Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1885-02-19
Judge Uughes's Opinion.


To HE Editor Of tie Dispatch:
The astonishing lengths to which
Judge Hughes has gone in his late dcci-
sion-Parsoasr rs. MGrye Ell dl.-5ids fair
TO win for him an uncnviable distinc-
ton. 1t will he remembered that in
HaJrey rs. Bldir he went out of the
way to make the novel suggestion that
under the Federal law of 1879 State
might be sued by its own citizen in a
Federal court. In the present case he
makes a State amenablc to suit at the
instance of citizen of another State,
and that in the face of the eleventh
amendment. True, he does not
meet the difficulty face to face,
but treats it as suit against indi-
viduals. At the same time. in the
paragraph that concludes the opinion,
hc shows a disposition to impose a re.
stricton upon the awarding of the in
junction in future cases in view of the
extraordinary lengths to which the prin-
,iplc might be carried against the Urea
aury: as if in this he did not admit
freely and fully that the suit was one
against the State. Hamilton declared
the public revenue to be the vital
principle of the body polite -; and
the suit brought by Parsons without
the consent of the State attacks the life
itself Of the Commonwealth.
Judge Hughes is perfectly consistent
in his present views with those eX-
pressed by him in Harvey rs. Blair de-
cided last year in the Circuit Court Of
the United States for the Eastern Dis
trict of Virginia. Certainly if, as he
maintained in his note to his opinion in
that case. citizen may sue his own
State in Federal court, q fOrtiori
may the citizen of another State do the
same. The former proposition, in fact,
asserts a more mOnstrouS principle than
the latter. There seems indeed much
greater reason why State should pro-
vide by contract for the rights Of foreign
citizens than for the rights of its own.
Patel tells us that the high duty Of
every State is to promote the welfare Of
its citizens; and it is repugnant to the
idea of society that a State should seek
the injury Of its own people. But a State
owes no duties to the people of another
State except such as result from cx-
press contract: and hence it would not
have appeared a strange thing had the
States in forming the compact of the
Constitution provided expressly that a
State should be liable to the suit of
citizen Of another State. This. how
ever, they did not do. The Constitu-
ton did indeed give the Federal courts
jurisdiction of case between a State
and citizens Of another State but this
had to be construed under the limita-
tons OF the circumstances of the con-
tract. The Constitution was an inter-
national compact; and the most sacred
principle Of the law of nations is that a
sovereign cannot be sued without its
own consent. In the absence. then, of
an express provision taking away this
exemption the jurisdiction Of the Fede-
Ial court could only attach to cases
arising in the natural way where a
State was the party plaintiff.
In the Virginia Convention OF 1888
the whole subject underwent the most
solemn review. The destiny Of the
Union hung upon the arguments there
employed; and the debates, therefore,
have been always regarded as the best
eXpOsitor of the constitutional inten-
ton. In that Convention James Madi-
son, who has been styled the Father Of
the Constitution. secuted the idea that
individuals should have the power to
call any State into court (Elliot's De-
bates ill.,. page $3.50. Every power had
TO be explained by its context. If the
power of suit between a State and
citizen of another State was one-Sided.
it was on principle no more SO than
what prevailed eNen in the most
ordinary questions. As illustra-
ton. the Constitution provided that
suits between citizens of different
States might be carried into the Federal
courts. - But this" said Madison,
would not 90 beyond cases where they
may be parties. A femme corer may
be a citizen of another State but can
not be party in these courts. A sub
ject of a foreign power having dispute
with citizen of this State might carry
il into Federal court but an alien
enemy could not bring suit at ALL"
Judge Hughes referred to the authority
of Chief-Justicc Marshall in support of
his views in Harvey es. Blair. Mar
shall never passed on the question in
court, and what he says extraordinarily
by no means bears the construction
which Judge Hughes imposes. But his
language in the Convention of 1887 is
utterly at variance with any such idea.
There, like Madison, he Indignantly re-
PEELED the idea that a State could be
called to the bar of the Federal court.
=" 1t is not rational to suppose that the
sovereign power should be dragged be-
fore a court" (Elliotiii., page $3.50 And
yet what Marshall deemed so disgrace
iul is not only supported by Judge
Hughes, but the amendment itself, az
forwards added TO the Constitution 10
relieve the subject Of all doubt, is