The American Revolution and the Emergence of Modern Doctrines of Federalism and Conflict of Laws1327
THE received learning about the history of conflict of laws in America tells us that conflicts rarely, if ever, occurred during the colonial period and that it was only the creation during the War of Independence of a “confederation of states, each of which was legally independent, [that] turned the attention of lawyers to the practical solution of the necessarily resulting conflicts.”1328 Having no other model to which to turn for that “practical solution,” Americans, it is suggested, borrowed doctrinal concepts from Continental law and transplanted them in the New World.1329
A study of conflicts cases arising in the colonial, state, and federal courts of Massachusetts between 1760 and 1830 indicates that the story was much more complex. Conflicts problems did occur in colonial Massachusetts, but they were of a different sort from the problems with which we are familiar today. There was, moreover, a body of English law dealing with the problems, which offered an alternate model upon which modern American conflicts law could have been erected. A central historical question is why that English model was rejected.
After a preliminary inquiry as to why conflicts of the sort with which we are now familiar rarely arose in colonial Massachusetts, this essay will turn to the conflicts which did arise and the legal model under which they were analyzed. Next it will describe the stresses to which that model was subjected during the Revolutionary War years—stresses under which the model broke down. Finally, it will consider the attempt made at the Constitutional Convention to readjust the model to post-Revolutionary American conditions and the ultimate failure of that attempt in the early nineteenth century. A consequence of that failure was that federal-state conflicts and interstate conflicts, which the readjusted model treated as parallel and indistinguishable questions, came to be analyzed as separate problems—the former to be resolved largely as a matter of federal constitutional law and the latter, largely as a matter of state law.
34. Old State House, Boston, by James B. Marston (1801). For many years it served as the seat of the Superior Court of Judicature, and was the heart of the “legal district.” John Adams and other lawyers lived near by. Courtesy Massachusetts Historical Society.
I. English Law in the New World
A. The Legal Unity of the Anglo-American World
Before the War of Independence had fragmented the political unity of the Anglo-American world, conflicts problems, as we know them, arose only infrequently. The nature of Anglo-American law in the eighteenth century accounted to some degree for the lack of modern choice-of-law doctrine. Especially in eighteenth-century New England, the power to determine the rules of law by which cases were decided was lodged in juries rather than judges.1330 Although juries in some cases may have been faced with questions about the applicability of a rule other than that of the forum, the fact that the reasons underlying jury verdicts were never recorded meant that no body of doctrine about how juries should choose law could emerge. Issues about choice of substantive law were determined and doctrine was created only in occasional cases in which a question of substance lurked in the interstices of the procedural and pleading rules which were the chief concern of the eighteenth-century judiciary.
The political unity of the English-speaking world also contributed to the legal unity of that world. Considering themselves Englishmen, the American colonists demanded all the rights of Englishmen, one of the most important of which was the right to have disputes resolved by the common law. Whatever the doubts of Blackstone and the imperial hierarchy,1331 the common law had been received by the mid-eighteenth century in each of the thirteen colonies. “The common law of England,” one English lawyer wrote, “is the common law of the plantations . . . [as far] as the nature of things will bear,”1332 for, as another explained, “if there be a new and uninhabited country not found out by English subjects, as the law is the birthright of every subject, so, wherever they go, they carry their laws with them, and therefore such new country is to be governed by the laws of England”1333 Judges in Massachusetts were in full agreement: Peter Oliver, later a chief justice, thought that “we brought over both the Common Law and Statute with us,”1334 while Edmund Trowbridge, another judge, argued that officials must follow “the Rule at Common Law; unless that Rule be altered by some Statute or Law of the Province.”1335 The inclination of Massachusetts judges to look to Westminster for precedent was further confirmed by the absence of published Massachusetts law reports, which left them with no other choice. As a result, an essentially uniform common law existed throughout the colonies; in fact, during the fifteen years before the Revolution, no record exists of a single Massachusetts case in which a common-law choice of law question was raised.
To what extent did choice of law problems arise during this same period as a result of conflicting statutes? The increasingly sophisticated debate in which Americans were engaged about the applicability of acts of Parliament in the colonies1336 suggests that the colonists were aware of the existence of numerous legislative bodies in the Anglo-American world and of the possibility that their statutes could come into conflict. But, in fact, only one choice-of-law case emerged in Massachusetts out of conflicting statutes.1337 For Americans, in the day today ordering of private legal affairs, usually forgot sophisticated constitutional doctrines and adopted a simpler argument, analogous to that made to secure reception of the common law, that, as Englishmen, they were entitled, “as part of their birthright,” to all the rights of Englishmen, including the benefits of English legislation.1338 The Maryland Assembly, for one, “deemed the General Statutes of England to have the force of Laws of Maryland . . . [for] it would be a great Absurdity to advance that we are intituled to all the Rights and Liberties of British Subjects and that we Can’t have the Benefits of the Laws by which those Rights and Liberties are Reserved.”1339 And the highest colonial courts, ignoring the refined theories of English judges, text writers, and privy councillors, almost invariably agreed. One colonial judge in Massachusetts, as already noted, believed “we brought over both the Common Law and Statute with us,”1340 while a colonial court held “all general statutes of [England] . . . not by express words restrained [thereto] . . . to be of force and to have always been received as such,1341 unless, as in the case of the common law, they were inapplicable to local conditions.”1342 Statutory conflicts were further minimized by the tendency of colonial legislatures not to enact statutes of more than local effect unless, as in the case of the Statute of Frauds, they copied them from Parliamentary acts.1343 The relatively small amount of intercolonial intercourse during the 1760’s, compared with that occurring even fifteen years later,1344 also helped to keep conflicts at a minimum.
The unity of the Anglo-American world was also reflected in the respect which courts of one province accorded to judgments of courts of another. Except in certain types of cases, particularly cases involving title to land in which suit had to be brought before the courts and in accordance with the law of the jurisdiction within which the land was located,1345 a plaintiff could bring suit on a claim anywhere in the British world where he could find the defendant, and the courts throughout that world would enforce the judgment so obtained. Massachusetts courts, for example, rejected an argument that New York and Massachusetts were “Distinct provinces” having “no Metropolitan, who presides over and has a Right to Exercise Jurisdiction about the Probate of Wills &c. in both,” and treated New York probate decrees as they would their own, ruling that an administrator of a New York decedent who procured New York letters could sue in Massachusetts without first obtaining ancillary letters.1346 Courts of one portion of the British empire likewise gave effect to assignments in bankruptcy judicially sanctioned in another portion.1347 Finally, in Massachusetts, the courts permitted plaintiffs to bring writs of debt upon judgments recovered in other provinces of British North America.1348 While it was not clear at common law whether such judgments could be collaterally attacked in the Massachusetts proceedings,1349 whatever doubts may have existed were definitively settled when the General Court in 1774 enacted that debt could be brought in a Massachusetts court upon “a judgment . . . [recovered] in any court in . . . his majesty’s neighboring colonies in America” and that such judgments were to be given the same effect as if they “had been rendered . . . in the court where such action of debt shall be brought and depending.”1350 Just as the Revolution was breaking out, the policy of legal unity was coming to its fullest fruition.
