Governor of Georgia v. Madrazo. 1 P. 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 information, 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 [* 128 ] libel sustained in the 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 1789,1 the circuit court is required to go on and make such decree as this 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 offence by introducing them into the country, Madrazo was not privy to that offence, 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? 11 Stats. at Large, 85. Governor of Georgia v. Madrazo. 1 P. 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 citzens 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 supreme court shall have [* 129 ] *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 jurisdic tion 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 Governor of Georgia v. Madrazo. 1 P. 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 * case [* 130 ] 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 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 not accept it, and authorized their executive to assert the rights derived under the law of congress. cases. An examination of the exceptions in the 13th 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, is not restricted to or limited by any relation or description Governor of Georgia v. Madrazo. 1 P. 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 influ[*131] ence on the question of jurisdiction. I think, however, that it appears 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 docket of this court as a party defendant; and, for the same reason, although not suable originally, yet upon a judgment obtained, injunctions have been granted against parties who could not otherwise have been made defendants; as, for example, the United States. The thing is unavoidable—it is incident to the right of appeal. Justice could not be administered without it. There would be no reciprocity the law would operate unequally, and to the prejudice of the citizen. There is no compulsory process used to produce this reversed, I may say, nominal, state of parties. The cause is removed by a citation, or other less offensive process, and the party appears in the superior court if he will—if not, the cause is disposed of without an appearance. So much for the information, and the appeal from the district court upon it. We will now consider the rights of the State, in the relation in which it stood to Madrazo's libel. I am considering the State, and not the officers of the State, as the real party to the record. When Madrazo's libel was filed, the governor's information was pending; and as Madrazo's libel sets out the seizure and delivery of the slaves to the executive of Georgia, and the claims advanced to the proprietary interest therein; it was properly considered in the Governor of Georgia v. Madrazo. 1 P. district court in connection with the information, and in the double aspect of a claim and libel. In the case of The Antelope, the cross libel of the Portuguese was treated, reciprocally, as claim and libel. Considered in the relation of a claim to the information, it is impossible to deny that, if the State rightly preferred the information, it must have been bound by the decisions, both of the district court and of the tribunal to which an appeal lay from the decision of the district court upon that information, as regarded the rights of the claimants. •And if we consider Madrazo's libel in the aspect of a suit [132] in the admiralty, it appears to me impossible to assign a sufficient reason why the State should not be equally bound. The property or possession of the State had been acquired under a capture at sea a maritime tort. It was, therefore, clearly a case of admiralty jurisdiction. Where, then, is the limit to this branch of the jurisdiction of the district court? No personal relation, description, or character imposes any such limit. The grant of jurisdiction to the United States, and by the United States to the district court, is without restriction, and it would be singular if a State should be precluded from the right of appearing to assert its rights before that tribunal. Suppose the case of a capture of a library shipped to a State, and a recapture and libel for salvage; surely, in some form or other, the State must have a hearing. There is nothing compulsory upon the State the right may be abandoned if it will; but, after preferring a claim, will it be contended that it may withdraw itself from the contest under an assertion of state immunities, to the prejudice of individual right? This is not a new question in the admiralty it is considered by Godolphin, who observes "that for the same party in the same cause to surmise and move for a prohibition against that jurisdiction to which himself had formerly submitted, and in a cause which, by the libel, appears not other than maritime, seems quite beside the rule and practice of the law." Jurisd. of the Adm. pp. 116, 117, and the two adjudged cases of Jennings and Audley, Brownl. pt. 2, p. 30, and Baxter and Hopes,. Ibid., which he cites, do fully establish that, in all cases where the defendant admits the jurisdiction of the admiralty court by pleading, then prohibition shall not be granted, if it do not appear that the act was done out of the jurisdiction." 66 Now, in this case the State appeared, and claimed to the monition without protest. In the admiralty, a claimant is an actor; and, had the decision of the district court been affirmed, the State would have had the full benefit of this interposition as a party. And again, at a subsequent period, the State voluntarily surrendered the res to the circuit court, and took it out again on stipulation, &c., and, had not |