the law of nations the nation may espouse the claim of its subject or citizen and appear as trustee in his behalf. But the refusal of the Supreme Court to forsake the beaten track of precedent, even although it would enhance its prestige and enlarge its usefulness, was a guarantee to the States of the Union that their interests could safely be entrusted to a court of their creation, and the decision in these two cases is likewise a guarantee to the States of the larger society that a tribunal of their creation can be kept within the bounds assigned to it in the convention creating it, because of the action of the Supreme Court in this very matter. Briefly stated, the facts were that sundry citizens of the State of New Hampshire held bonds of the State of Louisiana which were overdue and unpaid and which that state was unwilling to pay. The holders of the bonds upon which suit was brought assigned them to the State of New Hampshire for the express purpose of putting them in suit, in accordance with a statute of the State of New Hampshire passed July 18, 1879. The Attorney-General was, by this act, authorized to bring suit in the name of New Hampshire in the Supreme Court of the United States against the State. of Louisiana, to associate with him in the prosecution thereof the assignor and his counsel, and from the proceeds of suit, or compromise if made, to deduct the expenses and to remit the balance to the citizen of the State who had assigned the bonds for the purpose of suit. In all its essentials the act of May 15, 1880, passed by the State of New York, was identical in substance, if slightly dissimilar in form. On this state of facts the two cases were before the Court, which, whether the question of jurisdiction is raised or not by the defendant state and its counsel, tests the cases made by the pleadings in order to determine for itself whether it should, as a court of limited jurisdiction, entertain them, apparently as careful of its reputation as Caesar is said to have been of the reputation of his wife. The very first words of Chief Justice Waite, after stating the case, were: The first question we have to settle is whether, upon the facts shown, these suits can be maintained in this court.1 After quoting the provision of the Constitution extending the judicial power of the United States to 'Controversies between two or more States', and 'between a State and Citizens of another State'; and the further provision of the Constitution that in cases in which a State shall be a party the Supreme Court shall have original jurisdiction', the Chief Justice referred to and discussed in detail the case of Chisholm v. Georgia (2 Dallas, 419), decided in 1793, in order to show that the jurisdiction assumed by the Court in that case of a citizen against a State of the Union had been withdrawn by the 11th amendment, so that if the real parties to this suit were citizens of New Hampshire and of New York the spirit of the amendment would be violated if the court gave the plaintiffs a hearing. From an examination of the facts of the two cases the Court came to the conclusion that title did not pass from the citizens to the States, so that the individuals lost their interest and the states became the only parties of interest in the transaction, leaving untouched and to be decided as it arose the case of a gift from the citizens of a State vesting it with title without reservation of interest on their part—a case which arose and of which the Supreme Court entertained jurisdiction in the compara1 State of New Hampshire v. State of Louisiana (108 U.S. 76, 86). tively recent case of South Dakota v. North Carolina (192 U.S. 266), decided in 1904. Closing with a reference to Chisholm v. Georgia, with which the Chief Justice began his opinion, he said, speaking for a unanimous court: Amend ment. In the argument of the opinions filed by the justices in the Chisholm case, there is not even an intimation that if the citizen could not sue, his State could sue for him. The evident purpose of the amendment, so promptly proposed and finally adopted, Object of was to prohibit all suits against a State by or for citizens of other States, or aliens, the 11th without the consent of the State to be sued, and, in our opinion, one State cannot create a controversy with another State, within the meaning of that term as used in the judicial clauses of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens. Such being the case we are satisfied that we are prohibited, both by the letter and the spirit of the Constitution, from entertaining these suits, and The bill in each case is dismissed.1 26. United States v. State of Louisiana. In the course of this analysis it has been stated, perhaps ad nauseam, that a sovereign State cannot be sued without its consent, and the chief purpose of this narrative is to show how such states may give a general consent to suit and the procedure to be followed in the contest of sovereign states with shield and buckler laid aside in a court of justice. The States forming the American Union consented in conference to sue and to be sued, without specifying the subject matter of the suit provided States should be the parties plaintiff and defendant. The United States may sue in the Court of the States, of which it is the agent, and, as has already been seen, in the case of Florida v. Georgia (17 Howard, 478), the United