LAW, CONSTITUTIONAL. 



461 



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 

 against The Light-Boats, 11 Allen's Eeports, 

 162.) As we have no person in this Govern- 

 ment who exercises supreme executive power, 

 pr^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." 



The Court said that but little weight could 

 be given to the English decisions on the ques- 

 tion whether a citizen might sue an officer of 

 the Government for the recovery of property, 

 for the reasons, first, that the petition of right 

 afforded a judicial remedy in England, and 

 hence there was no necessity for suing the offi- 

 cers or servants of the King ; and, second, 

 owing to the vast difference in the essential 

 character of the two governments with respect 

 to the source and the depositaries of power. 

 After citing American authorities, Justice Mil- 

 ler proceeded: 



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 can not be main- 

 tained. 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 de- 

 termined. In such case there is no safety for the citi- 

 zen, 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. The position assumed here is 

 that, however clear his rights, no remedy can be af- 

 forded 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 ex- 

 amine whether this authority is rightfully assumed is 

 the exercise of jurisdiction, and must lead to the de- 

 cision 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 set- 

 ting up such authority are lawfully possessed of it, for 

 the argument is that the formal suggestion of the ex- 

 istence of such authority forbids any inquiry into the 

 truth of the suggestion. . . . The defense stands 

 here solely upon the absolute immunity from judicial 

 inquiry of every one who asserts authority from the 

 executive branch of the Government, however clear it 

 may be made that the Executive possesses no such pow- 

 er. 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 prop- 

 erty without due process of law, or to take private 

 property without 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 impunitv. All the officers of the Gov- 

 ernment, from the highest to the lowest, are creatures 

 of the law, and are bound to obey it. It is the only 

 supreme power in our system of government, and 

 every man who by accepting office participates in its 

 functions is only the more strongly bound to submit 



to that supremacy, and to observe the limitations 

 which it imposes upon the exercise of the authority 

 which it gives. 



Courts of justice are established, not only to decide 

 upon the controverted rights of the citizens as against 

 each other, but also upon rights in controversy be- 

 tween them and the Government, and the docket ot 

 this court is crowded with controversies of the latter 

 class. Shall it be said, in the face of all this, and of 

 the acknowledged right of the judiciary to decide in 

 proper cases, statutes which have been passed by both 

 branches of Congress, and approved by the President, 

 to be unconstitutional, that the courts can not give rem- 

 edy when the citizen has been deprived of his prop- 

 erty by force, his estate seized and converted to the 

 use of the Government without any lawful authority, 

 without any process of law, and without any compen- 

 sation, because the President has ordered it and his 

 officers are in possession ? If such be the law of this 

 country, it sanctions a tyranny which has no existence 

 in the monarchies of Europe, nor in any other govern- 

 ment which has a just claim to well-regulated liberty 

 and the protection of personal rights. It can not be, 

 then, that when in a suit between two citizens for the 

 ownership of real estate, one of them has established 

 his right to the possession of the property according 

 to all the forms of judicial procedure, and by the ver- 

 dict of a jury and the judgment of the court, the 

 wrongful possessor can say successfully to the court : 

 " Stop, here ; I hold by order of the President, and 

 the progress of justice must be stayed" ; that, 

 though the nature of the controversy is one peculiar- 

 ly appropriate to the judicial function, though the 

 United States is no party to the suit, though one of 

 the three great branches of the Government to which 

 by the Constitution this duty has been assigned, has 

 declared its judgment after a fair trial, the unsuccess- 

 ful party can interpose an absolute veto upon that 

 judgment by the production of an order of the Secre- 

 tary of War, which that officer had no more authority 

 to make than the humblest private citizen. 



By the four dissenting justices it was main- 

 tained, in an elaborate opinion written by Jus- 

 tice Gray, that "the sovereign is not liable to 

 be sued in any judicial tribunal without its 

 consent. The sovereign can not hold property 

 except by agents. To maintain an action for 

 the recovery of possession of property held by 

 the sovereign through its agents, not claiming 

 any title or right in themselves, but only as the 

 representatives of the sovereign and in its be- 

 half, is to maintain an action to recover pos- 

 session of the property against the sovereign ; 

 and to evade such possession of the agents, by 

 execution or other judicial process, is to invade 

 the possession of the sovereign and to violate 

 the fundamental maxim that the sovereign can 

 not be sued. That maxim is not limited to a 

 monarchy, but is of equal force in a republic. 

 In the one, as in the other, it is essential to 

 the common defense and general welfare that 

 the sovereign should not, without its consent, 

 be dispossessed by judicial process of forts, 

 arsenals, military posts, and ships of war ne- 

 cessary to guard the national existence against 

 insurrection and invasion ; of custom-houses and 

 revenue-cutters, employed in the collection of 

 the revenue ; or of light-houses and light-ships, 

 established for the security of commerce with 

 foreign nations and among the different parts 

 of the country. These principles appear to us 

 to be axioms of public law, which would need 

 no reference to authorities in their support, 



