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December 4, 1882


The opinion of the court was delivered by: Miller, J.

Solicitor General Phillips and W. Willoughby, for plaintiff in error.

S. F. Beach, Leigh R. Paige, Wm. J. Robertson, Francis L. Smith, and W. D. Shipman, for defendant in error.

These are two writs of error to the same judgment, one prosecuted by the United States, eo nomine, and the other by the attorney general of the United States in the names of Frederick Kaufman and Richard. P. Strong, the defendants against whom judgment was rendered in the circuit court. The action was originally commenced in the circuit court for the county of Alexandria, in the state of Virginia, by the present defendant in error, against Kaufman and Strong and a great number of others, in the names of the real parties under which the pleadings to recover possession of a parcel of land of about 1,100 acres, known as the Arlington estate. It was an action of ejectment in the form prescribed by the statutes of Virginia, under which the pleadings are in the names of the real parties plaintiff and defendant. As soon as the declaration was filed in that court the case was removed into the circuit court of the United States by writ of certiorari, where all the subsequent proceedings took place. It was tried by a jury, and during the progress of the trial an order was made, at the request of the plaintiff, dismissing the suit as to all of the defendants except Kaufman and Strong. Against each of these a judgment was rendered for separate parcels of the land in controversy, namely, against Kaufman for about 200 acres of it, constituting the national cemetery and included within its walls, and against Strong for the remainder of the tract, except 17 acres in the possession of Maria Syphax. As the United States was not a party to the suit below, and, while defending the action by its proper law officers, expressly declined to submit itself as a defendant to the jurisdiction of the court, there may exist some doubt whether it has a right to prosecute the writ of error in its own name; but as the judgment against Kaufman and Strong is here on their writ of error, and as under that writ all the questions are raised which can be raised under the other, their writ being prosecuted in the interest of the United States, and argued here by the solicitor general, the point is immaterial, and the question has not been mooted. The first step taken in the case, after it came into the circuit court of the United States, was the filing in the clerk's office of that court of the following paper by the attorney general: 'George W. C. Lee v. Frederick Kaufman, R. P. Strong, and others. (In ejectment.)

'And now comes the attorney general of the United States and suggests to the court and gives it to understand and be informed (appearing only for the purpose of this motion) that the property in controversy in this suit has been for more than 10 years and now is held, occupied, and possessed by the United States, through its officers and agents, charged in behalf of the government of the United States with the control of the property, and who are in the actual possession thereof, as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers, as a military station, and as a national cemetery established for the burial of deceased soldiers and sailors, and known and designated as the 'Arlington Cemetery,' and for the uses and purposes set forth in the certificate of sale, a copy of which, as stated and prepared by the plaintiff, and which is a true copy thereof, is annexed hereto and filed herewith, under claim of title, as appears by the said certificate of sale, and which was executed, delivered, and recorded as therein appears.

'Wherefore, without submitting the rights of the government of the United States to the jurisdiction of the court, but respectfully insisting that the court has no jurisdiction of the subject in controversy, he moves that the declaration in said suit be set aside, and all the proceedings be stayed and dismissed, and for such other order as may be proper in the premises.

'CHAS. DEVENS, Atty. Gen. U. S.'

The plaintiff demurred to this suggestion, and, on hearing, the demurrer was sustained. The case was thereupon tried before a jury on the general issue pleaded by defendants Kaufman and Strong, in the course of which the question raised by this suggestion of the attorney general was again presented to the court by prayers for instruction, which were rejected and exceptions taken.

The plaintiff offered evidence establishing title in himself by the will of his grandfather, George Washington Parke Curtis, who devised the Arlington estate to his daughter, the wife of Gen. Robert E. Lee, for life, and after her death to the plaintiff. This, with the long possession under that title, made a prima facie right of recovery in plaintiff. The title relied on by defendants was a tax-sale certificate made by the commissioners appointed under the act of congress of June 7, 1862, 'for the collection of direct taxes in the insurrectionary districts within the United States,' as amended by the act of February 6, 1863. At this sale the land was bid in by said commissioners for the United States, and a certificate of that fact was given by these commissioners and introduced on the trial as evidence by defendants. If this sale was a valid sale, and the certificate conveyed a valid title, then the title of plaintiff was thereby divested, and he could not recover. If the proceedings evidenced by the tax sale did not transfer the title of the property to the United States, then it remained in the plaintiff, and, so far as the question of title was concerned, his recovery was a rightful one.

