in the State of New York, president of the Congress under the Confederation, and negotiator and signer of the treaty with Great Britain recognizing the independence of the United States; secretary of state for foreign affairs thereafter until the Constitution, which he defended with Hamilton and Madison in the Federalist, went into effect; acting secretary of state until the return of Mr. Jefferson from France to assume that post; Chief Justice of the United States from its creation until his resignation in 1794; negotiator of the treaty, which bears and perpetuates his name with Great Britain, by virtue of which war was prevented between the two countries and arbitration again introduced into the practice of nations. It is no wonder that he possessed the confidence of Washington; it is no wonder that Washington laid at his disposal practically every post under the new government; it is no wonder that he became Chief Justice of the United States. But to the opinion of this first Chief Justice of the Supreme Court of the United States. Mr. Chief Justice Jay, in the opening words of his opinion, says that: The question we are now to decide has been accurately stated, viz. Is a State suable by individual citizens of another State? 1 In order to determine this question, the Chief Justice proposed, in the very next sentence, to pursue a threefold inquiry: ment. It is said, that Georgia refuses to appear and answer to the Plaintiff in this Analysis action, because she is a sovereign State, and therefore not liable to such actions. of his In order to ascertain the merits of this objection, let us enquire, ist. In what argusense, Georgia is a sovereign State. 2d. Whether suability is compatible with such sovereignty. 3d. Whether the constitution (to which Georgia is a party) authorizes such an action against her.2 The Chief Justice then takes up, and in the order stated, each object of the threefold inquiry, and it is necessary to present his views with considerable fullness, because, if his premises are admitted, the conclusion he draws from them is inevitable, that Georgia was not a sovereign State in the sense of the law of nations; that it, therefore, could be sued, even although a sovereign State could not be; and that, in any event, the wording of the Constitution expressly authorized such a suit. It may be said at the outset, and without involving the slightest criticism of the Chief Justice or of his motives-for, as Webster has truly and impressively said, when the judicial ermine touched Jay it touched something as pure as itself—that he approached the question from the standpoint of the revolutionary statesman, impressed with the union of the colonies, the necessity for their union to obtain their independence from Great Britain and to maintain it when thus obtained against the world. But it may also be added that he had interpreted the Constitution as Secretary of State of the Confederation, seeing the need of a court to preserve uniformity in the interpretation of the laws and in the administration of justice; that as a publicist, interested in the maintenance of peace at home and abroad-he began the study of law by mastering the immortal text of Grotius, and, on graduation from King's College, now Columbia University, he delivered his first public address on the blessings of peace-he instinctively felt that disputes between the States of the American Union could be, and that the disputes of the Nations forming the society of nations should be, decided, in so far as they were justiciable, by a court • Ibid. (2 Dallas, 419, 469). 1 Chisholm v. State of Georgia (2 Dallas, 419, 469). Is Geor gia a sove reign' State ? The times. Sove at the Revolu tion passed to the of the United States, on the one hand, and of the society of nations, on the other. An amendment to the Constitution might deprive the Supreme Court of the jurisdiction which Mr. Chief Justice Jay believed it possessed, but no amendment could deprive the views he held and expressed on these subjects of their reasonableness, of their wisdom, and of their beneficent effect upon the Nations if one day they may open their minds and their hearts to the appeal to reason. First. In what sense is Georgia a sovereign state? The reasoning of the Chief Justice upon this point is historical, and is only to be considered as legal in so far as the historical narrative in which he indulges fixes the status of Georgia as one of the colonies, whose peoples were subject to the common sovereign, and therefore fellow-citizens, rather than citizens of the colonies and citizens of the States which succeeded them. Mr. Chief Justice Jay first considers the status of the colonists before the Revolution, and, without specific mention of Georgia, it is of course included. Thus : All the country now possessed 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 subjects of the King of Great Britain, and owed allegiance to him; and all the civil authority then existing, or exercised here, flowed from the head of the British Empire. They were in strict sense fellowsubjects, and in a variety of respects one people. When the Revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies, which subsisted between the people of Gaul, Britain and Spain, while Roman Provinces, viz. only that affinity and social connection which result from the mere circumstance of being governed by the same Prince; different ideas prevailed, and gave occasion to the Congress of 1774 and 1775.1 The Chief Justice next describes the stirring