In the same suit, Jay and Cushing maintained that the United States cannot be sued, a dictum since followed, though the Constitution gives jurisdiction to the courts where the United States are a party.
At this time all the States were greatly indebted and many suits were instituted against them, the United States Courts maintaining their jurisdiction over the States. The alarm was general, and to quiet the apprehension that was so extensively entertained, an amendment, taking from the United States judicial power in suits against a State, was adopted in Congress and afterwards ratified by the State Legislatures in 1798. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation may be inferred from the terms of the amendment. It left jurisdiction to the United States of controversies to which the United States shall be a party, of controversies between two or more States, between citizens of different States, between citizens of the same State claiming under grants of different States.[61]
Early in our history, in the second administration of Washington, a formidable, armed, organized resistance was made to the enforcement of the excise laws of the General Government in the western portion of Pennsylvania, which extended into a part of Virginia. It was computed that there were sixteen thousand men capable of bearing arms in the district in insurrection. Washington called out the militia of several of the States and, as Commander-in-chief, suppressed the revolt. The march of the troops was fatiguing and long, late in the fall, in rain and storms, which caused much suffering and, in the end, a good many deaths. The insurrection was crushed by the power of the General Government with promptness and vigor, much to the satisfaction of Washington and Hamilton then Secretary of the Treasury; it strengthened the government and the administration. Of the prisoners tried before the United States Court at Philadelphia two were found guilty of treason, who from some palliating circumstances were ultimately pardoned by the President.[62]
We have seen what were the opinions of the nature of the new government held by Hamilton, Mason, and Clinton, three of the persons Mr. Lodge named. There can be no doubt what Washington’s was. No one knew better than Washington, what a miserable condition the States, then petty in population and poor in resources, would be without a strong, indissoluble Union. Only one of the States, Virginia, had over half a million of inhabitants, nearly half slaves; two had about sixty thousand.
Washington, long before, on the disbanding of the army in 1783, wrote to the governors of the States that, according to the policy the States should adopt, depended whether the revolution was a blessing; and he put “first” among the essential requisites “an indissoluble union of the States under one federal head.”[63] In his address as president of the convention submitting the Constitution to the Congress of the States, he said: “In all our deliberations on this subject we kept steadily in our view that which appeared to us the greatest interest of every true American, the consolidation of the Union, in which is involved our prosperity, felicity, safety, perhaps our national existence.” In his farewell address, as President, to the people of the United States, in no less emphatic terms, he declared the importance and the success of the Union. He said: “The unity of Government, which constitutes you one people, is also now dear to you; it is justly so, for it is a main pillar in the edifice of your real independence—the support of your tranquillity at home, your peace abroad; of your safety; of your prosperity; of that very liberty which you so highly prize.”[64]
We have before stated, that at the institution of our government there was a great fear on the part of a portion of the people of its consolidation and the extension of its granted powers over those reserved to the States and people. It was not however until the administration of John Adams, about ten years after the government had gone into operation, that the power of a State to pass judgment on the validity of the acts of the United States was suggested. Those who had elected Adams as President called themselves Federalists, and, as is natural in those controlling the government, were in favor of a liberal construction of its powers. The name federal, taking its Latin derivation, refers to a bond uniting states; that bond may be, however, that of a confederacy or of a nation. Perhaps it was a misnomer for the party in favor of a broad national construction of the Constitution. The name has come into use, however, as descriptive of our government; it is very generally called the Federal Government. The proposed uniting of states, like the British colonies in the Pacific, is spoken of as federal. Indeed there is no substantial objection to terming any sort of government made by a constitution or agreement federal.
The party, at that time of our history, in opposition to the Federal, and who were in favor of a strict construction of the Constitution, called themselves by the national name of Republicans. When, however, they came into power under Jefferson, they were no longer strict constructionists.