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Judicial Settlement of Controversies Between States of the American


Cases Decided in the Supreme Court of the United States. Collected

and edited by James Brown Scott. 2 Vols. New York: Ox

ford University Press (American Branch). 1918. pp. 1775. An Analysis of the Cases Decided in the Supreme Court of the United

States. By James Brown Scott. Oxford: Clarendon Press. 1919. pp. 548.

The Carnegie Endowment for International Peace has recently issued three volumes which have for their purpose to show that in the experience of the Supreme Court of the United States there is presented evidence of the practicability of establishing a forum for the adjudication, by regular processes of law, of controversies between nations of a justiciable character; and that most, if not all, controversies primarily of a political character may, by formal agreements, be rendered justiciable. In two of these volumes there are given, in extenso, the official reports of the cases (opinions of the court and abstracts of the briefs of counsel) decided by the court in the exercise of its jurisdiction over suits between the States of the Union. In truth, the collection is broader than this, for, in order to give a constitutional setting to the status and jurisdiction of the court, cases are included dealing with the nature of the American Union and the extent of the federal judicial power. Also the editor has added a considerable number of explanatory footnotes. It is to be regretted, however, that no index is supplied, nor is there even an alphabetical list of cases. The cases are grouped, according to their significance, under the following heads: (1) The United States and Territories composing the American Union; the subtitles being, The States Prior to the Constitution; The Union and the States Under the Constitution, and The United States and Territories of the Union. (2) The Nature and Extent of Judicial Power of the Constitution and its Relation to the Legislative and Executive Power of the United States. The subtitles under this head are: Definition of Judicial Power; Judicial Control over the Constitutionality of Legislative Acts; Distinction between Judicial and Political Power; The Process by which Political become Justiciable Questions; and the Relation between Federal and State Judiciary. (3) The Nature of a Case, Controversy, or Suit. (4) Law and Equity; Admiralty and Maritime Jurisdiction; International Law. The subtitles are: Federal Jurisdiction over Crime; Definition of Common Law and Equity; Definition of Admiralty and Maritime Jurisdiction ; Definition of International Law. (5) Immunity of Nations and of States from Suit. (6) Suits by Individuals Against States. Somewhat more than one-half of the first volume is taken up by the cases upon these preliminary or collateral points. The seventh group of cases, dealing with controversies between the States of the Union, occupies the remainder of the first and all of the second volume.

In the third volume Dr. Scott has furnished an analysis of the cases the texts of the opinions of which are included in the first two volumes.

Of the usefulness of these volumes to international jurists there can be no doubt. It is not unlikely, however, that the two volumes of texts will prove of more value to scholars in foreign countries than they will within the United States, for in this country complete sets of the two hundred and fifty volumes of the reports of the Supreme Court, elaborately annotated and digested, are readily available in every city of any considerable size, and indeed, are to be found in the private libraries of many lawyers, and it is not to be presumed that an American scholar will be content to use other than these complete and annotated sets. But, outside of the United States, collections of the “United States Reports” are very rare indeed, and therefore these volumes will be a boon to foreign scholars and all statesmen interested in the great problem of securing a peaceful settlement, by judicial process, of controversies between nations which their respective chancellaries are not able to compose.

Another great Anglo-Saxon tribunal exercising a jurisdiction comparable, in many respects, to that of the United States Supreme Court, is the Judicial Committee of the Privy Council of Great Britain. When one considers the character of the British Empire, with its constituent bodies politic ranging in status all the way from Crown Colonies and naval stations to great Dominions with such autonomous powers as to be all but sovereign, it is seen that the Judicial Committee, sitting as it does as the final court of appeal for the outlying parts of the Empire, must have been led to declare and develop doctrines of law and modes of judicial procedure that, by analogy, would be applicable to controversies between wholly sovereign states, whether or not united in a formally organized league of nations. Complete sets of these “Appeal Cases'' are scarcely more numerous outside of Great Britain and her Dominions than are the “United States Reports” outside of America. It is to be hoped, therefore, that the Carnegie Endowment, or some other foundation, will be led to select and publish the decisions of the Privy Council (as well as of the other British courts) rendered in those cases in which are applied doctrines of law and rules of procedure applicable to controversies between sovereign or quasi-sovereign bodies politic.

