Chisholm v. Georgia/Dissent Iredell

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Iredell, Justice.

This great cause comes before the Court on a motion made by the Attorney General that an order be made by this Court to the following effect:

That, unless the State of Georgia shall, after reasonable notice of this motion, cause an appearance to be entered on behalf of the said State on the fourth day of next Term, or show cause to the contrary, judgment shall be entered for the plaintiff, and a writ of enquiry shall be awarded.

Before such an order be made, it is proper that this Court should be satisfied it hath cognizance of the suit; for, to be sure, we ought not to enter a conditional judgment (which this would be) in a case where we were not fully persuaded we had authority to do so.

This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case it did not, because the Attorney General of the State voluntarily appeared. We could not therefore, without the greatest impropriety, have taken up the question suddenly. That case has since been compromised. But, had it proceeded to trial, and a verdict been given for the plaintiff, it would have been our duty, previous to our giving judgment, to have well [p430] considered whether we were warranted in giving it. I had then great doubts upon my mind, and should in such a case have proposed a discussion of the subject. Those doubts have increased since, and, after the fullest consideration I have been able to bestow on the subject, and the most respectful attention to the able argument of the Attorney General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained.

The action is an action of assumpsit. The particular question then before the Court is will an action of assumpsit lie against a State? This particular question (abstracted from the general one, viz., whether a State can in any instance be sued?) I took the liberty to propose to the consideration of the Attorney General last Term. I did so because I have often found a great deal of confusion to arise from taking too large a view at once, and I had found myself embarrassed on this very subject until I considered the abstract question itself. The Attorney General has spoken to it, in reference to my request, as he has been pleased to intimate, but he spoke to this particular question slightly, conceiving it to be involved in the general one; and after establishing, as he thought, that point, he seemed to consider the other followed of course. He expressed, indeed, some doubt how to prove what appeared so plain. It seemed to him (if I recollect right) to depend principally on the solution of this simple question: can a State assume? But the Attorney General must know that, in England, certain judicial proceedings not inconsistent with the sovereignty may take place against the Crown, but that an action of assumpsit will not lie. Yet surely the King can assume as well as a State. So can the United States themselves, as well as any State in the Union. Yet the Attorney General himself has taken some pains to show that no action whatever is maintainable against the United States. I shall therefore confine myself, as much as possible, to the particular question before the Court, though everything I have to say upon it will effect every kind of suit the object of which is to compel the payment of money by a State.

The question, as I before observed, is will an action of assumpsit lie against a State? If it will, it must be in virtue of the Constitution of the United States and of some law of Congress conformable thereto. The part of the Constitution concerning the Judicial Power is as follows, viz:

Art.3. sect. 2. The Judicial Powser shall extend

(1) 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;

(2) To all cases affecting Ambassadors, or other public Ministers, and Consuls;

(3) To all cases of Admiralty and Maritime Jurisdiction;

(4) To controversies to which the [p431] United States shall be a party;

(5) 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 or the citizens thereof and foreign states, citizens or subjects.

The Constitution therefore provides for the jurisdiction wherein a State is a party in the following instances: 1st. Controversies between two or more States. 2nd. Controversies between a State and citizens of another State. 3rd. Controversies between a State, and foreign states, citizens, or subjects. And it also provides that, in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.

The words of the general Judicial Act conveying the authority of the Supreme Court under the Constitution, so far as they concern this question, are as follow:

Sect. 13. 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 Vice-Consul, shall be a party.

The Supreme Court hath therefore First. Exclusive jurisdiction in every controversy of a civil nature: 1st. Between two or more States. 2nd Between a State and a foreign state. 3rd. Where a suit or proceeding is depending against Ambassadors, other public ministers, or their domestics, or domestic servants. Second. Original, but not exclusive jurisdiction. 1st. Between a State and citizens of other States. 2nd. Between a State and foreign citizens or subjects. 3rd. Where a suit is brought by Ambassadors, or other public ministers. 4th. Where a consul or vice-consul, is a party. The suit now before the Court (if maintainable at all) comes within the latter description, it being a suit against a State by a citizen of another State.

The Constitution is particular in expressing the parties who may be the objects of the jurisdiction in any of these cases, but in respect to the subject matter upon which such jurisdiction is to be exercised, uses the word "controversies" only. The act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution which I do not doubt every reasonable man will think well warranted, for it [p432] cannot be presumed that the general word "controversies" was intended to include any proceedings that relate to criminal cases, which, in all instances that respect the same Government only, are uniformly considered of a local nature, and to be decided by its particular laws. The word "controversy" indeed, would not naturally justify any such construction, but nevertheless it was perhaps a proper instance of caution in Congress to guard against the possibility of it.

A general question of great importance here occurs. What controversy of a civil nature can be maintained against a State by an individual? The framers of the Constitution, I presume, must have meant one of two things: either 1. 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 are full and discretionary, within the restrictions of the Constitution itself), to refer to antecedent laws for the construction of the general words they use; or, 2. to enable Congress in all such cases to pass all such laws as they might deem necessary and proper to carry the purposes of this Constitution into full effect, either absolutely at their discretion, or at least in cases where prior laws were deficient for such purposes, if any such deficiency existed.

