Chisholm, Executor, v. Georgia. 2 D. 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 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 [ *437 ] 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we have no other rule to govern us but the principles of the preexistent laws, which must remain in force till superseded by others, then it is incumbent upon us to inquire whether, previous to the adoption of the Constitution, (which period, or the period of passing the law, in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 Chisholm, Executor, v. Georgia. 2 D. before the Court, by which, by any possibility, a suit can be maintained against the crown in England, or could be 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 1 Com. Dig. 218, 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 mer case. "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 forAnd 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 the first volume of Blackstone's Commentaries, 243, to be stated in Finch's Law, 255, 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 [*438] argument of * Lord Somers, in the time of William 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; Skinn. 601, and lately, very elaborately, in a small pamphlet published by Mr. Hargrave, which contains all the reports at 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 till 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: 1st, whether the grant out of the Excise Chisholm, Executor, v. Georgia. 2 D. was good; 2d, 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 Exchequer Chamber. 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 own *opinion, in opposition [*439 ] 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 and 14 W. 3, 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 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 Chisholm, Executor, v. Georgia. 2 D. 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, or 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 [* 440 ] * Lord C. Baron Comyns, in his Digest. I shall therefore extract some of them, as he appears 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 any thing 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 Chisholm, Executor, v. Georgia. 2 D. 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 19/. due for work done at Carnarvon Castle. So Ryley, 251, the executors of John Estrateling petition for 1327. due to the testator for wages. The answer is remarkable; for there is a latitude taken which will very well agree with the notion that is taken up in this case: Habeant bre. de liberate in Canc. thes. et camerar. de 321. in partem solutionis. So the case of Yerward de Galeys, for 561. Ryley, 414. In like manner, in the same book, 253, 33 Edward I., several parties sue by petition for money and goods taken for the king's use; and also for wages due to them, and for debts owing to them by the king. The answer is, Rex ordinavit per concilium thesaurarii et baronum de scaccario, quod satisfiet iis quam citius fieri poterit; ita quod contentos se tenebunt. And this is an answer given to a petition presented to the king in parliament, and therefore we have reason to conclude it to be warranted by law. They must be content, and they shall be paid, quam citius fieri poterit. The parties, in these cases, first go to the king by petition; it is by him they are sent to the exchequer; and it is by writ, under the great seal, that the exchequer is empowered to act. Nor can *any [* 441 ] such writ be found, unless in a very few instances, where it is mere matter of account, in which the treasurer is not joined with the barons. So far was it from being taken to be law at that time, that the barons had any original power of paying the king's debts; or of commanding annuities, granted by the king or his progenitors, to be paid, when the person applied to them for such payment. But perhaps it may be objected that it is not to be inferred, because petitions were brought in these cases, that therefore it was of necessity that the subject should pursue that course, and could take no other way. It might be reasonable to require from those who object thus, that they should produce some precedents at least, of another remedy taken. But I think there is a good answer to be given to this objection. All these petitions, which I have mentioned, are after the Stat. 8 Edward I., Ryley, 442, where notice is taken that the business of parliament is interrupted by a multitude of petitions, which might be redressed by the chancellor and justices. Wherefore it is thereby enacted, that petitions which touch the seal shall come first to the chancellor; those which touch the exchequer to the exchequer; and those which touch the justices, or the law of the land, should come to the justices; and if the business be so great, or si de grace, that the chancellor, or others, cannot do them without the king, then the petitions shall be brought before the king, to know his pleasure; so that no petitions come before the king and his council, but by the |