a revolutionary eruption, the regular operation of constitutional law is disturbed. In the presence of revolution, law is impotent. It is, indeed, a great task of practical politics to bring back revolutionary movements as soon as possible into the regular channels of constitutional reform. There can be no right of revolution, unless exceptionally; it can only be justified by that necessity which compels a nation to save its existence or to secure its growth where the ways of reform are closed. The constitution is only the external organization of the people, and if, by means of it, the state itself is in danger of perishing, or if vital interests of the public weal are threatened, necessity knows no law." POLITICAL AND PERSONAL RESPONSIBILITY. 9. Generally speaking, the responsibility for political action is political only.. That is, officers of the government, in either of its branches, are not liable at the suit of private parties for the consequences of acts done by them in the course of their public functions and in matters involving the exercise of judgment or discretion. In order to the due administration of government, it is necessary that the officers who are charged with the various duties of making, interpreting, and administering the laws should enjoy a due measure of immunity from being called to account for their public acts at the instance of private parties. Misgovernment is to be remedied at the ballot box, not by suits at law. If the legislature attempts to violate or defy the constitution, it will be held in check by the judicial department. But for unwise or oppressive laws, not conflicting with the constitution or private rights, there is no redress save by the election of a new legislature. Courts cannot set aside a statute regularly passed, on the ground that it was procured by bribery, fraud, or corruption. And if individuals suffer detriment by reason of the laws enacted, they have no right of action against the members of the legislative body. "It certainly cannot be argued," says the court in Mississippi, "that the motives of the members of a legislative assembly, in voting for a particular law, can be inquired • Bluntschli, Theory of the State, 477. ! into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." And so, also, whenever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with all the immunities of government, and are exempt from all liability for their mistaken use, although they may be held responsible if shown to have acted corruptly. The judiciary are invested with a like privilege. Judges of inferior courts may be compelled, by appropriate process, to perform the duties laid upon them. But no judge can be held liable, at the suit of a private person, for any action taken or omitted by him, or decision rendered, in the exercise of his office of judge and of his judicial discretion, even though he acted with malice or corruptly, provided he kept within the bounds of his jurisdiction, which, in the case of superior courts, will be presumed. For gross abuses of power or malversation in office, on the part of the judiciary, the remedy is by impeachment. A similar immunity protects the high officers of the executive department. They may be controlled in the performance of merely ministerial duties, involving the ascertained rights of individuals, by the process of the courts. But actions do not lie against them for damages sustained by private persons in consequence of their political or public acts.10 "Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more per ↑ Jones v. Loving, 55 Miss. 109. • Borough of Freeport v. Marks, 59 Pa. St. 253; Jones v. Loving, 55 Miss. 109; Amperse v. Winslow, 75 Mich. 234, 42 N. W. 823; Walker v. Hallock, 32 Ind. 239. Fray v. Blackburn, 3 Best & S. 576; Calder v. Halket, 3 Moore, P. C. 28; Barnardiston v. Soame, 6 How. St. Tr. 1063; Hamond v. Howell, 2 Mod. 218; Houlden v. Smith, 14 Q. B. 841; Scott v. Stansfield, L. R. 3 Exch. 220; Kemp Bradley v. Fisher, 13 Wall. 335; Shoemaker v. Neville, 10 C. B. (N. S.) 523; v. Nesbit, 2 Rawle, 201; Allec v. Reece, 39 Fed. 341. 10 Mississippi v. Johnson, 4 Wall. 475; Marbury v. Madison, 1 Cranch, 137; Macbeath v. Haldimand, 1 Term R. 172; & B. 275; Grant v. Secretary of State, 2 Gidley v. Lord Palmerston, 3 Brod a revolutionary eruption, the regular operation of constitutional law is disturbed. In the presence of revolution, law is impotent. It is, indeed, a great task of practical politics to bring back revolutionary movements as soon as possible into the regular channels of constitutional reform. There can be no right of revolution, unless exceptionally; it can only be justified by that necessity which compels a nation to save its existence or to secure its growth where the ways of reform are closed. The constitution is only the external organization of the people, and if, by means of it, the state itself is in danger of perishing, or if vital interests of the public weal are threatened, necessity knows no law." POLITICAL AND PERSONAL RESPONSIBILITY. 