with almost bitter sharpness; it is laid down with the feeling that this sharpness was perhaps necessary to give the matter the hearing which it of right demands.

Lyman P. Wilson.

The State as a Party Litigant. By Robert Dorsey Watkins, Ph.D. Johns Hopkins University Studies in History and Political Science, series XLV, no. 1. 1927. pp. 212. Baltimore: Johns Hopkins Press.

The opening chapter of this study illustrates some of the pitfalls which make hazardous the path of the layman when he makes an excursion into the obscure byways of legal history. The suggestion is made that,1

"In spite of changes in form, as long as a Roman community existed, the consent of the sovereign, that is, of the community, was needed for any exceptional legislation...

"Although there is authority for holding that at the time of the compilation of the corpus, this condition had changed and the emperor was considered above and outside of the State, this change was then of such comparatively recent development that the influence of the old theory of the emperor as 'a magistrate with limited and delegated powers' exercised a powerful if not controlling influence. It was under the older theory that most of the texts of the law were compiled, so that the influence on other countries of the recent doctrine need not have been very pronounced."

The author proceeds to state that quod principi placuit habet legis vigorem (which he translates, "what has pleased the king has the force of law."),2 "seems the most absolute of autocratic theories. But read in connection with its context, and especially with the concluding lines of the same sentence, it has no such meaning. The reason that what pleases the king has the force of law is not that it is the arbitrary will of the king, but 'because by the lex regia which was passed concerning his rule, the people confided to him and conferred upon him all his dominion and power'. He exercises, then, not his own but a delegated power, whose vigor is in reality obtained not because it is his will, but because the people have entrusted the law-making power to him. . . ." These statements, if indeed intended by the author as more than mere repetition of rhetorical phrases which were thrown as a sop to the Roman mob, invoking a fiction quite at variance with the true facts, would detract from the credit due the author for much of the careful work which follows. On this point, he says in conclusion,3

"The emperor, then, was subject to law, in that his actions could be classed as legal or illegal, right or wrong according to their conformity to law; but he was, so long as he retained his position, exempt from prosecution, not because he could do no wrong, but because, while emperor, there was no forum in which he could be tried."

1Page 2. 'Page 3. 'Page 4.

The remainder of the first chapter is devoted to a consideration of the early theory and practice in England in respect of the non-liability of the king for his acts. Here the author, relying upon such writers as Pollock, Maitland, Holdsworth and Ehrlich, is not materially misled by Bracton's sounding phrases, though he attributes to the author of De Legibus Angliae an authority not usually accorded by English legal historians to the portions of his work with which we are here concerned. The assumption that "the lawyers of that time" agreed with Bracton's statements as to the responsibility of the sovereign is hardly consistent with Bracton's admission that he is writing of the laws of the good old days of a generation before his time, the days of Raleigh and Pateshull.4

In the subsequent chapters, the author has collected a large number of cases dealing with the state (under this term he includes king, sovereign and government) as a party to litigation, as well as suits against public officials. Chapter II treats of the petition of right in England; chapter III, the state as plaintiff in England; chapter IV, suits against officers in England. In chapters V to VIII, the doctrine is examined in substantially the same way for the United States government. Chapter IX treats of state property in courts of Admiralty; chapter X, the responsibility of the state and its officers in France; and chapter XI, the state before foreign courts. If the reader will first examine chapter XI, he will understand the author's point of view and the thesis he adduces. With this introduction, the material in the body of the work will be found to be on the whole quite accurate and complete, though largely a duplication of prior studies.

The author refers repeatedly to the reason given by Mr. Justice Holmes in Kawananakoa v. Polyblank for the immunity of the sovereign power from suit without its consent, "that there can be no legal right against the authority that makes the law on which the right depends," and remarks with surprise that it was not until 1906 that the doctrine in the United States was supported by a justification. But surely this reason required no mention during the currency of the Austinian theory of sovereignty, and indeed Judge Holmes attributes its origin to Hobbes. Nor do the author's harsh criticisms of judicial support of the doctrine of sovereign immunity, at least in the early cases, seem justified in view of the reception accorded the decision of Chisholm v. Georgias at the hands of the representatives of the people. Nor does it seem impossible, as the author finds it, to reconcile United states v. Lee' with Stanley v. Schwalby,10 since in the latter case not only was the title of the United States determined, but it was treated by the Texas Court of Civil Appeals as a party and a judgment for costs entered against it, and the Texas Supreme

"Fol. I.

