Part 7

The amendment was finally accepted in this form on March 4, 1794, and was at once submitted to the legislatures of the several states for ratification, but up to March, 1797, there were still eight states which had not acted upon it, probably because the political clamor had subsided, and there was no longer any demand for amendment. In fact, Congress had to request the President to communicate with the outstanding states upon the subject. Finally, in a message from President Adams to Congress dated January 8, 1798, the proposed amendment was declared to have been ratified by three-fourths of the states, and it thereupon became the eleventh article of amendment to the Constitution of the United States. New Jersey and Pennsylvania had refused to ratify it, while South Carolina and Tennessee had taken no action.

The unusual and peculiar wording of the amendment first attracts attention. Instead of declaring how the Constitution shall read in the future, it declares how it shall "not be construed." This phraseology was used for political reasons and as a concession to the susceptibilities of the advocates of state rights. Extremists wanted a declaration that would not only overrule the recent construction of the Constitution by the Supreme Court and deny that such a power had ever existed, but would also oust all jurisdiction in pending as well as in future cases. The amendment, therefore, does not purport to amend or alter the Constitution, but to maintain it unchanged, while controlling its scope and effect by authoritatively declaring how it shall not be construed.

Speaking of the language of the amendment, Chief Justice Marshall said in the case of Cohens _vs._ Virginia: "It is a part of our history, that, at the adoption of the Constitution, all the states were greatly indebted; and the apprehension that these debts might be prosecuted in the federal courts formed a very serious objection to that instrument. Suits were instituted, and the court maintained its jurisdiction. The alarm was general; and, to quiet the apprehensions that were so extensively entertained, this amendment was proposed in Congress, and adopted by the state legislatures. That its motive was not to maintain the sovereignty of a state from the degradation supposed to attend a compulsory appearance before the tribunal of the nation, may be inferred from the terms of the amendment. It does not comprehend controversies between two or more states, or between a state and a foreign state. The jurisdiction of the court still extends to these cases: and in these a state may still be sued. We must ascribe the amendment, then, to some other cause than the dignity of a state. There is no difficulty in finding this cause. Those who were inhibited from commencing a suit against a state, or from prosecuting one which might be commenced before the adoption of the amendment, were persons who might probably be its creditors. There was not much reason to fear that foreign or sister states would be creditors to any considerable amount, and there was reason to retain the jurisdiction of the court in those cases, because it might be essential to the preservation of peace. The amendment, therefore, extended to suits commenced or prosecuted by individuals, but not to those brought by states.

"The first impression made on the mind by this amendment is, that it was intended for those cases, and for those only, in which some demand against a state is made by an individual in the courts of the Union. If we consider the causes to which it is to be traced, we are conducted to the same conclusion. A general interest might well be felt in leaving to a state the full power of consulting its convenience in the adjustment of its debts or of other claims upon it; but no interest could be felt in so changing the relations between the whole and its parts, as to strip the government of the means of protecting, by the instrumentality of its courts, the Constitution and laws from active violation."[25]

It will also be observed that the amendment does not refer to suits against a state by one of its own citizens. This was undoubtedly because the Constitution did not extend the judicial power of the United States, when dependent upon the character of the parties, to controversies between a state and its own citizens, but only to controversies between a state and citizens of another state or citizens or subjects of foreign states. The distinction between jurisdiction dependent upon the nature or subject matter of the controversy irrespective of the character of the parties, such as cases arising under the Constitution, laws and treaties of the United States, and jurisdiction dependent upon the character of the parties irrespective of the nature or subject matter of the controversy, had probably not then been as clearly recognized as was subsequently done by Chief Justice Marshall. The failure of the eleventh amendment to mention suits against a state by its own citizens gave rise nearly one hundred years later to the contention that a state could be sued in a circuit court of the United States by one of its own citizens in a case arising under the Constitution. This was urged at the October term, 1889, in Hans _vs._ Louisiana and North Carolina _vs._ Temple,[26] but the court overruled the contention and held that a state could not be sued by an individual in a United States court even in a case arising under the Constitution. Mr. Justice Bradley delivered the opinion of the court. He criticized the reasoning of the majority in Chisholm _vs._ Georgia, and upheld the dissenting opinion of Mr. Justice Iredell to the effect that, under the Constitution as originally adopted, no suit could be maintained against a state by an individual to enforce its debts except by its consent. Mr. Justice Harlan, however, while he concurred in holding that a suit directly against a state by one of its own citizens to enforce a debt was not within the judicial power of the United States, criticized the comments made by Mr. Justice Bradley upon the decision in Chisholm _vs._ Georgia as not necessary to the determination of the case, and expressed the opinion that the prior decision was based upon a sound interpretation of the Constitution as that instrument was then worded.

