The World Court (Vol. I, No. 1, Aug. 1915)

by Various

UNITED STATES SUPREME COURT THE PROTOTYPE OF A WORLD COURT

BY

HON. WILLIAM HOWARD TAFT

Institutional advances in the progress of the world are rarely made abruptly. They are not like Minerva, who sprang full-armed from the brain of Jove. If they are to have the useful feature of permanence they must be a growth so that the communities whose welfare they affect may grow accustomed to them as natural and so accept them. Our so-called Anglo-Saxon civil liberty with its guaranties of the Magna Charta, the Petition of Right, the Bill of Rights, the Habeas Corpus Act and the Independence of the Judiciary, constituting the unwritten British Constitution, made our American people familiar with a body of moral restraints upon executive and legislative action to secure the liberty of the individual. The written limitations upon Colonial legislative action in Colonial charters granted by the Crown and their enforcement by the Privy Council of England probably suggested to the framers of our Federal Constitution that the principles of British Constitutional liberty be given written form and be committed to a Supreme and Independent Court to enforce them as against the Executive and Congress, its coördinate branches in the Government. The step, epochal as it was, from judicially enforcing such limitations against a subordinate Legislature under a written charter of its powers, to a judicial enforcement of the limitations imposed by the sovereign people on the Legislature and Executive that they the people had created in the same instrument, was not radical but seemed naturally to follow. The revolted Colonies after the Revolution, though united by a common situation and a common cause in their struggle with Great Britain, and acting together through the Continental Congress in a loose and voluntary alliance, were sovereigns independent of each other. The Articles of Confederation, which declared their union to be permanent, were not agreed to and ratified in such a way as to be binding until some five years after the Declaration of Independence. Meantime it had become increasingly evident that, strong as were their common interests, they had divergent ones, too, which might embarrass their kindly relations. The leagues of Greece had furnished an example of confederations of small States, forced together by a common oppressor and foe, which had found it wise to settle their own differences by some kind of arbitral tribunal. The office which the Privy Council and the Crown had filled in settling inter-colonial controversies suggested an analogy less remote than those in Grecian history and prompted the adoption of a substitute. So there was inserted in the Articles of Confederation a provision for a “court to determine disputes and differences between two or more States of the Confederation concerning boundary jurisdiction or any other cause whatever.” The complainant State was authorized to present a petition to Congress stating the matter in question and praying for a hearing. Notice of this was to be given by order of Congress to the other State in the controversy, and a day was assigned for the appearance of the two parties by their lawful agents who should agree upon judges to constitute a court for hearing the matter in question. If they could not agree, Congress was then to name three persons out of each of the thirteen States. From this list each party was required alternately to strike out one until the number was reduced to thirteen, and from these thirteen not less than seven nor more than nine names, as Congress should direct, were in the presence of the Congress to be drawn by lot, and the persons whose names were so drawn, or any five of them, constituted the court to hear and finally determine the controversy.

Proceedings were instituted under this provision before the Constitution by New Jersey against Vermont, by New York against Vermont, by Massachusetts against Vermont, by Pennsylvania against Virginia, by Pennsylvania against Connecticut, by New Jersey against Virginia, by Massachusetts against New York, and by South Carolina against Georgia. Only one of these cases came to hearing and decision by a court selected as provided. That was the case of Pennsylvania against Connecticut, involving the governmental jurisdiction over the valley of Wyoming and Luzerne county. The court met and held a session of forty-one days at Trenton in New Jersey. Able counsel represented the parties, and the court made a unanimous decision in favor of Pennsylvania, without giving reasons. A compromise is suspected, because Connecticut promptly acquiesced, and soon thereafter, with the approval of the Pennsylvania delegation, Congress passed an act accepting a cession by Connecticut of all the lands claimed by it west of the west line of Pennsylvania, except the Western Reserve, now in Ohio, which Connecticut was thus given ownership of, and which it sold and settled. A number of the other cases were compromised, and in some no proceedings were taken after the initial ones.

In the Constitutional Convention the necessity for some tribunal to preserve peace and harmony between the States was fully conceded by all, but the form of court was the subject of some discussion. One proposal was that the Senate should be a court to decide between the States all questions disturbing peace and harmony between the States, while the Supreme Court was given only jurisdiction in controversies over boundaries. Ultimately, however, the judicial power of the United States exercised through the Supreme Court was extended to “controversies between States,” without exception.

