New Jersey v. New York (30 U.S. 284)

MR Wirt, for the complainant, stated, that the subpoena had been regularly served upwards of two months, and there was no appearance on the part of the state of New York.

The seventeenth section of the judiciary act of 1789, authorizes the court to make and establish all necessary rules for the conducting the business of the courts of the United States. This court has such a power without the aid of that provision of the law.

The seventh rule of this court, which was applicable to this matter, was made at August term 1791. 'The chief justice, in answer to the motion of the attorney general, informs him and the bar, that this court consider the practice of the court of king's bench and of chancery, in England, as affording outlines for the practice of this court; and that they will from time to time make such alterations therein, as circumstances may render necessary. 1 Cond. Rep. viii.

In 1796 the tenth rule was adopted. 'Ordered, that process of subpoena issuing out of this court in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and further, that if the defendant on such service of the subpoena should not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte.' Ibid.

Construing these two rules together, they bring us in the case before the court, to that part of the English practice where the party may proceed to a hearing. There is no necessity for those proceedings here, which are resorted to in England to compel an appearance.

Nor would the practice in England be proper in the case before the court. The object of the bill is to quiet a title: it is a bill of peace. Here the rule considers the party, when served with process, in the same situation as if he had appeared.

The question is what is to be done when all the process to compel an appearance is exhausted: what is the next step? It is to take the bill, pro confesso: but in England, formerly, by a standing rule in chancery, before this can be done the party must have appeared.

Afterwards, to prevent the process of the court being eluded, the statute of 25 George II was enacted, by which it was provided, that if no appearance was entered by one who had absconded, the court would make an order for an appearance, and if no appearance was entered, the bill should be taken pro confesso.

This statute regulated the practice in the courts of chancery of England in 1791, when the seventh rule of this court was adopted. But this statute applied only to the case of a party absconding, and it was only to force an appearance. In the present case, as has been observed, we stand as if all the proceedings for such a purpose had been exhausted.

Different practices prevail in relation to such a case in the several states of the union. In New Jersey the practice is to file the proofs in the cause, and proceed to a hearing. This is not the course which is pursued in Virginia. As to the practice in England, cited 2 Pr. Wm. 556. Moseley, 386. Har. Chancery Practice, by Newland, 156. 1 Grant's Chancery Practice, 96.

Something is now to be done in this case: and it is for the court to determine what that may be. If the court desire it, it is fully competent to them to make any new rule relative to the future proceedings in the case.

In the court of chancery in England the party could take a decree, pro confesso, and consider it as final. But this is not the wish of the complainant. It is desired that the proceedings should be carried on with the utmost respect to the other party; and the wish of the state of New Jersey is to have an examination of the case, and a final decree after such an examination.

It is therefore proposed that the court direct a rule to be entered that the bill be taken pro confesso, unless the party against whom it is filed appear and answer before the rules day in August next; and if they do not, that the cause be set down for a final hearing at the next term of this court, on such proofs as the complainants may exhibit.

Mr Justice Baldwin suggested that it might be proper to argue certain questions arising in this case in open court: such as, what was the proper duty of the court in the case? What was the practice in England? And whether this court had power to proceed in suits between states without an act of congress having directed the mode of proceeding? He did not propose this as a matter personal to himself; but as a member of the court.

Mr Wirt said that the jurisdiction which was to be exercised was given by the constitution, and the seventeenth section of the act of congress authorised the court to establish such rules as to the manner in which the power should be executed. There are cases in which the court have taken this jurisdiction. The case of Chisholm vs. The State of Georgia, 2 Dall. Rep. 219; 2 Condens. Rep. 635. Grayson vs. The State of Virginia, 3 Dall. Rep. 320; 1 Condens. Rep. 141.

When the subpoena was asked for at last term of this court, (3 Peters, 461), the case of Chisholm vs. The State of Georgia was then particularly referred to: and it was considered that although the amendment to the constitution has taken away the jurisdiction of this court in suits brought by individuals against a state, it has left it jurisdiction in suits between states, in the situation in which it stood originally. The court, in awarding the process of subpoena, had reference to these cases.

If an elaborate argument of the questions which the case presents is desired, time is asked to prepare for it; and sufficient time to give notice to the attorney general of the state of New Jersey to attend and assist in the argument.

Mr Chief Justice MARSHALL delivered the opinion of the Court.