The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-06-22
LETTERS TO THE EDITOR.
TIE STABILITY or STATES.
s,,,her Discussion OF This Important Que
To the Editor Of The Dispatch

~
s.f 81. tien.
To The Editor of The Dispatch
The question whether state may a oe
"a no sre at its own citizens In Feee-
~, ~n,,r, In a case arising under the Con-
sss,nt,on or laws, &C., OF the United States
w,h,rh Il now attracting so much attention.,
depends upon the true construction 10 os
,s,lc.d mon the Constitution OF the United
t.stss In IL too well settled TO be ques-
5000 that no state can be sued unless she
-. o,ver her consent to be sued, ana tbis
g. roncetied by those who claim the lur,s-
d,csso,, al the Federal courts over the otats
he their recognition OF the necessity OF
findiue some provision in the Constructor 70 q
conterr,nr such Jurisdiction. Under Tue
Consf,tntion. As originally adopted. II was
hsId IN Chisholm Us. Georgia, that S.a. .
co,sld IA sued In the Federal court. inns
,S.s under tho constitutional provision
living i,,yisdiction in controversies oe-
,...r = state and citizens OF another
St.ts II was suggested that, althouRn
On. stata was thus expressly nameu'
.hs FederaI courts only had lurls'
S,c,,on IN cases where the State was pam.
~ and NOT where she was defendant. but
,hs e,,nreme Court overruled this view'
Ia heIa otherwise. But the eleventh
arnendn,ent was forthwith passed, ana uc-
ci.red the construction adopted by 'he
Snnrsme Court 10 be opposed to the true
,hsorv and meaning OF the Constitution;
Tha eleventh amendment was auople9
aeon after the original Constitution, anu
~hile the trainers OF that instrument were
alive and active In public affairs. IL was
an interpretatiye amendment, anu uc-
rounced the construction OF the supreme
Co,rt IN Chisholm Us. georgia us o'io-
neons We thus see that though the otaIes
arc named In express terms III the c"'u .so
construed in Chisholm rs. georgia t'lo
Eleventh amendment was INTENDED 10 uo,
nonnce and reverse that constructor anu
"a declare that the States shouid not Io
construed 10 be embraced so rs 10 DC Iiaoic
TO SUIT under that clause. .,,o,;o,,
Those who contend for the lurlsdlctoh,
however. saw that the Constitution iurthei
nroyides that the judicial power snail eA,
i.nd 10 all cases arising under the federai
Constitution. ETC., and that this provision,
which was sssented TO and adopted oy tht
States, gives Jurisdiction over them, ~ r .nS
Federal courts, provided the case atses
under the Constitution. BUT IL Is soe''1 ~
and universal principle OF conStruc.'o ' - y
both constitutions and statutes' .n", y,
70, LANGUAGE. although broad enough IL
terms 70 embrace the State, Will not "
construed 10 include or bind the State'
II takes from II any right or preregatiVe ol
IMPOSES on It any burden. -SedgwlcR con
ssatpn, j and Statute Law, 1896, and case
cited; United States Us. hnignt' ~ ~,
3l5; Commonwealth Us. saunders, ~ oi"'
tan, 4o4; lie Vasser Us. Washpu,h, On
Grattan, 572; State Us. kirne, ~ I Iro
Hampshire, 23S; State Us. Garland 49, nV
dell Law Reports, As; Divine Us. har VIZ, y
r. B. Monroe, 443; United states US. no az
3 Massachusetts Reports, I'll; reopie 20
Gilbert, IS Johns, 22l. d,r,
The constitutional provision e1'enu,nl
the judicial power over all cases ai'slp'
under the Federal Constitution, &c, uoe
not name the States expressly or snow an
purpose to embrace them, ana u lheiei
cannot be construed to include tlieih ~ =
TO subject them TO suit ana deprive 'i'l
OF one Of their most cherished ana lni
portant rights OF sovereignty; ana tnl
pr;nciple Is greatly strengthened by III
contemporaneOus views OF the trainers Q
the Constitution, and by the prompt pa
,aas of the eleventh amendment TO cut o
ali rioht To sue the States under the onl
clause in which they are expressly nanieo
or within which it was supposed 'hc
could be included.
The principle OF construction when y"
have suggested as applicable here Is we
settled. Saws Mr.. Broom, speaking OF IN
Crown In England, and the State stano
ON the same footing here: ''The hlng
not bound by any act OF Parliament uh'es
he be named therein by particular ana sp'
cIal words. The most general WORDS ih'
can be devised (any person or persons
bodies polite or corporate, &c.,) ailect h'
him In the least II they may tend 10 II
strain or diminish any Of his rights or IL
terests.v Said Mr.. Justice Barbour l
limited States Us. Knight. IA Pet, 3lo
Where a statute is general, and thereD
any prerogative, right, title, or interest
diyested and taken from the King, IN sue
case he shall not be bound unless the 81
tute IA made by express words to eXten
IN him. 1t Is O settled principle tnat u
King Ia not ordinarily barred by
act Of limitations. The doctrine th
the Government should not uhie
named. be bound by an act OF llmlt
tions IA in accordance with that !us' cue
from Bacon, because il bound 1t would
barred OF q right, and in all such cases
not 10 be construed to be embraced unle
named. or. what would be equivalent, III
lsss the language is such rs to show clear
that such was the intent OF the act. III
ssms nrincIple has been decided in Ne
Yort' Massachusetts, Pennsylvania, and
donbt i'm other States, and all upon Il
same ground: not upon any notion OF pr
negative: for even in England where u
doctrine Is stated under the head OF prero'
alive this In effect means nothing more tina
that this exception Is made from the statu
for the public good" And in LeVasser Z
Washburn, II Graft, 512, Judge Lee USE
this language - In general leglsatiNe ac
are intended to regulate the acts ana righ
of citizens; and 1t is rule OF construcuo
not 10 embrace the Government or affect
rights by the general rules OF a statute u
less It be expressly named and in terms 1
cluded, or by necessary and unaVoidaD
implication"
This rule OF construction ought TO
applied with special force to the CONSUL
ton; for how were the States when TIT
adopted the Constitution to suppose, esp
clally under the ideas then prevailing, IN
any such important surrender OF their II
munity from suit lurked under these gen
raj words, now relied on as comforting
the Federal courts jurisdiction over then
And II the eleventh amendment was pass
for the purpose Of reprobating the co
struction that the States were embraced
the clause in which they were named
express terms, how much less ought the
general works in which the States are
named to be construed to authorize 9
against themf y