States asked to be heard and to protect its interests, without, however, becoming a formal party to the suit between those States in the Supreme Court; and it will presently be seen that the United States has since, in its character of State, availed itself of the Supreme Court in which to litigate, on behalf of the States whereof it is the agent Question and the trustee, its claim against a State of the Union. Plaintiff it has been and whether therefore may be. Is it or can it be a defendant? Without arguing the matter in this place, as it will be considered later, it is sufficient to quote, for present purposes, three brief extracts from three famous cases: the United States could be sued. In the case of Cohens v. Virginia (6 Wheaton, 264, 411), decided in 1824, Mr. Chief Various judicial Justice Marshall said, speaking for a unanimous court: opinions, The universally received opinion is, that no suit can be commenced or prosecuted 1824-94. against the United States. In the case of Beers v. Arkansas (20 Howard, 527, 529), decided in 1857, his eminent successor, Mr. Chief Justice Taney, said: It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may State of New Hampshire v. State of Louisiana (108 U.S. 76, 91). Sum mary of the facts. A claim against the United States for the prescribe the terms and conditions on which it consents to be sued, and the manner And in the case of Schillinger v. United States (155 U.S. 163, 166), decided in 1894, The United States cannot be sued in their courts without their consent, and in granting such consent Congress has an absolute discretion to specify the cases and contingencies in which the liability of the Government is submitted to the courts for judicial determination. Beyond the letter of such consent, the courts may not go, no matter how beneficial they may deem or in fact might be their possession of a larger jurisdiction over the liabilities of the Government. The case of the United States v. Louisiana (123 U.S. 32), decided in 1887, is one of a class in which the United States has given a general consent to be sued, albeit this class is very select, indeed too select for a democracy. In this the question presented itself whether the United States could be sued by a State of the American Union, although it was admitted that an individual like circumstanced could sue, because a statute of Congress has authorized individuals to maintain an action against the United States in the Court of Claims, in which the United States has consented to be sued, and to obtain a judgement including costs against the United States as against individual litigants. The special facts in the case are not important, as they would justify a judgement against the United States if that body politic could be brought to the bar of justice and be subjected, as any corporation, to the law of the land. But although the question raised in the Court of Claims, and renewed, argued, and debated upon appeal in the Supreme Court, was the question of jurisdiction, it is advisable to recount the facts out of which the case arose, in order that we may, as in all other cases, deal with the concrete rather than the abstract. The State of Louisiana brought action in the Court of Claims against the United States to recover two demands, amounting in the aggregate to $71,385.83. Both of these demands were based upon acts of Congress, the first passed on February 20, 1811, 'to enable the people of Orleans to form a constitution and state government.' In the fifth section of the act the United States, after the first day of January, 1812, pledged 'five per cent. of the net proceeds of the sales of lands of the United States, within her limits', to be applied to laying out and constructing public roads and proceeds levees in the state as the legislature thereof might direct. The five per cent. of the net proceeds of sales of lands of the United States made between July 1, 1882, and June 30, 1886, and due to the State of Louisiana by the United States, as found by the Commissioner of the General Land Office, amounted to $47,530.79.1 of the sale of certain lands. The second demand arose upon the act of Congress of September 28, 1850, ' to enable the State of Arkansas and other States to reclaim the swamp lands within their limits,' and the act of Congress of March 2, 1855, for the relief of purchasers and locators of swamp and overflowed lands.' The first of these two acts granted to the States then forming the Union all the swamp and overflowed lands, made unfit thereby for cultivation, within their limits, which at the time remained unsold '.2 The second required the Secretary of the Interior' to prepare a list of the lands 1 United States v. State of Louisiana (123 U.S. 32, 33). 