The Constitution of the United States of America: Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 (part 5 of 8)

The Constitution of the United States of America: Analysis and Interpretation Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952 (part 5 of 8)

Since the original jurisdiction is derived directly from the Constitution, it follows logically that Congress can neither restrict it nor, as was held in the great case of Marbury v. Madison,[581] enlarge it. In holding void the 13th section of the Judiciary Act of 1789, which was interpreted as giving the Court power to issue a writ of mandamus in an original proceeding, Chief Justice Marshall declared that "a negative or exclusive sense" had to be given to the affirmative enunciation of the cases to which original jurisdiction extends.[582] While the rule that the Supreme Court is vested with original jurisdiction by the Constitution and that this jurisdiction cannot be extended or restricted deprives Congress of any power to define it, it allows a considerable latitude of interpretation to the Court itself. In some cases, as in Missouri v. Holland,[583] the Court has manifested a tendency toward a liberal construction of original jurisdiction; in others, as in Massachusetts v. Mellon,[584] it has placed a narrow construction upon the grant through the device of a restrictive interpretation of cases and controversies; and in still other cases, as in California v. Southern Pacific Co.,[585] it has stated that its original jurisdiction "is limited and manifestly to be sparingly exercised, and should not be expanded by construction."

CONCURRENT JURISDICTION OF THE LOWER FEDERAL COURTS

Although Congress can neither enlarge nor restrict the original jurisdiction of the Supreme Court, it may vest concurrent jurisdiction in the lower federal courts in cases over which the Supreme Court has original jurisdiction.[586] Thus among the grounds given for the decision in Wisconsin v. Pelican Insurance Co.,[587] that the Court had no original jurisdiction of an action by a State to enforce a judgment for a pecuniary penalty awarded by one of its own courts, was the provision of the 13th section of the Judiciary Act of 1789[588] that "the Supreme Court shall have exclusive jurisdiction of controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State and citizens of other States, or aliens, in which latter case it shall have original but not exclusive jurisdiction." Speaking of that act with particular reference to this section, Justice Gray declared that it "was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning."[589] In cases affecting consuls, moreover, the original jurisdiction of the Supreme Court is shared concurrently with State courts unless Congress by positive action makes such jurisdiction exclusive.[590]

The Appellate Jurisdiction of the Supreme Court

SUBJECT TO LIMITATION BY CONGRESS

Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to control by Congress in the exercise of the broadest discretion. Although the provisions of article III seem, superficially at least, to imply that its appellate jurisdiction would flow directly from the Constitution until Congress should by positive enactment make exceptions to it, rulings of the Court since 1796 establish the contrary rule. Consequently, before the Supreme Court can exercise appellate jurisdiction, an act of Congress must have bestowed it, and affirmative bestowals of jurisdiction are interpreted as exclusive in nature so as to constitute an exception to all other cases. This rule was first applied in Wiscart v. Dauchy[591] where the Court held that in the absence of a statute prescribing a rule for appellate proceedings, the Court lacked jurisdiction. It was further stated that if a rule were prescribed, the Court could not depart from it. Fourteen years later Chief Justice Marshall observed for the Court that its appellate jurisdiction is derived from the Constitution, but proceeded nevertheless to hold that an affirmative bestowal of appellate jurisdiction by Congress, which made no express exceptions to it, implied a denial of all others.[592]

The McCardle Case

The power of Congress to make exceptions to the court's appellate jurisdiction has thus become, in effect, a plenary power to bestow, withhold, and withdraw appellate jurisdiction, even to the point of its abolition. And this power extends to the withdrawal of appellate jurisdiction even in pending cases. In the notable case of Ex parte McCardle,[593] a Mississippi newspaper editor who was being held in custody by the military authorities acting under the authority of the Reconstruction Acts filed a petition for a writ of habeas corpus in the circuit court for Southern Mississippi. He alleged unlawful restraint and challenged the validity to the Reconstruction statutes. The writ was issued, but after a hearing the prisoner was remanded to the custody of the military authorities. McCardle then appealed to the Supreme Court which denied a motion to dismiss the appeal, heard arguments on the merits of the case, and took it under advisement. Before a conference could be held, Congress, fearful of a test of the Reconstruction Acts, enacted a statute withdrawing appellate jurisdiction from the Court in certain habeas corpus proceedings.[594] The Court then proceeded to dismiss the appeal for want of jurisdiction. Chief Justice Chase, speaking for the Court said: "Without jurisdiction the Court cannot proceed at all in any cause. Jurisdiction is the power to declare the law and when it ceases to exist, the only function remaining to the Court is that of announcing the fact and dismissing the cause."[595]

Although the McCardle Case goes to the ultimate in sustaining Congressional power over the court's appellate jurisdiction and although it was born of the stresses and tensions of the Reconstruction period, it has been frequently reaffirmed and approved.[596] The result is to vest an unrestrained discretion in Congress to curtail and even abolish the appellate jurisdiction of the Supreme Court, and to prescribe the manner and forms in which it may be exercised. This principle is well expressed in The "Francis Wright"[597] where the Court sustained the validity of an act of Congress which limited the court's review in admiralty cases to questions of law appearing on the record. A portion of the opinion is worthy of quotation: "Authority to limit the jurisdiction necessarily carries with it authority to limit the use of the jurisdiction. Not only may whole classes of cases be kept out of the jurisdiction altogether, but particular classes of questions may be subjected to reexamination and review, while others are not. To our minds it is no more unconstitutional to provide that issues of fact shall not be retried in any case, than that neither issues of law nor fact shall be retried in cases where the value of the matter in dispute is less than $5,000. The general power to regulate implies the power to regulate in all things. The whole of a civil appeal may be given, or a part. The constitutional requirements are all satisfied if one opportunity is had for the trial of all parts of a case. Everything beyond that is a matter of legislative discretion."[598]

The Power of Congress To Regulate the Jurisdiction of the Lower Federal Courts

MARTIN v. HUNTER'S LESSEE

The power of Congress to vest, withdraw, and regulate the jurisdiction of the lower federal courts is derived from the power to create tribunals under article I, the necessary and proper clause, and the clause in article III, vesting the judicial power in the Supreme Court and such inferior courts as "the Congress may from time to time ordain and establish." Balancing these provisions, however, are the phrases in article III to the effect that the judicial power "shall be vested" in courts and "shall extend" to nine classes of cases and controversies and the question of what is the force of the word "shall." In Martin v. Hunter's Lessee,[599] Justice Story declared obiter that it was imperative upon Congress to create inferior federal courts and vest in them all the jurisdiction they were capable of receiving. This dictum was criticized by Justice Johnson in his dissent, in which he contended that the word "shall" was used "in the future sense," and had "nothing imperative in it."[600] And for that matter in another portion of his opinion Justice Story expressly recognized that Congress may create inferior courts and "parcel out such jurisdiction among such courts, from time to time at their own pleasure";[601] and in his Commentaries he took a broad view of the power of Congress to regulate jurisdiction.[602]

PLENARY POWER OF CONGRESS OVER JURISDICTION

Neither legislative construction nor judicial interpretation has sustained Justice Story's position in Martin v. Hunter's Lessee. The Judiciary Act of 1789, which was a contemporaneous interpretation of the Constitution by the Congress, rests on the assumption of a broad discretion on the part of Congress to create courts and to grant jurisdiction to and withhold it from them. This act conferred original jurisdiction upon the district and circuit courts in certain cases, but by no means all they were capable of receiving. Thus suits at the common law to which the United States was a party were limited by the amount in controversy. Except for offenses against the United States, seizures and forfeitures made under the impost, navigation, or trade laws of the United States, and suits by aliens under International Law or treaties, that whole group of cases involving the Constitution, laws, and treaties of the United States was withheld from the jurisdiction of the district and circuit courts,[603] with the result that original jurisdiction in these cases was exercised by the State courts subject to appeal to the Supreme Court under section 25. Jurisdiction was vested in the district courts over admiralty and maritime matters and in the circuit courts over suits between citizens of different States where the amount exceeded $500, or suits to which an alien was a party.[604] The act of 1789 empowered the courts to issue writs, to require parties to produce testimony, to punish contempts, to make rules, and to grant stays of execution.[605] Finally, equity jurisdiction was limited to those cases where a "plain, adequate, and complete remedy" could not be had at law.[606]

This care for detail in conferring jurisdiction upon the inferior courts and vesting them with ancillary powers in order to render such jurisdiction effective is of the utmost significance in the later development of the law pertaining to Congressional regulation of jurisdiction, inasmuch as it demonstrates conclusively that a majority of the members of the first Congress regarded positive action on the part of Congress to be necessary before jurisdiction and judicial powers could be exercised by courts of its own creation. Ten years later this practical construction of article III was accepted by the Supreme Court in Turner v. Bank of North America.[607] The case involved an attempt to recover on a promissory note in a diversity case contrary to Sec. 11 of the act of 1789 which forbade diversity suits involving assignments unless the suit was brought before the assignment was made. Counsel for the bank argued that the circuit courts were not inferior courts and that the grant of judicial power by the Constitution was a direct grant of jurisdiction. This argument evoked questions from Chief Justice Ellsworth and the following statement from Justice Chase: "The notion has been frequently entertained, that the federal courts derive their power immediately from the Constitution; but the political truth is, that the judicial power (except in a few specified instances) belongs to Congress. If Congress has given the power to this Court, we possess it, not otherwise; and if Congress has not given the power to us, or to any other court, it still remains at the legislative disposal. Besides, Congress is not bound, and it would, perhaps, be inexpedient, to enlarge the jurisdiction of the federal courts, to every subject, in every form, which the Constitution might warrant."[608] The Court applied Sec. 11 of the Judiciary Act and ruled that the circuit court lacked jurisdiction.

Eight years later Chief Justice Marshall in distinguishing between common law and statutory courts declared that "courts which are created by written law, and whose jurisdiction is defined by written law, cannot transcend that jurisdiction."[609] This rule was reaffirmed in the famous case of United States v. Hudson and Goodwin[610] on the assumption that the power of Congress to create inferior courts necessarily implies "the power to limit the jurisdiction of those Courts to particular objects."[611] After pointing to the original jurisdiction which flows immediately from the Constitution, Justice Johnson asserted: "All other Courts created by the general Government possess no jurisdiction but what is given them by the power that creates them, and can be vested with none but what the power ceded to the general Government will authorize them to confer."[612] To the same affect is Rhode Island v. Massachusetts[613] where Justice Baldwin declared that "the distribution and appropriate exercise of the judicial power must therefore be made by laws passed by Congress and cannot be assumed by any other department * * *"

A more sweeping assertion of Congressional power over jurisdiction was made by the Supreme Court in Cary v. Curtis,[614] which bears more directly upon the issue than some of the earlier cases. Here counsel had argued that a statute which made final the decisions of the Secretary of the Treasury in tax disputes was unconstitutional in that it deprived the federal courts of the judicial power vested in them by the Constitution. In reply to this argument the Court speaking through Justice Daniel declared: "The judicial power of the United States * * * is (except in enumerated instances, applicable exclusively to this court) dependent for its distribution and organization, and for the modes of its exercise, entirely upon the action of Congress, who possess the sole power of creating the tribunals (inferior to the Supreme Court) * * * and of investing them with jurisdiction, either limited, concurrent, or exclusive, and of withholding jurisdiction from them in the exact degrees and character which to Congress may seem proper for the public good." Continuing, Justice Daniel said: "It follows then that courts created by statute, must look to the statute as the warrant for their authority; certainly they cannot go beyond the statute, and assert an authority with which they may not be invested by it, or which may clearly be denied to them."[615]

The principles of Cary v. Curtis were reiterated five years later in Sheldon v. Sill[616] where the validity of Sec. 11 of the Judiciary Act of 1789 was directly questioned. The assignee of a negotiable instrument filed a suit in a circuit court even though no diversity of citizenship existed as between the original parties to the mortgage. The circuit court entertained jurisdiction in spite of the prohibition against such suits in Sec. 11 and ordered a sale of the property in question. On appeal to the Supreme Court, counsel for the assignee contended that Sec. 11 was void because the right of a citizen of any State to sue citizens of another in the federal courts flowed directly from article III and Congress could not restrict that right. The Supreme Court unanimously rejected these contentions and held that since the Constitution had not established the inferior courts or distributed to them their respective powers, and since Congress had the authority to establish such courts, it could define their jurisdiction and withhold from any court of its own creation jurisdiction of any of the enumerated cases and controversies in article III.[617] Sheldon v. Sill has been cited, quoted, and reaffirmed many times.[618] Its effect and that of the cases following it is that as regards the jurisdiction of the lower federal courts two elements are necessary to confer jurisdiction: first, the Constitution must have given the courts the capacity to receive it, and second, an act of Congress must have conferred it. The manner in which the inferior federal courts acquire jurisdiction, its character, the mode of its exercise, and the objects of its operation are remitted without check or limitation to the wisdom of the legislature.[619]

JUDICIAL POWER UNDER THE EMERGENCY PRICE CONTROL ACT

The plenary power of Congress to withhold and restrict jurisdiction was given renewed vitality by the Emergency Price Control Act of 1942[620] and the cases arising therefrom. Fearful that the price control program might be effectively nullified by injunctions, Congress provided for a special court and special procedures for contesting the validity of price regulations. In Lockerty v. Phillips[621] the Supreme Court sustained the power of Congress to confine equity jurisdiction, to restrain enforcement of the act to the specially created Emergency Court of Appeals, with appeal to the Supreme Court. The Court went much farther than this in Yakus v. United States,[622] and held that the provision of the act conferring on the Emergency Court of Appeals and the Supreme Court exclusive jurisdiction to determine the validity of any regulation or order, and providing that no court should have jurisdiction or power to consider the validity of any regulation, precluded the plea of invalidity of such a regulation as a defense to its violation in a criminal proceeding in a district court. Although Justice Rutledge protested in his dissent that this provision of the act conferred jurisdiction on the district courts from which essential elements of the judicial power had been abstracted,[623] Chief Justice Stone declared for the majority that the provision presented no novel constitutional issue.

LEGISLATIVE CONTROL OVER WRITS

The authority of Congress to regulate the jurisdiction of the lower federal courts includes that of controlling the power of the courts to issue writs in cases where they have jurisdiction and to regulate other ancillary powers generally.[624] Among some of the more notable restrictions in this regard are the limitations on the power of courts to issue injunctions, particularly in the field of taxation and labor disputes. By the act of March 2, 1867,[625] Congress provided that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court." There have never been any constitutional doubts concerning this provision, which was strictly applied for many years[626] until 1916 when the Supreme Court began to make exceptions[627] which in the later cases[628] made the provision so inefficacious that by October, 1935, more than 1600 suits had been filed to restrain the collection of processing taxes under the Agricultural Adjustment Act.[629] None of these cases, however, raises any issue other than that of statutory interpretation, and since 1936 the Court has interpreted the exceptions to the statute somewhat more strictly.[630]

Injunctions in Labor Disputes; the Norris-LaGuardia Act

The Norris-LaGuardia Act of 1932[631] is significant for its restrictions on the powers of the federal courts to issue injunctions in labor disputes in the form of requirements for hearings followed by findings that unlawful acts are threatened and will be committed unless restrained, or if already committed will be continued; that substantial injury to the property of complainants will ensue; that as to the relief granted greater injury will be inflicted upon complainants by denying relief than will be inflicted on defendants by granting it; that the complainants have no adequate remedy at law; and, finally, that the public officials charged with the protection of complainants' property are either unable or unwilling to do so. This act has been scrupulously applied by the Supreme Court, which has implicitly sustained its constitutionality by construing its restrictions liberally[632] in every case except United States v. United Mine Workers,[633] where it was held that the statute did not apply to suits brought by the United States to enjoin a strike in the coal industry while the Government technically was operating the mines.

JUDICIAL POWER EQUATED WITH DUE PROCESS OF LAW

Although the cases point to a plenary power in Congress to withhold jurisdiction from the inferior courts and to withdraw it at any time after it has been conferred, even as applied to pending cases, there are a few cases in addition to Martin v. Hunter's Lessee[634] which slightly qualify the cumulative effect of this impressive array of precedents. As early as 1856, the Supreme Court in Murray v. Hoboken Land and Improvement Co.[635] distinguished between matters of private right which from their nature were the subject of a suit at the common law, equity, or admiralty and cannot be withdrawn from judicial cognizance and those matters of public right which, though susceptible of judicial determination, did not require it and which might or might not be brought within judicial cognizance. Seventy-seven years later the Court elaborated this distinction in Crowell v. Benson,[636] which involved the finality to be accorded administrative findings of jurisdictional facts in compensation cases. In holding that an employer was entitled to a trial de novo of the constitutional jurisdictional facts of the matter of the employer-employee relationship and of the occurrence of the injury in interstate commerce, Chief Justice Hughes, speaking for the majority fused the due process clause of Amendment V and article III, but emphasized that the issue ultimately was "rather a question of the appropriate maintenance of the Federal judicial power," and "whether the Congress may substitute for constitutional courts, in which the judicial power of the United States is vested, an administrative agency * * * for the final determination of the existence of the facts upon which the enforcement of the constitutional rights of the citizen depend." To do so, contended the Chief Justice, "would be to sap the judicial power as it exists under the Federal Constitution and to establish a government of a bureaucratic character alien to our system, wherever constitutional rights depend, as not infrequently they do depend, upon the facts, and finality as to facts becomes in effect finality in law."[637]

JUDICIAL VERSUS NONJUDICIAL FUNCTIONS

The power of Congress to confer jurisdiction on the lower federal courts is qualified by the rule that before Congress can vest jurisdiction in the inferior courts, they must have the capacity to receive it. The capacity of the lower judiciary to receive jurisdiction is defined in the enumeration of cases and controversies in article III. Consequently in vesting courts with jurisdiction, Congress cannot go beyond this enumeration.[638] It follows from the rule that constitutional courts can perform only judicial functions that Congress, in vesting courts with jurisdiction, cannot impose upon them nonjudicial duties such as administering pensions,[639] deciding issues subject to later executive or legislative action,[640] rendering advisory opinions, or opinions which are not final and conclusive upon the parties,[641] or taking jurisdiction of matters from which any essential element of the judicial power has been abstracted.[642] To be sure, Congress may clothe some matters of an administrative nature with the mantle of a case or controversy and thereby make it a matter of judicial cognizance, as it has done with naturalization proceedings,[643] the administration of certain laws relating to the expulsion of aliens,[644] the limited administration of funds received from the Government of Mexico to compensate American citizens for claims against that government,[645] and, of course, the traditional administration of bankrupt enterprises through the medium of a receiver.

Federal-State Court Relations

PROBLEMS RAISED BY CONCURRENCY

The American Federal System with its dual system of courts, exercising concurrent jurisdiction in a number of classes of cases, presents numerous possibilities of inter-court conflicts and interference. Subject to Congressional enactments to the contrary, the State courts have concurrent jurisdiction over all the classes of cases and controversies enumerated in article III except suits between States, those to which the United States is a party, those to which a foreign state is a party, and cases of admiralty and maritime jurisdiction. Even in admiralty cases the State courts, though unable to exercise any portion of admiralty or maritime jurisdiction by delegation or otherwise,[646] may have a concurrent jurisdiction when the same issues assume the form of a case at common law.[647] In addition to conflicts arising out of concurrent jurisdiction, relations between federal and State courts are exposed to other frictions, such as injunctions in one jurisdiction restraining judicial processes in another, the use of the writ of habeas corpus by a court of concurrent jurisdiction to release persons in custody of another, and the refusal by State courts to comply with orders of the Supreme Court. The relations between federal and State courts are governed in part by Constitutional Law with respect to State court interference with the federal courts and State court refusal to comply with the judgments of federal tribunals, by statutes as regards interference by federal courts with those of the States, and by self-imposed rules of comity applied for the avoidance of unseemly conflicts.

DISOBEDIENCE OF SUPREME COURT ORDERS BY STATE COURTS

The refusal of State courts to make returns on writs of errors issued by the Supreme Court has already been noted in connection with the disobedience of the Virginia courts in Martin v. Hunter's Lessee[648] and Cohens v. Virginia[649] and in that of the Wisconsin court in Ableman v. Booth.[650] More spectacular disobedience to federal authority arose out of the Cherokee Indian case involving actions of Georgia and its courts. In the first of these the Supreme Court had issued a writ of error to the Georgia Supreme Court to review the conviction of Corn Tassel for the murder of another Cherokee Indian. The writ was served, but before a hearing could be held Corn Tassel was executed on the day originally set for punishment contrary to the federal law that a writ of error superseded sentence until the appeal was decided. This action ensued as a result of the legislature's approval of the governor's policy that he would permit no interference with Georgia's courts by orders of the Supreme Court and would resist by force any attempt to enforce them with all the forces at his command.[651]

Worcester v. Georgia

Two years later Georgia renewed its defiance of the Supreme Court in Worcester v. Georgia[652] which involved the conviction of two missionaries for residing among the Indians without a license. The Supreme Court reversed the conviction on the ground that the State had no jurisdiction over the Cherokee reservations and ordered Worcester's discharge in a special mandate to the superior court of Gwinnett County. The State court ignored the mandate and once again the governor of the State announced that he would meet such usurpation by the Supreme Court with determined resistance. Consequently, Worcester and Butler remained in jail until they agreed to abandon further efforts for their discharge by federal authority in the form of a writ of error, whereupon the governor pardoned them on the condition that they leave the State.

CONFLICTS OF JURISDICTION: COMITY

Aside from these more dramatic assertions of independence of federal courts, State court interference with the federal judiciary has occurred for the most part in conflicts of jurisdiction which affect only the lower federal courts as courts of concurrent jurisdiction and in attempts to release persons in federal custody. To the extent that this phase of federal-state relations is not governed by statute or the supremacy clause of article VI, it is governed by comity, a self-imposed rule of judicial morality whereby independent tribunals of concurrent or coordinate jurisdiction exercise a mutual restraint in order to prevent interference with each other and to avoid collisions of authority. Although the Court on one occasion has stated that the principle of comity is not a rule of law but "one of practice, convenience, and expediency"[653] which persuades, but does not command, it has also declared that in the American Federal System it has come to have "a higher sanction than the utility which comes from concord" and has been converted into a principle "of right and of law, and therefore of necessity."[654] As developed and applied by the Supreme Court the rule of comity is exemplified in three classes of cases: First, those in which a court has acquired jurisdiction of the res or the possession of property and another court interferes with that jurisdiction or possession; second, those in which a court has acquired jurisdiction or custody of the person and another interferes with such jurisdiction or custody, most frequently by discharges from custody in habeas corpus proceedings; and, third, those in which injunctions are used to stay proceedings in another court or to enjoin official action before the courts of proper jurisdiction have had an opportunity to adjudicate the issue.

JURISDICTION OF THE RES

As applied by the Supreme Court in cases involving concurrent jurisdiction the principle of comity means that when the jurisdiction of a court and the right of a plaintiff to prosecute a suit therein have attached and when a court has acquired constructive possession of property, such jurisdiction cannot be taken away or obstructed by proceedings in another court, nor can the possession of the property be disturbed by proceedings in another court; and the court which has first acquired jurisdiction of the cause or the possession of the res has exclusive jurisdiction to hear and determine the case and all controversies relating thereto, provided that the subject matter of the suit, the remedies sought, and the parties to it are the same, and provided further that it is not necessary for the federal courts to exercise jurisdiction in order to enforce the supremacy of the Constitution and laws of the United States.[655]

STATE INTERFERENCE BY INJUNCTION WITH FEDERAL JURISDICTION

It has long been settled as a general rule that State courts have no power to enjoin proceedings or judgments of the federal courts.[656] In United States ex rel. Riggs v. Johnson County[657] this rule was attributed to no paramount jurisdiction of the federal courts, but rather to the complete independence of the State and federal courts in their spheres of action. Like many of the rules governing federal-state court relations, this rule is not absolute, as shown by a case arising in Pennsylvania. Two surviving trustees had filed an account for themselves and a deceased trustee in a court of common pleas. Thereafter, two of the five beneficiaries sued the two trustees and the deceased trustee in a federal district court, charging mismanagement and praying for an accounting and restitution and removal of the trustees. The Supreme Court held that the State court upon the filing of the account acquired jurisdiction over the trust quasi in rem exclusively and therefore sustained the State court's injunction restraining the parties from further proceeding in the federal court while simultaneously holding that the district court could not enjoin the parties from proceeding in the State court.[658] The power of a State court to enjoin parties from proceeding in a federal court obviously does not include that of enjoining a federal court.

FEDERAL INTERFERENCE BY INJUNCTION WITH STATE JURISDICTION

The discretion of the federal courts to enjoin proceedings in State courts has not been left exclusively to doctrines of comity, for since 1793 the federal courts have been prohibited by statute from restraining proceedings in State courts.[659] Initially this statute was applied with strict literalness in condemning attempts by the lower federal courts to enter exceptions to it,[660] but gradually the Supreme Court began to interpret the provision as not prohibitive of all injunctions. First, it has been held that an injunction will lie against proceedings in a State court to protect the lawfully acquired jurisdiction of a federal court against impairment or defeat.[661] This exception is notably applicable to cases where the federal court has taken possession of property which it may protect by injunction from interference by State courts.[662] Second, in order to prevent irreparable damages to persons and property the federal courts may restrain the legal officers of a State from taking proceedings in State courts to enforce State legislation alleged to be unconstitutional.[663] Nor does the prohibition of Sec. 265 of the Judicial Code [28 U.S.C.A. Sec. 2283] prevent injunctions restraining the execution of judgments in State courts obtained by fraud,[664] the restraint of proceedings in State courts in cases which have been removed to the federal courts,[665] nor, until lately, to proceedings in State courts to relitigate issues previously adjudicated and finally settled by decrees of a federal court.[666]

In Toucey v. New York Life Insurance Co.,[667] Justice Frankfurter, as spokesman for the Court, reviewed earlier cases and in effect overruled the exception of suits designed to relitigate issues previously adjudicated by a federal court, and held that a suit for injunction would not lie to restrain a proceeding in a State court on the ground that the claim had been previously adjudicated. In so doing he placed this issue in its proper context of res judicata. In addition he went beyond the requirements of the case at bar to cast doubts upon the exception of suits brought to enjoin the execution of judgments of State courts obtained by fraud. Furthermore, by regarding the exception of suits restraining proceedings in State courts in cases which had been removed to the federal courts as emanating from the removal acts, Justice Frankfurter concluded that only one exception had been made by judicial construction to Sec. 265, [28 U.S.C.A. Sec. 2283] namely, that permitting injunction of proceedings in State courts to protect the possession of property previously acquired.[668] The rule of this case was extended on the same day to forbid an injunction to restrain proceedings in a State court in support of jurisdiction previously begun earlier and still pending in the federal court.[669]

Federal Injunctions of State Official Action

Injunctions by federal courts restraining State officials from enforcing unconstitutional State statutes constitute an indirect interference with State courts and a serious obstruction to the administration of public policy. From Osborn v. Bank of the United States,[670] which was the first case in which an injunction was used to restrain State action under an unconstitutional statute, to Ex parte Young[671] the Supreme Court established firmly the rule that jurisdiction exists in the federal courts to restrain the enforcement of unconstitutional State statutes and to enjoin State officials charged with the duty of enforcing State laws from bringing criminal or civil proceedings to enforce an invalid statute. Until Ex parte Young, the Court had been careful to sustain the jurisdiction of the lower federal courts to enjoin the enforcement of unconstitutional State legislation only after a finding of unconstitutionality,[672] but Ex parte Young abandoned this rule by holding that the enforcement of a State statute by the attorney general of the State through proceedings in State courts could be enjoined pending the determination of its constitutionality.

Ex Parte Young

Although a suit to restrain the attorney general of a State from proceeding in the courts of the State to enforce a State law not declared unconstitutional would seem effectively to stay proceedings in a State court, Justice Peckham drew a distinction between the power to enjoin the attorney general and other law officers as individuals and a suit against a State court on the ground that the former does not include the "power to prevent any investigation or action by a grand jury. The latter body is part of the machinery of a criminal court, and an injunction against a State court would be a violation of the whole scheme of our Government."[673] Justice Harlan, not convinced by this distinction, characterized the suit as an attempt "to tie the hands of the State so that it could not in any manner or by any mode of proceeding in its own courts, test the validity of the statutes and orders in question."[674]

Although the rigor of the rule of Ex parte Young has been mitigated by subsequent decisions[675] and the mode of its exercise somewhat narrowed by statute, it has not been overruled and remains a source of friction in federal-state relations. Simultaneously, however, Sec. 266 (see note 2 above[Transcriber's Note: Reference is to footnote 674 of Article III.]) has been construed strictly as designed "to secure the public interest in 'a limited class of cases of special importance,'"[676] and not "a measure of broad social policy to be construed with great liberality, but as an enactment technical in the strict sense of the term and to be applied as such."[677]

STATE INTERFERENCE BY HABEAS CORPUS PROCEEDINGS WITH FEDERAL JURISDICTION

The most spectacular type of State court interference with federal courts has been their use of the writ of habeas corpus to release persons in federal custody. Between 1815 and 1861, judges in nine State courts asserted the right to release persons in federal custody,[678] and the issue was not finally settled until 1859, when Ableman v. Booth[679] was decided. Here a Justice of the Wisconsin Supreme Court first released a prisoner held by a United States commissioner on charges of violating the fugitive slave law. After the trial, conviction, and sentence of the defendant, the State supreme court issued a second writ of habeas corpus and after hearing ordered the release of the prisoner. The national Supreme Court then issued a writ of error to the State court which refused to make a return. In an opinion based in part on national supremacy and in part on dual sovereignty, Chief Justice Taney, speaking for the Court, laid down the absolute rule that no State court has the power to release prisoners held in custody under the authority of the United States.[680]

Notwithstanding the strong language of the Court in Ableman v. Booth, the Wisconsin courts thirteen years later again asserted the power to release persons in federal custody by directing the release of an enlisted soldier in the custody of a recruiting officer of the United States Army. Once again the Court held that a State court has no authority to issue a writ of habeas corpus for the release of persons held under the authority or claim and color of authority of the United States. Justice Field for the Court went on to lay down the generalization that neither government "can intrude with its judicial process into the domain of the other, except so far as such intrusion may be necessary on the part of the National Government to preserve its rightful supremacy in cases of conflict of authority."[681]

FEDERAL INTERFERENCE BY REMOVAL AND HABEAS CORPUS

Another potential source of friction between State and federal courts is the use of the writ of habeas corpus or of removal proceedings in the federal courts to release persons from State custody. As has already been indicated the rule of national supremacy deprives the courts of the States of any power to release persons held in federal custody. Recourse to habeas corpus or removal proceedings in the federal courts to release persons in the custody of State courts is governed by statute and comity. The Judiciary Act of 1789[682] conferred jurisdiction upon the federal courts to issue writs of habeas corpus to release persons in State custody only for the purpose of having them appear as witnesses in federal proceedings. The same act also provided for the removal before trial into a federal court of civil cases arising under the laws of the United States. Both branches of this jurisdiction were broadened as a result of the nullification movement in South Carolina so as to make either removal or habeas corpus available to persons held in State custody for any act done or omitted in pursuance of the laws of the United States.[683] These recourses were in 1842 made available to aliens restrained by State authority in violation of their international rights,[684] and in 1867 to all persons restrained in violation of the Constitution, laws, or treaties of the United States.[685] In substance all these acts still remain on the statute book.[686]

Of these provisions the most important are those governing the release of persons held under State authority for an act done or omitted under federal authority and persons held in violation of the Constitution, laws, or treaties of the United States. In the leading case of Tennessee v. Davis,[687] decided in 1880, the question was faced of their constitutionality. Davis was a federal revenue officer who, in the discharge of his duties, killed a man, and was arraigned by Tennessee for murder. He thereupon applied for removal of his case to a federal court under the act of 1867. To Tennessee's evocation of the doctrine of State sovereignty, the Court rejoined with a ringing assertion of the principle of National Supremacy. Subsequently, the same provisions have been construed to procure the release of a deputy United States marshal from State custody for killing a man while protecting a Justice of the Supreme Court under a Presidential order which was regarded as a "law" of the United States;[688] the release of an election official held under State authority for perjury on the ground that jurisdiction to punish a false witness belonged to the federal courts in this instance;[689] and the release of a collector of internal revenue held in Kentucky for his refusal to file copies of his official papers with a State court.[690] Similarly, the governor of a national home for disabled soldiers was released from Ohio custody for serving oleomargarine in the home in violation of an Ohio statute.[691] A more extreme exercise of habeas corpus jurisdiction is illustrated by Hunter v. Wood[692] where a ticket agent of a railroad held in State custody for an overcharge on a ticket was released because prior to his trial in the State court, a United States circuit court had enjoined the enforcement of the statute. The element common to all of these cases is the supremacy of the National Government and the inability of the States through judicial proceedings or otherwise to obstruct the enforcement of federal authority. The doctrine of comity is inapplicable in this category of cases.

COMITY AS A PRINCIPLE OF STATUTORY CONSTRUCTION

On the other hand, in Ex parte Royall,[693] decided in 1886, the Court held that the jurisdiction of the lower federal courts in the above category of cases involved no duty to release persons from State custody but only a discretion to do so. Such discretion, the Court declared, "should be exercised in the light of the relations existing, under our system of government, between the judicial tribunals of the Union and of the States, and in recognition of the fact that the public good requires that those relations be not disturbed by unnecessary conflict between the courts equally bound to guard and protect rights secured by the Constitution."[694] In pursuance of these principles the Court has subsequently formulated rules to the effect that mere error in the prosecution and trial of a suit cannot confer jurisdiction upon a federal court to review the proceedings upon a writ of habeas corpus;[695] that the writ of habeas corpus cannot be substituted for the writ of error, however serious the errors committed by the State court;[696] that except in extreme and urgent cases the federal courts will not discharge a prisoner in State custody prior to final disposition of the case in the State courts, where the prisoner must first exhaust all State remedies; and even after the State courts have acted, the federal courts will usually leave the prisoner to the usual and orderly procedure of appeal to the Supreme Court. Furthermore, the Supreme Court will, in the exercise of a sound discretion, issue a writ of mandamus to compel a federal court to remand to a State court a prosecution of a federal officer removed to it, when it appears that the officer in question, in seeking removal, failed to make a candid, specific, and positive explanation of his relation to the transaction giving rise to the crime for which he was indicted.[697]

Because of the care with which the discretion to issue writs of habeas corpus and to grant removals has been exercised by the federal courts to release persons from State custody there has been a minimum of friction in this area of federal-state relations, in contrast to that produced by their extensive use of injunctions to restrain the enforcement of State statutes. In Wade v. Mayo,[698] Justice Murphy cited the statistics of the Administrative Office of the United States Courts which revealed that during the fiscal years of 1943, 1944, and 1945, there was an average of 451 habeas corpus petitions filed each year in federal district courts by persons in State custody, and that of these petitions, an average of only six per year resulted in a reversal of the conviction and the release of the prisoner.

COMITY AS COOPERATION

Moreover, cold comity may become on occasion warm cooperation between the two systems of courts. In Ponzi v. Fessenden,[699] the matter at issue was the authority of the Attorney General of the United States to consent to the transfer on a writ of habeas corpus of a federal prisoner to a State court to be there put on trial upon indictments there pending against him. The Court, speaking by Chief Justice Taft, while conceding that there was no express statutory authority for such action, sustained it. Said the Chief Justice: "We live in the jurisdiction of two sovereignties, each having its own system of courts to declare and enforce its laws in common territory. It would be impossible for such courts to fulfil their respective functions without embarrassing conflict unless rules were adopted by them to avoid it. The people for whose benefit these two systems are maintained are deeply interested that each system shall be effective and unhindered in its vindication of its laws. The situation requires, therefore, not only definite rules fixing the powers of the courts in cases of jurisdiction over the same persons and things in actual litigation, but also a spirit of reciprocal comity and mutual assistance to promote due and orderly procedure."[700]

EARLY USE OF STATE COURTS IN ENFORCEMENT OF FEDERAL LAW

The final phase of the relation of State courts has to do with their administration of federal law. Although it is the general rule that Congress cannot vest the judicial power of the United States in courts other than those created in pursuance of article III,[701] it has from the beginning of the National Government left to the State courts wide areas of jurisdiction which it might have vested exclusively in the federal courts, section 25 of the Judiciary Act of 1789 offering the supreme illustration. But going far beyond that, in the latter years of the eighteenth century and the early part of the nineteenth, Congress provided that suits by the National Government itself for fines, forfeitures, and penalties imposed by the revenue laws might be brought in State courts of competent jurisdiction as well as in the federal courts.[702] The Fugitive Slave Act of 1793,[703] the Naturalization Act of 1795,[704] and the Alien Enemies Act of 1798,[705] all imposed positive duties on State courts to enforce federal law. In 1799 the State courts were vested with jurisdiction to try criminal offenses against federal laws.[706] Extensive reliance was placed on State courts for the enforcement of the Embargo Acts;[707] and the act of March 3, 1815,[708] vested in State or county courts within or directly adjoining a federal tax-collection district cognizant "of all complaints, suits and prosecutions for taxes, duties, fines, penalties, and forfeitures."

Retreat From This Practice

The indifference, however, of the State courts in New England to the Embargo Acts, the later hostility of courts in the northern States to the Fugitive Slave Act, and the refusal of courts in other States to administer federal law on the general principle that the courts of no nation are bound to enforce the penal laws of another,[709] all combined to produce strong sentiments against the use of State courts to administer federal law. These sentiments came in time to be incorporated in dissenting opinions,[710] and in 1842 in Prigg v. Pennsylvania[711] the Court definitely ruled that the States could not be compelled to enforce federal law. However, it was later held that this ruling did not prevent Congress from authorizing State courts to administer federal law or the action taken by them, if they choose to do so, from being valid.[712]

Resumption of the Practice

Near the end of the nineteenth century and afterwards Congress resumed its earlier practice of vesting concurrently the enforcement of federally created rights in the State and federal courts. The administration of Indian lands and the determination of rights to inherit allotted lands[713] marked the beginning of the restoration of the use of State courts to apply federal law, and the Federal Employers' Liability Act of 1908[714] carried the practice further, not only by vesting concurrent jurisdiction in suits arising under the act, in State courts but also in prohibiting the removal of cases begun in State courts to the federal courts. Soon afterwards the Connecticut courts in a compensation case applied the State's common law rules of liability contrary to the federal act and held that Congress could not require a State court to grant a remedy which local law did not permit. The Connecticut courts further held that enforcement of the federal act was contrary to the public policy of the State.[715] This decision was overruled in the Second Employers' Liability Cases,[716] where it was held on the basis of national supremacy that rights arising under the act can be enforced "as of right, in the courts of the States when their jurisdiction, as prescribed by local laws, is adequate to the occasion." Subsequently, the Supreme Court has held that the rights created under this statute cannot be defeated by forms of local practice and that it is the duty of the Supreme Court to construe allegations in a complaint asserting a right under the liability act in order to determine whether a State court has denied a right of trial guaranteed by Congress.[717]

STATE OBLIGATION TO ENFORCE FEDERAL LAW

The issue of State obligation to administer federal law was presented most recently by Testa v. Katt.[718] This case arose out of the Emergency Price Control Act of 1942,[719] which provided that persons who had been overcharged in violation of the act or, in the alternative, the Price Administrator, could sue for treble damages in any court of competent jurisdiction. On the ground that one sovereign cannot enforce the penal laws of another, the Rhode Island Supreme Court ruled that the State courts had no jurisdiction of such suits. Assuming for the purposes of the case that the treble damage provision, was "penal" in nature, Justice Black for a unanimous Court proceeded to lay to rest the principle that a State court is not bound to enforce federal criminal law as an assumption flying "in the face of the fact that the States of the Union constitute a nation" and one which disregarded the supremacy clause. Justice Black also pointed to early acts of Congress and early decisions of the Supreme Court as establishing the rule that "State courts do not bear the same relation to the United States as they do to foreign countries."[720] The Prigg case, though not overruled expressly, was ignored save for its citation in a footnote.[721]

RIGHT OF FOREIGN CORPORATIONS TO RESORT TO FEDERAL COURTS

In a series of cases the Court has been called upon to adjudicate between the power of a State to exclude foreign corporations from doing a purely domestic business within its borders and the right of such foreign corporations to resort to the federal courts. After deciding first one way and then the other, on the basis of some highly refined distinctions,[722] it finally, in 1922, came out unqualifiedly for the latter right. This was in Terral v. Burke Construction Co.,[723] in which an Arkansas statute requiring the cancellation of the license of a foreign corporation to do business in the State, upon notice that such corporation had removed a case to a federal court, was pronounced void. At the same time all contrary decisions were explicitly overruled.

Clause 3. The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed. See Amendment VI, pp. 878-881.

Section 3. Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the testimony of two Witnesses to the same overt Act, or on Confession in open Court.

Treason

The provisions and phraseology of this section are derived from the English Statute of Treasons enacted in 1351, in the reign of Edward III,[724] as an expression of grievance against the application of the doctrine of constructive treasons by the common law courts. The constitutional definition is, of course, much more restrictive than the enumeration of treasons in the English statute, but like that statute, it is emphatically a limitation on the power of government to define treason and to prove its existence. The rigid and exclusive definition of treason takes from Congress all power to define treason and prescribes limitations on the power to prescribe punishment thereupon.

LEVYING WAR

Early judicial interpretation of the meaning of treason in terms of levying war was conditioned by the partisan struggles of the early nineteenth century, in which were involved the treason trials of Aaron Burr and his associates. In Ex parte Bollman,[725] which involved two of Burr's confederates, Chief Justice Marshall, speaking for himself and three other Justices, confined the meaning of levying of war to the actual waging of war. "However flagitious may be the crime of conspiring to subvert by force the government of our country, such conspiracy is not treason. To conspire to levy war and actually to levy war, are distinct offences. The first must be brought into open action, by the assemblage of men for a purpose treasonable in itself, or the fact of levying war cannot have been committed. So far has this principle been carried, that * * * it has been determined that the actual enlistment of men, to serve against the government, does not amount to the levying of war."[726] Chief Justice Marshall was careful, however, to state that the Court did not mean that no person could be guilty of this crime who had not appeared in arms against the country. "On the contrary, if it be actually levied, that is, if a body of men be actually assembled, for the purpose of effecting by force a treasonable purpose, all those who perform any part, however minute, or however remote from the scene of action, and who are actually leagued in the general conspiracy, are to be considered as traitors. But there must be an actual assembling of men, for the treasonable purpose, to constitute a levying of war."[727] On the basis of these considerations and due to the fact that no part of the crime charged had been committed in the District of Columbia, the Court held that Bollman and Swartwout could not be tried in the District and ordered their discharge. He continued by saying that "the crime of treason should not be extended by construction to doubtful cases" and concluded that no conspiracy for overturning the Government and "no enlisting of men to effect it, would be an actual levying of war."[728]

The Burr Trial

Not long afterward the Chief Justice went to Richmond to preside over the trial of Burr himself. His ruling[729] denying a motion to introduce certain collateral evidence bearing on Burr's activities is significant both for rendering the latter's acquittal inevitable and for the qualifications and exceptions made to the Bollman decision. In brief this ruling held that Burr, who had not been present at the assemblage on Blennerhassett's Island, could be convicted of advising or procuring a levying of war, only upon the testimony of two witnesses to his having procured the assemblage. This operation having been covert, such testimony was naturally unobtainable. The net effect of Marshall's pronouncements was to make it extremely difficult to convict one of levying war against the United States short of the conduct of or personal participation in actual hostilities.[730]

AID AND COMFORT TO THE ENEMY; THE CRAMER CASE

Since the Bollman case only three treason cases have ever reached the Supreme Court, all of them outgrowths of World War II and all charging adherence to enemies of the United States and giving them aid and comfort. In the first of these, Cramer v. United States,[731] the issue was whether the "overt act" had to be "openly manifest treason" or if it was enough if, when supported by other proper evidence, it showed the required treasonable intention.[732] The Court in a five-to-four opinion by Justice Jackson in effect took the former view holding that "the two-witness principle" interdicted "imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness,"[733] even though the single witness in question was the accused himself. "Every act, movement, deed, and word of the defendant charged to constitute treason must be supported by the testimony of two witnesses,"[734] Justice Jackson asserted. Justice Douglas in a dissent, in which Chief Justice Stone and Justices Black and Reed concurred, contended that Cramer's treasonable intention was sufficiently shown by overt acts as attested to by two witnesses each, plus statements made by Cramer on the witness stand.

THE HAUPT CASE

The Supreme Court sustained a conviction of treason, for the first time in its history in 1947 in Haupt v. United States.[735] Here it was held that although the overt acts relied upon to support the charge of treason--defendant's harboring and sheltering in his home his son who was an enemy spy and saboteur, assisting him in purchasing an automobile, and in obtaining employment in a defense plant--were all acts which a father would naturally perform for a son, this fact did not necessarily relieve them of the treasonable purpose of giving aid and comfort to the enemy. Speaking for the Court, Justice Jackson said: "No matter whether young Haupt's mission was benign or traitorous, known or unknown to the defendant, these acts were aid and comfort to him. In the light of his mission and his instructions, they were more than casually useful; they were aid in steps essential to his design for treason. If proof be added that the defendant knew of his son's instructions, preparation and plans, the purpose to aid and comfort the enemy becomes clear."[736]

The Court held that conversations and occurrences long prior to the indictment were admissible evidence on the question of defendant's intent. And more important, it held that the constitutional requirement of two witnesses to the same overt act or confession in open court does not operate to exclude confessions or admissions made out of court, where a legal basis for the conviction has been laid by the testimony of two witnesses of which such confessions or admissions are merely corroborative. This relaxation of restrictions surrounding the definition of treason evoked obvious satisfaction from Justice Douglas who saw in the Haupt decision a vindication of his position in the Cramer case. His concurring opinion contains what may be called a restatement of the law of treason and merits quotation at length;

"As the Cramer case makes plain, the overt act and the intent with which it is done are separate and distinct elements of the crime. Intent need not be proved by two witnesses but may be inferred from all the circumstances surrounding the overt act. But if two witnesses are not required to prove treasonable intent, two witnesses need not be required to show the treasonable character of the overt act. For proof of treasonable intent in the doing of the overt act necessarily involves proof that the accused committed the overt act with the knowledge or understanding of its treasonable character.

"The requirement of an overt act is to make certain a treasonable project has moved from the realm of thought into the realm of action. That requirement is undeniably met in the present case, as it was in the case of Cramer.

"The Cramer case departed from those rules when it held that 'The two-witness principle is to interdict imputation of incriminating acts to the accused by circumstantial evidence or by the testimony of a single witness.' 325 U.S. p. 35. The present decision is truer to the constitutional definition of treason when it forsakes that test and holds that an act, quite innocent on its face, does not need two witnesses to be transformed into an incriminating one."[737]

THE KAWAKITA CASE

The third case referred to above is Kawakita v. United States,[738] which was decided on June 2, 1952. The facts are sufficiently stated in the following headnote: "At petitioner's trial for treason, it appeared that originally he was a native-born citizen of the United States and also a national of Japan by reason of Japanese parentage and law. While a minor, he took the oath of allegiance to the United States; went to Japan for a visit on an American passport; and was prevented by the outbreak of war from returning to this country. During the war, he reached his majority in Japan; changed his registration from American to Japanese; showed sympathy with Japan and hostility to the United States; served as a civilian employee of a private corporation producing war materials for Japan; and brutally abused American prisoners of war who were forced to work there. After Japan's surrender, he registered as an American citizen; swore that he was an American citizen and had not done various acts amounting to expatriation; and returned to this country on an American passport." The question whether, on this record Kawakita had intended to renounce American citizenship, said the Court, in sustaining conviction, was peculiarly one for the jury and their verdict that he had not so intended was based on sufficient evidence. An American citizen, it continued, owes allegiance to the United States wherever he may reside, and dual nationality does not alter the situation.[739]

DOUBTFUL STATE OF THE LAW OF TREASON TODAY

The vacillation of Chief Justice Marshall between the Bollman[740] and Burr[741] cases and the vacillation of the Court in the Cramer[742] and Haupt[743] cases leaves the law of treason in a somewhat doubtful condition. The difficulties created by the Burr case have been obviated to a considerable extent through the punishment of acts ordinarily treasonable in nature under a different label within a formula provided by Chief Justice Marshall himself in the Bollman case. The passage reads: "Crimes so atrocious as those which have for their object the subversion by violence of those laws and those institutions which have been ordained in order to secure the peace and happiness of society, are not to escape punishment, because they have not ripened into treason. The wisdom of the legislature is competent to provide for the case; and the framers of our Constitution * * * must have conceived it more safe that punishment in such cases should be ordained by general laws, formed upon deliberation, under the influence of no resentments, and without knowing on whom they were to operate, than that it should be inflicted under the influence of those passions which the occasion seldom fails to excite, and which a flexible definition of the crime, or a construction which would render it flexible, might bring into operation."[744]

Clause 2. The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.

CORRUPTION OF BLOOD AND FORFEITURE

The Confiscation Act of 1862[745] "to Suppress Insurrection; to Punish Treason and Rebellion; to Seize and Confiscate the Property of Rebels raised issues under article III, section 3, clause 2." Because of the constitutional doubts of the President the act was accompanied by an explanatory joint resolution which stipulated that only a life estate terminating with the death of the offender could be sold and that at his death his children could take the fee simple by descent as his heirs without deriving any title from the United States. In applying this act, passed in pursuance of the war power and not the power to punish treason,[746] the Court in one case[747] quoted with approval the English distinction between a disability absolute and perpetual and one personal or temporary. Corruption of blood as a result of attainder of treason was cited as an example of the former and was defined as the disability of any of the posterity of the attainted person "to claim any inheritance in fee simple, either as heir to him, or to any ancestor above him."[748]

Notes

[1] Miller, On the Constitution, 314 (New York, 1891).

[2] 219 U.S. 346 (1911)

[3] Ibid. 361.

[4] United States v. Arredondo, 6 Pet. 691 (1832).

[5] General Investment Co. v. New York Central R. Co., 271 U.S. 228, 230 (1926).

[6] For distinctions between judicial power and jurisdiction see Williams v. United States, 289 U.S. 553, 566 (1933); and the dissent of Justice Rutledge in Yakus v. United States, 321 U.S. 414, 467-468 (1944).

[7] Michaelson v. United States, 266 U.S. 42 (1924).

[8] McIntire v. Wood, 7 Cr. 504 (1813); Ex parte Bollman, 4 Cr. 75 (1807).

[9] Wayman v. Southard, 10 Wheat. 1 (1825)

[10] Gumbel v. Pitkin, 124 U.S. 131 (1888).

[11] Ex parte Peterson, 253 U.S. 300 (1920).

[12] Ex parte Garland, 4 Wall. 333, 378 (1867).

[13] Chisholm v. Georgia, 2 Dall. 419 (1793); Kentucky v. Dennison, 24 How. 66, 98 (1861) contains a review of authorities on this point.

[14] Mayor of Nashville v. Cooper, 6 Wall. 247, 252 (1868); Cary v. Curtis, 3 How. 236 (1845); Shelden v. Sill, 8 How. 441 (1850); Kline v. Burke Construction Co., 260 U.S. 226 (1922). See also the cases discussed under the heading of the Power of Congress to regulate the jurisdiction of the lower federal courts, infra, p. 616.

[15] 2 Dall. 409 (1792).

[16] His initial effort was in United States v. Ferreira, 13 How. 40 (1852). This case involved the validity of an act of Congress directing the judge of the territorial court of Florida to examine and adjudge claims of Spanish subjects against the United States and to report his decisions with evidence thereon to the Secretary of the Treasury who in turn was to pay the award to the claimant if satisfied that the decisions were just and within the terms of the treaty of cession. After Florida became a State and the territorial court a district court of the United States, the Supreme Court refused to entertain an appeal under the statute for want of jurisdiction to review nonjudicial proceedings. The duties required by the act, it was said "are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws." Ibid. 51.

[17] 2 Wall. 561 (1865).

[18] 117 U.S. 697 Appx. (1864). See also De Groot v. United States, 5 Wall. 419 (1867) and United States v. Klein, 13 Wall. 128 (1872), which sustained Supreme Court revision after the jurisdiction of the Court of Claims had been made final. The Gordon decision had indicated that the Supreme Court could not review the decision of any legislative court.

[19] 117 U.S. 697, 703. This last doctrine was repeated to the extent that for many years an award of execution as distinguished from finality of judgment came to be regarded as an essential attribute of judicial power. See In re Sanborn, 148 U.S. 222, 226 (1893); Interstate Commerce Commission v. Brimson, 154 U.S. 447, 483 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423, 457 (1899); Frasch v. Moore, 211 U.S. 1 (1908); Muskrat v. United States, 219 U.S. 346, 355, 361-362 (1911), and Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927).

[20] 273 U.S. 70 (1927).

[21] 276 U.S. 71 (1928).

[22] 274 U.S. 123 (1927). This case also clarified any doubts concerning a federal declaratory judgment act which was passed in 1934 and sustained in Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937).

[23] 288 U.S. 249 (1933). The decision in the Swope and Wallace cases removed all constitutional doubts which had previously shrouded a proposed federal declaratory judgment act which was enacted in 1934 (48 Stat. 955) and sustained in Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).

[24] John Charles Fox, The King v. Almon, 24 Law Quarterly Review 184, 194-195 (1908).

[25] John Charles Fox, The Summary Power to Punish Contempt, 25 Law Quarterly Review, 238, 252 (1909).

[26] 1 Stat. 73, 83.

[27] Act of March 2, 1831, 4 Stat. 487, now 18 U.S.C.A. 401. For a summary of the Peck Impeachment and the background of the act of 1831, see Felix Frankfurter and James Landis, Power of Congress Over Procedure in Criminal Contempts in Inferior Federal Courts--A Study in Separation of Powers, 37 Harvard Law Review, 1010, 1024-1028 (1924).

[28] 19 Wall. 505 (1874).

[29] Ibid. 505, 510-511.

[30] Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 450 (1911). See also In re Debs, 158 U.S. 504, 595 (1895).

[31] U.S. 42 (1924).

[32] 38 Stat. 730 (1914).

[33] 266 U.S. 42, 65-66.

[34] 247 U.S. 402 (1918).

[35] Ibid. 418-421.

[36] 263 U.S. 255 (1923). In his dissent in this case, Justice Holmes stated that unless a judge has power to "lay hold of anyone who ventures to publish anything that tends to make him unpopular or to belittle him * * *. A man cannot be summarily laid by the heels because his words may make public feeling more unfavorable in case the judge should be asked to act at some later date, any more than he can for exciting feeling against a judge for what he already has done." Ibid. 281-282.

[37] 313 U.S. 33, 47-53 (1941).

[38] 314 U.S. 252, 260 (1941). See pp. 783-784 (Amendment I).

[39] 128 U.S. 289 (1888).

