That a sovereign is not subject to suit, without its consent, is a principle that has come down unchallenged since the time of Rome. It has found expression in the rule that "the sovereign can do no wrong " and has been adopted by the English Common Law as fully as, indeed, if anything, more fully than by the systems of jurisprudence founded upon the Civil Law.1
In Civil Law countries the State is often held liable in actions based upon the torts of its agents as well as in those of a con-tractural nature; whereas, in the United States, the individual whose rights have been violated by persons acting under State authority has no remedy against the State, except by express permission, and this permission has never been granted except with reference to contract claims.1 The injured individual has, however, right of action against the public officials by whose illegal acts he has been wronged, but these officials may be financially irresponsible, and thus the remedy, in fact, be of no value.
1 Where, however, provision has been made by a State for suits against itself based upon claims arising out of contract, the American courts have sometimes held that the taking of private property by a public official for the benefit of the State creates an implied contract for compensation, and have thereupon awarded damages. Thus in United States v. Great Falls Manufacturing Co. (112 U. S. 645: 5 Sup. Ct. Rep. 306; 28 L. ed. 846), the Supreme Court of the United States said: "We are of opinion that the United States, having by its agents, proceeding under the authority of an act of Congress, taken the property of the claimant for public use, is under an obligation, imposed by the Constitution, to make compensation. The law will imply a promise to make the required compensation, where property, to which the Government asserts no title, is taken pursuant to an act of Congress, as private property to be applied for public uses. Such an implication being consistent with the constitutional duty of the government as well as with common justice, the claimant's cause of action is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the Court of Claims, of actions founded upon any contract, express or implied, with the Government of the United States."
Though the principle that the King can do no wrong is, as Blackstone says, "a necessary and fundamental principle of the English Constitution," the English subject aggrieved by his sovereign, is in fact granted redress by the use of either the "petition of right" or of the "monstrans de droit." The first remedy, dating from the time of Edward I, lies where the government is in full possession of hereditaments or chattels to which the claimant lays title. Upon this petition the King, as a matter of course, indorses soit droit fait al partie, whereupon the matter is determined upon issue or demurrer as in a suit between private individuals. The monstrans de droit was originally employed only in cases where the right of both the King and the subject appears upon record.
Though, according to English constitutional law, the King is not subject to suit civilly or criminally, all of his agents, from the highest to the lowest, are. For any act not warranted by law that they may commit they are responsible in the ordinary courts of law to private citizens injured by them, and they may not plead the command of the crown in justification of an act otherwise illegal.
In America the same principle of official responsibility applies, with, however, these exceptions. In the first place, we have no chief executive who is exempt from responsibility to law. In the second place our legislatures, federal and state, have limited legislative powers, especially as to the taking of life, liberty, and property without due process of law. Thus in England an official can justify, in all cases, if he can show an authority derived from an act of Parliament; in the United States, however, he must be able to point to a legislative act which can be shown to be in conformity with the conditions imposed by our written constitutions. In other respects, however, our citizens are not so favorably situated as regards claims against the State as they are in England, for the two remedies, the Petition of Right and the Monstrans de droit, have not found a place in our jurisprudence. In some classes of cases, as we shall see, the United States, and several of the States here made provision for suits against themselves. But in all other cases, the citizen, though he may hold the public officials to a strict legal responsibility, is without the right to sue the State, the principle being unreservedly accepted that the sovereignty of the State implies freedom from suit against its will.2