No. 4-04-00582-CV
IN THE COURT OF APPEALS FOR THE
FOURTH COURT OF APPEALS DISTRICT
_______________________________
Ronald F. Avery,
APPELLANT
VS.
GUADALUPE-BLANCO RIVER AUTHORITY, et at.
APPELLEES
_____________________________
ON APPEAL FROM THE 25TH JUDICIAL DISTRICT COURT
THE HONORABLE B. B. SCHRAUB, JUDGE PRESIDING
_____________________________
APPELLANT’S APPENDIX
_______________________________
TABLE OF CONTENTS
APPELANT’S APPENDIX
Avery v. GBRA et al.
1. Texas Jurisprudence 3rd, §19:........................................................................................................................................... 4
2. Stone v. Ariz (Sov Imm came by common law court ruling
and it can go be common law court ruling):............. 4
3. Muskopf v. Corning Hospital Dist. Cal.Sup.Crt.1961:.................................................................................................. 7
4. A clear understanding of the operations of government:.............................................................................................. 8
5. Molitor v. Kaneland Community Unit District No. 302
(163 N.E.2d 89):................................................................... 9
6. False Tautology:................................................................................................................................................................. 11
7. Government is similar to insurance:.............................................................................................................................. 11
8. Municipal Corporation capable of much harm and
responsibility:........................................................................... 12
9. Reward of Appellant Apply new rule in instant case:.................................................................................................. 13
10. Supreme Court Admission that People of Texas are
Sovereign:......................................................................... 14
11. Southwestern Law Journal vol. 23 p. 341, May 1969:........................................................................................... 15
12. Foregoing correct except for means of solution:.................................................................................................... 17
13. Villanova Law Review –(Vill L Rev 13:583 Spring ’68):....................................................................................... 17
14. Sovereignty has to do with Foreigners:.................................................................................................................... 19
15. Duke Law Review – The Role of the Courts in Abolishing
Governmental Immunity (Duke L R 1964:888): 20
16. Yale Law Journal – Government Liability in Tort by
Edwin M. Borchard (34 Yale L J 1):............................ 21
17. Catch 22!........................................................................................................................................................................ 26
18. Thomas Hobbes The
Leviathan Part II Chap 26, 2:................................................................................................ 30
19. Rev. Samuel Rutherford - Lex Rex or The Law and the Prince:......................................................................... 31
20. The Citizens cannot transfer their Sovereignty to the
State:.............................................................................. 38
21. Sovereignty is in the Citizen not the King or State:.............................................................................................. 39
22. Law is Sovereign over All:.......................................................................................................................................... 40
23. Power of the Citizens in America:............................................................................................................................. 47
24. On the Accidental Inconveniences the Citizen should
Suffer:............................................................................. 47
25. Alexander Hamilton The
Federalists Papers No. 81.............................................................................................. 50
His so-called support for sovereignty of state over the citizen............................................................................................. 50
26. Alexander Hamilton The
Federalists Papers No. 31.............................................................................................. 51
27. Alexander Hamilton The
Federalists Papers No. 32.............................................................................................. 51
28. Alexander Hamilton The
Federalists Papers No. 78:............................................................................................ 52
29. Alexander Hamilton The
Federalists Papers No. 84:............................................................................................ 56
30. A short history of the Texas Tort Claims Act of 1967:......................................................................................... 57
By R. Michael Northrup Sovereign
Immunity: Why it’s Good to be King........................................................................ 57
31. The Trial Court’s Order Dismissing the Suit
(Defendants’ Plea and Supplemental Plea to the Jurisdiction). 58
32. The Trial Court’s Cover Letter Accompanying the Order
Mailed to the Parties............................................ 59
33. Texas Tort Claims Act:................................................................................................................................................ 60
34. Republic of Texas Declaration of Independence:..................................................................................................... 61
35. Republic of Texas Constitution of 1836:.................................................................................................................. 62
1.
“A constitution is adopted with reference to existing laws that are not changed unless they are inconsistent with constitutional provisions.”[1]
2.
Stone v.
“We are of the opinion that when the reason for a certain rule
no longer exists, the rule itself should be abandoned. After a thorough
re-examination of the rule of governmental immunity from tort liability, we now
hold that it must be discarded as a rule of law in
“In 75 A.L.R. 1196, a classic observation as to the sociological aspects of sovereign immunity appears which has since been quoted with approval in several jurisdictions: “* * * The whole doctrine of governmental immunity from liability for tort rests upon a rotten foundation. It is almost incredible that in this modern age of comparative sociological enlightenment, and in a republic, the medieval absolutism supposed to be implicit in the maxim, ‘the King can do no wrong,’ should exempt the various branches of the government from liability for their torts, and that the entire burden of damage resulting from the wrongful acts of the government should be imposed upon the single individual who suffers the injury, rather than distributed among the entire community constituting the government, where it could be borne without hardship upon any individual, and where it justly belongs.”[3]
“It requires but a slight appreciation of the facts to realize that if the individual citizen is left to bear almost all the risk of a defective, negligent, perverse or erroneous administration of the state’s functions, an unjust burden will become graver and more frequent as the government’s activities are expanded and become more diversified.”[4]
“Sovereign or governmental immunity began with the personal prerogatives of the King of England upon the theory that “the King can do no wrong,” and even though at a very early date in American history we overthrew the reign of the English King the doctrine somehow became entrenched in our judicial code. Professor Borchard has termed this phenomenon as “one of the mysteries of legal evolution.”[5]
“Its survival (sovereign or governmental immunity) for such a great period of time in this country, where the royal prerogative is unknown, has perhaps been even more remarkable, considering it has been universally criticized as an anachronism with out rational basis. Most writers and cases considering this fact have claimed that its only basis of survival has been on grounds of antiquity and inertia.”[6] (Parenthesis added)
“The first case in
“In a 1957 case, The Colorado court stated: In Colorado ‘sovereign immunity’ may be a proper subject for discussion by students of mythology but finds no haven or refuge in this court.”[9] However, this feeling was short-lived for three years later the same court invoked the immunity theory as to the governmental functions of a county.”[10]
“The
“The city of Milwaukee case stated that even though the principal case only related specifically to a city, the abrogation of the doctrine should be considered as total: “to all public bodies within the state: the state, counties, cities, villages, towns, school districts, sewer districts, drainage districts, and any other political subdivisions of the state-whether they be incorporated or not.[14]”[15]
“After considering all the facets of the problem, we feel that
the reasoning used by the
“It has been urged by the adherents of the sovereign immunity
rule that the principle has become so firmly fixed that any change must come
from the legislature. In previous decisions (the latest being Lee v. Kunklee,
supra)[17] this
court concurred in this reasoning. Upon reconsideration we realize that the
doctrine of sovereign immunity was originally judicially created. We are now
convinced that a court-made rule, when unjust or outmoded, does not necessarily
become with age invulnerable to judicial attack. This doctrine having been
engrafted upon
“Under the theory of respondeat superior, the State itself as employer would also be liable.”[19]
3. Muskopf v. Corning Hospital Dist. Cal.Sup.Crt.1961:
“After a re-evaluation of the rule of governmental immunity from tort liability we have concluded that it must be discarded as mistaken and unjust.”[20]
“The rule of county or local district immunity did not originate
with the concept of sovereign immunity. The first case to hold that local
government units were not liable for tort was Russell v. men of
“The rule of the Russell case was first brought into this
country by Mower v. Inhabitants of Leicester, 9
“None of the reasons for its continuance can withstand analysis. No one defends total governmental immunity. In fact, it does not exist. It has become riddled with exceptions, both legislative and judicial, and the exceptions operate so illogically as to cause serious inequality.”[23]
“It is strenuously urged, however, that it is for the Legislature and not the courts to remove the existing governmental immunities. Two basic arguments are made to deny the court’s power: first, that by enacting various statutes affecting immunity the Legislature has determine that no further change is to be made by the court; and second, that by the force of stare decisis the rule has become so firmly entrenched that only the Legislature can change it. Neither argument is persuasive.”[24]
“The doctrine of governmental immunity was originally court made.”[25]
4. A clear understanding of the operations of government:
“Abrogation of governmental immunity does not mean that the
state is liable for all harms that result from its activities. Both the state
and individuals are free to engage in many activities that result in harm to
others so long as such activities are not tortuous. Thus the harm resulting from
free competition among individuals is not actionable, nor is the harm resulting
from the diversion of business by the state’s relocation of a highway. People
v. Symons, 54 Cal.2d 855, 9 Cal.Rptr. 363, 357 P.2d 451; Holloway v. Purcell,
35 Cal.2d 220, 230, 217 P.2d 665. It does not follow, however, that torts may
not be committed in carrying on such activities. A competitor may be liable for
the harm resulting from his violation of traffic laws in getting his product to
market, just as the state may be liable for the harm caused by its agents’
violations of such laws. Although it “is not a tort for government to govern.”
(Jackson, J., dissenting in Dalchite v.
