latterly been more liberally awarded than formerly. (7 Ves. Jun. 307.)

The bill contains charges of numeTous trespasses by entering upon the lands of the complainants and doing acts greatly to their injury and prejudice, and to the disturbance of the quiet enjoyment of their land, and threatening a total destruction of all their rights. And although it is not according to the course of chancery, to grant injunctions to prevent trespasses when there is a clear and adequate remedy at law, yet it will be done when the case is special and peculiar, and when no adequate remedy can be had at law, and particularly when the injury threatens irreparable ruin. (6 Ves. 147. 7 Eden, 307.) Every man is entitled to be protected in the possession and enjoyment of his property; and the ordinary remedy by action of trespass may generally be sufficient to afford such protection. But, where from the peculiar nature and circumstances of the case, this is not an adequate protection, it is a fit case to interpose the preventive process of injunction. This is the principle running through all the cases on this subject and is founded upon the most wise and just considerations; and this is peculiarly such a case. The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants. The mischief threatened is great and irreparable. (7 Johns, cha. 330.) It is one of the most beneficial powers of a court of equity to interpose and prevent an injury, before any has actually been suffered; and this is done by a bill, which is sometimes called a bill quia timet. (Mitford, 120.)

The doctrine of this court in the case of Osborne vs. The United States Bank, (9 Wheat. 338,) fully sustains the present application for an injunction. The bill in that case was filed to obtain an injunction against the auditor of the State of Ohio, to restrain him from executing a law of that State, which was alleged to be to the great injury of the bank, and to the destruction of rights conferred by their charter. The only question of doubt, entertained by the court in that case was, as to issuing an injunction against an officer of the State to restrain him from doing an official act enjoined by statute, the State not being made a party. But even this was not deemed sufficient to deny the injunction. The court considered that the Ohio law was made for the avowed purpose of expelling the bank from the

State, and depriving it of its chartered privileges: and they say, if the State could have been made a party defendant, it would scarcely be denied, that it would be a strong case for an injunction; that the application was not to interpose the writ of injunction, to protect the bank from a common and casual trespass of an individual, but from a total destruction of its franchise, of its chartered privileges, so far as respected the State of Ohio. In that case, the State could not be made a party, according to the eleventh amendment of the Constitution; the complainants being mere individuals and not a sovereign State. But, according to my view of the present case, the State of Georgia is properly made a party defendant; the complainants being a foreign State.

The laws of the State of Georgia in this case go as fully to the total destruction of the complainants' rights as did the law of Ohio to the destruction of the rights of the bank in that State; and an injunction is as fit and proper in this case to prevent the injury, as it was in that.

It forms no objection to the issuing of the injunction in this case, that the lands in question do not lie within the jurisdiction of this court. The writ does not operate in rem, but in personam. If the party is within the juris diction of the court, it is all that is necessary to give full effect and operation to the injunction; and it is immaterial where the subject matter of the suit, which is only affected consequentially, is situated. This principle is fully recognised by this court in the case of Massie vs. Watts, (6 Cranch, 157,) when this general rule is laid down, that in a case of fraud of trust or of contract, the jurisdiction of a Court of Chancery is sustainable, wherever the person may be found, although lands, not within the jurisdiction of the court, may be affected by the decree. And reference is made to several cases in the English Chancery recognising the same principle. In the case of Penn vs. Lord Baltimore, (1 Ves. 444,) a specific performance of a contract respecting lands lying in North America was decreed; the chancellor saying, the strict primary decree of a court of equity is in personam, and may be enforced in all cases when the person is within its jurisdiction.

Upon the whole, I am of opinion. 1. That the Cherokees compose a foreign state within the sense and meaning of the Constitution, and constitute a competent party to maintain a suit against the State of Geergia.

2. That the bill presents a case for judicial consideration, arising under the laws of the United States, and treaties made under their authority with the Cherokee nation, and which laws and treaties have been, and are threatened to be still further violated by the laws of the State of Georgia, referred to in this opinion.

3. That an injunction is a fit and proper writ to be issued, to prevent the further execution of such laws, and ought therefore to be awarded.

And I am authorised by my brother Story to say, that he concurs with me in this opinion.

MR WIRT, for the complainant, stated, that the subpoena had been regularly served upwards of two months, and there was no appearance on the part of the State of New York.

The seventeenth section of the Judiciary act of 1789, authorises the Court to make, and establish, all necessary rules for the conducting the business of the Courts of the United States. This Court has such a power, without the aid of that provision of the law.

