gerent captor before it, conditioned the exercise of this right upon the consent of the individual State, recognizing that an appeal in certain instances might not be in the interests of the State whereof he was a subject or citizen, and that, while the appeal might satisfy his claim, it might prejudice the interests of the State, of which it, not the individual, should be the judge. of the Court in favour of the plaintiff over ruled by the 11th By a vote of four to one the jurisdiction was sustained by the justices of the Decision Supreme Court of a suit by an individual of one State against another State of the American Union. On March 5, 1794, an amendment was addressed to the legislatures of the States of the Union by the Third Congress, and on January 8, 1798, it was declared by the President in a message to Congress to have been ratified by threefourths of the States, in accordance with the provisions of the Constitution. So Amendthat, within little more than a twelvemonth an amendment was proposed, and within ment less than five years the exercise of jurisdiction in such a case was proclaimed with- (1798). drawn from the Supreme Court. It would perhaps be more accurate to say that the amendment, instead of withdrawing jurisdiction, which would have admitted its prior existence, declared that the judicial power of the United States should not be construed to extend to a suit in law or equity begun by a citizen of one of the States of the Union or by a citizen or subject of any foreign State against the United States. the con It is advisable, in view of these circumstances, to pause and to ascertain Importhe reason of this action on the part of the States; for, if their action is not to be tance of considered as precipitate, it nevertheless was prompt, decided, unmistakable, and troversy. to the point. It was a lesson to the Supreme Court; it was a guarantee to the States and to their citizens that jurisdiction could not be exercised in derogation of the rights of the States unless the grant of power were clear, and it was a warning to the Supreme Court, which has been 'heeded, that jurisdiction should not be assumed against a State by implication. The debt in the case of Chisholm v. Georgia, to recover which suit was brought against the State, was trifling in amount. The question of jurisdiction, however, was of fundamental importance. It questioned the existence of the States and their position within the Union. In this sense it was constitutional. If the States were sovereign before the Constitution, as they expressly declared themselves to be in the second of the Articles of Confederation, it was of international importance. If the decision of the Supreme Court in this case was correct, a union of nations might menace the sovereignty by virtue of which they form the Union, and a casual expression in the agreement of union, which would pass unnoticed or unchallenged if applied to an individual, might deprive the State of its prestige, even of its power, and summon it before the creature of its hands as a province shorn of its statehood. If the opinion of the majority had prevailed, the Supreme Court would not have been the model for an international tribunal, although it might have been the model for a national tribunal. The amendment shows that the people of that day regarded their States as more than inferior bodies politic, that they were sovereign and to be considered as sovereign in the reserved powers, and that they were only deprived of the rights which they expressly granted to their agent, the general government, or which followed by necessary implication, or the exercise of which they specifically, or by necessary implication, renounced. If the opinion of the majority had prevailed, the United States would have been a nation with a single sovereignty. There would Rele vance of the de inter national controversies. not have been a separation of sovereign powers, some lodged with the agent to be exercised for the benefit of the United States and others reserved to the States for their individual benefit, each, as the great Chief Justice Marshall has said, being sovereign within its appropriate sphere, and neither so within the sphere of the other. The Supreme Court would not have been the prototype of an international court of justice, or it would not have been the prototype to the same extent; for we cision to would be dealing with States stripped of their sovereignty, whereas, because of the amendment, passed immediately to correct this exercise of jurisdiction on the part of the Supreme Court, we are dealing with States in the possession of their sovereignty, except, in so far as to them seemed good and sufficient, they divested themselves of it to their agent. The Society of Nations can, as did the States of the American Union, create an agent invested with certain powers, reserving to themselves all others; and if this agent should, by construction, extend its powers, the action of the States of the American Union in this very matter shows that, by an amendment of the convention creating the judicial union and defining and enumerating the powers of its court of justice, an excess of zeal in the matter of justice may be easily and peaceably corrected. Policy of at the Philadelphia Conven tion. It is difficult to see how the justices, especially Messrs. Blair and Wilson, who the States had been members of the Philadelphia Convention, could have persuaded themselves that that conference of States claiming to be sovereign and exercising sovereign powers could have really meant to deprive themselves of a right possessed by