Chapter LIX: Section 3: Treason against the United States, shall consist (2)

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).