It has been stated in opinions of the Supreme Court that a state can be sued in a court of the United States by an individual if it waives its immunity and consents to be sued. But it is difficult to perceive how the consent or waiver of a state can, in any case and under any circumstances, confer upon the federal courts jurisdiction of a suit against it by a citizen of another state or a citizen or subject of a foreign state in the face of the imperative mandate of the amendment that "the judicial power of the United States shall _not be construed to extend_ to" any such suit. It is true that the court in the case of Clark _vs._ Barnard said that the immunity of a state from suit in a federal court was a personal privilege which it might waive at pleasure and that its appearance as a party defendant in a court of the United States would be a voluntary submission to its jurisdiction,[27] but in that case the state intervened as an actor and its intervention was such that it could be treated substantially as a plaintiff and the jurisdiction sustained on the ground that a state may sue an individual in a federal court. Although in the more recent case of Gunter _vs._ Atlantic Coast Line,[28] Mr. Justice White, delivering the opinion of the court, declared it to be an elementary proposition that a state could waive its immunity, it will be observed that in that case the suit was in fact against an officer of the state of South Carolina, and that the state itself was not a party to the record. It seems to me, with all deference, that the court has not yet squarely passed upon the point, nor, so far as I know, has it ever questioned the fundamental principle that a federal court cannot exercise jurisdiction in any case to which the judicial power of the United States, as delegated and defined in the Constitution, does not extend. An entirely different question is presented when we consider whether an officer of a state can consent or be authorized to consent to be sued in a federal court; in other words, whether he can waive the defense that the state is a necessary party to the suit. It does not follow that, because a state cannot be sued, it may not authorize its agent to defend on the merits without pleading the absence of the state as the real party in interest, and the denial of jurisdiction over the state as principal does not necessarily imply a denial of jurisdiction over the officer when doing or attempting to do an illegal act as its agent or representative. So, also, a different question is presented under the later amendments, which may be held to have qualified the eleventh amendment in authorizing Congress to enforce their provisions by appropriate legislation. As to that point I am not now prepared to express an opinion.

In construing the eleventh amendment for the purpose of ascertaining its true intent and meaning, as indeed in construing most of the provisions of the Constitution and its contemporaneous amendments, reference to the history and to the common law of England is generally the safest guide as to what was understood and intended at the time. In that history will be found the true sources of our institutions, for these are essentially and predominantly English. The legal and political institutions of England were constantly in the minds of the framers and of the people. The common law had long been regarded with affection and reverence as the birthright of Americans and the guardian at once of their private rights and their public liberties. Indeed, the Continental Congress, assembled in October, 1774, had declared the colonies entitled as of right to the common law.

The theory of the immunity of a state or of the United States from suit by an individual without its consent is frequently asserted to be analogous to the monarchical principle as to the immunity of the king from suit without his consent commonly expressed in the maxim that "the king can do no wrong." The idea seems to have been that in England it would be considered an invasion of the sovereignty of the crown and derogatory to its dignity to subject the king to a suit by an individual except with his consent, to be granted or refused in his arbitrary discretion. It is very doubtful whether any such idea finds support in the common law or history of England, or in the traditional usage and experience of that country to any such extent as is often insisted upon.

On the contrary, it had long been regarded in England as settled law that the subject was entitled to an effective legal remedy for any invasion of his legal rights by the king or the government. He had a right to sue the king for the restitution of property or money or for the recovery of damages for breach of contract, and to sue officers of the crown for any tortious acts. The practice established for centuries had been to present to the king a petition praying leave to sue him, and the custom had been for the king as of course to endorse on the petition his fiat that right be done. Thereafter the action proceeded as any other action between subject and subject. This right was conceded to aliens as well as to subjects. Although the leave to sue was nominally or theoretically granted as a matter of grace and not upon compulsion, it was in fact the constitutional duty of the king to grant it, and it was seldom denied. Under the common law, the subject was entitled as a matter of right--as one of the immemorial liberties of Englishmen--to inform his king of the nature of any grievance, and thereupon, in the language of Blackstone, "as the law presumes that to know of any injury and to redress it are inseparable in the royal breast, it then issues, as of course, in the king's own name, his orders to his judges to do justice to the party aggrieved."