[40] 267 U.S. 517 (1925).

[41] Ibid. 534, 535.

[42] Ibid. 539.

[43] Sacher v. United States, 343 U.S. 1 (1952).

[44] Dennis v. United States, 341 U.S. 494 (1951).

[45] 343 U.S. 1, 11, 13-14. Justice Clark did not participate. Justices Black, Frankfurter, and Douglas dissented. Justice Frankfurter's opinion is accompanied by an elaborate review of exchanges between the trial judge and defense counsel, excerpted from the record of the case. On the constitutional issue he said: "Summary punishment of contempt is concededly an exception to the requirements of Due Process. Necessity dictates the departure. Necessity must bound its limits. In this case the course of events to the very end of the trial shows that summary measures were not necessary to enable the trial to go on. Departure from established judicial practice, which makes it unfitting for a judge who is personally involved to sit in his own case, was therefore unwarranted. Neither self-respect nor the good name of the law required it. Quite otherwise. Despite the many incidents of contempt that were charged, the trial went to completion, nine months after the first incident, without a single occasion making it necessary to lay any one of the lawyers by the heel in order to assure that the trial proceed. The trial judge was able to keep order and to continue the court's business by occasional brief recesses calculated to cool passions and restore decorum, by periodic warnings to defense lawyers, and by shutting off obstructive arguments whenever rulings were concisely stated and firmly held to." Ibid. 36. Justice Douglas summarized the position of all three dissenters, as follows: "I agree with Mr. Justice Frankfurter that one who reads this record will have difficulty in determining whether members of the bar conspired to drive a judge from the bench or whether the judge used the authority of the bench to whipsaw the lawyers, to taunt and tempt them, and to create for himself the role of the persecuted. I have reluctantly concluded that neither is blameless, that there is fault on each side, that we have here the spectacle of the bench and the bar using the courtroom for an unseemly demonstration of garrulous discussion and of ill will and hot tempers. I therefore agree with Mr. Justice Black and Mr. Justice Frankfurter that this is the classic case where the trial for contempt should be held before another judge. I also agree with Mr. Justice Black that petitioners were entitled by the Constitution to a trial by jury." Ibid. 80.

[46] 330 U.S. 258, 293-307 (1947).

[47] 203 U.S. 563 (1906)

[48] Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 441-443 (1911); Ex parte Grossman, 267 U.S. 87 (1925). See also Bessette v. W.B. Conkey Co., 194 U.S. 324, 327-328 (1904).

[49] 267 U.S. 87, 119-120 (1925).

[50] Michaelson v. United States, 266 U.S. 42, 65-66 (1924).

[51] 154 U.S. 447 (1894).

[52] Penfield Co. v. Securities and Exchange Commission, 330 U.S. 585 (1947). Note the dissent of Justice Frankfurter. For delegations of the subpoena power to administrative agencies and the use of judicial process to enforce them see also McCrone v. United States, 307 U.S. 61 (1939); Endicott Johnson Corp. v. Perkins, 317 U.S. 501 (1943); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946). In the last mentioned case Justice Murphy dissented on the ground that delegation of the subpoena power to nonjudicial officers is unconstitutional as "a corrosion of liberty." In the Endicott Johnson Case he expressed dissatisfaction with the exercise of this power by administrative agencies but confined his dissent to emphasizing greater judicial scrutiny in enforcing administrative orders to appear and produce testimony.

[53] 1 Stat. 73, 81.

[54] Ibid. 81-82.

[55] 1 Cr. 137 (1803). Cf. Wiscart v. Dauchy, 3 Dall. 321 (1796).

[56] McIntire v. Wood, 7 Cr. 504 (1813); and McClung v. Silliman, 6 Wheat. 598 (1821).

[57] 12 Pet. 524 (1838).

[58] Ex parte Bollman, 4 Cr. 74, 93, 94 (1807).

[59] Ex parte Yerger, 8 Wall. 85 (1869).

[60] See also Ex parte McCardle, 7 Wall. 506 (1869).

[61] In United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 339 (1906), Justice Brewer, speaking for the Court, approached a theory of inherent equity jurisdiction when he declared: "The principles of equity exist independently of and anterior to all Congressional legislation, and the statutes are either annunciations of those principles or limitations upon their application in particular cases." It should be emphasized, however, that the Court made no suggestion that it could apply pre-existing principles of equity without jurisdiction over the subject matter. Indeed, the inference is to the contrary. In a dissenting opinion in which Justices McKenna and Van Devanter joined, in Paine Lumber Co. v. Neal, 244 U.S. 459, 475 (1917), Justice Pitney contended that article III, section 2, "had the effect of adopting equitable remedies in all cases arising under the Constitution and laws of the United States where such remedies are appropriate."

[62] Boyce's Executors v. Grundy, 3 Pet. 210 (1830).

[63] 1 Stat. 333; 28 U.S.C.A. 1651.

[64] 14 Stat. 475 (1867); 26 U.S.C.A. 3653 (a).

[65] 36 Stat. 557 (1910); 28 U.S.C.A. 2281.

[66] 50 Stat. 752 (1937); 28 U.S.C.A. 2282.

[67] 38 Stat. 220 (1913); 28 U.S.C.A. 2325.

[68] 48 Stat. 775 (1934); 28 U.S.C.A. 1342.

[69] 38 Stat. 730 (1914) (Clayton Act); 29 U.S.C.A. 52, and 47 Stat. 70 (1932) (Norris-LaGuardia Act); 29 U.S.C.A. 101-115.

[70] 56 Stat. 31 (1942), Sec. 204; 50 U.S.C.A. 924 (App.).

[71] Freeman v. Howe, 24 How. 450 (1861); Gaines v. Fuentes, 92 U.S. 10 (1876); Ex parte Young, 209 U.S. 123 (1908).

[72] Langnes v. Green, 282 U.S. 531 (1931); Riehle v. Margolies, 270 U.S. 218 (1929), and Essanay Film Mfg. Co. v. Kane, 258 U.S. 358 (1922). See also Hill v. Martin, 296 U.S. 393, 403 (1935); Kohn v. Central Distributing Co., 306 U.S. 531, 534 (1939); and Oklahoma Packing Co. v. Oklahoma Gas and Electric Co., 309 U.S. 4, 9 (1940).

[73] 254 U.S. 443 (1921).

[74] Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552 (1938).

[75] In addition to the cases cited in note 2, [Transcriber's Note: Reference is to Footnote 74, above.] see Milk Wagon Drivers' Union v. Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).

[76] 319 U.S. 182 (1943).

[77] Ibid. 187, quoting Cary v. Curtis, 3 How. 236, 245 (1845).

[78] 321 U.S. 414 (1944).

[79] Washington-Southern Navigation Co. v. Baltimore Co., 263 U.S. 629 (1924).

[80] 10 Wheat. 1 (1825).

[81] 106 U.S. 272, 280 (1882).

[82] Washington-Southern Navigation Co. v. Baltimore Co., 263 U.S. 629, 635, 636 (1924).

[83] McDonald v. Pless, 238 U.S. 264, 266 (1915); Griffin v. Thompson, 2 How. 244, 257 (1844).

[84] Gumbel v. Pitkin, 124 U.S. 131 (1888); Covell v. Heyman, 111 U.S. 176 (1884), and Buck v. Colbath, 3 Wall. 334 (1866).

[85] Eberly v. Moore, 24 How. 147 (1861); Arkadelphia Milling Co. v. St. Louis S.W.R. Co., 249 U.S. 134 (1919).

[86] Gagnon v. United States, 193 U.S. 451, 458 (1904).

[87] 2 Wall. 123, 128-129 (1864).

[88] 253 U.S. 300 (1920).

[89] Ibid. 312.

[90] Ex parte Secombe, 19 How. 9, 13 (1857).

[91] 4 Wall. 333 (1867).

[92] Ibid. 378-380. For an extensive treatment of disbarment and American and English precedents thereon, see Ex parte Wall, 107 U.S. 265 (1883).

[93] Reorganization of the Judiciary, Hearings on S. 1392; 75th Cong., 1st sess., 1937, Pt. 3, p. 491. Justices Van Devanter and Brandeis approved the letter. For earlier proposals to have the Court sit in divisions, see Felix Frankfurter and James M. Landis, The Business of the Supreme Court, pp. 81-83, (New York, 1928).

[94] 1 Stat. 73-74, Sec. 2-3.

[95] Ibid. 73, 74-76; Sec. 4-5.

[96] 2 Stat. 89.

[97] 2 Stat. 132. For a general account of the events leading to the acts of 1801 and 1802, see Felix Frankfurter and James M. Landis, The Business of the Supreme Court; a study in the federal judicial system (New York, 1928), pp. 25-32. This book also contains an excellent account of the organization and reorganization of the judiciary by statute from time to time. For another account of the acts of 1801 and 1802 see Charles Warren, The Supreme Court in United States History (Boston, Rev. ed., 1932), 189-215.

[98] 1 Cr. 299, 309 (1803).

[99] 38 Stat. 208, 219-221.

[100] Prior to the act of 1913 Congress had voted to abolish the Commerce Court, but President Taft vetoed the bill which converted the Commerce Court judges into ambulatory circuit judges. For a general account of the abolition of the Commerce Court, see Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 166-173.

[101] Evans v. Gore, 253 U.S. 245 (1920).

[102] 268 U.S. 501 (1925).

[103] 307 U.S. 277 (1939).

[104] Ibid. 278-282.

[105] Ibid. 282.

[106] 289 U.S. 516, 526 (1933).

[107] 289 U.S. 553 (1933).

[108] 36 Stat. 539 (1910). For the legislative history of the Commerce Court see Felix Frankfurter and James M. Landis, The Business of the Supreme Court (New York, 1928), pp. 155-164.

[109] 56 Stat. 23, 31-33.

[110] In Lockerty v. Phillips, 319 U.S. 182 (1943), the limitations on the use of injunctions, except the prohibition against interlocutory decrees, was unanimously sustained.

[111] 321 U.S. 414 (1944).

[112] Ibid. 444.

[113] Ibid. 468.

[114] Pet. 511 (1928).

[115] Ibid. 546.

[116] Ibid. 546. Closely analogous to the territorial courts are extraterritorial and consular courts created in the exercise of the foreign relations power. See In re Ross, 140 U.S. 453 (1891).

[117] 279 U.S. 438 (1929).

[118] Ibid. 451.

[119] Gordon v. United States, 117 U.S. 697 (1886); McElrath v. United States, 102 U.S. 426 (1880); Williams v. United States, 289 U.S. 553 (1933).

[120] United States v. Coe, 155 U.S. 76 (1894).

[121] Wallace v. Adams, 204 U.S. 415 (1907).

[122] Old Colony Trust Co. v. Commissioner of Internal Revenue, 279 U.S. 716 (1929); Ex parte Bakelite Corporation, 279 U.S. 438 (1929).

[123] The general tendency in the evolution of legislative courts is to provide for tenure during good behavior. This is true of the judges of the Court of Claims, the Customs Court, the Court of Customs and Patent Appeals. The terms of the judges of the Tax Court are limited to twelve years and the judges are subject to removal by the President after notice and hearing. For the provisions of the statutes governing these matters see 28 U.S.C. Sec. 241, 296, 301-301a; 26 U.S.C. Sec. 1102b, d, f. The territorial judges in Alaska (48 U.S.C. Sec. 112) have four-year terms subject to removal by the President; in Hawaii six years unless removed by the President (48 U.S.C. Sec. 643), eight years in Puerto Rico (28 U.S.C. Sec. 803); eight years in the Canal Zone subject to removal by the President (48 U.S.C. Sec. 1353); and four years in the Virgin Islands unless sooner removed by the President (48 U.S.C. Sec. 1405y).

[124] 141 U.S. 174 (1891).

[125] Ibid. 188

[126] 289 U.S. 553 (1933).

[127] 268 U.S. 501 (1925).

[128] 117 U.S. 697 (1886).

[129] 13 How. 40, 48 (1852). See also Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923); Federal Radio Commission v. General Electric Co., 231 U.S. 464 (1930).

[130] 5 Wall. 419 (1867).

[131] Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930); Pope v. United States, 323 U.S. 1 (1944).

[132] 112 U.S. 50 (1884).

[133] Keller v. Potomac Electric Co., 261 U.S. 428 (1923).

[134] Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930).

[135] 279 U.S. 438 (1929). All of these rulings with respect to the vesting of revisory powers in the courts of the District carried the qualification that revisory actions and interlocutory opinions, as nonjudicial functions, were not reviewable on appeal to the Supreme Court of the United States. Frasch v. Moore, 211 U.S. 1 (1908); E.C. Atkins & Co. v. Moore, 212 U.S. 285 (1909); Keller v. Potomac Electric Co., 261 U.S. 428 (1923); Federal Radio Commission v. General Electric Co., 281 U.S. 464 (1930).

[136] O'Donoghue v. United States, 289 U.S. 516 (1933).

[137] Ibid. 545-546.

[138] Ibid. 545. Chief Justice Hughes in a dissent joined by Justice Van Devanter and Cardozo took the position that the plenary power of Congress over the District is complete in itself and its power to create courts in the District is not derived from article III. Consequently, they argued that the limitations of article III do not apply to the organization of such courts. The O'Donoghue Case is discussed in the opinions of Justices Jackson and Rutledge and in the dissent of Chief Justice Vinson in National Mutual Insurance Co. v. Tidewater Transfer Co., 337 U.S. 582, 601-602, 608-611, 638-640 (1949).

[139] 6 Wheat. 264 (1821).

[140] Ibid. 378.

[141] Miller, Constitution, 314, quoted in Muskrat v. United States, 219 U.S. 346, 356 (1911).

[142] 9 Wheat. 738, 819 (1824).

[143] 2 Dall. 419, 431, 432 (1793).

[144] In re Pacific Railway Commission, 32 F. 241, 255 (1887). Justice Field repeated the substance of this definition in Smith v. Adams, 130 U.S. 167, 173-174 (1889).

[145] 219 U.S. 346, 357 (1911).

[146] Ibid. 361-362. Judicial power is here defined by Justice Day as "the right to determine actual controversies arising between adverse litigants, duly instituted in courts of proper jurisdiction." Ibid. 361.

[147] Muskrat v. United States, 219 U.S. 346 (1911); Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339 (1892); Lampasas v. Bell, 180 U.S. 276 (1901); Braxton County Court v. West Virginia, 208 U.S. 192 (1908); Smith v. Indiana, 191 U.S. 138 (1903); Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896).

[148] 143 U.S. 339 (1892).

[149] Ibid. 345.

[150] Muskrat v. United States, 219 U.S. 346 (1911).

[151] Lampasas v. Bell, 180 U.S. 276, 284 (1901).

[152] Braxton County Court v. West Virginia, 208 U.S. 192 (1908).

[153] Ibid. 198.

[154] Smith v. Indiana, 191 U.S. 138, 149 (1903).

[155] Tregea v. Modesto Irrigation District, 164 U.S. 179 (1896).

[156] Coffman v. Breeze Corporations, Inc., 323 U.S. 316, 324-325 (1945), citing Tyler v. The Judges, 179 U.S. 405 (1900); Hendrick v. Maryland, 235 U.S. 610 (1915).

[157] Fleming v. Rhodes, 331 U.S. 100, 104 (1947). See also Blackmer v. United States, 284 U.S. 421, 442 (1932); Virginian R. Co. v. System Federation, 300 U.S. 515 (1937); Carmichael v. Southern Coal & Coke Co., 301 U.S. 495, 513 (1937).

[158] 157 U.S. 429 (1895). The first injunction suit by a stockholder to restrain a corporation from paying the tax appears to be Dodge v. Woolsey, 18 How. 331 (1856) which involved the validity of an Ohio tax. The suit was entertained on the basis of English precedents. A case similar to the Pollock Case is Brushaber v. Union Pacific R. Co., 240 U.S. 1 (1916). Hawes v. Oakland, 104 U.S. 450 (1881) is cited in the Pollock Case, although it in fact threw out a stockholder's suit.

[159] Cf. Cheatham et al. v. United States, 92 U.S. 85 (1875); and Snyder v. Marks, 109 U.S. 189 (1883).

[160] Smith v. Kansas City Title Co., 255 U.S. 180, 201, 202 (1921).

[161] Ashwander v. Tennessee Valley Authority, 297 U.S. 288 (1936). Although the holdings of the plaintiffs amounted to only one-three hundred and fortieth of the preferred stock, the Court ruled that the right to maintain the suit was not affected by the smallness of the holdings.

[162] 298 U.S. 238 (1936).

[163] Robert L. Stern, in The Commerce Clause and the National Economy, 59 Harv. L. Rev. 645, 667-668 (1948), gives the following account of the litigation in the first bituminous coal case: On the same day that the Bituminous Coal Act became law, the directors of the Carter Coal Company met in New York. James Carter presented a letter saying the Coal Act was unconstitutional and that the company should not join the Code. His father agreed that the act was invalid, but thought the company should not take the risk of paying the tax required of nonmembers in the event the act should be sustained. The third director agreed with the elder Carter, and the board passed a resolution rejecting James Carter's proposals. This action was subsequently approved by a majority of the voting stock held by James Carter's father and mother who outvoted him and his wife.

[164] Massachusetts v. Mellon, 262 U.S. 447, 487 (1923). See also Williams v. Riley, 280 U.S. 78 (1929).

[165] Fairchild v. Hughes, 258 U.S. 126 (1922).

[166] Ex parte Levitt, 302 U.S. 633 (1937). See, however, Massachusetts State Grange v. Benton, 272 U.S. 525 (1926), where the Supreme Court, though affirming the dismissal of a suit to enjoin a day-light-saving statute, nonetheless, sustained the jurisdiction of the district court to entertain the suit.

[167] Alabama Power Co. v. Ickes, 302 U.S. 464, 480-481 (1938).

[168] 333 U.S. 203 (1948).

[169] 342 U.S. 429 (1952). See p. 763 (Amendment I).

[170] 6 Wall. 50, 64 (1868). See also State of Mississippi v. Johnson, 4 Wall. 475 (1867).

[171] 6 Wall. at 76.

[172] 262 U.S. 447 (1923).

[173] 42 Stat. 224 (1921).

[174] 262 U.S. 447, 484-485. See also New Jersey v. Sargent, 269 U.S. 328, 338-340 (1926), where the Court refused jurisdiction of a suit to enjoin the federal water power act because of its effect on the conservation of potable waters in New Jersey. A similar situation arose in Arizona v. California, 283 U.S. 423, 450 (1931), where the Court declined to take jurisdiction of an injunction suit to restrain the Secretary of the Interior and the five States of the Colorado River Compact from constructing Boulder Dam.

[175] Georgia v. Pennsylvania R. Co., 324 U.S. 439 (1945).

[176] Missouri v. Holland, 252 U.S. 416 (1920).

[177] Georgia v. Tennessee Copper Co., 206 U.S. 230 (1907).

[178] Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945).

[179] Giles v. Harris, 189 U.S. 475, 486 (1903).

[180] 258 U.S. 158 (1922).

[181] Ibid. 162.

[182] 297 U.S. 288, 324 (1936).

[183] 274 U.S. 488 (1927).

[184] Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324 (1936).

[185] 283 U.S. 423 (1931).

[186] 330 U.S. 75 (1947).

[187] Ibid. 89-91. Justices Black and Douglas wrote separate dissents, but each contended that the controversy was justiciable. Justice Douglas could not agree that the men should violate the act and lose their jobs in order to test their rights.

[188] Ex parte Steele, 162 F. 694, 701 (1908).

[189] Pennsylvania v. Wheeling & Belmont Bridge Co., 13 How. 518 (1852); United States v. Chambers, 291 U.S. 217 (1934); Mills v. Green, 159 U.S. 651 (1895); United States v. Evans, 213 U.S. 297 (1909).

[190] Mills v. Green, 159 U.S. 651 (1895). This case came to the Supreme Court on appeal from a decree of the circuit court of appeals dissolving an injunction restraining certain registration officials from excluding the appellant from the voting list. However, the election in which appellant desired to vote was held prior to the appeal, and the case thereby became moot. See also St. Pierre v. United States, 319 U.S. 41 (1943).

[191] Ibid. 653.

[192] Keim v. United States, 177 U.S. 290, 293 (1900); Georgia v. Stanton, 6 Wall. 50, 71 (1868).

[193] 14 Pet. 497 (1840).

[194] Ibid. 516.

[195] Ibid., and Kendall v. United States ex rel. Stokes, 12 Pet. 524, 621 (1838); see also Marbury v. Madison, 1 Cr. 137 (1803).

[196] Mississippi v. Johnson, 4 Wall. 475 (1867).

[197] Georgia v. Stanton, 6 Wall. 50 (1868).

[198] Ibid.

[199] 4 Wall. 475 (1867).

[200] 12 Pet. 524 (1838).

[201] 1 Cr. 137, 170 (1803).

[202] 7 How. 1 (1849).

[203] Ibid. 41.

[204] Ibid. 42-45.

[205] This classification follows in the main that of Melville Fuller Weston, Political Questions, 38 Harv. L. Rev. 296 (1925).

[206] Field v. Clark, 143 U.S. 649 (1892).

[207] Coleman v. Miller, 307 U.S. 433 (1939).

[208] Foster v. Neilson, 2 Pet. 253 (1829). See p. 472, supra.

[209] Commercial Trust Co. of New Jersey v. Miller, 262 U.S. 51 (1923).

[210] United States v. Anderson, 9 Wall. 56 (1870).

[211] Luther v. Borden, 7 How. 1 (1849); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912).

[212] Luther v. Borden, 7 How. 1 (1849).

[213] McPherson v. Blacker, 146 U.S. 1 (1892), where the Court refused to pass upon the act of the Michigan legislature in 1892 providing for the election of presidential electors by Congressional districts.

[214] South v. Peters, 339 U.S. 276 (1950).

[215] Colegrove v. Green, 328 U.S. 549 (1946).

[216] Massachusetts v. Mellon, 262 U.S. 447 (1923); Georgia v. Stanton, 6 Wall. U.S. 50 (1868); Cherokee Nation v. Georgia, 5 Pet. 1 (1831).

[217] 143 U.S. 649, 670-672 (1892).

[218] Coleman v. Miller, 307 U.S. 433, 450 (1939).

[219] Ibid. 452-453.

[220] 328 U.S. 549 (1946).

[221] 287 U.S. 1 (1932). This case involved an unsuccessful attempt to enjoin an election of representatives in Congress in Mississippi because the districts formed by the legislature for that purpose were not a contiguous and compact territory and of equal population and that the redistricting violated article I, Sec. 4 and the Fourteenth Amendment. The Court held that the provisions of the Reapportionment Act of 1929 did not reenact the requirements of the act of 1911 and that it was therefore unnecessary to determine whether the questions raised were justiciable.

[222] 285 U.S. 355 (1932). Here the Court held that the act of the Minnesota legislature redistricting the State required the governor's signature, and that representatives should be chosen at large until a redistricting was passed.

[223] 328 U.S. 549, 565-566.

[224] Ibid. 566 ff.

[225] 335 U.S. 281 (1948).

[226] 335 U.S. 160 (1948).

[227] 339 U.S. 276 (1950).

[228] Charles Warren, The Supreme Court in United States History, I, (Boston, 1922), 110-111. For the full correspondence see 3 Correspondence and Public Papers of John Jay (1890-1893), (edited by Henry Phelps Johnston), 486. According to E.F. Albertsworth, Advisory Functions in Federal Supreme Court, 23 Georgetown L.J., 643, 644-647 (May 1935), the Court rendered an advisory opinion to President Monroe in response to a request for legal advice on the power of the Government to appropriate federal funds for public improvements by responding that Congress might do so under the war and postal powers. The inhibitions of the Court against advisory opinions do not prevent the individual Justices from giving advice or aiding the political departments in their private capacities. Ever since Chief Justice Jay went on a mission to England to negotiate a treaty the members of the Court have performed various nonjudicial functions. John Marshall served simultaneously as Secretary of State and Chief Justice, and later Justice Robert Jackson served as war crimes prosecutor.

[229] For example, Muskrat v. United States, 219 U.S. 346, 354 (1911); Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 113 (1948); United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947).

[230] Chicago & Southern Airlines v. Waterman Steamship Corp., 333 U.S. 103, 113-114 (1948), citing Hayburn's Case, 2 Dall. 409 (1792); United States v. Ferreira, 13 How. 40 (1852); Gordon v. United States, 117 U.S. 697 (1864); In re Sanborn, 148 U.S. 222 (1893); Interstate Commerce Commission v. Brimson, 154 U.S. 447 (1894); La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899); Muskrat v. United States, 219 U.S. 346 (1911); United States v. Jefferson Electric Co., 291 U.S. 386 (1934).

[231] Muskrat v. United States, 219 U.S. 346 (1911).

[232] United States v. Ferreira, 13 How. 40 (1852).

[233] United Public Workers of America v. Mitchell, 330 U.S. 75, 89 (1947). Here, Justice Reed, for the Court, after asserting that constitutional courts do not render advisory opinions, declared that "'concrete legal issues, presented in actual cases, not abstractions,' are requisite" for the adjudication of constitutional issues, citing Electric Bond and Share Co. v. Securities & Exchange Commission, 303 U.S. 419, 443 (1938); United States v. Appalachian Electric Power Co., 311 U.S. 377, 423 (1940); Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945); and Coffman v. Breeze Corporations, 323 U.S. 316, 324 (1945).

[234] 13 How. 40 (1852).

[235] 117 U.S. 697 (1864).

[236] 273 U.S. 70 (1927). In Willing v. Chicago Auditorium Association, 277 U.S. 274 (1928) certain lessees desired to ascertain their rights under a lease to demolish a building after the lessors had failed to admit such rights on the allegation that claims, fears, and uncertainties respecting the rights of the parties greatly impaired the value of the leasehold. Because there was no showing that the lessors had hampered the full use of the premises or had committed or threatened a hostile act, the Supreme Court sustained the decree of the lower Court dismissing the bill on the ground that the plaintiff was seeking a mere declaratory judgment. The Court admitted that the proceeding was not moot, that there were adverse parties with substantial interests, and that a final judgment could have been rendered, but held, nonetheless, that the proceeding was not a case or controversy merely because plaintiffs were thwarted by its own doubts, or by the fears of others. Ibid. 289-290.

[237] 219 U.S. 346 (1911).

[238] 274 U.S. 123 (1927).

[239] 288 U.S. 249, 264 (1933).

[240] 300 U.S. 227, 240 (1937).

[241] 28 U.S.C.A. Sec. 2201, 2202; 48 Stat. 955.

[242] 300 U.S. 227, 240-241 (1937). The Court distinguished between a justiciable controversy and a dispute of an abstract character, emphasized that the controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests, and reiterated the necessity of "a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts."

[243] Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 324-325 (1936).

[244] 303 U.S. 419, 443 (1938).

[245] Alabama State Federation of Labor v. McAdory, 325 U.S. 450, 461 (1945), citing Nashville, C. & St. L.R. Co. v. Wallace, 288 U.S. 249 (1933); Aetna Life Insurance Co. v. Haworth, 300 U.S. 227 (1937); Maryland Casualty Co. v. Pacific Co., 312 U.S. 270, 273 (1941); Great Lakes Co. v. Huffman, 319 U.S. 293, 299, 300 (1943); and Coffman v. Breeze Corporation, 323 U.S. 316 (1945). Here, as in other cases, the Court refused to entertain hypothetical, or contingent questions, and the decision of constitutional issues prematurely. For this same rule see also, Altvater v. Freeman, 319 U.S. 359, 363 (1943).

[246] 306 U.S. 1 (1939).

[247] 307 U.S. 325 (1939).

[248] 312 U.S. 270 (1941).

[249] 300 U.S. 227 (1937).

[250] Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273, (1941).

[251] Brillhart v. Excess Insurance Co., 316 U.S. 491 (1942). This was a diversity of citizenship case which presented only local questions.

[252] Cohens v. Virginia, 6 Wheat. 264, 378 (1821).

[253] Stat. 73, 85-86.

[254] 1 Wheat. 304 (1816).

[255] 6 Wheat. 264 (1821).

[256] Ibid. 379.

[257] Ibid. 422-423. In Martin v. Hunter's Lessee, 1 Wheat. 304 (1816), Justice Story had traversed some of these same grounds. He, too, began with the general assumptions that the Constitution was established by the people of the United States and not by the States in their sovereign capacities, that the Constitution is to be construed liberally, and that the National Government is supreme in relation to its objects; and had concluded that the Supreme Court had authority to review State court decisions under the express provisions of articles III and VI, and also from the necessity that final decision must rest somewhere and from the importance and necessity of uniformity of decisions interpreting the Constitution. Many years later in Ableman v. Booth, 21 How. 506, 514-523 (1859), where the Wisconsin Supreme Court, like the Virginia Courts earlier, had declared an act of Congress invalid and disregarded a writ of error from the Supreme Court, Chief Justice Taney on grounds both of dual sovereignty and national supremacy was even more emphatic in his rebuke of State pretensions. His emphasis on the indispensability of the federal judicial power to maintain national supremacy, to protect the States from national encroachments, and to make the Constitution and laws of the United States uniform all combine to enhance the federal judicial power to a degree beyond that envisaged even by Marshall and Story. As late as 1880 the questions presented in the foregoing cases were before the Court in Williams v. Bruffy, 102 U.S. 248 (1880), which again involved the refusal of a Virginia court to enforce a mandate of the Supreme Court. By the act of December 23, 1914, 38 Stat. 790, the 25th section of the Judiciary Act of 1789 which was carried over with modifications into the Revised Statutes, Sec. 690; 28 U.S.C. Sec. 344 was amended so as to provide for review of State court decisions on certiorari whether the federal claim is sustained or denied. These provisions are now contained in 28 U.S.C.A. 1257 (1948).

The first case involving invalid State legislation arose under a treaty of the United States. Ware v. Hylton, 3 Dall. 199 (1797). In Calder v. Bull, 3 Dall. 386 (1798), the Court sustained a State statute as not being an ex post facto law. The first case in which a State statute was held invalid as a violation of the Constitution was Fletcher v. Peck, 6 Cr. 87 (1810), which came to the Supreme Court by appeal from a United States circuit court and not by a writ of error under section 25. Famous cases coming to the Court under section 25 were Sturges v. Crowninshield, 4 Wheat. 122, McCulloch v. Maryland, 4 Wheat. 316, and Dartmouth College v. Woodward, 4 Wheat. 518. All three were decided in 1819 and the State legislation involved in each was held void.

[258] That the great majority of the most influential members of the Convention of 1787 thought the Constitution secured to courts in the United States the right to pass on the validity of acts of Congress under it cannot be reasonably doubted. Confining ourselves simply to the available evidence that is strictly contemporaneous with the framing and ratifying of the Constitution, we find the following members of the Convention that framed the Constitution definitely asserting that this would be the case: Gerry and King of Massachusetts, Wilson and Gouverneur Morris of Pennsylvania, Martin of Maryland, Randolph, Madison, and Mason of Virginia, Dickinson of Delaware, Yates and Hamilton of New York, Rutledge and Charles Pinckney of South Carolina, Davie and Williamson of North Carolina, Sherman and Ellsworth of Connecticut. See Max Farrand, Records of the Federal Convention (Yale Univ. Press, 1913); I, 97 (Gerry), 109 (King); II, 73 (Wilson), 76 (Martin), 78 (Mason), 299 (Dickinson and Morris), 428 (Rutledge), 248 (Pinckney), 376 (Williamson), 28 (Sherman), 93 (Madison); III, 220 (Martin, in "Genuine Information"). The Federalist: Nos. 39 and 44 (Madison), Nos. 78 and 81 (Hamilton). Elliot's Debates (ed. of 1836), II, 1898-1899 (Ellsworth), 417 and 454 (Wilson), 336-337 (Hamilton); III, 197, 208, 431 (Randolph), 441 (Mason), 484-485 (Madison); IV, 165 (Davie). P.L. Ford, Pamphlets on the Constitution, 184 (Dickinson, in "Letters of Fabius"). Ford, Essays on the Constitution, 295 (Robert Yates, writing as "Brutus"). True these are only seventeen names out of a possible fifty-five, but they designate fully three-fourths of the leaders of the Convention, four of the five members of the Committee of Detail which drafted the Constitution (Gorham, Rutledge, Randolph, Ellsworth, and Wilson) and four of the five members of the Committee of Style which gave the Constitution final form (Johnson, Hamilton, Gouverneur Morris, Madison, and King). Against them are to be pitted, in reference to the question under discussion, only Mercer of Maryland, Bedford of Delaware, and Spaight of North Carolina, the record in each of whose cases is of doubtful implication.

It should be noted, however, that there was later some backsliding. Madison's record is characteristically erratic. His statement in The Federalist No. 39 written probably early in 1788, is very positive: The tribunal which is to ultimately decide, in controversies relating to the boundary between the two jurisdictions, is to be established under the general government. Yet a few months later (probably October, 1788) he seemed to repudiate judicial review altogether, writing: "In the State Constitutions and indeed in the Federal one also, no provision is made for the case of a disagreement in expounding them; and as the Courts are generally the last in making the decision, it results to them by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary Department paramount in fact to the Legislature, which was never intended and can never be proper." 5 Writings (Hunt ed.), 294. Yet in June, 1789, we find him arguing as follows in support of the proposals to amend the Constitution which led to the Bill of Rights: "If they are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislature or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights." Ibid. 385. Nine years later as author of the Virginia Resolutions of 1798, he committed himself to the proposition that the final power in construing the Constitution rested with the respective State legislatures, a position from the logical consequences of which he spent no little effort to disengage himself in the years of his retirement. Another recidivist was Charles Pinckney, who in 1799 denounced the idea of judicial review as follows: "On no subject am I more convinced, than that it is an unsafe and dangerous doctrine in a republic, ever to suppose that a judge ought to possess the right of questioning or deciding upon the constitutionality of treaties, laws, or any act of the legislature. It is placing the opinion of an individual, or of two or three, above that of both branches of Congress, a doctrine which is not warranted by the Constitution, and will not, I hope, long have many advocates in this country." Wharton, State Trials, 412. The great debate in Congress in the first session of the 7th Congress over the repeal of the Judiciary Act of 1801 speedily developed into a debate over whether judicial review of acts of Congress was contemplated by the Constitution. In the Senate Breckenridge of Kentucky, author of the Kentucky Resolutions of 1799, contended for the equal right of the three departments to construe the Constitution for themselves within their respective spheres, and from it deduced the exclusive right of the legislature to interpret the Constitution in what regards the lawmaking power and the obligation of the judges to execute what laws they make. But the feeble disguise which this doctrine affords legislative sovereignty made it little attractive even to Republicans, who for the most part either plainly indicated their adherence to the juristic view of the Constitution, or following a hint by Giles of Virginia, kept silent on the subject. The Federalists on the other hand were unanimous on the main question, though of divergent opinions as to the grounds on which judicial review was to be legally based, some grounding it on the "arising" and "pursuant" clauses, some on the precedents of the Pension and Carriage cases, some on the nature of the Constitution and of the judicial office, some on the contemporary use of terms and the undisputed practice under the Constitution of all constitutional authorities. Moreover, said The Federalist orators, judicial review was expedient, since the judiciary had control of neither the purse nor the sword; it was the substitute offered by political wisdom for the destructive right of revolution; to have established this principle of constitutional security, a novelty in the history of nations, was the peculiar glory of the American people; the contrary doctrine was monstrous and unheard of. The year following Marshall concluded the debate, and rendered decision, in Marbury v. Madison. See Edward S. Corwin, The Doctrine of Judicial Review (Princeton University Press. 1914), 49-59; and Court Over Constitution (1938), Chap. 1. "The glory and ornament of our system which distinguishes it from every other government on the face of the earth is that there is a great and mighty power hovering over the Constitution of the land to which has been delegated the awful responsibility of restraining all the coordinate departments of government within the walls of the governmental fabric which our fathers built for our protection and immunity."--Chief Justice Edward Douglass White when Senator from Louisiana. Cong. Record, 52d Cong., 2d sess., p. 6516 (1894). "I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States." Oliver Wendell Holmes, Collected Legal Papers (New York, 1920), 295-296.

[259] The Federalist No. 78.

[260] 3 Dall. 386, 399 (1798).

[261] 2 Dall. 409 (1792).

[262] 1 Stat. 243 (1792).

[263] 3 Dall. 171 (1796).

[264] 1 Cr. 137 (1803).

[265] 1 Stat. 73, 81.

[266] Cr. 137, 175-180.

[267] Ibid. 180. The opinion in Marbury v. Madison is subject to two valid criticisms. In the first place the construction of the 13th Section of the Judiciary Act, if not erroneous, was unnecessary since the section could have been interpreted, as it afterward was, merely to give the Court the power to issue mandamus and other writs when it had jurisdiction but not for the purpose of acquiring jurisdiction. The exclusive interpretation of the Court's original jurisdiction, sometimes made a subject of criticism, had been adopted by the Court in Wiscart v. Dauchy, 3 Dall. 321 (1796), and while couched in terms which had later to be qualified in Cohens v. Virginia, 6 Wheat. 264, 398-402 (1821), by Marshall himself, has remained the doctrine of the Court. Secondly, there was good ground for Jefferson's criticism, which did not touch the constitutional features of the decision, but did inveigh against the temerity of the Court in passing on the merits of a case of which, by its own admission, it had no jurisdiction.

[268] In this connection Justice Patterson's jury charge in Van Horne's Lessee v. Dorrance, 2 Dall. 304, 308 (1795), is of significance for its discussion of the relation of the Constitution, the legislature and the courts. A constitution, he said, "is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the Legislature, and can be revoked or altered only by the authority that made it." Legislatures are the creatures of the Constitution to which they owe their existence and powers, and in case of conflict between a legislative act and the Constitution it is the duty of the courts to hold it void. In accordance with these doctrines fortified by natural law concepts, the circuit court invalidated a Pennsylvania statute as being in conflict with the federal and State Constitutions as a violation of the inalienable rights of property. In 1799 the federal circuit court in North Carolina, over which Chief Justice Marshall presided, invalidated an act of North Carolina as a violation of the contract clause and the separation of powers in Ogden v. Witherspoon, 18 Fed. Cas. No. 10,461 (1802). The reliance on general principles and natural rights continued in Fletcher v. Peck, 6 Cr. 87, 139 (1810) where the Supreme Court invalidated an act of the Georgia legislature revoking an earlier land grant as a violation either of the "general principles which are common to our free institutions," or of the contract clause.

[269] This phase of judicial review is described by Justice Sutherland as follows: "From the authority to ascertain and determine the law in a given case, there necessarily results, in case of conflict, the duty to declare and enforce the rule of the supreme law and reject that of an inferior act of legislation which, transcending the Constitution, is of no effect and binding on no one. This is not the exercise of a substantive power to review and nullify acts of Congress, for no such substantive power exists. It is simply a necessary concomitant of the power to hear and dispose of a case or controversy properly before the court, to the determination of which must be brought the test and measure of the law." Adkins v. Children's Hospital, 261 U.S. 525, 544 (1923). In United States v. Butler, 297 U.S. 1, 62 (1936), Justice Roberts for the Court reduced judicial review to very simple terms when he declared that when an act is challenged as being unconstitutional, "the judicial branch of the Government has only one duty,--to lay the article of the Constitution which is invoked beside the statute which is challenged and to decide whether the latter squares with the former."

[270] Note, for example, the following statement of Chief Justice Marshall: "Judicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing." Osborn v. Bank of United States, 9 Wheat. 738, 866 (1824). Note also the assertion of Justice Roberts: "All the court does, can do, is to announce its considered judgment upon the question. The only power it has, if such it may be called, is the power of judgment. This court neither approves nor condemns any legislative policy. Its delicate and difficult office is to ascertain and declare whether the legislation is in accordance with, or in contravention of, the Constitution; and, having done that, its duty ends." United States v. Butler, 297 U.S. 1, 62-63 (1936).

[271] Chicago & Grand Trunk R. Co. v. Wellman, 143 U.S. 339, 345 (1892).

[272] Ibid. See also Muskrat v. United States, 219 U.S. 346 (1911); Massachusetts v. Mellon, 262 U.S. 447 (1923); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945); United Public Workers of America v. Mitchell, 330 U.S. 75 (1947); Fleming v. Rhodes, 331 U.S. 100, 104 (1947)

[273] Rescue Army v. Municipal Court of Los Angeles, 331 U.S. 549, 568-575 (1947). See also Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129 (1946); Spector Motor Service v. McLaughlin, 323 U.S. 101, 105 (1944); Coffman v. Breeze Corporations, 323 U.S. 316, 324-325 (1945); Carter v. Carter Coal Co., 298 U.S. 238, 325 (1936); Siler v. L. & N.R. Co., 213 U.S. 175, 191 (1909); Berea College v. Kentucky, 211 U.S. 45, 53 (1908); and the cases cited in the notes to the preceding paragraph. [Transcriber's Note: Reference is to Footnote 272, above.]

[274] 331 U.S. 549, 571 (1947).

[275] See pp. 546-548. For the distinction between inherent and precautionary limitations to the exercise of judicial review and the operation of judicial review within them, see Edward S. Corwin, Judicial Review in Action, 74 Univ. of Pennsylvania L. Rev. 639 (1926). For the limitations generally see also the concurring opinion of Justice Brandeis in Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 346-356 (1936), and the cases cited therein.

[276] One of the earliest formulations of this rule is that by Justice Iredell in Calder v. Bull, 3 Dall. 386, 399 (1798), and by Justice Chase in the same case, p. 394. On the other hand Justice Chase in this same case asserted that there were certain powers which "it cannot be presumed" have been entrusted to the legislature. See also Sinking-Fund Cases, 99 U.S. 700 (1879).

[277] Ogden v. Saunders, 12 Wheat. 213 (1827); Providence Bank v. Billings, 4 Pet. 514, 549 (1830) (argument of counsel); Legal Tender Cases, 12 Wall. 457 (1871); Madden v. Kentucky, 309 U.S. 83 (1940); Alabama State Federation of Labor v. McAdory, 325 U.S. 450 (1945). See also Justice Moody's dissenting opinion in Howard v. Illinois C.R. Co. (The Employers' Liability Cases), 207 U.S. 463, 509-511 (1908).

[278] Adkins v. Children's Hospital, 261 U.S. 525 (1923). "But freedom of contract is, nevertheless, the general rule and restraint the exception; and the exercise of legislative authority to abridge it can be justified only by the existence of exceptional circumstances." Ibid. 546.

[279] Kovacs v. Cooper, 336 U.S. 77, 88 (1949) opinion of Justice Reed. See Justice Frankfurter's concurring opinion for a criticism of this rule. For other cases imputing to freedom of religion and the press a preferred position so as to reverse the presumption of validity see Herndon v. Lowry, 301 U.S. 242, 258 (1937); United States v. Carolene Products Co., 304 U.S. 144, 152, n. 4 (1938); Thornhill v. Alabama, 310 U.S. 88, 95 (1940); Schneider v. State, 308 U.S. 147, 161 (1939); Bridges v. California, 314 U.S. 252, 262-263 (1941); Murdock v. Pennsylvania, 319 U.S. 105, 115 (1943); Prince v. Massachusetts, 321 U.S. 158, 164 (1944); Follett v. McCormick, 321 U.S. 573, 575 (1944); Marsh v. Alabama, 326 U.S. 501 (1946); Board of Education v. Barnette, 319 U.S. 624, 639 (1943); Thomas v. Collins, 323 U.S. 516, 530 (1945); Saia v. New York, 334 U.S. 558, 562 (1948). Justice Frankfurter has criticized the concept of "the preferred position" of these rights as a phrase that has "uncritically crept into some recent opinions" of the Court, Kovacs v. Cooper, 336 U.S. 77, 90 (1949); and Justice Jackson in a dissent has also opposed the idea that some constitutional rights have a preferred position. Brinegar v. United States, 338 U.S. 160, 180 (1949). "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position; * * *"

[280] Watson v. Buck, 313 U.S. 387 (1941); Justice Iredell's opinion in Calder v. Bull, 3 Dall. 386 (1798); Jacobson v. Massachusetts, 197 U.S. 11 (1905). See also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949); Daniel v. Family Security Life Ins. Co., 336 U.S. 220 (1949); Railway Express Agency v. New York, 336 U.S. 106 (1949); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Petrillo, 332 U.S. 1 (1947); American Power & Light Co. v. Securities & Exchange Commission, 329 U.S. 90 (1946); Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940). See also Railroad Retirement Board v. Alton R. Co., 295 U.S. 330 (1935); Home Bldg. & Loan Assoc. v. Blaisdell, 290 U.S. 398 (1934); Arizona v. California, 283 U.S. 423 (1931); McCray v. United States, 195 U.S. 27 (1904); Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146 (1919). Compare, however, Bailey v. Drexel Furniture Co. (Child Labor Tax Case), 259 U.S. 20 (1922), where the Court considered the motives of the legislation.

[281] 198 U.S. 45 (1905).

[282] 297 U.S. 1 (1936). The majority opinion evoked a protest from Justice Stone who said in dissenting: "The power of courts to declare ... [an act of Congress unconstitutional] is subject to two guiding principles of decision which ought never to be absent from judicial consciousness. One is that courts are concerned only with the power to enact statutes, not with their wisdom. The other is that while unconstitutional exercise of power by the executive and legislative branches of the government is subject to judicial restraint, the only check upon our own exercise of power is our own sense of self-restraint. For the removal of unwise laws from the statute books appeal lies not to the courts but to the ballot and to the processes of democratic government." Ibid. 78-79.

[283] United States v. Congress of Industrial Organizations, 335 U.S. 106 (1948); Miller v. United States, 11 Wall. 268 (1871).

[284] See, for example, Michaelson v. United States, 266 U.S. 42 (1924), where the Court narrowly construed those sections of the Clayton Act regulating the power of courts to punish contempt in order to avoid constitutional difficulties. See also United States v. Delaware & H.R. Co., 213 U.S. 366 (1909), where the Hepburn Act was narrowly construed. Judicial disallowance in the guise of statutory interpretation was foreseen by Hamilton, see Federalist No. 81.

[285] Pollock v. Farmers' L. & T. Co., 158 U.S. 429, 601, 635 (1895).

[286] In the first Guffey-Snyder (Bituminous Coal) Act of 1935 (49 Stat. 991), there was a section providing for separability of provisions, but the Court none the less held the price-fixing provisions inseparable from the labor provisions which it found void and thereby invalidated the whole statute. Carter v. Carter Coal Co., 298 U.S. 238, 312-316 (1936). On this point see also the dissent of Chief Justice Hughes. Ibid. 321-324.

[287] 157 U.S. 429, 574-579 (1895).

[288] Justice Brandeis dissenting in Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932) states the rules governing the binding force of precedents and collects the decisions overruling earlier decisions to 1932. In Helvering v. Griffiths, 318 U.S. 371, 401 (1948), Justice Jackson lists other cases overruled between 1932 and 1943. Cf. Smith v. Allwright, 321 U.S. 649 (1944) for similar list.

[289] 321 U.S. 649, 665 (1944).

[290] 295 U.S. 45 (1935).

[291] 321 U.S. 649, 669. Justice Roberts in a dissent, in which Justice Frankfurter joined, also protested against overruling "earlier considered opinions" in Mahnich v. Southern S.S. Co., 321 U.S. 96, 112-113 (1944). More recently in United States v. Rabinowitz, 339 U.S. 56 (1950), Justice Frankfurter has protested in a dissent against reversals of earlier decisions immediately following changes of the court's membership. "Especially ought the Court not reenforce needlessly the instabilities of our day by giving fair ground for the belief that Law is the expression of chance--for instance, of unexpected changes in the Court's composition and the contingencies in the choice of successors." Ibid. 80.

[292] See Corwin, Judicial Review in Action, 74 University of Pennsylvania Law Review 639 (1926).

[293] Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933), citing Mosher v. Phoenix, 287 U.S. 29, 30 (1932).

[294] Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105 (1933). See also Binderup v. Pathe Exchange, 263 U.S. 291, 305-308 (1923); South Covington & C. St. Ry. Co. v. Newport, 259 U.S. 97, 99 (1922); Hull v. Burr, 234 U.S. 712, 720 (1914); The Fair v. Kohler Die Co., 228 U.S. 22, 25 (1913); Montana Catholic Missions v. Missoula County, 200 U.S. 118, 130 (1906); Western Union Tel. Co. v. Ann Arbor R. Co., 178 U.S. 239 (1900).

[295] Newburyport Water Co. v. Newburyport, 193 U.S. 561, 576 (1904). For these issues, see also Bell v. Hood, 327 U.S. 678 (1946).

[296] Levering & Garrigues Co. v. Morrin, 289 U.S. 103, 105-106 (1933).

[297] 299 U.S. 109, 112-113 (1936).

[298] Whether the doctrine that the plaintiff must allege the constitutional question to make the case one arising under the Constitution rests on constitutional or statutory grounds is uncertain. See Tennessee v. Union and Planters' Bank, 152 U.S. 454 (1894); Oregon Short Line and Utah N. Ry. Co. v. Skottowe, 162 U.S. 490, 492 (1896); Galveston, H. & S.A. Ry. Co. v. Texas, 170 U.S. 226, 236 (1898); Sawyer v. Kochersperger, 170 U.S. 303 (1898); Board of Councilmen of Frankfort v. State National Bank, 184 U.S. 696 (1902); Boston and Montana Consolidated Copper & Silver Mining Co. v. Montana Ore Purchasing Co., 188 U.S. 632, 639 (1903). Some of these cases apply to the removal of cases from State courts where the plaintiff does not aver a federal question. On this point note the following statement of Chief Justice Fuller in Arkansas v. Kansas & T.C. Co. & S.F.R., 183 U.S. 185, 188 (1901): "Hence it has been settled that a case cannot be removed from a State court into the Circuit Court of the United States on the sole ground that it is one arising under the Constitution, laws or treaties of the United States, unless that appears by plaintiff's statement of his own claim; and if it does not so appear, the want of it cannot be supplied by any statement of the petition for removal or in the subsequent pleadings. And moreover that jurisdiction is not conferred by allegations that defendant intends to assert a defence based on the Constitution or a law or treaty of the United States, or under statutes of the United States, or of a State, in conflict with the Constitution."

[299] 5 Cr. 61 (1809).

[300] 9 Wheat. 738 (1824).

[301] 115 U.S. 1 (1885).

[302] 22 Stat. 162, Sec. 4 (1882).

[303] 38 Stat. 803, Sec. 5 (1915).

[304] 43 Stat. 936, 941 (1925); 28 U.S.C.A. Sec. 1349.

[305] 3 Stat. 195, 198 (1815).

[306] 4 Stat. 632, 633, Sec. 3 (1833).

[307] 12 Stat. 755, 756, Sec. 5 (1863).

[308] 28 U.S.C.A. Sec. 1442 (a) (1).

[309] 100 U.S. 257 (1880).

[310] 1 Wheat. 304 (1816).

[311] 6 Wheat. 264 (1821).

[312] 100 U.S. 257, 264. See also The Mayor of Nashville v. Cooper, 6 Wall. 247 (1868).

[313] Lovell v. City of Griffin, 303 U.S. 444 (1938).

[314] Stoll v. Gottlieb, 305 U.S. 165 (1938).

[315] Indiana ex rel. Anderson v. Brand, 303 U.S. 95 (1938).

[316] Southwestern Bell Telephone Co. v. Oklahoma, 303 U.S. 206 (1938).

[317] Adam v. Saenger, 303 U.S. 59, 164 (1938).

[318] United Gas Public Service Co. v. Texas, 303 U.S. 123, 143 (1938).

[319] 279 U.S. 159 (1929).

[320] Lane v. Wilson, 307 U.S. 268, 274 (1939). It is fairly obvious, of course, that whether State courts have exceeded their powers under the State Constitution is not a federal question. This rule was applied in Schuylkill Trust Co. v. Pennsylvania, 302 U.S. 506, 512 (1938), where it was contended that instead of construing a State statute, the courts had actually amended it by a species of judicial legislation prohibited by the State constitution.

[321] United States v. Ravara, 2 Dall. 297 (1793).

[322] Boers v. Preston, 111 U.S. 252 (1884).

[323] Ames v. Kansas ex rel. Johnston, 111 U.S. 449, 469 (1884).

[324] 280 U.S. 379, 383-384 (1930).

[325] 11 Wheat. 467 (1826).

[326] 135 U.S. 403, 432 (1890).

[327] Ex parte Gruber, 269 U.S. 302 (1925).

[328] 1 Stat. 73 (1789).

[329] See W.W. Willoughby, The Constitutional Law of the United States, III, 1339, 1347 (New York, 1929).

[330] Willoughby, op. cit., III, 1339.

[331] 1 Stat. 73, Sec. 9 (1789).

[332] Justice Washington in Davis v. Brig Seneca, 21 Fed. Cas. No. 12,670 (1829).

[333] The "Vengeance," 3 Dall. 297 (1796); The "Schooner Sally," 2 Cr. 406 (1805); The "Schooner Betsey," 4 Cr. 443 (1808); The "Samuel," 1 Wheat. 9 (1816); The "Octavia," 1 Wheat. 20 (1816).

[334] New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344, 386 (1848).

[335] Waring v. Clarke, 5 How. 441 (1847); Ex parte Easton, 95 U.S. 68 (1877); North Pacific S.S. Co. v. Hall Brothers M.R. & S. Co., 249 U.S. 119 (1919); Grant Smith-Porter Ship Co. v. Rohde, 257 U.S. 469 (1922).

[336] Sheppard v. Taylor, 5 Pet. 675, 710 (1831).

[337] New England M. Ins. Co. v. Dunham, 11 Wall. 1, 31 (1871).

[338] Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900).

[339] Atlee v. Northwestern Union P. Co., 21 Wall. 389 (1875); Ex parte McNiel, 13 Wall. 236 (1872).

[340] O'Brien v. Miller, 168 U.S. 287 (1897); The "Grapeshot" v. Wallerstein, 9 Wall. 129 (1870).

[341] New Bedford Dry Dock Co. v. Purdy, 258 U.S. 95 (1922); North Pac. S.S. Co. v. Hall Bros. M.R. & S. Co., 249 U.S. 119 (1919); The General Smith, 4 Wheat. 438 (1819).

[342] New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344 (1848).

[343] Ex parte Easton, 95 U.S. 68 (1877).

[344] Andrews v. Wall, 3 How. 568 (1845).

[345] Janney v. Columbia Ins. Co., 10 Wheat. 411, 412, 415, 418 (1825), cited by Justice Story in The "Tilton," 23 Fed. Cas. No. 14,054 (1830).

[346] 95 U.S. 68, 72 (1877).

[347] The "Belfast" v. Boon, 7 Wall. 624 (1869).

[348] Ex parte Garnett, 141 U.S. 1 (1891).

