Horace Gray

“ It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from direct suit is therefore without exception. This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent ”

“ The English remedies of petition of right, monstrans de droit, and traverse of office, were never introduced into this country as a part of our common law; but in the American colonies and states claims upon the government were commonly made by petition to the legislature. The inadequacy or the want of those remedies is no reason for maintaining a suit against the sovereign, in a form which is usual between private citizens, but which has not been expressly granted to them as against the sovereign. ”

“ The objection to the exercise of jurisdiction over the sovereign or his property, in an action in which he is not a party to the record, is in the nature of a personal objection, which, if not suggested by the sovereign, may be presumed not to be intended to be insisted upon. ”

“ If those defendants alone are to be held to be parties or interested, the plaintiff is entitled, as of right, to immediate execution as well as to judgment; and the court has no discretion to stay an execution between private parties on considerations of the interests of the public. To maintain this action, independently of any legislation by congress, is to declare that the exemption of the United States from being impleaded without their consent does not embrace lands held by a disputed title ”

“ And, indeed, if we were to allow a mandamus to the steward alone, and the writ were obeyed, the property of the crown would be affected indirectly by the mandamus to the steward alone, when it cannot be affected directly by making the sovereign a party to the mandamus.' 'But in the case where there is a complaint on the part of a subject against the crown in any matter whatever, the course is to proceed by petition of right, or else by monstrans de droit, or traverse of office, as the case may require. These proceedings have been recognized and acknowledged for many centuries. ”

“ That maxim is not limited to a monarchy, but is of equal force in a republic. In the one, as in the other, it is essential to the common defense and general welfare, that the sovereign should not, without its consent, be dispossessed by judicial process of forts, arsenals, military posts, and ships of war necessary to guard the national existence against insurrection and invasion ”

“ If the plaintiff is entitled to judgment, it can only be upon the ground that the United States are not a party to the record and have no such relation to the action that their possession of the land demanded will prevent judgment against the defendants of record. ”

“ Over the sovereign we can have no power. In like manner where the parties are acting as servants of the crown, and are amenable to the crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction.' In Doe v. Roe, 8 Mees. & W. 579; S.C.. Hurl. & W. 159, which was an action of ejectment for a house and lands adjoining Hurst castle, the declaration had been served upon one Watson and upon the board of ordnance. ”

“ The earliest authority to be referred to is Bracton, who wrote in the reign of Henry III., and who, in the famous passage of his first book, affirms that the king ought not to be subject to man, but to God and to the law, because the law makes the king; and therefore the king should ascribe to the law what the law ascribes to him, namely, dominion and power, for there is no king where reigns will and not law. ”

“ The English authorities from the earliest to the latest times show that no action can be maintained to recover the title or possession of land held by the crown by its officers or servants, and leave no doubt that in a case like the one before us the proceedings would be stayed at the suggestion of the attorney general in behalf of the crown. ”

“ Gray, was sustained, was defined to be, that when a plain official duty, requiring no exercise of discretion, is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it, notwithstanding the officer pleads the authority of an unconstitutional, and therefore void, law for the violation of his duty. ”

“ Div. 351, the mikado of Japan, a sovereign prince, bought in Germany shells, made there, but said to be infringements of an English patent. They were brought to England in order to be put on board a ship of war belonging to the mikado, and the patentee obtained an injunction against the agents of the mikado and the persons in whose custody the shells were, restraining them from removing the shells. The mikado then applied to be and was made a defendant in the suit. ”

“ They are probably expensive and tedious; but these considerations are not sufficient for our dispensing with them. We have no more authority, for the sake of convenience, to lay them aside and introduce writs or other proceedings which are usually adopted between subject and subject, among which these writs of mandamus are to be reckoned, than to introduce writs and other proceedings, now solely used in cases of prerogative, in causes between subject and subject.'
In Queen v. ”

“ A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter.' And the ground upon which the bill in that case, as well as in the previous cases of Osborn v. Bank of U.S. and Davis v. ”