LUBY v. been done in pursuance of their directions or suggestion, and with M. T. 1865. Common Pleas. their approbation; and that he hoped to be able to prove, at all events, that the acts in question were directed personally by the Lord Lieutenant, and, when done, approved of by him; and he re- WODEHOUSE ferred to a letter published in the newspapers, in which the Lord Lieutenant, in answer to a letter of Lord Fermoy's, after alluding to the disturbed state of the country, expressed his approval of the measures which had been adopted by the Government for the suppression of the Fenian conspiracy; and he submitted that he was advised that the Lord Lieutenant, by thus adopting these acts, had rendered himself responsible for them. The Attorney-General (with him F. L. Dames). Mr. Mostyn states, in his affidavit, that this action has been brought against the Lord Lieutenant for acts alleged to have been done under authority given by him in his capacity as such Lord Lieutenant, and that the acts complained of are acts of State. I submit that this action is not maintainable against the head of the Executive in this country, and that it is the duty of the Court, at the earliest possible moment, to interfere, and say that they will not allow this case to proceed further. The plaintiff, in his affidavit, says that he expects to be able to prove at the trial that the acts complained of were done by the direction, authority, and sanction of the defendant, and that he personally interfered in such a way as to make himself responsible in this case for those acts; but the only foundation for this statement is the letter to Lord Fermoy, referred to in the affidavit. This very letter, however, by speaking of steps having been taken by the Government to repress seditious movements in Dublin and Cork, shows that whatever steps were taken by the Lord Lieutenant in this matter were taken by him in his official character, and as acts of State. A subject of the realm cannot bring an action against the Queen, or head of the Executive Government, for any acts done by the Queen or the Executive Government, as acts of State, but must seek a remedy elsewhere: see Mostyn v. Fabrigas (a). Lord Mansfield, in (a) Cowp. 161. Nov. 12. Common Pleas LUBY v. WODEHOUSE 66 66 M. T. 1865. the course of his judgment (a), says: "It is truly said that a Governor is in the nature of a Viceroy; and therefore, locally, during his “government, no civil or criminal action will lie against him. The reason is, because upon process he would be liable to imprison"ment." Now, the Lord Lieutenant of Ireland is a Viceroy; and to hold that he could be sued for his acts of government would be in direct opposition to the opinion of Lord Mansfield. It would, besides, paralyse all government; every felon who might think that he was improperly arrested might sue the Lord Lieutenant for his arrest; every notorious offender, for whose apprehension the Lord Lieutenant might issue a proclamation offering a reward, might bring his action of libel. Why, it may however be asked-why stay the proceedings? Why not put the Lord Lieutenant to his plea? The answer is, that it would involve all the mischiefs which it was the intention of the Constitution to guard against, if the Lord Lieutenant were obliged to come here to set out his letters patent, and to plead his privilege, and, if it were to be left to a jury to decide the extent and nature of that privilege. This present case, though novel, is not without a precedent. In 1792, Mr. Napper Tandy brought an action against Lord Westmoreland, the then Lord Lieutenant of Ireland-another against the then AttorneyGeneral-another against the then Speaker of the Irish House of Commons, for the alleged violation of his liberties, by the publi cation of a certain proclamation: see Tandy v. Earl of Westmoreland (b), reported by Mr. (afterwards Sir) Jonas Green, the then Recorder of Dublin. An application was made at the Plea side of the Exchequer, to set aside the writ of subpoena which had been served at the suit of Napper Tandy against the Lord Lieutenant. There was a good deal of controversy as to whether the act complained of was or was not an act of State. The Court however came to the conclusion that it, was, and set aside the writ, on the ground that, if such actions were allowed to proceed, the law of the land would become a dead letter. The Court however abstained from giving any opinion as to whether or not the head of the Executive was liable for any acts of a private nature; and therefore the case of (b) 27 State Trials, 1246. (a) Page 172. Common Pleas. LUBY บ. Hill v. Bigge (a), in which the Privy Council decided that the de- M. T. 1865. fendant, who was the Governor of a province, was not exempted from being sued upon a private bond, is clearly distinguishable from it. In the case of Buron v. Denman (b) an action was brought against WODEHOUSE a naval commander, for seizing certain slaves, for breaking into a factory, burning certain ships, and taking away the slaves. The defendant had no instructions from Government at the time that he did the acts alleged, but the acts were subsequently approved of by the Secretary of State. The action was brought in the Court of Exchequer, and was tried at bar. The question was raised, whether the subsequent approval of the Government rendered the acts complained of acts of State; and the three Barons of the Exchequer held that it did, and that the defence was a good one. Chief Baron Parke did not dissent. The cases of De Haber v. The Queen of Portugal, and Wadsworth v. The Queen of Spain (c), show that it is not proper to force an appearance to plead before granting relief. The case of Viveash v. Becker (d) is not in point here. That case simply decides that a consul is not a public officer entitled to privilege. In Calder v. Halket (e), which refers to Taaffe v. Downs (f), it was held that a Judge is privileged, who outsteps his privilege while acting bona fide in his capacity of Judge. [MONAHAN, C. J. Did not the defendant in this case plead his privilege?]