§ 338. “Rights to Proceed against the Commonwealth or a State.”

REMEDIES AGAINST THE CROWN.—“It is an ancient and fundamental principle of the English Constitution, that the king can do no wrong.” (Broom's Maxims, p. 53.) One consequence of this principle is that no suit or action, even in respect of civil matters, can—apart from statute—be brought against the sovereign. “Indeed, his immunity, both from civil suit and from penal proceeding, rests on another subordinate reason also, viz., that no court can have jurisdiction over him. For all jurisdiction implies superiority of power, and proceeds from the Crown itself. But who, says Finch. shall command the king?” (Steph. Comm. ii. 480.) In England there are ancient remedies by petition of right and by monstrans de droit, by which a subject who has a claim against the Crown, in respect of property or arising out of contract, may obtain redress as a matter of royal grace. In 1860, by the (Imperial) Act 23 and 24 Vic. c. 34, the remedy by petition of right was practically assimilated to the ordinary procedure by action at law or suit in equity, and was made triable in any Superior Court of appropriate jurisdiction; so that in cases where a petition of right lies, there is substantially a right of suit against the Crown, in the guise of a petition.

In some of the Australasian colonies more extended rights of proceeding against the Crown have been conferred. Thus in New South Wales, under the Claims Against the Colonial Government Act, 1876, any person making a claim against the Government may petition the Governor to appoint a nominal defendant, and in default of such appointment the Colonial Treasurer shall be the nominal defendant. The claimant may sue the nominal defendant at law or equity in any competent court, may obtain judgment or costs as in an ordinary case between subject and subject, and in default of payment may levy execution upon the property of the Government. In Queensland, the Claims Against Government Act, 1866, is to the same effect. For the history of these Acts, see Sydney Morning Herald, 10 August, 1867, 17 April, 1875. It has been held by the Privy Council that under the New South Wales Act an action will lie for torts committed by the servants of the Crown. (Bowman v. Farnell, 7 N.S.W. L.R. 1; sub nomine Farnell v. Bowman, 12 App. Ca. 643.) Sir Barnes Peacock, delivering the judgment of the Judicial Committee, made the following pertinent remarks on the policy of allowing suits against the Crown in the colonies:—

“It must be borne in mind that the local Governments in the colonies, as pioneers of improvements, are frequently obliged to embark in undertakings which in other countries are left to private enterprise, such, for instance, as the construction of railways, canals, and other works for the construction of which it is necessary to employ many inferior officers and workmen. If, therefore, the maxim that ‘the king can do no wrong’ were applied to colonial governments in the way now contended for by the appellants, it would work much greater hardship than it does in England.” (12 App. Ca. at p. 649.)

In New Zealand, under the Crown Suits Act, 1881, actions may be maintained against the Crown for breach of any contract entered into by the Government, and also for torts committed under the authority of the Government in connection with any public work. (See Reg. v. Williams, 9 App. Ca. at p. 432.) In Western Australia, the Crown Suits Act, 1898, is to a similar effect.

In Tasmania, under the Crown Redress Act, 1891, any one having a claim against the Queen in respect of any contract entered into by the Government of Tasmania, or in respect of any act or omission of any officer, agent, or servant of the Government, which would between subject and subject be the ground of an action at law or a suit in equity, may file in any court of competent jurisdiction a supplication in the form of a declaration at law or bill in equity, which is to be pleaded to by the Attorney-General, and tried like an action or suit between subjects. If judgment is against the Crown, no execution is to issue, but the suppliant is entitled to a certificate of judgment, which authorizes payment of damages and costs out of the Consolidated Revenue Fund.

  ― 806 ―

In Victoria and South Australia there is no remedy against the Crown for torts, and the remedy in contract is by petition. (See Crown Remedies and Liability Act, 1890 [Victoria], and Claims Against Government Act, 1853 [South Australia].)

The Governments both of the Commonwealth and the States represent the authority of the sovereign in the Commonwealth and in the States respectively; and a suit against the Commonwealth or a State is therefore a suit against the Crown. Without the consent of the Crown, given in the proper way, no such suit would lie.

SUITS AGAINST THE COMMONWEALTH.—That the Federal Parliament should have the power to make laws conferring rights to proceed against the Commonwealth is a proposition which will hardly be disputed. Probably it would have had such power, even without express words; inasmuch as the prerogative right of the Crown in the Commonwealth exempting it from suit is a right which can be waived by the consent of the Crown, and legislation by the Federal Parliament, of which the Crown is a part, would be an appropriate mode of giving such consent. Thus in the United States it has never been disputed that Congress has power to consent by law to the federal government being sued. (Per Marshall, C.J., Cohens v. Virginia, 6 Wheat. 412; Kendall v. United States, 12 Pet. 524; Hill v. United States, 9 How. 386; Kent, Comm. i. 297.) But it is unnecessary to consider whether this would have been among the implied legislative powers of the Parliament; because this section gives the power in express terms.

SUITS AGAINST A STATE.—It is clear that each State retains the power which it has always possessed to make laws conferring rights of procedure against itself. That, however, is not sufficient. Under the Constitution, there are duties cast upon the States which the federal judiciary ought to have power to enforce at the suit of any person injured; such for instance as the duty of not subjecting the residents of other States to disabilities or discriminations (sec. 117), and the duty of giving full faith and credit to the laws, &c., of every State (sec. 118). If each State were free to allow or not to allow itself to be sued in matters of federal jurisdiction, the federal courts might find themselves powerless in such matters; and therefore the Federal Parliament has been empowered to confer rights of proceeding against a State in respect of matters “within the limits of the judicial power.”

The Constitution of the United States was formerly silent on this point, and in the famous case of Chisholm v. Georgia, 2 Dall. 419, the question arose whether the Constitution conferred the right to sue a State. It was decided that it did; but the decision aroused such a storm of indignation in Georgia and in the other States that the eleventh amendment was passed, declaring that the judicial power should not be construed to extend to suits against a State by citizens of another State, or by citizens or subjects of a foreign State. (See § 324, supra; Kent, Comm. i. 297; Story, Comm. § 1683.)