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

law questions arising in the case rs II
stands upon the record. The Court held
that the suggeetion did not itself defeat
the jurisdiction, bus Lhat the court might
look into the NcDrd to discover the
grounds og the Government'e title and Of
It's right to intervene. Accordingly the
court proceeded TO inquire whether the
Goyerna1ent held the estate in its soyor-
eign or in private character, and in the
latter event whether II held the estate for
public purpo.ss. The cession of tho
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 tho estate is
held, il appeared that only 200 acres of
the estate, which contains 1,100 acres,
are used for an apparently public pur-
pose, that is the sacred purpose of 8
National cemetery; the rest being only
in the nominal use of the Government,
being actually occupied by scme two
hundred poor people, who would seeE
from the record to pay no rent.
The Judge then proceeds to examine
whether o 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
cal Oe 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 tho govern
ment is required to be obtained, yet that
consent is generally given as q matter of
course. He shows that in other suits re-
specting personal property the United
9tates 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 tho present
action is in the nature of q writ of right,
and is only ejectment in name, under
the State law, and that the English de-
cisions in holding that ejectment will not
lie, but that petition of right will lie,
really prove that the Grown may be sued
by judicial proceedings. Coming to the
final question whether the government
may be indirectly eued for lands in its
possession, in proceedings to which the
occupants ere parties defendant to tine
record, the Jldge cites line of cases
from Meigs va. McClung, 9th Crouch's
Reports, down to Cooley VS.. O'Conner, in
IL Wallace, in which the United State,
Courts have exercised Jurisdiction insjusl
such cases as this Of Arlington, with the
sanction of the Supreme Court. He then
shows that the Supreme Courts of Vir.
ginia, Louisiana, Illinois, California and
other States have supported the ruling Of
the United States Supreme Court in the
exercise of such jurisdiction. The Judge
declares that he is bound by these au
thorities to hold that this cause may pro.
ceed TO the issue on its merits, and tt
sustain the plaintiffs demurrer to the
Attorney-GeneraPs suggestion. The
Judge said that he had studied the au
thorities with solicitude, from the cir0um
stance that all the tax titles derived
from the tax commissioners who sold ar
lington to the government had beer
practically overthrown by tho decision O
the Supreme Court in Rennet vs. Hunter
in 8 Wallace, and Tacey vs.. Irwin, in Il
Wallace, and the fate of the government
tenure of Arlington seemed to depend
upon this question of Jurisdiction. If hi
decision was wrong, however, he va!
ccnsol:d by the reflection that it woule
doubtless be reviewed on o writ of erro
by the Supreme Court.