This was an appeal from the Comptroller General's decision, on
the trial of which, by consent of the Attorney General, Sparhawk
was considered as Plaintiff.
There was a verdict and judgment nisi for the Commonwealth, when
Ingersol obtained a rule to show cause why a new trial should not
be granted.
The case was this: Congress, perceiving that it was the
intention of the British army to possess themselves of
Philadelphia, and being informed that considerable deposits of
provisions &c. were made in that city, entered into a
resolution on the 11th of April, 1777, that 'a Committee should be
appointed to examine into the truth of their information; and, if
it was found true, to take effectual measures, in conjunction with
the Pennsylvania Board of War, to prevent such provisions from
falling into the hands of the enemy,'
On the 13th of the same month, the Pennsylvania Board of War, in
aid of this resolution, addressed a circular letter to a number of
citizens in each ward of the city, requesting them 'to obtain from
every family a return of the provisions &c. then in possession,
and the number of persons that composed the families respectively,
in order that proper measures might be pursued for removing any
unnecessary quantity of supplies to a place of security.' At the
same time, it was mentioned, that 'this proceeding was not intended
to alter or divest the property in the articles removed; but, on
the contrary, that the same should be at all times liable to the
order of the respective owners, provided they were not exposed to
be taken by the enemy.'
That no precaution might be omitted upon this occasion, the
Pennsylvania Board of War, on the succeeding day, desired General
Schuyler to prevent the introduction of further supplies, and to
adopt the most effectual means for preventing the departure of the
waggons which were then in the city, and for procuring as many more
as
Page 1 U.S.
357, 358
would be necessary to transport, not only the public stores, but
also such private effects, as it might be thought expedient to
remove. Several intercepted letters having encreased the
apprehensions of Congress, on the 16th of April, 1777, they
resolved, 'that it be recommended to the President and Members of
the executive authority of this State, to request the commanding
officer of the continental forces in this city, to take the most
effectual means, that all provisions, and every other article,
which, by falling into the hands of the enemy, may aid them in
their operations of war against the United States, or the loss of
which might distress the continental army, be immediately removed
to such places, as shall be deemed most convenient and secure.'
This recommendation was transmitted by the Executive Council to the
Pennsylvania Board of War, who, on the 18th of April, passed an
order, that 'houses, barns, stores, &c. should be hired or
seized, for the reception of such articles, as should be sent out
of the city by their direction or that of Congress;' and,
accordingly, a very considerable quantity of property was soon
removed to Chesnut Hill, and placed under the care of Messrs.
Loughead and Barnhill; who gave receipts to the owners, promising
'to restore what belonged to them respectively, or to deliver the
same to their respective orders.' The enemy, not approaching so
rapidly as was expected, a considerable part of this property had,
accordingly, been re-delivered to the order of the owners, before
the city was entered by the British troops; when, however, the
depot at Chesnut Hill fell, likewise, into their hands, and, with
it, 227 barrels of flour, belonging to Sparhawk; being the
remainder of 323 barrels that had been originally removed thither,
in consequence of the above mentioned proceedings. For the price of
these 227 barrels of flour, with interest from the time of their
being taken, Sparhawk exhibited an account, amounting to L919 6 6
against the public; upon which the Comptroller General reported to
the Executive Council, that 'neither the principal, the interest,
nor any part of either, could be allowed;' and against this
decision the present appeal was entered. The question, therefore,
on the motion for a new trial, was, whether this claim, under all
the circumstances, ought to be admitted? and it was argued on the
28th of April, by Ingersol, for the Appellant; and the Attorney
General, for the Commonwealth. On the part of the Appellant, it was
premised, that, in a season of peace, the law had so great a regard
for private property, that it would not authorize the least
violation of it; no, not even for the general good of the whole
community. 1 Black. Com. 139. And, it was contended, that, although
a state of war entitled one nation to seize and lay waste the
property of another, and their respective subjects to molest the
persons, and to seize the effects of their opponents, yet, as
between a state and its own citizens, the principle, with respect
to the rights of property, is immutably the same, in war as well as
peace. Sometimes, indeed, the welfare of the public
Page 1 U.S.
