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

[542] Lane _v._ Vick, 3 How. 464 (1845); Williamson _v._ Berry, 8 How. 495 (1850); Gelpcke _v._ Dubuque, 1 Wall. 175 (1864).

[543] 149 U.S. 308, 401-404 (1893).

[544] 215 U.S. 349, 370 (1910).

[545] 276 U.S. 518 (1928).

[546] Ibid. 533. Justice Holmes was influenced in part by the article of Charles Warren, New Light On The History Of The Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-88 (1923), in which Mr. Warren produced evidence to show that Justice Story's interpretation in the Tyson Case was contrary to the intention of the framers of the act. Mr. Warren did not, however, contend that the Tyson rule was unconstitutional. Justice Holmes was joined in his dissent by Justices Brandeis and Stone. In addition to judicial dissatisfaction with the Tyson rule as manifested in dissents, disapproval in Congressional quarters resulted in bills by Senators Walsh and Norris in the 70th and 71st Congresses, S. 3151, 70th Cong., 1st. sess., S. Rept. 626 of Committee on the Judiciary, March 27, 1928; S. 4357, 70th Cong., 2d. sess., S. Rept. 691, Committee on the Judiciary, May 20, 1930; S. 4333, 70th Cong., 1st. sess.; S. 96, 71st Cong., 1st. sess.

[547] 293 U.S. 335 (1934).

[548] This concept was first used by Justice Bradley in Burgess _v._ Seligman, 107 U.S. 21 (1883).

[549] 293 U.S. 335, 339.

[550] 304 U.S. 64 (1938).

[551] 304 U.S. 64, 69-70, 77-78.

[552] Ibid. 79-80.

[553] 304 U.S. 64, 80-90.

[554] Ibid. 90, 91-92.

[555] 311 U.S. 223 (1940).

[556] 311 U.S. 169 (1940). This decision has been thoroughly criticized by Arthur L. Corbin in The Laws of the Several States, 50 Yale L.J. 762 (1941). _See also_ Mitchell Wendell, Relations Between Federal and State Courts (New York, 1949), 209-223. This book contains a good account of the operation of the Tyson and Tompkins rules, pp. 113-247.

[557] 333 U.S. 153 (1948). For other cases applying the rule that decisions of State intermediate courts are binding unless there is convincing evidence that the State law is otherwise, _see_ Six Companies of California _v._ Highway Dist., 311 U.S. 180 (1940); Stoner _v._ New York Life Ins. Co., 311 U.S. 464 (1940).

[558] Vandenbark _v._ Owens-Illinois Co., 311 U.S. 538 (1941).

[559] 28 U.S.C.A. Sec. 1652; 62 Stat. 944 (1948). In 1938, the year of the Tompkins decision, the Conformity Act of 1872 (17 Stat. 196 Sec. 5) was superseded; and from that time until the enactment of 62 Stat. 944, the federal courts were guided in diversity cases by the Federal Rules of Civil Procedure formulated by the Supreme Court by virtue of the authority delegated it, in 1934, by 48 Stat. 1064.

[560] Ruhlin _v._ New York Life Ins. Co., 304 U.S. 202 (1938).

[561] 326 U.S. 99 (1945).

[562] Ibid. 108-109.

[563] Ibid. 109. Justice Rutledge wrote a dissent in which Justice Murphy concurred. Justice Rutledge objected to the rigid application of a statute of limitations to suits in equity and to the implication that Congress could not authorize federal courts to administer equitable relief in accordance with the substantive rights of the parties, notwithstanding State statutes of limitations barring such suits in State courts. In his view, if any change were to be made, it was for Congress and not the Court to make it. In line with this ruling _see_ Ragan _v._ Merchants Transfer & W. Co., 337 U.S. 530 (1949); _also_ Cohen _v._ Beneficial Industrial Loan Corp., 337 U.S. 541, 555 (1949).

[564] 2 Story, Commentaries, 467 Sec. 1696 (2d. ed., 1851).

[565] An interesting case which reached the Supreme Court under this clause was Pawlet _v._ Clark, 9 Cr. 292 (1815). In his opinion for the Court, Justice Story took occasion to assert that grants of land by a State to a town could not afterwards be repealed so as to divest the town of its rights under the grant. Ibid. 326; _cf._ Trenton _v._ New Jersey, 262 U.S. 182 (1923).

[566] The Exchange _v._ McFaddon, 7 Cr. 116 (1812); Berizzi Bros. Co. _v._ S.S. Pesaro, 271 U.S. 562 (1926); Compania Espanola _v._ The Navemar, 303 U.S. 68 (1938); Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938).

[567] Principality of Monaco _v._ Mississippi, 292 U.S. 313, 330 (1934).

[568] Ibid.

[569] The "Sapphire," 11 Wall. 164, 167 (1871).

[570] Ibid. 167. This case also held that a change in the person of the sovereign does not affect the continuity or rights of national sovereignty, including the right to bring suit, or to continue one that has been brought.

[571] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938); citing Jones _v._ United States, 137 U.S. 202, 212 (1890); Matter of Lehigh Valley R. Co., 265 U.S. 573 (1924). Whether a government is to be regarded as the legal representative of a foreign State is, of course, a political question.

[572] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 134 (1938); citing United States _v._ The Thekla, 266 U.S. 328, 340, 341 (1924); United States _v._ Stinson, 197 U.S. 200, 205 (1905); The Davis, 10 Wall. 15 (1870); The Siren, 7 Wall. 152, 159 (1869). _See also_ Ex parte Republic of Colombia, 195 U.S. 604 (1904).

