Statement of the Case.

of what is known as Greer County, it is hereby expressly provided that this act shall not be construed to apply to said Greer County until the title to the same has been adjudicated and determined to be in the United States; and in order to provide for a speedy and final judicial determination of the controversy aforesaid, the Attorney General of the United States is hereby authorized and directed to commence in the name and on behalf of the United States, and prosecute to a final determination, a proper suit in equity in the Supreme Court of the United States against the State of Texas, setting forth the title and claim of the United States to the tract of land lying between the North and South Forks of the Red River where the Indian Territory and the State of Texas adjoin, east of the one hundredth degree of longitude, and claimed by the State of Texas as within its boundary and a part of its land, and designated on its map as Greer County, in order that the rightful title to said land may be finally determined; and the court, on the trial of the case may, in its discretion, so far as the ends of justice will warrant, consider any evidence heretofore taken and received by the Joint Boundary Commission under the act of Congress approved January thirty-first, eighteen hundred and eighty-five; and said case shall be advanced on the docket of said court, and proceeded with to its conclusion as rapidly as the nature and circumstances of the case permit."

The relief sought by the bill was the "determining and settling the true boundary line between the United States and the State of Texas, and to determine and put at rest questions which now exist as to whether the Prairie Dog Town Fork or the North Fork of Red River, as aforesaid, constitutes the true boundary line of the treaty of 1819."

The State of Texas answered and demurred to the bill assigning four causes of demurrer, only three of which were insisted upon at the argument, viz.:

"1. That it appears by the complainant's own showing by the said bill that she is not entitled to the relief prayed by the bill against this defendant, in that complainant seeks by her said bill to obtain from this court a decree judicially settling

Statement of the Case.

and determining the true boundary line between the United States of America and the State of Texas, which question is political in its nature and character and not susceptible of judicial determination by this court in the exercise of its jurisdiction as conferred by the Constitution and laws of the United States.

"2. That it appears by the terms of complainant's bill that this is a suit by the United States of America against the State of Texas, and it is not competent, under the Constitution. and laws of the United States of America, for said United States of America to sue one of its component States in her own courts. And especially is it true that said United States is not empowered under her Constitution and laws to sue the State of Texas, in a court of the United States, for the recovery of a right mutually claimed by the United States of America and the State of Texas, to wit, the ownership of certain designated territory, and the establishment of the boundary line between the respective governments."

"4. That this court sitting as a court of equity has no jurisdiction to hear and determine this controversy between complainant and defendant, because, as appears from complainant's bill and amended bill, complainant's cause of action is legal and not equitable, and that it is a suit or action to recover certain real property claimed by complainant and fully described in the bill of complaint; and if complainant has any right to recover, such right must be asserted, if at all, in a court of law and not in a court of equity as herein attempted. And this defendant further says that so much of the Act of Congress of May 2, 1890, under which this suit is brought, and which authorizes and directs the Attorney General of the United States to commence in this court in the name and on behalf of the United States and to prosecute to a final determination a proper suit in equity setting forth the title and claims of the United States to the tract of land in controversy, is unconstitutional and void in this, that it is not competent under the Constitution of the United States for the Congress of the United States to declare that a suit at law shall be a suit in equity, and that legal rights shall be tried

Argument for Defendant.

and determined in the courts of the United States as if they were equitable rights."

Mr. A. II. Garland for the State of Texas, in support of the demurrer. Mr. John Hancock, Mr. George Clark, Mr. C. A. Culberson and Mr. H. J. May were with him on the brief.

I. Before considering the demurrers it seems to us proper that the preliminary question should be called to the attention of the court whether the State of Texas is suable in this cause. As a State cannot be sued without its express consent the inquiry is whether the defendant has authorized this suit to be instituted and prosecuted against it. In our opinion it is not a matter of choice of tribunals or expediency of interposing the privilege of exemption from suit, but it involves the jurisdiction of the court, and upon it depends the validity of any decree which may be rendered. Rhode Island v. Massachu setts, 12 Pet. 657.

At no time has the State of Texas expressed its consent to this suit. Neither the executive nor any other officer has authority to consent that the State should be sued, and it does not appear that such authority has been conferred upon the governor by statute: so that, although an appearance has been entered, the question is still open whether the State is suable.

