signed to circulate as money." And again, page 318: "To constitute a bill of credit, within the constitution, it must be issued by a state, on the faith of the state, and be designed to circulate as money. It must be a paper which circulates on the credit of the state, and is so received and used in the ordinary business of life." The definition was repeated in Darrington v. Bank of Alabama, 13 How. 12.

It is very plain to us that the coupons in question are not embraced within these terms. They are not bills of credit in the sense of this constitutional prohibition. They are issued by the state, it is true. They are promises to pay money. Their payment and redemption are based on the credit of the state, but they were not emitted by the state in the sense in which a government emits its treasury notes, or a bank its bank-notes-a circulating medium or paper currency-as a substitute for money. And there is nothing on the face of the instruments, nor in their form or nature, nor in the terms of the law which authorize their issue, nor in the circumstances of their creation or use, as shown by the record, on which to found an inference that these coupons were designed to circulate in the common transactions of business, as money, nor that in fact they were so used. The only feature relied on to, show such a design or to prove such a use is that they are made receivable in 2 payment of taxes and other dues to the state. From this, it is argued that they would obtain such a circulation from hand to hand as money as the demand for them, based upon such a quality, would naturally give. But this falls far short of their fitness for general circulation in the community, as a representative and substitute for money, in the common transactions of business, which is necessary to bring them within the constitutional prohibition against bills of credit. The notes of the bank of the state of Arkansas, which were the subject of controversy in Woodruff v. Trapnall, 10 How. 190, were, by law, receivable by the state in payment of all dues to it, and this circumstance was not supposed to make them bills of credit. It is true, however, that in that case it was held they were not so because they were not issued by the state and in its name, although the entire stock of the bank was owned by the state, which furnished the whole capital, and was entitled to all the profits. In this case the coupons were issued by the state of Virginia and in its name, and were obligations based on its credit, and which it had agreed, as one mode of redemption, to receive in payment of all dues to itself in the hands of any holder; but they were not issued as and for money, nor was this quality impressed upon them to fit them for use as money, or with the design to facilitate their circulation as such. It was conferred, as is apparent from all the circumstances of their creation and issue, merely as an assurance, by way of contract with the holder, of the certainty of their due redemption in the ordinary transactions between the state treasury and the tax-payers. They do not become receivable in payment of taxes till they are due, and the design, we are bound to presume, was that they would be paid at maturity. This necessarily excludes the idea that they were intended for circulation at all. It is next objected that the suit of the plaintiff below could not be maintained, because it is substantially an action against the state of Virginia, to which it has not assented. It is said that the tax collector who is sued, was an officer and agent of the state, engaged in collecting its revenue under a valid law, and that the tax he sought to collect from the plaintiff was law-, fully due; that, consequently, he was guilty of no personal wrong, but acted only in an official capacity representing the state, and, in refusing to receive the coupons tendered, simply obeyed the commands of his principal whom he was lawfully bound to obey; and that if any wrong has been done, it has been done by the state in refusing to perform its contract, and for that wrong the state is alone liable, but is exempted from suit by the eleventh article of amendment to the constitution of the United States, which declares that "the judicial power of the United States shall not be construed to extend to any

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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."

This immunity from suit secured to the states, is undoubtedly a part of the constitution of equal authority with every other, but no greater, and to be construed and applied in harmony with all the provisions of that instrument. That immunity, however, does not exempt the state from the operation of the constitutional provision that no state shall pass any law impairing the obligation of contracts; for it has long been settled that contracts between a state and an individual are as fully protected by the constitution as contracts between two individuals. It is true that no remedy for a breach of its contract by a state, by way of damages as compensation, or by means of process to compel its performance, is open under the constitution in the courts of the United States by a direct suit against the state itself, on the part of the injured party, being a citizen of another state, or a citizen or subject of a foreign state. But it is equally true that whenever, in a controversy between parties to a suit, of which these courts have jurisdiction, the question arises upon the validity of a law by a state impairing the obligation of its contract, the jurisdiction is not thereby ousted, but must be exercised with whatever legal consequences to the rights of the litigants, may be the result of the determination. The cases establishing these propositions, which have been decided by this court since the adoption of the eleventh amendment to the constitution, are numerous. Fletcher v. Peck, 6 Cranch, 87; New Jersey v. Wilson, 7 Cranch, 164; Green v. Biddle, 8 Wheat. 1, 84; Providence Bank v. Bíllings, 4 Pet. 514; Woodruff v. Trapnall, 10 How.*190; Wolff v. New Orleans, 103 U. S. 358; Jefferson Branch Bank v. Skelly, 1 Black, 436.

