| Martin v. Hunter's Lessee
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[ Story ] | Separate
[ Johnson ] |
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Martin v. Hunter's Lessee
ERROR TO THE COURT OF APPEALS OF THE STATE OF VIRGINIA
JOHNSON, J.
It will be observed in this case that the Court disavows all intention to decide on the right to issue compulsory process to the State courts, thus leaving us, in my opinion, where the Constitution and laws place us -- supreme over persons and cases as far as our judicial powers extend, but not asserting any compulsory control over the State tribunals.
In this view I acquiesce in their opinion, but not altogether in the reasoning or opinion of my brother who delivered it. Few minds are accustomed to the same habit of thinking, and our conclusions are most satisfactory to ourselves when arrived at in our own way. [p363]
I have another reason for expressing my opinion on this occasion. I view this question as one of the most momentous importance; as one which may affect, in its consequences, the permanence of the American Union. It presents an instance of collision between the judicial powers of the Union, and one of the greatest States in the Union, on a point the most delicate and difficult to be adjusted. On the one hand, the General Government must cease to exist whenever it loses the power of protecting itself in the exercise of its constitutional powers. Force, which acts upon the physical powers of man, or judicial process, which addresses itself to his moral principles or his fears, are the only means to which governments can resort in the exercise of their authority. The former is happily unknown to the genius of our Constitution except as far as it shall be sanctioned by the latter, but let the latter be obstructed in its progress by an opposition which it cannot overcome or put by, and the resort must be to the former, or government is no more.
On the other hand, so firmly am I persuaded that the American people can no longer enjoy the blessings of a free government whenever the State sovereignties shall be prostrated at the feet of the General Government, nor the proud consciousness of equality and security any longer than the independence of judicial power shall be maintained consecrated and intangible, that I could borrow the language of a celebrated orator and exclaim, "I rejoice that Virginia has resisted."
Yet here I must claim the privilege of expressing [p364] my regret, that the opposition of the high and truly respected tribunal of that State had not been marked with a little more moderation. The only point necessary to be decided in the case then before them was "whether they were bound to obey the mandate emanating from this Court?" But, in the judgment entered on their minutes, they have affirmed that the case was, in this Court, coram non judice, or, in other words, that this Court had not jurisdiction over it.
This is assuming a truly alarming latitude of judicial power. Where is it to end? It is an acknowledged principle of, I believe, every Court in the world that not only the decisions, but everything done under the judicial process of courts not having jurisdiction are, ipso facto, void. Are, then, the judgments of this Court to be reviewed in every court of the Union? and is every recovery of money, every change of property, that has taken place under our process to be considered as null, void, and tortious?
We pretend not to more infallibility than other courts composed of the same frail materials which compose this. It would be the height of affectation to close our minds upon the recollection that we have been extracted from the same seminaries in which originated the learned men who preside over the State tribunals. But there is one claim which we can with confidence assert in our own name upon those tribunals -- the profound, uniform, and unaffected respect which this Court has always exhibited for State decisions give us strong pretensions to judicial comity. And another claim I may assert, in the name of the American people; in this Court, every State in [p365] the Union is represented; we are constituted by the voice of the Union, and when decisions take place which nothing but a spirit to give ground and harmonize can reconcile, ours is the superior claim upon the comity of the State tribunals. It is the nature of the human mind to press a favourite hypothesis too far, but magnanimity will always be ready to sacrifice the pride of opinion to public welfare.
