Louisiana v. Texas/Concurrence Brown

by Henry Billings Brown

United States Supreme Court

176 U.S. 1

Louisiana  v.  Texas

 Argued: October 24, 1899. --- Decided: January 15, 1900

Mr. Justice Brown concurring in the result:

I am not prepared to say that if the state of Texas had placed an embargo upon the entire commerce between Louisiana and Texas the state of Louisiana would not be sufficiently representative of the great body of her citizens to maintain this bill.

In view of the solicitude which from time immemorial states have manifested for the interest of their own citizens; of the fact that wars are frequently waged by states in vindication of individual rights, of which the last war with England, the opium war of 1840 between Great Britain and China, and the war which is now being carried on in South Africa between Great Britain and the Transvaal Republic, are all notable examples; of the further fact that treaties are entered into for the protection of individual rights, that international tribunals are constantly being established for the settlement of rights of private parties.-it would seem a strange anomaly if a state of this union, which is prohibited by the Constitution from levying war upon another state, could not invoke the authority of this court by suit to raise an embargo which had been established by another state against its citizens and their property.

An embargo, though not an act of war, is frequently resorted to as preliminary to a declaration of war, and may be treated under certain circumstances as a sufficient casus belli. The case made by the bill is the extreme one of a total stoppage of all commerce between the most important city in Louisiana and the entire state of Texas; and while I fully agree that resort cannot be had to this court to vindicate the rights of individual citizens, or any particular number of individuals, where a state has assumed to prohibit all kinds of commerce with the chief city of another state, I think her motive for doing so is the proper subject of judicial inquiry.

It is true that individual citizens whose rights are seriously affected by a system of nonintercourse might, perhaps, maintain a bill of this kind; but to make the remedy effective it would be necessary to institute a multiplicity of suits, to carry on a litigation practically against a state in the courts of that state, and to assume the entire pecuniary burden of such litigation, when all the inhabitants of the complaining state are more or less interested in the result.

But the objection to the present bill is that it does not allege the stoppage of all commerce between the two states, but between the city of New Orleans and the state of Texas. The controversy is not one in which the citizens of Louisiana generally can be assumed to be interested, but only the citizens of New Orleans, and it therefore seems to me that the state is not the proper party complainant.