This grеat caufe comes before, the Court, orfcli motion made by the Attorney-General, that an order be made by this Court to the following effe.dl:—« That, unlefs the State of Georgia fhali, after reafonkble notice of this mo- “ tion, caufe an appearance to be entered on behalf, of the <( faid State, on the fourth day of next Term, orfhew caufe to “ the contrary, judgment fhali be .entered for the Plaintiff, and ■ “ a. writ .of enquiry fhali he awarded.” Before fuch an order be made, it is'proper that this Court fhould be fatisfied it hath cognizance of the fuit 3 for, to be fure we ought not to enter a conditional judgment (which this would be) in a cafe where we were not fully perfuaded we had authority to do' fo.
This is the firfl inflance wherein the important queilion involved in this caufe has com'e regularly before the Court. • In the
Mdryland
cafe it' did not, becaufe the Attorney-General of. the State voluntarily appeared. We could nor, therefore, without the gieatefl impropriety, have taken up the queition fuddenly. That cafe has lince been compromiied-: But, had it proceeded to trial, and a' verdidl been given for the Plaintiff, it would baVe been our duty, previous to our. giving judgment, to have well
The action is au'adtionof ajfumpfit. The-particular q.ueftion. then before the Court, is, will an action of affampftt lie againft a State 2 This particular queltion íabílráfted from the general one, viz. Whether, a State can in any inílance be fued ?). I took the liberty .to. propofe to the conlideration of the Attorney-General, lalt Term. I did fo, becaufe I have often found a great deal of eonfufion to arii'e from taking too large a view at once, and I had found myfelf -embarrafled on, this very fubjedt,; until I confidered the abítradt queílion itfelf. The- Attorney-General has fpoken to it, in Jefeence to my requeft, as he has been pleafed to intimate, but. he fpoke to this pa ticula-r queltion llightly, conceiving it to. be involved in the general one ; and after eitablilhing, as lie thought, that point, he feemed to confider the other followed of courts. He exprefledi indeed, fome doubt how to prove what appeared. £b.рlain.- If feemed to him (if I recoiled! right) to depend principally on the- folution of this fimple queftion; can a State -aflume ? But the Attorney-General. mull kiio.w, that in England, certain judicial proceedings not inconfiftent with the fovereignty, may cake place againft the Crown, but that an, adtionof ajfumpfit;, will not lie. Yet ftfrely the King can aflume-as well: as a State. So. can fche United itates, them felves, as. well as any State in, the Union : .Yet, the Attorney-General himfelf has taken.fome pains, to ihew, that no action- whatever is. maintainable againft the United- States,. 1 fihall, therefore, confine myfelf, as much as. poffible, to the -particular queltion before the Court, though every thing I have to fay upon it will effcdt every kind of fult, the ohjedt of which, is to compel the payment of money by a.State,.
Tbe-queftioii, as-1 before obfezved, is,—will anadtion
oí af fumpftt
lie ag.ainft a State i If it will, it mult b.e in virtue of the Conftitutjon of. the
United States,
and of -fome law of
Com-, grcfs
conformable thereto. The part of-the Confut'dtion concerning the-Judicial Rower, is as follows, viz :
Art.
3.
Jedt.
2. The judicial Power {hall extend, (. t.) To.all cafes, in, law and equity,, arifing under the Gonftitution, the law.s of .the
United'
States, and treaties made, or which Stall be made, under their authority.-' (2.) To .all cafes aftedting Ambafladors, or other-public Miniíters,, and- Confuís; (3.) To all'cafes of Admiralty i>id Maritime Jurifdidticii; (.4.) To centro verfies to which, thei
The words of-the general judicial a<ft, conveying the author. rity of the Supreme Court, under the Conftitution, fo far a3 they, concern this queftion, areas follow:—Sect. 13. « That the Supreme Court íhall have exclufive jurifdkftion of all con-iroverfies of a civil nature, where a State is a party, except between a State and its citizens; and except alfo, between a State and citizens of other States, or aliens, in which latter cafe it íhall have original, but not exclufive' jurifdi&ion- And ihali have, exclufively, all jurifdiftion of fuits or proceedings againft Ambafladors, or other public Minifters, or their domeftics, or domeftic fervants, as a court of law’ can have or exercife confif-tently with the law of nations ; and original, but not exclufive 'jurifdhSion 'of. all fuits brought by Ambafladors, or other pub-.lie Minifters, .or in which a Conful, or Vice-Conful, íhall be a party.”
- The Supreme Court hath, therefore, first. Exclufive. j urifdiction in every controverfy of a civil nature : if. Between two or more-States, id. Between a State and a foreign State. 3d. Where a.fuit or proceeding is depending againft Ambafladors, other public minifters, or their domeftics, or domeftic fervants. ■SECOND- Original, but not exclufive jurifdi&ion, 1fl. between a-State and citizens of other States, id. Between a State and foreign citizens or iubje&s.. *$d. Where a fuit is brought byAmbaf-fadors, or other public minifters.. 4th, Where a confuí, or vice-conful, is a party The fuit now before the Court (if maintain able at all) comes'within the latter defeription, it being a fuit againft a State by a citizen of another State.
The Conftitution is particular in exprelling the
parties
who may bé the obje.&s Of the jurifdiftion in any of thefe cafes, but in refpeét-to the fuhjeft-matter upon which fuch j-u-rifdi£Hoa is-tb be exercifed,' ufes..the- word “ controverfies” only. The a£t of
Ccngrefs
more particularly mentions
civil
contrQverfies, a qualification of the general word-in the Conftitútiorf, w*hichT daatot- double very,reafanablfc'tnan will think, well warrantc'd, for
A general queftion of great importance- here occurs. 'What controverfy of a civil nature can be maintained againft a State by an individual i The framers of the Conftitution, I prefume, muft have meant one of two things : Either r. In the.conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the general Government (which it muft be admitted are full and.difcretionatyj within' the reftri£tions of the Conftitution itfelf), to refer to antecedent laws for the conftrufldon of the general words they ufe : Or, 2. To enable Congrefs in all fuch cafes to pafs all fuch laws, as they might deem necellary and proper to carry the pur-pofes of this Conftitution into full effe£l, either aSfolutely at their diferetion, or at leaft in cafes .where- prior laws were deficient for fuch purpofes, if any fuch deficiency exifted.
The Attorney-General has indeed fuggefted another cort-ftruction, a conftrucliors, I confefs, that I never heard of before, nor can I now confider it grounded on any folid foundation, though it appeared to me to be the bafts of the Attorne.y-GenefalTs argument. His conftruÉHon I take to be this
:-*•
“ That the moment a Supreme Courtis formed, it is to exer-cife all the. judicial'power veiled in it by the Conftitution, by its own authority, whether the Legiflature haG preferibed me» thods of doing fo, or not.” My conception of the Conftitution is entirely different. I conceive, that all the Courts ’ of the , LT-
ttHed States
muft receive,-not merely their
organization
as to the number of Judges of which they are to conftft ; but all their authority, as to the manner of their proceeding, from the Legiflа-ture only. Ihis appears to me to be one of thofe cafes, with many others, in which an article of the Conftitution cannot be effeñuated'without the intervention of the Legiflative authority. There being many fuch, at the end of the fpeciat enumeration of the powers of
Congrefs
in-the Conftitution, is this general-one : “-To make- all laws which íhallbe neceffary and proper for carrying into execution the foregoing Powers, and all other powers veiled by this Conftitution in the Government of the
United States,
or in any department or officer thereof.” None will deny, that an a£f of Legiflation is neceffayto fay, at leaft of what number the Judges are to conftft; the
Prefdent
with the eonfent of the
Senate
could not nominate á number at their
With regard to the Attorney-General’s dodtrine of incidents, that was founded' entirely on the fuppofition of the other I have been considering. The authority contended for ⅛ certainly not one of thofe neceffarily incident-to all Courts merely as Such.
If therefore, this Court is tó be (as I consider it), the o.rgati Of the Co>f tint ion and the law, not of the Golifitutim only, ,in refpedt td the manner of its proceeding, we muft ■ receive our diredtions from the Lеgislature in this particular, ahd have'no right to conftitute ourfelves ah ojfcina brevhm, or take any other fliort method of doing- what the - Conftitution has chofeh (and, in my opinion, with the moft perfedt propriety) Should bé done • ih another mahtter.
But the adt of
Congrefs
has not been altogether filent upon thisfubjedt; The
i¿,th feet,
of the judicial, adt, provides in the following Words :
“
All the before mentioned Courts oi the
United States,
ihall have power to iffue writs of
fire facias, ha-beas corpus,
and all other writs not-Specially' provided for by Statute, which may be neceftary for the exercife of their refpectiye
But this point, I conceive, it is, utmecefiary to determine, becaufe Í believe there is no doubt that neither in the State now. in queftion, nor in any other in the. Union, any .particular Le-giflative mode, authorifing a'compulforyTuit for the recovery of money againft a State, was in being either when the Conftitu-
■ The only principles of law, then, that can be regarded, are thofe common to all the States-. I know of none fuch, ■ which can afieit this cafe, hut thofe -that are derived from what ⅛ properly termed <£ the 'common law,” a Jaw which -I prefume is the ground-work of the laws in every State in the
Union,
and which I confider, fo far as it is applicable to the peculiar cir-cumftances of the country, and where no fpecial a£t of Legifla-fcion cóntrouls it, to be. in force- in' each State,
as it exifledin-England, (unaltered by any Jlatute) at the time of the firjl fettlement of the country.
