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Chisholm, Executor, v. Georgia. 2 D. c. 22. The case, Mich. 10 H. 4, 4, No. 8, is full as to this matter. The king recovers in a quare impedit by default against one who was never summoned; the party cannot have a writ of deceit without a petition. If then, says the book, he concludes his petition generally “ que le Roy lui face droit," that the king will cause right to be done, and the answer be general, it must go into the chancery, that the right may be inquired of by commission; and upon the inquest found, an original writ must be directed to the jus. tices to examine the deceit; otherwise the justices before whom the suit was, cannot meddle. But if he conclude his petition especially, that it may please his Highness to command his justices to proceed to the examination, and the indorsement be accordingly, that had given the justices a jurisdiction. They might in such case have proceeded upon the petition without any commission, or any writ to be sued out; the petition and answer indorsed giving a sufficient jurisdiction to the court to which it was directed. And as the book I have mentioned proves this, so many other authorities may be cited.” He accordingly mentions many other instances, immaterial to be recited here, particularly remarking a very extraordinary difference in the case belonging to the revenue, in regard to which he said he thought
there was not an instance to be found where petitions were [ * 444 ] answered, soit droit fait aux parties, (let right be done * to
the parties.) The usual reference appears to have been to the treasurer and barons, commanding them to do justice. Sometimes a writ under the great seal was directed to be issued to them for that purpose ; sometimes a writ from the chancery directing payment of money immediately, without taking notice of the barons. And other varieties appear to have taken place. See Hargrave's Case of the Bankers, p. 73, et seq. But in all cases of petition of right, of whatever nature is the demand, I think it is clear, beyond all doubt, that there must be some indorsement or order of the king himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace, and not on compulsion.
In a very late case, in England, this point was incidentally discussed. The case I refer to is the case of Macbeath against Haldimand, reported 1 Durnford & East, 172. The action was against the defendant for goods, furnished by the defendant's order in Canada, when the defendant was governor of Quebec. The defence was, that the plaintiff was employed by the defendant in his official capacity, and not upon his personal credit, and that the goods being therefore furnished for the use of government, and the defendant not having undertaken personally to pay, he was not liable. This defence was set up at the trial on the plea of the general issue, and the Chisholm, Executor, v. Georgia. 2 D. jury, by Judge Buller's direction, found a verdict for the defendant. Upon a motion for a new trial, he reported particularly all the facts given in evidence, and said his opinion had been, at the trial, that the plaintiff should be nonsuited; " but the plaintiff's counsel appearing for their client, when he was called, he left the question to the jury, telling them that they were bound to find for the defendant in point of law. And upon their asking him whether, in the event of the defendant not being liable, any other person was, he told them that was no part of their consideration; but being willing to give them any information, he added, that he was of opinion that if the plaintiff's demands were just, his proper remedy was by a petition of right to the crown. On which they found a verdict for the defendant. The rule for granting a new trial was moved for, on the misdirection of two points. 1st. That the defendant had, by his own conduct, made himself liable, which question should have been left to the jury. 2d. That the plaintiff had no remedy against the crown by a petition of right, on the supposition of which, the jury had been induced to give their verdict.” “ Lord Mansfield, chief justice, now declared that the court did not feel it necessary for them to give any opinion on the second ground. His lordship said, that great difference had arisen since the revolution with respect to the expenditure of the public money. Before that period, all the public supplies were given to the king, who in * his individual capacity con- [ * 445 ) tracted for all expenses. He alone had the disposition of the public money. But since that time the supplies had been appropriated by parliament to particular purposes, and now, whoever advances money for the public service trusts to the faith of parliament. That according to the tenor of Lord Sorners's argument in the Bankers' Case, though a petition of right would lie, yet it would probably produce no effect. No benefit was ever derived from it in the Bankers' Case; and parliament was afterwards obliged to provide a particular fund for the payment of those debts. Whether, however, this alteration in the mode of distributing the supplies had made any difference in the law upon this subject, it was unnecessary to determine; at any rate, if there were a recovery against the crown, application must be made to parliament, and it would come under the head of supplies for the year.” The motion was afterwards argued on the other ground (with which I have at present nothing to do) and rejected.
In the old authorities there does not appear any distinction between debts that might be contracted personally by the king for his own private use, and such as he contracted in his political capacity for the service of the kingdom. As he had however then fixed
Chisholm, Executor, v. Georgia. 2 D.
and independent revenues, upon which depended the ordinary support of government, as well as the expenditure for his own private occasions, probably no material distinction at that time existed, or could easily be made. A very important distinction may however perhaps now subsist between the two cases, for the reasons intimated by Lord Mansfield; since the whole support of government depends now on parliamentary provisions, and except in the case of the civil list, those for the most part annual.
Thus it appears that in England, even in case of a private debt contracted by the king, in his own person, there is no remedy but by petition; which must receive his express sanction, otherwise there can be no proceeding upon it. If the debt contracted be avowedly for the public uses of government, it is at least doubtful whether that remedy will lie, and if it will, it remains afterwards in the power of parliament to provide for it or not among the current supplies of the year.
