Northwestern University School of Law Northwestern University School of Law Scholarly Commons Faculty Working Papers 2010 Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic James E. Pfander Northwestern University School of Law, [email protected] Jonathan L. Hunt Mayer, Brown & Platt LLP Repository Citation Pfander, James E. and Hunt, Jonathan L., "Public Wrongs and Private Bills: Indemnification and Government Accountability in the Early Republic" (2010). Faculty Working Papers. Paper 104. http://scholarlycommons.law.northwestern.edu/facultyworkingpapers/104 This Working Paper is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Faculty Working Papers by an authorized administrator of Northwestern University School of Law Scholarly Commons. PFANDERHUNT-FIN2.DOC 11/8/2010 11:24:58 AM PUBLIC WRONGS AND PRIVATE BILLS: INDEMNIFICATION AND GOVERNMENT ACCOUNTABILITY IN THE EARLY REPUBLIC JAMES E. PFANDER* & JONATHAN L. HUNT† Students of the history of administrative law in the United States regard the antebellum era as one in which strict common law rules of official liability prevailed. Yet conventional accounts of the antebellum period often omit a key institutional feature. Under the system of private legislation in place at the time, federal government officers were free to petition Congress for the passage of a private bill appropriating money to reimburse the officer for personal liability imposed on the basis of actions taken in the line of duty. Captain Little, the officer involved in one oft-cited case, Little v. Barreme, pursued this avenue of indemnification successfully. As a result, the ultimate loss associated with that officer’s good faith effort to enforce federal law fell on the government rather than on the officer himself. This paper fills out the picture of government accountability in the early nineteenth century by clarifying the practice of congressional indemnification. After identifying cases in which officers sought indemnity from Congress through a petition for private relief, we examine the way official liability, as administered by the courts, interacted with private legislation, as administered by Congress, to shape the incentives of government officers to comply with the law. We find that a practice of relatively routine indemnification took the sting out of sovereign immunity, a doctrine that key players— including James Madison and John Marshall—treated as thinly formalistic. We also find that Congress assumed responsibility for deciding when federal officers were entitled to indemnity for acts taken in the scope of employment. The antebellum system thus contrasts sharply with modern government accountability law. Jurists today tend to regard sovereign immunity as a barrier to relief, rather than a principle of forum allocation that preserves legislative primacy in the adoption of money bills. Moreover, courts today often refrain from deciding the question of formal legality in an effort to strike a proper balance between the victim’s interest in accountability and the official’s interest in immunity. Whatever the wisdom of the resulting body of qualified immunity law, the doctrine reflects judicial control of matters that the early republic had assigned to the legislative branch. * Owen L. Coon Professor of Law, Northwestern University School of Law. Thanks to the Northwestern faculty research program for research support. Thanks also to my copanelists, Nicholas Parrillo and Gautham Rao, and to the American Society for Legal History, for the opportunity to present this paper as part of the panel on the administrative law of the early republic at the Society’s November 2009 conference. Thanks as well to Al Alschuler, Kristin Collins, Charlotte Crane, Richard John, John Goldberg, Jack Goldsmith, Henry Monaghan, Gerry Neuman, Bob Pushaw, Jed Shugerman, Jay Tidmarsh, Amanda Tyler, and Adrian Vermeule, and to the faculty workshop at Harvard Law School for comments on an early draft. † J.D. 2008, Northwestern University School of Law; Associate, Mayer Brown LLP, Chicago, Illinois. Copyright © 2010 by James E. Pfander & Jonathan L. Hunt. 101 PFANDERHUNT-FIN2.DOC 11/8/2010 11:24:58 AM 102 NEW YORK UNIVERSITY LAW REVIEW [Vol. 85:nnn INTRODUCTION ..........................................................................................102 I. SOVEREIGN IMMUNITY, THE POWER OF THE PURSE, AND PRIVATE BILLS...............................................................................................109 II. MARITIME TORTS DURING THE QUASI-WAR WITH FRANCE ................115 III. PRIVATE BILLS AND OFFICIAL INDEMNIFICATION...............................125 A. An Introduction to the Practice of Private Legislation ...........126 