would seem to furnish a negative reply; even if the famous doctrine of the universal competence and completeness of the common law, above referred to, were not itself a negative answer. former will hardly be answered in the affirmative by any competent critic who ponders for a little the difficulties which surround the delicate task of rightly interpreting that subtle but all-important thing, public opinion. Assuredly, it is no easy task for a judge, when confronted with a case for which there is no precedent, to formulate a decision which shall commend itself to the sense of justice not merely of the litigants before him (who may be considered to be prejudiced), but to the right-thinking members of the community who may be litigants in the future. And, in performing this difficult task, can he have any better guide than the rules of conduct which those right-thinking citizens have already adopted as the result of that subtle process of experiment in the laboratory of life which we call 'practical experience'? A judge must indeed have confidence in his own wisdom beyond the measure of ordinary modesty who will deliberately defy such a guide. That would be to apply arbitrium, not interpretatio.

If the suggestion thus imperfectly stated be at all near the truth, the scope of judiciary law (perhaps even of parliamentary legislation, though that is another story 37) is fairly indicated. A tribunal is bound to follow precedent where it is clear and authoritative, at least unless the precedent is manifestly founded on a mistake, or the conditions have changed; because certainty is even more important in the administration of justice than wisdom. Perhaps the most remarkable testimony to this truth which comparatively recent years have produced is the changed attitude of the House of Lords toward its own former judgments. Down to the middle of the nineteenth century,38 the House declined to be bound by judicial decisions, even by its own. The doctrine is now the other way; and the House of Lords has thus avowedly given

A. C. 727, 733 (1887), and the earlier dictum of Lord Blackburn in Speight v. Gaunt, L. R. 9 A. C. 1, 19 (1883).

* The writer has suggested grounds for thinking that the limits of parliamentary legislation in civil law are hardly different, in his SHORT HISTORY OF POLITICS (Dent), pp. 128-29.

38 The critical decisions are Thellusson v. Rendlesham, 7 H. L. Cas. 429 (1859); Att.-G. v. Dean and Canons of Windsor, 8 H. L. Cas. 369 (1860); and Beamish v. Beamish, 9 H. L. Cas. 274 (1861).

up 39 its claim to combine its judicial and legislative functions in a single session. But that fact does not relieve the House of Lords (or any other tribunal) from the duty of deciding a case, on the ground of want of precedent or statutory provision. Such a refusal would be a gross breach of duty. In such a case the Court turns, as has been suggested, to the deep well, not of 'public opinion' in the speculative sense, but of public conviction, as evidenced by the conduct of the most upright and experienced members of the community. To appeal to an ideal above or beyond this standard, is to run the risk of creating a precedent which will be regarded with dislike, as ‘crotchetty,' or 'unpractical'; to act in deliberate defiance of this standard is to invite a reaction which, in its desire to abolish an unpopular decision, may proceed to disastrous lengths.

Having thus considered some of the chief characteristics of English Civil Law, we may proceed to ask ourselves how far they indicate and satisfy the scope and functions of law generally.

Edward Jenks.


(To be continued)

39 The constitutional importance of the change has hardly received the notice it deserves. The legislative functions of the Great Council have never been formally abolished. Were they finally abandoned in Beamish v. Beamish?



UCH ink has flowed and many hot words have been spoken concerning the iniquity of states which break their contracts, and particularly of those which repudiate their bonds. The matter of state liability for tort has attracted comparatively little interest.1 Circumstances have not pushed it to the front until recently. Twenty or thirty years ago our State and Federal governments discharged few functions of an industrial nature. The citizen might occasionally enter into business relations by lending them money, but he rarely met them in commercial competition. Now the United States is operating a great canal, building a railroad in Alaska, competing with the express companies, threatening to take over the telephone and telegraph systems, and about to launch a merchant marine. Most State administrations have similarly extended their activities. With every advance of the sovereign into industrial fields, determination and enforcement of its non-contractual liabilities become more and more important.

"The King can do no wrong" is a preliminary stumbling-block. These words give rise to a common belief that the government cannot be guilty of a tort. For several reasons this idea must be dismissed. The maxim is pointless where there is no king. Then, like all maxims, it is an elusive creature, worth much less than face value. Blackstone deals with it as a smug statement that the royal conscience is sensitive and will not suffer wrong to go unredressed.3 Finally, there are plenty of decisions to the point that a citizen may acquire legal rights against a sovereign by reason of the latter's tort.1

1 For convenience, the word "state" is not capitalized herein except where it refers to one of the United States. The writer has also used certain other words in fixed and perhaps arbitrary senses. A state is said to be "liable" to any individual who has a legal right against it; to be "responsible" or "answerable" to him only if, in addition to the right, he has an adequate remedy.

2 Langford v. United States, 101 U. S. 341 (1879).

3 BL. COMM., bk. 3, ch. 17.

4 The Siren, 7 Wall. (U. S.) 152 (1868); Metz v. Soule, etc. Co., 40 Iowa 236 (1875); Coster v. Mayor, etc. of Albany, 43 N. Y. 399, 407 (1871); and see Goreley v. Butler, 147 Mass. 8, 10, 16 N. E. 734 (1888).

