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Page:United States Reports, Volume 2.djvu/432

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426 Cases ruled and adjudged in the rggr. rity of A%nl·er}m·.! would juitify us; and whether `it be com- vvkw menced in mn, or in pr_]iun, the principle of amcnability is equally avowed. gd. Nor will thefe fcntiments he weakened by the want of alpeeial provilion in the Conititution for an execution; lince it is fo providedinnoeafe, not __even where States are in li- tigation. This will be more properly arranged under the fol- lowing head concerning the atl. ll. r. The judicial aft recognizes the jurifdiétion over States. Inllead of ulingthe Eril exprellion in the Conlliturion, to wit, ** controrerfies, Mmm, &c.” it adopts the fecond, namelr, •• where a State {hall be a party.” Thus it makes no ` diilincition between aState as Plaintill, or as Defendant ; but evidently eomprehends in the word “ party" a State, as Defen- dant in one cafe at leafl, where a State is oppofed to a State. This, after what has been faid, need not be further preffed. z- The mailer-objctlion is, that the law has prefcribed no execution againh: a State ; that none can be formed with pro- priety ; and that, therefore, a judgment againll: a State rnull: be abortive. It is true, that no exprcfs execution is given by the judicial af]: or the procefs aét. But has it ever been inlinuat· ed, that a ditpute between twoStates is not within Federal cog- nizanee, becaufe no execution is marked out? Or, that for a like reafon, the Court, given by the confederation, could not proceed ? The Supreme Court are either veiled with authority by the judicial aft, to form an execution, or polfefs it as incidental to their jurifdiélion. By the 14th feélion of the judicial ac}, the SuprerneCourt, as oneof the Courts of the United Stem, has power to ilfue writs of jiir: lu, baden mpur, and all uber rvrih, ml_[jm·inI[r provided Gy lbefamle, may be uref jinyjirr ilu: ::0:% rf their rg[`prc?iwjury'di8iu1:, and ngreméle to tl-eprinujslrs and rjrgufqf law. Executions for one State againlt another, are vrrits not pecially provided for by ilatute, and are neeeifary for the exercife of the jurifdiflion of the Supreme Courts, in a contell: between States ; and although, in neither the common law, nor any ltatute, the form of fuch nn execu- tion appears; yet is it agreeable to the principles and ufages of law, that there lhould be a mode of carrying into force a jurill diction, which is not denied. lf then the Supreme Court may create a mode of execution, when a State is defeated at law by a State, why ma not the fame means he exerted where an indi. rridtml is fuccefstirl againft a State 9 Again: The procefs-acl, which ditlates the modes of execution to the other Courts, is tilent as to the Supreme (`ourt; it mult, therefore, bc either wholly without exeeutions, or derive them from the foregoing feflion of thejudicial act, or adopt them, on the ground of in- cidental