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


extend to oil cases in law and equity arising
under the constitutions" &c.-Truly--if this
I declaration not only embraces descriptions of
cases then existing, but those also ofwhicf there
was no precedent lift not only gives to an in
| dlvidral right To size in tile federal court
where before he could only sue in the state
court, but also creates right to sue where it
did not erist before, and even to give "right
OF action where the claim ofthe party rested
before upon the grace" and the favour
OF the state, the human mnd-with all
its fertilty-is incapable of concerning the
comprehensiveness ofthe other clauses OF this
very comprehensive constitution.
! Nor is IT immateral to observe that the con-
stltution of the United States is distribution
OF existing powers between the state and fede-
raj governments. The Sd article is mere
distribution of judicial power between them,
or rather it is a mere designation of that por-
ton ofthe judicial power proposed by the
states, which it was intended should he exer-
cised by the United States. Ii then there was
no power or jurisdiction in the state tribunals.
to entertain cause against the state it cannot
be fair construction of the instrument TO say
that the states have transferred power or iu-
rlsdIcton of which they We're not themselves
IN the exercise. New subjects of controversy
might OF course be expected to arise under the
new order of things but if would require the
strongest and most explicit language or the
part OF the states to convey right to sue
themselves, when no such right had ever exist
ed even in their own tribunals.
1t willnot take away from the force to which
these arguments may be entitled, if in some of
the states this right to sue the body polite had
existed before the constitution Because, lift
did not exist in all, or If in some i'm d greater
degree than others, the clause would operate
unequally upon the different members of the
coniedcracy which could not have been intend
l ed.
ltmay be remarked moreover, that although
this argument has been pressed chiefly i'm rcla-
ton TO the question of original jurisdiction in
suits against the states, it is equally cogent in
Its application to the appellate jurisdiction as
sertcdm criminal causes because. at the a
doption of the constitution no such power of
appeal in criminal cases existed even in the
; state tribunals.
Combining with these considerations the
correct principles stated by The Federalist,
that Z" it is inherent in the nature of sovereign
) "ty not TO be amenable to the suit of an indi-
"vidual without its CONSENT" and that /" this
alienation can only exist where II is express
~ made, or where TO deny il, would be a5so-
Sc tutety and totally rcpugnant and contradicto-
ry TO express authority vested in the federal
government )" we may safely affirm that
the STABILITY of state is neither within the
words nor the spirit of the third article: Not
within the words, because they refer to then
existing cases, and do not embrace descriptions
3 of cases not then existing nor to the spirit,
because such Il concession was incompatible
!, with the acknowledged temper and DISPOSE
tons of the contracting parties The phrase
oogy, however general, is satisfied by embrac-
: ing all those classes or descriptions of cases
then existing which in the new order of things
might involve questions arising under the con-
stitution, &c. of the United States. And if il
be so satisfied, it cannot be interpreted to con-
tain any express or implied grant of the states
: to the exercise of jurisdiction, which would
so materially impair their respective sove-
reigntics. Had such been intended, it is in
conceivable that the obvious difficulties accom-
panylnS its exercise would not have been pro-
vidcd for The mode of enforcing the appear
ance of the sovereign power, the organ Of the
government which should represent its dig
nifty, the manner of giving eject TO the iudg-
ment OF the court, were all matters too inipor-
tant In the eyes of the contracting parties to
have been left to the subsequent arrangement
of the congress of the United States, or the
!, underlined discretion which the supreme court
have assumed to themselves upon the subject
The general plan of the new constitution was
6 to act on individuals directly, instead of act
" ing through the instrlmentility of the state
" governments :" and if so important dexia-
ton from that plan, as direct action upon the
state tribunals and the state sovereignties, had
been contemplated, we cannot but imagine
= that the trainers of the constitution would
have taken care TO fortify the power ON
! The one hand so as TO render it eifectual.
to guard it on the other so as TO avoid the
dangers of collision. They would not have
left the court in possession of the b,ut,,ui
tttmen alone and as the power, of en-
forcing justice from state would he at least a
matter of some delicacy, they would not have
permitted the nlodus operdndi to remain en-
tIrely underlined, or relied upon the marshal
and tile posse of one state to enforce the Jude
: ments ofthe supreme court against the sogc-
reignty of another.
1.-THE considerations which have suggested
are sufficient TO disproyc the oyiginoL iursdic-
ton of the courts The United States in suits
, aSa INST a state, the question of appellate i,lrs-
dIctlOn IN cases where a state is defendant In
> error, must be decided in the same wav. There
IS but one clause giving jurisdiction. IL from
the generality 0f the phrase, ann case is inclll-
= dcd where n state is defendant, all cases are
comprefended. If any be excluded, all .rnust
be excluded. For, the clause in relation To an.
r. pellate jurisdiction is merely distributive " In
all The Other cases before mentioned, tile supreme
g. court snau nave appellate JuFlsdlctl0D," &C.
!. Nor is there less ofdimcuty in the mode o.
exercising the appellate power and every ar
;, gtuncnt which applies to the denial of origina
" jurisdiction, is equally decisive against tb,
!, power of appeal. There are Others which ar,
I Of yet more cOgency. The degradation o
: submitting controversy with an individual {,
n the federal court, is nothing in comparison
- with the utter debasement of national dignity
--thc eniire incompatibilltY with eyery ilea o