1. This Court has no jurisdiction of a suit brought by a foreign
state against a state of the Union without her consent. Pp.
292 U. S. 320,
292 U. S.
330.
2 The need for such consent, though not expressed in Art. III, §
2, cl. 1, of the Constitution, is clearly to be implied. P.
292 U. S.
321.
3. Clause 2 of § 2, Art. III, of the Constitution merely
distributes the jurisdiction conferred by Clause 1, and deals with
cases in which resort may be had to the original jurisdiction of
this Court in the exercise of the judicial power as previously
given. P.
292 U. S.
321.
4. Neither the literal sweep of the words of Clause 1, § 2, Art.
III, nor the absence of restriction in the letter of the Eleventh
Amendment, permits the conclusion that, in all controversies of the
sort described in Clause 1 and omitted from the words of the
Eleventh Amendment, a State may be sued without her consent. P.
292 U. S.
321.
5. Behind the words of these constitutional provisions are the
essential postulates that the controversies shall be found to be of
a justiciable character and that the states of the Union, still
possessing attributes of sovereignty, shall be immune from suits,
without their consent, save where there has been a surrender of
this immunity in the plan of the Constitution. P.
292 U. S.
322.
6. There has been such a surrender of immunity as respects suits
in this Court brought by one state of the Union against another, or
by the United States against a state, but not as respects (1) suits
against a state brought by citizens of another state or citizens of
a foreign state (expressly barred by the Eleventh Amendment), or
(2) suits against a the Union by its own citizens or by federal
corporations, or (3) suits against a the Union by foreign states.
P.
292 U. S.
328.
7. In construing the constitutional provision with respect to
suits by foreign states, consideration is given to the thought that
such suits may involve questions of national concern. P.
292 U. S.
331.
Leave to file denied.
Hearing upon the application of the Principality of Monaco for
leave to bring in this Court an action against Mississippi to
recover the principal and interest of certain
Page 292 U. S. 314
bonds issued by that state. Mississippi made her return to a
rule to show cause why the leave should not be granted.
Page 292 U. S. 317
MR. CHIEF JUSTICE HUGHES delivered the opinion of the Court.
The Principality of Monaco asks leave to bring suit in this
Court against the State of Mississippi upon bonds issued by the
state and alleged to be the absolute property of the
Principality.
The proposed declaration sets forth four causes of action. Two
counts are upon bonds known as Mississippi Planters' Bank Bonds,
dated March 1, 1833, the first count being upon eight bonds of
$1,000 each, due March 1, 1861, and the second count upon two bonds
of $1,000 each, due March 1, 1866, all with interest at 6 percent
per annum. The remaining two counts are upon bonds known as
Mississippi Union Bank Bonds, the third count being on twenty bonds
of $2,000 each, dated June 7, 1838, due February 5, 1850, and the
fourth count upon twenty-five bonds of $2,000 each, dated June 6,
1838, due February 5, 1858, all with interest at 5 percent per
annum. In each count, it was alleged that the bonds were
transferred and delivered to the Principality at its legation in
Paris, France, on or about September 27, 1933, as an absolute gift.
Accompanying the declaration and made a part of it is a letter of
the donors, dated September 26, 1933, stating that the bonds had
"been handed down from their respective families who purchased them
at
Page 292 U. S. 318
the time of their issue by the State of Mississippi;" that the
state had
"long since defaulted on the principal and interest of these
bonds, the holders of which have waited for some 90 years in the
hope that the state would meet its obligations and make
payment;"
that the donors had been advised that there was no basis upon
which they could maintain a suit against Mississippi on the bonds,
but that "such a suit could only be maintained by a foreign
government or one of the United States;" and that, in these
circumstances, the donors were making an unconditional gift of the
bonds to the Principality to be applied "to the causes of any of
its charities, to the furtherance of its internal development or to
the benefit of its citizens in such manner as it may select."
