the United States on the sole ground that it is one arising under the Constitution, laws or treaties of the United States, unless that appears by plaintiff’s statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. And moreover that jurisdiction is not conferred by allegations that defendant intends to assert a defence based on the Constitution or a law or treaty of the United States, or under statutes of the United States, or of a State, in conflict with the Constitution.”

[299]5 Cr. 61 (1809).

[300]9 Wheat. 738 (1824).

[301]115 U.S. 1 (1885).

[302]22 Stat. 162, § 4 (1882).

[303]38 Stat. 803, § 5 (1915).

[304]43 Stat. 936, 941 (1925); 28 U.S.C.A. § 1349.

[305]3 Stat. 195, 198 (1815).

[306]4 Stat. 632, 633, § 3 (1833).

[307]12 Stat. 755, 756, § 5 (1863).

[308]28 U.S.C.A. § 1442 (a) (1).

[309]100 U.S. 257 (1880).

[310]1 Wheat. 304 (1816).

[311]6 Wheat. 264 (1821).

[312]100 U.S. 257, 264. See also The Mayor of Nashville v. Cooper, 6 Wall. 247 (1868).

[313]Lovell v. City of Griffin, 303 U.S. 444 (1938).

[314]Stoll v. Gottlieb, 305 U.S. 165 (1938).

[315]Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938).

[316]Southwestern Bell Telephone Co. v. Oklahoma, 303 U.S. 206 (1938).

[317]Adam v. Saenger, 303 U.S. 59, 164 (1938).

[318]United Gas Public Service Co. v. Texas, 303 U.S. 123, 143 (1938).

[319]279 U.S. 159 (1929).

[320]Lane v. Wilson, 307 U.S. 268, 274 (1939). It is fairly obvious, of course, that whether State courts have exceeded their powers under the State Constitution is not a federal question. This rule was applied in Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 512 (1938), where it was contended that instead of construing a State statute, the courts had actually amended it by a species of judicial legislation prohibited by the State constitution.

[321]United States v. Ravara, 2 Dall. 297 (1793).

[322]Börs v. Preston, 111 U.S. 252 (1884).

[323]Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).

[324]280 U.S. 379, 383-384 (1930).

[325]11 Wheat. 467 (1826).

[326]135 U.S. 403, 432 (1890).

[327]Ex parte Gruber, 269 U.S. 302 (1925).

[328]1 Stat. 73 (1789).

[329]See W.W. Willoughby, The Constitutional Law of the United States, III, 1339, 1347 (New York, 1929).

[330]Willoughby, op. cit., III, 1339.

[331]1 Stat. 73, § 9 (1789).

[332]Justice Washington in Davis v. Brig Seneca, 21 Fed. Cas. No. 12,670 (1829).

[333]The “Vengeance,” 3 Dall. 297 (1796); The “Schooner Sally,” 2 Cr. 406 (1805); The “Schooner Betsey,” 4 Cr. 443 (1808); The “Samuel,” 1 Wheat. 9 (1816); The “Octavia,” 1 Wheat. 20 (1816).

[334]New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344, 386 (1848).

[335]Waring v. Clarke, 5 How. 441 (1847); Ex parte Easton, 95 U.S. 68 (1877); North Pacific S.S. Co. v. Hall Brothers M.R. & S. Co., 249 U.S. 119 (1919); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922).

[336]Sheppard v. Taylor, 5 Pet. 675, 710 (1831).

[337]New England M. Ins. Co. v. Dunham, 11 Wall. 1, 31 (1871).

[338]Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900).

[339]Atlee v. Northwestern Union P. Co., 21 Wall. 389 (1875); Ex parte McNiel, 13 Wall. 236 (1872).

[340]O’Brien v. Miller, 168 U.S. 287 (1897); The “Grapeshot” v. Wallerstein, 9 Wall. 129 (1870).

[341]New Bedford Dry Dock Co. v. Purdy, 258 U.S. 95 (1922); North Pac. S.S. Co. v. Hall Bros. M.R. & S. Co., 249 U.S. 119 (1919); The General Smith, 4 Wheat. 438 (1819).

[342]New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344 (1848).

[343]Ex parte Easton, 95 U.S. 68 (1877).

[344]Andrews v. Wall, 3 How. 568 (1845).

[345]Janney v. Columbia Ins. Co., 10 Wheat. 411, 412, 415, 418 (1825), cited by Justice Story in The “Tilton,” 23 Fed. Cas. No. 14,054 (1830).

[346]95 U.S. 68, 72 (1877).

[347]The “Belfast” v. Boon, 7 Wall. 624 (1869).

[348]Ex parte Garnett, 141 U.S. 1 (1891).

[349]The “City of Panama,” 101 U.S. 453 (1880); see also Kenward v. “Admiral Peoples,” 295 U.S. 649 (1935); The “Harrisburg,” 119 U.S. 199 (1886). Although a suit for damages for wrongful death will not lie in the courts of the United States under the general maritime law, admiralty courts will enforce a State law creating liability for wrongful death. Just v. Chambers, 312 U.S. 383 (1941).

[350]The “Raithmoor,” 241 U.S. 166 (1916); Erie R. Co. v. Erie & Western T. Co., 204 U.S. 220 (1907). See also Canadian Aviator v. United States, 324 U.S. 215 (1945).

[351]L’Invincible, 1 Wheat. 238 (1816). See also In re Fassett, 142 U.S. 479 (1892).

[352]Sherlock v. Alling, 93 U.S. 99, 104 (1876). See also Old Dominion S.S. Co. v. Gilmore (The “Hamilton”), 207 U.S. 398 (1907).

[353]Jennings v. Carson, 4 Cr. 2 (1807); Taylor v. Carryl, 20 How. 583 (1857).

[354]Thirty Hogsheads of Sugar v. Boyle, 9 Cr. 191 (1815); The Siren, 13 Wall. 389, 393 (1871).

[355]Hudson v. Guestier, 4 Cr. 293 (1808).

[356]La Vengeance, 3 Dall. 297 (1796); Church v. Hubbart, 2 Cr. 187 (1804); The Schooner Sally, 2 Cr. 406 (1805).

[357]The Brig. Ann, 9 Cr. 289 (1815); The Sarah, 8 Wheat. 391 (1823); Maul v. United States, 274 U.S. 501 (1927).

[358]Section 9 of the original Judiciary Act, since carried over in 28 U.S.C.A. § 1333, saves to suitors such a common law remedy.

[359]For example, the Court stated in The “Moses Taylor” v. Hammons, 4 Wall. 411, 431 (1867), that a proceeding in rem as used in the admiralty courts, is not a remedy afforded by the common law and that a proceeding in rem is essentially a proceeding possible only in admiralty.

[360]318 U.S. 133 (1943). In the course of his opinion for the Court which contains a lengthy historical account of Admiralty jurisdiction in this country, Chief Justice Stone cited Smith v. Maryland, 18 How. 71 (1855), where the Court without discussion sustained the seizure and forfeiture of a vessel in a judgment in rem of a State court for violation of a Maryland fishing law within the navigable waters of the State.

[361]Judiciary Act of 1789, 1 Stat. 73, § 9; La Vengeance, 3 Dall. 297 (1796); United States v. The Schooner Sally, 2 Cr. 406 (1805); United States v. Schooner Betsey and Charlotte, 4 Cr. 443 (1808); Whelan v. United States, 7 Cr. 112 (1812); The Samuel, 1 Wheat. 9 (1816).

[362]Hendry v. Moore, 318 U.S. 133, 141 (1943).

[363]Charles Warren, The Supreme Court in United States History, II, 93-95 (Boston, 1922).

[364]10 Wheat. 428 (1825).