The seventh rule of this Court, which was applicable to this matter, was made at August term, 1791. The Chief Justice, in answer to the motion of the Attorney General, informs him and the Bar, that this Court considers the practice of the Court of King's Bench and of Chancery, in England, as affording outlines for the practice of this Court; and that they will from time to time make such alterations therein, as circumstances may render necessary.' (1 Cond. Rep. 8.)

In 1796, the tenth rule was adopted. 'Ordered, that process of subpoena issuing out of this Court, in any suit in equity, shall be served on the defendant sixty days before the return day of the said process; and further, that if the defendant, on such service of the subpœna, should not appear at the return day contained therein, the complainant shall be at liberty to proceed ex parte.' Construing these two rules together, they bring us, in the case before the Court, to that part of the English practice, where the party may proceed to a hearing.

There is no necessity for those proceedings here, which are resorted to in England to compel an appearance. Nor would the practice in England be proper in the case before this Court. The object of the bill is to quiet a title it is a

bill of peace. Here the rule considers the party, when served with process, in the same situation as if he had appeared.

The question is, what is to be done when all the process to compel an ap pearance is exhausted: what is the next step? It is to take the bill pro confesso but in England, formerly, by a standing rule in Chancery, before this can be done, the party must have appeared. Afterwards, to prevent the process of the Court being eluded, the statute of 25 Geo. II. was enacted, by which it was provided, that if no appearance was entered by one who had absconded, the Court would make an order for an appearance, and if no appearance was entered, the bill should be taken pro confesso.

This statute regulated the practice in the Courts of Chancery of England, in 1791, when the seventh rule of this Court was adopted. But this statute applied only to the case of a party absconding, and it was only to force an appearance. In the present case, as has been observed, we stand as if all the proceedings for such a purpose had been exhausted.

Different practices prevail in relation to such a case in the several States of the Union. In New Jersey, the practice is to file the proofs in the cause, and proceed to a hearing. This is not the course which is pursued in Virginia. As to the practice in England, cited (2 Pr. Wm 556. Mosely, 386. Har. Chancery Practice, by Newland, 156. 1 Grant's Chancery Practice, 96.)

Something is now to be done in this case and it is for the Court to determine what that may be. If the Court desire it, it is fully competent to them to make any new rule relative to the future proceedings in the case.

In the Court of Chancery in England, the party could take a decree, pro con

fesso, and consider it as final. But this is not the wish of the complainant. It is desired that the proceedings should be carried on with the utmost respect to the other party; and the wish of the State of New Jersey is, to have an examination of the case, and a final decree after such an examination.

It is, therefore, proposed, that the Court direct a rule to be entered that the bill be taken, pro confesso, unless the party against whom it is filed appear and answer before the rule's day in August next; and if they do not, that the cause be set down for a final hearing at the next term of this Court, on such proofs as the complainants may exhibit.

Mr Justice Baldwin suggested, that it might be proper, to argue certain questions arising in this case, in open Court: such as, What was the proper duty of the Court in the case? What was the practice in England? And whether this Court had power to proceed in suits between States, without an act of Congress having directed the mode of proceeding? He did not propose this as a matter personal to himself; but as a member of the Court.

Mr Wirt said, that the jurisdiction which was to be exercised was given by the Constitution, and the seventeenth section of the act of Congress authorised the Court to establish such rules as to the manner in which the power should be executed. There are cases in which the Court have taken this jurisdiction. The case of Chisholm vs. the State of Georgia, (2 Dall. Rep. 219. 2 Condens. Rep. 635. Grayson vs. the State of Virginia, 3 Dall. Rep. 330. 1 Condens. Rep. 141.)

When the subpoena was asked for at last term of this Court, (3 Peters, 461,) the case of Chisholm vs. the State of Georgia, was then particularly referred to: and it was considered, that although the amendment to the Constitution has taken away the jurisdiction of this Court in suits brought by individuals against a State, it has left its jurisdiction in suits between States, in the situation in which it stood originally. The Court, in awarding the process of subpoena, had reference to these cases.

If an elaborate argument of the questions which the case presents, is desired, time is asked to prepare for it; and sufficient time to give notice to the At torney General of the State of New Jersey to attend and assist in the argument.

Mr Chief Justice Marshall delivered the opinion of the Court.

This is a bill filed by the State of New Jersey, against the State of New York, for the purpose of ascertaining and settling the boundary between the two States.

6

The Constitution of the United States declares, the Judicial power shall extend to controversies between two or more States.' It also declares that 'In all cases affecting ambassadors, other public ministers and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction.'