[349] The "City of Panama," 101 U.S. 453 (1880); see also Kenward v. "Admiral Peoples," 295 U.S. 649 (1935); The "Harrisburg," 119 U.S. 199 (1886). Although a suit for damages for wrongful death will not lie in the courts of the United States under the general maritime law, admiralty courts will enforce a State law creating liability for wrongful death. Just v. Chambers, 312 U.S. 383 (1941).

[350] The "Raithmoor," 241 U.S. 166 (1916); Erie R. Co. v. Erie & Western T. Co., 204 U.S. 220 (1907). See also Canadian Aviator v. United States, 324 U.S. 215 (1945).

[351] L'Invincible, 1 Wheat. 238 (1816). See also In re Fassett, 142 U.S. 479 (1892).

[352] Sherlock v. Alling, 93 U.S. 99, 104 (1876). See also Old Dominion S.S. Co. v. Gilmore (The "Hamilton"), 207 U.S. 398 (1907).

[353] Jennings v. Carson, 4 Cr. 2 (1807); Taylor v. Carryl, 20 How. 583 (1857).

[354] Thirty Hogsheads of Sugar v. Boyle, 9 Cr. 191 (1815); The Siren, 13 Wall. 389, 393 (1871).

[355] Hudson v. Guestier, 4 Cr. 293 (1808).

[356] La Vengeance, 3 Dall. 297 (1796); Church v. Hubbart, 2 Cr. 187 (1804); The Schooner Sally, 2 Cr. 406 (1805).

[357] The Brig. Ann, 9 Cr. 289 (1815); The Sarah, 8 Wheat. 391 (1823); Maul v. United States, 274 U.S. 501 (1927).

[358] Section 9 of the original Judiciary Act, since carried over in 28 U.S.C.A. Sec. 1333, saves to suitors such a common law remedy.

[359] For example, the Court stated in The "Moses Taylor" v. Hammons, 4 Wall. 411, 431 (1867), that a proceeding in rem as used in the admiralty courts, is not a remedy afforded by the common law and that a proceeding in rem is essentially a proceeding possible only in admiralty.

[360] 318 U.S. 133 (1943). In the course of his opinion for the Court which contains a lengthy historical account of Admiralty jurisdiction in this country, Chief Justice Stone cited Smith v. Maryland, 18 How. 71 (1855), where the Court without discussion sustained the seizure and forfeiture of a vessel in a judgment in rem of a State court for violation of a Maryland fishing law within the navigable waters of the State.

[361] Judiciary Act of 1789, 1 Stat. 73, Sec. 9; La Vengeance, 3 Dall. 297 (1796); United States v. The Schooner Sally, 2 Cr. 406 (1805); United States v. Schooner Betsey and Charlotte, 4 Cr. 443 (1808); Whelan v. United States, 7 Cr. 112 (1812); The Samuel, 1 Wheat. 9 (1816).

[362] Hendry v. Moore, 318 U.S. 133, 141 (1943).

[363] Charles Warren, The Supreme Court in United States History, II, 93-95 (Boston, 1922).

[364] 10 Wheat. 428 (1825).

[365] 5 How. 441 (1847). See also New Jersey Steam Nav. Co. v. Merchants' Bank, 6 How. 344 (1848). Aside from rejecting English rules, Waring v. Clarke did not affect the rule concerning the ebb and flow of the tide, inasmuch as the collision occurred within the ebb and flow of the tide, though within the body of a county. Citing Peyroux v. Howard, 7 Pet. 324 (1833); The "Orleans" v. Phoebus, 11 Pet. 175 (1837); The "Thomas Jefferson," 10 Wheat. 328 (1825); United States v. Coombs, 12 Pet. 72 (1838).

[366] 12 How. 443 (1852).

[367] Soon afterwards in Jackson v. Steamboat Magnolia, 20 How. 296 (1858), the Court rejected what was left of narrow doctrines of the extent of admiralty jurisdiction by holding that a collision on the Alabama river above tidal flow and wholly within the State of Alabama came within the grant of admiralty jurisdiction in the Judiciary Act of 1789 which extended it "to rivers navigable from the sea * * * as well as upon the high seas."

[368] See Warren, II, 512-513.

[369] 109 U.S. 629 (1884); see also Perry v. Haines, 191 U.S. 17 (1903) where the admiralty jurisdiction was extended to inland canals.

[370] 10 Wall. 557 (1871).

[371] Ibid. 563. See also The Montello, 20 Wall. 430 (1874), where this doctrine was applied to the Fox River in Wisconsin after it had been improved to become navigable.

[372] 141 U.S. 1, 12-15 (1891). This case contains a good review of admiralty cases to the time of its decision.

[373] 311 U.S. 377, 407-410 (1940).

[374] 316 U.S. 31, 41 (1942).

[375] 3 Wheat. 336 (1818). See also Manchester v. Massachusetts, 139 U.S. 240 (1891) which followed this rule and which seems to contain a rule analogous to the "silence of Congress" doctrine applied in cases involving State legislation which affect interstate commerce.

[376] Ibid. 389.

[377] The St. Lawrence, 1 Bl. 522, 527 (1862).

[378] The "Lottawanna," 21 Wall. 558, 576, (1875); see also Janney v. Columbian Ins. Co., 10 Wheat. 411, 418 (1825), where it was held that the admiralty jurisdiction rests on the grant in the Constitution and can only be exercised under the laws of the United States extending that grant to the respective courts of the United States.

[379] 4 Wall. 411, 431, (1867); The Hine v. Trevor, 4 Wall. 555 (1867).

[380] Knapp, Stout & Co. v. McCaffrey, 177 U.S. 638 (1900); Red Cross Line v. Atlantic Fruit Co., 264 U.S. 109 (1924).

[381] Chelentis v. Luckenbach S.S. Co., 247 U.S. 372 (1918).

[382] Rodd v. Heartt, 21 Wall. 558 (1875).

[383] Old Dominion S.S. Co. v. Gilmore, 207 U.S. 398 (1907).

[384] Ibid.

[385] 312 U.S. 383 (1941).

[386] 244 U.S. 205 (1917).

[387] Ibid. 202, 215-218. This was a five to four decision with Justices Holmes, Pitney, Brandeis, and Clarke dissenting. Justice Holmes' dissent is notable among other reasons for his epigrams that "Judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions," ibid. 221; and that "the common law is not a brooding omnipresence in the sky but the articulate voice of some sovereign or some quasi-sovereign that can be identified." Ibid. 222. Justice Pitney attacked the decision as unsupported by precedent and contended that article III speaks only of jurisdiction and does not prescribe the procedural or substantive law by which the exercise of admiralty jurisdiction is to be governed. Ibid. 225-229.

[388] 40 Stat. 395 (1917).

[389] 253 U.S. 149 (1920).

[390] Ibid. 160. For the discussion of the statute as an invalid delegation of power, see ibid. 163-166. Justice Holmes wrote a dissent in which Justices Pitney, Brandeis and Clarke concurred.

[391] 42 Stat. 634 (1922); overturned in Washington v. W.C. Dawson & Co., 264 U.S. 219 (1924).

[392] 44 Stat. 1424.

[393] Nogueira v. New York, N.H. & H.R. Co., 281 U.S. 128 (1930); Vancouver S.S. Co. v. Rice, 288 U.S. 445 (1933).

[394] 244 U.S. 205, 216.

[395] 317 U.S. 249 (1942).

[396] Ibid. 252.

[397] Ibid. 253. Citing Baizley Iron Works v. Span, 281 U.S. 222, 230 (1930).

[398] 317 U.S. 249 (1942). Cases cited as strengthening the claim were Sultan Ry. & Timber Co. v. Dept. of Labor, 277 U.S. 135 (1928); Grant Smith-Porter Co. v. Rohde, 257 U.S. 469 (1922); Millers' Underwriters v. Braud, 270 U.S. 59 (1926); Ex parte Rosengrant, 213 Ala. 202 (104 So. 409), affirmed 273 U.S. 664 (1927); State Industrial Board of New York v. Terry & Tench Co., 273 U.S. 639 (1926); Alaska Packers Asso. v. Industrial Accident Commission, 276 U.S. 467 (1928). Cases cited against the claim were Baizley Iron Works v. Span, 281 U.S. 222 (1930); Gonsalves v. Morse Dry Dock Co., 266 U.S. 171 (1924); Nogueira v. N.Y., N.H. & H.R. Co., 281 U.S. 128 (1930); Northern Coal & Dock Co. v. Strand, 278 U.S. 142 (1928); Employers' Liability Assurance Co. v. Cook, 281 U.S. 233 (1930). Justice Black also cites Stanley Morrison, Workmen's Compensation and the Maritime Law, 38 Yale L.J. 472 (1929). In the Davis case the Court was not guilty of exaggeration when it declared that "the very closeness of the cases cited * * * has caused much serious confusion," and went on to picture rather vividly the jurisdictional dilemma of an injured employee who might suffer great financial loss as a result of the delay and expense if he guessed wrong, and might even discover that his claim was "barred by the statute of limitations in the proper forum while he was erroneously pursuing it elsewhere." 317 U.S. 249, 254. Likewise the dilemma affected employers who might not be protected by contributions to a State fund and at the same time be liable for substantial additional payments. The Court had harsh words for the Jensen rule but indicated that its reversal would not solve the problem. Ibid. 256. Justice Black also pointed to Parker v. Motor Boat Sales, 314 U.S. 244 (1941), where the Court, after stating that Congress by the Longshoremen's Act accepted the Jensen line of demarcation between State and federal jurisdiction, had proceeded to hold that, in shadowy cases where the claimant was in a twilight zone he was entitled to recover under the State statute in the absence of federal administrative action under the Longshoremen's Act on the ground of its constitutionality. In brief it would seem that in shadowy cases a claimant may elect either a federal court applying the Longshoremen's Act or a State forum applying the State compensation law.

[399] 317 U.S. 219, 259.

[400] 21 Wall. 558 (1875).

[401] Ibid. 572.

[402] Ibid. 574-575.

[403] The "Lottawanna," 21 Wall. 558, 577.

[404] In re Garnett, 141 U.S. 1, 12 (1891).

[405] Ibid. 14.

[406] 244 U.S. 205, 215 (1917), citing Butler v. Boston & Savannah S.S. Co., 130 U.S. 527 (1889), and In re Garnett, 141 U.S. 1 (1891).

[407] 253 U.S. 149, 160 (1920).

[408] 328 U.S. 1, 5 (1946), citing O'Donnell v. Great Lakes Dredge & Dock Co., 318 U.S. 36, 40 (1943), and the cases cited therein.

[409] Davis v. Department of Labor, 317 U.S. 249 (1942).

[410] 2 Commentaries (2d ed., Boston, 1851), Sec. 1674.

[411] Dugan v. United States, 3 Wheat. 172 (1818).

[412] United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); United States v. Beebe, 127 U.S. 338 (1888); United States v. American Bell Tel. Co., 128 U.S. 315 (1888).

[413] United States v. San Jacinto Tin Co., 125 U.S. 273 (1888).

[414] 28 U.S.C.A. Sec. 1331-1332. The original jurisdiction of the Supreme Court does not extend to suits brought by the United States against persons or corporations alone. See also Revised Statutes, Sec. 565, 629. United States v. West Virginia, 295 U.S. 463 (1935).

[415] 136 U.S. 211 (1890).

[416] United States v. Texas, 143 U.S. 621 (1892).

[417] Ibid. 642-646. This suit, it may be noted, was specifically authorized by the act of Congress of May 2, 1890, providing for a temporary government for the Oklahoma territory to determine the ownership of Greer County. 26 Stat. 81, 92, Sec. 25.

[418] United States v. Minnesota, 270 U.S. 181 (1926). For an earlier suit against a State by the United States, see United States v. Michigan, 190 U.S. 379 (1903).

[419] 295 U.S. 463, 471-475 (1935).

[420] United States v. Utah, 283 U.S. 64 (1931).

[421] United States v. California, 332 U.S. 19 (1947).

[422] United States v. Louisiana, 339 U.S. 699 (1950); United States v. Texas, 339 U.S. 707 (1950).

[423] 2 Dall. 419, 478 (1793).

[424] 6 Wheat. 264, 412 (1821).

[425] 8 Pet. 436, 444 (1834).

[426] United States v. McLemore, 4 How. 286 (1846); Hill v. United States, 9 How. 386, 389 (1850); DeGroot v. United States, 5 Wall. 419, 431 (1867); United States v. Eckford, 6 Wall. 484, 488 (1868); The Siren, 7 Wall. 152, 154 (1869); Nichols v. United States, 7 Wall. 122, 126 (1869); The Davis, 10 Wall. 15, 20 (1870); Carr v. United States, 98 U.S. 433, 437-439 (1879). "It is also clear that the Federal Government, in the absence of its consent, is not liable in tort for the negligence of its agents or employees. Gibbons v. United States, 8 Wall. 269, 275 (1869); Peabody v. United States, 231 U.S. 530, 539 (1913); Keokuk & Hamilton Bridge Co. v. United States, 260 U.S. 125, 127 (1922). The reason for such immunity as stated by Mr. Justice Holmes in Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907), is because 'there can be no legal right as against the authority that makes the law on which the right depends.' See also The Western Maid, 257 U.S. 419, 433 (1922). As the Housing Act does not purport to authorize suits against the United States as such, the question is whether the Authority--which is clearly an agency of the United States--partakes of this sovereign immunity. The answer must be sought in the intention of the Congress. Sloan Shipyards case, 258 U.S. 549, 570 (1922); Federal Land Bank v. Priddy, 295 U.S. 229, 231 (1935). This involves a consideration of the extent to which other Government-owned corporations have been held liable for their wrongful acts." 39 Op. Atty. Gen. 559, 562 (1938).

[427] 106 U.S. 196 (1882).

[428] Lonergan v. United States, 303 U.S. 33 (1938).

[429] United States v. N.Y. Rayon Importing Co., 329 U.S. 654 (1947).

[430] United States v. Shaw, 309 U.S. 495 (1940). Here it was said that the reasons for sovereign immunity "partake somewhat of dignity and decorum, somewhat of practical administration, somewhat of the political desirability of an impregnable legal citadel where government, as distinct from its functionaries may operate undisturbed by the demands of litigants," ibid. 500-501. The Court went on to hold that when the United States took possession of the assets of Fleet Corporation and assumed its obligations, it did not waive its immunity from suit in a State court on a counterclaim based on the Corporation's breach of contract, ibid. 505. Any consent to be sued will not be held to embrace action in the federal courts unless the language giving consent is clear. Great Northern Life Ins. Co. v. Read, 322 U.S. 47 (1944).

[431] Minnesota v. United States, 305 U.S. 382 (1939). The United States was held here to be an indispensable party defendant in a condemnation proceeding brought by a State to acquire a right of way over lands owned by the United States and held in trust for Indian allottees.

[432] Brady v. Roosevelt S.S. Co., 317 U.S. 575 (1943).

[433] United States v. Lee, 106 U.S. 196, 207-208 (1882). The principle of sovereign immunity was further disparaged in a brief essay by Justice Miller on the subject of the rule of law, as follows: "Under our system the people * * * are sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of a monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right." Ibid. 208-209.

[434] 204 U.S. 331 (1907).

[435] Louisiana v. McAdoo, 234 U.S. 627, 628 (1914).

[436] 162 U.S. 255 (1896). At page 271 Justice Gray endeavors to distinguish between this and the Lee Case. It was Justice Gray who spoke for the dissenters in the Lee Case.

[437] Land v. Dollar, 330 U.S. 731, 737 (1947). Justice Douglas cites for this proposition Cunningham v. Macon & B.R. Co., 109 U.S. 446, 452 (1883); Tindal v. Wesley, 167 U.S. 204 (1897); Smith v. Reeves, 178 U.S. 436, 439 (1900); Scranton v. Wheeler, 179 U.S. 141, 152, 153 (1900); Philadelphia Co. v. Stimson, 223 U.S. 605, 619, 620 (1912); Goltra v. Weeks, 271 U.S. 536 (1926). This last case actually extended the rule of the Lee Case and was virtually overruled in Larson v. Domestic & Foreign Corp., 337 U.S. 682 (1949).

[438] Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. Garfield, 211 U.S. 70 (1908); New Mexico v. Lane, 243 U.S. 52 (1917); Wells v. Roper, 246 U.S. 335 (1918); Morrison v. Work, 266 U.S. 481 (1925); Minnesota v. United States, 305 U.S. 382 (1939); Mine Safety Appliances Co. v. Forrestal, 326 U.S. 371 (1945). See also Minnesota v. Hitchcock, 185 U.S. 373 (1902). For a review of the cases dealing with sovereign immunity see Joseph D. Block, Suits Against Government Officers and the Sovereign Immunity Doctrine, 59 Harv. L. Rev. 1060 (1946).

[439] Cunningham v. Macon & B.R. Co., 109 U.S. 446, 451 (1883), quoted by Chief Justice Vinson in the opinion of the Court in Larson v. Domestic & Foreign Corp., 337 U.S. 682, 698 (1949).

[440] Larson v. Domestic & Foreign Corp., supra, 708. Justice Frankfurter's dissent also contains a useful classification of immunity cases and an appendix listing them.

[441] 330 U.S. 731, 735 (1947). The italics are added.

[442] 337 U.S. 682 (1949).

[443] Ibid. 689-697.

[444] Ibid. 701-702. This rule was applied in United States ex rel. Goldberg v. Daniels, 231 U.S. 218 (1914), which also involved a sale of government surplus property. After the Secretary of the Navy rejected the highest bid, plaintiff sought mandamus to compel delivery. The suit was held to be against the United States. See also Perkins, Secretary of Labor v. Lukens Steel Co., 310 U.S. 113 (1940), which held that prospective bidders for contracts derive no enforceable rights against a federal official for an alleged misinterpretation of his government's authority on the ground that an agent is answerable only to his principal for misconstruction of instructions, given for the sole benefit of the principal. In the Larson Case the Court not only refused to follow Goltra v. Weeks, 271 U.S. 536 (1926), but in effect overruled it. The Goltra Case involved an attempt of the Government to repossess barges which it had leased under a contract reserving the right to repossess in certain circumstances. A suit to enjoin repossession was held not to be a suit against the United States on the ground that the actions were personal and in the nature of a trespass.

[445] 337 U.S. 682, 703-704. Justice Frankfurter, dissenting, would have applied the rule of the Lee Case.

[446] Larson v. Domestic & Foreign Corp., 337 U.S. 682, 709-710 (1949).

[447] Oregon v. Hitchcock, 202 U.S. 60 (1906); Louisiana v. McAdoo, 224 U.S. 627 (1914); Wells v. Roper, 246 U.S. 335 (1918). See also Belknap v. Schild, 161 U.S. 10 (1896); and International Postal Supply Co. v. Bruce, 194 U.S. 601 (1904).

[448] Rickert Rice Mills v. Fontenot, 297 U.S. 110 (1936); and Tennessee Electric Power Co. v. Tennessee Valley Authority, 306 U.S. 118 (1939) which held that one threatened with direct and special injury by the act of an agent of the Government under a statute may challenge the constitutionality of the statute in a suit against the agent.

[449] Philadelphia Co. v. Stimson, 223 U.S. 605 (1912); Waite v. Macy, 246 U.S. 606 (1918).

[450] United States v. Lee, 106 U.S. 196 (1882); Goltra v. Weeks, 271 U.S. 536 (1926); Ickes v. Fox, 300 U.S. 82 (1937); Land v. Dollar, 330 U.S. 731 (1947).

[451] 306 U.S. 381 (1939).

[452] Federal Housing Authority v. Burr, 309 U.S. 242 (1940). Nonetheless, the Court held that a Congressional waiver of immunity in the case of a government corporation did not mean that funds or property of the United States can be levied on to pay a judgment obtained against such a corporation as the result of waiver of immunity.

[453] United States v. United States Fidelity Co., 309 U.S. 506 (1940).

[454] Charles Warren, The Supreme Court and Disputes Between States, Bulletin of the College of William and Mary, Vol. 34, No. 5, pp. 7-11 (1940). For a more comprehensive treatment of backgrounds as well as the general subject, see Charles Warren, The Supreme Court and Sovereign States, (Princeton, 1924).

[455] Warren, The Supreme Court and Disputes Between States, p. 13. However, only three such suits were brought in this period, 1789-1849. During the next 90 years, 1849-1939, at least twenty-nine such suits were brought. Ibid. 13, 14.

[456] 2 Dall. 419 (1793).

[457] Rhode Island v. Massachusetts, 12 Pet. 657, 721 (1838).

[458] Ibid. 736-737.

[459] Ibid. 737. Chief Justice Taney dissented because of his belief that the issue was not one of property in the soil, but of sovereignty and jurisdiction, and hence political. Ibid. 752-753. For different reasons, it should be noted, a suit between private parties respecting soil or jurisdiction of two States, to which neither State is a party does not come within the original jurisdiction of the Supreme Court. Fowler v. Lindsay, 3 Dall. 411 (1799).

[460] 180 U.S. 208 (1901).

[461] Kansas v. Colorado, 206 U.S. 46 (1907).

[462] 283 U.S. 336 (1931).

[463] Ibid. 342. See also Nebraska v. Wyoming, 325 U.S. 589 (1945), for the restatement of the familiar principle that the power of apportionment among several States of waters of an interstate river where the demands of the users exceeds the supply is a matter of sufficient importance and dignity as to be justiciable in the Supreme Court.

[464] South Dakota v. North Carolina, 192 U.S. 286 (1904).

[465] Virginia v. West Virginia, 220 U.S. 1 (1911). This case is also significant for Justice Holmes' statement that, "The case is to be considered in the untechnical spirit proper for dealing with a quasi-international controversy, remembering that there is no municipal code governing the matter, and that this Court may be called on to adjust differences that cannot be dealt with by Congress or disposed of by the legislature of either State alone." Ibid. 27.

[466] Kentucky v. Indiana, 281 U.S. 163 (1930).

[467] Texas v. Florida et al., 306 U.S. 398 (1939).

[468] Pennsylvania and Ohio v. West Virginia, 262 U.S. 553 (1923).

[469] 12 Pet. 657 (1838).

[470] 6 Wheat. 264, 378 (1821).

[471] 291 U.S. 286 (1934).

[472] Massachusetts v. Missouri, 308 U.S. 1, 15-16 (1939), citing Florida v. Mellon, 273 U.S. 12 (1927).

[473] 306 U.S. 398 (1939).

[474] 308 U.S. 1, 17, citing Oklahoma v. Atchison, T. & S.F.R. Co., 220 U.S. 277, 286 (1911), and Oklahoma v. Cook, 304 U.S. 387, 394 (1938). See also New Hampshire v. Louisiana, 108 U.S. 76 (1883), which held that a State cannot bring a suit on behalf of its citizens to collect on bonds issued by another State, and Louisiana v. Texas, 176 U.S. 1 (1900), which held that a State cannot sue another to prevent maladministration of quarantine laws.

[475] 308 U.S. 1, 17.

[476] Ibid. 19.

[477] The various litigations of Virginia v. West Virginia are to be found in 206 U.S. 290 (1907); 209 U.S. 514 (1908); 220 U.S. 1 (1911); 222 U.S. 17 (1911); 231 U.S. 89 (1913); 234 U.S. 117 (1914); 238 U.S. 202 (1915); 241 U.S. 531 (1916); 246 U.S. 565 (1918).

[478] 246 U.S. 565, 591.

[479] Ibid. 600.

[480] Ibid. 601.

[481] Warren, The Supreme Court and Sovereign States, 79.

[482] 2 Dall. 419 (1793).

[483] Massachusetts v. Mellon, 262 U.S. 447 (1923); Florida v. Mellon, 273 U.S. 12 (1927); New Jersey v. Sargent, 269 U.S. 328 (1926).

[484] Pennsylvania v. Quicksilver Min. Co., 10 Wall. 553 (1871); California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).

[485] Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

[486] 4 Wall. 475 (1867).

[487] 6 Wall. 50 (1868).

[488] 262 U.S. 447 (1923).

[489] 273 U.S. 12 (1927).

[490] Oklahoma v.. Atchison, T. & S.F.R. Co., 220 U.S. 277 (1911); Oklahoma v. Cook, 304 U.S. 387 (1938).

[491] 6 Wheat. 264, 398-399 (1821).

[492] Pennsylvania v. Quicksilver Min. Co., 10 Wall. 553 (1871).

[493] California v. Southern Pacific Co., 157 U.S. 229 (1895); Minnesota v. Northern Securities Co., 184 U.S. 199 (1902).

[494] 6 Wheat. 264, 398-399.

[495] 127 U.S. 265 (1888).

[496] 2 Dall. 419, 431-432 (1793).

[497] 127 U.S. 265, 289-300. This case also follows the general rule that a corporation chartered by the laws of a State, is a citizen of that State for purposes of federal jurisdiction.

[498] 304 U.S. 387 (1938).

[499] 220 U.S. 277, 286-289 (1911).

[500] 316 U.S. 159 (1942).

[501] 220 U.S. 277 (1911).

[502] 324 U.S. 439 (1945).

[503] 206 U.S. 230 (1907). Here the Court entertained a suit by Georgia and enjoined the Copper company from discharging noxious gases from their works in Tennessee over Georgia's territory.

[504] 324 U.S. 439, 447-448, citing and quoting Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

[505] 324 U.S. 439, 450, citing Missouri v. Illinois, 180 U.S. 208, 219-224, 241 (1901); Virginia v. West Virginia, 246 U.S. 565, 599 (1918); Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907).

[506] Ibid. 451, 468. Chief Justice Stone, joined by Justices Roberts, Frankfurter, and Jackson dissented on the ground that the suit actually was one for a district court, that a State is without standing to maintain suit for injuries sustained by its citizens and residents for which they may sue in their own behalf, and that as presented the suit was not one in which a court of equity could give effective relief.

[507] 2 Cr. 445, 452-453 (1805).

[508] Ibid. 453.

[509] New Orleans v. Winter et al., 1 Wheat. 91 (1816).

[510] 54 Stat. 143 (1940); 28 U.S.C.A. 1332.

[511] 337 U.S. 582 (1949).

[512] Ibid. 583-604.

[513] Ibid. 604-625.

[514] Ibid. 626-646.

[515] Ibid. 646-655.

[516] Ibid. 655.

[517] Knox v. Greenleaf, 4 Dall. 360 (1802).

[518] Shelton v. Tiffin, 6 How. 163 (1848).

[519] Williamson v. Osenton, 232 U.S. 619 (1014).

[520] Shelton v. Tiffin, 6 How. 163 (1848).

[521] Williamson v. Osenton, 232 U.S. 619 (1914).

[522] Jones v. League, 18 How. 76 (1855).

[523] Shelton v. Tiffin, 6 How. 163 (1848).

[524] 5 Cr. 61, 86 (1809).

[525] 14 Pet. 60 (1840).

[526] Strawbridge v. Curtiss, 3 Cr. 267 (1806). The Slocomb Case had to be dismissed because two members of the defendant corporation were citizens of the same State as the plaintiffs.

[527] 2 How. 497 (1844).

[528] Ibid. 558.

[529] Muller v. Dows, 94 U.S. 444, 445 (1877). This fiction had its beginning in Marshall v. Baltimore & Ohio R. Co., 16 How. 314, 329 (1854) and attained final approval in St. Louis & S.F. Ry. Co. v. James, 161 U.S. 545, 554 (1896).

[530] John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New York, 1927), 34.

[531] Dodge v. Woolsey, 18 How. 331 (1856); Mechanics' & Traders' Bank v. Debolt, 18 How. 380 (1856).

[532] Gray, op. cit., 185-186. Although Justice Wayne criticized the Strawbridge Case as going too far, later developments in determining the citizenship of corporations, have enabled the Court to restore it to its original status. Consequently the rule still requires that to maintain a diversity proceeding all the parties on one side must be citizens of different States from all the parties on the other side. Treinies v. Sunshine Mining Co., 308 U.S. 66 (1939); City of Indianapolis v. Chase National Bank, 314 U.S. 63 (1941).

[533] See Southern Realty Co. v. Walker, 211 U.S. 603 (1909), where two Georgians who conducted all of that business in Georgia created a sham corporation in South Dakota for the sole purpose of bringing suits in the federal courts which ordinarily would have been brought in the Georgia courts. Diversity jurisdiction was held not to exist because of collusion.

[534] Black and White Taxicab & T. Co. v. Brown & Yellow Taxicab & T. Co., 276 v. U.S. 518 (1928).

[535] 16 Pet. 1 (1842).

[536] 16 Pet. 1.

[537] Ibid. 19. Justice Story concluded this portion of the opinion as follows: "The law respecting negotiable instruments may be truly declared in the language of Cicero, adopted by Lord Mansfield in Luke v. Lyde, 2 Burr. 883, 887, to be in great measure, not the law of a single country only, but of the commercial world. Non erit alia lex Romae, alia Athenis; alia nunc, alia posthac, sed et apud omenes gentes, et omni tempore una eademque lex obtinebit." Ibid. 9.

[538] See Simeon E. Baldwin, The American Judiciary (New York, 1920), 169-170. See also Justice Catron's statement in Swift v. Tyson, 16 Pet. 1, 23.

[539] The Tyson doctrine was extended to wills in Lane v. Vick, 3 How. 464 (1845); to torts in Chicago City v. Robbins, 2 Bl. 418 (1862); to real estate titles and the rights of riparian owners in Yates v. Milwaukee, 10 Wall. 497 (1870); to mineral conveyances in Kuhn v. Fairmont Coal Co., 215 U.S. 349 (1910); to contracts in Rowan v. Runnels, 5 How. 134 (1847); and to the right to exemplary or punitive damages in Lake Shore & M.S.R. Co. v. Prentice, 147 U.S. 101 (1893). By 1888 there were 28 kinds of cases in which federal and State courts applied different rules of the common law. See George C. Holt, The Concurrent Jurisdiction of the Federal and State Courts (New York, 1888), 159-188.

[540] Rowan v. Runnels, 5 How. 134 (1847); Gelpcke v. Dubuque, 1 Wall. 175 (1864).

[541] Williamson v. Berry, 8 How. 495 (1850); Pease v. Peck, 18 How. 595 (1856); Watson v. Tarpley, 18 How. 517 (1856).

[542] Lane v. Vick, 3 How. 464 (1845); Williamson v. Berry, 8 How. 495 (1850); Gelpcke v. Dubuque, 1 Wall. 175 (1864).

[543] 149 U.S. 308, 401-404 (1893).

[544] 215 U.S. 349, 370 (1910).

[545] 276 U.S. 518 (1928).

[546] Ibid. 533. Justice Holmes was influenced in part by the article of Charles Warren, New Light On The History Of The Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced evidence to show that Justice Story's interpretation in the Tyson Case was contrary to the intention of the framers of the act. Mr. Warren did not, however, contend that the Tyson rule was unconstitutional. Justice Holmes was joined in his dissent by Justices Brandeis and Stone. In addition to judicial dissatisfaction with the Tyson rule as manifested in dissents, disapproval in Congressional quarters resulted in bills by Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27, 1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st Cong., 1st. sess.

[547] 293 U.S. 335 (1934).

[548] This concept was first used by Justice Bradley in Burgess v. Seligman, 107 U.S. 21 (1883).

[549] 293 U.S. 335, 339.

[550] 304 U.S. 64 (1938).

[551] 304 U.S. 64, 69-70, 77-78.

[552] Ibid. 79-80.

[553] 304 U.S. 64, 80-90.

[554] Ibid. 90, 91-92.

[555] 311 U.S. 223 (1940).

[556] 311 U.S. 169 (1940). This decision has been thoroughly criticized by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762 (1941). See also Mitchell Wendell, Relations Between Federal and State Courts (New York, 1949), 209-223. This book contains a good account of the operation of the Tyson and Tompkins rules, pp. 113-247.

[557] 333 U.S. 153 (1948). For other cases applying the rule that decisions of State intermediate courts are binding unless there is convincing evidence that the State law is otherwise, see Six Companies of California v. Highway Dist., 311 U.S. 180 (1940); Stoner v. New York Life Ins. Co., 311 U.S. 464 (1940).

[558] Vandenbark v. Owens-Illinois Co., 311 U.S. 538 (1941).

[559] 28 U.S.C.A. Sec. 1652; 62 Stat. 944 (1948). In 1938, the year of the Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 Sec. 5) was superseded; and from that time until the enactment of 62 Stat. 944, the federal courts were guided in diversity cases by the Federal Rules of Civil Procedure formulated by the Supreme Court by virtue of the authority delegated it, in 1934, by 48 Stat. 1064.

[560] Ruhlin v. New York Life Ins. Co., 304 U.S. 202 (1938).

[561] 326 U.S. 99 (1945).

[562] Ibid. 108-109.

[563] Ibid. 109. Justice Rutledge wrote a dissent in which Justice Murphy concurred. Justice Rutledge objected to the rigid application of a statute of limitations to suits in equity and to the implication that Congress could not authorize federal courts to administer equitable relief in accordance with the substantive rights of the parties, notwithstanding State statutes of limitations barring such suits in State courts. In his view, if any change were to be made, it was for Congress and not the Court to make it. In line with this ruling see Ragan v. Merchants Transfer & W. Co., 337 U.S. 530 (1949); also Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949).

[564] 2 Story, Commentaries, 467 Sec. 1696 (2d. ed., 1851).

[565] An interesting case which reached the Supreme Court under this clause was Pawlet v. Clark, 9 Cr. 292 (1815). In his opinion for the Court, Justice Story took occasion to assert that grants of land by a State to a town could not afterwards be repealed so as to divest the town of its rights under the grant. Ibid. 326; cf. Trenton v. New Jersey, 262 U.S. 182 (1923).

[566] The Exchange v. McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co. v. S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola v. The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938).

[567] Principality of Monaco v. Mississippi, 292 U.S. 313, 330 (1934).

[568] Ibid.

[569] The "Sapphire," 11 Wall. 164, 167 (1871).

[570] Ibid. 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit, or to continue one that has been brought.

[571] Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938); citing Jones v. United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign State is, of course, a political question.

[572] Guaranty Trust Co. v. United States, 304 U.S. 126, 134 (1938); citing United States v. The Thekla, 266 U.S. 328, 340, 341 (1924); United States v. Stinson, 197 U.S. 200, 205 (1905); The Davis, 10 Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). See also Ex parte Republic of Colombia, 195 U.S. 604 (1904).

[573] Guaranty Trust Co. v. United States, 304 U.S. 126, 137 (1938). Among other benefits which the Court cites as not extending to foreign States as litigants include exemption from costs and from giving discovery. Decisions are also cited to the effect that a sovereign plaintiff "should so far as the thing can be done, be put in the same position as a body corporate." Ibid, note 2, pp. 134-135.

[574] 5 Pet. 1, 16-20 (1831).

[575] Hodgson & Thompson v. Bowerbank, 5 Cr. 303 (1809).

[576] Jackson v. Twentyman, 2 Pet. 136 (1829).

[577] Susquehanna & Wyoming V.R. & C. Co. v. Blatchford, 11 Wall. 172 (1871). See, however, Lacassagne v. Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens.

[578] Browne v. Strode, 5 Cr. 303 (1809).

[579] 2 Dall. 419 (1793). For an earlier case where the point of jurisdiction was not raised, see Georgia v. Brailsford, 2 Dall. 402 (1792). For subsequent cases prior to 1861, see Rhode Island v. Massachusetts, 12 Pet. 657 (1838); Florida v. Georgia, 17 How. 478 (1855).

[580] Kentucky v. Dennison, 24 How. 66, 98 (1861).

[581] 1 Cr. 137 (1803).

[582] Ibid. 174. See also Wiscart v. Dauchy, 3 Dall. 321 (1796). This exclusive interpretation of article III posed temporary difficulties for Marshall in Cohens v. Virginia, 6 Wheat. 264 (1821), where he gave a contrary interpretation to other provisions of the Article. The exclusive interpretation as applied to original jurisdiction of the Supreme Court has been followed in Ex parte Bollman, 4 Cr. 75 (1807); New Jersey v. New York, 5 Pet. 284 (1831); Ex parte Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864); and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex parte Levitt, Petitioner, 302 U.S. 633 (1937), the Court was asked to purge itself of Justice Black on the ground that his appointment to it violated the second clause of section 6 of Article I. Although it rejected petitioner's application, it refrained from pointing out that it was being asked to assume original jurisdiction contrary to the holding in Marbury v. Madison.

[583] 252 U.S. 416 (1920).

[584] 262 U.S. 447 (1923).

[585] 157 U.S. 229, 261 (1895). Here the Court refused to take jurisdiction on the ground that the City of Oakland and the Oakland Water Company, a citizen of California, were so situated that they would have to be brought into the case, which would make it then a suit between a State and citizens of another State and its own citizens. The same rule was followed in New Mexico v. Lane, 243 U.S. 52, 58 (1917); and in Louisiana v. Cummins, 314 U.S. 577 (1941). See also Texas v. Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the original jurisdiction of the Supreme Court in specific classes of cases see the discussion of suits affecting ambassadors and suits between States, supra, pp. 571, 591-593.

[586] Ames v. Kansas ex rel. Johnston, 111 U.S. 449 (1884).

[587] 127 U.S. 265 (1888).

[588] 1 Stat. 73, 80.

[589] 127 U.S. 265, 297. Note also the dictum in Cohens v. Virginia, 6 Wheat. 264, 398-399 (1821) to the effect that "* * * the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases in which an original suit might not be instituted in a federal court. Of the last description, is every case between a State and its citizens, and, perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction."

[590] Ohio ex rel. Popovici v. Agler, 280 U.S. 379 (1930).

[591] 3 Dall. 321 (1796). Justice Wilson dissented from this holding and contended that the appellate jurisdiction, as being derived from the Constitution, could be exercised without an act of Congress or until Congress made exceptions to it.

[592] Durousseau v. United States, 6 Cr. 307 (1810).

[593] 6 Wall. 318 (1868); 7 Wall. 506 (1869).

[594] 15 Stat. 44 (1868).

[595] 7 Wall. 506, 514. The Court also took occasion to reiterate the rule that an affirmation of appellate jurisdiction is a negative of all other and stated that as a result acts of Congress providing for the exercise of jurisdiction had "come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to * * * it." It continued grandly: "* * * judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer." Ibid. 513, 515.

[596] See especially the parallel case of Ex parte Yerger, 8 Wall. 85 (1869). For cases following Ex parte McCardle, see Railroad Co. v. Grant, 98 U.S. 398, 491 (1878); Kurtz v. Moffitt, 115 U.S. 487, 497 (1885); Cross v. Burke, 146 U.S. 82, 86 (1892); Missouri v. Missouri Pacific R. Co., 292 U.S. 13, 15 (1934); Stephan v. United States, 319 U.S. 423, 426 (1943). See also United States v. Bitty, 208 U.S. 393, 399-400 (1908), where it was held that there is no right to appeal to the Supreme Court except as an act of Congress confers it.

[597] 105 U.S. 381 (1882).

[598] Ibid. 386. See also Barry v. Mercein, 5 How. 103, 119 (1847); National Exchange Bank v. Peters, 144 U.S. 570 (1892); American Construction Co. v. Jacksonville T. & K.W.R. Co., 148 U.S. 372 (1893); Colorado Central Consol. Min. Co. v. Turck, 150 U.S. 138 (1893); St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 281 (1908); Luckenbach S.S. Co. v. United States, 272 U.S. 533 (1926).

[599] 1 Wheat. 304 (1816).

[600] Ibid. 374.

[601] Ibid. 331. This recognition, however, is followed by the statement that "the whole judicial power of the United States should be at all times, vested either in an original or appellate form, in some courts created under its authority."

[602] 2 Commentaries, Sec. 1590-1595.

[603] 1 Stat. 73, Sec. 9-11.

[604] Ibid.

[605] Ibid. Sec. 14, 15, 17, 18.

[606] Ibid. Sec. 16.

[607] Dall. 8 (1799).

[608] Ibid. 9.

[609] Ex parte Bollman, 4 Cr. 75, 93 (1807). Two years later Chief Justice Marshall in Bank of United States v. Deveaux, 5 Cr. 61 (1809), held for the Court that the right to sue does not imply a right to sue in a federal court unless conferred expressly by an act of Congress.

[610] 7 Cr. 32 (1812).

[611] Ibid. 33.

[612] Ibid.

[613] 12 Pet. 657, 721-722 (1838).

[614] 3 How. 236 (1845).

[615] Ibid. 244-245. To these sweeping assertions of legislative supremacy Justices Story and McLean took vigorous exception. They denied the authority of Congress to deprive the courts of power and vest it in an executive official because "the right to construe the laws in all matters of controversy is of the very essence of judicial power." In their view the act as interpreted violated the principle of the separation of powers, impaired the independence of the judiciary, and merged the executive and judicial department. Dissent of Justice McLean, pp. 264 and following.

[616] 8 How. 441 (1850).

[617] Ibid. 449.

[618] Rice v. M. & N.W.R. Co., 1 Bl. 358, 374 (1862); Mayor of Nashville v. Cooper, 6 Wall. 247, 251-252 (1868); United States v. Eckford, 6 Wall. 484, 488 (1868); Ex parte Yerger, 8 Wall. 85, 104 (1868); case of the Sewing Machine Companies, 18 Wall. 553, 557-558 (1874); Morgan v. Gay, 19 Wall. 81, 83 (1874); Gaines v. Fuentes, 92 U.S. 10, 18 (1876); Jones v. United States, 137 U.S. 202, 211 (1890); Holmes v. Goldsmith, 147 U.S. 150, 158 (1893); Johnson Steel Street Rail Co. v. Wharton, 152 U.S. 252, 260 (1894); Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511, 513-521 (1898); Stevenson v. Fain, 195 U.S. 165, 167 (1904); Kentucky v. Powers, 201 U.S. 1, 24 (1906); Venner v. Great Northern R. Co., 209 U.S. 24, 35 (1908); Ladew v. Tennessee Copper Co., 218 U.S. 357, 358 (1910); Kline v. Burke Construction Co., 260 U.S. 226, 233, 234 (1922). See also Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); Federal Power Commission v. Pacific Power & Light Co., 307 U.S. 156 (1939).

[619] Mayor of Nashville v. Cooper, 6 Wall. 247, 251-252 (1868). The rule of Cary v. Curtis and Sheldon v. Sill was restated with emphasis many years later in Kline v. Burke Construction Co., 260 U.S. 226, 233-234 (1922), where Justice Sutherland, speaking for the Court, proceeded to say to article III, Sec. 1 and 2: "The effect of these provisions is not to vest jurisdiction in the inferior courts over the designated cases and controversies but to delimit those in respect of which Congress may confer jurisdiction upon such courts as it creates. Only the original jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. * * * The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. * * * And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or in part; and if withdrawn without a saving clause all pending cases though cognizable when commenced must fall."

[620] 56 Stat. 23 (1942).

[621] 319 U.S. 182 (1943).

[622] 321 U.S. 414 (1944).

[623] Ibid. 468.

[624] See infra, pp. 515-528.

[625] 26 U.S.C.A. 3653.

[626] See for example Snyder v. Marks, 109 U.S. 189 (1883); Cheatham v. United States, 92 U.S. 85 (1875); Shelton v. Platt, 139 U.S. 591 (1891); Pacific Steam Whaling Co. v. United States, 187 U.S. 447 (1903); Dodge v. Osborn, 240 U.S. 118 (1916).

[627] Dodge v. Brady, 240 U.S. 122, 126 (1916).

[628] Hill v. Wallace, 259 U.S. 44 (1922); Lipke v. Lederer, 259 U.S. 557 (1922); Miller v. Standard Nut Margarine Co., 284 U.S. 498, 509 (1932).

[629] Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv. L. Rev. 109 (1935).

[630] Allen v. Regents of University System of Georgia, 304 U.S. 439, 445-449 (1938).

[631] 47 Stat. 70 (1932).

[632] Lauf v. E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance v. Sanitary Grocery Co., 303 U.S. 552. 562-563 (1838); Milk Wagon Drivers' Union v. Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).

[633] 330 U.S. 258 (1947). Virginian R. Co. v. System Federation No. 40, 300 U.S. 515 (1937), in some ways constitutes an exception to section 9 of the statute by sustaining a mandatory injunction issued against an employer on the petition of employees on the ground that the prohibition of section 9 does not include mandatory injunctions, but "blanket injunctions which are usually prohibitory in form." For other acts of Congress limiting the power of the federal courts to issue injunctions see infra, pp. 523-525.

[634] 1 Wheat. 304 (1816).

[635] 18 How. 272 (1856).

[636] 285 U.S. 22 (1932).

[637] Ibid 56-57. Cf., however, Shields v. Utah, Idaho R. Co., 305 U.S. 185 (1938).

[638] Mayor of Nashville v. Cooper, 6 Wall. 247, 252 (1868); Kline v. Burke Construction Co., 260 U.S. 226, 233, 234 (1922). See also Hodgson v. Bowerbank, 5 Cr. 303, 304 (1809) where Chief Justice Marshall disposed of the effort of British subjects to docket a case in a circuit court, saying, "turn to the article of the Constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the Constitution."

[639] Hayburn's Case, 2 Dall. 409 (1792).

[640] United States v. Ferriera, 13 How. 40 (1852); Gordon v. United States, 117 U.S. 697 (1864); Muskrat v. United States, 219 U.S. 346 (1911).

[641] In addition to the cases cited in note 3[Transcriber's Note: Reference is to footnote 640 above.], see Chicago & S. Air Lines v. Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).

[642] In addition to the cases cited in notes 2, 3, and 4[Transcriber's Note: Reference is to footnotes 639, 640, and 641 above.] see Federal Radio Commission v. General Electric Co., 281 U.S. 464, 469 (1930); Postum Cereal Co. v. California Fig Nut Co., 272 U.S. 693 (1927); Keller v. Potomac Electric Power Co., 261 U.S. 428 (1923). See also the dissenting opinion of Justice Rutledge in Yakus v. United States, 321 U.S. 414, 468 (1944).

[643] Tutun v. United States, 270 U.S. 568 (1926), where the Court held that the United States is always a possible adverse party to a naturalization petition.

[644] Fong Yue Ting v. United States, 149 U.S. 698 (1893), where the Court sustained an act of Congress requiring the registration of Chinese and creating agencies for the expulsion of aliens unlawfully within the country and for the issuance of certificates to those entitled to remain. The act provided for special proceedings in such cases and prescribed the evidence the courts were to receive and the weight to be attached to it. The procedure was held to contain all the elements of a case--"a complainant, a defendant, and a judge--actor, reus, et judex." pp. 728-729.

[645] La Abra Silver Mining Co. v. United States, 175 U.S. 423 (1899). Here the Court sustained an act of Congress which directed the Attorney General to bring a suit on behalf of the United States against the appellants to determine whether an award made by an international claims commission was obtained by fraud. The Court of Claims was vested with full jurisdiction with appeal to the Supreme Court to hear the case, decide it, to issue all proper decrees therein, and to enforce them by injunction. The Court regarded the money received by the United States from Mexico as property of the United States. This together with the interest of Congress in national honor in dealing with Mexico was sufficient to enable it to authorize a suit for the decision of a question "peculiarly judicial in nature." pp. 458-459.

[646] Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917).

[647] Taylor v. Carryl, 20 How. 583 (1858).

[648] 1 Wheat. 304 (1816).

[649] 6 Wheat. 264 (1821).

[650] 21 How. 506 (1859).

[651] For a full account of this episode see Warren, Supreme Court in United States History, II, 193-194. See also Baldwin, The American Judiciary, 163.

[652] 6 Pet. 515, 596 (1832). See also Warren, Supreme Court in United States History, II, 213; and Baldwin, op. cit., 164. It was Worcester v. Georgia which allegedly provoked the probably apocryphal comment attributed to President Jackson, "'Well, John Marshall has made his decision, now let him enforce it.'" 2 Warren, Ibid. 219.

[653] Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485 (1900).

[654] Covell v. Heyman, 111 U.S. 176 (1884).

[655] Riehle v. Margolies, 279 U.S. 218 (1929); Harkin v. Brundage, 276 U.S. 36 (1928); Wabash R. Co. v. Adelbert College, 208 U.S. 38 (1908); Harkrader v. Wadley, 172 U.S. 148 (1898); Central National Bank v. Stevens, 169 U.S. 432 (1898); Shields v. Coleman, 157 U.S. 168 (1895); Moran v. Sturges, 154 U.S. 256 (1894); Krippendorf v. Hyde, 110 U.S. 276 (1884); Covell v. Heyman, 111 U.S. 176 (1884); Watson v. Jones, 13 Wall. 679 (1872); Buck v. Colbath, 3 Wall. 334 (1866); Freeman v. Howe, 24 How. 450 (1861); Orton v. Smith, 18 How. 263 (1856); Taylor v. Carryl, 20 How. 583 (1858); Peck v. Jenness, 7 How. 612 (1849). For later cases see Toucey v. New York Life Ins. Co., 314 U.S. 118 (1941). Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939); Brillhart v. Excess Ins. Co., 316 U.S. 491 (1942); Mandeville v. Canterbury, 318 U.S. 47 (1943); Markham v. Allen, 326 U.S. 490 (1946); Propper v. Clark, 337 U.S. 472 (1949).

[656] McKim v. Voorhies, 7 Cr. 279 (1812); Duncan v. Darst, 1 How. 301 (1843); United States ex rel. Riggs v. Johnson County, 6 Wall. 166 (1868); Moran v. Sturges, 154 U.S. 256 (1894); Farmers' Loan & Trust Co. v. Lake St. Elev. R. Co., 177 U.S. 51 (1900)

[657] 6 Wall. 166 (1868).

[658] Princess Lida of Thurn & Taxis v. Thompson, 305 U.S. 456 (1939). This case rests on the principle of comity that where there are two suits in rem or quasi in rem, as they were held to be here, so that the Court has possession of property which is the subject of litigation or must have control of it in order to proceed with the cause and grant the relief sought, the jurisdiction of one court must yield to that of the other. The principle, applicable to both federal and State courts, that the Court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, was held not to be confined to cases where the property has actually been seized under judicial process, but applies as well to suits brought for marshalling assets, administering trusts, or liquidating estates and to suits of a similar nature, where to give effect to its jurisdiction the Court must control the property.

[659] 1 Stat. 335 (1793); 28 U.S.C.A. Sec. 2283. In the judicial code an exception is made to proceedings in bankruptcy.

[660] Diggs v. Wolcott, 4 Cr. 179 (1807); Orton v. Smith, 18 How. 263 (1856); see especially Peck v. Jenness, 7 How. 612 (1849) where the Court held that the prohibition of the act of 1793 extended to injunction suits brought against the parties to a State court proceeding as well as to the State court itself.

[661] Freeman v. Howe, 24 How. 450 (1861); Julian v. Central Trust Co., 193 U.S. 93 (1904); Riverdale Cotton Mills v. Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Looney v. Eastern Texas R. Co., 247 U.S. 214 (1918).

[662] Farmers' Loan & Trust Co. v. Lake St. Elev. R. Co., 177 U.S. 51 (1900); Riverdale Cotton Mills v. Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Julian v. Central Trust Co., 193 U.S. 93 (1904); Kline v. Burke Construction Co., 260 U.S. 226 (1922). For a discussion of this rule see Toucey v. New York Life Ins. Co., 314 U.S. 118, 134-136 (1941).

[663] Ex parte Young, 209 U.S. 123 (1908), is the leading case.

[664] Arrowsmith v. Gleason, 129 U.S. 86 (1889); Marshall v. Holmes, 141 U.S. 589 (1891); Simon v. Southern R. Co., 236 U.S. 115 (1915).

[665] French v. Hay, 22 Wall. 231 (1875); Dietzsch v. Huidekoper, 103 U.S. 494 (1881); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239 (1905).

[666] The earlier cases are Root v. Woolworth, 150 U.S. 401 (1893); Prout v. Starr, 188 U.S. 537 (1903); Juilian v. Central Trust Co., 193 U.S. 93 (1904).

[667] 314 U.S. 118 (1941).

[668] Ibid. 133-141. Justice Reed, in a dissent in which Chief Justice Stone and Justice Roberts concurred, also reviewed the authorities.

[669] Southern Ry. Co. v. Painter, 314 U.S. 155 (1941).

[670] 9 Wheat. 738 (1824).

[671] 209 U.S. 123 (1908). See also Smyth v. Ames, 169 U.S. 466 (1898); Reagan v. Farmers' Loan & Trust Co., 154 U.S. 362 (1894).

[672] Harkrader v. Wadley, 172 U.S. 148 (1898); In re Sawyer, 124 U.S. 200 (1888).

[673] Ex parte Young, 209 U.S. 123, 163 (1908).

[674] Ibid. 174. The Young case evoked sharp criticism in Congress and led to the enactment of Sec. 266 of the Judicial Code, prohibiting the issuance of injunctions to restrain enforcement of State laws by a single federal judge, providing for a three-judge court in such cases, limiting the effect of temporary injunctions, and expediting appeals in such cases to the Supreme Court. Act of June 18, 1910, 36 Stat. 539; 28 U.S.C.A. Sec. 1253, 2281, 2284. A supplementary act in 1913 (37 Stat. 1013) amended Sec. 266 of the Judicial Code providing for the stay of federal proceedings to enjoin State legislation if a suit has been brought in a State court to enforce the legislation until the State court has determined the issues. Section 266 was amended again in 1925 when the provisions concerning interlocutory injunctions were extended to include permanent injunctions. Act of February 13, 1925, 43 Stat. 938.

[675] Prentis v. Atlantic Coast Line R. Co., 211 U.S. 210 (1908); Gilchrist v. Interborough Rapid Transit Co., 279 U.S. 159 (1929); Grubb v. Public Utilities Commission, 281 U.S. 470 (1930); Beal v. Missouri Pacific R. Co., 312 U.S. 45 (1941).

[676] Phillips v. United States, 312 U.S. 246, 249 (1941), citing and quoting Ex parte Collins, 277 U.S. 565, 577 (1928).

[677] 312 U.S. 246, 251, citing Moore v. Fidelity & Deposit Co., 272 U.S. 317 (1926); Smith v. Wilson, 273 U.S. 388 (1927); Oklahoma Gas Co. v. Packing Co., 292 U.S. 386 (1934); Ex parte Williams, 277 U.S. 267 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928); Rorick v. Commissioners, 307 U.S. 208 (1939); Ex parte Bransford, 310 U.S. 354 (1940).

[678] Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 354 (1930).

[679] 21 How. 506 (1859).

[680] Ibid. 514-516, 523-524, 526.

[681] United States v. Tarble (Tarble's Case), 13 Wall. 397, 407-408 (1872).

[682] 1 Stat. 81, Sec. 14.

[683] 4 Stat. 634, Sec. 7 (1833).

[684] 5 Stat. 539 (1942).

[685] 14 Stat. 385 (1867).

[686] Rev. Stat., Sec. 753; 28 U.S.C.A. Sec. 2242.

[687] 100 U.S. 257 (1880).

[688] In re Neagle, 135 U.S. 1 (1890).

