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and if that fails, whatever reproach the legislature may incur, the case is certainly without remedy in any of the courts of the State." No English precedent was authority that a petition to the Crown would lie in cases under contracts made with the Parliament, or with the Crown, by virtue of parliamentary authority. In other words, there was no English precedent for a compulsory suit against a State because its legislature had made a contract and had not fulfilled it. There was no similarity between a contract with the governor of a State made without special authority and a contract made with the Crown in England. "The Crown there has very high prerogatives, in many instances is a kind of trustee for the public interests, in all cases represents the sovereignty of the kingdom and is the only authority which can sue or be sued in any manner on behalf of the kingdom in any court of justice. The governor of a State is a mere executive officer; his general authority from analogy limited by the Constitution of the State, with no undefined or indisputable prerogatives, without power to affect one shilling of the public money but as he is authorized under the Constitution, or by a particular law, having no color to represent the sovereignty of the State so as to bind it in any manner to its prejudice, unless specially authorized thereto. And therefore all who contract with him do it at their own peril and are bound to see (or take the consequences of their own indiscretion) that he has strict authority for any contract he makes.

Of course such a contract, when so authorized, will come within the description mentioned of cases where public faith alone is the ground of relief and the legislative body the only one that can afford the remedy which, from the nature of it, must be the fact of its discretion and not of any compulsory process. If, however,

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any such cases were similar to those which would entitle the party to relief by petition to the king, in England, that petition being only presentable to him as he is the sovereign of the kingdom, so far as analogy is to take place, such petition in the State could only be presented to the sovereign power, which surely the governor is not. The only constituted authority to which an application could with any propriety be made, must undoubtedly be the legislature, whose express consent upon the principle of analogy would be necessary to any other proceeding. So that this brings us, though by a different route to the same goal, the discretion and good faith of the legislative body." By all principles of the common law, therefore, Justice Iredell concluded that a State could not be sued.

But had the laws of Congress so affected the sovereignty of an American State as to make it suable? He maintained that a State is not made subject to the judicial power of Congress. Such a construction could only be allowed at the utmost upon the supposition that the judicial authority of the United States, as it respected States, could not be effectuated without proceeding against them in that light, a position which Iredell by no means admitted. Admitting that the States ought to be considered as subject to the judicial power of Congress, an act of the legislature was necessary to give effect to such a construction unless the old doctrine concerning corporations would naturally apply to the case before the court. It was evident that the act of Congress had not made any special provision in this case grounded on any such construction. Therefore, Justice Iredell was perfectly clear "that we have no authority upon any supposed analogy between the two cases to apply the common doctrine concerning corporation to the immediate case before the court." There were in his opinion "the most essential

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differences between the old cases of corporations, to which the law intimated has reference, and the great and extraordinary case of the States separately possessing, as to everything simply relating to themselves, the fullest powers of sovereignty, and yet in some defined principles subject to the superior power composed out of themselves for the common welfare of the whole."

In its largest sense the word, corporation, had a more extensive meaning than was popularly given to it; any body politic was in this sense a corporation. Parliament itself was a corporation; not only each State but even the United States without impropriety might be called corporation. But there were differences between such corporations and the several States in the Union discernible when these States and the United States were considered in their relations. "A corporation is a mere creature of the king, or of Parliament, very rarely of the latter, most usually of the former only. It owes its existence, its name and its laws (except such laws as are necessarily incident to all corporations merely as such) to the authority which creates it. A State does not owe its origin to the government of the United States in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: the voluntary and deliberate choice of the people. A corporation can do no act but what is subject to revision either of a court of justice or of some other authority within the government. A State is altogether exempt from the jurisdiction of the courts of the United States, or from any other exterior authority, except in the special instances where the general government has power derived from the Constitution itself. A corporation is altogether dependent on that government to which it owes its existence. Its charter may be for

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feited by abuse. Its authority may be annihilated without abuse by an act of the legislative body. A State, though subject in certain specified particulars to the authority of the government of the United States, is in every other respect totally independent of it. The people of the State created, the people of the State only can change its constitution. Upon this power there is no other limitation but that imposed by the Constitution of the United States: that it must be of republican form." Any other construction than this, in the opinion of Justice Iredell, “would make courts arbitrary and in fact makers of new laws instead of being, as certainly they alone should be, expositors of an existing one."

As, in his opinion, there existed no law, which reduced a State to the condition of a municipal corporation, he knew of no authority by which a court in an extra-local decision could reduce a State to such a condition. From his opinions we draw the conclusions that the Constitution so far as it defined the judicial authority of the United States could only be carried into effect by acts of Congress appointing courts and prescribing their procedure; as Congress had provided no new law, in this respect reference must be expressly made to the old law: the common law of England. No principles of the old law, either by precedent or by analogy, authorized the Court to have jurisdiction of the case before it. Therefore the suit in question could not be maintained. A State could not be sued.1

There is a close analogy between Iredell's opinion and the political doctrine developed during colonial times and expressed imperfectly in the various plans for Union.2 Each of these plans, it will be remembered, was founded 1 Chisholm, Executor, vs. Georgia, et cetera. 2 See Chapter VI of Book I, Vol. I.

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STATE SOVEREIGNTY.

upon the idea that the Crown was the source of government in America; that each colony derived its political existence from the specific grant duly set forth in some royal charter. Essential to this idea was that of the independence of each colony with respect to every other and the dependence of all the colonies upon the Crown. In the evolution of federal government each colony became a State and the strict federal doctrine of government defined this State not only as independent of every other State, but as independent of all the States forming the Government of the United States. This federal doctrine maintained that there was a difference between a State, as a legal entity, and the people of a State. It attributed to the State as a legal entity a sovereignty succeeding the sovereignty of the British Crown. The legal argument in defense of this idea naturally was founded on the common law. It was compelled in putting the State in the place of the Crown to attribute to the State all those qualities which had previously been attributable to the Crown. It therefore, in basing the doctrine upon the precedent of the common law and upon the rights of the British Crown had made no provision for any reorganization of the powers of the government necessary to the administration of them according to republican principles of government. It sought to engraft a republican form of government on the root of monarchy. It enthroned a new king,-the sovereign corporation of the State. It eliminated the individual from the modern State. It conceived of the rights of men but not of the rights of a man. It functionized the individual in the civil corporation and, carefully defining its rights, privileges and immunities, omitted to define his. Therefore Iredell, and all who found their political views upon his interpretation of the force of civil factors, strictly following the course of the