Page:John P. Branch Historical Papers - Volume 2.djvu/310

 If this be not a suit, I cannot conceive what is. The court again says—repeating the same idea—that the plaintiff in error only asserts the constitutional right to have his defence examined by the superior court. This is the truth; but it is not the whole truth. He also claims a judgment from the supreme court, by which a judgment to his injury is to be reversed.

I must here remark once for all, that these are new and strong proofs among many others, of the artful manner in which the pretensions of the supreme court are almost always stated. Everything which makes against their side of the question is greatly distorted and aggravated, and everything in its favor is very much palliated and softened. They often assume premises which cannot be conceded and take for granted what ought to be proved. There are arts, I had almost said artifices, scarcely to be excused in an advocate and which are surely unworthy of the high character of the supreme court.

As for the hair-splitting distinction between a citation and a summons, taken with a view to discriminate between a writ of error and an action, I cannot comprehend it. Both are served upon, or left with the Governor, and he may attend to both, or decline them at his election; but the results are precisely the same. If he does not appear upon a summons, a judgment may be rendered against him by default, and if he neglects a citation, an existing judgment in his favor may, perhaps, be reversed. There is no substantial disference between the two processes.

For the purpose of showing that a writ of error is not a suit, and therefore, not interdicted by the eleventh amendment, the court says, that while the former has always lain against judgments in favor of the United States, it is “the universally