tion was often practically asserted, as in the case of the dispute between Massachusetts and New Hampshire, decided by the Privy Council, in 1679; and in the case of the dispute between New Hampshire and New York, in 1764. Lord Hardwicke recognised this appellate jurisdiction in the most deliberate manner, in the great case of William Penn v. Lord Baltimore. The same necessity, which gave rise to it in our colonial state, must continue to operate through all future time. Some tribunal, exercising such authority, is essential to prevent an appeal to the sword, and a dissolution of the government. That it ought to be established under the National, rather than under the State, Government; or, to speak more properly, that it can be safely established under the former only, would seem to be a position self-evident, and requiring no reasoning to support it. It may justly be presumed, that under the National Government, in all controversies of this sort, the decision will be impartially made, according to the principles of justice; and all the usual and most effectual precautions are taken to secure this impartiality, by confiding it to the highest judicial tribunal.

§ 336. Next: "Controversies between a State and "the citizens of another State." There are other sources, besides interfering claims of boundary, from which bickerings and animosities may spring up among the members of the Union. The past experience of the Country has furnished some melancholy instances of this truth. Under the Confederation, laws, of a character utterly indefensible in point of justice and principle, were passed in some of the States, affecting the rights of citizens of other States. And though the Constitution establishes particular guards against the repetition of those instances, which have hitherto made their appearance; yet it is warrantable to apprehend, that the spirit, which produced them, will assume new shapes, that could not be foreseen, nor specifically provided against. Whatever practices may have a tendency to distract the harmony of the States, are proper objects of national superintendence and control. It may be esteemed the basis of the Union, that 'the citizens of each State shall be entitled to all the privileges

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and immunities of citizens of the several States.' And if it be a just principle, that every government ought to possess the means of executing its own provisions by its own authority, it will follow, that, in order to the inviolable maintenance of that equality of privileges and immunities, to which the citizens of the Union will be entitled, the National Judiciary ought to preside in all cases, in which one State, or its citizens, are opposed to another State, or its citizens. To secure the full effect of so fundamental a provision against all evasion and subterfuge, it is necessary, that its interpretation should be committed to that tribunal, which, having no local attachments, will be likely to be impartial between the different States and their citizens, and which, owing its official existence to the Union, will never be likely to feel any bias inauspicious to the principles, on which it is founded. It may be added, that the reasonableness of the agency of the National courts in cases, in which the State tribunals cannot be supposed to be impartial, speaks for it. No man ought certainly to be a judge in his own cause, or in any cause, in respect to which he has the least interest or bias. This principle had no inconsiderable weight in designating the national courts, as the proper tribunals for the determination of controversies between different States and their citizens.

§ 337. And here a most important question of a constitutional nature was formerly litigated; and that is, whether the jurisdiction, given by the Constitution, in cases, in which a State is a party, extended to suits brought against a State, as well as by it, or was exclusively confined to the latter. It is obvious, that, if a suit could be brought, by any citizen of one State against another State, upon any contract, or matter of property, the State would be constantly subjected to judicial action, to enforce private rights against it in its sovereign capacity. Accordingly, at a very early period, numerous suits were brought against particular States by their creditors, to enforce the payment of debts, or other claims. The question was made, and most elaborately considered, in the celebrated case of Chisholm v. Georgia; and the majority of the Supreme Court held, that the judicial power, under the Constitution, applied equally to suits brought by, and suits brought against a State. All the learned judges, on that occasion, delivered opinions, containing the grounds of their respective judgements. It is not my intention to go over these grounds, although they are stated with great ability and legal learning, and exhibit a very thorough mastery of the whole subject. The decision created general alarm among the States; and an amendment was proposed, and ratified by the States, by which the power was entirely taken away, so far as it regards suits brought against a State. It is in the following 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." This amendment was construed: to include suits then pending, as well as suits to be commenced thereafter; and, accordingly, all the suits then pending were dismissed, without any further adjudication.

