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important, a much more interesting object was the preservation of the Constitution and laws of the United States, so far as they can be preserved by judicial authority; and therefore the jurisdiction of the courts of the Union was expressly extended to all cases arising under that Constitution and those laws. If the Constitution or laws may be violated by proceedings instituted by a State against its own citizens, and if that violation be such as essentially to affect the Constitution and laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which extends the judicial power of the Union to all cases arising under the Constitution and laws?

“After bestowing on this subject the most attentive consideration, the court can perceive no reason, founded on the character of the parties, for introducing the exception which the Constitution has not made; and we think the judicial power, as originally given, extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties.'

Speaking of the eleventh amendment, which is in these words, "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign state, he says,

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"It is a part of our history, that, at the adoption of the Constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts formed a very serious objection to that

'Marshall on the Constitution, p. 233.

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instrument. Suits were instituted, and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehension that was so extensively entertained, this amendment was proposed in congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign state: the jurisdiction of the court still extends to these cases, and in these a State may still be sued. We must ascribe the amendment to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one that might be commenced before the adoption of the amendment, were persons who might probably be creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States.

"The first impression made on the mind by this amendment is, that it was intended for those cases, and those only, in which some demand against a State is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no interest

could be felt in so changing the relations between the whole and its parts as to strip the government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violence.

"The words of the amendment appear to the court to justify and require this construction. The judicial power is not to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State,'" &c.'

He then goes on and explains what a suit is, that it is "some claim, demand, or request," and gives Judge Blackstone's definition of the "remedy for every species of wrong," which is "the being put in possession of that right whereof the party injured is deprived;" and "the instrument whereby the remedy is obtained is a diversity of suits and actions."

"Suits had been commenced in the Supreme Court against some of the States before this amendment was introduced into congress; and others might be commenced before it should be adopted by the State legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those that might be commenced when. this article should form a part of this Constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be prosecuted against a State by the citizens of another State. If a suit, brought into one court, and carried by a legal process to a supervising

1 Marshall on the Constitution, p. 244.

court, be a continuation of the same suit, then this suit is not commenced or prosecuted against a State. It is clearly, in its commencement, a suit of a State against an INDIVIDUAL; which suit is transferred to this court, not for the purpose of asserting any claim against a State, but for the purpose of asserting a constitutional defence against a claim made by a State."1

Now if any one of the States, or even the United States, should make a law taking away the rights of any individual, especially his inalienable rights, for no crime, the State, or the United States, by so doing, claiming a right of control which is not justifiable by our Constitution, this claim, if we understand this language, would be annulled by the courts, if a case should be brought, either by appeal from the lower courts, or by a suit brought immediately before the Supreme Court.

From the language here held by Mr. Marshall, we should suspect it was on this amendment of the Constitution Mr. Webster based his opinion, asked him by Messrs. Baring & Brothers, respecting the power of sueing one of the States of the Union for any claim for money loaned a State. His opinion was, they had no power to sue a State for money loaned. For it will be perceived, by this amendment, and the reasons Mr. Marshall gives why it was adopted, that there is now no court in the country which has the power to entertain such a suit.

After stating many objects for which the people

1 Marshall on the Constitution, P. 246.

of the United States are to be considered one

people, he says, —

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"The people have declared that, in the exercise of all powers given for these objects, the government' is supreme. It can, then, in effecting these objects, legitimately control all individuals or governments within the American territory. The Constitution or laws of a State, so far as they are repugnant to the Constitution and laws of the United States, are absolutely void. These States are constituent parts of the United States; they are members of one great empire; for some purposes sovereign, for some purposes subordinate.”1

He concludes his opinion on this case in these words:

"After having bestowed on this question the most deliberate consideration of which we are capable, the court is unanimously of opinion that the objections to its jurisdiction are not sustained, and that the motion ought to be overruled." 2

The case from which the foregoing quotations are taken was one where judgment had been given against the firm of P. J. & M. J. Cohens, for selling lottery tickets, and an appeal to the higher courts of Virginia was refused. The court expressed no opinion on the merits of the case, as it touched no constitutional point, and we know not their opinion was asked; but they reversed the opinion of the lower court, and also affirmed their own jurisdiction in the case; that is, if we understand it, they had the right to take cognizance of the rights of the individual if they were infringed

'Marshall on the Constitution, p. 250.

2 Idem, p. 261.

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