The Attorney General has indeed suggested another construction, a construction, I confess that I never heard of before, nor can I now consider it grounded on any solid foundation, though it appeared to me to be the basis of the Attorney General's argument. His construction I take to be this:

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 the legislature has prescribed methods of doing so, or not.

My conception of the Constitution is entirely different. I conceive that all the courts of the United States must receive not merely their organization as to the number of judges of which they are to consist; but all their authority as to the manner of their proceeding, from the legislature only. This appears to me to be one of those cases, with many others, in which an article of the Constitution cannot be effectuated without the intervention of the legislative authority. There being many such, at the end of the special enumeration of the powers of Congress in the Constitution, is this general one:

To make all laws which shall be necessary and proper for carrying into execution the foregoing Powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof.

None will deny that an act of Legislation is necessary to say, at least of what number the judges are to consist; the President with the consent of the Senate could not nominate a number at their [p433] discretion. The Constitution intended this article so far at least to be the subject of a legislative act. Having a right thus to establish the Court, and it being capable of being established in no other manner, I conceive it necessary follows that they are also to direct the manner of its proceedings. Upon this authority, there is, that I know, but one limit — that is, "that they shall not exceed their authority." If they do, I have no hesitation to say that any act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others, which we are not only bound to consult, but sworn to observe; and therefore, where there is an interference, being superior in obligation to the other, we must unquestionably obey that in preference. Subject to this restriction, the whole business of organizing the Courts, and directing the methods of their proceeding where necessary, I conceive to be in the discretion of Congress. If it shall be found on this occasion or on any other that the remedies now in being are defective for any purpose it is their duty to provide for, they no doubt will provide others. It is their duty to legislate so far as is necessary to carry the Constitution into effect. It is ours only to judge. We have no reason, nor any more right, to distrust their doing their duty than they have to distrust that we all do ours. There is no part of the Constitution that I know of that authorises this Court to take up any business where they left it, and, in order that the powers given in the Constitution may be in full activity, supply their omission by making new laws for new cases — or, which I take to be the same thing, applying old principles to new cases materially different from those to which they were applied before.

With regard to the Attorney General's doctrine of incidents, that was founded entirely on the supposition of the other I have been considering. The authority contended for is certainly not one of those necessarily incident to all courts merely as such.

If therefore, this Court is to be (as I consider it) the organ of the Constitution and the law, not of the Constitution only, in respect to the manner of its proceeding, we must receive our directions from the legislature in this particular, and have no right to constitute ourselves an ossicina brevium, or take any other short method of doing what the Constitution has chosen (and, in my opinion, with the most perfect propriety) should be done in another manner.

But the act of Congress has not been altogether silent upon this subject. The 14th sect. of the Judicial Act provides in the following words:

All the before mentioned courts of the United States shall have power to issue writs of fiere facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective [p434] jurisdictions, and agreeable to the principles and usages of law.

These words refer as well to the Supreme Court as to the other Courts of the United States. Whatever writs we issue that are necessary for the exercise of our jurisdiction must be agreeable to the principles and usages of law. This is a direction, I apprehend, we cannot supersede because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the legislature did not chuse to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of courts of justice which the Attorney General in another case reprobated with so much warmth, and with whose sentiments in that particular I most cordially join. The principles of law to which references is to be had either upon the general ground I first alluded to, or upon the special words I have above cited from the Judicial Act, I apprehend, can be either, 1st. those of the particular laws of the State against which the suit is brought, or, 2nd., principles of law common to all the States. I omit any consideration arising from the word "usages," though a still stronger expression. In regard to the principles of the particular laws of the State of Georgia, if they in any manner differed, so as to effect this question, from the principles of law common to all the States, it might be material to enquire whether there would be any propriety or congruity in laying down a rule of decision which would induce this consequence — that an action would lie in the Supreme Court against some States whose laws admitted of a compulsory remedy against their own Governments, but not against others wherein no such remedy was admitted, or which would require, perhaps, if the principle was received, fifteen different methods of proceeding against States, all standing in the same political relation to the general Government, and none having any pretence to a distinction in its favor, or justly liable to any distinction to its prejudice. If any such difference existed in the laws of the different States, there would seem to be a propriety, in order to induce uniformity (if a constitutional power for that purpose exists) that Congress should prescribe a rule, fitted to this new case, to which no equal, uniform, and impartial mode of proceeding could otherwise be applied.

But this point, I conceive, it is unnecessary to determine, because I believe there is no doubt that neither in the State now in question nor in any other in the Union, any particular legislative mode, authorizing a compulsory suit for the recovery of money against a State, was in being either when the Constitution [p435] was adopted, or at the time the Judicial Act was passed. Since that time, an Act of Assembly for such a purpose has been passed in Georgia. But that surely could have no influence in the construction of an act of the Legislature of the United States passed before.