§ 338. Since this amendment has been made, a question of equal importance has arisen; and that is, whether the amendment applies to original suits only, brought against a State, leaving the appellate jurisdiction of the Supreme Court in its full vigor over all constitutional questions, arising in the progress of any suit brought by a State, in any State court, against any private citizen or alien. But this question will more properly come under review, when we are considering the nature and extent of the appellate jurisdiction of the Supreme Court. At present, it is only necessary to state, that it has been solemnly adjudged, that the amendment applies only to original suits against a State; and does not touch the appellate jurisdiction of the Supreme Court to re-examine, on an appeal or writ of error, a judgement or decree rendered in any State court, in a suit brought originally by a State against any private person.

§ 339. Another inquiry, suggested by the original clause, as well as by the amendment, is, when a State is properly to be deemed a party to a suit, so as to avail

itself of, or to exempt itself from, the operation of the jurisdiction conferred by the Constitution. To such an inquiry, the proper answer is, that a State, in the sense of the Constitution, is a party only, when it is on the record as such; and it sues, or is sued in its political capacity. It is not sufficient, that it may have an interest in a suit between other persons, or that its rights, powers, privileges, or duties, may come therein incidentally in question. It must be in terms a plaintiff or defendant, so that the judgement, or decree, may be binding upon it, as it is in common suits, binding upon parties and privies. The point arose in an early stage of the government, in a suit between private persons, where one party asserted the land in controversy to be in Connecticut, and the other in New York; and the court held, that neither State could be considered as a party. It has been again discussed in some late cases; and the doctrine now firmly established is, that a State is not a party in the sense of the Constitution, unless it appears on the record, as such, either as plaintiff or defendant. It is not sufficient, that it may have an interest in the cause, or that the parties before the Court are sued for acts done, as agents of the State. In short, the very immunity of a State from being made a party, constitutes, or may constitute, a solid ground, why the suit should be maintained against other parties, who act as its agents, or claim under its title; although otherwise, as the principal, it might be fit, that the State should be made a party upon the common principles of a court of equity.

§ 340. The same principle applies to cases, where a State has an interest in a corporation; as, when it is a stockholder in an incorporated bank, the corporation is still suable, although the State, as such, is exempted from any action. The State does not, by becoming a corporator, identify itself with the corporation. The bank, in such a case, is not the State, although the State holds an interest in it. Nor will it make any difference in the case, that the State has the sole interest in the corporation, if in fact it creates other persons corporators. An analogous case will be found in the authority, given by an act of Congress to the postmaster-general, to bring suits in his official capacity. In such suits, the United States are not understood to be a party, although the suits solely regard their interests. The postmaster-general does not, in such cases, sue under the clause giving jurisdiction, "in controversies, to which the United States shall be a party;" but under the clause extending the jurisdiction to cases arising under the laws of the United States.

§ 341. It may, then, be laid down, as a rule, which admits of no exception, that, in all cases under the Constitution of the United States, where jurisdiction depends upon the party, it is the party named on the record. Consequently the amendment, above referred to, which restrains the jurisdiction granted by the Constitution over suits against States, is of necessity limited to those suits, in which a State is a party on the record. The amendment has its full effect, if the Constitution is construed, as it would have been construed, had the jurisdiction never been extended to suits brought against a State by the citizens of another State, or by aliens.

§ 342. Next: "Controversies between citizens of different States." Although the necessity of this power may not stand upon grounds quite as strong, as some of the preceding, there are high motives of state policy and public justice, by which it can be clearly vindicated. There are many cases, in which such a power may be indispensable, or in the highest degree expedient, to carry into effect some of the privileges and immunities conferred, and some of the prohibitions upon States expressly declared, in the Constitution. For example: It is declared, that "the citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Suppose an attempt is made to evade, or withhold these privileges and immunities, would it not be right to allow the party aggrieved an opportunity of claiming them, in a contest with a citizen of the State, before a tribunal, at once national and impartial? Suppose a State should pass a tender law, or law impairing the obligation of private contracts, or should, in the course of its legislation, grant unconstitutional preferences to its own