1793.
Plaintiff. But, the framers of the Constitution could never have thought thus. They must have viewed human rights in their essence, not in their mere form. They had heard, seen—I will say felt; that Legislators were not so far sublimed above other men, as to soar beyond the region of passion. Unfledged as America was in the vices of old Governments, she had some incident to her own new situation: individuals had been victims to the oppression of States.
These doctrines are moreover justified: 1st. By the relation in which the States stand to the Federal Government: and, 2d. By the law of nations, on the subject of suing sovereigns; and, 3d. They are not weakened by any supposed embarrassment attending the mode of executing a decree against a State.
1st.I acknowledge, and shall always contend, that the States are sovereignties. But with the free will, arising from absolute independence, they might combine in Government for their own happiness. Hence sprang the confederation; under which indeed the States retained their exemption from the forensic jurisdiction of each other, and, except under a peculiar modification, of the United States themselves. Nor could this be otherwise; since such a jurisdiction was no where (according to the language of that instrument) expressly delegated. This Government of supplication cried aloud for its own reform; and the public mind of America decided, that it must perish of itself, and that the Union would be thrown into jeopardy, unless the energy of the general system should be increased. Then it was the present Constitution produced a new order of things. It derives its origin immediately from the people; and the people individually are, under certain limitations, subject to the legislative, executive, and judicial authorities thereby established. The States are in fact assemblages of these individuals who are liable to process. The limitations, which the Federal Government is admitted to impose upon their powers, are diminutions of sovereignty, at least equal to the making of them defendants. It is not pretended, however, to deduce from these arguments alone, the amenability of States to judicial cognizance; but the result is, that there is nothing in the nature of sovereignties, combined as those of America are, to prevent the words of the Constitution, if they naturally mean, what I have asserted, from receiving an easy and usual construction. But pursue the idea a step farther; and trace one, out of a multitude of examples, in which the General Government may be convulsed to its center without this judicial power. If a State shall injure an individual of another State, the latter must protect him by a remonstrance. What if this be ineffectual? To stop there would cancel his allegiance; one State cannot sue another for such a cause; acquiescence is not