The State of Mississippi, in its return to the rule to show
cause why leave should not be granted, raises the following
objections: (1) that the Principality of Monaco is not a "foreign
state" within the meaning of § 2, Article III, of the Constitution
of the United States, and is therefore not authorized to bring a
suit against a state; (2) that the State of Mississippi has not
consented and does not consent that she be sued by the Principality
of Monaco, and that, without such consent, the state cannot be
sued; (3) that the Constitution, by § 10, cl. 3, Article I,
"forbids the State of Mississippi without the consent of
Congress, to enter into any compact or agreement with the
Principality of Monaco, and no compact, agreement or contract has
been entered into by the state with the Principality;"
(4) that the proposed litigation is an attempt by the
Principality "to evade the prohibitions of the Eleventh Amendment
of the Constitution of the United States;" (5) that the proposed
declaration does not state a controversy which is "justiciable
under the Constitution of the United States and cognizable under
the jurisdiction of this Court;" (6) that the alleged right of
action "has long since been defeated and
Page 292 U. S. 319
extinguished" by reason of the completion of the period of
limitation of action prescribed by the statutes of Mississippi;
that the plaintiff and its predecessors in title have been guilty
of laches, and that the right of action, if any, is now and for a
long time has been stale.
The state contends that the holders of her bonds had a statutory
right to sue the state by Virtue of the Act of February 15, 1833
(Hutchinson's Code, 1798-1848, Chap. 54, Art. 11, § 1;
State v.
Johnson, 25 Miss. 625); that, by the operation of a
constitutional amendment in 1856 abolishing the Superior Court of
Chancery, and until the adoption of the Revised Code of 1871, the
state had no statutory provision authorizing suits against her
(
Whitney v. State, 52 Miss. 732); that the Revised Code of
1871 (§ 1573) provided that the state might be sued and that Code
had no statute of limitations in respect to bonds or contracts
under seal; that a limitation of seven years as to actions upon
such obligations was imposed by the Act of April 19, 1873 (Laws
Miss. 1873, c. 26), and that the statute of limitations against the
bonds in question began to run on that date; that the right to sue
the state conferred by the Revised Code of 1871 was taken away by
the Code of 1880, which became effective on November 1st of that
year (
Gulf Export Co. v. State, 112 Miss. 452, 73 So.
281); that, meanwhile, in 1876, the constitution of the state was
amended so as to provide that the state should not
"assume, redeem, secure, or pay any indebtedness or pretended
indebtedness alleged to be due by the State of Mississippi to any
person, association, or corporation whatsoever, claiming the same
as owners, holders, or assignees of any bond or bonds, now
generally known as 'Union Bank' bonds and 'Planters Bank'
bonds,"
that this provision was incorporated in the Constitution of 1890
(§ 258), and that, since its adoption, no foreign state could
accept the bonds in question as a charitable donation in good
faith.
Page 292 U. S. 320
In reply to these objections, the Principality asserts that she
is a foreign state recognized as such by the Government of the
United States; that the consent of the State of Mississippi is not
necessary to give the Court jurisdiction; that the obligation of
the State of Mississippi to pay her bonds is not an agreement or a
compact with a foreign power within § 10, cl. 3, Article I of the
Constitution; that the action is not a subterfuge to evade the
Eleventh Amendment; that the cause of action is justiciable; that
no statute of limitations has run against the plaintiff or its
predecessors, and that neither has been guilty of laches. Upon the
last-mentioned points, the Principality urges that, under the
provisions of the statutes of Mississippi, holders of her bonds
never had an enforceable remedy which could be said to be barred by
the running of any state statute of limitations, and that the
Principality will be prepared in the course of the suit to meet the
defense of laches by showing the history of the efforts of the
holders of the bonds to procure payment.
These contentions have been presented in oral argument as well
as upon briefs. We find it necessary to deal with but one -- that
is, the question whether this Court has jurisdiction to entertain a
suit brought by a foreign state against a state without her
consent. That question, not hitherto determined, is now definitely
presented.
