1792.
court. It is true, perhaps, as the counsel has suggested, that the defendant below pleaded the confiscation act of Georgia in bar to the action; but it is a sufficient answer to this argument, that the State was not a party; and no right can be defeated, in law, unless the party claiming it, has himself an opportunity to support it.
If the State of Georgia was entitled to the bond, she is equally entitled to the money levied by the marshall in satisfaction of the bond, or rather of the judgment rendered upon it: And as the execution directs the marshall to pay the amount to the plaintiffs below, I can perceive no other mode of preventing a compliance, while we enquire into the right of receiving the money, than that of issuing an injunction to stay it in the hands of the officer.
It appears to me to be too early, likewise, to pronounce an opinion upon the titles in collision; since it is enough, on a motion of this kind, to shew a colorable title. The State of Georgia has set up her confiscation act, which certainly is a fair foundation for future judicial investigation; and that an injury may not be done, which it may be out of our power to repair, the injunction ought, I think, to issue, till we are enabled, by a full enquiry, to decide upon the whole merits of the case.
Wilson, Justice.I confess, that I have not been able to form an opinion which is perfectly satisfactory to my own mind, upon the points that have been discussed. If Georgia has a right to the bond, it is strictly a legal right; but to enforce a strictly legal right, the present seems, at the first blush, to be an awkward and irregular proceeding. Again: Georgia had not a right, or she had a right, to be admitted to a hearing in the Circuit court: but, in the former case, it would be no ground of complaint, that her application was rejected; for, she is bound by the law; and in the other case, she would be entitled to bring the subject before us, as a court of law; since she was refused the exercise of a legal right.
It is true, that, under the Federal Constitution, an inferior tribunal cannot compel a State to appear as a party; but it is at very different proposition to say, that a State cannot, by her own consent, appear in any other court, than the Supreme court. The general rule applies among all sovereigns, who, as equals, are not amenable to courts of each other; and yet I remember an action was instituted and sustained, some years ago, in the name of Louis XVI. king of France, against Mr. Robert Morris, in the Supreme court of Pennsylvania.
Under these impressions, I am disposed to think, that the State of Georgia ought rather to have sued out a writ of error, than to have asked for an injunction: But still, in the existing