B. Private Indemnification for Maritime Torts ............................131 C. Institutionalizing the Practice of Indemnification ...................140 D. Indemnity, Compensation, and Antebellum Administration....150 IV. INDEMNITY IN THE ANTEBELLUM SYSTEM OF GOVERNMENT ACCOUNTABILITY ...........................................................................153 A. Reflections on Sovereign Immunity .........................................153 B. Official Liability and Immunity ...............................................157 CONCLUSION..............................................................................................164 APPENDIX ..................................................................................................167 INTRODUCTION Many students of administrative law have examined the relatively strict system of official liability that prevailed during the nineteenth century.1 No case better illustrates the standards to which federal government officers were held than Little v. Barreme.2 There, the Supreme Court affirmed a finding that George Little, a Captain in the United States Navy, was subject to personal liability for the wrongful seizure of the Flying Fish, a vessel that was suspected of trading with the French in violation of federal law. As a consequence of the Court’s decision, Little was obligated to pay damages, costs, and interest totaling the substantial sum of $8504.3 Writing for the Court, Chief Justice Marshall acknowledged both the harshness of the rule and his own initial inclination to protect 1 See, e.g., RICHARD H. FALLON, JR. ET AL., HART & WECHSLER’S THE FEDERAL COURTS AND THE FEDERAL SYSTEM 841–45 (6th ed. 2009) [hereinafter HART & WECHSLER] (exploring historical and conceptual foundation of sovereign immunity); GREGORY C. SISK, LITIGATION WITH THE FEDERAL GOVERNMENT 104–19 (2000) (discussing evolution of federal sovereign immunity in Supreme Court); David E. Engdahl, Immunity and Accountability for Positive Governmental Wrongs, 44 U. COLO. L. REV. 1, 14–15 (1972) (discussing substantial disfavor of governmental immunity during nineteenth century); Vicki C. Jackson, Suing the Federal Government: Sovereignty, Immunity, and Judicial Independence, 35 GEO. WASH. INT’L L. REV. 521, 556 (2003) (reviewing availability of suits against government officers); James E. Pfander, Sovereign Immunity and the Right To Petition: Toward a First Amendment Right To Pursue Judicial Claims Against the Government, 91 NW. U. L. REV. 899, 937 n.138, 966–71 (1997) (examining rise of government accountability at common law); Ann Woolhandler, Patterns of Official Immunity and Accountability, 37 CASE W. RES. L. REV. 396, 414–53 (1986) (discussing emergence of legality and discretionary models of official liability in nineteenth century). 2 6 U.S. (2 Cranch) 170 (1804). 3 Id. at 175. PFANDERHUNT-FIN2.DOC 11/8/2010 11:24:58 AM December 2010] PUBLIC WRONGS AND PRIVATE BILLS (DRAFT) 103 Captain Little from liability.4 In a revealing aside, Marshall suggested that his colleagues on the Court had persuaded him that lenity was inconsistent with the necessarily strict role the federal courts must play in enforcing official liability.5 In a well-known companion case, the Marshall Court likewise upheld the imposition of personal liability on Captain Alexander Murray for the wrongful seizure of the Danish vessel the Charming Betsy.6 The Little and Murray decisions offer a striking contrast to modern official accountability rules. Since the latter part of the nineteenth century, the Court has developed rules of official immunity that may have precluded the imposition of personal liability on Captains Little and Murray. Today, officials enjoy immunity from liability as long as they do not violate clearly established legal rules of which a reasonable person would have known.7 Scholars debate the justifications for this rule of qualified immunity. Some express concern that the rule undermines the goal of securing compensation for victims of government lawlessness;8 others note the Court’s suggestion that officials might shy away from the vigorous performance of their official duties if they faced the sort of strict liability that the Little and Murray Court deemed to be essential to government accountability.9 An increasingly sophisticated literature has grown up around this question of official liability and immunity, one that considers alternatives to official immunity and examines the likely impact of liability on the incentives of government principals and agents.10 4 Id. at 179. 5 Id. 6 See Murray v. Schooner Charming Betsy, 6 U.S. (2 Cranch) 64, 117 (1804). 7 See Harlow v. Fitzgerald, 457 U.S. 800, 818–19 (1982) (“[G]overnment