United States v. Lee Kaufman/Dissent Gray
GRAY, J., dissenting.
The chief justice, Mr. Justice BRADLEY, Mr. Justice WOODS, and myself are unable to concur in the judgment of the majority of the court. The case so deeply affects the sovereignty of the United States, and its relations to the citizen, that it is fit to announce the grounds of our dissent.
The action is ejectment, originally brought by George W. P. C. Lee against Frederick Kaufman and Richard P. Strong in a court of the state of Virginia, to recover possession of a tract of land known as Arlington, of which the plaintiff alleged that he was seized in fee.
The whole tract, having been advertised for sale for non-payment of direct taxes lawfully assessed upon it, and having been selected for government use for war, military, charitable, and educational purposes by the president of the United States under the power conferred on him by the act of congress of February 6, 1863, c. 21, was accordingly in 1864 bid off to the United States at the sale; and for many years has been, and now is, held and occupied by the United States, through Kaufman and Strong in charge thereof, under the certificate of sale of the tax commissioners, and for the purposes aforesaid, and also under orders of the secretary of war, part of it for a military station, and the rest as a national cemetery for the burial of deceased soldiers and sailors. These facts were made to appear at three stages of the case: First. They were stated in a petition filed by Kaufman and Strong in the state court for the removal of the case into the circuit court of the United States under section 643 of the Revised Statutes, on the ground that the defendants were officers of the United States, and holding the land by title derived from officers of the United States acting under a revenue law of the United States, the validity of which was affected. That petition was granted, and the case removed accordingly. Second. They were stated in a suggestion and motion, filed by the attorney general in the circuit court of the United States before trial, protesting against the jurisdiction of the court, and moving for a stay of proceedings; which was demurred to by the plaintiff, and overruled by the court. Third. They were proved by the evidence produced by each party at the trial, and were assumed in the instructions given as well as in those requested. One of the instructions requested by the defendants was as follows:
'If the jury believe from the evidence that the United States is in the possession of the property in controversy, through its officers and agents charged with the control of the same; that the defendants occupy the same only as such officers and agents, in obedience to orders of the war department of the United States, and making no claim of right to the title or possession thereof, except as such officers; that the United States is using the same as a national cemetery for the burial of deceased soldiers, and as a fort and reserve connected therewith, claiming the title thereto under the certificate of sale proved in this cause; then the verdict must be for the defendants.'
The court refused this instruction, and gave the following:
'If the jury believe from the evidence that at the institution of this suit the premises in controversy were, or that any part thereof was, under the charge and in the occupation or possession of the defendants Strong and Kaufman, or either of them, under the direction of the government of the United States, or of any department or officer thereof, then such occupation or possession is sufficient to enable the plaintiff to maintain his action against them respectively for the premises so occupied or possessed by them respectively.'
The court submitted the case to the jury under further instructions, which permitted them to find for the plaintiff upon the ground that the certificate of sale for taxes was invalid as against him and had vested no legal title in the United States. The jury returned a verdict, upon which judgment was rendered, that the plaintiff recover possession of the premises, partly against Kaufman and partly against Strong. Writs of error were sued out by the United States, and by Kaufman and Strong, and the case has been argued upon both these writs of error.
This is not an action of trespass to recover damages only, nor is it an action to recover property violently and suddenly wrested from the owner by officers of the government without its directions and without color of title in the government, but it is brought to recover possession of land which the United States have for years held and still hold for military and other public purposes, claiming title under a certificate of sale for direct taxes, which is declared by the act of congress of June 7, 1862, c. 98, § 7, to be prima facie evidence of the regularity and validity of the sale and of the title of the purchaser, and which has been defined by this court as a 'public act which is the equivalent of office found.' Bennett v. Hunter, 9 Wall. 326, 336.
The principles upon which we are of opinion that the court below had no authority to try the question of the validity of the title of the United States in this action, and that this court has therefore no authority to pass upon that question, may be briefly stated: The sovereign is not liable to be sued in any judicial tribunal without its consent. The sovereign cannot hold property except by agents. To maintain an action for the recovery of possession of property held by the sovereign through its agents, not claiming any title or right in themselves, but only as the representatives of the sovereign and in its behalf, is to maintain an action to recover possession of the property against the sovereign; and to invade such possession of the agents, by execution or other judicial process, is to invade the possession of the sovereign, and to violate the fundamental maxim, that the sovereign cannot be sued. That maxim is not limited to a monarchy, but is of equal force in a republic. In the one, as in the other, it is essential to the common defense and general welfare, that the sovereign should not, without its consent, be dispossessed by judicial process of forts, arsenals, military posts, and ships of war necessary to guard the national existence against insurrection and invasion; of custom houses and revenue cutters, employed in the collection of the revenue; or of light-houses and light-ships, established for the security of commerce with foreign nations and among the different parts of the country. These principles appear to us to be axioms of public law, which would need no reference to authorities in their support, were it not for the exceeding importance and interest of the case, the great ability with which it has been argued, and the difference of opinion that has been manifested as to the extent and application of the precedents.
