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This language, it may be observed, was quoted with approval in U.S. v. Lee. The principle which it enunciates.constitutes the very foundation upon which the decision in that case rested.

In the discussion of such questions, the distinction between the government of a state and the state itself is important, and should be observed. In common speech and common apprehension they are usually regarded as identical; and as ordinarily the acts of the government are the acts of the state, because within the limits of its delegation of power, the government of the state is generally confounded with the state itself, and often the former is meant when the latter is mentioned. The state itself is an ideal person, intangible, invisible, immutable. The government is an agent, and, within the sphere of the agency, a perfect representative; but outside of that, it is a lawless usurpation. The constitution of the state is the limit of the authority of its government, and both government and state are subject to the supremacy of the constitution of the United States, and of the laws made in pursuance thereof. So that, while it is true in respect to the government of a state, as was said in Langford v. U. S. 101 U. S. 341, that the maxim, that the king can do no wrong, has no place in our system of government; yet it is also true, in respect to the state itself, that whatever wrong is attempted in its name is imputable to its government, and not to the state, for, as it can speak and act only by law, whatever it does say and do must be lawful. That which, therefore, is unlawful because made so by the supreme law, the constitution of the United States, is not the word or deed of the state, but is the mere wrong and trespass of those individual persons who falsely speak and act in its name. It was upon the ground of this important distinction that this court proceeded in the case of Texas v. White, 7 Wall. 700, when it adjudged that the acts of secession, which constituted the civil war of 1861, were the unlawful acts of usurping state governments, and not the acts of the states themselves, inasmuch as "the constitution, in all its provisions, looks to an indestructible Union, composed of indestructible states;" and that, consequently, the war itself was not a war between the states, nor a war of the United States against states, but a war of the United States against unlawful and usurping governments, representing not the states, but a rebellion against the United States. This is, in substance, what was said by Chief Justice CHASE, delivering the opinion of the court in Thorington v. Smith, 8 Wall. 1, 9, when he declared, speaking of the confederate government, that "it was regarded as simply the military representative of the insurrection against the authority of the United States." The same distinction was declared and enforced in Williams v. Bruffy, 96 U. S. 176, 192, and in Horn v. Lockhart, 17 Wall. 570, both of which were referred to and approved in Keith v. Clark, 97 U. S. 454, 465.

This distinction is essential to the idea of constitutional government. To deny it or blot it out obliterates the line of demarcation that separates constitutional government from absolutism, free self-government based on the sovereignty of the people from that despotism, whether of the one or the many, which enables the agent of the state to declare and decree that he is the state; to say "L'Etat, c'est moi." Of what avail are written constitutions, whose bills of right, for the security of individual liberty, have been written too often with the blood of martyrs shed upon the battle-field and the scaffold, if their limitations and restraints upon power may be overpassed with impunity by the very agencies created and appointed to guard, defend, and enforce them; and that, too, with the sacred authority of law, not only compelling obedience, but entitled to respect? And how else can these principles of individual liberty and right be maintained, if, when violated, the judicial tribunals are forbidden to visit penalties upon individual offenders, who are the instruments of wrong, whenever they interpose the shield of the state? The doctrine is not to be tolerated. The whole frame and scheme of

the political institutions of this country, state and federal, protest against it. Their continued existence is not compatible with it. It is the doctrine of absolutism, pure, simple, and naked, and of communism which is its twin, the double progeny of the same evil birth.