any and every sovereign State, or that the conference actually did so. The case is not so strong with Justice Cushing, who was not a member of that assembly and who had passed many years of an uneventful life in the atmosphere of the court-room-for he was appointed, within a year after the Declaration of Independence, Chief Justice of the Superior Court of Massachusetts, from which he was raised to the Supreme Court of the United States. It is strange that Chief Justice Jay, although not a member of the Philadelphia assembly, could have persuaded himself that the States had grown virtuous' overnight, inasmuch as his experience with them as Secretary of State must have shown the obstinacy with which they clung to the views dictated by their interests and their unwillingness to renounce a right in the interest of the Confederation. It is not too much to say that, if Madison's Notes of Debates of the Federal Convention had then been published, it would have been impossible for any fair-minded reader to have mistaken the temper of the States in this connexion and to have applied to them the ordinary canon of construction; because, as a later justice of the Supreme Court has said, States have a temper of their own. Even a casual reading of Madison's Notes shows that the States were as flint against the surrender of their powers. They appointed, as is the case with sovereign states, as many delegates as they chose to send. They voted as States. They refused to be amalgamated. They refused to have territory carved out of their midst, without their consent, and erected into new States; and the very phrase to which reference was made-particularly by Justice Wilson and the Chief Justice- We, the people of the United States,' was not used by the delegates of the States in the sense in which it was pressed into the decision of the case. We the people of the United States did not mean the American people; it meant we the people of the States of New Hampshire, Massachusetts', &c. In the draft of the Constitution prepared by the was so stated; and the preamble, put to a vote, was unanimously approved, without debate, and was changed by the committee on style, to which the Constitution as approved by its members was submitted for literary revision. And this particular clause of the preamble, we the people of the United States of New Hampshire,' &c. was framed in the fear and in the belief, which was justified, that the thirteen states forming the Confederacy would not immediately ratify that instrument, that the document if not so modified would begin with a lie, as Rhode Island and North Carolina, in the plenitude of their own sovereignty refused to ratify the Constitution, and only came into the Union after the Constitution had gone into effect, the Union had been formed, and they themselves preferred the advantages of association to the splendours of isolation. Then too, the Constitution was not submitted to the The ConAmerican people for their consideration. It was submitted to the States and ratified by the people of the States. On this point, it is only necessary to call attention to fied by the first sentence of the 7th article, providing that 'the Ratification of the Conventions of nine States shall be sufficient for the establishment of this Constitution between the ately. States so ratifying the same'. Although the language of the Constitution is clearly sufficient, nevertheless the authority of the great Chief Justice Marshall can be Remarks vouched, who said, for a unanimous Court in McCulloch v. Maryland (4 Wheaton, 316, 403) decided by the Supreme Court in 1819: This mode of proceeding was adopted; and by the Convention, by Congress, and by the State Legislatures, the instrument was submitted to the people. They acted upon it in the only manner in which they can act safely, effectively and wisely, on such a subject, by assembling in Convention. It is true, they assembled in their several States-and where else should they have assembled? No political dreamer was ever wild enough to think of breaking down the lines which separate the States, and of compounding the American people into one common mass. Of consequence, when they act, they act in their States. stitution was rati the States separ of Chief Justice Marshall (1819). of the Mr. Justice Iredell knew the difference between a State and a mass of people, Temper for the Convention of the State of North Carolina, of which he was a member, refused States to ratify the Constitution, notwithstanding his earnest and urgent appeal. Chief upon this Justice Jay should have known the temper of the States, because his own State of question. New York was opposed to the Constitution, and it was only after a long and bitterly contested fight that the cause of union was carried by three votes. Alexander Hamilton, as a member of the Convention of his State, was no believer in the States, and would gladly have seen them blotted out of existence and a nation rise upon their ruins; yet he knew that they would not stand a suit. James Madison, by general consent revered as the father of the Constitution, knew the temper of the States, and as a member of the Convention of his State, disclaimed the right of a citizen of · a State to sue another State of the Union. John Marshall, whom a grateful posterity calls the great Chief Justice, likewise a member of his State Convention, knew that the State could not be sued by a citizen of another State even in the Supreme Court of the United States. Nay more, each knew it and stated it at the time. In a series of articles in the press collected under the title of The