SUPREME COURT OF THE UNITED STATES.

First. Can a State of this Union implead an- | Mass., 43; State v. Leckie, 14 La. Ann., 651; OCT. TERM, other State, in this court, for a money demand? Swann v. Buck, 40 Miss., 268; Bank v. Hast The case of thisholm v. Ga., 2 Dall., 419, cer-ings, 1 Walk. (Mich.), 9; R. R. Co. v. Alabama, tainly decided that the Constitution included 101 U. S., 832 (XXV., 973); Pengree v. Coffin, money demands, among those which would con- 12 Gray, 288. stitute a cause of action in this court, against a State.

Second. The conventions or agreements of See, also, Vanstophorst v. Md.. 2 Dall., 401; create no juridical relation between the parties, one of the States of the Union with individuals, Oswald v. N. Y., 2 Dall., 401, 402, 415; Gray-nor a juridical obligation. The immunity of son v. Va., 3 Dall., 320; Hollingsworth v. Va., 3 Dall., 378; Huger v. S. C., 3 Ďall., 339; Cutting v. S. C., 2 Dall., 415, note; N. Y. v. Conn., 4 Dall., 1.

Second. The assignment by the citizens of New York to the State of New York, of the money demand, is a valid transfer, according to the laws of the place where the assignment was made.

The demand being thus vested in the State, carries with it the right to demand payment and to give an acquittance when payment is made. If it may demand payment, it may follow up the demand by suit, unless there be some positive prohibition to sue.

The motive of the purchase or assignment is not material, unless made so by positive law. Third. The real ground, however, of the present suit is the right and duty of New York, as a sovereign State, sovereign in all things save as subordinated to the Union by the federal compact, to assert the rights of her citizens, when they have been despoiled by another State, and there are no other means of redress.

"The right of interference on the part of the State, for the purpose of enforcing the performance of justice to its citizens from a foreign State, stands upon an unquestionable foundation, when the foreign State has become itself the debtor of these citizens."

Phill. Int. Law, 2d Lond. ed. Vol. 2, p. 8; 4 Hen. 4, ch. VII; French Ordinance de la Marine, of 1861; Grotius, book 3, ch. 2, sec. 5, subd., 2; Vatt., book 2, ch. 18, p. 347, Chitty's ed. with Ingersoll's Notes, 1869; Rives' Life and Times of Madison, Vol. I, p. 564; Vol. 2, p. 41; Manning Law Nat., Amos' ed., 75, p. 150; Twiss, Vol. 2, sec. II referring to Grotius, book 2, p. 2, sec. 14; Puff., book 1, p. 13, sec. 10; Vatt., book 2, p. 342.

Such, were it not for the Federal Constitution, would have been the rights and the remedies for their enforcement, on the part of New York against Louisiana. Our contention is, that in their stead, under the Constitution, the right of New York to demand of Louisiana the fulfill ment of her obligation, to pay her debts to the citizens of New York, exists as fully as before, and that in place of negotiation, arbitration, embargo, reprisal, or war, as the means of enforcing the right, there is substituted an orderly and peaceful litigation in this Supreme Court of the Union.

Messrs. John A. Campbell and J. C. Egan, Atty-Gen. of Louisiana, for respondent:

the State from suit or claim in the courts of the United States, in her own courts, or elsewhere, leaves her conventions or agreements without other than moral sanctions.

Cong., 1795, pp. 13, 62; 6 Webster, Works, 537; Federalist No. 81; Hamilton, Rep. Annals of 1 Calhoun's Works, 260-263; Crouch v. Cred. Fon., L. R., 8 Q. B., 384; 1 Aust. Juris., 277; U. S. v. Bank of U. S., 5 How., 382; Sturges v. 42 Dalloz, Jurisp. Gen. Tresor public, No. 1105; Crowninshield, 4 Wheat., 122; Dartmouth Coll. v. Woodward, 4 Wheat., 518; Ogden v. Saunders, 12 Wheat., 213.

The Roman jurists distinguished between they gave an admonition that they should not public conventions and private contracts, and and principles applied to them. be confused, and that different considerations

is to bring suits here in respect to controversies Third. The faculty conferred upon the State with other States of the Union, or with citizens of other States. United States and to all its citizens. ControverIt is a faculty denied to the to the court as the ground of jurisdiction over sies between two or more States must be shown the cause. and particular. The controversy must exist beThe grant is special, circumscribed tween the States and not others. Controversies between States have but little similarity to those public relations and intercourse, and where their between individuals. They arise out of their corporate or political rights are involved. the Articles of Confederation, and in the precedents shown by the records of this court, the In only causes of controversy known arise out of unascertained or disputed boundaries and jurisdiction.

