Comments of may not be sustained for violation of a right secured by treaty, as well as by contract under any other form. The judiciary is certainly not the department of the government authorized to enforce all rights that may be recognised and secured by treaty. In many instances, these are mere political rights with which the judiciary cannot deal. But when the question relates to a mere right of property, and a proper case can be made between competent parties; it forms a proper subject for judicial inquiry.1 It will be observed, in the course of this narrative, particularly from his dissenting opinion in the case of Florida v. Georgia (17 Howard, 478, 496), decided in 1854, that Mr. Justice Curtis was inclined to interpret very strictly the grant of judicial power in so far as it affected the States, and that, in the opinion to which reference is made, he denied to the United States the right to intervene in the case, and indeed the right to sue a State of the American Union in the Supreme Court of the United States. Yet both before becoming a Justice of the Supreme Court in 1851, and after his resignation from that tribunal in 1857, during which period he very greatly distinguished himself, he was of opinion that a foreign State could sue a State of the American Union in the Supreme Court. In a very carefully prepared essay-it could properly be called a monographMr. B. R. on the debts of the States, published in the North American Review for January 1844, Curtis, Mr. Benjamin R. Curtis, then at the bar, thus stated the suability of a State of the 1844. American Union at the instance of a foreign State : The Constitution, as originally adopted, contained, in Art. III: Sect. 2, the following words: The judicial power shall extend to controversies between a State, or the citizens thereof, and foreign States, citizens, or subjects.' The eleventh article of the amendments declares that 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 any foreign State'. Thus the original provision as to suits against one of the United States by foreign States was allowed to stand. Mr. Chief Justice Marshall [Jay], in his very able opinion in the case of Chisholm v. The State of Georgia, has stated the reason of this provision in such a manner as renders it quite applicable to our present purpose. He says the Constitution contained this provision: because, as every nation is responsible for the conduct of its citizens towards other nations, all questions touching the justice due to foreign nations or people, ought to be ascertained by, and depend on national authority.' There can be no doubt, therefore, that by the very terms of the Constitution a foreign State or sovereign may sue one of the United States in some court of the United States. Nor has the Constitution left it doubtful, or even left it for Congress to provide, which court it shall be; for it contains the following words: In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.2 In the passage immediately succeeding, Mr. Curtis declares it, as incidental to sovereignty, that a State may appear in behalf of its subject or citizen, and that therefore a foreign State may sue a State of the American Union: We conceive also that a foreign State or sovereign may easily be placed in such a condition as to prosecute these claims. It is incident to the sovereign power that it should be able to make itself the owner of such claims. The rules as to the purchase and sale of rights of action which affect individuals are not applicable to the sovereign. The law presumes that the government of a country will not be guilty of champerty 1 Cherokee Nation v. State of Georgia (5 Peters, 1, 58, 59). or maintenance. Under the common law, the king might take an assignment of a debt, and sue therefor in his own name. And we have no doubt that the same law exists in all countries. It seems to follow, then, that if the sovereign should take an assignment of a claim, and sue therefor in the court of a foreign country, the comity and respect due to the foreign sovereign would necessarily prevent the court from inquiring into the causes and motives of the assignment; especially in a country where the common law exists, which makes all debts negotiable between the sovereign and a subject or citizen. And if this motive were inquired into, it would appear that the foreign sovereign had taken the assignment merely to discharge a duty to his subjects by affording to them a remedy for a supposed wrong.1 The propriety of such action, the rôle which an international court can properly assume, and the services which it can render are thus stated by this distinguished jurist : Certainly it would not be a subject of complaint or regret on our part that this course should be taken, and that the foreign sovereign should submit the question to the decision of our own highest tribunal, instead of resorting directly to negotiation. In the event of such a thing becoming necessary, we should look upon an application to the Supreme Court of the United States as not only practicable but desirable, and we should feel thankful for the existence of that principle in the public law, and that wise provision in our own Constitution, which enable us to ask foreigners to seek for justice in that high tribunal which was created to establish it,—a tribunal known to the world as elevated far above all State biases and prejudices, whose members come together from the North and the South, from the East and the West, across distances wider than half of Europe, and listen to sovereign States as they contest their claims to territory and jurisdiction; a tribunal which sits in judgment on the acts of the legislature of the nation, and decrees them to be valid or void; a tribunal which is our own ark of safety, and to which offended Europe may come confidently and obtain such justice as war and reprisals never gave and never can give.2 Curtis ad In 1860 Mr. Benjamin R. Curtis, then again at the bar after an experience