CHISHOLM, EX'R. VERSUS GEORGIA

Iredell, JuJHce.

This great caufe comes before, the Court, orfcli motion made by the Attorney-General, that an order be made by this Court to the following effe.dl:—« That, unlefs the State of Georgia fhali, after reafonkble notice of this mo- “ tion, caufe an appearance to be entered on behalf, of the id Maritime Jurifdidticii; (.4.) To centro verfies to which, thei United States íhall be a' party; (¡.j To coiitroverfies between two or more States ; between a State and citizens of another State 5 between, citizens-of different States; between citizens of the . fame State,, claiming lands under grants. of . different States; and, between a State or the citizens thereof, and foreign States, citizens or fubje&s. The Conftitution,.therefore, provides for the jurifdidfion wherein a State is a party, in file following inftances if. Controverfies between two or more States. - id. Controverfies between a State and citizens of another State, id. Controverfies between a State, and foreign States, citizens, or fubjedls. And it alfo provides, that in all cafes in which a State lhall be-¾ party, the Supreme Court íhall have original jurifdi£Hon,

The words of-the general judicial af tint ion and the law, not of the Golifitutim only, ,in refpedt td the manner of its proceeding, we muft receive our diredtions from the Legislature in this particular, ahd have'no right to conftitute ourfelves ah ojfcina brevhm, or take any other fliort method of doing-what the - Conftitution has chofeh (and, in my opinion, with the moft perfedt propriety) Should bé done • ih another mahtter. But the adt of Congrefs has not been altogether filent upon thisfubjedt; The i¿,th feet, of the judicial, adt, provides in the following Words : “ All the before mentioned Courts oi the United States, ihall have power to iffue writs of fire facias, ha-beas corpus, and all other writs not-Specially' provided for by Statute, which may be neceftary for the exercife of their refpectiye jurifditUonSj and agreeable to the principles and-ufages of law*. Thefe words refer as well to the Supreme Court as to the o ther Courts of the United States. Whatever writs we iffue, that are neceflary for the exercife of our jurifditSion, muft be agreeable to the principles and ufages of law. • This is a direction, I apprehend, we cannot fupercede, becaufe it may appear to us not fufficiently extenfive. If it be not, we muft wait till other remedies are provided b.y the fame • authority. From this it is plain that the Legiilature did not chufe to leave-to our own difcretion the path to juftice, but hasprefcribed one of its own. In doing fo, it has, Í think, wifely, referred us to principles and ufages oFlaw-already well known, and by their pre-cifion calculated to guard againft. that innovating fpirit of Courts of Juftice, which the Attorney-General hi another cafe repro-bated with fo much warmth, and, with whofe fen.timents in that particular, I moft cordially join. The principles of law to 'which reference is to be had, either upon the general ground I firft alluded to, or upon the ipecial words I have above cited, from the judicial aft, I apprehend, can be, either, ift. Thofe ' of the particular law.s of the State, againft which the fuit ⅛ brought. Or, 2d. Principles of law common to all the States. I omit any confideration arifing-from the wordf our authority (whatever further might be conftitutionaly, ⅜⅛⅞⅜⅛) yve ⅜⅞⅜ exercife-no authority in the prefent inftanc e eonfiftently with the .clear intention of»1 the aft, but fuch as a proper State Court would have been at leaft-comepetent to es> ercife at the time the aft waspafied.

If -therefore, no new remedy be provided (as -plainly is the ' cafe), and confequently we have no other rule to govern us but the principles of rhe pre-exiftent laws, which muft remain in-force till fuperceded by others, then it is • incumbent upon us to enquire, whether previous to the adoption of the Conftitution (which period-, or the period of palling the. law, in refpeft totheobjeft of this enquiry, is perfeftly equal) an-aftion o£ the nature like this before the Court could have been maintained againft one of the States in the Union upon the principles of the common law, which I have ihewn to bé alone applicable. If ft could, 'I think it is now maintainable here : If it could not, I think, as the law ftandskit prefent, it is not maintainable 5 whatever opinion may be-entertained,- upon the conftruftlon of the Conftitution,-as to the power of Congrefs to authorifé fuch a one. Now I préfume it will not be denied, that in every State in the Union, previous to the adoption of the Conftitution, the only common law principles in regard to fuits that were in any. manner admiflible in refpeft to claims againft the State, were; thofe which, in England apply to claims againft the crown; there being certainly no' other principles - of the common law which, previous to the adoption of this Conftitution. could, in any manner, or upon any colour, apply to the cafe of a claim agaiiift á.State in its own Courts, where it wa6 folely and completely fo-vereign in-refpeft to fuch cafes at leaft.. Whether that remedy was ftriftly applicable or not, ftill I apprehend there was no othe.r. The only remedy in a cafe like that before the Court, by "which, by any poffiblity, .a fuit can be maintained againft' 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 ⅛ that which is called a Petition of right, It is ftated, indeed, in Com. Dig.' 105. That “ until the' time.of Edward I.the King might have been, fued in-all aftions as a common perfon.” And fome authorities are cited for that pofirion, though it is even there ftated as>a doubt. But the fame authority1 adds-r^« hut now none can have an aftion again ft the King, but one ihall be put to fue to him by petition.” This appears to-be a quotation or .abftraft from Tkeloali’s Digeft, which is alfo one of the authorities quoted in the former cafe. And this book appears (from the law catalogue) to have been printed fo long ago as the year 15.79. The fame doftrine appears (according to a quotation in Blaclf one’s Commentaries, t VoL 243) to be. ftated ⅛ pinch’s Law 253, the firft edition of winch, it feems, was publiihed in 1579. -This alfo more fully appears in the cafe of the Bankers} and particularly from the celebrated argument of Somers, in the time’of W. III. for, though that cale was ⅛ timately"decided againft Lord Somers's opinion, yet the ground; on which the decifion was given no way invalidates the rea-foning-of that argument, fo far as it-refpefts the fimple cafe of a fum of money demandable from the King, and not by him-fecured on any particular revenues. The cafe is reported in-Freeman, Vol. I. p., 331. 5 Mod. 29-. Ski mi. 601. and lately very elaborately in a fmall pamphlet publiihed by Mr. Har-grave, which contains all the reports at length, except Skinner’s, together with the argument at large of Lord Somers bebdes-fame additional matter. The fubftance of' the cafe was as follows -.—King Charier II. having received large furas 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,(after-, wards made transferable by ftatute) and the payment of thefe having been afterward poftporied, the King at length, in order to relieve the Bankers, in 1677, granted annuities to them out-of the hereditary Excife, equal .to 6 per cent intereft on their fe-veral debts, but redeemable on payment of the principal. This intereft was paid ’till. .1683, but it then became in arrear’, and' continued fo at the Revolution; and the-fuits which were com-, menced to enforce the payment of thefe arrears, were the fub-je£k of this cafe. The Bankers prefented a petition to the'Ba-^ rons ©f the Exchequer,. for the payment-, of the arrears of the-annuities granted ⅜ to which petition-the Attorney General demurred. Two points were made: F-irft, whether the gfSnt out ©f the Excife-was good'; fecorid, whether a petition to the Barons of the Exchequer was a proper remedy. On'the firft point-the whole Court agreed-, that in general the King could-alienate-the revenues ef the crown ; but Mr. Baron Lechmere. differed from the other Barons, by thinking that this particular, revenue-of the-Excife, was an exception to the general - rule.. Brit 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 Cíen eral in the Exchequer-Chamber. There all-,the judges who argued held the grant ‘out of the Excife good. A majority of them, including Lord Chief Juftiee Holt, alfo approved of the remedy by petition to the Barons. But, Lord Chief Juft-ice Treby was of opinion, ¡that the Barons qi the -' Exchequer, were not au&orifed to make order-for payments on-the receipt of the Exchequer,, and, therefore, that the remedy by petition to the Barons was inapplicable. In rhis bpinion Lord Somers concurred. A doubt-then arofe, whether the Lord Chancellor and -Lprd High Trea-» forer were, at liberty to gi$e judgment -according-to their ew» opinion, in oppofitión to that of a majority of the attendant Judges ; in other words, whether the Judges called .by the Lord Chancellor and Lord High Treafu'rer were to be confidered as mere aiiiftants to them without voices. The opinion of thejudges being taken on this point, feven again ft three held, that the Lord Chancellor and Lord Tireafurer were not concluded by the opinions of the Judges, and therefore that the Lord Keeper in the cafe in queftion, there being then no Lord Treafurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reverfed the judgment of the Court of Exchequer. But the cafe was afterwards carried by error into Parliament, and there the Lords reverfed the judgment of the' Exchequer-Chamber,' and affirmed that of the Exchequer. However, notwithftanding this final decifion in favour of the Bankers.and their creditors, it appears by,a,fubfequent ftatute, that they were to receive only one,half of their debts ; the 1,¾ and 14 W. 3, after appropriating certain fums out of the hereditary Excife for public ufes, providing, that in lieu of the annuities granted to die Bankers and all arrears, the hereditary Excife ihould, after, the 26th of December 1601, be charged with annual fums equal to ail inte.reft of three per cent, till redeemed by payment of one moiety of the principal fums. Har-grave s cafe of the Bankers, 1, 2, 3.

