JUDICIAL SETTLEMENT OF CONTROVERSIES I. RISE OF JUDICIAL PROCEDURE BETWEEN STATES OF THE AMERICAN UNION. of the tion to be achieved by divi sion of the sove reign THE preamble to the Constitution declares that the people of the United States- Objects meaning, as Chief Justice Marshall said in the case of McCulloch v. Maryland (4 ConstituWheaton, 316, 403), decided in 1819, the people of the States acting within the States-ordained and established it for the United States of America in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common Defense, promote the general Welfare, and secure the blessings of Liberty to ourselves and our Posterity'. To accomplish this purpose the framers power. of this now venerable instrument endowed the more perfect Union with a government composed of legislative and executive branches and a judiciary, apportioning the sovereign powers of a general nature to the government of the Union to be exerted in behalf of all the States instead of any one State or group of States, and leaving with the several States the powers which they already possessed as free, sovereign, and independent States, to be exercised by them in matters solely or primarily affecting the States as such. tive The modicum of legislative power which the framers granted to the Union of Legislathe States was vested in a Congress of the United States, and they enumerated this power of power under eighteen heads in the first article of the Constitution; intending, how- Congress ever, that, in the exercise of these powers, the Congress should pass any and all laws necessary and proper to carry them into effect, and all other powers vested by the Constitution in the Government of the United States. The executive power, which is necessarily coextensive with the legislative, as Execuit is to execute the will of the legislative department as far as it is exercised in tive power of accordance with the terms of the Constitution, is vested in a President, to be chosen the Presi dent. by electors appointed by the States composing the Union, and to serve for a period of four years, who, before assuming office, swears or affirms faithfully to execute the Office of President of the United States', and, to the best of his ability, to 'preserve, protect, and defend the Constitution of the United States', subject to impeachment for failure to perform the duties appertaining to his office. the Su Court. The judicial power of the more perfect Union-for the government of the Con- Judicia federation, superseded by that of the Constitution, had no adequate judicial machinery power of -was vested by the framers in one Supreme Court, and in such inferiour Courts preme as the Congress may from time to time establish'. To make the judges independent of either branch of the government, they were, upon appointment by the President, to be confirmed by the Senate, 'to hold their Offices during good Behaviour', and to receive at stated Times', compensation for their services, which was not to be 'diminished during their Continuance in Office'. The 'Articles of Con federation', 1778-81. Provi sions for the de inter State disputes. The Declaration of Independence, in severing the bonds connecting the colonies with the mother country, already spoke of them as the United States, recognizing that they were as independent nations under international law. It was foreseen that something more was needed than a mere declaration of union if the States were to act in union and if the fraternal feeling born of the moment was to endure. Therefore, before the Declaration of Independence was framed, a committee had been appointed to consider a form of government, whose labours eventually resulted in the Articles of Confederation, ratified by ten of the States on July 9, 1778, and by the last of the thirteen on March 1, 1781, by virtue of which the United States of America became a Confederation, under an instrument of government known as the Articles of Confederation. The 9th of the Articles vested the Congress with the power of establishing rules for deciding in all cases, what captures on land or water shall be legal, and in what manner prizes taken by land or naval forces in the service of the United States shall be divided or appropriated. . . of appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of capture'. Anticipating that disputes between the States would arise in the future as in the past, both between the Colonies and the States themselves, the 9th Article cision of made of the Congress the court of appeal in disputes between them, and provided the following method of appointing a Court for their disposition; upon petition of a State to Congress and notice by that body to the other State, the agents of the States in controversy appeared before the Congress, who by its direction appointed commissioners by joint consent to constitute the Court; failing agreement, the Congress named three persons from each State, and from the 39 thus named, each agent beginning with the defendant, or the Secretary of the Congress in case of absence or unwillingness of one or other to act, struck a name until thirteen remained; from this number not less than seven nor more than nine names were drawn by lot, and of these any five would form the Court. The judges so appointed took an oath to decide without fear or favour, and the judgement, sentence, and proceedings in the case were to be transmitted to Congress and lodged among the acts of Congress for the security of the parties concerned'. The same procedure was to be followed in controversies over private right to the soil claimed under different grants of two or more States. Without dwelling upon the details of proceedings under the 9th Article, particular attention is invited to what may be called the preamble, providing that the United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction, or any other cause whatever'. There is no doubt or uncertainty in this language. States living together and under a common form of government were likely to have disputes, and, as they renounced diplomacy and the resort to war, some other method had to be provided if the disputes were to be settled and the Confederation to be preserved. The question was not academic, because the charters of the colonies overlapped; and in the dispute between Connecticut and Pennsylvania concerning a strip of territory now belonging to Pennsylvania blood had flowed.1 For this controversy see State of Pennsylvania v. State of Connecticut (131 U.S. Appendix, liv), 1781. But jurisdiction in the matter of boundaries was only one of the differences which the statesmen of that day foresaw, and against which they intended and, in an imperfect way, did provide against. All disputes and differences then existing concerning boundary were to be got out of the way, under the procedure of the 9th Article; but