adjudged that a state was suable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared so great, that Congress, in 1794, proposed to the states an amendment to that part of the Constitution, and it was subsequently amended in this particular, under the provision in the fifth article. It was declared by the amendment, (b) that the judicial power of the United States should 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 state. (c) The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers (d) They retain the capacity to sue a state as it was originally granted by the Constitution; and the Supreme Court has original jurisdiction in the case of suits by a foreign state against one of the members of the Union. (e) 1 (x)

(b) Amendments, art. 11.

(c) As the United States have no existence, as a political ideal being, except under the organization of the Constitution and laws of the United States, it is assumed as a principle flowing from the sovereignty of the United States, that the officers of the government are not subject to suits for acts in the regular discharge of their official duties. Opinions of the Attorneys-General, i. 457.

(d) The Cherokee Nation v. Georgia, 5 Peters, 1; New Jersey v. New York, ib. 284. A mandamus is a suit within the meaning of the Constitution, for it is a litigation of a right in a court of justice, seeking a decision. Weston v. City Council of Charleston, 2 Peters, 449; Holmes v. Jennison, 14 id. 564.

(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 Govern

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

(x) A suit lies by a foreign sovereign in either a Federal or State Court to protect the property of his nation; and such suit is not abated by his death or deposition while it is pending. The Sapphire, 11 Wall. 164; Wisconsin v. Pelican Ins. Co.,

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;

127 U. S. 265, 290; King of Prussia v. Kuepper, 23 Mo. 553. A foreign sover. eign may be required, as a non-resident plaintiff, to give security for costs when suing upon a commercial transaction. The Beatrice, 36 L. J. Adm. 10; Republic of

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

ment 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. Mary. land, 3 Hall, L. J. 128; United States v. Wells, 2 Wash. 161; Op. Att.-Gen. ii. 967, 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 appli cation 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

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 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. Otto

Costa Rica v. Erlanger, 3 Ch. D. 62. In New York, a foreign independent government, which sues as a plaintiff there, may be required to give security for costs as a non-resident, under the Code of Civil Proc. § 3268. Republic of Honduras v. Soto, 112 N. Y. 310; Republic of Mexico v. De Arrangois, 3 Abb. Pr. 470. As to the status of the Pope as a foreign sovereign, see 21 Journal du Droit Int. 835.

A foreign government cannot be coerced by suing its minister or agent. Manning v. Nicaragua, 14 How. Pr. 517. And the

man 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. [Suits may be maintained by foreign sov ereigns in the United States courts wher ever they have a cause of action of a civil nature. The Sapphire, 11 Wall. 164. See further, Republic of Peru v. Weguelin, 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

former president of a foreign republic cannot be sued here, for sovereign acts of his government. Hatch v. Baez, 7 Hun, 596. But a Court of Chancery may administer a trust fund in its custody, although a foreign sovereign who is interested in it may not think fit to come before the Court in a suit relating thereto. Morgan v. Larivière, L. R. 7 H. L. 423; L. R. 7 Ch. 550. The existence of the trust must not be in dispute; for if this is denied with respect to funds in the possession of an agent of the foreign government within the jurisdiction, the suit

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

case of the late Bank of the United States, who claimed damages by way of set-off 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, 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

to obtain 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. —- B.]

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

cannot proceed in the absence of such government. Wright v. Mills, 63 L. T. 186. See Gladstone v. Ottoman Bank, 1 H. & M. 505; Twycross v. Dreyfus, 5 Ch. D. 605. The negotiation by a government of a loan in a foreign country does not introduce into the contract the peculiar laws of such country. Smith v. Weguelin, L. R. 8 Eq. 212; Goodwin v. Robarts, 1 App. Cas. 476; L. R. 10 Ex. 76, 337. A suit cannot be maintained in England upon the bonds of a foreign government. Ibid.; Crouch v. Credit Foncier of England, L. R. 8 Q. B. 374; Twycross v. Dreyfus, 5 Ch. D. 605.

