Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1888-03-04
A CELEBRATED CASE.
OSBORN AGAINST The BAEK-AN IN
TsRESTIsG DISCUSSION.
somo Points Msde by Mr. John Scott, OF
Fauquier County.
TO the Editor Of the Dispatch:


to invite attention somewhat particularly
TO one Of the ulterances OF the Supreme
Couh. speaking through Mr.. justice
Matthew. az It's October tenn, 1857. il
the VITQinia hdbC06-cOrDuS cases, that
silence may not be construed into acquI
essence. Several points were decided in
that case important to the people OF : IT.
gina 70 which in The first place aliu-ion
NAV he made. The decision settles that
the Commonwealth hes the power &c
order suits 70 be instituted and judg.
mpnts recovered on the tax bills of such
persons IA rendered coupons, and that
tax-receivahie coupons cannot be forced
into the Treasury o. the state until aftei
they have been duly verified. That de.
cislon informed us, too, that Federal
courts could not be converted by
the creditors Of the States into
debt collecting agencies, nor could
they be used by London specula-
tors who had purchased coupons
to realize their expeditions OF gain.
Not the least valuable feature Of the ed
Indication was that part of it which de-
tcrmined that being party to the record
is not the only test that a suit is against
State, and so within the prohibition of
the eleventh amendment Of the Consti-
tuition. That hard, narrow, and iniiexi-
bic rule OF construction with almost q
full chorus of voices is repudiated by
the Supreme bench as receiving no
countenance from the Constitution. But,
in the slow march OF events, the correc-
ton did not come until after the de-
cision had fulfilled its mission Of evil
and enabled the Federal Government to
force the United States BGnk-an un-
constitutional creation OF Congress, as in
now agreed and was then contradiction
n protesting State OF the Union having
that large residuum of sovereignty now
accorded by the Supreme Court to each
State. A more enlightened canon OF
construction has been revealed to
tine Judges and announced in the
habcaS-c0ypus cases, although it is q
subject of surprise and regret that they
did not adhere to so sound rule of i'll
depreciation in every part Of then
opinion. But they had gone wrong in a
previous case and supposed it necessary
to defend their infallibility. Such is a
court rcstigi2 retyOT8uH. The
new rule for constituting the eleventh
amendment is expressed by Mr.. Justice
Matthews in these excellent words, which
deserve u place in every judges me-
mory: "To secure the manifest purpose
Of the constitutional exemption guaran-
tecd by the eleventh amendment re-
quires that it should be interpreted, not
literally and too narrowly. but fairly and
with such breadth and largeness as eff
fectualiy to accomplish the substance OF
its purpose. IN this spirit il must be
held to cover not only suits against q
State by name. but those also against
its officers, agent, and representatives,
where the State. though not named az
such, is nevertheless the only rea
party against which alone in fac
! the relief is asked, and agalns
which the Judgment or decree effectively
operates" This language with precision
indicates the proper ROAD. Other judges
will trend it, and it Will become recog
nized highway. The judges OF the court
! Mr. Justice Matthews foremost amone
them, have had the courage and strength
to break fettcr of iron fastened on then
bv preceding courts, for which they merit
/ the Gpp' Sc OF the nation. Ii would
have been fortunate for the States has
the opinion prepared by the learned
Judge ended here. But it did not enc
here. A legal proposition IS advanced
l gt~11 al, &c q
ve.0pmeut will produce great mischle
| unless eradcsted from the judicial mind
"The legislation" continues the opin
/ ion. "under which the defendant JUST
fed being declared null and void, as con
trary to the Constitution OF the Ubitet
| States. therefore left him defenceless
subject to answer for the consequences o
his personal act In the seizure aud deten
ton of the plaintiffs property and re
sponsible for the damages occasiOneC
thereby" Pamphlet edition of the case
page %.
This was intended to Justify Poindex
ter against Greenhow. ia United State
Reports, p0ge 268, likewise Il Virginia
case. and which sets heavily upon tn,
I conscience of the learned Judge who de
/ lvered the opinion i'll that case, as hi
purified vision informs us. That was {
7 Judgment against local treasurer fo
distralnng tue property of tax-paye
who bad rendered coupons. The treasu
rer acted under the mandate OF a statute
which was youched to justify the seizure
aud was produced III court. Taken IL
/ connection with the facts of the case, tn,
statute positively established the relation
of principal ana agent between Virgins
and Greenhow. As an artificial anC
/ legal person State can proceed in NJ
other way than through the medium o
an agent and the suit instituted aGains
/ Greeuhow WAS one brought agalns
the State OF Virginia, OF which th'
court had no jurisdiction. The onl,
/ question before the court was one o
iact-Did the agency exist? As to thi:
/ point, no room was left for doubt by the
/ circumstances of the case and the word
of the Law. Why, then, was not the sui
dismissed? The reason given Is pecu
liar, and shows the manner IN whicl
these supreme beings argue when they
mean TO evade the Constitution and make
1t their Jest book. They aileGe that The
statute OF the state, IN their opinion
was unconstitutional. but that could no
effect the fact OF the agency, which haC
been proved, and upon which the Con
s;ituiOn instantly operated. There Is NJ
way open for escape from the difficulty
except roundly to assert again that /
State can do no wrong, and that an an
constitutional statute Is not its act. Wit
his large knowledge and great ability
Mr.. Justice Matthews knows that there II
no such fiction recognized by our law
and that the allegation is not true. The
collection OF persons vino constitute
State are exposed q all tie
influences Of error and passion
and are supplied with the means Of
giving them effect, amt So arc as peaceabiC
as any individual OF the mass. Why
does the supreme Court OF tue Unitec
States found an important decision upon
a fiction not Of law, bat OF fact, anc
shown to be a fiction by the most undo
niable testimony? Burke SAID q mac
becomes Il worse reasoner by beng
prime minister Had he lived IN oul
day he would haya applied his remark