Congress has passed no act for the special purpose of
prescribing the mode of proceeding in suits instituted against a
state, or in any suit in which the Supreme Court is to exercise the
original jurisdiction conferred by the Constitution.
It has been settled, on great deliberation, that this Court may
exercise its original jurisdiction in suits against a state under
the authority conferred by the Constitution and existing acts of
Congress. The rule respecting the process, the persons on whom it
is to be served, and the time of service, is fixed. The course of
the Court after due service of process has also been
prescribed.
In a suit in this Court instituted by a state against another
state of the Union, the service of the process of the court on the
governor and attorney general of the state sixty days before the
return day of the process, is a sufficient service.
At a very early period in our judicial history, suits were
instituted in this Court against states, and the questions
concerning its jurisdiction and mode of proceeding were necessarily
considered.
After due service of the subpoena, the state which is
complainant has a right to proceed
ex parte, and if after
the service of an order of the Court for the hearing of the case
there shall not be an appearance, the Court will proceed to a final
hearing.
No final decree or judgment having been given in this Court
against a state, the question of proceeding to a final decree is
not conclusively settled in this case until the cause shall come on
to be heard in chief.
The cases of
Georgia v. Brailsford; Oswald v. New York;
Chisholm v. Georgia; New York v. Connecticut; Grayson v.
Virginia cited as to the jurisdiction and modes of proceeding
in suits in which a state is a party.
Mr. Wirt, for the complainant, stated that the subpoena had been
regularly served upwards of two months, and there was no appearance
on the part of the State of New York.
The seventeenth section of the Judiciary Act of 1789 authorizes
the Court to make and establish all necessary rules for the
conducting the business of the courts of the United States. This
Court has such a power without the aid of that provision of the
law.
The seventh rule of this Court, which was applicable to this
matter, was made at August term, 1791. THE CHIEF JUSTICE, in answer
to the motion of the Attorney General, informs him and the bar that
this Court consider the practice of the Court of King's Bench and
of Chancery in England as affording outlines for the practice of
this Court, and that they will from
Page 30 U. S. 285
time to time make such alterations therein as circumstances may
render necessary. 1 Cond. viii.
In 1796, the tenth rule was adopted.
"Ordered that process of subpoena issuing out of this Court in
any suit in equity shall be served on the defendant sixty days
before the return day of the said process, and further that if the
defendant on such service of the subpoena should not appear at the
return day contained therein, the complainant shall be at liberty
to proceed
ex parte."
Ibid.
Construing these two rules together, they bring us in the case
before the Court to that part of the English practice where the
party may proceed to a hearing. There is no necessity for those
proceedings here which are resorted to in England to compel an
appearance.
Nor would the practice in England be proper in the case before
the Court. The object of the bill is to quiet a title; it is a bill
of peace. Here the rule considers the party, when served with
process, in the same situation as if he had appeared.
The question is what is to be done when all the process to
compel an appearance is exhausted; what is the next step? It is to
take the bill
pro confesso; but in England, formerly, by a
standing rule in chancery, before this can be done, the party must
have appeared.
Afterwards, to prevent the process of the court being eluded,
the statute of 25 George II was enacted, by which it was provided
that if no appearance was entered by one who had absconded, the
court would make an order for an appearance, and if no appearance
was entered, the bill should be taken
pro confesso.
This statute regulated the practice in the courts of chancery of
England in 1791, when the seventh rule of this Court was adopted.
But this statute applied only to the case of a party absconding,
and it was only to force an appearance. In the present case, as has
been observed, we stand as if all the proceedings for such a
purpose had been exhausted.
Different practices prevail in relation to such a case in the
several states of the union. In New Jersey, the practice is to file
the proofs in the cause and proceed to a hearing. This is not the
course which is pursued in Virginia. As to the practice in England,
cited 2 Pr.Wm. 556; Moseley 386; Har.
Page 30 U. S. 286
Chancery Practice by Newland 156; 1 Grant's Chancery Practice
96.
Something is now to be done in this case, and it is for the
Court to determine what that may be. If the Court desire it, it is
fully competent to them to make any new rule relative to the future
proceedings in the case.
In the Court of Chancery in England, the party could take a
decree
pro confesso and consider it as final. But this is
not the wish of the complainant. It is desired that the proceedings
should be carried on with the utmost respect to the other party,
and the wish of the State of New Jersey is to have an examination
of the case and a final decree after such an examination.
It is therefore proposed that the Court direct a rule to be
entered that the bill be taken
pro confesso, unless the
party against whom it is filed appear and answer before the rules
day in August next, and if it does not, that the cause be set down
for a final hearing at the next term of this Court on such proofs
as the complainants may exhibit.
MR. JUSTICE BALDWIN suggested that it might be proper to argue
certain questions arising in this case in open court, such as what
was the proper duty of the Court in the case? What was the practice
in England? And whether this Court had power to proceed in suits
between states without an act of Congress having directed the mode
of proceeding? He did not propose this as a matter personal to
himself, but as a member of the Court.
