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of claims, in which suits against it can be brought. But in no case can the United States be sued in a state court.

Controversies between

XXI. STATES AS PARTIES.

§ 530. The jurisdiction in controversies between states includes questions of contested boundary between states, and also questions as to whether the questions of conditions of dividing a state have been complied

states include

boundary.

States must be the real parties to sue.

with."

§ 531. It is not enough that a question between states may incidentally arise in a suit between individuals to bring such suit within the operation of the clause which gives the supreme court original jurisdiction of suits in which a state is plaintiff. A state, to give jurisdiction, must be the real plaintiff. And, as will presently be seen, a state cannot by merely taking an assignment of a claim give the Federal courts jurisdiction of such claim."

532. In the original constitution the supreme court of

States can no longer

be sued by

individuals

in Federal

the United States had jurisdiction in cases in which a state is defendant. This, however, was one of the points to which peculiar objection was taken, and by the eleventh amendment, which was adopted as part of the understanding on which New York and Virginia assented to the ratification, it is provided as follows: "The judicial power of the United States shall not be con

courts.

1 As to this court, see 1 Kent's Com., the parties before it may inquire into 297, note.

2 Ableman v. Booth, 21 How. 506. In U. S. v. Lee, 107 U. S. 189, it was held, that the exemption of the United States from suit is limited to suits against the United States directly and by name, and cannot be successfully pleaded in favor of officers and agents of the United States when sued by private persons for property in their possession as such officers and agents. It was further held, that in such cases a court of competent jurisdiction over

the lawfulness of the possession of the United States as held by such officers or agents, and give judgment according to the result of that inquiry.

3 Rhode Island v. Massachusetts, 12 Pet. 657; Alabama v. Georgia, 23 How. 505.

39.

Virginia v. West Virginia, 11 Wall.

5 Fowler v. Lindsey, 3 Dall. 411; see Governor v. Madrazo, 1 Pet. 110. 6 Infra, § 532.

strued 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 the citizens or subjects of any foreign state." This provision, however, does not preclude the supreme court from taking cognizance, under other clauses already noticed, by way of review, of any cases in which a state is defendant, in which a decision is had against the validity of any Federal treaty, statute, or other official action. Nor is jurisdiction, otherwise attaching, excluded by the fact that a state has a large interest in the case as defendant.2 Nor can a state officer, acting without authority from the state, shield himself from liability on the ground that the state is virtually the party sued. On the other hand, the amendment cannot be evaded by making, when the object is to impose a liability on a state, state officials defendants. Nor can a citizen of another state, by assigning his claim to the state of which he is a citizen, under the authority of the legislature of the latter state, bring suit in the Federal courts against a state on which he has a claim. The amendment precludes all suits in law or equity against a state by citizens of another state; and this covers suits in which such citizens are the real parties, though the nominal parties may be states lending their names for the purposes of the suit.s

XXII. HABEAS CORPUS.

Habeas corpus by

§ 534. The writ of habeas corpus in its general relations is discussed at large in another work, to which the student is referred. It may be sufficient here to state that the power of judges of the Federal courts to issue writs of habeas corpus is limited to cases

1 Cohens v. Virginia, 6 Wheat. 264. 2 Osborn v. Bank U. S., 9 Wheat. 738; Bank of Kentucky v. Wister, 2 Pet. 318.

* In New Hampshire v. Louisiana, Sup. Ct. U. S., 1883, it was held that one state cannot create a controversy with another state within the meaning of that term as used in the judicial

Federal judges limited to

clauses of the Federal constitution, by assuming the prosecution of debts owing by the latter state to the citizens of the former. That the agents of a state cannot be sued when representing the state, see Louisiana v. Jumel, supra, §§ 312, 493.

