CHAPTER VIII

THE LAW OF JUDICIAL POWER

96. The people of the United States, like other sovereignties, possess not only legislative and executive functions, but also judicial. The possession of these three powers by sovereignty is essential to its existence and a condition of any conception of it. The judicial power of the United States is vested in one Supreme Court and in such inferior courts as Congress from time to time may ordain and establish. This is a delegation of judicial power.[243] The inferior courts are established by Congress but the power of these courts is delegated to them by the people of the United States through the Constitution. Thus it may be said that these inferior courts exist by act of Congress but their authority is delegated to them by the same sovereignty that empowers Congress to create them. The power of the Supreme Court is defined in the word _supreme_, and that of the inferior courts in the word _inferior_. Congress can neither increase nor decrease this power; the sovereign alone, the people of the United States can modify the grant. This it has done by the Eleventh Amendment, ratified in 1798:

The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State.[244]

This Amendment was added in compliance with the idea,—at the time dominant in America,—that a State, a member of the Union, is a sovereign, and being sovereign, cannot be made defendant (that is, cannot be sued) at the suit of a citizen or subject of another State, or of a foreign country. The idea was,—and is,—that an American Commonwealth may be petitioned, like any other sovereign, but can be sued only in its own courts and with its own consent.[245] In conformity to this idea the Constitution was so amended as to deny to the courts of the United States any jurisdiction whatever in any case in which an American Commonwealth is made a defendant.

97. This Amendment is a limitation of the judicial power delegated to the government of the United States and save in some particulars of applied judicial jurisdiction as original or appellate, is the only limitation. On the principle that the government of the United States “must possess all the means and have a right to resort to all the methods of executing the powers with which it is intrusted that are possessed and exercised by the governments of the particular States,”[246] the judicial power vested in the federal courts must be sufficient for all the functions and purposes of the federal government. The judicial power of the United States extends to all cases, in law and equity, arising under the Constitution, the laws of the United States, and the treaties made under its authority; to all cases affecting ambassadors, other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States is a party; to controversies between two or more States; between citizens of different States; between citizens of the same State claiming lands under grants from different States, and between a State, or its citizens, and foreign states, citizens, or subjects, save and except as jurisdiction is limited by the Eleventh Amendment.[247]

98. It will be observed that the judicial power thus delegated to the United States includes jurisdiction over cases arising outside the domain strictly included (as popularly understood) within the government of the United States. That government is, of necessity and by its nature, a distinct government, possessing powers and functions and purposes of its own, delegated and set forth in the Constitution. Fundamentally there is a government of the United States distinct from the government of the States. The judicial power of the United States includes jurisdiction over controversies to which States are a party,—that is, to controversies to which the United States is not a party. The jurisdiction here has no reference to the controversy but to the status of the parties to the controversy.

99. _The Federalist_ sets forth the principle here involved:

If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number. The mere necessity of uniformity in the interpretation of the national laws decides the question. Thirteen (1787; forty-eight, 1917) independent courts of final jurisdiction over the same causes, is a hydra in government, from which nothing but contradiction and confusion can proceed.[248]

This aspect of the judicial power of the United States concerns the interpretation of the supreme law. One purpose of that law is “to insure domestic tranquillity,”—that is, the peace of the Union.[249]

The Constitution imposes restrictions on the States, which of course means restrictions on their legislatures, their governors, and their courts. Upon principles of good government the States are prohibited from doing many things. How shall infractions of the supreme law be determined? Either by a congressional negative, or by the authority of the federal courts overruling whatsoever act of the State contravenes the Constitution.[250]

100. But the judicial power of the United States extends yet further,—to controversies “in which the State tribunals cannot be supposed to be impartial and unbiased.”[251] The principle here is that the whole is greater than a part;

that the peace of the whole ought not to be left at the disposal of a part. “No man ought to be a judge in his own cause, or in any cause in respect to which he has the least interest or bias.”[252] On the principle that every government ought to possess the means of executing its own provisions by its own authority,

it follows that it is necessary that the construction of the Constitution,—the supreme law,—

should be committed to that tribunal which, having no local attachments, will be likely to be impartial between different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles on which it is founded.[253]