The Principality relies upon the provisions of § 2 of Article
III of the Constitution of the United States that the judicial
power shall extend to controversies "between a State, or the
Citizens thereof, and foreign states, Citizens or Subjects" (Clause
1), and that in cases "in which a State shall be Party" this Court
shall have original jurisdiction (Clause 2). The absence of
qualification requiring the consent of the state in the case of a
suit by a foreign state is asserted to be controlling. And the
point is stressed that the Eleventh Amendment
Page 292 U. S. 321
of the Constitution, providing that the judicial power shall not
be construed to extend to any suit against one of the United States
"by Citizens of another State, or by Citizens or subjects of any
Foreign state," contains no reference to a suit brought by a
foreign state.
The argument drawn from the lack of an express requirement of
consent to be sued is inconclusive. Thus, there is no express
provision that the United States may not be sued in the absence of
consent. Clause 1 of § 2 of Article III extends the judicial power
"to Controversies to which the United States shall be a Party."
Literally, this includes such controversies, whether the United
States be party plaintiff or defendant.
Williams v. United
States, 289 U. S. 553,
289 U. S. 573.
But, by reason of the established doctrine of the immunity of the
sovereign from suit except upon consent, the provision of Clause 1
of § 2 of Article III does not authorize the maintenance of suits
against the United States.
Williams v. United States,
supra. Compare 19 U. S.
Virginia, 6 Wheat. 264,
19 U. S.
411-412;
Minnesota v. Hitchcock, 185 U.
S. 373,
185 U. S. 384,
185 U. S. 386;
Kansas v. United States, 204 U. S. 331,
204 U. S.
341-342. And while Clause 2 of § 2 of Article III gives
this Court original jurisdiction in those cases in which "a State
shall be Party," this Court has no jurisdiction of a suit by a
state against the United States in the absence of consent.
Kansas v. United States, supra. Clause 2 merely
distributes the jurisdiction conferred by Clause 1, and deals with
cases in which resort may be had to the original jurisdiction of
this Court in the exercise of the judicial power as previously
given.
Duhne v. New Jersey, 251 U.
S. 311,
251 U. S.
314.
Similarly, neither the literal sweep of the words of Clause 1 of
§ 2 of Article III nor the absence of restriction in the letter of
the Eleventh Amendment permits the conclusion that, in all
controversies of the sort described in Clause 1 and omitted from
the words of the Eleventh Amendment, a state may be sued without
her consent.
Page 292 U. S. 322
Thus, Clause 1 specifically provides that the judicial power
shall extend
"to all cases, in Law and Equity, arising under this
Constitution, the Laws of the United States, and Treaties made, or
which shall be made, under their Authority."
But, although a case may arise under the Constitution and laws
of the United States, the judicial power does not extend to it if
the suit is sought to be prosecuted against a state, without her
consent, by one of her own citizens.
Hans v. Louisiana,
134 U. S. 1;
Duhne v. New Jersey, supra, p.
251 U. S. 311. The
requirement of consent is necessarily implied. The state has the
same immunity in case of a suit brought by a corporation created by
act of Congress.
Smith v. Reeves, 178 U.
S. 436. Yet in neither case is the suit within the
express prohibition of the Eleventh Amendment. Again, the Eleventh
Amendment mentions only suits "in law or equity;" it does not refer
to suits in admiralty. But this Court has held that the Amendment
does not "leave open a suit against a state in the admiralty
jurisdiction by individuals, whether its own citizens or not."
Ex parte New York, No. 1, 256 U.
S. 490,
256 U. S.
498.
Manifestly we cannot rest with a mere literal application of the
words of § 2 of Article III, or assume that the letter of the
Eleventh Amendment exhausts the restrictions upon suits against
nonconsenting states. Behind the words of the constitutional
provisions are postulates which limit and control. There is the
essential postulate that the controversies, as contemplated, shall
be found to be of a justiciable character. There is also the
postulate that states of the Union, still possessing attributes of
sovereignty, [
Footnote 1] shall
be immune from suits without their consent save where there has
been "a surrender of this
Page 292 U. S. 323
immunity in the plan of the convention." The Federalist, No. 81.