events of the Revolution and its effect upon the erstwhile colonies: The Revolution, or rather the Declaration of Independence, found the people reignty already united for general purposes, and at the same time providing for their more domestic concerns by State conventions, and other temporary arrangements. From the crown of Great Britain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion, that the unappropriated lands, which belonged to that crown, passed not to the people of the colony or people as States within whose limits they were situated, but to the whole people; on a whole. whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the Revolution, combined with local convenience and considerations; the people, nevertheless, continued to consider themselves, 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 basis of a general Government. Experience disappointed the expectations they had formed from it; and then the people, in their collective and national capacity, established the present constitution.2 The Chief Justice, true to his conception that there were thirteen States but one people, insists in the following passage that it was the people, not the States, which formed the Constitution-for this contention is necessary to support his opinion that the United States formed a nation instead of a union. Thus : the Con It is remarkable, that in establishing it, the people exercised their own rights, The and their own proper sovereignty, and conscious of the plenitude of it, they declared people with becoming dignity, We, the people of the United States, do ordain and establish this Constitution.' Here we see the people acting as sovereigns of the whole country; stitution. and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments, should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States, to govern themselves as to general objects, in a certain manner.1 'The sovereignty of the nation' being, in the opinion of the Chief Justice, vested in the people, he then proceeds to consider, as Mr. Justice Wilson had done, the difference between the feudal conception of the State obtaining in Europe and the contractual conception of the State obtaining in the United States. First, as to the sovereignties of Europe, and second, as to the States of the Union. On the first point the Chief Justice says: jurisdic It will be sufficient to observe briefly, that the sovereignties in Europe, and The particularly in England, exist on feudal principles. That system considers the feudal Prince as the sovereign, and the people as his subjects; it regards his person as the theory of object of allegiance, and excludes the idea of his being on an equal footing with tion. a subject, either in a Court of Justice or elsewhere. That system contemplates him as being the fountain of honor and authority; and from his grace and grant, derives all franchises, immunities and privileges; it is easy to perceive, that such a sovereign could not be amenable to a Court of Justice, or subjected to judicial control and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the Prince having all the Executive powers, the judgment of the Courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the Prince and the subject.2 Second, as to the States of the Union : are sove No such ideas obtain here; at the Revolution, the sovereignty devolved on The the people; and they are truly the sovereigns of the country, but they are sovereigns American without subjects... and have none to govern but themselves; the citizens of America People are equal as fellow-citizens, and as joint-tenants in the sovereignty.3 From these observations, the Chief Justice draws the following conclusion, with subjects. which he ends the first of the three headings under which he considers the question: From the differences existing between feudal sovereignties and Governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe, the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. Their Princes 1 Chisholm v. State of Georgia (2 Dallas, 419, 471). 2 Ibid. (2 Dallas, 419, 471). Ibid. (2 Dallas, 419, 471-2). reigns without Question of the right of suit. have personal powers, dignities and pre-eminences, our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.1 Second. The compatibility of suit with state sovereignty. Given the view of the Chief Justice, that the Convention of 1787 made a nation, not a union of States; that the Constitution was ratified by the people of the different States and that these peoples together form the people of the United States, dwelling within and being citizens of the former colonies and separated merely for geographical reasons; that States were merely political units within which the people exercised their rights, and that they were merely agents of these peoples-it was easy for him to reach the conclusion that the agents could be sued when the parts, that is to say, the individuals composing them, could themselves be. For, looking through form to The suit substance, the suit was in fact, if not in theory, a suit against individuals, who might is in fact change, living within boundaries—which in this matter were merely lines of conagainst a number venience, not the frontiers of sovereign states. If a citizen of South Carolina could of indivi- sue a citizen of Georgia two citizens of South Carolina could be joined as plaintiffs, duals. and if two citizens of Georgia could be joined as defendants, three could, four could, all could; for, from this point of view, it was merely