1793.
in respect to the dignity of a State. But that very dignity seems to have been thought a sufficient reason for confining the sense to the case where a State is plaintiff. It is, however, a sufficient answer to say, that our Constitution most certainly contemplates, in another
banch of the cases enumerated, the maintaining a jurisdiction against a State, as Defendant; this is unequivocally asserted when the judicial power of the
United States is extended to controversies between two or more States; for there, a State must, of necessity, be a Defendant. It is extended also, to controversies between a State and foreign States; and if the argument taken from the order of designation were good, it would be meant here, that this Court might have cognizance of a suit, where a State is Plaintiff, and some foreign State a Defendant, but not where a foreign State brings a suit against a State. This, however, not to mention that the instances may rarely occur, when a State may have an opportunity of suing in the
American Courts a foreign State, seems to lose sight of the policy which, no doubt, suggested this provision, viz. That no State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature. But if a foreign State, though last named, may, nevertheless, be a Plaintiff against an individual State, how can it be said, that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cafes where a State is Plaintiff? After describing, generally, the judicial powers of the
United States, the Constitution goes on to speak of it distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a
party; but is not a State a party as well in the condition of a Defendant as in that of a Plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a Plaintiff-State? It seems to me, that if this Court should refuse to hold jurisdiction of a case where a State is Defendant, it would renounce part of the authority conferred, and, consequently, part of the duty imposed on it by the Constitution; because it would be a refusal to take cognizance of a case where
a State is a party. Nor does the jurisdiction of this Court, in relation to a State, seem to me to be questionable, on the ground that
Congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual; the argument
ab in utili may weigh much in cases depending upon the construction of doubtful Legislative acts, but can have no force, I think, against the clear and positive directions of an act of
Congress and of the Constitution. Let us go on as far as we can; and if, at the end of the business, notwithstanding the powers given us in the 14th section
of
