The Anderson intelligencer. [volume] (Anderson Court House, S.C.) 1860-1914, 1878-03-21

law questions arising in the case as it
stands upon the record. The Court held
that the suggestion did not itself defeat
the jurisdiction, but that the court might
look into the record to discover the
grounds of the Governments title and of
its right 10 intervene. Accordingly the
court proceeded to inquire whether the
Government held the estate in its soyer-
eign or in private character, and in the
latter event whether it held the estate for
public purposes. The cession of the
State Jurisdiction was never obtained,
not even from the Alexandria govern
ment. No provision of law looking to
establishing the sovereign jurisdiction of
the United States over Arlington has
ever been complied with, and the court
showed from Vattel, Story, the attorney
generals opinions, and many other au-
thorities, that the Government held Ar
lington By private tenure. Inquiring
into the purposes for which the estate is
held, it appeared that only 200 acres of
the estate, which contains LOO acres,
are used for IN apparently public pur-
pose, that is the sacred purpose of a
National cemetery; the rest being only
in the nominal use of the Government,
being actually occupied by some two
hundred poor people, who would seem
from the record to pay no rent.
The Judge then proceeds to examine
whether sovereign power can be sued
indirectly, in respect to property held
either by sovereign or private tenure.
He shows that in proceedings.in rem. this
can be done in this country, whenever in
the service of mesne process; the posses
sion is not wrested from the government,
and that though in England in admi-
rality causes the consent of the govern
ment is required to be obtained, yet that
consent is generally given as matter of
course. He shows that in other suits re-
specting personal property the United
States Supreme Court has in many cases,
beginning with Osborne VS.. the United
States Bank, ruled that suit may proceed
whenever The sovereign is not defen.
dant named in the record. Proceeding
to such CASES as concern land, the Judge
shows that the decision of the English
courts, which hold that ejectments will
not lie against the crown, are not appli-
cable in this country; that the present
action is in the nature of writ of right,
and is only ejectment in name, under
the State law, and that the English de.
cisions in holding that ejectment will moi
lie, but that petition of right will lie
really prove that the Crown may be sued
by judicial proceedings. Coming to the
final question whether the government
may lie indirectly sued for lands in it,
possession, in proceedings to which the
occupants are parties defendant to the
record, the Judge cites a line of case:
from Meigs VS.. McClung, 9Th Crouch:
Reports, down to Cooley VS.. O'Conner, ii
12 Wallace, in which the United States
Court, have exercised jurisdiction insjus
such cases as this of Arlington, with thu
sanction of the Supreme Court. He ther
shows that the Supreme Courts of Vir
ginia, Louisiana, Illinois, California auc
other States have supported the ruling o
the United States Supreme Court in th'
exercise of such jurisdiction. The Judge
declares that he is bound by these au
thorities to hold that this cause may pro
ceed 10 the issue on its merits, and u
sustain the plaintiffs demurrer to thu
Generals suggestion. Th'
Judge Uaid that he had studied the au
| thorities with solicitude, from the cireum
stance that all the tax titles derived
from the tax commissioners who sold Ar
lington to the government had beer
practically overthrown by the decision o
the Supreme Court in BeRnet VS.. Hunter
| in 9 Wallace, and Tacey vs.. Irwin, in Il
Wallace, and the fate of the government
| tenure of Arlington seemed to depent
upon this question of jurisdiction. If hi
decision was wrong, however, he wa
ccnsoled by the reflection that it woul'
doubtless be reviewed on writ of erro
| by the Supreme Court,