EXECUTION OF JUDGMENTS AGAINST

STATES

Reprinted from "The Washington Proceedings of the American Society for the Judicial Settlement of International Disputes," December, 1916.

JUDGMENTS AGAINST STATES

'N the Dred Scott case the parties were a black man

IN

and a white man; the former claiming emancipation from slavery because the latter, as his owner, had taken him from a slave-state to a free-soil state. The case came to the Supreme Court by virtue of its appellate jurisdiction. The judgment of the Supreme Court in favor of the white man as owner of the black man, was in fact a judgment against all the free-soil states, constituting about one half the states of the Union; and it was and is so universally regarded. The attempt to compel the execution of the judgment as a precedent led to the Civil War. The execution of the judgment as a precedent was forever brought to an end by the adoption of the thirteenth, fourteenth and fifteenth amendments to the Constitution.

In the case of Virginia vs. West Virginia the parties were two States of the Union. It was brought in the Supreme Court of the United States as a court of original jurisdiction. The issue involved was whether West Virginia should pay Virginia a less or greater amount of money under a contract between them. A greater amount was adjudged to be due than West Virginia expected, and more than it thinks reasonable. A ques

tion of the compulsory execution of the judgment has thus arisen.

In the Dred Scott case the constitutional rights of the States of the Union were at issue, as well as the fundamental rights of all men to life, liberty, and the pursuit of happiness, of which every state, equally with the Union, is the constitutional guardian. It dealt with tremendous questions, vital to all men and to all sociated groups of men everywhere and in all time.

In the Virginia-West Virginia case, nothing but money is involved. The issues are in no sense fundamental or vital. No constitutional right of any state is affected.

Clearly, the judgment in the Dred Scott case, though rendered in a suit between individuals was, in essence, a judgment against the free-soil states, equally as the judgment in the Virginia-West Virginia case, rendered in a suit between these states, was a judgment against the State of West Virginia. Moreover, considering the vast issues involved in the former case and the insignificant issues involved in the latter, it is reasonable to conclude that issues vital to states may be involved equally in the one class of cases as in the other.

The question of the compulsory execution of the judgments of a court of a federal or federalistic union against a member-state of the Union, therefore, includes a consideration of the compulsory execution both of the indirect judgments rendered against states in suits between individuals and corporations, which we commonly speak of as judgments affecting states' rights; and of the direct judgments rendered in suits to which a state is a party defendant of record.

Moreover, it is important, in such an inquiry, never to minimize the importance of these indirect judgments against states; for a consideration of the principles of federal and federalistic unions will show that the indi

rect jurisdiction of Courts over the member-states is a necessary, permanent, and ineradicable incident of all such unions; and that the direct jurisdiction of Courts over states is not a necessary incident of such unions, but is an expedient which has been adopted only by such federal and federalistic unions as have deemed it suitable to their circumstances, and which has not yet been proved to be capable of universal application.

As illustrating the truth of the proposition that indirect judgments of courts against states are a necessary incident of all kinds of federal or federalistic unions, one may recall, in addition to the Dred Scott case, Calvin's Case, decided in 1607 by an English court, in which the relations of England and Scotland under the union of the two states in the person of King James, as James I of England and James VI of Scotland, were adjudicated in a suit between individuals in their private capacity; the case of Campbell vs. Hall, decided in 1774 by an English court, in which the relations between Great Britain and the American Colonies as members of the federalistic union known as the British Empire, were adjudicated in a suit between individuals -the defendant being sued in an official capacity; and the Insular cases, decided between 1901 and 1912, by American courts and on appeal by the Supreme Court of the United States, in which the relations between the United States and the insular countries under its jurisdiction, together forming a federalistic union to which no name has yet been attached, were adjudicated in suits between individuals and corporations, suing or sued in private or official capacities.

As illustrating the truth of the proposition that it is not necessary that courts in federal or federalistic unions should have direct jurisdiction over the memberstates, and that such arrangements are dictated in each

case by expediency and effectuated by agreement between the states, one may refer to the various federal constitutions, written and unwritten, which have existed and which now exist. Such an examination would reveal few instances in which a direct jurisdiction over states has been conferred on courts. The Constitution of the United States and that of Australia would, indeed, be the most conspicuous examples of federal constitutions in which this jurisdiction is conferred on courts; but under these constitutions, equally with all other federal or federalistic constitutions, the courts also render indirect judgments against the memberstates. The absence of such a provision in the written or unwritten constitution of a federal or federalistic union does not mean that the courts have not jurisdiction over the member-states, but only that they exercise it indirectly.

By the Constitution of the United States, the jurisdiction to render a direct judgment against a memberstate of the Union is confined to the Supreme Court; and for this purpose it is given original jurisdiction. Jurisdiction to render indirect judgments against states exists in all the courts within the United States. The Supreme Court of the United States has jurisdiction to render indirect judgments against states as an incident of its appellate jurisdiction, by virtue of which it reviews, on appeal, writ of error, or certiorari, judgments of the subordinate courts of the United States in all cases within their jurisdiction, and also judgments of the Supreme Courts of the States in cases arising under the Constitution of the United States.

The execution of the direct judgments of the Supreme Court against a state is supervised by that Court directly. In the case of indirect judgments of the Supreme Court against a state by virtue of its appellate

jurisdiction, the Supreme Court remands the case to the court below for judgment in accordance with its decision, and for execution of the judgment so to be rendered; and that court supervises the execution of the judgment. If, however, a state should oppose the execution of such an indirect judgment, the Supreme Court would doubtless participate in supervising the execution in every way permitted by the Constitution and statutes.

The compulsory execution of any judgment of the Supreme Court against a state, whether the judgment be rendered indirectly in an action between individuals or corporations affecting states' rights, or directly in an action to which the defendant state is a party, proceeds on the same general principles. The judgment of the Supreme Court is in both cases an act of the United States; the opposition of a state to the execution of the judgment is in both cases the opposition of the State to an act of the United States. In order, however, to simplify the inquiry, it will be assumed in the following discussion of the nature, the source, the extent, and the manner of exercise of the power of the United States which is exercised in compelling the execution of a judgment of the Supreme Court against a state, that the judgment has been rendered directly against the state in the exercise of the original jurisdiction of the Court.

THE NATURE OF THE POWER OF EXECUTION

In all civilized countries in which the Roman or the English system of law prevails, courts not only hear causes of disputes between individuals or corporations and render judgment, but also take certain action, after judgment, for the purpose of carrying the judgment into effect by compulsion, if compulsion proves