The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-06-08
LETTERS TO THE EDITOR.
sUfSG THE STATE.


ton the communication OF a Lawyer,
nubl,shed In your editorial columns OF the
In instant. The question which ne
fr~.fed Il highly important one, and II
vss refreshing TO read q discussion OF it
~,ritfen IN the spiris Of lawyer from
;ndicisl standpoint. A safe solution OF
sr,ch question can be reached only by
such 4 discussion. IL can rarely be
reached when the treatment IL from the
standpoint Of party politics and In the
sp,rit Of the partisan politician.
The question IL, whether person VINO
has been deprived by his own State OF
right given him by the Constitution OF the
Union can sue that State In Federal
court for the recovery OF that right.
II so, this would be no extraordinary
thing. The State OF Virginia allows herself
TO be sued IN her own courts In large
class of cases. As matter Of right, there
Is nothing monstrous in suing State for
violating the rights OF It's citizens. There
a nothing intrinsically unjust In the pro-
vision OF the national Constitution Qf 1t
contain such a proyision) which, after
giving a right, gives the citizen who is
deprived OF Il BY bis own State the privilege
Of sujng for It's recovery IN court created
by the Constitution itself.
That instrument was the work OF wise,
practical men, skilful in the adaptation OF
ends to means. That instrument was de-
yised Tor thoroughly practical purposes,
and had for its objects, first, the definition
of the great ends for which 1t was framed
and second, the devising OF the best prac-
fjcal means for accomplishing those practl.
cal ends. When, therefore, the Constltu-
ton seems to embody provision neces'
sary to accomplish one OF its ends, the mere
fact that such a position affords sent'
ment furnishes no argument against tht
provision, especially II that sentiment D'
merely provincial or partisan.
The provision OF the national Constitu
ton upon which the question under dis
cussior, arises, deals with an extraordinary
grieyance-that In which State h charged
10 have violated tue Constitution OF thu
United States TO the injury OF her owl
citizen. Admittedly, II the violation mas
been done to the injury Of the citizen OF an
other State, OF Of the subject OF foreign
Power, the injured person must depend
upon the grace of the State to furnish hin
a remedy and forum in which to assert
IL. This may be well enough; but IL Il
not far out OF the fitness OF things to sup
UOst tUtt III tuC Dtott tbstiNo HNA Wv -
zen by violation OF the Constitution Of
the United States the Constitution shall
itself furnish him tribunal in which tc
seek redress. Originally The Constitution
gave such tribunal to Don-resldents anC
foreigners bya provision which was re
pealed. The repeating amendment diO
not take away the right OF citizen to sue
his own State; and II this right OF citizen
to sue his own State exists, IL seems TO be-
long to the itness OF things. There Is
nothing alarming or extraordinary in IL,
such as to justify an appeal to Mr.. Tucker
In Congress TO save the State from 1t, lest
she perish!
The evil to which the question OF iuris-
diction refers is itself extraordinary, and
when the proposition is asserted that the
Constitution OF the land provides redress
for this evil, ii is not enough for the OBJ
jector, be he lawyer or layman, to ex-
claim in oracular depreciation, "This is an
extraordinary doctrine" Everything,
before unknown or unthought Of, is ex-
traordmary to the ignorant mind, and the
implication OF such an Director is that
any and everything which lightens with a
flash of intelligence the darkness OF his
mind is extraordinary"
This objection OF extraordinary is
not unusual in our day and generation.
A few years ago, when Judge Hughes de-
cided In the Arlington cases that the
United States could be sued under that
clause of the Constitution which declared
that no man should be deprived OF bis
property by Government except by due
process OF law, and without just compen-
sation, the equanimity Of that large class
OF LAWYERS who "stick in the bark" was
disturbed, and they exclaimed, econ
trary to the ancient ways"! "Extraor-
binary doctrine"
Most OF the law journals OF the Unicn
snecred 1t the ruling, and said, with an air
ex cathedra, that the Supreme Court would
nut quietus on that sort OF law. Even
the author Of learned Virginia law-book
denied in his work the doctrine asserted
i,y Judge Hughes. We know the sequel.
The Supreme Court sustained the ruling
OF the Circuit Court, and the dissenting
opinion OF Justice Gray, though most able
and learned, was essentially nothing bit a
string OF precedents and technicalities.
The question then was precisely the
same as that now under consideration, ex-
cept that the United States, instead OF
State. was the defendant sued. The cause
OF action was the same-namely, the viola
tion by Government itself Of a provision OF
the Constitution, to the injury OF its own
Was that Government amenable
TO suit brought by the person whom 1t
had ipjuredf Judge Hughes entertained
and decided the suit against loud chorus
of objections from technical lawyers Of the
Dominic Sampson type, exclaiming, "pro-
dieioys"! extraordinary Even that
grand original mind and advanced INTEL
lect Alexander Hamilton was vouched
against him. But the extraordinary
view prevailed prevailed because the
great ends OF public justice would be
fhwarted IL it had not prevailed.
We are dealing with the case OF State
which Is alleged to have violated the Con-
stitution TO the injury OF her own citizens,
and repeat that 1t would not Jar against
the fitness OF things II the Constitution
should be found to provide tribunal OF Its
own In which the injured citizen may seek
redress. Has 1t done so in the general, UNI
qualified provivion Of section 2. Article
Ill, declaring that the judicial power OF
the United States " shall extend TO all cases
in law and equity arising under the Con-
stitutlon and laws OF the United States +" 4!
1t Il true that this section does not pro-
prio vigore confer jurisdiction upon the
Federal courts. The previous section had
left that subject to be regulated by Con-
gress. The Constitution grants large area
OF Jurisdiction. much OF which Congress
has not seen fit to occupy. But it has fully
utilized the jurisdiction granted by the
general clause Just quoted. At first 1t did
not. Its first statute setting the judicial
machinery OF the United States in motion
was the Judiciary Act Of 1889, drawn by
Mr.. Ellsworth, afterwards chief justice.
This statute ranks in American history
with the Declaration Of Independence and
the Constitution themselves. The thir-
teeDth section Of this great statute provided
that tue Supreme Court OF the United
States should have /. exclusive Jurisdiction