pg.440 Dall. 2
418 1793
CHISHOLM, Ex'r. versus GEORGIA..
Under the constitution of the United States as
first adopted, a State could be sued by a citizen of
another State, in assumpsit. Service on Governor
and Attorney General sufficient. Unless State ap-
peared after service, judgment by default could be
entered.
THIS action was instituted in August Term,
1792. On the 11th of July, 1792, the Mar-
1.--An amicable action was accordingly entered
and tried at the bar of the Supreme Court. in Feb-
ruary Term, 1794,(see 3Vol. p.1.) when a verdict was
given for the Defendant (Brailsford) and the In-
junction was, of course, dissolved.
shall for the district of Georgia, made the fol-
"lowing return: "Executed as within com-
"manded, that is to say, served a copy thereof
"on Iris excellency Edward Telfair, Esq. Gov-
"ernor of the State of Georgia, and one other
"copy on Thomas P. Carnes, Esq. the Attar-
"ney General of said State."
"ROBERT FORSYTH, Marshall."
Upon which Mr. Randolph, the Attorney
General of the United States, as counsel for the
plaintiff, made the following motion on the
11th of August, 1792. "That unless the State
"of Georgia, shall, after reasonable previous
"notice of this motion, cause an appearance to
"be entered, in behalf of the said State, on the
"fourth day of the next Term, or shall then
"show cause to the contrary, judgment shall
"be entered against the said State, and a writ
"of enquiry of damages shall be awarded." But
to avoid every appearance of precipitancy, and
to give the State time to deliberate on the
measures she ought to adopt, on motion of Mr.
Randolph, it was ordered by the Court, that
the consideration of this motion should be post-
poned to the present Term. And now Inger-
soll, and Dallas, presented to the Court a writ-
ten remonstrance and protestation on behalf of
the State, against the exercise of jurisdiction in
the cause; but, in consequence of positive in-
structions, they declined taking any part in ar-
guing the question. The Attorney General.
therefore, proceeded as follows.
Randolph, for tile plaintiff. I did not want
the remonstrance of Georgia, to satisfy me that.
the motion, which I have made is unpopular.
Before that remonstrance was read. I had learnt
from the acts of another State, whose will must
be always dear to me, that she too condemned
it. On ordinary occasions these dignified opin-
ions might influence me greatly: but on
*this which brings into question a con- [*420
stitutional right. supported by my own convic-
tion, to surrender it would in me be official per-
fidy.
It has been expressed, as the pleasured of the
Court, that the motion should be discussed, un
der the four following forms:
1st. Can the State of Georgia, being one of
the United States of America, lie made a pary-
defendant in any case, in the Supreme Court of
the United States, at the suit of a private citi-
zen, even although he himself is, and his testa-
tor was, a citizen of the State of South-Caro-
lina?
2d. If the State of Georgia can be made a
party defendant in certain cases does an action
of assumpsit lie against her?
3d. Is the service of the summons upon the
Governor and Attorney General of the State of
Georgia, a competent service?
4th. By what process ought the appearance
of the State of Georgia to be enforced?
1st. The Constitution and Judicial Law are
the sources from which the jurisdiction of the
Supreme Court is derived. The effective pas-
sages in the Constitution are in tim second sec-
tion of the third article. "The judicial power
"shall extend to controversies between a State
"and citizens of another State." "In cases, in
"which a State shall be a party, the Supreme
"Court shall have original jurisdiction." The
judicial act thus organizes the jurisdiction, de-
lineated by the Constitution. "The Supreme
"Court shall have exclusive jurisdiction of all
"controversies of a civil nature, where a State
"is a party, except between a State and its citi-
"zens; and except, also, between a State and
"citizens of other States and aliens, in which lat-
"ter case, it shall have original, but not exclu-
"sive jurisdiction." :
Upon this basis we contend.
1st. That the Constitution vests a jurisdic-
tion in the Supreme Court over a State, as a de-
fendant, at the suit of a private citizen of anoth-
er State.
2d. That the judicial act recognizes that
jurisdiction.
1st. The Constitution vests a jurisdiction in
the Supreme Court over a State, as a defendant,
at the suit of a private citizen of another State.
Consult the letter of the Constitution, or rather
the influential words of the clause in question.
The judicial power is extended to controversies
between a State and citizens of another State.
I pass over the word, "between," as in no re-
spect indicating who is to be Plaintiff or who
Defendant. In the succeeding paragraph, we
read a comment on these words. when it is said,
that in cases, in which a State shall be a party,
the Supreme Court shall have original jurisdic-
tion. Is not a defendant a parry as well as a
421*] plaintiff? If authority *be necessary
for so notorious a definition, recur to 1 Harr.
Chan. Pract. p. 35. where it is observed that
"in this Court." that is, in the High Court of
Chancery of England. "suits are generally
commenced, prosecuted, and defended by par-
ties, in their own names only." l might appeal
too to a work of greater solemnity, and of
greater obligation: the articles of confederation.
In describing the mode, by which differences
between two or more States shall be adjusted.
they speak of a day to be assigned for the ap-
pearance of the parties; of each party alter-
nately striking the names of the persons pro-
posed as Judges: of either party neglecting to
attend; of striking names in behalf of a party
absent; of any of the PARTIES refusing to sub-
mit to the authority of the Court: and of lodg-
ing the sentence among the acts of Congress for
the security of the parties concerned. Human
genius might be challenged to restrict these
words to a plaintiff state alone. It is indeed
true, that according to the order in which the
controversies of a State are mentioned, the State
is the first; and from thence it may be argued.
that they must be those in which a State is first
named, or plaintiff. Nobody denies, that the
citizens of a State may sue Foreign subjects, or
Foreign subjects the citizens of a State. And
yet, the expression of tile Constitution is. "be-
tween a State or the citizens thereof, and Foreign
States, citizens or subjects." The order in this
instance. works no difference. In common
language too, it would not violate the substantial
idea, if a controversy, said to be between A. B.
and C. D. should appear to be between C. D.
and A. B. Nay the opportunity fairly occurs
in two pages of the judicial article, to confine
sails to States, as plaintiffs; but they are both
neglected, notwithstanding the consciousness
which the convention must have powered, that
the words unqualified, strongly tended at least
to subject States as defendants..:
With the advantage of the letter on our side,
let us now advert to the spirit of the Constitu-
tion, or rather its genuine and necessary inter-
pretation. I am aware of the danger of going
into a wide history of the Constitution, as a
guide of construction; and of the still greater
danger of laying any important stress upon the
preamble as explanatory of its powers. I resort,
therefore, to the body of it: which shews that there
may be various actions of States which are to be
annulled. If, for example, a State shall suspend
the privilege of a writ of habeas corpus, unless
when in cases of rebellion or invasion the public
safety may require it; should pass a bill of at-
tainder or ex post facto law; should enter into
any treaty, alliance, or confederation; should
grant letters of marque and reprisal; should
corn money; should emit bills of credit; should
make any thing but gold and silver coin a tender
in payment of debts, should pass a *law [*422
impairing the obligation of contracts; should
without the consent of Congress, lay imposts
or duties on imports or exports, with certain
exceptions; should, without the consent of Con-
gress, lay any duty on tonnage, or keep troops
or ships of war in time of peace; these are ex-
pressly prohibited by the Constitution: and thus
is announced to the world the probability, but
certainly the apprehension, that States may in-
jure individuals in their property, their liberty,
and their lives; may oppress sister States; and
may act in derogation of the general sovereignty.
Are States then to enjoy the high privilege
of acting thus eminently wrong, without con-
troul; or does a remedy exist? The love of
morality would lead us to wish that some check
should be found; if the evil. which flows from
it. be not too great for the good contemplated.
The common law has established a principle.
that no prohibitory act shall be without its vin-
dicatory quality; or, in other words, thai the
infraction of a prohibitory law, although an ex-
press penalty be omitted, is still punishable,
Government itself would be useless, if a pleasure
to obey or transgress with impunity should be
substituted in the place of a sanction to its laws.
This was a just cause of complaint against the
deceased confederation. In our solicitude for
a remedy, we meet with no difficulty, where the
conduct of a State can be animadverted on
through the medium of an individual. For in-
stance, without suing a State. a person arrested
may be liberated by habeas corpus; a person
attainted and a convict under an ex post facto
law, may be saved; those, who offend against
improper treaties. may be protected, or who
execute them, may be punished; the actors un-
der letters of marque and reprisal may be
mulcted; coinage, bills of credit, unwarranted
tenders, and the impairing of contracts between
individuals, may be annihilated. But this re-
dress goes only haft way; as some of the pre-
ceding unconstitutional actions must pass
without censure unless States can be made de-
fendants. What is to be done, if in consequence
of a bill of attainder, or an ex post facto law, the
estate of a citizen shall be confiscated, and de-
posited in the treasury of a State" What, if a
State should adulterate or coin money below
the Congressional standard, emit bills of credit,
or enact unconstitutional tenders. for the pur-
pose of extinguishing its own debts? What if
a State should impair her own contracts? These
evils, and others which might be enumerated
like them, cannot be corrected without a suit
against the State. It is not denied, that one
State may be sued by another; and the reason
would seem to be the same, why an individual,
who is aggrieved, should sue the State aggriev-
ing. A distinction between the cases is sup-
portable only on a supposed comparative in-
423*] feriority of the *Plaintiff. But, the
framers of the Constitution could never have
thought thus. They must have viewed human
rights in their essence, not in their mere form.
They. had heard, seen--I will say felt; that
Legislators were not so far sublimed above other
men, as to soar beyond the region of passion.
Unfledged as America was in the vices of old
Governments, she had some incident to her own
new situation: individuals had been victims to
the oppression of States.
These doctrines are moreover justified: 1st.
By the relation in which the States stand to the
Federal Government: and, 2d. By the law of
nations, on the subject of stung sovereigns;
and, 3d. They are not weakened by any sup-
posed embarrassment attending the mode of ex-
ecuting a decree against a State.
1st. I acknowledge, and shall always contend,
that the States are sovereignties. But with the
free will, arising from absolute independence,
they might combine in Government for their
own happiness. Hence sprang the confedera-
tion; under which indeed the States retained
their exemption from the forensic jurisdiction
of each other, and, except under a peculiar
modification, of the United States themselves.
Nor could this be otherwise; since such a juris-
diction was no where (according to the language
of that instrument) expressly delegated. This
Government of supplication cried aloud for its
own reform; and the public mind of America
decided, that it must perish of it.self, and that
the Union would be thrown into jeopardy, unless
the energy of the general system should be
increased. Then it was the present Constitution
produced a new order of things. It derives its
origin immediately from the people: and the
people individually are, under certain limita-
tions, subject to the legislative, executive, and
Judicial authorities thereby established. The
States are in fact assemblages of these individuals
who are liable to process. The limitations,
which the Federal Government is admitted to
impose upon their powers, are diminutions of
sovereignty, at least equal to the making of
them defendants. It is not pretended, however,
to deduce from these arguments alone, the
amenability of States to judicial cognizance;
but the result is, that there is nothing in the
nature of sovereignties, combined as those of
America are, to prevent the words of the
Constitution, if they naturally mean, what I
have asserted, from receiving an easy and usual
construction. But pursue the idea a step farther;
and trace one, out of a multitude of examples,
in which the General Government may be con-
vulsed to its centre without this judicial power.
If a State shall injure an individual of another
State, the latter must protect him by a remon-
strance. What if this be ineffectual? To stop
there would cancel his allegiance; one State
cannot sue another for such a cause; acquiescence.
424*] is not to *be believed. The crest of war
is next raised; the Federal head cannot remain
unmoved amidst these shocks to the public
harmony. Ought then a necessity to be created
for drawing out the general force on an occa-
sion so replete with horror? Is not an adjust-
ment by a judicial form far preferable? Are
not peace and concord among the States two of
the great ends of the Constitution? To be
consistent, the opponents of my principles must
say, that a State may not be sued by a foreigner.
--What? Shall the tranquillity of our country
be at the mercy of every State? Or, if it be
allowed, that a State may be sued by a foreigner,
why, in the scale of reason, may not the measure
be the same, when the citizen of another State
is the complainant? Nor is the history of
confederacies wholly deficient in analogy;
although a very strict one is scarcely to be
expected. A parade of deep research into the
Amphyctionic Council, or the Achaean league,
would be fruitless, from the dearth of historical
monuments. With the best lights they would
probably be found, not to be positively identical
with our union. So little did they approach to
a National Government, that they might well
be destitute of a common judicatory. So ready
were the ancient Governments to merge the
injuries to individuals in a State quarrel, and so
certain was it, that any judicial decree must
have been enforced by arms, that the mild form
of a legal discussion could not but be viewed
with indifference, if not contempt. And yet it
would not be extravagant to conjecture, that all
civil causes were sustained before the Amphyc-
tionic Council.[1] What we know of the Achaean
confederacy, exhibits it as purely national, or
rather consolidated. --They had common Magis-
trates taken by rotation, from the towns; and
the amenability of the constituent cities to some
Supreme Tribunal, is as probable as otherwise.[2]
But, in fact, it would be a waste of time, to
dwell upon these obscurities. To catch all the
semblances of confederacies, scattered through
the historic page, would be no less absurd, than
to search for light in regions of darkness, or a
stable Jurisprudence in the midst of barbarity
and bloodshed. Advancing then, into more
modern times, the Helvetic Union presents itself;
one of whose characteristics is, that there is no
common Judicatory. Stanyan, 117. Nor, does
it obtain in Holland. But it cannot be concluded
from hence, that the Swiss or the Dutch, the
jealousy of whom would not suffer them to
adopt a National Government, would deem it
an abasement, to summon a State, connected as
the United States are, before a National Tribunal.
But our anxiety for precedents is relieved by
appealing to the Germanic Empire. The jumble
of fifty principalities together no more deserves
*the name of one body, than the [.*425
incoherent parts of Nebuchadnezzar's image.
The Princes wage war without the consent of
their paramount sovereign; they even wage
war upon each other; nay upon the Emperor
himself; after which it will add but little to say,
that they are distinct sovereignties. And, yet
beth the Imperial Chamber, and the Aulic
Council hear and determine the complaints
of individuals against the Princes.[3]
It will not surely be required to assign a reason,
why the Confederation did not convey a similar
1.--See Anacharsis, 3 Vol. p. 300.
2.--See Gast's Hist. of Greece, p. 321.
3.--See Hist. of Germanic Body, p. 157. 8.
jurisdiction; since that scanty and strict paper
was of so different a hue and feature from the
Constitution, as scarcely to appear the child of
the same family.
I hold it, therefore; to be no degradation of
sovereignty, in the States, to submit to the
Supreme Judiciary of the United States. At
the same time, by way of anticipating an
objection, I assert, that it will not follow, from
these premises, that the United States themselves
may he sued. For the head of a confederacy
is not within the reach of the judicial authori-
ties of its inferior members. It is exempted by
its peculiar pre-eminences. We have indeed
known petitions of right, monstrans de droit,
and even process in the Exchequer. But the
first is in the style of intreaty; the second, being
apparent upon the record, is so far a deduction
from the royal title; the third, as in the banker's
ease in the 11th volume of the State trials, is
applicable only, where the charge is claimed
against the Revenue; and all of them are widely
remote from an involuntary subjection, of the
sovereign to the cognizance of his own Courts.
2d. But what ,if the high independency of
dissevered nations remained uncontrouled among
the United States, so far as to place the individ-
ual States no more within the sphere of the
Supreme Court, than one independent nation is
within the jurisdiction of another? It has been
a contest amongst civilians, whether one Prince
found within the territory of another, may be
sued for a contract.[1] I do not assert the affirma-
tive; but it is allowable to observe that such a
position, once conceded, would illustrate and
almost settle the present inquiry. But the same
author, who repudiates the former idea is
strenuous in the opinion, that where the effects,
or property, of one Prince are rested in the
dominions of another, the proprietor Prince
may be summoned before a tribunal of that
other. Now, although, each State has its sepa-
rate territory, in one sense, the whole is that of
the United States, in another. The jurisdiction
of this Court reaches to Georgia, as well as to
Philadelphia. If therefore, the process could
426*] be commenced in rem, the authority. *of
Bynkershock would justify us; and whether it be
commenced in rem, or in personam, the principle
of amenability is equally avowed.
3d. Nor will these sentiments be weakened
by the want of a special provision in the Con-
stitution for an execution; since it is so provided
in no case, not even where States are in litiga-
tion. This will be more properly arranged
under the following head concerning the Judi-
cial act.
II. 1. The judicial act recognizes the juris-
diction over States. Instead of using the first
expression in the Constitution, to wit, "contro-
versies, between, &c." it adopts the second,
namely, "where a State shall be a party." Thus
it makes no dictinction between a State as
Plaintiff, or as Defendant; but evidently com-
prehends in the word "party" a State, as
Defendant in one case at least, where a State is
opposed to a State. This, after what has been
said, need not be further pressed.
2. The master objection is, that the law has
prescribed no execution against a State; that
gone can be formed with propriety; and that,
1.--Bynk. c. 3. c. 4.
therefore, a Judgment against a State must be
abortive. It is true, that no express execution
is given by the judicial act or the process act.
But has it ever been insinuated, that a dispute
between two States is not within Federal cog-
nizance, because no execution is marked out?
