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case arising under the Constitution or laws of the United States is cognizable in the courts of the Union, whoever may be the parties to that case. “Had any doubt existed with respect to the just construction of this part of the section, that doubt would have been removed by the enumeration of those cases to which the jurisdiction of the federal courts are extended in consequence of the character of the parties. In that enumeration we find “controversies between two or more States, between a State and citizens of another State, between a State and citizens thereof, and between a State and foreign states, citizens or subjects.” “One of the express objects for which the judicial department was established, is the decision of controversies between States, and between a State and individuals. The mere circumstance that a State is a party, gives jurisdiction to the court. How, then, can it be contended that the very same instrument, in the very same section, should be so construed as that this same circumstance should withdraw a case from the jurisdiction of the court, when the Constitution or laws of the United States are supposed to have been violated 2 The Constitution gave to every person having a claim upon a State a right to submit his case to the court of the nation. However unimportant his claim might be, however little the community might be interested in its decisions, the framers of our Constitution thought it necessary, for the purposes of justice, to provide a tribunal as superior to influence as possible, in which that claim might be decided. Can it be imagined that the same persons considered a case involving the Constitution of our country and the majesty of the laws, questions in which every American citizen must be deeply interested, as withdrawn from this tribunal because a State is a party **

* Marshall on the Constitution, pp. 224–7.

After stating he considered that, as a “political axiom, the “judicial power of every well-regulated government must be coextensive with the legislature, and must be capable of deciding every judicial question which grows out of the Constitution and laws,” he says, –

“There is certainly nothing in the circumstances under which our Constitution was formed, nothing in the history of the times, which would justify the opinion that the confidence reposed in the States was so implicit as to leave in them and their tribunals the power of resisting or defeating, in the form of law, the legitimate measures of the Union. The requisitions of congress under the Confederation, were as constitutionally obligatory as the laws enacted by the present congress. That they were as universally disregarded is a fact of universal notoriety.” "

And, again, –

“If jurisdiction depended entirely on the character of the parties, and was not given when the parties have an original right-to come into court, that part of the second section of the third article which extends the judicial power to all cases arising under the Constitution and laws of the United States would be mere surplusage. It is to give jurisdiction when the character of the parties would not give it, that this very important part of the clause was inserted. It may be true, that the partiality of the State tribunals, in ordinary controversies between a State and its citizens, was not apprehended, and therefore the judicial power of the Union was not extended to such cases; but this was not the sole nor the greatest object for which this department was created. A more

Marshall on the Constitution, p. 230.

important, a much more interesting object was the preservation of the Constitution and laws of the United States, so far as they can be preserved by judicial authority; and therefore the jurisdiction of the courts of the Union was expressly extended to all cases arising under that Constitution and those laws. If the Constitution or laws may be violated by proceedings instituted by a State against its own citizens, and if that violation be such as essentially to affect the Constitution and laws, such as to arrest the progress of government in its constitutional course, why should these cases be excepted from that provision which extends the judicial power of the Union to all cases arising under the Constitution and laws 2 “After bestowing on this subject the most attentive consideration, the court can perceive no reason, founded on the character of the parties, for introducing the exception which the Constitution has not made ; and we think the judicial power, as originally given, extends to all cases arising under the Constitution or a law of the United States, whoever may be the parties.”"

Speaking of the eleventh amendment, which is in these words, – “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 or subjects of any foreign state, – he says, –

“It is a part of our history, that, at the adoption of the Constitution, all the States were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts formed a very serious objection to that

* Marshall on the Constitution, p. 233.

instrument. Suits were instituted, and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehension that was so extensively entertained, this amendment was proposed in congress, and adopted by the State legislatures. That its motive was not to maintain the sovereignty of a State from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more States, or between a State and a foreign state: the jurisdiction of the court still extends to these cases, and in these a State may still be sued. We must ascribe the amendment to some other cause than the dignity of a State. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a State, or from prosecuting one that might be commenced before the adoption of the amendment, were persons who might probably be creditors. There was not much reason to fear that foreign or sister States would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by States. “The first impression made on the mind by this amendment is, that it was intended for those cases, and those only, in which some demand against a State is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a State the full power of consulting its convenience in the adjustment of its debts, or of other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts as to strip the government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violence. “The words of the amendment appear to the court to justify and require this construction. The judicial power is not “to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State,’” &c." *

He then goes on and explains what a suit is, that it is “some claim, demand, or request,” and gives Judge Blackstone's definition of the “remedy for every species of wrong,” which is “the being put in possession of that right whereof the party injured is deprived; ” and “the instrument whereby the remedy is obtained is a diversity of suits and actions.”

“Suits had been commenced in the Supreme Court against some of the States before this amendment was introduced into congress; and others might be commenced before it should be adopted by the State legislatures, and might be depending at the time of its adoption. The object of the amendment was not only to prevent the commencement of future suits, but to arrest the prosecution of those that might be commenced when this article should form a part of this Constitution. It therefore embraces both objects; and its meaning is, that the judicial power shall not be construed to extend to any suit which may be commenced, or which, if already commenced, may be prosecuted against a State by the citizens of another State. If a suit, brought into one court, and carried by a legal process to a supervising

* Marshall on the Constitution, p. 244.

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