The nature of the proceeding under a petition of right has been passed upon by the Supreme Court of the United States in several cases, and its decisions clearly show that the remedy is not to be regarded as a mere matter of grace, but as a right to sue and obtain redress in the class of cases to which it applies. Thus, Chief Justice Marshall, delivering the opinion of the court in Marbury _vs._ Madison at the February term, 1803, said: "In Great Britain the king himself is sued in the respectful form of a petition, and he never fails to comply with the judgment of his court."[29] In United States _vs._ O'Keefe the court at the December term, 1870, examined the nature of the remedy in construing the act of Congress of July 27, 1868, now section 1068 of the United States Revised Statutes. Mr. Justice Davis, speaking for the court, said: "This valuable privilege, secured to the subject in the time of Edward the First, is now crystallized in the common law of England. As the prayer of the petition is grantable _ex debito justitiae_, it is called a petition of right, and is a judicial proceeding, to be tried like suits between subject and subject.... It is of no consequence that, theoretically speaking, the permission of the crown is necessary to the filing of the petition, because it is the duty of the king to grant it, and the right of the subject to demand it. And we find that it is never refused, except in very extraordinary cases, and this proves nothing against the existence of the right.... If the mode of proceeding to enforce it be formal and ceremonious, it is nevertheless a practical and efficient remedy for the invasion by the sovereign power of individual rights."[30] And in the later case of Carlisle _vs._ United States the court held that, under the proceeding known as the petition of right, the government of Great Britain accorded "the right to prosecute claims against such government in its courts" not only to subjects but to aliens.[31] Later still in the famous case of United States _vs._ Lee, which was an action at law to recover the property known as the Arlington National Cemetery from the possession of officers of the United States government, Mr. Justice Miller, delivering the opinion of the court, said: "It is believed that the petition of right, as it has been practised and observed in the administration of justice in England, has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords to the subjects of the king in legal controversies among themselves."[32]

The remedy under the petition of right has continued unimpaired to the present time. The procedure is now regulated by the statute 23 and 24 Victoria, ch. 34, passed July 3, 1860. The statute provides that the king by means of this proceeding may be sued at law or in equity as the particular case may require, and that the remedy afforded "shall comprehend every species of relief claimed or prayed for in any such petition of right, whether a restitution of any incorporeal right, or a return of lands or chattels, or a payment of money or damages, or otherwise." In granting or refusing the petition, the king acts under the advice of the home secretary, and the latter is responsible to parliament in case he shall arbitrarily or wrongfully advise a refusal.

The petition of right, however, is available only in cases in which it is sought to obtain restitution of lands or goods, or, if restitution cannot be given, compensation in money, or where the claim arises out of a contract, as for goods supplied to the crown or to the public service. It does not extend to cases of tort. If the king personally should commit or threaten to commit a tort, such, for example, as a trespass, he could not be proceeded against in either a civil or a criminal court; the ordinary law courts have no means of restraining or punishing him personally or affording redress against him for any wrong done by him personally. Not only does the maxim that "the king can do no wrong" prevent any ordinary court from granting relief against the king himself, but the courts have no jurisdiction against him in cases of tort.

Nevertheless, this ancient and fundamental maxim never meant that the king was above the law or could violate the law with impunity, nor was it ever understood in any such sense as that everything done by the king was to be regarded as just and lawful. On the contrary, it was fearlessly proclaimed in the days of Bracton that the king was below the law and bound to obey it, and in his coronation oath he swears to observe and respect it.