The exemption of the United States from being impleaded without their consent is, as has often been affirmed by this court, as absolute as that of the crown of England or any other sovereign. In Cohens v. Virginia, 6 Wheat. 264, 411, Chief Justice MARSHALL said: 'The universally-received opinion is that no suit can be commenced or prosecuted against the United States.' In Beers v. Arkansas, 20 How. 527, 529, Chief Justice TANEY said: 'It is an established principle of jurisprudence, in all civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission; but it may, if it thinks proper, waive this privilege, and permit itself to be made a defendant in a suit by individuals, or by another state. And as this permission is altogether voluntary on the part of the sovereignty, it follows that it may prescribe the terms and conditions on which it consents to be sued, and the manner in which the suit shall be conducted, and may withdraw its consent whenever it may suppose that justice to the public requires it.' In the same spirit, Mr. Justice DAVIS, delivering the judgment of the court in Nichols v. U.S. 7 Wall. 122, 126, said: 'Every government has an inherent right to protect itself against suits, and if, in the liberality of legislation they are permitted, it is only on such terms and conditions as are prescribed by statute. The principle is fundamental, applies to every sovereign power, and, but for the protection which it affords, the government would be unable to perform the various duties for which it was created.' See, also, U.S. v. Clarke, 8 Pet. 436, 444; Cary v. Curtis, 3 How. 236, 245, 256; U.S. v. McLemore, 4 How. 286, 289; Hill v. U.S. 9 How. 386, 389; Recside v. Walker, 11 How. 272, 290; De Groot v. U.S. 5 Wall. 419, 431; U.S. v. Eckford, 6 Wall. 484, 488; The Siren, 7 Wall. 152, 154; The Davis, 10 Wall. 15, 20; U.S. v. O'Keefe, 11 Wall. 178; Case v. Terrell, 11 Wall. 199, 201; Carr v. U.S. 98 U.S. 433, 437; U.S. v. Thompson, 98 U.S. 486, 489; Railroad Co. v. Tennessee, 101 U.S. 337; Railroad Co. v. Alabama, 101 U.S. 832.
The English authorities from the earliest to the latest times show that no action can be maintained to recover the title or possession of land held by the crown by its officers or servants, and leave no doubt that in a case like the one before us the proceedings would be stayed at the suggestion of the attorney general in behalf of the crown.
Our citations will be confined to the time since Magna Charta declared that no man should be taken or imprisoned, or be disseized of his freehold or liberties or free customs, or be outlawed or exiled, or in any way destroyed, or be passed upon or condemned, but by the lawful judgment of his peers, or by the law of the land-which is the origin of the provision, embodied in the fifth amendment of the constitution of the United States, that no man shall be deprived of life, liberty, or property without due process of law. The earliest authority to be referred to is Bracton, who wrote in the reign of Henry III., and who, in the famous passage of his first book, affirms that the king ought not to be subject to man, but to God and to the law, because the law makes the king; and therefore the king should ascribe to the law what the law ascribes to him, namely, dominion and power, for there is no king where reigns will and not law. Ipse autem rex non debet esse sub homine, sed sub Deo et sub lege, quia lex facit regem. Attribuat igitur rex legi, quod lex attribuit ei, videlicet, dominium et potestatem, non est enim rex, ubi dominatur voluntas et non lex. Bract. 5b. Yet no one states more strongly than Bracton the exemption of the king from being sued without his consent in such a case as this; for he says that one who has been disseized by the king, or by his bailiffs in his name, per dominum regem vel ballivos suos nomine suo, or, as he elsewhere says, whom the king, or any one in his behalf or in his name, aliquis pro eo vel nomine suo, has ejected, cannot, even if the disseizin be manifest, prosecute an assize to recover possession of the land without the king's consent, but must await his pleasure whether the assize shall proceed or not, expectanda erit voluntas domini regis quod procedat assisa vel non procedat. Bract. 168b, 171b, 212a.
Lord COKE tells us that before the statute of Westminster I. (3 Edw. I.) c. 24, if an officer of the king, by mere color of his office, and not by the king's command, disseized a man of his freehold, the only remedy was by petition to the king; and that it was to relieve against this evil that the statute enacted that no escheator, sheriff, or other bailiff of the king, 'by color of his office, without special warrant or commandment, or authority certain pertaining to his office,' should disseize any man of his freehold, and that, if he should do so, the disseizee might at his election proceed either by petition to the king, or by assize of novel disseizin at the common law, and the officer should pay double damages to the plaintiff, and a heavy fine to the king, for doing injury in his name to the subject. 2 Inst. 206, 207. But when the entry of the officer was by the king's command, though without authority of law, that statute had no application.
Accordingly in Staunford's Exposition of the King's Prerogative, c. 22, it is laid down: 'Petition is all the remedy the subject hath when the king seizeth his land, or taketh away his goods from him, having no title by order of his laws so to do, in which case the subject for his remedy is driven to sue unto his sovereign lord by way of petition; for other remedy hath he not.' Staunf. Prerog. fol. 72b. 'Also whereas the king doth enter upon me, having no title by matter of record or otherwise, and put me out, and detains the possession from me, that I cannot have it again by entry without suit, I have then no remedy but only by petition. But if I be suffered to enter, my entry is lawful, and no intrusion. Or if the king grant over the lands to a stranger, then is my petition determined, and I may now enter or have my assize by order of the common law against the said stranger, being the king's patentee.' 'When his highness seizeth by his absolute power contrary to the order of his laws, although I have no remedy against him for it, but by petition, for the dignity's sake of his person, yet when the cause is removed and a common person hath the possession, then is my assize revived, for now the patentee entereth by his own wrong and intrusion, and not by any title that the king giveth him, for the king had never title nor possession to give in that case.' Folio, 74b.
In the reign of Elizabeth, it was resolved by all the judges of England, that 'when the king was seized of any estate of inheritance or freehold by any matter of record, be his title by matter of record judicial or ministerial, or by conveyance of record, or by matter in fact and found by office of record, he who has right could not by the common law have any traverse upon which he was to have amoveas manum, but was put to his petition of right (in nature of his real action which he could not have against the king, because the king by his writ cannot command himself) to be restored to his freehold and inheritance;' unless indeed the right of the party aggrieved appeared by the same record, in which case he might by monstrans de droit obtain an amoveas manum. Sadlers' Case, 4 Rep. 54b, 55a.
Lord HALE enumerates, among the relative prerogatives of the crown, the prerogative 'of his possessions: that no man can enter upon him, but is driven to his suit by petition.' Hale, Anal. Law, § 9.
The law laid down in the early authorities is stated in the same way in the Digest of Chief Baron Comyns, written in the first half of the last century, and in Chitty on the Prerogatives of the Crown, published in 1820; and Mr. Chitty treats the action of ejectment as equivalent in this aspect to the ancient form of proceeding by assize. Comyn, Dig. 'Prerogative, D,' 78; Chit. Prerog. 339-343, and note c.