[573] Guaranty Trust Co. _v._ United States, 304 U.S. 126, 137 (1938). Among other benefits which the Court cites as not extending to foreign States as litigants include exemption from costs and from giving discovery. Decisions are also cited to the effect that a sovereign plaintiff "should so far as the thing can be done, be put in the same position as a body corporate." Ibid, note 2, pp. 134-135.

[574] 5 Pet. 1, 16-20 (1831).

[575] Hodgson & Thompson _v._ Bowerbank, 5 Cr. 303 (1809).

[576] Jackson _v._ Twentyman, 2 Pet. 136 (1829).

[577] Susquehanna & Wyoming V.R. & C. Co. _v._ Blatchford, 11 Wall. 172 (1871). _See_, however, Lacassagne _v._ Chapuis, 144 U.S. 119 (1892), which held that a lower federal court had jurisdiction over a proceeding to impeach its former decree, although the parties were new and were both aliens.

[578] Browne _v._ Strode, 5 Cr. 303 (1809).

[579] 2 Dall. 419 (1793). For an earlier case where the point of jurisdiction was not raised, _see_ Georgia _v._ Brailsford, 2 Dall. 402 (1792). For subsequent cases prior to 1861, _see_ Rhode Island _v._ Massachusetts, 12 Pet. 657 (1838); Florida _v._ Georgia, 17 How. 478 (1855).

[580] Kentucky _v._ Dennison, 24 How. 66, 98 (1861).

[581] 1 Cr. 137 (1803).

[582] Ibid. 174. _See also_ Wiscart _v._ Dauchy, 3 Dall. 321 (1796). This exclusive interpretation of article III posed temporary difficulties for Marshall in Cohens _v._ Virginia, 6 Wheat. 264 (1821), where he gave a contrary interpretation to other provisions of the Article. The exclusive interpretation as applied to original jurisdiction of the Supreme Court has been followed in Ex parte Bollman, 4 Cr. 75 (1807); New Jersey _v._ New York, 5 Pet. 284 (1831); Ex parte Barry, 2 How. 65 (1844); Ex parte Vallandigham, 1 Wall. 243, 252 (1864); and Ex parte Yerger, 8 Wall. 85, 98 (1869). In the curious case of Ex parte Levitt, Petitioner, 302 U.S. 633 (1937), the Court was asked to purge itself of Justice Black on the ground that his appointment to it violated the second clause of section 6 of Article I. Although it rejected petitioner's application, it refrained from pointing out that it was being asked to assume original jurisdiction contrary to the holding in Marbury _v._ Madison.

[583] 252 U.S. 416 (1920).

[584] 262 U.S. 447 (1923).

[585] 157 U.S. 229, 261 (1895). Here the Court refused to take jurisdiction on the ground that the City of Oakland and the Oakland Water Company, a citizen of California, were so situated that they would have to be brought into the case, which would make it then a suit between a State and citizens of another State and its own citizens. The same rule was followed in New Mexico _v._ Lane, 243 U.S. 52, 58 (1917); and in Louisiana _v._ Cummins, 314 U.S. 577 (1941). _See also_ Texas _v._ Interstate Commerce Commission, 258 U.S. 158, 163 (1922). For the original jurisdiction of the Supreme Court in specific classes of cases _see_ the discussion of suits affecting ambassadors and suits between States, _supra_, pp. 571, 591-593.

[586] Ames _v._ Kansas ex rel. Johnston, 111 U.S. 449 (1884).

[587] 127 U.S. 265 (1888).

[588] 1 Stat. 73, 80.

[589] 127 U.S. 265, 297. _Note also_ the dictum in Cohens _v._ Virginia, 6 Wheat. 264, 398-399 (1821) to the effect that "* * * the original jurisdiction of the Supreme Court, in cases where a State is a party, refers to those cases in which, according to the grant of power made in the preceding clause, jurisdiction might be exercised in consequence of the character of the party, and an original suit might be instituted in any of the federal courts; not to those cases in which an original suit might not be instituted in a federal court. Of the last description, is every case between a State and its citizens, and, perhaps every case in which a State is enforcing its penal laws. In such cases, therefore, the Supreme Court cannot take original jurisdiction."

[590] Ohio ex rel. Popovici _v._ Agler, 280 U.S. 379 (1930).

[591] 3 Dall. 321 (1796). Justice Wilson dissented from this holding and contended that the appellate jurisdiction, as being derived from the Constitution, could be exercised without an act of Congress or until Congress made exceptions to it.

[592] Durousseau _v._ United States, 6 Cr. 307 (1810).

[593] 6 Wall. 318 (1868); 7 Wall. 506 (1869).

[594] 15 Stat. 44 (1868).

[595] 7 Wall. 506, 514. The Court also took occasion to reiterate the rule that an affirmation of appellate jurisdiction is a negative of all other and stated that as a result acts of Congress providing for the exercise of jurisdiction had "come to be spoken of as acts granting jurisdiction, and not as acts making exceptions to * * * it." It continued grandly: "* * * judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer." Ibid. 513, 515.

[596] _See_ especially the parallel case of Ex parte Yerger, 8 Wall. 85 (1869). For cases following Ex parte McCardle, _see_ Railroad Co. _v._ Grant, 98 U.S. 398, 491 (1878); Kurtz _v._ Moffitt, 115 U.S. 487, 497 (1885); Cross _v._ Burke, 146 U.S. 82, 86 (1892); Missouri _v._ Missouri Pacific R. Co., 292 U.S. 13, 15 (1934); Stephan _v._ United States, 319 U.S. 423, 426 (1943). _See also_ United States _v._ Bitty, 208 U.S. 393, 399-400 (1908), where it was held that there is no right to appeal to the Supreme Court except as an act of Congress confers it.

[597] 105 U.S. 381 (1882).

