CHAPTER IX

THE LAW OF STATE COMITY, TERRITORIES AND POSSESSIONS

120. The States comprising the Union possess equal powers and are subject to the same limitations. This means, in brief, that they have, respectively, the same jurisdiction. The sovereignty of one State is equal to the sovereignty of another. Because of this equality, they are all subject to the same rules of State comity. The aspects of this mutual equality are numerous and are the subject of provisions of the Constitution.[304]

In so far as a State possesses jurisdiction it may exercise authority.[305] This rule is fundamental in American constitutional law. The Constitution of the United States confers no new power of jurisdiction by simply regulating the effect of the acknowledged jurisdiction over persons and things within a State.[306] Thus a State cannot make its law valid in another State; the validity of a State law depends upon the will of the State in which the validity is claimed. From this it follows that “the jurisdiction of any (State) court exercising authority over a subject (_i. e._, persons or property) may be inquired into in every other (State) court when the proceedings in the former are relied upon and brought before the latter by a party claiming the benefit of such proceedings.”[307]

So, despite the fourth article of the Constitution as to “full faith and credit,” and “public acts, records, and judicial proceedings” in the several States, “a judgment rendered in any State may be questioned in a collateral proceeding in another State.”[308]

121. This principle is disclosed by examination of the States as civil and political entities, for:

It is equally well settled that the several States of the Union are to be considered in this respect as foreign to each other, and that the courts of one State are not presumed to know, and therefore, not bound to take judicial notice of the laws of another State.[309]

Therefore, whenever it becomes necessary for a court of one State, in order to give full faith and credit to a judgment rendered in another State, to ascertain the effect which it has in that State, the law of that State must be proved, like any other fact.[310]

But national courts are bound to take notice without proof of the laws of each of the States.[311] The principle is thus laid down by Chief Justice Marshall: “The laws of a foreign nation, designed only for the direction of its own affairs, are not to be noticed by the courts of other countries, unless proved as facts.”[312] For national purposes embraced by the Constitution, the States and their citizens are one, united under the same sovereign authority, and governed by the same laws. In all other respects the States are necessarily foreign to and independent of each other,—their constitutions and forms of government being, although republican, altogether different, as are their laws and institutions.[313] In government, jurisdiction is co-extensive with sovereignty. Faith, credit, public acts, records, or judicial proceedings that are valid in a State are, when proved, valid in every other State, and Congress possesses the power to prescribe by general laws the manner and the effect of proof. This supreme power is incidental, as well as necessary, to national sovereignty as realized in “the more perfect Union.”[314]

122. The citizens of each State are entitled to all privileges and immunities of citizens in the several States.[315] But a corporation is not a citizen, being but an artificial person created by the Legislature and possessing only the powers and attributes which the Legislature has prescribed.[316] This conclusion is inevitable from the principle of jurisdiction. No State can create or give powers to a corporation in another State, or powers that will be valid there. A corporation created by a Legislature has powers and privileges only within the jurisdiction of that Legislature; or, as is said: “The corporation being the mere creation of local law, can have no legal existence beyond the limits of the sovereignty where created.”[317] Thus a State may admit or exclude foreign corporations, and the corporation cannot maintain a claim of citizenship to right to enter the State.

123. The words “privileges and immunities of citizens” are of comprehensive meaning as determined by the courts from time to time as issues (cases or controversies) come before them. The clause in the Constitution

plainly and unmistakably secures and protects the right of a citizen of one State to pass into any other State of the Union for the purpose of enjoying in lawful commerce, trade, or business, without molestation; to acquire personal property; to take and hold real estate; to maintain actions in the courts of the State, and to be exempt from any higher taxes or excises than are imposed by the State upon its own citizens.[318]

Or, as the principle is further stated: the sole purpose of the constitutional provision is

to declare to the several States, that whatever those rights (_i. e._, the rights of citizens of that State),—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 own jurisdiction.[319]

But the citizen from another State must comply with the laws of the State into which he comes before he can have the protection of its sovereignty.

The Constitution forbids only such legislation affecting citizens of the respective States as will substantially or practically put a citizen of one State in a condition of alienage when he is within, or when he removes to, another State, or when asserting in another State the rights that commonly appertain to those who are part of the political community known as the People of the United States, by and for whom the government of the Union was ordained and established.[320]

124. The test here is jurisdiction. No State has jurisdiction that is denied it by the Constitution of the United States. Each State has power so far as its jurisdiction, or sovereignty, extends, to declare what shall be offences against its laws, and citizens of other States within its jurisdiction are subject to those laws.[321]

Fugitives from justice escaping from a State or Territory to another are subject to extradition.[322] Upon the Executive of the State or Territory in which the accused is found rests the responsibility of determining, in some legal mode, whether he is a fugitive from the justice of the demanding State. It is within the jurisdiction of the State or Territory into which the accused has fled to demand competent proof that he is in fact a fugitive from the demanding State; otherwise the jurisdiction of the demanding State would extend over the State or Territory into which the accused has fled. But such proof being established, the accused “shall be delivered up” as the federal Constitution prescribes.[323] The principle here is that of State jurisdiction as limited by the supreme law.

