Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/599

§ 1716. The next inquiry is, whether the eleventh amendment to the constitution has effected any change of the jurisdiction, thus confided to the judicial power of the United States. And here again the most satisfactory answer, which can be given, will be found in the language of the same opinion.^[1] After quoting the words of the amendment, which are, "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the states by citizens of another state, or by citizens or subjects of any foreign state," the opinion proceeds:

It is a part of our history, that, at the adoption of the constitution, all the states were greatly indebted; and the apprehension, that these debts might be prosecuted in the federal courts, formed a very serious objection to that instrument. Suits were instituted; and the court maintained its jurisdiction. The alarm was general; and, to quiet the appre-

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its appellate form."^{[a 1]} Now, these expression, if taken in connection with the context, and the general scope of the argument, in which they are to be found, are perfectly accurate. It is only by detaching them from this connection, that they are supposed to speak a language, inconsistent with that in Cohens v. Virginia, (6 Wheat. R. 392 to 399.) The court, in each of the cases, where the language above cited is used, were referring to those classes of cases, in which original jurisdiction is given solely by the character of the party, i.e. a state, a foreign ambassador or other public minister, or a consul. In such cases, if there would be no jurisdiction at all, founded upon any other part of the constitutional delegation of judicial power, except that applicable to parties, the court held, that the appellate jurisdiction would not attach. Why? Plainly, because original jurisdiction only was given in such cases. But where the constitution extended the appellate jurisdiction to a class of cases, embracing the particular suit, without any reference to the point, who were parties, there the same reasoning would not apply.

1. Cohens v. Virginia, 6 Wheat. R. 406 to 412.

1. Osborn v. Bank of United States, 9 Wheaton's R. 820.