[365]5 How. 441 (1847). See also New Jersey Steam Nav. Co. v. Merchants’ Bank, 6 How. 344 (1848). Aside from rejecting English rules, Waring v. Clarke did not affect the rule concerning the ebb and flow of the tide, inasmuch as the collision occurred within the ebb and flow of the tide, though within the body of a county. Citing Peyroux v. Howard, 7 Pet. 324 (1833); The “Orleans” v. Phoebus, 11 Pet. 175 (1837); The “Thomas Jefferson,” 10 Wheat. 328 (1825); United States v. Coombs, 12 Pet. 72 (1838).

[366]12 How. 443 (1852).

[367]Soon afterwards in Jackson v. Steamboat Magnolia, 20 How. 296 (1858), the Court rejected what was left of narrow doctrines of the extent of admiralty jurisdiction by holding that a collision on the Alabama river above tidal flow and wholly within the State of Alabama came within the grant of admiralty jurisdiction in the Judiciary Act of 1789 which extended it “to rivers navigable from the sea * * * as well as upon the high seas.”

[368]See Warren, II, 512-513.

[369]109 U.S. 629 (1884); see also Perry v. Haines, 191 U.S. 17 (1903) where the admiralty jurisdiction was extended to inland canals.

[370]10 Wall. 557 (1871).

[371]Ibid. 563. See also The Montello, 20 Wall. 430 (1874), where this doctrine was applied to the Fox River in Wisconsin after it had been improved to become navigable.

[372]141 U.S. 1, 12-15 (1891). This case contains a good review of admiralty cases to the time of its decision.

[373]311 U.S. 377, 407-410 (1940).

[374]316 U.S. 31, 41 (1942).

[375]3 Wheat. 336 (1818). See also Manchester v. Massachusetts, 139 U.S. 240 (1891) which followed this rule and which seems to contain a rule analogous to the “silence of Congress” doctrine applied in cases involving State legislation which affect interstate commerce.

[376]Ibid. 389.

[377]The St. Lawrence, 1 Bl. 522, 527 (1862).

[378]The “Lottawanna,” 21 Wall. 558, 576, (1875); see also Janney v. Columbian Ins. Co., 10 Wheat. 411, 418 (1825), where it was held that the admiralty jurisdiction rests on the grant in the Constitution and can only be exercised under the laws of the United States extending that grant to the respective courts of the United States.

[379]4 Wall. 411, 431, (1867); The Hine v. Trevor, 4 Wall. 555 (1867).

[380]Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900); Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 (1924).

[381]Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918).

[382]Rodd v. Heartt, 21 Wall. 558 (1875).

[383]Old Dominion S.S. Co. v. Gilmore, 207 U.S. 398 (1907).


[385]312 U.S. 383 (1941).

[386]244 U.S. 205 (1917).

[387]Ibid. 202, 215-218. This was a five to four decision with Justices Holmes, Pitney, Brandeis, and Clarke dissenting. Justice Holmes’ dissent is notable among other reasons for his epigrams that “Judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions,” ibid. 221; and that “the common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or some quasi-sovereign that can be identified.” Ibid. 222. Justice Pitney attacked the decision as unsupported by precedent and contended that article III speaks only of jurisdiction and does not prescribe the procedural or substantive law by which the exercise of admiralty jurisdiction is to be governed. Ibid. 225-229.

[388]40 Stat. 395 (1917).

[389]253 U.S. 149 (1920).

[390]Ibid. 160. For the discussion of the statute as an invalid delegation of power, see ibid. 163-166. Justice Holmes wrote a dissent in which Justices Pitney, Brandeis and Clarke concurred.

[391]42 Stat. 634 (1922); overturned in Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924).

[392]44 Stat. 1424.

[393]Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128 (1930); Vancouver S.S. Co. v. Rice, 288 U.S. 445 (1933).

[394]244 U.S. 205, 216.

[395]317 U.S. 249 (1942).

[396]Ibid. 252.

[397]Ibid. 253. Citing Baizley Iron Works v. Span, 281 U.S. 222, 230 (1930).

[398]317 U.S. 249 (1942). Cases cited as strengthening the claim were Sultan Ry. & Timber Co. v. Dept. of Labor, 277 U.S. 135 (1928); Grant Smith-Porter Co. v. Rohde, 257 U.S. 469 (1922); Millers’ Underwriters v. Braud, 270 U.S. 59 (1926); Ex parte Rosengrant, 213 Ala. 202 (104 So. 409), affirmed 273 U.S. 664 (1927); State Industrial Board of New York v. Terry & Tench Co., 273 U.S. 639 (1926); Alaska Packers Asso. v. Industrial Accident Commission, 276 U.S. 467 (1928). Cases cited against the claim were Baizley Iron Works v. Span, 281 U.S. 222 (1930); Gonsalves v. Morse Dry Dock Co., 266 U.S. 171 (1924); Nogueira v. N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930); Northern Coal & Dock Co. v. Strand, 278 U.S. 142 (1928); Employers’ Liability Assurance Co. v. Cook, 281 U.S. 233 (1930). Justice Black also cites Stanley Morrison, Workmen’s Compensation and the Maritime Law, 38 Yale L.J. 472 (1929). In the Davis case the Court was not guilty of exaggeration when it declared that “the very closeness of the cases cited * * * has caused much serious confusion,” and went on to picture rather vividly the jurisdictional dilemma of an injured employee who might suffer great financial loss as a result of the delay and expense if he guessed wrong, and might even discover that his claim was “barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere.” 317 U.S. 249, 254. Likewise the dilemma affected employers who might not be protected by contributions to a State fund and at the same time be liable for substantial additional payments. The Court had harsh words for the Jensen rule but indicated that its reversal would not solve the problem. Ibid. 256. Justice Black also pointed to Parker v. Motor Boat Sales, 314 U.S. 244 (1941), where the Court, after stating that Congress by the Longshoremen’s Act accepted the Jensen line of demarcation between State and federal jurisdiction, had proceeded to hold that, in shadowy cases where the claimant was in a twilight zone he was entitled to recover under the State statute in the absence of federal administrative action under the Longshoremen’s Act on the ground of its constitutionality. In brief it would seem that in shadowy cases a claimant may elect either a federal court applying the Longshoremen’s Act or a State forum applying the State compensation law.

[399]317 U.S. 219, 259.

[400]21 Wall. 558 (1875).

[401]Ibid. 572.

[402]Ibid. 574-575.

[403]The “Lottawanna,” 21 Wall. 558, 577.

[404]In re Garnett, 141 U.S. 1, 12 (1891).

[405]Ibid. 14.

[406]244 U.S. 205, 215 (1917), citing Butler v. Boston & Savannah S.S. Co., 130 U.S. 527 (1889), and In re Garnett, 141 U.S. 1 (1891).

[407]253 U.S. 149, 160 (1920).

[408]328 U.S. 1, 5 (1946), citing O’Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 40 (1943), and the cases cited therein.

[409]Davis v. Department of Labor, 317 U.S. 249 (1942).

[410]2 Commentaries (2d ed., Boston, 1851), § 1674.

[411]Dugan v. United States, 3 Wheat. 172 (1818).

[412]United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. Beebe, 127 U.S. 338 (1888); United States v. American Bell Tel. Co., 128 U.S. 315 (1888).

[413]United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).

[414]28 U.S.C.A. §§ 1331-1332. The original jurisdiction of the Supreme Court does not extend to suits brought by the United States against persons or corporations alone. See also Revised Statutes, §§ 565, 629. United States v. West Virginia, 295 U.S. 463 (1935).

[415]136 U.S. 211 (1890).

[416]United States v. Texas, 143 U.S. 621 (1892).

[417]Ibid. 642-646. This suit, it may be noted, was specifically authorized by the act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92, § 25.

[418]United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against a State by the United States, see United States v. Michigan, 190 U.S. 379 (1903).

