In the case of The Parlement Belge, 5 P. D., 197, the Court of Appeal held that an unarmed packet, belonging to the King of the Belgians, and in the hands of officers commissioned by him, and employed in carrying mails, and also in carrying merchandise and passengers for hire, was not liable to be seized in a suit in rem In the leading case of The Exchange,7 Cranch, to recover damages for a collision. Lord Jus116, the exemption of a foreign Sovereign from tice Brett, in a considered judgment, stated the being sued in our courts, was held to protect one real question to be "Whether every part of the of his public armed vessels from being libeled public property of every sovereign authority in here in a court of admiralty by citizens of the use for national purposes, is not as much exempt United States, to whom she had belonged, and from the jurisdiction of every court, as is the from whom she had been forcibly taken in a person of every Sovereign;" and, after reviewforeign port by his order. The District Attor- ing many American as well as English cases, ney of the United States having filed a sugges-announced the conclusion of the court thus: tion, verified by affidavit, that she was a pub-As a consequence of the absolute independlic armed vessel of the Emperor of the French, and actually employed in his service at the time of entering our ports, the Circuit Court, disregarding the suggestion, entered a decree for the libelants. But upon an appeal taken by

In particular classes of cases, indeed, Con

any of its territorial jurisdiction over the per- | jects of any_government which accords to citison of any Sovereign or ambassador of any zens of the United States the right to prosecute other State, or over the public property of any claims against such government in its courts," State which is destined to its public use, or over this court, speaking of the English petition of the property of any ambassador, though such right, said: It is easy to see that cases might Sovereign, ambassador or property be within arise, involving political considerations, in its territory and, therefore, but for the com- which it would be eminently proper for the mon agreement, subject to its jurisdiction. Sovereign to withhold his permission." This proposition would determine the first The English remedies of petition of right, question in the present case, in favor of the pro- monstrans de droit, and traverse of office, were test, even if an action in rem were held to be never introduced into this country as part of a proceeding solely against property, and not our common law; but in the American Colonies a procedure directly or indirectly impleading the and States claims upon the Government were owner of the property to answer to the judg- commonly made by petition to the Legislature. ment of the court. But we cannot allow it to The inadequacy or the want of those remedies be supposed that, in our opinion, the owner of is no reason for maintaining a suit against the the property is not indirectly impleaded." After Sovereign, in a form which is usual between stating the mode of procedure in courts of ad- private citizens, but which has not been exmiralty, he continued: "To implead an inde-pressly granted to them as against the Sovereign. pendent Sovereign in such a way is to call upon Queen v. Powell, above quoted; Gibbons v. U. him to sacrifice either his property or his inde- S., 8 Wall., 269 [75 U. S., XIX., 453]. pendence. To place him in that position is a breach of the principle upon which his immu-gress has authorized suits in equity to be nity from jurisdiction rests. We think that he brought against the United States; as, for incannot be so indirectly impleaded, any more than stance, in cases of delinquent receivers of pubhe could be directly impleaded. The case is, lic money against whom a warrant of distress upon this consideration of it, brought within has been issued, in cases of proprietors of land the general rule that a sovereign authority can- taken and sold to make certain improvements not be personally impleaded in any court." in the City of Washington (in which the bill is spoken of as "in the nature of a petition of right "), and in claims to share in the money received from Mexico under the Treaty of Guadalupe Hidalgo. See, U. S. v. Nourse, 6 Pet., 470, and 9 Id., 8; Murray v. Hoboken Land Co., 18 How., 272, 284 [59 U. S., XV., 372, 377]; Van Ness v. Washington, 4 Pet., 232, 276, 277; Clark v. Clark, 17 How., 315, 320 [58 U. S., XV., 77, 79]. So it has often authorized suits to be brought against the United States to confirm claims, under grants from foreign governments, to lands since ceded to the United States. But in such a suit Chief Justice Marshall said: 'As the United States are not suable of common right, the party who institutes such suit must bring his case within the authority of some Act of Congress, or the court cannot exercise jurisdiction overit." U. S.v. Clarke, 8 Pet., 436, 444.

