U.S. Supreme Court Chisholm v. Georgia, 2 U.S. 2 Dall.
419 419 (1793) Chisholm v. Georgia 2 U.S. (2 Dall.) 419 Page
2 U. S. 429 Iredell, Justice. This great cause comes before the Court
on a motion made by the Attorney 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 show 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
important 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 plaintiff, it
would have been our duty, previous to our giving judgment, to have
well Page
2 U. S. 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 consideration I have been
able to bestow on the subject, and the most respectful attention to
the able argument of the Attorney General, I am now decidedly of
opinion that no such action 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 myself embarrassed on this
very subject until I considered the abstract question itself. The
Attorney General has spoken to it, in reference to my request, as
he has been pleased to intimate, but he spoke to this particular
question slightly, conceiving it to be involved in the general one;
and after establishing, as he thought, that point, he seemed to
consider the other followed 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 question: can a State assume? But the Attorney General must
know that, in England, certain judicial proceedings not
inconsistent with the sovereignty may take place against the Crown,
but that an action of assumpsit will not lie. Yet surely 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 show 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 everything I have to say upon it will effect every
kind of suit the object of which is to compel the payment 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
Constitution concerning the Judicial Power is as follows, viz: "Art.3. sect. 2. The Judicial Powser
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 controversies to which
the Page
2 U. S. 431 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 different 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. 2nd.
Controversies between a State and citizens of another State. 3rd.
Controversies between a State, and foreign states, citizens, or
subjects. And it also provides that, in all cases in which a State
shall be a party, the Supreme Court shall have original
jurisdiction. The words of the general Judicial Act
conveying 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 jurisdiction 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, exclusively, all
jurisdiction of suits or proceedings 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 original, but not exclusive jurisdiction of all suits
brought by Ambassadors, or other public Ministers, or in 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. 2nd Between a State and a foreign
state. 3rd. Where a suit or proceeding is depending against
Ambassadors, other public ministers, or their domestics, or
domestic servants. Second. Original, but not exclusive
jurisdiction. 1st. Between a State and citizens of other States.
2nd. Between a State and foreign citizens or subjects. 3rd. 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 jurisdiction
in any of these cases, but in respect to the subject matter upon
which such jurisdiction is to be exercised, uses the word
"controversies" only. The act of Congress more particularly
mentions civil controversies, a qualification of the general word
in the Constitution which I do not doubt every reasonable man will
think well warranted, for it Page
2 U. S. 432 cannot be presumed that the general
word "controversies" was intended to include any proceedings that
relate to criminal cases, which, in all instances 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 justify 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 individual? 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 execution 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 antecedent
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 consider it 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 different. I conceive that all the courts of the United
States must receive not merely their organization as to the number
of judges of which they are to consist; but all their authority 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 execution the foregoing
Powers, and all other 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
not nominate a number at their Page
2 U. S. 433 discretion. 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
necessary 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
obligation to the other, we must unquestionably obey that in
preference. Subject to this restriction, the whole business of
organizing the Courts, and directing the methods of their
proceeding 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 remedies now in being are defective for any purpose 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
Constitution into effect. It is ours only to judge. We have no
reason, nor any more right, to distrust 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 authorises 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, supply their
omission by making new laws for new cases -- or, which I take to be
the same thing, applying old principles to new cases materially
different from those to which they were applied before. With regard to the Attorney General's
doctrine of incidents, that was founded entirely on the supposition
of the other I have been considering. The authority contended for
is certainly 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 manner of its proceeding, we
must receive our directions from the legislature in this
particular, and have no right to constitute ourselves an ossicina brevium, 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
altogether 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 fiere
facias, habeas corpus, and all other writs not specially
provided for by statute, which may be necessary for the exercise of
their respective Page
2 U. S. 434 jurisdictions, and agreeable 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. Whatever
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 direction, I apprehend, we cannot supersede because it
may appear to us not sufficiently extensive. 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 chuse 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, referred 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 another case
reprobated with so much warmth, and with whose sentiments in that
particular I most cordially join. The principles of law to which
references is to be had either upon the general ground I first
alluded to, or upon the special words I have above cited from the
Judicial Act, I apprehend, can be either, 1st. those of the
particular laws of the State against which the suit is brought, or,
2nd., principles of law common to all the States. I omit any
consideration arising from the word "usages," though 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 laying 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 wherein no such remedy was admitted, or which would require,
perhaps, if the principle was received, fifteen different methods
of proceeding against States, all standing in the same political
relation to the general Government, and none having any pretence to
a distinction in its favor, or justly liable to any distinction to
its prejudice. If any such difference existed in 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 legislative mode, authorizing a compulsory suit for
the recovery of money against a State, was in being either when the
Constitution Page
2 U. S. 435 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 properly termed "the common law," a law which I presume is
the groundwork 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 controls
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 England 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 consider to be as completely
sovereign as the United States are in respect to the powers
surrendered. The United States 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,
because the United States have no claim to any authority but such
as the States have surrendered to them. Of course, the part not
surrendered must remain as it did before. The powers of the general
Government, either of a legislative or Executive nature, or which
particularly concerns treaties with foreign powers, 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 indeed commensurate with the ordinary legislative and executive
powers of the General Government, and the power which concerns
treaties. But is 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
authority in regard to such Page
2 U. S. 436 subjects of 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 legally 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
externals 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
part, 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 preexistent laws or laws
passed under the Constitution and in conformity to it. Whatever be the true construction of
the Constitution 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 individual, 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
proceeding, 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 exercised in some other court. There are no courts with which
such a concurrence can be suggested 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, however, such a jurisdiction, by the very terms of their
authority, could be only concurrent with the courts of the several
States. It follows, therefore, unquestionably, I think, that
looking at the act of Congress, which I consider is on this
occasion the limit of our authority (whatever further might be
