The Davis

16]

APPEAL from the Circuit Court for the Southern District of New York, the case being thus:

In 1865, Simeon Draper, treasury agent of the United States, shipped from Savannah a quantity of cotton on the schooner Davis, of which one Kemplen was master, to be carried and delivered to him, the said cotton agent of the United States, or his assigns, in New York. For this, the master gave the usual bills of lading, and was to run freight at the rate of fifteen cents a ton per day. On the voyage, the vessel met with a disaster, and she and her cargo were saved from total loss by the meritorious service of one Douglas and others. The vessel was carried by Douglas and the others, her salvors, to a place of safety, and left to find her way into the port of New York. Immediately on her arrival, and before any of the cotton was delivered to the agent, Douglas libelled the vessel and cargo, and a writ being issued, the marshal took possession of them under it. The United States appeared by attorney as claimant of the cotton, and interposed the defence that it was not liable to salvage under the circumstances.

The District Court admitted that the services were salvage services, and fixing their worth at a certain sum, entered a decree against the vessel for its proportion of the same; but 'inasmuch as the cotton saved was in possession of and claimed by the United States, as the United States intervened, claiming the said cotton, and setting up that no lien existed, and that no attachment could be made against it in possession of the United States,' dismissed the libel as to the cotton. The Circuit Court reversed the decree, so far as it relieved the cotton, affirming it in other respects.

From this decree of the Circuit Court the United States appealed, and two questions were raised by the record:1st. Whether personal property of the United States, on board a vessel for transportation from one point to another, was subject to a lien for salvage services rendered in saving the property.

2d. Under what circumstances, if any, could the lien be enforced, if any lien existed.

Mr. Hoar, Attorney-General, and Mr. W. A. Field, Assistant Attorney-General, for the United States:

In The Siren, this court, after saying that it is a familiar doctrine of the common law, that the sovereign cannot be sued in his own courts without his consent; that this doctrine is equally applicable to the supreme authority of the United States; that, therefore, they cannot be subjected to legal proceedings at law or in equity without their consent, and that whoever institutes such proceedings must bring his case within the authority of some act of Congress, says:

'The same exemption from judicial process extends to the property of the United States, and for the same reasons. As justly observed by the learned judge who tried this case, there is no distinction between suits against the government directly and suits against its property.'

The case of The Siren was decided in accordance with the doctrine, that,

'Although direct suits cannot be maintained against the United States, or against their property, yet when the United States institute a suit, they waive their exemption so far as to allow a presentation by the defendant of set-off, legal and equitable, to the extent of the demand made or property claimed, and when they proceed in rem, they open to consideration all claims and equities in regard to the property libelled.'

The United States, in answer to the libel, here excepted to the jurisdiction of the District Court over the cargo of cotton, because it was the property of the United States, and could not be made subject to process in that court, nor to the compulsory exaction of salvage therefrom, by the process or decree of that court, and that exception and claim in this suit the United States have never abandoned.

The cases on this question are all collected in the opinion of the Supreme Court of Massachusetts, in Briggs et al. v. Light Boats, and they show by a decisive weight of authority that, in the absence of any statute permitting it, the property of the United States is not liable to judicial process in rem.

Messrs. Donohue, Beebe, Cooke, and Flagg, contra.

Mr. Justice MILLER delivered the opinion of the court.