The ftatutes of
England
that are in force ⅛
America
differ perhaps in all the States ; and, therefore, it is probable the common law in each, is in lome refpects different. But it is certain that in-regard to any commpn law principle which «an influence the queftion before us no. alteration has been made by any flatute, which could occafion the leaft material difference* or-have any partial effect'. No other part of the common law of
England,
it appears to me, oun' have any reference to this fubjedt, but that part of it which prefcribes remedies; again# the crown;. Every State- in the
Union
in every inftance where its fovereignty has not been,delegated to the
United States,
Icorifider to be as coinpleatly foveraign, as the
United States
are' in re-fpedt to th'e powers furrendered. The'
United Stalks
are fove-reign as tó aH the powers.of Governmenbadlually furrendered-: Each State ⅛- the
Union
is fovereign as to all.the powers referv-eck.. It muff neceffarily.be. fb, becaufe
th¿ ‘United 'Statos
have no claim to any authority but- fuch
as the States have furrendered to
themOf courfe the part not furrenderred mull , remain as.it did before. The powers, of the general Government, either of a Legiflative- .or Executive nature, or- which particularly concerns Treaties with Foreign Powers, do for ■ the moil part (if not-wholly) affecb individuals, and not States-: They require no aid from any State, authority.. This is the gireat leading diiiindlion .between the old articles, of confederatiоn, and the prefentconftitution, The Judicial power is of a peculiar kind.' It is indeed- commenfurate with the ordinary- Legiflative and Executive powers of the general-government,' and the Power which concerns treaties.. But it alfo goes further. Where certain parties are concerned, although the fubjedb ⅛-epntroverfy - does not relate‘to any of ■ the fpecial objedts'of authority of the general Government,, wherein the feparate- foyeveigstie» of the States are blended-in one eommon-mafs of fupre.macy, yet the general Government has a J adicial Authority-⅛-regará to fuel»
Whatever be the true conilrutSlion of the Conilitution in this particular ; whether it is to be' conftrued as intending merely a transfer of jurifdidtion from one tribunal to another; or as authorifing the Legiilature to pro.vide laws for the decifion of all poffible controverfies in which a State may be.involved with an individual, without regard to any prior exemption; yet it is certain that the Legiilature has in fn£l proceeded upon the former fuppoiition, and not upon the latter. Tor, befide.s what l no-, ticed before as to an exprefs reference to principles and ufages. of law as the guide of our proceeding, it is obfervable that iu initances like this before the Court, this Court hath a concur-r
rent jurifdiclion
only ; the prefent being one of thofe cafes where by-the judicial ⅜£1 this Court hath
original
but not
exclttfive
ju-. rifdidlioni This Coyrt, therefore, under that a£t, can cxercife no authority in fuch initance§, but fuch authority' as from the fubj.ect matter of it .may be exercifed in fome other Court. There are no Courts with which fuch a concurrence can be fug-gefled but the Circuit Courts,. or Courts of tiie different States. Wjth the former it cannot be, for admitting that the Conilitution is'not to have a rеftrifitive operation, fo as to confine all cafes in which a State is a party exelufively to the Supreme Court (an opinion to which I am ftrongly inclined), yee there are no. words in the definition of the powers of the Circuit Court which give ⅞ colour to an opinion, that where a fuit is brought againft a State by a citizen of another - State,.the Circuit Court could exercife any j.urifdiclion at all, If they could, however, fuch a jurifdiclion, by the very terms of their authority, could be only concurrent' with the Courts of the feveral States. It follows, ■ therefore, unqueflionably, I'think, that looking at the del óf
Congrefs,
which I confider is on this occafion the limit t>f our authority (whatever further might be conftitutionaly, ⅜⅛⅞⅜⅛) yve ⅜⅞⅜ exercife- no authority in the prefent inftanc e
If -therefore, no new remedy be provided (as -plainly is the ' cafe), and confequently we have no other rule to govern us but the principles of rhe pre-exiftent laws, which muft remain in-force till fuperceded by others, then it is • incumbent upon us to enquire, whether previous to the ■ adoption of the Conftitution (which period-, or the period of palling the. law, in refpeft totheobjeft of this enquiry, is perfeftly equal) an-aftion o£ the nature like this before the Court could have been maintained againft one of the States in the
Union
upon the principles of the common law, which I have ihewn to bé alone applicable. If ft could, 'I think it is now maintainable here : If it could not, I think, as the law ftandskit prefent, it is not maintainable 5 whatever opinion may be-entertained,- upon the conftruftlon of the Conftitution,-as to the power of
Congrefs
to authorifé fuch a one. Now I préfume it will not be denied, that in every State in ■ the
Union,
previous to the adoption of the Conftitution, the only common law principles in regard to fuits that were in any. manner admiflible in refpeft to claims againft the State, were; thofe which, in
England
apply to claims againft the crown; there being certainly no' other principles - of the common law which, previous to the adoption of this Conftitution. could, in any manner, or upon any colour, apply to the cafe of a claim agaiiift á.State in its own Courts, where it wa6 folely and completely fo-vereign in-refpeft to fuch cafes at leaft.. Whether that remedy was ftriftly applicable or not, ftill I apprehend there was no othe.r. The only remedy in a cafe like that before the Court, by "which, by any poffiblity, .a fuit can be maintained againft' the crown in-
England,
Or could be at any .period from which the common law, as in force
in America,
could be derived, I believe ⅛ that which is called
a Petition of
right, It is ftated, indeed, in
Com. Dig.'
105. That
“
until the' time.of
Edward
I.the
King
might have been, fued in-all aftions as a common perfon.” And fome authorities are cited for that pofirion, though it is even there ftated as>a doubt. But the fame authority1 adds-r^« hut now none can have an aftion again ft the
King,
but one ihall be put to fue to him by petition.” This appears to-be a quotation or .abftraft from
Tkeloali’s
Digeft, which is alfo one of the authorities quoted in the former cafe. And this book appears (from the law catalogue) to have been printed fo long ago as the year 15.79. The fame doftrine appears (according to a quotation
in Blaclf one’s Commentaries, t VoL
243) to be. ftated ⅛
pinch’s Law
253, the firft edition of winch, it feems, was publiihed in 1579. -This alfo more fully appears in the cafe of the Bankers} and particularly from the celebrated argument of
The fubftance of' the cafe was as follows
-.—King Charier II.
having received large furas of money from bankers, on the credit of the growing produce of the revenue, for the payment-of .which, tallies and orders of. the Exchequer were given,(after-, wards made transferable by ftatute) and the payment of thefe having been afterward poftporied, the
King
at length, in order to relieve the Bankers, in 1677, granted annuities to them out-of the hereditary Excife, equal .to
6
per cent intereft on their fe-veral debts, but redeemable on payment of the principal. This intereft was paid ’till. .1683, but it then became in arrear’, and' continued fo at the Revolution; and the- fuits which were com-, menced to enforce the payment of thefe arrears, were the fub-je£k of this cafe. The Bankers prefented a petition to the'Ba-^ rons ©f the Exchequer,. for the payment-, of the arrears of the-annuities granted ⅜ to which petition- the Attorney General demurred. Two points were made: F-irft, whether the gfSnt out ©f the Excife- was good'; fecorid, whether a petition to the Barons of the Exchequer was a proper remedy. On'the firft point-the whole Court agreed-, that in general the
King
could-alienate-the revenues ef the crown ; but Mr. Baron
Lechmere. differed
from the other Barons, by thinking that this particular, revenue-of the- Excife, was an exception to the general - rule.. Brit all agreed, that the petition was a proper remedy. Judgment was therefore given for the petition by directing payment to the complainants at the receipt of the Exchequer. A writ of Error was brought on this Judgment by the Attorney Cíen eral in the Exchequer-Chamber. There all-,the judges who argued held the grant ‘out of the Excife good. A majority of them, including Lord Chief Juftiee
Holt,
alfo approved of the remedy by petition to the Barons. But, Lord Chief Juft-ice
Treby
was of opinion, ¡that the Barons
qi
the -' Exchequer, were not au&orifed to make order- for payments on- the receipt of the Exchequer,, and, therefore, that the remedy by petition to the Barons was inapplicable. In rhis bpinion Lord
Somers
concurred. A doubt-then arofe, whether the Lord Chancellor and -Lprd High Trea-» forer were, at liberty to gi$e judgment -according- to their ew»
Upon perufing the whole of this cafe, thefe inferences naturally follow :— 1ft. That admitting the authority of that de-cifion in its fulleft extent* yet it is an authority only in refp'ecf to fuch cafes, where letters patent from the crown have been granted for the payment of certain fums out of a particular revenue. 2d. That fuch relief was grantable in the 'Exchequer, •upon no othér principle than that that Court hud a right to-direct the iifues of the Exchequer as well after the money was depofited there as while (in the- Exchequer language) it was in iranfitu. 3d. That fuch an authority could not have beenexer-. ifed by any other Court in WeJlminJler-'Hall, or. by any Court that from its particular conftitution had nó conrroul pter the revenues of the Kingdom, Lord C. J. Holt, arid . Lord Somers ;(though they differed in the main point) both agreed in that cafe, that the Court of King’s bench could not Tend a .writ to the Treafury. Hargrave’s -cafe, 45, 89, Coufequently, no fuch remedy, could, finder .ány’circumftances, I apprehgyd, be aflowed in any of- the American States; in' none of which it.is preflimed any Court of Juftice hath any exprefs, authority over thc revenues of the State fuch as has been attributed to the Court of Exchequer in England.
The obfervations of Lord Somers, concerning the general rc- ' medy by petition to'the
King,
-have been extracted and deferred to by fome of the ableft law characters. fine?; particularly by
After citing many authorities, Lord
.Somers
proceeds thus te By all thefe authorities, and,' by many others, which I could 'cite', both ancient and modern, it is plain, that if the fubjedi tvas to recover a rent, or annuity, or other charge from the crown ; whether it was a rent or annuity, originally granted by the
King
; or iffuing out of. lands, which by fubfequent title came to be in the
King’s
hands '1, in all cafes the remedy to come at it was by -petition to the p.erfon of the
King
: and no other method can be ihewn to have been pra&ifed at common law. Indeed I take it to be generally true, that in all cafes where the fubjecl is in the nature of a
Plaintiff,
to recover any thing from the
King,
his 'only remedy, át common law, is' to fue by
Petition
to the' perfon of the King*. I fay, where the fubjedt comes as a
Plaintiff.
For, as I faid before, when, upon a title .found for the
King
by
office,
the fubjedt comes in to'-traverfe the
King’s
title; or to ihew hrs own right, he comes in the na-1 ture of a Defendant ⅝ and is admitted to interplead in the cafe •with the
King
in defence of his title, which otherwife would be defeated by finding the
office.
And to fhewdhat this was fo, I would take notice of feveral inftane'es. That, in cafes of debts owjng by-the crown, the. fubjedt’s remedy1 was by
Petition,
appears by
Aynejhanis
cafe;
Ryley,.
251. which, is a petition for ¿19. due for work done at
Carnarvon
caftle.
So Ryley
251. The executors of
John Efirateling
petition for
£
132. due to the . teftator fop wages. ' The arifwer is remarkable ; for there fe a' latitude taken, which will very well agree with the notion that fe taken up in this cafe;
Habeant bre. de liberate in Cane. thef. itf earnerar. definí. in partem folutionis.
