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the definition of the powers of the circuit court which gave color to an opinion that where a suit is brought against a State by a citizen of another State, the circuit court could exercise any jurisdiction at all. If they could have such a jurisdiction by the very terms of their authority, it could be only concurrent with the courts of the several States.

From this, Justice Iredell concluded that the act of Congress was the limit of the authority of the Supreme Court, and, consequently, that the Court had no authority except such as could be consistently exercised by the proper State court. As the principles of the laws existing before the Constitution of the United States were in the opinion of the Justice, to guide in the determination of this case, he inquired whether an action like that before the court could have been maintained against one of the States in the Union upon the principles of common law. If such an action could be maintained on these principles, then it could be maintained in the Supreme Court. "Now, I presume," continued he, "it will not be denied that in every State in the Union previous to the adoption of the Constitution, the only common law principles in regard to suits that were in any manner assumable in respect to claims against a State, were those which in England apply to claims against the Crown; there being certainly no other principles of the common law which previous to the adoption of this Constitution, could in any manner or upon any color apply to the case of a claim against a State in its own courts, where it was solely and completely sovereign in respect to such cases at least."

His opinion therefore involved two propositions; that the Supreme Court of the United States had no jurisdiction of the case and that a sovereign State can not be sued. The first proposition was based upon his inter

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pretation of the Constitution and of the Judiciary Act; his second, upon English precedent. At great length he entered into an examination of these precedents and concluded that the king could not be sued in all actions as a common person and that in those actions in which by precedent, suit might be brought against him, there was no precedent applicable to the case before the Court. The king might be petitioned but not sued. There was no process known to the law by which the king could be compelled to be a defendant. If any of the precedents could be construed as showing authority for maintaining a suit against a sovereign, it was a construction to be drawn from royal grace and not from royal necessity. The only remedy for the recovery of debts due from a sovereign was by petition which must receive the express sanction of the sovereign, otherwise, there could be no proceeding upon it. If the debt contracted was avowedly for the public uses of the government, it was at least doubtful whether remedy by suit would lie. And if it would, it remained afterward in the power of Parliament to provide or not to provide for the payment of the debt. In applying these English precedents, Iredell considered the State as sovereign, the successor to the king. The claim of a debt due from a State could arise in three cases only; first, in case of a contract with the legislature itself; second, in case of a contract with the executive, or any other person, by the express authority of the legislature; or, third, in case of a contract with an executive without any special authority. The contract in the first and second cases would be made on the public faith alone. "Every man must know that no suit can lie against a legislative body. His only dependence, therefore, can be that the legislature on the principles of public duty will make a provision for the execution of their own contracts,

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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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