Question Court. Baldwin on this point will be recalled, and does not need to be again set forth, and its The next point, and indeed one which may be considered in a way as preceding of bring the question of jurisdiction, is the method of getting the defendant State before the ing the defendant court; and yet this phase of the subject is subordinate to that of jurisdiction, State to because, if a State be not a party, the Court cannot take jurisdiction, it cannot even consider the question, much less the procedure by which the State has appeared. But waiving questions of priority, as every step in this procedure is of importance, it is evident, from the very first case tried in the court (New York v. Connecticut, 4 Dallas, 1-6), that the suit must be between States not merely in form, but that the State shall be interested in the case, that it appear in behalf of its interest and not in behalf of private persons maintaining that the interests of the State are involved. This part of the subject is more connected with jurisdiction than with procedure, but it leads up to the question, how a State, a party in fact, may be notified of the suit? Service In the first place, the plaintiff State appears by counsel before the Supreme Court and asks leave to file its declaration or its bill against the defendant State. Permission is a matter of course, unless the court should be of opinion that the suit is improperly brought, when it will require, of its own motion, that the question of leave be set for argument, and that the State be heard on the propriety of granting leave. The procedure of the Court, after many years' experience, was briefly stated and confirmed by Chief Justice Chase, in granting leave to file the bill in the case of Georgia v. Grant (6 Wallace, 241), decided in 1867. But how is the appearance of the defendant State to be secured? In the suits by individuals against States before the passage of the 11th amendment, withdrawing jurisdiction in such cases, it had been determined, as Chief Justice Marshall states at upon the length in the second phase of New Jersey v. New York (5 Peters, 284), that the subpoena Governor and At- should issue out of the Supreme Court at the request of the plaintiff State; and that torney- it should be served upon the Governor and the Attorney-General of the State, General. commanding it to appear within sixty days after service. But suppose that the State thus summoned should not appear? Is the plaintiff to be deprived of his day in the court, or is the State to be compelled by force of arms to appear and to litigate the question? The great Chief Justice declared, in the same case, that the practice In case of of the Court had been fixed in such cases by permitting the plaintiff to proceed with its case in the absence of the defendant State duly notified and duly summonednot to take judgement by default, as would have been proper in suits between individuals, but inconsistent with the dignity of states, which proverbially move parte. slowly, and which have a right to be heard when they appear. non-appearance plaintiff may pro ceed ex But again, supposing that the plaintiff insisted upon the presence of the defendant? This was a bridge which the Court was unwilling to cross unless forced to it, as Chief Justice Marshall had said in the phase of New Jersey v. New York, already referred to in this connexion, that the Court would content itself with deciding the immediate issue and would not attempt to forecast its future action, wisely leaving this to depend upon the facts and circumstances as they presented themselves. This phase of the question did, however, present itself in Massachusetts v. Rhode Island (12 Peters, 755), the fourth phase of the case when Daniel Webster moved, on behalf of Massachusetts, for leave to withdraw its appearance, after the Supreme Court had sustained jurisdiction in the previous phase. Mr. Justice Thompson held that this question had not previously arisen, but the motion of counsel for Massachusetts raised it squarely, and that it was therefore the duty of the Court to decide it. Cautiously he examined the steps already taken in the matter of procedure, and, from a consideration of the precedents and the nature of the parties litigant, he declared without hesitation, speaking for the Court of which he was a member : that in suits against a state, if the state shall refuse or neglect to appear, upon due No coerservice of process, no coercive measure will be taken to compel appearance; but the cive procomplainant, or plaintiff, will be allowed to proceed ex parte. cess against a It is to be observed, in this connexion, that the Court used the expressions State. complainant, or plaintiff', in order that its meaning might not be misunderstood and that the question before it, in all its phases, might be settled by its decision; for the term 'complainant' is technically correct in a suit in equity, whereas the term 'plaintiff' is technically correct in a suit at law. Therefore, in one case as well as in the other, the appearance of the State is voluntary, it cannot be forced, and because of this fact Mr. Justice Thompson, still speaking for the Court, said: If, upon this view of the case, the counsel for the State of Massachusetts shall elect to withdraw the appearance heretofore entered, leave will accordingly be given; and the state of Rhode Island may proceed ex parte. It was a small case, but the usefulness if not the fate of the Supreme Court was bound up in it. A sovereign state may appear