It was said by Chief Justice CHASE, speaking for the whole court in Lane) Co. v. Oregon, 7 Wall. 71, 76, that the people, through the constitution of the United States, "established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the confederate government, which acted with powers, greatly restricted, only upon the states. In no other way can the supremacy of that constitution be maintained. It creates a government in fact as well as in name, because its constitution is the supreme law of the land, "anything in the constitution or laws of any state to the contrary notwithstanding;" and its authority is enforced by its power to regulate and govern the conduct of individuals, even where its prohibitions are laid only upon the states themselves. The mandate of the state affords no justification for the invasion of rights secured by the constitution of the United States; otherwise, that constitution would not be the supreme law of the land. When, therefore, an individual defendant pleads a statute of a state, which is in violation of the constitution of the United States, as his authority for taking or holding property, to which the citizen asserts title, and for the protection or possession of which he appeals to the courts, to say that the judicial enforcement of the supreme law of the land, as between the individual parties, is to coerce the state, ignores the fundamental principles on which the constitution rests, as contrasted with the articles of confederation, which it displaced, and practically makes the statutes of the states the supreme law of the land within their respective limits.

When, therefore, by the act of March 30, 1871, the contract was made, by which it was agreed that the coupons issued under that act should thereafter be receivable in payment of taxes, it was the contract of the state of Virginia, because, though made by the agency of the government, for the time being, of the state, that government was acting within the scope of its authority, and spoke with its voice as its true representative; and inasmuch as, by the constitution of the United States, which is also the supreme law of Virginia, that contract, when made, became thereby unchangeable and irrepealable by the state, the subsequent act of January 26, 1882, and all other like acts, which deny the obligation of that contract and forbid its performance, are not the acts of the state of Virginia. The true and real commonwealth which contracted the obligation is incapable in law of doing anything in derogation of it. Whatever having that effect, if operative, has been attempted or done, is the work of its government acting without authority, in violation of its fundamental law, and must be looked upon, in all courts of justice, as if it were not and never had been. The argument, therefore, which seeks to defeat the present action, for the reason that it is a suit against the state of Virginia, because the nominal defendant is merely its officer and agent, acting in its behalf, in its name, and for its interest, and amenable only to it, falls to the ground, because its chief postulate fails. The state of Virginia has done none of these things with which this defense charges her. The defendant in error is not her officer, her agent, or her representative, in the matter complained of; for he has acted not only without her authority, but contrary to her express commands. The plaintiff in error, in fact and in law, is representing her as he seeks to establish her law, and vindicates her integrity as he maintains his own right.

Tried by every test which has been judicially suggested for the determination of the question, this cannot be considered to be a suit against the state. The state is not named as a party in the record; the action is not directly upon the contract; it is not for the purpose of controlling the discretion of

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executive officers, or administering funds actually in the public treasury, as was held to be the case in Louisiana v. Jumel, 107 U. S. 711; S. C. 2 SUP. CT. REP. 128; it is not an attempt to compel officers of the state to do the acts which constitute a performance of its contract by the state, as suggested by a minority of the court in Antoni v. Greenhow, 107 U. S. 769, 783; S. C. 2 SUP. CT. REP. 91; nor is it a case where the state is a necessary party, that the defendant may be protected from liability to it, after having answered to the present plaintiff. For, on this supposition, if the accounting officers of the state government refuse to credit the tax collector with coupons received by him in payment of taxes, or seek to hold him responsible for a failure to execute the void statute, which required him to refuse coupons in payment of taxes, in any action or prosecution brought against him in the name of the state, the grounds of the judgment rendered in favor of the present plaintiff will constitute his perfect defense. And as that defense, made in any cause, though brought in a state court, would present a question arising under the constitution and laws of the United States, it would be within the jurisdiction of this court to give it effect, upon a writ of error, without regard to the amount or value in dispute.

