Alexandria gazette. [volume] (Alexandria, D.C.) 1834-1974, 1878-03-04
The Arlington Case.

Gen Q. ". G. Lee against kaufman and
Others, for The recovery OF Arlington,
opened before Judge Robert W. Hughes,ln the
United States Circui! Court, this morning.
Judge Wcs!el WiIIoughby resumed the AZ
gumcnt in support Of the suggestion OF the At
torney General, and the motion to dismiss the
case ca the ground that the Government OF the
| u. S. could not be sued.
Judge Hughes Inquired il writ Of right
would not lie 10 England against the Alng, as
,iisliurujshed from cjectment. lie slid the
! Virginia statute allowed ejectmont 10 be brought
in any case where the writ Of right could have
been.
Judge WilIoughby said the Court was antltl-
Mating the argument. The point now raised
would be touched upon IN due course. The
action taken in this case by suggesting the in
tcrcst Of tho United States 10 the suit was
based upon established prtoedents. The same
! question involved 10 this case had already
been decided by Chief Justice Marshall 10
an elaborate opinion, 10 which lie had
decided in tho Supreme Court of the United
States that the property could not be touched
where it was held for public national purposes.
These cases were cited for the purpose OF justl-
living the practice which had been adopted by
the Attorney General. But this was not al
action against the parties; it was suit against
the property ilscI--a proceeding 10 rem. The
action originally was an action OF custer, and
the iictions of the common law We're contrl
vancts as pr1ludcs 10 an custer OF the posses
sion and was, 10 fact, suit IN rem. But our
statute had changed the old law IN so lar rs 1t
did away with certain tictions, making the real
parties The parties to the record. and the
question TO be decided the title of tho property.
This statute, however, did not change the
principles upon which the action OF electment
is based, and it was in TACT q proceeding in
remand against the property itself.
At common law there were hut two methods
OF asserting title against the King IL. Pei
ton of Right. 9 Nlonsrans le droit. These
were The only modes that Blackstone laid down.
Even in the case OF office found les cheat by
the King, though the Office found be untrue,
vet writ would not lie against the King. IT
was necessary originally before cjectment could
be maintained for the party in legal fiction TO
20 upon the premises to be elected, but ii the
Carty went upon the dcmesne of the kiog he
became an intruder, and his cjectmcnt was 10
legal contemplation lawful. The case OF Leigh
". Zoe. s Mccson and Wellesley 579, is pre-
ciscly similar to the one before the Court, and
in that case the proceeding like this was sus-
taincd
Judge Hughes Interrupted counsel lie said
that the action Of tiectmept in Virginia Is q
substitute for the common law writ OF right as
we'll as eiectmcut. Counsel is now arguing that
the common law ecctmcnt coull not be brought
where the King was a party, because 1t the
party entered he would be considered IN lntru
der as against the King. and the action could
not be sustained without the custer. But 10 n
writ Of right the principles which governed were
different. The remainder man who had not been
in possession had writ OF right to recover the
title, 50 the reasoning applicable to the ancient
form of cjectment CT nd not apply to the pres
ent form, because the latter form applied to
every case whcro the writ OF right could DC
brought.
Judge WillougLby replied that the suit could
not be maintained, because 1t was an INVASION
of the possession Of tho Government. The
}kingy prcrogativca did not exist, but the poo
pe beiur sovereign it was an inconsistency and
au iuconcruity that the sovereign should be sub.
iect to judicial power, and Il departure from
this theory could only be allowed where the
permission of the sovereign had been first Oh.
tanned. This permission had been frequently
applied for and obtained from the Congress OF
the United States az was tho case with the
Van Ness property 10 Washington, thus show
ing that the necessity exists Tor obtaining the
consent OF the sovereign. This principle was re-
cosuix I'd in the United States statutes at large.
There was 20 authority to sue the United
States even in the case Of contracts until the
establishment OF the Court OF Claims, where
pcltions may be filed, but no process issues
against the Govarnmet. The constitutional
provision which allowed u State in lis sovereign
capacity to be sued by citizen 10 the United
States Courts had been repealed ty au amend
mcnt to that instrument upon the happening
of the first case that arose under 1t, and the
Legislature Of Virginia had unanimously adopt
cd d resolution calling for the convention to re-
peal tho article as being q dangerous assault
upon the sovereignty Of the Sratcs Suppose
a Judgment was obtained against kaufman
and others. the United States would not be
bound, either legally, morally, or politically.
but it is commended here that if q judgment be
obtained against these parties The Government
ought to rclrquish the property, notwthstand-
inr the Supreme Court had said in Windsor
vs.. McVcigh that the Judgment OF the Court
was worthless when adverse to one not Il party
to the record. a writ OF possession could not
lie against tic Government because OF the
possibility of danger OF conflict. la the cases
OF the Siren, Wallace 1872, and the Davis, 10
Wallace Is, parties we're allowed to set up an
adverse claim TO the claim 10 tho Government,
but these we're cases in Which the Government
was tho actor or party initiating the proceed
inrs, and the claim Of tho Government was
liable TO all tho objections that could arise IN
any cause. But where the Government arc In
possession and claim title to the property
no process con issue to disposses the Govern
ment, or which is an invasion Of that posses
sion. This possession 10 be ctiectual as against
an adverse claimant must be actual and not con.
structive possession, or such possession as would
bring the officers Of the Government, and the
| Court into conflict, il the former should resist
the acts of the Court. This was the decision
Of the Court 10 the case 10 10 Wallace, and Was
directly in point upon the issues in this case.
Judge Hughes referred counsel on both sides
to tho fact that various sections of the revised
statutes of the United States required that the
officers of the Government, and the President
should, before purchasing land for Govern
mental purposes obtain the cession of the. State
Nothing OF the kind had been done 10 this case.
A large quantity Of the land was not used for
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