It was argued at the bar that the petition of right in England was in effect a suit against the Crown. But the petition of right could never be maintained except after an application to the King and his consent granted. The Sovereign thus retained the power of determining in advance in every case, whether it was consistent with the public interests to allow the suit to be brought and tried in the ordinary courts of justice. The petition might be presented either to the King in person, or in Parliament; and if sued in Parliament, it might be enacted and pass as an Act of Parliament. Staunde. Prerog., 72b; Chit. Prerog., 346. The old form of proceeding by petition of right to the King was so tedious and expensive that it fell into disuse; and there is hardly an instance in which it was resorted to in England between the settlement of the Colonies and the Declaration of Inde- For more than sixty years after the adoption pendence, or for half a century afterwards. of the Constitution, no general provision was Clayton v. Atty-Gen., 1 Coop. temp. Cotten- made by law, for determining claims against the ham, 97, 120; Queen v. Powell, 1 Q. B., 353, United States; and in every Act concerning the 363, and 4 Per. & Dav., 719, 723, above quoted; Court of Claims, Congress has defined the classes Canterbury v. Atty-Gen., 1 Phillips, 306, 327; of claims which might be made, the conditions De Bode's Case, 8 Q. B., 208, 273. The granting on which they might be presented, the forms of of the royal consent as a matter of course, is proceeding and the effect to be given to the but of very modern introduction in England. awards. The Act of February 24, 1855, ch. Eastern Archipelago Co. v. Queen, 2 El. & Bl., 122, which first established that court, required 856, 914. And the Statute of 23 & 24 Vict., an Act of Congress to carry out each award. ch. 34, simplifying and regulating the proceed- The Act of March 3, 1863, ch. 92, which disings, makes it the duty of the Secretary of State pensed with that requirement, authorized the for the Home Department, to lay the petition sums due by the judgments of the Court of before the Queen for her consideration, and to Claims, after presentation of a copy thereof to give her his advice upon it; and if upon his ad- the Secretary of the Treasury, and his estimate vice she refuses to grant her fiat, the suppliant of an appropriation therefor, to be paid out of is without remedy. Irwin v. Grey, 3 F. & F., any general appropriation made by law for the 635, 637; Tobin v. Queen, 14 C. B. (N. S.), 505, satisfaction of private claims. Even under this 521, and 16 Id., 310, 368. In U. S. v. O'Keefe, 11 Act the Court of Claims had so little of the natWall.,178,184 [78 U. S., XX., 131,133], in which ure of a judicial tribunal, that this court deit was held that British subjects were included clined to entertain appeals from its decisions, in the Act of Congress of July 27, 1868, ch. 276, although the statute expressly gave such an apallowing suits for the proceeds of captured and peal. Gordon v. U. S., 2 Wall., 561 [69 U. S., abandoned property to be brought in the Court XVII., 921]; S. C., 5 Am. Law Reg. (N. S.), of Claims By aliens who are citizens or sub-111. It is only since the Act of March 17, 1866,

ch. 19, as repealed the provision which by necessary implication authorized the Secretary of the Treasury to revise the decisions of the Court of Claims, and of this court on appeal, that this court has considered and determined such appeals.

Under the existing statutes, the principal classes of demands submitted to the determination of the Court of Claims, are claims founded on laws of Congress, on regulations of the Executive Departments, and on contracts, express or implied, and claims referred to the court by Congress. Rev. Stat., sec. 1059. The proceeding by petition to Congress and reference by Congress to the Court of Claims, presents the nearest analogy that our law affords to the petition of right. No Act of Congress has conferred upon that court, or upon any other tribunal, general jurisdiction of suits against the United States to recover possession of real property, or to redress a tort. And the Act of Congress of June 11, 1864, ch. 117 (re-enacted in sec. 3753, R. S.), authorizing the Secretary of the Treasury to direct a stipulation, to the extent of the value of the interest of the United States, to be entered into for the discharge of any property owned or held by the United States, or in which the United States have or claim an interest, which has been seized or attached in any judicial proceeding under the laws of a State, expressly provides "That nothing herein contained shall be considered as recognizing or conceding any right to enforce by seizure, arrest, attachment, or any judicial process, any claim against any property of the United States, or against any property held, owned or employed by the United States, or by any department thereof, for any public use, or as waiving any objection to any proceeding instituted to enforce any such claim."

shall be enforced; none of which can be done if the citizen has an absolute right to maintain the action.

