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Chisholm, Executor, v. Georgia. 2 D.

Service of process on the Governor, and Attorney-General of a State, is sufficient service on the State.

This action was instituted in August term, 1792. On the 11th of July, 1792, the marshal for the District of Georgia made the following return : “ Executed as within commanded, that is to say, served a copy thereof on his Excellency Edward Telfair, Esq., Governor of the State of Georgia, and one other copy on Thomas P. Carnes, Esq., the Attorney-General of said State.

“ ROBERT FORSYTH, Marshal.”

Upon which Mr. Randolph, the Attorney-General of the United States, as counsel for the plaintiff, made the following motion on the 11th of August, 1792. “ 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 show cause to the contrary, judgment shall be entered against the said State, and a writ of inquiry of damages shall be awarded.” But, 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. And now Ingersoll and Dallas, 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.

The case was argued by the Attorney-General, for the plaintiff, and held under advisement by the Court from the 5th to the 18th of February, when they delieverd their opinions seriatim.

IREDELL, J. This great cause comes before the Court, on a motion made by the Attorney-General, that an order be made by this Court to the following effect:— “ That, unless the State of Georgia shall, after reasonable notice of this motion, cause an appearance to be entered on behalf of the said State, on the fourth day of next term, or show cause to the contrary, judgment shall be entered for the plaintiff, and a writ of inquiry shall be awarded.” Before such an order be made, it is proper that this Court should be satisfied it hath cognizance of the suit; for to be sure we ought not to enter a conditional judgment, which this would be, in a case where we were not fully persuaded we had authority to do so.

i Grayson v. Virginia, 3 D. 320.

Chisholm, Executor, v. Georgia. 2 D. This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case, 2 D. 401, 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 ver

dict been given for the plaintiff, it would have been our duty, [*430 ) 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 in 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 arguments of the Attorney-General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained.

The action is an action of assumpsit. The particular question then, before the Court is, will an action of assumpsit lie against a State ? This particular question, abstracted from the general one, namely, Whether a State can, in any instance, be sued, I took the liberty to propose to the consideration of the Attorney-General, last term. I did so, because I have often found a great deal of confusion to arise from taking too large a view at once, and I had found myself embarrassed on this very subject, until I considered the abstract question itself. The Attorney-General has spoken to it, in deference to my request, as he has been pleased to intimate, but he spoke to this particular question slightly, conceiving it to be involved in the general one; and after establishing, as he thought, that point, he seemed to consider the other followed of course. He expressed, indeed, some doubt how to prove what appeared so plain. It seemed to him, if I recollect right, to depend principally on the solution of this simple question - can a State assume? But the Attorney-General must know, that in England, certain judicial proceedings, not inconsistent with the sovereignty, may take place against the crown, but that an action of assumpsit will not lie. Yet surely the King can assume as well as a State. So can the United States themselves, as well as any State in the Union : yet the Attorney-General himself has taken some pains to show that no action whatever is maintainable against the United States. I shall, therefore, confine myself as much as possible to the particular question before the Court, though every thing I have to say upon it will affect every kind of suit, the object of which is to compel the payment of money by a State.

The question, as I before observed, is — Will an action of assumpsit

Chisholm, Executor, v. Georgia. 2 D.

lie against a State? If it will, it must be in virtue of the Constitution of the United States, and of some law of Congress conformable thereto. The part of the Constitution concerning the judicial power is as follows, namely: Art. 3, § 2. The judicial powers shall extend, 1. To all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; 2. To all cases affecting ambassadors, or other public ministers, and consuls; 3. To all cases of admiralty and maritime jurisdiction; 4. To controversies to which the United States shall be a party ; 5. To con- ( 431" ] troversies between two or more States; between a State and citizens of another State ; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State or the citizens thereof, and foreign States, citizens, or subjects. The Constitution, therefore, provides for the jurisdiction wherein a State is a party, in the following instances :- 1st. Controversies between two or more States. 2d. Controversies between a State and citizens of another State. 3d. Controversies between a State and foreign States, citizens or subjects. And it also provides, that, in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.

The words of the general Judicial Act, conveying the authority of the Supreme Court, under the Constitution, so far as they concern this question, are as follow:- $ 13, 1 U. S. St. at Large, 80, “ That 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. And shall have, exclusively, all such jurisdiction of suits or proceedings against ambassadors or other public ministers, or their domestics or domestic servants, as a court of law can have or exercise consistently with the law of nations; and original, but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul, or viceconsul, shall be a party.

