
    GRAHAM’S CASE. John Graham v. The United States.
    
      On the Proofs.
    
    
      Three steam vessels are suspeded of being engaged in an expedition against Nicaragua, forbidden by the neutrality laws. They are “ detained ” in port by the President’s order.
    
    The detention of a vessel in port by the President, under the act of 30th April, 1818, 3 Stat. L.. p. 447, is not a talcing and use of private property for public purposes within the meaning of the Constitution, but is an arrest by “ due p-ocess of law.”
    
    Mr. Blake and Mr. Carlisle for the claimant:
    This suit is brought to recover compensation for the detention by the government of the United States, in the port of New York, of three steamships, belonging to the claimant, for the space of sixty-six days.
    In the spring of 1855, claimant was the owner of three steamships, the Ocean Bird, of 2,000 tons, the United States, of 1,500, and the St. Lawrence, of 1,000 tons. The three vessels were at the port of New York, and were being fitted up to run between New York, Havana, and Mexico, in a line for which claimant was to be agent in New York. They were to be delivered at Havana in May, 1855.
    In April, 1855, claimant made an agreement with Fletcher Webster, H. S. Kinney, and Joseph W. Fabens, to charter to them one of the vessels for a voyage from New York to San Juan de Nicaragua, for which .they were to pay him $20,000, and half the receipts for the passengers and freight in excess of $25,000.
    Under this charter he prepared the steamer United States for the proposed voyage, and she was ready to perform it on the 7th May.
    Soon after the charter was made representations were made to the President of the United States and the Secretary of State by persons being, or claiming to be, representives of the republic of Nicaragua, to the effect that Kinney, Webster, and Fabens were about to engage in a hostile expedition against Nicaragua, in violation of the laws of the United States; and they were indicted in the southern district of New York. They demanded trial upon the indictments, and after two adjournments had been made at the instance of the United States district attorney, they were, on the 7th May, 1855, discharged on their own recognizances, no proof whatever appearing against them. No other j udicial proceedings were ever taken.
    
      On the 7th May claimant applied to the collector for a clearance for the United States for San Juan. The collector, by direction of the President, refused it.
    A few days afterwards the other steamers, Ocean .Bird and St. Lawrence, being ready for sea, he applied for clearances for them to Havana. The collector, by direction of the President, refused to grant them. .
    On the 25th May a fleet of armed vessels, commanded by a naval officer, acting under direction of the President, took position near the three steamships, and blockaded them, the officer in command stating that he was sent there to prevent, by force if necessary, the departure of any of the vessels from the wharf.
    The vessels were thus detained, by the refusal of clearance and the use of an armed force, until the 10th of July, 1855.
    The reason assigned for this detention was the belief entertained by the President that the vessels were about to proceed upon an unlawful enterprise.
    The contemplated voyage to San Juan of the United States was abandoned by the claimant a few days after the interference of the government, and he applied only for permission to send his vessels to Havana, which was refused.
    The claimant thrice applied to the Secretary of State for information as to the cause of the detention, and solicited an investigation, but was refused any direction or satisfaction.
    On the 10th and 11th July the vessels were cleared.
    The result of these proceedings was the loss of the use of the vessels for nearly two months, the entire derangement of all the claimant’s business, and ultimately his utter ruin.
    He now asks for compensation for the use of his vessels during the time they-were actually detained; the proofs show that this amounts to upwards of $180,000.
    All these proceedings had been taken and were ended by the 7th of May, and yet, on and after that date, without, as appears, any additional reason for believing that the voyage of the United States was illegal, the President ordered the detention of all three vessels ; and their release, on the 10th July was not induced by any fact not known to the government on the 7th May.
    I. This detention of Captain Graham’s ships was the act of the government, and not of the President or of Captain Boardman in their private capacities. It was undertaken under the 8th section of the act of Congress, passed April 80, 1818.
    
