The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1878-03-16
;.ARLIsl-GToN..
Decision I'm am srntercssinE. Case.


~: Decision I'm am interesting Case.
JUDGE HUGHEs,s OPINION AsTo THE JU.
RIsDIcTIoN OF HIs COURT. TO TRY TEE
.EJEcTsRNT. suITs-THE FATE OF THE
ESTATE AS FAR AS IT CAN DE
BY THIS TRIBUNAL, AND In FAVOR or
CUsTIs LEAN APPEAL TO THE UNITED
STATES SUPREME COURT CERTAIN. 3
In the case OF Ct. w. G.. Lee against
Kaufman and others, involving the question
of title Of the Arlington estate, Judge Ro-
bert y; Hughes, sitting as. United States
Circuit-C Court Judg on Yesterday gave his
opinion on highly important preliminary
point.
FACTS OF The CASE.
In bis decision, which Is able and elabo-
rate tit would I'LL nine or ten columns OF this
paper, Judge Hughes makes the following
statement OF facts:
/ The late g.. W.. Parke Custis was the
owner in fee of the tract Of eleven hundred
acres of land which is the subject OF this
controversy. It is known as the Arlington
estate. It is situated south OF the Potomac
river, in Alexandria county, va, and forms
conspicuous obiectin the landscape which
presents itself to the eye in looking south
ward from the Capitol at Washington. 1t
is an estate of considerable value and OF
profound historical interest.
Mr.. Custis, who died in 1857, devised this
estate to his only child, Mrs. Mary A. r.
Lee, wife OF General Robert E. Lee, to be
held during the term of her natural life,
and at her death to the present plaintiff, G.
W. Gusts Lee, to be held in fee.
During the civil war, this estate, with the
Arlington mansion, was unoccupied by its
owner, Mrs. Lee, who was then living and
the title did not pass to her son until 1873
the date of her death.
On the 9Th Of August, 1851, the United
States Congress passed "An act to provide
increased revenue from imports to pay in
terest on the public debt, and for other pur-
poses," and on the 7th of June, 1862, passed
!" An act for the collection Of direct taxes
in insurrectionary districts within the
United States, and for other purposes"
and on the 9th Of February, 1863, enacted
still another law, entitled AN act to amend
an act entitled San act for the collection OF
direct taxes in insurrectionary districts
withi1 the United States, and for other
purposes" The frst-named law imposed
a direct tax OF $2O,0O0,00O upon the United
States, and apportioned to Virginia the sum
of $9S7, ,552.67. The tax imposed on Airing
ton was $92.07.
On the 18th day Of January, 1864, the
whole estate of 1,100 acres was sold for the
OF this tax by John w. Hawk
F. Watson, and A. j. Foster,
who were the duly appointed and con-
tirmcd direct tax commissioners OF the
United States for Virginia. The price bid
by the Government was S26, ,800-an amount
exceeding the means Of any friend OF the
owner who might have desired to buy in
the property fer him. 1t was so bought in
by the tax commissioners, under author
ity OF that clause OF the act Of Congress OF
February G, 1863, which empowered the
Government, at such sale as this was, to
purchase lands which might be selected by
the President "for Government use, for war,
naval, revenue, charitable, educa-
tional, or police purposes. The United States
at once took possession Of the estate, and
has held it ever since; no part OF the pur-
chase-money which would have remained,
after deducting the tax, having ever been
paid over either to the life-tenant or re-
mainder- @s-----.-- -.
The estate is now occupied by Frederick
Kaufman, R. P. Strong, and about 200 other
persons. Against all these by name, as de-
PENDANTS, the plaintiff, in April last, brought
two actions Of eiectment (now treated as
one) in the Circuit Court of Alexandria
county, Va, having postponed his suit un-
til within the last year Of the period OF five
years, after which it would in some OF its
objects have been barred by the statute OF
limitations.
THE LEGAL PROCEEDINGS.
The case proceeded there to issue, and
thereupon was removed by certiordri to the
Federal court. where the Attorney-General
OF the United States interviewed in behalf Of
the United States by suggestion, showing
that the Government held by record title,
obtained by purchase at tax sale in 1864,
and was in possession for public purposes; !;
raising the question whether this suit, be-
ing in fact suit against the Government,
could proceed, and moving to dismiss for
want OF jurisdiction. TO this suggestion
the plaintiff demurred and answered, and
the case was heard and argued at AleXan-
dria on the suggestion and the demurrer
The decision rendered here yesterday was
confined to the law questions arising in the
case as it stands upon the record. The
court held that the suggestion did not OF
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 to intervene.
Accordingly, the Court proceeded to in
quire whether the Government held the
estate in its sovereign or in private cha
racter; and, in the latter event, whether it
held the estate for public purposes.
THE SOVEREIGN POWER.
The cession OF State jurisdiction was
never obtained, not even from the Alexan-
dria government, says the Judge. No pro-
visions of law looking to establishing the
sovereign jurisdiction Of the United States
over Arlington has been complied with !;
and the Court showed from Vattel, Story,
the Attorney-GeneraPs opinion, and many
other authorities, that the Government held
Arlington by private tenure. 1nquiring
into the purposes for which the estate is
sheld, it appeared that only two hundred
acres OF the estate (Which contains eleven
hundred acres) are used for an apparently
public purpose-that is to say, the sacred
purpose or national cemetery-the rest
being only in the nominal use Of the Gov
ernment, 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 IN
directly 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 procession is not wrested
from The Government, and that though in
England in admiralty causes the consent OF
the Government is required to be obtained
vet that consent is generally given, as q
matter Of course. He shows that in other