357, 359
may be allowed to interfere with the immediate possessions of an
individual; but these must be cases of absolute necessity, in which
every good citizen ought chearfully to acquiesce: Yet, even then,
justice requires, and the law declares, that an adequate
compensation should be made for the wrong that is done. For, the
burthen of the war ought to be equally borne by all who are
interested in it, and not fall disproportionately heavy upon a few.
These general principles are fortified by the explicit language of
the Declaration of Rights, Sect. 8. which provides, that 'no part
of a man's property can be justly taken from him, or applied to
public uses, without his own consent, or that of his legal
Representatives.' In the present case the Appellant did not
voluntarily surrender his property, nor was it taken from him by
any legislative sanction.
That there are, however, some instances where an individual is
not entitled to redress for injuries committed on his property in
the prosecution of public objects, must be admitted; but these
instances are carefully distinguished by the writers on the law of
nations; Vatt. B. 3. Sect 232. and are in no degree analogous to
the foundation of the Appellant's claim. If, indeed, the property
in question had remained in Philadelphia, and had there been seized
by the enemy, there could have been no reason to claim an
indemnification from the public; but, when it was taken out of the
possession of the owner by the executive authority of the State,
and removed to a distant place, with a promise of restoring it on
demand, the subsequent capture being clearly a consequence of this
interference, the government is bound to indemnify the Appellant
for his loss.
It is unnecessary to travel into an investigation of the various
modes, by which an individual may seek for redress and
compensation, where his property has been divested for the use of
the public. The right is clear, and that every right must have a
remedy, is a principle of general law, which the Legislature of
Pennsylvania has expressly recognized; directing, by an early Act
of Assembly, the settlement of the accounts of the Committee and
Council of Safety; and prescribing in what manner the claims of
individuals should be settled and discharged. 2 State Laws 144. To
these bodies, the Pennsylvania Board of War succeeded; the business
of the Board was transacted in the same way; and there can be no
good reason, why the obligations which they incurred, should not be
as fairly and fully adjusted and satisfied. The Legislature,
indeed, must have regarded the matter in the same light; for,
finding that the former law was inadequate to its objects, another
was enacted to appoint a Comptroller General, and to authorize him
'to liquidate and settle, according to law and equity, all claims
against the Commonwealth, for services performed, monies advanced,
or articles furnished, by order of the legislative, or executive
powers, for the use of the same, or for any other purpose
whatever.' This authority embraced the Appellant's claim, and the
Comptroller General has erred in deciding against it.
Page 1 U.S.
357, 360
The Attorney General, for the Commonwealth, stated the case to
be briefly this; that the Pennsylvania Board of War, acting under
the recommendations of Congress, removed, among other things, a
quantity of flour belonging to the Appellant, in order to prevent
its falling into the hands of the enemy: declaring, however, that
the removal was not intended to divest the property, but that the
flour should still be subject to the order of the owner, provided
it was not exposed to a capture. The flour being afterwards seized
by the British troops at the place where the Pennsylvania Board of
War had deposed it, two questions arise: 1st. Whether this Court
has power to grant relief to the Appellant, if any ought to be
granted. And, 2ndly. Whether, on principles of law and equity, he
is entitled to be relieved. I. Considering this as a case
immediately between Sparhawk and the Commonwealth, it is clear,
that a sovereign is not amenable in any Court, unless by his own
consent; I Black. Com. 242. And, therefore, unless the Commonwealth
has expressly consented, there is nothing in the constitution of
this Court, which can warrant their sustaining the present
proceedings. What then is the evidence of consent? We are refered
to the law appointing the Comptroller General. Let us examine this
law; and as the case comes by appeal from the Comptroller, if it
appears that he had no authority to liquidate and settle Sparhawk's
claim, it follows, as a necessary consequence, that this Court,
also, has no jurisdiction for that purpose. By the Act of Assembly
which gives the appeal from the Comptroller General's decision to
the Supreme Court, 3 State Laws 444. this is restricted to such
accounts as he shall settle in pursuance of the preceding Act, by
which he was appointed; 3 State Laws 57. and there, we find, the
specific object of his authority to be, the liquidation and
settlement of all claims against the Commonwealth, 'for services
performed, monies advanced, or articles furnished, by order of the
legislative, or executive powers, &c.' In order, therefore, to
found the jurisdiction of the Comptroller, two things must concur-
1st. that the claim be for services performed, monies advanced, or
articles furnished; and 2ndly. that the debt has been incurred by
order of the legislative or executive power. Now, in the present
case, the Appellant makes no claim for services performed, or money
advanced, and it is impossible for the most ingenious fancy to
bring his demand within the description of articles furnished. It
is conceded, indeed, that the law does not, in peace, acknowledge
any authority to violate the rights of property or to interfere
with the possessions of individuals; but there is in war a
transcendant power, which is connected with the fundamental
principle of all governments, the preservation of the whole; and
the interest of private persons may certainly, in that season, be
sacrificed, ne quid respublica detrimenti capiat. The loss, of
which the Appellant complains, was occasioned by the exercise of
this power. As a tort it cannot be charged against the
Commonwealth; for, a declaration stating it so would be cause of
demurrer: And, therefore, as it is only
Page 1 U.S.
