the states has attempted to stand upon its immunity as a state, suit after suit has been instituted against the officers of the state. In truth these officers in all of these suits were but obeying the orders of their governments, but that has not been always conceded in a straightforward manner; indeed the state has not always gotten its full immunity; there has been some success in this campaign to get at the state through suits against the officers of the state. The opinion just quoted is the outcome of long years, and such as it is, it represents the American view upon this problem of administrative law.

It may often be a difficult question to decide whether in any particular case the suit is in substance against the state or in truth simply against the officer. Belknap v. Schild, 161 U. S. 10 (1896) is hard to disentangle, since in part it is against the government and in part against the officer, as will appear. This bill for an injunction was filed by the owners of letters patent for an improvement in caisson gates, and alleged that the defendants infringed the patent by manufacturing and using such gates. In the defendants' plea to the whole bill, and in that of the Attorney-General on behalf of the United States, the single ground of each was that the only caisson gate that the defendants had any relation with was not made by them and was not used by them for their own benefit, but was made and used by the United States in a dry dock at a navy yard, and the defendants only operated it and used it as commandant, constructor, officer, servant and employee of the United States.

Mr. Justice GRAY treated the question with great con

sideration: The fact so pleaded and suggested could not consistently with previous decisions prevent the defendants from being held liable to the patentee for their own infringement of his patent. There was no error, therefore, in the overruling. But the Circuit Court erred in awarding an injunction against the defendants. In the present case, the caisson gate was a part of the drydock in a navy yard of the United States. The United States then had both the title and the possession of the property. Although this suit was not brought against the United States by name, but against their officers and agents only, nevertheless so far as the bill prayed for an injunction, the United States was the only real party, against whom alone in fact, the relief was asked, and against whom the decree would effectively operate; the plaintiff sought to control the defendants in their official capacity, and in the exercise of their official functions, as representatives and agents of the United States; and thereby to defeat the use by the United States of property owned and used by the United States for the common defense and general welfare; and therefore the United States was an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought; and the suit could not be maintained without violating the principles affirmed in a long series of decisions of this court.

This case opens a new field of inquiry. This is the end of immunity and the beginning of liability. It is important that suit against the administration in whatever form must always fail; and as was said in the preface to this chapter, that is a fundamental condition

under which administration must go on under our system. But it is of overshadowing importance that of every act done in administration by any officer there may be judicial inquiry; and for every act done in the execution of law by any officer without justification of law there may be judgment against the officer. That is an elementary proposition in administrative law under our system-the responsibility of every public officer to the law of the land for every act done in administration.11

§ 15. Personal.

This, then, is a first principle in our administrative law: that the officer may always be impleaded as a private individual. A few cases from the mass of the authorities only need be recited for the principal doctrine. Mostyn v. Fabrigas, 1 Cowp. 161 (1774), has been often remarked. This was an action by Fabrigas against Mostyn brought in the English Common Pleas for false imprisonment for a period of eight months in the Island of Minorca. The defendant pleaded a special justification that he was at the time Governor of Minorca, and

11 OFFICIAL.-Osborn v. Bank, 9 Wheat. 738; Louisiana v. Jumel, 107 U. S. 711; Poindexter v. Greenhow, 114 U. S. 270; In Re Ayers, 123 U. S. 443; Pennoyer v. McConnaughy, 140 U. S. 1; United States v. Clark, 31 Fed. 710; In Re Fair, 100 Fed. 149; Wolffe v. State, 79 Ala. 201; Lee v. Huff, 61 Ark. 494; Nougues v. Douglass, 7 Cal. 65; Sharps' Mfg. Co. v. Rowan, 34 Conn. 332; McCord v. High, 24 Ia. 336; Strickfaden v. Zipprick, 49 Ill. 286; Lecourt v. Gaster, 50 La. Ann. 521; Michigan Bank v. Hastings, 1 Doug. 241; Newman v. Elam, 30 Miss. 507; Beckham v. Nacke, 56 Mo. 546; Northern Pac. R. Co. v. Carland, 5 Mont. 146; State v. Kruttschnitt, 4 Nev. 178; Scudder v. Trenton, etc., Co., 1 N. J. Eq. 694; Woolley v. Baldwin, 101 N. Y. 688; Yealy v. Fink, 43 Pa. St. 212; Water Power Co. v. Electric Co., 43 S. C. 168; McKinney v. Robinson, 84 Tex. 489; Kerr v. Woolley, 3 Utah 456; Board of Public Works v. Gannt, 76 Va. 455.

that as such he ordered the arrest and imprisonment; wherefore, he prayed judgment. At the trial the jury gave a verdict for the plaintiff with £3,000 damages.

Lord MANSFIELD said: To lay down in an English court of justice such a monstrous proposition as that a governor acting by virtue of letters patent under the great seal is accountable only to God, and his own conscience; that he is absolutely despotic, and can spoil, plunder and affect his Majesty's subjects, both in their liberty and property, with immunity,-is a doctrine that cannot be maintained. Therefore, in every light in which I see the subject, I am of opinion that the action holds emphatically against the governor, if it did not hold in the case of any other person.

As a matter of constitutional history in England, this is the final and emphatic case which marks the assertion of the principal doctrine beyond any subsequent question. In this same last quarter of the eighteenth century the whole doctrine hung in the balance in the cases of the general warrants where the government openly demanded the immunity of its officers from judicial inquiry. Since those times it has been common knowledge that any officer may be sued. Indeed, suits against officers are of such every-day occurrence in the courts that it causes no comment whatever when a public officer is a party defendant. It is rather a thing contemplated in taking public office; for few can serve a term in any position of importance without being summoned into the courts again and again. Under so rigid a limitation as this, administration must proceed in a system like ours where the law of the land is supreme over all persons alike, of whatever station they may be.

That principle which makes any officer under any circumstances liable in damages for any act done in enforcement of the law which may prove to have been done without justification of law, when the matter is later examined, was not pushed to extreme cases without litigation. As important a state trial as one can find in the Supreme Court is Little v. Barreme, 2 Cr. 170 (1804). On the 2nd of December, 1799, the Danish brigantine Flying Fish, Barreme, owner, was captured near the island of Hispaniola by the American frigate Boston upon suspicion of violating the non-intercourse act. Captain Little, the Commander of the Boston, acted in strict accordance with orders of the President of the United States in making the seizure; it later ap peared in proof that the Flying Fish had not in truth violated the statute; thereupon damages were assessed against Little.

I

Chief Justice MARSHALL delivered the opinion: was at first strongly inclined to think that where in consequence of orders from legitimate authority a ves sel is seized with pure intention the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken and I have receded from this first opinion. I acquiesce in that of my brethren which is that the instructions cannot change the nature of the transaction or legalize an act which without those instructions would have been a plain trespass. It becomes then unnecessary to inquire whether probable cause exists; Captain Little, then, must be answerable in damages.