plish the end in view." 107 U. S. 722; S. C. 2 Sup. Ct. Rep. 136. That is what the court said in the case of Louisiana v. Jumel. Does your honor wonder that they came to that conclusion? Would it be possible for the court to come to any other conclusion, in view of the form of the pleadings and the mode of proceeding adopted by the complainants?

I respectfully submit, then, that the state has consented to be sued. I submit that she has made that consent a matter of contract, upon which she has obtained the loan of money. I submit that she cannot withdraw that consent to the injury of the party with whom she contracted; that such withdrawal impairs the validity of the contract, and is prohibited by the constitution of the United States, which is as binding upon the state, acting in a constitutional capacity, as it is upon the legislature of the state. The theory that the state is a sovereign finds no place in our government. I have already demonstrated that she is not a sovereign, although she possesses some elements of sovereignty. But it is immaterial whether she be a sovereign or not. It is immaterial whether the Union is a compact or a national government. It was established, as recited in the preamble, by the people of the United States, for the purpose, among other things, of establishing justice. And for the purpose of establishing justice they provided that the states should be subject to the judicial power, realizing that it was as necessary to administer justice between a state and her citizens as it is between citizens of different states. Therefore, I contend that I have established the two propositions: First, the submission of the state to the judicial power of the United States, by her entering into the Union; and, secondly, her submission thereto by her own voluntary act in the amendment of 1874 to her constitution.

Such submission to the judicial power of the Union being established, the jurisdiction of this court must be maintained.

BILLINGS. J. In Louisiana v. Jumel and Elliott v. Wiltz, reported in 107 U. S. 711, S. C. 2 Sup. Ct. Rep. 128, it was held by this court, and subsequently declared by the supreme court, that the suit was, in substance and effect, a suit against a state, and therefore that this court had no jurisdiction to hear or determine the same. This suit is brought upon obligations similar in all respects to those involved in the Elliott Case, i. e., issued under the same legislative and constitutional guaranties, and impeded and defied by the same constitutional ordinance. There the plaintiff was a citizen of the state of New York. Here the plaintiff is a citizen of the state of Louisiana. The greater includes the less. If a citizen of another state cannot sue, a fortiori a citizen of Louisiana cannot. The effect of the eleventh amendment of the constitution was a construction by amendment of section 2, art. 3, of the constitution; and so far as, under that section, it had been held that the judicial power included a suit between a state and citizens of another state, when the state was defendant, that construction had been reversed. So far as relates to the class of cases to which this case belongs, viz., where a state is sued by its own citizens, the constitution had never included it, but had by implication excluded it.

The general clause, that "the judicial power shall extend to all cases in law and equity arising under the constitution of the United States," establishes the rule of boundary of jurisdiction so far as it depends upon the subject-matter of the suit, but was not meant to change or v.24F,no.2-5

affect the capacity or liability of parties to be sued. It therefore included all suits involving or arising under the federal constitution, brought by parties competent to sue against parties capable of being sued. It included all suits of a requisite character against parties so situated or constituted that they could be sued, whether brought by individuals or by the United States or one of the states or by a foreign government; but it had no effect to subject to the jurisdiction of the courts parties incapable to be sued.

