The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-07-31

| Consultation and the circumstances which
| led 10 it's adoption. Under the provision OF
the third article OF that instrument that the
| judicial power should extend to controver-
| sizes between q State and citizens Of another
| state, the state Of Georgia was sued In the
| Supreme Court in 1892 by an executor named
| CHISHOLM, To recover n sum Of money In
which the state was alleged to be indebted
to him. Tho decision Of the Supreme Court
maintained that its jurisdiction under tho
Consultation AZ IL then stood covered cases
of state Indebtedness to citizen Of another
state
Now tho eleventh amendment to tho Con
stltution was adopted in order to change
tho organic law as thus declared by The
Supreme Court. II was designed TO prevent
any more such suits as CHISHOLM against
Georgia u DALLAs's Reports 4l0) and Mr..
JOHNSON comedies this by saying that 1t was
adopted in consequence Of that decision.
IL provides that the judicial powers Of the
United States shall not be construed 10 ex-
tend 10 any suit In law or equity commenced
or prosecuted against one of the United
States by citizens Of any other State, or by
citizens or subjects OF any foreign State"
This limitation has been a part OF the Con-
stitution since 1903 OF course II prohibits
suits by individual creditors No one ques-
tons it's efficacy for that purpose. But the
advocates Of the new theory say it does not
prohibit the State In which these creditors
live from acting for them In q representative
capacity. The State, they contend, should
care for It's citizens who have loaned UNI
wisely, and should make their cause its own
before the Supreme Court.
But Is not any such plan simply n eontri
vance to cvade the operation Of the Eleventh
Amendment Suppose, for example, that a
citizen OF New York has purchased bond
OF South Carolina, which that State neglects
and refuses to pay when due. Unless the
courts OF south Carolina, under her State
laws are empowered to afford legal redress,
the New York creditor can have none. The
Eleventh Amendment denies him any rene
dy In the courts OF the United States. To
say that his State may represent him In the
Supreme Court and there prosecute in its
own name but for his benefit an action
against South Carolina which he could not
himself maintain, is to say that the Consti-
tuition permits man to have indirectly
that which 1t expressly provides he shall
not have at all. The Eleventh Amendment
s, in our opinion prohibition OF any such
suit. 1t seems to us to forbid the States
from exercising any representative capacity
OF this sort in favor Of their citizens.
different question would arise II com
plainant State, as municipal Government,
had itself lawfully purchased the obliga-
tions OF defendant State, SO as to DO an
actual owner seeking 10 recover the amount
due thereon; but none OF the recent propo-
sitions We have seen contemplate anything
like a real Indebtedness to the State which
is to sue. Any discussion OF the expcdioncy
Of change In the law is also aside from
our present purpose. We desire at this
time, however, when so much Is being said
in its favor, to express our emphatic dissent
from doctrine which substantially asserts,
in direct hostility to the Constitution, that
the Supreme Court can compel States to pay
their debts to citizens Of other States. 1t is
dishonest in n debtor to repudiatc a just
debt, but it is not less so in his creditor to
attempt to collect it by legal subtcrfugc.