[689] In re Loney, 134 U.S. 372 (1890).

[690] Boske v. Comingore, 177 U.S. 459 (1900).

[691] Ohio v. Thomas, 173 U.S. 276 (1899).

[692] 209 U.S. 205 (1908).

[693] 117 U.S. 241 (1886).

[694] Ibid. 251.

[695] Harkrader v. Wadley, 172 U.S. 148 (1898); Whitten v. Tomlinson, 160 U.S. 231 (1895).

[696] Frank v. Mangum, 237 U.S. 309 (1915); Tinsley v. Anderson, 171 U.S. 101 (1898).

[697] Maryland v. Soper, 270 U.S. 9, 36, 44 (1926). In addition to the cases cited above see Ex parte Fonda, 117 U.S. 516 (1886); Duncan v. McCall, 139 U.S. 449 (1891); New York v. Eno, 155. U.S. 89 (1894); Baker v. Grice, 169 U.S. 284 (1898); Matter of Moran, 203 U.S. 96 (1906); Mooney v. Holohan, 294 U.S. 103 (1935); Ex parte Hawk, 321 U.S. 114 (1944). Compare, however, Wade v. Mayo, 334 U.S. 672 (1948), where it was held that failure of the petitioner to appeal to the Supreme Court from a conviction sustained by the Florida Supreme Court did not bar relief by habeas corpus because of denial of counsel. In Ex parte Hawk, 321 U.S. 114 (1944), the rule pertaining to the exhaustion of remedies was applied so as to include a certiorari petition in the Supreme Court. In adopting a new United States Code in 1948 (62 Stat. 967) Congress added a new section to existing habeas corpus provisions which stipulated that no application for a writ of habeas corpus by a person in custody pursuant to a judgment of a State court shall be granted until the applicant has exhausted the remedies available in the courts of the States and that an applicant shall not be deemed to have exhausted State remedies if he has the right under State law to raise, by any available procedure, the question presented, 28 U.S.C.A. Sec. 2254. This section codified Ex parte Hawk.

[698] 334 U.S. 672 (1948).

[699] 258 U.S. 254 (1922).

[700] Ibid. 259.

[701] Houston v. Moore, 5 Wheat. 1, 27-28 (1820).

[702] Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine and Spirits Act, 1 Stat. 376 (1794).

[703] 1 Stat. 302 (1793).

[704] 1 Stat. 414 (1795).

[705] 1 Stat. 577.

[706] 1 Stat. 727 (1799).

[707] 2 Stat. 453 (1808); 2 Stat. 473 (1808); 2 Stat. 499 (1808); 2 Stat. 506 (1809); 2 Stat. 528 (1809); 2 Stat. 550 (1809); 2 Stat. 605 (1810); 2 Stat. 707 (1812); 3 Stat. 88 (1813).

[708] 3 Stat. 244. For the trial of federal offenses in State courts see Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545 (1925).

[709] Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545, 577-581 (1925).

[710] Justice Story dissenting in Houston v. Moore, 5 Wheat. 1, 69 (1820); Justice McLean dissenting in United States v. Bailey, 9 Pet. 238, 259 (1835).

[711] 16 Pet. 539, 615 (1842).

[712] Robertson v. Baldwin, 165 U.S. 275 (1897); Dallemagne v. Moisan, 197 U.S. 169 (1905). See also Teal v. Felton, 12 How. 284 (1852); Claflin v. Houseman, 93 U.S. 130 (1876). This last case proceeds on the express assumption that the State and National Governments are part of a single nation and implicity repudiates the idea of separate sovereignties, as set out in Prigg v. Pennsylvania, 16 Pet. 539 (1842).

[713] Mitchell Wendell, Relations between the Federal and State Courts (New York, 1949), 278.

[714] 35 Stat. 65 (1908).

[715] Hoxie v. New York, N.H. & H.R. Co., 82 Conn. 352 (1909).

[716] 223 U.S. 1, 59 (1912).

[717] Brown v. Western Ry. Co. of Alabama, 338 U.S. 294 (1949). See Justice Frankfurter's dissent in this case for a summary of rulings to the contrary.

[718] 330 U.S. 386 (1947).

[719] 56 Stat. 23, 33-34, 205 (c).

[720] 330 U.S. 386, 389.

[721] Ibid. 390. Justice Black refers to Prigg v. Pennsylvania, 16 Pet. 539, 615 (1842), and other cases as broadly questioning the power and duty of State courts to enforce federal criminal law. The cases primarily relied upon in the opinion are Claflin v. Houseman, 93 U.S. 130 (1876); Mondou v. New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1 (1912).

[722] Cf. Doyle v. Continental Ins. Co., 94 U.S. 535 (1877), (which upheld a similar Wisconsin statute), and Security Mut. L. Ins. Co. v. Prewitt, 202 U.S. 246 (1906); with Home Ins. Co. v. Morse, 20 Wall. 445 (1874); Barron v. Burnside, 121 U.S. 186 (1887); Southern P. Co. v. Denton, 146 U.S. 202 (1892); Gerling v. Baltimore & O.R. Co., 151 U.S. 673, 684 (1894); Barrow S.S. Co. v. Kane, 170 U.S. 100, 111 (1898); Herndon v. Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910); Harrison v. St. Louis & S.F.R. Co., 232 U.S. 318 (1914); Donald v. Philadelphia & R. Coal & I. Co., 241 U.S. 329 (1916).

[723] 257 U.S. 529, 532 (1922).

[724] 25 Edward III, Stat. 5, Ch. 2. See also Story's Commentaries On The Constitution Of The United States, Vol. 2, 529-540, (5th ed.).

[725] 4 Cr. 75 (1807).

[726] Ibid. 75, 126.

[727] Ibid. 126.

[728] Ibid. 127.

[729] United States v. Burr, 4 Cr. 470, Appx. (1807).

[730] There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States v. Vigol, 28 Fed. Cas. No. 16,621 (1795); United States v. Mitchell, 26 Fed. Cas. No. 15,788 (1795). After conviction, the defendants were pardoned. See also for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States v. Hanway, 26 Fed. Cas. No. 15,299 (1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott v. United States, 20 Wall. 459 (1875). See also Hanauer v. Doane, 12 Wall. 342 (1871); Thorington v. Smith, 8 Wall. 1 (1869); Young v. United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution.

[731] 325 U.S. 1 (1945).

[732] 89 Law. Ed. 1443-1444 (Argument of Counsel).

[733] 325 U.S. 35.

[734] Ibid. 34-35. Earlier Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." A citizen, it was said, may take actions "which do aid and comfort the enemy--* * *--but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Ibid. 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3).

[735] 330 U.S. 631 (1947).

[736] Ibid. 635-636.

[737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Ibid. 649. The following summary, taken from the Appendix to the Government's brief in Cramer v. United States, 325 U.S. 1 (1945), and incorporated as note 38 in the Court's opinion (pp. 25-26), contains all the cases in which, prior to Kawakita v. United States, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: Whiskey Rebellion cases: United States v. Vigol, 28 Fed. Cas. No. 16,621 (1795), United States v. Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas. Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); United States v. Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) (conspiracy to levy war held not an overt act of levying war). United States v. Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a sufficient overt act; acquittal). United States v. Hodges, 26 Fed. Cas No. 15,374 (1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States v. Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States v. Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States v. Hanway, 26 Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of Fugitive Slave Law no levying of war). United States v. Greiner, 26 Fed. Cas. No. 15,262 (1861) (participation as members of state militia company in seizure of a federal fort is a levying of war). United States v. Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer v. Doane, 12 Wall. 342 (1871); Carlisle v. United States, 16 Wall. 147 (1873); Sprott v. United States, 20 Wall. 459, 371[Transcriber's Note: "371" is incorrect--case occupies 20 Wall. 459-474 (1874)] (1874); United States v. Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States v. Cathcart and United States v. Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case (unreported: see Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); see 2 Warren, Supreme Court in United States History (1934 ed.) 485-487; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States v. Magtibay, 2 Phil. 703 (1903), United States v. De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States v. Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States v. Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held sufficient overt acts). United States v. Robinson, 259 F. 685 (1919) (dictum, acts harmless on their face are insufficient overt acts). United States v. Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 (1920) (act indifferent on its face may be sufficient overt act). United States v. Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan v. United States, 133 F. (2d) 87 (1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States v. Cramer, 137 F. (2d) 888 (1943).

[738] 343 U.S. 717.

[739] Ibid. 732. For citations on the subject of dual nationality, see ibid. 723 note 2. Three dissenters asserted that Kawakita's conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. "As a matter of law, he expatriated himself as well as that can be done." Ibid. 746.

[740] Ex parte Bollman, 4 Cr. 75 (1807).

[741] United States v. Burr, 4 Cr. 470 (1807).

[742] Cramer v. United States, 325 U.S. 1 (1945).

[743] Haupt v. United States, 330 U.S. 631 (1947).

[744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807).

[745] 12 Stat. 589. This act incidentally did not designate rebellion as treason.

[746] Miller v. United States, 11 Wall. 268, 305 (1871).

[747] Wallach v. Van Riswick, 92 U.S. 202, 213 (1876).

[748] Lord de la Warre's Case, 11 Coke, 1 a. A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned, but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Illinois Central R. Co. v. Bosworth, 133 U.S. 92, 101 (1890); Knote v. United States, 95 U.S. 149 (1877); Wallach v. Van Riswick, 92 U.S. 202, 213 (1876); Armstrong's Foundry v. United States, 6 Wall. 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle v. United States, 16 Wall. 147, 154-155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 (1863) which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States v. Wiltberger, 5 Wheat. 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason "is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary."

ARTICLE IV

STATES' RELATIONS

Section 1. Full faith and credit Page Sources and effect of this provision 651 Private international law 651 Importance of the constitutional provision 652 Acts of 1790 and 1804 652 Force and effect of same 652 Judgments: Primary concern of the provision 653 Two principal classes of judgments 653 Effect to be given in forum State 653 Jurisdictional prerequisite 657 Judgments in personam 658 Jurisdictional question 659 Service on foreign corporations 660 Service on out-of-State owners of motor vehicles 660 Judgments in rem 661 Thompson v. Whitman 661 Divorce decrees 662 Jurisdictional prerequisite: Domicile 662 Haddock v. Haddock 662 Emergence of the domicile question 663 Williams I and II 664 Cases involving claims for alimony or property arising in forum State 666 Recent cases 668 State of the law today: quaere 670 Decrees awarding alimony, custody of children 670 Collateral attack by child 671 Decrees of other types 672 Probate decrees 672 Adoption decrees 673 Garnishment decrees 673 Fraud as a defense to suits on foreign judgments 674 Penal judgments: types entitled to recognition 674 Recognition of rights based upon Constitutions, statutes, common law 675 The early rule 675 Development of the modern rule 675 Transitory actions: Death statutes 676 Actions upon contract: When governed by law of place of making 677 Stockholder-corporation relationship 677 Fraternal benefit society--member relationship 678 Insurance company, building and loan association--contractual relationships 679 Workmen's compensation statutes 681 Development of section to date and possibilities 682 Evaluation of results 682 Scope of powers of Congress under section 683 Full faith and credit in the federal courts 684 Judgments of foreign States 685 Section 2. Interstate comity 686 Clause 1. The comity clause 686 Sources 686 Theories as to its purpose 686 How implemented 688 "Citizens of each State" 688 Corporations 688 "All privileges and immunities of citizens in the several States" 689 Discrimination in private rights 691 Access to courts 691 Taxation 692 Clause 2. Fugitives from justice 693 Duty to surrender 693 "Fugitive from justice" 694 Procedure of removal 695 Trial of fugitive after removal 695 Clause 3. Fugitives from labor 696 Section 3. New States and government of territory, etc. 697 Clause 1. Admission of States 697 Doctrine of equality of the States 697 Earlier scope of the doctrine 698 Citizenship of inhabitants 699 Judicial proceedings 699 Property rights; United States v. Texas 700 Rights conveyed to private persons before admission of State 700 Clause 2. Property and territory; regulatory powers of Congress 701 Property of the United States 701 Methods of disposing 701 Public lands 701 Power of the States 702 Power of Congress over territories 703 Section 4. Obligations of United States to the States 704 Republican form of government 704 Protection against domestic violence 704 Decline in importance of this guaranty 704

STATE'S RELATIONS

Article IV

Section 1. Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Sources and Effect of This Provision

PRIVATE INTERNATIONAL LAW

The historical background of the above section is furnished by that branch of private law which is variously termed "Private International Law," "Conflict of Laws," "Comity." This comprises a body of rules, based largely on the writings of jurists and judicial decisions, in accordance with which the courts of one country or "jurisdiction" will ordinarily, in the absence of a local policy to the contrary, extend recognition and enforcement to rights claimed by individuals by virtue of the laws or judicial decisions of another country or "jurisdiction." Most frequently applied examples of these rules include the following: the rule that a marriage which is good in the country where performed (lex loci) is good elsewhere; likewise the rule that contracts are to be interpreted in accordance with the laws of the country where entered into (lex loci contractus) unless the parties clearly intended otherwise; also the rule that immovables may be disposed of only in accordance with the law of the country where situated (lex rei sitae);[1] also the converse rule that chattels adhere to the person of their owner and hence are disposable by him, even when located elsewhere, in accordance with the law of his domicile (lex domicilii); also the rule that regardless of where the cause arose, the courts of any country where personal service can be got upon the defendant will take jurisdiction of certain types of personal actions, hence termed "transitory," and accord such remedy as the lex fori affords. Still other rules, of first importance in the present connection, determine the recognition which the judgments of the courts of one country shall receive from those of another country.

IMPORTANCE OF THE CONSTITUTIONAL PROVISION

So even had the States of the Union remained in a mutual relationship of entire independence, still private claims originating in one would often have been assured recognition and enforcement in the others. The framers of the Constitution felt, however, that the rules of private international law should not be left as among the States altogether on a basis of comity, and hence subject always to the overruling local policy of the lex fori, but ought to be in some measure at least placed on the higher plane of constitutional obligation. In fulfillment of this intent the section now under consideration was inserted, and Congress was empowered to enact supplementary and enforcing legislation.

THE ACTS OF 1790 AND 1804

Congressional legislation under the full faith and credit clause, so far as it is pertinent to adjudication thereunder, is today embraced in section 687 of Title 28 of the United States Code, which consolidates the acts of May 26, 1790 and of March 27, 1804.[2] "The acts of the legislature of any State or Territory, or of any country subject to the jurisdiction of the United States, shall be authenticated by having the seals of such State, Territory, or country affixed thereto. The records and judicial proceedings of the courts of any State or Territory, or of any such country, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, that the said attestation is in due form. And the said records and judicial proceedings, so authenticated, shall have such faith and credit given to them in every court within the United States as they have by law or usage in the courts of the State from which they are taken."

FORCE AND EFFECT OF SAME

Several points clearly emerge: (1) the word "effect" is construed as referring to the effect of the records when authenticated, not to the effect of the authentication; (2) the faith and credit which is required by the rules of private international law is superseded as to "the records and judicial proceedings" of each State by a rule of complete obligation; as to these the local policy of the forum State can validly have no application. On the other hand, (3) while the act of 1790 lays down a rule for the authentication of the statutes of the several States, it says nothing regarding their extraterritorial operation; and (4) it is similarly silent regarding the common law of the several States. These silences, however, have been repealed, in part, by judicial decision. (See pp. 675-682.)

Judgments: The Primary Concern of the Provision

TWO PRINCIPAL CLASSES OF JUDGMENTS

Article IV, section 1, has had its principal operation in relation to judgments. The cases fall into two groups: First, those in which the judgment involved was offered as a basis of proceedings for its own enforcement outside the State where rendered, as for example, when an action for debt is brought in the courts of State B on a judgment for money damages rendered in State A; secondly, those in which the judgment involved was offered, in conformance with the principle of res judicata, in defense in a new or "collateral" proceeding growing out of the same facts as the original suit, as for example, when a decree of divorce granted in State A is offered as barring a suit for divorce by the other party to the marriage in the courts of State B.

EFFECT TO BE GIVEN IN FORUM STATE

The English courts and the different State courts in the United States, while recognizing "foreign judgments in personam" which were reducible to money terms as affording a basis for actions in debt, originally accorded them generally only the status of prima facie evidence in support thereof, so that the merits of the original controversy could always be opened. When offered in defense, on the other hand, "foreign judgments in personam" were ordinarily treated as conclusive, as between parties, of the issues they purported to determine, provided they had been rendered by a court of competent jurisdiction and were not tainted with fraud. And judgments "in rem" rendered under the same conditions were regarded as conclusive upon everybody on the theory that, as stated by Chief Justice Marshall, "it is a proceeding in rem, to which all the world are parties."[3]

The pioneer case was Mills v. Duryee,[4] decided in 1813. In an action brought in the circuit court of the District of Columbia--the equivalent of a State court for this purpose--on a judgment from a New York court, the defendant endeavored to reopen the whole question of the merits of the original case by a plea of "nil debet." It was answered in the words of the act of 1790 itself, that such records and proceedings were entitled in each State to the same faith and credit as in the State of origin; and that inasmuch as they were records of a court in the State of origin, and so conclusive of the merits of the case there, they were equally so in the forum State. The Court adopted the latter view, saying that it had not been the intention of the Constitution merely to reenact the common law--that is, the principles of private international law--as to the reception of foreign judgments, but to amplify and fortify these.[5] And in Hampton v. McConnell[6] some years later, Chief Justice Marshall went even further, using language which seems to show that he regarded the judgment of a State court as constitutionally entitled to be accorded in the courts of sister States not simply the faith and credit of conclusive evidence, but the validity of a final judgment.

When, however, the next important case arose, the Court has come under new influences. This was McElmoyle v. Cohen,[7] decided in 1839, in which the issue was whether a statute of limitations of the State of Georgia, which applied only to judgments obtained in courts other than those of Georgia, could constitutionally bar an action in Georgia on a judgment rendered by a court of record of South Carolina. Declining to follow Marshall's lead in Hampton v. McConnell, the Court held that the Constitution was not intended "materially to interfere with the essential attributes of the lex fori"; that the act of Congress only established a rule of evidence, of conclusive evidence to be sure, but still of evidence only; and that it was necessary, in order to carry into effect in a State the judgment of a court of a sister State, to institute a fresh action in the court of the former, in strict compliance with its laws; and that consequently, when remedies were sought in support of the rights accruing in another jurisdiction, they were governed by the lex fori. In accord with this holding it has been further held that foreign judgments enjoy, not the right of priority or privilege or lien which they have in the State where they are pronounced, but only that which the lex fori gives them by its own laws, in their character of foreign judgments.[8] A judgment of a State court, in a cause within its jurisdiction, and against a defendant lawfully summoned, or against lawfully attached property of an absent defendant, is entitled to as much force and effect against the person summoned or the property attached, when the question is presented for decision in a court in another State, as it has in the State in which it was rendered.[9]

A judgment enforceable in the State where rendered must be given effect in the other State, although the modes of procedure to enforce its collection may not be the same in both States.[10] If the court has acquired jurisdiction, the judgment is entitled to full faith and credit though the court may not be able to enforce it by execution in the State in which it was rendered, as where the defendant left the State after service upon him and took all his property with him. While the want of power to enforce a judgment or decree may afford a reason against entertaining jurisdiction, it has nothing to do with the validity of a judgment or decree when made.[11] In the words of the Court in a recent case: "A cause of action on a judgment is different from that upon which the judgment was entered. In a suit upon a money judgment for a civil cause of action, the validity of the claim upon which it was founded is not open to inquiry, whatever its genesis. Regardless of the nature of the right which gave rise to it, the judgment is an obligation to pay money in the nature of a debt upon a specialty. Recovery upon it can be resisted only on the grounds that the court which rendered it was without jurisdiction, * * * or that it has ceased to be obligatory because of payment or other discharge * * * or that it is a cause of action for which the State of the forum has not provided a court * * *"[12]

On the other hand, the clause is not violated when a judgment is disregarded because it is not conclusive of the issues before a court of the forum. Conversely, no greater effect can be given than is given in the State where rendered. Thus an interlocutory judgment may not be given the effect of a final judgment.[13] Likewise when a federal court does not attempt to foreclose the State court from hearing all matters of personal defense which landowners might plead, a State court may refuse to accept the former's judgment as determinative of the landowners' liabilities.[14] Similarly, though a confession of judgment upon a note, with a warrant of attorney annexed, in favor of the holder, is in conformity with a State law and usage as declared by the highest court of the State in which the judgment is rendered, the judgment may be collaterally impeached upon the ground that the party in whose behalf it was rendered was not in fact the holder.[15] But a consent decree, which under the law of the State has the same force and effect as a decree in invitum, must be given the same effect in the courts of another State.[16]

One result produced by not following Hampton v. McConnell is that even nowadays the Court is sometimes confronted with the contention that a State need not provide a forum for some particular type of judgment from a sister State, a claim which it has by no means met with clear-cut principles. Thus in one case it held that a New York statute forbidding foreign corporations doing a domestic business to sue on causes originating outside the State was constitutionally applicable to prevent such a corporation from suing on a judgment obtained in a sister State.[17] But in a later case it ruled that a Mississippi statute forbidding contracts in cotton futures could not validly close the courts of the State to an action on a judgment obtained in a sister State on such a contract, although the contract in question had been entered into in the forum State and between its citizens.[18] Following the later rather than the earlier precedent, subsequent cases[19] have held: (1) that a State may adopt such system of courts and form of remedy as it sees fit, but cannot, under the guise of merely affecting the remedy, deny enforcement of claims otherwise within the protection of the full faith and credit clause when its courts have general jurisdiction of the subject matter and the parties;[20] (2) that, accordingly, a forum State, which has a shorter period of limitations than the State in which a judgment was granted and later reviewed, erred in concluding that, whatever the effect of the revivor under the law of the State of origin, it could refuse enforcement of the revived judgment;[21] (3) that the courts of one State have no jurisdiction to enjoin the enforcement of judgments at law obtained in another State, when the same reasons assigned for granting the restraining order were passed upon on a motion for new trial in the action at law and the motion denied;[22] (4) that the constitutional mandate requires credit to be given to a money judgment rendered in a civil cause of action in another State, even though the forum State would have been under no duty to entertain the suit on which the judgment was founded, inasmuch as a State cannot, by the adoption of a particular rule of liability or of procedure, exclude from its courts a suit on a judgment;[23] and (5) that similarly, tort claimants in State A, who obtain a judgment against a foreign insurance company, notwithstanding that, prior to judgment, domiciliary State B appointed a liquidator for the company, vested company assets in him, and ordered suits against the company stayed, are entitled to have such judgment recognized in State B for purposes of determining the amount of their claim, although not for determination of what priority, if any, their claim should have.[24] Moreover, there is no apparent reason why Congress, acting on the implications of Marshall's words in Hampton v. McConnell, should not clothe extrastate judgments of any particular type with the full status of domestic judgments of the same type in the several States.[25]

The Jurisdictional Prerequisite

The second great class of cases to arise under the full faith and credit clause comprises those raising the question whether a judgment for which extrastate operation was being sought, either as a basis of an action or as a defense in one, has been rendered with jurisdiction. Records and proceedings of courts wanting jurisdiction are not entitled to credit.[26] The jurisdictional question arises both in connection with judgments in personam against nonresident defendants upon whom it is alleged personal service was not obtained in the State of origin of the judgment, and in relation to judgments in rem against property or a status alleged not to have been within the jurisdiction of the Court which handed down the original decree.[27]

JUDGMENTS IN PERSONAM

The pioneer case is that of D'Arcy v. Ketchum,[28] decided in 1850. The question presented was whether a judgment rendered by a New York court under a statute which provided that, when joint debtors were sued and one of them was brought into court on a process, a judgment in favor of the plaintiff would entitle him to execute against all, and so must be accorded full faith and credit in Louisiana when offered as the basis of an action in debt against a resident of that State who had not been served by process in the New York action. Pressed with the argument that by "the immutable principles of justice" no man's rights should be impaired without his being given an opportunity to defend them, the Court ruled that, interpreted in the light of the principles of "international law and comity" as they existed in 1790, the act of Congress of that year did not reach the case.[29] The truth is that the decision virtually amended the act, for had the Louisiana defendant ventured to New York, he could, as the Constitution of the United States then stood, have been subjected to the judgment of the same extent as the New York defendant who had been personally served. Subsequently, this disparity between the operation of a personal judgment in the home State and a sister State has been eliminated, thanks to the adoption of the Fourteenth Amendment. In divorce cases, however, it still persists in some measure. (See pp. 662-670.)

In Pennoyer v. Neff,[30] decided in 1878, and so under the amendment, the Court held that a judgment given in a case in which the State court had endeavored to acquire jurisdiction of a nonresident defendant by an attachment upon property of his within the State and constructive notice to him, had not been rendered with jurisdiction and hence could not afford the basis of an action in the court of another State against such defendant, although it bound him so far as the property attached was concerned, on account of the inherent right of a State to assist its own citizens in obtaining satisfaction of their just claims. Nor would such a judgment, the Court further indicated, be due process of law to any greater extent in the State where rendered. In the words of a later case, "an ordinary personal judgment for money, invalid for want of service amounting to due process of law, is as ineffective in the State as outside of it."[31]

THE JURISDICTIONAL QUESTION

In short, when the subject matter of a suit is merely the determination of the defendant's liability, it is necessary that it should appear from the record that the defendant had been brought within the jurisdiction of the court by personal service of process, or his voluntary appearance, or that he had in some manner authorized the proceeding.[32] The claim that a judgment was "not responsive to the pleadings" raises the jurisdictional question;[33] but the fact that a nonresident defendant was only temporarily in the State when he was served in the original action does not vitiate the judgment rendered as the basis of an action in his home State.[34] Also, a judgment rendered in the State of his domicile against a defendant who, pursuant to the statute thereof providing for the service of process on absent defendants, was personally served in another State is entitled to full faith and credit.[35] Also, when the matter of fact or law on which jurisdiction depends was not litigated in the original suit, it is a matter to be adjudicated in the suit founded upon the judgment.[36]

Inasmuch as the principle of res judicata applies only to proceedings between the same parties and privies, the plea by defendant in an action based on a judgment that he was no party or privy to the original action raises the question of jurisdiction; and while a judgment against a corporation in one State may validly bind a stockholder in another State to the extent of the par value of his holdings,[37] an administrator acting under a grant of administration in one State stands in no sort of relation of priority to an administrator of the same estate in another State.[38] But where a judgment of dismissal was entered in a federal court in an action against one of two joint tortfeasors, in a State in which such a judgment would constitute an estoppel in another action in the same State against the other tort-feasor, such judgment is not entitled to full faith and credit in an action brought against the other tortfeasor in another State.[39]

SERVICE ON FOREIGN CORPORATIONS

In 1856 the Court decided Lafayette Insurance Co. v. French et al.,[40] a pioneer case in its general class. Here it was held that "where a corporation chartered by the State of Indiana was allowed by a law of Ohio to transact business in the latter State upon the condition that service of process upon the agent of the corporation should be considered as service upon the corporation itself, a judgment obtained against the corporation by means of such process" ought to receive in Indiana the same faith and credit as it was entitled to in Ohio.[41] Later cases establish under both the Fourteenth Amendment and article IV, section 1, that the cause of action must have arisen within the State obtaining service in this way,[42] that service on an officer of a corporation, not its resident agent and not present in the State in an official capacity, will not confer jurisdiction over the corporation;[43] that the question whether the corporation was actually "doing business" in the State may be raised.[44] On the other hand, the fact that the business was interstate is no objection.[45]

SERVICE ON OUT-OF-STATE OWNERS OF MOTOR VEHICLES

By analogy to the above cases, it has been held that a State may require nonresident owners of motor vehicles to designate an official within the State as an agent upon whom process may be served in any legal proceedings growing out of their operation of a motor vehicle within the State;[46] and while these cases arose under the Fourteenth Amendment alone, unquestionably a judgment validly obtained upon this species of service could be enforced upon the owner of a car through the courts of his home State.

JUDGMENTS IN REM

In sustaining the challenge to jurisdiction in cases involving judgments in personam, the Court was in the main making only a somewhat more extended application of recognized principles. In order to sustain the same kind of challenge in cases involving judgments in rem it has had to make law outright. The leading case is Thompson v. Whitman,[47] decided in 1874. Thompson, sheriff of Monmouth County, New Jersey, acting under a New Jersey statute, had seized a sloop belonging to Whitman, and by a proceeding in rem had obtained its condemnation and forfeiture in a local court. Later, Whitman, a citizen of New York, brought an action for trespass against Thompson in the United States Circuit Court for the Southern District of New York, and Thompson answered by producing a record of the proceedings before the New Jersey tribunal. Whitman thereupon set up the contention that the New Jersey court had acted without jurisdiction inasmuch as the sloop which was the subject matter of the proceedings had been seized outside the county to which, by the statute under which it had acted, its jurisdiction was confined.

Thompson v. Whitman

As previously explained, the plea of lack of privity cannot be set up in defense in a sister State against a judgment in rem. It is, on the other hand, required of a proceeding in rem that the res be within the court's jurisdiction, and this, it was urged, had not been the case in Thompson v. Whitman. Could, then, the Court consider this challenge with respect to a judgment which was offered not as the basis for an action for enforcement through the courts of a sister State, but merely as a defense in a collateral action? As the law stood in 1873, it apparently could not.[48] All difficulties, nevertheless, to its consideration of the challenge to jurisdiction in the case were brushed aside by the Court. Whenever, it said, the record of a judgment rendered in a State court is offered "in evidence" by either of the parties to an action in another State, it may be contradicted as to the facts necessary to sustain the former court's jurisdiction; "and if it be shown that such facts did not exist, the record will be a nullity, notwithstanding the claim that they did exist."[49]

Divorce Decrees

THE JURISDICTIONAL PREREQUISITE: DOMICILE

This however, was only the beginning of the court's lawmaking in cases in rem. The most important class of such cases is that in which the respondent to a suit for divorce offers in defense an earlier decree from the courts of a sister State. By the almost universally accepted view prior to 1906 a proceeding in divorce was one against the marriage status, i.e., in rem, and hence might be validly brought by either party in any State where he or she was bona fide domiciled;[50] and, conversely, when the plaintiff did not have a bona fide domicile in the State, a court could not render a decree binding in other States even if the nonresident defendant entered a personal appearance.[51] But in 1906 the Court discovered, by a vote of five-to-four, a situation in which a divorce proceeding is one in personam.

Haddock v. Haddock

The case referred to is Haddock v. Haddock,[52] while the earlier rule is illustrated by Atherton v. Atherton,[53] decided five years previously. In the latter it was held, in the former denied, that a divorce granted a husband without personal service upon the wife, who at the time was residing in another State, was entitled to recognition under the full faith and credit clause and the acts of Congress; the difference between the cases consisting solely in the fact that in the Atherton case the husband had driven the wife from their joint home by his conduct, while in the Haddock case he had deserted her. The Court which granted the divorce in Atherton v. Atherton was held to have had jurisdiction of the marriage status, with the result that the proceeding was one in rem and hence required only service by publication upon the respondent. Haddock's suit, on the contrary, was held to be as to the wife in personam, and so to require personal service upon her, or her voluntary appearance, neither of which had been had; although, notwithstanding this, the decree in the latter case was held to be valid as to the State where obtained on account of the State's inherent power to determine the status of its own citizens. The upshot was a situation in which a man and a woman, when both were in Connecticut, were divorced; when both were in New York, were married; and when the one was in Connecticut and the other in New York, the former was divorced and the latter married. In Atherton v. Atherton the Court had earlier acknowledged that "a husband without a wife, or a wife without a husband, is unknown to the law."

EMERGENCE OF THE DOMICILE QUESTION

The practical difficulties and distresses likely to result from such anomalies were pointed out by critics of the decision at the time. In point of fact, they have been largely avoided, because most of the State courts have continued to give judicial recognition and full faith and credit to one another's divorce proceedings on the basis of the older idea that a divorce proceeding is one in rem, and that if the applicant is bona fide domiciled in the State the court has jurisdiction in this respect. Moreover, until the second of the Williams v. North Carolina cases[54] was decided in 1945, there had not been manifested the slightest disposition to challenge judicially the power of the States to determine what shall constitute domicile for divorce purposes. Shortly prior thereto, in 1938, the Court in Davis v. Davis[55] rejected contentions adverse to the validity of a Virginia decree of which enforcement was sought in the District of Columbia. In this case, a husband, after having obtained in the District a decree of separation subject to payment of alimony, established years later a residence in Virginia, and sued there for a divorce. Personally served in the District, where she continued to reside, the wife filed a plea denying that her husband was a resident of Virginia and averred that he was guilty of a fraud on the court in seeking to establish a residence for purposes of jurisdiction. In ruling that the Virginia decree, granting to the husband an absolute divorce minus any alimony payment, was enforceable in the District, the Court stated that in view of the wife's failure, while in Virginia litigating her husband's status to sue, to answer the husband's charges of wilful desertion, it would be unreasonable to hold that the husband's domicile in Virginia was not sufficient to entitle him to a divorce effective in the District. The finding of the Virginia court on domicile and jurisdiction was declared to bind the wife. Davis v. Davis is distinguishable from the Williams v. North Carolina decisions in that in the former, determination of the jurisdictional prerequisite of domicile was made in a contested proceeding, while in the Williams cases it was not.

Williams I and II

In the Williams I and Williams II cases, the husband of one marriage and the wife of another left North Carolina, obtained six-week divorce decrees in Nevada, married there, and resumed their residence in North Carolina where both previously had been married and domiciled. Prosecuted for bigamy, the defendants relied upon their Nevada decrees; and won the preliminary round of this litigation; that is, Williams I,[56] when a majority of the justices, overruling Haddock v. Haddock, declared that in this case, the Court must assume that the petitioners for divorce had a bona fide domicile in Nevada, and not that their Nevada domicile was a sham. "* * * each State, by virtue of its command over its domiciliaries and its large interest in the institution of marriage, can alter within its own borders the marriage status of the spouse domiciled there, even though the other spouse is absent. There is no constitutional barrier if the form and nature of substituted service meet the requirements of due process." Accordingly, a decree granted by Nevada to one, who, it is assumed, is at the time bona fide domiciled therein, is binding upon the courts of other States, including North Carolina in which the marriage was performed and where the other party to the marriage is still domiciled when the divorce was decreed. In view of its assumptions, which it justified on the basis of an inadequate record, the Court did not here pass upon the question whether North Carolina had the power to refuse full faith and credit to a Nevada decree because it was based on residence rather than domicile; or because, contrary to the findings of the Nevada court, North Carolina found that no bona fide domicile had been acquired in Nevada.[57]

Presaging what ruling the Court would make when it did get around to passing upon the latter question, Justice Jackson, dissenting in Williams I, protested that "this decision repeals the divorce laws of all the States and substitutes the law of Nevada as to all marriages one of the parties to which can afford a short trip there. * * * While a State can no doubt set up its own standards of domicile as to its internal concerns, I do not think it can require us to accept and in the name of the Constitution impose them on other States. * * * The effect of the Court's decision today--that we must give extraterritorial effect to any judgment that a state honors for its own purposes--is to deprive this Court of control over the operation of the full faith and credit and the due process clauses of the Federal Constitution in cases of contested jurisdiction and to vest it in the first State to pass on the facts necessary to jurisdiction."[58]

Notwithstanding that one of the deserted spouses had died since the initial trial and that another had remarried, North Carolina, without calling into question the status of the latter marriage began a new prosecution for bigamy; and when the defendants appealed the conviction resulting therefrom, the Supreme Court, in Williams II,[59] sustained the adjudication of guilt as not denying full faith and credit to the Nevada divorce decree. Reiterating the doctrine that jurisdiction to grant divorce is founded on domicile,[60] a majority of the Court held that a decree of divorce rendered in one State may be collaterally impeached in another by proof that the court which rendered the decree lacked jurisdiction (the parties not having been domiciled therein), even though the record of proceedings in that court purports to show jurisdiction.[61]

CASES INVOLVING CLAIMS FOR ALIMONY OR PROPERTY ARISING IN FORUM STATE

In Esenwein v. Commonwealth,[62] decided on the same day as the second Williams Case, the Supreme Court also sustained a Pennsylvania court in its refusal to recognize an ex parte Nevada decree on the ground that the husband who obtained it never acquired a bona fide domicile in the latter State. In this instance, the husband and wife had separated in Pennsylvania, where the wife was granted a support order; and after two unsuccessful attempts to win a divorce in that State, the husband departed for Nevada. Upon the receipt of a Nevada decree, the husband thereafter established a residence in Ohio, and filed an action in Pennsylvania for total relief from the support order. In a concurring opinion, in which he was joined by Justices Black and Rutledge, Justice Douglas stressed the "basic difference between the problem of marital capacity and the problem of support," and stated that it was "not apparent that the spouse who obtained the decree can defeat an action for maintenance or support in another State by showing that he was domiciled in the State which awarded him the divorce decree," unless the other spouse appeared or was personally served. "The State where the deserted wife is domiciled has a deep concern in the welfare of the family deserted by the head of the household. If he is required to support his former wife, he is not made a bigamist and the offspring of his second marriage are not bastardized." Or as succinctly stated by Justice Rutledge, "the jurisdictional foundation for a decree in one State capable of foreclosing an action for maintenance or support in another may be different from that required to alter the marital status with extraterritorial effect."[63]

Three years later, but on this occasion as spokesman for a majority of the Court, Justice Douglas reiterated these views in the case of Estin v. Estin.[64] Even though it acknowledged the validity of an ex parte Nevada decree obtained by a husband, New York was held not to have denied full faith and credit to said decree when, subsequently thereto, it granted the wife a judgment for arrears in alimony founded upon a decree of separation previously awarded to her when both she and her husband were domiciled in New York. The Nevada decree, issued to the husband after he had resided there a year and upon constructive notice to the wife in New York who entered no appearance, was held to be effective only to change the marital status of both parties in all States of the Union but ineffective on the issue of alimony. Divorce, in other words, was viewed as being divisible; and Nevada, in the absence of acquiring jurisdiction over the wife, was held incapable of adjudicating the rights of the wife in the prior New York judgment awarding her alimony. Accordingly, the Nevada decree could not prevent New York from applying its own rule of law which, unlike that of Pennsylvania,[65] does permit a support order to survive a divorce decree.[66] Such a result was justified as accommodating the interests of both New York and Nevada in the broken marriage by restricting each State to matters of her dominant concern, the concern of New York being that of protecting the abandoned wife against impoverishment.

RECENT CASES

Fears registered by the dissenters in the second Williams Case that the stability of all divorces might be undermined thereby and that thereafter the court of each forum State, by its own independent determination of domicile, might refuse recognition of foreign decrees were temporarily set at rest by the holding in Sherrer v. Sherrer,[67] wherein Massachusetts, a state of domiciliary origin, was required to accord full faith and credit to a 90-day Florida decree which had been contested by the husband. The latter, upon receiving notice by mail, retained Florida counsel who entered a general appearance and denied all allegations in the complaint, including the wife's residence. At the hearing the husband, though present in person and by counsel, did not offer evidence in rebuttal of the wife's proof of her Florida residence; and when the Florida court ruled that she was a bona fide resident, the husband did not appeal. Inasmuch as the findings of the requisite jurisdictional facts, unlike those in the Second Williams Case, were made in proceedings in which the defendant appeared and participated, the requirements of full faith and credit were held to bar him from collaterally attacking such findings in a suit instituted by him in his home State of Massachusetts, particularly in the absence of proof that the divorce decree was subject to such collateral attack in a Florida court. Having failed to take advantage of the opportunities afforded him by his appearance in the Florida proceeding, the husband was thereafter precluded from re-litigating in another State the issue of his wife's domicile already passed upon by the Florida court.

In Coe v. Coe,[68] embracing a similar set of facts, the Court applied like reasoning to reach a similar result. Massachusetts again was compelled to recognize the validity of a six-week Nevada decree obtained by a husband who had left Massachusetts after a court of that State had refused him a divorce and had granted his wife separate support. In the Nevada proceeding, the wife appeared personally and by counsel filed a cross-complaint for divorce, admitted the husband's residence, and participated personally in the proceedings. After finding that it had jurisdiction of the plaintiff, defendant, and the subject matter involved, the Nevada court granted the wife a divorce, which was valid, final, and not subject to collateral attack under Nevada law. The husband married again, and on his return to Massachusetts, his ex-wife petitioned the Massachusetts court to adjudge him in contempt for failing to make payments for her separate support under the earlier Massachusetts decree. Inasmuch as there was no intimation that under Massachusetts law a decree of separate support would survive a divorce, recognition of the Nevada decree as valid accordingly necessitated a rejection of the ex-wife's contention.

Appearing to revive Williams II, and significant for the social consequences produced by the result decreed therein, is the recent case of Rice v. Rice.[69] To determine the widowhood status of the party litigants in relation to inheritance of property of a husband who had deserted his first wife in Connecticut, had obtained an ex parte divorce in Nevada, and after remarriage, had died without ever returning to Connecticut, the first wife, joining the second wife and the administrator of his estate as defendants, petitioned a Connecticut court for a declaratory judgment. After having placed upon the first wife the burden of proving that the decedent had not acquired a bona fide domicile in Nevada, and after giving proper weight to the claims of power by the Nevada court, the Connecticut court concluded that the evidence sustained the contentions of the first wife; and in so doing, it was upheld by the Supreme Court. The cases of Sherrer v. Sherrer, 334 U.S. 343 (1948) and Coe v. Coe, 334 U.S. 378 (1948), previously discussed, were declared not to be in point; inasmuch as no personal service was made upon the first wife, nor did she in any way participate in the Nevada proceedings. She was not, therefore, precluded from challenging the finding of the Nevada court that the decedent was, at the time of the divorce, domiciled in that State.[70]

STATE OF THE LAW TODAY: QUAERE

Upon summation one may speculate as to whether the doctrine of divisible divorce, as developed by Justice Douglas in Estin v. Estin, 334 U.S. 541 (1948), has not become the prevailing standard for determining the enforceability of foreign divorce decrees. If such be the case, it may be tenable to assert that an ex parte divorce, founded upon acquisition of domicile by one spouse in the State which granted it, is effective to destroy the marital status of both parties in the State of domiciliary origin and probably in all other States and therefore to preclude subsequent prosecutions for bigamy, but not to alter rights as to property, alimony, or custody of children in the State of domiciliary origin of a spouse who was neither served nor personally appeared.

DECREES AWARDING ALIMONY, CUSTODY OF CHILDREN

Resulting as a by-product of divorce litigation are decrees for the payment of alimony, judgments for accrued and unpaid instalments of alimony, and judicial awards of the custody of children, all of which necessitate application of the full faith and credit clause when extrastate enforcement is sought for them. Thus a judgment in State A for alimony in arrears and payable under a prior judgment of separation which is not by its terms conditional, nor subject by the law of State A to modification or recall, and on which execution was directed to issue, is entitled to recognition in the forum State. Although an obligation for accrued alimony could have been modified or set aside in State A prior to its merger in the judgment, such a judgment, by the law of State A, is not lacking in finality.[71] As to the finality of alimony decrees in general, the Court had previously ruled that where such a decree is rendered, payable in future instalments, the right to such instalments becomes absolute and vested on becoming due, provided no modification of the decree has been made prior to the maturity of the instalments.[72] However, a judicial order requiring the payment of arrearages in alimony, which exceeded the alimony previously decreed, is invalid for want of due process, the respondent having been given no opportunity to contest it.[73] "A judgment obtained in violation of procedural due process," said Chief Justice Stone, "is not entitled to full faith and credit when sued upon in another jurisdiction."[74]

A recent example of a custody case was one involving a Florida divorce decree which was granted ex parte to a wife who had left her husband in New York, where he was served by publication. The decree carried with it an award of the exclusive custody of the child, whom the day before the husband had secretly seized and brought back to New York. The Court ruled that the decree was adequately honored by a New York court when, in habeas corpus proceedings, it gave the father rights of visitation and custody of the child during stated periods, and exacted a surety bond of the wife conditioned on her delivery of the child to the father at the proper times,[75] it having not been "shown that the New York court in modifying the Florida decree exceeded the limits permitted under Florida law. There is therefore a failure of proof that the Florida decree received less credit in New York than it had in Florida."

COLLATERAL ATTACK BY CHILD

A Florida divorce decree was also at the bottom of another recent case in which the daughter of a divorced man by his first wife, and his legatee under his will, sought to attack his divorce in the New York courts, and thereby indirectly his third marriage. The Court held that inasmuch as the attack would not have been permitted in Florida under the doctrine of res judicata, it was not permissible under the full faith and credit clause in New York.[76] On the whole, it appears that the principle of res judicata is slowly winning out against the principle of domicile.

Decrees of Other Types

PROBATE DECREES

Many judgments, enforcement of which has given rise to litigation, embrace decrees of courts of probate respecting the distribution of estates. In order that a court have jurisdiction of such a proceeding, the decedent must have been domiciled in the State, and the question whether he was so domiciled at the time of his death may be raised in the court of a sister State.[77] Thus, when a court of State A, in probating a will and issuing letters, in a proceeding to which all distributees were parties, expressly found that the testator's domicile at the time of death was in State A, such adjudication of domicile was held not to bind one subsequently appointed as domiciliary administrator c.t.a. in State B, in which he was liable to be called upon to deal with claims of local creditors and that of the State itself for taxes, he having not been a party to the proceeding in State A. In this situation, it was held, a court of State C, when disposing of local assets claimed by both personal representatives, was free to determine domicile in accordance with the law of State C.[78] Similarly, there is no such relation of privity between an executor appointed in one State and an administrator c.t.a. appointed in another State as will make a decree against the latter binding upon the former.[79] On the other hand, judicial proceedings in one State, under which inheritance taxes have been paid and the administration upon the estate has been closed, are denied full faith and credit by the action of a probate court in another State in assuming jurisdiction and assessing inheritance taxes against the beneficiaries of the estate, when under the law of the former State the order of the probate court barring all creditors who had failed to bring in their demand from any further claim against the executors was binding upon all.[80]

What is more important, however, is that the res in such a proceeding, that is, the estate, in order to entitle the judgment to recognition under article IV, section 1, must have been located in the State or legally attached to the person of the decedent. Such a judgment is accordingly valid, generally speaking, to distribute the intangible property of the decedent, though the evidences thereof were actually located elsewhere.[81] This is not so, on the other hand, as to tangibles and realty. In order that the judgment of a probate court distributing these be entitled to recognition under the Constitution, they must have been located in the State; as to tangibles and realty outside the State, the decree of the probate court is entirely at the mercy of the lex rei sitae.[82] So, the probate of a will in one State, while conclusive therein, does not displace legal provisions necessary to its validity as a will of real property in other States.[83]

ADOPTION DECREES

That a statute legitimizing children born out of wedlock does not entitle them by the aid of the full faith and credit clause to share in the property located in another State is not surprising, in view of the general principle--to which, however, there are exceptions (see pp. 675-682)--that statutes do not have extraterritorial operation.[84] For the same reason adoption proceedings in one State are not denied full faith and credit by the law of the sister State which excludes children adopted by proceedings in other States from the right to inherit land therein.[85]

GARNISHMENT DECREES

A proceeding which combines some of the elements of both an in rem and an in personam action is the proceeding in garnishment cases. Suppose that A owes B and B owes C, and that the two former live in a different State than C. A, while on a brief visit to C's State, is presented with a writ attaching his debt to B and also a summons to appear in court on a named day. The result of the proceedings thus instituted is that a judgment is entered in C's favor against A to the amount of his indebtedness to B. Subsequently A is sued by B in their home State, and offers the judgment, which he has in the meantime paid, in defense. It was argued in behalf of B that A's debt to him had a situs in their home State, and furthermore that C could not have sued B in this same State without formally acquiring a domicile there. Both propositions were, however, rejected by the Court, which held that the judgment in the garnishment proceedings was entitled to full faith and credit as against C's action.[86]

FRAUD AS A DEFENSE TO SUITS ON FOREIGN JUDGMENTS

As to whether recognition of a State judgment can be refused by the forum State on other than jurisdictional grounds, there are dicta to the effect that judgments, for which extraterritorial operation is demanded under article IV, section I and acts of Congress, are "impeachable for manifest fraud." But unless the fraud affected the jurisdiction of the court, the vast weight of authority is against the proposition. Also it is universally agreed that a judgment may not be impeached for alleged error or irregularity,[87] or as contrary to the public policy of the State where recognition is sought for it under the full faith and credit clause.[88] Previously listed cases indicate, however, that the Court has in fact permitted local policy to determine the merits of a judgment under the pretext of regulating jurisdiction.[89] Thus in one case, Cole v. Cunningham,[90] the Court sustained a Massachusetts court in enjoining, in connection with insolvency proceedings instituted in that State, a Massachusetts creditor from continuing in New York courts an action which had been commenced there before the insolvency suit was brought. This was done on the theory that a party within the jurisdiction of a court may be restrained from doing something in another jurisdiction opposed to principles of equity, it having been shown that the creditor was aware of the debtor's embarrassed condition when the New York action was instituted. The injunction unquestionably denied full faith and credit and commanded the assent of only five Justices.

PENAL JUDGMENTS: TYPES ENTITLED TO RECOGNITION

Finally, the clause has been interpreted in the light of the "incontrovertible maxim" that "the courts of no country execute the penal laws of another."[91] In the leading case of Huntington v. Attrill,[92] however, the Court so narrowly defined "penal" in this connection as to make it substantially synonymous with "criminal," and on this basis held a judgment which had been recovered under a State statute making the officers of a corporation who signed and recorded a false certificate of the amount of its capital stock liable for all of its debts, to be entitled under article IV, section 1, to recognition and enforcement in the courts of sister States. Nor, in general, is a judgment for taxes to be denied full faith and credit in State and federal courts merely because it is for taxes.[93]

Recognition of Rights Based Upon Constitutions, Statutes, Common Law

THE EARLY RULE

As to the extrastate protection of rights which have not matured into final judgments, the full faith and credit clause has never abolished the general principle of the dominance of local policy over the rules of comity.[94] This was stated by Justice Nelson in the Dred Scott case, as follows: "No State, * * *, can enact laws to operate beyond its own dominions, * * * Nations, from convenience and comity, * * *, recognizes [sic] and administer the laws of other countries. But, of the nature, extent, and utility, of them, respecting property, or the state and condition of persons within her territories, each nation judges for itself; * * *" He added that it was the same with the States of the Union in relation to another. It followed that even though Dred had become a free man in consequence of his having resided in the "free" State of Illinois, he had nevertheless upon his return to Missouri, which had the same power as Illinois to determine its local policy respecting rights acquired extraterritorially, reverted to servitude under the laws and judicial decisions of that State.[95]

DEVELOPMENT OF THE MODERN RULE

In a case decided in 1887, however, the Court remarked: "Without doubt the constitutional requirement, Art. IV, Sec. I, that 'full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State,' implies that the public acts of every State shall be given the same effect by the courts of another State that they have by law and usage at home."[96] And this proposition was later held to extend to State constitutional provisions.[97] More recently this doctrine has been stated in a very mitigated form, the Court saying that where statute or policy of the forum State is set up as a defense to a suit brought under the statute of another State or territory, or where a foreign statute is set up as a defense to a suit or proceedings under a local statute, the conflict is to be resolved, not by giving automatic effect to the full faith and credit clause and thus compelling courts of each State to subordinate its own statutes to those of others, but by appraising the governmental interest of each jurisdiction and deciding accordingly.[98] Obviously this doctrine endows the Court with something akin to an arbitral function in the decision of cases to which it is applied.

TRANSITORY ACTIONS: DEATH STATUTES

The initial effort in this direction was made in connection with transitory actions based on statute. Earlier, such actions had rested upon the common law, which was fairly uniform throughout the States, so that there was usually little discrepancy between the law under which the plaintiff from another jurisdiction brought his action (lex loci) and the law under which the defendant responded (lex fori). In the late seventies, however, the States, abandoning the common law rule on the subject, began passing laws which authorized the representatives of a decedent whose death had resulted from injury to bring an action for damages.[99] The question at once presented itself whether, if such an action was brought in a State other than that in which the injury occurred, it was governed by the statute under which it arose or by the law of the forum State, which might be less favorable to the defendant. Nor was it long before the same question presented itself with respect to transitory action ex contractu, where the contract involved had been made under laws peculiar to the State where made, and with those laws in view.

ACTIONS UPON CONTRACT: WHEN GOVERNED BY LAW OF PLACE OF MAKING

In Chicago and Alton R.R. v. Wiggins,[100] referred to above, the Court, confronted with the latter form of the question, indicated its clear opinion that in such situations it was the law under which the contract was made, not the law of the forum State, which should govern. Its utterance on the point was, however, not merely obiter; it was based on an error, namely, the false supposition that the Constitution gives "acts" the same extraterritorial operation as the act of 1790 does "judicial records and proceedings." Notwithstanding which, this dictum is today the basis of "the settled rule" that the defendant in a transitory action is entitled to all the benefits resulting from whatever material restrictions the statute under which plaintiff's right of action originated sets thereto, except that courts of sister States cannot be thus prevented from taking jurisdiction in such cases.[101] However, a State court does not violate the full faith and credit clause by mere error in construing the law upon which a transitory action from another state depends;[102] nor is a court of the forum State guilty of a disregard thereof when it entertains a suit based on a statute of another State, albeit the statute in terms limits actions thereunder to courts of the enacting State.[103] Moreover, in actions on contracts made in other States, a State constitutionally may decline to enforce in its courts, as contrary to its own policy, the laws of such States relating to the right to add interest to the recovery as an incidental item of damages.[104]

STOCKHOLDER--CORPORATION RELATIONSHIP

Nor is it alone to defendants in transitory actions that the full faith and credit clause is today a shield and a buckler. Some legal relationships are so complex, the Court holds, that the law under which they were formed ought always to govern them as long as they persist.[105] One such relationship is that of a stockholder and his corporation. Hence, if a question arises as to the liability of the stockholders of a corporation, the courts of the forum State are required by the full faith and credit clause to determine the question in accordance with the Constitution, laws and judicial decisions of the corporation's home State.[106] Illustrative applications of the latter rule are to be found in the following cases. A New Jersey statute forbidding an action at law to enforce a stockholder's liability arising under the laws of another State, and providing that such liability may be enforced only in equity, and that in such a case the corporation, its legal representatives, all its creditors, and stockholders, should be necessary parties, was held not to preclude an action at law in New Jersey by the New York State superintendent of banks against 557 New Jersey stockholders in an insolvent New York bank to recover assessments made under the laws of New York.[107] Also, in a suit to enforce double liability, brought in Rhode Island against a stockholder in a Kansas trust company, the courts of Rhode Island were held to be obligated to extend recognition to the statutes and court decisions of Kansas whereunder it is established that a Kansas judgment recovered by a creditor against the trust company is not only conclusive as to the liability of the corporation but also an adjudication binding each stockholder therein. The only defenses available to the stockholder are those which he could make in a suit in Kansas.[108]

FRATERNAL BENEFIT SOCIETY--MEMBER RELATIONSHIP

And the same principle applies to the relationship which is formed when one takes out a policy in a "fraternal benefit society." Thus in Royal Arcanum v. Green,[109] in which a fraternal insurance association chartered under the laws of Massachusetts was being sued in the courts of New York by a citizen of the latter State on a contract of insurance made in that State, the Court held that the defendant company was entitled under the full faith and credit clause to have the case determined in accordance with the laws of Massachusetts and its own constitution and by-laws as these had been construed by the Massachusetts courts.

