Lee v. Kaufman

15 F. Cas. 162, 24 Int. Rev. Rec. 90, 3 Hughes 36, 17 Alb. Law J. 237, 1879 U.S. App. LEXIS 1636

Opinion

OPINION OF THE COURT

(HUGHES. District Judge).

The first question is whether it is competent for the government of the United States to appear by suggestion, as it has done in this cause. Though I concede that the intervention of the government in this manner, in a cause pending between other parties, is unusual in our American practice, I do not see that for that reason it is inadmissible. It was sanctioned by tne supreme court of the United States in the cases of Florida v. Georgia, 17 How. [58 U. S.) 478; Maxfield v. Levy [Case No. 9,321); and The Exchange, 7 Cranch [11 U. S.) 117; as well as others which might be cited. It was allowed in the case of The Pizarro [Case No. 11,199). I believe that intervention by this method is the settled practice in England. It was, for instance, the proceeding taken by the attorney-general, in Doe v. Roe, 8 Mees. & W. 579. On authority, therefore, I do not feel at liberty to question the right of the attorney-general to intervene by suggestion in a cause in which the government is alleged to be interested, as in this cause. Nor is there any validity in the objection that a new and side issue is introduced into the cause by this proceeding. It is nothing more in effect than another form of a plea to the jurisdiction. This plea always introduces a preliminary issue requiring to be dealt with before the cause can proceed upon the merits; and the present demurrer is, in effect, an issue of law joined on a plea to the jurisdiction, which is not anomalous and works no hardship.

We come, therefore, to the questions of law presented by the suggestion and demurrer. These are two: 1st. Whether the attorney-general’s suggestion is of itself sufficient to defeat the jurisdiction of the court over the cause; and, 2d. Whether, supposing it has not that effect ipso facto, the court may look into the grounds on which that officer intervenes; in pursuance of the observation made by Chief Justice Marshall in the case of U. S. v. Peters, 5 Cranch [9 U. S.) 115: “It certainly can never be alleged that a mere suggestion of title in a state to property in possession of an individual must arrest the proceedings of the court and prevent their looking into the suggestion and examining the validity of the title.”

I. I should compromise the judicial office if I were to devote any serious argument to the first of these questions. The right of every citizen to a judicial determination of a controversy affecting his liberty or property, in which he may be involved, will not be denied at this day in this country. The courts are open to the humblest citizen, and there is no personage known to our laws, however exalted in station, who by mere suggestion to a court can close its doors. against him. I hare no thought that the chief law officer of the United States, who in the performance of his duty in this cause has entered the suggestion now under consideration, claims for his action any such prerogative as that in question. But even if it were possible to conceive that such a pretension could be made, let it be answered that it is a cardinal tenet of the constitution that the judiciary are an independent branch of the government, not to be controlled in its dispensations of justice by interference from other departments, and not only empowered but bound to administer the right without fear, favor, or affection. It is useless to dwell upon these topics, but it is appropriate to recall what has been said by luminous jurists of a former era in regard to the decision of questions arising between citizens and their government. In book 2, c. 14, § 213, Vattel, has these sentences: “If any difficulties arise (on questions of contract and title between the sovereign and private persons) it is equally conformable to the rules of decorum, to that delicacy of sentiment which ought to be particularly conspicuous in a sovereign, and to the love of justice, to cause them to be decided by the tribunals of the state. And this indeed is the practice of all civilized states which are governed by settled laws.” In the same spirit were the utterances of Mr. Selden, one of England’s most illustrious scholars and lawyers in the time of the first Charles: “In all cases, my lords, when any right or liberty belongs to the subject by any positive law, written or unwritten, if there were not also a remedy by law for the enjoying or regaining the right or liberty where it is violated or taken from him, the positive law were most vain and to no purpose; and it were to no purpose for any man to have any right in any land or other inheritance if there were not a known remedy, that is, an action or writ by which in some court of ordinary justice he might recover it. And in this case of right or liberty of person, if there is not a remedy in the law for regaining it when it is restrained, it were of no purpose to speak of laws that ordain it should not be restrained.” 3 How. St Tr. 95. If the hereditament of an English subject could be taken and held by the king without question in the courts, the notable words which the elder Pitt pointed at George III., would have had no truth or meaning: “The poorest man may, in his cottage, bid defiance to all the force of the crown. It may be frail; its roof may shake; the wind may blow through it; the storms may enter; the rain may enter; but the king of England cannot enter; all his forces dare not cross the threshold of the .ruined tenement.” Speech on the excise act. If there could be no judicial inquiry into the government’s possession of property claimed by the citizen, what could be said of the clause in the fifth amendment to the constitution, forbidding that private property shall be taken for public use without just compensation, except that it was a meaningless form of empty words, a delusive safeguard against public wrong, a deceptive guarantee of private rights. The only alternative which would be left to the plaintiff, if this suggestion should prevail as confessed by counsel for the government, would be what Mr. Justice Grier once characterized as “the hopeless remedy of a petition to congress.” The effect would be to defeat a judicial adjudication of the rights of parties and refer the plaintiff’s claims for political determination to a political tribunal. If the fact be as implied by the suggestion, that there is no method known to the judicature of the country by which the rights of parties to this action could be judicially determined, it would be a reproach to American jurisprudence. In every sense would the result in this cause be unfortunate So much of sentiment, so much of sectional sentiment invests this estate of Arlington, .at once the burial-ground of soldiers who lost their lives for the Union and the patrimony of the Lees, that it were in the highest degree desirable that its title should have a judicial determination rather than be relegated to the debate and vote of a popular assembly, always more or less liable to the influences of partisan passion. It would, therefore, be somewhat excusable in the court if it should apparently, in its consideration of the suggestion of the government, lean in favor of retaining its jurisdiction of such a cause as that at bar.

II. I come now to look into the grounds on which the attorney-general, through counsel here, claims that the court should stay its action and dismiss the cause. It is conceded on all hands that the sovereign power in th's countiy, whether it be a state or the United States, cannot be made a direct party defendant in any action, except by its own consent, given generally by statute, or specially by its authorized law officer. And the question here is, whether it can be made so indirectly; and, in the present instance, whether the United States can be made so indirectly in an action brought against defendants wrho are the occupants of lands which it claims to own. Conceding under protest that the law may be against them on this broad proposition, counsel for the government themselves r arrow this latter question, and say that even though a suit may be brought indirectly against the United States, jret that it cannot be where the proceeding takes the form of an action of ejectment, brought against defendants who are occupants of lands which the government claims by prima facie title of record, of which it is in actual possession by its officers, and which it claims to be actually using for public purposes. Such is the exact pretension made in this cause by the government.

