The morning news. [volume] (Savannah, Ga.) 1887-1900, 1888-01-23

by citizens of another State or by citizens
or subjects of any foreign State The
! amendment was speedily adopted, and the
supreme Court then unanimously decided
that the case against Georgia could be no
further prosecuted, and it was swept at once
from the records of the court. Such is the
history of the way i'll which
THE ELEVENTH AMENDMENT
came to be adopted.
The Supreme Court at that time was pre-
! sided over by John Jay, of New York, Chief
Justice; with William Cushing, of Massa-
chusetts; James Wilson, of Pennsylvania;
John Blal~, of Virginia; James Iredell, of
North Carolina; and Thomas Johnson OF
Maryland, associate Justices Jay, Wilson
and lredell were unquestionably the ablest
of the number, and of these three, Jay,
on account Of his longer public ca
reer and the exalted positions he had
held, was the most distinguished, and Viii
son the most erudite. OF Iredell it is
enough to say that North Carolina never
had brighter exemplar of that wisdom and
Integrity, and that simple dignity and
modesty so characteristic of the illustrious
men of that State, In the great case of
which write he was the only Judge who
upheld the constitutional righu asserted by
Georgia and it is impossible to arise from
| the realing of his dissenting opinion with
out being convinced that, as a conStitu-
tlonal lawyer, be had no equal on the
bench. The soundnesS of that opinion
was attested by the subsequent over
throw of the Judgment of the court by the
| eleventh amendment. Chief Justice Jays
| opinion in this case was by far the most
elaborate delivered by him while on the
bench. That of Judge Wilson is a striking
display of the wide range of his erudition.
| The momentous nature of the question
| under consideration was stated by him in
the following words; "This," he said, lis
CASE OF UNCOMMON MAGNITUDE.
One Of the parties to it is a State, GER
tainly respectable, claiming to be sovereign.
| The question to be determined is, whether
| this State, so respectable, and whose claim
scars 50 high, is amenable to the jurisdic
| ton of the Supreme Court of the United
| StatesY This question, important in itself,
| VIII depend on others more important still !;
and may. perhaps be ultimately resolved
| into one no less radical than this: DO the
| people of the United States form nationp"
Profoundly impressed with a sense of the
! consequences which he foresaw would flow
| from the doctrine of his associates on the
| bench, Judge Iredell, in closing his dissent
| ing opinion, said: Il pray to God that if this
| do ,trine as to the law be established by the
| Judgment of this court, all tie good pre-
dicted from it may take place, and none of
the evils with which, | have the concern to
say, it appears to me to be pregnant" Moth
| ing but the amendment compelled by Geor-
| gia's unyielding attitude averted the evils
which this great Judge so feared.
THE DOCTRINE OF THE ''FEDERALIsT'' RE-
PUDIATED BY CHIEF JUSTICE JAY.
To the mind of the student of those times
one remarkable fact must occur in connec-
ton with this decision of the Supreme
Court. When the constitution had been
| 1
for that approval from them which was
necessary to put it in operation, it was
SO strongly opposed in some of the
States as to make the required
ratification doubtful. The opposition
to it was based chiefly on the alleged ground
that it made the United States government
too strong and left the State governments
too weak; that it took from the States the
sovereignty which was theirs and ought to
remain theirs, ana conferred it on the
United States, making of the latter a con-
solidated national government, which
would, sooner or later, ''annihiate" the
States instead of making of them that
federal government which was theavowed
object of the onvention that framed the
constitution. 1T squints towards mon
archy,n said Patrick Henry. "The govern
surely end either in monarchy or a tyran-
meal aristocracy," said Mason of Virginia.
ALEXANDER HAMILTON, JAMES MADISON
AND JOHN JAY,
who were leaders of the National party, ac-
| cepted the constitution as a compromise be-
tween the Nationals and the Federals State
Rights mem of the convention, and they
advocated its adoption because, as Mr.. jay
said, they thought it improbable that a
better plan could be obtained" To answer
the objections. dispel the fears and win for
| it the votes of those who thought the States
were left too powerleSs by the proposed plan
| of government, they wrote, in conf notion,
a series of papers in which they indicated
it from the charge OF despoiling the States
of their rights or sovereignty These writ
| ings exercised powerful influence on the
public mind They were published in the
newspapers of the day, and subse-
quently in the form of a book called
the "FederaliSt,n of which Chancellor
Kent sad: Il know not of any work on
the principles of free government that is to
be compared in instruction and intrinsic
value to this small and unpretending vol
ume.n This DO was then, and is still re-
garded as the ablest contribution to Amer
lean political science.
One of the specific suggestions urged
against the constitution was that it would,
if adopted, place the States in situation
where any one of them might be subjected
To this the "Federalist" replied that the
danger intimated was merely ideal" and
that there was ''nO colour to pretend that
the State governments would, by the adop-
ton of the constitution, be Invested of the
privilege Of paying their own debts i'll
their own way, free from every
constraint but that which flows from
the obligations of good faith" To what
purpose" it added "would it be to authorize
suits against States for the debts they owe'
How could recoveries be enforced. 1t is
evident that it could not be done Without
avdqing tUar against the contracting State;
ana to ascribe to the Federal courts, by
mere implication, aud in destruction of
pre-existing right of the State governments,
q power which would involve such conse-
quence, would be altogether forced and
1tn1Cdrrdntdbte."
That not more than five years had
elapsed, after the penning of these words,
when this power tcGS assumed by court
presided over by one of the authors Of the
''Federalist," is what, l say, must strike the
reader as remarkable.
JUDGE CURTIS SURPRISING MISTAKE.
Those who are familiar with the case, and
who have also read the memoirs" of the
late Associate Justice Curtis, of the United
States Supreme Court, must have been sur
prised when they read that learned Judges
reference to the Every able opinion of Mr..
Chief Justice Marshall in the case of CHS
Ill, AGAINST C,aorpia II is indeed sir