destroys his property by the express command of the King, that command is no protection to the person who executes it unless it is in itself lawful, and it is the duty of the proper courts of justice to determine whether it is lawful or not": as, for example, when the Court of King's Bench decided that a Secretary of State had no power to issue general warrants to search for and seize papers and the like (h).

Local actions against viceroy or governor. Another question which has been raised in the colonies and Ireland, but which by its nature cannot come before an English court for direct decision, is how far an action is maintainable against an officer in the nature of a viceroy during his term of office, and in the local courts of the territory in which he represents the Crown. It has been held by the Judicial Committee that the LieutenantGovernor of a colony is not exempt from suit in the courts of that colony for a debt or other merely private cause of action (i); and by the Irish courts, on the other hand, that the Lord-Lieutenant is exempt from being sued in Ireland for an act done in his official or "politic" capacity (j).

Power to exclude aliens. An alien not already admitted to the enjoyment of civil rights in England (or any British possession) seems to have no remedy in our law if prevented by the local executive authority from entering

(h) Entick v. Carrington, 19 St. Tr. 1043.

(i) Hill v. Bigge (1841), 3 Moo. P. C. 465; dissenting from Lord Mansfield's dictum in Mostyn v. Fabrigas, Cowp. 172, that "locally during his government no civil or criminal action will lie against him;" though it may be that he is privileged from personal arrest where arrest would, by the local law, be part of the ordinary process.

Luby v. Wodehouse, 17 Ir. C. L. R. 618; Sullivan v. Spencer, Ir. R. 6 C. L. 173, following Tandy v. Westmoreland, 27 St. Tr. 1246. These cases go very far, for the Lord-Lieutenant was not even called on to plead his privilege, but the Court stayed proceedings against him on motion. As to the effect of a local Act of indemnity, see Phillips v. Ayre (1870), Ex. Ch. L. R. 6 Q. B. 1.

British territory (k). It seems doubtful whether admission to temporary allegiance in one part of the British Empire would confer any right to be admitted to another part.

Acts of foreign powers. There is another quite distinct point of jurisdiction in connection with which the term "act of state" is used. A sovereign prince or other person representing an independent power is not liable to be sued in the courts of this country for acts done in a sovereign capacity; and this even if in some other capacity he is a British subject, as was the case with the King of Hanover, who remained an English peer after the personal union between the Crowns of England and Hanover was dissolved (7). This rule is included in a wider one which not only extends beyond the subject of this work, but belongs to international as much as to municipal law. It has been thus expressed by the Court of Appeal: "As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces

(k) Musgrave v. Chung Teeong Toy, '91, A. C. 272, 60 L. J. P. C. 28.

(1) Duke of Brunswick v. King of Hanover (1843-4), 6 Beav. 1, 57; affirmed in the House of Lords, 2 H. L. C. 1.

Acts of foreign powers. A sovereign power cannot be sued in the federal or state courts of the United States, but it may exercise its option to appear. Therefore, a complaint in which a sovereign power is made a co-defendant is not demurrable until the time has elapsed for the exercise of this option. Manning v. State of Nicaragua, 14 How. Pr. 517.

A state of the Union cannot be sued in the courts of a sister state without its express consent. People v. Talmage, 6 Cal. 256; Treasurer v. Cleary, 3 Rich. 372; Hosmer v. De Young, 1 Tex. 764; Patterson v. Shaw, 6 Ind. 377; Williamsport etc. R. Co. v. Commonwealth, 33 Pa. St. 288; Beers v. Arkansas, 20 How. 527.

In Chisholm v. Georgia, (2 Dall. 419) it was held, that a state was suable in the federal courts. This decision led to the adoption of the eleventh Amendment in negation of that construction of the constitution. See North Carolina v. Temple, 134 N. S. 22; Hans v. Louisiana, 134 U. S. 1.

every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its Courts, any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador (m), though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction" (n).

Summary. If we may generalize from the doctrine of our own courts, the result seems to be that an act done by the authority, previous or subsequent, of the government of a sovereign state in the exercise of de facto sovereignty (o), is not examinable at all in the courts of justice of any other state. So far forth as it affects persons not subject to the government in question, it is not examinable in the ordinary courts of that state itself. If and so far as it affects a subject of the same state, it may be, and in England, it is, examinable by the courts in their ordinary jurisdiction. In most Continental countries, however, if not in all, the remedy for such acts must be sought before a special tribunal (in France the Conseil d'Etat: the preliminary question whether the ordinary court or the Conseil d'Etat has jurisdiction is decided by the Tribunal des Conflits, a peculiar and composite court) (p).

he

(m) What if cattle belonging to a foreign ambassador were distrained damage feasant? It would seem could not get them back without submitting to the jurisdiction.

(n) The Parlement Belge (1880), 5 P. D. 197, 214.

(0) I have not met with a distinct statement of this qualification in existing authorities, but it is evidently assumed by them, and is necessary for the

preservation of every state's sovereign rights within its own jurisdiction. Plainly the command of a foreign gov. ernment would be no answer to an action for trespass to land, or for the arrest of an alleged offender against a foreign law, within the body of an English county.

(p) Law of May 24, 1872. But the principle is ancient, and the old law is still cited on various points.

Judicial acts.