[419]295 U.S. 463, 471-475 (1935).

[420]United States v. Utah, 283 U.S. 64 (1931).

[421]United States v. California, 332 U.S. 19 (1947).

[422]United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950).

[423]2 Dall. 419, 478 (1793).

[424]6 Wheat. 264, 412 (1821).

[425]8 Pet. 436, 444 (1834).

[426]United States v. McLemore, 4 How. 286 (1846); Hill v. United States, 9 How. 386, 389 (1850); DeGroot v. United States, 5 Wall. 419, 431 (1867); United States v. Eckford, 6 Wall. 484, 488 (1868); The Siren, 7 Wall. 152, 154 (1869); Nichols v. United States, 7 Wall. 122, 126 (1869); The Davis, 10 Wall. 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437-439 (1879). “It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons v. United States, 8 Wall. 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 (1913); Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). The reason for such immunity as stated by Mr. Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is because ‘there can be no legal right as against the authority that makes the law on which the right depends.’ See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority—which is clearly an agency of the United States—partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards case, 258 U.S. 549, 570 (1922); Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other Government-owned corporations have been held liable for their wrongful acts.” 39 Op. Atty. Gen. 559, 562 (1938).

[427]106 U.S. 196 (1882).

[428]Lonergan v. United States, 303 U.S. 33 (1938).

[429]United States v. N.Y. Rayon Importing Co., 329 U.S. 654 (1947).

[430]United States v. Shaw, 309 U.S. 495 (1940). Here it was said that the reasons for sovereign immunity “partake somewhat of dignity and decorum, somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government, as distinct from its functionaries may operate undisturbed by the demands of litigants,” ibid. 500-501. The Court went on to hold that when the United States took possession of the assets of Fleet Corporation and assumed its obligations, it did not waive its immunity from suit in a State court on a counterclaim based on the Corporation’s breach of contract, ibid. 505. Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).

[431]Minnesota v. United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a State to acquire a right of way over lands owned by the United States and held in trust for Indian allottees.

[432]Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).

[433]United States v. Lee, 106 U.S. 196, 207-208 (1882). The principle of sovereign immunity was further disparaged in a brief essay by Justice Miller on the subject of the rule of law, as follows: “Under our system the people * * * are sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.” Ibid. 208-209.

[434]204 U.S. 331 (1907).

[435]Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).

[436]162 U.S. 255 (1896). At page 271 Justice Gray endeavors to distinguish between this and the Lee Case. It was Justice Gray who spoke for the dissenters in the Lee Case.

[437]Land v. Dollar, 330 U.S. 731, 737 (1947). Justice Douglas cites for this proposition Cunningham v. Macon & B.R. Co., 109 U.S. 446, 452 (1883); Tindal v. Wesley, 167 U.S. 204 (1897); Smith v. Reeves, 178 U.S. 436, 439 (1900); Scranton v. Wheeler, 179 U.S. 141, 152, 153 (1900); Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 620 (1912); Goltra v. Weeks, 271 U.S. 536 (1926). This last case actually extended the rule of the Lee Case and was virtually overruled in Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949).

[438]Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917); Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481 (1925); Minnesota v. United States, 305 U.S. 382 (1939); Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock, 185 U.S. 373 (1902). For a review of the cases dealing with sovereign immunity see Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 (1946).

[439]Cunningham v. Macon & B.R. Co., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 698 (1949).

[440]Larson v. Domestic & Foreign Corp., supra, 708. Justice Frankfurter’s dissent also contains a useful classification of immunity cases and an appendix listing them.

[441]330 U.S. 731, 735 (1947). The italics are added.

[442]337 U.S. 682 (1949).

[443]Ibid. 689-697.

[444]Ibid. 701-702. This rule was applied in United States ex rel. Goldberg v. Daniels, 231 U.S. 218 (1914), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. The suit was held to be against the United States. See also Perkins, Secretary of Labor v. Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government’s authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. In the Larson Case the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536 (1926), but in effect overruled it. The Goltra Case involved an attempt of the Government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespass.

[445]337 U.S. 682, 703-704. Justice Frankfurter, dissenting, would have applied the rule of the Lee Case.

[446]Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709-710 (1949).

[447]Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 224 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10 (1896); and International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904).

[448]Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); and Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939) which held that one threatened with direct and special injury by the act of an agent of the Government under a statute may challenge the constitutionality of the statute in a suit against the agent.

[449]Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S. 606 (1918).

[450]United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947).

[451]306 U.S. 381 (1939).

[452]Federal Housing Authority v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a Congressional waiver of immunity in the case of a government corporation did not mean that funds or property of the United States can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity.

[453]United States v. United States Fidelity Co., 309 U.S. 506 (1940).

[454]Charles Warren, The Supreme Court and Disputes Between States, Bulletin of the College of William and Mary, Vol. 34, No. 5, pp. 7-11 (1940). For a more comprehensive treatment of backgrounds as well as the general subject, see Charles Warren, The Supreme Court and Sovereign States, (Princeton, 1924).

[455]Warren, The Supreme Court and Disputes Between States, p. 13. However, only three such suits were brought in this period, 1789-1849. During the next 90 years, 1849-1939, at least twenty-nine such suits were brought. Ibid. 13, 14.

[456]2 Dall. 419 (1793).

[457]Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838).

[458]Ibid. 736-737.

[459]Ibid. 737. Chief Justice Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Ibid. 752-753. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two States, to which neither State is a party does not come within the original jurisdiction of the Supreme Court. Fowler v. Lindsay, 3 Dall. 411 (1799).

[460]180 U.S. 208 (1901).

[461]Kansas v. Colorado, 206 U.S. 46 (1907).

[462]283 U.S. 336 (1931).

[463]Ibid. 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945), for the restatement of the familiar principle that the power of apportionment among several States of waters of an interstate river where the demands of the users exceeds the supply is a matter of sufficient importance and dignity as to be justiciable in the Supreme Court.

[464]South Dakota v. North Carolina, 192 U.S. 286 (1904).

[465]Virginia v. West Virginia, 220 U.S. 1 (1911). This case is also significant for Justice Holmes’ statement that, “The case is to be considered in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this Court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State alone.” Ibid. 27.

[466]Kentucky v. Indiana, 281 U.S. 163 (1930).

[467]Texas v. Florida et al., 306 U.S. 398 (1939).

[468]Pennsylvania and Ohio v. West Virginia, 262 U.S. 553 (1923).

[469]12 Pet. 657 (1838).

[470]6 Wheat. 264, 378 (1821).

[471]291 U.S. 286 (1934).

[472]Massachusetts v. Missouri, 308 U.S. 1, 15-16 (1939), citing Florida v. Mellon, 273 U.S. 12 (1927).

[473]306 U.S. 398 (1939).

[474]308 U.S. 1, 17, citing Oklahoma v. Atchison, T. & S.F.R. Co., 220 U.S. 277, 286 (1911), and Oklahoma v. Cook, 304 U.S. 387, 394 (1938). See also New Hampshire v. Louisiana, 108 U.S. 76 (1883), which held that a State cannot bring a suit on behalf of its citizens to collect on bonds issued by another State, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a State cannot sue another to prevent maladministration of quarantine laws.

[475]308 U.S. 1, 17.

[476]Ibid. 19.

[477]The various litigations of Virginia v. West Virginia are to be found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S. 531 (1916); 246 U.S. 565 (1918).

[478]246 U.S. 565, 591.

[479]Ibid. 600.

[480]Ibid. 601.

[481]Warren, The Supreme Court and Sovereign States, 79.

[482]2 Dall. 419 (1793).

[483]Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926).

[484]Pennsylvania v. Quicksilver Min. Co., 10 Wall. 553 (1871); California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).

[485]Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

[486]4 Wall. 475 (1867).

[487]6 Wall. 50 (1868).

