amendment was rejected in the First Congress by the Senate.' This was the first attempt to fix, by constitutional provision, a limit of value to the matter in controversy.

Jealousy of the power conferred upon the Supreme Court was early shown by other propositions to limit the extent of its jurisdiction. The amendment of the Virginia and North Carolina conventions, recently referred to, was presented as a substitute for the article in the Constitution relative to the Federal court.2 This proposition omitted from the list of cases over which the United States courts should have jurisdiction several of those enumerated in the Constitution, thus curtailing the influence of the Federal court and the power of the General Government.3 A similar amendment was introduced in the Senate during the First Congress.4

Another set of amendments attacked the clause which was later construed to admit suits against States. Mr. Tucker, in 1789, in the House proposed to so amend this clause that it should read as follows: "Cases between a State and foreign States, and between citizens of the United States. States claiming the same lands under grants of different States."

The clause affecting suits as to lands gave rise to a proposition by the New York convention forbidding the extension of the Federal judicial power to such controversies unless they relate to claims of territory or jurisdiction between States and individuals under the grants of different States."

Another cause of grievance was the retroactive jurisdiction given to the court. The Virginia and North Carolina conventions included a provision in their amendment prohibiting the judicial power of the United States from extending to cases where the cause of action originated before the ratification of the Constitution, except in territorial disputes and suits for debts due to the United States." This likewise failed in the First Congress, but the Rhode Island convention in 1790 renewed the proposition.9

App., No. 256.

2 App., Nos. 39, 92; ante par., 74.

3 The following clauses were to be omitted: "Between a State and citizens of another. State; between citizens of different States, and between a State, or the citizens thereof, and foreign States, citizens, or subjects."

4 App., No. 284.

5 App., No. 209.

6 App., No. 73.

"This would have thrown out the Gideon Olmstead case. Post, p. 157, note 6; p. 160. 8 App., Nos. 39, 92.

"App., No. 108.

76. JURISDICTION OF THE COURTS-SUITS AGAINST STATES.

Uneasiness was early felt over the question of the suability of a State,1 as is shown by the action of the ratifying convention of Rhode Island in declaring, May, 1790, that the judicial power of the United States, in cases in which the State may be a party, does not extend to criminal prosecutions, or to authorize any suit by a person against a State; and in order to remove all doubt they proposed an amendment asserting that Congress did not have power to interfere with a State in the redemption of its paper money.2

3

When, a few years later, the Supreme Court in its first important constitutional decision held that a State could be sued by an individual citizen of another State, State sovereignty was instantly aroused, especially in Georgia, Maryland, New York, and Massachusetts, whose officers had been cited to appear before the bar of the Federal court as defendants in such suits. The legislature of Georgia expressed its indignation by passing a law subjecting to death "without benefit of clergy" any officer who should serve such a process against that State. Many of the other States, being heavily in debt, joined the movement to secure an amendment. The first effort in Congress to secure an amendment to the Constitution in regard to this question was made early in 1793, when a resolution containing the exact phraseology of the present eleventh amendment was introduced in the Senate, considered, and postponed. Before the close of the year the legislatures of several States, following the example of Massachusetts, passed resolutions calling on their Representatives to take

1 Madison and Marshall in the Virginia convention both denied that the Constitution would warrant the exercise by the Supreme Court of the power to summon an unwilling State as defendant against an individual. Elliot's Debates, III, 533, 555. Hamilton held in the Federalist (No. LXXXI) that the provision only applied to action to be brought by a State, and not against it. See also Haus v. Louisiana, 134 U. S., 1, for historical review. 2 App., No. 108. The Rhode Island legislature had already (1786) had trouble with its State judiciary over a legal-tender law it had passed to force the acceptance of the State paper at its face value, in the case of Trevitt v. Weeden, 2 Chandler's Criminal Trials, 269. See also article by J. B. Thayer in Harvard Law Review, Vol. VII, No. 3; Adams in Atlantic Monthly, Vol. LIV, pp. 618-619; Coxe, Judicial Power and Unconstitutional Legislation, p. 234 et seq.; Willoughby, The Supreme Court, p. 31; Cooley, Const. Limitations, p. 160, note 3. McMaster, Vol. 1, pp. 331-341; post, par. 137.

3 Chisholm v. Georgia, 2 Dallas, 419. McMaster, Vol. II, pp. 182-186.

4 Van Stophorst v. Maryland, 2 Dallas, 401.

5 Oswald v. New York, 2 Dallas, 401, 415.

Vassal v. Massachusetts, Hildreth, IV, 407, 446; Pitkin, Hist. of the United States, II, 335, 341; Const. Hist. as Seen in Am. Law, 70-71.

'App., No. 313.

speedy and effectual measures to secure the adoption of this amendment to the Constitution. In the next session of Congress the amendment was reintroduced in the Senate.? Two unsuccessful attempts were made to amend it—one by Gallatin, to permit suits against States in the United States courts instituted by individuals only in cases arising under treaties;1 the other to permit the jurisdiction of the United States to extend as provided in the Constitution, except when the cause of action shall have arisen before the ratification of the amendment. This, if passed, would have retained the jurisdiction of the court over all future cases, but would have dismissed all the previous cases, such as those then agitating the country, which had arisen out of the Revolutionary war.

The amendment passed the Senate by the large majority of 23 yeas to 2 nays. In the House an attempt to amend was made by adding to the article the following words: "When such States shall have previously made provision in their own courts whereby such suits may be prosecuted with effect." It received only 8 votes in its favor, and the Senate proposition passed by a vote of 81 yeas to 9 nays, and soon after received the necessary ratification and became incorporated into the Constitution as the eleventh amendment."