Upon perufing the whole of this cafe, thefe inferences naturally follow :— 1ft. That admitting the authority of that de-cifion in its fulleft extent* yet it is an authority only in refp'ecf to fuch cafes, where letters patent from the crown have been granted for the payment of certain fums out of a particular revenue. 2d. That fuch relief was grantable in the 'Exchequer, •upon no othér principle than that that Court hud a right to-direct the iifues of the Exchequer as well after the money was depofited there as while (in the-Exchequer language) it was in iranfitu. 3d. That fuch an authority could not have beenexer-. ifed by any other Court in WeJlminJler-'Hall, or. by any Court that from its particular conftitution had nó conrroul pter the revenues of the Kingdom, Lord C. J. Holt, arid . Lord Somers ;(though they differed in the main point) both agreed in that cafe, that the Court of King’s bench could not Tend a .writ to the Treafury. Hargrave’s -cafe, 45, 89, Coufequently, no fuch remedy, could, finder .ány’circumftances, I apprehgyd, be aflowed in any of-the American States; in' none of which it.is preflimed any Court of Juftice hath any exprefs, authority over thc revenues of the State fuch as has been attributed to the Court of Exchequer in England.

The obfervations of Lord Somers, concerning the general rc- ' medy by petition to'the King, -have been extracted and deferred to by fome of the ableft law characters. fine?; particularly by Lord C. Baron Comyns in his digeft. I ihall, therefore, 6⅝» fome of them, as he appears to have taken uncommon pains to collect all. the material learning on the fubject 5 and indeed is faid to have expended feveral hundred. pounds in the procuring of records relative . to th .t cafe. Hargrave’s preface to the 'cafe of the Bankers.

After citing many authorities, Lord .Somers proceeds thus te By all thefe authorities, and,' by many others, which I could 'cite', both ancient and modern, it is plain, that if the fubjedi tvas 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 iffuing out of. lands, which by fubfequent title came to be in the King’s hands '1, in all cafes the remedy to come at it was by -petition to the p.erfon of the King : and no other method can be ihewn to have been pra&ifed at common law. Indeed I take it to be generally true, that in all cafes where the fubjecl is in the nature of a Plaintiff, to recover any thing from the King, his 'only remedy, át common law, is' to fue by Petition to the' perfon of the King*. I fay, where the fubjedt comes as a Plaintiff. For, as I faid before, when, upon a title .found for the King by office, the fubjedt comes in to'-traverfe the King’s title; or to ihew hrs own right, he comes in the na-1 ture of a Defendant ⅝ and is admitted to interplead in the cafe •with the King in defence of his title, which otherwife would be defeated by finding the office. And to fhewdhat this was fo, I would take notice of feveral inftane'es. That, in cafes of debts owjng by-the crown, the. fubjedt’s remedy1 was by Petition, appears by Aynejhanis cafe; Ryley,. 251. which, is a petition for ¿19. due for work done at Carnarvon caftle. So Ryley 251. The executors of John Efirateling petition for £ 132. due to the . teftator fop wages. ' The arifwer is remarkable ; for there fe a' latitude taken, which will very well agree with the notion that fe taken up in this cafe; Habeant bre. de liberate in Cane. thef. itf earnerar. definí. in partem folutionis. So the --cafe of Ter--tvürd'de G-aUys-y for fifi-Ryley 4x4. -In like manner in the fame book 253., 33. ^ Ed. I. feveral parties fue by petition for ' money and goods taker fpr the King’s ufe; and alfo for wages due to-them ; and for aebts owing to them by the King. The anfwer is, Rex erd'mavit per concilium thefaurarii iff baronum de feas cario, quod fatisfiet iis quam citius fieri poterit ¡, ita quod cónter.» tos fétenebunt. And this is an anfwer - given to a petition - pre-fen ted to .the King in Parliament;' and therefore we havereafon to-conclude it to be warranted by law. They muft be content, apd they ihall be paid,'quam\ citius-fieri potefit. 1 The’ parties, ⅛ thefe; cafes, firlt go to the King' by petition-: it is by him ⅛eyj-áre fent to the ' Exchequer ⅛. and it'is by writ under the: great feql, that, the Exchequer is knpotVered to adt. Nor cart *ny fuch writ he found (unlefs in a very few inftaticés, where it is mere matter of account) in which' the Treafurc.r is not joined with the Barons. ‘So fat was ft from heitlg taken to be law at that time, that the Bároits had any original power of paying the Kitig’s debts ¾ Or Of commanding annuities, granted by the King.or his progenitors, to he paid, When the per^ fon applied to them for'ftich payment. But perhaps it may be -objected, that i’t is not to be inferred, becaufe petitions were brought-in thefe cafes, that therefore it was of necefiity that the fubjerit ihoukl purftte that c'ourfe, and could take no. other way. It might be reafortable to. require from thofe who obj-edfc thus, that they fhould produce feme precedente at leaft, of another remedy taken. ' But I think there is a good ánfwer to he given to this obje&ion. All thefe petitions which I havé mentioned, aVe after the St at. 8 Ed. I. Ryley 442, where no*-tice is taken that the hfinefs of Parliament is interrupted by a multitude of petitions, ‘which might be redr fid by the 'Chancellor and fu/lices. Wherefore it fe thereby-enaftedj thit petitions which touch the fealfhall copie firf to the Chancellor ; 'thofe which touch the-Exchequer, to the Exchequer ; and thofe which tfiucb the Juf-tices, or the iiku of,the land, fhould ‘come t0^4he fuflices ; and if the bujinifs.be fo great, or ft dé grace that Chancellor, or others,Cannot do them without the King, then the- ‘¡‘«fti ion's Jhall be brought before the King to-know his pletifure > fo that m petitions come before the King and his Council, but by the hand's if the Chancellor, and -other chief Minifers ⅜ that the King and Ms Council may attend: the great affairs of the King’s Reálm, and his favereigñ dominions.” This laW being made; there is reafon to conclude that all petitions brought before the King, or Parliament after this time, arid añfwered there, were brought according to .thfe method of this law and Were of the nature of fuch petitions-ás ought to be brought before the perfoti of the King. And'that-petitions did ,lie for a' chattel, as well as for a freehold; does appear 37 Rffi pl ii. Bro.' Pet-. 17* If tenant by the ftatuté merchant be oufted, he may have petition, aed íhall be reftqi-ech Vide 9 H. 4. ¿p Bró. Pet. p. 91 H. 6. at* Bro.,- Pet-. 2. .If the fubjeriftbe oufted of his term, - he íhall have hi* petition. 7. H.r¡. ii. Of a chattel real a pa»’íhall have hfci peti* tion of right, as of his freehold* 34. H. ¡i. Bro. Pet. A man íhall have a petition of right for. goods and chattels ; and the King indorfes it in the uftial form. It is faid indeed; s H. 7. 3. Bro. Pet. 19. that a petition will not lie of-4 ehaitel. Arid, admitting there eyas any-doubt as to' that point, i a the prefent ftiit we are in the cafe of a freehold.” Lord Somerds argument in Hargrave’s cafe of the Bankers, 103 to 105.

