Chisholm v. Georgia

2 U.S. 419 (1793)

(Private Citizens Suing States)



In 1792, only two years after the Supreme Court of the United States convened for the very first time, a man named Alexander Chisholm attempted to sue the state of Georgia in the Supreme Court. The plaintiff was the executor of the will of a man named Robert Farquhar, who had lent weapons to the state of Georgia during the Revolutionary war. Georgia never repaid Farquhar for the weapons he lent, and Chisholm sued the state for the money that he, as the executor of Farquhar’s estate, was then owed. The Attorney General at the time argued on behalf of the plaintiff, but Georgia refused to appear at the hearing. Georgia claimed that, as a sovereign state, it could not be sued without consenting to the lawsuit, and since it did not consent to the lawsuit it could not be sued. Although the state refused to appear, the Supreme Court nonetheless issued a decision in the case, citing Article III Section 2 of the Constitution. In a 4-1 decision (according to the Judiciary Act of 1789, the Supreme Court required at least one chief justice and four associate justices for a quorum), the Court ruled in favor of Chisholm. The Court argued that Article III Section 2 of the Constitution, which established the judicial powers of the Supreme Court, erased states’ sovereign immunity and made them subject to the power of the Supreme Court. The decision established the Supreme Court as an entity willing to decide on issues of the federal and state governments. Justice Iredell’s dissenting opinions and the concerned response of many states after the decision led to the passage of the 11th Amendment to the Constitution in 1795, which declares that state governments cannot be sued by a citizen of another state without the consent of the defendant state.

Chisholm v. Georgia


This great cause comes before the Court, on a motion made by the Attorney-General, that an order be made by this Court to the following effect: --  "That, unless the State of Georgia shall, after reasonable notice of this motion, cause an appearance to be entered on behalf of the said State, on the fourth day of next Term, or shew cause to the contrary, judgment shall be entered for the Plaintiff, and a write of enquiry shall be awarded." Before such an order be made, it is proper that this Court should be satisfied it hath cognizance of the suit; for, to be sure we ought not to enter a conditional judgment (which this would be) in a case where we were not fully persuaded we had authority to do so.

This is the first instance wherein the important question involved in this cause has come regularly before the Court. In the Maryland case it did not, because the Attorney-General of the State voluntarily appeared. We could not, therefore, without the greatest impropriety, have taken up the question suddenly. That case has since been compromised: But, had it proceeded to trial, and a verdict been given for the Plaintiff, it would have been our duty, previous to our giving judgment, to have well considered whether we were warranted in giving it. I had then great doubts upon my mind, and should in such a   case, have proposed a discussion of the subject. Those doubts have increased since, and, after the fullest consideration, I have been able to bestow on the subject and the most respectful attention to the able argument of the Attorney-General, I am now decidedly of opinion that no such action as this before the Court can legally be maintained.

The action is an action of assumpsit. The particular question then before the Court, is, will an action of assumpsit lie against a State? This particular question (abstracted from the general one, viz. Whether, a State can in any instance be sued?) I took the liberty to propose to the consideration of the Attorney-General, last Term. I did so, because I have often found a great deal of confusion to arise from taking too large a view at once, and I had found myself embarrassed on this very subject, until I considered the abstract question itself. The Attorney-General has spoken to it, in deference to my request, as he has been pleased to initimate, but he spoke to this particular question slightly, conceiving it to be involved in the general one; and after establishing, as he thought, that point, he seemed to consider the other followed of course. He expressed, indeed, some doubt how to prove what appeared so plain. It seemed to him (if I recollected right) to depend principally on the solution of this simple question; can a State assume? But the Attorney-General must know, that in England, certain judicial proceedings not inconsistent with the sovereignty, may take place against the Crown, but that an action of assumpsit will not lie. Yet surely the King can assume as well as a State. So can the United States themselves, as well as any State in the Union: Yet, the Attorney-General himself has taken some pains to shew, that no action whatever is maintainable against the United States. I shall, therefore, confine myself, as much as possible, to the particular question before the Court, though every thing I have to say upon it will effect every kind of suit, the object of which is to compel the payment of money by a State.


The question, as I before observed, is, -- will an action of assumpsit lie against a State? If it will, it must be in virtue of the Constitution of the United States, and of some law of Congress conformable thereto


The part of the Constitution concerning the Judicial Power, is as follows, viz: Art. 3. sect. 2.  The Judicial Power shall extend, (1.) To all cases, in law and equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority. (2.) To all cases affecting Ambassadors, or other public Ministers, and Consuls; (3.) To all cases of Admiralty and Maritime Jurisdiction; (4.) To controversies to which the United States shall be a party; (5.) To controversies between two or more states; between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and, between a State or the citizens thereof, and foreign States, citizens or subjects. The Constitution, therefore, provides for the jurisdiction wherein a State is a party, in the following instances: -- 1st. Controversies between two or more States. 2d. Controversies between a State and citizens of another State. 3d. Controversies between a State, and foreign States, citizens, or subjects. And it also provides, that in all cases in which a State shall be a party, the Supreme Court shall have original jurisdiction.

