CHAPTER XXII IMMUNITY OF STATES AND NATIONS FROM SUIT Suits Against In the exercise of judicial power and judicial discretion a judgment, it may be supposed, has been rendered in a case between actual litigants involving a principle of law or equity. As there existed between the parties a difference of opinion a contest it is the duty of the court, in the exercise of judicial power and judicial discretion, to decide that controversy, settling finally and without appeal the rights of the litigants in the matter of the dispute, whether it be by a court of first instance, from which no appeal is taken or allowed, or whether it be the court of last resort upon appeal. The result in either case is an adjudication or culmination of jurisdiction. In the exercise of the judicial power a judgment of the court is not only a final determination but one which, when determined, can be or is to be enforced by appropriate process of that court. For, according to the conception of judicial power in the United States, a judgment of a court, to be final, is one which can be executed under process from the court. This statement, however, is to be understood in the sense that the decision is final as to the rights of the parties in a judicial matter and is to be executed against individual litigants; and in this respect American practice may be said to accord with the practice of other nations. There is, however, a matter in which the practice of the United States differs from that of other countries, in that a State may, under certain circumstances, be sued as of right in the Supreme Court of the United States in controversies involving law or equity, and the rights of the litigating parties fixed by a judgment of the court. As this is an extension of judicial power beyond precedent at the time of the adoption of the Constitution of the United States, we are prepared to expect that, in the exercise of this new right, there may be limitations or qualifications of it unknown in suits between individuals. For in this instance we are dealing with peoples in their political capacity. It would not necessarily follow that the process obtaining in the one would obtain in the other case or that the procedure applicable to the individual would be applicable to the aggregation which we call a state and which, although it be a person, is an artificial person. A careful examination of the records of the Constitutional Convention of 1787 and of the proceedings of the conventions of the different States ratifying the Constitution, fails to disclose any intent on the part of the framers of the Constitution, or of the States ratifying it, that a judgment against a State was to be executed by the force of the United States. Yet it was doubtless the feeling of the framers and of those advising the ratification of the Constitution that, in extending the judicial power to controversies against States, they were not doing a useless thing, and that the exercise of judicial power in controversies against States would be obeyed, whatever the sanction. Mr. Chief Justice Taney, to cite only one illustrious example, recognized the distinction between a judgment against an individual and a judgment against a State in its political capacity. It is to be presumed that he had this distinction in mind when he drafted the opinion for the court in the case of Gordon v. United States, because four years before, in 1860, he had solemnly declared, on behalf of the court, in delivering its unanimous opinion in the case of Kentucky v. Dennison (24 Howard, 66, 109–10), that, “If the Governor of Ohio refuses to discharge" a duty imposed upon him by the Constitution and regulated in its exercise by an act of Congress, "there is no power delegated to the General Government, through the Judicial Department, or any other department, to use any coercive means to compel him." In view of the importance of this matter, the exact language of Chief Justice Taney in the case of Gordon v. United States (117 U. S., 697, 701-2) is quoted: It was to prevent an appeal to the sword and a dissolution of the compact that this Court, by the organic law, was made equal in origin and equal in title to the legislative and executive branches of the government: its powers defined, and limited, and made strictly judicial, and placed therefore beyond the reach of the powers delegated to the Legislative and Executive Departments. And it is upon the principle of the perfect independence of this Court, that in cases where the Constitution gives it original jurisdiction, the action of Congress has not been deemed necessary to regulate its exercise, or to prescribe the process to be used to bring the parties before the court, or to carry its judgment into execution. The jurisdiction and judicial power being vested in the court, it proceeded to prescribe its process and regulate its proceedings according to its own judgment, and Congress has never attempted to control or interfere with the action of the court in this respect. Coercion of States Power States In so far as States are concerned, the Constitution provides that the Judicial judicial power of the United States shall extend (1) to controversies to which over the United States shall be a party; (2) to controversies between two or more States (3) between a State and citizens of another State; (4) between citizens of different States (5) between citizens of the same State claiming lands under grants of different States; (6) and between a State, or the citizens thereof, and foreign States, citizens or subjects. It further provides that “in all cases. . . . in which a State shall be a party, the Supreme Court shall have original jurisdiction." Consent to be Sued The consent to be sued is a general consent on behalf of the States which does not have to be renewed on any particular occasion; and, given in the Constitution, it can not be withdrawn by any of the United States. The consent to be sued in a court other than the Supreme Court is a special consent which may be given by statute in general or for a particular purpose; and in giving it the State may express the conditions upon which it is given and may revoke it according to its pleasure at any time after the beginning of the suit and before final judgment. In this latter case, however, we are not dealing with the consent given by the Constitution but with the consent of a State, in its original capacity, unaffected by the provisions of the Constitution. In order to have a clear understanding of this subject, it may be well to consider in this place whether a State in international law, which is generally called a nation, may be sued without its consent, and whether the States which, by their delegates, drafted, and, by their conventions, ratified the Constitution were to be considered as nations in the sense of international law, or as possessing, in