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or judicial decree or decision of any State could justify it." In as much as the rebellious States had never in point of law ceased to be members of the Union, the acts of the several members of the Confederacy, in so far as they were not contrary to their allegiance to the Union nor in violation of rights under the Constitution were treated as valid and binding, Keith v. Clark (1879), 97 U. S. 454. "The existence of a state of insurrection and war did not loosen the bonds of society or do away with civil government," Horn v. Lockhart (1873), 17 Wallace, 570. For further discussion of the status of the Confederacy and its members during the Civil War and the legal consequences of their acts, see Thorington v. Smith (1868), 8 Wall. 1; Miller v. United States (1870), 11 Wall. 268; Delmas v. Insurance Co. (1872), 14 Wall. 661; Gunn v. Barry (1873), 15 Wall. 610; Sprott v. United States (1874), 20 Wall. 459; Dewing v. Perdicaries (1877), 96 U. S. 193; Ford v. Surget (1878), 97 U. S. 594; Baldy v. Hunter (1898), 171 U. S. 388; Oakes v. United States (1898), 174 U. S. 778.
Interstate Relations.-The States are forbidden without the consent of Congress "to enter into any agreement or compact with another State or with a foreign power." This clause received extended consideration for the first time in Holmes v. Jennison (1840), 14 Peters, 540, which involved the question as to whether the State of Vermont could, without the consent of Congress, recognize the extradition proceedings of the Dominion of Canada and surrender a fugitive from justice. The court was evenly divided on the principal question and it remained undetermined. The constitutional provision was again fully discussed in Virginia v. Tennessee (1893), 148 U. S. 501. The two States had jointly appointed commissioners to survey and fix their boundary line, and subsequently adopted the boundary so ascertained. The Court held that such action did not contravene the Constitution and expressly stated that "there are many matters upon which different States may agree that can in no respect concern the United States." The implication is that such agreements are valid without the consent of Congress. The Constitution makes no requirement as to the manner in which Congress shall sanction an agreement or compact. Its consent may be manifested by the adoption or approval of proceedings taken under the agreement, Wharton v. Wise (1894), 153 U. S. 155, or by itself taking action which the agreement, if sanctioned, was intended to bring about, Green v. Biddle (1823), 8 Wheaton, 1, 85. Most of the agreements between States to which Congress has assented relate to boundaries. See Bruce, The Compacts and Agreements of States with One Another and with Foreign Powers, Minnesota Law Review, II, 500.
The Constitution provides that "a person charged in any State with treason, felony or other crime who shall flee from justice and be found in another State shall, on demand of the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime." It was evidently contemplated that the "right of asylum," the source of so many international controversies, should not exist as between the States of the Union, but as the provision is not self-executing, since it does not specify the authority upon whom the demand is to be made nor the form of the demand nor
the manner of recovering the fugitives, and as Congress has ever enacted adequate legislation for its execution, a fugitive's quest for a friendly Governor who will refuse to surrender him, as in the case of the persons charged with the murder of Governor Goebel of Kentucky, is not an unknown spectacle. The constitutional provision is mandatory and does not suggest that the authority upon whom demand for the surrender of the fugitive is made should himself determine the fugitive's guilt or whether, if surrendered, he will receive a fair trial. But a governor upon whom demand is made for the surrender of a fugitive may require satisfactory proof that the fugitive was present in the demanding State at the time his alleged offense was committed, Hyatt v. Corkran (1903), 188 U. S. 691; that he is really a fugitive from the justice of the demanding State, Ex parte Reggel (1885), 114 U. S. 642; and that he is substantially charged with a crime against the laws of the State from which he is alleged to have fled, Roberts v. Reilly (1885), 116 U. S. 80. Rendition may be demanded for any violation of a State's criminal laws, Taylor v. Taintor (1872), 16 Wallace, 375. The process of recovering fugitives who have taken refuge in another State is commonly, but inaccurately, described as extradition. International extradition is based upon treaty engagements between independent nations, while the interstate rendition provided for in the Constitution is one of the means of making the Union more perfect, of establishing justice and of assuring domestic tranquillity. If the States fail to assist each other to the extent