-

But even if we suppose the most indisputable kind of wrong -breach of contract a really substantial difficulty remains. Common law provides no remedy against the king or the government. So far as the evidence goes, we must assume that the Sultan of Johore, masquerading as plain Albert Baker, made a valid and binding offer for the heart and hand of Miss Mighell. He certainly did not live up to the terms of that offer. Yet when the lady sued for breach of promise the court had to deny recovery.5 This was simply and solely because the defendant was a royal person, not at all because of the merits of the case. Plaintiff might have won had she been able to prove that the Sultan, after his metamorphosis from Prince Charming to a Prince of the Malay Peninsula, lost his throne and became an ordinary citizen. We are not afflicted with the vagaries of a personal sovereign. Decisions do strike home to us, though, which hold that a government may operate a railroad or a telegraph line without being answerable for negligence."

pears from the famous case of the armed brig General Armstrong. During the War of 1812 the ships' boats of a powerful British squadron attacked this little vessel in the neutral Portuguese harbor of Fayal. The Portuguese authorities gave no assistance, but the privateersmen were not too proud to fight a very brilliant action, beating off three assaults in which the assailants lost nearly two hundred men. Then the Britishers brought their guns into play, whereat the Americans, seeing that the jig was up, scuttled the General Armstrong and abandoned her. Portugal, having failed in its duty of protection, was liable to the privateer's owners. The liability could, however, be enforced only through diplomatic channels. After long delay the United States submitted the dispute to Louis Napoleon as arbitrator and accepted his adverse award. The claimants thus lost their right against Portugal. Asserting that the award was wrong and that the government had selfishly sacrificed the claim to its own interests, they turned to Congress for indemnity. The case was referred to the newly established Court of Claims. Two questions arose. Had the United States bungled? and, granting this, Was it liable? The court split on both points, first deciding two to one for the claimants and then on rehearing two to one against them. 2 Rep. Ct. Cl., 1st sess., 35th Congress, No. 149, pp. 52, 154, 165, 189 (1858); The Case of the Private Armed Brig of War General Armstrong, reported and edited by Sam C. Reid, Jr., 1857. On the question of liability, Charles O'Conor's argument and the dissenting opinion of Gilchrist, C. J., are well worth reading. Further history of this remarkable claim appears in 2 MOORE, INTERNATIONAL ARBITRATIONS, 1071 et seq., and 18 GREEN BAG, 331. 5 Mighell v. Sultan of Johore, [1894] 1 Q. B. 149. This is a case in international, not municipal, law. But of course the same result would have followed with the King of England for defendant.

• Munden v. Duke of Brunswick, 10 Q. B. 656 (1847). "Acts of state," however, will not rise to haunt a sovereign who abdicates or is deposed. They create no personal liability. Hatch v. Baez, 7 Hun (N. Y.) 596 (1876).

The Queen v. McLeod, 8 Can. Sup. Ct. 1 (1882); Bainbridge v. Postmaster-General, [1906] 1 K. B. 178.

8

Many lawyers probably accept this lack of remedy against the state on the assumption that it is a common attribute of sovereignty the world over. That is not so. Few important nations in Europe close their courts to individuals having claims against the administration. Liability is sometimes limited,' but this is not the same thing as an absolute denial of remedy. True enough, any right to sue a sovereign must rest on that sovereign's consent. Yet the practical difference is tremendous between the attitude of our law, which grants such consent only rarely, and of the civil law, which gives it pretty much as a matter of course.

Although the writer's text is Professor Maitland's remark that "it is a wholesome sight to see 'the Crown' sued and answering for its torts," 10 much of the following comment applies equally to contractual remedies also. The whole common-law rule of state immunity is unnecessary. Even if a full remedy were given private claimants the courts would enforce only a restricted liability. That is exactly what has happened in respect of municipal corporations, which wear no magic cloak of regality.

Further, a rigid application of the old rule under modern conditions brings most undesirable results. The hardship inflicted receives emphasis from the fact that states are rapidly assuming the

8 See 2 GOODNOW, COMPARATIVE ADMINISTRATIVE LAW, 161 et seq.; also the following cases under the abandoned and captured property acts of our Civil War period: Brown v. United States, 5 U. S. Ct. Cl. 571 (1869) (Prussia); Lobsiger v. Same, id., 687 (1869) (Switzerland); Rothschild v. Same, 6 id., 204 (1870) (France); Dauphin v. Same, id., 221 (1870) (France); Brown v. Same, id., 171, 193 (1870) (Holland); Molina v. Same, id., 269 (1870) (Spain); DeGive v. Same, 7 id., 517 (1871) (Belgium); and Fichera v. Same, 9 id., 254 (1873) (Italy).