of Opinion six years upon the supreme bench of the States, was called upon in the practice of of Mr. his profession to advise a client, none other than Great Britain, whether it could, as vising Great a foreign State in behalf of the Cayuga Indians, residing in Canada, implead the Britain, State of New York in the Supreme Court of the United States in order to secure from 1860. that State the payment of an annuity, to which Great Britain believed that its Indian dependants were entitled. Mr. Curtis, in the first part of his opinion, considered the case of Cherokee Nation v. Georgia (5 Peters, 1), giving his assent to the doctrine of the Court, and so advising his client. After having decided that the Cayuga Indians could not maintain a suit in their own name because of this case, he asks, whether. a suit may not be brought in the Supreme Court of the United States in the name of her Majesty the Queen of Great Britain, &c., in behalf of the Cayugas, to enforce their claim.' And he thus answers the question, acting under a sense of professional responsibility: Upon a question some of the elements of which are of novel impression, it would not become me to express a confident opinion. But after an attentive consideration I think such a suit may be maintained. The right to receive an annual payment, in consideration for a transfer of their lands, belongs to a tribe or nation of Indians, who occupy a portion of her Majesty's territory, and who, while they are, for some purposes, a separate political community, 1 George Ticknor Curtis, The Life and Writings of B. R. Curtis, vol. ii, pp. 146–7. 2 Ibid., p. 147. Service of appear- York. Motion of New are also in a state of pupilage, resembling the relation of a ward to a guardian. Their rights and claims are under the care and protection of the Crown, upon principles, and by reason of causes, which have been long in operation in the United States, and which must be felt and acknowledged here. And if the sovereign should think fit to act as their trustee, in enforcing a claim of this nature in a court of justice, I believe the right to do so would be acknowledged. In case such a course should be deemed suitable and proper, it would be important for the Cayugas, acting through their recognized and competent authorities, to prefer a petition to the Crown to take cognizance of their claims, and act in their behalf in reference thereto; and to this end, that a formal transfer should be made to the Crown of the agreements between the State of New York and the Cayuga nation upon which the present claims depend.1 And twelve years later, Mr. Curtis thus forcibly and pointedly restated his views in a course of lectures delivered in the Harvard Law School on the jurisdiction of the United States Courts: Therefore, this eleventh amendment withdraws the States from any liability to a suit by an individual, whether a citizen of another State or a citizen of a foreign State, but it leaves the State to be sued by another State, and it leaves the State also to be sued by a foreign sovereign. A foreign citizen or subject cannot sue a State; but a foreign sovereign, as, for instance, the Queen of England, may bring a suit against the State of Massachusetts, or any other State in the Union, in the Supreme Court of the United States.2 6. State of New Jersey v. State of New York. The subpoena in the first phase of the case of New Jersey v. New York was regularly served, and, at the expiration of two months, Mr. Wirt, on behalf of New Jersey, appeared before the Supreme Court, set forth the facts of service and nonappearance, and proposed at the end of his argument in support of his motion that 'the court direct a rule to be entered that the bill be taken pro confesso, unless the party against whom it is filed appear and answer before the rule day in August next ; and if they do not, that the cause be set down for a final hearing at the next term of this court, on such proofs as the complainants may exhibit.' 3 In support of his motion, Mr. Wirt called attention to the seventeenth section of the Judiciary Act of 1789, authorizing the Court to make and establish all necessary rules for the conduct of its business, although the Court had, in his opinion, such power without the aid of that provision of the law. Mr. Wirt cited, as applicable to the matter in hand, the seventh rule of the Supreme Court, made in the August term, 1791, the text of which is as follows: The Chief Justice, in answer to the motion of the attorney-general, informs him and the bar, that this court consider the practice of the court of king's bench and of chancery, in England, as affording outlines for the practice of this court; and that they will, from time to time, make such alterations therein as circumstances may render necessary.4 1 George Ticknor Curtis, The Life and Writings of B. R. Curtis, vol. i, pp. 283-4. 2 Curtis, Jurisdiction of the United States Courts, 2nd ed., pp. 16-17. 3 State of New Jersey v. State of New York (5 Peters, 284, 286). He also called attention to the rule of the court previously quoted, made in 1796, by virtue of which the complainant was at liberty to proceed ex parte if after service and the expiration of the return date the defendant had not appeared. con The learned counsel, therefore, maintained that according to the practice in English chancery and the rule of the court permitting the complainant to proceed ex parte, practice the State of New Jersey could properly proceed to a hearing. He was apparently sidered. worried by the thought of compelling the appearance of a State, as English practice in such cases would not be proper in the case of a defendant State. He found consolation in the fact that the bill was to quiet title and was therefore a bill of peace, and that the rule permitting the complainant to proceed ex parte considered the defendant, when served with process, in the same position as if it had appeared. The difficulty which next confronted him was the step