Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1888-03-04


OF the Bank of the United States, re-
spondents. reported in 9th Wheaton.
73s. II is not without hesitation that
venture TO criticse that celebrated opiu-
ion but il must not be forgotten that error
is vulnerable and may be challenged liy
any adversary. The principal facts
of that case are as follows: BY
90 act Of the Ohio Legislature tax
WIS imposed on eash branch bank
OF The United States trdnsacting business
in that state. In accordance with this
law and on the authority OF Osbcrn the
Auditor. as provided in the statute Far
per entered the bank at Chlllicothe aud
q rvicd Oh con and notes sufficient to
satisfy the tax and delivered them to
Curry, the Treasurer, who passed them
10 the credit Of the State on the lrea-
surers books, but kept them in a trunk
separate from other money in the Trea
surv. The prop riy taken from the bank
afterwards came to the hands OF Sulh~
van. Curry's successor in Office, who re-
ceipted for 1t "a Treasurer. "not other
wise. as his answer states. tut retained
il in the trunk where it had been placed
by Curry. On the 18th OF September,
1919. bill was exhibited in the Circuit
Court OF Ohio against Osborn and Har-
per. and a writ OF injunction was served
on Harper whilst on his way to Colum-
bus. and on Osborn before Harper
reached Columbus. In September,
1890, a supplemental and amended
bill was flied making Osborn, Har-
per, Curry. and Sullivan parties. On
that bill the cause proceeded to final
decree against the defendants, and WAS
appealed 10 the Supreme Cout, where IL
was heard AZ the February term, 1874.
The court treat as undcuiuble law, ana
base their reasoning upon il, that prin-
cipal in trcspass Is jointly liablo with
the agent who commits ii, and that it is
error if he be not joined rs party to tie
sut. The court say The fact IS made
out in the bill that Osborn employed
Harper to do an illegal act, and that he
is Jointly liable for it is as well settled as
any principle OF law whatever page
S37.l Putting the eleventh amendment
ont of view, the law as stated applied to
Ohio and its agents in that transaction,
the court saying: 1.-The direct interest
OF the state in the suit brought is adj
mitted, and had it been in the power of
the bank to have made the State party
perhaps no decree could have been pro-
nounced in the cause until the State was
before the court. But il was not in the
power of the bank to have made the
State a party, and thevery difficult ques-
ton is to be decided whether, in such
case, the court may act on the agents
employed by the State and on the pro-
perry III their hands - pages 8i0-7.)
Whilst the Constitution remained un-
altered by the eleventh amendment, il
it would have been incumbent on tho
bank to have united Ohio as a defend
ant in the suit, it is not clear that the
simple incorporation of the amendment
by the Constitution weuld have the
effect of throwing ON the agents and
subordinates of an excused and eXese-
rated political power the responsibility
for trespass which it had designed and
caused to be executed, and III which the
agents implicated were involuntary
actors. The states cannot accept this rs
the true meaning OF the eleventh amend
ment, however agreeable and suitable it
may appear to bench OF irresponsible
Judges. The sounder legio would appear
to he that when the Constitution OF the
Union. moved by weighty public
considerations, excuses the centrlyer
and true executor of an illegal
act, the amnesty is extended to
the agents controlled by the State.
It is principle OF universal justice never
questioned before, and is az applicable to
civil as to criminal jurisprudence, that
when a principal offender is pardoned or
his offence condoned the guilt OF the ac-
cessory is thereby extinguished. The
shadow disappears with the destruction
OF the substance. When the obligor in
a bond is released We do not hold the
surety bound. The judges of the Su-
preme Court are not legislators, at least
that is the design OF the Constitution,
and they ought to confine themselves to
a conscientious construction of the law.
II is not within the scope Of the Federal
plan to have judge-made law. If the
Judges desire an extension OF jurisdiction
to round and finish their system OF rene
dies let them obtain it by legitimate
means, rot get it by border raids on the
states. They ought to know and 10
know that q refusal by the Com
sctulion OF court jurisdiction
over State is not grant Of
it over the agents Of State,
as it appears to be thought The cling
ing by the court to jurisdiction forbid
den by the Constitution diminishes con-
fdence in tribunal which must stand,
as other courts do, on their rendered
reasons. The sum OF the matter Is this :
the Judges OF the United St2tes have
been expelled from jurisdiction by
the front de0r, aud, by false keys, they
have re-entered by the back door.
1t will afford an additional view Of
Osborn against the Bank. on which the
learned brothers 50 greatly rely. if we
step back in the life OF the Constitution
to a period anterior to the birth OF the
eleventh amendment The record then
would exhibit the State OF Ohio as Joint
defendant with Osborn, Harper. Curry,
and Sullivan. 1t is known to every
reader that it is an acknowledged prin-
ciple of the superior law OF nations
which attaches to every domestic code
and is administered with ii when
ever a case arises, that an accredited
agent OF government i3 not personally
responsible for actions performed III q
line Of prescribed duty, but IS covered
by the ggis of its authority. This con
dlton is indispensable, for without 1t
governments could not command the
obedience OF their subordinates Under
the authority OF this law, OF uniyersalap-
plicaijon wherever civilization has plant
ed its banner, the bill against Osborn,
Harper, Curry, and Sullivan should nave
been dismissed but retained as to Ohio,
rs soon as the relation Of the doieni anis
WAS discoy red by the court for with
hands on the state there could have been
no failure OF remedy, which is consid-
cred 50 importanta matter, as it appears.
Jet a case may be remedlless ii the Con-
stitution has 70 ordered, and it may be
the painful duty Of the Supreme Court
to say so. There can be no doubt of the