419]. Nor can it be said that the dignity of the Government is degraded by appearing as a defendant in the courts of its own creation, because it is constantly appearing as a party in such courts and submitting its rights, as against the citizens, to their judgment. Mr. Justice Gray, of the Supreme Court of Massachusetts, in an able and learned opinion which exhausts the sources of information on this subject, says: "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. It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists, that the supreme power in every State, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself from assaults in those courts. It is obvious that, in our system of jurisprudence, the principle is as applicable to each of the States as it is to the United States, except in those cases where by the Constitution a State of the Union may be sued in this court. R. R. Co. v. Tennessee, 101 U. S., 337 [XXV., 960]; R. R. Co. v. Alabama, Id., 832 (XXV., 973]. That the doctrine met with a doubtful reception in the early history of this court, may be seen from the opinions of two of its justices in the case of Chisholm v. State of Georgia, where Mr. Justice Wilson, a member of the Convention which framed our Constitution, after a learned examination of the Laws of England and other States and Kingdoms, sums up the result by saying: "We see nothing against, but much in favor of the jurisdiction of this court over the State of Georgia, a party to this cause." 2 Dall., 461. Ch. J. Jay also consid. ered the question as affected by the difference between a republican state like ours, and a personal sovereign, and held that there is no reason why a State should not be sued, though doubting whether the United States would be subject to the same rule. 2 Dall., 478. The first recognition of the general doctrine by this court is to be found in the case of Cohens v. Virginia, 6 Wheat., 380. The terms in which Chief Justice Marshall there 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 See 16 OTTO. U. S., Book 27 U. S. v. treated as an established doctrine. Clarke, 8 Pet., 436; Same v. McLemore, 4 How., 286; Hill v. U. S., 9 How., 386; Nations v. Johnson, 24 How., 195 [65 U. S., XVI., 628] The Siren, 7 Wall., 152 [74 U. S., XIX., 129] The Davis, 10 Wall., 15 [77 U. S., XIX., 875]. 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. But little weight can be given to the decisions of the English courts on this branch of the subject, for two reasons: 1. In all cases where the title to property came into controversy between the Crown and a subject, whether held in right of the person who was King or as representative of the Nation, the petition of right presented a judicial remedy-a remedy which this court, on full examination in a case which required it, held to be practical and efficient. There has been, therefore, no necessity for suing the officers or servants of the King who held possession of such property, when the issue could be made with the King himself as defendant. 2. Another reason, of much greater weight, is found in the vast difference in the essential character of the two governments as regards the source and the depositaries of power. Notwithstanding the progress which has been made since the days of the Stuarts, in stripping the Crown of its powers and prerogatives, it remains true to-day that the monarch is looked upon with too much reverence to be subjected to the demands of the law, as ordinary persons are, and the king-loving Nation would be shocked at the spectacle of their Queen being turned out of her pleasure garden by a writ of ejectment against the gardener. The Crown remains the fountain of honor, and the surroundings which give dignity and majesty to its possessor are cherished and enforced all the more strictly because of the loss of real power in the government. It is not to be expected, therefore, that the courts will permit their process to disturb the possession of the Crown by acting on its officers or agents. Under our system the people, who are there 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 a 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. Another class of cases in the English courts, in which attempts have been made to subject 177 12 the public ships and other property of foreign | sion of property. The suggestion was made and independent Nations found withir English that it was the property of the United States, territory, to their jurisdiction, is also inapplica- and that the court, without inquiring into the ble to this case; for, both by the English courts truth of this suggestion, should proceed no furand ours, it has been uniformly held that these ther; and in this case, as in that, after a judicial were questions the decisions of which, as they inquiry had made it clear that the property might involve war or peace, must be primarily belonged to plaintiff and not to the United dealt with by those departments of the Govern- States, we are still asked to forbid the court bement which had the power to adjust them by low to proceed further and to reverse and set negotiation, or to enforce the rights of the citi- aside what it has done, and thus refuse to perzen by war. In such cases the Judicial Depart-form the duty of deciding suits properly brought ment of this Government follows the action of before us by citizens of the United States. the political branch, and will not embarrass the latter by assuming an antagonistic jurisdiction. Such were the cases of The Exchange, 7 Cranch, 116; Luther v. Borden, 7 How., 42; Georgia v. Stanton, 6 Wall., 75 [73 U. S., XVIII., 725]. The earliest case in this court in which the true rule is laid down, and which, bearing a close analogy to the one before us, seems decisive of it, is that of U. S. v. Peters, 5 Cranch, 115. In an admiralty proceeding, commenced before the formation of the Constitution and which afterwards came into the District Court of the United States for Pennsylvania, that court, after full hearing, had decided that the libelants were entitled to the proceeds of the sale of a vessel, condemned as prize of war, which had come to the possession of David Rittenhouse, as Treasurer of the State of Pennsylvania. The District Judge had declined to issue any process to enforce his decree against the representatives of Rittenhouse, on the ground that the funds were held as the property of that State, and that as the State could not be subjected to judicial process, neither