Earlier

cited.

a State and citizens of another State', and ' between a State or the Citizens thereof, and foreign States, citizens or subjects'. The Supreme Court, by the clause immediately following, is given original jurisdiction only in 'cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party '1 They quoted and analysed the section of the Constitution concerning judicial power, and as the result of this examination and analysis they felt justified in saying that:

It is to be noticed that wherever a State is mentioned in the clause declaring the extent of the judicial power, the opposite party to the controversy is also mentioned and in no instance does it include the United States. In other words, the parties with whom the separate States can have legal controversies cognizable in the courts of the United States by reason of the parties thereto, are distinctly named and all others are necessarily excluded. Keeping in view the Eleventh Amendment, it has been justly said, so far as the present question is concerned, that the controversies over which the United States courts are given jurisdiction are 'those to which the United States might be a party; those to which a State of the Union might be a party, where the opposite party was another State of the Union'. 2 Curtis Hist. Const. 444.2

Continuing this phase of the subject, and still further analysing the language of the Constitution, in the hope that the 'spirit' might get the better of the 'letter', counsel called attention in the next step of their argument to the arrangement by subjects and parties, as in the preceding stage they had dwelt upon the parties. Thus, they said:

The clause establishing the judicial power is arranged by subjects and parties, carefully and accurately grouped, and the cases in which the United States shall be a party are distinctly separated from those in which a State may be. The cases of which this court has original jurisdiction are defined alone by reference to the parties and only two classes of cases are included, namely those affecting ambassadors, other public ministers and consuls, and those in which a State, in cases over which the judicial power is by the preceding clause extended, shall be a party. In all the other cases mentioned the jurisdiction is declared to be appellate.3

From these premises they deduce the conclusion that the judicial power does not extend to controversies between the United States and an individual State, nor is the Supreme Court given original jurisdiction in such cases'.4

Counsel conclude this portion of their argument with a brief quotation from opinions the dissenting opinion of Mr. Justice Campbell in the case of Florida v. Georgia (17 Howard, 521), and a much longer and a much more persuasive passage from the dissenting opinion of Mr. Justice Curtis in the same case. The statement from Mr. Justice Campbell, in which counsel for Texas found comfort, is very brief, very positive, and to the point. Thus, he said:

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.5

1 United States v. State of Texas (143 U.S. 621, 626).

2 Ibid. (143 U.S. 621, 626). a Ibid. (143 U.S. 621, 626).

Ibid. (143 U.S. 621, 627).

The passage from the dissenting opinion of Mr. Justice Curtis is much longer and argumentative. It is interesting in itself, and is quotable as the deliberate opinion of a learned judge and a keen lawyer, whose opinions are always entitled to respect. It was the dissenting opinion, it was not the opinion of the court, but as counsel for Texas make it their own by quoting it and rest their case upon it, it is fair alike to counsel and to reader, and in the interest of the case itself, to quote the following passage which counsel themselves quoted :

In distributing this jurisdiction, the Constitution has provided that, in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all other cases before mentioned, the Supreme Court shall have appellate jurisdiction. One of the other cases before mentioned, is a controversy to which the United States is a party.

'I am not aware that any doubt has ever been entertained by any one, that controversies to which the United States are a party, come under the appellate jurisdiction of this court in this distribution of jurisdiction by the constitution. Such is the clear meaning of the words of the constitution. So it was construed by the congress, in the judiciary act of 1789, which, by the 11th section, conferred on the circuit courts jurisdiction of cases in which the United States are plaintiffs, and so it has been administered to this day.

'We have, then, two rules given by the constitution. The one, that if a State be a party, this court shall have original jurisdiction; the other, that if the United States be a party, this court shall have only appellate jurisdiction. And we are as clearly prohibited from taking original jurisdiction of a controversy to which the United States is a party, as we are commanded to take it if a State be a party. Yet, when the United States shall have been admitted on this record to become a party to this controversy, both a State and the United States will be parties to the same controversy. And if each of these clauses of the constitution is to have its literal effect, the one would require and the other would prohibit us from taking jurisdiction. 'It is not to be admitted that there is any real conflict between these clauses of the Constitution, and our plain duty is so to construe them that each may have its just and full effect. This is attended with no real difficulty. When, after enumerating the several distinct classes of cases and controversies to which the judicial power of the United States shall extend, the constitution proceeds to distribute that power between the supreme and inferior courts, it must be understood as referring, throughout, to the classes of cases before enumerated, as distinct from each other. And when it says: In all cases in which a State shall be a party, the supreme court shall have original jurisdiction," it means, in all the cases before enumerated in which a State shall be a party. Indeed, it says so, in express terms, when it speaks of the other cases where appellate jurisdiction is given.

