Chisholm v. Georgia

This great caufe comes before, the Court, orfcli motion made by the Attorney-General, that an order be made by this Court to the following effe.dl:—« That, unlefs the State of Georgia fhali, after reafonkble notice of this mo- “ tion, caufe an appearance to be entered on behalf, of the <( faid State, on the fourth day of next Term, orfhew caufe to “ the contrary, judgment fhali be .entered for the Plaintiff, and ■ “ a. writ .of enquiry fhali he awarded.” Before fuch an order be made, it is'proper that this Court fhould be fatisfied it hath cognizance of the fuit 3 for, to be fure we ought not to enter a conditional judgment (which this would be) in a cafe where we were not fully perfuaded we had authority to do' fo.

This is the firfl inflance wherein the important queilion involved in this caufe has com'e regularly before the Court. • In the Mdryland cafe it' did not, becaufe the Attorney-General of. the State voluntarily appeared. We could nor, therefore, without the gieatefl impropriety, have taken up the queition fuddenly. That cafe has lince been compromiied-: But, had it proceeded to trial, and a' verdidl been given for the Plaintiff, it would baVe been our duty, previous to our. giving judgment, to have well *430 eonfidercd whether we were- warranted in giving it. I had titea great doubts upon my mind, and Ihould in fuch a cafe, have-' propofed ■ a difcuffion of the fubjedt. Thofe doubts have in< creafed fince, and, after the fulleft confederation, ‘I have beén. able to bellow on the fubjedt, and the moil refpedtful attention to the able argument of the Attorney-General, I- am now decidedly of opinion that no'fuch adtionas this before the. Court: can legally be maintained.

The action is au'adtionof ajfumpfit. The-particular q.ueftion. then before the Court, is, will an action of affampftt lie againft a State 2 This particular queltion íabílráfted from the general one, viz. Whether, a State can in any inílance be fued ?). I took the liberty .to. propofe to the conlideration of the Attorney-General, lalt Term. I did fo, becaufe I have often found a great deal of eonfufion to arii'e from taking too large a view at once, and I had found myfelf -embarrafled on, this very fubjedt,; until I confidered the abítradt queílion itfelf. The- Attorney-General has fpoken to it, in Jefeence to my requeft, as he has been pleafed to intimate, but. he fpoke to this pa ticula-r queltion llightly, conceiving it to. be involved in the general one ; and after eitablilhing, as lie thought, that point, he feemed to confider the other followed of courts. He exprefledi indeed, fome doubt how to prove what appeared. £b.plain.- If feemed to him (if I recoiled! right) to depend principally on the- folution of this fimple queftion; can a State -aflume ? But the Attorney-General. mull kiio.w, that in England, certain judicial proceedings not inconfiftent with the fovereignty, may cake place againft the Crown, but that an, adtionof ajfumpfit;, will not lie. Yet ftfrely the King can aflume-as well: as a State. So. can fche United itates, them felves, as. well as any State in, the Union : .Yet, the Attorney-General himfelf has taken.fome pains, to ihew, that no action- whatever is. maintainable againft the United- States,. 1 fihall, therefore, confine myfelf, as much as. poffible, to the -particular queltion before the Court, though every thing I have to fay upon it will effcdt every kind of fult, the ohjedt of which, is to compel the payment of money by a.State,.

Tbe-queftioii, as-1 before obfezved, is,—will anadtion oí af fumpftt lie ag.ainft a State i If it will, it mult b.e in virtue of the Conftitutjon of. the United States, and of -fome law of Com-, grcfs conformable thereto. The part of-the Confut'dtion concerning the-Judicial Rower, is as follows, viz : Art. 3. Jedt. 2. The judicial Power {hall extend, (. t.) To.all cafes, in, law and equity,, arifing under the Gonftitution, the law.s of .the United' States, and treaties made, or which Stall be made, under their authority.-' (2.) To .all cafes aftedting Ambafladors, or other-public Miniíters,, and- Confuís; (3.) To all'cafes of Admiralty i>id Maritime Jurifdidticii; (.4.) To centro verfies to which, thei *431 United States íhall be a' party; (¡.j To coiitroverfies between two or more States ; between a State and citizens of another State 5 between, citizens- of different States; between citizens of the . fame State,, claiming lands under grants. of . different States; and, between a State or the citizens thereof, and foreign States, citizens or fubje&s. The Conftitution,.therefore, provides for the jurifdidfion wherein a State is a party, in file following inftances if. Controverfies between two or more States. - id. Controverfies between a State and citizens of another State, id. Controverfies between a State, and foreign States, citizens, or fubjedls. And it alfo provides, that in all cafes in which a State lhall be-¾ party, the Supreme Court íhall have original jurifdi£Hon,