2.- Judicial Acts

Next as to judicial acts. The rule is

that no action will lie against a judge for any acts dɔne or words spoken in his judicial capacity in a court of justice" (q). And the exemption is not confined to judges of superior courts. It is founded on the necessity of judges being independent in the exercise of their office, a reason which applies equally to all judicial proceedings.

(q) Scott v. Stansfield (1868), L. R. 3 Ex. sums up the effect of many previous 220, 37 L. J. Ex. 155, which confirms and decisions.

Judicial acts. It is an accepted rule that judicial acts are excepted from liability. Brodie v. Rutledge, 2 Bay, 69; Ambler v. Church, 1 Root, 211; Phelps v. Lill, 1 Day, 315; Moor v. Ames, 3 Caines, 170; Young v. Herbert, 2 Nott. & M. 168; Yates v. Lansing, 5 Johns. 282; 9 Id. 395; Vanderheyden v. Young, 11 Id. 150; Ely v. Thomson, 3 A. K. Marsh. 76; Little v. Moore, 4 N. J. L. 74; Tracy v. Williams, 2 Conn. 113; Thomkins v. Sands, 8 Wend. 408; Lining v. Bertham, 2 Bay, 1; Burnham v. Stevens, 33 N. H. 247; Ross v. Rittenhouse, 2 Dall. 160; Hamilton v. Williams, 26 Ala. 527; Benley v. Wiggins, 5 Harr. (Del.) 462; Carter v. Dow, 16 Wis. 298; Maguire v. Hughes, 13 La. An. 281; Way v. Townsend, 4 Allen, 114; Wood v. Ruland, 10 Mo. 143; Hatfield v. Towsley, 3 Ia. 584; Lancaster v. Lane, 19 Ill. 242; Deal v. Harris, 8 Md. 40; Walker v. Hallock, 32 Ind. 239; Busteed v. Parsons, 54 Ala. 393; Lange v Benedict, 73 N. Y. 12; Bevard v. Hoffman, 18 Md. 379.

The text substantially states the American law upon the responsibility of judicial officers acting without jurisdiction or in excess thereof. See Grove v. Van Duyn, 44 N. J. L. 654; Clark v. Holmes, 1 Dough. (Mich.) 390; Blood v. Sayre, 17 Vt. 609; Wright v. Rouse, 18 Neb. 234; Piper v. Pearson, 2 Gray, 120; Borden v. Fitch, 15 Johns. 121; Estopinal v. Peyroux, 37 La. An. 477; Patzack v. Van Gerichten, 10 Mo. App. 424; Case v. Shepherd, 2 Johns. Cas. 27; Allen v. Gray, 11 Conn. 95; Barkdoo v. Randall, 4 Blackf. 476; Connelly v. Wood, 31 Kan. 359; Olmstead v. Brewer, 91 Ala. 124; 8 So, Rep. 345; Bradley v. Fisher, 13 Wall. 348; Stewart v. Cooley, 23 Minn. 347.

There are dicta to the effect that a judicial officer is liable for malicious and corrupt acts committed in his judicial capacity. Randall v. Brigham, 7 Wall. 253; Garfield v. Douglass, 22 Ill. 100.

But the proper remedy in such cases lies in the removal of the official by impeachment and not in an attack upon that protection which public policy bestows upon the office. Kress v. State, 65 Ind. 106; Pratt v. Gardner, 2 Cush. 98; State v. Hastings (Neb.), 55 N. W. Rep. 774.

But in order to establish the exemption as regards proceedings in an inferior court, the judge must show that at the time of the alleged wrong-doing some matter was before him in which he had jurisdiction (whereas in the case of a superior court it is for the plaintiff to prove want of jurisdiction); and the act complained of must be of a kind which he had power to do as judge in that matter.

Thus a revising barrister has power by statute (r) "to order any person to be removed from his court who shall interrupt the business of the court or refuse to obey his lawful orders in respect of the same" but it is an actionable trespass if under colour of this power he causes a person to be removed from the court, not because that person is then and there making a disturbance, but because in the revising barrister's opinion he improperly suppressed facts within his knowledge at the holding of a former court (8). The like law holds if a county court judge commits a party without jurisdiction, and being informed of the facts which show that he has no jurisdiction (); though an inferior judge is not liable for an act which on the facts apparent to him at the time was within his jurisdiction, but by reason of facts not then shown was in truth outside it (u).

A judge is not liable in trespass for want of jurisdiction, unless he knew or ought to have known of the defect; and it lies on the plaintiff, in every such case, to prove that fact (x). And the conclusion formed by a judge, acting judicially and in good faith, on a matter of fact which it is within his jurisdiction to determine, cannot be disputed in an action against him for anything judicially done by him in the same cause upon the footing of that conclusion (y).

(r) 28 & 29 Vict. c. 36, s. 16.

(8) Willis v. Maclachlan (1876), 1 Ex. D. 376, 45 L. J. Q. B. 689.

(t) Houlden v. Smith (1850), 14 Q. B. 841, 19 L. J. Q. B. 170.

(u) Lowther v. Earl of Radnor (1806), 8 East, 113, 118.

(x) Calder v. Halket (1839), 3 Moo. P. C. 28, 78.

(y) Kemp v. Neville (1861), 10 C. B. N. S. 523, 31 L. J. C. P. 158 (an action against the Vice-Chancellor of the University of Cambridge), and authorities there cited.