As would be naturally expected under the circumstances, Mr. Justice Harlan quotes the clauses of the Constitution relating to the judicial power of the United States, which need not be quoted again in this connexion, and having their exact wording before the reader, as well as in the mind of the court, he thus proceeds to comment upon them and to draw from them their full import and meaning:

conferred

It is apparent upon the face of these clauses that in one class of cases the juris- Jurisdiction of the courts of the Union depends on the character of the cause, whoever diction is may be the parties', and, on the other, on the character of the parties, whatever by the may be the subject of controversy. Cohens v. Virginia, 6 Wheat. 264, 378, 393. text of The present suit falls in each class, for it is, plainly, one arising under the Constitution, the Conlaws and treaties of the United States, and, also, one in which the United States is stitution. a party. It is, therefore, one to which, by the express words of the Constitution, the judicial power of the United States extends.1

After calling attention to the judiciary act of 1789 to the effect that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party', the learned Justice explained the reason for this restriction, saying:

Such exclusive jurisdiction was given to this court, because it best comported with the dignity of a State, that a case in which it was a party should be determined in the highest, rather than in a subordinate judicial tribunal of the nation. Why then may not this court take original cognizance of the present suit involving a question of boundary between a Territory of the United States and a State ? 2 Continuing his argument, the learned Justice says:

The words, in the Constitution, 'in all cases. . . in which a State shall be a party, the Supreme Court shall have original jurisdiction,' necessarily refer to all cases mentioned in the preceding clause in which a State may be made, of right, a party defendant, or in which a State may, of right, be a party plantiff.3

Admitting that the judicial power of the United States, since the 11th amendment, does not extend to suits of individuals against States, as was laid down by the Supreme Court in the case of Hans v. Louisiana (134 U.S. 1), the learned Justice thus refutes the entire contention of counsel for Texas, which the court found to be unjustified:

It is, however, said that the words last quoted refer only to suits in which a State is a party, and in which, also, the opposite party is another State of the Union or a foreign State. This cannot be correct, for it must be conceded that a State can bring an original suit in this court against a citizen of another State. Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 287. Besides, unless a State is exempt altogether from suit by the United States, we do not perceive upon what sound rule of construction suits brought by the United States in this court-especially if they be suits the correct decision of which depends upon the Constitution, laws or treaties of the United States-are to be excluded from its original jurisdiction as defined in the Constitution. That instrument extends the judicial power of the United States 'to all cases', in law and equity, arising under the Constitution, laws and treaties of the United States, and to controversies in which the United States shall be a party, and confers upon this court original jurisdiction 'in all cases' in which a State shall be party', that is, in all cases mentioned in the preceding clause in which a State may, of right, be made a party defendant, as well as in all cases in which a State may, of right, institute a suit in a court of the United States.1

1 United States v. State of Texas (143 U.S. 621, 643).

Ibid. (143 U.S. 621, 643). 3 Ibid. (143 U.S. 621, 643 4).

• Ibid. (143 U.S. 621, 644).

Having thus defined the categories of suits to which the judicial power of the United States extends, and having found that it extends to suits or controversies in which a State may of right be a party plaintiff or a party defendant, the learned Justice maintains, on behalf of the court, that this case is included within the category, and in measured and impressive language explains the reasons why this is so, and why it must be so, if judicial settlement is to prevail :

The present case is of the former class. We cannot assume that the framers of the Constitution, while extending the judicial power of the United States to controversies between two or more States of the Union, and between a State of the Union and foreign States, intended to exempt a State altogether from suit by the General Government. They could not have overlooked the possibility that controversies, capable of judicial solution, might arise between the United States and some of the States, and that the permanence of the Union might be endangered if to some tribunal was not entrusted the power to determine them according to the recognized principles of law. And to what tribunal could a trust so momentous be more appropriately committed than to that which the people of the United States, in order to form a more perfect Union, establish justice and insure domestic tranquillity, have constituted with authority to speak for all the people and all the States, upon questions before it to which the judicial power of the nation extends? It would be difficult to suggest any reason why this court should have jurisdiction to determine questions of boundary between two or more States, but not jurisdiction of controversies of like character between the United States and a State.1

Mr. Justice Harlan was aware that disputes as to boundaries between nations were political, and he had so stated in an earlier portion of his opinion, which has been quoted in this narrative. He was likewise aware that, in the system of law from which that of the United States is derived, disputes between the colonies were judicial, and he was both familiar with the admirable statement of Mr. Justice Baldwin, that political disputes became judicial by submission to a court of justice, and the statement of Mr. Justice Bradley, to the effect that the statesmen sitting in conference at Philadelphia had, by the clause which they inserted in the Constitution, made controversies judicial which were not previously so. Indeed, in support of his views he quotes a passage, with which the reader is familiar, but which is very material to the matter in hand, and which, in any event, cannot be too often quoted:

Mr. Justice Bradley, speaking for the court in Hans v. Louisiana, 134 U.S. 1, 15, referred to what had been said by certain statesmen at the time the Constitution was under submission to the people, and said: The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State.... The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Lord Baltimore, 1 Ves. Sen. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times; and several cases of the same general character arose under Abolition the Articles of Confederation, and were brought before the tribunal provided for that of diplo- purpose in those articles. 131 U.S. App. 50. The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the States.' 2

macy

between States.

