United States v. Lee
Encyclopedia
United States v. Lee, 106 U.S. 196 (1882), is a 5-to-4 ruling by the United States Supreme Court which held that the Constitution's prohibition on lawsuits against the federal government
did not extend to officers of the government themselves. The case involved the heir of Mary Anna Custis Lee
, wife of Confederate States of America
General Robert E. Lee
, who sued to regain control of Arlington House
and its grounds. Arlington had been seized by the United States government in 1861 and eventually converted into Arlington National Cemetery
. The estate had been sold to pay outstanding taxes, but the lawsuit contested the tax sale as improper. A jury found in favor of the Lees. The Supreme Court, too, concluded that the tax sale was illegal. In stripping the federal officers of their sovereign immunity, the Supreme Court agreed that suit against them was proper.
The jury verdict returned Arlington to the Lee family, but only temporarily. The family never returned to Arlington, but rather sold the estate to the United States government in 1883 for $150,000.
, son of Martha Parke Custis Washington
and stepson of George Washington
, purchased 1100 acres (445.2 ha) of forest and farm land in 1778 and called it "Arlington." The estate was located directly across the Potomac River
from the city of Washington, D.C.
, in what was then Alexandria County (now known as Arlington County
). John Custis died in 1781, and his son, George Washington Parke Custis
, inherited the property. G.W.P. Custis hired George Hadfield
, then supervising construction of the United States Capitol
, to design and build a two-story Greek Revival
house atop the most prominent hill on the property, a mansion Custis named "Arlington House." G.W.P. Custis' daughter, Mary Anna, married Robert E. Lee in 1831. Custis died in 1857, leaving his estate and Arlington House to his daughter.
seceded from the United States and Robert E. Lee resigned his commission in the United States Army
on April 20, 1861, and joined the military forces of the Confederate States of America
. On May 7, troops of the Virginia militia
occupied Arlington and Arlington House. With Confedrate forces occupying Arlington's high ground, the capital of the Union was left in an untenable military position. Although unwilling to leave Arlington House, Mary Lee believed her estate would soon be invested with federal soldiers. So she buried many of her family treasures on the grounds and left for her sister's estate at Ravensworth
in Fairfax County, Virginia
, on May 14. On May 3, General Winfield Scott
ordered Brigadier General
Irvin McDowell
to clear Arlington and the city of Alexandria, Virginia
, of all troops not loyal to the United States. McDowell occupied Arlington without opposition on May 24.
On June 7, 1862, the U.S. Congress enacted the Act for the Collection of Taxes in the Insurrectionary Districts (12 Stat. at L. 422), legislation which imposed a property tax
on all land in "insurrectionary" areas of the United States. The 1863 amendments to the statute required these taxes to be paid in person. Congress knew that few Confederate sympathizers would appear in person to pay the tax, thus allowing the federal government to seize large amounts of property and auction it off to raise money for the war effort. A tax of $92.07 was levied on the Arlington estate in 1863. But Mary Lee, afflicted with severe rheumatoid arthritis
and behind Confederate lines in Richmond, Virginia
, gave the payment to her cousin, Philip R. Fendall (who lived in Alexandria). The tax collectors refused to accept his payment. On January 11, 1864, the entire estate was auctioned off to pay the tax due. (With a 50 percent penalty for nonpayment, the total of tax and fine was $138.11.) Although the auction was well-attended, the U.S. government was the only bidder and won the property for $26,800 (less than its assessed value of $34,100).
With local cemeteries in Alexandria County and Alexandria filling rapidly with war dead, Quartermaster General of the United States Army
Montgomery C. Meigs
proposed using 200 acres (80.9 ha) the Arlington estate as a cemetery. The first burial there was made on May 13, 1864. United States Secretary of War
Edwin M. Stanton
approved the establishment of a military cemetery on June 15, 1864, creating Arlington National Cemetery. By the end of the war in April 1865, more than 16,000 people had been buried at Arlington. In September 1866, a memorial and a burial vault (containing the remains of 2,111 U.S. and Confederate soldiers who died at the First Battle of Bull Run
, Second Battle of Bull Run
, and along the Rappahannock River
) were constructed in Lee's former rose garden on the mansion's east side to honor unknown soldiers who had died during the American Civil War
.
In April 1874, Robert E. and Mary Lee's eldest son, George Washington Custis Lee
, petitioned Congress for payment for the Arlington estate. Lee argued that tax sale of the entire property (rather than just that portion needed to pay the tax debt) amounted to confiscation and was unconstitutional. He also argued that the tax collectors' refusal to accept payment made the proceedings null and void. Finally, he asserted that the federal government would only be able to secure a life interest
in the property (in other words, seize it only as long as Mary Lee lived) and could not assert title to the estate without the consent of the state of Virginia. He offered not to litigate the seizure of Arlington if paid. Lee's petition was referred to the United States House Committee on the Judiciary
on April 6, but it was not acted on.
In April 1877, Lee filed suit in Alexandria County circuit court to eject the U.S. government from Arlington. His suit named, among others, Frederick Kaufman (a civilian in the United States Department of War
who oversaw Arlington National Cemetery) and R.P. Strong (a U.S. Army officer who supervised the portion of Arlington which had become an Army post). Almost a thousand others were named in the suit, all of them former African American slaves who had been allowed to form a settlement known as Freedmen's Village on part of the estate. On July 6, United States Attorney General
Charles Devens
filed a writ of certiorari asking that the case be transferred to the United States Circuit Court for the Eastern District of Virginia
, a request which the federal court approved three days later. On July 16, Devens filed a motion to have Lee's suit dismissed on the grounds that the Constitution made the federal government immune
to suits at law (unless it gave its consent). Lee filed a demurrer
, pointing out that the government had taken the contradictory position of being a private buyer in a tax sale and yet asserting sovereign immunity as if its purchase were a governmental act. On March 15, 1878, the circuit court held that not only did the court have jurisdiction to decide the issue but that the lawsuit presented a controversy over facts which should be decided by a jury. A jury trial was held January 24-30, 1879, in Alexandria. The jury found for Lee, concluding that the demand to accept payment only in person violated the Constitution's due process
guarantees.