In the case before us, the collision has been, on our part, wholly unsolicited. The exercise of this appellate jurisdiction over the State decisions has long been acquiesced in, and when the writ of error in this case was allowed by the President of the Court of Appeals of Virginia, we were sanctioned in supposing that we were to meet with the same acquiescence there. Had that Court refused to grant the writ in the first instance, or had the question of jurisdiction, or on the mode of exercising jurisdiction, been made here originally, we should have been put on our guard, and might have so modelled the process of the Court as to strip it of the offensive form of a mandate. In this case it might have been brought down to what probably the 25th section of the Judiciary Act meant it should be, to-wit, an alternative judgment either that the State court may finally proceed at its option to carry into effect the judgment of this Court or, if it declined doing so, that then this Court would proceed itself to execute it. The language, sense, and operation of the 25th section on this subject merit particular attention. In the preceding section, which has relation to causes brought up by writ of error from the Circuit Courts [p366] of the United States, this Court is instructed not to issue executions, but to send a special mandate to the Circuit Court to award execution thereupon. In case of the Circuit Court's refusal to obey such mandate, there could be no doubt as to the ulterior measures; compulsory process might, unquestionably, be resorted to. Nor, indeed, was there any reason to suppose that they ever would refuse, and therefore there is no provision made for authorizing this Court to execute its own judgment in cases of that description. But not so in cases brought up from the State courts; the framers of that law plainly foresaw that the State courts might refuse, and not being willing to leave ground for the implication that compulsory process must be resorted to, because no specific provision was made, they have provided the means, by authorizing this Court, in case of reversal of the State decision, to execute its own judgment. In case of reversal, only was this necessary, for, in case of affirmance, this collision could not arise. It is true that the words of this section are that this Court may, in their discretion, proceed to execute its own judgment. But these words were very properly put in, that it might not be made imperative upon this Court to proceed indiscriminately in this way, as it could only be necessary in case of the refusal of the State courts, and this idea is fully confirmed by the words of the 13th section, which restrict this Court in issuing the writ of mandamus, so as to confine it expressly to those Courts which are constituted by the United States. [p367]
In this point of view, the Legislature is completely vindicated from all intention to violate the independence of the State judiciaries. Nor can this Court, with any more correctness, have imputed to it similar intentions. The form of the mandate issued in this case is that known to appellate tribunals, and used in the ordinary cases of writs of error from the courts of the United States. It will, perhaps, not be too much, in such cases, to expect of those who are conversant in the forms, fictions, and technicality of the law not to give the process of courts too literal a construction. They should be considered with a view to the ends they are intended to answer and the law and practice in which they originate. In this view, the mandate was no more than a mode of submitting to that court the option which the 25th section holds out to them.
Had the decision of the Court of Virginia been confined to the point of their legal obligation to carry the judgment of this Court into effect, I should have thought it unnecessary to make any further observations in this cause. But we are called upon to vindicate our general revising power, and its due exercise in this particular case.
Here, that I may not be charged with arguing upon a hypothetical case, it is necessary to ascertain what the real question is which this Court is now called to decide on.
In doing this, it is necessary to do what, although, in the abstract, of very questionable propriety, appears to be generally acquiesced in, to-wit, to review the case as it originally came up to this Court [p368] on the former writ of error. The cause, then, came up upon a case stated between the parties, and under the practice of that State, having the effect of a special verdict. The case stated brings into view the treaty of peace with Great Britain, and then proceeds to present the various laws of Virginia and the facts upon which the parties found their respective titles. It then presents no particular question, but refers generally to the law arising out of the case. The original decision was obtained prior to the Treaty of 1794, but before the case was adjudicated in this Court, the Treaty of 1794 had been concluded.
The difficulties of the case arise under the construction of the 25th section above alluded to, which, as far as it relates to this case, is in these words:
A final judgment or decree in any suit, in the highest Court of law or equity of a State in which a decision in the suit could be had, . . . where is drawn in question the construction of any clause of the Constitution or of a treaty, . . . and the decision is against the title set up or claimed by either party under such clause, may be reexamined and reversed, or affirmed. . . . But no other error shall be assigned or regarded as a ground of reversal in any such case as aforesaid than such as appears on the face of the record and immediately respects the before-mentioned questions of validity or construction of the said treaties,
&c.