constitutionally, enacted), we can exercise no authority in the
present instance Page
2 U. S. 437 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 preexistent laws,
which must remain in force till superseded by others, then it is
incumbent 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 shown to be alone
applicable. If it could, I think it is now maintainable 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 I presume it will not be denied that, in
every State in the Union, previous to the adoption of the
Constitution, the only common law principles in regard 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, apply 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 England, or could be at any period from which the common
law, as in force in America, could be derived, 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 I, the King might have
been sued in all actions as a common 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 petition."
This appears to be a quotation or abstract from Theloall'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, I 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 celebrated argument of
Lord Page
2 U. S. 438 Somers, in the time of W. III., for,
though that case was ultimately decided against Lord Somers'
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 published 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 growing 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
relieve the Bankers, in 1677, granted annuities to them, out of the
hereditary Excise, equal to 6 percent interest on their several
debts, but redeemable on payment of the principal. This interest
was paid 'till 1683, but it then became in arrears, 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
payment 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, whether 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. Baron Lechmore differed
from the other Barons by thinking that this particular revenue of
the Excise 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 General 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 Barons of the Exchequer were not
authorised 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 Page
2 U. S. 439 opinion, in opposition 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 assistants 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 opinions of the judges, and therefore that the
Lord Keeper in the case in question, there being then no Lord
Treasurer, might give judgment according to his own opinion. Lord
Somers concurring in this idea, reversed the judgment of the Court
of Exchequer. But the case was afterwards 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 annuities granted to the
Bankers and all arrears, the hereditary Excise should, after the
26th of December 1601, be 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, 3. Upon perusing the whole of this case,
these inferences naturally follow: 1st. That admitting 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. 2nd. 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. 3rd. That such an authority could not have been
exercised by any other court in Westminster Hall, or by any court
that, from its particular 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. Hargrave's Case, 45, 89. Consequently, no such remedy
could, under any circumstances, I apprehend, be allowed in any of
the American States, in none of which it is presumed 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 by Page
2 U. S. 440 Lord C. Baron Comyns in his digest. 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 hundred pounds in the
procuring of records relative to their 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 ancient 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; in all cases, the remedy to
come at it was by petition to the person of the King; and no other
method can be shown to have been practised 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, or to show his own
right, he comes in the nature of a defendant, and is admitted to
interplead in the case with the King in defense of his title, which
otherwise would be defeated by finding the office. And to show that
this was so, I would take notice of several instances. That, in
cases of debts owing by the Crown, the subject's remedy was by
petition appears by Aynesham's Case, Ryley 251, which is a
petition for 19. due for work done at Carnarvon castle. So Ryley
251. The executors of John Estrateling petition for 132. due to the
testator for wages. The answer is remarkable, for there is a
latitude taken, which will very well agree with the notion that is
taken up in this case; Habeant bre. de liberate in Canc. thes.
& camerar. de 32. in partem solutionis. So the case of Yerward de Galeys, for 56. 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 thesaurarii & baronum de
scaecario, quod satisfiet iis quam citius fieri poterit; ita quod
contertos se tenebunt. And this is an answer given to a
petition " brk: presented to the King in Parliament,
and therefore we have reason to conclude it to be warranted by law.
They must 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 impowered to act.
Nor can Page
2 U. S. 441 any such 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 annuities,
granted by the King or his progenitors to be paid when the person
applied to them for such payment. But perhaps it may be objected
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 objection. All
these petitions which I have mentioned 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 Chancellor; those which touch the Exchequer, to the
Exchequer; and those which touch the Justices, or the law of the
land, should come to the Justices; and if the business be so great,
or st de grace that the Chancellor, or others, cannot do
them without the King, then the petitions shall be brought before
the King to know his pleasure, so that no petitions come before the
King and his Council but by the hands of the Chancellor, and other
chief Ministers; that the King and his Council may attend 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 the King or
Parliament after this time, and answered there, were brought
according 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 ousted, 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 chattels, 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, admitting there was any
doubt as to that point, in the present suit, we are in the case of
a freehold." Lord Somers' argument in Hargrave's
Case of the Bankers, 103 to 105. The solitary case, noticed at the
conclusion of Lord Somers' argument, "that a petition will not lie
of a chattel," certainly Page
2 U. S. 442 is deserving 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
established law. In Comyns' Dig. 4 Vol. 458, it is said expressly
"suit shall be to the King by petition, for goods as well as for
land." He cites Staundf.Prar. 75. b. 72. b. for his authority, 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 Commentaries, 3 Vol. 256,
where he 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 property, and says expressly the
petition of right "is of use where the King is in full
possession of any hereditaments or chattels, and the petitioner
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, everything concerning 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 overruled in that particular. As
to all others, I consider the authorities on which he relied, and
his deduction from them, to be unimpeached. Blackstone, in the first volume of his
commentaries (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 administer 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 continues 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 upon 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 sait al partie (let right be done to the party), upon which, unless the Attorney
General 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 liberty to Page
2 U. S. 443 plead in bar, and the merits shall be
determined upon issue or demurrer, as in suits between subject and
subject. If the Attorney 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 Commentaries 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
voluminous search, discovered a variety of other answers to what he
considered were unquestionable 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 petition,
sometimes from the nature of the 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 fait al partie, it must be delivered
to the Chancellor of England, and then a commission was to go to
find the right of the party, and that being found, so that there
was a record so rhim, thus warranted, he is let in to interplead
with the King; but if the indorsement was special, then the
proceeding was to be according to the indorsement in any other
Court. This is fully explained by Stamford (Staundfort) in his
treatise of the Prerog. c. 22. The case Mich. 10 H. 4.4.no. 8. is
full as to this matter. The King recovers in a quare
impedit by default against one who was never summoned; the
party cannot have a writ of deceit without a petition. If then,
says the book, he concludes his petition generally ' 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 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, before 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 commission, or any writ to be sued
out; the petition and answer indorsed giving a sufficient
jurisdiction to the Court to which it was directed. 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 remarking a
very extraordinary difference in the case belonging to the revenue,
in regard to which he said, he thought there was not an instance to
be found where petitions were answered, soit droit fait aux
