vision in the fifth article. It was declared by the amendment, a 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.b The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers.c 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.d

* Amendments, art. 11.

b 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, vol. i. 457.

The Cherokee Nation v. Georgia, 5 Peters' U. S. Rep. 1. New-Jersey v. New-York, ibid. 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 of Charleston, 2 Peters' R. 449. Holmes v. Jennison, 14 Id. 564. a 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' Cir. Rep. 276. The Colombian Government v. Rothschild, 1 Simons, 104. King of Spain v. Machado, 4 Russell, 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, Ch. J., in Cohens v. Virginia, 6 Wheaton, 411, 412. United States v. Clarke, 8 Peters, 444. United States v. Barney, C. C. Maryland, 3 Hall's L. J. 128. United States v. Wells, 2 Wash. C. C. R. 161. Opinions of the Attorneys-General, vol. 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 application to congress. Act of congress, March 3d, 1797, c. 74. sec. 3, 4. United States v. Wilkins, 6 Wheaton, 135. 143. Walton v. United States, 9 Wheaton, 651. United States v. Mac Daniel, 7 Peters' U. S. Rep. 16. United States v. Ringgold, 8 ibid. 163. United States v. Clarke, 8, ibid. 436. Robeson, 9 Peters, 319. Same v. Hawkins, 10 ibid. 125. Metropolis, 15 Peters' U. S. Rep. 377. In the 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. Opinions of the Attorneys-General, vol. ii. 964. 982. But in the same case of the Bank of the United States v. The United States, in 2 Howard's U. S. Rep. 711, the United States sued the bank for VOL. I. 21

United States v. Same v. Bank of the

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

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 endorsee, and presented at Paris for payment, and protested for non-payment, and taken up by a banking-house in Paris, supra protest, for the honour of the Bank of the United States, which was the first endorsor. 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 any thing 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 Madrazo, 7 Peters' U S. Rep. 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 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's Mich. Ch. R. 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. (1) 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

(1) In the Pennsylvania Law Journal, Dec. 1847, p. 97, a case is reported which occurred in the Civil Tribunal of the Seine. A Frenchman attached merchandize of the Pacha of Egypt on a claim made under a contract entered into with an agent of the Pacha; the court declared that it had no jurisdiction over foreign governments, except in the case of immovable property, and that claim was on a contract made with the Egyptian government. See, also, Munden v. Duke of Brunswick, 10 Ad. & EU. N. S. 656.

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

*(1.) The Supreme Court was instituted by the con- *298 stitution, which ordained 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. 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 jurisdietion of suits, or proceedings against ambassadors, or other public ministers, or their domestics, or domestic servants, as

Supreme

Court.

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.

Art. 3. sec. 1.

b Acts of Congress of April 29th, 1802, February 24th, 1807, sec. 5, May 4th, 1826, January 21st, 1829, sec. 1, 2, March 3d, 1837, c. 24, and of 17th June, 1844,

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. The Su

a

preme Court was also clothed by the constitutionb "with *299 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 1789, appeals lie to this court from the circuit courts, and the courts of the several states. Final judgments and decrees, in civil actions and suits in equity, in the circuit courts of the United States, whether brought there by original process, or removed there from the state courts, or by appeal from the district courts, in cases where the matter in dispute exceeds two thousand dollars, exclusive of costs, may be re-examined, by writ of error, and reversed or affirmed, in the Supreme Court.c (1) Final judgments and decrees in the circuit courts, in cases of admiralty and maritime jurisdiction, and of prize or no prize, where the matter in dispute exceeds two thousand dollars,

Act of Congress, September 24th, 1789, sec. 13.

b Art. 3. sec. 2.

Act of Congress of September 24th, 1789, sec. 22. In the cases of Gordon v. Ogden, and Smith v. Honey, 3 Peters, 33. 469, it was decided, that whatever may have been the amount claimed by the plaintiff in the court below, if the judgment in his favour be less than $2,000, and the writ of error has been sued out by the defendant below, the court has not jurisdiction; but if the writ of error be brought by the plaintiff below, and the amount claimed in his declaration exceeded $2,000, the court has jurisdiction, because, if the judgment be reversed, he may recover what he claims.

(1) An act of Congress of May 31, 1844, gives appellate jurisdiction to the Supreme Court, in revenue cases, without regard to the sum in dispute, provided the judgment appealed from was rendered in a Circuit Court of the United States. The United States v. Carr, 8 How. R. 1. If by definite computation it can be shown that a recovery cannot exceed two thousand dollars, no appeal can be had. Sewall v. Chamberlain, 5 How. R. 6. The Supreme Court has no ap pellate jurisdictiction when the Circuit Court refuses to grant a writ of habeas corpus, prayed for by a father to take his child out of the custody of the mother. The value of the subject matter in dispute, is in its nature incapable of being estimated in money, and the rule of jurisdiction, therefore, cannot be applied. Barry v. Mercein, 5 How. R. 103. See, also, In the matter of Metzger, 5 How. R. 176. In the latter case, it was held, that where a District Judge, sitting at Chambers, had decided that there was sufficient cause for the surrender of a person claimed by the French government, and had committed him to custody to await the order of the President of the United States, the Supreme Court had no jurisdiction to issue a habeas corpus for the purpose of reviewing that decision. But see, In the matter of Metzger, 1 Barb. S. C. R. 248, where the authority of the U. S. District Judge was denied, and the prisoner discharged by a state judge.

exclusive of costs, may be reviewed on appeal in the Supreme Court;a ;a and in admiralty and prize cases, new evidence is admitted to be receivable on appeal in the Supreme Court.b This admission is conformable to the doctrine and usage of appellate courts of admiralty, permitting the parties, upon the appeal, to introduce new allegations and new proofs, and to add new counts to the libel. So, also, a final judgment or decree, in any suit in the highest court of law or equity of a state, may be brought up on error in point of law, to the Supreme Court of the United States, provided the validity of a treaty, or statute of, or authority exercised under the United States, was drawn in question in the state court, and the decision was against that validity; or provided the validity of any state authority was drawn in question, on the ground of its being repugnant to the constitution, treaties, or laws of the United States, and the decision was in favour of its validity; or provided the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, was drawn in question, and the decision was against the title, right, privilege or *exemp- *300 tion, specially claimed under the authority of the Union. Upon error from a decision in a state court, no other error can be assigned or regarded, than such as appears upon the face of the record, and immediately respects the ques

Though seamen may sue jointly for wages in the admiralty, under shipping articles for the same voyage, their contracts are treated as distinct; and though several claims of this description contained in one suit, amount in the aggregate to more than $2,000, that is not sufficient to give jurisdiction on appeal to the Supreme Court. Oliver v. Alexander, 6 Peters, 143. Conkling's Treatise, 2d edit. 32.

b Act of Congress, March 2d, 1803, sec. 11. It was decided, in United States v. Goodwin, 7 Cranch, 108, that in civil cases at law, the judgment of the Circuit Court is final, where the cause is removed by writ of error from the District Court, and no writ of error lies therefrom in such cases to the Supreme Court of the United States. See 2 Wheaton R. 395. 12 Peters' R. 143. S. P. But by the act of congress of July 4th, 1840, c. 20. sec. 3, this distinction was abolished, and writs of error now lie to the Supreme Court from all judgments of a Circuit Court, in cases brought there by writs of error from the District Court, in like manner as if the suit had been originally brought in the Circuit Court.

The Marianna Flora, 11 Wheaton, 28. Foster v. Gardiner, C. C. Mass. Amer. Jur. vol. ii. p. 21.

Act of Congress of September 24th, 1789, sec. 25.