
    
      ORLEANS NAVIG. COMP. vs. SCH'R. AMELIA.
    
    Appeal from the court of the first district.
    seethejudg. merit April
    
    
      Ellery, for the plaintiffs.
    It becoming important, soon after the cession of this country to the United States, to improve its inland navigation, left by the Spanish government in a state of reproachful neglect, and more particularly desirable, to open and enlarge the communication between Lake Ponchartrain and the city of New*Orleans, on the 3d of July, 180S, an „ . , ' , . act for this purpose, was passed by the governor and legislative council, by virtue of which, a company was formed and incorporated by the name of the “ Orleans Navigation Company/* whose immediate objects and efforts were to remove the bar obstructing the mouth of the bayou ¡St. John ; to free the bayou itself, from its numerous obstructions; to dig out the canal Ca« rondelet; and to excavate, at its termination m the city, a basin of sufficient capacity for the reception of all the vessels using this navigation. By the 9th section of this act, as a compensation for labors*,' thus usefully directed, the president and directors of the company are entitled (as soon as the company shall have improved the navigation of the Bayou, so as to admit, at low tides, vessels, drawing three feet of water, from Lake Ponchartrain to the bridge at the settlement at the bayou) to receive from any vessel, passing in or out of the said bayou, a sum, nut exceeding' one dollar, for every ton of her ad-measured burthen; and spvin proportion for avery boat of a burthen less iban one ton. i||nd when further improvement shall permit vessels,: drawing three feet of water, to pass from the báyoú by the canal Carondelet to the basin, to receive in like manner, an additional toll, not exceeding one dollar per toa« % Martin’s 1H- . , ® , . ' gest, 18b, And by the 11th section, thecpllec-t°rs °f toll, appointed and authorised by the Pres^en^ and directors, may stop and detain all boats and vessels, using the canals and navigation, to which they respectively belong, until the owner or commander, or supercargo of the same, shall pay the toll so fixed as aforesaid, or may distrain part of the cargo therein, sufficient.by the appraisement of two credible witnesses, to satisfy the same. 3 Martin’s Digest, 190.
    By virtue of the first quoted section, the president and directors, as the different parts of this rout became navigable, proceeded to fix the rate of toll, considerably short, however, of their chartered limits, viz : imposing but seventy-five cents per ton upon all vessels coming to the hayou bridge, and only fifty cents, additional toll, upon those using the basin.
    The schooner Amelia, having made eight trips, seven of which were to the basin, and hey master having refund to pay the prescribed toll, was, by virtue of the power granted by the 11th section of the charter, 9topped and detained, by process issuing out of court of the first district, for the purpose of compelling ouch pay?, ment. Soon after her detention, the A. D. Q, General, filed his claim to this vessel, exceptiu# ⅛ his answer to the jurisdiction of the court, and claiming her as a public transport, owned by, and in the service of, the United States ; and pleading that, as such, she could not be stopped, nor made subject to the payment of, toll. To this plea a demurrer was filetPfandupon trial sustained, and judgment Rendered in favor of plaintiffs for the amount of their demand ; from Which judgment the present appeal is brought.
    The rate of toll, falling so considerably sliort of the chartered limits, is not contested ; nor from the proceedings does it appear, that the charter of the company is , intended to be pjjt in issue. The course of argument seems indeed sufficiently marked out by the assignment of errors upon the face of the record Tour errors are thus assigned.
    i. because the United States are not amenable as defendants, to any judicial demancf whatever (especially in a court of a particular state) neither by an action against them in nominé, nor by an action in rem against property, the title of which is in them.
    & Because, any act or acts, rof the late territory, of Orleans, or of the state of Loui-’ siana, authorising the said company to levy a tax pr toll on vessels passing along the bayou St. John, or the canal Carondeíet, s»nd any tax dr toll, prescribed or ordained, by the said company, pursuant to the said act or , „ acts, as far as the said toll or tax may operate, or is intended or endeavored tobe levied on Pu^^c transport vessels, attached to the armv of the United "States, purchased by them pursuant to the' constitutional law of the congress of the United States, providing for the public defence, and employed exclusively in the transportation of troops' and army supplies, and solely in the public sérvice, are unconstitutional and void.
    >8. Because the matter is exclusively of admiralty jurisdiction.
    4⅜ Because, even if the United States were amenable to any judicial demand as aforesaid, or if the said a°t or acts, prescriptions, or ordinances were constitutional and valid, or if the matter were not exclusively of admiralty jurisdiction, yet the act of incorporation of the said company, gives them no lien upon the said vessel, ánd confers no right of seizure and sale, to enforce the payments of the said tax or toll.
    I. If, by the first error assigned, is merely intended, that the United States are not suable, the position is readily admitted. It is not pretended that they can be made subject to1: the cognizance of our courts. We are well aware of their freedom from ail forensic jurisdiction -or Coercion; and that the remedy against them is . . . , . . i ji i j>* by petition and noj^by action ; and that reliet is a matter of grace and not of compulsion. An exemption, however, which lays them, as well * ’ ’ " . « as those acting under their authority, under an honorable engagement, punctually to discharge all public dues, and not shelter themselves under the judicial inviolability of the United States.
    But though, as sovereigns, they are.thus exempt from an involuntary subjection to our 4ri-bunals, it by no means follows, thaj they cannot make themselves parties to a suit, by intervention. This power is incident to their sovereignty and necessary to their protection; and wé see it every day exercised. We find them constantly interpleading, wherever their rights or interests are concerned : and figuring in suits as claimants and respondents. The books are full of cases of libels and' insolvencies, where they thus come voluntarily forward, to claim a;forfeiture, or vindicate a privilege. Having thus a right to intervene in any suit, in which their interest may be involved, they of course come into that court wherein such is entertained ; ifud should they think (proper to rejneve it to their own courts, the statute ?© f, the United States; prescribes the mode of such removal. But the exceptions taken in the an^verrtto the jrycisdic-ti0Q, by the Arr terms df it, shews that it whs ' - #y. ,&ot madte for the purpdse, transferring the cause, and ⅜^⅜⅛ it in the United States couri; but to prevent it,fiom being tried in any cdurt: '> _ .• , _ that the objectiott was hot td thfs fortim, but to all forums. By not pursuing, therefore, the mode designated by the act, for its transfer, and rejecting our offer .to, transfer it, the cause ⅛ fixed in the state court by their own consent and election. They are then Voluntary parties, claimants and respondents in this suit ; and by this? intervention, have put .at issue their title to this -vessel, as well as to its exemption from ffllli Having made themselves parties to this suit, what is to be the result of this voluntary intervention ? , Do they bring with them any peculiar privileges over common suitors ? Are they to be exempt from the ordinary administration of justice in our courts? Are they not, and have they not put themselves, upon a footing with ull other parties litigant ; and can they claim any respect for their character, which is not due to> their cause ? *
    But it is objected, that though not nominally, yet' substantially iv¿ ‘ hatfe sued 4he United States, by-an action rk rem againsf property, of which the title'is in them.
    We know nothing of ttí& Dnitid Statés If this suit, further than they have thought proper to m»ke themselves known. The schooner Amelia, commanded by captain Swepler, uses this navigation ; he refuses to pay the legal toll imposed, and we stop and detain his until it is paid. She might be his property, or that of any other individual, or of the United States ; our officers are not bound to investigate her title, but to collect her dues. Had she indeed been a public armed vessel of the United States, belonging to the navy of the United States, and employed for national purposes, (though I am not prepared to say, that in that case, she would have had a right to use toll-free, the canal and basin of a private corporation) yet there would have been no mistake as to her character. But the schooner Amelia, employed as a transport in the Q. M. General5® department, has no distinctive marks, no national character; she does not belong to the navy of the United States ; is not commanded by an officer, nor manned by a crew of the United States, and is only known to us by her delinquency. ,
    But it is said, that she is actually, if not os~ tensibly the property of the United States; and by stopping and detaining her for the payment of her navigation dues, we have obliged the, United States, to come forward in her behalf.