The early Scotch kings were not irresponsible rulers. J. A. Lovat-Fraser, "The Constitutional Position of the Scottish Monarch Prior to the Union," 17 L. QUART. REV. 252. There is still apparently more freedom of private suit against the Crown in Scotland than in England. Somerville v. Lord Advocate, 30 Scot. L. R. 868, 884 (1893). It seems likely that a tort action would not lie, no matter on what ground it was based. Smith v. Lord Advocate, 35 Scot. L. R. 117 (1897).

A citizen secures from the courts only legal recognition, not legal enforcement, of his rights against the state. BROWN, THE AUSTINIAN THEORY OF LAW, 194; SALMOND, JURISPRUDENCE, 3 ed., 202. But he is practically sure of appropriate relief if the decision be in his favor.

• See, for instance, the distinction between the acts of special agents and of regular officials in the SPANISH CIVIL CODE, art. 1903; 2 GOODNOW, op. cit., 162.

10 "The Crown as Corporation," 17 L. QUART. REV. 131, at p. 142. As to the United States, "it is difficult to see on what solid foundation of principle the exemption from liability to suit rests." Miller, J., in United States v. Lee, 106 U. S. 196, 206 (1882).

responsibilities forced upon private employers by workmen's compensation acts. It is quite conceivable that if negligence caused a boiler explosion in a government power plant, an employee hurt inside the building would have rights to compensation which he could enforce in court, while a passing pedestrian struck by flying débris might search vainly for a legal remedy."

Perhaps the principal point to be made concerns the state's own financial interest. A persistent claimant, barred from the courts, does not stop there. He goes to the legislature. That body is surpassing generous with other people's money. It is unrestrained by legal rules as to admissibility of evidence or amount of damages. It knows no statute of limitations. It applies no principle of res judicata. It is exceedingly unlikely to draw with any precision the line between satisfying a liability and making a gift.12 Judges may be pardoned an inward smile when they rebuke persons who have the temerity to sue states, telling them that such action insults the sovereign's dignity and that the proper procedure is meekly to beg the legislature for relief. Here, at least, meekness often pays large dividends.

It may seem inconsistent to urge both hardship to the citizen and expense to the state. Not necessarily. Political motives rule the legislature. It is not fitted to be a court of justice. Securing the passage of a bill is very different from pushing a case to judgment. Perfectly sound claims may well be lost in the legislature for lack of proper introduction or effective backing; entirely unsound ones, particularly if they appeal to sympathy, may be log-rolled through. The most meritorious cause of action does not, alas, invariably command the services of the ablest politicians. Public money is

11 Judge Smith has ably demonstrated the general lopsided effect of workmen's compensation acts. 27 HARV. L. Rev. 235.

12 George M. Davie, "Suing the State," 18 AM. L. REV. 814; The "Supreme Court of Spoils," 112 OUTLOOK, 616 (March 15, 1916); and Charles Warren's vigorous "Massachusetts as a Philanthropic Robber," 12 HARV. L. REV. 316. In some states constitutional provisions forbid gifts of public money, and everywhere the principle that taxation must be for public purposes only is supposed to be enforced. But the watchdog of the treasury earns more buffets than blessings and finds it almost impossible to perform his duty with entire success. Courts properly dislike interfering with the legislature's appropriations and give them the benefit of every doubt. See the Opinions of the Justices in 175 Mass. 599, 57 N. E. 675 (1900); 186 Mass. 603, 72 N. E. 95 (1904); 190 Mass. 611, 77 N. E. 820 (1906); and 211 Mass. 608, 98 N. E. 338 (1912).

constantly squandered without doing justice. Nothing, perhaps. short of prohibiting the practice will keep plaintive gentlemen from appealing to tender-hearted legislators. But an open road to the courts robs these appeals of their plausibility.

After all, the proof of the pudding is the eating. It is significant that scarcely any modern state denies every semblance of legal remedy to the private claimant. The English petition of right serves well enough to enforce contracts and for the recovery of taxes or other property wrongfully withheld by the Crown. Nearly everywhere in the United States individuals can compel payment of government debts by proceedings of a judicial character. If taxes are illegally extorted, we whip the devil round the stump by suing the collector. Written constitutions protect us from uncompensated seizures of property. The case is not so clear when a tort involves personal injury or damage to property as distinguished from its expropriation. Still, remedies do exist.

