ART. IV.-RIGHT TO SUE THE UNITED STATES.

We shall aim to present, in the following article, a short view of the general rights of sovereignty in regard to suits by subjects, as laid down in the writings of publicists also the provision of the constitution of the United States in this behalf, the construction it has received, and the practice under it. Our object is two-fold; in the first place, to furnish individuals, concerned in private claims against the United States, with some materials that may be useful in determining the course to adopt; and in the second place, to take the liberty to suggest, whether, upon a review of the rights of an American citizen, who has a claim against the national government, there do not appear some grounds for wishing an alteration of the law. Would a general law authorizing suits against the United States be inconsistent with the national dignity, or expose the government unduly to vexatious claims; and would it not benefit the citizen? We shall not argue these questions; but shall confine ourselves to a simple statement of the law and practice, as we have found it-submitting the case to the judgment of the reader.

It is considered as one of the attributes of sovereignty, not to be liable, except by consent, to the suit of a subject. So long as one continues a subject he has no way to oblige his prince to give him his due, when he refuses it, though no wise prince will ever refuse to stand to a lawful contract. And if the prince gives the subject leave to enter an action against him upon such contract, in his own courts, the action itself proceeds rather upon natural equity, than upon the municipal laws.' (Puffendorf's Law of Nature and Nations, B. 8. ch. 10.) This doctrine is found in other writers on the law of nations, and is strenuously supported by Locke. (Locke on Government, pt. 2. § 295. See Vattel, B. 1. ch. 4, § 49, 50. 3 Story's Commentaries on the Constitution, 538. 1 Blackstone's Commentaries, 243.)

Some of the reasons assigned for this rule grow out of the supposed policy of preserving the chief magistrate or government free from perpetual suits, at the will of any citizen, for any real or supposed claim or grievance. (See 3 Story's Com.

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on Const. 538.) Mr. Chitty, in his treatise on the Prerogatives of the crown, (cap. 13, § 1,) assigns another reason, with respect to the exemption of the kings of England. The king,' Mr. Chitty says, 'is not indeed personally chargable, nor can he be subjected to the usual common law proceedings, which may be instituted between subject and subject. For all judicial proceedings and writs must be in the king's name as the fountain of justice; and it would be absurd, that the king should command or require another to command himself; independently of its being contrary to the constitutional idea of the king, to imagine that he is subject to the control and command of any of his own courts.' (See also, 4 Coke, 55, a. Com. Dig. Prerogative, D. 78.)

In the early history of England, however, and until the time of Edward I. the King might have been sued as a common person. This seems to have been one of the rights of the subject established in Saxon times, before the attributes of sovereignty had acquired their present refined character, and before the Norman conquest had broken that spirit of freedom, which controlled the relations between the Prince and his people.' Bracton says of the sovereign, in that admirable style which pervades his work: Ad hoc autem creatus est et electus, ut justitiam faciat universis, et ut in co dominus sedeat, et per ipsum sua judicia disernat. (Lib. 3. cap. 9.) Wilson, J. in his opinion in the case of Chisholm v. State of Georgia, (2 Dal. 460) says the form of process was imperative upon the king. Præcipe Henrico Regi Angliæ, &c.

But though the king of England is no longer exposed to a suit, as a private citizen, the constitution, or, in other words, the common law, has provided an adequate remedy for the subject, in all cases where property is concerned. Blackstone has stated this in his habitual style of servility. 'If any person has, in point of property, a just demand upon the king, he must petition

This spirit and the attachment of the people after the conquest to the Saxon laws is illustrated by a lively ballad, given by Thierry, in the Appendix to the first volume of his learned and eloquent Histoire de la Conquete de l'Angleterre. The ballad represents the struggle of the Kentishmen against the Conqueror and puts these words in their mouths :

For liberty we fight,

And to enjoy King Edward's laws,

The which we hold our right.

him in his court of chancery, where his chancellor will administer right as a matter of grace, though not upon compulsion.❜ (1 Com. 243.) Now the petition of right was recognised, (Bro. Ab. tit. Prerog. 2.) as far back as the days of Edward I. a monarch in nowise remarkable for the laxity with which he maintained his constitutional prerogatives and is called by Mr. Chitty, in the work above quoted, the birth-right of the subject, The petition of right is a common law remedy. But the delay and expense attending this proceeding induced the legislature to afford the subject a more summary method of interpleading with the crown. This was effected by extending the remedies by monstrans de droit and traverse of office. At the present time it is believed, that the subject in England enjoys in all cases of property, as full a remedy against the crown, as against any private individual.