    have called for no process against the United States, nor against their property; if they are interested in this vessel, and therefore come forwar<j? it jSj on their part, a voluntary thing; their appearance is no more coerced in this suit, than in any case of libel, where a vessel is seized, in which they claim duties; or Wtiere property of an insolvent is sequestrated, upon which they claim a preference. If any one is coerced, it is the D. A. Q. M. General, in whose department and employment this vessel is said to be. Suppose, instead of stopping and detaining the vessel, we had sued this officer in his individual capacity, for the toll in arrears, could the United States, though ultimately responsible for the amount of the judgment, free him by their intervention, from the consequences of the suit, and take away the jurisdiction of the court ? There is but little difference, whether the payment is made out of the officer, or out of the vessel.
    A. attaches goods, the property of B., the duties on which are unpaid; the United States intervene for the protection iff their debt; is the court, by this intervention,]'^ lose at once its jurisdiction, and release tbéíifftached property j or does the cause go regularly On to trial ? Are not the United States bound, in this case, to make out their claim, and prove their préfe-rence ? And has not the attaching creditor a right to contest it with them, step by step? r~, . . . , i • Suppose, m our case, we had taken issue upon the title of the vessel, would not the United States, have been bound to produce and prove their title ; claiming it as their property, would they not be held to prove it such ? By our demurrer, we admit the fact, but does this admission, release them from the necessity of going on with the cause, and shewing also their title to their claimed exemption from toll ? Intervening in a suit, they are to remain as parties, until its decision ; they are not permitted to appear and disappear at pleasure. In the above supposed cases, of the libelled vessel ; of attached goods, with the duties unpaid ; of sequestrated insolvent property, is the mere intervening claim •f the Uuited States, sufficient for their release ? Are they not bound respectively to prove, that a forfeiture has accrued; that the duties ara due; that their priority over the other creditors, is legal ? Are the words United States, so magical in court, that when pronounced, like the word semmy, all doors are to fly open, and every process unclose. Suppose, in our case, instead of resorting to the process of , the court, to 
      stop and detain this vessel, we had ourselves closed upon her the toll-gates, until she had paid her toll; would they not, in that case, in order to effect her release, have been obliged to come into court, institute their claim, and prove their exemption : and should we not also have had a right to be heard ? Is there any substantial difference, in this stoppage and detention, whether done by ourselves, or the court ? Does the hand employed change the quality or character of the act ? Or, is the coercion upon the United States, stronger in the actual, than in the supposed case ? Again, instead of a canal, a basin, suppose it a turnpike road, and a horse or waggon, belonging to this department, stopped, upon a refusal to pay the customary toll j would the mere saying in court, it is our property, be enough ? Would they not be held to shew, by some law, its exemption from toll ? The contrary position is fraught with the most serious consequences; notwithstanding no title to exemption created either by the constitution or laws of the United States, or of this state is, or can be shewn, yet, by thus taking away the jurisdiction of the court and the means of enforcing the payments of toll, a perpetual exemption is produced. All inquiry is, in this way, ffed; the pretended right of exemption is withdrawn from the profane eye of a court, and sé-cutely and with impunity enjoyed. Every thing is made to yield not to the character of the property, but to that of the claimants. If the property of the United States be indeed se-rionsly believed to be entitled to this exemption, it would better comport with their justice, character, and dignity judicially to test it, and fairly meet the inquiry, in that court, which they themselves have elected, and in a suit, to which they have made themselves voluntary parties.
    A jealousy of the prerogatives and sovereignty of the United States seems unnecessarily excited in this cause, which is not even felt in governments of a more despotic cast. In England, until the time of Edward I, the king might be sued. Even now, the crown may be judicially reached by petitions monstrant de droit and process in the exchequer. The banker’s case, in the time of Edward II, contains the principal features of a suit: it commences with a petition to the barons of the exchequer, the attorney general demurs, and upon judgment, takes it by writ of error to the exchequer chamber ; whence, in like manner, it is carried to parliament, where the lords affirm the judgment of the exchequer in favor of the petitioners, la Spain, the son of Columbus successfully car? ried on a suit, before the council of the Indies, „ # against Ferdmaud, upon the contract made by tha(; monarch with his father, in relation to Sii* rights to this then newly discovered world. " The different states of the union, all claiming sovereignty, were liable to be sued, until exempt, by an amended article of the constitution; and according to a variety of authors, the goods of a sovereign are liable to process to compel appearance. BynlcershoeJc, Martens and Rutherford. With these instances before us, we may surely support, without disrespect, our interests in a cause, in which the United States, uninvited by any citation, process or call to appear, thought proper voluntarily to intervene.
    II. The second error assigned, claims for this vessel an exemption from toll, on the ground of her being a public transport attached to the armies of the United States.
    To support this title to exemption, some provision, either in the constitution or laws of the United States, or of this state ought to be produced. We know of none. Even had she been a public armed vessel, constituting part of the military force of the United States, officered and manned as such, and exclusively employed an national purposes, though exempt from toll, By a resolution of the company, we know of no law enforcing such exemption. Much less then is exempt an unarmed vessel, employed in the Q. M. General’s department, privately manned 1 and commanded, and liable, when not employed in public transportation, to take freight and pas-aengers.
    By the constitution, congress has power to make all lairs proper and necessary to carry into effect their constitutional powers. But we know of no law, by which, either literally or constructively, their public transports are exempt from the payment of toll, raieably and squally imposed by a private company, upon all vessels, using a bayou, canal, and basin made navigable, and dug at their expense; and we doubt much their authority to make any such law. We are even yet to learn that public transports are exempt from wharfage; or public property, from storage ; or, if sold at public auction, from auction dues; or if transported through a turnpike road, from toll. In Pennsylvania, an old fort belonging to the United States, near Pittsburg, was sold at public auction, and the payment of the usual auction duty resisted on the ground, that none could be exacted from the United States. The court, however, decided otherwise, 4 Wheat. 343. To avoid some of these expenses incidental tó , . the operation of government, they have appoint-e<^ officers, purchased lands, made navy-yards and erected buildings : and, by a provision in , . , • ... the constitution, have exclusive legislation over all such places so purchased.
    Had this navigation been originally a public highway, the right of exacting toll might more fairly, and upon better grounds, have been drawn in question. But it is altogether a private concern : this corporation is not a public but a private one, the stock of which is held altogether by private persons. The bayou, canal and basin, have been cleared out, deepened and cut by individuals; of the land, upon which the canal and basin are dug they are the owners, and the toll collected is their private property. By which law thgiy are they to be divested of property and rigflfthus acquired ? The seventh amended articlepf the constitution of the United States, expressly provides, “that no private property shall be taken for public use, without just compensation.” The toll, we have fixed, is that just compensation to which we are entitled for the use of this navigation, and why is the payment of it thus unconstitutionally resisted ?
    To say broadly that public transports am» ployed by government in the transportation of . , , troops and stores, is one of the means used by congress in carrying into effect their constitu-tinnal powers and therefore to be exempt from , 1 the payment of toil is not only a gratuitous assertion, but most dangerous doctrine. If applied to this case, where shall we find a limit to this principle ? All local taxation, private toll, and customary dues, so far as the United States are concerned, are at once suspended. Each in turn would be construed to come into contact with some of the means thus employed, or be seized upon as furnishing one of such means; and the blighting course of the nume* roüs agents and officers of the various departments and establishments of the general govern■ment would be marked, through every state by the destruction of tadinary revenue and invasion of property.
    III. The third error assigned is, that this matter is exclusively of admiralty jurisdiction. Having no possible idea, how this ground will be maintained, and why our canal and basin are to be crowned with admiralty honors, I shall wait; until £ hear further on the subject from the opposite counsel.
    