125. But the question of powers, or rights, by extradition, raises the question of right of asylum. Do

the States of the Union occupy towards each other, in respect to fugitives from justice, the relation of foreign nations, in the same sense in which the general government stands towards independent sovereignties, on that subject; and, in the further assumption that a fugitive from justice acquires in the State to which he may flee some State or personal right of protection, improperly called a right of asylum, which secures to him exemption from trial and punishment for a crime committed in another State, unless such crime is made the special object or ground of his rendition?[324]

To answer this question in the affirmative is to violate the sole object of the Constitution and acts of Congress concerning the surrender of fugitives from justice. Foreign nations stand in treaty relations with the United States and with each other. The States composing the American Union do not stand, and by the Constitution, cannot stand in treaty relations with one another or with any other State or power.[325]

126. A fugitive from a foreign nation seeking refuge in the United States is not extraditable unless by the terms of the treaty between that nation and the United States. There is nothing in the Constitution, or in the Statutes at large of the United States in reference to interstate rendition of fugitives from justice which can be regarded as establishing any compact between the States of the Union (such as a treaty between the United States and another nation does or may contain), limiting their operation to particular or designated offenses. And it is questionable whether the States, or any of them, could constitutionally enter into any agreement or stipulation one with another for the purpose of defining or limiting the offenses for which fugitives would or should be surrendered. “The plain answer is that the laws of the United States do not recognize any right of asylum on the part of the fugitive from justice in any State to which he has fled.”[326] The principle here laid down finds further explication: To apply the rule of international, or foreign extradition to interstate rendition involves the confusion of two essentially different things, which rest upon entirely different principles.[327] In the former, the extradition depends upon treaty contract, or stipulation, which rests upon good faith, and in respect to which the sovereign upon whom the demand is made can exercise discretion, as well as investigate the charge on which the surrender is demanded, there being no rule of comity under and by nature of which independent nations are required or expected to withhold from fugitives within their jurisdiction the right of asylum. In the matter of interstate rendition, however, there is the binding force and obligation, not of contract, but of the supreme law of the land, which imposes no conditions, or limitations, upon the jurisdiction and authority of the State to which the fugitive is returned.[328]

127. The decision as to whether a State possesses a republican form of government,—or what government in a State is the lawful government rests with the political, not the judicial power. “It is the province of the court to expound the law, not to make it.”[329] Thus the courts follow the political authority.

In the case of foreign nations, the government acknowledged by the President is always recognized in the courts of justice; and this principle has been applied, by the act of Congress, to the sovereign States of the Union.[330]

If the President errs, it is within the power of Congress to apply the proper remedy. “The sovereignty in every State resides in the people of that State, and they may alter and change their form of government at their own pleasure.”[331] But the United States guarantees to each a republican form of government.[332] “No particular government is designated as republican, neither is the exact form to be guaranteed in any manner especially designated.”[333]

The guarantee necessarily implies a duty on the part of the States themselves to provide such a government. All the States had governments when the Constitution was adopted. In all, the people participated to some extent, through their representatives elected in the manner specially provided. These governments the Constitution did not change. They were accepted precisely as they were, and it is, therefore, to be presumed that they were such as it was the duty of the States to provide. Thus we have unmistakable evidence of what was republican in form, within the meaning of that term, as employed in the Constitution.[334]

Conformably with the character of this federal guarantee of the republican form, the Supreme Court has decided that:

In the Constitution the term _State_ most frequently expresses the combined idea ... of people, territory, and government. A _State_, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a government sanctioned and limited by a written constitution, and established by the consent of the governed. It is the union of such States, under a common Constitution, which forms the distinct and greater political unit, which that Constitution designates as the United States, and makes of the people and States, which compose it, one people and one country.... The preservation of the States, and the maintenance of their government, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution, in all of its provisions, looks to an indestructible Union of indestructible States.[335]

The constitutional rules of State comity are therefore rules of national jurisdiction, and operate as limitations on the jurisdiction of the several States. The purpose of these rules, as that of every rule of that jurisdiction is essentially to preserve that jurisdiction, or sovereignty,—and is sufficiently indicated in the Preamble to the Constitution.[336]

128. The admission of a new State into the Union is a political act exclusively within the power of Congress, save that no new State shall be erected within the jurisdiction, or by the conjunction, of States or parts of States, without the consent of the Legislatures of the States concerned, as well as of Congress.[337] This entire act is exclusively political, but the State once admitted into the Union comes within the jurisdiction of the United States as the Constitution provides.[338] The State thus admitted becomes entitled to and possesses all rights of sovereignty and dominion,—that is, rights of jurisdiction, which belonged to the original States.[339]

