citizens and foreigners. The propriety and fitness of these judicial powers seem to result, as a necessary consequence, from the union of these states in one national government, and they may be considered as requisite to its existence. The judicial power in every government must be coextensive with the power of legislation. It follows, as a consequence, that the judicial department of the United States is, in the last resort, the final expositor of the Constitution as to all questions of a judicial nature. (a) Were there no power to interpret, pronounce, and execute the law, the government would either perish through its own imbecility, as was the case with the articles of confederation, or other powers must be assumed by the legislative body, to the destruction of liberty. That the interpretation of treaties, and the cases of foreign ministers and maritime matters, are properly confided to the federal courts, appears from the close connection those cases have with the peace of the Union, the confusion that different proceedings in the separate states would tend to produce, and the responsibility which the United States are under to foreign nations for the conduct of all its members. The other cases of enumerated jurisdiction are evidently of national concern, and they constitute one of the principal motives to union, and one of the principal cases of its necessity, which was the insurance of the domestic tranquillity. The want of a federal judiciary to embrace these important subjects was once severely felt in the German confederacy, and disorder, license, and desolation reigned in that unhappy country, until the establishment of the imperial chamber by the Emperor Maximilian, near the close of the fifteenth century; and that jurisdiction was afterwards the great source of order and tranquillity in the Germanic body. (b) (a) The Federalist, Nos. 33, 39, 80; Story's Comm. on the Const. i. pp. 360, 362, 363, notes; Marshall, C. J., in Cohens v. Virginia, 6 Wheaton, 264, 384. The whole question is fully examined, and all the contemporary discussions in relation to it placed in a striking view, in Story on the Const. i. pp. 344–382. (3) Robertson's Charles V. i. 183, 395, 397. 1 But the judicial power seems to be limited as against a co-ordinate branch of the government. For when an injunction was sought to restrain the President from carrying out the Reconstruction Acts on the ground of their alleged unconstitutionality, Chase, C. J., said, "Suppose the bill filed, and the injunction prayed for al lowed. If... the President complies with the order of the Court, and refuses to execute the acts of Congress, may not the House of Representatives impeach the President for such refusal?" Mississippi v. Johnson, 4 Wall. 475, 500; post, 323, n. 1; ante, 254, n. (b). * 297 The judicial power, as it originally stood, extended to suits prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state; but the states were not willing to submit to be arraigned as defendants before the federal courts, at the instance of private per* sons, be the cause of action what it might. The decision of the Supreme Court of the United States, in the case of Chisholm v. The State of Georgia, (a) decided in 1793, in which it was adjudged that a state was suable by citizens of another state, gave much dissatisfaction, and the legislature of Georgia carried their opposition to an open defiance of the judicial authority. The inexpediency of the power appeared so great, that Congress, in 1794, proposed to the states an amendment to that part of the Constitution, and it was subsequently amended in this particular, under the provision in the fifth article. It was declared by the amendment, (b) that the judicial power of the United States should 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. (c) The inhibition applies only to citizens or subjects, and does not extend to suits by a state, or by foreign states or powers. (d) They retain the capacity to sue a state as it was originally granted by the Constitution; and the Supreme Court has original jurisdiction in the case of suits by a foreign state against one of the members of the Union. (e)1 (a) 2 Dallas, 419. (b) Amendments, art. 11. (c) As the United States have no existence, as a political ideal being, except under the organization of the Constitution and laws of the United States, it is assumed as a principle flowing from the sovereignty of the United States, that the officers of the government are not subject to suits for acts in the regular discharge of their official duties. Opinions of the Attorneys-General, i. 457. (d) The Cherokee Nation v. Georgia, 5 Peters, 1; New Jersey v. New York, ib 284. A mandamus is a suit within the meaning of the Constitution, for it is a litigation of a right in a court of justice, seeking a decision. Weston v. City Council of Charleston, 2 Peters, 449; Holmes v. Jennison, 14 id. 564. (e) Blair, J., and Cushing, J., in Chisholm v. State of Georgia, 2 Dallas, 419. That a foreign prince or state may sue in our own as well as in the English courts of law 1 As to the word "suit," see Ex parte Milligan, 4 Wall. 2, 112 et seq.; post, 326, n. 1. A foreign sovereign may sue to prevent injury to property of himself or his subjects. On this ground Kossuth was enjoined at the suit of the Emperor of Austria from making notes purporting to be receivable as money in Hungary, and to be guaranteed by that state, although they were not imitations of any notes then current. Emperor of Austria v. Day With these general remarks on the constitutional principles of the judiciary department and the objects of its authority, we pro and equity, see King of Spain v. Oliver, 1 Peters C. C. 276; The Colombian Government v. Rothschild, 1 Sim. 104; King of Spain v. Machado, 4 Russ. 238; 1 Dow, P. C. N. s. 165, s. c. No direct suit can be maintained against the United States, without the authority of an act of Congress, nor can any direct judgment be awarded against them for costs. Marshall, C. J., in Cohens v. Virginia, 6 Wheaton, 411, 412; United States v. Clarke, 8 Peters, 444; United States v. Barney, Dist. C. Maryland, 3 Hall L. J. 128; United States v. Wells, 2 Wash. 161; Op. Att.