that payment of the taxes after advertisement would be received from no one but the owner of the land appearing in person to pay them,that if offered by his tenant, his agent, or his attorney in fact duly appointed, it would be rejected,-it would be an idle ceremony for any of these to make the offer; and an actual tender by such persons, as it would certainly not be accepted, need not be made. That the commissioners, having in the execution of the law acted upon a rule which deprived the owner of the land of an important right,—a right which went to the root of the matter, a right which has in no instance known to us, or cited by counsel, been refused to a tax-payer,-the sale made under such circumstances is invalid, as much so as if the tax had been actually paid or tendered. The proposition is thus expressed by this court at its last term in the case of Hills v. Albany Exchange Bank, as the result of the cases above cited: "It is a general rule that when the tender or performance of an act is necessary to the establishment of any right against another party, this tender or offer to perform is waived or becomes unnecessary when it is reasonably certain that the offer will be refused."

The application of these decisions to the case before us is denied by counsel on two grounds. The first of these is that the case of Bennett v. Huntert was decided on the language of the act of 1862, and that due attention was not given to the peculiar language of the substituted section 7 of the act of 1863, which says that "when the owner of the land shall not on or before the day of sale appear in person before said board of commissioners and pay the amount of the tax, with 10 per centum interest thereon, with the costs of advertising the same, or request the same to be struck off to a purchaser for a less sum than two-thirds of the assessed value of said several lots or parcels of ground, the said commissioners shall be authorized at said sale to bid off the same for the United States at a sum not exceeding two-thirds of the assessed value thereof." It is argued from this that no right to pay the tax under this statute existed except by the owner in person.

The reply to this is that in the cases of Bennett v. Hunter and Tacey v. Irwin, the sales that were under consideration are clearly shown by the reports to have been made after the act of 1863, and it is believed that no sale for taxes was made under the original tax law until after that amendment was passed, and that all the officers charged with the duty of collecting that tax were aware of the language of the

new seventh section. It is quite apparent from the opinion of Chief Justice CHASE, who spoke for the court in the case of Bennett v. Hunter, and who was secretary of the treasury when both statutes were enacted, that he understood well that he was deciding the very question raised by the requirement to appear in person in the latter act, and intended to decide that, notwithstanding this, the owner had a right to pay the tax before sale by an agent or a friend. Besides, there was no other provision of either the act of 1862 or the amendment of 1863 which gave the owner the right to pay at all between the advertisement and the sale. The third section of the original act gave the right to pay for 60 days after the tax commissioners had fixed the amount of the tax, and no longer; and the seventh section of that act, as well as its substitute of 1863, gave the right to redeem after the sale was made.

It is clear, therefore, that Bennett v. Hunter, Tacey v. Irwin, and Atwood v. Weems were decisions construing the substituted seventh section of 1863.

In the case of Turner v. Smith, 14 Wall. 553, this court, in construing the change in the language of the seventh section, held that its object was to authorize the United States, by its commissioners, to bid more than the tax and costs, which they could not do before, and to limit them to two-thirds of its value, and that after the amount of costs and tax had been bid the United States should not bid against a purchaser named by the owner. It was probably in reference to this that the act required the personal presence of the owner before the commissioners to name a purchaser against whom the United States should not compete after it was secured by a bid which covered the tax, interest, and costs.

The other point raised is, that the right to pay the taxes between the advertisement and day of sale in any other mode than by personal appearance of the owner before the commissioners, did not exist in cases where the United States became the purchaser. As it could never be known until the day of sale whether the United States would. become the purchaser or not, it would seem that the duty of the commissioners to receive the taxes was to be exercised without reference to the possibility of the land being struck off to the United States.

In the case of Cooley v. O'Connor, 12 Wall. 391, it was held that the act contemplated that a certificate of sale should be given when the United States became the purchaser, as in other cases, and no reason is shown why that certificate should have any greater effect as evidence of title than in the case of a private purchaser, nor why it

should not be subject to the same rules in determining its validity,
nor why the payment or tender of the tax, interest, and costs, should
not be made by an agent in the one case as in the other.
It is proper
to observe that there was evidence, uncontradicted, to show that Mr.
Fendall appeared before the commissioners in due time and offered
on the part of Mrs. Lee, in whom the title then was, to pay the taxes,
interest, and costs, and was told that the commissioners could receive
the money from no one but the owner of the land in person. In all
this matter we do not see any error in the rulings of the court, nor
any reason to doubt that the jury were justified in finding that the
United States acquired no title under tax-sale proceedings. In ap-
proaching the other question which we are called on to decide, it is
proper to make a clear statement of what it is.