4 Wh. Cr. Pl. and Pr., §§ 978 et seq.

cases

involving Federal law.

where the petitioner is in custody under authority of the United States, or for an act done or omitted in pursuance of a law of the United States, or in the discharge of a duty to the United States, or in obedience to an order of a court thereof; or is charged with violation of the constitution or laws of the United States; or is in prison for an act done by him as a subject of a foreign state; or where the writ is issued for the purpose of obtaining the attendance of the party as a witness. The writ, however, will be refused by a Federal court when the object is to review commitments under state penal process conflicting with no Federal law.* And the Federal courts, on habeas corpus, will not review the sentences of state courts acting de facto, but not de jure.

1 See Whart. Crim. Law, 8th ed., § 268; De Krafft v. Barney, 2 Black, 704; Tarble's Case, 13 Wall. 397; U. S. v. Jailor, 2 Abb. U. S. 265; Robinson, ex parte, 6 McLean, 355; McConologue, in re, 107 Mass. 154.

As further cases of writs issued by Federal judges to release parties committed by state process, see U. S. v. Jailor, 2 Abb. U. S. 265; Farrand, in re, 1 Abb. U. S. 140; Electoral College, ex parte, 1 Hughes, 571; Whart. Cr. Pl. and Pr., §§ 981, 999. See, generally, on this subject, Field's Federal Courts, 304 et seq.; and see cases cited supra, § 524.

That a defendant will be discharged when under arrest by a state court for a homicide committed under Federal authority, see U. S. v. Jailor, 2 Abb. U. S. 265.

3 Fugitive Slave Law, 1 Blatch. 635; Jenkins, ex parte, 2 Am. Law. Reg. (0. S.) 144; S. C., 2 Wall., Jr., 521, 539; Sifford, ex parte, 5 Am. Law Reg. (O. S.) 659; Brosnahan, in re, 18 Fed. Rep. 62.

4 Dorr, ex parte, 3 How. 103.

5 Chase, C. J., as reported in Griffin, in re, 25 Tex. (Sup.) 623; S. C., Chase Dec., 364. That a prisoner detained under a

state law conflicting with the Federal constitution may be discharged by a Federal court, see Wong Yung Quy, 6 Saw. 237; and see, also, as to unconstitutional liquor laws, Welton v. Missouri, 91 U. S. 282; supra, § 425.

On the question of the exclusiveness of Federal jurisdiction of crime, see supra, § 524.

In Brosnahan, in re, 18 Fed. Rep. 62, it was held that the circuit court of the United States may issue the writ of habeas corpus upon the application of any person who is imprisoned in violation of the constitution, or of any law or treaty of the United States; and if a person be imprisoned under a state statute which is in conflict with either, that court has power to discharge him. "The acts of congress concerning the writ of habeas corpus," said Miller, J., "have been brought together in chapter 13 of the Revised Statutes, and are included in sections 751-766. That which relates to the jurisdiction of the circuit courts is found in sections 751 and 753."

"Sec. 751. The supreme court and the circuit and district courts shall have power to issue writs of habeas corpus."

"Sec. 753. The writ of habeas corpus

State court

cannot discharge perFederal United Court may on state

son under

arrest, but

States

§ 535. The writ of habeas corpus cannot be used by a state court for the purpose of revising arrests under Federal process. Hence it is the duty of a Federal marshal, in whose custody may be a person arrested under Federal process, to refuse obedience to a writ of habeas corpus directed to him by a state court; and it will be a sufficient return by him to such a writ that he holds the prisoner by virtue of proper Federal authority, setting out what this authority is.2 On the other hand, a Federal court, having power to issue a writ of habeas corpus, may discharge a person arrested in contravention of the constitution and laws of the United States. When the detention, however, is by conviction in a state court, the proper mode of revision is writ of error, though when the state court had not jurisdiction, then the writ of habeas corpus may issue from a Federal court, and under it the prisoner may be released."

§ 536. It is not within the constitutional power of the president of the United States to suspend the

shall in no case extend to a prisoner in jail, unless when he is in custody under or by color of the authority of the United States, or is committed for trial before some court thereof, or is in custody for an act done or omitted in pursuance of the law of the United States, or of an order, process, or decree of a court or judge thereof, or is in custody in violation of the constitution, or of a law or treaty of the United States, or being a subject or citizen of a foreign state," etc.

