or condemned under the above recited act of Congress, and who may be subject to the control of this State; and the person so appointed shall have full power and authority to receive all such negroes, mulattoes, or persons of color, and to convey the same to Milledgeville, and place them under the immediate control of the executive of this State.

The second section authorizes the Governor to sell such negroes, mulattoes, or persons of color, in such manner as he may think most advantageous to the State.

The third directs that they may be delivered up to the Colonization Society, on certain conditions therein expressed; provided the application be made before the sale.

Under this act, the Africans brought in by William Bowen were delivered up to the Governor of Georgia, who sold the greater number of them, and paid the proceeds, amounting to $38,000, into the treasury of the State. The Colonization Society applied for those remaining unsold, amounting to rather more than twenty, and offered to comply with the conditions prescribed in the act of December, 1817. In May, 1820, the Governor of Georgia filed an information in the District Court of Georgia, stating the violation of the act of Congress, that the Africans were placed under the immediate control of the executive of the State, where they awaited the decree of the court. He states the application made on the part of the Colonization Society, with which he is desirous of complying as soon as he shall be authorized to do so by the decree of the court. In November, 1820, William Bowen filed his claim to the said Africans, alleging that they 120*] were his property; that they had not been brought into the United States in violation of the act of Congress, but were seized while passing through the Creek nation, on their way to West Florida.

In February, 1821, Juan Madrazo filed his libel, alleging that the Africans were his property; that on the return voyage from Africa, they were captured by the privateer Successor, commanded by an American, and fitted out in an American port; that the vessel and cargo were carried into Amelia Island, and condemned by an unauthorized tribunal; after which they were brought by the purchaser into the Creek nation, where they were seized by an officer of the United States, brought into the limits of the District of Georgia, and delivered over to the government of that State, in pursuance of an act of the General Assembly carrying into effect an act of Congress, in that case made and provided. That a part of the slaves were sold and the proceeds, amounting to $38,000, or more, paid into the treasury of the State; and that the residue, amounting to twenty-seven or thirty, remain under the con

trol of the Governor.

The libel denies that the laws of the United States have been violated, and prays that admiralty process may issue to take possession of the slaves remaining under the control of the Governor of Georgia; and that the Governor and all others concerned, should be cited to show cause why the said slaves should not be restored to Juan Madrazo, and the proceeds of those which had been sold, paid over to him.

Upon this libel a monition was issued to the

Governor of Georgia, who appeared and filed a claim on behalf of the State; in which he says, that the slaves were brought into the State in violation of the act of Congress, and that they were taken into the possession of the executive of the State, in pursuance of the act of the State Legislature, enacted to carry the act of Congress into effect. That a number of the said slaves have been sold, and the proceeds paid into the treasury, where they have become a part of the funds of the State, not subject to his control, or to the control of the Treasurer. That the residue of the said slaves, who remain unsold, have been demanded under the law, by the Colonization Society.

Process was also issued against the Africans, but was not executed. The two causes came on together, and the District Court dismissed the claim of Bowen, and also dismissed the libel of Madrazo, and directed that the slaves remaining unsold should be delivered by the marshal to the Governor of the State, and that the proceeds of those sold should remain in the treasury,

Both Bowen and Madrazo appealed to the Circuit Court.

At the hearing in the Circuit Court, the sentence, dismissing *the claim of Bowen, [*121 was affirmed. That dismissing the libel of Madrazo was reversed, and a decree was made, that the slaves remaining unsold should be delivered to him, on his giving security to transport them out of the United States; and farther, that the proceeds of those which were sold should be paid to him. From this decree, the Governor of Georgia and William Bowen have appealed to this court.

A question preliminarily to the examination of the title to the Africans, which were the subject of these suits, and to the proceeds of those which were sold, has been made by the counsel for the State of Georgia. He contends, that this is essentially, and in form, a suit against the State of Georgia, and therefore was not cognizable to the District Court of the United States.

The process which issued from the court of Admiralty not having been executed, the res was never in possession of that court. The libel of Madrazo, therefore, was not a proceeding against the thing, but a proceeding against the person for the thing. This appeal carried the cause into the Circuit Court, as it existed in the District Court, when the decree was pronounced. It was a libel, demanding, personally, from the Governor of Georgia, the Africans remaining unsold, and the proceeds of those that were sold; which proceeds had been paid into the treasury.