In the case of Osborn v. Bank of U. S. 9 Wheat. 738, 853, Chief Justice MARSHALL put, by way of argument and illustration, the very case we are now considering. He said: "Controversies respecting boundary have lately existed between Virginia and Tennessee, between Kentucky and Tennessee, and now exist between New York and New Jersey. Suppose, while such a controversy is pending, the collecting officer of one state should seize property for taxes belonging to a man who supposes himself to reside in the other state, and who seeks redress in the federal court of that state in which the officer resides. The interest of the state is obvious. Yet it is admitted that in such a case the action would lie, because the officer might be treated as a trespasser, and the verdict and judgment against him would not act directly on the property of the state. That it would not so act, may, perhaps, depend on circumstances. The officer may retain the amount of the taxes in his hands, and, on the proceedings of the state against him, may plead in bar the judgment of a court of competent jurisdiction. If this plea ought to be sustained, and it is far from being certain that it ought not, the judgment so pleaded would have acted directly on the revenue of the state in the hands of its officers. And yet the argument admits that the action, in such a case, would be sustained. But suppose, in such a case, the party conceiving himself to be injured, instead of bringing an action sounding in damages, should sue for the specific thing, while yet in possession of the seizing officer. It being admitted, in argument, that the action sounding in damages would lie, we are unable to perceive the line of distinction between that and the action of detinue. Yet the latter action would claim the specific article seized for the tax, and would obtain it, should the seizure be deemed unlawful."

Although the plaintiff below was nominally the actor, the action itself is purely defensive. Its object is merely to resist an attempted wrong, and to restore the status in quo as it was when the right to be vindicated was invaded. In this respect, it is upon the same footing with the preventive remedy of injunction in equity, when that jurisdiction is invoked, and of which a conspicuous example, constantly followed in the courts of the United States, was the case of Osborn v. Bank of U. S., ubi supra. In that case the taxing power of the state was resisted on the ground that its exercise threatened to deprive the complainant of a right conferred by the constitution of the United States. The jurisdiction has been constantly exerted by the courts of the United States to prevent the illegal taxation of national banks by the officers of the states. And in Cummings v. National Bank, 101 U. S. 153, 157, it was laid down as a general principle of equity jurisdiction "that when a rule or system of valuation is adopted by those whose duty it is to make the assess

ment, which is designed to operate unequally and to violate a fundamental principle of the constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, equity may properly interfere to restrain the operation of this unconstitutional exercise of power." And it is no objection to the remedy in such cases that the statute, whose application in the particular case is sought to be restrained is not void on its face, but is complained of only because its operation in the particular instance works a violation of a constitutional right; for the cases are numerous where the tax laws of a state, which in their general and proper application are perfectly valid, have been held to become void in particular cases, either as unconstitutional regulations of commerce, or as violations of contracts prohibited by the constitution, or because in some other way they operate to deprive the party complaining of a right secured to him by the constitution of the United States. At the present term of this court, at least three cases have been decided, in which railroad companies have been complainants in equity, seeking to restrain officers of states from collecting taxes, on the ground of an exemption by contract, and no question of jurisdiction has been raised. The practice has become common, and is well settled on incontestable principles of equity procedure. Memphis R. R. v. Railroad Com'rs, 112 U. S. 609; S. C. ante, 299; St. Louis, etc., Ry. Co. v. Berry, 113 U. S. 465; S. C. ante, 529; Chesapeake & O. R. R. Co. v. Miller, 114 U. S. —; S. C. ante, 813.

It is still urged upon us, however, in argument, that, notwithstanding all that has been or can be said, it still remains that the controversy disclosed by the record is between an individual and the state; that the state alone has any real interest in its determination; that the practical effect of such determination is to control the action of the state in the regular and orderly administration of its public affairs; and that, therefore, the suit is and must be regarded as a suit against the state, within the prohibition of the eleventh amendment to the constitution. Omitting for the time being the consideration already enforced, of the fallacy that lies at the bottom of this objection, arising from the distinction to be kept in view between the government of a state and the state itself, the premises which it assumes may all be admitted, but the conclusion would not follow. The same argument was employed in the name of the United States in the Lee Case, and did not prevail. It was pressed with the greatest force of which it was susceptible in the case of Osborn v. Bank of U. S., and was met and overcome by the masterly reasoning of Chief Justice MARSHALL. It appeared early in the history of this court, in 1799, in the case of Fowler v. Lindsey, 3 Dall. 411, in which that able magistrate, Mr. Justice WASHINGTON, pronounced his first reported opinion. On a motion to remove the cause by certiorari from the circuit court, on the ground that it was a suit in which a state was a party, it being an ejectment for lands, the title to which was claimed under grants from different states, he said: "A case which belongs to the jurisdiction of the supreme court on account of the interest that a state has in the controversy must be a case ing which a state is either nominally or substantially the party. It is not sufficient* that a state may be consequentially affected, for in such case (as where the grants of different states are brought into litigation) the circuit court has clearly a jurisdiction. And this remark furnishes an answer to the suggestions that have been founded on the remote interest of the state in making retribution to her grantees upon the event of an eviction."