On the part of the plaintiff it is contended that the government does not hold the Arlington estate as a sovereign, for the reason that the jurisdiction of Virginia over it has never been surrendered; but that it holds it only in a corporate capacity, by the same, tenure as, and with no other prerogative than that by which a private corporation or citizen would hold the land in Virginia. 1 am not sure that the inquiry is material; but, in deference to the views of counsel, I will consider these respective pretensions in the light of the facts of the record. How does the government hold this property? By whom and for what public purposes? And does it hold it in its sovereign or corporate capacity? The estate consists of eleven hundred acres. Less than a fourth of it — two hundred acres— is set apart as a national cemetery. This parcel is undeniably occupied by an officer of the government,. and used for a necessary public purpose — a purpose, indeed, which no individual in the land would be willing to see defeated. The rest of the land, nine hundred acres, is occupied by some two hundred people, whom I judge from the record to be poor people, as every one but two or three signs his name with an attested cross-mark. Of all the occupants of this nine hundred acres, only one (R. P. Strong) is shown to be an officer of the government. They are mostly tenants of the government but paying no rent. The record shows that this land was not, until as late as 1872, “set apart and held as a military post and reserve connected therewith,” and directed to be “considered a military reservation pertaining to Fort Whipple.” For this land the government seems to have so little use, that it allows it to be occupied for their own purposes, probably in mere charity, by nearly two hundred people in the humblest walks of life.- Is it in fact a military reservation connected with a military post? Can it be more than “considered” so? A military post is a place at which troops are posted or intended to be posted, and without the troops, or the probability or the intention of troops being posted on it, a tract of ground cannot be a military post. Laying out the plan of a city in -a forest, and calling it a city, does not make it so; it remains a forest still. In the theoretical sense only is Fort Whipple a military post, and the lands around it a military reservation. The surface of Virginia is studded over with such “forts,” and the only happy thought connected with them is, that they are forts no longer. It is so in fact with Fort Whipple, and it is a painful anachronism now to “consider” it as still a fort. Yet, the name Fort Whipple implies that it was intended as a missionary, rather than a military post. Not only is the land thus set apart and directed to be considered a military reservation, almost wholly occupied by persons who are not agents or officers of the government, but the government has shown in another way how little real bona fide use it has for it. I consider that I may allude to the acts of congress as part of this record, for the judicial mind dwells in the laws of the country, and that of the federal courts in the statutes of congress, from which they derive all their jurisdiction. The action of these courts is wholly based on the statutes, so that the record of such a court is a palimpsest originally inscribed with the statute law of the subject, overwritten with the proceeding in the particular case. In 14 Stat. 589, is an act of congress within the judicial cognizance of the court, releasing about eighteen acres of this land to Maria C. Sypliax without consideration. Of course it cannot be contended that either this parcel, or the eight hundred and eighty-two acres which is directed to be considered as a military reservation, is in any but the nominal use of the government. Justice is figuratively thought to be blindfold; but it cannot be supposed that a court of justice sitting in Alexandria, in full view of this reservation, can by any reasonable fiction (the matter entering as an element in a question which it is called upon to decide) regard this military post, called Fort Whipple, as really occupied by the government for a military purpose. But there is what seems to me conclusive evidence that the government is not treating or using this reservation as a permanent acquisition of land for auy purpose. Section 355 of the Revised Statutes, forbids the acquisition of real estate by the government for any permanent military purpose until a perfect legal title and cession of state jurisdiction shall first have been obtained.' All reservations of military lands in the Western states are for a more or less temporary purpose. The term military reservation has come to be synonymous in that part of the Union with temporary reservation for military purposes. The requirements of section 355 are, I believe, never complied with in regard to those reservations, because they are deemed temporary properties of the government, temporarily used, and they are reserved from public domain acquired by the government by treaty, as a sovereign power. The requirements of that section have not been complied with in regard to the parcel in question of the Arlington estate embodying eight hundred and eighty-two acres. It is not now occupied by troops, and the fact that the requirements of section 355 have not been obeyed, nor the authority conferred on the president by section 183S, himself to obtain from the state a cession to the United States of its jurisdiction, has not been exercised, seems to prove that the government has and has had no real intention of occupying that property with troops. I therefore conclude that nine hundred acres of the Arlington estate are not in actual bona fide government use, and that the only practical uses to which it is devoted in fact are those enjoyed and exercised by the two hundred poor people who live on the premises gratuitously. I am not aware of any express law, and I doubt if there be any law, authorizing any of-fleer of the army of the United States in a time of peace to “set apart as a military post and reserve in connection therewith,” to be “considered as a military reservation,” any considerable tract of land in the old thirteen states, where there are no “public lands,” and where the government has no actually used military post, without a previous compliance with the requirements of section 355. In respect to this nine hundred acres, I think the pretension of the counsel for the government is unfounded, either that it is occupied by officers or agents of the.government; or that it is actually used by the government for any but nominal government purposes; or that the government has title in it in its sovereign capacity; even though it should be found to have such title in its merely corporate character.

In the foregoing inquiry I have unavoidably, to some extent, overstepped the showing of the record, but I have gone into an examination of the uses made by the government of this property, more in deference to the estimate of the importance of the matter expressed by counsel for the government, than from any opinion of my own that it can affect the decision of the cause. It will be seen in the end that the principles of law governing this decision apply as conclusively to the smaller portion of the estate, embracing the cemetery, as to the larger portion of the estate occupied by its miscellaneous throng of defendants. I return to the parcel of two hundred acres set off as a national cemetery; and I cannot but regret that the title of property so hallowed in the minds of patriotic people as that now under contemplation should have been left in such doubt as to fall under the cold, inexorable scrutiny of a court of law. If sections 4870-4872 of the Revised Statutes, be examined, it will be found that they contain specific directions as to the manner in which an exclusive title in the United States in lands intended as cemeteries shall be obtained, and the exclusive jurisdiction of the United States over them shall be secured. Their provisions have not been availed of in respect to the Arlington Cemetery. Nor has the requirement of section 355 been complied with, nor the authority conferred by section 1838 exercised. The title in this property is held by the United States merely as if it were an ordinary purchaser without the authority of a sovereign over it, or the prerogatives of a sovereign to protect it. The case of the cemetery tract differs from that of the reservation not at all in regard to the legal or political title, and only in the fact that it is actually used for a necessary, I will add sacred, public purpose. In regard to the whole Arlington estate, the title of the United States is in the condition alluded to by the chief law officer of the government, in 14 Op. Attys. Gen. 200, in a letter written to the secretary of the treasury, instructing him in these words: “In regard to lands owned by the United States, within the limits of a state over which the state has not parted with its jurisdiction, the United States stand in the relation of a proprietor, and the local officers have, in my opinion, the same right to enter upon such land, or into the buildings located there, and seize the personal property of individuals for non-payment of taxes thereon, as they have to enter upon the land or into the buildings of any other proprietor for the said purpose, it being understood in the former case that the right must be so exercised as not to interfere with the operations of the general government.” The tenure by which the United States holds the Arlington estate is described'by Vattel in a passage quoted by counsel of the government, wherein that writer says: “What is called the high domain, which is nothing but the domain of the body of the nation or of the sovereign who represents it, is everywhere considered as inseparable from' the sovereignty. The useful domain, or the domain confined to the rights that may belong to an individual in the state, may be separated from the sovereignty, and nothing prevents the possibility of its belonging to a nation in places that are not under her jurisdiction. Thus may sovereigns have fiefs and other possessions in the territories of another prince. In these eases they possess them in the manner of private individuals.” It was said by Judge Story in U. S. v. Cornell [Case No. 14,867]: “Although the United States may well purchase and hold lands for public purposes, within the territorial limits of a state, this does not of itself oust the jurisdiction of sovereignty of such state over the land so purchased. It remains until the state has relinquished its authority over the land, either expressly or by necessary implication.” In Com. v. Young, Brightly, N. P. 302, it was held that “the constitution of the United,States prescribes the only mode by which they can acquire land as a sovereign power, and therefore they hold only as an individual, when they obtain it in any other way.” To the same effect is the decision in the case of People v. Godfrey, 17 Johns. 225. In Renner v. Bennett, 21 Ohio St. 431 (decided in 1871), it was held that where the United States, without the consent of the state, purchases and uses land for any of the purposes specified in section 8, art. 1, of the federal constitution, it acquires no jurisdiction over the land. In the case of Com. v. Young, it was held that the sale, by public outcry, of lands of the United States over which the state jurisdiction had not been ceded, in violation of a state law requiring that lands should be so sold by an auctioneer commissioned by the governor, was invalid. It seems clear to me that the government holds the Arlington estate by private and not by sovereign tenure, and that it is holding only two hundred acres of it by an officer for a necessary public purpose. Therefore I think that the pretension of counsel for the government, that it holds the whole estate for actual public purposes by the hands of its officers, and by sovereign tenure, is quite inadmissible. The government acquired the land under authority of a loose law passed in 1803, when the times were much out of joint; but it does not hold it in observance of and compliance with the requirements of any law upon the statute-book prescribing the manner in which its title to and authority over the lands shall be secured and perfected.

