December 4, 1882

Opinion written by J. Miller

IMPORTANCE OF THIS CASE: This was probably the last time that the Supreme Court of the United States defended the people of this country against the relentless growth of dictatorial federal power. The Court declared here that agents of the government who are guilty of wrongdoing can indeed be sued, as long as the particulars of the case do not absolutely require that the "United States" itself be named as a defendant.

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The case was an action by George W.C. Lee (a relative of Southern general Robert E. Lee) to recover 1,100 acres of land which had been seized by the federal government after the Civil War. Lee did not sue the "United States" by name, but only the two federal tax collectors - Frederick Kaufman and Richard P. Strong - who had expropriated his land. Nevertheless, when these two arrived in court, their defense was taken up by the Attorney General of the United States of America.

The land in question was known as "the Arlington estate", and included a 200 acre parcel which, by the time the case came before the court, had already been turned into our National Cemetery ("Arlington Cemetery").

Kaufman and Strong, in their defense, stated that the property had been in the possession of the U.S. for 10 years, "as public property of the United States, for public uses, in the exercise of their sovereign and constitutional powers...", and requested that the case be stayed and dismissed for lack of jurisdiction. In plain English, they were saying "we're the government, and you can't sue the government".

After the Civil War, Congress passed a punitive land tax against the South, to torment the South and to make them pay the cost of the war. This act of Congress, dated June 7, 1862, "for the collection of direct taxes in the insurrectionary districts within the United States", stated that the tax had to be paid "by the owner".

Apparently, Lee had sent an agent to Washington to pay the tax, and the tax collectors (the defendants, Kaufman and Strong) refused to accept it! They informed Lee that the requirement that the tax had to be paid "by the owner" meant that the owner himself -- not an agent! -- had to show up in person, and pay the money from his own hand!

In retrospect, it seems evident that this bizarre interpretation of the law was merely a subterfuge for the express purpose of expropriating Lee's land.

The Arlington estate was therefore seized by the tax collectors, and was subjected to a tax sale. It was purchased by -- the government! To complicate matters, the famous Arlington Cemetery was promptly built there, making a return of the land to its proper owner essentially impossible, but not ruling out monetary damages against the government. But can you sue "the government"? This was the question.

The government, in its defense, did not deny the charges against it, but maintained that it could not be prosecuted in its own court without its consent. This doctrine, which hails from British law, was (and is) called the doctrine of "sovereign immunity".

It was apparently demonstrated to the court at every level that the sale conferred no title. Therefore, the position of the U.S., and the opinion of the Supreme Court on this position, were stated thusly:

"This proposition [i.e., that the defendants were immune from prosecution because they were "the government"] rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual [i.e., any individual in the government] without such consent ... The first branch of this proposition is conceded to be the established law of this country and of this court at the present day; the second, as a necessary or proper deduction from the first, is denied." [United States v. Lee, 106 U.S. 196, at 204].

COMMENT: This means that the "United States" is indeed declared to be immune from prosecution, but that its employees and agents - presumably including even the President himself - do not automatically enjoy such immunity.

This was the essence of the Court's decision. Following are a sampling of the complex deliberations which ensued.

 After a brief discussion of the law regarding lawsuits against the King of England, the court then asked "why oughtn't the U.S. be sued?". The opinion of Mr. Justice Gray, of the supreme court of Massachusetts, was quoted:

" 'The broader reason is that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money in his treasury.' Briggs v. The Light Boats, 11 Allen, 162. As we have no person in this government who exercises supreme executive power or performs the public duties of a sovereign, it is difficult to see on what solid foundation of principle the exemption from liability to suit rests." [106 U.S. 196 at 206]

"The terms in which Chief Justice Marshall there [i.e., in the case Cohens v. Virginia, 6 Wheat. 380] gives assent to the principle does not add much to its force. 'The counsel for the defendant,' he says, 'has laid down the general proposition that a sovereign independent state is not suable except by its own consent.' This general proposition, he adds, will not be controverted. And while the exemption of the United States and of the several states from being subjected as defendants to ordinary actions in the courts has since that time been repeatedly asserted here, the principle has never been discussed or the reasons for it given, but it has always been treated as an established doctrine. U.S. v. Clarke, 8 Pet. 436; Same v. McLemore, 4 How. 286; Hill v. U.S. 9 How. 386; Nations v. Johnson, 24 How. 195; The Siren, 7 Wall. 152; The Davis, 10 Wall. 15. On the other hand, while acceding to the general proposition that in no court can the United States be sued directly by original process as a defendant, there is abundant evidence in the decisions of this court that the doctrine, if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit." (emphasis added) [106 U.S. 196 at 207-8]

