Chisholm v. Georgia
This action was instituted in August Term, 1792. On the 11th of July, the Marshall for the district of Georgia made the following return: “Executed as within commanded, that is to say, served a copy thereof on his excellency Edward Telfair, Esq. Governor of the State of Georgia, and one other copy on Thomas P. Carnes, Esq. the Attorney General of said State.”
“Robert Forsyth, Marshall.”
Upon which Mr. Randolph, the Attorney General of the United States, as counsel for the plaintiff, made the following motion on the 11th of August, 1792. “That unless the State of Georgia, shall, after reasonable previous notice of this motion, cause an appearance to be entered, in behalf of the said State, on the fourth day of the next Term, or shall then shew cause to the contrary, judgment shall be entered against the said State, and a writ of enquiry of damages shall be awarded.” But to avoid every appearance of precipitancy, and to give the State time to deliberate on the measures she ought to adopt, on motion of Mr. Randolph, it was ordered by the Court, that the consideration of this motion should be postponed to the present Term. And now Ingersoll, and Dallas, presented to the Court a written remonstrance and protestation on behalf of the State, against the exercise of jurisdiction in the cause; but, in consequence of positive instructions, they declined taking any part in arguing the question. The Attorney General, therefore, proceeded as follows.
Randolph, for the plaintiff.I did not want the remonstrance of Georgia, to satisfy me, that the motion, which I have made is unpopular. Before that remonstrance was read, I had learnt from the acts of another State, whose will must be always dear to me, that she too condemned it. On ordinary occasions, these dignified opinions might influence me greatly; but on this, which brings into question a constitutional right, supported by my own conviction, to surrender it would in me be official perfidy.
It has been expressed, as the pleasure of the Court, that the motion should be discussed, under the four following forms:
1st.Can the State of Georgia, being one of the United States of America, be made a party-defendant in any case, in the Supreme Court of the United States, at the suit of a private citizen, even although he himself is, and his testator was, a citizen of the State of South-Carolina?
2d.If the State of Georgia can be made a party defendant in certain cases, does an action of assumpsit lie against her?
3d.Is the service of the summons upon the Governor and Attorney General of the State of Georgia, a competent service?
4th.By what process ought the appearance of the State of Georgia to be enforced?
1st.The Constitution and Judicial Law are the sources from which the jurisdiction of the Supreme Court is derived. The effective passages in the Constitution are in the second section of the third article. “The judicial power shall extend to controversies between a State and citizens of another State” “In cases, in which a State shall be a party, the Supreme Court shall have original jurisdiction.” The judicial act thus organizes the jurisdiction, delineated by the Constitution. “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 and aliens, in which latter case, it shall have original, but not exclusive jurisdiction.”
Upon this basis we contend,
1st.That the Constitution vests a jurisdiction in the Supreme Court over a State, as a defendant, at the suit of a private citizen of another State.
2d.That the judicial act recognizes that jurisdiction.
1st.The Constitution vests a jurisdiction in the Supreme Court over a State, as a defendant, at the suit of a private citizen of another State. Consult the letter of the Constitution, or rather the influential words of the clause in question. The judicial power is extended to controversies between a State and citizens of another State. I pass over the word, “between,” as in no respect indicating who is to be Plaintiff or who Defendant. In the succeeding paragraph, we read a comment on these words, when it is said, that in cases, in which a State shall be a party, the Supreme Court shall have original jurisdiction. Is not a defendant a party as well as a plaintiff? If authority 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 law impairing the obligation of contracts; should, without the consent of Congress, lay imposts or duties on imports or exports, with certain exceptions; should, without the consent of Congress, lay any duty on tonnage, or keep troops or ships of war in times of peace; these are expressly prohibited by the Constitution; and thus is announced to the world the probability, but certainly the apprehension, that States may injure individuals in their property, their liberty, and their lives; may oppress sister States; and may act in derogation of the general sovereignty.
