By the Court: This is not like .the case of several defendants, where ;a service on one might be gopd, though not bn another. Here the.service prescribed .by the rule is to be on the governor, and on the attorney general. ' A service on one is not sufficient to entitle the court to proceed.
Upon an application by the counsel for the state of New Jersey, that a day might be.assigned to'argue the question'of the jurisdiction.of this court to proceed in the case, tli'e court said they'had'no difficulty in assigning a day. It might bé as well to give notice to the state.of New York, as they might employ counsel in-the interim. If,' indeed, the argument should .be merely ex parte, the court could not feel bound, by its decision; if the state .of New York desired to have the question again argued.
A notice was given by the solicitors for the state of Ne w Jersey .to the' govérnor of the state of New York, dated the 12'jth of January 1830, stating, that a bill had been filed on the equity side, of the-supreme court,, by the state, of New Jersey, against the people of the state of New York, and (hat on the 13th of February following, the court would be moved in the case for such order as the court might deem proper, .&ci- Afterwards, oh the day'appointed, no counsel having appeared, for the state of New York, on the motion of the counsel for the state Of New Jersey, for a subposna to be served.on the governor and attorney general of the state, of New York; the court said : as no counsel appears to argue the motion on the part of'the state of New York,' and the precedent , for, granting it .ha9 been established, upon'.very grave -and solemn argument, the Court do not require an ex partaargument in favor of their authority to grant the. subpoena, bnt will follow the precedent heretofore established. The state of New York will be at liberty to contest the proceeding at,a future time'in the course of the cause, if they shall choose so,to do.
A BILL was filed on the equity side, of the court, by the state of New Jersey, on the 20th of February 1829, against the people of the. state of New Yorkj and on piotion of Mr Wirt for the complainants, a.subpoena was awarded by the court On the 16th of March 1829. The writ issued on the 26th of May 1829ó A-copy of the subpoena and of the bill *462 was served , on the attorney general of New Yorkr personally, on the . 5th day of June 4829, by the marshal of the southern district of New York, and on the acting governor of the-state, by transmitting the same to him by letter. The acting governor acknowledged “due service of the same,” by,an indorsement on the-subpoena, .signed by him on the 5th day. of June ,1829.
The subpoena was returnable, on the first Monday in August 1829, being the'third day of . that month, arid fifty-nine days after the service. And no appearance having been entered for the defendants, on the 6th of- October .1829-an alias subpoena was issued,,re turnable to January term. 1830.. This writ was served on the acting governor of New York on the 9th of November Í829,.sixty-one days before, the term, by delivering a true copy of the same to him. The marshal of the southern district of New York returned, as to the attorney general of New'York, “ the attorney general of New York, Green C. Bronson, Esq. not. found, being absent, and not within my, district.”
“ By -virtue of a writ of subpoena to vou directed and here-, with shown, you are required to. be and appear, on behalf of the people of ihe state of New Ifork, before the supreme court of the United States holding pleas, in equity, ón Jhe second Monday in January next, at the city of Washington, in the district of Coluriibia, being the present seat of the natiónal government of the United States, td answer concerning those things which shrill be objected to the said state in a bill in equity now depending in. the said court, wherein the state of New Jersey is complainant, and the people of. the state of NeW York are defendants, tp do and receive, on behalf of the said state of New York, what further the . said court shall have considered in this behalf. *463 And this you may in no wise omit, under the penalty of five hundred dollars, dated the first Monday of August, in the year of our Lord 1829.”
A similar notice was issued, directed to the attorney general of New York, but was not served upon him.
No appearance having been filed on the 12th of Januavy 1830, Mr Southard, attorney general of New Jerseyand Mr Wirt, solicitors for the complainants, addressed to the governor of the state and the attorney general of New York the following letter:
This letter was delivered to the attorney general of New York, then in the city of Washington, on the 13th of January 1830, and to the governor Of the state on the 21st of January 1830.
The motion of the solicitors for the plaintiffs coming on for argument, on the 13th of February 1830; Mr Wirt said, that there are two questions to be presented : the first, whether there had been a sufficient service of the subpoena, supposing the court to have jurisdiction to issue it without an act of congress. The second was, whether such jurisdiction existed.
Mr. Wirt-then said, that he- should be glad to háve a day assigned to argue the point of jurisdiction, if-the court chose., before another subpoena issued; as-it might,-if decided against the..plaintiffs, prevent unnecessary expenses.. He would he> willing-that it should be at so distanfa day, as to enable the., state of New York to appear and employ- counsel. He méntionjed three week’s from the day of the.application.
Mr Chjef Justice Marshall said, the ccrurf had no difficulty in assigning .that day for.the.motión.'It.might bé as well to give notice to the state of Néw-York, as they might employ counsel in'.the. interim. - If, in.dcedj the argument should be merely.ex parte,.the court would not feel b’ound-by its decision ; if the state of New. York afterward desired to have-the question again argued( a ).
Motion granted, and notice directed.
*465 In conformity with the direction of the court, notice of . the'day appointed for hearing the motion for a subpoena was
Utica, N. Y. 'July 27, 1829.
