Since 1847, pursuant to the act of Congress of the preceding
year, the State of Virginia has been in
de facto
possession of the County of Alexandria, which, prior thereto,
formed a part of the District of Columbia. The political department
of her government has, since that date, uniformly asserted, and the
head of her judicial department expressly affirmed, her title
thereto. Congress has, by more than one act, recognized the
transfer as a settled fact. A resident of that county, in a suit to
recover the amount by him paid under protest for taxes upon his
property there situate is therefore estopped from raising the
question as to the validity of the retrocession.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This suit was brought to determine the validity of the
retrocession by Congress to the State of Virginia of that part of
the District of Columbia, as originally constituted, which was
ceded by Virginia to the United States. The plaintiff in error was
the plaintiff in the court below. The case upon which he relies is
thus set forth in his declaration:
Page 92 U. S. 131
In pursuance of the Constitution of the United States, Virginia,
by an act of her legislature of Dec. 3, 1789, ceded to the United
States that part of her territory subsequently known as the County
of Alexandria. Congress passed an act accepting the cession.
Maryland ceded to the United States the County of Washington, and
Congress accepted that cession also. The two counties constituted a
territory ten miles square, which Congress set apart as the seat of
the government of the United States and organized as the District
of Columbia, over which the Constitution of the United States
required that Congress should exercise exclusive legislation in all
cases whatsoever. Thereafter, on the 9th of July, 1846, Congress,
in violation of the Constitution, passed an act purporting to
authorize a vote to be taken by the people of Alexandria County to
determine whether the county should be retroceded to the State of
Virginia and declaring that in case a majority of the votes should
be cast in favor of retrocession, the county should be retroceded
and forever relinquished in full and absolute right and
jurisdiction. A majority of the votes were cast for retrocession,
whereupon, without any further action by Congress, the State of
Virginia passed an act declaring that the county was reannexed and
formed a part of the state. Since that time, the state has assumed
to exercise full jurisdiction and control over the county and to
authorize the election of officers for the county, among whom is
one known as the Collector for the Township of Washington. The
defendant was elected such collector, and assumed to exercise the
duties of his office. The state has also assumed to enforce the
assessment and collection of taxes upon persons and property in the
county. The plaintiff resides in the county, and owns a large
amount of real estate and other property there. The defendant
alleged that an assessment had been made upon this property; that
there was payable to him as such collector upon the assessment the
sum of $165.18, and he demanded payment. In the event of refusal to
pay, he would have sold the property pursuant to the law of the
state. To prevent the sacrifice which this would have involved, the
plaintiff paid the money under protest, notifying the defendant at
the time that he regarded the exaction as illegal and unauthorized,
upon the ground that the County of
Page 92 U. S. 132
Alexandria was not within the jurisdiction of the state of
Virginia, but that it was within the District of Columbia. He avers
that the act of Congress of 1846, before mentioned, everything done
under it, and the law of Virginia reannexing the county to the
state and extending her jurisdiction over it are contrary to the
Constitution of the United States and illegal and void.
The therefore claims to recover the amount so paid to the
collector.
The defendant demurred. The court below sustained the demurrer
and gave judgment for the defendant.
The question presented for our determination is whether there
was error in this ruling.
The law of prescription applies to nations with the same effect
as between individuals. Lawrence's Wheat. 303, 304; Vattel, b. 2,
c. 11, secs. 141, 146, 147, 149.
In cases involving the action of the political departments of
the government, the judiciary is bound by such action.
Williams v. Suffolk Ins.
Co., 13 Pet. 420;
Garcia v.
Lee, 12 Pet. 511;
Kennet v.
Chamberlain, 14 How. 38;
Foster
v. Nelson, 2 Pet. 209;
Nabob of the Carnatic v.
East Ind. Co., 2 Ves.Jr. 60;
Luther v.
Borden, 7 How. 1;
Rhode
Island v. Massachusetts, 12 Pet. 714.
The judiciary recognizes the condition of things with respect to
the government of another country which once existed as still
subsisting, unless the political department of its own government
has decided otherwise.
Kennet v.
Chambers, 7 How. 38.
For certain purposes, the states of the Union are regarded as
foreign to each other.
Buckner v.
Finley, 2 Pet. 590;
Warden v. Arrel, 2
Wash. (Va.) 298.
Under certain circumstances, a constitutional provision may,
like a forfeiture, be waived by a party entitled to insist upon it.
