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WILSON'S OPINION.

century longer, all its proceedings were still under the ban of secrecy.1 The Supreme Court of the United States had not yet attracted public attention. Its justices, pure and able men, had been solicited by Washington to accept their offices. Its splendid history was all in the future. Suddenly a case had arisen, involving a small amount of money, but the gravest question with which the American people have had to wrestle. It was the first great constitutional case before the Court. Wilson examined the question from three points, the principles of general jurisprudence, the laws of nations, and the Constitution. Developing the general notion of sovereignty from the first two, he proceeded to prove that the Constitution, by right, vested sovereignty in the United States, and explicitly vested the Court with jurisdiction over a State in the Union. The Articles of Confederation operated only upon States; not upon individual citizens. The Constitution had remedied this defect. The people of the United States intended to form themselves into a Nation for national purposes. They instituted, for such purposes, a national government complete in all its parts, with powers legislative, executive and judiciary, and, in all those powers, extending over the whole nation. Is it congruous that, with regard to such purposes, any man or body of men, any person, natural or artificial, should be permitted to claim successfully an entire exemption from the jurisdiction of the national government? Would not such claims, crowned with success, be repugnant to our very existence as a nation? "When so many trains of deduction, coming from different quarters, converge and unite at last in the same point, we may safely conclude," said he, "as the legitimate result of this Constitution, that

1 And they continued so till Madison's death in 1836.

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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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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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