      The general rule of seizures by public officers for forfeitures for violations of laws of the United States is, that in case the party whose property is seized shall prove innocent, then that the officer making the seizure is personally liable therefor, unless he can establish probable cause. Seizures and detentions, under the act of 1818, fall under a different rule. Gelston v. Hoyt, 3 Wheat., 246.
    In other words, a seizure under the section becomes an act of the State, for which no one is liable except the State itself.
    This section allows the President, when, in his judgment, such a conjuncture occurs, to use force, without process of law, to detain vessels or expeditions. It may turn out that the vessel is guilty, and in such cas'e the seizure is justified, (for any one may seize for forfeiture at his peril,) or at most damnum absque injuria. But it may turn out that the vessel was innocent, and in such case a private person has been deprived of his property, without fault or liability of his own, by an act of the state, undertaken under the forms of law for the public good.
    II. The detention of Captain Graham’s ships has all the marks of an exercise, by the government, of the right of eminent domain.
    1. They were his private property, and he had done no act which subjected them to any seizure or detention whatever.
    2. They were taken for public purposes. The preservation of amicable relations with the States of Nicaragua.
    3. The temporary detention of the ships was a taking in the sense of the Constitution.
    “ The provision of the Constitution for compensation,” said Chief Justice Spencer, “ is declaratory of a great and fundamental principle of government, and any law violating that principle must be deemed a nullity, as it is against natural right and justice.” Bradshaw v. Rogers, 20 Johns., 103.
    The same point was early held in New Hampshire Bristol v. Newchester, 3 N. H., 535; Meredith v.' Plate Glass Company, 4 T, 794.
    Hence it follows that no technical meaning ought to be given to the word “ take ” in the Constitution.
    It is well settled by express decision, that a temporary detention of property is a taking entitling the owner to compensation. Wins-low et al. v. Gifford, 6 Cush., 327; Brigham v. Edmonds, 7 Gray, 359 ; and see Hooker v. Northampton, 14 Conn., 146.
    There is a large class of cases holding that the doctrine of compensation for the exercise of eminent domain does not extend to consequential damage. Of these eases, Radcliff v. The Mayor, 4 Comst., 195, and O'Connor v. Pittshury, 6 Harr., 187, are the strongest and most extreme. But no case can he found where the doctrine was applied to property which was itself the subject of the act causing the damage.
    III. The rule in Stranghan’s case, (1 C. Cls. R.,) classifies acts which, done by private persons, would be torts, into two divisions; first, those which raise implied contracts under the doctrine of eminent domain; and secondly, acts unavoidable and necessary for the public welfare. The case before us belongs necessarily to the former of these classes, for the foundation of the right of eminent domain is the public necessity. “ In places where it would be only convenient and not necessary/' says Mr. Justice Woodbury in West River Bridge v. Dix, 6 How., 546, “ I entertain strong doubts of its applicability.” And see Bloodgood v. W. R. R. R., 18 Wend., 9; Beekman v. Saratoga and 8. R. R., 3 Paige.
    The “ necessity ” spoken of in Straughan’s case must not be confounded with the doctrine known to the common law as the doctrine of necessity. It is an ancient and familiar rule that if a person pluck down a house to prevent the spread of fire¡ or throw goods from a barge to save the lives of passengers, he is not liable in damages. The Saltpetre Case, 12 Co., 13; Mouse’s Case, 12 Co., 63.
    
    But as Chief Justice Nelson says, “ Houses may be pulled down or bulwarks raised for the preservation and defence of the country without subjecting the person concerned to an action; and yet these are common cases, where the sufferers would be entitled to compensation from the national government within the constitutional principle.” Mayor of Neto York v. Lord, 17 Wend., 285, 291.
    “ The right of eminent domain, said the court of errors of New Jersey, is the right of the government to appropriate private property to public uses in case of necessity. The right of necessity is the right of individuals either singly or collectively, in case of overwhelming necessity, to violate or destroy private property.” Hale v. Lawrence, 13 Zabr., 714.
    
      “ There is an important distinction between that mere appropriation for public utility under a general State necessity, and which comes within the doctrine of urgent necessity, which for immediate preservation imperatively demands immediate action.” American Print Works v. Lawrence, 33 Zabr., 605. No case can be found in which the common law doctrine of necessity has been applied to a taking of property by the government for public uses.
    