We have then two questions presented to the court and jury below, and the same questions arise in this court on the record: (1) Could any action be maintained against the defendants for the possession of the land in controversy under the circumstances of the relation of that possession to the United States, however clear the legal right to that possession might be in plaintiff? (2) If such an action could be maintained, was the prima facie title of plaintiff divested by the tax sale and the certificate given by the commissioners? It is believed that no division of opinion exists among the members of this court on the proposition that the rulings of law under which the latter question was submitted by the court to the jury was sound, and that the jury were authorized to find, as they evidently did find, that the tax certificate and the sale which it recited did not divest the plaintiff of his title to the property.

For this reason we will consider first the assignment of errors on that subject. No substantial objection is seen on the face of the certificate to its validity, and none has been seriously urged. It was admitted in evidence by the court, and, unless impeached by extrinsic evidence offered by the plaintiff, it defeated his title. When this tax sale was made the act of February 6, 1863, which amended the original act of June 7, 1862, by substituting a new section 7 for that of the former, was in force. It declares that the certificate of the commissioners given to the purchaser at such sale 'shall be received in all courts and places as prima facie evidence of the regularity and validity of said sale, and of the title of the said purchaser or purchasers under the same;' and that it 'shall only be affected as evidence of the regularity and validity of sale by establishing the fact that said property was not subject to taxes, or that the taxes had been paid previous to sale, or that the property had been redeemed according to the provisions of this act.' It is in reference to the clause which permits the certificate to be impeached by showing that the taxes had been paid previous to sale that the plaintiff in the present case introduced evidence. This court has in a series of cases established the proposition that where the commissioners refused to receive such taxes, their action in thus preventing payment was the equivalent of payment in its effect upon the certificate of sale. Bennett v. Hunter, 9 Wall. 326; Tacey v. Irwin, 18 Wall. 549; Atwood v. Weems, 99 U. S. 183. There are exceptions to the ruling of the court on the admission of evidence, and instructions to the jury given and refused on this subject, which are made the foundation of several assignments of error.

All that is necessary to be considered in this matter is presented in the instructions granted and refused. The point in issue is fairly raised by the following, given at the request of plaintiff, and against the objection of defendants:

'If the jury believe from the evidence that the commissioners, prior to January 11, 1864, established, announced, and uniformly followed a general rule, under which they refused to receive on property which had been advertised for sale from any one but the owner, or a party in interest, in person, when offered, the amount chargeable upon said property by virtue of the said acts of congress, then said rule dispensed with the necessity of a tender, and in the absence of proof to the contrary the law presumes that said amount would have been paid, and the court instructs the jury that, upon such a state of facts, the sale of the property in controversy, made on the eleventh day of January, 1864, was unauthorized, and conferred no title on the purchaser;' and by instructions six and seven, given at the request of defendants, in the following language:

'6. The burden of proof is upon the plaintiff to establish the fact that the tax commissioners, before the sale of this property, made a general rule not to receive taxes except from the owner in person after the advertisement and before the sale; and if the jury believe that only two such instances occurred before the sale of this property, and if there is no evidence that the other two commissioners, or either of them, ever acted under such rule or practice, except Commissioner Hawxhurst, or that they or either of them ever concurred in such action before the sale of this property, then the said two instances in which Mr. Hawxhurst alone acted do not establish the said practice by the board of commissioners before the sale of this property in a sufficient manner to render the certificate of sale of this property invalid.

'7. In order to establish a general practice or rule of the board of commissioners not to receive taxes except from the owner in person, after advertisement and before sale,–before the date of the sale of the property in controversy,–the jury must find from evidence produced on this trial that a majority of such board adopted such practice or rule, or concurred therein, before the date of the sale of this property, and, in the absence of proof to the contrary, the law presumes that a majority of such board did not adopt such practice or rule, or concur therein before such date.'

We think these presented correctly to the jury the principle established by the cases in this court above referred to; that is, that the commissioners themselves, having established and acted upon a rule that payment of the taxes after advertisement would be received from no one but the owner of the land appearing in person to pay them,–that if offered by his tenant, his agent, or his attorney in fact duly appointed, it would be rejected,–it would be an idle ceremony for any of these to make the offer; and an actual tender by such persons, as it would certainly not be accepted, need not be made. That the commissioners, having in the execution of the law acted upon a rule which deprived the owner of the land of an important right,–a right which went to the root of the matter, a right which has in no instance known to us, or cited by counsel, been refused to a tax-payer,–the sale made under such circumstances is invalid, as much so as if the tax had been actually paid or tendered. The proposition is thus expressed by this court at its last term in the case of Hills v. Albany Exchange Bank,*fn1 * as the result of the cases above cited: 'It is a general rule that when the tender or performence of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused.'

