has original jurisdiction in the case of suits by a foreign state against one of the members of the Union. (e)1

(e) Blair, J., and Cushing, J., in Chisholm v. State of Georgia, 2 Dallas, 419. That a foreign prince or state may sue in our own as well as in the English courts of law and equity, see King of Spain v. Oliver, 1 Peters C. C. 276; The Colombian Government v. Rothschild, 1 Sim. 104; King of Spain v. Machado, 4 Russ. 238; 1 Dow, P. C. N. s. 165, s. c. No direct suit can be maintained against the United States, without the authority of an act of Congress, nor can any direct judgment be awarded against them for costs. Marshall, C. J., in Cohens v. Virginia, 6 Wheaton, 411, 412; United States v. Clarke, 8 Peters, 444; United States v. Barney, Dist. C. Maryland, 3 Hall, L. J. 128; United States v. Wells, 2 Wash. 161; Op. Att.-Gen. ii. 967,

1 As to the word "suit," see Ex parte Milligan, 4 Wall. 2, 112 et seq.; post, 326, n. 1.

A foreign sovereign may sue to prevent injury to property of himself or his subjects. On this ground Kossuth was enjoined at the suit of the Emperor of Austria from making notes purporting to be receivable as money in Hungary, and to be guaranteed by that state, although they were not imitations of any notes then current. Emperor of Austria v. Day & Kossuth, 3 De G., F. & J. 217. See Hullett v. King of Spain, 1 Dow & C. 169; United States v. Prioleau, 2 H. & M. 559. And a foreign republic, which has been recognized by a government, may sue in the courts of the latter in its own name, and without joining any party as plaintiff who can be compelled to give discovery. United States of America v. Wagner, L. R. 2 Ch. 582; Republic of Mexico v. De Arangois, 5 Duer, 634. But a foreign

1 Suits may be maintained by foreign sovereigns in the United States courts wherever they have a cause of action of a civil nature. The Sapphire, 11 Wall. 164. See further, Republic of Peru v. Wequelin, 20 L. R. Eq. 140; Costa Rica v. Erlanger, 1 Ch. D. 171.

In general, a sovereign cannot be sued in the courts of a foreign jurisdiction; but if the sovereign sues in such courts, the defendant may file a counterclaim or set-off. And such sovereign may be joined as defendant in a suit to obtain

sovereign cannot sue, it seems, to restrain acts which only violate his political privileges, Kossuth's Case, supra; and he cannot be sued in England for an act done in his sovereign character in his own country, Duke of Brunswick v. King of Hanover, 2 H. L. C. 1; Gladstone v. Ottoman Bank, 1 H. & M. 505. Compare further, Smith v. Weguelin, L. R. 8 Eq. 199; Gladstone v. Musurus Bey, 1 H. & M. 495; Penn. Law J. Dec. 1847, p. 97. x1 As to suits to which a state is a party, see p. 400 and notes.

It is not uncommon in modern times for sovereign powers to allow proceedings against themselves in their own courts. But in the absence of statute, the old principle has been held applicable to the United States. Hill v. United States, 9 How. 386; United States v. McLemore, 4 How. 286; The Siren, 7 Wall. 152, 154; Case v. Terrell, 11 Wall. 199; 2 iii. 171, n. 1. And a state may withdraw its con

property in the jurisdiction of the court, on which both plaintiff and the foreign sovereign have claims. Strousberg v. Costa Rica, 44 L. T. 199. The property of a foreign sovereign is also exempt from molestation, with certain exceptions. Vavasseur v. Krupp, 9 Ch. D. 351; The Charkieh, 42 L. J. Adm. 17.

x2 Carr v. United States, 98 U. S. 433; United States v. Lee, 106 U. S. 196. In this last case, it is held, in an elaborate opinion by Mr. Justice Miller, that an action of ejectment will lie against offi

With these general remarks on the constitutional principles of the judiciary department and the objects of its authority, we

968. But if an action be brought by the United States to recover money in the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not, in such case, be turned round to an application to Congress. Act of Congress, March 3, 1797, c. 74, sec. 3, 4; United States v. Wilkins, 6 Wheaton, 135, 143; Walton v. United States, 9 Wheaton, 651; United States v. Macdaniel, 7 Peters, 16; United States v. Ringgold, 8 Peters, 163; United States v. Clarke, ib. 436; United States v. Robeson, 9 Peters, 319; Same v. Hawkins, 10 Peters, 125; Same v. Bank of the Metropolis, 15 Peters, 377. In the case of the late Bank of the United States, who claimed damages by way of set-off

sent after a suit has been begun against it. Beers v. Arkansas, 20 How. 527.