The only principles of law, then, that can be regarded are those common to all the States. I know of none such which can affect this case but those that are derived from what is properly termed "the common law," a law which I presume is the groundwork of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of legislation controls it, to be in force in each State as it existed in England (unaltered by any statute) at the time of the first settlement of the country. The statutes of England that are in force in America differ perhaps in all the States, and therefore it is probable the common law in each is in some respects different. But it is certain that, in regard to any common law principle which can influence the question before us, no alteration has been made by any statute which could occasion the least material difference, or have any partial effect. No other part of the common law of England, it appears to me, can have any reference to this subject but that part of it which prescribes remedies against the Crown. Every State in the Union, 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 Executive nature, or which particularly concerns 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 the 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 is also goes further. Where certain parties 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 [p436] 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, to be sure, 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 externals only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose. That surely can refer only to such controversies in which a State can be a part, in respect to which, if any question arises, it can be determined, according to the principles I have supported, in no other manner than by a reference either to preexistent laws or laws passed under the Constitution and in conformity to it.

Whatever be the true construction of the Constitution in this particular — whether it is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the legislature to provide laws for the decision of all possible controversies in which a State may be involved with an individual, without regard to any prior exemption — yet it is certain that the legislature has in fact proceeded upon the former supposition, and not upon the latter. For, besides what I noticed before as to an express reference to principles and usages of law as the guide of our proceeding, it is observable that, in instances like this before the Court, this Court hath a concurrent jurisdiction only, the present being one of those cases where, by the Judicial Act, this Court hath original, but not exclusive, jurisdiction. This Court, therefore, under that Act, can exercise no authority in such instances but such authority as from the subject matter of it may be exercised in some other court. There are no courts with which such a concurrence can be suggested but the Circuit Courts, or courts of the different States. With the former it cannot be, 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 I am strongly inclined), yet there are no words in the definition of the powers of the Circuit Court which give a colour 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, however, such a jurisdiction, by the very terms of their authority, could be only concurrent with the courts of the several States. It follows, therefore, unquestionably, I think, that looking at the act of Congress, which I consider is on this occasion the limit of our authority (whatever further might be constitutionally, enacted), we can exercise no authority in the present instance [p437] consistently with the clear intention of the Act, but such as a proper State Court would have been at least competent to exercise at the time the Act was passed.

If, therefore, no new remedy be provided (as plainly is the case), and consequently we have no other rule to govern us but the principles of the preexistent laws, which must remain in force till superseded by others, then it is incumbent upon us to enquire whether, previous to the adoption of the Constitution (which period, or the period of passing the law in respect to the object of this enquiry, is perfectly equal), an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law, which I have shown to be alone applicable. If it could, I think it is now maintainable here. If it could not, I think, as the law stands at present, it is not maintainable, whatever opinion may be entertained upon the construction of the Constitution as to the power of Congress to authorize such a one. Now I presume 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 admissible in respect to claims against the 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 colour, 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. Whether that remedy was strictly applicable or not, still I apprehend there was no other. The only remedy in a case like that before the Court, by which, by any possibility, a suit can be maintained against the Crown in England, or could be at any period from which the common law, as in force in America, could be derived, I believe is that which is called a petition of right. It is stated, indeed, in Com.Dig. 105, that "until the time of Edward I, the King might have been sued in all actions as a common person." And some authorities are cited for that position, though it is even there stated as a doubt. But the same authority adds "but now none can have an action against the King, but one shall be put to sue to him by petition." This appears to be a quotation or abstract from Theloall's Digest, which is also one of the authorities quoted in the former case. And this book appears (from the law catalogue) to have been printed so long ago as the year 1579. The same doctrine appears (according to a quotation in Blackstone's Commentaries, I Vol. 243) to be stated in Finch's Law 253, the first edition of which, it seems, was published in 1579. This also more fully appears in the case of the Bankers, and particularly from the celebrated argument of Lord [p438] Somers, in the time of W. III., for, though that case was ultimately decided against Lord Somers' opinion, yet the ground on which the decision was given no way invalidates the reasoning of that argument so far as it respects the simple case of a sum of money demandable from the King and not by him secured on any particular revenues. The case is reported in Freeman, Vol. 1. p. 331. 5 Mod. 29; Skinn. 601, and lately, very elaborately, in a small pamphlet published by Mr. Hargrave which contains all the reports at length, except Skinner's, together with the argument at large of Lord Somers, besides some additional matter.