Sir,
The governor and attorney general of the state óf New York were recently served with thé copy of a bill in equity, said to have been exhibited, in the .supreme court of the United States, by “ The State of New Jerséy vs. The Feople. of the State of New York,” and with a subpoena in that cause to appear on the first Monday of August next.
Lbeg.leave respectfully to say, that such service is'regarded on the part of the state of New York as utterly void; because the mode adopted is unknown to the common law, is-not authorised by any statute of the United States, nor warranted by" any existing rule or order of the court out of which the process issued. A rule on the subject of the’service' of process was adopted in August .term . 1796,
Entertaining this view of the subject, it is supposed that no proceeding will be had in the cause, either in vacation or at term, until the court shall-have directed the mode of serving such process, and the prescribed course Shall have been pursued.
Whether the court has been clothed with power to compel the appearance of a state as defendant in an original suit or proceeding, is ^question, among.' •others, which will no doubt receive from that high tribunal all the consideration that its importance demands, before any order shall be made in the premises.
I vyHl thank you to hand this to the court, if the subjectshall ever be presented to their consideration, and should'any rule or order be made in,' or affecting-this causé, please send a certified copy,' addressed to pae at Albany.'
To the Honourable the Chief Justice, and his Associate Justices, of the Supreme Court of the-United States.
The counsel for the state of New Jersey inquired of the court, if they would hear an argument on the motion that a subpoena might issue to be served on the governor and attorney general of the state of New York, stating that they were willing and prepared to go into the same.
.Mr Chief Justice Marshall said, as no one appears to-argue the motion on the part of the state of New York, and the precedent for granting .the process has -been established upon very grave and solemn argument, in the case pf Chisholm
vs.
The State of Georgia,
2
Dall. Rep. 419, and Grayson
vs.
The State of Virginia,
The court are the more disposed to adopt this course, as the state of New York will still be at liberty to contest the
X bSg leave respectfully to say, that the. opinion is entertained on the part of the state of New York, that this court cannot cxevcisé jurisdiction in such a case, without the authority of an act of congress for carrying into execution that part of the judicial power of the United States which extends to controversies between two or -more states.
The governor of the state of New York has made a communication upon the subject of this suit to the legislature now in session; but it has not yet been acted upon, so far as I have, been advised. Whether the legislature will authorise any person to appear and discuss the question of jurisdiction; or whether, for the purpose of obtaining a judicial decision upon- the merits of .an unfortunate controversy, they will order an appearance, waiving the question of jurisdiction, I am, at this time, unable to determine.
I have deemed it proper to make this communication, to explain what might .otherwise be supposed a want of respect for this honourable court,-on the part of the executive of NewYork.
Attorney• General of New York. *467 proceeding at a future time in the course of the cause, if it shall choose, to insist upon the objection.
On consideration of the motion made by Messrs Southard and Wirt, solicitors for the complainant in this cause, on Saturday the 13th day of February of the present term of this court, praying the court to postpone the consideration of this cause until Saturday the 6th of March of the present term of this court, with leave to the counsel for the said complainant on that day either to argue the point of jurisdiction, or to move the court for a decree in pursuance of'the notice therein.recited, or for new process in case the court should determine that the service of the process in this case was not sufficient to entitle the court to proceed against the state of New York, or for such cither order as to the court may seem meet: it is considered by the court, that as no one appears to argue this motion on the part of the state of.New York, and the precedent has been established in the case of Chisholm’s Executors against the State of Georgia, the court do not consider it proper to require an ex parte argument, but will follow the precedent so established after grave and solemn argument. The court is the more disposed to adopt this course, as the state of New York will be at liberty to contest this proceeding at any time in the course of the cause. Whereupon it is ordered by the court that, ás the service of the former process in this cause was defective, inasmuch as it was not served sixty days before the •return day thereof, as required by the rules of this court, process of subpoena be, and the same is hereby'awarded as prayed.for by the complainant( a ).
(a) The following letters, addressed by the-attorney general bf New York to the clerk of the court, dated July 27, 1829, ün'd,tó the chief justice and the, associate justices, dated January 8, 1830, were read during the discussion.
(a) The following is a copy of the subpoena awarded by the court:
The president of the United States to the governor and the attorney general, of the state of New York, greeting: — For certain causes offered before the supreme court of the United States, holding jurisdiction in equity, you are hereby commanded and strictly enjoined, that, laying all matters aside, and notwithstanding any excuse, you personally be and appear, on behalf of the people of the said state of New York,^before the said supreme court, holding jurisdiction in equity, on the first Monday in August next, at the city of Washington, in the *468 district of Columbia, , being the present seat of the national government of the United States, to answer concerning the things which shall then and there be objected to the said state, and to do further and receive on behalf of the said state, what the said supreme court, holding jurisdiction in equity, shall have considered in this behalf; and this you may in no wise omit, under the penalty of five hundred dollars. Witness, the honourable John Marshall, Esquire,, chief justice of the said supreme court at Washington city, the second Monday in January, being the ílth day of said month, in the year of our Lord 1830, and of the independence of the United States the fifty-fourth.