101. The exercise of judicial power by the Supreme Court is provided for, in part, by the Constitution, but Congress is authorized to ordain and establish inferior courts,—which means to define their respective jurisdictions; to bestow upon a court so much judicial power, and to make such restrictions, rules, and regulations as Congress itself may deem proper. Thus Congress establishes such courts and defines their several jurisdictions, but whatsoever judicial power a court possesses, by act of Congress, the court derives from the Constitution in its grant of such power. The jurisdiction of any inferior court of the United States, thus defined by Congress, may vary, from time to time, by act of Congress, but every case arising in the court must be shown, by the record of the court, to be within its jurisdiction.[254] The reason for this important rule (and seeming restriction) conforms to the essential principle in all judicial proceeding: the principle of authority. No court acts without authority and, as judicial examination has for its ultimate purpose the settlement of controversy in a legal manner, the jurisdiction of the court is of primary importance. One of the purposes of the Union is “to establish justice,” and precision in the whole matter of exercise of judicial power is essential.

102. The jurisdiction of the Supreme Court of the United States is both original and appellate. Its original jurisdiction is defined in the Constitution as “in all cases affecting ambassadors, other public ministers and consuls, and those in which a State is a party.”[255] The Court can have original jurisdiction in no other cases, nor can Congress extend or diminish the Court’s jurisdiction. Thus to the words in the Constitution conferring original jurisdiction on the Court “a negative or exclusive sense must be given, or they have no operation at all.”[256] The original jurisdiction of the Supreme Court was conferred because of the dignity and rank of the Court, and the rank of the parties thus privileged to appear before it at first instance. Ambassadors, public ministers, and consuls represent sovereignties, and a State in the Union is “for some purposes sovereign, for some purposes subordinate.”[257] On this delegation of original jurisdiction Chief Justice Marshall remarks: “There is, perhaps, no part of the article under consideration so much required by national policy as this.”[258] The rank of the parties is the reason for giving them the right to begin their case in the Supreme Court. They are not excluded from beginning it in some other court. But Congress, in establishing an inferior court, may deny to it any jurisdiction in cases to which foreign representatives are a party.[259] The right of ambassadors, public ministers, and consuls to begin their suits in the Supreme Court is a privilege accorded them because of their governments, and not because of themselves. As they are accredited to the Government of the United States and not to any State government, it is proper that the United States courts, and of these the Supreme Court, should have original jurisdiction in their cases.[260] In all the other cases mentioned in the Constitution the Supreme Court has appellate jurisdiction; that is, cases come before the Court on appeal from the decision of some inferior federal court, or from some State court, as provided by law. The entire procedure in an appeal to the Supreme Court is regulated by Congress. If a party, whether private person, private corporation, or public corporation, citizen, or State is within the jurisdiction of the United States, then that person or corporation, if a party to a case or controversy at law, is within the jurisdiction of a federal court. The Constitution is the supreme law of the land and this Constitution, the acts of Congress and the treaties made by its authority are the law of federal jurisdiction. Thus it is commonly and truly said, that whensoever the Constitution, or a treaty, or an act of Congress is involved in the controversy, the federal courts (as their several jurisdictions are determined by law) have jurisdiction in the case. The principle is one of sovereignty.

103. The State for some purposes retains its sovereignty,[261] as in the exercise of its police power.[262] By the Constitution, the judicial power of the United States extends “to all cases of admiralty and maritime jurisdiction,” but the State has jurisdiction to punish crimes committed within its territory; to regulate fisheries within that territory, and to punish those who violate its regulations. The admiralty and maritime jurisdiction of the United States extends to the high seas, to the navigable waters of the United States, to the Great Lakes, and to rivers and lakes wholly within a State. Over its own territory the State has jurisdiction; thus the territory which is the scene, or area, or location of the act may be subject to both State and federal jurisdiction, and is always within one or the other.