[598] Ibid. 386. _See also_ Barry _v._ Mercein, 5 How. 103, 119 (1847); National Exchange Bank _v._ Peters, 144 U.S. 570 (1892); American Construction Co. _v._ Jacksonville T. & K.W.R. Co., 148 U.S. 372 (1893); Colorado Central Consol. Min. Co. _v._ Turck, 150 U.S. 138 (1893); St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281 (1908); Luckenbach S.S. Co. _v._ United States, 272 U.S. 533 (1926).

[599] 1 Wheat. 304 (1816).

[600] Ibid. 374.

[601] Ibid. 331. This recognition, however, is followed by the statement that "the whole judicial power of the United States should be at all times, vested either in an original or appellate form, in some courts created under its authority."

[602] 2 Commentaries, Sec. 1590-1595.

[603] 1 Stat. 73, Sec. 9-11.

[604] Ibid.

[605] Ibid. Sec. 14, 15, 17, 18.

[606] Ibid. Sec. 16.

[607] Dall. 8 (1799).

[608] Ibid. 9.

[609] Ex parte Bollman, 4 Cr. 75, 93 (1807). Two years later Chief Justice Marshall in Bank of United States _v._ Deveaux, 5 Cr. 61 (1809), held for the Court that the right to sue does not imply a right to sue in a federal court unless conferred expressly by an act of Congress.

[610] 7 Cr. 32 (1812).

[611] Ibid. 33.

[612] Ibid.

[613] 12 Pet. 657, 721-722 (1838).

[614] 3 How. 236 (1845).

[615] Ibid. 244-245. To these sweeping assertions of legislative supremacy Justices Story and McLean took vigorous exception. They denied the authority of Congress to deprive the courts of power and vest it in an executive official because "the right to construe the laws in all matters of controversy is of the very essence of judicial power." In their view the act as interpreted violated the principle of the separation of powers, impaired the independence of the judiciary, and merged the executive and judicial department. Dissent of Justice McLean, pp. 264 and following.

[616] 8 How. 441 (1850).

[617] Ibid. 449.

[618] Rice _v._ M. & N.W.R. Co., 1 Bl. 358, 374 (1862); Mayor of Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868); United States _v._ Eckford, 6 Wall. 484, 488 (1868); Ex parte Yerger, 8 Wall. 85, 104 (1868); case of the Sewing Machine Companies, 18 Wall. 553, 557-558 (1874); Morgan _v._ Gay, 19 Wall. 81, 83 (1874); Gaines _v._ Fuentes, 92 U.S. 10, 18 (1876); Jones _v._ United States, 137 U.S. 202, 211 (1890); Holmes _v._ Goldsmith, 147 U.S. 150, 158 (1893); Johnson Steel Street Rail Co. _v._ Wharton, 152 U.S. 252, 260 (1894); Plaquemines Tropical Fruit Co. _v._ Henderson, 170 U.S. 511, 513-521 (1898); Stevenson _v._ Fain, 195 U.S. 165, 167 (1904); Kentucky _v._ Powers, 201 U.S. 1, 24 (1906); Venner _v._ Great Northern R. Co., 209 U.S. 24, 35 (1908); Ladew _v._ Tennessee Copper Co., 218 U.S. 357, 358 (1910); Kline _v._ Burke Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); Federal Power Commission _v._ Pacific Power & Light Co., 307 U.S. 156 (1939).

[619] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 251-252 (1868). The rule of Cary _v._ Curtis and Sheldon _v._ Sill was restated with emphasis many years later in Kline _v._ Burke Construction Co., 260 U.S. 226, 233-234 (1922), where Justice Sutherland, speaking for the Court, proceeded to say to article III, Sec. 1 and 2: "The effect of these provisions is not to vest jurisdiction in the inferior courts over the designated cases and controversies but to delimit those in respect of which Congress may confer jurisdiction upon such courts as it creates. Only the original jurisdiction of the Supreme Court is derived directly from the Constitution. Every other court created by the general government derives its jurisdiction wholly from the authority of Congress. That body may give, withhold or restrict such jurisdiction at its discretion, provided it be not extended beyond the boundaries fixed by the Constitution. * * * The Constitution simply gives to the inferior courts the capacity to take jurisdiction in the enumerated cases, but it requires an act of Congress to confer it. * * * And the jurisdiction having been conferred may, at the will of Congress, be taken away in whole or in part; and if withdrawn without a saving clause all pending cases though cognizable when commenced must fall."

[620] 56 Stat. 23 (1942).

[621] 319 U.S. 182 (1943).

[622] 321 U.S. 414 (1944).

[623] Ibid. 468.

[624] _See infra_, pp. 515-528.

[625] 26 U.S.C.A. 3653.

[626] _See_ for example Snyder _v._ Marks, 109 U.S. 189 (1883); Cheatham _v._ United States, 92 U.S. 85 (1875); Shelton _v._ Platt, 139 U.S. 591 (1891); Pacific Steam Whaling Co. _v._ United States, 187 U.S. 447 (1903); Dodge _v._ Osborn, 240 U.S. 118 (1916).

[627] Dodge _v._ Brady, 240 U.S. 122, 126 (1916).

[628] Hill _v._ Wallace, 259 U.S. 44 (1922); Lipke _v._ Lederer, 259 U.S. 557 (1922); Miller _v._ Standard Nut Margarine Co., 284 U.S. 498, 509 (1932).

[629] Enjoining the Assessment and Collection of Federal Taxes Despite Statutory Prohibition, 49 Harv. L. Rev. 109 (1935).

[630] Allen _v._ Regents of University System of Georgia, 304 U.S. 439, 445-449 (1938).

[631] 47 Stat. 70 (1932).