So the --cafe of
Ter--tvürd'de G-aUys-y
for
fifi- Ryley
4x4. -In like manner in the fame book 253., 33. ^
Ed. I.
feveral parties fue by
petition
for ' money and goods taker fpr the
King’s
ufe; and alfo for wages due to- them ; and for aebts owing to them by the
King.
The anfwer is,
Rex erd'mavit per concilium thefaurarii iff baronum de feas cario, quod fatisfiet iis quam citius fieri poterit ¡, ita quod cónter.» tos fétenebunt.
And this is an anfwer - given to a petition - pre-fen ted to .the
King
in Parliament;' and therefore we havereafon to- conclude it to be warranted by law. ■ They muft be content, apd they ihall be
paid,'quam\ citius-fieri potefit.
1 The’ parties, ■⅛ thefe; cafes, firlt go to the
King'■
by petition-: it is by him ⅛eyj- áre fent to the ' Exchequer ⅛. and it'is by writ under the: great feql, that, the
Exchequer
is knpotVered to adt. Nor cart
The folitary cafe, noticed at the concluí]on of Lord
Somers’s
arguments
“
that a petitiQn will not lie of a-'chattel,” certainly ' '
I leave out of the argument, from which I have made fo long a quotation, every thingconcerning the reftridtion on the Exchequer, fo far as it concerned the cafe then before the Court, as Lord Somers (although more perhaps by weight of authority than reafoning) was over-ruled in tha,t particular. As fo all others' I confider the authorities on which he relied, and his de-■dudlion from them, to be unimpeached.
Blachflone, in the firft volume , of his commentaries (p. 203), fpeaking of demands in point of property, upon the King, ftates the general' remedy thus :—If any pérfon has,'in point .of property, a'juft demand upon the King, he muff petition him in his'Court of Chancery, where his Chancellor will adminif-ter right, asa matter of grace, though not-upon^compulfion. (For which he cites Finch L. 255.). “ And this is exadtly con-donan t to what is laid down by the writers on. natural law— A fubjedt, fay PuffendorJ, .1|> long «a he continues a fubjedt, hath no way to oblige his Prince to give him his due when he refufes, it 5 though no wife Prince will ever refufe to Hand to a lawful contradi. And if the Prince gives the fubjedt kiave to- enter an adtion againft him upon fuch contradi, in his own Courts, the adtion. itfelf proceeds rather upon natural equity, than upon the)municipal laws. For the end of fuch adtion is not to compel the Prince to obferve die contradi, but to purjuade him.”
It appears, that when á petition to the perfpp of the
King
is properly prefented, the ufüal way is for the
King
to indorfe or underwrite,
foit droit fait’ al partie,
(let right .be.done to the party); upon which, unlefs the Attorney-General confeffes the-luggeffion,a commiffion is iffued to enquire into the truth of it t after the .return of which, the
King’s
attorney is at liberty to
In a very ⅛⅛'cafe in
England,
this point was incidentally difeuffed. The cafe I refer to, is the cafe of
Macbeath
againft
Haldimatt4,
reported-
if - Dun ford
⅛*1
Eajl
172.'- The afftion Vas againft the'Defendant, for goods ftímiíhed by the Defendant’s order in
Canada.,
whé» the Defendant was Governor of'
Quebec.
The defence Was, that the Plaintiff was employed by the Defendant in his official capacity, and not úp on, his perfonal. credit, and that $he goods being therefore furnifnedfor-the ufe of. Governm.enf;, arid the Defendant not having undertaken personally to 'pay; he was not lfeble,. This defence, Was fet up at the trial, on the-plea of the general iffaé, and the Jury, by Ju,dgfe
Buller’s
direction, found a verdwft for the Defendant. Ugon a motion fei anew trial he reported particulаrly all the faifts’given.iri evidence, and faidhis opinion had been at.the trial that the Plaintiff fhould be nbmfuited
i
‘i but the Plaintiff’s counfel appearing-for their client-, when 'he was, called, he left the queftibri. to the'jury, telling them that they were bound to find for the- Defendant in point of law,. And upon t-heir a iking him .whether, in the event of the Defendant not being liable, any other perfon was, he told them,- that was no part of their con finer at ion, But being willing to give them any information, he added, that be-was of opinion, that if the Plaintiff’s demands were- juft, his proper remedy Was by a Petition iff right to the crpwn. On which' they found a verdidl for the Defendant,, The rule for-granting- a new trial was moved "for, on the mifdire&ion of - two. points. 1 ft. That the Defendant had by his own condufit made himfelf liable, which queftion fhould have been left to the jury. 2dly. That the Plaintiff had no remedy againft th'é crown by a .Petition of right, on the fuppbfition of which the Jury had been induced to give their verdift.”- “ Lord
Mansfield,
Chief Juftice, now declared', that the Court did not feel it neceffary for them to give any opinion on the fecond ground. His Lordihip faid that great difference had arifen fince the revolution with re-fpe£l tp the expenditure of the public money-.' Before that period, aft the public fupplieS were' given to. the
King,
-who in
In the old authorities, there doe's not appear any diftindlion, between debts that might be contradled perfonally by the- King, for his own private ufe, and fuch as he contradled in his political capacity for the fervice of the kingdom. As he had however then fixed and independеnt revenue's, upon which depended the ordinary fupport of Government, as well as the expenditure for his own private occafions, probably no material diftindlion at that time exifted, or could eafily be made. A very - important-diftindlion may however perhaps now fubfift between the'two cafes, for the teafons intimated by Lord Mansfield ; fince the whole fupport of Government depends now on Parliamentary provifions, and, except in the cafe of the civil lift, thofe for the raoft part annual. •
Thus, it appears, that in England even in cafe of a private debt contradled by the King, in his own perfon, there is no remedy but by - petition, .which muft receive his exprefs fandtion, other-wife there can be no proceeding upon it. If die debt contradl-ed be avowedly for the pubüc ufes of Government, it is at lead doubtful whether that remedy will lie, and if it will, it remains afterwards in the power of.Parliament to provide for it or not among the current fupplies of the year.
Now let us-confider the cafe of a debt due from a State; None can, I apprehend, bfe diredlly,claimed but in the following inftances. lit. In cafe of a Contradi with- the Legifiature it-' felf. 2d. In. cafe of a contradi with the Executive, or any other perfon, in confequencepf an exprefs authority from the Legif-laturej 3d. In cafe of a contradi with the Executive without any fpecnll authority. In
thefiifi. andfecond
cafes, the contradi is evidently made on the public, faith alone. Every man muft 4now that noTuit dan .lie againft a Ldgiflative body. His,only
There • is no other part of- the common law, befidts that which I have eonfktered, which cnnby.any.perfon be pretended, in any manner to apply to this cafe, but that which concerns, corporations. ’.The applicability of this, the Attorney-General, with great candour, has cxprefsly waved. Rutas it may be
The differences between fuch corporations, and the fevera! States in the'
-Union,
as relative to the general Government, ate Very obvious' in the following particulars, ift. A corporation is a mere creature of the
King,
or of .Parliament 5 very rarely of the latter; moft ufually of the former only-. It owes its exiftence, its name, and its laws, (except fuch laws as
are
neceffarily incident to all corporations merely as fuch) to the Authority which create'it» A State does-not owe its origin to the Govtrnment of the'
United
States, in the higheft or in any of its branches. It was in exiftence before it. It derives its authority from the fame pure and' facred fource as itfelf:
The voluntary and deliberate choice of the people, 2d,
A corporation can do no a£t but what is fubjeft to the revifion either of a Court of Juftice, or of fome other authority within the Government. A State is, altogether exempt from the jurifdidHon of the Courts of the
United States,
or from any other exterior authority, unlefs in the fpecial inftances where the general Government has power derived from the Conftitution itfelf.-
3d.
A corporation i;s -altogether dependant on that Government tó which it owes its exiftence. Its charter may be forfeited by ábufe. Its: authority may be annihilated, without abufe, by an act of the Legiflátíye body. A State, though fubjeft in certain fpecifted particulars to the authority of the Government of the
United States,
is in every other rfefpedt totally independent upon it. The people of the State ' Created, the people of the State can only change, its Conftitution» ■ Upon this power there is no other limitation but that impofed by the Conftitution ol the
United States ; tkat 'it mtijl be of the Republican
form. I omit minuter diftindtions. Thefe are fo palpable, that I never can admit that a fyftem of law calculated for one of thefe cafes is to be appllied,
as a matter of courfi,-
to the other, without admitting (as I conceive) that the diftindft boundaries of law and Legiflation1 may be confounded, in a manner that would' make Courts arbitrary, ‘And in effedi
makers of a new law,
inftead of being (as certainly they alone ought to be)
expoftors of an ex~ ifinjr bne..
If ftil! it ihould be infifted, that though a States Cannot be confidered upon the fame footing as the municipal corporations I have been confidering, yet, as relative to the; powers of the General Government it muft be deemed in fome .meafure dependent;admitting that to be the cafe (which to be fure is, fo' far as the neceflary execution of the powers of th© General Government extends ) yet in whatever character this may place a State, this can only afford areafan for a new law,
I have now, I think, eftablilhed the following; particulars.~⅜> ift. That the Conftitution, fo far as it refpeéfs the.-judicial an* thority, can only he carried into eíFeét by ait's of the Regiflature. appointing Courts, and prefqribing their :tnethods of proceed--ing. 2d. That Congref, has provided no new.lew in tegarci ta this cafe, hut exprefaly referred as to -the old.. 3 2, That there aré no principles of ..the old law, to which we mu ft have irecourfe, that in any Planner aitthorife the- .prefent lhiV either by precedent or by analogy. The confequenee of .which, in my «pinion," clearly is, that the fuit in queftion cannot- be main* tained, nor, of courfe, the motion "made upon it be complied with.