parties (let right be done Page
2 U. S. 444 to the parties). The usual reference
appears to have been to the Treasurer and Barons, commanding them
to do justice. Sometimes 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 Bankers, 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, being 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 Macbeath against Haldimand, reported first Durnford
& 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 defence 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 Government, and the defendant not having undertaken
personally to pay, he was not liable. This defence was set up at
the trial on the plea of the general issue, and the jury, by judge
Buller's direction, 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 nonsuited; "but the plaintiff's counsel appearing
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 demands 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. 2ndly. 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 not feel it necessary for
them to give any opinion on the second ground. His Lordship 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 in Page
2 U. S. 445 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 particular purposes, and now, whoever advances money for the
public service trusts to the faith of Parliament. That, according
to the tenor of Lord Somers' argument in the Bankers Case, though a petition of right would lie, yet it would probably produce
no effect. No benefit 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 subject 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 political capacity for the 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 expenditure for his own private occasions, probably no material
distinction at that time existed, or could easily be made. A very
important distinction may however perhaps now subsist between the
two cases, for the reasons intimated by Lord Mansfield; since the
whole support of Government depends now on Parliamentary
provisions, 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 petition, 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 doubtful whether that remedy will lie; and if it will, it
remains afterwards in the power of Parliament to provide for it or
not among the current supplies of the year. Now let us consider the case of a debt
due from a State. None can, I apprehend, be directly claimed but in
the following instances. 1st. In case of a contract with the
legislature itself. 2nd. In case of a contract with the Executive,
or any other person, in consequence of an express authority from
the legislature. 3rd. 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 alone. Every man
must know that no suit can lie against a legislative body. His
only Page
2 U. S. 446 dependence therefore can be that the
legislature, on principles of public duty, will make a provision
for the execution of their own contracts, and if that fails,
whatever reproach 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 Parliament, 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 England. The
Crown there has very high prerogatives, 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 prerogatives; without power
to effect one shilling of the public money, but as he is authorised
under the Constitution, or by a particular law; having no colour to
represent the 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 authorised, 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 the 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 legislative
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 expressly waved. But as it may
be Page
2 U. S. 447 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. 2nd. That, according to the principles I have supported 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. 3rd.
That, as it is evident the act of Congress has not made any special
provision in this case, grounded on any such construction, 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 ancient
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 ancient 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 everything 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 reference is
to be had is the common law of England on that subject. I need not
repeat the observations I made in respect to the operation of that
law in this country. The word "corporations," in its largest sense,
has a more extensive meaning than people generally are aware of.
Any body politic (sole or aggregate), whether its power be
restricted or transcendant, is in this sense "a corporation." The
King, accordingly, in England is called a corporation. 10 Co. 29b.
So also, by a very respectable author (Sheppard, 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 "corporations." I have
therefore, in contradistinction to this large and
indefinite Page
2 U. S. 448 term, 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 Parliament; 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 necessarily 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 derives its
authority from the same pure and sacred source as itself: the
voluntary and deliberate choice of the people. 2nd. 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 instances where the general Government has power
derived from the Constitution itself. 3rd. A corporation is
altogether dependant on that Government to which it owes its
existence. Its charter may be forfeited by abuse. Its authority 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 independent upon it. The people of the State
created, the people of the State can only change, its Constitution.
Upon this power there is no other limitation but that imposed by
the Constitution of the United States: that it must be of the
Republican form. I omit minuter distinctions. 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 certainly 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 afford a reason for a new law, Page
2 U. S. 449 calculated to effectuate the powers of
the General Government in this new case. But it affords no reason
whatever for the Court's 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 appointing courts and prescribing their
methods of proceeding. 2nd. That Congress has provided no new law
in regard to this case, but expressly referred us to the old. 3rd.
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 be 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
reference 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 examples 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 questions which it is unnecessary 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 improper to
intimate that my present opinion is strongly against any
construction of it which will admit, under any circumstances, a
compulsive suit against a State for the recovery of money.
I Page
2 U. S. 450 think every word in the Constitution
may have its full effect without involving this consequence, and
that nothing but express words, or an insurmountable implication
(neither of which I consider, can be found in this case) would
authorise the deduction 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 deemed in some measure
extrajudicial. With regard to the policy of maintaining such suits,
that is not for this Court to consider, 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 established by the judgment of this Court, all the good
he predicts 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 important 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 adoption 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? Undoubtedly it
is, unless it may be a sufficient denial to say that it is a
controversy between a citizen 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 jurisdiction of this Court reaches the case where a State is
plaintiff, but not where it is defendant? In this latter case,
should any man be asked whether it was not a controversy between a
State and citizen of another State, must not the answer be in the
affirmative? A dispute between A. and B. as surely a dispute
between B. and A. Both cases, I have no doubt, were intended; and
probably the State was first named, Page
2 U. S. 451 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 unequivocally asserted when the judicial
power of the United States is extended to controversies between two
or more States; for there, a State must, of necessity, be a
defendant. It is extended 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 instances,
in the case where a State shall be a party; but is not a State a
party as well brk: in the condition of a defendant as in
that of a plaintiff? 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
renounce 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 questionable on the ground that Congress has not
provided 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 Constitution. 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 Page
2 U. S. 452 of the Judicial Law, we meet
difficulties 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 apprehension of coercion, to carry into
execution a judgment 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 extrajudicial? 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 adopting the Constitution, has agreed to be
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
Governor being the head of the Executive Department and the
Attorney General the law officer who generally represents the State
in legal proceedings. 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 * 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 Page 2 U. S. 453 be too precipitate 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,
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 thus:

															"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."

															* Som, Sup. c. 3.

															Wilson, Justice.

															This is a case of uncommon 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 jurisdiction of
the Supreme Court of the United States? This 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. 2nd. 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, the 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. 3rdly. and chiefly, I shall examine the
important question before us by the Constitution of the United
States, and the legitimate result of that valuable instrument.

															1. 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 era not less remarkable, and far more
illustrious, than that formed by the justly celebrated Bacon in
another science, not prosecuted with less ability, but less
dignified as to its object; I mean the philosophy of matter. Dr.
Reid, in his excellent enquiry into the human mind, on the
principles of common sense, speaking of the sceptical and
illiberal Page 2 U. S. 454 philosophy, which under bold but false pretentions to
liberality, prevailed in many parts of Europe before he wrote,
makes the 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 yet will fit very
aukward upon one of a different make, although as 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 meaning to those that are
received."

															With equal propriety may this 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
frequently 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 the 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, mence 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 even 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 the 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, Page 2 U. S. 455 which I make of the latter. In doing this, I shall have occasion
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 vilified, 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 importance. When I speak of
a state as an inferior contrivance, I mean that it is a contrivance
inferior only to that which is divine. Of all human contrivances,
it is certainly most transcendantly excellent. It is concerning
this contrivance that

															Cicero says so sublimely,

															"Nothing, which is exhibited upon our globe is more acceptable
to that divinity which governs the whole universe than those
communities and assemblages of men which, lawfully associated, are
denominated states. [ Footnote
1 ]"

															Let a state be considered as subordinate to the people. But let
everything else be subordinate to the state. The latter part of
this position is equally necessary with the 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
concerning sovereignty owe their existence. The ministers,
dignified very properly by the appellation 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 begins 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
has its rules; it has its rights; and it has its obligations. It
may acquire property distinct from that of its members. It may
incur debts to be discharged out of the public stock, not out of
the private fortunes of individuals. It may be bound by contracts,
and for damages arising from the breach of those contracts. In all
our contemplations, however, concerning this Page 2 U. S. 456 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 a 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 are 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 reason, I believe, why a free man is bound by
human 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 authorised by those laws. If
one free man, an original sovereign, may do all this, why may not
an aggregate of free men, a collection of original sovereigns, do
this likewise? If the dignity of each singly is undiminished, the
dignity of all jointly must be unimpaired. A state, like a
merchant, 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, Proteus-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 general principles of right and equality be sustained by a just
and impartial tribunal, the person, natural or artificial, entitled
to make such claim should certainly be well known and
authenticated. Who, or what, is a sovereignty? What is his or its
sovereignty? On this subject, 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 "sovereign" has for its correlative
"subject." In this sense, the term can receive no application, for
it has no object in the Constitution of the United states. Under
that Constitution, there are citizens, but no subjects. "Citizen of
the United states." [ Footnote
2 ] "Citizens of another state." "Citizens of different states."
"A state or citizen thereof." [ Footnote 3 ] The term, subject,occurs, indeed, once in the
instrument; but to mark the contrast strongly, the epithet
"foreign" [ Footnote 4 ] is
prefixed. In this sense, I presume the state of Georgia has no
claim upon Page 2 U. S. 457 her own 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, [ Footnote 5 ] every state, which governs itself
without any dependence on another power is a sovereign state.
Whether, with regard to her own citizens, this is the case of the
state of Georgia; whether those citizens have done, as the
individuals of England are said by their late instructors to have
done, surrendered the supreme power to the state or government, and
reserved nothing to themselves; or whether, like the people of
other states, and of the United states, the citizens of Georgia
have reserved the supreme power in their own hands, and on that
supreme power have made the state dependent, instead of being
sovereign -- these are questions to which, as a judge in this
cause, I can neither know nor suggest the proper answers, 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
principle -- 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 surrender the supreme or sovereign power to that
state, but, as to the purposes of the Union, retained 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 furnishes a basis for what I presume to be one of
the principal objections against the jurisdiction 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 system so
degrading to man, still retains its influence over our sentiments
and conduct, though the cause by which that influence was produced
never extended to the American states. The accurate and well
informed President Henault, in his excellent chronological
abridgment of the History of France, tells us that, about the end
of the 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, Page 2 U. S. 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. 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 introduced by the conqueror, and to
this era 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 from jurisdiction
over him. With regard to him, there was no superior power, and
consequently, on feudal principles, no right of jurisdiction.

