Page:United States Reports, Volume 209.djvu/224

 1 OCTOBER TERM, 1907. H. n-, J. denting. 209 U.S. and sought a decree against hi'in his official capacity, not otherwise. Some reference has been made to Ex parte Roya//, 117 U.S. 241, and other cases,' hat affirm the authority of a Federal court, under existing statutes, to discharge upon   from the custody of a state officer one who is.held in violation of the Federal Constitution for an alleged crime against a State. Thcee case ar not at all in point in the present dis- cussion. Such a habeas corpus proceeding is ex parte, having for its object only to inquire whether the applicant for the writ is illegally retrained of his liberty. If he is, then the state officer holding him in custody is a trespasser, and can- not defend the wrong or tort committed by him, by pleading his official character. The power in a Federal court to dis- charge a person from the custody of a trespasser may well exist and yet the court has no power in a suit before it, by an order directed against the Attorney General of a State, as such, to prevent the State from being represented by that officer, as a litigant in one of it own courts. The former case, it may b argued, come within the decisions which hold that a suit which only seeks to prevent or restrain a trespass upon �property or person by one who happens to be a stat officer, but is proceeding in violation of the Constitution of the United State, is not a suit against a State within the meaning of the Eleventh Amendment, but a suit against the trespasser or wrongdoer. But the authority of the Federal court to pro- tect one against a trspass committed or about to be com- mitted by a state officer in violation of the Constitution of the United State is vei'y different from the power now as- serted, and recognized by this court as existing, to shut out a sovereign State from its own courts by the device of .for- bidding its Attorney General, under the penalty of fine and imprisonment, from appearing in such courts in its behalf. Th mere/,-//ng o! a s/t on beha/! o! a State, b as Attor Genera/, cannot (this court has decided in the Atrs case) make that officer a trespasser and individually liable to the

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