Or, that for a like reason, the Court, given by
the confederation. could not proceed? .
The Supreme Court are either vested with
authority by the judicial act, to form an execu-
tion. or possess it as incidental to their jurisdic-
tion. By the 14th section of the judicial act,
the Supreme Court, as one of the Courts of the
United States, has power to issue writs of scire
facias, habeas corpus, and all other writs, not
specially provided for by the statute, which may
be necessary for the exercise of their respective
jurisdictions, and agreeable to the principles and
usages of law. Executions for one State against
another, are writs not specially provided for by
statute, and arc necessary for the exercise of the
jurisdiction of the Supreme Courts, in a contest
between States; and although, in neither the
common law, nor any statute, the form of such
an execution appears; yet is it agreeable to the
principles and usages of law, that there should
be a mode of carrying into force a jurisdiction.
which is not denied. If then the Supreme Court
may create a mode of execution, when a State
is defeated at law by a State, why may not the
same means be exerted where an individual is
successful against a State? Again: The pro-
cess-act, which dictates the modes of execution
to the other Courts, is silent as to the Supreme
Court; it must, therefore, be either wholly
without executions, or derive them from the
foregoing section of the judicial act, or adopt
them, on the ground of incidental *pow- [*427
er. The total negation of execution is obviously
inadmissible; and the construction of the Ju-
dicial act, which has been just insisted on,
would be sufficiently efficacious. But why may
not executions even spring from the will of the
Supreme Court, as the writs of scire facias, levari
facias, and distringas were originally the crea-
tion of Courts? Such an incidental authority
is not of a higher tone than that of fine and
imprisonment, which belongs to every Court of
record, without a particular grant or it. But
what species of execution can be devised? This.
though a difficult task, is not impracticable.
And if it were incumbent on me to anticipate
the measures of the Court, I would suggest these
outlines of conduct. First. that if the Judgment
be for the specific thing. it may be seized; or,
secondly. if for damages, such property may be
taken, as, upon the principles, and under the
circumstances cited from Bynkershock, would
be the groundwork of jurisdiction over a sover-
eign Prince. However, it is of no consequence,
whether the conjectures be accurate or not; as
a correct plan can doubtless be discovered.
Still we may be pressed with the final ques-
tion: "What if the State is resolved to oppose
the execution?" This would be an awful ques-
tion indeed! He, to whose lot it should fall to
solve it, would be impelled to invoke the god of
wisdom, to illuminate his decision. I will not
believe that he would recal the tremendous
examples of vengeance. which in past days have
been inflicted by those who claim. against those
who violate, authority. I will not believe that
in the wide and gloomy theatre, over which his
eye should roll, he might perchance catch a
distant glimpse of the Federal arm uplifted,
Scenes like these are too full of horror, not to
agitate, not to rack, the imagination. But at
last we must settle on this result; there are
many duties, precisely defined, which the States
must perform. Let the remedy which is to be
administered, if these should be disobeyed, be
the remedy on the occasion, which we contem-
plate. The argument requires no more to be
said: it surely does not require us to dwell on
such painful possibilities. Rather, let me hope
and pray, that not a single star in, the American
Constellation will ever suffer its lustre to be
diminished by hostility against the sentence of
a Court, which itself has adopted.
But, after all, although no mode of execution
should be invented, why shall not the Court
proceed to judgment? It is well known, that
the Courts of some States have been directed to
render judgment, and there stop; and that the
Chancery has often tied up the hands of the
common law in a like manner. Perhaps, if a
Government could be constituted without ming-
ling at all the three orders of power, Courts
428*] should, in *strict theory, only declare
the law of the case, and the subject upon which
the execution is to be levied; and should leave
their opinions to be enforced by the executive.
But that any State should refuse to conform to
a solemn determination of the Supreme Court
of the Union, is impossible, until she shall
abandon her love of peace, fidelity to compact,
and character.
Combine then into one view, the letter and
the spirit of the Constitution; the relation of
the several States to the union of the States;
the precedents from other sovereignties; the
judicial act, and process act; the power of
forming executions; the little previous impor-
tance of this power to that of rendering of judg-
ment: the influence under which every State
must be to maintain the general harmony; and
the inference, will, I trust, be in favor of the
first proposition; namely, that a State may be
sued by the citizen of another State.
II. The next question is, whether an action
of assumpsit will lie against a State? I acknowl-
edge, that it does not follow from a State being
suable in some actions, that she is liable in every
action. But that of assumpsit is of all others
most free from cavil. Is not a State capable of
making a promise? Certainly; as a Stare is a
moral person, being an assemblage of individu-
als, who are moral persons. Vat. B. 1 s. 2. On
this ground, treaties, and other compacts, are
daily concluded between nations. On this
ground the United States and the particular
States have moved during and since the war.
On this ground the Constitution transmitted
from the old to the new Government all the
obligations of the former. Without it every
Government must stagnate. But I shall enter
into this matter no further, as it is open for
discussion in almost every stage of the cause.
III. I affirm in the third place, that the serv-
ice of the summons on the Governor and
Attorney-General, is a competent service. The
service of process is solely for the purpose of
notice to prepare for defence. The mode, if it
be not otherwise prescribed by law, or long
usage, is in the discretion of the Court; and
here that discretion must operate. The defence
must rest either upon the three branches of
Government collectively, or one of them. But,
as the judiciary are manifestly disjoined from
such an office, and the legislative are only to
provide funds to answer damages, the practice
of considering the Executive, as the ostensible
representative of a State, devolves upon it this
function. In the instance of Georgia, her Con-
stitution establishes the Governor as the channel
of communication with the Legislature; he is
bound by oath to defend her; and he has insti-
tuted a suit, now depending in this Court, in
her behalf, against Brailsford, and others. It
was supererogation to serve *the process [*429
on the Attorney-General; although this has
satisfied even etiquette itself, by notifying the
officer, who is the instrument of defence.
IV. As to the steps, proper for compelling
an appearance; these too, not being dictated by
law, are in the breast of the Court. I banish
the comparison of States with corporations;
and, therefore, search for no resemblance in
them. I prefer the scheme contained in the
motion; because it tempers with moderation the
preliminary measures; and postpones embar-
rassments, at any rate, until the close of the
business. It is unnecessary to spend time on
this head; as the mode is to me absolutely in-
different if it be effectual, and respectful
With this discussion, though purely legal, it
will be impossible to prevent the world from
blending political considerations. Some may
call this an attempt to consolidate. But before
such an imputation shall be pronounced, let
them examine well, if the fair interpretation of
the Constitution does not vindicate my opin-
ions. Above all, let me personally assure them,
that the prostration of State-rights is no object
with me; but that I remain imperfect confi-
dence, that with the power, which the people
and the Legislatures of the States indirectly
hold over almost every movement of the Na-
tional Government, the States need not fear an
assault from bold ambition, or any approaches
of covered stratagem.
The Court held the case under advisement,
from the 5th to the 18th of February, when they
delivered their opinion seriatim.
IREDELL, Justice. This great cause comes
efore the Court, on a motion made by the At-
torney-General, that an order be made by this
Court to the following effect:--" That, unless-
"the State of Georgia shall, after reasonable
"notice of this motion, cause an appearance to
"be entered on behalf of the said State, on the
"fourth day of next Term, or shew cause to
"the contrary, judgment shall be entered for
"the Plaintiff, and a writ of enquiry shall be
"awarded." Before such an order be made, it
is proper that this Court should be satisfied it
hath cognizance of the suit; for, to be sure we
ought not to enter a conditional judgment
(which this would be) in a case where we were
not fully persuaded we had authority to do so.
This is the first instance wherein the impor-
tant question involved in this cause has come
regularly before the Court. In the Maryland
case it did not, because the Attorney-General of
the State voluntarily appeared. We could not,
therefore, without the greatest impropriety,
have taken up the question suddenly. That
case has since been compromised: But, had it
proceeded to trial, and a verdict been given for
the Plantiff, it would have been our duty, pre-
vions to our giving judgment, to have well
430*] *considered whether we were warranted
in giving it. I had then great doubts upon my
mind, and should in such a case, have proposed
a discussion of the subject. Those doubts have
increased since, and, after the fullest considera-
tion, I have been able to bestow on the subject,
and the most respectful attention to the able ar-
gument of the Attorney-General, I am now
decidedly of opinion that no such actions as this
before the Court can legally be maintained.
The action is an action of assumpsit. The
particular question then before the Court, is,
will an action of assumpsit lie against a State?
This particular question (abstracted from the
general one, viz. Whether, a State can in any
instance be sued?) I took the liberty to propose
to the consideration of the Attorney-General,
last Term. I did so, because I have often found
a great deal of confusion to arise from taking
too large a view at once, and I had found my-
self embarrassed on this very subject, until I
considered the abstract question itself. The
Attorney-General has spoken to it, in deference
to my request, as he has been pleased to inti-
mate but he spoke to this particular question
slightiy, conceiving it to be involved in the gen-
eral one; and after establishing, as he thought,
that point, he seemed to consider the other fol-
lowed of course. He expressed, indeed, some
doubt how to prove what appeared so plain. It
seemed to him (if I recollect right) to depend
principally on the solution of this simple ques-
tion; can a State assume? But the Attorney-
General must know, that in England, certain
judicial proceedings not inconsistent with tile
sovereignty, may take place against the Crown,
but that an action of assumpsit will not lie. Yet
rarely the King can assume as well as a State.
So can the United States themselves, as well as,
any State in the Union: Yet, the Attorney-
General himself has taken some pains to shew,
that no action whatever is maintainable against
the United States. I shall, therefore, confine
myself, as much as possible, to the particular
question before the Court, though every thing
l have to say upon it will effect every kind of
suit, the object of which is to compel the pay-
ment of money by a State.
The question, as. I before observed, is,--will
an action of assumpsit lie against a State? If it
will, it must be in virtue of the Constitution of
the United States, and of some law of Congress
conformable thereto. The part of the Consti-
tution concerning the Judicial Power, is as fol-
lows, viz: Art. 3. sect. 2. The Judicial Power
shall extend, (1.) To all cases, in law and equity,
arising under the Constitution, the laws of the
United States, and treaties made, or which shall
be made, under their authority. (2.) To all
cases affecting Ambassadors, or other public
Ministers, and Consuls; (3.) To all cases of
Admiralty and Maritime Jurisdiction; (4.) To
431*] controversies to which the *United
States shall be a party; (5.) To controversies
between two or more States; between a State
and citizens of another State; between citizens
of different States; between citizens of the
same State, claiming lands under grants of dif-
ferent States; and, between a State or the
citizens thereof and foreign States, citizens or
subjects. The Constitution, therefore, provides
for the Jurisdiction wherein a State is a party,
in the following instances:--1st. Controversies
between two or more States. 2d. Controversies
between a State and-citizens of anOther State.
3d. Controversies between a State, and foreign
States, citizens, or subjects. And it also pro-
vides, that in all cases m which a State shall be
a party, the Supreme Court shall have original
jurisdiction.
The words of the general judicial act, con-
veying the authority of the Supreme Court,
under the Constitution, so far as they concern
this question, are as follow:--Sect. 13. "That
the Supreme Court shall have exclusive juris-
diction of all controversies of a civil nature,
where a State is a party, except between a State
and its citizens; and except also, between a
State and citizens of other States, or aliens, in
which latter case it shall have original, but not
exclusive jurisdiction. And shall have, exclu-
sively, all Jurisdiction of suits or proceed-
ings against Ambassadors, or other public
Ministers, or their domestics, or domestic
servants, as a court of law can have or exercise
consistently with the law of nations; and orig-
inal, but not exclusive jurisdiction of all suits
brought by Ambassadors. or other public Min-
isters, or m which a Consul, or Vice-Consul,
shall be a party."
The Supreme Court hath, therefore, FIRST.
Exclusive jurisdiction in every controversy of a
civil nature: 1st. Between two or more States.
2d. Between a State and a foreign State. 3d.
Where a suit or proceeding is depending against
Ambassadors, other public ministers, or their
domestics, or domestic servants. SECOND. Orig-
inal, but not exclusive jurisdiction. 1st. between
a State and citizens of other States. 2d. Between
a State and foreign citizens or subjects. 3d.
Where a suit is brought by Ambassadors, or
other public ministers. 4th. Where a consul
or vice-consul, is a party. The suit now before
the Court (if maintainable at all) comes within
the latter description, it being a suit against a
State by a citizen of another State.
The Constitution is particular in expressing
the parties who may be the objects of the juns-
diction in any of these cases, but in respect to
the subject-matter upon which such jurisdic-
tion is to be exercised, uses the word "contro-
versies" only. The act of Congress more par-
ticularly mentions civil controversies, a qualift-
cation of the general word in the Constitution,
which I do not doubt every reasonable man will
think well warranted, for *it cannot be [*432
presumed that the general word "controver-
sies" was intended to include any proceedings
that relate to criminal cases, which in all instan-
ces that respect the same Government, only, are
uniformly considered of a local nature, and to
be decided by, its particular laws. The word
"controversy indeed, would not naturally jus-
tify any such construction, but nevertheless
it was perhaps a proper instance of caution in
Congress to guard against the possibility of it.
A general question of great importance here
occurs. What controversy of a civil nature
can be maintained against a State by an indi-
vidual? The framers of the Constitution, I
presume, must have meant one of two things:
Either 1. In the conveyance of that part of the
judicial power which did not relate to the ex-
ecution of the other authorities of the general
Government (which it must be admitted are
full and discretionary, within the restrictions
of the Constitution itself), to refer to anteced-
ent laws for the construction of the general
words they use: Or, 2. To enable Congress in
all such cases to pass all such laws, as they
might deem necessary and proper to carry the
purposes of this Constitution into full effect,
either absolutely at their discretion, or at least
in cases where prior laws were deficient for
such purposes, if any such deficiency existed.
The Attorney-General has indeed suggested
another construction, a construction, I confess,
that I never heard of before, nor can I now con-
siderit grounded on any solid foundation, though
it appeared to me to be the basis of the Attorney-
General's argument. His construction I take
to be this:--"That the moment a Supreme
Court is formed, it is to exercise all the judicial
power vested in it by the constitution, by its
own authority, whether the Legislature has
prescribed methods of doing so, or not." My
conception of the Constitution is entirely dif-
ferent. I conceive, that all the Courts of the
United Starts must receive, not merely their
organization as to the number of Judges of
which they are to consist; but all their author-
ity, as to the manner of their proceeding, from
the Legislature only. This appears to me to
be one of those cases, with many others, in
which an article of the Constitution cannot be
effectuated without the intervention of the
Legislative authority. There being many such,
at the end of the special ,enumeration of the
powers of Congress in the Constitution, is this
general one: "To make all laws which shall be
necessary and proper for carrying into execu-
tion the foregoing Powers, and all uther powers
vested by this Constitution in the Government
of the United States, or in any department or
officer thereof." None will deny, that an act
of Legislation is necessary to say, at least of
what number the Judges are to consist; the
President with the consent of the Senate could
433*] not nominate a number at their *discre-
tion. The Constitution intended this article so
far at least to be the subject of a Legislative
act. Having a right thus to establish the
Court, and it being capable of being established
in no other manner, I conceive it necessarily
follows, that they are also to direct the manner
of its proceedings. Upon this authority, there
is, that I know, but one limit; that is, "that
they shall not exceed their authority." If they
do, I have no hesitation to say, that any act to
that effect would be utterly void, because it
would be inconsistent with the Constitution,
which is a fundamental law paramount to all
others, which we are not only bound to consult,
but sworn to observe; and, therefore, where
there is an interference, being superior in obli-
gation to the other, we must unquestionably
obey that in preference. Subject to this re-
striction, the whole business of organizing the
Courts, and directing the methods of their pro-
ceeding where necessary, I conceive to be in the
discretion of Congress. If it shall be found on
this occasion, or on any other, that the reme-
dies now in being are defective, for any pur-
pose it is their duty to provide for, they no
doubt Will provide others. It is their duty to
legislate so far as is necessary to carry the Con-
stitution into effect. It is ours only to judge.
We have no reason, nor any more right to dis-
trust their doing their duty, than they have to
distrust that we all do ours. There is no part
of the Constitution that I know of that author-
izes this Court to take up any business where
they left it, and in order that the powers given
in the Constitution may be in full activity, sup-
ply their omission by making new laws for new
cases; or, which I take to be the same thing,
applying old principles to new cases materiaIly
different from those to which they were applied
before.
With regard to the Attorney-General's doc-
trine of incidents, that was founded entirely on
the supposition of the other I have been con-
sidering. The authority contended for is cer-
tainly not one of those necessarily incident to
all Courts merely as such.
If therefore, this Court is to be (as I consider
it) the organ of the Constitution and the law, not
of the Constitution only, in respect to the man-
ner of its proceeding, we must receive our di-
rections from the Legislature in this particular,
and have no right to constitute ourselves an
officina brerium, or take any other short method
of doing what the Constitution has chosen (and,
in my opinion, with the most perfect propriety)
should be done in another manner.
