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of State debts in the South. Federal Courts could have. taught ethics with effect in Louisiana and Virginia, and other Southern States during the last twenty years, but for the fundamental law which forbade bringing the State before the bar of the Court at the instance of private non-resident suitors.

It is observable that it is only during the past year that it has been judicially declared by the Court of last resort that the States of the Union are not subject to suit in the Federal Courts at the hands of their own citizens: Hans v. Louisiana (1890), 134 U. S. 1. This involved a different construction of the Constitution from that made in Chisholm v. Georgia, and accordingly the views expressed in that case have been disapproved. With the law already established that the States without their own consent were not subject to suit in their own courts by individual citizens, and with such cases as United States v. Lee (1882), 106 U. S. 196 declaring that the United States Government as such is entitled to the same immunity, the decision in Hans v. Louisiana was necessary, before the doctrine of the publicists that a sovereign State is not liable to suit without its own consent could be said, in all its phases, to be part of our constitutional law.

It is not the present purpose to discuss the political philosophy of the doctrine, nor to justify or criticise the applications of it that have been made to the Federal Constitution, whereby that instrument has been given a meaning quite apart from what its letter alone would imply, as has notably been done in the case of Hans v. Louisiana. The suggestion merely occurs that, with the law of government immunity from suit, except as it consents, now fully established, the time is ripe for an examination of the scope and limitations of the doctrine as declared by the Supreme Court.

It is perhaps the one good that has come of the repudiation of State debts in the South, that with the litigation it has invited, it has developed and settled judicial opinion very rapidly on an important branch of constitutional law. It is, of course, small consolation for the individual litigants who have usually, in the end, lost their suits

against the States, to know that they have made law if they have not made their money; but to the student alive to the development of the law, it is of peculiar interest to observe, as in the end it is of value to the people themselves to witness, doctrines taking definite and final form and reaching definite and final meaning as the courts pass from precedent to precedent.


It was at one time held that whether or not a suit is against the State is to be determined by the fact whether or not the State is the nominal defendant of record. This appeared to be the view of Chief Justice MARSHALL in Osborn v. Bank of the United States (1824), 9 Wheat. (22 U. S.) 738, where he said:

It may, we think, be laid down as a rule which admits of no exception, that in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the Eleventh Amendment, which restrains the jurisdiction granted by the Constitution over suits against States, is, of necessity, limited to those suits in which a State is a party on the record.

It was also adopted and made one of the grounds for the judgment in Davis v. Gray (1872), 16 Wall. (83 U. S.) 203, where the Court, with two justices dissenting, sustained an injunction against the Commissioner of the Texas Land Office and the Governor of the State, restraining them in their official capacity from selling and delivering patents for land, in violation of the rights of a railroad.

The expressions of opinion in these cases have not been maintained by the Court as correctly stating the law. Chief Justice MARSHALL has been shown (In re Ayers, 1887, 123 U. S. 443, 488) to have expressed himself otherwise than in Osborn v. The Bank, in the later cases of The Governor of Georgia v. Madrazo (1828), 1 Pet. (26 U. S.) 110, and Ex parte Madrazo (1833), 7 Pet. (32 U. S.) 627, and the decision in Osborn v. The Bank has been placed upon other grounds than that of jurisdiction; while Davis v. Gray has been questioned if not altogether overruled as authority:

Cunningham v. Macon & Brunswick RR. Co. (1883), 109 U. S. 446, 453. Of the present Supreme Court Justices who have had an opportunity of passing upon the question, Justice HARLAN is perhaps the only one who holds to the doctrine once thought to be declared in Osborn v. The Bank. His dissenting opinions in Louisiana v. Jumel (1882), 107 U. S. 746; Antoni v. Greenhow (1882), Id. 801; Cunningham v. Macon & Brunswick RR. Co. and In re Ayers are interesting protests against the restatement of the law of the earlier cases.

The present doctrine is, that whether the State is the actual party defendant in the sense intended in the Constitution, is to be determined from the nature of the case as presented by the whole record. The following were suggested by the Court in Poindexter v. Greenhow (1884), 114 U. S. 270, as tests for determining when a suit would be considered as brought against the State. That would be a suit against the State

(1.) Where the State is named as a party on the record. (2.) Where the action is brought directly upon the State's


(3.) Where the suit is brought to control the discretion of an executive officer of the State.

