Spencer Roane

“ No nation especially can justly complain that the states do not give a preference to foreigners over their own citizens in their courts, as none of them give a similar preference to our citizens suing in their respective kingdoms.
The court goes on to say that they are led by the causes to which they have been pleased to ascribe the amendment in question (and which I have endeavored to show are not justly to be imputed to the states) to consider that amendment as only intended for those cases in which “some demand is made” against a state by an individual. ”

“ The court still imputing to the states unworthy motives for wishing for the eleventh amendment to the constitution, on which it seeks to narrow the construction of that amendment, say that “a general interest might well be felt in leaving to a state the full power of consulting its convenience in the payment 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 the means of protecting, by the instrumentality of its courts, the constitution and laws from active violation.” ”

“ They would never have conceded that their courts are not as impartial in rendering a judgment in their favor as in giving a judgment against them. This is the ground of the distinction taken by the supreme court. Unless there be a difference in this respect against the impartiality of the state tribunals, a jurisdiction is inhibited in the first case as well as in the last. The court has here brought to its aid, and in extension of its own jurisdiction, principles too nice for common observation. ”

“ There is no reason resulting from the sovereignty or dignity of the states which does not apply as well to cases in which the state is exhibited as plaintiff, as defendant; and every reason which allows the state courts to have a just cognizance of the cause permits that cognizance to be final. The state is a defendant to a writ of error, sued out against her, and there is but little difference between the summons by which an original suit is commenced, and a citation which is consequent on a writ of error. ”

“ The supreme court seems to have triumphed over one of the defendant's counsel who had said that the construction contended for would operate a complete consolidation of the states, so far as respects the judicial power. They have conceded in effect, however, that a partial consolidation must ensue. A consolidation must be the inevitable result, to the extent of, and quoad the right of reversal, actually claimed. That partial consolidation will soon become total by destroying the checks in favor of the rights of the states deposited with the state judiciaries. ”

“ If, without the jurisdiction now claimed, it is alleged that danger will ensue to the constitutional rights of the general government, let us not forget that there is another party to the compact. That party is the state governments who ought not to be deprived of “their only defensive armour.”
As for the contemporaneous construction of the constitution by the congress who passed the judicial act of 1789, and relied upon, also, by the court, there are many circumstances combining to weaken its authority. One alone is conclusive. ”

“ As for the judges in general, before whom this matter may have come, it is well known how prone all men are to bend the knee to to superior power. The courts of small states cannot be well expected to array themselves, almost under any circumstances, against the supreme court of the United States; and as for the larger states it is a great undertaking for even their courts. Perhaps, too, the cases have not generally occurred in the state courts. Five and twenty years had ensued since the adoption of the constitution, before this question presented itself in the supreme court of Virginia. ”

“ A jurisdiction as to the latter was permitted not only because it was in itself just and fair, but would avoid broils and wars with other powers. A foreign state may justly complain of the judgments of a rival state rendered against her, but the interests of her subjects will be concluded thereby and no cause of war afforded, unless at least the injustice be glaring. ”

“ Where two rights concur in the same man, or set of men, they are to be considered as if the man or men were different; and if the right of legislating for the district had been confided to three men by name, and their successors, the ambiguity which is supposed to exist in this case, would not have appeared. ”

“ In addition to the arguments commonly used to show that this preamble cannot be taken into the account, in deducing the powers of the General Government, I will add from the writer last mentioned [23] that this expression, far from implying that the old articles of confederation, and “perpetual union” between the states were to be given up, in favor of a new, national, and consolidated government, strongly implies the contrary. He adds that a single compact among individuals for establishing a government, is never termed “an Union;” ”

“ Again it is said [7] , that “to ascribe to the federal courts by mere implication and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence would be altogether forced and unwarrantable. ”