1793.
rity of Bynkershock would justify us; and whether it be commenced in rem, or in personam, the principle of amenability is equally avowed.
3d.Nor will these sentiments be weakened by the want of a special provision in the Constitution for an execution; since it is so provided in no case, not even where States are in litigation. This will be more properly arranged under the following head concerning the judicial act.
II.1. The judicial act recognizes the jurisdiction over States. Instead of using the first expression in the Constitution, to wit, “controversies, between, &c.” it adopts the second, namely, “where a State shall be a party.” Thus it makes no distinction between a State as Plaintiff, or as Defendant; but evidently comprehends in the word “party" a State, as Defendant in one case at least, where a State is opposed to a State. This, after what has been said, need not be further pressed.
2.The master-objection is, that the law has prescribed no execution against a State; that none can be formed with propriety; and that, therefore, a judgment against a State must be abortive. It is true, that no express execution is given by the judicial act or the process act. But has it ever been insinuated, that a dispute between two States is not within Federal cognizance, because no execution is marked out? Or, that for a like reason, the Court, given by the confederation, could not proceed?
The Supreme Court are either vested with authority by the judicial act, to form an execution, or possess it as incidental to their jurisdiction. By the 14th section of the judicial act, the Supreme Court, as one of the Courts of the United States, has power to issue writs of scire facias, habeas corpus, and all other writs, not specially provided by the statue, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law. Executions for one State against another, are writs not specially provided for by statute, and are necessary for the exercise of the jurisdiction of the Supreme Courts, in a contest between States; and although, in neither the common law, nor any statute, the form of such an execution appears; yet is it agreeable to the principles and usages of law, that there should be a mode of carrying into force a jurisdiction, which is not denied. If then the Supreme Court may create a mode of execution, when a State is defeated at law by a State, why may not the same means be exerted where an individual is successful against a State? Again: The process-act, which dictates the modes of execution to the other Courts, is silent as to the Supreme Court; it must, therefore, be either wholly without executions, or derive them from the foregoing section of the judicial act, or adopt them, on the ground of in-