      The Saltpetre case settles that the king may, for the defence of the realm, dig on private soil for the manufacture of gunpowder.
    Mouse’s case decides that trespass will not lie against a man who threw property from a barge in danger of foundering into the sea.
    
      Res Publica v. Sparhawk, 1 Dallas, 357, decides that government may require the removal of provisions (contraband of war) to a place where they can he protected against capture by the enemy.
    In the cases which arose out of the New York fire in 1837 it was decided—
    1. That under the statute of New York regulating the common law right of necessity in the case of fire, the owners of the buildings destroyed might recover for personal property belonging to them within the buildings. Mayor v. Lord, 17 Wend., 385; Lord v. The Mayor, 18 Wend., 126.
    2. But not persons having no interest or estate in the buildings. Mayor v. Stone, 20 Wend., 139; Same v. Same, 25 Wend., 157.
    3. And, finally, that no action at common law lies against the city of New York for personal property situated in buildings destroyed by its mayor under the statute. It was held by the court that the statute is not an exercise of the right of eminent domain, but a regulation of the common law right of necessity.
    The Solicitor, for the defendants :
    On the 20th of March, 1854, Mr. Marcoleta, minister of the republic of Nicaragua, addressed a communication to Mr. Marcy, then Secretary of State, protesting against the project which some citizens of the American Unioh had formed to colonize the Mosquito coast.
    The letter of Mr. Marcoleta encloses one from the minister of foreign relations of Nicaragua, February 9, 1854, calling the attention of Mr. Marcoleta to the fact that it had been announced in several newspapers of the United States, and through other channels, that a company formed of citizens of those States had purchased a great portion of the Mosquito territory from an Indian chief, who was called in derision sovereign of that tribe, for the purpose of planting there an American colony. He asserts that the so-called king of the Mosquito tribe belongs, with all said tribe, to the republic of Nicaragua, and that they are all subjects of his government, and protests against the purchase, and against any occupation which may be or has been attempted, on any plea or title whatever, without the consent of Nicaragua, in regard to any portion of its territory, and that it will repel such occupation, making use of all the means in its power to defend and maintain the sovereign rights of Nicaragua and the integrity of her territory.
    Again, May 4, 1854, Mr. Marcoleta addresses a letter to the. Secretary of State, stating that he is convinced that there existed in New York an association composed of American citizens called the “Central American Land and Mining Company,” whose object was the colonization and working of the lands, woods, and mines of nearly, if not all, the territory and coast of Mosquito.
    Two letters, dated February 24,1855, and March 5, 1855, respectively, from one Phillips to Corwin, were filed in the State Department. They disclose the claim by Kinney of supreme authority over the lands in Nicaragua and on the Mosquito coast, and his intention to evade the neutrality laws by organizing in this country, and arming beyond the limits of the United States.
    In a letter dated May 15, 1855, Mr. Marcoleta encloses to the Secretary of State a letter from H. L. Kinney to Captain O’Bryan, informing him that if he should raise two hundred men he should have a general’s commission in the new government that was to be formed in Central America.
    Mr. Marcoleta, in a letter of June 1,1855, to Mr. Marcy, advises him that Kinney was engaged in schemes to elude the American government, and warns the Secretary of State that should a landing in San Juan del Norte be ever effected by Colonel Kinney and his followers, he has reason to know that the lawless and profligate adventurers residing there would at once place the de facto government at his disposal.
    On the 8th day of October, 1855, Mr. Marcoleta informs the Secretary of State that Kinney had on the 6th of September, in the port of San Juan de Nicaragua, usurped the government of that place, and arrogated the exercise of military and civil authority.
    The government of Costa Pica, through its minister, Mr. Molina, also protested on the 13th of December, 1854, in a letter to Mr. Marcy, against the Kinney expedition.
    On the 26th day of April, 1855, the grand jury for the southern district of New York presented an indictment against Henry L. Kinney and Joseph W. Fabens, for a military enterprise against the republic of Nicaragua. Kinney entered into a recognizance for his appearance, which he forfeited.
    In his original petition, the claimant denounces the action of the President as “ without color of right and an unjustifiable and arbitrary exercise of power.”
    In his amended petition he alleges that “ the President claimed and assumed to act and he authorized thereby to take the aforesaid measures to prevent an apprehended violation of said treaties and laws.”
    The preliminary question, whether or not the President is justifiable, is an important one, and goes to the very gist of the action.
    The first case cited is that of Gelston v. Hoyt, 3 Wheaton, 246.
    This was an action of trespass originally brought in the Supreme Court of the State of New York, against the plaintiffs in error, who were the collector and surveyor of the port of New York. These officers, in the year 1810, seized, as forfeited to the United States, a ship with her tackle, apparel, &c., owned by the defendants in error. The act under which the seizure was made, and the libel filed, was that of 1794.
    The defendants interposed a plea in justification of the taking of the ship, that it was done under the orders of the President of the United States; but the court, Judge Story delivering the opinion, decided that the plea could not he sustained, because the President was authorized only to employ land or naval forces, and that he had no power to employ civil forces.
    The eighth section of the act of 1818 is the re-enactment in the precise words of the seventh section of the statute of 1794, which the court construed in the language quoted at p. 322.
    Tnis case is quoted to show that, in the event of a seizure under the eighth section of the act of 1818, where it is made by the land or naval forces, under an order of the President of the United States, it becomes an act of the government, and not of an individual. This is conceded. But how can the detention of a ship, believed to be engaged in an illegal enterprise, create an obligation to respond in damages 1 But the claimant’s ships were not seized. They were simply detained; and the proof is conclusive that the Kinney expedition was unlawful and dangerous to the public peace.
    
