Mr. Justice MILLER, after reciting the facts in the foregoing language, continued: It is not at all difficult to discover the purpose of all this legislation. Throughout a large part of the theatre of the civil war the officers of the army as well as many civil officers were engaged in the discharge of very delicate duties among a class of people who, while asserting themselves to be citizens of the United States, were intensely hostile to the government, and were ready and anxious at all times, though professing to be noncombatants, to render every aid in their power to those engaged in active efforts to overthrow the government and destroy the union. Some special statutes were passed after delay of a general character, but it was soon seen that many acts had probably been done by these officers in defense of the life of the nation for which no authority of law could be found, though the purpose was good and the act a necessity. That an act passed after the event which in effect ratifies what has been done, and declares that no suit shall be sustained against the party acting under color of authority, is valid, so far as Congress could have conferred authority before, admits of no doubt. These are ordinary acts of indemnity passed by all governments when occasion requires it.

That is the gist of this case: These are ordinary acts of indemnity passed by all governments when occasion requires it. The inquiry at once presents itself, how can such an act stand as constitutional in the United States? Such a statute applied to matters between man and man could not be valid; it would deprive the party wronged of his fundamental rights. Yet it is allowed to be due process of law to protect an officer from the consequences

of an act done in the course of administration, and properly so since this is the exercise of an indispensable governmental power in the last analysis. This can apply of course only to the ratification of such acts as there was constitutional power in Congress to have authorized if it had acted in advance. It must always happen that in a few cases for acts performed in good faith in the presence of an overpowering emergency there would be no constitutional power to make them good by subsequent legislation, since there would have been no power to authorize the seizure or the arrest by precedent legislation.

Another class of statutes for the exoneration of public officers is much more equitable for all concerned. An example of this sort is United States v. Sherman, 98 U. S. 565 (1878). This was an application for a mandamus to John Sherman, Secretary of the Treasury, commanding him to pay to Alexander McLeod, the relator, the sum of $4,279.94, with interest. It appeared that the relator had recovered judgment against one T. C. Callicott, a supervising special agent of the Treasury Department. The relator thereupon applied to the court for a certificate of probable cause under 12 United States Statutes, 741; he thereupon presented the certificate to the Treasury Department; where he was refused payment of full interest.

Mr. Justice STRONG refused the writ as prayed for: The twelfth section of the act of Congress of March 3, 1863, relative to suits against revenue officers, enacted that where a recovery shall be had in any such suit, and the court shall certify that there was probable cause for the act done by the collector or other officer, or that he acted under direction of the Secretary of the Treas

ury or other proper officer of the government, no execution shall issue against the collector or other officer, but the amount so recovered, shall upon final judgment be provided for and paid out of the treasury. When the certificate is thus given, the claim of the plaintiff in the suit is practically converted into a suit against the government, but not until then; thus interest runs from that time, not sooner.

In any usual conditions of government, this is a solution of the general problem that will commend itself. In those usual conditions it is only fair that the gov ernment itself should exonerate the officer from the consequences of an act done with probable cause in the course of administration; and in especial that seems the right of the matter when an act of a subordinate officer is in question which has been done in accordance with express orders of his superior officer. If there is no such general statute, the officer may hope with some confidence from a special statute for his special case, if it is clear that his act was done with probable cause in the course of the execution of the law. More than that, since this is also the view of the internal law of the administration that inferior officers ought act in obedience to their superiors, the administration will do its best to relieve its officers against the consequences of such proper obedience. One common practice is to put the forces of the office of the Department of Justice at the disposal of the officers to present his defense. And the disbursing side of the Treasury Department has been known to be so bold as to allow the costs of litigation to an officer as expense incurred in the course of duty.10

10 PUBLIC ACTION.-Gidley v. Palmerston, 3 B. & B. 275; Grant

$ 14. Official.

The condition of the law governing administration being this, that the administration itself could not be sued, but any member of the administration might be, the attempt has often been made in appreciation of this situation to bring a suit against the individual officer, when in truth what is wished is to get relief against the state itself by force of the proceeding against the officer. A late case reviewing the failure of this attempt is the elaborate case of Pennoyer v. McConnaughy, 140 U. S. 1 (1891). This was an equitable suit against the Governor, Secretary of State, and Treasurer of Oregon, who comprised the Board of Land Commissioners, to restrain and enjoin them from selling and conveying a large tract of land to which plaintiff claimed title. An act of the Legislature of Oregon had required the Board of Commissioners to cancel such certificates as his, in pursuance of which the commissioners were acting. There was a demurrer to the bill on the ground that the suit was in substance against the state.

Mr. Justice LAMAR delivered the opinion of the court: The immunity of a state from suit is absolute and unqualified, and the constitutional provision securing it is not to be construed so as to place the state within the reach of the process of the court. Accordingly, it is equally well settled that a suit against the officers of

v. Secretary, 2 C. P. D. 445; Dinsman v. Wilkes, 12 How. 390; Mitchell v. Clark, 110 U. S. 633; United States v. Sherman, 98 U. S. 565; Bayard v. United States, 127 U. S. 246; Little Rock, etc., R. R. Co. v. Worthen, 46 Ark. 312; Sumner v. Beeler, 50 Ind. 341; State v. Burke, 33 La. Ann. 512; Warren v. Kelley, 80 Me. 512; Fisher v. McGirr, 1 Gray, 1; State v. Godwin, 123 N. C. 697; Williams v. Schmidt, 14 Ore. 470; Campbell v. Sherman, 35 Wis. 103.

Adm. Law-4.

a state to compel them to do acts which constitute a performance by it of its contracts, is, in effect, a suit against the state itself. In application of this latter principle two classes of cases have appeared in the decisions of this court, and it is in determining to which class a particular case belongs that differing views have been presented. The first class is where the suit is brought against the officers of the state as representing the state's action and liability, thus making it, though not a party to the record, the real party against which the judgment will so operate as to compel it specifically to perform its contracts.

The other class is where a suit is brought against defendants who, claiming to act as officers of the state, and under the color of an unconstitutional statute, commit acts of wrong and injury to the rights and property of the plaintiff acquired under a contract with the state. Such suit whether brought to recover money or property in the hands of such defendants, unlawfully taken by them in behalf of the state, or for compensation in damages, or in a proper case where the remedy at law is inadequate for an injunction to prevent such wrong and injury, or for a mandamus in a like case to enforce upon the defendant the performance of a plain legal duty, purely ministerial is not within the meaning of the eleventh amendment an action against the state. It cannot be said, therefore, that this is a suit against the state, within that amendment.

This general controversy has been of great historical importance in the constitutional history of the United States. Again and again, when some one or other of