Nor has the Court manifested lately any disposition to depart from this rule. In Sovereign Camp v. Bolin[110] it declared that a State in which a certificate of life membership of a foreign fraternal benefit association is issued, which construes and enforces said certificate according to its own law rather than according to the law of the State in which the association is domiciled denies full faith and credit to the association's charter embodied in the statutes of the domiciliary State as interpreted by the latter's court. "The beneficiary certificate was not a mere contract to be construed and enforced according to the laws of the State where it was delivered. Entry into membership of an incorporated beneficiary society is more than a contract; it is entering into a complex and abiding relation and the rights of membership are governed by the law of the State of incorporation. [Hence] another State, wherein the certificate of membership was issued, cannot attach to membership rights against the society which are refused by the law of domicile." Consistently therewith, the Court also held, in Order of Travelers v. Wolfe,[111] that South Dakota, in a suit brought therein by an Ohio citizen against an Ohio benefit society, must give effect to a provision of the constitution of the society prohibiting the bringing of an action on a claim more than six months after disallowance by the society, notwithstanding that South Dakota's period of limitation was six years and that its own statutes voided contract stipulations limiting the time within which rights may be enforced. Objecting to these results, Justice Black dissented on the ground that fraternal insurance companies are not entitled, either by the language of the Constitution, or by the nature of their enterprise, to such unique constitutional protection.

INSURANCE COMPANY, BUILDING AND LOAN ASSOCIATION--CONTRACTUAL RELATIONSHIPS

Whether or not distinguishable by nature of their enterprise, stock and mutual insurance companies and mutual building and loan associations, unlike fraternal benefit societies, have not been accorded the same unique constitutional protection; and, with few exceptions,[112] have had controversies arising out of their business relationships settled by application of the law of the forum State. In National Mutual B. & L. Asso. v. Brahan,[113] the principle applicable to these three forms of business organization was stated as follows: Where a corporation has become localized in a State and has accepted the laws of the State as a condition of doing business there, it cannot abrogate those laws by attempting to make contract stipulations, and there is no violation of the full faith and credit clause in instructing a jury to find according to local law notwithstanding a clause in a contract that it should be construed according to the laws of another State.

Thus, when a Mississippi borrower, having repaid a mortgage loan to a New York building and loan association, sued in a Mississippi court to recover, as usurious, certain charges collected by the association, the usury law of Mississippi rather than that of New York was held to control. In this case, the loan contract, which was negotiated in Mississippi subject to approval by the New York office, did not expressly state that it was governed by New York law.[114] Similarly, when the New York Life Insurance Company, which had expressly stated in its application and policy forms that they would be controlled by New York law, was sued in Missouri on a policy sold to a resident thereof, the court of that State was sustained in its application of Missouri rather than New York law.[115] Also, in an action in a federal court in Texas to collect the amount of a life insurance policy which had been made in New York and later changed by instruments assigning beneficial interest, it was held that questions: (1) whether the contract remained one governed by the law of New York with respect to rights of assignees, rather than by the law of Texas, (2) whether the public policy of Texas permits recovery by one named beneficiary who has no beneficial interest in the life of the insured, and (3) whether lack of insurable interest becomes material when the insurer acknowledges liability and pays the money into court, were questions of Texas law, to be decided according to Texas decisions.[116]

Consistent with the latter holdings are the following two involving mutual insurance companies. In Pink v. A.A.A. Highway Express,[117] the New York insurance commissioner, as a statutory liquidator of an insolvent auto mutual company organized in New York sued resident Georgia policyholders in a Georgia court to recover assessments alleged to be due by virtue of their membership in it. The Supreme Court held that, although by the law of the State of incorporation, policyholders of a mutual insurance company become members thereof and as such liable to pay assessments adjudged to be required in liquidation proceedings in that State, the courts of another State are not required to enforce such liability against local resident policyholders who did not appear and were not personally served in the foreign liquidation proceedings; but are free to decide according to local law the question whether, by entering into the policies, residents became members of the company. Again, in State Farm Ins. v. Duel,[118] the Court ruled that an insurance company chartered in State A, which does not treat membership fees as part of premiums, cannot plead denial of full faith and credit when State B, as a condition of entry, requires the company to maintain a reserve computed by including membership fees as well as premiums received in all States. Were the company's contention accepted, "no State," the Court observed, "could impose stricter financial standards for foreign corporations doing business within its borders than were imposed by the State of incorporation." It is not apparent, the Court added, that State A has an interest superior to that of State B in the financial soundness and stability of insurance companies doing business in State B,--which is obviously more the language of arbitration than of adjudication, as conventionally regarded.

WORKMEN'S COMPENSATION STATUTES

Finally, the relationship of employer and employee, so far as the obligations of the one and the rights of the other under workmen's compensation acts are concerned, has been the subject of similar treatment. In an earlier case,[119] the cause of action was an injury in New Hampshire, resulting in death to a workman who had entered the defendant company's employment in Vermont, the home State of both parties. The Court held that the case was governed under the full faith and credit clause by the Vermont workmen's compensation act, not that of New Hampshire. The relationship, it said, "was created by the law of Vermont, and so long as that relationship persisted its incidents were properly subject to regulation there."[120]

However, in an unacknowledged departure from this ruling the Court has subsequently held that the full faith and credit clause did not preclude California from disregarding a Massachusetts workmen's compensation statute and applying its own conflicting act in the case of an injury suffered by a Massachusetts employee of a Massachusetts employer while in California in the course of his employment.[121] The earlier case was distinguished as not having decided more than that a State statute, applicable to employer and employee within the State, which provides compensation if the employee is injured while temporarily in another State, will be given full faith and credit in the latter when not obnoxious to its policy. Inasmuch as the Court in the older decision is reputed to have observed that reliance on the Vermont statute, as a defense to the New Hampshire suit, was not obnoxious to the policy of New Hampshire, it may be possible to reconcile these two cases by stating that a foreign workmen's compensation statute will be recognized when it is invoked as a defense but need not be applied when the plaintiff endeavors to found his suit thereon.

Later decisions involving the recognition of a foreign workmen's compensation act include the following. In Magnolia Petroleum Co. v. Hunt[122] the Court ruled that a Louisiana employee of a Louisiana employer, who is injured on the job in Texas and who receives an award under the Texas Act, which does not grant further recovery to an employee who receives compensation under the laws of another State, cannot obtain additional compensation under the Louisiana Act. However, a compensation award by State A to a resident employee of a resident employer injured on the job in State B will not preclude State B from awarding added compensation under its own laws, when the compensation statute of State A does not expressly exclude recovery under a law of the State in which the injury occurred and when the State A award incorporated a private settlement contract wherein the employee reserved his rights in State B.[123] Also, the District of Columbia workmen's compensation act, which expressly covers an employee of the District employer, "irrespective of the place where the injury occurs," constitutionally may be applied, in the case of injury resulting in death, to a District resident, employed by a District employer, who was assigned to a job at Quantico, Virginia, and who, for three years prior to his death in Virginia, has commuted to the job site from his house in the District.[124]

Development of Section to Date and Possibilities

EVALUATION OF RESULTS

Thus the Court, from according an extrastate operation to statutes and judicial decisions in favor of defendants in transitory actions, proceeded next to confer the same protection upon certain classes of defendants in local actions in which the plaintiff's claim was the outgrowth of a relationship formed extraterritorially. But can the Court stop at this point? If it is true, as Chief Justice Marshall once remarked, that "the Constitution was not made for the benefit of plaintiffs alone," so also it is true that it was not made for the benefit of defendants alone. The day may come when the Court will approach the question of the relation of the full faith and credit clause to the extrastate operation of laws from the same angle as it today views the broader question of the scope of State legislative power. When and if this day arrives, State statutes and judicial decisions will be given such extraterritorial operation as seems reasonable to the Court to give them. In short, the rule of the dominance of local policy of the forum State will be superseded by that of judicial review.[125]

The question arises whether the application to date, not by the Court alone but by Congress and the Court, of article IV, section 1, can be said to have met the expectations of its framers. In the light of some things said at the time of the framing of the clause this may be doubted. The protest was raised against the clause that in vesting Congress with power to declare the effect State laws should have outside the enacting State, it enabled the new government to usurp the powers of the States; but the objection went unheeded. The main concern of the Convention, undoubtedly, was to render the judgments of the State courts in civil cases effective throughout the Union. Yet even this object has been by no means completely realized, owing to the doctrine of the Court that before a judgment of a State court can be enforced in a sister State, a new suit must be brought on it in the courts of the latter; and the further doctrine that with respect to such a suit, the judgment sued on is only evidence; the logical deduction from which proposition is that the sister State is under no constitutional compulsion to give it a forum. These doctrines were first clearly stated in the McElmoyle Case and flowed directly from the new States' rights premises of the Court; but they are no longer in harmony with the prevailing spirit of constitutional construction nor with the needs of the times. Also, the clause seems always to have been interpreted on the basis of the assumption that the term "judicial proceedings" refers only to final judgments and does not include intermediate processes and writs; but the assumption would seem to be groundless, and if it is, then Congress has the power under the clause to provide for the service and execution throughout the United States of the judicial processes of the several States.

SCOPE OF POWERS OF CONGRESS UNDER SECTION

Under the present system, suit has ordinarily to be brought where the defendant, the alleged wrongdoer, resides, which means generally where no part of the transaction giving rise to the action took place. What could be more irrational? "Granted that no state can of its own volition make its process run beyond its borders * * * is it unreasonable that the United States should by federal action be made a unit in the manner suggested?"[126]

Indeed, there are few clauses of the Constitution, the merely literal possibilities of which have been so little developed as the full faith and credit clause. Congress has the power under the clause to decree the effect that the statutes of one State shall have in other States. This being so, it does not seem extravagant to argue that Congress may under the clause describe a certain type of divorce and say that it shall be granted recognition throughout the Union, and that no other kind shall. Or to speak in more general terms, Congress has under the clause power to enact standards whereby uniformity of State legislation may be secured as to almost any matter in connection with which interstate recognition of private rights would be useful and valuable.

FULL FAITH AND CREDIT IN THE FEDERAL COURTS

As we saw earlier, the legislation of Congress comprised in section 905 of the Revised Statutes lays down a rule not merely for the recognition of the records and judicial proceedings of State courts in the courts of sister States, but for their recognition in "every court of the United States," and it further lays down a like rule for the records and proceedings of the courts "of any territory or any country subject to the jurisdiction of the United States." Thus the courts of the United States are bound to give to the judgments of the State courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of her sister States.[127] So, where suits to enforce the laws of one State are entertained in courts of another on principles of comity, federal district courts sitting in that State may entertain them, and should, if they do not infringe federal law or policy.[128] However, the refusal of a territorial court in Hawaii, having jurisdiction of the action, which was on a policy issued by a New York insurance company, to admit evidence that an administrator had been appointed and a suit brought by him on a bond in the federal court in New York wherein no judgment had been entered, did not violate this clause.[129]

The power to prescribe what effect shall be given to the judicial proceedings of the courts of the United States is conferred by other provisions of the Constitution, such as those which declare the extent of the judicial power of the United States, which authorize all legislation necessary and proper for executing the powers vested by the Constitution in the Government of the United States, and which declare the supremacy of the authority of the National Government within the limits of the Constitution. As part of its general authority, the power to give effect to the judgment of its courts is coextensive with its territorial jurisdiction.[130]

JUDGMENTS OF FOREIGN STATES

Doubtless Congress might also by virtue of its powers in the field of foreign relations lay down a mandatory rule regarding recognition of foreign judgments in every court of the United States. At present the duty to recognize judgments even in national courts rests only on comity and is qualified, in the judgment of the Supreme Court, by a strict rule of parity.[131]

Section 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.

The Comity Clause

SOURCES

The community of rights among the citizens of the several States guaranteed by this article is traceable to colonial days. It had its origin in the fact that the colonists were all subjects of the same monarch.[132] After the Declaration of Independence was signed, the question arose as to how to reconcile the advantages of a common citizenship with a dispersed sovereignty. One element of the solution is to be seen in the Fourth of the Articles of Confederation, which read as follows: "The better to secure and perpetuate mutual friendship and intercourse among the people of the different States in this Union, the free inhabitants of each of these States, paupers, vagabonds and fugitives from justice excepted, shall be entitled to all privileges and immunities of free citizens in the several States; and the people of each State shall have free ingress and regress to and from any other State, and shall enjoy therein all the privileges of trade and commerce, subject to the same duties, impositions and restrictions as the inhabitants thereof respectively * * *" Madison, writing in The Federalist,[133] adverted to the confusion engendered by use of the different terms "free inhabitants, free citizens," and "people" and by "superadding to 'all privileges and immunities of free citizens--all the privileges of trade and commerce,' * * *" The more concise phraseology of article IV, however, did little to dispel the uncertainty. In the Slaughter-House Cases,[134] Justice Miller suggested that it was to be regarded as the compendious equivalent of the earlier version: "There can be but little question that the purpose of both these provisions is the same, and that the privileges and immunities intended are the same in each. In the Articles of the Confederation we have some of these specifically mentioned, and enough perhaps to give some general ideal of the class of civil rights meant by the phrase."[135]

THEORIES AS TO ITS PURPOSE

First and last, at least four theories have been proffered regarding the purpose of this clause. The first is that the clause is a guaranty to the citizens of the different States of equal treatment by Congress--is, in other words, a species of equal protection clause binding on the National Government. The second is that the clause is a guaranty to the citizens of each State of all the privileges and immunities of citizenship that are enjoyed in any State by the citizens thereof,--a view which, if it had been accepted at the outset, might well have endowed the Supreme Court with a reviewing power over restrictive State legislation as broad as that which it later came to exercise under the Fourteenth Amendment. The third theory of the clause is that it guarantees to the citizen of any State the rights which he enjoys as such even when sojourning in another State, that is to say, enables him to carry with him his rights of State citizenship throughout the Union, without embarrassment by State lines. Finally, the clause is interpreted as merely forbidding any State to discriminate against citizens of other States in favor of its own. Though the first theory received some recognition in the Dred Scott Case,[136] particularly in the opinion of Justice Catron,[137] it is today obsolete. The second was specifically rejected in McKane v. Durston;[138] the third, in Detroit v. Osborne.[139] The fourth has become a settled doctrine of Constitutional Law.[140] In the words of Justice Miller in the Slaughter-House Cases,[141] the sole purpose of the comity clause was "to declare to the several States, that whatever these rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other States within your jurisdiction."[142] It follows that this section has no application in controversies between a State and its own citizens.[143] It is deemed to be infringed by a hostile discrimination against all nonresidents[144] but not by such differences of treatment between residents and nonresidents as the nature of the subject matter makes reasonable.[145]

HOW IMPLEMENTED

This clause is self-executory, that is to say, its enforcement is dependent upon the judicial process. It does not authorize penal legislation by Congress. Federal statutes prohibiting conspiracies to deprive any person of rights or privileges secured by State laws,[146] or punishing infractions by individuals of the right of citizens to reside peacefully in the several States, and to have free ingress into and egress from such States,[147] have been held void.

CITIZENS OF EACH STATE

A question much mooted before the Civil War was whether the term could be held to include free Negroes. In the Dred Scott Case,[148] the Court answered it in the negative. "Citizens of each State," Chief Justice Taney argued, meant citizens of the United States as understood at the time the Constitution was adopted, and Negroes were not then regarded as capable of citizenship. The only category of national citizenship added under the Constitution comprised aliens, naturalized in accordance with acts of Congress.[149] In dissent, Justice Curtis not only denied the Chief Justice's assertion that there were no Negro citizens of States in 1789, but further argued that while Congress alone could determine what classes of aliens should be naturalized, the several States retained the right to extend citizenship to classes of persons born within their borders who had not previously enjoyed citizenship, and that one upon whom State citizenship was thus conferred became a citizen of the State in the full sense of the Constitution.[150] So far as persons born in the United States, and subject to the jurisdiction thereof are concerned, the question was put at rest by the Fourteenth Amendment.

CORPORATIONS

At a comparatively early date the claim was made that a corporation chartered by a State and consisting of its citizens was entitled to the benefits of the comity clause in the transaction of business in other States. It was argued that the Court was bound to look beyond the act of incorporation and see who were the incorporators. If it found these to consist solely of citizens of the incorporating State, it was bound to permit them through the agency of the corporation, to exercise in other States such privileges and immunities as the citizens thereof enjoyed. In Bank of Augusta v. Earle[151] this view was rejected. The Supreme Court held that the comity clause was never intended "to give to the citizens of each State the privileges of citizens in the several States, and at the same time to exempt them from the liabilities which the exercise of such privileges would bring upon individuals who were citizens of the State. This would be to give the citizens of other States far higher and greater privileges than are enjoyed by the citizens of the State itself."[152] A similar result was reached in Paul v. Virginia,[153] but by a different course of reasoning. The Court there held that a corporation--in this instance, an insurance company--was "the mere creation of local law" and could "have no legal existence beyond the limits of the sovereignty"[154] which created it; even recognition of its existence by other States rested exclusively in their discretion. More recent cases have held that this discretion is qualified by other provisions of the Constitution, notably the commerce clause and the Fourteenth Amendment.[155] By reason of its similarity to the corporate form of organization, a Massachusetts trust has been denied the protection of this clause.[156]

ALL PRIVILEGES AND IMMUNITIES OF CITIZENS IN THE SEVERAL STATES

The classical judicial exposition of the meaning of this phrase is that of Justice Washington in Corfield v. Coryell,[157] which was decided by him on circuit in 1823. The question at issue was the validity of a New Jersey statute which prohibited "any person who is not, at the time, an actual inhabitant and resident in this State" from raking or gathering "clams, oysters or shells" in any of the waters of the State, on board any vessel "not wholly owned by some person, inhabitant of and actually residing in this State. * * * The inquiry is," wrote Justice Washington, "what are the privileges and immunities of citizens in the several States? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several States which compose this Union, * * *"[158] He specified the following rights as answering this description: "Protection by the Government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the Government may justly prescribe for the general good of the whole. The right of a citizen of one State to pass through, or to reside in any other State, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the State; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the State; * * *"[159]

After thus defining broadly the private and personal rights which were protected, Justice Washington went on to distinguish them from the right to a share in the public patrimony of the State. "* * * we cannot accede" the opinion proceeds, "to the proposition * * * that, under this provision of the Constitution, the citizens of the several States are permitted to participate in all the rights which belong exclusively to the citizens of any particular State, merely upon the ground that they are enjoyed by those citizens; much less, that in regulating the use of the common property of the citizens of such State, the legislature is bound to extend to the citizens of all other States the same advantages as are secured to their own citizens."[160] The right of a State to the fisheries within its borders he then held to be in the nature of a property right, held by the State "for the use of the citizens thereof;" the State was under no obligation to grant "co-tenancy in the common property of the State, to the citizens of all the other States."[161] The precise holding of this case was confirmed in McCready v. Virginia;[162] the logic of Geer v. Connecticut[163] extended the same rule to wild game, and Hudson County Water Co. v. McCarter[164] applied it to the running water of a State. In Toomer v. Witsell,[165] however, the Court refused to apply this rule to free-swimming fish caught in the three-mile belt off the coast of South Carolina. It held instead that "commercial shrimping in the marginal sea, like other common callings, is within the purview of the privileges and immunities clause" and that a heavily discriminatory license fee exacted from nonresidents was unconstitutional.[166] Universal practice has also established another exception to which the Court gave approval by a dictum in Blake v. McClung:[167] "A State may, by rule uniform in its operation as to citizens of the several States, require residence within its limits for a given time before a citizen of another State who becomes a resident thereof shall exercise the right of suffrage or become eligible to office."[168]

DISCRIMINATION IN PRIVATE RIGHTS

Not only has judicial construction of the comity clause excluded some privileges of a public nature from its protection; the courts have also established the proposition that the purely private and personal rights to which the clause admittedly extends are not in all cases beyond the reach of State legislation which differentiates citizens and noncitizens. Broadly speaking, these rights are held subject to the reasonable exercise by a State of its police power, and the Court has recognized that there are cases in which discrimination against nonresidents may be reasonably resorted to by a State in aid of its own public health, safety and welfare. To that end a State may restrict the right to sell insurance to persons who have resided within the State for a prescribed period of time.[169] It may require a nonresident who does business within the State[170] or who uses the highways of the State[171] to consent, expressly or by implication, to service of process on an agent within the State. Without violating this section, a State may limit the dower rights of a nonresident to lands of which the husband died seized while giving a resident dower in all lands held during the marriage,[172] or may leave the rights of nonresident married persons in respect of property within the State to be governed by the laws of their domicile, rather than by the laws it promulgates for its own residents.[173] But a State may not give a preference to resident creditors in the administration of the property of an insolvent foreign corporation.[174] An act of the Confederate Government, enforced by a State, to sequester a debt owed by one of its residents to a citizen of another State was held to be a flagrant violation of this clause.[175]

ACCESS TO COURTS

The right to sue and defend in the courts is one of the highest and most essential privileges of citizenship, and must be allowed by each State to the citizens of all other States to the same extent that it is allowed to its own citizens.[176] The constitutional requirement is satisfied if the nonresident is given access to the courts of the State upon terms which, in themselves, are reasonable and adequate for the enforcing of any rights he may have, even though they may not be technically the same as those accorded to resident citizens.[177] The Supreme Court upheld a State statute of limitations which prevented a nonresident from suing in the State's courts after expiration of the time for suit in the place where the cause of action arose,[178] and another such statute which suspended its operation as to resident plaintiff, but not as to nonresidents, during the period of the defendant's absence from the State.[179] A State law making it discretionary with the courts to entertain an action by a nonresident of the State against a foreign corporation doing business in the State, was sustained since it was applicable alike to citizens and noncitizens residing out of the State.[180] A statute permitting a suit in the courts of the State for wrongful death occurring outside the State, only if the decedent was a resident of the State, was sustained, because it operated equally upon representatives of the deceased whether citizens or noncitizens.[181]

TAXATION

A State may not, in the exercise of its taxing power, substantially discriminate between residents and nonresidents. A leading case is Ward v. Maryland,[182] in which the Court set aside a State law which imposed special taxes upon nonresidents for the privilege of selling within the State goods which were produced outside it. Likewise, a Tennessee statute which made the amount of the annual license tax exacted for the privilege of doing railway construction work dependent upon whether the person taxed had his chief office within or without the State, was found to be incompatible with the comity clause.[183] In Travis v. Yale and Towne Mfg. Co.,[184] the Court, while sustaining the right of a State to tax income accruing within its borders to nonresidents,[185] held the particular tax void because it denied to nonresidents exemptions which were allowed to residents. The "terms 'resident' and 'citizen' are not synonymous," wrote Justice Pitney, "* * * but a general taxing scheme * * * if it discriminates against all nonresidents, has the necessary effect of including in the discrimination those who are citizens of other States; * * *"[186] Where there was no discrimination between citizens and noncitizens, a State statute taxing the business of hiring persons within the State for labor outside the State, was sustained.[187] This section of the Constitution does not prevent a territorial government, exercising powers delegated by Congress, from imposing a discriminatory license tax on nonresident fishermen operating within its waters.[188]

However, what at first glance may appear to be a discrimination may turn out not to be when the entire system of taxation prevailing in the enacting State is considered. On the basis of over-all fairness, the Court sustained a Connecticut statute which required nonresident stockholders to pay a State tax measured by the full market value of their stock, while resident stockholders were subject to local taxation on the market value of that stock reduced by the value of the real estate owned by the corporation.[189] Occasional or accidental inequality to a nonresident taxpayer are not sufficient to defeat a scheme of taxation whose operation is generally equitable.[190] In an early case the Court brushed aside as frivolous the contention that a State violated this clause by subjecting one of its own citizens to a property tax on a debt due from a nonresident secured by real estate situated where the debtor resided.[191]

Clause 2. A person charged in any State With Treason, Felony, or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime.

Fugitives From Justice

DUTY TO SURRENDER

Although this provision is not in its nature self-executing, and there is no express grant to Congress of power to carry it into effect, that body passed a law shortly after the Constitution was adopted, imposing upon the Governor of each State the duty to deliver up fugitives from justice found in such State.[192] The Supreme Court has accepted this contemporaneous construction as establishing the validity of this legislation.[193] The duty to surrender is not absolute and unqualified; if the laws of the State to which the fugitive has fled have been put in force against him, and he is imprisoned there, the demands of those laws may be satisfied before the duty of obedience to the requisition arises.[194] In Kentucky v. Dennison[195] the Court held, moreover, that this statute was merely declaratory of a moral duty; that the Federal Government "has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; * * *"[196] and consequently that a federal court could not issue a mandamus to compel the governor of one State to surrender a fugitive to another. In 1934 Congress plugged the loophole exposed by this decision by making it unlawful for any person to flee from one State to another for the purpose of avoiding prosecution in certain cases.[197]

FUGITIVE FROM JUSTICE

To be a fugitive from justice within the meaning of this clause, it is not necessary that the party charged should have left the State after an indictment found, or for the purpose of avoiding a prosecution anticipated or begun. It is sufficient that the accused, having committed a crime within one State and having left the jurisdiction before being subjected to criminal process, is found within another State.[198] The motive which induced the departure is immaterial.[199] Even if he were brought involuntarily into the State where found by requisition from another State, he may be surrendered to a third State upon an extradition warrant.[200] A person indicted a second time for the same offense is nonetheless a fugitive from justice by reason of the fact that after dismissal of the first indictment, on which he was originally indicted, he left the State with the knowledge of, or without objection by, State authorities.[201] But a defendant cannot be extradited if he was only constructively present in the demanding State at the time of the commission of the crime charged.[202] For the purpose of determining who is a fugitive from justice, the words "treason, felony or other crime" embrace every act forbidden and made punishable by a law of a State,[203] including misdemeanors.[204]

PROCEDURE FOR REMOVAL

Only after a person has been charged with crime in the regular course of judicial proceedings is the governor of a State entitled to make demand for his return from another State.[205] The person demanded has no constitutional right to be heard before the governor of the State in which he is found on the question whether he has been substantially charged with crime and is a fugitive from justice.[206] The constitutionally required surrender is not to be interfered with by habeas corpus upon speculations as to what ought to be the result of a trial.[207] Nor is it proper thereby to inquire into the motives controlling the actions of the governors of the demanding and surrendering States.[208] Matters of defense, such as the running of the statute of limitations, cannot be heard on habeas corpus, but must be determined at the trial.[209] A defendant will, however, be discharged on habeas corpus if he shows by clear and satisfactory evidence that he was outside the demanding State at the time of the crime.[210] If, however, the evidence is conflicting, habeas corpus is not a proper proceeding to try the question of alibi.[211]

TRIAL OF FUGITIVE AFTER REMOVAL

There is nothing in the Constitution or laws of the United States which exempts an offender, brought before the courts of a State for an offense against its laws, from trial and punishment, even though he was brought from another State by unlawful violence,[212] or by abuse of legal process,[213] and a fugitive lawfully extradited from another State may be tried for an offense other than that for which he was surrendered.[214] The rule is different, however, with respect to fugitives surrendered by a foreign government pursuant to treaty. In that case the offender may be tried only "for the offence with which he is charged in the proceedings for his extradition, until a reasonable time and opportunity have been given him, after his release or trial upon such charge, to return to the country from whose asylum he had been forcibly taken under those proceedings."[215]

Clause 3. No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

This clause contemplated the existence of a positive unqualified right on the part of the owner of a slave which no State law could in any way regulate, control or restrain. Consequently the owner of a slave had the same right to seize and repossess him in another State, as the local laws of his own State conferred upon him, and a State law which penalized such seizure was held unconstitutional.[216] Congress had the power and the duty, which it exercised by the act of February 12, 1793,[217] to carry into effect the rights given by this Section,[218] and the States had no concurrent power to legislate on the subject.[219] However, a State statute providing a penalty for harboring a fugitive slave was held not to conflict with this clause since it did not affect the right or remedy either of the master or the slave; by it the State simply prescribed a rule of conduct for its own citizens in the exercise of its police power.[220]

Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or Parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.

Doctrine of the Equality of the States

"Equality of constitutional right and power is the condition of all the States of the Union, old and new."[221] This doctrine, now a truism of Constitutional Law, did not find favor in the Constitutional Convention. That body struck out from this section, as reported by the Committee on Detail, two sections to the effect that "... new States shall be admitted on the same terms with the original States. But the Legislature may make conditions with the new States concerning the public debt which shall be subsisting."[222] Opposing this action, Madison insisted that "the Western States neither would nor ought to submit to a union which degraded them from an equal rank with the other States."[223] Nonetheless, after further expressions of opinion pro and con, the Convention voted nine States to two to delete the requirement of equality.[224] Prior to this time, however, Georgia and Virginia had ceded to the United States large territories held by them, upon condition that new States should be formed therefrom, and admitted to the Union on an equal footing with the original States.[225] With the admission of Louisiana in 1812, the principle of equality was extended to States created out of territory purchased from a foreign power.[226] By the Joint Resolution of December 29, 1845, Texas "was admitted into the Union on an equal footing with the original States in all respects whatever."[227] Again and again, in adjudicating the rights and duties of States admitted after 1789, the Supreme Court has referred to the condition of equality as if it were an inherent attribute of the Federal Union.[228] Finally, in 1911, it invalidated a restriction on the change of location of the State capital, which Congress had imposed as a condition for the admission of Oklahoma, on the ground that Congress may not embrace in an enabling act conditions relating wholly to matters under State control.[229] In an opinion, from which Justices Holmes and McKenna dissented, Justice Lurton argued: "The power is to admit 'new States into this Union.' 'This Union' was and is a union of States, equal in power, dignity and authority, each competent to exert that residuum of sovereignty not delegated to the United States by the Constitution itself. To maintain otherwise would be to say that the Union, through the power of Congress to admit new States, might come to be a union of States unequal in power, as including States whose powers were restricted only by the Constitution, with others whose powers had been further restricted by an act of Congress accepted as a condition of admission."[230]

EARLIER SCOPE OF THE DOCTRINE

Until recently, however, the requirement of equality has applied primarily to political standing and sovereignty rather than to economic or property rights.[231] Broadly speaking, every new State is entitled to exercise all the powers of government which belong to the original States of the Union.[232] It acquires general jurisdiction, civil and criminal, for the preservation of public order, and the protection of persons and property throughout its limits except where it has ceded exclusive jurisdiction to the United States.[233] The legislative authority of a newly admitted State extends over federally owned land within the State, to the same extent as over similar property held by private owners, save that the State can enact no law which would conflict with the constitutional powers of the United States. Consequently it has jurisdiction to tax private activities carried on within the public domain, if the tax does not constitute an unconstitutional burden on the Federal Government.[234] Statutes applicable to territories, e.g., the Northwest Territory Ordinance of 1787, cease to have any operative force when the territory, or any part thereof, is admitted to the Union, except as adopted by State law.[235] When the enabling act contains no exclusion of jurisdiction as to crimes committed on Indian reservations by persons other than Indians, State courts are vested with jurisdiction.[236] But the constitutional authority of Congress to regulate commerce with Indian tribes is not inconsistent with the equality of new States,[237] and conditions inserted in the New Mexico Enabling Act forbidding the introduction of liquor into Indian territory were therefore valid.[238]

CITIZENSHIP OF INHABITANTS

Admission of a State on an equal footing with the original States involves the adoption as citizens of the United States of those whom Congress makes members of the political community, and who are recognized as such in the formation of the new State.[239]

JUDICIAL PROCEEDINGS

Whenever a territory is admitted into the Union, the cases pending in the territorial court which are of exclusive federal cognizance are transferred to the federal court having jurisdiction over the area; cases not cognizable in the federal courts are transferred to the tribunals of the new State, and those over which federal and State courts have concurrent jurisdiction may be transferred either to the State or federal courts by the party possessing that option under existing law.[240] Where Congress neglected to make provision for disposition of certain pending cases in an Enabling Act for the admission of a State to the Union, a subsequent act supplying the omission was held valid.[241] After a case, begun in a United States court of a territory, is transferred to a State court under the operation of the enabling act and the State constitution, the appellate procedure is governed by the State statutes and procedure.[242] The new State cannot, without the express or implied assent of Congress, enact that the records of the former territorial court of appeals should become records of its own courts, or provide by law for proceedings based thereon.[243]

PROPERTY RIGHTS: UNITED STATES v. TEXAS

Holding that a "mere agreement in reference to property" involved "no question of equality of status," the Supreme Court upheld, in Stearns v. Minnesota,[244] a promise exacted from Minnesota upon its admission to the Union which was interpreted to limit its right to tax lands held by the United States at the time of admission and subsequently granted to a railroad. The "equal footing" doctrine has had an important effect, however, on the property rights of new States to soil under navigable waters. In Pollard v. Hagan,[245] the Court held that the original States had reserved to themselves the ownership of the shores of navigable waters and the soils under them, and that under the principle of equality the title to the soils of navigable waters passes to a new State upon admission. After refusing to extend the inland-water rule of this case to the three mile marginal belt under the ocean along the coast,[246] the Court applied the principle of the Pollard Case in reverse in United States v. Texas.[247] Since the original States had been found not to own the soil under the three mile belt, Texas, which concededly did own this soil before its annexation to the United States, was held to have surrendered its dominion and sovereignty over it, upon entering the Union on terms of equality with the existing States. To this extent, the earlier rule that unless otherwise declared by Congress the title to every species of property owned by a territory passes to the State upon admission[248] has been qualified.

RIGHTS CONVEYED TO PRIVATE PERSONS BEFORE ADMISSION OF A STATE

While the territorial status continues, the United States has power to convey property rights, such as rights in soil below high-water mark along navigable waters,[249] or the right to fish in designated waters,[250] which will be binding on the State. But a treaty with an Indian tribe which gave hunting rights on unoccupied lands of the United States, which rights should cease when the United States parted with its title to any of the land, was held to be repealed by the admission to the Union of the territory in which the hunting lands were situated.[251]

Clause 2. The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State.

Property of the United States

METHODS OF DISPOSING THEREOF

The Constitution is silent as to the methods of disposing of property of the United States. In United States v. Gratiot,[252] in which the validity of a lease of lead mines on government lands was put in issue, the contention was advanced that "disposal is not letting or leasing," and that Congress has no power "to give or authorize leases." The Court sustained the leases, saying "the disposal must be left to the discretion of Congress."[253] Nearly a century later this power to dispose of public property was relied upon to uphold the generation and sale of electricity by the Tennessee Valley Authority. The reasoning of the Court ran thus: the potential electrical energy made available by the construction of a dam in the exercise of its constitutional powers is property which the United States is entitled to reduce to possession; to that end it may install the equipment necessary to generate such energy. In order to widen the market and make a more advantageous disposition of the product, it may construct transmission lines, and may enter into a contract with a private company for the interchange of electric energy.[254]

PUBLIC LANDS

No appropriation of public lands may be made for any purpose except by authority of Congress.[255] However, the long-continued practice of withdrawing land from the public domain by Executive Orders for the purpose of creating Indian reservations has raised an implied delegation of authority from Congress to take such action.[256] The comprehensive authority of Congress over public lands includes the power to prescribe the times, conditions and mode of transfer thereof, and to designate the persons to whom the transfer shall be made;[257] to declare the dignity and effect of titles emanating from the United States;[258] to determine the validity of grants which antedate the government's acquisition of the property;[259] to exempt lands acquired under the homestead laws from previously contracted debts;[260] to withdraw land from settlement and to prohibit grazing thereon;[261] to prevent unlawful occupation of public property and to declare what are nuisances, as affecting such property, and provide for their abatement;[262] and to prohibit the introduction of liquor on lands purchased and used for an Indian colony.[263] Congress may limit the disposition of the public domain to a manner consistent with its views of public policy. A restriction inserted in a grant of public lands to a municipality which prohibited the grantee from selling or leasing to a private corporation the right to sell or sublet water or electric energy supplied by the facilities constructed on such land was held valid.[264]

THE POWER OF THE STATE

No State can tax public lands of the United States within its borders;[265] nor can State legislation interfere with the power of Congress under this clause or embarrass its exercise.[266] The question whether title to land which has once been the property of the United States has passed from it must be resolved by the laws of the United States; after title has passed, "that property, like all other property in the State, is subject to State legislation; so far as that legislation is consistent with the admission that the title passed and vested according to the laws of the United States."[267] In construing a conveyance by the United States of land within a State, the settled and reasonable rule of construction of the State affords a guide in determining what impliedly passes to the grantee as an incident to land expressly granted.[268] But a State statute enacted subsequently to a federal grant cannot be given effect to vest in the State rights which either remained in the United States or passed to its grantee.[269]

POWER OF CONGRESS OVER THE TERRITORIES

In the territories, Congress has the entire dominion and sovereignty, national and local, and has full legislative power over all subjects upon which a State legislature might act.[270] It may legislate directly with respect to the local affairs of a territory or it may transfer that function to a legislature elected by the citizens thereof,[271] which will then be invested with all legislative power except as limited by the Constitution of the United States and acts of Congress.[272] In 1886, Congress prohibited the enactment by territorial legislatures of local or special laws on enumerated subjects.[273] The constitutional guarantees of private rights are applicable in territories which have been made a part of the United States by Congressional action,[274] but not to unincorporated territories.[275] Alaska is of the former description,[276] while the status of Hawaii appears to be doubtful.[277] Congress may establish, or may authorize the territorial legislature to create, legislative courts whose jurisdiction is derived from statutes enacted pursuant to this section rather than from article IV.[278] Such courts may exercise admiralty jurisdiction despite the fact that such jurisdiction may be exercised in the States only by constitutional courts.[279]

Section 4. The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

A Republican Form of Government

It was established in the pioneer case of Luther v. Borden,[280] that questions arising under this section are political, not judicial, in character, and that "it rests with Congress to decide what government is the established one in a State * * * as well as its republican character."[281] Upon Congress also rested the duty to restore republican governments to the States which seceded from the Union at the time of the Civil War. In Texas v. White[282] the Supreme Court declared that the action of the President in setting up provisional governments at the end of the war was justified, if at all, only as an exercise of his powers as Commander in Chief and that such governments were to be regarded merely as provisional regimes to perform the functions of government pending action by Congress. On the ground that the questions were not justiciable in character, the Supreme Court has refused to consider whether the adoption of the initiative and referendum,[283] or the delegation of legislative power to other departments of government[284] is compatible with a republican form of government. This guarantee does not give the Supreme Court jurisdiction to review a decision of a State court sustaining a determination of an election contest for the office of governor made by a State legislature under the authority of a State constitution.[285] Inasmuch as women were denied the right to vote in most, if not all, of the original thirteen States, it was held, prior to the adoption of Amendment XIX, that a State government could be challenged under this clause by reason of the fact that it did not permit women to vote.[286]

Protection Against Domestic Violence

The Supreme Court also held in Luther v. Borden[287] that it rested with Congress to determine upon the means proper to fulfill the constitutional guarantee of protection to the States against domestic violence. Chief Justice Taney declared that Congress might have placed it in the power of a court to decide when the contingency had happened which required the Federal Government to interfere. Instead, Congress had, by the act of February 28, 1795,[288] authorized the President to call out the militia in case of insurrection against the government of any State. It followed, said Taney, that the President "must, of necessity, decide which is the government, and which party is unlawfully arrayed against it, before he can perform the duty imposed upon him by the act of Congress"[289] and that his determination was not subject to review by the courts.

DECLINE IN IMPORTANCE OF THIS GUARANTY

With the recognition in the Debs Case[290] of the power and duty of the Federal Government to use "the entire strength of the Nation * * * to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care,"[291] this clause has declined in importance. When that Government finds it necessary or desirable to use force to quell domestic violence, its power to protect the property of the United States, to remove obstructions to the United States mails, or to protect interstate commerce from interruption by labor disputes or otherwise, usually will furnish legal warrant for its action, without reference to this provision.[292]

Notes

[1] Clark v. Graham, 6 Wheat. 577 (1821), is an early case in which the Supreme Court enforced this rule.

[2] Stat. 122 (1790); 2 Stat. 299 (1804), R.S. Sec. 905 28 U.S.C. Sec. 687.

[3] Mankin v. Chandler & Co., 2 Brock. 125, 127 (1823).

[4] 7 Cr. 481 (1813). See also Everett v. Everett, 215 U.S. 203 (1909); Mutual L. Ins. Co. v. Harris, 97 U.S. 331 (1878).

[5] On the same basis, a judgment cannot be impeached either in or out of the State by showing that it was based on a mistake of law. American Exp. Co. v. Mullins, 212 U.S. 311, 312 (1909); Fauntleroy v. Lum, 210 U.S. 230 (1908); Hartford L. Ins. Co. v. Barber, 245 U.S. 146 (1917); Hartford L. Ins. Co. v. Ibs, 237 U.S. 662 (1915).

[6] 3 Wheat. 234 (1818).

[7] 13 Pet. 312 (1839). See also Bacon v. Howard, 20 How. 22, 25 (1858); Bank of Ala. v. Dalton, 9 How. 522, 528 (1850); Great Western Telegraph Co. v. Purdy, 162 U.S. 329 (1896); Christmas v. Russell, 5 Wall. 290, 301 (1866); Wisconsin v. Pelican Insurance Co., 127 U.S. 265, 292 (1888).

[8] Cole v. Cunningham, 133 U.S. 107, 112 (1890). See also Stacy v. Thrasher, use of Sellers, 6 How. 44, 61 (1848); Milwaukee County v. White (M.E.) Co., 296 U.S. 268 (1935).

[9] Chicago & A.R. Co. v. Wiggins Ferry Co., 119 U.S. 615, 622 (1887); Hanley v. Donoghue, 116 U.S. 1, 3 (1885). See also Bigelow v. Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Green v. Van Buskirk, 7 Wall. 139, 140 (1869); Roche v. McDonald, 275 U.S. 449 (1928); Ohio v. Chattanooga Boiler & Tank Co., 289 U.S. 439 (1933).

[10] Sistare v. Sistare, 218 U.S. 1 (1910).

[11] Michigan Trust Co. v. Ferry, 228 U.S. 346 (1913). See also Fall v. Eastin, 215 U.S. 1 (1909).

[12] Milwaukee County v. White (M.E.) Co., 296 U.S. 268, 275-276 (1935).

[13] Board of Public Works v. Columbia College, 17 Wall. 521 (1873); Robertson v. Pickrell, 109 U.S. 608, 610 (1883).

[14] Kersh Lake Drainage Dist. v. Johnson, 309 U.S. 485 (1940). See also Texas & P.R. Co. v. Southern P. Co., 137 U.S. 48 (1890).

[15] National Exchange Bank v. Wiley, 195 U.S. 257, 265 (1904). See also Grover & B. Sewing-Mach. Co. v. Radcliffe, 137 U.S. 287 (1890).

[16] Harding v. Harding, 198 U.S. 317 (1905). The following cases further illustrate the application of the clause when its protection is sought by a defendant. Such claim must be specific, Wabash R. Co. v. Flannigan, 192 U.S. 29, 37 (1904). See also American Exp. Co. v. Mullins, 212 U.S. 311 (1909). The burden is upon the party making it to establish the failure of a court to give to decrees of a federal court and the court of another State the due effect to which they are entitled. Commercial Pub. Co. v. Beckwith, 188 U.S. 567, 573 (1903). However, by defending on the merits, after pleading and relying upon a foreign judgment, a party does not waive the benefits of an alleged estoppel arising from the foreign judgment. Harding v. Harding, 198 U.S. 317, 330 (1905). Nor is a decree of dismissal, not on the merits, a bar to suit in another jurisdiction. Swift v. McPherson, 232 U.S. 51 (1914). Nor is an entry of discontinuance. In allowing the plaintiff to show that such entry of discontinuance was not intended by the parties as a release and satisfaction of the cause of action, but was the result of a promissory agreement by the defendant which was never complied with, the Court in the forum State was not refusing full faith and credit to the judgment. Such evidence was properly allowed, not to contradict the legal import of said judgment, but to show the true meaning of the parties to the suit in agreeing upon its discontinuance. Jacobs v. Marks, 182 U.S. 583, 593 (1901).

[17] Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903).

[18] Fauntleroy v. Lum, 210 U.S. 230 (1908). Justice Holmes, who spoke for the Court in both cases, asserted in his opinion in the latter that the New York statute was "directed to jurisdiction," the Mississippi statute to "merits," but four Justices could not grasp the distinction.

[19] Kenney v. Supreme Lodge, 252 U.S. 411 (1920), and cases there cited. Holmes again spoke for the Court. See also Cook, The Powers of Congress Under the Full Faith and Credit Clause, 28 Yale L.J. 421, 434 (1919).

[20] Broderick v. Rosner, 294 U.S. 629 (1935), affirmed in Hughes v. Fetter, 341 U.S. 609 (1951).

[21] Union National Bank v. Lamb, 337 U.S. 38 (1949); see also Roche v. McDonald, 275 U.S. 449 (1928).

[22] Embry v. Palmer, 107 U.S. 3, 13 (1883).

[23] Titus v. Wallick, 306 U.S. 282, 291-292 (1939).

[24] Morris v. Jones, 329 U.S. 545 (1947).

[25] Thus why should not a judgment for alimony be made directly enforceable in sister States instead of merely furnishing the basis of an action in debt? See Thompson v. Thompson, 226 U.S. 551 (1913).

[26] Board of Public Works v. Columbia College, 17 Wall. 521, 528 (1873). See also Spokane & I.E.R. Co. v. Whitley, 237 U.S. 487 (1915); Bigelow v. Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912); Brown v. Fletcher, 210 U.S. 82 (1908); Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Huntington v. Attrill, 146 U.S. 657, 685 (1892). However a denial of credit, founded upon a mere suggestion of want of jurisdiction and unsupported by evidence, violates the clause. See also Rogers v. Alabama, 192 U.S. 226, 231 (1904); Wells Fargo & Co. v. Ford, 238 U.S. 503 (1915).

[27] See Cooper v. Reynolds, 10 Wall. 308 (1870).

[28] 11 How. 165 (1850).

[29] Justice Johnson, dissenting in Mills v. Duryee, 7 Cr. 481 (1813), had said: "There are certain eternal principles of justice which never ought to be dispensed with, and which Courts of justice never can dispense with but when compelled by positive statute. One of those is, that jurisdiction cannot be justly exercised by a State over property not within the reach of its process, or over persons not owing them allegiance or not subjected to their jurisdiction, by being found within their limits." Ibid. 486.

[30] 95 U.S. 714 (1878).

[31] McDonald v. Mabee, 243 U.S. 90, 92 (1917). See also Wetmore v. Karrick, 205 U.S. 141 (1907).

[32] Grover & B. Sewing-Mach. Co. v. Radcliffe, 137 U.S. 287 (1890). See also Brown v. Fletcher, 210 U.S. 82 (1908); Galpin v. Page, 18 Wall. 350 (1874); Old Wayne Mutual Life Asso. Co. v. McDonough, 204 U.S. 8 (1907).

[33] Reynolds v. Stockton, 140 U.S. 254 (1891).

[34] Renaud v. Abbott, 116 U.S. 277 (1886); Jaster v. Currie, 198 U.S. 144 (1905).

[35] Milliken v. Meyer, 311 U.S. 457, 463 (1940).

[36] Adam v. Saenger, 303 U.S. 59, 62 (1938).

[37] Hancock National Bank v. Farnum, 176 U.S. 640 (1900).

[38] Stacy v. Thrasher, use of Sellers, 6 How. 44, 58 (1848).

[39] Bigelow v. Old Dominion Copper Min. & S. Co., 225 U.S. 111 (1912).

[40] 18 How. 404 (1856).

[41] To the same effect is Connecticut Mut. Ins. Co. v. Spratley, 172 U.S. 602 (1899).

[42] Simon v. Southern Ky., 236 U.S. 115 (1915).

[43] Goldey v. Morning News, 156 U.S. 518 (1895); Riverside Mills v. Menefee, 237 U.S. 189 (1915).

[44] International Harvester Co. v. Kentucky, 234 U.S. 579 (1914); Riverside Mills v. Menefee, 237 U.S. 189 (1915).

[45] International Harvester Co. v. Kentucky, 234 U.S. 579 (1914).

[46] Kane v. New Jersey, 242 U.S. 160 (1916); Hess v. Pawloski, 274 U.S. 352 (1927). Limited in Wuchter v. Pizzutti, 276 U.S. 13 (1928).

[47] 18 Wall. 457 (1874).

[48] See 1 Black, Judgments Sec. 246 (1891).

[49] See also Simmons v. Saul, 138 U.S. 439, 448 (1891). In other words, the challenge to jurisdiction is treated as equivalent to the plea nul tiel record, a plea which was recognized even in Mills v. Duryee as always available against an attempted invocation of the full faith and credit clause. What is not pointed out by the Court, is that it was also assumed in the earlier case that such a plea could always be rebutted by producing a transcript, properly authenticated in accordance with the act of Congress, of the judgment in the original case. See also Brown v. Fletcher, 210 U.S. 82 (1908); German Savings Society v. Dormitzer, 192 U.S. 125, 128 (1904); Grover & Sewing-Mach. Co. v. Radcliffe, 137 U.S. 287, 294 (1890).

[50] Cheever v. Wilson, 9 Wall. 108 (1870).

[51] Andrews v. Andrews, 188 U.S. 14 (1903). See also German Savings Society v. Dormitzer, 192 U.S. 125 (1904).

[52] 201 U.S. 562 (1906). See also Thompson v. Thompson, 226 U.S. 551 (1913).

[53] 181 U.S. 155, 162 (1901).

[54] 317 U.S. 287 (1942); 325 U.S. 226 (1945).

[55] 305 U.S. 32 (1938).

[56] 317 U.S. 287, 298-299 (1942).

[57] Ibid. at p. 302.

[58] 317 U.S. 287, 312, 315, 321 (1942).

[59] 325 U.S. 226, 229 (1945).

[60] Bell v. Bell, 181 U.S. 175 (1901); Andrews v. Andrews, 188 U.S. 14 (1903).

[61] Strong dissents were filed which have influenced subsequent holdings. Among these was that of Justice Rutledge which attacked both the consequences of the decision as well as the concept of jurisdictional domicile on which it was founded.

"Unless 'matrimonial domicil,' banished in Williams I [by the overruling of Haddock v. Haddock], has returned renamed ['domicil of origin'] in Williams II, every decree becomes vulnerable in every State. Every divorce, wherever granted, * * *, may now be reexamined by every other State, upon the same or different evidence, to redetermine the 'jurisdictional fact,' always the ultimate conclusion of 'domicil.' * * *

"The Constitution does not mention domicil. Nowhere does it posit the powers of the states or the nation upon that amorphous, highly variable common-law conception. * * * No legal conception, save possibly 'jurisdiction,' * * *, affords such possibilities for uncertain application. * * * Apart from the necessity for travel, [to effect a change of domicile, the latter], criterion comes down to a purely subjective mental state, related to remaining for a length of time never yet defined with clarity. * * * When what must be proved is a variable, the proof and the conclusion which follows upon it inevitably take on that character. * * * [The majority have not held] that denial of credit will be allowed, only if the evidence [as to the place of domicile] is different or depending in any way upon the character or the weight of the difference. The test is not different evidence. It is evidence, whether the same or different and, if different, without regard to the quality of the difference, from which an opposing set of inferences can be drawn by the trier of fact 'not unreasonably.' * * * But * * * [the Court] does not define 'not unreasonably.' It vaguely suggests a supervisory function, to be exercised when the denial [of credit] strikes its sensibilities as wrong, by some not stated standard. * * * There will be no 'weighing' [of evidence], * * * only examination for sufficiency."--(325 U.S. 226, 248, 251, 255, 258-259 (1945)).

No less disposed to prophesy undesirable results from this decision was Justice Black in whose dissenting opinion Justice Douglas concurred.

"The full faith and credit clause, as now interpreted, has become a disrupting influence. The Court in effect states that the clause does not apply to divorce actions, and that States alone have the right to determine what effect shall be given to the decrees of other States. If the Court is abandoning the principle that a marriage [valid where made is valid everywhere], a consequence is to subject people to bigamy or adultery prosecutions because they exercise their constitutional right to pass from a State in which they were validly married on to another which refuses to recognize their marriage. Such a consequence violates basic guarantees."

North Carolina's interest was to preserve a bare marital status as to two persons who sought a divorce and two others who had not objected to it. "It is an extraordinary thing for a State to procure a retroactive invalidation of a divorce decree, and then punish one of its citizens for conduct authorized by that decree, when it had never been challenged by either of the people most immediately interested in it." The State here did not sue to protect any North Carolina property rights nor to obtain support for deserted families. "I would not permit such an attenuated state interest to override the Full Faith and Credit Clause * * *" (325 U.S. 226, 262-267 (1945)).

The unsettling effect of this decision was expressed statistically by Justice Black as follows: "Statistics indicate that approximately five million divorced persons are scattered throughout the forty-eight States. More than 85% of these divorces were granted in uncontested proceedings. Not one of this latter group can now retain any feeling of security in his divorce decree. Ever present will be the danger of criminal prosecution and harassment." Ibid. 262-263.

As to the conclusion that the Supreme Court as well as the State courts should reach in like situations, Justice Black asserted that "until Congress has commanded a different 'effect' for divorces granted on a short sojourn within a State, we should stay our hands. * * * If we follow that course, North Carolina cannot be permitted to disregard the Nevada decrees without passing upon the 'faith and credit' which Nevada itself would give to them under its own 'law or usage.' * * * For in Nevada, even its Attorney General could not have obtained a cancellation of the decree * * *." Ibid. 267, 268.

The reader should take note of the effect in some of the above opinions to weigh competing interests against one another and the implication that the court's relation to the full faith and credit clause is that of an arbitral tribunal rather than of a court in the conventional sense of a body whose duty is to maintain an established rule of law.

[62] 325 U.S. 279 (1945).

[63] Ibid. 281-283.

[64] 334 U.S. 541 (1948). See also the companion case of Kreiger v. Kreiger, 334 U.S. 555 (1948).

[65] Esenwein v. Commonwealth, 325 U.S. 279, 280 (1945).