The federal government asked on April 6, 1879, that the jury verdict be set aside on the basis of the Supreme Court's ruling in Carr v. United States, 98 U.S. 433, (a decision handed down on March 3, after the jury's verdict had been reached). Carr v. United States involved a case where the city of San Francisco, California
, transferred title to property within the city to the federal government even though a private citizen claimed title to the land. The Supreme Court reaffirmed in Carr that the federal government cannot be sued without its consent, that a suit against an officer or agent of the federal government does not bind the government itself, and that courts do not have jurisdiction over title suits against the federal government's officers and agents. Only when property has been transferred by the courts does a private citizen establish a right to establish or reclaim rights to title. The circuit court held that much of the decision in Carr was dicta
and reaffirmed the jury decision.
Two appeals were made to the U.S. Supreme Court. The first was by the United States government itself, the second was made by the government on behalf of Kaufman and Strong. The question was whether the title actually transferred to the federal government. If yes, then Lee had no claim; but if not, then Lee had standing to sue to reclaim his title to the land. To determine this, the Court first had to rule out any other grounds for a suit and then whether the tax sale actually transferred the title.
wrote the decision for the majority, joined by Associate Justices Stephen Johnson Field
, John Marshall Harlan
, Stanley Matthews, and Samuel Blatchford
. Most of Miller's ruling was technical.
After reviewing the facts of the case, Miller presented the two critical questions in the case: 1) Were there other grounds for a suit other than transfer of title in error, and 2) whether the tax sale had actually transferred title. The members of the Court were agreed that there no errors regarding interpretation of the law by the circuit court, in the jury instructions, or in the documents of the tax sale. But, citing Bennett v. Hunter, 72 U.S. 326 (1869), (which had involved the nearby Abingdon estate
); Tacey v. Irwin, 85 U.S. 549 (1873); and Atwood v. Weems, 99 U.S. 183 (1878), the majority reaffirmed that a tax collector's refusal to accept payment was the equivalent of payment. The majority considered whether a rule had been properly adopted by the tax commissioners to accept payment only from the title holder him or her self, and found that it had properly been adopted. However, the majority found that denial of a taxpayer's right to pay through an agent was improper:
The government claimed that prior Court rulings on tax payment regulations were not applicable because the 1862 the law specifically required payment to be made in person, but the Court disagreed and distinguished its previous decisions as being based on the 1862 law and its 1863 amendments. The government also claimed that the law did not permit payment to be made between the announcement of the tax sale and the date of the sale if the government were the purchaser. But the majority pointed out that this created a contradiction: How could the title holder know that the government was the purchaser until the actual purchase had occurred? This made no sense, and subsequently that section of the law was invalid.
The Court next considered whether payment had been attempted. Relying on Cooley v. O'Connor, 79 U.S. 391 (1870), the majority noted that nothing in the law or the Constitution indicated that the government's title to land "should have any greater effect as evidence of title than in the case of a private purchaser, nor why it should not be subject to the same rules in determining its validity, nor why the payment or tender of the tax, interest, and costs, should not be made by an agent in the one case as in the other." Since there was uncontested evidence that Lee had attempted to make payment in full, the tax should have been considered paid.
But did sovereign immunity bar any challenge to the government's title, once title had been transferred? Justice Miller engaged in a lengthy historical review of the privilege of sovereign immunity, its roots in English
and common law
, its acceptance in Colonial America, its enshrinement in the Constitution, and its growing acceptance by the courts of the United States. But the Lee lawsuit was against Kaufman and Strong as individuals, not just the United States government. The government argued that title in the Arlington estate was held by the government, not these officers, and thus was immunized against suit. The Court, citing Meigs v. M'Clung's Lessee 13 U.S. 11 (1815), concluded there was no difference whether the officers were in possession of the land themselves or whether they held the land as agents of the government. The Court relied heavily on Osborn v. Bank of the United States
, 22 U.S. 738 (1824), in which officers of the state of Ohio (rather than the state itself) were sued but the actual party affected was the sovereignly immune state. The majority reaffirmed the statement of principle on Davis v. Gray: "Where the State is concerned, the State should be made a party, if it can be done." The Court agreed that much of the holding in Carr v. United States was dicta, and could not be relied upon by the government.
The government also claimed that since Arlington had been put to a lofty public use (a cemetery and a fort), Lee should not be able to disturb title to it after so long a period of time. But the Court strongly disagreed, arguing that the Fifth Amendment
made no such distinction. In ringing language, the majority upheld Lee's right against deprivation of property without due process of law:
The decision of the circuit court was affirmed.
wrote a dissent, which was joined by Chief Justice
Morrison Waite
and Associate Justices Joseph P. Bradley, and William Burnham Woods
.
Justice Gray extensively reviewed the facts of the case. Then Gray asserted the critical principle in the case: "The sovereign is not liable to be sued in any judicial tribunal without its consent. The sovereign cannot hold property except by agents." Like the majority, the dissenters also provided a lengthy history of the right of sovereign immunity, but underscoring the uniform inviolability of the right. Citing United States v. Clarke, 33 U.S. 436 (1834), the dissent reasserted that a lawsuit against the United States must be brought under the explicit authority of an act of Congress or the courts have no jurisdiction over it. Gray also reviewed the authority of private citizens to bring suit in the United States Court of Claims
.
