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It is obvious that in this state of things, the same coupon might serve as a tender for many tax-payers, in fraud of the right of the State to have her taxes paid in money or in these coupons.

To avoid all this-to compel the tax-payer to pay in coupons what taxes he refused to pay in money, to verify the genuineness of the coupons tendered, and to forbear the ex parte procedure by levy — the statute of May 12, 1887, was passed.

On its face, in its preamble, in the procedure provided, there is no taint of unconstitutionality, according to the rulings of this court. See Murray v. Hoboken Co., 18 How. 272; Collector v. Day, 11 Wall. 113; Antoni v. Greenhow, 107 U. S. 769; Bissell v. Heyward, 96 U. S. 580.

VII. This is a suit in fact against the State of Virginia, and all proceedings are null and void. It makes the Attorney General and all attorneys for the Commonwealth parties defendant as such officers. It compels them, not as ministerial but as discretionary officers, to regulate their official action by the will of a Federal judge. It takes them away from their duties and imprisons them until they surrender the suits and judgments of the State, and compels the State into the alternative of accepting what is tendered in taxes, whether spurious or not, or taking nothing. It has driven the State from levy for her taxes and now seeks to exclude her from her own courts as a suitor. If this is not a breach upon the immunity of the State under the Eleventh Amendment, what is its value?

A historical epitome of the proposal and adoption of this amendment is pertinent to this inquiry. Alexander Hamilton, in the 81st number of the Federalist, discusses the question whether a State can be sued in the Federal courts by a citizen of another State. He seems to treat the possibility of her being sued by one of her own citizens as too remote even for hypothesis. He declares the fear of such a construction is chimerical.

But within a few years after the Government went into operation the Supreme Court, in Chisholm v. Georgia, 2 Dall. 419, entered judgment for a citizen against a State. Many

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such suits were pending in this court, most of them, perhaps all, by citizens of another State against one of the States. The original records in this court show the following: Huger v. South Carolina, Oswald v. New York, Vassall v. Massachusetts, Von Stophust v. Maryland, Cutting v. South Carolina, Hollingsworth v. Virginia, Grayson v. Virginia.

The judgment in Chisholm v. Georgia was rendered on the 18th of February, 1793. Great alarm was produced among the States by this decision, and on the 20th of February, 1793, an amendment was proposed in the Senate of the United States which read:

"The judicial power shall not extend to any suits 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." Its consideration was delayed until January 21, 1794, when it had assumed the form it now has. "The judicial power shall not be construed to extend to any 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."

Mr. Gallatin proposed an amendment, "Except in cases arising under treaties made under the authority of the United States." This was voted down.

On the same day an amendment was proposed so that the article would read thus: "The judicial power of the United States extends to all cases in law or equity in which one of the United States is a party, but none shall be prosecuted where the cause of action shall have arisen before the ratification of this amendment." This was voted down. The amendment as finally adopted was then passed by the Senate-ayes, 23; noes, 2.

It went to the House of Representatives. An amendment was proposed there in these words: "When each State shall have previously made provision in their own courts whereby such suit may be prosecuted to effect." Voted down—ayes, 8; noes, 77. The Eleventh Amendment was then adopted by the House: ayes, 81; noes, 9. It may be well to notice in passing that on the 2d March, 1793, the act passed Congress

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which forbade injunctions by a Federal court to stay proceedings in a state court.

The amendment was ratified in 1798. In Grayson v. Virginia, 3 Dall. 320, this court directed process against Virginia to be served on the Governor and Attorney General of the State. In Hollingsworth v. Virginia, 3 Dall. 378, the court un'animously dismissed all pending suits against States on its docket as being forbidden by the Eleventh Amendment.

This historic statement justifies the following conclusions: (1) It shows that by the Constitution makers it was ordained that the original Constitution should not be construed (as it had been in Chisholm v. Georgia) to extend to any suit by a citizen of one State, or foreign subjects against a State. (2) If any of these suits were those of citizens against his own State (as it may have been from the names of the plaintiffs in Huger v. South Carolina and Grayson v. Virginia) they, with those against a State by parties not citizens thereof, were equally condemned by this amendment.

This amendment is an authoritative interpretation of the original Constitution. It was an imperative mandate to the judiciary not to construe their jurisdiction so as to entertain such suits. It was a recoil from such a construction in the interests of the immunity of a member of the Union from being impleaded in a Federal court by any person whatever. How, then, should it be construed by this court now?

