# Respublica v. Sparhawk

* related portals: Supreme Court of the United States.
* sister projects: Wikidata item.
RESPUBLICA verʃus SPARHAWK
T
There was a verdict and judgment nise for the Commonwealth, when Ingersol obtained a rule to shew cause why a new trial should not be granted.
The case was this:–Congress, perceiving that it was the intention of the British army to possess themselves of Philadelphia, and being informed that considerable deposits of provisions &c. were made in the 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 fame month, the Pennsylvania Board of War, in aid of this resolution, addressed a circular letter to a number of citizens in each ward of the city, requesting them “ to obtain from every family a return of the provisions &c. then in possession, and the number of persons that composed the families respectively, in order that proper measures might be pursued for removing any unnecessary quantity of supplies to a place of security.” At the same time, it as mentioned, that, “ this proceeding was not intended to alter or divert the property in the articles removed; but, on the contrary, that the same should be at all times liable to the order of the respective owners, provided they were not exposed to be taken by the enemy.”
That no precaution might be omitted upon this occasion, the Pennsylvania's Board of War, on the succeeding day, desired General Schwyler to prevent the introduction of further supplies, and to adopt the most effectual means for preventing the departure of the waggons which were then in the city, and for procuring as many more as ​ would be necessary to transport, not only the public stores, but also such private effects, as it might be thought expedient to remove.
Several intercepted letters having 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 dutress the continental army, be immediately removed to such places, as shall be deemed most convenient and secure."
This recommendation was transmitted by the Executive Council to the Pennsylvania Board of War, who, on the 18th of April, passed an order, that “ houses, barns, stores, &c. should be hired or seized, for the reception of such articles, as should be sent out of the city by their direction or that of Congress;” and, accordingly, a very considerable quantity of property was soon removed to Chesnut Hill, and placed under the care of Messrs. Laughead and Barnhill; who gave receipts to the owners, promising “ to restore what belonged to them respectively, or to deliver the same to their respective orders.”
The enemy, not approaching so rapidly as was expected, a considerable part of this property had, accordingly, been re-delivered to the order of the owners, before the city was entered by the British troops, when, however, the depot at Chesnut-Hill fell, likewise, into their hands,and, with it, 227 barrels of flour, belonging to Sparhawk; being the remainder of 323 barrels that had been originated 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 Ł919 6 6 against the public; upon which the Comptroller-General reported to the Executive Council, that "neither the principal, the interest, nor any part of either, could be allowed," and against this decision the present appeal was entered.
The question,therefore, on the motion for a new trial, was, whether this claim, under all the circumstances, ought to be admitted? and it was argued on the 28th of April, by Ingerʃol, for the Appellant; and the Attorney General, for the Commonwealth.
On the part of the Appellant, it was premised, that, in a season of peace, the law had so great a regard for private property, that it would not authorize the least violation of (illegible text) 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 molefst 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 value of the ​ public may be allowed to interfere with the immediate possessions of an individual; but these must be cafes 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 burthen of the war ought to be equally borne by all who are interested in it, and not fall disproportionately heavy upon a few. These general principles are fortified by the explicit language of the Declaration oƒ Rights, Sect. 8. which provides, that “no part of a man's property can be justly taken from him, or applied to public uses, without his own consent, or that of his legal Representatives.” In the present cafe the Appellant did not voluntarily surrender his property, nor was it taken from him by any legislative fanction.
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 distinguifhed by the writers on the law of nations; Vatt. B. 3. Sect. 232. and are in no degree analogous to the foundation of the Appellant's claim. If, indeed, the property in question had remained in Philadelphia, and had there been seized by the enemy, there could have been no reason to claim an indemnification from the public; but, when it was taken out of the possession of the owner by the executive authority of the State, and removed to a distant place, with a promise of restoring it on demand, the subsequent capture being clearly a consequence of this interference, the government is bound to indemnity the Appellant for his loss.
It is unnecessary to travel into an investigation of the variety 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 the carry right must have a remedy, is a principle of general law, which the Legislature of Pennsylvania has expressly recognized; directing, by an early Act of Assembly, the settlement of the accounts of the Committee and Council of Safety ; and prescribing in what manner the claims of individuals should be settled and discharged. 2 State Laws144. To these bodies, the Pennslvania Board of War succeeded ; the business the Board was transacted in the same way ; and there can be no good reason, why the obligations which they incurred, should not be as fairly and fully adjusted and satisfied. The Legislature, indeed, must have regarded the matter in the same light ; for, finding that the former law was inadequate to its objects, another was enacted to appoint a Comptroller General, and to authorize him “ to liquidate and settle, according to law and equity, all claims against the Commonwealth, for services performed, monies advanced, or articles furnished, by other 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. ​
1788.
The Attorney General, for the Commonwealth, ftated the cafe to be briefly this ; this the Pennʃylvania Board of War; acting under the recommendations of Congreʃs, 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 diveft the property, but that the flour fhould ftill be a fubject to the order of the owner, provided it was not expofed to a capture. The flour being afterwards feized by the Britiʃh troops at the place where the Pennʃylvania Board of War had depofed it, two queftions arife: – 1ft. Whether this Court has power to grant relief to the Appellant, if any ought to be granted. And, 2dly. Whether, on principles of law and equity, he is entitled to be relieved.
