OF THE LIABILITY OF EXECUTIVE OFFICERS.
IT is a self-evident
principle, that an illegal mandate or instructions from the president, can
give no sanction to the conduct of a subordinate officer. On the contrary,
the president would be liable to the action of a person injured in the
same manner that a private individual would be. The law makes no
distinction of persons, and the maxim that the king can do no wrong, so
much admired in England, exists by no analogy in a republican government.
It may not be improper to consider why such a rule is admitted in
monarchies, and why it cannot take place in a well constituted republic.
In every monarchy, a quality termed prerogative, is attached to the
monarch. It is defined by the learned commentator on the laws of England,
"that special preeminence which the king hath over and above all
other persons, and out of the ordinary course of law." 1
It cannot be shared with the people, for then it would cease to be
prerogative: "it is that law in case of the king, which is law in no
case of the subject." One of these prerogatives is, that no personal
redress can be had from the king. He may actually, (it would seem,) commit
any outrage on any of his subjects; he would be liable neither to a
prosecution nor a civil action. "He is considered as a superior
being, and entitled to that awful respect which may enable him with
greater ease to carry on the business of the government."
2 These doctrines, grating as they
are to republicans, are palliated by the further remark, that prerogative
is given for the "benefit of the subject, in the confidence that it
will only be exerted to the advantage of the realm — and that to
subject him to civil or criminal proceedings, would be to subvert the
whole order of that species of government." The theory is not unjust,
and the remark of Locke, the great champion of a tempered system of
popular rights, must be acknowledged to be cogent — "as to
personal wrongs, the harm which the sovereign can do, in his own person,
not being likely to happen often, nor to extend itself far; the
inconvenience of some particular mischiefs, that may happen sometimes,
when a heady prince comes to the throne, are well recompensed by
the peace of the public, and the security of the government, in the person
of the chief magistrate being thus sent out of the reach of danger."
But the principle which thus shields and protects the monarch; the
sovereignty resident in himself, creates the distinction between him and
the elected, though supreme, magistrate of a republic, where the
sovereignty resides in the people. All its officers, whether high or low,
are but agents, to whom a temporary power is imparted, and on whom no
immunity is conferred. An exemption from the power of the law, even in a
small particular, except upon special occasions, would break in upon this
important principle, and the freedom of the people, the great and sacred
object of republican government, would be put in jeopardy. The exception
adverted to, is that already noticed, of members of the legislature going
to, attending at, or returning from a session of congress but even this
exception is qualified; the commission of treason, felony, or the
slightest breach of the peace, would convince the member, that his public
function in nowise protected him from the administration of justice; but
no other officer of government is entitled to the same immunity in any
1. 1 Blackst. 239.
2. 1 Blackst. 240.
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