But Hamilton was not alone in protesting against the construction put upon the Constitution by its opponents. In the Virginia convention the same objections were raised by George Mason and Patrick Henry, and were met by Madison and Marshall as follows: Madison said: "Its jurisdiction [the Federal jurisdic. tion] in controversies between a State and citizens of another State is much objected to, and perhaps without reason. It is not in the power of individuals to call any State into court. The only operation it can have is that, if a State should wish to bring a suit against a citizen, it must be brought before the Federal court. This will give satisfaction to individuals, as it will prevent citizens on whom a State may have a claim being dissatisfied with the State courts. * * * It appears to me that, this [clause] can have no operation but this to give a citizen a right to be heard in the Federal courts, and, if a State should condescend to be a party, this court may take cognizance of it." 3 Elliott Debates, 533. Marshall, in answer to the same objection, said: "With respect to disputes between a State and the citizens of another State, its jurisdiction has been decried with unusual vehemence. I hope that no gentleman will think that a State will be called at the bar of the Federal court. * * It is not rational to suppose that the sovereign power should be dragged before a court. The intent is to enable States to recover claims of individuals residing in other States. * * * But, say they, there will be partiality in it if a State cannot be a defendant; if an individual cannot proceed to obtain judgment against a State, though he may be sued by a State. It is necessary to 80, and cannot be avoided. I see a difficulty in making a State defendant which does not prevent its being plaintiff." Id. 555.

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It seems to us that these views of those great advocates and defenders of the Constitution were most sensible and just, and they apply equally to the present case as to that then under discussion. The letter is appealed to now, as it was then, as a ground for sustaining a suit brought by an individual against a State. The reason against it is as strong in this case as it was in that. It is an attempt to strain the Constitution and the law to a construction never imagined or dreamed of. Can we suppose that, when the eleventh amendment was adopted, it was understood to be left open for citizens of a State to sue their own State in the Federal courts, while the idea of suits by citizens of other States, or of foreign States, was indignantly repelled? Suppose that Congress, when proposing the eleventh amendment, had appended to it a proviso that nothing therein contained should prevent a State from being sued by its own citizens in cases arising under the Constitution or laws of the United States, can we imagine that it would have been adopted by the States? The supposition that it would is almost an absurdity on its face.

The truth is that the cognizance of suits and actions unknown to the law, and forbidden by the law, was not contemplated by the Constitution when establishing the judicial power of the United States. Some things, undoubtedly, were made justifiable which were not known as such at the common law; such, for example, as controversies between States as to boundary lines, and other questions admitting of judicial solution. And yet the case of Penn v. Lord Baltimore, 1 Ves. Sr. 444, shows that some of these unusual subjects of litigation were not unknown to the courts even in colonial times; and several cases of the same general character arose under the Articles of Confederation, and were brought before the tribunal provided for that purpose in those articles. 131 U. S. App. 50. The establishment of this new branch of jurisdiction seemed to be necessary from the extinguishment of diplomatic relations between the States. Of other controversies between a State and another State or its citizens,

which, on the settled principles of public law, are not subjects of judicial cognizance, this court has often declined to take jurisdiction. See Wisconsin v. Insurance Co., 127 U. S. 265, 288, 289, and cases there cited.

The suability of a State, without its consent, was a thing unknown to the law. This has been so often laid down and acknowledged by courts and jurists that it is bardly necessary to be formally asserted. It was fully shown by an exhaustive examination of the old law by Mr. Justice Iredell in his opinion in Chisholm v. Georgia; and it has been conceded in every case since, where the question has, in any way, been presented, even in the cases which have gone furthest in sustaining suits against the officers or agents of States. Osborn v. Bank, 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; Board, etc., v. McComb, 92 U. S. 531; United States v. Lee, 106 id. 196; Poindexter v. Greenhow, 109 id. 63; Virginia Coupon Cases, 114 id. 269. In all these cases the effort was to show, and the court held, that the suits were not against the State or the United States, but against the individuals; conceding that, if they had been against either the State or the United States, they could not be maintained. Mr. Webster stated the law with precision in his letter to Baring Bros. & Co. of October 16, 1839. Works, vol. 6, p. 537. "The security for State loans," he said, "is the plighted faith of the estate as a political community. It rests on the same basis as other contracts with established governments-the same basis, for example, as loans made by the United States under the authority of Congress; that is to say, the good faith of the government making the loan, and its ability to fulfill its engagements." In Briscoe v. Bank, 11 Pet. 257, 321, Mr. Justice McLean, delivering the opinion of the court, said: "What means of enforcing payment from the State had the holder of a bill of credit? It is said by the counsel for the plaintiff that he could have sued the State. But was a State liable to be sued? * * * No sovereign State is liable to be sued without her consent. Under the Articles of Confederation, a State could be sued only in cases of boundary. It is believed that there is no case where a suit has been brought, at any time, on bills of credit against a State; and it is certain that no suit could have been maintained, on this ground, prior to the Constitution." " It may be accepted as a point of departure unquestioned," said Mr. Justice Miller in Cunningham v. Railroad Co., 109 U. S. 446, 451, "that neither a State nor the United States can be sued as defendant in any court in this country without their consent, except in the limited class of cases in which a State may be made a party in the Supreme Court of the United States by virtue of the original jurisdiction conferred on this court by the Constitution."

