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THE DOCTRINE OF NON-SUABILITY OF
THE STATE IN THE UNITED STATES



THE DOCTRINE OF NON-SUABILITY OF
THE STATE IN THE UNITED STATES



BY

KARL SINGEWALD



A DISSERTATION

Submitted to the Board of University Studies of Thie Johns

Hopkins University in conformity with the requirements

for the degree of Doctor of Philosophy

1910



BALTIMORE

1910



-,<!>'



Copyright 1910 by
THE JOHNS HOPKINS PRESS

SEP - ° \Sm



Press of

The new Era printing Company

lancaster. pa.



PREFACE.



This paper is a study of the questions of public law
involved in the doctrine of immunity of the state from suit,
and especially of the relation of this doctrine to suits against
public officers. It does not include a consideration of the
extent to which suits against themselves are allowed by the
United States and by the several States, nor of the prin-
ciples of law governing cases brought under such per-
mission. The determination of the philosophical basis of
the responsibility of the state, also, does not fall within the
scope of this paper.

The study is based mainly on the cases decided by the
supreme court of the United States, both because of the
greater importance of those cases, and because the supreme
court is the only tribunal before which has come any con-
siderable number or variety of suits of this class. If the
criticism of some of the decisions seems too free, I trust it
will be pardoned; for it is not inconsistent with the most
profound respect for the court.

For convenience, the use of the word state in the generic
sense, and the use of the word State as applied to the States
of the United States, will be distinguished by capitalizing
the latter. Wherever the term supreme court is used with-
out other designation, reference is had to the supreme
court of the United States.

I gladly embrace this opportunity of expressing my
grateful obligation to Professor Willoughby, head of the
department of political science at the Johns Hopkins Uni-
versity. It is to his broad grasp and clear exposition of
constitutional law that I owe my great interest in the
subject. K, S.

June, 1910.



TABLE OF CONTENTS.



PART I.

Suits against the State.

CHAP. I. The General Doctrine 9

Its foundation 9

In international law 12

CHAP. II. The Doctrine in the United States. Under

THE Federal Constitution 15

CHAP. III. Principles of the Constitution of the United

States Governing Suits against States 27

The eleventh amendment and suits between States 27

Consent of State and jurisdiction of federal courts 29

Restriction of consent to State courts 35

Withdrawal of consent and impairment of the obligation

of contracts 3^

CHAP. IV. Scope of the Doctrine of Non-suability — Forms

OF Action 38

Actions that are suits against the state 38

Actions that are not suits against the state 42

PART II.

Suits against Public Officers.

CHAP. I. The Principle of Liability in Tort 45

CHAP. II. Injunction against Tort 47

CHAP. III. Recovery of Property in the Possession of

Public Officers 54

CHAP. IV. Mandamus and Analogous Remedy in Equity. 67
CHAP. V. Extension of the Principle of Equitable Re-
lief against Wrongful Acts i

CHAP. VI. Ex Parte Young 9°

CHAP. VII. Federal Question — when Involved in Suits

AGAINST State Officers 105

CHAP. VIII. The Relation of the State to Suits against

its Officers "J



TABLE OF CASES.



Adams, 111. Cent. R. R. Co. v.,

3i> 115
Alabama, Postal Tel. Co. v., 17,

29, 33, 115
Alabama, So. & No. Ala. R. R.

Co. v., 31, 36
Alexander, Buchanan v., 38
Alsbrook, R. R. Co. v., no
Ames, Smyth v., 30, 91, 94 seq.,

115
Antoni v. Greenhow, 36, 76, 78,

79
Arbuckle v. Blackburn, 108
Arkansas, Beers v., 31, 36, 44
Arkansas, Curran v., 31
Arkansas, Pres. & Dir. etc. v., 43
Atl. & N. C. R. R. Co., Christian

v., 40, 59
Atl. Coast Line R. R. Co., Gunter

v., 34, 41, 49, 89, 94, loi, 102
Atl. Coast Line R. R. Co., Pren-

tis v., 103
Avery, Humbird v., 85
Avers, ex parte, 37, 77, 78, 81, 83,

87, 96 seq., 116
Bank of U. S. v. Planters' Bank

of Ga., 42
Bank, Osborn v., 21, 47 seq., 54>

57, 60. 81, 83, III, 117
Barnard, Clark v., 32
Barney v. New York, 95, 106 seq.
Barrow, Shield v., 40
Beers v. Arkansas, 31, 36, 44
Belknap v. Schild, 50 seq., iir,