“Thus in holding that the doctrine of governmental immunity for torts for which its agents are liable has no place in our law we make no startling break with the past but merely take the final step that carries to its conclusion an established legislative and judicial trend.”[27]
5. Molitor v. Kaneland Community Unit District No. 302 (163 N.E.2d 89):
They were unwilling to distinguish between how a school district was formed as to its immunity and called all “quasi-municipal corporations”[28] No more “highly technical distinctions” just like GBRA In Illinois too the court created sovereign immunity and can abolish it:
“It appears that while adhering to the old immunity rule, this court has not reconsidered and re-evaluated the doctrine of immunity of school districts for over fifty years. During these years, however, this subject has received exhaustive consideration by legal writers and scholars in articles and texts, almost unanimously condemning the immunity doctrine. See, Borchard, Governmental Liability in Tort.”[29]
“Historically we find that the doctrine of the sovereign immunity of the state, the theory that “the King can do no wrong,” was first extended to a subdivision of the state in 1788 in Russell v. Men of Devon, 2 term rep. 671, 100 Eng.Rep. 359. * * * the decision that the county was immune was based chiefly on the fact that there were no corporate funds in Devonshire out of which satisfaction could be obtained, plus a fear of multiplicity of suits and resulting inconvenience to the public.”[30]
“It should be noted that the Russell case was overruled by the
English courts, and that in 1890 it was definitely established that in
“Later decisions following the Kinnare doctrine have sought to advance additional explanations such as the protection of public funds and public property, and to prevent the diversion of tax moneys to the payment of damage claims.”[32]
“Rather we interpret that section as expressing dissatisfaction with the court created doctrine of governmental immunity and an attempt to cut down that immunity where insurance is involved.”[33]
“It is a basic concept underlying the whole law of torts today that liability follows negligence, and that individuals and corporations are responsible for the negligence of their employees acting in the course of their employment. The doctrine of governmental immunity runs directly counter to that basic concept. What reasons, then, are so impelling as to allow a school district, as a quasi-municipal corporation, to commit wrongdoing without any responsibility to its victims, while any individual or private corporation would be called to task in court for such tortuous conduct?”[34]
“The original basis of the immunity rule has been called a “survival of the medieval idea that the sovereign can do no wrong. (38 Am. Jur., Mun.Corp., sec 573, p. 266.)”[35]
“Likewise, we agree with the Supreme Court of Florida that in preserving the sovereign immunity theory, courts have overlooked the fact that the Revolutionary War was fought to abolish that “devine right of kings” on which the theory is based.”[36]
Regarding the inclusion of liability in the purpose of Government: Circular Argument or false tautology:
“In the first place, analysis of the theory shows that it is based on the idea that payment of damage claims is a diversion of educational funds to an improper purpose. As many writers have pointed out, the fallacy in this argument is that it assumes the very point which is sought to be proved, i.e., that payment of damage claims is not a proper purpose. Logically, the ‘No fund’ or ‘trust fund’ theory is without merit because it is of value only after a determination of what is a proper school expenditure. To predicate immunity upon the theory of a trust fund is merely to argue in a circle, since it assumes an answer to the very question at issue, to wit, what is an educational purpose?”[37]
7. Government is similar to insurance:
Government paying for its own torts is not economically harmful for the whole but should function the same as insurance. Government is a form of insurance with different terms where in it must not do itself what it is to prevent in others, and if it does, it must pay.
“We are in accord with Dean Green when he disposed of this problem as follows: “There is considerable talk in the opinions about the tremendous financial burdens tort liability would cast upon the taxpayer. In some opinions it is stated that this factor is sufficient to warrant the courts in protecting the taxpayer through the immunity which they have thrown around municipal corporations. While this factor may have had compulsion on some of the earlier courts, I seriously doubt that it has any great weight with the courts in recent years. In the first place, taxation is not the subject matter of judicial concern where justice to the individual citizen is involved. It is the business of other departments of government to provide the funds required to pay the damages assessed against them by the courts. Moreover, the same policy that, would protect governmental corporations from the payment of damages for the injuries they bring upon others would be equally pertinent to a like immunity to protect private corporations, for conceivably many essential private concerns could also be put out of business by the damages they could incur under tort liability. But as a matter of fact, this argument has no practical basis. Private concerns have rarely been greatly embarrassed, and in no instance, even where immunity is not recognized, has a municipality been seriously handicapped by tort liability. This argument is like so many of the horribles paraded in the early tort cases when courts were fashioning the boundaries of tort law. It has been thrown in simply because there was nothing better at hand. The public’s willingness to stand up and pay the cost of its enterprises carried out through municipal corporations is no less than its insistence that individuals and groups pay the costs of their enterprises. Tort liability is in fact a very small item in the budget of any well organized enterprise.” Green, Freedom of Litigation, 38 Ill.L.Rev. 355, 378.”[38]
8. Municipal[39] Corporation capable of much harm and responsibility:
“As Dean Harno said: “A municipal corporation today is an active and virile creature capable of inflicting much harm. Its civil responsibility should be co-extensive. The municipal corporation looms up definitely and emphatically in our law, and what is more, it can and does commit wrongs. This being so, it must assume the responsibility of the position it occupies in society.” (Harno, Tort Immunity of Municipal Corporations, 4 Ill.L.Q. 28, 42.)”[40]
“We conclude that the rule of school district immunity is unjust, unsupported by any valid reason, and has no rightful place in modern society.
“Defendant strongly urges that if said immunity is to be
abolished, it should be done by the legislature, not by this court. With this
contention we must disagree. The doctrine of school district immunity was
created by this court alone. Having found that doctrine to be unsound and
unjust under present conditions, we consider that we have not only the power,
but the duty, to abolish that immunity. “We
closed our courtroom doors without legislative help, and we can likewise open
them.” Pierce v.
9. Reward of Appellant Apply new rule in instant case:
“First, if we were to merely announce the new rule without applying it here, such announcement would amount to mere dictum. Second, and more important, to refuse to apply the new rule here would deprive appellant of any benefit from his effort and expense in challenging the old rule which we now declare erroneous. Thus there would be no incentive to appeal the upholding of precedent since appellant could not in any event benefit from a reversal invalidating it.”[42]
Dickson v. Strickland, Secretary of State, et al. (265 S.W. Tex.1012 1924) Constitutional law and Common Law and Statutes overruled as inconsistent with Constitution:
“Ruling Case Law says: Where the Constitution declares the qualifications for office, it is not within the power of the Legislature to change or add to these unless the Constitution gives that power.” 9 R.C.L. 1124.”[43]
“In our judgment, when the Constitution undertakes to prescribe qualifications for office, its declaration is conclusive of the whole matter, whether in affirmative or in negative form.”[44]
“It is the declared law, by both the Court of Criminal Appeals and the Supreme Court of this State, that it is beyond the power of the Legislature to add an additional qualification for an elector to those prescribed by the Constitution.”[45]
“So, it was utterly beyond the power of the Legislature to authorize the courts to keep the name of a candidate for Governor off any election ballot, when possessed of every constitutional qualification, regardless of whether he possessed the additional qualifications specified in article 3082.”[46]
10. Supreme Court Admission that People of Texas are Sovereign:
“When the competency of women to hold office in
“To approach the subject from any other viewpoint would not
accord with the constitutional history of
“It would be in the power of such convention to take away or destroy individual rights, but such an intention would never be presumed; and to give effect to a design so unjust and unreasonable would require the support of the most direct, explicit affirmative declaration of such intent.”[49]
“The Constitution is the supreme law of the state. It is elementary that a statute or principle of the common law in conflict with the Constitution is void. So, if there be any conflict between the common law, declaring Mrs. Ferguson ineligible, and the Constitution, declaring her eligible, it is our duty to give effect to the Constitution.”[50]
“The truth is that the old common law principles invoked against
Mrs. Ferguson have never been in force in
England, as she advanced in Christian civilization, was fast to find means to rid herself of the iniquities which must have resulted, had some of the strict common-law rules governing marital rights and duties been rigidly applied.”[51]
“An office is essentially a trust or agency for the benefit of the public. The supreme qualification is unselfish fidelity to duty.”[52]
11. Southwestern Law Journal vol. 23 p. 341, May 1969:
Southwestern Law Journal – The Governmental Immunity Doctrine in Texas – An Analysis and Some Proposed Changes by Glen A. Majure, W.T. Minick and David Snodgrass, Southwestern Law Journal vol. 23 p. 341, May 1969(Sw L J 23:341 My’69):
“Governmental immunity is one of the more ancient of the common law rules. The doctrine deprives the judiciary of power to adjudicate disputes against the government, the theory being that the sovereign is above the courts and thus not susceptible of being sued in its own courts.
Sovereign immunity, as it developed in
Nevertheless, the doctrine won rapid and widespread acceptance
in the
“The trend throughout the
“Scope of Constitutional
Inquiry. First, the scope of the constitutional problems relating to
legislative abrogation of governmental immunity in
12. Foregoing correct except for means of solution:
The last part of the foregoing would be true if it were not for the fact that sovereign and governmental immunity are repugnant to the Texas Constitution and cannot be manipulated in any way by the Legislature other than to declare them void from inception as unlawful, while it is left to the judiciary to find them repugnant under their common law jurisdiction under Texas Constitution Art. 16 Sec. 48.
