by such person as the States may select; or, if they choose, they may agree on one person and jointly appoint him. The court refused, however, itself to appoint one or more persons to make the surveys and examinations, as officers of the court, believing that the case would better be brought before them by leaving each state to act for itself.1 From the opinion of Mr. Chief Justice Taney, who from his expression of views in the series of controversies between Rhode Island and Massachusetts might have been expected to dissent, but who apparently had had a change of judgement if not of heart, four Justices, Messrs. McLean, Daniel, Curtis, and Campbell, dissented. Dissent- Two, Mr. Justice Curtis, with whom Mr. Justice McLean concurred, and Mr. Justice ing Campbell, on his own behalf, delivered dissenting opinions. opinions. The opinion of Mr. Justice Curtis is based upon the fact that the intervention of the Attorney-General makes the United States a party to the controversy, and that to allow the United States to intervene without making it a party plaintiff, and without permitting it to obtain a decree or judgement, if such should be necessary to the preservation of its rights, was to deprive it of the necessary, natural, and proper consequence of its intervention in the suit between the States. Admitting that, in suits between States, technicalities were not allowed to stand in the way of justice, Mr. Justice Curtis nevertheless insisted that, according to the common law and equity adopted by the Constitution of the United States, the intervention of the United States made it a party, with all the rights and privileges thereof, saying on this point : With submission to a majority of my brethren, I confess it seems to me that to deprive a party of some rights which, under all systems of law known to us, are deemed essential, while other rights are allowed to him which can be conceded only to a party to the controversy, proves the embarrassment which was felt in carrying out the idea of making him a party, but does not overcome the difficulty or even avoid it. It appears to me to declare, in effect, justice requires that you should be admitted as a party on this record; but, in order to make some distinction between yourself and other parties, you shall not enjoy all the rights of a party; and the particular rights which you are not to enjoy are, the power of excepting to the pleadings and proofs of the other parties. This is not satisfactory to my mind. Whether I consider only the substantial relations of the United States to the controversy, or the analogous provisions of positive or customary law in our own and other countries, I cannot avoid the conclusion that if they are admitted upon this record to assert their rights-to show what they are, and how they are involved in this controversy; to maintain them, in the regular course of judicature, by allegation, proof, and argument, against the state of Georgia; to have the process of the court to enable them to do so; to profit by the decree if favorable, to lose by it if adverse-they are a party to this controversy, within the meaning of the constitution of the United States. And this raises the question, which in my opinion is a very grave one, whether the constitution permits the United States to become a party to a controversy between two states, in this court? 2 After stating that the Supreme Court is one of limited powers and that the United States is not enumerated among the parties entitled to invoke the original jurisdiction of the court, Mr. Justice Curtis then goes on to say that this line of 1 State of Florida v. State of Georgia (17 Howard, 478, 524). reasoning excludes the United States from being a party to a controversy with a State in the Supreme Court: States viduals. But this practical result is far from weakening my confidence in the correctness The of the reasoning by which it has been arrived at. The constitution of the United United States substituted a government acting on individuals, in place of a confederation is a gowhich legislated for the States in their collective and sovereign capacities. The vernment continued existence of the States, under a republican form of government, is made acting on essential to the existence of the national government. And the fourth section of indithe fourth article of the constitution pledges the power of the nation to guarantee to every State a republican form of government; to protect each against invasion, and, on application of its legislature or executive, against domestic violence. This conservative duty of the whole towards each of its parts forms no exception to the general proposition, that the constitution confers on the United States powers to govern the people, and not the states. There is, therefore, nothing in the general plan of the constitution, or in the nature and objects of the powers it confers, or in the relations between the general and State governments, to lead us to expect to find there a grant of power over judicial controversies between the government of the Union and the several States. On the contrary, the agency of courts to compel the States to obey the laws of the Union, or to concede to the United States its rights or claims, would naturally be deemed both superfluous and impolitic; superfluous, because the States can act only through individuals, who are directly responsible, both civilly and criminally, to the laws of the United States, which are supreme, and in the courts of the United States, which have jurisdiction to enforce all laws of the United States; and impolitic, because calculated to provoke irritation and resistance, and to excite jealousy and alarm. It must be remembered, also, that a State can be sued only by its own consent. This consent has been given in the constitution; but only in cases having such parties as are there described. The particular character of the parties to the controversy, into which a state has consented to enter, constitutes not only an essential element in that consent, but it is the sole description of what is agreed to. The State of Georgia has consented to be sued by one or more States, or by a foreign state, and by no other person