That American jurists were getting this idea into their heads as early as 1855 ap

But even if we suppose the most indisputable kind of wrong breach of contract — a really substantial difficulty remains. Common law provides no remedy against the king or the government. So far as the evidence goes, we must assume that the Sultan of Johore, masquerading as plain Albert Baker, made a valid and binding offer for the heart and hand of Miss Mighell. He certainly did not live up to the terms of that offer. Yet when the lady sued for breach of promise the court had to deny recovery. This was simply and solely because the defendant was a royal person, not at all because of the merits of the case. Plaintiff might have won had she been able to prove that the Sultan, after his metamorphosis from Prince Charming to a Prince of the Malay Peninsula, lost his throne and became an ordinary citizen. We are not afflicted with the vagaries of a personal sovereign. Decisions do strike home to us, though, which hold that a government may operate a railroad or a telegraph line without being answerable for negligence."

pears from the famous case of the armed brig General Armstrong. During the War of 1812 the ships' boats of a powerful British squadron attacked this little vessel in the neutral Portuguese harbor of Fayal. The Portuguese authorities gave no assistance, but the privateersmen were not too proud to fight a very brilliant action, beating off three assaults in which the assailants lost nearly two hundred men. Then the Britishers brought their guns into play, whereat the Americans, seeing that the jig was up, scuttled the General Armstrong and abandoned her. Portugal, having failed in its duty of protection, was liable to the privateer's owners. The liability could, however, be enforced only through diplomatic channels. After long delay the United States submitted the dispute to Louis Napoleon as arbitrator and accepted his adverse award. The claimants thus lost their right against Portugal. Asserting that the award was wrong and that the government had selfishly sacrificed the claim to its own interests, they turned to Congress for indemnity. The case was referred to the newly established Court of Claims. Two questions arose. Had the United States bungled? and, granting this, Was it liable? The court split on both points, first deciding two to one for the claimants and then on rehearing two to one against them. 2 Rep. Ct. Cl., 1st sess., 35th Congress, No. 149, pp. 52, 154, 165, 189 (1858); The Case of the Private Armed Brig of War General Armstrong, reported and edited by Sam C. Reid, Jr., 1857. On the question of liability, Charles O'Conor's argument and the dissenting opinion of Gilchrist, C. J., are well worth reading. Further history of this remarkable claim appears in 2 MOORE, INTERNATIONAL ARBITRATIONS, 1071 et seq., and 18 GREEN BAG, 331. 'Mighell v. Sultan of Johore, [1894] 1 Q. B. 149. This is a case in international, not municipal, law. But of course the same result would have followed with the King of England for defendant.

• Munden v. Duke of Brunswick, 10 Q. B. 656 (1847). "Acts of state," however, will not rise to haunt a sovereign who abdicates or is deposed. They create no personal liability. Hatch v. Baez, 7 Hun (N. Y.) 596 (1876).

'The Queen v. McLeod, 8 Can. Sup. Ct. 1 (1882); Bainbridge v. Postmaster-General, [1906] 1 K. B. 178.



Many lawyers probably accept this lack of remedy against the state on the assumption that it is a common attribute of sovereignty the world over. That is not so. Few important nations in Europe close their courts to individuals having claims against the administration. Liability is sometimes limited," but this is not the same thing as an absolute denial of remedy. True enough, any right to sue a sovereign must rest on that sovereign's consent. Yet the practical difference is tremendous between the attitude of our law, which grants such consent only rarely, and of the civil law, which gives it pretty much as a matter of course.

Although the writer's text is Professor Maitland's remark that "it is a wholesome sight to see 'the Crown' sued and answering for its torts," 10 much of the following comment applies equally to contractual remedies also. The whole common-law rule of state immunity is unnecessary. Even if a full remedy were given private claimants the courts would enforce only a restricted liability. That is exactly what has happened in respect of municipal corporations, which wear no magic cloak of regality.

Further, a rigid application of the old rule under modern conditions brings most undesirable results. The hardship inflicted receives emphasis from the fact that states are rapidly assuming the

8 See 2 GOODNOW, COMPARATIVE ADMINISTRATIVE LAW, 161 et seq.; also the following cases under the abandoned and captured property acts of our Civil War period: Brown v. United States, 5 U. S. Ct. Cl. 571 (1869) (Prussia); Lobsiger v. Same, id., 687 (1869) (Switzerland); Rothschild v. Same, 6 id., 204 (1870) (France); Dauphin v. Same, id., 221 (1870) (France); Brown v. Same, id., 171, 193 (1870) (Holland); Molina v. Same, id., 269 (1870) (Spain); DeGive v. Same, 7 id., 517 (1871) (Belgium); and Fichera v. Same, 9 id., 254 (1873) (Italy).

The early Scotch kings were not irresponsible rulers. J. A. Lovat-Fraser, "The Constitutional Position of the Scottish Monarch Prior to the Union," 17 L. Quart. REV. 252. There is still apparently more freedom of private suit against the Crown in Scotland than in England. Somerville v. Lord Advocate, 30 Scot. L. R. 868, 884 (1893). It seems likely that a tort action would not lie, no matter on what ground it was based. Smith v. Lord Advocate, 35 Scot. L. R. 117 (1897).

A citizen secures from the courts only legal recognition, not legal enforcement, of his rights against the state. BROWN, THE AUSTINIAN THEORY OF LAW, 194; SALMOND, JURISPRUDENCE, 3 ed., 202. But he is practically sure of appropriate relief if the decision be in his favor.

9 See, for instance, the distinction between the acts of special agents and of regular officials in the SPANISH CIVIL CODE, art. 1903; 2 GOODNOW, op. cit., 162.

10 "The Crown as Corporation," 17 L. QUART. REV. 131, at p. 142. As to the United States, "it is difficult to see on what solid foundation of principle the exemption from liability to suit rests." Miller, J., in United States v. Lee, 106 U. S. 196, 206 (1882).

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