The Supreme Court hath, therefore, FIRST. Exclusive jurisdiction in every controversy of a civil nature: 1st. Between two or more States. 2d. Between a State and a foreign State. 3d. Where a suit or proceeding is depending against Ambassadors, other public ministers, or their domestics, or domestic servants.   SECOND. Original, but not exclusive jurisdiction, 1st. between a State and citizens of other States. 2d. Between a State and foreign citizens or subjects. 3d. Where a suit is brought by Ambassadors, or other public ministers. 4th, Where a consul or vice-consul, is a party. The suit now before the Court (if maintainable at all) comes within the latter description, it being a suit against a State by a citizen of another State.

The Constitution is particular in expressing the parties who may be the objects of the jurisdiction in any of these cases, but in respect to the subject-matter upon which such jurisdiction is to be exercised, uses the word "controversies" only. The act of Congress more particularly mentions civil controversies, a qualification of the general word in the Constitution, which I do not doubt every reasonable man will think well warranted, for   it cannot be presumed that the general word "controversies" was intended to include any proceedings that relate to criminal cases, which in all instances that respect the same Government, only, are uniformly considered of a local nature, and to be decided by its particular laws. The word "controversy" indeed, would not naturally justify any such construction, but nevertheless it was perhaps a proper instance of caution in Congress to guard against the possibility of it.

A general question of great importance here occurs. What controversy of a civil nature can be maintained against a State by an individual? The framers of the Constitution, I presume, must have meant one of two things: Either 1. In the conveyance of that part of the judicial power which did not relate to the execution of the other authorities of the general   Government (which it must be admitted are full and discretionary, within the restrictions of the Constitution itself), to refer to antecedent laws for the construction of the general words they use: Or, 2. To enable Congress in all such cases to pass all such laws, as they might deem necessary and proper to carry the purposes of this Constitution into full effect, either absolutely at their discretion, or at least in cases where prior laws were deficient for such purposes, if any such deficiency existed.

The Attorney-General has indeed suggested another construction, "that the moment a Supreme Court is formed, it is to exercise all the judicial power vested in it by the Constitution, by its own authority, whether the Legislature has prescribed methods of doing so, or not." My conception of the Constitution is entirely different. I conceive, that all the Courts of the United States must receive, not merely their organization as to the number of Judges of which they are to consist; but all their authority, as to the manner of their proceeding, from the Legislature only. This appears to me to be one of those cases, with many others, in which an article of the Constitution cannot be effectuated without the intervention of the Legislative authority. None will deny, that an act of Legislation is necessary to say, at least of what number the Judges are to consist; the President the consent of the Senate could not nominate a number at their discretion. The Constitution intended this article so far at least to be the subject of a Legislative act. Having a right thus to establish the Court, and it being capable of being established in no other manner, I conceive it necessarily follows, that they are also to direct the manner of its proceedings. Upon this authority, there is, that I know, but one limit; that is, "that they shall not exceed their authority." If they do, I have no hesitation to say, that any act to that effect would be utterly void, because it would be inconsistent with the Constitution, which is a fundamental law paramount to all others, which we are not only bound to consult, but sworn to observe; and, therefore, where there is an interference, being superior in obligation to the other, we must unquestionably obey that in preference. Subject to this restriction, the whole business of organizing the Courts, and directing the methods of their proceeding where necessary, I conceive to be in the discretion of Congress. If it shall be found on this occasion, or on any other, that the remedies now in being are defective, for any purpose it is their duty to provide for, they no doubt will provide others. It is their duty to legislate so far as is necessary to carry the Constitution into effect. It is ours only to judge. We have no reason, nor any more right to distrust their doing their duty, than they have to distrust that we all do ours. There is no part of the Constitution that I know of, that authorises this Court to take up any business where they left it, and, in order that the powers given in the Constitution may be in full activity, supply their omission by making new laws for new cases; or, which I take to be same thing, applying old principles to new cases materially different from those to which they were applied before.

With regard to the Attorney-General's doctrine of incidents, that was founded entirely on the supposition of the other I have been considering. The authority contended for is certainly not one of those necessarily incident to all Courts merely as such.

If therefore, this Court is to be (as I consider it) the organ of the Constitution and the law, not of  the Constitution only, in respect to the manner of its proceeding, we must receive our directions from the Legislature in this particular, and have no right to constitute ourselves an officina brevium, or take any other short method of doing what the Constitution has chosen (and, in my opinion, with the most perfect propriety) shall be done in another manner.

