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Chisholm, Executor, v. Georgia. 2 D.
entered up against the State, and a writ of inquiry of damages be awarded.”
Wilson, J. This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States ? This question, important in itself, will depend on others more important still; and may, perhaps, be ultimately resolved into one no less radical than this — “Do the people of the United States form a Nation?”
A cause so conspicuous and interesting, should be carefully and accurately viewed from every possible point of sight. I shall examine it, 1st. By the principles of general jurisprudence. 2d. By the laws and practice of particular states and kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law the several states and governments spread over our globe are considered as forming a society, not a nation. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has been even contemplated. 3dly, and chiefly, I shall examine the important question before us, by the constitution of the United States, and the legitimate result of that valuable instrument.
I. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an era not less remarkable, and far more illustrious than that formed by the justly celebrated Bacon, in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent inquiry into the
human mind, on the principles of common sense, speaking | *454 of the sceptical and * illiberal philosophy which under bold,
but false, pretensions to liberality, prevailed in many parts of Europe before he wrote, makes the following judicious remark : “ The language of philosophers, with regard to the original faculties of the mind, is so adapted to the prevailing system, that it cannot fit any other; like a coat that fits the man for whom it was made, and shows him to advantage, which yet will fit very awkward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations, without using new words and phrases, or giving a different meaning to those that are received."
Chisholm, Executor, v. Georgia. 2 D. With equal propriety may this solid remark be applied to the great subject, on the principles of which the decision of this court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those who wished and meant to be free. In the place of those expressions I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those for which hitherto they have been frequently used; and one of them I shall apply to an object still more different from that to which it has hitherto been more frequently, I may say almost universally, applied. In these purposes, and in this application, I shall be justified by example the most splendid, and by authority the most binding; the example of the most refined as well as the most free nation known to antiquity; and the authority of one of the best constitutions known to modern times. With regard to one of the terms — State — this authority is declared : with regard to the other – Sovereign — the authority is implied only: but it is equally strong: for, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive.
To the constitution of the United States, the term sovereign is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those who ordained and established that constitution. They might have announced themselves “ sovereign” people of the United States : but serenely conscious of the fact, they avoided the ostentatious declaration
Having thus avowed my disapprobation of the purposes for which the terms, State and Sovereign, are frequently used, and of the object to which the application of the last of them is almost universally made, it is now proper that I should disclose the meaning which I assign to both, and the application * which I make [ * 455 1 of the latter. In doing this I shall have occasion, incidentally, to evince how true it is that states and governments were made for man; and at the same time how true it is that his creatures and servants have first deceived, next vilified, and at last oppressed their master and maker.
Man, fearfully and wonderfully made, is the workmanship of his all perfect Creator. A State, useful and valuable as the contrivance is, is the inferior contrivance of man, and from his native dignity derives all its acquired importance. When I speak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to
that which is divine. Of all human contrivances, it is certainly most transcendently excellent. It is concerning this contrivance that Cicero says so sublimely, “ Nothing, which is exhibited upon our globe, is more acceptable to that divinity which governs the whole universe, than those communities and assemblages of men which, lawfully associated, are denominated States.” 1
Let a State be considered as subordinate to the people: but let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length in the science of politics, there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the government has often claimed precedence of the State; and to this perversion, in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there, but the first degree is still too prevalent, even in the several States of which our Union is composed. By a State, I mean a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests; it has its rules; it has its rights; and it has its obligations. It may acquire property distinct from that of its members; it may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts, and for damages aris
ing from the breach of those contracts. In all our contem[ * 456 ) plations, however, concerning this * feigned and artificial
person, we should never forget that, in truth and nature, those who think, and speak, and act, are men.
Is the foregoing description of a State a true description? It will not be questioned but it is. Is there any part of this description which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done, if engagements are not fulfilled, is it, upon general principles of right, less proper in the case of a great number, than in the case
1 Som. Scip. c. 3.
Chisholm, Executor, v. Georgia. 2 D. of an individual, to secure, by compulsion, that which will not be voluntarily performed. Less proper it surely cannot be. The only reason, I believe, why a free man is bound by human laws, is that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenablc to the courts of justice, which are formed and authorized by those laws. If one free man, an original sovereign, may do all this, why may not an aggregate of free men, a collection of original sovereigns, do this likewise ? If the dignity of each singly is undiminished, the dignity of all jointly must be unimpaired. A State, like a merchant, makes a contract; a dishonest State, like a dishonest merchant, wilfully refuses to discharge it; the latter is amenable to a court of justice. Upon general principles of right shall the former, when summoned to answer the fair demands of its creditor, be permitted, Proteus-like, to assume a new appearance, and to insult him and justice by declaring I am a sovereign State ? Surely not. Before a claim so contrary, in its first appearance, to the general principles of right and equality, be sustained by a just and impartial tribunal, the person, natural or artificial, entitled to make such claim, should certainly be well known and authenticated. Who or what is a sovereignty? What is his or its sovereignty? On this subject, the errors and the mazes are endless and inexplicable. To enumerate all, therefore, will not be expected: To take notice of some will be necessary to the full illustration of the present important cause. In one sense, the term sovereign has for its correlative, subject. In this sense, the term can receive no application ; for it has no object in the constitution of the United States. Under that constitution there are citizens, but no subjects. “ Citizen of the United States.” I “ Citizens of another State.” “ Citizens of different States.” “ A State or citizen thereof." 2 The term, subject, occurs indeed once in the instrument, but to mark the contrast strongly, the epithet “foreign "3 is prefixed. In this sense, I presume the State of Georgia has no claim upon * her own citizens; in this sense, I am certain, she can [ * 457 1 have no claim upon the citizens of another State.
In another sense, according to some writers, every State which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done as the individuals of England are said, by their late instructors, to have done, - surrendered the supreme power to the State or government, Chisholm, Executor, v. Georgia. 2 D. and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the supreme power in their own hands, and on that supreme power have made the State dependent, instead of being sovereign ; these are questions to which, as a judge in this cause, I can neither know nor suggest the proper answers; though, as a citizen of the Union, I know, and am interested to know, that the most satisfactory answers can be given. As a citizen, I know the government of that State to be republican; and my short definition of such a government is, one constructed on this principle, that the supreme power resides in the body of the people. As a judge of this court, I know, and can decide upon the knowledge that the citizens of Georgia, when they acted upon the large scale of the Union, as a part of the “ people of the United States," did not surrender the supreme or sovereign power to that State; but, as to the purposes of the Union, retained it to themselves. As to the purposes of the Union, therefore, Georgia is not a sovereign State. If the judicial decision of this case forms one of those purposes, the allegation, that Georgia is a sovereign State, is unsupported by the fact. Whether the judicial decision of this cause is, or is not, one of those purposes, is a question which will be examined particularly in a subsequent part of my argument.
"Art. 1, s. 2.
2 Art. 3, s. 3.
3 Art. 3, s. 3.
4 Vatt. B. 1. c. 1, s. 4.
There is a third sense in which the term sovereign is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this court over the State of Georgia. In this sense, sovereignty is derived from a feudal source; and, like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause by which that influence was produced never extended to the American States. The accurate and well informed President Henault, in his excellent chronological abridgment of the history of France, tells us, that about the end of the second race of kings a new kind of possession was acquired, under the name of fief. The governors
of cities and provinces usurped, equally, the property of [* 458 ] *land and the administration of justice; and established
themselves as proprietary seigniors over those places in which they had been only civil magistrates or military officers. By this means there was introduced into the State a new kind of authority, to which was assigned the appellation of sovereignty. In pro
i Ht. 113.