United States v. State of Texas (143 U.S. 621, 644-5).

Ibid. (143 U.S. 621, 645).

It would redound to the wisdom of the present generation if, following the example of the statesmen of the American Revolution, they submit disputes between nations to a court of the nations upon the breakdown of diplomacy, for the breakdown is, as we know from the experience of history, synonymous with the extinguishment of diplomacy. But to continue the views of the court, as found in the opinion of Mr. Justice Harlan. The case of Hans v. Louisiana, from which he quoted, proceeded, as he said upon the broad ground that "it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent And, as it seems to us, he very properly drew a distinction between suit by an individual, where consent had not been given, or, if given, was withdrawn by the 11th amendment, and suit by a State, generally as well as expressly given in the clause of the Constitution under consideration. Thus, he says:

sented to the

The question as to the suability of one government by another government rests upon wholly different grounds. Texas is not called to the bar of this court at the suit of an individual, but at the suit of the government established for the common and equal benefit of the people of all the States. The submission to judicial solution of controversies arising between these two governments, each sovereign, with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other,' McCulloch v. State of Maryland, 4 Wheat. 316, 400, 410, but both subject to the supreme law of the land, does no violence to the inherent nature of sovereignty. The States of the Union have agreed, in the Constitution, that the Texas judicial power of the United States shall extend to all cases arising under the Con- has constitution, laws and treaties of the United States, without regard to the character of the parties (excluding, of course, suits against a State by its own citizens or by juriscitizens of other States, or by citizens or subjects of foreign States,) and equally to diction. controversies to which the United States shall be a party, without regard to the subject of such controversies, and that this court may exercise original jurisdiction in all such cases, in which a State shall be a party,' without excluding those in which the United States may be the opposite party. The exercise, therefore, by this court, of such original jurisdiction in a suit brought by one State against another to determine the boundary line between them, or in a suit brought by the United States against a State to determine the boundary between a Territory of the United States and that State, so far from infringing, in either case, upon the sovereignty, is, with the consent of the State sued. Such consent was given by Texas when admitted into the Union upon an equal footing in all respects with the other States.1

With this statement of the case, the learned Justice announced the opinion of the majority of the court, that, so far as the question of jurisdiction was concerned, the State of Texas could not defeat the suit on the ground that one of the States could not be legally summoned to appear and to litigate a dispute in which the United States appeared as a plaintiff at the bar of the court.

of the form of

But finally, admitting the jurisdiction of the court, the form of action might Question stand in the way of the suit, inasmuch as a suitor with a remedy at law would be turned away from a court of equity. The reader would expect that this objection, action. of a technical nature, would not find favour with the court, where the strict form of procedure in suits between individuals is varied in controversies between states, in order to enable the plaintiff, on the one hand, to open his entire case to the inspection of the court, and the defendant, on the other, to disclose every defence he may possess, to the end that the dispute may be decided upon its merits and equal and 1 United States v. State of Texas (143 U.S. 621, 646).

Prece

amined.

exact justice done between the sovereign litigants. If authority were needed to sustain this view, almost every case of suits between States could be cited, but it is sufficient to recall to the reader's attention the admirable opinion of that great and otherwise technical judge, Mr. Chief Justice Taney, upon whom the mantle of Chief Justice Marshall not unworthily fell, in various phases of Rhode Island v. Massachusetts (14 Peters, 210; 15 Ibid., 233), and in Florida v. Georgia (17 Howard, 478).

But the very objection of counsel for Texas against a suit in equity instead of an action in law, in the matter of boundary between States, had been made and met by way of dictum in an early case, and expressly by a decree of the court in a later one, and for the convenience of the reader and that questions of this kind may be mentioned in passing without dwelling upon them in future cases, the language of Mr. Justice Harlan, expressing on this point the views of the unanimous court, is given:

It is contended that, even if this court has jurisdiction, the dispute as to boundary must be determined in an action at law, and that the act of Congress requiring the institution of this suit in equity is unconstitutional and void, as, in effect, declaring that legal rights shall be tried and determined as if they were equitable rights. This is not a new question in this court, It was suggested in argument, though not decided, in Fowler v. Lindsey, 3 Dall. 411, 413. Mr. Justice Washington, in that case, said: dents ex- ' I will not say that a State could sue at law for such an incorporeal right as that of sovereignty and jurisdiction; but even if a court of law would not afford a remedy, I can see no reason why a remedy should not be obtained in a court of equity. The State of New York might, I think, file a bill against the State of Connecticut, praying to be quieted as to the boundaries of the disputed territory; and this court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries.' But the question arose directly in Rhode Island v. Massachusetts, 12 Pet. 657, 734, which was a suit in equity in this court involving the boundary line between two States. The court said: No court acts differently in deciding on boundary between States, than on lines between separate tracts of land; if there is uncertainty where the line is, if there is a confusion of boundaries by the nature of interlocking grants, the obliteration of marks, the intermixing of possession under different proprietors, the effect of accident, fraud or time or other kindred causes, it is a case appropriate to equity. As issue at law is directed, a commission of boundary awarded; or, if the court are satisfied without either, they decree what and where the boundary of a farm, a manor, a province or a State is and shall be.'1

After quoting a portion of the opinion of Chief Justice Taney in the case of Massachusetts v. Rhode Island (14 Peters, 210, 256), referring to the cases of New Jersey v. New York (5 Peters, 284), Missouri v. Iowa (7 Howard, 660), Florida v. Georgia (17 Howard, 478), Alabama v. Georgia (23 Howard, 505), Virginia v. West Virginia (11 Wallace, 39), Missouri v. Kentucky (11 Wallace, 395), Indiana v. Kentucky (136 U.S. 479), and Nebraska v. Iowa (145 U.S. 519), which have been discussed in the course of this narrative, and all of which were suits in equity, involving the boundaries of States, Mr. Justice Harlan stated that it was not necessary for the court to examine the question anew. The rule applicable to a suit in which the State was plaintiff as well as defendant was, in the opinion of the majority of the court, applicable to a case in which a State was defendant and the United States plaintiff. Thus, he said:

Of course, if a suit in equity is appropriate for determining the boundary between two States, there can be no objection to the present suit as being in equity and not at law.2

1 United States v. State of Texas (143 U.S. 621, 647).

2 Ibid. (143 U.S. 621, 648).

With this announcement, Mr. Justice Harlan might have concluded his opinion, and assuredly Mr. Justice Baldwin, in that phase of Rhode Island v. Massachusetts (12 Peters, 657), in which the jurisdiction of the court was tested and sustained, would have sought to minimize the far-reaching nature of the decision by assimilating it to an ordinary partition of realty, although drawing with it, in the case of States, sovereignty to the line of boundary. The court was then feeling its way, as it were; but in the half century between the two cases the court had become aware of its power in the premises, and had grown in the confidence of the States, whose just rights were protected by its decrees. Therefore, Mr. Justice Harlan dwelt, and properly, upon the magnitude of the case, saying:

It is not a suit simply to determine the legal title to, and the ownership of, the lands constituting Greer County. It involves the larger question of governmental authority and jurisdiction over that territory. The United States, in effect, asks the specific execution of the terms of the treaty of 1819, to the end that the disorder and public mischiefs that will ensue from a continuance of the present condition of things may be prevented. The agreement, embodied in the treaty, to fix the lines with precision, and to place landmarks to designate the limits of the two contracting nations, could not well be enforced by an action at law. The bill and amended bill Demurrer make a case for the interposition of a court of equity.1

overruled.

opinions.

Mr. Chief Justice Fuller and Mr. Justice Lamar felt obliged to dissent from the Dissentopinion of the majority of the court. The opinion of Mr. Chief Justice Fuller, in ing which Mr. Justice Lamar concurred, can perhaps be considered as an expression of personal opinion rather than one which they felt likely the court could be brought to entertain. It is exceptionally brief and does not argue the question, as the reader will see from the text in its entirety :

This court has original jurisdiction of two classes of cases only, those affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party.

The judicial power extends to 'controversies between two or more States'; 'between a State and citizens of another State'; and 'between a State or the citizens thereof, and foreign States, citizens or subjects'. Our original jurisdiction, which depends solely upon the character of the parties, is confined to the cases enumerated, in which a State may be a party, and this is not one of them.

The judicial power also extends to controversies to which the United States shall be a party, but such controversies are not included in the grant of original jurisdiction. To the controversy here the United States is a party.

We are of opinion, therefore, that this case is not within the original jurisdiction of the court.2

The cases grouped in this section should be well weighed and pondered by the opponents of judicial settlement and by those who believe in peaceable settlement but who are not yet convinced that judicial settlement is possible between states, or, if possible, that it is necessarily limited to matters 'of small pith and moment'. We have a decision of the Supreme Court of the United States passing upon the knotty questions involved in the separation of one State from another, Virginia v. West Virginia (11 Wallace, 39), the determination of a boundary dispute of an international character, Nebraska v. Iowa (143 U.S. 359), Missouri v. Kentucky (11 Wallace, 395), Indiana v. Kentucky (136 U.S. 479), the complaint of a State against an obstruction 1 United States v. State of Texas (143 U.S. 621, 648) 2 Ibid. (143 U.S. 621, 648-9).

Com

ments on preceding group of cases.