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Though the principle that the King can do no wrong is, as Blackstone says, "a necessary and fundamental principle of the English Constitution," the English subject aggrieved by his sovereign, is in fact granted redress by the use of either the "petition of right" or of the "monstrans de droit." The first remedy, dating from the time of Edward I, lies where the government is in full possession of hereditaments or chattels, to which the claimant lays title. Upon this petition the King, as a matter of course, indorses soit droit fait al partie, whereupon the matter is determined upon issue or demurrer as in a suit between private individuals. The monstrans de droit was originally employed only in cases where the right of both the King and the subject appears upon record.

Though, according to English constitutional law, the King is not subject to suit civilly or criminally, all of his agents, from the highest to the lowest, are. For any act not warranted by law that they may commit they are responsible in the ordinary courts of law to private citizens injured by them, and they may not plead the command of the crown in justification of an act otherwise illegal.

In America the same principle of official responsibility applies, with, however, these exceptions. In the first place, we have no chief executive who is exempt from responsibility to law. In the second place our legislatures, federal and state, have limited legislative powers, especially as to the taking of life, liberty, and property without due process of law. Thus in England an official can justify, in all cases, if he can show an authority derived from an act of Parliament; in the United States, however, he must be able to point to a legislative act which can be shown to be in conformity with the conditions imposed by our written constitutions. other respects, however, our citizens are not so favorably situated as regards claims against the State as they are in England, for the two remedies, the Petition of Right and the Monstrans de droit, have not found a place in our jurisprudence. In some classes of

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cases, as we shall see, the United States, and several of the States here made provision for suits against themselves. But in all other cases, the citizen, though he may hold the public officials to a strict legal responsibility, is without the right to sue the State, the principle being unreservedly accepted that the sovereignty of the State implies freedom from suit against its will.2

§ 612. Chisholm v. Georgia.

Hamilton's and Marshall's position that, under the new Constitution, the States of the Union would not be held amenable to suits brought by citizens of other States soon proved erroneous. In the case of Chisholm v. Georgia,3 decided in 1793, it was held that, under the terms of the federal Constitution, which provided that the judicial power of the Federal Government should extend to all cases "between a State and citizens of another State," a State might be made party defendant in a suit brought by a citizen of another State. The non-suability of a State apart from specific

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2 In The Federalist (No. LXXXI) Hamilton declares: "It is inherent in the nature of sovereignty, not to be amenable to the suit of an individual without its consent. This is the general sense, and the general practice of mankind." Hamilton then goes on to argue that the States would continue to enjoy this exemption under the Constitution the adoption of which he was arguing. "The exemption," he says, as one of the attributes of sovereignty, is now enjoyed by the government of every State in the Union. Unless, therefore, there is a surrender of this immunity in the plan of the Constitution, it will remain with the States and the danger intimated must be merely ideal. The circumstances which are necessary to produce an alienation of state sovereignty were discussed in considering the article of taxation, and need not be repealed here. A recurrence to the principles there established will satisfy us that there is no color to pretend that the state governments would by the adoption of the plan, be divested of the privilege of paying their own debts in their own way, free from every constraint, but that which flows from the obligation of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretensions to a compulsive force. They confer no right of action, independent of the sovereign will." Marshall and Madison in the Virginia convention that ratified the new Constitution denied that it gave to the federal courts jurisdiction of suits that might be brought against a State by a citizen of another State (Eliot's Debates, III, 533, 555).

32 Dall. 419; 1 L. ed. 440.

4 In the case of Georgia v. Brailsford (2 Dall. 402; 1 L. ed. 433), it had already been held that a State might appear as party plaintiff in a suit against a citizen of another State.

constitutional provision to the contrary was not passed upon. The only question was whether, considering the general political doctrines prevailing at the time of the adoption of the Constitution, the framers of that instrument could properly be held to have intended, by the use of the words "between a State and citizens of another State," that this derogation from the sovereignty of the States should exist. Justice Iredell argued that, under the Constitution, the federal courts could take jurisdiction only in those cases in which a State could, according to generally accepted principles of law, be properly made a party, namely, where it appeared as plaintiff, or consented to appear as defendant. Justices Blair, Cushing, and Wilson, and Chief Justice Jay, however, held that not only did the words of the Constitution include all cases in which a State was a party, whether plaintiff or defendant, but that there was nothing in the status of the States under the Constitution that would negative this literal interpretation of the grant of federal judicial power.

