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RUTLEDGE, J., concurring.

meaning in Article III, § 2, where it now includes corporations, than it has in the privileges and immunities clause of Article IV, § 2,16 or in the like clause of the Fourteenth Amendment." Instances might, but need not, be multiplied.

In construing the diversity clause we are faced with the apparent fact that the Framers gave no deliberate consideration one way or another to the diversity litigation of citizens of the District of Columbia. And indeed, since the District was not in existence when the

guarantee of a jury trial and then observed: "The Sixth Amendment provided further assurances. It added that in all criminal prosecutions the accused shall enjoy the right 'to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." "

Thus it has been uniformly assumed that in criminal prosecutions a resident of the District of Columbia is possessed of Sixth Amendment rights "to a speedy . . . trial," United States v. McWilliams, 69 F. Supp. 812, affirmed 163 F. 2d 695; "to be informed of the nature and cause of the accusation," cf. Johnson v. United States, 225 U. S. 405, 409, 411; "to be confronted with the witnesses against him," Curtis v. Rives, 123 F. 2d 936, 937; Jordon v. Bondy, 114 F. 2d 599, 602, "to have compulsory process for obtaining witnesses in his favor," ibid.; "and to have the Assistance of Counsel for his defence," Noble v. Eicher, 143 F. 2d 1001; see Williams v. Huff, 142 F. 2d 91, 146 F. 2d 867.

15 See note 12 supra. Compare Louisville, C. & C. R. Co. v. Letson, 2 How. 497, with Bank of the United States v. Deveaux, 5 Cranch 61. 16 Paul v. Virginia, 8 Wall. 168, 177. It is to be noted, however, that Hamilton's 80th Federalist expressly justified the grant of diversity jurisdiction as effectively implementing the guaranties of the privileges and immunities clause of Article IV.

17 Hague v. C. I. O., 307 U. S. 496, 514, cf. id. at 527; Grosjean v. American Press Co., 297 U. S. 233, 244; Orient Insurance Company v. Daggs, 172 U. S. 557, 561.

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Constitution was drafted, it seems in no way surprising that the Framers, after conferring on Congress plenary power over the future federal capital, made no express provision for litigating outside the boundaries of a hypothetical city conjectured controversies between unborn citizens and their unknown neighbors. Under these circumstances I cannot accept the proposition that absence of affirmative inclusion is, here, tantamount to deliberate exclusion.

If exclusion of District citizens is not compelled by the language of the diversity clause, it likewise cannot be spelled out by inference from the historic purposes of that clause. We have, needless to say, no concern with the merits of diversity jurisdiction; 18 nor need we resolve scholarly dispute over the substantiality of those local prejudices which, when the Constitution was drafted, the grant of diversity jurisdiction was designed to nullify.19 Our only duty is to determine the scope of the jurisdictional grant, and we must bow to congressional determination of whether federal adjudication of local issues does more good than harm. But, in resolving the imme

18 For contrasting views prior to Erie R. Co. v. Tompkins, 304 U. S. 64, compare Yntema, The Jurisdiction of the Federal Courts in Controversies between Citizens of Different States, 19 A. B. A. J. 71 (1933), and Yntema and Jaffin, Preliminary Analysis of Concurrent. Jurisdiction, 79 U. Pa. L. Rev. 869 (1931), with Frankfurter, A Note on Diversity Jurisdiction-In Reply to Professor Yntema, 79 U. Pa. L. Rev. 1097 (1931), and Frankfurter, Distribution of Judicial Power between United States and State Courts, 13 Corn. L. Q. 499, 520530 (1928). For post-Erie analyses see Shulman, The Demise of Swift v. Tyson, 47 Yale L. J. 1336 (1938); Clark, State Law in the Federal Courts: The Brooding Omnipresence of Erie v. Tompkins, 55 Yale L. J. 267 (1946).

19 See note 18, and see also Friendly, The Historic Basis of Diversity Jurisdiction, 41 Harv. L. Rev. 483 (1928); Warren, New Light on the History of the Federal Judiciary Act of 1789, 37 Harv. L. Rev. 49, 81-90 (1923); Frank, Historical Bases of the Federal Judicial System, 13 Law & Contem. Prob. 3, 22-28 (1948).