But the act of Congress has not been alto-
gether silent upon this subject. The 14th sect.
of the judicial act, provides in the following
words: "All the before mentioned Courts of
the United States shall have power to issue writs
of scire facias, habeas corpus, and all other
writs not specially provided for by statute,
which maybe necessary for the exercise of their
respective *jurisdictions and agreeable [*434
to the principles and usages of law." These
words refer as well to the Supreme Court as to
the other Courts of the United States. What-
ever writs we issue, that are necessary for the
exercise of our jurisdiction, must be agreeable to
the principles and usages of law. This is a di-
rection, I apprehend, we cannot supercede, be-
cause it may appear to us not sufficiently exten-
sive. If it be not, we must wait till other
remedies are provided by the same authority.
From this it is plain that the Legislature did
not choose to leave to our own discretion the
path to justice, but has prescribed one of its
own. In doing so, it has, I think, wisely, re-
ferred us to principles and usages of law already
well known. and by their precision calculated
to guard against that innovating spirit of Courts
of Justice, which the Attorney-General in an-
other case reprobated with so much warmth,
and with whose sentiments in that particular, I
most cordially join. The principles of law to
which reference is to be had, either upon the
general ground I first alluded to, or upon the
special words I have above cited, from the ju-
dicial act, I apprehend, can be either 1st.
Those of the particular laws of the State.
against which the suit is brought. Or, 2d.
Principles of law common to all the States. I
omit any consideration arising from the word
"usages" tho' a still stronger expression. In
regard to the principles of the particular laws
of the State of Georgia if they in any manner
differed so as to effect this question, from the
principles of law, common to all the States, it
might be material to enquire, whether, there
would be any propriety or congruity in lay-
ing down a rule of decision which would
induce this consequence, that an action would
lie in the Supreme Court against some States,
whose laws admitted of a compulsory remedy
against their own Governments, but not against
others, whereto no such remedy was admitted,
or which would require, perhaps, if the princi-
ple was received, fifteen different methods of
proceeding against States, all standing in the
same political relation to the general Govern-
ment, and none having any pretence to a dis-
tinction m its favor, or justly liable to any
distinction to its prejudice. If any such differ-
ence existed m the laws of the different States,
there would seem to be a propriety, in order to
induce uniformity, (if a Constitutional power
for that purpose exists), that Congress should
prescribe a rule, fitted to this new case, to
which no equal, uniform, and impartial mode
of proceeding could otherwise be applied.
But this point, I conceive, it is unnecessary
to determine, because I believe there is no doubt
that neither in the State now in question, nor
in any other in the Union, any particular Legis-
lative mode, authorizing a compulsory suit for
the recovery of money against a State, was in
435*] being either when tile *Constitution
was adopted, or at the time the judicial act was
passed. Since that time an act of Assembly
for such a purpose has been passed in Georgia.
But that surely could have no influence in the
construction of an act of the Legislature of the
United States passed before.
The only principles of law, then, that can be
regarded, are those common to all the States.
I know of none such, which can affect this
case, but those that are derived from what is
properIy termed "the common law," a law
which l presume is the ground-work of the
laws in every State in the Union, and which I
consider, so far as it is applicable to the peculiar
circumstances of the country, and where no
special act of Legislation controuls it, to be in
force in each State, as it existed in England,
(unaltered by any statute) at the time of the first
settlement of the country. The statutes of Eng-
land that are in force in America differ perhaps
in all the States; and, therefore, it is probable
the common law in each, is in some respects
different. But it is certain that in regard to any
common law principle which can influence the
question before us no alteration has been made
by any statute which could occasion the least
material difference, or have any partial effect.
No other part of the common law of England,
it appears to me, can have any reference to this
subject, but that part of it which prescribes
remedies against the crown. Every State in the
Union in every instance where its sovereignty
has not been delegated to the United States. I con-
sider to be as completely sovereign, as the United
States are in respect to the powers surrendered.
The United Stales are sovereign as to all the
powers of Government actually surrendered:
Each State in the Union is sovereign as to all the
powers reserved. It must necessarily be so, be-
cause the United States have no claim to any
authority but such as the States have surren-
dered to them: Of course the part not surren-
dered must remain as it did before. The pow-
ers of the general Government, either of a
Legislative or Executive nature; or which par-
ticularly concerns Treaties with Foreign Pow-
ers, do for the most part (if not wholly) affect
individuals, and not States: They require no aid
from any State authority. This is the great
leading distinction between the old articles of
confederation, and the present constitution. The
Judicial power is of a peculiar kind. It is in-
deed commensurate with the ordinary Legisla-
tire and Executive powers of the general gov-
ernment, and the Power which concerns trea-
ties. But it also goes further. Where certain
parties are concerned, although the subject in
controversy does not relate to any of the special
objects of authority of the general Government,
wherein the separate sovereignties of the States
are blended in one common mass of supremacy,
yet the general Government has a Judicial Au-
thority in regard to such *subjects of [*436
controversy, and the Legislature of the United
States may pass all laws necessary to give such
Judicial Authority its proper effect. So far as
States under the Constitution can be made Ie-
gally liable to this authority, so far to be sure
they are subordinate to the authority of the
United States, and their individual sovereignty
is in this respect limited. But it is limited no
farther than the necessary execution of such
authority requires. The authority extends only
to the decision of controversies in which a State
is a party, and providing laws necessary for
that purpose. That surely can refer only to
such controversies in which a State can be a
party; in respect to which, if any question
arises, it can be determined, according to the
principles I have supported, in no other manner
than by a reference either to pre-existent laws,
or taws passed under the Constitution and in
conformity to it.
Whatever be the true construction of the Con-
stitution in this particular; whether it is to be
construed as intending merely a transfer of
jurisdiction from one tribunal to another, or as
authorizing the Legislature to provide laws for
the decision of all possible controversies in
which a State may be involved with an indi-
vidual, without regard to any prior exemption;
yet it is certain that the Legislature has in fact
proceeded upon the former supposition. and not
upon the latter. For, besides what I noticed
before as to an express reference to principles
and usages of law as the guide of our proceed-
ing, it is observable that in instances like this
before the Court, this Court hath a concurrent
jurisdiction only; the present being one of those
cases where by the judicial act this Court hath
original but not exclusive jurisdiction. This
Court, therefore, under that act, can exercise no
authority in such instances, but such authority
as from the subject matter of it may be exer-
cised in some other Court. --There are no Courts
with which such a concurrence can be sug-
gested but the Circuit Courts, or Courts of the
different States. With the former it cannot be,
for admitting that the Constitution is not to
have a restrictive operation, so as to confine all
cases in which a State is a party exclusively to
the Supreme Court (an opinion to which I am
strongly inclined), yet there are no words in the
definition of the powers of the Circuit Court
which give a colour to an opinion, that where a
suit is brought against a State by a citizen of
another State, the Circuit Court could exercise
any jurisdiction at all. If they could, how-
ever, such a jurisdiction, by the very terms of
their authority, could be only concurrent
with the Courts of the several States. It fol-
lows, therefore, unquestionably, I think, that
looking at the act of Congress, which I con-
sider is on this occasion the limit of our au-
thority (whatever further might be constitution-
aly, enacted) we can exercise no authority in
437*] the present instance *consistently with
the clear intention of the act, but such as a
proper State Court would have been at least
competent to exercise at the time the act was passed
If therefore, no new remedy be provided (as
plainly is the case, and consequently we have
no other rule to govern us but the principles of
the pre-existent laws, which must remain in
force till superceded by others, then it is incum-
bent upon us to enquire, whether previous to
the adoption of the Constitution, (which period,
or the period of passing the law, in respect to
the object of this enquiry, is perfectly equal) an
action of the nature like this before the Court
could have been maintained against one of the
States in the Union upon the principles of the
common law, which I have shewn to be alone
applicable. If it could, I think it is now main-
tainable here: If it could not, I think, as the
law stands at present, it is not maintainable;
whatever opinion may be entertained, upon the
construction of the Constitution, as to the
power of Congress to authorize such a one. Now
l presume it will not be denied, that in every
State in the Union, previous to the adoption of
the Constitution, the only common law princi-
ples in reguard to suits that were in any manner
admissible in respect to claims against the
State. were those which in England apply to
claims against the crown; there being certainly
no other principles of the common law which,
previous to the adoption of this Constitution
could, in any manner, or upon any colour, ap-
ply to the case of a claim against a State in its
own Courts. where it was solely and completely
sovereign in respect to such cases at least.
whether that remedy was strictly applicable
or not, still I apprehend there was no other.
The only remedy in a case like that before
the Court, by which, by any possibility, a suit
can be maintained against the crown in Eng-
land, or could be at any period from which the
common law, as in force in America, could be de-
rived, I believe is that which is called a Petition
of right. It is stated, indeed, in Com. Dig. 105.
That "until the time of Edward 1. the King
might have been sued in all actions as a com-
mon person." And some authorities are cited
for that position, though it is even there stated
as a doubt. But the same authority adds--" but
now none can have an action against the King,
but one shall be put to sue to him by peti-
tion." This appears to be a quotation or ab-
stract from TheloaIl's Digest, which is also one
of the authorities quoted in the former case.
And this book appears (from the law catalogue)
to have been printed so long ago as the year
1579. The same doctrine appears (according
to a quotation in Blackstone's Commentaries? 1
Vol. 243) to be stated in Finch's Law 253, the
first edition of which, it seems, was published
in 1579. This also more fully appears in the
case of the Bankers, and particularly from the
438*] celebrated argument of *Lord Somers,
in the time of W. III. for, though that case
was ultimately decided against Lord Somers's
opinion, yet the ground on which the decision
was given no way invalidates the reasoning of
that argument, so far as it respects the simple
case of a sum of money demandable from the
King, and not by him secured on any particular
revenues. The case is reported in Freeman,
Vol. 1. p. 331. 5 Mod. 29. Skinn. 601. and
lately very elaborately in a small pamphlet pub-
lished by Mr. Hargrave, which contains all the
reports at length, except Skinner's, together
with the argument at large of Lord. Somers;
besides some additional matter.
The substance of the case was as follows:--
King Charles II. having received large sums of
money from bankers, on the credit of the grow-
ing produce of the revenue, for the payment of
which, tallies and orders of the Exchequer were
given (afterwards made transferable by statute)
and the payment of these having been afterward
postponed, the King at length. in order to re-
lieve the Bankers, in 1677, granted annuities
to them out of the hereditary Excise, equal to
6 per cent interest on their several debts, but
redeemable on payment of the principal. This
interest was paid till 1683, but it then became
in arrear, and continued so at the Revolution;
and the suits which were commenced to enforce
the payment of these arrears, were the subject
of this case. The Bankers presented a petition
to the Barons of the Exchequer, for the pay-
ment of the arrears of the annuities granted; to
which petition the Attorney General demurred.
Two points were made: First, whether the
grant out of the Excise was good; second, wheth-
er a petition to the Barons of the Exchequer was
a proper remedy. On the first point the whole
Court agreed, that in general the King could
alienate the revenues of the crown; but Mr. Bar-
on Leckmere differed from the other Barons, by
thinking that this particular revenue of the Ex-
cise, was an exception to the general rule. But
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 Gen-
eral in the Exchequer-Chamber. There all the
judges who argued held the grant out of the
Excise good. A majority of them, including
Lord Chief Justice Holt, also approved of the
remedy by petition to the Barons. But, Lord
Chief Justice Treby was of opinion, that the Bar-
ons of the Exchequer were not authorized to
make order for payments on the receipt of the
Exchequer, and, therefore, that the remedy by
petition to the Barons was inapplicable. In this
opinion Lord Somers concurred. A doubt then
arose, whether the Lord Chancellor and Lord
High Treasurer were at liberty to give judgment
according to their own *opinion. in op- [*439
position to that of a majority of the attendant
Judges; in other words, whether the Judges
called by the Lord Chancellor and Lord High
Treasurer were to be considered as mere assist-
ants to them without voices. The opinion of
the Judges being taken on this point, seven
against three held, that the Lord Chancellor and
Lord Treasurer were not concluded by the opin-
ions of the Judges, and therefore that the Lord
Keeper in the case in question, there being then
no Lord Treasurer might give judgment accord-
ing to his own opinion. Lord Somers concur-
ring in this idea, reversed the judgment of the
Court of Exchequer. But the case was after-
wards carried by error into Parliament, and
there the Lords reversed the judgment of the
Exchequer-Chamber, and affirmed that of the
Exchequer. However, notwithstanding this
final decision in favour of the Bankers and their
creditors, it appears by a subsequent Statute,
that they were to receive only one half of their
debts; the 12 and 14 W. 3. after appropriating
certain sums out of the hereditary Excise for
public uses, providing, that in lieu of the annui-
ties granted to the Bankers and all arrears, the
hereditary Excise should, after the 26th of De-
cember, 1601, lye charged with annual sums equal
to an interest of three per cent, till redeemed by
payment of one moiety of the principal sums.
Hargrave's case of the Bankers, 1, 2, 8.
Upon perusing the whole of this case, these
inferences naturally follow:--1st. That admit-
ting the authority of that decision in its fullest
extent, yet it is an authority only in respect to
such cases, where letters patent from the crown
have been granted for the payment of certain
sums out of a particular revenue. 2d. That
such relief was grantable in the Exchequer.
upon no other principle than that that Court
had a right to direct the issues of the Exchequer
as well after the money was deposited there as
while (in the Exchequer language) it was in
transitu. 3d. That such an authority could not
have been exercised by any other Court in West-
minster-Hall, or by any Court that from its par-
ticular constitution had no controul over the
revenues of the Kingdom. Lord C. J. Holt, and
Lord Somers (though they differed in the main
point) both agreed in that case, that the Court
of King's bench could not send a writ to the
Treasury. Hargrace's case, 45, 89. Consequent-
ly, no such remedy could, under any circum-
stances, I apprehend, be allowed in any of the
American States, in none of which it is pre-
sumed any Court of Justice hath any express
authority over the revenues of the State such as
has been attributed to the Court of Exchequer
in England.
The observations of Lord Somers, concerning
the general remedy by petition to the King,
have been extracted and referred to by some of
the ablest law characters since; particularly
440*] by *Lord C. Baron Comyns in his di-
gest. I shall, therefore, extract some of them,
as he appears to have taken uncommon pains
to collect all the material learning on the subject;
and indeed is said to have expended several hun-
dred pounds in the procuring of records relative
to that case. Hargrave's preface to the case of
the Bankers.
After citing many authorities, Lord Somers
proceeds thus:--"By all these authorities, and
by many others, which I could cite, both an-
cient and modern, it is plain, that if the subject
was 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 issuing out of
lands, which by subsequent title came to be in the
King's hands; m all cases the remedy to come at
it was by petition to the person of the King:
and no other method can be shewn to have been
practiced at common law. Indeed I take it to
be generally true, that in all cases where the
subject is in the nature of a Plaintiff, to recover
anything from the King, his only remedy, at
common law, is to sue by Petition to the person
of the King. I say, where the subject comes as,
a Plaintiff. For, as I said before, when, upon
a title found for the King by office, the subject
comes in to traverse the King's title, of to shew
his own right, he ,comes in the nature of a De-
fendant; and is admitted to interplead in the
case with the King in defence of his title, which
otherwise would be defeated by finding the of
fice. And to shew that this was so, I would
take notice of several instances. That, in cases
of debts owing by the crown, the subject's rem-
edy was by Petition, appears by Aynesham's
case, Ryley, 251. which is a petition for œ19
due for work done at Carnalvon castle. So Ry-
ley 251. The executors of John Estrateling pe-
tition for œ182. due to the testator for wages.
The answer is remarkable; for there is a latitude
taken, which will very well agree with the no-
tion that is taken up in this case: Habeant bre.
de liberate in Canc. thes. & camerar. de œ32. in
partem solutionis. So the case of Yetward de
Galeys, for œ56. Ryley 414. In like manner in
the same book 253. 33. Ed. I. several parties
sue by petition for money and goods taken for
the King's use; and also for wages due to them;
and for debts owing to them by the King. The
answer is, Rex ordinavit per concilium thesaura-
rii & baronum de scaccario, quod satisfiet iis quam
citius fieri poterit; ita quod contertos se tenebunt.
And this is an answer given to a petition present-
ed to the King in Parliament; and therefore we
have reason to conclude it to be warranted by law.
They mast be content. and they shall be paid,
quam citius fieri poterit. The parties, in these
cases, first go to the King by petition: it is by
him they are sent to the Exchequer; and it is by
writ under the great seal, that the Exchequer is
empowered to act. Nor can *any such [*441
writ be found (unless in a very few instances,
where it is mere matter of account) in which
the Treasurer is not joined with the Barons. So
far was it from being taken to be law at that
time. that the Barons had any original power of
paying the King's debts; or of commanding an-
nuities, granted by the King or his progenitors,
to be paid, when the person applied to them for
such payment. But perhaps it may be object-
ed, that it is not to be inferred, because petitions
were brought in these cases, that therefore it was
of necessity that the subject should pursue that
course, and could take no other way. It might
be reasonable to require from those who object
thus, that they should produce some precedents
at least, of another remedy taken. But I think
there is a good answer to be given to this objec-
tion. All these petitions which I have mention-
ed, are after the Stat. 8 Ed. I. Ryley 442, where
notice is taken that the business of Parliament is
interrupted by a multitude of petitions which
might be redressed by the Chancellor and Justices.