12 Pet., 657; Fla. v. Ga., 17 How., 478 (58 U. N. J. v. N. Y., 5 Pet., 284; R. I. v. Mass., S., XVI., 556); S. C. v. Ga., 93 U. S., 4(XXIII., S., XV., 181); Ala. v. Ga., 23 How., 508 (64 U. 782); Mo. v. Ia., 7 How., 660.

rious controversy between the States, is estab-
The fact, that this is no other than a vica-
lished. New York is a volunteer to maintain
her citizen in his claim by lending to him her
name for use in this court.

State had full knowledge that no suit could be
Fourth. Every holder taking the bonds of the
maintained in this court or in any other, in case
of a failure to make any payment. No suit has
been commenced against the State, except un-
and New York in this court.
der the Acts procured from New Hampshire

First. The judicial power of the United States emption and immunity from suit, which HamFifth. The States never parted with the exdoes not extend to any suit commenced or pros-ilton testifies every State was possessed of and ecuted by any individual or corporation against one of the States of this Union. No court of the United States has rendered a final judgment in any such suit, since the Constitution has existed.

Federalist, No. 81; Briggs v. Light-Boats, 11 Allen, 157; R. R. Co. v. Commonwealth, 127 658

enjoyed at the time the Constitution was framed;
there was no intent on their part to abdicate or
relinquish that privilege of sovereignty; and
when it was invaded by a responsible authority,
there been a grant of such a jurisdiction to this
there was a successful resistance to it.
court, it might have afforded some sanction to

Had

the argument that the States were municipali- | and the said Attorney-General shall pay to the ties subject to the domination of national gov- assignor of such claims all such sums of money ernment, and that the government established as may be recovered by him in compromise or was a government without limitation upon its settlement of such claims, deducting therefrom powers. The 11th Amendment to the Constitu- all expenses incurred by said attorney not betion removes every foundation for such a con- fore that time paid by the assignor. Sec. 5. This Act shall take effect on its passage.

"An Act to Protect the Rights of Citizens of this State, Holding Claims against Other States. Be it enacted, by the Senate and House of Representatives in General Court convened: Sec. 1. Whenever any citizen of the State shall be the owner of any claim against any of the United States of America, arising upon a written obligation to pay money issued by such State, which obligation shall be past due and unpaid, such citizen holding such claim may assign the same to the State of New Hampshire, and deposit the assignment thereof, duly executed and acknowledged in the form and manner provided for the execution and acknowledgment of deeds of real estate, by the laws of this State, together with all the evidence necessary to substantiate such claim, with the Attorney-stance for a decree that the bonds and the Act General of the State.

Sec. 2. Upon the execution and delivery of such assignment, in the manner provided for in section one of this Act, and furnishing the security as in said section provided, and the delivery of such claim to him, the Attorney-General shall bring and prosecute such action or proceeding, in the name of the State of New York, as shall be necessary for the recovery of the money due on such claim, and the said Attorney-General shall prosecute such action or proceeding to final judgment, and shall take such proceedings after judgment as may be necessary to effectuate the same.

Sec. 3. The Attorney-General shall forthwith deliver to the Treasurer of the State, for the use of such assignor, all moneys collected upon such claim, first deducting therefrom all expenses incurred by him in the collection thereof, and said assignor, or his legal representatives, shall be paid said money by said Treasurer upon producing the check or draft therefor of the Attorney-General to his or their order, and proof of his or their identity.

Sec. 4. This Act shall take effect immediately."

On the 20th of April, 1881, E. K. Goodnow and Benj. Graham, being the holders and owners of thirty coupons cut from ten of the consolidated bonds of Louisiana falling due January 1, 1880, July 1, 1880, and January 1, 1881, assigned them to the State of New York by an instrument in writing, of which the following is a copy:

"Know all men by these presents, that we, the undersigned, citizens of the State of New York, being the owners and holders of valid claims against the State of Louisiana, arising upon written obligations to pay money, made, executed and delivered by the State of Louisiana, and now past due and unpaid, being the coupons hereto annexed, in consideration of one dollar to each of us paid by the State of New York, and for other good and valuable considerations, hereby assign and transfer the said claims and coupons to the State of New York. And we do hereby covenant with the said State, that if an attempt is made by it to collect the said claim from the State of Louisiana, we will pay all the expenses of the collection of the

same.

