The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1884-06-08

I
a State may sue Its own citizen In Fede-
raj court. The Supreme Court, In the re-
cent case Just mentioned Of Ames Us. Kan
sas, held that Il may. This being indIs-
putable, where Is the authority for the dis
Iincticn between suit brought by State
and SUIT brought by citizen against his
own Statei There Is none. The same pro-
vision Of the Constitution and Of the judi
ciary act Of 1875 which gives the iHrisdic.
ton In one case gives 1t In the other.
These provisions make no distinction be-
tween the two cases, and there Is no dis
tincsion In reason. In order to assert the
distinction resort to construction Is neees-
sary; and IL Is Just as odi0us TO defeat o
provision OF the Constitution by construc-
| ton as to enlarge II by that means. The
strict constructionist, who ahhors the
thought OF going beyond the lei er OF the
| Constitution in interpreting its meaning, Is
| estopped from doing so In his appeal from
| It's letter in this instance to the inherent
Immunity OF sovereign power from suit by
private citizens.
The case OF Cohen Us. Virginia, @ Whea-
| ton, 3D7, was one in which the State pro-
ceeded against her own citizen for right
conferred by law Of the United States.
In his deliverance in that case Cbief-Justice
Marshall said, amongst other things:
"The first point made and argued b.. counsel Of
the defendant IN error, the State of Virginia, is,
that state lisa defendant. inc nrs'
question 10 be considered Is whether the jur1sdc-
ton OF hits court is excluded by the character OF
the parties, one OF them being state ana The
lother citizen of that state.
.Tbc second section OF The third article OF the
Constitution defines the extent Of the ludiclal
power Of The United staiei Of
In the first their jurisdiction depends on the chtr-
acter Of the cause, iohoerer may DC we Part,eS;
This class comprehends 'all cases In law and
equity arising under this Constitution, the laws oil
the United States and treaties &C. This clause
extends the jurisdiction Of the court to al AL
terms any exception whatever. ana WIFI
out any regard 10 the condition of the par
piled against te cypress cords Of the article.
~ The judcia. power Is authorized 10 de-
eide all cases Of every description arising under
the Constitution or laws of the United STATES
From this general giant of jurisdiction no exeep-
ton Is made Of those cases In which state NAV
he party When we consider ne ,a,o O. on ra, ne
ton 10 each other. the nature OF the Constitution,
the subordination of the state governments TO
that Constitution, thu great purpose for which iu-
risdictIon over all cases arising under the Consul.
tuition and laws Of the United States. Is confded
to the judicial departments, are we at liberty 10
insert in this general grant an exception OF those
cases In which q State may be party! WIZ
the spirit Of the Constitution justify this a..
tempt 10 control its words? We think 1t VIII
lno. We think a case arr ing under the Constitu-
ton or laws OF tine United States is equitable in
the courts of the Union, WHOEVER MnY BE THE
gave TO every person having claim upon a state
La right TO submit his cause TO the court OF the
nation. However untmpOrtant his claim might
be- however little the community might be interest
ed I'm Its decision. the trainers OF our Constitution
thought 1t necessary for the purposes of justice TO
provide tribunal as superb TO influence as pos
sible, In which that claim might be decided"
In the conclusion of this branch of his
L he 90 m
of section OF Article I'LL, It's "Obiect was
the preservation of the Constitution and
laws of the United States, so far as they
can be preserved by judicial authority, and
Therefore the jurisdiction OF the courts OF
the Union was expressly extended TO all
cases arising under the Constitution and
laws. II the Constitution or laws may be
violated by proceedings instituted by
La State against its own citizens,
land If that violation may be such
as essentially to affect the Const-
tuition and laws, such as TO arrest the pro-
gress of government in its constitutional
course, why should these cases be excepted
| from that provision whic1 expressly eX-
tends the judicial power OF the Union to
all (Sic) cases arising under the Constitu-
ton and laws? After bestowing on tais
subject the most attentive consideration,
the court can perceive no reason founded
on the character OF the parties for intro
ducing an exception which the Coustltu-
ton has not made, and we think the ju-
dicial power, as originally given, extends
! to all cases arising under the Constitution
or q law OF the United States, WHOEVER
MAY BE THE PARTIES"
The small capitals are mine. The SUI
preme Court Of the United States, in the
late case OF AmeS Us. Kansas, adopts and
reiterates these views. They are the law
OF the land.
| do not maintain that Cohen rs. Vir-
ginia decides in technical sense the ques-
ton we are discussing; but do hold that
the language of Chlef-Justice Marshall set
ties the principle that citizen NAV sue his
own State in q Federal court for q constr
tutional right OF which his State has de-
priyed him. The language of Judge
Hughes In Harvey a. Blair Us. Virginia
was in substance but repetition OF the
language OF Chiei-Justice Marshall in
Cohen Us. Virginia. i will remark that
the Cohen case related to the jurisdiction
of the Supreme court; the Ames case TO
that OF the United States Circuit Court.
As TO the paragraph from a number of
the federdliSt written by Mr.. Hamilton,
which your correspondent quotes, L have
to say that il was the result OF the authors
mistaken belief that the Constitution, in
giving original Jurisdiction of suits be-
tween States and their own citizens to the
Supreme Court. meant to give exclusive
jurisdiction. This opinion was not shared
by Mr.. Ellsworth, who was Mr.. Hamilton's
superior as a lawyer, nor by the first Con-
gress of 1889, many members OF which
were Joint trainers with both of the Con.
stitutlons, nor by the Circuit and Supreme
Courts of the United States, which subse-
Quently, in repeated cases, have passed
upon that question; nor by Chief-Justice
Marshall, who delivered the opinion in
Cohen Us. Virginia; nor py Chief-Justice
Waite, who delivered the opinion In the |
late case Of Ames Us. Kansas. Mr..
Hamilton's view was therefore err
roneous. The argument which Mr..
Hamilton based upon that erroneous view, |
aud which your correspondent quotes, can |
consequently have no force. 1t was en- |
ployed by counsel for the United States in |
the al gument OF the Arlington cases, and |
was overruled by Judge Hughes in the |
Circuit Court OF this district and by the |
Supreme Court on appeal. Notwithstand- |
ing the illustrious character Of its author, |
II Ia an obsolete proposition in its relation |
to the question under consideration.
And now, to conclude, what Is the pro.
position employed arguendO by the Judge |
in the United States Circuit Court in the |
late ease OF Harvey & BLAIR as. Virginia |
1t Is that when the Constitution OF the |
United States gives a right, and in its gene |
raj grant OF iurisdictional powers to the |
Federal courts employs general language |
comforting power on those courts TO enter |
tam, hear, and decide suits brought by cit
liens against their own States for the reco-
very Of constitutional rights OF which their