The application of these decisions to the case before us is denied by counsel on two grounds. The first of these is that the case of Bennett v. Hunter was decided on the language of the act of 1862, and that due attention was not given to the peculiar language of the substituted section 7 of the act of 1863, which says that 'when the owner of the land shall not on or before the day of sale appear in person before said board of commissioners and pay the amount of the tax, with 10 per centum interest thereon, with the costs of advertising the same, or request the same to be struck off to a purchaser for a less sum than two-thirds of the assessed value of said several lots or parcels of ground, the said commissioners shall be authorized at said sale to bid off the same for the United States at a sum not exceeding two-thirds of the assessed value thereof.' It is argued from this that no right to pay the tax under this statute existed except by the owner in person.

The reply to this is that in the cases of Bennett v. Hunter and Tacey v. Irwin, the sales that were under consideration are clearly shown by the reports to have been made after the act of 1863, and it is believed that no sale for taxes was made under the original tax law until after that amendment was passed, and that all the officers charged with the duty of collecting that tax were aware of the language of the new seventh section. It is quite apparent from the opinion of Chief Justice CHASE, who spoke for the court in the case of Bennett v. Hunter, and who was secretary of the treasury when both statutes were enacted, that he understood well that he was deciding the very question raised by the requirement to appear in person in the latter act, and intended to decide that, notwithstanding this, the owner had a right to pay the tax before sale by an agent or a friend. Besides, there was no other provision of either the act of 1862 or the amendment of 1863 which gave the owner the right to pay at all between the advertisement and the sale. The third section of the original act gave the right to pay for 60 days after the tax commissioners had fixed the amount of the tax, and no longer; and the seventh section of that act, as well as its substitute of 1863, gave the right to redeem after the sale was made.

It is clear, therefore, that Bennett v. Hunter, Tacey v. Irwin, and Atwood v. Weems were decisions construing the substituted seventh section of 1863.

In the case of Turner v. Smith, 14 Wall. 553, this court, in construing the change in the language of the seventh section, held that its object was to authorize the United States, by its commissioner, to bid more than the tax and costs, which they could not do before, and to limit them to two-thirds of its value, and that after the amount of costs and tax had been bid the United States should not bid against a purchaser named by the owner. It was probably in reference to this that the act required the personal presence of the owner before the commissioners to name a purchaser against whom the United States should not compete after it was secured by a bid which covered the tax, interest, and costs.

The other point raised is, that the right to pay the taxes between the advertisement and day of sale in any other mode than by personal appearance of the owner before the commissioners, did not exist in cases where the United States became the purchaser. As it could never be known until the day of sale whether the United States would become the purchaser or not, it would seem that the duty of the commissioners to receive the taxes was to be exercised without reference to the possibility of the land being struck off to the United States.

In the case of Cooley v. O'Connor, 12 Wall. 391, it was held that the act contemplated that a certificate of sale should be given when the United States became the purchaser, as in other cases, and no reason is shown why that certificate should have any greater effect as evidence of title than in the case of a private purchaser, nor why it should not be subject to the same rules in determining its validity, nor why the payment or tender of the tax, interest, and costs, should not be made by an agent in the one case as in the other. It is proper to observe that there was evidence, uncontradicted, to show that Mr. Fendall appeared before the commissioners in due time and offered on the part of Mrs. Lee, in whom the title then was, to pay the taxes, interest, and costs, and was told that the commissioners could receive the money from no one but the owner of the land in person. In all this matter we do not see any error in the rulings of the court, nor any reason to doubt that the jury were justified in finding that the United States acquired no title under tax-sale proceedings. In approaching the other question which we are called on to decide, it is proper to make a clear statement of what it is.

The counsel for plaintiffs in error, and in behalf of the United States, assert the proposition, that though it has been ascertained by the verdict of the jury, in which no error is found, that the plaintiff has the title to the land in controversy, and that what is set up in behalf of the United States is no title at all, the court can render no judgment in favor of the plaintiff against the defendants in the action, because the latter hold the property as officers and agents of the United States, and it is appropriated to lawful public uses. This proposition rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents for the government. The first branch of this proposition is conceded to be the established law of this country and of this court at the present day; the second, as a necessary or proper deduction from the first, is denied.