If the plaintiff is entitled to judgment, it can only be upon the ground that the United States are not a party to the record, and have no such relation to the action that their possession of the land demanded will prevent judgment against the defendants of record. If those defendants alone are to be held to be parties or interested, the plaintiff is entitled, as of right, to immediate execution as well as to judgment; and the court has no discretion to stay an execution between private parties on considerations of the interests of the public. To maintain this action, independently of any legislation by Congress, is to declare that the exemption of the United States from being impleaded without their consent does not embrace lands held by a disputed title; to defeat the exemption from judicial process in the very cases in which it is of the utmost importance to the public that it should be upheld; and to compel the United States to submit to the determination of courts and juries, the validity of their title to any land held and used for military, naval, commercial, revenue or police purposes.

tion, which declares that "The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States by citizens of another State, or by citizens or subjects of any foreign State." 2 Dall., 480, n., Hollingsworth v. Virginia, 3 Dall., 378.

The decision of this court, and the reasoning of the several judges in the case of Chisholm v. Georgia, 2 Dall., 419, in which a majority of the court held that, under the Constitution, as originally adopted, a suit could be maintained in this court against a State, by a citizen of another State, do not appear to us to furnish much aid in the determination of this case, for several reasons: 1. Each of the Judges who mentioned the subject declined to affirm that the United States could be sued. 2 Dall., 430, 469, 478. 2. The decision was based on a construction of the words of the Constitution, conferring jurisIn Gibbons v. U. S., 8 Wall., 269 [75 U. S., | diction of suits between "a State and citizens of XIX., 453], which was an attempt to maintain another State." 3. That construction was set in the Court of Claims a suit against the Gov-aside by the 11th Amendment of the Constituernment as upon an implied contract, for unauthorized acts of its officers, which were in themselves torts, the court said: "The supposition that the Government will not pay its debts, or will not do justice, is not to be indulged;" and, after stating the reasons against the maintenance of the suit, concluded: These reflections admonish us to be cautious that we do not permit the decisions of this court to become authority for the righting, in the Court of Claims, of all wrongs done to individuals by the officers of the General Government, though they may have been committed while serving that government, and in the belief that it was for its interest. In such cases, where it is proper for the nation to furnish a remedy, Congress has wisely reserved the matter for its own determination." In Langford v. U. S., 101 U. S., 341 [XXV., 1010], the remarks just quoted were repeated, and were applied to the case of a suit for the use and occupation of land which the United States, under a claim of title, had, through its Indian agents, taken possession of and since held, by force and against the will of the rightful owner. If it is proper that the United States should allow themselves to be sued in such a case as this, public policy requires that it should rest with Congress to define the mode of proceeding, the conditions on which it may be maintained, and the manner in which the decision

In those cases in which judgments have since been rendered by this court against individuals, concerning money or property in which a State had an interest, either the money was in the personal possession of the defendants and not in the possession of the State, or the suit was to restrain the defendants by injunction, from doing acts in violation of the Constitution of the United States. Within one or both of these classes fall the cases of U.S. v. Peters, 5 Cranch, 115; Osborn v. Bank, 9 Wheat., 738; Davis v. Gray, 16 Wall., 203 [83 U. S., XXI., 447]; and Board of Liquidation v. McComb, 92 U. S., 531 [XXIII., 623].

In U. S. v. Peters [supra], in which a writ of mandamus was ordered to a District Court of the United States sitting in admiralty to issue an attachment against the executrices of David Rittenhouse to enforce obedience to a decree of that court for the payment of money (although Rittenhouse had been Treasurer of the State of Pennsylvania, and the Legislature of that State had directed its Attorney-General to sue the

executrices for the recovery of the money, and the Governor to protect them against any process of the Federal Courts), the judgment of this court, as stated by Chief Justice, Marshall, went upon the ground that it was apparent that Rittenhouse held the money in his own right, and that " 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 is 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. The Chief Justice stated the conclusion of the court as follows: "Since, then, the State of Pennsylvania had neither possession of nor right to the property on which the sentence of the District Court was pronounced, and since the suit was neither commenced nor prosecuted against that State, there remains no pretext for the allegation that the case is within that amendment of the Constitution which has been cited; and, consequently, the State of Pennsylvania can possess no constitutional right to resist the legal process which may be directed in this cause.

elaborate judgments, in which the case was admitted to be one of great difficulty, ordered the defendants to restore the money, and held that the fact that the State was not and could not be, without its consent, made a defendant, afforded no objection to granting such relief.