To this case is added a learned and elaborate note on the habeas corpus jurisdiction of the Federal courts.

1 Tarble, in re, 13 Wall. 397. In a series of cases in state courts it has been held that the state court issuing the writ is to determine whether the Federal arrest is illegal. See Whart. Cr. Pl. & Pr., § 980, for authorities.

arrest.

Power to writ be

suspend

But this would put in the state courts the power of ultimately reviewing the action of the Federal courts, and thereby destroying Federal supremacy, and introducing as many appellate courts as there are states. And in a note to McConnologue, in re, 107 Mass. 154, it is stated that in Massachusetts the supreme court now acquiesces in the rule laid down in Tarble's Case, denying the supervisory jurisdiction of the state courts. S. P., Davis, J., of N. Y. Supreme Court, in McDonnell's Case, 11 Blatch. 79.

2 Tarble, in re, 13 Wall. 397; Robinson, ex parte, 6 McLean, 355.

Whart Crim. Pl. & Pr., § 981. ♦ Ibid.

5 Brown v. U. S., 14 Am. Law Reg. N. S. 566; Lange, ex parte, 18 Wall. 163, and cases cited supra, § 524.

longs exclusively to congress.

operation of the writ, or to authorize such suspension by a military officer. The prerogative of suspending the writ belongs exclusively to congress.1

1 Merryman, ex parte, Taney, 246; McCall v. McDowell, 1 Abb. U. S. 212; Field, ex parte, 5 Blatch. C. C. 63; Griffin v. Wilcox, 21 Ind. 370; Kemp v. State, 16 Wis. 359; see, however, pamphlet by Mr. Binney, Phila., 1862, and other papers referred to in Whart. Cr. Pl. & Pr., § 979.

On this topic Judge Cooley (Const. Law, 1880, p. 289) thus speaks: "The privilege of the writ consists in this: that, when one complains that he is unlawfully imprisoned or deprived of his liberty, he shall be brought without delay before the proper court or magistrate for an examination into the cause of his detention, and shall be discharged if the detention is found to be unwarranted. The suspension of the privilege consists in taking away this right to an immediate hearing and discharge, and in authorizing arrests and detentions without regular process of law. Such suspension has been many times declared in Great Britain, or in some section of the British empire, within the present century; sometimes in view of threatened invasion, and sometimes when risings among the people had taken place or were feared, and when persons whose fidelity to the government was suspected, and whose influence for evil might be powerful, had as yet committed no overt act of which the law could take cognizance. It has been well said that the suspension of the habeas corpus is a suspension of Magna Charta (May, Const. Hist., ch. 11), and nothing but a great

622

national emergency could justify or excuse it. The constitution limits it within narrower bounds than do the legislative precedents in Great Britain.

"The power to suspend this privilege is a legislative power, and the president cannot exercise it except as authorized by law. The suspension does not legalize what is done while it continues; it merely suspends for the time this particular remedy. All other remedies for illegal arrests remain, and may be pursued against the parties making or continuing them. It is customary, after the writ has been suspended in Great Britain, to pass acts of indemnity for the protection of those in authority, who, in the performance of their duties to the state, felt themselves warranted in arresting suspected persons while the suspension continued. Something similar has been done in this country by provisions in state constitutions; see Drehman v. Stifle, 8 Wall. 595; Hess v. Johnson, 3 W. Va. 645; but as a right of action arising under the principles of the common law is property as much as are tangible things, it is,not believed the right could be destroyed by statute; Griffin v. Wilcox, 21 Ind. 370; Johnson v. Jones, 44 Ill.' 142; see Milligan v. Hovey, 3 Biss. 1.

"Nothing in this provision hinders the states from suspending the privilege of this writ issuing from their own courts, and the declaration of martial law in the state has the effect of sus pending it; Luther v. Borden, 7 How. 1."

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