288 THE NATIONAL IDEA. evolved the idea that all men are created equal, for the precedents in the application of those principles had already made permanent social distinctions in the British monarchy. The abolition of such distinctions and an inhibition of a revival of them as set forth in the Constitution of the United States were contrary to the course of the common law and themselves evidence of a new age in legislation. The national idea of government in America is founded upon an organic conception without precedent, in all its parts, in the common law. This political organism which we call the Nation, is founded upon the concept of the political equality of human beings, of their individual rights and powers, privileges and immunities and of the reflex action upon them of the operations of the general government which they have created. In the evolution of American democracy, the national idea assumed clearness in the public mind as soon as the necessities for a more perfect union became clear. This necessity could not be felt until the limitations, the imperfections, the meaningless precedents, the absurd fictions of the common law as strictly applied in monarchical institutions, were experienced in the new world. The principal cause for the evolution of the national idea has been economic. The practical newness of our system of government, the equalizing labors necessary to reduce a wilderness to a continent of homes, at last compelled the administration of the general government according to the principles of nationality. But though Iredell had given an epoch-making opinion, it was not the decision of the Court. The American States were suable in Federal courts: that was the startling and the official conclusion of the whole matter. The fathers were reversed; the ideas of the framers ignored; the Federalist rejected by one of its authors. True, Jay SOVEREIGNTY OF THE PEOPLE. 289 had said "that the sovereignty of the nation is in the people of the nation and the residuary sovereignty of each State is in the people of each State." But this did not save State sovereignty. So far as the decision impaired it, it must be corrected. Georgia, with promptness passed an act fixing the death penalty on any one who should attempt to carry out the decision of the Court. Massachusetts, alarmed at the prospect of becoming the prey of creditors, expostulated against the decision and urged remedial action. New York and Maryland also protested.1 The Chisholm decision was handed down on the eighteenth of February, 1793. On the next day, Sedgwick, of Massachusetts, gave notice in the lower House of Congress, that he should soon move a resolution for amending the Constitution so as to protect the States from being sued in Federal courts.2 On the twentieth, the amend 'Maryland, Van Stophorst vs. Maryland, 2 Dall. 401; (New York) Oswald vs. New York, 2 Dall. 401, 415; Vassal vs. Mass., Commented on by Hildreth, IV, 409, 446; Pitkin II, 335, 341. Compare Elliot II, 212, 382; III, 480, 485; IV, 167; American Law Review, XII, 625. Sedgwick anticipated the action of his own State fully seven months. The subpœna in equity in William Vassal, complainant, vs. The Commonwealth of Massachusetts, issued February 11, 1793, from the Supreme Court of the United States, at Philadelphia (Jay, C. J.); Samuel Bayard, Clk., and was served on John Hancock, Governor, and James Sullivan, Esq., Attorney-General of the State. The Governor called a special session of the General Court, which assembled September 18, 1793, and, in his address to the two Houses, discussed the question of the suability of a sovereign State by an individual (in re William Vassal). The question of the suability of a State (settled by the decision in Chisholm vs. Georgia), the Governor thought should be "properly, satisfactorily and finally settled." He doubted the truth of the doctrine sustained by Wilson and Jay, in the Chisholm decision, and held that it was not the original intention of the framers and supporters of the Constitution to make it possible that a State could be brought as party defendant, as in the case of Chisholm vs. Georgia. (Resolves of the General Court of the Commonwealth of Massachusetts, began and held at Boston, in 290 ALARM OF THE STATES. ment, nearly in the form it was at last given, was offered in the Senate.1 But the year passed and the amendment slumbered. On the second of January it was again proposed in the Senate,2 was discussed on the thirteenth,3 and, after an unsuccessful effort of Gallatin to amend it, was passed, on the fourteenth, by a vote of twentythe county of Suffolk, on Wednesday, the 29th day of May, A. D., 1793.) (See also Edition, 1895, pp. 699-703.) The General Court, on September 27, 1793, by resolution declared against the doctrine of the suability of a State, as laid down by the Supreme Court of the United States in Chisholm vs. Georgia, and instructed the Massachusetts Senators, and requested the Representatives of the State, in Congress, "to adopt the most speedy and effectual measures in their power to obtain such amendments in the Constitution of the United States as will remove any clause