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CHAPTER IV.

GENERAL EXCEPTIONS.

Conditions excluding liability for act prima facie wrongful. We have considered the general principles of liability for civil wrongs. It now becomes needful to consider the general exceptions to which these principles are subject, or in other words the rules of immunity which limit the rules of liability. There are various conditions which, when present, will prevent an act from being wrongful which in their absence would be a wrong. Under such conditions the act is said to be justified or excused. And when an act is said in general terms to be wrongful, it is assumed that no such qualifying condition exists. It is an actionable wrong, generally speaking, to lay hands on a man in the way of force or restraint. But it is the right of every man to defend himself against unlawful force, and it is the duty of officers of justice to apply force and restraint in various degrees, from simple arrest to the infliction of death itself, in execution of the process and sentences of the law. Here the harm done, and wilfully done, is justified. There are incidents, again, in every football match which an uninstructed observer might easily take for a confused fight of savages, and grave hurt sometimes ensues to one or more of the players. Yet, so long as the play is fairly conducted according to the rules agreed upon, there is no wrong and no cause of action. For the players have joined in the game of their own free will, and accepted its risks. Not that a man is bound to play football or any other rough game, but if he does he must abide its ordinary chances. Here the harm done, if not justified (for, though

in a manner unavoidable, it was not in a legal sense necessary), is nevertheless excused (a). Again, defamation is a wrong; but there are certain occasions on which a man may with impunity make and publish untrue statements to the prejudice of another. Again," sic utere tuo ut alienum non laedas" is said to be a precept of law; yet there are divers things a man may freely do for his own ends, though he well knows that his neighbour will in some way be the worse for them.

Some of the princi

General and particular exceptions. ples by which liability is excluded are applicable indifferently to all or most kinds of injury, while others are confined to some one species. The rule as to "privileged communications" belongs only to the law of libel and slander, and must be dealt with under that particular branch of the subject. So the rule as to "contributory negligence qualifies liability for negligence, and can be understood only in connection with the special rules determining such liability. Exceptions like those of consent and inevitable accident, on the other hand, are of such wide application that they cannot be conveniently dealt with under any one special head. This class is aptly denoted in the Indian Penal Code (for the same or similar principles apply to the law of criminal liability) by the name of General Exceptions. And these are the exceptions which now concern us. The following seem to be their chief categories. An action is within certain limits not maintainable in respect of the acts of political power called "acts of state," nor of judicial acts. Executive acts of lawful authority form another similar class. Then a class of acts has to be considered which may be called quasi-judicial, and which, also within limits, are protected. Also, there are

(a) Justification seems to be the proper word when the harm suffered is inseparably incident to the performance of a legal duty or the exercise of a com

mon right; excuse, when it is but an accident; but I do not know that the precise distinction is always possible to observe, or that anything turns on it.

various cases in which unqualified or qualified immunity is conferred upon private persons exercising an authority or power specially conferred by law. We may regard all these as cases of privilege in respect of the person or the occasion. After these come exceptions which are more an affair of common right; inevitable accident (a point, strange to say, not clearly free from doubt), harm inevitably incident to the ordinary exercise of rights, harm suffered by consent or under conditions amounting to acceptance of the risk, and harm inflicted in self-defence or (in some cases) otherwise by necessity. These grounds of exemption from civil liability for wrongs have to be severally examined and defined. And first of " Acts of State."

Acts of state. It is by no means easy to say what an act of state is, though the term is not of unfrequent occurrence. On the whole, it appears to signify-(1) An act done or adopted by the prince or rulers of a foreign independent State in their political and sovereign capacity, and within the limits of their de facto political sovereignty; (2) more particularly (in the words of Sir James Stephen (b))," an act injurious to the person or to the property of some person who is not at the time of that act a subject (c) of her Majesty; which act is done by any representative of her Majesty's authority, civil or military, and is either previously sanctioned, or subsequently ratified by her Majesty" (such sanction or ratification being, of course, expressed in the proper manner through responsible ministers).

(b) History of the Criminal Law, ii. 61.

(c) This includes a friendly alien living in "temporary allegiance" under

the protection of English law; therefore an act of state in this sense cannot take place in England in time of peace.

General ground of exemption. Our courts of justice profess themselves not competent to discuss acts of these kinds for reasons thus expressed by the Judicial Committee of the Privy Council:-"The transactions of independent States between each other" (and with subjects of other States), "are governed by other laws than those which municipal courts administer; such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may make " (d).

A series of decisions of the Indian Supreme Courts and

(d) Secretary of State in Council of India v. Kamachee Boye Sahaba (1859), 13 Moo. P. C. 22, 75.

General ground of exemption. The language of the text is based on conditions peculiar to the system of the British government. The American doctrine may be stated thus: An act of state is the commission by the executive branch of the government, for reasons of polity, of an act affecting a person not a citizen. When such an act is made the subject of complaint, the mere avowal, by the executive department of responsibility therefor, will move the court to dismiss the matter from its consideration.

If the act has affected a citizen and the executive department acknowledge responsibility therefor, it must show that the act was within its authority under the Constitution and laws. The government of this republic is a system of powers delegated by the people and as long as the government acts within the limits of those powers the people cannot complain. The guarding of these limits is one of the chief duties and sacred rights of the judiciary; but the judiciary possesses neither rule for determination nor power to enforce its decisions regarding acts of the executive department towards a person not a citizen. The relations of Great Britain to her Indian dependencies has a close parallel in our relations to the Indian nations. The question arose in the case of Cherokee Nation v. State of Georgia (5 Pet. 1), in which the plaintiff sought the aid of the Supreme Court of the United States to restrain the State of Georgia from enforcing certain of its laws directed against the Cherokee Nation. It was held that the court had no power to interfere. "In such a case," said Johnson, J., "the appeal is to the sword and Almighty Justice, not to courts of law or equity."

In Ruan v. Perry (3 Caines, 120) it was held, that orders from the President of the United States and the Secretary of Navy protected a naval officer who stopped a neutral vessel, the property of a foreigner, though the delay caused its subsequent capture by the enemy. See Durand v. Hollins, 4 Blatchf. 451.

the Privy Council have applied this rule to the dealings of the East India Company with native States and with the property of native princes (e). In these cases the line between public and private property, between acts of regular administration and acts of war or of annexation, is not always easy to draw. Most of them turn on acts of political annexation. Persons who by such an act become British subjects do not thereby become entitled to complain in municipal courts deriving their authority from the British Government of the act of annexation itself or anything incident to it. In such a case the only remedy is by petition of right to the Crown. And the effect is the same if the act is originally an excess of authority, but is afterwards ratified by the Crown.

"The leading case on this subject is Buron v. Denman (f). This was an action against Captain Denman, a captain in the navy, for burning certain baracoons on the West Coast of Africa, and releasing the slaves contained in them. His conduct in so doing was approved by a letter written by Mr. Stephen, then Under Secretary of State for the Colonies, by the direction of Lord John Russell, then Secretary of State. It was held that the owner of the slaves [a Spanish subject] could recover no damages for his loss, as the effect of the ratification of Captain Denman's act was to convert what he had done into an act of state, for which no action would lie."

So far Mr. Justice Stephen, in his History of the Criminal Law (g). It is only necessary to add, as he does on the next page, that "as between the sovereign and his subjects there can be no such thing as an act of state. Courts of law are established for the express purpose of limiting public authority in its conduct towards individuals. If one British subject puts another to death or

(e) See Doss v. Secretary of State for India in Council (1875), 19 Eq. 509, and the case last cited.

(1847) 2 Ex. 167. (g) Vol. 11. p. 64.