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$ 1678. Since this amendment has been made, a question of equal importance has arisen ; and that is, whether the amendment applies to original suits only brought against a state, leaving the appellate jurisdiction of the Supreme Court in its full vigour over all constitutional questions, arising in the progress of any suit brought by a state in any state court against any private citizen or alien. But this question will more properly come under review, when we are considering the nature and extent of the appellate jurisdiction of the Supreme Court. At present, it is only necessary to state, that it has been solemnly adjudged, that the amendment applies only to original suits against a state; and does not touch the appellate jurisdiction of the Supreme Court to re-examine, on an appeal or writ of error, a judgment or decree rendered in any state court, in a suit brought originally by a state against any private person.?

§ 1679. Another inquiry suggested by the original clause, as well as by the amendment, is, when a state is properly to be deemed a party to a suit, so as to avail itself of, or to exempt itself from, the operation of the jurisdiction conferred by the constitution. To such an inquiry, the proper answer is, that a state, in the sense of the constitution, is a party only, when it is on the record as such; and it sues, or is sued in its. political capacity. It is not sufficient, that it may have an interest in a suit between other persons, or that its rights, powers, privileges, or duties, come therein incidentally in question. It must be in terms a plaintiff or defendant, so that the judgment, or decree may be binding upon it, as it is in common suits binding upon parties and privies. The point arose in

1 Cohens v. Virginia, 6 Wheat. R. 264.

an early state of the government, in a suit between private persons, where one party asserted the land in controversy to be in Connecticut and the other in New York; and the court held, that neither state could be considered as a party.' It has been again discussed in some late cases; and the doctrine now firmly established is, that a state is not a party in the sense of the constitution, unless it appears on the record, as such, either as plaintiff or defendant. It is not sufficient, that it may have an interest in the cause, or that the parties before the court are sued for acts done, as agents of the state. In short, the very immunity of a state from

1 Fowler v. Lindsey, 3 Dall. R. 411; S. C. 1 Peters's Cond. R. 190, 191; State of New York v. State of Connecticut, 4 Dall. R. 1, 3 10 6; United States v. Pelers, 5 Cranch’s R. 115, 139; 1 Kent's Comm. Lect. 15, p. 302, (2d edit. p. 323.)

2 The reasoning of Mr. Chief Justice Marshall in Osborn v. Bank of United States, (9 Wheat. R. 846, &c.) on this point is very full and satisfactory, and deserves to be cited at large. It is only necessary to premise, that the suit was a bill in equity brought by the Bank of the United States against Osborn and others, as state officers, for an injunction and other relief, they having levied a tax of one hundred thousand dollars on certain property of the bank, under a stute law of the state of Ohio. “We proceed now," said the Chief Justice, “to the 6th point made by the appellants, which is, that if any case is made in the bill, proper for the interference of a court of chancery, it is against the state of Obio, in which case the circuit court could not exercise jurisdiction.

“The bill is brought, it is said, for the purpose of protecting the bank in the exercise of a franchise, granted by a law of the United States, which franchise the state of Ohio asserts a right to invade, and is about to invade. It prays the aid of the court to restrain the officers of the state from executing the law. It is, then, a controversy between the bank and the state of Ohio. The interest of the state is direct and immediate, not consequential. The process of the court, though not directed against the state by name, acts directly upon it, by restraining its officers. The process, therefore, is substantially, though not in form, against the state, and the court ought not to proceed without making the state a party. If this cannot be done, the court cannot take jurisdiction of the cause.

“ The full pressure of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of the state in the suit, as

being made a party, constitutes, or may constitute, a solid ground, why the suit should be maintained against other parties, who act as its agents, or claim under its title; though otherwise, as the principal, it might be fit, that the state should be made a party upon the common principles of a court of equity.

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brought, is admitted ; and, had it been in the power of the bank to make it a party, perhaps no decree ought to have been pronounced in the cause, until the state was before the court. But this was not in the power of the bank. The eleventh amendment of the constitution has exempted a state from the suits of citizens of other states, or aliens; and the very difficult question is to be decided, whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands.

“ Before we try this question by the constitution, it may not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members, should the objection prevail.

