The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-04-16
Ct. ROuntree's Great
Speech.
CONTINUED From First Page.

ALL controversies are not included. and
clause of the Constitution conferrinr
original jurisdiction upon this court.
IL Is settled by numerous decisions that
things were made justiciabIe by the Con-
stitution which were not known as SUCH
under the common law. he refers, by way
of illustration. only to such things as
boundaries. which had been the subject
OF judicial settlement by Congress under
THE ARTICLES OF CONFEDERATION,
and adds: "Of other CONTROVERSIES
BETWEEN A STATE AND ANOTHER
STATE or its citizens, which on the set
tied principles of public law are not sub
jects of judicial cognizance, this court has
often declined TO take Jurisdiction.
Again. in the same case, he says:
1.-THE truth is, that the cognizance
of suits and actions unknown TO the
law AND FORBIDDEN BY THE
LAW, was not contemplated by the
Constitution when establishing the
judicial power of the United States"
He then proceeds to show, by quota
tons from the writings and speeches of
Hamilton. Madison and Marshall. aovo-
eating the adoption of the Constitution,
and replying to the arguments of Patrick
Henry, George Mason and Richard Henry
Lee, that states were not suable at all
without their consent and that the Con-
stitution did no authorize suits against
them upon their debts, and quotes with
approval this extract from the opinion
of Mr.. Justice Mclean, delivering the
opinion of the court in Briscow VS.. Bank
of Kentucky. II Peters, PSI, 32l:
What means of enforcing payment
from the state had the holder of "A
bill Of credit? No sovereign
hor
consent. UNDER THE ARTICLES
OF CONFEDERATION. a State
COULD BE SUED ONLY IN CASES
OF BOUNDARY. It is believed that
there is no case where a suit has
been brought. at any time, on bills OF
credit against a State; and it is GER
tain that no suit could have been
maintained on this ground prior to the
Constitution
This, by the way. notwithstanding the
fact that by the Eleventh of the Articles
of Confederation jurisdiction was confer
red upon Congress to hear and determine
all disputes and differences BETWEEN
TWO OR MORE STATES CONCERNING
BOUNDARY, JURISDICTION OR ANY
OTHER CAUSE WHATEVER"
And we have been able to find no case
in which this court has entertained ju-
rsdiction in a suit on a debt against a
State, without the consent of that State
save in Chisholm's case. and that case
was expressly disapproved by MIR. JUS
tice Bradley in Hans VS.. Louisiana. who
apparently expressed the opinion of all
the members of the court, except that
of Mr.. Justice Harlan, that the views of
Mr.. Justice Iredel in Chisholm's case.
were clearly correct.
Mr.. Justice Iredell, following HaTil-
ton, Madison and Marshall, but without
quoting them. had earnestly insisted that
no action would lie against State to
collect debt.
And Hamilton. in his Report to Con-
gress. 1895. said:
Public debt can scarcely, in legal
phrase, be defined either as proper
ty in possession or in action. 1t IS
evidently not the first till it is re-
dueed to possession by payment. TIC
be the second, would suppose legal
owner to compel payment by suit.
Does such a power exist? The true
definition u.s. property subsisting in
the faith ofsthe government. Its es
sence Is promise It's definite value
depends upon the reliance that the
promise will be definitely fulfilled
ington VS.. Ark. 20 Howard, uses this
language
Those who deal in the bonds and
obligations of sovereign State are
aware that they must rely altogether
on the sense of justice and good faith
of the State; and that the judiciary
of the State cannot interfere to en-
force these contracts without the con-
nf 10 and the Courts of
the United States are expressly pro-
hibited from exercising such a juris-
diction."
And Mr. Webster in an opinion giveI
to Barring Brothers. and quoted with APP
proval by Mr.. Justice Bradley in Hans
case, said:
1.-The security for State loans is
the plighted faith of the State as
political community. 1t rests on the
same basis as other contracts with
established governments, the same
basis, for example, as loans made by
the United States under the authority
of Congress, that is to say, the good
faith of the government making the
loan. and its ability to fulfill its en-
gagements.
These expressions ought to be sufficicL
evidence that in the opinion of many o
our leading judges and statesmen Stat
debts were not made collectible by law.
Another argument against such suit
urged by Hamilton with much force ant
cogcncy in the S1st No of the Federalis
and by others. is that the court will no
take jurisdiction of suits against State
for debts because. in the great majorit
of such cases. the court would have n
process by which it could enforce tn
decree. Indeed. the only conceivabl
way would be for the court to superced
the officers of State, having control O
its fiscal affairs, and appoint receive
to manage the States business.
This the court is not prepared to do. a
1t seems to have put the stamp of II
approval upon Hamilton's argument. Fo
in u. S V. Guthrie II How. 2S4. Nj
Goodrich was appointed judge, and, be
fore the expiration of his term. he wa
removed and Mr.. Fuller was appointed .
his stead and received the salary. Nj
Goodrich. being refused upon demand, tn
balance of his salary. brought mandamt
against the Secretary of tho Treasury
compel it's payment. Upon writ OF errt