Pending this appeal, the Governor filed a paper in the nature of a stipulation, consenting to hold the Africans claimed by the libel of Madrazo, subject to the decree of the Circuit Court; if it should be determined that the claim in the Circuit Court had priority to sundry executions, levied on them by the sheriff of Baldwin county. Had this paper been filed in the District Court, it would have been a substitute for the Africans themselves, and would, according to the course of the admiralty, have enabled that court to proceed in like manner as if its process had been served upon them. The libel would then have been in rem. Could

The paper in nature of a stipulation, is a mere substitute for the process of the court; and cannot, we think, be resorted to where the process itself could not be issued according to law. The process could not issue legally in this case, because it would be the exercise of original jurisdiction in admiralty; which the Circuit Court does not possess.

This cause therefore remained in its character a libel against the person of the Governor of Georgia, for the Africans in his possession as Governor, and for the proceeds, in the treas122] ury, of those which had been sold. Could the District Court exercise jurisdiction in such a cause?

Previous to the adoption of the 11th amendment to the constitution, it was determined that the judicial power of the United States extended to a case in which a state was a party defendant. This principle was settled in the case of Chisholm v. Georgia, 2 Dal. 419. In that case, the State appears to have been nominally a party on the record. In the case of Hollingsworth v. Virginia, also, in 3 Dal. 378, the State was nominally a party on the record. In the case of Georgia v. Brailsford, 2 Dal. 402, the bill was filed by His Excellency Edward Telfair, Esq., Governor and Commander-in-Chief, in and over the State of Georgia, in behalf of the said State. No objection was made to the jurisdiction of the court, and the case was considered as one in which the Supreme Court had original jurisdiction, because a State was a party. In the case of New York v. Connecticut, 4 Dal. 3, both the States were nominally parties on the record. No question was raised in any of the cases respecting the style in which a State should sue or be sued; and the presumption is that the actions were admitted to be properly brought. In the case of Georgia v. Brailsford, the action is not in the name of the state, but it is brought by its chief-magistrate in behalf of the State. The bill itself avows, that the State is the actor, by its Governor.

There is, however, no case in which a State has been sued without making it nominally a defendant.

Fowler et al. v. Lindsey et al. 3 Dal. 411, was a case in which an attempt was made to restrain proceedings in a cause depending in a Circuit Court, on the allegation that a controversy respecting soil and jurisdiction of two States had occurred in it.

In

The court determined that a State, not being a party on the record, nor directly interested, the Circuit Court ought to proceed in it. the United States v. Peters, the court laid down the principle, that although the claims of a State may be ultimately affected by the decision of a cause, yet if the State be not necessarily a defendant, the courts of the United States are bound to exercise jurisdiction.

In the case of Osborne v. The Bank of the United States, 9 Wheat. 738, this question was brought more directly before the court. It was argued with equal zeal and talent, and decided on great deliberation. In that case, the auditor and treasurer of the State were defendants, and the title of the State itself to

case, the court said: "It may, we think, be laid down as a rule, which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record." The court added, "*the State not being [*123 a party on the record, and the court having jurisdiction over those who are parties on the record, the true question is not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties."

The information of the Governor of Georgia professes to be filed on behalf of the State, and is in the language of the bill, filed by the Governor of Georgia on behalf of the State, against Brailsford.

If, therefore, the State was properly considered as a party in that case, it may be considered as a party in this.

The libel of Madrazo alleges that the slaves which he claims "were delivered over to the government of the State of Georgia pursuant to an act of the General Assembly of the said State, carrying into effect an act of Congress of the United States, in that case made and provided; a part of the said slaves sold, as permitted by said act of Congress, and as directed by an act of the General Assembly of the said State, and the proceeds paid into the treasury of the said State, amounting to $38,000, or more."

The Governor appears and files a claim on behalf of the State to the slaves remaining unsold, and to the proceeds of those which are sold. He states the slaves to be in possession of the executive, under the act of the Legislature of Georgia, made to give effect to the act of Congress on the subject of negroes, mulattoes, or people of color, brought illegally into the United States, and the proceeds of those unsold to have been paid in the treasury, and to be no longer under his control.

The case made, in both the libel and claim, exhibits a demand for money actually in the treasury of the State, mixed up with its general funds, and for slaves in possession of the government. It is not alleged, nor is it the fact, that this money has been brought into the treasury, or these Africans into the possession of the executive, by any violation of an act of Congress. The possession has been acquir ed by means which it was lawful to employ.

The claim upon the Governor, is as a governor; he is sued, not by his name, but by his title. The demand made upon him is not made personally, but officially.

The decree is pronounced not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant, as the appealed bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a State is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the *State itself [*124 may be considered as a party on the record. If the State is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before

The

But were it to be admitted that the governor could be considered as a defendant in his personal character, no case is made which justifies a decree against him personally. He has acted in obedience to a law of the State, made for the purpose of giving effect to an act of Congress, and has done nothing in violation of any law of the United States.