The thing prohibited by the eleventh amendment is the exercise of jurisdiction in a "suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state." Nothing else is touched; and suits between individuals, un less the state is the party, in a substantial sense, are left untouched, no matter how much their determination may incidentally and consequentially affect

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the interests of a state, or the operations of its government. The fancied inconvenience of an interference with the collection of its taxes by the government of Virginia, by suits against its tax collectors, vanishes at once upon the suggestion that such interference is not possible, except when that government seeks to enforce the collection of its taxes contrary to the law and contract of the state, and in violation of the constitution of the United States. The immunity from suit by the state, now invoked, vainly, to protect the individual wrong-doers, finds no warrant in the eleventh amendment to the constitution, and is, in fact, a protest against the enforcement of that other provision which forbids any state from passing laws impairing the obligation of contracts. To accomplish that result requires a new amendment, which would not forbid any state from passing laws impairing the obligation of its own contracts.

What we are asked to do is, in effect, to overrule the doctrine in Fletcher v. Peck, 6 Cranch, 87, and hold that a state is not under a constitutional obligation to perform its contracts, for it is equivalent to that to say that it is not subject to the consequences when that constitutional prohibition is applied to suits between individuals. We could not stop there. We should be required to go still further, and reverse the doctrine on which that constitutional provision rests, stated by Chief Justice*MARSHALL in that case, when he said: "When, then, a law is in its nature a contract, when absolute rights have vested under that contract, a repeal of the law cannot divest those rights; and the act of annulling them, if legitimate, is rendered so by a power applicable to the case of every individual in the community. It may well be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and, if any be prescribed, where are they to be found if the property of an individual, fairly and honestly acquired, may be seized without compensation? To the legislature all legislative power is granted; but the question, whether the act of transferring the property of an individual to the public be in the nature of legislative power, is well worthy of serious reflection." And in view of such a contention, we may well add the impressive and weighty words of the same illustrious man, when he said, in Marbury v. Madison, 1 Cranch, 137: "The government of the United States has been emphatically termed a government of laws and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right."

It is contended, however, in behalf of the defendant in error, that the act of January 26, 1882, under which he justified his refusal of the tender of coupons, does not impair the obligation of the contract between the couponholder and the state of Virginia, inasmuch as it secures to him a remedy equal in legal value to all that it takes away, and that, consequently, as the state may lawfully legislate by changing remedies so that it does not destroy rights, the remedy thus provided is exclusive, and must defeat the plaintiff's action. The remedy thus substituted and declared exclusive is one that requires the tax-payer demanding to have coupons received in payment of taxes, first, to pay the taxes due from him in money, under protest, when, within thirty days thereafter, he may sue the officer to recover back the amount paid, which, on obtaining judgment therefor, shall be refunded by the auditor of public accounts out of the treasury. By the amendment passed March 13, 1884, the coupons tendered are required to be sealed up and marked for identification, filed with the petition at the commencement of the suit, produced on the trial as evidence of the tender, and delivered to the auditor of public accounts, to be canceled when he issues his warrant for the amount of the judgment.

It is contended that, in view of this remedy, the case is ruled by the decision of this court in Antoni v. Greenhow, 107 U. S. 769; S. C. 2 SUP. CT. REP. 91. We have, however, already shown, by extracts from the opinion of the court in that case, that the question involved in the present proceeding was