ANALOGIES IN IREDELL'S OPINION.

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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

NATIONAL SOVEREIGNTY.

287

common law and of the precedents in monarchical government, logically and carefully define the functions of the civil corporation in America but wholly neglect to define the place and power, the rights and immunities, of the individual who is the essential element in government, and who is the only power in the State qualified to functionize the State as a political entity.

But in spite of this current application of the principles of the law and the precedents of English monarchy in the colonies, there evolved in them necessarily the principles of a National Government and of the place and power of the rights and immunities of the individual citizen in that government. The State sovereignty concept is essentially legal and monarchical; the concept of national sovereignty is essentially organic, economic, and also legal, but its legality is principally that expressed by statutes defining rights and relations determinable by political experience and not as determinable wholly by the English precedents of common law. This political experience is itself the constant economic adjustment of the people and is essentially the evolution of democracy; so that it may be said that in contradiction to the State sovereignty or monarchical idea of government, the national idea of government is democratic. In other words, the normal idea of government is democratic. All gov ernments constantly tend toward this form. A strict adherence to the principles of common law not only in their application in courts of justice but also in adminis tration in America in colonial times would never have evolved a national independent American Government; for the independence of America, tested by the principles of the common law, was essentially a treasonable act. A strict application of the principles upon which the doctrine of State sovereignty is based would never have

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THE NATIONAL IDEA.

evolved the idea that all men are created equal, for the precedents in the application of those principles had already made permanent social distinctions in the British monarchy. The abolition of such distinctions and an inhibition of a revival of them as set forth in the Constitution of the United States were contrary to the course of the common law and themselves evidence of a new age in legislation. The national idea of government in America is founded upon an organic conception without precedent, in all its parts, in the common law. This political organism which we call the Nation, is founded upon the concept of the political equality of human beings, of their individual rights and powers, privileges and immunities and of the reflex action upon them of the operations of the general government which they have created.

In the evolution of American democracy, the national idea assumed clearness in the public mind as soon as the necessities for a more perfect union became clear. This necessity could not be felt until the limitations, the imperfections, the meaningless precedents, the absurd fictions of the common law as strictly applied in monarchical institutions, were experienced in the new world. The principal cause for the evolution of the national idea has been economic. The practical newness of our system of government, the equalizing labors necessary to reduce a wilderness to a continent of homes, at last compelled the administration of the general government according to the principles of nationality.

But though Iredell had given an epoch-making opinion, it was not the decision of the Court. The American States were suable in Federal courts: that was the startling and the official conclusion of the whole matter. The fathers were reversed; the ideas of the framers ignored; the Federalist rejected by one of its authors. True, Jay

SOVEREIGNTY OF THE PEOPLE.

289

had said "that the sovereignty of the nation is in the people of the nation and the residuary sovereignty of each State is in the people of each State." But this did not save State sovereignty. So far as the decision impaired it, it must be corrected. Georgia, with promptness passed an act fixing the death penalty on any one who should attempt to carry out the decision of the Court. Massachusetts, alarmed at the prospect of becoming the prey of creditors, expostulated against the decision and urged remedial action. New York and Maryland also protested.1 The Chisholm decision was handed down on the eighteenth of February, 1793. On the next day, Sedgwick, of Massachusetts, gave notice in the lower House of Congress, that he should soon move a resolution for amending the Constitution so as to protect the States from being sued in Federal courts.2 On the twentieth, the amend

'Maryland, Van Stophorst vs. Maryland, 2 Dall. 401; (New York) Oswald vs. New York, 2 Dall. 401, 415; Vassal vs. Mass., Commented on by Hildreth, IV, 409, 446; Pitkin II, 335, 341. Compare Elliot II, 212, 382; III, 480, 485; IV, 167; American Law Review, XII, 625.

2 Sedgwick anticipated the action of his own State fully seven months. The subpœna in equity in William Vassal, complainant, vs. The Commonwealth of Massachusetts, issued February 11, 1793, from the Supreme Court of the United States, at Philadelphia (Jay, C. J.); Samuel Bayard, Clk., and was served on John Hancock, Governor, and James Sullivan, Esq., Attorney-General of the State. The Governor called a special session of the General Court, which assembled September 18, 1793, and, in his address to the two Houses, discussed the question of the suability of a sovereign State by an individual (in re William Vassal). The question of the suability of a State (settled by the decision in Chisholm vs. Georgia), the Governor thought should be "properly, satisfactorily and finally settled." He doubted the truth of the doctrine sustained by Wilson and Jay, in the Chisholm decision, and held that it was not the original intention of the framers and supporters of the Constitution to make it possible that a State could be brought as party defendant, as in the case of Chisholm vs. Georgia. (Resolves of the General Court of the Commonwealth of Massachusetts, began and held at Boston, in