The words of-the general judicial a<ft, conveying the author. rity of the Supreme Court, under the Conftitution, fo far a3 they, concern this queftion, areas follow:—Sect. 13. « That the Supreme Court íhall have exclufive jurifdkftion of all con-iroverfies of a civil nature, where a State is a party, except between a State and its citizens; and except alfo, between a State and citizens of other States, or aliens, in which latter cafe it íhall have original, but not exclufive' jurifdi&ion- And ihali have, exclufively, all jurifdiftion of fuits or proceedings againft Ambafladors, or other public Minifters, or their domeftics, or domeftic fervants, as a court of law’ can have or exercife confif-tently with the law of nations ; and original, but not exclufive 'jurifdhSion 'of. all fuits brought by Ambafladors, or other pub-.lie Minifters, .or in which a Conful, or Vice-Conful, íhall be a party.”

- The Supreme Court hath, therefore, first. Exclufive. j urifdiction in every controverfy of a civil nature : if. Between two or more-States, id. Between a State and a foreign State. 3d. Where a.fuit or proceeding is depending againft Ambafladors, other public minifters, or their domeftics, or domeftic fervants. ■SECOND- Original, but not exclufive jurifdi&ion, 1fl. between a-State and citizens of other States, id. Between a State and foreign citizens or iubje&s.. *$d. Where a fuit is brought byAmbaf-fadors, or other public minifters.. 4th, Where a confuí, or vice-conful, is a party The fuit now before the Court (if maintain able at all) comes'within the latter defeription, it being a fuit againft a State by a citizen of another State.

The Conftitution is particular in exprelling the parties who may bé the obje.&s Of the jurifdiftion in any of thefe cafes, but in refpeét-to the fuhjeft-matter upon which fuch j-u-rifdi£Hoa is-tb be exercifed,' ufes..the- word “ controverfies” only. The a£t of Ccngrefs more particularly mentions civil contrQverfies, a qualification of the general word-in the Conftitútiorf, w*hichT daatot- double very,reafanablfc'tnan will think, well warrantc'd, for *432 it cannot be prefumed that the general word “-.controv'eriies** was intended to include any proceedings that relate to criminal cafes, which in all inltances that refpe& the fame Government» only, are uniformly coniidered of a local nature, and to be der cided by its particular laws. The Word “ controverfy” indeed^ would not naturally juftify any fuch conftrudlion, but n ever the-lefs it was perhaps a proper inftance of caution in Congrefs to guard againft’ the poliibiiity of it.

A general queftion of great importance- here occurs. 'What controverfy of a civil nature can be maintained againft a State by an individual i The framers of the Conftitution, I prefume, muft have meant one of two things : Either r. 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 muft be admitted are full and.difcretionatyj within' the reftri£tions of the Conftitution itfelf), to refer to antecedent laws for the conftrufldon of the general words they ufe : Or, 2. To enable Congrefs in all fuch cafes to pafs all fuch laws, as they might deem necellary and proper to carry the pur-pofes of this Conftitution into full effe£l, either aSfolutely at their diferetion, or at leaft in cafes .where- prior laws were deficient for fuch purpofes, if any fuch deficiency exifted.

The Attorney-General has indeed fuggefted another cort-ftruction, a conftrucliors, I confefs, that I never heard of before, nor can I now confider it grounded on any folid foundation, though it appeared to me to be the bafts of the Attorne.y-GenefalTs argument. His conftruÉHon I take to be this :-*• “ That the moment a Supreme Courtis formed, it is to exer-cife all the. judicial'power veiled in it by the Conftitution, by its own authority, whether the Legiflature haG preferibed me» thods of doing fo, or not.” My conception of the Conftitution is entirely different. I conceive, that all the Courts ’ of the , LT- ttHed States muft receive,-not merely their organization as to the number of Judges of which they are to conftft ; but all their authority, as to the manner of their proceeding, from the Legifla-ture only. Ihis appears to me to be one of thofe cafes, with many others, in which an article of the Conftitution cannot be effeñuated'without the intervention of the Legiflative authority. There being many fuch, at the end of the fpeciat enumeration of the powers of Congrefs in-the Conftitution, is this general-one : “-To make- all laws which íhallbe neceffary and proper for carrying into execution the foregoing Powers, and all other powers veiled by this Conftitution in the Government of the United States, or in any department or officer thereof.” None will deny, that an a£f of Legiflation is neceffayto fay, at leaft of what number the Judges are to conftft; the Prefdent with the eonfent of the Senate could not nominate á number at their *433 rtifcretión. The Conftitution intended this article fo far at lead to be the fubjedt of a .Legislative adt. Having a right thus tb eftabliih the Court, and it being,capable of being eftábliíhed in no other manner, I conceive it neceffarily follows, -that they are alfo to direct the manner of its. proceedings. Upon this authority, there is, that I know, but one limit; that is, ct that they ihall not exceed their authority.” If theydo, I have no hefitation to fay, that any adt to that effect' Would be utterly void, becaufe it would be inconfiftent with the Constitution, which is a fundamental law paramount to all others, which we are not only bound to. confult, but fworn to obferve.; and, therefore, where there is an interference, being fuperior in obligation to the other, -we muft unqueftionably - obey that in preference. Subjedt to this reftridtion, the whole bufinefs of organizing the .Courts, and diredting, the me thods of their proceeding where neceflary, I conceive to be in the diferetion of Congrefs. If it ihall be found oil this occafion, dr oh any other, that the remedies now in being are defedtive,- for any purpcfe it is their duty to provide for, they.no doubt will provide others. It is their duty to legifate fo far as is neceflary to. carry the Con-ftitution into effedt. It is ottrs only to judge. We have no reason, nor any more right' todiftruft their doing their duty, than they have to diftruft that we all do ours. There is nc part of the Conftitution that I know of,' that authorifes this Court tb take up any bufinefs where they left it, and, in order that the-powers given in the Conflitiitioii may bé. in. full adtivity, fupply their omiflion by making new laws for new 'cafes ; or, which I take to be fame thing, applying old principles to new cafes materially different from thofe to which they were applied before;