104. In creating inferior courts, Congress determines the jurisdiction but not the judicial power exercisable within the jurisdiction. Congress does not control the judges in their execution of their office. Judicial power, of whatever extent, is conferred by the Constitution; it is power of a judicial nature delegated by the people of the United States. The inferior courts of the United States sit in the several States, but the right to determine the jurisdiction of these courts is placed not in the State Legislatures (though these Legislatures have by delegated authority, jurisdiction of this territory), but in the supreme judicial tribunal of the nation,—that is, in the Supreme Court of the United States.[263] This means that the Supreme Court “says what the law is.” This is the peculiar office of courts of law. This is another way of saying that the sovereign, the people of the United States, has delegated to the Supreme Court and to inferior courts of the United States not legislative or executive but judicial powers. The courts of law exercise judicial powers as the President exercises executive and the Congress exercises legislative powers,—in order to accomplish the purposes set forth in the Preamble of the Constitution. The courts are empowered to accomplish this purpose only in a judicial way.

105. The inferior courts, established by Congress, have such jurisdiction as Congress in its wisdom sees fit to give them save that the jurisdiction belonging to the Supreme Court cannot be given to an inferior court; there can be but one Supreme Court. The relation of the State courts to the courts of the United States is partly determined by the Constitution, partly by act of Congress. The circumstances under which a case in or from a State court may be transferred, or appealed, to a federal court are various, but the essential reason for such transfer is that the jurisdiction of the United States as defined by the Constitution, a treaty, or an act of Congress, is involved. A case or controversy not involving that jurisdiction cannot arise in any federal court. The possible relations of the Constitution, treaties, and acts of Congress to individuals (persons natural), to corporations (persons artificial, as private corporations), and to States (public corporations), are beyond calculation. The line of demarcation between the jurisdiction of State courts and that of federal courts cannot be fixed by any brief definition or survey. In some instances the jurisdiction is a matter of choice by parties, the court that first takes jurisdiction having it, as it were, by first instance, but in such cases there exists by law a concurrent jurisdiction, judicial procedure being open to parties in either the State or the federal court. In practice, a court restricts itself to its own jurisdiction.

106. It has been said that one test of demarcation between the two jurisdictions is the common law; that each State has the common law but the United States has statute law only. This difference (if true) would restrict federal courts to an exercise of judicial power delegated by the Constitution and set forth in laws made by its authority, while the State courts would administer justice in accord with the law of the States which are both common law and statutory. It must be remembered, however, that federal courts sit in the several States and administer whatsoever law is the local (State) law, taking judicial notice of State statutes, of decisions of State courts, of usages, of the common law as existing in the State, and, therefore, exercising a jurisdiction essentially the same as the State courts. Emphasis may well be placed on the custom of federal courts to follow closely the decisions of State courts,—the result being that State decisions become final in federal courts as do federal decisions in State courts. But the States cannot increase or diminish the jurisdiction of federal courts, nor can Congress increase or diminish the jurisdiction of State courts. Although both courts may have jurisdiction in certain cases, collisions of authority are prevented by good sense and comity among State and federal judges.

107. The essential power of any federal court is to exercise federal judicial jurisdiction. This means, practically, that a federal court does not and cannot exercise State powers. The converse also is true: no State court can exercise federal powers, unless granted those powers by the Constitution, a treaty, or an act of Congress; but a State court exercising any federal powers, is thereby a federal court. The Constitution provides that the judges in every State shall be bound by the supreme law of the land, anything in the constitution or laws of any State to the contrary notwithstanding. This solemn oath of State judges to support the Constitution as the supreme law gives them jurisdiction “to say what the law is,”[264] and howsoever rarely they may exercise the power vested in them to do so, State judges may take judicial notice of any law, State or federal, as harmonizing or conflicting with the Constitution; this means that a State court may pronounce an act of Congress unconstitutional, but the decision of that court is not final: there is but one Supreme Court of the United States.[265]

108. Territorial courts are to be distinguished from courts of the United States. They are not federal courts as are the Supreme Court and the inferior courts, namely, the Circuit Courts, the District Courts, or the Court of Claims. Neither are they State courts.