The question is whether the plan of the Constitution involves the
surrender of immunity when the suit is brought against a state,
without her consent, by a foreign state.
The debates in the Constitutional Convention do not disclose a
discussion of this question. But Madison, in the Virginia
Convention, answering objections to the ratification of the
Constitution, clearly stated his view as to the purpose and effect
of the provision conferring jurisdiction over controversies between
states of the Union and foreign states. That purpose was suitably
to provide for adjudication in such cases if consent should be
given, but not otherwise. [
Footnote
2] Madison said:
"The next case provides for disputes between a foreign state and
one of our states, should such a case ever arise, and between a
citizen and a foreign citizen or subject. I do not conceive that
any controversy can ever be decided, in these courts, between
Page 292 U. S. 324
an American state and a foreign state, without the consent of
the parties. If they consent, provision is here made."
3 Elliot's Debates 533.
Marshall, in the same Convention, expressed a similar view.
Replying to an objection as to the admissibility of a suit by a
foreign state, Marshall said:
"He objects, in the next place, to its jurisdiction in
controversies between a state and a foreign state. Suppose, says
he, in such a suit, a foreign state is cast; will she be bound by
the decision? If a foreign state brought a suit against the
Commonwealth of Virginia, would she not be barred from the claim if
the federal judiciary thought it unjust? The previous consent of
the parties is necessary, and, as the federal judiciary will
decide, each party will acquiesce."
3 Elliot's Debates, 557. [
Footnote 3]
Hamilton, in the Federalist, No. 81, made the following emphatic
statement of the general principle of immunity:
"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, and the
exemption, 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
convention, 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
repeated 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 that 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 obligations of good
faith.
Page 292 U. S. 325
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. To what purpose would it be to authorize suits
against states for the debts they owe? How could recoveries be
enforced? It is evident it could not be done without waging war
against the contracting state, and to ascribe to the federal courts
by mere implication, and in destruction of a preexisting right of
the state governments, a power which would involve such a
consequence would be altogether forced and unwarrantable. [
Footnote 4]"
It is true that, despite these cogent statements of the views
which prevailed when the Constitution was ratified, the Court held,
in
Chisholm v.
Georgia, 2 Dall. 419, over the vigorous dissent of
Mr. Justice Iredell, [
Footnote
5] that a state was liable to suit by a citizen of another
state or of a foreign country. But this decision created such a
shock of surprise that the Eleventh Amendment was at once proposed
and adopted. As the Amendment did not in terms apply to a suit
against a state by its own citizen, the Court had occasion, when
that question was presented in
Hans v. Louisiana, supra,
(a case alleged to arise under the Constitution of the United
States), to give elaborate consideration to the application of the
general principle of the immunity of states from suits brought
against them without their consent. Mr. Justice Bradley delivered
the opinion of the Court and, in view of the importance of the
question, we quote at length from that opinion to show the
reasoning which
Page 292 U. S. 326
led to the decision that the suit could not be maintained. The
Court said (134 U.S. pp.
134 U. S. 12
et seq.):
"Looking back from our present standpoint at the decision in
Chisholm v. Georgia, we do not greatly wonder at the
effect which it had upon the country. Any such power as that of
authorizing the federal judiciary to entertain suits by individuals
against the states had been expressly disclaimed, and even
resented, by the great defenders of the constitution while it was
on its trial before the American people."
After quoting the statements of Hamilton, Madison, and Marshall,
the Court continued:
"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 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. Can we suppose that,
when the Eleventh Amendment was adopted, it was understood to be
left open for citizens of a state to sue their own state in the
federal courts, while the idea of suits by citizens of other
states, or of foreign states, was indignantly repelled? Suppose
that congress, when proposing the Eleventh Amendment, had appended
to it a proviso that nothing therein contained should prevent a
state from being sued by its own citizens in cases arising under
the Constitution or laws of the United States, can we imagine that
it would have been adopted by the states? The supposition that it
would is almost an absurdity on its face."