Wherefore it is thereby enacted, that petitions
which touch the seal shall come first to the Chan-
cellor; those which touch the Exchequer, to the
Etchequer; and those which touch the Justices, or
the law of the land, should come to the Justies;
and if the business be so great, or si de grace that
the Chancellor, or others, cannot do them wighout
the King, then the petitions shall be brought before
the King to know his pleasure: so thay no peti-
tions come before the King and his Council, but
by the hands of the Chancellor, and other chief
Ministers; that the King and his Councu may at-
tend the great affairs of the King's Realm, and
his sovereign dominions." This law being made,
there is reason to conclude that all petitions
brought before King or Parliament after
this time, and answered there, were brought ac-
cording to the method of this law; and were of
the nature of such petitions as ought to be
brought before the person of the King. And
that petitions did lie for a chattel, as well as for
a freehold, does appear 37 Ass. pl. ii. Bro. Pet.
17. If tenant by the statute merchant be oust-
ed, he may have petition, and shall be restored.
Vide 9 H. 4. 4. Bro. Pet. 9. 9. H. 6.21. Bro. Pet.
2. If the subject be ousted of his term, he shall
have his petition. 7. H. 7. ii. Of a chattel
real a man shall have his petition of right, as of
his freehold. 34. H. 6. 51. Bro. Pet. 3. A man
shall have a petition of right for goods and chat-
tels, and the King indorses it in the usual form.
It is said indeed. 1 H. 7. 3. Bro. Pet. 19. that a
petition will not lie of a chattel. And, admit-
ting there was any doubt as to that point, in the
present suit we are in the case of a freehold."
Lord Somers's argument in Hargrave's case of
the Bankers, 103 to 105.
The solitary case, noticed at the conclusion of
Lord Somers's argument, "that a petition will
442*] not lie of a chattel," certainly *is de-
serving of no consideration, opposed to so many
other instances mentioned, and unrecognized
(as I believe it is) by any other authority either
ancient or modern, whereas the contrary, it
appears to me, has long been received and es-
tablished law. In Comyns's Diq. 4 Vol. 458, it
is said expressly "suit shall be to the King by
petition, for goods as well as for land." He
cites Staunds. Praer. 75. b. 72. b. for his author-
ity, and takes no notice of any authority to the
contrary. The same doctrine is also laid down
with equal explicitness, and without noticing
any distinction whatever, in Blackstone's Com-
mentaries, 3 Vol. 256. where be points out the
petition of right as one of the common law
methods of obtaining possession or restitution
from the crown, either of real or personal prop-
erty; and says expressly the petition of right
"is of use where the King is in full possession
of any hereditaments or chattels, and the peti-
tioner suggests such a right as controverts the
title of the crown, grounded on facts disclosed
In the petition itself."
I leave out of the argument, from which I
have made so long a quotation, every thing con-
cerning the restriction on the Exchequer, so far
as it concerned the case then before the Court,
as Lord Somers (although more perhaps by
weight of authority than reasoning) was over-
ruled in that particular. As to all others I con-
sider the authorities on which he relied, and
his deduction from them, to be unimpeached.
Blackstone, in the first volume of his com-
mentaries (p. 203), speaking of demands in
point of property, upon the King, states the
general remedy thus:--" If any person has, in
point of property, a just demand upon the
King, he must petition him in his Court of
Chancery, where his Chancellor will adminis-
ter right, as a matter of grace, though not upon
compulsion. (For which he cites Finch L.
255.) And this is exactly consonant to what
is laid down by the writers on natural law.--A
subject, say Puffendorf, so long as he contin-
ues a subject, hath no way to oblige his Prince
to give him his due when he refuses it; though
no wise Prince will ever refuse to stand to a
lawful contract. And if the Prince gives the
subject leave to enter an action against him up-
on such contract, in his own Courts, the action
itself proceeds rather upon natural equity, than
upon the municipal laws. For the end of such
action is not to compel the Prince to observe the
contract, but to persuade him."
It appears, that when a petition to the person
of the King is properly presented, the usual
way is for the King to indorse or underwrite,
soit droit fait al partie, (let right be done to the
party); upon which, unless the Attorney-Gen-
eral confesses the suggestion, a commission is
issued to enquire into the truth of it: after the
return of which, the King's attorney is at lib-
erty to *plead in bar, and the merits shall [*443
be determined upon issue or demurrer, as in
suits between subject and subject. If the At-
tomey-General confesses the suggestion there is
no occasion for a commission, his admission of
the truth of the facts being equally conclusive
as if they had been found by a jury.--See 3
Blackstone's Commentaris 256. and 4 Com. Dig.
458. and the authorities there cited. Though
the above mentioned indorsement be the usual
one, Lord Somers, in the course of his volumi-
nous search, discovered a variety of other
answers to what he considered were unques-
tionable petitions of right; in respect to which
he observes: "The truth is, the manner of
answering petitions to the person of the King
was very various; which variety did sometimes
arise from the conclusion of the party's peti-
tion; sometimes from the nature of tim thing;
and sometimes from favour to the person; and
according as the indorsement was, the party
was sent into Chancery, or the other Courts. If
the indorsement was general, soit droit tait al
partie, it must be delivered to the Chancellor of
England, and then a commission was to go to
find the right of tim party: and that being
found, so that there was a record for him, thus
warranted, he is let in to interplead with the
King: but if tim indorsement was special, then
the proceeding was to be according to the in-
dorsement in any other Court. This is fully
explained by Stamford (Staundfort) in his
treatise of the Prerog. e,. 22. The case Mich.
10 H. 4. 4. no. 8. is full as to this matter. The
King recovers in a Quare impedit by defaultl
against one who was never summoned; the par-
ty cannot have a ,writ of deceit without a peti-
tion. If then, says the book, he concludes his
petition generalIy "que le Roy lui face droit"
(that the King will cause right to be done) and
the answer be general, it must go into the
Chancery, that the right may be inquired of by
commission; and, upon the inquest found, an
original writ must be directed to the Justices to
examine the deceit; otherwise, the Justices, be-
fore whom the suit was, cannot meddle: But if
he conclude his petition especially, that it may
please his Highness to command his Justices to
proceed to the examination, and the indorsement
be accordingly, that had given the Justices a
jurisdiction. They might in such case have
proceeded upon the petition without any com-
mission, or any writ to be sued out; the peti-
tion and answer indorsed giving a sufficient
jurisdiction to the Court to which it was direct-
ed. And as the book I have mentioned proves
this, so many other authorities may be cited."
He accordingly mentions many other instances,
immaterial to be recited here, particularly re-
marking a very extraordinary difference in the
case belonging to the revenue, in regard to
which he said, he thought there was not an m-
stance to be found where petitions were
answered, soit droit fait aux parties (let right
444*] be done *to the parties): The usual refer-
ence appears to have been to the Treasurer and
Barons, commanding them to do justice; Some-
times a writ under the great seal was directed
to be issued to them for that purpose: Sometimes
a writ from the Chancery directing payment of
money immediately, without taking notice of
the Barons. And other varieties appear to have
taken place. See Hargrave's case of the Bank-
ers, p. 73, & seq. But in all cases of petition of
right, of whatever nature is the demand, I
think it is clear. beyond all doubt, that there
must be some indorsement or order of the King
himself to warrant any further proceedings.
The remedy, in the language of Blackstone, be-
ing a matter of grace, and not on compulsion.
In a very late case in England, this point was
incidentally discussed. The case I refer to, is
the case of Macheath against Haldimand, report-
ed 1st Darnford & East 172. The action was
against the Defendant, for goods furnished by
the Defendant's order in Canada, when the
Defendant was Governor of Quebec. The de-
fence was, that the Plaintiff was employed by
the Defendant in his official capacity, and not
upon his personal credit, and that the goods
being therefore furnished for the use of Govern-
ment, and the Defendant not having undertaken
personally to pay, he was not liable. This de-
fence wan set up at the trial on the plea of the gen-
eral issue, and the Jury, by Judge Buller's direc-
tion, found a verdict for the Defendant. Upon a
motion for a new trial he reported particularly
all the facts given in evidence, and said his opinion
had been at the trial that the Plaintiff should be
non-suited; "but the Plaintiff's counsel appear-
ing for their client, when he was called, he left
the question to the Jury, telling them that they
were bound to find for the Defendant in point
of law. And upon their asking him whether,
in the event of the Defendant not being liable,
any other person was, he told them, that was
no part of their consideration, but being willing
to give them any information, he added, that
he was of opinion, that if the Plaintiff's de-
mands were just, his proper remedy was by a
Petition of right to the crown. On which
they found a verdict for the Defendant. The
rule for granting a new trial was moved for, on
the misdirection of two points. 1st. That the
Defendant had by his own conduct made himself
liable, which question should have been left to
the Jury. 2dly. That the Plaintiff had no
remedy against the crown by a Petition of
right, on the supposition of which the Jury had
been induced to give their verdict." "Lord
Mansfield, Chief Justice, now declared, that the
Court did nat feel it necessary for them to give
any opinion on the second ground. His Lord-
ship said that great difference had arisen since
the revolution with respect to the expenditure
of the public money. Before that period, all
the public supplies were given to the King, who
445*] in* his individual capacity contracted for
all expenses. He alone had the disposition of the
public money. But since that time the supplies
had been appropriated by Parliament to partic-
ular purposes, and now, whoever advances.
money for the public service trusts to the faith
of Parliament. That according to the tenor of
Lord Somers's argument in the Bankers case.
though a Petition of right would lie, yet it
would probably produce no effect. No bene-
fit was ever derived from it in the Bankers
case; and Parliament was afterwards obliged to
provide a particular fund for the payment of
those debts. Whether, however, this alteration
in the mode of distributing the supplies had
made any difference in the law upon this sub-
ject, it was unnecessary to determine; at any
rate, if there were a recovery against the crown,
application must be made to Parliament, and it
would come under the head of supplies for the
year." The motion was afterwards argued on
the other ground (with which I have at present
nothing to do) and rejected.
In the old authorities there does not appear
any distinction between debts that might be
contracted personally by the King, for his own
private use, and such as he contracted in his po-
litical capacity for service of the kingdom. As
he had however then fixed and independent
revenues, upon which depended the ordinary
support of Government, as well as the expendi-
rare for his own private occasions, probably no
material distinction at that time existed, or
could easily be made. A very important dis-
tinction may however perhaps now subsist be-
tween the two cases, for the reasons intimated by
Lord Mansfield; since the whole support of Gov-
ernment depends now on Parliamcntary pro-
visions, and, except in the case of the civil list,
those for the most part annual.
Thus, It appears, that in England even in
case of a private debt contracted by the King, In
his own person, there is no remedy but by peti-
tion, which must receive his express sanction,
otherwise there can be no proceeding upon It.
If the debt contracted be avowedly for the
public uses of Government, it is at least doubt-
ful whether that remedy will lie, and if it will,
it remains afterwards m the power of Parlia-
ment to provide for it or not among the cur-
rent supplies of the year.
Now let us consider the case of a debt due
from a State. None can, I apprehend, be di-
rectly claimed but in the following instances.
1st. In case of a contract with the Legislature
itself. 2d. In case of a contract with the Ex-
ecutive, or any other person, in consequence of
an express authority from the Legislature. 3d.
In case of a contract with the Executive
without any special authority. In the first and
second cases, the contract is evidently made on
the public faith atone. Every man must know
that no suit can lie against a Legislative body.
His only *dependence therefore can be, [*446
that the Legislature on principles of public duty,
will make a provision for the execution of their
own contracts, and if that fails, whatever re-
proach the Legislature may incur, the case is
certainly without remedy in any of the Courts
of the State. It never was pretended, even in
the case of the crown in England, that if any
contract was made with Parliament, or with
the crown by virtue of an authority from Par-
liament, that a Petition to the crown would in
such case lie. In the third case, a contract with
the Governor of a State without any special
authority. This case is entirely different from
such a contract made with the crown in Eng-
land. The crown there has very high prerog-
atives, in many instances is a kind of trustee
for the public interest, in all cases represents
the sovereignty of the kingdom, and is the
only authority which can sue or be sued in any
manner on behalf of the kingdom in any Court
of Justice. A Governor of a State is a mere
Executive officer; his general authority very
narrowly limited by the Constitution of the
State; with no undefined or disputable preroga-
tives; without power to effect one shilling of
the public money, but as he is authorised under
the Constitution, or by a particular law; hav-
ing no colour to represent tim sovereignty of
the State, so as to bind it in any manner to its
prejudice. unless specially authorised thereto.
And therefore all who contract with him do it
at their own peril, and are bound to see (or take
the consequence of their own indiscretion) that
he has strict authority for any contract he
makes. Of course such contract when so au-
thorised will come within the description I
mentioned of cases where public faith alone is
the ground of relief, and the Legislative body
the only one that can afford a remedy, which
from the very nature of it must be the effect of
its discretion, and not of any compulsory process.
If however any such cases were similar to those
which would entitle a party to relief by petition
to the King in England, that Petition being
only presentable to him as he is the sovereign
of tim Kingdom, so far as analogy is to take
place, such Petition in a State could only be
presented to the sovereign power, which surely
the Governor is not. The only constituted
authority to which such an application could
with any propriety be made, must undoubtedly
be the Legislature, whose express consent, upon
the principle of analogy would be necessary to
any further proceeding. So that this brings
us (though by a different route) to the same
goal; The discretion and good faith of the Legis-
lative body.
There is no other part of the common law,
besides that which I have considered, which
can by any person be pretended in any manner
to apply to this case, but that which concerns
corporations. The applicability of this, the
Attorney-General, with great candour, has ex-
447*] pressly waved. But as it may be *urged
on other occasions, and as I wish to give the
fullest satisfaction, I will say a few words to
that doctrine. Suppose, therefore, it should be
objected, that the reasoning I have now used is
not conclusive, because, inasmuch as a State is
made subject to the judicial power of Congress,
its sovereignty must not stand in the way of the
proper exercise of that power, and, therefore, in
all such cases (though in no other) a State can
only be considered as a subordinate corporation
merely. I answer, 1st. That this construction
can only be allowed, at the utmost, upon the
supposition that the judicial authority of the
United States, as it respects States, cannot be
effectuated, without proceeding against them in
that light: a position I by no means admit. 2d.
That according to the principles I have sup-
ported in this argument, admitting that States
ought to be so considered for that purpose, an
act of the Legislature is necessary to give effect
to such a construction unless the old doctrine
concerning corporations will naturally apply to
this particular case. 3d. That as it is evident the
act of Congress has not made any special pro-
vision in this case, grounded on any such con-
struction. so it is to my mind perfectly clear
that we have no authority, upon any supposed
analogy between the two cases, to apply the
common doctrine concerning corporations, to
the important case now before the Court. I
take it for granted, that when any part of an
antient law is to be applied to a new case, the
circumstances of the new case must agree in all
essential points with the circumstances of the
old cases to which that antient law was formerly
appropriated. Now there are, in my opinion,
the most essential differences between the old
cases of corporations to which the law intimated
has reference, and the great and extraordinary
case of States separately possessing, as to every
thing simply relating to themselves, the fullest
powers of sovereignty, and yet in some other
defined particulars subject to a superior power
composed out of themselves for the common
welfare of the whole. The only law concerning
corporations, to which I conceive the least ref-
erence is to be had, is the common law of Eng-
land on that subject. I need not repeat the ob-
servations I made in respect to the operation of
that law in this country. The word "corpora-
tions," in its largest sense, has a more extensive
meaning than people generally are aware of.
Any bodly politic (sole or aggregate) whether its
power be restrictcd or transcendant, is in this
sense "a corporation." The King, accordingly,
in England is called a corporation. 10 Co. 29.
b. So also, by a very respectable author (Shep-
pard, in his abridgement, 1 Vol. 431.) is the
Parliament itself. In this extensive sense, not
only each State singly, but even the United
States may without impropriety be termed "cor-
porations." I have, therefore, in contradistinc-
tion to this large and indcfinite *term. [*448
used the term "subordinate corporations,"
meaning to refer to such only (as alone capable
of the slightest application, for the purpose of
the objection) whose creation and whose powers
are limited by law.
The differences between such corporations,
and the several States in the Union, as relative
to the general Government, are very obvious in
the following particulars. 1st. A corporation
is a mere creature of the King, or of Parlia-
ment; very rarely of the latter; most usually of
the former only. It owes its existence, its
name, and its laws. (except such laws as are nec-
essarily incident to all corporations merely as
such) to the authority which create it. A State
does not owe its origin to the Government of
the United States, in the highest or in any of its
branches. It was in existence before it. It de-
rives its authority from the same pure and
sacred source as itself: The voluntary and de-
liberate choice of the people. 2d. A corporation
can do no act but what is subject to the revision
either of a Court of Justice, or of some other
authority within the Government. A State is
altogether exempt from the jurisdiction of the
Courts of the United States, or from any other
exterior authority, unless in the special instan-
ces where the general Government has power
derived from the Constitution itself. 3d. A
corporation is altogether dependant on that
Government to which it owes its existence. Its
charter may be forfeited by abuse. Its author-
ity may be annihilated, without abuse, by an
act of the Legislative body. A State, though
subject in certain specified particulars to the
authority of the Government of the United
States, is in every other respect totally inde-
pendent upon it. The people of the State ere-
ated, the people.of the State can only change,
its Constitution. Upon this power there is no
other limitation but that imposed by the Consti-
tution of the United States; that it must be of
the Republican form. I omit minuter distinc-
tions. These are so palpable, that I never can
admit that a system of law calculated for one
of these cases is to be applied, as a matter of
course, to the other, without admitting (as I
conceive) that the distinct boundaries of law and
Legislation may be confounded, in a manner
that would make Courts arbitrary, and in effect
makers of a new law, instead of being (as cer-
tainly they alone ought to be) expositors of an
existing one. If still it should be insisted, that
though a State cannot be considered upon the
same footing as the municipal corporations I
have been considering, yet, as relative to the
powers of the General Government it must be
deemed in some measure dependent: admitting
that to be the case (which to be sure is, so far
as the necessary execution of the powers of the
General Government extends) yet in whatever
character this may place a State, this can only
449*] afford a reason for a new law, *calcu-
lated to effectuate thee powers of the General
Government in this new case: But it affords no
reason whatever for the Court admitting a new
action to fit a case, to which no old ones apply,
when the application of law, not the making of
it is the sole province of the Court.
