State Documents on Federal Relations/3n

by Herman V. Ames

Georgia and the Federal Judiciary.

1792, 1793.

A suit instituted by Chisholm against the State of Georgia came up for a hearing before the Supreme Court in the August term of 1792, but the case was postponed to the February term of the next year, in order that the State of Georgia might have time to deliberate on the measures she ought to adopt. A resolution was introduced into the Georgia House of Representatives, December 14, 1792, declaring that this suit "if acquiesced in by this State would not only involve the same in numberless law-suits for papers issued from the Treasury thereof to supply the armies of the United States, and perplex the citizens of Georgia with perpetual taxes, in addition to those the injustice of the funding system of the United States hath already imposed upon them, but would effectually destroy the retained sovereignty of the States, and would actually tend in its operation to annihilate the very shadow of State government, and to render them but tributary corporations to the government of the United States," therefore the State of Georgia would not be bound by the decision of the Supreme Court in such cases, but would regard it "as unconstitutional and extra-judicial." It further recommended "an explanatory amendment" to the constitution. Apparently the resolution was not adopted, but it represents the policy which the State followed. At the February term of the Supreme Court a written remonstrance on behalf of the State was presented, but otherwise the State declined to appear. The opinion of the Court was rendered February 18, 1793. It was ordered that unless Georgia should appear, or show cause by the first day of the next term, judgment by default should be entered against the State. At the opening of the next session of the Legislature of Georgia, in November, 1793, the Governor called attention to the case in his message as given below. The House of Representatives adopted a report authorizing the preparation of an address to the Legislatures of the several States, "requesting their concurrence in a proposal for an explanatory amendment to the Constitution of the United States, in the second section of the third article," and they also passed a bill, "Declaratory of the retained sovereignty of the State," an extract from which follows. Apparently this measure did not pass the Senate, as the present Secretary of States writes that an examination of the manuscript laws for 1793 fails to disclose it.

State sovereignty was aroused elsewhere; two days after the decision of the Court was pronounced a proposed amendment, containing the exact language of the present eleventh amendment, was introduced in Congress by Senator Sedgwick of Massachusetts, against which State a similar suit was pending. The Legislatures of Massachusetts, Connecticut and Virginia each proposed an amendment; the former declaring that the power claimed by the Supreme Court was "dangerous to the peace, safety and independence of the several States and repugnant to the first principles of a Federal Government." Virginia pronounced "the decision of the Supreme Federal Court incompatible with and dangerous to the Sovereignty and Independence of the Individual States, as the same tends to a general consolidation of these confederated Republicks." Congress sent the proposed amendment to the States March 5, 1794, and its ratification was announced by a message of the President, January 8, 1798. At the February term of the Supreme Court 1794, judgment was rendered for the plaintiff, and a "Writ of Enquiry" awarded, but never executed, as the adoption of the eleventh amendment prevented the threatened conflict of authority.

References: The Texts are in The Augusta Chronicle and Gazette of the State, December 22, 1792; November 9, 16, 23, and December 7, 1793. This paper contains the House Journal.^[1] Massachusetts resolutions, Resolves of Mass. (MS.), IX, 108; Copy of Connecticut and Virginia resolutions in Massachusetts Archives. In Hollingsworth v. Virginia (1798), 3 Dallas, 378, it was held that the XI Amendment applied to prior cases. Chisholm v. Georgia, 2 Dallas, 419, 479, 480. For history of this case and the amendment, see Cohen v. Virginia, 6 Wheaton, 406; Ames, Proposed Amendments, Amer. Hist. Assoc. Report, 1896, II, 156, 157, 322; McMaster, II, 182–186; V, 402; Story, Commentaries, II, 481, 482. Thorpe, Const. History I, 176–178.

1. I am indebted to Mr. William Harden, Librarian Georgia Historical Society, for transcripts of these texts and examination of newspaper files.