Page:John P. Branch Historical Papers - Volume 2.djvu/312

 error, is to re-examine the question whether the constitution, &c. had been violated. It is also uncandid to say, that the effect of that writ is not to restore the plaintiff to the possession of a thing, that he demands. If the money of the plaintiff in error had been made under the reversed judgment, I presume that it would have been restored to him by the effect of the writ of error, and the judgment of the reversal by the supreme court; and there can surely be no real difference between a writ of error sued out before or after the levying of the execution.

The court then goes to say, that if they are mistaken as to this effect of a writ of error, and if a writ of error be a suit within the meaning of the eleventh amendment to the constitution, the one before us is yet not a suit within the operation of that amendment, it not being a suit “prosecuted by a citizen of another state, (or by a state), or by a subject or citizen of a foreign state.” I must here remark, by the way, that the court errs in supposing that that amendment extends to suits brought by “a state.” I proceed to remark that the court is of this opinion, because, on the contrary, the plaintiff is a citizen of Virginia, and because, by the constitution as it originally stood, the judicial power was extended to all cases arising under the constitution &c. without respect of parties, and therefore included controversies between a state and its own citizens. The amount of this reasoning seems to be that, although the court would be bound by a jurisdiction once given, and then retracted by the people of the United States, even when the construction of that constitution should come in question, it would assume it without hesitation in a case, in which it has never been granted or, if granted, only granted by remote and distant implication; and yet the court is as much