From.- the manner in which I have viewed -tbisdubjeft,. fo different from that in which it has been contemplated by the Attorney General, it is evident, that,I have- not had, occafion-to notice many arguments offered by the, Attorney General, which certainly were very proper, as to' his extended view of the cafe, but do not affecft mine. No part of -- the Raw of Nations can apply to this cafe, as.,1 apprehend, .but- that part which is. termed “ The Conventional Law :of Nations ⅜” nor can this-any otherwife apply than as funaiihing rules of - interpreta* tion,- fincc unqueftionably the people of the
United States
had a right to form what kind of union, and upon what terms they pleafed, without reference to any former examples. If upon a fair conftru£tion of the Conftitution of the
United
States, the power contended for really exifts, it undoubtedly may bé ex* ercifed, though it be a power of the firft impreffion. If ⅛' does not exift, upon that authority, ten thoufand examples of fimilar powers would not warrant ies affhwptign. So far as this great queftion affedls the Conftitution itfelf, if the .prefent afforded, confiftently with the particular grounds of my ¿pinion, a .proper occafion for a decifion upon it, I would ■ not ihrink from its difeuffion. But it is of extreme moment that no Judge ftiould raihly commit himfélf upon important queftions, which it is unneceffary for him to decide. • ‘My opinion being, that even if the Conftitution would admit of ..the exercife of fuch a power, a new law is neceifary for the purpofe, fince no part of the exifting law applies, this alone is fufficient to juf* tify my determination in the prefent cafe. So much, however, has been faid on, the Conftitution, that it may not be improper to intimate that my prefent opinion is.ftrongly againfi any con-ftru&ion of it, which will admit, under any circumftances. * compulfive fait againfi a State for the recovery of 'money. R
Blair,
Jujlice.
In confidering this important cafe, I have thought it belt to pafs over all the ftriftures which have been made on the various European confederations ; becaufe, as, on the one hand, their likenefs to our-own is not fufficiently clofs to juftify any analogical application ; fo, on the' other, they are' utterly deftitute of any binding authority here. The Confti-tution of t(ie
United States
is the only fountain from which.I lhall draw; the only authority to which I fhall appeal. Whatever be the true language of that, it is obligatory upon every member of the
Union ;
for, no State could have become a member, but by an adoption of it by the people of that State. .What then do-we find there. requiring the fubmiffion of individual States to the judicial authority* of the
United States ?
This is éxpréfsly extended, among other things, to controverfies between a State and citizens of another State. Is then the cafe before us one of that defcription ? Undoubtedly it is, unlefs it may be a fufficient denial to fay, that it is a ■ cóntroverfy between a citizen of one State and another State. Can this change of order be an effential change in the thing intended ? And is this' alone a fufficient ground from which to conclude, that the jurifdiSion of this Court reaches, the cafe where a State. is Plaintiff’, but not where it is Defendant
?
In this latter cafe, ihould any man be afked, "whether it -was not a cpn-troverfy- between a State and citizen of another State, muft not anfwer be in the affirmative ? A difpute between A. and B. •sturdy a difpute between B. and A. Both cafes, I havens doubt,, were intended ; and probably the State was firil named,
With refpetl to-the fervicé of .the femmons to appear, the manner in which it has been ferved feems to be as proper as any which could be devifed for the purpofe of giving notice of the fuit, which is the end propofed by it, the Governor being the head of the Executive Department, and the Attorney General the law-officer, who generally reprefents the State in legal proceedings : And this mode is the lefs liable to exception, when it is confidered, that- in the fuit brought in this Court by the State of
Georgia
againft Brailsford
*
and others, it is conceived in the name of the Governor in behalf of the State. If the opinion which-I have delivered, refpe&ing the liability of aStatetobe feed in -this Court, feould be the opinion of the Court, - it will come in courfe to confider, what is the proper, ftep to be taken for inducing appearance, none having, been yét entered in behalf ■of the Defendant. A judgment' by default, in the prefent ftage of the bufinefs,- and writ of enquiry of damages, would
This is a cafe of uncommon magnitude. £>ne of the parties to it is a State; certainly refpe&able, claiming to be fovereign. The queftion to be determined is, whether this State, fo refpe¿table, and whofe claim foars fo high* is amenable to the jurifdi&ion of the Supreme Court of thé United States ? This ■ queftion, important in itfelf, will depend on others, more important ftill; and. may, perhaps, be ultimately refolved into one, no left radical than this—“ do the people of the United States form a Nation
A caufe fo confpicuous and interefting, Ihould be carefully and accurately viewed from every poffible point of fight; I ihall examine it; ijl. By the principles of general jurifprudence. id. By the laws and praéHce of particular States and kingdoms. From- the law of nations little or no illuftration of this fabje£t cap be expected. Bythatlawthe feveral States and Governments fpread over' our globe, are confidered as forming a fociety, not u nation. It has only been by a very few comprehenfive minds, fuch as thofe of Elizabeth and the Fourth Henry, that this laft great idea has been even contemplated. 3dly. and chiefly, I fhall examine the important queition before us, by the Conftituion of the United States, and the legitimate refult of that valuable inftrument.
I. I am, firft, to examine this queftion by the principles of. general jurifprudence. What Í ihall fay upon this head, I introduce by the obiervation of an original and profound writer, who, in the philofophy of
wind,
and all the fcienCes attendant on this
prime
one, has formed an sera not lefs remarkable, and far more illuftrious, than that formed by tha juftly celebrated
Bacon,
in another fcience, not profecuted with lefs ability, but lefs dignified as to its. object ; I mean the philofophy of
matter.
Dr.
Reid,
in his excellent enquiry into the human mind, on the principles of
common
fenfe, fpeaking of the fceptical and il
. To the Conftitution of .the UnitedJstates: the'term sovereign* is totally unknown. . There is but one place where it could have been uled with propriety. ' But, evén in- that place it would not, -perhaps, have comported with the delicacy of -thpfe, who ordained and ejiablijfjed that Conftitution. -They might have announced themfelves' “ sovereign” , people.-of the United Staes: But fereuely confcioiis-of the fact, they1 avoided the ojlentatious declaration.,
Having thus avowed my difapprobatioii of the purpofes, for which' the terms,
State and fovereign,
axe frequently uied,. and of the objebt, to which the. applicat- a of the laft pf them is almoft. uni'veifally lftade.j it is now proper that I ihpuld difclofe "the'meafling, which I, affign' tá both, ,and jbe application,
Man,-fearfully and wonderfully made, is the workmanlhip of his all perfect CreAtoR : A State; ufeful and valuable as the. contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance.. When I fpeak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to. that, which is divine - Of all human contrivances, it is certainly molt tranlcendantly excellent. It is concerning this conti ivance that Cicero fays fó fublimely, “ Nothing, which is exhibited upon our globe, is more acceptable to that divinity, which governs the whole uni., verfe, than thofe communities and .affemblages of men, which, lawfully alfociated, are denominated States * ”.
Let a
State
be confidered as fubordinate to the .peoplе : But let every thing elfe be fubordinate to the
State.
The
latter
part of this pofition is equally neceflary with the former, • For in the practice, and even at length, in the fcience of politics there has very frequently been a ftrong current againft, the natural order of things, and an inconfiderate or an intereiled difpofition to lacrifice the
end
to the
means.
As the ■
State
has claimed precedence .of the people ; fo, in the fame' inverted courfe of things. thp’
Government
has often claimed precedence of the State; and to this perverlion in the
fecond
degree, many of the volumes of confufion concerning fovereignty. owe their exiftence. The.
minflers,
dignified very properly by the appellation of the
magfirates,
have wifhed, and have fucceeded in their wilh, to be confidered as the
fovereigns
of- the State. This
fecond
degree of perverlion is confined to the old world, and begins to diminilh feven there ; but the
firfl
degree; 3s ftill too prevalent, even in the feveral States, of which our union is eompofed. By a State I mean, a complete body of free perfons united together foi their common benefit, to enjoy peaceably what is their own, and to do juilice to. others. It is an
artificial
perfoh. It has its affairs and its interefls : It has its rules : T): has "its rights: And it has its obligations. It may acquire property diftinct from that.of its members*. It may incur debts to be difeharged out of the public flock,. not out of the private fortunes-of individuals. It maybe botíhd by contrails ; and for'damages arifing from the breach of thofe contrails. .In all our contemplations, however, concerning this
Is the foregoing defcription of'a State a true defcription
i
It will not be queftioned but it is.. Is there any part of .this def-cription, which’intimatcs, in the remoteit manner, that a State, any mo.ré than the men who compofe it, ought not to do juftic© and fulfil engagements ? It will not be pretended that there is. If juftice is not done ; if engagements are not fulfilled,j is it upon general principles of right, lefs proper, in the cafe of a great number, than in the cafe of an individual, to fecure, by compulfion, that, which will not be voluntarily performed ? Lefs proper it furely carinotbe. The only reafon, I believe, why a free man is bound byhuman, laws, is,
that he binds himfelf.
Upon th© fame principles, upon which he becomes bound
by the laws,
he be- ’ comes amenable to the
Courts of Juftice,
which are formed and authorifed by thofe laws. If one free man, an original Sovereign, may do all this ; why may not an aggregate of free men, a collection of original fovereigns, do this like wife ? If the dignity of each
Jingly
is undiminiihed
•,
the dignity of all
jointly
muft be unimpaired. A State, like a merchant, makes a contract : A diftioneft State, ⅝ like a diihoneft merchant, wilfully refufes to difcharge it : The latter is amenable to a Court of Juftice : Upon general principles Of right, lhall the former when fummon-eA to anfwcr.the fair demands of its creditor, be permitted, proteus-like, to aflume a new appearance, and to infult him and juftice, by declaring
I am a
sovereign
State ?
Surely not. Before a claim, fo contrary^ in its firft appearance, to the general principles of right and equality, be fuftained by a juft and impartial tribunal, the perfon, natural or artificial, entitled to make fuch claim,, fhould certainly be well known and authenticated. Who,or what, isa Sovereignty ? What is his or its fo-vereignty ? On this fubjedt, the errors and the mazes are end-■lefs arid inexplicable.' To enumerate all, therefore, will not be expedled: To take, notice of fome will be neceflary to the frill illufiration of the prefent important caufe- In one fenfe, the
termfovereign
has for - its correlative,
fubjeB,
In this fenfe, the term can receive no application j for it has 'no object in the Conftitution of the
United States.
Under' that. Conftiturion 'there are
citizens,
but
no fubjeBs. <(
Citizen of the
United States
*
”. “
Citizens of another State.”
“
Citizens of different States.” .