But even this amendment did not go far enough in restricting the jurisdiction of the Federal courts to satisfy all. In 1805 Senator Breckenridge of Kentucky introduced an amendment from the legislature of his State, which read: "The judicial power of the United States shall not be construed to

1 App., Nos. 319a, 319b, 319c, Massachusetts, Connecticut, and Virginia. The Massachu setts resolutions declared that the power claimed of compelling a State to be made a defendant in United States courts in such cases is "dangerous to the peace, safety, and independence of the several States and repugnant to the first principles of a Federal Government." The Virginia resolutions declared "the decision of the Supreme Federa! Court incompatible with and dangerous to the Sovereignty and Independence of the Individual States, as the same tends to a general consolidation of these confederated Republicks."

4If such a provision had been adopted the recent trouble with Italy caused by the Louisiana episode might have been avoided by giving the relatives of the persons killed an opportunity to seek redress in the United States courts.

5 App., No. 323.

6 It would have prevented further action in the Gideon Olmstead case, which was not finally settled until 1809. The case grew out of the seizure of the sloop Active in 1778 and the difference in the decisions rendered by the Pennsylvania court of admiralty and the Committee of Appeal of the Congress of the Confederacy. Annals of Congress, Eleventh Congress, second session, pp. 2253-2270. Post, par. 77.

7 App., No. 321, for list of States ratifying. In Hollingsworth v. Virginia, 3 Dall., 378, decided in 1798, it was declared that the amendment had been constitutionally adopted, not requiring the signature of the President.

1

extend to controversies between a State and the citizens of another State; between citizens of different States; between citizens of the same State claiming land under grants of different States, and between a State and the citizens thereof and foreign States, citizens, or subjects." This same amendment was indorsed in the following year by the legislatures of Georgia, Pennsylvania, New Jersey, and Vermont. In 1807 Henry Clay, shortly after his first appearance in Congress, while filling the unexpired term of Senator, submitted a resolution similar to that proposed by the Senator from his State two years before.3

In 1833 the legislature of Georgia, in her call for a constitutional convention, expressed a desire that the Constitution should be so amended "that the jurisdiction and process of the Supreme Court may be clearly and unequivocally settled." This subject was without doubt suggested by the recent conflict of jurisdiction between the Supreme Court and the State of Georgia in the Cherokee cases.5

Some of the resolutions in regard to the establishment of the tribunals other than the Supreme Court for the settlement of disputes arising between the States and the General Government, which are discussed in the following section, would have conferred upon the Senate or some other body the duty of pronouncing upon the constitutionality of State laws, but an amendment introduced in 1846 proposed not only to absolutely prohibit the judicial department from declaring void "any act of Congress or of any State legislature, on the ground that it is contrary to the Constitution of the United States or contrary to the constitution of any particular State," but also failed to confer this power upon any other branch or department of the Federal Government.

But few propositions relative to the jurisdiction of the Supreme Court have since been presented, and these few within. recent years. The only other attempt to restrict the jurisdiction of the Federal courts was made in 1882 by members from Mississippi in both branches of Congress. On the other band,

App., No. 365. For other attacks on the Federalist judiciary at this same period, see ante, pp. 149-150, and notes.

2 App., Nos. 365a, 370, 375a, 378. Rhode Island disagreed, H. J., Vol. v, reprint, p. 328.

3 App., No. 379.

4 App., No. 617.

5 Cherokee Nation v. Georgia, 5 Peters 1; Tassels v. Georgia, Von Holst 1, pp. 433-458;

See post, par. 77, 5 Peters, 1; Worcester v. Georgia, 6 Peters, 515.

there have been two propositions which show a tendency to extend rather than to curtail the jurisdiction of the courts. The first of these, introduced in 1872, was intended primarily to facilitate the decision of the constitutionality of any Federal law. It provided that the Supreme Court "shall have original jurisdiction in all cases involving or affecting the constitutionality of any Federal law, so far as to determine the question of the constitutionality of the same," and "upon the application of any State, corporation, or person, suggesting the unconstitutionality of any Federal law or any part thereof," should, within six months from the date of the application, determine the question. It is worthy of note that the second of these, and also the last amendment presented relative to the judiciary, proposed to rescind the eleventh amendment, and give Congress power to provide "by appropriate legislation for the legal enforcement of the obligations of contracts entered into by any of the States of the Union." This was introduced by Mr. Moore, in 1883, and is the only attempt that has been made to repeal the eleventh amendment since its adoption. This proposition was probably suggested by the impunity with which some of the States have repudiated their debts.3

77. OTHER TRIBUNALS FOR THE SETTLEMENT OF DISPUTES BETWEEN THE STATES AND THE GENERAL GOVERNMENT.

In consequence of the difficulty arising out of the relations between the States and the United States, there have been six amendments introduced at different periods providing for some other tribunals higher than the Supreme Court. These will be considered chronologically.

(1) The New York convention of 1788 proposed that a person aggrieved by any judgment of the Supreme Court, in any cause in which the court had original jurisdiction, should, upon application, have a commission review the case with power to correct the errors in the judgment, sentence, or decree. This commission was to consist of not less than seven men learned in the law, appointed by the President upon the confirmation of the Senate.4

1 App., No. 1346. It further made provision for extending the appellate jurisdiction of the Supreme Court to all cases "where the writ of habeas corpus will lie in the several Federal courts inferior to the Supreme Court."

2 App., No. 1573.

3 Virginia had been particularly prominent in this movement. Attempt was made by creditors to collect from Louisiana by transferring their evidence of indebtedness to other States (New Hampshire v. Louisiana and New York v. Louisiana, 108 U. S., 76), but failed. See also Haus v. Louisiana, 134 U. S., 1.

4 App., No. 71.