The Constitution being made only for the people of the United States,—that is, for the people of the United States inhabiting States,[266] does not apply or extend to the territories unless extended by act of Congress. The courts in a territory are created by Congress and have such powers (or jurisdiction) as the act creating them provides. But in creating them, Congress is limited by the Constitution.[267] Congress also creates courts martial, but the jurisdiction of these courts is always subject to inquiry by civil courts. Fundamentally, the reason here is the supremacy of the civil over the military authority in the American system of government.

109. A problem not infrequently arising in courts of law is the solution of some political question involved. All political questions are questions for the political department of the government to settle; they lie wholly outside of the jurisdiction of the courts. Thus the courts never decide as to the wisdom or folly of an executive or legislative act,—and in one form or another, every act of Congress or President is politically wise or unwise according to the political belief of the critic. Nor do the debates over an act fix the meaning of the act, with the court. Where the court was asked to refer to the debates in Congress to determine the meaning of the act, it was said:

All that can be determined from the debates and reports is that various members had various views, and we are left to determine the meaning of this act, as we determine the meaning of other acts, from the language used therein. There is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from which to discover the meaning of the language of a statute passed by that body.[268]

The reason, [continues the court], is that it is impossible to determine with certainty what construction was put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other, the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it passed.

110. In 1828 the Supreme Court sustained as a constitutional exercise of the war power the right of the United States to acquire territory by conquest or treaty.[269] The issue in the case was “the relation in which Florida (at the time a Territory) stands to the United States.” It was an issue in law, not in politics. Whether A or B is the lawful governor of a State is an issue, when legally drawn, for the State courts; but whether a community calling itself a State, is a member of the Union, or should be admitted into it, under the Fourth Article of the Constitution is a political question and is for Congress to decide.

It rests with Congress to decide what government is the established one in a State. For as the United States guarantees to each State a republican form of government, Congress must necessarily decide what government is established in the State before it can determine whether it is republican or not. And when the senators and representatives of a State are admitted into the councils of the Union, the authority of the government under which they are appointed, as well as its republican character, is recognized by the proper constitutional authority. And its decision is binding on every other department of the government, and could not be questioned in a judicial tribunal.[270]

The right to decide such a political question is in Congress and not in the courts.[271]

111. The final authority of American courts of law to construe statutes and constitutions is distinctive. The court pronounces a law unconstitutional and thus expounds the constitution. “This results,” says Cooley, “from the nature of its jurisdiction.” Chief Justice Marshall, in 1803, first applied this principle in a Federal court:

The Government of the United States has been emphatically termed a government of laws and not of men.

The Constitution is the supreme law of the land.

_It is emphatically the province and duty of the judicial department to say what the law is._[272]

In these words is stated the essential doctrine of judicial supremacy. As the doctrine is fundamental, the reason for it is essential to a proper understanding of its vast import:

That the people have an original right to establish for their future government such principles as in their opinion shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments.... It is a proposition too plain to be contested, that the Constitution controls any legislative act repugnant to it; or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written constitutions contemplate them as forming a fundamental and paramount law of the nation, and consequently the theory of every such government must be, that an act of the Legislature repugnant to the constitution is void.... It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So, if a law be in opposition to the Constitution, if both the law and the Constitution apply to a particular case, so that the court must either decide the case conformably to the law disregarding the Constitution, or conformably to the Constitution disregarding the law, the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.... Those, then, who controvert the principle that the Constitution is to be considered in court as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the Constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which according to the principles and theory of our government is entirely void, is yet in practice completely obligatory.... It would be giving the Legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions,—a written constitution,—would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the Constitution of the United States furnish additional arguments in favor of its rejection.[273]