The folitary cafe, noticed at the concluí]on of Lord Somers’s arguments “ that a petitiQn will not lie of a-'chattel,” certainly ' ' is deferving of no confederation, oppofed to fo many, other in* fiances mentioned,. and unrecognized (as Í believe it is) by any óther authority either anc'ierit or modern, whereas the contrary, it appears to me, has long been received and eflnbliíhed law¿ In Comyns’s Dig* 4 Vol. 458. It is faid exprefsly « fuit-ihall be to the King by petition, for goods' as well as for land? He cites Staundf. Prar. 75. b. 72. b. for his autiority, ánd takes no notice of any authority to the contrary. The fame dodtrine is alfo laid down with' equal ex'plicitnefs, and without noticing any diftindtion whatever, in Blacone’s Commentaries, 3. Vol* 256-. where he points out the petition of „ghf as one of the common law methods of obtaining poffeffion or reftitution froto the crown, either of real or perfonal property; and fays exprefsly the petition of right “ is of ufe where the King is in full poffeffion of any hereditaments or ¿hattels, and the petitioner fuggefts fuch a right as controverts the title of, the crown, grounded on fails difclofed in the petition i'tfelf.”

I leave out of the argument, from which I have made fo long a quotation, every thingconcerning the reftridtion on the Exchequer, fo far as it concerned the cafe then before the Court, as Lord Somers (although more perhaps by weight of authority than reafoning) was over-ruled in tha,t particular. As fo all others' I confider the authorities on which he relied, and his de-dudlion from them, to be unimpeached.

Blachflone, in the firft volume , of his commentaries (p. 203), fpeaking of demands in point of property, upon the King, ftates the general' remedy thus :—If any pérfon has,'in point .of property, a'juft demand upon the King, he muff petition him in his'Court of Chancery, where his Chancellor will adminif-ter right, asa matter of grace, though not-upon^compulfion. (For which he cites Finch L. 255.). “ And this is exadtly con-donan t to what is laid down by the writers on. natural law— A fubjedt, fay PuffendorJ, .1|> long «a he continues a fubjedt, hath no way to oblige his Prince to give him his due when he refufes, it 5 though no wife Prince will ever refufe to Hand to a lawful contradi. And if the Prince gives the fubjedt kiave to-enter an adtion againft him upon fuch contradi, in his own Courts, the adtion. itfelf proceeds rather upon natural equity, than upon the)municipal laws. For the end of fuch adtion is not to compel the Prince to obferve die contradi, but to purjuade him.”

It appears, that when á petition to the perfpp of the King is properly prefented, the ufüal way is for the King to indorfe or underwrite, foit droit fait’ al partie, (let right .be.done to the party); upon which, unlefs the Attorney-General confeffes the-luggeffion,a commiffion is iffued to enquire into the truth of it t after the .return of which, the King’s attorney is at liberty to plead In bar, and the merits ihall be determined upon iíTúe or demurrer, as in fuits between fubjecl and fubjecl. If the,Attorney-Gfeneral confdies tb°. fuggeftion there is ho occafion for a commiffion, his admiffion of the truth of the facts being equally conclufive as if they had been found by a jury.—See 3 Black-fiends Commentaries 256. and⁴ -Com. Dig. 458.. and the authorities there cited. Though the above mentioned indorfe-' tnent be the ufual one, Lord Somers, in the courfe of his. voluminous fearch, difcovered a variety ©f other anfwers to what he confidered were unqueftionable petitions of right; in refpect to which he obferves : “ The truth is, the manner of anfwer-ing petitions to the perfon of the King was yery various;-which variety did fometimes arife from the conclufion of the party's petition : fometimes from the nature of the thing ; and fome-times from favour to the perfon ; and according as the indorfement was, the party was lent into Chancery, or the other Courts. If the indorfement was general, foit droit fait al partie, it mult be delivered to the Chancellor of England, and then a-commif-fion was to go tq find -the right p£ the party ; and that being found, fo that there was a record fo Aim, thus warranted, he is let in to interplead with the King : but if. the indorfement was fpecial, then the proceeding was to be according, to the indorfement in any other Court. This is. fully explained by Stamford, (StaundfortJ. in his treatife of the Prerog. c. 21. The cafe Mich, xo H. 4. 4. no.- '8. is full as to this-matter. The King recovers in a fihiare impedit by default againil one who was never fummoned.j the pa,r,ty cannot have a writ of deceit, without a petition. If then, fays the book, he concludes his petition' generally « que le Roy ¡ui face droit” (that the King will cauie right to be done)- and the anfwer be general, it mull go into the Chancery, that, the right may inquired of by commiffion \ and, upon the inquetl found, an original writ muftbe dlre£led to the j uftices to examine the deceit othenvife, the Juftices, benre whom the fuit was, cannot meddle : But if he conclude his -oetition efpecially,. that it may pleafe his Uigbiefs to command-b.is. Jufiices. to., proceed to. the examination, and the indorfement be accordingly, that-had given the Juftices a jurifdiclion. They might in fuch cafe have proceeded upon the petition without any commiffipn, or any writ to be fued out; the petition and anlwer indorfed giving afufficient juiifdiftion to the Court to-which it was directed. And,as the book I have mentioned, proves this, fo many, other authorities ’may be cited.” lie accordingly mentions many other mftances, Immaterial to be recat-eo here, particularly remarking a very extraordinary difference irt the cafe belonging to the revenue, in regard to which he laid,, be thought there was not an inftance to be found where peti-¾⅛⅝⅜ were anfwcred, fit droit, fait aux parties (let right be done to the parties): The ufual reference appears to have been to ,&*. Treafurer' and Barons, commanding them to do juftice : Sometimes a writ under the great feal was directed to’- be iffued to. them for that purpofe :' Sometimes a writ from the Chancery diréñing payment' r be fued in any mannerron behalf of the Kingdom in any Court• 'of JuJliee. A Governor of a State is a mere Executive officer;, his general authority very narrowly limited by the Conflitution of the State ⅜ with' no undefined or difputabte prerogatives without power to effect one finding of the public money, but as he is authorifed under the Conftitution, or by a particular law having no colour to reprefent the fovereignty of the State, fo as to bind it in any manner to its prejudice, unlefs fpecially autho-rifed' thereto. And therefore all who contradi with him do it at their own peril, and, are bound to fee (or take the confe-quence of their own indifcretion) that he has Uriel authority for any contradi' he makes. Of courfe fuch contradi when fo authorifed will come within the defeription I mentioned of cafes where public faith alone is the ground of relief, and the Le~. "illative body the only one that can afford a remedy, which fro-m the very nature of it mull be the effedt of its diferetion, and' not of any coinpulfory procefs. If however any fuch cafes were iimilar toriiofe which would entitle a party fo relief by-•petition to the'King in England, that Petition being only preventable to him as he is the fovereign of the Kingdomy fo. far as analogy is to take place, fuch Petition in a State could only. be prefented to the fovereign power, which furely the, Governor is not. The only conliituted authority to which.fuch an application, could with any propriety be made, muil undoubtedly be the Legiflature, wbofe exprefs. content, upon the principle of analogy, would be neeeflary to any further proceeding. So that this bringü us (though by a different route)- to the fame-goal ; Cfhc dijer’etion and good faith of the Legijlative body.

