to do remotest manner, that a State, any more than the men who compose it, ought not Obligato do justice and fulfil engagements? It will not be pretended, that there is. If tion of justice is not done; if engagements are not fulfilled; is it, upon general principles a State of right, less proper, in the case of a great number, than in the case of an individual, justice. to secure, by compulsion, that which will not be voluntarily performed? Less proper, it surely cannot be. The only reason, I believe, why a free man is bound by human laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorized by those laws. If one free man, an original sovereign, may do all this, why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each, singly, is undiminished; the dignity of all jointly, must be unimpaired. A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, wilfully refuses to discharge it The latter is amenable to a Court of Justice: Upon general principles of right, shall the former, when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice, by declaring I am a SOVEREIGN State? Surely not.1 This brings him to consider the nature of sovereignty, in connexion with which he remarks that the admission of a sovereign involves at the same time the existence of a subject, that the word 'subject' is unknown to the Constitution except in relation to foreigners, that the relation of sovereign and subject, therefore, does not exist in Georgia the United States and that the state of Georgia, for example, composed of citizens, is not a cannot be a sovereign because it has no subjects. Mr. Justice Wilson next proceeds reign to consider a second sense in which the term 'sovereign state' is used. Thus : In another case, according to some writers, every State, which governs itself, without any dependence on another power, is a sovereign State.2 Mr. Justice Wilson vouches for the statement the authority of Vattel. From what has already been said, it would be expected that the learned Justice denies to Georgia the character of a sovereign State, because the people thereof were sovereign, not the State; and believing, as he did, that the people of the United States formed a nation, not a union of States, it would be surprising if, in his opinion, the people of a section should be regarded as equal to the people of other sections. As a Judge of this Court', he said, ' I know, and can decide, upon the knowledge, that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the " People of the United States", did not surrender the Supreme or Sovereign Power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is NOT a sovereign State. If the judicial decision of this case forms one of those purposes; the allegation that Georgia is a sovereign State, is unsupported by the fact.' 3 There is, however, according to Mr. Justice Wilson, a third sense in which the term 'sovereign' is used, and it seemed to be material to his argument to define this sense and to give the reason for it, in order to show that Georgia could not be a sovereign State, and therefore was not immune from suit at the instance of an individual, even although a State, properly sovereign, might be. Thus : There is a third sense, in which the term sovereign is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what, I 1 Chisholm v. State of Georgia (2 Dallas, 419, 456). Ibid. (2 Dallas, 419, 457). Ibid. (2 Dallas, 419, 457). " sove State. The feudal presume to be one of the principal objections against the jurisdiction of this Court over the State of Georgia. In this sense, sovereignty is derived from a feudal source; and like many other parts of that system, so degrading to man, still retains its influence over our sentiments and conduct, though the cause, by which that influence was produced, never extended to the American States.1 The learned Justice here enters upon a sketch of feudalism, by virtue of which the theory of land belonged to the lord, the kingdom was a fief, and the peoples were subject to the jurisdic- land-owner, just as the land-owners themselves were subject to their feudal superior, tion. who in turn was subject to the king. But, in the case of the King,' he says, ' the sovereignty had a double operation. While it vested him with jurisdiction over others, it excluded all others from jurisdiction over him. With regard to him, there was no superior power; and consequently, on feudal principles, no right of jurisdiction'. He quotes Blackstone as saying that 'The law ascribes to the King, the attribute of sovereignty: he is sovereign and independent, within his own dominions; and owes no kind of subjection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the King, even in civil matters; because no Court can have jurisdiction over him: for all jurisdiction implies superiority of power'. The principle to be derived from this, Mr. Justice Wilson says, is that all human law must be prescribed by a superior'. This principle he rejects, and insists that another principle, very different in its nature and operations, forms, in publican my judgment, the basis of sound and genuine jurisprudence; laws derived from the theory. pure source of equality and justice must be founded on the CONSENT of those whose obedience they require. The sovereign, when traced to his source, must be found in the man'.4 The re Mr. Justice Wilson now passes to a consideration of the second phase of the subject, namely, the laws and practice of different states and kingdoms; and, imbued with the classics, he refers to an example no doubt pleasing to his contemporaries, who apparently had more leisure than their successors for the amenities of life. Thus, he says: In ancient Greece, as we learn from Isocrates, whole nations defended their rights before crowded tribunals. Such occasions as these excited, we are told, all the powers of persuasion. . . 