diction to hear and determine controversies and cases between the parties designated, that were properly susceptible of litigation in courts.

to be sued by a citizen of another State, or of a foreign country. That decision was made in the case of Chisholm v. Georgia, 2 U. S. 2 Dall. 419 [1: 440], and created such a shock of sur- Looking back from our present standpoint prise throughout the country that, at the first at the decision in Chisholm v. Georgia, we do meeting of Congress thereafter, the 11th not greatly wonder at the effect which it had Amendment to the Constitution was almost upon the country. Any such power as that unanimously proposed, and was in due course of authorizing the federal judiciary to enteradopted by the Legislatures of the States. This tain suits by individuals against the States had Amendment, expressing the will of the ulti- been expressly disclaimed, and even resented, mate sovereignty of the whole country, superior by the great defenders of the Constitution to all Legislatures and all courts, actually re- whilst it was on its trial before the American versed the decision of the supreme court. It people. As some of their utterances are didid not in terms prohibit suits by individuals rectly pertinent to the question now under against the States, but declared that the Con- consideration, we deem it proper to quote them. stitution should not be construed to import any The 81st number of the "Federalist," written power to authorize the bringing of such suits. by Hamilton, has the following profound The language of the Amendment is that "the remarks: judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign The supreme court had construed the judicial power as extending to such a suit, and its decision was thus overruled. The court itself so understood the effect of the Amend

state.

ment, for, after its adoption, Attorney-General Lee, in the case of Hollingsworth v. Virginia, 3 U. S. 3 Dall. 378 [1: 644], submitted this question to the court, "Whether the Amendment did, or did not, supersede all suits depending, as well as prevent the institution of new suits, against any one of the United States, by citizens of another State?" Tilghman and Rawle argued in the negative, contending that the jurisdiction of the court was unimpaired in relation to all suits instituted previously to the adoption of the Amendment. But, on the succeeding day, the court delivered an unanimous opinion, "that the Amendment being constitutionally adopted, there could not be exercised any jurisdiction, in any case, past or future, in which a State was sued by the citizen of another State, or by citizens or subjects of any foreign state."

This view of the force and meaning of the Amendment is important. It shows that, on this question of the suability of the States by individuals, the highest authority of this country was in accord rather with the minority than with the majority of the court in the decision of the case of Chisholm v. Georgia; and this fact lends additional interest to the able opinion of Mr. Justice Iredell on that occasion. The other justices were more swayed by a close observance of the letter of the Constitution, without regard to former experience and usage; and because the letter said that the judicial power shall extend to controversies "between a State and citizens of another State:" and "between a State and foreign states, citizens or subjects," they felt constrained to see in this language a power to enable the individual citizens of one State, or of a foreign state, to sue another State of the Union in the federal courts. Justice Iredell, on the contrary, contended that it was not the intention to create new and unheard of remedies, by subjecting sovereign States to actions at the suit of individuals (which he conclusively showed was never done before), but only, by proper legis lation, to invest the federal courts with juris

of the public securities of one State to the "It has been suggested that an assignment citizens of another would enable them to prosecute the State in the federal courts for the amount of those securities, a suggestion which the following considerations prove to be with

out foundation:

without its consent.

"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States, and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repeated here. recurrence to the principles there established will satisfy us that there is no color to pretend that the state governments would, by the adoption of that plan, be devested of the privilege of paying their own debts in their own way, free from any constraint but that which flows from the obligations of good faith. The

Α

contracts between a nation and individuals are

only binding on the conscience of the sovreign, and have no pretension to a compulsory force. They confer no right of action independent of the sovereign will. To what purpose would it be to authorize suits against States for the debts they owe? How could recoveries be enforced? It is evident that it could not be done without waging war against federal courts by mere implication, and in dethe contracting State; and to ascribe to the struction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable."

