« ZurückWeiter »
eral arm uplifted. Scenes like these are too full of horror not to agitate, not to rack, the imagination."
The argument seems to have been a very full and able decision of the question. But in the light of subsequent history it its curi- . ous to read the following from so great an authority as Mr. Randolph was on this subject, an active and not insignificant member of the constitutional convention. He says: "What is to be done if, in consequence of a bill of attainder or an ex post facto law, the estate of a citizen shall be confiscated and deposited in the treasury of a state? What if a state should adulterate or coin money below the congressional standard, emit bills of credit or enact unconstitutional tenders for the purpose of extinguishing its own debt? What if a state should impair her own contract? These evils, and others which might be enumerated like them, cannot be corrected without a suit against the state.”
It took time and John Marshall to teach even those who helped frame the constitution its meaning and the manner in which it could be made to operate in many
instances. The first opinion in the case is by Mr. Justice Iredell. Arguing at length from the principles and authorities of the common law as to the right to sue thè sovereign in cases of this class, he is of opinion that assumpsit will not lie against the state by an individual, at least without legislation by congress providing the manner of proceeding, holding that the constitution conferring jurisdiction was inoperative until such legislation was had; and that the judiciary act provided that the United States court should have power to issue certain writs named, and all other writs not specially provided for by statute which may be necessary for the exercise of their respective jurisdictions and agreeable to the principles and usages of law, did not cover this case, there being no law authorizing such proceedings. But Justice Iredell leaves it doubtful as to what would have been his opinion even if congress had so legislated.
Mr. Justice Blair and Cushing paying but little attention either to the common law or the law of nations, and relying almost entirely upon the language and purpose of the constitution, favor the jurisdiction, as do Mr. Justice Wilson and Chief Justice Jay.
Mr. Justice Wilson was, I suppose, the most scholary man on the bench at the time. His opinion indicates that he had little
sympathy with the claims of the sovereign rights of the state in this case. He takes up the question as being one involving the just rights of the people as against the assumed pre-eminence claimed by the governments which they have formed. One of the parties,” he says, “is a state; certainly respectable, claiming to be sovereign.” The question to be determined is whether this state so respectable, and whose claims soar so high, is amenable to the jurisdiction of the supreme court of the United States. The question may ultimately resolve itself into one no less radical than this, do the people of the United States form a nation?
He proposed to examine the case, first by the principles of general jurisprudence; second, by the laws and practice of particular states and kingdoms - from the law of nations little or no illustration of this subject can be expected. By that law the several states and governments spread over our globe are considered as forming a society, not a nation; third, by the constitution itself. He introduces what he has to say under the first head — general jurisprudence — by the following quotations from Dr. Reid, the Scotch metaphysician:
“The language of philosophers with regard to the original faculties of the mind is so adapted to the prevailing system that it cannot fit any other; like a coat that fits a man for whom it was made and shows him to advantage, which yet will fit very awkward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations without using new words and phrases or giving a different meaning to those that are received."
And so Mr. Justice Wilson gives notice that it is his intention to use the words “sovereigns” and “states” in a different sense from what had been usual.
"To the constitution of the United States the term “sovereign' is totally unknown. There is but one place where it could have been used with propriety. But even in that place it would not perhaps have comported with the delicacy of those who ordained and established that constitution. They might have announced themselves sovereign people of the United States. But serenely conscious of the fact they avoided the ostentatious declaration.
"In an instrument well drawn, as in a poem well composed, silence is sometimes most expressive."
He shows that while states and governments were made for man, “yet his creatures and servants have first deceived, next villified, and at last oppressed, their master and maker.”
“Let the state be considered as subordinate to the people; but let everything else be subordinate to the state.
“In practice, and even in the science of politics, there has been an inconsiderate or interested disposition to sacrifice the end to the means — the state has claimed precedence of the people, and so the government has claimed precedence of the state, and to this perversion in the second degree many volumes of confusion concerning sovereignty owe their existence — the ministers or magistrates coming to be considered sovereigns of the state.
“By a state I mean a complete body of free persons, united together for their common benefit to enjoy peaceably what is their own and to do justice to others.