      IV. By the 11th section, of the act of incor- . .... . poration above quoted, is given in express terms the right of stopping and detaining all boats and vessels, until they shall pay the toll fixed .... by the company; and this chartered right, through the medium of the court, we have, in the present case, exercised. By the order of the judge, indorsed on the petition, it is ordered “ that the schooner Amelia be seized and detained until the further order of the court and the judgment of the court is, “that the demurrer be sustained, and the plaintiffs have judgment for the amount of their demand.” No order of seizure and sale therefore, were it worth while to take that ground, has ever issued; and the words of the charter have been strictly followed. But independently of this chartered right, the company, upon general principles of law, have a lien upon all vessels using this navigation, for the amount of their toll, and a right to detain them until paid.
    The fact of her turning out a public transport no more divests the company of their lien, than the fact of its being public property divests the owner of the warehouse where it is stored of his lien, for the amount of storage.
    Here indeed, lies the gist of the question. Though we may have no right directly to attack 
      the property of the United States, yet, having thus a hen upon all vessels using this navigation for the amount of toll and therefore a right to ° _ stop and detain them until paid, and knowing no exception m favor of public transports, we have exercised upon them the same right; and if it he thought proper to apply to the court for a release, they must shew bur mistake, by proving their title to exemption. And this is precisely the situation of the Amelia; we have, through the medium of the court, merely stopped her, until she pays the toll due ; to coerce this payment, we have obtained no order of attachment ; nor of sequestration ; nor of seizure and sale, but simply that of detention, by virtue of which she remains detained, “ until further order of the court.”
    The hand employed does not change the character of the act; and our rights are not weakened by forms exercised through the intervention of the court. Would not the carpenters, who built or repaired her, have a lien upon her for the amount of their bills, and a right, in like manner, to stop her until paid ? And would the mere fact, of her being public property, deprive them of possession, and dissever their lien ? And is not our chartered right equally strong? Ought she to be permitted to go out of our hands, or leave the basin, until she pay the incurred toll, or shew a legal, exemption from such payment ? 1 J
    
      Ripley, for the United States.
    The plaintiffs have made a supposed act of the governor and legislative council of the territory of Orleans, passed July 3, 1805, the foundation of their proceedings in the present case. Of consequence, as it is apparent on the record, it is competent to investigate its validity although it is not amongst the causes enumerated for error ia the proceedings of the court below.
    Under these circumstances, I propose to make three enquiries arising upon the face of the record of the cause.
    1. Is the act, purporting to be an act of the governor and legislative council, passed July 3, 1805, creating the corporation of the Orleans ^Navigation Company, valid?
    
      2. If it be valid, does the corporation possess power, to impose a tax or duty upon a public transport, owned and employed under the provision of the federal constitution which autho-rises the United States government “ to raise and support armies,” as a necessary mean of carrying this power into effect ?
    3. If the corporation possess a power to assess such a tax, have they a right to coerce the payment of it by compulsory process in rem against a public transport, or other property of the United States.
    I. A corporation is an ideal, invisible body, ereated by the law. The individuals, who compose it, possess immunities in their corporate capacity, which do not belong to a mere partnership or junction of interests between individuals. These immunities are not only important to those who possess, but they are of immense consequence to society itself. If we look at every portion of the civilized world, we shall perceive the influence of these chartered communities. In England, in France, in every country of Europe, since society became enlightened by Christianity and commerce, the effect of the ecclesiastical, the literary and the commercial corporations, have been most powerfully felt, through every relatiou of society. Look at the order of Jesus, the East India Companies of England, France and Spain, and we perceive at once the imposing influence upon society of these communities : cheering and vivifying a nation if properly directed, but degrading and degenerating it, if the reverse.
    If we turn our attention to the United States, We shall perceive that in borrowing from the ahcient world, our literature and language, and jurisprudence, we have also introduced the ganie important character to our corporations. b The multitude of our universities, colleges, scientific and literary societies; our numerous banks and insurance companies ; the venerable order of our clergy, with their vestries, wardens and parishes, assume almost invariably the form and the character of so many corporations imparting their cheering and consecrated, and benign influences to public opinion, and con-troling, in that way, even society itself.
    Under this view of the subject, the question occurs, what power in a state is competent to create a corporation ? What authority can impart to a portion of .the individuals, composing a community, a union of interests, and powers and rights and immunities, which are not common to all? The answer is obvious. No authority can confer these priviledges and grant these rights, but the power which is sovereign. No tribunal can create these powerful and important associations, powerful as the instruments of good or evil, and important as it regards their influence upon a nation, but the functionaries who, according to the peculiar form of each government exercise the supreme power of the state. It is not with subordinate authorities ever to wield it, unless the power is expressly and specially and by name delegated to them. In proof of the correctness of these r # principles, I refer the court to the following au- .... thonties.
    Itomat, expressly enumerates the power to create a corporation amongst the powers of absolute sovereignty.
    The police and order of a state require that, not only crimes, but every thing that may disturb or hazard public tranquillity, be repressed. For this purpose, the reunion of several persons in one body is illicit, on account of the danger that might result from an assembly, gathered for a purpose injurious to the state. Assemblages of men, who have none but proper objects in view, cannot be formed, without the express approbation of the sovereign, who grants it on the information of the proposed objects. This, renders his permission necessary, to the establishment of ecclesiastical and lay corporations, as colleges, universities, chapters, &c. in which, a number of individuals form one body, whatever may be their object. The sovereign alone can grant the necessary leave and authorise such a reunion. S Donmt, 9, IS.
    