To permit Lee's suit, Gray argued, would open the United States to a multitude of suits over title to land it held. The cases cited by the majority (such as United States v. Peters, Osborn v. Bank of United States, Meigs v. M'Clung, and Davis v. Gray) were improperly cited, Gray argued, as in each case "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." It was one thing for the Court to eject or dispossess officers or agents of the United States from land or funds; such actions, Gray concluded, continued to immunize the United States government from suits. Carr v. United States reaffirmed this principle, he concluded. To blur the distinction between officer and state or to assume or imply it without the state's consent, as the majority does, Gray said, would leave the sovereign immunity right in shambles.
Once the United States asserted that it was a party to the case, Gray concluded, the courts had no jurisdiction and should not have heard the case. Once the United States interposed itself between Kaufman and Strong and the plaintiff, the courts should not have ordered trial to proceed against them, either. Because the courts had no jurisdiction, the dissenters refused to address the issue of the validity of the title.
. After several months of difficult negotiations, Lee and the government settled on a sale price of $150,000. Congress enacted legislation funding the purchase on March 3, 1883; Lee signed over the title on March 31; and the title transfer was recorded on May 14, 1883.
United States v. Lee is one of three important federal sovereign immunity cases, and the most important doctrinally. The case showed just how sharply divided the Supreme Court was over the scope and legitimacy of sovereign immunity in the United States. The majority opinion questioned whether it was appropriate in a republic, and suggested that it had been adopted in an unprincipled and careless way by previous court decisions. The decision was the first to refuse to extend sovereign immunity to officers of the state acting as individuals, a principle which would later become known as the "stripping doctrine". The decision also revised the Supreme Court's "nominal party rule," first enunciated in Osborn and Davis. In those cases, the Court had salvaged federal and state sovereign immunity by creating a bright-line legal fiction that the suits were against government officers in their capacity as individuals and not acting on behalf of the state. The Court in Lee reaffirmed this "nominal party rule" but only with five votes—which proved to be its last use. In Louisiana ex rel. Elliot v. Jumel, 107 U.S. 711 (1882), a majority of the Court upheld the "nominal party rule" but refused to invoke it on an technicality. In New Hampshire v. Louisiana, 108 U.S. 76 (1883), the Court abandoned the "nominal party rule" in favor of a "real party interest test." The Court openly rejected the rule (without necessarily overturning its previous decision) in In re Ayers, 123 U.S. 443 (1887). Nevertheless, the Court did not overturn Lee but rather distinguished it narrowly and continued to affirm its basic principles in Jumel and Ayers.
United States v. Lee also sharply limited the sovereign immunity doctrine by implying that it could be subordinated to other, more fundamental rights such as the Fifth Amendment's prohibition against "takings" without just compensation and due process. Justice Miller's ringing endorsement of the rights of individuals is seen as endorsing the concept that, in the United States, the people are the sovereign—not the government. In Tindal v. Wesley, 167 U.S. 204 (1897), the Supreme Court expressly extended the Lee decision to "takings" suits against states (which had previously been barred by the Court's constitutional interpretations).
Although Lee seemed to invite a full-scale reconsideration of the doctrine of sovereign immunity, subsequent Supreme Court decisions in Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682 (1949) and Malone v. Bowdoin, 369 U.S. 643 (1962) sharply limited the impact of the Lee Court's decision. Larson and Malone specifically carved out only two areas in which an officer of the United States may be sued: 1) If the officer acts outside her or his legally prescribed scope of authority, or 2) If the officer acts in a way that is unconstitutional.
Interestingly, the Lee decision also created a contradiction within the Supreme Court's approach to federal-state relations. Article I, Section 8, Clause 17 of the United States Constitution bars the federal government from acquiring the land of any state except with that state's express permission. In United States v. Penn, 48 F. 669, 670 (C.C.E.D. Va. 1880), a circuit court had held that the federal government held no jurisdiction over Arlington National Cemetery because it had not obtained Virginia's permission to hold title to the land. The Lee Court never addressed this issue, and in fact came to the opposite conclusion (its decision to return the property to the Lee family being founded on other grounds).
At least one legal historian has concluded that Lee also laid an early foundation for the doctrine of executive immunity.
In many ways, the Lee decision is also more famous for its defense of the rights of citizens than its sovereign immunity jurisprudence. Miller's defense of the rights of the individual ("No man...is above the law...") is considered "elegantly elaborated" by lawyer Lawrence Walsh. Constitutional law scholar Louise Weinberg
called the language "ringing". Another legal scholar called the language "remarkable" and emphatic.
Sovereign immunity in the United States
Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort...
did not extend to officers of the government themselves. The case involved the heir of Mary Anna Custis Lee
Mary Anna Custis Lee
Mary Anna Randolph Custis Lee was the wife of Confederate General Robert E. Lee.-Biography:Mary Anna Custis Lee was the only surviving child of George Washington Parke Custis, George Washington's step-grandson and adopted son and founder of Arlington House, and Mary Lee Fitzhugh Custis, daughter...
, wife of Confederate States of America
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
General Robert E. Lee
Robert E. Lee
Robert Edward Lee was a career military officer who is best known for having commanded the Confederate Army of Northern Virginia in the American Civil War....