"Under our system the people, who are there (i.e., England) called subjects, are the sovereign. Their rights, whether collective or individual, are not bound to give way to a sentiment of loyalty to the person of the monarch. The citizen here knows no person, however near to those in power, or however powerful himself, to whom he need yield the rights which the law secures to him when it is well administered. When he, in one of the courts of competent jurisdiction, has established his right to property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right." [106 U.S. 196 at 208-9]

An important, and rather subtle point, was made by reference to the case U.S. v. Peters, 5 Cranch, 115. One David Rittenhouse, as treasurer of the State of Pennsylvania, had come into possession of a ship which had been seized [presumably during the Revolutionary War; this was a very old case]. Apparently, the ship was sold, and Peters sued for the money. Rittenhouse alleged that the state of Pennsylvania was the true owner of the ship, and claimed sovereign immunity - even immunity from an examination of the claim of title. The court ruled that ...

"it certainly can never be alleged that a mere suggestion of title in a state to property in possession of an individual must arrest the proceedings of the court, and prevent their looking into the suggestion and examining the validity of the title." [106 U.S. 196 at 210]

The opinion then moves onto the question of whether the case differs when the defendants are clearly, on the face of it, acting as mere agents of the United States. The U.S. v. Lee Court says "no". They quote Meigs v. McClung's Lesee, 9 Cranch, 11, where the U.S. built a military garrison on someone's property, and the officers occupying the garrison were sued:

" The court below...held that the title being in plaintiff he might recover, and that 'if the land was private property the United States could not have intended to deprive the individual of it without making him compensation therefor.' "[106 U.S. 196 at 211]

Next, the court considered Osborn v. United States Bank, 9 Wheat. 738, calling it "a leading case, remarkable in man respects, and in none more than in those resembling the one before us." (i.e., U.S. v. Lee). Osborn, the tax collector for Ohio, seized $100,000 from the Bank of the United States to satisfy a state tax, even though the federal circuit court had issued an injunction. The Bank sued Osborn and his associates, who alleged that the state of Ohio was the real defendant, and that they, by association were immune. They won. The supreme court affirmed the decree of the circuit court for the district of Ohio, ordering a restitution of the money. The opinion of Marshall, C.J., was quoted:

" ' ... if the person who is the real principal, the person who is the true source of the mischief, by whose power and for whose advantage it is done, be himself above the law, be exempt from all judicial process, it would be subversive of the best established principles to say that the laws could not afford the same remedies against the agent employed in doing the wrong which they would afford against him could his principal be joined in the suit.' "[106 U.S. 196 at 213]

The court, in the above case (Osborn), conceded the interest of the State of Ohio, and asked whether the bank, lacking the power to bring Ohio forth as a defendant, might be allowed to proceed against her agents. The court's answer to it's own question:

"A denial of jurisdiction forbids all inquiry into the nature of the case. It applies to cases perfectly clear in themselves; to cases where the government is in the exercise of its best established and most essential powers, as well as to those which may be deemed questionable. It asserts that the agents of a state, alleging the authority of a law void in itself because repugnant to the constitution, may arrest the execution of any law in the United States." (emphasis added) [106 U.S. 196 at 214]

" 'The bank contends that in all cases in which jurisdiction depends on the character of the party, reference is made to the party on the record, not to one who may be interested, but is not shown by the record to be a party.' 'If this question were to be determined on the authority of English decisions, it is believed that no case can be adduced where any person can be considered as a party who is not made so in the record.'" [ still 106 U.S. 196 at 214]

NOTE: the above means that: in all jurisdictional questions whose outcome depends on the status ("character") of the parties to the case, the bank is alleging that only parties named in the record can be considered - not other parties who may have an interest in the outcome, but who aren't named in the record - even if those "other" parties are states or the United States itself. [still 106 U.S. 196 at 214]