I come now to consider the question whether the' government can be sued indirectly in the manner in which it is sued in this action for real property held as just described. I have brought to the investigation of this question an earnest solicitude to decide it aright, because, as must be known to every lawyer, on its decision the title of the government to Arlington, in all probability, depends. There stands in the background of this suggestion and demurrer the fact that the tax titles derived by purchasers at the tax sales made by Commissioners Hawxhurst, Watson and Foster have been overthrown and held void by the supreme court of the United States in the two cases of Bennett v. Hunter, 9 Wall. [76 U. S.] 326, and Tacey v. Irwin, 18 Wall. [85 U. S.] 549. Under these decisions as many as eighteen or twenty actions of ejectment have passed under the supervision of this court, in proceedings to which the defendants have not thought it worth while to make contest. An instance of one of these cases may be found in Lee v. Chase [Case No. 8,185]. Since the decision in Tacey v. Irwin no holder of land acquired from Hawxhurst, Watson and Foster has made defence until now; and it is known to the bar that there can no defence be made in this case except the one now under consideration, to wit, that the government is not amenable to suit in the indirect form employed in this action. . The commissioners who have been named adopted a rule not to receive the taxes due on property advertised for sale unless tendered by the owner in person. This rule was so rigidly enforced that neither friend, relation, nor agent was allowed to pay taxes due for the absent owner; their application to pay and save the property from sale being uniformly refused by the commissioners under the operation of the rule in question. In Bennett v. Hunter [supra] it was insisted, in support of the tax deed, that the right to pay the tax before sale was limited to the owner in person, and could not be exercised by the tenant in possession, who had offered to pay it. This position was not sustained by the court, which held that payment of the tax which the act requires to be made by the owner need not necessarily be made by him in person. It held that it was enough if it be made by any person for him; and this on the ground that an act done by one for the benefit of another is valid, if ratified either expressly or by implication, and that such ratification will be presumed in furtherance of justice, and the court held the tax sale to be void. In Tacey v. Irwin [supra] where there had been no tender of the tax by the owner or other person, the court said: “It is difficult to see how, upon the case as found here, the sale can be sustained. The law does not require the doing of a nugatory act. as would have been a formal tender of payment, after the action of the commissioners declining to receive the taxes from any person in behalf of the owner. Bennett v. Hunter decides that the owner has the right to pay either in person or through any one not disavowed by him who was willing to act for him. This right the commissioners, by the rule which they established and- the uniform practice under it, effectually denied.' The friends and agents of absent owners were informed that it was useless to interpose in their behalf, and unless the owner appeared in person and discharged the tax the property would be sold. This was equivalent to saying that a regular tender by any other person would be refused. While the law gave the owner the privilege of paying by the hands of another, the commissioners confined the privilege to a payment by the owner himself. This was wrong, and a denial of the opportunity to pay accorded to the owner by the act; and the lands were therefore not delinquent when they were sold. If an offer in a particular case, to pay the tax before sale, and refused by the commissioners because not made by the owner in person, rendered a subsequent sale by the commissioners void, surely a general rule announced by the commissioners that in all eases such an offer would be refused must produce the same effect. Such a rule of necessity dispenses with a regular tender in any case. In the absence of any proof to- the contrary, it is a legal presumption that the tax in this case, though not actually offered, would have been offered and paid before sale but for the known refusal of the commissioners to accept any offer when not made by the owner in person. If so, the commissioners were not authorized to make the sale in controversy, and the judgment must be affirmed.”

It is plain, therefore, in the light of these decisions of the supreme court of the United States, that the tenure of the government in the Arlington estate depends upon the success of its present endeavor to defeat a judicial trial of this cause upon its merits; and there can be no doubt but that the attorney-general was bound under the impulsion of a supreme duty to intervene by suggestion to test the jurisdiction of the court. The pivotal question on which the government’s title to Arlington must stand or fall is therefore the one which I am now to consider. Can the government be indirectly sued in this action? This suit is brought under the laws of Virginia. See Code 1873, c. 131, pp. 93S-963. It is a statutory action of ejectment. The ejectment law of Virginia is a copy of that of New York. Under it the action of ejectment may be brought to try the right of possession, serving thereby the purpose of the English action of ejectio firmae; and it may be brought to try the right of property, thereby standing in lieu of the English writ of right. The law of Virginia provides expressly that this statutory action of ejectment may be brought in the same cases in which the writ of right could before be brought. The present action is brought in a case in which the old English action of ejectment would not lie. It is brought by a remainderman after the termination of the life estate, where there was disseisin of the life tenant during the life estate. The right of entry had been lost, and the right of entry was necessary to the old action of ejectment. Under the statutory action given by the Virginia law no entry is necessary. None was necessary in these suits, process having been served by mere notice, and therefore there could not, in respect to these lands claimed by the government, be, as in England, either in fact or fiction an intrusion or possible collision with the king’s officers by entry. In all these respects it differs materially from the English action of ejectment of Blackstone’s day; and counsel for the government is mistaken in supposing with Tidd and Runnington that even the English ejectment was an action in rem, requiring seizure of property on mesne process. The English action of ejectment did not lie for one who had, like the plaintiff in this case, lost the right of entry. The right of entry was necessary to it, and entry, actual or theoretical, was the proper step for commencing it; but there was no seizure in limine as in actions in rem. The action of ejectment in England was, 1st. In its origin a mere personal action for damages. 2d. By degrees it became a mixed action to recover damages and estates for years. 3d. When it had begun to be used for the recovery of freehold estates it became a real action; for our ancestors in their high regard for freehold estates were not willing to divert the mind of the jury from the complicated questions of title to the consideration of the infinitely less important matter of damages. Thus ejectment was certainly in its origin no .proceeding in rem; in its subsequent use it could no more be called a proceeding in rem than any other real action, and it would now be no less absurd to consider it as such than it would be to take that view of detinue brought to recover a specific horse, or debt to recover a specific sum of money. 2 Brown, Civ. Law, 111; Percival v. Hickey, 18 Johns. 257; 2 Kent, Comm. 378; 4 Minor, Inst. 79 (lithograph). It was for the reason that the English action of ejectment required entry and dis-seisin as a means of commencing it, either actual or theoretical, that it did not lie against lands of the king; for it could not be commenced without intrusion upon the king’s possession. But the present action, as before said, though bearing the name of ejectment, is in effect equivalent to a writ of right, not requiring to be commenced by entry and disseisin, either in fact or fiction. The law of the local sovereignty in which this land lies gives to the citizen this right to try his right of property in lands by a proceeding which disturbs the possession and offends the dignity of no claimant whatever. It authorizes a suit to be instituted to try the title, by peaceful notice given to the actual occupants of the land, and leaves it entirely in the volition of the claimant, whoever he be, to appear or not as defendant in the suit. Section 5 of the law provides in terms that “if a lessee be made a defendant at the suit of a party claiming against the title of his landlord, such landlord may appear and be made a defendant with or in the place of the lessee,” If he chooses. Thus, in case the landlord be the government, the action may not only be commenced, but prosecuted to judgment, without any disturbance of the possession of the government, or “interference with its. operations,” or even service of mandatory process upon its officers. The action may be brought against the state of Virginia.

State of the Law in Respect to Suits for Personal Property.

But first, I will review those decisions which relate to personal property where it has been the subject of suit, or has been directly sued for, in proceedings to which the government of a state or of the United States was not directly, but was indirectly, defendant to the action. First, as to the leading case,—The Siren, 7 Wall. [74 U. S.] 152. The steamer Siren was captured in the harbor of Charleston by a naval vessel of the United States while in the act of violating the blockade of that port, and was lawfully a prize under the law of nations. She was brought into the port of Boston, and while on her way there committed a maritime tort by running into and sinking another vessel. Being lawful prize and property of the United States, she was libel-led by the government merely to obtain a judicial verification and certification of its title, and for a sale on its account, pursuant to certain provisions of law. While in the custody of the court, the owner of the sunken vessel intervened by petition, asserting a claim upon the Siren and the proceeds of her sale, for the damages he had sustained. The district court refused to grant the prayer of the petition on the ground that the Siren and the proceeds of her sale, being the property of the United States, were exempt from legal process at the suit of the inter-venor, because, to allow the intervention would be to allow the citizen to implead the government. But the supreme court of the United States reversed the district court and allowed the damages for the maritime tort claimed by the petitioner. The court stated (page 159) that the fact that the government was exempt from a direct proceeding in rem against the vessel while in its custody, was no ground for holding that it was exempt from the indirect proceeding. Yet this case is cited by counsel for the government in support of their proposition that the government can not be sued indirectly; and I understood the district attorney to express a. willingness to stake the fortunes of his cause in the present suit upon that decision. His confidence resulted from relying upon •expressions of the court, detached from the context, rather than upon the principle decided; for it is true, as the district attorney recited, that Mr. Justice Field, who delivered the judgment of the court, did make use, in the course of his decision, of this expression: “As justly observed by the learned (district) judge who tried this case, there is no distinction between suits against the government directly and suits against its property” — an expression the judicial import of which will appear in the sequel.

