The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
There were many, at the time when the Constitution of the United
States was before the people for ratification, who feared that
the jurisdiction of their courts would be extended by judicial
construction beyond the limits of the grant. New York in her
vote of ratification incorporated a declaration that she
understood it to be impossible that the jurisdiction of any court
of the United States could ever be enlarged "by any fiction." In
the Maryland Convention, this sentiment took shape in a proposed
amendment to the Constitution adopted by a committee appointed
for the purpose, but never reported, "that the Federal courts
shall not be entitled to jurisdiction by fictions or
collusion."[Footnote: Elliot's Debates, 550; Proceedings
Massachusetts Historical Society, XVII, 504-7.] Had such an
amendment been proposed and adopted, it would have cut off a
large share of the most important cases now brought before the
Circuit Courts. In 1787, there were only twenty-seven business
corporations in the United States.[Footnote: Report of the
American Historical Association for 1902, 267; _American
Historical Review_, VIII, 449.] It was not long before they
became countless and the large affairs of the country were in
their hands. Could they sue and be sued in the courts of the
United States? The decision on this point was that, by force of
a pure legal fiction, invented for the purpose, they might be.
They were, indeed, not citizens of any State;[Footnote: Paul
_v._ Virginia, 8 Wallace Reports, 168.] but the persons who
composed them probably were. Therefore, it must be assumed that
they certainly were, and also that they were all citizens of the
same State and that the State from which incorporation was
obtained.[Footnote: Louisville, Cincinnati and Charleston
R. R. Co. _v._ Letson, 2 Howard's Reports, 497, 555; Ohio
and Mississippi R. R. Co. _v._ Wheeler, I Black's Reports,
286.]
Sir Henry Maine maintained that legal fictions were the rude
device of early stages in government, and to add to them
disturbed the symmetry of a legal system and was unworthy the
approval of modern courts.[Footnote: Ancient Law, 26.] But while
they are among the things that it is hard to justify on
principle, it is harder to dispense with them in actual practice,
as the instance given conspicuously illustrates.
Although the United States are the only depositary of the power
of ordering foreign relations, foreign governments are often
aggrieved by acts of the courts of a State which the United
States have but imperfect means of preventing or rectifying.
In 1841, we were brought to the verge of war with Great Britain
by an incident of this nature.
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