Michigan Land & Lumber Co. v. Rust, 85 Michigan State Bank v. Hammond, 58, 65 Michigan, U. S. v., 25 Minnesota v. Hitchcock, 29, 41, 85, 115 Mississippi v. Johnson, 82 Nathan v. Va., 38 Neganab v. Hitchcock, 87 New Hampshire v. La., 23, 27, 113 New Jersey v. N. Y., 20 New York, Barney v., 95, 106 seq. New York, N. J. v., 20 New York, Oswald, Adm'r. v., 16 Noble v. Union R. Logging R. R. Co., 86 North Carolina, S. D. v., 24, 25, 26, 28 North Carolina v. Temple, 22 54, 57, 60, 81, 83, III, 117 Oswald, Adm'r. v. N. Y., 16 Parsons, Marye v., 96 Pegues, Humphrey v., 34, 41 Pelican Ins. Co., Wisc. v., 17, 20 Pennoyer v. McConnaughy, 77, 79, 84 Pennsylvania v. Wheeling Bridge Peters, U. S. v., 55, 60 Planters' B'k of Ga., B'k of U. Poindexter v. Greenhow, 22, 36, 49, 54, 112 Polybank, Kawanakoa v., 10, 21 Postal Tel. Co. v. Ala., 17, 29, 33, 115 Prentis v. Atl. Coast Line R. R. Co., 103 President & Dir'trs, etc. v. Ark., 43 Preston v. Walsh, 84 Prout v. Starr, 89, 90, 92, 115 Railroad Co. v. Alsbrook, 110 Rust, Mich. Land & Lumber Co. v., 85 Salem Flouring Mills Co. v. Lord, 53 Schild, Belknap v., 50 seq., III, 117 Schwalby, Stanley v., 16, 44, 65, State ex rel Newman v. Burke, 75 State, Pitcock v., 68, 88 39 Steele, La. v., 80 Tampa & A. R. R. Co., R. R. Com'n. v., IOI Temple, N. C. v., 22 Tennessee Copper Co., Ga. v., 24 Tennessee, M. & C. R. R. Co. Terrell, Case v., 40, 44 The Davis, 12, 38, 42, 62 The Parlement Belge, II, 13 Union R. Logging R. R. Co., United States, Carr v., 16, 44, 62, 64, 112 United States, De Groot v., 44 United States, Gratiot v., 43 United States v. Lee, 10, 22, 44, Van Stophorst v. Md., 16 Virginia, Hollingsworth v., 19 Virginia, McGahey v., 50, 96 Virginia v. Rives, 107 Walker, Reeside v., 43 Warner Valley Stock Co. v. Wesley, S. C. v., III Wheeling Bridge Co., Pa. v., 20 Wilder, U. S. v., 13, 38, 42 Wilson Distilling Co., Murray v., 59 Wisconsin, Hall v., 31 Wisconsin v. Pelican Ins. Co., 17, 20 Wood, Hunter v., IOI Young, Ex parte, 24, 31, 52, 90 seq., 105, 116, 117 Young v. S. S. Scotia, 13, 39 PART I. SUITS AGAINST THE STATE. CHAPTER I. THE GENERAL DOCTRINE. Its foundation. The doctrine that the sovereign power may not be sued without its consent came to the United States as a part of the English law. In Continental jurisprudence it has a more limited scope than in English law. Ultimately, the doctrine goes back to the Roman law. In England, at the time of the institution of royal courts, it would have been a strange proceeding for judges, acting for the king as his personal agents, to have attempted to hale him into court against his will. The principle of Roman law that "the will of the prince is law," though never adopted in England, influenced the judges to some extent, and served to give color to the immunity of the king. Later, the position of the courts became established, absolutism was definitely negatived by the rise of constitutional monarchy, and the king in his public capacity became differentiated from the king in his private capacity. The reason stated above then no longer applied to suits against him in his private character; and his immunity in this respect is simply a historical persistence.1 The same reason continued, on the other hand, for the immunity of the crown as the personification of the English state. It 1For a tendency, however, to accord a similar immunity to the president of the United States, as a matter of public policy in the case of the chief executive, see Goodnow: Admin. Law of the U. S., pp. 91, 435. is the ground upon which Justice Miller rested the doctrine of the non-suability of the state: "It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself in those courts."1 And it is this ground, namely, that a court, the agent of the state, cannot subject its creator to its jurisdiction, that is here adopted as the most obvious and sensible explanation. Acceptance of this foundation of the doctrine does not prevent the recognition of other reasons in justification. The courts commonly dwell upon the public policy and practical utility of the exemption. Justice Gray expressed this view admirably: "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 sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money in his treasury."2 Another view of the exemption, resting upon the eminent authority of Justice Holmes, is this: "A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends." This afforded a basis for the extension of the exemption to the territory of Hawaii: "As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which 1U. S. v. Lee, 106 U. S. 196. Briggs v. Light-boats, 11 Allen 157, 162. 'Kawanakoa v. Polybank, 205 U. S. 349. persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course, it cannot be maintained unless they are so. But that is not the case with a territory of the United States, because the territory itself is the fountain from which rights ordinarily flow." Now, this view of Justice Holmes was not necessary to the decision. The reason of public policy might well have been held to extend to a government exercising such broad powers as the territory of Hawaii. Or, the view might have been taken-which I think is the proper view of all local governments-that a territory stands, for its purposes, simply in the stead of the superior government, and is therefore entitled to the same immunity from suit, an immunity which the territory, not being made a mere municipal corporation, has not lost. Nor do I think that the view of Justice Holmes is sound. His statement that "a suit presupposes that the defendants are subject to the law invoked" is contrary to the position towards which he inclined in Missouri v. Illinois,1 and which Justice Brewer adopted in Kansas v. Colorado,2 that, in the main, there is no law governing the States in relation to each other, and that the supreme court must build up what Justice Brewer called an interstate common law." Law is necessary for jurisdiction; but, having jurisdiction, it is the function of a court to administer justice, according to law if any law is applicable, but to administer justice at all events. If no law is applicable, the court should, in the language of Justice Holmes, "be governed by rules explicitly or implicitly recognized" in the relations of the parties. The state, in its relations to individuals, may be considered as acting with reference to the ordinary principles of law. Certain it is that the courts are constantly applying to cases between the state and individuals, with certain modifications, the ordinary principles of law. And this is true, not only in the matter of contracts, but even in such cases as The Siren " 66 200 U. S. 496. 206 U. S. 46. 7 Wall. 152. |