Undoubtedly a State may be sued by its own consent, as was the case in Curran v. Arkansas, 15 How. 304, 309, and in Clark v. Burnard, 108 U. S. 436, 447. The suit in the former case was prosecuted by virtue of a State law which the Legislature passed in conformity to the Constitution of that State. But this court decided, in Beers v. Arkansas, 20 How. 527, that the State could repeal that law at any time; that it was not a contract within the terms of the Constitution prohibiting the passage of State laws impairing the obligation of a contract. In that case the law allowing the State to be sued was modified pending certain suits against the State on its bonds, so as to require the bonds to be filed in court, which was objected to as an unconstitutional change of the law. Chief Justice Taney, delivering the opinion of the court, said: "It is an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts, or in any other, with, out its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals or by another State. And, as this permission is altogether vol

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untary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it. * *The prior law was not a contract. It was an ordinary act of legislation, prescribing the conditions upon which the State consented to waive the privilege of sovereignty. It contained no stipulation that these regulations should not be modified afterward if, upon experience, it was found that further provisions were necessary to protect the public interest; and no such contract can be implied from the law, nor can this court inquire whether the law operated hardly or unjustly upon the parties whose suits were theu pending. That was a question for the consideration of the Legislature. They might have repealed the prior law altogether, and put an end to the jurisdiction of their courts in suits against the State, if they had thought proper to do so, or prescribe new conditions upon which the suits might still be allowed to proceed. In exercising this latter power the State violated no contract with the parties." The same doctrine was held in Railroad Co. v. Tennessee, 101 U. S. 337, 339; Railroad Co. v. Alabama, id. 832; and In re Ayers, 123 id. 443, 505.

But besides the presumption that no anomalous and unheard-of proceedings or suits were intended to be raised up by the Constitution-anomalous and unheard of when the Constitution was adopted-an additional reason why the jurisdiction claimed for the Circuit Court does not exist is the language of the act of Congress by which its jurisdiction is conferred. The words are these: "The Circuit Courts of the United States shall have original cognizance, concurrent with the courts of the several States, of all suits of a civil nature, at common law or in equity, * ** arising under the Constitution or laws of the United States or treaties," etc. "Concurrent with the courts of the several States." Does not this qualification show that Congress, in legislating to carry the Constitution into effect, did not intend to invest its courts with any new and strange jurisdictions? The State courts have no power to entertain suits by individuals against a State without its consent. Then how does the Circuit Court, having only concurrent jurisdiction, acquire any such power? It is true that the same qualification existed in the Judiciary Act of 1789, which was before the court in Chisholm v. Georgia, and the majority of the court did not think that it was sufficient to limit the jurisdiction of the Circuit Court. Justice Iredell thought differently. In view of the manner in which that decision was received by the country, the adoption of the eleventh amendment, the light of history, and the reason of the thing, we think we are at liberty to prefer Justice Iredell's views in this regard.

Some reliance is placed by the plaintiff upon the observations of Chief Justice Marshall in Cohens v. Virginia, 6 Wheat. 264, 410. The chief justice was there considering the power of review exercisable by this court over the judgments of a State court, wherein it might be necessary to make the State itself a defendant in error. He showed that this power was absolutely necessary in order to enable the judiciary of the United States to take cognizance of all cases arising under the Constitution and laws of the United States. He also showed that making a State a defendant in error was entirely different from suing a State in an original action in prosecution of a demand against it, and was not within the meaning of the eleventh amendment; that the prosecution of a writ of error against a State was not the prosecution of a suit in the sense of that amendment, which had reference to the prosecution by suit of claims against a State. "Where," said the chief justice, "a State obtains a judgment against an individual, and the court rendering such