The substance of the case was as follows: King Charles II, having received large sums of money from bankers on the credit of the growing produce of the revenue, for the payment of which tallies and orders of the Exchequer were given (afterwards made transferable by statute), and the payment of these having been afterward postponed, the King at length, in order to relieve the Bankers, in 1677, granted annuities to them, out of the hereditary Excise, equal to 6 percent interest on their several debts, but redeemable on payment of the principal. This interest was paid 'till 1683, but it then became in arrears, and continued so at the Revolution; and the suits which were commenced to enforce the payment of these arrears were the subject of this case. The Bankers presented a petition to the Barons of the Exchequer for the payment of the arrears of the annuities granted, to which petition the Attorney General demurred. Two points were made: first, whether the grant out of the Excise was good; second, whether a petition to the Barons of the Exchequer was a proper remedy. On the first point, the whole Court agreed that, in general, the King could alienate the revenues of the Crown; but Mr. Baron Lechmore differed from the other Barons by thinking that this particular revenue of the Excise was an exception to the general rule. But all agreed that the petition was a proper remedy. Judgment was therefore given for the petition by directing payment to the complainants at the receipt of the Exchequer. A writ of error was brought on this judgment by the Attorney General in the Exchequer Chamber. There, all the judges who argued held the grant out of the Excise good. A majority of them, including Lord Chief Justice Holt, also approved of the remedy by petition to the Barons. But Lord Chief Justice Treby was of opinion that the Barons of the Exchequer were not authorised to make order for payments on the receipt of the Exchequer, and therefore that the remedy by petition to the Barons was inapplicable. In this opinion, Lord Somers concurred. A doubt then arose whether the Lord Chancellor and Lord High Treasurer were at liberty to give judgment according to their own [p439] opinion, in opposition to that of a majority of the attendant judges; in other words, whether the judges called by the Lord Chancellor and Lord High Treasurer were to be considered as mere assistants to them, without voices. The opinion of the judges being taken on this point, seven against three held that the Lord Chancellor and Lord Treasurer were not concluded by the opinions of the judges, and therefore that the Lord Keeper in the case in question, there being then no Lord Treasurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reversed the judgment of the Court of Exchequer. But the case was afterwards carried by error into Parliament, and there the Lords reversed the judgment of the Exchequer Chamber and affirmed that of the Exchequer. However, notwithstanding this final decision in favour of the Bankers and their creditors, it appears by a subsequent statute that they were to receive only one half of their debts; the 12 and 14 W. 3, after appropriating certain sums out of the hereditary Excise for public uses, providing that, in lieu of the annuities granted to the Bankers and all arrears, the hereditary Excise should, after the 26th of December 1601, be charged with annual sums equal to an interest of three per cent, till redeemed by payment of one moiety of the principal sums. Hargrave's Case of the Bankers, 1, 2, 3.

Upon perusing the whole of this case, these inferences naturally follow: 1st. That admitting the authority of that decision in its fullest extent, yet it is an authority only in respect to such cases, where letters patent from the Crown have been granted for the payment of certain sums out of a particular revenue. 2nd. That such relief was grantable in the Exchequer, upon no other principle than that that Court had a right to direct the issues of the Exchequer as well after the money was deposited there as while (in the Exchequer language) it was in transitu. 3rd. That such an authority could not have been exercised by any other court in Westminster Hall, or by any court that, from its particular constitution, had no controul over the revenues of the Kingdom. Lord C. J. Holt and Lord Somers (though they differed in the main point) both agreed in that case that the Court of King's Bench could not send a writ to the Treasury. Hargrave's Case, 45, 89. Consequently, no such remedy could, under any circumstances, I apprehend, be allowed in any of the American States, in none of which it is presumed any court of justice hath any express authority over the revenues of the State such as has been attributed to the Court of Exchequer in England.

The observations of Lord Somers concerning the general remedy by petition to the King have been extracted and referred to by some of the ablest law characters since, particularly by [p440] Lord C. Baron Comyns in his digest. I shall therefore extract some of them, as he appears to have taken uncommon pains to collect all the material learning on the subject, and indeed is said to have expended several hundred pounds in the procuring of records relative to their case. Hargrave's preface to the case of the Bankers.

After citing many authorities, Lord Somers proceeds thus:

By all these authorities, and by many others which I could cite, both ancient and modern, it is plain that, if the subject was to recover a rent, or annuity, or other charge from the Crown; whether it was a rent or annuity originally granted by the King, or issuing out of lands, which by subsequent title came to be in the King's hands; in all cases, the remedy to come at it was by petition to the person of the King; and no other method can be shown to have been practised at common law. Indeed, I take it to be generally true that, in all cases where the subject is in the nature of a plaintiff, to recover anything from the King, his only remedy, at common law, is to sue by petition to the person of the King. I say, where the subject comes as a plaintiff. For, as I said before, when, upon a title found for the King by office, the subject comes in to traverse the King's title, or to show his own right, he comes in the nature of a defendant, and is admitted to interplead in the case with the King in defense of his title, which otherwise would be defeated by finding the office. And to show that this was so, I would take notice of several instances. That, in cases of debts owing by the Crown, the subject's remedy was by petition appears by Aynesham's Case, Ryley 251, which is a petition for 19. due for work done at Carnarvon castle. So Ryley 251. The executors of John Estrateling petition for 132. due to the testator for wages. The answer is remarkable, for there is a latitude taken, which will very well agree with the notion that is taken up in this case; Habeant bre. de liberate in Canc. thes. & camerar. de 32. in partem solutionis. So the case of Yerward de Galeys, for 56. Ryley 414. In like manner in the same book 253.33. Ed. I. several parties sue by petition for money and goods taken for the King's use, and also for wages due to them, and for debts owing to them by the King. The answer is, Rex ordinavit per concilium thesaurarii & baronum de scaecario, quod satisfiet iis quam citius fieri poterit; ita quod contertos se tenebunt. And this is an answer given to a petition presented to the King in Parliament, and therefore we have reason to conclude it to be warranted by law. They must be content, and they shall be paid, quam citius fieri poterit. The parties in these cases first go to the King by petition: it is by him they are sent to the Exchequer, and it is by writ under the great seal that the Exchequer is impowered to act. Nor can [p441] any such writ be found (unless in a very few instances, where it is mere matter of account) in which the Treasurer is not joined with the Barons. So far was it from being taken to be law at that time that the Barons had any original power of paying the King's debts, or of commanding annuities, granted by the King or his progenitors to be paid when the person applied to them for such payment. But perhaps it may be objected that it is not to be inferred, because petitions were brought in these cases, that therefore it was of necessity that the subject should pursue that course, and could take no other way. It might be reasonable to require from those who object thus that they should produce some precedents at least, of another remedy taken. But I think there is a good answer to be given to this objection. All these petitions which I have mentioned are after the Stat. 8 Ed. I., Ryley 442, where notice is taken that the business of Parliament is interrupted by a multitude of petitions, which might be redressed by the Chancellor and Justices. Wherefore it is thereby enacted that petitions which touch the seal shall come first to the Chancellor; those which touch the Exchequer, to the Exchequer; and those which touch the Justices, or the law of the land, should come to the Justices; and if the business be so great, or st de grace that the Chancellor, or others, cannot do them without the King, then the petitions shall be brought before the King to know his pleasure, so that no petitions come before the King and his Council but by the hands of the Chancellor, and other chief Ministers; that the King and his Council may attend the great affairs of the King's Realm, and his sovereign dominions.

This law being made, there is reason to conclude that all petitions brought before the King or Parliament after this time, and answered there, were brought according to the method of this law, and were of the nature of such petitions as ought to be brought before the person of the King. And that petitions did lie for a chattel, as well as for a freehold, does appear, 37 Ass. pl ii. Bro.Pet. 17. If tenant by the statute merchant be ousted, he may have petition, and shall be restored. Vide 9 H.4.4. Bro.Pet. 9. 9. H. 6. 21. Bro.Pet. 2. If the subject be ousted of his term, he shall have his petition. 7. H.7.ii. Of a chattel real, a man shall have his petition of right, as of his freehold. 34. H. 6.51. Bro.Pet. 3. A man shall have a petition of right for goods and chattels, and the King indorses it in the usual form. It is said indeed, 1 H.7.3. Bro.Pet. 19., that a petition will not lie of a chattel. And, admitting there was any doubt as to that point, in the present suit, we are in the case of a freehold.

Lord Somers' argument in Hargrave's Case of the Bankers, 103 to 105.

The solitary case, noticed at the conclusion of Lord Somers' argument, "that a petition will not lie of a chattel," certainly [p442] is deserving of no consideration, opposed to so many other instances mentioned, and unrecognized (as I believe it is) by any other authority either ancient or modern, whereas the contrary, it appears to me, has long been received and established law. In Comyns' Dig. 4 Vol. 458, it is said expressly "suit shall be to the King by petition, for goods as well as for land." He cites Staundf.Prar. 75. b. 72. b. for his authority, and takes no notice of any authority to the contrary. The same doctrine is also laid down with equal explicitness, and without noticing any distinction whatever, in Blackstone's Commentaries, 3 Vol. 256, where he points out the petition of right as one of the common law methods of obtaining possession or restitution from the Crown, either of real or personal property, and says expressly the petition of right

is of use where the King is in full possession of any hereditaments or chattels, and the petitioner suggests such a right as controverts the title of the Crown, grounded on facts disclosed in the petition itself.

I leave out of the argument, from which I have made so long a quotation, everything concerning the restriction on the Exchequer so far as it concerned the case then before the Court, as Lord Somers (although more perhaps by weight of authority than reasoning) was overruled in that particular. As to all others, I consider the authorities on which he relied, and his deduction from them, to be unimpeached.

Blackstone, in the first volume of his commentaries (p. 203), speaking of demands in point of property upon the King, states the general remedy thus:

If any person has, in point of property, a just demand upon the King, he must petition him in his Court of Chancery, where his Chancellor will administer right, as a matter of grace, though not upon compulsion. [For which he cites Finch L. 255.] . . . And this is exactly consonant to what is laid down by the writers on natural law. A subject, say Puffendorf, so long as he continues a subject, hath no way to oblige his Prince to give him his due when he refuses it, though no wise Prince will ever refuse to stand to a lawful contract. And if the Prince gives the subject leave to enter an action against him upon such contract in his own courts, the action itself proceeds rather upon natural equity than upon the municipal laws. For the end of such action is not to compel the Prince to observe the contract, but to persuade him.