That political boundaries within the Anglo-American world were of much less legal significance than subsequent state lines does not, however, mean that jurisdictional conflicts never occurred during the colonial period. Most colonial conflicts, however, were of a different sort from those with which we are now familiar. To understand the difference, it will be necessary to inquire into the judicial structure of contemporary England and the kinds of conflicts problems which that structure generated.
B. English Jurisdictional Conflicts
As in the Middle Ages, litigants in eighteenth-century England still could choose from “a prodigious variety of courts, some with a more limited, others with a more extensive jurisdiction.”1351 A litigant’s choice was an extremely significant one, however, for choice of court generally determined choice of law as well. The central courts of common law, chancery, and admiralty, as is well known, each applied their own peculiar brand of law; so did the courts of lesser jurisdiction. The Court of Chivalry, for example, applied its own “‘usages and customs’”;1352 church courts, the canon and civil law;1353 borough courts, a varying mixture of common law and borough custom;1354 and university courts, either the common law or their own custom, at their discretion.1355 Choice of court and choice of law, then, were intertwined—so intertwined, indeed, that eighteenth-century Englishmen saw no distinction between them. Subject matter jurisdiction was conceived of as the power to enforce one particular body of law and no other.1356 Thus, the King’s Bench in one case held that it “ha[d] no Jurisdiction” to remove a case pending before a local court possessing equitable powers, since its “power and commission . . . [were] legal only” and “the proceedings . . . [were] in an equitable, Chancery way,”1357 while in another case, the Lord Chief Justice thought it “very material” whether plaintiff’s claim was “founded on the canon law,” since if it were, “this Court has nothing to do in it, but the party must take his remedy by appeal to some superior Ecclesiastical Court.”1358 It was likewise clear that courts which were not common law courts could not hear common law matters; thus, a suit in an admiralty court for damage to goods on a transatlantic crossing—a transaction over which admiralty normally had jurisdiction—was prohibited, since the libel sounded in assumpsit for breach of the promise to transport the goods safely—a form of action which only the common law could enforce.1359
The identification of choice of law with choice of court meant that an English court normally was not confronted with an issue about what law to apply. That issue was subsumed under the determination of which of two or more competing courts had jurisdiction to try a case—a determination ordinarily made by the Court of King’s Bench. King’s Bench understood that it had authority to “examine the proceedings of all jurisdictions erected by an Act of Parliament . . . to the end that this Court may see, that they keep themselves within their jurisdiction: and if they exceed it, to restrain them.”1360 King’s Bench also exercised a like power over other courts, such as the Censors of the College of Physicians, which derived their jurisdiction from a source other than Parliamentary statute.1361 As Blackstone explained, it was the duty of King’s Bench to “keep . . . all inferior jurisdictions within the bounds of their authority.”1362 “In short, the common law . . . [was] the one uniform rule to determine the jurisdiction of courts,”1363 both in cases of horizontal competition between two courts, neither of which was a common law court, and in cases of vertical competition between such a court and a common law one, even the King’s Bench itself.
The choice-of-law-choice-of-court identification also meant that questions of jurisdiction possessed substantive as well as procedural significance. Changes in the jurisdiction of the courts altered substantive legal rights; as a result, Englishmen viewed inter-court rivalries as attempts to destroy vested legal rights. Sir Edward Coke’s jurisprudence epitomized the thought process by which petty jurisdictional disputes were magnified into constitutional crises; in discussing admiralty’s claim to jurisdiction over transactions occurring upon a river, haven, or creek, for example, he argued that it would be “dangerous and penall . . . for them to deal in these cases,” for that would be to “hold plea of things done within the body of the County, which are triable by verdict of twelve men, . . . determinable by the Common Law, and not . . . according to the Civil Law.” Admiralty’s assumption of jurisdiction, he contended, would “change and alter the laws of the realm,” for it would affect not only the forum but the substantive law, the mode of finding and weighing facts, and other procedures as well.1364 It was the magnitude of the change which required “that . . . particular jurisdictions, derogating from the general jurisdiction of the courts of common law, . . . [be] ever taken strictly” and “prohibited from exceed[ing] the limits so prescribed them.”1365
C. American Jurisdictional Conflicts
Americans viewed their own conflicts problems, most of which were with prerogative courts similar to those against which the common law had struggled in England, against this English background. They believed that the reasons for restraining prerogative courts were the same and “as strong in New England as in Great Britain,” for those courts infringed upon the “Privilege of an Englishman . . . to be try’d by his Country and the Laws of the Land.”1366 Beneath this argument still lay the old assumption that choice of forum determined choice of law—an assumption articulated by John Adams as late as five years before the Revolution, when he argued that, in a proceeding in a court of vice admiralty, a civil law court, no reference could be made to the common law and all issues had to be determined in accordance with civil law rules.1367 Provincials continued to think in seventeenth-century English categories even in their analysis of the Appeals Committee of the Privy Council, which they viewed merely as another prerogative court. Thus, as late as 1769, they were arguing that “appeals . . . to the King in Council, whereby the lands, tenements, and hereditaments of British subjects may be questioned by the Lords of the . . . Council, [were] contrary to the Petition of Rights,”1368 since appeals “from the Verdict of their Equals and Neighbors” deprived them “of the important Privilege of a Trial by their Peers.”1369
The Massachusetts materials show that in their contests with the prerogative, colonial common law courts acted much as their English counterparts had acted, even using the same weapons. In dealing with admiralty, for example, writs of prohibition were the most obvious weapon,1370 but the common law courts also possessed further powers in that they could take cognizance of borderline matters over which admiralty also claimed jurisdiction1371 and could entertain suits against admiralty and customs1372 as well as other royal officials1373 for allegedly acting contrary to the common law. Likewise, the claim of the Massachusetts Superior Court that it alone, “by the Clauses in our Charter relative to this Matter, is to judge of the Limitations of Appeals”1374 and the frequent denials of appeal made in reliance on that claim1375 gave the provincial court considerable leverage over the scope of the Privy Council’s appellate jurisdiction. Although a party who had been denied an appeal could obtain leave for one directly from the Council,1376 that remedy was of little avail, for the Massachusetts court did not recognize the legitimacy of appeals so taken and would, in such cases, either refuse to assist the appellant in putting evidence in writing for transmission to the Council or decline to order execution of the Council’s final judgment.1377 Thus, the Massachusetts court, like the common law courts in England, effectively insured its own determination of the jurisdictional limits of the other courts.