Court of Claims. — It was not until 1855 that steps were taken to remedy this failure of justice, and the act of Feb. 24 (10 U. S. St. at L. 612, c. 122) established a court for the investigation of certain claims against the United States. This board, however, had no power to render final judgments, or to do more than to make a favorable or adverse report to Congress. And it was only by the act of March 3, 1863 (12 U. S. St. at L. c. 92, p. 765), that it became an independent court. It still has the jurisdiction given by the earlier statute over all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein; and also all claims which may be referred to said court by either house of Congress;

cers of the government in possession of property used for public purposes, and held only for the United States, and hence that the court had jurisdiction to determine the validity of the title of the United States. An equally elaborate dissenting opinion was delivered by Mr. Justice Gray, and concurred in by Justices Woods and Bradley, and Waite, C. J., holding that the court had no such jurisdiction. Chesapeake, &c., R. R. Co.

and it cannot qualify its jurisdiction by rules. Clyde v. United States, 13 Wall. 38. The act of 1863, § 2, provides that petitions, &c., for the satisfaction of such private claims against the government shall be transmitted to the court unless it is otherwise resolved by the house in which they are presented. Section 3 gives additional jurisdiction of all set-offs, counter-claims, &c., on the part of the government against the claimant, and the court may give judgment in favor of the government for the balance found due to it, if any.

It may be mentioned that the rule is otherwise when the United States is plaintiff; for under the statutes allowing a set-off in that case, no judgment can be rendered against the government, although a balance be shown in the defendant's favor. United States v. Eckford, 6 Wall. 484 (citing De Groot v. United States, 5 Wall. 419, 432); Watkins v. United States, 9 Wall. 759.

The jurisdiction of the court is

v. Miller, 19 W. Va. 408. The consent must be by the legislature. Goldsmith v. Revenue Cutter, 6 Oreg. 250. The immunity may be waived. Clark v. Barnard, 2 Supr. Ct. Rep. 878.

See Allen v. United States, 17 Wall. 207. The provision is not rendered void by the seventh amendment to the Constitution. McElrath v. United States, 102 U. S. 426.

proceed to a particular examination of the several courts of the United States, as ordained by law.

on a protested bill drawn by the United States, the Attorney-General, in an elaborate official opinion, held that the set-off could not be allowed in a suit by the United States against the bank, for dividends due the United States, and withheld. Op. Att.-Gen. ii. 964, 982. But in the same case of the Bank of the United States v. The United States, in 2 How. 711, the United States sued the bank for dividends withheld; and the bank, by way of set-off, claimed 15 per cent damages, under the law of Maryland (which on this point was the law at the city of Washington), on a protested bill drawn by the government of the United States on France, and taken by the bank as first indorsee, and presented at Paris for payment, and protested for non-payment,

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3. Jurisdiction of the Supreme Court. *The Supreme Court was instituted by the Constitution, which ordained

