CHAPTER IV.

CONTROVERSIES TO WHICH THE UNITED STATES SHALL BE A PARTY.

§ 53. THE next class of the subjects of the judicial power are "Controversies to which the United States shall be a party." Upon the force to be given to this clause depends the very important questions, whether suits can be brought against the United States without the authority of Congress? and whether it is competent to Congress to give that authority? Controversies, to which the United States may be a party as plaintiff, or actor, are obviously embraced by this clause. But whether it also embraces controversies, to which the United States are a party as defendant, is not so clear.

54. The same section of the Constitution extends the judicial power to "controversies between a state and the citizens of another state;" and upon this original clause it was held, at an early period in the history of the government, that a state might be sued by individual citizens of another state, and an amendment of the Constitution was adopted to obviate the supposed inconvenience of this provision. The ground on which the decision proceeded was, that although no sovereignty is amenable to judicial process without its consent, it is competent to every sovereignty to give such consent, and the states had given it, by assenting to the Constitution with this provision. More recently, the doctrine, that a sovereign state is not liable to suit except by

1

1 Chisholm's Ex'ors v. The State of Georgia, 2 Dallas, 419, 478.

its own consent, was re-affirmed by the Supreme Court, and the principle was laid down that consent need not be given in each case, but might be given by a general law; so that the question, whether a state has surrendered this attribute of sovereignty, depends on the instrument by which the surrender is supposed to be made, namely, upon the Constitution.1

§ 55. If, now, we apply this reasoning to the case of the United States, whose sovereignty in this respect is entirely analogous to that of a state, it is apparent that the United States cannot be sued without their own consent. The question is, therefore, whether, by force of this clause in the Constitution, by which the judicial power is extended to "controversies to which the United States shall be a party," that consent has already been given, or whether the action of Congress is necessary to give that consent in a particular case, or in a class of cases, or in all cases, before the United States can be sued. One reason which has been assigned why this clause of the Constitution should not be deemed of itself to import a consent to be sued, is, that the national judiciary is supported in its proceedings by the executive power, by which its judgments are carried into effect, and that this power might act against a state; but in a case of a suit against the United States, the government would be called upon to act against itself, there being no other power on which the judiciary could rely. But even if this objec

1 Cohens v. Virginia, 6 Wheaton, 264, 380.

2 Per Jay, Ch. Justice, in Chisholm v. Georgia, 2 Dallas, 478: “I perceive, and therefore candor urges me to mention, a circumstance which seems to favor the opposite side of the question. It is this: the same section of the Constitution which extends the judicial power to controversies between a state and the citizens of another state,' does also extend that power to controversies to which the United States are a party. Now, it may be said, if the word party comprehends both plaintiff and defendant, it follows that the United States may be sued by any citizen, between whom and them there may be a controversy. This appears to me to be by fair reasoning; but the same principles of candor

tion would not equally exist, in the case of a suit expressly authorized by Congress to be brought against the United States, it would seem that it touches only the power of executing the judgment, and not the power of entertaining the suit, and deciding upon the controversy. The national tribunals. are established for the purpose of adjudicating certain controversies, which are placed under their cognizance for certain great reasons of fitness and policy; and perhaps their power of carrying into effect the results of adjudication. may not, in all cases, be a test of their power to receive and entertain the cause.

§ 56. But, however this may be, it would seem that the true construction of this clause depends upon other considerations. The language is, "controversies to which the United States shall be a party." In the first place, this language does not confer the jurisdiction of any such controversies upon any particular court, but merely places them within the scope of the judicial power. Legislation is therefore necessary, in order to designate the tribunal in which such causes are to originate. In the second place, it does not confer upon the national tribunals cognizance of all controversies to which the United States shall be a party, but only cognizance of some. It remains, therefore, for Congress

which urge me to mention this objection, also urge me to suggest an important difference between the two cases. It is this: In all cases of actions against states or individual citizens, the national courts are supported in all their legal and constitutional proceedings and judgments by the arm of the executive power of the United States; but, in cases of actions against the United States, there is no power which the courts can call to their aid. From this distinction important conclusions are deducible, and they place the case of a state, and the case of the United States in very different points of view.

"I wish the state of society was so far improved, and the science of government advanced to such a degree of perfection, as that the whole nation could, in the peaceable course of law, be compelled to do justice, and be sued by individual citizens. Whether that is or is not now the case ought not to be thus collaterally and incidentally decided. I leave it a question."

to designate what controversies shall be submitted to judicial cognizance. In the third place, the word "controversies seems to embrace only civil suits; for, where all suits, criminal and civil, are evidently intended to be included, the Constitution employs the term "cases." But to a civil suit, a sovereignty cannot be made a party without its consent; and as the clause in question embraces only controversies to which the United States "shall be" a party, it would seem to be the reasonable intendment, that such controversies only are embraced by it, as those to which the United States shall consent to become a party, by the action of the legislative department of the government. Congress never having authorized suits to be brought against the United States, the universally received opinion has been, that such a suit cannot be commenced or prosecuted. But, as we shall see hereafter, this does not prevent the exercise of appellate jurisdiction, to obtain by writ of error a reversal of a judgment which has been rendered in favor of the United States.2 Nor does it preclude individuals, when sued by the United States, from availing themselves of credits or set-offs against the United States.3

§ 57. But would the clause of the Constitution authorize Congress to allow suits to be brought by individuals against the United States? or, in other words, does the clause itself import a consent, on the part of the national sovereignty, to be sued in any case, which the legislature may see fit to make the subject of judicial cognizance? It is to be observed, that the language of the clause makes no discrimination between suits brought by and suits brought against the United' States. The only limitation is to controversies to which the United States "shall be a party," a mode of expression that seems to imply some act on the part of the United States to

1 Cohens v. Virginia, 6 Wheaton, 264, 411, 412; Story's Commentaries on the Constitution, ? 1669.

2 Ibid.

3 The United States v. The Bank of the Metropolis, 15 Peters, 377, 392.

make itself a party, as if it had read "controversies to which the United States shall become a party." The United States becomes a party plaintiff by instituting a suit; and they might become a party defendant, by authorizing a suit to be brought, and directing the mode in which redress should be obtained. The objection suggested by Mr. Chief Justice Jay, in Chisholm v. Georgia, that the government would be called upon to act against itself, in order to give effect to the adjudication, may furnish a sufficient reason why the Constitution alone should not be deemed to authorize suits against the United States, without the consent of Congress; but it does not seem to furnish a reason why the Constitution may not be considered as authorizing Congress to give a remedy and provide for the satisfaction of the judgment, for when that is done, the whole objection is removed.1

1 Mr. Justice Story, in his Commentaries on the Constitution, while lamenting the absence of any provisions to enable the creditors of the United States to sue, takes it for granted that such provisions would be constitutional, and refers to the English proceeding of a petition of right. Story's Com. 1672.