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Chisholm, Executor, v. Georgia. 2 D. process can be conveniently executed ; nay, in certain cases one citizen may sue forty thousand; for where a corporation is sued all the members of it are actually sued, though not personally sued. In this city there are forty odd thousand free citizens, all of whom may be collectively sued by any individual citizen. In the State of Delaware there are fifty odd thousand free citizens, and what reason can be assigned why a free citizen who has demands against them should not prosecute them? Can the difference between forty odd thousand and fifty odd thousand make any distinction as to right? Is it not as easy, and as convenient to the public and parties, to serve a summons on the governor and attorney-general of Delaware, as on the mayor or other officers of the corporation of Philadelphia? Will it be said that the fifty odd thousand citizens in Delaware, being associated under a state government, stand in a rank so superior to the forty odd thousand of Philadelphia, associated under their charter, that although it may become the latter to meet an individual on an equal footing in a court of justice, yet that such a procedure would not comport with the dignity of the former ? In this land of equal

liberty, shall forty odd thousand in one place be compella1 * 473 ) ble to do justice, and yet fifty odd thousand in * another

place be privileged to do justice only as they may think proper ? Such objections would not correspond with the equal rights we claim, with the equality we profess to admire and maintain, and with that popular sovereignty in which every citizen partakes. Grant that the governor of Delaware holds an office of superior rank to the mayor of Philadelphia, they are both nevertheless the officers of the people; and however more exalted the one may be than the other, yet, in the opinion of those who dislike aristocracy, that circumstance cannot be a good reason for impeding the course of justice.

If there be any such incompatibility as is pretended, whence does it arise ? In what does it consist? There is at least one strong undeniable fact against this incompatibility, and that is this, any one State in the Union may sue another State in this court, that is, all the people of one State may sue all the people of another State. It is plain, then, that a State may be sued, and hence it plainly follows that suability and state sovereignty are not incompatible. As one State may sue another State in this court, it is plain that no degradation to a State is thought to accompany her appearance in this court. It is not, therefore, to an appearance in this court that the objection points. To what does it point? It points to an appearance at the suit of one or more citizens. But why it should be more incompatible that all the people of a State should be sued by

Chisholm, Executor, v. Georgia. 2 D.

one citizen, than by one hundred thousand, I cannot perceive, the process in both cases being alike, and the consequences of a judg. ment alike. Nor can I observe any greater inconveniences in the one case than in the other, except what may arise from the feelings of those who may regard a lesser number in an inferior light. But if any reliance be made on this inferiority, as an objection, at least one half of its force is done away by this fact, namely, that it is conceded that a State may appear in this court as plaintiff against a single citizen as defendant; and the truth is that the State of Georgia is at this moment prosecuting an action in this court against two citizens of South Carolina.1

The only remnant of objection therefore that remains is, that the State is not bound to appear and answer as a defendant at the suit of an individual; but why it is unreasonable that she should be so bound is hard to conjecture. That rule is said to be a bad one which does not work both ways; the citizens of Georgia are content with a right of suing citizens of other States, but are not content that citi. zens of other States should have a right to sue them.

Let us now proceed to inquire whether Georgia has not, by being a party to the national compact, consented to be suable by indivi. dual citizens of another State. This inquiry naturally * leads our attention, 1st. To the design of the constitu- [* 474 ] tion. 2d. To the letter and express declaration in it.

Prior to the date of the constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose insti. tution and organization the people of the other States had no partici. pation, and over whom they had not the least control. There was then no general court of appellate jurisdiction by whom the errors of State courts, affecting either the nation at large or the citizens of any other State, could be revised and corrected. Each State was obliged to acquiesce in the measure of justice which another State might yield to her or to her citizens; and that even in cases where State considerations were not always favorable to the most exact measure. There was danger that from this source animosities would in time result; and as the transition from animosities to hostilities was frequent in the history of independent States, a common tribunal for the termination of controversies became desirable, from motives both of justice and of policy.

Prior also to that period the United States had, by taking a place

i Georgia v. Brailsford et al. 2 D. 402.

Chisholm, Executor, v. Georgia. 2 D. among the nations of the earth, become amenable to the laws of nations, and it was their interest as well as their duty to provide that those laws should be respected and obeyed; in their national character and capacity the United States were responsible to foreign nations for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State courts, and particularly to the courts of delinquent States, became apparent. While all the States were bound to protect each, and the citizens of each, it was highly proper and reasonable that they should be in a capacity not only to cause justice to be done to each, and the citizens of each, but also to cause justice to be done by each, and the citizens of each ; and that, not by violence and force, but in a stable, sedate, and regular course of judi. cial procedure.

These were among the evils against which it was proper for the nation, that is the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.

