IREDELL'S OPINION. 275 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 276 IREDELL'S OPINION. 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 IREDELL'S OPINION. 277 of two things, either that in the conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the General Government (which it must be admitted were full and discretionary within the restrictions of the Constitution itself) reference must be made to antecedent laws for the construction of the general words they used; or the framers intended to leave it to Congress in all such cases to pass all such laws as they might deem necessary and proper to carry the purposes of the Constitution into full effect. Attorney-General Randolph had taken the ground that the moment a Supreme Court is formed, it is to exercise all the judicial power vested in it by the Constitution by its own authority, whether or not the legislature has prescribed methods of doing so. From this view Justice Iredell dissented, conceiving that not merely was the organization of a Court to be determined by Congress, but also its authority and the manner of its procedure. The case before the Court was therefore one involving a construction of the provision in the Constitution which could not be interpreted without the aid of legislative authority. The Supreme Court was therefore the organ of the Constitution and the law, not of the Constitution only. In other words, the constitutional provisions respecting the Supreme Court were to be strictly construed. Granted that the interpretation of the Constitution depended upon an intervening act of Congress, it followed that unless such an intervening act specially applied to the case before the Court, the Court would have no jurisdiction. At the time of the formation of the national Constitution, no State law authorized a compulsory suit for the recovery of money against a State; nor was any such law in force in the Commonwealths at the time of the passing of the Judiciary Act, in 1789. Though the assembly of 278 IREDELL'S OPINION. Georgia had passed an act authorizing a compulsory suit against the State for the recovery of money since the adoption of the judiciary act, its action could in no wise influence the construction of the act of Congress passed before. The only principles of law which the court could follow were those common to all the States. These were the principles of the common law. Unless superseded by special acts of legislature, the common law was in force in each State as it existed in England, unaltered by any statute, at the time of the first settlement of America. No alteration had been made by any statute in any of the American Commonwealths which could in any wise affect the case before the Court. "Every State in the Union," continued Justice Iredell, "in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of government actually surrendered; each State in the Union is sovereign as to all the powers reserved. It must necessarily be so because the United States have no claim to any authority but such as the States have surrendered to them. Of course, the part not surrendered must remain as it did before. The powers of the general government, either of a legislative or an executive nature, or which particularly concern treaties with foreign powers do for the most part, if not wholly, affect individuals and not States. They require no aid from any State authority. This is a great, leading distinction between the old Articles of Confederation and the present Constitution. The judicial power is of a peculiar kind. It is, indeed, commensurate with the ordinary legislative and executive powers of the general government and the power which concerns treaties but it also goes further where certain IREDELL'S OPINION. 279 purposes are concerned, although the subject in controversy does not relate to any of the special objects of authority of the general government wherein the separate sovereignties of the States are blended in one common mass of supremacy; yet the general government has a judicial authority in regard to such subjects of controversy, and the legislature of the United States may pass all laws necessary to give such judicial authority its proper effect. So far as States under the Constitution can be made legally liable to this authority, so far, too, they are subordinate to the authority of the United States and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires; the authority extends only to the decision of controversies in which a State is a party and to provide laws necessary for that purpose." Any question arising in the nature of a controversy in which a State is a party could be determined, according to Iredell, in no other manner than by a reference either to pre-existent laws or to laws passed under the Constitution and in conformity with it. He declared that Congress had proceeded upon the supposition that no such prior laws existed, and that the Constitution, in many respects, required legislation to make it effective. The Court in the case had a concurrent jurisdiction only, a jurisdiction original but not exclusive. The only courts with which such concurrent jurisdiction lay were the circuit courts or the courts of the different States. It could not be with the circuit courts, for admitting that the Constitution is not to have a restrictive operation so as to confine all cases in which a State is a party exclusively to the Supreme Court (an opinion to which Justice Iredell was strongly inclined), yet, there were no words in |