Chisholm, Executor, v. Georgia. 2 D. mention that the instances may rarely occur when a State may have an opportunity of suing, in the American courts, a foreign State, seems to lose sight of the policy which, no doubt, suggested this provision, namely, that no State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature. But if a foreign State, though last named, may nevertheless be a plaintiff against an individual State, how can it be said that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cases where a State is plaintiff? After describing, generally, the judicial powers of the United States, the constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party; but is not a State a party as well in the condition of a defendant as in that of a plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a plaintiff State? It seems to me that if this court should refuse to hold jurisdiction of a case where a State is defendant, it would renounce part of the authority conferred, and consequently part of the duty imposed on it by the constitution; because it would be a refusal to take cognizance of a case where a State is a party. Nor does the jurisdiction of this court, in relation to a State, seem to me to be questionable on the ground that congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual; the argument ab inutili may weigh much in cases depending upon the construction of doubtful legislative acts, but can have no force, I think, against the clear and positive directions of an act of congress and of the constitution. Let us go on as far as we can; and if, at the end of the business, not[* 452 ] withstanding the powers given us in the 14th section of the judicial law, we meet difficulties insurmountable to us, we must leave it to those departments of government which have higher powers; to which, however, there may be no necessity to have recourse. Is it altogether a vain expectation that a State may have other motives than such as arise from the apprehension of coercion, to carry into execution a judgment of the Supreme Court of the United States, though not conformable to their own ideas of justice? Besides, this argument takes it for granted that the judgment of the court will be against the State; it possibly may be in favor of the State; and the difficulty vanishes. Should judgment be given against the plaintiff, could it be said to be void because extra-judicial? If the plaintiff, grounding himself upon that notion, should. renew his suit against the State, in any mode in which she may per Chisholm, Exccutor, v. Georgia. 2 D. mit herself to be sued in her own courts, would the attorneygeneral for the State be obliged to go again into the merits of the case, because the matter, when here, was coram non judice? Might he not rely upon the judgment given by this court in bar of the new suit? To me it seems clear that he might. And if a State may be brought before this court, as a defendant, I see no reason for confining the plaintiff to proceed by way of petition; indeed there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own courts, such a method may have been established as the most respectful form of demand; but we are not now in a State court; and if sovereignty be an exemption from suit in any other than the sovereign's own courts, it follows that when a State, by adopting the constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty. With respect to the service of the summons to appear, the manner in which it has been served seems to be as proper as any which could be devised for the purpose of giving notice of the suit, which is the end proposed by it, the governor being the head of the executive department, and the attorney-general the law officer, who generally represents the State in legal proceedings: and this mode is the less liable to exception when it is considered that in the suit brought in this court by the State of Georgia against Brailsford, 2 D. 402, and others, it is conceived in the name of the governor in behalf of the State. If the opinion which I have delivered, respecting the liability of a State to be sued in this court, should be the opinion of the court, it will come in course to consider what is the proper step to be taken for inducing appearance, none having been yet entered in behalf of the defendant. A judgment by default, in the present stage of the business, and writ of inquiry of * damages would be too precipitate in any case, and too in- [* 453 ] compatible with the dignity of a State, in this. Farther opportunity of appearing to defend the suit ought to be given. The conditional order moved for the last term, the consideration of which was deferred to this, seems to me to be a very proper mode; it will warn the State of the meditated consequence of a refusal to appear, and give an opportunity for more deliberate consideration. The order, I think, should be thus: "Ordered, that unless the State of Georgia should, after due notice of this order by a service thereof upon the governor and attorney-general of the said State, cause an appearance to be entered in behalf of the State, on the 5th day of the next term, or then show cause to the contrary, judgment be then 4* Chisholm, Executor, v. Georgia. 2 D. entered up against the State, and a writ of inquiry of damages be awarded." WILSON, J. This is a case of uncommon magnitude. One of the parties to it is a State; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others more important still; and may, perhaps, be ultimately resolved into one no less radical than this "Do the people of the United States form a Nation?" A cause so conspicuous and interesting, should be carefully and accurately viewed from every possible point of sight. I shall examine it, 1st. By the principles of general jurisprudence. 2d. By the laws and practice of particular states and kingdoms. From the law of nations little or no illustration of this subject can be expected. By that law the several states and governments spread over our globe are considered as forming a society, not a nation. It has only been by a very few comprehensive minds, such as those of Elizabeth and the Fourth Henry, that this last great idea has been even contemplated. 