, who sued to regain control of Arlington House
Arlington House, The Robert E. Lee Memorial
Arlington House, The Robert E. Lee Memorial, formerly named the Custis-Lee Mansion, is a Greek revival style mansion located in Arlington, Virginia, USA that was once the home of Confederate General Robert E. Lee. It overlooks the Potomac River, directly across from the National Mall in Washington,...
and its grounds. Arlington had been seized by the United States government in 1861 and eventually converted into Arlington National Cemetery
Arlington National Cemetery
Arlington National Cemetery in Arlington County, Virginia, is a military cemetery in the United States of America, established during the American Civil War on the grounds of Arlington House, formerly the estate of the family of Confederate general Robert E. Lee's wife Mary Anna Lee, a great...
. The estate had been sold to pay outstanding taxes, but the lawsuit contested the tax sale as improper. A jury found in favor of the Lees. The Supreme Court, too, concluded that the tax sale was illegal. In stripping the federal officers of their sovereign immunity, the Supreme Court agreed that suit against them was proper.
The jury verdict returned Arlington to the Lee family, but only temporarily. The family never returned to Arlington, but rather sold the estate to the United States government in 1883 for $150,000.
History of the Arlington estate
John Parke CustisJohn Parke Custis
John Parke Custis was a Virginia planter, the son of Martha Washington and stepson of George Washington.-Childhood:...
, son of Martha Parke Custis Washington
Martha Washington
Martha Dandridge Custis Washington was the wife of George Washington, the first president of the United States. Although the title was not coined until after her death, Martha Washington is considered to be the first First Lady of the United States...
and stepson of George Washington
George Washington
George Washington was the dominant military and political leader of the new United States of America from 1775 to 1799. He led the American victory over Great Britain in the American Revolutionary War as commander-in-chief of the Continental Army from 1775 to 1783, and presided over the writing of...
, purchased 1100 acres (445.2 ha) of forest and farm land in 1778 and called it "Arlington." The estate was located directly across the Potomac River
Potomac River
The Potomac River flows into the Chesapeake Bay, located along the mid-Atlantic coast of the United States. The river is approximately long, with a drainage area of about 14,700 square miles...
from the city of Washington, D.C.
Washington, D.C.
Washington, D.C., formally the District of Columbia and commonly referred to as Washington, "the District", or simply D.C., is the capital of the United States. On July 16, 1790, the United States Congress approved the creation of a permanent national capital as permitted by the U.S. Constitution....
, in what was then Alexandria County (now known as Arlington County
Arlington County, Virginia
Arlington County is a county in the Commonwealth of Virginia. The land that became Arlington was originally donated by Virginia to the United States government to form part of the new federal capital district. On February 27, 1801, the United States Congress organized the area as a subdivision of...
). John Custis died in 1781, and his son, George Washington Parke Custis
George Washington Parke Custis
George Washington Parke Custis , the step-grandson of United States President George Washington, was a nineteenth-century American writer, orator, and agricultural reformer.-Family:...
, inherited the property. G.W.P. Custis hired George Hadfield
George Hadfield (architect)
George Hadfield was born in Livorno, Italy of English parents, who were hotel-keepers. He studied at the Royal Academy, and worked with James Wyatt for six years before emigrating to the United States....
, then supervising construction of the United States Capitol
United States Capitol
The United States Capitol is the meeting place of the United States Congress, the legislature of the federal government of the United States. Located in Washington, D.C., it sits atop Capitol Hill at the eastern end of the National Mall...
, to design and build a two-story Greek Revival
Greek Revival architecture
The Greek Revival was an architectural movement of the late 18th and early 19th centuries, predominantly in Northern Europe and the United States. A product of Hellenism, it may be looked upon as the last phase in the development of Neoclassical architecture...
house atop the most prominent hill on the property, a mansion Custis named "Arlington House." G.W.P. Custis' daughter, Mary Anna, married Robert E. Lee in 1831. Custis died in 1857, leaving his estate and Arlington House to his daughter.
Seizure of the estate
In April 1861, VirginiaVirginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...
seceded from the United States and Robert E. Lee resigned his commission in the United States Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
on April 20, 1861, and joined the military forces of the Confederate States of America
Confederate States of America
The Confederate States of America was a government set up from 1861 to 1865 by 11 Southern slave states of the United States of America that had declared their secession from the U.S...
. On May 7, troops of the Virginia militia
Virginia Militia
The Virginia militia is an armed force composed of all citizens of the Commonwealth of Virginia capable of bearing arms. The Virginia militia was established in 1607 as part of the British militia system. Militia service in Virginia was compulsory for all free males...
occupied Arlington and Arlington House. With Confedrate forces occupying Arlington's high ground, the capital of the Union was left in an untenable military position. Although unwilling to leave Arlington House, Mary Lee believed her estate would soon be invested with federal soldiers. So she buried many of her family treasures on the grounds and left for her sister's estate at Ravensworth
Ravensworth (plantation)
Ravensworth was an 18th-century plantation near Annandale in Fairfax County, Virginia. Ravensworth was the Northern Virginia residence of William Fitzhugh, William Henry Fitzhugh, Mary Lee Fitzhugh Custis, and William Henry Fitzhugh Lee...
in Fairfax County, Virginia
Fairfax County, Virginia
Fairfax County is a county in Virginia, in the United States. Per the 2010 Census, the population of the county is 1,081,726, making it the most populous jurisdiction in the Commonwealth of Virginia, with 13.5% of Virginia's population...
