Unpacking the Originalist Argument for Maximalist Personal Jurisdiction, Part IV: Picquet v. Swan

This is the fourth in a series of posts questioning the originalist argument for unlimited personal jurisdiction in the federal courts. The prior posts have argued that many of the sources cited by proponents of the theory, including early admiralty cases and twentieth-century cases about the extraterritorial reach of Congress’s prescriptive jurisdiction, do not bear on whether the founding generation believed Congress could override extrinsic limits on the federal courts’ adjudicative authority.

The best evidence in support of the originalist theory—and the one most relied on by judges and advocates who embrace that theory—is an 1828 circuit court case from Massachusetts, Picquet v. Swan. Alongside Picquet, proponents of the theory often cite an earlier circuit court case to which Picquet cites, Ex Parte Graham (C.C. E.D. Pa. 1818), and a subsequent Supreme Court case that in turn cites Picquet, Toland v. Sprague (1838).

This post walks through these three cases to explain how they add little, if anything, to this debate. None of these cases directly addresses the question of whether Congress could override limits on personal jurisdiction, and some of the most quoted passages in these decisions have been taken out of context. There is one sentence of dictum in Picquet that might imply congressional power to override limits on personal jurisdiction (but it might not). One ambiguous sentence of dictum about a question not before the court in a circuit court case from 1828 is a very slender reed on which to revolutionize how the lower courts have been evaluating limits on personal jurisdiction under the Fifth Amendment.

Procedural Context

Some background procedural context will make the import and holdings of these three cases easier to understand: in particular, the nature of the original circuit courts, section 11 of the Judiciary Act of 1789, and the Process Acts of 1789 and 1792.

The Original Circuit Courts

Ex Parte Graham and Picquet were decisions issued by the original circuit courts, which should not be confused with today’s circuit courts of appeals. The original circuit courts (which no longer exist) heard some appeals from the district courts, but much of their dockets were cases heard in the first instance. Ex Parte Graham and Picquet were such cases: these are trial court decisions, not appeals. Though authored by Supreme Court justices “riding circuit,” they did not carry precedential weight the way that decisions issued by today’s circuit courts of appeals do. (For that matter, the very concept of the “law of the circuit”—that modern circuit court panel decisions are precedential until displaced by a later en banc decision or the Supreme Court—did not develop until the mid-twentieth century.)

Section 11 of the Judiciary Act of 1789

Ex Parte Graham, Picquet, and Toland all discuss section 11 of the Judiciary Act of 1789. Section 11 begins by granting diversity jurisdiction to the original circuit courts. A subsequent portion of the section further provided:

But no person shall be arrested in one district for trial in another, in any civil action before a circuit or district court. And no civil suit shall be brought before either of said courts against an inhabitant of the United States, by any original process in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving the writ ….

While this portion of section 11 is typically characterized as a venue provision, this trio of decisions treated it as a constraint on service of process, which in turn constrained the exercise of personal jurisdiction by the lower federal courts.

The Process Acts

Picquet and Toland both confronted a tension between section 11’s venue/service provision and the Process Act of 1792. The Process Act of 1792 incorporated the Process Act of 1789, which in turn provided that:

until further provision shall be made, … the forms of writs and executions, except their style, and modes of process and rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same.

In other words, the district and circuit courts when hearing cases at law were generally to follow the procedures used by the state courts as of 1789. (Note that this provision only applied to cases at law; process in equity and admiralty cases was not similarly tied to the practice of the state courts.)

The promised “further provision” was made by the Process Act of 1792, which directed that the federal courts in cases at law were to continue using state court procedure as it had existed in 1789 (specifically, they were to use “the forms of writs, executions and other process, except their style[,] and the forms and modes of proceeding in suits in those of common law shall be the same as are now used” under the Process Act of 1789).

In Picquet and Toland, the local state courts permitted process on defendants in situations beyond those mentioned in section 11 of the Judiciary Act. Did those state court provisions for service apply in federal court via the Process Act, or did section 11 displace them? Could the two be reconciled by interpreting section 11 as limiting only process served on “inhabitants” of the United States, leaving unrestricted the permissible means of serving process on those outside of the United States?

Before we get to how Picquet and Toland answered that question, let us back up and begin with the simpler case of Ex Parte Graham.

Ex Parte Graham

In Ex Parte Graham, the District of Rhode Island had previously adjudicated a prize case and was trying to track down “one Peter Graham, of Philadelphia, merchant,” who had possession of some of the cargo that the court had awarded to the libellants (plaintiffs). The District of Rhode Island issued a warrant of attachment to the districts in which it thought Graham might be found, asking the marshals of those districts to either arrest Graham or to “seize, arrest, and sequester” his goods to help execute the Rhode Island judgment.

