were not imparted by that circumstance to the Bank. The United States was not a party to suits brought by or against the Bank in the sense of the Constitution. So with respect to the present Bank. Suits brought by or against it are not understood to be brought by or against the United States. The government, by becoming a corporator, lays down its sovereignty, so far as respects the transactions of the corporation, and exercises no power or privileges which is not derived from the charter.

"We think, then, that the Planters' Bank of Georgia, is not exempted from being sued in the federal courts, by the circumstance that the state is a corporator."

§ 67. But where the state is sued and made a party on the record, in its political capacity, the amendment applies: and the Supreme Court have held that the state itself may be considered as a party on the record, when its chief magistrate is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character.2

§ 68. Whether the amendment extends to admiralty proceedings in rem, so that on the appearance of a state as claimant, all further proceedings must be stayed, is a point admitting of much doubt. Mr. Justice Story has expressed the opinion, that in such a case, the jurisdiction of the court is founded upon the possession of the thing, and that by interposing a claim, a state would not be before the court merely in the character of a defendant, but as an actor. He has also adverted to the language of the amendment, which is that the judicial power shall not be construed to extend to any suit in law or equity, to which a state is a party; and has suggested that a suit in admiralty is not, correctly

19 Wheaton, 906. See also, The Bank of the Commonwealth of Kentucky v. Wistar, 2 Peters, 318.

2 The Governor of Georgia v. Madrazzo, 1 Peters, 110, 123, 124.

speaking, a suit in law or equity. In the Governor of Georgia v. Madrazo, it was considered by the Supreme Court, that the libel was a suit in personam, against the state, and not a suit in rem; and consequently that it could not be sustained, because it was a case for the original jurisdiction of the Supreme Court. The court, therefore, did not decide the point whether the 11th amendment to the Constitution. extends to proceedings in admiralty.2

§ 69. A further question may arise upon this clause of the Constitution, as to the nature of the interest which a state must have when it proceeds as a party plaintiff against the citizens of another state. Is it merely required that the state should be a nominal party to the record, in order to give the courts of the United States jurisdiction, or is it necessary that a substantial interest of the state, and what interest, should appear to be involved? We have seen that it is not enough, in order to bring a case within the restraining operation of the 11th amendment, to show that the state has an incidental or resulting interest in the controversy. If an officer of a state is sued for an act done under its authority, or if a corporation is sued, in which a state is a corporator, the suit may still be maintained, because the state is not a party upon the record, notwithstanding its interest in the controversy. But when the converse of this case occurs, and a state becomes plaintiff, and is thus a party upon the record, proceeding against the citizens of another state, on the ground that it is a controversy between a state and the citizens of another state, it would seem that the interest of the state must be immediate and direct, and not remote or contingent; because the jurisdiction attaches upon the ground that the state is a party, and it seems that the court will look into the nature of the controversy, and ascertain whether the state is entitled to take this attitude. This has been

done where the Supreme Court have been called upon to

13 Story's Commentaries on the Constitution, 1683. 21 Peters, 124.

exercise original jurisdiction, on the ground that a state was a party in a proceeding against citizens of another state; and as such a proceeding can only be had in that jurisdiction, the cases in which it will be exercised will determine the nature or degree of the interest which the state must appear to have, beyond its bare appearance as a party to the record.

§ 70. Thus, where the State of Pennsylvania brought a bill in equity in the Supreme Court, to restrain certain citizens of the State of Virginia from erecting a bridge across the river Ohio, upon the ground, among other things, that by obstructing the navigation of the river, it was an injury to certain public works belonging to the State of Pennsylvania erected within her own limits; the court distinguished the case from a case in which protection might be sought to the interests of citizens of the state, or to remote and contingent interests of the state itself, and placed the jurisdiction upon the ground of a direct and immediate interest of the state in the protection of its own property.1

"As this is the exercise of original jurisdiction by this court, on the ground that the State of Pennsylvania is a party, it is important to ascertain whether such a case is made out as to entitle the state to assume this attitude. In the second section of the third article of the Constitution, it is declared that the Supreme Court shall have original jurisdiction in a case where a state shall be a party.