117
Blackburn, Arbuckle v., 108
Board of Liq. v. McComb, 67, 69

seq., 88
Bouldin v. State, 44
Briggs v. Light-boats, 10, 38
Brown v. Hitchcock, 85
Brown v. Huger, 62
Bruce, Intern'l Postal Supply Co.

v.. 52
Buchanan v. Alexander, 38
Budd v. Houston, 86



Burke, State ex rel. Hart v., 74,

75
Burke, State ex rel. Newman v.,

Carr v. U. S., 16, 44, 62, 64, 112
Carpenter, State B'd. of Land

Com'rs. v., 84
Case V. Terrell, 40, 44
Chandler v. Dix, 36, 65, 89, 114
Cherokee Nation v. Ga., 17
Chisholm v. Ga., 15 seq.
Christian v. Atl. & N. C. R. R.

Co., 40, 59
Civil Rights Cases, 108
Clark v. Barnard, 32
Clemson Agr. College, Hopkins

v., 53
Cohens v. Va., 16, 21, 42
Colorado, Kansas v., 11
Cotting v. Godard, 94, 115
Grain, General Oil Co. v., 32, 108

seq.
Crittenden, Rolston v., 68, 76
Cunningham v. M. & B. R. R.
Co., 40, 51, 57. 65, 68, 72, 79, 81,
112, 113
Curran v. Arkansas, 31
Dashiell v. Grosvenor, 52
Davis V. Gray, 77, 81, 82 seq., 112
Davis & F. Mfg. Co. v. Los

Angeles, 94, 95, 100
Debs, In re, 41
De Groot v. U. S., 44
Dennison, Ky. v., 20
Dietzsch v. Huidekoper, 93
Dix, Chandler v., 36. 65, 89, 114
Dockery, Mo. v., 108
Dodge v. Woolsey, 49
Eckford's Ex'trs, U. S. v., 43
Ex parte Ayers, 37, 77, 78, 81, 83,

87, 96 seq., 116
Ex parte Virginia, 107
Ex parte Young, 24, 31, 52, 90

seq., 105, 116, 117
Fargo V. Hart, 87, 108



VI



Table of Cases.



Farmers' Loan & Trust Co.,

Reagan v., 30, 41, 94 seq., 108
Ferguson v. Ross, 42
Fitts V. McGhee, 95, 96 seq., 103
Florida v. Ga., 20, 25, in
General Oil Co. v. Grain, 32, 108

seq.
Georgia, Cherokee Nation v., 17
Georgia, Chisholm v., 15 seq.
Georgia, Fla. v., 20, 25
Georgia v. Stanton, 82
Georgia v. Tenn. Copper Co., 24
Gibson, Weyler v., 65
Godard, Cotting v., 94, 115
Governor of Ga. v. Madrazo, 23,

54, 112
Gratiot v. U. S., 43
Gray, Davis v., yy, 8r, 82 seq.,

112
Grayson v. Va., 20
Greenhowr, Antoni v., 36, 76, y^,

79
Greenhow, Poindexter v., 22, 36,

49, 54. 112
Grisar v. McDowell, 62
Grosvenor, Dashiell v., 52
Gunter v. Atl. Coast Line R. R.

Co., 34, 41, 49, 89, 94, loi, 102
Guthrie, U. S. v., y^,
Hagood V. Southern, 51, 78, 80
Hall V. Wise, 31
Hammond, Mich. State Bank v.,

58,65
Hans V. La., 18, 22
Hart, Fargo v., 87, 108
Hill V. U. S., 44
Hitchcock, Brown v., 85
Hitchcock, Minn, v., 29, 41, 85,

Hitchcock, Neganab v., 87

Hitchcock, Oregon v., 85

Hollingsworth v. Va., 19

Hopkins v. Clemson Agric. Col-
lege, 53

Houston, Budd v., 86

Huger, Brown v., 62

Huidekoper, Dietzsch v., 93

Humbird v. Avery, 85

Humphrey v. Pegues, 34, 41

Hunter v. Wood, loi

Illinois Central R. R. Co. v.
Adams, 31, 115

Illinois Central R. R. Co., Miss.
R. R. Com'n v., 93



Illinois, Missouri v., 11

In re Debs, 41

In re Tyler, 50, 87

Intercolonial Railway, Mason v.,

International Postal Supply Co.