The first point decided under this state of the case was that, the judgment being a part of the record, if that judgment was not such as, upon that case, it ought to have been, it was an error apparent on the [p369] face of the record. But it was contended that the case there stated presented a number of points upon which the decision below may have been founded, and that it did not therefore necessarily appear to have been an error immediately respecting a question on the construction of a treaty. But the Court held that, as the reference was general to the law arising out of the case, if one question arose which called for the construction of a treaty, and the decision negatived the right set up under it, this Court will reverse that decision, and that it is the duty of the party who would avoid the inconvenience of this principle so to mould the case as to obviate the ambiguity. And under this point arises the question whether this Court can inquire into the title of the party, or whether they are so restricted in their judicial powers as to be confined to decide on the operation of a treaty upon a title previously ascertained to exist.
If there is any one point in the case on which an opinion may be given with confidence, it is this, whether we consider the letter of the statute, or the spirit, intent, or meaning, of the Constitution and of the legislature, as expressed in the 27th section, it is equally clear that the title is the primary object to which the attention of the Court is called in every such case. The words are, "and the decision be against the title," so set up, not against the construction of the treaty contended for by the party setting up the title. And how could it be otherwise? The title may exist notwithstanding the decision of the State courts to the contrary, and, in that case, the [p370] party is entitled to the benefits intended to be secured by the treaty. The decision to his prejudice may have been the result of those very errors, partialities, or defects in State jurisprudence against which the Constitution intended to protect the individual. And if the contrary doctrine be assumed, what is the consequence? This Court may then be called upon to decide on a mere hypothetical case -- to give a construction to a treaty without first deciding whether there was any interest on which that treaty, whatever be its proper construction, would operate. This difficulty was felt and weighed in the case of Smith and the State of Maryland, and that decision was founded upon the idea that this Court was not thus restricted.
But another difficulty presented itself: the Treaty of 1794 had become the supreme law of the land since the judgment rendered in the Court below. The defendant, who was at that time an alien, had now become confirmed in his rights under that treaty. This would have been no objection to the correctness of the original judgment. Were we, then, at liberty to notice that treaty in rendering the judgment of this Court?
Having dissented from the opinion of this Court in the original case on the question of title, this difficulty did not present itself in my way in the view I then took of the case. But the majority of this Court determined that, as a public law, the treaty was a part of the law of every case depending in this Court; that, as such, it was not necessary that it should be spread upon the record, and that it was obligatory [p371] upon this Court, in rendering judgment upon this writ of error, notwithstanding the original judgment may have been otherwise unimpeachable. And to this opinion I yielded my hearty consent, for it cannot be maintained that this Court is bound to give a judgment unlawful at the time of rendering it, in consideration that the same judgment would have been lawful at any prior time. What judgment can now be lawfully rendered between the parties is the question to which the attention of the Court is called. And if the law which sanctioned the original judgment expire pending an appeal, this Court has repeatedly reversed the judgment below, although rendered whilst the law existed. So, too, if the plaintiff in error die pending suit, and his land descend on an alien, it cannot be contended that this Court will maintain the suit in right of the judgment in favour of his ancestor, notwithstanding his present disability.
It must here be recollected that this is an action of ejectment. If the term formally declared upon expires pending the action, the Court will permit the plaintiff to amend by extending the term -- why? Because, although the right may have been in him at the commencement of the suit, it has ceased before judgment, and, without this amendment, he could not have judgment. But suppose the suit were really instituted to obtain possession of a leasehold, and the lease expire before judgment, would the Court permit the party to amend in opposition to the right of the case? On the contrary, if the term formally declared on were more extensive than the [p372] lease in which the legal title was founded, could they give judgment for more than costs? It must be recollected that, under this judgment, a writ of restitution is the fruit of the law. This, in its very nature, has relation to, and must be founded upon, a present existing right at the time of judgment. And whatever be the cause which takes this right away, the remedy must, in the reason and nature of things, fall with it.
