of this debt due by West Virginia in accordance with the obligations of the contract.67

This case is especially noteworthy because the bonds were largely held by private individuals who had already exempted Virginia from paying their claims, because a large part of the judgment was for interest on the bonds, and because it was conceded that the judgment could not be paid without the exercise of the power of taxation. West Virginia has passed a debt settlement bill (1919) in which she provides for direct taxes to meet the debt. But for a time it looked as if some form of compulsion would be necessary. The court did not hesitate to meet this possibility squarely. It recognized a threefold obligation to carry out the judgment of the court: (1) the duty of West Virginia to provide for the debt by appropriate taxation; (2) the power and the duty of Congress to make provision for enforcing the terms of the contract between the two States, either by legislation which should apply to West Virginia directly, or by legislation which would give the court direct authority to enforce its judgment; (3) the duty of the court to secure the enforcement of its own judgment under existing legislation. In the hope that one of the first two methods would be used, the court did not consider fully the methods by which it might carry out its own decree, but it suggested that this might be done either by mandamus to the legislature of West Virginia, or perhaps even by the direct exercise of the judicial power within the limits of the State. Happily, the action of West Virginia has cut the Gordian knot and relieved the court from what would certainly have been a trying and embarrassing situation. But the fact that the Supreme Court has never been compelled to resort to force in its inter-state decrees, does not lessen the significance of a decision in which it claimed both for Congress and for itself such sweeping powers. When we compare the Supreme Court with the Privy Council in this respect, and especially when we compare the dicta of a Southern Chief Justice with those of his predecessor from Maryland, it is evident that the United States has become a nation, while the British Empire has become a group of independent States.

67 246 U. S. 565.

The Supreme Court has today behind its decrees the full force of national unity. It is a long cry from Kentucky v. Denison to Virginia v. West Virginia.68

IX. THE JURISDICTION AND PROCEDURE OF THE SUPREME COURT

(1) The original jurisdiction of the Supreme Court cannot be enlarged either by the court itself or by Congress,69 although, curiously enough, a part of it has been given from the earliest times to inferior courts.70 But, on account of the weight and dignity of the questions involved, it seems safe to say that the quasi-international jurisdiction of the Supreme Court could never be assigned to any lower court.71

(2) The word "State" is to be interpreted strictly, and does not include such political communities as Indian tribes, territories, or the District of Columbia.72

(3) The authority of the court in the class of cases which we are considering is derived directly from the Constitution. This was a matter of considerable doubt in the early cases, but in all the recent decisions it has come to be assumed that the original jurisdiction of the court is not dependent on any Act of Congress for its existence, though Congress may define the procedure to be followed, and the methods to be used in enforcing the decrees of the court. In the absence of specific legislation by Congress, the court may exercise its original jurisdiction in such a fashion as to promote simplicity of procedure and real justice. "An omission to legislate could not deprive the court of the jurisdiction conferred." 73

(4) A State may be sued without its own consent, and if the

68 246 U. S. 565.

69 United States v. Yale Todd, 13 Howard 52, note; Marbury v. Madison, 1 Cranch 137; Florida v. Georgia, 17 Howard 504.

70 111 U. S. 449, 123 U. S. 32; 4 Blatchf. 50.

71 220 U. S. 27.

721 Wash. Terr. 269, 5 Peters 1, 2 Cranch 445.

78 17 Howard 478, 143 U. S. 621, 162 U. S. 1. No one has stated the principle of the independence of the original jurisdiction of the court more clearly than Taney in Kentucky v. Denison: "In all cases where original jurisdiction is given by the Constitution, this court has authority to exercise it without any further Act of Congress to regulate its process or confer jurisdiction." 24 Howard 98.

defendant State does not appear, a subpœna is issued against it for its appearance. If the State does not appear, the suit will proceed against it ex parte. No coercive measures are used against it to compel its appearance, although in the case of New Jersey v. New York the subpoena was issued with a small monetary penalty in case of failure to appear."

(5) The procedure is that of a court of chancery used in a liberal spirit to suit the circumstances of the case.75 Costs in boundary disputes are ordinarily divided between the contesting States, unless the plaintiff is clearly in the wrong. Commissioners are frequently appointed to apply the legal principles in the determination of an exact boundary.

(6) A State may appear not only when its own property is directly involved, but also as the representative of its citizens, in its sovereign capacity, as parens patriæ. But when this is done the interests of a large general body of citizens must be involved. The State may not replace a few individuals as the plaintiff in a case in such a fashion as to evade the Eleventh Amendment. The interests of the State as a political community must be really involved." 74 New Jersey v. New York, 3 Peters 465-6.

