Wilmington journal. [volume] (Wilmington, N.C.) 1844-1895, 1867-05-17

Its great and primary purpose Is TO preserve
itself and it's political status for the sake of
its people. To allow it to be sued, to be
made bankrupt, and its public property to
be sold would, Of course, five the right to
the particular creditor, and save him but
that individual right would be gained ly
the loss Of the public rights, and damage
to the people of the State inestimably out
of proportion to the right acquired
Now, then, admitting that State may
sue, and that a State may own individual
rights, although essentially it is a political
being, the question is, has the State in
this case set up any Of those individual
rights, or does it appear here as the repre-
sentative of political power and political
rights, and in court Of equity seek to vim
dicate them against disturbance ?
First Of all, let us settle some clear ideas
about what is judicial power, and especially
the judicial power vested in this court
Our Constitution says that ''the judicial
power Of the United States shall be vested
in one supreme court and i'll such inferior
courts as the Congress may from time to
time orllain and establish" The power
vested in these courts is not political, not
executive, not Legislative, but judicial, pow
er Next, it is said that this ''judicial
power shall extend to"-what "To all
classes in law and equity not ''to all ques-
tions in law and equity" not to questions
at large, whether they arise under the Con-
stitutiOn, Or under Il law Of Congress-, or
anywhere else, but TO cease in law or equi-
ty, and to questions that properly arise in
those cases. This is the constitutional pro-
vision. What further ? Is this iurisdic-
ton extended under tho next clause, to
which the gentlemen and myself have SO
often referred? That divides this jurisdic-
ton over cases in law and equity, and di-
yides it between the courts that were crea-
ted or in contemplation OF being created, I'M
der the Constitution. What are those pro-
visions? Those provisions relate altogeth-
er to the partition Of this judicial power,
not to giving Il new sort, but to dividing
out to the appropriate courts the sort and
character of jurisdiction that has already
been given by the COnstitution-that is iu-
ris(liction in cases Of law and equity and
to that the partition is made into original
jurisdiction and appellate jurisdiction. Ger
tain cases are given to this court, to be cog
nizable here under its original Jurisdiction
that is, where this is the court Of the first
instance where this court, first of all, be-
fore any other court, takes cognizance Of
the parties and Of the case [ need not
enumerate them all only that one which
is appropriate to this occasion. That clause
Of the constitution gives to this court juris-
diction over ga case," or 50 a controversy, :"
(which is still more significantly i'll law or
equity, where a State is plaintiff, and where
another State or citizen of another State is
defendant and, so far as q State can be a
plaintiff, there it stops. Your HOnors will
recollect that the constitution, as originally
framed, gave, or was supposed to g. i've, jul
risdiction also in favor of q citizen of one
State as plaintiff against another State as
defendant but by an amendment Of the
constitution, at Il very early day, that con
struction was denied, and authority to in
woke the original jurisdiction Of this court
in the case of a citizen of any State bring
ing suit against another State was expressly
withheld, and the authority was limited in
favor Of State, authorizing it, as plaintiff,
to bring a suit, but not to be sued as de-
fendant.
A State then, has a h2cuy staneH in this
court as a plaintiff at law or as complain
ant in equity There is no question about
that. Beyond that, the next inquiry is,
has the State brought here the right defen-
dant ? If that is settled in favor of the
State, then comes the next question, has it
presented case in equity? Has it brought
here not only proper parties, but has it
brought here a subject-matter fit for the irl~
risdiction of q court Of equity?
[ understood from the argument of my
learned friend who last spoke, that it did
not matter much what sort of a controversy
State had, that so long as you had State
as plaintiff and proper defendant, you
might bring any COZ .royersy here, and you
might sue at law for what would be only
an equitable right, or sue in equity for
what would only be legal right Ger
tainly my learned friend never made q
tom, oil &,4o 10
any other suitor having an election be-
tween a remedy at law and remedy in
equity, must deter.line for itself whether
its relief is at law is in equity. No mat
ter how great the question is, if it makes
. mistake there, the mistake is fatal to its
case.
In view Of these well-settled and acknow-
lodged rules, let us for one moment look at
the case which each of these States presents
and the relief which it seeks. 1t has deci-
ded for itself that 1t is a case for equitable
Jurisdiction, and has come into a court of
equity to assert it. And now, if the court
please, as [ think over the whole field of
equity iurisdction-and [ have thought
much upon it since the case began-I do not
racollect and inasmuch as challenging
seems to be the rule, allow me to challenge
the gentlemen to cite sing lie case in which
& court OF equity has ever taken JurlSd1c-
ton Of such rights as are set up here by the
State of Georgia or by the State of Missis-
sippi. Undoubtedly there are equitable
rights of vast consequence reaching over
all the concerns of society, but to general
ize as much as possible, this will say, and
[ say it without the fear of contradiction,
that a court of equity takes jurisdiction of
no case in which, in some sense or other,
there is not a question of property. [ ad-
nit in some of the cases the question of
property is very indistinct, but the chan
cellors who have carried the jurisdiction of
courts of equity farthest in those cases still
admit that they must show that the case
and the relief touch a question of property.
It is not so with a court of law. There are
many rights and many wrongs that court
of law can vindicate and redress that do
not come within the definition of proprie
tary rights or rights of property. A court
of law on its criminal side takes cognizance
of life and Furnishes the crime of murder;
though there is no question Of property
concerned. It is SO, too, even in matters
not criminal. There are certain rights that
come within the jurisdiction of courts OF
law that do not depend merely on moral