      Bradshaw v. Rogers, 20 John., 103, was an action of trespass for an unlawful taking of land as a substitute for a part of a turnpike road which was broken up and taken for a canal. The court decided, that the taking was without legislative authority, and that the act under which the defendants claimed to have taken the lands of the defendant was a nullity and against natural right, there being no promise for compensation.
    
      Brintal v. New Chester, 3 N. H., 524. This was a controversy between two incorporated towns, where a portion of the corporate propérty of two towns was appropriated to a new town organized by an act of the legislature. While asserting the right to compensation for lands taken for public use, it denies compensation in this case.
    
      Governor, &fc., of 'Plate Glass Manufacture v. Meredith, 4 Term, 794. This was an action upon the case for damages against certain paviors acting under commissioners appointed by an act of Parliament. The damage resulted from changing the grade, &c. The court decided that as the commissioners acted within their jurisdiction, there was no liability.
    
      Winslow v. Gifford et al., 6 Cushing, 337. This was an action of trespass for entering upon plaintiff’s close for the purpose of surveying and ascertaining the bounds of a public landing-place, having been forbidden so to enter by the plaintiffs. The entry was justified under an act of the legislature, which provided for surveys, &c., but did not provide for compensation. The court decided that the occupation of the land for the purpose of survey was not inconsistent with the tenth article of the Massachusetts bill of rights.
    
      Bingham et al. v. Edwards, 7 Gray, 359. This was an action of tort for breaking and entering the plaintiff’s close, &c. The defendant was a major general, acting under the authority of the governor of Massachusetts, and occupied the defendant’s land for a military encampment. Bigelow, J., says: “ Such a right cannot be exercised except under the authority of the legislature, expressed in clear and distinct terms, or by necessary implication, and with suitable provisions for compensation to the persons whose property may be so appropriated or injured. ■ Declaration of Rights, article 10.” The language of this article of the Massachusetts bill of rights differs from the constitutional provision. Its language is, “ taken or applied ” or “ appropriated.”
    
      Hooker v. The New Haven and Northampton Company, 14 Conn , 154. This was an action on the case for damages against a corporation which was charged with committing a permanent and continuing injury to the lands of the plaintiffs. There was no question of the taking of lands or property in this case.
    