In The Queen v. Powell, 1 Q. B. 352; S.C.. 4 Perry & D. 719; a writ of mandamus to admit to a copyhold tenement of a manor belonging to the crown having been directed to the steward alone, it was contended for the prosecutor that a previous decision, requiring the writ to be directed to the lord of the manor as well as to the steward, applied only to cases where the lord of the manor was a subject, and that, inasmuch as there could be no mandamus to the sovereign, the writ must go against the steward alone. But Lord DENMAN, with the concurrence of Justices LITTLEDALE, WILLIAMS, and COLERIDGE, quashed the writ of mandamus; and, after observing that doubtless there could be no mandamus to the sovereign, but that the interests of the crown were to be as much guarded as those of the subject, said:
'And if the interests of the crown cannot so effectually be protected by a writ against the steward alone, it is a very strong reason to show that such a writ cannot be sustained. Indeed, if it were allowed, it is not certain of being effectual; for if the advisers of the crown were of opinion that its interests might be affected, and were to advise the sovereign either to order the steward not to admit the prosecutor of the mandamus, or to revoke the appointment of the steward, this court could not grant an attachment against the steward, and then the party does not get adimitted. And, indeed, if we were to allow a mandamus to the steward alone, and the writ were obeyed, the property of the crown would be affected indirectly by the mandamus to the steward alone, when it cannot be affected directly by making the sovereign a party to the mandamus.' 'But in the case where there is a complaint on the part of a subject against the crown in any matter whatever, the course is to proceed by petition of right, or else by monstrans de droit, or traverse of office, as the case may require. These proceedings have been recognized and acknowledged for many centuries. Such proceedings are now very much out of use, and few instances in modern times have occurred where they have been resorted to, but still they are what must be resorted to if any dispute arises. They are probably expensive and tedious; but these considerations are not sufficient for our dispensing with them. We have no more authority, for the sake of convenience, to lay them aside and introduce writs or other proceedings which are usually adopted between subject and subject, among which these writs of mandamus are to be reckoned, than to introduce writs and other proceedings, now solely used in cases of prerogative, in causes between subject and subject.'
In Queen v. Com'rs Treasury, L. R. 7 Q. B. 387, 394, in which the court refused to grant a writ of mandamus to the lords commissioners of the treasury to pay over money in their hands as servants of the crown, Lord Chief Justice COCKBURN said that it did not follow, because the prosecutor had no remedy except that of applying by petition to the crown, or by petition to parliament, that the court could issue a writ of mandamus, and added:
'I take it, with reference to that jurisdiction, we must start with this un questionable principle, that when a duty has to be performed (if I may use that expression) by the crown, this court cannot claim, even in appearance, to have any power to command the crown; the thing is out of the question. Over the sovereign we can have no power. In like manner where the parties are acting as servants of the crown, and are amenable to the crown, whose servants they are, they are not amenable to us in the exercise of our prerogative jurisdiction.' In Doe v. Roe, 8 Mees. & W. 579; S.C.. Hurl. & W. 159, which was an action of ejectment for a house and lands adjoining Hurst castle, the declaration had been served upon one Watson and upon the board of ordnance. On motion of the attorney general, in behalf of the crown, supported by affidavits that the castle was an hereditary possession of the crown of England, and that the premises sought to be recovered were in possession of the crown, by Watson, who had been placed, by authority of the board of ordnance, as master gunner in charge of the defenses of the castle, which commanded the passage of the Needles, the court of exchequer ordered the declaration to be set aside and all further proceedings stayed. It was contended for the plaintiff that technically the action was trespass against Roe; and that the argument on the other side would go the length of showing that in any case where the defendant in ejectment made an affidavit davit that the title of the crown came into question the plaintiff that the title of the crown of right. Whereupon the court made these observations: 'Lord ABINGER, C. B. The real question is, can an ejectment be tried, the effect of which may be to turn the crown out of possession? ALDERSON, B. The declaration is served on a person occupying as the servant of the crown; this case is not like the case put of lands held under the woods and forests; the present difficulty only arises when, supposing the plaintiff to succeed, the crown would be turned out of possession.' Hurl. & W. 160. At the close of the argument, Lord ABINGER said: 'It is quite clear the court could not issue any process to turn the crown out of possession; and the only doubt I had was, whether this property was not, by the operation of the act of parliament, in the possession, not of the crown, but of the board of ordnance. But on looking more fully into the act, my doubt is entirely removed.' Baron ALDERSON said: 'I am of the same opinion. No ejectment can be maintained against the crown, to turn the crown out of possession by the authority of the crown itself.' And Baron ROLFE (afterwards Lord Chancellor CRANWORTH) added: 'The question may be tested thus: Suppose there were no trial, but judgment went against the casual ejector, then there would only be a writ to turn the crown out of possession, which clearly cannot be.' 8 Mees. & W. 582-3.
The same rule, as well as the essential distinction in actions brought against a servant of the crown holding possession in behalf of the crown, between an action of trespass to recover damages, which might be suffered to proceed, (although the crown might have it removed for that purpose into the court of exchequer,) and an action of ejectment to recover possession of the land itself, which must be absolutely stayed on motion of the attorney general, is clearly recognized in two cases of trespass to recover damages against officers of the crown, removed upon application of the attorney general into the office of pleas of the exchequer for trial. Cawthorne v. Campbell, 1 Anstr. 205, 215; Attorney General v. Hallett, 15 Mees. & W. 97.
In Cawthorne v. Campbell, Chief Baron EYRE, speaking of a case, decided in 1710, of an ejectment brought in the court of queen's bench for lands which were part of the queen's estate, said:
'There was an application to this court to stay the proceedings, and the parties were heard upon it. The attorney general attended, and after the hearing it was put off for a day or two. At length the entry is, that an injunction issued pro domino regina. So that the action was not removed, but simply an injunction went to stay the proceedings. And I think I can see why that was; if the action had been removed, the question could not have been tried, even in the office of pleas, because you cannot try the queen's title in an ejectment. The queen was in possession; her hands must be removed by some other course of proceeding than an ejectment; and therefore it was fruitless to think of removing it, and it remained under an injunction.'
