Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1821-06-08

| operation OF the eleventh amendment i ~,
ed TO style writ of error a comnissionu
yet 1t IS also obliged 10 admit that il il
an action, by admitting that a release of All
acuous, VIII release writ of error which
a party +" recovers' or is " restored TOP an,,
thing. As plaintiffs falling TO recover any
thing in the courts below, may brine errnS
as well as defendants against whom md
ments nave passed, the words" recover and
DE restored TO-" apply to those eases. res
pecuvely. have already said that am actual
change oil property, is not necessary 10; give
application and effect, To- the word restore
Ihe court says that the object of the A.
mendinent was, both to prohibit the com.
l mencement of future suits, and to arrest the
prosecution" of those which were pending at
.he 'ilie Oh the amendment: and that this oh
prosecuted" ltnever could have heen ,,a
intention of the amendment. TO interfere WIFI,
suits already existing. That would destroy
the lea temporis, altogether, and set aside The
great prlncip'e that suits rightly brought
ought TO be determined. AS the federal cH,rt
was suli continued in existence. these suits
should have been finished hy it.-In fact G,s.
the court is fond of history,) the then pend-
ing SUITS Were not immediately "arrested .nbv
| virtue oil that amendment. That amend
nent was unanimously adopted bv the le-
ou Va Smtt, IN October 1894, m
anu mignt, c9oFe, have become a part OF
'ie CONSTITUTION, by the adoption of other
states, and yetthe suit pondin, against V;r.
gnla, IN the supreme court, was oend;nr orr
s6th December 1896, rs appears bva resoI,,-
ton before referred to. Ihis suit therefore
was not at once arrested by the supreme
court, as, most probably, it would, had that
been the sole purpose ofthis amendment. II
auniit that, at future time, il was decided
Dy the supreme court, in the case of Hol.
ntiss"oFtn aSainstthe state Virginia, 0Jtliat
'ihs aihchonent embraced cases, depending
At .Ie ,lne, on the docket : but it was, also,
ueSiuea .hat 1t extended to cases, A" prosecu-
tea IN future. This decision negatives tho
idea OF the court that the term was consnrI
10 the cases then pending. As il has This fu-
lure operation, also, under this decision. and
as inc WORD commenced" is also used. in
the amendment, for what other burmese
could tne word prosecuted" have been in
serted, bat to embrace cases which. althoug,,
rot commenced IN the federal courts were
prosecuted there
This idea ofthe supreme court is aIsocn-
GTeiy reprobated by another consideration
~ 10 CONSISTENT WIN no rules of fair REASONING
70 construc an Instrument, which Tho cnnr3
itself, says was " designed to attain i,nn,or'
tdhty ny the pending and ephemeral inci
dents the present time. Ii is wrong 70
oraw any nierences, in the teeth. too. og
great principles, from the accidental exist
encc at the uine, OF three causes on the fincker
OF that court. The decision ofthe e,r,rs,,,n
court, last mentioned, oyerthrows this ,Iea of
their successors. 1t shows that the amend
ment as TO the word "prosecuted," was moi
confined TO the pending suits.
Inc court is entirely mistaken, | conceive.
III supposing, that the only effect of a writ of
& at,- To, l,,,.,.
court" for the" sole purpose of an eno,,;ru
by that court whether the iulement an
"pea!ed;from, violates the constitution. ;, &.c
IL Is brought Tor the far more important and
substantial purpose, of reversing a iudp
fneni, by which the party bringing il sun
poses himself to have been aerrrieyed. II :,
real and substantial proceeding. and is not tn
settie mere abstract questions, about the
Constitution 1t also changes the right of
property by declaring that money or pro-
perry now belongs to the plaintiff in error
" had been before adjudged to belong to
the deiendant.--if this be not a suit. cannot
conceive what is. The court again SAYS.
repeating the same idea,-that the plaintify
IN error only asserts the constitutional riqbt
10 nave ms defence examined, by the Au
perior court This is the truth but II ia
NOT the whole truth lie also claims a i,dp-
mem from the supreme court, by which =
Judgment to his injury is TO be reversed.
must here remark, once for ALL that these
are new and strong proofs, among manr
others, OF the artlul manner in which the pre-
tensions OF the supreme court, are, almost al
ways, stated. Every thing which makes A.
gai1st thcr SIDE of The question, is greatly
distorted ana aggravated, and every thing, in
ITS favour IS very much palliated and soften
cd. They often assume premises. which
cannot be conceded and fake fo~ o,-.,,,d
what ought to be proved. These are arts.
had almost said, articles, scarcely TO be ex-
cused III an advocate, and which are suray
unworthy oil the high character of the SUI
preTnc court.
AS Tor the hair-splitting distinction between
ctauon ana summons, taken with q view
10 discriminate between writ of error. and
an actlon, cannot compreh end it. Both are
served upon, or left with, the Governor. and
he may attend TO both, or decline them af
MS election but the results are precisely the
same. IL he does not appear upon sum
mons, Judgment may be rendered against
MN by default, and If he neglects a citation,
an existing judgment, i'm his favour,may. per-
maps ne reversed. There is no substantial
difference between the two processes.
For the purpose of showing that a writ of
error IS not suit and, therefore, not inter
dicted by the eleventh amendment. the court
says, that while the former has always lain
against judgments in favor of the United
States, 1T IS " the universally received opini-
on" that no suit can be commenced or
prosecuted against the United States By
saying that this IS the " universally received
OPINION" infer, that that matter has never
been soemnly decided, by the supreme
court-On general principles, am clearly
OF opinion, that such suits would lie The