or body politic. The State of Georgia has consented to stand joined as a defendant with one or more States, or with a foreign state, and with citizens or subjects of a State other than the one bringing the suit, but with no other person or body politic. Certainly, there is no power existing in this government to enlarge that consent so as to embrace in it any thing to which it does not, by its terms, extend.1 It is to be observed, in this connexion, that while the argument of Mr. Justice Curtis is very strong, that it has not met with the favour of the Court of which he was one, and the keenest and ablest of members. As will appear subsequently, it is in conflict with United States v. North Carolina (136 U.S. 211), decided in 1890, where the controversy was not raised, and in United States v. Texas (143 U.S. 621), decided in 1892, in which the question of jurisdiction was raised, argued and debated—in which, however, Mr. Chief Justice Fuller delivered a dissenting opinion, in which Mr. Justice Lamar concurred. The gladsome light of jurisprudence, to use an expression of my Lord Coke, is not merely a steady, it is a great and organic flame. Mr. Justice Campbell dissented for himself. After stating that it was inherent in sovereignty not to be sued without its consent, and reinforcing this elementary principle by quotations from the Federalist, No. 81, and from the language of James 1 State of Florida v. State of Georgia (17 Howard, 478, 506-7). Madison, Patrick Henry, and John Marshall in the Virginia Convention to the same effect, and after relating the circumstances which led to the repudiation by the IIth amendment of the extension of the judicial power to suits between citizens of one State and another State of the Union, Mr. Justice Campbell maintained, in clear and unequivocal terms, that the intervention of the United States in the controversy between Florida and Georgia would impute a consent of the State of Georgia to be sued in a case in which it had not consented, inasmuch as a grant in derogation of right is to be strictly construed and not to be extended beyond its express terms. The opinion of Mr. Justice Curtis may be said to have been to the same effect, but it was, in comparison, a denial with submission to the better judgement of his brethren; that of Mr. Justice Campbell was a denial of consent, requiring an amendment of the Constitution to overcome his judgement; for he said: The nature of the jurisdiction in regard to the States having been considered, the inquiry can now be made, can the United States be a party to a suit between two or more States? The constitution does not mention such a case. There were before the federal convention propositions to extend the judicial powers to questions 'which involve the national peace and harmony'; 'to controversies between the United States and an individual State'; and in the modified form, 'to examine into and decide upon the claims of the United States and an individual State to territory'. None were incorporated into the constitution, and the last was peremptorily rejected. The jurisdiction of this court over cases to which the United States and the States are respectively parties, is materially different-the one original, the other appellate only. There was no encouragement, nor serious countenance, to the proposition to vest this court with jurisdiction of such cases. This court is organized and its members appointed by one of the parties. Their influence extends with the jurisdiction of this court, their means of reputation with its powers, their habitual connection with the federal legislation naturally inspires a sentiment in favor of the federal authority. These operative causes of bias were known; and apprehensive as the States were of consolidation and the overbearing influence of the central government, we can well understand why only the modified proposal as to jurisdiction was pressed to a vote. I repeat, that the enumeration of the parties in this article of the constitution did not enlarge the liabilities of the States to suits, but it only provided tribunals where suits might be brought, to which they were already subject, or might desire to commence. Nor does the clause authorizing suits between two or more States afford any contradiction to this conclusion. The articles of confederation, by which they were then combined, allowed congress, as the occasion might arise, to appoint special tribunals to which all disputes and differences now subsisting, or that might hereafter arise, between two or more States, concerning boundary, jurisdiction, or any other cause whatever', should be submitted. Similar provisions for special and occasional tribunals, in matters of jurisdiction and boundary, formed a part of the plan of the constitution till near the close of the convention, when they were stricken out, and the general jurisdiction over those as well as other controversies delegated to this court. My conclusion, after an examination of the clause, is, that it is only in controversies between the States that one of their number can be impleaded in this court without its explicit consent; and that this jurisdiction is special, as to the controversy and the parties, embracing none except those between the States of the Union; that the court has no original jurisdiction of the United States, and none of a controversy between them and an individual State; and consequently, that they have no title to appear as a party to the record, nor in any undefined and uncertain relation to it.1 From this judgement, with its theory of express powers not subject to interpretation, the reader will not be surprised to learn that Mr. Justice Campbell resigned from the Supreme Court when Louisiana, whereof he was a citizen, attempted to secede from the more perfect Union. 