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Chisholm, Executor, v. Georgia. 2 D.. If therefore this Court is to be, as I consider it, the organ of the Constitution and the law — not of the Constitution only in respect to the manner of its proceeding — we must receive our directions from the legislature in this particular, and have no right to constitute ourselves an officina brevium, or take any other short method of doing what the Constitution has chosen, and in my opinion, with the most perfect propriety, should be done in another manner.

But the act of Congress has not been altogether silent upon this subject. The 14th section of the Judicial Act, 1 U. S. St. at Large, 81, provides in the following words : “ All the before mentioned courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute,

; which may be necessary for the exercise of their respective [ *434 ] *jurisdictions, and agreeable to the principles and usages of

law.” These words refer as well to the Supreme Court as to the other courts of the United States. Whatever writs we issue that are necessary for the exercise of our jurisdiction, must be agreeable to the principles and usages of law. This is a direction, I apprehend, we cannot supersede, because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the legislature did not choose to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so it has, I think, wisely referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of courts of justice, which the Attorney-General, in another case, reprobated with so much warmth, and with whose sentiments, in that particular, I most cordially join. The principles of law to which reference is to be had, either upon the general ground I first alluded to, or upon the special words I have above cited from the Judicial Act, I apprehend can be, either, 1st. Those of the particular laws of the State against which the suit is brought, or, 2d. Principles of law common to all the States. I omit any consideration arising from the word “ usages," though a still stronger expression. In regard to the principles of the particular laws of the State of Georgia, if they in any manner differed, so as to affect this question, from the principles of law common to all the States, it might be material to inquire whether there would be any propriety or congruity in laying down a rule of decision which would induce this consequence, that an action would lie in the Supreme Court against some States, whose laws admitted of a compulsory remedy against their own governments, but not against others wherein no such remedy was admitted, or which would require, perhaps, if the principle was received, fifteen different methods

Chisholm, Executor, v. Georgia. 2 D.

of proceeding against States, all standing in the same political relation to the general government, and none having any pretence to a distinction in its favor, or justly liable to any distinction to its prejudice. If any such difference existed in the laws of the different States there would seem to be a propriety, in order to induce uniformity, if a Constitutional power for that purpose exists, that Congress should prescribe a rule fitted to this new case, to which no equal, uniform, and impartial mode of proceeding could otherwise be applied.

But this point I conceive it is unnecessary to determine, because I believe there is no doubt that neither in the State now in question, nor in any other in the Union, any particular legislative mode authorizing a compulsory suit for the recovery of money against a State, was in being, either when the * Constitution was [ * 435 ] adopted, or at the time the Judicial Act was passed. Since that time an act of assembly, for such a purpose, has been passed in Georgia. But that surely could have no influence in the construction of an act of the legislature of the United States passed before.

The only principles of law, then, that can be regarded, are those common to all the States. I know of none such which can affect this case, but those that are derived from what is properly termed " the common law," a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ, perhaps, in all the States; and therefore it is probable the common law in each, is in some respects different. But it is certain that in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference or have any partial effect. No other part of the common law, of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. Every State in the Union, in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign as the United States are, in respect to the powers surrendered. The United States are sovereign as to all the powers of government actually surrendered: each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them. Of course the Chisholm, Executor, v. Georgia. 2 D. part not surrendered must remain as it did before. The powers of the general government, either of a legislative or executive nature, or which particularly concern treaties with foreign powers, do, for the most part, if not wholly, affect individuals, and not States; they require no aid from any State authority. This is the great leading distinction between the old articles of confederation and the present constitution. The judicial power is of a peculiar kind. It is indeed commensurate with the ordinary legislative and executive powers of the general government, and the power which concerns treaties. But it also goes further. Where certain parties are concerned, although the subject in controversy does not relate to any of the special objects of authority of the general government, wherein the separate sovereignties of the States are blended in one common mass

of supremacy, yet the general government has a judicial [ *436 ] authority in regard to such * subjects of controversy, and

the legislature of the United States may pass all laws necessary to give such judicial authority its proper effect. So far as States under the Constitution can be made legally liable to this authority, so far to be sure they are subordinate to the authority of the United States, and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires. The authority extends only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose. That surely can refer only to such controversies in which a State can be a party; in respect to which, if any question arises, it can be determined, according to the principles I have supported, in no other manner than by a reference either to preëxistent laws, or laws passed under the Constitution, and in conformity to it.