It appears that when a petition to the person of the King is properly presented, the usual way is for the King to indorse or underwrite, soit droit sait al partie (let right be done to the party), upon which, unless the Attorney General confesses the suggestion, a commission is issued to enquire into the truth of it, after the return of which, the King's attorney is at liberty to [p443] plead in bar, and the merits shall be determined upon issue or demurrer, as in suits between subject and subject. If the Attorney General confesses the suggestion there is no occasion for a commission, his admission of the truth of the facts being equally conclusive as if they had been found by a jury. See 3 Blackstone's Commentaries 256. and 4 Com. Dig. 458, and the authorities there cited. Though the above-mentioned indorsement be the usual one, Lord Somers, in the course of his voluminous search, discovered a variety of other answers to what he considered were unquestionable petitions of right, in respect to which he observes:

The truth is, the manner of answering petitions to the person of the King was very various, which variety did sometimes arise from the conclusion of the party's petition, sometimes from the nature of the thing, and sometimes from favour to the person; and according as the indorsement was, the party was sent into Chancery or the other courts. If the indorsement was general, soit droit fait al partie, it must be delivered to the Chancellor of England, and then a commission was to go to find the right of the party, and that being found, so that there was a record so rhim, thus warranted, he is let in to interplead with the King; but if the indorsement was special, then the proceeding was to be according to the indorsement in any other Court. This is fully explained by Stamford (Staundfort) in his treatise of the Prerog. c. 22. The case Mich. 10 H. 4.4.no. 8. is full as to this matter. The King recovers in a quare impedit by default against one who was never summoned; the party cannot have a writ of deceit without a petition. If then, says the book, he concludes his petition generally "que le Roy lui face droit" (that the King will cause right to be done) and the answer be general, it must go into the Chancery that the right may inquired of by commission; and, upon the inquest found, an original writ must be directed to the Justices to examine the deceit; otherwise, the Justices, before whom the suit was, cannot meddle. But if he conclude his petition especially that it may please his Highness to command his Justices to proceed to the examination, and the indorsement be accordingly that had given the Justices a jurisdiction. They might in such case have proceeded upon the petition without any commission, or any writ to be sued out; the petition and answer indorsed giving a sufficient jurisdiction to the Court to which it was directed. And as the book I have mentioned proves this, so many other authorities may be cited.

He accordingly mentions many other instances, immaterial to be recited here, particularly remarking a very extraordinary difference in the case belonging to the revenue, in regard to which he said, he thought there was not an instance to be found where petitions were answered, soit droit fait aux parties (let right be done [p444] to the parties). The usual reference appears to have been to the Treasurer and Barons, commanding them to do justice. Sometimes a writ under the great seal was directed to be issued to them for that purpose. Sometimes a writ from the Chancery directing payment of money immediately, without taking notice of the Barons. And other varieties appear to have taken place. See Hargrave's Case of the Bankers, p. 73, & seq. But in all cases of petition of right, of whatever nature is the demand, I think it is clear beyond all doubt that there must be some indorsement or order of the King himself to warrant any further proceedings. The remedy, in the language of Blackstone, being a matter of grace, and not on compulsion.

In a very late case in England, this point was incidentally discussed. The case I refer to is the case of Macbeath against Haldimand, reported first Durnford & East 172. The action was against the defendant, for goods furnished by the defendant's order in Canada, when the defendant was Governor of Quebec. The defence was that the plaintiff was employed by the defendant in his official capacity, and not upon his personal credit, and that the goods being therefore furnished for the use of Government, and the defendant not having undertaken personally to pay, he was not liable. This defence was set up at the trial on the plea of the general issue, and the jury, by judge Buller's direction, found a verdict for the defendant. Upon a motion for a new trial, he reported particularly all the facts given in evidence, and said his opinion had been at the trial that the plaintiff should be nonsuited;

