The southern press. [volume] (Washington City [i.e. Washington, D.C.]) 1850-1852, 1851-10-15

government could be ltigated before q Judicial
tribunal. In other words. how the legal or eauit-
able right of either would be so related, as to
be the subject of Judicial &C enhance; and this
arises mainly from the fact, that under the pre-.
sent government, persons, not States, are regard
ed as the subjects Of its action while States, not
] persons, are Ike sources of its power.
| The former. therefore, may have controversies
with individuals rarely with States, in the exer-
else of its powers.
But Independently Of this difficulty, which
would so greatly limit if not practically destroy,
the asserted jurisdiction, the question recurs,
does it exist at all!
In answering it, first say, that it is contrary
to the very nature of sovereignty that IL should
be sued 1t is universal principle with all ma
tons to deny this jurisdiction. II is never ad-
mitted, except by the express assent Of the SOW
ereignty, for it is too high jurisdiction to be
assumed upon slight or even liberal implication.
l-Federalist 374.
But again: All powers not delegated are re-
served. 10th Amendment C.. u. 81 The
clause upon which reliance would be had, is that
which gives jurisdiction as to controversies to
which the United States shall be party" G.
u. s., Art. 3, Sec. 2.
Does this clause include the case in question
The non-suability Of the States is as just stat.
ed, conformable to general principle. II Is
confirmed upon the face of the Constitution
but chiefly by the 18th amendment to it, limit
ing expressly the meaning of clause giving
4 Jurisdiction in cases between State and citi-
gems OF another State" to those ,ohere The STATE
may be plaintiff The language of the amend
ment is peculiar: "The Judicial power shall not
be construed to extend to any suit in law or
equity commenced or prosecuted against one of
the United States" &c This amendment, as a
matter Of history, was ad opted to obviate con-
trary construction upon the original terms Of
the Constitution ny the supreme court. Dali.
Rep, 478 II is an authoritative declaration,
that such construction shall not be placed upon
those terms, and limiting it to cases where the
State may be the plaintiff.
+ Now it such be the principle Of the Constitu-
lion, can any but some other and the clearest
, provisions overthrow It? Should any construc
ton be given to the clause in question, which is
not essential to its operation If it would infringe
upon this jeaously guarded right!
The terms Of the clause, ("to controversies
T to which the United States shall be par w
, do not demand such construction, as would ex.
| tend their meaning to controversies between the
, United States and an individual State. To
make it do so, would require the insertion of the
word SAIL" before the word controversies :
an insertion not made, but omitted in this clause
, though inserted in every preceding one, and
doubtless Intentionally That the clause does
mol mean air controversies to which the Unit
ed States Is a party, Is obvious. II has never
been held to extend to any case where the Unit
, ed States was defendant; nor does il include
any, where foreign State or subject is party
{ Il does extend to all suits prosecuted by the
United States aga INST citizen, and msy be limit.
cd to such cases without impairing in any de.
, gree the force of its language.
I Now if It may be fairly construed, without in
GLIDING the class OF o isss under consideration
If It's undoubted construction is. and has been
, to limit Il to those where the United States are
plaintiffs; If to extend it to cases between the
United States and State, would initiate no les.
with the natural exemption of State from be-
: ing the defendant in any suit than with the jea
+ GUS guarantee of that exemption subsequently
incorporated upon the Constitution by amend
ment, in order to override Judicial construction
impairing 1t, Is not the conclusion irresistible
that this clause was not designed to give the
, Jurisdiction in questions
!, But this view is made still stronger by tn,
. fact, that such power was proposed in tn,
3 convention, and was never adopted; but wal
r referred TO committee, who reported in ID
favor, which report was subsequently amended
so as TO leave the clause As II now stands, with
out including the class Of cases 70 which now
refer. Jour. Of Fed. Conven., 265, 27S, 2S7-S,
/; How, then, can that tribunal be an arbit,r
, much less a final arbiter, when II can never de
eide between the contestants, the United State,
and a State! And how then shall a decision
, between A and b, bind State not party u
the proceeding, and who never could be to any
J similar one 7 How shall il conclude the judg
/ ment Of State, when by II mono Of her owl
citizens, nor any Of those Of other States, are
7 bound by il, IL not parties TO III
But admitting the two first qualities essentia
to its being final arbiter, to be possessed BY
, the supreme court, what Is there to exclude the
right of State 10 determine It's powers, or "a
override its judgmeS!
Il should not be forgotten, that in the erer
else Of its judicial power, the supreme court i
the agent OF the State II an arbter, il is so By
the consent of the State. Now what is there il
its constitution, which forbids the right Of the
latter 10 determine It's powers, whenever II ha,
assumed jurisdiction unwarranted 10y the terms
Of their grant or has abused those with which
. il was entrusted The right IN every similai
case Of agency, or OF admission TO arbitration, tc
> determine the one and 70 revoke the other, il
uuquestionabe. Why moi In This!
An important distinction should here b,
noted. The power Of the court Is purely judi
|
at of the State, over whom il claims junsdic
ton II other words, II holds its powers over
by the consent Of, the State. Il has no exis'
tence independent Of that consent IL the
State can withdraw IL, its jurisdiction over the
State is at an end. IL is Judicial power pithh
I've Union, but not beyond n, or Distinct from IL
Upon the assumption Of the existence Of such
jurisdiction, therefore, its decision is only obi
| yatory prior 10 the act of o. osssion by whici
act that obligation oea-es. For how can iis
decision bind the State, sfter its power hes
ceased1 How can is decision live, when IL
power Is Comet How can an award bind a
, party TO the submission, If made after It's revo
cation by hint
Thus, by admitting the existence Of the two
qualities first mentioned, aud yet viewing its
powers AZ trust powers, think il may conh.
IDENTIFY be affirmed. that, there being nothing
, which places The judiciary beyond the reaoh Of
the revoking act OF the State, its decisions are
subject 10 that srpcsl to its own Judgment
which every Stale may therefore, make, and