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in the Chesapeake Bay. Being abandoned, she becomes the property of the corporation by which she was insured. I demand whether the insurers may not come and take this property, and briog an action for it, if necessary, in any court in this country, State or Federal. They may recover by an action of tort against the wrong-doer. They may replevy their property, if necessary, or sell it, or refit it, or send it back. Unquestionably, if any country were to debar the citizens of another country of the enjoyment of these common rights within its territorial jurisdiction, it would be cause of war. I do not mean that a single act of that sort would, or should, bring on a war; but it would be an act of that nature, so plain and manifest a violation of our duty under the law of nations, as to justify war. According to the judgment of the court below, in the present case, however, these insurance companies would be deprived oftheir rightful remedy. You let them sue, indeed; but that is all.
Mr. Webster here referred to a case tried some time ago in the Circuit Court of the Massachusetts District, in which he was counsel, in which a vessel insured in Boston was wrecked in Nova Scotia, and was abandoned to the insurers. The insurance office sent out an agent, who did that which the owner of the vessel said was an acceptance of the abandonment. On the question whether the agent of the Boston office accepted the abandonment, (said Mr. Webster,) the court decided the case. If we had said that we sent him down, indeed, but that his agency ceased when he got to the boundary line of the State, and he could do no act when he got beyond it, and the court had agreed with us, we might, perhaps, have gained our cause. But it never occurred to me, nor probably to the court, that the agency of our agent terminated the moment that he passed the limits of the State.
The law of comity is a part of the law of nations; and it does authorize a corporation of any State to make contracts beyond the limits of that State.
How does a State contract? How many of the States of this Union have made contracts for loans in England! A State is sovereign, in a certain sense. But, when a State sues, it sues as a corporation. When it enters into contracts with the citizens of foreign nations, it does so in its corporate character. I now say, that it is the adjudged and admitted law of the world, that corporations have the same right to contract and to sue in foreign countries as individuals have. By the law of nations, individuals of other countries are allowed in this country to contract and sue; and we make no distinction, in the case of individuals, between the right to sue and the right to contract. Nor can any such distinction be sustained in law in the case of corporations. Where, in history, in the books, is any law or dictum to be found, (except the disputed case from Virginia,)
in which a distinction is drawn between the rights of individuals and of corporations to contract and sue in foreign countries in regard to things, generally, free and open to every body? In the whole civilized world, at home and abroad, in England, Holland, and other countries of Europe, the equal rights of corporations and individuals, in this respect, have been undisputed until now, and in this case; and if a distinction is to be set up between them at this day, it lies with the counsel on the other side to produce some semblance of authority or show of reason for it.
But it is argued, that, though this law of comity exists as between independent nations, it does not exist between the States of this Union. That argument appears to have been the foundation of the judgment in the court below.
In respect to this law of comity, it is said, States are not nations; they have no national sovereignty ; a sort of residuum of sovereignty is all that remains to them. The national sovereignty, it is said, is conferred on this Government, and part of the municipal sovereignty. The rest of the municipal sovereignty belongs to the States. Notwithstanding the respect which I entertain for the learned judge who f resided in that court, I cannot follow in the train of his argument, can make no diagram, such as this, of the partition of national character between the State and the General Governments. I cannot map it out, and say, "So far is national, and so far municipal; and here is the exact line where the one begins and the other ends." We have no second Laplace, and we never shall have, with his Micanique Politique, able to define and describe the orbit of each sphere in our political system with such exact mathematical precision. There is no such thing as arranging these governments of ours by the laws of gravitation, so that they will be sure to go on forever without impinging. These institutions are practical, admirable, glorious, blessed creations. Still they were, when created, experimental institutions; and if the Convention which framed the Constitution of the United States had set down in it certain general definitions of power, such as have been alleged in the argument of this case, and stopped there, I verily believe that, in the course of the fifty years which have since elapsed, this Government would have never gone into operation.
Suppose that this Constitution had said, in terms, after the language of the court below, "AU national sovereignty shall belong to the United States; all municipal sovereignty to the several States." I will say that, however clear, however distinct, such a definition may appear to those who use it, the employment of it in the Constitution could only have led to utter confusion and uncertainty. I am not prepared to say that the States have no national sovereignty. The laws of some of the States — Maryland and Virginia, for instance — provide punishment for treason. The power thus exercised is certainly not municipal. Virginia has a law of alienage: that is a power exercised against a foreign nation. Does not the question necessarily arise, when a power is exercised concerning an alien enemy—" Enemy to whom?" The law of escheat, which exists in many States, is also the exercise of a great sovereign power.
The term "sovereignty " does not occur in the Constitution at all. The Constitution treats States as States, and the United States as the United States; and, by a careful enumeration, declares all the powers that are granted to the United States, and all the rest are reserved to the States. If we pursue to the extreme point the powers granted and the powers reserved, the powers of the General and State Governments will be found, it is to be feared, impinging and in conflict. Our hope is, that the prudence and patriotism of the States, and the wisdom of this Government, will prevent that catastrophe. For myself, I will pursue the advice of the court in Deveaux's case; I will avoid nice metaphysical subtilties, and all useless theories; I will keep my feet out of the traps of general definition; I will keep my feet out of all traps; I will keep to things as they are, and go no farther to inquire what they might be, if they were not what they are. The States of this Union, as States, are subject to all the voluntary and customary law of nations. [Mr. Webster here referred to and quoted a passage from Vattel, page 61, which, he said, clearly showed that States connected together as are the States of this Union, must be considered as much amenable to the law of nations as any others.]
