Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-07-03


one or other OF which would be adopted by
the different parties according to their res
pective views and opinions. 1t would not be
wonderful, ifdesgning men had introduced
clauses or expressions into the draft, profess
ediy IN limited sense, with a hope that they
might receive at future period a more ex-
tenslve Interpretation for we have seen one
set OF opinions avowed while the constitution
was under consideration, and another insisted
on as soonasit was ratified. In endeavouring TO
reach It's meaning, we must not therefore take it
tor granted that every difficulty was provided
for. The members of the convcntion,tho' great
men, were yet but mortals much was proba-
bly, unforeseen by them,-and much that was
foreseen was probably left indefinite, lest in an
attempt to lay down the precise boundary be-
tween the state and federal Jurisdictions, new
difficulties might arise that would prove fatal
to the adoption ofthe constitution. 1t is not
therefore reasonable to suppose, that the evils
which have been suggested by the fertile mind
of the chief Justice, aided by subsequent expe-
rlence, were contemplated by the convention !:
and 1t is inconsistent with fair argument to take
for granted, that where an Inconvenience can
be shewn, the constitution must be so constru-
ed as to correct it. To use the language of
MIR. Hamilton himself, " it is not the mere pos
"s:biity of Inconvenience that can by impiica-
ton ALLEVIATE and extinguish a pre-existent
right of sovereignty;'' for in attempting TO a :
void an Inconvenience on the part of federal
power, we may be driven into the absolute
evils of an utter prostration OF the authority of
the states.
In approaching then the question of the SUI
ability of the states, we ought not to be mat
tentiye to the character ofthe contracting par
ties and the avowed objects of their associa-
ton. Ii the difficulty of obtaining Justice by
individuals from the respective states had been
one OF the evils which led to the constitution.
there might be some shew of reason in behalf
of the construction commended for. But If the
contracting parties were jealous ofthcir sove-
rei5nty ;-particularly tenacious of exclusive
power over their own treasures so cautious
OF submitting themselves TO the suit OF an IN
divldual, that they had never erected even
state tribunals to which to intrust the direc-
ton of their cOnscienccs, the control of their
wills and AN authority over their cxchequer
II, In their conventions they spurlcd at the de-
Dasn5 idea OF appearing at the bar of the
courts OF the federal government, we cannot
safely give to the terms Of the constitution
however general, an Interpretation so utterly
at war with these prejudices and these feel
ings. We are compelled to conclude, that By
all cases in law and equity" the trainers OF
the constitution could only have meant suits
between individuals, since a farther extension
of the meaning ofthe phrase would be not only
inconsistent with the views of the parties. but
was explicitly disavowcd, an drticulo conlrac.
tus, by those who pressed the adoption of ths
instrument Nay more as anterior to III.
constitution, the stability ofHte states before an,
traounat ,cas unhnoicn, as cases of that charac,
ter and description had no existence, it would
| forced n.ahta
clause which merely distributed the jlrisdc.
ton in eriSt'ng cases, so as to create class OF
cases not before eristing.
! Let us pursue this idea somewhat farther
Anterior to the constitution, there was not on.
ly no such thing as suit brought against
state by the citizens of another state, but there
was no such thing known to the civil polity o
their states as course Of action existing or
the part of an individual against a state
"Contracts between nations and individuals y
says Gen. Hamilton, " con ferno right Objection
independent ofthe sovereign will" The in
divldual must rest his claim upon the Justice
/ the cOnscence-the-disc will
the favor of the nation. If any person.
says Blackstone, Z" has in point ofprOperty
Just demand upon the King, he must peti
" ton him in his court of chancery where hi
" chancellor will administer right as a matter
|
And If in England according to the principle:
of the COMMON law which was the law of the
statesf, the King could not be sued, still les.
would suit whether original or appellate Ii,
here against the commonwealth in the person
OF the governor, who has no control over thC
revenues who can neither release nor trans
fer nor affect the property of the state but BY
legislative authority, and who is incapable o
sustaining suit, because the interests which
1t must affect are public-not private the in
terests OF tile sovereign,-not of the servant
In governments like ours, the suppOsition tina
national rights can be affected by suit against ;
public officer with limited powers except .wher;
the legislative authority had sanctioned suci
a proceeding, would be absurd. Hence. thos,
who have claims against the public, exhil,i
them by humble petition to the legislative bo
dy ;-tliat which possesses more of the attri
butes of sovereignty than any other organ o
1 the people, and by its command of the purse
and the property of the nation is alone able t.
do justice TO an injured individual As it is hi,
only organ that can do justice, it is the onl,
one that can be bound even IN conscience {,
DO it. IftiIen right of action could exist
that is the body against which it would arise
4 1T would be absurd to say, that a right Of ae
ton could exist against any other organ of th
nation, since none other has either tile powe
Of icaling or the power of complying with en-
gagements made by IFS DiH.LNoris it less alb
surd TO suppose the existence of this right O
action against the legislative body SO tina
we arrive at the conclusion that anterior to TN
constitution there was no right of action a
gainst the state.
If then the stability ola state was not Il
acknowledged and recognized principle a
mong the states, it even Alright ofacton couI
not exist against state,we cannot believe tina
the third article Of the constitution created 4
To extend TO that article the constructio
contendcd for, would give TO the clause j
question these COMMUNICATIVE eTccfa.