The Governor of Georgia v. Juan Mardazo/Opinion of the Court

THESE cases were brought before this Court, from the Circuit Court of the United States for the district of Georgia, under the following circumstances.

The schooner Isabelita, a Spanish vessel, owned by Juan Madrazo, a native Spanish subject, domiciliated at Havana, was despatched by him with a cargo, his own property, in the year 1812, on a voyage to the coast of Africa, where she took in a cargo of slaves. On her return voyage she was captured by a cruiser called the Successor, under the piratical flag of Commodore Aury; the said cruiser being then commanded by one Moore, an American citizen; and having been fitted out in the port of Baltimore, and manned and armed in the river Severn, within the waters and jurisdiction of the United States. The Isabelita and the slaves on board, were carried to Fernandina, in Amelia Island, and there condemned by a pretended Court of Admiralty, exercising jurisdiction under Commodore Aury; and sold, under its authority, by the prize agent, Louis Segallis, to one William Bowen. The negroes, so purchased by Bowen, were conveyed into the Creek nation, in consequence, as it was alleged, of the disturbed state of East Florida, the insecurity of property there, and with a view to their settlement in West Florida; then a province of the Spanish monarchy. Being found within the limits of the state of Georgia, they were seized by an officer of the customs of the United States, and delivered to an agent appointed by the governor of Georgia, under the authority of the Act of the Legislature of that state, passed in conformity to the provisions of the Act of Congress of March 1807, prohibiting the importation of slaves into the United States; the negroes having been so brought into the United States, in violation of that Act.

Some of the negroes were sold by an order of the governor, without any process of law, and the proceeds paid over to the treasurer of Georgia. The residue of the negroes are in possession of an agent, appointed by the governor of Georgia.

The Isabelita was fitted out as a cruiser at Fernandina; taken by Moore to Georgetown, South Carolina; seized there by the United States, sent round to Charleston; libelled in the District Court of South Carolina; and, by a decree of that Court, restored to Madrazo, the claimant.

The governor of Georgia filed an information in the District Court of the United States for the district of Georgia; praying that a part of these Africans, which remained specifically in his hands, might be declared forfeited, and may be sold.

A claim was given in, in this case, by William Bowen; Juan Madrazo, the libellant in the other case, did not claim.

The decree of the District Court dismissed the claim of William Bowen, and adjudged the negroes to be delivered to the governor of Georgia, to be disposed of according to law.

William Bowen appealed to the Circuit Court, by which Court his claim was dismissed; and from the decree of that Court, dismissing his claim, he has not appealed.

Juan Madrazo filed his libel in the District Court of Georgia, alleging, that a Spanish vessel called the Isabelita, having on board a cargo of negroes, was piratically captured on the high seas, carried into the port of Fernandian, there condemned by some pretended tribunal, and and sold;-that the negroes were conveyed, by the purchaser, into the Creek nation, where they were seized by an officer of the United States, and by him delivered to the government of the state of Georgia; pursuant to an Act of the General Assembly of the State of Georgia, carrying into effect an Act of Congress of the United States;-that a part of the said slaves were sold, as permitted by said Act of Congress, and as directed by said Act of the General Assembly of the said state, and the proceeds thereof deposited in the treasury of the said state;-that part of the said slaves remain undisposed of, under the control of the governor of the said state, or his agents; and prays restitution of said slaves and proceeds. Claims were given in by the governor of Georgia, and by William Bowen. The District Court dismissed the libel, and the claim of William Bowen. From this appeal, Juan Madrazo appealed to the Circuit Court.

The Circuit Court dismissed the libel and claim of the governor of Georgia, and directed restitution to the libellant; and from this decree, appeals have been taken by the state of Georgia, and by William Bowen. A warrant of arrest was issued by the District Court, but was never served. A monition also issued, and was served, on the governor and treasurer of the state of Georgia.

In the Circuit Court, the following proceedings took place: 'On motion of the proctors of the libellant, Madrazo, ordered, that he have leave to renew his warrant, for the property libelled; but it shall be held a sufficient execution of such warrant, if the governor, who appears as claimant, in behalf of the state, will sign an acknowledgment, that he holds the same subject to the jurisdiction of this Court.'