But the act of Congress has not been altogether silent upon this subject. The 14th sect. of the judicial act, provides in the following word: "All the before mentioned Courts of the United States, shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided for by statute, which may be necessary for the exercise of their respective   jurisdictions, and agreeable to the principles and usages of law." These words refer as well to the Supreme Court as to the other Courts of the United States. Whatever writs we issue, that are necessary for the exercise of our jurisdiction, must be agreeable to the principles and usages of law. This is a direction, I apprehend, we cannot supercede, because it may appear to us not sufficiently extensive. If it be not, we must wait till other remedies are provided by the same authority. From this it is plain that the Legislature did not chuse to leave to our own discretion the path to justice, but has prescribed one of its own. In doing so, it has, I think, wisely, referred us to principles and usages of law already well known, and by their precision calculated to guard against that innovating spirit of Courts of Justice, which the Attorney-General in another case reprobated with so much warmth, and with whose sentiments in that particular, I most cordially join. The principles of law to which reference is to be had, either upon the general ground I first alluded to, or upon the special words I have above cited, from the judicial act, I apprehend, can be, either, 1st. Those of the particular laws of the state, against which the suit is brought. Or, 2d. Principles of law common to all the States. If any such difference existed in the laws of the different States, there would seem to be a propriety, in order to induce uniformity, (if a Constitutional power for that purpose exists), that Congress should prescribe a rule, fitted to this new case, to which no equal, uniform, and impartial mode of proceeding could otherwise be applied.

But this point, I conceive, it is unnecessary to determine, because I believe there is no doubt that neither in the State now in question, nor in any other in the Union, any particular Legislative mode, authorising a compulsory suit for the recovery of money against a State, was in being either when the Constitution   was adopted, or at the time the judicial act was passed. Since that time an act of Assembly for such a purpose has been passed in Georgia. But that surely could have no influence in the construction of an act of the Legislature of the United States passed before.

The only principles of law, then, that can be regarded, are those common to all the States. I know of none such, which can effect this case, but those that are derived from what is properly termed "the common law," a law which I presume is the ground-work of the laws in every State in the Union, and which I consider, so far as it is applicable to the peculiar circumstances of the country, and where no special act of Legislation controls it, to be in force in each State, as it existed in England, (unaltered by any statute) at the time of the first settlement of the country. Every State in the Union in every instance where its sovereignty has not been delegated to the United States, I consider to be as completely sovereign, as the United States are in respect to the powers surrendered. The United States are sovereign as to all the powers of Government actually surrendered: Each State in the Union is sovereign as to all the powers reserved. It must necessarily be so, because the United States have no claim to any authority but such as the States have surrendered to them: Of course the part not surrendered must remain as it did before. The powers of the general Government, either of a Legislative or executive nature, or which particularly concerns Treaties with Foreign Powers, do for the most part (if not wholly) affect individuals, and not States: They require no aid from any State authority So far as States under the Constitution can be made legally liable to this authority, so far to be sure they are subordinate to the authority of the United States, and their individual sovereignty is in this respect limited. But it is limited no farther than the necessary execution of such authority requires. The authority extends only to the decision of controversies in which a State is a party, and providing laws necessary for that purpose.  That surely can refer only to such controversies in which a State can be a part; in respect to which, if any question arises, it can be determined, accordingly to the principles I have supported, in no other manner than by a reference either to pre-existent laws, or laws passed under the Constitution and in conformity to it.

It is observable that in instances like this before the Court, this Court hath a concurrent jurisdiction only; the present being one of those cases where by the judicial act this Court hath original but not exclusive jurisdiction. This Court, therefore, under that act, can exercise no authority in such instances, but such authority as from the subject matter of it may be exercised in some other Court. -- There are no Courts with which such a concurrence can be suggested but the Circuit Courts, or Courts of the different States. With the former it cannot be, for admitting that the Constitution is not to have a restrictive operation, so as to confine all cases in which a State is a party exclusively to the Supreme Court (an opinion to which I am strongly inclined), yet there are no words in the definition of the powers of the Circuit Court which gives a color to an opinion, that where a suit is brought against a State by a citizen of another State, the Circuit Court could exercise any jurisdiction at all. If they could, however, such a jurisdiction, by the very terms of their authority, could be only concurrent with the Courts of the several States. It follows, therefore, unquestionably, I think, that looking at the act of Congress, which I consider is on this occasion the limit of our authority (whatever further might be constitutionally, enacted) we can exercise no authority in the present instance   consistently  with the clear intention of the act, but such as a proper State Court would have been at least competent to exercise at the time the act was passed.

If therefore, no new remedy be provided (as plainly is the case), and consequently we have no other rule to govern us but the principles of the pre-existent laws, which must remain in force till superseded by others, then it is incumbent upon us to enquire, whether previous to the adoption of the Constitution (which period, or the period of passing the law, in respect to the object of this enquiry, is perfectly equal) an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law, which I have shewn to be alone applicable. If it could, I think it is now maintainable here: If it could not, I think, as the law stands at present, it is not maintainable; whatever opinion may be entertained, upon the construction of the Constitution, as to the power of Congress to authorise such a one.

