State, in cases in which the State had obtained a judgment, civil or criminal, against a citizen, but in doing so had overruled a federal right, privilege, or immunity set up by that citizen. Upon the part of Virginia it was argued that not only did the grant by the Constitution of judicial power to the United States not contemplate a right to revise the decisions of state courts in which a State was a party (as in the case at bar, in which, being a criminal case, the State appeared as the original plaintiff), but that to exercise the right to reverse a judgment obtained in its favor in its courts would be, in effect, to entertain a suit against itself.

The facts upon which this case was founded were these: Congress had authorized the establishment of a lottery by the corporation of the city of Washington in the District of Columbia. Virginia had passed a law forbidding the sale, within its limits, of lottery tickets. Cohens was arrested for selling in Virginia lottery tickets of the Washington lottery, and in defense set up the law of Congress.24 This defense was overruled, Cohens was convicted, and his conviction affirmed in the highest court of Virginia. Thereupon, by writ of error, he appealed to the Supreme Court of the United States under the authority of the twenty-fifth section of the Judiciary Act.

Chief Justice Marshall rendered the unanimous opinion of the court. After calling attention to the clause of the federal Constitution which gives to the federal judiciary jurisdiction in all cases, in law and equity, arising under the Constitution, laws, and treaties of the United States, it is pointed out that upon those who would make exceptions to this general grant of power must fall the burden of proof. In fact, as Marshall goes on to declare, to grant the contention set up by Virginia would be to defeat the very ends for the attainment of which the Constitution was adopted. If granted, he says, "what power of the [Federal] Government could be executed by its own means, in any State disposed

2 As to the power of Congress as decided in this case, when acting as the legislature for the District of Columbia to authorize acts beyond its limits, see post, section 162.

to resist its execution by a course of legislation? The laws must be executed by individuals acting within the several States. If these individuals may be exposed to penalties, and if the courts of the Union cannot correct the judgments by which these penalties may be enforced, the course of the government may be, at any time arrested by the will of the one of its members. Each member will possess a veto on the will of the whole." Concluding his argument upon this point, Marshall says: "After bestowing on this subject the most attentive consideration, the court can perceive no reason founded on the character of the parties for introducing an exception which the Constitution has not made, and we think that 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."

The State of Virginia had, however, as we have said, still another argument which had to be overcome. Granting, counsel said, that the case 'be construed to come within the federal judicial power as originally granted by the Constitution, it has nevertheless been withdrawn from that power since the adoption of the Eleventh Amendment. To this argument, Marshall replied that the Amendment was not intended to cover cases in which a State might be defendant in error, but only those originally instituted against her by an individual. By that amendment the judicial power is not to extend to any suit "commenced or prosecuted" against a State by citizens of another State. "To commence a suit," says Marshall, " is to demand something by the institution of a process in a court of justice, and to prosecute the suit is, according to the common acceptation of language, to continue that demand. By a suit commenced by an individual against a State, we should understand the process sued out by that individual against the State, for the purpose of establishing some claim against it by the judgment of a court; and the prosecution of that suit is its continuance. Whatever may be the stages of its progress, the actor is still the same. If a suit brought

.

in one court, and carried by legal process to a supervising court,

be a continuation of the same suit, then this suit [at bar] is not commenced nor prosecuted against a State. It is clearly in its commencement the suit of a State against an individual, which suit is transferred to this court, not for the purpose of asserting any claim against the State, but for the purpose of asserting a constitutional defense against a claim made by a State."

§ 616. Corporations Chartered by, and of Which the State is a Stockholder, May Be Sued.

In Bank of the United States v. The Planters' Bank of Georgia25 it was held that a suit against a corporation chartered and partly owned by the State was not a suit against the State. "The State does not," said Marshall, "by becoming a corporator, identify itself with the corporation. The Planters' Bank of Georgia is not the State of Georgia, although the State holds an interest in it. It is, we think, a sound principle, that when a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen. Instead of communicating to the company its privileges and its prerogatives, it descends to a level with those with whom it associates itself, and takes the character which belongs to its associates, and to the business which is to be transacted."

The principle laid down in this case was again applied in the cases of Briscoe v. Bank of Kentucky,26 and Bank of Kentucky v. Wister, although the State in these cases was the exclusive owner of the stock of the bank.

§ 617. Effect of Eleventh Amendment upon Federal Constitutional Rights Guaranteed against State Violation.

In a series of great cases the Supreme Court of the United States has laid down the doctrine that the Eleventh Amendment does not grant to States nor to their agents a power, unrestrain

25 9 Wh. 904; 6 L. ed. 244. 26 11 Pet. 257; 9 L. ed. 709. 272 Pet. 318; 7 L. ed. 437.

able by judicial process, either to interfere with the exercise of federal rights or, under color of unconstitutional legislation, to violate the private rights of individuals. Where this danger has been threatened, writs of injunction have been issued, and, for the performance by state officials of purely ministerial acts prescribed by law, mandamus has been awarded. Thus in Hans v. Louisiana28 the court, after admitting the non-suability of a State either by its own citizens or citizens of other States, took the precaution to say: "To avoid misapprehension it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subject of judicial cognizance unless the State consents to be sued, or comes itself into court; yet, where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. Whilst the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under the contracts, may be judicially resisted; and a law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment."

Acting under the right thus declared of preventing a State, or rather the officials of a State, from acting under laws unconstitutional, either because impairing the obligation of contracts, or taking property without due process of law the federal courts, while declaring themselves unable to secure to private individuals an enforcement of their claims against States, have nevertheless been able to extend their protecting power to prevent the States from taking action upon their part to enforce against individuals and against its federal officials claims not supported by valid laws. The following are instances illustrating this:

§ 618. Suits against State Officers: When Considered Suits against the State.

Though, as has been seen, the suability of the United States, and, since the Eleventh Amendment, of an individual State of the 28 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.

Union, by a citizen is not and has not been questioned, the courts have often found great difficulty in determining just when a suit may be said to be against the State itself, and, therefore, beyond their jurisdiction, and when against the officials of the State personally, in which case they have jurisdiction. Because the courts have not been able to lay down any fully satisfactory rule upon this point, it will be necessary to consider seriatim the more important cases in which the question has been involved.

There will first be considered the cases in which the claim has been set up, but denied by the court, that the suit on trial is one against the State, and as such beyond the competence of the court to entertain.

§ 619. United States v. Peters.

In the case of United States v. Peters,29 decided in 1809, a judgment was given against the heirs of the state treasurer of Pennsylvania, for money improperly received and held by him as such treasurer but not actually paid into the state treasury. The State of Pennsylvania among other grounds set up that the judgment, though in form against an individual, was in fact against itself and as such prohibited by the Eleventh Amendment. As to this Chief Justice Marshall, who rendered the unanimous opinion of the court, declared: "The right of a State to assert as plaintiff, any interest it may have in a subject, which forms the matter of controversy between individuals, in one of the courts of the United States is not affected by this Amendment; nor can it be so construed as to oust the court of its jurisdiction, should such claim be suggested. The amendment simply provides that no suit shall be commenced or prosecuted against a State. The State cannot be made a defendant to a suit brought by an individual; but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one State against citizens of a different State, where a State is not necessarily a defendant. . It certainly can never be

29 5 Cr. 115; 3 L. ed. 53.