The Nature of Proceedings in Bern.

Before going further in this line of inquiry, let me examine the nature of an admiralty proceeding. Any one having a claim by maritime contract against a vessel afloat may file a libel (a little book) in a maritime court within whose jurisdiction the vessel may be, setting out his claim, and praying her arrest. Thereupon issues process in rem; that is, against the thing, the vessel by her name: the Mayflower, for instance; which is seized and brought into custody of the court, whereupon the owner of the vessel is allowed a day to answer. The res or vessel being thus in judicial custody, all other persons having claims against it by maritime contract are allowed to come in, by libel or petition, and submit them to the judgment of the court. And, by our law, under the forty-third rule in admiralty, any person who may have an interest in the proceeds of the sale of the ■seized vessel, whether by maritime or other •contract, may come in with like purpose. Thus it is apparent that a proceeding in admiralty presents the scene of a group of suits; •of suits in rem, suits against the thing, the vessel; in which the owner is indirectly defendant, and the several libellants and petitioners are independent and distinct actors or plaintiffs. Accordingly, if the government of-the United States be the owner of the libelled vessel, as it was in the case of The Siren [supra], the government is indirectly sued, not -only by one plaintiff, but possibly by half a •dozen plaintiffs. In The Siren Case, it had been decided below by the United States dis-trict court that there could be no intervention •by petition or libel against property belong-lng to the government; but, as before stated, It was there held by the supreme court, that such suit would lie; and decree was given in favor of the claimant for damages sustained by the collision. It will not do, therefore, from that decision, where the government was sued indirectly, and where its property was the direct subject of judicial proceeding, to quote any expression employed by the court as authority against the very jurisdiction which the court was in the act of exercising. Previously to this case, that is to say in 1865, had been decided, the leading case of The Light-Boats (by the supreme court of Massachusetts) 11 Allen, 157. That was, of course, not an admiralty suit. It was a statutory proceeding very similar in character to an admiralty suit, taken to enforce by attachment in rem a mechanics’ lien given by the state law. Certain boats intended to be used for floating lights on the Potomac during the Civil War had been built for the United States at New Bedford, Mass., by contract; the contractor had received the price, and they had been delivered to the govern-' ment, and were in the custody of the officers of the United States, with crew and provisions on board, awaiting their armament, but they were still at the builder’s wharf. It was while thus conditioned, and in custody of the government, that they were seized on attachment by a state officer. The petition alleged that the United States were the owners of the vessels, and prayed that notice should issue to the United States “that they appear and answer thereto.” The vessels were the lawful property of the United States; had been fully paid for, and were m their actual custody by voluntary delivery. After an exhaustive review of all then existing authorities on the subject, the supreme court of Massachusetts held that “after the vessels had once come into the possession of the United States, for public purposes, they were subject to the exclusive control of the executive government of the United States, and could not be interfered with by state process,” and that the attachment of them was illegal and void. But the court prefaced this judgment with ■ the following remarks: “The petitioners suffered the title to pass into the possession of the United States, before they took one step in the state courts to establish their lien. If they had filed their petitions and attached the vessels before they came into the possession of the United States, they might well have contended that the court of the commonwealth had acquired a jurisdiction of the case, which could not be divested until the object of the suit was accomplished. This process does not wait for final adjudication of the rights of the parties before it takes the property out of the hands of its owner and possessor; but assumes the custody at the very first stage of the proceedings.” This latter language was used by the court after having stated that the contractor had been paid by the government, by instalments, the contract price of the vessels, as the work progressed, and had been fully paid before the attachment had been levied. The language which it employed was used, therefore, in respect to property wholly owned by the government. The result of this decision is, that though government property may be seized under mesne process of the comí before it comes into the government’s custody, yet it cannot after-wards be thus dealt with when the process of the court originating the suit would wrest the property from the possession of the government’s officers. To the same effect was the decision of Judge Shipman in the case of The Thomas A. Scott, 10 Eng. Law T. (N. S.) 726, a public armed vessel libelled'during the war.

There are many cases in which it has been held that libels in admiralty, or attachments in rem on mesne process will not lie against property owned by the government, and we are driven to ascertain the principle which discriminates cases in which such proceeding will lie, from those in which It will not lie. That principle is distinctly set forth in the case of -The Davis, 10 Wall. 20; a case which is the more important from the fact that the opinion of the supreme court was delivered by Mr. Justice Miller; from its having been rendered on appeal from a decree of Mr. District Judge Shipman, who, I believe, had never before been reversed; and from its-having been rendered after the decision of the supreme court of Massachusetts in the leading case of The Light-Boats, to which I have already alluded. Let it be borne in mind that a proceeding in rem in admiralty courts, or by attachment in other courts, is commenced by the seizure of property into the custody of the court, and that execution is virtually had on mesne process, at the beginning of the suit. The principle decided in the case of The Davis [supra] was this: that an admiralty court may enforce a lien in a proceeding in rem against the personal property of the United States in any case where the marshal, in executing mesne process, does not interfere with any officer or agent of the United States; does not destroy the possession of the United States; does not, by putting the government out of possession, reduce it to the necessity of becoming plaintiff or actor in court to assert Its claim to the property. The government had shipped, in 1865, a quantity of cotton from Savannah to its agent in New York, on the schooner Davis. During its voyage the vessel and its cargo fell into the perils of the sea, and were saved from destniction by salvors; so that, afterwards, she came safely into her port of destination. The cotton (as well as the vessel) was at once regularly libelled by the salvors, as is usual in such cases, and was seized by the marshal of the court, of course, on mesne process. It was objected in the admiralty court that this was, in fact, a proceeding indirectly against government, the cotton being confessedly the property of the government. Mr. District Judge Shipman held, in the admiralty court, that the master of the schooner was, as to the cotton, the agent of the government; that the marshal's seizure of it was a dispossession of the government; and that, therefore, the libel could not lie as to the cotton. But the supreme court of the United States held otherwise. It held that the master of the schooner was a common carrier, and not a mere agent of the government, and that seizure of cotton while in his custody was not a dispossession of the government. It held that, though this was an indirect suit against the government, yet the court might properly proceed to’ adjudicate upon the lien of the salvors, and to decree out of the proceeds of the sale of the vessel the amount due to them. Mr. Justice Miller, in delivering the opinion of the court, makes the following observations, In which it will be seen that he explains the sentence which we have quoted from the decision in the case of The Siren. He says: “Perhaps the two most authoritative and well-considered cases on this subject are The Siren and Briggs v. The Light-Boats. Both of these decisions assert the doctrine, after full review of -the authorities, that such a lien cannot be enforced where, in order to do this successfully, it is necessary to bring suit against the United States, because the doctrine is well established that no suit can be sustained in which the United States is made an original defendant, to be brought into court by process, without some act of congress expressly authorizing it to be done. They also both assert the proposition that no suit in rem can be maintained against the property of the United States when it would be necessary to take such property out of the possession of the government by any writ or process of the court. There are some expressions in the opinion of this court in the case of The Siren which seem to imply that no suit in rem can be instituted against the property of the United States under any' circumstances. But a critical examination of the case and the reasoning of the court will show that that question was not involved in the suit, and that it was not intended to assert such a proposition without qualification. * * * The learned judge who delivered the opinion cites with approval the case of The Light-Boats, 11 Allen, 157, in which the doctrine is laid down, and well supported, that proceedings in rem to enforce a lien against property of the United States are only forbidden in cases where, in order to sustain the proceeding, the possession of the United States must be invaded under process of the court. With the principle as thus stated we agree, and do not see in it anything inconsistent with the case of The Siren.”