“ Á
State or citizen thereof-}-”. The term, fubjerit, occurs, indeed, orice in the inftrument; but to mark-the contrail ftrongly, the epithet. “ foreign”!. is prefixed. In
this
fenfe, I prefume the State of
Georgia
has no claim upon
In another fenfe,'according to-fome writers*-, every State,. which governs itfelf without any dependence on another powder, is a foveteign State.. Whether, with regard 'to her own citizens, this is the cafe of the State of Georgia ¡ whether thofe citizens have doné, as the individuals of England are laid, by. their late inftruétors, to have done, furrendered the Supreme Power to the State or Government, and referved nothing to themfelves ; or whether, like the people of other States, and of the United States, the citizens of Georgia have referved the Supreme Power in their own - hands j and on that Supremé Power have made the State dependent, initead of .being foVe-reign ; thefe are queftions, to which, as a Judge in this caufe, I can neither know nor fuggeft the proper ajifwers ; though, aS ■a citizen of the Union, I know, and-am interefted to know, that the molt fatisfa&ory anfwers ' can be given. As a citizen," I know the Government of that State to be republican $ and my ihort definition of fuch a Government is,—one conftru&ed on this principle, that the Supreme Power refides in the-body of the people. As, a Judge of this Court, I know, and caa decide upon the knowledge, that tht citizens of Georgia, when , they adted upon the large fcale of the Union, as a part of -the « People of ihe.United States ” did not furrender the Supreme or fovereigh PoWr to that State •, but, .as to the purpofes of the Union, retained it to themfelves. As to the purpofes of the Union* therefore, Georgia is not a fmereign State. If the Judicial-decifion of this cafe forms one of thofe purpofes 5 Ac allegation, that Georgia is a fovereign State, is unfupported by the fa£h Whether the judicial decifion of this caufe is, or is n.ctt, one .of thofe purpofes, is a queftion which will be examined particularly in a fubfequent part of my argument* -
There is a third fenfe, in which the term fovereign is fre-1 quently.ufed, and which it is very material to trace and explain, as itfurnilhes a bails for what I prefume to be one of the -pricipal objedtions againftthe' jurifdiétion of this Court over thd State of Georgia. In this fenfe, fovéreignty is derived from -
*
feudal íburce ; arid like many other parts of that fyftem fo degrading to man, ftill retains its influence over our fentiments and conduct, though the caufe, by. which that influence Was produced, never extended to the
American
States* The accurate and well informed Prefident Henault⅜ in his excellent chronological abridgment of the Hiftory of
France,
tells us, that, about the end of the fecond race of
Kings,
a new kind of pof-ieffion was acquired, under the name of'
Fief.
The Governor^ t»f' Cities and Provinces ufurped equally the propeity of land,
I have now fixed, in the fcale of things, the grade of a State; and have defcribecl its cpmpofure : I have confidered the nature of fovereignty ; and pointed its application to the proper objeft. I have examined the queftion ■ before us, by the principles of general jurifprudence^ In thofe principles I find nothing, which terids to evince án exemption of the State of Georgia, from the jurifSi£tion of the Court. I find every thing to have a contrary .tendency,
When the laws and praftiee of particular States have any application to the queftion before us ; that application willfuruiih what is called an argument a fortiori ; becaufe all the inftances produced will be inftances of fubjeBs inftituting and fupporti'ng fuits againft thofe, who were- deemed their own /oversigns. Thefe inftances áre ftronger than the prefent one -, becaufe between the prefent plaintiff and defendant no fuch unequal relation is alledged to exift.
Columbus atchieved the difeovery of that country, which, perhaps, ought to bear his name. Acontraft made by Columbus furniihed the firft precedent for fupporting, in his difeóvered country, the caufe of injured merit againft the claims and pre-tentions of haughty and ungrateful power. His fon Don Diego, wafted two years in ineeffant, but fruitlefs, folicitation at the Court of Spain, for the rights which defeended to him in confe-quence of his father’s original capitulation. H.e endeavoured, at length, to obtain, by a legal fentence, what he could not procure from the favour of an' interefted Monarch. He commenced a fuit againft Ferdinand before the Council, which managed Indian affairs „• and that Court, with integrity which reflects honour on their proceedings, decided againft the King, and fe/lained Don Diego’s claim.*
Other States have inftituted officers to judge the proceedings-of their Kings : Of this kind were the Ephori of Spartaof this kind alfo was the mayor of the Palace, and afterwards the confiable of France. †
But of all the laws and inftitutions relating to the prefent queftion, none is fo ftriking as that deferibed by the famous Hot-toman, in his book entitled Francogallia. When the Spaniards of Arragon eleft a King, they reprefent a kind of play, and introduce a perfonage, whom they dignify by the name of law, la fufliza, of Arragon. This perfonage they declare, by a public decree, to be greater and more powerful than their Kings and then addrefs him in the following remarkable ■ expreffions.
** We, who arc of as great worth as you, and can do. more
In England, according to Sir William Blackjlone-, no fuit cart be brought againit the King, even in civil matters. So, -in that Kingdom, is the law, at this time, received But it was not always fo. Under the Saxon Government, a very different doctrine was. held to be orthodox. Under that Government, as we are informed by the Mirror of Juftice, a boofc faid, by Sir Edward Coke, to have been written, in part, at leaft, before the conqueft ; under that Government it was ordained, that the King's Court ihouid be open to all Plaintiffsj by which, without delay, they ihouid have remedial writs, as well againit the King or againit the phtsen, as againit any other of the people. † The law-continued to be the fame for fome centuries after the conqueft.
Until the time of Edward I. the King might have been fued as a common person. The form of the process was even imperative. "Pr æcipe Henrico Regi Angliæ &c. "Command Henry King of England” &c. ‡ Bracton, who wrote in the time of Henry III. uses these very remarkable expreffions concerning the King “in justitia recipienda, minimo de regno fuo com paretur”—“in receiving justice, he should be placed on a level with the meanest person in the Kingdom § .” True it is, that now in England the King must be sued in his Courts by Petition, but even now, the difference is only in the form, not in, the thing. The judgments or decrees of those Courts will sub-stantially be the same upon a precatory as upon a mandatory process. In the Courts of Justice, says, the very able author of the confiderations on the laws of forfeiture, the King enjoys many privileges; yet not to defer the subject from contending with him freely || . The judge of the High Court of Admiralty in England made, in a very late cause, the following manly and independent declaration. “ In any cafe, where the Crown is a party, it is to be obferved, that the Crown can no more withhold evidence of documents in its poffeffion, than a private perfon. If the Court thinks proper to order the production of any public inftrument; that order mujl be obeyed. Itwants.no Snjigma of an - authority derived from the Crown ¶ .”
" Judges ought to know, that the pdoreft peafant is a man as well as the
King
hirrtielf : all men ought to . obtain juftice ; lince in the eilimation of juftice, all men are
equal ;
.whether the Prince complain of a-peafant, or a peafant complain of the Prince-”* Thefe are the words of a
King,
of the late
Frederic
of
Bmjfia.
I11 his Courts of Juftice, that great man flood
Thus much concerning the laws and prafitice of other States and Kingdoms.. We fee nothing againft, but much in favour of, the jurifdiñion of this Court over the State of Georgia, a party to this caufe.
■III. I am, thirdly, and chiefly, to examine the important queftion now before us, by the Conftitution of the
United States,
and the legitimate refult of that valuable mftrumer.t. Under this view, the queftion is naturally fubdivided into two others. 1.
Could
the Conftitution of the
United-States
veil a jurifdiftion over the State of
Georgia ?
a.
Has
that Conftitution veiled fuch jurifdhftion in this Court ? I have already remarked, that in
the practice,
and even in the
fcience
of politics, there has been frequently a ftrong current againft the
natural
Order of things ; and an
inconfidcrate
or an
interefied
difpofition -to faerifice the
end
to the
means.
This remark dererves a more particular illuftration. Even in aimoft every nation, v/hich has been denominated
free,
the
fate
has affirmed a fupercilious preeminence above the
people,
who have
formed
it : Hence the haughty notions
offate independence,fate-fovereignty
and
fate fu-premacy.
In
defpotic
Governments, the
Government
has ufurp-ed, in a fimilar'manner, both upon the
fate
and the
people :
Hence all arbitrary doctrines and pretenfions concerning the Supreme, abfolute, and incontrolable, power
oí Government.
In
each, man
is degraded from the
prime
rank, which he ought to hold in human affairs : In the
latter, thefate
as well as the
man
is degraded. Of
both
degradations, (hiking inftances occur in htftory, in politics, and in common life. One of them is drawn from an anecdote, which is recorded concerning
Louis XIV.
who has been (tiled the grand
Monarch
of
France.
This
Prince,
who diffufed around him fo much dazzling fplendour, and fo little vivifying heat, was vitiated by that inverted man-, ner of teaching and of thinking, which forms
Kings
to he tyrants, without knowing or even fyfpedting that they are fo. - • The op-prelfion, under which he held his fubjedls during the whole courfe of his long reign,^proceeded chiefly from the principles and habits' of his erroneous education. Ky thefe, he had been áccuftomed to confider his
Kingdom
as his patrimony, and his power over his fubjje&s as his. rightful and undelegatcd inheritance. Thefe fentiments were fo deeply and ftrongly imprinted pn.his mind, that when one of his Miniflers reprefented to .him-the miférable condition, to which thofe fubje&s were reduced, and, in the cóurfe of his representation, frequently uf-ed the word
UEtat, the fate,
the
King,
though he felt the truth. »nd approved the fubftance of all that was fаid, yet was fliock-$d at; the frequent -repetition of the exprdfian
L’ptat,-
and
No •where ! They are not. fo much as even the <c bafelefs fabric of a vifion !” From legal contemplation they totally difappear ? Am I not warranted in faying, that, if this is a juft defeription j a Government, fo and juftly fo deferibed, is a defpotic Government ? Whether this defeription is or is not a juft one, is 3 queftion of very different import.
. In the
United States,
and in the feveral -States, which coto-pofe the
Union,
we go not fo far : but ftill we go
one Jlep
farther than we ought to. go in this unnatural and inverted order of things. The
Jlat'es,
rather than the people, for whofe fakes the States exift, are frequently the objefts which attract and arreft our principal attention. This, I believe, has produced much of the confufion and' perplexity, which' have appeared . in fcveral proceedings and feveral publications on ftate-politics, and on the politics, too,. of the
United States.
