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Chisholm, Executor, v. Georgia. 2 D. some other authority within the government. A State is altogether exempt from the jurisdiction of the courts of the United States, or from any other exterior authority, unless in the special instances where the general government has power derived from the constitution itself. 3d. A corporation is altogether dependent on that government to which it owes its existence. Its charter may be forfeited by abuse. Its authority may be annihilated without abuse, by an act of the legislative body. A State, though subject in certain specified particulars to the authority of the government of the United States, is, in every other respect, totally independent upon it. The people of the State created, the people of the State can only change its constitution. Upon this power there is no other limitation but that imposed by the constitution of the United States — that it must be of the republican form. I omit minuter distinctions. These are so palpable, that I never can admit that a system of law calculated for one of these cases is to be applied, as a matter of course, to the other, without admitting, as I conceive, that the distinct boundaries of law and legislation may be confounded in a manner that would make courts arbitrary, and in effect makers of a new law, instead of being, as certainly they alone ought to be, expositors of an existing one. If still it should be insisted, that though a State cannot be considered upon the same footing as the municipal corporations I have been considering, yet, as relative to the powers of the general government it must be deemed in some measure dependent; admitting that to be the case, which to be sure is, so far as the necessary execution of the powers of the general government extends, yet in whatever character this may place a State, this can only afford a reason for a new law, * calculated to effect the [ * 449 ] powers of the general government in this new case. But it affords no reason whatever for the court admitting a new action to fit a case, to which no old ones apply, when the application of law, not the making of it, is the sole province of the court.
I have now, I think, established the following particulars. 1st. That the constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts, and prescribing their methods of proceeding. 2d. That congress has provided no new law in regard to this case, but expressly referred us to the old. 3d. That there are no principles of the old law, to which we must have recourse, that in any manner authorize the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is, that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with. From the manner in which I have viewed this subject, so different
Chisholm, Executor, v. Georgia. 2 D. from that in which it has been contemplated by the attorney-general, it is evident that I have not had occasion to notice many arguments offered by the attorney-general, which certainly were very proper, as to his extended view of the case, but do not affect mine. No part of the law of nations can apply to this case, as I apprehend, but that part which is termed “ The Conventional Law of Nations;” nor can this any otherwise apply than as furnishing rules of interpretation, since unquestionably the people of the United States had a right to form what kind of union, and upon what terms they pleased, without reference to any former examples. If, upon a fair construction of the constitution of the United States, the power contended for really exists, it undoubtedly may be exercised, though it be a power of the first impression. If it does not exist, upon that authority, ten thousand examples of similar powers would not warrant its assumption. So far as this great question affects the constitution itself, if the present afforded, consistently with the particular grounds of my opinion, a proper occasion for a decision upon it, I would not shrink from its discussion. But it is of extreme moment that no judge should rashly commit himself upon important questions, which it is unnecessary for him to decide. My opinion being, that even if the constitution would admit of the exercise of such a power, a new law is necessary for the purpose, since no part of the existing law applies, this alone is sufficient to justify my determi. nation in the present case. So much, however, has been said on the constitution, that it may not be improper to intimate that my present opinion is strongly against any construction of it, which will
admit, under any circumstances, a compulsive suit against [ * 450 ] a State for the recovery of money. I *think every word in
the constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication, neither of which I consider, can be found in this case, would authorize the deduction of so high a power. This opinion I hold, however, with all the reserve proper for one, which, according to my sentiments in this case, may be deemed in some measure extra-judicial. With regard to the policy of maintaining such suits, that is not for this court to consider, unless the point in all other respects was very doubtful. Policy might then be argued from with a view to preponderate the judgment. Upon the question before us, I have no doubt. I have therefore nothing to do with the policy. But I confess, if I was at liberty to speak on that subject, my opinion on the policy of the case would also differ from that of the attorney-general. It is, however, a delicate topic. I pray to God, that if the attorney-general's doctrine, as to the law, be esta
Chisholm, Executor, v. Georgia. 2 D. blished by the judgment of this court, all the good he predicts from it may take place, and none of the evils with which, I have the concern to say, it appears to me to be pregnant.
