Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1878-03-02
The ARLINGTON Case.

lex Mum uau auu OtuCIS, Has tahcu W ~ VIC
United States Circuit Court, Judge l,obert W.
Hughes presiding, 10 this city, today. 1t is an
action Of tiecment brought By General q. w.
| L. Lee for the recovery Ct the Arlington estate.
| The ;:cioa Was Instituted in the State Court
against the persons actually occupying the
premises, aud upon their application this Court
ordered lis removal here. The Attorney Gen
crs cf the United States then filed a sugges-
tioa stating that the United States was the real
owner Ct the property aud ia possession OF the
same by its officers AID agents that the suit
was in effect against the United States which
as a sovereign could not DO sued, and asking
the Court to set aside the declaration and dis.
miss the case It is not denied that the Gov.
ernment of the Uoited States claims title to the
property under sale for direc: taxes made by
virtue Of the act Of Congress Of June + 1862,
that tho State Of Virginia never consented 10
the purchase by the Government Of the said
land, and that this is case arising under al
act of Congress- These being the facts, it is
respectfully submitted that the position OF the
Attorney General is untcnable, ard the rule IS.
sued upon his suggestion sioux! be discharged.
La accordance with the suggestion a rule was
issued against the plaintiff to show cause SHY
the salt should not be dismissed The plaintiff
demurrcd to the suggestion. and answered it..
The plaintiff also moved the Court to remand
the case back to tho State Court to bo proceed.
ed in there, but Judge Hughes overruled the
motion to remand on the ground that the stat
ute relied upon By counsel for the plaintiff had
been repealed by the act Of Congress Of 1874.
The argument Of COUNSEL as to the legality Of
the suggestion and the poats Of law arising
thereon ensucd
T. L. Smith, esq, counsel for plaintiff,
General Lee. read the answer to the rule,
after which be opened the argument, and
stated that the pleadings and issues had been
made up in the State Court. Now the Attorney
General comes and suggests that there is an,
other party, another issue, and another case.
This is introducing collateral matter into a
suit between parties, and was an extraordinary
, proceeding, and he would call upon the counsel
, on the other side TO show, if they could, any
, law for such proceeding, and he would be
E much surprised if they could respond 10 the
! summons. There is 10 case reported where
r the Government or sovereign claiming the
whole property could come into suit 10 this
collateral way and hustle the plaintiff out Of
f Court The Government cannot l1terposo be-
, cause the Uuited States has never obtained the
consent of the State Of Virginia to its purchase,
and therefore hold such title az it has to the
land, as a private Individual. 1t seems to be
conceded By all persons familiar with the struc
| ture and frame OF our Government that before
the sovereign right of the United States can
attach to land purchased 10 any Of the States,
there must be concurrence Of TWO tbiogs: First,
It must be purchased for constitutional pur'
, pose. Second. By the consent OF the LaglSa
ture of the State in which the same shall be.
Ii either one of these vitality necessary elements
, be wanting, then the land is held by the Gov.
, ernment not 10 its capacity as sovereign pow
or, but as private Individual
Again The Constitution prescrbes the ooly
mode by which 1t can acquire land as so7cr
eign poHer; and therefore it holds only as an
t individual when it obtains 1t 10 any other man
ncr 10 their several and respective spheres,
the State and Federal Governments possess the
attributes Of sovereignty, separate, distinct. and
, independent Of each other. That these priv
Icges may he waived is too we'll established to
need argument. That the Federal Government
, 10 acquiring land in any other mode than that
prescribed by the constitution, valves its SOW
ereiru tights az to such land, is as papab!e aud
, reasonable as where the United States or q
State becomes stakeholder 10 a private cor
{ poration, or creates corporation aud Is the
, sole owner Ut tho stock, and has been held
f thereby to surrender or waive its prerogaive
, right of sovereignty The State of Virginia
was sovereign over the Arlington estate, be-
cause possessed of tho right OF legislation over
that property. Even 10 the case where the Gov
ernment becomes stock holder in bank it lays
down lis sovereignty. The Government Gao
hold property in two sSpeots-onc as az lodi
r vidual; aud the other, as sovereign, but II
held as sovereign it must be for a constitutional
+ purpose. And it had been decided that where
the officers of the Government held property 0!
the citizen be had right to resort to the
courts, and this was SO IN the fort Dearborn
case which went to the Supreme Court Of Il.
liuois, and the Government sought to iaterpose,
but the Court ignored the prctcnsion, and gave
judgement for the plaintiff.
This case arises under law Of Congress
and the constitution gives jurisdiction irreapeo-
tive OF the character Of the parties. The Court
had decided that the suit might be maintained
even though the Government be party 10 IN.
tcrest. Legislation and sovereignty are co.,
vertible terms, and the Constitution had limited
the supreme laws Of tho land to the Constitu-
lion and the laws passed 10 pursuance of that
instrument but the judicial power extended to
all questions arising under the treaties, &c.
There exists marked distinction between the
powers of legislation. and the judicial power.
The action ofeiectment could only have been
brought against the person in possession.
The following seems to be the results OF the
authorities and reasoning.
First. The Government holds Arlington as
an individual, and not as asovereigu.
Second a suit may bo maintained against
the officers or agents Of the Government in
possession of the land, tho title to which is
claimed by the Government.
Third. The question of jurisdiction must be
determined by tho parties to the record, aud as
the United States is not party to the record,
the Court has Jurisdiction.
Fourth. If the Court should determine to
test its jurisdiction by the character Of the
| A. 70 ha