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judgment overrules a defense set up under the Consti tution or laws of the United States, the transfer of this record into the Supreme Court, for the sole pur pose of inquiring whether the judgment violates the Constitution or laws of the United States, can, with no propriety, we think, be denominated a suit commenced or prosecuted against the State whose judgment is so far re-examined. Nothing is demanded from the State. No claim against it of any description is asserted or prosecuted. The party is not to be restored to the pos session of any thing. * *He only asserts the constitutional right to have his defense examined by that tribunal whose province it is to construe the Con stitution and laws of the Union. *** The point of view in which this writ of error, with its citation, has been considered uniformly in the courts of the Union, has been well illustrated by a reference to the course of this court in suits instituted by the United States. The universally received opinion is that no suit can be commenced or prosecuted against the United States; that the Judiciary Act does not authorize such suits. Yet writs of error, accompanied with citations, have uniformly issued for the removal of judg ments in favor of the United States into a superior court. *** It has never been suggested that such writ of error was a suit against the United States, and therefore not within the jurisdiction of the appellate court." After thus showing by incontestable argument that a writ of error to a judgment recovered by a State, in which the State is necessarily the defendant in error, is not a suit commenced or prosecuted against a State in the sense of the amendment, he added that, if the court were mistaken in this, its er ror did not affect that case, because the writ of error therein was not prosecuted by "a citizen of another State or "of any foreign State," and so was not affected by the amendment, but was governed by the general grant of judicial power, as extending "to all cases arising under the Constitution or laws of the United States, without respect to parties." Page 412. It must be conceded that the last observation of the chief justice does favor the argument of the plaintiff. But the observation was unnecessary to the decision, and in that sense extra-judicial, and, though made by one who seldom used words without due reflection, ought not to outweigh the important considerations referred to which lead to a different conclusion. With regard to the question then before the court, it may be observed that writs of error to judgments in favor of the crown, or of the State, had been known to the law from time immemorial, and had never been considered as exceptions to the rule that an action does not lie against the sovereign. To avoid misapprehension, it may be proper to add that, although the obligations of a State rest for their performance upon its honor and good faith, and cannot be made the subjects of judicial cognizance unless the State consents to be sued or comes itself into court, yet, where property or rights are enjoyed under a grant or contract made by a State, they cannot wantonly be invaded. While the State cannot be compelled by suit to perform its contracts, any attempt on its part to violate property or rights acquired under its contracts may be judicially resisted, and any law impairing the obligation of contracts under which such property or rights are held is void and powerless to affect their enjoyment. It is not necessary that we should enter upon an examination of the reason or expediency of the rule which exempts a sovereign State from prosecution in a court of justice at the suit of individuals. This is fully discussed by writ ers on public law. It is enough for us to declare its existence. The legislative department of a State represents its polity and its will, and is called upon by the highest demands of natural and political law to preserve justice and judgment, and to hold inviolate the public obligations. Any departure from this rule, ex

N. H. 609; Bell v. Gough, 23 N. J. Law, 624; Providence Steam-Engine Co. v. Providence & S. Steamship Co., 12 R. I. 348, 363. As the right of private use and enjoyment of the improved or reclaimed premises will continue so long, at least, as it does not interfere with the limited and defined public interests, it is obvious that, in general, it may continue forever.

This private right of use and enjoyment is not, we think, limited to purposes connected with the actual use of the navigable water, but may extend to any pur pose not inconsistent with the public right. Rippe v. Railroad Co., 23 Minn. 18; Brisbine v. Railroad Co., id. 114; Parker v. Packing Co., 17 Or. 510. As was said in Morrill v. Water-Power Co., 26 Minn. 222, 228, referring to the decision in Dutton v. Strong, 1 Black, 23: "The right to encroach upon the shallow water of the lake, by an exclusive appropriation even of the underlying soil, must rest upon the proposition that the riparian owner may make any use of the lake or river opposite his land not inconsistent with the public right." The following language of the Morrill Case, just cited, although used with reference to the riparian right to use the water of a navigable stream, is applicable here: "The limit to the private right is imposed by the public right, and the private right exists up to the point beyond which it would be inconsistent with the public right.' No one but the riparian proprietor has the right to improve or occupy such premises for private purposes, and it does not concern 'other persous how or for what particular purposes the reclaimed lands may be used, so long as there is no violation of the maxim, sic utere tuo ut alienum non lædas. It is for the interest of the State that such lands, not available for the public purposes for which alone the State exercises authority over them, shall be improved and used for profitable enterprises, rather than that they lie forever waste and unproductive. And the State, while recognizing the ancient riparian right of occupancy, has not assumed to prescribe, or to limit the purposes or manner of its enjoyment. That seems to have always been left to the discretion of the person in whom the right is exclusive, and the decided cases afford many illustrations of uses in no way connected with the purposes of navigation.

