Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/565

 CH. XXXVIII.] the persons really concerned in interest; but it has never been suspected, that, if the executor be a resident of another state, the jurisdiction of the federal courts could be ousted by the fact, that the creditors or legatees were citizens of the same state with the opposite party. The universally received construction in this case is, that jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record. Why is this construction universal? No case can be imagined, in which the existence of an interest out of the party on the record is more unequivocal, than in that, which has been just stated. Why, then, is it universally admitted, that this interest in no manner affects the jurisdiction of the court? The plain and obvious answer is, because the jurisdiction of the court depends, not upon this interest, but upon the actual party on the record. Were a state to be the sole legatee, it will not, we presume, be alleged, that the jurisdiction of the court, in a suit against the executor, would be more affected by this fact, than by the fact, that any other person, not suable in the courts of the Union, was the sole legatee. Yet, in such a case, the court would decide directly and immediately on the interest of the state.

"This principle might be further illustrated by showing, that jurisdiction, where it depends on the character of the party, is never conferred in consequence of the existence of an interest in a party not named; and by showing that, under the distributive clause of the 2d section of the 3d article, the Supreme Court could never take original jurisdiction, in consequence of an interest in a party not named in the record.

"But the principle seems too well established to require, that more time should be devoted to it. It may, we think, be laid down as a rule, which admits of no exception, that, in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the 11th amendment, which restrains the jurisdiction granted by the constitution over suits against states, is, of necessity, limited to those suits, in which a state is a party on the record. The amendment has its full effect, if the constitution be construed, as it would have been construed had the jurisdiction of the court never been extended to suits brought against a state, by the citizens of another state, or by aliens. The state not being a party on the record, and the court having jurisdiction over those, who are parties on the record, the true question is, not one of jurisdiction, but whether, in the exercise of its jurisdiction, the court ought to make a decree against the defendants; whether they are to be considered as having a real interest, or as being only nominal parties." § 1681. The reasoning, by which the general doctrine is maintained, is to the following effect. It is a sound principle, that, when a government becomes a partner in any trading company, it divests itself, so far