[488]262 U.S. 447 (1923).

[489]273 U.S. 12 (1927).

[490]Oklahoma v.. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911); Oklahoma v. Cook, 304 U.S. 387 (1938).

[491]6 Wheat. 264, 398-399 (1821).

[492]Pennsylvania v. Quicksilver Min. Co., 10 Wall. 553 (1871).

[493]California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).

[494]6 Wheat. 264, 398-399.

[495]127 U.S. 265 (1888).

[496]2 Dall. 419, 431-432 (1793).

[497]127 U.S. 265, 289-300. This case also follows the general rule that a corporation chartered by the laws of a State, is a citizen of that State for purposes of federal jurisdiction.

[498]304 U.S. 387 (1938).

[499]220 U.S. 277, 286-289 (1911).

[500]316 U.S. 159 (1942).

[501]220 U.S. 277 (1911).

[502]324 U.S. 439 (1945).

[503]206 U.S. 230 (1907). Here the Court entertained a suit by Georgia and enjoined the Copper company from discharging noxious gases from their works in Tennessee over Georgia’s territory.

[504]324 U.S. 439, 447-448, citing and quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

[505]324 U.S. 439, 450, citing Missouri v. Illinois, 180 U.S. 208, 219-224, 241 (1901); Virginia v. West Virginia, 246 U.S. 565, 599 (1918); Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

[506]Ibid. 451, 468. Chief Justice Stone, joined by Justices Roberts, Frankfurter, and Jackson dissented on the ground that the suit actually was one for a district court, that a State is without standing to maintain suit for injuries sustained by its citizens and residents for which they may sue in their own behalf, and that as presented the suit was not one in which a court of equity could give effective relief.

[507]2 Cr. 445, 452-453 (1805).

[508]Ibid. 453.

[509]New Orleans v. Winter et al., 1 Wheat. 91 (1816).

[510]54 Stat. 143 (1940); 28 U.S.C.A. 1332.

[511]337 U.S. 582 (1949).

[512]Ibid. 583-604.

[513]Ibid. 604-625.

[514]Ibid. 626-646.

[515]Ibid. 646-655.

[516]Ibid. 655.

[517]Knox v. Greenleaf, 4 Dall. 360 (1802).

[518]Shelton v. Tiffin, 6 How. 163 (1848).

[519]Williamson v. Osenton, 232 U.S. 619 (1014).

[520]Shelton v. Tiffin, 6 How. 163 (1848).

[521]Williamson v. Osenton, 232 U.S. 619 (1914).

[522]Jones v. League, 18 How. 76 (1855).

[523]Shelton v. Tiffin, 6 How. 163 (1848).

[524]5 Cr. 61, 86 (1809).

[525]14 Pet. 60 (1840).

[526]Strawbridge v. Curtiss, 3 Cr. 267 (1806). The Slocomb Case had to be dismissed because two members of the defendant corporation were citizens of the same State as the plaintiffs.

[527]2 How. 497 (1844).

[528]Ibid. 558.

[529]Muller v. Dows, 94 U.S. 444, 445 (1877). This fiction had its beginning in Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329 (1854) and attained final approval in St. Louis & S.F. Ry. Co. v. James, 161 U.S. 545, 554 (1896).

[530]John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New York, 1927), 34.

[531]Dodge v. Woolsey, 18 How. 331 (1856); Mechanics’ & Traders’ Bank v. Debolt, 18 How. 380 (1856).

[532]Gray, op. cit., 185-186. Although Justice Wayne criticized the Strawbridge Case as going too far, later developments in determining the citizenship of corporations, have enabled the Court to restore it to its original status. Consequently the rule still requires that to maintain a diversity proceeding all the parties on one side must be citizens of different States from all the parties on the other side. Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939); City of Indianapolis v. Chase National Bank, 314 U.S. 63 (1941).

[533]See Southern Realty Co. v. Walker, 211 U.S. 603 (1909), where two Georgians who conducted all of that business in Georgia created a sham corporation in South Dakota for the sole purpose of bringing suits in the federal courts which ordinarily would have been brought in the Georgia courts. Diversity jurisdiction was held not to exist because of collusion.

[534]Black and White Taxicab & T. Co. v. Brown & Yellow Taxicab & T. Co., 276 v. U.S. 518 (1928).

[535]16 Pet. 1 (1842).

[536]16 Pet. 1.

[537]Ibid. 19. Justice Story concluded this portion of the opinion as follows: “The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. 883, 887, to be in great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac, sed et apud omenes gentes, et omni tempore una eademque lex obtinebit.” Ibid. 9.

[538]See Simeon E. Baldwin, The American Judiciary (New York, 1920), 169-170. See also Justice Catron’s statement in Swift v. Tyson, 16 Pet. 1, 23.

[539]The Tyson doctrine was extended to wills in Lane v. Vick, 3 How. 464 (1845); to torts in Chicago City v. Robbins, 2 Bl. 418 (1862); to real estate titles and the rights of riparian owners in Yates v. Milwaukee, 10 Wall. 497 (1870); to mineral conveyances in Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910); to contracts in Rowan v. Runnels, 5 How. 134 (1847); and to the right to exemplary or punitive damages in Lake Shore & M.S.R. Co. v. Prentice, 147 U.S. 101 (1893). By 1888 there were 28 kinds of cases in which federal and State courts applied different rules of the common law. See George C. Holt, The Concurrent Jurisdiction of the Federal and State Courts (New York, 1888), 159-188.

[540]Rowan v. Runnels, 5 How. 134 (1847); Gelpcke v. Dubuque, 1 Wall. 175 (1864).

[541]Williamson v. Berry, 8 How. 495 (1850); Pease v. Peck, 18 How. 595 (1856); Watson v. Tarpley, 18 How. 517 (1856).

[542]Lane v. Vick, 3 How. 464 (1845); Williamson v. Berry, 8 How. 495 (1850); Gelpcke v. Dubuque, 1 Wall. 175 (1864).

[543]149 U.S. 308, 401-404 (1893).

[544]215 U.S. 349, 370 (1910).

[545]276 U.S. 518 (1928).

[546]Ibid. 533. Justice Holmes was influenced in part by the article of Charles Warren, New Light On The History Of The Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced evidence to show that Justice Story’s interpretation in the Tyson Case was contrary to the intention of the framers of the act. Mr. Warren did not, however, contend that the Tyson rule was unconstitutional. Justice Holmes was joined in his dissent by Justices Brandeis and Stone. In addition to judicial dissatisfaction with the Tyson rule as manifested in dissents, disapproval in Congressional quarters resulted in bills by Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27, 1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st Cong., 1st. sess.

[547]293 U.S. 335 (1934).

[548]This concept was first used by Justice Bradley in Burgess v. Seligman, 107 U.S. 21 (1883).

[549]293 U.S. 335, 339.

[550]304 U.S. 64 (1938).

[551]304 U.S. 64, 69-70, 77-78.

[552]Ibid. 79-80.

[553]304 U.S. 64, 80-90.

[554]Ibid. 90, 91-92.

[555]311 U.S. 223 (1940).

[556]311 U.S. 169 (1940). This decision has been thoroughly criticized by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762 (1941). See also Mitchell Wendell, Relations Between Federal and State Courts (New York, 1949), 209-223. This book contains a good account of the operation of the Tyson and Tompkins rules, pp. 113-247.

[557]333 U.S. 153 (1948). For other cases applying the rule that decisions of State intermediate courts are binding unless there is convincing evidence that the State law is otherwise, see Six Companies of California v. Highway Dist., 311 U.S. 180 (1940); Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940).

[558]Vandenbark v. Owens-Illinois Co., 311 U.S. 538 (1941).