129. The act enabling the inhabitants of a Territory to adopt a constitution and become a State in the Union usually prescribes that the proposed constitution and government shall be republican in form, shall make no distinction in civil or political rights on account of race or color, shall not be repugnant to the Constitution of the United States, or to the principles of the Declaration of Independence, and shall comply with such conditions as Congress at the time may propose.[340] On June 16, 1906, Congress passed an enabling act under which, four years later, Arizona sought admission into the Union. The new constitution submitted to Congress provided for state-wide recall of State officials. To this provision Congress objected and made the admission of the Territory conditional upon the amendment of its proposed constitution by eliminating the objectionable provision. Arizona complied with the congressional condition and was admitted; thereupon speedily amended its constitution by re-inserting the objectionable clauses. Congress has no power to impose conditions, clauses, or provisions upon the constitution of a State; yet, a provision of a State constitution in conflict with the Constitution of the United States is null and void.[341]

130. As the Union is an indestructible Union of indestructible States, it is a principle of American constitutional law: once a State, always a State. The inhabitants of a Territory having been erected by Congress into inhabitants of a State, territorial jurisdiction, created by act of Congress ceases, and State jurisdiction exists. It is this State jurisdiction in the Union which is indestructible, which can neither be extended, nor diminished by Congress. The equality and equivalency of the States in the Union is a fundamental in American constitutional law. The jurisdiction of a Territory differs from that of a State as a governed differs from a self-governing community.

131. Congress has power “to make all needful rules and regulations respecting the territory and other property belonging to the United States.”[342] This means the power to govern, a power necessary to sovereignty, and the “inevitable consequence of the right to acquire territory; or, as the jurisdiction over a Territory does not belong to any State in the Union, its government lies by implication (if not by necessity) with the United States.”[343]

In creating a territorial jurisdiction, Congress exercises, but does not part with its powers. The power to govern Territories is not conditioned. Such Territories

are but political subdivisions of the outlying dominion of the United States. Their relation to the general government is much the same as that which counties bear to the respective States, and Congress may legislate for them as a State does for its municipal organizations. The organic law (“enabling act”) for a Territory takes the place of a constitution as the fundamental law of the local government. It is obligatory on, and binds the territorial authorities; but Congress is supreme, and for the purposes of this department of its governmental authority, has all the powers of the people of the United States, except such as have been expressly, or by implication reserved in the prohibitions of the Constitution.[344]

132. Congress has full and complete legislative authority over the people of the Territories, and all departments of the territorial government. It may do for the Territories what the people under the Constitution of the United States may do for the States. That the Supreme Court in 1901 gave a new meaning to the jurisdiction of Congress over territory belonging to the United States is now a matter of history. By that decision the power to govern is co-extensive with the power to acquire territory,—and this means sovereignty. Territorial acquisitions are wholly subject to the will of Congress. It may govern them as it sees fit. States, not Territories, are guaranteed by the United States “a republican form of government.” The word “citizens” as used in the Constitution does not include inhabitants of such Territories.[345]

The Constitution of the United States was ordained and established by the people of the United States for themselves, for their own government, and not for the government of the individual States. Each State established a constitution for itself, and, in that constitution, provided such limitations and restrictions on the powers of its particular government as its judgment dictated. The people of the United States framed such a government for the United States as they supposed best adapted to their situation, and best calculated to promote their interests. The powers they conferred on this government were to be exercised by itself; and the limitations on power, if expressed in general terms, are naturally, and we think necessarily, applicable to the government created by the instrument.[346]

But the government thus formed under the Constitution is the government of “the more perfect Union,” which is an “indestructible Union of indestructible States.” By constitutional law, indestructibility is not a quality of any territory under the jurisdiction of the United States.

133. The rights of the inhabitants of such territory are determined by Congress. This power of Congress seems unlimited, but the Supreme Court of the United States disclaims “any intention to hold that the inhabitants of these territories are subject to an unrestrained power on the part of Congress to deal with them upon the theory that they have no rights which it is bound to respect.”[347] What limitation then, if any, is there on Congress, in exercising its powers over such territory?

The Court replies:

There are certain principles of natural justice inherent in the Anglo-Saxon character, which need no expression in constitutions or statutes to give them effect to secure dependencies against legislation manifestly hostile to their real interests.[348]

But the power of Congress to govern Territories, (“dependencies,” “outlying possessions”) is, by present constitutional law, exercisable at the will of Congress.[349] The essential matter is of jurisdiction. The United States is a sovereignty; for some purposes the several States comprising the Union are sovereign,[350] but according to American constitutional law, a Territory, dependency, or outlying possession belonging to the United States is not sovereign, and possesses no powers, rights, privileges, or attributes of sovereignty. The principle may be stated thus: To whatsoever extent Congress exercises jurisdiction, to that extent it governs; its functions are legislative and essentially political; to the extent that they are political they are sovereign.[351]