75 Rhode Island v. Massachusetts, 14 Peters 210.

76 This question of the right of a State to sue in a controversy over lands when it did not own the property involved arose in the earliest cases. Fowler v. Miller (1799), 3 Dallas 411, was the first case involving the jurisdiction of the Supreme Court in interstate disputes. Fowler claimed land under a Connecticut grant in a region also claimed by New York. New York tried to remove the case from the Circuit to the Supreme Court on the ground that it was virtually a suit between States subject to the exclusive jurisdiction of the higher court, and because she said that a fair trial could not be secured in the Circuit Court for the District of Connecticut. This application was denied, the court distinguishing between claims of private individuals like Fowler and the claims of States to the territory in question. The States were not regarded as either nominally or substantially parties to the suit. But in the course of his opinion Mr. Justice Washington gave the following significant hint: "The State of New York might, I think, file a bill against the State of Connecticut, praying to be quieted as to the boundaries of the disputed territory; and this court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries."

Acting on this wise hint, a suit was brought at the next term of the court by New York against Connecticut, in which the plaintiff State sought to prevent Connecticut or Fowler by injunction from claiming the lands in question. The

X. SUBSTANTIVE RULES OF LAW IN INTERSTATE CASES

The full significance of this great series of twenty-nine cases is well stated by Mr. Justice Brewer in the case of Kansas v. Colorado:

Whenever the action of one State reaches through the agency of natural laws into the territory of another State, the question of the Attorney General of New York cited Penn v. Lord Baltimore, and argued very convincingly that this was precisely the kind of a case in which the Constitution expected the Supreme Court to assume jurisdiction. "The bill," he said, "is emphatically a bill of peace; since, considering the parties to the principal controversy, without this remedy the consequences upon the public tranquillity can hardly be conjectured." This line of reasoning appealed strongly to Justice Patterson, who said: "If the grantees of New York are thus evicted, they will bring suits in New York on their possession. But where will this feud and litigation end? It is difficult and painful to conjecture, unless this court can, under the Constitution, lay hold of the case to decide the question of boundary, which will be the decision of all the appendages and consequences." But in spite of the evident weight of these contentions, the court was evidently afraid to assume the necessary jurisdiction, and decided that New York was not a party to the suit since she did not directly own the land in question. (New York v. Connecticut, 4 Dallas 1.)

The result of this early failure was to throw the States back on voluntary agreements, and to reduce the quasi-international jurisdiction of the Supreme Court to a nullity. More than thirty years passed before it first assumed jurisdiction in a boundary dispute, in the case of New Jersey v. New York, 5 Peters 284. It was left to the bold genius of John Marshall to assume this great constitutional power, as he had earlier in his career assumed the power to declare the laws of Congress unconstitutional. Marshall said in this case that, although Congress had passed no act for the special purpose of prescribing the mode of procedure in suits instituted against a State, the court might exercise its original jurisdiction "under the authority conferred by Congress and the existing Acts of Congress."

New Jersey v. New York was never pushed to a conclusion, so that the case of Rhode Island v. Massachusetts (12 Peters 657), decided in 1838, is the first in which the Supreme Court actually settled a controversy between two States. The most grave objection against the jurisdiction of the court was that the question of boundary was a political question in which the court would be unable to enforce its decree. This argument was urged with great force by Daniel Webster in behalf of Massachusetts, but did not convince the majority of the court, which assumed full jurisdiction, in spite of the dissent of Chief Justice Taney. These two cases laid at rest any question as to the ability of the court to settle controversies regarding boundaries, even when State property is not directly involved. Since that time, as we have seen, the Supreme Court has frequently recognized that the State "has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain." (Justice Holmes in Georgia v. Tennessee Copper Co. (1907), 206 U. S. 230.)

extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions, this court is practically building up what may not improperly be called interstate common law."

In the light of this dictum, what principles, either taken from other branches of the law or created by the exigencies of new situations, have become parts of this interstate common law in the United States? From an examination of the controversies which we have reviewed, a few great substantive rules appear to have gained this new dignity, and may be at least tentatively stated as established principles of interstate law:

(1) Long acquiescence in a given boundary establishes a valid title by usage and prescription which may not be disturbed later on technical grounds. The length of time necessary to complete this process varies in different cases, but in general it may be said that no title may be easily questioned on technical grounds after important private rights exist under it which would be disturbed by a change of sovereignty.78

(2) Although States may not enter into compacts with one another without the consent of Congress, consent may be implied as well as express, and the consent of Congress may give validity to a compact long after the compact has been made. Such compacts will be regarded as binding."

(3) Compacts between States do not limit the powers of Congress. Thus a previous compact between two States does not change the full right of Congress to regulate commerce on navigable streams.80

77 Kansas v. Colorado, 206 U. S. 98.

78 "When a line has been once run and has afterwards been acquiesced in for a long number of years by two States, the court will establish it, although it varies from the original course in the charter, and although it may not be a straight or uniform line.” (Maryland v. West Virginia, 217 U. S. 19.)

79 Constitution of the United States, Art. I, Sec. 10; Virginia v. West Virginia, 11 Wallace 39; Virginia v. Tennessee, 148 U. S. 503.

80 South Carolina v. Georgia, 93 U. S. 4.