[66] Because the record, in his opinion, did not make it clear whether New York "law" held that no "ex parte" divorce decree could terminate a prior New York separate maintenance decree, or merely that no "ex parte" decree of divorce of another State could, Justice Frankfurter dissented and recommended that the case be remanded for clarification. Justice Jackson dissented on the ground that under New York law, a New York divorce would terminate the wife's right to alimony; and if the Nevada decree is good, it is entitled to no less effect in New York than a local decree. However, for reasons stated in his dissent in the First Williams Case, 317 U.S. 287, he would prefer not to give standing to constructive service divorces obtained on short residence. 334 U.S. 541, 549-554 (1948). These two Justices filed similar dissents in the companion case of Kreiger v. Kreiger, 334 U.S. 555, 557 (1948).

[67] 334 U.S. 343 (1948).

[68] 334 U.S. 378 (1948).--In a dissenting opinion filed in the case of Sherrer v. Sherrer, but applicable also to the case of Coe v. Coe, Justice Frankfurter, with Justice Murphy concurring, asserted his inability to accept the proposition advanced by the majority that "regardless of how overwhelming the evidence may have been that the asserted domicile in the State offering bargain-counter divorces was a sham, the home State of the parties is not permitted to question the matter if the form of a controversy had been gone through."--334 U.S. 343, 377 (1948).

[69] 336 U.S. 674 (1949).--Of four Justices dissenting (Black, Douglas, Rutledge, Jackson), Justice Jackson alone filed a written opinion. To him the decision is "an example of the manner in which, in the law of domestic relations, 'confusion now hath made his masterpiece,'" but for the first Williams case and its progeny, the judgment of the Connecticut court might properly have held that the Rice divorce decree was void for every purpose because it was rendered by a State court which never obtained jurisdiction of the nonresident defendant. "But if we adhere to the holdings that the Nevada court had power over her for the purpose of blasting her marriage and opening the way to a successor, I do not see the justice of inventing a compensating confusion in the device of divisible divorce by which the parties are half-bound and half-free and which permits Rice to have a wife who cannot become his widow and to leave a widow who was no longer his wife." Ibid. 676, 679, 680.

[70] Vermont violated the clause in sustaining a collateral attack on a Florida divorce decree, the presumption of Florida's jurisdiction over the cause and the parties not having been overcome by extrinsic evidence or the record of the case. Cook v. Cook, 342 U.S. 126 (1951). The Sherrer and Coe cases were relied upon. There seems, therefore, to be no doubt of their continued vitality.

[71] Barber v. Barber, 323 U.S. 77, 84 (1944).

[72] Sistare v. Sistare, 218 U.S. 1, 11 (1910). See also Barber v. Barber, 21 How. 582 (1859); Lynde v. Lynde, 181 U.S. 183, 186-187 (1901); Bates v. Bodie, 245 U.S. 520 (1918); Audubon v. Shufeldt, 181 U.S. 575, 577 (1901); Yarbrough v. Yarbrough, 290 U.S. 202 (1933); Loughran v. Loughran, 292 U.S. 216 (1934).

[73] Griffin v. Griffin, 327 U.S. 220 (1946).

[74] Ibid. 228. An alimony case of a quite extraordinary pattern was that of Sutton v. Leib. On account of the diverse citizenship of the parties, who had once been husband and wife, the case was brought by the latter in a federal court in Illinois. Her suit was to recover unpaid alimony which was to continue until her remarriage. To be sure, she had, as she confessed, remarried in Nevada, but the marriage had been annulled in New York on the ground that the man was already married, inasmuch as his divorce from his previous wife was null and void, she having neither entered a personal appearance nor been personally served. The Court, speaking by Justice Reed, held that the New York annulment of the Nevada marriage must be given full faith and credit in Illinois, but left Illinois to decide for itself the effect of the annulment upon the obligations of petitioner's first husband. Sutton v. Leib, 342 U.S. 402 (1952).

[75] Halvey v. Halvey, 330 U.S. 610, 615 (1947).

[76] Johnson v. Muelberger, 341 U.S. 581 (1951).

[77] Tilt v. Kelsey, 207 U.S. 43 (1907); Burbank v. Ernst, 232 U.S. 162 (1914).

[78] Riley v. New York Trust Company, 315 U.S. 343 (1942).

[79] Brown v. Fletcher, 210 U.S. 82, 90 (1908). See also Stacy v. Thrasher, Use of Sellers, 6 How. 44, 58 (1848); McLean v. Meek, 18 How. 16, 18, (1856).

[80] Tilt v. Kelsey, 207 U.S. 43 (1907). In the case of Borer v. Chapman, 119 U.S. 587, 599 (1887) involving a complicated set of facts, it was held, in 1887, that a judgment in a probate proceeding, which was merely ancillary to proceedings in another State and which ordered the residue of the estate to be assigned to the legatee and discharged the executor from further liability, did not prevent a creditor, who was not a resident of the State in which the ancillary judgment was rendered, from setting up his claim in the State probate court which had the primary administration of the estate.

[81] Blodgett v. Silberman, 277 U.S. 1 (1928).

[82] Kerr v. Devisees of Moon, 9 Wheat. 565 (1824); McCormick v. Sullivant, 10 Wheat. 192 (1825); Clarke v. Clarke, 178 U.S. 186 (1900). The controlling principle of these cases is not confined to proceedings in probate. A court of equity "not having jurisdiction of the res cannot affect it by its decree nor by a deed made by a master in accordance with the decree." See Fall v. Eastin, 215 U.S. 1, 11 (1909).

[83] Robertson v. Pickrell, 109 U.S. 608, 611 (1883). See also Darby v. Mayer, 10 Wheat. 465 (1825); Gasquet v. Fenner, 247 U.S. 16 (1918).

[84] Olmsted v. Olmsted, 216 U.S. 386 (1910).

[85] Hood v. McGehee, 237 U.S. 611 (1915).

[86] Harris v. Balk, 198 U.S. 215 (1905). See also Chicago, R.I. & Pac. Ry v. Sturm, 174 U.S. 710 (1899); King v. Cross, 175 U.S. 396, 399 (1899); Louisville & N.R. Co. v. Deer, 200 U.S. 176 (1906); Baltimore & O.R. Co. v. Hostetter, 240 U.S. 620 (1916).

[87] Christmas v. Russell, 5 Wall. 290 (1866); Maxwell v. Stewart, 21 Wall. 71 (1875); Hanley v. Donoghue, 116 U.S. 1 (1885); Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888); Simmons v. Saul, 138 U.S. 439 (1891); American Express Co. v. Mullins, 212 U.S. 311 (1909).

[88] Fauntleroy v. Lum, 210 U.S. 230 (1908).

[89] Anglo-American Provision Co. v. Davis Provision Co., 191 U.S. 373 (1903).

[90] 133 U.S. 107 (1890).

[91] The Antelope, 10 Wheat. 66, 123 (1825). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).

[92] 146 U.S. 657 (1892). See also Dennick v. R.R. 103 U.S. 11 (1881).

[93] Milwaukee County v. White (N.E.) Co., 296 U.S. 268 (1935). See also Moore v. Mitchell, 281 U.S. 18 (1930).

[94] Bank of Augusta v. Earle, 13 Pet. 519, 589-596 (1839). See Kryger v. Wilson, 242 U.S. 171 (1916); Bond v. Hume, 243 U.S. 15 (1917).

[95] 19 How. 393, 460 (1857); Bonaparte v. Tax Court, 104 U.S. 592 (1882), where it was held that a law exempting from taxation certain bonds of the enacting State did not operate extraterritorially by virtue of the full faith and credit clause.

[96] Chicago & Alton R. Co. v. Wiggins Ferry, 119 U.S. 615, 622 (1887).

[97] Smithsonian Institution v. St. John, 214 U.S. 19 (1909). When, in a State court, the validity of an act of the legislature of another State is not in question, and the controversy turns merely upon its interpretation or construction, no question arises under the full faith and credit clause. See also Western Life Indemnity Co. v. Rupp, 235 U.S. 261 (1914), citing Glenn v. Garth, 147 U.S. 360 (1893); Lloyd v. Matthews, 155 U.S. 222, 227 (1894); Banholzer v. New York L. Ins. Co., 178 U.S. 402 (1900); Allen v. Alleghany Co., 196 U.S. 458, 465 (1905); Texas & N.O.R. Co. v. Miller, 221 U.S. 408 (1911). See also National Mut. Bldg. & Loan Asso. v. Brahan, 193 U.S. 635 (1904); Johnson v. New York Life Ins. Co., 187 U.S. 491, 495 (1903); Pennsylvania F. Ins. Co. v. Gold Issue Min. & Mill. Co., 243 U.S. 93 (1917).

[98] Alaska Packers Asso. v. Industrial Acci. Commission, 294 U.S. 532 (1935); Bradford Electric Light Co. v. Clapper, 286 U.S. 145 (1932).

[99] Dennick v. R.R., 103 U.S. 11 (1881) was the first of the so-called "Death Act" cases to reach the Supreme Court. See also Stewart v. B.& O.R. Co., 168 U.S. 445 (1897). Even today the obligation of a State to furnish a forum for the determination of death claims arising in another State under the laws thereof appears to rest on a rather precarious basis. In Hughes v. Fetter, 341 U.S. 609 (1951), the Court, by a narrow majority, held invalid under the full faith and credit clause a statute of Wisconsin which, as locally interpreted, forbade its courts to entertain suits of this nature; and in First National Bank v. United Air Lines, 342 U.S. 396 (1952), a like result was reached as to an Illinois statute. In both cases the same four Justices dissented.

[100] 119 U.S. 615 (1887).

[101] Northern Pac. R.R. v. Babcock, 154 U.S. 190 (1894); Atchison, T. & S.F.R. Co. v. Sowers, 213 U.S. 55, 67 (1909).

[102] Glenn v. Garth, 147 U.S. 360 (1893).

[103] Tennessee Coal Co. v. George, 233 U.S. 354 (1914).

[104] Klaxon Co. v. Stentor, 313 U.S. 487 (1941); John Hancock Mut. Life Ins. Co. v. Yates, 299 U.S. 178 (1936) distinguished.

[105] Modern Woodmen of Am. v. Mixer, 267 U.S. 544 (1925).

[106] Converse v. Hamilton, 224 U.S. 243 (1912); Selig v. Hamilton, 234 U.S. 652 (1914); Marin v. Augedahl, 247 U.S. 142 (1918).

[107] Broderick v. Rosner, 294 U.S. 629 (1935). See also Thormann v. Frame, 176 U.S. 350, 356 (1900); Reynolds v. Stockton, 140 U.S. 254, 264 (1891).

[108] Hancock Nat. Bank. v. Farnum, 176 U.S. 640 (1900).

[109] 237 U.S. 531 (1916); followed in Modern Woodmen of Am. v. Mixer, 267 U.S. 544 (1925).

[110] 305 U.S. 66, 75, 79 (1938).

[111] 331 U.S. 586, 588-589, 637 (1947).

[112] New York Life Ins. Co. v. Head, 234 U.S. 149 (1914); Aetna Life Ins. Co. v. Dunken, 266 U.S. 389 (1924).

[113] 193 U.S. 635 (1904).

[114] National Mutual B. & L. Asso. v. Brahan, 193 U.S. 635 (1904).

[115] New York Life Ins. Co. v. Cravens, 178 U.S. 389 (1900). See also American Fire Ins. Co. v. King Lumber Co., 250 U.S. 2 (1919).

[116] Griffin v. McCoach, 313 U.S. 498 (1941).

[117] 314 U.S. 201, 206-208 (1941). However, a decree of a Montana Supreme Court, insofar as it permitted judgment creditors of a dissolved Iowa surety company to levy execution against local assets to satisfy judgment, as against title to such assets of the Iowa insurance commissioner as statutory liquidator and successor to the dissolved company, was held to deny full faith and credit to the statutes of Iowa.--Clark v. Willard, 292 U.S. 112 (1934).

[118] 324 U.S. 154, 159-160 (1945).

[119] Bradford Electric Co. v. Clapper, 286 U.S. 145, 158 (1932).

[120] The Court had earlier remarked that "workmen's compensation legislation rests upon the idea of status, not upon that of implied contract." Cudahy Packing Co. v. Parramore, 263 U.S. 418, 423 (1923). In contrast to the above cases, see Kryger v. Wilson, 242 U.S. 171 (1916), where it was held that the question whether the cancellation of a land contract was governed by the lex rei sitae or the lex loci contractus was purely a question of local common law; also Bond v. Hume, 243 U.S. 15 (1917).

[121] Pacific Ins. Co. v. Comm'n., 306 U.S. 493, 497, 503-504 (1939).

[122] 320 U.S. 430 (1943).

[123] Industrial Comm'n. v. McCartin, 330 U.S. 622 (1947).

[124] Cardillo v. Liberty Mutual Co., 330 U.S. 469 (1947).

[125] Reviewing some of the cases treated in this section, a writer in 1925 said: "It appears, then, that the Supreme Court has quite definitely committed itself to a program of making itself, to some extent, a tribunal for bringing about uniformity in the field of conflicts * * * although the precise circumstances under which it will regard itself as having jurisdiction for this purpose are far from clear." E.M. Dodd, The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws (1926), 39 Harv. L. Rev. 533-562. It can hardly be said that the law has been subsequently clarified on this point.

[126] Walter W. Cook, The Power of Congress Under the Full Faith and Credit Clause (1919), 28 Yale L.J. 430.

[127] Cooper v. Newell, 173 U.S. 555, 567 (1899). See also Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 291 (1888); Swift v. McPherson, 232 U.S. 51 (1914); Pennington v. Gibson, 16 How. 65, 81 (1854); Cheever v. Wilson, 9 Wall. 108, 123 (1870); Baldwin v. Iowa State Traveling Men's Asso., 283 U.S. 522 (1931); American Surety Co. v. Baldwin, 287 U.S. 156 (1932); Sanders v. Armour Fertilizer Works, 292 U.S. 190 (1934).

[128] Milwaukee County v. White (M.E.) Co., 296 U.S. 268 (1935).

[129] Equitable L. Assur. Soc. v. Brown, 187 U.S. 308 (1902). See also Gibson v. Lyon, 115 U.S. 439 (1885).

[130] Embry v. Palmer, 107 U.S. 3, 9 (1883). See also Northern Assur. Co. v. Grand View Bldg. Asso., 203 U.S. 106 (1906); Atchison, T. & S.F.R. Co. v. Sowers, 213 U.S. 55 (1909); Knights of Pythias v. Meyer, 265 U.S. 30, 33 (1924); Louisville & N.R. Co. v. Central Stockyards Co., 212 U.S. 132 (1909); West Side Belt R. Co. v. Pittsburgh Constr. Co., 219 U.S. 92 (1911).

[131] No right, privilege, or immunity is conferred by the Constitution in respect to judgments of foreign states and nations.--Aetna Life Ins. Co. v. Tremblay, 223 U.S. 185 (1912). In Hilton v. Guyot, 159 U.S. 113, 234 (1895) where a French judgment offered in defense was held not a bar to the suit. Four Justices dissented on the ground that "the application of the doctrine of res judicata does not rest in discretion; and it is for the Government, and not for its courts, to adopt the principle of retorsion, if deemed under any circumstances desirable or necessary." At the same sitting of the Court, an action in a United States circuit court on a Canadian judgment was sustained on the same ground of reciprocity. Ritchie v. McMullen, 159 U.S. 235 (1895). See also Ingenohl v. Olsen, 273 U.S. 541 (1927), where a decision of the Supreme Court of the Philippine Islands was reversed for refusal to enforce a judgment of the Supreme Court of the British colony of Hongkong, which was rendered "after a fair trial by a court having jurisdiction of the parties." In 1897 Foreign Relations of the United States 7-8, will be found a three-cornered correspondence between the State Department, the Austro-Hungarian Legation, and the Governor of Pennsylvania, in which the last named asserts that "under the laws of Pennsylvania the judgment of a court of competent jurisdiction in Croatia would be respected to the extent of permitting such judgment to be sued upon in the courts of Pennsylvania." Stowell, op. cit. supra note I, at 254-255. Another instance of international cooperation in the judicial field is furnished by letters rogatory. "When letters rogatory are addressed from any court of a foreign country to any district court of the United States, a commissioner of such district court designated by said court to make the examination of the witnesses mentioned in said letters, shall have power to compel the witnesses to appear and depose in the same manner as witnesses may be compelled to appear and testify in courts," 28 U.S.C.A., supra note II, Sec. 653. Some of the States have similar laws. See 2 Moore, Digest of International Law (1906) 108-109.

[132] David K. Watson, The Constitution of the United States, vol. II, 1206 (1910).

[133] The Federalist No. 42.

[134] 16 Wall. 36 (1873).

[135] Ibid. 75.

[136] Scott v. Sandford, 19 How. 393 (1857).

[137] Ibid. 518, 527-529.

[138] 153 U.S. 684, 687 (1894).

[139] 135 U.S. 492 (1890).

[140] Slaughter-House Case, 15 Fed. Cas. No. 8408 (1870); Chambers v. Baltimore & O.R. Co., 207 U.S. 142 (1907); Whitfield v. Ohio, 297 U.S. 431 (1936).

[141] 16 Wall. 36 (1873).

[142] Ibid. 77.

[143] Bradwell v. Illinois, 16 Wall. 130, 138 (1873). See also Cole v. Cunningham, 133 U.S. 107 (1890).

[144] Blake v. McClung, 172 U.S. 239, 246 (1898); Travis v. Yale & Towne Mfg. Co., 252 U.S. 60 (1920).

[145] La Tourette v. McMaster, 248 U.S. 465 (1919); Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929); cf. Maxwell v. Bugbee, 250 U.S. 525 (1919).

[146] United States v. Harris, 106 U.S. 629, 643 (1883). See also Baldwin v. Franks, 120 U.S. 678 (1887).

[147] United States v. Wheeler, 254 U.S. 281 (1920).

[148] Scott v. Sandford, 19 How. 393 (1857)

[149] Ibid. 403-411.

[150] Ibid. 572-590.

[151] 13 Pet. 519 (1939).

[152] Ibid. 586.

[153] 8 Wall. 168 (1869).

[154] Ibid. 181.

[155] Crutcher v. Kentucky, 141 U.S. 47 (1891). See also pp. 193-198, 1049-1056.

[156] Hemphill v. Orloff, 277 U.S. 537 (1928).

[157] 6 Fed. Cas. No. 3,230, 546, 550 (1823).

[158] Ibid. 551-522.

[159] Ibid. 552.

[160] Corfield v. Coryell, 6 Fed. Cas. No. 3230, 546, 552 (1823).

[161] Ibid. 552.

[162] 94 U.S. 391 (1877).

[163] 161 U.S. 519 (1896).

[164] 209 U.S. 349 (1908).

[165] 334 U.S. 385 (1948).

[166] Ibid. 403. In Mullaney v. Anderson, 342 U.S. 415 (1952) an Alaska statute providing for the licensing of commercial fishermen in territorial waters and levying a license fee of $50.00 on nonresident and only $5.00 on resident fishermen was held void under Art. IV, Sec. 2 on the authority of Toomer v. Witsell, cited above.

[167] 172 U.S. 239 (1898).

[168] Ibid. 256.

[169] La Tourette v. McMaster, 248 U.S. 465 (1919).

[170] Doherty and Co. v. Goodman, 294 U.S. 623 (1935).

[171] Hess v. Pawloski, 274 U.S. 352, 356 (1927).

[172] Ferry v. Spokane P. & S.R. Co., 258 U.S. 314 (1922), followed in Ferry v. Corbett, 258 U.S. 609 (1922).

[173] Conner v. Elliott, 18 How. 591, 593 (1856).

[174] Blake v. McClung, 172 U.S. 230, 248 (1898).

[175] Williams v. Bruffy, 96 U.S. 176, 184 (1878).

[176] Chambers v. Baltimore & O.R. Co., 207 U.S. 142, 148 (1907); McKnett v. St. Louis & S.F.R. Co., 292 U.S. 230, 233 (1934); Miles v. Illinois C.R. Co., 315 U.S. 698, 704 (1942).

[177] Canadian N.R. Co. v. Eggen, 252 U.S. 553 (1920).

[178] Ibid. 563.

[179] Chemung Canal Bank v. Lowery, 93 U.S. 72, 76 (1876).

[180] Douglas v. New York, N.H. & H.R. Co., 279 U.S. 377 (1929).

[181] Chambers v. Baltimore & O.R. Co., 207 U.S. 142 (1907).

[182] 12 Wall. 418, 424 (1871). See also Downham v. Alexandria, 10 Wall. 173, 175 (1870).

[183] Chalker v. Birmingham & M.W.R. Co., 249 U.S. 522 (1919).

[184] 252 U.S. 60 (1920).

[185] Ibid. 62-64. See also Shaffer v. Carter, 252 U.S. 37 (1920).

[186] 252 U.S. 60, 79-80 (1920).

[187] Williams v. Fears, 179 U.S. 270, 274 (1900).

[188] Haavik v. Alaska Packers' Asso., 263 U.S. 510 (1924).

[189] Travelers' Ins. Co. v. Connecticut, 185 U.S. 364, 371 (1902).

[190] Maxwell v. Bugbee, 250 U.S. 525 (1919).

[191] Kirtland v. Hotchkiss, 100 U.S. 491, 499 (1879). Cf. Colgate v. Harvey, 296 U.S. 404 (1935) in which discriminatory taxation of bank deposits outside the State owned by a citizen of the State was held to infringe a privilege of national citizenship, in contravention of the Fourteenth Amendment. The decision in Colgate v. Harvey was overruled in Madden v. Kentucky, 309 U.S. 83, 93 (1940).

[192] 1 Stat. 302 (1793).

[193] Roberts v. Reilly, 116 U.S. 80, 94 (1885). See also Innes v. Tobin, 240 U.S. 127 (1916). Said Justice Story: "... the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution"; [and again] "... it has, on various occasions, exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined thereby." Prigg v. Pennsylvania, 16 Pet. 539, 616, 618-619 (1842).

[194] Taylor v. Taintor, 16 Wall. 366, 371 (1873).

[195] 24 How. 66 (1861); Cf. Prigg v. Pennsylvania, 16 Pet. 539, 612 (1842).

[196] 24 How. 66, 107 (1861).

[197] 48 Stat. 782 (1934).

[198] Roberts v. Reilly, 116 U.S. 80 (1885). See also Strassheim v. Daily, 221 U.S. 280 (1911); Appleyard v. Massachusetts, 203 U.S. 222 (1906); Ex parte Reggel, 114 U.S. 642, 650 (1885).

[199] Drew v. Thaw, 235 U.S. 432, 439 (1914).

[200] Innes v. Tobin, 240 U.S. 127 (1916).

[201] Bassing v. Cady, 208 U.S. 386 (1908).

[202] Hyatt v. New York ex rel. Corkran, 188 U.S. 691 (1903).

[203] Kentucky v. Dennison, 24 How. 66, 103 (1861).

[204] Taylor v. Taintor, 16 Wall. 366, 375 (1873).

[205] Kentucky v. Dennison, 24 How. 66, 104 (1861); Pierce v. Creecy, 210 U.S. 387 (1908). See also Marbles v. Creecy, 215 U.S. 63 (1909); Strassheim v. Daily, 221 U.S. 280 (1911); Re Strauss, 197 U.S. 324, 325 (1905).

[206] Munsey v. Clough, 196 U.S. 364 (1905); Pettibone v. Nichols, 203 U.S. 192 (1906).

[207] Drew v. Thaw, 235 U.S. 432 (1914).

[208] Pettibone v. Nichols, 203 U.S. 192, 216 (1906).

[209] Biddinger v. Police Comr., 245 U.S. 128 (1917). See also Rodman v. Pothier, 264 U.S. 399 (1924).

[210] Hyatt v. New York ex rel. Corkran, 188 U.S. 691 (1903). See also South Carolina v. Bailey, 289 U.S. 412 (1933).

[211] Munsey v. Clough, 196 U.S. 364, 375 (1905).

[212] Ker v. Illinois, 119 U.S. 436, 444 (1886); Mahon v. Justice, 127 U.S. 700, 707, 712, 714 (1888).

[213] Cook v. Hart, 146 U.S. 183, 193 (1892); Pettibone v. Nichols, 203 U.S. 192, 215 (1906).

[214] Lascelles v. Georgia, 148 U.S. 537, 543 (1893).

[215] United States v. Rauscher, 119 U.S. 407, 430 (1886).

[216] Prigg v. Pennsylvania, 16 Pet. 539, 612 (1842).

[217] 1 Stat. 302 (1793).

[218] Jones v. Van Zandt, 5 How. 215, 229 (1847); Ableman v. Booth, 21 How. 506 (1859).

[219] Prigg v. Pennsylvania, 16 Pet. 539, 625 (1842).

[220] Moore v. Illinois, 14 How. 13, 17 (1853).

[221] Escanaba & L.M. Transp. Co. v. Chicago, 107 U.S. 678, 689 (1883).

[222] Madison, Journal of the Debates in the Convention which Framed the Constitution, 89 (Hunt's ed., 1908).

[223] Ibid. 274.

[224] Ibid. 275.

[225] Pollard v. Hagan, 3 How. 212, 221 (1845).

[226] 2 Stat. 701, 703 (1812).

[227] Justice Harlan, speaking for the Court in United States v. Texas, 143 U.S. 621, 634 (1892); 9 Stat. 108.

[228] Permoli v. New Orleans, 3 How. 589, 609 (1845); McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914); Illinois Central R. Co. v. Illinois, 146 U.S. 387, 434 (1892); Knight v. United Land Asso., 142 U.S. 161, 183 (1891); Weber v. State Harbor Comrs., 18 Wall. 57, 65 (1873).

[229] Coyle v. Smith, 221 U.S. 559 (1911).

[230] Ibid. 567.

[231] United States v. Texas, 339 U.S. 707, 716 (1950); Stearns v. Minnesota, 179 U.S. 223, 245 (1900).

[232] Pollard v. Hagan, 3 How. 212, 223 (1845); McCabe v. Atchison, T. & S.F.R. Co., 235 U.S. 151 (1914).

[233] Van Brocklin v. Tennessee, 117 U.S. 151, 167 (1886).

[234] Wilson v. Cook, 327 U.S. 474 (1946).

[235] Permoli v. New Orleans, 3 How. 589, 609 (1845); Sands v. Manistee River Imp. Co., 123 U.S. 288, 296 (1887); see also Withers v. Buckley, 20 How. 84, 92 (1858); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1, 9 (1888); Cincinnati v. Louisville & N.R. Co., 223 U.S. 390 (1912); Huse v. Glover, 119 U.S. 543,(1886).

[236] Draper v. United States, 164 U.S. 240 (1896) following United States v. McBratney, 104 U.S. 621 (1882).

[237] Dick v. United States, 208 U.S. 340 (1908); Ex parte Webb, 225 U.S. 663 (1912).

[238] United States v. Sandoval, 231 U.S. 28 (1914).

[239] Boyd v. Nebraska, 143 U.S. 135, 170 (1892).

[240] Baker v. Morton, 12 Wall. 150, 153 (1871).

[241] Freeborn v. Smith, 2 Wall. 160 (1865).

[242] John v. Paullin, 231 U.S. 583 (1913).

[243] Hunt v. Palao, 4 How. 589 (1846). Cf. Benner v. Porter, 9 How. 235, 246 (1850).

[244] 179 U.S. 223, 245 (1900).

[245] How. 212, 223 (1845). See also Martin v. Waddell, 16 Pet. 367, 410 (1842).

[246] United States v. California, 332 U.S. 19, 38 (1947); United States v. Louisiana, 339 U.S. 699 (1950).

[247] 339 U.S. 707, 716 (1950).

[248] Brown v. Grant, 116 U.S. 207, 212 (1886).

[249] Shively v. Bowlby, 152 U.S. 1, 47 (1894). See also Joy v. St. Louis, 201 U.S. 332 (1906).

[250] United States v. Winans, 198 U.S. 371, 378 (1905); Seufert Bros. Co. v. United States, 249 U.S. 194 (1919). A fishing right granted by treaty to Indians does not necessarily preclude the application to Indians of State game laws regulating the time and manner of taking fish. Kennedy v. Becker, 241 U.S. 556 (1916). But it has been held to be violated by the exaction of a license fee which is both regulatory and revenue-producing. Tulee v. Washington, 315 U.S. 681 (1942).

[251] Ward v. Race Horse, 163 U.S. 504, 510, 514 (1896).

[252] 14 Pet. 526 (1840).

[253] Ibid. 533, 538.

[254] Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 335-340 (1936). See also Alabama Power Co. v. Ickes, 302 U.S. 464 (1938).

[255] United States v. Fitzgerald, 15 Pet. 407, 521 (1841). See also California v. Deseret Water, Oil & Irrig. Co., 243 U.S. 415 (1917); Utah Power & Light Co. v. United States, 243 U.S. 389 (1917).

[256] Sioux Tribe v. United States, 316 U.S. 317 (1942); United States v. Midwest Oil Co., 236 U.S. 459, 469 (1915).

[257] Gibson v. Chouteau, 13 Wall. 92, 99 (1872); see also Irvine v. Marshall, 20 How. 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902).

[258] Bagnell v. Broderick, 13 Pet. 436, 450 (1839). See also Field v. Seabury, 19 How. 323, 332 (1857).

[259] Tameling v. United States Freehold & Emigration Co., 93 U.S. 644, 663 (1877). See also United States v. Maxwell Land-Grant and R. Co., 121 U.S. 325, 366 (1887).

[260] Ruddy v. Rossi, 248 U.S. 104 (1918).

[261] Light v. United States, 220 U.S. 523 (1911). See also Hutchings v. Low, 15 Wall. 77 (1873).

[262] Camfield v. United States, 167 U.S. 518, 525 (1897). See also Jourdan v. Barrett, 4 How. 169 (1846); United States v. Waddell, 112 U.S. 76 (1884).

[263] United States v. McGowan, 302 U.S. 535 (1938).

[264] United States v. San Francisco, 310 U.S. 16 (1940).

[265] Van Brocklin v. Tennessee, 117 U.S. 151 (1886); cf. Wilson v. Cook, 327 U.S. 474 (1946).

[266] Gibson v. Chouteau, 13 Wall 92, 99 (1872). See also Irvine v. Marshall, 20 How. 558 (1858); Emblem v. Lincoln Land Co., 184 U.S. 660, 664 (1902).

[267] Wilcox v. Jackson ex dem. M'Connel, 13 Pet. 498, 517 (1839).

[268] Oklahoma v. Texas, 258 U.S. 574, 595 (1922).

[269] United States v. Oregon, 295 U.S. 1, 28 (1935).

[270] Simms v. Simms, 175 U.S. 162, 168 (1899). See also United States v. McMillan, 165 U.S. 504, 510 (1897); El Paso & N.E.R. Co. v. Gutierrez, 215 U.S. 87 (1909); First Nat. Bank v. Yankton County, 101 U.S. 129, 133 (1880).

[271] Binns v. United States, 194 U.S. 486, 491 (1904). See also Sere v. Pitot, 6 Cr. 332, 336 (1810); Murphy v. Ramsey, 114 U.S. 15, 44 (1885).

[272] Walker v. New Mexico & S.P.R. Co., 165 U.S. 593, 604 (1897); Simms v. Simms, 175 U.S. 162, 163 (1899); Wagoner v. Evans, 170 U.S. 588, 591 (1898).

[273] 24 Stat. 170 (1886).

[274] Downes v. Bidwell, 182 U.S. 244, 271 (1901). See also Interstate Commerce Commission v. United States ex rel. Humboldt S.S. Co., 224 U.S. 474 (1912); Church of Jesus Christ of L.D.S. v. United States, 136 U.S. 1, 44 (1890).

[275] Dorr v. United States, 195 U.S. 138, 149 (1904). See also Balzac v. Porto Rico, 258 U.S. 298 (1922).

[276] Rassmussen v. United States, 197 U.S. 516 (1905).

[277] Hawaii v. Mankichi, 190 U.S. 197 (1903); R.M.C. Littler, The Governance of Hawaii, Chap. III (1929).

[278] American Ins. Co. v. Canter, 1 Pet. 511, 546 (1828). See also Romeu v. Todd, 206 U.S. 358, 368 (1907); United States v. McMillan, 165 U.S. 504, 510 (1897); McAllister v. United States, 141 U.S. 174, 180 (1891); The "City of Panama" v. Phelps, 101 U.S. 453, 460 (1880); Reynolds v. United States, 98 U.S. 145, 154 (1879); Hornbuckle v. Toombs, 18 Wall. 648, 655 (1874); Clinton v. Englebrecht, 13 Wall. 434, 447 (1872).

[279] American Ins. Co. v. Canter, 1 Pet. 511, 545 (1828).

[280] 7 How. 1 (1849).

[281] Ibid. 42. See also Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); Mountain Timber Co. v. Washington, 243 U.S. 219, 234 (1917).

[282] 7 Wall. 700, 729 (1869).

[283] Pacific States Teleph. & Teleg. Co. v. Oregon, 223 U.S. 118 (1912); Kiernan v. Portland, 223 U.S. 151 (1912); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916).

[284] Ohio ex rel. Bryant v. Akron Metropolitan Park District, 281 U.S. 74, 80 (1930); O'Neill v. Leamer, 239 U.S. 244 (1915); Highland Farms Dairy Inc. v. Agnew, 300 U.S. 608, 612 (1937); Forsyth v. Hammond, 166 U.S. 506, 519 (1897).

[285] Taylor v. Beckham, 178 U.S. 548 (1900). See also Marshall v. Dye, 231 U.S. 250 (1914).

[286] Minor v. Happersett, 21 Wall. 162, 175 (1875).

[287] 7 How. 1 (1849).

[288] 1 Stat. 424 (1795).

[289] 7 How. 1, 43 (1849).

[290] 158 U.S. 564 (1895).

[291] Ibid. 582.

[292] On the decline in observance of the formalities required by the provision both before and during World War I, see Corwin, The President, Office and Powers (3d ed., 1948), 164-166.

ARTICLE V

MODE OF AMENDMENT

Page Amendment of the Constitution 711 Scope of the amending power 711 Procedure of adoption 712 Submission of amendment 712 Ratification 712 Authentication and proclamation 713 Judicial review under article V 714

MODE OF AMENDMENT

Article V

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Amendment of the Constitution

SCOPE OF AMENDING POWER

When this Article was before the Constitutional Convention, a motion to insert a provision that "no State shall without its consent be affected in its internal policy" was made and rejected.[1] A further attempt to impose a substantive limitation on the amending power was made in 1861, when Congress submitted to the States a proposal to bar any future amendments which would authorize Congress to "interfere, within any State, with the domestic institutions thereof, * * *."[2] Three States ratified this article before the outbreak of the Civil War made it academic.[3] Many years later the validity of both the Eighteenth and Nineteenth Amendments was challenged because of their content. The arguments against the former took a wide range. Counsel urged that the power of amendment is limited to the correction of errors in the framing of the Constitution; that it does not comprehend the adoption of additional or supplementary provisions. They contended further that ordinary legislation cannot be embodied in a constitutional amendment and that Congress cannot constitutionally propose any amendment which involves the exercise or relinquishment of the sovereign powers of a State.[4] The Nineteenth Amendment was attacked on the narrower ground that a State which had not ratified the amendment would be deprived of its equal suffrage in the Senate because its representatives in that body would be persons not of its choosing, i.e., persons chosen by voters whom the State itself had not authorized to vote for Senators.[5] Brushing aside these arguments as unworthy of serious attention, the Supreme Court held both amendments valid.

PROCEDURE OF ADOPTION

Submission of Amendment

When Madison submitted to the House of Representatives the proposals from which the Bill of Rights evolved, he contemplated that they should be incorporated in the text of the original instrument.[6] Instead the House decided to propose them as supplementary.[7] It ignored a suggestion that the two Houses should first resolve that amendments are necessary before considering specific proposals.[8] In the National Prohibition Cases[9] the Supreme Court ruled that in proposing an amendment the two Houses of Congress thereby indicated that they deemed it necessary. That same case also established the proposition that the vote required to propose an amendment was a vote of two thirds of the members present--assuming the presence of a quorum--and not a vote of two thirds of the entire membership present and absent.[10] The approval of the President is not necessary for a proposed amendment.[11]

Ratification

Congress may, in proposing an amendment, set a reasonable time limit for its ratification. Two amendments proposed in 1789, one submitted in 1810 and one in 1861, were never ratified. In Dillon v. Gloss[12] the Court intimated that proposals which were clearly out of date were no longer open for ratification. However, in Coleman v. Miller,[13] it refused to pass upon the question whether the proposed child labor amendment, submitted to the States in 1924, was open to ratification thirteen years later. It held this to be a political question which would have to be resolved by Congress in the event three fourths of the States ever gave their assent to the proposal. With respect to the Eighteenth, Twentieth, Twenty-first and Twenty-second Amendments, Congress included in the text of these proposed amendments a section stating that the article should be inoperative unless ratified within seven years. In Dillon v. Gloss the Court sustained this limitation on the ground that it gave effect to the implication of article V that ratification "must be within some reasonable time after the proposal."[14] Congress has complete freedom of choice between the two methods of ratification recognized by article V--by the legislatures of the States, or conventions in the States. In United States v. Sprague[15] counsel advanced the contention that the Tenth Amendment recognized a distinction between powers reserved to the States and powers reserved to the people, and that State legislatures were competent to delegate only the former to the National Government; delegation of the latter required action of the people through conventions in the several States. The Eighteenth Amendment being of the latter character, the ratification by State legislatures, so the argument ran, was invalid. The Supreme Court rejected the argument. It found the language of article V too clear to admit of reading any exceptions into it by implication.

The term "legislatures" as used in article V means deliberative, representative bodies of the type which in 1789 exercised the legislative power in the several States. It does not comprehend the popular referendum which has subsequently become a part of the legislative process in many of the States, nor may a State validly condition ratification of a proposed constitutional amendment on its approval by such a referendum.[16] In the words of the Court: "* * * the function of a State legislature in ratifying a proposed amendment to the Federal Constitution, like the function of Congress in proposing the amendment, is a federal function derived from the Federal Constitution; and it transcends any limitations sought to be imposed by the people of a State."[17]

Authentication and Proclamation

Formerly official notice from a State legislature, duly authenticated, that it had ratified a proposed amendment went to the Secretary of State, upon whom it was binding, "being certified by his proclamation, [was] conclusive upon the courts" as against any objection which might be subsequently raised as to the regularity of the legislative procedure by which ratification was brought about.[18] This function of the Secretary, purely ministerial in character, was, however, derived from an act of Congress, and was recently transferred to a functionary called Administrator of General Services.[19] In Dillon v. Gloss,[20] the Supreme Court held that the Eighteenth Amendment became operative on the date of ratification by the thirty-sixth State, rather than on the later date of the proclamation issued by the Secretary of State, and doubtless the same rule holds as to a similar proclamation by the Administrator.

JUDICIAL REVIEW UNDER ARTICLE V

Prior to 1939, the Supreme Court had taken cognizance of a number of diverse objections to the validity of specific amendments. Apart from holding that official notice of ratification by the several States was conclusive upon the courts,[21] it had treated these questions as justiciable, although it had uniformly rejected them on the merits. In that year, however, the whole subject was thrown into confusion by the inconclusive decision in Coleman v. Miller.[22] This case came up on a writ of certiorari to the Supreme Court of Kansas to review the denial of a writ of mandamus to compel the Secretary of the Kansas Senate to erase an endorsement on a resolution ratifying the proposed child labor amendment to the Constitution to the effect that it had been adopted by the Kansas Senate. The attempted ratification was assailed on three grounds: (1) that the amendment had been previously rejected by the State legislature; (2) that it was no longer open to ratification because an unreasonable period of time, thirteen years, had elapsed since its submission to the States, and (3) that the lieutenant governor had no right to cast the deciding vote in the Senate in favor of ratification. Four opinions were written in the Supreme Court, no one of which commanded the support of more than four members of the Court. The majority ruled that the plaintiffs, members of the Kansas State Senate, had a sufficient interest in the controversy to give the federal courts jurisdiction to review the case. Without agreement as to the grounds for their decision, a different majority affirmed the judgment of the Kansas court denying the relief sought. Four members who concurred in the result had voted to dismiss the writ on the ground that the amending process "is 'political' in its entirety, from submission until an amendment becomes part of the Constitution, and is not subject to judicial guidance, control or interference at any point."[23] Whether the contention that the lieutenant governor should have been permitted to cast the deciding vote in favor of ratification presented a justiciable controversy was left undecided, the Court being equally divided on the point.[24] In an opinion reported as "the opinion of the Court," but in which it appears that only three Justices concurred, Chief Justice Hughes declared that the writ of mandamus was properly denied because the question as to the effect of the previous rejection of the amendment and the lapse of time since it was submitted to the States were political questions which should be left to Congress.[25] On the same day, the Court dismissed a writ of certiorari to review a decision of the Kentucky Court of Appeals declaring the action of the Kentucky General Assembly purporting to ratify the child labor amendment illegal and void. Inasmuch as the governor had forwarded the certified copy of the resolution to the Secretary of State before being served with a copy of the restraining order issued by the State court, the Supreme Court found that there was no longer a controversy susceptible of judicial determination.[26]

Notes

[1] II Madison, Journal of Debates in the Constitutional Convention, 385-386 (Hunt's ed., 1908).

[2] Cong. Globe, 1263 (1861).

[3] Ames, Herman V., Proposed Amendments to the Constitution, 363 (1896).

[4] Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).

[5] Leser v. Garnett, 258 U.S. 130 (1922).

[6] Annals of Congress 433-436 (1789).

[7] Ibid. 717.

[8] Ibid. 430.

[9] Rhode Island v. Palmer, 253 U.S. 350, 386 (1920).

[10] Ibid.

[11] Hollingsworth v. Virginia, 3 Dall. 378 (1798).

[12] 256 U.S. 368, 375 (1921).

[13] 307 U.S. 433 (1939).

[14] 256 U.S. 368, 375 (1921).

[15] 282 U.S. 716 (1931).

[16] Hawke v. Smith, 253 U.S. 221, 231 (1920).

[17] Leser v. Garnett, 258 U.S. 130, 137 (1922).

[18] Leser v. Garnett, 258 U.S. 130, 137 (1922).

[19] 64 Stat. 979 (1950).

[20] 256 U.S. 368, 376 (1921).

[21] Leser v. Garnett, 258 U.S. 130 (1922).

[22] 307 U.S. 433 (1939). Cf. Fairchild v. Hughes, 258 U.S. 126 (1922), wherein the Court held that a private citizen could not sue in the federal courts to secure an indirect determination of the validity of a constitutional amendment about to be adopted.

[23] 307 U.S. 433, 459 (1939).

[24] Ibid. 446, 447.

[25] Ibid. 450, 456.

[26] Chandler v. Wise, 307 U.S. 474 (1939).

ARTICLE VI

MISCELLANEOUS PROVISIONS

Page Clause 1. Validity of debts and engagements 721 Clause 2. Supremacy of the Constitution, etc. 721 National supremacy 721 Marshall's interpretation of the clause 721 Supremacy Clause versus Tenth Amendment 722 Status of the issue today 723 Task of the Supreme Court under the clause 724 Federal instrumentalities and the State police power 725 Obligation of State courts under the Supremacy Clause 726 Immunity of the federal judicial process 727 Effect of laws passed by States in insurrection 728 Doctrine of tax exemption 728 McCulloch v. Maryland 728 Applicability of doctrine in re federal securities, etc. 729 Taxability of government contractors 730 Status of doctrine today 731 Ad valorem taxes under doctrine 732 Public property and functions 732 Fiscal institutions; legislative exemptions 733 Atomic Energy Commission 734 Royalties; a judicial anticlimax 734 Immunity of lessees of Indian lands 735 Summation and evaluation 735 Clause 3. Oath of office 736 Power of Congress in respect to oaths 736 National duties of State officers 736

MISCELLANEOUS PROVISIONS

Article VI

Clause 1. All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.

Clause 2. This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

National Supremacy

MARSHALL'S INTERPRETATION OF THE CLAUSE

Although the Supreme Court had held prior to Marshall's appointment to the Bench, that the supremacy clause rendered null and void a State constitutional or statutory provision which was inconsistent with a treaty executed by the Federal Government,[1] it was left for him to develop the full significance of the clause as applied to acts of Congress. By his vigorous opinions in McCulloch v. Maryland[2] and Gibbons v. Ogden[3] he gave the principle a vitality which survived a century of vacillation under the doctrine of dual federalism. In the former case, he asserted broadly that "the States have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government. This is, we think, the unavoidable consequence of that supremacy which the Constitution has declared."[4] From this he concluded that a State tax upon notes issued by a branch of the Bank of the United States was void. In Gibbons v. Ogden, the Court held that certain statutes of New York granting an exclusive right to use steam navigation on the waters of the State were null and void insofar as they applied to vessels licensed by the United States to engage in coastwise trade. Said the Chief Justice: "In argument, however, it has been contended, that if a law passed by a State, in the exercise of its acknowledged sovereignty, comes into conflict with a law passed by Congress in pursuance of the Constitution, they affect the subject, and each other, like equal opposing powers. But the framers of our Constitution foresaw this state of things, and provided for it, by declaring the supremacy not only of itself, but of the laws made in pursuance of it. The nullity of an act, inconsistent with the Constitution, is produced by the declaration, that the Constitution is the supreme law. The appropriate application of that part of the clause which confers the same supremacy on laws and treaties, is to such acts of the State legislatures as do not transcend their powers, but though enacted in the execution of acknowledged State powers, interfere with, or are contrary to the laws of Congress, made in pursuance of the Constitution, or some treaty made under the authority of the United States. In every such case, the act of Congress, or the treaty, is supreme; and the law of the State, though enacted in the exercise of powers not controverted, must yield to it."[5]

SUPREMACY CLAUSE VERSUS TENTH AMENDMENT

The logic of the supremacy clause would seem to require that the powers of Congress be determined by the fair reading of the express and implied grants contained in the Constitution itself, without reference to the powers of the States. For a century after Marshall's death, however, the Court proceeded on the theory that the Tenth Amendment had the effect of withdrawing various matters of internal police from the reach of power expressly committed to Congress. This point of view was originally put forward in New York v. Miln,[6] which was first argued, but not decided, before Marshall's death. The Miln Case involved a New York statute which required the captains of vessels entering New York Harbor with aliens aboard to make a report in writing to the Mayor of the City, giving certain prescribed information. It might have been distinguished from Gibbons v. Ogden on the ground that the statute involved in the earlier case conflicted with an act of Congress, whereas the Court found that no such conflict existed in this case. But the Court was unwilling to rest its decision on that distinction. Speaking for the majority, Justice Barbour seized the opportunity to proclaim a new doctrine. He wrote: "But we do not place our opinion on this ground. We choose rather to plant ourselves on what we consider impregnable positions. They are these: That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States. That, by virtue of this, it is not only the right, but the bounden and solemn duty of a State, to advance the safety, happiness and prosperity of its people, and to provide for its general welfare, by any and every act of legislation, which it may deem to be conducive to these ends; where the power over the particular subject, or the manner of its exercise is not surrendered or restrained, in the manner just stated. That all those powers which relate to merely municipal legislation, or what may, perhaps, more properly be called internal police, are not thus surrendered or restrained; and that, consequently, in relation to these, the authority of a State is complete, unqualified, and exclusive."[7] Justice Story, in dissent, stated that Marshall had heard the previous argument and reached the conclusion that the New York statute was unconstitutional.[8]

Status of the Issue Today

The conception of a "complete, unqualified and exclusive" police power residing in the States and limiting the powers of the National Government was endorsed by Chief Justice Taney ten years later in the License Cases.[9] In upholding State laws requiring licenses for the sale of alcoholic beverages, including those imported from other States or from foreign countries, he set up the Supreme Court as the final arbiter in drawing the line between the mutually exclusive, reciprocally limiting fields of power occupied by the National and State Governments.[10] This view has, in effect, and it would seem in theory also, been repudiated in recent cases upholding labor relations,[11] social security,[12] and fair labor standards acts[13] passed by Congress.

TASK OF THE SUPREME COURT UNDER THE CLAUSE

In applying the supremacy clause to subjects which have been regulated by Congress, the primary task of the Court is to ascertain whether a challenged State law is compatible with the policy expressed in the federal statute. When Congress condemns an act as unlawful, the extent and nature of the legal consequences of the condemnation are federal questions, the answers to which are to be derived from the statute and the policy which it has adopted. To the federal statute and policy, conflicting State law and policy must yield.[14] But Congress in enacting legislation within its constitutional authority will not be deemed to have intended to strike down a State statute to protect the health and safety of the public unless its purpose to do so is clearly manifested.[15]

When the United States performs its functions directly, through its own officers and employees, State police regulations clearly are inapplicable. In reversing the conviction of the governor of a national soldiers' home for serving oleomargarine in disregard of State law, the Court said that the federal officer was not "subject to the jurisdiction of the State in regard to those very matters of administration which are thus approved by Federal authority."[16] An employee of the Post Office Department is not required to submit to examination by State authorities concerning his competence and to pay a license fee before performing his official duty in driving a motor truck for transporting the mail.[17] To Arizona's complaint, in a suit to enjoin the construction of Boulder Dam, that her quasi-sovereignty would be invaded by the building of the dam without first securing approval of the State engineer as required by its laws, Justice Brandeis replied that, "if Congress has power to authorize the construction of the dam and reservoir, Wilbur [Secretary of the Interior] is under no obligation to submit the plans and specifications to the State Engineer for approval."[18]

FEDERAL INSTRUMENTALITIES AND THE STATE POLICE POWER

Federal instrumentalities and agencies have never enjoyed the same degree of immunity from State police regulation as from State taxation. The Court has looked to the nature of each regulation to determine whether it is compatible with the functions committed by Congress to the federal agency. This problem has arisen most often with reference to the applicability of State laws to the operation of national banks. Two correlative propositions have governed the decisions in these cases. The first was stated by Justice Miller in First National Bank v. Kentucky:[19] "[National banks are] subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the Nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional."[20] In Davis v. Elmira Savings Bank,[21] the Court stated the second proposition thus: "National banks are instrumentalities of the Federal Government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States. It follows that an attempt, by a State, to define their duties or control the conduct of their affairs is absolutely void, wherever such attempted exercise of authority expressly conflicts with the laws of the United States, and either frustrates the purpose of the national legislation or impairs the efficiency of these agencies of the Federal Government to discharge the duties, for the performance of which they were created."[22] Instructive, too, is a comparison of two other decisions. In the first,[23] the Court held that the fact that the Texas and Pacific Railway Company was a corporation organized under a statute of the United States did not remove it from the control of the Texas railroad commission as to business done wholly within the State. In the second,[24] the Court vetoed the attempt of Maryland to require a post office employee to cease driving a United States motor truck in the transportation of mail over a post road until he should obtain a license by submitting to examination before a State official and paying a fee. "Of course," said Justice Holmes, "an employee of the United States does not secure a general immunity from State law while acting in the course of his employment"; but this time the State went too far.

The extent to which States may go in regulating contractors who furnish goods or services to the Federal Government is not as clearly established as is their right to tax such dealers. In 1943, a closely divided Court sustained the refusal of the Pennsylvania Milk Control Commission to renew the license of a milk dealer who, in violation of State law, had sold milk to the United States for consumption by troops at an army camp located on land belonging to the State, at prices below the minima established by the Commission.[25] The majority was unable to find in Congressional legislation, or in the Constitution, unaided by Congressional enactment, any immunity from such price-fixing regulations. On the same day, a different majority held that California could not penalize a milk dealer for selling milk to the War Department at less than the minimum price fixed by State law where the sales and deliveries were made in a territory which had been ceded to the Federal Government by the State and were subject to the exclusive jurisdiction of the former.[26]

OBLIGATION OF STATE COURTS UNDER THE SUPREMACY CLAUSE

The Constitution, laws and treaties of the United States are as much a part of the law of every State as its own local laws and Constitution. Their obligation "is imperative upon the State judges, in their official and not merely in their private capacities. From the very nature of their judicial duties, they would be called upon to pronounce the law applicable to the case in judgment. They were not to decide merely according to the laws or Constitution of the State, but according to the laws and treaties of the United States--'the supreme law of the land.'"[27] State courts have both the power and the duty to enforce obligations arising under federal law, unless Congress gives the federal courts exclusive jurisdiction. The power of State courts to entertain such suits was affirmed in Claflin v. Houseman[28] in 1876, thus setting at rest the doubts which had been raised by an early dictum of Justice Story.[29] In the Claflin case Justice Bradley asserted on behalf of a unanimous court that: "If an Act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court. The fact that a State court derives its existence and functions from the State laws is no reason why it should not afford relief, because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the State laws."[30] When the Supreme Court of Connecticut held that rights created by the Federal Employer's Liability Acts could not be enforced in the courts of that State because the act was contrary to State policy, the Supreme Court unanimously reversed that decision. Said Justice Van Devanter: "The suggestion that the act of Congress is not in harmony with the policy of the State, and therefore that the courts of the State are free to decline jurisdiction, is quite inadmissible, because it presupposes what in legal contemplation does not exist. When Congress, in the exertion of the power confided to it by the Constitution, adopted that act, it spoke for all the people and all the States, and thereby established a policy for all. That policy is as much the policy of Connecticut as if the act had emanated from its own legislature, and should be respected accordingly in the courts of the State."[31] Even if a federal statute is penal in character, a State may not refuse to enforce it if Congress allows it to take concurrent jurisdiction. In Testa v. Katt,[32] the Supreme Court reversed a holding of Rhode Island's highest court that, inasmuch as a State need not enforce the penal laws of another jurisdiction, a suit for treble damages for violation of OPA regulations could not be maintained in the courts of the State. Without determining the nature of the statute, it affirmed once more without dissent that "the policy of the federal Act is the prevailing policy in every state."[33]

IMMUNITY OF THE FEDERAL JUDICIAL PROCESS

It would seem self-evident that a State court cannot interfere with the functioning of a federal tribunal. But this proposition has not always gone unchallenged. Shortly before the Civil War, the Supreme Court of Wisconsin, holding the federal fugitive slave law invalid, ordered a United States marshal to release a prisoner who had been convicted of aiding and abetting the escape of a fugitive slave. In a further act of defiance, the State court instructed its clerk to disregard and refuse obedience to the writ of error issued by the United States Supreme Court. Strongly denouncing this interference with federal authority, Chief Justice Taney held that when a State court is advised, on the return of a writ of habeas corpus, that the prisoner is in custody on authority of the United States, it can proceed no further.[34] To protect the performance of its functions against interference by State tribunals, Congress may constitutionally authorize the removal to a federal court of a criminal prosecution commenced in a State court against a revenue officer of the United States on account of any act done under color of his office.[35] In the celebrated case of Cunningham v. Neagle,[36] a United States marshal who, while assigned to protect Justice Field, killed the man who had been threatening the life of the latter, was charged with murder by the State of California. Invoking the supremacy clause, the Supreme Court held that a person could not be guilty of a crime under State law for doing what it was his duty to do as an officer of the United States.

