The judiciary as mentioned, as to silence the clamors, or more properly, soften the disappointment of smaller characters, to nominate Mr. Blair and Colonel Pendleton as associate and district judges, and Mr. Edmund Randolph for the attorney-general, trusting to their acceptance.' And of Mr. Randolph, 'in this character', he said, 'I would prefer to any person I am acquainted with of not superior abilities, from habits of intimacy with him' (ibid., p. 26). Washington, apparently, would have liked to appoint Mr. Edmund Pendleton to the Supreme Court, but he feared that his health would not permit him to undertake the duties of an associate under the present form of the act', which required the justices to travel on circuit. But he felt that Mr. Pendleton might be willing to accept the district judgeship if 'the reason of his being preferred to the District Court rather than to the Supreme Court' were explained to him. Although, President Washington added, he had 'no objection to nominating him to the latter, if it is conceived that his health is competent, and his mental faculties are unimpaired by age.1 In a letter to his judicial appointees, dated September 30, 1789, Washington the chief thus stated to them his belief that the judiciary was the chief pillar upon which the pillar' of Government of the more perfect Union must rest : the national government. Chief Jus I experience peculiar pleasure in giving you notice of your appointment to the office of an associate judge in the Supreme Court of the United States. Considering the judicial system as the chief pillar upon which our national government must rest, I have thought it my duty to nominate for the high offices in that department, such men as I conceived would give dignity and lustre to our national character; and I flatter myself that the love, which you bear to our country, and a desire to promote the general happiness, will lead you to a ready acceptance of the enclosed commission, which is accompanied with such laws as have passed relative to your office.2 To Jay, whom he had offered any post under the Government he might desire, tice Jay. Washington thus wrote on October 5, 1789: Attorney- dolph. It is with singular pleasure that I address you as Chief Justice of the Supreme Court of the United States, for which office your commission is enclosed. In nominating you for the important station, which you now fill, I not only acted in conformity to my best judgement, but I trust I did a grateful thing to the good citizens of these United States; and I have a full confidence, that the love which you bear to our country, and a desire to promote the general happiness, will not suffer you to hesitate a moment to bring into action the talents, knowledge, and integrity, which are so necessary to be exercised at the head of that department, which must be considered as the key-stone of our political fabric.3 And to Edmund Randolph, his choice for the Attorney-Generalship, Washington wrote under date of September 27, 1789: Impressed with a conviction, that the due administration of justice is the firmest pillar of good government, I have considered the first arrangement of the judicial department as essential to the happiness of our country, and to the stability of its political system. Hence the selection of the fittest characters to expound the laws, and dispense justice, has been an invariable object of my anxious concern. I mean not to flatter when I say, that considerations like these have ruled in Pendleton, although crippled for life in 1777, was then only 68, was still young enough for the bench, if we are to judge by the experience of the past century, and his experience as President of the Court of Chancery of Virginia from 1777 to 1788 and President of the Virginia Court of Appeals from 1779 until his death in 1803, not to speak of his immense experience as a colonial statesman, would have been of great advantage to the court in its formative stage. 3 Ibid., pp. 35-6. 2 Jared Sparks, The Writings of George Washington, vol. x, p. 35. the nomination of the attorney-general of the United States, and that my private wishes would be highly gratified by your acceptance of the office. I regarded the office as requiring those talents to conduct its important duties, and that disposition to make sacrifices to the public good, which I believe you to possess and entertain. In both instances I doubt not the event will justify the conclusion. The appointment. I hope will be accepted, and its functions, I am assured, will be well performed.1 ciate justices. Of the five justices Messrs. Wilson, Cushing, and Blair permanently accepted; The assoColonel Harrison declined in order to accept the Chancellorship of Maryland, to which he was unanimously chosen five days after his confirmation as Justice, even although Washington returned his commission in the hope that further consideration might lead to its acceptance, which it did not; and John Rutledge, after acting for a few months, preferred the Chief Justiceship of South Carolina until Washington appointed him Chief Justice of the Supreme Court of the United States, to fill the vacancy caused by the resignation of the office by John Jay to become Governor of New York. The vacancies caused by the refusal of Col. Harrison, a companion in arms of the President, and Rutledge's resignation, were filled, respectively, by the appointment of James Iredell, a distinguished lawyer of North Carolina, and Thomas Johnson of Maryland, likewise a distinguished lawyer of his State and in addition an intimate friend of the President, whose nomination as Commander-in-Chief he had moved many years before in the Continental Congress. whether a State sued by an indivi There was at least reasonable doubt whether the judicial power of the United Question States extended generally to cases or controversies between a State and citizens of another State, or only to litigation in which a State was party plaintiff. The Federalist could be had declared jurisdiction to be without a colour of foundation', and John Marshall, defending the Constitution in the Virginia Convention, squarely and unequivocally dual in stated his hope that no gentleman will think that a State will be called at the bar of the federal