The dictum of the learned Justice who delivered the opinion in Davis v. Gray [supra], that in Osborn v. Bank it was decided that, in cases in which a State is concerned, "That it cannot be made a party, is a sufficient reason for the omission to do it, and the court may proceed to decrée against the officers of the State in all respects as if the State were a party to the record," overstates the decision in Osborn's Case; goes beyond what was required for the decision of Davis v. Gray, in which the object of the suit and the whole effect of the decree, were to prevent the Governor and the Commissioner of the General Land-Office of the State of Texas from signing patents for lands of which the plaintiff had the title under a previous grant from the State; and, as the State cannot hold money or property otherwise than by its officers and agents, would, if understood as laying down a universal rule, practically nullify the 11th Amendment of the Constitution.

In Board of Liquidation v. McComb, 92 U.S., 531 [XXIII., 623], in which an injunction was granted to restrain the board of liquidation, consisting of the Governor and other officers, of the State of Louisiana, from issuing or using,in violation of a previous contract of the State with the plaintiff, bonds of the State in their hands, the court said that the objections to proceeding by injunction were: "First, that it is, in

The Chief Justice thus carefully avoided expressing an opinion upon a case in which the money sued for was in the possession of the State, or "the actual property of the State, how-effect, proceeding against the State itself; and, ever wrongfully acquired; and his remark upon the effect of a mere suggestion of title in the State in a suit to recover property in possession of an individual "—as well as his similar remark in Osborn v. Bank,9 Wheat.,738, 870, as to the effect of a suggestion of title in a foreign Sovereign under like circumstances-can have no application where it is in due form pleaded or suggested and satisfactorily proved or admitted, that the property is in the possession of the State or the Sovereign, under claim and color of title, though that possession is necessarily held in its behalf by its officers or servants-as appears by his own judgment in the case of The Exchange, as well as by the cases in the Court of Exchequer before cited.

In Osborn v. Bank, 9 Wheat.,738, the bill was originally filed by the Bank of the United States against the Auditor of the State of Ohio and a collector employed by him, to prevent them from levying a tax imposed by the Legislature of that State, in violation of the Constitution of the United States, upon the property of the bank; and they, after the service of the subpoena, forcibly took from the plaintiff's office the amount of the tax in money, and paid it over to the Treasurer of the State, who received it with notice of these facts, and kept it apart from other money belonging to the State, so that, in the view taken by the court, it had never come into the possession of the State, but could have been recovered from the Treasurer in an action of detinue. 9 Wheat., 833-836, 854, 858. By an amendment of the bill the Treasurer was made a defendant. Such were the facts upon which the court, by one of Chief Justice Marshall's most

secondly, that it interferes with the official dis cretion vested in the officers. It is conceded that neither of these things can be done. A State, without its consent, cannot be sued by an individual; and a court cannot substitute its own discretion for that of executive officers, in matters belonging to the proper jurisdiction of the latter." And the ground upon which the bill in that case, as well as in the previous cases of Osborn v. Bank and Davis v. Gray, was sustained, was defined to be, that when a plain official duty, requiring no exercise of discretion, is threatened to be violated by some positive official act, any person who will sustain personal injury thereby, for which adequate compensation cannot be had at law, may have an injunction to prevent it, notwithstanding the officer pleads the authority of an unconstitutional and, therefore, void law for the violation of his duty.

The case of Georgia v. Madrazo, 1 Pet., 110, does not appear to us to have any important bearing, except as tending to illustrate the distinction between the possession of the State by its agents, and the possession of the agents in their own right. The decision was, that where negro slaves were illegally taken from the owner on the high seas, and afterwards sold to a stranger, who, without the privity of the owner, imported them into the United States in violation of the Act of Congress of March 2, 1807, ch. 22, and they were here seized by an officer of the customs of the United States, and delivered to an agent appointed by the Governor of the State of Georgia in conformity with the Act of Congress, and some of them sold by order of the Governor of the State, and the