There • is no other part of-the common law, befidts that which I have eonfktered, which cnnby.any.perfon be pretended, in any manner to apply to this cafe, but that which concerns, corporations. ’.The applicability of this, the Attorney-General, with great candour, has cxprefsly waved. Rutas it may be utged-on other occafions, and as I wiih to give the fulleft fa-tisfadlion, I will fay a few words to that dodtrine. Suppofe, therefore^ it-ihould be objedied, that the reáfoning I have now «fed is not conclufive, becaufe, inafmuch as a State is made fubjedl .tó the judicial power of Congrefs, its fcvereignty mail not ftand in the,way of the proper exercife of that power, . and, therefore, in all fuch cafes (though in no other) a State can only be confidered as a fubordinate corpdrntion merely. £ anfwer,:' ill. That this conftrudlion can only be allowed, at the utriioft, upon the fuppofition that the judicial authority of the United States, as it refpedls States, cannot be effedluaced, without proceeding againft them in that light: a pofition I’-by ;no means admit. 2d* "That according to the principles I have íupportéd in this argument, admitting that States ought tobe fo confidered for that purpoíé, an adl of .the Legiflature is ne* cefiary to give effedt to fuch a conftrudlion, unlefs the old doctrine concerning corporations will naturally apply to this particular cafe. gtf. That as it is evident the add of Congrefs has not made any-fpecial provifion in this cafe, grounded on any "-ch conftrudlion, fo it is to my'- mind perfectly clear that we have . no authority,. upon any fuppofed analogy between the two cafes, to apply the. common dodtrine concerning corporations* to the important cafe now before the Court. I take it for granted, • that when any part of an antient law is to. be applied to a new cafe the' circumftanCes of-the new cafe mail agree in all effential points with the circumftancep of the old cafes to which -that antient law was formerly appropriated. ÍSTow there are, in my opinion, the moil effential differences between the old cafesof corporations to which the law intimated has reference, and the great and extraordinary cafe of States feparately poffefling, as to every thing limply relating to themfelves, the fulleft powers of fovereignty, and yet in fome .other defined particulars fubjedfc to a fuperior power compofed out of themfelves for the common welfare of the whole. The only law Concerning corporations, to which! conceive the lead reference is to be had, is the common law of England on that fubjedl. I need not repeat the obfervations I made in refpedfc to the operation Of that law in this country. The word “ corporations,” in its largeft fenfe, - has a more extenfive meaning than people generally ar.e • aware of. Any body politic (foie or aggregate) whether its power be reftridfced or tranfeendsmt, is in this fenfe “ a corporation.” The King, accordingly, in England is called a corporation, id Co. 29. b. So alio* by a very refpedlable.author (Sheppard, hi his abridgement, 1 Vol. 431.J is the Parliament itfelf. In this extenfive fenfe, not only each State fingly, «but even the United States razy without impropriety be termed “ corporations.” f have* therefore, in .contradiftindlion to this large and indefinite term, ufed thé term « fubordinate corporations,” meaning ft* referió fuch only (as alone capable of the flighted application, for the purpofe of the objection) whofe creation and whofe powers-are limited by law.

The differences between fuch corporations, and the fevera! States in the' -Union, as relative to the general Government, ate Very obvious' in the following particulars, ift. A corporation is a mere creature of the King, or of .Parliament 5 very rarely of the latter; moft ufually of the former only-. It owes its exiftence, its name, and its laws, (except fuch laws as are neceffarily incident to all corporations merely as fuch) to the Authority which create'it» A State does-not owe its origin to the Govtrnment of the' United States, in the higheft or in any of its branches. It was in exiftence before it. It derives its authority from the fame pure and' facred fource as itfelf: The voluntary and deliberate choice of the people, 2d, A corporation can do no a£t but what is fubjeft to the revifion either of a Court of Juftice, or of fome other authority within the Government. A State is, altogether exempt from the jurifdidHon of the Courts of the United States, or from any other exterior authority, unlefs in the fpecial inftances where the general Government has power derived from the Conftitution itfelf.- 3d. A corporation i;s -altogether dependant on that Government tó which it owes its exiftence. Its charter may be forfeited by ábufe. Its: authority may be annihilated, without abufe, by an act of the Legiflátíye body. A State, though fubjeft in certain fpecifted particulars to the authority of the Government of the United States, is in every other rfefpedt totally independent upon it. The people of the State ' Created, the people of the State can only change, its Conftitution» Upon this power there is no other limitation but that impofed by the Conftitution ol the United States ; tkat 'it mtijl be of the Republican form. I omit minuter diftindtions. Thefe are fo palpable, that I never can admit that a fyftem of law calculated for one of thefe cafes is to be appllied, as a matter of courfi,- to the other, without admitting (as I conceive) that the diftindft boundaries of law and Legiflation1 may be confounded, in a manner that would' make Courts arbitrary, ‘And in effedi makers of a new law, inftead of being (as certainly they alone ought to be) expoftors of an ex~ ifinjr bne.. If ftil! it ihould be infifted, that though a States Cannot be confidered upon the fame footing as the municipal corporations I have been confidering, yet, as relative to the; powers of the General Government it muft be deemed in fome .meafure dependent;admitting that to be the cafe (which to be fure is, fo' far as the neceflary execution of the powers of th© General Government extends ) yet in whatever character this may place a State, this can only afford areafan for a new law, Calculated to effeftuate. the power? tí she Qenerál Gov.erar ment in this new cafe : But it Sordino-reafon whatever for the Court adufitting a new a ¿lion t ift. That the Conftitution, fo far as it refpeéfs the.-judicial an* thority, can only he carried into eíFeét by ait's of the Regiflature. appointing Courts, and prefqribing their :tnethods of proceed--ing. 2d. That Congref, has provided no new.lew in tegarci ta this cafe, hut exprefaly referred as to -the old.. 3 2, That there aré no principles of ..the old law, to which we mu ft have irecourfe, that in any Planner aitthorife the- .prefent lhiV either by precedent or by analogy. The confequenee of .which, in my «pinion," clearly is, that the fuit in queftion cannot-be main* tained, nor, of courfe, the motion "made upon it be complied with.

From.- the manner in which I have viewed -tbisdubjeft,. fo different from that in which it has been contemplated by the Attorney General, it is evident, that,I have-not had, occafion-to notice many arguments offered by the, Attorney General, which certainly were very proper, as to' his extended view of the cafe, but do not affecft mine. No part of -- the Raw of Nations can apply to this cafe, as.,1 apprehend, .but-that part which is. termed “ The Conventional Law :of Nations ⅜” nor can this-any otherwife apply than as funaiihing rules of - interpreta* tion,- fincc unqueftionably the people of the United States had a right to form what kind of union, and upon what terms they pleafed, without reference to any former examples. If upon a fair conftru£tion of the Conftitution of the United States, the power contended for really exifts, it undoubtedly may bé ex* ercifed, though it be a power of the firft impreffion. If ⅛' does not exift, upon that authority, ten thoufand examples of fimilar powers would not warrant ies affhwptign. So far as this great queftion affedls the Conftitution itfelf, if the .prefent afforded, confiftently with the particular grounds of my ¿pinion, a .proper occafion for a decifion upon it, I would not ihrink from its difeuffion. But it is of extreme moment that no Judge ftiould raihly commit himfélf upon important queftions, which it is unneceffary for him to decide. • ‘My opinion being, that even if the Conftitution would admit of ..the exercife of fuch a power, a new law is neceifary for the purpofe, fince no part of the exifting law applies, this alone is fufficient to juf* tify my determination in the prefent cafe. So much, however, has been faid on, the Conftitution, that it may not be improper to intimate that my prefent opinion is.ftrongly againfi any con-ftru&ion of it, which will admit, under any circumftances. * compulfive fait againfi a State for the recovery of 'money. R think every word in the Conftitution may have its full effedl without! nvolving this confequence, and that' nothing but ex-prefs words, or an infurmountable implication (neither of which I'confider, can be found in this .cafe) would authorife the de-duftion of fo high a power. This opinion I hold, however^ with alijthe referve proper for one, which, according to my fen. t,iments in this cafe,. may be deemed in fomé meafure extra-judicial. With regard to the policy of maintaining fuch fuits, that is not for this Court to coniider, unlefs the point in all otlier re-fpecfts was very doubtful. Policy might then be argued from with a view to preponderate the judgment. Upon the queftion before us, I have no doubt. I have therefore nothing to do with the policy. But I confefs, if I was at liberty to fpeak on that fubjedl, my opinion on the policy of . the cafe would alfo differ from that of the Attorney General. It is, however, a delicate topic. I pray to God, that if the Attorney General’s do&rine, as to the law, be eftabliihed by the judgment of this Court, all the good he predifts from it-may take place, and none of the evils with' which, I' have the concern to fay, it--appears to me to be pregnant.