Sentiments and expref-lio-ns.o-f this inaccurate kind prevail in our common, even in our convivial,'language. Is a tóaft afkeu ? « The
United States,”
inftead of the *« People of the
United States,”
is the toaft gir ven. This is not
politically
correft. The toaft Is meant to pre-fent to view
thefihjl
great object in the
Union i
It prefents only
< \ye"Jecdnd s
It pfefents only.the
artificial
perfon, inftead of the.
natural
perfons, who Tpoke it into exilíente. A
State
I cheer⅛
Concerning the prerogative of. Kings, and concerning the fovereignty of States, much has been faid and written ; but little has been faid and written concerning a fubjecl . much more dignified and important, the majefty of the people. The mode', of expreflion, which I would fubftitut'e in the place of that generally ufed, is noionlj politically, but alfo (for between true liberty and true tafte there is a clofealliance) dajficnlly more corrcdl. On the mention of Athens, a thoufand refined and endearing ■affociations rulh at once into the memory of the fchoJar, the fhilofopher, and the patriot. When Homer, one of the moft cot-redl, as well as the oldeift of human authorities, enumerates the -other nations of Greece, whofe forces- acted at the liege of Troy, he arranges them under the names of their different Kings at Princes ; But when he comes to the Athenians, he diftinguiflua them by the peculiar appellation of the people * of Athens: The well known addrels ufed by Demojlhenes, when he bar-rangued and animated his affembled countrymen, was “ O Men of AthensT With the ftridleft propriety, therefore, clafftccd and ■political, our national feene opens with the moft magnificent ob-.. jedt, which the nation could prefent. <« The people of the- United States” are the firft perionages introduced. Who 'were thofe people i They were the citizens of thirteen States, each of which had a feparate Conftitution and Government, and all of which were canne&ed together by articles of confederation. To the purpofes of public ftrength and felicity, that confederacy was totally inadequate. A requifition on the feveral States terminated-its LegiJlative authority : Executive or Judicial authority it had none. In order, therefore, to form a moré perfedt union, to efiabltfh jujtice, to enfure domeftic tranquillity, to providé for common defence, and to fecure the bleffings of liberty, thofe people', among whom were the people of Georgia, ordained and eftablilhed the prefent Conftitution. By that Con-ftitution Legislative power is veiled, Executive power is veiled, Judicial power is veiled.
The.queftionnow opens fairly to our view,
could
the
people
of thofe States, among whom were thofe of
Georgia,
bind thofe
States,
and
Georgia
among the others, by the Legiflative, Executive, and Judicial power fo veiled
l
If the principles, on Chichi have foundedmyfelf, are juft and true 5 this queilion-muft unavoidably receive an affirmative anfwer. If thofe
States
were the
work oí
thofe
people s
thofe people, and,, that I may apply.the café clofely, the’people of
Georgia,
in particular,
The next queftion under this head, is,—Has the Conílitution done fo ? Did thofe people mean to exercife this, their uní doubted power ? Thefe queftions may be refolved, either by fair and conclufive deductions, or by diredt and explicit decía* rations. In order^ ultimately, to difcover, whether the people of the United States intended to bind thofe States b.y the Judicial power veiled by the national Conílitution, a previous en-quiry will naturally be : Did thofz people intend.to bind thofe fates by the Legiflative power veiled by that Conílitution ? The articles of confederation, it is well known, did not operate upon individual citizens ¡ but operated only upon fates, This defeat was remedied by the national Conílitution, which, as all ssHovj, has an operation on individual citizens. But if an opinion, which fome feem to entertain, be juft; the defect remedied, on- one fide, was balanced by a defedt introduced on the other; For they feem to think, that the prefent Conílitution operates only on individual citizens, and not on States. This opinion, hоwever, appears to be altogether unfounded. When certain laws of the States are declared to be {f fubjedl to there-vision and controul of the Congress;” * it cannot, furely, be contended that the Legiflative power of the national Government was meant to have no operation on the feveral States. The fatt, uncontrovertibly eftabliihed in one inflance, proves the principle in all other inftances, to which the fadts will be found to apply. We may then infer, that the people of the United States intended to bind the feveral Sta:es, by the Legiflative power of the national Government.
In order to make the difcovery, at"which we ultimately aim, a
second
previous enquiry will naturally be—Did the people of the
United States
intend to bind the feveral States by the
Executive
power of the national Government? The affirmative answer' to the former queftion diredts, unavoidably, an affirmative anfwer to this. Ever lince the time of
Bratton,
his maxim, I believe, has been deemed a good one-—4*
Supervacuum ejfet leges tondere, nift ejfet qui leges tueretur.”
†
“ It would be fuperfluous' to
make
laws, unlefs thofe laws, when made, were to be enforced.”- When the laws are plain, and the application of them is uncontrovertéd, they are enforced immediately by the
- ’ Whoever confiders, in a combined and compr ehétifive view, the
general texture
of the-Conftitution, will be fatisfied, that the рeople of the
United States
intended to form'themfeíves into a nation for
national purpofes.-
They inftitutéd, for
fuch
pur-po’fes, a national Government, complete in-jall ks parts, with powers Legiflative, Executive and Judiciary; and, in all thofe powers, extending oyer the whole nation. Is it congruous,' that, with regard'do
fuch
purpofes, any man dr body of men, any perfon natural or artificial,' ihould be permitted to claim fuc-cefsfully an entire exemption from the jtírifditlion of the national Government ? Would not fuch claims, crowned with' fuccefs, be repugnant to our very exigence as a nation ? When
But, in my opinion, this do&rine refts not upon the legitimate refult of fair and conclufive deduction from the Conftitution •: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Conftitution itfelf. {i The judicial power of the United States fliall extend, to controverfies between two States.” * Two States are fuppofed ’ to have a controverfy between them : This controverfy is fuppofed tobe brought before thofe veiled with the judicial power of the United States : Can the moft confummate degree of jjrofeffional ingenuity, de-vife a mode by which this “ controverfy between two States” can be brought before a Court of law; and yet neither of thofe States be a Defendant -? “ The judicial power of the United States {hall extend to controverfies, between a fate and citizens of another State.” Could the ftridleft legal language ; could even that language, which is .peculiarly appropriated to an art, deemed, by a great, mailer, to be one of the moft honorable, laudable, and profitable things in our law ; could-'this ftiift and appropriated language, deferibe, with more, precife qcc.uracy, the caufe now depending before the tribunal ?. Caufes, and not parties to caufes, are weighed by juíticé, in her equal feales : On the former jolely, her attention is fixed1: To the latter,- ihe is, as Ihe is painted, blind.
I have now tried this queftionby all the'toucliftones,'to which I propofed to apply it. I -have examined it by the principles of general jurlfprudence^ fty the laws and praftice of States and Kingdoms ; and by the Conftitution of the 'United States. From -all, the combined inference is,- that the action lies.
The grand and principal queftion in this cafe is, whether a State can, by the Feeders! Conftitution,' be fued by-an individual citizen of another State i
The point turns not upon the law or practice of
England,
although perhaps it may be in fome meafure elucidated thereby, nor upon the law of any other country whatever; but upon tlieiConftitution eftablifhed by the people of
tht United States ¡
and particularly apon the extent of powers given to the Fcede-ral Judicial in the 2dfection of the 3d article of the Conftitution. It is declared that “ the Judicial power fliall extend to all cafes in law and equity arifing under the Conftitution, the laws of the
United'Hates;
.entreaties made or which {hall be made under their authority ; to аll cafes a£Fe£ting ambafladors or other public minifters and confuís ; to all cafes .of admiralty and maritime jurifdiftion to controverfies, tq which-the
United
Again —what are w:e to do,with the laft elaufe of. the febtion of judicial powers, viz.
Gontr.overfes between, a fate, or. the citizens thereof, and. foreign fates or citizens ?”
Here again, States muft be fuable or liable to be made Defendants, by this elaufe, which has a fimilar mode of language with the two other claufes I have remarked upon. For if. the judicial power exr tends to a controverfy between one of. the
United States
and a foreign State, as the elaufe expreffes, one of them muft be Defendant. . And thenj what becomes of the fov.ereignty Of States as. far as filing affebts, it ? .- But although the words, appear reciprocally to affeñ the State here and a foreign State,, and put them on the fame footing as far as may be,, yet ingenuity may, fay, that the State here may. fue, but cannot be fued.j but that the foreign State may be fued but cannot fue. We may touch foreign fovereignties hut not our own.. But I conceive the reaT fon of the thing, as well, as the words of the Cpnftitution, tend to ihew that the Feed eral Judicial power, extends to a fuit brought by a foreign State againft any one of the
United States.
One defign of the general. Government was for managing the great affairs of peace and war and the general- defence^ which were impoffible to be condudled, with fаfety, by the Statesyi-
paratdy.
• Incident to thefe powers, and. for preventing contro-v.erfies between, foreign powers, or citizens from rifing to extremities and toan appeal to the fword, a national tribunal was iieceffary, amicably to decide them, and thus ward' off fuch fatal, public calamjty. Thus, States.at home and-their;citizens, and foreign States and their citizens! are put together without-
But {till it' may be infilled, that this will reduce States' to- mere corporations, and take away all fovereignty. As to corporations, all States whatever are corporations ox bodies politic. The only quellion is, what are their powers ? As to individual States and the United States, the Conftitution marks the boundary of powers. Whatever power is dcpofited with the Union by the people for their own neceflary fee urity, is.fo far a curtailing of the power and prerogatives of States. This is, as it were, a felf-evident propofition ; at leaft it cannot be contefted. Thus the power of declaring wár, making peace, railing and fupporting armies for public, defence, levying duties, cxcifes and taxes, if neceflary, with many other powers, are lodged in, Congrefs j and are a moil eflential abridgement of Stare fovereignty,' Again ; the reitriftions upon States ; “ No State ihall enter into any treaty, alliance, or confederation, coin, money, emit hills of credit, make'any thing bid gold and fiver a, tender in payment of debts, pafs any Jaw impairing the obligation of contrasts f thefe, with a number of others, are important reftridlions of the power of States, and were thought necef-fary to. maintаin the Union; and to eílabiifti fome fundamental uniform principles of public juftice, throughout the whole Union. So that, I think, no argument of force can be taken from the fovereignty of States. Where it has been abridged, it was thought neceflary for the greater indifpcn fable good of the whole. If the Conftitution i& found inconvenient in praftice in this or any other particular, it is well that aregular mode is, pointed out for amendment. ■ But; while it remains,'all offices Legiflative, Executive, and Judicial, both of the States and the Union, are bound by óath tq fupport it.
