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illegal acts under a doctrine of immunity from suit. The exact limits of the doctrine cannot be stated in any broad principle, but may be expressed by a number of narrow rules, applicable to special classes of cases. For example, an action against a state officer, whose object is to compel a specific performance of the state's contract, is a suit against the state. In property cases, a suit against an officer to obtain possession of property in which the state has title and possession, or to compel him to pay money out of the state treasury, or to prevent the state from using its own property 4 is a suit against the state. In general, the performance of ministerial duties by a public officer may be enforced by mandamus, and this is not regarded as a suit against the state. Officers who are clothed with some duty in regard to the enforcement of an unconstitutional statute may be enjoined, and the suit will be regarded as one against the state only where the officer acts as a representative of the state without any connection with the enforcement of the statute.5

· Hagood v. Southern (1886), 117 U. S. 52; North Carolina v. Temple (1890), 134 U.S. 22; Louisiana v. Jumel (1882), 107 U. S. 711; In re Ayers (1887), 123 U. S. 443.

2 Cunningham v. Macon, etc. (1883), 109 U. S. 446; Christian v. N. C. Railroad (1890), 133 U. S. 233. In the Cunningham case, Justice Miller classified at length the cases in which a suit against an officer was held to be a suit against the state.

* Louisiana v. Jumel (1882), 107 U. S. 711; Smith v. Reeves (1899), 178 U. S.


* Belknap v. Schild (1895), 161 U. S. 10.

Ex parte Young (1907), 209 U. S. 123, 154; Smyth v. Ames (1898), 169 U. S. 466; Prout v. Starr (1903), 188 U. S. 537; Gunter v. Southern, 200 U. S. 543, 559; Mississippi v. Illinois, 203 U. S. 335, 340; cf. Fitts v. McGhee, 172 U. S. 516; Reagan v. Trust Co., 154 U. S. 362. A valuable note as to when public officers are subject to suit although they assume to be acting for a state or the United States is appended to the report of the case of Sanders v. Saxton (New York, Oct. 1905), in 108 Amer. State Rep. 826, 830-844.

Valuable discussions, more or less exhaustive, of the cases and the distinctions between suits against states and officers are contained in a book by Singewald, Karl. The doctrine of non-suability of the state in the United States, Baltimore, 1910, and in the following articles: The eleventh amendment and the non-suability of the state, by A. F. Wintersteen, 30 Amer. Law Reg. (1891), 1-15; Suability of states by individuals in the courts of the United States, by Jacob Trieber, 41 Amer. Law Rev. (1907), 845–869; Suits against states by individuals in the federal courts, by William Trickett, 41 Amer. Law Rev. (1907), 364-383; The eleventh amendment, by Herbert S. Hadley, 66 Cent. Law Jour. (1908), 71–76. See also note in 7 Columbia Law Rev. (1907), 609-611.

$ 70. Limited Right of Action Granted by Statute.

In connection with the pecuniary liability of the state, we have already adverted to the limitation of responsibility in Anglo-American law. Beginning with the maxim that the King can do no wrong, which was received in the United States as applying to the state, a limited right of action has been gradually extended covering specific cases. The most important limitation of the right to sue the Crown or state is the principle that no action sounding in tort may be brought. This non-responsibility for tort has been explained on the ground that the state acts only through officers and that the tortious act of the officer is not the act of the government, which can neither commit nor authorize a wrong. This antiquated plea of ultra vires and other reasons for an immunity of the state from liability for tort have long been abandoned by the legislation, courts and jurists of Europe, and might well, with consequent enhancement of justice, be abandoned in Anglo-American law.

In England, the individual addresses himself to the grace of the King by suing out a Petition of Right which, when granted, opens the right to suit against the Crown as against any ordinary defendant. By statute, however, the right is also given to sue various Government Departments directly. In an opinion very similar to that of the French Tribunal of Conflicts in the Blanco case in 1873 it was said by Lord Cottenham in Monckton v. A-G. (1850), 2 Mac. & G. 402, 412: "The proceeding by petition of right exists only for the purpose of reconciling the dignity of the Crown and the rights of the subject, and to protect the latter against any injury arising from the acts of the former." The practice of suit by petition of right extends back to Edward III, and perhaps to Magna Charta, but its present use is regulated by the Petitions of Right Act 1860, 23 and 24 Vict., c. 34.2 Originally confined to suits for the recovery of specific prop

1 Robertson, Gea. S., The law and practice of civil proceedings by and against the Crown, London, 1908, Book I.

2 For the history of the Petition of Right see Anstey, T. Chisholme, Letter to the Right Hon. The Lord Cottenham . . . as to the law and practice of petition of right, London, 1845; Clode, Walter, The law and practice of petition of right, London, 1887, p. 6 et seq. See also W. Harrison Moore, The Crown as a corporation, 20 Law Quar. Rev. (1904), 351-362.

erty, it may now be defined as the process by which recovery is made from the Crown of property of any kind, including money, to which the suppliant is legally or equitably entitled, except in cases where this process is ousted by some statutory mode of recovery. The petition lies where land, goods or money have found their way into the possession of the Crown, and restitution is asked, or, in lieu thereof, compensation in money; or where the claim arises out of contract or for goods supplied to a branch of the government. The petition must rest on a recognized basis of legal or equitable relief, and must not be addressed to the mercy or good nature of the Sovereign. If the petition is granted, by the endorsement upon it of the fiat: "Soit droit fait aux parties,” the action proceeds in the regular courts having jurisdiction of a similar action between subject and subject. The petition has been held to lie for the recovery of lands, of incorporeal hereditaments, e. g., rent, of chattels real, of specific chattels or their value, of money claims in general not founded on tort, of liquidated sums due under contracts, of payment for services rendered, of unliquidated damages for breach of contract, of duties overpaid, of compensation under special statutes and other cases. Where the petition presents a case of mixed contract and tort, the fiat is usually granted to secure a decision whether the claim is really founded in contract or in tort or is severable. The petition will not lie where the claim is not founded in law or equity (as this term is understood in its technical sense in English law), nor where the claim sounds in tort, nor where it is brought for infringement of a patent,' for pensions to military, naval or civil officers of the Crown, nor for the distribution of an award received by the Crown from a foreign government for the benefit of its subjects. In this last re

Robertson, op. cit., 331. See definition of "relief" under § 16 of the Petition of Right Act, 1860.