"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. . . . "
Page 292 U. S. 327
"The suability of a state without its consent was a thing
unknown to the law. This has been so often laid down and
acknowledged by courts and jurists that it is hardly necessary to
be formally asserted. It was fully shown by an exhaustive
examination of the old law by Mr. Justice Iredell in his opinion in
Chisholm v. Georgia, and it has been conceded in every
case since where the question has in any way been presented -- even
in the cases which have gone furthest in sustaining suits against
the officers or agents of states."
The Court then adverted to observations of Chief Justice
Marshall in
Cohens v.
Virginia, 6 Wheat. 264, which favored the argument
of the plaintiff in error, but, as those observations were
unnecessary to the decision in the case of
Cohens, the
Court was of the opinion that they should not "outweigh the
important considerations referred to which lead to a different
conclusion." [
Footnote 6]
The same principle of immunity was reiterated and applied by the
Court, upon the authority of
Hans v. Louisiana, in
Smith v. Reeves, supra, in deciding that a federal
corporation could not sue a state without her consent, although, as
we have seen, such a suit was not listed in the specific
prohibitions of the Eleventh Amendment.
In the case of
South Dakota v. North Carolina,
192 U. S. 286,
192 U. S. 318,
the Court observed that the expression in the opinion in
Hans
v. Louisiana of concurrence in the views announced by Mr.
Justice Iredell in his dissenting opinion in
Chisholm v.
Georgia could not be considered as a judgment of the Court in
view of the point which
Hans v. Louisiana actually
decided. But
South Dakota v. North Carolina did not
disturb the ruling in
Hans v. Louisiana or the principle
which that decision applied.
Page 292 U. S. 328
South Dakota v. North Carolina was a suit by one state
against another state, and did not present the question of the
maintenance either of a suit by individuals against a state or by a
foreign state against a state. As a suit by one state against
another state, it involved a distinct and essential principle of
the constitutional plan which provided means for the judicial
settlement of controversies between states of the Union, a
principle which necessarily operates regardless of the consent of
the defendant state. The reasoning of the Court in
Hans v.
Louisiana with respect to the general principle of sovereign
immunity from suits was recently reviewed and approved in
Williams v. United States, supra.
The question of that immunity, in the light of the provisions of
Clause 1 of § 2 of Article III of the Constitution, is thus
presented in several distinct classes of cases -- that is, in those
brought against a state (a) by another state of the Union; (b) by
the United States; (c) by the citizens of another state or by the
citizens or subjects of a foreign state; (d) by citizens of the
same state or by federal corporations, and (e) by foreign states.
Each of these classes has its characteristic aspect from the
standpoint of the effect upon sovereign immunity from suits, which
has been produced by the constitutional scheme.
1. The establishment of a permanent tribunal with adequate
authority to determine controversies between the states, in place
of an inadequate scheme of arbitration, was essential to the peace
of the Union. The Federalist, No. 80; Story on the Constitution, §
1679. With respect to such controversies, the states by the
adoption of the Constitution, acting "in their highest sovereign
capacity, in the convention of the people," waived their exemption
from judicial power. The jurisdiction of this Court over the
parties in such cases was thus established
Page 292 U. S. 329
"by their own consent and delegated authority" as a necessary
feature of the formation of a more perfect Union.
Rhode
Island v. Massachusetts, 12 Pet. 657, 720;
Louisiana v. Texas, 176 U. S. 1,
176 U. S. 16-17;
Missouri v. Illinois, 180 U. S. 208,
180 U. S.
240-241;
Kansas v. Colorado, 185 U.
S. 125,
185 U. S.
142-144;
206 U. S. 206 U.S.
46,
206 U. S. 83-85;
Virginia v. West Virginia, 246 U.
