of an inter not be vexed for light or trifling reasons; the agents of the people and of the body politic, which we call the State, should be held to a strict accountability. The court of the twelve or thirteen struggling States is to-day the court of forty-eight States of imperial extent and embracing wellnigh a continent. It is still, however, the court of justice of the fathers, administering the law in its spirit as well as in its letter, laid down by them, without fear or favour, without respect of persons or of States. The Su- And likewise in the matter of the 11th amendment, it has, it is believed, justified not preme only the hopes of its framers but has shown itself to be a safe and a sure guide, the Court the prototype veritable prototype of that larger Court whereof the Society of Nations stands in need, and with which it must one day be endowed, if the disputes of a justiciable national character, determined by the Court to be such, are to be settled by that due process Court. of law which carries, and which alone carries, in its train peace between nations. There is in many quarters a desire for a Court of the Nations which shall assume jurisdiction of commercial disputes to be brought before it by citizens or subjects against the nations. It is believed that the Nations forming the society thereof will be as unwilling as the States forming the judicial union of the United States have been unwilling to appear in court and to litigate a case at the behest of a foreign citizen or subject. The origin, the nature, the history, and the experience of the 11th amendment are enlightening. Should the nations consent to be sued in a Court of their making by the citizens or subjects of other States, they would, it is believed, wisely limit their appearance to suits brought with the approval of the responsible authorities of the states whereof the suitors are citizens or subjects. In this way justice would be done, but only after the deliberation required in matters international ; for in the Court of the Society, as well as in the Court of lesser bodies, de minimis non curat lex. 91 IV. QUESTIONS OF JURISDICTION, PROCEDURE, APPEARANCE OF DEFENDANT STATE. THE FIRST FINAL JUDGEMENT. I. State of New York v. State of Connecticut. The opening lines of the report in this case of first impression read: The State of New-York, one of the United States of America, by Josiah Ogden A bounHoffman, the attorney-general of the said state,' filed this bill in consequence of the dary disrejection of the motion to grant writs of certiorari, for the removal of Fowler et al, v. pute arisLindsey et al. and Fowler et al. v. Miller (3 Dall. 411) from the Circuit Court of Con- ing out of private necticut into the Supreme Court. The plaintiffs in those suits were made defendants litigation to the present bill; and the complainant, after setting forth the title of New-York in Fowler to the lands in question, prayed (inter alia) for an injunction against them. The v. Lindnotices to the defendants, that the injunction would be moved for, were delivered on the 25th and 26th of July; but, on the 6th of August, Ingersoll, who appeared for the individuals, though not for the state, referred to the act of congress, which provides, that' no writ of injunction shall be granted, in any case, without reasonable previous notice to the adverse party, or his attorney of the time and place of moving for the same:' 2 vol. 228, s. 5. Swift's edit. And he contended, that reasonable notice had not been given in this case. sey. land to different The facts in the case were, that a strip of land in controversy was claimed by Each New York and by Connecticut, and each of these States had made grants to various State had granted persons of the territory in dispute, who were the plaintiffs and defendants in an the same action tried in the Circuit Court of Connecticut referred to in the quotation. The certiorari was refused because the State was not a party to the record, and the injunction, as will be seen, was denied in this case because the State was not interested in the ejectments. These cases should first be considered, inasmuch as it is because of them that the first suit was brought between the States of the American Union. The suits in question, in the nature of ejectments, were begun in the Circuit Court for the district of Connecticut to recover a tract of land forming a part of the Connecticut Gore, which that State had granted to two citizens thereof, who in turn conveyed it to the plaintiffs. The defendants, inhabitants of the State of New York, alleged that the lands for which the suits were brought lay in the County of Steuben in that State, and that therefore only the Circuit Court for the district of New York or the courts of that State could take cognizance of the actions. In reply, the plaintiffs alleged that the premises lay in the State of Connecticut, and the issue was joined. persons. tains that are the real It seemed to the counsel and it likewise appeared to the court that the suits, Counsel virtually in fact if not in name, were between the States of Connecticut and New mainYork, and the counsel appearing for the parties plaintiff and defendant argued the the States case on that theory; but the judges of the Supreme Court participating in the case did not incline to this view. As in the case of Chisholm v. Georgia (2 Dallas, 419) each parties. judge delivered his opinion seriatim, and it will be