[632] Lauf _v._ E.G. Shinner & Co., 303 U.S. 323 (1938); New Negro Alliance _v._ Sanitary Grocery Co., 303 U.S. 552. 562-563 (1838); Milk Wagon Drivers' Union _v._ Lake Valley Farm Products Co., 311 U.S. 91, 100-103 (1940).

[633] 330 U.S. 258 (1947). Virginian R. Co. _v._ System Federation No. 40, 300 U.S. 515 (1937), in some ways constitutes an exception to section 9 of the statute by sustaining a mandatory injunction issued against an employer on the petition of employees on the ground that the prohibition of section 9 does not include mandatory injunctions, but "blanket injunctions which are usually prohibitory in form." For other acts of Congress limiting the power of the federal courts to issue injunctions _see infra_, pp. 523-525.

[634] 1 Wheat. 304 (1816).

[635] 18 How. 272 (1856).

[636] 285 U.S. 22 (1932).

[637] Ibid 56-57. _Cf._, however, Shields _v._ Utah, Idaho R. Co., 305 U.S. 185 (1938).

[638] Mayor of Nashville _v._ Cooper, 6 Wall. 247, 252 (1868); Kline _v._ Burke Construction Co., 260 U.S. 226, 233, 234 (1922). _See also_ Hodgson _v._ Bowerbank, 5 Cr. 303, 304 (1809) where Chief Justice Marshall disposed of the effort of British subjects to docket a case in a circuit court, saying, "turn to the article of the Constitution of the United States, for the statute cannot extend the jurisdiction beyond the limits of the Constitution."

[639] Hayburn's Case, 2 Dall. 409 (1792).

[640] United States _v._ Ferriera, 13 How. 40 (1852); Gordon _v._ United States, 117 U.S. 697 (1864); Muskrat _v._ United States, 219 U.S. 346 (1911).

[641] In addition to the cases cited in note 3[Transcriber's Note: Reference is to footnote 640 above.], _see_ Chicago & S. Air Lines _v._ Waterman S.S. Corp., 333 U.S. 103, 113-114 (1948).

[642] In addition to the cases cited in notes 2, 3, and 4[Transcriber's Note: Reference is to footnotes 639, 640, and 641 above.] _see_ Federal Radio Commission _v._ General Electric Co., 281 U.S. 464, 469 (1930); Postum Cereal Co. _v._ California Fig Nut Co., 272 U.S. 693 (1927); Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923). _See also_ the dissenting opinion of Justice Rutledge in Yakus _v._ United States, 321 U.S. 414, 468 (1944).

[643] Tutun _v._ United States, 270 U.S. 568 (1926), where the Court held that the United States is always a possible adverse party to a naturalization petition.

[644] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893), where the Court sustained an act of Congress requiring the registration of Chinese and creating agencies for the expulsion of aliens unlawfully within the country and for the issuance of certificates to those entitled to remain. The act provided for special proceedings in such cases and prescribed the evidence the courts were to receive and the weight to be attached to it. The procedure was held to contain all the elements of a case--"a complainant, a defendant, and a judge--_actor_, _reus_, _et judex_." pp. 728-729.

[645] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423 (1899). Here the Court sustained an act of Congress which directed the Attorney General to bring a suit on behalf of the United States against the appellants to determine whether an award made by an international claims commission was obtained by fraud. The Court of Claims was vested with full jurisdiction with appeal to the Supreme Court to hear the case, decide it, to issue all proper decrees therein, and to enforce them by injunction. The Court regarded the money received by the United States from Mexico as property of the United States. This together with the interest of Congress in national honor in dealing with Mexico was sufficient to enable it to authorize a suit for the decision of a question "peculiarly judicial in nature." pp. 458-459.

[646] Southern Pacific Co. _v._ Jensen, 244 U.S. 205 (1917).

[647] Taylor _v._ Carryl, 20 How. 583 (1858).

[648] 1 Wheat. 304 (1816).

[649] 6 Wheat. 264 (1821).

[650] 21 How. 506 (1859).

[651] For a full account of this episode _see_ Warren, Supreme Court in United States History, II, 193-194. _See also_ Baldwin, The American Judiciary, 163.

[652] 6 Pet. 515, 596 (1832). _See also_ Warren, Supreme Court in United States History, II, 213; and Baldwin, _op. cit._, 164. It was Worcester _v._ Georgia which allegedly provoked the probably apocryphal comment attributed to President Jackson, "'Well, John Marshall has made his decision, now let him enforce it.'" 2 Warren, Ibid. 219.

[653] Mast, Foos & Co. _v._ Stover Mfg. Co., 177 U.S. 485 (1900).

[654] Covell _v._ Heyman, 111 U.S. 176 (1884).

[655] Riehle _v._ Margolies, 279 U.S. 218 (1929); Harkin _v._ Brundage, 276 U.S. 36 (1928); Wabash R. Co. _v._ Adelbert College, 208 U.S. 38 (1908); Harkrader _v._ Wadley, 172 U.S. 148 (1898); Central National Bank _v._ Stevens, 169 U.S. 432 (1898); Shields _v._ Coleman, 157 U.S. 168 (1895); Moran _v._ Sturges, 154 U.S. 256 (1894); Krippendorf _v._ Hyde, 110 U.S. 276 (1884); Covell _v._ Heyman, 111 U.S. 176 (1884); Watson _v._ Jones, 13 Wall. 679 (1872); Buck _v._ Colbath, 3 Wall. 334 (1866); Freeman _v._ Howe, 24 How. 450 (1861); Orton _v._ Smith, 18 How. 263 (1856); Taylor _v._ Carryl, 20 How. 583 (1858); Peck _v._ Jenness, 7 How. 612 (1849). For later cases _see_ Toucey _v._ New York Life Ins. Co., 314 U.S. 118 (1941). Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939); Brillhart _v._ Excess Ins. Co., 316 U.S. 491 (1942); Mandeville _v._ Canterbury, 318 U.S. 47 (1943); Markham _v._ Allen, 326 U.S. 490 (1946); Propper _v._ Clark, 337 U.S. 472 (1949).

