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Chisholm, Executor, v. Georgia. 2 D. cess of time, the feudal system was extended over France, and almost all the other nations of Europe. And every kingdom became, in fact, a large fief. Into England this system was introduced by the Conqueror; and to this era we may, probably, refer the English maxim, that the king or sovereign is the fountain of justice. But, in the case of the king, the sovereignty had a double operation. While it vested him with jurisdiction over others it excluded all others from jurisdiction over him. With regard to him there was no superior power; and, consequently, on feudal principles, no right of jurisdiction. « The law,” says Sir William Blackstone, “ ascribes to the king the attribute of sovereignty; he is sovereign and independent within his own dominions, and owes no kind of subjection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the king, even in civil matters; because no court can have jurisdiction over him, for all jurisdiction implies superiority of power.” This last position is only a branch of a much more extensive principle, on which a plan of systematic despotism has been lately formed in England, and prosecuted with unwearied assiduity and care. Of this plan the author of the Commentaries was, if not the introducer, at least the great supporter. He has been followed in it by writers later and less known; and his doctrines have, both on the other and this side of the Atlantic, been implicitly and generally received by those, who neither examined their principles nor their consequences. The principle is, that all human law must be prescribed by a superior. This principle I mean not now to examine. Suffice it at present to say, that another principle, very different in its nature and operations, forms, in my judgment, the basis of sound and genuine jurisprudence; laws derived from the pure source of equality and justice must be founded on the consent of those whose obedience they require. The sovereign, when traced to his source, must be found in the man.
I have now fixed, in the scale of things, the grade of a State; and have described its composure. I have considered the nature of sovereignty, and pointed its application to the proper object. I have examined the question before us by the principles of general jurisprudence. In those principles I find nothing which tends to evince an exemption of the State of Georgia from the jurisdiction of the court. I find every thing to have a contrary tendency.
* II. I am, in the second place, to examine this question by [ * 459 ) the laws and practice of different states and kingdoms. In
· Bl. Com. 241, 242.
Chisholm, Executor, v. Georgia. 2 D.
ancient Greece, as we learn from Isocrates, whole nations defended their rights before crowded tribunals. Such occasions as these excited, we are told, all the powers of persuasion; and the vehemence and enthusiasm of the sentiment was gradually infused into the Grecian language, equally susceptible of strength and harmony. In those days law, liberty, and refining science, made their benign progress in strict and graceful union. The rude and degrading league between the bar and feudal barbarism was not yet formed.
When the laws and practice of particular States have any application to the question before us, that application will furnish what is called an argument à fortiori ; because all the instances produced will be instances of subjects instituting and supporting suits against those who were deemed their own sovereigns. These instances are stronger than the present one; because between the present plaintiff and defendant no such unequal relation is alleged to exist.
Columbus achieved the discovery of that country which, perhaps, ought to bear his name. A contract made by Columbus furnished the first precedent for supporting, in his discovered country, the cause of injured merit against the claims and pretensions of haughty and ungrateful power. His son, Don Diego, wasted two years in incessant, but fruitless solicitation at the court of Spain, for the rights which descended to him in consequence of his father's original capitulation. He endeavored at length to obtain, by legal sentence, what he could not procure from the favor of an interested monarch. He commenced a suit against Ferdinand before the council which managed Indian affairs; and that court, with integrity which reflects honor on their proceedings, decided against the king, and sustained Don Diego's claim.'
Other States have instituted officers to judge the proceedings of their kings. Of this kind were the ephori of Sparta; of this kind also was the mayor of the palace, and afterwards the constable of France.
But of all the laws and institutions relating to the present question, none is so striking as that described by the famous Hottoman, in his book entitled Francogallia. When the Spaniards of Arragon elect a king, they represent a kind of play, and introduce a personage, whom they dignify by the name of Law, la Justiza, of Arragon. This personage they declare, by a public decree, to be greater and more powerful than their king; and then address him in the following remarkable expressions. “We, who are of as great worth as Chisholm, Executor, v. Georgia. 2 D. you, and can do more * than you can do, elect you to be [ * 460 ] our king, upon the conditions stipulated. But between you and us there is one of greater authority than you.” 1
"R. A. 231.
2 Sid. 131.
In England, according to Sir William Blackstone, no suit can be brought against the king, even in civil matters. So, in that kingdom, is the law at this time received. But it was not always so. Under the Saxon government, a very different doctrine was held to be orthodox. Under that government, as we are informed by the Mirror of Justice, a book said by Sir Edward Coke to have been written in part, at least, before the conquest, — under that government it was ordained that the king's court should be open to all plaintiffs, by which, without delay, they should have remedial writs, as well against the king or against the queen as against any other of the people.? The law continued to be the same for some centuries after the conquest. Until the time of Edward I. the king might have been sued as a common person. The form of the process was even imperative. “ Præcipe Henrico Regi Angliæ," &c. “ Command Henry, king of England,” &c.3 Bracton, who wrote in the time of Henry III., uses these very remarkable expressions concerning the king; “ in justitia recipienda, minimo de regno suo comparetur," — " in receiving justice, he should be placed on a level with the meanest person in the kingdom.”4 True it is, that now in England the king must be sued in his courts by petition; but even now, the difference is only in the form, not in the thing. The judgments or decrees of those courts will substantially be the same upon a precatory as upon a mandatory process. In the courts of justice, says the very able author of the considerations on the laws of forfeiture, the king enjoys many privileges; yet not to deter the subject from contending with him freely. The judge of the High Court of Admiralty in England made, in a very late cause, the following manly and independent declaration. “ In any case where the crown is a party, it is to be observed, that the crown can no more withhold evidence of documents in its possession than a private person. If the court thinks proper to order the production of any public instrument, that order must be obeyed. It wants no insignia of an authority derived from the crown.” O
“Judges ought to know that the poorest peasant is a man as well as the king himself; all men ought to obtain justice, since, in the estimation of justice, all men are equal; whether the prince complain of a peasant, or a peasant complain of the prince.”? These are the words of a king, -of the late Frederic of Prussia. In