“Such being a state ought it not to do justice and fulfill its engagements? Upon what general principles of right, when summoned, can it refuse to answer the demands of its creators by declaring, "I am a sovereign state?'"
Who or what is a sovereign? The term “sovereign," in one sense, has for its correlative, subject; but under the constitution there are citizens, no subjects.
In another sense a state which governs itself without a dependence upon another, is sovereign, but as to the purposes of the union, Georgia is not sovereign. If the judicial decision of this case forms one of these purposes, the allegation that Georgia is a sover. eign state is unsupported by the fact (and that it does form such purpose is to be shown under the third head).
Then there is a sovereign in the feudal sense, but the State of Georgia is not such. “The sovereign, when traced to his source, must be found in the man.”
Under the second head, practice of particular states and kingdoms, the opinion refers to the fact that in Greece whole nations defended their rights before crowded tribunals — that the son of Christopher Columbus, having in vain claimed from the king rights which descended to him from his father, finally commenced suit against Ferdinand, and was sustained by the court.
That in England, until the time of Edward the First, the king might have been sued as a common person, the form of the process being in the imperative, “Command Henry, King of England,"
etc. Other instances, showing the better practice to be in favor of the right to sue the king or sovereign, are given.
Coming then to the consideration of the constitution the subject is considered in answer to two questions: First, could the constitution invest jurisdiction over the State of Georgia ? Second, has it vested such jurisdiction in this court ?
In almost every nation which has been denominated free the state has assumed supercillious pre-eminence above the people who have formed it; hence the baughty notions of state independence, state sovereignty and state supremacy. In despotic governments the government has assumed in a similar manner upon the state and the people; hence all arbitrary doctrines and pretenses 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. Instances of this are found where Louis XIV claimed that he was the state. And in the British government, as described by Blackstone and his followers, in that government, as so described, the sovereignty is possessed by parliament - the people are nothing. (Even at this day Mr. Justice Wilson questioned the justice of such description of the government of Great Britain.)
“But even in the United States we go too far in that direction; the states, rather than the people, attract and arrest attention. • 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 present to view, first, great object of the union. sents only the second — the artificial person, instead of the natural person, who spoke it into existence.'»
Concerning the prerogative of kings, the sovereignty of states, much has been said and written - little concerning the subject, much more dignified and important, the majesty of the people. Both politically and classically it is more correct to speak of the people. 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 seige of Troy, he arranges them under the names of their different kings and princes; but when he comes to the Athenians he distinguishes them by the peculiar appellation
of the people of Athens. The address used by Demosthenes when he harrangued and animated his assembled country was: “O! Men of Athens.” With 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.
To form a more perfect union, to establish justice, etc., those people, among whom were the people of Georgia, ordained and established the constitution.
By that constitution, legislative, executive and judicial powers are vested. Could those people, among whom were the people of Georgia, bind the states by the power so vested? The states were the work of the people; the people could alter their former work; any or all of the former state powers they could extinguish or transfer. The people of Georgia could vest jurisdiction or judicial power over the state. Has the constitution done so? Did those people mean to exercise this power? The legislative power, under the articles of confederation, acted upon the states but not upon the individual citizen. It is shown from the language of the constitution that the legislative power of the national government was intended to operate both upon the individual citizen and upon the several states; that it was the intention to bind the several states by the executive power -- certainly the legislative power should be enforced by the executive and the judicial.
And, finally, the language of the constitution itself is sufficiently direct and explicit.
I shall not attempt to give a sketch of the argument of Chief Justice Jay. Without any particular display of learning he argues from the condition of the states before the adoption of the constitution, from the purpose and object of that instrument, as well as from its language, that the jurisdiction must be held to exist.
In answer to the question that suability is not compatible with state sovereignty, he seems to endeavor to convince that the dig. nity. of the state will not suffer. The suit is not by a subject, for there are none; as to civil rights, one citizen is not inferior to another; one may sue any number; one may sue forty thousand, for in a suit against the corporation of Philadelphia, all the members of it are actually sued. Why not, in the same manner, the fifty