13. Villanova Law Review –(Vill L Rev 13:583 Spring ’68):
Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by David T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) This is real sovereign immunity dealing with foreign sovereigns where immunity is lawful:
“Over the span of a century and a half many legal rules and concepts evolve and unfold in response to variant social conditions and as a means of restructuring social activity. Frequently a legal doctrine as presently understood and applied bears little relation, and may even be inapposite, to its germinal case.[61] The original contours of a legal concept may, therefore, often be of small practical import in its current application. This general thesis is not applicable, however, to the doctrine of sovereign immunity – that principle which provides that a recognized foreign sovereign is not susceptible, without its consent, to the judicial process of the courts in any other state. Although more than one hundred and fifty years old, the case vivifying this legal concept, The Schooner Exchange v. McFadden,[62] is still repeatedly referred to in judicial opinions.[63]”[64]
“Under the absolute theory the sole inquiry is whether or not the entity being sued is a foreign sovereign. If so the court will dismiss the action.[65]”[66]
“The premise requires that all exemptions from the sovereign’s absolute power must come from within, from the consent of the sovereign state itself.[67]”[68]
“Thus, the Court concluded that if the port is open to ships of all nations, an armed public vessel may enter and obtain the protection of the local sovereign, and the immunity from jurisdiction, although no specific license to enter is granted.[69]
The foundation of these concessions is the common consent of the nation states and their coequal dignity. “One sovereign being in no respect amenable to another; and being bound by obligations of the highest character not to degrade the dignity of his nation, by placing himself or its sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only under an express license, or in the confidence that the immunities belonging to his independent sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to him.[70]”[71]
“For more than a hundred years following The Schooner Exchange the vast majority of the cases involving a possible plea of sovereign immunity were suits in admiralty. Ships of foreign nations were libeled in American ports, and jurisdiction in rem and quasi in rem was thereby established. The opinions in these cases are weighted with references to The Schooner Exchange. Immunity was generally granted to those ships in the actual possession of a foreign government and employed for a public purpose. Mere governmental ownership of the vessel, without allegation of public use and possession, was, however, held to be insufficient.”[72]
14. Sovereignty has to do with Foreigners:
Herein, is the real nature of Sovereign Immunity from
jurisdiction. It was not for the agent of the sovereign citizen to harm the
citizen with impunity but to avoid prosecution of the agent of the sovereign by
a foreigner, which was to be resolved between jurisdictions. This was so that
the agents of all nations would be respected in each others territory. The
violation of the rights of citizens of other nations if not settled between the
nations brought on wars. But the state of
“Throughout this rather abstract discussion of the absolute and restrictive theory of sovereign immunity, the pragmatic interests of the private party plaintiff has been given only passing consideration. Since the absolute theory of sovereign immunity subsumes the restrictive and grants to a foreign nation even greater measure of protection, there can be little diplomatic or political embarrassment to our government consequent to its application by our courts. Thus, any determination to recast the doctrine of sovereign immunity will probably be based on considerations of fairness and justice to the private plaintiff.[73] Those same pressures which impelled enactment of the Federal Tort Claims Act and the Tucker Act may force a more definitive articulation of a plaintiff’s rights. Two possible procedures might be utilized. Treatise may be entered into which more precisely detail the rights of citizens of one contracting party to sue the other nation state.[74] Alternatively, a congressional enactment such as the Hickenlooper Amendment[75] might be employed to delineate the precise scope of the sovereign immunity doctrine in American courts.”[76]
15. Duke Law Review – The Role of the Courts in Abolishing Governmental Immunity (Duke L R 1964:888):
“The abolition of the governmental immunity doctrine has been urged since before the turn of the century. Until recently, however, courts have refused to give tort relief in the absence of legislation or facts on which the immunity doctrine could be circumvented. Since governmental enterprises continue to expand in scope at an ever increasing rate, their contact with and influence on the individual becomes more significant. Therefore, the unpredictable and often inequitable consequences resulting from the “governmental-proprietary” dichotomy, “discretionary-ministerial” distinction and other judicial attempts to designate areas of governmental tort liability and immunity have been increasingly lamented from the bench as well as the bar. Reinforced by growing acceptance of a “spread-the-loss” philosophy, commentators have urged that public entities should be held responsible for torts committed by their employees within the scope of their employment.
Despite appeals for reform from the courts and commentators, most state legislatures have failed to provide a satisfactory solution. Within the last seven years, however, several courts have abolished the governmental immunity doctrine by judicial fiat,[77] and it seems likely that other courts will soon follow that path.”[78]
16. Yale Law Journal – Government Liability in Tort by Edwin M. Borchard (34 Yale L J 1):
“The common law and the political theory underlying both British
and American constitutional law have been regarded as a bulwark of protection
to the individual in his relations with the government. The “rule of law” which
Dicey and others extol is designed by judicial control to restrict within the
bounds of legality the operation of the governmental machine in its contact
with the citizen. Yet it requires but a slight appreciation of the facts to
realize that in Anglo-American law the individual citizen is left to bear
almost all the risks of a defective, negligent, perverse or erroneous
administration of the State’s functions, an unjust burden which is becoming
graver and more frequent as the Government’s activities become more diversified
and as we leave to administrative officers in even greater degree the
determination of the legal relations of the individual citizen. Obviously the
Administration cannot be held to the obligation of guaranteeing the citizen
against all errors of defects, for life in an organized community requires a
certain number of sacrifices and even risks. The unexampled expansion of the police
power in the
“It was Lord Macaulay who remarked that “the primary end of Government is the protection of the persons and property of men.
“The reason for this long-continued and growing injustice in Anglo-American law rests, of course, upon a medieval English theory that “the King can do no wrong,” which without sufficient understanding was introduced with the common law into this country, and has survived mainly be reason of it’s antiquity. The facts that the conditions which gave it birth and that the theory of absolutism which kept it alive in England never prevailed in this country and have since been discarded by the most monarchial countries of Europe, have nevertheless been unavailing to secure legislative reconsideration of the propriety and justification of the rule that the State is not legally liable for the torts of its officers. * * * But no serious effort has been made to penetrate the mysticism encumbering this department of the law and to relieve it of its theological and metaphysical conceptions and misconceptions.
“Realization spasmodically by the courts, and occasionally in particular cases by legislatures, of the unwarranted hardship often worked by the rule that the State is not liable for the torts of its officers, and the desire to spuare the demands of justice with the maintenance of a legal anachronism canonized as a legal maxim, have brought about the result, by the introduction of fictions, artificial distinctions and concessions to expediency, that the law governing the redress of the individual against the public authorities, national, State, or municipal, for injuries sustained in the exercise of governmental powers, is in a state of incongruity and confusion unique in history. The hazards run by the administrative officer who may have acted in perfect good faith, and by the private individual, illustrated in such cases as Miller v. Horton and Little v. Barreme, manifest defective social engineering-to use Roscoe Pound’s term-hardly creditable to an enlightened community.”[81]
“Nothing seem more clear than that this immunity of the King from
the jurisdiction of the King’s courts was purely personal. How it came to be
applied in the
“Since many states have not yet granted such consent and since those that have, have so qualified it as to exclude practically all cases of liability for tort, it is proper to show that the reasons which once may have been deemed to justify the public policy of immunity from suit and responsibility do not in fact to-day prevail, and that public policy now requires that the State shall voluntarily submit to the jurisdiction of judicial tribunals to answer for torts committed by its officers against the person or property of its citizens.”[85]
“But an even greater injustice is done by reason of the maxim that the doctrine of respondeat superior has no application the King or Crown - or, with us, the State - which in theory can neither do nor authorize a wrong, and that even a superior officer is not liable for the torts of his subordinates, unless he expressly commands the tort - not a common case.”[86]
“This defective social engineering can only be rightly improved by placing the risk of honest official mistakes upon the community, where it properly belongs.”[87]
“Inasmuch as the state can act only through officers, it would always be possible to implead the state in the guise of its officer were the courts not careful to maintain proper criteria between personal acts and acts in the name of the state. This the courts have attempted to do, but a survey of their effort in this direction is hardly convincing of the existence or soundness of the alleged principles they assume to adopt.”[88]
“We have seen that this separation, involving also a denial of the principle of respondeat superior in official “governmental” relations, and other manifestation of solicitude for superior officers, has resulted practically in limiting the recourse of the injured citizen, even where he could sue, to an action against subordinate and usually irresponsible minor officials, which in practical effect was not far removed from a denial of relief of any kind.”[89]
“It may be well to recall here that the same argument of ultra vires might, if admitted as applicable to the relation between the state and its officer committing an illegal act, serve automatically to absolve the state from all liability, for it is doubtless true that the state, even admitting the power, never, or very rarely, authorizes a tort.[90] Fortunately, this plea of ultra vires has not been admitted in this relation, any more than it has in the case of corporations, including municipal corporations, generally, yet it has troubled the theory of state responsibility not a little. Its effect is practically attained, of course, through the antiquated doctrine of State immunity and infallibility and the inapplicability of the State of the usual rules of agency, leaving the officer, and then only the most subordinate as a rule, to bear personally the consequences of his mistake, negligence or misfeasance in the performance of official duties, and leaving to the individual merely this often doubtfully remedy.”[91]
“The practical requirement, thus enforced, that the subordinate officer assume the risk of the constitutionality, legality and correctness of the orders of his superior officers alone demonstrates the injustice and inequity of the existing rule as to all parties concerned - the subordinate officer, the victim of the injury, and the State or public which employs all officers. It is flagrantly defective social engineering.”[92]
“The Supreme Court no longer seems to regard as important the point once raised that if the act sought to be enjoined is not the state’s act, then the Fourteenth Amendment and the due process clause is not involved, whereas if it is the state’s act, then the Eleventh Amendment interposes to deny jurisdiction.”[93]