I have now, I think. established the following
particulars.--1st. That the Constitution, so far
as it respects the judicial authority, can only be
carried into effect by acts of the Legislature ap-
pointing Courts, and prescribing their methods
of proceeding. 2d. That Congress has provided
no new law in regard to this case, but expressly
referred us to the old. 3d. That there are no
principles of the old law, to which we must
have recourse, that in any manner authorise the
present suit, either by precedent or by analogy.
The consequence of which, in my opinion,
clearly is, that the suit in question cannot be
maintained, nor, of course, the motion made
upon it he complied with.
From the manner in which I have viewed
this subject, so different from that in which it
has been contemplated by the Attorney General,
it is evident, that I have not had occasion to
notice many arguments offered by the Attorney
General, which certainly were very proper, as
to his extended view of the case, but do not
affect mine. No part of the Law of Nations
can apply to this case, as I apprehend, but that
part which Is termed "The Conventional Law
of Nations;" nor can this any otherwise apply
than as furnishing rules of interpretation, since
unquestionably the people of the United States
had a right to form what kind of union, and
upon what terms they pleased, without refer-
ence to any former examples. If upon a fair
construction of the Constitution of the United
States, the power contended for really exists, it
undoubtedly may be exercised, though it be a
power of the first impression. If it does not
exist, upon that authority, ten thousand ex-
amples of similar powers would not warrant its
assumption. So far as this great question affects
the Constitution itself, if the present afforded,
consistently with the particular grounds of my
opinion, a proper occasion for a decision upon
it, I would not shrink from its discussion. But
it is of extreme moment that no Judge should
rashly commit himself upon important ques-
tions, which it is unneccssary for him to decide.
My opinion being, that even if the Constitution
would admit of the exercise of such a power, a
new law is necessary for the purpose, since no
part of the existing law applies, this alone is
sufficient to justify my determination in the
present case. So much, however, has been said
on the Constitution, that it may not be im-
proper to intimate that my present opinion is
strongly against any construction of it, which
will admit, under any circumstances, a com-
pulsive suit against a State for the recovery of
money. I *think every word in the [*450
Constitution may have its full effect without
involving this consequence, and that nothing
but express words, or an insurmountable im-
plication (neither of which I consider, can be
found in this case) would authorise the dcduc-
tion of so high a power. This opinion I hold,
however, with all the reserve proper for one,
which, according to my sentiments in this case,
may be deemcd m some measure extra-judicial.
With regard to the policy of maintaining such
suits, that is not for this court to considcr,
unless the point in all other respects was very
doubtful. Policy might then be argued from
with a view to preponderate the judgment.
Upon the question before us, I have no doubt.
I have therefore nothing to do with the policy.
But I confess, if I was at liberty to speak on
that subject. my opinion on the policy of the
case would also differ from that of the Attorney
General. It is, however, a delicate topic. I
pray to God, that if the Attorney General's
doctrine, as to the law, be establishcd by the
judgment of this Court, all the good he pre-
dicts from it may take place, and none of the
evils with which, I have the concern to say, it
appears to me to be pregnant.
BLAIR. Justice. In considering this import-
ant case, I have thought it best to pass over all
the strictures which have been made on the
various European confederations; because, as,
on the one hand, their likeness to our own is
not sufficiently close to justify any analogical
application; so, on the other, they are utterly
destitute of any binding authority here. The
Constitution of the United States is the only
fountain from which I shall draw: the only
authority to which I shall 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 adop-
tion of it by the people of that State. What
then do we find there requiring the submission
of individual States to the judicial authority of
the United States? This is expressly extended,
among other things, to controversies between a
State and citizens of another State. Is then the
case before us one of that description? Un-
doubtedly it is, unless it may be a sufficient denial
to say, that it is a controversy between a citi-
zen of one State and another State. Can this
change of order be an essential change in the
thing intended? And is this alone a sufficient
ground from which to conclude, that the juris-
diction of this Court reaches the case where a
State is Plaintiff. but not where it is Defend-
ant? In this latter case, should any man be
asked, whether it was not a controversy be-
tween a State and citizen of another State. must
not the answer be in the affirmative? A dis-
pute between A. and B. is surely a dispute
between B. and A. Both cases, I have no
doubt. were intended; and probably the State
451*] was first named, *in respect to the
dignity of a State. But that very dignity seems
to have been thought a sufficient reason for
confining the sense to the case where a State is
plaintiff. It is, however, a sufficient answer
to say, that our Constitution most certainly
contemplates, in another branch of the cases
enumerated. the maintaining a jurisdiction
against a State, as Defendant; this is unequiv-
ocally asserted when the judicial power of the
United States is extended to controversies be-
tween two or more States; for there, a State
must, of necessity, be a Defendant. It is ex-
tended also. to controversies between a State
and foreign States; and if the argument taken
from the order of designation were good, it
would be meant here, that this Court might
have cognizance of a suit, where a State is
Plaintiff, and some foreign State a Defendant,
but not where a foreign State brings a suit
against a State. This, however, not to mention
that the instances may rarely occur. when a
State may have an opportunity of suing in the
American, Courts a foreign State, seems to lose
sight of the policy which, no doubt, suggested
this provision. viz. That no State in the Union
should, by withholding justice. have it in its
power to embroil the whole confederacy in
disputes of another nature. But if a foreign
State, though last named, may, nevertheless,
be a Plaintiff against an individual State, how
can it be said, that a controversy between a
State and a citizen of another State means, from
the mere force of the order of the words, only
such cases where a State is Plaintiff? After
describing, generally, the judicial powers of the
United States, the Constitution goes on to speak
of it distributively. and gives to the Supreme
Court original jurisdiction, among other in-
stances, in the case where the State shall be a
party; but is not a State a party as well in the
condition of a Defendant as in that of a Plaint-
iff. And is the whole force of that expression
satisfied by confining its meaning to the case of
a Plaintiff-State? It seems to me, that if this
Court should refuse to hold jurisdiction of a
case where a State is Defendant, it would re-
nounce part of the authority conferred, and,
consequently, part of the duty imposed on it by
the Constitution: because it would be a refusal
to take cognizance of a case where a State is a
party. Nor does the jurisdiction of this Court,
in relation to a State, seem to me to be question-
able, on the ground that Congress has not pro-
vided any form of execution, or pointed out any
mode of making the judgment against a State
effectual; the argument ab in utili may weigh
much in cases depending upon the construction
of doubtful Legislative acts, but can have no
force. I think. against the clear and positive
directions of an act of Congress and of the Con-
stitution. Let us go on as far as we can; and
if, at the end of the business, notwithstanding
the powers given us in the 14th section of
*the judicial law, we meet difficulties [*452
insurmountable to us, we must leave it to those
departments of Government which have higher
powers; to which, however, there may be no
necessity to have recourse: Is it altogether a
vain expectation, that a State may have other
motives than such as arise from the apprehen-
sion of coercion, to carry into execution a judg-
ment of the Supreme Court of the United
States, though not conformable to their own
ideas of justice? Besides, this argument takes
it for granted, that the judgment of the Court
will be against the State; it possibly may be in
favor of the State; and the difficulty vanishes.
Should judgment be given against the Plaintiff,
could it be said to be void, because extra-
judicial? If the Plaintiff, grounding himself
upon that notion, should renew his suit against
the State, in any mode in which she may
permit herself to be sued in her own Courts,
would the Attorney General for the State be
obliged to go again into the merits of the Case.
because the matter, when here, was coram non
judice? Might he not rely upon the judgment
given by this Court in bar of the new suit? To
me it seems clear that he might. And if a
State may be brought before this Court, as a
Defendant, I see no reason for confining the
Plaintiff to proceed by way of petition; indeed
there would even seem to be an impropriety in
proceeding in that mode. When sovereigns are
sued in their own Courts, such a method may
have been established as the most respectful
form of demand; but we are not now in a State-
Court; and if sovereignty be an exemption
from suit in any other than the sovereign's own
Courts, it follows that when a State, by adopt-
ing the Constitution. has agreed to he amenable
to the judicial power of the United States, she
has, in that respect, given up her right of
sovereignty.
With respect to the service of the summons to
appear, the manner in which it has been served
seems to be as proper as any which could be
devised for the purpose of giving notice of the
suit, which is the end proposed by it. the Gov-
ernor being the head of the Executive Depart-
ment, and the Attorney General the law officer,
who generally represents the State in legal pro-
ceedings: and this mode is the less liable to
exception, when it is considered, that in the suit
brought in this Court by the State of Georgia
against Brailsford [1] and others, it is conceived
in the name of the Governor, in behalf of the
State. If the opinion which I have delivered,
respecting the liability of a State to be sued in
this Court, should be the opinion of the Court,
it will come in course to consider, what is the
proper step to be taken for inducing appearance,
none having been yet entered in behalf of the
Defendant. A judgment by default, in the
present stage of the business, and writ of enquiry
of damages, would *be too precipitate [*453
in any case, and too incompatible with the
dignity of a State in this. Farther opportunity
of appearing to defend the suit ought to be given.
The conditional order moved for the last term,
the consideration of which was deferred to this,
1.--Ant. p. 402, 415.
seems to me to be a very proper mode; it will
warn the State of the meditated consequence of a
refusal to appear, and give an opportunity for
more deliberate consideration. The order, I
think, should be tires;. "Ordered, that unless
"the State of Georgia should, after due notice
"of this order, by a service thereof upon the
"Governor and Attorney General of the said
"State, cause an appearance to be entered in
" behalf of the State, on the 5th day of the next
"Term, or then shew cause to the contrary,
"judgment be then entered up against the State,
"and a writ of enquiry of damages be awarded."
WILSON, Justice. This is a case of uncom-
mon magnitude. One of the parties to it is a
STATE; certainly respectable, claiming to be
sovereign. The question to be determined is,
whether this State, so respectable, and whose
claim soars so high, is amenable to the juris-
diction of the Supreme Court of the United
States? Thin question. important in itself, will
depend on others, more important still; and,
may, perhaps. be ultimately resolved into one,
no less radical than this--"do the people of the
United States form a NATION?"
A cause so conspicuous and interesting, should
be carefully and accurately viewed from every
possible point of sight. I shall examine it. 1st.
By the principles of general jurisprudence.
2d. By the laws and practice of particular States
and Kingdoms. From the law of nations little
or no illustration of this subject can be expected.
By that law tile several States and Governments
spread over our globe, are considered as forming
a society. not a NATION. It has only been by a
very few comprehensive minds, such as those
of Elizabeth and the Fourth Henry, that this last
great idea has been even contemplated. 3dly.
and chiefly, I shall examine the important ques-
tion before its, by tim Constitution of the United
States, and the legitimate result of that valuable
instrument.
I. I am, first, to examine this question by the
principles of general jurisprudence. What I
shall say upon this head, I introduce by the
observation of an original and profound writer,
who in the philosophy of mind, and all the
sciences attendant on this prime one, has formed
an aera not less remarkable, and far more
illustrious, than that formed by the justly cele-
brated Bacon, in another science not prosecuted
with less ability, but less dignified as to its ob-
ject; I mean the philosophy of matter. Dr. Reid,
in his excellent enquiry into the human mind,
on the principles of common sense, speaking of
454*] the sceptical and *illiberal philosophy,
which under bold, but false, pretentions to
liberality, prevailed in many parts of Europe
before he wrote, makes tim following judicious
remark: "The language of philosophers. with
regard to the original faculties of the mind, is so
adapted to the prevailing system, that it cannot
fit any other; like a coat that fits the man for
whom it was made. and shews him to advantage,
which vet will fit very awkward upon one of a
different make, although us handsome and well
proportioned. It is hardly possible to make
any. innovation in our philosophy concerning
the mind and its operations, without using new
words and phrases, or giving a different mean-
ing to those that are received." With equal
propriety may thin solid remark be applied to
the great subject, on the principles of Which the
decision of this Court is to be founded. The
perverted use of genus and species in logic, and
of impressions and ideas in metaphysics, have
never done mischief so extensive or so practically
pernicious, as has been done by States and
sovereigns, in politics and jurisprudence; in the
politics and jurisprudence even of those, who
wished and meant to be free. In the place of
those expressions I intend not to substitute
new ones; but the expressions themselves I
shall certainly use for purposes different from
those, for which hitherto they have been fre-
quently used; and one of them I shall apply
to an object still more different from that. to
which it has hitherto been more frequently, I
may say almost universally, applied. In these
purposes, and in this application, I shall be
justified by example the most splendid, and by
authority the most binding; the example of the
most refined as well as the most free nation
known to antiquity; and the authority of one of
tim best Constitutions known to modern times.
With regard to one of the terms--State---this
authority is declared: With regard to the other
--sovereign--the authority is implied only: But
it is equally strong: For, in an instrument
well drawn, as in a poem well composed, silence
is sometimes most expressive.
To the Constitution of the United States the
term SOVEREIGN, is totally unknown. There
is but one place where it could have been used
with propriety. But, eve,t in that place it would
not, perhaps, have comported with the delicacy
of those, who ordained and established that
Constitution. They might have announced
themselves "SOVEREIGN" people of the United
States: But serenely conscious of the fact, they
avoided the ostentatious declaration.
Having thus avowed my disapprobation of
the purposes, for which the terms, State and
sovereign, are frequently used, and of the object,
to which tim application of the last of them is
almost universally made; it is now proper that
I should disclose the meaning, which I assign to
both, and the application, *which I make[*455
of the latter. In doing this, I shall have occa-
sion incidently to evince, how true it is, that
States and Governments were made for man; and,
at the same time, how true it is, that his creatures
and servants have first deceived, next vilitied, and,
at last, oppressed their master and maker.
MAN, fearfully and wonderfully made, is the
workmanship of his all perfect CREATOR: A
State; useful and valuable as the contrivance
is, is the inferior contrivance of man; and from
his native dignity derives all its acquired impor-
tance. When I speak of a State as an inferior
contrivance, I mean that it is a contrivance infe-
rior only to that, which is divine: Of all human
contrivances, it is certainly most transcendantly
excellent. It is concerning this contrivance
that Cicero says so sublimely, "Nothing,
which is exhibited upon our globe, is more ac-
ceptable to that divinity, which governs the
whole universe, than those communities and as-
semblages of men, which, lawfully associated,
are denominated STATES."[1]
Let a State be considered as subordinate to
the PEOPLE: But let everything else be subor-
dinate to the State. The latter part of this po-
1.--Som. Sup. c. 3.
sition is equally necessary with tim former.
For in the practice, and even at length, in the
science of politics there has very frequently
been a strong current against the natural order
of things, and an inconsiderate or an interested
disposition to sacrifice the end to the means. As
the State has claimed precedence of the people;
so, in the same inverted course of things, the
Government has often claimed precedence of
the State: and to this perversion in the second
degree, many of the volumes of confusion con-
cerning sovereignty owe their existence. The
ministers, dignified very properly, by the appel-
lation of the magistrates, have wished, and have
succeeded in their wish, to be considered as the
sovereigns of the State. This second degree of
perversion is confined to the old world, and be-
gins to diminish even there: but the first degree
is still too prevalent, even in the several States,
of which our union is composed. By a State I
mean, a complete body of free persons united
together for their common benefit, to enjoy
peaceably what is their own, and to do justice
to others. It is an artificial person. It has its
affairs and its interests: It him its rules: It has
its rights: And it has its obligations. It may
acquire property distinct from that of its mem-
bers: It may incur debts to be discharged out
of the public stock, not out of the private for-
tunes of individuals. It may be bound by con-
tracts; and for damages arising from tim breach
of those contracts. In all our contemplations,
456*] however, concerning this *feigned and
artificial person, we should never forget, that,
in truth and nature, those, who think and speak,
and act, are men.
Is the foregoing description of it State a true
description? It will not be questioned, but it
is. Is there any part of this description, which
intimates, in the remotest manner, that a State,
any more than the men who compose it, ought
not to do justice and fulfil engagements? It
will not be pretended that there is. If justice
is not done; if engagements arc not fulfilled; is
it upon general principles of right, less proper,
in the case of a great number, than in the case
of an individual, to secure, by compulsion,
that, which will not be voluntarily performed?
