
    Respublica v. Sparhawk.
    
      War powers.
    
    During the war of the revolution, congress had a right to direct the removal of any articles that were necessary to the continental army, or useful to the enemy, and in danger of falling into their hands; and one, whose property, so removed, was afterwards captured by the enemy, was held not to be entitled to compensation from the commonwealth.
    Tnis 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 IngersoU obtained a rule to show cause why a new trial should not be granted.
    The ease 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 boarpl 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 bo 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 we^e 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 wagons which -were then in the city, and for procuring as many more as would *be necessary to trans- r*g5o port, not only the public stores, but also such private effects, as it L might be thought expedient to remove.
    Several intercepted letters having increased 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 hoard 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 Chestnut-Hill, and placed under the care of Messrs. Loug-head & 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 Chestnut-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 919?. 6s. 6cl., 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 th§ circumstances, ought to be admitted ?
    And it was argued, on the 28th of April, by Ingersoll, 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 authorise 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 jtublic ^ n *may be allowed to interfere with the immediate possessions of an d individual; but these must be cases of absolute necessity, in which every good citizen ought cheerfully 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 burden 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, § 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. lib. 3, § 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 recognised; 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 authorise him “ to liquidate and settle, according to law and equity, all claims against the commonwealth, for services performed, moneys 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.
    *The Attorney-General, for the commonwealth,
    stated the case to be briefly this: that the Pennsylvania board of war, acting under L 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 deposited it, two questions arise: 1st. Whether this court has power to grant relief to the appellant, if any ought to be granted ? And 2d. 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 (1 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 referred 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 51), 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, moneys advanced, or articles furnished, by order of the legislative or executive powers, <fcc.” In order, therefore, to found the jurisdiction of the comptroller, two things must concur : 1st, that the claims be for services performed, moneys advanced, or articles furnished: and 2d, 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 transcendent 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 J *in cases of contract, either express or implied, that the comptroller-general is authorised 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, agreeable to the terms of the act. The order for the removal of the provision, &c., to Chesnut-IIill 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 expense of the triumphal arch which had been incurred by the direction and upon the faith of the executive council.
    IL 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 be 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 & 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). Ai d 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. *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, § 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 Tinicum island, which was deluged by a military mandate ; and, in shoi’t, 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 risk s 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.
    
      
       This is the volume generally known as McKean’s Laws. The act cited is that of the 2d September 1778. P. L. 146.
    
    
      
       Act 18th February 1785, § 2 (P. L. 444), here cited as 8 State Laws.
    
    
      
       Act 13th April 1782. P. L. 61.
    
    
      
       Act 21st March 1783. P. L. 178.
    
   The Chief Justice, after stating the case, delivered the opinion of the court as follows :

McKean, Chief Justice.

On the circumstances of this case, two points arise : 1st, Whether the appellant ought to receive any compensation, or not ? And 2d, 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.

*Of this principle, there are many striking illustrations. If a road be out of repair, a passenger may lawfully go through a private inclosure. 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, § 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. Jac. 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. Kelyng 46; 5 Bac. Abr. 177; 20 Vin. Abr. fo. 407, § 14. Houses may be razed, to prevent the spreading of fire, because for the publio good. Dyer 36; Rud. L. and Eq. 312; See Puff. lib. 2; c. 6, § 8; Hutch. Mor. 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, nor 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 ha» 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, moneys 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 aj>pellant was entitled to it.

Bv the Court. — Let the rule be discharged ; and the judgment for the commonwealth be made absolute.  