      Blackstone, speaking of the sovereign powar vested in the king, expressly enumerates the power of creating a corporation, as a preroga- ,. „ . 3 * «ve ot sovereignty. % Comm. S72. And in 4 Wheaton, 410, Judge Marshall says “ the creation of a corporation, belongs to sovereignty11 This is admitted.
    The position then being established that the power of creating a corporation is a sovereign power, let me ask, had the governor and legislative council of the territory of Orleans attributes of sovereignty, sufficient to enable them to create a corporation ?
    The sovereign power is the supreme power of the state. It knows no superior ; it is what Grotius denominates the “ puissance civile’1 It is that concentration of power from which all authority emanates: and in what particular public functionary or functionaries it resides, depends upon the theoretical or practical nature of the social compact. In an absolute monarchy, this power resides in the monarch without limitation ; in a limited monarchy, it resides in the monarch, but circumscribed by powers delegated to other estates in society : as foi instance, the parliament of England. In an aristocracy, this power rests with the oligarchy. In a democratic republic, sovereign power is originally in the whole body of the people; but w hen they fórm a social compact, it becomes delegated to be exercised by tbe public functionaries, accord-x . ....... mg to the torms, provisions, and limitations of that compact. Hence, in the-United States, • i • where the form of government is complex, arts-ing from tbe relation of the states to each other, each state is absolutely sovereign within itself, according to the principles of the state constitution, excepting, so far as a portion of this sovereignty is conferred Upon £he federal government, by an express, or a necessarily implied grant of powers. Within the sphere of all powers, exclusively delegated to the federal government, it is supreme ; within the circle of all powers* reserved to the state, it is also supreme.
    The question now recurs, were the governor and legislative council of the territory of Orleans, sovereign or supreme, in any sense ? They acted undér no original compact of the good people of Louisiana. They were organ-ised by a law of congress, passed March ¾6, 1804, in pursuance of sec. 3, act 4, cons. Unit⅛ ed States, “the congress shall have power to dispose of and make all needful rules and regulations respecting-the territory or other property Belonging to the United States.” The governor and legislative council were appointed hy the president; and can it be contended for a moment, that this body was sovereign and supreme ? In every respect* they were subordinate to the federal government. Their local government; could be modified, and was modified by congress. Under the appellation of territory, Lou-jsjana was anally a province of the United States, as it had been before of France and Spain. Surely, there is no pretence to consider the governor and council as possessed of supreme power, under an Original compact, either theoretically or practically derived from the community. They were no sovereignty; they were a dependent, subordinate power of the federal government, under an express provision of the constitution of the United States. They ■were, to ose the language of the most enlightened jurist of the present age, Chief Justice Marshall, “ a corporate body.” 4 Wheaton, 4¾2.
    It may possibly be contended by the opposite counsel, that the federal government grants ed to the governor and legislative council, the power of creating a corporation : such a grant of power from the sovereign, must be express and eo nomine. It cannot be raised by implication : the 4th sec. of the law passed March 26,1804, after making provision for the appointment pf a governor and legislative council, proceeds to declare ‘‘that the governor, by and with the advice and consent pf this council, or of » majority of them) shall have power to alter, mo-,.„J , ’, ... , . „ difj, or repeal the laws, which may be in torce Their legis-c at the commencement of this act. lative powers shall also extend to ail the right* fui subjects of legislation : but no law shall be valid, which is inconsistent with the constitution and laws of the United Statesand further, that “ the governor shall publish throughout the said territory, all the laws which shall be made, and shall from time to time, report the same to the president of the United States, to* be laid before congress. Which, if disapprove ed of by congress, shall thenceforth be ef no force. Having settled the principle that it is inconsistent with the laws of the United States, and of Louisiana, as expounded and established, for any power short of sovereignty to create a corporation, I canuot discover in this section any delegation of that power, on the part of the federal government to the governor and legislative council of Orleans. The section merely gives them powers of legislation, within the sphere of their corporate capacity, but not a grant of powers repugnant to the principles of the constitution and laws of the country. If the United States, in their capacity, aré the only supreme power in relation to their territories, it has already been shewn that they can only ere-ate a corporation. And a delegation of autho- . ' r , rity on some points to an inferior tribunal with a proviso, that they shall npt pass laws repugnant to the laws of the country, surely does not g.^ ^em a j.jgfjt ⅜0 usurp authority, which exclusively belongs to the supreme power.
    This species of subordinate legislation in affirmance of general laws, but not repugnant to them, is given to every corporation. With reference to their own interior concerns, they can pass laws, bi#t no one ever could suppose th it they could arrogate to themselves the powers i sovereignty. If the bank of the United States were to attempt to create subordinate corporations, by its general power to pass bye-laws, it would excite much more clamor against that corporation than it has yet experienced, and still, upon the principles óf our; government, our laws and jurisprudence, the bank possesses that power, as much as the other species of corporation, the legislative council of a Territory.
    No one would pretend' that a territorial government of this description had power to raise armies or create navies in time of war, and yet these powers, are no more sovereign po wers than the power to create a corporation.
    With reference to the other part of the section, which directs that the laws of the legislative council of the Orleans Territory should be reported to the president of the United States, to he laid before congress, which if disapproved of by congress shall thenceforth be of no force, this section does not confer upon the legislative council additional powers, but gives to congress a reto upon laws passed in pursuance of, their proper authority. It is not a grant of authority, but a restriction upon authority already-delegated. It is similar to thereto, which the governor of the state of Louisiana possesses upon laws p'asséd by the legislature of the state. If he approve an act or suffer the period for exercising his veto to expire without returning a bill, it becomes a law, if the legislature act within the limits of their authority : but if they transcend it, if they go beyond the limits of the constitution, it is not a law, nor binding even with the approval of the governor : for example, if the legislature passed a bill of attainder, which they are prohibited from doing by the constitution of the United States, and the governor were to approve of it, still it would he void as transcending their powers. In this case,the legislative council had powers of legislation for certain, subordinate purposes: on the exercise of these powers congress possessed á veto or thfe power of disapproving. If a law was passr ed which was within their authority, and con- ,. , ,. Sress 'did Qo(i disapprove of it, it*became a law But if tliey passed a law beyond of the land. au^ority> for example to create a religious establishment, even if congress did not disapprove of it, yet as the law was passed without authority it would be void. In the present instance the legislative council, without authority, passed a law to create a corporation, which was void ah initio, and it certainly requires no su-pererogating veto on the part of congress to declare that null which is null already.*
    Having thus settled, I hope satisfactorily, three positions: 1. That the power of creating a corporation is a prerogative of the supreme power of the state exclusively: 2. That the legislative council of New-Orleans were not this supreme power, but were in all respects subordinate to the federal government: and, 3. That no authority was imparted by the act of congress of 26th March, 1804, delegating to the legislative council this important arm of sovereignty, it .remains to enquire whether any act has been, done by the congress of the Uuiled States, or by the legislature of the sovereign state of Louisiana, since its admission into the union, which amounts to a, confirmation of the-privileges and immunities claimed by the plaintiffs.
    