So in Attorney General v. Hallett, a case of trespass quare clausum fregit, in which the defendant pleaded that the queen was seized in right of her crown of the locus in quo, Chief Baron POLLOCK said:
'The action of ejectment is prima facie an action merely between subject and subject, and relates to land; yet the prerogative of the crown applies to that; and if the interest of the crown is concerned, an action of ejectment may be removed into this court. It may be said, however, that that does not amount to an authority, because the action does not go on; the reason of that is that in this court, an action of ejectment will not lie against the crown. The party must proceed by a petition of right. In an action of ejectment, we remove it, although we thereby actually extinguish the action; and therefore that is rather an a fortiori argument for removing this cause, which is sought to be removed for the express purpose of going on with it.'
Barons PARKE, ALDERSON, and PLATT concurred; and Baron PLATT clearly distinguished the case of a defendant holding possession in behalf of the crown, from that of a defendant claiming a right in himself only, though under a grant from the crown, saying:
'If the queen herself is in possession, no subject can maintain ejectment against her; the only mode of proceeding is by petition of right. If the subject is in possession, claiming a right under the crown, then the ejectment may be maintained; but, at the suggestion of the attorney general, the proceeding would be brought into this court.'
There is a close analogy between these cases and the case at bar. Any action, personal or real, against officers of the sovereign, who justify under a revenue law, may be removed in England into the court of exchequer, and under the acts of congress into the circuit court of the United States. If it is an action of tort to recover damages only, it may there proceed to trial. But if it is an action to recover possession of land, which is in fact held by the sovereign through its officers and agents, and that fact is in due form made known to the court, the proceedings must be stayed.
An action of ejectment brought, as this was, under the Code of Virginia of 1873, c. 131, affects the title to land more than the action of ejectment in England. By that Code the action may not only be brought as before, but it is also made a substitute for the writ of right and all other real actions. Sections 1, 2, 38. It must be brought by and in the name of a person having a subsisting interest in the premises, and a right to recover the premises or the possession thereof; and against the person actually occupying the premises, or, if they are not occupied, against some person exercising acts of ownership therein, or claiming title thereto or some interest therein. Sections 4-6. The only plea allowed is the general issue that the defendant is not guilty of unlawfully withholding the premises claimed. Section 13. The declaration must describe the premises with such certainty that from the description possession can be delivered; and it must state, and the verdict must find, whether the plaintiff's estate is in fee, or for life and whose life, or for years, and the duration of the term. Sections 8, 9, 27. Judgment for the plaintiff is that he recover the possession of the premises according to the verdict, if there is one, or, if on default or demurrer, according to the description in the declaration. Section 29. Several judgments may be recovered against several defendants occupying distinct parcels of the land. Section 17. And the judgment is conclusive as to the title or right of possession, established in the action, upon the party against whom it is rendered, and all persons claiming under him by title accruing after the commencement of the action. Section 35. The principle that no sovereign can be sued without its consent applies equally to foreign sovereigns and to the sovereign of the country in which the suit is brought. The exemption of the sovereign is not less regarded by its own courts than by the courts of other sovereigns. To repeat the words of Chief Justice TANEY, already quoted: 'It is an established principle of jurisprudence, in all civilized nations, that the sovereign cannot be sued in its own courts, or in any other, without its consent and permission.'
In the leading case of The Exchange, 7 Cranch, 116, the exemption of a foreign sovereign from being sued in our courts was held to protect one of his public armed vessels from being libeled here in a court of admiralty by citizens of the United States, to whom she had belonged, and from whom she had been forcibly taken in a foreign port by his order. The district attorney of the United States having filed a suggestion, verified by affidavit, that she was a public armed vessel of the emperor of the French, and actually employed in his service at the time of entering our ports, the circuit court, disregarding the suggestion, entered a decree for the libelants. But upon appeal taken by the attorney of the United States, this court, without any inquiry into the title, reversed the decree and dismissed the libel; and Chief Justice MARSHALL, in delivering judgment, said: 'There seems to be a necessity for admitting that the fact might be disclosed to the court by the suggestion of the attorney for the United States.'
In Vavasseur v. Krupp, 9 Ch. Div. 351, the mikado of Japan, a sovereign prince, bought in Germany shells, made there, but said to be infringements of an English patent. They were brought to England in order to be put on board a ship of war belonging to the mikado, and the patentee obtained an injunction against the agents of the mikado and the persons in whose custody the shells were, restraining them from removing the shells. The mikado then applied to be and was made a defendant in the suit. An order was made by Sir George Jessel, master of the rolls, and affirmed by the court of appeal, that notwithstanding the injunction the mikado should be at liberty to remove the shells. Lord Justice JAMES said: 'I am of opinion that this attempt on the part of the plaintiff to interfere with the right of a foreign sovereign to deal with his public property is one of the boldest I have ever heard of as made in any court in this country.' And, after stating the contention of the plaintiff that the shells were in the possession of persons in England who were minded to make and did make a use of them inconsistent with his patent, he further said: 'If they were doing so, then they are liable in an action for damages, and the plaintiff may recover any damages that he may be entitled to. But that does not interfere with the right of the sovereign of Japan, who now asks to be allowed to take his property.' Lord Justice BRETT said: 'The goods were the property of the mikado. They were his property as a sovereign; they were the property of his country; and therefore he is in the position of a foreign sovereign having property here.' 'If it is an infringement of the patent by the mikado, you cannot sue him for that infringement. If it is an infringement by the agents, you may sue the agents for that infringement, but then it is the agents whom you sue.' 'The mikado has a perfect right to have these goods; no court in this country can properly prevent him from having goods which are the public property of his own country.'