9. Generally speaking, the responsibility for political action is political only.. That is, officers of the government, in either of its branches, are not liable at the suit of private parties for the consequences of acts done by them in the course of their public functions and in matters involving the exercise of judgment or discretion. In order to the due administration of government, it is necessary that the officers who are charged with the various duties of making, interpreting, and administering the laws should enjoy a due measure of immunity from being called to account for their public acts at the instance of private parties. Misgovernment is to be remedied at the ballot box, not by suits at law. If the legislature attempts to violate or defy the constitution, it will be held in check by the judicial department. But for unwise or oppressive laws, not conflicting with the constitution or private rights, there is no redress save by the election of a new legislature. Courts cannot set aside a statute regularly passed, on the ground that it was procured by bribery, fraud, or corruption. And if individuals suffer detriment by reason of the laws enacted, they have no right of action against the members of the legislative body. "It certainly cannot be argued," says the court in Mississippi, "that the motives of the members of a legislative assembly, in voting for a particular law, can be inquired • Bluntschli, Theory of the State, 477. into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law."" And so, also, whenever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with all the immunities of government, and are exempt from all liability for their mistaken use, although they may be held responsible if shown to have acted corruptly. The judiciary are invested with a like privilege. Judges of inferior courts may be compelled, by appropriate process, to perform the duties laid upon them. But no judge can be held liable, at the suit of a private person, for any action taken or omitted by him, or decision rendered, in the exercise of his office of judge and of his judicial discretion, even though he acted with malice. or corruptly, provided he kept within the bounds of his jurisdiction, which, in the case of superior courts, will be presumed." For gross abuses of power or malversation in office, on the part of the judiciary, the remedy is by impeachment. A similar immunity protects the high officers of the executive department. They may be controlled in the performance of merely ministerial duties, involving the ascertained rights of individuals, by the process of the courts. But actions do not lie against them for damages sustained by private persons in consequence of their political or public acts.10 "Where the heads of departments are the political or confidential agents of the executive, merely to execute the will of the President, or rather to act in cases in which the executive possesses a constitutional or legal discretion, nothing can be more per ↑ Jones v. Loving, 55 Miss. 109. 8 Borough of Freeport v. Marks, 59 Pa. St. 253; Jones v. Loving, 55 Miss. 109; Amperse v. Winslow, 75 Mich. 234, 42 N. W. 823; Walker v. Hallock, 32 Ind. 239. 9 Fray v. Blackburn, 3 Best & S. 576; Calder v. Halket, 3 Moore, P. C. 28; Barnardiston v. Soame, 6 How. St. Tr. 1063; Hamond v. Howell, 2 Mod. 218; Houlden v. Smith, 14 Q. B. 841; Scott v. Stansfield, L. R. 3 Exch. 220; Kemp Bradley v. Fisher, 13 Wall. 335; Shoemaker v. Neville, 10 C. B. (N. S.) 523; v. Nesbit, 2 Rawle, 201; Allec v. Reece, 39 Fed. 341. 10 Mississippi v. Johnson, 4 Wall. 475; Marbury v. Madison, 1 Cranch, 137; Macbeath v. Haldimand, 1 Term R. 172; Gidley v. Lord Palmerston, 3 Brod & B. 275; Grant v. Secretary of State, 2 C. P. Div. 445. fectly clear than that their acts are only politically examinable. But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured has a right to resort to the laws of his country for a remedy." 11 To illustrate, the right of removal from office is an executive power, for the exercise of which. generally, there can be no responsibility save such as is political. Thus, when the incumbent of an office is dismissed, he cannot maintain an action for damages against the officer or officers who exercised the right to remove him, unless he can show that malice and a desire to injure him were the impelling motives of their action.12 On similar principles, public agents, military or civil, of foreign gov ernments (even revolutionary governments) cannot be held responsible, in any court within the United States, for acts done within their own states, in the exercise of the sovereignty thereof, or pursuant to the directions of their governments.13 In matters of contract the rule is that a public officer who does not interpose his own credit is not liable on a contract executed by him on behalf of the state. even in cases where he might have been liable had he represented a private party; and where it is sought to charge him with a personal responsibility, the facts and circumstances must be such as to show clearly that both parties acted upon the assumption that a personal liability was intended.14 In the case of high executive officers, as in the case of the judges, great misbehavior is ground for impeachment and removal from office. With regard to inferior officers, the rule is that they are not responsible at the suit of private parties for acts done by them ir obedience to lawful commands, or in the bona fide and honest exer cise of a discretion with which the law invests them, but they must not use their official authority to inflict wanton or malicious injury upon others, nor neglect the duties which the law requires them to perform for the benefit of those who have a right to demand their services. Where a ministerial officer, for example, acts in accord 11 Marbury v. Madison, 1 Cranch, 137, 166. 12 Burton v. Fulton, 49 Pa. St. 151. 13 Underhill v. Hernandez, 13 C. C. A. 51, 65 Fed. 577. 14 New York & C. S. S. Co. v. Harbison, 16 Fed. 688; Parks v. Ross, 11 How. 362; Hodgson v. Dexter, 1 Cranch, 345. |