Whereupon the following instrument was filed, December 24th, 1823:--

Executive Department, Milledgeville, May 15th 1823.

The executive having been furnished by the deputy marshal with the copy of an order, passed by the Circuit Court of the United States, in relation to certain Africans, the title to which is a matter of controversy in said Circuit Court, and also in the Superior Court of the county of Baldwin, makes the following statement and acknowledgment, in satisfaction of said order and notice.

vs.

Sundry Africans.

Libel in admiralty, against sundry African negroes.

The governor of the state of Georgia acknowledges to hold sundry African negroes, now levied on, by virtue of sundry executions, by the sheriff of Baldwin county, subject to the order of the Circuit Court of the United States, for the district of Georgia; after the claim of said sheriff, or prior thereto, if the claim in the said Circuit Court shall be adjudged to have priority of the proceeding in the state Court.

JOHN CLARK, Governor.

Documentary evidence was introduced in the Court below, and witnesses were examined, which proved the interest of Madrazo in the Isabelita; the illegality of the capture and condemnation; and which were intended to prove the identity of the negroes, the subject of the proceedings, with those who had been on board the Isabelita.

On the part of Juan Madrazo, it was contended.--

1. That his proprietary interest in the slaves, and the illegality of the capture, and condemnation of the Isabelita and cargo, were fully proved, and that he is entitled to restitution of the property libelled.

2. That the Court below had jurisdiction.

3. That the possession of the property libelled, the service of the monition, and the order of the Circuit Court, and agreement of the governor of Georgia, filed in that Court, fix the parties in possession of the property for it; and that the process of the Court will operate on them individually; and not on the state of Georgia.

On the part of the state of Georgia, it was contended.--

1. That the Court below had no jurisdiction.

2. That there is no sufficient proof of proprietary interest, to entitle Juan Madrazo to restitution of the property libelled.

William Bowen was not represented by counsel, before the Court.

As the decision of the Court was exclusively on the question of jurisdiction, no other than the arguments of counsel on that question are given.

Mr. Berrien, on the part of the state of Georgia.--

1. The Circuit Court of the United States had no jurisdiction in the case, it involving jurisdiction over the state of Georgia.

Jurisdiction cannot be claimed on the ground of consent; it cannot be obtained by the voluntary appearance of the governor of Georgia to the libel of Madrazo, and he had no right to give jurisdiction. The exemption of a state from the jurisdiction of the Courts of the United States, is for the preservation of their sovereignty; it is an attribute of sovereignty, and it is no objection to the exception being taken, that the appearance was voluntary. The governor of Georgia could not yield up this attribute of the sovereignty of the state; his agency being limited by the Constitution. A party may object to the jurisdiction of the Court below, to try a cause which he himself instituted, Capron vs. Van Noorden, 2 Cranch, 126. This question is therefore to be considered as unaffected by the appearance of the governor of Georgia.

The 11th article of the amendments to the Constitution of the United States, takes away the jurisdiction of the Courts of the Union, in all cases in law and equity, in which claims are preferred against the separate states; and the amendment was intended to leave to the several states the adjustment of the claims of individuals upon them; Cohens vs. State of Virginia, 6 Wheat. 264. The judicial power of the Courts of the United States, is, by the amendment, prevented from extending to any suit, commenced or prosecuted, &c., against a state. 6 Wheat. 264. 407, 408.

The alteration in the Constitution was not made by revoking a power which the Courts possessed; but the amendment declares, that the judicial power shall not be construed to extend to suits, &c.; and it denies that such a power ever existed.

Why is not a suit in the admiralty a suit at law?

It proceeds according to the law of the country, and in the Courts of the country. The laws which govern and regulate he decisions of the Admiralty Courts, are the laws of the Union.

It is agreed, that, according to the doctrine in Fowler vs. Lindsey, 3 Dall. 411, the state must be either nominally, or substantially, a party to the suit. It is not enough, that the suit may, in its result, consequentially affect its interests.