[656] McKim _v._ Voorhies, 7 Cr. 279 (1812); Duncan _v._ Darst, 1 How. 301 (1843); United States ex rel. Riggs _v._ Johnson County, 6 Wall. 166 (1868); Moran _v._ Sturges, 154 U.S. 256 (1894); Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900)

[657] 6 Wall. 166 (1868).

[658] Princess Lida of Thurn & Taxis _v._ Thompson, 305 U.S. 456 (1939). This case rests on the principle of comity that where there are two suits _in rem_ or _quasi in rem_, as they were held to be here, so that the Court has possession of property which is the subject of litigation or must have control of it in order to proceed with the cause and grant the relief sought, the jurisdiction of one court must yield to that of the other. The principle, applicable to both federal and State courts, that the Court first assuming jurisdiction over property may maintain and exercise that jurisdiction to the exclusion of the other, was held not to be confined to cases where the property has actually been seized under judicial process, but applies as well to suits brought for marshalling assets, administering trusts, or liquidating estates and to suits of a similar nature, where to give effect to its jurisdiction the Court must control the property.

[659] 1 Stat. 335 (1793); 28 U.S.C.A. Sec. 2283. In the judicial code an exception is made to proceedings in bankruptcy.

[660] Diggs _v._ Wolcott, 4 Cr. 179 (1807); Orton _v._ Smith, 18 How. 263 (1856); _see_ especially Peck _v._ Jenness, 7 How. 612 (1849) where the Court held that the prohibition of the act of 1793 extended to injunction suits brought against the parties to a State court proceeding as well as to the State court itself.

[661] Freeman _v._ Howe, 24 How. 450 (1861); Julian _v._ Central Trust Co., 193 U.S. 93 (1904); Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Looney _v._ Eastern Texas R. Co., 247 U.S. 214 (1918).

[662] Farmers' Loan & Trust Co. _v._ Lake St. Elev. R. Co., 177 U.S. 51 (1900); Riverdale Cotton Mills _v._ Alabama & Georgia Mfg. Co., 198 U.S. 188 (1905); Julian _v._ Central Trust Co., 193 U.S. 93 (1904); Kline _v._ Burke Construction Co., 260 U.S. 226 (1922). For a discussion of this rule _see_ Toucey _v._ New York Life Ins. Co., 314 U.S. 118, 134-136 (1941).

[663] Ex parte Young, 209 U.S. 123 (1908), is the leading case.

[664] Arrowsmith _v._ Gleason, 129 U.S. 86 (1889); Marshall _v._ Holmes, 141 U.S. 589 (1891); Simon _v._ Southern R. Co., 236 U.S. 115 (1915).

[665] French _v._ Hay, 22 Wall. 231 (1875); Dietzsch _v._ Huidekoper, 103 U.S. 494 (1881); Madisonville Traction Co. _v._ St. Bernard Mining Co., 196 U.S. 239 (1905).

[666] The earlier cases are Root _v._ Woolworth, 150 U.S. 401 (1893); Prout _v._ Starr, 188 U.S. 537 (1903); Juilian _v._ Central Trust Co., 193 U.S. 93 (1904).

[667] 314 U.S. 118 (1941).

[668] Ibid. 133-141. Justice Reed, in a dissent in which Chief Justice Stone and Justice Roberts concurred, also reviewed the authorities.

[669] Southern Ry. Co. _v._ Painter, 314 U.S. 155 (1941).

[670] 9 Wheat. 738 (1824).

[671] 209 U.S. 123 (1908). _See also_ Smyth _v._ Ames, 169 U.S. 466 (1898); Reagan _v._ Farmers' Loan & Trust Co., 154 U.S. 362 (1894).

[672] Harkrader _v._ Wadley, 172 U.S. 148 (1898); In re Sawyer, 124 U.S. 200 (1888).

[673] Ex parte Young, 209 U.S. 123, 163 (1908).

[674] Ibid. 174. The Young case evoked sharp criticism in Congress and led to the enactment of Sec. 266 of the Judicial Code, prohibiting the issuance of injunctions to restrain enforcement of State laws by a single federal judge, providing for a three-judge court in such cases, limiting the effect of temporary injunctions, and expediting appeals in such cases to the Supreme Court. Act of June 18, 1910, 36 Stat. 539; 28 U.S.C.A. Sec. 1253, 2281, 2284. A supplementary act in 1913 (37 Stat. 1013) amended Sec. 266 of the Judicial Code providing for the stay of federal proceedings to enjoin State legislation if a suit has been brought in a State court to enforce the legislation until the State court has determined the issues. Section 266 was amended again in 1925 when the provisions concerning interlocutory injunctions were extended to include permanent injunctions. Act of February 13, 1925, 43 Stat. 938.

[675] Prentis _v._ Atlantic Coast Line R. Co., 211 U.S. 210 (1908); Gilchrist _v._ Interborough Rapid Transit Co., 279 U.S. 159 (1929); Grubb _v._ Public Utilities Commission, 281 U.S. 470 (1930); Beal _v._ Missouri Pacific R. Co., 312 U.S. 45 (1941).

[676] Phillips _v._ United States, 312 U.S. 246, 249 (1941), citing and quoting Ex parte Collins, 277 U.S. 565, 577 (1928).

