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ted States, an order was made, allowing them to file an amended and supplemental bill, making Samuel Sullivan, the Treasurer of state, a defendant,“ as present Treasurer of Ohio, and in his private and individual character ;" and also making Hiram Mirick Curry, late Treasurer, and John L. Harper, the officer that collected the tax, defendants. Upon the filing of which amended and

supplementary bill, a further order of injunction was made, prohibiting the Treasurer of state from “negotiating, delivering over, or in any manner parting with or disposing of the money collected for tax, and paid into the state treasury according to law. And it further appears, that besides these proceedings, an action of trespass at the suit of the Bank of the United States, was commenced and made returnable to the last September term of the same circuit court, against Ralph Osborn, John L. Harper, Thomas Orr, James M'Collister, John C. Wright and Charles Hammond, in which the plaintiffs have filed a declaration, charging, among other things, the taking and carrying away the same sum of money in the proceedings in chancery specified, under color and pretence of the law of Ohio.

Whatever attempt may be made to characterise this proceeding as a controversy between individuals, it is evident that its practical effect is to make the state a defendant before the circuit court of the United States. In every thing but the name, the state is the actual defendant. No

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other interest but that of the state is involved. In every stage of the enquiry, the rights, interests and powers of the state only are presented for adjudication. The final

process must operate on the state, and, if effectual, must derange totally the official accounts both in the Auditor's and Treasurer's departments ; for if there be a specific decree, as prayed for in the supplemental bill, a specific execution may be sent into the state treasury, to carry that decree specifically into effect.

Nor is it only in its practical effect, that the real character of this proceeding is to be perceived. It is distinctly avowed in the body of the bill, both by naming the General Assembly of Ohio, as the offending party, and by calling on the court to restrain the Auditor of state from performing official acts in his official character. And, in fact, it would seem, from the foundation upon which the injunction was allowed, both on the first and second application, that the court must have regarded it as substantially a proceeding against the state.

All judicial proceedings are founded upon facts established judicially. The transactions of individuals are verified by testimony judicially taken. But the proceedings of states and governments are regarded as of public notoriety, to be received upon the evidence of general history. When an individual applies for an injunction against another individual, his application is never regarded, unless the matter alleged in his petition be established

by his own affidavit, or that of others. The court never restrains an individual in the exercise of his supposed rights, upon the naked suggestion of another. The law of Virginia, of Kentucky and of Ohio alike requires, that before any injunction sball be granted, the judge or court granting it, shall be satisfied by affidavit, at the foot of the bill, or by other means, that the allegations in the bill are true. The practice of the federal court, and federal judges in Ohio, has been to require proof. No injunction has been granted upon mere suggestion, until that against Ralph Osborn,. Auditor of state : no other injunction has been granted upon mere suggestion, but that against Samuel Sullivan, Treasurer of state. Both these injunctions were granted instantly, upon application by bill alone without any proof being offered or required, that one single allegation contained in the bill, was true. This departure from the common course of proceeding can be accounted for and vindicated upon but one ground: that the party substantially a defendant was a sovereign state, all of whose proceedings were matters of public notoriety, of which the court was informed without proof in the ordi

nary mode.

By the original provisions of the constitution of the United States, the federal judiciary were empowered to take cognizance of controversies between a state and citizens of another state : but by the same instrument this jurisdiction was vest. ed exclusively in the supreme court. A state nev.

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er could be held to answer or made amenable be-
fore a circuit court of the United States. By the
eleventh amendment to the constitution, this pow-
er to call a state to answer before the supreme
court; at the suit of a citizen was wholly taken
from the federal judiciary.-It is perfectly clear
that before this amendment to the constitution was
made, the circuit court of the United States could
not have entertained jurisdiction of a suit in equity,
enjoining the state officers from executing the state
laws, in a case of the direct action of the state
sovereignty, like that for the collection of taxes.
The principal, and not the ministerial agent is al-
ways
tbe
proper

defendant in such a suit. That
principal, being directly and personally amenable
in the supreme court, his case could not be drawn
to a tribuual that had no jurisdiction over the
principal, by instituting a suit against the agent
alone. The state, before the amendment, could
be sued in equity before the supreme court of the
United States, and could, in a proper case, be
there enjoined. In that court only, could a state
be prohibited from carrying her laws into opera-
tion. For that very reason her officer could not
be enjoined in a circuit court. It would be to sub-
ject the interest and rights of the state to the de-
cision of a tribunal that had no jurisdiction to de
cide upon them, and where the state could not be
admitted a defendant to defend them. It is there-
fore a strange doctrine, to maintain that an amend.
ment to the constitution, expressly forbidding the

judges so to construe the constitution, as to call states before the supreme courts as defendants, at the suit of individuals, is to operate as vesting the circuit courts with power to do that indirectly which they never had any direct power to do. The amendment was intended to proteot the states from a direct responsibility, upon process before the supreme court': the only tribunal before which they were then liable to be called to answer. By the construction now attempted, this amendment is made to vest the circuit court with a jurisdiction equally effective against the state, though indirect in its form of proceeding. It effects pothing but the degradation and humiliation of the states. Instead of the distinction of being called to defend its rights before the highest judicial tribunal of the nation, the state is reduced to the level of the most ordinary citizen, and made answerable in an inferior tribunal Instead of enjoying the privilege of managing directly its own interests, and absolutely controling its own defence, the state must submit to the consequence of blending its interests, with the timidity or treachery of others, and must be copcluded by a decision made, in a case, which it is in the

power

of others to manage as they please. The committee are persuaded that such was not the object of the amendment, and that such is not the correct construction of the constitution.

It is asserted, that this is an individual proceed. ing against the persons named as defendants ; that

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