The state of Georgia is a party in the proceedings of Madrazo; a citation is prayed to the state; and the property which the libellant seeks to obtain, by the decree of the District Court, is in the possession of the governor of Georgia, under the authority of a law of the state; another part is in the treasury of Georgia, and has become mingled with the general and public funds of the state. The process of the Court was served on the governor and treasurer of the state; and they are required to show cause, why restitution shall not be decreed. The law of the United States of 1807, prohibits the importation of slaves; and directs, that if slaves are brought in, they shall be seized, and delivered to the governor of the state in which the seizure is made. The governor of Georgia appointed an agent to receive them; and the libel states the slaves claimed, were delivered to the agent of the state. The right of the state of Georgia, acquired under that Act, is spread on the record by the libellant; and it is this right, so acquired, which he seeks to divest. The state of Georgia is, therefore, a party to this suit, because the res is in her possession; and the monition issued below, was served upon the governor and the treasurer of the state.

The jurisdiction is also denied, because a judgment of the Court would operate directly on the state of Georgia. Madrazo should look to the legislature of Georgia for redress; and the appeal to her justice, is not to be made through the Courts of the United States.

The terms of the amendment to the Constitution-its spirit, and the views heretofore taken of it, by this Court, are all opposed to the construction now claimed, which will except from the operation of the amendment, cases of admiralty jurisdiction. Proceedings in the admiralty, are suits at law. Does the admiralty proceed without law, according to the will of the Judge? The forms of its proceedings are according to the Civil Law;-the rights of the parties are decided according to the law of nations, and the law merchant; and both on its prize and instance side, according to the municipal laws of the country where it sits.

The objections made by the states to their liability, before the amendment to the Constitution, was not to the mode by which the suit was instituted; but to the fact of their being made answerable to the Courts of the Union.

To restrict the amendment to cases of Common Law and Equity, would not, therefore, have afforded an adequate remedy to the alleged grievance. Nor was the restriction established with a reservation as to claims, by foreigners; neither was it intended to leave uninfluenced by it, cases which might arise out of a state of war. Many of the suits which had been brought, and which might have been brought, before the amendments, were instituted by foreigners; or were of a nature to be prosecuted in the admiralty. The construction claimed by the opposite counsel, would exhibit the extraordinary fact, that while the amendment took away the jurisdiction of the Supreme Court in suits against states, it left it in the lowest Court under the Constitution.

Nor does the exemption of the states from suits in the admiralty, authorize apprehensions of internal difficulties. In cases of captures at war, on the high seas, by whatever ship of war or armed vessel, acting under the authority of the United States, the capture may be made, no right could be acquired by capture, to the property, by a state; the right to the property, is that of the sovereign who makes the war; and, but for the Prize Act, by which the property captured is condemned and distributed, it would remain the property of the sovereign. Cited, Osborne vs. The Bank of the United States, 9 Wheat. 157-8; likewise Cohens vs. The state of Virginia, 6 Wheat. 264.

But if the amendment to the Constitution does not extend to cases of admiralty jurisdiction; the jurisdiction of this case would be in the Supreme Court, and therefore, there is error in these proceedings.

2. The Court below, never had possession of the res, or any thing pertaining to it. The warrant of arrest issued in the District Court, was never served. The Court relying on the service of the monition, which was erroneous.

The res remained in the possession of the governor of Georgia, without any agreement for its production.

The proceedings in the District Court, not having been founded upon the res; and the service of the monition not having been legal; the Circuit Court could not have jurisdiction on the appeal. As an appellate Court, it could, by no proceeding, get possession of the res; and the case should have been remitted by the Circuit to the District Court.

The provisions of the Act of Congress of 1807, which apply to this case, were not repealed by the law of 1818.

The repeal applied to importations by sea, and these slaves were brought into Georgia by land.

Mr. Wilde, for Juan Madrazo, made these points.--

1. That the Court below had jurisdiction.

2. That the proprietary interest of Madrazo, in the Isabelita, and slaves, and the illegal outfit of the Successor, are sufficiently proved; and he is consequently entitled to restitution.

The original grant of jurisdiction, in such cases, to the Court of the United States, ample. 2d sect., 3d art. Cons. U.S. The admiralty jurisdiction is, 'of all cases of admiralty, a maritime jurisdiction,' generally, without restriction; whether they arise under the Constitution, laws, and treaties of the United States, or the law of nations.

