That actions against the President personally for tort or crime, while he is in office, will not lie cannot be said to be certainly established; but at any rate, no such case is to be found in the American reports.*

However, the principle is well established that no public official or private individual can justify an act upon his part by a command of the President, or of the Governor of a State, which the President or Governor, by existing constitutional or statute law has not the authority to give. Thus in Little v. Barreme, the United States Supreme Court, speaking through Chief Justice Marshall, held that a commander of an American ship of war, in obeying directions of the President acted at his peril, and was personally responsible for the consequences of his act, if the President was not legally authorized to issue the instructions.

Marshall said: "I confess the first bias of my mind was very strong in favor of the opinion that though the instructions of the executive could not give a right, they might excuse from damages. I was much inclined to think that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors," which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which in general requires that he should obey 'Mechem, Law of Public Officers, p. 395. See also Cooley On Torts, 1st ed., p. 377.

52 Cr. 170.

The United States Constitution provides that the President of the United States shall be the Commander-in-Chief of the army and navy. Art. II, sec. 2.

them. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, or legalize an act which, without those instructions, would have been a plain trespass."

Again, in United States v. Lee," in which was sustained an action of trespass against certain military officers of the United States in possession of the Arlington estate, formerly belonging to Robert E. Lee, and claimed by the Federal Government as a result of certain confiscation proceedings, the court said: "This right [of the heirs of Lee to possession] being clearly established we are told that the court can proceed no further, because it appears that certain military officers, acting under orders of the President, have seized this estate, and converted one part of it into a military fort and another into a cemetery. It is not pretended, as the case now stands, that the President had any lawful authority to do this, nor that the legislative body could give him any such authority, except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the Government, however clear it may be made that the executive possessed no such power. . No man in this country is so high that he is above the law. No officer of the law may set that law at defiance, with impunity. All the officers of the Government, from the highest to the lowest, are creatures of the law and are bound to obey it."

It scarcely need be said, however, that, in determining the legal validity of orders given by the President, the courts will not attempt to control the political or other discretionary powers that are constitutionally vested in

106 U. S. 196.

him.

This is illustrated by the case of Durand v Hollins, which was an action of trespass against an officer of the United States Navy for destroying by bombardment from a naval vessel certain property at Greytown in Nicaragua. In defense, the defendant urged that he was an officer of the United States Navy and acted under orders of the President of the United States and the Secretary of the Navy. Upon demurrer, the court, in the course of its opinion, said: "The principal ground of objection to the pleas . . .. is that neither the President nor the Secretary of the Navy had authority to give the orders relied on to the defendant, and hence that they afford no ground of justification. The interposition of the President abroad, for the protection of the citizen, must necessarily rest in his discretion; and it is quite clear that, in all cases where a public act or order rests in executive discretion, neither he nor his authorized agent is personally civilly responsible for the consequences [quoting Marbury v. Madison, 1 Cr. 165]. . . . The question whether it was the duty of the President to interpose for the protection of the citizens at Greytown against an irresponsible marauding community that had established itself there, was a public political question, in which the Government, as well as the citizens whose interests were involved, was concerned, and which belonged to the Executive to detemine; and his decision is final and conclusive and justified the orders given through the Secretary of the Navy."

Actes de Gouvernement in French Law. In the present treatise the writer has not sought to extend his inquiries for illustrations of general principles of public law beyond the jurisprudential systems of Great Britain and the United States. It is, however, worth while to make at least a reference to certain respects in which the French 4 Blatch. 451 (1860).

doctrine as to the suability of State functionaries is different from that of American and English law."

First of all it is to be observed that the French law does not hold personally responsible, in civil damages, officials, who, while acting as officials, nevertheless act without legal right. The State, in such a case, may be held liable, but not the individual. Mr. Walton points out that this doctrine is based upon a juristic theory more subtile than that of the English doctrine of principal and agent or master and servant. "The State is not a master who gives instructions to his servants. It is a moral [corporate] person which, like other moral [corporate] persons, acts by its 'organes'. . . . When a physical person employs a servant there are two persons and two wills to be considered. But when the organs of a moral person act for it, and act within the range of the operations prescribed by law for the moral person, we may disregard altogether the personality of these organs. The will which they manifest is not their will, it is the will of the moral person."

When a French functionary is not acting officially he is personally responsible, civilly and criminally, for his acts, but it is often a difficult matter for the courts to determine what is, and what is not a fait personnel.

The French judicial tribunals exercise the right to refuse to impose penalties upon individuals for violations of administrative ordinances which are illegal because beyond the legal competence of the authorities issuing

'The observations which follow are largely based upon two excellent articles, by J. W. Garner, entitled "Judicial Control of Administrative and Legislative Acts in France," published in The American Political Science Review, November, 1915 (vol. IX, p. 637), and "French Administrative Law" in the Yale Law Journal, April, 1924; and an article by F. P. Walton, entitled "The French Administrative Courts and the Modern French Law as to the Responsibility of the State for the Faults of its Officials: A Comparison with the Common Law," which appeared in the Illinois Law Review, October-November, 1918. See also F. J. Goodnow, Comparative Administrative Law, vol. II, pp. 149-177.

them. The Council of State (Conseil d'État) also exercises the right to annul administrative orders if deemed ultra vires. Until recently, however, the Council of State made a distinction between simple ordinances emanating from the President, which did not, and "ordinances of public administration" (règlements d'administration publique) which did have to be submitted to the Council for its advice before promulgation. Only the first of these classes of ordinances, it held, might be annulled for excess of power. In 1907, however, this distinction. was abandoned by the Council of State, and both classes of ordinance held subject to annulment if in excess of power. "The far-reaching effect of the decision can only be fully appreciated," says Garner, "when we remember that a very considerable and important part of French legislation today is being enacted not by the legislature but by the President in the form of ordinances of public administration, issued in pursuance of legislative delegation. In recent years there has been an increasing tendency on the part of the legislature to abdicate its functions and to delegate its powers of legislation to the executive. Almost every important act of parliament today concludes with the familiar clause: 'An ordinance of public administration shall determine the measures proper for assuring the execution of the present law.'

The French courts still refuse to question the validity of Acts of Parliament upon the ground of their incompatibility with the provisions of the "Constitutional Laws," or for any other reason. And, as regards executive acts, there are still several classes which wholly escape from judicial control. Thus, as might be expected, and as is generally true in all constitutional States, the courts do not attempt to control such acts of the President as the summoning and closing of sessions of Parliament, the dissolution of the Chamber of Deputies (with the