Mr. Wirt said that the jurisdiction which was to be exercised
was given by the Constitution, and the seventeenth section of the
act of Congress authorized the Court to establish such rules as to
the manner in which the power should be executed. There are cases
in which the court have taken this jurisdiction. The case of
Chisholm v.
Georgia, 2 Dall. 219; 2 Condens. 635;
Grayson v.
Virginia, 3 Dall. 320; 1 Condens. 141.
When the subpoena was asked for at last term of this Court,
28 U. S. 3 Pet.
461, the case of
Chisholm v. Georgia was then particularly
referred to, and it was considered that although
Page 30 U. S. 287
the amendment to the Constitution has taken away the
jurisdiction of this Court in suits brought by individuals against
a state, it has left it jurisdiction in suits between states, in
the situation in which it stood originally. The Court, in awarding
the process of subpoena, had reference to these cases.
If an elaborate argument of the questions which the case
presents is desired, time is asked to prepare for it, and
sufficient time to give notice to the Attorney General of the State
of New Jersey to attend and assist in the argument.
MR. CHIEF JUSTICE MARSHALL delivered the opinion of the
Court.
This is a bill filed by the State of New Jersey against the
State of New York for the purpose of ascertaining and settling the
boundary between the two states.
The Constitution of the United States declares that "The
judicial power shall extend to controversies between two or more
states." It also declares that
"In all cases affecting ambassadors, other public ministers and
consuls, and those in which a state shall be a party, the Supreme
Court shall have original jurisdiction."
Congress has passed no act for the special purpose of
prescribing the mode of proceeding in suits instituted against a
state or in any suit in which the Supreme Court is to exercise the
original jurisdiction conferred by the Constitution.
The act to establish the judicial courts of the United States,
section thirteen, enacts
"That the Supreme Court shall have exclusive jurisdiction of all
controversies of a civil nature where a state is a party, except
between a state and its citizens, and except also between a state
and citizens of other states or aliens, in which latter case it
shall have original but not exclusive jurisdiction."
It also enacts, section fourteen,
"That all the before-mentioned courts of the United States shall
have power to issue writs of
scire facias, habeas corpus,
and all other writs not specially provided by statute which may be
necessary for the exercise of their respective jurisdictions and
agreeable to the principles and usages of law."
By the seventeenth section it is enacted
"That all the said courts of the United States shall have power
. . . to make and establish all necessary rules for the ordinary
conducting business in the
Page 30 U. S. 288
said courts, provided such rules are not repugnant to the laws
of the United States."
"An act to regulate processes in the courts of the United
States" was passed at the same session with the Judicial Act, and
was depending before Congress at the same time. It enacts "All
writs and processes issuing from a supreme or a circuit court shall
bear teste," &c. This act was rendered perpetual in 1792. The
first section of the act of 1792 repeats the provision respecting
writs and processes, issuing from the supreme or a circuit court.
The second continues the form of writs, &c., and the forms and
modes of proceeding in suits at common law prescribed in the
original acts, and in those of equity, and in those of admiralty
and maritime jurisdiction, according to the principles, rules, and
usages which belong to courts of equity and to courts of admiralty
respectively, as contradistinguished from courts of common law,
except so far as may have been provided for by the act to establish
the judicial courts of the United States, subject however to such
alterations and additions as the said courts respectively shall in
their discretion deem expedient, or to such regulations as the
Supreme Court of the United States shall think proper, from time to
time, by rule to prescribe to any circuit or district court
concerning the same.
At a very early period in our judicial history, suits were
instituted in this Court against states, and the questions
concerning its jurisdiction and mode of proceeding were necessarily
considered.
So early as August, 1792, an injunction was awarded at the
prayer of the State of Georgia to stay a sum of money recovered by
Brailsford, a British subject, which was claimed by Georgia under
her acts of confiscation. This was an exercise of the original
jurisdiction of the Court, and no doubt of its propriety was ever
expressed.
In February, 1793, the case of
Oswald v. New York came
on. This was a suit at common law. The state not appearing on the
return of the process, proclamation was made, and the following
order entered by the Court. "Unless the state appear by the first
day of the next term or show cause to the contrary, judgment will
be entered by default against the said state."
Page 30 U. S. 289
At the same term, the case of
Chisholm's Executors v.
Georgia came on and was argued for the plaintiffs by the then
Attorney General, Mr. Randolph. The judges delivered their opinions
seriatim, and those opinions bear ample testimony to the
profound consideration they had bestowed on every question arising
in the case. Mr. Chief Justice Jay, Mr. Justice Cushing Mr. Justice
Wilson, and Mr. Justice Blair decided in favor of the jurisdiction
of the Court, and that the process served on the governor and
attorney general of the state was sufficient. Mr. Justice Iredell
thought an act of Congress necessary to enable the Court to
exercise its jurisdiction.
