The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-04-16

0fY, not tenCeu IOuIiu OE SHieiutQ W
fixed and established modes and rules
of administration, but which could be
subjected to any number or descfip-
tion of demands. asserted and sus-
tanned through the underlined and un-
defnablc discretion OF the courts,
would constitute a feeble and made
quate provision for the great and in
evitable necessities | of the nation.
The government under such regime,
or rather. under such an absence of
all rule, would. if practicable at all,
be administered not by the great de-
! partments ordained by the constitu-
ton and laws, and guided by the
modes therein prescribed, but by the
uncertain, and perhaps contradicto-
ry action of the courts, in the en-
forcement of their views of private
interests"
OF course the argument is equally valid
against interference with the State
Treasury: indeed the Constitution Of
North Carolina expressly forbids the
taking of money from the Treasury ex-
cept by legislative warrant.
If it be said that this argument does
not apply to the present case because
property has been mortgaged which can
proceeds applied to the payment of the
debt, it is sufficient to say, that, as we
have attempted to show in the Brief, no
particular property has ever been de-
signated, identified or set apart, as COW
cred by the mortgage, and hence there IS
no valid mortgage, and complainant has,
il anything, only an action for debt, and
the argument just made is valid.
no inr iC1i inf
entertain suits against States to collect
debts at all, we contend that it ought
TO be confined to cases in which the debt
was due by one State to another upon
contracts. transaction, dealings directly
between the States, and should not be eX-
tended to cases where the obligations
were due to private individuals, and
which. they being unable to collect, as
signed to another State for collection,
even though the collecting State was to
be the beneficial owner of the proceeds
In the first place it was evidently the
| opinion of Hamilton that the Constitu-
| ton did not authorize, or permit, suits to
be brought against States on their debts
as the result of assignment; for, al
though he only refers to suits as the re-
suit of assignments to citizens of other
States the purpose of his argument was
| to show that in no event need the States
| fear that they would be compelled to pay
| their debts to suit in the Federal Courts
Apparently it never occurred to him, nor,
so far as We can learn. to any of the
other advocates of the Constitution
nor to its opponents-that the real dan
ger to the State of being compelled to
pay their debts by the process of the
Il H. % l.
clause comforting jurisdiction upon this
court of controversies between two OF
more States" 1t probably was not APP
pretended by the people when tne
Eleventh Amendment was adopted it had
not occurred to Chief Justice Marshall
when he delivered the opinion in Cohens
V. Virginia and the first intimation OF
it that we have been able to find is con-
tanned in a note by Kent in his COM
mentaries, who speaks of it but to doubt
| It.
| in the next place such an assignment
is against public policy and void
| In Ball v. Halsell, 161 u. S. TO- so, this
| court said:
"At common law, the transfer of
a mere right to recover in an action
at law was forbidden violating the
rule against maintenance and cham
perty; and, although the rigor of that
rule has been relaxed, an assignment
of chose in action will not be sane
| toned, when it is opposed to any rule
of law or public policy"
| This language was used in the case of
an assignment of claims against the
United States which was governed by a
statute, but it is of wider application.
| The Judiciary Act of 1889, (the work OF
| Ellsworth, C. j., an influential member
| of the Constitutional Convention), anC
all subsequent ones, prohibits suits b.
| the assignees unless the assignor could
sue, and while the act applies only tc
| the district and circuit courts, and there
| are exceptions. it manifests a genera
policy of congress with reference to the
relative jurisdiction of State and Fed
| eral Courts which may furnish an analogy
| in cases of doubt.
| Certainly one of the fundamental pur-
poses of the formation of the Constitu-
ton was to insure domestic tranquility
and jurisdiction of controversies between
two or more States was given to the
Supreme Court for the purpose of set
Ting disputes, allaying strife-not fol
the purpose of fermenting quar-.
rels. What surer method or arous-
ing animosities, engendering discord anC
oscillations can be conceived than by en-
couraging such suits? Such at any rat
is the lesson of experience-of tn
Chisholm case-and assignments TO
such purpose are, we submit, against tn
highest consideration of Public Policy
peace and good will among the States.
But over and above that, such an as
sgnment and suit controvenes the sptri
of the Eleventh Amendment.
One of the purposes of the people u
the several States in adopting tina
Amendment, according to Chief Justic
Marshall in Cohens V. Virginia, was t
prevent States from being compelled b
the compulsive process of courts, to pa,
debts due to individuals, which neithe
party regarded as suable when created
and If a debt, disowned, can be collecte
by the simple device of assigning it to
5 State. then indeed the Eleventh Amend
ment becomes a dead letter-is a ridicul
Gus mouse from the labor of the noun
tain. Individuals can compel the pay
ment of their debts by threat of assign
ment, or as here, enforce payment h
giving a complaisant State a substanti;