When all these incidental points are disposed of, we find the question finally reduced to this -- does the judicial power of the United States extend to the revision of decisions of State courts in cases arising under treaties? But in order to generalize the question and present it in the true form in which it presents itself in this case, we will inquire whether the Constitution sanctions the exercise of a revising power over the decisions of State tribunals in those cases to which the judicial power of the United States extends?
And here it appears to me that the great difficulty is on the other side. That the real doubt is whether the State tribunals can constitutionally exercise jurisdiction in any of the cases to which the judicial power of the United States extends.
Some cession of judicial power is contemplated by the third article of the Constitution; that which is ceded can no longer be retained. In one of the Circuit Courts of the United States, it has been decided (with what correctness I will not say) that the cession of a power to pass an uniform act of bankruptcy, although not acted on by the United States, deprives [p373] the States of the power of passing laws to that effect. With regard to the admiralty and maritime jurisdiction, it would be difficult to prove that the States could resume it if the United States should abolish the Courts vested with that jurisdiction; yet it is blended with the other cases of jurisdiction in the second section of the third article, and ceded in the same words. But it is contended that the second section of the third article contains no express cession of jurisdiction; that it only vests a power in Congress to assume jurisdiction to the extent therein expressed. And under this head arose the discussion on the construction proper to be given to that article.
On this part of the case, I shall not pause long. The rules of construction, where the nature of the instrument is ascertained, are familiar to every one. To me, the Constitution appears, in every line of it, to be a contract which, in legal language, may be denominated tripartite. The parties are the people, the States, and the United States. It is returning in a circle to contend that it professes to be the exclusive act of the people, for what have the people done but to form this compact? That the States are recognised as parties to it is evident from various passages, and particularly that in which the United States guaranty to each State a republican form of Government.
The security and happiness of the whole was the object, and, to prevent dissention and collision, each surrendered those powers which might make them dangerous to each other. Well aware of the sensitive [p374] irritability of sovereign States, where their wills or interests clash, they placed themselves, with regard to each other, on the footing of sovereigns upon the ocean, where power is mutually conceded to act upon the individual, but the national vessel must remain unviolated. And to remove all ground for jealousy and complaint, they relinquish the privilege of being any longer the exclusive arbiters of their own justice where the rights of others come in question or the great interests of the whole may be affected by those feelings, partialities, or prejudices, which they meant to put down forever.
Nor shall I enter into a minute discussion on the meaning of the language of this section. I have seldom found much good result from hypercritical severity in examining the distinct force of words. Language is essentially defective in precision, more so than those are aware of who are not in the habit of subjecting it to philological analysis. In the case before us, for instance, a rigid construction might be made which would annihilate the powers intended to be ceded. The words are, "shall extend to;" now that which extends to does not necessarily include in, so that the circle may enlarge until it reaches the objects that limit it, and yet not take them in. But the plain and obvious sense and meaning of the word "shall," in this sentence, is in the future sense, and has nothing imperative in it. The language of the framers of the Constitution is "We are about forming a General Government -- when that Government is formed, its powers shall extend," &c. I therefore see nothing imperative in this clause, and certainly [p375] it would have been very unnecessary to use the word in that sense; for, as there was no controlling power constituted, it would only, if used in an imperative sense, have imposed a moral obligation to act. But the same result arises from using it in a future sense, and the Constitution everywhere assumes as a postulate that wherever power is given, it will be used, or at least used as far as the interests of the American people require it, if not from the natural proneness of man to the exercise of power, at least from a sense of duty and the obligation of an oath.
Nor can I see any difference in the effect of the words used in this section, as to the scope of the jurisdiction of the United States' courts over the cases of the first and second description comprised in that section. "Shall extend to controversies," appears to me as comprehensive in effect as "shall extend to all cases." For if the judicial power extend "to controversies between citizen and alien," &c., to what controversies of that description does it not extend? If no case can be pointed out which is excepted, it then extends to all controversies.