"In this case the State of Pennsylvania is not a party in virtue of its sovereignty. It does not come here to protect the rights of its citizens. The sovereign powers of a state are adequate to the protection of its own citizens, and no other jurisdiction can be exercised over them, or in their behalf, except in a few specified cases. Nor can the state prosecute this suit on the ground of any remote or contingent interest in itself. It assumes and claims, not an abstract

State of Pennsylvania v. The Wheeling, &c., Bridge Co., et al., 13 Howard, 518, 559.

right, but a direct interest in the controversy, and that the power of this court can redress its wrongs and save it from irreparable injury. If such a case be made out, the jurisdiction may be sustained.

"When a state enters into a copartnership, or becomes a stockholder in a bank or other corporation, its sovereignty is not involved in the business, but it stands and is treated as other stockholders or partners. And so in the present case, the rights asserted and relief prayed, are considered as in no respect different from those of an individual. From the dignity of the state, the Constitution gives to it the right to bring an original suit in this court. And this is the only privilege, if the right be established, which the State of Pennsylvania can claim in the present case.

"It is objected, in the first place, that there is no evidence that the State of Pennsylvania has consented to the prosecution of this suit in its own name.

"This would seem to be answered by the fact, that the proceedings were instituted by the Attorney-General of the State. He is its legal representative, and the court cannot presume, without proof, against his authority. In January, 1850, the following declaration, passed unanimously by both branches of the Pennsylvania Legislature: 'Whereas, the navigation of the River Ohio has been and is now obstructed by bridges erected across its channel, between Zane's Island and the main Virginia and Ohio shores, so that steamboats and other water-crafts hitherto accustomed to navigate said river, are hindered in their passage to and from the port of Pittsburg, and other ports in the State of Pennsylvania, and the trade and commerce and business of this commonwealth interrupted, the revenue of her public works diminished and impaired, and steamboats owned and navigated by citizens of this state, bound to and from her ports, are subjected to labor, expense and delay, with hazard to life and property, by reason whereof the said bridges are a common and public nuisance, injurious to the State of Pennsylvania and her citizens; therefore, be it resolved, &c.

"2. That the proceedings in behalf of said state, insti

tuted by her Attorney-General in the Supreme Court of the United States, and now pending therein against the Wheeling and Belmont Bridge Company, to abate the nuisance occasioned by their bridge lately erected across the Ohio, be prosecuted to final judgment, decree, and execution, for abatement of said nuisance.'

"On a question of disputed boundary between two states, although the inquiry of the court is limited to the establishment of a common line, yet the exercise of sovereign authority, over more or less territory, may depend upon the decision. This gives great dignity and importance to such a controversy, and renders necessary a broader view, than on a question as to the mere right of property. But in the present case, the State of Pennsylvania claims nothing connected with the exercise of its sovereignty. It asks from the court protection of its property, on the same ground and to the same extent as a corporation or individual may ask it. And it becomes an important question whether such facts are shown, as to require the extraordinary interposition of this court."

§ 71. In this case, therefore, the State of Pennsylvania was not only the nominal plaintiff upon the record, but it had a direct proprietary interest in certain public works from which it derived revenues, to be protected; and it was upon this ground that the court said it was entitled to assume the attitude of a party. It would seem, therefore, that the court will look into the nature of the controversy, and that the jurisdiction requires not merely that the state should be a nominal party, but that it should have a real, direct, and substantial interest.

§ 72. The next class of cases is "controversies between citizens of different states." This, as has already been observed, is one of the cases where jurisdiction is conferred solely on account of the character, or rather the situation of the parties. And the first question that arises is, who are "citizens of different states," within the meaning of this clause.