The dangers of the union.

• Author: Pfander, James E.
• Position: Part 2 - Includes reprints of articles by Henry Wheaton in The American, Aug. 2-16, 1821

In our last issue, we published the first four of Wheaton's essays defending the Supreme Court's decision in Cohens v. Virginia.(1) The remaining four essays follow. Professor Pfander has retained the somewhat anachronistic spellings and modest misquotations in Wheaton's original essays. He has, however, corrected typographic errors and has also altered punctuation where the original was unduly confusing. Wheaton's footnotes appear as they did in the original, with asterisks; Professor Pfander's explanatory footnotes have been numbered.

NO. 5.

(The American, Aug. 2, 1821)

In my last number, I endeavoured to explain the grounds upon which the Supreme Court had asserted and proved that the judicial power of the United States, as originally given by the constitution, and before the amendment respecting the suability of the States, extended to such a case as that of Cohens against the State of Virginia. After establishing this position, the court consider the question whether their jurisdiction in the case is appellate or original.(2) In examining this question, the section of the constitution, which enumerates the powers of the judicial branch of the government, and afterwards classes those powers, is analyzed with great precision and accuracy; and the demonstration is complete, that in the case under consideration, the jurisdiction is appellate.(3) I cannot add to the reasoning on this point, and will not repeat it. I have the less inducement for remarking on it, because I am not sure that even Algernon Sidney censures this part of the judgment.

CONSTITUTIONAL COMMENTARY

Thus far the reasoning of the court is limited and confined to the constitution in its original form; and I confess, I know not how the conviction can be resisted, that, both by its letter and its spirit, the judicial authority of the Union was extended to every case arising under the constitution, or laws, or treaties of the United States, whoever may be the parties. The rule, in its terms, comprehends all cases. The constitution makes no exception, and furnishes no principle which will authorize us to make one. It is, however, insisted, and so it was argued before the Supreme Court, by the counsel for the State of Virginia, that this jurisdiction, if it ever existed, was taken away by the 11th article of the amendments to the constitution. That article is in these words: "The judicial power of the United States shall not be 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." The court were of the opinion that this amendment did not comprehend the case before them for two reasons: 1st. Because this was not, in the sense of the amendment, a suit commenced or prosecuted against one of the United States.(4) And, 2dly, Because Cohens, the plaintiff in error, was not a citizen of another state, nor a citizen or subject of a foreign state.(5)

First, then: Was this writ of error a suit, in the sense in which that term is used in the amendment?

In the examination of this question, the court give the definition of "a suit," as laid down by the most approved jurists,(6) and of a writ of error.(7) They define it to be the pursuit or demand of something in a court of justice, in which the person who brings the suit is the actor, prosecuting a claim or demand which he makes upon another. But Cohens made no claim or demand whatever, on the state of Virginia. His proceeding was entirely defensive. In the Supreme Court of the Union, as well as in the State Court, he resisted the claim or demand of Virginia upon him, and consequently retained, to all substantial purposes, the character of a defendant, in which he was originally brought before her tribunal. It will not be denied that this proceeding, if a suit, was a personal action; and BLACKSTONE says that "Personal actions are such wherein a man claims a debt, or personal duty, or damages in lieu thereof; and likewise whereby a man claims satisfaction in damages for some injury done to his person or property." What debt, or damages, or duty, did Cohens claim from Virginia?

Having seen what is a suit, let us now see what is a writ of error. It is authoritatively defined to be "a commission by which the judges of one Court are authorized to examine a record upon which a judgment was given in another Court, and, on such examination, to affirm or reverse the same according to law."(8) Lord Coke in his 2 Inst. says "writs are more extensive than actions;" and in distinguishing between them, he classes writs of error with writs of oyer and terminer, and others in the nature of commissions. It is essentially an appeal from the judgment of one tribunal to that of another; and if an appeal be not the commencement or prosecution of a suit, in the view of the constitution, neither is a writ of error. The term "appeal" is borrowed from the civil law, and is defined by the civilians to be the removal of a cause from the sentence of an inferior to a superior judge: "ab inferioris judicis sententia ad superiorem provocare."(*) A writ of error and an appeal are merely different modes of effecting the same object. They are means, similar in their operation and consequences, of executing the authority vested by the constitution in Congress, to apply the judicial power of the Union to "all cases arising under the constitution and laws of the United States." Between different means of this description, it cannot be material which the national legislature adopts. The writ of error, like the appeal, only brings the record before the court; and if the citation be disregarded, the non-appearance of the party is not considered as a default or contumacy. Judgment cannot be rendered as on a default; but the record is to be inspected, and the judgment reversed or affirmed, as the constitution or law of the United States may, or may not, have been violated.

In illustration of the idea that the writ of error given by the judiciary act, when brought by the original defendant, has never been considered as the commencement or prosecution of a suit, the uniform, and I will add, the necessary, practice of the Supreme Court, in sustaining such writs of error where a suit would not be sustained, is referred to.9 And certainly it must be confessed that this uniform practice is strong evidence of the law, of the opinion of all legal men, and of the views and intentions of the legislature in directing the writ of error.(10)

The manifest departure of the amendment from the language of the section it amends, furnishes an additional circumstance of no inconsiderable force to show that its framers intended to restrain a party from asserting any demand against a state, in the federal courts; not to prevent an application to those courts for the revision of a judgment supposed to violate the constitution or laws of the Union. The section in the constitution uses the words "cases" and "controversies;" never the word "suits." -- It declares that "the judicial power shall extend to all cases in law and equity arising under this constitution," &c. "to controversies to which the United States shall be a party," &c. The terms applied to the first class comprehended every possible case of the character described; and those applied to the second, may, in the discretion of the national legislature, be applied to all or to some controversies only as shall seem expedient. "Cases" and "controversies" describe the subject matter to be acted on, without reference to the manner in which that subject may be brought before the court. It is immaterial in the first case, who is the party; and in the last, which is plaintiff and which is defendant. Quacumque via data-- "the case," or "the controversy" is cognizable in the federal court.

If the amendment had been intended to be coextensive with the section amended, it is reasonable to suppose that the same terms would have been used. Looking at the section, while preparing the amendment, the person who drew it would naturally employ the same terms. -- Had he, with this view to co-extensiveness, intended to abridge the jurisdiction granted in the first clause, he would most probably have said, "The judicial power of the United States shall not be construed to extend to any case between a state and an individual." Had he intended to abridge that part of the jurisdiction which depends on the parties to the same extent in which it was given between a state and individuals, he would most probably have said, "The judicial power shall not be construed to extend to any controversy between a state and the citizens of another state, or citizens or subjects of a foreign state." But this language, which would so readily have presented itself had this been the intention and object of the amendment, and which would so unequivocally express the idea now contended for, is entirely dropped, and a new and very different phraseology is employed. Instead of referring to the "case" or the "controversy" in the language of the section, a new term is introduced, and the amendment is confined to "a suit commenced or prosecuted against a state," by a particular description of persons; words precisely adapted to describe an action on a demand against a state: the very words which would be used for that purpose. -- This change of phraseology is not unimportant; and it is against every principle of interpretation to ascribe it to accident. The subject had excited great attention, and was too interesting, too single; the words must have been too well considered, for any material change of language to be attributed to chance. It could not but have been intentional. To what motive then other than a deliberate design to exclude those cases, and those only, from the jurisdiction of the court, in which a claim was made against a state, can we attribute the abandonment of the general language of the...