[677] 312 U.S. 246, 251, citing Moore _v._ Fidelity & Deposit Co., 272 U.S. 317 (1926); Smith _v._ Wilson, 273 U.S. 388 (1927); Oklahoma Gas Co. _v._ Packing Co., 292 U.S. 386 (1934); Ex parte Williams, 277 U.S. 267 (1928); Ex parte Public National Bank, 278 U.S. 101 (1928); Rorick _v._ Commissioners, 307 U.S. 208 (1939); Ex parte Bransford, 310 U.S. 354 (1940).

[678] Warren, Federal and State Court Interference, 43 Harv. L. Rev. 345, 354 (1930).

[679] 21 How. 506 (1859).

[680] Ibid. 514-516, 523-524, 526.

[681] United States _v._ Tarble (Tarble's Case), 13 Wall. 397, 407-408 (1872).

[682] 1 Stat. 81, Sec. 14.

[683] 4 Stat. 634, Sec. 7 (1833).

[684] 5 Stat. 539 (1942).

[685] 14 Stat. 385 (1867).

[686] Rev. Stat., Sec. 753; 28 U.S.C.A. Sec. 2242.

[687] 100 U.S. 257 (1880).

[688] In re Neagle, 135 U.S. 1 (1890).

[689] In re Loney, 134 U.S. 372 (1890).

[690] Boske _v._ Comingore, 177 U.S. 459 (1900).

[691] Ohio _v._ Thomas, 173 U.S. 276 (1899).

[692] 209 U.S. 205 (1908).

[693] 117 U.S. 241 (1886).

[694] Ibid. 251.

[695] Harkrader _v._ Wadley, 172 U.S. 148 (1898); Whitten _v._ Tomlinson, 160 U.S. 231 (1895).

[696] Frank _v._ Mangum, 237 U.S. 309 (1915); Tinsley _v._ Anderson, 171 U.S. 101 (1898).

[697] Maryland _v._ Soper, 270 U.S. 9, 36, 44 (1926). In addition to the cases cited above _see_ Ex parte Fonda, 117 U.S. 516 (1886); Duncan _v._ McCall, 139 U.S. 449 (1891); New York _v._ Eno, 155. U.S. 89 (1894); Baker _v._ Grice, 169 U.S. 284 (1898); Matter of Moran, 203 U.S. 96 (1906); Mooney _v._ Holohan, 294 U.S. 103 (1935); Ex parte Hawk, 321 U.S. 114 (1944). Compare, however, Wade _v._ Mayo, 334 U.S. 672 (1948), where it was held that failure of the petitioner to appeal to the Supreme Court from a conviction sustained by the Florida Supreme Court did not bar relief by _habeas corpus_ because of denial of counsel. In Ex parte Hawk, 321 U.S. 114 (1944), the rule pertaining to the exhaustion of remedies was applied so as to include a certiorari petition in the Supreme Court. In adopting a new United States Code in 1948 (62 Stat. 967) Congress added a new section to existing _habeas corpus_ provisions which stipulated that no application for a writ of _habeas corpus_ by a person in custody pursuant to a judgment of a State court shall be granted until the applicant has exhausted the remedies available in the courts of the States and that an applicant shall not be deemed to have exhausted State remedies if he has the right under State law to raise, by any available procedure, the question presented, 28 U.S.C.A. Sec. 2254. This section codified Ex parte Hawk.

[698] 334 U.S. 672 (1948).

[699] 258 U.S. 254 (1922).

[700] Ibid. 259.

[701] Houston _v._ Moore, 5 Wheat. 1, 27-28 (1820).

[702] Carriage Tax Act, 1 Stat. 373 (1794); License Tax on Wine and Spirits Act, 1 Stat. 376 (1794).

[703] 1 Stat. 302 (1793).

[704] 1 Stat. 414 (1795).

[705] 1 Stat. 577.

[706] 1 Stat. 727 (1799).

[707] 2 Stat. 453 (1808); 2 Stat. 473 (1808); 2 Stat. 499 (1808); 2 Stat. 506 (1809); 2 Stat. 528 (1809); 2 Stat. 550 (1809); 2 Stat. 605 (1810); 2 Stat. 707 (1812); 3 Stat. 88 (1813).

[708] 3 Stat. 244. For the trial of federal offenses in State courts _see_ Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545 (1925).

[709] Charles Warren, Federal Criminal Laws and State Courts, 38 Harv. L. Rev. 545, 577-581 (1925).

[710] Justice Story dissenting in Houston _v._ Moore, 5 Wheat. 1, 69 (1820); Justice McLean dissenting in United States _v._ Bailey, 9 Pet. 238, 259 (1835).

[711] 16 Pet. 539, 615 (1842).

[712] Robertson _v._ Baldwin, 165 U.S. 275 (1897); Dallemagne _v._ Moisan, 197 U.S. 169 (1905). _See also_ Teal _v._ Felton, 12 How. 284 (1852); Claflin _v._ Houseman, 93 U.S. 130 (1876). This last case proceeds on the express assumption that the State and National Governments are part of a single nation and implicity repudiates the idea of separate sovereignties, as set out in Prigg _v._ Pennsylvania, 16 Pet. 539 (1842).

[713] Mitchell Wendell, Relations between the Federal and State Courts (New York, 1949), 278.

[714] 35 Stat. 65 (1908).

[715] Hoxie _v._ New York, N.H. & H.R. Co., 82 Conn. 352 (1909).

[716] 223 U.S. 1, 59 (1912).

[717] Brown _v._ Western Ry. Co. of Alabama, 338 U.S. 294 (1949). _See_ Justice Frankfurter's dissent in this case for a summary of rulings to the contrary.

[718] 330 U.S. 386 (1947).

[719] 56 Stat. 23, 33-34, 205 (c).

[720] 330 U.S. 386, 389.

