Chisholm v. Georgia. 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. I omit any consideration arising from the word "usages," though a still stronger expression. In regard to the principles of the particular laws of the state of Georgia, if they in any manner differed, so as to affect this question, from the principles of law, common to all the states, it might be material to inquire, whether, there would be any propriety or congruity in laying down a rule of decision which would induce this consequence, that an action would lie in the supreme court against some states, whose laws admitted of a compulsory remedy against their own governments, but not against others, wherein no such remedy was admitted, or which would require, perhaps, if the principle was received, fifteen different methods of proceeding against states, all standing in the same political relation to the general government, and none having any pretence to a distinction in its favor, or justly liable to any distinction to its prejudice. 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, authorizing 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. [*435 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 affect 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. The statutes of England that are in force in America differ perhaps in all the states; and therefore, it is probable, the common law in each is in some respects different. But it is certain, that in regard to any common-law principle which can influence the question before us, no alteration has been made by any statute, which could occasion the least material difference, or have any partial effect. No other part of the common law of England, it appears to me, can have any reference to this subject, but that part of it which prescribes remedies against the crown. 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 Chisholm v. Georgia. 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. This is the great leading distinction between the old articles of confederation, and the present constitution. The judicial power is of a peculiar kind. It is indeed commensurate with the ordinary legislative and executive powers of the general government, and the power which concerns treaties. But it also goes further. Where certain parties are concerned, although the subject in controversy does not relate to any of the special objects of authority of the general government, wherein the separate sovereignties of the states are blended in one common mass of supremacy, yet the general government has a judicial authority in regard to such *subjects of controversy, and the legislature of the *436] United States may pass all laws necessary to give such judicial authority its proper effect. 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 further 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 party; in respect to which, if any question arises, it can be determined, according 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. Whatever be the true construction of the constitution in this particular; whether it is to be construed as intending merely a transfer of jurisdiction from one tribunal to another, or as authorizing the legislature to provide laws for the decision of all possible controversies in which a state may be involved with an individual, without regard to any prior exemption; yet it is certain, that the legislature has in fact proceeded upon the former supposition, and not upon the latter. For, besides what I noticed before, as to an express reference to principles and usages of law, as the guide of our proceeding, 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 give 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 look Chisholm v. Georgia. ing 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 [*437 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 until superseded by others, then it is incumbent upon us to inquire, whether, previous to the adoption of the constitution (which period, or the period of passing the law, in respect to the object of this inquiry, 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 shown 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 authorize such a one. Now, I presume, it will not be denied, that in every state in the Union, previous to the adoption of the constitution, the only common-law principles in regard to suits that were in any manner admissible in respect to claims against the state, were those which, in England, apply to claims against the crown; there being certainly no other principles of the common law which, previous to the adoption of this constitution, could, in any manner, or upon any color, apply to the case of a claim against a state, in its own courts, where it was solely and completely sovereign, in respect to such cases, at least. Whether that remedy was strictly applicable or not, still, I apprehend, there was no other. The only remedy, in a case like that before the court, by which, by any possibility, a suit can be maintaineda gainst the crown, in England, or, at any period from which the common law, as in force in America, could be derived, I believe, is that which is called a Petition of right. It is stated, indeed, in Com. Dig. 105, that "until the time of Edward I., the King might have been sued in all actions, as a common person." And some authorities are cited for that position, though it is even there stated as a doubt. But the same authority adds-" but now, none can have an action against the King, but one shall be put to sue to him by petition." This appears to be a quotation or abstract from Theloall's Digest, which is also one of the authorities quoted in the former case. And this book appears (from the law catalogue) to have been printed so long ago as the year 1579. The same doctrine appears (according to a quotation in Blackstone's Commentaries, 1 vol. 243) to be stated in Finch's Law 253, the first edition of which, it seems, was published in 1579. This also more fully appears in the case of The Bankers, and particularly from the celebrated argument of *SOMERS, in the time [*438 of Wm. III., for, though that case was ultimately decided against Lord SOMERS's opinion, yet, the ground on which the decision was given, no way invalidates the reasoning of that argument, so far as it respects the simple case of a sum of money demandable from the King, and not by him secured on any particular revenues. The case is reported in Freeman, vol. 1, p. 331; 5 Mod. 29; Skin. 601; and lately very elaborately in a small pamphlet published by Mr. Harrgave, which contains all the reports at Chisholm v. Georgia. length, except Skinner's, together with the argument at large of Lord Somers; besides some additional matter. The substance of the case was as follows: King Charles