See MAITLAND'S, INTRODUCTION TO THE NOTE BOOK, p. 40 et seq. Compare SALMOND, JURISPRUDENCE (7th ed. 1924) § 119.

6205 U. S. 349, 353, 27 Sup. Ct. 526 (1906).

AUSTIN, JURISPRUDENCE (4th ed. 1873), pp. 285, 286, 296. 82 Dall. (U. S.) 419 (1793).

9106 U. S. 196, 1 Sup. Ct. 240 (1882).

10147 U. S. 508, 13 Sup. Ct. 418 (1892).

Court had denied a petition for writ of error to review the judgment. Furthermore, the evidence in the case was insufficient even as against the individual defendants, the officers occupying the land, and the judgment was reversed as to them. On page 108 it is stated,

"About the only difference between the Ayers" and the Young12 cases is that in the latter the penalty and danger from the suits were more severe. It is submitted that this is not a 'legal' distinction." Another distinction is that the Ayers case was a tax case, and the injunction was granted in the Young case on the ground of inadequacy of the legal remedy, a well recognized ground of equity jurisdiction. The author's argument13 for the metaphysical view that in admiralty the ship itself is liable for its actions and collisions, and the action against it not an action against the owner, leads to the difficulties pointed out on page 131. Where it is desirable to hold the state liable for collisions of its ships, it would seem preferable to do so openly.

The doctrine of state responsibility has had a vigorous development in France since 1899. In that year article 1384 of the civil code was amended to substitute the liability of the state for that of teachers in the state schools. The further development was by judicial decision. The extent to which responsibility of the state has recently been carried in France is brought out by the following quotations,16 "The theory of fault, manifest in private law, is applied to the individual, and determines his responsibility, but the responsibility of the state seems to be that of an insurer against injury from any cause, even the personal fault of its servants, in the operation of the public services. It is not unreasonable that in the performance of these services which can be rendered by the state alone, or by it more efficiently, it should guarantee that citizens brought in contact with these services should not be injured through the employment of defective manpower any more than defective materials. It is as certain that some incompetents will be employed as that some defective machinery will be used; the danger is the same in both; the guarantee should be the same.

If the state and the officer are both sued, then according to modern rules the state is subrogated to the rights of the victim against the officer (Lemonnier, Thevenet); or guarantees payment if judgment cannot be enforced against the officer (Babouet). But if the state alone is sued, if the victim does not pursue his remedy against the officer also, the state has no remedy; it is not subrogated to a mere right of action.

"In re Ayers, 123 U. S. 443, 8 Sup. Ct. 164 (1887).

12 Ex parte Young, 209 U. S. 124, 28 Sup. Ct. 441 (1907).

18 Page 117.

14BAUDRY-LACANTINERIE & BARDE, TRAITÉ DE DROIT CIVIL, § 2909.

15 In addition to materials collected by Dr. Watson, see DUGUIT, LAW IN THE MODERN STATE (Translation by Huebsch), chap. VII; Laski, Responsibility of the State in England, (1919) 32 HARV. L. REV. 447, 467.

16 Pages 163, 164, 165, 167.

The latest step. . . has been the direct recognition of the responsibility of the state without fault, whenever a special damage has been done, or an abnormal sacrifice required.

"... Whether the loss has been caused by the personal fault ofthe agent, or has been without fault, or has resulted from a perfectly legal administrative action, if its result has been to place a more than proportionate share of the burden of administration on one or a few, those injured may sue and recover from the solvent state."