Whatever be the true construction of the Constitution in this par. ticular; whether it is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption; yet it is certain that the legislature has, in fact, proceeded upon the former supposition, and not upon the lat. ter. For, besides what I noticed before, as to an express reference to principles and usages of law, as the guide of our proceeding, it is observable that in instances like this before the Court, this Court hath a concurrent jurisdiction only; the present being one of those cases, where, by the Judicial Act, this Court hath original, but not exclusive jurisdiction. This Court, therefore, under that act, can exercise no authority in such instances, but such authority as from the subjectChisholm, Executor, v. Georgia. 2 D. matter of it may be exercised in some other court. There are no courts with which such a concurrence can be suggested but the Circuit courts, or courts of the different States. With the former it cannot be; for admitting that the Constitution is not to have a restrictive operation, so as to confine all cases, in which a State is a party, exclusively to the Supreme Court, (an opinion to which I am strongly inclined) yet there are no words in the definition of the powers of the Circuit Court which give a color to an opinion, that where a suit is brought against a State by a citizen of another State, the Circuit Court could exercise any jurisdiction at all. If they could, however, such a jurisdiction, by the very terms of their authority, could be only concurrent with the courts of the several States. It follows, therefore, unquestionably, I think, that looking at the act of Congress, which I consider is, on this occasion, the limit of our authority, (whatever further might be constitutionally enacted) we can exercise no authority in the present instance, * consistently with the clear intention of the act, but such [ * 437 ] as a proper State court would have been at least competent to exercise at the time the act was passed.

If, therefore, no new remedy be provided, as plainly is the case, and consequently we have no other rule to govern us but the princi. ples of the preexistent laws, which must remain in force till superseded by others, then it is incumbent upon us to inquire whether, previous to the adoption of the Constitution, (which period, or the period of passing the law, in respect to the object of this inquiry, is perfectly equal) an action of the nature like this before the Court could have been maintained against one of the States in the Union, upon the principles of the common law, which I have shown to be alone applicable. If it could, I think it is now maintainable here. If it could not, I think, as the law stands at present, it is not maintainable ; whatever opinion may be entertained upon the construction of the Constitution, as to the power of Congress to authorize such a one. Now I presume it will not be denied that in every State in the Union, previous to the adoption of the Constitution, the only common-law principles in regard to suits that were in any manner admissible, in respect to claims against the State, were those which in England apply to claims against the crown; there being certainly no other principles of the common law which, previous to the adoption of this Constitution, could in any manner or upon any color apply to the case of a claim against a State in its own courts, where it was solely and completely sovereign, in respect to such cases at least. Whether that remedy was strictly applicable or not, still I apprehend there was no other. The only remedy in a case like that

VOL. I.

Chisholm, Executor, v. Georgia. 2 D. before the Court, by which, by any possibility, a suit can be maintained against the crown in England, or could be at any period from which the common law, as in force in America, could be derived, I believe is that which is called a petition of right. It is stated, indeed, in 1 Com. Dig. 218, that “until the time of Edward I. the king might have been sued in all actions as a common person.” And some authorities are cited for that position, though it is even there stated as a doubt. But the same authority adds — “but now none can have an action against the king, but one shall be put to sue to him by petition.” This appears to be a quotation or abstract from Theloall's Digest, which is also one of the authorities quoted in the former case. And this book appears (from the law catalogue) to have been printed so long ago as the year 1579. The same doctrine appears, according to a quotation in the first volume of Blackstone's Commentaries, 243, to be stated in Finch's Law, 255, the first edition of which, it seems, was published in 1579. This also more fully appears in

the case of the bankers, and particularly from the celebrated [*438 ] argument of * Lord Somers, in the time of William III. ;

for, though that case was ultimately decided against Lord Somers's opinion, yet the ground on which the decision was given no way invalidates the reasoning of that argument so far as it respects the simple case of a sum of money demandable from the king, and not by him secured on any particular revenues. The case is reported in Freeman, Vol. 1, p. 331 ; 5 Mod. 29; Skinn. 601, and lately, very elaborately, in a small pamphlet published by Mr. Hargrave, which contains all the reports at length, except Skinner's, together with the argument at large of Lord Somers, besides some additional matter.

The substance of the case was as follows:- King Charles II. having received large sums of money from bankers, on the credit of the growing produce of the revenue, for the payment of which tallies and orders of the Exchequer were given, (afterwards made transferable by statute,) and the payment of these having been afterwards postponed, the king at length, in order to relieve the bankers, in 1677 granted annuities to them out of the hereditary Excise, equal to six per cent interest on their several debts, but redeemable on payment of the principal. This interest was paid till 1683, but it then became in arrear, and continued so at the Revolution; and the suits which were commenced to enforce the payment of these arrears, were the subject of this case. The bankers presented a petition to the Barons of the Exchequer for the payment of the arrears of the annuities granted; to which petition the Attorney-General demurred. Two points were made : 1st, whether the grant out of the Excise

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