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Page:United States Reports, Volume 2.djvu/443

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Somnn Cooar of the United Stan;. 437 eonlillently with the clear intention of the act, but fuch asa typ;. proper State Court would have been at leail comepetent to ex- yy`; ercife at the time the af} was pa{l`ed. lf therefore, no new remedy be provided (as plainly is the cafe), and eonfequently we have no other rule to govern ns but the principles of the pre-exillent laws, which mull remain in force till fuperccded by others, then it is incumbent upon us to enquire, whether previous to the adoption of the Conllitu- tion (which period, orthe period of lpalling the law, in refpeék tothe objcél of this enquiry, is per eélly equal) an aélion of the nature like this before the Court could have been maintained againll one of the States in the Union upon the principles of the common law, whichl have {hewn to be alone applicable. IE it could, I think it is now maintaimble here: If it could not, I think, as the law {lands at pre{`ent, it is not maintainable ; what- ever opinion may be entertained, upon the conilruélion of the Con{litution, as to the power of Con_gr¢ to authorife fuch a one. Now I prefume it will not be denied, that in every State in the Union, previous to the adoption of the Conilitution, the only common law principles in regard to fuits that were in any manner admillible tn refpeél to claims againll the State, were thofe which in England apply to claims againll the crown; there being certainly no other principles of the common law which, previous to the adoption of this Con{litution could, in an manner, or upon any colour, apply to the cafe of aclaim againd a State in its own Courts, where it was {`olely and completely {`o· vcreign in refpcél to {`uch cafes at lea{l. Vhether that reme- dy was ilriftly applicable or not, {lill Iapprehend there was no other. 'l`he only remedy in a cafe like that before the Court, by which, by any poiliblity, a fuit can be maintained againil the crown in England, or could be at any period from which the common law, as in force in.4m¢rit·a, could be derived, I believe is that which is called a Petition if right. It is {lated, indeed, in Com. Dig. rog. That “ until the time of Edward L the King might have been {`ucd in all aélions as a common per{`on." And {'ome authorities are cited for that poiition, though it is even there {lated as a doubt. But the fame authority adds-Jt but now none can have an aélion againil the King, but one {hall be put to {`ue to him by petition? This appears to bea quotation or abilraél from 7'belonlh Digell, which is alfo one of the au- thorities quoted in the former cafe. And this book appears (from the law catalogue) to have been printed fo long ago as the year 1579. The fame doélrine appears (according to a quota- tion in b’In¢ylon¢’.r Cammentnriu, r Vol. 243) to be {lated in Fino/:’.r Law 2 5 3, the lirll edition of which, it feems, was publilhed in tgyg. This alfo more fully appears inthe cafe of ' the Bankers, and particularly from thc celebrated argumeplt of ord