the matter of suits, the same rights and privileges. Because, if the States under the Confederation stood on an equality with the nations at large; and if they renounced an immunity by the Constitution which they possessed as States before its ratification; it follows that the right of suit is in derogation of their sovereignty, and that it is therefore to be strictly construed, as in every grant against a sovereign, and is to be exercised according to and within the limits of the grant. There is no need to quote authority for the statement that any and every nation under international law is exempt from suit without its express consent, for consent is not and can not in such cases be implied. The reason why a nation should be exempt from suit has been variously and differently stated, but the fact of immunity is not open to argument. Mr. Justice Gray, whose learning often appalled while it convinced, said in the case of Briggs v. LightBoats (11 Allen, Mass., 157), decided in 1865, on the question of the immunity of the State from suit, that "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 trial and disposition of his public property, his instruments and means of carrying on his government, in war and in peace, and the moneys in his treasury." And in a more recent case, Mr. Justice Gray's successor on the Supreme Court, Mr. Justice Holmes, said, in delivering its opinion in the case of Kwananakoa v. Polyblank (205 U. S., 349, 353), decided in 1907: Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. (Leviathan, c. 26, 2.) 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. "Car on peut bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy." Bodin, Republique, 1, c. 8. Ed. 1629, p. 132. Sir John Eliot, De Jure Maiestatis, c. 3. Nemo suo statuto ligatur necessitative. Baldus., De Leg. et Const., Digma Vox. (2d ed., 1496, fol. 51 B. Ed. 1539, fol. 61.) It is thus clear that by the law of nations a sovereign State was exempt from suit; and it was also clear that the particular sovereign State, to wit, England, from which country the colonists had derived their laws and institutions, was immune from suit except with its own consent. It remains to be considered if the States whose independence was proclaimed by the immortal Declaration believed themselves free from suit. In this great document the united colonies are declared to be "free and independent States." After specifying certain powers which independent States may exercise, it is further asserted that they have the power "to do all other acts and things which independent States may of right do." The Articles of Confederation, approved by the Congress in 1777, but not ratified by the last of the thirteen States, and therefore not binding upon any of them, until March 1, 1781, declares in its second article the States to be sovereign, free and independent and possessed of every power, jurisdiction and right which it did not grant to the United States in Congress assembled. In Article 9, the States forming the Confederacy allowed themselves to be sued by one another for specified purposes and in a prescribed manner. But it is evident, from the case of Simon Nathan v. the Commonwealth of Virginia (1 Dallas, 77, Note A), tried in the Court of Common Pleas of Philadelphia in the September term of 1781, that, apart from the Articles of Confederation and the right of suit according to the method there prescribed, a sovereign, free and independent State of the Confederacy was immune from suit. The facts of the case are thus stated by the reporter: A foreign attachment was issued against the Commonwealth of Virginia, at the suit of Simon Nathan; and a quantity of clothing, imported from France, belonging to that state, was attached in Philadelphia. The delegates in Congress from Virginia, conceiving this a violation of the laws of nations, applied to the Supreme Executive Council of Pennsylvania, by whom the sheriff was ordered to give up the goods. The counsel for the plaintiff, finding that the sheriff suppressed the writ, and made no return of his proceedings, obtained, September 20, 1781, a rule that the sheriff should return the writ, unless cause was shown. Sovereignty not Always an Exemption Upon the argument, the Attorney General, on the part of the sheriff and by direction of the Supreme Executive Council," showed cause," to quote again the reporter," and prayed that the rule might be discharged." The Attorney General, it will be observed, took his stand upon the law of nations. Thus: He premised, that though the several states which form our federal republic, had, by the confederation, ceded many of the prerogatives of sovereignty to the United States, yet these voluntary engagements did not injure their independence on each other; but that each was a sovereign, "with every power, jurisdiction and right, not expressly given up." He then laid down two positions. 1. That every kind of process issued against a sovereign, is a violation of the laws of nations; and is, in itself, null and void. 2. That a sheriff cannot be compelled to serve or return a void writ.1 Leaving out the balance of the argument supporting these positions, it is to be observed that counsel for the plaintiff admitted the sovereignty of Virginia, but insisted that sovereignty was not a defense against an act of injustice. Thus, to quote the language of the reporter: The counsel for the plaintiff insisted, that though Virginia was a sovereign state, yet this ought not to exempt her property in every case from the laws and jurisdiction of another state. The sovereignty should never be made a plea in bar of justice; and that the true idea of prerogative, was the power of doing good, and, not, as it had sometimes been expressed, "the divine right of doing ill." 2 Without considering the balance of the plaintiff's contention, which, as has been seen, recognized the sovereignty of Virginia, it is sufficient to quote the judgment of this case in the words of the reporter: The Court held the matter some days under advisement; and at their next meeting, the President delivered it as the judgment of the court: "That the rule made upon the sheriff, to return the writ issued against the commonwealth of Virginia, at the suit of Simon Nathan, should be discharged." " The meaning of this is free from doubt. The Commonwealth of Virginia, sovereign under the Articles of Confederation, could not be sued except in the manner prescribed by the Articles of Confederation; that a writ of attachment, if issued, would be dissolved; and that an order of the court directing the sheriff to return the writ would be discharged as inconsistent with the rights of a sovereign State. It can therefore be confidently stated, and without fear of successful contradiction, that the States represented by their delegates in the Philadelphia 11 Dallas, 78. Ibid., 79. Ibid. 80. |