															"The law, says Sir William Blackstone, [ Footnote 6 ] ascribes to the King the attribute of
sovereignty; he is sovereign and independent within his own
dominions, and owes no kind of objection 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 unwearied assiduity and
care. Of this plan, the author of the Commentaries was, if not the
introducer, 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 this side of the Atlantic, been implicitly and
generally received by those who neither examined their principles
nor their consequences. The principle is that all human law must be
prescribed by a superior. This principle 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 founded on the 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 composure. I have considered the nature of
sovereignty, and pointed its application to the proper object. I
have examined the question before 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 everything to have a contrary tendency. Page 2 U. S. 459 II. I am, in the second place, to examine this question by the
laws and practice of different states and Kingdoms. In ancient
Greece, as we learn from Isocrates, whole nations defended their
rights before crowded tribunals. 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
language, equally susceptible of strength and harmony. 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 between the present plaintiff and defendant no such unequal
relation is alleged to exist.

															Columbus achieved the discovery of that country which, perhaps
ought to bear his name. A contract made by Columbus furnished the
first precedent for supporting, in his discovered country, the
cause of injured merit against the claims and pretentions of
haughty and ungrateful power. His son Don Diego wasted two years in
incessant but fruitless solicitation at the Court of Spain for the
rights which descended to him in consequence of his father's
original capitulation. He endeavoured, at length, to obtain by a
legal sentence what he could not procure from the favour of an
interested 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, decided
against the King, and sustained Don Diego's claim. [ Footnote 7 ]

															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. [ Footnote 8 ]

															But of all the laws and institutions relating to the present
question, none is so striking as that described by the famous
Hottoman, in his book entitled Francogallia. When the Spaniards of
Arragon elect a King, they represent a kind of play, and introduce
a personage whom they dignify by the name of LAW, la
Jusliza, 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 Page 2 U. S. 460 than you can do, elect you to be our King upon the conditions
stipulated. But between you and us, there is one of greater
authority than you. [ Footnote
9 ]"

															In England, according to Sir William Blackstone, 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 Edward Coke to have been
written in part, at least, before the conquest; under that
government, 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 the people. [ Footnote
10 ] 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
imperative. " Pracipe Henrico Regi Anglia, " etc. "Command
Henry King of England" etc. [ Footnote 11 ] Bracton, who wrote in the time of Henry III,
uses these very remarkable expressions concerning 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." [ Footnote 12 ] True it is that now, in England, the King
must be sued in his courts by petition, but even now, the
difference is only in the form, not in the thing. The judgments or
decrees of those courts will substantially be the same upon a
precatory as upon a mandatory 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. [ Footnote 13 ] 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 person. 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 derived from the
Crown. [ Footnote 14 ]"

															"Judges ought to know that the poorest peasant is a man as well
as the King himself; all men ought to obtain justice, since, in the
estimation of justice, all men are equal, whether the Prince
complain of a peasant, or a peasant complain of the Prince.
[ Footnote 15 ]"

															These are the words of a King, of the late Frederic of Prussia.
In his courts of justice, that great man stood Page 2 U. S. 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 favour 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 legitimate 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 vested such
jurisdiction in this Court? I have already remarked that, in the
practice, and even in the science, of politics, there has been
frequently a strong current against the natural order of things,
and an inconsiderate or an interested disposition to sacrifice the
end to the means. This remark deserves a more particular
illustration. Even in almost every nation which has been
denominated free, the state has assumed a supercilious preeminence
above the people who have formed it. Hence the haughty notions of
state independence, state sovereignty and state supremacy. In
despotic governments, the government has usurped, in a similar
manner, both upon the state and the people. Hence all arbitrary
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, in politics, and
in common life. One of them is drawn from an anecdote which is
recorded concerning Louis XIV, who has been stiled the grand
Monarch of France. This Prince, who diffused around him so much
dazzling splendour and so little vivifying heat, was vitiated by
that inverted manner of teaching and of thinking, which forms Kings
to be tyrants, without knowing or even suspecting that they are so.
The oppression under which he held his subjects during the whole
course of his long reign proceeded 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 undelegated inheritance. These
sentiments were so deeply and strongly imprinted on his mind that
when one of his Ministers represented to him the miserable
condition 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 frequent repetition of
the expression L'Etat, and Page 2 U. S. 462 complained of it is as an indecency offered to his person and
character. And, indeed that Kings should

															brk:

															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 principles,
which necessarily lead to the same conclusion. Another instance,
equally strong, but still more astonishing, is drawn from the
British government, as described by Sir William Blackstone 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 Parliament, therefore, the supreme and absolute
authority is vested. [ Footnote
16 ] In the Parliament resides that incontrolable and despotic
power which, in all governments, must reside somewhere. The
constituent parts of the Parliament are the King's Majesty, the
Lord's Spiritual, the Lord's Temporal, and the Commons. The King
and these three Estates together form the great corporation or body
politic of the Kingdom. All these sentiments are found; the last
expressions are found verbatim [ Footnote 17 ] in the commentaries upon the laws of
England. [ Footnote 18 ] The
Parliament form the great body politic of England! What, then, or
where, are the People? Nothing! Nowhere! They are not so much as
even the "baseless fabric of a vision!" From legal contemplation
they totally disappear! Am I not warranted in saying that, if this
is a just description, a government, so and justly so described, is
a despotic government? Whether this description is or is not a just
one is 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 expressions 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.
A state I cheerfully fully Page 2 U. S. 463 admit, is the noblest work of Man. But, Man himself, free and
honest, is, I speak as to this world, the noblest work of God.