In order to decide whether the inference is justified from what is conceded, it is necessary to ascertain, if we can, on what principle the exemption of the United States from a suit by one of its citizens is founded, and what limitations surround this exemption. In this, as in most other cases of like character, it will be found that the doctrine is derived from the laws and practices of our English ancestors; and while it is beyond question that from the time of Edward the First until now the king of England was not suable in the courts of that country, except where his consent had been given on petition of right, it is a matter of great uncertainty whether prior to that time he was not suable in his own courts and in his kingly character as other persons were. We have the authority of Chief Baron COMYN, 1 Dig. 132, 'Action, C 1,' and 6 Dig. 67, 'Prerogative;' and of the Mirror of Justices, c. 1, § 3, and c. 5, § 1, that such was the law; and of BRACTON and Lord HOLT, that the king never was suable of common right. It is certain, however, that after the establishment of the petition of right about that time, as the appropriate manner of seeking relief where the ascertainment of the parties' rights required a suit against the king, no attempt has been made to sue the king in any court except as allowed on such petition. It is believed that this petition of right, as it has been practiced and observed in the administration of justice in England, has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the king among themselves.

'If the mode of proceeding to enforce it be formal and ceremonious, it is, nevertheless, a practical and efficient remedy for the invasion by the sovereign power of individual rights.' U.S. v. O'Keefe, 11 Wall. 178.

There is in this country, however, no such thing as the petition of right, as there is no such thing as a kingly head to the nation, or to any of the states which compose it. There is vested in no officer or body the authority to consent that the state shall be sued except in the law-making power, which may give such consent on the terms it may choose to impose. The Davis, 10 Wall. 15. Congress has created a court in which it has authorized suits to be brought against the United States, but has limited such suits to those arising on contract, with a few unimportant exceptions.

What were the reasons which forbid that the king should be sued in his own court, and how do these reasons apply to the political body corporate which we call the United States of America? As regards the king, one reason given by the old judges was the absurdity of the king's sending a writ to himself to command the king to appear in the king's court. No such reason exists in our government, as process runs in the name of the president and may be served on the attorney general, as was done in the case of Chisholm v. State of Georgia.*fn2 ** Nor can it be said that the dignity of the government is degraded by appearing as a defendant in the courts of its own creation, because it is constantly appearing as a party in such courts, and submitting its rights as against the citizens to their judgment.

Mr. Justice GRAY, of the supreme court of Massachusetts, in an able and learned opinion which exhausts the sources of information on this subject, says: 'The broader reason is that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money in his treasury.' Briggs v. The Light Boats, 11 Allen, 162. As we have no person in this government who exercises supreme executive power or performs the public duties of a sovereign, it is difficult to see on what solid foundation of principle the exemption from liability to suit rests. It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists, that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself from assaults in those courts.

It is obvious that in our system of jurisprudence, the principle is as applicable to each of the states as it is to the United States, except in those cases where by the constitution a state of the Union may be sued in this court. Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, Id. 832.

That the doctrine met with a doubtful reception in the early history of this court may be seen from the opinions of two of its justices in the case of Chisholm v. State of Georgia, where Mr. Justice WILSON, a member of the convention which framed our constitution, after a learned examination of the laws of England and other states and kingdoms, sums up the result by saying: 'We see nothing against, but much in favor of, the jurisdiction of this court over the state of Georgia, a party to this cause.' 2 Dall. 461. Chief Justice JAY also considered the question as affected by the difference between a republican state like ours, and a personal sovereign, and held that there is no reason why a state should not be sued, though doubting whether the United States would be subject to the same rule. 2 Dall. 78.

The first recognition of the general doctrine by this court is to be found in the case of Cohens v. Virginia, 6 Wheat. 380.

The terms in which Chief Justice MARSHALL there gives assent to the principle does not add much to its force. 'The counsel for the defendant,' he says, 'has laid down the general proposition that a sovereign independent state is not suable except by its own consent.' This general proposition, he adds, will not be controverted. And while the exemption of the United States and of the several states from being subjected as defendants to ordinary actions in the courts has since that time been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine. U. S. v. Clarke, 8 Pet. 436; Same v. McLemore 4 How. 286; Hill v. U. S. 9 How. 386; Nations v. Johnson, 24 How. 195; The Siren, 7 Wall. 152; The Davis, 10 Wall. 15. On the other hadn, while acceding to the general proposition that in no court can the United States be sued directly by original process as a defendant, there is abundant evidence in the decisions of this court that the doctrine, if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit.