2 Ibid. (123 U.S. 32, 33). described and transmit the same to the Governor of the State, and at his request to cause a patent to be issued therefor '.1 This duty was, it seems, not discharged, and many of the lands of the kind specified were sold to other parties by the United States. The second act was designed to correct this wrong, and provided that the purchase money of the lands should be paid over to the State upon proof thereof made to the Commissioner of the General Land Office, who found that, on June 30, 1885, there was due from the United States to the State of Louisiana, on account of sales of swamp lands to individuals made prior to March 3, 1857, the sum of $23,855.04. States the statute of It was objected in the Court of Claims that the demand arising upon the latter The acts was barred by the statute of limitations, and that both demands were set off United by 'the unpaid balance of the direct tax levied under the act of August 5, 1861, pleads which was apportioned to the State of Louisiana'. The two demands were admitted by the Government and were not contested in the court below, but they were limita'credited to the State on account upon the claim of the United States against her for the unpaid portion of the direct tax mentioned '.2 The principal objection, however, was that of jurisdiction, on which point paid Mr. Justice Field, speaking for a unanimous court, said : It was, also, objected in the Court of Claims, and the objection is renewed here, that the court had no jurisdiction, under the Constitution and laws of the United States, to hear and determine a cause in which the State is a party in a suit against the United States. This object, therefore, must first be examined; for, if well taken, it will be unnecessary to consider the other questions presented.3 The exact language of the learned Justice has been quoted, instead of paraphrased, 3 Ibid. (123 U.S. 32, 34-5). tions and a set-off for un taxes. Objection taken to the jurisdiction. Juris diction affirmed by the Court. The statute of limita the original jurisdiction of the Supreme Court, where a State is a party, as thus appears, is not in terms made exclusive, there were some differences of opinion among the earlier judges of this court whether this exclusive character did not follow from a proper construction of the article. In a recent case, Ames v. Kansas, III U.S. 449, this question was very fully examined, and the conclusion reached that the original jurisdiction of the Supreme Court, in cases where a State is a party, is not made exclusive by the Constitution, and that it is competent for Congress to authorize suits by a State to be brought in the inferior courts of the United States. In that case, it is true, the action was commenced by the State in one of her own courts, and, on motion of the defendant, was removed to the Circuit Court of the United States, and the question was as to the validity of the removal. The case having arisen under the laws of the United States, it was one of the class which could be thus removed, if the Circuit Court could take jurisdiction of an action in which the State was a party. It was held that the Circuit Court could take jurisdiction of an action of that character, and the removal was sustained.1 But this was not conclusive of the matter, because the judiciary act of 1789 used language which could be invoked as an obstacle in the way of the State; and the party to the suit, and the defendant in this case, was not the State in the ordinary sense of the word, or, if such, was not held to be included in the consent of States to be sued. Therefore, Mr. Justice Field took a further and a final step in the argument, saying: The judiciary act of 1789, it is true, declares that the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature where a State is a party, except between a State and its citizens, or between a State and citizens of other States, or aliens, in which latter cases it shall have original but not exclusive jurisdiction'. This clause, however, cannot have any application to suits against the United States, for such suits were not then authorized by any law of Congress. There could, then, be no controversies of a civil nature against the United States cognizable by any court where a State was a party. The act of March 2, 1875, in extending the jurisdiction of the Circuit Court to all cases arising under the Constitution or laws of the United States, does not exclude any parties from being plaintiffs. Whether the State could thereafter prosecute the United States upon any demand in the Circuit Court, or the Court of Claims, depended only upon the consent of the United States, they not being amenable to suit except by such consent. Having consented to be sued in the Court of Claims, upon any claim founded upon a law of Congress, there is no more reason why the jurisdiction of the court should not be exercised when a State is a party, than when a private person is the suitor. The statute makes no exception of this kind, and this court can create none.2 Having thus swept aside the objection to its jurisdiction on the ground that the State could only sue, if at all, in the Supreme Court, not in an inferior court, and that the United States, suable at the instance of a private individual, was likewise suable at the instance of that artificial person called a State, the Supreme Court was in a position to take up, and to decide upon its merits, the case as made out in the court below which it had before it on appeal. The statute of limitations, interposed as a bar to the suit, gave the court much less trouble, and for obvious reasons, than it gave counsel of the United States in tions not the court below. It is true that, by act of Congress, the Court of Claims cannot applicable. take jurisdiction of a case which it is otherwise competent to receive which had arisen more than six years before filing suit; but the statute of limitations applies 1 United States v. State of Louisiana (123 U.S. 32, 35-6). 2 Ibid. (123 U.S. 32, 36–7). |