															Concerning the prerogative of Kings, and concerning the
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 associations
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 the
names of their different Kings or Princes. But when he comes to the
Athenians, he distinguishes them by the peculiar appellation of the
PEOPLE [ Footnote 19 ] 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 were the citizens of thirteen states, each of which had a
separate constitution and government, 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 authority. 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, ordained 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 founded
myself are just and true, this question must unavoidably receive an
affirmative answer. If those states were the work of those people,
those people, and that I may apply the case closely, the people of
Georgia, in particular, Page 2 U. S. 464 could 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 transfer. 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 Constitution, 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
citizens. 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, however, appears to be altogether unfounded. When certain
laws of the states are declared to be "subject to the revision and
controul of the Congress," [ Footnote 20 ] it cannot, surely, be contended that the
legislative power of the national government was meant to have no
operation on the several states. The fact, uncontrovertibly
established 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 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 bind 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. " [ Footnote 21 ] "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 are
enforced immediately by the Page 2 U. S. 465 executive authority of government. When the application of them
is doubtful or intricate, the interposition of the judicial
authority becomes necessary. The 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 deduction, then, evinces that the people of the United
states did vest this court with jurisdiction over the State of
Georgia. The same truth may be deduced from the 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 than,
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 this
legislative power should be enforced by powers executive and
judicial. Another declared object 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 declared object is "to ensure
domestic tranquillity." This tranquillity is most likely to be
disturbed by controversies 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
exercise and establishment, the law of nations, the rule between
contending states, will be enforced among the several states in the
same manner as municipal law.

															Whoever considers, in a combined and comprehensive view, the
general texture of the Constitution 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, complete in all its parts, with powers
legislative, executive and judicial, and in all those powers
extending over the whole nation. Is it congruous that, with regard
to such purposes, any man or body of men, any person natural or
artificial, 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 Page 2 U. S. 466 so many 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 legitimate
result of fair and conclusive deduction from the Constitution. It
is confirmed 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."
[ Footnote 22 ] Two states are
supposed to have a controversy 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
professional ingenuity devise a mode by which this "controversy
between two states" can be brought before a court of law, and yet
neither of those states be a defendant? "The judicial power of the
United states shall extend to controversies between a state and
citizens of another state." Could the strictest legal language,
could even that language which is peculiarly appropriated to an art
deemed by a great master to be one of the most honorable, laudable,
and profitable things in our law; could this strict and
appropriated language describe 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
solely her attention 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.

															[ Footnote 1 ]

															Art. 1. &. 2.

															[ Footnote 2 ]

															Art. 3. s. 3.

															[ Footnote 3 ]

															Art. 3. s. 3.

															[ Footnote 4 ]

															Vatt. B. 1. c. s. 4.

															[ Footnote 5 ]

															113.

															[ Footnote 6 ]

															1 Com. 241, 242.

															[ Footnote 7 ]

															Sid. 131.

															[ Footnote 8 ]

															Hol. 71. Book 31.

															[ Footnote 9 ]

															Hol. 71. Book 31.

															[ Footnote 10 ]

															4 C.A.N. 487.

															[ Footnote 11 ]

															Com. 104.

															[ Footnote 12 ]

															Brac. 107. Com. 104.

															[ Footnote 13 ]

															G.F. 124.

															[ Footnote 14 ]

															Col.Jur. 68.

															[ Footnote 15 ]

															War, 343.

															[ Footnote 16 ]

															46-52. 147. 160-162.

															[ Footnote 17 ]

															155.

															[ Footnote 18 ]

															153.

															[ Footnote 19 ]

															Iliad, I., 2. v. 54.

															[ Footnote 20 ]

															1. s. 10.

															[ Footnote 21 ]

															Brac. 107.

															[ Footnote 22 ]

															Art. 3. s. 2.

															Cushing, justice.

															The grand and principal question in this case is whether a State
can, by the Federal Constitution, be sued by an individual 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
judicial in the second section of the third article of the
Constitution. It is declared that

															"the judicial 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 and maritime jurisdiction; to
controversies, to which the United Page 2 U. S. 467 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
thereof 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 demand 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 suggested that it could not
be intended to subject a State to be a defendant, because it would
effect the sovereignty of States. If that be the case, what shall
we do with the immediate preceding 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 the two other
clauses I have remarked upon. For if the judicial power extends to
a controversy between 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 reciprocally to affect the 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
Constitution, tend to show 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 powers or citizens from rising to extremities 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 without Page 2 U. S. 468 distinction upon the same footing, as far as may be, as to
controversies between them. So also, with respect to controversies
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 another 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 founded 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 reduce 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 deposited 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 declaring war, making peace, raising and supporting armies
for public defence, levying duties, excises and taxes, if
necessary, with many other powers, are lodged in Congress, and are
a most essential abridgement 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 any thing but
gold and silver a tender in payment of debts, pass any law
impairing the obligation of contracts;"

															these, with a number of others, are important restrictions of
the power of States, and were thought necessary 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 the 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. Page 2 U. S. 469 One other objection has been suggested -- 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 "controversies to which
the United States shall be a party," not controversies between the
United States and any of their citizens. When speaking of States,
it says, "controversies between two or more States; between a State
and citizens of another State." As to reasons 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
citizens of another State might have a tendency to involve both
States in contest, and perhaps in war, a common umpire to decide
such controversies may have a tendency to prevent the mischief.
That an object of this kind was had in view by the framers of the
Constitution I have no doubt when I consider the clashing
interfering laws which were made in the neighbouring 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 again 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
contracting.

