The Constitution has proceeded upon a theory of its own, and given or withheld powers according to the judgment of the American people, by whom it was adopted. We (i. e. the Supreme Court) can only construe its powers, and cannot inquire into the policy or principles which induced the grant of them. The Constitution has presumed (whether rightly or wrongly we do not inquire) that State attachments, State prejudices, State jealousies, and State interests, might sometimes obstruct, or control, or be supposed to obstruct or control, the regular administration of justice. Hence, in controversies between States; between citizens of different States; between citizens claiming grants under different States; between a State and its citizens, or foreigners, and between citizens and foreigners, it enables the parties, under the authority of Congress, to have the controversies heard, tried, and determined before the national tribunals. No other reason than that which has been stated can be assigned, why some, at least, of these cases should not have been left to the cognizance of the State courts. In respect to the other enumerated cases—the cases arising under the Constitution, laws, and treaties of the United States, cases affecting ambassadors and other public ministers, and cases of admiralty and maritime jurisdiction—reasons of a higher and more extensive nature, touching the safety, peace, and sovereignty of the nation, might well justify a grant of exclusive legislation.[297]
From the principle here given it may be deduced that cases or controversies in State courts are removable from them into federal courts if the case or controversy involves the Constitution, a treaty or an act of Congress.[298]
But a prisoner in custody under the authority of a State should not, except in a case of peculiar urgency, be discharged by a court or judge of the United States upon a writ of habeas corpus, in advance of any proceedings in the courts of the State to test the validity of his arrest or detention.[299]
119. A federal court sitting within a State is a court of that State within the meaning of the Constitution and laws of the Union, “and as such, has an equal right with the State courts to fix the construction of the local law.”[300] A State tribunal’s decision must conform to that of the Supreme Court of the United States, but a federal court sitting within a State follows the highest State tribunal unless the decision of that tribunal has been set aside by the Supreme Court. Such procedure “tends to preserve harmony in the exercise of the judicial power, in the State and federal tribunals.” This means that the statute law of a State,—and a fixed and received construction by a State in its own courts, makes a part of the statute law,—is accepted by the federal courts sitting in the State. But the federal court there is not bound to follow such State precedents and authorities; the court possesses a jurisdiction independent of that conferred by State authority.[301] Thus it may be stated as accepted American constitutional law that where there are two co-ordinate jurisdictions, and especially “with regard to the law of real estate and the construction of State constitutions and statutes” and where are concerned “the doctrines of commercial law and general jurisprudence” the federal courts sitting in a State exercise their own judgment, “but even in such cases, for the sake of harmony and to avoid confusion, the federal courts will lean towards an agreement of views with the State courts, if the question seems to them balanced with doubt.”[302]
To the extent that a federal court sitting within a State follows State laws and decisions, to that extent is there a common law of the United States. There is, however, no national common or customary law of the United States; its law is statutory. But the interpretation of the Constitution by the judicial power of the United States
is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history. The code of constitutional and statutory construction which, therefore, is gradually formed by the judgments of (the Supreme) Court, in the application of the Constitution and the laws and treaties made in pursuance thereof, has for its basis so much of the common law as may be implied in the subject, and constitutes a common law resting on national authority.[303]
Note: For an account of acts of Congress declared unconstitutional by the Supreme Court see The Supreme Court and Unconstitutional Legislation, B. F. Moore, Columbia University Studies, vol. liv., No. 2, 1913.
CHAPTER IX
THE LAW OF STATE COMITY, TERRITORIES AND POSSESSIONS
120. The States comprising the Union possess equal powers and are subject to the same limitations. This means, in brief, that they have, respectively, the same jurisdiction. The sovereignty of one State is equal to the sovereignty of another. Because of this equality, they are all subject to the same rules of State comity. The aspects of this mutual equality are numerous and are the subject of provisions of the Constitution.[304]