As regards controversies "between a State, . . . and foreign States, citizens, or subjects," it may be said that no such raits have ever been brought, and one can, therefore, only speculate as to the extent of federal judical power under this clause. We do know, however, by judicial determination, that neither a "Territory;"52 an Indian tribe;53 nor the District of Columbia54 is a "State" within the meaning of the word as used in this clause of the Constitution.

Whether or not, if a suit were brought by a foreign State, it would be entertained by the Supreme Court, is very doubtful. A foreign State could not, of course, be compelled to appear as a party defendant in such a suit, and reason would, therefore, seem to suggest that it should not be permitted to appear as a party plaintiff unless, of course, the defendant State should give its consent. Madison took this view. "I do not conceive," he said, "that any controversy can ever be decided in these courts between an American State and a foreign State, without the consent of the parties. If they consent, provision is here made." 55 Story, in his Commentaries, takes the same view.56 On the other hand, we have in the opinion of the Supreme Court rendered in the case of Hans v. Louisiana57 a dictum approving the dissenting opinion of Justice Iredell in Chisholm v. Georgia, according to which it was declared not to have been the intention of the framers of the Constitution to create any new remedies unknown to the law. From this it would follow that the Supreme Court could not take jurisdiction of a case between a foreign State and a State of the Union, even with the consent of both parties.58

52 Smith v. United States, 1 Wash. Ter. 269.

53 Cherokee Nation v. Georgia, 5 Pet. 1; 8 L. ed. 25.

54 Hepburn v. Ellzey, 2 Cr. 445; 2 L. ed. 332.

55 Elliot's Debates, II, 391..

56 § 1699.

57 134 U. S. 1; 10 Sup. Ct. Rep. 504; 33 L. ed. 842.

58 Upon this point see article by Carmen F. Randolph in Columbia Law Review, II (1902), p. 283, entitled "Notes on Suits Between States."