Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1888-04-24
TUESDAY. .......".APRIL "a, 1888.
Mr.. Conway-Again.

agree with what you say Dispatch April
10TH of my lack OF the legal mind. but not
TO vour illustration OF it. For that which
Won call an argument from conse-
Ouences is, albeit disguised, plagla-
rlsm from Chief-Justice Marshall. In
fact. q consciousness Of the Deficiencies
YOU ascribe 10 me has led me TO rely on
great legal authorities. But | have GER
tainlv misunderstood them if some OF
your positions are right. Thus you say !:
1.-THE Constitution forhids Virginia to
be sued by her own citizens, or by citi-
zeps Of another State, or by aliens, and
there is an end Of it." Had you only
gwen the reference to that prohibition
in the Constitution there would indeed
he can end of it." and the State OF
North Carolina would not now be APP
pealing 10 the Supreme Court against
Alfred Il. Temple, respondent. Your
view is, | know, Hamlltonlan. 1T IS
inherent in the nature of sovereignty not
TO be the suit of an individual without
It's consent. The exemption. as one
OF the attributes of sovereignty, IS now
enjoyed by the government OF every
State in the Union" (Federalist, No.
ST. To this oppose the old Democratic
doctrine of Jefferson. and OF our Repub-
ican fathers not born, like Hamilton,
in a refuge Of despotism. say "refuge, "
for it was because political superstitions,
extinct in England, were long afterwards
fostered by the pretty knglings in her
colonies, and especially in the West
Indies, where Hamilton was nurturet,
that so many fallacies concerning Eng
lish law survive in this country. Among
these am constrained TO include your
notion that the English Government
can only be sued by its consent If,
as l understand 1t, this means
an expression of will in each case, 1t IS
only true in the same sense that an i'll
ferior court consents to an appeal.
Though the phrase petition OF night -
survives, it is only by tradition that 1t
still attaches to a right. 1t IS a
grievous error to suppose that TN
English Minister'S responsibility be-
fore court for his ministerial ac-
tons can be escaped. The Govern
ment consents, but Its consent was given
ages ago. Conway Robinson IN his
History of English Institutions" one
of the great books, has traced the legal
responsibility of the English State as far
as Henry Ills infancy, in the early
thirteenth century. Despite HamitOn's
high notions of the sovereign whose
political actually was reducedin England
10 the title Of . cOin-the amenability
OF a State Was placed in the Constitution
of the United States. There is no reason
ythe trainers of thatinstrument should
have meant aliens TO have more prOtec-
ton in Virginia than Nirginians. When
the right Of the alien was specifically
taken away that of the citizen was left.
Erpressio tulitIS est erctlLslO dHer{us.
OF course the responsibility OF State to
a Federal court can only be IN cases IN
volving Federal questions. To that
State consent is indeed requisite, and it
was given irrevocably hundred years
ago. What, then, is the meaning OF
Sovereignty" in the presence OF law?
No such word as "sovsreign" occurs in
the Constitution. When the American
ceased to be "subject" it was
because there was no Sovereign" left
in the country. Instead of sovereign "
and "subject America recognizes only
the Constitution and the citizen. No
body is above the law or beneath its
equal protection.
For support OF these doctrines / beg
TO refer you to Chief-Justice Marshall's
opinion in Cohens vs. Virginia, 6 Whea-
ton. 264 to Story's in Martin as. Hunt
er'S Lessee, Wheaton, 81 to the
Chief Justice in Anles rs. RGnzGs, III
United States, 1863; to Judge Hughes
in Harvey Us. The Commonwealth, 20
Federal Reporter, page All also in the
decision of the same Judge In The
Norfolk Trust Company rs. Morton
Marye, AuditOr. In the North Carolina
case, now impending in the Supreme
Court, Judge Strongs opinion has an
important reference to the eleventh
amendment: "The case OF COhenS as.
Virginia was decided long after the
amendment was adopted, and AHles as.
Kdnzds was decided in 1884. In neither
OF these cases was it thought the amend
ment had any applicability to suits in
the courts Of the United States by citi-
zen of State against the State of which !
he is q citizen" In the recent contempt |
cases TO which you refer the eleventh |
amendment was involved and the ques-
ton OF a States amenability to its own
citizens was not determined.
Very respectfully,
MoNCURE ID. CONWAY.
go tcest Ffty-ninh street, April 20,
1888
Notwithstanding what we have said
heretofore and hereinbefore concerning
Mr.. CoSwAY's abilities, We shall not be |
wanting in respect if we say of him, as
The Nation last week said Of MATHEW
ARNOLD. that sit cannot be said that his |
excursions" in the field OF political |
questions we're happy or successful.
"He Is wanting in the faculty known as
the political sense, the sense Of the prac-
ticable, without which no man can phi
Josephine on questions Of government |
with any advantage 10 himself or others. |
lie, therefore, always appears in an un-
favorable light when he comes down
from the upper air Of social and reli-
gious speculation in which he usually |
dwells 10 criticise the politicians and |
politics Of his time"
First, Mr.. CoSwAY asks us to give the |
reference to the prohibition in the Con
stitution which forbids Virginia to be
sued by her own citizens We DO so
with pleasure. The fourteenth amend
ment in terms forbids Virginia to be
sued by citizens OF another State or
citizens or subjects Of any foreign State.
Why did not the fourteenth amendment
forbid her TO be sued by her own citi-
zens? For the simple reason that her
own citizens had never bad the right to
nae her. Section Of Article Iii. pro- |