, on May 14. On May 3, General Winfield Scott
Winfield Scott
Winfield Scott was a United States Army general, and unsuccessful presidential candidate of the Whig Party in 1852....
ordered Brigadier General
Brigadier general (United States)
A brigadier general in the United States Army, Air Force, and Marine Corps, is a one-star general officer, with the pay grade of O-7. Brigadier general ranks above a colonel and below major general. Brigadier general is equivalent to the rank of rear admiral in the other uniformed...
Irvin McDowell
Irvin McDowell
Irvin McDowell was a career American army officer. He is best known for his defeat in the First Battle of Bull Run, the first large-scale battle of the American Civil War.-Early life:...
to clear Arlington and the city of Alexandria, Virginia
Alexandria, Virginia
Alexandria is an independent city in the Commonwealth of Virginia. As of 2009, the city had a total population of 139,966. Located along the Western bank of the Potomac River, Alexandria is approximately six miles south of downtown Washington, D.C.Like the rest of northern Virginia, as well as...
, of all troops not loyal to the United States. McDowell occupied Arlington without opposition on May 24.
On June 7, 1862, the U.S. Congress enacted the Act for the Collection of Taxes in the Insurrectionary Districts (12 Stat. at L. 422), legislation which imposed a property tax
Property tax
A property tax is an ad valorem levy on the value of property that the owner is required to pay. The tax is levied by the governing authority of the jurisdiction in which the property is located; it may be paid to a national government, a federated state or a municipality...
on all land in "insurrectionary" areas of the United States. The 1863 amendments to the statute required these taxes to be paid in person. Congress knew that few Confederate sympathizers would appear in person to pay the tax, thus allowing the federal government to seize large amounts of property and auction it off to raise money for the war effort. A tax of $92.07 was levied on the Arlington estate in 1863. But Mary Lee, afflicted with severe rheumatoid arthritis
Rheumatoid arthritis
Rheumatoid arthritis is a chronic, systemic inflammatory disorder that may affect many tissues and organs, but principally attacks synovial joints. The process produces an inflammatory response of the synovium secondary to hyperplasia of synovial cells, excess synovial fluid, and the development...
and behind Confederate lines in Richmond, Virginia
Richmond, Virginia
Richmond is the capital of the Commonwealth of Virginia, in the United States. It is an independent city and not part of any county. Richmond is the center of the Richmond Metropolitan Statistical Area and the Greater Richmond area...
, gave the payment to her cousin, Philip R. Fendall (who lived in Alexandria). The tax collectors refused to accept his payment. On January 11, 1864, the entire estate was auctioned off to pay the tax due. (With a 50 percent penalty for nonpayment, the total of tax and fine was $138.11.) Although the auction was well-attended, the U.S. government was the only bidder and won the property for $26,800 (less than its assessed value of $34,100).
With local cemeteries in Alexandria County and Alexandria filling rapidly with war dead, Quartermaster General of the United States Army
United States Army
The United States Army is the main branch of the United States Armed Forces responsible for land-based military operations. It is the largest and oldest established branch of the U.S. military, and is one of seven U.S. uniformed services...
Montgomery C. Meigs
Montgomery C. Meigs
Montgomery Cunningham Meigs was a career United States Army officer, civil engineer, construction engineer for a number of facilities in Washington, D.C., and Quartermaster General of the U.S. Army during and after the American Civil War....
proposed using 200 acres (80.9 ha) the Arlington estate as a cemetery. The first burial there was made on May 13, 1864. United States Secretary of War
United States Secretary of War
The Secretary of War was a member of the United States President's Cabinet, beginning with George Washington's administration. A similar position, called either "Secretary at War" or "Secretary of War," was appointed to serve the Congress of the Confederation under the Articles of Confederation...
Edwin M. Stanton
Edwin M. Stanton
Edwin McMasters Stanton was an American lawyer and politician who served as Secretary of War under the Lincoln Administration during the American Civil War from 1862–1865...
approved the establishment of a military cemetery on June 15, 1864, creating Arlington National Cemetery. By the end of the war in April 1865, more than 16,000 people had been buried at Arlington. In September 1866, a memorial and a burial vault (containing the remains of 2,111 U.S. and Confederate soldiers who died at the First Battle of Bull Run
First Battle of Bull Run
First Battle of Bull Run, also known as First Manassas , was fought on July 21, 1861, in Prince William County, Virginia, near the City of Manassas...
, Second Battle of Bull Run
Second Battle of Bull Run
The Second Battle of Bull Run or Second Manassas was fought August 28–30, 1862, as part of the American Civil War. It was the culmination of an offensive campaign waged by Confederate Gen. Robert E. Lee's Army of Northern Virginia against Union Maj. Gen...
, and along the Rappahannock River
Rappahannock River
The Rappahannock River is a river in eastern Virginia, in the United States, approximately in length. It traverses the entire northern part of the state, from the Blue Ridge Mountains in the west, across the Piedmont, to the Chesapeake Bay, south of the Potomac River.An important river in American...
) were constructed in Lee's former rose garden on the mansion's east side to honor unknown soldiers who had died during the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
.
Suit by Lee's heirs
Robert E. Lee made no attempt to restore his title to Arlington before his death in 1870. Mary Lee died in 1873, having returned to the house a few months before her death. Too upset at its condition, she refused to enter and left after just a few moments.In April 1874, Robert E. and Mary Lee's eldest son, George Washington Custis Lee
George Washington Custis Lee
George Washington Custis Lee , also known as Custis Lee, was the eldest son of Robert E. Lee and Mary Anna Custis Lee...