This right of the riparian proprietor, even before it has been in any manner exercised by reclaiming or improving the premises-the right itself to reclaim, improve or occupy is a property right, vested in him, recognized and protected in the law as property. He cannot be deprived of it without due process of law. It cannot be taken from him, and devoted to public use, without compensation. Brisbine v. Railroad Co., 23 Minn. 114; Carli v. Railway Co., 28 id. 373; Depot, etc., Co. v. Brunswick, 31 id. 297; Yates v. Milwaukee, 10 Wall. 497; Bell v. Gough, 23 N. J. Law, 624; Dela plaine v. Railway Co., 42 Wis. 214; Lyon v. Fishmong ers' Co., L. R., 1 App. 662. Such property is subject to the law of eminent domain. A railroad company, locating its line of road over such submerged lands, might acquire, by condemnation proceedings, and the payment of compensation, the necessary right of way, divesting the riparian owner of so much of his property. But cannot the riparian proprietor voluntarily convey, for an agreed compensation, what the company could thus take from him by legal proceedings in invitum? If he were to convey by deed the right to occupy exclusively for railroad purposes the premises in front of the riparian lands, would not the company acquire a right to occupy and enjoy the use of the premises, although it took no interest in the upland estate?

These peculiar property rights of the riparian owner may constitute, estimated in connection with the riparian land, the chief value of the premises. It may even be that the whole value of such real property consists in the right to improve and occupy the submerged

lands for private purposes. The extent of the riparian right in this respect is not measured by the value of the upland, nor by the distance to which the owner's estate may extend inlaud from the shore. The barest strip of upland, though wholly valueless and useless in itself, justifies the owner in the exercise and enjoy. ment of the privileges of riparian proprietorship to the fullest extent.

If it be true, as we have said, that the riparian proprietor may improve and occupy such premises in any manner not inconsistent with the public rights, it fol lows, that although the origin of this peculiar private right is referable to an adjacent riparian estate to which it was originally incident or appurtenant, still its nature and qualities are not in themselves such as to forbid its alienation, its separation from the riparian estate, and its enjoyment by others than the occupants of the upland. Its enjoyment need not be in aid of or associated with the use to which the upland is devoted or for the benefit of the upland as such. Thus it is supposed that one acquiring a mere right of way for the purpose of access over the upland to the shore may acquire the riparian owner's rights to improve and occupy the waste land beyond. Steamboat Co. v. Sargent, 50 Conn. 199. The upland may be used, and be useful, only for purposes to which the use of the adjacent submerged lands, even after reclamation, would be in no manuer accessory. The upland may be owned and used exclusively for the purposes of a residence, a church, a hospital, a bank, or for any purpose wholly unconnected with the advantages incident to the adjacency of navigable water, or of the intervening waste land; and yet the proprietor might undoubtedly erect a wharf or fill in solid earth, or allow others to use the wharf or reclaimed land. Nor would his right to allow others to use the wharf or made land, or the right of others to use it with his consent, depend upon there being also a license of access to such premises over the abutting upland. We suppose that the land-owner might grant to one having no riparian possession in the vicinity the right to use his wharf, or the improved or reclaimed shore-lands, for any purpose, whether connected with navigation or not, just as the owner himself might do. No individual whose rights were not prejudiced could complain; and so long as the public rights are not interfered with the State is not interested to oppose such use, but rather is interested to encourage and sanction it, without regard to the fact whether or not the use be associated with the use of the upland.

It has been suggested in some cases that even though such rights cannot be wholly disconnected from riparian lands, and be enjoyed in gross, yet if the person to whom the rights of the riparian proprietor have been relinquished has access to the premises, over the next adjacent estate abutting upon the shore, he may enjoy such rights, although he has no interest in the estate to which they were previously incident (see Steamboat Co. v. Sargent, 50 Coun. 199), and this is spoken of as being possible in Land Co. v. Emerson, 38 Minu. 406. But this would seem to be inconsistent with the doctrine that such rights are not severable from the riparian estate to which they are by nature appurtenant. The whole reason supporting that doctrine is the technical reason that the rights are merely incident aud appurtenant to the abutting riparian land. They were not originally incident to other estates than those adjacent to and in front of which only these privileges might be exercised. The owner of a riparian estate had no peculiar privileges in the submerged land lying in front of the next adjacent estate. If it be conceded that these rights may be separated from the apparent estate, and be enjoyed by the owner of the next estate abutting upon the shore, there is no room for further contention. If such separation is possible, it matters not whether the means of access