“It must be confessed that it is almost impossible to discover any guiding principle for determining when a suit against an officer is a suit against the State and most of those who have dealt with the subject have contented themselves with an enumeration of the cases, without for the most part any serious effort to educe an underlying principle or criticize inconsistencies.”[94]
“This decision, rendered by Justice Holmes, the most vigorous defender of the sanctity of the doctrine of State immunity, would seem to indicate the vulnerability of the doctrine in the eyes of its most convinced proponent; for it seems hardly reasonable that the mere intermediation of a corporation organized and owned by the State for the performance of a particular function of the Government should alter so settled a principle as State immunity, a principle which is fully enforced when the enterprise is conducted by a State official or commissioner - unless indeed the conclusion is drawn, as we think it must be, that the doctrine rests not on rational and substantial, but on antiquated and technical grounds and that the courts eagerly seek artificial methods of escape from its implications.”[95]
“It often becomes necessary to determine whether the tort-feasor is an agency or sub-division of the State sharing its immunities, or an independent contractor with the State. As may be imagined the decisions are not harmonious, furnishing additional evidence, if that were needed, that the whole subject, enmeshed in artificialities and unsound distinctions, requires re-examination in the light of principle and reason.”[96]
“Thus a denial or questioning of the owner’s right to the property, by the assertion by the Government of an adverse or constitutional claim or the denial of an intent to pay will defeat recovery, for the taking is then tortuous. The more flagrant and unjustifiable the Government’s act, the less becomes its liability, hardly a commendable principle of law.”[97]
“The reluctance of the Supreme Court to widen the relief of the individual injured and compelling him rather than the public at large to bear the risk of defective public service, is due to the individualistic conceptions which lie at the foundation of the American theory of state immunity from suit and responsibility and to the erroneous belief that by being held to discharge obligations, the public service is hampered.”[98]
“If it is just and sound that the Government should assume responsibility to the public for the torts of its agents, like other corporations, then the principle should be acknowledged without limitation of liability and judicial relief should be afforded.”[99]
“Nor can the Government, he says, be guilty of a fault or “tort”
since it itself makes the law and is therefore not bound by it, a proposition
to which Justice McKenna expressed vigorous dissent. The validity of this
theory of Justice Holmes, which he founds upon the authority of Bodin, Hobbes
and
“Indeed, if Justice Holmes’ theory is correct, even voluntary submission to suit would not enable the court to impose damages on the Government, for there never was a liability and none could, it would seem, be created, by merely waiving the immunity from suit. The fact is, we venture to believe, that the theory is unsound, being dominated by a slavish worship of an antiquated conception of absolutism and finding in the absence of a “tort”-a term of private and not public law-an absence of injury or operative fact of which the courts may properly take account when they can obtain jurisdiction.”[101]
“Indeed, it is believed that with the deflation of he conception of sovereignty and the realization that all political group organizations, from the smallest to the largest, are merely means adopted by the people to enable them to perform certain public services, that there is no sound reason either for differentiating their responsibility according to size or form or organization or to grant them immunity for the torts of their agents and employees.”[102]
“Judge Foote in the case of Lloyd v. new York, commonly regarded as a leading case, after announcing the time-honored formula, came to the discouraging conclusion that there was no guiding rule for the courts and that “all that can be done with safety is to determine each case as it arises.” In the light of such confession of lack of principle, it is not surprising that judicial utterances are irreconcilable and that the effort to determine the law governing the liability of municipal corporations in tort resolves itself into a study of local arbitrariness in the different jurisdictions, thereby justifying a challenge against all the formulas, phrases and terminology under the control of which the courts profess to be acting. If consistency in the law is necessary to give it prestige, as Judge Learned Hand has recently remarked, then this branch of the law is greatly in need of reform.”[103]
“Until recently, when a tendency to minimize the distinction as one of degree only, has been noticeable, it served to determine in several countries the principle of the responsibility of the state for the torts of its officers, not being applied to cities alone, as with us, but more logically to all political communities, from the largest, the state, to the smallest, the village, acting as repositories of the public power as agents of the people.”[104]
“Just why public functions cannot be performed properly unless the city is immune from responsibility for the torts of its officers is not apparent. On the contrary, it might be more convincingly argued that greater efficiency and justice would be attained by accompanying power with responsibility, and if this does not induce greater respect for law, it would at least respond more satisfactorily to a public sense of justice if losses inflicted on the individual by the wrongful acts of agents of the community are spread over the community as a whole rather than allowed to rest upon the unfortunate victim alone. The reason assigned by Ashhurst, J. in Russell v. Men of Devon for holding a county not liable for injuries resulting from a defective bridge, namely, that “it is better that an individual should sustain an injury than that the public should suffer an inconvenience,” is to-day no more palpably immoral than the frequently uttered explanation that public moneys raised by taxation for public uses cannot lawfully be applied to the payment of damages caused by the wrongful acts of public officers.”[105]
“Nor can we give serious consideration to the attempt of certain courts to explain municipal exemption from responsibility for the torts of officers in the performance of “governmental” acts or its so-called police powers on the ground that illegal or unlawful acts of officers in such cases are ultra vires and therefore incapable of rendering the municipality liable. This discredited idea once had considerable vogue on the continent in freeing all corporations from responsibility for the torts of their agents, but it has long been discarded in most civilized jurisdictions and its spasmodic revival can only be attributed to insufficient analysis or carelessness.”[106]
“But our difficulty has been to overcome the belief that the relation of agency or respondeat superior could not exist between the group and the officer when he was performing a so-called governmental or public function. If this difficulty has been to a considerable degree overcome, at least in principle and logically, when the group is the city or incorporated town, there should not be much difficulty in securing legislative permission to impose liability and thus satisfy the demands of justice, when the group represented is the county or the state. The historical anachronism which enable the community, when organized as a county or state, to escape subjection to the customary rules of law, should be repealed by a frank recognition of its unsoundness and injustice under present conditions.”[107]
18. Thomas Hobbes The Leviathan Part II Chap 26, 2:
Defender of Sovereign Immunity for the Monarchist and Statest:
“2. The Soveraign of a Common-wealth, be it an Assembly, or one Man, is not Subject to the Civill Laws. For having power to [138] make, and repeale Lawes, he may when he pleaseth, free himselfe from that subjection, by repealing those Lawes that trouble him, and making of new; and consequently he was free before. For he is free, that can be free when he will: Nor, is it possible for any person to be bound by himselfe; because he that can bind, can release; and therefore he that is bound to himselfe onely, is not bound.”[108]
“3. When long Use obtaineth the authority of a Law, it is not the Length of Time that maketh the Authority, but the Will of the Soveraign signified by his silence, (for Silence is sometimes an argument of Consent;) and it is not longer Law, when the Soveraign shall have a question of Right grounded, not upon his present Will, but upon the Lawes formely made; the Length of Time shal bring no prejudice to his Right; but the question shal be judged by Equity. For many unjust Actions, and unjust Sentences, go uncontrolled a longer time, than any man can remember. And our Lawyers account no Customes Law, but such as are reasonable, and that evill Customes are to be abolished: But the Judgement of what is reasonable, and of what is to be abolished, belongeth to him that maketh the Law, which is the Soveraign Assembly, or Monarch.”[109]
19. Rev. Samuel Rutherford - Lex Rex or The Law and the Prince:
Rev. Samuel Rutherford Professor of Divinity in the University of
St. Andrews Lex Rex or The Law and the Prince; a dispute for The Just Prerogative of King and People: Containing THE REASONS AND CAUSES OF THE
MOST NECESSARY DEFENSIVE WARS OF THE KINGDOM OF SCOTLAND. And of Their
EXPEDITION FOR THE AID AND HELP OF THEIR DEAR BRETHREN OF ENGLAND; In which
their innocency is asserted, and a full answer is given to a Seditious
Pamphlet, Entitled, “SACRO-SANCTA REGUM JAJESTAS,”or The Sacred and Royal
Prerogative of Christian Kings; under the name of I. A., but penned by John
Maxwell, The Excommunicate Popish Prelate; with a scriptural confutation of the
Ruinous Ground of W. Barclay, H. Grotius, H. Arnisaus, Ant. De Domi. Popish
Bishop of Spalato, and of other late Anti-Magistratical Royalists, as the
author of Ossorianum, Dr Ferne, E. Symmons, THE DOCTORS OF ABERDEEN, ETC. IN
FORTY-FOUR QUESTIONS. (
“The first I conceive is clear, 1st, Because all living creatures have radically in them a power of self-preservation, to defend themselves from violence, — as we see lions have paws, some beasts have horns, some claws, — men being reasonable creatures, united in society, must have power in a more reasonable and honourable way to put this power of warding off violence in the hands of one or more rulers, to defend themselves by magistrates. 2nd, If all men be born, as concerning civil power, alike, — for no man cometh out of the womb with a diadem on his head or a sceptre in his hand, and yet men united in a society may give crown and sceptre to this man and not to that man, — then this power was in this united society, but it was not in them formally, for they should then all have been one king, and so both above and superior, and below and inferior to themselves, which we cannot say; therefore this power must have been virtually in them, because neither man nor community of men can give that which they neither have formally nor virtually in them. 3rd, Royalists cannot deny but cities have power to create a higher ruler, for royal power is but the united and superlative power of inferior judges in one greater judge whom they call a king.
Conclus. The power of creating a man a king is from the people.”[110]
“I think royalists cannot deny but a people ruled by aristocratic magistrates may elect a king, and a king so elected is formally made a lawful king by the people's election; for of six willing and gifted to reign, what maketh one a king and not the other five? Certainly by God's disposing the people to choose this man, and not another man. It cannot be said but God giveth the kingly power immediately; and by him kings reign, that is true. The office is immediately from God, but the question now is, What is that which formally applieth the office and royal power to this person rather than to the other five as meet? Nothing can here be dreamed of but God's inclining the hearts of the states to choose this man and not that man.”[111]
“2d, When he hath proved that God is the immediate author of sovereignty, what then? Shall it follow that the sovereign in concreto may not be resisted, and that he is above all law, and that there is no armour against his violence but prayers and tears? Because God is the immediate author of the pastor and of the apostle's office, does it therefore follow that it is unlawful to resist a pastor though he turn robber? If so, then the pastor is above all the king's laws. This is the Jesuit and all made, and there is no armour against the robbing prelate but prayer and tears.