II. having received large sums of money from bankers, on the credit of the growing produce of the revenue, for the payment of which, tallies and orders of the exchequer were given (afterwards made transferable by statute), and the payment of these having been afterwards postponed, the King at length, in order to relieve the bankers, in 1677, granted annuities to them out of the hereditary excise, equal to six per cent. interest on their several debts, but redeemable on payment of the principal. This interest was paid until 1683, but it then became in arrear, and continued so at the revolution; and the suits which were commenced to enforce the payment of these arrears, were the subject of this case. The bankers presented a petition to the barons of the exchequer, for the payment of the arrears of the annuities granted; to which petition the attorney-general demurred. Two points were made: First, whether the grant out of the excise was good; second, whether a petition to the barons of the exchequer was a proper remedy. On the first point, the whole court agreed, that, in general, the King could alienate the revenues of the crown; but Mr. Baron Lechmere differed from the other barons, by thinking that this particular revenue of the excise, was an exception to the general rule. But all agreed, that the petition was a proper remedy. Judgment was, therefore, given for the petition, by directing payment to the complainants, at the receipt of the exchequer. A writ of error was brought on this judgment, by the attorney-general, in the exchequerchamber. There, all the judges who argued held the grant out of the excise good. A majority of them, including Lord Chief Justice Holt, also approved of the remedy by petition to the barons. But Lord Chief Justice Treby was of opinion, that the barons of the exchequer were not authorized to make order for payments on the receipt of the exchequer, and therefore, that the remedy by petition to the barons was inapplicable. In this opinion, Lord Somers concurred. A doubt then arose, whether the Lord Chancellor and Lord High Treasurer were at liberty to give judgment, according to their *439] own *opinion, in opposition to that of a majority of the attendant judges; in other words, whether the judges called by the Lord Chancellor and Lord High Treasurer were to be considered as mere assistants to them, without voices. The opinion of the judges being taken on this point, seven against three, held, that the Lord Chancellor and Lord Treasurer were not concluded by the opinions of the judges, and therefore, that the Lord Keeper, in the case in question, there being then no Lord Treasurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reversed the judgment of the court of exchequer. But the case was afterwards carried by error into parliament, and there the Lords reversed the judgment of the exchequer-chamber, and affirmed that of the exchequer. However, notwithstanding this final decision in favor of the bankers and their creditors, it appears by a subsequent statute, that they were to receive only one-half of their debts; the 12 & 14 Wm. III., after appropriating certain sums out of the hereditary excise for public uses, providing that in lieu of the annuities granted to the bankers and all arrears, the hereditary excise should, after the 26th of December 1601, be charged Chisholm v. Georgia. with annual sums equal to an interest of three per cent., until redeemed by payment of one moiety of the principal sums. Hargrave's Case of the Bankers, 1, 2, 3. Upon perusing the whole of this case, these inferences naturally follow : 1st. That admitting the authority of that decision, in its fullest extent, yet, it is an authority only in respect to such cases, where letters-patent from the crown have been granted for the payment of certain sums out of a particular revenue. 2d. That such relief was grantable in the exchequer, upon no other principle than that that court had a right to direct the issues of the exchequer as well after the money was deposited there, as while (in the exchequer language) it was in transitu. 3d. That such an authority could not have been exercised by any other court in Westminster Hall, nor by any court, that, from its particular constitution, had no control over the revenues of the kingdom. Lord C. J. Holt, and Lord Somers (though they differed in the main point) both agreed in that case, that the court of King's bench could not send a writ to the treasury. Hargrave's case, 45, 89. Consequently, no such remedy could, under any circumstances, I apprehend, be allowed in any of the American states, in none of which it is presumed any court of justice hath any express authority over the revenues of the state such as has been attributed to the court of exchequer in England. The observations of Lord Somers, concerning the general remedy by petition to the King, have been extracted and referred to by some of the ablest law characters since; particularly, by *Lord C. Baron Comyns, in his digest. I shall, therefore, extract some of them, as he appears [*440 to have taken uncommon pains to collect all the material learning on the subject; and indeed is said to have expended several hundred pounds in the procuring of records relative to that case. Hargrave's Preface to the Case of the Bankers. After citing many authorities, Lord Somers proceeds thus: "By all these authorities, and by many others, which I could cite, both ancient and modern, it is plain, that if the subject was to recover a rent or annuity, or other charge from the crown; whether it was a rent or annuity, originally granted by the King, or issuing out of lands, which by subsequent title came to be in the King's hands; in all cases, the remedy to come at it was, by petition to the person of the King; and no other method can be shown to have been practised at common law. Indeed, I take it to be generally true, that in all cases where the subject is in the nature of a plaintiff, to recover anything from the King, his only remedy, at common law, is to sue by petition to the person of the King. I say, where the subject comes as a plaintiff. For, as I said before, when, upon a title found for the King by office, the subject comes in to traverse the King's title, or to show his own right, he comes in the nature of a defendant; and is admitted to interplead in the case, with the King, in defence of his title, which otherwise would be defeated by finding the office. And to show that this was so, I would take notice of several instances. That, in cases of debts owing by the crown, the subject's remedy was by petition, appears by Aynesham's Case, Ryley, 251, which is a petition for 197. due for work done at Carnarvon castle. So, Ryley 251, the executors of John Estrateling petition for 1327. due to the testator, for |