Undoubtedly, the recent tendency to limit the "royal prerogative of dishonesty" is a wholesome one, but its progress in the American states has not been rapid. It is not for the present of great importance whether the state consents to be sued by petition of right, or in a court of claims, or in an administrative proceeding, or by an ordinary civil action. The procedure varies. Liability for both tort and contract is established in civil law countries. As Dr. Watson points out, in France the state has become practically an insurer against the social risk.17 England, the United States and a few of the state governments recognize liability in some sort of court proceeding for contract, but only a very limited liability in tort, though liability in this field is broader than Dr. Watkins would lead us to believe.

Dr. Watkins would apparently go the full distance and impose an insurer's liability on the state in favor of all persons injured by the operation of the machinery of government, or by the acts of state officers and employees, whether tortious or not. It is easy to talk of "equity," "justice," and "wrongs," but surely the problem requires more careful consideration. Should the liability of the state, respondeat superior, be the same as that of an individual in respect of the torts of his agents and servants? Or should the state be liable as an insurer? And if so, should this liability cover all acts of its officers and employees, including frauds perpetrated for an officer's personal benefit, or should it be limited to acts performed in the business of the state and for its benefit? Should this liability extend to the acts of all its officers, including the legislative and judiciary, or should it be limited in this respect? It does not solve the problem to base liability upon the proposition that "the state acts and wills through its agents; when they act and will it is the state that acts and wills. If then these agents commit, within their representative capacity, a fault, it is the state that has committed the fault, which is directly imputable to it, and for which this moral person, just as a physical person, is directly and personally responsible."18 To one familiar with the psychological metamorphosis to which the individual is subject when he becomes a public official, it would seem that responsibility of the state, respondeat superior, should be limited by more substantial safeguards than those afforded by the principle of equitable distribution of the economic surplus, or the doubtful expediency of making the taxpayer a guarantor of the payment of judgments against state officials. An agent of the state is quite a different person from the agent of an individual or of a business

17Page 162. 18Page 201.

corporation, and subject to little actual control or supervision. In conclusion, it may be suggested that the dignity and honor of the state no longer require a general rule exempting the state from responsibility. Nor is there any inherent difficulty in imposing liability on the sovereign. While the state cannot be sued except as permitted by law, and it is now probably too late for the courts to "presume" this consent without legislative action,19 the time has come for a radical extension of state responsibility in England and America. But it is not believed that we are ready to accept the doctrine of the state as an insurer against the social risk. Responsibility in contract and for private property taken for a public use has been long recognized. No reason appears for denying responsibility when private property is destroyed in the public interest, though not taken for use, and our legislatures have been granting compensation in this field. No doubt some extension of state responsibility should be made in the field of torts, but care should be taken on the one hand to guard the treasury from looting and the taxpayer from added burdens, and on the other, means must be devised to preserve a high degree of individual responsibility among the officers and employees of the state when the possibility of individual money liability is removed.20 With the recognition of state responsibility, the doctrine which forbade set-off against the state will disappear. The special exemption of the state from the doctrines of estoppel, laches and statute of limitations probably needs considerable limitation, but the public interest in the preservation of state funds cannot be entirely ignored if those funds are to guarded by inefficient public officials who are not subject to effective supervision and not impelled by motives of self interest.

Horace E. Whiteside.

The Law of Evidence: Some proposals for its reform. pp. xxii, 98. Yale University Press. 1927.

This book was prepared by a committee composed of Edmund M. Morgan, Zechariah Chafee, Jr., Ralph W. Gifford, Edward W. Hinton, Charles M. Hough, William A. Johnston, Edson R. Sunderland and John H. Wigmore, working under the auspices of the Legal Research Committee of The Commonwealth Fund.

The need of reform in the rules (as distinguished from basic principles) by which our courts determine the admissibility of evidence has long been apparent. Professor Wigmore's monumental treatise has demonstrated the need beyond argument. Teachers of Evidence have spent and are spending large portions of their time in demonstrating the shortcomings of those rules which seem not to be in accord with experience. Here and there are found free-thinking judges who strike out boldly with the cudgel of common-sense, and make some small and occasional inroads upon the forces of "the god of things

19See the argument, page 198.

20See Laski, op. cit., supra note 15, at 458.