“2. He saith in his title, that "the king is no creature of the people's making." If he mean the king in the abstract, that is, the royal dignity, whom speaketh he against? Not against us, but against his own father, Bellarmine, who saith, that "sovereignty hath no warrant by any divine law." If he mean that the man who is king is not created and elected king by the people, he contradicteth himself and all the court doctors.”[112]
“P. Prelate. — We begin with the law, in. which, as God by himself prescribed the essentials, substantiate, and ceremonies of his piety and worship, gave order for piety and justice; Deut. xvii. 14, 15, the king is here originally and immediately from God, and independent from all others. "Set over them" — them is collective, that is, all and every one. Scripture knoweth not this state principle, — Rex est singulis major, universis minor. The person is expressed in concreto, "Whom the Lord thy God shall choose." This peremptory precept dischargeth the people, all and every one, diffusively, representatively, or in any imaginable capacity to attempt the appointing of a king, but to leave it entirely and totally to God Almighty.
“Ans. — Begin with the law, but end not with traditions. If God by himself prescribed the essentials of piety and worship, the other part of your distinction is, that God, not by himself, but by his prelates, appointed the whole Romish rites, as accidentals of piety. This is the Jesuits' doctrine. This place is so far from proving the king to be independent, and that it totally is God's to appoint a king, that it expressly giveth the people power to appoint a king; for the setting of a king over themselves, this one and not that one, makes the people to appoint the king, and the king to be less and dependent on the people, seeing God intendeth the king for the people's good, and not the people for the king's good. This text shameth the Prelate, who also confessed, (p. 22,) that remotely and improperly, succession, election, and conquest maketh the king, and so it is lawful for men remotely and improperly to invade God's chair.”[113]
“P. Prelate. — There is need of grace to obey the king, Psal. xviii. 43; cxliv. 2. It is God who subdueth the people under David. Rebellion against the king is rebellion against God. 1 Pet. ii. 17; Prov. xxiv. 12. Therefore kings have a near alliance with God.
“Ans. — 1. There is much grace in papists and prelates
then, who use to write and preach against grace. 2. Lorinus your brother Jesuit
will, with good warrant of the texts inter, that the king may make a conquest
of his own kingdoms of
“P. Prelate — 1. To whom can it be more proper to give the rule over men than to Him who is the only king truly and properly of the whole world? 2. God is the immediate author of all rule and power that is amongst all his creatures, above or below. 3. Man before the fall received dominion and empire over all the creatures below immediately, as Gen. i. 28; Gen. ix. 2; therefore we cannot deny that the most noble government (to wit monarchy) must be immediately from God, without any contract or compact of men.
“Ans. — 1. The first reason concludeth not what is in question; for God only giveth rule and power to one man over another; therefore he giveth it immediately. It followeth not. 2. It shall as well prove that God doth immediately constitute all judges, and therefore it shall be unlawful for a city to appoint a mayor, or a shire a justice of peace.”[115]
“The Prelate will have it Babylonish confusion, that we are divided in opinion. Jesuits (saith he) place all sovereignty in the community. Of the sectaries, some warrant any one subject to make away his king, and such a work is no less to be rewarded than when one killeth a wolf. Some say this power is in the whole community; some will have it in the collective body, not convened, by warrant or writ of sovereignty; but when necessity (which is often landed) of reforming state and church, calleth them together; some in the nobles and peers: some in the three estates assembled by the king's writ; some in the inferior judges.
“I answer, If the Prelate were not a Jesuit himself, he would not bid his brethren take the mote out of their eye; but there is nothing here said but what Barclaius said better before this plagiarius. To which I answer, We teach that any private man may kill a tyrant, void of all title; and that great Royalist saith so also. And if he have not the consent of the people, he is an usurper, for we know no external lawful calling that kings have now, or their family, to the crown, but only the call of the people. All other calls to us are now invisible and unknown; and God would not command us to obey kings, and leave us in the dark, that we shall not know who is the king.”[116]
“I am not now unseasonably, according to the Prelate's order, to dispute of the power of lawful defence against tyranny; but, I lay down this maxim of divinity: Tyranny being a work of Satan, is not from God, because sin, either habitual or actual, is not from God: the power that is, must be from God; the magistrate, as magistrate, is good in nature of office, and the intrinsic end of his office, (Rom. xiii. 4) for he is the minister of God for thy good; and, therefore, a power ethical, politic, or moral, to oppress, is not from God, and is not a power, but a licentious deviation of a power; and is no more from God, but from sinful nature and the old serpent, than a license to sin.”[117]
“The inferior creatures in nature give no power to the superior, and therefore they cannot give in such a proportion power. The denial of the positive degree is a denial of the comparative and superlative, and so they cannot resume any power; but the designing of these men or those men to be kings or rulers is a rational, voluntary action, not an action of nature, — such as is God's act of creating an angel a nobler creature than man, and the creating of man a more excellent creature than a beast; and, for this cause, the argument is vain and foolish; for inferior creatures are inferior to the more noble and superior by nature, not by voluntary designation, or, as royalists say, by naked approbation, which yet must be an arbitrary and voluntary action.”[118]
“5. But simply and absolutely the people is above, and more excellent, than the king, and the king in dignity inferior to the people; and that upon these reasons: —
“
“
“
“But such a consideration (comparison to Christ) cannot befall any mortal king; because, consider the king materially as a mortal man, he must be inferior to the whole church, for he is but one, and so of less worth than the whole church; as the thumb, though the strongest of the fingers, yet it is inferior to the hand, and far more to the whole body, as any part is inferior to the whole. Consider the king reduplicative and formally as king, and by the official relation he hath, he is no more then but a royal servant, an official mean tending, ex officio, to this end, to preserve the people, to rule and govern them; and a gift of God, given by virtue of his office, to rule the people of God, and so any way inferior to the people.”[120]
“
“Those who limit power, can take away so many degrees of royal power; and those who can take away power, can give power; and it is inconceiveable to say that people can put restraint upon a power immediately coming from God. * * * But royalists consent that the people may choose a king upon such conditions to reign, as he hath royal power of ten degrees, whereas his ancestor had by birth a power of fourteen decrees.”[122]
“4. If the people by other governors, as by heads of families and other choice men, govern themselves and produce these same formal effects of peace, justice, religion, on themselves, which the king doth produce, then is there a power of the same kind, and as excellent as the royal power, in the people; and there is no reason but this power should be held to come immediately from God, as the royal power; for it is every way of the same nature and kind, as I shall prove. Kings and judges differ not in nature and specie, but it is experienced that people do, by aristocratical guides, govern themselves, &c.; so then, if God immediately infuse royalty when the people chooseth a king, without any action of the people, then must God immediately infuse a beam of governing on a provost and bailie, when the people choose such, and that without any action of the people, because all powers are, in abstracto, from God.”[123]
20. The Citizens cannot transfer their Sovereignty to the State:
“Ans. 1. — It is false that the people doth, or can by the law of nature, resign their whole liberty in the hand of a king. 1. They cannot resign to others that which they have not in themselves, Nemo potest dare quod non habet; but the people hath not an absolute power in themselves to destroy themselves, or to exercise those tyrannous acts spoken of, 1 Sam. viii. 11-15, &c.; for neither God nor nature's law hath given any such power. * * * but the people doth not make themselves slaves when they constitute a king over themselves; because God, giving to a people a king, the best and most excellent governor on earth, giveth a blessing and special favour, (Isa. i. 26; Hos. i. 11; Isa. iii. 6, 7; Psal. lxxix. 70-72;) but to lay upon his people the state of slavery, in which they renounce their whole liberty, is a curse of God. * * * If the servant give his liberty to his master, therefore he had that liberty in him, and in that act, liberty must be in a more excellent way in the servant, as in the fountain, than it is in the master; and so this liberty must be purer in the people than in the king; and therefore, in that both the servant is above the master, and the people worthier than the king. * * * for the fountain-power remaineth most eminently in the people, 1. Because they give it to the king, ad modum recipientis, and with limitations; therefore it is unlimited in the people, and bounded and limited in the king, and so less in the king than in the people. * * * But the most eminent and fountain-power of royalty remaineth in the people as in an immortal spring} which they communicate by succession to this or that mortal man, in the manner and measure that they think good. Ulpian and Bartolus, cited by our Prelate out of Barclaius, are only to be understood of the derived, secondary, and borrowed power of executing laws, and not of the fountain-power, which the people cannot give away, no more than they can give away their rational nature; for it is a power natural to conserve themselves, essentially adhering to every created being.”[124]
“Ans. — I take the answer thus: Those who are mere means, and only means referred to the end, they are inferior to the end; but the king, as king, hath all his official and relative goodness in the world, as relative to the end. All that you can imagine to be in a king, as a king, is all relative to the safety and good of the people, (Rom. xiii. 4,) "He is a minister for thy good." He should not, as king, make himself, or his own gain and honour, his end.”[125]
“But when he abuseth his power to the destruction of his subjects, it is lawful to throw a sword out of a madman's hand, though it be his own proper sword, and though he have due right to it, and a just power to use it for good; for all fiduciary power abused may be repealed. And if the knights and burgesses of the House of Commons abuse their fiduciary power to the destruction of these shires and corporations who put the trust on them, the observator did never say that parliamentary power was so entire and irrevocably in them, as that the people may not resist them, annul their commissions and rescind their acts, and denude them of fiduciary power, even as the king may be denuded of that same power by the three estates; for particular corporations are no more to be denuded of that fountain-power of making commissioners, and of the self-preservation, than the three estates are.”[126]
21. Sovereignty is in the Citizen not the King or State:
“7. Sovereignty is not in the community, (saith the P. Prelate). Truly it neither is, nor can be, more than ten, or a thousand, or a thousand thousands, or a whole kingdom, can be one man; for sovereignty is the abstract, the sovereign is the concrete. Many cannot be one king or one sovereign: a sovereign must be essentially one; and a multitude cannot be one. But what then? May not the sovereign power be eminently, fontaliter, originally and radically in the people? I think it may, and must be.”[127]
“2. The power of a part and the power of the-whole is not alike. Royalty never advanceth the king above the place of a member; and lawyers say, the king is above the subjects, in sensu diviso, in a divisive sense, he is above this or that subject; but he is inferior to all the subjects collectively taken, because he is for the whole kingdom, as a mean for the end.