With regard to the Attorney-General’s dodtrine of incidents, that was founded' entirely on the fuppofition of the other I have been considering. The authority contended for ⅛ certainly not one of thofe neceffarily incident-to all Courts merely as Such.

If therefore, this Court is tó be (as I consider it), the o.rgati Of the Co>f tint ion and the law, not of the Golifitutim only, ,in refpedt td the manner of its proceeding, we muft ■ receive our diredtions from the Legislature in this particular, ahd have'no right to conftitute ourfelves ah ojfcina brevhm, or take any other fliort method of doing- what the - Conftitution has chofeh (and, in my opinion, with the moft perfedt propriety) Should bé done • ih another mahtter.

But the adt of Congrefs has not been altogether filent upon thisfubjedt; The i¿,th feet, of the judicial, adt, provides in the following Words : “ All the before mentioned Courts oi the United States, ihall have power to iffue writs of fire facias, ha-beas corpus, and all other writs not-Specially' provided for by Statute, which may be neceftary for the exercife of their refpectiye *434 jurifditUonSj and agreeable to the principles and-ufages of law*. Thefe words refer as well to the Supreme Court as to the o ther Courts of the United States. Whatever writs we iffue, that are neceflary for the exercife of our jurifditSion, muft be agreeable to the principles and ufages of law. • This is a direction, I apprehend, we cannot fupercede, becaufe it may appear to us not fufficiently extenfive. If it be not, we muft wait till other remedies are provided b.y the fame • authority. From this it is plain that the Legiilature did not chufe to leave- to our own difcretion the path to juftice, but hasprefcribed one of its own. In doing fo, it has, Í think, wifely, referred us to principles and ufages oFlaw-already well known, and by their pre-cifion calculated to guard againft. that innovating fpirit of Courts of Juftice, which the Attorney-General hi another cafe repro-bated with fo much warmth, and, with whofe fen.timents in that particular, I moft cordially join. The principles of law to 'which reference is to be had, either upon the general ground I firft alluded to, or upon the ipecial words I have above cited, from the judicial aft, I apprehend, can be, either, ift. Thofe ' of the particular law.s of the State, againft which the fuit ⅛ brought. Or, 2d. Principles of law common to all the States. I omit any confideration arifing-from the word<c ufages,” tho’ a ftill ftroiiger expreffion. In regard to the principles of the particular laws of th* State of Georgia, if they in any manned differed, fo as to effeft this queftion, from the principles of law, commonto all the States, it might be' máterial to enqiiire, whether, there would be any propriety or congruity in laying down a rule of decifion which would induce-this confequence, that an action would lie in the Supreme Court againft Tome States, whofe laws admitted of a compulfory remedy againft their own Governments, -but- hot againft others, wherein' ho fuch remedy Was admitted, or which would require, perhaps, if the principle was received, fifteen different methods o'f proceeding againft States, all {landing in the'fame political relation to the general Government, and none having any .pretence to a diftin&on in its favor, or juftly liable to any diítináion to its prejudice., if any fuch difference exifted in the laws of tke different States, there would Teem to be á propriety, in order* to induce uniformity, (if a Conftitutionál power for-that pur-- - pofe exifts), that Congrefs íhould preferibe a rule, fitted to this new cafe, to which no equal, uniform, and impartial mode of proceeding could otherwjíe be appliad.