at the bar of the Court and summon the State before it. This sovereign state may, in the exercise of its sovereign discretion, appear or refuse to appear. It is not to be coerced. But whether it appear or whether it absent itself, it cannot block the course of justice. The plaintiff State cannot take judgement ex confesso, that is to say, the failure to appear is not to be construed as an admission of the plaintiff's case. But the plaintiff may, as if the defendant were present, unfold its case before the court, with the certainty that, if its contentions be supported by proof and a principle of law be found applicable, English equity procedure a decree or a judgement will be entered in accordance with the evidence and the law. Finally, the question of procedure in the technical sense of the word is to be considered, for with the decision of the fourteenth case the procedure of the court was determined and fixed. In this matter court and counsel were on new ground, and they stepped cautiously lest they might stumble. It was contended in argument and it was admitted by the Court through its great Chief Justice that there was no statute regulating the procedure to be followed. It was evident from the Constitution that its framers contemplated law and equity, as in the very clause granting jurisdiction the judicial power of the United States was extended to all suits in law and equity, and it would seem to follow that the procedure applicable in law, as well as the procedure applicable in equity, should be observed; and law and equity, as used in the Constitution, were the law and equity of the mother country, with which colonial and revolutionary statesmen were familiar. But the law and equity of the mother country, and the procedure in each case, applied to individuals not to States, for states had not been litigants before our revolutionary ancestors discovered that States were but a generic name for the people composing them. But as it has been stated, as it will be stated in the future-for it cannot be said too often-States have a temper of their own, and what might suit the individual, who has no volition in the matter, might fail to suit the state, which determines the matter, and whose amour propre is as sensitive as the sum total of the citizens composing it. Counsel and Court alike recognized this, and, while the Court admitted the principles of chancery practice as the procedure to be followed-as was stated elaborately by Mr. Justice Baldwin in the third phase of Rhode Island v. Massachusetts (12 Peters, 657) and as restated by Chief Justice Taney and Mr. Justice McLean in the subsequent phases of this historic case-the system of equity procedure was nevertheless to be modified in such a way as to permit the plaintiff to present its entire followed case and to allow the defendant to make its complete defence, without the advantages with of technicalities, on the one hand, or of the embarrassment of such technicalities, modifica. on the other. The rules of equity pleading were to guide counsel, they were not to tions. master the States, and the interests of justice were to be promoted even at the expense of the pleadings. In pursuance of these views, and in accordance with the procedure developed, if not devised, in the trial of the cases, the first final judgement of the Supreme Court of the United States in a controversy of a State against a State was had in the fourteenth case of which it had assumed jurisdiction. There was but one question left undecided, although it had been touched upon by counsel and by court, which, if decided, would have outlined in its entirety the procedure to be followed in controversies of a justiciable nature between the States. That question was: if a State The pos- should refuse to comply with a judgement rendered by the Supreme Court in a consibility of troversy of a justiciable nature between two or more States, is the judgement to be resistance to a executed by physical force against it? In other words, if coercion is not to be emjudgeployed against the State to compel its appearance, is coercion to be employed against the State to compel the execution of the judgement, when the appearance of the State is voluntary and may be withdrawn at any time? ment. have produced war, as controversies susceptible of judicial settlement between nations undoubtedly have, was agreed upon in the conference of States held at Philadelphia in the summer of 1787, and the first case in which final judgement or decree was entered in the supreme court of the states, vested with the jurisdiction of suits between states, was that of Rhode Island v. Massachusetts (4 Howard, 591), decided in 1846, a long period in the life of man but which, in the life of nations, is as a day. But the court had been resorted to and its intervention sought thirteen times. The Court itself was new, the method of settling suits between States claiming to be sovereign, and which, in the exercise of their undoubted sovereignty, had agreed to be sued in the court of their creation, was untried, and there were no precedents at hand to guide court and counsel. There was a belief in the conference that the government of the state, as the creature of the people, should not be above the law of its creation, and the experience of the colonies before the king in council showed them that the disputes of colonies at least could be, because they were, settled by some body upon the principles of justice and of reason-upon the principles of reason when the principle of law