observed from the report that the Chief Justice, Oliver Ellsworth, refused to take part in the decision because of the interest of Connecticut in the suit, whereof he was a citizen, and Justices Chase and Decision of the Court that the not the parties. Iredell, then members of the court, were absent, as the report shows,' on account of indisposition.' In deciding the case, Mr. Justice Washington, a sound judge and a nephew of the first President, said: Without entering into a critical examination of the Constitution and laws, in States are relation to the jurisdiction of the Supreme Court, I lay down the following as a safe rule: That a case which belongs to the jurisdiction of the Supreme Court, on account of the interest that a state has in the controversy, must be a case in which a State is either nominally, or substantially, the party. It is not sufficient, that a State may be consequentially affected.1 After laying down this principle, which goes to the root of the matter, and which is the law of the United States to-day as it was when Mr. Justice Washington first declared it to be so, the learned Justice thus proceeded : It is not contended, that the States are nominally the parties; nor do I think that they can be regarded as substantially the parties to the suits: nay, it appears to me, that they are not even interested, or affected. They have a right either to the soil or to the jurisdiction. If they have the right of soil, they may contest it, at any time, in this Court, notwithstanding a decision in the present suits; and though they may have parted with the right of soil, still the right of jurisdiction is unimpaired. A decision, as to the former object, between individual Citizens, can never affect the right of the State as to the latter object: it is res inter alios acta.2 The question seemed so important to Mr. Justice Washington, that he indulged in illustrations, which have lost neither their point nor their applicability with time. Thus, he said: For, suppose the Jury in some cases should find in favor of the title under New-York; and, in others, they should find in favor of the title under Connecticut, how would this decide the right of jurisdiction? And on what principle can private citizens, in the litigation of their private claims, be competent to investigate, determine and fix, the important rights of sovereignty ? 3 As was the custom of the day, the learned judge proceeds to answer his own questions, and in so doing he illuminated the subject and suggested a practice since followed by the august tribunal of which he was a member : The question of jurisdiction remaining, therefore, unaffected by the proceedings in these suits, is there no other mode by which it may be tried? I will not say, that a state could sue at law for such an incorporeal right, as that of sovereignty and jurisdiction; but even if a Court of law would not afford a remedy, I can see no reason why a remedy should not be obtained in a Court of Equity. The State of New-York might, I think, file a bill against the State of Connecticut, praying to be quieted as to the boundaries of the disputed territory; and this Court, in order to effectuate justice, might appoint commissioners to ascertain and report those boundaries. There being no redress at law, would be a sufficient reason for the interposition of the equitable powers of the Court; since, it is monstrous, to talk of existing rights, without applying correspondent remedies.1 Mr. Justice Patterson, who was not a member of the Court when the Chisholm case was tried, stated the reason why counsel wished to have the record certified to the Supreme Court, saying on this point: The argument proceeds on the ground of removing the cause into this Court, as having exclusive jurisdiction of it, because it is a controversy between States.5 1 Fowler v. Lindsey (3 Dallas, 411, 412). 3 Ibid. (3 Dallas, 411, 412). On this phase of the subject the learned justice expressed the following opinion: The constitution of the United States, and the act of Congress, although the phraseology be somewhat different, may be construed in perfect conformity with each other. The present is a controversy between individuals respecting their right of title to a particular tract of land, and cannot be extended to third parties or states. Its decision will not affect the State of Connecticut or New-York; because neither of them is before the Court, nor is it possible to bring either of them, as a party, before the Court, in the present action. The state, as such, is not before us.1 Mr. Justice Cushing, an original member of the court, who participated in the Chisholm case, reiterates, in the opening sentence of his opinion, his view in that case, saying: These motions are to be determined, rather by the Constitution and the laws made under it, than by any remote analogies drawn from English practice.2 After this blunt statement, he continues: Both by the Constitution and the judicial act, the Supreme Court has original jurisdiction, where a State is a party. In this case, the State does not appear to be a party, by any thing on the record. It is a controversy or suit between private citizens only; an action of ejectment, in which the defendant pleads to the jurisdiction, that the land lies in the State of New-York, and issue is taken on that fact. Whether the land lies in New-York or Connecticut, does not appear to affect the right or title to the land in question. The