ACTION OF THE STATES. 263 who wish the change are desirous of repeating the application (i. e., already made in the Virginia amendments proposed by the ratifying convention of 1788), while those who wish it not are indifferent on the subject, supposing that Congress will not propose a change which would take from them a power so necessary for the accomplishment of those objects which are confided to their care. Letter to Washington, from Orange, Va., December 5, 1789; Works of Madison, I, 497. Madison on the loss of the amendments in Virginia: "On some accounts, this event is no doubt to be regretted, but it will do no injury to the General Government. On the contrary, it will have the effect with many of turning their distrust towards their own Legislature." Madison to Washington, Georgetown, January 4, 1790; 2 Messages and Papers of the President's, I, 76. The twelve amendments submitted to the State Legislatures were ratified, rejected, or not acted upon by them as follows: New Jersey, November 20, 1789, ratified all except No. 2. Maryland, December 19, 1789, ratified Nos. 1, 2, 3, 9, 12; rejected Nos. 4, 5, 6, 7, 8, 10, 11. North Carolina, December 22, 1789, ratified all the amendments. South Carolina, January 19, 1790, ratified all. New Hampshire, January 25, 1790, ratified all except No. 2. Delaware, January 28, 1790, ratified all except No. 1. Pennsylvania, March 10, 1790, ratified all except No. 1, and ratified No. 1 September 26, 1791. New York, March 27, 1790, ratified all. Rhode Island, June 15, 1790, ratified all except No. 11. Vermont, November 3, 1791, ratified all. Virginia, from October 25 to December 15, inclusive, 1791, ratified them all. Massachusetts, Connecticut and Georgia, so far as the record at the Department of State shows, did not act on them. Thus the first two were rejected by the action of New Jersey, New Hampshire, Delaware, and by the non-action of Massachusetts, Connecticut and Georgia. For the official notices of the action by the State Legislatures, see Documentary History, II, Washington, Department of State: 1895, pp. 325-390. The ratifications are given in the Journals of the House (1st Cong., 2nd Sess.), and of the Senate. CHAPTER VII. THE ELEVENTH AND TWELFTH AMENDMENTS. When the Constitution was completed and published for the consideration of the country, a lawyer, familiar with American history and critically analyzing the new plan, would undoubtedly have pronounced the judiciary its most novel feature. The cumbersome device attempted by the Articles of Confederation as a substitute for a judiciary had failed. On no subject were the framers of the Constitution more at harmony than the necessity of providing a national court of last resort. In forming it, they had to proceed without experience and almost without precedent. Their own interpretation of the necessities of the situation was their chief guide. They did not organize a judicial department expressly for the purpose of interpreting the Constitution. It was to be a court of last resort in law and equity. In settling whatever business might come before it, the court would determine the meaning of laws and thus, of course, interpret the Constitution. Its primary function would be to hear and determine suits between parties, whether individuals, or corporations, private or public,—and its jurisdiction was made comprehensive. The Convention, at best, could only vest the judicial power; outline its jurisdiction; assure its organization and independence, and leave the details of whatever judicial system might be thought best to be worked out by the wisdom of Congress. Thus it followed that our national judiciary was organized by that great law of 1789, known as the Judiciary Act, of which Ellsworth was the chief author, and with which THE JUDICIARY ARTICLE. 265 the name of William Samuel Johnson, also a member of the Federal Convention, is forever associated. As most of the framers of the Constitution were lawyers, and several of them possessed legal minds of the highest order, it was to be expected that the article on the judiciary would receive most critical attention and that, at last, it would leave their hands in as perfect form as men, familiar with political theories and grounded in legal practice, could suggest. A constitution of government is a practical device for carrying on public business. A person reading the Constitution of the United States and depending for his knowledge of our institutions upon its apportionment of political powers would be unable to discover, in the four brief paragraphs on the judiciary, more than a hint of the meaning of the plain language which vests "the judicial power of the United States." Gouverneur Morris, who wrote the Constitution in the form in which it was signed, has left us an interesting letter in which he refers to the language of the article on the judiciary. "That instrument," says he, speaking of the Constitution as a whole, "was written by the fingers which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which, expressing my own notions, would not alarm others, nor shock their self-love; and to the best of my recollection, this was the only part which passed without cavil."1 The general unanimity with which the judiciary article 1 Spark's Morris, III, 323. Morris to Timothy Pickering, December 22, 1814. 266 STATE SOVEREIGNTY. finally passed should not lead us to believe that it was given, at the time, but one interpretation. For instance, the article declares that the jurisdiction of the national courts shall extend to all controversies "between a State and citizens of another State," but it does not declare that it extends to cases between a citizen of a State and another State. That some feared that this last interpretation of the power of the courts might be claimed for those of the United States, is clear from the speeches of George Mason in the Virginia convention,1 and nowhere clearer than in Marshall's answer to Mason on this point. "With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentlemen will think that a State will be called at the bar of a federal court. Is there no such case at present? Are there not many cases in which the Legislature of Virginia is a party, and yet the State is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a State cannot be defendant-if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular State, is it to be presumed that, on application to its Legislature, he will not obtain satisfaction? But how could a State recover any claim from a citizen of 1 See pp. 118-121, ante. SUABILITY OF A STATE. 267 another State, without the establishment of these tribunals ?""1 That apprehensions, such as Marshall sought to allay, extended to New York, and to other parts of the Union, is clear from Hamilton's elaboration of Marshall's theory of the judiciary. "I shall take occasion to mention here," he writes in the Federalist, "a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the Federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation. It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its own consent. This is the general sense, and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of State sovereignty were discussed in considering the article on taxation,2 and need not be repeated here. A recurrence to the principles there established will satisfy us, that there is no color to pretend that the State governments would, by the adoption of that plan, be divested of the privilege of paying their own debts in their own way, free from constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no preten 1 Elliot, III, 555. 2 The Federalist, No. XXXII. |