Year: 1879




Will have no sympathy in the courts


Not so if we say we will pay notl
ing.


Our danger lies in q question nc


yet raised and while some may So


that we need not raise questions TO


our creditors, true wisdom is TO as


sumo that the legal profession, WheI
taxed to protect and save twenty


Eve or thirty millions, will quickl,


see whatever is to be used in tn


way of legal redress.


1t is supposed our safety lies il


the Eleventh amendment to th'


Constitution of the United States


In these words: "The judicial power


of the United States shall not be


construed to extend to aHy suit 10


law or equity, commenced or prose


cuted, against one Of the United


States by citizens of another State.


or by citizens or subjects of a for


eign State.''


And certainly under this provision


OF the Constitution, the State Of


Tenne ssee cannot be sued; but we


had az we'll make mp our minds that
we will have to meet the question !;


whether the holders of our past due
coupons being citizens Of other
States can, without making the State
8 party--in the United States Courts
sequestrate our revenue as it may be
collected, and by making the State
officers aud collectors parties, ap.
propriate enough of our revenue to
pay the coupons on the entire debt
as they may fall due. A careful ex.
animation of this question will salts
fly the profession that we are in
great danger if we fall into the hands
of progressive court, willing 10
make some advance in favor of cred
itors about to lose all. By an ex.
animation of the case Of Osborn VS..
United States Bank, 8 Wheaton 736,
it will be found that the Supreme
Court of the United States, while
Marshall and Story we're both on
the bench, Marshall delivering the
opinion, decided that "8s the State
cannot be Joined as a defendant, it's
agent may be sued alone. And if
le has specific moneys and notes
Vrongfully taken they may be or
Tered to be returned. and that the
to sue a State contained
a the eleventh amendment to the
does not extend to
'ases in which the State is not made
. party on the record, even If the
State has the entire ultimate inter
st in the subject OF the suit"


This was 4 suit brought by the
Bank of the United States VS.. the
Auditor and Treasurer of the State
f Ohio, setting forth that under an
ct of the Legislature of that State,
he State had levied and collected
98. 900 from the Branch Bank of the
United States in Ohio, and that this
vas illegal, the State having no right
o collect taxes from this bank. And
'erhaps no case that ever came be-
ore that court was more fully con.
idefed. and at last, after re-argu-
neht Che court affirmed the decision
# the Circnit Court holding that
he State officers should restore the
money to the bank, the money hsV.
ng been collected as before said
Inder an act of the State of Ohio
evying a tax for the benefit of the
State on the branch of the United
states bank of Ohio.


Among other things the Court {
aid:
If the State of Ohio could have been
nade party defendant, it can scarcely
e denied that this would be a strong [
ase for an injunction. The objection ,
} that, as the real party cannot be
rought before the cSurt, a suit cannot
e sustained against the agents of the !
arty and cases have been cited to
how that court of chancery will not I
lake decree, unless all those who are r
interested be made parties ,
} the suit.


This is certainly true where it is in
le power of the plaintiff to make them /
arties; but if the person who is the 8
.al principal, the person who is the {
ue source of the mischief, by whose I
over and for whose advantage it is
one, be himself above the law, be ex-
npt from all Judicial process, it would
e subversive of the best established T
to say that the laws could not o
ford the same remedies against the C
gent employed in doing the wrong
hich they would afford against him
Ould his principal be Joined in the suit. =
And again the Court said: n
The fifth objection TO the decree is y
lat the case in the bill does not war d
mt the Interference of court of chan v
.ry. In examining this question it lie 4
-oper that the court should consider :.
ances. The original bill prays for an
junction against Ralph Osborn, Audi a
T Of the State of Ohio, to restrain him a
ON executing the law of the State to G
e great oppression and injury of the :
.mplainantS and tA the destruction Of 80