could the officer who held the money in her right. The analogy to the case before us will be seen, when it is further stated that the examination of the case and the decree of the court had passed upon this claim of the State to the money, which had been fully presented, and had decided that the libelants and not the State were legally entitled to it. In that case, as in this, it was argued that the suit was in reality against the State. But on an application for a writ of mandamus, to compel the Judge of the district court to proceed in the execution of his decree, it was granted. In delivering the opinion, Marshall, Ch. J., says: The State cannot be made a defendant to a suit brought by an individual, but it remains the duty of the courts of the United States to decide all cases brought before them by citizens of one State against citizens of a different State, when a State is not necessarily a defendant. In this case the suit was not instituted against the State or its treasurer, but against the executrices of David Rittenhouse, for the proceeds of a vessel condemned in the court of admiralty, which were admitted to be in their possession. If these proceeds had been the actual property of Pennsylvania, however wrongfully acquired, the disclosure of that fact would have presented a case on which it was unnecessary to give an opinion; but 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." It may be said, in fact it is said, that the present case differs from the one in 5 Cranch, because the officers who are sued assert no personal possession, but are holding as the mere agents of the United States, while the executors of Rittenhouse held the money until a better right was established. But the very next case in this court of a similar character, Meigs v. McClung, 9 Cranch, 11, shows that this distinction was not recognized as sound. The property sued for in that case was land on which the United States had a garrison erected at a cost of $30,000, and the defendants were the military officers in possession, and the very question now in issue was raised by these officers, who, according to the bill of exceptions, insisted that the action could not be maintained against them, "Because the land was occupied by the United States troops, and the defendants as officers of the United States, for the benefit of the United States and by their direction." They further insisted, says the bill of exceptions, that the United States had a right, by the Constitution, to appropriate the property of the individual citizen. The court below overruled these objections and 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." The case before us is a suit against Strong and Kaufman as individuals, to recover posses 66 Although the judgment of the circuit court was in favor of the plaintiff, and its result was to turn the soldiers and officers out of possession and deliver it to plaintiff, Ch. J. Marshall concludes his opinion in this emphatic language: "This court is unanimously and clearly of opinion that the circuit court committed no error in instructing the jury that the Indian title was extinguished, to the land in controversy, and that the plaintiff below might sustain his action." We are unable to discover any difference whatever, in regard to the objection we are now considering, between this case and the one before us. Impressed by the force of this argument, counsel say that the question of the objection arising out of the possession of the United States was not considered in that case, because it was not urged in argument by counsel. But it is manifest that it was so set out in the bill of exceptions, and so much relied on in the court below that it could not have escaped the attention of the court and of the eminent man who had only six years before delivered the opinion in the case of U. S. v. Peters [5 Cranch,115]. Nor could the case have been decided as it was, if the doctrine now contended for be sound, since the effect of the judgment was to dispossess the United States of an occupied garrison, by the and obedience to the injunction, and that the bill must be dismissed. judgment against the officers in charge of it. | In the case of Wilcox v. Jackson, 13 Pet., 498, the contest was over a fort of the United States A few citations from the opinion of Marshall, which had been in its continued possession for Ch. J., will show the views entertained by the over thirty years, and was so occupied when court on the question thus raised. At page the suit was brought against its officers to dis- 842 of the long report of the case, he says: possess them. The case came from the Supreme "If the State of Ohio could have been made Court of Illinois to this court, on writ of error, a party defendant, it can scarcely be denied that and the judgment in favor of the plaintiff was this would be a strong case for an injunction. reversed. The question now under consider-The objection is that, as the real party cannot ation was not passed upon directly by this court. be brought before the court, a suit cannot be But a long examination of the question, wheth-sustained against the agents of that party; and er the plaintiff had proved title in himself, and a decision that, while the State Courts of Illinois held a certificate of purchase from the United States to be a legal title under her statute, that statute was invalid, might all have been avoided by the simple declaration that the United States, being in possession of the property as a fort, no action at law against its officers could be maintained. But no such proposition was advanced by counsel on either side or considered by the court. cases have been cited to show that a court of chancery will not make a decree, unless all those who are substantially interested be made parties to the suit. This is certainly true where it is in the power of the plaintiff to make them parties, but 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." There is a very satisfactory reason for this. The cases of U.S.v. Peters, of Meigs v. McClung, and of Osborn v. U. S. Bank [9 Wheat. 