      Radcliff’s Executors v. The Mayor of Brooklyn, 4 Comstock, 196. In this case there was a direct injury to the land of the plaintiff. His premises were undermined, and a part of his grounds was entirely lost. Was not this a direct injury to the property itself l Bronson, J., says : “ Although the testator’s property has suffered damages, I find no precedent for saying that it has been ‘ taken for public use within the meanirig of the Constitution.’ ” P. 198.
    
      O'Connor v. Pittsburg, 6 Harris, 187. This was an action to recover damages against the corporation of Pittsburg for injuries done to a cathedral by cutting down streets. Chief Justice Gibson says : “ The constitutional provision for the case of private property taken for public use extends not to the case of property injured or destroyed.” P. 190.
    
      West River Bridge Company v. Dix, 6 Howard, 536. In this ease the Supreme Court sustained the right of a legislature to extinguish a franchise. The reasoning of Woodbury, J., 546, as to the proper occasions for the condemnation of property for public use, has no application to a case similar to this.
    
      Bloodgood v. The Mohawk and Hudson Railroad Company, 18 Wend., 9. This was an action of trespass against a corporation. This case contains a learned discussion of principles which are now familiar and universally recognized as to the powers of legislatures to authorize corporations to take private property with compensation.
    The cases of Hale v. Lawrence and The American Print Works v. Lawrence, are cited. These cases involved the question whether certain officers designated by an act of the legislature of New York, who destroyed certain buildings to prevent the progress of the great fire of 1835, were justified by the exigency and by that act. The Supreme Court of New Jersey, after great discussion, gave judgment for the defendant, who was, at the time of the fire, mayor of New York.
    In the cases cited from Wendell, damages were given under a statute providing for the payment of damages where buildings were destroyed to arrest the progress of a fire.
    The Mouse Case, 12 Coke, was an ordinary ea3e of jetison. With the same facts as existed in the Saltpetre Case, 12 Coke, where private property was taken by the government for public use, thi scourt would give-compensation.
    
      Respublica v. Sparhawk, 1 Dallas. This was a case tried in the Supreme Court of Pennsylvania before the adoption of the Constitution, and the question was whether the State should give compensation for provisions taken during the war of the Revolution. It was decided that there was no remedy.
    The cases of Lawrence v. Geary, 3 Cal., 69, and American Print Works v. Laiorcnce, 1 Zabriskie, 255, sustain the natural right to destroy private property for the purpose of preventing a general calamity.
    