In witness whereof we have hereunto set our hands and affixed our seals this twentieth day of April, in the year of our Lord one thousand eight hundred and eighty-one.

[L.S.]

The first question we have to settle is, whether, upon the facts shown, these suits can be maintained in this court.

Article III., section 2, of the Constitution provides that the judicial power of the United States shall extend to controversies between two or more States, and between a State and citizens of another State. By the same article and section it is also provided that in cases in which a State shall be a party, the Supreme Court shall have original jurisdiction. By the Judiciary Act of 1789, ch. 20, sec. 13, 1 Stat. at L., 80, the Supreme Court was given "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."

Such being the condition of the law, Alexander Chisholm, as executor of Robert Farquar, commenced an action of assumpsit in this court against the State of Georgia, and process was served on the Governor and Attorney-General. Chisholm v. Georgia, 2 Dall., 419. On the 11th of August, 1792, after the process was thus served, Mr. Randolph, the Attorney-General of the United States, as counsel for the plaintiff, moved for a judgment by default on the fourth day of the next Term, unless the State should then, after notice, show cause to the contrary. At the next Term, Mr. Ingersoll and Mr. Dallas presented a written remonstrance and protestation on behalf of the State against the exercise of jurisdiction, but in consequence of positive instructions they declined to argue the question. Mr. Randolph, thereupon, proceeded alone, and in opening his argument said, "I did not want the remonstrance of Georgia, to satisfy me that the motion which I have made is unpopular. Before the remonstrance was read, I had learnt from the Acts of another State, whose will must always be dear to me, that she too condemned it."

On the 19th of February, 1793, the judgment of the court was announced, and the jurisdiction sustained, four of the Justices being in favor of granting the motion and one against it. All the Justices who heard the case filed opinions, some of which were very elaborate, and it is evident the subject received the most careful consideration. Mr. Justice Wilson in his opinion uses this language (p. 465): "Another declared object (of the Constitution) is, 'to estabE. K. Goodnow. [L.S.] lish justice.' This points, in a particular manBenj. Graham. ner, to the judicial authority. And when we Sealed and delivered in presence of- view this object in conjunction with the declaFrank M. Carson." ration, 'that no State shall pass a law impairing Thereupon the State of New York, on the the obligation of contracts;' we shall probably 25th of April, filed in this court a bill in equity think, that this object points, in a particular against the State of Louisiana and the officers manner, to the jurisdiction of the court over the of the State composing the board of liquida- several States. What good purpose could this tion, with substantially the same averments and constitutional provision secure, if a State might the same prayer as in that of the State of New pass a law impairing the obligation of its own Hampshire. There was, however, a statement contracts; and be amenable, for such a violain this bill not in the other, to the effect that tion of right, to no controlling judiciary powmany of the consolidated bonds were issued to er?" And Chief Justice Jay (p. 479): "The excitizens of the State of New York in exchange tension of the judiciary power of the United for old bonds of Louisiana which they held, and States to such controversies, appears to me to be that citizens of New York now hold and own wise, because it is honest, and because it is usebonds of the same class to a large amount. Tes-ful. It is honest, because it provides for doing timony has been taken in support of this aver- justice without respect to persons, and by securing individual citizens as well as States, in

ment.

