1. The history of article XI of the amendment to the
Constitution, which provides that the judicial power of the federal
courts shall not extend to suits against a state by a citizen of
another state, or by citizens or subjects of a foreign state, and
the causes which led to its adoption, reviewed.
2. Unless the state prosecuted consents, that amendment
prohibits the court from entertaining jurisdiction of a cause in
which one state seeks relief against another state on behalf of its
citizens in a matter in which the state prosecuting has no interest
of its own. One state cannot create a controversy with another
state, within the meaning of that term as used in the judicial
clauses of the Constitution, by assuming the prosecution of debts
owing by the other state to its citizens.
3. The relation of one of the United States to its citizens is
not that of an independent sovereign state to its citizens. A
sovereign state seeking redress of another sovereign state on
behalf of its citizens can resort to war on refusal, which a state
cannot do.
4. The qualifications of the duty of a sovereign state to assume
the collection of the debts of its citizens from another sovereign
state considered and stated.
The case on which the opinion is given is thus stated by the
Court.
On the 18th of July, 1879, the General Court of New Hampshire
passed an act of which the following is a copy:
"
An act to protect the rights of citizens of this
state"
"
holding claims against other states"
"
Be it enacted by the Senate and House of
Representatives"
"
in general court convened:"
"SECTION 1. Whenever any citizen of the state shall be the owner
of any claim against any of the United States of America, arising
upon a written obligation to pay money issued by such state, which
obligation shall be past due and unpaid, such citizen holding such
claim may assign the same to the State of New Hampshire and deposit
the assignment thereof, duly
Page 108 U. S. 77
executed and acknowledged in the form and manner provided for
the execution and acknowledgment of deeds of real estate by the
laws of this state, together with all the evidence necessary to
substantiate such claim, with the Attorney General of the
state."
"SEC. 2. Upon each deposit's being made, it shall be the duty of
the Attorney General to examine such claim and the evidence
thereof, and if in his opinion there is a valid claim which shall
be just and equitable to enforce, vested by such assignment in the
State of New Hampshire, he, the Attorney General, shall, upon the
assignor of such claim depositing with him such sum as he, the said
Attorney General, shall deem necessary to cover the expenses and
disbursements incident to, or which may become incident to, the
collection of said claim, bring such suits, actions, or proceedings
in the name of the State of New Hampshire in the Supreme Court of
the United States, as he, the said Attorney General, shall deem
necessary for the recovery of the money due upon such claim, and it
shall be the duty of the said Attorney General to prosecute such
action or actions to final judgment, and to take such other steps
as may be necessary after judgment for the collection of said claim
and to carry such judgment into effect, or, with the consent of the
assignor, to compromise, adjust, and settle such claim before or
after judgment."
"SEC. 3. Nothing in this act shall authorize the expenditure of
any money belonging to this state, but the expenses of said
proceedings shall be paid by the assignor of such claim, and the
assignor of such claim may associate with the Attorney General in
the prosecution thereof, in the name of the State of New Hampshire,
such other counsel as the said assignor may deem necessary, but the
state shall not be liable for the fees of such counsel or any part
thereof."
"SEC. 4. The Attorney General shall keep all moneys collected
upon such claim, or by reason of any compromise of any such claim,
separate and apart from any other moneys of this state which may be
in his hands, and shall deposit the same to his own credit, as
special trustee under this act, in such bank or banks as he shall
select, and the said Attorney General shall pay to the assignor of
such claims all such sums of money as may be recovered by him in
compromise or settlement of such claims, deducting therefrom all
expenses incurred by said attorney not before that time paid by the
assignor. "
Page 108 U. S. 78
"SEC. 5. This act shall take effect on its passage."
Under this act, six of the consolidated bonds of the State of
Louisiana, particularly described in the cases of
State ex Rel.
Elliott v. Jumel and
Elliott v. Wiltz, 107 U.
S. 711. were assigned to the State of New Hampshire by
one of its citizens. This assignment was made for the purposes
contemplated in the act, and passed to the state no other or
different title than it would acquire in that way. After the
assignment was perfected, a bill in equity was filed in this Court
in the name of the State of New Hampshire, as complainant, against
the State of Louisiana and the several officers of that state who
compose the board of liquidation provided for in the act
authorizing the issue of the bonds. The averments in the bill are
substantially the same as those in
Elliott v. Jumel, save
only that in this case the ownership of the bonds specially
involved is stated to be in New Hampshire, while in that it was in
Elliott and his associates. The prayer is in substance for a decree
that the bonds and the act and constitutional amendment of 1874
constitute a valid contract between Louisiana and the holders of
its bonds; that the defendants and each of them may be prohibited
from diverting the proceeds of the taxes levied under the act from
the payment of the interest, and that the provisions of the debt
ordinance of 1879 may be adjudged void and of no effect, because
they impair the obligation of the contract. The bill was signed in
the name of New Hampshire by the Attorney General of that state,
and also by the same counsel who appeared for Elliott, Gwynn &
Walker in their suit in equity just decided.