Now let us consider the case of a debt due from a State. None can, I apprehend, be directly claimed but in the following instances. 1st. In case of a contract with the Legislature itself. 2d. In case of a contract with the Executive, or any other person, in consequence of an express authority from the Legislature. 3d. In case of a contract with the Executive without any special authority. In the first and second cases, the contract is evidently made on the public faith alone Every man must know that no suit can lie against a Legislative body. His only dependence therefore can be, that the Legislature on principles of public duty, will make a provision for the execution of their own contracts, and if that fails, whatever reproach the Legislature may incur, the case is certainly without remedy in any of the Courts of the State. It never was pretended, even in the case of the crown in England, that if any contract was made with Parliament, or with the crown by virtue of an authority from Parliament, that a Petition to the crown would in such case lie. In the third case, a contract with the Governor of a State without any special authority. This case is entirely different from such a contract made with the crown in England. The crown there has very high prerogatives, in many instances is a kind of trustee for the public interest, in all cases represents the Sue or be Sued in any manner on behalf of the Kingdom in any Court of Justice. A Governor of a State is a mere Executive officer; his general authority very narrowly limited by the Constitution of the State; with no undefined or disputable prerogatives; without power to effect one shilling of the public money, but as he is authorized under the Constitution, or by a particular law; having no color to represent the sovereignty of the State, so as to bind it in any manner to its prejudice, unless specially authorized thereto. And therefore all who contract with him do it at their own peril, and are bound to see (or take the consequence of their own indiscretion) that he has strict authority for any contract he makes. Of course such contract when so authorized will come within the description I mentioned of cases where public faith alone is the ground of relief, and the Legislative body the only one that can afford a remedy, which from the very nature of it must be the effect of its discretion, and not of any compulsory process. If however any such cases were similar to those which would entitle a party to relief by petition to the King in England, that Petition being only presentable to him as he is the sovereign of the Kingdom, so far as analogy is to take place, such Petition in a State could only be presented to the sovereign power, which surely the Governor is not. The only constituted authority to which such an application could with any propriety be made, must undoubtedly be the Legislature, whose express consent, upon the principle of analogy, would be necessary to any further proceeding. So that this brings us (though by a different route) to the same goal; The discretion and good faith of the Legislative body.

The differences between corporations, and the several States in the Union, as relative to the general Government, are very obvious in the following particulars. 1st. A corporation is a mere creature of the King, or of Parliament; very rarely of the latter; most usually of the former only. It owes its existence, its name, and its laws, (except such laws as are necessarily incident to all corporations merely as such) to the authority which create it. A State does not owe its origin to the Government of the United States, in the highest or in any of its branches. It was in existence before it. It derives its authority from the same pure and sacred source as itself: The voluntary and deliberate choice of the people. 2d. A corporation can do no act but what is subject to the revision either of a Court of Justice, or of some other authority within the Government. A State is altogether exempt from the jurisdiction of the Courts of the United States, or from any other exterior authority, unless in the special instances where the general Government has power derived from the Constitution itself.3d. A corporation is altogether dependent on that Government to which it owes its existence. Its charter may be forfeited by abuse. Its authority may be annihilated, without abuse, by an act of the Legislative body. A State, though subject in certain specified particulars to the authority of the Government of the United States, is in every other respect totally independent upon it. The people of the State created, the people of the State can only change, its Constitution. Upon this power there is no other limitation but that imposed by the Constitution of the United States; that it must be of the Republican form.

I have now, I think, established the following particulars. -- 1st. That the Constitution, so far as it respects the judicial authority, can only be carried into effect by acts of the Legislature appointing Courts, and prescribing their methods of proceeding. 2d. That Congress has provided no new law in regard to this case, but expressly referred us to the old. 3d. That there are no principles of the old law, to which we must have recourse, that in any manner authorise the present suit, either by precedent or by analogy. The consequence of which, in my opinion, clearly is, that the suit in question cannot be maintained, nor, of course, the motion made upon it be complied with.

I pray to God, that if the Attorney General's doctrine, as to the law, be established by the judgment of this Court, all the good he predicts from it may take place, and none of the evils with which, I have the concern to say, it appears to me to be pregnant.