But little weight can be given to the decisions of the English courts on this branch of the subject, for two reasons: (1) In all cases where the title to property came into controversy between the crown and a subject, whether held in right of the person who was king or as representative of the nation, the petition of right presented a judicial remedy–a remedy which this court, on full examination in a case which required it, held to be practical and efficient. There has been, therefore, no necessity for suing the officers or servants of the king who held possession of such property, when the issue could be made with the king himself as defendant. (2) Another reason of much greater weight is found in the vast difference in the essential character of the two governments as regards the source and the depositaries of power.

Notwithstanding the progress which has been made since the days of the Stuarts in stripping the crown of its powers and prerogatives, it remains true to-day that the monarch is looked upon with too much reverence to be subjected to the demands of the law as ordinary persons are, and the king-loving nation would be shocked at the spectacle of their queen being turned out of her pleasure garden by a writ of ejectment against the gardener. The crown remains the fountain of honor, and the surroundings which give dignity and majesty to its possessor are cherished and enforced all the more strictly because of the loss of real power in the government. It is not to be expected, therefore, that the courts will permit their process to disturb the possession of the crown by acting on its officers or agents.

Under our system the people, who are there called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right.

Another class of cases in the English courts, in which attempts have been made to subject the public ships and other property of foreign and independent nations found within English territory to their jurisdiction, is also inapplicable to this case; for, both by the English courts and ours, it has been uniformly held that these were questions, the decisions of which, as they might involve war or peace, must be primarily dealt with by those departments of the government which had the power to adjust them by negotiation, or to enforce the rights of the citizen by war. In such cases the judicial department of this government follows the action of the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction. Such were the cases of The Exchange, 7 Cranch, 116; Luther v. Borden, 7 How. 42; State of Georgia, v. Stanton, 6 Wall. 75.

The earliest case in this court in which the true rule is laid down, and which, bearing a close analogy to the one before us, seems decisive of it, is that of the U. S. v. Peters, 5 Cranch, 115. In an admiralty proceeding commenced before the formation of the constitution, and which afterwards came into the district court of the United States for Pennsylvania, that court, after full hearing, had decided that the libelants were entitled to the proceeds of the sale of a vessel condemned as prize of war, which had come to the possession of David Rittenhouse, as treasurer of the state of Pennsylvania. The district judge had declined to issue any process to enforce his decree against the representatives of Rittenhouse, on the ground that the funds were held as the property of that state, and that as the state could not be subjected to judicial process, neither could the officer who held the money in her right. The analogy to the case before us will be seen when it is further stated that the examination of the case and the decree of the court had passed upon this claim of the state to the money, which had been fully presented, and had decided that the libelants and not the state were legally entitled to it. In that case, as in this, it was argued that the suit was in reality against the state. But on an application for a writ of mandamus to compel the judge of the district court to proceed in the execution of his decree, it was granted. In delivering the opinion, MARSHALL, C. J., says: 'The stare cannot be made a defendant to a suit brought by an individual, but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one state against citizens of a different state, when a state is not necessarily a defendant. In this case the suit was not instituted against the state or its treasurer, but against the executrixes of David Rittenhouse for the proceeds of a vessel condemned in the court of admiralty, which were admitted to be in their possession. If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion; but 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.'

The case before us is a suit against Strong and Kaufman, as individuals, to recover possession of property. The suggestion was made that it was the property of the United States, and that the court, without inquiring into the truth of this suggestion, should proceed no further; and in this case, as in that, after a judicial inquiry had made it clear that the property belonged to plaintiff and not to the United States, we are still asked to forbid the court below to proceed further, and to reverse and set aside what it has done, and thus refuse to perform the duty of deciding suits properly brought before us by citizens of the United States.

