It has been stated in opinions of the Supreme Court that a state can be sued in a court of the United States by an individual if it waives its immunity and consents to be sued. But it is difficult to perceive how the consent or waiver of a state can, in any case and under any circumstances, confer upon the federal courts jurisdiction of a suit against it by a citizen of another state or a citizen or subject of a foreign state in the face of the imperative mandate of the amendment that "the judicial power of the United States shall _not be construed to extend_ to" any such suit. It is true that the court in the case of Clark _vs._ Barnard said that the immunity of a state from suit in a federal court was a personal privilege which it might waive at pleasure and that its appearance as a party defendant in a court of the United States would be a voluntary submission to its jurisdiction,[27] but in that case the state intervened as an actor and its intervention was such that it could be treated substantially as a plaintiff and the jurisdiction sustained on the ground that a state may sue an individual in a federal court. Although in the more recent case of Gunter _vs._ Atlantic Coast Line,[28] Mr. Justice White, delivering the opinion of the court, declared it to be an elementary proposition that a state could waive its immunity, it will be observed that in that case the suit was in fact against an officer of the state of South Carolina, and that the state itself was not a party to the record. It seems to me, with all deference, that the court has not yet squarely passed upon the point, nor, so far as I know, has it ever questioned the fundamental principle that a federal court cannot exercise jurisdiction in any case to which the judicial power of the United States, as delegated and defined in the Constitution, does not extend. An entirely different question is presented when we consider whether an officer of a state can consent or be authorized to consent to be sued in a federal court; in other words, whether he can waive the defense that the state is a necessary party to the suit. It does not follow that, because a state cannot be sued, it may not authorize its agent to defend on the merits without pleading the absence of the state as the real party in interest, and the denial of jurisdiction over the state as principal does not necessarily imply a denial of jurisdiction over the officer when doing or attempting to do an illegal act as its agent or representative. So, also, a different question is presented under the later amendments, which may be held to have qualified the eleventh amendment in authorizing Congress to enforce their provisions by appropriate legislation. As to that point I am not now prepared to express an opinion.