The grant of common law and equity jurisdiction, is confined to cases arising under the constitutional laws and treaties of the Union. Before the amendent to the Constitution, the Courts of the United States must have taken cognizance of admiralty cases; although a state were directly interested, or even a party on the record.

Even since the amendment, there are cases in which it is presumed these Courts may take jurisdiction, although a state be a party. The second clause of the tenth section of the second article of the Constitution, prohibits the states from keeping troops, or ships of war, only in time of peace. In time of war, they may. During actual hostilities, there is nothing to prevent a state from fitting out a ship of war, or even a fleet, for defence, or annoyance; and the lawful prizes made by such a fleet, it is presumed, would be the property of the state-a state may exercise this power. Congress have the right to make rules concerning captures. Such rules are the supreme law. But if all captures, made by state cruisers, are to be tried in state tribunals, how long could the rules of Congress concerning captures be enforced; or the belligerent rights of the Union be exerted, without the violation of justice to neutral nations?

To the great powers of war and peace, must be attached those of making war efficient, and peace secure. Unjust judgments, unredressed, are among the causes of war. But if the state tribunals are to decide in the last resort, upon captures made by their own vessels, where neutral claimants are concerned; the whole may be involved in war, by the misconduct of a part.

This Court will not adopt such a construction of the amendment, unless it is forced upon them, by its terms.

The language must be clear, strong, and peremptory, which coerces its adoption.

The grant distinguishes between common law and equity jurisdiction, and admiralty jurisdiction. They are given by distinct clauses, and to a different extent; and are treated as separate powers. If they are so considered-if the three are separately granted, distinguishing each from the other, and two only are taken away; does not the third remain?

If the District Court were proceeding without jurisdiction, how has it happened, that a prohibition was not moved for? It would lie, in such a case. U. States vs. Peters. 3 Dall. 121; and an appeal might be taken on the decision. Cohen vs. Virginia, 6 Wheat. 397. The counsel referred to Publicus, No. 80, and to the debates of the conventions, on adopting the Constitution. But, supposing the amendment extends to, and excludes, admiralty, as well as equity and common law jurisdiction; is this a case, where the state is a party defendant on the record, or in which her rights are directly implicated; and the process of this Court must go against her? In form, the state is not a party-the information and claim, are by John Clark, Governor, in behalf, &c. The proceeding, if state interests are implicated, is not against a state, but by a state; the state, if a party at all, is the actor. In substance, it is a judicial proceeding, at the instance of a state; in which she seeks the aid of the United States' Courts, to give effect to a title claimed in her behalf, under the United States' Laws. In effect, the sentence and process of the Court, will operate not upon the state, but on individuals. Osborne vs. The Bank of the United States. 9 Wheat. 738, and the United States vs. Bright, 3 ''Am. Law Journal'', 216.

Has the state of Georgia really any interest in those Africans? The claim set up, is under the Act of Congress of 1807, prohibiting the slave trade; which places Africans illegally imported, at the disposition of the state into which they are brought; and the Act of Georgia of November 1817, ordering them to be sold, unless taken by the Colonization Society, and all expenses since capture and condemnation paid. Before any decree upon this information-before it was even filed, all that part of the Act of 1807, under which Georgia could derive any title, repealed. Act of 1818. ''Ing. Dig.''The title to property forfeited, or liable to forfeiture, is not divested, till it is libelled and condemned; and if there be an appeal, not until sentence of condemnation is rendered in the appellate tribunal. Yeaton vs. The United States. 5 Cr. 281-3.

If the statute creating the forfeiture, be repealed before final sentence, without reserving the right to punish cases arising under it, condemnation cannot take place, Schooner Rachael vs. The United States, 6 Cra. 329. The Irresistible, 6 Wheat. 551.

Until the condemnation, the state has no right to the Africans.

After condemnation, indeed, the importer's title is divested, by relation, back to the act of forfeiture. But until condemnation, his title is not divested.

The right of the state, depends upon the result of a judicial investigation; which, when a forfeiture is ascertained by final sentence, gives it relation back to the time of the act committed, the from that period divests the importer, and invests the state, with his title. But if pending the proceedings the Act is repealed, the judicial proceeding necessary to give effect to the claim of the state, can have but one result.