On the 15th of May, 1880, the Legislature of New York passed the
following act:
"
An act to protect the rights of citizens of this state
owning"
"
and holding claims against other states"
"
The people of the State of New York, represented in
Senate"
"
and assembly, do enact as follows:"
"SECTION 1. Any citizen of this state, being the owner and
holder of any valid claim against any of the United States of
Page 108 U. S. 79
America arising upon a written obligation to pay money made,
executed, and delivered by such state, which obligation shall be
past due and unpaid, may assign the same to the State of New York
and deliver the assignment thereof to the Attorney General of the
state. Such assignment shall be in writing, and shall be duly
acknowledged before an officer authorized to take the
acknowledgment of deeds, and the certificate of such acknowledgment
shall be duly endorsed upon such assignment before the delivery
thereof. Every such assignment shall contain a guarantee on the
part of the assignor, to be approved by the Attorney General, of
the expenses of the collection of such claim, and it shall be the
duty of the Attorney General, on receiving such assignment, to
require on behalf of such assignor such security for said guarantee
as he shall deem adequate."
"SEC. 2. Upon the execution and delivery of such assignment, in
the manner provided for in section one of this act, and furnishing
the security as in said section provided, and the delivery of such
claim to him, the Attorney General shall bring and prosecute such
action or proceeding, in the name of the State of New York as shall
be necessary for the recovery of the money due on such claim, and
the said Attorney General shall prosecute such action or proceeding
to final judgment, and shall take such proceedings after judgment
as may be necessary to effectuate the same."
"SEC. 3. The Attorney General shall forthwith deliver to the
treasurer of the state, for the use of such assignor, all moneys
collected upon such claim, first deducting therefrom all expenses
incurred by him in the collection thereof, and said assignor, or
his legal representatives, shall be paid said money by said
treasurer upon producing the check or draft therefor of the
Attorney General to his or their order, and proof to his or their
identity."
"SEC. 4. This act shall take effect immediately."
On the 20th of April, 1881, E. K. Goodnow and Benjamin Graham,
being the holders and owners of thirty coupons cut from ten of the
consolidated bonds of Louisiana falling due January 1, 1880, July
1, 1880, and January 1, 1881, assigned them to the State of New
York by an instrument in writing, of which the following is a
copy:
Page 108 U. S. 80
"Know all men by these presents, that we, the undersigned,
citizens of the State of New York, being the owners and holders of
valid claims against the State of Louisiana, arising upon written
obligations to pay money, made, executed, and delivered by the
State of Louisiana, and now past due and unpaid, being the coupons
hereto annexed, in consideration of one dollar to each of us paid
by the State of New York, and for other good and valuable
considerations, hereby assign and transfer the said claims and
coupons to the State of New York."
"And we do hereby covenant with the said state that if an
attempt is made by it to collect the said claim from the State of
Louisiana we will pay all the expenses of the collection of the
same."
"In witness whereof we have hereunto set our hands and affixed
our seals this twentieth day of April, in the year of our Lord one
thousand eight hundred and eighty-one."
"E. K. GOODNOW [L.S.]"
"BENJ. GRAHAM [L.S.]"
"Sealed and delivered in presence of"
"FRANK M. CARSON"
Page 108 U. S. 85
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
After stating the case, he continued:
Page 108 U. S. 86
The first question we have to settle is whether, upon the facts
shown, these suits can be maintained in this Court.
Article III, sec. 2, of the Constitution provides that the
judicial power of the United States shall extend to "controversies
between two or more states," and "between a state and citizens of
another state." By the same article and section it is also provided
that in cases "in which a state shall be a party, the supreme court
shall have original jurisdiction." By the Judiciary Act of 1789, c.
20, sec. 13, 1 Stat. 80, the Supreme Court was given
"exclusive jurisdiction of all controversies of a civil nature
where a state is a party, except between a state and its citizens,
and except, also, between a state and citizens of other states, or
aliens, in which latter case it shall have original but not
exclusive jurisdiction."
Such being the condition of the law, Alexander Chisholm, as
executor of Robert Farquar, commenced an action of assumpsit in
this Court against the State of Georgia, and process was served on
the governor and attorney general.
Chisholm v.
