the United States, and therefore not within the terms of the eleventh amendment, the chief justice discussed the case upon the basis of the non-suability of the State. In United States v. Lee,1 Justice Miller said: "It is obvious that, in our system of jurisprudence, the principle is as applicable to each of the States as it is to the United States." And Justice Gray declared in the same case: "The decision in Chisholm v. Georgia was based on a construction of the words of the constitution. . . . That construction was set aside by the eleventh amendment." In Poindexter v. Greenhow, the court discussed all the cases upon the basis of non-suability of a State, although in the title case the parties were both citizens of Virginia. And in his dissenting opinion, concurred in by three other justices, Justice Bradley expressly took the ground that, although the eleventh amendment does not apply to suits against a State by its own citizens, it would be absurd to maintain such liability.

In Hans v. Louisiana,3 the question came squarely before the supreme court, on appeal from a decision of the United States circuit court, dismissing a suit brought, on a federal ground, by a citizen of Louisiana against the State of Louisiana. The court unanimously affirmed the decision below. Justice Bradley, speaking for the court, said: “Adhering to the mere letter, it might be so; and so, in fact, the court held in Chisholm v. Georgia; but looking at the subject as Hamilton did, and as Justice Iredell did, in the light of history and experience and the established order of things, the views of the latter were clearly right-as the people of the United States in their sovereign capacity subsequently decided." That the principle of immunity applied to the States, he seems not to have doubted; and the eleventh amendment he regarded as having established a rule of construction for one clause that ought to be applied also to other similar clauses.

1106 U. S. 196.

2 114 U. S. 270.

3

134 U. S. 1.

Reaffirmed in North Carolina v. Temple, 134 U. S. 22.

Justice Harlan expressed his disapproval of the criticism. of Chisholm v. Georgia. His opinion, it seems, however, was simply that literal construction was proper at that time, and not that the principle of immunity does not naturally apply to the States; for in United States v. Texas,1 he said of Hans v. Louisiana: "That case, and others in this court relating to the suability of States, proceeded upon the broad ground that it is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent." It may be said that the decision in Chisholm v. Georgia, in favor of literal construction of the constitution as it then stood, seems, also, to be approved by Chief Justice Marshall in Cohens v. Virginia, in marked inconsistency with his assurances in the Virginia convention. In New Hampshire v. Louisiana,2 Chief Justice Waite used the fact that a direct remedy was given by the original constitution to citizens of one State against another State, as an argument against allowing the indirect remedy through the action of their State in their behalf.

3

In Smith v. Reeves, the principle of Hans v. Louisiana was applied to exclude from the general right of a corporation of the United States to bring suits in the courts of the United States, suits against a State. In Governor of Georgia v. Madrazo, Justice Johnson, dissenting, held, and Chief Justice Marshall noticed the objection without ruling upon it, that the eleventh amendment applies only to suits in law and equity, and that the immunity of a State does not extend to suits in admiralty. In view of the subsequent attitude of the court, in favor of the immunity of a State from all suits by individuals, this view may be regarded as wrong.

Some expressions in other cases seem to indicate a view that the exclusion of all suits by individuals against States was accomplished by the eleventh amendment, not by reversing a rule of construction so as to secure to the States their proper exemption, but directly by awarding such an

exemption. Thus, in South Dakota v. North Carolina,1 Justice Brewer, speaking for the majority, said: "We are not unmindful of the fact that in Hans v. Louisiana . . . Mr.