      The 31st of March, 1814, the legislature of Louisiana passed a law by which it is enacted that the operation of the Orleans navigation shall be confined to the improvement of the inland navigation of the island of Orleans: and on the 14th March, 1814, they passed a law exempting them from the operations of a certain? tax.
    The United . States congress have passed a law granting land to this corporation.
    How these statutes can operate as confirming the immunities and privileges claimed by the plaintiffs, I am wholly at a loss to discover.
    It is a settled principle that an act done co-ram non judice is altogether void. A judgment rendered by a court without jurisdiction is to all purposes as though no judgment existed. Where a legislative body with limited powers pass a law, transcending those powers, it is ipso facto void; for example, if a state, of the American republic were to declare war, the law enacting it would be absolutely void. To apply ithése principles to the present case, the legislative council of Orleans have passed an act creating the corporation of the Orleans Navigation Company; they being a limited tribunal had no power to create a corporation, and of consequence the act is ipso facto void. Now if the act be void, it is to be considered as though it never . . .⅛ - existed ; and, if it be viewed in this light, what f°rce or effect is there in these subsequent statutes ? To my view none. There was no such corporation, as the Orleans Navigation Company, ⅛ esse ; there was of consequence nobody for these laws to operate upon; there is, in a word, no basis to the superstructure, which i* attempted to be set up. A number of individual exist to be sure in their natural capacity, but they have no legal existence as a corporation.
    Again, these subsequent acts contain nothing by way of confirmation ; they contain only a recognition of a certain name, which has’ no legal existence. An act of incorporation is a compact between the individuals who compose it and the state. Admitting the original charter to be void, is anyv compact created by these mere words of-recognition ? What rights do they convey, what priviledges afford, what immunities do they grant? For all these great purposes, they are perfectly inoperative. They convey not a single right ; the character of the supposed corpora-tion, the objects for which it is created, and the individuals who compose it, are totally unknown. For aught that appears in these recognitions, the Navigation Company could arrogate to themselves the right to navigate exclusively the Mississippi, the gulf of Mexico, or even the Ocean itself. To ascertain the limits, extent and character of the corporation, to breathe into it life, it is necessary to go back to the original charter. Against this we protest; it is a void act, a waste leaf in the statute book, passed without competent authority, and no rights whatever can be claimed under it.
    It may be contended that the Orleans Navigation Company have appeared as parties in the judicial tribunals of the country, and that decisions have been made, where they thus appeared. The judicial decisions of the state are of binding authority, upon points expressly raised and decided in a cause; and records of courts are conclusive, upon all who are parties or privies to the suit. This is the first time the charter of-the Navigation Company was ever put in issue in a judicial tribunal, and the first that the present parties ever appeared in controversy. Hence the respondent is not concluded by any judicial decision with reference to the former points, nor by any record with reference to the latter. If the amount of such argument should be, that as the Orleans Navigation Company há||e appeared frequently in court, without their charter being attacked, that hence, the silence of others is to conclude the present re-gpnn(]ea^ ⅛6 argument is too feeble to need refutation.
    After a long course of practice otherwise, the supreme court have confined the parish court ro its proper jurisdiction ; and I believe that, it never was made a point in the argument, that be-caase they had acted without authority several years, the usurpation itself would give them a, jurisdic.Sn, which the laws do not allow,
    | have foreborne in discussing these points, to advert to other circumstances, which Tender this charter extremely objectionable, than those I have stated.
    By the act of the legislative council of the territory of Orleans, sec. 7> it is declared that, the said corporation, by their president, directors or agents, may enter into and upon all and singular the land or lands covered by water, where they shall deem it proper to carry the canals and navigation, herein before particularly assigned, (extending throughout the whole territory) with or without the consent of the owner or owners thereof, and to lay out such routes, as shall be most practicable, for effecting navigable canals as aforesaid, The concluding paragraph, makes provision in what m^per da-raages shall be paid to the proprietor.
    
      It Will be perceived that, By this section, tin unlimited control is imparted to this corporation ever all the real property of the inhabitants of _ . the terrjtOry of Orleans ; nor is the charter limited as to duration. I should think it questionable, whether even a state possesses the power to create so sweeping a grant as this is* It is a settled principle of faw that, the sovereignty in case of necessity, ean take the property of individuals for a public purpofe, which is definite, paying an equivalent; but 1 am yet to learn that a sovereignty can confer upon a corporation an unlimited power to enter and seize the property of individuals tat their discretion, without its first appearing^ be a matter of necessity, for the public good. By this charter, I admit, ⅛ some future cases, it would be necessary to have the approbation of the executive, but this does not change the nature of the argument. The legislature and net the executive, under our institutions, are to be the judges of the necessity which- definitively exists, and with* in What limits it may be proper to seize the property of individuals for public purposes. I Venture to say that, even in despotisms, there has not existed a charter conferring such-an universal monopoly as thfe!¿ And the idea that, fourteen^ executive officers; appointed by the president of the United States, possessed the power thus to virtually grant away the property of the people of Orleans, without any definitive necessity is, to my mind, absurd and preposterous. Again, the act of congress, passed April 8, 1813,' for the admission of Louisiana into the union, has this provision : “that it shall be taken as a condition upon which the said state is incorporated into the union, that the river Mississippi, aiAl the navigable rivers and waters, leading into the same, and into the gulf of Mexico, shall be common highways and forever 1 t ⅝ free, as well to the inhabitants of the said state (of Louisiana) as to the inhabitants of other states and territories, without any tax, duty, impost or toll therefor, imposed by the said state. And that the above condition, and also, all other the terms and conditions contained in the third section of the act, the title of which is herein before recited, shall be considered, deemed and taken fundamental conditions and terms, upon which the said state is incorporated into the union.” The bayou St. John is a navigable water, leading into the gulf of Mexico, where the tide ebbs and flows, and from time immemorial has been navigated by vessels of more than ten tons burthen. By the 9th sec. of the act of March 36, 1801, the navigation company have a right to ask for, demand and receive at the rate of one dollar per ton for all vessels navigating said bayou.
    Are not these laws at Variance? And the former one is the fundamental condition, which Louisiana is a member of the American republic. If she does not perfodpit with good faith, according to every principle of law, she certainly foifeits her right to such membership. The subject, in this point of view, is painful to me, and I will not press it further; the court will at once perceive the results of sanctioning the claim of the corporation to the waters of this bayou.*
    In another view this section is important, for it contains a direct disapprobation and veto, upon all laws passed by the original territorial government, which impose a tax upon the navigable waters leading into the gulf of Mexico.
    II. If it be valid, does this corporation possess power to impose a tax or duty upon a public transport attached to the army, owned and employed, under the provision of the federal constitution w bich authorises the United States , government, “ to raise and support armies,” as necessary means of carrying this power into effect.
    
