1793.
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 servethe