to be taken when all process to compel an appearance was exhausted, and, after consideration of English practice, which permitted the complainant to take the bill pro confesso, when the process to compel appearance was exhausted, and after stating that his client, the State of New Jersey, stood in this position, he expressed the need of a further step, but referred it to the consideration of the court, saying: Something is now to be done in this case; and it is for the court to determine, what that may be. If the court desire it, it is fully competent to them to make any new rule relative to the future proceedings in the case.1 While recognizing it to be the prerogative of the court to determine this matter, he felt it his duty to place his services at the disposal of the tribunal and to aid it by way of suggestion. Thus, he said: In the court of chancery in England, the party could take a decree, pro confesso, and consider it as final. But this is not the wish of the complainant. It is desired that the proceedings should be carried on with the utmost respect to the other party ; and the wish of the state of New Jersey is to have an examination of the case, and a final decree, after such an examination.2 of the ting New Jersey to proceed On this state of the facts, the case was submitted to the court, which rendered Decision its opinion per Marshall, Chief Justice. After quoting the provision of the Constitu- Court tion, extending the judicial power to controversies between two or more States, and permitthat the Supreme Court shall have jurisdiction of those in which a State shall be a party, and after stating that 'Congress has passed no act for the special purpose of prescribing the mode of proceeding in suits instituted against a state, or in any suit in which the supreme court is to exercise the original jurisdiction conferred by the constitution', the Chief Justice took up and examined the decisions of the Court in so far as they might be considered precedents or as throwing light upon the procedure to be followed. After citing the suits against States, all of which, before the case of New York v. Connecticut (4 Dallas, 1-6), were suits brought by individuals of the States against States of the Union, a right withdrawn by the 11th Amendment, he thus stated the rule of practice derived from those cases and to be followed in the one at hand : It has, then, been settled by our predecessors, on great deliberation, that this court may exercise its original jurisdiction in suits against a state, under the authority 1 State of New Jersey v. State of New York (5 Peters, 284, 286). 2 Ibid. (5 Peters, 284, 286). 1569.24 I ex parte. Third phase. Discus sion of conferred by the constitution and existing acts of congress. The rule respecting the process, the persons on whom it is to be served, and the time of service, are fixed. The course of the court on the failure of the state to appear, after the due service of process, has been also prescribed. In this case, the subpoena has been served as is required by the rule. The complainant according to the practice of the court, and according to the general order made in the case of Grayson v. Commonwealth of Virginia, has a right to proceed ex parte; and the court will make an order to that effect, that the cause may be prepared for a final hearing.1 Applying the procedure thus outlined to the case of New Jersey v. New York, the Chief Justice said: If upon being served with a copy of such order, the defendant shall still fail to appear or to show cause to the contrary, this court will, as soon thereafter as the cause shall be prepared by the complainant, proceed to a final hearing and decision thereof.2 The Chief Justice, however, was unwilling to go beyond the precedents, and, recognizing as did Mr. Wirt the difference between an individual on the one hand and the State on the other, he was unwilling to follow the procedure in chancery, which, on default of the defendant, would take the bill pro confesso, and enter a decree in accordance with the prayer of the bill. He was likewise unwilling to state in advance of the case the procedure to be followed after the hearing, and, that there should be no doubt upon the subject, he gave the reason: But inasmuch as no final decree has been pronounced or judgment rendered in any suit heretofore instituted in this court against a state; the question of proceeding to a final decree will be considered as not conclusively settled, until the cause shall come on to be heard in chief.3 The Chief Justice, however, expressed the determination of the Court to execute the power vested in it in suits between States, as appears from the following order entered in this phase of the case: The subpoena in this cause having been returned executed sixty days before the return day thereof, and the defendant having failed to appear, it is, on motion of the complainant, decreed and ordered, that the complainant be at liberty to proceed ex parte; and it is further decreed and ordered, that unless the defendant, being served with a copy of this decree sixty days before the ensuing August term of this court, shall appear on the second day of the next January term thereof, and answer the bill of the complainant, this court will proceed to hear the cause on the part of the complainant, and to decree on the matter of the said bill.4 7. State of New Jersey v. State of New York. The case of New Jersey v. New York entered upon its third and final phase in so far as the Supreme Court is concerned. Technically, New York did not appear, that is to say, the Attorney-General of the State did not appear, nor did counsel what con- appear on behalf of the State, authorized to represent it in the sense in which counsel appear represented New Jersey. A demurrer was presented on behalf of the AttorneyGeneral of New York, and Mr. Beardsley, attorney and counsellor of that State, stitutes ance'. 1 State of New Jersey v. State of New York (5 Peters, 284, 290–1). |