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United States, shall be the supreme law of the land.” This “law of the land" does not govern the case at bar, for nothing in the Constitution itself, or in any act of Congress, even hints the propriety of the alleged cause of action. It follows that the suit at bar is a distinctively Federal cause only because the status of the parties permits its institution in the Supreme Court. It is not distinctively Federal in the sense that a peculiar principle of Federal law governs its adjudication.

International law is the proper “law of the land” in cases like this one, and it could be applied as well by a State as a Federal court.

The Supreme Court has, indeed, asserted its right to administer private as well as public international law, uncontrolled by State decisions.1 But all this means is that the Court will determine any cause brought before it upon principles which ought to govern the action of a State court hearing a like cause.

In fine, while the Federal jurisdiction of suits between States is practically exclusive, inasmuch as in no other forum can one State be sued by another against its will, the jurisdiction of suits by a State or its citizens against citizens of another State is alternative. It simply assures an impartial adjudication of causes which State courts are legally competent to determine. As Justice Bradley said in Burgess v. Seligman:

“ The very object of giving to the national courts jurisdiction to administer the laws of the States in controversies between citizens of different States was to institute independent tribunals which it might be supposed would be unaffected by local prejudices and sectional views.”

And in exercising this alternative jurisdiction the Fed. eral court is supposed to reach the conclusion a State court ought to reach, through the application of principles which the State court ought to expound. 51.

We are now in a position to consider the proper judgment of the Supreme Court in the case at bar.

So far as the alleged cause of action is made to depend upon a disregard of the peculiar laws of Washington it is

Huntingdon v. Attrill, (1892) 146 U. S. 683. 2 (1882) 107 U. S. 34.

1

plainly without merit, for these laws impose no obligation in New Jersey. The allegation that the Securities Com . pany

“ violates and evades” these laws does not convey a legal meaning, for the reason that so long as the Company does no business in Washington its attitude towards the State's corporation laws cannot properly be termed hostile or evasive, but is essentially indifferent.

A corporation or a citizen of one State, however, may owe duties to another not strictly imposed by the peculiar laws or policies of the latter, but implied from the general principles of international law, and we must inquire whether these have been violated by the Company.

Courts have declined to recognize agreements in furtherance of schemes for breaking the laws of another State, but a court might refuse to recognize a contract as creating a private obligation, and yet consistently decline to entertain a suit by a foreign government to enjoin performance, deeming such an action barred by the rule against the judicial enforcement of the political rights of a foreign sovereign. The Supreme Court of Massachusetts refused to recognize a contract for the purchase of liquor destined to be sold in Maine in violation of a prohibitory law?; but we may assume that it would not have entertained a suit by the State of Maine to enjoin the transaction. I make these observations simply to show that even if the transaction in the case at bar could have been dis. solved in a private suit, for the reason among others that it contemplated the infraction of a State's policy, the fact might not strengthen a suit brought by that State, which is bound to prove an invasion of its private, as distinguished from its political rights. 3

The comparatively few cases in which a State has appeared before the Supreme Court as complainant in an original suit, though somewhat variant in their objects, include none like the case at bar; yet a scrutiny of them shows that in reciting the public ownership of institutions and lands, and the collective interests of large bodies of individuals Washington presents interests susceptible of being injured by acts originating in another State, and, if

Kennett v. Chambers (1852), 14 How. 38.
? Graves v. Johnson (1892), 156 Mass. 210.

3 See S. 33.

injured, entitled to the protection of the Court.1 But the scrutiny also warrants the proposition, which indeed needs no precedents to approve its merit, that a State seeking to convict a citizen of another State of a breach of duty must prove a direct and appreciable injury to the person or thing alleged to be affected.

The complainants' case, already weakened by withdrawing all support based on peculiar State law and policy, is discredited by applying the broad principle of law, that a damage amounting to a legal injury must be direct, not remote; real, not conjectural. The grievance of Washington is an apprehension that a company in New Jersey will elect directors of corporations in Wisconsin and Minnesota, who will appoint officials who might so administer railways in Washington as to increase the cost of supplies to public institutions, diminish the profits of individual producers and retard the useful development of public lands. Here is an apprehension linked by anticipated steps to a conjectural conclusion of indefinite import. According to the rule which governs the suits of State and individual alike, the grievance is at most a damage without injury.