Are States then to enjoy the high priviledge of acting thus eminently wrong, without controul; or does a remedy exist? The love of morality would lead us to wish that some check should be found; if the evil, which flows from it, be not too great for the good contemplated. The common law has established a principle, that no prohibitory act shall be without its vindicatory quality; or, in other words, that the infraction of a prohibitory law, although an express penalty be omitted, is still punishable. Government itself would be useless, if a pleasure to obey or transgress with impunity should be substituted in the place of a sanction to its laws. This was a just cause of complaint against the deceased confederation. In our solicitude for a remedy, we meet with no difficulty, where the conduct of a State can be animadverted on through the medium of an individual. For instance, without suing a State, a person arrested may be liberated by habeas corpus; a person attainted and a convict under an ex post facto law, may be saved; those, who offend against improper treaties, may be protected, or who execute them, may be punished; the actors under letters of marque and reprisal may be mulcted; coinage, bills of credit, unwarranted tenders, and the impairing of contracts between individuals, may be annihilated. But this redress goes only half way; as some of the preceeding unconstitutional actions must pass without censure, unless States can be made defendants. What is to be done, if in consequence of a bill of attainder, or an ex post facto law, the estate of a citizen shall be confiscated, and deposited in the treasury of a State? What if a State should adulterate or coin money below the Congressional standard, emit bills of credit, or enact unconstitutional tenders, for the purpose of extinguishing its own debts? What if a State should impair her own contracts? These evils, and others which might be enumerated like them, cannot be corrected without a suit against the State. It is not denied, that one State may be sued by another; and the reason would seem to be the same, why an individual, who is aggrieved, should sue the State aggrieving. A distinction between the cases is supportable only on a supposed comparative inferiority of the 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 be believed. The crest of war is next raised; the Federal head cannot remain unmoved amidst these shocks to the public harmony. Ought then a necessity to be created for drawing out the general force on an occasion so replete with horror? Is not an adjustment by a judicial form far preferable? Are not peace and concord among the States two of the great ends of the Constitution? To be consistent, the opponents of my principles must say, that a State may not be sued by a foreigner.—What? Shall the tranquillity of our country be at the mercy of every State? Or, if it be allowed, that a State may be sued by a foreigner, why, in the scale of reason, may not the measure be the same, when the citizen of another State is the complainant? Nor is the history of confederacies wholly deficient in analogy; although a very strict one is scarcely to be expected. A parade of deep research into the Amphyctionic Council, or the Achæan league, would be fruitless, from the dearth of historical monuments. With the best lights they would probably be found, not to be positively identical with our union. So little did they approach to a National Government, that they might well be destitute of a common judicatory. So ready were the ancient Governments to merge the injuries to individuals in a State quarrel, and so certain was it, that any judicial decree must have been enforced by arms, that the mild form of a legal discussion could not but be viewed with indifference, if not contempt. And yet it would not be extravagant to conjecture, that all civil causes were sustained before the Amphyctionic Council. What we know of the Achæan confederacy, exhibits it as purely national, or rather consolidated.—They had common Magistrates taken by rotation, from the towns; and the amenability of the constituent cities to some Supreme Tribunal, is as probable as otherwise. But, in fact, it would be a waste of time, to dwell upon these obscurities. To catch all the semblances of confederacies, scattered through the historic page, would be no less absurd, than to search for light in regions of darkness, or a stable jurisprudence in the midst of barbarity and bloodshed. Advancing then, into more modern times, the Helvetic Union presents itself; one of whose characteristics is, that there is no common judicatory. Stanyan, 117. Nor, does it obtain in Holland. But it cannot be concluded from hence, that the Swiss or the Dutch, the jealousy of whom would not suffer them to adopt a National Government, would deem it an abasement, to summon a State, connected as the United States are, before a National Tribunal. But our anxiety for precedents is relieved by appealing to the Germanic Empire. The jumble of fifty principalities together no more the name of one body, than the incoherent parts of Nebuchadnazzar’s image. The Princes wage war without the consent of their paramount sovereign; they even wage war upon each other; nay upon the Emperor himself; after which it will add but little to say, that they are distinct sovereignties. And, yet both the Imperial Chamber, and the Aulic Council hear and determine the complaints of individuals against the Princes.
It will not surely be required to assign a reason, why the Confederation did not convey a similar jurisdiction; since that scanty and strict paper was of so different a hue and feature from the Constitution, as scarcely to appear the child of the same family.
I hold it, therefore, to be no degradation of sovereignty, in the States, to submit to the Supreme Judiciary of the United States. At the same time, by way of anticipating an objection, I assert, that it will not follow, from these premises, that the United States themselves may be sued. For the head of a confederacy is not within the reach of the judicial authorities of its inferior members. It is exempted by its peculiar pre-eminencies. We have indeed known petitions of right, monstrans de droit, and even process in the Exchequer. But the first is in the style of intreaty; the second, being apparent upon the record, is so far a deduction from the royal title; the third, as in the banker’s case in the 11th volume of the State trials, is applicable only, where the charge is claimed against the Revenue; and all of them are widely remote from an involuntary subjection, of the sovereign to the cognizance of his own Courts.
2d.But what if the high independency of dissevered nations remained uncontrouled among the United States, so far as to place the individual States no more within the sphere of the Supreme Court, than one independent nation is within the jurisdiction of another? It has been a contest amongst civilians, whether one Prince found within the territory of another, may be sued for a contract. I do not assert the affirmative; but it is allowable to observe, that such a position, once conceded, would illustrate and almost settle the present inquiry. But the same author, who repudiates the former idea, is strenuous in the opinion, that where the effects, or property, of one Prince are rested in the dominions of another, the proprietor Prince may be summoned before a tribunal of that other. Now, although, each State has its separate territory, in one sense, the whole is that of the United States, in another. The jurisdiction of this Court reaches to Georgia, as well as to Philadelphia. If therefore, the process could be commenced in rem, the authority 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 incidental power. The total negation of execution is obviously inadmissible; and the construction of the judicial act, which has been just insisted on, would be sufficiently efficacious. But why may not executions even spring from the will of the Supreme Court, as the writs of fieri facias, levari facias, and distringas were originally the creation of Courts? Such an incidental authority is not of a higher tone than that of fine and imprisonment, which belongs to every Court of record, without a particular grant of it. But what species of execution can be devised? This, though, a difficult task, is not impracticable. And if it were incumbent on me to anticipate the measures of the Court, I would suggest these outlines of conduct. First, that if the judgment be for the specific thing, it may be seized: or, secondly, if for damages, such property may be taken, as, upon the principles, and under the circumstances cited from Bynkershock, would be the groundwork of jurisdiction over a sovereign Prince. However, it is of no consequence, whether the conjectures be accurate or not; as a correct plan can doubtless be discovered.