S. 565.
2. Upon a similar basis rests the jurisdiction of this Court of
a suit by the United States against a state, albeit without the
consent of the latter. While that jurisdiction is not conferred by
the Constitution in express words, it is inherent in the
constitutional plan.
United States v. North Carolina,
136 U. S. 211;
United States v. Texas, 143 U. S. 621,
143 U. S.
644-645;
162 U. S. 162 U.S.
1,
162 U. S. 90;
United States v. Michigan, 190 U.
S. 379,
190 U. S. 396;
Oklahoma v. Texas, 258 U. S. 574,
258 U. S. 581;
United States v. Minnesota, 270 U.
S. 181,
270 U. S. 195.
Without such a provision, as this Court said in
United States
v. Texas, supra, "the permanence of the Union might be
endangered."
3. To suits against a state, without her consent, brought by
citizens of another state or by citizens or subjects of a foreign
state, the Eleventh Amendment erected an absolute bar. Superseding
the decision in
Chisholm v. Georgia, supra, the Amendment
established in effective operation the principle asserted by
Madison, Hamilton, and Marshall in expounding the Constitution and
advocating its ratification. The "entire judicial power granted by
the Constitution" does not embrace authority to entertain such
suits in the absence of the state's consent.
Ex parte New York,
No. 1, supra, p.
256 U. S. 497;
Missouri v. Fiske, 290 U. S. 18,
290 U. S.
25-26.
4. Protected by the same fundamental principle, the states, in
the absence of consent, are immune from suits brought against them
by their own citizens or by federal corporations, although such
suits are not within the explicit
Page 292 U. S. 330
prohibitions of the Eleventh Amendment.
Hans v. Louisiana,
supra; Smith v. Reeves, supra; Duhne v. New Jersey, supra; Ex parte
New York, No. 1, supra.
5. We are of the opinion that the same principle applies to
suits against a state by a foreign state. The decision in
Cherokee Nation v.
Georgia, 5 Pet. 1, is not opposed, as it rested
upon the determination that the Cherokee nation was not a "foreign
state" in the sense in which the term is used in the Constitution.
The question now before us necessarily remained an open one. We
think that Madison correctly interpreted Clause 1 of § 2 of Article
III of the Constitution as making provision for jurisdiction of a
suit against a state by a foreign state in the event of the state's
consent, but not otherwise. In such a case, the grounds of coercive
jurisdiction which are present in suits to determine controversies
between states of the Union, or in suits brought by the United
States against a state, are not present. The foreign state lies
outside the structure of the Union. The waiver or consent on the
part of a state, which inheres in the acceptance of the
constitutional plan, runs to the other states who have likewise
accepted that plan, and to the United States as the sovereign which
the Constitution creates. We perceive no ground upon which it can
be said that any waiver or consent by a the Union has run in favor
of a foreign state. As to suits brought by a foreign state, we
think that the states of the Union retain the same immunity that
they enjoy with respect to suits by individuals whether citizens of
the United States or citizens or subjects of a foreign state. The
foreign state enjoys a similar sovereign immunity, and, without her
consent, may not be sued by a the Union.
The question of the right of suit by a foreign state against a
the Union is not limited to cases of
Page 292 U. S. 331
alleged debts or of obligations issued by a state and claimed to
have been acquired by transfer. Controversies between a state and a
foreign state may involve international questions in relation to
which the United States has a sovereign prerogative. One of the
most frequent occasions for the exercise of the jurisdiction
granted by the Constitution over controversies between states of
the Union has been found in disputes over territorial boundaries.
See Rhode Island v. Massachusetts, supra, p.
37 U. S. 737.
Questions have also arisen with respect to the obstruction of
navigation,
South Carolina v. Georgia, 93 U. S.
4; the pollution of streams,
Missouri v.
