As a conclusion from his argument in Osborn v. Bank of the United States, Marshall laid down the following rule: " It may, we think, be laid down as a rule that in all cases where jurisdiction depends on the party, it is the party named in the record. Consequently, the Eleventh 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 rule thus laid down has not been adhered to. Indeed it had almost immediately to be altered. In Governor of Georgia v. Madrazo32 it was held that the Eleventh Amendment forbade the prosecution of a suit for money actually in the treasury of the State and mixed with its general funds or property legally in the hands of the governor acting officially as its chief executive. " The claim upon the governor," said Marshall, " is as a governor; he is sued, not by his name, but by his title. The demand made upon him is not personally, but officially. ... 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." With a consequence, of course, that the jurisdiction of the court is ousted by the Eleventh Amendment.

32 1 Pet. 110; 7 L. ed. 73.

And thus from time to time the court has refused to follow Marshall's rule, and has now definitely abandoned it In Pen-noyer v. McConnaughy33 the court declare: " It is the settled doctrine of this court that the question whether a suit is within the prohibition of the Eleventh Amendment is not always determined by reference to the nominal parties on the record, as the court will look behind and through the nominal parties on the record to ascertain who are the real parties to the suit." 34