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Chisholm, Executor, v. Georgia. 2 D. and a foreign State, and put them on the same footing as far as may be, yet ingenuity may say that the State here may sue, but cannot be sued; but that the foreign State may be sued but cannot sue. We may touch foreign sovereignties but not our own. But I conceive the reason of the thing, as well as the words of the constitution, tend to show that the federal judicial power extends to a suit brought by a foreign State, against any one of the United States. One design of the general government was for managing the great affairs of peace and war, and the general defence, which were impossible to be conducted with safety by the States separately. Incident to these powers, and for preventing controversies between foreign powers, or citizens from rising to extremities and to an appeal to the sword, a national tribunal was necessary, amicably, to decide them, and thus ward off such fatal public calamity. Thus States at home and their citizens, and foreign States and their citizens, are put together without * distinction upon the same footing, as far [ * 468 ] as may be, as to controversies between them. So also with respect to controversies between a State and citizens of another State at home, comparing all the clauses together the remedy is reci. procal; the claim to justice equal. As controversies between State and State, and between a State and citizens of another State might tend gradually to involve States in war and bloodshed, a disinterested civil tribunal was intended to be instituted to decide such controversies, and preserve peace and friendship. Further; if a State is entitled to justice in the federal court, against a citizen of another State, why not such citizen against the State, when the same language equally comprehends both? The rights of individuals and the justice due to them are as dear and precious as those of States. Indeed the latter are founded upon the former, and the great end and object of them must be to secure and support the rights of individuals, or else vain is government.

But still it may be insisted that this will reduce States to mere corporations, and take away all sovereignty. As to corporations, all States whatever are corporations or bodies politic. The only question is, what are their powers? As to individual States and the United States, the constitution marks the boundary of powers. Whatever power is deposited with the Union by the people for their own necessary security, is so far a curtailing of the power and prerogatives of States. This is, as it were, a self-evident proposition; at least it cannot be contested. Thus the power of declaring war, making peace, raising and supporting armies for public defence, levying duties, excises, and taxes, if necessary, with many other powers, are lodged in Congress; and are a most essential abridgement of

Chisholm, Executor, v. Georgia. 2 D. State sovereignty. Again, the restrictions upon States. “ No State shall enter into any treaty, alliance, or confederation, coin money, emit bills of credit, make any thing but gold and silver a tender in payment of debts, pass any law impairing the obligation of contracts;" these, with a number of others, are important restrictions of the power of States, and were thought necessary to maintain the Union, and to establish some fundamental uniform principles of public justice throughout the whole Union. So that I think no argument of force can be taken from the sovereignty of States. Where it has been abridged, it was thought necessary for the greater indispensable good of the whole. If the constitution is found inconvenient in practice in this or any other particular, it is well that a regular mode is pointed out for amendment. But while it remains, all offices, legislative, executive, and judical, both of the States and of the

Union, are bound by oath to support it. [ * 469 *One other objection has been suggested; that if a State

may be sued by a citizen of another State, then the United States may be sued by a citizen of any of the States, or, in other words, by any of their citizens. If this be a necessary consequence, it must be so. I doubt the consequence from the different wording of the different clauses, connected with other reasons. When speaking of the United States, the constitution says, “controversies to which the United States shall be a party," not controversies between the United States and any of their citizens. When speaking of States, it says, “controversies between two or more States, between a State and citizens of another State." As to reasons for citizens suing a different State which do not hold equally good for suing the United States, one may be, that as controversies between a State and citizens of another State might have a tendency to involve both States in contest, and perhaps in war, a common umpire to decide such controversies may have a tendency to prevent the mischief. That an object of this kind was had in view by the framers of the constitution, I have no doubt, when I consider the clashing interfering laws which were made in the neighboring States before the adoption of the constitution, and some affecting the property of citizens of another State in a very different manner from that of their own citizens. But I do not think it necessary to enter fully into the question, whether the United States are liable to be sued by an individual citizen, in order to decide the point before us. Upon the whole, I am of opinion that the constitution warrants a suit against a State by an individual citizen of another State.

A second question made in the case was, whether the parti. cular action of assumpsit could lie against a State. I think as.

Chisholm, Executor, v. Georgia. 2 D. sumpsit will lie, if any suit, provided a State is capable of contracting.

The third question respects the competency of service, which, I apprehend, is good and proper, the service being by summons and notifying the suit to the governor and the attorney-general: the governor, who is the supreme executive magistrate and representative of the State, who is bound by oath to defend the State, and by the constitution to give information to the legislature of all important matters which concern the interest of the State; the attorneygeneral, who is bound to defend the interest of the State in courts of law.

Jay, C. J. The question we are now to decide has been accurately stated, namely, is a State suable by individual citizens of another State ?