After directing the declaration to be filed and copies of it to
be served on the Governor and Attorney General of the State of
Georgia, the Court ordered
"that unless the said state shall either in due form appear or
show cause to the contrary in this Court by the 1st day of the next
term, judgment by default shall be entered against the said
state."
In February term, 1794, judgment was rendered for the plaintiff,
and a writ of inquiry was awarded, but the Eleventh Amendment to
the Constitution prevented its execution.
Grayson v.
Virginia, 3 Dall. 320, 1 Pet. Cond. 141, was a bill
in equity. The subpoena having been returned executed, the
plaintiff moved for a
distringas to compel the appearance
of the state. The Court postponed its decision on the motion in
consequence of a doubt whether the remedy to compel the appearance
of the state should be furnished by the Court itself or by the
legislature. At a subsequent term, the Court, "after a particular
examination of its power," determined that though
"the general rule prescribed the adoption of that practice which
is founded on the custom and usage of courts of admiralty and
equity, . . . still it was thought that we are also authorized to
make such deviations as are necessary to adapt the process and
rules of the Court to the peculiar circumstances of this country,
subject to the interposition, alteration, and control of the
legislature. We have therefore agreed to make the following general
orders."
"1. Ordered, that when process at common law or in equity shall
issue against a state, the same shall be served upon the governor
or chief executive magistrate, and the attorney general of such
state. "
Page 30 U. S. 290
"2. Ordered that process of subpoena issuing out of this Court
in any suit in equity shall be served on the defendant sixty days
before the return day of the said process, and further that if the
defendant, on such service of the subpoena, shall not appear at the
return day contained therein, the complainant shall be at liberty
to proceed
ex parte."
3 U. S. 3 Dall. 320;
1 Pet. Cond. 141.
In
Huger v. South Carolina, the service of the subpoena
having been proved, the Court determined that the complainant was
at liberty to proceed
ex parte. He accordingly moved for
and obtained commissions to take the examination of witnesses in
several of the states.
Fowler v. Lindsey and
Fowler v. Miller,
3 U. S. 3 Dall. 411,
1 Cond. 189, were ejectments depending in the circuit court for the
District of Connecticut for lands over which both New York and
Connecticut claimed jurisdiction. A rule to show cause why these
suits should not be removed into the Supreme Court by certiorari
was discharged, because a state was neither nominally nor
substantially a party. No doubt was entertained of the propriety of
exercising original jurisdiction had a state been a party on the
record.
In consequence of the rejection of this motion for a certiorari,
the State of New York, in August term, 1799, filed a bill against
the State of Connecticut,
4 U. S. 4 Dall. 1, 1
Pet. Cond. 203, which contained an historical account of the title
of New York to the soil and jurisdiction of the tract of land in
dispute; set forth an agreement of 28 November, 1783, between the
two states on the subject, and prayed a discovery, relief, and
injunction to stay the proceedings in the ejectments depending in
the Circuit Court of Connecticut. The injunction was, on argument,
refused because the State of New York was not a party to the
ejectments nor interested in their decision.
It has then been settled by our predecessors on great
deliberation that this Court may exercise its original jurisdiction
in suits against a state under the authority conferred by the
Constitution and existing acts of Congress. The rule respecting the
process, the persons on whom it is to be served, and the time of
service are fixed. The course of the Court on the failure
Page 30 U. S. 291
of the state to appear, after the due service of process has
been also prescribed.
In this case, the subpoena has been served as is required by the
rule. The complainant according to the practice of the Court, and
according to the general order made in the case of
Grayson v.
Virginia, has a right to proceed
ex parte, and the
Court will make an order to that effect, that the cause may be
prepared for a final hearing. If upon being served with a copy of
such order, the defendant shall still fail to appear or to show
cause to the contrary, this Court will, as soon thereafter as the
cause shall be prepared by the complainant, proceed to a final
hearing and decision thereof. But inasmuch as no final decree has
been pronounced or judgment rendered in any suit heretofore
instituted in this Court against a state, the question of
proceeding to a final decree will be considered as not conclusively
settled, until the cause shall come on to be heard in chief.
MR. JUSTICE BALDWIN did not concur in the opinion of the Court
directing the order made in this cause.
The subpoena in this cause having been returned executed sixty
days before the return day thereof, and the defendant having failed
to appear, it is, on motion of the complainant, decreed and ordered
that the complainant be at liberty to proceed
ex parte,
and it is further decreed and ordered that unless the defendant,
being served with a copy of this decree sixty days before the
ensuing August term of this Court, shall appear on the second day
of the next January term thereof and answer the bill of the
complainant, this Court will proceed to hear the cause on the part
of the complainant and to decree on the matter of the said
bill.