The decree is not to be considered as made in a case in which the governor was a defendant in his personal character; nor could a decree against him, in that character, be supported.

The decree cannot be sustained as against the State, because, if the 11th amendment to the constitution does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the Supreme Court. It cannot be sustained as a suit, prosecuted not against the State, but against the thing, because the thing was not in possession of the District Court.

We are therefore of opinion that there is error in so much of the decree of the Circuit Court as directs that the said slaves libeled by Juan Madrazo, and the issue or the females now in the custody of the government of the State of Georgia, or the agent or agents of the said State, be restored to the said Madrazo, as the legal proprietor thereof, and that the proceeds of those slaves, who were sold by order of the governor or the said State, be paid to the said Juan Madrazo, and that the same ought to be reversed; but that there is no error in so much of the said decree as dismisses the information of the Governor of Georgia and the claim of William Bowen.

Mr. Justice Johnson, dissentiente:

By the new and unexpected aspect which this cause has assumed in this court, I feel myself called upon to accompany the report of this decision with a brief explanation. Such an explanation appears necessary, not less in vindication of the course pursued by the State of Georgia, than of the judicial course of the Circuit Court, over which I have the honor to preside.

By the state of facts, as now exhibited, it would appear as if the court of the sixth circuit of the District of Georgia had been taking very undue liberties, both with the executive and treasury departments of that State; and that 125*] two of the governors of that State, acting in behalf of the State, had first come voluntarily into the courts of the United States, and then, only because the decision of that court was against the rights they asserted, repudiated their own act, and denied the jurisdiction of the very court which they had voluntarily called to decide on their rights. Yet nothing can be further from the truth of the case. The real exposition of the incidents to the cause lies in this: that the actual promovent contestatio litis, was the colonizing so ciety; that Georgia, at least, in its inception, had no interest in it; that the Governor only regarded himself as a stakeholder to the three

It is true, that in this point, the Legislature of the State has differed in opinion on the question of right, from the court that tried the cause, and surrendered them to Bowen, instead of Madrazo; but this fact proves that she was not contending for herself.

There is no necessity, however, for speaking out of the record on this subject. The information, as well as the claim, filed in Madrazo's libel, both explicitly avow, that as to the slaves remaining unsold, the Governor was acting in behalf of the colonizing society; and had not the decision below been against their claim, and on grounds which cannot be shaken, it is fair to conjecture that the exception here taken to the jurisdiction would never have been suggested; nor had that society possessed a legal existence, so as to prosecute a suit in its own name, is there the least reason to believe that the Governor of Georgia would ever have presented himself in the courts of the United States upon this subject.

What could he do? This property had come legally into the hands of his predecessor; a part had been sold; and the rest transmitted to him, specifically. Two parties presented themselves claiming it in their respective rights; and having been constituted by law the guardian of the rights of one, he presents himself to the only Court that could take cognizance of the cause, in order to have the question of right decided, before he would surrender the slaves in his possession to either claimant. The money raised from the sales he disavows having any control over.

But, in the progress of the cause, incidents occur which produce a total change in the views and interests of parties. A third party arises, and, on the clearest proofs and best established principles, has made out the proprietary interest to be in himself. An appeal is taken to this court, and pending the appeal, *the party who had failed in every court [126 below, and must fail, wherever the rights are subjected to judicial cognizance, succeeds in prevailing on the Legislature to abandon the property to him.

Thus, then, the colonizing society have lost all hopes from a suit at law; Bowen has obtained the property; the Legislature that gave it to him, can, at least, feel no desire to have Madrazo's rights confirmed in this court, and all became interested in overturning their own work, and crushing Madrazo's interest under the ruins.

It is certainly a purpose which cannot be willingly favored in a court of justice; and I meet it with the most thorough conviction that the law is not with the appellants, on the objections to the jurisdiction of the court below, which have now, here, for the first time, been moved and argued.

There are two exceptions taken to the exercise of jurisdiction in the court below:

1. That a State was a party, &c.

2. That the jurisdiction of the District Court never attached, because the res subjecta was never actually in possession of that court.

The facts were these: The negroes were cer

tainly brought into the United States in contravention of the act of Congress of 1807. That act creates a forfeiture, inasmuch as it devests the owner of all property in the slaves so brought in; and by another provision, it is left to the States to dispose of such persons of color in any manner they may think proper, not contravening the provisions of that act. The State of Georgia, by law, authorized their governor to appoint an agent to receive such persons of color, and deliver them to the executive to be sold, unless applied for by the colonizing society; and if so applied for, then to be delivered into their possession.

