The Dangers of the Union

By Pfander, James E. | Constitutional Commentary, Winter 1995 | Go to article overview
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The Dangers of the Union

Pfander, James E., Constitutional Commentary

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.


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.

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