[559]28 U.S.C.A. § 1652; 62 Stat. 944 (1948). In 1938, the year of the Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 § 5) was superseded; and from that time until the enactment of 62 Stat. 944, the federal courts were guided in diversity cases by the Federal Rules of Civil Procedure formulated by the Supreme Court by virtue of the authority delegated it, in 1934, by 48 Stat. 1064.

[560]Ruhlin v. New York Life Ins. Co., 304 U.S. 202 (1938).

[561]326 U.S. 99 (1945).

[562]Ibid. 108-109.

[563]Ibid. 109. Justice Rutledge wrote a dissent in which Justice Murphy concurred. Justice Rutledge objected to the rigid application of a statute of limitations to suits in equity and to the implication that Congress could not authorize federal courts to administer equitable relief in accordance with the substantive rights of the parties, notwithstanding State statutes of limitations barring such suits in State courts. In his view, if any change were to be made, it was for Congress and not the Court to make it. In line with this ruling see Ragan v. Merchants Transfer & W. Co., 337 U.S. 530 (1949); also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949).

[564]2 Story, Commentaries, 467 § 1696 (2d. ed., 1851).

[565]An interesting case which reached the Supreme Court under this clause was Pawlet v. Clark, 9 Cr. 292 (1815). In his opinion for the Court, Justice Story took occasion to assert that grants of land by a State to a town could not afterwards be repealed so as to divest the town of its rights under the grant. Ibid. 326; cf. Trenton v. New Jersey, 262 U.S. 182 (1923).

[566]The Exchange v. McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).

[567]Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934).


[569]The “Sapphire,” 11 Wall. 164, 167 (1871).

[570]Ibid. 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit, or to continue one that has been brought.

[571]Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938); citing Jones v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign State is, of course, a political question.

[572]Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938); citing United States v. The Thekla, 266 U.S. 328, 340, 341 (1924); United States v. Stinson, 197 U.S. 200, 205 (1905); The Davis, 10 Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). See also Ex parte Republic of Colombia, 195 U.S. 604 (1904).

[573]Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938). Among other benefits which the Court cites as not extending to foreign States as litigants include exemption from costs and from giving discovery. Decisions are also cited to the effect that a sovereign plaintiff “should so far as the thing can be done, be put in the same position as a body corporate.” Ibid, note 2, pp. 134-135.

[574]5 Pet. 1, 16-20 (1831).

[575]Hodgson & Thompson v. Bowerbank, 5 Cr. 303 (1809).

[576]Jackson v. Twentyman, 2 Pet. 136 (1829).

[577]Susquehanna & Wyoming V.R. & C. Co. v. Blatchford, 11 Wall. 172 (1871). See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens.

[578]Browne v. Strode, 5 Cr. 303 (1809).

[579]2 Dall. 419 (1793). For an earlier case where the point of jurisdiction was not raised, see Georgia v. Brailsford, 2 Dall. 402 (1792). For subsequent cases prior to 1861, see Rhode Island v. Massachusetts, 12 Pet. 657 (1838); Florida v. Georgia, 17 How. 478 (1855).

[580]Kentucky v. Dennison, 24 How. 66, 98 (1861).

[581]1 Cr. 137 (1803).

[582]Ibid. 174. See also Wiscart v. Dauchy, 3 Dall. 321 (1796). This exclusive interpretation of article III posed temporary difficulties for Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), where he gave a contrary interpretation to other provisions of the Article. The exclusive interpretation as applied to original jurisdiction of the Supreme Court has been followed in Ex parte Bollman, 4 Cr. 75 (1807); New Jersey v. New York, 5 Pet. 284 (1831); Ex parte Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864); and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex parte Levitt, Petitioner, 302 U.S. 633 (1937), the Court was asked to purge itself of Justice Black on the ground that his appointment to it violated the second clause of section 6 of Article I. Although it rejected petitioner’s application, it refrained from pointing out that it was being asked to assume original jurisdiction contrary to the holding in Marbury v. Madison.

[583]252 U.S. 416 (1920).

[584]262 U.S. 447 (1923).

[585]157 U.S. 229, 261 (1895). Here the Court refused to take jurisdiction on the ground that the City of Oakland and the Oakland Water Company, a citizen of California, were so situated that they would have to be brought into the case, which would make it then a suit between a State and citizens of another State and its own citizens. The same rule was followed in New Mexico v. Lane, 243 U.S. 52, 58 (1917); and in Louisiana v. Cummins, 314 U.S. 577 (1941). See also Texas v. Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the original jurisdiction of the Supreme Court in specific classes of cases see the discussion of suits affecting ambassadors and suits between States, supra, pp. 571, 591-593.

[586]Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884).

[587]127 U.S. 265 (1888).

[588]1 Stat. 73, 80.

[589]127 U.S. 265, 297. Note also the dictum in Cohens v. Virginia, 6 Wheat. 264, 398-399 (1821) to the effect that “* * * the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases in which an original suit might not be instituted in a federal court. Of the last description, is every case between a State and its citizens, and, perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction.”

[590]Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930).

[591]3 Dall. 321 (1796). Justice Wilson dissented from this holding and contended that the appellate jurisdiction, as being derived from the Constitution, could be exercised without an act of Congress or until Congress made exceptions to it.

[592]Durousseau v. United States, 6 Cr. 307 (1810).

[593]6 Wall. 318 (1868); 7 Wall. 506 (1869).

[594]15 Stat. 44 (1868).

[595]7 Wall. 506, 514. The Court also took occasion to reiterate the rule that an affirmation of appellate jurisdiction is a negative of all other and stated that as a result acts of Congress providing for the exercise of jurisdiction had “come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to * * * it.” It continued grandly: “* * * judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer.” Ibid. 513, 515.

[596]See especially the parallel case of Ex parte Yerger, 8 Wall. 85 (1869). For cases following Ex parte McCardle, see Railroad Co. v. Grant, 98 U.S. 398, 491 (1878); Kurtz v. Moffitt, 115 U.S. 487, 497 (1885); Cross v. Burke, 146 U.S. 82, 86 (1892); Missouri v. Missouri Pacific R. Co., 292 U.S. 13, 15 (1934); Stephan v. United States, 319 U.S. 423, 426 (1943). See also United States v. Bitty, 208 U.S. 393, 399-400 (1908), where it was held that there is no right to appeal to the Supreme Court except as an act of Congress confers it.

[597]105 U.S. 381 (1882).

[598]Ibid. 386. See also Barry v. Mercein, 5 How. 103, 119 (1847); National Exchange Bank v. Peters, 144 U.S. 570 (1892); American Construction Co. v. Jacksonville T. & K.W.R. Co., 148 U.S. 372 (1893); Colorado Central Consol. Min. Co. v. Turck, 150 U.S. 138 (1893); St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 281 (1908); Luckenbach S.S. Co. v. United States, 272 U.S. 533 (1926).

[599]1 Wheat. 304 (1816).

[600]Ibid. 374.

[601]Ibid. 331. This recognition, however, is followed by the statement that “the whole judicial power of the United States should be at all times, vested either in an original or appellate form, in some courts created under its authority.”

[602]2 Commentaries, §§ 1590-1595.

[603]1 Stat. 73, §§ 9-11.


[605]Ibid. §§ 14, 15, 17, 18.

[606]Ibid. § 16.

[607]Dall. 8 (1799).

[608]Ibid. 9.

[609]Ex parte Bollman, 4 Cr. 75, 93 (1807). Two years later Chief Justice Marshall in Bank of United States v. Deveaux, 5 Cr. 61 (1809), held for the Court that the right to sue does not imply a right to sue in a federal court unless conferred expressly by an act of Congress.

[610]7 Cr. 32 (1812).

[611]Ibid. 33.


[613]12 Pet. 657, 721-722 (1838).

[614]3 How. 236 (1845).