(4.) Where the suit is brought for the purpose of administering funds actually in the public treasury.

(5.) Where the suit is in effect an attempt to compel officers of the State to do acts which constitute a performance of its contract by the State.

(6.) Where the suit brought is such that the State is a necessary party in order that the defendant may be protected from liability to it.

No illustrations from the cases are of course needed as to the first of these tests. The remaining tests apply where the State is not the nominal defendant. Among the many interesting applications of them, a few may be noted. It will be found that in a number of cases, more than one of the tests apply.

The Governor of Georgia v. Madrazo was a libel and

claim against the Governor of Georgia in his official capacity for certain slaves and the proceeds of certain others which had been sold and the money realized therefrom paid into the State Treasury. Chief Justice MARSHALL denied jurisdiction, on the ground that the State was in effect a party, since its Governor was sued not by his name, but by his style of office, and the claim made upon him was entirely in his official character. Another ground for the decision would perhaps be, that the demand was for money actually in the treasury of the State, mixed up with its general funds, and for slaves in possession of the Governor, and that the suit was therefore brought for the purpose of administering funds actually in the State Treasury.

Louisiana v. Jumel was a mandamus and injunction against officers of Louisiana, constituting the State Board of Liquidation, to compel them to carry out a contract with the State for payment of coupons on its bonds repudiated by a subsequent constitutional amendment, and to apply funds in the treasury already collected to the redemption of bonds contracted to be redeemed, and to execute generally the act embodying the contract. The Court denied relief as an attempt to control the discretion of executive officers of the State, and to compel them to do acts constituting a performance of the State's contract, and as also an effort to administer funds actually in the public treasury.

In Hagood v. Southern (1885), 117 U. S. 52, the principles of the case of Louisiana v. Jumel were affirmed and applied, and it was held that holders of State scrip which the State of South Carolina had issued for value and contracted should be received in payment of all taxes and dues to the State, could not compel the State officers to take action to fulfill the State's contract. Justice MATTHEWS stated the doctrine of the identification of the State officers with the State in language which has been well condensed in the syllabus:

When a suit is brought in a court of the United States against officers of a State, to enforce performance of a contract made by the State, and the controversy is as to the validity and obligation of the contract, and

the only remedy sought is the performance of the contract by the State, and the nominal defendants have no personal interest in the subject matter of the suit, but defend only as representing the State, the State is the real party against whom the relief is sought, and the suit is substantially within the prohibition of the Eleventh Amendment.

A most exhaustive discussion of the subject is found in In re Ayers, decided in December, 1887. The case, it will be remembered, came before the Supreme Court on habeas corpus, on the application of the Attorney General of Virginia, who was committed for contempt for disobeying a restraining order of the Circuit Court of the United States for the Eastern District of Virginia, requiring him to discontinue and abstain from prosecuting certain suits on behalf of Virginia for collection of taxes. The order was made by way of final decree on a bill in equity filed by aliens against the State Auditor, the Attorney General and others, to restrain them from bringing and prosecuting in the name and for the use of the State, as required by an Act of Assembly, suit against taxpayers who in payment of taxes, had tendered coupons of a class already decided by the Supreme Court to be receivable for taxes under a prior contract of the State. The petitioner was released on the ground that the suit in which the injunction had issued was in effect against the State. The case was the converse of such cases as Louisiana v. Jumel and Hagood v. Southern, in deciding that not only was it a suit against a State to seek by legal process to require its officers to perform its contract, but it was likewise such a suit to seek by such process to restrain them from doing acts required of them by State statute, which when performed would constitute a breach of the State's contract. The opinion in this case, with its discussion of the doctrine of State nonsuability, leaves little to be desired in the way of completeness. It is in many respects a landmark on the subject, and belongs not only among the masterly judgments of the late Justice MATTHEWS, but also among the great judgments of the Court.

It has been sometimes possible to determine the question of jurisdiction, without deciding whether the State's officers represent the State so as to relieve them from suit in its be-

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