“ A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfecily clear in themselves ; to cases, where the government is in the exercise of its best established and most essential powers, as well as to those, which may be deemed questionable. It as. serts, that the agents of a state, alleging the authority of a law void in itself, because repugnant to the constitution, may arrest the execution of any law of the United States. It maintains, that, if a state shall impose a fine or penalty on any person employed in the execution of any law of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue, the marshal of a district, the recruiting officer, m:y all be inhibited, under ruinous penalties, from the perforinance of their respei tive duties; the warrant of a ministerial officer may authorize the colection of these penalties; and the person thus obstructed in thie performance of his duty, may indeed resort to his action for damages, after the infirtion of the injury, but cannot avail himse'f of the preventive justice of the nation to protect hin in the performance of his duties. Each member of the Union is capable, at its will, of

i Osborn v. Bank of United Statrs, 9 Wheat. R. 732, 8338 to 845; Id. 816; The Governor of Georgia V. Madruzo, 1 Peters's Sup. R. 110, 111, 122.

§ 1680. The same principle applies to cases, where a state has an interest in a corporation; as when it is a stockholder in an incorporated bank, the corporation is still suable, although the state, as such, is

attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armour, and incapable of shielding its agent, or executing its laws, otherwise than by proceedings, which are to take place after the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation.

"These are said to be extreme cases; but the case at bar, had it been put by way of illustration in argument, might have been ternied an extreme case; and, if a penalty on a revenue officer for performing his duty, be more obviously wrong, than a penalty on the bank, it is a difference in degree, not in principle. Public sentiment would be more shocked by the infliction of a penalty on a public officer for the performance of his duty, than by the infliction of this penalty on a bank, which, while carrying on the fiscal operations of the government, is also transacting its own business. But, in both cases, the officer levying the penalty acts under a void authority, and the power to restrain him is denied as positively in the one, as in the other.

“The distinction between any extreme case, and that which has actually occurred, if, indeed, any difference of principle can be supposed to exist between them, disappears, when considering the question of jurisdiction ; for, if the courts of the United States cannot rightfully protect the agents, who execute every law authorized by the constitution, from the direct action of state agents in the collection of penalties, they cannot rightfully protect those, who execute any law.

“ The question, then, is, whether the constitution of the United States has provided a tribunal, which can peacefully and rightfully protect those, who are employed in carrying into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws.

“ The state of Ohio denies the existence of this power; and contends, that no preventive proceedings whatever, or proceedings against the very property, which may have been seized by the agent of a state, can be sustained against such agent, because they would be substantially against the state itself, in violation of the 11th amendment of the constition.

“That the courts of the Union cannot entertain a suit brought against a state by an alien, or the citizen of another state, is not to be

exempted from any action.' The state does not, by becoming a corporator, identify itself with the corporation. The bank, in such a case, is not the state, although the state holds an interest in it. Nor will it

controverted. Is a suit, brought against an individual, for any cause whatever, a suit against a state, in the sense of the constitution ?

“ The 11th amendment is the limitation of a power supposed to be granted in the original instrument; and to understand accurately the extent of the limitation, it seems proper to define the power that is limited. The words of the constitution, so far as they respect this question, are, ‘The judicial power shall extend to controversies between two or more states, between a state and citizens of another state, and between a state and foreign states, citizens, or subjects. A subsequent clause distributes the power previously granted, and assigns to the Supreme Court original jurisdiction in those cases, in which “a state shall be a party. The words of the 11th amendment are, '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 a foreign state.'

“ The bank of the United States contends, that in all cases, in which jurisdiction depends on the character of the party, reference is made to the party on the record, not to one, who may be interested, but is not shown by the record to be a party. The appellants admit, that the jurisdiction of the court is not ousted by any incidental or consequential interest, which a state may have in the decision to be made, but is to be considered as a party, where the decision acts directly and immediately upon the state, through its officers.

“ If this question were to be determined on the authorty of English decisions, it is believed, that no case can be adduced, where any person has been considered as a party, who is not made so in the record. But the court will not review those decisions, because it is thought a question growing out of the constitution of the United States, requires rather an attentive consideration of the words of that instrument, than of the decisions of analogous questions by the courts of any other country.

“ Do the provisions, then, of the American constitution, respecting controversies, to which a state may be a party, extend, on a fair construction of that instrument, to cases in which the state is not a party on the record ? The first in the enumeration, is a controversy between two or more states. There are not many questions, in which a state would

i United States Bank v. Planters' Bank of Georgia, 9 Wheat R. 904 ; Bank of Com'th of Kentucky v. Wister, 3 Peters's Sup R. 318. VOL. III.


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