2 U.S. 419 (1793), Chisholm v. Georgia

Citation:2 U.S. 419, 1 L.Ed. 440
Party Name:Chisholm, Ex'r. v. Georgia
Case Date:February 19, 1793
Court:United States Supreme Court
 
FREE EXCERPT

Page 419

2 U.S. 419 (1793)

1 L.Ed. 440

Chisholm, Ex'r.

v.

Georgia

United States Supreme Court.

February 19, 1793

OPINION

This action was instituted in August Term, 1792. On the 11th of July, 1792, the Marshall for the district of Georgia made the following return: 'Executed as within commanded, that is to say, served a copy thereof on his excellency Edward Telsair, Esq. Governor of the State of Georgia, and one other copy on Thomas P. Carnes, Esq. the Attorney General of said State.'

'Robert Forsyth, Marshall.'

Upon which Mr. Randolph, the Attorney General of the United States, as counsel for the plaintiff, made the following motion on the 11th of August, 1792. 'That unless the State of Georgia, shall, after reasonable previous notice of this motion, cause an appearance to be entered, in behalf of the said State, on the fourth day of the next Term, or shall then show cause to the contrary, judgment shall be entered against the said State, and a writ of enquiry of damages shall be awarded. ' But to avoid every appearance of precipitancy, and to give the State time to deliberate on the measures she ought to adopt, on motion of Mr. Randolph, it was ordered by the Court, that the consideration of this motion should be postponed to the present Term. And now Ingersoll, and Dallas, presented to the Court a written remonstrance and protestation on behalf of the State, against the exercise of jurisdiction in the cause; but, in consequence of positive instructions, they declined taking any part in arguing the question. The Attorney General, therefore, proceeded as follows.

Randolph, for the plaintiff. I did not want the remonstrance of Georgia, to satisfy me, that the motion, which I have made is unpopular. Before that remonstrance was read, I had learnt from the acts of another State, whose will must be always dear to me, that she too condemned it. On ordinary occasions, these dignified opinions might influence me greatly; but on

Page 420

this, which brings into question a constitutional right, supported by my own conviction, to surrender it would in me be official persidy.

It has been expressed, as the pleasure of the Court, that the motion should be discussed, under the four following forms:

1st. Can the State of Georgia, being one of the United States of America, be made a party-defendant in any case, in the Supreme Court of the United States, at the suit of a private citizen, even although he himself is, and his testator was, a citizen of the State of South Carolina?

2nd. If the State of Georgia can be made a party defendant in certain cases, does an action of assumpsit lie against her?

3rd. Is the service of the summons upon the Governor and Attorney General of the State of Georgia, a competent service?

4th. By what process ought the appearance of the State of Georgia to be enforced?

1st. The Constitution and Judicial Law are the sources from which the jurisdiction of the Supreme Court is derived. The effective passages in the Constitution are in the second section of the third article. 'The judicial power shall extend to controversies between a State and citizens of another State' 'In cases, in which a State shall be a party, the Supreme Court shall have original jurisdiction. ' The judicial act thus organizes the jurisdiction, delineated by the Constitution. 'The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except, also, between a State and citizens of other States and aliens, in which latter case, it shall have original, but not exclusive jurisdiction.'

Upon this basis we contend,

1st. That the Constitution vests a jurisdiction in the Supreme Court over a State, as a defendant, at the suit of a private citizen of another State.

2nd. That the judicial act recognizes that jurisdiction.

