The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1878-03-16

following rule was issued:-
RULES COURT AGAINST THE PLAINTIFF.
s sss xn,s Lee s.1s'
ha~ been maSs sv the IN Of e
states that the prope in in this causs Is ~
title OF record and such suggestion having been fled TO-
lar..on dismiss the proceeding aud other
h ay os as more ay s Of
this court at Aiexandria
Ordered, That issue requiring the plaintiff to show
cause at the Court House. Aexandra. the 9TH of
a .ss ". Be-
that such rule be served th plaintiff his counsel
as Jus s HUGHES Judge
In response to this rule plaintiff flied the follow
ing answer and demurrer
THE DKMuRs AND ANSWERS.
In the Circuit Court OF the United stated for the Eastern
P Risas;. OF srsi.,a 'ecrEe G. Lee plaintiff. vs.
plaintiff not waving, but sti may lawfully do.
Court. for TO the requiring him show
20 SET a he y IN o the p
ceedings ia the above entitled Tor the SCI
has been filed therein should be granted and for
FIs-rhat soid suggestion should be dismissed as
being proper mode OF making an objection TO the jurisdc
Sseo.d-Thst said suggestion and matters therein
not sufficient in law sustain said motion SHOW
,ha any relief should be under ,ae ap
pains should be required to make any further or
Third-Ir this his demurrer should be overruIed
should be REQUIRED to make further answer to said
That he to true forth in said
property in in This suit By nsr oicsrs and
agents charged on behalf OF the governments with the
Ono q the dslendant. Maria syph.x, is
e., % on ne asS 81 Tyne l an
nes Large chapter III page $500 whereby the title to
seventeen acres and itythee OF an
be the being part OF the property in
controversy in this suit released and confirmed
fhs pain Informed and believes IL to be true that
majority OF the other defendants are ia fact
valuable services in work and labor done and hy
med by II to occupy and use the lands OF which they are
The plaintiff nrtnsr says the United no
oef or e 70 the ~ ~
sale thereof tor taxes made by John d,lets
tax Virginia, and shown by their crrth-
Gates sale copy ct which \ hea w a.. SAID ss n
tanned to such purchase y. ,-.,
in said Reston that the property controversy in this
n sssa % oss as or
behalf OF the government Of the United states with the
sSa',I
s ss spa ss the
public in the exercise q their sovereign and sons.n
allegations. G. W. c. LEE.
Thus suit is here, only the issues OF Law,
made up before the removal from the State Court but
the suggestion OF the attorney General aud the
plaintiffs demurrer to the suggestion and answer 10
spon tho IS now heard The
plaintiffs demurrer 10 the suggestion upon the
whole record, up 10 and Including the demurrer And
that demurrer the first inquiry Is, Whether 1t is
competent for the government in tho person OF its
chief law officer, TO appear by suggestion at alP and
the second assuming that the suggestion IS proper
form OF proceeding, Does u set iorth such ia
connection with the anteceden record as, conceding
the alleged to be true entities the government TO
dismissal Of these proceedings pursuance OF the
motion OF the Attorney Gensrat?
The Judge then proceeded 10 consider the interven
ton Of the government above forth aud
thorities cited by counsel. during which he said--
The only alternative which would DO left to the
plaintiff this suggestion should prevail confessed
by counsel tor the government, would be what Mr..
Jusiice Grer once cnaracterized as "tne hopeless
remedy Of petit ion TO Congress-" The effect would
defeat judicial adjudication OF the rights Of
parties and refer the plaintiffs Claims for political de-
termination to political tribunal II the fact DO
implied by the suggestion that there ia method
known the judicaure of tho country by which the
rights parties this could be iudicaly de-
termined II would DO reproach to the American
Jurisprudence In every sense would the result In this
cause be unfortunate. So much OF sentiment SO much
OF sectional sentime this of Arlington,
at once the burial ground Of soldiers who lost their
lives for the Union and me patrlmony Of the Lees,
title should have Judicial determination rather than
relocated the debate and vote OF popular
bly, always liable to the Influences of par
tisan passion. II would therefore be somewhat ex
cusabio in Court II 1t should apparently It's con-
sderation Of tho suggestion OF the government, lean
OF retaining its Jurisdiction Of such cause
that at bar.
PRIVATE sovEREIGN TENURE.
In reference 10 she tenure by which the United
States held the property the Judge held that the
sovereign domain rested In the State Of Virginia,
rscitng the authorities on the subject in
ton with the manner in which the United States came
into possession and occupancy Of the estate, said
1t clear 70 me- therefore, that the government
holds the Arlington estate by private and not BY SOW
ereign tenure, and tha. It Is only holding 200 o.
Il by oncer for necessary public purpose There
for. think that the pretenslon OF counsel for the
government holds The whole for actual
public purposes by the hands OF It's officers and BY
sovereign tenure is quite inadmiss,ble The govern
ment acquired tho land under authority OF u loose law
passed in 1853. when tho times were much out OF
Jolnt hold IL IN observance of CON-
pance with the requirements OF any law upon tho
statute book prescribing the manner in which It's title
and authority lands shall be secured and
fccted.
THE PIVOTAL QUESTION OF THE CASE
The pivotal question Oh which Tho governments
title Arlington must, In all likelihood stand iali
Is therefore the one which am now to consider:-
This suit Is brought under the laws OF Virginia;
Code Of 1873, chap l31 pp 958 So 1t Is statu-
tory acton Of ejec.ment. no ejsctment law Of vir-
OF ejectment may be brought to try the right
Of possession, serving thereby the purpose of ITO
English action OF ejeco nrmm, aud 1t may DO brought
try the right oil property, thereby standing lieu
of tho English writ OF right The law OF Virginia
provides expressly that this statutory action Of eeo
mcpt may DO brought IN the same cases IN WIFI the
writ OF right could before be brought
The learned Judge then proceeded to an exhaustive
review Of the laws OF Virginia touching the nature
oil the action OF ejectmcnt in respect to suits for
personal property &C., and TO the statutes oil England
regarding the rights OF the Grown ana the decisions
hereunder affecting tho present case, aud con.
tinued:-
UNITED STATES DECISIONS.
como, therefore, In conclusion, to consider those
decided by the Supreme Court Of the United
Satcs, IN which the government Of state Of tho
United States has been indirectly respect TO
lands In It's possession, whether held not for public
purposes.
The leading the subject, and the first point
Of time, Is tnat OF Mcigs OF al vs. McClurg's lessee
Cranch, H. The land In dispute occupied by the
United States military garrison. In a treaty Set
Ting boun dairy Of the territory Of the Indians and
extngushng their title 10 the rest In the now State
oil Tennessee the government had reserved right
TO put garrison on the Indian portion, and TO use
reserve OF three miles square IN connection with IL.
But II happened that the Indian land did not ex-
tend above tho mouth OF the Hghwassee River.
aud the government unfortunate nough, through
mistake To put lis garrison above the OF the
river on private properly. and not below, the In
dian ground An action oil cjeCtment brought,
a.