It is said that Georgia refuses to appear and answer to the plaintiff in this action, because she is a sovereign State, and therefore not liable to such actions. In order to ascertain the 'merits of this objection, let us inquire, 1st. In what sense [ * 470 ] Georgia is a sovereign State. 2d. Whether suability is incompatible with such sovereignty. 3d. Whether the constitution, to which Georgia is a party, authorizes such an action against her.

Suability and suable are words not in common use, but they concisely and correctly convey the idea annexed to them.

1st. In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in prior to the revolution, and to the political rights which emerged from the revolution. All the country now possessed by the United States was then a part of the dominions appertaining to the crown of Great Britain. Every acre of land in this country was then held mediately or immediately by grants from that crown. All the people of this country were then, subjects of the king of Great Britian, and owed allegiance to him; and all the civil authority then existing or exercised here, flowed from the head of the British empire. They were in strict sense fellow subjects, and in a variety of respects one people. When the revolution commenced, the patriots did not assert that only the same affinity and social connection subsisted between the people of the colonies which subsisted between the people of Gaul, Britain, and Spain, while Roman provinces, namely, only that affinity and social connection which result from the mere circumstance of being governed by the same prince; different ideas prevailed, and gave occasion to the congress of 1774 and 1775.

The revolution, or rather the declaration of independence, found

Chisholm, Executor, v. Georgia. 2 D.

the people already united for general purposes, and at the same time providing for their more domestic concerns by state conventions and other temporary arrangements. From the crown of Great Britain, the sovereignty of their country passed to the people of it; and it was then not an uncommon opinion that the unappropriated lands which belonged to that crown, passed not to the people of the colony or States within whose limits they were situated, but to the whole people; on whatever principles this opinion rested, it did not give way to the other, and thirteen sovereignties were considered as emerged from the principles of the revolution, combined with local convenience and considerations; the people nevertheless continued to consider themselves, in a national point of view, as one people; and they continued, without interruption, to manage their national concerns accordingly; afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States the basis of a general government. Experience disappointed the expectations they had formed from it; and then the people, in

their collective and national capacity, established the pre[*471 ] sent constitution. It is * remarkable that in establishing it,

the people exercised their own rights and their own proper sovereignty, and, conscious of the plenitude of it, they declared with becoming dignity, “ We, the people of the United States, do ordain and establish this constitution.” Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a constitution by which it was their will that the state governments should be bound, and to which the state constitutions should be made to conform. Every state constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the constitution of the United States is likewise a compact, made by the people of the United States to govern themselves as to general objects, in a certain manner. By this gseat compact, however, many prerogatives were transferred to the national government, such as those of making war and peace, contracting alliances, coining money, &c. &c.

If then it be true that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State, it may be useful to compare these sovereignties with those in Europe, that we may thence be enabled to judge, whether all the prerogatives which are allowed to the latter are so essential to the former. There is reason to suspect that some of the difficul. ties which embarrass the present question, arise from inattention to differences which subsist between them.

It will be sufficient to observe, briefly, that the sovereignties in

Chisholm, Executor, v. Georgia. 2 D. Europe, and particularly in England, exist on feudal principles. That system considers the prince as the sovereign, and the people as his subjects; it regards his person as the object of allegiance, and excludes the idea of his being on an equal footing with a subject, either in a court of justice or elsewhere. That system contemplates him as being the fountain of honor and authority; and from his grace and grant derives all franchises, immunities, and privileges; it is easy to perceive that such a sovereign could not be amenable to a court of justice, or subjected to judicial control and actual constraint. It was of necessity, therefore, that suability became incompatible with such sovereignty. Besides, the prince having all the executive powers, the judgment of the courts would, in fact, be only monitory, not mandatory to him, and a capacity to be advised, is a distinct thing from a capacity to be sued. The same feudal ideas run through all their jurisprudence, and constantly remind us of the distinction between the prince and the subject. No such ideas obtain here; at the revolution the sovereignty devolved on the people; and they are truly the sovereigns of the country, but they are sovereigns without subjects, unless the * African slaves [ * 472 ] among us may be so called, and have none to govern but themselves; the citizens of America are equal as fellow-citizens, and as joint-tenants in the sovereignty.

From the differences existing between feudal sovereignties and governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or state sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the prince, here it rests with the people; there, the sovereign actually administers the government, here, never in a single instance; our governors are the agents of the people, and, at most, stand in the same relation to their sovereign in which regents in Europe stand to their sovereigns. Their princes have personal powers, dignities, and preëminences, our rulers have none but official; nor do they partake in the sovereignty otherwise, or in any other capacity, than as private citizens.

2d. The second object of inquiry now presents itself, namely, whether suability is compatible with state sovereignty.

Suability, by whom? Not a subject, for in this country there are none; not an inferior, for all the citizens being as to civil rights perfectly equal, there is not, in that respect, one citizen inferior to another. It is agreed that one free citizen may sue another; the obvious dictates of justice and the purposes of society demanding it. It is agreed, that one free citizen may sue any number on whom

VOL. I.

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