3dly, and chiefly, I shall examine the important question before us, by the constitution of the United States, and the legitimate result of that valuable instrument. I. I am, first, to examine this question by the principles of general jurisprudence. What I shall say upon this head, I introduce by the observation of an original and profound writer, who, in the philosophy of mind, and all the sciences attendant on this prime one, has formed an era not less remarkable, and far more illustrious than that formed by the justly celebrated Bacon, in another science, not prosecuted with less ability, but less dignified as to its object; I mean the philosophy of matter. Dr. Reid, in his excellent inquiry into the human mind, on the principles of common sense, speaking [*454] of the sceptical and * illiberal philosophy which under bold, but false, pretensions to liberality, prevailed in many parts of Europe before he wrote, makes the following judicious remark: "The language of philosophers, with regard to the original faculties of the mind, is so adapted to the prevailing system, that it cannot fit any other; like a coat that fits the man for whom it was made, and shows him to advantage, which yet will fit very awkward upon one of a different make, although as handsome and well proportioned. It is hardly possible to make any innovation in our philosophy concerning the mind and its operations, without using new words and phrases, or giving a different meaning to those that are received." Chisholm, Executor, v. Georgia. 2 D. With equal propriety may this solid remark be applied to the great subject, on the principles of which the decision of this court is to be founded. The perverted use of genus and species in logic, and of impressions and ideas in metaphysics, have never done mischief so extensive or so practically pernicious, as has been done by States and sovereigns, in politics and jurisprudence; in the politics and jurisprudence even of those who wished and meant to be free. In the place of those expressions I intend not to substitute new ones; but the expressions themselves I shall certainly use for purposes different from those for which hitherto they have been frequently used; and one of them I shall apply to an object still more different from that to which it has hitherto been more frequently, I may say almost universally, applied. In these purposes, and in this application, I shall be justified by example the most splendid, and by authority the most binding; the example of the most refined as well as the most free nation known to antiquity; and the authority of one of the best constitutions known to modern times. With regard to one of the terms State this authority is declared: with regard to the other -Sovereign—the authority is implied only: but it is equally strong for, in an instrument well drawn, as in a poem well composed, silence is sometimes most expressive. To the constitution of the United States, the term sovereign is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those who ordained and established that constitution. They might have announced themselves "sovereign" people of the United States: but serenely conscious of the fact, they avoided the ostentatious declaration. Having thus avowed my disapprobation of the purposes for which the terms, State and Sovereign, are frequently used, and of the object to which the application of the last of them is almost universally made, it is now proper that I should disclose the meaning which I assign to both, and the application *which I make [* 455 | of the latter. In doing this I shall have occasion, incidentally, to evince how true it is that states and governments were made for man; and at the same time how true it is that his creatures and servants have first deceived, next vilified, and at last oppressed their master and maker. Man, fearfully and wonderfully made, is the workmanship of his all perfect Creator. A State, useful and valuable as the contrivance is, is the inferior contrivance of man, and from his native dignity derives all its acquired importance. When I speak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to Chisholm, Executor, v. Georgia. 2 D. that which is divine. Of all human contrivances, it is certainly most transcendently excellent. It is concerning this contrivance that Cicero says so sublimely, "Nothing, which is exhibited upon our globe, is more acceptable to that divinity which governs the whole universe, than those communities and assemblages of men which, lawfully associated, are denominated States." 1 Let a State be considered as subordinate to the people: but let every thing else be subordinate to the State. The latter part of this position is equally necessary with the former. For in the practice, and even at length in the science of politics, there has very frequently been a strong current against the natural order of things, and an inconsiderate or an interested disposition to sacrifice the end to the means. As the State has claimed precedence of the people; so, in the same inverted course of things, the government has often claimed precedence of the State; and to this perversion, in the second degree, many of the volumes of confusion concerning sovereignty owe their existence. The ministers, dignified very properly by the appellation of the magistrates, have wished, and have succeeded in their wish, to be considered as the sovereigns of the State. This second degree of perversion is confined to the old world, and begins to diminish even there, but the first degree is still too prevalent, even in the several States of which our Union is composed. By a State, I mean a complete body of free persons united together for their common benefit, to enjoy peaceably what is their own, and to do justice to others. It is an artificial person. It has its affairs and its interests; it has its rules; it has its rights; and it has its obligations. It may acquire property distinct from that of its members; it may incur debts to be discharged out of the public stock, not out of the private fortunes of individuals. It may be bound by contracts, and for damages aris ing from the breach of those contracts. In all our contem[* 456 ] plations, however, concerning this *feigned and artificial person, we should never forget that, in truth and nature, those who think, and speak, and act, are men. Is the foregoing description of a State a true description? It will not be questioned but it is. Is there any part of this description which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done, if engagements are not fulfilled, is it, upon general principles of right, less proper in the case of a great number, than in the case 1 Som. Scip. c. 3. |