BLAIR, Justice. In considering this important case, I have thought it best to pass over all the strictures which have been made on the various European confederations; because, as, on the one hand, their likeness to our own is not sufficiently close to justify any analogical application; so, on the other, they are utterly destitute of any binding authority here. The Constitution of the United States is the only fountain from which I shall draw; the only authority to which I shall appeal. Whatever be the true language of that, it is obligatory upon every member of the Union; for, no State could have become a member, but by an adoption of it by the people of that State. What then do we find there requiring the submission of individual States to the judicial authority of the United States? This is expressly extended, among other things, to controversies between a State and citizens of another State. Is then the case before us one of that description? Undoubtedly it is, unless it may be a sufficient denial to say, that it is a controversy between a citizen of one State and another State. Can this   change of order be an essential change in the thing intended? And is this alone a sufficient ground from which to conclude, that the jurisdiction of this Court reaches the case where a State is Plaintiff, but not where it is Defendant? In this latter case, should any man be asked, whether it was not a controversy between a State and citizen of another State, must not answer be in the affirmative? A dispute between A. and B. assurely a dispute between B. and A. Both cases, I have no doubt, were intended; and probably the State was first named, in respect to the dignity of a State. But that very dignity seems to have been thought a sufficient reason for confining the fence to the case where a State is plaintiff.   It is, however, a sufficient answer to say, that our Constitution most certainly contemplates, in another banch of the cases enumerated, the maintaining a jurisdiction against a State, as Defendant; this is unequivocally asserted when the judicial power of the United States is extended to controversies between two or more States; for there, a State must, of necessity, be a Defendant. It is extended also, to controversies between a State and foreign States; and if the argument taken from the order of designation were good, it would be meant here, that this Court might have cognizance of a suit, where a State is Plaintiff, and some foreign State a Defendant, but not where a foreign State brings a suit against a State. This, however, not to mention that the instances may rarely occur, when a State may have an opportunity of suing in the American Courts a foreign State, seems to lose sight of the policy which, no doubt, suggested this provision, viz. That no State in the Union should, by withholding justice, have it in its power to embroil the whole confederacy in disputes of another nature. But if a foreign State, though last named, may, nevertheless, be a Plaintiff against an individual State, how can it be said, that a controversy between a State and a citizen of another State means, from the mere force of the order of the words, only such cases where a State is Plaintiff? After describing, generally, the judicial powers of the United States, the Constitution goes on to speak of its distributively, and gives to the Supreme Court original jurisdiction, among other instances, in the case where a State shall be a party; but is not a State a party as well in the condition of a Defendant as in that of a Plaintiff? And is the whole force of that expression satisfied by confining its meaning to the case of a Plaintiff-State? It seems to me, that if this Court should refuse to hold jurisdiction of a case where a State is Defendant, it would renounce part of the authority conferred, and, consequently, part of the duty imposed on it by the Constitution; because it would be a refusal to take cognizance of a case where a State is a party. Nor does the jurisdiction of this Court, in relation to a State, seem to me to be questionable, on the ground that Congress has not provided any form of execution, or pointed out any mode of making the judgment against a State effectual;  the argument ab in utili may weigh much in cases depending upon the construction of doubtful Legislative acts, but can have no force, I think, against the clear and positive directions of an act of Congress and of the Constitution.

If the Plaintiff, grounding himself upon that notion, should renew his suit against the State, in any mode in which she may permit herself to be sued in her own Courts, would the Attorney General for the State be obliged to go again into the merits of the case, because the matter, when here, was coram non judice? Might he not rely upon the judgment given by this Court in bar of the new suit? To me it seems clear that he might. And if a State may be brought before this Court, as a Defendant, I see no reason for confining the Plaintiff to proceed by way of petition; indeed there would even seem to be an impropriety in proceeding in that mode. When sovereigns are sued in their own Courts, such a method may have been established as the most respectful form of demand; but we are not now in a State-Court; and if sovereignty be an exemption from suit in any other than the sovereign's own Courts, it follows that when a State, by adopting the Constitution, has agreed to be amenable to the judicial power of the United States, she has, in that respect, given up her right of sovereignty.

The order, I think, should be thus: "Ordered, that unless the State of Georgia should, after due notice of this order, by a service thereof upon the Governor and Attorney General of the said State, cause an appearance to be entered in behalf of the State, on the 5th day of the next Term, or then shew cause to the contrary, judgment be then entered up against the State, and a writ of enquiry of damages be awarded."

WILSON, Justice. The question to be determined is, whether this State is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and, may, perhaps, be ultimately resolved into one, no less radical than this -- "do the people of the United States form a NATION?"

I. I am, first, to examine this question by the principles of general jurisprudence.

To the Constitution of the United States the term SOVEREIGN, is totally unknown. There is but one place where it could have been used with propriety. But, even in that place it would not, perhaps, have comported with the delicacy of those, who ordained and established that Constitution. They might have announced themselves "SOVEREIGN" people of the United States: But serenely conscious of the fact, they avoided the ostentatious declaration.

A State; useful and valuable as the contrivance is, is the inferior contrivance of man; and from his native dignity derives all its acquired importance. When I speak of a State as an inferior contrivance, I mean that it is a contrivance inferior only to that, which is divine: Of all human contrivances, it is certainly most transcendently excellent. It is concerning this contrivance that Cicero says so sublimely, "Nothing, which is exhibited upon our globe, is more acceptable to that divinity, which governs the whole universe, than those communities and assemblages of men, which, lawfully associated, are denominated STATES."

Let a State be considered as subordinate to the PEOPLE: But let every thing else be subordinate to the State.