357, 361
in cases of contract, either express or implied, that the
Comptroller General is authorized to act, there is no jurisdiction
which can relieve him, but that of the Legislature. But, in the
next place, the claim does not originate upon any order of the
legislative, or executive, power, agreeably to the terms of the
act. The order for the removal of the provision, &c. to Chesnut
Hill was issued by the Pennsylvania Board of war, not in obedience
to the Executive Council, but in pursuance of a recommendation from
Congress, which the Executive Council merely transmitted to the
Board. Even, indeed, if the Executive Council had undertaken to
direct this proceeding, a question would still arise, whether they
had a right to do so? for, the act of Assembly, providing for the
settlement of claims against the public by order of the Executive
Council, though not in express words, yet, by a necessary
implication, must intend a legitimate order, founded upon the
constitutional powers of that department, or issued under the
authority of some law. The Executive Council cannot otherwise
charge the public; without the legislative sanction they cannot
erect magazines, or any other public buildings; nor enter into the
most trifling contract; of which, indeed, a recent proof appears,
in the refusal of the General Assembly to pay for the arms of the
State, that had been placed in the Supreme Court, or to discharge
the additional expence of the Triumphal Arch, which had been
incurred by the direction and upon the faith of the Executive
Council. II. But, it is further to be shown; that, even supposing
the Comptroller General, or this Court upon appeal, had the power
of granting Sparhawk's claim, yet, that the claim itself is not
founded in law or equity, and ought, therefore, to be rejected. If
the Appellant's claim is just, he ought either to urge it against
the immediate agent in the wrong which he has sustained, or travel
to the source, and demand reparation from Congress. The
Commonwealth of Pennsylvania cannot be liable; for, the persons who
took and kept the provisions, &c. at Chesnut Hill, acted under
the authority of the Board of war, who, it is true, were appointed
by the Executive Council; but, in this instance, proceeded entirely
upon the recommendation of Congress, which the Executive Council
did not, and could not legally, enjoin or enforce. It is possible,
however, that, in strict law, Messrs. Loughead and Barnhill would
have been liable as trespassers, had not the Legislature interfered
to protect persons in their situation from vexatious prosecutions:
3 State Laws. 178. And this act, although it relates immediately to
individuals, shows, generally, that the temporary bodies, by whose
orders such individuals were governed, are, likewise, to be
exempted from suits, on account of their conduct in the service of
their country. But, on what ground can redress be at all expected
on this occasion? The removal of the Appellant's property arose
from the necessity of the war; it was not done to convert the flour
to the public use, nor to deprive the owner of the advantages of
it, any farther than the paramount consideration of the public
welfare required.
Page 1 U.S.
357, 362
The object was to secure it from the depredations of the enemy;
and, that it, afterwards, fell into their hands, was an event
involuntary, and merely accidental, in which case Vattel expressly
says, no compensation shall be made. Vatt. lib. 3. sect. 232. If
the Appellant is entitled to relief, every farmer whose cattle have
been driven from his plantation to avoid the enemy; every man whose
liquors have been staved, or provisions destroyed, upon the
approach of the British troops; all the owners of Tynicum island,
which was deluged by a military mandate; and, in short, every one
whose interests have been affected by the chance of war, must also,
in an equal distribution of justice, be effectually indemnified.