We have here a clear elimination of the principle of which we are in search. The learned judge did not qualify his language by confining his meaning to mesne process, but he was speaking of admiralty process, which is commenced by seizure of the res, and could have meant no other than mesne process. The cases of The Light-Boats and of The Davis have the greater significance because they carry the liberty of indirectly suing, the government farther than does the admiralty court of England. Without going into a review of the English cases of this class, I will state the result of such a review in the language employed by Judge Shipman in the case of The Davis (when it was before him), that in no case has the English court of admiralty attempted to deal adversely with the public property of the sovereign, except where there has been a voluntary appearance on its behalf, and submission of the case to the judgment of the court. Yet it is to be observed that England is notable for the absolute and unquestioning deference and subjection to law which characterizes her people and public officers in every department of society; and that the officers of the admiralty would not dare so to outrage public sentiment as to refuse to submit a right or claim of the government to the judgment of a proper court.

I will now pass from the review of those suits concerning personal property, which are commenced by a seizure of the res in contest, to those which are commenced by sendee of the ordinary mandatory process of the courts. The leading case in this class is the great one of Osborne v. Bank of U. S., 9 Wheat. [22 U. S.] 735. We have to do with this case only in its relation to the question whether a sovereign power may be indirectly sued. A state tax of some ¡5100,-000 had been assessed under a law of Ohio upon the branches of the Bank of the United States doing business in Ohio. A bill of injunction was filed in the circuit court of the United States, in apprehension of a levy for the tax, praying that the auditor, of the state, Osborne, might be enjoined from demanding or recovering the amount of the tax. The order of injunction was granted and served on one J. L. Harper, a state collector, “while on his way to Columbus with the money and funds on which the injunction was intended to'operate;” and on Osborne, before Harper reached Columbus. The amount in the hands of Harper was ¡598,000. This money was delivered by Harper to the state treasurer, and by him entered on his books to the credit of the state. Its identity was preserved • by its being placed in a separate package. It went aft-erwards into the custody of a committee of the state legislature, and was by it returned into the state treasury, where it remained during the pendency of the suit. Here was property claimed by the state as collected under its tax law, in the custody of its collector at the commencement of the suit, and in its possession as its own, by prima facie title, by deposit in its treasury standing to its credit on its treasury books. The suit was brought against Osborne, the auditor, and amended to embrace Harper, the collector, and Curry, the treasurer. It would not be possible to find a case where a state could be more positively sued in indirect form than was the state of Ohio in this case. It was only in the single particular that the state was not by name a party to the record that she was not sued. The supreme court ruled that this suit thus brought and maintained was one in which the United States court had jurisdiction. In an earnest and elaborate opinion Chief Justice Marshall spoke as- follows: “In a case where a state is a party on the record, the question of jurisdiction is decided by inspection. If jurisdiction depend not on this plain fact, but on the interest of the state, what rule has the constitution given by which this interest is to be measured? If no rule be given, is it to be settled by the court? If so, the curious anomaly is presented of a court examining the whole testimony of a cause, inquiring into and deciding on the extent of a state’s interest, without having a right to exercise any jurisdiction in the case. Can this inquiry be made without the existence of jurisdiction? The judicial power of the Union is also extended to controversies between citizens of different states; and it has been decided that the character of the parties must be shown on the record. Does this provision depend on the character of those whose interest is litigated, or of those who are parties in the record? In a suit, for example, brought by or against .an executor, the creditors or legatees of his testator are the persons really concerned in interest, but it has never been suspected that if the executor be a resident of another state, the jurisdiction of the federal courts could be ousted by the fact that the creditors or legatees were citizens of the same state with the opposite party. The universally received construction in this case is that jurisdiction is neither given nor ousted by the relative situation of the parties concerned in interest, but by the relative situation of the parties named on the record Why is this construction universal? Iso case can be imagined in which the existence of an interest out of tiie party on the record is more unequivocal than in that which has been just stated. Why, then, is it universally admitted that this interest in no manner affects the jurisdiction of the court? The plain and obvious answer is because the jurisdiction of the court depends, not upon this interest, but upon the actual party on the record.”

In U. S. Bank v. Planters’ Bank, 9 Wheat. [22 U. S.] 904, where a state was shareholder in the bank, and was indirectly a party defendant, Chief Justice Marshall said it was “a sound principle that where a government becomes a partner in any trading company, it divests itself, so far as concerns the transactions of that company, of its sovereign character, and takes that of a private citizen;” and in Briscoe v. Bank of I Commonwealth, 11 Pet. [36 U. S.] 257, ■where the state of Kentucky was the exclusive stockholder of a bank, and was the exclusive party sued, though sued nominally as a corporation, Mr. Justice ’McLean held that the state imparted none of its elements ■of sovereignty to the bank in creating it, and that the funds and property of the bank might be reached by the legal or equitable process of a court of justice. In Davis v. Gray, 16 Wall. [83 U. S.] 203, which was a Texas railroad case, the court said (Mr. Justice Swayne): “In deciding who are pax-ties to the suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind him as the real party in interest.” The case of Swasey v. North Carolina R. Co. [supra] was one of the same character. There certain .propeity of the state, in the form of railroad shares, was the subject of litigation, and I shall let Chief Justice Waite, who rendered the decision, state the objection to it ¿nd his answer: “It is insisted .by the defendant that the state of North Carolina is in fact a party defendant, and consequently that this court cannot entertain jurisdiction of the cause. The state, although directly interested in the subject-matter of the litigation, is not a party to the record. The eleventh amendment to the constitution of the United States, provides that no suit can be prosecuted in this court against a state by the citizens of another state, or by citizens or subjects of a foreign state. It has long been held, however, that this amendment applies only to suits in which a state is party to the record, and not those in which it has an interest merely. It is next urged that if the state is not actually a party to the suit, it is a necessary party in whose absence the cause cannot proceed, and that as a state cannot be brought into court, no relief should be granted upon the case made. If the state could be brought into court, it undoubtedly should be made a party before a decree is rendered, but since the case of Osborne v. Bank of U. S., 9 Wheat. [22 U. S.] 738, it has been the uniform practice of the courts of the United States tc take jurisdiction of causes affecting the property of a state in the hands of its agents, without making the state a party, where the property or the agent is within the jurisdiction. In such cases the courts act through the instrumentality of the property or the agent. The real question, therefore, to be determined is, whether the court has jurisdiction of the property which it is sought to charge, or of the agent having it in possession.”

I will here point out the fact, that the court maintained its jurisdiction in, and heard and determined each of the suits of, Osborne v. U. S. Bank and Swasey v. North Carolina R. Co. [supra], (to say nothing of the intermediate suits), notwithstanding that the effect of final process of execution would be, in one case, to invade the treasury of a state and to take from the hands of its officer property (money) claimed by the state as public property, and in the other case to invade the office of a corporation acting as agent of the state, for the .purpose of a compulsory transfer and sale of the state’s shares in its capital stock. I point out the fact in this place only for the purpose of showing passim that the “process” contemplated by Mr. Justice Miller, in hik .opinion in the case of The Davis, was only inesne process. And now I deduce this principle as the teaching of the leading cases which have just been reviewed, viz.: That government may be sued indirectly in regard to personal property in actions not attended by a seizure of the property out of its officers’ possession on mesne process, even though, in executing judgment on final pi-ocess, such seizure and dispossession would result If a court of justice, after a full hearing, decides that personal property, claimed by government by. title on which it has judicially passed, belongs to another, it will not presume that government will fail to deliver it to the rightful owner; and it is believed that in this country, as in England, final process for restitution would never be necessary. At all events a court will not be deterred from adjudicating such a cause by the presumption that the government will not make restitution without the indecent interposition of the coui-t’s writ of execution. But suits to test the title to pro'perty manifestly differ from those brought to recover a pecuniary debt, and it is conceded that no court but the court of claims has jurisdiction to render what Mr. Justice Miller calls “a moneyed judgment” against the United States. Case v. Terrill, 11 Wall. [78 U. S.] 199. Counsel for the government speak of the impatience with which the supreme coui-t expressed itself, of the decree which the court below (the United States circuit court for Louisiana) had rendered against the United States in this last case. The cause-of the judicial impatience was that a court should have rendered a judgment “against any one not made a party to the suit, and who had in no manner,” direct or indirect, “appeared in the case.” Here a moneyed judgment for more than $200,000 had been rendered against the United States, though not a party, direct or indirect, to the proceedings. But even where money is the subject of judicial proceeding, it is held that a court may proceed to the point of determining what amount Is due the government without regard to the fact that the power to order execution be not within its jurisdiction. U. S. v. Bank of Metropolis, 15 Pet [40 U. S.] 377; De Groot v. U. S. 5 Wall. [72 U. S.] 419; U. S. V. Eckford, 6 Wall. [73 U. S.] 484; and many other cases. In a case, for instance, where government Is plaintiff, and a set-off proved against it exceeds its own demand, the judgment is only that the defendant go without day. Reeside v. Walker, 11 How. [52 U. S.] 590. And “this for the reason that no officer in a republic, however high, not even the president of the United States, much less a secretary of the treasury, or treasurer, is generally empowered to pay debts of the United States when presented to him.” Suits for money debts stand on a different footing from suits respecting specific personal property claimed by government. But, we. repeat, that although a moneyed judgment cannot be rendered against the government except where authorized by law, the mere fact that it cannot be, does not of itself suffice to defeat the jurisdiction of a court to ascertain what is due the citizen.