20. State of Alabama v. State of Georgia. (23 Howard, 505) 1859. The case of Alabama v. Georgia (23 Howard, 505), like so many of its predecessors, A boundary diswas a boundary dispute-also, it may be said in passing, that the overwhelming pute majority of arbitrations between nations are of the same character. The suit was begun in 1855 by the filing of the bill of Alabama against the very sovereign state of Georgia, which had twice refused to comply with decisions of the Supreme Court against it. The case depends upon the interpretation to be given to a written agreement, in this case the compact of 1802 between the United States and Georgia, and the intent of the parties, as shown by the practice of nations, when a river is made a boundary between them. about the title to The State of Alabama contended in its bill that, by a just and proper construction of the compact and deed of cession from Georgia of the territory from which Alabama was formed, the boundary line began at a point, to quote the language of the report, 'where the 31st degree of north latitude crosses the Chattahoochee river, and on the part of a western bank of said river, on that part or portion of the said bank that reaches to river bed. or touches the water at ordinary or common low water, and runs up said river and along the western bank thereof, and on said portion of said bank that touches the water at its ordinary or common height, until said line reaches the point on said river from whence it leaves the same in a straight direction to Nickajack-in other words, that said line, so far as it runs on the bank of the Chattahoochee river, runs upon the western bank at the usual or common low-water mark '.1 In 1858 the State of Georgia answered, reserving the advantage to be derived from demurrer or plea to the bill if it should be later minded to do one or the other. It admitted the facts of the case as stated by Alabama as well as the conclusion that the eastern boundary thereof was the western boundary of Georgia 'wherever that might be, as the two States are contiguous. The dispute was precisely as to the location of this line, and the strip of territory claimed by Alabama was likewise claimed by Georgia, to determine the ownership of which, and therefore the boundary between the States, this suit was brought. Having quoted the report summarizing Alabama's claims, as set forth in its bill, the language of the report is quoted setting forth Georgia's contention in its answer. Thus : So far as this line runs along the western bank of the Chattahoochee river, Georgia denies that it runs along the usual or common low-water mark, but, on the contrary, she contends that it runs along the western bank at high-water mark, using high-water mark in the sense of the highest line of the river's bed; or, in other words, the highest line of that bed, where the passage of water is sufficiently frequent to be marked by a difference in soil and vegetable growth.2 1 State of Alabama v. State of Georgia (23 Howard, 505, 506). The case turns on the Such was the dispute between Alabama and Georgia, and such was the contention of each. From an international point of view the statement of the case is interesting, and the argument of counsel exceptionally so, for the evidence was all documentary. The arguments, written and oral, are unfortunately not preserved by the reporter in the report of the case, who contents himself with the statement that they' partook rather of the character of a diplomatic negotiation than a forensic dispute, and the reporter declines to abbreviate them in a law book '. The opinion, delivered by Mr. Justice Wayne, was the unanimous opinion of his brethren, and is the only opinion in the case. It is brief and to the point, and as to the point he says: Alabama claims that its boundary commences on the west side of the Chattahoochee river at a point where it enters the State of Florida; from thence up the river along the low-water mark, on the western side thereof, to the point on Miller's Bend, next above the place where Uchee creek empties into such river; thence in a straight line to Nickajack, on Tennessee river.1 The contention of Georgia, although it has already been quoted, is nevertheless stated in the language of the learned judge, in order that the case as the court conceived it may be clearly and fully presented; and the issue between the two States drawn from these conflicting claims will likewise be given in the language of the court, to the end that the entire case may be given at the very beginning of the discussion and as the court itself understood it. Thus, as to the contention of Georgia : Georgia denies that the line intended by the cession of her western territory to the United States runs along the usual low-water mark of the perennial stream of the Chattahoochee river, but that the State of Georgia's boundary line is a line up the river, on and along its western bank, and that the ownership and jurisdiction of Georgia in the soil of the river extends over to the water-line of the fast western bank, which, with the eastern bank of the river, make the bed of the river.2 And finally, the issue : The difference between the two States must be decided by the construction which this court shall give to the following words of the contract of cession: West meaning of a line beginning on the western bank of the Chattahoochee river, where the same crosses the boundary between the United States and Spain, running up the said river and along the western bank thereof.3 of the word In what may be considered as the conclusion of the introductory portion of Mr. Justice Wayne's opinion, he calls attention to and lays stress upon the fact that the agreement of 1802 between the United States and Georgia, which the court was called upon to interpret and to apply, was not merely the location of a line between the United States, on the one hand, and the sovereign State of Georgia, on the other; but that it was a mutual cession of the territory on either side of the line, determining title and quieting possession, inasmuch as the United States ceded all its right, title, and interest in and to the territory lying east of the line, and Georgia ceded to the United States all its right, title, and interest in and to the west thereof. On approaching the case the learned Justice made a statement of considerable importance, as it laid down a principle which the Court intended to follow, that the pleadings in the case setting forth the contentions of the parties were in themselves 1 State of Alabama v. State of Georgia (23 Howard, 505, 510). |