§ 8. Irresponsibility of the sovereign.

That the sovereign could not be sued in his own courts is found adjudicated in our earliest books; disposed of briefly even then, since in any time that must always be held a self-evident proposition. The case of the Abbot of Saint Searle to that effect is found reported as follows in Y. B. 30 Ed. I. 170 (1302): To a writ of right brought against the Abbot of Saint Searle it was answered that the tenements were seized into the King's hands by reason whereof the Abbot could not and ought not to answer. WESCOT.-Although the tenements are seized into his hands you are tenant of the freehold; judgment if you ought not to answer. BRUMPTON. He ought to answer; but inasmuch as we cannot entertain the suit whilst the tenements are seized, I advise you who wish to sue for them to send to Court and purchase permission; for we will hold no such plea before we are commanded to do so.

The rule is as positive in the law of England today as ever it was. It is perhaps difficult to put a more extreme case than the actual case arising in the Goods of George III., Addams, 255 (1819). This was an application to the Prerogative Court of Canterbury for its process calling upon the Procurator General, proctor for and on behalf of the King George IV. as heir and successor of his late majesty King George III. to see the last will and testament of his late majesty propounded and proved in solemn form of law; promoted and brought by her highness Olive, daughter of the Duke of Cumberland, the only legatee named in the said will. This application the court refused to entertain utterly, as well it might.

Sir JOHN NICHOLL delivered the judgment; he said: To proceed by this sort of process against the King himself; to cite him personally; to put him in contempt; to do certain acts in pain of his contumacy-was too extravagant even to be attempted; and therefore the citation is prayed against the King's proctor. But here again exactly the same difficulty occurs both in principle and practice, either the King's proctor does or does not represent the sovereign. If virtute officii he represents His Majesty, he has the same privileges; nor can he be put in contempt, and proceeded against in poenam. If he does not officially quoad hoc and so as to be binding upon, represent the sovereign, this process is nugatory. Why is it to be supposed that the Legislature meant in future to submit the reigning successor to the ordinary jurisdiction to which no sovereign had ever before been subjected, and which would be a departure from and violation of the constitutional prerogatives of the crown? The King can do no wrong; he cannot constitutionally be supposed capable of injustice. If he is properly applied to in the forms prescribed by the constitution no doubt ought to exist that real justice will be done.5

5 IRRESPONSIBILITY OF THE SOVEREIGN.-Goods of George III. Addams 255; Tobin v. Reg., 16 C. B. N. S. 310; Beers v. Arkansas, 20 How. 527; Russell v. United States, 182 U. S. 516; United States v. Surety Co., 74 Fed. 145; Comer v. Bankhead, 70 Ala. 493; Auditor v. Davies, 2 Ark. 494; Nougues v. Douglass, 7 Cal. 65; Mulnix v. Mutual Ins. Co., 23 Colo. 71; State v. Hartford, 50 Conn. 90; Mfg. Co. v. Taylor, 3 MacA. 4; Bloxham v. Florida R. R., 35 Fla. 625; Powers v. Bank, 18 Ga. 658; Holmes v. Mattoon, 111 Ill. 27; Crawfordsville v. Irwin, 46 Ind. 439; Metz v. Soule, 40 Ia. 236; Regents v. Hamilton, 28 Kan. 376; Tate v. Salmon, 79 Ky. 540; State v. Jumel, 38 La. Ann. 340; Weston v. Dane, 51 Me. 461; State v. Bank, 6 G. & J. 205; Railroad v. Commonwealth, 127 Mass. 43; Locke v. Speed, 62 Mich. 408; State v. Torinus, 22 Minn. 272; Edwards

In the name of the King, the fountain of Justice, the King cannot by his own writ command himself. But the broader reason is, that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sov ereign, to subject him to repeated suits as a matter of right at the will of any citizen, and to submit to the judicial tribunals and control and disposition of his public property, his instruments and means of carrying on the government in peace and war, and the money in his treasury.