Is there any part of this description, which intimates, in the remotest manner, that a State, any more than the men who compose it, ought not to do justice and fulfil engagements? It will not be pretended that there is. If justice is not done; if engagements are not fulfilled; is it upon general principles of right, less proper, in the case of a great number, than in the case of an individual, to secure, by compulsion, that, which will not be voluntarily performed? Less proper it purely cannot be. The only reason, I believe, why a free man is bound by human laws, is, that he binds himself. Upon the same principles, upon which he becomes bound by the laws, he becomes amenable to the Courts of Justice, which are formed and authorized by those laws. If one free man, an original sovereign, may do all this; why may not an aggregate of free men, a collection of original sovereigns, do this likewise? If the dignity of each singly is undiminished; the dignity of all jointly must be unimpaired. A State, like a merchant, makes a contract. A dishonest State, like a dishonest merchant, willfully refuses to discharge it: The latter is amenable to a Court of Justice: Upon general principles of right, shall the former when summoned to answer the fair demands of its creditor, be permitted, proteus-like, to assume a new appearance, and to insult him and justice, by declaring I am a SOVEREIGN State? Surely not.

In another sense, according to some writers, every State, which governs itself without any dependence on another power, is a sovereign State. Whether, with regard to her own citizens, this is the case of the State of Georgia; whether those citizens have done, as the individuals of England are said, by their late instructors, to have done, surrendered the Supreme Power to the State or Government, and reserved nothing to themselves; or whether, like the people of other States, and of the United States, the citizens of Georgia have reserved the Supreme Power in their own hands; and on that Supreme Power have made the State dependent, instead of being sovereign; these are questions, to which, as a Judge in this cause, I can neither know nor suggest the proper answers.

There is a third sense, in which the term sovereign is frequently used, and which it is very material to trace and explain, as it furnishes a basis for what I presume to be one of the principal objections against the jurisdiction of this Court over the State of Georgia. In this sense, sovereignty is derived from a feudal source; and like many other parts of that system so degrading to man, still retains its influence over our sentiments and conduct, though the cause, by which that influence was produced, never extended to the American States.

When the laws and practice of particular States have any application to the question before us; that application will furnish what is called an argument a fortiori; because all the instances produced will be instances of subjects instituting and supporting suits against those, who were deemed their own Sovereigns. These instances are stronger than the present one; because between the present plaintiff and defendant no such unequal relation is alleged to exist.

We see nothing against, but much in favour of, the jurisdiction of this Court over the State of Georgia, a party of this cause.

III. I am, thirdly, and chiefly, to examine the important question now before us, by the Constitution of the United States, and the legitimate result of that valuable instrument. Under this view, the question is naturally subdivided into two others. 1. Could the Constitution of the United States vest a jurisdiction over the State of Georgia? 2. Has that Constitution vested such jurisdiction in this Court?

In the United States, and in the several States, which compose the Union, we go not so far as England: but still we go one step farther than we ought to go in this unnatural and inverted order of things. The States, rather than the PEOPLE, for whose sakes the States exist, are frequently the objects which attract and arrest our principal attention.

The question now opens fairly to our view, could the people of those States, among whom were those of Georgia, bind those States, and Georgia among the others, by the Legislative, Executive, and Judicial power so vested? If the principles, on which I have founded myself, are just and true; this question must unavoidably receive an affirmative answer. If those States were the work of those people; those people, and, that I may apply the case closely, the people of Georgia, in particular, could alter, as they pleaded, their former work: To any given degree, they could diminish as well as enlarge it. Any or all of the former State-powers, they could extinguish or transfer. The inference, which necessarily results, is, that the Constitution ordained and established by those people; and, still closely to apply the case, in particular by the people of Georgia, could vest jurisdiction or judicial power over those States and over the State of Georgia in particular.

The next question under this head, is, -- Has the Constitution done so? In order, ultimately, to discover, whether the people of the United States intended to bind those States by the Judicial power vested by the national Constitution, a previous enquiry will naturally be: Did those people intend to bind those states by the Legislative power vested by that Constitution? When certain laws of the States are declared to be "subject to the revision and control of the Congress;" it cannot, surely, be contended that the Legislative power of the national Government was meant to have no operation on the several States. The fact, uncontrovertibly established in one instance, proves the principle in all other instances, to which the facts will be found to apply. We may then infer, that the people of the United States intended to bind the several States, by the Legislative power of the national Government.

In order to make the discovery, at which we ultimately aim, a Second previous enquiry will naturally be -- Did the people of the United States intend to bind the several States by the Executive power of the national Government? The affirmative answer to the former question directs, unavoidably, an affirmative answer to this. Fair and conclusive deduction, then, evinces that the people of the United States did vest this Court with jurisdiction over the State of Georgia. The same truth may be deduced from the declared objects, and the general texture of the Constitution of the United States. One of its declared objects is, to form an union more perfect, than, before that time, had been formed. Before that time, the Union possessed Legislative, but unenforced Legislative power over the States. Nothing could be more natural than to intend that this Legislative power should be enforced by powers Executive and Judicial. Another declared object is, "to establish justice." This points, in a particular manner, to the Judicial authority. And when we view this object in conjunction with the declaration, "that no State shall pass a law impairing the obligation of contracts;" we shall probably think, that this object points, in a particular manner to the jurisdiction of the Court over the several States.