Now let us consider the case of a debt due from a State. None can, I apprehend, be directly claimed but in the following instances. 1st. In case of a contract with the legislature itself. 2d. In case of a contract with the executive, or any other person, in consequence of an express authority from the legislature. 3d. In case of a contract with the executive without any special authority. In the first and second cases, the contract is evidently made on the public faith alone.
Every man must know that no suit can lie against a legisla[ * 446 ] tive body. His only * dependence therefore can be, that
the legislature, on principles of public duty, will make a provision for the execution of their own contracts, and if that fails, whatever reproach the legislature may incur, the case is certainly without remedy in any of the courts of the State. It never was pretended, even in the case of the crown in England, that if any contract was made with parliament, or with the crown by virtue of an authority from parliament, that a petition to the crown, would in such case lie. In the third case, a contract with the governor of a State without any special authority. This case is entirely different from such a contract made with the crown in England. The crown there has very high prerogatives, in many instances is a kind of trustee for the public interest, in all cases represents the sovereignty of the kingdom, and is the only authority which can sue or be sued in any manner on behalf of the kingdom in any court of justice. A governor of a State is a mere executive officer; his general authority very narrowly limited by the constitution of the State; with no undefined or disputable prerogatives; without power to affect one shilling of the public money, but as he
Chisholm, Executor, v. Georgia. 2 D.
is authorized under the constitution, or by a particular law; having no color to represent the sovereignty of the State, so as to bind it in any manner to its prejudice, unless specially authorized thereto. And therefore all who contract with him do it at their own peril, and are bound to see, or take the consequence of their own indiscretion, that he has strict authority for any contract he makes. Of course such contract, when so authorized, will come within the description I mentioned of cases where public faith alone is the ground of relief, and the legislative body the only one that can afford a remedy, which from the very nature of it must be the effect of its discretion, and not of any compulsory process. If, however, any such cases were similar to those which would entitle a party to relief by petition to the king in England, that petition being only presentable to him as he is the sovereign of the kingdom, so far as analogy is to take place, such petition in a State could only be presented to the sovereign power, which surely the governor is not.
The only constituted authority to which such an application could with any propriety be made, must undoubtedly be the legislature, whose express consent, upon the principle of analogy, would be necessary to any further proceeding. So that this brings us, though by a different route, to the same goal — the discretion and good faith of the legislative body.
There is no other part of the common law, besides that which I have considered, which can by any person be pretended in any manner to apply to this case, but that which concerns corporations. The applicability of this, the attorney-general with great candor has expressly waived. But as it may be * urged on other [ * 447 1 occasions, and as I wish to give the fullest satisfaction, I will say a few words to that doctrine. Suppose therefore, it should be objected that the reasoning I have now used is not conclusive, because, inasmuch as a State is made subject to the judicial power of congress, its sovereignty must not stand in the way of the proper exercise of that power, and therefore in all such cases, though in no other, a State can only be considered as a subordinate corporation merely. I answer, 1st. That this construction can only be allowed, at the utmost, upon the supposition that the judicial authority of the United States, as it respects States, cannot be effectuated without proceeding against them in that light; a position I by no means ad. mit. 2d. That according to the principles I have supported in this argument, admitting that States ought to be so considered for that purpose, an act of the legislature is necessary to give effect to such a construction, unless the old doctrine concerning corporations will naturally apply to this particular case. 3d. That as it is evident the
Chisholm, Executor, v. Georgia. 2 D. act of congress has not made any special provision in this case, grounded on any such construction, so it is to my mind perfectly clear that we have no authority, upon any supposed analogy between the two cases, to apply the common doctrine concerning corpora. tions, to the important case now before the court. I take it for granted, that when any part of an ancient law is to be applied to a new case, the circumstances of the new case must agree in all essential points with the circumstances of the old cases to which that ancient law was formerly appropriated. Now there are, in my opi. nion, the most essential differences between the old cases of corpora. tions to which the law intimated has reference, and the great and extraordinary case of States separately possessing, as to every thing simply relating to themselves, the fullest powers of sovereignty, and yet in some other defined particulars subject to a superior power composed out of themselves for the common welfare of the whole. The only law concerning corporations, to which I conceive the least reference is to be had, is the common law of England on that subject. I need not repeat the observations I made in respect to the operation of that law in this country. The word “corporations,” in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic, sole or aggregate, whether its power be restricted or transcendent, is in this sense “ a corporation.” The king, accordingly, in England, is called a corporation. 10 Co. 29, b. So also, by a very respectable author (Sheppard, in his Abridgement, 1 Vol. 431,) is the parliament itself. In this extensive sense, not only each State singly, but even the United States may without im.
propriety be termed “corporations.” I have, therefore, in [ * 418 ] contradistinction to this large and indefinite * term, used the
term “subordinate corporations," meaning to refer to such only (as alone capable of the slightest application, for the purpose of the objection) whose creation and whose powers are limited by law.
The differences between such corporations, and the several States in the Union, as relative to the general government, are very obvious in the following particulars. 1st. A corporation is a mere creature of the king, or of parliament; very rarely of the latter; most usually of the former only. It owes its existence, its name, and its laws, except such laws as are necessarily incident to all corporations merely as such, to the authority which creates it. A State does not owe its origin to the government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: the voluntary and deliberate choice of the people. 2d. A corporation can do no act but what is subject to the revision either of a court of justice or of