Blair, Jujlice. In confidering this important cafe, I have thought it belt to pafs over all the ftriftures which have been made on the various European confederations ; becaufe, as, on the one hand, their likenefs to our-own is not fufficiently clofs to juftify any analogical application ; fo, on the' other, they are' utterly deftitute of any binding authority here. The Confti-tution of t(ie United States is the only fountain from which.I lhall draw; the only authority to which I fhall 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 fubmiffion of individual States to the judicial authority* of the United States ? This is éxpréfsly extended, among other things, to controverfies between a State and citizens of another State. Is then the cafe before us one of that defcription ? Undoubtedly it is, unlefs it may be a fufficient denial to fay, that it is a cóntroverfy between a citizen of one State and another State. Can this change of order be an effential change in the thing intended ? And is this' alone a fufficient ground from which to conclude, that the jurifdiSion of this Court reaches, the cafe where a State. is Plaintiff’, but not where it is Defendant ? In this latter cafe, ihould any man be afked, "whether it -was not a cpn-troverfy-between a State and citizen of another State, muft not anfwer be in the affirmative ? A difpute between A. and B. •sturdy a difpute between B. and A. Both cafes, I havens doubt,, were intended ; and probably the State was firil named, in refpeft to the dignity of a State. But that.very dignity feems to have been thought a fufhcient reafoii for confining the fenfe to the cafe where a State is plaintiff. It .is, however,. a fuffi-cient anfwer to fay, that our Conftitution 'moil certainly contemplates,in another banch of, the cafes enumerated, the maintaining a jurifdiftion againft a State, ás Defendant; this is unequivocally afferted when the judicial power of the United States is extended to controverfies between two or more States ; for there, a State múft, of necefiity, be a Defendant. It is extended alfo, to controverfies between a State and foreign States ; and if the argument taken from the order of defignation were good, it would be meant here, that this Court might have cognizance of a fuit, where ⅛ State is Plaintiff, and. feme foreign State a Defendant, but not where a foreign State brings a fuit againft a State. This, however, not to mention that, the in-ftances may rarely occur, when a State may have an opportunity of fuing in the American Courts a foreign State; feemS to lofe fight of the policy which, no doubt, fuggefted this provi-fion, viz. That no State in the Union ihould, by withholding juftice, have it in its power to embroil the-Whole confederacy in difputesof another nature. But if a foreign State, though laft named, may, neverthelefs, be a Plaintiff againft an individual State, how can it be faid, that a controverfy between a State and a citjzen of another State means, ,from thfe mere force of the order of the words, only fuch cafes .where a State is Plaintiff? After defcribing, generally, the judicial' powers of the United States, the Conftitution goes on to fpeak of it diftribu-tively, and gives to the, Supreme Court original jurifdiftion, among other inftances, in the cafe where a State {hall be a party; but is not' a State a party as well in the. condition of a Defeii-’dant as in that of a Plaintiff ? -And is the whole force of that expreffion fatisfie'd by confining its meaning to the cafe of a Plaintiff-State ? . It feems to me, that if this Court fhould, re-fufe to .hold jurifdiftion of a cafe where a.State is. Defendant, it would renounce part of the authority conferred, and, confe-quently,. partof the duty impofed. on it-by the Conftitution 5, becaufe it would be a refufal to take cognizance of a cafe where’ a State is a party. Nor does the jurifdiftion of this Court, in relation to a State, feem to me to be queftionable, on the. ground that Congrefs has not provided any form of execution, or pointed out any mode of making the judgment againft a State, effeftual; the argument ab' in uiili may weigh much in. cafes depending upon the conftruftion of doubtful Legiilative afts, hut can have no force,; I, think, againft the clear and pofi-tive directions of lan aft of Congrejs and of the Conftitution. Let us go on as'far asi we can ; and if, at the .end of the bu» finéis, notwithftanding.the. powers given us in' the-’14th feftion of the judicial law, we meet difficulties-infurmountable tne of the parties to it is a State; certainly refpe&able, claiming to be fovereign. The queftion to be determined is, whether this State, fo refpe¿table, and whofe claim foars fo high* is amenable to the jurifdi&ion of the Supreme Court of thé United States ? This queftion, important in itfelf, will depend on others, more important ftill; and. may, perhaps, be ultimately refolved into one, no left radical than this—“ do the people of the United States form a Nation

A caufe fo confpicuous and interefting, Ihould be carefully and accurately viewed from every poffible point of fight; I ihall examine it; ijl. By the principles of general jurifprudence. id. By the laws and praéHce of particular States and kingdoms. From-the law of nations little or no illuftration of this fabje£t cap be expected. Bythatlawthe feveral States and Governments fpread over' our globe, are confidered as forming a fociety, not u nation. It has only been by a very few comprehenfive minds, fuch as thofe of Elizabeth and the Fourth Henry, that this laft great idea has been even contemplated. 3dly. and chiefly, I fhall examine the important queition before us, by the Conftituion of the United States, and the legitimate refult of that valuable inftrument.

I. I am, firft, to examine this queftion by the principles of. general jurifprudence. What Í ihall fay upon this head, I introduce by the obiervation of an original and profound writer, who, in the philofophy of wind, and all the fcienCes attendant on this prime one, has formed an sera not lefs remarkable, and far more illuftrious, than that formed by tha juftly celebrated Bacon, in another fcience, not profecuted with lefs ability, but lefs dignified as to its. object ; I mean the philofophy of matter. Dr. Reid, in his excellent enquiry into the human mind, on the principles of common fenfe, fpeaking of the fceptical and illiberal philofophy, which under bold, but falfe, pretentions. t« prevailed in many parts of Europe before he wrote, makes the following judicious remark : “.The language of philo--ibphers, with regara to the original faculties of the mind, ⅛ fo adaptéd to. the prevailing fyftem, that it cannot fit any other ⅝ like a coat drat fits the man for whom it was made, .and fhews him to advantage, which yet will, fit very aukward upon one of a different; make,, although as handfome and well proportioned. It is hardly poffible to make any innovation in our philofophy concerning the mind and its operations,-without ufing new words and phrafes, or giving a different meaning to thofi that are received.” With equal propriety may this folid remark be applied to the great fubje£t, on the principles of which the de~ cifion of this Coqrt is to be founded. The perverted ufe of genus andJpecies in logic, and of imprejjions and ideas in metaphy-jics, have never done mifehief fo extenfive or iopraclically pernicious, . as has been done, by States and fovereigns, in politics and jarifpruácnce ¡ .in the politics and jurifprudetice. even of thofe, who wiilred and meant to be free. 1⅛ the-place, of thofe ex^ prefitonsl intend not to lubftitute pew ones ⅜ b,ut the exp ref, fibns themfelves I fliall certainly ufe for purpofes-different from thofe, for which hitherto they have been frequently ufed ¾ and one pf them I ihall apply to ah abjedt ftili more different from that, 'to which it has hitherto been., mo-re frequently, ,1 may fay almoft univerfally, applied. In thsfepur-pofes, and in this application, I.fballhe juftified by example the.',molt fplendid, and by authority the -moft binding ; the example of the’molt refined as well as the moft. free .nation .known, to antiquity -, and the authority of one. of, the beft Conftitutions known to modern times; With regard.to.one. of the terms—-State—this authority is declared ; With regard tathe other—fovereign—the authority is implied only : Bu-t it is ..equally, ftrong :. For. -in an. inftrument. well drawn, as ih a poem well cpmpofed,, inepr.e is fometimes • moft expreffive

