such cases, it is taken for granted that the consent of the State has waived the question of jurisdiction. So far as I have been able to discover, however, none of these cases was brought by a citizen of another State; so that the eleventh amendment did not directly apply, and the attitude of the court was entirely proper. Justice Harlan, in General Oil Company v. Crain,1 stated that "it was long ago settled that a writ of error to review the final judgment of a State court . . . is not a suit within the meaning of the eleventh amendment. Cohens v. Virginia, 6 Wheat. 264." Now, Cohens v. Virginia decided no such thing. It decided simply that a proceeding on writ of error is merely a continuation of the case below. In Cohens v. Virginia, the suit was brought not against the State, but by the State, so that the eleventh amendment could not apply; and the character of the suit was not changed by the writ of error. This very reasoning would bar from the federal courts a suit that is in its origin a suit against the State by a citizen of another State, just as much on writ of error as by original suit.

In Clark v. Barnard,2 a railroad company gave to the State of Rhode Island a bond for $100,000, conditioned on completing a portion of road within a certain time. As security, the railroad company loaned $100,000 to the city of Boston, for which the latter gave its note to the treasurer of Rhode Island. The road becoming insolvent, after the time named in the bond, the receiver brought suit in the United States circuit court, on the ground of diverse citizenship, against the treasurer of Rhode Island and the city of Boston, alleging that the bond was invalid, for a decree ordering the treasurer to give back the note of the city of Boston, and enjoining him from receiving the money and the city from paying it over, and for the restoration of the money to the railroad. The treasurer demurred on the ground that it was in effect a suit against the State; but the demurrer was overruled. The court required the city of

1 209 U. S. 211. 2 108 U. S. 436.

Boston to pay the $100,000 into court, with leave to the State to prove any damages it might have sustained on account of the breach of the condition of the bond. The State then became a party claimant to the fund," without prejudice to the demurrer of the treasurer." The State proved no damages, and the funds were awarded to the railroad. On appeal, the supreme court held the State entitled to the funds, on the ground that the bond became forfeited on breach of the condition, without proof of damages.

What is in point here is the ruling on the question of suit against the State. Justice Matthews, speaking for the court, said: "We are relieved, however, from its consideration, by the voluntary appearance of the State in intervening as a claimant of the funds in court. The immunity from suit belonging to a State, which is respected and protected by the constitution within the limits of the judicial power of the United States, is a personal privilege, which it may waive at pleasure; so that in a suit, otherwise well brought, in which a State had sufficient interest to entitle it to become a party defendant, its appearance in a court of the United States would be a voluntary submission to its jurisdiction. . . . It became an actor as well as defendant."

Now, if the case could be regarded as a suit by the State, it would be all right. But the difficulty is that the State could not bring such a suit in the United States circuit court; for the circuit courts have no jursdiction of suits between a State and a citizen of another State, unless a federal question is involved.1 On the other hand, if the court had jurisdiction of the original suit, the fact that the State became a party would not oust the jurisdiction once attached.2 But the court expressly said that it was not necessary to decide whether the suit was obnoxious as a suit against the State, because the State was a voluntary party. Moreover, although the circuit court held the original suit was not in effect a suit against the State, it is very debatable whether the State was not an indispensable party. So that, strictly

analyzed, the case may be regarded as holding squarely that consent of the State sued may confer jurisdiction in a case within the terms of the eleventh amendment. If this holding is to be explained away, it may, perhaps, best be done on the ground that the State became a party plaintiff, and that the court overlooked the objection to such a suit by the State.

