In 1882 was decided the famous case of United States v. Lee.69 The facts upon which the case was based were these: The Robert E. Lee homestead, the Arlington Estate, had been for ten years in possession of the United States under a title acquired by sale for non-payment of taxes. The plaintiff, heir of Robert E. Lee, claiming that this title was an invalid one, brought suit in ejectment against the federal officers in charge of the property to recover possession of it. The United States, by its Attorney General, intervened for the purpose of setting up its title and moving that the suit be dismissed as being in effect a suit against itself. Upon appeal to the Supreme Court of the United States that court, upon the first hearing, eight judges sitting, divided equally upon the point whether the suit was to be regarded as a suit against the United States and, therefore, beyond judicial cognizance, and ordered a second hearing before a full court of nine justices. By a bare majority of five to four, it was held upon the second hearing that, though the property was claimed by the United States, the suit might be maintained against the federal officers in possession of the property to determine whether or not the federal title which they alleged to support them in their possession was a valid one, and that, if not valid, they might be ejected. Justice Miller rendered the majority opinion.

68 10 Wall. 15; 19 L. ed. 875.

69 106 U. S. 196; 1 Sup. Ct. Rep. 240; 27 L. ed. 171.

After a review of the previously decided cases, in which especial emphasis was laid upon the cases of United States v. Peters,70 Meigs v. McClung,71 and Osborn v. Bank of the United States72 which, it was declared, governed the case at bar, Justice Miller went on to state what was after all to be considered the real ground upon which the suit was sustained. This was, that it was not in consonance with the general principles of American political philosophy to hold that the citizen could not be protected against an unconstitutional act of his State.

"It is not pretended, as the case now stands," said he, "that the President had any lawful authority to do this, nor that the legislative body could give him any such authority, except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone 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 that no such power is given, but that it is absolutely prohibited, both to the executive and the legislative, to deprive anyone of life, liberty or property without due process of law, or to take private property without just compensation. . . . No man in this county 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 that law and are bound to obey it. . . . It cannot 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 verdict 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 peculiarly 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 unsuccessful party can interpose an absolute veto upon that judgment by the production of an order of the Secretary of War, which that officer had no more authority to make than the humblest private citizen."

70 5 Cr. 115; 3 L. ed. 53. 71 9 Cr. 11 3 L ed. 639. 72 9 Wh. 738; 6 L. ed. 204.