Less proper it surely cannot be. The only rea-
son, I believe, why a free man is bound by hu-
man laws, is, that he binds himself. Upon the
same principles, upon which he becomes bound
by the laws, he becomes amenable to the Courts
of Justice, which are formed and authorized by
those laws. If one free man, an original sov-
ereign, may do all this, why may not an aggre-
gate of free men, a collection of original sover-
eigns, do this likewise? If the dignity of each
singly is undiminished, the dignity of all joint-
ly must be unimpaired. A State, like a mer-
chant, makes a contract: A dishonest State,
like a dishonest merchant, wilfully refuses to
discharge it: The latter is amenable to a Court
of Justice: Upon general principles of right,
shall the former when summoned to answer the
fair demands of its creditor, be permitted, pro-
teus like, to assume a new appearance, and to
insult him and justice, by declaring I am a
SOVEREIGN State? Surely not. Before a claim,
so contrary, in its first appearance, to the gener-
al principles of right and equality, be sustain-
ed by a just and impartial tribunal, the person,
natural or artificial, entitled to make such
claim, should certainly be well known and au-
thenticated. Who, or what, is a sovereignty?
What is his or its sovereignty? On this sub-
ject, the errors and the mazes are endless and
inexplicable. To enumerate all, therefore, will
not be expected: To take notice of some will be
necessary to the full illustration of the present
important cause. In one sense, the term sover-
eign has for its correlative, subject. In this
sense, the term can receive no application; for
it has no object in the Constitution of the Unit-
ed States. Under that Constitution there are
citizens, but no subjects. "Citizen of the Unit-
ed States."[1] "Citizens of another State"
"Citizens of different States." "A State or
citizen thereof."[2] The term, subject, occurs,
indeed, once in the instrument; but to mark
the contrast strongly, the epithet "foreign"[3] is
prefixed. In this sense, I presume the State of
Georgia has no claim upon *her own [*457
citizens: In this sense, I am certain, she can
have no claim upon the citizens of another
State.
In another sense, according to some writers[4],
every State, which governs itself without any
dependence on another power, is a sovereign
State. Whether, with regard to her own citi-
zens, tins is the case of the State of Georgia;
whether those citizens have done, as the indi-
viduals of England are said, by their late in-
structors, to have done, surrendered the Su-
preme Power to the State or Government, and
reserved nothing to themselves; or whether,
like the people of other States, and of the Unit-
ed States, the citizens of Georgia have reserved
the Supreme Power in their own hands: and on
that Supreme Power have made the State de-
pendent, instead of being sovereign: these are
questions, to which, as a Judge in this cause, I
can neither know nor suggest the proper an-
swers; though, as a citizen of the Union, I
know, and am interested to know, that the
most satisfactory answers can be given. As a
citizen, I know the Government of that State to
be republican: and my short definition of such
a Government is.---one constructed on this prin-
ciple, that the Supreme Power resides in the
body of the people. As a Judge of this Court,
I know, and can decide upon the knowledge,
that the citizens of Georgia. when they acted
upon the large scale of the Union, as a part of
the "People of the United States," did not sur-
render the Supreme or sovereign Power to that
State; hut, as to the purposes of the Union, re-
tained it to themselves. As to the purposes of
the Union, therefore, Georgia is NOT a sovereign
State. If the judicial decision of this case
forms one of those purposes; the allegation, that
Georgia is a sovereign State, is unsupported by
the fact. Whether the judicial decision of this
cause is, or is not, one of those purposes, is a
question which will be examined particularly
in a subsequent part of my argument.
There is a third sense, in which the term
sovereign is frequently used. and which it is
very, material to trace and explain, as it fur-
nishes a basis for what I presume to be one of
the principal objections against the jurisdiction
1.--Art. 1. s. 2.
2.--Art. 3. s. 3.
3.--Art. 3. s. 3.
4.--Vatt. B. 1. c. s. 4.
of this Court over the State of Georgia. In
this sense, sovereignty is derived from a feudal
source; and like many other parts of that sys-
tem so degrading to man, still retains its influ-
ence over our sentiments and conduct, though
the cause by which that influence was pro-
duced, never extended to the American States.
The accurate and well informed President
Henault, in his excellent chronological abridg-
ment of the History of France, tells us, that,
about the end of tim second race of Kings, a
new kind of possession was acquired, under the
name of Fief. The Governors of Cities and
Provinces usurped equally the property of land,
458*] *and the administration of justice; and
established themselves as proprietary Seigniors
over those places, in which they had been only
civil magistrates or military officers. By this
means, there was introduced into the State
a new kind of authority, to which was assigned
the appellation of sovereignty.[1] In process of
time the feudal system was extended over
France, and almost all the other nations of
Europe: And every Kingdom became, in fact, a
large Fief. Into England this system was intro-
duced by the conqueror: and to this tern we
may, probably, refer the English maxim, that
the King or sovereign is the fountain of Justice.
But, in the case of the King, the sovereignty
had a double operation. While it vested him
with jurisdiction over others, it excluded all
others fram Jurisdiction over him. With re-
gard to him, there was no superior power; and,
consequently, on feudal principles, no right of
jurisdiction. "[2]The law, says Sir William
Blackstone, ascribes to the King the attribute of
sovereignty: he is sovereign and independent
within his own dominions; and owes no kind
of subjection to any other potentate upon earth.
Hence it is, that no suit or action can be
brought against the King, even in civil matters;
because no Court can have jurisdiction over
him: for all jurisdiction implies superiority of
power." This last position is only a branch of
a much more extensive principle, on which a
plan of systematic despotism has been lately
formed In England, and prosecuted with un-
wearied assiduity and care. Of this plan the
author of the Commentaries was, if not the in-
troducer, at least the great supporter. He has
been followed in it by writers later and less
known; and his doctrines have, both on the
other and tide side of the Atlantic, been im-
plicitly and generally received by those, who
neither examined their principles nor their con-
sequences. The principle is, that all human law
must be prescribed by a superior. This prin-
ciple I mean not now to examine. Suffice it,
at present to say, that another principle, very.
different in its nature and operations, forms, in
my judgment, the basis of sound and genuine
jurisprudence; laws derived from the pure
source of equality and justice must be rounded
on tim CONSENT of those, whose obedience they
require. The sovereign, when traced to his
source, must be found in the man.
I have now fixed, in the scale of things, the
grade of a State; and have described its com-
posure: I have considered the nature of sover-
eignty; and pointed its application to the proper
object. I have examined the question before
1.--Ht. 143.
2.--1 Bl. 1 Com. 241. 242.
us, by the principles of general jurisprudence.
In those principles. I find nothing, which tends
to evince an exemption of the State of Georgia,
from the jurisdiction of the Court. I find every
thing to have a contrary tendency.
*II, I am, in the second place; to ex- [*459
amine this question by the laws and practice of
different States and Kingdoms. In ancient
Greece. as we learn from Isocrates, whole na-
tions defended their rights before crouded tri-
bunals. Such occasions as these excited, we
are told, all the powers of persuasion; and the
vehemence and enthusiasm of the sentiment
was gradually infused into the Grecian, lan-
guage, equally susceptible of strength and har-
mony. In those days, law, liberty, and refining
science, made their benign progress in strict
and graceful union: The rude and degrading
league between the bar and feudal barbarism
was not yet formed.
When the laws and practice of particular States
have any application to the question before us;
that application will furnish what is called an
argument a fortiori; because all the instances
produced will be instances of subjects instituting
and supporting suits against those, who were
deemed their own sovereigns. These instances
are stronger than the present one; because be-
tween the present plaintiff and defendant no
such unequal relation is alledged to exist.
Columbus achicved the discovery of that
country, which, perhaps, ought to bear his
name. A contract made by Columbus fur-
nished the first precedent for supporting, in his
discovered country, the cause of injured merit
against the claims and pretensions of haughty
and ungrateful power. His sun Don Diego
wasted two years in incessant, but fruitless, so-
licitation at tim Court of Spain, for the rights
which descended to him in consequence of his
father's original capitulation. lie endeavoured,
at length to obtain, by a legal sentence, what
he could not procure from the favour of an in-
terested Monarch. He commenced a suit against
Ferdinand before the Council, which managed
Indian affairs: and that Court, with integrity
which reflects honour on their proceedings. de-
cided against the King, and sustained Don
Diego's claim.[3]
Other States have instituted officers to judge
the proceedings of their Kings: Of this kind
were the Ephori of Sparta: of this kind also
was the mayor of the Palace, and afterwards
the constable of France.[4]
But of all the laws and institutions relating
to the present question, none is so srtiking as
that described by the famous Hottoman, m his
book entitled Francogallia. When the Span-
iards of Arragon elect a King, they represent a
kind of play, and introduce a personage, whom
they dignify by the name of LAW, la Justiza, of
Arragon. This personage they declare, by a
public decree, to be greater and more powerful
than their King; and then address him in the
following remarkable expressions. "We, who
are of as great worth as you, and can do more
*than you can do, elect you to be our [*460
King, upon the conditions stipulated: But be-
tween you and us there is one of greater au-
thority than you."[5]
In England, according to Sir William Black-
3.--R. A. 231.
4.--Sid 131.
5.--Hol. 71. Book 31.
stone, no suit can be brought against the King,
even in civil matters. So, in that Kingdom, is
the law, at this time, received. But it was not
always so. Under the Saxon Government, a
very different doctrine was held to be orthodox.
Under that Government, as we are informed by
the Mirror of Justice, a book said, by Sir Ed-
ward Coke, to have been written, in part. at
least. before the conquest; under that Govern-
ment it was ordained. that the King's Court
should be open to all Plaintiffs, by which,
without delay, they should have remedial writs.
as well against the King or against the Queen,
as against any other of tim people.[1] The law
continued to be the same for some centuries
after the conquest. Until the time of Edward
I. the King might have been sued as a common
person. The form of the process was even im-
perative. "Praecipe Henrico Regi Angliae" &c.
"Command Henry King of England" &c.[2]
Bracton, who wrote in the time of Henry 111.
uses these very remarkable expressions concern-
ing the King "in justitia recipienda, minimo de
regno suo comparetur"--"in receiving justice,
he should be placed on a level with the meanest
person in the Kingdom."[3] 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 judg-
ments or decrees of those Courts will substan-
tially be the same upon a precatory as upon a
mandatary process. In the Courts of Justice,
says the very able author of the considerations
on the laws of forfeiture, the King enjoys many
privileges; yet not to deter the subject from
contending with him freely.[4] The Judge of
the High Court of Admiralty in England made.
in a very late cause, the following manly and
independent declaration. "In any case, where
the Crown is a party, it is to be observed, that
the Crown can no more withhold evidence of
documents in its possession, than a private per-
son. If the Court thinks proper to order the
production of any public instrument; that order
must be obeyed. It wants no Insignia of an
authority delayed from the Crown."[5]
"Judges ought to know, that the poorest
peasant as a man as well as the King himself:
all men ought to obtain justice; since ha the
estimation of justice, all men are equal; whether
the Prince complain of a peasant. or a peasant
complain of the Prince."[6] These are the words
of a King, of the late Frederic of Prussia. In
his Courts of Justice, that great man stood upon
461*] *his native greatness; and disdained to
mount upon the artificial stilts of sovereignty.
Thus much concerning the laws and practice
of other States and Kingdoms. We see nothing
against, but much in favor of, the jurisdiction
of this Court over the State of Georgia, a party
to this cause.
III. I am. thirdly. and chiefly, to examine
the important question now before us, by the
Constitution of the United States, and the legit-
imate result of that valuable instrument. Under
this view, the question is naturally subdivided
into two others. 1. Could the Constitution of
the United States vest a jurisdiction over the
State of Georgia? 2. Has that Constitution
1.--4 C. A. N. 487. 4.--G. F. 124.
2.--Brac. 107. Com.104. 5.--Col. Jur. 68.
3.--Com. 104. 6.--War. 343.
vested such Jurisdiction in this Court? I have
already remarked, that in the practice, and even
in the science of politics, there has been fre-
quently a strong current against the natural
order of things; and an inconsiderate or an inter-
ested disposition to sacrifice the end to the means.
This remark deserves a more particular illustra-
tion. Even in almost every nation, which has
been denominated free, the state has assumed a
supercilious pre-eminence above the people, who
have formed it: Hence the haughty notions of
state independence, state sovereignty and state
supremacy. In despotic Governments, the Gov-
ernment has usurped, in a similar manner, both
upon the state and the people: Hence all arbi-
trary doctrines and pretensions concerning the
Supreme, absolute, and incontrolable, power of
Government. In each, man is degraded from
the prime rank, which he ought to hold in
human affairs: In the latter, the state as well as
the man is degraded. Of both degradations,
striking instances occur in history, m politics,
and in common life. One of them is drawn
from an anecdote, which is recorded concern-
ing Louis XIV. who has been styled the grand
Monarch of France. This Prince, who diffused
around him so much dazzling splendour, and ,so
little vivifying heat, was vitiated by that in-
vertcd manner of teaching and of thinking,
which forms Kings to be tyrants, without know-
ing or even suspecting that they are so. The
oppression, under which he held his subjects
during the whole course of his long reign, pro-
ceeded chiefly from the principles and habits of
his erroneous education. By these, he had
been accustomed to consider his Kingdom as his
patrimony, and his power over his subjects as
his rightful and uadelegated inheritance. These
sentiments were so deeply, and strongly im-
printed on his mind, that when one of his Min-
isters represented to him the miserable condi-
tion, to which those subjects were reduced, and,
in the course of his representation, frequently
used the word L'Etat, the state, the King, though
he felt the truth and approved the substance of
all that was said, yet was shocked at the fre-
quent repetition of the expression L'Etat; and
*complained of it as an indecency offered [*462
to his person and character. And, indeed, that
Kings should imagine themselves the final causes,
for which men were made, and societies were
Formed, and Governments were instituted, will
cease to be a matter of wonder or surprise,
when we find that lawyers, and statesmen, and
philosophers, have taught or favoured princi-
ples, which necessarily lead to the same conclu-
sion. Another instance, equally strong, but still
more astonishing, is drawn from the British
Government, as described by Sir William Black-
stone and his followers. As described by him
and them, the British is a despotic Government.
It is a Government without a people. In that
Government, as so described, the sovereignty is
possessed by the Parliament: In the Parlia-
ment, therefore, the supreme and absolute au-
thority is vested:[7] In the Parliament resides
that incontrollable and despotic power, which,
in all Governments, must reside somewhere.
The constituent pain of the Parliament are the
King's Majesty, the Lord's Spiritual, the Lord's
Temporal, and the Commons. The King and
7.--1 Bl. Com. 46-52. 147. 160-162.
these three Estates together form the great cor-
poration or body politic of the Kingdom. All
these sentiments are found; the last expressions
are found verbatim[1] in the commentaries upon
the laws of England." The Parliament form
the great body politic of England! What, then,
or where. arc the PEOPLE ? Nothing! No where!
They are not so much as even the "baseless
fabric of a vision!" From legal contemplation
their totally disappear! Am I not warranted in
saying, that, if this is a just description; a Gov
ernment, so and justly so described. is a despotic
Government? Whether this description is or is
not a just one, is a question of very different
import.
In the United States. and in the several States.
which compose the Union, we go not so far:
but still we go one step farther than we ought to
go in this unnatural and inverted order of
things. The states, rather than the PEOPLE, for
whose sakes the States exist, are frequently the
objects which attract and arrest our principal
attention. This. I believe. has produced much
of the confusion and perplexity, which have
appeared in several proceedings and several
publications on state-politics, and on the politics.
too, of the United States. Sentiments and ex-
pressions of this inaccurate kind prevail in our
common, even in our convivial. language. Is
a toast asked? "The United States." instead of
the "People of the United States." is the toast
given. This is not politically correct. The
toast is meant to present to view the first great
object in the Union: It presents only the second:
It presents only the artificial person, instead of
the natural persons, who spoke it into existence.
463*] A State I cheerfully *admit, is the noblest
work of Man: But, Man himself, free and hon-
est, is, I speak as to this world, the noblest
work of God.
Concerning the prerogative of Kings, and
concerning tile sovereignty of States, much has
been said and written: but little has been said
and written concerning a subject much more
dignified and important, the majesty of the
people. The mode of expression, which I would
substitute in the place of that generally used. is
not only politically. but also (for between true
liberty and true taste there is a close alliance)
classically more correct. On the mention of
Athens, a thousand refined and endearing asso-
ciations rush at once into the memory of the
scholar, the philosopher, and the patriot. When
Homer, one of the most correct, as well as the
oldest of human authorities, enumerates the
other nations of Greece, whose forces acted at
the siege of Troy, he arranges them under tim
names of their different Kings or Princes: Butt
when he comes to the Athenians, he distin-
guishes them by the peculiar appellation of the
PEOPLE[3] of Athens. The well known address
used by Demosthenes. when he harrangued and
animated his assembled countrymen. was "O
Men of Athens." With the strictest propriety.
therefore, classical and political, our national
scene opens with the most magnificent object.
which the nation could present. "The PEOPLE
of the United States" are the first personages
introduced. Who were those people? They
1.--1. Bl. Com. 153. 2.--1 Bl. Com. 153.
3.--ll. 1. 2. v. 54. Demos Pol. 12. one of the words,
of which democracy is compounded.
were the citizens of thirteen States, each of
which had a separate Constitution and Govern-
ment, and all of which were connected together
by articles of confederation. To the purposes
of public strength and felicity, that confederacy
was totally inadequate. A requisition on the
several States terminated its Legislative authori-
ty: Executive or Judicial authority it had none.
