1793.
thority be necessary for so notorious a definition, recur to 1 Harr. Chan. Pract. p. 35. where it is observed, that “in this Court,” that is, in the High Court of Chancery of England, “suits are generally commenced, prosecuted, and defended by parties, in their own names only.” I might appeal too to a work of greater solemnity, and of greater obligation; the articles of confederation. In describing the mode, by which differences between two or more States shall be adjusted, they speak of a day to be assigned for the appearance of the parties; of each party alternately striking the names of the persons proposed as Judges; of either party neglecting to attend; of striking names in behalf of a party absent; of any of the Parties refusing to submit to the authority of the Court; and of lodging the sentence among the acts of Congress for the security of the parties concerned. Human genius might be challenged to restrict these words to a plaintiff state alone. It is indeed true, that according to the order in which the controversies of a State are mentioned, the State is the first; and from thence it may be argued, that they must be those in which a State is first named, or plaintiff. Nobody denies, that the citizens of a State may sue Foreign subjects, or Foreign subjects the citizens of a State. And yet, the expression of the Constitution is, “between a State or the citizens thereof, and Foreign States, citizens or subjects.” The order in this instance, works no difference. In common language too, it would not violate the substantial idea, if a controversy, said to be between A. B. and C. D. should appear to be between C. D. and A. B. Nay the opportunity fairly occurs in two pages of the judicial article, to confine suits to States, as plaintiffs; but they are both neglected, notwithstanding the consciousness which the convention must have possessed, that the words, unqualified, strongly tended at least to subject States as defendants.
With the advantage of the letter on our side, let us now advert to the spirit of the Constitution, or rather its genuine and necessary interpretation. I am aware of the danger of going into a wide history of the Constitution, as a guide of construction; and of the still greater danger of laying any important stress upon the preamble as explanatory of its powers. I resort, therefore, to the body of it; which shews that there may be various actions of States which are to be annulled. If, for example, a State shall suspend the priviledge of a writ of habeas corpus, unless when in cases of rebellion or invasion the public safety may require it; should pass a bill of attainder or ex post facto law; should enter into any treaty, alliance, or confederation; should grant letters of marque and reprisal; should coin money; should emit bills of credit; should make any thing but gold and silver coin a tender in payment of debts, should pass a