      With reference to this point, it is not neeesc sary lor me? to go into an elaborate tram ot rea* Honing. The principle has been so fully settled in the case of wWCuMoch against the- State of j)jaryian(i, ^ jy Beaton f by the highest judicial tribunal of the country, that this necessity is taken from m|p It is there well observed' that, the United States’ sovereignty, although limited, is supreme within its powers or sphere of operation. v
    The present ease is a much»stronger one foe the defendant, than the case which I have quoted. In that instance»- the state of Mary* land claimed a right to tax a corporation creat*' ed by the federal government. In the present instance, the navigation company, deducing its rights under the territory of Orleans, claim to tax the property of the federal sovereignty, employed as. a means to carry into effect the powers of that sovereignty.
    NOw, if in the exercise Of those powers they are supreme, how can a state, much less a territorial government, control them or interfere with that supremacy? The very momentyou autho-rise any tax by a state government, you destroy all idea of supremacy. You admit the existence of a power superior to it* The exereis© of that authority which the states for their coni-mon defence ud general welfare, have delegated to the national government, becomes liable to restrictions, embarrassments and taxation from the state governments ; or, in other words, you make the state governments supreme in every instance, and the federal government subordinate to tbjjfL
    Can a state tax the mail? Can it impose a direct tax upon the buildin^used for the custom house? Can it levy a stamp duty from the papers and blanks which are used in the offices of the agents of the United States ? Can it impose a tax upon public armed vessels, or upon timber cut within it for the navy ? Can it tax public baggage waggons laden with military stores, which traverse its highways ? I believe the answer will at once be in the negative; and for what reason? It is simply because certain powers are delegated to the federal government. In the exercise of these powers, they are supreme, both as it respects the edilution of the power and the means employed to carry it into effect. Now, if the state governments can tax, or in any way interfere with tbpse means, all supremacy ⅛ destroyed ; the ipjpns themselves becope subject to the author rity^ of the state, and the sovereignty or absolute supremacy of the federal government is lost and destroyed. The present case is one of this des-cnption, and any attempt to impose a tax upon , property of the government, used as a means to carry into effect a power granted to it, is unconstitutional and void. On this point, it is not necessary for me to say more. Indeed after the able and sound analysis of the corapÜx principles of our government, in the case Í have just quoted, the subject is exhausted, and no argument could illustrate it.
    III. If the corporation possess a power to assess such a tax, has it a right by compulsory process in rem against a public transport, or other property of the United States, to coerce the payment of it ?
    In this case the plaintiffs admit, that the^ United States aré not suable. Of course, it is not necessary for me to adduce authorities to support a proposition of this kind. As they hafe admitted they are not suable, it then follows, in the present case, if the process is a suit against the United States, all foundation for the action is at an end.
    By the civil and admiralty course of proceeding, there are two modes of commencing a suit. One by process against the person, the other by a seizure of the thing.
    
      la the proceeding, in rem, recognised by Wiese, laws, are all Qases of lien or priviledge. The, builder of a ship, the sail-maker who sup-pSies it with sails, all have this species of priviledge. Mariners can have it sequestered for their wages; and persons, who lend money upon it as a specific pledge, possess this remedy. Landlords can proceed against the thing itself for rent ; and innumerable examples of other proceedings of a similar kind might be given. “iAre not these suits ; and are there not parties to them, ⅛ the manner in which there are to all suits at law ? By admitting that the United States are not suable, the gentleman has in /act conceded away his cause; for to my view all these modes of proceeding are as much suits at law, as a proceeding against the person ; and they are accordingly so recognised. A suit is a process at law for the purpose of coercing the payment of a debt, or obtaining remuneration -for a wrong done ; and it is of no consequence {Whether this be accomplished by the seizure of 4he thing, or by a remedy against the person. In both instances, it is compulsory in its character and consequences ; and from this eircum-stance alone results the deduction, that a sovereignty is not suablefor it being supreme in society, it would be a contradiction in terms to render it liable to the compulsory process of any tribunal.
    I do not think it necessary to adduce autho-rj(jes [0 this point. The case is so clear, tha it appears to me it cannot be misunderstood. The very foundation of civil society is broken down, if you admit that the sovereignty is liable to coercion from inferior tribunals.
    In the argument of the opposite counsel much is said about, the United States intervening in suits with their claims, and an attempt is made to render this an analogous case. The sovereignty Can sue, but not be sued. The sovereignty can appear voluntarily in court, but not be coerced. The sovereignty can intérvene in suits, but not be compelled to answer. Now, in this case, the proceeding is coercive. The vessel of the United States is seized by the sheriff; and either it will be condemned by default, oc the United States must suggest their claim. Is this a voluntary intervention ? Is this simply making a claim, without being compelled to do It ? Certainly, it is not necessary for me to reason on this point. To the common sense of the court, and to their legal capacity, I leave it.
    I regret that this process has ever been commenced. I most sincerely lament that a sense ' . , J of professional duty should impel me to attack the character of a company for the individuals of which I possess the highest respect The proceeding has been far from voluntary on my part. But such strong ground has been taken in this cause with the United States, that the Navigation Company must take in the full measure of the consequences. There is manifested sometimes almost a spirit of frenzy, productive of ho good and which often leads to disastrous results. I do not wish to speak in the language of prediction; but Bam much mistaken, if we shall not perceive its unfortunate effects in the present example. The canal company, under their defective charter, were receiving immense profits. A spirit of discontent to be sure was manifested, but still their proceedings were nbt interrupted. By attacking the national sovereignty, it has led to an analysis of their rightsf*and I very much question, whether the still small voice of murmuring will not be forcibly heard, and its consequences seriously felt. I repeat, that we have been forced into this discussion, and we wash our hands of all its consequences.
    