These principles go far; to such an extent that they must be taken into the account in everyday affairs in the commonest transactions. An instance in point is Lodor v. Baker, Arnold & Co., 39 New Jersey Law, 49 (1876). This was an attachment process against a non-resident debtor. The only property in New Jersey claimed for attachment was the sum of $1,000, in the hands of the Treasurer of the State alleged to be due from the state of New Jersey to the debtor. A motion was made to quash the writ on the ground that the claim which the defendant, the debtor, had against the state could not be attached. The argument made upon the motion was that this garnishment proceeding would in its working out involve a suit against the state of New Jersey. And

v. Lesueur, 132 Mo. 410; State v. Mayes, 6 Cush. (Miss.) 706; State v. Collins, 21 Mont. 448; People v. Butler, 2 Neb. 6; Torreyson v. Board, 7 Nev. 19; Sargent v. Gilford, 66 N. H. 543; Dock & Imp. Co. v. Trustees, 32 N. J. Eq. 434; O'Hara v. State, 112 N. Y. 146; Clodfelter v. State, 86 N. C. 51; State v. Board of Public Works, 36 Oh. St. 409; Schaffer v. Cadwallader, 36 Pa. St. 126; In Re State House Fund, 19 R. I. 393; Lowry v. Thompson, 25 S. C. 416; Moore v. Tate, 87 Tenn. 744; State v. Snyder, 66 Tex. 701; Board of Public Works v. Gannt, 76 Va. 461.

obviously, this was so; since the process must go against the state in order to enforce the payment of its claim against the state for the satisfaction of the creditor of the debtor.

The language of Mr. Justice VAN SYCKEL was emphatic: The state enjoys the immunity from suits as one of the essential attributes of sovereignty, it being an established principle of jurisprudence in all civilized nations that the sovereign cannot be sued in its own courts without its consent. New Jersey has never consented to surrender this prerogative right, and, therefore, if it can be shown that this proceeding will involve the garnishee in litigation, the attempt to interfere with funds in the treasurer's hands is unwarrantable. law cannot be guilty of the inconsistency of inviting the suitor to attach funds of this nature, and at the same time deny him every remedy to enforce his lien. The right to attach must necessarily involve the right to compel the state to appear as party defendant at the suit of a private individual. This credit not being attachable, the writ is quashed.

The

These, then, are fundamental things. That the state cannot be sued seems at first a technical result; that the law has tied its own hands; and so has lost its supremacy. But does it not upon consideration seem an untechnical doctrine; for is it not brute force that dictates it rather than subtle logic? The state is sovereign not because it may be, but because it must be; the citizen is subject, not because it is law, but because it must be so. These things are not possible in theory; to have a state without a sovereign or a sovereign without subjects.

However complex the state, somewhere there

must reside sovereignty; whatever the form of the gov ernment, all must be subjects of that sovereign, however free they may be. These things must be so, in fact, because they are based upon the power somewhere, without which the whole system would be disintegrated. In last analysis these are reasons for the rule that the sovereign is irresponsible. Therefore, this is a rule without exceptions.

The gloss of this section, that the state is not responsible, as an elementary principle has many applications in the practical administration of the law. Whenever anything gets into the hands of the state, there it must remain, for no process of law can take it out. So well is this understood, that cases are few that discuss the issue when presented in so abstract a form. The state will return the property when it seems best to do it, no sooner. Claims against the state of other sorts have no better standing. The state seizes property for its uses; the state will pay therefor when it feels so inclined, no sooner. Since this also is well understood, claimants again are few who seek to get reparation by suit against the state. For the same reason there is no obligation which the state may not repudiate; debtors of the state are paid if the state wills, not otherwise. The consequence most noteworthy of all in this for administrative law must be apparent to any observer of these conditions. The administration has a free hand to work out its own devices; but the administrative officer has no freedom of action, except action within the law. Since the administration is irresponsible, the officer must be respon sible.

6 STATE ACTION.-Tobin v. Reg., 16 C. B. (N. S.) 310; Raleigh