SUABILITY OF A STATE. 267 another State, without the establishment of these tribunals ?"" 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, 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. 268 THE STATES SOVEREIGN. sions to a compulsive force. They confer no right of action, independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident, it could not be done without waging war against the contracting State; and to ascribe to the Federal courts, by mere implication, and in destruction of a pre-existing right of the State governments, a power which would involve such a consequence, would be altogether forced and unwarrantable." From this contemporary exposition, considering its high source, it must be concluded that the framers of the Constitution did not intend to make it possible to "drag a sovereign State before a federal court." Rather it appears from the arguments of Marshall and Hamilton, that the Constitution guaranteed every State against being made defendant in any action that might be brought. By giving the State the right to bring action, in the federal courts, the Constitution was interpreted, by Hamilton and Marshall, as strengthening the States; for it put behind them the full authority of the general government. In one form or another, the argument ran through all the debates in the ratifying conventions, that the States would gain by assenting to the Constitution. Randolph, on presenting the Virginia plan, spoke of the jealousy of the States respecting their sovereignty as a fact familiar to all.2 The records of the time, public and private, show that the predominating idea was that the States were sovereign. True or false, it was the ruling idea in 1788. That it was to prove false, under the test of administration, was not realized until 1865. But we must take ideas as we find them in the almanac of politics. Because 1 The Federalist, No. LXXXI. 2 Elliot, V, 127; Documentary History, III, in loco. FAILURE OF STATE SOVEREIGNTY. 269 State sovereignty was the major premise of American politics in the eighteenth century, it does not follow that it was forever to hold this place in the civil syllogism. Time might prove, as it has proved, that the premise was wrong, at least as a working political principle. Historically, however, the argument is with the State sovereignty school. The government of the United States was formed when the dogma of State sovereignty was supreme. We have seen how it dominated the thought of many of the framers of the Constitution and how it expressed itself without restraint in the ratifying conventions. In truth, no other dominating idea was then possible. The national idea must evolve; must be worked out by the harsh tests of administration. For it was when the State sovereignty dogma had proved destructive to the ends proposed so comprehensively in the Preamble to the Constitution,"A more perfect Union," "justice," "domestic tranquillity," "common defence," "the general welfare" and the security of liberty, that the national idea was first comprehended by the American people. Crimination and recrimination cannot rewrite the past. Who can tell the price of liberty, or find a substitute for experience, or animate a people with ideas to which they have not grown? We are by race a conservative people, but a government cannot be administered solely on its history. Right or wrong, each generation must interpret the public business and, administering its own ideas, shoulder civil responsibility. The Fathers, as we affectionately call our early statesmen, were opportunists. So all public men must be in revolutionary times, and we seem to have such times most of the time. "I do not mean to say we are bound to follow implicitly in whatever our fathers did," said Lincoln, in the Cooper Institute speech; "To do so would be to discard all the lights of current experi 270 THE BELIEF OF THE FATHERS. ence to reject all progress, all improvement. What I do say is that if we would supplant the opinions and policy of our fathers in any case, we should do so upon evidence so conclusive, and argument so clear, that even their great authority, fairly considered and, weighed, cannot stand."1 That the Constitution was adopted with the understanding that a sovereign State could not be sued in a federal court cannot be doubted, if the complete evidence is duly weighed. Therefore, unless a State, by its constitution, authorized suits to be brought against itself, it could not be sued at all. In 1787, no State gave this authority. Five years later, Delaware, in its second constitution, declared that suits might be brought against the State as the law might prescribe, and Tennessee, in 1796, authorized such suits but limited the right of bringing them to its own citizens. These and some other States have repeated the provision in later constitutions.2 But at the time when the national Constitution was made, the 1 Lincoln's Works, I, 604. 2 Delaware, 1831, 1894; Tennessee, 1834, 1870, in Bills of Rights. The Constitution of Arkansas, of 1874, Art. V, Sec. 20, declares that the State shall never be made defendant in any of her Courts. But see Cursan vs. Arkansas, et al., 15 Howard, 30d, 309; Clark vs. Barnard, 108 U. S. 436, 447; Beer's et al. vs. Arkansas, 20 Howard, 527. State constitutions authorizing legislation for bringing suits against the State: Wisconsin, 1848, IV, 27; California, 1850, XI, 11; Kentucky, 1850, VIII, 6; 1890, Sec. 231; Indiana, 1851, IV, 24; Nevada, 1864, IV, 22; Missouri, 1865, IV, 21; Florida, 1868, IV, 19; 1885, III, 22; Mississippi, 1868, IV, 21; South Carolina, 1868, XIV, 4; 1895, XVII, 2; Alabama, 1867, I, 16; Pennsylvania, 1873, IX, 11; Washington, 1889, II, 26; North Dakota, 1889, I, 22; Wyoming, 1889, I, 8. Bringing suit against a State is forbidden by: THE CHISHOLM-GEORGIA CASE. 271 common-law doctrine prevailed that a State, being the sovereign power, could be petitioned, but not sued. And the States were commonly understood to be the successors to the Crown. When, therefore, in 1792, Alexander Chisholm, a citizen of South Carolina, brought suit against the State of Georgia in the Supreme Court of the United States, “a case of uncommon magnitude," to quote Justice Wilson's words, arose. "One of the parties to it," continued he, in giving the decision in the case, "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? This question, important in itself, will depend on others more important still, and may perhaps be ultimately resolved into one no less radical than this-"Do the People of the United States form a Nation?" When we remember Gerry and Mason and Lee and Martin's antipathy to the word "national," in the earlier drafts of the Constitution, in the FederalConvention, and that they reflected the opinions of thousands of their countrymen less distinguished; when we remember the adroit compromises, on various occasions, by which the issue between State sovereignty and National sovereignty was avoided; the boldness with which Wilson seized the issue before the Court becomes clearer. Passing by any possible errors in procedure, and passing, for a time, the particular matter before the Court, Wilson proceeded, apparently with joy, to answer the radical question: "Do the People of the United States form a Nation?" He had already answered the question in his speeches in the Federal Convention, but his words there were heard only by a few, and in 1792, and for nearly half a |