their respective rights, performs the promise that the judicial power of the United States which every free government makes to every shall not extend to any suit commenced or free citizen, of equal justice and protection. It prosecuted by citizens of one State against anis useful, because it is honest, because it leaves other State. No one can look at the pleadings not even the most obscure and friendless citizen and testimony in these cases, without being without means of obtaining justice from a satisfied, beyond all doubt, that they were, in neighboring State; because it obviates occasions legal effect, commenced, and are now proseof quarrels between States on account of the cuted, solely by the owners of the bonds and claims of their respective citizens; because it coupons. In New Hampshire, before the Attorrecognizes and strongly rests on this great moral ney-General is authorized to begin a suit, the truth, that justice is the same whether due from owner of the bond must deposit with him a one man or a million, or from a million to one sum of money sufficient to pay all costs and exman; because it teaches and greatly appreciates penses. No compromise can be effected except the value of our free republican national gov- with the consent of the owner of the claim. No ernment which places all our citizens on an equal money of the State can be expended in the profooting, and enables each and every of them to ceeding, but all expenses must be borne by the obtain justice without any danger of being owner, who may associate with the Attorneyoverborne with the might and number of their General such counsel as he chooses, the State opponents; and, because it brings into action, being in no way responsible for fees. All monand enforces the great and glorious principle, eys collected are to be kept by the Attorneythat the people are the Sovereign of this coun- General, as special trustee, separate and apart try, and consequently that fellow citizens and from the other moneys of the State, and paid joint Sovereigns cannot be degraded by appear-over by him to the owner of the claim, after deing with each other in their own courts to have ducting all expenses incurred not before that their controversies determined." time paid by the owner. The bill, although Prior to this decision, the public dicussions signed by the Attorney-General, is also signed had been confined to the power of the court and was evidently drawn by the same counsel under the Constitution to entertain a suit in who prosecuted the suits for the bondholders in favor of a citizen against a State, many of the Louisiana, and it is manifested in many ways leading members of the Convention arguing, that both the State and the Attorney-General with great force, against it. As soon as the de- are only nominal actors in the proceeding. The cision was announced, steps were taken to ob- bond owner, whoever he may be, was the protain an Amendment of the Constitution with- moter and is the manager of the suit. He pays drawing jurisdiction. About the time the judg- the expenses, is the only one authorized to conment was rendered, another suit was begun clude a compromise, and if any money is ever against Massachusetts, and process served on collected, it must be paid to him without even John Hancock, the Governor. This led to the passing through the form of getting into the convening of the General Court of that Common- Treasury of the State. wealth, which passed resolutions instructing In New York no special provision is made the Senators and requesting the members of the for compromise or the employment of addiHouse of Representatives from the State "To tional counsel, but the bondholder is required adopt the most speedy and effectual measures to secure and pay all expenses and gets all the in their power to obtain such Amendments in money that is recovered. This State, as well as the Constitution of the United States as will New Hampshire, is nothing more nor less than remove any clause or articles of the said Con- a mere collecting agent of the owners of the stitution, which can be construed to imply or bonds and coupons; and while the suits are in justify a decision that a State is compellable to the names of the States, they are under the answer in any suit by an individual or individ-actual control of individual citizens, and are uals in any courts of the United States." Other prosecuted and carried on altogether by and for States also took active measures in the same them. direction and, soon after the next Congress It is contended, however, that, notwithstandcame together, the 11th Amendment to the Con- ing the prohibition of the Amendment, the stitution was proposed, and afterwards ratified States may prosecute the suits, because, as the by the requisite number of States, so as to go into Sovereign and trustee of its citizens, a State is effect on the 8th of January, 1798. That Amend-Clothed with the right and faculty of mak

ment is as follows:

"The 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 and subjects of any foreign State."

Under the operation of this Amendment the actual owners of the bonds and coupons held by New Hampshire and New York are precluded from prosecuting these suits in their own names. The real question, therefore, is, whether they can sue in the name of their respective States after getting the consent of the State, or, to put it in another way, whether a State can allow the use of its name in such a suit for the benefit of one of its citizens.

The language of the Amendment is, in effect,

ing an imperative demand upon another independent State for the payment of debts which it owes to citizens of the former." There is no doubt but one Nation may, if it sees fit, demand of another Nation the payment of a debt owing by the latter to a citizen of the former. Such power is well recognized as an incident of national sovereignty, but it involves also the national powers of levying war and making treaties. As was said in U. S. v. Diekelman, 92 U.S., 524 [XXIII., 744], if a Sovereign assumes the responsibility of presenting the claim of one of his subjects against another Sovereign, the prosecution will be as one Nation proceeds against another, not by suit in the courts, as of right, but by diplomatic negotiation, or, if need be, by war.

All the rights of the States as independent

.

Nations were surrendered to the United States. | our opinion, one State cannot create a controThe States are not Nations, either as between versy with another State, within the meaning themselves or towards foreign Nations. They of that term as used in the judicial clauses of the are Sovereign within their spheres, but their Constitution, by assuming the prosecution of sovereignty stops short of nationality. Their debts owing by the other State to its citizens. political status at home and abroad is that of Such being the case, we are satisfied that we are States in the United States. They can neither prohibited, both by the letter and the spirit of the make war nor peace without the consent of the Constitution, from entertaining these suits, and National Government. Neither can they, ex- the bill in each of them is, consequently, dismissed. cept with like consent, enter into any agreement True copy. Test: or compact with another State. Art. I., sec. 10, James H. McKenney, Clerk, Sup. Court, U. S. ch. 3. Cited-109 U. S., 450; 114 U. S., 287.