In the case of The Parlement Belge, 5 Prob. Div. 197, the court of appeal held that an unarmed packet, belonging to the king of the Belgians, and in the hands of officers commissioned by him, and employed in carrying mails, and also in carrying merchandise and passengers for hire, was not liable to be seized in a suit in rem to recover damages for a collision. Lord Justice BRETT, in a considered judgment, stated the real question to be 'whether every part of the public property of every sovereign authority in use for national purposes is not as much exempt from the jurisdiction of every court as is the person of every sovereign;' and, after reviewing many American as well as English cases, announced the conclusion of the court thus:
'As a consequence of the absolute independence of every sovereign authority, and of the international comity which induces every sovereign state to respect the independence of every other sovereign state, each and every one declines to exercise by means of any of its courts any of its territorial jurisdiction over the person of any sovereign or ambassador of any other state, or over the public property of any state which is destined to its public use, or over the property of any ambassador, though such sovereign, ambassador, or property be within its territory, and therefore, but for the common agreement, subject to its jurisdiction. This proposition would determine the first question in the present case in favor of the protest, even if an action in rem were held to be a proceeding solely against property, and not a procedure directly or indirectly impleading the owner of the property to answer to the judgment of the court. But we cannot allow it to be supposed that in our opinion the owner of the property is not indirectly impleaded.'
After stating the mode of procedure in courts of admiralty, he continued:
'To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded, any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court.'
It was argued at the bar that the petition of right in England was in effect a suit against the crown. But the petition of right could never be maintained except after an application to the king and his consented grant. The sovereign thus retained the power of determining in advance in every case whether it was consistent with the public interests to allow the suit to be brought and tried in the ordinary courts of justice. The petition might be presented either to the king in person, or in parliament; and if sued in parliament, it might be enacted and pass as an act of parliament. Staunf. Prerog. 72b; Chit. Prerog. 346. The old form of proceeding by petition of right to the king was so tedious and expensive that it fell into disuse; and there is hardly an instance in which it was resorted to in England between the settlement of the colonies and the declaration of independence, or for half a century afterwards. Clayton v. Attorney General, 1 Coop. temp. Cott. 97, 120; Queen v. Powell, 1 Q. B. 353, 363, and 4 Perry & D. 719, 723, above quoted; Canterbury v. Attorney General, 1 Phill. 306, 327; De Bode's Case, 8 Q. B. 208, 273. The granting of the royal consent as a matter of course is but of very modern introduction in England. Eastern Archipelago Co. v. Queen, 2 El. & Bl. 856, 914. And the statute of 23 and 24 Vict. c. 34, simplifying and regulating the proceedings, makes it the duty of the secretary of state for the home department to lay the petition before the queen for her consideration, and to give her his advice upon it; and if upon his advice she refuses to grant her fiat, the suppliant is without remedy. Irwin v. Grey, 3 Fost. & F. 635, 637; Tobin v. Queen, 14 C. B. (N. S.) 505, 521; 16 C. B. (N. S.) 310, 368.
In U.S. v. O'Keefe, 11 Wall. 178, 184, in which it was held that British subjects were included in the act of congress of July 27, 1868, c. 276, allowing suits for the proceeds of captured and abandoned property to be brought in the court of claims 'by aliens who are citizens or subjects of any government which accords to citizens of the United States the right to prosecute claims against such government in its courts,' this court, speaking of the English petition of right said: 'It is easy to see that cases might arise, involving political considerations, in which it would be eminently proper for the sover eign to withhold his permission.'
The English remedies of petition of right, monstrans de droit, and traverse of office, were never introduced into this country as a part of our common law; but in the American colonies and states claims upon the government were commonly made by petition to the legislature. The inadequacy or the want of those remedies is no reason for maintaining a suit against the sovereign, in a form which is usual between private citizens, but which has not been expressly granted to them as against the sovereign. Queen v. Powell, above quoted; Gibbons v. U.S. 8 Wall. 269.
In particular classes of cases, indeed, congress has authorized suits in equity to be brought against the United States; as, for instance, in cases of delinquent receivers of public money against whom a warrant of distress has been issued, in cases of proprietors of land taken and sold to make certain improvements in the city of Washington, (in which the bill is spoken of as 'in the nature of a petition of right,') and in claims to share in the money received from Mexico under the treaty of Guadalupe Hidalgo. See U.S. v. Nourse, 6 Pet. 470, and 9 Pet. 8; Murray v. Hoboken Land Co. 18 How. 272, 284; Van Ness v. Washington, 4 Pet. 232, 276, 277; Clark v. Clark, 17 How. 315, 320. So it has often authorized suits to be brought against the United States to confirm claims, under grants from foreign governments, to lands since ceded to the United States. But in such a suit Chief Justice MARSHALL said: 'As the United States are not suable of common right, the party who institutes such suit must bring his case within the authority of some act of congress, or the court cannot exercise jurisdiction over it.' U.S. v. Clarke, 8 Pet. 436, 444.
For more than 60 years after the adoption of the constitution no general provision was made by law for determining claims against the United States; and in every act concerning the court of claims congress has defined the classes of claims which might be made, the conditions on which they might be presented, the forms of proceeding, and the effect to be given to the awards. The act of February 24, 1855, c. 122, which first established that court, required an act of congress to carry out each award. The act of March 3, 1863, c. 92, which dispensed with that requirement, authorized the sums due by the judgments of the court of claims, after presentation of a copy thereof to the secretary of the treasury and his estimate of an appropriation therefor, to be paid out of any general appropriation made by law for the satisfaction of private claims. Even under this act the court of claims had so little of the nature of a judicial tribunal, that this court declined to entertain appeals from its decisions, although the statute expressly gave such an appeal. Gordon v. U.S. 2 Wall. 561; S.C.. 5 Amer. Law Reg. (N.S.) 111. It is only since the act of March 17, 1866, c. 19, has repealed the provision which by necessary implication authorized the secretary of the treasury to revise the decisions of the court of claims, and of this court on appeal, that this court has considered and determined such appeals.