A fecond queftion made in the cafe was, whether the particular action of ajfumpftt could lie againft a State ? I think af-fumpfit will lie, if any fuit; provided a State is capable of contra&ng.
The third queftion refpefls the competency of fervice, which I apprehend is good and proper ; the fervice being by fummons and notifying the fuit to the Governor ana the Attorney General -, the Governor, who is the Supreme Executive Magiftrate ■and.reprefentative of the State,- who is bound by oath to defend the State, and by the Conftitution to give information to the Le-gillature of all important matters which concern' the inteieft of the State j the Attorney General who is bound to defend the • iptereft of the State in Courts of Law.
Jay, Chief Juf'iee. ' The queftion we are now to decide has been accurately ftated, viz. Is a State fúable by individual citizens of- another State P
It is Laid, that
Georgia
refufes to appear and anfwer to the Plaintiff in- this adtio'n, becaufe {he is a
fovereign
State, and therefore not
liable
to fuch actions. In order to afeertain the me-
Suability znd ftiable are words not in common ufe, but they conciiely and correCtly convey the idea annexed to them.
1st. In determining the fenfe in which Georgia is a fovereign State, it may be ufeful to turn’our attention to the political fitu-aiion we were in, prior to the Revolution, and to the political rights which emerged from the Revolution. All the tountry now poifefled by the United. States was then a part of the dominions appertaining to the crown of Great Britain. Every acre of land in this country was then held mediately- or immediately by grants from that crown. All the people of this country were then, fubjects of the King of Great Britain, and owed allegiance to him ; and all the civil authority then exifting or exercifed here, flowed from the head'" of the Briti/h Empire. •They were in fenfe fellmv fubjeéls, and in a variety of refpe£t& one people. When the Revolution commenced, the patriots did not aflfert that only the fame affinity and focial con - neflion fubfifted between the people, of the colonies, which fub-filled between the people of Gaul, Britain, and Spain, while Roman Provinces, viz. only that affinity and focial connection which refult from the mere circumftance of being governed by the fame Prince ; different ideas prevailed, and gave occafjon to the Con-grefsoi 1774 and 1773-.
The Revolution, or rather- the Declaration of Independence* found the people
already
united for general purpofes, and at the fame time providing for their more domeltic concerns by State conventions, and other temporary arrangements. From the crown of
Great Britain,
the fovereignty of their country palled to. the people of it ; and it was then not an uncommon opinion, that tfie unappropriated lands, which belonged to that crown, paffed not to the people of the Colony or States within wholelimits they were fituated, but to the whole people; on whatever principles this opinion relied, it did not give-way to the other, and thirteen fovereignties were confidered as emerged from the principles of the Revolution, combined with local convenience and conlklerations ; the people neverthelefs continued to conlider themfelves, in a national point of view, as one people ; and they continued without ' interruption to manage their national 'concerns accordingly ; afterwards, . in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the bafis of a general Government.' Experience difappoirited the expectations they had formed from it; and then the people, in their collective and national capacity, eilablijhed the prefent Conllitution. It is r®-
If^ then it be true, that the fovereignty of the nation is in the people of the nation, and the refiduary fovercinty of each Stats in the people pf each State, it may be ufeful to compare thefe fovereignties with thofe in Europe, that we may thence be enabled to judge, .whether all the prerogatives which are allowed to the latter, are fo effential to the former. There is reafon to fufpefl. that fome of the difficulties which, embarrafs the prefent queftion, arife from inattention to differences which fubfift between them.
It will be fufficient to obferve briefly, that the fovereignties ⅛ Europe, and particularly in'
England,
exift oh
feudal
principles. That fyftem confiders the
Prince
as the fovereign, and the
people
as his
fuljects
; it regards his
perfon
as the ofcjedt of allegiance, and excludes the idea of his being on an equal footing with a fubjedb, either in a Court of Juftice or elfewhere. Thai: fyftem contemplates him as being the fountain of honor and authority ; and from his grace and grant derives all fran-chifes, immunities and privileges ; it is eafy to perceive that fuch a fovereign could not be amenable to a Court of Juftice, or fubje&ed to judicial controul and actual conftraint. It'was of neceffity, therefore, that fuability became incompatible with fuch fovereignty. Befides, the
Prince
having all the Executive powers, the judgment of the Courts -would, in fa£t,be only monitory, not mandatory to him, and a capacity to be аdvifed, is a diftinft thing from a capacity to be fued. The fame feudal ideas run through all their jurffprudence, and conftantly remind us of the diftincuon between the
Princezná
the fdbject. • No iuc-h ideas obtain'here 5 at the Revolution, the fovereignty de-* volved on the pec’ple ; and.'they are truly the fovereigns of the country, but they
arefovereigns without Jahjecls
(unlels the
Afri
From the differences exifting between feudal fovereigntieS and Governments founded on compafts, it neceffarily follows that their refpeclive prerogatives mull differ. Soverignty is the right to govern j a nation or State-fovereign is'the perfon of perfons in whom that refides. In- Europe the fovereignty is generally afcribed t® the Prince.; here it refts with the people ; there; the fovereign aétually adminiilers the .Government; here,, never in a fingle inftance; our Governors are the agents of the people, and at moft Hand in the fame relation to their fove-reign, in which regents in Europe Hand to their fovereigns. Their Princes haveperfonal powers, dignities, and pre-eminences, our rulers have none but official; nor do they partake in the fo-vereignty otherwife, or in any other capacity, than as private citizens.
2d. The fecond objedt of enquiry now prefents itfelf, viz. whether fuahility is compatible with'State fovereignty.
Suability, by whom ? Not a fubjedt, for in this country* there are. none ; notan inferior, for all ihe citizens being as to civilrights perfedlly equal, there is not, in that refpedf, one citizen inferior to another.- It is agreed, that one free citizen may fue another f the obvious dictates of jüílice, and the purpofes erf fociety demanding it. It is agreed, that one free citizen may fue any number on whom procefs can be conveniently executed ; nay) in certain cafes one citizen inay fue forty thou-fand 5 for where a corporation is fued, all the members of it arc
añually
fued, though not perfmally, fued. In this' city there are forty odd thoufand free citizens, all of whom may be collectively fued by any individual citizen. In the State of’
.Delaware,
there are fifty odd thoufand free citizens, and what teafon can be affigned why a free citizen who has demands a-gainft them-ihould not profecute them ? Can the difference between-forty odd thoufand, and fifty odd thoufand rrlake any diftindlion as to right ? Is it not as eafv,' and as convenient to the public and parties, to ferve a fummons on the Governor and Attorney General of Delaware, as on the Mayor or other Officefs of the Corporation of
Philadelphia ?
Will it be faid, that the fifty odd thoufand citizens in
Delaware
being affociatecl under a State Government, Hand’in a rank fo fuperior to the forty odd thoufand of
Philadelphia,
- aflbciated under their charter, that although it may become the latter to meet an individu-ad on an equal footing in a Court ofjuftice) yet that fuch a procedure would not comport with the dignity of thé former ?— ’ In this land of equal liberty, fhall forty odd thoufand in one place be cortípt-llabk to .do juitice, and yet fifty odd thoufand in
If there be any fuch incompatability as fe pretended, Whence does it arife ? In what does it confift ? There is at leaft oné ftrong undeniable faft againft this incompatibility, and that is this, any one State in the Union may fue another State, in this Court, that is, all the people of one State may fue all the people of another State» It is plain then, that a State may be J'ued> and hence it plainly follows, that friability and fíate fovereignty are not incompatible. As one State may fue another State itt this Court,, it is plain .that no degradation toa State is thought to accompany her appearance in this Court. It is not therefore to an appearance in this Court that the objefilion points» To what does it point ? It points to an appearance at the füit of one or more citizens. But why it fhould be more incompatible, that all the people of a State fhould be fued by one citizen, •, than by one hundred thoufand, I cannot perceive, the procefs in both cafes being alike ; and the confequenees of a judgment alike. Nor can I obferve any greater inconveniencies in the One ^cafe than in the other,' except what may arife from the feelings of thofe who may regard a leiTer number m an inferior light-. But if any reliance be made on this inferiority as an objection, at leaft one half oí its force is done away by this fa¡S, viz. that it is conceded that a State may appear in this Court as Plaintiff againft a fingle citizen as Defendant; and the truth is, that' the State of Georgia is at this moment profecuting an a ¿lion in this Court againft two citizens of South Carolina. *
The only remnant of objection therefore that remains is, that the State is not bound to appear and anfwer as а Defendant at the fuit cf an individual t but why it is unreafonable that {he fhould be fo bound, is hard to conjecture : That rule is faid td bé a bad one, which does not work both’ ways 5 the citizens of Gorgin'are content with ■ a right of fuing citizens of other States; but are not content that citizens of other States fliould have a right to fue them-.
Let us now proceed-to equire whether
Georgia
has not, by being a party to the national compact, confented to be fuable by individual ^citizens of another State. This enquiry naturally
Prior to the date of the Conftitution, the. people had not any national tribunal to which they could refort for juftice ; the diftribution of juftice was then confined to State judicatories, in whofe inftitution and organization the people of the other States had'no participation, and over whom they had not the leaft controul. There was then no general Court of appellate • jurifdidtion, by whom the errors of State Courts, affecting either the nation at large or the citizens of any other State, could ■be revifed and corrected. Each State was obliged to, acquiefce ,iii the meafure of juftice which another State might yield to her, or to her citizens; and that even in cafes where State con-fiderations were not always favorable to the mod exadt meafure. There was danger that from this fource .animofities would in time réfult; and as the tranfition from animofities to hoftilities was frequent in the hiftory of independent States, a common tribunal for the termination of controverfies became defirable, from motives both of juftice and of policy.
Prior alfo to that period, the United States had, by taking a place among the nations of the earth, become amenable to the. laws’of nations; find it was their intereft as well as-; their duty to provide;. that thofe laws íhould be refpedted and obeyed ; in their national character and capacity, the United States -were vefponfiblc to foreign nations for .the cóndudt of each State, relative to the laws óf nations, and the performance of treaties ; and there the inexpediency of referring all fuch queftions to State Courts, and particularly to the Courts of delinquent States became apparent. While ail the States were bound to protedt each, and the citizens of each, it was highly proper,and reafona-ble/that they íhould be in a capacity, not only to caufe juftice to-be done & each, and the citizéns of each; but alfo to caufe juf-iice. to be done by each, and the citizens of each; and that, not by violence and force, but in a ttáble; fedate, and regular courfe of judicial procedure.
