Ассер the Su preme Court of the 11th western world, will see to it that the judgements of the tribunal of the nations are carried into effect, if only a state can recognize that it is the creature of law, and that the happiness of its people depends upon the administration of justice in the relations of states, as in the relations of individuals. In the American system, therefore, it was as certain as it was natural that the tance by Supreme Court would be called upon to interpret the true meaning and import of the 11th amendment; and it was no doubt a relief to the statesmen of that day, as it is a source of hope to us who believe in an international tribunal, that the Amend- justices of that court interpreted the amendment without bitterness, without passion, without the expression of feeling, even although it was couched in ungracious terms, and deprived the court of jurisdiction in a class of cases which four out of the five justices had sought to entertain. An expectant public did not have long to wait. The cases were at hand, and the court justified the expectations of its partisans. ment. Cases on Procedure. Grayson v. Vir ginia But before this happened, two further cases, this time in equity, were decided, in which the procedure was devised, which has since been followed by the Supreme Court, in suits against States. The first was that of Grayson v. Virginia (3 Dallas, 320), decided in 1796, in which the court was asked to issue a distringas to compel the State to enter an appearance, Lewis for the plaintiff arguing from the analogy between a State and other bodies corporate, that this was the proper mode of proceeding'. The Court, however, was in doubt, and well it might be, 'whether the remedy to compel the appearance of a State, should be furnished by the Court itself, or by the Legislature ', and accordingly postponed its decision. At the next term Lewis for the plaintiff argued that the Court was competent to furnish all the necessary means for effectuating its own jurisdiction ', but the Court, warned by the Chisholm case, moved more slowly, and cautiously confined itself to the narrow question of the proceeding before it, without venturing to decide the broader question which counsel pressed upon it. Also, Oliver Ellsworth was now Chief Justice, who, in the Federal Convention, had stood for the rights of the States as such and had with great difficulty brought about the compromise between the large and the small States, by virtue of which the more perfect Union was formed. In the first place, the Chief Justice, speaking for the Court, examined the different branches of its jurisdiction, saying: 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 authorised 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 controul, of the Legislature.1 Therefore, the court ordered: I. . . ., 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. 2. ..., 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.1 Upon this announcement from the bench of the rules to be followed in suits against States, whether of law or equity, counsel for the plaintiff very properly withdrew his motion for a distringas and prayed that an alias subpoena might be awarded, which was accordingly done', on the ground that, although a subpoena had been issued in this case, the rule announced by the court could only operate in the future. In this very brief case, of little more than a page in the original report, we have the nature of the process to be issued in suits at common law and in equity against States, which has been followed from that day to this. South The second case, likewise on a bill in equity, was that of Huger et al. v. State of Huger v. South Carolina (3 Dallas, 339), decided in 1797, which determined the persons upon Carolina whom process should be served, just as the Grayson case determined the nature and (1797). form of the process to secure appearance. From the facts of the case it appeared that the subpoena had issued in this cause, that the affidavit of service was read, setting forth that a copy had been delivered to the attorney-general, and that a copy had been left at the Governor's house, where the original had, likewise, been shewn to the Secretary of the State.' 2 On this state of facts, Justices Iredell and Chase doubted whether showing the original to the Secretary of State would have been sufficient service' without leaving a copy at the Governor's house', but they agreed with the rest of THE COURT ́in deeming the service, under the present circumstances, to be sufficient in strictness of construction, as well as upon principle'. It was also decided that, upon proof of service of subpoena, the plaintiff was entitled 'to proceed ex parte' in the absence of the defendant, and accordingly commissions 'were issued to take examination of witnesses in several of the States.3 The decision in Huger v. South Carolina is even shorter than that in Grayson v. Virginia, as it consists of but three short paragraphs. Yet it determines the persons upon whom service can be made in behalf of a State, the sufficiency of service, and that, upon proof of service made in accordance with the rules of court, the plaintiff may proceed ex parte in the absence of the defendant State, to lay the evidence before the court necessary to support a judgement. As in the Grayson case, so in the Huger case, the procedure laid down has been followed from that day to this. In 1791 Vanstophorst and others sued the State of Maryland (2 Dallas, 401) in the Supreme Court of the United States. The facts of the case are wanting, but from the minutes of the Court it appears that the marshal thereof had, in the presence of witnesses, served a copy of the summons upon the governor, executive council, and attorney-general of the State 1 Grayson v. State of Virginia (3 Dallas, 320-1). 