Whoever considers, in a combined and comprehensive view, the general texture of the Constitution, will be satisfied, that the people of the United States intended to form themselves into a nation for national purposes. They instituted, for Such purposes, a national Government, complete in all its parts, with powers Legislative, Executive and Judiciary; and, in all those powers, extending over the whole nation.

But, in my opinion, this doctrine rests not upon the legitimate result of fair and conclusive deduction from the Constitution: It is confirmed, beyond all doubt, by the direct and explicit declaration of the Constitution itself. "The judicial power of the United States shall extend, to controversies between two States.

JAY, Chief Justice. The question we are now to decide has been accurately stated, viz. Is a State suable by individual citizens of another State?

It is said, that Georgia refuses to appear and answer to the Plaintiff in this action, because she is a Sovereign State, and therefore not liable to such actions. In order to ascertain the merits of this objection, let us enquire, 1st. In what sense Georgia is a sovereign State. 2d. Whether suability is incompatable with such sovereignty. 3d. Whether the Constitution (to which Georgia is a party) authorises such an action against her.

1st. In determining the sense in which Georgia is a sovereign State, it may be useful to turn our attention to the political situation we were in, prior to the Revolution, and to the political rights which emerged from the Revolution.

Afterwards, in the hurry of the war, and in the warmth of mutual confidence, they made a confederation of the States, the basis of a general Government. Experience disappointed the expectations they had formed from it; and then the people, in their collective and national capacity, established the present Constitution. It is remarkable that in establishing it, the people exercised their own rights, and their own proper sovereignty, and conscious of the plenitude of it, they declared with becoming dignity, "We the people of the United States, do ordain and establish this "Constitution." Here we see the people acting as sovereigns of the whole country; and in the language of sovereignty, establishing a Constitution by which it was their will, that the State Governments should be bound, and to which the State Constitutions should be made to conform. Every State Constitution is a compact made by and between the citizens of a State to govern themselves in a certain manner; and the Constitution of the United States is likewise a compact made by the people of the United States to govern themselves as to general objects, in a certain manner. By this great compact however, many prerogatives were transferred to the national Government, such as those of making war and peace, contracting alliances, coining money, &c. &c.

If then it be true, that the sovereignty of the nation is in the people of the nation, and the residuary sovereignty of each State in the people of each State.

It will be sufficient to observe briefly, that the sovereignties in Europe, and particularly in England, exist on feudal principles. From the differences existing between feudal sovereignties and Governments founded on compacts, it necessarily follows that their respective prerogatives must differ. Sovereignty is the right to govern; a nation or State-sovereign is the person or persons in whom that resides. In Europe the sovereignty is generally ascribed to the Prince; here it rests with the people; there, the sovereign actually administers the Government; here, never in a single instance; our Governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns. Their Princes have personal powers, dignities, and pre-eminences, our rulers have none but official.

2d. The second object of enquiry now presents itself, viz. whether suability is compatible with State sovereignty.

If there be any such incompatibility as is pretended, whence does it arise? In what does it consist? There is at least one strong undeniable fact against this incompatibility, and that is this, any one State in the Union may sue another State, in this Court, that is, all the people of one State may sue all the people of another State. It is plain then, that a State may be sued, and hence it plainly follows, that suability and State sovereignty are not incompatible. As one State may sue another State in this Court, it is plain that no degradation to a State is thought to accompany her appearance in this Court.

The only remnant of objection therefore that remains is, that the State is not bound to appear and answer as a Defendant at the suit of an individual: but why it is unreasonable that she should be so bound, is hard to conjecture.

Let us now proceed to enquire whether Georgia has not, by being a party to the national compact, consented to be suable by individual citizens of another State.

Prior to the date of the Constitution, the people had not any national tribunal to which they could resort for justice; the distribution of justice was then confined to State judicatories, in whose institution and organization the people of the other States had no participation, and over whom they had not the least control. Prior also to that period, the United States had, by taking a place among the nations of the earth, become amenable to the laws of nations; and it was their interest as well as their duty to provide, that those laws should be respected and obeyed; in their national character and capacity, the United States were responsible to foreign nations for the conduct of each State, relative to the laws of nations, and the performance of treaties; and there the inexpediency of referring all such questions to State Courts, and particularly to the Courts of delinquent States became apparent.

These were among the evils against which it was proper for the nation, that is, the people of all the United States, to provide by a national judiciary, to be instituted by the whole nation, and to be responsible to the whole nation.

Let us now turn to the Constitution. The people therein declare, that their design in establishing it, comprehended Six objects. 1st. To form a more perfect union. 2d. To establish justice. 3d. To ensure domestic tranquility. 4th. To provide for the common defence.5th. To promote the general welfare. 6th. To secure the blessings of liberty to themselves and their posterity.

