Chisholm, Executor, v. Georgia. 2 D. sent to view the first great object in the Union. It presents only the second. It presents only the artificial person, instead of the natural persons, who spoke it into existence. A State, [* 463] I* cheerfully admit, is the noblest work of man. But man himself, free and honest, is, I speak as to this world, the noblest work of God. Concerning the prerogative of kings, and concerning the sovereignty of States, much has been said and written; but little has been said and written concerning a subject much more dignified and important, the majesty of the people. The mode of expression which I would substitute in the place of that generally used, is not only politically, but also (for between true liberty and true taste there is a close alliance) classically more correct. On the mention of Athens a thousand refined and endearing associations rush at once into the memory of the scholar, the philosopher, and the patriot. When Homer, one of the most correct, as well as the oldest of human authorities, enumerates the other nations of Greece, whose forces acted at the siege of Troy, he arranges them under the names of their different kings or princes. But when he comes to the Athenians, he distinguishes them by the peculiar appellation of the people 1 of Athens. The well-known address used by Demosthenes, when he harangued and animated his assembled countrymen, was, "O men of Athens." With the strictest propriety, therefore, classical and political, our national scene opens with the most magnificent object which the nation could present. "The people of the United States" are the first personages introduced. Who were those people? They were the citizens of thirteen States, each of which had a separate constitution and government, and all of which were connected together by articles of confederation. To the purposes of public strength and felicity that confederacy was totally inadequate. A requisition on the several States terminated its legislative authority; executive or judicial authority it had none. In order, therefore, to form a more perfect union, to establish justice, to insure domestic tranquillity, to provide for common defence, and to secure the blessings of liberty, those people, among whom were the people of Georgia, ordained and established the present constitution. By that constitution legislative power is vested, executive power is vested, judicial power is vested. The question now opens fairly to our view, could the people of those States, among whom were those of Georgia, bind those States, 1 II. 1. 2, v. 547, Añμos, Pol. 12, one of the words, of which democracy is compounded. Chisholm, Executor, v. Georgia. 2 D. and Georgia among the others, by the legislative, executive, and judicial power so vested? If the principles on which I have founded myself are just and true, this question must, unavoidably, receive an affirmative answer. If those States were the work of those people, those people, and that I may apply the case closely, the people of Georgia, in particular, could alter, as they pleased, [ 464 ] their former work; to any given degree, they could diminish as well as enlarge it. Any or all of the former State powers they could extinguish or transfer. The inference which necessarily results is, that the constitution ordained and established by those people, and still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States and over the State of Georgia in particular. The next question under this head, is, Has the constitution done so? Did those people mean to exercise this their undoubted power? These questions may be resolved, either by fair and conclusive deductions, or by direct and explicit declarations. In order, ultimately to discover whether the people of the United States intended to bind those States by the judicial power vested by the national constitution, a previous inquiry will naturally be, did those people intend to bind those States by the legislative power vested by that constitution? The articles of confederation, it is well known, did not operate upon individual citizens; but operated only upon States. This defect was remedied by the national constitution, which, as all allow, has an operation on individual citizens. But if an opinion, which some seem to entertain, be just, the defect remedied on one side was balanced by a defect introduced on the other; for they seem to think that the present constitution operates only on individual citizens, and not on States. This opinion, however, appears to be altogether unfounded. When certain laws of the States are declared to be "subject to the revision and control of the Congress," 1 it cannot, surely, be contended that the legislative power of the national government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances to which the facts will be found to apply. We may then infer that the people of the United States intended to bind the several States by the legislative power of the national government. In order to make the discovery, at which we ultimately aim, a second previous inquiry will naturally be, Did the people of the 1 Art. 1. s. 10. Chisholm, Executor, v. Georgia. 2 D. United States intend to bind the several States by the executive power of the national government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Ever since the time of Bracton, his maxim, I believe, has been deemed a good one" Supervacuum esset leges condere, nisi esset qui leges tueretur."1 "It would be superfluous to make laws, unless those laws, when made, were to be enforced." When the laws are plain, and the application of them is uncontroverted, they are enforced [* 465] immediately by the executive authority of government. When the application of them is doubtful or intricate, the interposition of the judicial authority becomes necessary. The same principle therefore, which directed us from the first to the second step, will direct us from the second to the third and last step of our deduction. Fair and conclusive deduction, then, evinces that the people of the United States did vest this court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects and the general texture of the constitution of the United States. One of its declared objects is, to form a union more perfect, than, before that time, had been formed. Before that time the