Page:Joseph Story, Commentaries on the Constitution of the United States (1st ed, 1833, vol III).djvu/560

 552 attacking the nation, of arresting its progress at every step, of acting vigorously and effectually in the execution of its designs, while the nation stands naked, stripped of its defensive armour, and incapable of shielding its agent, or executing its laws, otherwise than by proceedings, which are to take place alter the mischief is perpetrated, and which must often be ineffectual, from the inability of the agents to make compensation.

"These are said to be extreme cases; but the case at bar, had it been put by way of illustration in argument, might have been termed an extreme case; and, if a penalty on a revenue officer for performing his duty, be more obviously wrong, than a penalty on the bank, it is a difference in degree, not in principle. Public sentiment would be more shocked by the infliction of a penalty on a public officer for the performance of his duty, than by the infliction of this penalty on a bank, which, while carrying on the fiscal operations of the government, is also transacting its own business. But, in both cases, the officer levying the penalty acts under a void authority, and the power to restrain him is denied as positively in the one, as in the other.

"The distinction between any extreme case, and that which has actually occurred, if, indeed, any difference of principle can be supposed to exist between them, disappears, when considering the question of jurisdiction; for, if the courts of the United States cannot rightfully protect the agents, who execute every law authorized by the constitution, from the direct action of state agents in the collection of penalties, they cannot rightfully protect those, who execute any law.

"The question, then, is, whether the constitution of the United States has provided a tribunal, which can peacefully and rightfully protect those, who are employed in carrying into execution the laws of the Union, from the attempts of a particular state to resist the execution of those laws.

"The state of Ohio denies the existence of this power; and contends, that no preventive proceedings whatever, or proceedings against the very property, which may have been seized by the agent of a state, can be sustained against such agent, because they would be substantially against the state itself, in violation of the 11th amendment of the constitution.

"That the courts of the Union cannot entertain a suit brought against a state by an alien, or the citizen of another state, is not to be § 1680. The same principle applies to cases, where a state has an interest in a corporation; as when it is a stockholder in an incorporated bank, the corporation is still suable, although the state, as such, is