In order, therefore, to form a more perfect
union. to establish justice, to ensure domestic
tranquillity, to provide for common defence, and
to secure the blessings of liberty, those people,
among whom were the people of Georgia, or-
dained and established the present Constitution.
By that Constitution Legislative power is vested,
Executive power is vested, Judicial power is
vested.
The question now opens fairly to our view,
could the people of those States, among whom
were those of Georgia, bind those States, and
Georgia among the others, by the Legislative,
Executive, and Judicial power so vested? If
the principles, on which I have rounded myself,
are just and true; this question must unavoid-
ably receive an affirmative answer. If those
States were the work of those people; those peo-
pl, and, that I may apply the case closely, the
people of Georgia, in particular. *could [*464
alter, as they pleased, their former work: To
any given degree, they could diminish as well
as enlarge it. Any or all of the former State-
powers they could extinguish or transfor. The
inference, which necessarily results, is, that the
Constitution ordained and established by those
people: and, still closely to apply the case, in
particular by the people of Georgia, could vest
jurisdiction or judicial power over those States
and over the State of Georgia in particular.
The next question under this head, is,--Has
the Constitution done so? Did those people
mean to exercise this, their undoubted power?
These questions may be resolved, either by fair
and conclusive deductions, or by direct and
explicit declarations. In order, ultimately, to
discover, whether the people of the United
States intended to bind those States by the
Judicial power vested by the national Constitu-
tion, a previous enquiry will naturally be: Did
those people, intend to bind those states by the
Legislative power vested by that Constitution?
The articles of confederation. it is well known.
did not operate upon individual citizens; but
operated only upon states. This defect was
remedied, by the national Constitution, which,
as all allow has an operation on individual citi-
zens. But if an opinion, which some seem to
entertain, be just; the defect remedied, on one
side, was balanced by a defect introduced on
the other: For they seem to think, that the
present Constitution operates only on individual
citizens, and not on States. This opinion. how-
ever, appears to be altogether unfounded. When
certain laws of the States are declared to be
"subject to the revision and controul of the
Congress;[4] it cannot, surely, be contended that
the Legislative power of the national Govern-
meat was meant to have no operation on the
several States. The fact, uncontrovertibly es-
tablished in one instance, proves the principle in
all other instances, to which the facts will be
found to apply. We may then infer, that the
4.--Ar. 1. s. 10.
people of the United States intended to bind the
several States, by the Legislative power of the
national Government.
In order to make the discovery, at which we
ultimately aim, a second previous enquiry will
naturally be--Did the people of the United
States intend to hind the several States by the
Executive power of the national Government?
The affirmative answer to the former question
directs, unavoidably, an affirmative answer to
this. Ever since the time of Bracton, his maxim,
I believe, has been deemed a good one--
"Supervacuum esset leges condere, nisi esset qui
leges tueretur."[1] "It would be superfluous to
make laws, unless those laws, when made, were
to be enforced." When the laws are plain, and
the application of them is uncontroverted, they
465*] are enforced immediately by the *Ex-
ecutive authority of Government. When the
application of them is doubtful or intricate, the
interposition of the judicial authority becomes
necessary. TIm same principle, therefore, which
directed us from the first to the second step will
direct us from the second to the third and last
step of our deduction. Fair and conclusive de-
duction, then, evinces that the people of the
United States did vest this Court with jurisdic-
tion over the State of Georgia. The same truth
may be deduced from tile declared objects, and
the general texture of the Constitution of the
United States. One of its declared objects is, to
form an union more perfect, titan, before that
time, had been formed. Before that time, the
Union possessed Legislative, but uninforced
Legislative power over the States. Nothing
could be more natural than to intend that tins
Legislative power should be enforced by powers
Executive and Judicial. Another declared ob-
ject is, "to establish justice." This points, in
a particular manner, to the Judicial authority.
And when we view this object in conjunction
with the declaration, "that no State shall pass
a law impairing the obligation of contracts;"
we shall probably think, that this object points,
in a particular manner, to the jurisdiction of
the Court over the several States. What good
purpose could this Constitutional provision
secure, if a State might pass a law impairing
the obligation of its own contracts; and be
amenable, for such a violation of right, to no
controuling judiciary power? We have seen,
that on the principles of general jurisprudence,
a State, for the breach of a contract, may be
liable for damages. A third declarced object is
--"to ensure domestic tranquillity." This tran-
quillity is most likely to be disturbed by contro-
versies between States. These consequences
will be most peaceably and effectually decided
by the establishment and by the exercise of a
superintending judicial authority. By such ex-
ercise and establishment. the law of nations;
the rule between contending States; will be en-
forced among the several States, in the same
manner as municipal law.
Whoever considers, in a combined and com-
prehensive view, the general texture of the Con-
stitution, will be satisfied, that the people of the
United States intended to form themselves into
a nation for national purposes. They instituted,
for such purposes, a national Government, com-
plete in all its parts, with powers Legislative, Ex-
1.-- Brac. 107.
ecutive and Judiciary; and, in all those powers,
extending over the whole nation. Is it con-
gruous, that, with regard to such purposes, any
man or body of men, any person natural or arti-
ficial, should be permitted to claim successfully
an entire exemption from the jurisdiction of the
national Government ? Would not such claims,
crowned with success, be repugnant to our very
existence as a nation? When *so many [*466
trains of deduction, coming from different
quarters, converge and unite, at last, in the
same point; we may safely conclude, as the
legitimate result of this Constitution, that the
State of Georgia is amenable to the jurisdiction
of this Court.
But, in my opinion, this doctrine rests not
upon the 1egitimate result of fair and conclu-
sive deduction from the Constitution: It is con-
fumed, beyond all doubt, by the direct and
explicit declaration of the Constitution itself.
"The judicial power of the United States shall
extend, to controversies between two States."[1]
Two States are supposed to have a con-
troversy between them: This controversy is
supposed to be brought before those vested
with the judicial power of the United States:
Can the most. consummate degree of profes-
sional ingenuity devise a mode by which this
"controversy between two Slates" can be
brought before a Court of law; and yet neither
of those States be a Defendant? "The judi-
cial power of the United States shall extend to
controversies, between a Mate and citizens of
another State." Could the strictest legal
language; could even that language, which m
peculiarly appropriated to an art, deemed, by
a great master, to be one of the most honorable,
laudible, and profitable things in our law;
could this strict and appropriated language,de-
scribe, with more precise accuracy, the cause
now depending before the tribunal ? Causes and
not parties to causes, are weighed by justice, in
her equal scales: On the former safely, her at-
tention is fixed: To the latter, she is, as she is
painted, blind.
I have now tried this question by all the
touchstones, to which I proposed to apply it.
I have examined it by the principles of general
jurisprudence; by the laws and practice of
States and Kingdoms; and by the Constitution
of the United States. From all, the combined
inference is; that the action lies.
CUSHING, Justice. The grand and principal
question in this case is, whether a State can, by
the Federal Constitution, be sued by an indi-
vidual citizen of another state?
The point turns not upon the law or practice
of England, although perhaps it may be in
some measure elucidated thereby, nor upon
the law of any other country whatever; but
upon the Constitution established by the people
of the United States; and particularly upon the
extent of powers given to the Federal Judi-
cial in the 2d section of the 3d article of the
Constitution. It is declared that "the Judi-
cial power shall extend to all cases in law and
equity arising under the Constitution, the laws
of the United States, or treaties made or which
shall be made under their authority; to all
cases affecting ambassadors or other public
ministers and consuls; to all cases of admiralty
1.--Art. 3. s. 2.
and maritime jurisdiction; to controversies, to
467*] which the United *States shall be a party;
to controversies between two or more States and
citizens of another State; between citizens of
different States; between citizens of the same
State claiming lands under grants of different
States; and between a State and citizens there-
of and foreign States, citizens or subjects."
The judicial power, then, is expressly extended
to "controversies between a State and citizens of
another State." When a citizen makes a de-
mand against a State, of which he is not a
citizen, it is as really a controversy between a
State and a citizen of another State, as if such
State made a demand against such citizen.
The case, then, seems clearly to fall within
the letter of the Constitution. It may be sug-
gested that it could not be intended to subject
a State to be a Defendant because it would
affect the sovereignty of States. If that be the
case, what shall we do with the immediate pre-
ceding clause; "controversies between two or
more States," where a State must of necessity
be Defendant? If it was not the intent, in
the very next clause also, that a State might be
made Defendant, why was it so expressed as
naturally to lead to and comprehend that idea?
Why was not an exception made if one was
intended?
Again: what are we, to do with the last
clause of the section of judicial powers, viz:
Controversies between a state, or the citizens
thereof and foreign states or citizens?" Here
again, States must be suable or liable to be
made defendants by this clause, which has a
similar mode of language with tim two other
clauses I have remarked upon. For if the
judicial power extends to a controversy be-
tween one of the United States and a foreign
State, as the clause expresses, one of them
must be defendant. And then, what becomes
of the sovereignty of States as far as suing
affects it? But although the words appear re-
ciprocally to affect a State here and a foreign
State, and put them on the same footing as far
as may be, yet ingenuity may say, that the
State here may sue, but cannot be sued; but
that the foreign State may be sued but cannot
sue. We may touch foreign sovereignties but
not our own. But I conceive the reason of
the thing, as well as the words of the Constitu-
tion, tend to shew that the Federal Judicial
power extends to a suit brought by a foreign
State against any one of the United States.
ONE design of the general government was for
managing the great affairs of peace and war
and the general defence,which were impossible
to be conducted. with safety, by the States
separately. Incident to these powers, and for
preventing controversies between foreign pow-
ers or citizens from rising to extremeties and
to an appeal to the sword, a national tribunal
was necessary, amicably to decide them and
thus ward off such fatal, public calamity.
Thus, States at home and their citizens, and
foreign States and their citizens,are put together
468*] without *distinction upon the same
footing, as far as may be, as to controversies be-
tween them. So also; with respect to controver-
sics between a State and citizens of another State
(at home) comparing all the clauses together,
the remedy is reciprocal; the claim to justice
equal. As controversies between State and
State, and between a State and, citizens of an-
other State, might tend gradually to involve
States in war and bloodshed, a disinterested
civil tribunal was intended to be instituted to
decide such controversies, and preserve peace
and friendship. Further; if a State is entitled to
Justice in the Federal Court, against a citizen
of another State, why not such citizen against
the State, when the same language equally
comprehends both? The rights of individuals
and the justice due to them, are as dear and
precious as those of States. Indeed the latter
are rounded upon the former; and the great
end and object of them must be to secure and
support the rights of individuals, or else vain
is Government.
But still it may be insisted, that this will re-
duce States to mere corporations, and take
away all sovereignty. As to corporations, all
States whatever are corporations or bodies
politic. The only question is, what are their
powers? As to individual States and the
United States, the Constitution marks the
boundary of powers. Whatever power is de-
posited with the Union by the people for their
own necessary security, is so far a curtailing
of the power and prerogatives of States. This
is, as it were, a self-evident proposition; at least
it cannot be contested. Thus the power of de-
elating war, making peace, raising and sup-
porting armies for public defence, levying
duties, excises and taxes, if necessary, with
many other powers, are lodged in Congress;
and are a most essential abridgment of State
sovereignty. Again; the restrictions upon
States; "No State shall enter into any treaty,
alliance, or confederation, coin money, emit bills
of credit, make anything but gold and silver a
tender in payment of debts, pass any law impair-
ing the obligation of contracts;" these with a
number of others, are important restrictions of
the power of States, and were thought neces-
sary to maintain the Union; and to establish
some fundamental uniform principles of public
justice, throughout the whole Union. So that
I think, no argument of force can be taken
from tim sovereignty of States. Where it has
been abridged, it was thought necessary for
the greater indispensable good of the whole.
If the Constitution is found inconvenient in
practice in this or any other particular, it is
well that a regular mode is pointed out for
amendment. But, while it remains, all offices
Legislative, Executive, and Judicial, both of
the States and of the Union, are bound by
oath to support it.
*One other objection has been suggest- [*469
ed, that if a State may be sued by a citizen of
another State, then the United States may be
sued by a citizen of any of the States, or, in
other words, by any of their citizens. If this
be a necessary consequence, it must be so. I
doubt the consequence, from the different
wording of the different clauses, connected
with other reasons. When speaking of the
United States, the Constitution says. "controver-
sies to which the UNITED STATES shall be a
party" not controversies between the United
States and any of their citizens. When speak-
ing of States, it says. "controversies between two
or more states; between a state and citizens of
another state." As to reason, for citizens suing
a different State, which do not hold equally
good for suing the United States; one may be,
that as controversies between a State and citi-
zens of another State, might have a tendency
to involve both States in contest, and perhaps
in war, a common umpire to decide such con-
troversies, may have a tendency to prevent the
mischief. That an object of this kind was had
in view by the framers of tim Constitution, I
have no doubt, when I consider the clashing
interfering laws which were made in the
neighboring States, before the adoption of the
Constitution, and some affecting the property
of citizens of another State in a very different
manner from that of their own citizens. But I
do not think it necessary to enter fully into the
question, whether the United States are liable to
be sued by an individual citizen, in order to
decide the point before us. Upon the whole, I
am of opinion, that the Constitution warrants a
suit against a State by an individual citizen of
another State.
A second question made in the case was,
whether the particular action of assumpsit could
lie against a State? I think assumpsit will lie,
if any suit; provided a State is capable of con-
tracting.
The third question respects the competcncy
of service, which I apprehend is good and
proper; the service being by summons and no-
tifying the suit to the Governor and the At-
torney General; the Governor, who is the Su-
preme Executive Magistrate and representative
of the State, who is bound by oath to defend
the State, and by the Constitution to give in-
formation to the Legislature of all important
mattcrs which concern the interest of the State;
the Attorney General who is bound to defend
the interest of the State in Courts of Law.
JAY, Chief Justice.--The question we are
now to decide has been accurately stated, viz.
Is a State suable by individual citizens of
another State?
It is said, that Georgia refuses to appear and
answer to the Plaintiff in this action, because
she is a sovereign State, and therefore not liable
to such actions. In order to ascertain the
470*] *merits of this objection, let us enquire,
1st. In what sense Georgia is a sovereign State.
2d. Whether suability is incompatable with
such sovereignty. 3d. Whether the Constitution
(to which Georgia is a party) authorises such an
action against her.
Suability and suable are words not in common
use, but they concisely, correctly convey the
idea annexed to them.
1st. In determing the sense in which Georgia
is a sovereign State; it may be useful to turn
our attention to the political situation we were
in, prior to the Revolution, and to the political
rights which emerged from the Revolution. All
the country now possessed 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 im-
mediately by grants from that crown. All the
people of this country were then, subjects of
the King of Great Britain, and owed allegiance
to him; and all the civil authority then existing
or exercised here, flowed from the head of the
British Empire. They were in strict sense fel-
low subjects, and in a variety of respects one
people. When the Revolution commenced,
the patriots did not assert that only the same
affinity and social connection subsisted between
the people, of the colonies, which subsisted be-
tween the people of Gaul, Britain and Spain,
while Roman Provinces, viz. only that affinity
and social connection which result from the
mere circumstances of being governed by the
same Prince; different ideas prevailed, and
gave occasion to the Congress of 1774 and 1775.
The revolution, or rather the Declaration of
Independence, found tile people already united
for general purposes, and at the same time pro-
viding for their more domestic concerns by
State conventions, and other temporary arrange-
meats. From the crown of Great Britain, the
sovereignty of their country passed to the peo-
ple of it; and it was then not an uncommon
opinion, that the unappropriated lands, which
belonged to that crown, passed not to the peo-
ple of the Colony or States within whose limits
they were situated, but to the whole people;
on whatever principles thin opinion rested, it
did not give way to the other, and thirteen
sovereignties were considered as emerged from
the principles of the Revolution, combined with
local convenience and considerations; the peo-
ple nevertheless continued to consider them-
selves, in a national point of view, as one peo-
ple; and they continued without interruption
to manage their national concerns accordingly;
afterwards, in tile hurry of the war, and in the
warmth of mutual confidence, they made a
confederation of the States, the basis of a gen-
eral Government. Experience disappointed the
expectations they had formed from it; and then
the people, in their collective and national ca-
pacity, established tim present Constitution. It
is *remarkable that in establishing it [*471
the people exercised their own rights, and their
own proper sovereignty, and conscious of the
plentitude of it, they declared with becoming
dignity, "We the people of the United States,
"do ordain and establish this Constitution.
Here we see the people acting as sovereigns of
the whole country; and in the language of
sovereignty, establishing a Constitution by
which it was their will, that the State Govern-
ments should be bound, and to which the State
Constitutions should be made to conform.
Every State Constitution is a compact made by
and between the citizens of a State to govern
themselves in a certain manners, and the Con-
stitution of the United States is likewise a com-
pact made by the people of the United States to
govern themselves as to general objects, in a
certain manner. By this great compact how-
ever, many prerogatives were transferred to the
national Government, such as those of making
war and peace, contracting alliances, coining
money, &c. &c.