It may be asked, what is the precise sense and latitude in which the words "to establish justice," as here used, are to be understood? The answer to this question will result from the provisions made in the Constitution on this head. They are specified in the 2d. section of the 3d article, To controversies between a State, or the citizens thereof; and foreign States, citizens or subjects; because, as every nation is responsible for the conduct of its citizens towards other nations; all questions touching the justice due to foreign nations, or people, ought to be ascertained by, and depend on national authority. Even this cursory view of the judicial powers of the United States, leaves the mind strongly impressed with the importance of them to the preservation of the tranquility, the equal sovereignty, and the equal right of the people.

The question now before us renders it necessary to pay particular attention to that part of the 2d section, which extends the judicial power "to controversies between a State and citizens of another State." It is contended, that this ought to be construed to reach none of these controversies, excepting those in which a State may be Plaintiff. The ordinary rules for construction will easily decide whether those words are to be understood in that limited sense.

This extension of power is remedial, because it is to settle controversies. It is therefore, to be construed liberally. It cannot be pretended that where citizens urge and insist upon demands against a State, which the State refuses to admit and comply with, that there is no controversy between them. If it is a controversy between them, then it clearly falls not only within the spirit, but the very words of the Constitution. What is it to the cause of justice, and how can it effect the definition of the word controversy, whether the demands which cause the dispute, are made by a State against citizens of another State, or by the latter against the former? When power is thus extended to a controversy, it necessarily, as to all judicial purposes, is also extended to those, between whom it subsists.

I perceive, and therefore candor urges me to mention, a circumstance, which seems to favor the opposite side of the question. It is this: the same section of the Constitution which extends the judicial power to controversies "between a State and the citizens of another State," does also extend that power to controversies to which the United States are a party. Now, it may be said, if the word party comprehends both Plaintiff and Defendant, it follows, that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to me to be fair reasoning; but the same principles of candour which urge me to mention this objection, also urge me to suggest an important difference between the two cases. It is this: in all cases of actions against States or individual citizens, the National Courts are supported in all their legal and Constitutional proceedings and judgments, by the arm of the Executive power of the United States; but in cases of actions against the United States, there is no power which the Courts can call to their aid. From this distinction important conclusions are deducible, and they place the case of a State, and the case of the United States, in very different points of view.

For my own part, I am convinced that the sense in which I understand and have explained the words "controversies between States and citizens of another State," is the true sense. The extension of the judiciary power of the United States to such controversies, appears to me to be wise, because it is honest, and because it is useful. It is honest, because it provides for doing justice without respect or persons, and by securing individual citizens as well as States, in their respective rights, performs the promise which every free Government makes to every free citizen, of equal justice and protection. It is useful, because it is honest, because it leaves not even the most obscure and friendless citizen without means of obtaining justice from a neighboring State; because it obviates occasions of quarrels between States on account of the claims of their respective citizens; because it recognizes and strongly rests on this great moral truth, that justice is the same whether due from one man or a million, or from a million to one man; because it teaches and greatly appreciates the value of our free republican national Government, which places all our citizens on an equal footing, and enables each and every of them to obtain justice without any danger of being overborne by the weight and number of their opponents; and, because it brings into action, and enforces this great and glorious principle, that the people are the sovereign of this country, and consequently that fellow citizens and joint sovereigns cannot be degraded by appearing with each other in their own Courts to have their controversies determined. The people have reason to prize and rejoice in such valuable privileges; and they ought not to forget, that nothing but the free course of Constitutional law and Government can ensure the continuance and enjoyment of them.

For the reasons before given, I am clearly of opinion, that a State is suable by citizens of another State; but lest I should be understood in a latitude beyond my meaning, I think it necessary to subjoin this caution, viz, That such suability may nevertheless not extend to all the demands, and to every kind of action; there may be exceptions. For instance, I am far from being prepared to say that an individual may sue a State on bills of credit issued before the Constitution was established, and which were issued and received on the faith of the State, and at a time when no ideas or expectations of judicial interposition were entertained or contemplated.


The following order was made: -- BY THE COURT. It is ordered, that the Plaintiff in this cause do file his declaration on or before the first day of March next.

Ordered, that certified copies of the said declaration be served on the Governor and Attorney General of the State of Georgia, on or before the first day of June next.

Ordered, that unless the said State shall either in due form appear, or shew cause to the contrary to this Court by the first day of next Term, judgment by default shall be entered against the said State. 


Key Takeaway

Article III, Section 2's grant of federal jurisdiction over suits "between a State and Citizens of another State" abrogated the States' sovereign immunity and granted federal courts the affirmative power to hear disputes between private citizens and States.

This was superseded in 1795 by the Eleventh Amendment.

How the Justices Voted

Seriatim opinion: Cushing

Seriatim opinion: Blair

Seriatim opinion: Wilson

Seriatim opinion: Jay

Dissent: Iredell