      Mllery, in reply.
    From the errors assigned. I was not given td expect, that among the mean# _ , . . , ' employed to resist the payment of toll, would5 l)e numbered an attack upon the constitutionality of the charter. After a lapse of 'fifteen.- years, . , # ^ 7 since the incorporation of the company, and after the successful completion of extensive arid haz»? ardous works, and an expenditure of 8880,000, from which, as yet, but scanty returns have been yielded, it seems rather late to call in question the constitutionality of that instrument, upon the faith of which these works have been performed, and this money hazarded. The acquiescence for so many years, in its constitutionality, and in the competency of the late ter.' ritorial legislature to the grant, as well as the practice under the act granting it, seems to have fixed the proper construction upon this point; and the judicial and legislative authorities of the late and present-governments, as well ás that of the United States, having sanctioned such construction, the question ought no# to be considered at rest. Such was the decision of the supreme court of the United States in reía» tion to the constitutionality of the appointment of the circuit court judges ; and such was also the decision of oür own supreme court, when a like question arose, with regard to that of the dfficq of special administrator. JB tiller. 1 Cratich, 309» „ _ T1 Stuart vs* Land. 2 Martin, 16*1, Rogers vs.
    Safe reliance might, perhaps, be placed upon this principle, so fully recognised by the highest tribunal of this state, as well as that of the United States; but the importance of the present case to the stockholders of this company, and the large and various interests ultimately at stake, will exeuse a more particular answer to objections thus unexpectedly and unseasonably raised. They all chiefly resolve *themseltes eventually into the denial óf the compfetency of the late territorial legislature to the grant; and ^divested of extraneous matter, and put into syllogistic form, stand as follows : Nolle but the Sovereign power can create a corporation: the governor and legislative council of the late ter* ritory of.Orleans were not the sovereign power; therefore, they could not create this corporation.
    In the construction of this syllogism, the pre-. mises, from which this conclusion is drawn, aré too broadly taken ; inasmuch as they suppose absolute and unqualified sovereignty, or supreme power. It is admitted, that a, law, creating a corporation, like any and every other law, is an exercise of sovereign power, the act of legislation itself implying sovereignty ; but though sovereign, as it respects the act done, it by no means follows, that the enacting legislá-ture may not, in other subjects, be dependent J ’ 1 ,. m , . or subordinate. X\ ithin the scope of its legislative powers, it is necessarily absolute, an€ quoad hoc, sovereign ; but it may be otherwise ( limited by national compact or fundamental law; as congress, for instance, by the constitution of the United States ; and each state, in addition, by its respective constitution. Hence it was once doubted, whether congress (the power not being éxpressly given by the constitution) could create a corporation; the same doubt is now raised, as it respects the late territorial government ; and might, with as much propriety, be extended to all the local governments. But congress, and the different states and territories, being all constitutionally invested with certain legislative powers, are, as to all objects within the scope of these powers, respectively sovereign ,* and all means necessary and projier to the accomplishment of these objects, if not specifically expressed, are constructively and impliedly given. Now corporations are such means ,* and being such, we do not look for any specific authority for their creation ; we do not ask, whether such a power be specially given, 1 1 . but. whether it be specially prohibited.
    Now, by turning to the acts of congress, pro-vidina for the government of the territory of Or- ~ ~ _ h leans, during the period when the charter was granted, we shall find :
    First, that the governor and legislative council were invested with powers adequate to the creation of this corporation, which, if not expressed, fall necessarily within their sphere of legislative action ; and
    Secondly, that even if inadequate,, this actof incorporation, in conjunction with all the other territorial laws, has received the sanction of congress.
    1. This charter was granted by the governor and legislative council, at their second session, 3d July, 1805. 4 vol. Orl. L. 2 p. 1 chap. § 1.
    Now, by the 4th section of the act of congress, •f SOth March, 1804, “ erecting Louisiana into two territories, and providing for the government thereof,” the legislative powers are vested in the governor and thirteen of the most fit and discreet persons of the territory, to be called the legislative council, and to be appointed annually by the president of the United States : and by a subsequent claugé ©f the same section, their legislative powers aré made to i( extend to ajj flip rigfáfui subjects of legislation.” i Mar-flu’s Dis. ITS. I omit, as unnecessary to the argument, any notice of the act of congress, of ® # . . Sd March, 1805, (i further providing for the,go* vernment of the territory of Orleans;” for, though of a da te some months prior to that of the charter, the organization of the government under it, was subsequent. 1 Martin’s Digest, 170, 188. 1 Gmyd.Digest^ 431. We mqst then look exclusively to the first mentioned act of congress, for the legislative powers of the territory of Or* leans, under which this charter was ^granted ; and which, by the 4th section above quoted, extended to all the rightful subjects of legislation. ,
    The powers, conveyed by this clause j seem abundantly ample to the creation of a corporation ; and if improving the inland navigation of the territory npre a rightful subject of legislation, creating a corporation, as the means of such improvement, is assuredly not withheld. The legislature selected this as the fit means to produce an authorised end 5 and the same reasoning which would divest them of such power, would equally go to divest of it, the state and the United States. The territorial government, it is said; was not the sovereign power ; neither in the full import of the term, is the state ' , . government or the general government; mas-much as the sovereign power resides in the people- But no specific authority for this purpose, it is added, is found in the act of congress providing for the government of Louisiana; neither is it to be found in the constitution of this state, or that of the United States.
    S. But secondly, admitting the incompetency of the governor and legislative council to the grant of this charter, yet the act granting it has undergone the examination and received the approbation of congress; and therefore, even if invalid, as an act of the territorial legislature, it has . all the force of a law of the United States.
    By the 4th section of the act of SOth March, 1804, above quoted, the governor was bound to “ report from time to time, to the president of the United States all laws which were made, that they might be laid before feongress; and which, if disapproved by them, should thenceforth be of no force.” 1 Martin’s Dig. 144.
    If disapproved jiy congress, the law was thenceforth of no force; it follows then, until disapproved by them, it was of force; by not disapproving it, when presented, they necessarily (under the provisions of this act) approve. 
      Qui non prohibit* q%um prohibiré, potest, jubet. Every territorial law was therefore of force,. from the date of its passage, until the period of its disapproval. The approbation of congress-. . . 4. was not previously necessary to their validity. Our distance from the seat of national govern-mentr would have produced the most serious inconveniences, if the operation of all our laws' had been suspended, until the pleasure of congress was known.
    Now, it is not suggested that the governor failed to report, from time to time, the laws which were made ; or that he omitted to include, in such reports, the law containing this charter ; or that the president neglected to lay them before congress; or that congress ever disapproved this law. It follows then, that it has met with the due approbation and sanction of-congress. Even the statutes of a corporation, by our code, acquire the force of laws, if they have been appfbved by the legislature. Civil' Code, 90, art. SO. ,
    Indeed, the government of the. then territory of Orleans may properly be considered as a delegated branch of that of the United States ; and all their laws, not disapproved by congress, as having the force of a law of the United States. The governor and legislative council were appointed by congress for the express purpose of makingdaws for this territory; and every act made by them, within the scope of their legislative agency, is, in effect, an act of congress. Quifacit per alium, facit per se. , 3. To this it may further be added, that this company has also been distinctly recognised by various subsequent acts of congress, passed in their favor. By the act of March, 1807, confirming the claim of the corporation of the city of NeW-Orleans to the environs, done upon the spe<^il condition, of their gratuitous relinquishment of “ so much thereof as shall be necessary to continue the cqnal Carondelet from the basin to the Mississippi; and leaving open as a public highway, 60 feet of the space thus reserved for the canal.” By the act of 18th April, 1814, the United States grant to the president and directors of the Orleans Navigation Company, and to their successors for ever, a lot of ground, fronting the bayou St, John. And by the act of 16th March, 1816, they confirm to the company the use and possession, and vest in them another Jot of ground, purchased by the company of the Charity Hospital.
    After such general sanction by congress of the act of incorporation, as included in the late territorial laws submitted to their inspection, and such particular recognition of it, by-subsequent r ° ' actor tavor anti endowment, we were not prepared to expect, as one of the means selected for their defence in this suit, an attempt to dissolve the charter, by a denial of its constitutionality, and thus take back by revision, the lands with which they endowed us.
    4. This charter has also been recognised by the succeeding legislature of the territory of Orleans, when put on a more advanced grade of government, as appears from a supplementary act of the 1st Marcli, 1809, passed by ttífe second session of the second legislature of the territory of Orleans, in relation to the improvements of the company. 3 Martin’s Digest, 196.
    5. It has been further recognised by the different judicial authorities of the territory and state, in various suits, in which it has appeared as party, plaintiff or defendant; many of which1 are reported ; in one of which (against the city corporation) to which I particularly refer the court, many of the points, now made, were then raised, and decided in favor of the company. 2 Martin, 10, 214. 1 Martin, 23, 269. 2 Martin, 84. 5 Martin, 507-
    6. And lastly, it has received at different times and in distinct forms, the sanction of the legislature of the state of Louisiana, witnessed by a number of recognitive acts. By the act of 3d March, 1814, passed by the fifth legislature of the state of Louisiana, at the instance of the company, their chartered rights and powers are confined to the island of Orleans. By the act of S7th March, 1813, an annual tax, producing about 500 dollars a year, and which still continues, was imposed on the capital stock of the Company ; though by the act of 14th March, 1816, the company, on account of their losses, were exempted, during the years 1816 and 1817, from its payment.
    Thus the charter of the Orleans Navigation Company appears to have been granted by a legislature fully competent, by the powers with which it was invested, to the grant; and the act granting it has been duly approved by the congress of the United States ; by whom it has also been recognised by various subsequent acts in its favor; it has also been recognised by the succeeding legislature of the territory of Orleans, when under a more advanced grade of government ; and also by the different judicial authorities óf both the territorial and state governments ; and lastly, it has been sanctioned by different recognitive acts of the legislature of the state, which still derives a revenue from the tax imposed upon its capital stock, and annual-]y, by a joint committee of both bouses, visit the ’ , company, and inspect their books and /proceed-
    This charter rests upon unshaken ground, supported by the concurring acts of the territorial, state and general governments.
    To the above may be added, the eonaequenr ces whieh would result from the adjudged unconstitutionality of the charter, upon the grounds taken in the argument. Without stopping to notice its ruinous effects upon the stockholders, in the loss of SOO,O0Q dollars, amount of capital stock subscribed and paid, and the reversion of the lands with which they have been endowed, and the abandonment of works completed and projected; what would become of the various companies incorporated during the existence of the territorial government, and standing on the same obnoxious grounds ? Besides roads, fejv ries, and toll bridges, the Fausse Riviere company, one insura nee company, two churches and three banks, by this disfranchising principle, would fall at once to the ground : divested of lands, and deprived of the means of recovering a debt; embarrassment, confusion and distress, would spread through all classes, and in every direction.
    