[615]Ibid. 244-245. To these sweeping assertions of legislative supremacy Justices Story and McLean took vigorous exception. They denied the authority of Congress to deprive the courts of power and vest it in an executive official because “the right to construe the laws in all matters of controversy is of the very essence of judicial power.” In their view the act as interpreted violated the principle of the separation of powers, impaired the independence of the judiciary, and merged the executive and judicial department. Dissent of Justice McLean, pp. 264 and following.

[616]8 How. 441 (1850).

[617]Ibid. 449.

[618]Rice v. M. & N.W.R. Co., 1 Bl. 358, 374 (1862); Mayor of Nashville v. Cooper, 6 Wall. 247, 251-252 (1868); United States v. Eckford, 6 Wall. 484, 488 (1868); Ex parte Yerger, 8 Wall. 85, 104 (1868); case of the Sewing Machine Companies, 18 Wall. 553, 557-558 (1874); Morgan v. Gay, 19 Wall. 81, 83 (1874); Gaines v. Fuentes, 92 U.S. 10, 18 (1876); Jones v. United States, 137 U.S. 202, 211 (1890); Holmes v. Goldsmith, 147 U.S. 150, 158 (1893); Johnson Steel Street Rail Co. v. Wharton, 152 U.S. 252, 260 (1894); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 513-521 (1898); Stevenson v. Fain, 195 U.S. 165, 167 (1904); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910); Kline v. Burke Construction Co., 260 U.S. 226, 233, 234 (1922). See also Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); Federal Power Commission v. Pacific Power & Light Co., 307 U.S. 156 (1939).

[619]Mayor of Nashville v. Cooper, 6 Wall. 247, 251-252 (1868). The rule of Cary v. Curtis and Sheldon v. Sill was restated with emphasis many years later in Kline v. Burke Construction Co., 260 U.S. 226, 233-234 (1922), where Justice Sutherland, speaking for the Court, proceeded to say to article III, §§ 1 and 2: “The effect of these provisions is not to vest jurisdiction in the inferior courts over the designated cases and controversies but to delimit those in respect of which Congress may confer jurisdiction upon such courts as it creates. Only the original jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. * * * The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. * * * And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or in part; and if withdrawn without a saving clause all pending cases though cognizable when commenced must fall.”

[620]56 Stat. 23 (1942).

[621]319 U.S. 182 (1943).

[622]321 U.S. 414 (1944).

[623]Ibid. 468.

[624]See infra, pp. 515-528.

[625]26 U.S.C.A. 3653.

[626]See for example Snyder v. Marks, 109 U.S. 189 (1883); Cheatham v. United States, 92 U.S. 85 (1875); Shelton v. Platt, 139 U.S. 591 (1891); Pacific Steam Whaling Co. v. United States, 187 U.S. 447 (1903); Dodge v. Osborn, 240 U.S. 118 (1916).

[627]Dodge v. Brady, 240 U.S. 122, 126 (1916).

[628]Hill v. Wallace, 259 U.S. 44 (1922); Lipke v. Lederer, 259 U.S. 557 (1922); Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509 (1932).

[629]Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv. L. Rev. 109 (1935).

[630]Allen v. Regents of University System of Georgia, 304 U.S. 439, 445-449 (1938).

[631]47 Stat. 70 (1932).

[632]Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552. 562-563 (1838); Milk Wagon Drivers’ Union v. Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).

[633]330 U.S. 258 (1947). Virginian R. Co. v. System Federation No. 40, 300 U.S. 515 (1937), in some ways constitutes an exception to section 9 of the statute by sustaining a mandatory injunction issued against an employer on the petition of employees on the ground that the prohibition of section 9 does not include mandatory injunctions, but “blanket injunctions which are usually prohibitory in form.” For other acts of Congress limiting the power of the federal courts to issue injunctions see infra, pp. 523-525.

[634]1 Wheat. 304 (1816).

[635]18 How. 272 (1856).

[636]285 U.S. 22 (1932).

[637]Ibid 56-57. Cf., however, Shields v. Utah, Idaho R. Co., 305 U.S. 185 (1938).

[638]Mayor of Nashville v. Cooper, 6 Wall. 247, 252 (1868); Kline v. Burke Construction Co., 260 U.S. 226, 233, 234 (1922). See also Hodgson v. Bowerbank, 5 Cr. 303, 304 (1809) where Chief Justice Marshall disposed of the effort of British subjects to docket a case in a circuit court, saying, “turn to the article of the Constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the Constitution.”

[639]Hayburn’s Case, 2 Dall. 409 (1792).

[640]United States v. Ferriera, 13 How. 40 (1852); Gordon v. United States, 117 U.S. 697 (1864); Muskrat v. United States, 219 U.S. 346 (1911).

[641]In addition to the cases cited in note 3, see Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).

[642]In addition to the cases cited in notes 2, 3, and 4 see Federal Radio Commission v. General Electric Co., 281 U.S. 464, 469 (1930); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923). See also the dissenting opinion of Justice Rutledge in Yakus v. United States, 321 U.S. 414, 468 (1944).

[643]Tutun v. United States, 270 U.S. 568 (1926), where the Court held that the United States is always a possible adverse party to a naturalization petition.

[644]Fong Yue Ting v. United States, 149 U.S. 698 (1893), where the Court sustained an act of Congress requiring the registration of Chinese and creating agencies for the expulsion of aliens unlawfully within the country and for the issuance of certificates to those entitled to remain. The act provided for special proceedings in such cases and prescribed the evidence the courts were to receive and the weight to be attached to it. The procedure was held to contain all the elements of a case—”a complainant, a defendant, and a judge—actor, reus, et judex.” pp. 728-729.

[645]La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899). Here the Court sustained an act of Congress which directed the Attorney General to bring a suit on behalf of the United States against the appellants to determine whether an award made by an international claims commission was obtained by fraud. The Court of Claims was vested with full jurisdiction with appeal to the Supreme Court to hear the case, decide it, to issue all proper decrees therein, and to enforce them by injunction. The Court regarded the money received by the United States from Mexico as property of the United States. This together with the interest of Congress in national honor in dealing with Mexico was sufficient to enable it to authorize a suit for the decision of a question “peculiarly judicial in nature.” pp. 458-459.

[646]Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).

[647]Taylor v. Carryl, 20 How. 583 (1858).

[648]1 Wheat. 304 (1816).

[649]6 Wheat. 264 (1821).

[650]21 How. 506 (1859).

[651]For a full account of this episode see Warren, Supreme Court in United States History, II, 193-194. See also Baldwin, The American Judiciary, 163.

[652]6 Pet. 515, 596 (1832). See also Warren, Supreme Court in United States History, II, 213; and Baldwin, op. cit., 164. It was Worcester v. Georgia which allegedly provoked the probably apocryphal comment attributed to President Jackson, “‘Well, John Marshall has made his decision, now let him enforce it.'” 2 Warren, Ibid. 219.

[653]Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485 (1900).

[654]Covell v. Heyman, 111 U.S. 176 (1884).

[655]Riehle v. Margolies, 279 U.S. 218 (1929); Harkin v. Brundage, 276 U.S. 36 (1928); Wabash R. Co. v. Adelbert College, 208 U.S. 38 (1908); Harkrader v. Wadley, 172 U.S. 148 (1898); Central National Bank v. Stevens, 169 U.S. 432 (1898); Shields v. Coleman, 157 U.S. 168 (1895); Moran v. Sturges, 154 U.S. 256 (1894); Krippendorf v. Hyde, 110 U.S. 276 (1884); Covell v. Heyman, 111 U.S. 176 (1884); Watson v. Jones, 13 Wall. 679 (1872); Buck v. Colbath, 3 Wall. 334 (1866); Freeman v. Howe, 24 How. 450 (1861); Orton v. Smith, 18 How. 263 (1856); Taylor v. Carryl, 20 How. 583 (1858); Peck v. Jenness, 7 How. 612 (1849). For later cases see Toucey v. New York Life Ins. Co., 314 U.S. 118 (1941). Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939); Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942); Mandeville v. Canterbury, 318 U.S. 47 (1943); Markham v. Allen, 326 U.S. 490 (1946); Propper v. Clark, 337 U.S. 472 (1949).