Under the existing statutes the principal classes of demands submitted to the determination of the court of claims are claims founded on laws of congress, on regulations of the executive departments, and on contracts expressed or implied, and claims referred to the court by congress. Rev. St. § 1059. The proceeding by petition to congress and reference by congress to the court of claims presents the nearest analogy that our law affords to the petition of right. No act of congress has conferred upon that court, or upon any other tribunal, general jurisdiction of suits against the United States to recover possession of real property, or to redress a tort. And the act of congress of June 11, 1864, c. 117, (re-enacted in section 3753 of the Revised Statutes,) authorizing the secretary of the treasury to direct a stipulation, to the extent of the value of the interest of the United States, to be entered into for the discharge of any property owned or held by the United States, or in which the United States have or claim an interest, which has been seized or attached in any judicial proceeding under the laws of a state, expressly provides 'that nothing herein contained shall be considered as recognizing or conceding any right to enforce by seizure, arrest, attachment, or any judicial process, any claim against any property of the United States, or against any property held, owned, or employed by the United States, or by any department thereof, for any public use, or as waiving any objection to any proceeding instituted to enforce any such claim.' In Gibbons v. U.S. 8 Wall. 269, which was an attempt to maintain in the court of claims a suit against the government as upon an implied contract for unauthorized acts of its officers which were in themselves torts, the court said: 'The supposition that the government will not pay its debts, or will not do justice, is not to be indulged;' and, after stating the reasons against the maintenance of the suit, concluded:
'These reflections admonish us to be cautious that we do not permit the decisions of this court to become authority for the righting, in the court of claims, of all wrongs done to individuals by the officers of the general government, though they may have been committed while serving that government, and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, congress has wisely reserved the matter for its own determination.'
In Langford v. U.S. 101 U.S. 341, the remarks just quoted were repeated, and were applied to the case of a suit for the use and occupation of land which the United States, under a claim of title, had, through its Indian agents, taken posession of and since held by force and against the will of the rightful owner. If it is proper that the United States should allow themselves to be sued in such a case as this, public policy requires that it should rest with congress to define the mode of proceeding, the conditions on which it may be maintained, and the manner in which the decision shall be enforced-none of which can be done if the citizen has an absolute right to maintain the action. If the plaintiff is entitled to judgment, it can only be upon the ground that the United States are not a party to the record and have no such relation to the action that their possession of the land demanded will prevent judgment against the defendants of record. If those defendants alone are to be held to be parties or interested, the plaintiff is entitled, as of right, to immediate execution as well as to judgment; and the court has no discretion to stay an execution between private parties on considerations of the interests of the public. To maintain this action, independently of any legislation by congress, is to declare that the exemption of the United States from being impleaded without their consent does not embrace lands held by a disputed title; to defeat the exemption from judicial process in the very cases in which it is of the utmost importance to the public that it should be upheld; and to compel the United States to submit to the determination of courts and juries the validity of their title to any land held and used for military, naval, commercial, revenue, or police purposes.
The decision of this court and the reasoning of the several judges in the case of Chisholm v. Georgia, 2 Dall. 419, in which a majority of the court held that under the constitution, as originally adopted, a suit could be maintained in this court against a state by a citizen of another state, do not appear to us to furnish much aid in the determination of this case, for several reasons: First. Each of the judges who mentioned the subject declined to affirm that the United States could be sued. 2 Dall. 430, 469, 478. Second. The decision was based on a construction of the words of the constitution conferring jurisdiction of suits between 'a state and citizens of another state.' Third. That construction was set aside by the eleventh amendment of the constitution, which declares that 'the judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.' 2 Dall. 480, note; Hollingsworth v. Virginia, 3 Dall. 378.
In those cases in which judgments have since been rendered by this court against individuals concerning money or property in which a state had an interest, either the money was in the personal posession of the defendants and not in the possession of the state, or the suit was to restrain the defendants by injunction from doing acts in violation of the constitution of the United States. Within one or both of these classes fall the cases of U.S. v. Peters, 5 Cranch, 115; Osborn v. Bank of U.S. 9 Wheat. 738; Davis v. Gray, 16 Wall. 203; and Board of Liquidation v. McComb, 92 U.S. 531.
In U.S. v. Peters, 5 Cranch, 115, in which a writ of mandamus was ordered to a district court of the United States sitting in admiralty to issue an attachment against the executrixes of David Rittenhouse to enforce obedience to a decree of that court for the payment of money, (although Rittenhouse had been treasurer of the state of Pennsylvania, and the legislature of that state had directed its attorney general to sue the executrixes for the recovery of the money, and the governor to protect them against any process of the federal courts,) the judgment of this court, as stated by Chief Justice MARSHALL, went upon the ground that it was apparent that Rittenhouse held the money in his own right, and that '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 is 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 chief justice stated the conclusion of the court as follows:
'Since, then, the state of Pennsylvania had neither possession of, nor right to, the property on which the sentence of the district court was pronounced, and since the suit was neither commenced nor prosecuted against that state, there remains no pretext for the allegation that the case is within that amendment of the constitution which has been cited; and, consequently, the state of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.'
The chief justice thus carefully avoided expressing an opinion upon a case in which the money sued for was in the possession of the state, or 'the actual property of the state, however wrongfully acquired;' and his remark upon the effect of a mere suggestion of title in the state in a suit to recover 'property in possession of an individual'-as well as his similar remark in Osborn v. Bank of U.S. 9 Wheat. 738, 870, as to the effect of a suggestion of title in a foreign sovereign under like circumstances-can have no application where it is in due form pleaded or suggested, and satisfactorily proved or admitted, that the property is in the possession of the state or the sovereign, under claim and color of title, though that possession is necessarily held in its behalf by its officers or servants-as appears by his own judgment in the case of The Exchange, as well as by the cases in the court of exchequer before cited.