Americans also sought to analyze intercolonial judicial relationships against the background of the English judicial system. This is suggested by the case of Whipple v. Mattoon,1378 where the issue was the enforceability in Massachusetts of a common law judgment obtained in New Hampshire. A brief for one of the parties,1379 although incoherent in its resolution of this issue, contains numerous citations to English cases concerning the effect to be given in one English court to a judgment rendered in another. One case, for example, discussed the effect to be given in Common Pleas to a judgment rendered in the “Court of Kingston-upon-Hull”;1380 another, the effect to be given in the “Court of Bristol” to a judgment rendered in King’s Bench;1381 a third, the effect to be given in one London court to a judgment rendered in another.1382 These citations suggest that the lawyer who drew up the brief did not see any difference between cases which involved two or more political entities, such as Massachusetts and New Hampshire, and cases which did not;1383 counsel—indeed, the common law as a whole—viewed the effect to be given to judgments primarily as a problem between courts within a single political entity rather than a problem between courts of separate political entities. The potential legal significance of provincial boundaries was simply passed over.
D. Readjusting English Law to American Conditions
We should not look too harshly, however, upon the confusion of counsel in Whipple v. Mattoon, because his confusion stemmed in large part from the fact that the English model which he was seeking to apply in America did not match with certain American legal realities. Those realities, in fact, were beginning to force lawyers to readjust the model in two significant respects.
One of the readjustments was caused by the presence in the British imperial system of potentially divisive structural elements which the common law had never before encountered. Unlike England, which possessed one supreme legislature—Parliament—and one supreme common law court—the King’s Bench, the American colonies had thirteen legislatures and thirteen supreme courts administering common law. British North America possessed no unifying institutions resting atop a hierarchy of local institutions: the common law, which was at the top of the hierarchy and therefore curbed local independence in England, was at the bottom of the hierarchy and thereby had potentially the opposite effect in America. Meanwhile the agencies of the royal prerogative, which sought to serve as unifying forces, were, as we have seen, surely not much stronger and, perhaps, even weaker than local, common law institutions.1384
35. Fourth Court House, Harvard Square, Cambridge, 1758. Served as Courthouse until 1816. Moved 1841. Demolished 1930. Courtesy, Cambridge Historical Commission.
Gradually and almost imperceptibly during the course of the eighteenth century Americans became aware of these divisive elements and perceived that they were witnessing, not merely a conflict between common law and prerogative courts, but a struggle to define relationships between different levels of government within an imperial system in some ways structurally akin to the future federal system.1385 The first vague perception of the struggle occurred surprisingly early in the century. In 1700, for example, one American argued that a Parliamentary bill to deprive Connecticut of its “judicial autonomy” by authorizing appeals to the Privy Council was, in fact, “a designe to take away all the proprietie of Governments at one blow. . . .”1386 Some years later another American argued that Parliament lacked power to enact such a bill, for “the American Charters are of a higher Nature, and stand on a better Foot, than the Corporations in England.”1387 Americans likewise argued that the Crown lacked power to establish prerogative courts in the colonies and that their provincial legislatures alone possessed such power.1388 Nevertheless, despite these preliminary insights into the fact that two levels of government were competing for control of their judiciary, colonial Americans failed to articulate a coherent philosophy of federalism until they were compelled by the constitutional debates of the 1760’s, 1770’s, and 1780’s to do so.1389 It is important to note that, until 1787, they proposed to weaken, rather than strengthen, central institutions capable of counteracting the divisive elements in their political and legal structure.
A new understanding of the relationship between choice of court and choice of law also began to develop during the pre-Revolutionary constitutional debate. Although the absence of chancery courts had made New Englanders aware from an early date that common law courts could administer equity,1390 reasoned analysis of the choice-of-court-choice-of-law relationship first occurred in 1769 in the politically sensitive case of Sewall v. Hancock.1391 This was a suit for a penalty for smuggling brought by the Crown against John Hancock, under the provision of the Townsend Acts giving Vice Admiralty courts jurisdiction over certain common law causes of action. One issue in the suit was whether the Crown had to sustain the higher civil law burden of proof, or the less stringent common law burden, in order to recover the penalty. John Adams, representing Hancock, made the usual argument that, since trial was in a civil court, the civil law was determinative of all legal issues.1392 The Court ruled, however, that since “the process now in question . . . [was] founded on an Act of parliament, originally intended to be guided by the Rules of the common Law,” it would determine the case “according to those rules.”1393
As the Revolution approached, it was not, then, clear whether Americans would adhere to the English doctrine tying choice-of-law to choice-of-court. The decision in Sewall v. Hancock, the administration of equitable remedies in several colonial common law courts, and the fact that even in England the common law was sometimes applied in local courts1394 indicate that Americans might not have followed the doctrine in interstate conflicts cases. On the other hand, it is clear that American lawyers were aware of the English doctrine and thought it applicable, at least in some instances.
What ultimately led to Americans’ rejection of the English rule was its potential for complete fragmentation of the American legal system. For in America, unlike England, there existed no body of accumulated rules directing plaintiffs to sue in one court rather than another; a plaintiff was free to sue in whatever province he could find a defendant’s person or property. England’s rules could not be imported because of the immense differences between the English and American judicial structures. Nor did Americans possess the equivalent of a Court of King’s Bench atop their judicial structure which was capable of formulating new rules. Adherence to the choice-of-court-choice-of-law tie could only lead to forum shopping of the worst sort as soon as America’s thirteen legal systems began to apply their own differing rules of law to whatever cases plaintiffs chose to bring before them. Only the unity of substantive law throughout the thirteen colonies made it possible to avoid such fragmentation during the pre-Revolutionary period. But the potential for fragmentation—a potential soon to be realized—remained.
II. Revolution and Fragmentation
A. Rejection of the Choice-of-Court-Choice-of-Law Tie
The collapse of royal power and institutions at the outset of the War of Independence might have produced immediate fragmentation, but the state courts permitted the Continental Congress to step into the void and assume many of the old imperial government’s powers. From the outset of the struggle with England, Congress was treated by state judges as a government:1395 at “the moment of their association, the United States necessarily became a body corporate” having “no superior from whom that character . . . [was] derived”1396—a body against which treason and other crimes could be committed1397 and whose agents, like the agents of the crown, were immune from suit upon contracts made in its behalf.1398 It was also recognized that the new government, of necessity, possessed legislative powers. In 1776, for example, the commissions of certain justices of the peace still containing the royal style were adjudged invalid, since they had not yet been “alter’d agreeable to the Act of Independency established by the Congress,”1399 while a decade later a Massachusetts judge told a grand jury that the authors of the Confederation had “intended that ye recommendations of Congress should have ye force of Laws.”1400 Many Congressional acts were, in fact, accorded the force of law in state courts, among them treaties entered into with foreign powers1401 and various exercises of the war power, including seizures of property in war zones1402 and regulations for the distribution of prizes1403 and the governance of the army.1404 Another Congressional power given effect in the state courts was that of emitting money.1405 Finally, there was the power of entering into and enforcing contracts.1406
36. Council Chamber, Old State House, Boston. The Superior Court of Judicature met in this room on frequent occasions in the eighteenth century. Courtesy, Bostonian Society.