6 Hill 48; 24 Wend. 337; 3 Comst. 199, 511; 18 Barb. 585.
The acts of an officer
de facto, within the sphere of
the powers and duties of the office he assumes to hold, are as
valid and binding with respect to the public and third persons as
if they had been done by an officer
de jure. Elwood v.
Monk, 6 East, 235;
King v. Corp. Bedford, 6 East 368;
Tucker v. Aiken, 7 N.H. 134;
Fowler v. Babe, 9
Mass. 231;
Com. v.
Page 92 U. S. 133
Fowler, 10
id. 291;
People v.
Collins, 7 J.R. 549. These propositions were referred to in
the discussion at the bar, and we have not overlooked them.
But we do not invoke their aid, and have found it unnecessary to
consider the effect of either of them in this case.
We shall place our judgment upon another and a different ground,
and shall confine our further remarks to that subject.
The State of Virginia is
de facto in possession of the
territory in question. She has been in possession, and her title
and possession have been undisputed, since she resumed possession
in 1847 pursuant to the act of Congress of the preceding year. More
than a quarter of a century has since elapsed. During all that
time, she has exercised jurisdiction over the territory in all
respects as before she ceded it to the United States. She does not
complain of the retrocession. The political departments of her
government, by their conduct, have uniformly asserted her title,
and the head of her judicial department has expressly affirmed it.
McLaughlin v. Bank of Potomac, 7 Gratt. 68. The United
States have not objected. No murmur of discontent has been heard
from them; on the contrary, Congress, by more than one act, has
recognized the transfer as a settled and valid fact. Act of July 5,
1848, c. 92, 9 Stat. 244; Act of Feb. 2, 1871, c. 33, 16 Stat. 402;
Rev.Stat.U.S., sec. 1795. Both parties to the transaction have been
and still are entirely satisfied. If the objection taken by the
plaintiff in error were maintained in the length and breadth
insisted upon, serious consequences would follow. In that view, a
part of them would be that all laws of the state passed since the
retrocession, as regards the County of Alexandria, were void; taxes
have been illegally assessed and collected; the election of public
officers, and the payment of their salaries, were without warrant
of law; public accounts have been improperly settled; all
sentences, judgments, and decrees of the courts were nullities, and
those who carried them into execution are liable civilly, and
perhaps criminally, according to the nature of what they have
severally done.
A government
de facto, in firm possession of any
country, is clothed, while it exists, with the same rights, powers,
and duties, both at home and abroad, as a government
de
jure. It may
Page 92 U. S. 134
send ambassadors and make treaties. Such treaties bind the
nation and descend in full force upon any succeeding government
that may be established. The assailants of a king
de facto
in England are liable to be punished for treason. Such was the rule
of the common law, and the celebrated statute of Henry VII only
reaffirmed it. The legislative and judicial authorities called into
existence may proceed as if the prior government had not been
displaced. All municipal functions may be performed without regard
to the origin of the new polity. Cromwell's ambassadors were
received everywhere. Hale accepted from him the place of a judge of
the common pleas. After the Restoration, Charles II made him Chief
Baron of the Exchequer and subsequently Chief Justice of the King's
Bench. The Code Napoleon was the work of a ruler whose government
rose amid the ruins of a revolution and was subsequently
overthrown. The governments of both these rulers were doubtless
regarded by the other governments of Europe as only
de
facto. Whether they were or were not
de jure also is
a question which in this case it is unnecessary to consider.
In all cases where the United States have been called upon to
recognize the existence of the government or the independence of
any other country, they have looked only to the fact, and not to
the right. Such has been the uniform course of our government. 1
Kent's Com. (Comst. ed.), 170; Vattel, b. 2, c. 12, secs. 196, 197;
id., b. 4, c. 2, secs. 14, 18; 1 Hale's P.C. 101; Foster's
Crown Law, pp. 397, 399; Camp. Lives of Ch.Justices, 526;
Lawrence's Wheat. 49, note;
id. 471, note.
The plaintiff in error is estopped from raising the point which
he seeks to have decided. He cannot, under the circumstances,
vicariously raise a question nor force upon the parties to the
compact an issue which neither of them desires to make.
In this litigation we are constrained to regard the
de
facto condition of things which exists with reference to the
County of Alexandria as conclusive of the rights of the parties
before us.
Judgment affirmed.