We do not overlook the settled rule that in cases in which a State shall be a party, in which this court has original jurisdiction, the adoption of the Constitution gave the consent of the States to be sued. Rhode Island v. Massachusetts, 12 Pet. 657; in this case, however, as we shall hereafter attempt to show, this provision of the Constitution is inapplicable. United States v. Ferreira, 13 How. 40, and note by Chief Justice Taney on page 52; Florida v. Georgia, 17 How. 478.

II. The first demurrer suggests not only that the question is in its nature political but that, contrary to the rule governing controversies between two States of the Union, it is such a political question that this court cannot judicially determine it in the exercise of the jurisdiction conferred by the Constitu

Argument for Defendant.

tion. That a controversy respecting the boundary between two independent nations is a political and not a judicial question is well settled. A question like this respecting the boundaries of nations, is, as has been truly said, more a political than a legal question; and in its discussion the courts of every country must respect the pronounced will of the legislature. “The judiciary is not that department of the government to which the assertion of its interests against foreign powers is confided." Foster v. Neilson, 2 Pet. 253, 306; Cherokee Nation v. Georgia, 5 Pet. 1; United States v. Arredondo, 6 Pet. 691, 710; Garcia v. Lee, 12 Pet. 511.

This rule undoubtedly applied to the treaty of 1819 between the United States and Spain, to that of 1832 between the United States and Mexico and to that of 1838 between the United States and the Republic of Texas, when they were respectively ratified, and no reason is perceived why, after Texas was admitted into the Union, a different principle should control. The several treaties remain intact and are the contracts which define and regulate the relations of the contracting powers. Wilson v. Wall, 6 Wall. 83, 87.

So, also, the method or tribunal provided by the treaty for the settlement of differences arising thereunder must be resorted to; and as the treaties under consideration stipulate that the boundary shall be determined and marked by commissioners appointed by the respective powers, certainly not a judicial tribunal, it is evident that in its inception the question was political, to be adjusted according to the course of nations, and so remains. Green v. Biddle, 8 Wheat. 1; United States v. Ferreira, 13 How. 40.

But if the court shall be of opinion that this controversy, coming over from a time when the two governments were independent, is not a political question to be determined upon principles of law applicable to nations, but is analogous to boundary differences between States of the Union of which the court has original jurisdiction, (Florida v. Georgia, 17 How. 478; Rhode Island v. Massachusetts, 12 Pet. 657; Alabama v. Georgia, 23 How. 505, 510; Virginia v. West Virginia, 11 Wall. 39;) then it is submitted that the judicial power of the

VOL. CXLIII-40

Argument for Defendant.

United States, and especially the original jurisdiction of this court, does not extend to controversies between the United States and an individual State.

III. As to the contention embodied in the second ground of demurrer, the Constitution provides that the judicial power shall extend to controversies to which the "United States shall be a party; to "controversies between two or more States;" "between a State and citizens of another State," and "between a State or the citizens thereof, and foreign States, citizens or subjects." The Supreme Court, by the clause immediately following, is given original jurisdiction only in "cases affecting Ambassadors, other public ministers and consuls, and those in which a State shall be a party." It is to be noticed that wherever a State is mentioned in the clause declaring the extent of the judicial power, the opposite party to the controversy is also mentioned and in no instance does it include the United States. In other words, the parties with whom the separate States can have legal controversies cognizable in the courts of the United States by reason of the parties thereto, are distinctly named and all others are necessarily excluded. Keeping in view the Eleventh Amendment, it has been justly said, so far as the present question is concerned, that the controversies over which the United States courts are given jurisdiction are "those to which the United States might be a party; those to which a State of the Union might be a party, where the opposite party was another State of the Union." 2 Curtis Hist. Const. 444.

The clause establishing the judicial power is arranged by subjects and parties, carefully and accurately grouped, and the cases in which the United States shall be a party are distinctly separated from those in which a State may be. The cases of which this court has original jurisdiction are defined alone by reference to the parties and only two classes of cases are included, namely: those affecting ambassadors, other public ministers and consuls, and those in which a State, in cases over which the judicial power is by the preceding clause extended, shall be a party. In all the other cases mentioned the jurisdiction is declared to be appel