1st. The Constitution vests a jurisdiction in the Supreme Court over a State, as a defendant, at the suit of a private citizen of another State. Consult the letter of the Constitution, or rather the influential words of the clause in question. The judicial power is extended to controversies between a State and citizens of another State. I pass over the word, 'between,' as in no respect indicating who is to be Plaintiff or who Defendant. In the succeeding paragraph, we read a comment on these words, when it is said, that in cases, in which a State shall be a party, the Supreme Court shall have original jurisdiction. Is not a defendant a party as well as a plaintiff? If authority

Page 421

be necessary for so notorious a definition, recur to I Harr. Chan. Pract. p. 35. where it is observed, that 'in this Court,' that is, in the High Court of Chancery of England, 'suits are generally commenced, prosecuted, and defended by parties, in their own names only. ' I might appeal too to a work of greater solemnity, and of greater obligation; the articles of confederation. In describing the mode, by which differences between two or more States shall be adjusted, they speak of a day to be assigned for the appearance of the parties; of each party alternately striking the names of the persons proposed as Judges; of either party neglecting to attend; of striking names in behalf of a party absent; of any of the Parties refusing to submit to the authority of the Court; and of lodging the sentence among the acts of Congress for the security of the parties concerned. Human genius might be challenged to restrict these words to a plaintiff state alone. It is indeed true, that according to the order in which the controversies of a State are mentioned, the State is the first; and from thence it may be argued, that they must be those in which a State is first named, or plaintiff. Nobody denies, that the citizens of a State may sue Foreign subjects, or Foreign subjects the citizens of a State. And yet, the expression of the Constitution is, 'between a State or the citizens thereof, and Foreign States, citizens or subjects. ' The order in this instance, works no difference. In common language too, it would not violate the substantial idea, if a controversy, said to be between A. B. and C. D. should appear to be between C. D. and A. B. Nay the opportunity fairly occurs in two pages of the judicial article, to confine suits to States, as plaintiffs; but they are both neglected, notwithstanding the consciousness which the convention must have possessed, that the words, unqualified, strongly tended at least to subject States as defendants.

With the advantage of the letter on our side, let us now advert to the spirit of the Constitution, or rather its genuine and necessary interpretation. I am aware of the danger of going into a wide history of the Constitution, as a guide of construction; and of the still greater danger of laying any important stress upon the preamble as explanatory of its powers. I resort, therefore, to the body of it; which shows that there may be various actions of States which are to be annulled. If, for example, a State shall suspend the priviledge of a writ of habeas corpus, unless when in cases of rebellion or invasion the public safety may require it; should pass a bill of attainder or ex post facto law; should enter into any treaty, alliance, or confederation; should grant letters of marque and reprisal; should coin money; should emit bills of credit; should make any thing but gold and silver coin a tender in payment of debts, should pass a

Page 422

law impairing the obligation of contracts; should, without the consent of Congress, lay imposts or duties on imports or exports, with certain exceptions; should, without the consent of Congress, lay any duty on tonnage, or keep troops or ships of war in time of peace; these are expressly prohibited by the Constitution; and thus is announced to the world the probability, but certainly the apprehension, that States may injure individuals in their property, their liberty, and their lives; may oppress sister States; and may act in derogation of the general sovereignty.

Are States then to enjoy the high priviledge of acting thus eminently wrong, without controul; or does a remedy exist? The love of morality would lead us to with that some check should be found; if the evil, which flows from it, be not too great for the good contemplated. The common law has established a principle, that no prohibitory act shall be without its vindicatory quality; or, in other words, that the infraction of a prohibitory law, although an express penalty be omitted, is still punishable. Government itself would be useless, if a pleasure to obey or transgress with impunity should be substituted in the place of a fanction to its laws. This was a just cause of complaint against the deceased confederation. In our solicitude for a remedy, we meet with no difficulty, where the conduct of a State can be animadverted on through the medium of an individual. For instance, without suing a State, a person arrested may be liberated by habeas corpus; a person attainted and a convict under an ex post facto law, may be saved; those, who offend against improper treaties, may be protected, or who execute them, may be punished; the actors under letters of marque and reprisal may be mulested; coinage, bills of credit, unwarranted tenders, and the impairing of contracts between individuals, may be annihilated. But this redress goes only half way; as some of the preceeding unconstitutional actions must pass without censure, unless States can be made defendants. What is to be done, if in consequence of a bill of attainder, or an ex post facto law,the estate of a citizen shall be confiscated, and deposited in the treasury of a State? What, if a State should adulterate or coin money below the...

To continue reading

FREE SIGN UP