
    Hollingsworth, et al. versus Virginia.
    THE decifion of the Court, in the cafe of Cbijbobn, £x’or. ' verfus Georgia, (2 Dali. Rep. 419) produced apropofi- ' verfus Georgia, (2 Dali. Rep. 419) produced apropofition in Congrefs, for amending the Conftitution of the United States,'according to the following terms :
    “ The Judicial power of the Ünited States ihall notbecon-ftrued to extend to any fuit in lav/ and equity, commenced cr profecuted againft one of the United States,Ty citizens “ of another ftatc,-or by citizens or fubje&s of any foreign “ ftate.”
    The proportion being now adopted by the ' conftitutional number of .States, fee Attorney-genera], fubmitt-ed this queftion to the Court,—..Whether the Amendment did, or did not, fuperfede all fuits depending, as well as prevent the inftitution of new fuits, againft any oiie of the United States, by citizens of another S.ate ?
    
      TV. Tilgbman and'Rawle^
    
    argued irf'ft-fi^: negative, contend^ ing, that the jurifdidtion of the.Court was1-unimpaired, in rela- ’ tion to all fuits inftit-uiedj prev.ioufly t<J the adoption, of the amendment. They premifed, that it would be a great hardfhip, that perfons legally luit’éjffcould be deprived of a right of a£t ion, or be condemned to the'pay merit-of coftsyby sn amendment of the Qonftitution ex pcjlfa&o; 4 Bac. Abr% 6.36 7. pi. 5- And that the jurifmoti’or; being before regula: ly eftabl¡ fiied, the amend"ment 1 »-‘'twil1iíI-«íuU .‘.g the words “Jbeill not be construed,” &c. niuft be cc.nficiered, in fact, as iatroduftorv of a new fyftem of judicial authority. There are, however, twh objections to be d i feu fifed : ift. The amend ment has not been propofed in the form prcfcribed by the Gonftitutbn, and, therefore, it is void. Upon ah inípeéíion of the original roll, it appears that the amendment was never fubmitted ro the F render: t for his- approbation. The ’Conftitution declares that “ every order, re- “ foliation, or vote, to which the concurrence of the Senate and i4.Houfc of Reptefer.tatives may be neceffary (except, on a “ queftion of adjournment) (hall be prefented to the Prefident “ of the United States5 and before the fame/hall take effeiff, ■“ fhall be approved by him, or being difapproved by him, ftiall <l be repslicd by two thirds of the Senate and Fío ufe of Repre- <( fentatives,.&c.” Art. 1. f 7. Now, the Conftitution, likewife declares, that the concurrence of both Houfes fhall be neceffa-ry to a propofition tor amendments. Art. 5. .And it is no an-Aver to the objection, to obferve, that as two thirds of both Houfes are required to originate t.he propofition, it would be-nugatory to return it with the Prefid-mt’s negative, to be re--pafsed by the fame number; fince the reafons aligned for his ■difapprobation mipht be fo fatisfaefory as to reduce the majority below the conftitufioñal proportion.' The -concurrence of the Prefident is required in matters of infinitely lefs importance; and whether on'fubjects of ordinary legiflation, or of conftitütionol amendments, the expreffion is the fame, and' equallyapplies to the act of both Houfes of Congrefs..
    2d. Thefecond objedlion arifes from the terms of the amendment itfsif. The wordscommenced or profecuted,” are .properly in the paft time; but, it is dear, that they ought not to be fo gramatically reftricied ; for, then, a citizen need only difeontinue- his prefent fuJt, and commence another, in order to give the court cognizance of the caufe. To avoid this evident abfurdity, the words muft be conftrued to apply only to fuits tole tc commenced and profecuted.” Thefpirit of the conftitution is oppofed to every thing in the nature of an ex poft fasto law, or retrofpedtive regulation. No ex poft faSto law can be pafled.by Congrefs,' Con ft. Art. 1. f. 9. No « foflfaño law can be pafled by the Legiflature of any indi*, ¡dual State, lhid.f. 10. It is true, that an amendment to the Conftitution cannot be controuled by tbofe provifions; and it the words were explicit and pofitive, to produce the retrofpec-tive effedt contended for, they muft prevail. ■ But the words áre doubtful; and,.thcrcfoie, they ousht to be fo conftrued, as to conform tó the general principle of the Conftitution. In 4 Bac. Mr. 650. pi. 64. it is dated, that “ a datute ihall ne-vcr have an equitable conilruiftion, in order to overthrow arc-edatebut, if the.oppodte do&ine prevails, it is obvious that -many veded rights will be bffe&d, many edates will be overthrown. For indance; Georgia has made and unmade grants of land, and to compel a -efort to her courts, is, in effect, .overthrowing the edate-of the grantees. So, in the fame book (p. 652. pi. 91-. 92.) it is faid, that “ a datute ougnt to be fo condrued, that 110 man, who is innocent, be puniAed or endamaged;” and “ no datute ihall-be condrued in fuch manner, as to be inconvenient or againd rcafpn:” -whereas the propofed condru&on of the amendment would be highly injurious to.innocent pérfons ; and, driving; them from the ju-Vifdi&on of’this court-faddled with cods, ⅛ againd every principle of judice, reafon,' and convenience. Prefuming, then, that there will be a difpo/ition to fupport any rational expodtion, which avoids fitch mifehievous corjfequences, it is ¡to be obferved, that the words “ commenced and profecuted” are ilnonimous. There was no neceffity for ufing the word ‘'commenced,”- as it is implied and included in the word “profecuted;” and admitting this gloiTary, the amendment will only affetft the future -j.urifdi&on of the court.. It may be laid, however, that the word “ commenced” is ufed in relation to future fuits, and that the word “ profecuted” is applied to fuits previoufly inftituted. But it will he fufficient to anfwer, in favor of the-benign c.onftru&on, for which the Plaintiffs contend, that the word “ commencing” may, on this ground,, be confined to afiions originally inftituted here, and the word “ profecuted” to fuits broug'ht hither by writ of error, or appeal.