What nation could sustain the enormous load of debt which so
ruinous a doctrine would create! Ingersoll, in reply. With respect
to the first point made on the part of the Commonwealth, it is not
contended, for the Appellant, that, generally speaking, citizens
may sue the State; but only that every Government, which is not
absolutely despotic, has provided some means (in England, for
instance, by petition in Chancery) to obtain a redress of injuries
from the Sovereign. As to the second point; The Pennsylvania Board
of war acted under the authority of the Executive Council; and the
principal is responsible for the agent. When the Appellant's
property was taken out of his own custody, the Government stood in
his place, and undertook all the consequent risques. The
individuals, who were charged with the care of it, are protected by
the act of Assembly; but the State, upon every principle of
justice, is still liable for the loss; and the authority of the
Comptroller General was intended and has always been understood, to
be competent for granting the satisfaction which is now claimed.
The Chief Justice, after stating the case, delivered the opinion of
the Court as follows:
M'Kean, Chief Justice. On the circumstances of this case, two
points arise: 1st, Whether the appellant ought to receive any
compensation, or not? And 2ndly, Whether this Court can grant the
relief which is claimed? Upon the first point we are to be governed
by reason, by the law of nations, and by precedents analogous to
the subject before us. The transaction, it must be remembered,
happened flagrante bello; and many things are lawful in that
season, which would not be permitted in a time of peace. The
seizure of the property in question, can, indeed, only be justified
under this distinction; for, otherwise, it would clearly have been
a trespass; which, from the very nature of the term, transgressio,
imports to go beyond what is right. 5 Bac. Abr. 150. It is a rule,
however, that it is better to suffer a private mischief, than a
public inconvenience; and the rights of necessity, form a part of
our law.
Page 1 U.S.
357, 363
Of this principle, there are many striking illustrations. If a
road be out of repair, a passenger may lawfully go through a
private enclosure 2 Black. Com. 36. So, if a man is assaulted, he
may fly through another's close. 5 Bac. Abr. 173. In time of war,
bulwarks may be built on private ground. Dyer. 8. Brook. trespass.
213. 5 Bac. Abr. 175. and the reason assigned is particularly
applicable to the present case, because it is for the public
safety. 20 Vin. Abr. (trespass) B. a. sec. 4. fo. 476. Thus, also,
every man may, of common right, justify the going of his servants,
or horses, upon the banks of navigable rivers, for towing barges,
&c. to whomsoever the right of the soil belongs. 1 Ld. Raym.
725. The pursuit of Foxes through another's ground is allowed,
because the destruction of such animals is for the public good, 2
Buls. 62. Cro. I. 321. And, as the safety of the people is a law
above all others, it is lawful to part affrayers in the house of
another man. Keyl. 46. 5 Bac. Abr. 177. 20 Vin. Abr. fo. 407. sec.
14. Houses may be razed to prevent the spreading of fire, because
for the public good. Dyer. 36. Rud. L. and E. 312. See Puff. lib.
2. c. 6. sec. 8. Hutch. Mqr. Philos. lib. 2. c. 16. We find,
indeed, a memorable instance of folly recorded in the 3 Vol. of
Clarendon's History, where it is mentioned, that the Lord Mayor of
London, in 1666, when that city was on fire, would not give
directions for, or consent to, the pulling down forty wooden
houses, or to the removing the furniture, &c. belonging to the
Lawyers of the Temple, then on the Circuit, for fear he should be
answerable for a trespass; and in consequence of this conduct half
that great city was burnt.
We are clearly of opinion, that Congress might lawfully direct
the removal of any articles that were necessary to the maintenance
of the Continental army, or useful to the enemy, and in danger of
falling into their hands; for they were vested with the powers of
peace and war, to which this was a natural and necessary incident:
And, having done it lawfully, there is nothing in the circumstances
of the case, which, we think, entitles the Appellant to a
compensation for the consequent loss.
With respect to the second point; This Court has authority to
confirm, or alter, any proceedings, that come properly before the
Comptroller General; but if he had no jurisdiction, we can have
none. It appears then, that his power is expressly limited to
claims 'for services performed, monies advanced, or articles
furnished,' by order of the Legislature, or the Executive Council.
And, as he has no right to adjudge a compensation from the State
for damages, which individuals may have suffered in the course of
our military operations, we are of opinion, that we could grant no
relief, even if the Appellant was entitled to it.
By the Court: Let the rule be discharged; and the Judgment for
the Commonwealth be made absolute.
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