But I will assume the construction as a sound one that the cession of power to the General Government means no more than that they may assume the exercise of it whenever they think it advisable. It is clear that Congress have hitherto acted under that impression, and my own opinion is in favour of its correctness. But does it not then follow that the jurisdiction of the State court, within the range ceded to the General Government, is permitted, and [p376] may be withdrawn whenever Congress think proper to do so? As it is a principle that everyone may renounce a right introduced for his benefit, we will admit that, as Congress have not assumed such jurisdiction, the State courts may constitutionally exercise jurisdiction in such cases. Yet surely the general power to withdraw the exercise of it includes in it the right to modify, limit, and restrain that exercise.
This is my domain, put not your foot upon it; if you do, you are subject to my laws; I have a right to exclude you altogether; I have, then, a right to prescribe the terms of your admission to a participation. As long as you conform to my laws, participate in peace, but I reserve to myself the right of judging how far your acts are conformable to my laws.
Analogy, then, to the ordinary exercise of sovereign authority would sustain the exercise of this controlling or revising power.
But it is argued that a power to assume jurisdiction to the constitutional extent does not necessarily carry with it a right to exercise appellate power over the State tribunals.
This is a momentous questions, and one on which I shall reserve myself uncommitted for each particular case as it shall occur. It is enough, at present, to have shown that Congress has not asserted, and this Court has not attempted, to exercise that kind of authority in personam over the State courts which would place them in the relation of an inferior responsible body without their own acquiescence. And I have too much confidence in the State tribunals to believe that a case ever will occur in which it will be necessary [p377] for the General Government to assume a controlling power over these tribunals. But is it difficult to suppose a case which will call loudly for some remedy or restraint? Suppose a foreign minister or an officer acting regularly under authority from the United States, seized today, tried tomorrow, and hurried the next day to execution. Such cases may occur, and have occurred, in other countries. The angry vindictive passions of men have too often made their way into judicial tribunals, and we cannot hope forever to escape their baleful influence. In the case supposed, there ought to be a power somewhere to restrain or punish, or the Union must be dissolved. At present, the uncontrollable exercise of criminal jurisdiction is most securely confided to the State tribunals. The Courts of the United States are vested with no power to scrutinize into the proceedings of the State courts in criminal cases; on the contrary, the General Government has, in more than one instance, exhibited their confidence by a wish to vest them with the execution of their own penal law. And extreme, indeed, I flatter myself, must be the case in which the General Government could ever be induced to assert this right. If ever such a case should occur, it will be time enough to decide upon their constitutional power to do so.
But we know that, by the 3d article of the Constitution, judicial power, to a certain extent, is vested in the General Government, and that, by the same instrument, power is given to pass all laws necessary to carry into effect the provisions of the Constitution. At present, it is only necessary to vindicate the [p378] laws which they have passed affecting civil cases pending in State tribunals.
In legislating on this subject, Congress, in the true spirit of the Constitution, have proposed to secure to everyone the full benefit of the Constitution without forcing any one necessarily into the courts of the United States. With this view, in one class of cases, they have not taken away absolutely from the State courts all the cases to which their judicial power extends, but left it to the plaintiff to bring his action there originally if he choose, or to the defendant to force the plaintiff into the courts of the United States where they have jurisdiction, and the former has instituted his suit in the State courts. In this case, they have not made it legal for the defendant to plead to the jurisdiction, the effect of which would be to put an end to the plaintiff's suit and oblige him, probably at great risk or expense, to institute a new action; but the Act has given him a right to obtain an order for a removal, on a petition to the State court, upon which the cause, with all its existing advantages, is transferred to the Circuit Court of the United States. This, I presume, can be subject to no objection, as the Legislature has an unquestionable right to make the ground of removal a ground of plea to the jurisdiction, and the Court must then do no more than it is now called upon to do, to-wit, give an order or a judgment, or call it what we will, in favour of that defendant. And so far from asserting the inferiority of the State tribunal, this act is rather that of a superior, inasmuch as the Circuit Court of the United States becomes bound, [p379] by that order, to take jurisdiction of the case. This method, so much more unlikely to affect official delicacy than that which is resorted to in the other class of cases, might perhaps have been more happily applied to all the cases which the Legislature thought it advisable to remove from the State courts. But the other class of cases, in which the present is included, was proposed to be provided for in a different manner. And here, again, the Legislature of the Union evince their confidence in the State tribunals, for they do not attempt to give original cognizance to their own Circuit Courts of such cases, or to remove them by petition and order; but still believing that their decisions will be generally satisfactory, a writ of error is not given immediately as a question within the jurisdiction of the United States shall occur, but only in case the decision shall finally, in the Court of the last resort, be against the title set up under the Constitution, treaty, &c.