The situation of the citizen in the United States, so far as claims upon the government are concerned, is not so eligible as that of the British subject. This will be seen, by a reference to the constitution and to the legislation of congress.

By the constitution, the judicial power extends to controversies to which the United States shall be a party.' Art. III. $ 2.

Upon this Judge Story remarks, in his Commentaries upon the Constitution (vol. 3d, § 1669, p. 537,) as follows:

It is observable that the language used does not confer upon any court cognizance of all controversies to which the United States shall be a party, so as to justify a suit to be brought against the United States without the consent of congress.' Judge Story proceeds; The greatest difficulty arises in regard to the contracts of the national government; for as they cannot be sued without their own consent, and as their agents are not responsible upon any such contracts, when lawfully made, the only redress which can be obtained must be by the instrumentality of congress, either in providing (as they may) for suits in the common courts of justice to establish such claims by a general law, or by a special act for the relief of the particular party. In each case, however, the redress depends solely upon the legislative department, and cannot be administered except through its favor.' The legislative body, says Iredell, J. is the only one that can afford a remedy, which,

from the very nature of it, must be the effect of its discretion, and not of any compulsory process. This is the only constituted authority to which such an application could, with any propriety, be made. (Chisholm v. State of Georgia, 2 Dal. 44.) The following language of one of the expounders of the constitution on this subject deserves to be quoted.

I believe,' says Mr. Tucker, 'that there is as much reason that a legal or equitable claim against the United States should receive a judicial discussion, and decision, as any similar claim which might be made on their behalf. And though I doubt, as to the mode in which a judicial inquiry into the justice of a pecuniary claim against them may be instituted, yet I cannot doubt that the constitution meant to afford the right to every citizen of the United States. Both the constitution and laws of the United States appear to be defective upon this subject; inasmuch as they neither provide in what manner a just claim against the United States, which may happen to be disallowed by the auditor and comptroller of the treasury, shall be judicially examined; nor for the payment of any just claim which might be judicially established, without submitting it to the discretion of congress, whether they will make an appropriation for that purpose.' (1 Tuck. Black. 363.)

'A judicial court is, according to the true spirit of the constitution, the proper place in which such a right should be inquired into, and from which redress might be finally obtained; and that without impediment from any other department of the government.' (364. See also p. 352.)

The following are the instances in which congress have granted permission to sue the United States.

The first instance is in an act passed May 7, 1822, (cap. 96. See Washington City Laws, p. 418.) authorizing the Corporation of Washington to drain the ground in and near certain public reservations, and to improve and ornament certain parts of the same. The sixth section of this act is as

follows:

'It shall be lawful for the legal representatives of any former proprietor of the land directed to be disposed of by this act, or person lawfully claiming title under them, and they are hereby permitted and authorized, at any time within one year from the passing of this act, to institute a bill of equity, in the

nature of a petition of right, against the United States, in the Circuit Court of the United States for the District of Columbia, in which they may set forth the grounds of their claim to the land in question.'

The action of Van Ness & Wife v. Mayor of Washington & the United States (4 Peters S. C. Rep. 232,) was instituted under the permission given by the above section.

In 1824 was passed an act enabling the claimants to lands within the limits of the state of Missouri and territory of Arkansas to institute proceedings to try the validity of their claims. (3 Story's Laws, 1959, cap. 173.) The first section provides that persons claiming lands, &c. in that part of the late province of Louisiana which is now included within the state of Missouri, by virtue of certain French or Spanish grants, &c. and which might have been perfected into a complete title under the laws of the government under which the same originated, had not the sovereignty of the country been transferred to the United States, may present a petition to the District Court of the state of Missouri, setting forth, fully, plainly and substantially, the nature of their claims to the lands, &c. The section further provides, at considerable length, what shall be set out in the petition, and that it shall be the duty of the United States' attorney for the district in which the suit shall be instituted, in all cases where the United States are interested on account of the public domain, to take notice of each petition filed under the provisions of this act, and to make defence, on all just and proper occasions, in behalf of the public interest.

The second section of the above act provides that every petition, presented under it, shall be conducted according to the rules of a court of equity.

This act was continued, with some modifications, by another act passed 24th May, 1828. (cap. 92.)

The actions of Soulard et al. v. United States, and of Smith v. United States, (4 Peters S. C. Rep. 511,) were instituted under the permission given by the above act.

In 1828, May 23, (cap. 70) was passed an act supplementary to the several acts providing for the settlement and confirmation of private land claims in Florida. It is provided by the sixth section of this act, that certain claims to land within