CHAPTER XXV

THE SUABILITY OF THE SOVEREIGN

CLOSELY Connected with the sovereignty of the State are the matters of the amenability of the State itself or of its chief executive to judicial process, and the circumstances under which subordinate officers or private individuals may plead, in justification of otherwise illegal acts-tortious or contractual-executive authorization by the State. The first of these questions we shall consider under the title "The Suability of the Sovereign"; the second under the rubric "Acts of State."

As regards the suability of the Sovereign the distinction between the State, as the sovereign political person or entity, and its Government is to be kept steadily in mind, as is also the distinction between the chief executive of the State, often termed its "sovereign," and the State itself.

Non-Suability of the Chief Executive of the State. Historically, the conception of Sovereignty first attached itself to the ruling monarch rather than to the State, and it was not until the rise of modern republican governments with popularly elected chief executives that publicists began to draw a clear line of distinction between the status and powers of the ruler and those of the State he represented. Indeed, at the present time, according to the forms and phraseology of English law, sovereignty inheres in the King; he is the fountain, the original repository of all legal justice; it is his will, acting through Parliament, that creates law; and it is personal allegiance to him that British citizenship connotes.

As is well known, English public law rests, historically, upon feudal law, and it early became a principle of that law that a lord could be sued only by his own peers. Consequently, when the head of a Kingdom obtained a status superior to that of all the other feudal lords, there were no peers who might sue him, and, with the rise of monarchical absolutism this deduction from feudal law, became reinforced by doctrines of divine or patrimonial right.1

Blackstone, in his Commentaries, states the established rule, together with its reasons,-a rule which has not been since changed,-as follows:

"Our King is equally sovereign and independent within these his dominions, as any emperor is in his empire, and owes no kind of subjection to any other potentate upon earth. Hence it is, that no suit or action can be brought against the King, even in civil matters, because no court can have jurisdiction over him. For all jurisdiction implies superiority of power: authority to try would be vain and idle, without any redress, and the sentence of a court would be contemptible, unless that court had power to command the execution of it; but who, says Finch, shall command the King? Hence it is likewise, that by law the person of the King is sacred, even though the measures pursued in his reign be completely tyrannical and arbitrary: for no jurisdiction upon earth has power to try him in a criminal way; much less to condemn him to punishment. If any foreign jurisdiction had this power, as was formerly claimed by the Pope, the independence of the Kingdom would be no more: and, if such a power were vested in any domestic tribunal, there would be an end of the constitution, by destroying the free agency of

1There is some authority for the statement that the Saxon Kings were suable, and that this rule continued until the time of Edward I.

one of the constituent parts of the sovereign legislative power."

As is well known, this doctrine that "the King can do no wrong," that is, no legal wrong, is, and for many years has been supplemented by the constitutional practice that the King can exercise his governing powers only through some adviser or public official who thereby assumes political responsibility for the advice he gives and personal responsibility, civil and criminal, for the act, which responsibility may be enforced in the ordinary courts, and he cannot justify an act, otherwise illegal, by pleading the command of the Crown. Furthermore, in matters not of tort, the citizen legally aggrieved by the act of his State is permitted, even though not as a matter of strict legal right, that is, ex debito justitiæ, to obtain relief, in most cases, by petition of right or monstrans de droit.

Whether or not the Chief Executive of a popular or representative government has an immunity from judicial control with respect to his personal acts has not been certainly determined in the United States, but it appears to be reasonably certain that this is the case. Of course, in his case, such an immunity cannot be rested upon the premise that he has a divine or historical or patrimonial right of absolute rulership, nor upon any basis of feudal theory; rather, the doctrine, so far as it has been asserted, has been upon grounds of practical expediency or of necessity. This is shown by the reasoning of Chief Justice Chase in an opinion rendered in the case of Mississippi v. Johnson, in which a motion for leave to file a bill of injunction had been sought by the State of Mississippi to restrain President Johnson from executing in the State certain acts of Congress asserted to be unconstitutional in character. The Chief Justice said: "The Congress

24 Wallace 475.

is the legislative department of the Government; the President is the Executive Department. Neither can be restrained in its action by the Judicial Department; though the acts of both, when performed, are, in proper cases, subject to its cognizance. The impropriety of such interference will be clearly seen upon consideration of its possible consequences. Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the Acts of Congress, is it not clear that a collision may occur between the Executive and Legislative Departments of the Government? May not the House of Representatives impeach the President for such refusal? And, in that case, could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would not the strange spectacle be offered to the world wonder of an attempt by this court to arrest proceedings in that court? These questions answer themselves. . . . We are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.

"It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an Act of Congress by Andrew Johnson is relief against its execution by the President. A bill praying an injunction against the execution of an Act of Congress by the incumbent of the

presidential office cannot be received, whether it describes him as President or as a citizen of a State."

In the trial of Aaron Burr for treason Chief Justice Marshall, who presided, is reported to have said: "I suppose it will not be alleged in this case that the President ought to be considered as having offered a contempt to the court in consequence of his not having attended, notwithstanding the subpoena was awarded agreeably to the demand of the defendant. The court would indeed not be asked to proceed as in the case of an ordinary individual." And again, in the same case, Marshall said: "In no case of this kind would the court be required to proceed against the President as against an ordinary individual. The objections to such a course are so strong and obvious that all must acknowledge them." 3

This immunity from judicial control thus predicated of the President has been ascribed in some of the States of the American Union to their respective Governors. In other States it has been denied. As to compelling the Governor by mandamus to perform a purely ministerial act the State courts are in conflict. See 6 L. R. A. n. s. 750, and 32 L. R. A. n. s. 355. And the same is true as to enjoining action upon his part. Cf. Burdick, Law of the American Constitution, p. 127, note 3.

Goodnow in his Principles of the Administrative Law of the United States (p. 108), says: "What has been said with regard to the remedies against the action of the President may be repeated with regard to the remedies against the action of the Governor. The Governor is held, for example, not to be subject to the process of the courts, but he may be personally liable after the expiration of his term of office for acts done in office. (Druecker v. Salomon, 21 Wis. 621.) The State Courts also are almost as careful not to come into personal conflict with the Governors as the United States courts are not to come into personal conflict with the President. The better rule is that they will not attempt to exercise a control over him personally. (People v. Morton, 156 N. Y. 136; Darrett Petitioner, 32 Maine 508.) The only exception to this rule is in the case of the quo warranto. There are several cases where the quo warranto has been issued to the Governor. (Atty.-Gen. v. Barstow, 4 Wis. 567; Morris v. Bulkley, 61 Conn. 287.) The courts have, however, very little hesitation about declaring an act of the Governor, in which it would appear that he exercises considerable discretion, null and void. (People v. Curtis, 50 N. Y. 321; People v. Brady, 56 N. Y. 182; Dullam v. Wilson, 53 Mich. 392; People v. Platt, 50 Hun. 454.) The courts will not, however, interfere with acts of the Governor which they regard as political in character."