If then it be true, that the sovereignty of the
nation is the people of the nation, and the resid-
uary sovereignty of each State, in the people
of each State, it may be useful to compare
these sovereignties, with those in Europe, that
we may thence be enabled to judge, whether
all the prerogatives which are allowed to the
latter, are so essential to the former. There is
reason to suspect that some of the difficulties
which embarrass the present question, arise
from inattention to differences which subsist
between them.
It will be sufficient to observe briefly, that the
sovereignties. in Europe, and particularly in
England, exist on feudal principles. That sys-
tem considers the Prince as the sovereign, and
the people as his subjects; it regards his person
as the object of allegiance, and excludes the
idea of his being on an equal footing with a
subject either in a Court of Justice or elsewhere.
That system contemplates him as being the
fountain of honor and authority; and from his
grace and grant derives all franchises, immu-
nities and privileges: it is easy to perceive that
such a sovereign could not be amenable to a
Court of Justice, or subjected to judicial con-
troul and actual constraint. It was of neces-
sity, therefore, that suability, became incom-
patible with such sovereignty. Besides, the
Prince having all the Executive powers. the
judgment of the Courts would, in fact. be only
monitory, not mandatory, to him, and a capacity
to be advised, is a distinct thing from a capacity
to be sued. The same feudal ideas run through
all their jurisprudence, and constantly remind
us of the distinction between the Prince and the
subject. No such ideas obtain here, at the Revo-
lution. the sovereignty devolved on the people:
and they are truly the sovereigns of the country,
but they are sovereigns without subjects (unless
472*] *the African* slaves among us may be so
called) and have none to govern but themselves;
the citizens of America are equal as fellow citi-
zens. and as joint tenants in the sovereignty.
From the differences existing between feudal
sovereignties and Governments founded on
compacts, it necessarily follows that their re-
spective prerogatives must differ. Sovereignty
is the right to govern: a nation or State-sovereign
is the person or persons in whom that resides.
In Europe the sovereignty is generally ascribed to
the Prince; here it rests with the people: there.
the sovereign actually administers the Govern-
ment; here, never in a single instance: our
Governors are the agents of the people, and at
most stand in the same relation to their sovereign,
in which regents in Europe stand to their sov-
ereigns. Their Princes have personal powers.
dignities, and pre-eminences, our rulers have
none but official; nor do they partake in the
sovereignty otherwise, or in any other capacity,
than as private citizens.
2d. The second object of enquiry now pre-
sents itself. viz. whether suability is compatible
with State sovereignty:
Suability, by whom? Not a subject, for in
this country there are none; not an inferior, for
all the citizens being as to civil rights perfectly
equal, there is not, m that respect, one citizen
inferior to another. It is agreed, that one free
citizen may sue another; the obvious dictates
of justice, and the purposes of society demand-
ing it. It is agreed, that one free citizen may
sue any number on whom process can be
conveniently executed; nay, in certain cases one
citizen may sue forty thousand; for where a
corporation is sued, all the members of it are
actually sued, though not personally, sued. In
this city there are forte odd thousand free citi-
zens, all of whom may be collectively sued by
any individual citizen. In the State of Delaware.
there are fifty odd thousand free citizens, and
what reason can be assigned why a free citizen
who has demands against them should not
prosecute them? Can the difference between
forty odd thousand, and fifty odd thousand
make any distinction as to right? Is it not as
easy, and as convenient to the public and par-
ties, to serve a summons on the Governor and
Attorney General of Delaware, as on the Mayor
or other Officers of the Corporation of Philadel-
phia? Will it be said, that the fifty odd thou-
sand citizens in Delaware being associated under
a State Government, stand in a rank so superior
to the forty odd thousand of Philadelphia,
associated under their charier, that although it
may become the latter to meet an individual on
an equal fooling in a Court of Justice, yet that
such a procedure would not comport with the
dignity of the former?--In this land of equal
liberty, shall forty odd thousand in one place
be compellable to do justice, and yet fifty odd
thousand in *another place be privileged [*473
to do justice only as they may think proper?
Such objections would not correspond with the
equal rights we claim: with the equality we
profess to admire and maintain, and with that
popular sovereignty in which every citizen par-
takes. Grant that the Governor of Delaware
holds an office of superior rank to the Mayor
of Philadelphia, they are both nevertheless the
officers of the people: and however more exalted
the one may be tim the other, yet in the opinion
of those who dislike aristocracy, that circum-
stance cannot be a good reason for impeding
the course of Justice.
If there be any such incompatibility as is
pretended, whence does it arise? In what does
it consist" There is at least one strong undenia-
ble fact against this incompatibility, and that is
this, any one State in the Union may sue another
State in this Court, that is, all the people of
one State may sue all the people of another
State. It is plain then, that a State may be
sued, and hence it plainly follows. that suability
and state sovereignty are not incompatible. As
one State may sue another State in this Court, it
is plain that no degradation to a State is thought
to accompany her appearance in this Court.
It is not therefore to an appearance in this
Court that the objection points. To what does
it point? It points to an appearance at the suit
of one or more citizens. But why it should be
more incompatible, that all the people of a
State should be sued by one citizen, than by one
hundred thousand, I cannot perceive, the pro-
cess in both cases being alike; and the conse-
quencesof a judgment alike. Nor can I observe
any greater inConveniences.in the one case than
in the other, except what may arise from
the feelings of those who may regard a lesser
number in an inferior light. But if any reli-
ance be made on this inferiority as an objection,
at least one half of its force is done away by
this fact, viz. that it is conceded that a State
may appear in this Court as Plaintiff against a
single citizen as Defendant; and the truth is,
that the State of Georgia is at this moment
prosecuting an action in this Court against two
citizens of South Carolina.[1]
The only remnant of objection therefore that
remains is, that the State is not bound to appear
and answer as a Defendant at the suit of an
individual: but why it is unreasonable that
she should be so bound, is hard to conjecture:
That rule is said to be a bad one, which does not
work both ways; the citizens of Georgia are
content with a right of suing citizens of other
1.--Georgia v. Brailsford,et al. Ant. 402.
States; but are not content that citizens of other
States should have a right to sue them.
Let us now proceed to enquire whether Geor-
gia has not, by being a party to the national
compact, consented to be suable by individual
citizens of another State. This enquiry natur-
474*] allv *leads our attention. 1st. To the
design of the Constitution. 2d. To the letter
and express declaration in it.
Prior to the date of the Constitution, the
people had not any national tribunal to which
they could resort for justice; the distribution of
justice was then confined to State judicatories,
in whose institution and organization the people
of the other States had no participation, and
over whom they had not the least controul.
Them was then no general Court of appellate
jurisdiction, by whom the errors of State Courts,
affecting either the nation at large or the citi-
zens of any other State, could be revised and
corrected. Each State was obliged to acquiesce
in the measure of justice which another State
might yield to her, or to her citizens; and that
even in cases where State considerations were
not always favorable to the most exact measure.
There was danger that from this source animosi-
ties would in time result; and as the transition
from animosities to hostilities was frequent in
the history of independent States, a common
tribunal for the termination of controversies
became desirable, from motives both of justice
and of policy.
Prior also to that period, the United States
had, by taking a place among the nations of the
earth, become amenable to the laws of nations;
and it was their interest as well as their duty to
provide, that those laws should be respected and
obeyed; in their national character and capacity,
the United States were responsible to foreign
nations for the conduct of each State, relative
to the laws of nations, and the performance of
treaties: and there the inexpediency of referring
all such questions to State Courts, and particu-
laxly to the Courts of delinquent States became
apparent. While all the States were bound to
protect each, and the citizens of each, it was
highly proper and reasonable, that they should
be in a capacity, not only to cause justice to be
done to each, and the citizens of each; but also
to cause justice to be done by each, and the
citizens of each; and that, not by violence and
force, but in a stable, sedate, and regular course
of judicial procedure.
These were among the evils against which it
was proper for the nation, that is, the people of
all the United States, to provide by a national
Judiciary, to be instituted by the whole nation,
and to be responsible to the whole nation.
Let us now turn to the Constitution. The
people therein declare, that their design in
establishing it, comprehended six objects. 1st.
To form a more perfect union. 2d. To estab-
lish justice. 3d. To ensure domestic tranquillity.
4th. To provide for the common defence.
5th. To promote the general welfare. 6th. To
secure the blessings of liberty to themselves and
their posterity. It world be pleasing and
useful to consider and trace the relations which
each of these objects bears to the others;
475*] *and to shew that they collectively com-
prise every thing requisite, with the blessing of
Divine Providence, to render a people prosperous
and happy: on the present occasion such dis-
quisitions would be unreasonable because
foreign to the subject immediately under con-
sideration.
It may be asked, what is the precise sense
and latitude in which the words "to establish jus-
tice," as here used, are to be understood? The
answer to this question will result from the pro-
visions made in the Constitution on this head.
They are specified in the 2d. section of the 3d
article, where is ordained, that the judicial pow-
er of the United States shall extend to ten de-
scriptions of cases, viz. 1st. To all cases arising
under this Constitution; because the meaning,
construction, and operation of a compact ought
always to be ascertained by all the parties, or by
authority derived only from one of them. 2d.
To all cases arising under the laws of the United
States; because as such laws constitutionally
made, are obligatory on each State, the measure
of obligation and obedience ought not to be de-
cided and fixed by the party from whom they
are due, but by a tribunal deriving authority
from both the parties. 3d. To all cases arising
under treaties made by their authority; because,
as treaties are compacts made by, and obliga-
tory on, the whole nation, their operation ought
not be affected or regulated by the local laws or
Courts of a part of the nation. 4th. To all
cases affecting Ambassadors, or other public
Ministers and Consuls; because, as these are offi-
cers of foreign nations, whom this nation are
bound to protect and treat according to the
laws of nations, cases affecting them ought only
to be cognizable by national authority. 5th. To
all cases of Admiralty and Maritime jurisdiction;
because, as the seas are the joint property of na-
tions, whose right and privileges relative thereto,
are regulated by the law of nations and treaties,
such cases necessarily belong to national juris-
diction. 6th. To controversies to which the
United States shall be a party; because in cases
in which the whole people are interested, it
would not be equal or wise to let any one State
decide and measure out the justice due to others.
7th. To controversies between two or more
States: because domestic tranquillity requires,
that the contentions of States should be
peaceably terminated by a common judicatory;
and, because, in a free country justice ought
not to depend on the will of either of the liti-
gants. 8th. To controversies between a State
and citizens of another State: because in case a
State (that is all the citizens of it) has demands
against some citizens of another State, it is bet-
ter that she should prosecute their demands in a
national Court, than in a Court of the State to
which those citizens belong; the danger of irri-
tation and criminations arming from apprehen-
sions and *suspicions of partiality, be- [*476
ing thereby obviated. Because, in eases where
some citizens of one State have demands against
all the citizens of another State, the cause of
liberty and the rights of men forbid, that the
latter should be the sole Judges of the justice
due to the latter; and true Republican Govern-
ment requires that free and equal citizens should
have free, fair, and equal justice. 9th. To con-
troversies between citizens of the same State,
claiming lands under grants of different States;
because, as the rights of the two States to grant
the land, are drawn into question, neither of the
two States ought to decide the, controversy.
lOth. To controversies between a State, or the
citizens thereof; and foreign States, citizens or
subjects; because, as every nation is responsible
for the conduct of ils citizens towards other na-
tions; all questions touching the justice due to
foreign nations, or people, ought to be ascer-
tained by, and depend on national authority.
Even this cursory view of the judicial powers
of the United States, leaves the mind strongly
impressed with the importance of them to the
preservation of the tranquillity, the equal sov-
ereignity, and the equal right of the people.
The question now before us renders it neces-
sary to pay particular attention to that part of
the 2d section, which extends the judicial pow-
er "to controversies between a State and citizens
"of another state." It is contended. that this
ought to be construed to reach none of these
controversies. excepting those in which a State
may be Plaintiff. The ordinary rules for con-
struction will easily decide whether those words
are to be understood in that limited sense.
This extention of power is remedial, because
it is to settle controversies. It is therefore. to
be construed liberally. It is politic. wise. 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.
It we attend to the words, we find them to be
express, positive, free from ambiguity, and
without room for such implied expressions:
"The judicial power of the United States shall
"extend to controversies between a state and citi-
"zens of another state." If the Constitution real-
ly meant to extend these powers only to those
controversies in which a State might be Plaint-
iff, to the exclusion of 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 ap-
477*] pears in *any part of the Constitution.
It cannot be pretended that where citizens urge
and insist upon demands against a State, which
the State refuses to admit and comply with,
that there is no controversy between them. If it is
a controversy between them. then it clearly falls
not only within the spirit. but the very words
of the Constitution. What is it to the cause of
justice, and how can it affect the definition of
the word controversy, whether the demands
which cause the dispute, are made by a State
against citizens of another State, or by the lat-
ter against the former? When power is thus
extended to a controversy, it necessarily, as to
all judicial purposes, is also extended to those,
between whom it subsists.
The exception contended for, would contra-
dict and do violence to the great and leading
principles of a free and equal national govern-
ment, 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, so 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 sub-
sequent clause; in which the Constitution or-
dains, that "in all cases affecting Ambassadors,
"other public Ministers and Consuls, and those
"it 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 arc to be under-
stood 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 im-
pliedly or expressly apply that term to either
of the litigants, in particular, we arc to under-
stand them as speaking of both. In the same sec-
tion they distinguish the cases where Ambassa-
dors are Plaintiffs, from those in which Am-
bassadors 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 appre-
hended that the Constitution had made any dif-
ference between them.
*I perceive, and therefore candor [*478
urges me to mention, a circumstance, which
seems to favor the opposite side of the question.
It is this: the same section of the Constitution
which extends tim judicial power to controversies
"between a State and the citizens of another
State," does also extend that power to contro-
versies to which the United States are a party.
Now, it may be said, if the word party com-
prehends both Plaintiff and Defendant, it fol-
lows, that the United States may be sued by
any citizen, between whom and them there may
be a controversy. This appears to me to be fair
reasoning; but the same principles of candour
which urge me to mention this objection, also
urge me to suggest an important difference be-
tween the two cases. It is this: in all cases of
actions against States or individual citizens, the
National Courts arc supported in all their legal
and Constitutional proceedings and judgments,
by the arm of the Executive power of the
United States; but in cases of actions against
the United States, there is no power which the
Courts can call to their aid. From this distinc-
tion important conclusions are deducible, and
they place the case of a State and the case of
the United States, in very different points of
view.
I wish the State of society was so far im-
proved, and the science of Government ad-
vanced 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 ease, ought not to be thus collater-
ally and incidentally decided: I leave it a ques-
tion.
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 busi-
ness of the day; I fear it is less concise and
connected than it might otherwise have been.
1 have made no references to cases, because I
know of none that are not distinguishable from
this case: 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 form-
er 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, under-
stood. 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 acquies-
cence which it merits. Georgia has in strong
language advocated the cause of republican
479*] equality: and there is reason to *hope
that the people of that State will yet perceive
that it would not have been consistent with that
equality, to have exempted the body of her
citizens from that suability, which they are at
this moment exercising against citizens of
another Stale.
For my own part, I am convinced that the
sense in which I understand and have explain-
ed 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 wise, because it is honest, anti 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 occa-
sions 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 mil-
lion to one man; because it teaches and greatly
appreciates the value of our free republican na-
tional 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 consequently that fellow citi-
zens and joint sovereigns cannot be degraded by
appearing with each other in their own Courts
to have their controversies determined. The
people have reason to prize and rejoice in such
valuable privileges; and they ought not to for-
get, that nothing but the free course of Consti-
tutional 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 lest I should be understood in
a latitude beyond my meaning, I think it neces-
sary to subjoin this caution, viz. That such su-
ability 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 established, and which
Were issued and received on the faith of the
State, and at a time when no ideas or expecta-
tions of judicial interposition were entertained
or contemplated.
*The following order was made:--BY [*480
THE COURT. 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 dec-
laration be served on the Governor and Attorney
General of the State of Georgia, on or before
the first day of June next.
Ordered, that unless the said State shall either
in due form appear, or show cause to the con-
trary in this Court, by the first day of next
Term, judgment by default shall be entered
against the said State.[1]
Cited. 2 Dall. 415. note: 1 Pet. 122.
3 id. 466: 5 id. 289:
11 id. 321: 12ø id. 761:
4 How. 149: 5 id. 489:
17 Id. 579: 24 id. 96: 7 Bank. Reg. 266. 7:
1 Mod. J. M. 408:1 Dill. 259:
1 Abb. U.S. 52.
The authority of this case was abrogated by an
amendment. Article 11 of the constitution U.S.,
which provides that "the Judicial power of the
United States shall not be construed to extend,
to any suit in law or equity commenced or prose-
cuted against one of the United States by cit-
izens of another State, or by citizens or subjects
of any foreign State."
This amendment was proposed Dec. 2., 1793, de-
clared adopted Jan. 8, 1798.
AUGUST TERM, 2793.
THE Court being met, a commission appoint-
ing WILLIAM PATERSON, one of the Jus-
tices, bearing date the 4th of March, 1793, was
read; and he was qualified according to law.[2]
l.--In February Term. 1794. Judgment was ren-
dered 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 onee from the
Records of the Courr, by the amendment to the
Federal Consitution, agreeably to the unanimous
determination of the Judges, in Hollingsworth et al.
v. Virginia, argued at February Term, 1798.
2.--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.
# # #
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Chisholm v. Georgia