Union possessed legislative, but unenforced legislative power over the States. Nothing could be more natural than to intend that this legislative power should be enforced by powers executive and judicial. Another declared object is "to establish justice." This points, in a particular manner, to the judicial authority. And when we view this object in conjunction with the declaration, "that no State shall pass a law impairing the obligation of contracts," we shall probably think that this object points, in a particular manner, to the jurisdiction of the court over the several States. What good purpose could this constitutional provision secure if a State might pass a law impairing the obligation of its own contracts, and be amenable, for such a violation of right, to no controlling judiciary power? We have seen, that on the principles of general jurisprudence, a State, for the breach of a contract, may be liable for damages. A third declared object is, "to insure domestic tranquillity." This tranquillity is most likely to be disturbed by controversies between States. These consequences will be most peaceably and effectually decided by the establishment and by the exercise of a superintending judicial authority. By such exercise and establishment, the law of nations the rule between contending States-will be enforced among the several States in the same manner as municipal law. 1 Brac. 107 1 Chisholm, Executor, v. Georgia. 2 D. Whoever considers, in a combined and comprehensive view, the general texture of the constitution, will be satisfied that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for such purposes, a national government complete in all its parts, with powers legislative, executive and judiciary; and in all those powers extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person, natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? When so many trains of deduction, coming from different quarters, [* 466 ] converge and unite at last in the same point, we may safely conclude, as the legitimate result of this constitution, that the State of Georgia is amenable to the jurisdiction of this court. But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the constitution; it is confirmed, beyond all doubt, by the direct and explicit declaration of the constitution itself. "The judicial power of the United States shall extend to controversies between two States."1 Two States are supposed to have a controversy between them; this controversy is supposed to be brought before those vested with the judicial power of the United States; can the most consummate degree of professional ingenuity devise a mode by which this "controversy between two States" can be brought before a court of law, and yet neither of those States be a defendant? "The judicial power of the United States shall extend to controversies between a State and citizens of another State." Could the strictest legal language; could even that language which is peculiarly appropriated to an art, deemed by a great master to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language describe with more precise accuracy, the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by justice in her equal scales; on the former, solely, her attention is fixed; to the latter she is, as she is painted, blind. I have now tried this question by all the touchstones to which I proposed to apply it. I have examined it by the principles of general jurisprudence; by the laws and practice of States and kingdoms; and by the constitution of the United States. From all, the combined inference is, that the action lies. 1 Art. 3, s. 2. Chisholm, Executor, v. Georgia. 2 D. CUSHING, J. The grand and principal question, in this case, is whether a State can, by the federal constitution, be sued by an individual citizen of another State. The point turns not upon the law or practice of England, although perhaps it may be in some measure elucidated thereby, nor upon the law of any other country whatever; but upon the constitution established by the people of the United States; and particularly upon the extent of powers given to the federal judiciary in the 2d section of the 3d article of the constitution. It is declared that "the judicial power shall extend to all cases in law and equity arising under the constitution, the laws of the United States, or treaties made or which shall be made under their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United [467] States shall be a party; to controversies, between two or more States and citizens of another State; between citizens of different States; between citizens of the same State claiming lands under grants of different States; and between a State and citizens thereof and foreign States, citizens or subjects." The judicial power, then, is expressly extended to "controversies between a State and citizens of another State." When a citizen makes a demand against a State of which he is not a citizen, it is as really a controversy between a State and a citizen of another State, as if such State made a demand against such citizen. The case then seems clearly to fall within the letter of the constitution. It may be suggested that it could not be intended to subject a State to be a defendant, because it would affect the sovereignty of States. If that be the case, what shall we do with the immediate preceding clause: " controversies between two or more States," where a State must of necessity be defendant? If it was not the intent, in the very next clause also, that a State might be made defendant, why was it so expressed as naturally to lead to and comprehend that idea? Why was not an exception made if one was intended. Again, what are we to do with the last clause of the section of judicial powers, namely, "controversies between a State or the citizens thereof, and foreign States or citizens?" Here, again, States must be suable or liable to be made defendants by this clause, which has a similar mode of language with the two other clauses I have remarked upon. For if the judicial power extends to a controversy between one of the United States and a foreign State, as the clause expresses, one of them must be defendant. And then what becomes of the sovereignty of States, as far as suing affects it? But although the words appear reciprocally to affect the State here |