tinuation of the same suit, then this suit is not commenced nor prosecuted against a state. It is clearly in its commencement, the suit of a state against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the state, but for the purpose of asserting a constitutional defence against a claim made by a state.

"A writ of error is defined to be, a commission by which the judges of one court are authorized to examine a record upon which a judgment was given in another court, and, on such examination, to affirm or reverse the same according to law. If, says my Lord Coke, by the writ of error, the plaintiff may recover, or be restored to anything, it may be released by the name of an action. In Bacon's Abridgment, tit. Error, L., it is laid down, that where by a writ of error, the plaintiff shall recover, or be restored to any personal thing, as debt, damage, or the like, a release of all actions personal is a good plea; and when land is to be recovered, or restored in a writ of error, a release of actions real is a good bar; but where by a writ of error the plaintiff shall not be restored to any personal or real thing, a release of all actions, real or personal, is no bar.' And for this we have the authority of Lord Coke, both in his Commentary on Littleton and in his Reports. A writ of error, is in the nature of a suit or action when it is to restore the party who obtains it to the possession of anything which is withheld from him, not when its operation is entirely defensive.

"This rule will apply to writs of error from the courts of the United States, as well as to those writs in England.

"Under the judiciary act, the effect of a writ of error is simply to bring the record into court, and submit the judgment of the inferior tribunal to re-examination. It does not in any manner act upon the parties; it acts only on the record. It removes the record into the supervising tribunal. Where then, a state obtains a judgment against an individual, and the court, rendering such judgment, overrules a defence set up under the Constitution or laws of the United States, can, with no propriety, we think, be denominated a suit com

menced or prosecuted against the state whose judgment is so far re-examined. Nothing is demanded from the state. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the possession of anything. Essentially, it is an appeal on a single point, and the defendant who appeals from a judgment rendered against him, is never said to commence or prosecute a suit against the plaintiff who has obtained the judgment. The writ of error is given rather than an appeal, because it is the more usual mode of removing suits at common law; and because, perhaps it is more technically proper where a single point of law, and not the whole case, is to be re-examined. But an appeal might be given, and might be so regulated as to effect every purpose of a writ of error. The mode of removal is form, and not substance. Whether it be by writ of error, or appeal, no claim is asserted, no demand is made by the original defendant; he only asserts the constitutional right to have his defence examined by that tribunal whose province it is to construe the Constitution and laws of the Union.

"The only part of the proceeding which is in any manner personal, is the citation. And what is the citation? It is simply notice to the opposite party that the record is transferred into another court, where he may appear or decline to appear, as his judgment or inclination may determine. As the party who has obtained a judgment is out of court, and may therefore, not know that his cause is removed, common justice requires that notice of the fact should be given him. But this notice is not a suit, nor has it the effect of process. If the party does not choose to appear, he cannot be brought into court, nor is his failure to appear considered as a default. Judgment cannot be given against him for his non-appearance, but the judgment is to be re-examined, and reversed or affirmed, in like manner as if the party had appeared and argued his cause.

"The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course

of this court in suits instituted by the United States. The universally received opinion is, that no suit can be commenced or prosecuted against the United States; that the judiciary act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judgments in favor of the United States into a superior court, where they have, like those in favor of an individual, been re-examined, and affirmed, or reversed. It has never been suggested, that such writ of error was a suit against the United States, and, therefore, not within the jurisdiction of the appellate court.

"It is, then, the opinion of the court, that the defendant who removes a judgment rendered against him by a state court into this court, for the purpose of re-examining the question, whether that judgment be in violation of the Constitution or laws of the United States, does not commence or prosecute a suit against the state, whatever may be its opinion when the effect of the writ may be to restore the party to the possession of a thing which he demands."

§ 63. A state is within the operation of the original clause of the Constitution, only when it is a party to the record, as a plaintiff or defendant, in its political capacity. The Supreme Court have laid it down as a rule admitting of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record. In the case of Chisholm v. Georgia, the state was, nominally, a party on the record. So, also, it was a party on the record in Hollingsworth v. Virginia. In Georgia v. Brailsford, the bill was filed by the governor in behalf of the state, and the case was considered as one in which the Supreme Court had original jurisdiction, because a state was a party. In New York v. Connecticut, both the states were nominally parties."

3

§ 64. In like manner, a state is within the operation of

1 Osborne v. The Bank of the United States, 9 Wheat. 738.

22 Dallas, 419.

33 Dall. 378. 4 2 Dall. 402. 5 4 Dall. 3.

the amendment, only when it is a nominal party on the record, in its political capacity. In Fowler v. Lindsay, an attempt was made to restrain proceedings in a cause depending in a circuit court, on the allegation that a controversy respecting the soil and jurisdiction of the two states had occurred in it. The Supreme Court determined that a state, not being a party on the record, nor directly interested, the circuit court ought to proceed in it.1

§ 65. So, too, if the state merely has an interest in a suit between other persons, or if its rights, powers, privileges, or duties are only brought in question incidentally, or if the actual parties before the court are acting only as its agents, the state is not a party to the controversy. Thus, where a bill was filed by the Bank of the United States, to restrain certain officers of the State of Ohio from collecting a tax attempted to be levied upon the property of the Bank under a law of that state, it was objected that the suit was against the state.2

The Supreme Court said: "The bill is brought, it is said, for the purpose of protecting the Bank in the exercise of a franchise granted by a law of the United States, which franchise the State of Ohio asserts a right to invade, and is about to invade. It prays the aid of the court to restrain the officers of the state from executing the law. It is, then, a controversy between the Bank and the State of Ohio. The interest of the state is direct and immediate, not consequential. The process of the court, though not directed against the state by name, acts directly upon it, by restraining its officers. The process, therefore, is substantially, though not in form, against the state, and the court ought not to proceed without making the state a party. If this cannot be done, the court cannot take jurisdiction of the

cause.

"The full pressure of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of

3 Dall. 411.

Osborne v. United States Bank, 9 Wheaton, 846.

the state in the suit as brought, is admitted; and, had it been in the power of the Bank to make it a party, perhaps no decree ought to have been pronounced in the cause, until the state was before the court. But this was not in the power of the Bank. The eleventh amendment of the Constitution has exempted a state from the suits of citizens of other states, or aliens; and the very difficult question is to be decided, whether, in such a case, the court may act upon the agents employed by the state, and on the property in their hands?

"Before we try this question by the Constitution, it may not be time misapplied, if we pause for a moment, and reflect on the relative situation of the Union with its members, should the objection prevail.

"A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts, that the agent of a state, alleging the authority of a law void in itself, because repugnant to the Constitution, may arrest the execution of any law in the United States. It maintains, that if a state shall impose a fine or penalty on any person employed in the execution of any law of the United States, it may levy that fine or penalty by a ministerial officer, without the sanction even of its own courts; and that the individual, though he perceives the approaching danger, can obtain no protection from the judicial department of the government. The carrier of the mail, the collector of the revenue, the marshal of a district, the recruiting officer, may all be inhibited, under ruinous penalties, from the performance of their respective duties; the warrant of a ministerial officer may authorize the collection of these penalties; and the person thus obstructed in the performance of his duty, may indeed resort to his action for damages, after the infliction of the injury, but cannot avail himself of the preventive justice of the nation to protect him in the perform