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propriety, the laws of nations do not positively forbid it, and the examples of nations in less favored times might afford some excuse for it. But what must be the reply? It must be, that these acts were done in a time of profound peace; that they fell alike upon citizens and upon strangers; upon the child, who was too young to be otherwise than innocent, and women and aged men, who were too feeble to be feared; that they were directed against no crime; that they were justified by no principle; that they were naked acts of arbitrary power, prompted by no motive except a base love of money. We cannot bring ourselves to fear, that the American people, or any considerable part of them, will ever stand fairly before the world in judgment for this great crime. We know, that their dangers and difficulties are not small; but we believe they will be met and overcome by the vigor and courage which have hitherto conquered all difficulties, and met all dangers undismayed. It is, however, the part of wisdom to look steadily at these dangers and difficulties, and it may aid us to do so, if we consider the effects already produced by repudiation.
The first and most obvious effect of even the small favor with which this doctrine has been received is, that it has seriously impaired the pecuniary credit and resources of the country. The conduct of a few States has not only destroyed their own credit, and left their sister States very little to boast of, but has so materially affected the credit of the whole Union, that it was found impossible to negotiate in Europe any part of the loan authorized by Congress in 1842. It was offered on terms most advantageous to the creditor; terms which, in former times, would have been eagerly accepted; and after going a begging through all the exchanges of Europe, the agent gave up the attempt to obtain the money in despair. It is impossible to believe, that any capitalist refused to lend his money because he doubted the ability of the United States to pay their debts. Nor is it credible, that the mere failure of a few of the State governments to meet their engagements would have produced this extraordinary effect. It is the truth, and it should sink into the heart of every American, that this loan was refused because Europe doubted the honor of this country. We say it should sink into the hearts of our countrymen; but it should stir no anger there. We know, that the honor of this Union
is, and we firmly believe it ever will be, untarnished. know the distinction between the States and the national government, and the hardship of most of the cases in which States have failed to perform their promises; and we know, too, how little progress the odious and infamous doctrine of repudiation has made. But the word repudiation has been sounded in the ears of men in Europe, till they have begun to fear it is the settled doctrine of a majority of our people. Every failure to meet an engagement by a State is looked upon as a practical result of this theory. And it is, therefore, not at all wonderful, that the pecuniary credit of the country should first be brought into doubt, and then speedily destroyed. We have no right to be angry; but we cannot help feeling a deep concern both for the cause and the effect. For, aside from all considerations which affect our national honor, the pecuniary credit of a State is a matter of great public concern. All governments are liable to unforeseen and pressing wants, which can only be met and supplied through the public credit; because these wants occur under such circumstances as render immediate and adequate supplies highly important, or absolutely necessary, and when taxation cannot furnish them speedily enough to meet the pressing occasion. Our form of government does not exempt us from such wants. The two great political parties, which have ruled this country since the adoption of the Constitution, agree, that any accumulation of money raised by taxation is not to be thought of, and that no more is to be drawn from the people than is absolutely necessary, for the time being, to enable the government to exercise economically its appropriate functions. But both parties have found, when in power, what, indeed, any party must always find, that there are always great obstacles in the way of a large and sudden increase of taxes. No people will submit to it willingly. It requires time to convince them of its necessity and policy; some time is necessary to enable them to accommodate their affairs and resources to the new demand. But the emergency leaves no time. Invasion or insurrection will not wait till public opinion has become reconciled to an increase of taxation, and till the public agents have gone through the slow process of obtaining a supply from that
We have learned, also, from the experience of the last
three years, that even in time of peace, and when there are no extraordinary demands upon the energies of the country, it may not be possible to carry on the government without the aid of loans. Within that short period, we have seen the national government become so embarrassed, that it could not have performed its most necessary functions, if relief had not been obtained by borrowing money. And we have had some opportunity to see what great pecuniary sacrifices must be made by the public, when money must be had while a shade rests on the credit of the borrower, and how important, in point of economy as well as honor, is an unstained reputation for fidelity to engagements. It concerns, therefore, the safety of every government, that the prompt and adequate resources of the public credit should not be trifled with and lost.
