- Alphabetical List of Authors
- Note On the Texts
- Part One: Colonial Settlements and Societies
- Virginia Articles, Laws, and Orders I610–11
- The Mayflower Compact November 11, 1620
- Fundamental Orders of Connecticut January 14, 1639
- The Massachusetts Body of Liberties December 1641
- Charter of Liberties and Frame of Government of the Province of Pennsylvania In America May 5, 1682
- Dorchester Agreement October 8, 1633
- Maryland Act For Swearing Allegiance 1638: Plymouth Oath of Allegiance and Fidelity 1625
- Little Speech On Liberty
- Copy of a Letter From Mr. Cotton to Lord Say and Seal
- Part Two: Religious Society and Religious Liberty In Early America
- The Bloody Tenent, of Persecution, For Cause of Conscience
- A Platform of Church Discipline
- Providence Agreement August 20, 1637: Maryland Act For Church Liberties 1638: Pennsylvania Act For Freedom of Conscience December 7, 1682
- Worcestriensis 1776
- Thanksgiving Proclamation and Letters to Religious Associations
- Farewell Address
- The Rights of Conscience Inalienable
- Letter to the Danbury Baptist Association
- Part Three: Defending the Charters
- Magna Charta 1215
- Petition of Right 1628
- An Account of the Late Revolution In New England and Boston Declaration of Grievances: Boston Declaration of Grievances
- The English Bill of Rights 1689
- The Stamp Act March 22, 1765
- Braintree Instructions
- Resolutions of the Virginia House of Burgesses June 1765: Declarations of the Stamp Act Congress October 24, 1765
- The Rights of the British Colonies Asserted and Proved
- The Act Repealing the Stamp Act March 18, 1766; the Declaratory Act, 1766
- Part Four: the War For Independence
- A Discourse At the Dedication of the Tree of Liberty
- Letters From a Farmer In Pennsylvania, Letters V and Ix
- Declaration and Resolves of the First Continental Congress October 14, 1774
- Virginia Bill of Rights June 12, 1776
- On Civil Liberty, Passive Obedience, and Non-resistance
- Common Sense
- The Declaration of Independence July 4, 1776
- Part Five: a New Constitution
- Thoughts On Government
- Articles of Confederation 1778
- The Essex Result April 29, 1778
- Northwest Ordinance 1787
- Albany Plan of Union July 10, 1754
- Virginia and New Jersey Plans 1787
- The Constitution of the United States of America 1787
- The Federalist , Papers 1, 9, 10, 39, 47–51, 78
- Address of the Minority of the Pennsylvania Convention December 12, 1787
- An Examination of the Leading Principles of the Federal Constitution
- Part Six: the Bill of Rights
- The Federalist , Papers 84 and 85
- Letter I
- Essay I
- Letter Iii
- Memorial and Remonstrance Against Religious Assessments: Virginia Bill For Establishing Religious Freedom
- Speech Introducing Proposed Constitutional Amendments: Debate Over First Amendment Language August 15, 1789: The First Ten Amendments to the Constitution, Or the Bill of Rights 1789
- Commentaries On the Constitution of the United States
- The People V. Ruggles
- Marbury V. Madison
- Barron V. The Mayor and City Council of Baltimore
- Part Seven: State Versus Federal Authority
- Essay V: “brutus” 1787
- Chisholm V. Georgia: U.s. Constitution, Eleventh Amendment 1787
- The Alien and Sedition Acts June 25, 1798: Virginia Resolutions December 21, 1798: Kentucky Resolutions November 10, 1798: Counter-resolutions of Other States 1799: Report of Virginia House of Delegates 1799
- The Duty of Americans, At the Present Crisis
- Report of the Hartford Convention 1815
- Commentaries On the Constitution of the United States: a Familiar Exposition of the Constitution of the United States
- Part Eight: Forging a Nation
- Opinion Against the Constitutionality of a National Bank: Opinion As to the Constitutionality of the Bank of the United States
- Veto Message
- Veto Message
- Commentaries On the Constitution of the United States
- Address to the Young Men’s Lyceum of Springfield, Illinois: Address to the Wisconsin State Agricultural Society, Milwaukee, Wisconsin
- Newspaper Editorials: “direct Taxation” April 22, 1834: “chief Justice Marshall” July 28, 1835: “the Despotism of the Majority” March 25, 1837: “morals of Legislation” April 15, 1837: “the Morals of Politics” June 3, 1837
- Speech On Electioneering
- Speech Before the U.s. Senate (webster): Speech Before the U.s. Senate (hayne)
- Fort Hill Address
- Part Nine: Prelude to War
- Laws Regulating Servants and Slaves, 1630–1852
- “slavery” “agriculture and the Militia”
- The Missouri Compromise 1820–21
- Newspaper Editorials: “governor Mcduffie’s Message” February 10, 1835: “the Question of Slavery Narrowed to a Point” April 15, 1837: “‘abolition Insolence’” July 29, 1837
- Senate Speeches On the Compromise of 1850 Speech On the Slavery Question
- Second Fugitive Slave Law September 18, 1850: Ableman V. Booth (62 Us 506)
- Scott V. Sandford
- The Relative Position and Treatment of the Negroes the Abolitionists—consistency of Their Labors
- What Is Slavery? Slavery Is Despotism
- Kansas-nebraska Act 1856: Fifth Lincoln-douglas Debate October 7, 1858
Chisholm v. Georgia
U.S. Constitution, Eleventh Amendment
In 1792, the executors of the estate of Alexander Chisholm, a citizen of South Carolina, sued the state of Georgia for failing to pay debts owed to Chisholm. Georgia refused to appear in court, claiming that, as a sovereign state, it could not be sued without its own consent. The Supreme Court held for Chisholm on the ground that the Constitution’s Article 3, section 2, clearly said that states could be sued by citizens of other states. But the issues raised by Chisholm go beyond the language of the Constitution to the nature of the union. The federal government did not see itself as liable to being sued by just anyone at his own pleasure. It regulated when, how, and for what reasons it could be sued. In so doing, it followed the practice in Great Britain, where the king could be “sued” only in special courts that heard pleas as a favor or special grant. States extended federal practice in regard to suits from their own citizens.
