1793.
I perceive, and therefore candor urges me to mention, a circumstance, which seems to favor the opposite side of the question. It is this: the same section of the Constitution which extends the judicial power to controversies “between a State and the citizens of another State,” does also extend that power to controversies to which the United States are a party. Now, it may be said, if the word party comprehends both Plaintiff and Defendant, it follows, that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to me to be fair reasoning; but the same principles of candour which urge me to mention this objection, also urge me to suggest an important difference between the two cases. It is this: in all cases of actious against States or individual citizens, the National Courts are supported in all their legal and Constitutional proceedings and judgments, by the arm of the Executive power of the United States; but in cases of actions against the United States, there is no power which the Courts can call to their aid. From this distinction important conclusions are deducible, and they place the case of a State, and the case of the United States, in very different points of view.
I wish the State of society was so far improved, and the science of Government advanced to such a degree of perfection, as that the whole nation could in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is, or is not, now the case, ought not to be thus collaterally and incidentally decided: I leave it a question.
As this opinion, though deliberately formed, has been hastily reduced to writing between the intervals of the daily adjournments, and while my mind was occupied and wearied by the business of the day, I fear it is less concise and connected than it might otherwise have been. I have made no references to cases, because I know of none that are not distinguishable from this case; nor does it appear to me necessary to shew that the sentiments of the best writers on Government and the rights of men, harmonize with the principles which direct my judgement on the present question. The acts of the former Congress, and the acts of many of the- State Conventions, are replete with similar ideas; and to the honor of the United States, it may be observed, that in no other country are subjects of this kind better, if so well, understood. The attention and attachment of the Constitution to the equal rights of the people are discernable in almost every sentence of it; and it is to be regretted that the provision in it which we have been considering, has not in every instance received the approbation and acquiescence which it merits. Georgia has in strong language advocated the cause of republican equality: and there is reason to