United States. Hill v. United States, 9 How. 386; United States v. McLemore, 4 How. 286; The Siren, 7 Wall. 152, 254; Case v. Terrell, 11 Wall. 199; iii. 171, n. 1. And a state may withdraw its consent after a suit has been begun against it. Beers v. Arkansas, 20 How. 527. [See 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 cers of the government in possession of property used for public purposes, and held only for the United States, and

The only exceptions to the rule that a foreign sovereign or State cannot be sued in the English courts, are: (1) When he sues as plaintiff, he is liable, when just, to respond upon the defendant's counterclaim or cross-action; (2) notice may be ordered to him of a suit against funds in the hands of third parties within the jur isdiction. Strousberg v. Republic of Costa Rica, 44 L. T. (N. s.) 199. The property of a foreign sovereign cannot be reached by a suit in rem. The Constitution, 4 P. D. 39; The Parlement Belge, 5 P. D. 197. In The Charkieh, L. R. 4 Adm. & Ecc. 59, it was said that a sovereign who as [369]

* 298

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

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 admiralty 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

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 Jus tices Woods and Bradley, and Waite, C. J., holding that the court had no such

sumes the character of a trader, waives his privilege; but this view will not be taken in the Courts of the government against which the suit is brought. Troy & Greenfield Railroad v. Commonwealth, 127 Mass. 43; United States v. Clarke, 8 Pet. 436; Curran v. Arkansas, 15 How. 304; The Davis, 10 Wall. 15; Carr v. United States, 98 U. S. 433; Long v. The Tampico, 16 Fed. Rep. 491. An assignment of a claim against a foreign government, made before it is established, will be upheld in Equity. Peugh v. Porter, 112 U. S. 737.

A foreign sovereign, residing in England, cannot be sued there against his will for breach of a contract of marriage which he has there entered into under an

jurisdiction. Chesapeake, &c., R. R. Co. 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, 108 U. S. 436. — B. ]

Court of Claims. (x) — It was not until

assumed name. A certificate from the Foreign or Colonial office, as the case may be, is conclusive as to such sovereign's status. Mighell v. Sultan of Johore, [1894] 1 Q. B. 149; see 21 Journal du Droit Int. 576; Hettihewage Siman Appn v. Queen's Advocate, 9 App. Cas. 571, 588.

(x) By the "Bowman Act" (22 St. at L. 485) claims pending in Congress, which involve the investigation of facts, and claims or matters pending in any executive department which may involve contraverted questions of law or fact, may be transmitted to the Court of Claims for adjustment. See Taylor v. United States, 25 Ct. Cl. 75; Moore v. United States, id. 82; Conard v. United States, id. 433. The "Tucker Act" (Mar. 3, 1887, 24 St.

that "the judicial power of the United States should be vested in one Supreme Court, and in such inferior courts as Congress

of admiralty, or The jurisdiction

A state cannot be

that it was not a case where the property was in the custody of a court brought within its jurisdiction, and in possession of any private person. would seem to have been impliedly admitted in the latter case. 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, 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.

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

at L. 505) defines the jurisdiction of this court. See this act fully annotated in Gould & Tucker's Notes on the U. S. Statutes, p. 353. See also United States v. Tinsley, 68 Fed. Rep. 433; Cole v. United States, 29 Ct. Cl. 47. The French Spoliation Claims were referred to this court by 23 St. at L. 283; also claims for depredations of friendly Indians, by 26 St. at L. 851. The claims of the Pottawatomie Indians were also referred to the Court of Claims by 23 Stat. at L. 372; 26 id. 1021.

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; 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

After the decision in Bonner v. United States, 9 Wall. 156, that the Court of Claims had no jurisdiction of a suit founded upon equitable considerations, the Act of Mar. 3, 1887 (24 St. at L. 505) was passed, allowing suits against the government in that court either at law, in equity, or admiralty, and also allowing suits on such claims, if not exceeding $1,000 in value for the district courts, and $10,000 in value for the circuit courts, to be brought in the district where the claimant resides. See Jones v. United