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the name of William Samuel Johnson, also a member of the Federal Convention, is forever associated.

As most of the framers of the Constitution were lawyers, and several of them possessed legal minds of the highest order, it was to be expected that the article on the judiciary would receive most critical attention and that, at last, it would leave their hands in as perfect form as men, familiar with political theories and grounded in legal practice, could suggest. A constitution of government is a practical device for carrying on public business. A person reading the Constitution of the United States and depending for his knowledge of our institutions upon its apportionment of political powers would be unable to discover, in the four brief paragraphs on the judiciary, more than a hint of the meaning of the plain language which vests "the judicial power of the United States." Gouverneur Morris, who wrote the Constitution in the form in which it was signed, has left us an interesting letter in which he refers to the language of the article on the judiciary. "That instrument," says he, speaking of the Constitution as a whole, "was written by the fingers which write this letter. Having rejected redundant and equivocal terms, I believed it to be as clear as our language would permit; excepting, nevertheless, a part of what relates to the judiciary. On that subject conflicting opinions had been maintained with so much professional astuteness, that it became necessary to select phrases, which, expressing my own notions, would not alarm others, nor shock their self-love; and to the best of my recollection, this was the only part which passed without cavil."

The general unanimity with which the judiciary article

1 Spark's Morris, III, 323. Morris to Timothy Pickering, December 22, 1814.

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STATE SOVEREIGNTY.

finally passed should not lead us to believe that it was given, at the time, but one interpretation. For instance, the article declares that the jurisdiction of the national courts shall extend to all controversies "between a State and citizens of another State," but it does not declare that it extends to cases between a citizen of a State and another State. That some feared that this last interpretation of the power of the courts might be claimed for those of the United States, is clear from the speeches of George Mason in the Virginia convention,1 and nowhere clearer than in Marshall's answer to Mason on this point. "With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentlemen will think that a State will be called at the bar of a federal court. Is there no such case at present? Are there not many cases in which the Legislature of Virginia is a party, and yet the State is not sued? It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States. I contend this construction is warranted by the words. But, say they, there will be partiality in it if a State cannot be defendant-if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff. If this be only what cannot be avoided, why object to the system on that account? If an individual has a just claim against any particular State, is it to be presumed that, on application to its Legislature, he will not obtain satisfaction? But how could a State recover any claim from a citizen of

1 See pp. 118-121, ante.

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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,2 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.

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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."1

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.

Elliot, V, 127; Documentary History, III, in loco.

FAILURE OF STATE SOVEREIGNTY.

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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