Not quite so difficult to justify is Gunter v. Atlantic Coast Line Railroad Company.1 In Humphrey v. Pegues, had been sustained a decree of a United States circuit court, enjoining certain county treasurers of South Carolina from proceeding to collect a tax on a railroad company, declared unconstitutional as a violation of a contract exemption. Twenty-five years later, the State by law directed the attorney general to bring suit to recover taxes to be assessed for ten years back on railroad property that had been off the books. The suit of Gunter v. Atlantic Coast Line Railroad Company was brought as ancillary to Humphrey v. Pegues, to restrain suit under the act for taxes that had been declared unconstitutional in that case. The court avoided the necessity of deciding whether the new suit by itself was open to objection as a suit against the State, by holding that Humphrey v. Pegues was an action under a State law construed as providing therefor as a form of action against the State, and that, since the State was a party bound by the decision in that case, the present action, even if a suit against the State, was a proper proceeding to enforce that decision.

That the court was of opinion that consent of a State may waive the limitations of the eleventh amendment is evident from the statement in the opinion of the court, written by Justice White, of the "elementary propositions"; that "In view of the prohibitions of the eleventh amendment . . . a State, without its consent, may not be sued by an individual in a circuit court of the United States," and that "Although a State may not be sued without its consent,

1200 U. S. 273. 216 Wall. 244.

such immunity is a privilege which may be waived." This decision may, however, readily be sustained on other ground: to wit, that Humphrey v. Pegues in its inception was clearly a proper suit against the county treasurers as individuals, and that, when the defense in accordance with the State law made it also a form of action against the State, this development did not devest the jurisdiction that had already attached.1

In view of the peculiar circumstances of Clark v. Barnard and of Gunter v. Atlantic Coast Line Railroad Company, the question may fairly be regarded as not finally settled. It is so clear on principle that consent of a State cannot remove the limitations of the eleventh amendment, that, if the question is squarely presented and argued, the court may yet so hold.

Restriction of consent to State courts.

2

In Smith v. Reeves, it was held, as an exception to the general principle that where a suit may be maintained in a State court the State cannot prevent resort to the federal courts if the requisites for federal jurisdiction are present, that a State, in allowing suits against itself, may limit such suits to its own courts, to the exclusion of the federal courts. This decision is well based on the ground that a remedy by an individual against a State is purely a matter of grace, subject to such conditions as the State may choose to impose.

In the same case, however, it was stated by Justice Harlan, in the opinion of the court, that the right of the State is " subject always to the condition, arising out of the supremacy of the constitution of the United States and the laws made in pursuance thereof, that the final judgment of the highest court of the State, in any action brought against

178 U. S. 436.

3 Under the view urged in the last section, a suit against a State within the prohibition of the eleventh amendment is without the jurisdiction of the federal courts, even with the consent of the State.

it with its consent, may be reviewed or reexamined, as prescribed by the act of congress, if it denies to the plaintiff any right, title, privilege, or immunity secured to him and specially claimed under the constitution or laws of the United States." Justice Holmes, also, in Chandler v. Dix,1 said: "Of course, a taxpayer denied rights secured to him by the constitution and laws of the United States, and specially set up by him, could bring the case here by writ of error from the highest court of the State.' The point has not, however, been decided. With due respect for the dicta of the learned justices, I can see no reason whatever why, if the grant of a remedy against itself is a matter of grace on the part of the State, it may not exclude the jurisdiction of the supreme court just as well as of the circuit courts of the United States.

Withdrawal of consent and impairment of the obligation of contracts.

In Memphis and Charleston Railroad Company v. Tennessee, the principle that an impairment of the remedy is an unconstitutional impairment of the obligation of the contract was invoked against the State. The supreme court held, however, that, since the remedy withdrawn had conferred on the State court no power to execute the judgment, which remained dependent on an appropriation by the legislature, it was not such an effective judicial remedy as to come within the principle.3

4

In the earlier case of Beers v. Arkansas, it had been held that a general law allowing suits against the State did not become part of a contract. And this was necessarily the view of the four justices concurring in the opinion written by Justice Matthews in Antoni v. Greenhow," and of the four dissenting justices in Poindexter v. Greenhow, where

1 194 U. S. 590.

2 IOI U. S. 337.

Reaffirmed in So. & No. Ala. R.R. Co. v. Ala., 101 U. S. 832. 20 How. 527.

107 U. S. 769.

114 U. S. 270.