courts. . . . It is not to be supposed that a sovereign power shall be Court dragged before a Court'. However this may be, the first suits against States in the Supreme Court of the United States were those in which private citizens of different States were parties plaintiff, and we are prepared for acceptance of jurisdiction of these suits by a court of which John Jay was Chief Justice and James Wilson was the dominating member. For in 1785 Jay had written : It is my first wish to see the United States assume and merit the character of one great nation whose territory is divided into different States merely for more convenient government and the more easy and prompt administration of justice, just as our several States are divided into counties and townships for the like purpose. And Wilson had actually advocated on the floor of the Constitutional Convention the division of the States.2 1 Jared Sparks, The Writings of George Washington, vol. x, p. 34. In a note to p. 433, vol. xi, of his edition of the writings of George Washington, Mr. Ford says: 'As early as July 10th Washington had talked with Cyrus Griffin, of the Virginia delegation, on the judiciary and customs appointments in Virginia, and appeared anxious to know if Edmund Pendleton, George Wythe, Lyons, or John Blair would prefer a federal to a State appointment. Edmund Randolph was also suggested, but no mention was made of particular offices for the person to be named. Late in July or early in August, the President wrote to Madison that he had determined to nominate Mr. Blair and Colonel Pendleton as associate and district judges, and Randolph as Attorney-General. . . . Pendleton declined to serve, and Cyrus Griffin was named in his place.' Gaillard Hunt, The Writings of James Madison, 1902, vol. iv, pp. 335-6. the Su preme The assumption of jurisdiction, in accord with the letter it may be, but assuredly counter to the spirit of the Constitution, met with an immediate response on the part of the States, for within two days after the decision of the Supreme Court in the case settled in of Chisholm v. Georgia (2 Dallas, 419), decided on February 18, 1793, the eleventh the nega- amendment was proposed to the Congress, formally withdrawing jurisdiction in such tive by cases, a solemn warning to courts of limited jurisdiction to remain within their limits, which has fortunately not been lost upon the Supreme Court in its subsequent career. These early cases, however, are of interest, as, in and through them, the procedure was adopted which has since been followed in controversies between States of the Union, and the subsequent cases, in which attempts have been made to circumvent the eleventh amendment by suing an official of the State instead of the State itself, are valuable as showing that a court composed of learned and upright judges can be trusted to keep within the limits of their jurisdiction if they are stated in clear, precise, and unequivocal terms. These two categories of cases are therefore briefly considered before taking up the controversies to which two or more States were unquestionably parties litigant. As has been said, the first cases in which a State of the Union was sued in the Supreme Court of the United States were brought by individuals, but the exercise of this right, if it existed, caused such an outburst of feeling on the part of the States, and commotion among their people, that the 11th amendment to the Constitution was passed forbidding such suits, which the Supreme Court very wisely interpreted as First case applying to pending as well as contemplated suits. The first case of a suit of a State of a suit against a State was that of New York v. Connecticut (4 Dallas, 1). It was begun in the very year in which the 11th amendment was proclaimed and became effective. The jurisdiction of the Supreme Court was undoubted in such cases, for the second section of the third article of the Constitution expressly says that the judicial Power shall extend... to Controversies between two or more States', and it is common knowledge that the Supreme Court was vested with the jurisdiction conferred upon the courts by the 9th of the Articles of Confederation to create commissions for the trial and decision of suits between the States. between two States (1799). Further legisla tion re One further reference is necessary before taking up the controversies themselves. The grant of jurisdiction, full and complete, regarding the States, required legislation to render it effective in practice, which was done by the act of September 24, 1789, in which of the first Congress of the more perfect union known as the Judiciary Act, of which a State is section 14 reads as follows: garding disputes a party (1789). Doubts The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a state is a party, except between a state and its citizens; and except also between a state and citizens of other states, or aliens, in which latter case it shall have original but not exclusive jurisdiction. In deciding the matter of procedure in the case of New Jersey v. New York as to pro- (5 Peters, 284, 291) in the January term of 1831, Mr. Chief Justice Marshall refused to state the procedure to be followed on final hearing, saying: cedure. But inasmuch as no final decree has been pronounced or judgment rendered in any suit heretofore instituted in this court against a state; the question of proceeding to a final decree will be considered as not conclusively settled until the cause shall come on to be heard in chief. This remark of the Chief Justice was made in the sixth of the suits between States filed in the Supreme Court, and it was not until the fifteenth suit, that of Rhode Island v. Massachusetts (4 Howard, 591), decided in 1846, that a final decree was entered in a suit between States. ment of dure. This simple statement is full of meaning and has an importance of its own that Gradual can only be obscured by argument. The suit of a State against State in a court of developjustice was a new proceeding. The lawyers appearing for the States and trying the procecases were unfamiliar with procedure, because that procedure was unknown, and was to be developed through the contention of counsel and the decision of the judges in the court room. The