but the plaintiff's counsel appearing for their client, when he was called, he left the question to the jury, telling them that they were bound to find for the defendant in point of law. And upon their asking him whether, in the event of the defendant not being liable, any other person was, he told them that was no part of their consideration, but being willing to give them any information, he added that he was of opinion that if the plaintiff's demands were just, his proper remedy was by a petition of right to the Crown. On which they found a verdict for the defendant. The rule for granting a new trial was moved for, on the misdirection of two points. 1st. That the defendant had by his own conduct made himself liable, which question should have been left to the jury. 2ndly. That the plaintiff had no remedy against the Crown by a petition of right, on the supposition of which the jury had been induced to give their verdict. . . . Lord Mansfield, Chief Justice, now declared that the Court did not feel it necessary for them to give any opinion on the second ground. His Lordship said that great difference had arisen since the revolution with respect to the expenditure of the public money. Before that period, all the public supplies were given to the King, who in [p445] his individual capacity contracted for all expenses. He alone had the disposition of the public money. But since that time, the supplies had been appropriated by Parliament to particular purposes, and now, whoever advances money for the public service trusts to the faith of Parliament. That, according to the tenor of Lord Somers' argument in the Bankers Case, though a petition of right would lie, yet it would probably produce no effect. No benefit was ever derived from it in the Bankers Case, and Parliament was afterwards obliged to provide a particular fund for the payment of those debts. Whether, however, this alteration in the mode of distributing the supplies had made any difference in the law upon this subject it was unnecessary to determine; at any rate, if there were a recovery against the Crown, application must be made to Parliament, and it would come under the head of supplies for the year.

The motion was afterwards argued on the other ground (with which I have at present nothing to do) and rejected.

In the old authorities, there does not appear any distinction between debts that might be contracted personally by the King for his own private use and such as he contracted in his political capacity for the service of the kingdom. As he had however then fixed and independent revenues, upon which depended the ordinary support of Government as well as the expenditure for his own private occasions, probably no material distinction at that time existed, or could easily be made. A very important distinction may however perhaps now subsist between the two cases, for the reasons intimated by Lord Mansfield; since the whole support of Government depends now on Parliamentary provisions, and, except in the case of the civil list, those for the most part annual.

Thus, it appears that, in England, even in case of a private debt contracted by the King in his own person, there is no remedy but by petition, which must receive his express sanction; otherwise there can be no proceeding upon it. If the debt contracted be avowedly for the public uses of Government, it is at least doubtful whether that remedy will lie; and if it will, it remains afterwards in the power of Parliament to provide for it or not among the current supplies of the year.

Now let us consider the case of a debt due from a State. None can, I apprehend, be directly claimed but in the following instances. 1st. In case of a contract with the legislature itself. 2nd. In case of a contract with the Executive, or any other person, in consequence of an express authority from the legislature. 3rd. In case of a contract with the Executive without any special authority. In the first and second cases, the contract is evidently made on the public faith alone. Every man must know that no suit can lie against a legislative body. His only [p446] dependence therefore can be that the legislature, on principles of public duty, will make a provision for the execution of their own contracts, and if that fails, whatever reproach the legislature may incur, the case is certainly without remedy in any of the courts of the State. It never was pretended, even in the case of the Crown in England, that if any contract was made with Parliament, or with the Crown by virtue of an authority from Parliament, that a Petition to the Crown would in such case lie. In the third case, a contract with the Governor of a State without any special authority. This case is entirely different from such 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 interest, 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. A Governor of a State is a mere Executive officer, his general authority very narrowly limited by the Constitution of the State, with no undefined or disputable prerogatives; without power to effect one shilling of the public money, but as he is authorised under the Constitution, or by a particular law; having no colour to represent the sovereignty of the State, so as to bind it in any manner to its prejudice, unless specially authorised thereto. And therefore all who contract with him do it at their own peril, and are bound to see (or take the consequence of their own indiscretion) that he has strict authority for any contract he makes. Of course, such contract, when so authorised, will come within the description I mentioned of cases where public faith alone is the ground of relief, and the legislative body the only one that can afford a remedy, which, from the very nature of it, must be the effect of its discretion, and not of any compulsory process. If however any such cases were similar to those which would entitle a 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 a State could only be presented to the sovereign power, which surely the Governor is not. The only constituted authority to which such 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 further proceeding. So that this brings us (though by a different route) to the same goal — the discretion and good faith of the legislative body.

There is no other part of the common law, besides that which I have considered, which can by any person be pretended in any manner to apply to this case but that which concerns corporations. The applicability of this, the Attorney General, with great candour, has expressly waved. But as it may be [p447] urged on other occasions, and as I wish to give the fullest satisfaction, I will say a few words to that doctrine. Suppose, therefore ,it should be objected that the reasoning I have now used is not conclusive because, inasmuch as a State is made subject to the judicial power of Congress, its sovereignty must not stand in the way of the proper exercise of that power, and therefore in all such cases (though in no other) a State can only be considered as a subordinate corporation merely. I answer, 1st. That this construction can only be allowed, at the utmost, upon the supposition that the judicial authority of the United States, as it respects States, cannot be effectuated without proceeding against them in that light — a position I by no means admit. 2nd. That, according to the principles I have supported in this argument, admitting that States ought to be so considered for that purpose, an act of the legislature is necessary to give effect to such a construction, unless the old doctrine concerning corporations will naturally apply to this particular case. 3rd. That, as it is evident the act of Congress has not made any special provision in this case, grounded on any such construction, so it is to my mind perfectly clear that we have no authority, upon any supposed analogy between the two cases, to apply the common doctrine concerning corporations, to the important case now before the Court. I take it for granted that when any part of an ancient law is to be applied to a new case, the circumstances of the new case must agree in all essential points with the circumstances of the old cases to which that ancient law was formerly appropriated. Now there are, in my opinion, the most essential differences between the old cases of corporations to which the law intimated has reference, and the great and extraordinary case of States separately possessing, as to everything simply relating to themselves, the fullest powers of sovereignty, and yet in some other defined particulars subject to a superior power composed out of themselves for the common welfare of the whole. The only law concerning corporations to which I conceive the least reference is to be had is the common law of England on that subject. I need not repeat the observations I made in respect to the operation of that law in this country. The word "corporations," in its largest sense, has a more extensive meaning than people generally are aware of. Any body politic (sole or aggregate), whether its power be restricted or transcendant, is in this sense "a corporation." The King, accordingly, in England is called a corporation. 10 Co. 29b. So also, by a very respectable author (Sheppard, in his abridgement, 1 Vol. 431) is the Parliament itself. In this extensive sense, not only each State singly, but even the United States may without impropriety be termed "corporations." I have therefore, in contradistinction to this large and indefinite [p448] term, used the term "subordinate corporations," meaning to refer to such only (as alone capable of the slightest application, for the purpose of the objection) whose creation and whose powers are limited by law.