      This court, in the case of Grant, 1 C. Cls. R., 41, a case which seems to have escaped the attention of the learned counsel, discusses fully the law of eminent domain.
    Sedgwick, in his Treatise on Statutory and Constitutional Law, p. 519, says : “ It seems to be settled that, to entitle the owner to protection under this clause, the property must be actually taken in the physical sense of the word.”
    And the title must be actually divested. Ib., p. 523. Cushman v. Smith, 34 Maine; Hatch v. The Central R. R. Co., 25 Vermont.
    The President, under the neutrality law of 1818, has(the right to order the military and naval forces to take possession of and detain vessels whenever, in his opinion, military or naval force is necessary to enforce the laws. Gelston v. Hoyt, 3 Wheaton, 332.
    In detaining vessels under the embargo law, the collector was not bound to prove that he had reasonable ground of suspicion. Carroll v. McFadden, 8 Cranch, 98; Otis v. Watkins, 9 Cranch, 355.
    In addition to the obligation on the President of the United States to enforce the neutrality laws, there were treaty stipulations between the United States and the Central American States and Great Britain, which could not be disregarded without a breach of national faith.
    On the 19th day of April, 1850, Great Britain and the United States entered into a treaty with reference to the construction of a ship canal between the Atlantic and Pacific oceans, by the way of the river San Juan de Nicaragua, and either or both of the lakes of Nicaragua, to any port or place on the Pacific oceans. (9 United States Statutes, 995.) In the first article it is agreed that neither government “ will ever erect or maintain any fortifications commanding the same or in the vicinity thereof, or occupy, or fortify, or colonize, or assume or exercise any dominion over Nicaragua, Costa Rica, the Mosquito coast, or any part of Central America.”
    The learned counsel for the claimant have adopted the theory that even if there has not been that taking for the public use, for which the Constitution provides compensation, there nevertheless has been in the detention that species of tort which raises an implied contract between the government and the claimant.
    The single case relied upon to sustain this theory is the case of Straughan, administratrix, v. The United States, 1 C. Cls. R. 324. The proposition to which the language quoted from the opinion of the court, delivered by his honor Judge Nott, had reference, was, that the firing on the Chesapeake by the Leopard, in 1807, and the imprisonment of American seamen, were not acts of war, constituting Great Britain an “ enemy,” war not having been declared, but that they constituted a tort. His language is : “ But it is said that a state of war was necessary to constitute the offending party an ‘ enemy,’ and this act was not war, but a tort. There is no such thing as a tort by a government against an individual. As between a citizen and bis government, acts which between private persons would be torts are.to be deemed implied contracts founded on the right of eminent domain, or else acts unavoidable and necessary for the public welfare, but never acts founded upon a wrongful or malicious intent.”
    If contracts are to be implied from the tortious acts of the agents of the federal government, they are of imperfect obligation and cannot be enforced in this court. The jurisdiction of this court is over “ any contract, express or implied, with the government of the United States.”
    If the detention of the steamers of the claimant had been made by an individual, he could not have had his remedy as upon an implied, contract in an action ex contratu. His remedy would have been for an injury ex delicto, and the rule of damages would be both compensatory and vindictive.
    As there would not have been an implied contract with an individual, so there has not been with the government.
    It will be a dangerous and anomalous thing for this court to extend the doctrine of implied contracts, arising from torts to controversies, between the government and its citizens. The making of torts implied contracts has reference to the remedy, and is one of those fictions of law such as John Doe and Richard Roe, fines and recoveries, and those various modes by which judges have legislated a system of jurisprudence.
    The grounds of an indebitatus assumpsit, where a tort has been committed, are thus defined :
    “ There are cases in which the law raises a presumption from the wrongful acts of a party, and in which the courts will not admit of his intention to commit a tort in order to negative such implied promise ; for no man can set up or take advantage of his own wrong.” (Chitty on Contracts, 59, seventh English edition.
    As it is admitted that a government cannot commit a tort, how can the rule of common law, which relates alone to individuals, by which a tort is converted' into a contract, be applied to the government % “ The law raises a presumption from the wrongful acts of parties,’ but here is a party that cannot commit a'wrongful act, and, therefore no such presumption can be raised.
   Loring, J.,

delivered tbe opinion of tbe court:

Tbe petitioner claims compensation for the detention of three steamships, tbe United States, tbe Ocean Bird, and tbe St Lawrence, in the harbor of New York by tbe orders of tbe President. And we find the facts to be:

That in May, 1855, tbe steamships, tbe United States and Ocean Bird, were in tbe harbor of New York fitted and ready for sea.

That the United States was under a charter-party made tbe 18th of April, 1855, between tbe petitioner, of tbe one part, and Henry L. Kinney, Joseph W. Fabens, and Fletcher Webster, of the other part, to carry five hundred passengers from the port of New York to tbe port of San Juan de Nicaragua, for the sum of twenty thousand dollars, and one-half of tbe excess over that sum, if any earned by said vessel on said voyage.

That on tbe first Tuesday of April, 1858, Henry L. Kinney and 'Joseph W. Fabens were indicted by tbe grand jury for tbe southern district of New York for setting on foot a military enterprise against the republic of Nicaragua, and were arrested and were held to bail by the United States district court for said district.

