270 



COUPON CASES. 



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, 

 can not rest on the bare assertion of his de- 

 fense. 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 de- 

 fendant, 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 

 Jan. 26, 1882, requiring him to collect taxes in 

 gold, silver, United States Treasury notes, na- 

 tional-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 can not ; and what 

 it can not do, it certainly, in contemplation of 

 law, has not done. The Constitution of the 

 United States, and its own contract, both irre- 

 pealable 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 with- 

 out warrant of law, and therefore a wrong. 

 He stands, then, stripped of his official charac- 

 ter, and, confessing a personal violation of the 

 plaintiffs rights, for which he must personally 

 answer, he is without defense." 



The distinction between the government of 

 a State and the State itself, the opinion contin- 

 ues, is important and should be observed. In 

 common speech and common apprehension 

 they are usually regarded as identical ; as ordi- 

 narily the acts of the government are the acts 

 of the State, because, within the limits of its 

 delegation of powers, the government of the 

 State is generally confounded with the State 

 itself, and often the former is meant when the 

 latter is intended. 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 au- 

 thority of its government, and both government 

 and State are subject to the supremacy of the 

 Constitution of the United States. The State 

 can speak and act only by law ; whatever it 

 does say and do must be lawful. That which 

 is unlawful, because made so by the supreme 

 law, the Constitution of the United States, is 

 not the word or creed of the State, but is the 

 mere wrong and trespass of those individual 

 persons who falsely speak and act in its name. 

 "This distinction is essential to the idea of 

 constitutional government. To deny it or blot 

 it out obliterates the line of demarkation that 

 separates constitutional government from ab- 

 solutism, 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, 4 Uetat, Jest moi? 

 Of what avail are written constitutions whose 

 bills of right for the security of individual lib- 

 erty 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 sacred authority of law, not only com- 

 pelling obedience, but entitled to respect ? And 

 how else can these principles of individual lib- 

 erty 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 inter- 

 pose 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." 



The mandate of the State affords no justifi- 

 cation 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 individ- 

 ual 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 prin- 

 ciples on which the Constitution rests, and 

 practically makes the statutes of the States the 

 supreme law of the land within their respective 

 limits. Justice Matthews then proceeded to 

 apply these principles to the case before the 

 Court, as follows : 



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 he 

 receivable in payment of taxes, it was the contract of 

 the State of Virginia, because, though made bv 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 rep- 

 resentative ; and inasmuch as, by the Constitution or 

 the United States, which is also the supreme law ot 

 Virginia, that contract, when made, became thereby 

 unchangeable and irrepealable by the State, the subsc 

 quent act of Jan. 26, 1882, and all other like acts, 

 which deny the obligation of that contract and forbic 

 its performance, are not the acts of the State ot \ ir- 

 gima. The true and real Commonwealth which con 

 tracted the obligation is incapable in law of doing any- 

 thing in derogation of it. Whatever having that 

 effect, if operative, has been attempted or done, is th 

 work of its government acting without authority, in 

 violation of its fundamental law, and must be looked 



