Page:Harvard Law Review Volume 8.djvu/168

152 152 HARVARD LAW REVIEW. preventive or compensatory. They may enjoin individuals or cor- porations from attempting to carry out the Massachusetts statute, or they may recover damages after the wrong has been done. Nor does the Eleventh Amendment to the United States Con- stitution stand in the way. That amendment prohibits suits in the United States Courts against a State by citizens of another State. But it does not prohibit suit against the individuals who undertake to act as agents or officers of a State, in a case like the present. This is conclusively settled by the decisions of the Supreme Court of the United States. The Eleventh Amendment does not apply to the " class of cases where an individual is sued in tort for some act injurious to another in regard to persons or property, to which his defence is that he has acted under the orders of the 'State' government. In these cases he is not sued as, or because he is, the officer of the govern- ment, but as an individual, and the court is not ousted of jurisdic- tion because he asserts authority as such officer. To make out his defence he must show that his authority was sufficient in law to protect him." — Miller, J.^ To complete his defence he must pro- duce a valid statute of the State, authorizing what he is doing. The Court rejects "the extravagant proposition that a void act can offord protection to the person who executes it." — Marshall, C. J.^ Suits may be maintained "against individual defendants, who, under color of the authority of unconstitutional legislation by the State, are guilty of personal trespasses and wrongs. If the State legislation under which the defendant attempts to justify is held null and void, he is left defenceless ; and legal proceedings may be taken against him "in those instances where the act com- plained of, considered apart from the official authority (ineffectually) alleged as its justification, and as the personal act of the individual defendant, constituted a violation of right for which the plaintiff was entitled to a remedy at law or in equity against the wrongdoer in his individual character." — Matthews, ]? One of the early and leading cases on this subject has since been summarized as follows: "The right asserted and the relief asked were against the defendants as individuals. They sought to protect themselves against personal liability by their official character as representa- tives of the State. This they were not permitted to do, because 1 109 U. S. p. 452. ' 123 U. S. pp. 500, 501, 502.
 * 9 Wheaton, p. 839.