The obnoxious clause to which Hamilton's argument was directed, and which was the ground of the objections which he so forcibly met, was that which declared that "the judicial power shall extend to all controversies between a State and citizens of another State,

and between a State and foreign states, citizens or subjects." It was argued by the opponents of the Constitution that this clause would authorize jurisdiction to be given to the federal courts to entertain suits against a State

adopted by the States? The supposition that it would is almost an absurdity on its face.

brought by the citizens of another State, or of | States: can we imagine that it would have been a foreign state. Adhering to the mere letter, it might be so; and so, in fact, the supreme court held in Chisholm v. Georgia; but looking at the subject as Hamilton did, and as Mr. 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,

The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justiciable which were not known as such at the common law; such, But Hamilton was not alone in protesting for example, as controversies between States against the construction put upon the Consti- as to boundary lines, and other questions adtution by its opponents. In the Virginia con- mitting of judicial solution. And yet the case vention the same objections were raised by of Penn v. Lord Baltimore, 1 Ves. Sr. 444, George Mason and Patrick Henry, and were shows that some of these unusual subjects of met by Madison and Marshall as follows. litigation were not unknown to the courts even Madison said: "Its jurisdiction" [the federal in colonial times; and several cases of the jurisdiction] "in controversies between a State same general character arose under the Artiand citizens of another State is much objected cles of Confederation, and were brought beto, and perhaps without reason. It is not in fore the tribunal provided for that purpose in the power of individuals to call any State into those Articles. 131 U. S. App. 1. The estabcourt. The only operation it can have is that, lishment of this new branch of jurisdiction if a State should wish to bring a suit against a seemed to be necessary from the extinguishcitizen, it must be brought before the federal ment of diplomatic relations between the court. This will give satisfaction to individ- States. Of other controversies between a uals, as it will prevent citizens on whom a State State and another State or its citizens, which, may have a claim being dissatisfied with the on the settled principles of public law, are not It appears to me that subjects of judicial cognizance, this court has this [clause] can have no operation but this often declined to take jurisdiction. See Wis to give a citizen a right to be heard in the fed-consin v. Pelican Ins. Co. 127 U. S. 265, 288, eral courts; and if a State should condescend 289 [32: 239, 242, 243], and cases there cited. to be a party, this court may take cognizance of it." 3 Elliot's Debates, 533. Marshall, in answer to the same objection, said: "With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a State will be called at the bar of the federal court. It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States.

state courts.

But, say they, there will be partiality in it if a State cannot be a defendant-if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to be so, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff." Id. 555.

The suability of a State without its consent was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is hardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone farthest in sustaining suits against the officers or agents of States. Osborn v. Bank of United States, 22 U. S. 9 Wheat. 738 [6: 204]; Davis v. Gray, 83 U. S. 16 Wall. 203 [21: 447]; Board of Liquidation v. McComb, 92 U. S. 531 [23: 623]; United States v. Lee, 106 U. S. 196 [27: 171]; Poindexter v. Greenhow, 109 U. S. 63 [27: 860]; Virginia Coupon Cases, 114 U. S. 269 [29: 185]. In all these cases the effort was to show, and the court held, that the suits were not against the State or the United States, but against the individuals; conceding that if they had been against either the State or the United States, they could not be maintained.

Mr. Webster stated the law with precision in his letter to Baring Brothers & Co. of October 16, 1839. 6 Webster's Works, 537. "The security for state loans," he said, "is the plighted faith of the State as a political community. It rests on the same basis as other contracts with established governments, the same basis, for example, as loans made by the United States under the authority of Congress; that is to say, the good faith of the government making the loan, and its ability to fulfill its engagements."

It sems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. Can we suppose that, when the 11th Amendment was adopted, it was understood to be left open for citizens of a State to sue their own State in the federal courts, whilst the idea of suits by citizens of other States, or of foreign states, was indignantly repelled? Suppose that Con- In Briscoe v. Bank of Kentucky, 36 U. S. 11 gress, when proposing the 11th Amendment, Pet. 257, 321 [9: 709, 734], Mr. Justice McLean, had appended to it a proviso that nothing delivering the opinion of the court, said: therein contained should prevent a State from "What means of enforcing payment from the being sued by its own citizens in cases arising State had the holder of bill of credit? It is under the Constitution or laws of the United I said by the counsel for the plaintiffs that he

could have sued the State. But was a State | lowed to proceed. In exercising this power liable to be sued? No sovereign State the State violated no contract with the parties.” is liable to be sued without her consent. The same doctrine was held in Memphis & C. Under the Articles of Confederation, a State R. Co. v. Tennessee, 101 U. S. 337, 339 [25: could be sued only in cases of boundary. It 960, 961]; South & N. A. R. Co. v. Alabama, is believed that there is no case where a suit 101 U. S. 932 [25: 973], and Er parte Ayers, has been brought, at any time, on bills of credit 123 U. S. 443, 505 [31: 216, 229]. against a State; and it is certain that no suit could have been maintained on this ground prior to the Constitution."