Indeed, it is to be observed that in the enumeration of the cases to which the judicial power extends, (Const. art. 3, § 2,) while there is specified the cases "between a state and citizens of another state, and between a state and the citizens thereof and foreign states, citizens or subjects," there is no mention of cases between a state and its own citizens. It is undoubtedly true that this enumeration of parties who could sue merely by virtue of their own character would not at all prevent the inclusion within the judicial power of other cases on account of the nature of the controversy. But when the jurisdiction is given merely by the character of the questions involved, it must be a suit in law or equity; that is, a demand presented against a party defendant, who, according to its nature and relations to others, can be sued. According to the settled ideas relating to governments, a state can no more be sued contrary to its continuing assent than can the dead. No matter what the nature of the controversy against the dead, human tribunals can take no cognizance of it. No more can they against a state against its will. The reason is that weightiest public reasons prevent that control over the treasury and resources of a state, and the compulsory appropriation thereof to the extinction of its debts on the part of courts, which the recovery of a judgment implies and necessitates. When the constitution was adopted, the effective enforcement of money judgments, obtained in equity, was by sequestration, and in law by the imprisonment of the debtor, which, of course, would be inapplicable to indebted states. Not more inconsistent with the functions of states, and, indeed, with their very existence, or organisms for the protection of the lives and property and health of the citizens, and their advancement by education, is any judicial control over the property of the states by bringing them directly before the courts. Though they do not make war or peace, nor regulate foreign or domestic commerce, nor deal with foreign governments, nor with each other through treaties, they still must, as sovereigns, regulate the taxation of the citizens, and must apply the taxes, when levied, to the repelling of pestilence, to the maintenance of schools and public order, and the promotion of the rights of all its citizens in their persons and estates. Its taxes must be levied, and its public lands disposed of, by legislative will, for which a mandamus from the courts, or a marshal's sale, cannot be substituted. The payment of the debts of a state is left to be enforced by an enlightened public conscience, which, at the time the constitution was adopted,

was thought to be an ample power to prevent all repudiation. It is matter of regret that just creditors of a state should be disregarded or defied; but even that is better than that government should be crippled and public good be possibly defeated, or public necessities go unprovided for.

These are the reasons which were given by the publicists and jurists against a state being sued against its will,-its continuing will, -when the constitution was submitted for adoption. These were the reasons given by Alexander Hamilton in the Federalist, No. 81, (Washington Ed. of 1818,) p. 508, when he says:

"It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every state in the Union. * ** There is no color to pretend that the state governments would, by the adoption of the plan of the convention, be divested of the privilege of paying their debts in their own way, free from every constraint but that which flows from the obligations of good faith. The contracts between a nation and individuals are only binding on the conscience of the sovereign, and have no pretension to a compulsive force. They confer no right of action independ ent of the sovereign will. To what purpose would it be to authorize suits against states for the debts they owe? How could recoveries be enforced? It is evident it could not be done without waging war against the contracting state; and to ascribe to the federal courts by mere implication, and in destruction of a pre-existing right of the state governments, a power which would involve such a consequence, would be altogether forced and unwarrantable."

See, also, Mr. Madison, as reported in 2 Elliot's Debates, 390. He there says: "It is not in the power of individuals to call any state into court." Mr. Webster, in his letter to Baring Bros. & Co., vol. 6, (Everett's Ed.,) at page 539, says:

"The security for state loans is the plighted faith of the state as a political community. It rests on the same basis as other contracts with established governments,--the same basis, for example, as loans made by the United States under the authority of congress; that is to say, the good faith of the government making the loan, and its ability to fulfill its engagements. It has been said that the states cannot be sued on these bonds. But neither could the United States be sued, nor, as I suppose, the crown of England. Nor would the power of suing give to the creditors, probably, any substantial additional security. The solemn obligation of a government arising on its own acknowledged bond would not be enhanced by a judgment rendered on such bond. If it either could not or would not make provision for paying the bond, it is probable that it could not or would not make provision for satisfying the judgment."

When the legislature of Massachusetts protested against the decision in Chisholmv. Georgia, 2 Dall. 419, it was against a state being sued by any one. This was the utterance of the conventions of New York and Rhode Island when they voted for the adoption of the constitution. This was the meaning of the eleventh amendment. It introduced no new provision, but corrected what the people of three-fifths of the states thought was an erroneous construction. The reasons which prompted it, and the arguments which secured it, are equally

strong against the citizen suing his own state, and against his suing any other state. In both cases the exemption springs from the inability of a court to deal directly with the treasury of a state.

