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the State of Georgia is amenable to the jurisdiction of this Court."

But it might be said that the language of the Constitution did not suffer that a State should be made a party defendant in the Court when the plaintiff was an individual. Both Marshall and Hamilton had argued that it did not. "But in my opinion," continued Wilson, as if replying to both, "this doctrine rests, not upon the legitimate result of fair and conclusive deduction from the Constitution; but it is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself." The Constitution provides that "the judicial power of the United States shall extend to controversies between two States." Two States are supposed to have a controversy between them; this controversy is supposed to be brought before those vested with the judicial power of the United States; can the most consummate degree of professional ingenuity devise a mode by which this "controversy between two States" can be brought before a court of law, and yet neither of those be a defendant? "The judicial power of the United States shall extend to controversies between a State and citizens of another State." Could the strictest legal language, could even that language which is peculiarly appropriated to an act, deemed by a great master to be one of the most honorable, laudable, and profitable things in our law; could this strict and appropriated language describe with more precise accuracy the cause now depending before the tribunal? Causes, and not parties to causes, are weighed by Justice in her equal scales; on the former, solely, her attention is fixed; to the latter she is, as she is painted, blind." From all these inferences, Wilson decided that the State

1 Chisholm, Executor, vs. Georgia, 1793. 2 Dallas, 419.

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CHIEF-JUSTICE JAY'S OPINION.

was suable and was amenable to the jurisdiction of the Court.

He was supported in his view by the Chief-Justice, John Jay, who, in the most elaborate, and most important of his decisions, after tracing the history of the country since the outbreak of the Revolution, gave a liberal construction to the Constitution. It was to settle controversies, because one of its objects was domestic tranquillity, and another, to promote the general welfare. With Wilson, he agreed that, as a controversy, the case fell within the exact language of the Constitution. But he went further than did his associate. "I perceive,” said he, "and therefore candor urges me to mention, a 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 controversies 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 me to be fair reasoning; but the same principles of candor which urge me to mention this objection, also urge me to suggest an important difference 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 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."

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For these reasons Jay was of opinion that a State is suable by citizens of another State, but he was not prepared to say that such action lay where an individual sued a State on a bill of credit issued before the Constitution was adopted.1

But all this new doctrine was not suffered to pass without protest, and dissent. Justice Iredell, in one of the most famous of opinions, controverted Wilson and Jay, point by point, and gave legal expression to doctrines destined, in less than three years, to become the acknowledged creed of a great political party. More than this, it led to the amendment of the Constitution itself. He began by saying, that if the action could be brought against a State, it must be in virtue of the Constitution, and of the Judiciary Act of 1789. By the Constitution, the judicial power of the United States extends to all cases in law and equity arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority; to all cases affecting ambassadors or other public ministers and consuls; to all cases of admiralty and maritime jurisdiction; to controversies to which the United States shall be a party; to controversies between two or more States, between a State and citizens of another State, between citizens of different States, between citizens of the same State claiming lands under grants of different States and between a State and the citizens thereof and foreign States, citizens or subjects. The cases provided for in the Constitution in which a State is a party are of three classes: first, controversies between two or more States; second, controversies between a State and citizens of another State; and third, controversies between a State and foreign

1 Chisholm, Executor, vs. Georgia, 2 Dallas, 419. (Decided in

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IREDELL'S OPINION.

States, citizens or subjects. In all cases in which a State is a party, the Supreme Court has original jurisdiction.

The thirteenth section of the judiciary act of 1789, provided that "the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party except between a State and its citizens and except also between a State and citizens of other States or aliens, in which latter case it shall have original but not exclusive jurisdiction; and shall have exclusively all jurisdiction of suits or proceedings against ambassadors, or other public ministers or their domestics or domestic servants as a court of law can have or exercise consistently with the law of nations; and original but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers or in which a consul or a vice-consul shall be a party." The Supreme Court has therefore exclusive jurisdiction in every controversy of a civil nature between two or more States, between a State and a foreign State; and where a suit or proceeding is depending against ambassadors, other public ministers or their domestics or domestic servants. The Court has original but not exclusive jurisdiction between a State and citizens of other States; between a State and foreign citizens or subjects; where a suit is brought by ambassadors or other public ministers and where a consul or vice-consul is a party.

The case pending before the Court, therefore, came within the description of a suit against a State, brought by a citizen of another State. And first, Justice Iredell distinguished between the cases that might come before a Court, the Act of Congress particularly mentioning civil controversies in distinction from those of a criminal nature. What controversies of a civil nature could be maintained against a State by an individual? He thought that the framers of the Constitution must have meant one

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of two things, either that in the conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the General Government (which it must be admitted were full and discretionary within the restrictions of the Constitution itself) reference must be made to antecedent laws for the construction of the general words they used; or the framers intended to leave it to Congress in all such cases to pass all such laws as they might deem necessary and proper to carry the purposes of the Constitution into full effect. Attorney-General Randolph had taken the ground that the moment a Supreme Court is formed, it is to exercise all the judicial power vested in it by the Constitution by its own authority, whether or not the legislature has prescribed methods of doing so. From this view Justice Iredell dissented, conceiving that not merely was the organization of a Court to be determined by Congress, but also its authority and the manner of its procedure. The case before the Court was therefore one involving a construction of the provision in the Constitution which could not be interpreted without the aid of legislative authority. The Supreme Court was therefore the organ of the Constitution and the law, not of the Constitution only. In other words, the constitutional provisions respecting the Supreme Court were to be strictly construed. Granted that the interpretation of the Constitution depended upon an intervening act of Congress, it followed that unless such an intervening act specially applied to the case before the Court, the Court would have no jurisdiction.

At the time of the formation of the national Constitution, no State law authorized a compulsory suit for the recovery of money against a State; nor was any such law in force in the Commonwealths at the time of the passing of the Judiciary Act, in 1789. Though the assembly of