If, for the decision of any question, the proper rule is to be found in the law of nations, that law adheres to the subject. It follows the subject through, no matter into what place, high or low. You cannot escape the law of nations in a case where it is applicable. The air of every judicature is full of it. It pervades the courts of law of the highest character, and the court of pie poudre; ay, even the constable's court. It is part of the universal law. It may share the glorious eulogy pronounced by Hooker upon law itself— that there is nothing so high as to be beyond the reach of its power, nothing so low as to he beneath its care. If any question be within the influence of the law of nations, the law of nations is there. If the law of comity does not exist between the States of this Union, how can it exist between a State and the subjects of any foreign sovereignty?
Upon all the consideration that I have given to the case, the conclusion seems to me inevitable, that if the law of comity do not exist between the States of this Union, it cannot exist between the States individually and foreign Powers. It is true, a State cannot make a treaty; she cannot be a party to a new chapter on the law of nations; but the law which prevails among nations — the «ustomary rule of judicature, recognized by all nations — binds her in all her courts.
I have heard no answer to another argument. If a contract be made in New York, with the expectation that it is to be there executed, and suit is brought upon it in Alabama, it is to be decided by the law of the State in which the contract was made. In a case now before this court, there has been a decision by the court of Alabama, in which that court has undertaken to learn the law of the State of New York, and administer it in Alabama. Why take notice in Alabama of the law of New York? Because, simply, there are cases in which the courts in Alabama feel it to be their duty to administer that law, and to enforce rights accordingly. That (said Mr. Webster) is the very point for which we contend, viz., the court in Alabama should have given effect to rights exercised in that State by the plaintiff in the present cause, under the authority of Pennsylvania, without prejudice to the State of Alabama.
After all that has been said in argument about corporations, they are but forms of special partnership, in some of which the partners are severally liable. The whole end and aim of most of them, as with us, is to concentrate the means of small capitalists in a form in which they can be used to advantage.
In the Eastern States, manufactures too extensive for individual capital are carried on in this way. A large quantity of goods is manufactured and sold to the South, out of cotton bought in the South, to the amount of many millions in every year. Upon the principle of the decision in the court below, the manufacturers of the goods and the growers of the cotton would be equally precluded from recovering their dues. What will our fellow-citizens of the South say to this? If, after we have got their cotton, they cannot get their money for it, they will be in no great love, I think, with these new doctrines about the comity of States and Nations.
Again, look at the question as it regards the insurance offices. How are all marine insurances, fire insurances, and life insurances, effected in tliis country, but by the agency of companies incorporated by the several States? And the insurances made by these companies beyond the limits of their particular States, are they all void? I suppose that the insurances against fire, effected for companies at Hartford< in Connecticut, alone, by agents all over the Northern States, may amount to an aggregate of some millions of dollars. I remember a case occurring in ftew Hampshire, of a suit against one of those companies for the amount of an insurance, in which a recovery was had against the company; and nothing was said, nor probably thought, of such a contract of insurance being illegal, on the ground that a corporation of Connecticut could not do .on act or make a contract in New Hampshire. Are those insurances all to be held void, upon the principle of the decision from Alabama?
And as to notes issued by banks: If one in Alabama hold the notes of a bank incorporated by Pennsylvania, are they void? If one be robbed there of such notes, is it no theft? If one counterfeit those notes there, is it no crime? Are all such notes mere nullities, when out of the State where issued?
Reference has been made to the statute-books to show cases in which the States have forbidden foreign insurance companies from making insurances within their limits. But no such prohibition has been shown against insurances by citizens of, or companies created in, the different States. Is not this an exact case for the application of the rule, Exceptio probat regulam 1 The fact of such prohibitory legislation shows that citizens of other States have, and that citizens of foreign Powers had, before they were excluded by law, the right to make insurances in any and every one of the States.
Mr. Webster next called the attention of the court to the deposit law, passed by Congress on the 23d of June, 1836. It was (said he) one of the conditions upon which, under that act, any State bank should become a depository of the public money, that it should enter into obligations "to render to the Government all the duties and services heretofore required by law to be performed by the late Bank of the United States, and its several branches or offices ;" that is, to remit money to any part of the United States, transfer it from one State to another, he. But that act required, also, something more; and it shows how little versed we in Congress were (and I take to myself my full share of the shame) in the legal obstacles to the doing of acts in one State by corporations of other States. The fust section of that act provides, that, "in those States, Territories, or Districts, in which there are no banks," Sec., the Secretary of the Treasury "may make arrangement with a bank or banks in some other State, Territory, or District, to establish an agency cr agencies in the States, Territories, or Districts, so destitute of banks, as banks of deposit," &tc. Here is an express recognition by Congress of the power of a State bank to create an agent for the purpose of dealing as a bank in another State or Territory.
It has been said that, as there is no law of comity, under the law of nations, between the States, it remains for the Legislatures of the several States to adopt, in their conduct towards each other, as much of the principle of comity as they please. Here, then, there is to be negotiation between the States, to determine how far they will observe this law of comity. They are thus required to do precisely what they cannot do. States cannot make treaties nor compacts. A State cannot negotiate. It cannot even hold an Indian talk! And now, I would ask how it happens, at this time of the day, that this court shall be called upon to make a decision contrary to the spirit of the Constitution, and against the whole course of decisions in this country and in Europe, and the undisputed practice under this Vol. m. 50