Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/558

an early state of the government, in a suit between private persons, where one party asserted the land in controversy to be in Connecticut and the other in New York; and the court held, that neither state could be considered as a party.^[1] It has been again discussed in some late cases; and the doctrine now firmly established is, that a state is not a party in the sense of the constitution, unless it appears on the record, as such, either as plaintiff or defendant. It is not sufficient, that it may have an interest in the cause, or that the parties before the court are sued for acts done, as agents of the state.^[2] In short, the very immunity of a state from

---

1. Fowler v. Lindsey, 3 Dall. R. 411; S. C. 1 Peters's Cond. R. 190, 191; State of New York v. State of Connecticut, 4 Dall. R. 1, 3 to 6; United States v. Peters, 5 Cranch's R. 115, 139; 1 Kent's Comm. Lect. 15, p. 302, (2d edit. p. 323.)
2. The reasoning of Mr. Chief Justice Marshall in Osborn v. Bank of United States, (9 Wheat. R. 846, &c.) on this point is very full and satisfactory, and deserves to be cited at large. It is only necessary to premise, that the suit was a bill in equity brought by the Bank of the United States against Osborn and others, as state officers, for an injunction and other relief, they having levied a tax of one hundred thousand dollars on certain property of the bank, under a state law of the state of Ohio. "We proceed now," said the Chief Justice, "to the 6th point made by the appellants, which is, that if any case is made in the bill, proper for the interference of a court of chancery, it is against the state of Ohio, in which case the circuit court could not exercise jurisdiction.
   "The bill is brought, it is said, for the purpose of protecting the bank in the exercise of a franchise, granted by a law of the United States, which franchise the state of Ohio asserts a right to invade, and is about to invade. It prays the aid of the court to restrain the officers of the state from executing the law. It is, then, a controversy between the bank and the state of Ohio. The interest of the state is direct and immediate, not consequential. The process of the court, though not directed against the state by name, acts directly upon it, by restraining its officers. The process, therefore, is substantially, though not in form, against the state, and the court ought not to proceed without making the state a party. If this cannot be done, the court cannot take jurisdiction of the cause.
   "The full pressure of this argument is felt, and the difficulties it presents are acknowledged. The direct interest of the state in the suit, as