That claim must be rejected.

The proposition, that the Courts of the United States have not jurisdiction in such a case, then, comes to this;-an alleged right, in a state, though dependent upon the result of a judicial inquiry, may be set up, to preclude that inquiry, upon the result of which it depends. And that, even though the Court could look into the question, must determine that no right, in fact, exists.

Under this Act, there was no authority to sell the Africans before condemnation; and the money, if in the treasury, is there by the unauthorized act of an individual, and in violation of the law.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.--

Some time in the year 1817, Juan Madrazo, a Spaniard, residing in the Island of Cuba, engaged in the slave trade, fitted out a vessel for the coast of Africa, which procured a cargo of Africans; and on its return, in the autumn of 1817, was captured by a privateer sail, under the flag of one of the governments of Spanish America, and carried into Amelia Island; where the vessel and cargo were condemned by a tribunal, established by Aury, the authority of which has not been acknowledged in this country. The Africans were purchased by William Bowen, and were conducted into the Creek nation; within the limits of the state of Georgia, where they were seized by M'Queen M'Intosh, a revenue officer, at Darien, in Georgia, early in January 1818, under the Act of 1807; which prohibits the importation or bringing into the United States, of any negro, mulatto, or person of colour. This Act annuls the title of the importer, or any person, claiming under him, to such negro, mulatto, or person of colour, and declares that such persons 'shall remain subject to any regulation, not contravening the provisions of this Act, which the legislatures of the several states or territories, at any time hereafter, may make for disposing of such negro, mulatto, or person of colour.'

In December 1817, the legislature of Georgia passed an Act, which empowered the governor to appoint some fit and proper person to proceed to all such ports and places within this state, as have or may have, or may hereafter hold any negroes, mulattoes, or persons of colour, as have been, or may hereafter be seized or condemned under the above recited Act of Congress, and who may be subject to the control of this state; and the person so appointed shall have full power and authority to receive all such negroes, mulattoes, or persons of colour, and to convey the same to Milledgeville, and place them under the immediate control of the executive of this state.

The second section authorizes the governor to sell such negroes, mulattoes, or persons of colour, in such manner as he may think most advantageous to the state.

The third directs that they may be delivered up to the Colonization Society, on certain conditions therein expressed; provided the application be made before the sale.

Under this Act, the Africans brought in by William Bowen, were delivered up to the governor of Georgia, who sold the greater number of them, and paid the proceeds, amounting to 38,000 dollars, into the treasury of the state. The Colonization Society applied for those remaining unsold, amounting to rather more than twenty, and offered to comply with the conditions prescribed in the Act of December 1817.

In May, 1820, the governor of Georgia filed an information in the District Court of Georgia, stating the violation of the Act of Congress, that the Africans were placed under the immediate control of the executive of the state, where they awaited the decree of the Court. He states the application made on the part of the Colonization Society, with which he is desirous of complying, as soon as he shall be authorized to do so by the decree of the Court.

In November 1820, William Bowen filed his claim to the said Africans, alleging that they were his property-that they had not been brought into the United States in violation of the Act of Congress; but were seized while passing through the Creek nation, on their way to West Florida.

In February 1821, Juan Madrazo filed his libel, alleging that the Africans were his property-that on the return voyage from Africa, they were captured by the privateer Successor, commanded by an American, and fitted out in an American port-that the vessel and cargo were carried into Amelia Island, and condemned by an unauthorized tribunal; after which they were brought by the purchaser into the Creek nation, where they were seized by an officer of the United States-brought into the limits of the district of Georgia, and delivered over to the government of that state, in pursuance of an Act of the General Assembly, carrying into effect an Act of Congress, in that case made and provided. That a part of the slaves were sold, and the proceeds, amounting to 38,000 dollars, or more, paid into the treasury of the state; and that the residue, amounting to twenty-seven or thirty, remain under the control of the governor.

The libel denies that the laws of the United States have been violated, and prays that admiralty process may issue to take possession of the slaves remaining under the control of the governor of Georgia; and that the governor and all others concerned, should be cited to show cause why the said slaves should not be restored to Juan Madrazo, and the proceeds of those which had been sold, paid over to him.