5 He justifies a resort to the laws and practices of particular States on the ground that they will furnish 'what is called an argument a fortiori; because all the instances produced will be instances of subjects instituting and supporting suits against those, who were deemed their own sovereigns'. 'These instances are stronger', he says, 'than the present one, because between the present plaintiff and defendant, no such unequal relation is alleged to exist.' 6 The first instance to which he refers seems peculiarly appropriate to an American, as we would like to think that not only freedom and democracy but justice found in the western world congenial soil to bring forth their perfected fruits. This instance is for obvious reasons stated in Mr. Justice Wilson's own words: Columbus achieved the discovery of that country, which, perhaps, ought to bear his name. A contract made by Columbus furnished the first precedent for 1 Chisholm v. State of Georgia (2 Dallas, 419, 457). 3 Ibid. (2 Dallas, 419, 458). 2 Ibid. (2 Dallas, 419, 458). Ibid. (2 Dallas, 419, 459). and the supporting, in his discovered country, the cause of injured merit against the claims The case and pretensions of haughty and ungrateful power. His son Don Diego wasted two of Don years in incessant, but fruitless, solicitation at the Court of Spain, for the rights Diego which descended to him, in consequence of his father's original capitulation. He King of endeavoured, at length, to obtain, by a legal sentence, what he could not procure Spain. from the favour of an interested Monarch. He commenced a suit against Ferdinand, before the Council which managed Indian affairs; and that Court, with integrity which reflects honor on its proceedings, decided against the King, and sustained Don Diego's claim.1 Coming to the question of England-for it is the principles and usages of that country which, with or without statute, control—and without going into details he states in general terms the results of his examination of English precedents: In England, according to Sir William Blackstone, no suit can be brought against the King, even in civil matters. So, in that Kingdom, is the law, at this time received.2 Mr. Justice Wilson contended, however, that it was not always so; but, after citing earlier practice, he is obliged to state : True it is, that now in England, the King must be sued in his Courts, by Petition.3 So far, he agrees with Mr. Justice Iredell. He differs, however, in regard to a petition as a matter of form, and asserts that in fact the result is the same as if action were brought instead of a petition filed against the king. But even now', he says, 'the difference is only in the form, not in the thing. The judgments or decrees of those Courts will substantially be the same upon a precatory as upon a mandatory process'. English practice, even as stated by Mr. Justice Wilson, does not, at least directly, sustain his contention, and he turns with greater pleasure, if not profit, to an incident peculiarly pleasant to recall at this day and under present conditions, quoting the language of and commenting upon an incident which has not yet lost its hold upon the imagination : 'Judges ought to know, that the poorest peasant is a man, as well as the King himself all men ought to obtain justice, since, in the estimation of justice, all men are equal, whether the Prince complain of a peasant, or a peasant complain of the Prince.' These are the words of a King, of the late Frederic of Prussia. In his Courts of Justice, that great man stood upon his native greatness, and disdained to mount upon the artificial stilts of sovereignty.5 With these noble words and with this eulogium upon the monarch, Mr. Justice Wilson closes the second phase of his argument, and comes to what was in fact the real question, and to which the first two disquisitions on sovereignty were in reality an elaborate introduction. 'I am, he says, ' thirdly, and chiefly, to examine the important question now before us, by the Constitution of the United States, and the legitimate result of that valuable instrument. Under this view, the question is naturally sub-divided into two others. I. Could the Constitution of the United States vest a jurisdiction over the State of Georgia? 2. Has that Constitution vested such jurisdiction in this Court? 1 Chisholm v. State of Georgia (2 Dallas, 419, 459). 2 Ibid. (2 Dallas, 419, 460). Ibid. (2 Dallas, 419, 460). Ibid. (2 Dallas, 419, 460). claims of against their I have already remarked, that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things; and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation which Excessive has been denominated free, the State has assumed a supercilious pre-eminence above States the people, who have formed it: Hence, the haughty notions of state independence, state sovereignty, and state supremacy. In despotic Governments, the Government has usurped, in a similar manner, both upon the state and the people: Hence, all arbitrary doctrines and pretensions concerning the Supreme, absolute, and uncontrollable, power of Government. In each, man is degraded from the prime rank, which he ought to hold in human affairs: In the latter, the state as well as the man is degraded'. After citing degradations occurring 'in history, in politics, and in common life', in which Louis XIV is flayed and the England of his day not spared, he thus speaks of his adopted country-for he was a Scotchman by birth: peoples. The Con from In the United States, and in the several States which compose the Union, we go not so far: but still, we go one step farther than we ought to go, in this