V. Bruce, 52
Jackson, Wilcox v., 61
Johnson, Miss, v., 82
Jumel, La. v., Z7, 5i, 57, 68, 69

seq., 87, 112, 117
Kansas v. Colorado, 11
Kansas v. U. S., 26
Kawanakoa v. Polybank, 10, 21
Kentucky v. Dennison, 20
Klein, U. S. v., 44
Jackson, Wilcox v., 61
Lee, U. S. v., 10, 22, 44, 51, 56,

59 seq., Ill, 112, 114, 117
Lightboats, Briggs v., 10, 38
Lord, Salem Flouring Mills Co.

v., S3
Los Angeles, D. & F. Mfg. Co.

v., 94, 95, 100
Louisiana, Hans v., 18, 22
Louisiana v. Jumel, 2>7, 5i, 57, 68;

69 seq., 87, 112, 117
Louisiana, N. H. v., 23, 27, 113
Louisiana v. Steele, 80
Louisiana v. Texas, 108
Lowry v. Thompson, 59, 115
McClung, Meigs v., 61
McComb, Board of Liq. v., 67,

69 seq., 88
McConnaughy, Pennoyer v., yy,

79, 84
McDaniel, U. S. v., 43
McDowell, Grisar v., 62
McGahey v. Va., 50, 96
McGhee, Fitts v., 95, 96 seq., 103
McLemore, U. S. v., 43
McNeill v. So. Pac. Ry. Co., 93
Macon & B. R. R. Co., Cunning-
ham v., 40, 51, 57, 65, 68, 72,

79, 81, 112, 113
Madrazo, Gov. of Ga. v., 23, 54,

112
Marye v. Parsons, 96
Maryland, Van Stophorst v., 16
Mason v. Intercolonial Ry., 13
Massachusetts, R. I. v., 20
Meigs V. McClung, 61



Table of Cases.



Vll



Michigan Land & Lumber Co.
y. Rust, 85

Michigan State Bank v. Ham-
mond, 58, 65

Michigan, U. S. v., 25

Minnesota v. Hitchcock, 29, 41,
8S,. IIS

Mississippi v. Johnson, 82

Mississippi R. R. Com'n. v. 111.
Cent. R. R. Co., 93

Missouri v. Dockery, 108

Missouri v. Illinois, 11

Missouri, K. & T. R. R. Co. v.
Mo. R. R. & W. Com'n., 41

Murray v. Wilson Distilling Co.,

59
Nathan v. Va., 38
Neganab v. Hitchcock, 87
New Hampshire v. La., 23, 27,

113

New Jersey v. N. Y., 20

New York, Barney v., 95, 106

seq.
New York, N. J. v., 20
New York, Oswald, Adm'r. v., 16
Noble V. Union R. Logging R.

R. Co., 86
North Carolina, S. D. v., 24, 25,

26, 28
North Carolina v. Temple, 22
North Carolina, U. S. v., 25
Oaks, Phelps v., 33, 35
Oregon v. Hitckcock, 85
Osborn v. Bank, 21, 47 seq.,

54, 57, 60, 81, 83, III, 117
Oswald, Adm'r. v. N. Y., 16
Parsons, Marye v., 96
Pegues, Humphrey v., 34, 41
Pelican Ins. Co., Wise, v., 17, 20
Pennoyer v. McConnaughy, 77,

79. 84 . . .J

Pennsylvania v. Wheeling Bridge

Co., 20
Peters, U. S. v., 55, 60
Phelps V. Oaks, 33, 35
Pitcock V. State, 68, 88
Planters' B'k of Ga., B'k of U.

S. v., 42
Poindexter v. Greenhow, 22, 36,

49, 54, 112
Polybank, Kawanakoa v., ib, 21
Postal Tel. Co. v. Ala., 17, 29,

33. 115



Prentis v. Atl. Coast Line R. R.

Co., 103
President & Dir'trs, etc. v. Ark.,

43
Preston v. Walsh, 84
Prout V. Starr, 89, 90, 92, 115
Railroad Com'n. v. T. & A. R.

R. Co., loi
Railroad Co. v. Alsbrook, no
Reagan v. Farmers' L. & T. Co.,

30, 41, 94 seq., 108
Reeside v. Walker, 43
Reeves, Smith v., 23, 35, 40, 96
Rhode Island v. Mass., 20
Ringgold, U. S. v., 43
Rives, Va. v., 107
Rolston V. Crittenden, 68, 76
Ross, Ferguson v., 42
Rust, Mich. Land & Lumber Co.

v., 85
Salem Flouring Mills Co. v.