right of jurisdiction and the right of soil may depend on very different words, charters and foundations. A decision of that issue, can only determine the controversy as between the private citizens, who are parties to the suit, and the event only give the land to the Plaintiff or Defendant; but could have no controuling influence over the line of jurisdiction; with respect to which, if either State has a contest with the other, or with individuals, the State has its remedy, I suppose, under the Constitution and the laws, by proper application, but not in this way; for she is not a party to the suit.3 for certior ari di s The court therefore dismissed the motions, on the ground that the cases could Motions not be removed to the Supreme Court on the plea of original jurisdiction, and on the further ground that the record would only be certified to the Supreme Court when the misse d. superior court had jurisdiction of the case, as it did not on the pleadings appear to have, and when a fair and impartial trial could not otherwise be obtained. tion claimed To return to the case of New York v. Connecticut. Having failed to have the Injuncrecord certified to the Supreme Court, the State of New York filed its bill in equity in the Supreme Court against the State of Connecticut, in order to enjoin the parties by New York to to the suits of Fowler v. Lindsey and Fowler v. Miller from proceeding with those stay the cases, on the ground that the States of New York and Connecticut were the parties private in interest, and, because of that fact, the question at issue between them could only suits. be determined in the Supreme Court, which, by the Constitution, possessed original jurisdiction in such matters. This phase of the question is purely technical and can be easily disposed of. To the objection taken that the notice for the injunction was not reasonable the Court said, by the mouth of Ellsworth, Chief Justice: The prohibition contained in the statute, that writs of injunction shall not be granted, without reasonable notice to the adverse party or his attorney, extends to Ibid. (3 Dallas, 411, 414). 1 Fowler v. Lindsey (3 Dallas, 411, 413-14). Ibid. (3 Dallas, 411, 414-15). injunctions granted by the Supreme Court or the Circuit Court, as well as to those that may be granted by a single Judge. The design and effect, however, of injunctions, must render a shorter notice, reasonable notice, in the case of an application to a Court, than would be so construed, in most cases of an application to a single Judge: and until a general rule shall be settled, the particular circumstances of each case must also be regarded. Circumstanced as the present case is, the notice, which has been given is, in the opinion of the Court, sufficient, as it respects the parties against whom an injunction is prayed.1 This ruling of the court, however, merely decided that the notice to the adverse party of the motion was reasonable and sufficient. It did not affect the merits of the case, for counsel and judge were devising machinery for the conduct of suits between States. Argu New York 2. State of New York v. State of Connecticut. (4 Dallas, 3) 1799. A second phase of the case which should be separately entitled, but is not by the reporter, involved the question not merely whether reasonable notice had been. given; but supposing, as decided by the court, that the notice was reasonable, should the injunction prayed for be issued at the instance of New York against Connecticut ? The bill filed by the State on behalf of New York contained an historical account of ments for the title to the soil and jurisdiction of the tract of land in dispute. It set forth the agreements of November 28, 1683, between the two States on this subject, and it prayed a discovery, relief, and injunction to stay the proceeding in the Connecticut ejectment'; that is to say, the cases of Fowler v. Lindsey and Fowler v. Miller. The State of Connecticut, however, did not appear, and the question of an injunction was the only one argued. Attorney-General Hoffman, who had represented the State of New York in the previous phase, again appeared for his State, and, after stating the facts, indulged in a line of argument common in cases between private suitors. in support of the claim for an in junction. In the first place, he called attention to the agreement of November 28, 1683, between the States, admitting that the tracts of land in question belonged to New York; that Connecticut has since undertaken to grant a part of it to the plaintiffs in the ejectments'; that it was necessary to make the plaintiffs parties to the present suit; that plaintiffs, suing in Connecticut, under grants from that State, possessed the legal title and would necessarily prevail in a court of law; and that all parties in interest should be made parties to the suit in order that the specific performance of the agreement decreed against Connecticut should bind all persons affected by the decree. In the next place, he urged that the injunction would prevent a multiplicity of suits, inasmuch as, by the trial of this one case, the question of title would be settled for all parties; otherwise, each party in interest might bring his action in a court of law, and only the parties to it would be bound by the judgement. It was, therefore, in his opinion, emphatically a bill of peace. In the third place, it was a bill for the discovery of title; and finally, it was |