§ 613. The Eleventh Amendment.

The popular objection to this decision immediately aroused and manifested in the adoption of the Eleventh Amendment is a matter of familiar history. The phraseology that the judicial power of the United States "shall not be construed to extend," instead simply that it "shall not 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 or subjects of any foreign State, was employed in order to give to the Amendment a retroactive effect, and thus defeat suits similar to that of Chisholm against Georgia, already pending. And thus when the first of these pending cases came before the Supreme Court, it declared, in a unanimous opinion, that all these cases should be dismissed because of want of jurisdiction.

It will be observed that the Eleventh Amendment does not in terms declare that the judicial power of the United States shall 5 Hollingsworth v. Virginia, 3 Dall. 378; 1 L. ed. 644.

not be construed to extend to suits brought against a State by its own citizens. Nor is there anywhere in the Constitution a declaration that the United States itself shall not be sued by one of its own citizens. The Supreme Court has, however, held that, in the absence of an express grant of jurisdiction, such suits are, by the generally accepted principles of public law, beyond the jurisdiction of the courts. Indeed, in the case of Hans v. Louisiana the court held that the decision in Chisholm v. Georgia had been an erroneous one in holding that a State could-be sued by other than its own citizens. After referring to the views of Madison and Marshall, expressed in the Virginia convention, and of Hamilton in The Federalist, and the reception met by the decision in Chisholm v. Georgia, the court declared: "It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just; and they apply equally to the present case as to that [Chisholm v. Georgia] then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. . . . The truth is, that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. . The suability of a State without its consent was a thing unknown to the law. It was fully shown in an exhaustive examination of the old law by Mr. Justice Iredell in his [dissenting] opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has in any way been presented."

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In New Hampshire v. Louisiana the Supreme Court refused to countenance the attempt of citizens to evade the operation of the Eleventh Amendment by transferring their pecuniary claims to another State and having that State bring suit in their behalf.

6134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842. 7108 U. S. 76; 2 Sup. Ct. Rep. 176; 27 L. ed. 656.

In this case the court found that in fact the original owners of the bonds and coupons in question still remained the real parties of interest, though not the nominal parties of record, and that, therefore, the suit was not a bona fide one between States. The court said: "The evident purpose of the Amendment, so promptly proposed and finally adopted, was to prohibit all suits against a State by or for citizens of other States, or aliens,. without the consent of the State to be sued, and, in our opinion, one State cannot create a controversy with another State within the meaning of that term of the Constitution, by assuming the prosecution of debts owing by the other State to its citizens."

§ 614. South Dakota v. North Carolina.

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In the case of South Dakota v. North Carolina, however, the true party of interest was shown to be the plaintiff State. Jurisdiction was assumed by the Supreme Court and a judgment and decree awarded against the defendant State. The facts of this important case were these:

In 1849 the State of North Carolina chartered a railroad and subscribed for twenty thousand shares of stock of one hundred dollars each. At the same time an issue of bonds was provided for and these shares of stock, thus held by the State, pledged for their payment. These bonds ran for thirty years and became due in 1897. In 1879, however, the State had compromised its debt, including all except about $250,000 of these bonds. In 1901 the owner of several of these unpaid bonds gave ten of them outright to the State of South Dakota, which State by legislative act authorized the acceptance of them and the institution of suit upon them and the employment for this purpose, by the attorney-general, of special counsel who should "be entitled to reasonable compensation out of the recoveries and collections in such suits and actions." Whereupon original suit in the Supreme Court of the United States against the State of North Carolina was instituted. The Supreme Court, by a bare majority of five justices to four, 8 192 U. S. 286; 24 Sup. Ct. Rep. 269; 48 L. ed. 448.

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