all disputes and differences concerning jurisdiction were likewise to be settled, and, lest disputes might arise different from those now existing, concerning boundary or jurisdiction, the article authorized the Congress to settle by this method 'any other cause whatever'. In other words, all causes of dispute which could properly be considered by the Congress and referred to the decision of the Commission were to be decided by the appeal to judicial reason instead of the appeal to physical force. It is only necessary to say, in this connexion, that the 9th Article was a prophecy of better things, rather than a realization; for only one case was decided and only one commission was appointed under this procedure; and when the government under the Constitution succeeded the government under the Articles there were controversies between eleven States concerning their boundaries, to mention only differences of this nature, unsettled between the States. The remedy, however, was at hand, as is or can be the case with men of good will. The will to justice, although less known than the will to power, is but a different manifestation of the will that does all things. On May 29, 1787, Mr. Edmund Randolph, on behalf of Virginia, The 'Virpresented what is generally called the Virginian plan for a more perfect union to the ginian plan' of Conference of the States met in Philadelphia. The 9th resolution curiously dealt 1787 prowith the question of a judiciary, as if it had in mind the 9th of the Articles of Con- poses a federation, and by virtue of the newer article there was to be formed a national judiciary. judiciary, consisting of supreme and inferior tribunals, with jurisdiction to hear and determine, among other things, 'questions which may involve internal peace or harmony.'1 On June 19 the Committee of the Whole, to which body the various propositions and drafts had been referred, reported to the Conference for its consideration a draft as altered, amended, and agreed to in committee. The 13th resolution dealing with this subject is thus worded: That the jurisdiction of the Natl. Judiciary shall extend to all cases which respect the collection of the Natl. revenue, impeachments of any Natl. Officers, and questions which involve the national peace & harmony.2 On August 6 a committee of five members, known as the Committee of Detail, to which the various propositions as originally made and amended were referred, reported to the Conference a draft of the Constitution, the 9th article of which read: Sect. I. The Senate of the United States shall have power to make treaties, and to appoint Ambassadors, and Judges of the Supreme Court. Sect. 2. In all disputes and controversies now subsisting, or that may hereafter subsist between two or more States, respecting jurisdiction or territory, the Senate shall possess the following powers... [similar to, although not identical with, the 9th of the Articles of Confederation]. Sect. 3. All controversies concerning lands claimed under different grants of 2 Ibid., p. 163. 1 Gaillard Hunt, The Writings of James Madison, vol. iii, p. 20. national Draft proposals of August, 1787. Proposal to create perma two or more States, whose jurisdictions, as they respect such lands, shall have been decided or adjusted subsequent to such grants, or any of them, shall, on application to the Senate, be finally determined, as near as may be, in the same manner as is before prescribed for deciding controversies between different States.1 So much for the temporary tribunal to be created by the Senate as representing the States. The 11th article of the draft showed that a court of the States was not merely in contemplation but that its creation and jurisdiction were provided for ; and it was natural that the permanent court in the minds of the delegates would win upon the temporary tribunal, when they had the whole subject before them; and that, in other words, shortening the processes of history, the permanent court would swallow up the temporary tribunal. The 11th article, in so far as it can be considered material to the present purpose, is as follows: Sect. 1. The Judicial Power of the United States shall be vested in one Supreme Court, and in such inferior Courts as shall, when necessary, from time to time, be constituted by the Legislature of the United States... Sect. 3. The Jurisdiction of the Supreme Court shall extend to all cases arising under laws passed by the Legislature of the United States; to all cases affecting Ambassadors, other Public Ministers and Consuls; to the trial of impeachments of officers of the United States; to all cases of Admiralty and maritime jurisdiction; to controversies between two or more States (except such as shall regard Territory or Jurisdiction), between a State and Citizens of another State, between Citizens of different States, and between a State or the Citizens thereof and foreign States, citizens or subjects.2 It will be observed that the two drafts, taken together, cover the entire field, that a distinction was made between disputes and controversies respecting jurisdicnent and tion or territory and other suits of what would be considered a justiciable kind tempobetween the States. Sovereignty was uppermost in their minds, and a temporary rary courts tribunal was to be created for suits involving it. Therefore, ordinary cases, that is, rent kinds cases considered by lawyer and judge to be justiciable, whether they involved States of cases: or not, were to be tried and determined by the ordinary permanent tribunal; whereas the extraordinary cases, only gradually being brought within the domain of law, were treated as a different category and according to a different method of procedure. The important point is that they were to be treated. for diffe Final report. The drafts were submitted to debate and discussion, and what is apparent to us to-day was fortunately apparent to them. They saw that two bodies were not necessary, and that they could invest the permanent court, which was a Court of the States, with the jurisdiction of the temporary tribunal, which would likewise be a Court of the States. The two institutions were amalgamated, and the permanent court invested with the remainder of the 9th article of the project, thus endowing the Supreme Court with the jurisdiction formerly possessed by the Congress under the 9th of the Articles of Confederation, either in identical language or in language to be traced to that source. On September 12, 1787, the Committee on Style reported the Constitution, in so far as the presented matter is concerned, in the terms with which we are familiar, extending the judicial power to Controversies to which the United States shall be a Party;-to Controversies between two or more States'. 1 Gaillard Hunt, The Writings of James Madison, vol. iv, pp. 101-3. 2 Ibid., pp. 104–5. |