The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-06-22

Constifutiop 10 The FcGerh uoVcIn'hc"'
hv which , State could be sued ~ It's own
citizens. Second. Tbatas an Original pro,
nosi,,on sovereign State cannot DC sueu
syccnt by It's own consent, and IN manner
and form consented TO and chosen ny
;,seIf--or. unless a State surrsnders poi-
lion ~ It's sovereignty (Which undouDteuiy
h.s been done by the States OF TINS Un'ohJ,
and lie liability TO be sued was Included
In that norton. which OF course we dehy
ga 10 a citizen suing his own state, put
which depends upon the instrument under
which the surrender was made--in th's
case upon our Constitution. Third. Inst
The decision In Chisolm Us. virginia,
DalI. 40. which decided that state
conld be sued by citizen OF another
state. created so much disquietude through-
ont the whole sisterhood OF STATES
that the eleventh amendment was passed
which said. "The judicial power shoH nor
be construed" to extend TO such CASE
showing plainly that II was never the IN
tention OF the Constitution that state
could be sued, (by its own citizens In Tue
Federal courts.) This was mandate by
the States 10 the judiciary, that the con,
,titutIon should not be construed as IL had
been done: 1.-THE reason for retaining lurls-
djction In the other cases enumerdted IN
which n State could be sued was Tor the
preservation OF peace. which reason VIII
be taken up further on.) Then, in the case
~ Uollingsworth Us. Virginia, Dali.
ais. IL WAS decided that not only no future
suit could be brought, but also that turis-
diction could not he exercised as to suits
previously instituted against State by the
citizen Of another state, which decision
seems to confirm the construction ana
meaning here put on the eleventh amend.
ment. judge Marshall, in the case OF
Cohens Us. Virginia, page 400, takes a
somewhat different view Of this amend
ment, but am not inclined to ngbt MN
on that differences his view asVI ipes Vno
amendment to other causes, but at the same
time enforces and presents additional rea-
sons for the truth OF the main pro-
position now under discussion. speak
ing of this amendment: "Ihat us
motive wa. not TO maintain the sovereignty
OF a State from the degradation supposed
to attend a compulsory appearance Deiore
the tribunal OF the nation may be inferred
from the terms OF the amendment"
We must ascribe the amendments, then,
"a some other cause than the dignity OF q
State. There Is no difficulty in finding
this cause. Those who were inhibited
from commencing a suit against State,
or from prosecuting one which might be
commenced before the adoption OF The
amendment, were persons who might pro-
baby be its creditors. There was not muci
reason to fear that foreign or sister state
could be creditors TO any considerabi'
amount, and there was reason 10 retali
the jurisdiction Of the court in these cases
because II might be essential 10 the preser
walton OF peace. II jurisdiction was eVel
given in suit by citizen against his owl
State, was there any such reason As I'M
preservation OF peace" Tor retain
ing that jurisdiction! or was Their
any such reason for even giving II
Al this was the reason assigned for GYMS
the Jurisdiction in cases between citizens
another State and State, and between for
eipn citizens and a'State? But does not tn
VIEW language Of that last clause sbov
quoted exclude the idea OF any such juria
diction wiz, "There was reason TO retail
the Jurisdiction in these cases" Wha
casess Those enumerated in the COnstltu
ton, article 3, section 2. Now, II IL ma
ever been thought that by inference cltlze
had right to sue his own State, is 1t nc
reasonable to suppose that Judge Marshal
would have mentioned that the turlsdlctlo
was retained in such case, whc
was not included in the amendment, Jus
as he did mention that jurisdiction wa
retained in the other cases, which als
were not included in that amendment
The fact is, Judge Marshall never enter
tanned for moment the right OF the cit
zens of a State OF this Union to sue tina
State, Now let us review the case OF &C
hens as. Virginia, G Wheaton, page 264, 8
far ONLY as Is necessary for the purpose
this argument. 1t isa very long case, an
OF course / shall condenss as much as po:
sible. This case has been and is relic
upon in support OF the proposition that
citizen can sue his own State in the FEEDER;
courts. This is due to an entire misconcel
ton OF the case, or, without intending an
discourtesy, to careless and narrow roa(
ing OF the case. 1t Is my purpose to cll
extracts from that case, and to review IL !
support Of all three OF my propositions, BIT
particularly TO repel the views OF Mr.. Roya
and "Amicus Curia" as to the scoI
and meaning OF section 2 article
of the Constitution-yiz.: "The lud
cial power shall extend to all cas'
,, in law and equity arising under the Col
stitution." &c. What is the case OF c.
hens '. Virginia? The case was pros
cution commenced by the State, (the Sta
was party plaintiff; it went up to the s.
preme Court on writ Of error from Il
Hastings Court OF Norfolk borough. III
defendant in error moved to dismiss u
writ for want Jurisdiction; the first poll
in support OF this motion was that sta
was defendant pages 40S-1O0 Judt
Marshall held that the State was ptd'htl
and not defendant; in effect saying, tn
, II defendant, Jurisdiction OF the court WI
excluded, but that the case was not excl
ded by the character Of tie pdrtieS-plea
keep this distinction in mind. 1.-The fir
question" says Judge Marshall, "to
considered is whether the Jurisdiction
the court is excluded by the character
; the parties, one OF them being State al
the other citizen OF that State
He decides that the jurisdiction
not excluded IN the character Of 4
pdrties. But you will see as yC
read and follow his decision that he meal
to say, il he does not say SO III this vel
language, that where State is party d
fendant there is no jurisdiction over Il
case in the Federal courts, except in tho
cases enumerated, such as between a Sta
: and a foreign State, DC. The reasons I,
the same are striking and convincing.
=, discussing the jurisdiction given to Il
courts in the two classes Of cases, one ella
being dependent upon the character OF Il
parties, and The other class on the chara
. ter OF the cause. he says: "The jurisdi
!, ton OF the court, then, being extended
= the letter Of the Constitution to all cas-
!, arising under it, or under the laws Of Il
! United States, it follows that those wi
y would withdraw any case Of this desert
y ton from that jurisdiction must susta
- the exception they claim ON the spirit al
" true meaning OF the Constitution, whiC
spirit and true meaning must be so q
parent as to overrule the words which
trainers have employed" Note well h