, petitioned Congress for payment for the Arlington estate. Lee argued that tax sale of the entire property (rather than just that portion needed to pay the tax debt) amounted to confiscation and was unconstitutional. He also argued that the tax collectors' refusal to accept payment made the proceedings null and void. Finally, he asserted that the federal government would only be able to secure a life interest
Life interest
A life interest is some form of right, usually under a trust, which lasts only for the lifetime of the person benefiting from that right. A person with a life interest is known as a life tenant....
in the property (in other words, seize it only as long as Mary Lee lived) and could not assert title to the estate without the consent of the state of Virginia. He offered not to litigate the seizure of Arlington if paid. Lee's petition was referred to the United States House Committee on the Judiciary
United States House Committee on the Judiciary
The U.S. House Committee on the Judiciary, also called the House Judiciary Committee, is a standing committee of the United States House of Representatives. It is charged with overseeing the administration of justice within the federal courts, administrative agencies and Federal law enforcement...
on April 6, but it was not acted on.
In April 1877, Lee filed suit in Alexandria County circuit court to eject the U.S. government from Arlington. His suit named, among others, Frederick Kaufman (a civilian in the United States Department of War
United States Department of War
The United States Department of War, also called the War Department , was the United States Cabinet department originally responsible for the operation and maintenance of the United States Army...
who oversaw Arlington National Cemetery) and R.P. Strong (a U.S. Army officer who supervised the portion of Arlington which had become an Army post). Almost a thousand others were named in the suit, all of them former African American slaves who had been allowed to form a settlement known as Freedmen's Village on part of the estate. On July 6, United States Attorney General
United States Attorney General
The United States Attorney General is the head of the United States Department of Justice concerned with legal affairs and is the chief law enforcement officer of the United States government. The attorney general is considered to be the chief lawyer of the U.S. government...
Charles Devens
Charles Devens
Charles Devens was an American lawyer, jurist and statesman. He also served as a general in the Union Army during the American Civil War.-Early life and career:...
filed a writ of certiorari asking that the case be transferred to the United States Circuit Court for the Eastern District of Virginia
United States District Court for the Eastern District of Virginia
The United States District Court for the Eastern District of Virginia is one of two United States district courts serving the Commonwealth of Virginia...
, a request which the federal court approved three days later. On July 16, Devens filed a motion to have Lee's suit dismissed on the grounds that the Constitution made the federal government immune
Sovereign immunity in the United States
Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort...
to suits at law (unless it gave its consent). Lee filed a demurrer
Demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word demur means "to object"; a demurrer is the document that makes the objection...
, pointing out that the government had taken the contradictory position of being a private buyer in a tax sale and yet asserting sovereign immunity as if its purchase were a governmental act. On March 15, 1878, the circuit court held that not only did the court have jurisdiction to decide the issue but that the lawsuit presented a controversy over facts which should be decided by a jury. A jury trial was held January 24-30, 1879, in Alexandria. The jury found for Lee, concluding that the demand to accept payment only in person violated the Constitution's due process
Due process
Due process is the legal code that the state must venerate all of the legal rights that are owed to a person under the principle. Due process balances the power of the state law of the land and thus protects individual persons from it...
guarantees.
The federal government asked on April 6, 1879, that the jury verdict be set aside on the basis of the Supreme Court's ruling in Carr v. United States, 98 U.S. 433, (a decision handed down on March 3, after the jury's verdict had been reached). Carr v. United States involved a case where the city of San Francisco, California
California
California is a state located on the West Coast of the United States. It is by far the most populous U.S. state, and the third-largest by land area...
, transferred title to property within the city to the federal government even though a private citizen claimed title to the land. The Supreme Court reaffirmed in Carr that the federal government cannot be sued without its consent, that a suit against an officer or agent of the federal government does not bind the government itself, and that courts do not have jurisdiction over title suits against the federal government's officers and agents. Only when property has been transferred by the courts does a private citizen establish a right to establish or reclaim rights to title. The circuit court held that much of the decision in Carr was dicta
Dictum
In United States legal terminology, a dictum is a statement of opinion or belief considered authoritative though not binding, because of the authority of the person making it....
and reaffirmed the jury decision.
Two appeals were made to the U.S. Supreme Court. The first was by the United States government itself, the second was made by the government on behalf of Kaufman and Strong. The question was whether the title actually transferred to the federal government. If yes, then Lee had no claim; but if not, then Lee had standing to sue to reclaim his title to the land. To determine this, the Court first had to rule out any other grounds for a suit and then whether the tax sale actually transferred the title.
Majority ruling
Associate Justice Samuel Freeman MillerSamuel Freeman Miller
Samuel Freeman Miller was an associate justice of the United States Supreme Court from 1862–1890. He was a physician and lawyer.-Early life and education:...
wrote the decision for the majority, joined by Associate Justices Stephen Johnson Field
Stephen Johnson Field
Stephen Johnson Field was an American jurist. He was an Associate Justice of the United States Supreme Court of the United States Supreme Court from May 20, 1863, to December 1, 1897...
, John Marshall Harlan
John Marshall Harlan
John Marshall Harlan was a Kentucky lawyer and politician who served as an associate justice on the Supreme Court. He is most notable as the lone dissenter in the Civil Rights Cases , and Plessy v...
, Stanley Matthews, and Samuel Blatchford
Samuel Blatchford
Samuel Blatchford was an Associate Justice of the Supreme Court of the United States from April 3, 1882 until his death.-Early life:...
. Most of Miller's ruling was technical.