EFFECT OF LAWS PASSED BY STATES IN INSURRECTION

Since the efforts of States to depart from the Union, if successful, would have been pro tanto a destruction of the Constitution,[37] the ordinances of secession adopted by the Confederate States,[38] and all acts of legislation intended to give effect to such ordinances,[39] were treated as absolute nullities. The obligation of every State, as a member of the Union, and the obligation of every citizen of the State, as a citizen of the United States, remained perfect and unimpaired.[40] But acts necessary to peace and good order among citizens, such, for example, as acts sanctioning and protecting marriage and domestic relations, governing the course of descents, regulating the conveyance of property, real and personal, and providing remedies for injuries to person and estate, and other similar acts, which would be valid if emanating from a lawful government, were regarded in general as valid when proceeding from an actual, though unlawful government.[41]

The Doctrine of Tax Exemption

McCULLOCH v. MARYLAND

Five years after the decision in McCulloch v. Maryland that a State may not tax an instrumentality of the Federal Government, the Court was asked to and did reexamine the entire question in Osborn v. Bank of the United States.[42] In that case counsel for the State of Ohio, whose attempt to tax the Bank was challenged, put forward two arguments of great importance. In the first place it was "contended, that, admitting Congress to possess the power, this exemption ought to have been expressly asserted in the act of incorporation; and, not being expressed, ought not to be implied by the Court."[43] To which Marshall replied that: "It is no unusual thing for an act of Congress to imply, without expressing, this very exemption from state control, which is said to be so objectionable in this instance."[44] Secondly the appellants relied "greatly on the distinction between the bank and the public institutions, such as the mint or the post-office. The agents in those offices are, it is said, officers of government, * * * Not so the directors of the bank. The connection of the government with the bank, is likened to that with contractors."[45] Marshall accepted this analogy, but not to the advantage of the appellants. He simply indicated that all contractors who dealt with the Government were entitled to immunity from taxation upon such transactions.[46] Thus not only was the decision of McCulloch v. Maryland reaffirmed but the foundation was laid for the vast expansion of the principle of immunity that was to follow in the succeeding decades.

APPLICABILITY OF DOCTRINE IN RE FEDERAL SECURITIES, ETC.

The first significant extension of the doctrine of the immunity of federal instrumentalities from State taxation came in Weston v. Charleston,[47] where Chief Justice Marshall also found in the supremacy clause a bar to State taxation of obligations of the United States. During the Civil War, when Congress authorized the issuance of legal tender notes, it explicitly declared that such notes, as well as United States bonds and other securities, should be exempt from State taxation.[48] A modified version of this section remains on the statute books today.[49] The right of Congress to exempt legal tender notes to the same extent as bonds was sustained in People v. Board of Supervisors[50] over the objection that such notes circulated as money and should be taxable in the same way as coin. But a State tax on checks issued by the Treasurer of the United States for interest accrued upon government bonds was sustained since it did not in any wise affect the credit of the National Government.[51] Similarly, the assessment for an ad valorem property tax of an open account for money due under a federal contract,[52] and the inclusion of the value of United States bonds owned by a decedent, in measuring an inheritance tax,[53] were held valid, since neither tax would substantially embarrass the power of the United States to secure credit.

Income from federal securities is also beyond the reach of the State taxing power as the cases now stand.[54] Nor can such a tax be imposed indirectly upon the stockholders on such part of the corporate dividends as corresponds to the part of the corporation's income which is not assessed, i.e., income from tax exempt bonds.[55] A State may constitutionally levy an excise tax on corporations for the privilege of doing business, and measure the tax by the property or net income of the corporation, including tax exempt United States securities or the income derived therefrom.[56] The designation of a tax is not controlling.[57] Where a so-called "license tax" upon insurance companies, measured by gross income, including interest on government bonds, was, in effect, a commutation tax levied in lieu of other taxation upon the personal property of the taxpayer, it was still held to amount to an unconstitutional tax on the bonds themselves.[58]

TAXATION OF GOVERNMENT CONTRACTORS

In the course of his opinion in Osborn v. Bank of the United States,[59] Chief Justice Marshall posed the question: "Can a contractor for supplying a military post with provisions, be restrained from making purchases within any state, or from transporting the provisions to the place at which the troops were stationed? or could he be fined or taxed for doing so? We have not yet heard these questions answered in the affirmative."[60] One hundred and thirteen years later, the Court did answer the last part of his inquiry in the affirmative. In James v. Dravo Contracting Company[61] it held that a State may impose an occupation tax upon an independent contractor, measured by his gross receipts under contracts with the United States. Previously it had sustained a gross receipts tax levied in lieu of a property tax upon the operator of an automobile stage line, who was engaged in carrying the mails as an independent contractor,[62] and an excise tax on gasoline sold to a contractor with the Federal Government and used to operate machinery in the construction of levees in the Mississippi River.[63] Subsequently it has approved State taxes on the net income of a government contractor,[64] income[65] and social security[66] taxes on the operators of bath houses maintained in a National Park under a lease from the United States; sales and use taxes on sales of beverages by a concessionaire in a National Park,[67] and on purchases of materials used by a contractor in the performance of a cost-plus contract with the United States,[68] and a severance tax imposed on a contractor who severed and purchased timber from lands owned by the United States.[69]

STATUS OF DOCTRINE TODAY

Of a piece with James v. Dravo Contracting Co. was the decision in Graves v. O'Keefe,[70] handed down two years later. Repudiating the theory "that a tax on income is legally or economically a tax on its source," the Court held that a State could levy a nondiscriminatory income tax upon the salary of an employee of a government corporation. In the opinion of the Court, Justice Stone intimated that Congress could not validly confer such an immunity upon federal employees. He wrote: "The burden, so far as it can be said to exist or to affect the government in any indirect or incidental way, is one which the Constitution presupposes; and hence it cannot rightly be deemed to be within an implied restriction upon the taxing power of the national and state governments which the Constitution has expressly granted to one and has confirmed to the other. The immunity is not one to be implied from the Constitution, because if allowed it would impose to an inadmissible extent a restriction on the taxing power which the Constitution has reserved to the state governments."[71] Chief Justice Hughes concurred in the result without opinion. Justices Butler and McReynolds dissented and Justice Frankfurter wrote a concurring opinion in which he reserved judgment as to "whether Congress may, by express legislation, relieve its functionaries from their civic obligations to pay for the benefits of the State governments under which they live...."[72]

AD VALOREM TAXES UNDER THE DOCTRINE

Property owned by a federally chartered corporation engaged in private business is subject to State and local ad valorem taxes. This was conceded in McCulloch v. Maryland,[73] and confirmed a half century later with respect to railroads incorporated by Congress.[74] Similarly, a property tax may be levied against the lands under water which are owned by a person holding a license under the Federal Water Power Act.[75] Land conveyed by the United States to a corporation for dry dock purposes was subject to a general property tax, despite a reservation in the conveyance of a right to free use of the dry dock and a provision for forfeiture in case of the continued unfitness of the dry dock for use, or the use of the land for other purposes.[76] Where equitable title has passed to the purchaser of land from the Government, a State may tax the equitable owner on the full value thereof, despite the retention of legal title by the Government,[77] but the equitable title passes otherwise.[78] Recently a divided Court held that where the Government purchased movable machinery and leased it to a private contractor, the lessee could not be taxed on the full value of the equipment.[79] In the pioneer case of Van Brocklin v. Tennessee,[80] the State was denied the right to sell for taxes lands which the United States owned at the time the taxes were levied, but in which it had ceased to have any interest at the time of sale. Nor can a State assess land in the hands of private owners for benefits from a road improvement completed while it was owned by the United States.[81]

PUBLIC PROPERTY AND FUNCTIONS

Property owned by the United States is, of course, wholly immune to State taxation.[82] No State can regulate, by the imposition of an inspection fee, any activity carried on by the United States directly through its own agents and employees.[83] An early case whose authority is now uncertain held invalid a flat rate tax on telegraphic messages, as applied to messages sent by public officers on official business.[84]

FISCAL INSTITUTIONS; LEGISLATIVE EXEMPTIONS

Fiscal institutions chartered by Congress, their shares and their property, are taxable only with the consent of Congress and only in conformity with the restrictions it has attached to its consent.[85] Immediately after the Supreme Court construed the statute authorizing the States to tax national bank shares as allowing a tax on the preferred shares of such a bank held by the Reconstruction Finance Corporation,[86] Congress passed a law exempting such shares from taxation. The Court upheld this measure saying, "when Congress authorized the States to impose such taxation, it did no more than gratuitously grant them political power which they theretofore lacked. Its sovereign power to revoke the grant remained unimpaired, the grant of the privilege being only a declaration of legislative policy changeable at will."[87] In Pittman v. Home Owners' Loan Corporation[88] the Court sustained the power of Congress under the necessary and proper clause to immunize the activities of the Corporation from state taxation; and in Federal Land Bank v. Bismarck Lumber Co.,[89] the like result was reached with respect to an attempt by the State to impose a retail sales tax on a sale of lumber and other building materials to the bank for use in repairing and improving property that had been acquired by foreclosure of mortgages. The State's principal argument proceeded thus: "Congress has authority to extend immunity only to the governmental functions of the federal land banks; the only governmental functions of the land banks are those performed by acting as depositaries and fiscal agents for the federal government and providing a market for governmental bonds; all other functions of the land banks are private; petitioner here was engaged in an activity incidental to its business of lending money, an essentially private function; therefore Sec. 26 cannot operate to strike down a sales tax upon purchases made in furtherance of petitioner's lending functions."[90] The Court rejected this argument and invalidated the tax saying: "The argument that the lending functions of the federal land banks are proprietary rather than governmental misconceives the nature of the federal government with respect to every function which it performs. The federal government is one of delegated powers, and from that it necessarily follows that any constitutional exercise of its delegated powers is governmental. * * * It also follows that, when Congress constitutionally creates a corporation through which the federal government lawfully acts, the activities of such corporation are governmental."[91] However, in the absence of federal legislation, a state law laying a percentage tax on the users of safety deposit services, measured by the banks' charges therefor, was held valid as applied to national banks. The tax, being on the user, did not, the Court held, impose an intrinsically unconstitutional burden on a federal instrumentality.[92]

THE ATOMIC ENERGY COMMISSION; "ACTIVITIES" OF

In the recent case of Carson v. Roane-Anderson Co.,[93] the Court was confronted with an attempt on the part of Tennessee to apply its tax on the use within the State of goods purchased elsewhere to a private contractor for the Atomic Energy Commission and to vendors of such contractors. This, the Court held, could not be done under Section 9 b of the Atomic Energy Commission Act, which provides in part that: "The Commission, and the property, activities, and income of the Commission, are hereby expressly exempted from taxation in any manner or form by any State, county, municipality, or any subdivision thereof."[94] The power of exemption, said the Court, "stems from the power to preserve and protect functions validly authorized--the power to make all laws necessary and proper for carrying into execution the powers vested in Congress."[95] The term, "activities," as used in the Act described, was held to be nothing less "than all of the functions of the Commission."[96]

ROYALTIES; A JUDICIAL ANTICLIMAX

In 1928 the Court went so far as to hold that a State could not tax as income royalties for the use of a patent issued by the United States.[97] This proposition was soon overruled in Fox Film Corp. v. Doyal,[98] where a privilege tax based on gross income and applicable to royalties from copyrights was upheld. Likewise a State may lay a franchise tax on corporations, measured by the net income from all sources, and applicable to income from copyright royalties.[99]

IMMUNITY OF LESSEES OF INDIAN LANDS

Another line of anomalous decisions conferring tax immunity upon lessees of restricted Indian lands was overruled in 1949. The first of these cases, Choctaw O. & G.R. Co. v. Harrison,[100] held that a gross production tax on oil, gas and other minerals was an occupational tax, and, as applied to a lessee of restricted Indian lands, was an unconstitutional burden on such lessee, who was deemed to be an instrumentality of the United States. Next the Court held the lease itself a federal instrumentality immune from taxation.[101] A modified gross production tax imposed in lieu of all ad valorem taxes was invalidated in two per curiam decisions.[102] In Gillespie v. Oklahoma[103] a tax upon the net income of the lessee derived from sales of his share of oil produced from restricted lands also was condemned. Finally a petroleum excise tax upon every barrel of oil produced in the State was held inapplicable to oil produced on restricted Indian lands.[104] In harmony with the trend to restricting immunity implied from the Constitution to activities of the Government itself, the Court overruled all these decisions in Oklahoma Tax Comm'n v. Texas Co. and held that a lessee of mineral rights in restricted Indian lands was subject to nondiscriminatory gross production and excise taxes, so long as Congress did not affirmatively grant them immunity.[105]

SUMMATION AND EVALUATION

Although McCulloch v. Maryland and Gibbons v. Ogden were expressions of a single thesis--the supremacy of the National Government--their development after Marshall's death has been sharply divergent. During the period when Gibbons v. Ogden was eclipsed by the theory of dual federalism, the doctrine of McCulloch v. Maryland was not merely followed but greatly extended as a restraint on State interference with federal instrumentalities. Conversely, the Court's recent return to Marshall's conception of the powers of Congress has coincided with a retreat from the more extreme positions taken in reliance upon McCulloch v. Maryland. Today the application of the supremacy clause is becoming, to an ever increasing degree, a matter of statutory interpretation--a determination of whether State regulations can be reconciled with the language and policy of federal enactments. In the field of taxation, the Court has all but wiped out the private immunities previously implied from the Constitution without explicit legislative command. Broadly speaking, the immunity which remains is limited to activities of the Government itself, and to that which is explicitly created by statute, e.g., that granted to federal securities and to fiscal institutions chartered by Congress. But the term, activities, will be broadly construed.

Clause 3. The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Oath of Office

POWER OF CONGRESS IN RESPECT TO OATHS

Congress may require no other oath of fidelity to the Constitution, but it may superadd to this oath such other oath of office as its wisdom may require.[106] It may not, however, prescribe a test oath as a qualification for holding office, such an act being in effect an ex post facto law;[107] and the same rule holds in the case of the States.[108]

NATIONAL DUTIES OF STATE OFFICERS

Commenting in The Federalist No. 27 on the requirement that State officers, as well as members of the State legislatures, shall be bound by oath or affirmation to support this Constitution, Hamilton wrote: "Thus the legislatures, courts, and magistrates, of the respective members, will be incorporated into the operations of the national government as far as its just and constitutional authority extends; and it will be rendered auxiliary to the enforcement of its laws." The younger Pinckney had expressed the same idea on the floor of the Philadelphia Convention: "They [the States] are the instruments upon which the Union must frequently depend for the support and execution of their powers, * * *"[109] Indeed, the Constitution itself lays many duties, both positive and negative, upon the different organs of State government,[110] and Congress may frequently add others, provided it does not require the State authorities to act outside their normal jurisdiction. Early Congressional legislation contains many illustrations of such action by Congress.

The Judiciary Act of 1789[111] left the State courts in sole possession of a large part of the jurisdiction over controversies between citizens of different States and in concurrent possession of the rest. By other sections of the same act State courts were authorized to entertain proceedings by the United States itself to enforce penalties and forfeitures under the revenue laws, while any justice of the peace or other magistrate of any of the States was authorized to cause any offender against the United States to be arrested and imprisoned or bailed under the usual mode of process. Even as late as 1839, Congress authorized all pecuniary penalties and forfeitures under the laws of the United States to be sued for before any court of competent jurisdiction in the State where the cause of action arose or where the offender might be found.[112] Pursuant also of the same idea of treating State governmental organs as available to the National Government for administrative purposes, the act of 1793 entrusted the rendition of fugitive slaves in part to national officials and in part of State officials and the rendition of fugitives from justice from one State to another exclusively to the State executives.[113] Certain later acts empowered State courts to entertain criminal prosecutions for forging paper of the Bank of the United States and for counterfeiting coin of the United States,[114] while still others conferred on State judges authority to admit aliens to national citizenship and provided penalties in case such judges should utter false certificates of naturalization--provisions which are still on the statute books.[115]

With the rise of the doctrine of States Rights and of the equal sovereignty of the States with the National Government, the availability of the former as instruments of the latter in the execution of its power, came to be questioned.[116] In Prigg v. Pennsylvania,[117] decided in 1842, the constitutionality of the provision of the act of 1793 making it the duty of State magistrates to act in the return of fugitive slaves was challenged; and in Kentucky v. Dennison,[118] decided on the eve of the Civil War, similar objection was leveled against the provision of the same act which made it "the duty" of the Chief Executive of a State to render up a fugitive from justice upon the demand of the Chief Executive of the State from which the fugitive had fled. The Court sustained both provisions, but upon the theory that the cooperation of the State authorities was purely voluntary. In the Prigg Case the Court, speaking by Justice Story, said: "* * * state magistrates may, if they choose, exercise the authority, [conferred by the act] unless prohibited by state legislation."[119] In the Dennison Case, "the duty" of State executives in the rendition of fugitives from justice was construed to be declaratory of a "moral duty." Said Chief Justice Taney for the Court: "The act does not provide any means to compel the execution of this duty, nor inflict any punishment for neglect or refusal on the part of the Executive of the State; nor is there any clause or provision in the Constitution which arms the Government of the United States with this power. Indeed, such a power would place every State under the control and dominion of the General Government, even in the administration of its internal concerns and reserved rights. And we think it clear, that the Federal Government, under the Constitution, has no power to impose on a State officer, as such, any duty whatever, and compel him to perform it; for if it possessed this power, it might overload the officer with duties which would fill up all his time, and disable him from performing his obligations to the State, and might impose on him duties of a character incompatible with the rank and dignity to which he was elevated by the State. It is true," the Chief Justice conceded, "that in the early days of the Government, Congress relied with confidence upon the co-operation and support of the States, when exercising the legitimate powers of the General Government, and were accustomed to receive it, [but this, he explained, was] upon principles of comity, and from a sense of mutual and common interest, where no such duty was imposed by the Constitution."[120]

Eighteen years later, in Ex parte Siebold[121] the Court sustained the right of Congress, under article I, section 4, paragraph 1 of the Constitution, to impose duties upon State election officials in connection with a Congressional election and to prescribe additional penalties for the violation by such officials of their duties under State law. While the doctrine of the holding is expressly confined to cases in which the National Government and the States enjoy "a concurrent power over the same subject matter," no attempt is made to catalogue such cases. Moreover, the outlook of Justice Bradley's opinion for the Court is decidedly nationalistic rather than dualistic, as is shown by the answer made to the contention of counsel "that the nature of sovereignty is such as to preclude the joint cooperation of two sovereigns, even in a matter in which they are mutually concerned." To this Justice Bradley replied: "As a general rule, it is no doubt expedient and wise that the operations of the State and national governments should, as far as practicable, be conducted separately, in order to avoid undue jealousies and jars and conflicts of jurisdiction and power. But there is no reason for laying this down as a rule of universal application. It should never be made to override the plain and manifest dictates of the Constitution itself. We cannot yield to such a transcendental view of state sovereignty. The Constitution and laws of the United States are the supreme law of the land, and to these every citizen of every State owes obedience, whether in his individual or official capacity."[122] Three years earlier the Court, speaking also by Justice Bradley, sustained a provision of the Bankruptcy Act of 1867 giving assignees a right to sue in State courts to recover the assets of a bankrupt. Said the Court: The statutes of the United States are as much the law of the land in any State as are those of the State; and although exclusive jurisdiction for their enforcement may be given to the federal courts, yet where it is not given, either expressly or by necessary implication, the State courts having competent jurisdiction in other respects, may be resorted to.[123]

The Selective Service Act of 1917[124] was enforced to a great extent through State "employees who functioned under State supervision";[125] and State officials were frequently employed by the National Government in the enforcement of National Prohibition.[126] Nowadays, there is constant cooperation, both in peacetime and in wartime, in many fields between National and State Officers and official bodies.[127] This relationship obviously calls for the active fidelity of both categories of officialdom to the Constitution.

Notes

[1] On the supremacy of treaties over conflicting State law, see pp. 414-418. The supremacy due to treaties has, within recent years, been extended to certain executive agreements. See Justice Douglas in United States v. Pink, 315 U.S. 203 (1942). As to the supremacy of Congressional legislation implementing the national judicial power, see Tennessee v. Davis, 100 U.S. 257, 266-267 (1880); and Ex parte Siebold, 100 U.S. 404 (1880).

[2] 4. Wheat. 316 (1819). Marshall had anticipated his argument in this case in 1805, in United States v. Fisher, 2 Cr. 358 (1805), in which he upheld the act of 1797 asserting for the United States a priority of its claims over those of the States. See Chief Justice Taft's opinion in Spokane County v. United States, 279 U.S. 80, 87 (1929), where United States v. Fisher is followed; also 1 Warren, Supreme Court in United States History, 372, 538 ff.

[3] 9 Wheat. 1 (1824).

[4] 4 Wheat. 316, 436 (1819).

[5] 9 Wheat. 1, 210-211 (1824).

[6] 11 Pet. 102 (1837).

[7] Ibid. 139.

[8] Ibid. 161.

[9] 5 How. 504 (1847).

[10] Ibid. 573-574.

[11] National Labor Relations Board v. Jones & Laughlin Steel Corporation, 301 U.S. 1 (1937).

[12] Steward Machine Co. v. Davis, 301 U.S. 548 (1937); Helvering v. Davis, 301 U.S. 619 (1937).

[13] United States v. Darby, 312 U.S. 100 (1941); see especially ibid. 113-124.

[14] Sola Electric Co. v. Jefferson Electric Co., 317 U.S. 173, 170 (1942); Hill v. Florida, 325 U.S. 538 (1945); see also Testa v. Katt, 330 U.S. 380, 391 (1947); Francis v. Southern Pacific Co. 333 U.S. 445 (1918); and Bus Employers v. Wisconsin Board, 340 U.S. 383 (1951).

[15] Southern Pacific Co. v. Arizona, 825 U.S. 761 (1945); Rice v. Santa Fe Elevator Co., 331 U.S. 218, 230 (1947); Auto Workers v. Wis. Board, 336 U.S. 245, 253 (1949); United States v. Burnison, 339 U.S. 87, 91-92 (1950).

[16] Ohio v. Thomas, 173 U.S. 276, 283 (1899).

[17] Johnson v. Maryland, 254 U.S. 51 (1920).

[18] Arizona v. California, 283 U.S. 423, 451 (1931).

[19] 9 Wall. 353 (1870).

[20] Ibid. 362.

[21] 161 U.S. 275 (1896).

[22] Ibid. 283.

[23] Reagan v. Mercantile Trust Co., 154 U.S. 413 (1894).

[24] Johnson v. Maryland, 254 U.S. 51, 56 (1920).

[25] Penn Dairies v. Milk Control Comm'n., 318 U.S. 261 (1943).

[26] Pacific Coast Dairy v. Dept. of Agriculture, 318 U.S. 285 (1943).

[27] Martin v. Hunter's Lessee, 1 Wheat. 304, 335 (1816).

[28] 93 U.S. 130 (1876).

[29] Martin v. Hunter's Lessee, 1 Wheat. 304, 335 (1816).

[30] 93 U.S. 130, 137 (1876).

[31] Mondou v. New York, N.H. & H.R. Co., 223 U.S. 1, 57 (1912).

[32] 330 U.S. 386 (1947).

[33] Ibid. 393.

[34] Ableman v. Booth, 21 How. 506, 523 (1859), followed in United States v. Tarble, 13 Wall. 397 (1872).

[35] Tennessee v. Davis, 100 U.S. 257 (1880); see also Maryland v. Soper, 270 U.S. 36 (1926).

[36] 135 U.S. 1 (1890).

[37] Keith v. Clark, 97 U.S. 454, 461 (1878).

[38] White v. Cannon, 6 Wall. 443, 450 (1868). See also Hickman v. Jones, 9 Wall. 197 (1870); Dewing v. Perdicaries, 96 U.S. 193, 195 (1878).

[39] Ford v. Surget, 97 U.S. 594, 604 (1878); United States v. Keehler, 9 Wall. 83, 86 (1870).

[40] Texas v. White, 7 Wall. 700, 726 (1869).

[41] Ibid. 733. See also Horn v. Lockhart, 17 Wall. 570, 580 (1873); Thomas v. Richmond, 12 Wall. 349, 357 (1871); White v. Hart, 13 Wall. 646 (1872); United States v. Home Ins. Co., 22 Wall. 99 (1875); Taylor v. Thomas, 22 Wall. 479 (1875); and Huntington v. Texas, 16 Wall. 402 (1873).

[42] 9 Wheat. 788 (1924).

[43] Ibid. 865.

[44] Ibid.

[45] Ibid. 866.

[46] Ibid. 867.

[47] 2 Pet. 449 (1829), followed in New York ex rel. Bank of Commerce v. Comrs. of Taxes and Assessments, 2 Bl. 620 (1863).

[48] 12 Stat. 710 (1863).

[49] 31 U.S.C. Sec. 742 (1946).

[50] 7 Wall. 26 (1869).

[51] Hibernia Sav. & L. Soc. v. San Francisco, 200 U.S. 310, 315 (1906).

[52] Smith v. Davis, 323 U.S. 111 (1944).

[53] Plummer v. Coler, 178 U.S. 115 (1900); Blodgett v. Silberman, 277 U.S. 1, 12 (1928).

[54] Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136, 140 (1927).

[55] Miller v. Milwaukee, 272 U.S. 713 (1927).

[56] Provident Inst. for Savings v. Massachusetts, 6 Wall. 611 (1868); Society for Savings v. Coite, 6 Wall. 594 (1868); Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632 (1868); Home Ins. Co. v. New York, 134 U.S. 594 (1890).

[57] Macallen v. Massachusetts, 279 U.S. 620, 625 (1929).

[58] Northwestern Mutual L. Ins. Co. v. Wisconsin, 275 U.S. 136 (1927).

[59] 9 Wheat. 738 (1824).

[60] Ibid. 867.

[61] 302 U.S. 134 (1937).

[62] Alward v. Johnson, 282 U.S. 509 (1931).

[63] Trinityfarm Const. Co. v. Grosjean, 291 U.S. 466 (1934).

[64] Atkinson v. Tax Commission, 303 U.S. 20 (1938).

[65] Superior Bath House Co. v. McCarroll, 312 U.S. 176 (1941).

[66] Buckstaff Bath House v. McKinley, 308 U.S. 358 (1939).

[67] Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938).

[68] Alabama v. King & Boozer, 314 U.S. 1 (1941), overruling Panhandle Oil Co. v. Knox, 277 U.S. 218 (1928) and Graves v. Texas Co., 298 U.S. 393 (1936). See also Curry v. United States, 314 U.S. 14 (1941).

[69] Wilson v. Cook, 327 U.S. 474 (1946).

[70] 306 U.S. 466 (1939), followed in State Tax Comm'n. v. Van Cott, 306 U.S. 511 (1939). This case overruled by implication Dobbins v. Erie County, 16 Pet. 435 (1842) and New York ex rel. Rogers v. Graves, 299 U.S. 401 (1937), which held the income of federal employees to be immune from State taxation.

[71] 306 U.S. 466, 487 (1939).

[72] Ibid. 492.

[73] 4 Wheat. 316, 426 (1819).

[74] Thompson v. Union P.R. Co., 9 Wall. 579, 588 (1870); Railroad Co. v. Peniston, 18 Wall. 5, 31 (1873).

[75] Susquehanna Power Co. v. State Tax Comm'n., 283 U.S. 291 (1931).

[76] Baltimore Shipbuilding & Dry Dock Co. v. Baltimore, 195 U.S. 375 (1904).

[77] Northern P.R. Co. v. Myers, 172 U.S. 589 (1899); New Brunswick v. United States, 276 U.S. 547 (1928).

[78] Irwin v. Wright, 258 U.S. 219 (1922).

[79] United States v. Allegheny County, 322 U.S. 174 (1944).

[80] 117 U.S. 151 (1886).

[81] Lee v. Osceola & L. River Road Improv. Dist, 268 U.S. 643 (1925).

[82] Clallam County v. United States, 263 U.S. 341 (1923). See also Cleveland v. United States, 323 U.S. 329, 333 (1945).

[83] Mayo v. United States, 319 U.S. 441 (1943).

[84] Western U. Teleg. Co. v. Texas, 105 U.S. 460, 464 (1882).

[85] Des Moines Nat. Bank v. Fairweather, 263 U.S. 103, 106 (1923); Owensboro Nat. Bank v. Owensboro, 173 U.S. 664, 669 (1899); First Nat. Bank v. Adams, 258 U.S. 362 (1922).

[86] Baltimore Nat. Bank v. State Tax Comm'n., 297 U.S. 209 (1936).

[87] Maricopa County v. Valley National Bank, 318 U.S. 357, 362 (1943).

[88] 308 U.S. 21 (1939).

[89] 314 U.S. 95 (1941).

[90] Ibid. 101.

[91] Ibid. 102; cf. 9 Wheat. 738, 864-865 (1824).

[92] Colorado Nat. Bank v. Bedford, 310 U.S. 41 (1940).

[93] 342 U.S. 232 (1952).

[94] 60 Stat. 765; 42 U.S.C. Sec. 1809 (b).

[95] 342 U.S. 232, 234.

[96] Ibid. 236.

[97] Long v. Rockwood, 277 U.S. 142 (1928).

[98] 286 U.S. 123 (1932).

[99] Educational Films Corp. v. Ward, 282 U.S. 379 (1931).

[100] 235 U.S. 292 (1944).

[101] Indian Territory Illuminating Oil Co. v. Oklahoma, 240 U.S. 522 (1916).

[102] Howard v. Gipsy Oil Co., 247 U.S. 503 (1918); Large Oil Co. v. Howard, 248 U.S. 549 (1919).

[103] 257 U.S. 501 (1922).

[104] Oklahoma Tax Comm'n v. Barnsdall Refiners, 296 U.S. 521 (1936).

[105] 330 U.S. 342 (1949). Justice Rutledge, speaking for the Court, sketched the history of the immunity of lessees of Indian lands from State taxation, which he found to stem from early rulings that tribal lands are themselves immune (The Kansas Indians, 5 Wall. 737 (1867); The New York Indians, 5 Wall. 761 (1867)). One of the first steps taken to curtail the scope of the immunity was Shaw v. Gibson-Zahniser Oil Corp., 276 U.S. 575 (1928), which held that lands outside a reservation, though purchased with restricted Indian funds, were subject to State taxation. Congress soon upset the decision, however, and its act was sustained in Board of County Comm'rs v. Seber, 318 U.S. 705 (1943).

[106] McCulloch v. Maryland, 4 Wheat. 316, 416 (1819).

[107] Ex parte Garland, 4 Wall. 333, 337 (1867).

[108] Cummings v. Missouri, 4 Wall. 277, 323 (1867).

[109] The Federalist No. 27, p. 123; I Farrand Records, 404.

[110] See Article I, Section III, Paragraph 1; Section IV, Paragraph 1; Section X; Article II, Section I, Paragraph 2; Article III, Section II, Paragraph 2; Article IV, Sections I and II; Article V; Amendments XIII, XIV, XV, XVII, and XIX.

[111] 1 Stat. 73 (1789).

[112] 5 Stat. 322 (1839).

[113] 1 Stat. 302 (1793).

[114] 2 Stat. 404 (1806).

[115] See 2 Kent's Commentaries, 64-65 (1826); 34 Stat. 590, 602 (1906); 8 U.S.C. Sec. 357, 379; 18 ibid. Sec. 135 (1934); also Holmgren v. United States, 217 U.S. 509 (1910).

[116] For the development of opinion especially on the part of State courts, adverse to the validity of the above mentioned legislation, see 1 Kent's Commentaries, 396-404 (1826).

[117] 16 Pet. 539 (1842).

[118] 24 How. 66 (1861).

[119] 16 Pet. at 622.

[120] 24 How. at 107-108.

[121] 100 U.S. 371 (1880).

[122] Ibid. 392.

[123] Claflin v. Houseman, 93 U.S. 130, 136, 137 (1876); followed in Second Employers' Liability Cases, 223 U.S. 1, 55-59 (1912).

[124] 40 Stat. 76 (1917).

[125] Jane Perry Clark, The Rise of a New Federalism, 91 (Columbia University Press, 1938).

[126] See James Hart in 13 Virginia Law Review, 86-107 (1926) discussing President Coolidge's order of May 8, 1926, for Prohibition enforcement.

[127] Clark, New Federalism, cited in note 2 above; [Transcriber's Note: Reference is to Footnote 125, above.] Corwin, Court Over Constitution, 148-168 (Princeton University Press, 1938).

ARTICLE VII

RATIFICATION

Article VII

The Ratification of the Conventions of nine States, shall be sufficient for the Establishment of this Constitution between the States so ratifying the Same.

IN GENERAL

In Owings v. Speed,[1] the question at issue was whether the Constitution of the United States operated upon an act of Virginia passed in 1788. The Court held it did not, stating in part:

"The Conventions of nine States having adopted the Constitution, Congress, in September or October, 1788, passed a resolution in conformity with the opinions expressed by the Convention, and appointed the first Wednesday in March of the ensuing year as the day, and the then seat of Congress as the place, 'for commencing proceedings under the Constitution.'

"Both Governments could not be understood to exist at the same time. The new Government did not commence until the old Government expired. It is apparent that the Government did not commence on the Constitution being ratified by the ninth State; for these ratifications were to be reported to Congress, whose continuing existence was recognized by the Convention, and who were requested to continue to exercise their powers for the purpose of bringing the new Government into operation. In fact, Congress did continue to act as a Government until it dissolved on the 1st of November, by the successive disappearance of its Members. It existed potentially until the 2d of March, the day preceding that on which the Members of the new Congress were directed to assemble.

"The resolution of the Convention might originally have suggested a doubt, whether the Government could be in operation for every purpose before the choice of a President; but this doubt has been long solved, and were it otherwise, its discussion would be useless, since it is apparent that its operation did not commence before the first Wednesday in March 1789 * * *"

Notes

[1] 5 Wheat. 420, 422-423 (1820).

AMENDMENTS TO THE CONSTITUTION

AMENDMENTS NOS. 1-10

Bill of Rights

Page History 749 Ordinance of 1787 749 Formulation and adoption of the bill of rights 750 Bill of rights and the States: Barron v. Baltimore 750 Bill of rights and Amendment XIV 750

AMENDMENTS TO THE CONSTITUTION

AMENDMENTS NOS. 1-10

Bill of Rights

HISTORY: THE ORDINANCE OF 1787

While the Constitutional Convention was engaged in drafting the Constitution, the Congress of the Confederation included in the Ordinance for the government of the Northwest Territory, adopted July 13, 1787, the following provisions:

"It is hereby ordained and declared by the authority aforesaid, that the following articles shall be considered as articles of compact between the original States and the people and States in the said territory and forever remain unalterable, unless by common consent, to wit:

"Art. 1. No person, demeaning himself in a peaceable and orderly manner, shall ever be molested on account of his mode of worship or religious sentiments, in the said territory.

"Art. 2. The inhabitants of the said territory shall always be entitled to the benefits of the writ of habeas corpus, and of the trial by jury; of a proportionate representation of the people in the legislature; and of judicial proceedings according to the course of the common law. All persons shall be bailable, unless for capital offenses, where the proof shall be evident or the presumption great. All fines shall be moderate; and no cruel or unusual punishments shall be inflicted. No man shall be deprived of his liberty or property, but by the judgment of his peers or the law of the land; and, should the public exigencies make it necessary, for the common preservation, to take any person's property, or to demand his particular services, full compensation shall be made for the same. And, in the just preservation of rights and property, it is understood and declared, that no law ought ever to be made, or have force in the said territory, that shall, in any manner whatever, interfere with or affect private contracts or engagements, bona fide, and without fraud, previously formed.

"Art. 3. Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.

* * * * *

"Art. 6. There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in the punishment of crimes whereof the party shall have been duly convicted: * * *"[1]

FORMULATION AND ADOPTION OF THE BILL OF RIGHTS

Two months later, at the very end of its labors, the Constitutional Convention rejected, with scant consideration, a proposal by Gerry and Mason, to prepare a bill of rights.[2] This omission furnished the principal argument urged against ratification of the Constitution. Hamilton replied with the following ingenious argument: "* * * bills of rights are in their origin, stipulations between kings and their subjects, abridgments of prerogative in favor of privilege, reservations of rights not surrendered to the prince. * * * It is evident, therefore, that according to their primitive signification, they have no application to the constitutions professedly founded upon the power of the people, and executed by their immediate representatives and servants. Here, in strictness, the people surrender nothing; and as they retain everything, they have no need of particular reservations."[3]

The people did not find this line of reasoning persuasive. Several States ratified only after Washington put forward the suggestion that the desired guarantees could be added by amendment.[4] No less than 124 amendments were proposed by the States.[5] Shortly after the First Congress convened, Madison introduced a series of amendments,[6] designed "to quiet the apprehension of many, that without some such declaration of rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and property which by the Declaration of Independence were affirmed to be unalienable * * *"[7] After prolonged debate seventeen proposals were accepted by the House two of which were rejected by the Senate. The remainder were reduced to twelve in number, all but two of which were ratified by the requisite number of States.[8]

THE BILL OF RIGHTS AND THE STATES: BARRON v. BALTIMORE

One of the amendments which the Senate refused to accept--the one which Madison declared to be "the most valuable of the whole list"[9]--read as follows: "The equal rights of conscience, the freedom of speech or of the press, and the right of trial by jury in criminal cases, shall not be infringed by any State."[10] The demand for assurance of these rights against encroachment by the States would not die. In spite of the deliberate rejection of Madison's proposal the contention that the first Ten Amendments were applicable to the States was repeatedly pressed upon the Supreme Court. By a long series of decisions, beginning with the opinion of Chief Justice Marshall in Barron v. Baltimore[11] in 1833, the argument was consistently rejected. Nevertheless the enduring vitality of natural law concepts encouraged renewed appeals for judicial protection. Expression such as the statement of Justice Miller in Citizens Savings and Loan Association v. Topeka that: "It must be conceded that there are * * * rights in every free government beyond the control of the States"[12] probably account for the fact, reported by Charles Warren that: "In at least twenty cases between 1877 and 1907, the Court was required to rule upon this point and to reaffirm Marshall's decision of 1833, * * *"[13]

THE BILL OF RIGHTS AND AMENDMENT XIV

After the adoption of the Fourteenth Amendment, a fresh attack was launched on that front. The rights assured against encroachment by the Federal Government were claimed as privileges and immunities which no State may deny to any citizen.[14] As early as 1884 the further contention was made that the procedural safeguards prescribed by these articles are essential ingredients of due process of law.[15] For many years, the Court continued to reject these arguments also, over the vigorous and prophetic dissents of Justice Harlan. With respect to the due process clause it held that these words have the same meaning in the Fourteenth Amendment as in the Fifth, and hence do not embrace the other rights more specifically enumerated in the latter, there being no superfluous language in the Constitution.[16] In 1897, however, it retreated from this position to the extent of holding that the Fifth Amendment's explicit guarantee against the taking of private property without just compensation is included in the due process clause of the Fourteenth.[17] Later cases have established that the terms, "liberty" and "due process of law" as used in Amendment XIV, render available against the States certain fundamental rights guaranteed accused persons in the Bill of Rights[18] and the substantive rights which are protected against Congress by Amendment I.[19]

Notes

[1] 1 Stat. 51 n.

[2] Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, V, 538 (1836).

[3] The Federalist No. 84.

[4] McLaughlin, A Constitutional History of the United States, 203 (1936).

[5] Ames, The Proposed Amendments to the Constitution, 19 (1896).

[6] Annals of Congress, I, 424, 433.

[7] Monongahela Navigation Co. v. United States, 148 U.S. 312, 324 (1893).

[8] Ames, op. cit., 184, 185 (1896).

[9] Annals of Congress, 1, 755.

[10] Ibid.

[11] 7 Pet. 243 (1833); Lessee of Livingston v. Moore, 7 Pet. 469 (1833); Permoli v. New Orleans, 3 How. 589, 609 (1845); Fox v. Ohio, 5 How. 410 (1847); Smith v. Maryland, 18 How. 71 (1855); Withers v. Buckley, 20 How. 84 (1858); Pervear v. Massachusetts, 5 Wall. 475 (1867); Twitchell v. Pennsylvania, 7 Wall. 321 (1869).

[12] 20 Wall. 655, 669 (1875).

[13] Warren, The New "Liberty" Under the Fourteenth Amendment, 39 Harv. L. Rev., 431, 436 (1926).

[14] Slaughter-House Cases, 16 Wall. 36 (1873); Spies v. Illinois, 123 U.S. 131 (1887); O'Neil v. Vermont, 144 U.S. 323 (1892); Maxwell v. Dow, 176 U.S. 581 (1900); Patterson v. Colorado, 205 U.S. 454 (1907); Twining v. New Jersey, 211 U.S. 78 (1908).

[15] Hurtado v. California, 110 U.S. 516 (1884).

[16] Ibid. 534, 535.

[17] Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226 (1897).

[18] See Twining v. New Jersey, 211 U.S. 78 (1908); Adamson v. California, 332 U.S. 46 (1947).

[19] See Gitlow v. New York, 268 U.S. 652 (1925); Beauharnais v. Illinois, 343 U.S. 250, 288 (1952).

AMENDMENT 1

RELIGION, FREE SPEECH, ETC.

Page Absorption of Amendment I into the Fourteenth Amendment 757 "An establishment of religion" 758 "No preference" doctrine 758 "Wall of separation" doctrine 759 Zorach Case 762 Permissible monetary aids to religion 763 Free exercise of religion; dimensions 764 Parochial schools 765 Free exercise of religion; federal restraints 765 Free exercise of religion; State and local restraints 766 Free exercise of religion; obligations of citizenship 768 Freedom of speech and press 769 Blackstonian background 769 Effect of Amendment I on the common law 769 Amendment XIV and Blackstone 771 Clear and present danger rule, meaning 772 Contrasting operation of the common law rule 772 Emergence of the clear and present test 773 Gitlow and Whitney Cases 775 Acceptance of the clear and present danger test 777 Police power and clear and present danger 777 Public order 777 Public morals 779 Picketing and clear and present danger 781 Contempt of court and clear and present danger 783 Freedom of speech and press in public parks and streets 784 Censorship 786 Clear and present danger test: judicial diversities 788 Taxation 792 Federal restraints on freedom of speech and press 792 Regulations of Business and Labor Activities 792 Regulation of political activities of federal employees 793 Legislative protection of the armed forces and the war power 794 Loyalty regulations: The Douds Case 794 The Case of the Eleven Communists 795 Subversive organizations 801 Recent state legislation 801 Loyalty tests 801 Group libel 802 Censorship of the mails 804 Rights of assembly and petition 805 Restraints on the right of petition 806 The Cruikshank Case 807 Hague v. C.I.O. 808 Recent cases 809 Lobbying and the right of petition 810

RELIGION, FREE SPEECH, ETC.

Amendment 1

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Absorption of Amendment I Into the Fourteenth Amendment

Eventually the long sought protection for certain substantive personal rights was obtained by identifying them with the "liberty" which States cannot take away without due process of law. The shift in the Court's point of view was made known quite casually in Gitlow v. New York,[1] where, although affirming a conviction for violation of a State statute prohibiting the advocacy of criminal anarchy, it declared that: "For present purposes we may and do assume that freedom of speech and of the press--which are protected by the First Amendment from abridgment by Congress--are among the fundamental personal rights and 'liberties' protected by the due process clause of the Fourteenth Amendment from impairment by the States."[2] This dictum became, two years later, accepted doctrine when the Court invalidated a State law on the ground that it abridged freedom of speech contrary to the due process clause of Amendment XIV.[3] Subsequent decisions have brought the other rights safeguarded by the First Amendment, freedom of religion,[4] freedom of the press,[5] and the right of peaceable assembly,[6] within the protection of the Fourteenth. In consequence of this development the cases dealing with the safeguarding of these rights against infringement by the States are included in the ensuing discussion of the First Amendment.

An Establishment of Religion

THE "NO PREFERENCE" DOCTRINE

The original proposal leading to the First Amendment was introduced into the House of Representatives by James Madison, and read as follows: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."[7] This was altered in the House to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."[8] In the Senate the above formula was replaced by the following; "Congress shall make no law establishing articles of religion."[9] The conference committee of the two houses adopted the House proposal, but with the neutral term "respecting an establishment," etc., taking the place of the original sweeping ban against any law "establishing religion."[10] Explaining this phraseology, in his Commentaries, Story asserted that the purpose of the amendment was not to discredit the then existing State establishments of religion, but rather "to exclude from the National Government all power to act on the subject." He wrote: "The situation, * * *, of the different States equally proclaimed the policy as well as the necessity of such an exclusion. In some of the States, episcopalians constituted the predominant sect; in others, presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendency, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the State governments, to be acted upon according to their own sense of justice and the State constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils without any inquisition into their faith or mode of worship."[11]

For the rest, Story contended, the no establishment clause, while it inhibited Congress from giving preference to any denomination of the Christian faith, was not intended to withdraw the Christian religion as a whole from the protection of Congress. He said: "Probably at the time of the adoption of the Constitution, and of the amendment to it now under consideration, the general if not the universal sentiment in America was, that Christianity ought to receive encouragement from the state so far as was not incompatible with the private rights of conscience and the freedom of religious worship. An attempt to level all religions, and to make it a matter of state policy to hold all in utter indifference, would have created universal disapprobation, if not universal indignation."[12] As late as 1898 Cooley expounded the no establishment clause as follows: "By establishment of religion is meant the setting up or recognition of a state church, or at least the conferring upon one church of special favors and advantages which are denied to others (citing 1 Tuck. Bl. Com. App. 296; 2 id., App. Note G.). It was never intended by the Constitution that the government should be prohibited from recognizing religion, * * * where it might be done without drawing any invidious distinctions between different religious beliefs, organizations, or sects."[13]

THE "WALL OF SEPARATION" DOCTRINE

In 1802 President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut in which he declared that it was the purpose of the First Amendment to build "a wall of separation between Church and State,"[14] and in Reynolds v. United States,[15] the first Anti-Mormon Case, Chief Justice Waite, speaking for the unanimous Court, characterized this as "almost an authoritative declaration of the scope and effect of the amendment," one which left Congress "free to reach actions which were in violation of social duties or subversive of good order."[16] Recently the Court has given Jefferson's "almost authoritative" pronouncement a greatly enlarged application. Speaking by Justice Black, a sharply divided Court sustained in 1947 the right of local authorities in New Jersey to provide free transportation for children attending parochial schools,[17] but accompanied its holding with these warning words, which appear to have had the approval of most of the Justices: "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations of groups and vice versa."[18] And a year later a nearly unanimous Court overturned on the above grounds a "released time" arrangement under which the Champaign, Illinois Board of Education agreed that religious instruction should be given in the local schools to pupils whose parents signed "request cards." The classes were to be conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance records were kept and reported to the school authorities in the same way as for other classes; and pupils not attending the religious-instruction classes were required to continue their regular secular studies.[19] Said Justice Black, speaking for the Court: "Here not only are the State's tax-supported public school buildings used for the dissemination of religious doctrines. The State also affords sectarian groups an invaluable aid in that it helps to provide pupils for their religious classes through use of the State's compulsory public school machinery. This is not separation of Church and State."[20]

Justice Frankfurter presented a concurring opinion for himself and Justices Jackson, Rutledge and Burton. "We are all agreed," it begins, "that the First and Fourteenth Amendments have a secular reach far more penetrating in the conduct of Government than merely to forbid an 'established church.'"[21] What ensues is a well documented account of the elimination of sectarianism from the American school system which is reinterpreted as a fight for the secularization of public supported education.[22] Facing then the emergence of the "released time" expedient,[23] Justice Frankfurter characterizes it as a "conscientious attempt to accommodate the allowable functions of Government and the special concerns of the Church within the framework of our Constitution."[24] Elsewhere in his opinion he states: "Of course, 'released time' as a generalized conception, undefined by differentiating particularities, is not an issue for Constitutional adjudication. * * * The substantial differences among arrangements lumped together as 'released time' emphasize the importance of detailed analysis of the facts to which the Constitutional test of Separation is to be applied. How does 'released time' operate in Champaign?"[25] And again: "We do not consider, as indeed we could not, school programs not before us which, though colloquially characterized as 'released time,' present situations differing in aspects that may well be constitutionally crucial. Different forms which 'released time' has taken during more than thirty years of growth include programs which, like that before us, could not withstand the test of the Constitution; others may be found unexceptionable."[26] Justice Jackson added further reservations of his own as follows: "We should place some bounds on the demands for interference with local schools that we are empowered or willing to entertain. * * * It is important that we circumscribe our decision with some care."[27]

In a dissenting opinion Justice Reed took exception to the extended meaning given to the words "an establishment of religion." "The phrase 'an establishment of religion,'" said he, "may have been intended by Congress to be aimed only at a state church. When the First Amendment was pending in Congress in substantially its present form, 'Mr. Madison said, he apprehended the meaning of the words to be, that Congress should not establish a religion, and enforce the legal observation of it by law, nor compel men to worship God in any manner contrary to their conscience.' Passing years, however, have brought about the acceptance of a broader meaning, although never until today, I believe, has this Court widened its interpretation to any such degree as holding that recognition of the interest of our nation in religion, through the granting, to qualified representatives of the principal faiths, of opportunity to present religion as an optional, extracurricular subject during released school time in public school buildings, was equivalent to an establishment of religion."[28] He further pointed out that "the Congress of the United States has a chaplain for each House who daily invokes divine blessings and guidance for the proceedings. The armed forces have commissioned chaplains from early days. They conduct the public services in accordance with the liturgical requirements of their respective faiths, ashore and afloat, employing for the purpose property belonging to the United States and dedicated to the services of religion. Under the Servicemen's Readjustment Act of 1944, eligible veterans may receive training at government expense for the ministry in denominational schools. The schools of the District of Columbia have opening exercises which 'include a reading from the Bible without note or comment, and the Lord's Prayer.'"[29]

THE ZORACH CASE; THE McCOLLUM CASE LIMITED

In a decision handed down July 11, 1951 the New York Court of Appeals, one Judge dissenting, sustained the "released time" program of that State, distinguishing it from the one condemned in the McCollum Case as follows: "In the New York City program there is neither supervision nor approval of religious teachers and no solicitation of pupils or distribution of cards. The religious instruction must be outside the school building and grounds. There must be no announcement of any kind in the public schools relative to the program and no comment by any principal or teacher on the attendance or non-attendance of any pupil upon religious instruction. All that the school does besides excusing the pupil is to keep a record--which is not available for any other purpose--in order to see that the excuses are not taken advantage of and the school deceived, which is, of course, the same procedure the school would take in respect of absence for any other reason."[30] On appeal this decision was sustained by the Supreme Court, six Justices to three.[31] Said Justice Douglas, speaking for the majority: "We are a religious people whose institutions presuppose a Supreme Being. We guarantee the freedom to worship as one chooses. We make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary. We sponsor an attitude on the part of government that shows no partiality to any one group and that lets each flourish according to the zeal of its adherents and the appeal of its dogma. When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe. Government may not finance religious groups nor undertake religious instruction nor blend secular and sectarian education nor use secular institutions to force one or some religion on any person. But we find no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence. The government must be neutral when it comes to competition between sects. It may not thrust any sect on any person. It may not make a religious observance compulsory. It may not coerce anyone to attend church, to observe a religious holiday, or to take religious instruction. But it can close its doors or suspend its operations as to those who want to repair to their religious sanctuary for worship or instruction. No more than that is undertaken here."[32]

A few weeks earlier, moreover, the Court had indicated an intention to scrutinize more closely the basis of its jurisdiction in this class of cases. This occurred in a case in which the question involved was the validity of a New Jersey statute which requires the reading at the opening of each public school day of five verses of the Old Testament.[33] The Court held that appellant's interest as taxpayers was insufficient to constitute a justiciable case or controversy, while as to the alleged rights of the child involved the case had become moot with her graduation from school.[34]

PERMISSIBLE MONETARY AIDS TO RELIGION

In 1899 the Court held that an agreement between the District of Columbia and the directors of a hospital chartered by Congress for erection of a building and treatment of poor patients at the expense of the District was valid despite the fact that the members of the Corporation belonged to a monastic order or sisterhood of a particular church.[35] It has also sustained a contract made at the request of Indians to whom money was due as a matter of right, under a treaty, for the payment of such money by the Commissioner of Indian Affairs for the support of Indian Catholic schools.[36] In 1930 the use of public funds to furnish nonsectarian textbooks to pupils in parochial schools of Louisiana was sustained,[37] and in 1947, as we have seen, the case of public funds for the transportation of pupils attending such schools in New Jersey.[38] In the former of these cases the Court cited the State's interest in secular education even when conducted in religious schools; in the latter its concern for the safety of school children on the highways; and the National School Lunch Act,[39] which aids all school children attending tax-exempt schools can be similarly justified. The most notable financial concession to religion, however, is not to be explained in this way, the universal practice of exempting religious property from taxation. This unquestionably traces back to the idea expressed in the Northwest Ordnance that Government has an interest in religion as such.

FREE EXERCISE OF RELIGION: DIMENSIONS

The First Amendment "was intended to allow every one under the jurisdiction of the United States to entertain such notions respecting his relations to his Maker and the duties they impose as may be approved by his judgment and conscience, and to exhibit his sentiments in such form of worship as he may think proper, not injurious to the equal rights of others, and to prohibit legislation for the support of any religious tenets, or the modes of worship of any sect. The oppressive measures adopted, and the cruelties and punishments inflicted, by the governments of Europe for many ages, to compel parties to conform, in their religious beliefs and modes of worship, to the views of the most numerous sect, and the folly of attempting in that way to control the mental operations of persons, and enforce an outward conformity to a prescribed standard, led to the adoption of (this) amendment."[40] "The constitutional inhibition of legislation on the subject of religion has a double aspect. On the one hand, it forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship. Freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law. On the other hand, it safeguards the free exercise of the chosen form of religion. Thus the Amendment embraces two concepts,--freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be."[41]

PAROCHIAL SCHOOLS

The Society of Sisters, an Oregon corporation, was empowered by its charter to care for orphans and to establish and maintain schools and academies for the education of the youth. Systematic instruction and moral training according to the tenets of the Roman Catholic Church was given in its establishments along with education in the secular branches. By an Oregon statute, effective September 1, 1926, it was required that every parent, or other person having control or charge or custody of a child between eight and sixteen years send him "to a public school for the period of time a public school shall be held during the current year" in the district where the child resides; and failure so to do was declared a misdemeanor. The District Court of The United States for Oregon enjoined the enforcement of the statute and the Supreme Court unanimously sustained its action,[42] holding that the measure unreasonably interfered with the liberty of parents and guardians to direct the upbringing and education of children under their control--a liberty protected by the Fourteenth Amendment. While the First Amendment was not mentioned in the Court's opinion, the subsequent absorption of its religious clauses into the Fourteenth Amendment seems to make the case relevant to the question of their proper interpretation.