Justice Washington, writing for the Circuit Court of the Eastern District of Pennsylvania, held that the federal court in Rhode Island could not issue a warrant across district lines. Reasoning from first principles, he stressed the difference between what we would today call subject-matter jurisdiction and personal jurisdiction: that even though the federal courts sitting in admiralty were effectively “unlimited as to the subject matter of which they have cognizance,” “it is nevertheless essential to the exercise of this jurisdiction by any particular court, that the person or thing against whom or which the court proceeds, should be within the local jurisdiction of such court.” Even in the most aggressive British precedent, he pointed out, “it was never pretended that the process of the court, could go into the neutral country, to compel an appearance, or to enforce the execution of the sentence.” From these principles requiring a territorial nexus between the adjudicating court and the defendant, Justice Washington reasoned that Congress’s decision to break the federal judiciary into separate districts meant that it intended those districts to be territorially bounded in their adjudicatory power.

Justice Washington saw the venue provision of section 11 of the Judiciary Act as further indicating the congressional intent that the lower federal courts be limited by their district boundaries. Furthermore, if Congress had meant to “vest in the courts of the United States an extra-territorial jurisdiction in prize causes, over persons and things found in a district other than that from which the process issued, it would seem to be proper, if not absolutely necessary, at the same time to prescribe the mode of executing the process.” As he pointed out, all sorts of practical difficulties would arise if marshals were to hand off those arrested for contempt to the marshals of other districts, as such powers hadn’t been provided for in the Judiciary or Process Acts.

This last passage has been taken out of context by some proponents of unbounded personal jurisdiction. To be clear, when Justice Washington referred to “extra-territorial jurisdiction in prize causes,” he meant the power of the lower federal courts to reach across the district borders set by Congress into other federal districts. He was not talking about international extraterritoriality, but the power to assert jurisdiction “over persons and things found in a district other than that from which the process issued.” (Ex Parte Graham, after all, was an entirely domestic case.)

Ex Parte Graham simply does not bear on the originalist argument for unbounded personal jurisdiction. No one, today or then, would argue that Congress lacks the power to enable a federal court in one district to extend process into another district. (Indeed, Congress had already done so, for example by enabling federal courts to compel the appearance of witnesses who lived in other districts but within 100 miles of the court.) Justice Washington’s opinion says nothing about Congress’s power to extend process beyond U.S. territory.

If anything, Ex Parte Graham seems to indicate there were real limits on personal jurisdiction. But at the very least, it offers no affirmative support for the theory of maximalist personal jurisdiction.

Picquet v. Swan

Unlike Ex Parte Graham, Picquet was a transnational case: the plaintiff (Picquet) was a French citizen, and the defendant (Swan)—although a U.S. citizen from Boston—had for many years been residing in Paris. Picquet commenced suit in the Circuit Court for the District of Massachusetts, invoking via the Process Act a Massachusetts statute that permitted “foreign attachment,” or the seizure of property within the state that belongs to an absent defendant in order to induce the defendant’s appearance in the case (what we now call quasi in rem type 2 jurisdiction).

Although Pennoyer v. Neff (1878) would later endorse “foreign attachment” as an acceptable basis of personal jurisdiction, it was still a disfavored method of obtaining personal jurisdiction in the 1830s. Justice Story, writing for the circuit court, reasoned that this less traditional form of personal jurisdiction must be explicitly authorized by Congress and that the requisite congressional intention should not be inferred from the Process Act’s general incorporation of state procedure.

Justice Story’s Reasoning

First, Justice Story emphasized that subject-matter jurisdiction was a necessary but not sufficient condition for a court to have adjudicative authority. He explained, for example, that “[t]he jurisdiction of the circuit court in this case, so far as it depends upon the citizenship and alienage of the parties, may for the present be assumed de bene esse to be complete. But this alone is not sufficient to give the court complete authority to proceed to judgment. There must exist other facts and circumstances as a just foundation of jurisdiction.”

Second, citing Ex Parte Graham, he reasoned that Congress had chosen not to extend the full scope of permissible personal jurisdiction to the lower federal courts—that by dividing the country into judicial districts, Congress intended those district boundaries to have jurisdictional import. Even without the venue provision of section 11 of the Judiciary Act, then, “the general principles of law must be presumed to apply . . . . Whatever might be the extent of [the federal courts’] jurisdiction over the subject matter of suits, in respect to persons and property, that jurisdiction is available only within the [territorial] limits of the district.” Congress could have authorized broader personal jurisdiction (e.g., within the boundaries of the United States as a whole) but had chosen to authorize something less.

Third, he identified the common law default against which Congress was legislating. Justice Story thought in-person service of process within a court’s territorial ambit was so ingrained as part of the common law that Congress need not explicitly authorize it. Attachment jurisdiction, in contrast, “is not a right growing out of the common law, but everywhere, at least in countries governed by the common law, depends upon statute regulations.”

