the creation of a disability to employ the power. This, I say, the sovereign alone can do, and the sovereign in our system is not the commonwealth. The second reason is that the constitution expressly provides that the United States shall guarantee to every commonwealth a republican form of government.1 It is not easy to define the republican form; but it seems to me that one of its prominent characteristics is the preservation of all governmental powers by the government and their divestment only by the act of the sovereign. The most direct antithesis to republican government is the feudal form, because republican government is above all things representative government; 2 because it regards government as public business purely and condemns in toto any property rights in governmental powers or in exemptions from their operation. The absolute monarchy stands in far less blunt contradiction to the republican form. The most truly absolute monarch of modern times declared himself to be but the "first servant of the state," i.e. the first representative of the state; but the feudal form, upon both its negative and positive sides, is thoroughly unrepresentative, and deals with public powers as with private rights. On the other hand, the Court has decided that a commonwealth cannot so grant away its power of eminent domain that the constitution of the United States will vest in an individual a right against the future exercise of that power upon the same property.3 I must say that I do not comprehend the reasoning which, upon general principles, concedes the power to a commonwealth to create a right to an exemption from one of its governmental powers and not from another; nor is there any such distinction between the powers in question as to justify such discrimination. Governmental powers are, in all cases, public trusts; and the exemption of 1 Constitution, Art. IV, sec. 4. 2 The Federalist, No. XXXVIII, University edition, p. 259. an individual from the operation thereof, as well as the investment of an individual with the exercise thereof, should always be subject to withdrawal at the pleasure of the government which exempts or which invests. This is, at least, the dictum of sound political science, though our public law does not yet fully correspond thereto. Our public law exaggerates private rights upon this point. The power of the United States government to defend the domain of contractual obligation against impairment by commonwealth law might, however, be made nugatory in many cases, if the principle that the United States has no common law, within the commonwealths, should be adhered to. principle, strictly applied, would require that, when the contract relates to a matter subject to the exclusive jurisdiction of the commonwealth, the United States courts should follow the decisions of the highest courts of the commonwealth in interpreting the question both of the obligation and the impairment. This, however, the Supreme Court has absolutely and expressly refused to do.1 It has asserted its independent power to interpret for itself the law of the commonwealth in reference to contracts and to determine for itself the question of impairment. This is certainly sound jurisprudence. Let it only be so expanded in application as to break down the old and, now certainly erroneous, principle that the United States has no common law within the commonwealths.2 The constitution itself, however, interposes a technical difficulty in the way of an individual attempting to hold a commonwealth by the obligation of its contract with him. The well-known eleventh article of the amendments provides that "the judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States" (commonwealths) 1 The Jefferson Branch Bank v. Skelley, U. S. Reports, 1 Black, 406. "by citizens of another State" (commonwealth) "or by citizens or subjects of any foreign state." This provision has been interpreted as applying also to the case of a suit against a commonwealth by a citizen thereof.1 The Supreme Court of the United States has, however, shown a most wise and commendable spirit in the interpretation of this limitation upon individual rights. It has assumed jurisdiction in behalf of the individual, wherever this could be accomplished without making the commonwealth the original and direct defendant in the suit. For example, it has decided that, if the commonwealth begins the suit, the individual may always appeal to the United States courts without being regarded as the prosecutor; 2 that where property of the commonwealth, or property in which the commonwealth has an interest, comes before the Court and under its control, in the regular course of judicial administration, without being forcibly taken from the possession of the commonwealth, the Court will proceed to discharge its duty, in behalf of the individual party, in regard to that property; that an individual may bring an action in tort against an officer of the commonwealth, and that said officer cannot oust the jurisdiction of the Court by merely proving himself to be an officer and asserting his official authority to do the act complained of, but must prove that his authority is sufficient in law to protect him; that an individual may bring suit against an officer of a commonwealth to compel him to perform a well-defined duty, imposed upon him by law, in regard to a specific matter, in the performance of which the individual may have a distinct interest capable of enforcement by judicial process; and that an individual 1 Cooley, Principles of Constitutional Law, p. 118. 2 Cohens v. Virginia, U. S. Reports, 6 Wheaton, 264. 3 Clark v. Barnard, 108 U. S. Reports, 436. 4 U. States v. Lee, 106 U. S. Reports, 196. 5 U. States v. Schurz, 102 U. S. Reports, 378. may bring suit against an official of a commonwealth to prevent him from violating his official duty to the injury of the plaintiff, when "adequate compensation for the injury cannot be had at law."1 In the recent case of Poindexter v. Greenhow,2 the Court introduced distinctions in behalf of individual rights so refined as to be almost fanciful. This was an action in detinue brought by an individual against an officer of the commonwealth of Virginia to recover possession of property seized by the officer in payment of taxes. The individual had tendered to the officer coupons of Virginia bonds made receivable by an act of the commonwealth for taxes. The commonwealth had by a subsequent act ordered the collection of all taxes in gold, silver, United States treasury notes, national bank currency, and nothing else. The officer made defendant in this suit sought, therefore, to oust the jurisdiction of the Court by making the suit appear to be directed against the commonwealth itself, but the Court said that the commonwealth "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" (commonwealth) “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" (commonwealth) "of Virginia. The State" (commonwealth) "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 1 Davis v. Gray, U. S. Reports, 16 Wallace, 203. Board of Liquidation . McComb, 92 U. S. Reports, 531. 2 114 U. S. Reports, 270. 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." This reasoning seems sophistical in several respects. For example, the distinction between the commonwealth as state and the commonwealth as government is impossible, since the commonwealth is not state, i.e. sovereignty, at all, but only government. Again, the dictum that an act of the commonwealth legislature, not repugnant to the constitution of the commonwealth, is not law of the commonwealth, if it conflicts with a provision of the constitution of the United States, but that the latter is the law of the commonwealth, seems to me an extraordinary confusion of prepositions and an absurd statement of propositions. The constitution of the United States is the law of the United States within the commonwealth, not the law of the commonwealth, and an officer of the commonwealth is bound to obey and execute the law of the commonwealth until it has been decided by the courts to be abrogated by the law of the United States within the commonwealth. The officer of the commonwealth cannot, therefore, in such a case, be personally responsible as a wrong doer. His act is the act of the commonwealth. Notwithstanding the fact that I consider this reasoning to be erroneous, I approve the spirit of the Court which prompts it to the invention of such fictions in order to uphold the property rights of individuals against the too often manifested dishonesty of the commonwealths. I should prefer to see the eleventh amendment abolished; but if this cannot be, I shall not regret to see it perforated by legal fictions. 5. The commonwealths are inhibited from depriving any |