Lord, S3
Schild, Belknap v., 50 seq., in,

117
Schwalby, Stanley v., 16, 44, 65,

III
Shield V. Barrow, 40
Smith V. Reeves, 23, 35, 40, 96
Smith, Warner Valley Stock Co.

v., 89
Smyth V. Ames, 30, 91, 94 seq.,

115
South and No. Ala. R. R. Co.

V. Ala., 31, 36
South Carolina v. U. S., 103
South Carolina v. Wesley, in
South Dakota v. N. C, 24, 25,

26, 28
Southern, Hagood v., 51. 78, 80
Southern Pac. Ry. Co., McNeill

v., 93
Southern Ry. Co., State v., lOi
Stanley v. Schwalby, 16, 44, 65,

III
Stanton, Ga. v., 82
Starr, Prout v., 89, 90, 92, nS
State Board of Land Com'rs. v.

Carpenter, 84
State, Bouldin v., 44
State ex rel Hart v. Burke, 74,

75



Vlll



Table of Cases.



State ex rel Newman v. Burke,

75
State, Pitcock v., 68, 88
State V. Southern Ry. Co., loi
Steamship Scotia, Young v., 13,

39
Steele, La. v., 80
Tampa & A. R. R. Co., R. R.

Com'n. v., loi
Temple, N. C. v., 22
Tennessee Copper Co., Ga. v.,

24
Tennessee, M. & C. R. R. Co.

v., 31, 36
Terrell, Case v., 40, 44
Texas, La. v., 108
Texas, U. S. v., 23, 25
The Charkieh, 12
The Davis, 12, 38, 42, 62
The Exchange, 12, 60
The Fidelitj"-, 13
The Jassy, 13
The Parlement Beige, 11, 13
The Siren, 11, 43
The St. Jago de Cuba, 43
Thompson, Lowry v., 59, 115
Tindal v. Wesley, 65
Trapnall, Woodruff v., 69
Tyler, In re, 50, 87
Union R. Logging R. R. Co.,

Noble v., 86
United States, Carr v., 16, 44,

62, 64, 112
United States, De Groot v., 44
United States v. Eckford's

Ext'rs, 43
United States, Gratiot v., 43
United States v. Guthrie, 73
United States, Hill v., 44
United States, Kansas v., 26
United States v. Klein, 44



United States v. Lee, 10, 22, 44,
51, 56, 59 seq., iii, 112, 114,
117
United States v. McDaniel. 43
United States v. McLemore, 43
United States v. Mich., 25
United States v. N. C, 25
United States v. Peters, 55, 60
United States v. Ringgold, 43
United States, S. C. v., 103
U^nited States v. Texas, 23, 25
United States v. Wilder, 13, 38,

Van Stophorst v. ]Md., 16
Virginia, Cohens v., 16, 21, 42
Virginia, Ex parte, 107
Virginia, Grayson v., 20
Virginia, Hollingsworth v., 19
Virginia, IMcGahey v., 50, 96
Virginia, Nathan v., 38
Virginia v. Rives, 107
Walker, Reeside v., 43
Walsh, Preston v., 84
Warner Valley Stock Co. v.

Smith, 89
Wesley, S. C. v., iii
Wesley, Tindal v., 65
Weyler v. Gibson, 65
Wheeling Bridge Co., Pa. v., 20
Wilcox v. Jackson, 61
Wilder, U. S. v., 13, 38, 42
Wilson Distilling Co., Murray v.,

5.9
Wisconsin, Hall v., 31
Wisconsin v. Pelican Ins. Co.,

17, 20
Wood, Hunter v., loi
Woodruff V. Trapnall, 69
Woolsey. Dodge v., 49
Young, Ex parte, 24, 31, 52, 90

seq., IDS, 116, 117
Young V. S. S. Scotia, 13, 39



PART I.
SUITS AGAINST THE STATE.



CHAPTER I.

The General Doctrine.

Its foundation.

The doctrine that the sovereign power may not be sued
without its consent came to the United States as a part of
the English law. In Continental jurisprudence it has a more
limited scope than in English law. Ultimately, the doctrine
goes back to the Roman law.

