It has been expressed, as the pleasure of the Court, that the motion should be discussed, under the four following forms: Ist. Can the State of Georgia, being one of the United States of America, be The four made a party-defendant in any case, in the Supreme Court of the United States, questions at the suit of a private citizen, even although he himself is, and his testator was, a citizen of the State of South Carolina ? 2nd. If the State of Georgia can be made a party defendant in certain cases, does an action of assumpsit lie against her? 3d. Is the service of the summons upon the Governor and Attorney General of the State of Georgia, a competent service? 4th. By what process ought the appearance of the State of Georgia to be enforced? for decision. In view of the fact that each member of the Supreme Court expressed himself on these subjects in an individual and detailed opinion, in which the question of the suability of a state was considered on principle before the adoption of the Constitution, but in the light of the terms of that now venerable instrument modifying or changing the principle and the practice of courts in this respect, it may not seem to be advisable to analyse Mr. Randolph's argument. However, in addition to its Arguability, it has an added weight as coming from a man who had himself been ment of Attorneya leading member of the Convention which drafted the Constitution and of the General Convention of Virginia which ratified it. Some passages will therefore be quoted Randolph from his argument.1 plaintiff. In the first place, he said: The Constitution and the Judicial Law are the sources from which the jurisdiction of the Supreme Court is derived. The effective passages in the Constitution are in the second section of the third article. The judicial power shall extend to controversies between a State and citizens of another State.' In cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.' The judicial act thus organizes the jurisdiction, delineated by the Constitution. 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 and aliens, in which latter case, it shall have original, but not exclusive jurisdiction.' Upon this basis we contend: Ist. That the Constitution vests a jurisdiction in the Supreme Court over a State, as a defendant, at the suit of a private citizen of another State. 2d. That the judicial act recognizes that jurisdiction. The Constitution, he contended, vests the Supreme Court with jurisdiction of a suit against a State brought by a private citizen of another State for two reasons: first, according to the letter; and, second, according to the spirit of the Constitution. The judicial power, he reasons, is extended to controversies between a State and citizens of another State. Omitting the argument that might be drawn from the use of the word' between ', he passes to the paragraph of the Constitution in which it is said that the Supreme Court has original jurisdiction in cases in which a State shall be a party, and that a State is a party whether it is plaintiff or defendant. A controversy between A B and CD would, he said, appear to be between C D and A B. Had it been the intention of the framers of the Constitution to limit the Supreme Court to original 1 Chisholm v. State of Georgia (2 Dallas, 419–41). for the Text of the Con stitution. Spirit of the Con stitution. The Court and the sove. jurisdiction of a suit by a State against a citizen of another State they might have done so, but they did not. On this point Mr. Randolph says: Nay, the opportunity fairly occurs, in two pages of the judicial article, to confine suits to States, as plaintiffs, but they are both neglected, notwithstanding the consciousness which the convention must have possessed, that the words, unqualified, strongly tended, at least, to subject States as defendants. Mr. Randolph next contends that, in addition to the letter, the spirit of the Constitution is with his interpretation. To make this assertion good, he quotes the various instances from the Constitution in which the actions of States are to be annulled; and thus', he says, 'is announced to the world the probability, but certainly the apprehension, that States may injure individuals in their property, their liberty, and their lives; may oppress sister States; and may act in derogation of the general sovereignty.' If acts of this kind are committed affecting citizens of other States, the States are to be called to account. 'Are States,' he says, 'then to enjoy the high privilege of acting thus eminently wrong, without controul; or does a remedy exist? . . . The common law has established a principle, that no prohibitory act shall be without its vindicatory quality; or, in other words, that the infraction of a prohibitory law, although an express penalty be omitted, is still punishable. Government itself would be useless, if a pleasure to obey or transgress with impunity, should be substituted in the place of a sanction to its laws.' After admitting that actions of the State 'may be annihilated', he says: But this redress goes only half way; as some of the preceding unconstitutional actions must pass without censure, unless States can be made defendants. After enumerating further actions of the State which affect individuals, he thus continues: These evils, and others which might be enumerated like them, cannot be corrected, without a suit against the State. It is not denied, that one State may be sued by another; and the reason would seem to be the same, why an individual, who is aggrieved, should sue the State aggrieving. A distinction between the cases is supportable only on a supposed comparative inferiority of the Plaintiff. But the framers of the Constitution could never have thought thus. They must have viewed human rights in their essence, not in their mere form. They had heard, seen-I will say, felt; that Legislators were not so far sublimed above other men, as to soar beyond the region of passion. Unfledged as America was in the vices of old Governments, she