Evening star. [volume] (Washington, D.C.) 1854-1972, 1882-12-05
THE ARLINGTON ESTATE DECISION.
Brief History OF the Suit-vieySs OF the
Court az Delivered by Judge Mfller.-

1t was announced In THE STAR yesterday that
| decision had been rendered in the q. S. Su-
preme Court In the Arlington case. affirming
| the judgment Of the court below. awarding the
| estate to the heirs Of General Robert E. Lees
wife. As heretofore stated, the Arlington es-
tate, comprising some 500 acres In Alexandria
county, Virginia, opposite Washington, on
which the national cemetery of deceased
soldiers Of the late war is located, was sold for
taxes under the act Of June z, 1862 and pur-
chased by the United States for S26. 500. The
| amount of tax due was s9207 After the death
of General Lee and his wife. suit was brought
in the United States district court by General
w. T. q. Lee, their son, against Frederick
kaufman, superintendent of the Arlington Gem
etery, and Capt. Strong, commanding
officer at Fort Whipple, tenants In possession.
for the recovery of the estate Attorney
General Devens appeared for the de-
PENDANTS on behalf of the government and
moved that the suit be dismissed for the reason
that the government, as a sovereign power,
could not be sued in its own courts without its
own consent, which had not been granted by
Congress. To this the counsel for Cen Lee de-
INJURED, and the demurrer was sustained The
case was then tried on its merits II was shown
that the commissioners had adopted q rule not
TO receive any taxes except from the owner In
person, and as Gen. Lee was then i'm the con-
iederate army, 1t was impossible for him TO paw
MS taxes within the time designated. The
court instructed the jury that il they believed
that the tax commissioners had adopted and
uniformly acted upon such rule then the sale
was Invalid and conveyed no title to the pur-
chaser. The verdict was in favor Of Gen Lee.
and the case went to the Supreme Court.
THE OPINION OF THE COURT
Justice Miller, in delivering The opinion OF the
court yesterday, said that the most important
tod &c hath
brought under any circumstances against the
government of the United States without that
governments consent. Tie court holds. first.
that the United States cannot be sued as
party defendant in any court whatever except
where Congress has provided for such suit:
second, that this exemption is however limited
to suit against the United States directly and by
name and cannot be successfully pleaded I'm
favor Of officers and agents of the United States
when sued by private persons for property in
their possession as such officers and agents:
third. that IN such cases a court of competent
jurisdiction over the parties before it may in
qulre into the lawfulness of the possession of
the United States as held by such officers or
agents, and give judgment according to the re-
suit OF the inquiry. The court further holds that
the constitutional provisions that no person
shall be deprived of life, liberty or property
without due process of law. nor private prop
erty taken for public use without Just compen-
power OF the government in its dealings with
the citizen. and relate to the class of rights
whose protection is peculiarly the province of
the judicial branch of the government. The
courts are bound to afford remedy for unlawful
lnyasons of rights of property by officers of any
branch of the government.
Speaking OF the rights Of individuals as
against the government, Justice Miller says:
What is the right of the defendant in error as
established by the verdict of the jury in this
lie ricrht t,,r n.
stead. A right to recover that which has been
taken from him by force and violence and de-
| tanned by the strong hand. This right being
clearly established, we are told that the court
can proceed no further. because it appears that
certain military officers, acting under orders of
the President, have seized this estate and con-
verified one part of it into a military fort and
another into a cemetery. 1t is not pretended,
as the case now stands that the President had
any lawful authority to do this or that the legis-
lative body could give him any such authority ex-
cept upon payment of just compensation. The de-
tense stands here solely upon the absolute immu-
nifty from judicial inquiry of every one who
asserts authority from the executive branch
OF the government, however clear 1t
may be made that the executive possesses no
such power. and not only that no such power is
given, but that it is absolutely prohibited, both
to the executive and the legislative to deprive
any one OF life, liberty or property without due
process of law or to take private property with
out just compensation. No man in this country
Is so high that he is above the law. No officer
of the law may set that law at defiance with i'm
punity. All the officers Of the government
from the highest to the lowest-are creatures of
the law. and are bound to obey IT.
In conclusion Justice Miller says that the
| circuit court was competent to decide theissues
in this case; that no error has been found. and
that the Judgment is affirmed. Justice Gray
read long dissenting opinion, which was con-
CURED in by Chief Justice Waite and Justices
Bradley and Woods.
The United States must now acquire q valid
title to the Arlington estate, either by direct
purchase from the Lee heirs or by inStituting
condemnation proceedings