To those who do not closely look into this jurisdiction of the Supreme Court it seems no different from that of the ordinary municipal court over controversies between individuals. The States are regarded merely as municipal or private corporations subject to suit process, trial, and judgment to be rendered on principles of municipal law declared by statute of State Legislature or Congress, or established as the common law. It is assumed that the Constitution has destroyed the independence and sovereignty of the States and made the arrangement a mere domestic affair. This is a misconception. The analogy between the function of the Supreme Court in hearing and deciding controversies between States and that of an international tribunal sitting to decide a cause between sovereign nations is very close. When the suit by one State against another presents a case that is controlled by provisions of the Federal Constitution, of course there is nothing international about it. But most controversies between States are not covered by the Federal Constitution. That instrument does not, for instance, fix the boundary line between two States. It does not fix the correlative rights of two States in the water of a non-navigable stream that flows from one of the States into another. It does not regulate the use which the State up stream may make of the water, either by diverting it for irrigation or by using it as a carrier of noxious sewage. Nor has Congress any power under the Constitution to lay down principles by Federal law to govern such cases. The Legislature of neither State can pass laws to regulate the right of the other State. In other words there is nothing but international law to govern. There is no domestic law to settle this class of cases any more than there would be if a similar controversy were to arise between Canada and the United States.

For many purposes, the States are independent sovereigns and not under Federal control. They have lost the powers which the people in the Constitution gave to the Central Government; but in the field of powers left to them each is supreme within its own limits, and by the exercise of that power may trespass on the exercise of similar power by its neighbor. How is such a conflict to be settled? It may be by diplomacy, i.e., by negotiation and compromise agreement, but this under the Constitution must be with the consent of Congress. It might be settled by war, but the Constitution forbids. And the State invaded by the forces of another State can appeal to the General Government to resist and suppress the invasion, no matter what the merits of the quarrel. In other words, one of the attributes of sovereignty and independence which the people in ordaining the Constitution took away from the States was the unlimited power to make agreements between each other as to their respective rights, and the other was that of making war on each other when other means of settlement failed.

What did the people through the Constitution substitute for these attributes of unrestricted diplomatic negotiation and compromise and the right to go to war over such interstate issues? The right of the complaining State to hale the offending State before the Supreme Court and have the issue decided by a binding judgment.

Now, can the complaining State bring every issue between it and another State before the Supreme Court? No. The only issues which the Court can hear and decide are questions which in their nature are capable of judicial solution. Mr. Justice Bradley first called such questions “justiciable,” and Chief Justice Fuller and Mr. Justice Brewer used the same term. There are issues between States of a character which would be likely to lead to high feeling and to war if they arose between independent sovereignties, and which the Supreme Court cannot decide because they are not capable of judicial solution. In such cases between States of course there can be no war, because the Federal Government would suppress it. Therefore, if an amicable understanding cannot be reached, the States are left with an unsettled dispute between them and no way of deciding it. They must put up with the existing state of things.

There have been several interesting cases before our Supreme Court illustrating the character of the jurisdiction I have been describing. Chicago built a sewage canal to drain her sewage with the aid of the waters of Lake Michigan into the Desplaines River, then into the Illinois, and then into the Mississippi, from which St. Louis and other Missouri towns derived their water supply. The Governor of Illinois was empowered to open the canal. The State of Missouri brought suit in the Supreme Court of the United States to enjoin the State of Illinois and the Sanitary District of Chicago from continuing the flow, on the ground that the impurities added to the Mississippi water had greatly increased the typhoid fever in Missouri. It was held that this was a subject matter capable of judicial solution—that Missouri was the guardian of her people’s welfare and had a right to bring such a suit, and, if she made a clear case, to enjoin such use of the Mississippi and its tributaries.

Mr. Justice Shiras, in upholding the jurisdiction (Missouri vs. Illinois, 180 U.S. 208, 241), spoke for the Court as follows:

“The cases cited show that such jurisdiction has been exercised in cases involving boundaries and jurisdiction over lands and their inhabitants, and in cases directly affecting the property rights and interests of a State. But such cases manifestly do not cover the entire field in which such controversies may arise, and for which the Constitution has provided a remedy; and it would be objectionable, and indeed impossible, for the Court to anticipate by definition what controversies can and what can not be brought within the original jurisdiction of this Court.

“An inspection of the bill discloses that the nature of the injury complained of is such that an adequate remedy can only be found in this Court at the suit of the State of Missouri. It is true that no question of boundary is involved, nor of direct property rights belonging to the complainant State. But it must surely be conceded that, if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them. If Missouri were an independent and sovereign State, all must admit that she could seek a remedy by negotiation, and, that failing, by force. Diplomatic powers and the right to make war having been surrendered to the General Government, it was to be expected that upon the latter would be devolved the duty of providing a remedy, and that remedy, we think, is found in the Constitutional provisions we are considering.”