had some incident to her own new situation: individuals had been victims to the oppression of States. Mr. Randolph now reaches a stage in his argument of a more general nature, one of interest to his countrymen then and now, and one of interest to those who reignty of would like to see an international court established for the society of nations, but States. who fear the effect which its creation and a resort to it might have upon the sovereignty of the States creating it. Referring to his contentions, he thus cites in support of them three lines of argument of general interest : These doctrines are moreover justified: 1st. By the relation in which the States stand to the Federal Government and, 2d. By the law of nations, on the subject of suing sovereigns: and, 3d. They are not weakened by any supposed Mr. Randolph to his finger-tips believed in the sovereignty of the States, and he would have been as unwilling to contend in court that they were not sovereign as he was unwilling to admit that they were not so in the Federal Convention in Philadelphia or in the Convention of his State. His views, therefore, on this phase of the subject were of great moment to him as they are of interest now, and his exact language on this point is quoted lest his views and his statement of them be misapprehended: States to I acknowledge, and shall always contend, that the States are sovereignties. Relation But with the free will, arising from absolute independence, they might combine of the in Government for their own happiness. Hence sprang the confederation; under the which indeed, the States retained their exemption from the forensic jurisdiction Union. of each other, and except under a peculiar modification, of the United States themselves. Nor could this be otherwise; since such a jurisdiction was nowhere (according to the language of that instrument) expressly delegated. This Government of supplication cried aloud for its own reform; and the public mind of America decided, that it must perish of itself, and that the Union would be thrown into jeopardy, unless the energy of the general system should be increased. Then it was, the present Constitution produced a new order of things. It derives its origin. immediately from the people; and the people individually are, under certain limitations, subject to the legislative, executive, and judicial authorities thereby established. The States are, in fact, assemblages of these individuals who are liable to process. The limitations, which the Federal Government is admitted to impose upon their powers, are diminutions of sovereignty, at least equal to the making of them defendants. It is not pretended, however, to deduce from these arguments alone, the amenability of States to judicial cognizance; but the result is, that there is nothing in the nature of sovereignties, combined as those of America are, to prevent the words of the Constitution, if they naturally mean, what I have asserted, from receiving an easy and usual construction. In further support of these views, Mr. Randolph takes a concrete case, which is not without interest at the present day, showing the process by which a denial of justice on the part of a State toward a citizen of a foreign State might lead to war and showing, at the same time, that an appeal to a court of law, whether it be of the United States or of the society of nations, would in such a case preserve the peace unbroken : But pursue the idea a step further; and trace one, out of a multitude of In cerexamples, in which the General Government may be convulsed to its centre with- tain cases out this judicial power. If a State shall injure an individual of another State, the only the judicial latter must protect him by a remonstrance. What if this be ineffectual? To stop power there would cancel his allegiance; one State cannot sue another for such a cause; can preaquiescence is not to be believed. The crest of war is next raised; the Federal serve head can not remain unmoved amidst these shocks to the public harmony. Ought peace. then a necessity to be created for drawing out the general force on an occasion so replete with horror? Is not an adjustment by a judicial form far preferable ? Are not peace and concord among the States, two of the great ends of the Constitution? To be consistent, the opponents of my principles must say, that a State may not be sued by a foreigner. What? Shall the tranquillity of our country be at the mercy of every State? Or, if it be allowed, that a State may be sued by a foreigner, why, in the scale of reason, may not the measure be the same, when the citizen of another State is the complainant? After adverting to the classic examples of the Amphictyonic Council and of the Achaean League, and to the Holy Roman Empire as it then existed, in which The ques. tion of execu tion. The possibility of resistance. suits might be and apparently were brought against states, without, however, vouching them as precedents for the present action-he concluded that it would be ' no degradation of sovereignty, in the States, to submit to the Supreme Judiciary of the United States' and, we might say, to the supreme court of the society of nations. Omitting Mr. Randolph's very brief and inadequate reference to the law of nations on this subject, we come to the 'embarrassment attending the mode of executing a decree against a state'. Mr. Randolph admitted that no attempt had been made to define a form of execution against a state. He admitted that a form of execution might be necessary and that, if necessary, it would come into being. His language on this point is interesting, as showing that the subject of judicial execution had not been considered by the delegates of the states that framed and ratified the Constitution. Executions', he said, 'for one State against another, are writs not specially provided for by statute, and are necessary for the exercise of the jurisdiction of the Supreme Court, in a contest between States; and although, in neither the common law, nor