“Obj. — If this be a good reason, that he is a mean for the whole kingdom as for the end; that he is therefore inferior to the whole kingdom, then is he also inferior to any one subject; for he is a mean for the safety of every subject, as for the whole kingdom.
“Ans. — Every mean is inferior to its complete, adequate, and whole end; and such an end is the whole kingdom in relation to the king; but every mean is not always inferior to its incomplete, inadequate, and partial end. This or that subject is not adequate, but the inadequate and incomplete end in relation to the king.”[128]
22. Law is Sovereign over All:
“We may consider the question of the law's supremacy over the king, either in the supremacy of constitution of the king, or of direction, or of limitation, or of co-action and punishing. Those who maintain this, "The king is not subject to the law," if their meaning be, "The king as king is not subject to the law's direction," they say nothing; for the king, as the king, is a living law; then they say, "The law is not subject to the law's direction:" a very improper speech; or, the king, as king, is not subject to the co-action of the law: that is true; for he who is a living law, as such, cannot punish himself, as the law saith.
“Assert. 1. — The law hath a supremacy of constitution above the king: —
“1. Because the king by nature is not king, as is proved; therefore, he must be king by a politic constitution and law; and so the law, in that consideration, is above the king, because it is from a civil law that there is a king rather than any other kind of governor. 2. It is by law, that amongst many hundred men, this man is king, not that man; and because, by the which a thing is constituted, by the same thing it is, or may be dissolved; therefore, 3. As a community, finding such and such qualifications as the law requireth to be in a king, in this man, not in that man, — therefore upon law-ground they make him a king, and, upon law-grounds and just demerit, they may unmake him again; for what men voluntary do upon condition, the condition being removed, they may undo again.
“Assert. 2. — It is denied by none but the king is under the directive power of the law, though many liberate the king from the co-active power of a civil law. But I see not what direction a civil law can give to the king if he be above all obedience, or disobedience, to a law, seeing all law-direction is in ordine ad obedientiam, in order to obey, except thus far, that the light that is in the civil law is a moral or natural guide to conduct a king in his walking; but this is the morality of the law which enlighteneth and informeth, not any obligation that aweth the king; and so the king is under God's and nature's law. This is nothing to the purpose.”[129]
“Assert. 5. — The king cannot but be subject to the co-active power of fundamental laws. Because, 1. This is a fundamental law that the free estates lay upon the king, that all the power that they give to the king, as king, is for the good and safety of the people; and so what he doth to the hurt of his subjects, he doth it not as king.”[130]
“In matters of goods, the king may be both judge and punisher of himself, as our law provideth that any subject may plead his own heritage from the king before the inferior judges, and if the king be a violent possessor, and in mala fide for many years, by law he is obliged, upon a decree of the lords, to execute the sentence against himself, ex officio, and to restore the lands, and repay the damage to the just owner; and this the king is to do against himself, ex officio.”[131]
“Assert. 7. — If a king turn a parricide, a lion, and a waster and destroyer of the people, as a man he is subject to the co-active power of the laws of the land. If any law should hinder that a tyrant should not be punished by law, it must be because he hath not a superior but God, for royalists build all upon this; but this ground is false: —
“
“
“To these, and the like, hear what the excommunicated Prelate hath to say, (c. 15, p. 146, 147,) "They say (he meaneth the Jesuits) every society of men is a perfect republic, and so must have within itself a power to preserve itself from ruin, and by that to punish a tyrant." He answereth, "A society without a head, is a disorderly rout, not a politic body; and so cannot have this power.”[134]
“4. They are as orderly a body politic, to unmake a tyrannous
commander, as they were to make a just governor. The Prelate saith, "It is
alike to conceive a politic body without a governor, as to conceive the natural
body without a head." He meaneth, none of them can be conceivable. I am
not of his mind. When Saul was dead, Israel was a perfect politic body; and the
Prelate, if he be not very obtuse in his head, (as this hungry piece, stolen
from others, showeth him to be,) may conceive a visible political society
performing a political action, (2 Sam. v. 1-3,) making David king at a visible
and conceivable place, at Hebron, and making a covenant with him. And that they
wanted not all governors, is nothing to make them chimeras inconceivable. For
when so many families, before Nimrod, were governed only by fathers of
families, and they agreed to make either a king, or other governors, a head, or
heads, over themselves, though the several families had government, yet these
associated families had no government; and yet so conceivable a politic body,
as if Maxwell would have appeared amongst them, and called them a disorderly
rout, or an unconceivable chimera, they should have made the Prelate know that
chimeras can knock down prelates. Neither is a king the life of a politic body,
as the soul is of the natural body. The body createth not the soul; but
“The community is the remote and last subject, the representative body the nearest subject, the nobles a partial subject; the judges, as judges sent by the king, are so in the game, that when an arbitrary prince at his pleasure setteth them up, and at command that they judge for men, and not for the Lord, and accordingly obey, they are by this power to be punished, and others put in their place.”[136]
“P. Prelate (p. 147, 148). — The subject of this superintending power must be secured from error in judgment and practice, and the community and states then should be infallible.
“Ans. — The consequence is nought. No more than the king, the absolute independent, is infallible. It is sure the people are in less hazard of tyranny and self-destruction than the king is to subvert laws and make himself absolute; and for that cause there must be a superintendent power above the king, and God Almighty also must be above all.”[137]
“P. Prelate. — The parliament may err, then God hath left the state remediless, except the king remedy it.
“Ans. — There is no consequence here, except the king be impeccable. Posterior parliaments may correct the former. A state is not remediless, because God's remedies, in sinful men's hands, may miscarry. But the question is now, Whether God hath given power to one man to destroy men, subvert laws and religion, without any power above him to coerce, restrain, or punish?”[138]
“P. Prelate. — Why might not the people of
“1. And kings to do injustice to their subjects, because by this the superior cannot sin against the inferior, forasmuch as kings can sin against none but those who have power to judge and punish them; but God only, and no inferiors, and no subjects, have power to punish the kings; therefore kings can sin against none of their subjects; and where there is no sin, how can there be a law? Neither major or minor can be denied by royalists.
“2. We acknowledge tyranny must only unking a prince. The Prelate denieth it, but he is a green statist. Barclay, Grotius, Winzetus, as I have proved, granteth it.
“3. He will excuse Nero, as of infirmity, wishing all
“4. But let them be Neroes, and mad, and worse, there is no coercing of them, but all must give their necks to the sword, if the poor Prelate be heard; and yet kings cannot be so mad as to destroy their subjects. Mary of England was that mad. The Romish princes who have given (Rev. xvii. 13) their power and strength to the beast, and do make war with the Lamb; and kings inspired with the spirit of the beast, and, drunk with the wine of the cup of Babel's fornications, are so mad; and the ten emperors are so mad, who wasted their faithlulest subjects.”[140]
“Mr Bishop, what better is your affirmanti incumbit, &c., than mine? for you are the affirmer. 1. I can prove a power in the king, limited only to feed, govern, and save the people; and you affirm that God hath given to the king, not only a power official and royal to save, but also to destroy and cut off, so as no man may say, Why doest thou this?”[141]
“
“1. Moses, who wrought miracles destructive to Pharaoh, might pray for vengeance against Pharaoh, God having revealed to Moses that Pharaoh was a reprobate; but may ministers and nobles pray so against king Charles? God forbid.
“2. Pharaoh had not his crown from
“3. Pharaoh had not sworn to defend Israel, nor became he their king upon condition he should maintain and profess the religion of the God of Israel; therefore Israel could not, as free estates, challenge him in their supreme court of parliament of breach of oath; and upon no terms could they unking Pharaoh: he held not his crown of them.
“4. Pharaoh was never circumcised, nor within the covenant of the God of Israel in profession.
“5.
“He hath written a pamphlet of the inconsistency of monarchy and presbyterian government, consisting of lies, invented calumnies of his church, in which he was baptized. But the truth is, all his arguments prove the inconsistency of monarchs and parliaments, and transform any king into a most absolute tyrant; for which treason he deserveth to suffer as a traitor.
23.
Power of the Citizens in
“P. Prelate (q. 1, c. 1). The puritan saith that all power civil is radically and originally seated in the community; he here joineth hands with the Jesuit.