But this point, I conceive, it is, utmecefiary to determine, becaufe Í believe there is no doubt that neither in the State now. in queftion, nor in any other in the. Union, any .particular Le-giflative mode, authorifing a'compulforyTuit for the recovery of money againft a State, was in being either when the Conftitu- *435 €on was adopted, or at the time-the judicial adl was pafíed. Since that time an ail of Affembly for fuch a purpofe has. been pafíed in Georgia. But that furely could have no influence in the-eonitruition of an a£l of the Legiflat-ure of the United States palled before.

■ The only principles of law, then, that can be regarded, are thofe common to all the States-. I know of none fuch, ■ which can afieit this cafe, hut thofe -that are derived from what ⅛ properly termed <£ the 'common law,” a Jaw which -I prefume is the ground-work of the laws in every State in the Union, and which I confider, fo far as it is applicable to the peculiar cir-cumftances of the country, and where no fpecial a£t of Legifla-fcion cóntrouls it, to be. in force- in' each State, as it exifledin-England, (unaltered by any Jlatute) at the time of the firjl fettlement of the country. The ftatutes of England that are in force ⅛ America differ perhaps in all the States ; and, therefore, it is probable the common law in each, is in lome refpects different. But it is certain that in-regard to any commpn law principle which «an influence the queftion before us no. alteration has been made by any flatute, which could occafion the leaft material difference* or-have any partial effect'. No other part of the common law of England, it appears to me, oun' have any reference to this fubjedt, but that part of it which prefcribes remedies; again# the crown;. Every State- in the Union in every inftance where its fovereignty has not been,delegated to the United States, Icorifider to be as coinpleatly foveraign, as the United States are' in re-fpedt to th'e powers furrendered. The' United Stalks are fove-reign as tó aH the powers.of Governmenbadlually furrendered-: Each State ⅛- the Union is fovereign as to all.the powers referv-eck.. It muff neceffarily.be. fb, becaufe th¿ ‘United 'Statos have no claim to any authority but- fuch as the States have furrendered to themOf courfe the part not furrenderred mull , remain as.it did before. The powers, of the general Government, either of a Legiflative- .or Executive nature, or- which particularly concerns Treaties with Foreign Powers, do for ■ the moil part (if not-wholly) affecb individuals, and not States-: They require no aid from any State, authority.. This is the gireat leading diiiindlion .between the old articles, of confederation, and the prefentconftitution, The Judicial power is of a peculiar kind.' It is indeed- commenfurate with the ordinary- Legiflative and Executive powers of the general-government,' and the Power which concerns treaties.. But it alfo goes further. Where certain parties are concerned, although the fubjedb ⅛-epntroverfy - does not relate‘to any of ■ the fpecial objedts'of authority of the general Government,, wherein the feparate- foyeveigstie» of the States are blended-in one eommon-mafs of fupre.macy, yet the general Government has a J adicial Authority-⅛-regará to fuel» *436 fubje£ls of controverfy, and the Legiilature of the United States may pafs all laws neceiTary to give fuch Judicial Authority its proper effect. So-far as States under the Conilitution , can be made legally liable to this authority, To far to be fure they are fubordinate to the authority o.f the United States, and their individual fovcveignty is in this refpedi limited. But it is limited no farther than the neceiTary execution of fuch authority requires. The authority ejttei is only-to the decifion of contro-veriies in which a State is a party, and providing Taws neceflary for that purpofe: That furely can refer only to fuch controver-fics in which a State can be a part.; ; in refpeCt to which, if any queition arifes, it can be determined, according to the principles I have fupported, in 110 other manner than by a reference either to pre-exiitent laws, or laws.paffed under the Conilitution and in conformity to it.

Whatever be the true conilrutSlion of the Conilitution in this particular ; whether it is to be' conftrued as intending merely a transfer of jurifdidtion from one tribunal to another; or as authorifing the Legiilature to pro.vide laws for the decifion of all poffible controverfies in which a State may be.involved with an individual, without regard to any prior exemption; yet it is certain that the Legiilature has in fn£l proceeded upon the former fuppoiition, and not upon the latter. Tor, befide.s what l no-, ticed before as to an exprefs reference to principles and ufages. of law as the guide of our proceeding, it is obfervable that iu initances like this before the Court, this Court hath a concur-r rent jurifdiclion only ; the prefent being one of thofe cafes where by-the judicial ⅜£1 this Court hath original but not exclttfive ju-. rifdidlioni This Coyrt, therefore, under that a£t, can cxercife no authority in fuch initance§, but fuch authority' as from the fubj.ect matter of it .may be exercifed in fome other Court. There are no Courts with which fuch a concurrence can be fug-gefled but the Circuit Courts,. or Courts of tiie different States. Wjth the former it cannot be, for admitting that the Conilitution is'not to have a reftrifitive operation, fo as to confine all cafes in which a State is a party exelufively to the Supreme Court (an opinion to which I am ftrongly inclined), yee there are no. words in the definition of the powers of the Circuit Court which give ⅞ colour to an opinion, that where a fuit is brought againft a State by a citizen of another - State,.the Circuit Court could exercife any j.urifdiclion at all, If they could, however, fuch a jurifdiclion, by the very terms of their authority, could be only concurrent' with the Courts of the feveral States. It follows, ■ therefore, unqueflionably, I'think, that looking at the del óf Congrefs, which I confider is on this occafion the limit t>f our authority (whatever further might be conftitutionaly, ⅜⅛⅞⅜⅛) yve ⅜⅞⅜ exercife- no authority in the prefent inftanc e *437 eonfiftently with the .clear intention of»1 the aft, but fuch as a proper State Court would have been at leaft- comepetent to es> ercife at the time the aft waspafied.