—Yes. Butt (with him Dowse and O'Loghlen), for the plaintiff. There are only two grounds upon which this motion can be maintained—either that the Lord Lieutenant, by virtue of his capacity of Viceroy, is exempt from the jurisdiction of this Court, or that, admitting him to be generally amenable to the jurisdiction of the Court, yet that, for what was called an act of State he was not liable to be sued. (Having stated the substance of Luby's affidavits).—The action here brought against the Lord Lieutenant is clearly for an act of power, and not an act of State; and therefore (a) 3 M. P., C. C. 465. (c) 20 L. J., N. S., Q. B. 488-9. VOL. 17. (6) 2 Exch. 167. (d) 3 M. & S. 284. (f) Hatchell's Report. LUBY v. place in which Mr. Luby has M. T. 1865. the case of Tandy v. Westmoreland is not merely not an authority Common Pleas. against us, but is actually in our favour. This appears from the nature of the acts themselves. The writ of summons and plaint WODEHOUSE in the present case was copied from the declaration in the case of Entick v. Carrington (a). In that case, the plaintiff declared that the defendant broke and entered his dwelling-house, and carried away his papers, under a warrant from the Earl of Halifax and from the Privy Councillors of State, who suspected the plaintiff of being the publisher of a seditious libel. Lord Camden, in delivering the judgment of the Court, said that the power claimed for the Secretary of State, of seizing all the private papers of the plaintiff before he was convicted of writing or publishing the seditious libel, was not supported by a single citation from any law book; and that, if that doctrine could be maintained, England was not the any man of spirit or honour would desire to live. applied for his private papers, and been refused. His Counsel applied at the police-office for liberty to look at them, and was refused. We do not question the doctrine, that if a man was arrested under a warrant, the officer may, at the same time, seize anything which he thought relevant to the charge, or that, in time of rebellion documents might be seized, as being instruments of treason, and that seizure afterwards justified, by proving that they were so. This is not the present case. The plaintiff has sworn that he believed that he would be able to prove that the Lord Lieutenant took part in the acts complained of, in such a way as to make him responsible in law. Supposing the Lord Lieutenant, without any authority from the Privy Council, or any information, was to direct a body of police to do an illegal act, could it be said that it was an act of State, without allowing the question to be tried in the ordinary way? It is a well-established maxim of law, that there is no wrong without a remedy. If the AttorneyGeneral be right in his view of the law, where then would be the remedy? Even the Queen is not exempted from being sued: the petition of right is the remedy against her; but the law as to petitions of right is not extended to acts of trespass com(a) 19 State Trials, 1030; S. C., 2 Wilson, 275, LUBY บ. mitted by the Queen's servants. Upon the principle that the Queen M. T. 1865. Common Pleas. can do no wrong, she could not be held to have authorised the trespass; and thus a principle has grown up which has become the great protection of our liberty, for it means that the royal authority shall WODEHOUSE never be pleaded as a defence for a wrongful act; but that principle cannot by any contorsion, be held to justify a Lord Lieutenant in his wrong. When Tandy v. Westmoreland was decided, before the Union, Ireland was a separate and independent kingdom, and the Viceroy directly represented the Crown. Now there is no kingdom of Ireland. So far therefore as that case appears to be an authority for the present motion, the case, as reported, loses its force; but, even if that were not so, its authority is put an end to by the case of Hill v. Bigge (a) in which it is stated that no reliance can be placed upon the report of Napper Tandy's case, in which dicta were ascribed to the Court, in which it was impossible to concur. If, again, the case of Fabrigas v. Mostyn be good law, Irishmen have no remedy in their own Courts for acts such as the present; but they must go to England for redress. There have been, within the last twenty years, two cases in which the Lord Lieutenant of Ireland was sued-one being Birch v. Lord Clarendon, where the Lord Lieutenant paid the money.-[MONAHAN, C. J. I was the Attorney-General of the day at the time that Birch brought the action; but, as Lord Clarendon did not consider it a matter of State at all, the Attorney-General had nothing to do with it; and my recollection is, that it never went to trial.]—The declaration was filed, and Lord Clarendon paid £7000 rather than contest the action. [MONAHAN, C. J. If we come to the conclusion that an action could be maintained against the Lord Lieutenant, the question is, can we determine upon affidavit whether it is an act of State or not?]-I contend that, upon that view, you must put the Lord Lieutenant to his plea of privilege. The case can be then solemnly discussed, like every other important question of law, whereas, if you grant the present motion, there What do you consider the dis is no appeal. [MONAHAN, C. J. tinction, in a case of this description, between an act of power (a) 3 M. P., C. C. 480. |