But it is said that, even if a State as sovereign trustee for its citizens, did surrender to the National Government its power of prosecuting the claims of its citizens against another State by force, it got in lieu, the constitutional right of suit in the national courts. There is no principle of international law which makes it the duty of one Nation to assume the collection of the claims of its citizens against another Nation, if the citizens themselves have ample means of redress without the intervention of their government. Indeed, Sir Robert Phillimore says, in his commentaries on International

UNITED STATES, Appt.,

v.

THE STEAMER NUESTRA SEÑORA DE
REGLA, Her Tackle, etc., LA COMPAGNIA
DEL FERRO CARREL DE LA BAHIA DE LA
HABANA A MATANZAS, Claimants.

(See S. C., "The Nuestra Señora de Regla," Reporter's
ed., 92-104.)

Second appeal-capture by army and navywaiver by United States, of exemption from suit -condemnation of prize-demurrage.

1. Questions settled on a former appeal of the same cause are no longer open.

3. When, in pursuance of negotiation with a forExecutive of the Nation, waived its right to exeign government, the United States, through the emption from suit, and asked a prize court to complete the adjudication of a cause which was rightbound by the submission, and it is the duty of the fully begun in that jurisdiction, the Government is court to proceed to the final determination of all the questions legitimately involved. proceedings for the condemnation of his prize 4. It is the duty of a captor to institute judicial without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages.

Law, Vol. 2, 2d ed., page 12: "As a general rule, the proposition of Martens seems to be correct, that the foreigner can only claim to be put on the same footing as the native creditor of the State." Whether this be in all respects true or not, it is clear that no Nation ought to interfere, except under very extraordinary cir2. A capture which was made by the army, or by cumstances, if the citizens can themselves em-clusively to the benefit of the United States; there the army and navy operating together, inures exploy the identical and only remedy open to the is no distribution of prize money in such a case. government if it takes on itself the burden of the prosecution. Under the Constitution, as it was originally construed, a citizen of one State could sue another State in the courts of the United States for himself, and obtain the same relief his State could get for him if it should sue. Certainly, when he can sue for himself, there is no necessity for power in his State to sue in his behalf, and we cannot believe it was the intention of the framers of the Constitution to allow both remedies in such a case. There5. The allowance for demurrage in such case infore, the special remedy, granted to the citizen cludes reasonable compensation for the pay and exhimself, must be deemed to have been the only penses of an agent to look after the interests of the remedy the citizen of one State could have un-owners up to the time of the delivery of the vessel der the Constitution against another State for to the navy department by the court. the redress of his grievances, except such as Argued Jan. 23, 24, 1883. Decided Mar.12, 1885. [No. 159.] the delinquent State saw fit itself to grant. In other words, the giving of the direct remedy to the citizen himself was equivalent to taking away any indirect remedy he might otherwise have claimed, through the intervention of his State, upon any principle of the law of Nations. It follows that when the Amendment took away the special remedy there was no other left. Nothing was added to the Constitution by what was thus done. No power, taken away by the grant of the special remedy, was restored by the Amendment. The effect of the Amend

APPEAL from the District Court of the United

York.

States for the Southern District of New

The history and facts of the case fully appear in the opinion of the court.

Mr. William A. Maury, Asst. Atty-Gen., for appellant.

Messrs. Wm. Allen Butler, W. R. Beebe and charles Donohue, for appellee:

cept as to the proceedings subsequent to the No question arises on this second appeal, ex

mandate.

Himely v. Rose, 5 Cranch, 313; Skillern v. May, 6 Cranch, 267; Ex parte Sibbald, 12 Pet..

NOTE.-Damages in cases of illegal capture and in collision. See note to The Amiable Nancy. 16 U.S. (3 Wheat.), 546.

ment was simply to revoke the new right that had been given, and leave the limitations to stand as they were. In the argument of the opinions filed by the several Justices of the Chisholm Case, there is not even an intimation that if the citizen could not sue, his State could sue for him. The evident purpose of the Amendment, so promptly proposed and finally adopt- In cases of capture, made without probable cause, ed, was to prohibit all suits against a State by the court may decree damages and costs against the or for citizens of other States, or aliens, with-captors, on restitution. Glass v. The Betsey, 3 U. S. (3 Dall.), 16; The Isabella Thompson v. U. 8., 70 out the consent of the State to be sued and, in U. S., XVIII., 55.

Damages, in cases of capture, on restitution.