These powers and the institutions created pursuant to them gave the new federal government considerable influence during the War of Independence over the daily lives of its citizens—more influence, perhaps, than the old imperial government had ever possessed. The most obvious example of this influence is the army: courts martial had jurisdiction not only over service-connected offenses of soldiers,1407 but also over crimes committed by soldiers against civilians,1408 spying committed by civilians,1409 and other offenses committed by civilians within war zones.1410 Moreover, Congress used its powers broadly; it learned very quickly, for example, to insert in its distributions of contractual largess stipulations compelling contractors to carry out government policy—stipulations to which state courts accorded the force of law.1411
In addition to enforcing federal law, the Massachusetts courts during the late 1770’s and 1780’s gave effect in several cases to rights created by the law of other states. They continued, for example, to permit litigants to bring suit on out-of-state judgments.1412 They also dismissed suits which were already pending before or properly cognizable in the courts of other states at the time proceedings were commenced in Massachusetts.1413 Finally, there were two Massachusetts cases in which out-of-state statutes were given effect. In one, a Connecticut act which had been applied by a Connecticut court so as to confiscate a Tory’s intangible as well as tangible property was applied in Massachusetts in order to bar the Tory from recovering upon a promissory note,1414 while in the other, a New York statute granting immunity to Justices of the Peace for certain acts committed in pursuance of their duty was applied so as to bar a suit in trespass for seizure of the plaintiff’s goods.1415
The immediate significance of state judicial recognition of federal law and of the law of other states was that it permitted the American war effort to be sustained. But it also had a long-term consequence for American conflict of laws, for it dissolved the link between choice of court and choice of law. By the late 1780’s it was clear that a plaintiff’s choice of court did not automatically determine the law that would be applied to his case; there had been too many cases in which courts had made that determination independently and chosen law other than their own. A potentially fragmentary element thus had been removed from the American legal system.
B. Fragmentation
But another potentially fragmentary element remained—the thirteen legislatures and thirteen supreme courts of each of the states—whose existence threatened to destroy the unity of substantive law that had existed throughout the colonial period and to subject Americans with interstate connections to uncertainty about the rules of law which would govern their conduct. During the Revolution, this potential for fragmentation became real, as state courts, despite the many occasions on which they treated the acts of Congress and of the other states as law, nonetheless exercised a residual power to reject such law when it came into conflict with their own local law or local policy.
As in the colonial period, admiralty was a major source of conflict. As soon as war with Britain had begun, Congress established first a Committe on Appeal and then a Court of Appeals in Cases of Capture to review state prize cases.1416 The need for such an appellate jurisdiction was obvious from the effect which state-controlled privateering could have upon the subjects of friendly and neutral nations during a war in which America needed every friend it could get.1417 The new appellate bodies, however, were soon subjected to the old jurisdictional attacks. Like the old admiralty courts, the new federal bodies were accused of depriving litigants of the right to trial by jury—a right which, since the Revolution, had generally been granted in state admiralty courts.1418 To protect this common law right and thereby save their citizens from nonjury trials in a far-off court,1419 the legislatures of most states placed a variety of limitations upon appeals to the federal court.1420 Like the Privy Council before them, the Committee and later the Court of Appeals contended that the scope of their jurisdiction was a matter of federal law: “the judgment and decree of this court,” the Court of Appeals observed, “must be directed by the resolves and ordinances of congress. . . .”1421 State courts, however, simply acted as colonial courts had acted before them: they denied appeals to litigants requesting them1422 and refused to levy execution on federal judgments with which they disagreed.1423 Although the federal court could grant an injunction if its decree was disobeyed, such an injunction was meaningless since the federal government lacked institutions capable of enforcing it.1424
Results in cases involving the army and other federal officials, although not as clear cut, were similar. In dealing with the army, state courts possessed two powers—the power of habeas corpus and the power to take cognizance of suits against the military for alleged violation of common law rights. These powers, like the power to limit the jurisdiction of the federal Court of Appeals, were thought essential for the preservation of liberty within the several states. Americans universally agreed that there was no “worse state of thraldom than a military power in any government, unchecked and uncontrolled by the civil power”;1425 the absolute danger to liberty lay in making “the civil subordinate to the military,” as Jefferson put it in 1774, “instead of subjecting the military to the civil power.”1426 Thus, the state courts did not hesitate to use their powers; on two occasions, writs of de homine replegiando and habeas corpus were sought to procure the discharge of prisoners in military custody,1427 one of them allegedly a soldier,1428 while there were several instances of common law suits against military agents and officers—for assault,1429 for false imprisonment,1430 for back pay,1431 for death benefits granted by a Congressional resolution,1432 and for failing to forward a plaintiff’s commission whereby the plaintiff lost his promotion.1433 The Massachusetts courts also reserved power in criminal cases to determine the validity of defendants’ claims that they were under military jurisdiction and therefore entitled to a court martial.1434 In view of these state-court powers, federal officials who acted contrary to local sentiment always ran a risk of civil and even criminal liability at the hands of local juries. That risk insured that liberty—that is, the common law and, through the jury system, local, communal control of government policy—would be preserved, but at the cost of making enforcement of unpopular though necessary federal policies difficult, if not impossible. Old libertarian arguments were not only having libertarian effects, but were beginning to fragment the legal system as well.
The jurisdictional conflicts so far discussed were, however, only a minor problem for the federal government. A much greater difficulty lay in the fact that state common law courts were the ultimate interpreters of federal law, in large part because of the fact that they were almost invariably the last court to hear any suit. A 1780 suit for money had and received, in which a defendant claimed the money under Congressional regulations as the commander-in-chief’s portion of a prize taken by a Continental ship, is an explicit example of the state courts’ interpretative power: the court’s judgment rested on a finding that the defendant “Cannot be Considered as the Commander in Chief in the sense of those regulations.”1435 Possession of this ultimate interpretative power meant that federal policy could be overridden whenever the exigencies of local policy so required—a danger which several Massachusetts cases arising under the peace treaty with Great Britain demonstrate.
Three provisions of the treaty affected the states. The first provision—that which “recommend[ed that] . . . the Legislatures of the respective States . . . provide for the restitution” of confiscated property of certain categories of British subjects and Loyalists1436—did not require, but merely urged, the states to restore confiscated lands. In Massachusetts, at least, no land was returned.1437 But a second provision—that British creditors would “meet with no lawful impediment to the recovery of the full value in sterling money, of all bona fide debts”1438—caused more difficulty. Massachusetts recognized its obligation to permit such creditors’ suits,1439 but, pursuant to statute, barred the creditors from recovering the interest which had accrued during the course of the War of Independence.1440 The payment of such interest, according to the General Court, would have been “repugnant to the spirit and intendment of the fourth article in the treaty of peace, which provides only for the payment of bona fide debts.”1441 Local policy considerations were also vindicated in the only cases in which recovery of the debt itself was denied.1442 They involved statutes which had confiscated plaintiffs’ intangible as well as real property; although these cases at first glance fit under the treaty’s provision covering debts, they were from the state’s point of view more like the land confiscation cases. For to restore confiscated property—real or intangible—would either put its local purchasers to a loss, or require the state’s taxpayers to reimburse them. The outcome, upon such analysis, was clear.