. To the Conftitution of .the UnitedJstates: the'term sovereign* is totally unknown. . There is but one place where it could have been uled with propriety. ' But, evén in-that place it would not, -perhaps, have comported with the delicacy of -thpfe, who ordained and ejiablijfjed that Conftitution. -They might have announced themfelves' “ sovereign” , people.-of the United Staes: But fereuely confcioiis-of the fact, they1 avoided the ojlentatious declaration.,

Having thus avowed my difapprobatioii of the purpofes, for which' the terms, State and fovereign, axe frequently uied,. and of the objebt, to which the. applicat-a of the laft pf them is almoft. uni'veifally lftade.j it is now proper that I ihpuld difclofe "the'meafling, which I, affign' tá both, ,and jbe application, •which'I make of the. latter. In doing this, I ihall have oo-caiion' incidently to evince, how true it is, that States and Governments'were made for man ; and, at the fame time,' how true it is, that his creatures zvAfefvants have firft deceived, next vilified, and, at ⅛⅜ opprejfed their majler and maker. Man,-fearfully and wonderfully made, is the workmanlhip of his all perfect CreAtoR : A State; ufeful and valuable as the. contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance.. When I fpeak 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 molt tranlcendantly excellent. It is concerning this conti ivance that Cicero fays fó fublimely, “ Nothing, which is exhibited upon our globe, is more acceptable to that divinity, which governs the whole uni., verfe, than thofe communities and .affemblages of men, which, lawfully alfociated, are denominated States*”.

Let a State be confidered as fubordinate to the .people : But let every thing elfe be fubordinate to the State. The latter part of this pofition is equally neceflary with the former, • For in the practice, and even at length, in the fcience of politics there has very frequently been a ftrong current againft, the natural order of things, and an inconfiderate or an intereiled difpofition to lacrifice the end to the means. As the State has claimed precedence .of the people ; fo, in the fame' inverted courfe of things. thp’ Government has often claimed precedence of the State; and to this perverlion in the fecond degree, many of the volumes of confufion concerning fovereignty. owe their exiftence. The. minflers, dignified very properly by the appellation of the magfirates, have wifhed, and have fucceeded in their wilh, to be confidered as the fovereigns of-the State. This fecond degree of perverlion is confined to the old world, and begins to diminilh feven there ; but the firfl degree; 3s ftill too prevalent, even in the feveral States, of which our union is eompofed. By a State I mean, a complete body of free perfons united together foi their common benefit, to enjoy peaceably what is their own, and to do juilice to. others. It is an artificial perfoh. It has its affairs and its interefls : It has its rules : T): has "its rights: And it has its obligations. It may acquire property diftinct from that.of its members*. It may incur debts to be difeharged out of the public flock,. not out of the private fortunes-of individuals. It maybe botíhd by contrails ; and for'damages arifing from the breach of thofe contrails. .In all our contemplations, however, concerning this feigned and artificial perfon, we ihould never forget, jh'at, in truth and nature, thofe, who think and fpeak, and ⅞¾ are men.

Is the foregoing defcription of'a State a true defcription i It will not be queftioned but it is.. Is there any part of .this def-cription, which’intimatcs, in the remoteit manner, that a State, any mo.ré than the men who compofe it, ought not to do juftic© and fulfil engagements ? It will not be pretended that there is. If juftice is not done ; if engagements are not fulfilled,j is it upon general principles of right, lefs proper, in the cafe of a great number, than in the cafe of an individual, to fecure, by compulfion, that, which will not be voluntarily performed ? Lefs proper it furely carinotbe. The only reafon, I believe, why a free man is bound byhuman, laws, is, that he binds himfelf. Upon th© fame principles, upon which he becomes bound by the laws, he be- ’ comes amenable to the Courts of Juftice, which are formed and authorifed by thofe laws. If one free man, an original Sovereign, may do all this ; why may not an aggregate of free men, a collection of original fovereigns, do this like wife ? If the dignity of each Jingly is undiminiihed •, the dignity of all jointly muft be unimpaired. A State, like a merchant, makes a contract : A diftioneft State, ⅝ like a diihoneft merchant, wilfully refufes to difcharge it : The latter is amenable to a Court of Juftice : Upon general principles Of right, lhall the former when fummon-eA to anfwcr.the fair demands of its creditor, be permitted, proteus-like, to aflume a new appearance, and to infult him and juftice, by declaring I am a sovereign State ? Surely not. Before a claim, fo contrary^ in its firft appearance, to the general principles of right and equality, be fuftained by a juft and impartial tribunal, the perfon, natural or artificial, entitled to make fuch claim,, fhould certainly be well known and authenticated. Who,or what, isa Sovereignty ? What is his or its fo-vereignty ? On this fubjedt, the errors and the mazes are end-lefs arid inexplicable.' To enumerate all, therefore, will not be expedled: To take, notice of fome will be neceflary to the frill illufiration of the prefent important caufe-In one fenfe, the termfovereign has for - its correlative, fubjeB, In this fenfe, the term can receive no application j for it has 'no object in the Conftitution of the United States. Under' that. Conftiturion 'there are citizens, but no fubjeBs. that a State might be made Defendant,, why was-it. foexpreffed as naturally to lead to and-comprehend- that idea ? Why w as not an exception made if one'was intended ?.

Again —what are w:e to do,with the laft elaufe of. the febtion of judicial powers, viz. Gontr.overfes between, a fate, or. the citizens thereof, and. foreign fates or citizens ?” Here again, States muft be fuable or liable to be made Defendants, by this elaufe, which has a fimilar mode of language with the two other claufes I have remarked upon. For if. the judicial power exr tends to a controverfy between one of. the United States and a foreign State, as the elaufe expreffes, one of them muft be Defendant. . And thenj what becomes of the fov.ereignty Of States as. far as filing affebts, it ? .- But although the words, appear reciprocally to affeñ the State here and a foreign State,, and put them on the fame footing as far as may be,, yet ingenuity may, fay, that the State here may. fue, but cannot be fued.j but that the foreign State may be fued but cannot fue. We may touch foreign fovereignties hut not our own.. But I conceive the reaT fon of the thing, as well, as the words of the Cpnftitution, tend to ihew that the Feed eral Judicial power, extends to a fuit brought by a foreign State againft any one of the United States. One defign of the general. Government was for managing the great affairs of peace and war and the general-defence^ which were impoffible to be condudled, with fafety, by the Statesyi-paratdy. • Incident to thefe powers, and. for preventing contro-v.erfies between, foreign powers, or citizens from rifing to extremities and toan appeal to the fword, a national tribunal was iieceffary, amicably to decide them, and thus ward' off fuch fatal, public calamjty. Thus, States.at home and-their;citizens, and foreign States and their citizens! are put together withoutdiftinftion upon the fame tooting, as far as may be, as-to contro-. verfies between them* So alfo, with refpefil to controverfies between a State and citizens of another State’(at home) comparing all t: e claufes together, the remedy is' reciprocal ; the claim to juftice equal. As controverfies between State and State, and between a State and citizens of another State, might tend dually to involve States in war and bloodihed, a difinterefted civil tribunal was intended to be inftituted to decide fuch con*, troverfies, and preferve peace and friendfhip.- Further ⅜ if a State is entitled to Juftjqe in the Fcederal Court, againft a citizen of another State, why not fuch citizen againft the State,' when the fame language equally comprehends both ? The rights of individuals and the j uiiice due to them, are-as dear and precious as thofe of States. Indeed'the latter are founded upon the former ; and the great end and objedt of them muít be to fecure and fupport the rights of individuals, or elfe vain is Government.