These slaves were seized by a revenue officer of the United States, and voluntarily delivered to Governor Rabun, then Governor of Georgia, who had sold all, except about thirty, before the society applied to him, agreeably to the provisions of the act.

The Georgia law contains no express instructions to the Governor how to dispose of the proceeds of the sales. It authorizes him to sell, after sixty days' notice, "in such manner as he may think best calculated for the interest of the State;" but whether for cash or credit, or to remain in or be shipped from the State, be meant by this provision, there are no means of determining. The money was, in this instance, paid into the treasury; or, at least, so 127] the Governor alleges, in his claim to the Madrazo libel; and so we are bound to consider the facts.

Here, then, was a case of forfeiture, under a law of Congress; and the Governor of the State legally authorized to sue for and recover the thing forfeited, and "when seized and condemned," as the Georgia law expresses it, to sell it on one state of facts; on another, to deliver it to the colonizing society. Who was to sue for this torfeiture, if not the State, or the Governor as its representative? The society could not, for it had no existence in law.

The governor accordingly sold the greater part; and his successor filed an information in the District Court of the United States, to have the residue condemned, that he might deliver them to that society. To this libel and information, Bowen filed his claim and answer; and while that suit was pending, Madrazo filed his libel in the District Court, praying process against the Africans remaining in the Governor's hands, and the proceeds of those which were sold. On this libel a warrant of arrest was issued against the slaves, and a monition to the Governor and all concerned, in relation to the whole subject of Madrazo's claim.

The warrant of arrest was not served in the District Court; but Governor Clark, successor of Governor Rabun, appeared to the monition, without protest, and filed a claim to the Africans, in behalf of the society; as to the proceeds of those which had been sold, he simply answers that they had been paid into the treasury, where they remained mixed up with the treasurer of the State, and beyond his control.

The pleadings were in this state when the district judge entered upon a plenary hearing of the case, taking into view the information of the Governor with Bowen's claim, and the libel of Madrazo with the Governor's claim and answer; and thereupon sustained the in

formation, and dismissed Bowen's claim and Madrazo's libel.

Bowen and Madrazo appealed; and, on the hearing in the Circuit Court, where a body of new evidence was introduced, the decree of the District Court was reversed, and the information and Bowen's claim dismissed.

But, having proceeded so far, the Circuit Court found itself thus situated.

As the District Court had sustained the in formation, it would have been nugatory to enforce its warrant of arrest upon the slaves, since they were already in possession of the State. Madrazo's libel being dismissed in that court, no further steps were taken to render the res subjecta into actual possession.

But, when the information was dismissed, and Madrazo's *libel sustained in the [*128 Circuit Court, it followed that it was error in the District Court not to have enforced the service of the warrant of arrest on the slaves, or done some equivalent act. Thus situated, the Circuit Court could not send back the cause; because, by the 24th section of the judiciary act of 1789, the Circuit Court is required to go on and make such a decree as the District Court ought to have made. That court thought that the obligation to perform this duty carried with it all the incidents necessary to perform it, and ordered process accordingly. To this the Governor again, without protest, responded, by voluntarily entering into a stipulation to hold the slaves, subject to the order of that court; and then the court, considering itself legally in possession of the res, made the decree in favor of Madrazo, which is here brought . up for revision.

On the question of right, upon the evidence before the Circuit Court there can scarcely be two opinions. The cargo was Madrazo's; it was captured by a privateer, fitted out in Baltimore, run into Fernandina, there sold to Bowen, carried across the country to the Creek agency, within the limits of the United States, and where its jurisdiction attached, notwithstanding the Indian title existed; and, although Bowen, the tortious owner, committed an offense by introducing them into the country, Madrazo was not privy to that offense, and was innocent of any act that could work a forfeiture of his interest.

But the question now to be considered, is exclusively that of jurisdiction; and it is insisted, first, that as the State was a party, and the party defendant in both cases, in the Circuit Court, that court could not maintain jurisdiction of the subject.

That a State is not now suable by an individual, is a question on which the court below could not have paused a moment.

The 11th amendment to the constitution put that question at rest forever. But where is the provision of the constitution which disables a State from suing in the courts of the Union?

The second section of the third article extends the judicial power of the United States to all cases arising under the law of the United States, and to all cases of admiralty and maritime jurisdiction; to controversies between two or more States, between a State and citizens of another State, and between a State, or the citizens thereof, and foreign States, citizens, or subjects.