The greatest difficulties came in the interpretation of the third provision—“that there shall be no future confiscations made, nor any prosecutions commenced against any person or persons for, or by reason of the part which he or they may have taken in the present war, . . . and the prosecutions so commenced [shall] be discontinued.”1443 The Massachusetts courts accepted this provision in cases in which it was clearly applicable. Thus, a prosecution, which had been pending on the effective date of the treaty, for sale of provisions to the British army was dismissed,1444 for it was clear that the defendant was being prosecuted solely on account of the aid he had rendered to the British. In sedition cases, however, the basis for halting prosecution was not so clear. Surely the treaty did not bar prosecution of a defendant who had threatened a tax collector “that if he came into that Street . . . to collect any Rates that he Would be rode on a Rail,”1445 even if, in addition to his lack of money, his reasons for not paying his taxes included a belief that America’s new governors were guilty of treason.1446 Likewise, the treaty arguably did not bar prosecution of a defendant who had observed that, if independence were won, he “would not give a farthing for all the Estate . . . [he] had.” This defendant also had observed that a dictator was to be appointed for all the United States and asked if it would “be better to be under a Dictator, than to be under the King of Great Britain,” whose right to make laws and levy taxes he was willing to recognize, particularly since “it was in vain for the people to pursue their measures any longer against Great Britain . . . and [was] impossible to carry on the War any longer,” when “we cannot raise an army” and “can never pay our taxes.”1447 Another defendant was similarly war-weary; he refused to “pay anything for such a Government as this,” and was certain that “King George will . . . overcome,” since the people were revolting and going over to him. He urged there was “no other way but to refuse paying Taxes, for as long as we pay taxes the War will Continue.”1448 A final defendant similarly combined tory and radical whig ideas. He urged that “there must be a revolution” since “America’s little finger is heavier than the British Loins” and its “Government . . . broke by the General Court.” With his “motto” that “Great Britain and America [should] ever be united,” he predicted that “there will soon be the greatest revolution there has been Yet,” in which royal troops would triumph, amnesty would be proclaimed, and the people would “see better times than they ever had.”1449 Despite the fact that its pro-British sentiments appeared to place it within the scope of the peace treaty’s amnesty provisions, such language put in doubt the very survival of government and, in view of government’s fragility,1450 was too dangerous to ignore. The Massachusetts courts under such pressure permitted sedition prosecutions to continue. The amnesty clause was accordingly applied only to cases in which a defendant was being prosecuted solely “for . . . reason of the part” which he had taken in the war; if any other local policy or governmental interest was served by a prosecution, the amnesty clause was forgotten.
The Massachusetts courts also applied the provision concerning future land confiscations narrowly.1451 Although no new cases were commenced, confiscation proceedings which had been instituted prior to the effective date of the treaty were permitted to progress to judgment thereafter;1452 the treaty was, after all, somewhat vaguely written on this issue. The treaty’s vagueness also permitted the courts to adhere to the common law rule which barred aliens from holding realty for their own use,1453 on the theory that otherwise “the nation might in time be subject to foreign influence.”1454 No one, of course, was prepared to argue that the common law was confiscatory, but the effect of following it clearly was to confiscate any remaining British land holdings and to prevent future land acquisitions by British subjects.1455
Other states also construed the 1783 treaty in ways that impeded former supporters of the British cause from protecting their American interests. In South Carolina, for example, the state Supreme Court held that the treaty’s provision against future prosecutions and confiscations only barred “criminal prosecutions at the suit of the state,” but that it did “not exonerate . . . persons from damages in civil suits.”1456 Pennsylvania held that the same provision barred a loyalist whose property had been confiscated from recovering on a pre-Revolutionary debt on the theory that the state had confiscated the debt prior to the date of the treaty even though the state had never brought suit to recover or otherwise exercised control over the debt.1457 Other cases were also resolved against those who had sided with the British during the war,1458 although there were also a few cases decided in favor of British sympathizers.1459
The same localism that manifested itself in federal-state conflicts also appeared during the Confederation period in interstate conflicts cases. The largest group of such cases in Massachusetts arose out of the collision between the creditor-oriented economic policies of the Commonwealth and the debtor-oriented policies of Rhode Island. The most notorious phase of this collision occurred when Rhode Island made its own depreciated paper currency legal tender for the payment of out-of-state creditors.1460 That legislation soon led to further legal fragmentation, when the Massachusetts General Court, in response, permitted Massachusetts residents to pay their Rhode Island creditors in the same Rhode Island paper,1461 and the Massachusetts courts upheld the local policy.1462 Another example of retaliatory legislation in the Massachusetts-Rhode Island dispute was the Rhode Island statute of 1780 prohibiting appeals to Congress in prize cases in which one of the parties was from a state, such as Massachusetts, which itself restricted appeals.1463 Localism was also evident in a Massachusetts case brought to recover Massachusetts land in which the defendant pleaded a title obtained from the original Rhode Island owner pursuant to an English and a Rhode Island bankruptcy act. The court rejected the plea on the ground “that the said Act of Assembly of the late Colony of Rhode Island and the said Statute of the twenty first of James are not nor never were of force within the late Province now State of Massachusetts Bay”1464—a rather cavalier treatment of out-of-state legislation which would have been unlikely to have occurred during the pre-Revolutionary period before the trend toward localism had set in. Nor were the cases involving Rhode Island the only ones in which the Massachusetts courts in the advancement of local policy denied relief to out-of-state claimants. The most politically sensitive of all, perhaps, occurred in 1783, when Massachusetts granted habeas corpus to a runaway slave from South Carolina, over an objection that his release had some “Connection with, or relation to puritanism” and constituted “an attack upon the Sprit, freedom, dignity, independance, Sovereignty of S.C.”1465 The Massachusetts judges, of course, denied the charge, but their argument that their decision had been based upon the unavailability of procedures for committing runaways was patently untrue.1466 As the South Carolinians sensed, Massachusetts was merely advancing its own policy of abolitionism.
These federal-state and interstate conflicts cases, most of which were, as we have seen, products of conflicting state statutes oriented toward local, particularistic social and economic policies, made explicit the legal fragmentation implicit in the colonial system’s thirteen supreme courts and thirteen legislatures—“a hydra in government, from which nothing but contradiction and confusion . . . [could] proceed.”1467 By introducing the element of statutes into the law, the Revolution had destroyed the unity of American substantive law—a unity which during the colonial period had obscured the structural fragmentation which had occurred merely in transplanting English judicial institutions to America. By the late 1780’s, Americans, surveying the “rival, conflicting and angry regulations” of the states1468 and the federal laws which “ye States ha[d] disregarded . . . with constancy & without Blushing,”1469 were well aware that fragmentation had occurred.