In the cases of Cohens v. Virginia, 6 Wheat. 319, and of Ames v. Kansas, 111 U. S. 470, S. C. 4 Sup. Ct. Rep. 437, the court held that when a state instituted a suit it necessarily submitted itself to all reviews in and transfers to the federal courts, which the constitution and laws establishing the court authorized,-i. e., that having voluntarily taken the position of suitor, the state had necessitated the enforcement of all legally established rules by which the rights of parties litigant were ascertained and adjudged; and these cases hold nothing more. The contest there was as to what followed in the progress of a cause where the character of a suitor had been voluntarily assumed by a state to enforce a demand or a proceeding. The contest here is altogether different, and is whether a state can compulsorily be made a suitor. In both these cases the learned chief justices expressly reserve the question as to the right to present a demand against a state, even in a cause instituted by a state. They say, Chief Justice MARSHALL speaking originally, and Chief Justice WAITE speaking by quotation:

"The argument would have great force to prove that this court could not establish the demand of a citizen upon his state, but is not entitled to the same force when urged to show that this court cannot inquire whether the constitution and laws of the United States protect a citizen from a prosecution instituted against him by a state."

After an attentive consideration of the able arguments made and authorities cited by the counsel, my conclusion is that while the act of 1875, so far as jurisdiction depends upon the nature of the litigation, makes the jurisdiction of the circuit court co-extensive with the judicial power created by the constitution, and therefore includes all suits in law or equity involving a federal question, nevertheless, that does not include a suit against a state, for the reason that it is incapable to be sued against its continuing assent; and where, as here, the object of the suit is the recovery of money, courts would be without any means of enforcing the judgment without an assumption of those powers which, in accordance with the checks and balances and distribution of powers in all well-constituted governments, are unchangeably and forever political, and not judicial.

The exception must be maintained, and the suit dismissed.

See note to Baltimore & O. R. Co. v. Allen, 17 FED. REP. 188-197.—[Ed.

MCALPINE and others v. TOURTELOTTE and others.

(Circuit Court, D. Kansas. June 8, 1885.)

1. EQUITY JURISDICTION-SUIT TO QUIET TITLE-EJECTMENT PENDING IN STATE COURT.

The fact that a complainant in a suit to quiet title founds his claim on a title derived from a decree in bankruptcy, will not give the circuit court jurisdiction to entertain the suit when an action of ejectment for the land in controversy is pending in the state court, and no relief could be granted without enjoining such action.

2. SAME-CONSTRUCTION Of Deed.

Where a party purchases land of a bankrupt at the assignee's sale, the mere fact that the description of the land is susceptible of two constructions will not justify a resort to a court of equity, as a court of law can, in such a case, decide what is the proper construction to place upon the deed as well as a court in chancery.

3. SAME REMEDY AT LAW-MULTIPLICITY OF SUITS.

When a complainant's title is a title which he can enforce at law, he must show some special reason for going into chancery, even though there are several parties opposed to him and contesting his rights.

4. BANKRUPTCY-TITLE ACQUIRED BY PURCHASER AT ASSIGNEE'S SALE.

When proceedings to set aside a bankrupt's discharge, and subject certain land omitted by him from his schedule, are instituted after the deed of such land has been recorded and the land is scheduled by a new assignee, and sold by order of the court, the purchaser at such sale will acquire whatever title the bankrupt had in the land at the time of the sale, and if the bankrupt got any better or different title from the time he went into bankruptcy to the time the judicial sale was made, that title will inure to the benefit of the purchaser.

Suit by a Bill in Chancery to Quiet Title. The facts appear in the opinion.

James M. Mason and John W. Day, for complainants.
Goodin & Keplinger, for defendants Snyder.

Jefferson Brumbach, for defendant Tourtelotte.

MILLER, Justice. This suit is by a bill in chancery, the main purpose of which, perhaps, is expressed in the equitable phrase "to quiet title." The title to be quieted originated in this way: Mr. Joseph E. Snyder, who is the common source of title to all the parties in this controversy, became bankrupt in 1867, and was discharged from liability to all his debts. Not long thereafter there appeared upon the records of the land-titles of the county in which he lived evidence of title in him to property which had not been found there before, which had not been presented by him in his schedule of assets; and this induced some of the creditors to undertake to set aside his discharge, and to subject that property to sale for his debts. It is unimportant to go very much into the details of that proceeding in bankruptcy. It is sufficient to say that the discharge was set aside; that a new assignee was appointed; and that this assignee, under the directions of the court, produced a new schedule of the property, which was supposed to include the land now in controversy-part of it, or all of it.