provided in this clause, the prompt and efficient administration of their criminal laws is impossible. The language of some of the cases stating that this clause is in the nature of a treaty stipulation is based upon a misapprehension of its function. The matter is well discussed in Lascelles v. Georgia (1893), 148 U. S. 537. Doubt as to the authority of Congress to enact legislation in execution of this clause was once expressed, but long acquiescence in the contemporary construction embodied in the act of 1793, 1 Stat. 302, has resolved the doubt in favor of the necessary authority, Roberts v. Reilly (1885), 116 U. S. 80. The act makes it the duty of the governor of the State or Territory where the fugitive may be to arrest and deliver him to the agent of the State or Territory from which he fled, but the duty cannot be enforced by mandamus, Kentucky v. Dennison (1860), 24 Howard, 66. The validity of the arrest may be examined in habeas corpus proceedings either by a Federal court, Roberts v. Reilly (1885), 116 U. S. 80, or by the courts of the State where the arrest was made, Robb v. Connelly (1884), 111 U. S. 624. If the governor orders an arrest after receiving conclusive evidence that the person arrested is not a fugitive, the court will order the prisoner to be discharged, Hyatt v. Corkran (1903), 188 U. S. 691. The motive which prompted a person to leave a State does not determine whether he is a fugitive, Drew v. Thaw (1914), 235 U. S. 432. It is enough that he has left the State where his alleged crime was committed. The fact that the fugitive does not believe that he has violated the criminal laws of the State from which he fled is not material, Appleyard v. Massachusetts (1906), 203 U. S. 222. A fugitive, upon his return to the State from which he fled, may be tried not only for the offense for which his
return was demanded, but also for any other offense against the laws of the demanding State, Lascelles v. Georgia (1893), 148 U. S. 537. A fugitive who has been abducted from a foreign country with which the United States has an extradition treaty is subject to trial in the State from which he fled, Ker v. Illinois (1886), 119 U. S. 436, and so also of a fugitive who has been abducted from one State to another, Mahon v. Justice (1888), 127 U. S. 700, or whose surrender has been obtained by fraud and connivance, Pettibone v. Nichols (1906), 203 U. S. 192. The classic treatment of this subject is John Bassett Moore, A Treatise on Extradition and Interstate Rendition.
The Constitution provides that "full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof." Neither the Federal nor the State courts are under any constitutional duty to give effect to judgments of the courts of foreign countries. If they do so it is because of comity, Aetna Life Insurance Co. v. Tremblay (1912), 223 U. S. 185. This clause must be interpreted in the light of other provisions of the Constitution and no State can obtain in another jurisdiction full faith and credit for any of its judicial proceedings which are lacking in that due process of law which the Constitution requires, Old Wayne Mutual Life Association v. McDonough (1907), 204 U. S. 8. The relation of the two parts of the constitutional provision as to due faith and credit was thus described in M'Elmoyle v. Cohen (1839), 13 Peters, 312, 326: "It must be obvious, when the Constitution declared that full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State, and provides that Congress may, by general laws, prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof, that the latter clause, as it relates to judgments, was intended to provide the means of giving to them the conclusiveness of judgments upon the merits, when it is sought to carry them into judgments by suits in the tribunals of another State. The authenticity of a judgment and its effect depend upon the law made in pursuance of the Constitution; the faith and credit due to it as the judicial proceeding of a State is given by the Constitution, independently of all legislation." If it were not for this provision in the Constitution, the judgments of State courts, like the judgments of the courts of foreign countries, would be examinable when sued on in the courts of another State, Hilton v. Guyot (1895), 159 U. S. 113. "The effect of this clause is to put the judgment of the court of one State, when sued upon, or pleaded in estoppel, in the courts of another State, upon the plane of a domestic Judgment in respect of conclusiveness as to the facts adjudged," Bigelow v. Old Dominion Copper, &c. Co. (1912), 225 U. S. 111. Hence the decree of a State court has the same effect in other States which it has in the State where rendered. Cheever v. Wilson (1869), 9 Wallace, 123. Obviously it can have no greater effect, Robertson v. Pickrell (1883), 109 U. S. 610. The decree of a court is entitled to full faith and credit in other States only when it had jurisdiction to make the decree. Thompson v. Thompson (1913), 226 U. S. 551.