      I had forgotten, what perhaps it was hardly . . , ,, . worth white to recollect, or ma!erial to answer, another objection, viz. that toll could not be . . 77 constitutionally demanded by the company, , . . because the 1st section of the act of congress ot 8th April, 1812, for the admission of Louisiana into the union, makes it one of the conditions of its incorporation, “ that the river Mississippi, and the navigable rivers and waters leading into the same, and into the gulf of Mexico, shall be common highways, and for ever free, without any tax, duty, impost, or toll therefor.” 1 Martin’s Digest, 222.
    
    But this condition applies exclusively So navigable rivers and waters leading into the gulf of Mexico'; now the bayou St. John, in the first place, is not connected with the gulf of Mexico, but with lake Ponchartrain ; and in the next, does not lead into that lake, but on the contrary, makes from it. A river has its source iu the interior, and flows into the sea; but a bayou is a creek from a lake, sea, or river, running into the land. And again this condition applies only to waters originally or naturally navigable, and not to those made so by the exertions of individuals. And lastly, the charter and priviled-ges of the company existed, and were known to and approved of. by congress, as has been shewn. Iona; prior to this act : as well as subsequently ° ,, .. ■ „ . . . .. ', V recognised by the act of 18th April, 181*, and 16th March, 1816, already noticed.
    Under these circumstances, I am inclined to {je|¡evej £},„(; t|ie company may still continue to collect toll .from the bayou, without endangering the union, or forfeiting to the state of Louisiana, as is apprehended, her membership.
    While upon this return back, I cráye also the excuse of the court in noticing an overlooked intrinsic ground of unconstitutionality, suppos"ed to be found in the seventh Section .of the «charter; which, in certain cases, grantspower, to the company in conducting their cartels; to enter upon lands covered with water, -belonging to individuals; prescribing however, the mode and extent, and providing the means of compensation. Though a similar clause may perhaps be found in every turnpike act, yet this is considered as imparting an unlimited control to this corporation, over all the real property of theinhabitants of the territory of Orleans, (which, by the way, supposes it all covered with water J and it is said, that even in despotisms, there has not existed a charter conferring such an unlimited monopoly; and that the late territorial legislature possessed the power thus to. virtually grant away the property of the people of Orleans without any definitive necessity, is pronounced absurd and preposterous. And yet is this charier still permitted to live ! Senatus Í • IT • . i ncec intelligit, consul videt, hie tamen vivit!
    
    . As the other grounds in this cause are lightly touched on in the reply, either from a reliance upon the strength of this, or from a belief, perhaps, that some of them are mistaken, and that others are untenable, I shall add but little to what has been said in the opening.
    I know of no prihciple in the constitution Of the United States, by which public property generally is exempt from local taxation. This exemption is confined to real estate, ceded or sold to them by the state legislatures, for the erection of forts, &c. or to personal property employed by thetti in the proper and necessary exercise of their constitutional powers. The decision of chief justice Marshall in the suit of M-Culloch vs. the State of Maryland, is grounded on the constitutional right of congress to erect banks, as one of the fiscal means of carrying inió effect such constitutional powers, and that the power to tax them, on the part of the states, involved the power to destroy ; but it is expressly made not to extend “ to a tax paid by the real property of the bank in common with other real property in the state.” 4 Wheat. 
      430. In this state, indeed, the real property of jj,e United States, by the 8d section of the act 0f Congress of 16th Feb. 1811, (i to enable 3 ... the territory of Orleans to form a constitution,”’ " . . . &c. and assented to by the territorial ordinance of the December following, enjoys this immunity. 1 Mart. Dig. 218, 13¾. But I know of no law, exempting personal property in this state, from the payment of customary and ordinary dues and tolls claimed by individuals, or what is tantamount, a private corporation, for the use of their works. The principles of such a law would lay at their feet both personal rights and private property. Congress, by the constitution, have power “ to raise and support armiesbut they have no more right gratuitously to use a private canal, water-course, navigation, ferry, bridge, or turnpike road as a matter of conveniency in the transportation of their troops, than they have, as a matter of economy, to quarter them in our houses. I speak not o time of war, when every thing is made to yield to necessity. But the question then recurs, how can you coerce the United States ? How can you profit by the lien you have upon their property, or their vessels, or enforce against them the payment of your dues or toll ? By stopping and detaining the subject matter, upon which the lien subsists, or the toll is due. by turning the key of the store; If goods, \ . if vessels, by closing upon them the toll-'gates. If they are then claimed by the United States as their . . , „ , , property, the court, upon payment of such dues, and not until such payment, will order their release. Can any law or principle be pointed out to the contrary, divesting parties of «uch right to detain? United States’ property is saved at sea; the sailors bring it into port and libel it for salvage, admonishing all persons concerned to shew cause, why reasonable salvage should not be decreed therefrom; whereupon the United States come into court as owners, and claim the saved property. Is it to be at once released and restored, without inquiring into the rights of the salvors ?
    Ift the present case, we have a lien upon the Amelia for the amount of toll due; she »is in our basin, excavated at our expense, out of our soil, and under charge of our officers ; she proposes to leave it without payment; we want, by.stopping her to preserve our lien; instead of resorting to forcible means, we seek the aid of the court to prevent her departure; the court, at our instance, does detain her; the United States then file their claim, and answer and deny our right of toll. Will not the court hear us upon this point, and decide upon out right, thus Put ⅝⅛ issue by the United States ? Is the court prepared to say, that no lien can at-11 ^ t. , . / tach to public property ? ^ J3ut the very exist- „ ,. , , . , ence of a lien, depends upon possession; deprived of that, by the departure of the vessel, we are deprived of oiir lien ; we call then upon the court to secure us in such possession ; a denial throws us upon physical means of detention ; and puts it upon the right of the strongest; where, indeed, we should stand but a4poor chance.
    See the judgment, post, 63S.
     