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Common Law Vs. International Law Adjective Rules in the Original Jurisdiction James E

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Common Law Vs. International Law Adjective Rules in the Original Jurisdiction James E Hastings Law Journal Volume 20 | Issue 1 Article 1 1-1968 Common Law vs. International Law Adjective Rules in the Original Jurisdiction James E. Beaver Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation James E. Beaver, Common Law vs. International Law Adjective Rules in the Original Jurisdiction, 20 Hastings L.J. 1 (1968). Available at: https://repository.uchastings.edu/hastings_law_journal/vol20/iss1/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. Common Law vs. International Law Adjective Rules in the Original Jurisdiction By JAMES E. BFVEAY* [W e are generally men of untaught feeling; . instead of cast- ing away all our old prejudices, we cherish them to a very consider- able degree ... and the longer they have lasted, and the more gener- ally they have prevailed, the more we cherish them. We are afraid to put men to live and trade each on his own private stock of reason; because we suspect that this stock in each man is small, and that the individuals would be better to avail themselves of the general bank and capital of nations, and of ages. Many of our men of speculation, instead of exploding general prejudices, employ their sagacity to dis- cover the latent wisdom which prevails in them .... [P]rejudice, with its reason, has a motive to give action to that reason, and an affection which will give permanence. Prejudice is of ready applica- tion in the emergency; it previously engages the mind in a steady course of wisdom and virtue; and does not leave the man hestitating in the moment of decision, skeptical, puzzled, and unresolved. Preju- dice renders a man's virtue his habit; and not a series of unconnected acts. Through just prejudice, his duty becomes a part of his nature. -Edmund Burke, Reflections on The Revolution in France 102-03 (II Select Works, Oxford, 1877). A Preliminary Appraisal C ONTROVERSIES between and among states of the United States, in the original jurisdiction of the United States Supreme Court,' involve quasi sovereigns. Quasi because, while the several states were recognized and long acknowledged as in many respects *Associate Professor of Law, University of Washington. 1 For a thorough and very useful list of cases in which the Court has written an opinion, see Comment, 11 STAN. L. Ray. 665, 708-18 (1959). The same jurisdiction applies in suits by the United States against a state; though not conferred by Article III in express words, it is inherent in the constitu- tional plan. United States v. Texas, 339 U.S. 707, 710 (1950); United States v. Louisiana, 339 U.S. 699, 701 (1950); United States v. Minnesota, 270 U.S. 181, 195 (1926); United States v. Michigan, 190 U.S. 379, 396 (1903); United States v. Texas, 143 U.S. 621, 641-46 (1892); see Principality of Monaco v. Mississippi, 292 U.S. 313, 329 (1934); Oklahoma v. Texas, 258 U.S. 574, 581 (1922); Minnesota v. Hitchcock, 185 U.S. 373, 384-86 (1902). THE HASTINGS LAW JOURNAL [VOL. 20 "sovereign and independent,"'2 this sovereignty, if it now exists at all,' was abdicated to a certain extent upon ratification of the Constitution of 1787.4 Full development of the ramifications of this renunciation 2 Kansas v. Colorado, 206 U.S. 46, 80 (1907); United States v. Lee, 106 U.S. 196, 208 (1882); A. DE TOCQUEVImLE, DEmocRAcY in AmMEICA 51-53 (G. Lawrence transl. 1966): "W/henever the political laws of the United States are to be discussed, it is with the doctrine of the sovereignty of the people that we must begin." Compare South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (Warren, C.J.) ("Federal Government, the ultimate parens patriae of every American citizen"); In re Debs, 158 U.S. 564, 599 (1895); Keith v. Clark, 97 U.S. 454, 476 (1878) ("The people of the United States, as one great political community"); Lane County v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1868) (Chase, C.J.) ("a more perfect union" created by interposing a central power acting "directly upon the citizens, instead of ... only upon the States"), with McCready v. Virginia, 94 U.S. 391, 394 (1876) (Waite, C.J.) (ownership of fisheries "is that of the people [of the state] in their united sovereignty"); Ableman v. Booth, 62 U.S. (21 How.) 506, 524 (1858) (Taney, C.J.) (power of federal government vested by "the people of the several States"); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 569 (1832) (concurring opinion) (Constitu- tion formed not "by the people of the United States, nor ... by the states," but "by the people, through their delegates .. to the respective states"). See also New York v. O'Neill, 359 U.S. 1, 6-12 (1959); Feldman v. United States, 322 U.S. 487, 490-91 (1944); Virginia v. West Virginia, 246 U.S. 565, 602 (1918) (White, C.J.) ("an indissoluble union of indestructible States"); 1 W. CaOSSNEY, POLITICS AND THE CoNsTITuTION 610-74 (1953); A. DE RIENCOURT, THE COMING CAESARS 65 (1957) ("The colonists were New Englanders, New Yorkers, or Virginians first and Americans second.") 