-Gen. ii. 967, 968. But if an action be brought by the United States to recover money in & Kossuth, 3 De G., F. & J. 217. See Hullett v. King of Spain, 1 Dow & C. 169; United States v. Prioleau, 2 H. & M. 559. And a foreign republic, which has been recognized by a government, may sue in the courts of the latter in its own name, and without joining any party as plaintiff who can be compelled to give discovery. United States of America v. Wagner, L. R. 2 Ch. 582; Republic of Mexico v. De Arangois, 5 Duer, 634. But a foreign sovereign cannot sue, it seems, to restrain acts which only violate his political privileges, Kossuth's Case, supra, and he cannot be sued in England for an act done in his sovereign character in his own country. Duke of Brunswick v. King of Hanover, 2 H. L. C. 1; Gladstone v. Ottoman Bank, 1 H. & M. 505. Compare further, Smith v. Weguelin, L. R. 8 Eq. 199; Gladstone v. Musurus Bey, 1 H. & M. 495; Penn. Law J. Dec. 1847, p. 97. As to suits to which a state is a party, see p. 400 and notes. It is not uncommon in modern times for sovereign powers to allow proceedings against themselves in their own courts. But in the absence of statute, the old principle has been held applicable to the United States. Hill v. United States, 9 How. 386; United States v. McLemore, 4 How. 286; The Siren, 7 Wall. 152, 154; Case v. Terrell, 11 Wall. 199; iii. 171, n. 1. And a state may withdraw its consent after a suit has been begun against it. Beers v. Arkansas, 20 How. 527. failure of justice, and the act of Feb. 24 (10 U. S. St. at L. 612, ch. 122), established a court for the investigation of certain claims against the United States. This board, however, had no power to render final judgments, or to do more than to make a favorable or adverse report to Congress. And it was only by the act of March 3, 1863 (12 U. S. St. at L. ch. 92, p. 765), that it became an independent court. It still has the jurisdiction given by the earlier statute over all claims founded upon any law of Congress, or upon any regulation of an executive department, or upon any contract, express or implied, with the government of the United States, which may be suggested to it by a petition filed therein; and also all claims which may be referred to said court by either house of Congress; and it cannot qualify its jurisdiction by rules. Clyde v. United States, 13 Wall. 38. The act of 1863, § 2, provides that petitions, &c., for the satisfaction of such private claims against the governmen shall be transmitted to the court unless it is otherwise resolved by the house in which they are presented. Section 3 gives additional jurisdiction of all set-offs, counter-claims, &c., on the part of the government against the claimant, and the court may give judgment in favor of the government for the balance found due to it, if any. It may be mentioned that the rule is otherwise when the United States is plaintiff; for under the statutes allowing a set-off in that case, no judgment can be rendered against the government, al ceed to a particular examination of the several courts of the United States, as ordained by law. the hands of a party, he may, by way of defence, set up any legal or equitable claim he has against the United States, and need not, in such case, be turned round to an application to Congress. Act of Congress, March 3d, 1797, c. 74, sec. 3, 4. United States v. Wilkins, 6 Wheaton, 135, 143; Walton v. United States, 9 Wheaton, 651; United States v. Macdaniel, 7 Peters, 16; United States v. Ringgold, 8 Peters, 163; United States v. Clarke, ib. 436; United States v. Robeson, 9 Peters, 319; Same v. Hawkins, 10 Peters, 125; Same v. Bank of the Metropolis, 15 Peters, 377. In the case of the late Bank of the United States, who claimed damages by way of set-off on a protested bill drawn by the United States, the Attorney-General, in an elaborate though a balance be shown in the defendant's favor. United States v. Eckford, 6 Wall. 484 (citing De Groot v. United States, 5 Wall. 419, 432); Watkins v. United States, 9 Wall. 759. The jurisdiction of the court is extended to claims of owners of property abandoned or captured during the rebellion, by act of March 12, 1863 (12 U. S. St. at L. ch. 120, p. 820). It has been thought to be exclusive. Elgee v. Lovell, 1 Woolw. 102, 117. Compare Mail Co. v. Flanders, 12 Wall. 130, 135. And held not to be subject to appeal by the claimant. Pargoud's Appeal, 4 Ct. of Cl. 349. It is not to include claims growing out of destruction or appropriation of, or damage to property by the army or navy during the war. July 4, 1864 (13 U. S. St. at L. ch. 240, p. 381); Filor v. United States, 9 Wall. 45; United States v. Russell, 13 Wall. 623; Pugh v. United States, ib. 633; United States v. Kimball, ib. 636. The Supreme Court has determined that the Court of Claims has not jurisdiction of claims against the government founded in fact on the unauthorized torts of its agents, although in form on an implied contract. Gibbons v. United States, 8 Wall. 269. Nor of suits founded on merely equitable considerations. Bonner v. United States, 9 Wall. 156. Persons complaining of exactions under the revenue laws are confined to the remedies which those statutes furnish. Nichols v. United States, 7 Wall. 122, When § 14 of the act of 1863 was in force, it was construed to give the Secre tary of the Treasury power to revise all the decisions of the Court of Claims requiring payment of money. This was held to take away the judicial character of the court, and to make an appeal to the Supreme Court of the United States impossible. Post, 326, n. 1. Gordon v. United States, 1 Nott & H. xxxiii., note, 2 Wall. 561. The section was repealed after the rendering of the above decision, by the act of March 17, 1866, 14 U. S. St. at L. 9, and a claimant has now an ap peal as of right when the amount in controversy exceeds $3000. United States v. Adams, 6 Wall. 101; Ex parte Zellner. 