Thefe weje among the evils againft which it was proper for the nation, that is, the people of all the United States, to pro- ' vide by a national judiciary, to be inftitutedby the whole nation, ■ and to" be vefponfible to the whole nation.
Let us now turn to the Conftitution. The people therein declare, that their defign in eftabliihing it, comprehended
fix
objedts. 1 ft. To form a more perfedt union. 2d. Toeftabliih juftice. 3d. To eiifure domeftic tranquillity. 4th. To provide for the common defence. .5 th; To promote the general welfare.- 6th. To fecuve the bleffings of liberty to themfelves and théir poftérity. It would be pleafing and ufcful to confider and trace the relations which each of thefe objedts bears to the others;
It may .he aflcedj. what-is the ¡ preeife fenfe and latitude in which the words “
to cflablijh jujlicc ”
as,here fifed, .are to be underftood ? The anfwer- to this queftion. will refult from the provifiohs made in the Conftitution on this head.. They are Specified in the 2d. fedrion of the 3d article, where it is ordained, that the judicial power of the
United States-
ihall extend to ten deferiptions of cafes, viz. ift. To all cafes arifing under this Conftitution j becaufe the meaning, conftruction, and operation of a compadt ought always to be.afcertained by all the parties, or by authority derived only from one of them.' 2d. To all cafes arifing under the laws of- the
United
'States■ j be-caufe as fuch laws conftitutionally made,- are obligatory on each State, the meafure of obligation and obedience ought not to be decided and fixed by the party frotn whom they.-are due, but by a .tribunal deriving authority from both the parties..- 3d. To'all cafes arifing. under' treaties made by their authority-; -be-caufe, as treaties are compádls made by, and obligatory 01ft the whole- -nation, their operation ought not to be affected .or regulated by the fecal laws or Courts of a part of the nation. 4th. To- all cafes 'affedting Ambaffadors, or other public ‘ Minifters and Confuís •, becaufe, as thefe are officers of foreign nations, whom this nation are bound to protedt and treat according to the laws of nations, cafes affedting them ought only to be cognizable by national authority. 5th. To. all cafes of Admiralty and Maritime j.urifdidtion; becaufe, as the feas-are the joint property of nations, whófe right and privileges relative, therеto, are regulated by the law of nations and treaties,, fuch cafes neceflaiil.y belong to national jufifdidtion. 6th- To controver-fies to which the
United States
ihall he a party j becaufe in cafes in which the whole .people are interefted, it would not be equal or wife' to let any one State decide and meafure out the juff ice due to others. 7th. To. controverfies between, two or more States ; becaufe domeftic tranquillity .requires, that the contcu-tionsof States ffiould be peaceably terminated by a common judicatory .; and, becaufe,. in a free country j-uftice ought not-to depend on the
will
of either of the litigants. • 8th. To con-troverfies between a State and citizens of another State ; be-caufe in cafe a State (that is all the citizens of it) has demands againft. fome. citizens'of another State, it is better that llie. ffiould prcfecute their demands in-a national Court,' than in a Court of the State to-which thofe citizens belong ; the danger of irritation⅛ and criminations arifing from apprehenfions and
The question now before us renders it necessary to pay particular attention to that part of the 2d section, which extends the judicial, power “to controversies between a state and citizens, of another state." It is contended, that this ought to be con-strued to reach none of these controversies, excepting those in which a State may be Plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.
This extension of power is
remedial,
because it is to settle controversies. It is therefore, to be construed liberally. It is politic, wife, and good, that, not only the controversies, in which a State is
Plaintiff,
but also those in which a State is
Defendant,
should be settled; both cases, therefore, are within the reason of the remedy; and ought to be so adjudged, unless the obvious, plain, and literal sense of the words forbid it. If we attend to the
words,
we find them to be express, positive, free from ambiguity, and without room for such implied expressions: “Th
e judicial, power of the United States shall extend to extend to controversies between a state and citizens of another state.”
If the Constitution really meant to extend these powers only to those controversies in which a State might be
Plaintiff,
to the exclusion those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words, not only so incompetent, but also repugnant to it; if it meant to exclude a certain class of these controversies, why were they not expressly excepted; on the contrary, not even an intimation of such intention appears in
The exception contended for, would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is, to ensure justice to all: To the few against the many, as well as to the many against the few. It would be strange, indeed, that the joint and equal sovereigns of this country, should, in the very Constitution by which they professed to establish justice, to far deviate from the plain path of equality and impartiality, as to give to the collective citizens of one State, a right of suing individual citizens of another State, and yet deny to those citizens a right of suing them. We find the same general and comprehensive manner of expressing the same ideas, in a subsequent clause; in which the Constitution ordains, that “ in all cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be a party, the Supreme Court shall have original jurisdiction.” Did it mean here party-Plaintiff? If that only was meant, it would have been easy to have found words to express it. Words are to be understood in their ordinary and common acceptation, and the word party being in common usage, applicable both to Plaintiff and Defendant, we cannot limit it to one of them in the present case. We find the Legislature of the United States expressing themselves in the like general and comprehensive manner; they speak in the 13th section of the judicial act, of controversies where a State is a party, and as they do not impliedly or expressly apply that term to either of the litigants, in particular, we are to understand them as speaking of both. In the same section they distinguish the cases where Ambassadors are Plaintiffs, from those in which Ambassadors, are Defendants, and make different provisions respecting those cases; and it is not unnatural to suppose, that they would in like manner have distinguished between cases where a State was Plaintiff, and where a State was Defendant, if they had intended to make any difference between them; or if they had apprehended that the Constitution had made any difference between them.
I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is, or is not, now the case, ought not to be thus collaterally and incidentally decided: I leave it a question.
As this opinion, though deliberately formed, has been hastily reduced to writing between the intervals of the daily adjournments, and while my mind was occupied and wearied by the business of the day, I fear it is less concise and connected than it might otherwise have been. I have made no references to cases, because I know of none that are not distinguishable from this cafe; nor does it appear to me necessary to shew that the sentiments of the best writers on Government and the rights of men, harmonize with the principles which direct my judgment on the present question. The acts of the former
Congresses,
and the acts of many of the State Conventions, are replete with similar ideas, and to the honor of
the United States, it
may be observed, that in no other country are subjects of this, kind better, if so well, understood. The attention and attachment of the Constitution to the equal rights of the people are discernable in almost every sentence of it; and it is to be regretted that the provision in it which, we have been considering, has not in every instance received the approbation and acquiescence which it merits.
Georgia
has in strong language advocated the cause of republican equality: and there is reason to
For my own part, I am convinced that the sense in which I understand and have explained the words “controversies between States and citizens of another State,” is the true sense. The extension of the judiciary power of the United States to such controversies, appears to me to be wife, because it is honest, and because it is useful. It is honest, because it provides for doing justice without respect of persons, and by securing individual citizens as well as States, in their respective rights, performs the promise which every free Government makes to every free citizen, of equal justice and protection. It is useful, because it is honest, because it leaves not even the most obscure and friendless citizen, without means of obtaining justice from a neighbouring State; because it obviates occasions of quarrels between States on account of the claims of their respective citizens; because it recognizes, and strongly rests on this great moral truth, that justice is the same whether due from one man or a million, or from a million to one man; because it teaches and greatly appreciates the value оf our free republican national Government, which places all our citizens on an equal footing, and enables each and every of them to obtain justice without any danger of being overborne by the weight and number of their opponents; and, because it brings into action, and enforces this great and glorious principle, that the people are the sovereign of this country, and confequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Court's to have their controversies determined. The people have reason to prize and rejoice in such valuable privileges; and they ought not to forget, that nothing but the free courfe of Conilitutional law and Government can ensure the continuance and enjoyment of them.
For the reasons before given, I am clearly of opinion, that a State is suable by citizens of another State; but left I should be understood in a latitude beyond my meaning, I think it necessary to subjoin this caution, viz, That such suability may nevertheless not extend to all the demands, and to every kind of action; there may be exceptions. For instance, I am far from being prepared to say that an individual may sue a State on bills of credit issued before the Constitution was esltblished, and which were issued and received on the faith of the State, and at a time when no ideas or expectations of judicial interposition were entertained or contemplated.
It is ordered, that the Plaintiff in this cause do file his declaration on or before the first day of March next.
Ordered, that certified copies of the said declaration be served on the Governor and Attorney General of the State of Geor gia, on or before the first day of June next.
Ordered, that unless the said State shall either in due form appear, or snew cause to the contrary in this Court, by the first day of next Term, judgment by default shall be entered against the said State. *
THE Court being met, a commission appointing William Paterson, one of the Justices, bearing, date the 4th of March, 1793, was read; and he was qualified according to law. †
See Gast's Hist, of Greece ¡ p, 321.
. 231.'
.Él. -4.5—5a. 147, i-6'j—i6i.
Notes
Ant. b.
Som, Sup. c. 3.
Ait. i. s, T -Írí. 3.-'r. 3. Art.
Fait. B. 1, a #.<4*
Jit, 113;
i Sl, t Com, ciu. 2.42.
Sid. 53 u
Mol. 71. Book it.
4 C. A. N. 487.
Com. 104.
Brae. .icy. Com,--104.
Q, fl IZ4<,
Col. Jur. 68, ‘*'War, 347:
Efi 155.. ' i Bt. 155,=
27.. J. 2. v. 54. Pol, J.2, one of the words, of1 which democracy in compounded.
Ar. 1 . ⅛* to.
Brae, 107.
Art. 5. s. 2.
Georgia v. 'Zrqilsford, et ah Ant. 1,
In February Term, 1794, judgment was rendered for the Plaintiff, and a Writ of Enquiry awarded. The Writ, however, was not sued out and executed; so that this cause, and all the other suits against States, were swept at mice from the Records of the Court, by the amendment to the Federal Constitution, agreeably to the unanimous determination of the Judges, in Hollingsworth et al. v. Virginia, argued at February Term, 1798.
Judge Paterson’s appointment was in the room of Mr. Justice Johnson, who had resigned.
The Malignant Fever, which during this year, raged in the City of Philadelphia, dispersed the great body of its inhabitants, and proved fatal to thousands, interrupted, likewise, the business of the Courts; and I cannot trace, that any important cause was agitated in the present Term.