If -therefore, no new remedy be provided (as -plainly is the ' cafe), and confequently we have no other rule to govern us but the principles of rhe pre-exiftent laws, which muft remain in-force till fuperceded by others, then it is • incumbent upon us to enquire, whether previous to the ■ adoption of the Conftitution (which period-, or the period of palling the. law, in refpeft totheobjeft of this enquiry, is perfeftly equal) an-aftion o£ the nature like this before the Court could have been maintained againft one of the States in the Union upon the principles of the common law, which I have ihewn to bé alone applicable. If ft could, 'I think it is now maintainable here : If it could not, I think, as the law ftandskit prefent, it is not maintainable 5 whatever opinion may be-entertained,- upon the conftruftlon of the Conftitution,-as to the power of Congrefs to authorifé fuch a one. Now I préfume it will not be denied, that in every State in ■ the Union, previous to the adoption of the Conftitution, the only common law principles in regard to fuits that were in any. manner admiflible in refpeft to claims againft the State, were; thofe which, in England apply to claims againft the crown; there being certainly no' other principles - of the common law which, previous to the adoption of this Conftitution. could, in any manner, or upon any colour, apply to the cafe of a claim agaiiift á.State in its own Courts, where it wa6 folely and completely fo-vereign in-refpeft to fuch cafes at leaft.. Whether that remedy was ftriftly applicable or not, ftill I apprehend there was no othe.r. The only remedy in a cafe like that before the Court, by "which, by any poffiblity, .a fuit can be maintained againft' 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 ⅛ that which is called a Petition of right, It is ftated, indeed, in Com. Dig.' 105. That “ until the' time.of Edward I.the King might have been, fued in-all aftions as a common perfon.” And fome authorities are cited for that pofirion, though it is even there ftated as>a doubt. But the fame authority1 adds-r^« hut now none can have an aftion again ft the King, but one ihall be put to fue to him by petition.” This appears to-be a quotation or .abftraft from Tkeloali’s Digeft, which is alfo one of the authorities quoted in the former cafe. And this book appears (from the law catalogue) to have been printed fo long ago as the year 15.79. The fame doftrine appears (according to a quotation in Blaclf one’s Commentaries, t VoL 243) to be. ftated ⅛ pinch’s Law 253, the firft edition of winch, it feems, was publiihed in 1579. -This alfo more fully appears in the cafe of the Bankers} and particularly from the celebrated argument of *438 Somers, in the time’of W. III. for, though that cale was ⅛ timately"decided againft Lord Somers's opinion, yet the ground; on which the decifion was given no way invalidates the rea-foning- of that argument, fo far as it- refpefts the fimple cafe of a fum of money demandable from the King, and not by him-fecured on any particular revenues. The cafe is reported in- Freeman, Vol. I. p., 331. 5 Mod. 29-. Ski mi. 601. and lately very elaborately in a fmall pamphlet publiihed by Mr. Har-grave, which contains all the reports at length, except Skinner’s, together with the argument at large of Lord Somers bebdes-fame additional matter.