It is true, the next section provides that, in all cases in which a State shall be a party the 129*] Supreme Court shall have *original jurisdiction. But, it is obvious that original does not mean exclusive; and, in the 13th section of the judicial act of 1789, it is so treated; since the Legislature there declares in what instances the jurisdiction of the Supreme Court shall be exclusive, and in what concurrent, when a State is a party. The words of that section are: "The Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State, and citizens of other States, and aliens; in which latter case, it shall have original, but not exclusive jurisdiction.

Now, considering this section in connection with the constitution, it is obvious, that the word exclusive, there used, must be considered as applying solely to the Courts of the United States; since it never could have been imagined that the States were to be restricted from suing in their own courts, or those of their sister States; and thus construed, it must carry the implication that the States may sue in any other courts of the United States, in cases comprised within the jurisdiction vested in those courts, by the judiciary act; provided the cause of action, or the parties be such as bring the suit within the cases to which the judicial power of the United States is extended by the constitution.

In a suit against an alien, then, there can be no question that a State may sue in the Circuit Court; and must prosecute a suit there, if the alien chooses to assert the right of transfer secured to him, under the 12th section of that act.

And so with regard to suits against consuls and vice-consuls, it is perfectly clear, that the suit of a State must, if the defendant insists upon his right, be prosecuted in the District Courts of the United States.

The 9th section of the act being that which prescribes the jurisdiction of the District Courts, is explicit on this point. But that section embraces other cases, in which, without any strained construction, the States may assert the rights of a suitor in the District Court. The words of the section are: "The District Courts shall have exclusive original cognizance of all civil causes of admiralty and maritime jurisdiction, including all seizures under laws of impost, navigation, and trade of the United States, where seizures are made on waters, &c.; and shall also have exclusive original cognizance of all seizures on land, &c.; and of all suits for penalties, and forfeitures, incurred under the laws of the United States."

*

Now, it is very clear that wherever the District Court is vested with "exclusive original cognizance," the Supreme Court can possess no original jurisdiction; and such is clearly the 130*] case with regard to seizures and suits for forfeitures, under the laws of the United States, and suits in the admiralty. And, unless some reason can be shown, why a State should not prosecute a suit for a forfeiture, under the laws of the United States, it follows, with regard to the information, that the jurisdiction was rightfully exercised by the District Court in the present instance. The admiralty

suit shall be separately considered. But why may not a State prosecute a suit for a forfeiture under a law of the United States? Take the cases of a law of Congress passed to aid the States, in the collection of a tonnage duty; or of a penalty under their inspection laws. In the one case, there may be a seizure on the water, and in the other, on the land; in either there may be a suit for a forfeiture; and in all, the penalty might, very rationally, be given to the State or its prosecuting officer. The present, so far as it involves the question on the information, is precisely one of those cases. Here was a forfeiture, incurred under a law of the United States; and the benefit of it was consigned to the States if they chose to accept it. Here the State did accept it, and authorized their executive to assert the rights derived under the law of Congress.

An examination of the exceptions in the thirteenth section of the act, which marks out the jurisdiction of the Supreme Court, will throw light upon this subject.

The language of the section is: "That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also, between a State and citizens of other States, or aliens; in which latter case, it shall have original, but not exclusive jurisdiction."

Now, it may seem unaccountable at first view, why these exceptions should have been extended to controversies between a State and its own citizens, since controversies between a State and its own citizens is not one of the subjects of jurisdiction enumerated in the constitution. And the solution is to be found in this, that the grant of jurisdiction, as to cases arising under the constitution, laws, &c., of the United States, and of admiralty and maritime causes, it is not restricted to, or limited by any relation or description of persons. Controversies, in these branches of jurisdiction. may, therefore, by possibility, arise between a State and its own citizens; certainly between a State and the citizens of other states, or aliens, under the laws of the Union, or in admiralty and maritime cases.

As the law regards this information as a civil suit, in rem, on the exchequer side of the admiralty, and it was grounded on a law of Congress, the citizenship of the claimants can have no influence on the question of jurisdiction. I think, *however, that it appears [*131 somewhere in this voluminous record, that Bowen was a citizen of Georgia; but whether of that State, a sister State, or a foreign State, the controversy, if it be regarded as one with individuals, is expressly excepted from the exclusive jurisdiction of the Supreme Court; and, I must think, is within the original jurisdiction of the District Court. And if so, it follows that. the State must, upon appeal from a decision there made in its favor, assume the attitude of a defendant in any court into which the cause may be legally carried, by appeal or writ of error.

In England, the King cannot be sued, yet he is daily brought before the Appellate Courts, as a defendant in error. It has long since been decided that this is legal. And thus, too, the United States continually appears upon the