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Chisholm, Executor, v. Georgia. 2 D. of this country should, in the very constitution by which they professed to establish justice, so far deviate from the plain path of equality and impartiality, as to give to the collective citizens of one State a right of suing individual citizens of another State, and yet deny to those citizens a right of suing them. We find the same general and comprehensive manner of expressing the same ideas in a subsequent clause, in which the constitution ordains that “in all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the supreme court shall have original jurisdiction.” Did it mean here party plaintiff? If that only was meant, it would have been easy to have found words to express it. ' Words are to be understood in their ordinary and common acceptation, and the word party being in common usage applicable both to plaintiff and defendant, we cannot limit it to one of them in the present case. We find the legislature of the United States ex. pressing themselves in the like general and comprehensive manner; they speak, in the thirteenth section of the judicial act, of controversies where a State is a party, and as they do not impliedly or expressly apply that term to either of the litigants in particular, we are to understand them as speaking of both. In the same section they distinguish the cases where ambassadors are plaintiffs, from those in which ambassadors are defendants, and make different provisions respecting those cases; and it is not unnatural to suppose that they would, in like manner, have distinguished between cases where a State was plaintiff and where a State was defendant, if they had intended to make any difference between them, or if they had apprehended that the constitution had made any difference between them.

*I perceive, and therefore candor urges me to mention, a [ * 478 ] circumstance, which seems to favor the opposite side of the question. It is this. The same section of the constitution which extends the judicial power to controversies “ between a State and the citizens of another State," does also extend that power to controver. sies to which the United States are a party. Now it may be said, if the word party comprehends both plaintiff and defendant, it follows that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to ine to be fair reasoning; but the same principles of candor which urge me to mention this objection, also urge me to suggest an important dif. ference between the two cases. It is this. In all cases of actions against States or individual citizens the national courts are supported, in all their legal and constitutional proceedings and judgments, by the arm of the executive power of the United States ; but, in cases of actions against the United States, there is no power which

Chisholm, Executor, v. Georgia. 2 D. the courts can call to their aid. From this distinction important conclusions are deducible, and they place the case of a State, and the case of the United States, in very different points of view.

I wish the state of society was so far improved, and the science of government advanced to such a degree of perfection, as that the whole nation could, in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is or is not now the case ought not to be thus collaterally and incidentally decided ; I leave it a question.

As this opinion, though deliberately formed, has been hastily reduced to writing between the intervals of the daily adjournments, and while my mind was occupied and wearied by the business of the day, I fear it is less concise and connected than it might other. wise have been. I have made no references to cases, because I know of none that are not distinguishable from this case; nor does it appear to me necessary to show that the sentiments of the best writers on government and the rights of men harmonize with the principles which direct my judgment on the present question. The acts of the former congresses, and the acts of many of the state conventions, are replete with similar ideas; and to the honor of the United States, it may be observed, that in no other country are subjects of this kind better, if so well understood. The attention and attachment of the constitution to the equal rights of the people are discernible in almost every sentence of it; and it is to be regretted that the provision in it which we have been considering, has not in every instance received the approbation and acquiescence which it merits.

Georgia has, in strong language, advocated the cause of [*479 ] republican equality, and there is reason to * hope that the

people of that State will yet perceive that it would not have been consistent with that equality, to have exempted the body of her citizens from that suability which they are at this moment exercising against citizens of another State.

For my own part, I am convinced that the sense in which I understand and have explained the words 6 controversies between States and citizens of another State,” is the true sense. The extension of the judiciary power of the United States to such controversies, appears to me to be wise, because it is honest, and because it is use. ful. It is honest, because it provides for doing justice without respect of persons, and by securing individual citizens as well as States, in their respective rights, performs the promise which every free government makes to every free citizen, of equal justice and protection. It is useful, because it is honest; because it leaves not even the most obscure and friendless citizen without means of obtaining justice Chisholm, Executor, v. Georgia. 2 D. from a neighboring State ; because it obviates occasions of quarrels between States on account of the claims of their respective citizens; because it recognizes and strongly rests on this great moral truth, that justice is the same whether due from one man or a million, or from a million to one man; because it teaches and greatly appreci ates the value of our free republican national government, which places all our citizens on an equal footing, and enables each and every of them to obtain justice without any danger of being overborne by the weight and number of their opponents; and because it brings into action, and enforces this great and glorious principle, that the people are the sovereign of this country, and consequently that fellow-citizens and joint sovereigns cannot be degraded by appearing with each other in their own courts to have their controversies determined. The people have reason to prize and rejoice in such valuable privileges; and they ought not to forget, that nothing but the free course of constitutional law and government can insure the continuance and enjoyment of them.

For the reasons before given, I am clearly of opinion that a State is suable by citizens of another State; but lest I should be understood in a latitude beyond my meaning, I think it necessary to subjoin this caution, namely, That such suability may nevertheless not extend to all the demands, and to every kind of action; there may be exceptions. For instance, I am far from being prepared to say that an individual may sue a State on bills of credit issued before the constitution was established, and which were issued and received on the faith of the State, and at a time when no ideas or expectations of judicial interposition were entertained or contemplated.

The following order was made:

BY THE Court. It is ordered, that the plaintiff in this [ * 480 ] cause do file his declaration on or before the first day of March next.

Ordered, that certified copies of the said declaration be served on the governor and attorney-general of the State of Georgia, on or before the first day of June next.

Ordered, that unless the said State shall either in due form appear, or show cause to the contrary in this court, by the first day of next term, judgment by default shall be entered against the said State.

P. 110; 3 P. 461; 5 P. 284; 11 P. 257 ; 12 P. 755; 5 H. 441. 1 In February term, 1794, judgment was rendered for the plaintiff, and a writ of inquiry awarded. The writ however, was not sued out and executed, so that this cause, and all the other suits against States, were swept at once from the records of the court, by the amendment to the federal constitution, agreeably to the unanimous determination of the judges, in Hollingsworth et al. v. Virginia, argued at February term, 1798.

August Term, 1793. 2 D.


The court being met, a commission appointing William Paterson one of the justices, bearing date the 4th of March, 1793, was read; and he was qualified according to law.'

1 Judge Paterson's appointment was in the room of Mr. Justice Johnson, who had resigned.

The malignant fever which, during this year, raged in the city of Philadelphia, dispersed the great body of its inhabitants, and proved fatal to thousands ; interrupted, likewise, the business of the courts; and I cannot trace that any important cause was agitated in the present term.





On the meeting of the court, a commission was read, dated the 28th of January, 1794, appointing William Bradford, Esq., Attorney-General of the United States.1

The State of GEORGIA V. BRAILSFORD et al.

3 D. 1.

The act of the State of Georgia did not confiscate, but only sequestered British debts, and

the right to recover them revived at the peace. It is the province of the court to decide the law, and of the jury to decide the facts.

This cause was now tried by a special jury, upon an amicable issue, to ascertain whether the debt due from Spalding, and the right of action to recover it, belonged to the State of Georgia, or to the original creditors, under all the circumstances which are set forth in the pleadings and arguments on the equity side of the court.”

For the plaintiff, Ingersoll and Dallas.

For the defendant, the Attorney-General, E. Tilghman, and Lewis.

* The argument having continued for four days, the chief [*3] justice delivered the following charge on the 7th of February.

Jay, C. J.

This cause has been regarded as of great importance,

'Mr. Bradford was appointed in the room of Edmund Randolph, Esq., who had accepted the office of Secretary of State.

2 S. C. 2 D. 402, 415.

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