The views which we have thus far presented respect our domestic condition and policy; but the subject has a direct connexion with the foreign relations of the United States. It has always been admitted to be one of the duties, and, consequently, one of the rights, of the sovereign power in every nation, to see that gross injustice be not done to its subjects or citizens, in a foreign country. If the injustice be of such a nature as to admit of legal remedy, and the courts of the land where it is done are open for redress, the sovereign is bound to wait till that redress has been sought for and refused in the highest court known to the law of that country. It is presumed, that justice will be done according to the course of the law of the land; and this presumption can be removed only by an actual failure to obtain it in the highest court. No nation can answer for the equity of proceedings in all its inferior courts. It suffices to provide a supreme judicature, by which error and partiality may be corrected. This presumption holds even when redress has been refused, unless the decision is palpably wrong, -in re minime dubiâ. But where the decision against the foreign claimant is evidently unjust, or when the law studiously withholds its aid, so that he cannot obtain the fruits of a decision in his favor, or when the courts of the country are not open to his suit, the foreign sovereign is bound to listen to the complaints of his subject thus injured, and either make indemnification, or seek it from the people by whom the wrong has been done. It is apparent, therefore, that at no
distant day, this matter may become the occasion of negotiation with those governments whose subjects are interested in these debts. In such an event, the preliminary question would be, whether any courts of this country are open to foreigners seeking to recover their money of the States. As a general rule, the courts of the States cannot entertain a suit against the States. There are only three exceptions known to us, and those are the State of Mississippi, which allows the holders of her bonds to bring suits against the State in her own Court of Chancery, and the States of Maryland and Virginia, which, in some instances, have allowed suits against themselves, but always, we believe, by special laws. How far the case of Mississippi would come within the rule of international law which binds the claimant to seek for redress in the courts of the land where the wrong was done, we are not prepared to say. So far as we know, it would be a new case. The chancellor of Mississippi is elected by the people every six years. He is, therefore, appointed by, and directly dependent on, one of the parties to the suit, and the case has been prejudged by the legislature. Now, if the rule should apply at all, and the parties should be held bound to seek for justice at the hands of a judge thus situated, it seems clear, that the decision would be much more open to doubt than in ordinary cases where the foreigner sues a citizen. If the presumption, that justice will be done according to the law of the land, should exist, it would certainly be weak and easily removed, and would be quite as likely to lead to disputes and contentions as to settle them.*
It is manifestly of great importance to us to have the full benefit of the presumption, which, for the sake of peace, the law of nations raises in such cases. Without this presumption, the claim for redress must be made on the government of the United States, and the cases judged of and decided by the parties to the negotiation; after which, if the foreign government is not satisfied with the result, it has
* The conduct of the courts of the States in reference to British debts was a fruitful source of controversy between England and this country in 1792, and it is notorious, that great amounts of those debts were not, and could not be, recovered, until after the establishment of the courts of the United States. See the correspondence between Mr. Jefferson and Mr. Hammond, the minister of Great Britain. Wait's Am. State Papers, 1789 to 1796. Ware v. Hylton, 3 Dal. R. 199. Elliot's Debates, 142 - 144, 282. VOL. LVIII. NO. 122.
With it, the
just cause for reprisals, and even for war. matter is first submitted to the highest legal tribunal, and the foreign government is bound to be satisfied with its decision, unless so palpably wrong, as to give rise to the belief that it was corruptly made. We have said, that the claim for redress must be made upon the United States; for we cannot entertain the least doubt, that the national government is as much responsible for injustice done to foreigners by the States, as by individuals or corporations. Foreign states can know only that sovereign which has the power to make war and peace, to negotiate and enter into treaties. They can no more have relations with a State, than with a county. If the wrong is done within the territory of the United States, the United States must answer for it.
But we believe our Constitution has not left us without the protection which is enjoyed by all other nations who have courts of justice open to foreigners seeking redress, and where they are bound to presume that justice will be done. The Constitution, as originally adopted, contained in Art. III. § 2, the following words; "The judicial power shall extend to controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects." The eleventh article of the amendments declares, that "The judicial power of the United States shall 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." Thus the original provision, as to suits against one of the United States by foreign states, was allowed to stand. Mr. Chief Justice Marshall, in his very able opinion in the case of Chisholm v. The State of Georgia, has stated the reason of this provision in such a manner as renders it quite applicable to our present purpose. He says, the Constitution contained this provision, because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations or people ought to be ascertained by, and depend on, national authority." There can be no doubt, therefore, that, by the very terms of the Constitution, a foreign state or sovereign may sue one of the United States in some court of the United States. Nor has the Constitution left it doubtful, or even left it for Congress to provide, which court it shall be; for it contains