In his opinion in Chisholm, Justice Wilson emphasized the sovereignty, not of any government, but of the people. According to Wilson, the real power in any free, republican government rested with the people themselves. And this included the right to give whatever powers they liked to whatever branch or level of government they saw fit. According to Wilson, it was self-evident that the people had not given states the power to refuse to be sued. When the Chisholm Court came to the conclusion that the states were less than sovereign parts of a sovereign union, the result was swift action in Congress and by the States—passing and ratifying the Eleventh Amendment in less than a year. This amendment revoked that constitutional language, reestablishing, for a time, the sovereignty of the states.
Chisholm v. Georgia (2 US 419)
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. 2d. By the laws and practice of particular States and Kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law 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. 3dly. 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.
I. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an aera not less remarkable, and far more illustrious, than that formed by the justly 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 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, silence is sometimes most expressive.
To the Constitution of the United States the term sovereign, is totally unknown. There is but one place where it could have been used with propriety. But, 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, 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.”
Let a State be considered as subordinate to the people: But let every thing 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 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 can-not 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 asovereignState? 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.” “Citizens of another State.” “Citizens of different States.” “A State or citizen thereof.” The term, subject, occurs, indeed, once in the instrument; but to mark the contrast strongly, the epithet “foreign” is prefixed. In this sense, I presume the State of Georgia has no claim upon 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, 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 isnota 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, 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 aera 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, 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 prin-ciple, 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 every thing to have a contrary tendency.
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 crouded 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 alledged to exist.
Columbus atchieved 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.
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.
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 Justiza, of Arragon. This personage they declare, by a public decree, to be greater and more powerful than their Kings and then address him in the following remarkable expressions. “We, who are of as great worth as you, and can do more than you can do, elect you to be our King, upon the conditions stipulated: But between you and us there is one of greater authority than you.”
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. 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. “Praecipe Henrico Regi Angliae” &c. “Command Henry King of England” &c.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.” 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. 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.”
“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.” These are the words of a King, of the late Frederic of Prussia. In his Courts of Justice, that great man stood 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 repeti-tion of the expression L’Etat; and complained of it as an indecency offered to his person and character. And, indeed, that Kings should imagine themselves the final causes, for which men were made, and societies were formed, and Governments were instituted, will cease to be a matter of wonder or surprise, when we find that lawyers, and statesmen, and philosophers, have taught or favoured 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: 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 in the commentaries upon the laws of England. The Parliament form the great body politic of England!What, then, or where, are the people? Nothing! No where! 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 a question of very different import.
In the United States, and in the several States, which compose the Union, we go not so far: but still we go one step farther than we ought to go in this unnatural and inverted order of things. The states, rather than the people, for whose sakes the States exist, are frequently the objects which attract and arrest our principal attention. This, I believe, has produced much of the confusion and perplexity, which have appeared in several proceedings and several publications on state-politics, and on the pòlitics, 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 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 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 separ-ate 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, 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;” 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.” “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 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 Judiciary; 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 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.” 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.
Cushing, Justice. The grand and principal question in this case is, whether a State can, by the Foederal 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 Foederal Judicial in the 2d section of the 3d 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 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 shew that the Foederal 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 extremeties and to an appeal to the sword, a national tribunal was necessary, amicably to decide them, and thus ward off such fatal, public calamity. Thus, States at home and their citizens, and foreign States and their citizens, are put together without 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 F0ederal 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.
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 theUnited Statesshall 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 against a State, by an individual citizen of another State. . . .
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
Justice Iredell issued what is now generally termed the opinion of the Court; Justice Wilson’s more famous opinion was written separately but in concurrence with Iredell’s.—B. F.
Ar. 1. s. 1o.