This hearing was on demurrer. When the case came before the Court again on the merits, Mr. Justice Holmes delivered the judgment of the Court, and, while affirming the jurisdiction of the Court, pointed out the difficulties the Court has in exercising it and the care it must take in doing so. He said in the course of his opinion:

“It may be imagined that a nuisance might be created by a State upon a navigable river like the Danube which would amount to a casus belli for a State lower down unless removed. If such a nuisance were created by a State upon the Mississippi, the controversy would be resolved by the more peaceful means of a suit in this Court.”

Speaking of this provision in the Constitution extending the judicial power to controversies between States, Mr. Justice Bradley in Hans vs. Louisiana (134 U.S. 1-15) said:

“Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn vs. Lord Baltimore (I Ves. Sen. 444) shows that some of these unusual subjects of litigation were not unknown to the courts even in Colonial times; and several cases of the same general character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles (131 U. S. App. 1). The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the States. Of other controversies between a State and another State, or its citizens, which, on the settled principles of public law, are not subjects of judicial cognizance, this Court has often declined to take jurisdiction.”

A very satisfactory discussion of the scope of the power of the Supreme Court to settle controversies between States is contained in Mr. Justice Brewer’s opinion in the suit brought by Kansas against Colorado to restrain the latter from absorbing so much of the water of the Arkansas River flowing from Colorado into Kansas as seriously to interfere with the supply of water from the river for irrigation purposes in Kansas. He said (206 U. S. 95, 99):

“When the States of Kansas and Colorado were admitted into the Union they were admitted with the full powers of local sovereignty which belonged to other States (Pollard v. Hagan, supra; Shively v. Bowlby, supra; Hardin v. Shedd, 190 U. S., 508, 519); and Colorado by its legislation has recognized the right of appropriating the flowing waters to the purposes of irrigation. Now the question arises between two States, one recognizing generally the common law rule of riparian rights and the other prescribing the doctrine of the public ownership of flowing water. Neither State can legislate for nor impose its own policy upon the other. A stream flows through the two and a controversy is presented as to the flow of that stream. It does not follow, however, that because Congress cannot determine the rule which shall control between the two States, or because neither State can enforce its own policy upon the other, the controversy ceases to be one of a justiciable nature, or that there is no power which can take cognizance of the controversy and determine the relative rights of the two States. Indeed, the disagreement, coupled with its effect upon a stream passing through the two States, makes a matter for investigation and determination by this Court....

“As Congress cannot make compacts between the States as it cannot in respect to certain matters by legislation compel their separate action, disputes between them must be settled either by force or else by appeal to tribunals empowered to determine the right and wrong thereof. Force under our system of government is eliminated. The clear language of the Constitution vests in this Court the power to settle those disputes. We have exercised that power in a variety of instances, determining in the several instances the justice of the dispute. Now, is our jurisdiction ousted, even if, because Kansas and Colorado are States sovereign and independent in local matters, the relations between them depend in any respect upon principles of international law? International law is no alien in this tribunal....

“One cardinal rule, underlying all the relations of the States to each other, is that of equality of right. Each State stands on the same level with all the rest. It can impose its own legislation on no one of the others, and is bound to yield its own views to none. Yet, whenever, as in the case of Missouri v. Illinois, 180 U. S., 208, the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this Court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them. In other words, through these successive disputes and decisions this Court is practically building up what may not improperly be called interstate common law.”

Controversies between one State and another, or its citizens, which are not justiciable or capable of judicial solution find examples in the suits brought before the Supreme Court. One case of which the Supreme Court refused to take jurisdiction was Wisconsin vs. the Pelican Insurance Company (1 U. S.), in which the State of Wisconsin sought to enforce against a Louisiana insurance company a judgment rendered in a Wisconsin court for penalties imposed by a Wisconsin statute upon foreign insurance companies for failure to comply with statutory regulations of its business. It was held that neither under international comity nor law was one nation required to enforce extra-territorially the criminal law of another nation, and that therefore the controversy presented was not one of which as between the States of the Union the Supreme Court could take cognizance. Again, in Louisiana vs. Texas, 176 U. S., 1, Louisiana sought to restrain the Governor of Texas from so enforcing a quarantine law as to injure the business of the people of Louisiana. The law itself on its face was a proper one for the protection of Texas. In dismissing the suit the Court said:

“But in order that a controversy between States, justiciable in this Court, can be held to exist, something more must be put forward than that the citizens of one State are injured by the maladministration of the laws of another. The State cannot make war, nor enter into treaties, though they may, with the consent of Congress, make compacts and agreements. When there is no agreement, whose breach might create it, a controversy between States does not arise unless the action complained of is State action, and acts of State officers in abuse or excess of their powers cannot be laid hold of as in themselves committing one State to a distinct collision with a sister State.

“In our judgment, this bill does not set up facts which show that the State of Texas has so authorized or confirmed the alleged action of her health officer as to make it her own, or from which it necessarily follows that the two States are in controversy within the meaning of the Constitution.”