As against this fragmentation, the rejection of the English doctrine tying choice of law to choice of court paled into insignificance. For that rejection had merely brought about a shift from a potentially rigorous conflicts rule of applying the lex fori in every case to a more flexible, but still divisive approach of analyzing whether local governmental policy required such application. This new approach, however, by no means eliminated the danger that “from the gradual conflicts of State regulations, . . . the citizens of each, would at length come to be considered and treated by others in no better light than that of foreigners and aliens”1470—a “danger . . . much to [be] dread.”1471
III. Conflict of Laws in a Federal System
A. The Program of the Framers
The importance which federal-state and interstate conflicts problems had assumed made it “necessary,” many Americans believed, “to establish one court paramount to the rest—possessing a general superintendence, and authorised to settle and declare in the last resort, an uniform rule of civil justice.”1472 The justices of the Supreme Court, for example, “deemed [it] essential to the due administration of Justice, that some national Court or Council, should be instituted or authorized to examine the Acts of the ordinary Tribunals, . . . it being important that these Tribunals should be confined to the limits of their respective Jurisdictions, and that they should uniformly interpret and apply the Law in the same Sense and manner.”1473 Such federal superintendence and control were needed to “preserve the harmony of the states, and that of the citizens thereof”;1474 all practices having “a tendency to disturb the harmony” were, The Federalist argued, “proper objects” of such national control.1475
The framers always kept in mind the “constant tendency in the States to encroach on the federal authority . . . [and] to infringe the rights & interests of each other. . . .”1476 Their initial response to this tendency was to confer upon Congress a power to negative all state laws, but this solution was rejected on the ground it would permit national interference in purely local affairs; as George Mason argued, “[N]o road nor bridge . . . [could] be established without the Sanction of the General Legislature,” which would be required “to sit constantly in order to receive & revise State Laws.”1477 The Convention then responded with two narrower provisions, which sought to reach only those state laws which came into conflict either with federal law or with the law of another state.1478 The provision dealing with federal-state conflicts was the supremacy clause, which made “the laws of the general government . . . binding on the state[s] . . .”1479 To deal with the problem of interstate conflicts, the Convention incorporated the full faith and credit clause of the Articles of Confederation into the new Constitution, but with two amendments which sought to insure its application to “acts of the Legislatures” as well as to “Judgments”1480—the only two interstate conflicts problems which legal thinkers had yet perceived.1481 Finally, the Convention made provision for the creation of a federal judiciary since “the Courts of the States . . . [could] not be trusted with the administration of the National laws.”1482
When one looks at the framers’ statements against the background of the problem they were seeking to solve, one senses that they had a vaguely defined, general goal of creating a new body of federal law and a new federal institution capable of imposing jurisdictional limits on state courts and legislatures,1483 much as the common law and the Court of King’s Bench had imposed limits on the jurisdiction of local courts and local law in England. There seemed to be no other solution. No one had, as yet, conceived of the possibility of dealing with federal-state and interstate conflicts as different issues; indeed, on most occasions when the framers spoke about the problems, they spoke about them together. Moreover, the states had failed equally in dealing with both. No alternative existed to creating a new institution—a Supreme Court which would administer federal law1484 setting limits upon the jurisdiction of the states, both as against itself and as against each other.
The framers did not think about conflicts problems in more precise terms than this. Aware of “the difficulty in establishing the powers of the judiciary,”1485 they left to the future the demarcation of precise boundaries between various courts and various laws in America. “Time, reflection, and experience,” they realized, would “be necessary to suggest and mature the proper regulations on this subject.”1486 Accordingly they wrote the relevant constitutional provisions in rather broad and general language. One critic, in speaking of the jurisdiction of the federal courts and of federal law, observed that it was “impossible for human nature to trace its extent,”1487 while Madison’s statement about the first sentence of the full faith and credit clause—that it was “extremely indeterminate; and can be of little importance under any interpretation it will bear”1488—describes perfectly the state in which posterity would find the record left by the framers. In resolving conflicts problems, posterity accordingly would turn to other sources in addition to that record.
B. The Common Law as a Guide to Constitutional Interpretation
The source to which legal thinkers initially turned was the common law. The Massachusetts legislature, for one, assumed that the limits of federal jurisdiction were to be “found in the application of the principles and usages of the common law,”1489 for, as a Massachusetts representative in Congress explained, “when the people of the United States convened for the purpose of framing a federal compact, they were all habituated to this common law, to its usages, its maxims, and its definitions.”1490 It was therefore “natural to conclude that, in forming the Constitution, they kept in view the model of the common law, and that a safe recourse may be had to it in all cases that would otherwise be doubtful.”1491 “Without this law,” another Congressman argued, “the Constitution [would] become . . . a dead letter.”1492
It was, indeed, natural to turn to the common law. Lawyers of moderate intelligence and conservative temper who dared not think bold new thoughts had little else to which to turn. The common law, however, produced strange and unacceptable results in three of the instances upon which courts did have recourse to it.
1. Federal Diversity Jurisdiction.—One instance of recourse to the common law was the adoption by federal courts, hearing diversity cases, of common law rules concerning waiver of jurisdictional defenses. The common law distinguished between subject matter jurisdiction, which a defendant could not waive, and other jurisdictional matters, which he could waive, thereby consenting to jurisdiction. By subject matter jurisdiction, English lawyers meant jurisdiction to administer the sort of law under which the plaintiff was seeking a remedy; the concept had reference to the choice of court-choice of law relationship—to the fact that a common law court, for example, could not administer ecclesiastical remedies.1493 Pleas, on the other hand, alleging improper venue or that a defendant was privileged not to be sued in a particular court, were of the sort which could be waived.1494 Since lack of diversity was factually more analogous to the latter than to the former English concept, there were many early cases in the federal courts of Massachusetts in which diversity was waived and jurisdiction consented to—suits, for example, between two foreigners;1495 between two citizens of Massachusetts,1496 one of whom, in one case, pleaded that he was a citizen of Massachusetts who resided overseas;1497 and between a Massachusetts citizen and a citizen of another state residing in Massachusetts.1498 Moreover, during the first seven years of the diversity jurisdiction in Massachusetts, only one dismissal occurred for want of diversity alone, and then, only after the want of diversity had been pleaded.1499 Instead, in one case which was dismissed for lack of jurisdiction,1500 the defendant had made the identical plea he would have made at common law to challenge the jurisdiction of a state court1501—that neither of the parties lived nor did the cause of action arise within the territorial limits of the court.1502 The hiatus between that plea, which is almost analogous to a modern plea of improper venue, and the modern concept of diversity is further demonstrated by a suit between an English plaintiff and a Massachusetts defendant, which was nonetheless dismissed upon a plea of lack of jurisdiction solely because the cause of action had arisen in England.1503
2. Federal Jurisdiction of Common Law Crimes.—Another instance of recourse to the common law was the federal courts’ assumption of jurisdiction over common law crimes during the 1790’s and early 1800’s. The theory upon which jurisdiction was assumed was that the government had “an implied power to preserve its own existence and promote the end and object of its creation”;1504 as one district judge observed, the federal government “could no longer be called an independent government, if, for the punishment of offenses of this nature, tending to obstruct and pervert the administration of its affairs, an appeal must be made to the state tribunals.”1505 Like the independent state governments, the federal government accordingly turned to the common law, bringing a series of criminal prosecutions that have been chronicled in detail by historians.
