The American Commonwealth. Viscount James Bryce

“Cases affecting ambassadors, other public ministers, and consuls.”

      As these persons have an international character, it would be improper to allow them to be dealt with by a state court which has nothing to do with the national government, and for whose learning and respectability there may exist no such securities as those that surround the federal courts.

      3. “Cases of admiralty and maritime jurisdiction.”

      These are deemed to include not only prize cases but all maritime contracts, and all transactions relating to navigation, as well on the navigable lakes and rivers of the United States as on the high seas.

      4. “Controversies to which the United States shall be a party.”

      This provision is obviously needed to protect the United States from being obliged to sue or be sued in a state court, to whose decision the national government could not be expected to submit. When a pecuniary claim is sought to be established against the federal government, the proper tribunal is the Court of Claims.

      5. “Controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States, and between a State, or the citizens thereof, and foreign states, citizens, or subjects.”

      In all these cases a state court is likely to be, or at any rate to seem, a partial tribunal, and it is therefore desirable to vest the jurisdiction in judges equally unconnected with the plaintiff and the defendant. By securing recourse to an unbiased and competent tribunal, the citizens of every state obtain better commercial facilities than they could otherwise count upon, for their credit will stand higher with persons belonging to other states if the latter know that their legal rights are under the protection, not of local and possibly prejudiced judges, but of magistrates named by the national government, and unamenable to local influences.¹¹

      One important part of the jurisdiction here conveyed has been subsequently withdrawn from the federal judicature. When the Constitution was submitted to the people, a principal objection urged against it was that it exposed a state, although a sovereign commonwealth, to be sued by the individual citizens of some other state. That one state should sue another was perhaps necessary, for what other way could be discovered of terminating disputes? But the power as well as the dignity of a state would be gone if it could be dragged into court by a private plaintiff. Hamilton (writing in the Federalist) met the objection by arguing that the jurisdiction-giving clause of the Constitution ought not to be so construed, but must be read as being subject to the general doctrine that a sovereign body cannot be sued by an individual without its own consent, a doctrine not to be excluded by mere implication but only by express words.¹² However, in 1793 the Supreme Court, in the famous case of Chisholm v. The State of Georgia,¹³ construed the Constitution in the very sense which Hamilton had denied, holding that an action did lie against Georgia at the suit of a private plaintiff; and when Georgia protested and refused to appear, the Court proceeded (in 1794) to give judgment against her by default in case she should not appear and plead before a day fixed. Her cries of rage filled the Union, and brought other states to her help. An amendment (the eleventh) to the Constitution was passed through Congress and duly accepted by the requisite majority of the states, which declares that “the judicial power of the United States shall not be construed to extend to any suit commenced or prosecuted against one of the United States by citizens of another State or by citizens or subjects of any foreign states.” ¹⁴ Under the protection of this amendment, not a few states have with impunity repudiated their debts.

      

      The jurisdiction of the Supreme Court is original in cases affecting ambassadors, and wherever a state is a party; in other cases it is appellate; that is, cases may be brought to it from the inferior federal courts and (under the circumstances before mentioned) from state courts. The jurisdiction is in some matters exclusive, in others concurrent with that of the state courts. Upon these subjects there have arisen many difficult and intricate questions, which I must pass by, because they would be unintelligible without long explanations.¹⁵ One point, however, may be noted. The state courts cannot be invested by Congress with any jurisdiction, for Congress has no authority over them, and is not permitted by the Constitution to delegate any judicial powers to them. Hence the jurisdiction of a state court, wherever it is concurrent with that of federal judges, is a jurisdiction which the court possesses of its own right, independent of the Constitution. And in some instances where congressional statutes have purported to impose duties on state courts, the latter have refused to accept and discharge them.

      The criminal jurisdiction of the federal courts, which extends to all offences against federal law, is purely statutory. “The United States as such can have no common law. It derives its powers from the grant of the people made by the Constitution, and they are all to be found in the written law, and not elsewhere.” ¹⁶

      The procedure of the federal courts is prescribed by Congress, subject to some few rules contained in the Constitution, such as those which preserve the right of trial by jury in criminal cases¹⁷ and suits at common law.¹⁸ As “cases in law and equity” are mentioned, it is held that Congress could not accomplish such a fusion of law and equity as has been effected in several states of the Union, and was recently effected in England in 1873, but must maintain these methods of procedure as distinct, though administered by the same judges.

      The law applied in the federal courts is of course first and foremost that enacted by the federal legislature, which, when it is applicable, prevails against any state law. But very often, as for instance in suits between citizens of different states, federal law does not, or does only in a secondary way, come in question. In such instances the first thing is to determine what law it is that ought to govern the case, each state having a law of its own; and when this has been ascertained, it is applied to the facts, just as an English court would apply French or Scotch law in pronouncing on the validity of a marriage contracted in France or Scotland. In administering the law of any state (including its constitution, its statutes, and its common law, which in Louisiana is the civil law in its French form) the federal courts ought to follow the decisions of the state courts, treating those decisions as the highest authority on the law of the particular state. This doctrine is so fully applied that the Supreme Court has even overruled its own previous determinations on a point of state law in order to bring itself into agreement with the view of the highest court of the particular state. Needless to say, the state courts follow the decisions of the federal courts upon questions of federal law.¹⁹

      For the execution of its powers each federal court has attached to it an officer called the United States marshal, corresponding to the sheriff in the state governments, whose duty it is to carry out its writs, judgments, and orders by arresting prisoners, levying execution, putting persons in possession, and so forth. He is entitled, if resisted, to call on all good citizens for help; if they will not or cannot render it, he must refer to Washington and obtain the aid of federal troops. There exists also in every judiciary district a federal public prosecutor, called the United States district attorney, who institutes proceedings against persons transgressing federal laws or evading the discharge of obligations to the federal treasury. Both sets of officials are under the direction of the attorney general, as head of the Department of Justice. They constitute a network of federal authorities covering the whole territory of the Union, and independent of the officers of the state courts and of the public prosecutors who represent the state governments. Where a state maintains a gaol for the reception of federal prisoners, the U.S. marshal delivers his prisoners to the state gaoler; where this provision is wanting, he must himself arrange for their custody.

      The European reader may ask how it is possible to work a system so extremely complex, under which every yard of ground in the Union is covered by two jurisdictions, with two sets of judges and two sets of officers, responsible to different superiors, their spheres of action divided only by an ideal line, and their action liable in practice to clash. The answer is that the system does work, and now, after an experience of four generations, works smoothly. It is more costly than the simpler systems of France, Prussia, or England, though, owing to the small salaries paid, the expense falls rather on litigants than on the public treasury.