Supreme Court as could be brought against ambassadors, "and original, but not exclusive, jurisdiction of all suits brought by ambassadors, or other public ministers, or to which a consul, or vice-consul shall be a party," Mr. Chief Justice Waite, speaking for a unanimous court, said: It thus appears that the first Congress, in which were many who had been leading and influential members of the convention, and who were familiar with the discussions that preceded the adoption of the Constitution by the States and with the objections urged against it, did not understand that the original jurisdiction vested in the Supreme Court was necessarily exclusive. That jurisdiction included all cases affecting ambassadors, other public ministers and consuls, and those in which a State was a party. The evident purpose was to open and keep open the highest court of the nation for the determination, in the first instance, of suits involving a State or a diplomatic or commercial representative of a foreign government. So much was due to the rank and dignity of those for whom the provision was made; but to compel a State to resort to this one tribunal for the redress of all its grievances, or to deprive an ambassador, public minister or consul of the privilege of suing in any court he chose having jurisdiction of the parties and the subject matter of his action, would be, in many cases, to convert what was intended as a favor into a burden.1 The Chief Justice and his brethren were of opinion that the purpose of the framers of the Constitution would be subserved if the parties entitled to invoke the original jurisdiction of the Supreme Court could not be made defendants in another tribunal. Thus, the Chief Justice said: Acting on this construction of the Constitution, Congress took care to provide that no suit should be brought against an ambassador or other public minister except in the Supreme Court, but that he might sue in any court he chose that was open to him. As to consuls, the commercial_representatives of foreign governments, the jurisdiction of the Supreme Court was' made concurrent with the District Courts, and suits of a civil nature could be brought against them in either tribunal. . . . In this way States, ambassadors, and public ministers were protected from the compulsory process of any court other than one suited to their high positions, but were left free to seek redress for their own grievances in any court that had the requisite jurisdiction. No limits were set on their powers of choice in this particular. This, of course, did not prevent a State from allowing itself to be sued in its own courts or elsewhere in any way or to any extent it chose.2 After an examination of the precedents, Mr. Chief Justice Waite thus concluded the portion of the opinion material to the present purpose: In view of the practical construction put on this provision of the Constitution by Congress at the very moment of the organization of the gov '111 U. S., 464. "Ibid., 464-5. Confusion over Political v. Judicial Questions ernment, and of the significant fact that from 1789 until now no court of the United States has ever in its actual adjudications determined to the contrary, we are unable to say that it is not within the power of Congress to grant to the inferior courts of the United States jurisdiction in cases where the Supreme Court has been vested by the Constitution with original jurisdiction. It rests with the legislative department of the government to say to what extent such grants shall be made, and it may safely be assumed that nothing will ever be done to encroach upon the high privileges of those for whose protection the constitutional provision was intended. At any rate, we are unwilling to say that the power to make the grant does not exist.1 In the Federal Convention which adopted the Constitution, it was proposed to establish a council of revision to pass upon the acts of the State legislatures and upon those of the Congress, and, in appropriate cases, to negative the acts of each. Omitting details and the various forms which this proposition assumed, it is sufficient for present purposes to state that, in each instance, this body was to be composed in part of the national judiciary, thus investing its members with political functions. This proposition, in various forms and at various times, was urged upon the Convention by the ablest members, such as Messrs. Madison, Wilson, and Ellsworth. The Convention, however, wiser than its wisest members, insisted upon the separation of judicial and political powers, and, after much debate and deliberation, rejected the proposition, for the very substantial reasons contained in a few of the many passages which could be quoted from Mr. Madison's Notes of the debates. 1. 2. 3. 