Upon this libel a monition was issued to the governor of Georgia, who appeared and filed a claim on behalf of the state; in which he says, that the slaves were brought into the state, in violation of the Act of Congress, and that they were taken into the possession of the executive of the state, in pursuance of the Act of the state legislature, enacted to carry the Act of Congress into effect. That a number of the said slaves have been sold, and the proceeds paid into the treasury, where they have become a part of the funds of the state, not subject to his control, or to the control of the treasurer. That the residue of the said slaves, who remain unsold, have been demanded under the law, by the Colonization Society.

Process was also issued against the Africans, but was not executed. The two causes came on together, and the District Court dismissed the claim of Bowen, and also admissed the libel of Madrazo, and directed that the slaves remaining unsold should be delivered by the marshal to the governor of the state, and that the proceeds of those sold, should remain in the treasury.

Both Bowen and Madrazo appealed to the Circuit Court.

At the hearing in the Circuit Court, the sentence, dismissing the claim of Bowen, was affirmed. That dismissing the libel of Madrazo was reversed, and a decree was made, that the slaves remaining unsold, should be delivered to him; on his giving security to transport them out of the United States-and farther, that the proceeds of those which were sold, should be paid to him. From this decree, the governor of Georgia and William Bowen have appealed to this Court.

A question, preliminarily to the examination of the title to the Africans, which were the subject of these suits, and to the proceeds of those which were sold, has been made by the counsel for the state of Georgia. He contends, that this is essentially, and in form, a suit against the state of Georgia; and therefore was not cognizable in the District Court of the United States.

The process which issued from the Court of Admiralty not having been executed, the res was never in possession of that Court. The libel of Madrazo therefore, was not a proceeding against the thing, but a proceeding against the person for the thing. This appeal carried the cause into the Circuit Court, as it existed in the District Court, when the decree was pronounced. It was a libel, demanding, personally, from the governor of Georgia, the Africans remaining unsold, and the proceeds of those that were sold, which proceeds had been paid into the treasury.

Pending this appeal, the governor filed a paper in the nature of a stipulation, consenting to hold the Africans claimed by the libel of Madrazo, subject to the decree of the Circuit Court; if it should be determined that the claim in the Circuit Court had priority to sundry executions, levied on them by the sheriff of Baldwin county. Had this paper been filed in the District Court, it would have been a substitute for the Africans themselves, and would, according to the course of the admiralty, have enabled that Court to proceed in like manner as if its process had been served upon them. The libel would then have been in rem. Could this paper, when filed in the Circuit Court, produce the same effect on the cause?

We think it could not.

The paper in nature of a stipulation, is a mere substitute for the process of the Court; and cannot, we think, be resorted to, where the process itself could not be issued according to law. The process could not issue legally in this case, because it would be the exercise of original jurisdiction in admiralty; which the Circuit Court does not possess.

This cause therefore remained in its character a libel against the person of the governor of Georgia, for the Africans in his possession as governor, and for the proceeds, in the treasury, of those which had been sold. Could the District Court exercise jurisdiction in such a cause?

Previous to the adoption of the 11th amendment to the Constitution, it was determined that the judicial power of the United States, extended to a case in which a state was a party defendant. This principle was settled in the case of Chisholm vs. Georgia. 2 Dal. 419. In that case, the state appears to have been nominally a party on the record. In the case of Hollingsworth vs. Virginia, also, in 3 Dal. 378, the state was nominally a party on the record. In the case of Georgia vs. Brailsford, 2 Dal. 402, the bill was filed by his excellency Edward Telfair, Esq. Governor and Commander in Chief, in and over the state of Georgia, in behalf of the said state. No objection was made to the jurisdiction of the Court, and the case was considered as one in which the Supreme Court had original jurisdiction, because a state was a party. In the case of New York vs. Connecticut, 4 Dal. 3, both the states were nominally parties on the record. No question was raised in any of the cases respecting the style in which a state should sue or be sued; and the presumption is that the actions were admitted to be properly brought. In the case of Georgia vs. Brailsford, the action is not in the name of the state, but it is brought by its chief magistrate in behalf of the state. The bill itself avows, that the state is the actor, by its governor.

There is, however, no case in which a state has been sued without making it nominally a defendant.