															The third question respects the competency of service, which I
apprehend is good and proper, the service being by summons and
notifying the suit to the Governor and the Attorney General; the
Governor, who is the supreme executive magistrate and
representative of the State, who is bound by oath to defend the
State, and by the Constitution to give information to the
legislature of all important matters 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
merits Page 2 U. S. 470 of this objection, let us enquire, 1st. In what sense Georgia is
a sovereign State. 2nd. Whether suability is incompatible with such
sovereignty. 3rd. 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 and correctly convey the idea annexed to them.

															1st. In determining 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 immediately 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 fellow
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 between the people of Gaul, Britain,
and Spain while Roman Provinces, viz., only that affinity
and social connection which result from the mere circumstance 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
the people already united for general purposes, and at the same
time providing for their more domestic concerns by State
conventions and other temporary arrangements. From the Crown of
Great Britain, the sovereignty of their country passed to the
people of it, and it was then not an uncommon opinion that the
unappropriated lands, which belonged to that Crown, passed not to
the people of the Colony or States within whose limits they were
situated, but to the whole people; on whatever principles this
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
people nevertheless continued to consider themselves, in a national
point of view, as one people; and they continued without
interruption to manage their national concerns accordingly;
afterwards, in the hurry of the war and in the warmth of mutual
confidence, they made a Confederation of the States the basis of a
general government. Experience disappointed the expectations they
had formed from it, and then the people, in their collective and
national capacity, established the present Constitution. It is
remarkable Page 2 U. S. 471 that, in establishing it, the people exercised their own rights,
and their own proper sovereignty, and, conscious of the plenitude
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 governments 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 manner, and the
Constitution of the United States is likewise a compact made by the
people of the United States to govern themselves as to general
objects in a certain manner. By this great compact however, many
prerogatives were transferred to the national government, such as
those of making war and peace, contracting alliances, coining
money, etc. etc.

															If then it be true that the sovereignty of the nation is in the
people of the nation, and the residuary 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 system 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, immunities and
privileges; it is easy to perceive that such a sovereign could not
be amenable to a court of justice, or subjected to judicial
controul and actual constraint. It was of necessity, therefore,
that suability became incompatible 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 Revolution, the
sovereignty devolved on the people, and they are truly the
sovereigns of the country, but they are sovereigns without subjects
(unless the African Page 2 U. S. 472 slaves among us may be so called), and have none to govern but
themselves; the citizens of America are equal as fellow citizens,
and as joint tenants in the sovereignty.

															From the differences existing between feudal sovereignties and
governments founded on compacts, it necessarily follows that their
respective 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 government; 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 sovereigns. Their Princes have personal
powers, dignities, and preeminences; our rulers have none but
official; nor do they partake in the sovereignty otherwise, or in
any other capacity, than as private citizens.

															2nd. The second object of enquiry now presents 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, in 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 demanding 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 forty odd
thousand free citizens, 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 parties, to serve a summons on the
Governor and Attorney General of Delaware as on the Mayor or other
Officers of the Corporation of Philadelphia? Will it be said that
the fifty odd thousand 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 charter, that,
although it may become the latter to meet an individual on an equal
footing 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 Page 2 U. S. 473 another place be privileged 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 partakes.
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
than the other, yet, in the opinion of those who dislike
aristocracy, that circumstance 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 undeniable 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 process in both cases being alike and the
consequences of 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 reliance 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.*

															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 States, but are not
content that citizens of other States should have a right to sue
them.

															Let us now proceed to enquire whether Georgia has not, by being
a party to the National Compact, consented to be suable by
individual citizens of another State. This enquiry naturally leads
our attention, 1st., to the design of the Constitution; 2nd., to
the letter and express declaration in it. Page 2 U. S. 474 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 control.
There was then no general court of appellate jurisdiction by whom
the errors of State courts, affecting either the nation at large or
the citizens 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,
animosities 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
particularly 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. 2nd. To establish justice. 3rd. 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 would be
pleasing and useful to consider and trace the relations which each
of these objects bears to the others, Page 2 U. S. 475 and to show that they collectively comprise everything
requisite, with the blessing of Divine Providence, to render a
people prosperous and happy. On the present occasion, such
disquisitions would be unseasonable because foreign to the subject
immediately under consideration.

															It may be asked, what is the precise sense and latitude in which
the words "to establish justice," as here used, are to be
understood? The answer to this question will result from the
provisions made in the Constitution on this head. They are
specified in the second section of the third article, where it is
ordained that the judicial power of the United States shall extend
to ten descriptions 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. 2nd. 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 decided and
fixed by the party from whom they are due, but by a tribunal
deriving authority from both the parties. 3rd. To all cases arising
under treaties made by their authority; because, as treaties are
compacts made by, and obligatory on, the whole nation, their
operation ought not to 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 officers 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 nations, whose right and privileges
relative thereto are regulated by the law of nations and treaties,
such cases necessarily belong to national jurisdiction. 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 litigants. 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 better 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 irritation and criminations arising
from apprehensions and Page 2 U. S. 476 suspicions of partiality being thereby obviated. Because, in
cases 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 government requires that
free and equal citizens should have free, fair, and equal justice.
9th. To controversies 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. 10th. 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 its citizens towards other nations,
all questions touching the justice due to foreign nations or people
ought to be ascertained 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 sovereignty, and
the equal right of the people.

															The question now before us renders it necessary to pay
particular attention to that part of the second section which
extends the judicial power "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 construction
will easily decide whether those words are to be understood in that
limited sense.