4. Mr. Ghorum did not see the advantage of employing the Judges in this way. As Judges they are not to be presumed to possess any peculiar knowledge of the mere policy of public measures. Mr. Gerry did not expect to see this point which had undergone full discussion, again revived. . . The motion was liable to strong objections. It was combining & mixing together the Legislative & the other departments. It was establishing an improper coalition between the Executive & Judiciary departments. It was making Statesmen of the Judges; and setting them up as the guardians of the Rights of the people. It was making the Expositors of the Laws, the Legislators which ought never to be done. Mr. Strong thought with Mr. Gerry that the power of making ought to be kept distinct from that of expounding, the laws. No maxim was better established. The Judges in exercising the function of expositors might be influenced by the part they had taken, in framing the laws. Mr. L. Martin considered the association of the Judges with the Executive as a dangerous innovation; . . . A knowledge of Mankind, and of Legislative affairs cannot be presumed to belong in a higher degree to the Judges than to the Legislature. And as to the Constitutionality of the laws, that point will come before the Judges in their proper official charac'111 U. S., 469. 5. 6. 7. ter. In this character they have a negative on the laws. Join them with the Executive in the Revision and they will have a double negative. Mr. Gerry had rather give the Executive an absolute negative for its own defence than thus to blend together the Judiciary & Executive departments. It will bind them together in an offensive and defensive alliance agst. the Legislature, and render the latter unwilling to enter into a contest with them. Mr. Ghorum. All agree that a check on the Legislature is necessary. But there are two objections agst, admitting the Judges to share in it which no observations on the other side seem to obviate. The 1st. is that the Judges ought to carry into the exposition of the laws no prepossessions with regard to them. 24. that as the Judges will outnumber the Executive, the revisionary check would be thrown entirely out of the Executive hands, and instead of enabling him to defend himself, would enable the Judges to sacrifice him. Mr. Rutlidge thought the Judges of all men the most unfit to be concerned in the revisionary Council. The Judges ought never to give their opinion on a law till it comes before them. He thought it equally unnecessary. The Executive could advise with the officers of State, as of war, finance &c. and avail himself of their information and opinions.1 8. Mr. Sherman. Can one man be trusted better than all the others if they all agree? This was neither wise nor safe. He disapproved of Judges meddling in politics and parties.2 It was clearly the intention of the framers that the judiciary should not busy itself with politics, and repeated decisions of the Supreme Court have given effect to their intention, that the judicial power does not extend to political questions. Controversies between States were not justiciable before the Constitution of the United States. They were political questions, and as such they were not submitted, or were not regarded as capable of submission, to a court of justice. This fact was adverted to by Mr. Justice. Bradley in Hans v. Louisiana (134 U. S., 1, 15), decided in 1889; who said, on behalf of the court: The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Had he stopped here, questions at that time considered political would have remained so, but he adds: Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. Documentary History of the Constitution, Vol. III, pp. 391-9. Session of July 21st. Ibid., p. 539. Session of August 15th. How Questions The distinction, therefore, is not hard and fast. Things political may become justiciable, and therefore submitted to a court for decision; and the question arises, how this transformation may be brought about. Fortunately, we do not need to indulge in speculative or theoretical reasoning, for we have on this very point the authority of the Supreme Court of the United States, showing (1) how political power, vested originally in the crown, became judicial by submission to courts of justice; (2) that controversies between the colonies, settled as such by the King in Council because they had no other common superior, became by the same process judicial when submitted to a court of justice; and (3), that the agreement by the States of the American Union to submit their controversies to courts of justice made them justiciable. In Rhode Island v. Massachusetts (12 Peters, 657), decided in 1838, this whole question was examined, the distinction between judicial and political questions outlined and defined and the process by which questions, originally political, could become justiciable, and therefore judicial, stated and applied. In proof of the first of