738], had all involved the same question, and in the first and last of these cases, the principle was fully In another place he says: "The process is subdiscussed, and in the other necessarily decided stantially, though not in form, against the State, in the negative. And in the case of Georgia v. * Madrazo, 1 Pet., 110, the court had referred to these cases, and again asserted the principle, quoting the language of them. Counsel were not justified in asking the court to reconsider it, while most of the Judges were stil! on the bench, including the Chief Justice, who had made those decisions. The case of Osborn v. U. S. Bank [supra], is a leading case, remarkable in many respects, and in none more than in those resembling the one before us. The case was this: the State of Ohio having levied a tax upon the branch of the Bank of the United States located in that State, which the bank refused to pay, Osborn, Auditor of the State of Ohio, was about to proceed to collect said tax by a seizure of the money of the bank in its vaults, and an amended bill alleged that he had sc seized $100,000, and while aware that an injunction had been issued by the Circuit Court of the United States on the prayer of the bank, the money so seized had been delivered to the Treasurer of the State, Curry, and afterwards came to the possession of Sullivan, who had succeeded Curry as treasurer. Both Curry and Sullivan were made defendants, as well as Osborn and his assistant, Harper. One of the objections pressed with pertinacity ali through the case to the jurisdiction of the court, was the conceded fact that the State of Ohio, though not made a defendant to the bill, was the real party in interest: that all the parties sued were her officers, her auditor, her treas urer and their agents, concerning acts done in their official character, and in obedience to her laws. It was conceded that the State could not be sued, and it was earnestly argued there, as here, that what could not be done directly could not be done by suing her officers. And it was insisted that, while the State could not be brought before the court, it was a necessary party to the relief sought, namely; the return of the money * # * and the direct interest of the State in the suit as brought is admitted; and had it been in the power of the bank to make it a party,perhaps no decree ought to have been pronounced in the cause until the State was before the court. But this was not in the power of the bank, * and the very difficult question is to be decided, whether, in such a case, the court may act upon agents employed by the State and on the property in their hands." In answering this question he says: "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." Again; "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." Again; "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 jurisdic tion?” The Supreme Court affirmed the decree of the Circuit Court for the District of Ohio, ordering a restitution of the money. The case of Grisar v. McDowell, 6 Wall., 363 [73 U. S., XVIII., 863], was an action in the circuit court against General McDowell, to recover possession of property held by him as an officer of the United States, which had been set apart and reserved for military purposes. Though this was set up by him as part of his defense, it does not appear that in the argument of counsel for the government, or in the opinion of the court, any importance was attached to this circumstance; but the opinion of Mr. Justice Field in this court examines the case elaborately on the question, whether plaintiff or the government had the title to the land. If the doctrine now contented for is sound, the case should have proceeded no further on the suggestion, not denied, that the property was held for public use by a military officer under orders from the President. The case of Brown v. Huger, 21 How., 305 [62 U. S., XVI., 125], is of a precisely similar character, for the possession of the military arsenal at Harper's Ferry, in which, while the fact of its possession by the United States was set out in the bill of exceptions, no attention is given to that fact in the opinion of this court, which consists of an elaborate examination of plaintiff's title, held to be insufficient. These decisions have never been overruled. On the contrary, as late as the case of Davis v. Gray, 16 Wall., 204 [83 U. S., XXI., 447], 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. 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 Though not prepared to say now that the court can proceed against the officer in "all respects" as if the State were a party, this may be taken as intimating in a general way the views of the court at that time. The cases of The Siren, 7 Wall., 152 [74 U. S., XIX., 129], and The Davis, 10 Wall., 15 [77 U. S., XIX., 875,] 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 individual 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, has been overruled and denied in every case where it has been necessary to decide it; and that in many others, where the record shows that the case as tried below actually and clearly presented that defense, it was neither urged by counsel nor considered by the court here, though, if it had been a good defense, it would have avoided the necessity of a long inquiry into plaintiff's title and of other perplexing questions, and have quickly disposed of the case. And we see no escape from the conclusion that, during all this period the court has held the principle to be unsound, and in the class of cases like the present, represented by Wilcox v. Jackson, Brown v. Huger, and Grisar v. McDowell, it was not thought necessary to re-examine a proposition so often and so clearly overruled in previous well considered decisions. It is true that there are expressions in the opinion of the court in the case of Carr v. U. S., 98 U. S., 433 [XXV., 209], which are relied on by counsel with much confidence, as asserting a different doctrine. That was a case in which the United States had filed a bill in the Circuit Court for the District of California, to quiet title to the land on which a marine hospital had been built. To rebut the evidence of title offered by the plaintiffs, the defendant had relied on certain judgments rendered in the state courts, in which the unsuccessful parties set up title in the United States, under which they claimed. It appeared that the person who was District Attorney of the United States had defended these actions, and the question under discussion was, whether the United States was estopped by the proceedings so as to be unable to sustain the suit to quiet title. After stating the general doctrine that the United States cannot be sued without her consent, and the further proposition that no such consent can be given except by Congress, which is a sufficient reason why they cannot be concluded