judges themselves hesitated to prescribe procedure to be followed, lest they should unwittingly prejudice the rights of the majestic litigants appearing before them. Therefore, counsel and judge felt their way, the one advancing a contention necessary to the consideration of his case, the other prescribing a form of procedure springing from the circumstances, and calculated to do justice in the case under consideration, and calculated not to do injustice in cases otherwise circumstanced, which might one day be presented to the court. The function of the lawyer as an officer of and adviser to the court cannot be displayed to better advantage than in these cases; the open mind becoming a judge is illustrated by them— simple if between individuals, extraordinary because of the parties to them. They trod together an unknown path; their successors have not needed to retrace their steps, and the path has led through judicial settlement to international peace. The Supreme Court apparently recognized the gravity of the questions, but met them fairly and squarely when they presented themselves. .II. THE SUABILITY OF STATES BY CITIZENS OF OTHER STATES: REASONS FOR THE ELEVENTH AMENDMENT TO THE CONSTITUTION: First case of suit by an indi vidual against a State Oswald v. New In 1792, in the February term of that year, one Oswald, an administrator, began a suit against the State of New York (2 Dallas, 401); a writ was issued against the State and placed in the hands of the marshal for service. It was duly served, and counsel moved to compel an appearance on the part of the State'. The subsequent proceedings, as far as this special phase of the question is concerned, are stated in the following sentence: While, however, the court held the notion under York advisement, it was voluntarily withdrawn, and the suit discontinued '. Later in the (1792). year, however, counsel appear to have gathered courage, and returned to the charge. The question was again submitted to the court, and it was decided by it, after advisement, that the marshal should serve the summons and make a return of it, as in cases against individuals. Thus, the court ordered, to quote the language of the official report, 'that the marshal of the New York district return the writ to him directed in this cause, before the adjournment of this court, if a copy of this rule shall be seasonably served upon him, or his deputy, or, otherwise, on the first day of the next term.' This was the second step; the third and final step was taken in the February term of 1793. The summons had been issued, placed in the hands of the marshal, Oswald, administrator v. State of New York (2 Dallas, 402). Decision and apparently served upon the State. The report of the case is very brief, consisting of two paragraphs, and the decision is as weighty as it is brief. Thus, the first paragraph says: Proclamation was made in this cause, that any person having authority to appear for the State of New-York is required to appear accordingly.'... No person having appeared for the State of New York, counsel for plaintiff moved that judgement be entered by default against the State, which motion was granted by the court, as stated in the second paragraph of the official report : Unless the State appears by the first day of next Term to the above suit, or in Oswald show cause to the contrary, judgment will be entered by default against the state.1 v. New York of Chisholm v. Georgia (1793). That is to say, in these three phases of Oswald v. the State of New York, the question had been raised and decided that the State could be summoned before the Supreme Court of the United States by a writ served upon a person representing the State, and that, as in suits at common law against an individual, judgement would be entered by default if the State, duly summoned, failed to appear and to litigate the case. The question of principle was thus settled. It remained, however, to be applied to the facts of a case and a judgement rendered by the court upon the facts as preThe lead-sented. This took place in the same February term of 1793, in the great and leading ing case case of Chisholm v. Georgia (2 Dallas, 419). The facts of the case material to the present purpose are, that one Chisholm, a citizen of the State of South Carolina, as executor of his testator, likewise a citizen thereof, claimed a certain sum of money as due from the State of Georgia to the estate whereof he was executor; that, to recover this sum, suit was begun by Chisholm against the State in the Supreme Court of the United States in the August term of 1792. A notice of the action was placed in the hands of the marshal for the Eastern District of Georgia, the notice was served by the marshal of that district upon the Governor and Attorney-General of the State, and, on August 11, 1792, Mr. Edmund Randolph, the first Attorney-General of the United States, made the following motion: That unless the state of Georgia, shall, after reasonable previous notice of this motion, cause an appearance to be entered, in behalf of the said State, on the fourth day of the next Term, or shall then shew cause to the contrary, judgment shall be entered against the said State, and a writ of inquiry of damages shall be awarded. In order, however, to quote the exact language of the report, 'to avoid every appearance of precipitancy, and to give the State time to deliberate on the measures she ought to adopt, on motion of Mr. Randolph, it was ordered by the Court, that the consideration of this motion should be postponed to the present Term'. The case, therefore, came to a hearing in the February term, at which time Messrs. Ingersoll and Dallas, to quote again the report of the case, presented to the Court a written remonstrance and protestation on behalf of the State, against the exercise of jurisdiction in the cause; but, in consequence of positive instructions, they declined taking any part in arguing the question.' Mr. Randolph, however, on behalf of the plaintiff, made an elaborate argument at the request of the court, covering the points which that august body believed to be involved, and upon which the Judges wished to have the benefit of argument. This part of the case is thus stated in the report: 2 Dallas, 415. |