- For, it is to be fbewn, that a ftate may be fued originally, andyetmot in the Supreme Court, though the Supreme Court will 'have an appellate jurifdi&oh ; as where the laws of a ftate authorize fuch fuits in her pwn codrts, and there is drawn in queftion the validity of a treatv, or ftatute of, or authority exercifed under, the United States, and the deci-fion is againft their validity. X Vol. p. 58. f. 13. p. .6325* Upon the’whole, the words of- the amendment are ambiguous and obfeure; but as Asy aré fufceptible of an interpretation, which will prevent the'mifohief of an ex poft fa fio. Conftitution (werfe than jin. expefi facts law, in as much as it is not foca-fdy refeinded, or repealed) that interpretation ought to b,e preferred,
    Lee, Attorney General.
    The cafe before-the co.urt, is that of a fim againft a ftate, in which the Defendant has never entered on appearance-:'-but the amendment is é'qually operative in all the cafes againft ftate-s,where there has been an appearance, or cvenwhere there have been a.trial and judgment.. An amendment of the conftitution, and the repeal o.f a law,- are not, manifeftly, on the fame footing: IN or can an explanatory law be expounded by foreign matter. The amendment, in the prefent -inftance, is merely'explanatory, in-fubftancc, as well as language. From the moment thofe who' gave the power to fue a fíate, revoked and annulled it, the power ceafed to be a part of the conftitution ; and if it does not exift there, - it cannot in any degree be found, or exercifed, elfc where. The policy and rifles, which in relation to ordinary acts of legiflation, declare that' no ex ■poft faSlo law íhall be paffed, do not apply to the formation, of amendment, of a conftitution. The people limit and rc-ftrain the power of the legiflature, a&ing under a. .delegated authority; but they impofe no reftraint on themfelves. -They could have faid by an amendment to the.conftitution, that no-, judicial authority Ihould be exercifed, in any cafe, under the United States', and, if they had faid fo, could a court be held, •or a judge proceed, on arty judicial bufmefs, paft or futurej -from the moment of adopting the amendment ? On general-ground, then, it was in the power of the people to annihilate., the whole, and the queftion is, whether they have annihilated, a part, of the judicial authority of the United States ? Two cbjefíioris are made : ift, That the amendment has not been propo.fed in due form. But has not the fame courfe been pursued relative to- all the other amendments,-, that have been ‘adopted ?-And the cafe of amendments is evidently a fitbftan-tive atft, unconnected with the. ordinary bufinefs of legiffati.on, ■and not within the policy, qr terms, of inyefting the Prefident with a qualified negative on the a¿ts and refolutions of Con-grefs. 2d, That the amendment itfelf only applies to future fuits. Büt whatever force there may be in the rules' for con-itruing ftatutes, they cannot be applied to the prefent cafe. It was the policy of the people to cut off that branch of the .judicial power, which had been fuppofed to authorize fuits by individuals againft ftates ; and the words being fo extended as to fupport that poliey,-will equally apply to the paft and to the future. A law, however, cannot be denominated retr.ofpeclive, or ex poft faSto, which merely changes the remedy, but does not affect the.right: In all the ftates, in fome form or other, a remedy is furniihed for the fair claims o£ individuals againft the refpeCtive governments. The amendment is ■ paramount "to-allthe laws of the union; and if any part of the judicial act is in oppofit-ion to it, that patt rhuft be expunged. There can be no amendment óf the conftitution, indeed, which may wot, in feme refpedi, be called'¿.r poft fado; but the moment it is adopted, the power that it gives, or takes away, begins to operate, or ceafes to exifr.
    
      
       Chas», juftice. The words “ commenced and profecuted,” (landing alone, would embrace cafes both paft and future.
      
        W. TUghnctn. But if the court can conftrue them, fo as to confine "their operation to future cafes, they will do it, in order fo avoid the effect of an r.v pojl fd8o Iaw3 which is evidently contrary to the fpirit ot the eonftitutioa:
    
    
      
       Chase, y-ifiicc. There can, Airely, be no neceflity to anfwer that argument. The negative of the Preiident applies only to the ordinary cafes of legiflation : He has nothing to do with rhje proportion,- or adoption, of amendmen ts to the Conftiunion. .
    
   The Court,

on.the day fucceeding the argument, delivered an unnanimous opinion, that the amendment being confti-tutionaliy adopted, Aere cotild not be exercifed any jurifdiction, in any cafe, paft or future, in which a Rate was fued by the citizens of another Rate, or by citizens, or fubje£ls, of any foreign fíate.  