After reviewing the facts of the case, Miller presented the two critical questions in the case: 1) Were there other grounds for a suit other than transfer of title in error, and 2) whether the tax sale had actually transferred title. The members of the Court were agreed that there no errors regarding interpretation of the law by the circuit court, in the jury instructions, or in the documents of the tax sale. But, citing Bennett v. Hunter, 72 U.S. 326 (1869), (which had involved the nearby Abingdon estate
Abingdon (plantation)
Abingdon was an 18th- and 19th-century plantation that the prominent Alexander, Custis, Stuart, and Hunter families owned. The plantation's site is now located in Arlington County in the U.S...
); Tacey v. Irwin, 85 U.S. 549 (1873); and Atwood v. Weems, 99 U.S. 183 (1878), the majority reaffirmed that a tax collector's refusal to accept payment was the equivalent of payment. The majority considered whether a rule had been properly adopted by the tax commissioners to accept payment only from the title holder him or her self, and found that it had properly been adopted. However, the majority found that denial of a taxpayer's right to pay through an agent was improper:
- ...
[T]he commissioners, having in the execution of the law acted upon a rule which deprived the owner of the land of an important right, a right which went to the root of the matter, a right which has in no instance known to us or cited by counsel been refused to a tax-payer, the sale made under such circumstances is invalid, as much so as if the tax had been actually paid or tendered.
The government claimed that prior Court rulings on tax payment regulations were not applicable because the 1862 the law specifically required payment to be made in person, but the Court disagreed and distinguished its previous decisions as being based on the 1862 law and its 1863 amendments. The government also claimed that the law did not permit payment to be made between the announcement of the tax sale and the date of the sale if the government were the purchaser. But the majority pointed out that this created a contradiction: How could the title holder know that the government was the purchaser until the actual purchase had occurred? This made no sense, and subsequently that section of the law was invalid.
The Court next considered whether payment had been attempted. Relying on Cooley v. O'Connor, 79 U.S. 391 (1870), the majority noted that nothing in the law or the Constitution indicated that the government's title to land "should have any greater effect as evidence of title than in the case of a private purchaser, nor why it should not be subject to the same rules in determining its validity, nor why the payment or tender of the tax, interest, and costs, should not be made by an agent in the one case as in the other." Since there was uncontested evidence that Lee had attempted to make payment in full, the tax should have been considered paid.
But did sovereign immunity bar any challenge to the government's title, once title had been transferred? Justice Miller engaged in a lengthy historical review of the privilege of sovereign immunity, its roots in English
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
and common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, its acceptance in Colonial America, its enshrinement in the Constitution, and its growing acceptance by the courts of the United States. But the Lee lawsuit was against Kaufman and Strong as individuals, not just the United States government. The government argued that title in the Arlington estate was held by the government, not these officers, and thus was immunized against suit. The Court, citing Meigs v. M'Clung's Lessee 13 U.S. 11 (1815), concluded there was no difference whether the officers were in possession of the land themselves or whether they held the land as agents of the government. The Court relied heavily on Osborn v. Bank of the United States
Osborn v. Bank of the United States
Osborn v. Bank of the United States, 22 U.S. 738 , was a case set in the Banking Crisis of 1819, during which many banks, including the Second Bank of the United States, demanded repayment for loans which they had issued on credit that they did not have. This led to an economic downturn and a...
, 22 U.S. 738 (1824), in which officers of the state of Ohio (rather than the state itself) were sued but the actual party affected was the sovereignly immune state. The majority reaffirmed the statement of principle on Davis v. Gray: "Where the State is concerned, the State should be made a party, if it can be done." The Court agreed that much of the holding in Carr v. United States was dicta, and could not be relied upon by the government.
The government also claimed that since Arlington had been put to a lofty public use (a cemetery and a fort), Lee should not be able to disturb title to it after so long a period of time. But the Court strongly disagreed, arguing that the Fifth Amendment
Fifth Amendment to the United States Constitution
The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...
made no such distinction. In ringing language, the majority upheld Lee's right against deprivation of property without due process of law:
- The defence 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 possessed no such power. Not only no such power is given, but it is absolutely prohibited, both to the executive and the legislative, to deprive any one of life, liberty, or property 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 impunity. All the officers of the government, 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 between them and the government; and the docket of 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 cannot give a remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without lawful authority, without process of law, and without compensation, 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 government which has a just claim to well-regulated liberty and the protection of personal rights.
The decision of the circuit court was affirmed.
Dissent
Associate Justice Horace GrayHorace Gray
Horace Gray was an American jurist who ultimately served on the United States Supreme Court. He was active in public service and a great philanthropist to the City of Boston.-Early life:...
wrote a dissent, which was joined by Chief Justice
Chief Justice of the United States
The Chief Justice of the United States is the head of the United States federal court system and the chief judge of the Supreme Court of the United States. The Chief Justice is one of nine Supreme Court justices; the other eight are the Associate Justices of the Supreme Court of the United States...
Morrison Waite
Morrison Waite
Morrison Remick Waite, nicknamed "Mott" was the seventh Chief Justice of the United States from 1874 to 1888.-Early life and education:...
and Associate Justices Joseph P. Bradley, and William Burnham Woods
William Burnham Woods
William Burnham Woods was an American jurist, politician, and soldier.-Early life and career:Woods was born on August 3, 1824 in Newark, Ohio. He was the older brother of Charles R. Woods, another future Civil War general. He attended college at both Western Reserve University and Yale...
.