Illinois, 180 U. S. 208;
200 U. S. 200, and
the diversion of navigable waters,
Wisconsin v. Illinois,
278 U. S. 367;
289 U. S. 289 U.S.
395,
289 U. S. 400.
But, in the case of such a controversy with a foreign power, a
state has no prerogative of adjustment. No state can enter "into
and Treaty, Alliance, or Confederation" or, without the consent of
Congress, "into any Agreement or Compact . . . with a foreign
Power." Const. Art. I, § 10. The National Government, by virtue of
its control of our foreign relations, is entitled to employ the
resources of diplomatic negotiations and to effect such an
international settlement as may be found to be appropriate, through
treaty, agreement of arbitration, or otherwise. It cannot be
supposed that it was the intention that a controversy growing out
of the action of a state, which involves a matter of national
concern and which is said to affect injuriously the interests of a
foreign state, or a dispute arising from conflicting claims of a
the Union and a foreign state as to territorial boundaries, should
be taken out of the sphere of international negotiations and
adjustment through a resort by the foreign state to a suit under
the provisions of § 2 of Article III. In such a case, the state has
immunity from suit without her consent, and the National Government
is protected by the
Page 292 U. S. 332
provision prohibiting agreements between states and foreign
powers in the absence of the consent of the Congress. While, in
this instance, the proposed suit does not arise a question of
national concern, the constitutional provision which is said to
confer jurisdiction should be construed in the light of all its
applications.
We conclude that the Principality of Monaco, with respect to the
right to maintain the proposed suit, is in no better case than the
donors of the bonds, and that the application for leave to sue must
be denied.
Rule discharged, and leave denied.
[
Footnote 1]
See Briscoe v. Bank of
Kentucky, 11 Pet. 257,
36 U. S. 321;
Darrington v. Bank of
Alabama, 13 How. 12,
54 U. S. 17;
Beers v.
Arkansas, 20 How. 527,
61 U. S. 529;
In re Ayers, 123 U. S. 443,
123 U. S.
505.
[
Footnote 2]
There is no question but that foreign states may sue private
parties in the federal courts.
King of Spain v. Oliver, 2
Wash.C.C. 429, 431;
The Sapphire,
11 Wall. 164,
78 U. S. 167.
In the latter case, the Court said (pp.
78 U. S.
167-168):
"Our own government has largely availed itself of the like
privilege to bring suits in the English courts in cases growing out
of our late civil war. Twelve or more of such suits are enumerated
in the brief of the appellees, brought within the last five years
in the English law, chancery, and admiralty courts. There are
numerous cases in the English reports in which suits of foreign
sovereigns have been sustained, though it is held that a sovereign
cannot be forced into court by suit. [Cases cited.]"
In
Kingdom of Roumania v. Guaranty Trust Co., 250 F.
341, Ann.Cas.1918E, 524, the court held that the bringing of an
action by a foreign nation in a court of the United States to
recover a deposit placed to its credit in a bank was not a waiver
of its immunity as a sovereign from suit by other parties, and
hence that the court was without jurisdiction to permit the
defendant, by interpleader, to substitute as defendant another
party claiming a lien on the deposit as a creditor of the
plaintiff.
See also Republic of Columbia v. Cauca Co.,
190 U. S. 524;
Ex parte Muir, 254 U. S. 522.
[
Footnote 3]
See Story on the Constitution, § 1699; Willoughby on
the Constitution (2d ed.) § 885.
[
Footnote 4]
For statements by Madison and Marshall in the Virginia
Convention in relation to the nonsuability of states by
individuals,
see 3 Elliot's Debates 533, 555.
[
Footnote 5]
For comment upon the force of this dissent,
see Hans v.
Louisiana, 134 U. S. 1,
134 U. S. 12,
134 U. S. 14;
Williams v. United States, 289 U.
S. 553,
289 U. S. 574,
289 U. S.
576-577.
[
Footnote 6]
See Missouri v. Illinois, 180 U.
S. 208,
180 U. S. 240;
New Hampshire v. Louisiana, 108 U. S.
76.