In the case of the United States et al. rs. Lee (106 U. S. Rs. 196), the action was ejectment for the recovery of the Arlington estate. At the entry of the action in the Circuit Court, the Attorney-General filed a suggestion that for many years the premises had been in the possession of the United States, with claim of title, and appropriated to public uses; and he objected to the jurisdiction of the court, and prayed that all proceedings be dismissed. To this suggestion a demurrer was filed and sustained. At the trial the defendant claimed under a sale to the United States. Under the instruction of the court, the jury found the sale to have been illegal and void; and returned a verdict for the plaintiff, on which judgment was rendered. The case was then carried on writs of error to the Supreme Court of the United States, where the judgment of the court below was affirmed by a majority of five against a minority of four of the justices. The minority of the court sustained the objections taken by the Attorney-General, and stated their reasons as follows:

"The principles upon which we are of opinion that the court below had no authority to try the question of the validity of the title of the United States in this action, and that this court has therefore no authority to pass on that question, may be briefly stated. The sovereign is not liable to be sued in any judicial tribunal without its consent. The sovereign cannot 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 behalf, is to maintain an action to recover possession of the property against the sovereign; and to invade 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 cannot be sued. . . These principles appear to us to be axioms of public law." (P. 226.)

The possession of the sovereign by his officers is as unassailable here as it is in England. But from the difference in the institutions of the two countries, their laws differ as to what is the possession of the sovereign; and therefore as to that the decisions in either country cannot be authorities in the other. In England the national sovereignty is in "the wearer of the crown"; that is, in the person of the king, "in whom the majesty of the public resides." His officers in their official action represent his personal authority, as an attorney represents the personal authority of his principal. And thus the official posses

sion of the officer, whether lawful or unlawful, is the possession of the king, which cannot be legally inquired into, because "the sovereign cannot be sued."

In this country we have no personal sovereign, but instead, a supreme authority vested in the People of the United States. This authority is impersonal, and incapable of personal representation. Its will is declared only by the law. Hence the phrase and the fact that ours is a government of law. And as no one can be the agent of the law for anything unlawful, it follows that the sovereign, the People of the United States, cannot be made a party to any transaction by the illegal act of any of their officers. So that any violation of law by an officer is his unauthorized and unofficial act, for which he is liable individually.

The dissenting opinion does not dispute the opinion of the court, that the sale of the land was illegal. Then it divested no title from the plaintiff, and vested none in the People of the United States, who were not, and could not be made, a party to the illegal action of their officers. The possession of Kaufman and Strong, therefore, was not official, and was not the possession of the sovereign, but their own personal possession. And as it barred the plaintiff from his legal rights, it was a violation of law, for which they were liable as individuals. In their opinion the court said, "The case before us is a suit against Strong and Kaufman, as individuals, to recover possession of property." And they cited four previous cases, in which the court maintained its jurisdiction over actions of ejectment brought against officers holding lands under the government, viz., Meigs vs. M'Lungs, lessee, 9 Branch, 11; Wolcox vs. Jackson, 13 Peters, 498; Brown vs. Huger, 21 How, 305, and Grizar vs. M'Dowell, 6 Wall, 363.

The rules which the dissenting opinion claims to be authoritative here as "axioms of public law" belong to the municipal law of England. They are the relics of the earliest and rudest times of its feudal law, when its purpose was to maintain power, and not to administer rights. Under it the Norman Kings depopulated districts to make forests for the royal huntinggrounds. The subject whose land was taken had no redress but that petition which belongs to the relation of sovereign and subject, and which the king might grant or refuse. And so is the

letter of the English law to-day; for under the statute 23 and 2 Victoria, if the queen refuses to grant her fiat, then, in the word: of the dissenting opinion, "the suppliant is without remedy. (P. 235.)

The modern reason for the rule is that the sovereign should decide whether the subject's suit for injury done him may con sist with the public interests. But the result is, that in feuda England private property may be taken for public use without compensation; while in other countries, from the earliest times. jurists have held it to be a rule of "universal law" that private property could not be taken for public use, without compensa tion. The civil law established the principle in ancient Rome, and has since extended it over continental Europe. Our Consti tution adopted it from the civilization of its time, and it belonged to Eastern civilization. For when the Moors first established themselves in the Spanish cities, they proclaimed as their law, for Moslem and Christian, that private property taken for public use should be paid for.

The reasons of the minority for concurring in the decision of the four previous cases in ejectment, and for non-concurring in the decision of the Arlington case, are stated as follows:

"The view on which this court appears to have constantly acted, which reconciles all its decisions and is in accord with the English authorities is this: the objection to the exercise of jurisdiction over the sovereign or his property is in the nature of a personal objection, which if not suggested by the sovereign may be presumed not to be insisted on," etc. (P. 249.)

But exemption from suit is the sovereign's normal state. It is the incident of his sovereignty, and as absolute as that. It is not conditioned on objections to be made by him, and they cannot be required of him; and whenever it appears, either by the record or the evidence, that the suit is in legal effect against the sovereign, the objection to the suit is the want of jurisdiction in the court, and that is not "in the nature of a personal objection," but one the court must take notice of, and which bars its further action.

Jurisdiction over the United States is not a subject for presumption, for it can be created only by an act of Congress. Chief Justice Marshall said, in the voice of the court:

"As the United States are not suable of common right, the party who institutes such a suit must bring his case within the authority of some act of Congress, or the court cannot exercise jurisdiction over it." (S. Peters, 444.)

If jurisdiction over the sovereign depends upon an act of Congress, then in all cases the action of the court and of the Attorney-General must be irrelevant to it.

The opinion of the majority of the court in the Arlington case maintains the law as previously held. But the division on the bench, of four against five, brings uncertainty into the future, and makes the protection of the citizen against official power and wrong weaker than it was before.

EDWARD G. LORING.

THE AMERICAN ELEMENT IN FICTION.

CONTEMPORARY criticism will have it that, in order to create an American Literature, we must use American materials. The term "Literature" has, no doubt, come to be employed in a loose sense. The London "Saturday Review" has (or used to have until lately) a monthly two-column article devoted to what is called "American Literature," three-fourths of which were devoted to an examination of volumes of State Histories, Statistical Digests, Records of the Census, and other such works as were never, before or since, suspected of being literature; while the remaining fourth mentioned the titles (occasionally with a line of comment) of whatever productions were at hand in the way of essays, novels, and poetry. This would seem to indicate that we may have-nay, are already possessed of an American Literature, composed of American materials, provided only that we consent to adopt the "Saturday Review's" conception of what literature is.

Many of us believe, however, that the essays, the novels, and the poetry, as well as the statistical digests, ought to go to the making up of a national literature. It has been discovered, however, that the existence of the former does not depend, to the same extent as that of the latter, upon the employment of exclusively American material. A book about the census, if it be not American, is nothing; but a poem or a romance, though written by a native-born American, who, perhaps, has never crossed the Atlantic, not only may, but frequently does, have nothing in it that can be called essentially American, except its English and, occasionally, its ideas. And the question arises whether such productions can justly be held to form component parts of what shall hereafter be recognized as the literature of America.