2 Huger et al. v. State of South Carolina (3 Dallas, 339-40). 3 Ibid. (3 Dallas, 339, 341-2). The 11th Amendment held applicable to pending of Maryland. Curiously enough, the jurisdiction of the Supreme Court was not contested by Luther Martin, the Attorney-General of the State, who had stood in the Federal Convention as a bulwark against any and every encroachment upon the rights of the States, and, upon motion of Attorney-General Randolph, who appeared for the plaintiffs, Maryland was ordered to plead within two months. Nor did Martin oppose Randolph's motion to appoint a commission to examine witnesses in Holland. In any event, the case appears to have been discontinued upon the agreement of each of the litigating parties to pay its costs. The right, therefore, of a State of the Union to refuse to appear as a party defendant or to take part in proceedings against it in the Supreme Court was not involved. But these questions were sure to arise, and as a matter of fact they arose in the first instance in questions involving the suability of States at the hands of private suitors. The President, in his message to Congress dated January 8, 1798, proclaimed the adoption of the 11th amendment, and in the first term of court thereafter, in February of that year, the court took up and considered the case of Hollingsworth v. Virginia similar to that of Chisholm v. Georgia, in that Hollingsworth, a citizen suits in of a State other than Virginia, had sued that State in the Court of the States. The Hollings- question is stated sufficiently by the reporter and the decision of the Court itself, Virginia without indulging in introduction or comment. First, as to the statement of the (1798). case contained in the official reports: worth v. The decision of the Court, in the case of Chisholm versus Georgia Ex'or. (2 Dall. 419), produced a proposition in Congress, for amending the Constitution of the United States, according to the following terms: The judicial power of the United States shall not be construed to extend to any suit in law and equity, commenced or prosecuted against one of the United States, by citizens of another state, or by citizens or subjects of any foreign state.' The proposition being now adopted by the constitutional number of States, Lee, Attorney-General, submitted this question to the Court-whether the amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another State ? 1 As to the decision of the court: THE COURT, on the day succeeding the argument, delivered a unanimous opinion, that the amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a state was sued by the citizens of another state, or by citizens or subjects of any foreign state.2 This solemn and unanimous judgement of the Court settled the question, in so far as suits falling within its exact terms were concerned; but cases were sure to arise, and they have frequently arisen, which did not fall within the letter, and yet seemed to do injustice to the spirit of the amendment. Attempts have been made from time to time by citizens and States to circumvent the amendment, but these attempts have invariably failed, except where the State has shown that the case is such that it might sue under the other clause of the Constitution vesting the Supreme Attempts Court with original jurisdiction of suits between States as such. These attempts may be conveniently grouped under the following headings: to evade the Amendment classified. 1. Suits filed by States as such against States but in behalf of their citizens, not in their own behalf. 2. Suits in which the State has obtained legal title to the property in question, and sues, therefore, in its own name. 3. Suits filed in a Court of the United States by a citizen against his own State. 4. Suits filed against officers or boards of States in order, through them, to reach and to control the action of the State. Each of these will be considered in turn, with such comment as seems to be advisable, and at the conclusion of the discussion the situation will be stated in summary form created by the amendment as interpreted by the Supreme Court in the cases decided by it in the performance of its constitutional duties. III. ATTEMPTS BY CITIZENS OF STATES TO BRING ACTION AGAINST I. SUITS FILED BY STATES AS SUCH AGAINST STATES BUT IN BEHALF OF THEIR 1. Suits filed by States on behalf of citizens. their New Hampshire and v. ana The cases to be discussed under this heading are two in number: the suits of New Hampshire and New York against Louisiana (108 U.S., 76) decided in 1883. As they involved one and the same question and the same defendant, they were considered by the court together, and they will be so considered in this connexion. The facts, for present purposes, are very simple, and can be briefly stated. On New York July 18, 1879, the State of New Hampshire passed an act authorizing any citizen of the V. Louisistate owning a claim against any of the United States of America, arising upon a (1883). written obligation to pay money issued by such State, to assign the obligation for the payment of money, if due and unpaid, to the State of New Hampshire; directing an examination of such claim to be