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diate issue, we should not blink the fact that, whatever the need for federal jurisdiction over suits between litigant citizens of the several states, the same need equally compels the safeguards of federal trial for suits brought by citizens of the District of Columbia against citizens of the several states. Conversely, if we assume that today's ruling tacitly validates suits brought by state citizens against citizens of the District of Columbia, it would seem the plaintiff citizen of a state is as deserving of a federal forum when suing a District defendant as when suing a defendant in a neighbor state.

Marshall's sole premise of decision in the Hepburn case has failed, under the stress of time and later decision, as a test of constitutional construction. Key words like "state," "citizen," and "person" do not always and invariably mean the same thing. His literal application disregarded any possible distinction between the purely political clauses and those affecting civil rights of citizens, a distinction later to receive recognition.

20

Moreover, Marshall himself recognized the incongruity of the decision: "It is true that as citizens of the United States, and of that particular district which is subject to the jurisdiction of congress, it is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the union, should be closed upon them." But, he added, "this is a subject for legislative not for judicial consideration." 2 Cranch at 453.

With all this we may well agree, with one reservation. In spite of subsequent contrary interpretation and Marshall's own identification of the statutory word "state" with the same word in the Constitution, we cannot be unreservedly sure that the last-quoted sentence referred to the process of constitutional amendment rather than

20 Cf. notes 14-17 supra and text.

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congressional reconsideration. If the former had been the intent, it seems likely it would have been stated in words not so characteristic of the latter process. The Court was construing the statute," which made no explicit inclusion of citizens of the District. Whether, if it had done so, the Court's ruling would have been the same or, if a later act had sought to include District citizens, it would have been held unconstitutional, we can only speculate.

But I do not rest on this ambiguity, more especially in view of the later decisions clearly accepting the Hepburn decision as one of constitutional import. On the other hand, the later and general repudiation of the decision's narrow and literal rule for construing the Constitution, in which Marshall's own part was not small, has cut from beneath the Hepburn case its only grounding and with it, in my judgment, the anomaly in result which the ruling always has been. It is perhaps unnecessary to go so far in criticizing the decision as was done by a judge who long afterwards bowed to it.22 But the time has come

21 The arguments for the defendant were two, one statutory, the other constitutional. They were stated as follows: "Even if the constitution of the United States authorises a more enlarged jurisdiction than the judiciary act of 1789 has given, yet the court can take no jurisdiction which is not given by the act. . . .

"This is not a case between citizens of different states, within the meaning of the constitution." 2 Cranch at 449–450.

22 After noting that the Hepburn decision had been extended by New Orleans v. Winter, 1 Wheat. 91, to territories and their citizens, the opinion in Watson v. Brooks, 13 F. 540, stated at 543-544: "But it is very doubtful if this ruling would now be made if the question was one of first impression; and it is to be hoped it may yet be reviewed and overthrown.

"By it, and upon a narrow and technical construction of the word 'state,' unsupported by any argument worthy of the able and distinguished judge who announced the opinion of the court, the large and growing population of American citizens resident in the District of Columbia and the eight territories of the United States are deprived of the privilege accorded to all other American citizens, as

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when the hope he expressed for removing this highly unjust discrimination from a group of our citizens larger than the population of several states of the Union should be realized.

III.

Pragmatically stated, perhaps, the problem is not of earth-shaking proportions. For, by present hypothesis, federal court disposition of diversity suits must be in accord with local law in all matters of substance. But symbolically the matter is of very considerable importance. Reasonable men may differ perhaps over whether or, more appropriately, to what extent citizens of the District should have political status and equality with their fellow citizens. But with reference to their civil rights, especially in such a matter as equal access to the federal courts, none now can be found to defend discrimination against them save strictly on the ground of precedent.

I cannot believe that the Framers intended to impose so purposeless and indefensible a discrimination, although they may have been guilty of understandable oversight in not providing explicitly against it. Despite its great age and subsequent acceptance, I think the Hepburn decision was ill-considered and wrongly decided. Nothing hangs on it now except the continuance or removal of a gross and wholly anomalous inequality applied against a substantial group of American citizens, not in relation to their substantive rights, but in respect to the forums available for their determination. This Court has not

well as aliens, of going into the national courts when obliged to assert or defend their legal rights away from home. Indeed, in the language of the court in Hepburn v. Ellzey, supra, they may well say: 'It is extraordinary that the courts of the United States, which are open to aliens, and to the citizens of every state in the Union, should be closed upon them.' But so long as this ruling remains in force, the judgment of this court must be governed by it."