Turning now to an examination of the analysis which Dr. Scott has made of the American cases, and especially to the conclusions which he has drawn, it would appear, in the opinion of the present writer, that he has sought to push too far the argument that the results that have been achieved furnish strong evidence, if not actual proof, that a similar tribunal would function efficiently for the adjudication of justiciable disputes between the nations of the world. In a manner that does not seem warranted by now generally accepted views regarding the juristic nature of the American Federal State, Dr. Scott, at every possible point, emphasizes the confederate, as distinguished from the national, character of the American Union. At best he ascribes to the Union no sovereign status superior to that of its constituent States, and, in many places, he places it upon a plane superior to them,describing it, as he does, merely as the agent of the States. Thus he praises the dissenting opinion of Mr. Justice Iredell in Chisholm v. Georgia, and expresses surprise that the majority justices could have convinced themselves that it was proper to follow the literal wording of the Constitution and entertain a suit brought against one of the States of the Union by a citizen of one of the other States. He views the adoption of the Eleventh Amendment as the declaration of the American people, not simply that henceforth such a suit should not be brought, but that the court has been wrong in holding, prior to the amendment, that it might be prosecuted. And he is of opinion that the Supreme Court in a later case, Hans v. Louisiana, confessed that it had erred in the earlier case. Mr. Justice Bradley did, indeed, in Hans v. Louisiana, express concurrence in the views of Mr. Justice Iredell in the Chisholm case, but, in a still later case, South Dakota v. North Carolina, Mr. Justice Brewer, speaking for the court, pointed out that such an expression could not be considered as a judgment of the court for that question was not then before the court. And in Cohens v. Virginia, we have the explicit assertion of Chief Justice Marshall, also obiter, that the motive of the Eleventh Amendment "was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation,” but that the purpose had been the more material one of removing the apprehension that the States might be sued in the federal courts for payment of the heavy debts which all of them then owed.

The following comment of Dr. Scott upon the Chisholm case sufficiently represents his point of view. He says:

If the opinion of the majority had prevailed, the Supreme Court would not have been the model for an international tribunal, although it might have been the model for a national tribunal. The (Eleventh] Amendment shows that the people of that day regarded their States as more than inferior bodies politic, that they were sovereign and to be considered as sovereign in the reserved powers, and that they were only deprived of the rights which they expressly granted to their agent, the general government, or which followed by necessary implication, or the exercise of which they specifically, or by necessary implication, renounced. If the opinion of the majority had prevailed, the United States would have been a nation with a single sovereignty. There would not have been a separation of sovereign powers, some lodged with the agent to be exercised for the benefit of the United States, and others reserved for the States for their individual benefit, each, as the great Chief Justice Marshall has said, being sovereign within its appropriate sphere and neither so within the sphere of the other.

It is indeed surprising to find, at this date, such a constitutional doctrine and such a political theory as is thus stated. As a matter of political theory, the present writer had supposed that the doctrine of a truly divided sovereignty had been relegated to the limbo of logical as well as of practicable impossibilities. Dr. Scott, is, of course, well aware that whenever the so-called reserved powers of the States have come into conflict with the constitutional powers of the nation, the States have had to yield. By the twenty-fifth section of the Judiciary Act, adopted by Congress at its very first session, it was provided that in cases in which a federal right, privilege or immunity was set up in a case in a State court, and the decision of the highest State court to which the case might be carried was adverse to such claim, a writ of error should lie to the Supreme Court of the United States, thus giving to the United States, through its own tribunal, the final decision as to what these rights, privileges or immunities might be. In McCulloch v. Maryland, it is well known, it was held that a State, in the exercise of its general taxing power, might not interfere with the operation of a federal agency that, at the most, was only a convenience to the general government and for the constitutionality of the establishment of which reliance had to be had upon a very loose construction of the provision of the Constitution giving to the national government the right to exercise powers "necessary and proper” for carrying into effect the powers expressly given. When the States seek to prosecute federal revenue officers for acts claimed by them to be a legitimate exercise of their federal authority, the right exists to remove the case at once into a federal court for determination. State officials have been repeatedly enjoined by federal courts from executing State laws which have been deemed to violate rights secured by the national Constitution. And, in general, with regard to those matters which are subject to so-called "concurrent" control by the States and the United States, it is established doctrine that State laws must yield to national legislation, and that when Congress has shown an intention to cover the whole ground, the States may not legislate at all.

These are but some of the well-established constitutional doctrines of the Supreme Court which show how impossible it is, with show of reason, to maintain that, under the American constitutional system, the real sovereignty is not lodged in the nation but is divided between it and the States; much less to maintain that the United States does not exercise its powers as its own and in its own behalf but only as the agent of the confederated States.

In his solicitude to exhibit the United States Supreme Court as an international tribunal, or, at any rate, as a prototype of such a court, Dr. Scott seems willing to go so far as to assert, as an historical proposition, that the establishment of the Union in place of the old association under the Articles of Confederation was mainly motived by the desire to obtain a court competent to decide controversies between the States. “The judiciary," he says, “was considered the most important branch of the Government of the Union," and he is not disturbed by the circumstance that during the first years under the new government Colonel Harrison declined appointment upon the federal supreme bench because he preferred the chancellorship of the State of Maryland ; that John Rutledge, after serving a few months, resigned as associate justice of the Supreme Court to accept the chief justiceship of South Carolina, and that John Jay resigned the chief justice

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