Page:The Green Bag (1889–1914), Volume 18.pdf/529

 494

THE GREEN BAG

law. In a line of cases extending from United States v. Peters, 5 Cranch 115, the Supreme Court has given a most elaborate exposition of the doctrine which declares that here, as in the mother country, every official, from the President of the United States down to a tax collector, is under the same responsibility for every act done with out legal justification as any other citizen; and that the legality of any such act when assailed may be tested in the ordinary tri bunals under the law of the land. The most notable, however, of all of these cases is that of United States v. Lee, 106 U. S. p. 169, in which Mr. Justice Miller, — in my humble judgment the greatest expounder of the Constitution since Chief Justice Marshall, — in speaking for the Court said: "In such cases there is no safety for the citizen, except in the protection of the judicial tribunals, for rights which have been invaded by officers of the government professing to act in its name. . . . What is that right as es tablished by the verdict of the jury in this case? It is the right to the possession of the homestead of plaintiff. A right to recover that which has been taken from him by force and violence, and detained by the strong hand. This right being clearly es tablished, we are told that the court can proceed no further because it Appears that certain military officers, acting under the orders of the President, have seized this estate and converted one part of it into a military fort and another into a cemetery. It is not pretended, as the case now stands, that the President had any lawful authority to do this, or that the legislative body cculd give him any such authority except upon payment of just compensation. The de fense 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 prop erty 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 par ticipates in its functions is only the more strongly bound to submit to that suprem acy, and to observe the limitations which it imposes upon the exercise of the authority which it gives." I can not doubt that these golden sentences, whose lightest words are weighty, will stand forth for all time as the profoundest expression ever made of the basic principle of the supremacy of the law peculiar to lands inhabited by Anglican peoples. When we consider that the subject-matter of the suit in question was the ancestral estate of the vanquished chief of a fallen cause, an estate which for years had been held by the government of the victors as a resting-place for its dead, it is impossible to over estimate the moral grandeur of the judgment which gave it back with the ashes of the dead because, in the midst of civil war, it had not been taken away according to the law of the land. Is it going too far to say that the five who joined in that judgment — Miller, Field, Harlan, Matthews, and Blatchford —• are entitled to be ranked among the ideal jurists of the world? The four who dissented from that judgment recorded, in clear and emphatic terms, their willingness to establish here the principle of the droit administratif as it exists in the continental nations. As stated heretofore, the essence of that administrative law is the right of the official, when the legality of his act is chal lenged in a civil tribunal under the ordinary law of the land, to deny its jurisdiction upon the ground that the validity of such acts- can not be tested in that manner. In the case in question the Attorney -General made that