If the government carries on industrial enterprises through the medium of legally distinct corporations or boards of trustees, these bodies may be sued for tort.13

When the government acts without intermediaries statutes frequently provide for proceedings directly against it. These statutes are of two classes. Those in the first class create or define particular rights and provide remedies for their enforcement. Thus at Panama, where all the realty and most of the personalty are public property, the United States solved the problem of sovereign's liability with a series of workmen's compensation acts. Now that the canal is occasionally open, those injured in person or property while using it have a statutory right of action.14

In substance Massachusetts was suable on tort claims arising from its management of the Troy and Greenfield Railroad and the

13 The leading English case is Mersey Docks Trustees v. Gibbs, 11 H. L. Cas. 686 (1864). See also W. Harrison Moore, "Liability for Acts of Public Servants," 23 L. QUART. REV. 12; "The Shield of the Crown," 35 CAN. L. T. 897; ROBERTSON, CIVIL PROCEEDINGS BY AND AGAINST THE CROWN.

The British colonies follow the same rule. Sweeney v. Board of Land & Works, 4 Vict. L. R. 440 (1878). So do our own states. Hutchinson v. Western, etc. R. Co., 6 Heisk. (Tenn.) 634 (1871). The stock of the Panama Railroad is held in trust for the United States. But it seems never to have been doubted that tort actions will lie against the corporation. Fitzpatrick v. Panama R. Co., 2 Canal Zone Sup. Ct. R. III (1913).

14 Panama Canal Act (Aug. 24, 1912), 37 U. S. STAT. AT LARGE, part 1, 560, 563.

Hoosac Tunnel.15 By statute New York has long been responsible for negligence in connection with its canals; and Ohio has a similar law.16

Canada gives legal remedies for injuries caused by negligence on public works.17 A like statute has been passed by West Australia.18 New Zealand makes the Crown pay for damage suffered in connection with certain public works from which revenue is derived.19 Such laws suggest the decisions of the French administrative courts respecting travaux publics.20

The second class of legislation does not deal at all with particular rights, but does give private claimants a general judicial remedy against the sovereign. Statutes of this kind are common in the British colonies and exist in at least nine of our States.21 From the lawyer's point of view they are extremely interesting. Removing the initial problem of remedy, they make the courts work out their own principles of right. The decisions under them are shaping the whole structure of governmental liability. It would be possible to

15 Amstein v. Gardner, 134 Mass. 4 (1883).

16 Reed v. State, 108 N. Y. 407 (1888), 15 N. E. 735; Sundstrom v. State, 213 N. Y. 68, 106 N. E. 924 (1914); In re Claims against the State, 8 Ohio L. R. 59, 68 (1910). 17 CAN. REV. STAT. (1906), c. 140, § 20; 9-10 EDW. VII (1910), c. 19.

18 City of York Co. v. The Crown, 4 W. Austr. R. 63 (1902).

19 The Queen v. Williams, L. R. 9 A. C. 418, 433 (1884) (harbor snag); Hill v. The King, 33 N. Z. L. R. 313 (1913); Gibbons v. The King, id., 527 (1913) (railways); The King v. Shand, 23 N. Z. L. R. 297, 306 (1903) (gravel pit from which ballast was taken for railway).

20 2 E. LAFERRIÈRE, TRAITÉ DE LA JURIDICTION ADMINISTRATIVE, 1 ed., 176; the following cases before the Conseil d'Etat are typical: 12 July, 1855, Bourdet, D. P., 1856-3-5; 6 May, 1881, Tysack, D. P., 1882-3-106; 21 July, 1882, Turnbull, D. P., 1884-3-29; 27 June, 1890, Chedru, D. P., 1892-3-12 (injuries to ships in ports or docks); 14 Jan., 1910, Comp. d'Assurances l'Urbaine, D. P., 1911-3-124 (fire caused by fall of telephone wire); 17 May, 1878, Bouveret, D. P., 1878-3-82 (damage from state dynamite factory); 28 Feb., 22 May, 1908, D. P., 1911–5-24 (fire set by steam roller).

21 Arizona: 1913 CODE CIV. PROCEDURE, part 13, §§ 1791 et seq. California: HENNING'S GEN. LAWS (1914), Act 4824, p. 1773. Illinois: 2 ANNOTATED STAT. (Jones & Addington), parts 3417, 3419. Massachusetts: REV. LAWS, C. 201, § 1. New York: CODE CIV. PROCEDURE, § 264. It has been thought, particularly outside New York, that this section creates liabilities as well as a remedy. The wording of the statute and the reasoning of the decisions under it do not sustain this idea. North Carolina: I PELL'S REVISAL (1908), § 1537. South Dakota: 2 COMP. LAWS (1913), CODE CIV. PROCEDURE, §§ 25-28, p. 320. Virginia: CODE (Pollard, 1904), § 765; construed in Higginbotham's Ex'x. v. Commonwealth, 25 Gratt. 627, 637 (1874), and AttorneyGeneral v. Turpin, 3 Hen. & M. 548, 557 (1809). Washington: PIERCE'S WASH. CODE (1912), tit. 453, § 9.