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

| how any issue between State and The federal
government could be btigated before JUDICIAL
/ tribunal In other words. how the legal or eqult-
able right of either would be so related, as to
be the subject of Judicial CO 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, The sources Of It's 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 "
la answering it, first say, that it is contrary
to the very nature of sovereignty that a should
be sued 1t is Il universal principle with all ma
tons to deny this jurisdiction 1t is never adj
United, except by the express assent of the SOW
eregnty, for it is too high Jurisdiction to be
assumed upon slight even liberal implication.
! --Federast 374
Bnt again: All powers not delegated are re-
served 10th Amendment G.. U. > The
clause upon which reliance would be had, Is that
which gives jurisdiction as to controversies to
which the United States shall be party" e..
| u. s., Art 3, Sec. 2 Faies,
Does this clause include the in question?
The non-suability of the States is, as just stat
ed, comfortable to general principle 1t is
confirmed upon the face of the Constitution ;
but chiefly by the 18th amendment to it, limit
iny expressly the meaning OF clause giving
jurisdiction in cases g between State and cili
zens of another State" to those aobere The STATE
u,ay 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 adopted to obviate con-
trary construction upon the original terms Of
the Constitution by the supreme court. Dali.
Rep, 478 1t 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 if such be the principle Of the Constitu-
ton, can any but some other and the clearest
provisions overthrow itl 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, e. to controversies
to which the United States shall be par.y,'C
do not demand such construction, ~ 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 ALL" 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 Usean alW controversies to which the Unit
ed States is party, il obvious. 1t has never
been held to extend to any case where the Unit
ed States was defendant; nor does 1t include
any, where foreign State or subject is party.
1t does extend to all suits prosecuted by the
United States against citizen, and may be limit
ed to such cases without impairng In any de-
gree the force of its language.
Lzf - ,,oI
GLIDING the class of clses under consideration;
if its undoubted construction Isl and has been
to limit it to those where the United States are
plaintiffs if to extend it to cases between the
United States and State, would initiate no less
! with the natural exemption of State from be-
ing the defendant In any suit than with the jeal-
E Gus guarantee of that exemption subsequently
, incorporated upon the Constitution by amend
ment, in order to override judicial construction
imparing it, is not the conclusion irresi tible,
|, that this clause was not designed to give the
h jurisdiction in question!
o But this view is made still stronger by the
e fact, that such power was proposed in the
s convention, and was never adopted but was
r referred to committee, who reported in its
favor, which report was subsequently amended,
S SO ms to leave the clause as it now stands with
out including the class of cases to which ! now
refer. Jour- of Fed Conven, 265, 278, 287-S.
Il How, then, can that tribunal be an arbt:r,
much less final arbiter, when it can never de-
eide between the contestants, the United States
and State? And how then shall a decision
, between A and B, bind State not a party to
the proceeding, and who never could be to any
: similar one How shall it conclude the judg
I ment of n State, when by it none of her own
citizens, nor any Of those of other States, are
? bound by it, if not parties to it p!
| n Il al = 4
{ to its being final arbter, to be possessed by
/, the supreme court, what is there to exclude the
= right of State to determine its powers, or to
override its judgment!
It should not be forgotten, that in the exer-
else Of its judicial power, the supreme court is
the agent of the State. If arbiter, it is so by
the consent of the State. Now what is there in
J its constitution, which forbds the right of the
S latter to determine IFS powers whenever it has
? assumed urisdictCn unwarranted by the terms
of their grant, or has abused those with which
Z il was entrusted The right in every similar
case of agency, or ofadmission to arbitration, to
, determine the one and to revoke the other, is
7 unquestionabe. Why not in this
An important distinction should here be
noted The power of the court is purely Judi
cal, and results from the Constitution, as the
act of the State, over whom II claims jurli die
uOn. IN Other words, W Holus JUS powers over,
by the consent Of, the State. 1t has no exis-
tence independent Of that consent If the
State can withdraw IL, lis jurisdiction over the
: State is at an end. II is judicial power wihin
the Union, bat not beyond t., or distinct from it
Upon the assumption Of tho existence of such
jurisdiction, therefore, its decision Is only obi
gatory prior to the act of s. cnssion, by which
act that obligation cea-es. For how can its
decision bind the State, after its power has
ceased? How Gan its decision live, when its
power is gone! How can IN award bind
party to the submission, if made after its revo.
cation By him.
Thus, by admitting the existence Of the two
qualities first mentioned, and yet viewing its
l powers as trust powers, think it may conf
IDENTIFY be affirmed, that there being nothing
which places the judiciary beyond the reach of
the revokng act of the State its decisions are
subject TO that appeal to its own Judgment,
which every State may therefore, make, and
making, may secede.
4 i A.. 4