[721] Ibid. 390. Justice Black refers to Prigg _v._ Pennsylvania, 16 Pet. 539, 615 (1842), and other cases as broadly questioning the power and duty of State courts to enforce federal criminal law. The cases primarily relied upon in the opinion are Claflin _v._ Houseman, 93 U.S. 130 (1876); Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' Liability Cases), 223 U.S. 1 (1912).

[722] _Cf._ Doyle _v._ Continental Ins. Co., 94 U.S. 535 (1877), (which upheld a similar Wisconsin statute), and Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S. 246 (1906); with Home Ins. Co. _v._ Morse, 20 Wall. 445 (1874); Barron _v._ Burnside, 121 U.S. 186 (1887); Southern P. Co. _v._ Denton, 146 U.S. 202 (1892); Gerling _v._ Baltimore & O.R. Co., 151 U.S. 673, 684 (1894); Barrow S.S. Co. _v._ Kane, 170 U.S. 100, 111 (1898); Herndon _v._ Chicago, R.I. & P.R. Co., 218 U.S. 135 (1910); Harrison _v._ St. Louis & S.F.R. Co., 232 U.S. 318 (1914); Donald _v._ Philadelphia & R. Coal & I. Co., 241 U.S. 329 (1916).

[723] 257 U.S. 529, 532 (1922).

[724] 25 Edward III, Stat. 5, Ch. 2. _See also_ Story's Commentaries On The Constitution Of The United States, Vol. 2, 529-540, (5th ed.).

[725] 4 Cr. 75 (1807).

[726] Ibid. 75, 126.

[727] Ibid. 126.

[728] Ibid. 127.

[729] United States _v._ Burr, 4 Cr. 470, Appx. (1807).

[730] There have been a number of lower court cases in some of which convictions were obtained. As a result of the Whiskey Rebellion convictions of treason were obtained on the basis of the ruling that forcible resistance to the enforcement of the revenue laws was a constructive levying of war. United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795); United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795). After conviction, the defendants were pardoned. _See also_ for the same ruling in a different situation the Case of Fries, 9 Fed. Cas. Nos. 5,126 (1799); 5,127 (1800). The defendant was again pardoned after conviction. About a half century later participation in forcible resistance to the Fugitive Slave Law was held not to be a constructive levying of war. United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851). Although the United States Government regarded the activities of the Confederate States as a levying of war, the President by Amnesty Proclamation of December 25, 1868, pardoned all those who had participated on the southern side in the Civil War. In applying the Captured and Abandoned Property Act of 1863 (12 Stat. 820) in a civil proceeding, the Court declared that the foundation of the Confederacy was treason against the United States. Sprott _v._ United States, 20 Wall. 459 (1875). _See also_ Hanauer _v._ Doane, 12 Wall. 342 (1871); Thorington _v._ Smith, 8 Wall. 1 (1869); Young _v._ United States, 97 U.S. 39 (1878). These four cases bring in the concept of adhering to the enemy and giving him aid and comfort, but these are not criminal cases and deal with attempts to recover property under the Captured and Abandoned Property Act by persons who claimed that they had given no aid or comfort to the enemy. These cases are not, therefore, an interpretation of the Constitution.

[731] 325 U.S. 1 (1945).

[732] 89 Law. Ed. 1443-1444 (Argument of Counsel).

[733] 325 U.S. 35.

[734] Ibid. 34-35. Earlier Justice Jackson had declared that this phase of treason consists of two elements: "adherence to the enemy; and rendering him aid and comfort." A citizen, it was said, may take actions "which do aid and comfort the enemy--* * *--but if there is no adherence to the enemy in this, if there is no intent to betray, there is no treason." Ibid. 29. Justice Jackson states erroneously that the requirement of two witnesses to the same overt act was an original invention of the Convention of 1787. Actually it comes from the British Treason Trials Act of 1696 (7 and 8 Wm. III, C. 3).

[735] 330 U.S. 631 (1947).

[736] Ibid. 635-636.