To be clear, his invocation of the common law here differs from the law of nations or natural justice. As invoked in Story’s reasoning, the common law affirmatively authorizes something without the need for additional implementing legislation. That is different from saying that a form of service is prohibited by an extrinsic body of law (like the law of nations), but that Congress could choose to override that limitation if it desired. Justice Story seemed to see foreign attachment as existing someplace in between: as being permissible but requiring affirmative authorization.

From these general principles, Justice Story reasoned that section 11 of the Judiciary Act, by identifying limits on where U.S. inhabitants can be sued, did not mean to silently the assertion of personal jurisdiction over all non-inhabitants. Congress in section 11 was clarifying limits on where inhabitants could be sued in order to remove any doubt, he reasoned, but without any intention of changing the background norms for non-inhabitants. While Congress could authorize personal jurisdiction over foreign inhabitants based on attachment of their property in the United States, that was such “a new and extraordinary” form of process that such authorization should not be implied from general statutes.

To recap, Justice Story thought the common law authorized in-person service within the court’s territory even in the absence of statutory authorization. He also thought there were other forms of service that would be permissible, but Congress would need to affirmatively authorize their use. (This is still the rule today for both state and federal courts.) There are also intimations in the decision that there were outer limits on the assertion of jurisdiction. The question for us is whether Justice Story thought that Congress could supersede those outer limits if it explicitly said so.

Oft-Quoted Sentences

Proponents of unbounded personal jurisdiction read a couple sentences in Picquet as establishing that Justice Story did think Congress could override all limits on personal jurisdiction.

At one point, Justice Story asserts that “[i]f congress had prescribed such a rule, the court would certainly be bound to follow it, and proceed upon the law.” The preceding sentence describes the “such a rule” to which Story was referring: that “an alien, who has never been within the United States, may be rightfully served with a summons or other process by any attachment of his property, however small, within the district, and be bound thereby to appear and submit to the jurisdiction of the court, or otherwise have a judgment against him in invitum.” In other words, Justice Story was just reiterating that Congress could authorize quasi in rem jurisdiction of the sort that Pennoyer would later indicate did not violate due process (but see Shaffer v. Heitner (1977)). This oft-quoted sentence does not mean that if Congress authorizes any assertion of personal jurisdiction, the courts would be bound to follow it.

That leaves the following passage from Picquet:

The argument supposes, that as a general [i.e., subject-matter] jurisdiction is given in cases, where an alien is party, if he is not an inhabitant of the United States, and has not any property within it, (for to this extent it must reach,) still he is amenable to the jurisdiction of any circuit court, sitting in any state in this Union. So that a subject of England, or France, or Russia, having a controversy with one of our own citizens, may be summoned from the other end of the globe to obey our process, and submit to the judgment of our courts. Such an intention, so repugnant to the general rights and sovereignty of other nations, ought not to be presumed, unless it is established by irresistible proof.

This is the best evidence in support of the originalist argument for unbounded personal jurisdiction. Standing on its own, however, it does not establish much.

First, it is not clear what would happen if such an intention were established by irresistible proof. Would that intention then be binding? Or would it just force the court to confront a harder question about the permissibility of the statute? Proponents of maximalist personal jurisdiction work around this ambiguity by smushing this passage together (p.4) with Justice Story’s subsequent comment that “[i]f congress had prescribed such a rule, the court would certainly be bound to follow it, and proceed upon the law.” But that subsequent comment pertained specifically to attachment jurisdiction, which is explicitly not what Justice Story is talking about in this passage about assertions of jurisdiction “so repugnant to the general rights and sovereignty of other nations.” Instead, he is talking about an assertion of jurisdiction where neither the defendant nor his property is within the United States.

Second, this statement about jurisdiction “so repugnant to the general rights and sovereignty of other nations” comes in the midst of a tangent on a hypothetical and is not part of the ratio decendi.  In fact, all of Justice Story’s discussion of section 11 and the Process Act was ultimately dicta. At the very end of the opinion, Justice Story identified a more straightforward flaw: Picquet did not assert that Swan was a citizen of any U.S. state (in addition to being a U.S. citizen), which is a prerequisite for diversity jurisdiction.

Toland v. Sprague

Because Picquet was just the decision of a first-instance court, and because the key language in Picquet is ambiguous dicta, proponents of unbounded personal jurisdiction also invoke Toland, a Supreme Court case that endorsed Picquet’s reasoning when similarly considering the interplay between section 11 of the Judiciary Act and the Process Act.