Let us now turn to the constitution. The people therein declare that their design in establishing it comprehended six objects. 1st. To form a more perfect union. 2d. To establish justice. 3d. To insure domestic tranquillity. 4th. To provide for the common defence. 5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity. It would be

pleasing and useful to consider and trace the relations [ * 475 ] which each of these objects bears to the others; * and to

show that they collectively comprise every thing requisite, with the blessing of Divine Providence, to render a people prosperous and happy; on the present occasion such disquisitions would be unseasonable, because foreign to the subject immediately under consideration.

It may be asked, what is the precise sense and latitude in which the words, “ to establish justice," as here used, are to be understood ? The answer to this question will result from the provisions made in the constitution on this head. They are specified in the second section of the third article, where it is ordained that the judicial power of the United States shall extend to ten descriptions of cases, namely: 1st. To all cases arising under this constitution; because the meaning, construction, and operation of a compact ought always to be ascertained by all the parties, or by authority derived only from one of them. 2d. To all cases arising under the laws of the United States; because as such laws, constitutionally made, are obligatory on each State, the measure of obligation and obedience ought not Chisholm, Executor, v. Georgia. 2 D. to be decided and fixed by the party from whom they are due, but by a tribunal deriving authority from both the parties. 3d. To all cases arising under treaties made by their authority; because, as treaties are compacts made by, and obligatory on the whole nation, their operation ought not to be affected or regulated by the local laws or courts of a part of the nation. 4th. To all cases affecting ambassadors, or other public ministers and consuls; because, as these are officers of foreign nations, whom this nation are bound to protect and treat according to the laws of nations, cases affecting them ought only to be cognizable by national authority. 5th. To all cases of admiralty and maritime jurisdiction ; because, as the seas are the joint property of nations, whose right and privileges relative thereto are regulated by the law of nations and treaties, such cases necessarily belong to national jurisdiction. 6th. To controversies to which the United States shall be a party; because, in cases in which the whole people are interested it would not be equal or wise to let any one State decide and measure out the justice due to others. 7th. To controversies between two or more States; because domestic tranquillity requires that the contentions of States should be peaceably terminated by a common judicatory; and, because, in a free country justice ought not to depend on the will of either of the litigants. 8th. To controversies between a State and citizens of another State; because, in case a State (that is all the citizens of it) has demands against some citizens of another State, it is better that she should prosecute their demands in a national court, than in a court of the State to which those citizens belong ; the danger of irritation and criminations arising from apprehensions and * sus. [ * 476 picions of partiality being thereby obviated; because, in cases where some citizens of one State have demands against all the citizens of another State, the cause of liberty and the rights of men forbid that the latter should be the sole judges of the justice due to the latter; and true republican government requires that free and equal citizens should have free, fair, and equal justice. 9th. To controversies between citizens of the same State, claiming lands under grants of different States ; because, as the rights of the two States to grant the land are drawn into question, neither of the two States ought to decide the controversy. 10th. To controversies between a State or the citizens thereof and foreign States, citizens or subjects; because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on, national authority. Even this cursory view of the judicial powers of the United States leaves the mind strongly impressed with

Chisholm, Executor, v. Georgia. 2 D. the importance of them to the preservation of the tranquillity, the equal sovereignty, and the equal right of the people.

The question now before us renders it necessary to pay particular attention to that part of the second section which extends the judicial power to controversies between a State and citizens of another State.” It is contended that this ought to be construed to reach none of these controversies, excepting those in which a State may be plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.

This extension of power is remedial, because it is to settle controversies. It is, therefore, to be construed liberally. It is politic, wise, and good, that not only the controversies in which a State is plaintiff, but also those in which a State is defendant, should be settled; both cases, therefore, are within the reason of the remedy; and ought to be so adjudged, unless the obvious, plain, and literal sense of the words forbid it. If we attend to the words we find them to be express, positive, free from ambiguity, and without room for such implied expressions : “ The judicial power of the United States shall extend to controversies between a State and citizens of another State." If the constitution really meant to extend these powers only to those controversies in which a State might be plaintiff, to the exclusion of those in which citizens had demands against a State, it is inconceivable that it should have attempted to convey that meaning in words not only so incompetent, but also repugnant to it; if it meant to exclude a certain class of these controversies, why were

they not expressly excepted; on the contrary, not even an [ * 477 ) intimation of such intention appears in * any part of the

constitution. It cannot be pretended that where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no controversy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words of the constitution. What is it to the cause of justice, and how can it affect the definition of the word controversy, whether the demands which cause the dispute are made by a State against citizens of another State, or by the latter against the former? When power is thus extended to a controversy, it necessarily, as to all judicial purposes, is also extended to those between whom it subsists.

The exception contended for would contradict and do violence to the great and leading principles of a free and equal national government, one of the great objects of which is to insure justice to all. To the few against the many, as well as to the many against the few. It would be strange, indeed, that the joint and equal sovereigns

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