In Osborn v. Bank of U.S. 9 Wheat. 738, the bill was originally filed by the Bank of the United States against the auditor of the state of Ohio and a collector employed by him, to prevent them from levying a tax imposed by the legislature of that state in violation of the constitution of the United States upon the property of the bank; and they, after the service of the subpoena, forcibly took from the plaintiff's office the amount of the tax in money, and paid it over to the treasurer of the state, who received it with notice of these facts, and kept it apart from other money belonging to the state, so that, in the view taken by the court, it had never come into the possession of the state, but could have been recovered from the treasurer in an action of detinue. 9 Wheat. 833-836, 854, 858. By an amendment of the bill the treasurer was made a defendant. Such were the facts upon which the court, by one of Chief Justice MARSHALL's most elaborate judgments, in which the case was admitted to be one of great difficulty, ordered the defendants to restore the money, and held that the fact that the state was not, and could not be, without its consent, made a defendant, afforded no objection to granting such relief.
The dictum of the learned justice who delivered the opinion in Davis v. Gray, 16 Wall. 203, 220, that in Osborn v. Bank of U.S. it was decided that in cases in which a state is concerned 'that it cannot be made a party is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record,' overstates the decision in Osborn's Case; goes beyond what was required for the decision of Davis v. Gray, in which the object of the suit and the whole effect of the decree were to prevent the governor and the commissioner of the general land-office of the state of Texas from signing patents for lands of which the plaintiff had the title under a previous grant from the state; and, as the state cannot hold money or property otherwise than by its officers and agents, would, if understood as laying down a universal rule, practically nullify the eleventh amendment of the constitution.
In Board of Liquidation v. McComb, 92 U.S. 531, in which an injunction was granted to restrain the board of liquidation, consisting of the governor and other officers, of the state of Louisiana from issuing or using, in violation of a previous contract of the state with the plaintiff, bonds of the state in their hands, the court said that the objections to proceeding by injunction were-'First, that it is, in effect, proceeding against the state itself; and, secondly, that it interferes with the official discretion vested in the officers. It is conceded that neither of these things can be done. A state, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers in matters belonging to the proper jurisdiction of the latter.' And the ground upon which the bill in that case, as well as in the previous cases of Osborn v. Bank of U.S. and Davis v. Gray, was sustained, was defined to be, that when a plain official duty, requiring no exercise of discretion, is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it, notwithstanding the officer pleads the authority of an unconstitutional, and therefore void, law for the violation of his duty.
The case of The Governor v. Madrazo, 1 Pet. 110, does not appear to us to have any important bearing, except as tending to illustrate the distinction between the possession of the state by its agents, and the possession of the agents in their own right. The decision was, that where negro slaves were illegally taken from the owner on the high seas, and afterwards sold to a stranger, who, without the privity of the owner, imported them into the United States in violation of the act of congress of March 2, 1807, c. 22, and they were here seized by an officer of the customs of the United States, and delivered to an agent appointed by the governor of the state of Georgia, in conformity with the act of congress, and some of them sold by order of the governor of the state, and the money obtained at the sale was, in the words of Chief Justice MARSHALL, 'actually in the treasury of the state, mixed up with its general funds,' and the rest of the slaves remained in the hands of the agent of the state, 'in possession of the government,' a libel in admiralty by the owner to recover possession of the money and slaves, though not brought against the state by name, but against the governor in his official capacity, was a suit against the state, and therefore, by reason of the eleventh amendment of the constitution, could not be maintained. See, also, Ex parte Madrazzo, 7 Pet. 627.
In the case, on which the plaintiff principally relies, of Meigs v. McClung, 9 Cranch, 11, in which a circuit court of the United States, and this court on writ of error, gave judgment for the plaintiff in an action of ejectment for land held by the defendants as officers and under the authority of the United States, the full statement of their position in the bill of exceptions, on page 13 of the report, clearly shows that the fact that they so held the land was not set up in defense, except as supplemental to the position that the legal title to the land was in the United States; and it does not appear to have been mentioned in argument. No objection to the exercise of jurisdiction was made, by the defendants or by the United States, or noticed by the court. That the court understood the United States to desire a decision upon the merits is further apparent from Chief Justice MARSHALL's summary towards the close of the opinion: 'The land is certainly the property of the plaintiff below; and the United States cannot have intended to deprive him of it by violence and without compensation.' Had the decision covered the question of jurisdiction, the chief justice would hardly have omitted to refer to it in Osborn v. Bank of U.S. above stated.
In Wilcox v. Jackson, 13 Pet. 498; in Brown v. Huger, 21 How. 305; and in Grisar v. McDowell, 6 Wall. 363,-which were also actions of ejectment against officers of the United States,-the judgments were in favor of the defendants on the merits, no suggestion that the United States were so interested that the action could not be maintained was made by counsel or passed upon by this court, and that the court has not hitherto UNDERSTOOD ANY such question to be settled by any or all of those cases is clearly shown by its more recent judgments.
In the case of The Siren, 7 Wall. 152, the court said:
'It is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered, and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen, and consequently controlled in the use and disposition of the means required for the proper administration of the government. The exemption from direct suit is therefore without exception. This doctrine of the common law is equally applicable to the supreme authority of the nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such proceedings must bring his case within the authority of some act of congress. Such is the language of this court in U.S. v. Clarke, 8 Pet. 444. The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly, and suits against its property.'
In the case of The Davis, 10 Wall, 15, the court, stating the doctrine somewhat less broadly, yet affirmed the proposition, as clearly established by authority, 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;' and, in discussing the question, what constitutes a possession which protects the property from the process of the court, said:
'We are speaking now of a possession which can only be changed under process of the court by bringing the officer of the court into collision with the officer of the government, if the latter should choose to resist. The possession of the government can only exist through some of its officers, using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with its actual possession. This, we think, is a sufficiently liberal definition of the possession of the property by the government to prevent any unseemly conflict between the court and the other departments of the government, and which is consistent with the principle which exempts the government from suit and its possession from disturbance by virtue of judicial process.'