The differences between such corporations and the several States in the Union, as relative to the general Government, are very obvious in the following particulars. 1st. 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 create 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. 2nd. A corporation can do no act but what is subject to the 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, unless in the special instances where the general Government has power derived from the Constitution itself. 3rd. A corporation is altogether dependant on that Government to which it owes its existence. Its charter may be forfeited 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 upon it. The people of the State created, the people of the State can only 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 the Republican form. I omit minuter distinctions. These are so palpable that I never can admit that a system of law calculated for one of these cases is to be applied, as a matter of course, to the other, without admitting (as I conceive) that the distinct boundaries of law and legislation may be confounded in a manner that would make Courts arbitrary, and in effect makers of a new law, instead of being (as certainly they alone ought to be) expositors of an existing one. If still it should be insisted that. though a State cannot be considered upon the same footing as the municipal corporations I have been considering, yet, as relative to the powers of the General Government, it must be deemed in some measure dependent; admitting that to be the case (which to be sure is, so far as the necessary execution of the powers of the General Government extends), yet in whatever character this may place a State, this can only afford a reason for a new law, [p449] calculated to effectuate the powers of the General Government in this new case. But it affords no reason whatever for the Court's admitting a new action to fit a case to which no old ones apply, when the application of law, not the making of it, is the sole province of the Court.

I have now, I think, established the following particulars. 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the legislature appointing courts and prescribing their methods of proceeding. 2nd. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3rd. That there are no principles of the old law, to which, we must have recourse that in any manner authorise the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with.

From the manner in which I have viewed this subject, so different from that in which it has been contemplated by the Attorney General, it is evident that I have not had occasion to notice many arguments offered by the Attorney General which certainly were very proper, as to his extended view of the case, but do not affect mine. No part of the Law of Nations can apply to this case, as I apprehend, but that part which is termed "The Conventional Law of Nations;" nor can this any otherwise apply than as furnishing rules of interpretation, since unquestionably the people of the United States had a right to form what kind of Union, and upon what terms they pleased, without reference to any former examples. If, upon a fair construction of the Constitution of the United States, the power contended for really exists, it undoubtedly may be exercised, though it be a power of the first impression. If it does not exist, upon that authority, ten thousand examples of similar powers would not warrant its assumption. So far as this great question affects the Constitution itself, if the present afforded, consistently with the particular grounds of my opinion, a proper occasion for a decision upon it, I would not shrink from its discussion. But it is of extreme moment that no judge should rashly commit himself upon important questions which it is unnecessary for him to decide. My opinion being that, even if the Constitution would admit of the exercise of such a power, a new law is necessary for the purpose, since no part of the existing law applies, this alone is sufficient to justify my determination in the present case. So much, however, has been said on the Constitution that it may not be improper to intimate that my present opinion is strongly against any construction of it which will admit, under any circumstances, a compulsive suit against a State for the recovery of money. I [p450] think every word in the Constitution may have its full effect without involving this consequence, and that nothing but express words, or an insurmountable implication (neither of which I consider, can be found in this case) would authorise the deduction of so high a power. This opinion I hold, however, with all the reserve proper for one which, according to my sentiments in this case, may be deemed in some measure extrajudicial. With regard to the policy of maintaining such suits, that is not for this Court to consider, unless the point in all other respects was very doubtful. Policy might then be argued from with a view to preponderate the judgment. Upon the question before us, I have no doubt. I have therefore nothing to do with the policy. But I confess, if I was at liberty to speak on that subject, my opinion on the policy of the case would also differ from that of the Attorney General. It is, however, a delicate topic. I pray to God that, if the Attorney General's doctrine as to the law be established by the judgment of this Court, all the good he predicts from it may take place, and none of the evils with which, I have the concern to say, it appears to me to be pregnant.