and taken up by a banking-house in Paris, supra protest, for the honor of the Bank of the United States, which was the first indorser. It was held, by a majority of the court, that the bank, on satisfying the banking-house in Paris, became the lawful holder of the bill, and as such holder entitled to the damages by way of set-off against the United States as drawer, in like manner as any individual holder of a protested bill would be. Mr. Ch. J. Taney, who was the Attorney-General that gave the opinion alluded to in the former part of this note, added a new opinion founded on the special circumstances of the case, against the allowance of the set-off, denying that the United States were bound, either in law or equity, to pay, or the bank entitled to claim, the contested damages. Independent of anything special in the case, the general doctrine of the decision was sound and unquestionable. To entitle the party to his set-off, his claim must have been previously submitted to the accounting officers of the treasury and been disallowed, or he must reasonably account for the omission. See sec. 3 and 4 of the act aforesaid. In the case Ex parte Madrazzo, 7 Peters, 627, a subject of the King of Spain filed a libel in the admiralty against the State of Georgia, alleging that the state was in possession of moneys, being the proceeds of certain property belonging to him, and claiming a right to institute a suit in the admiralty for the same, and that the 11th amendment to the Constitution of the United States did not take away the jurisdiction of the courts of the United States in suits in udmiralty against a state. But on appeal from the decree of the Circuit Court, sustaining the libel, to the Supreme Court of the United States, it was held that the proceeding in question was a mere personal suit against a state, to recover property in its possession; and that a private person could not commence such a suit; and that it was not a case where the property was in the custody of a court of admiralty, or brought within its jurisdiction, and in possession of any private person. The jurisdiction would seem to have been impliedly admitted in the latter case. A state cannot be sued in its own courts without its consent. Michigan State Bank v. Hastings, Walker, Ch. (Mich.) 9. This is an attribute of sovereignty and of universal law. But a foreign sovereign may voluntarily become a party to a suit in the tribunals of another country, and have his rights asserted and enforced. And it was declared in the case of The Exchange, 7 Cranch, 116, that all persons and property within the territorial jurisdiction of any sovereign were amenable to the local jurisdiction, with such exceptions only as common usage and public policy had allowed. The result is, (1.). That no citizen of any of the United States, or subject of a foreign state, can sue a state. (2.) That a foreign state may sue one of the United States before the Supreme Court of the United States, and there only. (3.) That the United States cannot be sued. (4.) That the United States may sue a state, and perhaps they may, as a bona fide assignee of an individual creditor of a state, and perhaps an individual state, or a foreign state, as such assignee, may do it. See Hamilton's Report on Public Credit,

subjects of a government which accords to citizens of the United States the right to prosecute claims against such government in its courts can sue in the Court of Claims under the abandoned and captured property acts before mentioned. Act of July 27, 1868, c. 276, § 2, 15 U. S. St. at L. 243. A British subject is not prevented

from suing by this act, United States v. O'Keefe, 11 Wall. 178; nor a Prussian, Brown's Case, 5 Ct. of Cl. 571; nor a French, Rothschild's Case, 6 Ct. of Cl. 204; nor a Spanish, Molina's Case, 6 Ct. of Cl. 269; nor a Swiss, Lobsiger's Case, 5 Ct. of Cl. 687.

that "the judicial power of the United States should be vested in one Supreme Court, and in such inferior courts as Congress might from time to time ordain and establish." (a) But it received its present organization from Congress, for the Constitution had only declared, in general terms, that there should be a Supreme Court, with certain original and appellate powers. It consists of a chief justice and eight associate justices, any five of whom make a quorum; and it holds one term annually, at the seat of government, commencing on the first Monday in December, and continued at discretion. (b) But though five of the judges are requisite for business in general, yet any one or more of them may make all necessary orders in a suit, preparatory to the hearing or trial, and continue the court from day to day, in the absence of a quorum; and the judge of the fourth circuit attends at the city of Washington, on the first Monday of August, annually, for interlocutory matters.

The Supreme Court has exclusive jurisdiction of all controversies of a civil nature, where a state is a party,' except between a state as defendant and its citizens; and except, also, between a state as defendant, and citizens of other states or aliens, in which cases it has no jurisdiction; but in all these cases where a state is plaintiff, it has original but not exclusive jurisdiction. It has, also, exclusively, all such jurisdiction of suits, or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as a court of law can have or exercise, consistently with the law of nations; and original but not exclusive jurisdiction of all suits brought by ambassadors or other public ministers, or in which a consul or vice-consul shall be a party. (c)2 The Supreme Court was also clothed by the Constitution (d) "with appellate jurisdiction, both as to law and fact, *with such exceptions and under such regulations as Congress should make;" and, by the Judiciary Act of

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1790, p. 9. This last point is without any judicial support that I am aware of; and it may be questioned how far voluntary assignments, made and accepted for the sake of the remedy, would be available.

(a) Art. 3, sec. 1.

(b) Acts of Congress of April 29, 1802; February 24, 1807, sec. 5; May 4, 1826; January 21, 1829 [c. 12]; March 3, 1837, c. 34; and of 17th June, 1844, c. 96.

(c) Act of Congress, September 24, 1789, sec. 13.

(d) Art. 3, sec. 2.

1 Post, 323, n. 1.

2 Post, 814, and note.