That on the 30 th of April, 1855, by letter of that date, the petitioner wrote to Mr. Marcy,'informing him he had chartered the steamship United States to Col. Kinney and his associates, to convey him and bis friends to San Juan de Nicaragua, and asking if tbe government considered “this proceeding legitimateMr. Marcy, in reply, informed tbe petitioner that a gentleman connected with Col. Kinney “had been at Washington to represent” it to be a mere emigration movemement; and added, “ others present it to our notice in a different light.” Mr. Marcy further stated that judicial proceedings were pending, and therefore declined to express any definite opinion on the subject; and, in a further correspondence, referred the petitioner to the United States district attorney at New York.

That on or about the 7th of May, 1855, the petitioner applied at the custom-house, in New York, for a clearance for said steamship United States for the port of San Juan de Nicaragua, and it was refused; that some days afterward he applied for a clearance of said ship to Havana, and it was refused; and on the 15th of May, 1855, he applied for a clearance of the Ocean Bird for Havana, and it was refused. The collector stated that he was instructed not to clear said vessels;

Previous to the 25th day of May, 1855, the steamships United States and Ocean Bird were in their dock ready for sea, and by telegraphic orders from tlie President of the United States, Captain Boar-man, of the United States navy, on the 24th of May, 1855, placed a naval force in the vicinity of said steamships, and prevented their departure from, the harbor of New York. On the twenty-fifth day of May the President, by orders in writing, informed Captain Boarman that he had been officially informed that indictments had been found against Henry L. Kinney and John W. Fabens in New York, and against Henry L. Kinney in the eastern district of Pennsylvania, charging thpm with setting on foot a military expedition against the republic of Nicaragua; and that the steamship United States had been chartered to them and Fletcher Webster for the purpose of being employed in said military expedition, and was about to sail from New York to carry them, their followers and associates enlisted or engaged for said expedition, to their destination in Nicaragua. And the President commanded Captain Boarman as follows: “You are, therefore, hereby directed and empowered, in virtue of the eighth section of the act of Congress, approved the 20th of April, 1818, to take all proper measures and to employ such part of the naval force of the United States under your command as may be necessary to prevent the carrying on of such expedition or enterprise, and especially to prevent the departure of said steamer United States from beyond the limits of said district of New York.” And by an order, dated May 30th, 1S55, the President referred to his order of May 25th, 1855, and commanded Captain Boarman as follows : You are hereby directed to consider that order as also embracing any other vessels within that district, which have been or may be chartered or fitted out for a similar purpose by the same parties who chartered the United States.”

By the refusal of the clearances, and under the orders aforesaid, the said steamship Ocean Bird was detained in the harbor of New York .from the sixteenth day of May to the tenth day of July, 1855, inclusive. And the said steamship United States was so detained from the 20th day of May to the 10th day of July, 1855, inclusive.

That the demurrage of the Ocean Bird, as a compensation for her detention, if allowed, should be estimated at nine hundred dollars per day. And the demurrage of the United States at eight hundred dollars per day.

That the charter-party of the United States above mentioned as made between the petitioner and said Kinney, Fabens, and Webster, was abandoned by the parties interested, by mutual consent, on account of the detention of the steamship United States, as above set forth, by the government. And that the voyage provided for by the charter-party would have occupied twenty-five days.

It was contended for the petitioner in the lucid and very able argument of his counsel that the act of the President, under the eighth section of the act of 20 April, 1818, (3 Stat. 447,) was the act of the state, and a taking of the private property of the petitioner for public use. But we think the facts found do not support this claim. They showed that the vessels were prevented from leaving the harbor of New York, and thus were, in. the language of the statute, And under it, “detained,.” And .we think, as argued by the solicitor for the United States, that this was neither a taking nor a use, as those words are used in the Constitution, where they imply and require the exercise by the state of a proprietary right, for a greater or less time in the property taken. Then the detention was at the most an arrest under the statute, which was for the case “ due process of law.” And an arrest under process of law never makes a contract, and cannot without malice, which is not shown here, make a tort. Therefore the loss and inconvenience the petitioner has suffered are damnum, absque injuria, which is not a ground for an action at law.

On the facts found we are of opinion that the defendants are entitled to judgment, that they go without day, &e.; and it is so ordered.  