cuted against the State whose judgment is so an examination of the reason or expediency far re-examined. Nothing is demanded from of the rule which exempts a sovereign State the State. No claim against it of any descrip- from prosecution in a court of justice at the tion is asserted or prosecuted. The party is suit of individuals. This is fully discussed by not to be restored to the possession of any-writers on public law. It is enough for us to thing. He only asserts the constitu- declare its existence. The legislative departtional right to have his defense examined by ment of a State represents its polity and its that tribunal whose province it is to construe will, and is called upon by the highest dethe Constitution and laws of the Union. mands of natural and political law to preserve The point of view in which this writ justice and judgment, and to hold inviolate the of error, with its citation, has been considered public obligations. Any departure from this uniformly in the courts of the Union has been rule, except for reasons most cogent (of which well illustrated by a reference to the course of the Legislature, and not the courts, is the this court in suits instituted by the United judge), never fails in the end to incur the States. The universally received opinion is, odium of the world, and to bring lasting in that no suit can be commenced or prosecuted jury upon the State itself. But to deprive the against the United States; that the Judiciary Legislature of the power of judging what the Act does not authorize such suits. Yet writs honor and safety of the State may require, of error, accompanied with citations, have uni- even at the expense of a temporary failure to formly issued for the removal of judgments in discharge the public debts, would be attended favor of the United States into a superior with greater evils than such failure can cause. court. . It has never been suggested The judgment of the Circuit Court is affirmed. that such writ of error was a suit against the Mr. Justice Harlan, concurring: United States, and therefore not within the jurisdiction of the appellate court.'

But I cannot

I concur with the court in holding that a After thus showing by incontestable argu- citizens is not one to which the judicial power suit directly against a State by one of its own ment that a writ of error to a judgment re- of the United States extends, unless the State covered by a State, in which the State is nec-itself consents to be sued. Upon this ground essarily the defendant in error, is not a suit commenced or prosecuted against a State in alone I assent to the judgment. the sense of the Amendment, he added that give my assent to many things said in the opinif the court were mistaken in this, its error in Chisholm v. Georgia do not meet my ap ion. The comments made upon the decision did not affect that case, because the writ of error therein was not prosecuted by "a citizen of another State" or "of any foreign state,' and so was not affected by the Amendment; but was governed by the general grant of ju dicial power, as extending to all cases arising under the Constitution or laws of the United States, without respect to parties." Page 412 [293].

It must be conceded that the last observation of the chief justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extrajudicial, and, though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. With regard to the question then before the court, it may be observed that writs of error to judgments in favor of the crown, or of the State, had been known to the law from time immemorial, and had never been considered as exceptions to the rule that an action does not lie against the sovereign.

To avoid misapprehension it may be proper to add that although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the State consents to be sued, or comes itself into court, yet where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts, may be judicially resisted; and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment.

proval. They are not necessary to the determination of the present case. Besides, I am based upon a sound interpretation of the Conof opinion that the decision in that case was stitution as that instrument then was.

THE STATE OF NORTH CAROLINA
and WILLIAM P. ROBERTS, Audit-
or of the STATE OF NORTH
CAROLINA, Appts.,

NOTE. As to when States can be sued; suits by It is not necessary that we should enter upon | States.-see note to Hans v. Louisiana, ante, p. 842.

On certificate of division of opinion. Decree | O'Keefe, 78 U. S. 11 Wall. 178 (20: 131); Sadreversed and cause remanded with instructions ler's Case, 4 Coke, 54b. to dismiss the suit.