any statute, the form of such an execution appears; yet it is agreeable to the principles and usages of law, that there should be a mode of carrying into force a jurisdiction, which is not denied. If, then, the Supreme Court may create a mode of execution, when a State is defeated at law by a State, why may not the same means be exerted, where an individual is successful against a State?' Having thus stated his belief that execution might be necessary, he puts and thus attempts to answer the following question: But what species of execution can be devised? This, though, a difficult task, is not impracticable. And if it were incumbent on me to anticipate the measures of the Court, I would suggest these outlines of conduct. First, that if the judgment be for the specific thing, it may be seized: or, secondly, if for damages, such property may be taken, as, upon the principles, and under the circumstances cited from Bynkershoek, would be the ground-work of jurisdiction over a foreign Prince. Mr. Randolph felt, however, that the subject was very delicate; and he was by no means sure of his remedy. Therefore, he ended with the very sensible comment that However, it is of no consequence, whether the conjectures be accurate or not ; as a correct plan can doubtless be discovered.' As a believer in the sovereignty of the States, he foresaw that these sovereigns of the union might attempt to exercise their sovereignty in opposing even a correct plan, and thus addressed himself to this phase of the subject: Still, we may be pressed with the final question: What if the State is resolved to oppose the execution?' This would be an awful question indeed! He, to whose lot it should fall to solve it, would be impelled to invoke the god of wisdom to illuminate his decision. I will not believe that he would recall the tremendous examples of vengeance, which in past days have been inflicted by those who claim, against those who violate, authority. I will not believe that in the wide and gloomy theatre, over which his eye should roll, he might perchance catch a distant glimpse of the Federal arm uplifted. Scenes like these are too full of horror, not to agitate, not to rack, the imagination. But at last we must settle on this result; there are many duties, precisely defined, which the States must perform. Let the remedy which is to be administered, if these should be disobeyed, be the remedy of the occasion, which we contemplate. The argument requires no more to be said it hope and pray, that not a single star in the American Constellation will ever suffer its lustre to be diminished, by hostility against the sentence of a Court, which itself has adopted. Mr. Randolph felt, however, that the judgement of the court should be rendered, even although the question of execution might be doubtful. He did not invoke the 'decent respect to the opinions of mankind', although, as a statesman of the Revolutionary period, these words doubtless rang in his ears. Thus, he continues: But, after all, although no mode of execution should be invented, why shall not the Court proceed to judgment? It is well known, that the courts of some States have been directed to render judgment, and there stop; and that the Chancery has often tied up the hands of the common law, in like manner. Perhaps, if a Government could be constituted without mingling at all the three orders of power, Courts should, in strict theory, only declare the law of the case, and the subject upon which the execution is to be levied; and should leave their opinions to be enforced by the Executive. But that any State should refuse to conform to a solemn determination of the Supreme Court of the Union, is impossible, until she shall abandon her love of peace, fidelity to compact, and character. On this phase of the subject, which is the only one of present and permanent interest, Combine them into one view, the letter and the spirit of the Constitution; the relation of the several States to the Union of the States; the precedents from other sovereignties; the judicial act; and process act; the power of forming executions; the little previous importance of this power to that of rendering of judgment; the influence under which every State must be to maintain the general harmony; and the inference, will, I trust, be in favor of the first proposition ; namely, that a State may be sued by the citizens of another State. The case was regarded by the Justices as a very important one. They held it under advisement, the official report says, 'from the 5th to the 18th of February, when they delivered their opinions seriatim.' Following the English practice, they began with the judge last appointed and ended with the Chief Justice. In the introduction to his opinion, Mr. Justice Iredell calls attention to the fact, Diswhich cannot be too often mentioned, that the Supreme Court, being a court of limited senting opinion jurisdiction, must determine, before entertaining the case, whether it can properly of Mr. exercise jurisdiction and whether the defendant State concedes or contests jurisdiction. Thus, he says: This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case, it did not, because the Attorney-General of the State voluntarily appeared. We could not, therefore, without the greatest impropriety, have taken up the question suddenly. That case has since been compromised; but had it proceeded to trial, and a verdict been given for the Plaintiff, it would have been our duty, previous to our giving judgment, to have well considered whether we were warranted in giving it. I had then great doubts upon my mind, and should on such a case, have proposed a discussion of the subject. Those doubts have increased since, and after the fullest consideration, I have been able to bestow on the subject, and the most respectful attention to the able argument of the Attorney-General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained.1 1 Chisholm v. State of Georgia (2 Dallas, 419, 429-30). Iredell against the plain tiff's claim. |