3 See, e.g., South Carolina v. Katzenbach, 383 U.S. 301, 360 (1966) (Black, J.) (dissenting in part) ("dangerously near to wiping the States out"); Mc- Culloch v. Maryland, 17 U.S. (4 Wheat.) 316, 403 (1819) (Marshall, C.J.) ("No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States."); Kurland, Foreword: "Equal in Origin and Equal in Title to the Legislative and Executive Branches of the Government," 78 HAv. L. REv. 143, 162-67 (1964); 1958 Report of the Conference of Chief Justices, U.S. NEws & WORLD REPORT, Oct. 3, 1958, at 92 et seq.; cf. F. HAYEK, CoNsTrruTIoN or LIBERTY 236-39 (1960). Compare United States v. United Mine Workers, 330 U.S. 258 (1947) with In re Green, 369 U.S. 689 (1962) (courts of the United States apparently entitled to greater respect than courts of the several states). But see E. RosTow, THE SOVREIaN PREROGATIVE xiii, XV, xvii, ch. 1 passim (1962); Redlich, Foreword: The Constitution---"A Rule for the Government of Courts, as Well as of the Legislature," 40 N.Y.U.L. REv. 1, 6-8 (1965). 4 Thus, the United States may sue states in the original jurisdiction. Au- thorities cited note 1 supra. The states, however, may not sue the United States without its consent. E.g., Louisiana v. McAdoo, 234 U.S. 627, 628-29 (1914); Kansas v. United States, 204 U.S. 331, 343 (1907); Oregon v. Hitchcock, 202 U.S. 60, 70 (1906). See Arizona v. California, 298 U.S. 558, 568 (1936). Any controversy in which the United States, as plaintiff, sues a state, "is not a controversy between equals .... ." In fact, its right to sue may some- times be "on the footing of an ultimate sovereign interest .... " Sanitary Dist. v. United States, 266 U.S. 405, 425 (1925) (Holmes, J.). See In re Ayres, 123 November 1968] ORIGINAL JURISDICTION ADJECTIVE RULES 3 of sovereignty 5 and diffusion of competencies between two species of government, each fully competent over matters entrusted to it, but "neither sovereign with respect to the objects committed to the oth- er,"6 would be digressive. Of high significance for purposes of this article, however, is the voluntary relinquishment of the sovereign power to settle controversies by waging war,7 entering compacts,8 and the like.9 The "highly important"'1 dispute-settling power was vested U.S. 443, 505 (1887) (individuals and state); Choctaw Nation v. United States, 119 U.S. 1, 27-28 (1886) (United States and Indian tribe). But the United States "obviously" is not a state within the meaning of art. III, § 2, cl. 2, so that the mere presence of the United States as a party does not confer original jurisdiction. Ex parte Peru, 318 U.S. 578, 583 n.3 (1943); United States v. West Virginia, 295 U.S. 463, 470 (1935). See generally Missouri v. Holland, 252 U.S. 416, 433, 435 (1920) (Holmes, J.). 5 See, e.g., Texas v. White, 74 U.S. (7 Wall.) 700, 725 (1868); 1 BLAcx- STONE, CoMnENTARIES *49; THE FEDERaAST No. 45 (Madison). 6 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 410 (1819) (Marshall, C.J.). 7 U.S. CoNsT. art. I, § 10, cl. 3. The power may have been given up, but armed conflicts nevertheless have been averted on occasion only narrowly. E.g., Oklahoma v. Texas, 258 U.S. 574, 580 (1922); see Nebraska v. Wyoming, 325 U.S. 589, 608 (1945); Virginia v. West Virginia, 246 U.S. 565, 598-600 (1918); Chambers v. Baltimore & O.R.R., 207 U.S. 142, 148 (1907) ("Etlhe right to sue and defend in the courts is the alternative of force . .. [and] is the right conservative of all other rights .... "); Georgia v. Tennessee Copper Co., 206 U.S. 230, 237 (1907); United States v. Texas, 143 U.S. 621, 641 (1892); Burton's Lessee v. Williams, 16 U.S. (3 Wheat.) 529, 538 (1818). 8 U.S. CoNsT. art. I, § 10, cl. 3. The new judicial power in original juris- diction cases was "En] ecessary from the extinguishment of diplomatic relations between the states." Missouri v.
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