”Ans. — In six pages he repeateth the same things, 1. Is this such an heresy, that a colony
cast into
“P. Prelate. — They hold sovereign power is primarily and naturally in the multitude, from it derived to the king, immediately from God. The reason of which order is, because we cannot reap the fruits of government unless by compact we submit to some possible and accidental inconveniences.
“Ans. 1. — Who saith so the P. Prelate cannot name, — That sovereign power is primarily and naturally in the multitude. Virtually (it may be) sovereignty is in the multitude, but primarily and naturally, as heat is in the fire, light in the sun, I think the P. Prelate dreamed it; no man said it but himself; for what attribute is naturally in a subject, I conceive may directly and naturally be predicated thereof. Now the P. Prelate hath taught as this very natural predication. "Our dreadful and sovereign lord, the multitude, commandeth this and that."
“2. This is no more reason for a monarchy than for a democracy, for we can reap the fruits of no government except we submit to it.
24. On the Accidental Inconveniences the Citizen should Suffer:
“3. We must submit in monarchy (saith he) to some possible and accidental inconveniences. Here be soft words, but is subversion of religion, laws, and liberties of church and state. Introducing of popery, Arminianism, of idolatry, altar-worship, the mass, (proved by a learned treatise, "the Canterburian self-conviction," printed 1641, third ed., never answered, couched under the name of inconveniency,) the pardoning of the innocent blood of hundreds of thousand protestants in Ireland, the killing of many thousand nobles, barons, commons, by the hands of papists in arms against the law of the land, the making of England a field of blood, the obtruding of an idolatrous service-book, with armies of men, by sea and land, to block up the kingdom of Scotland, are all these inconveniences only?
“4. Are they only possible and accidental? But make a monarch
absolute, as the P. Prelate doth, and tyranny is as necessary and as much
intended by a sinful man, inclined to make a god of himself, as it is natural
to men to sin, when they are tempted, and to be drunken and giddy with honour
and greatness. Witness the kings of
“P. Prelate. — They infer, 1. They cannot, without violation of a divine ordinance and breach of faith, resume the authority they have placed in the king. 2. It were high sin to rob authority of its essentials. 3. This ordinance is not (illegible Latin) but (illegible Latin) and hath urgent reasons.
“Ans. 1. — These nameless authors cannot infer that an oath is broken which is made conditionally; all authority given by the people to the king is conditional, that he use it for the safety of the people; if it be used for their destruction, they break no faith to resume it, for they never made faith to give up their power to the king upon such terms, and so they cannot be said to resume what they never gave.”[145]
“3. This ordinance of the people, giving lawful power to a king for the governing of the people in peace and godliness, is God's good pleasure, and hath just reasons and causes. But that the people make over a power to one man, to act all the inconveniences above named, I mean the bloody and destructive inconveniences, hath nothing of God or reason in it.”[146]
“P. Prelate. — The reasons of this opinion are: — 1. If power sovereign were not in one, he could not have strength enough to act all necessary parts and acts of government. 2. Nor to prevent divisions which attend multitudes, or many endowed with equal power; and the authors say, they must part with their native right entirely for a greater good, and to prevent greater evils. 3. To resume any part of this power, of which the people have totally divested themselves, or to limit it, is to disable sovereignty from government, loose the sinews of all society, &c.
Ans. 1. — I know none for this opinion, but the P. Prelate himself. The first reason may be made rhyme, but never reason: for though there be not absolute power to good and ill, there may be strength of limited power in abundance in the king, and sufficient for all acts of just government, and the adequate end of government, which is, salus populi, the safety of the people. But the royalist will have strength to be a tyrant, and act all the tyrannical and bloody inconveniences of which we spake, an essential part of the power of a king; as if weakness were essential to strength, and a king could not be powerful as a king, to do good, and save and protect, except he had power also as a tyrant to do evil, and to destroy and waste his people. This power is weakness, and no part of the image of the greatness of the King of kings, whom a king representeth.
“2. The second reason condemneth democracy and aristocracy as unlawful, and maketh monarchy the only physic to cure these; as if there were no government an ordinance of God save only absolute monarchy, which indeed is no ordinance of God at all, but contrary to the nature of a lawful king. (Deut. xvii. 3,)
“3. That people must part with their native right totally to make an absolute monarch, is as. if the whole members of the body would part with their whole nutritive power, to cause the milt to swell, which would be the destruction of the body.
“4. The people cannot divest themselves of power of defensive wars more than they can part with nature, and put themselves in a condition inferior to a slave, who, if his master, who hath power to sell him, invade him unjustly, to take away his life, may oppose violence to unjust violence. And the other consequences are null.”[147]
25. Alexander Hamilton The Federalists Papers No. 81.
His so-called support for sovereignty of state over the citizen.
“Though it may rather be a digression from the immediate subject of this paper, I shall take occasion to mention here a supposition which has excited some alarm upon very mistaken grounds. It has been suggested that an assignment of the public securities of one State to the citizens of another, would enable them to prosecute that State in the federal courts for the amount of those securities; a suggestion which the following considerations prove to be without foundation.
“It is
inherent in the nature of sovereignty not to be amenable to the suit of an
individual without its consent. This is the general sense, and the
general practice of mankind; and the exemption, as one of the attributes of
sovereignty, is now enjoyed by the government of every State in the
26. Alexander Hamilton The Federalists Papers No. 31.
His point that when clear principle is rejected it is upon something other than reason:
“IN DISQUISITIONS of every kind, there are certain primary truths, or first principles, upon which all subsequent reasonings must depend. These contain an internal evidence which, antecedent to all reflection or combination, commands the assent of the mind. Where it produces not this effect, it must proceed either from some defect or disorder in the organs of perception, or from the influence of some strong interest, or passion, or prejudice.”[149]
27. Alexander Hamilton The Federalists Papers No. 32.
His reference to taxation above in letter 81 is to letter 32 only herein quoted:
“ALTHOUGH I am of opinion that there would be no real danger of the consequences which seem to be apprehended to the State governments from a power in the Union to control them in the levies of money, because I am persuaded that the sense of the people, the extreme hazard of provoking the resentments of the State governments, and a conviction of the utility and necessity of local administrations for local purposes, would be a complete barrier against the oppressive use of such a power; yet I am willing here to allow, in its full extent, the justness of the reasoning which requires that the individual States should possess an independent and uncontrollable authority to raise their own revenues for the supply of their own wants. And making this concession, I affirm that (with the sole exception of duties on imports and exports) they would, under the plan of the convention, retain that authority in the most absolute and unqualified sense; and that an attempt on the part of the national government to abridge them in the exercise of it, would be a violent assumption of power, unwarranted by any article or clause of its Constitution.
An entire consolidation of the States into one
complete national sovereignty would imply an entire subordination of the parts;
and whatever powers might remain in them, would be altogether dependent on the
general will. But as the plan of the convention aims only at a partial union or
consolidation, the State governments would clearly retain all the rights of
sovereignty which they before had, and which were not, by that act, exclusively
delegated to the
“It is not, however a mere possibility of inconvenience in the exercise of powers, but an immediate constitutional repugnancy that can by implication alienate and extinguish a pre-existing right of sovereignty.”[151]
28. Alexander Hamilton The Federalists Papers No. 78:
His direct discussion of the Citizen in relation to his State in favor of Sovereignty of Citizen over State and Legislature and Courts:
“There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”[152]
“If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their will to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
“Nor does this conclusion by any means suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both; and that where the will of the legislature, declared in its statutes, stands in opposition to that of the people, declared in the Constitution, the judges ought to be governed by the latter rather than the former. They ought to regulate their decisions by the fundamental laws, rather than by those which are not fundamental.”[153]
“For I agree, that "there is no liberty, if the power of judging be not separated from the legislative and executive powers."2 And it proves, in the last place, that as liberty can have nothing to fear from the judiciary alone, but would have every thing to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security.
“The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.
“Some perplexity respecting the rights of the courts to pronounce legislative acts void, because contrary to the Constitution, has arisen from an imagination that the doctrine would imply a superiority of the judiciary to the legislative power. It is urged that the authority which can declare the acts of another void, must necessarily be superior to the one whose acts may be declared void. As this doctrine is of great importance in all the American constitutions, a brief discussion of the ground on which it rests cannot be unacceptable.”[154]
“But in regard to the interfering acts of a superior and subordinate authority, of an original and derivative power, the nature and reason of the thing indicate the converse of that rule as proper to be followed. They teach us that the prior act of a superior ought to be preferred to the subsequent act of an inferior and subordinate authority; and that accordingly, whenever a particular statute contravenes the Constitution, it will be the duty of the judicial tribunals to adhere to the latter and disregard the former.
“It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.
“If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.
“This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community. Though I trust the friends of the proposed Constitution will never concur with its enemies,3 in questioning that fundamental principle of republican government, which admits the right of the people to alter or abolish the established Constitution, whenever they find it inconsistent with their happiness, yet it is not to be inferred from this principle, that the representatives of the people, whenever a momentary inclination happens to lay hold of a majority of their constituents, incompatible with the provisions in the existing Constitution, would, on that account, be justifiable in a violation of those provisions; or that the courts would be under a greater obligation to connive at infractions in this shape, than when they had proceeded wholly from the cabals of the representative body. Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act. But it is easy to see, that it would require an uncommon portion of fortitude in the judges to do their duty as faithful guardians of the Constitution, where legislative invasions of it had been instigated by the major voice of the community.”[155]
29. Alexander Hamilton The Federalists Papers No. 84:
A direct discussion showing that the silence of the Constitution pertains to all the rights and Sovereignty of the Citizen over the State.