It is also true 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. The provision is to be substantially applied in furtherance of its intention, and not to be evaded by technical and trivial subtleties. Accordingly, it was held in New Hampshire v. Louisiana, and New York v. Louisiana, 108 U. S. 76, S. C. 2 SUP. CT. REP. 176, that, although the judicial power of the United States extends to "controversies between two or more states," it did not embrace a suit in which, although nominally between two states, the plaintiff state had merely permitted the use of its name for the benefit of its citizens in the prosecution of their claims, for the enforcement of which they could not sue in their own names. So, on the other hand, in Cunningham v. Macon & B. R. Co. 109 U. S. 446, S. C. 3 SUP. CT. REP. 292, 609, where the state of Georgia was not nominally a party on the record, it was held that, as it clearly appeared that the state was so interested in the property that final relief could not be granted without making it a party, the court was without jurisdiction. In that case, the general question was discussed in the light of the authorities, and the cases in which the court has taken jurisdiction, when the objection has been interposed, that a state was a necessary party to enable the court to grant relief, were examnined and classified. The second head of that classification is thus described: "Another class of cases is where an individual is sued in tort for some act injurious to another in regard to person or property, to which his defense is that he has acted under the orders of the government. In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him." And in illustration of this principle reference was made to Mitchell v. Harmony, 13 How. 115; Bates v. Clark, 95 U. S. 204; Meigs v. McClung's Lessee, 9 Cranch, 11; Wilcox v. Jackson, 13 Pet. 498; Brown v. Huger, 21 How. 315;*Grisar v. McDowell, 6 Wall. 363; and U. S v Lee, 106 U. S. 196: S. C. 1 SUP. CT. REP. 240.

The ratio decidendi in this class of cases is very plain. A defendant sued as a wrong-doer, who seeks to substitute the state in his place, or to justify by the authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense. He is bound to establish it. The state is a political corporate body, can act only through agents, and can command only by laws. It is necessary, therefore, for such a defendant, in order to complete his defense, to produce a law of the state which constitutes his commission as its agent, and a warrant for his act. This the defendant, in the present case, undertook to do. He relied on the act of January 26, 1882, requiring him to collect taxes in gold, silver, United States treasury notes, national bank currency, and nothing else, and thus forbidding his receipt of coupons in lieu of money. That, it is true, is a legislative act of the government of Virginia, but it is not a law of the state of Virginia. The state has passed no such law, for it cannot; and what it cannot do, it certainly, in contemplation of law, has not done. The constitution of the United States, and its own contract, both irrepealable by any act on its part, are the law of Virginia; and that law made it the duty of the defendant to receive the coupons tendered in payment of taxes, and declared every step to enforce the tax, thereafter taken, to be without warrant of law, and therefore a wrong. He stands, then, stripped of his official character, and, confessing a personal violation of the plaintiff's rights, for which he must personally answer, he is without defense.

No better illustration of this principle can be found than than which is furnished by the case of U. S. v. Lee, 106 U. S. 196, S. C. 1 SUP. CT. REP. 240, in which it was applied to a claim made on behalf of the national government. The action was one in ejectment, to recover possession of lands, to which the plaintiff claimed title. The defendants were natural persons, whose defense was that they were in possession as officers of the United States under the orders of the government and for its uses. The attorney general called this aspect of the case to the attention of the court, but without making the United States a party defendant. It was decided by this court that to sustain the defense, and to defeat the plaintiff's cause of action, it was necessary to show that the defendants were in possession under the United States, and on their behalf, by virtue of some valid authority. As this could not be shown, the contrary clearly appearing, possession of lands, actually in use. as a national cemetery, was adjudged to the plaintiffs. The decision in that case was rested largely upon the authority of Osborn v. Bank of U. S. 9 Wheat. 738, which was a suit in equity against an officer of the state of Ohio, who sought to enforce one of her statutes which was in violation of rights secured to the bank by the constitution of the United States. The defendants, Osborn and others, denied the jurisdiction of the court, upon the ground that the state was the real party in interest and could not be sued, and that a suit against her officers, who were executing her will, was in violation of the eleventh amendment of the constitution. To this objection, Chief Justice MARSHALL replied: "If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties; but if the person who is the real principal,-the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best-established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal he joined in the suit." v.58-58

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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 ▼. 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