Page:United States Reports, Volume 2.djvu/443

Rh

consistently with the clear intention of the act, but such as a proper State Court would have been at least comepetent [sic] to exercise at the time the act was passed.

If therefore, no new remedy be provided (as plainly is the case), and consequently we have no other rule to govern us but the principles of the pre-existent laws, which must remain in force till superceded [sic] by others, then it is incumbent upon us to enquire, whether previous to the adoption of the Constitution (which period, or the period of passing the law, in respect to the object of this enquiry, is perfectly equal) an action of the nature like this before the Court could have been maintained against one of the States in the Union upon the principles of the common law, which have shewn to be alone applicable. If it could, I think it is now maintainable here: If it could not, I think, as the law stands at present, it is not maintainable; whatever opinion may be entertained, upon the construction of the Constitution, as to the power of Congress to authorise [sic] such a one. Now I presume it will not be denied, that in every State in the Union, previous to the adoption of the Constitution, the only common law principles in regard to suits that were in any manner admissible in respect to claims against the State, were those which in England apply to claims against the crown; there being certainly no other principles of the common law which, previous to the adoption of this Constitution could, in any manner, or upon any colour, apply to the case of a claim against a State in its own Courts, where it was solely and completely sovereign in respect to such cases at least. Whether that remedy was strictly applicable or not, still I apprehend there was no other. The only remedy in a case like that before the Court, by which, by any possiblity, [sic] a suit can be maintained against 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 is that which is called a Petition of right. It is stated, indeed, in ''Com. Dig.'' 105. That “until the time of Edward I. the King might have been sued in all actions as a common person.” And some authorities are cited for that position, though it is even there stated as a doubt. But the same authority adds—“but now none can have an action against the King, but one shall be put to sue to him by petition.” This appears to be a quotation or abstract from Theloall’s Digest, which is also one of the authorities quoted in the former case. And this book appears (from the law catalogue) to have been printed so long ago as the year 1579. The same doctrine appears (according to a quotation in Blackstone's Commentaries, 1 Vol. 243) to be stated in Finch’s Law 253, the first edition of which, it seems, was published in 1579. This also more fully appears in the case of the Bankers, and particularly from the celebrated argument of Lord