* Feather v. The Queen (1865), 6 B. & S. 257, 294.
* The practice is fully discussed in the works of Robertson and Clode, supra.

* This has been altered by $ 29 of the Patent and Designs Act, 1907, 7 Ed. VII, 29, by which the Crown is made liable as is a subject for patent infringements. The development in the United States has been the same; up to 1910, the United States was not suable for patent infringement.

• The cases in support of this classification are noted in Robertson, op. cit., 330 et seq., and in Clode, op. cit.

spect, the practice of France and the United States is in harmony, and throughout it will be seen how closely in accord with English practice is that of the United States. The various British colonies have enacted statutes rendering the government, under definite limitations, subject to suit—some of them, like Canada (39 Vict., c. 27), adopting a rule of liability very similar to that of Great Britain, others granting more extended rights to the subject, as, e. g., some of the provinces of Australia, and others still, restricting the right to contract claims purely, as, e. g., Newfoundland (27 Vict., c. 8). There seems now to be little doubt that aliens can sue as well as subjects.?

In the United States, where the power to pay debts of the government has been held to reside in the legislature, it was only by a gradual process that a limited right of judicial relief against the state has been granted by statute. The fact that such permission to sue is a matter of grace finds expression in numerous limitations on the right of the claimant, and in various privileges granted to the government. For example, the jurisdiction of the Court of Claims, established in 1855, even though extended by several acts, particularly the Tucker Act of March 3, 1887 (24 Stat. L. 505), is limited to a few specific cases, and practically excludes all right of action for tort injuries. The government, moreover, always has the right of appeal, the individual in specified cases only. Where the claimant practices fraud in the statement, proof, establishment or allowance of his claim, the whole claim is forfeited.

Besides the legislative relief of claimants of certain kinds through Congressional standing committees, such as those on War Claims, Private Land Claims, and others, numerous classes of claims have by special statute, such as the French Spoliations Act, Indian Depredations Act and others, or by general act, such as the Tucker Act of 1887, been referred to the Court of Claims. Moreover, under the Bowman

1 The colonial statutes are set out in Appendix B of Clode, op. cit.

2 House Rep. 134, 43rd Cong., 2nd sess., p. 193 (Lawrence's Report on Law of claims against governments, 1875); Robertson, op. cit., 364.

3 R. S., $ 1086.

* The history of the court of claims and its jurisdiction is discussed in an article by Judge Richardson in 7 Southern Law Rev. (1882), 781-811, also printed in volume 17, Court of Claims reports, and reprinted separately; in a valuable article by Ernst Act of March 3, 1883 (22 Stat. L. 485), Congress or the head of an Executive Department may refer claims to the Court for the investigation and determination of facts, without entering final judgment. Among the states, many have established tribunals or boards to hear claims and report their findings to the legislature, while some give entire jurisdiction over claims to committees of the legislature. In only a few states is there a constitutional prohibition denying the suability of the state. The measure of liability assumed by the states follows somewhat that adopted by the federal government.

Aliens may sue in the Court of Claims on claims within the jurisdiction of the Court, provided their own government permits itself similarly to be sued by citizens of the United States. It has been judicially determined that this right is accorded to citizens of Prussia, Hanover, Bavaria, Switzerland, Holland, Spain, Belgium, Italy, Great Britain and a few other countries. Inasmuch as practically all governments permit themselves to be sued, and most of them in a far wider range of cases than those within the jurisdiction of the Court of Claims, this provision for reciprocity hardly acts as a limitation on the right to sue.

Under the Tucker Act, which in certain cases confers concurrent jurisdiction on the lower federal courts, the Court of Claims received its widest range of general jurisdiction. That act grants the Court jurisdiction on (1) all claims founded upon the Constitution of the United States or any law of Congress, except for pensions; (2) upon any regulation of an Executive Department; (3) upon any contract, express or implied, with the Government of the United States; or (4) upon claims for damages, liquidated or unliquidated, in cases not

Freund, Private claims against the state, 8 Pol. Sc. Quar., 625-652; in two articles by C. C. Binney, Origin and development of legal recourse against the U. S., 57 Amer. Law Reg., 372–395 and Element of tort as affecting the legal liability of the U. S., 20 Yale Law Journ., 95–110; in an article by Judge Atkinson, The United States Court of Claims, 46 Amer. Law Rev., 227–240. The jurisdiction of the Court is exhaustively reviewed by Justice Harlan in U. S. v. New York, 160 U. S. 598. The provisions relating to the Court are now found in the Judicial Code, 36 Stat. L.

1135 et seq.

R. S., $ 1068. See the numerous cases in which judicial determinations have been made of the right of citizens of certain foreign countries to sue in 2 Fed. Stat. Ann. 65 and Fichera v. U. S., 9 Ct. Cl. 254; see also Brown v. U. S., 6 Ct. Cl. 171.

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