3. State-Court Suits Against Federal Officials.—Lawyers also continued to look to state common law to provide relief against abuses of power by government officials. State writs of habeas corpus1506 and de homine replegiando1507 accordingly were used on numerous occasions to test the validity of military enlistments, and in the majority of the cases the enlistees were released. Such state writs, of course, carried with them the power to interpret the federal statutes by which the validity of enlistments was determined1508—a power which Justice Story thought was used by Massachusetts to defeat federal legislative policy during the War of 1812.1509 Few legal thinkers, however, saw the issue as one of federal-state power. Most, instead, saw state control over the military as a “practice” based upon the principle that “in a free country, the civil power must predominate”—a practice which would “secure and preserve our liberties from the inroads of a standing army.”1510 Analogous policy considerations were involved in the power of state courts to entertain common law damage suits against federal officials. Such suits were brought upon contract claims,1511 for allegedly illegal seizures of plaintiffs’ goods,1512 and for allegedly unlawful sales of real estate for nonpayment of taxes.1513 State-court suits were also commenced against federal officials in their capacity as private citizens.1514 These suits gave state courts significant leverage over federal policy, particularly in view of the trial court’s power to find facts and initially to accept or reject defenses.1515
The results which the common law produced in the areas of diversity, criminal law, and suits against government officials made sound analytical sense to common lawyers and were consistent with precedent. Moreover, the results were unbiased: sometimes, as in diversity and criminal law, the common law made federal jurisdiction broader than we now know it; at other times, as with suits against government officials, that jurisdiction was narrowed. Nonetheless, the common law failed as a guide to interpreting the Constitution’s jurisdictional provisions. The difficulty was that its results were unacceptable to politically significant groups. Thus, reference to the common law rendered people with strong fears of centralized power subject to prosecution at the hands of that power for essentially political crimes, such as sedition1516 or taking sides in a European war which many Americans saw as a struggle between liberty and tyranny.1517 The common law as used in interpreting the diversity jurisdiction, meanwhile threatened the state courts, again enhancing central at the expense of local institutions. On the other hand, as events during the War of 1812 proved, the common law rendered the federal government potentially incapable of enforcing national policies in time of crisis.1518 The common law, in short, hindered the establishment of the constitutional system—promoting both national tranquility and local liberty—which the framers had sought to create. Legal thinkers accordingly turned elsewhere in their search for principles with which to clothe the Constitution.
C. Politics as a Guide to Constitutional Interpretation
Americans finally derived the principles with which they clothed the Constitution from the political theory and political reality of the early nineteenth century. Many of the great constitutional issues of the period—the extent of national legislative power and the jurisdiction of the Supreme Court over state appeals, for example—were, at their root, questions of political theory—questions over which people disagreed. There existed, however, a common core of political assumptions to which nearly all Americans assented. These assumptions, in turn, influenced the direction which the courts took during the nineteenth century in several conflicts matters and which courts today still continue to take.
One political assumption upon which nearly all Americans agreed was that the federal government was a government of limited powers. This was true of all its agencies; the courts, for example, possessed “only . . . such portions of power as were conceived necessary for the public welfare,”1519 and, in fact, had been denied added powers because such powers would have been dangerous to that welfare. From this it followed that a litigant could, “by no means, give a jurisdiction to . . . [a] court of the United States, which that court . . . [did] not possess by the constitution of . . . [its] power from the people of all the states.”1520
1. Federal Diversity Jurisdiction.—Recognizing that jurisdictional limitations existed for constitutional reasons of greater importance than the convenience of individual litigants, federal diversity courts refused after 1797 to permit litigants to consent to jurisdiction and began to dismiss sua sponte suits in which diversity did not appear upon the record.1521 By the 1820’s the courts were applying an essentially modern rule that “where the want of jurisdiction is apparent . . ., it is fatal at all times, and may be insisted upon by way of motion or otherwise, in any stage of the cause, and even upon appeal.”1522 They also had forged modern rules prohibiting suits between parties, neither of whom was a resident of the district,1523 and requiring total diversity between all parties on each side of any matter.1524
2. Federal Jurisdiction of Common Law Crimes.—Recognition of the limitations of federal power also assisted in the destruction of the federal courts’ jurisdiction over common law crimes. The first step occurred in 1798 in United States v. Worrall,1525 where Justice Chase argued that federal courts could not have such common law jurisdiction because neither the Constitution nor the Congress had made the common law a part of federal criminal jurisprudence.1526 Two years later James Madison improved upon this argument. He contended that the adoption of the common law by the federal courts would have one of two unconstitutional results. If the common law were held, “like other laws, liable to revision and alteration by the authority of Congress,” then “the authority of Congress . . . [would be] coextensive with the objects of common law; that is to say, with every object of legislation . . . [and] no longer under the limitations marked out in the Constitution.”1527 On the other hand, if the common law were held “paramount and irremediable by the legislature,” that “would confer on the judicial department a discretion little short of a legislative power.”1528 In either case, adoption of a federal common law “would overwhelm the residual sovereignty of the states, and, by one constructive operation, new-model the whole political fabric of the country.”1529
With Madison’s party in power during the next decade, so few federal common law prosecutions occurred that, when the Supreme Court was called upon in 1812 to determine the legitimacy of such prosecutions, it considered the question “as having been long settled in public opinion” and in “the general acquiescence of legal men,” and accordingly held in United States v. Hudson1530 that such prosecutions were impermissible. There was, however, an answer to Madison’s argument—an answer vaguely perceived by James Sullivan in 1801 and clearly articulated by Justice Story in United States v. Coolidge in 18131531—namely, that federal common law jurisdiction could be limited to those substantive crimes over which Congress had legislative power. Such a limitation, of course, would not have upset the balance of federalism. On the basis of Story’s analysis, the Supreme Court was willing to reconsider its decision in Hudson, but the Madison administration declined in Coolidge to argue on behalf of the government, and the Court refused to overrule Hudson without hearing argument.1532 Administrative decision-making thus joined with constitutional analysis to end the federal courts’ jurisdiction over common law crimes.