In England, at the time of the institution of royal courts,
it would have been a strange proceeding for judges, acting
for the king as his personal agents, to have attempted to
hale him into court against his will. The principle of
Roman law that "the will of the prince is law," though
never adopted in England, influenced the judges to some
extent, and ser^-ed to give color to the immunity of the
king. Later, the position of the courts became established,
absolutism was definitely negatived by the rise of constitu-
tional monarchy, and the king in his public capacity be-
came differentiated from the king in his private capacity.
The reason stated above then no longer applied to suits
against him in his private character; and his immunit>' in
this respect is simply a historical persistence.^ The same
reason continued, on the other hand, for the immunity of
the crown as the personification of the English state. It

^For a tendency, however, to accord a similar inununitj- to the
president of the United States, as a matter of pubbc pohcy m the
case of the chief executive, see Goodnow: Advitn. Law of the U. ^.,
pp. 9h 435-

9



lO The Non-Suability of the State.

is the ground upon which Justice Miller rested the doctrine
of the non-suability of the state : " It seems most probable
that it has been adopted in our courts as a part of the
general doctrine of publicists that the supreme power in
every state, wherever it may reside, shall not be compelled,
by process of courts of its own creation, to defend itself in
those courts."^ And it is this ground, namely, that a court,
the agent of the state, cannot subject its creator to its
jurisdiction, that is here adopted as the most obvious and
sensible explanation.

Acceptance of this foundation of the doctrine does not
prevent the recognition of other reasons in justification.
The courts commonly dwell upon the public policy and
practical utility of the exemption. Justice Gray expressed
this view admirably : " The broader reason is that it would
be inconsistent with the very idea of supreme executive
power, and would endanger the performance of the public
duties of the sovereign, to subject him to repeated suits as
a matter of right, at the will of any citizen, and to submit to
the judicial tribunals the control and disposition of his
public property,, his instruments and means of carrying on
his government in war and in peace, and the money in his
treasury."^

Another view of the exemption, resting upon the eminent
authority of Justice Holmes, is this : " A sovereign is exempt
from suit, not because of any formal conception or obsolete
theory, but on the logical and practical ground that there
can be no legal right as against the authority that makes
the law on which the right depends."^ This afforded a
basis for the extension of the exemption to the territory
of Hawaii: "As the ground is thus logical and practical,
the doctrine is not confined to powers that are sovereign in
the full sense of juridical theory, but naturally is extended
to those that, in actual administration, originate and change
at their will the law of contract and property, from which

"■ U. S. V. Lee, io6 U. S. 196. ~

Briggs V. Light-boats, 11 Allen 157, 162.
'Kawanakoa v. Polybank, 205 U. S. 349.



The General Doctrine. 1 1

persons within the jurisdiction derive their rights. A suit
presupposes that the defendants are subject to the law
invoked. Of course, it cannot be maintained unless they
are so. But that is not the case with a territory of the
United States, because the territory itself is the fountain
from which rights ordinarily flow."

Now, this view of Justice Holmes was not necessary to
the decision. The reason of public policy might well have
been held to extend to a government exercising such broad
powers as the territory of Hawaii. Or, the view might
have been taken — which I think is the proper view of all
local governments — that a territory stands, for its. purposes,
simply in the stead of the superior government, and is
therefore entitled to the same immunity from suit, an
immunity which the territory, not being made a mere muni-
cipal corporation, has not lost. Nor do I think that the
view of Justice Holmes is sound. His statement that "a
suit presupposes that the defendants are subject to the law
invoked " is contrary to the position towards which he
inclined in Missouri v. Illinois,^ and which Justice Brewer
adopted in Kansas v. Colorado,^ that, in the main, there is
no law governing the States in relation to each other, and
that the supreme court must build up what Justice Brewer
called an " interstate common law." Law is necessary for
jurisdiction; but, having jurisdiction, it is the function of a
court to administer justice, according to law if any law is
applicable, but to administer justice at all events. If no
law is applicable, the court should, in the language of
Justice Holmes, " be governed by rules explicitly or implicitly
recognized" in the relations of the parties. The state, in its
relations to individuals, may be considered as acting with
reference to the ordinary principles of law. Certain it is
that the courts are constantly applying to cases between the
state and individuals, with certain modifications, the ordi-
nary principles of law. And this is true, not only in the
matter of contracts, but even in such cases as " The Siren "'

^ 200 U. S. 496.

» 206 U. S. 46.

7 Wall. 152.



12 The Non-Suability of the State.

and " The Davis,"^ in which maritime Hens were held to
attach to property of the United States just as to property
of individuals.

In international law.

The discussion thus far has related to the immunity of
the state from suit in its own courts. The immunity in the
courts of another state must, of course, rest upon a different
basis. It is founded upon the international comity accord-
ing to which, in the language of Chief Justice Marshall, " all
sovereigns have consented to a relaxation, in practice, in
cases under certain peculiar circumstances, of that absolute
and complete jurisdiction within their respective territories
which sovereignty confers,"^ in favor of other sovereigns.

