Hamilton's and Marshall's position that, under the new Constitution, the States of the Union would not be held amenable to suits brought by citizens of other States soon proved erroneous. In the case of Chisholm v. Georgia,3 decided in 1793, it was held that, under the terms of the federal Constitution, which provided that the judicial power of the Federal Government should extend to all cases "between a State and citizens of another State," a State might be made party defendant in a suit brought by a citizen of another State.4 The non-suability of a State apart from specific constitutional provision to the contrary was not passed upon. The only question was whether, considering the general political doctrines prevailing at the time of the adoption of the Constitution, the framers of that instrument could properly be held to have intended, by the use of the words "between a State and citizens of another State," that this derogation from the sovereignty of the States should exist. Justice Iredell argued that, under the Constitution, the federal courts could take jurisdiction only in those cases in which a State could, according to generally accepted principles of law, be properly made a party, namely, where it appeared as plaintiff, or consented to appear as defendant. Justices Blair, Cushing, and Wilson, and Chief Justice Jay, however, held that not only did the words of the Constitution include all cases in which a State was a party, whether plaintiff or defendant, but that there was nothing in the status of the States under the Constitution that would negative this literal interpretation of the grant of federal judicial power.

2 In The Federalist (No. LXXXI) Hamilton declares: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind." Hamilton then goes on to argue that the States would continue to enjoy this exemption under the Constitution the adoption of which he was arguing. "The exemption," he says, "as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Constitution, it will remain with the States and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repealed here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the state governments would by the adoption of the plan, be divested of the privilege of paying their own debts in their own way, free from every constraint, but that which flows from the obligation of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will." Marshall and Madison in the Virginia convention that ratified the new Constitution denied that it gave to the federal courts jurisdiction of suits that might be brought against a State by a citizen of another State (Eliot's Debates, III, 533, 555).

3 2 Dall. 419; 1 L. ed. 440.

4 In the case of Georgia v. Brailsford (2 Dall. 402; 1 L. ed. 433). it had already been held that a State might appear as party plaintiff in a suit against a citizen of another State.