Blair, J. In considering this important case, I have thought it best to pass over all the strictures which have been made on the various European confederations; because, as on the one hand, their likeness to our own is not sufficiently close to justify any analogical application; so, on the other, they are utterly destitute of any binding authority here. The constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal. Whatever be the true language of that, it is obligatory upon every member of the Union; for no State could have become a member, but by an adoption of it by the people of that State. What then do we find there requiring the submission of individual States to the judicial authority of the United States ? This is expressly extended, among other things, to controversies between a State and citizens of another State. Is then the case before us one of that description ? Undoubtedly it is, unless it may be a sufficient denial to say, that it is a controversy between a citizen of one State and another State. Can this change of order be an essential change in the thing intended? And is this alone a sufficient ground from which to conclude, that the jurisdiction of this court reaches the case where a State is plaintiff, but not where it is defendant ? In this latter case, should any man be asked whether it was not a con. troversy between a State and citizen of another State, must not the answer be in the affirmative ? A dispute between A and B, is surely a dispute between B and A. Both cases, I have no doubt, were intended; and probably the State was first named, * in respect to the dignity of a State. But that very dignity [*451 ] seems to have been thought a sufficient reason for confining the sense to the case where a State is plaintiff. It is, however, a sufficient answer to say, that our constitution most certainly contemplates, in another branch of the cases enumerated, the maintaining a jurisdiction against a State as defendant; this is unequivo. cally asserted when the judicial power of the United States is extended to controversies between two or more States; for there, a State must, of necessity, be a defendant. It is extended, also, to controversies between a State and foreign States; and if the argument taken from the order of designation were good, it would be meant here that this court might have cognizance of a suit where a State is plaintiff, and some foreign State a defendant, but not where a foreign State brings a suit against a State. This, however, not to
Chisholm, Executor, v. Georgia. 2 D. mention that the instances may rarely occur when a State may have an opportunity of suing, in the American courts, a foreign State, seems to lose sight of the policy which, no doubt, suggested this provision, namely, that no State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature. But if a foreign State, though last named, may nevertheless be a plaintiff against an individual State, how can it be said that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cases where a State is plaintiff? After describing, generally, the judicial powers of the United States, the constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party; but is not a State a party as well in the condition of a defendant as in that of a plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a plaintiff State? It seems to me that if this court should refuse to hold jurisdiction of a case where a State is defendant, it would renounce part of the authority conferred, and consequently part of the duty imposed on it by the constitution; because it would be a refusal to take cognizance of a case where a State is a party. Nor does the jurisdiction of this court, in relation to a State, seem to me to be questionable on the ground that congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual; the argument ab inutili may weigh much in cases depending upon the construction of doubtful legislative acts, but can have no force, I think, against the clear and positive directions of an act of congress and of the constitution. Let us go on
as far as we can; and if, at the end of the business, not[* 452 ] withstanding the powers given us in the 14th section * of
the judicial law, we meet difficulties insurmountable to us, we must leave it to those departments of government which have higher powers; to which, however, there may be no necessity to have recourse. Is it altogether a vain expectation that a State may haye other motives than such as arise from the apprehension of coercion, to carry into execution a judgment of the Supreme Court of the United States, though not conformable to their own ideas of justice? Besides, this argument takes it for granted that the judgment of the court will be against the State; it possibly may be in favor of the State; and the difficulty vanishes. Should judgment be given against the plaintiff, could it be said to be void because extra-judi. cial ? If the plaintiff, grounding himself upon that notion, should renew his suit against the State, in any mode in which she may per.
Chisholm, Executor, v. Georgia. 2 D.
mit herself to be sued in her own courts, would the attorneygeneral for the State be obliged to go again into the merits of the case, because the matter, when here, was coram non judice? Might he not rely upon the judgment given by this court in bar of the new suit? To me it seems clear that he might. And if a State may be brought before this court, as a defendant, I see no reason for confining the plaintiff to proceed by way of petition; indeed there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own courts, such a method may have been established as the most respectful form of demand; but we are not now in a State court; and if sovereignty be an exemption from suit in any other than the sovereign's own courts, it follows that when a State, by adopting the constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.7
With respect to the service of the summons to appear, the manner in which it has been served seems to be as proper as any which could be devised for the purpose of giving notice of the suit, which is the end proposed by it, the governor being the head of the executive department, and the attorney-general the law officer, who generally represents the State in legal proceedings : and this mode is the less liable to exception when it is considered that in the suit brought in this court by the State of Georgia against Brailsford, 2 D. 402, and others, it is conceived in the name of the governor in behalf of the State. If the opinion which I have delivered, respecting the liability of a State to be sued in this court, should be the opinion of the court, it will come in course to consider what is the proper step to be taken for inducing appearance, none having been yet entered in behalf of the defendant. A judgment by default, in the present stage of the business, and writ of inquiry of damages would * be too precipitate in any case, and too in- [ * 453 ) compatible with the dignity of a State, in this. Farther opportunity of appearing to defend the suit ought to be given. The conditional order moved for the last term, the consideration of which was deferred to this, seems to me to be a very proper mode; it will warn the State of the meditated consequence of a refusal to appear, and give an opportunity for more deliberate consideration. The order, I think, should be thus : “ Ordered, that unless the State of Georgia should, after due notice of this order by a service thereof upon the governor and attorney-general of the said State, cause an appearance to be entered in behalf of the State, on the 5th day of the next term, or then show cause to the contrary, judgment be then