The conclusion of the whole matter is:

Thus the particular phraseology of the Constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument.[274]

112. The federal (or the State) judiciary, while final judge of what the law is, is not the judge of what the law should be: such action would be a violation of judicial functions and an assumption of legislative functions.[275] The court in saying what the law is, that is, what it means, does not attempt to say what the law should be, that is, to make the law. Therefore it is perilous, as likely to embarrass the court, for the court to be subject to the call of the executive, or the legislative, to give an opinion “upon important questions of law, and upon solemn occasions.”[276] The peril lies in possible confusion of governmental functions, or, to use the constitutional term, “offices.” The American people have delegated judicial power to the courts: the people of the several States to their State courts; the people of the United States, to the federal courts; and “it is emphatically the province and duty of the judicial department to say what the law is.”

113. This province the American judiciary occupies, this duty it performs, with the result that it holds a unique place in political history. At no other time, among no other people, in no other form of government has the judiciary executed the office it executes in the American system of government.

It is the consciousness of the American people that law must rest upon justice and reason, that the constitution is a more ultimate formulation of the fundamental principles of justice and reason than mere legislative acts, and that the judiciary is a better interpreter of these fundamental principles than the Legislature,—it is this consciousness which has given such authority to the interpretation of the Constitution by the Supreme Court.[277]

Yet,—so remarks the Supreme Court itself,—

The slightest consideration of the nature, the character, the organization, and the powers of (federal) courts will dispel any fear of serious injury to the government at their hands. While by the Constitution the judicial department is recognized as one of the three great branches among which all the powers and functions of the government are distributed, it is inherently the weakest of them all. Dependent as its courts are for the enforcement of their judgments upon officers appointed by the executive and removable at pleasure, with no patronage and no control of the purse or the sword, their power and influence rest solely upon the public sense of the necessity for the existence of a tribunal to which all may appeal for the assertion and protection of rights guaranteed by the Constitution and by the laws of the land, and on the confidence reposed in the soundness of their decisions and the purity of their motives.[278]

114. To the question, “What is constitutional law in the United States?” the answer is, “Law as interpreted by the Supreme Court.” In other countries, and, generally speaking, in all countries at all times, until the institution of the political system of the United States,—the American system of government,—the supreme law of the land was the will of the executive (as in absolute monarchies), or the supreme will of the legislative (as in Great Britain). So long as the Supreme Court of the United States retains the confidence of the American people, the decisions of that Court will remain the authoritative exposition of American constitutional law.

It follows that the normal execution of the judicial office in America determines the meaning of American constitutional law; or stated in other words, in the decisions of the Supreme Court there are found the formulation of the principles on which law in America is founded, and the application of these principles in testing, as issues arise, the acts of the legislative and the services of the administrative. Therefore it is to the interpretation thus given by the judiciary that we turn for an understanding of the exercise of offices,—legislative, executive, or judicial, delegated as powers by the sovereign, the people of the United States. Whatsoever is done, by either (so-called) department of government in conformity with this delegation of powers is constitutional; and whatsoever is done by either department in conflict with this delegation of powers is unconstitutional. Whether constitutional or unconstitutional it is the exalted and unique office of the Supreme Court to determine. This Court therefore touches American life at every point. Exhaustive examination of its interpretation principles, laws, judicial decisions, arguments of counsel, opinions of experts, writings of jurists, and the history of society,—and such examination alone, answers the question, “What is constitutional law in America?”

In attempting, then, to summarize, the essentials of American constitutional law, it is from the decisions of the Supreme Court, as from no other source, one must derive any authoritative interpretation.

