The general rule for the government of the proceedings of the
court prescribes an adoption of that practice which is founded on
the custom and usage of courts of admiralty and equity, constituted
on similar principles, but the courts are authorized to make such
deviations as are necessary to adapt the process and rules of the
court to the peculiar circumstances of the country, subject to the
control of the legislature.
Mode of service of process at common law or equity in a suit
against a state.
The service of the subpoena in this case being proved, Lewis
moved at the last term that a
distringas might be awarded
in order to compel the state to enter an appearance, arguing from
the analogy between a state and other bodies corporate that this
was the proper mode of proceeding. The Court, however, postponed a
decision on the motion in consequence of a doubt whether the remedy
to compel the appearance of a state should be furnished by the
Court itself or by the legislature. And, in the present term Lewis
argued that the Court was competent to furnish all the necessary
means for effectuating its own jurisdiction.
On 12 August, THE CHIEF JUSTICE delivered the following
opinion.
By the Court:
After a particular examination of the powers vested in this
Court in causes of equity as well as in causes of admiralty and
maritime jurisdiction, we collect a general rule for the government
of our proceedings, with a discretionary authority, however, to
deviate from that rule where its application would be injurious or
impracticable. The general rule prescribes to us an adoption of
that practice, which is founded on the custom and usage of courts
of admiralty and equity constituted on similar principles, but
still it is thought that we are also authorized to make such
deviations as are necessary to adapt the process and rules of the
court to the peculiar circumstances of this country, subject to the
interposition, alteration, and control of the legislature.
We have therefore agreed to make the following general orders,
and the counsel in the present case will take his measures
accordingly.
1. Ordered that when process at common law or in equity shall
issue against a state, the same shall be served upon the governor
or chief executive magistrate and the attorney-general of such
state.
Page 3 U. S. 321
2. Ordered that process of subpoena issuing out of this Court in
any suit in equity shall be served on the defendant sixty days
before the return day of the said process, and further that if the
defendant, on such service of the subpoena, shall not appear at the
return day contained therein, the complainant shall be at liberty
to proceed
ex parte.
Lewis then observed that the subpoena in this case had been
issued on the same principles, but as the orders could only operate
in futuro, he thought it best to withdraw his motion for a
distringas and to pray that an alias subpoena might be
awarded, which was accordingly done.