" 'In cases where a state is a party on the record the question of jurisdiction is decided by inspection. If jurisdiction depend not on this plain fact, but on the interest of the state, what rule has the constitution given by which this interest is to be measured? If no rule is given, is it to be settled by the court? If so, the curious anomaly is presented of a court examining the whole testimony of a cause, inquiring into and deciding on the extent of a state's interest, without having a right to exercise any jurisdiction in the case. Can this inquiry be made without the exercise of jurisdiction?' " [106 U.S. 196 at 214]

The court quoted a few more cases, then said:

"These decisions have never been overruled. On the contrary, as late as the case of Davis v. Gray, 16 Wall. 204, the case of Osborn v. Bank is cited with approval as establishing these among other propositions:

'Where the state is concerned, the state should be made a party, if it can be done. That it cannot be done is a sufficient reason for the omission to do it, and the court may proceed to decree against the officers of the state in all respects as if the state were a party to the record.

'In deciding who are parties to the suit, the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind him as a real party in interest (italics are in the original). A state can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation to the case.' " [106 U.S. 196 at 215]

The court continues:

"The cases of The Siren, 7 Wall. 152, and the Davis, 10 Wall. 15, are instances where the court has held that property of the United States may be dealt with by subjecting it to maritime liens where this can be done without making the United States a party. This examination of the cases in this court establishes clearly this result: that the proposition that when an individial is sued in regard to property which he holds as officer or agent of the United States, his possession cannot be disturbed when that fact is brought to the attention of the court (emphasis added), has been overruled and denied in every case where it has been necessary to decide it..." [106 U.S. 196; probably at 216 (the record jumps from 215-217, with a large un-numbered body of text in between)]

The "need" of the government to protect the public interest was addressed by the court:

"The fact that the property which is the subject of this (i.e. U.S. v. Lee) controversy is devoted to public uses, is strongly urged as a reason why those who are so using it under the authority of the United States shall not be sued for its possession even by one who proves a clear title to that possession. In this connection many cases of imaginary evils have been suggested, if the contrary doctrine should prevail. Among these are a supposed seizure of vessels of war, invasions of forts and arsenals of the United States. Hypothetical cases of great evils may be suggested by a particularly fruitful imagination in regard to almost every law upon which depends the rights of the individual or of the government, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail." [106 U.S. 196 at 217]

More:

"The objection (i.e., that the land is devoted to public use) is also inconsistent with the principle involved in the last two clauses of article 5 of the amendments to the constitution of the United States, whose language is : 'That no person shall be deprived of life, liberty, or property without due process of law, nor shall private property be taken for public use without just compensation.' Conceding that the property in controversy in this case is devoted to a proper public use, and that this has been done by those having authority to establish a cemetery and a fort, the verdict of the jury finds that it is and was the private property of the plaintiff, and was taken without any process of law and without any compensation. Undoubtedly those provisions of the constitution are of that character which it is intended the courts shall enforce, when cases involving their operation and effect are brought before them." [106 U.S. 196 at 218]

The court continues:

"Looking at the question upon principle, and apart from the authority of adjudged cases, we think it still clearer that this branch of the defense (i.e., that the land is devoted to public use) cannot be maintained. It seems to be opposed to all the principles upon which the rights of the citizen, when brought in collision with the acts of the government, must be determined. In such cases there is no safety for the citizen, except in the protection of the judicial tribunals, for rights which have been invaded by the officers of the government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime." (!)[106 U.S. 196 at 218-9]

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Dissent by C.J. Bradley, J. Woods, and J. Gray (who wrote opinion).

They made a case for absolute sovereignty, based upon British law, which they quoted 29 times. One of those 29 cases did not even involve the "rights and privileges" of the Queen of England, but rather those of the Mikado of Japan! One cannot help but wonder what was in the minds of those justices, supposedly presiding over the highest court in a "free" country.

There was little in the dissent which was derived from our Constitution.

Nor was there anything in it of any benefit to the vast majority of Americans, who would just as soon not live in an absolute monarchy, or the equivalent thereof.

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