Front Page Titles (by Subject) 1793. - The Correspondence and Public Papers of John Jay, vol. 3 (1782-1793)
The Online Library of Liberty
A project of Liberty Fund, Inc.
Search this Title:
1793. - John Jay, The Correspondence and Public Papers of John Jay, vol. 3 (1782-1793) 
The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 3 (1782-1793).
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.
The text is in the public domain.
Fair use statement:
This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit.
OPINION OF CHIEF-JUSTICE JAY ON THE SUABILITY OF A STATE.1
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 of this objection, let us inquire—first, in what sense Georgia is a sovereign State; second, whether suability is incompatible with such sovereignty; third. whether the Constitution, to which Georgia is a party, authorizes 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.
First, 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 that, in establishing it, the people exercised their own rights and their own proper sovereignty; and, conscious of the plentitude of it, they declared, with becoming dignity: “We, the people of the United States, do ordain and establish this Constitution.” Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution, by which it was their will that the State 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 control 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 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 the regents in Europe stand to their sovereigns. Their princes have personal powers, dignities, and pre-eminences, our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.
Second. The second object of inquiry now presents itself, viz., whether suability is compatible with State sovereignty?
Suability, by whom? Not by a subject, for in this country there are none; not an inferior, for all 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 procedure would not comport with the dignity of the former? In this land of equal liberty, shall forty odd thousand in one place be compellable to do justice, and yet fifty odd thousand in another place be privileged 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 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 its force is done away with 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 inquire whether Georgia has not, by being a party to the national compact, consented to be suable by individual citizens of another State. This inquiry naturally leads our attention: 1st, To the design of the Constitution. 2d. To the letter and express declaration in it.
Prior to the date of the Constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least 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 favourable 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 States were bound to protect each, and the citizens of each, it was highly proper and reasonable that they should be in a capacity not only to cause justice to be done to each, and the citizens of each, but also to cause justice to be done by each and the citizens of each; and that not by violence and force, but in a stable, sedate, and regular course of judicial procedure.
These were among the evils against which it was proper for the nation, that is, the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.
Let us now turn to the Constitution. The people therein declare that their design in establishing it comprehended six objects: 1st. To form a more perfect union. 2d. To establish justice. 3d. To insure 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; 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 attitude 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 under this head. They are specified in the 2d section of the 3d article, where it is ordained that the judicial power of the United States shall extend to ten descriptions of case—viz.: 1st. To all cases arising under this Constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties; or by authority derived only from one of them. 2d. To all cases arising under the laws of the United States; because as such laws, constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3d. To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and 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 is 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 rights 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 justice due to others. 7th. To controversies between two or more States; because domestic tranquillity requires that the contention 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 the court of the State to which those citizens belong; the danger of irritation and criminations arising from apprehensions and 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 rights of the people.
The question now before us renders it necessary to pay particular attention to that part of the 2d section which extends the judicial power “to controversies between a State and citizens of another State.” It is contended that this ought to be 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 any part of the Constitution. It cannot be pretended that where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no controversy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words of the Constitution. What is it to the cause of justice, and how can it affect the definition of the word controversy, whether the demands which cause the dispute are made by a State against the 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 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 to plaintiff and defendant, we cannot limit it to one of them in the present case. We find the Legislature of the United States expressing themselves in the like general and comprehensive manner; they speak in the 13th section of the Judicial Act of controversies where a State is a party, and as they do not impliedly or expressly apply that term to either of the litigants in particular, we are to understand them as speaking of both. In the same section they distinguish the cases where Ambassadors are plaintiffs from those in which Ambassadors are defendants, and make different provisions respecting those cases; and it is not unnatural to suppose that they would in like manner have distinguished between cases where a State was plaintiff and where a State was defendant, if they had intended to make any difference between them, or if they had apprehended that the Constitution had made any difference between them.
I perceive, and therefore candour urges me to mention, a circumstance which seems to favour 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 with 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 to be 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 discernible 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 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 in 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 neighboring 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 to 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 insure the continuance and enjoyment of them.
For the reasons before given, I am clearly of opinion that a State is suable by citizens of another State, but lest I should be understood in a latitude beyond my meaning, I think it 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.
ALEXANDER HAMILTON TO JAY.
Philadelphia, April 9, 1793.
When we last conversed together on the subject, we were both of opinion that the minister expected from France should be received.
Subsequent circumstances have perhaps induced an additional embarrassment on this point, and render it advisable to reconsider the opinion generally, and to raise this further question, Whether he ought to be received absolutely or with qualifications?
The king has been decapitated. Out of this will arise a regent, acknowledged and supported by the powers of Europe almost universally—in capacity to act, and who may himself send an ambassador to the United States. Should we in such case receive both? If we receive one from the republic and refuse the other, shall we stand on ground perfectly neutral?
If we receive a minister from the republic, shall we be afterward at liberty to say, “We will not decide whether there is a government in France competent to demand from us the performance of the existing treaties”? What the government of France shall be is the very point in dispute. Till that is decided, the applicability of the treaties is suspended. When that government is established, we shall consider whether such changes have been made as to render their continuance incompatible with the interest of the United States. If we shall not have concluded ourselves by any act, I am of opinion that we have at least a right to hold the thing suspended. Till the point in dispute is decided, I doubt whether we could bona fide dispute the ultimate obligation of the treaties. Will the unqualified reception of a minister conclude us? If it will, ought we so to conclude ourselves?
Ought we not rather to refuse receiving, or to receive with qualification; declaring that we receive the person as the representative of the government, in fact, of the French nation, reserving to ourselves a right to consider the applicability of the treaties to the actual situation of the parties?
These are questions which require our utmost wisdom. I would give a great deal for a personal discussion with you. Imprudent things have been already done, which render it proportionately important that every succeeding step should be well considered.
With true attachment, I am, dear sir,