The extent of the exemption depends upon the point of
view. Sir Robert Phillimore, in the case of " The Char-
kieh,"^ stated the principle to be that the sovereign " is
personally exempt from all process in a civil cause, and
from any action which renders such service necessary."
An admiralty proceeding in rem does not require such ser-
vice. The exemption of property of a foreign sovereign
from such an action he rested, therefore, not upon tne
immunity from suit, but separately upon the same "object
of international law" as sustains the personal immunity
from suit — " to substitute negotiations between govern-
ments . . . for the ordinary use of courts of justice in cases
where such use would lessen the dignity or embarrass the
functions of the representatives of a foreign state." He
limited the exemption, accordingly, to cases where the res
" can in any fair sense be said to be connected with the
jus coronse of the sovereign"; though he doubted but what,
even in the case of a pubHc war vessel, a proceeding in rem
might be maintained where a maritime lien is given by the
jus gentium. A similar view — that certain classes of prop-
erty devoted to religious or public purposes are exempt
from liens, but that where such a lien exists it may be en-

1 10 Wall. IS.

2 " Ti,„ rr,.^u



'10 Wall. IS.

' "The Exchange," 7 Cranch ii6.
42 L. J. Adm. 17.



The General Doctrine. 13

forced in rem— is indicated in the opinion of Justice Story
in U. S. V. Wilder.! c^ief Justice Waite, also, in "The
Fidelity,"^ took the view that the exemption of public
vessels from admiralty suits in rem arises not out of a want
of power to sue the public owner, but out of a want of
liability on the part of the vessel. All of these expressions,
it may be said, are purely obiter.

The position of Sir Robert Philhmore was repudiated by
the court of appeals in "The Parlement Belge,"^ revers-
ing his decision refusing exemption to a vessel, the public
property of Belgium, used for the mails, and incidentally
engaged in ordinary carrying trade. The court criticized
his " intimation of an opinion, not yet conclusively formed,
that proceedings in rem are a legal procedure solely against
property, and not directly or indirectly against the owner
of the property"; and regarded a libel in rem as an in-
direct way of impleading the owner, the result of admiralty
necessity. "To implead an independent sovereign in such
a way is to call upon him to sacrifice either his prop-
erty or his independence. To place him in that position
is a breach of the principle upon which his immunity from
jurisdiction rests." The same view of a libel in rem was
taken by the judicial committee of the privy council in
Young V. S. S. Scotia,'' in which it was held that a lien for
salvage could not be enforced against a ferry-boat, the prop-
erty of the crown, destined for service in the operation of
a government railway in Canada. " Where you are dealing
with an action in rem for salvage, the particular form of
procedure which is adopted in the seizure of the vessel is
only one mode of impleading the owner." In " The Jassy,"'^
a vessel owned under similar conditions by the Roumanian
government was held exempt. In Mason v. Intercolonial
Railway of Canada,^ the supreme court of Massachusetts

^ 3 Sumner 308.

= 16 Blatchf. 569.

*5 Prob. Div. 197.

♦89L. T. 374.

*75 L. J. (N.S.) P.D & Adm. Div. 93-

' 197 Mass. 349.



14 The Non-Suability of the State.

dismissed for want of jurisdiction a suit by trustee process
for a tort against the Intercolonial Railway, unincorporated,
the property of the crown.

The better view, then, of the principle governing the
immunity of a state from suit in the courts of another state,
is that no state will subject another state to its territorial
jurisdiction; so that the immunity extends, not only to
actions requiring personal process, but also to actions in rem
against the property of the state.



CHAPTER 11.

The Doctrine in the United States. Under the Fed-
eral Constitution.

In Chisholm v. Georgia/ some doubt was expressed as
to the applicability of the doctrine of non-suability of the
state to a republic. Justice Wilson limited the doctrine to
autocratic sovereigns. In the United States, according to
his view, the people are sovereign; they have not delegated
all their powers to the State governments; hence these
governments — or, regarded as artificial persons, the States
— are not sovereign in this sense. This reasoning applies as
much to the United States as to a State; though Justice
Wilson did not expressly say that the United States is liable
to suit. Doubtless, he would have found some ground of
distinction. Chief Justice Jay adopted a somewhat different
line of reasoning. Immunity from suit, he said, naturally
attached to a feudal sovereign as the sole fountain of
justice; but where the citizens are equal and are joint
tenants of the sovereignty, there is no reason why one


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