FREE EXERCISE OF RELIGION: FEDERAL RESTRAINTS

Religious belief cannot be pleaded as a justification for an overt act made criminal by the law of the land. "Laws are made for the government of action, and while they cannot interfere with mere religious belief and opinions, they may with practices."[43] To permit a man to excuse conduct in violation of law on the ground of religious belief "would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."[44] It does not follow that "because no mode of worship can be established or religious tenets enforced in this country, therefore any tenets, however destructive of society, may be held and advocated, if asserted, to be a part of the religious doctrine of those advocating and practicing them * * * Whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so-called can be tolerated. Crime is not the less odious because sanctioned by what any particular sect may designate as religion."[45] Accordingly acts of Congress directed against either the practice of the advocacy of polygamy by members of a religious sect which sanctioned the practice, were held valid.[46] But when, in the Ballard Case,[47] decided in 1944, the promoters of a religious sect, whose founder had at different times identified himself as Saint Germain, Jesus, George Washington, and Godfre Ray King, were convicted of using the mails to defraud by obtaining money on the strength of having supernaturally healed hundreds of persons, they found the Court in a softened frame of mind. Although the trial judge, carefully discriminating between the question of the truth of defendants' pretensions and that of their good faith in advancing them, had charged the jury that it could pass on the latter but not the former, this caution did not avail with the Court, which contrived on another ground ultimately to upset the verdict of "guilty." The late Chief Justice Stone, speaking for himself and Justices Roberts and Frankfurter, dissented: "I cannot say that freedom of thought and worship includes freedom to procure money by making knowingly false statements about one's religious experiences."[48]

FREE EXERCISE OF RELIGION: STATE AND LOCAL RESTRAINTS

The Mormon Church cases were decided prior to the emergence of the clear and present danger doctrine dealt with below. In its consideration of cases stemming from State and local legislation the Court has endeavored at times to take account of this doctrine, with the result that its decisions have followed a somewhat erratic course. The leading case is Cantwell v. Connecticut.[49] Here three members of the sect calling itself Jehovah's Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds on the representation that they were for religious or charitable purposes, and also on a general charge of breach of the peace by accosting in a strongly Catholic neighborhood two communicants of that faith and playing to them a phonograph record which grossly insulted the Christian religion in general and the Catholic church in particular. Both convictions were held to violate the constitutional guarantees of speech and religion, the clear and present danger rule being invoked in partial justification of the holding, although it is reasonably inferable from the Court's own recital of the facts that the listeners to the phonograph record exhibited a degree of self-restraint rather unusual under the circumstances. Two weeks later the Court, as if to "compensate" for its zeal in the Cantwell Case, went to the other extreme, and urging the maxim that legislative acts must be presumed to be constitutional, sustained the State of Pennsylvania in excluding from its schools children of the Jehovah's Witnesses, who in the name of their beliefs refused to salute the flag.[50] The subsequent record of the Court's holdings in this field is somewhat variable. A decision in June, 1942, sustaining the application to vendors of religious books and pamphlets of a nondiscriminatory license fee[51] was eleven months later vacated and formally reversed;[52] shortly thereafter a like fate overtook the decision in the "Flag Salute" Case.[53] In May, 1943, the Court found that an ordinance of the city of Struthers, Ohio, which made it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature, was violative of the Constitution when applied to distributors of leaflets advertising a religious meeting.[54] But eight months later it sustained the application of Massachusetts' child labor laws in the case of a nine year old girl who was permitted by her legal custodian to engage in "preaching work" and the sale of religious publications after hours.[55] However, in Saia v. New York[56] decided in 1948, the Court held, by a vote of five Justices to four, that an ordinance of the city of Lockport, New York, which forbade the use of sound amplification devices except with the permission of the Chief of Police was unconstitutional as applied in the case of a Jehovah's Witness who used sound equipment to amplify lectures in a public park on Sunday, on religious subjects. But a few months later the same Court, again dividing five-to-four, sustained a Trenton, New Jersey ordinance which banned from that city's streets all loud speakers and other devices which emit "loud and raucous noises."[57] The latest state of the doctrine on this particular topic is represented by three cases, all decided the same day. In one the conviction of a Baptist minister for conducting religious services in the streets of New York City without first obtaining a permit from the city police commissioner was overturned,[58] a permit having been refused him on the ground that he had in the past ridiculed other religious beliefs thereby stirring strife and threatening violence. Justice Jackson dissented, quoting Mr. Bertrand Russell to prove that "too little liberty brings stagnation, and too much brings chaos. The fever of our times," he suggested, "inclines the Court today to favor chaos."[59] In the second, the Court upset the conviction of a group of Jehovah's Witnesses in Maryland for using a public park without first obtaining a permit.[60] The third case,[61] which had nothing to do with religion, affords an interesting foil to the other two. It is dealt with in another connection.[62]

FREE EXERCISE OF RELIGION: OBLIGATIONS OF CITIZENSHIP

In 1918 the Court rejected as too unsound to require more than a mere statement the argument that the Selective Service Act was repugnant to the First Amendment as establishing or interfering with religion, by reason of the exemptions granted ministers of religion, theological students and members of sects whose tenets exclude the moral right to engage in war.[63] The opposite aspect of this problem was presented in Hamilton v. Regents.[64] There a California statute requiring all male students at the State university to take a course in military science and tactics was assailed by students who claimed that military training was contrary to the precepts of their religion. This act did not require military service, nor did it peremptorily command submission to military training. The obligation to take such training was imposed only as a condition of attendance at the university. In these circumstances, all members of the Court concurred in the judgment sustaining the statute. No such unanimity of opinion prevailed in In re Summers,[65] where the Court upheld the action of a State Supreme Court in denying a license to practice law to an applicant who entertained conscientious scruples against participation in war. The license was withheld on the premise that a conscientious belief in nonviolence to the extent that the believer would not use force to prevent wrong, no matter how aggravated, made it impossible for him to swear in good faith to support the State Constitution. The Supreme Court held that the State's insistence that an officer charged with the administration of justice take such an oath and its interpretation of that oath to require a willingness to perform military service, did not abridge religious freedom. In a dissenting opinion in which Justices Douglas, Murphy and Rutledge concurred, Justice Black said, "I cannot agree that a State can lawfully bar from a semipublic position a well-qualified man of good character solely because he entertains a religious belief which might prompt him at some time in the future to violate a law which has not yet been and may never be enacted."[66]

Freedom of Speech and Press

THE BLACKSTONIAN BACKGROUND

"The liberty of the press," says Blackstone, "is indeed essential to the nature of a free state: but this consists in laying no previous restraints upon publications, and not in freedom from censure from criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish (as the law does at present) any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry: liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."[67]

EFFECT OF AMENDMENT I ON THE COMMON LAW

Blackstone was declaring the Common Law of his day, and it was no intention of the framers of Amendment I to change that law. "The historic antecedents of the First Amendment preclude the notion that its purpose was to give unqualified immunity to every expression that touched on matters within the range of political interest. The Massachusetts Constitution of 1780 guaranteed free speech; yet there are records of at least three convictions for political libels obtained between 1799 and 1803. The Pennsylvania Constitution of 1790 and the Delaware Constitution of 1792 expressly imposed liability for abuse of the right of free speech. Madison's own State put on its books in 1792 a statute confining the abusive exercise of the right of utterance. And it deserves to be noted that in writing to John Adams' wife, Jefferson did not rest his condemnation of the Sedition Act of 1798 on his belief in unrestrained utterance as to political matter. The First Amendment, he argued, reflected a limitation upon Federal power, leaving the right to enforce restrictions on speech to the States.[68] * * * 'The law is perfectly well settled,' this Court said over fifty years ago, 'that the first ten amendments to the Constitution, commonly known as the Bill of Rights, were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had from time immemorial been subject to certain well-recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed.'[69] That this represents the authentic view of the Bill of Rights and the spirit in which it must be construed has been recognized again and again in cases that have come here within the last fifty years."[70]

AMENDMENT XIV AND BLACKSTONE

Nor was the adoption of Amendment XIV thought to alter the above described situation until a comparatively recent date. Said Justice Holmes, speaking for the Court in 1907: "We leave undecided the question whether there is to be found in the Fourteenth Amendment a prohibition similar to that in the First. But even if we were to assume that freedom of speech and freedom of the press were protected from abridgment on the part not only of the United States but also of the States, still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare. Commonwealth v. Blanding, 3 Pick. 304, 313, 314; Respublica v. Oswald, 1 Dallas 319, 325. The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all. Commonwealth v. Blanding, ubi sup.; 4 Bl. Comm. 150."[71] This appears to be an unqualified endorsement of Blackstone. But, as Justice Holmes remarks in the same opinion, "There is no constitutional right to have all general propositions of law once adopted remain unchanged."[72] As late as 1922 Justice Pitney, speaking for the Court, said: "Neither the Fourteenth Amendment nor any other provision of the Constitution of the United States imposes upon the States any restriction about 'freedom of speech' or the 'liberty of silence' * * *"[73]

THE CLEAR AND PRESENT DANGER RULE, MEANING

The rule requires that before an utterance can be penalized by government it must, ordinarily, have occurred "in such circumstances or have been of such a nature as to create a clear and present danger" that it would bring about "substantive evils" within the power of government to prevent.[74] The question whether these conditions exist is one of law for the courts, and ultimately for the Supreme Court, in enforcement of the First and/or the Fourteenth Amendment;[75] and in exercise of its power of review in these premises the Court is entitled to review broadly findings of facts of lower courts, whether State or federal.[76]

CONTRASTING OPERATION OF THE COMMON LAW RULE

In Davis v. Beason,[77] decided in 1890, the question at issue was the constitutionality of a statute of the Territory of Idaho, providing that "no person who is a bigamist or polygamist, or who teaches, advices, counsels or encourages any person or persons to become bigamists or polygamists or to commit any other crime defined by law, or to enter into what is known as plural or celestial marriage, or who is a member of any order, organization or association which teaches, advises, counsels or encourages its members or devotees or any other persons to commit the crime of bigamy or polygamy, or any other crime defined by law, either as a rite or ceremony of such order, organization or association, or otherwise, is permitted to vote at any election, or to hold any position or office of honor, trust or profit within this Territory." A unanimous court held this enactment to be within the legislative powers which Congress had conferred on the Territory and not to be open to any constitutional objection. Said Justice Field for the Court: "Bigamy and polygamy are crimes by the laws of all civilized and Christian countries. They are crimes by the laws of the United States, and they are crimes by the laws of Idaho. They tend to destroy the purity of the marriage relation, to disturb the peace of families, to degrade woman and to debase man. Few crimes are more pernicious to the best interests of society and receive more general or more deserved punishment. To extend exemption from punishment for such crimes would be to shock the moral judgment of the community. To call their advocacy a tenet of religion is to offend the common sense of mankind. If they are crimes, then to teach, advise, and counsel their practice is to aid in their commission, and such teaching and counselling are themselves criminal and proper subjects of punishment, as aiding and abetting crime are in all other cases."[78] No talk here about the necessity for showing that the prohibited teaching, counselling, advising, etc., must be shown to have occurred in circumstances creating a clear and present danger of its being followed.

In Fox v. Washington,[79] decided in 1915, the question at issue was the constitutionality of a Washington statute denouncing "the wilful printing, circulation, etc., of matter advocating or encouraging the commission of any crime or breach of the peace or which shall tend to encourage or advocate disrespect for law or any court or courts of justice." The State Supreme Court had assumed that the case was governed by the guarantees of the United States Constitution of freedom of speech, and especially by the Fourteenth Amendment, and its decision sustaining the statute was upheld by the Supreme Court on the same assumption, in the case of a person indicted for publishing an article encouraging and inciting what the jury had found to be a breach of State laws against indecent exposure. Again, one notes the total absence of any reference to the clear and present danger rule. But not all State enactments survived judicial review prior to the adoption of the clear and present danger test. In 1927 the Court disallowed a Kansas statute which, as interpreted by the highest State court, made punishable the joining of an organization teaching the inevitability of "the class struggle";[80] three years later it upset a California statute which forbade in all circumstances the carrying of a red flag as a symbol of opposition to government;[81] and 6 years after that it upset a conviction under an Oregon statute for participating in a meeting held under the auspices of an organization which was charged with advocating violence as a political method, although the meeting itself was orderly and did not advocate violence.[82] In none of these cases was the clear and present danger test mentioned.

EMERGENCE OF THE CLEAR AND PRESENT TEST

In Schenck v. United States[83] appellants had been convicted of conspiracy to violate the Espionage Act of June 15, 1917[84] "by causing and attempting to cause insubordination, etc., in the military and naval forces of the United States, and to obstruct the recruiting and enlistment service of the United States, when the United States was at war with the German Empire, to-wit, that the defendants willfully conspired to have printed and circulated to men who had been called and accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be calculated to cause such insubordination and obstruction." Affirming the conviction, the Court, speaking by Justice Holmes said: "It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints, although to prevent them may have been the main purpose, as intimated in Patterson v. Colorado.[85] * * * We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. * * * The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. It does not even protect a man from an injunction against uttering words that have all the effect of force. * * * The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."[86] One week later two other convictions under the same act were affirmed, with Justice Holmes again speaking for the unanimous Court. In Frohwerk v. United States[87] he said: "With regard to the argument [on the constitutional question] we think it necessary to add to what has been said in Schenck v. United States, * * *, only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."[88] In Debs v. United States[89] he referred to "the natural and intended effect" and "probable effect"[90] of the condemned speech (straight common law). When, moreover, a case arose in which the dictum in the Schenck case might have influenced the result, the Court, seven Justices to two, declined to follow it. This was in Abrams v. United States,[91] in which the Court affirmed a conviction for spreading propaganda "obviously intended to provoke and to encourage resistance to the United States in the war." Justices Holmes and Brandeis dissented on the ground that the utterances did not create a clear and imminent danger[92] of substantive evils. And the same result was reached in Schaefer v. United States,[93] again over the dissent of Justices Holmes and Brandeis, the Court saying that: "The tendency of the articles and their efficacy were enough for the offense * * *."[94]

THE GITLOW AND WHITNEY CASES

Gitlow was convicted under a New York statute making it criminal to advocate, advise or teach the duty, necessity or propriety of overturning organized government by force or violence.[95] Since there was no evidence as to the effect resulting from the circulation of the manifesto for which he was convicted and no contention that it created any immediate threat to the security of the State, the Court was obliged to reach a clear cut choice between the common law test of dangerous tendency and the clear and present danger test. It adopted the former and sustained the conviction, saying "By enacting the present statute the state has determined, through its legislative body, that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil, that they may be penalized in the exercise of its police power. That determination must be given great weight * * * That utterances inciting to the overthrow of organized government by unlawful means present a sufficient danger of substantive evil to bring their punishment within the range of legislative discretion is clear. Such utterances, by their very nature, involve danger to the public peace and to the security of the state. They threaten breaches of the peace and ultimate revolution. And the immediate danger is none the less and substantial because the effect of a given utterance cannot be accurately foreseen. The state cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale."[96] Justice Sanford distinguished the Schenck Case by asserting that its "general statement" was intended to apply only to cases where the statute "merely prohibits certain acts involving the danger of substantive evil without any reference to language itself,"[97] and has no application "where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character."[98]

Two years later, in Whitney v. California,[99] upon evidence which tended to establish the existence of a conspiracy to commit certain serious crimes, the conviction was sustained unanimously. In a concurring opinion in which Justice Holmes joined, Justice Brandeis restated the test of clear and present danger to include the intent to create such danger: "But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the state from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled. See Schenck v. United States, 249 U.S. 47, 52. * * *, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[100]

ACCEPTANCE OF THE CLEAR AND PRESENT DANGER TEST

Ten years later, in Herndon v. Lowry,[101] a narrowly divided Court drew a distinction between the prohibition by law of specific utterances which the legislators have determined have a "dangerous tendency" to produce substantive evil and the finding by a jury to that effect, and on this basis reversed the conviction of a communist organizer under a State criminal syndicalism statute, with the intimation that where it is left to a jury to determine whether particular utterances are unlawful, the test of clear and present danger must be applied.[102] Finally, in Thornhill v. Alabama,[103] the Court went the full length in invalidating a State law against picketing because[104] "* * * no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter." The same term, again invoking the clear and present danger formula, it reversed a conviction for the common law offense of inciting a breach of the peace by playing, on a public street, a phonograph record attacking a religious sect.[105]

THE POLICE POWER AND CLEAR AND PRESENT DANGER

Public Order

Prior to the Court's ratification of the clear and present danger test it had held that while on the one hand, peaceful and orderly opposition to government by legal means may not be inhibited, and that the Constitution insures the "maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means,"[106] yet on the other hand, the State may punish those who abuse their freedom of speech by utterances tending to incite to crime,[107] or to endanger the foundations of organized government or to threaten its overthrow by unlawful means.[108] The impact of the clear and present danger test upon these principles is well illustrated by a holding in 1949 by a sharply divided Court, that a Chicago ordinance which, as judicially interpreted, was held to permit punishment for breach of the peace for speech which "stirs the public to anger, invites disputes, (or) brings about a condition of unrest" was an undue and unlawful restriction on the right of free speech.[109] Reversing a conviction under the ordinance, Justice Douglas wrote: "A function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute * * * is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[110] Finding that the ordinance as thus construed was unconstitutional, the majority did not enter into a consideration of the facts of the particular case. Dissenting, Justice Jackson dwelt at length upon the evidence which showed that a riot had actually occurred and that the speech in question had in fact provoked a hostile mob, incited a friendly one, and threatened violence between the two. Conceding the premises of the majority opinion, he argued nevertheless that: "Because a subject is legally arguable, however, does not mean that public sentiment will be patient of its advocacy at all times and in all manners. * * * A great number of people do not agree that introduction to America of communism or fascism is even debatable. Hence many speeches, such as that of Terminiello, may be legally permissible but may nevertheless in some surroundings be a menace to peace and order. When conditions show the speaker that this is the case, as it did here, there certainly comes a point beyond which he cannot indulge in provocations to violence without being answerable to society."[111] Early in 1951 the Court itself endorsed this position in Feiner v. New York.[112] Here was sustained the conviction of a speaker who in addressing a crowd including a number of Negroes, through a public address system set up on the sidewalk, asserted that the Negroes "should rise up in arms and fight for their rights," called a number of public officials, including the President, "bums," and ignored two police requests to stop speaking. The Court took cognizance of the findings by the trial court and two reviewing State courts that danger to public order was clearly threatened.[113]

Public Morals

But the police power extends also to the public morals. In Winters v. New York[114] the question at issue was the constitutionality of a State statute making it an offense "to print, publish, or distribute, or to possess with intent to distribute, any printed matter principally made up of criminal views, police reports, or accounts of criminal deeds, or pictures, or stories of deeds of bloodshed, lust or crime," and construed by the State courts "as prohibiting such massing of accounts of deeds of bloodshed and lust as to incite to crimes against the person." A divided Court, 6 Justices to 3, following the third argument of the case before it, set the act aside on the ground that, as construed, it did not define the prohibited acts in such a way as to exclude those which are a legitimate exercise of the constitutional freedom of the press; and further, that it failed to set up an ascertainable standard of guilt.[115] A few weeks earlier the Court had vacated a judgment of the Supreme Court of Utah affirming convictions on a charge of conspiring to "commit acts injurious to public morals" by counseling, advising and practicing plural marriage.[116] Four members of the Court thought that the cause should be remanded in order to give the State Supreme Court opportunity to construe that statute and a fifth agreed with this result without opinion. Justice Rutledge, speaking for himself and Justices Douglas and Murphy, dissented on the ground that the Utah Court had already construed the statute to authorize punishment for exercising the right of free speech. He said: "The Utah statute was construed to proscribe any agreement to advocate the practice of polygamy. Thus the line was drawn between discussion and advocacy. The Constitution requires that the statute be limited more narrowly. At the very least the line must be drawn between advocacy and incitement, and even the state's power to punish incitement may vary with the nature of the speech, whether persuasive or coercive, the nature of the wrong induced, whether violent or merely offensive to the mores, and the degree of probability that the substantive evil actually will result."[117]

PICKETING AND CLEAR AND PRESENT DANGER

Closely allied to the problem of dangerous utterances is the resort to picketing as a means of communication and persuasion in labor disputes. In such cases, the evils feared by the legislature usually arise, not out of the substance of the communications, but from the manner in which they are made. Applying the test of clear and present danger in Thornhill v. Alabama[118] and Carlson v. California,[119] the Court invalidated laws against peaceful picketing, including the carrying of signs and banners. It held that: "the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution" and may be abridged only where "the clear danger of substantive evils arises under circumstances affording no opportunity to test the merits of ideas by competition for acceptance in the market of public opinion."[120] Shortly thereafter a divided Court ruled that peaceful picketing may be enjoined where the labor dispute has been attended by violence on a serious scale.[121] Speaking for the majority on this occasion, Justice Frankfurter asserted that "utterance in a context of violence can lose its significance as an appeal to reason and become part of an instrument of force * * * (and) was not meant to be sheltered by the Constitution."[122]

For a brief period strangers to the employer were accorded an almost equal freedom of communication by means of picketing.[123] Subsequent cases, however, have recognized that "while picketing has an ingredient of communication it cannot dogmatically be equated with the constitutionally protected freedom of speech."[124] Without dissent the Court has held that a State may enjoin picketing designed to coerce the employer to violate State law by refusing to sell ice to nonunion peddlers,[125] by interfering with the right of his employees to decide whether or not to join a union,[126] or by choosing a specified proportion of his employees from one race, irrespective of merit.[127] By close divisions, it also sustained the right of a State to forbid the "conscription of neutrals" by the picketing of a restaurant solely because the owner had contracted for the erection of a building (not connected with the restaurant and located some distance away) by a contractor who employed nonunion men;[128] or the picketing of a shop operated by the owner without employees to induce him to observe certain closing hours.[129] In this last case Justice Black distinguished Thornhill v. Alabama and other prior cases by saying, "No opinions relied on by petitioners assert a constitutional right in picketers to take advantage of speech or press to violate valid laws designed to protect important interests of society * * * it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed. * * * Such an expansive interpretation of the constitutional guaranties of speech and press would make it practically impossible ever to enforce laws against agreements in restraint of trade as well as many other agreements and conspiracies deemed injurious to society."[130] By the same token, a State anti-closed shop law does not infringe freedom of speech, of assembly or of petition;[131] neither does a "cease and desist" order of a State Labor Relations Board directed against work stoppages caused by the calling of special union meetings during working hours.[132] But, by a vote of five Justices to four--the five, however, being unable to agree altogether among themselves--a State may not require labor organizers to register,[133] although, as Justice Roberts pointed out for the dissenters, "other paid organizers, whether for business or for charity could be required thus to identify themselves."[134]

CONTEMPT OF COURT AND CLEAR AND PRESENT DANGER

One area in which the clear and present danger rule has undoubtedly enlarged freedom of utterance beyond common law limits is that of discussion of judicial proceedings. In 1907 the Supreme Court speaking by Justice Holmes refused to review the conviction of an editor for contempt of court in publishing articles and cartoons criticizing the action of the court in a pending case.[135] It took the position that even if freedom of the press was protected against abridgment by the State, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth. In recent years the Court not only has taken jurisdiction of cases of this order but has scrutinized the facts with great care and has not hesitated to reverse the action of State courts. Bridges v. California[136] is the leading case. Enlarging upon the idea that clear and present danger is an appropriate guide in determining whether comment on pending cases can be punished, Justice Black said: "We cannot start with the assumption that publications of the kind here involved actually do threaten to change the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a contempt power by which they can close all channels of public expression to all matters which touch upon pending cases. We must therefore turn to the particular utterances here in question and the circumstances of their publication to determine to what extent the substantive evil of unfair administration of justice was a likely consequence, and whether the degree of likelihood was sufficient to justify summary punishment."[137] Speaking on behalf of four dissenting members, Justice Frankfurter objected: "A trial is not a 'free trade in ideas,' nor is the best test of truth in a courtroom 'the power of the thought to get itself accepted in the competition of the market.' * * * We cannot read into the Fourteenth Amendment the freedom of speech and of the press protected by the First Amendment and at the same time read out age-old means employed by states for securing the calm course of justice. The Fourteenth Amendment does not forbid a state to continue the historic process of prohibiting expressions calculated to subvert a specific exercise of judicial power. So to assure the impartial accomplishment of justice is not an abridgment of freedom of speech or freedom of the press, as these phases of liberty have heretofore been conceived even by the stoutest libertarians. In act, these liberties themselves depend upon an untrammeled judiciary whose passions are not even unconsciously aroused and whose minds are not distorted by extrajudicial considerations."[138] In Pennekamp v. Florida,[139] a unanimous Court held that criticism of judicial action already taken, although the cases were still pending on other points, did not create a danger to fair judicial administration of the "clearness and immediacy necessary to close the doors of permissible public comment"[140] even though the State court held and the Supreme Court assumed that "the petitioners deliberately distorted the facts to abase and destroy the efficiency of the court."[141] And in Craig v. Harney,[142] a divided Court held that publication, while a motion for a new trial was pending, of an unfair report of the facts of a civil case, accompanied by intemperate criticism of the judge's conduct was protected by the Constitution. Said Justice Douglas, speaking for the majority: "The vehemence of the language used is not alone the measure of the power to publish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil."[143]

FREEDOM OF SPEECH AND PRESS IN PUBLIC PARKS AND STREETS

Notable also is the protection which the Court has erected in recent years for those who desire to use the streets and the public parks as theatres of discussion, agitation, and propaganda dissemination. In 1897 the Court unanimously sustained an ordinance of the city of Boston which provided that "no person shall, in or upon any of the public grounds, make any public address," etc., "except in accordance with a permit of the Mayor,"[144] quoting with approval the following language from the decision of the Massachusetts Supreme Judicial Court in the same case. "For the legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in the house. When no proprietary right interferes the legislature may end the right of the public to enter upon the public place by putting an end to the dedication to public uses. So it may take the less step of limiting the public use to certain purposes."[145] Forty-two years later this case was distinguished in Hague v. C.I.O.[146] (See p. 808.) And in 1948 in Saia v. New York[147] an ordinance forbidding the use of sound amplification devices by which sound is cast directly upon the streets and public places, except with permission of the chief of police, for the exercise of whose discretion no standards were prescribed, was held unconstitutional as applied to one seeking leave to amplify religious lectures in a public park. The decision was a five-to-four holding; and eight months later a majority, comprising the former dissenters and the Chief Justice, held it to be a permissible exercise of legislative discretion to bar sound trucks, with broadcasts of public interest, amplified to a loud and raucous volume, from the public ways of a municipality.[148] Conversely, it was within the power of the Public Utilities Commission of the District of Columbia, following a hearing and investigation, to issue an order permitting the Capital Transit Company, despite the protest of some of its patrons, to receive and amplify on its street cars and buses radio programs consisting generally of 90% music, 5% announcements, and 5% commercial advertising. Neither operation of the radio service nor the action of the Commission permitting it was precluded by the First and Fifth Amendments.[149]

Under still unoverruled decisions an ordinance forbidding any distribution of circulars, handbills, advertising, or literature of any kind within the city limits without permission of the City Manager is an unlawful abridgment of freedom of the press.[150] So also are ordinances which forbid, without exception, any distributions of handbills upon the streets.[151] Even where such distribution involves a trespass upon private property in a company owned town,[152] or upon Government property in a defense housing development,[153] it cannot be stopped. The passing out of handbills containing commercial advertising may, however, be prohibited; this is true even where such handbills may contain some matter which, standing alone would be immune from the restriction.[154] A municipal ordinance forbidding any person to ring door bells, or otherwise summon to the door the occupants of any residence, for the purpose of distributing to them circulars or handbills was held to infringe freedom of speech and of the press as applied to a person distributing advertisements of a religious meeting.[155] But an ordinance forbidding door to door peddling or canvassing unless it is invited or requested by the occupant of a private residence is valid.[156]

CENSORSHIP

Freedom from previous restraints has never been regarded as absolute. The principle that words having the quality of verbal acts might be enjoined by court order was established in Gompers v. Bucks Stove and Range Co.;[157] and in Near v. Minnesota[158] the Court, speaking through Chief Justice Hughes, even while extending Blackstone's condemnation of censorship to a statute which authorized the enjoining of publications alleged to be persistently defamatory, criticized it as being in some respects too sweeping. Indeed, the distinction between prevention and punishment appears to have played little or no part in determining when picketing may be forbidden in labor disputes.[159] In Chaplinsky v. New Hampshire[160] and Board of Education v. Barnette,[161] the opinions indicated that the power of Government is measured by the same principles in both situations. In the former Justice Murphy asserted: "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or 'fighting' words--those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."[162] To like effect, in Board of Education v. Barnette, Justice Jackson set it down as "a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish."[163]

It is significant that the cases which have sanctioned previous restraints upon the utterances of particular persons have involved restraint by judicial, not administrative action. The prime objective of the ban on previous restraints was to outlaw censorship accomplished by licensing. "The struggle for the freedom of the press was primarily directed against the power of the licensor. It was against that power that John Milton directed his assault by his 'Appeal for the Liberty of Unlicensed Printing.' And the liberty of the press became initially a right to publish 'without a license what formerly could be published only with one'."[164] Even today, a licensing requirement will bring judicial condemnation more surely than any other form of restriction. Except where the authority of the licensing officer is so closely limited as to leave no room for discrimination against utterances he does not approve,[165] the Supreme Court has struck down licensing ordinances, even in respect of a form of communication which may be prohibited entirely.[166] In the case of radio broadcasting, however, where physical limitations make it impossible for everyone to utilize the medium of communication, the Court has thus far sanctioned a power of selective licensing;[167] while with respect to moving pictures it has until very recently held the States' power to license, and hence to censor, films intended for local exhibition to be substantially unrestricted, this being "a business pure and simple, originated and conducted for profit," and "not to be regarded, ... as part of the press of the country or as organs of public opinion."[168] This doctrine was laid down in 1915, but in 1948, in speaking for the Court, in United States v. Paramount Pictures,[169] Justice Douglas indicated a very different position, saying: "We have no doubt that moving pictures, like newspapers and radio, are included in the press whose freedom is guaranteed by the First Amendment."[170] In the so-called "Miracle Case,"[171] in which it was held that under the First and Fourteenth Amendments, a State may not place a prior restraint on the showing of a motion picture film on the basis of the censor's finding that it is "sacrilegious," a word of uncertain connotation, this point of view becomes the doctrine of the Court and the Mutual Films Case is pronounced "overruled" so far as it is out of harmony with the instant holding.[172]

THE CLEAR AND PRESENT DANGER TEST: JUDICIAL DIVERSITIES

In the course of decisions enforcing this test of state action with respect to freedom of speech and press, diversity of opinion has appeared among the Justices upon three closely related topics: first, as to the restrictive force of the test; second, as to the constitutional status of freedom of speech and press; third, as to the kind of speech which the Constitution is concerned to protect. On the first point the following passage from Justice Black's opinion in Bridges v. California[173] is pertinent: "What finally emerges from the 'clear and present danger' cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished. Those cases do not purport to mark the furthermost constitutional boundaries of protected expression, nor do we here. They do no more than recognize a minimum compulsion of the Bill of Rights. For the First Amendment does not speak equivocally. It prohibits any law 'abridging the freedom of speech or of the press.' It must be taken as a command of the broadest scope that explicit language, read in the context of a liberty-loving society, will allow."[174] With this should be compared the following words from Justice Frankfurter's concurring opinion in Pennekamp v. Florida,[175] which involved a closely similar issue to the one dealt with in the Bridges Case: "'Clear and present danger' was never used by Mr. Justice Holmes to express a technical legal doctrine or to convey a formula for adjudicating cases. It was a literary phrase not to be distorted by being taken from its context. In its setting it served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution. When those other attributes of a democracy are threatened by speech, the Constitution does not deny power to the states to curb it."[176]

The second question, in more definite terms, is whether freedom of speech and press occupies a "preferred position" in the constitutional hierarchy of values so that legislation restrictive of it is presumptively unconstitutional. An important contribution to the affirmative view on this point is the following passage from an opinion of Justice Cardozo written in 1937: "One may say that it is the matrix, the indispensable condition, of nearly every other form of freedom. * * * So it has come about that the domain of liberty, withdrawn by the Fourteenth Amendment from encroachment by the states, has been enlarged by latter-day judgments to include liberty of the mind as well as liberty of action. The extension became, indeed, a logical imperative when once it was recognized, as long ago it was, that liberty is something more than exemption from physical restraint, and that even in the field of substantive rights and duties the legislative judgment, if oppressive and arbitrary, may be overridden by the courts."[177] Touching on the same subject a few months later, Chief Justice Stone suggested that: "There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten amendments, which are deemed equally specific when held to be embraced within the Fourteenth." And again: "It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation."[178] But the strongest assertion of this position occurs in Justice Rutledge's opinion for a sharply divided Court in Thomas v. Collins.[179] He says: "The case confronts us again with the duty our system places on this Court to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. * * * That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions. And it is the character of the right, not of the limitation, which determines what standard governs the choice. * * * For these reasons any attempt to restrict those liberties must be justified by clear public interest, threatened not doubtfully or remotely, but by clear and present danger. The rational connection between the remedy provided and the evil to be curbed, which in other contexts might support legislation against attack on due process grounds, will not suffice. These rights rest on firmer foundation. Accordingly, whatever occasion would restrain orderly discussion and persuasion, at appropriate time and place, must have clear support in public danger, actual or impending. Only the gravest abuses, endangering paramount interests, give occasion for permissible limitation. It is therefore in our tradition to allow the widest room for discussion, the narrowest range for its restriction, particularly when this right is exercised in conjunction with peaceable assembly. It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable. They are cognate rights."[180] This was 1945. Four years later the controlling wing of the Court, in sustaining a local ordinance, endorsed a considerably less enthusiastic appraisal of freedom of speech and press. Thus while alluding to "the preferred position of freedom of speech in a society that cherishes liberty for all," Justice Reed went on to say, that this "does not require legislators to be insensible to claims by citizens to comfort and convenience. To enforce freedom of speech in disregard of the rights of others would be harsh and arbitrary in itself."[181] And Justice Frankfurter denied flatly the propriety of the phrase "preferred position," saying: "This is a phrase that has uncritically crept into some recent opinions of this Court. I deem it a mischievous phrase, if it carries the thought, which it may subtly imply, that any law touching communication is infected with presumptive invalidity. It is not the first time in the history of constitutional adjudication that such a doctrinaire attitude has disregarded the admonition most to be observed in exercising the Court's reviewing power over legislation, 'that it is a constitution we are expounding,' M'Culloch v. Maryland, 4 Wheat. 316, 407. I say the phrase is mischievous because it radiates a constitutional doctrine without avowing it. Clarity and candor in these matters, so as to avoid gliding unwittingly into error, make it appropriate to trace the history of the phrase 'preferred position.'"[182] which Justice Frankfurter then proceeded to do. Justice Jackson also protested: "We cannot," he said, "give some constitutional rights a preferred position without relegating others to a deferred position."[183]

The third question concerns the quality and purpose of the speech which the Constitution aims to protect. In 1949, Justice Douglas speaking for a divided Court returned the following robustious answer to this question: "* * * a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[184] But early in 1951 Justice Jackson, in a dissenting opinion, urges the Court to review its entire position in the light of the proposition that "the purpose of constitutional protection of freedom of speech is to foster peaceful interchange of all manner of thoughts, information and ideas," that "its policy is rooted in faith of the force of reason."[185] He considers that the Court has been striking "rather blindly at permit systems which indirectly may affect First Amendment freedom." He says: "Cities throughout the country have adopted the permit requirement to control private activities on public streets and for other purposes. The universality of this type of regulation demonstrates a need and indicates widespread opinion in the profession that it is not necessarily incompatible with our constitutional freedoms. Is everybody out of step but this Court? * * * It seems hypercritical to strike down local laws on their faces for want of standards when we have no standards. And I do not find it required by existing authority. I think that where speech is outside of constitutional immunity the local community or the State is left a large measure of discretion as to the means for dealing with it."[186] This diversity of viewpoint on the Court touching the above questions became of importance when, recently, the Court was faced with the problem of the relation of freedom of speech to the enumerated powers of the National Government, in contrast to the indefinite residual powers of the States.

TAXATION

The Supreme Court, citing the fact that the American Revolution "really began when * * * that government (of England) sent stamps for newspaper duties to the American colonies" has been alert to the possible uses of taxation as a method of suppressing objectionable publications.[187] Persons engaged in the dissemination of ideas are, to be sure, subject to ordinary forms of taxation in like manner as other persons.[188] With respect to license or privilege taxes, however, they stand on a different footing. Their privilege is granted by the Constitution and cannot be withheld by either State or Federal Government. Hence a license tax measured by gross receipts for the privilege of engaging in the business of publishing advertising in any newspaper or other publication was held invalid[189] and flat license fees levied and collected as a pre-condition to the sale of religious books and pamphlets have also been set side.[190]

FEDERAL RESTRAINTS ON FREEDOM OF SPEECH AND PRESS

Regulations of Business and Labor Activities

The application to newspapers of the Anti-Trust Laws,[191] the National Labor Relations Act,[192] or the Fair Labor Standards Act,[193] does not abridge the freedom of the press. In Gompers v. Bucks Stove and Range Co.,[194] the Supreme Court unanimously held that a court of equity may enjoin continuance of a boycott, despite the fact that spoken or written speech was used as an instrumentality by which the boycott was made effective. "In the case of an unlawful conspiracy, the agreement to act in concert when the signal is published gives the words 'Unfair,' 'We Don't Patronize,' or similar expressions, a force not inhering in the words themselves, and therefore exceeding any possible right of speech which a single individual might have. Under such circumstances they become what have been called 'verbal acts,' and as much subject to injunction as the use of any other force whereby property is unlawfully damaged."[195] A cognate test has been applied in determining when communications by an employer constitute an unfair labor practice which may be forbidden or penalized under the National Labor Relations Act without infringing freedom of speech. In Labor Board v. Virginia Power Co.,[196] the Court held that the sanctions of the act might be imposed upon an employer for the protection of his employees, where his conduct "though evidenced in part by speech, * * * (amounted) to coercion within the meaning of the act."[197] In the opinion of the Court, Justice Murphy stated, "The mere fact that language merges into a course of conduct does not put that whole course without the range of otherwise applicable administrative power. In determining whether the Company actually interfered with, restrained, and coerced its employees, the Board has a right to look at what the Company has said, as well as what it has done."[198] But the constitutionality of legislation prohibiting the publication by corporations and unions in the regular course of conducting their affairs of periodicals advising their members, stockholders or customers of danger or advantage to their interest from the adoption of measures or the election to office of men espousing such measures has been declared by the Court to be open to gravest doubt.[199]

REGULATION OF POLITICAL ACTIVITIES OF FEDERAL EMPLOYEES

The leading case touching this subject is Ex parte Curtis, decided seventy years ago.[200] Here was sustained an act of Congress which prohibited, under penalties, certain categories of officers of the United States from requesting, giving to, or receiving from, any other officer, money or property or other thing of value for political purposes.[201] Two generations later was enacted the so-called Hatch Act[202] which, while making some concessions to freedom of expression on matters political by employees of the government, forbids their active participation in political management and political campaigns. The act was sustained against objections based on the Bill of Rights;[203] while an amendment to it the effect of which is to diminish the amount of a federal grant-in-aid of the construction of highways in a State which fails to remove from office "one found by the United States Civil Service Commission to have taken active part in political management or in political campaigns while a member of the state highway commission," was held not to violate Amendment X.[204]

LEGISLATION PROTECTIVE OF THE ARMED FORCES AND OF THE WAR POWER

The Federal Government may punish utterances which obstruct its recruiting or enlistment service, cause insubordination in the armed forces, encourage resistance to government in the prosecution of war, or impede the production of munitions and other essential war material.[205] The only issue which has divided the Court with regard to such speech has been the degree of danger which must exist before it may be punished. The recent decision in Dennis v. United States diminishes, if it does not eliminate, this issue.[206]

LOYALTY REGULATIONS: THE DOUDS CASES

"Section 9 (h) of the Labor Management Relations Act requires, as a condition of a union's utilizing the opportunities afforded by the act, each of its officers to file an affidavit with the National Labor Relations Board (1) that he is not a member of the Communist Party or affiliated with such party, and (2) that he does not believe in, and is not a member of or supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods." The statute also makes it a criminal offense to make willfully or knowingly any false statement in such an affidavit.[207] In American Communications Association, C.I.O. et al. v. Douds[208] five of the six Justices participating sustained the requirement (1) and three Justices sustained the requirement (2) against the objection that the act exceeded Congress's power over interstate commerce and infringed freedom of speech and the rights of petition and assembly; and in Osman v. Douds[209] the same result was reached by a Court in which only Justice Clark did not participate. In the end only Justice Black condemned requirement (1), while the Court was evenly divided as to requirement (2). In the course of his opinion for the controlling wing of the Court, Chief Justice Vinson said: "The attempt to apply the term, 'clear and present danger,' as a mechanical test in every case touching First Amendment freedoms, without regard to the context of its application, mistakes the form in which an idea was cast for the substance of the idea * * * the question with which we are here faced is not the same one that Justices Holmes and Brandeis found convenient to consider in terms of clear and present danger. Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result therefrom if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. * * * The contention of petitioner * * * that this Court must find that political strikes create a clear and present danger to the security of the Nation or of widespread industrial strife in order to sustain Sec. 9 (h) similarly misconceives the purpose that phrase was intended to serve. In that view, not the relative certainty that evil conduct will result from speech in the immediate future, but the extent and gravity of the substantive evil must be measured by the 'test' laid down in the Schenck Case."[210] In thus balancing the gravity of the interest protected by legislation from harmful speech against the demands of the clear and present danger rule the Court paved the way for its decision a year later in Dennis v. United States.

THE CASE OF THE ELEVEN COMMUNISTS

Dennis v. United States[211] involves the following legislation:

"Section 2. (a) It shall be unlawful for any person--

"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government;

"(2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence;

"(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purposes thereof.

"(b) For the purposes of this section, the term 'government in the United States' means the Government of the United States, the government of any State, Territory, or possession of the United States, the government of the District of Columbia, or the government of any political subdivision of any of them."[212]

The trial court had ruled that clause (2) of the act qualified both the other clauses; and this construction was endorsed by the Supreme Court. The judgment of the Court sustaining the convictions against objections raised under Amendment I was supported by three different opinions. Chief Justice Vinson, speaking also for Justices Reed, Burton and Minton emphasized the substantial character of the Government's interest in preventing its own overthrow by force. "Indeed," said he, "this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected."[213] The opinion continues: "If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required. The argument that there is no need for Government to concern itself, for Government is strong, it possesses ample powers to put down a rebellion, it may defeat the revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow the Government by force, even though doomed from the outset because of inadequate numbers or power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such attempts create both physically and politically to a nation makes it impossible to measure the validity in terms of the probability of success or the immediacy of a successful attempt."[214] The Chief Justice concluded this part of his opinion by quoting from Chief Judge Learned Hand's opinion for the Circuit Court of Appeals in the same case, as follows: "'In each case [courts] must ask whether the gravity of the evil, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.'"[215] In short, if the evil legislated against is serious enough, advocacy of it in order to be punishable does not have to be attended by a clear and present danger of success.

But at this point the Chief Justice appears to recoil from this abrupt dismissal of the clear and present danger formula for the more serious cases, and he makes a last moment effort to rescue the babe that he has tossed out with the bathwater. He says: "As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words. Likewise, we are in accord with the court below, which affirmed the trial court's finding that the requisite danger existed. The mere fact that from the period 1945 to 1948 petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score. And this analysis disposes of the contention that a conspiracy to advocate, as distinguished from the advocacy itself, cannot be constitutionally restrained, because it comprises only the preparation. It is the existence of the conspiracy which creates the danger."[216] His final position seems to be that, after all, the question is one for judicial discretion. "When facts are found that establish the violation of a statute, the protection against conviction afforded by the First Amendment is a matter of law. The doctrine that there must be a clear and present danger of a substantive evil that Congress has a right to prevent is a judicial rule to be applied as a matter of law by the courts."[217]

Justice Frankfurter's lengthy concurring opinion premises "the right of a government to maintain its existence--self preservation." This, he says, is "the most pervasive aspect of sovereignty," citing The Federalist No. 41, and certain cases.[218] A little later he raises the question, "But how are competing interests to be assessed?" and answers: "Full responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. Primary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress. The nature of the power to be exercised by this Court has been delineated in decisions not charged with the emotional appeal of situations such as that now before us. We are to set aside the judgment of those whose duty it is to legislate only if there is no reasonable basis for it."[219] But a difficulty exists, to wit, in the clear and present danger doctrine. He says: "In all fairness, the argument [of defendants] cannot be met by reinterpreting the Court's frequent use of 'clear' and 'present' to mean an entertainable 'probability.' In giving this meaning to the phrase 'clear and present danger,' the Court of Appeals was fastidiously confining the rhetoric of opinions to the exact scope of what was decided by them. We have greater responsibility for having given constitutional support, over repeated protests, to uncritical libertarian generalities. Nor is the argument of the defendants adequately met by citing isolated cases. * * * The case for the defendants requires that their conviction be tested against the entire body of our relevant decisions."[220]

Turning then to the cases Justice Frankfurter exclaims at last: "I must leave to others the ungrateful task of trying to reconcile all these decisions."[221] The nearest precedent was Gitlow v. New York.[222] Here "we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. * * * But it would be disingenuous to deny that the dissent in Gitlow has been treated with the respect usually accorded a decision."[223] But the case at bar was a horse of a different color. "In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security,"[224] which seems to be in essential agreement with the position of the Chief Justice and his three associates. Justice Frankfurter concludes with a homily on the limitations which the nature of judicial power imposes, on the power of judicial review. He says: "Can we then say that the judgment Congress exercised was denied it by the Constitution? Can we establish a constitutional doctrine which forbids the elected representatives of the people to make this choice? Can we hold that the First Amendment deprives Congress of what it deemed necessary for the Government's protection? To make validity of legislation depend on judicial reading of events still in the womb of time--a forecast, that is, of the outcome of forces at best appreciated only with knowledge of the topmost secrets of nations--is to charge the judiciary with duties beyond its equipment. We do not expect courts to pronounce historic verdicts on bygone events. Even historians have conflicting views to this day on the origin and conduct of the French Revolution. It is as absurd to be confident that we can measure the present clash of forces and their outcome as to ask us to read history still enveloped in clouds of controversy. * * * The distinction which the Founders drew between the Court's duty to pass on the power of Congress and its complementary duty not to enter directly the domain of policy is fundamental. But in its actual operation it is rather subtle, certainly to the common understanding. Our duty to abstain from confounding policy with constitutionality demands preceptive humility as well as self-restraint in not declaring unconstitutional what in a judge's private judgment is unwise and even dangerous."[225]

Justice Jackson's opinion emphasizes the conspiratorial element of the case, and is flatfooted in rejecting the 'clear and present danger' test for this type of case. He writes: "The 'clear and present danger' test was an innovation by Mr. Justice Holmes in the Schenck Case, reiterated and refined by him and Mr. Justice Brandeis in later cases, all arising before the era of World War II revealed the subtlety and efficacy of modernized revolutionary techniques used by totalitarian parties. In those cases, they were faced with convictions under so-called criminal syndicalism statutes aimed at anarchists but which, loosely construed, had been applied to punish socialism, pacifism, and left-wing ideologies, the charges often resting on far-fetched inferences which, if true, would establish only technical or trivial violations. They proposed 'clear and present danger' as a test for the sufficiency of evidence in particular cases. I would save it, unmodified, for application as a 'rule of reason' in the kind of case for which it was devised. When the issue is criminality of a hot-headed speech on a street corner, or circulation of a few incendiary pamphlets or parading by some zealots behind a red flag, or refusal of a handful of school children to salute our flag, it is not beyond the capacity of the judicial process to gather, comprehend, and weigh the necessary materials for decision whether it is a clear and present danger of substantive evil or a harmless letting off of steam. It is not a prophecy, for the danger in such cases has matured by the time of trial or it was never present. The test applies and had meaning where a conviction is sought to be based on a speech or writing which does not directly or explicitly advocate a crime but to which such tendency is sought to be attributed by construction or by implication from external circumstances. The formula in such cases favors freedoms that are vital to our society, and, even if sometimes applied too generously, the consequences cannot be grave. But its recent expansion has extended, in particular to Communists, unprecedented immunities. Unless we are to hold our Government captive in a judge-made verbal trap, we must approach the problem of a well-organized, nation-wide conspiracy, such as I have described, as realistically as our predecessors faced the trivialities that were being prosecuted until they were checked with a rule of reason. I think reason is lacking for applying that test to this case."[226] And again, "What really is under review here is a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy. With due respect to my colleagues, they seem to me to discuss anything under the sun except the law of conspiracy. One of the dissenting opinions even appears to chide me for 'invoking the law of conspiracy.' As that is the case before us, it may be more amazing that its reversal can be proposed without even considering the law of conspiracy. The Constitution does not make conspiracy a civil right. The Court has never before done so and I think it should not do so now. Conspiracies of labor unions, trade associations, and news agencies have been condemned, although accomplished, evidenced and carried out, like the conspiracy here, chiefly by letter-writing, meetings, speeches and organization. Indeed, this Court seems, particularly in cases where the conspiracy has economic ends, to be applying its doctrines with increasing severity. While I consider criminal conspiracy a dragnet device capable of perversion into an instrument of injustice in the hands of a partisan or complacent judiciary, it has an established place in our system of law, and no reason appears for applying it only to concerted action claimed to disturb interstate commerce and withholding it from those claimed to undermine our whole Government. * * *"[227]

The dissenters were Justices Black and Douglas. The former reiterated his position in Bridges v. California; the latter italicized Justice Brandeis' dictum in the Whitney Case: "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence."[228] The answer would seem to be that education had not in fact prevented the formation of the conspiracy for entering into which the eleven defendants were convicted. If that be deemed a danger at all, it was certainly a clear and present one. Both dissenters, in fact, ignore the conspiracy element.

SUBVERSIVE ORGANIZATIONS

In a series of cases[229] in which certain organizations sued the Attorney General for declaratory or injunctive relief looking to the deletion of their names from a list of organizations designated by him to be subversive, the Court reversed holdings of the courts below which had denied relief. Two Justices thought the order not within the President's Executive Order No. 9835, which lays down a procedure for the determination of the loyalty of federal employees or would-be-employees. Justice Black thought the Attorney General had violated Amendment I and that the President's order constituted a Bill of Attainder. He and Justices Frankfurter and Jackson also held that the Attorney General had violated due process of law in having failed to give the petitioners notice and hearing. Justice Reed, with the concurrence of the Chief Justice and Justice Minton, dissented, asserting that the action of the Court constituted an interference with the discretion of the executive in the premises.

RECENT STATE LEGISLATION

Loyalty Tests

The decision in Dennis v. United States,[230] taken in conjunction with those in the two Douds[231] Cases, put the clear and present danger rule on the defensive in the field of federal legislation. Substantially contemporaneous holdings in the field of state action may reflect a similar trend. In Garner v. Los Angeles Board,[232] the Court sustained the right of a municipality to bar from employment persons who advise, advocate, or teach the violent overthrow of the government, or who are members of, or become affiliated with any group doing so, and to exact a loyalty oath of its employees. In Adler v. Board of Education[233] the Court sustained the Civil Service Law of New York as implemented by the so-called Feinberg Law of 1949.[234] The former makes ineligible in any public school any member of an organization advocating the overthrow of government by force, violence, or any unlawful means. The Feinberg Law requires the Board of Regents of the State (1) to adopt and enforce rules for the removal of ineligible persons; (2) to promulgate a list of banned organizations; (3) to make membership in any such organization prima facie evidence of disqualification for employment in the public schools. Referring to the Garner Case above, Justice Minton, for the Court, said: "We adhere to that case. A teacher works in a sensitive area in the schoolroom. There he shapes the attitude of young minds towards the society in which they live. In this, the state has a vital concern. It must preserve the integrity of the schools. That the school authorities have the right and the duty to screen the officials, teachers, and employees as to their fitness to maintain the integrity of the schools as a part of ordered society, cannot be doubted. One's associates, past and present, as well as one's conduct, may properly be considered in determining fitness and loyalty. From time immemorial, one's reputation has been determined in part by the company he keeps. In the employment of officials and teachers of the school system, the state may very properly inquire into the company they keep, and we know of no rule, constitutional or otherwise, that prevents the state, when determining the fitness and loyalty of such persons, from considering the organizations and persons with whom they associate."[235]

Group Libel

In 1952 in Beauharnais v. Illinois[236] the Court sustained an Illinois statute which makes it a crime to exhibit in a public place any publication which "portrays depravity, criminality, unchastity, or lack of virtue of a class of citizens, of any race, color, creed or religion" or which "exposes the citizens of any race, color, creed or religion to contempt, derision, or obloquy." The act was treated by the State Supreme Court as a form of criminal libel, with the result that defense by truth of the utterance was not under Illinois law available unless the publication was also shown to have been made "with good motives and with justifiable ends." So construed, the Court held, the Act did not violate liberty of speech and press as guaranteed to the States by Amendment XIV. Said Justice Frankfurter:

"If an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a State power to punish the same utterance directed at a defined group, unless we can say that this is a wilful and purposeless restriction unrelated to the peace and well-being of the State."[237] Pointing then to Illinois' bad record in the matter of race riots, he continued: "In the face of this history and its frequent obligato of extreme racial and religious propaganda, we would deny experience to say that the Illinois legislature was without reason in seeking ways to curb false or malicious defamation of racial and religious groups, made in public places and by means calculated to have a powerful emotional impact on those to whom it was presented. 'There are limits to the exercise of these liberties [of speech and of the press]. The danger in these times from the coercive activities of those who in the delusion of racial or religious conceit would incite violence and breaches of the peace in order to deprive others of their equal right to the exercise of their liberties, is emphasized by events familiar to all. These and other transgressions of those limits the States appropriately may punish.' * * * It is not within our competence to confirm or deny claims of social scientists as to the dependence of the individual on the position of his racial or religious group in the community. It would, however, be arrant dogmatism, quite outside the scope of our authority in passing on the powers of a State, for us to deny that the Illinois legislature may warrantably believe that a man's job and his educational opportunities and the dignity accorded him may depend as much on the reputation of the racial and religious group to which he willy-nilly belongs, as on his own merits. This being so, we are precluded from saying that speech concededly punishable when immediately directed at individuals cannot be outlawed if directed at groups with whose position and esteem in society the affiliated individual may be inextricably involved."[238]

CENSORSHIP OF THE MAILS: FRAUD ORDER