But {till it' may be infilled, that this will reduce States' to-mere corporations, and take away all fovereignty. As to corporations, all States whatever are corporations ox bodies politic. The only quellion is, what are their powers ? As to individual States and the United States, the Conftitution marks the boundary of powers. Whatever power is dcpofited with the Union by the people for their own neceflary fee urity, is.fo far a curtailing of the power and prerogatives of States. This is, as it were, a felf-evident propofition ; at leaft it cannot be contefted. Thus the power of declaring wár, making peace, railing and fupporting armies for public, defence, levying duties, cxcifes and taxes, if neceflary, with many other powers, are lodged in, Congrefs j and are a moil eflential abridgement of Stare fovereignty,' Again ; the reitriftions upon States ; “ No State ihall enter into any treaty, alliance, or confederation, coin, money, emit hills of credit, make'any thing bid gold and fiver a, tender in payment of debts, pafs any Jaw impairing the obligation of contrasts f thefe, with a number of others, are important reftridlions of the power of States, and were thought necef-fary to. maintain the Union; and to eílabiifti fome fundamental uniform principles of public juftice, throughout the whole Union. So that, I think, no argument of force can be taken from the fovereignty of States. Where it has been abridged, it was thought neceflary for the greater indifpcn fable good of the whole. If the Conftitution i& found inconvenient in praftice in this or any other particular, it is well that aregular mode is, pointed out for amendment. But; while it remains,'all offices Legiflative, Executive, and Judicial, both of the States and the Union, are bound by óath tq fupport it. One other objeftion has been fuggefted, that if a State may be fued by a citizen of another State, then the United States may be fued by a citizen of any of the. States, or, in otheT words, by any of their citizens. Jf this be-a neceffary confe-quence, it.muft be fo. I doubt the confequence,. from the different wording of the different claufes, connected with other reafons. When fpeaking of the United States, the Conftitution fays “ controverftes to -which the United States fall he a party” not controverftes between the United States and any of their citizens. When fpeaking of States, it fays, conireverftes he* tween two or more fates ; between a fate and citizens of another date” As to reafons for citizens fuing a different State, which do not hold equally good for fuing the United States ; one may be, that as controverftes between a State and citizens of another State, might have a tendency to involve both States'in conteft, 'and perhaps in war, a common Umpire to decide fuch controver-fíes, may have a tendency to prevent the mifehief. That an object of this kind was had in view by the framers of the Confti-tution, I have no.doubt, when I confider the claihing interfering laws which were made in the neighbouring States, before the adoption of the Conftitution, and fome affecting the property of citizens of another State in a very different manner from that of their ow.n citizens. But I do not think it neceffa-ry to enter fully into the queftion, whether the United States are liable to be fued by an individual citizen ? In order to decide the point before us. Upon the whole,. I am of opinion, that the Conftitution warrants a fuit again a State, by an individual citizen of another State,

A fecond queftion made in the cafe was, whether the particular action of ajfumpftt could lie againft a State ? I think af-fumpfit will lie, if any fuit; provided a State is capable of contra&ng.

The third queftion refpefls the competency of fervice, which I apprehend is good and proper ; the fervice being by fummons and notifying the fuit to the Governor ana the Attorney General -, the Governor, who is the Supreme Executive Magiftrate and.reprefentative of the State,- who is bound by oath to defend the State, and by the Conftitution to give information to the Le-gillature of all important matters which concern' the inteieft of the State j the Attorney General who is bound to defend the • iptereft of the State in Courts of Law.

Jay, Chief Juf'iee. ' The queftion we are now to decide has been accurately ftated, viz. Is a State fúable by individual citizens of-another State P

It is Laid, that Georgia refufes to appear and anfwer to the Plaintiff in-this adtio'n, becaufe {he is a fovereign State, and therefore not liable to fuch actions. In order to afeertain the mefits of .this objection, let us enquire, lit. In what fenfe Georgia is fovereign State. 2d. Whether fuability is incomputable with fuch fevereignty. 3d, Whether the Conftit-ution (to which Georgia is a party) authorifes fuch an attio'n againft her. Suability znd ftiable are words not in common ufe, but they conciiely and correCtly convey the idea annexed to them.

1st. In determining the fenfe in which Georgia is a fovereign State, it may be ufeful to turn’our attention to the political fitu-aiion we were in, prior to the Revolution, and to the political rights which emerged from the Revolution. All the tountry now poifefled 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, fubjects of the King of Great Britain, and owed allegiance to him ; and all the civil authority then exifting or exercifed here, flowed from the head'" of the Briti/h Empire. •They were in fenfe fellmv fubjeéls, and in a variety of refpe£t& one people. When the Revolution commenced, the patriots did not aflfert that only the fame affinity and focial con - neflion fubfifted between the people, of the colonies, which fub-filled between the people of Gaul, Britain, and Spain, while Roman Provinces, viz. only that affinity and focial connection which refult from the mere circumftance of being governed by the fame Prince ; different ideas prevailed, and gave occafjon to the Con-grefsoi 1774 and 1773-.

The Revolution, or rather-the Declaration of Independence* found the people already united for general purpofes, and at the fame time providing for their more domeltic concerns by State conventions, and other temporary arrangements. From the crown of Great Britain, the fovereignty of their country palled to. the people of it ; and it was then not an uncommon opinion, that tfie unappropriated lands, which belonged to that crown, paffed not to the people of the Colony or States within wholelimits they were fituated, but to the whole people; on whatever principles this opinion relied, it did not give-way to the other, and thirteen fovereignties were confidered as emerged from the principles of the Revolution, combined with local convenience and conlklerations ; the people neverthelefs continued to conlider themfelves, 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 bafis of a general Government.' Experience difappoirited the expectations they had formed from it; and then the people, in their collective and national capacity, eilablijhed the prefent Conllitution. It is r®- markable.that in eftablifhing it, the people exercifed their own rights, and their own proper fovereignty, and confcious of the plenitude ''of it, they declared with becoming dignity, “ We *ithe people of the United States, do ordain and eftabliih this and hence it plainly follows, that friability and fíate fovereignty are not incompatible. As one State may fue another State itt this Court,, it is plain .that no degradation toa State is thought to accompany her appearance in this Court. It is not therefore to an appearance in this Court that the objefilion points» To what does it point ? It points to an appearance at the füit of one or more citizens. But why it fhould be more incompatible, that all the people of a State fhould be fued by one citizen, •, than by one hundred thoufand, I cannot perceive, the procefs in both cafes being alike ; and the confequenees of a judgment alike. Nor can I obferve any greater inconveniencies in the One ^cafe than in the other,' except what may arife from the feelings of thofe who may regard a leiTer number m an inferior light-. But if any reliance be made on this inferiority as an objection, at leaft one half oí its force is done away by this fa¡S, viz. that it is conceded that a State may appear in this Court as Plaintiff againft a fingle citizen as Defendant; and the truth is, that' the State of Georgia is at this moment profecuting an a ¿lion in this Court againft two citizens of South Carolina.*

The only remnant of objection therefore that remains is, that the State is not bound to appear and anfwer as a Defendant at the fuit cf an individual t but why it is unreafonable that {he fhould be fo bound, is hard to conjecture : That rule is faid td bé a bad one, which does not work both’ ways 5 the citizens of Gorgin'are content with a right of fuing citizens of other States; but are not content that citizens of other States fliould have a right to fue them-.

Let us now proceed-to equire whether Georgia has not, by being a party to the national compact, confented to be fuable by individual ^citizens of another State. This enquiry naturally 'leads our attention, ill. To the defign of the Conftitution» 2d. To the letter and exprefs declaration in it.

