Kawanakoa vs. Polybank
Kawanakoa vs. Polybank
A sovereign is exempt from suit, not because of any formal conception or
obsolete theory, but on the logical and practical ground that there can
be no legal right as against the authority that makes the law on which
the right depends, and as this doctrine is not confined to full sovereign
powers it extends to thbse, such as the Territories of the United States,
which in actual administration originate and change the law of contract
and property.
It is elemental, of course, that the state or sovereign cannot
be sued in its own courts without its consent; and this is as
applicable to a dependent state or sovereignty as to one which
has no suzerain or overlord. The political entity which makes
laws and creates tribunals for their enforcement, which creates
judicial remedies and legislates as to how, when, and under
what conditions rights may be litigated and remedies enforced,
manifestly cannot be sued in the courts of its creation except
by its own consent and legislative provision. In the other
case, such political entity would be subordinate to its own
creatures. Beers v. State of Arkansas, 20 How. 527, 529.
The immunity of the Territory from suit save by its consent
rests upon the more easily defined basis, the practical and
common-sensd, ground that a body politic which enacts its
own laws and creates its own courts, defining and limiting their
jurisdiction, is of necessity exempt from the jurisdiction of
those courts save by its own consent.
In the very nature of things, the creator is not, save with
its own consent, under the dominion of its creature; the power
which creates tribunals must of necessity be superior to their
jurisdiction. If there were to be any general judicial jurisdiction
over the Territory, Congress would naturally have placed
it in the Federal courts; yet § 86 of the Organic Act creating
the Federal court of local jurisdiction contains no such provision.
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