Federalist, Hamilwritten not merely to expound the Constitution but to secure its adoption, Hamilton ton's said on the very point involved in the case of Chisholm v. Georgia: arguments in The It has been suggested that an assignment of the public securities of one State Federalist to the citizens of another would enable them to prosecute that State in the federal (1788). Madison's opinion. Marshall's opinion. courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article. of taxation and need not be repeated here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the State governments would by the adoption of that plan be divested of the privilege of paying their own debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident it could not be done without waging war against the contracting State; and to ascribe to the federal courts by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence would be altogether forced and unwarrantable.1 In speaking of the Supreme Court, James Madison said in the Virginia Convention : Its jurisdiction in controversies between a state and citizens of another state is much objected to, and perhaps without reason. It is not in the power of individuals to call any state into court. The only operation it can have, is that, if a state should wish to bring a suit against a citizen, it must be brought before the federal court. This will give satisfaction to individuals, as it will prevent citizens, on whom a state may have a claim, being dissatisfied with the state courts. . . . It appears to me that this can have no operation but this to give a citizen a right to be heard in the federal courts; and if a state should condescend to be a party, this court may take cognizance of it.2 And on this very point, John Marshall, speaking with the warmth of the advocate rather than with the calm and poise of the judge, contended : With respect to disputes between a state and the citizens of another state, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a state will be called at the bar of the federal court. Is there no such case at present? Are there not many cases in which the legislature of Virginia is a party, and yet the state is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is, to enable states to recover claims of individuals residing in other states. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a state cannot be defendant-if an individual cannot proceed to obtain judgment against a state, though he may be sued by a state. It is necessary to be so, and cannot be avoided. I see a difficulty in making a state defendant, which does not prevent its being plaintiff.3 1 Paul Leicester Ford, The Federalist, A Commentary on the Constitution of the United States by Alexander Hamilton, James Madison, and John Jay, 1898, No. 81, pp. 545-6. 2 Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787 (2d. ed., 1836, reprint of 1891), vol. iii, p. 533. As Chief Justice of the Supreme Court, Marshall adverted to this question, and, in the maturity of his powers and acting under a sense of judicial responsibility, restated these views in the classic case of Cohens v. Virginia (6 Wheaton, 264, 406), decided in 1821 : It is a part of our history, that, at the adoption of the constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal Courts, formed a very serious objection to that instrument. Suits were instituted; and the Court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign State. The jurisdiction of the Court still extends to these cases: and in these, a State may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States. In the American system of government there is a three-fold division of powers and of functions, and while each division acts for itself and is supreme within its appropriate sphere, they are kept in check by one another, and the lines of demarcation as laid down by the Constitution maintained by the Supreme Court of the United States. The Congress legislates, that is to say, it makes the law; the President, as the chief of the executive branch, executes the law. But as the meaning of the law is not always clear, and should be made so before resort is had to execution, the Judiciary steps in at the instance of a party in interest and declares that law, which the legislature has made and which the President is to execute, which it neither makes nor executes. And hitherto, at least, it has not been found necessary to enforce a No State judgement of the Supreme Court against a State. Public opinion, based upon a decent respect to the opinions of mankind', has been found sufficient. has hitherto resisted the judgement of the Su preme Court. Possibi inter national action on The common law of England is declared by the Supreme Court to be the common law, in civil matters, of the United States. An international conference, such as The Hague, can recognize the common law of nations, as did the conference, limited to the western world, in 1787, without stopping to define it; and the international lity of conference at The Hague can legislate, that is to say, can recommend to the States, rules of law which, when adopted and ratified by the States, have for each one so doing and for the society of nations the force and effect of law. The court of the society of nations, whether it be called an international court of justice or a judicial organ of the society, can, as does the Supreme Court of the United States, declare the true meaning and intent of the common law of nations as well as of the statute or conventional law; and that public opinion tried but not found wanting in the similar lines. |