52. When we have found that neither the written law of Washington, nor any general principle of international law justifies this suit we perceive its real meaning. The Governor of the State, through his Attorney. General, requests the Supreme Court to restrain three foreign corpo. rations (practically to dissolve one of them) because they disregard what is in his opinion a “policy” of Washington. This opinion, as we have seen, is not clearly supported by the legislature and the judiciary of the State, and, even if it were, the established “policy” of Washington does not measure the rights and rule the conduct of persons in other States.

If anything be needed to demonstrate the spectacular nature of this suit, it must be borne in mind that should the chief apprehension of Washington be realized in an unreasonable increase of railway rates, it is entitled to institute proceedings for their reduction.2

CARMAN F. RANDOLPH.

1

See Missouri v. Illinois (1901) 180 U. S. 208.

2 See S. 39.

ARE FRANCHISES AFFECTED BY CHANGE

OF SOVEREIGNTY?

Questions arising from the annexation of territory resulting from the Spanish War continue to present themselves and demand a solution. The reports of the War Department, the opinions of the Attorney-General, and a very notable volume of reports made to the Secretary by Judge Magoon, Law Officer of the Division of Insular Affairs in the War Department, are full of interest to the student of international relations, as well as to the student of those constitutional privileges and limitations that have heretofore been at once the safeguard of the individual against misgovernment and of the Nation against the strain of passing exigencies. It is one of the great advantages of the American lawyer that he can contribute to the solution of political problems and aid in the development of free and enlightened government, by reason of the admirable doctrine recognized in our jurisprudence that the interpretation of constitutional provisions and their application to the varying vicissitudes of progress lie ultimately with the Judiciary.

It behooves the profession, then, to take a deeper interest than that of a newspaper reader in the many questions which inevitably accompany the vast and sudden enlargement of our national boundaries, bringing under our sovereignty and jurisdiction, and under the protection of our laws, immense territories, including a good number of cities and maritime ports having commercial relations with every part of the globe and a large population hitherto governed under a system of laws materially differing from ours. To this gigantic task, so novel to our experience and complicated by the temporary military occupation of Cuba in the discharge of a trust, voluntarily undertaken and nobly performed, to preserve it and administer its affairs until its own people could establish an orderly government of their own, the officials of our Government have given the most intelligent

and conscientious care. That they should occasionally require the aid of the Bar and of the Judiciary to guide them in their wanderings through such a labyrinth and bring them back to safe bearings, is no criticism of their course, but merely a recognition of mortal limitations. What influence for evil a strained interpretation of governmental privileges may have as a precedent for the future, can perhaps be better seen and pointed out by the disinterested student and observer than by those whose interests are involved in the immediate outcome of the doubtful question, and for that reason the situations created by these new conditions are eminently appropriate subjects for presentation in legal reviews.

The Treaty of Paris provided that the cession of territory should not “ in any respect impair the property or rights which by law belong to the peaceful possession of property of all kinds, of provinces, municipalities, public or private establishments, ecclesiastical or civic bodies, or any other associations having legal capacity to acquire or possess property in the aforesaid territories, or of private individuals, of whatsoever nationality such individuals may be."

One of the interesting questions having reference to the stipulation just quoted, is the vitality of franchises granted by the Spanish Government within the several territories ceded to the United States by the Treaty.

A few actual instances will best present the difficulties of the situation.

Earliest and briefest is the case of the Australian and China Telegraph Company, a British corporation, which had received from the Spanish Government a guaranty against the landing of other cables and a contract for fixed subsidies, in return for the investment of a large capital outlaid in laying several submarine cables connecting various points in the Philippine Islands with Chinese ports. The cable wascut by the naval forces of the United States, and an application for relief was met by a denial of any right to compensation; but a recommendation by President McKinley that " as an act of equity and comity, provision be made by the Congress for reimbursement of the actual expense incurred in the repair of the cables " resulted in an appropriation as suggested. The further question was presented :

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