This examination into decisions of the courts could be pursued until research degenerated into pedantry; and it is confidently believed that the result of a discriminating and candid reading of them all would be precisely that derived from the leading cases already cited, namely, that courts of justice may take cognizance of actions affecting the personal property of the government of a sovereign power whenever the service of mesne process before adjudication does not involve the seizure of the property out of the hands of its officers, even though the proceeding look to a judgment, final execution upon which, if issued, would dispossess the government. Before passing on to cases involving real property, I will mention the case of Cohens v. Virginia, 6 Wheat [19 U. S.] 264. There, I believe for the first time, arose the question whether a state, having prevailed below in a suit in which she was prosecutor by indictment, might be made defendant to an appellate proceeding for carrying the case up to the supreme court of the United States, in spite of amendment 11 of the federal constitution, forbidding suits against the states. It is hardly worth while to state that the proceeding was sustained by the supreme court.

I think now the way is cleared for an examination of the authorities which bear upon the precise question which we have in hand, namely, whether a statutory action of “ejectment,” which is used in this instance in lieu of the old English writ of right, lies to test the title in lands claimed by the United States all of which the government has in possession, and a part of which, at least, it has in actual use for a necessary public purpose, the United States being only indirectly a parts7. The chief reliance of counsel for the government in denying such jurisdiction is upon English cases; but it is useless to say more than I have done in demonstration of the fact, that no authorities indicating the state of the law in England on the question whether ejectment will lie to recover lands held by the crown, have any application in the present case. This is only in statutory name an action of ejectment, being really in technical effect a writ of right It was not necessary, in installing this suit, to make •entry and disseisin, or to feign to do so, on lands held by the sovereign power, as it would have been under the old practice in England. There was no intrusion, actual or fictitious, on the sovereign’s tenure in the ineipiency of the action, and the possession of the government remains as free from actual disturbance, and its dignity from actual or intentional iasult, as if there were no suit pending at all to test its right to hold these premises. There is no doubt of the fact, that in England ejectment will not lie to recover lands in possession of the crown. There are technical reasons for this fact which, though once founded in reason, are no longer so; and there are real reasons. One of the technical reasons is, that the possession of the crown, however wrongful, is exempt from intrusion by the entry and disseisin which were deemed necessary to the commencement of ejectment. Another is, that since Edward I., or at least since James L (Allen, Royal Prerog. 93), the practice established by the courts has required another remedy to be pursued, namely, the petition of right. So that now, in England the action of debt will no more lie where detinue ought to be brought, than ejectment where the practice requires the petition of right. The spirit of the English law, as well as the temper of the English constitution, require the suits against the soverign shall be in precatory rather than in mandatory form. But while the law and the constitution are thus far in accord, it must be confessed that there is a wide difference between the ideal king of the English lawyers, who is above law, and the real king of the British constitution, who is subject to law. He is represented in the law-books as an absolute sovereign; as, indeed, a supernatural being who never dies, who is present at one and the same time in every court of his dominions, who can neither do wrong.nor imagine evil, and who is incapable of any act of impropriety, folly, or weakness. In contemplation of the lawyers the king is not only everywhere in the courts, but at the same time commands the army and navy, bestows all honors and titles, represents the majesty of the whole community at home, conducts all correspondence and negotiations abroad, makes peace or war, and binds the kingdom by contract or treaty. In their minds he is a corporation sole, he is an artificial person that never dies, he cannot be summoned before an ecclesiastical or secular court, he cannot commit treason or felony, and cannot suffer punishment or corruption of blood, nor be imprisoned or outlawed. While such is the king recognized by those of us who have-studied the English law-books, those who have also studied English history know that the sovereign of the constitution is a very different character, of whom it is watchful and jealous, whom it often denounces, frequently prosecutes, sometimes deposes, and occasionally beheads. Of such a king as that of the English lawyers we have known nothing in America for one hundred years, and it is simply idle to cite, in American courts, precedents and authorities from English courts, which, after all, merely lay down the principle that suits against the crown must, for a thousand reasons founded in English sentiment, be in precatory and not in mandatory form. Nothing is more true than that in England, for reasons which have no existence or countenance in America, ejectment will not lie for lands in possession of the crown. And it is also the case, although it was not formerly so, that the writ of right, which is not originated by entry, but is commenced by mere praecipe, will not lie. The single, sufficient reason why neither ejectment nor writ of right will lie is, that a petition of right has become, in modern practice, the proper remedy in England for suits against the sovereign. See Sadler’s Case, 4 Coke, 55a; The Bankers, 14 How. State Tr. 28; Attorney-General v. Hallett, 15 Mees. & W. 106; Doe v. Roe, 8 Mees. & W. 579; Hovenden v. Lord Annesley, 2 Schoales & L. 617; and 1 Anstr. 215. The nature of this proceeding is nowhere more succinctly and fully explained than in 4 Minor, Inst. 667, as follows: “This is a proceeding in Chancery, originating at common law, it is said, under the auspices of Edward I. used where the king is in full possession of any hereditament or chattels, and the petitioner suggests such a right as controverts the title of the crown, grounded on facts disclosed in the petition itself, in which case he must be careful to state truly the whole title of the crown, otherwise the petition shall abate, and then upon this answer being indorsed on the petition of the king, soit droit fait al partie (let right be done to the party), a commission issues to inquire of the truth of this suggestion; after the return of which the king’s attorney is at liberty to plead at bar, or to demur, and the merits are then determined as in suits between subject and subject. And if the right be determined against the crown, the judgment is quod manus domi-ni regis amoveantur et possessio restituatur petenti salvo jure domini regis, whereby the crown isinstantly out of possession without the necessity for the indecent interposition of its own officers.” 3 Bl. Comm. 256, 257; Bac. Abr. Prerogative, E; 1 Th. Co. Litt. 308 et seq., and notes N, O; Baron de Bode’s Case, 8 Adol. & E. (N. S.; 55 E. C. L.) 208 (where the mode of proceeding is stated). In the Case of the Baron de Bode, it will be seen that the court exhibited a disposition to enlarge and extend the scope of the petition of right, rather than to narrow it. The truth is, that all the learning which is cited from the English reporters, showing that other remedies will not lie against the sovereign, and that petition of right must be resorted to, at the same time shows that the sovereign may be and is habitually sued in England in the form prescribed by English practice, so that it may be said, to the glory of England, that the words of John Selden and of the elder Pitt, which have been quoted, are true. In that country, probably more than any other pervaded with the spirit of obedience to law, fidelity to contracts, and reverence for the tribunals and instrumentalities of justice, there is a remedy open for every grievance. “Non reeedant querentes in curia regis sine remedio.” All that the injured person is required to look to is, that he seek his remedy, be it against the king or a private person, at the proper source; his remedy against the king being as open and free to him as against any other person. Mr. Broom, in his note to the Banker's Case (Constitutional Law, 241), has this just and lucid explanation of the subject of remedies in England: “The crown submits, as is abundantly proved by the cases already cited, to have its prerogatives openly discussed and investigated in courts of justice, and allows a remedy against itself for any infringement of the subject’s right, provided such remedy be sought where it can be had. The constitution of England, as remarked by Lord Holt (14 State Tr. 784), ‘has wisely distributed to several courts the determination of proper causes, but has left no subject in any case where he is injured without his adequate remedy, if he will go to the right place for it. If a man will seek for a remedy at common law for a legacy, it Is his own fault if he do not recover; as It would be if he should begin a suit for land in the court of admiralty, or go for equity in the common pleas.’ And so if the subject has cause of complaint against the crown, he must proceed for redress by that pathway which the constitution has laid down for him. Por an illegal invasion of his liberty he should proceed by habeas corpus; to obtain the revocation of a grant which injuriously affects him he should proceed by scire facias; for an illegal invasion of the right of property he should proceed by petition of right, speaking of which latter remedy Sir W. Blackstone (3 Comm. 255) tells us that the law has thus furnished the subject with a ‘decent and respectful’ mode of informing the king of a grievance, and soliciting redress. This mode of procedure is appropriate for inducing restitution by the crown of land or chattel property, of which it has through misinformation or inadvertence, wrongfully possessed itself.” It is apparent from these authorities that the crown in England may be sued, and that the petition of right is the remedy supplied by the English law for an aggrieved subject, by which he may have his claim against the crown judicially determined. I do not think, therefore, that the practice, or the legal authorities, in England can with any reason be adduced in support of the attitude held by the government in this cause. Nor is the view of counsel for government correct that the petition to congress here is the equivalent of the petition of right in England; for the petition to congress is a political remedy, whereas the pe>-tition of right is strictly judicial. The only equivalent here of the petition of right is the right given by statute to sue in the court of claims, a grant, however, which does not extend to such a claim as that of the plaintiff in the present action, Yet I will venture the opinion that the clause of the fifth amendment to the constitution, which forbids the taking of private property for public uses without just compensation,' proprio vigore gives jurisdiction to the courts of suits brought directly against the government for the recovery of property, where the complaint avers that the property was taken without just compensation.