3. State-Court Suits Against Federal Officials.—A third area in which courts had had recourse to the common law was that of state-court suits against federal officials. But, during the War of 1812, the propriety of this jurisdiction became a matter of political rather than legal concern, largely as a result of state-court obstruction of federal war policies.1533 The result was a series of temporary statutes in 1815, which permitted most sorts of federal officials to remove to a federal court proceedings brought against them in their official capacities in a state court. Some of these temporary acts remained in force for several years, and in 1833 a permanent removal statute for federal officials was finally enacted in response to South Carolina’s attempt to nullify the Tariff of 1832.1534 It was not until the Civil War era, however, that state courts were forbidden to grant habeas corpus to prisoners in federal custody.1535
4. Interstate Conflict of Laws.—A fourth subject upon which political considerations had an effect was that of interstate conflict of laws. At the Constitutional Convention, the expectation had been that interstate, as well as federal-state conflicts, would be resolved as matters of federal law.1536 But, in fact, few interstate conflicts were so resolved. Interstate choice of law questions, both statutory1537 and nonstatutory,1538 for example, all became questions of state law; no one in Massachusetts and, perhaps, no one in the rest of the nation as well, ever argued during the last decade of the eighteenth century or the first three decades of the nineteenth that such problems were of federal dimension.1539 Out-of-state law was applied in choice of law cases only as a matter of “comity”1540—a concept borrowed from continental law.1541 Likewise, most questions concerning the effect to be given in one state to a judgment rendered in another were resolved as matters of state law. For instance, the Massachusetts courts, reversing the colonial rule,1542 rejected the argument that letters of administration were within the scope of full faith and credit1543 and held that an administrator who had received letters under the authority of another state could not sue in Massachusetts without first obtaining ancillary letters.1544 They similarly held that a criminal conviction in another state was not entitled to full faith and credit and accordingly did not render the convict incompetent as a witness in Massachusetts,1545 observing that “a judgment on a criminal prosecution cannot be carried into effect, beyond the jurisdiction of the state, within which the offense was committed,” and that it was “hardly possible to conceive” that a contrary rule would “ever be adopted, so long as any portion of sovereignty remains with the states.”1546 Massachusetts courts also analyzed out-of-state divorce decrees not as a matter of full faith and credit, but as a matter of whether to “permit another state to govern our citizens, in direct contravention of our own statutes”—a result which could be “required by no rule of comity.”1547
There was, in fact, only one problem to which the full faith and credit clause was held applicable—that of the effect to be given in one state to a judgment in a civil suit rendered in another.1548 Even upon this question, the courts at first had doubts, and many early cases held that the clause and the Congressional legislation pursuant to it provided only for a method of authenticating out-of-state judgments and said nothing about the effect to be given them.1549 Only after 1810 did it become clear that federal law required the state in which an out-of-state judgment was pleaded to give it conclusive effect, provided that the court rendering the judgment had had jurisdiction of the suit.1550
Why, except for the problem of civil judgments, did interstate conflicts problems become questions of state rather than federal law? Part of the answer lies in the realm of political theory. A common assumption shared by all political theorists in the first half of the nineteenth century was that sovereignty in America had been divided between the states and the federal government. Although overlap occurred in those areas where the two governments possessed concurrent powers, the Constitution, as a general rule, was thought to have dispensed “certain powers on the state governments, and certain other powers on the national government.”1551 The states were “no more subject within their respective spheres to the general authority, than the general government . . . [was] subject to them in its own sphere.”1552 The now familiar expedient of giving the federal government power, usually under the Fourteenth Amendment, to set minimum standards within which state law must then operate in regulating particular subject matters was foreign to the early nineteenth-century legal mind, which tended instead to consider power over any particular subject matter either as exclusively federal or as exclusively state. Given contemporary predilections for decentralized government, such an analysis led irresistibly toward giving the states jurisdiction over interstate conflicts problems. Everyone agreed that the states had jurisdiction over their “internal police and economy”1553—that is, over “ye laws about last wills & Testaments, descent of real estates, laws respecting contracts, respecting debts, conveyances, &c.” and “ye mode of conducting & bringing actions, & seeking redress of private injuries & wrongs.”1554 It followed that, if each state was to “give . . . the supreme law within its own dominions on all [such] subjects,”1555 the states must have exclusive cognizance of all conflicts questions.
The courts could, of course, have departed from this mechanistic analysis; indeed, they did depart from it in dealing with the problem of out-of-state judgments. Analysis of how that problem differed from other conflicts problems indicates why no other departures were made.
One difference was that, in 1790, for reasons which the scantity of the legislative record make it impossible to determine, Congress had enacted legislation about judgments, but not about other interstate conflicts problems. This difference became crucial when the Supreme Court in 1813 rested its holding in Mills v. Duryee,1556 that out-of-state judgments were to be given conclusive effect, upon the legislation rather than the underlying constitutional provision. The absence of other legislation under full faith and credit was, however, also symptomatic of a more basic historical fact—that such legislation was not needed. For the other great conflicts problems which had arisen during the Confederation period were dealt with under other provisions of the Constitution—the currency cases, under the commerce power and the prohibition upon the states against issuing any paper money;1557 the fugitive slave cases, under the provision for the return of those slaves;1558 and the insolvency cases, under the contract clause.1559 In cases like Swift v. Tyson,1560 where the defendant argued in a federal court in New York that New York law should be applied to a negotiable instrument uttered in Maine; Prigg v. Pennsylvania,1561 where Pennsylvania sought to prosecute a Maryland resident who had entered Pennsylvania to recapture an alleged fugitive slave; and McMillan v. McNeill,1562 where it was decided that a Louisiana statute could not affect the obligation of a contract made in South Carolina, nineteenth century courts continued to face conflicts problems similar to those of an earlier era. The courts analyzed such cases, however, not as general conflict of laws cases, but as interstate commerce cases, fugitive slave cases, and contract clause cases. As a result, the cases did not give birth to a body of national conflict of laws doctrine. Nor did the residuum of conflicts problems, which essentially were problems of private law, where the public policies of various states rarely clashed and where the extension of comity by one state to the law of another could and, in fact, did lead to fair and just results.1563 The fact that Congress legislated only upon the problem of judgments was, finally, symptomatic of one other fact—the difficulty of framing other conflicts rules. As the Founding Fathers had realized, “time, reflection, and experience” would “be necessary to suggest and mature proper regulations”1564 on the subject of interstate conflict of laws. This “time, reflection, and experience” were gained by leaving most of the subject to the states.
IV. Conclusion
When one disengages from the preconceptions of one’s own time and looks backward over the long, complex process by which the subject of interstate conflict of laws became a matter primarily of state law, rather than federal constitutional law, it becomes clear that the process was not logically ordained. On the contrary, the logical solution both for federal-state and for interstate conflicts was that conceived by the framers—to place a supreme court administering a supreme law atop the national judicial structure with a mandate to resolve all intercourt conflicts.
Logic, however, is rarely the sole determinative force in any legal development. Much more important are people’s needs and wants. It is therefore not surprising that the mode of resolving interstate conflicts, like the scope of federal jurisdiction, was determined largely by one of the dominating impulses of early nineteenth century America—localism, or the urge on the part of nearly all Americans to govern their own affairs without interference from outsiders unacquainted with the details of those affairs. This localism, which initially influenced the law of conflict of laws during the era of the American Revolution, continues by inertia to influence it today.