made by the attorney-general of the state and to bring action in the Supreme Court of the United States in the name of the State of New Hampshire against the State whose written obligation to a citizen of New Hampshire is outstanding, due and unpaid. The assignor of such claim was to be associated with the attorney-general in the prosecution of the case, should he so desire, was to pay all the expenses incurred by the state, and was to receive the share to which he should be entitled in case the suit was successful, after deducting therefrom the expenses to which the attorney-general might have been put in the suit. The act of New York of May 15, 1880, was similar to, if not identical with the New Hampshire statute and need not be further referred to. On this set of facts the case, one of a very great importance, was presented, with great clearness and fullness, to the Court as became its importance, and was decided by that tribunal in the October term of 1882. It is to be borne in mind, as it cannot be too often stated, that permission has to be obtained even by a State from the Supreme Court to file a bill or begin an action against a State of the American Union. This is necessary for several reasons, one of which is that it is a very serious matter to summon a State before the bar of a Court. It is true that the State has consented to be sued once and for all by ratifying the Constitution or by being admitted a member of the Union in accordance with the terms of the Constitution; but a suit is in derogation of the powers of the State, and therefore it is not to be vexed by a suit for light or trivial causes. Another reason Judge ment of the Court against tiffs. is that the Supreme Court, being a body of limited jurisdiction, must, before assuming jurisdiction, satisfy itself that the case falls within the grant of judicial power with which it is vested. Therefore in this case the question of jurisdiction met the Court as in all such cases upon the threshold, and in each case the bill was dismissed. Mr. Chief Justice Waite delivered the unanimous judgement of the Court in an illuminating opinion, to be expected of one who had appeared on behalf of his government before the Geneva Tribunal and who owed the Chief Justiceship to the ability the plain- displayed by him in the conduct of the case of the United States. The Chief Justice considered the case not merely as one arising under the Constitution and as covered by the 11th amendment, but in its larger and international bearings distinguishing the State of the Union of the United States from the Nation of the Society of Nations, and thus giving to his opinion and the opinion of the Court a larger interest than it would otherwise possess. History of the contro versy reviewed by Chief Justice Waite. The Chief Justice properly and naturally stated that the first question to be settled was whether the Court might accept jurisdiction of the suits. After quoting the appropriate clause of the Constitution referring to controversies between two or more States' and' between a State and a citizen of another State', and referring to the provision that the Supreme Court shall have original jurisdiction in cases in which a State shall be a party, and finally quoting the material portion of Section 13 of the Judicial Act of 1789, which put these clauses of the Constitution into effect, he made a careful analysis of the case of Chisholm v. Georgia, and quoted portions of the opinions of Mr. Justice Wilson and of Chief Justice Jay. He called attention to the opening remark of Attorney-General Randolph in his argument, that he did not want the remonstrance of Georgia to satisfy him that the motion which he had made was unpopular, and that before the remonstrance was read another state, whose will would always be dear to him, had likewise condemned the bringing of the suit. Chief Justice Waite next called attention to the discussions which followed the announcement of the judgement in that case, saying: Prior to this decision the public discussions had been confined to the power of the court, under the Constitution, to entertain a suit in favor of a citizen against a State; many of the leading members of the convention arguing, with great force, against it. As soon as the decision was announced, steps were taken to obtain an amendment of the Constitution withdrawing jurisdiction. About the time the judgment was rendered, another suit was begun against Massachusetts, and process served on John Hancock, the governor. This led to the convening of the general court of that commonwealth, which passed resolutions instructing the senators and requesting the members of the House of Representatives from the State' to adopt the most speedy and effectual measures in their power to obtain such amendments in the Constitution of the United States as will remove any clause or articles of the said Constitution, which can be construed to imply or justify a decision that a State is compellable to answer in any suit by an individual or individuals in any courts of the United States'. Other States also took active measures in the same direction, and, soon after the next Congress came together, the eleventh amendment to the Constitution was proposed, and afterwards fatified by the requisite number of States, so as to go into effect on the 8th of January, 1798.1 By virtue of this amendment the actual owners of the bonds and coupons for which New Hampshire and New York appeared, could not prosecute the suits in |