Justice Gray extensively reviewed the facts of the case. Then Gray asserted the critical principle in the case: "The sovereign is not liable to be sued in any judicial tribunal without its consent. The sovereign cannot hold property except by agents." Like the majority, the dissenters also provided a lengthy history of the right of sovereign immunity, but underscoring the uniform inviolability of the right. Citing United States v. Clarke, 33 U.S. 436 (1834), the dissent reasserted that a lawsuit against the United States must be brought under the explicit authority of an act of Congress or the courts have no jurisdiction over it. Gray also reviewed the authority of private citizens to bring suit in the United States Court of Claims
United States Court of Claims
The Court of Claims was a federal court that heard claims against the United States government. It was established in 1855 as the Court of Claims, renamed in 1948 to the United States Court of Claims , and abolished in 1982....
.
To permit Lee's suit, Gray argued, would open the United States to a multitude of suits over title to land it held. The cases cited by the majority (such as United States v. Peters, Osborn v. Bank of United States, Meigs v. M'Clung, and Davis v. Gray) were improperly cited, Gray argued, as in each case "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." It was one thing for the Court to eject or dispossess officers or agents of the United States from land or funds; such actions, Gray concluded, continued to immunize the United States government from suits. Carr v. United States reaffirmed this principle, he concluded. To blur the distinction between officer and state or to assume or imply it without the state's consent, as the majority does, Gray said, would leave the sovereign immunity right in shambles.
Once the United States asserted that it was a party to the case, Gray concluded, the courts had no jurisdiction and should not have heard the case. Once the United States interposed itself between Kaufman and Strong and the plaintiff, the courts should not have ordered trial to proceed against them, either. Because the courts had no jurisdiction, the dissenters refused to address the issue of the validity of the title.
Assessment
The U.S. government faced the daunting prospect of having to disinter 17,000 bodies and transfer Arlington back to the Lee family. Additionally, much of the estate had been developed into the new Army post of Fort MyerFort Myer
Fort Myer is a U.S. Army post adjacent to Arlington National Cemetery in Arlington County, Virginia, across the Potomac River from Washington, D.C. It is a small post by U.S...
. After several months of difficult negotiations, Lee and the government settled on a sale price of $150,000. Congress enacted legislation funding the purchase on March 3, 1883; Lee signed over the title on March 31; and the title transfer was recorded on May 14, 1883.
United States v. Lee is one of three important federal sovereign immunity cases, and the most important doctrinally. The case showed just how sharply divided the Supreme Court was over the scope and legitimacy of sovereign immunity in the United States. The majority opinion questioned whether it was appropriate in a republic, and suggested that it had been adopted in an unprincipled and careless way by previous court decisions. The decision was the first to refuse to extend sovereign immunity to officers of the state acting as individuals, a principle which would later become known as the "stripping doctrine". The decision also revised the Supreme Court's "nominal party rule," first enunciated in Osborn and Davis. In those cases, the Court had salvaged federal and state sovereign immunity by creating a bright-line legal fiction that the suits were against government officers in their capacity as individuals and not acting on behalf of the state. The Court in Lee reaffirmed this "nominal party rule" but only with five votes—which proved to be its last use. In Louisiana ex rel. Elliot v. Jumel, 107 U.S. 711 (1882), a majority of the Court upheld the "nominal party rule" but refused to invoke it on an technicality. In New Hampshire v. Louisiana, 108 U.S. 76 (1883), the Court abandoned the "nominal party rule" in favor of a "real party interest test." The Court openly rejected the rule (without necessarily overturning its previous decision) in In re Ayers, 123 U.S. 443 (1887). Nevertheless, the Court did not overturn Lee but rather distinguished it narrowly and continued to affirm its basic principles in Jumel and Ayers.
United States v. Lee also sharply limited the sovereign immunity doctrine by implying that it could be subordinated to other, more fundamental rights such as the Fifth Amendment's prohibition against "takings" without just compensation and due process. Justice Miller's ringing endorsement of the rights of individuals is seen as endorsing the concept that, in the United States, the people are the sovereign—not the government. In Tindal v. Wesley, 167 U.S. 204 (1897), the Supreme Court expressly extended the Lee decision to "takings" suits against states (which had previously been barred by the Court's constitutional interpretations).
Although Lee seemed to invite a full-scale reconsideration of the doctrine of sovereign immunity, subsequent Supreme Court decisions in Larson v. Domestic & Foreign Commerce Corporation, 337 U.S. 682 (1949) and Malone v. Bowdoin, 369 U.S. 643 (1962) sharply limited the impact of the Lee Court's decision. Larson and Malone specifically carved out only two areas in which an officer of the United States may be sued: 1) If the officer acts outside her or his legally prescribed scope of authority, or 2) If the officer acts in a way that is unconstitutional.
Interestingly, the Lee decision also created a contradiction within the Supreme Court's approach to federal-state relations. Article I, Section 8, Clause 17 of the United States Constitution bars the federal government from acquiring the land of any state except with that state's express permission. In United States v. Penn, 48 F. 669, 670 (C.C.E.D. Va. 1880), a circuit court had held that the federal government held no jurisdiction over Arlington National Cemetery because it had not obtained Virginia's permission to hold title to the land. The Lee Court never addressed this issue, and in fact came to the opposite conclusion (its decision to return the property to the Lee family being founded on other grounds).
At least one legal historian has concluded that Lee also laid an early foundation for the doctrine of executive immunity.
In many ways, the Lee decision is also more famous for its defense of the rights of citizens than its sovereign immunity jurisprudence. Miller's defense of the rights of the individual ("No man...is above the law...") is considered "elegantly elaborated" by lawyer Lawrence Walsh. Constitutional law scholar Louise Weinberg
Louise Weinberg
Louise Weinberg is Professor of Law and holder of the Bates Chair at the University of Texas School of Law. She teaches and writes in the fields of constitutional law and federal courts....
called the language "ringing". Another legal scholar called the language "remarkable" and emphatic.