[656]McKim v. Voorhies, 7 Cr. 279 (1812); Duncan v. Darst, 1 How. 301 (1843); United States ex rel. Riggs v. Johnson County, 6 Wall. 166 (1868); Moran v. Sturges, 154 U.S. 256 (1894); Farmers’ Loan & Trust Co. v. Lake St. Elev. R. Co., 177 U.S. 51 (1900)

[657]6 Wall. 166 (1868).

[658]Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939). This case rests on the principle of comity that where there are two suits in rem or quasi in rem, as they were held to be here, so that the Court has possession of property which is the subject of litigation or must have control of it in order to proceed with the cause and grant the relief sought, the jurisdiction of one court must yield to that of the other. The principle, applicable to both federal and State courts, that the Court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, was held not to be confined to cases where the property has actually been seized under judicial process, but applies as well to suits brought for marshalling assets, administering trusts, or liquidating estates and to suits of a similar nature, where to give effect to its jurisdiction the Court must control the property.

[659]1 Stat. 335 (1793); 28 U.S.C.A. § 2283. In the judicial code an exception is made to proceedings in bankruptcy.

[660]Diggs v. Wolcott, 4 Cr. 179 (1807); Orton v. Smith, 18 How. 263 (1856); see especially Peck v. Jenness, 7 How. 612 (1849) where the Court held that the prohibition of the act of 1793 extended to injunction suits brought against the parties to a State court proceeding as well as to the State court itself.

[661]Freeman v. Howe, 24 How. 450 (1861); Julian v. Central Trust Co., 193 U.S. 93 (1904); Riverdale Cotton Mills v. Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Looney v. Eastern Texas R. Co., 247 U.S. 214 (1918).

[662]Farmers’ Loan & Trust Co. v. Lake St. Elev. R. Co., 177 U.S. 51 (1900); Riverdale Cotton Mills v. Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Julian v. Central Trust Co., 193 U.S. 93 (1904); Kline v. Burke Construction Co., 260 U.S. 226 (1922). For a discussion of this rule see Toucey v. New York Life Ins. Co., 314 U.S. 118, 134-136 (1941).

[663]Ex parte Young, 209 U.S. 123 (1908), is the leading case.

[664]Arrowsmith v. Gleason, 129 U.S. 86 (1889); Marshall v. Holmes, 141 U.S. 589 (1891); Simon v. Southern R. Co., 236 U.S. 115 (1915).

[665]French v. Hay, 22 Wall. 231 (1875); Dietzsch v. Huidekoper, 103 U.S. 494 (1881); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239 (1905).

[666]The earlier cases are Root v. Woolworth, 150 U.S. 401 (1893); Prout v. Starr, 188 U.S. 537 (1903); Juilian v. Central Trust Co., 193 U.S. 93 (1904).

[667]314 U.S. 118 (1941).

[668]Ibid. 133-141. Justice Reed, in a dissent in which Chief Justice Stone and Justice Roberts concurred, also reviewed the authorities.

[669]Southern Ry. Co. v. Painter, 314 U.S. 155 (1941).

[670]9 Wheat. 738 (1824).

[671]209 U.S. 123 (1908). See also Smyth v. Ames, 169 U.S. 466 (1898); Reagan v. Farmers’ Loan & Trust Co., 154 U.S. 362 (1894).

[672]Harkrader v. Wadley, 172 U.S. 148 (1898); In re Sawyer, 124 U.S. 200 (1888).

[673]Ex parte Young, 209 U.S. 123, 163 (1908).

[674]Ibid. 174. The Young case evoked sharp criticism in Congress and led to the enactment of § 266 of the Judicial Code, prohibiting the issuance of injunctions to restrain enforcement of State laws by a single federal judge, providing for a three-judge court in such cases, limiting the effect of temporary injunctions, and expediting appeals in such cases to the Supreme Court. Act of June 18, 1910, 36 Stat. 539; 28 U.S.C.A. § 1253, 2281, 2284. A supplementary act in 1913 (37 Stat. 1013) amended § 266 of the Judicial Code providing for the stay of federal proceedings to enjoin State legislation if a suit has been brought in a State court to enforce the legislation until the State court has determined the issues. Section 266 was amended again in 1925 when the provisions concerning interlocutory injunctions were extended to include permanent injunctions. Act of February 13, 1925, 43 Stat. 938.

[675]Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210 (1908); Gilchrist v. Interborough Rapid Transit Co., 279 U.S. 159 (1929); Grubb v. Public Utilities Commission, 281 U.S. 470 (1930); Beal v. Missouri Pacific R. Co., 312 U.S. 45 (1941).

[676]Phillips v. United States, 312 U.S. 246, 249 (1941), citing and quoting Ex parte Collins, 277 U.S. 565, 577 (1928).

[677]312 U.S. 246, 251, citing Moore v. Fidelity & Deposit Co., 272 U.S. 317 (1926); Smith v. Wilson, 273 U.S. 388 (1927); Oklahoma Gas Co. v. Packing Co., 292 U.S. 386 (1934); Ex parte Williams, 277 U.S. 267 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928); Rorick v. Commissioners, 307 U.S. 208 (1939); Ex parte Bransford, 310 U.S. 354 (1940).

[678]Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 354 (1930).

[679]21 How. 506 (1859).

[680]Ibid. 514-516, 523-524, 526.

[681]United States v. Tarble (Tarble’s Case), 13 Wall. 397, 407-408 (1872).

[682]1 Stat. 81, § 14.

[683]4 Stat. 634, § 7 (1833).

[684]5 Stat. 539 (1942).

[685]14 Stat. 385 (1867).

[686]Rev. Stat., § 753; 28 U.S.C.A. § 2242.

[687]100 U.S. 257 (1880).

[688]In re Neagle, 135 U.S. 1 (1890).

[689]In re Loney, 134 U.S. 372 (1890).

[690]Boske v. Comingore, 177 U.S. 459 (1900).

[691]Ohio v. Thomas, 173 U.S. 276 (1899).

[692]209 U.S. 205 (1908).

[693]117 U.S. 241 (1886).

[694]Ibid. 251.

[695]Harkrader v. Wadley, 172 U.S. 148 (1898); Whitten v. Tomlinson, 160 U.S. 231 (1895).

[696]Frank v. Mangum, 237 U.S. 309 (1915); Tinsley v. Anderson, 171 U.S. 101 (1898).

[697]Maryland v. Soper, 270 U.S. 9, 36, 44 (1926). In addition to the cases cited above see Ex parte Fonda, 117 U.S. 516 (1886); Duncan v. McCall, 139 U.S. 449 (1891); New York v. Eno, 155. U.S. 89 (1894); Baker v. Grice, 169 U.S. 284 (1898); Matter of Moran, 203 U.S. 96 (1906); Mooney v. Holohan, 294 U.S. 103 (1935); Ex parte Hawk, 321 U.S. 114 (1944). Compare, however, Wade v. Mayo, 334 U.S. 672 (1948), where it was held that failure of the petitioner to appeal to the Supreme Court from a conviction sustained by the Florida Supreme Court did not bar relief by habeas corpus because of denial of counsel. In Ex parte Hawk, 321 U.S. 114 (1944), the rule pertaining to the exhaustion of remedies was applied so as to include a certiorari petition in the Supreme Court. In adopting a new United States Code in 1948 (62 Stat. 967) Congress added a new section to existing habeas corpus provisions which stipulated that no application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court shall be granted until the applicant has exhausted the remedies available in the courts of the States and that an applicant shall not be deemed to have exhausted State remedies if he has the right under State law to raise, by any available procedure, the question presented, 28 U.S.C.A. § 2254. This section codified Ex parte Hawk.