unnatural and inverted order of things. The States, rather than the PEOPLE, for whose sakes the States exist, are frequently the objects which attract and arrest our principal attention.2 Omitting the passage from his opinion in which he insists that, even in the language of daily life, we speak of the United States instead of the people of the United States, he says: Our national scene opens with the most magnificent object, which the nation stitution could present: The PEOPLE of the United States' are the first personages introis derived duced. Who were those people? They were the citizens of thirteen States, each of which had a separate Constitution and Government, and all of which were connected together by articles of confederation. To the purposes of public strength and felicity, that confederacy was totally inadequate. A requisition on the several States terminated its Legislative authority: Executive or Judicial authority it had none. In order, therefore, to form a more perfect union, to establish justice, to insure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present Constitution. By that Constitution, Legislative power is vested, Executive power is vested, Judicial power is vested.3 The The learned Justice, thoroughly at home in this phase of the subject, proceeds to ask, if the people of the States could bind the States, including the State of Georgia, and the answer to this question, given in his own language, could hardly be doubtful. Thus he says: The question now opens fairly to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia, among the others, by the Legislative, Executive, and Judicial power so vested? If the States can principles on which I have founded myself, are just and true; this question must bind the unavoidably receive an affirmative answer. If those States were the work of those State of people; those people, and, that I may apply the case closely, the people of Georgia, Georgia. in particular, could alter, as they pleased, their former work: To any given degree, they could diminish as well as enlarge it. Any or all of the former State-powers, 1 Chisholm v. State of Georgia (2 Dallas, 419, 461). they could extinguish or transfer. The inference, which necessarily results, is, that the Constitution ordained and established by those people; and, still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States, and over the state of Georgia in particular.1 The learned Justice, proceeding logically, and speaking as a judge rather than as a statesman, puts and answers the pertinent question, whether the Constitution has done so. Thus : The next question under this head, is, Has the Constitution done so? Did those people mean to exercise this, their undoubted power? These questions may be resolved, either by fair and conclusive deductions, or by direct and explicit declarations. In order, ultimately, to discover, whether the people of the United States intended to bind those States by the Judicial power vested by the national Constitution, a previous enquiry will naturally be: Did those people intend to bind those States by the Legislative power vested by that Constitution? The articles of confederation, it is well known, did not operate upon individual citizens; but operated only upon States. This defect was remedied by the national Constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just; the defect remedied, on one side, was balanced by a defect introduced on the other: For they seem to think, that the present Constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be subject to the revision and controul of the Congress ; it cannot, surely, be contended, that the Legislative power of the national Government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances, to which the facts will be found to apply. We may then infer, that the people of the United States intended to bind the several States, by the Legislative power of the national government.2 Pursuing further the same subject, and by his favourite method of question and answer, Mr. Justice Wilson continues : are en In order to make the discovery, at which we ultimately aim, a second previous Legislaenquiry will naturally be-Did the people of the United States intend to bind tive acts the several States, by the Executive power of the national Government? The forced by affirmative answer to the former question directs, unavoidably, an affirmative the Exeanswer to this. Ever since the time of Bracton, his maxim, I believe, has been cutive deemed a good one- Supervacuum esset, leges condere, nisi esset qui leges tueretur.' and interpreted by 'It would be superfluous to make laws, unless those laws, when made, were to the be enforced.' When the laws are plain, and the application of them is uncontro- Courts. verted, they are enforced immediately by the Executive authority of Government. When the application of them is doubtful or intricate, the interposition of the judicial authority becomes necessary. The same principle, therefore, which directed us from the first to the second step, will direct us from the second to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United States did vest this Court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects, and the general texture of the Constitution of the United States. One of its declared objects is, to form an union more perfect, than, before that time, had been formed. Before that time, the Union possessed Legislative, but unenforced Legislative power over the States. Nothing could be more natural than to intend that this Legislative power should be enforced by powers Executive and Judicial.3 1 Chisholm v. State of Georgia (2 Dallas, 419, 463-4). 2 Ibid. (2 Dallas, 419, 464). 3 Ibid. (2 Dallas, 419, 464-5). |