“It has been several times truly remarked that bills of rights
are, in their origin, stipulations between kings and their subjects,
abridgements of prerogative in favor of privilege, reservations of rights not
surrendered to the prince. Such was MAGNA CHARTA,
obtained by the barons, sword in hand, from King John. Such were the subsequent
confirmations of that charter by succeeding princes. Such was the Petition
of Right assented to by Charles I., in the beginning of his reign. Such,
also, was the Declaration of Right presented by the Lords and Commons to the
Prince of Orange in 1688, and afterwards thrown into the form of an act of
parliament called the Bill of Rights. It is evident, therefore, that, according
to their primitive signification, they have no application to constitutions
professedly founded upon the power of the people, and executed by their
immediate representatives and servants. Here, in strictness, the people
surrender nothing; and as they retain every thing they have no need of
particular reservations. "WE, THE PEOPLE of the
30. A short history of the Texas Tort Claims Act of 1967:
By R. Michael Northrup Sovereign Immunity: Why it’s Good to be King
In 1967, the House of Representatives passed H.B. 728, which waived governmental
immunity
completely. H.J. of
Health
& Mental Retardation v. Bossley, 968 S.W.2d 339, 341 (
tie vote in the Senate Committee on Jurisprudence. In 1969, bills were again introduced that
would waive immunity in most circumstances. One bill was passed, H.B. 117, which called for a
more limited waiver of immunity. Bossley, 968 S.W.2d at 342. However, Governor Preston
Smith vetoed it, explaining that he believed it was time to reconsider the doctrine of absolute
governmental immunity, but he was concerned about imposing such an onerous burden on the
taxpayer.
bill is the Texas Tort Claims Act. This bill waives the doctrine of sovereign immunity only
under
limited circumstances.
S.W.2d
680, 686 (
Since 1969, the Tort Claims Act has been amended three times: once to waive sovereign
immunity for property damage proximately caused by a state officer or employee arising from
the operation or use of a motor-driven vehicle or motor driven equipment; once to raise the
liability limits; and once to codify the Tort Claims Act into the Civil Practice and Remedies
Code. Petty, 848 S.W.2d at 687 (Cornyn, J., dissenting).
32. The Trial Court’s Cover Letter Accompanying the Order Mailed to the Parties.
33.
34.
35.
[1]
[2]
Stone v.
[3]
75 A.L.R. 1196 & Stone v.
[4]
Hernandez v.
[5]
Stone v.
[6]
Stone v.
[7]
State v. Sharp 21
[8]
Stone v.
[9]
[10]
Stone v.
[11]
Hargrove v. Town of
[12]
Kaulakis v. Boyd, 138 So.2d 505 (
[13]
Stone v.
[14] 115 N.W.2d 625.
[15]
Stone v.
[16]
Stone v.
[17]
Re: Larsen v.
[18]
Stone v.
[19]
Stone v.
[20] Muskopf v. Corning Hospital District 359 P.2d 457 @ 458 (1961)
[21] Muskopf v. Corning Hospital District 359 P.2d 457 @ 459 (1961)
[22] Muskopf v. Corning Hospital District 359 P.2d 457 @ 459 (1961)
[23] Muskopf v. Corning Hospital District 359 P.2d 457 @ 460 (1961)
[24] Muskopf v. Corning Hospital District 359 P.2d 457 @ 461 (1961)
[25] Muskopf v. Corning Hospital District 359 P.2d 457 @ 461 (1961)
[26]
Muskopf v. Corning Hospital District 359 P.2d 457 @ 462 (
[27]
Muskopf v. Corning Hospital District 359 P.2d 457 @ 463 (
[28] Quasi municipal corporations: Bodies politic and corporate, created for the sole purpose of performing one or more municipal functions. Public corporations organized for governmental purposes and having for most purposes the status and powers of municipal corporations (such as counties, townships, school districts, drainage districts, irrigation districts, etc.), but not corporations proper, such as cities and incorporated towns. Blacks Law Dictionary 6th.
[29]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 90 (
[30]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 91 (
[31]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 91 (
[32]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 91 (
[33]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 92 (
[34]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 93 (
[35]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 93 (
[36]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 94 (
[37]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 94 (
[38]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 95 (
[39] Municipal: In its broader sense, it means pertaining to the public or governmental affairs of a state or nation or of a people.
[40]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 95 (
[41]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 96 (
[42]
Molitor v. Kaneland Community Unit Dist. No. 302 163 N.E.2d. 89 @ 97 (
[43]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[44]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[45]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[46]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[47]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[48]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[49]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[50]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[51]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[52]
Dickson v. Strickland, Secretary of State, et al. (No. 4215) (Supreme Court of
[53]
9
[54]
Homer v. DeYoung, 1
[55]
The Governmental Immunity Doctrine in
[56]
[57]
The Governmental Immunity Doctrine in
[58]
[59]
Hosner v. DeYoung, 1
[60]
The Governmental Immunity Doctrine in
[61] For a concise demonstration of this proposition in the instance of the development of the doctrine of the manufacturer’s liability for defective products see E. Levi, An Introduction to Legal Reasoning 8-27 (1948); H. Berman & W. Greiner, The Nature and Functions of Law 400-72 (2d ed. 1966).
[62]
11
[63] *** five cases cited all from ’64-67 the last being 385 U.S. 822 (1967).
[64] Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by David T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) p. 583.
[65] See C. Fenwick, International Law 308 (3d ed. 1948). For additional discussion see Lauterpacht, The Problem of Jurisdictional Immunities of Foreign States, in 28 Brit. Y.B. Int’l L. 220-26 (1951); Fensterwald, Sovereign Immunity and Soviet State Trading, 63 Harv. L. Rev. 614, 616-20 (1950).
[66] Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by Daniel T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) p. 583-4.
[67]
11
[68] Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by Daniel T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) p. 585.
[69]
11
[70]
11
[71] Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by Daniel T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) p. 586.
[72] Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by Daniel T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) p. 587-8.
[73] See Cardozo, Sovereign immunity: The Plaintiff Deserves a Day in Court, 67 Harv. L. Rev. 608 (1954).
[74]
Treaty of Commerce, Friendship and Navigation with the
[75] Foreign Assistance Act of 1964, Pub. L. No. 88-633, Part III, ch. 1, § 301, 78 Stat. 1009.
[76] Villanova Law Review – The American Doctrine of Sovereign Immunity: An Historical Analysis by Daniel T. Murphy 1968 (Vill L Rev 13:583 Spring ’68) p. 603.
[77]
*** The rationale which the courts have employed in asserting their power to
abolish the immunity doctrine is that, since the courts first created the rule,
they can abolish it without legislative action. See, e.g., Stone v. Arizona
Highway Comm’n, supra at 393, 381 P.2d at 113; Muskopf v. Corning Hosp. Dist.,
supra at 218, 359 P.2d at 461, 11
[78] Duke Law Review – The Role of the Courts in Abolishing Governmental Immunity (Duke L R 1964:888) p. 889
[79]
(1868,
[80] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J: 1) p. 1-2.
[81] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J: 1) p. 2-3.
[82]
2 Goodnow, Comparitive Administrative Law
(1893) 156.
[83]
In Yick Wo v.
[84] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.4-5.
[85] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.6.
[86] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.8.
[87] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.8.
[88] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.13.
[89] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.16.
[90]
In Feather v.
[91] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.20.
[92] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.21.
[93] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.21.
[94] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.22.
[95] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.23-24.
[96] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.27-28.
[97] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.30-31.
[98] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.32.
[99] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.33.
[100] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.40.
[101] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.41.
[102] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.45.
[103] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.130.
[104] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.132.
[105] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.134.
[106] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.136.
[107] Yale Law Journal Government Liability in Tort Edwin M. Borchard (34 Yale L J:1) p.138.
[108] Thomas Hobbes Leviathan (Penguin Putman Inc. 375 Hudson Street, New York, N.Y. 10014, USA 1985, first published 1651) 313.
[109] Thomas Hobbes Leviathan (Penguin Putman Inc. 375 Hudson Street, New York, N.Y. 10014, USA 1985, first published 1651) 313.
[110] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 4, p.6.
[111] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 4, p.9.
[112] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 5, p.10.
[113] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 5, p.12-13.
[114] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 5, p.15.
[115] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 7, p.22.
[116] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 9, p.33.
[117] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 9, p.34.
[118] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 9, p.38.
[119] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.78.
[120] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.79.
[121] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.80.
[122] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.80.
[123] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.80.
[124] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.81-2.
[125] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.83.
[126] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.84.
[127] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.86.
[128] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 19, p.87.
[129] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.125-6.
[130] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.126.
[131] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.127.
[132] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.127-8.
[133] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.128.
[134] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.129.
[135] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.130.
[136] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.130.
[137] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.130.
[138] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.130-1.
[139] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.131.
[140] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.132.
[141] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.132.
[142] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 26, p.133.
[143] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 41, p.205.
[144] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 41, p.209.
[145] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 41, p.209-10.
[146] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 41, p.210.
[147] Rev. Samuel Rutherford Lex Rex (Crown Rights Book Company, P.O. Box 386 Dahlonega, Georgia 30533, 2004) Question 41, p.210.
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Alexander Hamilton The Federalists Papers
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Alexander Hamilton The Federalists Papers
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