a question of mathematics. Indeed, sovereignty was not involved, for even if the State could, for purposes of argument, be considered sovereign, the individual was not, in the sense of public law; and, as it was a suit against an individual or aggregation of individuals more or less artificially grouped, the State was not involved except as to indicate in broad and general terms the locality within which these people live, move, and have their being. The State was a province, it was an inferior body politic and as suable as any other. The Chief Justice begins this section of his opinion-one almost might say argument, for he is unconsciously maintaining a thesis, as his brother Wilson consciously maintained one-by asking: Analogy of suits against city cor porations. Suability, by whom? Not a subject, for in this country there are none; not an inferior, for all the citizens being as to civil rights perfectly equal, there is not in that respect, one citizen inferior to another.2 The Chief Justice then proceeds to state a series of premises, from which certain conclusions inevitably flow: It is agreed, that one free citizen may sue any number on whom process can be conveniently executed; nay, in certain cases, one citizen may sue forty thousand; for where a corporation is sued, all the members of it are actually sued, though not personally sued. He then takes an example which, as is seen, is based upon the theory of inferior corporations : In this city [meaning Philadelphia, which was then the capital of the country and the seat of the court], there are forty odd thousand free citizens, all of whom may be collectively sued by any individual citizen. In the State of Delaware, there are fifty odd thousand free citizens, and what reason can be assigned why a free citizen who has demands against them should not prosecute them? Can the difference between forty odd thousand, and fifty odd thousand make any distinction as to right? Is it not as easy, and as convenient to the public and parties, to serve a summons on the Governor and Attorney General of Delaware, as on the Mayor or other Officers of the Corporation of Philadelphia? Will it be said, that the fifty odd thousand citizens in Delaware being associated under a State Government, stand in a rank so superior to the forty odd thousand of Philadelphia, associated under their charter, that although it may become the latter to meet an individual on an equal footing in a Court of Justice, yet that such a procedure would not comport with the dignity of the former ?-In this land of equal liberty, shall forty odd thousand in one place be compellable to do justice, and yet fifty odd thousand in another place, be privileged to do justice only as they may think proper? Such objections would not correspond with the equal rights we claim; with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes. Grant that the Governor of Delaware holds an office of superior rank to the Mayor of Philadelphia, they are both nevertheless the officers of the people; and however more exalted the one may be than the other, yet in the opinion of those who dislike aristocracy, that circumstance cannot be a good reason for impeding the course of justice.1 So much for mathematics; next, as to the suability of the State as such. In this part of the argument, with which he concludes the second heading in which he grouped his observations, the Chief Justice proceeds by the favourite method of question and answer: If there be any such incompatibility as is pretended, whence does it arise? In what does it consist? And to this question he answers: sove There is at least one strong undeniable fact against this incompatibility, and Suability that is this, any one State in the Union may sue another State, in this Court, that and State is, all the people of one State may sue all the people of another State. It is plain reignty then, that a State may be sued, and hence it plainly follows, that suability and State are not sovereignty are not incompatible. As one State may sue another State in this Court, incompait is plain that no degradation to a State is thought to accompany her appearance in this Court.2 The Chief Justice draws the conclusion, which as so often happens with him is to be the next step in the argument, and upon which, proceeding by question and answer, he bases a further question : It is not, therefore, to an appearance in this court, that the objection points. To what does it point? To this question he replies: It points to an appearance at the suit of one or more citizens. But why it should be more incompatible, that all the people of a State should be sued by one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike; and the consequences of a judgment alike. Nor can I observe any greater inconveniences in the one case than in the other, except what may arise from the feelings of those who may regard a lesser number in an inferior light. But if any reliance be made on this inferiority as an objection, at least one half of its force is done away by this fact, viz. that it is conceded that a State may appear in this Court, as Plaintiff, against a single citizen as Defendant; and the truth is, that the State of Georgia is at this moment prosecuting an action in this Court against two citizens of South Carolina.3 1 Chisholm v. State of Georgia (2 Dallas, 419, 472-3). 2 Ibid. (2 Dallas, 419, 473). Ibid. (2 Dallas, 419, 473). The case to which the Chief Justice referred is State of Georgia v. Brailsford et al. (1 Dallas, 402). tible. |