Congress has passed no act for the special purpose of prescribing the mode of proceeding in suits instituted against a State, or in any suit in which the Supreme Court is to exercise the original jurisdiction, conferred by the Constitution.

The act to establish the Judicial Courts of the United States,' section thirteen, enacts That the Supreme Court shall have exclusive jurisdiction of all controversies of a civil nature, where a State is a party, except between a State and its citizens; and except also between a State and citizens of other States or aliens; in which latter case, it shall have original but not exclusive jurisdiction.' It also enacts, section fourteen, That all beforementioned Courts of the United States shall have power to issue writs of scire facias, habeas corpus, and all other writs not specially provided by statute, which may be necessary for the exercise of their respective jurisdictions, and agreeable to the principles and usages of law.' By the seventeenth section it is enacted, 'That all the said Courts of the United States shall have power' 'to make and establish all necessary rules for the ordinary conducting business in said Courts, provided such rules are not repugnant to the laws of the United States.'

'An act to regulate processes in the Courts of the United States,' was passed at the same session with the Judicial act, and was depending before Congress at the same time. It enacts That all writs and processes issuing from a Supreme or a Circuit Court shall bear teste, &c.

This act was rendered perpetual in 1792. The first section of the act of 1792 repeals the provision respecting writs and processes issuing from the Supreme or a Circuit Court. The second continues the form of writs &c. and the forms and modes of proceeding in suits at common law prescribed in the origin

al act, and' in those of equity, and in those of admiralty and maritime juris diction according to the principles, rules, and usages, which belong to Courts of equity and to Courts of admiralty respectively, as contra-distinguished from Courts of common law, except so far as may have been provided by the act to establish the Judicial Courts of the United States; subject, however, to such alterations and additions as the

said Courts respectively shall, in their discretion, deem expedient, or to such regulations as the Supreme Court of the United States shall think proper from time to time, by rule, to prescribe to any Circuit or District Court concerning the

same.

At a very early period in our judicial history, suits were instituted in this Court against States, and the questions concerning its jurisdiction and mode of proceeding were necessarily considered. So early as August, 1792, an injunction was awarded at the prayer of the State of Georgia, to stay a sum of money recovered by Brailsford, a British subject, which was claimed by Georgia under the acts of confiscation. This was an exercise of the original jurisdiction of the Court, and no doubt of its propriety was expressed.

In February, 1793, the case of Oswald vs. the State of New York, came on. This was a suit at common law. The State not appearing on the return of the process, proclamation was made, and the following order entered by the Court:Unless the State appear by the first day of the next term, or show cause to the contrary, judgment will be entered by default against the said State.'

'that unless the said State shall, either in due form appear, or show cause to the contrary, in this Court, by the first day of the next term, judgment by default shall be entered against the said State.' In February term, 1794, judgment was rendered for the plaintiff, and a writ of inquiry was awarded, but the eleventh amendment to the Constitution prevented its execution.*

Grayson vs. the State of Virginia, (3 Dallas, 320, 1 Peter's Cond. Reports, 141,) was a bill in equity. The subpœna having been returned executed, the plaintiff moved for a distringas, to compel the appearance of the State. The Court postponed its decision on the motion, in consequence of a doubt, whether the remedy to compel the appearance of the State, should be furnished by the Court itself, or by the Legislature. At a subsequent term, the Court, after a particular examination of its powers, determined, that though the general rule prescribed the adoption of that practice, which is founded on the custom and usage of Courts of admiralty and equity,' still it was thought that we are also authorised to make such deviations as are necessary to adapt the process and rules of the Court to the peculiar circumstances of this country, subject to the interposition, alteration, and control of the Legislature. We have, therefore, agreed to make the following general orders:

1st. Ordered, That when process at common law or equity shall issue against a State, the same shall be served upon the Governor, or Chief Executive Magistrate, and the Attorney General of such State.

2d. Ordered, That process of subpœna, issuing out of this Court, in any suit in equity, shall be served on the defendant, sixty days before the return day of the said process; and further, that if the defendant, on such service of the subpoena, shall not appear at the return day, contained therein, the complainant shall be at liberty to proceed exparte.

In Hugeral vs. the State of South

* The amendment referred to, provided that the judicial power of the United States should not extend to suits against a State, by citizens of another State, or by citizens or subjects of a foreign State; thus leaving controversies between two or more States,' as the Constitution had placed them, subject to the original jurisdiction of the Supreme Court.