															This extension of power is remedial, because it is to settle
controversies. It is therefore to be construed liberally. It is
politic, 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. If 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 citizens of another State." If the Constitution really meant to
extend these powers only to those controversies in which a State
might be plaintiff, to the exclusion 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 appears in Page 2 U. S. 477 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 effect 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 latter 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 contradict and do violence to
the great and leading principles of a free and equal national
government, one of the great objects of which is to ensure justice
to all -- to the few against the many as well as to the many
against the few. It would be strange indeed that the joint and
equal sovereigns of this country should, in the very Constitution
by which they professed to establish justice, 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 subsequent clause in which the
Constitution ordains that,

															"in all cases affecting Ambassadors, other public Ministers and
Consuls, and those in which a State shall be a party, the Supreme
court shall have original jurisdiction."

															Did it mean here party plaintiff? If that only was meant, it
would have been easy to have found words to express it. Words are
to be understood in their ordinary and common acceptation, and the
word "party" being in common usage, applicable both to plaintiff
and defendant, we cannot limit it to one of them in the present
case. We find the Legislature of the United States expressing
themselves in the like general and comprehensive manner; they speak
in the thirteenth section of the judicial Act, of controversies
where a State is a party, and as they do not impliedly or expressly
apply that term to either of the litigants in particular, we are to
understand them as speaking of both. In the same section, they
distinguish the cases where Ambassadors are plaintiffs from those
in which Ambassadors are defendants, and make different provisions
respecting those cases; and it is not unnatural to suppose that
they would in like manner have distinguished between cases where a
State was plaintiff and where a State was defendant if they had
intended to make any difference between them, or if they had
apprehended that the Constitution had made any difference between
them. Page 2 U. S. 478 I perceive, and therefore candor 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 the judicial power to controversies "between a State and
the citizens of another State" does also extend that power to
controversies to which the United States are a party. Now it may be
said, if the word party comprehends both plaintiff and defendant,
it follows 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 between the two cases. It is this: in all
cases of actions against States or individual citizens, the
national courts are 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
distinction, 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 improved, and the science
of government advanced to such a degree of perfection, as that the
whole nation could, in the peaceable course of law, be compelled to
do justice, and be sued by individual citizens. Whether that is or
is not now the case ought not to be thus collaterally and
incidentally decided. I leave it a question.

															As this opinion, though deliberately formed, has been hastily
reduced to writing between the intervals of the daily adjournments,
and while my mind was occupied and wearied by the business of the
day, I fear it is less concise and connected than it might
otherwise have been. I have made no references to cases, because I
know of none that are not distinguishable from this case; nor does
it appear to me necessary to show that the sentiments of the best
writers on government and the rights of men harmonize with the
principles which direct my judgment on the present question. The
acts of the former Congresses, and the acts of many of the State
Conventions, are replete with similar ideas, and, to the honor of
the United States, it may be observed that in no other country are
subjects of this kind better, if so well, understood. The attention
and attachment of the Constitution to the equal rights of the
people are discernable in almost every sentence of it, and it is to
be regretted that the provision in it which we have been
considering has not in every instance received the approbation and
acquiescence which it merits. Georgia has in strong language
advocated the cause of republican equality, and there is reason
to Page 2 U. S. 479 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 State.

															For my own part, I am convinced that the sense in which I
understand and have explained the words "controversies between
States and citizens of another State" is the true sense. The
extension of the judiciary power of the United States to such
controversies appears to me to be wise, because it is honest and
because it is useful. It is honest because it provides for doing
justice without respect of persons, and, by securing individual
citizens as well as States in their respective rights, performs the
promise which every free government makes to every free citizen of
equal justice and protection. It is useful because it is honest;
because it leaves not even the most obscure and friendless citizen
without means of obtaining justice from a neighbouring State;
because it obviates occasions of quarrels between States on account
of the claims of their respective citizens; because it recognizes
and strongly rests on this great moral truth that justice is the
same whether due from one man or a million, or from a million to
one man; because it teaches and greatly appreciates the value of
our free republican national government, which places all our
citizens on an equal footing, and enables each and every of them to
obtain justice without any danger of being overborne by the weight
and number of their opponents; and because it brings into action
and enforces this great and glorious principle -- that the people
are the sovereign of this country, and consequently that fellow
citizens 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 forget that nothing but
the free course of constitutional law and government can ensure the
continuance and enjoyment of them.

															For the reasons before given, I am clearly of opinion that a
State is suable by citizens of another State; but left I should be
understood in a latitude beyond my meaning, I think it necessary to
subjoin this caution, viz., that such suability may
nevertheless not extend to all the demands and to every kind of
action; there may be exceptions. For instance, I am far from being
prepared to say that an individual may sue a State on bills of
credit issued before the Constitution was established, and which
were issued and received on the faith of the State, and at a time
when no ideas or expectations of judicial interposition were
entertained or contemplated.

															The following order was made:

															By 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 declaration 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 contrary in this Court, by the first
day of next Term, judgment by default shall be entered against the
said State.*

															* Georgia v. Brailsford, et al., ante. * In February Term, 1794, judgment was rendered for the
plaintiff, and a Writ of Enquiry awarded. The Writ, however, was
not sued out and executed, so that this cause, and all the other
suits against States, were swept at once from the Records of the
Court by the amendment to the Federal Constitution, agreeably to
the unanimous determination of the judges, in Hollingsworth et
al. v. Virginia, argued at February Term, 1798.