In Toland, the defendant (Horatio Sprague) was a citizen of Massachusetts but had been residing in Gibraltar for years. The plaintiff (Henry Toland), a citizen of Pennsylvania, sued Sprague for breach of contract (assumpsit) in the Circuit Court of the Eastern District of Pennsylvania. To obtain jurisdiction over Sprague, Toland used process by “foreign attachment,” as provided by Pennsylvania law. In assessing the permissibility of doing so in a federal court, the Supreme Court “refer[ed] to the reasoning in [Picquet], generally, as having great force” and “content[ed] [itself] with stating the substance of [Picquet] in a condensed form, in which we concur.”

The Supreme Court agreed with Picquet that foreign attachment was a more unusual form of establishing personal jurisdiction that had to be specifically authorized by Congress. It thus opined that Pennsylvania’s statute approving foreign attachment could not be applied by the federal circuit court despite the Process Act, at least in the absence of a more explicit federal statute. “We think that the opinion of the legislature is thus manifested to be, that the process of a circuit court cannot be served without the district in which it is established; without the special authority of law therefor.”

Toland thus suggests that Congress can legislate quasi in rem jurisdiction, or other forms of service within the United States that cross district boundaries. It says nothing about whether Congress could authorize personal jurisdiction when neither the defendant nor his property was present within the district, or in the absence of any other nexus to the United States. Further, while Toland agreed with Picquet’s interpretation of section 11 and the Process Act, there is no indication that the Supreme Court was affirmatively adopting Story’s aside about requiring “irresistible proof” of congressional intent to legislate unlimited personal jurisdiction (or the suggestion, if Story meant to imply it, that such a statute would be enforceable). If anything, the Court’s adoption of Picquet’s reasoning “generally” and “in a condensed form” suggests the opposite.

Not only that, but this entire discussion of attachment jurisdiction in Toland was itself dicta. Because Sprague showed up to claim his property and answered the suit on the merits, he waived the personal jurisdiction objection. He could do so, the Toland Court acknowledged, because this limit on personal jurisdiction was a matter of personal privilege. (That is, limits on personal jurisdiction were not understood purely in terms of sovereign power, as the proponents of unlimited jurisdiction have asserted.) The Court in Toland thus went on to resolve the parties’ objections related to the merits of the dispute.

In fact, four Justices noted that the Court’s entire discussion of attachment jurisdiction was unnecessary and not part of the ratio decendi. As Chief Justice Taney pointed out, the question of whether state statutes permitting foreign attachment could be applied in federal courts had split the lower courts, and there were thus significant reliance interests at stake. (Indeed, two other Justices affirmatively thought that state statutes permitting attachment jurisdiction should be applied by the federal courts via the Process Act.)

In short, the Supreme Court did not—and has never—endorsed the idea that Congress can legislate any and all personal jurisdiction it likes. The closest it has come is contentious dicta in a single case that endorsed the reasoning of a lower court that, in its own dicta, may have suggested Congress could pass such a statute.

Conclusion

If Picquet v. Swan is the best that the proponents of unlimited personal jurisdiction can do, it is not enough. The clearest statement in that case—that “the court would certainly be bound to follow” a congressional statute—referred only to quasi in rem jurisdiction, which Pennoyer would later endorse as consonant with due process. Its other reference to a truly unlimited assertion of personal jurisdiction is ambiguous as to whether such a statute, if clearly worded, would in fact be controlling. And that reference was an aside within a discussion that was, at best, an alternative holding. Toland did not endorse that particular suggestion when it agreed with Picquet’s primary discussion of the use of state statutes authorizing attachment jurisdiction—a portion of Toland that was itself dicta, and contentious dicta at that.

As I have explained in prior posts, the admiralty cases do not provide examples of or support for unlimited personal jurisdiction either. And the early federal cases’ references to international law rather than due process as informing limits on personal jurisdiction do not, on their own, establish that those limits could be superseded by Congress.

In short, the judges and advocates who insist that the original understanding was that Congress had unlimited power to assign personal jurisdiction to the federal courts have no direct evidence to support their position.  They are instead recycling promising-sounding quotations taken out of context that do not mean what they are claimed to mean: Hamilton’s reference to the subject-matter jurisdiction of the federal courts being coextensive with the legislative power, for example, or Story’s statement in Picquet that the federal courts would be bound to follow a statute authorizing quasi in rem jurisdiction. The proponents’ more general argument constructed from allusions to international law and a lack of reference to due process does not, as a logical matter, add up “ineluctably” to the conclusion that Congress could override limits on personal jurisdiction.

I am not yet sure what I think the position of Founding-era courts on personal jurisdiction in fact was. I am not myself an originalist, so my personal view is that it does not matter. (Instead, I think that due process is an evolving baseline and that the Due Process Clauses provide a critical check on the power of the state and federal governments to assert authority over individuals and their property interests.) But if we all must be originalists now, we should at least be sure we’ve gotten the history right. The sweeping claim that Congress had unlimited power to hale defendants around the world into U.S. courts has not yet been adequately established.