The answer seems plain. It should be interpreted in favor of the immunity, and to defeat every device which would destroy or impair it. The court should not see how near an approach a suit may make to the fences which constitute the immunity, but how far it must keep away, lest it trench upon the sovereignty of the State. Devices which do not assail directly, but which furtively and adroitly avoid the thing forbidden in form, but do the thing substantially and in effect, must be condemned as contrary to its true purpose and meaning.

We hold that this is an injunction against the State in fact: 1. Because, as already indicated, it destroys an essential function of State autonomy - the power to sue her debtor in

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her own court and by her own officers. It imprisons them for asserting her right as her law officers. Collector v. Day, 11 Wall. 113, is conclusive on this point. If the State can only sue by such professional attorneys, is not an injunction upon the only possible agency through which the invisible, immaterial State can act, a clear destruction pro tanto of State autonomy? As you cannot enjoin a State from suing-as you cannot serve the injunction, if you could do so, on an invisible and intangible entity, as she can only exert this function by human agencies—can there be a doubt that in cutting these off you leave the State maimed and helpless, a sovereign without will and without capacity to act? In fact it is obvious that to constrain her you must constrain these agencies, the sine qua non of her action; and, if this be so, how is this amendment of avail if, unable to touch her, you cut off her only means of acting?

2. In suing the executive officer, the Attorney General (on whom, as a representative of the State, in Grayson v. Virginia, this court ordered process against the State to be served), you sue the State; you enjoin it. In the Virginia cases, 100 U. S. 303-370, this court held that every officer of a State who acted for the State in the execution of its laws was the State under the Fourteenth Amendment. Shall the State be bound for their act and yet their act not be the State's under the immunity of the Eleventh Amendment? Suppose an injunction was granted against the Attorney General and all District Attorneys of the United States to prevent suits in the name of the United States, could there be a doubt that that would be an injunction upon the Government? See United States v. McLemore, 4 How. 286; Hill v. United States, 9 How. 386; Mississippi v. Johnson, 4 Wall. 475; Georgia v. Stanton, 6 Wall. 50.

3. This decree interferes with the discretion of these officers, and they are not merely ministerial officers. Let it be remembered, no suit is ordered under this law against any man who has paid his taxes. The law is explicit on this point. The Attorney General and other attorneys are discretionary officers, charged with functions which demand intelligent discre

VOL. CXXIII-30

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tion. In such cases they are held to be the State. See Board of Liquidation v. McComb, 92 U. S. 531; Cunningham v. Macon, &c., Railroad, 109 U. S. 446, and cases reviewed. Where the mind and will of the State (the invisible sovereign) operate through the mind and will and according to the discretion of its officers, they are the State and must be so held, or the Eleventh Amendment means nothing. See Louisiana v. Jumel, 107 U. S. 711; Antoni v. Greenhow, 107 U. S. 769; Hagood v. Southern, 117 U. S. 52. This last case is very pertinent, for the suit and decree were against the officers in their official capacity and operated on their discretion.

4. The Virginia Coupon Cases, 114 U. S. 269, are cited against the views presented. In these cases the majority of the court based their conclusions on several grounds: (1) The officer was ministerial; but in this case there is discretion. (2) In that case there was actual taking of property, which was trespass unless justified by respondeat superior, which was denied him. In that case the officer seized and held property. In this case he holds and has seized none; he only sues one who is a confessed debtor: but if he did not so confess, merely suing is no trespass and no invasion of right which a valid plea at law will redress. The officer in that case might, ex mero motu, have trespassed. Here the attorney cannot, for there is no trespass, and he has no interest and takes none. (3) In that case the officer made the aggression on the citizen, for which the court held he should have redress. In this case he makes none; he summons him who is a debtor to try whether he ought on his tender to be discharged. Clearly the coupon cases do not govern this. This strikes at the very citadel of the State's immunity. A levy without right is trespass. A suit without good ground is not a wrong of which a party can complain if his defence is allowed, for which he can enjoin. Virginia has a right to sue, giving her citizens a fair trial, and doing so neither she nor her officers can be enjoined.

VIII. The prisoners must be discharged upon either of two grounds: (1) If the court, on any ground previously maintained, was without jurisdiction or transcended its jurisdiction (as in the imprisonment until the prisoner did the impossible