For the present case, and those of its class, there is no jurisdiction specially derived from the express legislation of congress, just as there is probably no express law of congress authorizing by name the action of debt or trespass on the case; and this being an inferior court, we must needs look to the decisions of the supreme court of the United States for that judicial legislation which supplies in the present instance the only chart by which we may direct our course. I come, therefore, in conclusion to consider those cases decided by the supreme court of the United States, in which the government of a state or of the United States has been indirectly sued in respect to lands in its possession, whether held or not for public purposes. The leading case on the subject, and the first in point of time, is that of Meigs v. McClung, 9 Cranch [13 U. S.] 11. The land in dispute was occupied by the United States as a military garrison. In a treaty settling the boundary of the territory of the Indians, and extinguishing their title to the rest, in the now state of Tennessee, the government had reserved a right to put a garrison on the Indian portion, and to use a reserve of three miles square in connection with it, but it happened that the Indian land did not extend above the mouth of the Higliwassee river, and the government was unfortunate enough, through a mistake, to put its garrison above the mouth of the river on private property, and not below the river on Indian ground. An action of ejectment was brought and the process served on Meigs, the military officer of the United States in command at the garrison. The cause proceeded to judgment in the federal court below, and went up on writ of error to the supreme court of the United States. The cause was there heard, and Chief Justice Marshall delivered the unanimous opinion of the court in these words: “This court is unanimously and clearly of opinion that the circuit court committed no error in instructing the jury that the Indian title was extinguished in the land in controversy, and that the plaintiff below might sustain his action.” Though it was “objected and insisted that the action could not be maintained against them because the land was occupied by the United States troops, and the defendants as t officers of the United States for the benefit of the United States and by their direction,” yet it does not appear from Mr. Cranch’s report of the case that the question of jurisdiction was raised by plea in the court below. That point does not seem to have been relied upon by the government as a ground of error in the argument above. And so the counsel for the government in the present case, with that extraordinary and commendable diligence and alacrity which has characterized them throughout its progress, object that, as an appellate court does not consider any grounds of error but such as are relied upon in the record brought up to it, so the supreme court could not have considered this question of jurisdiction in the case of Meigs v. McClung [supra]. They cite Montgomery v. Hernandez, 12 Wheat. [25 U. S.] 130; Murdock v. Memphis, 20 Wall. [87 U. S.] 590; Venden v. Coleman, 1 Black [66 U. S.] 472; Webster v. Cooper, 10 How. [51 U. S.] 54; Brown v. Huger, 21 How. [62 U. S.] 305. But it seems to me that the question of jurisdiction is one which does not fall within the rule stated by counsel, or within the reason of the rule, and that the court below and the supreme court could not but have considered that question in the case under consideration. Whether or not the court had jurisdiction to try the title of the United States in property held as a garrison by officers and visible troops of the army, for a bona fide, patent, necessary public purpose, was, it seems to me, of the very essence of the case before the supreme court, and the language employed by the court in rendering its decision, that “the plaintiff below might sustain his action,” seems to imply that, whether the question of jurisdiction which the consent of counsel cannot affect was technically before it or not, it was distinctly and expressly passed upon by it. Here the judgment was against the government. Another case of ejectment, to recover Fort Dearborn, at Chicago, a possession of the government, occupied by its army officers, for the purpose of a military station, was that of Wilcox v. Jackson, 13 Pet. [38 U. S.] 498. The action was brought in a state court, and was proceeded in there to judgment. 1 Scam. 344. It was taken by writ- of error to the supreme court of the United States, and that court heard the cause and proceeded to judgment upon it. In that case the decision of the state court against the government was reversed, and a judgment for the government given by the supreme court. The judgment in each forum was upon the merits, and not upon the question of jurisdiction. The state court took jurisdiction upon the merits, and the supreme court reversed the state court upon the merits, taking no notice of the question of jurisdiction. Counsel for government in the present case adipit that the supreme court in that case “in deciding upon the law of the case decided the question of jurisdiction;” though they think that, as it was decided upon agreed facts, the question of jurisdiction was virtually waived. But can a merely implied .consent give jurisdiction in such a case? Consent of counsel does not give jurisdiction where jurisdiction is of the essence of the proceeding. Mordecal v. Lindsay, 19 How. [60 U. S.] 199; Montgomery v. Anderson, 21 How. [62 U. S.] 386; and Ballance v. Forsyth, Id. 389. In the case of Grisar v. McDowell, 6 Wall. [73 U. S.] 263, the plaintiff claimed as seized in fee the presidio of the old pueblo of San Francisco, then occupied by the United States, and brought his action indirectly against the United States, who set up that the property was public property of the United States reserved for military purposes. The defendant named was General McDowell, commanding the military post, and process was served on him. The circuit court entertained jurisdiction of the cause, and proceeded in it to judgment. It was thence carried to the supreme court of the United States, which proceeded in it to judgment. The report does not show that in either court the question of jurisdiction was expressly raised. But certainly they could not have considered that the mere fact of possession by the United States and use of the property for public purposes was sufficient to defeat their jurisdiction. They looked narrowly and diligently into the grounds of the title of the plaintiff and of the United States, and they each decided the case, on the relative strength of the two titles, in favor of the United States. The fact that the property was claimed by the United States, was in the possession of its officers, and in its actual necessary use for military purposes, intruded itself into the cause at every stage, and neither court deemed this fact sufficient to defeat its jurisdiction, and each proceeded to consider and decide the case on its merits.