115. The three departments of government are distinct.

The legislative shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative or judicial powers, or either of them; the judicial shall never exercise the executive or legislative powers, or either of them; to the end it may be a government of laws and not of men.[279]

This principle of separation of powers, or offices, of government, is, for many purposes, not merely fundamental, but primary, in American constitutional law. A department of government can execute only the offices, or powers, delegated to it,[280] but the Legislature cannot impose other than judicial duties upon courts of law, or judicial duties upon other than the judiciary.[281]

It follows from this principle that acts done by the legislative, or the judiciary, or the executive, in due course,—that is, according to rules of procedure and in the mode required by law, are official acts and are to be accredited as such.[282] Thus laws which appear on the face of them to be attested by the proper officials of the two Houses, duly signed by the Executive (or, passed over his vote as provided by the Constitution), and published by the official authorized to publish them are legislative acts, (laws) in a constitutional sense. So the records of courts of law made and kept in due procedure, and officially authenticated, are judicial records in a constitutional sense.

116. The original jurisdiction of the Supreme Court is co-extensive with the judicial power delegated by the Constitution.[283] Congress has power to give the inferior courts of the United States “original jurisdiction in any case to which the appellate jurisdiction extends.”[284]

In all cases in which the Constitution, or a treaty, or an act of Congress is involved, the United States through some one of its courts has jurisdiction.[285]

The exemption of an ambassador, public minister, or consul from suits in particular courts “is the privilege, not of the person who happens to fill the office, but of the State or government he represents.”[286] Consuls are oftentimes citizens, not aliens; any exemptions or privileges claimed by such a person accrue to him as consul being an alien, not as consul being also a citizen, of the United States.

The admiralty jurisdiction of the United States extends over all water on which commerce is carried on between different States, or nations.[287] The principle of national commercial jurisdiction is essentially that of national political jurisdiction, a jurisdiction thus declared:

We hold it to be an incontrovertible principle that the Government of the United States may, by means of physical force, exercised through its official agents, execute on every foot of American soil the powers and functions that belong to it. This necessarily involves the power to command obedience to its laws....[288]

It is a fundamental of our constitutional law that no suit can be maintained against the United States, in any court, without express authority of Congress; and the United States cannot be sued in the courts of any State in any case.[289] It is the sovereign right of the United States not to be sued. To the extent that a State is sovereign it has the same right, and “These States are constituent parts of the United States. They are members of one great empire—for some purposes sovereign, for some purposes subordinate.”[290] The physical boundaries of a State, constituting a political, not a judicial question, must be determined by legislative authority, yet if the United States is a party to a case involving the issue of territorial boundary, the case falls within the judicial power,—that is, within the jurisdiction of the courts of the Union.

The States of the Union have agreed in the Constitution that the judicial power of the United States shall extend to _all_ cases arising under the Constitution, laws, and treaties of the United States, without regard to the character of the parties (excluding of course, suits against a State by its own citizens, or by citizens or subjects of foreign states), and equally to controversies to which the United States shall be a party, without regard to the subject of such controversies, and that (the Supreme Court) may exercise original jurisdiction in all such cases [in which a State shall be a party] without excluding those in which the United States may be the opposite party.[291]

In other words, the United States possesses adequate governmental authority and jurisdiction to secure the large purposes outlined in the Preamble to the Constitution. The United States has judicial jurisdiction in all cases arising under the Constitution, the laws and the treaties of the United States “whoever may be the parties.”[292] This principle is of far-reaching effect; no party can be exempt.

117. A corporation created by a State is a citizen of that State for many purposes, but cannot be a citizen of another State because created by the former State. Outside of the State of its creation it is a foreign corporation and possesses only such privileges as are granted to it. This means that rights, privileges, judgments accruing to or possessed by a corporation, say created by Pennsylvania and in Pennsylvania, do not accrue to and are not possessed by that corporation, say in Ohio, unless conferred by Ohio and possessed by the corporation within Ohio, under laws of Ohio, and by decision of Ohio courts. The principle here is the familiar one of jurisdiction. No State has power beyond its own jurisdiction and “the courts of no country execute the penal laws of another.”[293]

The suability of a State involves its sovereignty and its honor and good faith. The constitutional law of America is that a State in the Union cannot be compelled to perform its contracts, although attempts on its part to avoid them may be judicially resisted, and State laws impairing the obligation of contracts are void. Yet the legislative department of a State represents its polity and its will and by every principle of justice is called upon to hold public obligations inviolate.