Justice Bradley . . . expressed his concurrence in the views announced by Mr. Justice Iredell, in the dissenting opinion in Chisholm v. Georgia; but such expression cannot be considered as a judgment of the court, for the point decided was that, construing the eleventh amendment according to its spirit rather than by the letter, a State was relieved from liability to suit at the instance of an individual, whether one of its own citizens or a citizen of a foreign State." And in the dissenting opinion of the four justices in the same case, Justice White said of the decision in Hans v. Louisiana: "It held that the effect of the eleventh amendment was to qualify, to the extent of its prohibitions, the whole grant of judicial power; and, therefore, although a suit by a citizen of a State against a State, to enforce assumed constitutional rights, was not within the letter of the amendment, it was within its spirit." Justice Peckham, also, in delivering the opinion of the court in Ex parte Young, said, in conceding that the eleventh amendment must be given its full and fair meaning: "It applies to a suit brought against a State by one of its own citizens, as well as to a suit brought by a citizen of another State. Hans v. Louisiana.""

In the main, however, the court has recognized the immunity from suits by individuals as a natural attribute of the States. As Justice Miller said, in United States v. Lee: "It is obvious that, in our system of jurisprudence, the principle is as applicable to each of the States as it is to the United States." Certainly, the States, though not sovereign in political theory, have in general been accorded the attributes of sovereignty, as-to use a term of Justice Holmes quasi-sovereign.

The constitution also provides that the judicial power of the United States shall extend to controversies between two

or more States. The undoubted intent here would demand in any view that this provision should be held not to require the consent of a State sued.

The jurisdiction over "controversies between a State

and foreign states," also conferred by the constitution, the court has never been called upon to exercise; but, in view of the fact that the eleventh amendment left unchanged this part of the clause in the constitution, it may be assumed that this provision would likewise be held not to require the consent of a State sued.

A question not quite so simple was whether a State could be subjected to suit by the United States. Justice Peckham, in United States v. Michigan,1 seemed to consider that such a suit might be entertained as between States." So, also, Justice White, in South Dakota v. North Carolina.2 But this view appears ill-founded. The jurisdiction must be sustained upon the clause extending the judicial power to controversies to which the United States shall be a party."

66

In Florida v. Georgia,3 Justices Campbell, Curtis, and McLean, dissenting, held that the United States could not sue a State; that "the constitution did not enlarge the liability of States to suits, but only provided tribunals to which suits might be brought to which they were already subject." Chief Justice Taney, speaking for the court, touched upon the question merely in arguing that if the United States could not become a party, there was all the more reason for allowing the attorney general to argue in behalf of the United States without making the United States a party. In United States v. North Carolina,* the supreme court decided a case brought by the United States against North Carolina, the State making no objection.

In United States v. Texas," objection was made, and the question came squarely before the court for decision. Juris

diction was upheld. Justice Harlan, delivering the opinion of the court, considered that, although "it is inherent in the nature of sovereignty not to be amenable to suit by an individual without its consent," "the question as to the suabiliity of one government by another government rests upon wholly different grounds." This is, I think, an incorrect statement of the principle of non-suability of the State. The principle is not simply that sovereignty may not be sued by an individual, but that sovereignty is not subject to the jurisdiction of courts. The ruling in the case is abundantly justified, however, by weighty federal reasons, and by the fact that the States are subject to suit by one another.

The converse of this case-a suit by a State against the United States-has also arisen. The view of Justice Harlan that the principle of non-suability does not apply to suits by one government against another government would, of course, logically support such a case. Justice White, in South Dakota v. North Carolina,1 argued upon the assumption that such a suit may be maintained. In Kansas v. United States,2 however, the supreme court, without dissent, dismissed the case for want of jurisdiction, on two grounds: first, that the State had no substantial interest, and was simply acting for individuals; second, that a State may not sue the United States without its consent. Chief Justice Fuller, delivering the opinion of the court, said: "It does not follow that because a State may be sued without its consent, therefore the United States may be sued by a State without its consent. Public policy forbids this conclusion." This holding was unnecessary to the decision, and, therefore, to some extent extra-judicial. Yet it is, no doubt, to be accepted as final. It may, perhaps, be justified upon the ground that the reasons for allowing such suits are less urgent than in the converse case, upon the supremacy of the federal government, and upon the position of the court as a part of the federal government.