"SUING THE STATE."

[From a Paper read before the Kentucky State Bar Association.]

BY GEO. M. DAVIE, ESQ.

If one happens to be in Washington during a session of Congress, he cannot but be surprised at the great number of " claim brokers" and " Parliamentary agents" there congregated. He will see lobbyists of all colors and degrees, and who are bent on all manner of designs against the Government. Claims, some of them just, no doubt, but others of a character so extravagant and far-fetched that they could not stand judicial investigation for an instant, are "put through," often by their titles, in a manner which seems inconsistent with accurate justice. Each member appears to be the father or guardian of a family of bills, and is on the watch for the most opportune moment to " call them up," possibly in the absence of those whom he thinks might oppose them. For, in Parliamentary practice, different from judicial proceedings, it seems to be considered not only proper, but enterprising," to secure the passage of claims without notice to the opposition.

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No member, be he ever so diligent and faithful to the public interests, can pretend to investigate, understand, watch over and keep up with the thousands of claims which are introduced at each session, and each of which is sought to be successfully engineered" by its "friends." In the rush of business, there is neither time nor opportunity to adequately consider them; and it is constant rumor that heavy claims are slipped through” that would shock the sense of justice if the facts against them were made known by an open trial.

Thus Congress, in full operation, has often the appearance of a place where everybody speaks at once and nobody listens; where claims are heard ex parte; where judgments are by default; and where the deliberate man is dusted in the distance. To such an extent is this recognized, that Congress is spoken of as the National Claims Mill, and its members as mere "Claim Agents." This is, at present, the national mode of suing the State.

If one attends a meeting of a State Legislature, the same spectacle is witnessed, on a proportionately smaller scale. The mem

ber comes prepared with certain claims against the States, or is intrusted with them by his friends in the lobby. Under the zeal of advocacy, and the desire to be considered efficient, he presents these claims as "bills," nurses them through the committees, and works them in by sharp tactics, trading votes, or by some of the other strategies familiar to statesmen. Without securing the proper influences, claims, however meritorious, are liable to be neglected or rejected; while, with "the influence properly attended to," claims, however objectionable, may often be "put through."

The result is unfortunate in a double way. Many claims that are unjust or excessive are allowed, to the great injury of the State; while many just claims are rejected, to the great wrong of the citizen. Is it any wonder that modest claimants often give up and retire in despair, and that questionable lobbyists flock and flourish. That such a system is a most crude and imperfect, and, indeed, pernicious, mode of settling the disputes of the citizen with the State, is apparent; and that it is far inferior to the system of judicial investigation, both in fairness and accuracy, is equally evident.

Yet, singular as it may seem when thoughtfully considered, this is the established and accepted American mode of determining claims against the State. To these dubious processes every one must resort to obtain justice from the Commonwealth; and upon them the Government must depend for protection from false or extravagant demands.

Under this system, the loose legislative committee takes the place of a Court. The whisper of the lobbyist is the argument of counsel. The rambling talk of the committee-room is the trial, in which the committeeman is often the advocate or the enemy as well as the Judge. Then, too, the hurry of the session and the excitement of politics forbid due deliberation.

To arrive at justice in controversies between individuals, or where the State sues an individual, there is provided the learned and unbiased Judge, the dignified Court, full notice to both sides, the introduction and analysis of the evidential facts, a deliberate and impartial trial, and an appeal to a full bench to correct possible errors.

But, when the claim is one by a citizen against the State, all is changed. A session of the Legislature must be awaited. The

claim must be introduced as a bill. It must be referred to an untrained committee of accidental composition. No time, place or rule is fixed for preparation or introduction of evidence. There is often but a hurried, gossipy, and not very dignified discussion, perhaps without notice to the other side. Neither learning nor impartiality are required, and the bill is thus "put through," or "sat upon," or "pigeon-holed" (to use the technical terms of the system), according to the activity of the lobby, the distribution of influences, or as fortune may be for or against it.

The origin of this anomalous state of things, in which the Legislature is made to act as a Court, is attributable to a maxim, prevalent in American jurisprudence, that "the State, being a sovereign, cannot be sued."

Applying this maxim, the Courts decline to take jurisdiction of claims against the State, and turn them over to the Legislature and the lobby.

Tracing its origin, we find that prior to the reign of Edward I. (about a. D. 1300) the law of England seemed to be that the Courts should be open to all, and that remedial writs might issue against the King as against any other person. (See Chisholm v. Georgia, 2 Dallas, 460; United States v. Lee, 106 U. S.) The form of the writ is given by Bracton: "Command Henry, King of England, etc.;" and Bracton says that "by law the King, in receiving justice, should be placed on a level with the least person in the kingdom." (See Chisholm v. Georgia, 2 Dallas, 460.)