Georgia, 2 Dall. 419. On the 11th of August, 1792,
after the process was thus served, Mr. Randolph, the Attorney
General of the United States, as counsel for the plaintiff, moved
for a judgment by default on the fourth day of the next term,
unless the state should then, after notice, show cause to the
contrary. At the next term, Mr. Ingersoll and Mr. Dallas presented
a written remonstrance and protestation on behalf of the state
against the exercise of jurisdiction, but in consequence of
positive instructions they declined to argue the question. Mr.
Randolph thereupon proceeded alone, and in opening his argument
said:
"I did not want the remonstrance of Georgia to satisfy me that
the motion which I have made is unpopular. Before the remonstrance
was read, I had learnt from the acts of another state, whose will
must always be dear to me, that she too condemned it."
On the 19th of February, 1793, the judgment of the court was
announced and the jurisdiction sustained, four of the justices
being in favor of granting the motion and one against it. All the
justices who heard the case filed opinions, some of which were very
elaborate, and it is evident the subject received
Page 108 U. S. 87
the most careful consideration. Mr. Justice Wilson, in his
opinion, uses this language, p.
2 U. S. 465:
"Another declared object [of the Constitution] is, 'to establish
justice.' This points, in a particular manner, to the judicial
authority. And when we view this object in conjunction with the
declaration 'that no state shall pass a law impairing the
obligation of contracts,' we shall probably think that this object
points, in a particular manner, to the jurisdiction of the court
over the several states. What good purpose could this
constitutional provision secure if a state might pass a law
impairing the obligation of its own contracts, and be amenable, for
such violation of right, to no controlling judiciary power?"
And Chief Justice Jay, p.
2
U. S. 479:
"The extension of the judiciary power of the United States to
such controversies appears to me to be wise, because it is
honest, and because it is
useful. It is
honest, because it provides for doing justice without
respect to persons, and, by securing individual citizens as well as
states in their respective rights, performs the promise which every
free government makes to every free citizen, of equal justice and
protection. It is
useful because it is honest; because it
leaves not even the most obscure and friendless citizen without
means of obtaining justice from a neighboring state; because it
obviates occasions of quarrels between states on account of the
claims of their respective citizens; because it recognizes and
strongly rests on this great moral truth, that justice is the same
whether due from one man or a million, or from a million to one
man; because it teaches and greatly appreciates the value of our
free republican national government, which places all our citizens
on an equal footing, and enables each and every of them to obtain
justice without any danger of being overborne with the might and
number of their opponents, and because it brings into action and
enforces the great and glorious principle that the people are the
sovereign of this country, and consequently that fellow citizens
and joint sovereigns cannot be degraded by appearing with each
other in their own courts to have their controversies
determined."
Prior to this decision, the public discussions had been
confined
Page 108 U. S. 88
to the power of the court under the Constitution to entertain a
suit in favor of a citizen against a state, many of the leading
members of the convention arguing, with great force, against it. As
soon as the decision was announced, steps were taken to obtain an
amendment of the Constitution withdrawing jurisdiction. About the
time the judgment was rendered, another suit was begun against
Massachusetts, and process served on John Hancock, the governor.
This led to the convening of the general court of that
commonwealth, which passed resolutions instructing the senators and
requesting the members of the House of Representatives from the
state
"to adopt the most speedy and effectual measures in their power
to obtain such amendments in the Constitution of the United States
as will remove any clause or articles of the said Constitution
which can be construed to imply or justify a decision that a state
is compellable to answer in any suit by an individual or
individuals in any courts of the United States."
Other states also took active measures in the same direction,
and, soon after the next Congress came together, the Eleventh
Amendment to the Constitution was proposed, and afterwards ratified
by the requisite number of states, so as to go into effect on the
eighth of January, 1798. That amendment is as follows:
"The judicial power of the United States shall not be construed
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 citizens and subjects of any foreign state."
Under the operation of this amendment the actual owners of the
bonds and coupons held by New Hampshire and New York are precluded
from prosecuting these suits in their own names. The real question
therefore is whether they can sue in the name of their respective
states after getting the consent of the state, or, to put it in
another way, whether a state can allow the use of its name in such
a suit for the benefit of one of its citizens.