was not enough, and upon the principles of justice when the dispute was of a justiciable nature. The states were the colonies of yesterday, and the leaders of public opinion found themselves statesmen. It was natural, therefore, that they should adopt methods of settlement with which they were familiar. The storm and stress of the Revolution showed it to be expedient. The 9th of the Articles of Confederation is based upon the procedure before the king in council; the method of choosing the commissioners was borrowed from Granville's act of 1770 for trying election cases, with which the statesmen had been familiar as colonists. The framers of the Constitution hit upon the happy expedient of making that permanent which was temporary, and regular which was intermittent, by vesting the Court of their creation with the jurisdiction of the 9th of the Articles of Confederation in cases of a justiciable nature between States of the Union and foreign States, between the Government of the United States and the States, and perhaps for the 11th amendment casts doubt upon it-between citizens of other states and the States themselves. It is no wonder that court and counsel were impressed, indeed almost awed, by the spectacle of a State standing, as it were, before the bar of the Supreme Court, asking justice at the hands of the court against another State, which likewise appeared and stood before the bar of the Court as a defendant. And it is no wonder, indeed it is their great glory, that counsel and court, admitting that justice should regulate the conduct of States as well as of the people composing the States and directing their conduct, should nevertheless recognize that States have a temper of their own, and that the procedure applicable to individuals should be modified and moulded so as to do justice, not to prevent justice, between the states. Impressively, slowly and cautiously, counsel and court debated each question involved in a case as it presented itself, and neither counsel nor court sought to go beyond the immediate point-to push boldly, as it were, upon an uncharted sea-but were content to decide the immediate question, in the belief, justified by the event, that, as the result of experience, the procedure proper in such cases would be fashioned by their hands and assume definite form and shape. V. A boundary dispute. Suit filed with the consent JURISDICTION AFFIRMED; INTERVENTION OF UNITED STATES IN 16. State of Missouri v. State of Iowa. (7 Howard, 660) 1849. On December 10, 1847, the State of Missouri filed its bill against the State of Iowa. Both these States were unknown to the framers of the Constitution, as they were carved out of a territory not possessed by the United States when the Constitution was framed in conference at Philadelphia in the fateful summer of 1787 and ratified in first instance by eleven, and a little later by the two recalcitrants, of which litigious Rhode Island was one, making the full complement of the original thirteen States. The judicial power of the United States not only extends to controversies between the original States, but also to territories not then in contemplation and out of which States, enjoying full membership in this Union of States, have been formed. The western boundary of the United States was from Canada on the north to the Gulf of Mexico on the south, and the boundary to the west itself was supposed to be the middle of the Mississippi running, as it was then supposed, from Canada to the Gulf. Spain then admittedly possessed the territory to the west of the Mississippi and claimed in addition a strip near the mouth of that majestic river extending eastward to and including the Floridas. The young Republic felt the need of the Mississippi as a high way and demanded navigation as a right which Spain was hardly willing to grant as a concession. The situation changed when, in 1801, Spain retroceded to France the vast tract west of the Mississippi; and it again changed when war broke out in 1803 between France and Great Britain and the possibility stared the great Napoleon in the face of relinquishing to Great Britain this vast tract because of British supremacy upon the high seas. President Jefferson was negotiating for the purchase of a town; Napoleon offered an empire, and the President, straining at a gnat, swallowed a camel. For the paltry sum of fifteen million five hundred thousand dollars, Louisiana became the domain of the United States. The State of Missouri formed a part of this territory, and with boundaries established by the Congress-for the Congress admits States and determines the conditions of their admission to the Union-it was admitted as a state upon an equality with the other states in the year 1820. From the territory to the north the territory of Iowa was later formed, with boundaries fixed by Congress, and admitted as a state on an equality with the other states in 1846. The question was one of boundaries, Missouri claiming a strip of territory which Iowa likewise claimed; for, as pointed out by Mr. Justice Baldwin in classic terms, the States had renounced diplomacy as a means of producing agreement, and a resort to war to compel an agreement, inserting as a wedge the Supreme Court between the contending parties in order that justice might be done without unworthy intrigue, on the one hand, and open force, on the other. Because of these things the State of Missouri resorted to the Supreme Court with the consent of the State of Iowa', to quote the language of the report, in order |