The fubftance of' the cafe was as follows -.—King Charier II. having received large furas 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,(after-, wards made transferable by ftatute) and the payment of thefe having been afterward poftporied, the King at length, in order to relieve the Bankers, in 1677, granted annuities to them out-of the hereditary Excife, equal .to 6 per cent intereft on their fe-veral debts, but redeemable on payment of the principal. This intereft was paid ’till. .1683, but it then became in arrear’, and' continued fo at the Revolution; and the- fuits which were com-, menced to enforce the payment of thefe arrears, were the fub-je£k of this cafe. The Bankers prefented a petition to the'Ba-^ rons ©f the Exchequer,. for the payment-, of the arrears of the-annuities granted ⅜ to which petition- the Attorney General demurred. Two points were made: F-irft, whether the gfSnt out ©f the Excife- was good'; fecorid, whether a petition to the Barons of the Exchequer was a proper remedy. On'the firft point-the whole Court agreed-, that in general the King could-alienate-the revenues ef the crown ; but Mr. Baron Lechmere. differed from the other Barons, by thinking that this particular, revenue-of the- Excife, was an exception to the general - rule.. Brit 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 Cíen eral in the Exchequer-Chamber. There all-,the judges who argued held the grant ‘out of the Excife good. A majority of them, including Lord Chief Juftiee Holt, alfo approved of the remedy by petition to the Barons. But, Lord Chief Juft-ice Treby was of opinion, ¡that the Barons qi the -' Exchequer, were not au&orifed to make order- for payments on- the receipt of the Exchequer,, and, therefore, that the remedy by petition to the Barons was inapplicable. In rhis bpinion Lord Somers concurred. A doubt-then arofe, whether the Lord Chancellor and -Lprd High Trea-» forer were, at liberty to gi$e judgment -according- to their ew» *439 opinion, in oppofitión to that of a majority of the attendant Judges ; in other words, whether the Judges called .by the Lord Chancellor and Lord High Treafu'rer were to be confidered as mere aiiiftants to them without voices. The opinion of thejudges being taken on this point, feven again ft three held, that the Lord Chancellor and Lord Tireafurer were not concluded by the opinions of the Judges, and therefore that the Lord Keeper in the cafe in queftion, there being then no Lord Treafurer, might give judgment according to his own opinion. Lord Somers concurring in this idea, reverfed the judgment of the Court of Exchequer. But the cafe was afterwards carried by error into Parliament, and there the Lords reverfed the judgment of the' Exchequer-Chamber,' and affirmed that of the Exchequer. However, notwithftanding this final decifion in favour of the Bankers.and their creditors, it appears by,a,fubfequent ftatute, that they were to receive only one,half of their debts ; the 1,¾ and 14 W. 3, after appropriating certain fums out of the hereditary Excife for public ufes, providing, that in lieu of the annuities granted to die Bankers and all arrears, the hereditary Excife ihould, after, the 26th of December 1601, be charged with annual fums equal to ail inte.reft of three per cent, till redeemed by payment of one moiety of the principal fums. Har-grave s cafe of the Bankers, 1, 2, 3.

Upon perufing the whole of this cafe, thefe inferences naturally follow :— 1ft. That admitting the authority of that de-cifion in its fulleft extent* yet it is an authority only in refp'ecf to fuch cafes, where letters patent from the crown have been granted for the payment of certain fums out of a particular revenue. 2d. That fuch relief was grantable in the 'Exchequer, •upon no othér principle than that that Court hud a right to-direct the iifues of the Exchequer as well after the money was depofited there as while (in the- Exchequer language) it was in iranfitu. 3d. That fuch an authority could not have beenexer-. ifed by any other Court in WeJlminJler-'Hall, or. by any Court that from its particular conftitution had nó conrroul pter the revenues of the Kingdom, Lord C. J. Holt, arid . Lord Somers ;(though they differed in the main point) both agreed in that cafe, that the Court of King’s bench could not Tend a .writ to the Treafury. Hargrave’s -cafe, 45, 89, Coufequently, no fuch remedy, could, finder .ány’circumftances, I apprehgyd, be aflowed in any of- the American States; in' none of which it.is preflimed any Court of Juftice hath any exprefs, authority over thc revenues of the State fuch as has been attributed to the Court of Exchequer in England.

The obfervations of Lord Somers, concerning the general rc- ' medy by petition to'the King, -have been extracted and deferred to by fome of the ableft law characters. fine?; particularly by *440 Lord C. Baron Comyns in his digeft. I ihall, therefore, 6⅝» fome of them, as he appears to have taken uncommon pains to collect all. the material learning on the fubject 5 and indeed is faid to have expended feveral hundred. pounds in the procuring of records relative . to th .t cafe. Hargrave’s preface to the 'cafe of the Bankers.

