David Josiah Brewer

“ Plaintiffs also averred that they were lawfully possessed of the land by inheritance from their ancestor, and that the United States, without process of law, and without legal right so to do, took the same for public use without any compensation, and established defendant in possession thereof wrongfully and unjustly. By virtue of these allegations they contend that there is involved in this case the construction of a treaty, as well as the application of the Constitution of the United States, which forbids the taking of private property for public use without just compensation. ”

“ Any action by the government is matter of defense, and may never be presented by the defendant. He has a right to go to trial on the sufficiency of the title presented by the plaintiffs, and need neither plead nor prove the rightfulness of his possession by whomsoever it may have been given to him until they have shown that they have a title to the premises. ”

“ Ct. Rep. 397, is closely in point. In that case Mr. Justice Gray, speaking for the court, after referring to tests laid down in prior cases, observed (p. 508, L. ed. p. 513, Sup. Ct. Rep. p. 399) :
'The record in the present case falls far short of satisfying any such test. ”