[698]334 U.S. 672 (1948).

[699]258 U.S. 254 (1922).

[700]Ibid. 259.

[701]Houston v. Moore, 5 Wheat. 1, 27-28 (1820).

[702]Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine and Spirits Act, 1 Stat. 376 (1794).

[703]1 Stat. 302 (1793).

[704]1 Stat. 414 (1795).

[705]1 Stat. 577.

[706]1 Stat. 727 (1799).

[707]2 Stat. 453 (1808); 2 Stat. 473 (1808); 2 Stat. 499 (1808); 2 Stat. 506 (1809); 2 Stat. 528 (1809); 2 Stat. 550 (1809); 2 Stat. 605 (1810); 2 Stat. 707 (1812); 3 Stat. 88 (1813).

[708]3 Stat. 244. For the trial of federal offenses in State courts see Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545 (1925).

[709]Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545, 577-581 (1925).

[710]Justice Story dissenting in Houston v. Moore, 5 Wheat. 1, 69 (1820); Justice McLean dissenting in United States v. Bailey, 9 Pet. 238, 259 (1835).

[711]16 Pet. 539, 615 (1842).

[712]Robertson v. Baldwin, 165 U.S. 275 (1897); Dallemagne v. Moisan, 197 U.S. 169 (1905). See also Teal v. Felton, 12 How. 284 (1852); Claflin v. Houseman, 93 U.S. 130 (1876). This last case proceeds on the express assumption that the State and National Governments are part of a single nation and implicity repudiates the idea of separate sovereignties, as set out in Prigg v. Pennsylvania, 16 Pet. 539 (1842).

[713]Mitchell Wendell, Relations between the Federal and State Courts (New York, 1949), 278.

[714]35 Stat. 65 (1908).

[715]Hoxie v. New York, N.H. & H.R. Co., 82 Conn. 352 (1909).

[716]223 U.S. 1, 59 (1912).

[717]Brown v. Western Ry. Co. of Alabama, 338 U.S. 294 (1949). See Justice Frankfurter’s dissent in this case for a summary of rulings to the contrary.

[718]330 U.S. 386 (1947).

[719]56 Stat. 23, 33-34, 205 (c).

[720]330 U.S. 386, 389.

[721]Ibid. 390. Justice Black refers to Prigg v. Pennsylvania, 16 Pet. 539, 615 (1842), and other cases as broadly questioning the power and duty of State courts to enforce federal criminal law. The cases primarily relied upon in the opinion are Claflin v. Houseman, 93 U.S. 130 (1876); Mondou v. New York, N.H. & H.R. Co. (Second Employers’ Liability Cases), 223 U.S. 1 (1912).

[722]Cf. Doyle v. Continental Ins. Co., 94 U.S. 535 (1877), (which upheld a similar Wisconsin statute), and Security Mut. L. Ins. Co. v. Prewitt, 202 U.S. 246 (1906); with Home Ins. Co. v. Morse, 20 Wall. 445 (1874); Barron v. Burnside, 121 U.S. 186 (1887); Southern P. Co. v. Denton, 146 U.S. 202 (1892); Gerling v. Baltimore & O.R. Co., 151 U.S. 673, 684 (1894); Barrow S.S. Co. v. Kane, 170 U.S. 100, 111 (1898); Herndon v. Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910); Harrison v. St. Louis & S.F.R. Co., 232 U.S. 318 (1914); Donald v. Philadelphia & R. Coal & I. Co., 241 U.S. 329 (1916).

[723]257 U.S. 529, 532 (1922).

[724]25 Edward III, Stat. 5, Ch. 2. See also Story’s Commentaries On The Constitution Of The United States, Vol. 2, 529-540, (5th ed.).

[725]4 Cr. 75 (1807).

[726]Ibid. 75, 126.

[727]Ibid. 126.

[728]Ibid. 127.

[729]United States v. Burr, 4 Cr. 470, Appx. (1807).

[730]There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States v. Vigol, 28 Fed. Cas. No. 16,621 (1795); United States v. Mitchell, 26 Fed. Cas. No. 15,788 (1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. No. 15,299 (1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 20 Wall. 459 (1875). See also Hanauer v. Doane, 12 Wall. 342 (1871); Thorington v. Smith, 8 Wall. 1 (1869); Young v. United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution.

[731]325 U.S. 1 (1945).

[732]89 Law. Ed. 1443-1444 (Argument of Counsel).

[733]325 U.S. 35.

[734]Ibid. 34-35. Earlier Justice Jackson had declared that this phase of treason consists of two elements: “adherence to the enemy; and rendering him aid and comfort.” A citizen, it was said, may take actions “which do aid and comfort the enemy—* * *—but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason.” Ibid. 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3).

[735]330 U.S. 631 (1947).

[736]Ibid. 635-636.

[737]330 U.S. 631, 645-646. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: “But the act of providing shelter was of the type that might naturally arise out of petitioner’s relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be.” Ibid. 649. The following summary, taken from the Appendix to the Government’s brief in Cramer v. United States, 325 U.S. 1 (1945), and incorporated as note 38 in the Court’s opinion (pp. 25-26), contains all the cases in which, prior to Kawakita v. United States, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: Whiskey Rebellion cases: United States v. Vigol, 28 Fed. Cas. No. 16,621 (1795), United States v. Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Fries’s Case, 9 Fed. Cas. Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); United States v. Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) (conspiracy to levy war held not an overt act of levying war). United States v. Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, 26 Fed. Cas No. 15,374 (1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States v. Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States v. Hanway, 26 Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of Fugitive Slave Law no levying of war). United States v. Greiner, 26 Fed. Cas. No. 15,262 (1861) (participation as members of state militia company in seizure of a federal fort is a levying of war). United States v. Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane, 12 Wall. 342 (1871); Carlisle v. United States, 16 Wall. 147 (1873); Sprott v. United States, 20 Wall. 459, 371[Transcriber’s Note: “371” is incorrect—case occupies 20 Wall. 459-474 (1874)] (1874); United States v. Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States v. Cathcart and United States v. Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth’s Case (unreported: see Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in United States History (1934 ed.) 485-487; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 2 Phil. 703 (1903), United States v. De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States v. Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States v. Fricke, 259 F. 673 (1919) (acts “indifferent” on their face held sufficient overt acts). United States v. Robinson, 259 F. 685 (1919) (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 (1920) (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan v. United States, 133 F. (2d) 87 (1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 137 F. (2d) 888 (1943).

[738]343 U.S. 717.

[739]Ibid. 732. For citations on the subject of dual nationality, see ibid. 723 note 2. Three dissenters asserted that Kawakita’s conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. “As a matter of law, he expatriated himself as well as that can be done.” Ibid. 746.

[740]Ex parte Bollman, 4 Cr. 75 (1807).

[741]United States v. Burr, 4 Cr. 470 (1807).

[742]Cramer v. United States, 325 U.S. 1 (1945).

[743]Haupt v. United States, 330 U.S. 631 (1947).

[744]Ex parte Bollman, 4 Cr. 75, 126, 127 (1807).

[745]12 Stat. 589. This act incidentally did not designate rebellion as treason.

[746]Miller v. United States, 11 Wall. 268, 305 (1871).

[747]Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).

[748]Lord de la Warre’s Case, 11 Coke, 1 a. A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned, but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Illinois Central R. Co. v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 213 (1876); Armstrong’s Foundry v. United States, 6 Wall. 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle v. United States, 16 Wall. 147, 154-155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 (1863) which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States v. Wiltberger, 5 Wheat. 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason “is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary.”

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