Hence a decree of divorce rendered by the court of a State where neither party to the divorce had a domicile is not entitled to faith and credit in other States, Bell v. Bell (1901), 181 U. S. 175. A decree of divorce obtained in South Dakota by a citizen of Massachusetts was refused recognition in Massachusetts on the ground that the residence in South Dakota was not bona fide but was in fraud of the laws of Massachusetts and therefore the court of South Dakota had no jurisdiction, Andrews v. Andrews (1903), 188 U. S. 37. For further discussion of the interstate recognition of decrees of divorce see Atherton v. Atherton (1901), 181 U. S. 155, and Haddock v. Haddock (1906), 201 U. S. 562. A decision made by a court without jurisdiction is without due process and is void not only in other States, but in the State where made, Pennoyer v. Neff (1877), 95 U. S. 714. "The courts of the United States are bound to give to the judgments of the State courts the same faith and credit that the courts of one State are bound to give to the judgments of the courts of her sister States," Cooper v. Newell (1899), 173 U. S. 553. A good brief discussion of the full faith and credit clause is contained in Burdick, The Law of the American Constitution, 475-481.
SECTION 2. INHERENT AND IMPLIED POWERS OF THE FEDERAL GOVERNMENT.
MCCULLOCH v. THE STATE OF MARYLAND ET AL.
SUPREME COURT OF THE UNITED STATES. 1819.
Error to the Court of Appeals of the State of Maryland. [In 1816, Congress incorporated the Bank of the United States, which in 1817 established a branch in Baltimore. In 1818 the Legislature of Maryland passed "An Act to impose a Tax on all Banks, or Branches thereof, in the State of Maryland, not chartered by the Legislature." McCulloch, the cashier of the branch in Baltimore, having issued notes upon unstamped paper in violation of this act, this suit was brought against him. In the course of the argument both the power of Congress to incorporate a bank and the power of a State to tax such a bank were called in question.]
MARSHALL, Ch. J., delivered the opinion of the court.
In the case now to be determined, the defendant, a sovereign state, denies the obligation of a law enacted by the legislature of the Union; and the plaintiff, on his part, contests the validity of an act which has been passed by the legislature of that state.
The constitution of our country, in its most interesting and vital parts, is to be considered; the conflicting powers of the government of the Union and of its members, as marked in that constitution, are to be discussed; and an opinion given, which may essentially influence the great operations of the government. No tribunal can approach such a question without a deep sense of its importance, and of the awful responsibility involved in its decision. But it must be decided peacefully, or remain a source of hostile legislation, perhaps of hostility of a still more serious nature; and if it is to be so decided, by this tribunal alone can the decision be made. On the supreme court of the United States has the constitution of our country devolved this important duty.
The first question made in the cause is, has congress power to incorporate a bank? It has been truly said, that this can scarcely be considered as an open question, entirely unprejudiced by the former proceedings of the nation respecting it. The principle now contested was introduced at a very early period of our history, has been recognized by many successive legislatures, and has been acted upon by the judicial department, in cases of peculiar delicacy, as a law of undoubted obligation.
It will not be denied, that a bold and daring usurpation might be resisted, after an acquiescence still longer and more complete than this. But it is conceived that a doubtful question, one on which human reason may pause, and the human judgment be suspended, in the decision of which the great principles of liberty are not concerned, but the respective powers of those who are equally the representatives of the people, are to be adjusted, if not put at rest by the practice of the government, ought to receive a considerable impression from that practice. An exposition of the constitution, deliberately established by legislative acts, on the faith of which an immense property has been advanced, ought not to be lightly disregarded.
The power now contested was exercised by the first congress elected under the present constitution. The bill for incorporating the Bank of the United States did not steal upon an unsuspecting legislature, and pass unobserved. Its principle was completely understood, and was opposed with equal zeal and ability. After being resisted, first in the fair and open field of debate, and afterwards in the executive cabinet, with as much persevering talent as any measure has ever experienced, and be