After citing many authorities, Lord .Somers proceeds thus te By all thefe authorities, and,' by many others, which I could 'cite', both ancient and modern, it is plain, that if the fubjedi tvas 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 iffuing out of. lands, which by fubfequent title came to be in the King’s hands '1, in all cafes the remedy to come at it was by -petition to the p.erfon of the King : and no other method can be ihewn to have been pra&ifed at common law. Indeed I take it to be generally true, that in all cafes where the fubjecl is in the nature of a Plaintiff, to recover any thing from the King, his 'only remedy, át common law, is' to fue by Petition to the' perfon of the King*. I fay, where the fubjedt comes as a Plaintiff. For, as I faid before, when, upon a title .found for the King by office, the fubjedt comes in to'-traverfe the King’s title; or to ihew hrs own right, he comes in the na-1 ture of a Defendant ⅝ and is admitted to interplead in the cafe •with the King in defence of his title, which otherwife would be defeated by finding the office. And to fhewdhat this was fo, I would take notice of feveral inftane'es. That, in cafes of debts owjng by-the crown, the. fubjedt’s remedy1 was by Petition, appears by Aynejhanis cafe; Ryley,. 251. which, is a petition for ¿19. due for work done at Carnarvon caftle. So Ryley 251. The executors of John Efirateling petition for £ 132. due to the . teftator fop wages. ' The arifwer is remarkable ; for there fe a' latitude taken, which will very well agree with the notion that fe taken up in this cafe; Habeant bre. de liberate in Cane. thef. itf earnerar. definí. in partem folutionis. So the --cafe of Ter--tvürd'de G-aUys-y for fifi- Ryley 4x4. -In like manner in the fame book 253., 33. ^ Ed. I. feveral parties fue by petition for ' money and goods taker fpr the King’s ufe; and alfo for wages due to- them ; and for aebts owing to them by the King. The anfwer is, Rex erd'mavit per concilium thefaurarii iff baronum de feas cario, quod fatisfiet iis quam citius fieri poterit ¡, ita quod cónter.» tos fétenebunt. And this is an anfwer - given to a petition - pre-fen ted to .the King in Parliament;' and therefore we havereafon to- conclude it to be warranted by law. ■ They muft be content, apd they ihall be paid,'quam\ citius-fieri potefit. 1 The’ parties, ■⅛ thefe; cafes, firlt go to the King'■ by petition-: it is by him ⅛eyj- áre fent to the ' Exchequer ⅛. and it'is by writ under the: great feql, that, the Exchequer is knpotVered to adt. Nor cart *441 *ny fuch writ he found (unlefs in a very few inftaticés, where it is mere matter of account) in which' the Treafurc.r is not joined with the Barons. ‘So fat was ft from heitlg taken to be law at that time, that the Bároits had any original power of paying the Kitig’s debts ¾ Or Of commanding annuities, granted by the King.or his progenitors, to he paid, When the per^ fon applied to them for'ftich payment. But perhaps it may be -objected, that i’t is not to be inferred, becaufe petitions were brought- in thefe cafes, that therefore it was of necefiity that the fubjerit ihoukl purftte that c'ourfe, and could take no. other way. It might be reafortable to. require from thofe who obj-edfc thus, that they fhould produce feme precedente at leaft, of another remedy taken. ' But I think there is a good ánfwer to he given to this obje&ion. All thefe petitions which I havé mentioned, aVe after the St at. 8 Ed. I. Ryley 442, where no*-tice is taken that the hfinefs of Parliament is interrupted by a multitude of petitions, ‘which might be redr fid by the 'Chancellor and fu/lices. Wherefore it fe thereby-enaftedj thit petitions which touch the fealfhall copie firf to the Chancellor ; 'thofe which touch the-Exchequer, to the Exchequer ; and thofe which tfiucb the Juf- tices, or the iiku of,the land, fhould ‘come t0^4he fuflices ; and if the bujinifs.be fo great, or ft dé grace that Chancellor, or others,Cannot do them without the King, then the- ‘¡‘«fti ion's Jhall be brought before the King to- know his pletifure > fo that m petitions come before the King and his Council, but by the hand's if the Chancellor, and -other chief Minifers ⅜ that the King and Ms Council may attend: the great affairs of the King’s Reálm, and his favereigñ dominions.” This laW being made; there is reafon to conclude that all petitions brought before the King, or Parliament after this time, arid añfwered there, were brought according to .thfe method of this law and Were of the nature of fuch petitions-ás ■ought to be brought before the perfoti of the King. And'that-petitions did ,lie for a' chattel, as well as for a freehold; does appear 37 Rffi pl ii. Bro.' Pet-. 17* If tenant by the ftatuté merchant be oufted, he may have petition, aed íhall be reftqi-ech Vide 9 H. 4. ¿p Bró. Pet. p. 91 H. 6. at* Bro.,- Pet-. 2. .If the fubjeriftbe oufted of his term, - he íhall have hi* petition. 7. H.r¡. ii. Of a chattel real a pa»’íhall have hfci peti* tion of right, as of his freehold* 34. H. ¡i. Bro. Pet. A man íhall have a petition of right for. goods and chattels ; and the King indorfes it in the uftial form. It is faid indeed; s H. 7. 3. Bro. Pet. 19. that a petition will not lie of-4 ehaitel. Arid, admitting there eyas any- doubt as to' that point, i a the prefent ftiit we are in the cafe of a freehold.” Lord Somerds argument in Hargrave’s cafe of the Bankers, 103 to 105.