Fowler et al. vs. Lindsey et al. 3 Dal. 411, was a case in which an attempt was made to restrain proceedings in a cause depending in a Circuit Court; on the allegation that a controversy respecting soil and jurisdiction of two states, had occurred in it.

The Court determined that a state, not being a party on the record, nor directly interested, the Circuit Court ought to proceed in it. In the United States vs. Peters, the Court laid down the principle, that although the claims of a state may be ultimately affected by the decision of a cause, yet if the state be not necessarily a defendant, the Courts of the United States are bound to exercise jurisdiction.

In the case of Osbourne vs. the Bank of the United States, 9 Wheat. 738, this question was brought more directly before the Court. It was argued with equal zeal and talent, and decided on great deliberation. In that case, the auditor and treasurer of the state were defendants, and the title of the state itself to the subject in contest was asserted. In that case, the Court said, '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.' The Court added, '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.'

The information of the governor of Georgia professes to be filed on behalf of the state, and is in the language of the bill, filed by the governor of Georgia on behalf of the state, against Brailsford.

If, therefore, the state was properly considered as a party in that case, it may be considered as a party in this.

The libel of Madrazo, alleges that the slaves which he claims, 'were delivered over to the government of the state of Georgia, pursuant to an Act of the General Assembly of the said state, carrying into effect an Act of Congress of the United States, in that case made and provided; a part of the said slaves sold, as permitted by said Act of Congress, and as directed by an Act of the General Assembly of the said state; and the proceeds paid into the treasury of the said state, amounting to thirty-eight thousand dollars, or more.'

The governor appears, and files a claim on behalf of the state, to the slaves remaining unsold, and to the proceeds of those which are sold. He states the slaves to be in possession of the executive, under the Act of the Legislature of Georgia, made to give effect to the Act of Congress on the subject of negroes, mulattoes or people of colour, brought illegally into the United State; and the proceeds of those unsold to have been paid in the treasury, and to be no longer under his control.

The case made, in both the libel and claim, exhibits a demand for money actually in the treasury of the state, mixed up with its general funds, and for slaves in possession of the government. It is not alleged, nor is it the fact, that this money has been brought into the treasury, or these Africans into the possession of the executive, by any violation of an Act of Congress. The possession has been acquired, by means which it was lawful to employ.

The claim upon the governor, is as a governor; he is sued, not by his name, but by his title. The demand made upon him, is not made personally, but officially.

The decree is pronounced not against the person, but the officer, and appeared to have been pronounced against the successor of the original defendant; as the appeal bond was executed by a different governor from him who filed the information. In such a case, where the chief magistrate of a state is sued, not by his name, but by his style of office, and the claim made upon him is entirely in his official character, we think the state itself may be considered as a party on the record. If the state is not a party, there is no party against whom a decree can be made. No person in his natural capacity is brought before the Court as defendant. This not being a proceeding against the thing, but against the person, a person capable of appearing as defendant, against whom a decree can be pronounced, must be a party to the cause before a decree can be regularly pronounced.

But were it to be admitted, that the governor could be considered as a defendant in his personal character, no case is made which justifies a decree against him personally. He has acted in obedience to a law of the state, made for the purpose of giving effect to an Act of Congress; and has done nothing in violation of any law of the United States.

The decree is not to be considered as made in a case in which the governor was a defendant, in his personal character; nor could a decree against him, in that character, be supported.

The decree cannot be sustained as against the state, because, if the 11th amendment to the Constitution, does not extend to proceedings in admiralty, it was a case for the original jurisdiction of the Supreme Court. It cannot be sustained as a suit, prosecuted not against the state but against the thing; because the thing was not in possession of the District Court.

We are therefore of opinion, that there is error in so much of the decree of the Circuit Court, as directs that the said slaves libelled by Juan Madrazo, and the issue of the females now in the custody of the government of the state of Georgia, or the agent or agents of the said state, be restored to the said Madrazo, as the legal proprietor thereof, and that the proceeds of those slaves, who were sold by order of the governor or the said state, be paid to the said Juan Madrazo; and that the same ought to be reversed; but that there is no error in so much of the said decree as dismisses the information of the governor of Georgia, and the claim of William Bowen.