During the long reign of Edward I. the power of the Crown had increased, until that monarch asserted himself as above the reach of the law. "He took care," says Hume, "that his subjects should do justice to each other, but he desired always to have his own hands free in all his transactions, both with them and his neighbors." (Vol. I. 306.)

Under the despotic reigns of the Tudors and the Stuarts the fictions of the divine right of the King, his inability to do wrong, and his immunity from suit, had become the accepted law of England; and it was still considered in force when the accomplished courtier Blackstone wrote his commentaries, to be presented to King George III., and for which he received a handsome reward and a Judgeship from that despoticallyinclined monarch.

In those commentaries, first published in 1765, and which have had a very powerful effect in shaping American law, treating of the "King's prerogative," Blackstone says:

"First, then, of the royal dignity. Under every monarchical establishment it is necessary to distinguish the Prince from his subjects, not only by the outward pomp and decorations of majesty, but also by ascribing to him certain qualities as inherent in his royal capacity, distinct from and superior to those of any other individual in the nation. For, though a philosophical mind will consider the royal person merely as a man appointed by mutual consent to preside over many others, and will pay him that reverence and duty which the principles of society demand, yet the mass of mankind will be apt to grow insolent and refractory if taught to consider their Prince as a man of no greater perfection than themselves. The law therefore ascribes to the King in his high political character not only large powers which form the prerogative, but likewise certain attributes of a great and transcendent nature, by which the people are led to consider him in the light of a Superior Being and to pay him awful respect. Hence it is that no suit or action can be

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brought against the King, even in civil matters."

Speaking further of this prerogative of royal dignity, Blackstone says:

"The law ascribes to the King the attribute of sovereignty. He is sovereign." This prerogative, he further says, is "in its nature singular and eccentrical; that is, it can only be applied to those rights and capacities which the King enjoys alone, in contradistinction to others, and not to those which he enjoys in common with any of his subjects. For if once any prerogative of the Crown could be held in common with the subject, it would cease to be a prerogative any longer.'

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It will be observed that this immunity from suit is based upon the idea of that "royal dignity" and "awful majesty" which is one of the prerogatives of the King. It is classed by Blackstone with the other royal characteristics: that the King is by Divine right; that the King is perfect, and that the King can do no wrong.

It is upon this ground of dignity that the immunity of the sovereign from suit still rests in England, as will be seen from the Lord Justice's opinion in Queen v. Commissioners, Law Reports, 7 Queen's Bench, 394, decided in 1871:

"When a duty has to be performed (if I may use that expression) by the Crown, this Court cannot claim, even in appearance, to have any power to command the Crown; the thing is out of the question. Over the sovereign we can have no power."

This English rule was of course the rule in the American colonies, and after their independence it was uncritically applied, by a false analogy, to the American States.

In U. S. v. Lee, 106 U. S., it is said that "the doctrine met with a doubtful reception in the early history of this Court," and that though it has since "been treated as an established doctrine," yet "the principle has never been discussed nor the reasons given.”

That this principle of leaving the citizen without any lawful rights as against the State, and completely at its mercy, is contrary to the republican theory of rights, can hardly be doubted.

The separation from England was chiefly justified by the failure of the British Government to afford a hearing and lawful remedy for the wrongs of the people. The preamble to the Federal Constitution declared that its purpose was to "establish justice," and that instrument forbade any State to deprive the citizen of his property or to impair its contracts with him.

The State constitutions were even more explicit as to our republican Government having no royal prerogatives or royal immunities to violate contracts or to perpetrate wrongs upon citizens without lawful redress. Throughout all those instruments, the Government, Federal or State, appears, not as a sovereign clad in royal prerogatives, but as a mere agency adopted to perform certain duties of general importance to the people, and its officers appear, not in the immunity of "awful majesty," but merely as paid agents, employes or servants of the citizen, to perform certain specified work for him.

Every lawyer's observation affords examples to him how often the rule has been applied to aid practical repudiation by the State, or by its officers, of debts due to others, and how often the State has been compelled to pay false or excessive claims by legislative looseness, which it never would have been made to pay if the alleged creditor had been compelled to establish its integrity in a Court of justice.

If an individual violates his contract with another individual, or injures him in any way, it would be considered as inconsist