The counsel for plaintiffs in error, and in behalf of the United States, assert the proposition, that though it has been ascertained by the verdict of the jury, in which no error is found, that the plaintiff has the title to the land in controversy, and that what is set up in behalf of the United States is no title at all, the court can render no judgment in favor of the plaintiff against the defendants in the action, because the latter hold the property as officers and agents of the United States, and it is appropriated to lawful public uses. This proposition rests on the principle that the United States cannot be lawfully sued without its consent in any case, and that no action can be maintained against any individual without such consent, where the judgment must depend on the right of the United States to property held by such persons as officers or agents for the government. The first branch of this proposition is conceded to be the established law of this country and of this court at the present day; the second, as a necessary or proper deduction from the first, is denied.

*In order to decide whether the inference is justified from what is conceded, it is necessary to ascertain, if we can, on what principle the exemption of the United States from a suit by one of its citizens is founded, and what limitations surround this exemption. In this, as in most other cases of like character, it will be found that the doctrine is derived from the laws and practices of our English ancestors; and while it is beyond question that from the time of Edward the First until now the king of England was not suable in the courts of that country, except where his consent had been given on petition of right, it is a matter of great uncertainty whether prior to that time he was not suable in his own courts and in his kingly character as other per

sons were.

We have the authority of Chief Baron COMYN, 1 Dig. 132, "Action, C 1," and 6 Dig. 67, "Prerogative;" and of the Mirror of Justices, c. 1, § 3, and c. 5, § 1, that such was the law; and of BRACTON and Lord HOLT, that the king never was suable of common right. It is certain, however, that after the establishment of the petition of right about that time, as the appropriate manner of seeking relief where the ascertainment of the parties' rights required a suit against the king, no attempt has been made to sue the king in any court except as allowed on such petition. It is believed that this petition of right, as it has been practiced and observed in the administration of justice in England, has been as efficient in securing the rights of suitors against the crown in all cases appropriate to judicial proceedings, as that which the law affords in legal controversies between the subjects of the king among themselves.

"If the mode of proceeding to enforce it be formal and ceremonious, it is, nevertheless, a practical and efficient remedy for the invasion by the sovereign power of individual rights." U. S. v. O'Keefe, 11 Wall. 178.

There is in this country, however, no such thing as the petition of right, as there is no such thing as a kingly head to the nation, or to any of the states which compose it. There is vested in no officer or body the authority to consent that the state shall be sued except in the law-making power, which may give such consent on the terms it may choose to impose. The Davis, 10 Wall. 15. Congress has created a court in which it has authorized suits to be brought against the United States, but has limited such suits to those arising on contract, with a few unimportant exceptions.

What were the reasons which forbid that the king should be sued in his own court, and how do these reasons apply to the political body corporate which we call the United States of America? As regards the king, one reason given by the old judges was the absurdity of the king's sending a writ to himself to command the king to appear in the king's court. No such reason exists in our government, as process runs in the name of the president and may be served on the attorney general, as was done in the case of Chisholm v. State of Georgia. Nor can it be said that the dignity of the government is degraded by appearing as a defendant in the courts of its own creation, because it is constantly appearing as a party in such courts, and submitting its rights as against the citizens to their judgment.

*2 Dall. 419.

Mr. Justice GRAY, of the supreme court of Massachusetts, in an able and learned opinion which exhausts the sources of information on this subject, says: "The broader reason is that it would be inconsistent with the very idea of supreme executive power, and would endanger the performance of the public duties of the sovereign, to subject him to repeated suits as a matter of right, at the will of any citizen, and to submit to the judicial tribunals the control and disposition of his public property, his instruments and means of carrying on his government in war and in peace, and the money in his treasury." Briggs v. The Light Boats, 11 Allen, 162. As we have no person in this government who exercises supreme executive power or performs the public duties of a sovereign, it is difficult to see on what solid foundation of principle the exemption from liability to suit rests. It seems most probable that it has been adopted in our courts as a part of the general doctrine of publicists, that the supreme power in every state, wherever it may reside, shall not be compelled, by process of courts of its own creation, to defend itself from assaults in those courts.

It is obvious that in our system of jurisprudence, the principle is as applicable to each of the states as it is to the United States, except in those cases where by the constitution a state of the Union may be sued in this court. Railroad Co. v. Tennessee, 101 U. S. 337; Railroad Co. v. Alabama, Id. 832.

That the doctrine met with a doubtful reception in the early history of this court may be seen from the opinions of two of its justices in the case of Chisholm v. State of Georgia, where Mr. Justice WILSON, a member of the convention which framed our constitution, after a learned examination of the laws of England and other states and kingdoms, sums up the result by saying: "We see nothing against, but much in favor of, the jurisdiction of this court over the state of Georgia, a party to this cause." 2 Dall. 461. Chief Justice JAY also considered the question as affected by the difference between a republican state like ours, and a personal sovereign, and held that there is no reason why a state should not be sued, though doubting whether the United States would be subject to the same rule. 2 Dall. 78. The first recognition of the general doctrine by this court is to be found in the case of Cohens v. Virginia, 6 Wheat. 380.

The terms in which Chief Justice MARSHALL there gives assent to the principle does not add much to its force. "The counsel for the defendant," he says, "has laid down the general proposition that a

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