I now come to the latest case which has been decided in the supreme court of the United States, in which the question now before this court was brought under review. This was the case of Cooley v. O’Connor, 12 Wall. [79 U. S.] 391. The action was ejectment It was brought to recover a lot of ground in the town of Beaufort, South Carolina, owned by the United States. Process or notice in ejectment was served on the occupants, who were tenants of the United States. It was a case in which the United States were sued indirectly, in ejectment for property claimed by government. The claim, as in the case now at bar, was founded on a tax-title obtained at a sale made durante bello by direct tax commissioners of the United States for delinquent taxes. The action of ejectment brought was the old one of trespass quare clausum fregit, with in-dorsement that “the action was brought' to try title as well as for damages.” It was the equivalent of Blackstone’s English action of ejectio firmae. It was a case to which the English authorities cited by counsel for government apply directly, and with which the English cases which they rely upon run on all fours. The government was using the lot of ground sued for, for public purposes, virtually as it is using the 882 a^ges of Arlington, those purposes being rather l imaginary than real. The defendants were one Cooley, one Judd, and others. Cooley was the tenant of a government lessee, and Judd a clerk of the United States for certain, Jn his view, important purposes. From the exceptions of the defendants set out in the record, the following is an extract: “And the defendants, to maintain and form the issue on their part, gave in evidence tending to show that Samuel A. Cooley was in possession of a portion of the premises in the plaintiff’s declaration mentioned, as a tenant of George Holmes, who had leased said portion of said premises from the United States direct tax commissioners at Beaufort, S. C.; that as such tenant he went into possession in June, 1867, and continued therein until about the 1st of December, 1868; that the said Henry G. Judd occupied a portion of said premises in the plaintiff’s declaration mentioned as clerk of the United States direct tax commissioners at Beaufort, and by their permission and direction; that he was in possession of said.premises from or about the 1st of June, 1867, until about the 1st day- of December, 1868; that said Cooley and Judd, defendants, had no other right, title, or interest in said premises, except as hereinbefore set forth, being mere tenants at will, in possession, and that they derived their right to possession from the United States direct tax commissioners at Beaufort, S. C., who acted and assumed to act for and on behalf of the United States of America.” Of this cause the circuit court below took jurisdiction, heard it on the merits, and proceeded to judgment. When carried up the supreme court did the same. The government had lost the case in the circuit court on an instruction to the jury. The supreme court found error in the instruction, and what did it do? Did it reverse the judgment below and order the lower court to dismiss for want of jurisdiction by reason that the United States was the only defendant in interest? It did not. Its order, as reported, was “Judgment reversed and venire de novo awarded.”

These decisions of the supreme court are supported by several cases decided in other courts of the highest authority. Mr. Justice Grier had held the same view as to the jurisdiction of a court in Elliott v. Van Voorst [Case No. 4,390]. In that case the government of the United States by some accident of business bad become tbe owner of the equity of redemption in some land in New Jersey, and a proceeding bad been taken by a mortgagee to foreclose his mortgage. It was necessary under the rules governing chancery suits to give notice of the proceeding to the United States, standing virtually in the shoes of the mortgagor, and Mr. Justice Grier, sitting in circuit court, held that, quoad hoc, the United States held as a private person and not as a sovereign, and might be served with notice of the proceeding just as any private mortgagor or holder of his equity of redemption might be served. In Dreux v. Kennedy, 12 Rob. (La.) 489 (decided in 1846) plaintiffs sued the defendants to recover lands in Louisiana alleged to be in their possession. The latter prayed for a dismissal, averring that the property was in the possession of the United States, a branch mint having been erected thereon; that they were merely officers of the mint and not in possession of the premises and had no authority to represent the United States. But it was held that the exception be overruled, the court saying; “Where the party in possession of land, when sued for it, points out the owner under whom he holds, he is bound to defend the action if such owner do not live within the state, or is not represented therein, or if such proprietor, lessor, or principal be the United States, against whom no direct action can be brought.”

In the case of French v. Bankhead, 11 Grat. 138, which was an action of ejectment, brought against the military officer in command at Fortress Monroe, Virginia, for the recovery of land of which the United States claimed to be owner, and occupied by him as such officer, and where the defendant was represented in the supreme court of appeals of Virginia — -the action having been brought in the state court and never removed to a federal court — by counsel, one of whom (Jones) was at the time United States district attorney, and where it was decided in favor of the defendant, upon the ground that the United States was entitled to the property in controversy; no objection to jurisdiction was made at any stage of the case. In Polack v. Mansfield, 44 Cal. 36, decided in 1872, after deciding that a mere servant or employé, who does not claim any interest in the premises, nor any right to their possession, and only in that manner occupies the premises, cannot be sued in an action to recover lands, the supreme court of California goes on further to decide: “That the rule which thus exempts the mere servant or em-ployé of another from an action presupposes that the employer may be sued, and that the wrongs of which the plaintiff complains may be redressed by resort to an action against the employer, as being the real party committing the ouster. In a ease, therefore, where the employer is for any reason not amenable to an action, the rule referred to has no application, and the employe or servant becomes ex necessitate the proper party defendant, since he is the only party who can be subjected to a suit at all. Were this otherwise, it would. result, that open and admitted violation of private right would find no redress in the courts of the country. The government of the United States as such cannot be sued as a party defendant in the courts of the state; and unless its servants and employés may be properly responsible for the lawless invasion of private property committed by them at the command of the government, the citizen is left wholly without the protection which it is the first aim and purpose of municipal law to afford."

There is but one other and very unimportant part of the case to be dealt with, and that is the intimation that in the event of the plaintiffs recovering in this action, the court would have no power to make good its judgment by final process. But the court will not imagine that its judgment would be resisted. That is a matter that must take care of itself. Mr. Justice Blair, in Chisholm v. State of Georgia, 2 Dall. [2 U. S.] 451, after alluding to this argument ab inutile and speaking of the jurisdiction of the court being questionable on the ground that congress had not provided any form of execution or pointed out any mode of making a Judgment against a state effectual, said: “Let us go on as far as we can, and if, at the end of the business, notwithstanding the powers given us in the 14th section of the judicial act, we meet difficulties insurmountable to us, we must leave it to those departments of government which have higher powers, to which, however, there may be no necessity to have recourse. Is it altogether a vain expectation that a state may have other motives than such as arise from the apprehension of coercion to carry into execution a judgment of the supreme court of the United States, though not conformable to its own ideas of justice?” To the same effect were the words of Mr. Justice Grier in the case of Elliott v. Van Voorst [supra], where, in meeting the objection that there was no precedent to be found for his assuming jurisdiction of a cause, judgment on which the process of the court might be inadequate to enforce, with that practical wisdom and downrightness of speech which characterized him he said: “It is time there was one.”

Is it possible, in the light of these cases, to hold, that the fact of the federal government being claimant by record-title or property which is made the subject of an indirect suit against it, in possession of the property, and in the actual use of it for public purposes, defeats the jurisdiction of a court to look into the grounds of its title and decide the action' upon the merits? Sitting here, in an inferior court, I am not at liberty so to hold, because to do so would be to overrule the supreme court in all the four cases of Meigs v. McClung, Wilcox v. Jackson, Grisar v. McDowell, and Cooley v. O’Connor [supra]. I have found it impracticable to make mention of each of the multitude of authorities which were cited in the argument of the cause. I have, however, examined them all, and think that I have adopted the teaching of most of them and done violence to that of none. In the fact that the case at bar is tne only one yet arising in which this especial question of jurisdiction has been raised at the outset of proceedings, and in which the fate of the government’s title has seemed to depend wholly upon this question, the present is a case of first impression. It is not to be denied that this cause is before the court in a form not heretofore known to American precedent; that is to say, it presents a case in which the sovereignty sued, comes into court, in the first incipiency of the proceeding, deigning to protest .its exemption from amenability to the action, but disdaining- to submit itself, as may have been done in the cases last cited, to the jurisdiction of the court. A case of such consequence will naturally ascend from this forum to the lofty and most profoundly revered tribunal of ultimate resort provided by the constitution of the United States. With firm judicial confidence I sustain the demurrer of the plaintiff in this cause, and direct that it shall proceed to trial on the issues raised by the plaintiff’s answer to the attorney-general’s suggestion. If, then, it shall go up to the supreme court, as I doubt not it will do, I shall console myself with the memorable reflection of Lord Nottingham, in the case of the Duke of.Norfolk: “I am not ashamed to have made this decision, nor will I be wounded if it should be reversed.”

[NOTE. This case was afterwards heard by the same court ucon instructions asked and refused, and was tried by a jury, and verdict given for the plaintiff. Case No. 8,192. Two writs of error were prosecuted, by the defendants and by the United States, eo nomine, to the supreme court, which affirmed the decision of the lower court 106 U. S. 196,1 Sup. Ct 240.]