Any departure from this rule, except for reasons most cogent (of which the Legislature and not the courts, is the judge) never fails in the end to incur the odium of the world, and to bring lasting injury upon the State itself. But to deprive the Legislature of the power of judging what the honor and safety of the State may require, even at the expense of a temporary failure to discharge the public debts, would be attended with greater evils than such failure can cause.[294]

118. The judicial power of the United States extends, under the Constitution to controversies between _citizens of different States_ and the Judiciary Act confers jurisdiction strictly within the meaning of the term.[295]

_States_, as the word is used in the Constitution, means only members of the Union; a Territory is not a State; the citizen of a Territory is not a citizen of a State and any controversy at law which he may have with another person is not “a controversy between citizens of different States,” and therefore does not come within the judicial jurisdiction of the United States. Of course the limitation applies to artificial persons,—corporations created by a State.

A corporation is not a citizen of the State and it cannot maintain a suit in a court of the United States against the citizen of a different State from that by which it was chartered, unless the persons who compose the corporate body are all citizens of that State.[296]

The jurisdiction of American courts is co-extensive with the power that creates them. Thus the jurisdiction of federal courts depends in no way upon the State, and State judges “possess an absolute independence of the United States.”

The Constitution has proceeded upon a theory of its own, and given or withheld powers according to the judgment of the American people, by whom it was adopted. We (_i. e._ the Supreme Court) can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The Constitution has presumed (whether rightly or wrongly we do not inquire) that State attachments, State prejudices, State jealousies, and State interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between States; between citizens of different States; between citizens claiming grants under different States; between a State and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, why some, at least, of these cases should not have been left to the cognizance of the State courts. In respect to the other enumerated cases—the cases arising under the Constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction—reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive legislation.[297]

From the principle here given it may be deduced that cases or controversies in State courts are removable from them into federal courts if the case or controversy involves the Constitution, a treaty or an act of Congress.[298]

But a prisoner in custody under the authority of a State should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of _habeas corpus_, in advance of any proceedings in the courts of the State to test the validity of his arrest or detention.[299]

119. A federal court sitting within a State is a court of that State within the meaning of the Constitution and laws of the Union, “and as such, has an equal right with the State courts to fix the construction of the local law.”[300] A State tribunal’s decision must conform to that of the Supreme Court of the United States, but a federal court sitting within a State follows the highest State tribunal unless the decision of that tribunal has been set aside by the Supreme Court. Such procedure “tends to preserve harmony in the exercise of the judicial power, in the State and federal tribunals.” This means that the statute law of a State,—and a fixed and received construction by a State in its own courts, makes a part of the statute law,—is accepted by the federal courts sitting in the State. But the federal court there is not bound to follow such State precedents and authorities; the court possesses a jurisdiction independent of that conferred by State authority.[301] Thus it may be stated as accepted American constitutional law that where there are two co-ordinate jurisdictions, and especially “with regard to the law of real estate and the construction of State constitutions and statutes” and where are concerned “the doctrines of commercial law and general jurisprudence” the federal courts sitting in a State exercise their own judgment, “but even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the State courts, if the question seems to them balanced with doubt.”[302]

To the extent that a federal court sitting within a State follows State laws and decisions, to that extent is there a common law of the United States. There is, however, no national common or customary law of the United States; its law is statutory. But the interpretation of the Constitution by the judicial power of the United States

is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of (the Supreme) Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority.[303]

NOTE: For an account of acts of Congress declared unconstitutional by the Supreme Court see _The Supreme Court and Unconstitutional Legislation_, B. F. Moore, Columbia University Studies, vol. liv., No. 2, 1913.