The Supreme Court hath, therefore, First — Exclusive jurisdiction in every controversy of a civil nature; 1st. Between two or more States; 2d. Between a State and a foreign State; 3d. Where a suit or proceeding is depending against ambassadors, other public ministers, or their domestics or domestic servants. Second - Original, but not exclusive jurisdiction ; 1st. Between a State and citizens of other States ; 2d. Between a State and foreign citizens or subjects; 3d. Where a suit is brought by ambassadors, or other pub

Chisholm, Executor, v. Georgia. 2 D.

lic ministers ; 4th. Where a consul or vice-consul is a party. The suit now before the Court, if maintainable at all, comes within the latter description, it being a suit against a State by a citizen of another State.

The Constitution is particular in expressing the parties who may be the objects of the jurisdiction in any of these cases, but in respect to the subject matter upon which such jurisdiction is to be exercised, uses the word “ controversies” only. The act of Congress more particularly mentions civil controversies, a qualification of the general

word in the Constitution, which I do not doubt every rea[ 432 * ] sonable man will think well warranted, for * it cannot be

presumed that the general word “controversies” was intended to include any proceedings that relate to criminal cases, which in all instances that respect the same government only, are uniformly considered of a local nature, and to be decided by its particular laws. The word “controversy," indeed, would not naturally justify any such construction, but nevertheless it was perhaps a proper instance of caution in Congress to guard against the possibility of it.

A general question of great importance here occurs. What controversy of a civil nature can be maintained against a State by an individual ? The framers of the Constitution, I presume, must have meant one of two things: Either, 1st. In the conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the general government, (which it must be admitted are full and discretionary, within the restrictions of the Constitution itself,) to refer to antecedent laws for the construction of the general words they use; or, 2d. To enable Congress, in all such cases to pass all such laws as they might deem necessary and proper to carry the purposes of this Constitution into full effect, either absolutely at their discretion, or at least in cases where prior laws were deficient for such purposes, if any such deficiency existed.

The Attorney-General has indeed suggested another construction, a construction, I confess, that I never heard of before, nor can I now consider it grounded on any solid foundation, though it appeared to me to be the basis of the Attorney-General's argument. His construction I take to be this :—“ That the moment a Supreme Court is formed, it is to exercise all the judicial power vested in it by the Constitution, by its own authority, whether the legislature has prescribed methods of doing so, or not.” My conception of the Constitution is entirely different. I conceive that all the courts of the United States must receive not merely their organization as to the number of judges of which they are to consist, but all their author. ity, as to the manner of their proceeding, from the legislature only. Chisholm, Executor, v. Georgia. 2 D. This appears to me to be one of those cases, with many others, in which an article of the Constitution cannot be effectuated without the intervention of the legislative authority. There being many such, at the end of the special enumeration of the powers of Congress in the Constitution, is this general one: “ To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof.” None will deny, that an act of legislation is necessary to say, at least, of what number the Judges are to consist; the President, with the consent of the Senate, could not nominate a number at their * discretion. The Constitution in- [ *433 ] tended this article, so far at least, to be the subject of a legislative act. Having a right thus to establish the Court, and it being capable of being established in no other manner, I conceive it necessarily follows, that they are also to direct the manner of its proceedings. Upon this authority there is, that I know, but one limit; that is, " that they shall not exceed their authority.” If they do, I have no hesitation to say, that any act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others, which we are not only bound to consult, but sworn to observe ; and, therefore, where there is an interference, being superior in obligation to the other, we must unquestionably obey that in preference. Subject to this restriction, the whole business of organizing the courts, and directing the methods of their proceeding where necessary, I conceive to be in the discretion of Congress. If it shall be found on this occasion, or on any other, that the remedies now in being are defective for any purpose it is their duty to provide for, they no doubt will provide others. It is their duty to legislate, so for as is necessary, to carry the Constitution into effect. It is ours only to judge. We have no reason, nor any more right to distrust their doing their duty than they have to distrust that we all do ours. There is no part of the Constitution that I know of, that authorizes this Court to take up any business where they left it, and in order that the powers given in the Constitution may be in full activity, supply their omission by making new laws for new cases ; or, which I take to be same thing, applying old principles to new cases materially different from those to which they were applied before.

With regard to the Attorney-General's doctrine of incidents, that was founded entirely on the supposition of the other I have been considering. The authority contended for is certainly not one of those necessarily incident to all courts merely as such.

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