The folitary cafe, noticed at the concluí]on of Lord Somers’s arguments “ that a petitiQn will not lie of a-'chattel,” certainly ' ' *442 is deferving of no confederation, oppofed to fo many, other in* fiances mentioned,. and unrecognized (as Í believe it is) by any óther authority either anc'ierit or modern, whereas the contrary, it appears to me, has long been received and eflnbliíhed law¿ In Comyns’s Dig* 4 Vol. 458. It is faid exprefsly « fuit-ihall be to the King by petition, for goods' as well as for land? He cites Staundf. Prar. 75. b. 72. b. for his autiority, ánd takes no notice of any authority to the contrary. The fame dodtrine is alfo laid down with' equal ex'plicitnefs, and without noticing any diftindtion whatever, in Blacone’s Commentaries, 3. Vol* 256-. where he points out the petition of „ghf as one of the common law methods of obtaining poffeffion or reftitution froto the crown, either of real or perfonal property; and fays exprefsly the petition of right “ is of ufe where the King is in full poffeffion of any hereditaments or ¿hattels, and the petitioner fuggefts fuch a right as controverts the title of, the crown, grounded on fails difclofed in the petition i'tfelf.”

I leave out of the argument, from which I have made fo long a quotation, every thingconcerning the reftridtion on the Exchequer, fo far as it concerned the cafe then before the Court, as Lord Somers (although more perhaps by weight of authority than reafoning) was over-ruled in tha,t particular. As fo all others' I confider the authorities on which he relied, and his de-■dudlion from them, to be unimpeached.

Blachflone, in the firft volume , of his commentaries (p. 203), fpeaking of demands in point of property, upon the King, ftates the general' remedy thus :—If any pérfon has,'in point .of property, a'juft demand upon the King, he muff petition him in his'Court of Chancery, where his Chancellor will adminif-ter right, asa matter of grace, though not-upon^compulfion. (For which he cites Finch L. 255.). “ And this is exadtly con-donan t to what is laid down by the writers on. natural law— A fubjedt, fay PuffendorJ, .1|> long «a he continues a fubjedt, hath no way to oblige his Prince to give him his due when he refufes, it 5 though no wife Prince will ever refufe to Hand to a lawful contradi. And if the Prince gives the fubjedt kiave to- enter an adtion againft him upon fuch contradi, in his own Courts, the adtion. itfelf proceeds rather upon natural equity, than upon the)municipal laws. For the end of fuch adtion is not to compel the Prince to obferve die contradi, but to purjuade him.”

It appears, that when á petition to the perfpp of the King is properly prefented, the ufüal way is for the King to indorfe or underwrite, foit droit fait’ al partie, (let right .be.done to the party); upon which, unlefs the Attorney-General confeffes the-luggeffion,a commiffion is iffued to enquire into the truth of it t after the .return of which, the King’s attorney is at liberty to *443 plead In bar, and the merits ihall be determined upon iíTúe or demurrer, as in fuits between fubjecl and fubjecl. If the,Attorney-Gfeneral confdies tb°. fuggeftion there is ho occafion for a commiffion, his admiffion of the truth of the facts being equally conclufive as if they had been found by a jury.—See 3 Black-fiends Commentaries 256. and 4 -Com. Dig. 458.. and the authorities there cited. Though the above mentioned indorfe-' tnent be the ufual one, Lord Somers, in the courfe of his. voluminous fearch, difcovered a variety ©f other anfwers to what he confidered were unqueftionable petitions of right; in refpect to which he obferves : “ The truth is, the manner of anfwer-ing petitions to the perfon of the King was yery various;-which variety did fometimes arife from the conclufion of the party's petition : fometimes from the nature of the thing ; and fome-times from favour to the perfon ; and according as the indorfement was, the party was lent into Chancery, or the other Courts. If the indorfement was general, foit droit fait al partie, it mult be delivered to the Chancellor of England, and then a-commif-fion was to go tq find -the right p£ the party ; and that being found, fo that there was a record fo Aim, thus warranted, he is let in to interplead with the King : but if. the indorfement was fpecial, then the proceeding was to be according, to the indorfement in any other Court. This is. fully explained by Stamford, (StaundfortJ. in his treatife of the Prerog. c. 21. The cafe Mich, xo H. 4. 4. no.- '8. is full as to this-matter. The King recovers in a fihiare impedit by default againil one who was never fummoned.j the pa,r,ty cannot have a writ of deceit, without a petition. If then, fays the book, he concludes his petition' generally « que le Roy ¡ui face droit” (that the King will cauie right to be done)- and the anfwer be general, it mull go into the Chancery, that, the right may inquired of by commiffion \ and, upon the inquetl found, an original writ muftbe dlre£led to the j uftices to examine the deceit othenvife, the Juftices, benre whom the fuit was, cannot meddle : But if he conclude his -oetition efpecially,. that it may pleafe his Uigbiefs to command-b.is. Jufiices. to., proceed to. the examination, and the indorfement be accordingly, that-had