So that this original jurisdiction, which depends solely on the character of the parties, is confined to the cases in which are those enumerated parties, and those only. 'It is true, this course of reasoning leads necessarily to the conclusion that the United States cannot be a party to a judicial controversy with a State in any court. 'But this practical result is far from weakening my confidence in the correctness of the reasoning by which it has been arrived at. The constitution of the United States substituted a government acting on individuals, in place of a confederation which legislated for the States in their collective and sovereign capacities. The continued existence of the States, under a republican form of government, is made essential to the existence of the national government. And the fourth section of the 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

Decision of the Court affirming

jurisdiction.

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.' 1

The argument of counsel is not so full on the other points set forth in the demurrer, and indeed it does not seem to be necessary to consider them, because the great point upon which this phase of the case turns was whether the Supreme Court could take jurisdiction of a suit by the United States against one of them, and if this contention was sustained the case fell. If it were not sustained counsel for Texas could not reasonably expect the court to refuse to entertain and to decide the case if it assumed jurisdiction merely because the remedy might be at law, any more than counsel could hope that this court would consider the question political if it was otherwise inclined to entertain jurisdiction in view of the repeated decisions of the court in suits between States determining title to realty upon bill in equity, and the rejection of the contention, wherever made, that the dispute between States concerning boundary retained its political character upon submission to the court.

It was the good fortune of Mr. Justice Harlan to deliver the opinion of the court in both phases of the case of the United States v. Texas, and because of this fact, as well as for reasons previously alleged, only that portion of his opinion dealing with the question of jurisdiction will be considered in connexion with the first, relegating his views on the boundary dispute as such to the second of the cases. After an analysis of the pleadings and of the treaties upon which the parties based their claims, Mr. Justice Harlan enters upon the question of jurisdiction with a statement which may well serve as a model for the society of nations, when a court of the nations shall be established, should the society appear before this court as a plaintiff in pursuance of the convention creating the court, defining the nature and extent of its judicial power, and authorizing the society so to appear.

'The relief asked', Mr. Justice Harlan says, ' is a decree determining the true line between the United States and the State of Texas, and whether the land constituting what is called Greer County' is within the boundary and jurisdiction of the United States or of the State of Texas. The Government prays that its rights, as asserted in the bill, be established, and that it have such other relief as the nature of the case may require'. The learned Justice, without adverting in this place to the contention that Texas did not give its special consent to be sued-because this consent is found by the court to have been given generally in the clause of the Constitution-takes up the contention of counsel for the State of Texas that 'the ascertainment of the boundary between a Territory of the United States and one of the States of the Union is political in its nature and character, and not susceptible of judicial determination'. Mr. Justice Harlan examines the cases cited by counsel (Foster v. Neilson, 2 Peters, 253; Cherokee Nation v. Georgia, 5 Peters, 1; United dents ex- States v. Arredondo, 6 Peters, 691; and Garcia v. Lee, 12 Peters, 511), holding that, as between nations, the determination of a boundary is a political question, and

Prece

amined.

shows that, in the American conception, boundary disputes between the colonies and between the states were judicial questions, confirming indirectly the statement of Mr. Justice Baldwin and the holding of the court in Rhode Island v. Massachusetts (12 Peters, 657), that questions of a political character between nations lose that character and become judicial upon an agreement to submit them to a court. Thus:

These authorities do not control the present case. They relate to questions of boundary between independent nations, and have no application to a question of that character arising between the General Government and one of the States composing the Union, or between two States of the Union. By the Articles of Confederation, Congress was made the last resort on appeal in all disputes and differences' then subsisting or which thereafter might arise between two or more States concerning boundary, jurisdiction or any other cause whatever'; the authority so conferred to be exercised by a special tribunal to be organized in the mode prescribed in those Articles, and its judgment to be final and conclusive. Art. 9. At the time of the adoption of the Constitution there existed, as this court said in Rhode Island v. Massachusetts, 12 Pet. 657, 723, 724, controversies between eleven States, in respect to boundaries, which had continued from the first settlement of the colonies. The necessity for the creation of some tribunal for the settlement of these and like controversies that might arise, under the new government to be formed, must, therefore, have been perceived by the framers of the Constitution, and, consequently, among the controversies to which the judicial power of the United States was extended by the Constitution, we find those between two or more States. And that a controversy between two or more States, in respect to boundary, is one to which, under the Constitution, such judicial power extends, is no longer an open question in this court. The cases of Rhode Island v. Massachusetts, 12 Pet. 657 New Jersey v. New York, 5 Pet. 284, 290; Missouri v. Iowa, 7 How. 660; Florida v. Georgia, 17 How. 478; Alabama v. Georgia, 23 How. 505; Virginia v. West Virginia, 11 Wall. 39, 55; Missouri v. Kentucky, 11 Wall. 395; Indiana v. Kentucky, 136 U.S. 479; and Nebraska v. Iowa, ante, [143 U.S.] 359, were all original suits, in this court, for the judicial determination of disputed boundary lines between States. In New Jersey v. New York, 5 Pet. 284, 290, Chief Justice Marshall said: 'It has been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a State, under the authority conferred by the Constitution and existing acts of Congress.' And in Virginia v. West Virginia, it was said by Mr. Justice Miller to be the established doctrine of this court that it has jurisdiction of questions of boundary between two States of this Union, and that this jurisdiction is not defeated, because in deciding that question it becomes necessary to examine into and construe compacts or agreements between those States, or because the decree which the court may render, affects the territorial limits of the political jurisdiction and sovereignty of the States which are parties to the proceeding'. So, in Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 287, 288: By the Constitution, therefore, this court has original jurisdiction of suits brought by a State against citizens of another State, as well as of controversies between two States. . . . As to "controversies between two or more States ". The most numerous class of which this court has entertained jurisdiction is that of controversies between two States as to the boundaries of their territory, such as were determined before the Revolution by the King in Council, and under the Articles of Confederation (while there was no national judiciary) by committees of commissioners appointed by Congress.'1

But the rejection of this contention of counsel for the State of Texas was purely negative and preliminary, clearing the way, as it were, of the brush standing in the United States v. State of Texas (143 U.S. 621, 639-40).

outside

jurisdiction

are

ment,

way of the court; for, although the question was not political, and therefore justiciable, it might nevertheless turn out that the court would not accept jurisdiction of it if the United States, as such, did not possess the right to sue a State in the Supreme Court of the States. This question, standing in the way of the court, had to be removed or overcome if the case was to be decided. Therefore the learned Justice, speaking on behalf of the majority of the court, addressed himself to this phase of the subject, stating fairly the contention of the United States, on the one hand, and of the State of Texas, on the other, and suggesting the reason why jurisdiction should exist under the circumstances:

The only The important question, therefore, is, whether this court can, under the Conmethods stitution, take cognizance of an original suit brought by the United States against a State to determine the boundary between one of the Territories and such State. Texas insists that no such jurisdiction has been conferred upon this court, and that the only mode in which the present dispute can be peaceably settled is by agreement, (1) agree- in some form, between the United States and that State. Of course, if no such agreement can be reached-and it seems that one is not probable—and if neither party will surrender its claim of authority and jurisdiction over the disputed territory, the result, according to the defendant's theory of the Constitution, must be that the United States, in order to effect a settlement of this vexed question of boundary, (2) suit in must bring its suit in one of the courts of Texas-that State consenting that its a Texan courts may be open for the assertion of claims against it by the United States-or that, in the end, there must be a trial of physical strength between the government of the Union and Texas. The first alternative is unwarranted both by the letter and spirit of the Constitution. Mr. Justice Story has well said: 'It scarcely seems possible to raise a reasonable doubt as to the propriety of giving to the national courts jurisdiction of cases in which the United States are a party. 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. Unless this power were given to the United States, the enforcement of all their rights, powers, contracts and privileges in their sovereign capacity would be at the mercy of the States. They must be enforced, if at all, in the state tribunals.' Story Const. § 1674. The second alternative, above mentioned, has no place in our constitutional system, and cannot be contemplated by any patriot except with feelings of deep concern.1

court,

(3) war.

Leaving out, then, consideration of the alternative of an agreement between the United States and Texas, on the one hand, and a suit in the courts of Texas, in which that State consented to be sued by the United States, on the other, the learned Justice addressed himself to the particular objection insisted upon with great earnestness, that the judicial power under the Constitution did not extend to a suit against one of the States by the United States. By way of introduction he calls attention to the fact that the jurisdiction in question had already been exercised in the case of United States v. North Carolina (136 U.S. 211), with which the reader is already familiar, and states in behalf of the court that, although the question of jurisdiction was not raised by counsel, it was nevertheless considered by the members of the court. This, however, could not be determinative of the case, because the wrongful exercise of jurisdiction does not create a right of jurisdiction, and it is the law of the land that agreement of the parties litigant cannot enlarge the scope and the power of a court of limited jurisdiction, and appearance of the parties in the suit in pursuance of an illegal agreement does not confer jurisdiction.