or article of the said Constitution which can be construed to imply or justify a decision that a State is compellable to answer in any suit by an individual or individuals in any Court of the United States," and Governor Hancock was "requested to communicate the foregoing resolves to the Supreme Executives of the several States, to be submitted to the consideration of their respective Legislatures." Ibid. The ground of the resolutions was that the doctrine of suability as laid down in Chisholm vs. Georgia was "dangerous to the peace, safety and independence of the several States and repugnant to the first principles of a federal government." Ibid. Governor Hancock, using the current expression of the times, declared the Chisholm decision a "dangerous precedent," and that "a consolidation of all the States into one government would at once endanger the nation as a Republic and eventually divide the States united." Ibid. 1 Eleventh Amendment, first draft, February 20, 1793. (Annals, 651.) "The Judicial power of the United States shall not extend to any suits in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 2 Id., 25. 3 Id., 29. 4 Gallatin's proposition was: "The Judicial power of the United States, except in cases arising under treaties made under the authority of the United States, A TWELFTH AMENDMENT PROPOSED. 291 three to two. On that day it was read in the House for the first time; and on the fourth of March, the House, having resolved itself into a Committee of the Whole, on the matter, and further amendment having been rejected,1 the Senate resolution was adopted by a vote of eighty-one to none.2 It was before the State Legislatures nearly three years, and its ratification was announced by President Adams on the eighth of January, 1798.3 shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." (January 14, 1794. Annals, 30.) Another form of the amendment proposed on this day: "The Judicial power of the United States extends to all cases in law and equity in which one of the United States is a party; but no suit shall be prosecuted against one of the United States by citizens of another State, or by citizens or subjects of a foreign State, where the cause of action shall have arisen before the ratification of this amendment." (Ib.) Taken from Virginia Amendment, No. 14, Elliot, III, 661. The nearest precedents for the XIIth Amendment among the amendments by ratifying Conventions were: 1788, Virginia, Amendment No. 14, Elliot, III, 661. North Carolina, Amendment No. 15. Documentary History, The Virginia and North Carolina amendments were alike 1 This amendment (rejected by 77 to 8, March 4, 1793. Annals, 476) was: to add to the resolution as it came from the Senate the words: "Where such State shall have previously made provision in their own courts whereby such suit may be prosecuted to effect." The amendment as it was passed by the Senate (second and final draft): Same as Constitution, Article XI. Amendments. 2 Annals, 477. * Messages and Papers of the President, Richardson, I, 260. The record at the Department of State, of the ratification of the Eleventh Amendment, seems to be incomplete. It contains 292 OPINION OF JUDGE BRADLEY. It is to be observed that, the amendment, as adopted by both Houses, followed Gallatin's phraseology. The ratifying convention had asked for amendment of the article on the judiciary and that proposed by Virginia may be taken as a type of their requests; it was the substance of the amendment which was rejected, along with Gallatin's. The absence of any immediate and clear precedent for the amendment, indicates that none of the States anticipated any such decision as was given by Wilson and Jay, in Chisholm vs. Georgia. No comment on the amendment is more informing than that by the Supreme Court itself in a decision, given by Justice Bradley nearly a century later.1 The decision by Wilson and Jay, says Bradley, "created such a shock of surprise throughout the country that at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed and was in due course adopted by the Legislatures of the States. This official notice of ratification by Virginia, Kentucky, Maryland, Connecticut, North Carolina and South Carolina, with no record of the action by other States. See Documentary History of the Constitution, II, pp. 392-407. See also Journals of House and Senate, 3rd Cong., 2nd Sess.; 4th Cong.; 5th Cong. On the 24th of February, 1797, Congress passed a joint resolution requesting the President to ascertain what States had ratified the Eleventh Amendment (Annals, 1796-1797, 2284). On the 12th of October, President Adams wrote to Pickering, Secretary of State: "There is a law, or resolve, requesting the President to write to the governors of the States for information whether they have adopted the amendment to the Constitution relative to the suability of States. I know not but you may have executed this resolution; if not, I beg you would write without loss of time, lest a noise should be made at the opening of the next session, and we should be charged with neglect of duty." Life and Works of John Adams, VIII, 552. 1 Hans vs. Louisiana, 134 U. S. 1. (1889). |