these contentions, Mr. Justice Baldwin, delivering the opinion of the court in this case, quotes an early English statute and Coke's Institutes, of hardly less authority. The learned Justice quotes the statute of 20 Edward III, Chapter I. The passages from Coke's Institutes, referring to and summarizing this among other statutes, are as follows: First, where Bracton saith, Habet rex plures curias in quibus diversae actiones terminantur; Hereby, and in effect by Britton, and this conclusion followeth, that the King hath committed and distributed all his whole power of judicature to severall Courts of Justice, and therefore the judgement must be ideo consideratum est per Curiam. And herewith do agree divers Acts of parliament and Book cases, some whereof, for illustration, we will briefly remember; and leave the judicious reader to the rest. 8 H. 4. the King hath committed all his power judiciall, some in one Court, and some in another, so as if any would render himselfe to the judgement of a King in such case where the king hath committed all his power judiciall to others, such a render should be to no effect. An 8 H. 6. the king doth judge by his Judges (the king having distributed his power judiciall to several Courts) And the king hath wholly left matters of judicature according to his lawes to his Judges.1 Therefore, as the interpretation of an agreement is a judicial question, the compact between Penn and Lord Baltimore concerning the boundaries of Pennsylvania, Delaware and Maryland was referred to a court of justice, because it was an agreement, and to that particular court of justice called the High Court of Chancery, because that tribunal alone enforced the specific 1 Sir Edward Coke, The Fourth Part of the Institutes of the Laws of England, 1644, pp. 70-71. performance of an agreement, as prayed by Penn in that case. Where there was no agreement, the king in council took jurisdiction and decided by virtue of his political prerogative, with the advice of his members, who sat as advisers. From the detailed and closely knit argument of Mr. Justice Baldwin the following passage may be quoted, as showing the process by which he reached his conclusion, as well as the conclusion itself: The king had no jurisdiction over boundary within the realm, without he had it in all his dominions, as the absolute owner of the territory, from whom all title and power must flow, 1 Bl. Com. 241; Co. Litt. 1; Hob. 322; 7 D. C. D. 76; Cowp. 205-11; 7 Co. 17, b., as the supreme legislator; save a limited power in parliament. He could make and unmake boundaries in any part of his dominions, except in proprietary provinces. He exercised this power by treaty, as in 1763, by limiting the colonies to the Mississippi, whose charters extended to the South sea; by proclamation, which was a supreme law, as in Florida and Georgia, 12 Wheat. 524; 1 Laws U. S. 44351; by order in council, as between Massachusetts and New Hampshire, cited in the argument. But in all cases it was by his political power, which was competent to dismember royal, though it was not exercised on the chartered or proprietary provinces. M'Intosh v. Johnson, 8 Wheaton, 580. In council, the king had no original judicial power, 1 Ves. sen. 447. He decided on appeals from the colonial courts, settled boundaries, in virtue of his prerogative, where there was no agreement; but if there is a disputed agreement, the king cannot decree on it, and therefore, the council remit it to be determined in another place, on the foot of the contract, 1 Ves. sen. 447. In virtue of his prerogative, where there was no agreement, 1 Ves. sen. 205, the king acts not as a judge, but as the sovereign acting by the advice of his counsel, the members whereof do not and cannot sit as judges. By the statute 20 E. 3, ch. 1, it is declared, that "the king hath delegated his whole judicial power to the judges, all matters of judicature according to the laws," 1 Ruff. 246; 4 Co. Inst. 70, 74; he had, therefore, none to exercise: and judges, though members of council, did not sit in judicature, but merely as his advisers.1 And after an elaborate examination of English precedent and cases, including the judicial interpretation of compacts between nations, Mr. Justice Baldwin concluded: From this view of the law of England, the results are clear, that the settlement of boundaries by the king in council, is by his prerogative; which is political power acting on a political question between dependent corporations or proprietaries, in his dominions without the realm. When it is done. in chancery, it is by its judicial power, in "judicature according to the law," and necessarily a judicial question, whether it relates to the boundary of provinces, according to an agreement between the owners, as Penn v. Baltimore [1 Ves. sen. 448]; the title to a feudal kingdom, in a suit appropriate 1 12 Peters, 739. |