But whatever might have been the personal immunity of the king, it had been settled at common law long prior to the adoption of the Constitution of the United States that immunity from suit did not extend to any officer or servant of the crown. The very exemption of the king from responsibility before the courts in cases of tort conclusively established the personal responsibility of some officer or servant of the crown, and the direction or authority of the king did not constitute any warrant or defense for a wrongful and illegal act done by any officer or servant. As the Supreme Court said in the case of Langford _vs._ United States: "The English maxim does not declare that the government, or those who administer it, can do no wrong; for it is a part of the principle itself that wrong may be done by the governing power, for which the ministry, for the time being, is held responsible."[33]

The boast of Englishmen for centuries had been that no officer of the government was above the ordinary law. In his interesting lectures at Oxford as a successor of Blackstone in the Vinerian professorship, Professor Dicey says: "In England the idea of legal equality, or of the universal subjection of all classes, to one law administered by the ordinary courts, has been pushed to its utmost limit. With us every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility for every act done without legal justification as any other citizen. The reports abound with cases in which officials have been brought before the courts, and made, in their personal capacity, liable to punishment, or to the payment of damages, for acts done in their official character but in excess of their lawful authority. A colonial governor, a secretary of state, a military officer, and all subordinates, though carrying out the commands of their official superiors, are as responsible for any act which the law does not authorize as is any private and unofficial person."[34] And Anson in his "Law and Custom of the Constitution" points out that the English Constitution "has never recognized any distinction between those citizens who are and those who are not officers of the state in respect of the law which governs their conduct or the jurisdiction which deals with them." In the famous case of Entick _vs._ Carrington (1765), a secretary of state sought immunity as an officer of the crown from a suit for damages by pleading reasons of state for an unlawful act, but Lord Chief Justice Camden declared that "with respect to the argument of state necessity or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions."[35] And one hundred years later, in the case of Feather _vs._ The Queen, Lord Chief Justice Cockburn declared that "no authority is needed to establish that a servant of the crown is responsible in law for a tortious act done to a fellow subject, though done by the authority of the crown, a position which appears to us to rest on principles which are too well settled to admit of question, and which are alike essential to uphold the dignity of the crown on the one hand, and the rights and liberties of the subject on the other."[36]

Moreover, the rule of _respondeat superior_ does not apply to the king. The conclusive legal presumption is that the king can do no legal wrong, and this leads to the further conclusive presumption that, in the eye of the law, he cannot authorize or direct a wrong. Every executive officer of the crown is, therefore, treated as if he were a principal, and as such is held personally responsible whenever any legal right of the subject has been invaded by him, although he may have acted under the direct order of the king, by his command and even in his presence. The civil irresponsibility of the king for tortious acts could not have been maintained with any show of justice if the officers and agents of the crown had not been held personally responsible for any illegal acts committed by them, and if the king had not been compelled to act through responsible agents. From the earliest times it has been deemed essential that the king should always act through an officer or servant, in order that there might be some one upon whom responsibility could be fastened. Lord Coke declares in his "Institutes" that "the king, being a body politique, cannot command but by matter of record." Custom and statute early required that all executive acts to which the sovereign was of necessity a party should be done in certain forms and authenticated by the signature or seal of some officer. The intervention of an officer was always necessary. In fact, some minister or officer of the crown can be held fully responsible for any illegal act. Anson states that "there is hardly anything which the sovereign can do without the intervention of written forms, and nothing for which a minister is not responsible."

Although the cases in England against officers of the crown were generally at law, there can be no reasonable doubt that the Court of Chancery, at the time when our Constitution was adopted, had full power, by means of the writ of injunction, to restrain an officer of the crown from violating the law where the remedy at law in a suit for damages or for possession of property, real or personal, would have been wholly inadequate and ineffective. The great state trial, known as the case of the Bankers,[37] in which Lord Somers was overruled by the House of Lords, left no doubt as to the principle and the jurisdiction of the courts in suits against crown officers. As Professor Goodnow has shown in his work on "Comparative Administrative Law," the English courts had long been accustomed in one way or another to control servants of the crown and executive officers of the government and to compel them to obey the law. All the great writs, which were at first prerogative writs, had been originally issued to control administrative or judicial officers. Such was the original function of mandamus, habeas corpus, quo warranto, prohibition. Injunctions, it is true, seem rarely to have been made use of in England as a means of preventing administrative action, and only a few cases can be found where they were so used, but, on settled principles, any administrative or executive officer threatening to do an illegal act which would injure the individual in his property rights was amenable to the jurisdiction of courts of equity in controversies requiring their intervention.