460 



LAW, CONSTITUTIONAL. 



African race, and when committed by a white 

 person. The two sections of the code are en- 

 tirely consistent. The one prescribes, gener- 

 ally, a punishment for an offense committed 

 between persons of different sexes ; the other 

 prescribes a punishment for an offense which 

 can only be committed when the two sexes are 

 of different races. There is in neither section 

 any discrimination against either sex. Section 

 4,184 equally includes the offense when the 

 persons of the two sexes are both white, and 

 when they are both black. Section 4,189 ap- 

 plies the same punishment to both offenders, 

 the white and the black. Indeed, the offense 

 against which this latter section is aimed can 

 not be committed without involving the per- 

 sons of both races in the same punishment. 

 "Whatever discrimination is made in the pun- 

 ishment prescribed in the two sections, is di- 

 rected against the offense designated, and not 

 against the person of any particular color or 

 race. The punishment of each offending per- 

 son, whether white or black, is the same." 



SUITS AGAINST THE UNITED STATES. In the 



case of the United States against Lee, decided 

 December 4, 1882, the Court held by a major- 

 ity of only one, that while the United States 

 can not be sued without its own consent, as 

 prescribed by Congress, this principle is limited 

 to suits against the United States directly and 

 by name, and does not extend to actions 

 brought against officers or agents of the Gov- 

 ernment for the recovery of property held for 

 the United States by such officers or agents. 

 The question arose out of proceedings relating 

 to the Arlington estate. This tract of land, 

 embracing about eleven hundred acres, was 

 originally the proper of George Washington 

 Parke Custis, who devised it to his daughter, 

 the wife of General Robert E. Lee, and after 

 her death, to the grandson of the testator, G. 

 W. P. C. Lee. In 1864 it was sold for non- 

 payment of taxes under acts of Congress of 

 1862 and 1863, which provided that no person 

 but the owner in person should be allowed to 

 pay the overdue taxes. The owner not ap- 

 pearing in person at the sale, the property was 

 bid in by the tax commissioners for the United 

 States. It has since been used as a national 

 cemetery for and other Government purposes, 

 and was at the time of the proceedings in this 

 controversy in the possession of Kaufman and 

 Strong, as officers of the United States. Suit 

 for its recovery was brought some time ago 

 against Kaufman and Strong, in one of the 

 State courts of Virginia, by General G. W. P. C. 

 Lee, claiming to be seized of the fee under the 

 will of his grandfather. The suit was removed 

 to the United States Circuit Court, where At- 

 torney-General Devens appeared in behalf of 

 the United States, and opposed the objection 

 that the action, being one against the Govern- 

 ment without its consent, could not be main- 

 tained. The case was then taken to the United 

 States Supreme Court. It was conceded by 

 that court that the United States can not be 



sued directly and by name by one of its citi- 

 zens without its own consent. But in this case 

 the suit was not nominally and directly against 

 the United States, but against its officers in 

 possession of property claimed by the United 

 States. On the question, whether suit could 

 be maintained against such officers, the court 

 was divided. Five judges, Miller, Field, Har- 

 lan, Matthews, and Blatchford, held that the 

 action could be sustained. Chief -Justice Waite, 

 and Justices Bradley, Woods, and Gray, main- 

 tained the contrary. Two elaborate opinions 

 were rendered, that of the court by Justice 

 Miller, and that of the minority by Justice 

 Gray. 



Justice Miller pointed out that the doctrine 

 that the United States can not be sued by an 

 individual without its consent is derived, not 

 from the Constitution, but from the laws and 

 practices of our English ancestors. But the 

 most important reasons advanced in support of 

 the principle in England do not apply to our 

 form of government. For instance, it is an 

 ancient principle in England that the King could 

 not be sued except where his consent had been 

 given on petition of right. " There is in this 

 country, however," says Justice Miller, u no 

 such thing as the petition of right, as there is 

 no such thing as a kingly head to the nation, 

 or to any of the States which compose it. 

 There is vested in no officer or body the au- 

 thority to consent that the State shall be sued 

 except in the law-making power, which may 

 give such consent on the terms it may choose. 

 Congress has created a court [United States 

 Court of Claims] in which it has authorized 

 suits to be brought against the United States, 

 but has limited such suits to those arising on 

 contract, with a few unimportant exceptions. 

 What were the reasons which forbid that the 

 King should be sued in his own court, and how 

 do those reasons apply to the political body 

 corporate which we call the United States of 

 America? As regards the King, one reason 

 given by the old judges was the absurdity of 

 the King's sending a writ to himself to com- 

 mand the King to appear in the King's court. 

 No such reason exists in our Government, as 

 process runs in the name of the President, and 

 may be served on the Attorney-General, as 

 was done in the case of Chisholm against the 

 State of Georgia (2 Dallas Reports, 419). Nor 

 can it be said that the dignity of the Govern- 

 ment 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 a*n 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 