In this act I can see nothing which amounts to an assertion of the inferiority or dependence of the State tribunals. The presiding judge of the State court is himself authorized to issue the writ of error, if he will, and thus give jurisdiction to the Supreme Court; and if he thinks proper to decline it, no compulsory process is provided by law to oblige him. The party who imagines himself aggrieved is then at liberty to apply to a judge of the United States, who issues the writ of error, which (whatever the form) is, in substance, no more than a mode of compelling the opposite party to appear before this Court and maintain the legality of his judgment obtained before the [p380] state tribunal. An exemplification of a record is the common property of every one who chooses to apply and pay for it, and thus the case and the parties are brought before us; and so far is the court itself from being brought under the revising power of this Court that nothing but the case, as presented by the record and pleadings of the parties, is considered, and the opinions of the court are never resorted to unless for the purpose of assisting this Court in forming their own opinions.
The absolute necessity that there was for Congress to exercise something of a revising power over cases and parties in the State courts will appear from this consideration.
Suppose the whole extent of the judicial power of the United States vested in their own courts, yet such a provision would not answer all the ends of the Constitution, for two reasons:
1st. Although the plaintiff may, in such case, have the full benefit of the Constitution extended to him, yet the defendant would not, as the plaintiff might force him into the court of the State at his election.
2dly. Supposing it possible so to legislate as to give the courts of the United States original jurisdiction in all cases arising under the Constitution, laws, &c., in the words of the 2d section of the 3d article (a point on which I have some doubt, and which in time might perhaps, under some quo minus fiction or a willing construction, greatly accumulate the jurisdiction of those Courts), yet a very large class of cases would remain unprovided for. Incidental questions would often arise, and as a Court of competent [p381] jurisdiction in the principal case must decide all such questions, whatever laws they arise under, endless might be the diversity of decisions throughout the Union upon the Constitution, treaties, and laws of the United States, a subject on which the tranquillity of the Union, internally and externally, may materially depend.
I should feel the more hesitation in adopting the opinions which I express in this case were I not firmly convinced that they are practical, and may be acted upon without compromitting the harmony of the Union or bringing humility upon the State tribunals. God forbid that the judicial power in these States should ever for a moment, even in its humblest departments, feel a doubt of its own independence. Whilst adjudicating on a subject which the laws of the country assign finally to the revising power of another tribunal, it can feel no such doubt. An anxiety to do justice is ever relieved by the knowledge that what we do is not final between the parties. And no sense of dependence can be felt from the knowledge that the parties, not the Court, may be summoned before another tribunal. With this view, by means of laws, avoiding judgments obtained in the State courts in cases over which Congress has constitutionally assumed jurisdiction, and inflicting penalties on parties who shall contumaciously persist in infringing the constitutional rights of others -- under a liberal extension of the writ of injunction and the habeas corpus ad subjiciendum, I flatter myself that the full extent of the constitutional revising power may be secured to the United States, and the [p382] benefits of it to the individual, without ever resorting to compulsory or restrictive process upon the State tribunals; a right which, I repeat again, Congress has not asserted, nor has this Court asserted, nor does there appear any necessity for asserting.
The remaining points in the case being mere questions of practice, I shall make no remarks upon them.
Judgment affirmed.