The American Judiciary

by Simeon E. Baldwin

Congress in 1842 did what it could to prevent the recurrence of such a conflict of authority by passing an Act giving the Circuit and District Courts of the United States jurisdiction on habeas corpus proceedings in favor of foreigners held by State authority, who might claim a right of release under the principles of international law.[Footnote: U. S. Revised Statutes, § 762.]

The Circuit Court has since 1875 been given power to entertain original jurisdiction of any causes arising under the Constitution, laws or treaties of the United States, regardless of the citizenship of the parties, if a value of $2,000 is involved. In all cases, also, of imprisonment by State authority, whether under arrest before trial or after a sentence of conviction, in violation of rights claimed under the Constitution, laws or treaties of the United States, the prisoner may now be summarily discharged on a writ of habeas corpus by a court or judge of the United States. Ordinarily, however, as a matter of comity, he will be left to seek his remedy in the State courts, and if without success there, on a writ of error from the Supreme Court of the United States.[Footnote: In re Neagle, 135 U. S. Reports, 1; Ex parte Royall, 117 U. S. Reports, 241.]

The State courts have no power to release on habeas corpus one who is held under the authority of the United States. If that authority has been illegally exerted, his remedy is in the federal courts alone.[Footnote: Ableman v. Booth, 21 Howard's Reports, 506.]

The cases in which a State can be sued in an original suit in the
Supreme Court of the United States are defined in the
Constitution and, as limited by the eleventh amendment to it, are
quite few.

Several such actions have been brought. In the earlier ones, the State declined to recognize the jurisdiction of the court and did not enter an appearance. The court thereupon decided to proceed ex parte on hearing the plaintiff;[Footnote: See New Jersey v. New York, 5 Peters' Reports, 283; U. B. Phillips, "Georgia and State Rights;" Report of American Historical Association for 1901, II, 83.] and in the later cases the States have appeared and made defense.

The court, in one of these suits, was asked to issue an injunction in favor of the Cherokee Indians against the State of Georgia to prevent her and her Governor, judges and other officers whatsoever from enforcing certain of her statutes which were alleged to be unconstitutional. The case went off on another point, but the majority of the court intimated it to be their opinion that no such injunction could properly issue against a sovereign State. Marshall thought it savored "too much of the exercise of political power to be within the proper province of the judicial department." Mr. Justice Johnson said that it was an attempt to compel the President of the United States, and by indirection, to do what he had declined to do on the plaintiff's application to him; namely, "to declare war against a State or to use the public force to repel the force and resist the laws of a State."[Footnote: Cherokee Nation v. Georgia, 5 Peters' Reports, 1, 19, 29.]

It would be no easy thing to enforce a judgment against a State should it resist. Hence the Supreme Court has been justly reluctant ever to make any order which would take money out of a State treasury, unless in cases where the Treasurer was individually sued, and the money in dispute was not mingled with other public funds. In 1794, four years before the adoption of the eleventh amendment, a judgment against the State of Georgia, authorizing an assessment of general money damages against her, had been entered in the Supreme Court in favor of one Chisholm, to whom she owed a debt. Georgia had refused to enter an appearance in the suit, and in anticipation of this result her House of Representatives had resolved, in 1793, that if any Federal marshal should attempt to levy an execution on such a judgment against the State, it should be a felony, and on conviction he should be hanged. The Senate had not concurred in this measure, but it reflected pretty closely the general state of public feeling in a State largely indebted for what her people thought it belonged to the United States to pay. The eleventh amendment was proposed by Congress during the term of court at which judgment was entered, but not adopted until 1798. Meanwhile, the court had thought best to defer further proceedings, and none were ever taken afterwards. The plaintiff therefore won a barren victory.[Footnote: U. B. Phillips, "Georgia and State Rights," Report of American Historical Association for 1901, II, 25.]

The appellate jurisdiction of the Supreme Court of the United States over States is large, for the State is the party in whose name all criminal prosecutions in its courts are brought, and in many of these the defendant sets up some claim under the laws of the United States which is overruled.

Here again, in case of resistance, it would be difficult to enforce a judgment of reversal.

Shortly before the action of the Cherokee Nation for an injunction, the Georgia courts had sentenced Corn Tassel, one of the tribe, to death for murdering another of them. Tassel had claimed that by the laws of the United States and their treaty with his nation he could only be prosecuted before one of his tribal courts. He obtained a writ of error from the Supreme Court to review his case on this ground. It was served, but before it could be heard the day set for his execution had arrived. By the laws of the United States the allowance of the writ of error superseded the sentence until the appeal should be decided. The Governor laid the matter before the legislature, saying that he did not propose to regard any orders from the Supreme Court interfering with those of Georgia courts, and should resist any attempt to enforce them with all the forces at his command. The legislature approved his position,[Footnote: U. B. Phillips, "Georgia and State Rights," Report of American Historical Association for 1901, II, 77.] and Tassel was hanged on the day originally set.[Footnote: "Memoirs of William Wirt," II, 291.] There had been no time to resort again to the Supreme Court for relief, and as soon as he was dead his writ of error fell with him, for such a proceeding is legally terminated if the plaintiff in error dies.