1 Hot. 71 ; Book 31. 24 C. A. N. 487.
3 Brac. 107; Com. 104.
7 War. 343.
Chisholm, Executor, v. Georgia. 2 D. 1 * 461 ] his courts of justice, that great man stood upon * his native
greatness, and disdained to mount upon the artificial stilts of sovereignty.
Thus much concerning the laws and practice of other States and kingdoms. We see nothing against, but much in favor of the jurisdiction of this court over the State of Georgia, a party to this cause.
III. I am, thirdly and chiefly, to examine the important question now before us, by the constitution of the United States, and the legitimate result of that valuable instrument. Under this view, the question is naturally subdivided into two others. 1. Could the constitution of the United States vest a jurisdiction over the State of Georgia? 2. Has that constitution vested such jurisdiction in this court? I have already remarked that in the practice, and even in the science of politics, there has been frequently a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. This remark deserves a more particular illustration. Even in almost every nation which has been denominated free, the State has assumed a supercilious preëmiñence above the people who have formed it. Hence the haughty notions of state independence, state sovereignty and state supremacy. In despotic governments the government has usurped, in a similar manner, both upon the State and the people. Hence all arbitrary doctrines and pretensions concerning the supreme, absolute, and incontrollable power of government. In each, man is degraded from the prime rank which he ought to hold in human affairs. In the latter, the State as well as the man is degraded. Of both degradations striking instances occur in history, in politics, and in common life. One of them is drawn from an anecdote which is recorded concerning Louis XIV., who has been styled the grand monarch of France. This prince, who diffused around him so much dazzling splendor, and so little vivifying heat, was vitiated by that inverted manner of teaching and of thinking, which forms kings to be tyrants, without knowing or even suspecting that they are so. The oppression under which he held his subjects during the whole course of his long reign, proceeded chiefly from the principles and habits of his erroneous education. By these, he had been accustomed to consider his kingdom as his patrimony, and his power over his subjects as his rightful and undelegated inheritance, These sentiments were so deeply and strongly imprinted on his mind, that, when one of his ministers represented to him the miserable condition to which those subjects were reduced, and in the course of his representation frequently used the word L'Etat, the State; the king, though he felt the truth and approved the substance of all that was Chisholm, Executor, v. Georgia. 2 D. said, yet was shocked at the frequent repetition of the expression L'Etat ; and * complained of it as an indecency [ * 462 offered to his person and character. And, indeed, that kings should imagine themselves the final causes for which men were made, and societies were formed, and governments were insti. tuted, will cease to be a matter of wonder or surprise when we find that lawyers, and statesmen, and philosophers, have taught or favored principles which necessarily lead to the same conclusion. Another instance equally strong, but still more astonishing, is drawn from the British government, as described by Sir William Blackstone and his followers. As described by him and them, the British is a despotic government. It is a government without a people. In that government, as so described, the sovereignty is possessed by the parliament. In the parliament, therefore, the supreme and absolute authority is vested. In the parliament resides that incontrollable and despotic power which, in all governments, must reside somewhere. The constituent parts of the parliament are the king's majesty, the lords spiritual, the lords temporal, and the commons. The king and these three estates together form the great corporation or body politic of the kingdom. All these sentiments are found, the last expressions are found verbatim,in the commentaries upon the laws of England. The parliament form the great body politic of England! What, then, or where, are the people ? Nothing! Nowhere! They are not so much as even the “baseless fabric of a vision !" From legal contemplation they totally disappear! Am I not warranted in saying, that, if this is a just description, a government so, and justly so described, is a despotic government? Whether this description is or is not a just one, is a question of very different import.
In the United States, and in the several States which compose the Union, we go not so far, but still we go one step farther than we onght to go in this unnatural and inverted order of things. The States, rather than the people, for whose sakes the States exist, are frequently the objects which attract and arrest our principal attention. This, I believe, has produced much of the confusion and perplexity which have appeared in several proceedings and several publications on State politics, and on the politics, too, of the United States. Sentiments and expressions of this inaccurate kind prevail in our common, even in our convivial language. Is a toast asked? “ The United States," instead of the “ People of the United States," is the toast given. This is not politically correct. The toast is meant to pre
11 Bl. Com. 46-52, 147, 160-162.
21 Bl. Com. 153.
31 Bl. Com. 153.