money obtained at the sale was, in the words of | ceedings must bring his case within the authorChief Justice Marshall, "actually in the Treasury ity of some Act of Congress. Such is the lanof the State, mixed up with its general funds," guage of this court in U. S. v. Clarke, 8 Pet., and the rest of the slaves remained in the hands 444. The same exemption from judicial procof the agent of the State, "in possession of the ess extends to the property of the United States, Government," a libel in admiralty by the owner and for the same reasons. As justly observed to recover possession of the money and slaves, by the learned Judge who tried this case, there though not brought against the State by name, is no distinction between suits against the Govbut against the Governor in his official capacity, ernment directly, and suits against its property." was a suit against the State and, therefore, by In the case of The Davis, 10 Wall., 15 [77 U. reason of the 11th Amendment of the Constitu- S., XIX., 875], the court, stating the doctrine tion, could not be maintained. See, also, Ex somewhat less broadly, yet affirmed the propparte Madrazzo, 7 Pet., 627. osition, as clearly established by authority, that "No suit in rem can be maintained against the property of the United States when it would be necessary to take such property out of the possession of the Government by any writ or process of the court;" and in discussing the question, what constitutes a possession which protects the property from the process of the court, said: "We are speaking now of a possession which can only be changed under process of the court, by bringing the officer of the court into collision with the officer of the Government, if the latter should choose to resist. The possession of the Government can only exist through some of its officers, using that phrase in the sense of any person charged on behalf of the Government with the control of the property, coupled with its actual possession. This, we think, is a sufficiently liberal definition of the possession of the property by the Government to prevent any unseemly conflict between the court and the other departments of the Government, and which is consistent with the principle which exempts the Government from suit and its possession from disturbance, by virtue of judicial process."

In the case, on which the plaintiff principally relies, of Meigs v. M' Clung,9 Cranch, 11, in which a Circuit Court of the United States, and this court on writ of error, gave judgment for the plaintiff, in an action of ejectment for land held by the defendants as officers and under the authority of the United States, the full statement of their position, in the bill of exceptions, on page 13 of the report, clearly shows that the fact that they so held the land was not set up in defense, except as supplemental to the position that the legal title to the land was in the United States; and it does not appear to have been mentioned in argument. No objection to the exercise of jurisdiction was made by the defendants or by the United States, or noticed by the court. That the court understood the United States to desire a decision upon the merits, is further apparent from Chief Justice Marshall's summary towards the close of the opinion, "The land is certainly the property of the plaintiff below; and the United States cannot have intended to deprive him of it by violence and without compensation." Had the decision covered the question of jurisdiction, the Chief Justice would hardly have omitted to refer to it in Osborn v. Bank, above stated.

In The Siren, a claim for damages against a prize ship, for a collision on her way from the place of capture to the port of adjudication, was In Wilcox v. Jackson, 13 Pet., 498, in Brown allowed out of the proceeds of her sale upon v. Huger,21 How.,305 [62 U. S., XVI.,125], and condemnation, because the Government was the in Grisar v. McDowell, 6 Wall., 363 [73 U. S., actor in the suit to have her condemned. In The XVIII., 863], which were also actions of eject- Davis, a claim was allowed for salvage of goods ment against officers of the United States, the belonging to the United States in the hands of judgments were in favor of the defendants on the master of a private vessel as a common carthe merits, no suggestion that the United States rier, because his possession was not the posseswere so interested that the action could not be sion of the United States, and the United States maintained was made by counsel or passed upon could only obtain the goods by coming into by this court, and that the court has not hither-court as claimant and actor. Each of those cases, to understood any such question to be settled by any or all of those cases is clearly shown by its more recent judgments.

In the case of The Siren, 7 Wall., 152 [74 U. S., XIX.,129], the court said: "It is a familiar doctrine of the common law, that the Sovereign cannot be sued in his own courts without his consent. The doctrine rests upon reasons of public policy; the inconvenience and danger which would follow from any different rule. It is obvious that the public service would be hindered and the public safety endangered, if the supreme authority could be subjected to suit at the instance of every citizen and, consequently, controlled in the use and disposition of the means required for the proper administration of the government. The exemption from direct suit is, therefore, without exception. This doctrine of the common law is equally applicable to the supreme authority of the Nation, the United States. They cannot be subjected to legal proceedings at law or in equity without their consent; and whoever institutes such pro

as was pointed out in Case v. Terrell, 11 Wall., 199, 201 [78 U. S., XX., 134], was decided upon the ground that "The Government came into court of its own volition to assert its claim to the property, and could only do so on condition of recognizing the superior rights of others."

In Carr v. U. S., 98 U.S.,433 [XXV., 209], in which it was decided that judgments in ejectment against officers of the Government, in possession in its behalf, of lands held for a marine hospital, did not bind nor estop the United States, it was said, in the opinion of the court: "We consider it to be a fundamental principle that the Government cannot be sued except by its own consent; and certainly no State can pass a law which would have any validity, for making the Government suable in its courts. It is conceded in The Siren [supra], and in The Davis [supra], that, without an Act of Congress no direct proceeding can be instituted against the Government or its property. And in the latter case it is justly observed that the possession of the Government can only exist through its