9 Wall. 244. An appeal is given on behalf of the United States from all final judgments adverse to the United States. Act of June 25, 1868, 15 U. S. St. at L. ch. 71, p. 75, § 1. Only such aliens as are citizens or subjects of a government which accords to citi zens of the United States the right to prosecute claims against such government in its courts can sue in the Court of Claims under the abandoned and captured prop erty acts before mentioned. Act of July 27, 1868, ch. 276, § 2, 15 U. S. St. at L. 243. A British subject is not prevented from suing by this act, United States v. O'Keefe, 11 Wall. 178; nor a Prussian, Brown's Case, 5 Ct. of Cl. 571; nor a French, Rothschild's Case, 6 Ct. of Cl. 204; nor a Spanish, Molina's Case, 6 Ct. of Cl. 269; nor a Swiss, Lobsiger's Case, 5 Ct. of Cl. 687 [321] * 298 3. Jurisdiction of the Supreme Court. *The Supreme Court was instituted by the Constitution, which ordained official opinion, held, that the set-off could not be allowed in a suit by the United States against the bank, for dividends due the United States, and withheld. Op. Att.-Gen. ii. 964, 982. But in the same case of the Bank of the United States v. The United States, in 2 How. 711, the United States sued the bank for dividends withheld; and the bank, by way of set-off, claimed 15 per cent damages, under the law of Maryland (which on this point was the law at the city of Washington), on a protested bill drawn by the government of the United States on France, and taken by the bank as first indorsee, and presented at Paris for payment, and protested for non-payment, and taken up by a banking-house in Paris, supra protest, for the honor of the Bank of the United States, which was the first indorser. It was held, by a majority of the court, that the bank, on satisfying the banking-house in Paris, became the lawful holder of the bill, and as such holder entitled to the damages by way of set-off against the United States as drawer, in like manner as any individual holder of a protested bill would be. Mr. Ch. J. Taney, who was the Attorney-General that gave the opinion alluded to in the former part of this note, added a new opinion founded on the special circumstances of the case, against the allowance of the set-off, denying that the United States were bound, either in law or equity, to pay, or the bank entitled to claim, the contested damages. Independent of any thing special in the case, the general doctrine of the decision was sound and unquestionable. To entitle the party to his set-off, his claim must have been previously submitted to the accounting officers of the treasury and been disallowed, or he must reasonably account for the omission. See sec. 3 and 4 of the act aforesaid. In the case Ex parte Madrazzo, 7 Peters, 627, a subject of the King of Spain filed a libel in the admiralty against the State of Georgia, alleging that the state was in possession of moneys, being the proceeds of certain property belonging to him, and claiming a right to institute a suit in the admiralty for the same, and that the 11th amendment to the Constitution of the United States did not take away the jurisdiction of the courts of the United States in suits in admiralty against a state. But on appeal from the decree of the Circuit Court, sustaining the libel, to the Supreme Court of the United States, it was held, that the proceeding in question was a mere personal suit against a state, to recover property in its possession; and that a private person could not commence such a suit; and that it was not a case where the property was in the custody of a court of admiralty, or brought within its jurisdiction, and in possession of any private person. The jurisdiction would seem to have been impliedly admitted in the latter case. A state cannot be sued in its own courts without its consent. Michigan State Bank v. Hastings, Walker Ch. (Mich.) 9. This is an attribute of sovereignty and of universal law. But a foreign sovereign may voluntarily become a party to a suit in the tribunals of another country, and have his rights asserted and enforced. And it was declared in the case of the Exchange, 7 Cranch, 116, that all persons and property within the territorial jurisdiction of any sovereign were amenable to the local jurisdiction, with such exceptions only as common usage and public policy had allowed. The result is, (1.) That no citizen of any of the United States, or subject of a foreign state, can sue a state. (2.) That a foreign state may sue one of the United States before the Supreme Court of the United States, and there only. (8.) That the United States cannot be sued. (4.) That the United States may sue a state, and perhaps they may, as a tona fide assignee of an individual creditor of a state, and perhaps an individual state, or a foreign state, as such assignee, may do it. See Hamilton's Report on Public Credit, 1790, p. 9. This last point is without any judicial support that I am aware of; and |