Georgia v. Brailsford (2 U.S. 402)/Separate Wilson

by James Wilson

Wilson, Justice.⁠I confess, that I have not been able to form an opinion which is perfectly satisfactory to my own mind, upon the points that have been discussed. If Georgia has a right to the bond, it is strictly a legal right; but to enforce a strictly legal right, the present seems, at the first blush, to be an awkward and irregular proceeding. Again: Georgia had not a right, or she had a right, to be admitted to a hearing in the Circuit court: but, in the former case, it would be no ground of complaint, that her application was rejected; for, she is bound by the law; and in the other case, she would be entitled to bring the subject before us, as a court of law; since she was refused the exercise of a legal right.

It is true, that, under the Federal Constitution, an inferior tribunal cannot compel a State to appear as a party; but it is at very different proposition to say, that a State cannot, by her own consent, appear in any other court, than the Supreme court. The general rule applies among all sovereigns, who, as equals, are not amenable to courts of each other; and yet I remember an action was instituted and sustained, some years ago, in the name of Louis XVI. king of France, against Mr. Robert Morris, in the Supreme court of Pennsylvania.

Under these impressions, I am disposed to think, that the State of Georgia ought rather to have sued out a writ of error, than to have asked for an injunction: But still, in the existing circumstances of the case, I have no objection to retain the money within the power of the court, ’till we can better satisfy ourselves both as to the remedy and the right.