[737] 330 U.S. 631, 645-646. Justice Douglas cites no cases for these propositions. Justice Murphy in a solitary dissent stated: "But the act of providing shelter was of the type that might naturally arise out of petitioner's relationship to his son, as the Court recognizes. By its very nature, therefore, it is a non-treasonous act. That is true even when the act is viewed in light of all the surrounding circumstances. All that can be said is that the problem of whether it was motivated by treasonous or non-treasonous factors is left in doubt. It is therefore not an overt act of treason, regardless of how unlawful it might otherwise be." Ibid. 649. The following summary, taken from the Appendix to the Government's brief in Cramer _v._ United States, 325 U.S. 1 (1945), and incorporated as note 38 in the Court's opinion (pp. 25-26), contains all the cases in which, prior to Kawakita _v._ United States, which is dealt with immediately below, construction of the treason clause has been involved except grand jury charges and cases to which interpretation of the clause was incidental: Whiskey Rebellion cases: United States _v._ Vigol, 28 Fed. Cas. No. 16,621 (1795), United States _v._ Mitchell, 26 Fed. Cas. No. 15,788 (1795) (constructive levying of war, based on forcible resistance to execution of a statute; defendants convicted and later pardoned). House tax case: Fries's Case, 9 Fed. Cas. Nos. 5,126, 5,127 (1799, 1800) (constructive levying of war, based on forcible resistance to execution of a statute; defendant convicted and later pardoned). The Burr Conspiracy: Ex parte Bollman, 4 Cr. 75 (1807); United States _v._ Burr, 25 Fed. Cas. Nos. 14,692a (1806); 14,693 (1807) (conspiracy to levy war held not an overt act of levying war). United States _v._ Lee, 26 Fed. Cas. No. 15,584 (1814) (sale of provisions a sufficient overt act; acquittal). United States _v._ Hodges, 26 Fed. Cas No. 15,374 (1815) (obtaining release of prisoners to the enemy is adhering to the enemy, the act showing the intent; acquittal). United States _v._ Hoxie, 26 Fed. Cas. No. 15,407 (1808) (attack of smugglers on troops enforcing embargo is riot and not levying of war). United States _v._ Pryor, 27 Fed. Cas. No. 16,096 (1814) (proceeding under flag of truce with enemy detachment to help buy provisions is too remote an act to establish adhering to the enemy). United States _v._ Hanway, 26 Fed. Cas. No. 15,299 (1851) (forcible resistance to execution of Fugitive Slave Law no levying of war). United States _v._ Greiner, 26 Fed. Cas. No. 15,262 (1861) (participation as members of state militia company in seizure of a federal fort is a levying of war). United States _v._ Greathouse, 26 Fed. Cas. No. 15,254 (1863) (fitting out and sailing a privateer is a levying of war; defendants convicted, later pardoned). Cases of confiscation of property or refusal to enforce obligations given in connection with sale of provisions to the Confederacy: Hanauer _v._ Doane, 12 Wall. 342 (1871); Carlisle _v._ United States, 16 Wall. 147 (1873); Sprott _v._ United States, 20 Wall. 459, 371[Transcriber's Note: "371" is incorrect--case occupies 20 Wall. 459-474 (1874)] (1874); United States _v._ Athens Armory, 24 Fed. Cas. No. 14,473 (1868) (mixed motive, involving commercial profit, does not bar finding of giving aid and comfort to the enemy). United States _v._ Cathcart and United States _v._ Parmenter, 25 Fed. Cas. No. 14,756 (1864). Chenoweth's Case (unreported: _see_ Ex parte Vallandigham, 28 Fed. Cas. No. 16,816, at 888 (1863)) (indictment bad for alleging aiding and abetting rebels, instead of directly charging levying of war). Case of Jefferson Davis, 7 Fed. Cas. No. 3621a (1867-71) (argument that rebels whose government achieved status of a recognized belligerent could not be held for treason; Davis was not tried on the indictment); _see_ 2 Warren, Supreme Court in United States History (1934 ed.) 485-487; Watson, Trial of Jefferson Davis (1915) 25 Yale L.J. 669. Philippine insurrections: United States _v._ Magtibay, 2 Phil. 703 (1903), United States _v._ De Los Reyes, 3 Phil. 349 (1904) (mere possession of rebel commissions insufficient overt acts; strict enforcement of two-witness requirement; convictions reversed); United States _v._ Lagnason, 3 Phil. 472 (1904) (armed effort to overthrow the government is levying war). United States _v._ Fricke, 259 F. 673 (1919) (acts "indifferent" on their face held sufficient overt acts). United States _v._ Robinson, 259 F. 685 (1919) (dictum, acts harmless on their face are insufficient overt acts). United States _v._ Werner, 247 F. 708 (1918), affirmed in 251 U.S. 466 (1920) (act indifferent on its face may be sufficient overt act). United States _v._ Haupt, 136 F. (2d) 661 (1943) (reversal of conviction on strict application of two-witness requirement and other grounds; inferentially approves acts harmless on their face as overt acts). Stephan _v._ United States, 133 F. (2d) 87 (1943) (acts harmless on their face may be sufficient overt acts; conviction affirmed but sentence commuted). United States _v._ Cramer, 137 F. (2d) 888 (1943).

[738] 343 U.S. 717.

[739] Ibid. 732. For citations on the subject of dual nationality, _see_ ibid. 723 note 2. Three dissenters asserted that Kawakita's conduct in Japan clearly showed he was consistently demonstrating his allegiance to Japan. "As a matter of law, he expatriated himself as well as that can be done." Ibid. 746.

[740] Ex parte Bollman, 4 Cr. 75 (1807).

[741] United States _v._ Burr, 4 Cr. 470 (1807).

[742] Cramer _v._ United States, 325 U.S. 1 (1945).

[743] Haupt _v._ United States, 330 U.S. 631 (1947).

[744] Ex parte Bollman, 4 Cr. 75, 126, 127 (1807).

[745] 12 Stat. 589. This act incidentally did not designate rebellion as treason.

[746] Miller _v._ United States, 11 Wall. 268, 305 (1871).

[747] Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876).

[748] Lord de la Warre's Case, 11 Coke, 1 a. A number of cases dealt with the effect of a full pardon by the President of owners of property confiscated under this act. They held that a full pardon relieved the owner of forfeiture as far as the Government was concerned, but did not divide the interest acquired by third persons from the Government during the lifetime of the offender. Illinois Central R. Co. _v._ Bosworth, 133 U.S. 92, 101 (1890); Knote _v._ United States, 95 U.S. 149 (1877); Wallach _v._ Van Riswick, 92 U.S. 202, 213 (1876); Armstrong's Foundry _v._ United States, 6 Wall. 766, 769 (1868). There is no direct ruling on the question of whether only citizens can commit treason. In Carlisle _v._ United States, 16 Wall. 147, 154-155 (1873), the Court declared that aliens while domiciled in this country owe a temporary allegiance to it and may be punished for treason equally with a native-born citizen in the absence of a treaty stipulation to the contrary. This case involved the attempt of certain British subjects to recover claims for property seized under the Captured and Abandoned Property Act, 12 Stat. 820 (1863) which provided for the recovery of property or its value in suits in the Court of Claims by persons who had not rendered aid and comfort to the enemy. Earlier in United States _v._ Wiltberger, 5 Wheat. 76, 97 (1820), which involved a conviction for manslaughter under an act punishing manslaughter and treason on the high seas, Chief Justice Marshall going beyond the necessities of the case stated that treason "is a breach of allegiance, and can be committed by him only who owes allegiance either perpetual or temporary."

ARTICLE IV

STATES' RELATIONS