Still we maybe pressed with the final question: “What if the State is resolved to oppose the execution?” This would be an awful question indeed! He, to whose lot it should fall to solve it, would be impelled to invoke the god of wisdom, to illuminate his decision. I will not believe that he would recal the tremendous examples of vengeance, which in past days have been inflicted by those who claim, against those who violate, authority. I will not believe that in the wide and gloomy theatre, over which his eye should roll, he might perchance catch a distant glimpse of the Federal arm uplifted. Scenes like these are too full of horror, not to agitate, not to rack, the imagination. But at last we must settle on this result; there are many duties, precisely defined, which the States must perform. Let the remedy which is to be administered, if these should be disobeyed, be the remedy on the occasion, which we contemplate. The argument requires no more to be said: it surely does not require us to dwell on such painful possibilities. Rather, let me hope and pray, that not a single star in the American Constellation will ever suffer its lustre to be diminished by hostility against the sentence of a Court, which itself has adopted.
But, after all, although no mode of execution should be invented, why shall not the Court proceed to judgment? It is well known, that the Courts of some States have been directed to render judgment, and there stop; and that the Chancery has often tied up the hands of the common law in a like manner. Perhaps, if a Government could be constituted without mingling at all the three orders of power, Courts should, in strict theory, only declare the law of the case, and the subject upon which the execution is to be levied; and should leave their opinions to be enforced by the Executive. But that any State should refuse to conform to a solemn determination of the Supreme Court of the Union, is impossible, until she shall abandon her love of peace, fidelity to compact, and character.
Combine then into one view, the letter and the spirit of the Constitution; the relation of the several States to the union of the States; the precedents from other sovereignties; the judicial act, and process act; the power of forming executions; the little previous importance of this power to that of rendering of judgment; the influence under which every State must be to maintain the general harmony; and the inference, will, I trust, be in favor of the first proposition; namely, that a State may be sued by the citizen of another State.
II.The next question is, whether an action of assumpsit will lie against a State? I acknowledge, that it does not follow from a State being suable in some actions, that she is liable in every action. But that of assumpsit is of all others most free from cavil. Is not a State capable of making a promise? Certainly; as a State is a moral person, being an assemblage of individuals, who are moral persons. Vat. B. 1 s. 2. On this ground, treaties and other compacts, are daily concluded between nations. On this ground the United States and the particular States have moved during and since the war. On this ground the Constitution transmitted from the old to the new Government all the obligations of the former. Without it every Government must stagnate. But I shall enter into this matter no further, as it is open for discussion in almost every stage of the cause.
III.I affirm in the third place, that the service of the summons on the Governor and Attorney-General, is a competent service. The service of process is solely for the purpose of notice to prepare for defence. The mode, if it be not otherwise prescribed by law, or long usage, is in the discretion of the Court; and here that discretion must operate. The defence must rest either upon the three branches of Government collectively, or one of them. But, as the judiciary are manifestly disjoined from such an office, and the legislative are only to provide funds to answer damages, the practice of considering the Executive, as the ostensible representative of a State, devolves upon it this function. In the instance of Georgia, her Constitution establishes the Governor as the channel of communication with the Legislature; he is bound by oath to defend her; and he has instituted a suit, now depending in this Court, in her behalf, against Brailsford, and others. It was supererogation to serve the process on the Attorney-General; although this has satisfied even etiquette itself, by notifying the officer, who is the instrument of defence.
IV.As to the steps, proper for compelling an appearance; these too, not being dictated by law, are in the breast of the Court. I banish the comparison of States with corporations; and, therefore, search for no resemblance in them. I prefer the scheme contained in the motion; because it tempers with moderation the preliminary measures; and postpones embarrassments, at any rate, until the close of the business. It is unnecessary to spend time on this head; as the mode is to me absolutely indifferent if it be effectual, and respectful.
With this discussion, though purely legal, it will be impossible to prevent the world from blending political considerations. Some may call this an attempt to consolidate. But before such an imputation shall be pronounced, let them examine well, if the fair interpretation of the Constitution does not vindicate my opinions. Above all, let me personally assure them, that the prostration of State-rights is no object with me; but that I remain in perfect confidence, that with the power, which the people and the Legislatures of the States indirectly hold over almost every movement of the National Government, the States need not fear an assault from bold ambition, or any approaches of covered stratagem.
The Court held the case under advisement, from the 5th to the 18th of February, when they delivered their opinions seriatim.
- See Anaebarsis, 3 Vol. p. 300.
- See Gast’s Hist. of Greece, p. 321.
- See Hist. of Germanic Body, p. 157, 8.
- See Bynk, c. 3, c. 4