The language of the amendment is in effect that the judicial
power of the United States shall not extend to any suit commenced
or prosecuted by citizens of one state against another
Page 108 U. S. 89
state. No one can look at the pleadings and testimony in these
cases without being satisfied, beyond all doubt, that they were in
legal effect commenced and are now prosecuted solely by the owners
of the bonds and coupons. In New Hampshire, before the Attorney
General is authorized to begin a suit, the owner of the bond must
deposit with him a sum of money sufficient to pay all costs and
expenses. No compromise can be effected except with the consent of
the owner of the claim. No money of the state can be expended in
the proceeding, but all expenses must be borne by the owner, who
may associate with the Attorney General such counsel as he chooses,
the state being in no way responsible for fees. All moneys
collected are to be kept by the Attorney General, as special
trustee, separate and a part from the other moneys of the state,
and paid over by him to the owner of the claim, after deducting all
expenses incurred, not before that time paid by the owner. The
bill, although signed by the Attorney General, is also signed, and
was evidently drawn, by the same counsel who prosecuted the suits
for the bondholders in Louisiana, and it is manifested in many ways
that both the state and the Attorney General are only nominal
actors in the proceeding. The bond owner, whoever he may be, was
the promoter and is the manager of the suit. He pays the expenses,
is the only one authorized to conclude a compromise, and, if any
money is ever collected, it must be paid to him without even
passing through the form of getting into the treasury of the
state.
In New York, no special provision is made for compromise or the
employment of additional counsel, but the bondholder is required to
secure and pay all expenses and gets all the money that is
recovered. This state as well as New Hampshire is nothing more nor
less than a mere collecting agent of the owners of the bonds and
coupons, and while the suits are in the names of the states, they
are under the actual control of individual citizens, and are
prosecuted and carried on altogether by and for them.
It is contended, however, that notwithstanding the prohibition
of the amendment, the states may prosecute the suits, because, as
the "sovereign and trustee of its citizens," a state is
Page 108 U. S. 90
"clothed with the right and faculty of making an imperative
demand upon another independent state for the payment of debts
which it owes to citizens of the former."
There is no doubt but one nation may, if it sees fit, demand of
another nation the payment of a debt owing by the latter to a
citizen of the former. Such power is well recognized as an incident
of national sovereignty, but it involves also the national powers
of levying war and making treaties. As was said in
United
States v. Dickelman, 92 U. S. 524,
if a sovereign assumes the responsibility of presenting the claim
of one of his subjects against another sovereign, the prosecution
will be "as one nation proceeds against another, not by suit in the
courts, as of right, but by diplomatic negotiation, or, if need be,
by war."
All the rights of the states, as independent nations, were
surrendered to the United States. The states are not nations,
either as between themselves or toward foreign nations. They are
sovereign within their spheres, but their sovereignty stops short
of nationality. Their political status at home and abroad is that
of states in the United States. They can neither make war nor peace
without the consent of the national government. Neither can they,
except with like consent, "enter into any agreement or compact with
another state." Art. 1 sec. 10, cl. 3.
But it is said that even if a state, as sovereign trustee for
its citizens, did surrender to the national government its power of
prosecuting the claims of its citizens against another state by
force, it got in lieu the constitutional right of suit in the
national courts. There is no principle of international law which
makes it the duty of one nation to assume the collection of the
claims of its citizens against another nation, if the citizens
themselves have ample means of redress without the intervention of
their government. Indeed, Sir Robert Phillimore says in his
Commentaries on International Law, vol. 2 (2d ed.) p. 12:
"As a general rule, the proposition of Martens seems to be
correct, that the foreigner can only claim to be put on the same
footing as the native creditor of the state."
Whether this be in all respects true or not, it is clear that no
nation ought to interfere, except under very extraordinary
circumstances,
Page 108 U. S. 91
if the citizens can themselves employ the identical and only
remedy open to the government if it takes on itself the burden of
the prosecution. Under the Constitution as it was originally
construed, a citizen of one state could sue another state in the
courts of the United States for himself, and obtain the same relief
his state could get for him if it should sue. Certainly when he can
sue for himself there is no necessity for power in his state to sue
in his behalf, and we cannot believe it was the intention of the
framers of the Constitution to allow both remedies in such a case.
Therefore, the special remedy granted to the citizen himself, must
be deemed to have been the only remedy the citizen of one state
could have under the Constitution against another state for the
redress of his grievances, except such as the delinquent state saw
fit itself to grant. In other words, the giving of the direct
remedy to the citizen himself was equivalent to taking away any
indirect remedy he might otherwise have claimed, through the
intervention of his state, upon any principle of the law of
nations. It follows that when the amendment took away the special
remedy, there was no other left. Nothing was added to the
Constitution by what was thus done. No power taken away by the
grant of the special remedy was restored by the amendment. The
effect of the amendment was simply to revoke the new right that had
been given and leave the limitations to stand as they were. In the
argument of the opinions filed by the several justices in the
Chisholm case, there is not been an intimation that if the
citizen could not sue, his state could sue for him. 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 as used in the
judicial clauses of the Constitution, by assuming the prosecution
of debts owing by the other state to its citizens. Such being the
case, we are satisfied that we are prohibited both by the letter
and the spirit of the Constitution from entertaining these suits,
and
The bill in each of them is consequently dismissed.