Prior to the date of the Conftitution, the. people had not any national tribunal to which they could refort for juftice ; the diftribution of juftice was then confined to State judicatories, in whofe inftitution and organization the people of the other States had'no participation, and over whom they had not the leaft controul. There was then no general Court of appellate • jurifdidtion, by whom the errors of State Courts, affecting either the nation at large or the citizens of any other State, could be revifed and corrected. Each State was obliged to, acquiefce ,iii the meafure of juftice which another State might yield to her, or to her citizens; and that even in cafes where State con-fiderations were not always favorable to the mod exadt meafure. There was danger that from this fource .animofities would in time réfult; and as the tranfition from animofities to hoftilities was frequent in the hiftory of independent States, a common tribunal for the termination of controverfies became defirable, from motives both of juftice and of policy.

Prior alfo to that period, the United States had, by taking a place among the nations of the earth, become amenable to the. laws’of nations; find it was their intereft as well as-; their duty to provide;. that thofe laws íhould be refpedted and obeyed ; in their national character and capacity, the United States -were vefponfiblc to foreign nations for .the cóndudt of each State, relative to the laws óf nations, and the performance of treaties ; and there the inexpediency of referring all fuch queftions to State Courts, and particularly to the Courts of delinquent States became apparent. While ail the States were bound to protedt each, and the citizens of each, it was highly proper,and reafona-ble/that they íhould be in a capacity, not only to caufe juftice to-be done & each, and the citizéns of each; but alfo to caufe juf-iice. to be done by each, and the citizens of each; and that, not by violence and force, but in a ttáble; fedate, and regular courfe of judicial procedure.

Thefe weje among the evils againft which it was proper for the nation, that is, the people of all the United States, to pro- ' vide by a national judiciary, to be inftitutedby the whole nation, and to" be vefponfible to the whole nation.

Let us now turn to the Conftitution. The people therein declare, that their defign in eftabliihing it, comprehended fix objedts. 1 ft. To form a more perfedt union. 2d. Toeftabliih juftice. 3d. To eiifure domeftic tranquillity. 4th. To provide for the common defence. .5 th; To promote the general welfare.- 6th. To fecuve the bleffings of liberty to themfelves and théir poftérity. It would be pleafing and ufcful to confider and trace the relations which each of thefe objedts bears to the others; and to íhew that they colle&ively comprife every thing requi-fite, with the bleffing of Divine Providence* to render a-people profperous and happy ; on the prefent o.ccafion • fuch diiquifi-tions woúld be unfeafonable, becaufe foreign to the fubjedt immediately under confideration.

It may .he aflcedj. what-is the ¡ preeife fenfe and latitude in which the words “ to cflablijh jujlicc ” as,here fifed, .are to be underftood ? The anfwer-to this queftion. will refult from the provifiohs made in the Conftitution on this head.. They are Specified in the 2d. fedrion of the 3d article, where it is ordained, that the judicial power of the United States-ihall extend to ten deferiptions of cafes, viz. ift. To all cafes arifing under this Conftitution j becaufe the meaning, conftruction, and operation of a compadt ought always to be.afcertained by all the parties, or by authority derived only from one of them.' 2d. To all cafes arifing under the laws of-the United 'States j be-caufe as fuch laws conftitutionally made,- are obligatory on each State, the meafure of obligation and obedience ought not to be decided and fixed by the party frotn whom they.-are due, but by a .tribunal deriving authority from both the parties..- 3d. To'all cafes arifing. under' treaties made by their authority-; -be-caufe, as treaties are compádls made by, and obligatory 01ft the whole- -nation, their operation ought not to be affected .or regulated by the fecal laws or Courts of a part of the nation. 4th. To-all cafes 'affedting Ambaffadors, or other public ‘ Minifters and Confuís •, becaufe, as thefe are officers of foreign nations, whom this nation are bound to protedt and treat according to the laws of nations, cafes affedting them ought only to be cognizable by national authority. 5th. To. all cafes of Admiralty and Maritime j.urifdidtion; becaufe, as the feas-are the joint property of nations, whófe right and privileges relative, thereto, are regulated by the law of nations and treaties,, fuch cafes neceflaiil.y belong to national jufifdidtion. 6th-To controver-fies to which the United States ihall he a party j becaufe in cafes in which the whole .people are interefted, it would not be equal or wife' to let any one State decide and meafure out the juff ice due to others. 7th. To. controverfies between, two or more States ; becaufe domeftic tranquillity .requires, that the contcu-tionsof States ffiould be peaceably terminated by a common judicatory .; and, becaufe,. in a free country j-uftice ought not-to depend on the will of either of the litigants. • 8th. To con-troverfies between a State and citizens of another State ; be-caufe in cafe a State (that is all the citizens of it) has demands againft. fome. citizens'of another State, it is better that llie. ffiould prcfecute their demands in-a national Court,' than in a Court of the State to-which thofe citizens belong ; the danger of irritation⅛ and criminations arifing from apprehenfions and fufpicions of partiality, being thereby obviated. Becaufe, fo cafes where fome citizens of one State have demands againft all the citizens of another State, the caufé of liberty and. the. rights of men forbid, that the latter fliould be the foie Judges, of the juflice due to the latter •, and true-Republican Cavern-, ment requires that free and equal citizens fhould have free, fair, and equal juflice. pth, To controverfies. between citizens of the fame State, claiming lands under grants of different States ; becaufe, as the rights of. the two States to grant the'land, are drawn into queftion, neither of .the two States ought to decide .thecontroverfy. icth,' To.contro.verfies between a State, or the citizens thereof; and foreign States, citizens or fubjedls j becaufe, as every nation is refponfible for the conduit of its citizens towards-other nations ; all queftions touching the juf-i tice due to foreign nations, or people, ought to be afeertained by, and depend on.natipnal authority.' Even' this curfory view-of the judicial powers of the - United States, leaves the mind ftrongly imprefled with the importance of them to the prefer-, vhtionof the tranquillity, the equal, fovereignty, and the equal right 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 con-strued 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, wife, 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 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 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 cleanly 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 against citizens of another State, or by the latter againsthe 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, to 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 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 candor urges me to mention, a circumstance, which seems to favor the opposite side of the question. It is this: the fame 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 contreversies 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 some 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 a actions against States or individual citizens, the National Courts are supported in all their legal and Constitutional proceedings and judgments, bthe arm of the Executive power of the United Slates 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 cafe 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 cafe; nor does it appear to me necessary to shew that the sentiments of the best writers on Government and the rights of men, harmonize with the principles which direct my judgment on the present question. The acts of the 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 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 wife, 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 confequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Court's 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 courfe of Conilitutional 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 esltblished, 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 snew cause to the contrary in this Court, by the first day of next Term, judgment by default shall be entered against the said State.*

THE Court being met, a commission appointing William Paterson, one of the Justices, bearing, date the 4th of March, 1793, was read; and he was qualified according to law.†

*

Ant. b.

*

Som, Sup. c. 3.

*

Ait. i. s, T -Írí. 3.-'r. 3. Art. *

Fait. B. 1, a #.<⁴*

*

Jit, 113;

†

i Sl, t Com, ciu. 2.42.

†

Sid. 53 u

*

Mol. 71. Book it.

†

§

Com. 104.

‡

Brae. .icy. Com,--104.

||

Q, fl IZ⁴<,

¶

Col. Jur. 68, ‘*'War, 347:

†

Efi 155.. ' i Bt. 155,=

*

27.. J. 2. v. 54. Pol, J.2, one of the words, of1 which democracy in compounded.

*

* * * * *

†

Brae, 107.

*

Art. 5. s. 2.

*

Georgia v. 'Zrqilsford, et ah Ant. 1,

*

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 mice 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.

†

Judge Paterson’s appointment was in the room of Mr. Justice Johnson, who had resigned.

The Malignant Fever, which during this year, raged in the City of Philadelphia, dispersed the great body of its inhabitants, and proved fatal to thousands, interrupted, likewise, the business of the Courts; and I cannot trace, that any important cause was agitated in the present Term.

†

See Gast's Hist, of Greece ¡ p, 321.

A

. 231.'

.Él. -4.5—5a. 147, i-6'j—i6i.