by an action to which they are not parties, the learned Justice who delivered the opinion proceeded to make some remarks as to cases in which actions would or would not lie against officers of the Government, in relation to property of the United States in their possession. As these remarks were not necessary to the decision of the point then in question, as the action was equally inconclusive against the United States, whether the persons sued were officers of the Government or not, these remarks, if they have the meaning which counsel attribute to them, must rest for their weight as authority, on the high character of the Judge who delivered them and not on that of the court which decided the case. That the United States are not bound by a judgment to which they are not parties, and that no officer of the Government can, by defending a suit against private persons, conclude the United States by the judgment in such case, was sufficient to decide that case, and was all that was decided. The fact that the property, which is the subject of this 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 sug- the acts of the Government, must be determined. gested by a particularly fruitful imagination in In such cases there is no safety for the citizen, regard to almost every law upon which depends except in the protection of the judicial tributhe rights of the individual or of the Govern-nals, for rights which have been invaded by the ment, and if the existence of laws is to depend upon their capacity to withstand such criticism, the whole fabric of the law must fail. The cases already cited of Meigs v. McClung, Wilcox v. Jackson, Georgia v. Madrazo, Grisar v. McDowell, Brown v. Huger, and Osborn v. The Bank of the United States, necessarily involved this question, for the property recovered by the plaintiff in the case of Meigs v. McClung was a garrison and barracks then in use for such purposes by the officers of the United States who were sued. In the case of Wilcox v. Jackson, an action was brought to recover, among other things, a fort which had been in the occupation of the United States for 30 years, and which was then occupied by an officer of the Army of the United States and his command. In the case of Osborn v. Bank, the money sued for and recovered by the final decree of this court was money claimed by the State of Ohio, as part of its public funds and devoted by the laws of that State to public uses in all the exigencies of the public service; so that the authorities we have examined, if they are worth anything, meet this objection as they meet the others which we have considered. The objection 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. The instances in which the life and liberty of the citizen have been protected by the judicial writ of habeas corpus are too familiar to need citation, and many of these cases, indeed almost all of them, are those in which life or liberty was invaded by persons assuming to act under the authority of the Government. Ex parte Milligan, 4 Wall., 2 [71 U. S., XVIII., 281]. If this constitutional provision is a sufficient authority for the court to interfere to rescue a prisoner from the hands of those holding him under the asserted authority of the Government, what reason is there that the same courts shall not give remedy to the citizen whose property has been seized without due process of law and devoted to public use without just compensation ? 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 cannot be maintained. It seems to be opposed to all the principles upon which the rights of the citizen, when brought in collision with officers of the Government, professing to act in its name. There remains to him but the alternative of resistance, which may amount to crime. The position assumed here is that, however clear his rights, no remedy can be afforded to him, when it is seen that his opponent is an officer of the United States, claiming to act under its authority; for, as Chief Justice Marshall says, to examine whether this authority is rightfully assumed, is the exercise of jurisdiction and must lead to the decision of the merits of the question. The objection of the plaintiffs in error necessarily forbids any inquiry into the truth of the assumption, that the parties setting up such authority are lawfully possessed of it; for the argument is that the formal suggestion of the existence of such authority forbids any inquiry into the truth of the suggestion. But why should not the truth of the suggestion and the lawfulness of the authority be made the subject of judicial investigation? In the case supposed, the court has before it a plaintiff capable of suing, a defendant who has no personal exemption from suit and a cause of action cognizable in the court; a case within the meaning of that term, as employed in the Constitution and defined by the decisions of this court. It is to be presumed in favor of the jurisdiction of the court, that the plaintiff may be able to prove the right which he asserts in his declaration. What is that right as established by the verdict of the jury in this case? It is the right to the possession of the homestead of plaintiff, a right to recover that which has been taken from him by force and violence and detained 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 the orders of the President, have seized this estate, and converted one part of it into a military fort and another into a cemetery. It is not pretended, as the case now stands, that the President had any lawful authority to do this, nor that the legislative body could give him any such authority, except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the Government, however clear it may be made that the executive possessed no such power. Not only that no such power is given, but that it is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty or property without due process of law, or to take private property without just compensation. These provisions for the security of the rights of the citizen stand in the Constitution in the same connection and upon the same ground, as they regard his liberty and his property. It cannot be denied that both were intended to be enforced by the judiciary as one of the departments of the Government established by that Constitution. As we have already said, the writ of habeas corpus has been often used to defend the liberty of the citizen, and even his life, against the assertion of unlawful authority on |