In The Siren, a claim for damages against a prize-ship for a collision on her way from the place of capture to the port of adjudication was allowed out of the proceeds of her sale upon condemnation, because the government was the actor in the suit to have her condemned. In The Davis, a claim was allowed for salvage of goods belonging to the United States in the hands of the master of a private vessel as a common carrier, because his possession was not the possession of the United States, and the United States could only obtain the goods by coming into court as claimant and actor. Each of those cases, as was pointed out in Case v. Terrell, 11 Wall. 199, 201, was decided upon the ground that 'the government came into court of its own volition to assert its claim to the property, and could only do so on condition of recognizing the superior rights of others.'
In Carr v. U.S. 98 U.S. 433, in which it was decided that judgments in ejectment against officers of the government, in possession in its behalf of lands held for a marine hospital, did not bind nor estop the United States, it was said, in the opinion of the court:
'We consider it to be a fundamental principle that the government cannot be sued except by its own consent; and certainly no state can pass a law, which would have any validity, for making the government suable in its courts. It is conceded in The Siren, 7 Wall. 152, and in The Davis, 10 Wall. 15, that without an act of congress no direct proceeding can be instituted against the government or its property. And in the latter case it is justly observed that 'the possession of the government can only exist through its officers; using that phrase in the sense of any person charged on behalf of the government with the control of the property, coupled with actual possession.' If a proceeding would lie against the officers as individuals in the case of a marine hospital,it might be instituted with equal facility and right in reference to a post-office or a custom-house, a prison or a fortification. In some cases (perhaps it was so in the present case) it might not be apparent, until after suit brought, that the possession attempted to be assailed was that of the government; but when this is made apparent by the pleadings or the proofs, the jurisdiction of the court ought to cease. Otherwise the government could always be compelled to come into court and litigate with private parties in defense of its property.'
The view on which this court appears to have constantly acted, which reconciles all its decisions, and is in accord with the English authorities, is this: The objection to the exercise of jurisdiction over the sovereign or his property, in an action in which he is not a party to the record, is in the nature of a personal objection, which, if not suggested by the sovereign, may be presumed not to be intended to be insisted upon. If ejectment is brought by one citizen against another, the court prima facie has jurisdiction of the subject-matter and of the parties, and, if no objection is interposed in behalf of the sovereign, proceeds to judgment between the parties before it. If the property is in the possession of the defendants and not of the sovereign, an informal suggestion that it belongs to the sovereign will not defeat the action. But if the sovereign, in proper form and by sufficient proof, makes known to the court that he insists upon his exemption from suit, and that the property sued for is held by the nominal defendants exclusively for him and on his behalf as public property, the right of the plaintiff to prosecute the suit and the authority of the court to exercise jurisdiction over it cease, and all further proceedings must be stayed.
In the case at bar the United States interposed in the most solemn and appropriate manner. The attorney general, before the trial, following the course approved by this court in the case of The Exchange, and by the court of exchequer in the case of Doe v. Roe, and other cases, already referred to, filed a suggestion and motion in writing, in which, appearing only for this purpose, he states that the land has been for more than 10 years and still is held, occupied, and possessed by the United States, through their 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, known as the Arlington Cemetery, and for war, military, charitable, and educational purposes, as set forth in the certificate of sale of the land for non-payment of direct taxes lawfully assessed thereon, a copy of which is annexed to the suggestion. Wherefore, without submitting the rights of the government of the United States to the jurisdiction of the court, but insisting that the court has no jurisdiction of the subject in controversy, he moves that the declaration may be set aside, and all the proceedings be stayed and dismissed, and for such other order as may be proper. The plaintiff, by demurring to this suggestion, admitted the truth of the facts stated by the attorney general.
After these facts had been thus formally brought to the notice of the court by the chief law officer of the United States, and had been admitted by the plaintiff, we are of opinion that the court had no authority to proceed to trial and judgment; because the suit, which had been commenced against the individual defendants, was thenceforth prosecuted against the United States; because in ejectment, as in other actions at law, a court has no authority to render a judgment on which it has no power to issue execution; because, as was directly adjudged in Carr v. U.S. 98 U.S. 433, above cited, no judgment against the defendants can bind or estop the United States; because the possession of the defendants is in fact and in law the possession of the United States, and the defendants may at any moment be displaced and removed by the executive, and other custodians appointed and installed in their stead; because to issue an execution against them would be to issue an execution against the United States, and to turn the United States out of possession of land held by the United States, under claim of title and color of right for public purposes; and because to maintain a suit which has that object and that result is to violate the fundamental principle that the sovereign cannot be sued without its consent, and to encroach upon the powers intrusted by the constitution to the legislative and executive departments of the government.
The court having no authority to proceed with the suit, the judgment afterwards rendered for the plaintiff was erroneous. The United States, having the right to interpose, and having interposed in due form, had an equal right to sue out a writ of error to make their interposition effectual. This is plainly shown by the case of The Exchange, 7 Cranch, 120, 147, before cited. It follows, that upon the writ of error sued out by the United States the judgment below should be reversed, and the case remanded with directions to set aside the verdict and to dismiss the action.
As to Kaufman and Strong, the court erred in compelling them to proceed to trial after the interposition of the United States; and in declining to instruct the jury, as they requested, that if the United States, through their officers and agents charged with the control of the same, were in the possession of the property in controversy, using it as a national cemetery for the burial of deceased soldiers, and as a fort and military reservation, claiming title under the certificate of sale proved in the case, and the defendants occupied the same only as such officers and agents, in obedience to orders of the war department of the United States, and making no claim of right to the title or possession except as such officers, the verdict must be for the defendants. Judgment of reversal should therefore also be entered upon the writ of error sued out by them.
Being of opinion, for the reasons above set forth, that the question of the validity of the title, under which the United States, through their officers and agents, hold the land, cannot be tried and determined in this action, we of course express no opinion upon that branch of the case.