It may be said, in fact it is said, that the present case differs from the one in 5 Cranch, because the officers who are sued assert no personal possession, but are holding as the mere agents of the United States, while the executors of Rittenhouse held the money until a better right was established. But the very next case in this court of a similar character (Meigs v. McClung's Lessee, 9 Cranch, 11) shows that this distinction was not recognized as sound. The property sued for in that case was land on which the United States had a garrison erected at a cost of $30,000, and the defendants were the military officers in possession, and the very question now in issue was raised by these officers, who, according to the bill of exceptions, insisted that the action could not be maintained against them, 'because the land was occupied by the United States troops, and the defendants as officers of the United States, for the benefit of the United States, and by their direction.' They further insisted, says the bill of exceptions, that the United States had a right by the constitution to appropriate the property of the individual citizen. The court below overruled these objections, and held that the title being in plaintiff he might recover, and that 'if the land was private property the United States could not have intended to deprive the individual of it without making him compensation therefor.' Although the judgment of the circuit court was in favor of the plaintiff, and its result was to turn the soldiers and officers out of possession and deliver it to plaintiff, Chief Justice MARSHALL concludes his opinion in this emphatic language: '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 to the land in controversy, and that the plaintiff below might sustain his action.' We are unable to discover any difference whatever in regard to the objection we are now considering between this case and the one before us. Impressed by the force of this argument, counsel say that the question of the objection arising out of the possession of the United States was not considered in that case because it was not urged in argument by counsel. But it is manifest that it was so set out in the bill of exceptions, and so much relied on in the court below that it could not have escaped the attention of the court and of the eminent man who had only six years before delivered the opinion in the case of the U. S. v. Peters. Nor could the case have been decided as it was if the doctrine now contended for be sound, since the effect of the judgment was to dispossess the United States of an occupied garrison by the judgment against the officers in charge of it.

In the case of Wilcox v. Jackson, 13 Pet. 498, the contest was over a fort of the United States which had been in its continued possession for over 30 years, and was so occupied when the suit was brought against its officers to dispossess them. The case came from the supreme court of Illinois to this court on writ of error, and the judgment in favor of the plaintiff was reversed. The question now under consideration was not passed upon directly by this court. But a long examination of the question whether the plaintiff had proved title in himself, and a decision that while the state courts of Illinois held a certificate of purchase from the United States to be a legal title under her statute, that statute was invalid, might all have been avoided by the simple declaration that the United States, being in possession of the property as a fort, no action at law against its officers could be maintained. But no such proposition was advanced by counsel on either side, or considered by the court. There is a very satisfactory reason for this. The cases of U. S. v. Peters, of Meigs v. McClung, and of Osborn v. United States Bank, had all involved the same question, and in the first and last of these cases the principle was fully discussed, and in the other necessarily decided in the negative. And in the case of Georgia v. Madrazo, 1 Pet. 110, the court had referred to these cases, and again asserted the principle, quoting the language of them. Counsel were not justified in asking the court to reconsider it while most of the judges were still on the bench, including the chief justice, who had made those decisions.

The case of Osborn v. United States Bank, 9 Wheat. 738, is a leading case, remarkable in many respects, and in none more than in those resembling the one before us. The case was this: The state of Ohio having levied a tax upon the branch of the Bank of the United States located in that state, which the bank refused to pay, Osborn, auditor of the state of Ohio, was about to proceed to collect said tax by a seizure of the money of the bank in its vaults, and an amended bill alleged that he had so seized $100,000, and while aware that an injunction had been issued by the circuit court of the United States on the prayer of the bank, the money so seized had been delivered to the treasurer of the state, Curry, and afterwards came to the possession of Sullivan, who had succeeded Curry as treasurer. Both Curry and Sullivan were made defendants as well as Osborn and his assistant, Harper.

One of the objections pressed with pertinacity all through the case to the jurisdiction of the court was the conceded fact that the state of Ohio, though not made a defendant to the bill, was the real party in interest. That all the parties sued were her officers, her auditor, her treasurer, and their agents concerning acts done in their official character, and in obedience to her laws. It was conceded that the state could not be sued, and it was earnestly argued there as here, that what could not be done directly could not be done by suing her officers. And it was insisted that while the state could not be brought before the court, it was a necessary party to the relief sought, namely, the return of the money and obedience to the injunction, and that the bill must be dismissed. A few citations from the opinion of MARSHALL, C. J., will show the views entertained by the court on the question thus raised. At page 842 of the long report of the case he says:

'If the state of Ohio could have been made a party defendant, it can scarcely be denied that this would be a strong case for an injunction. The objection is that, as the real party cannot be brought before the court, a suit cannot be sustained against the agents of that party; and cases have been cited to show that a court of chancery will not make a decree unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best ...

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