I. Confidering this as a cafe immediately between Sparhawk and the Commonwealth, it is clear, that a fovereign is not amenable in any Court, unlefs by his own confent ; 1 Black. Com. 242. And, therefore, unlefs the Commonwealth has exprefsly confented, there is nothing in the conftitution of this Curt, which can warrant their fuftaining the prefent proceedings. What then is the evidence of confent? We are refered to the law appointing the Comptroller General. Let us examine this law ; and as the cafe comes by appeal from the Comptroller, if it appears that he had no authority to liquidate and fettle Sparhawk's claim, it follows, as a neceffary confequence, that this Court, alfo, has no jurifdiction for that purpofe.
By the Act of Affembly which gives the appeal from the Comptroller General's decifion to the Supreme Court, 3 State Laws 414. this is reftricted to fuch accounts as he fhall fettle in purʃuance of the preceding Act, by which he was appointed ; 3State Laws 57. and there, we find, the fpecific object of his authority to be, the liquidation and fettlement of all claims againft the Commonwealth, “ for fervices performed , monies advanced, or articles furnifhed, by order of the legiflative, or executive powers,&c” In order, therefore, to found the jurifdiction of the Comptroller, two things muft concur–articles furnifhed; and 2dly. that the debts has been incurred by order of the legiflative or executive power.
Now, in the prefent cafe, the Appellant makes no claim for fervices performed, or money advanced, and it is impoffible for the moft ingenious fancy to bring his demand within the defcription of articles furnifhed. 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 poffeffions of individuals ; but there is in rear a tranfcendant power, which is connected with the fundamental principle of all governments, the prefervation of the whole ; and the intereft of private perfons may certainly, in that feafon, be facrificed, ne quid reʃublica detriment capiat The lofs, of which the Appellant complains, was occafioned by the exercife of this power. As a tort it cannot be charged againft the Commonwealth; for, a declaration ftating it fo would be caufe of demurre: And, therefore, as it is only ​
1788.
in cafes of contract, either exprefs or implied, that the Comptroller General is authorized to act, there is no jurifdiction which can relieve him, but that of the Legiflature.
But, in the next place, the claim does not originate upon any order of the legiflative, or executive, power, agreeably to the terms of the act. The order for the removal of the provifion, &c. to Cheʃnut-Hill was iffued by the Pennʃylvania Board oƒ war, not in obedience to the Executive Council merely tranfmitted to the Board. Even, indeed, if the Executive Council had undertaken to direct this proceeding, a queftion would ftill arife, whether they had a right to do fo? for, the act of Affembly, providing for the fettlement of claims againft the public by order of the Executive Council, though not in exprefs words, yet, by a neceffary implication, muft intend a legitimate order, founded upon the conftitutional powers of that department, or iffue under the authority of fome law. The Executive Council cannot otherwife charge the public ; without the legiflative fanction they cannot otherwife charge the public; without the legiflative fanction they cannot erect magazines, or any other public buildings ; nor enter into the moft trifting contract; of which, indeed, a recent proof appears, in the refufal of the General Affembly to pay for the arms of the State, that had been placed in the Supreme Court, or to difcharge the additional expence of the Triumphal Arch, which had been incurred by the direction and upon the faith of the Executive Council.
II. But, it is further to be fhewn, that, even fupporting the Comptroller General, or this Court upon appeal, has the power of granting Sparhawk's claim, yet, that the claim itfelf is not founded in law of equity, and ought either to urge againft the immediate agent in the wrong which he has fuftained, or travel to the fource, and demand reparation from Congrefs. The Commonwealth of Pennʃylvania cannot be liable; for, the perfons who took and kept the provifions, &c. at Cheʃtnut-Hill acted under the authority of the Board of war, who it is true, were appointed by the Executive Council; but, in this inftance, proceeded entirely upon the recommendation of Congrefs, which the Executive Council did not, and could not legally, enjoin or enforce. It is poffible, however, that, in ftrict law, Meffrs. Loughead and Barnhill would have been liable as trefpaffers, had not the Legiflature interfered to protect perfons in their fituation from vexations profecutions: 3 State Laws. 178. And this act, although it relates immediately to individuals, fhews, generally, that the temporary bodies, by whofe orders fuch individuals were governed, are, likewife, to be exempted from fuit, on account of their conduct in the fervice of their country.
But, on what ground can redrefs be at all expected on this occafion ? The removal of the Appellant's property arofe from the neceffity of the war ; it was not done to convert the flour to the public ufe, nor to deprive the owner of the advantages of it, any further than the paramount confideration of the public welfare required. ​
1788.
The object was to fecure it from the depredations of the enemy ; and, that it, afterwards, fell into their hands, was an event involuntary, and merely accidental, in which cafe Vattel exprefsly fays, no compenfation fhall be made. Vatt. libe. 3. ʃect. 232. If the Appellant is entitled to relief, every farmer whofe cattle have been driven from his plantation to avoid the enemy ; every man whofe liquors have been ftaved, or provifions deftroyed, upon the approach of the Britiʃh troops ; all the owners of Tynicum iftand which was deluged by a military mandate; and, in fhort, every one whofe interefts have been affected by the chance of war, muft alfo, in an equal diftribution of juftice, be effectually indemnified.– What nation could fuftain the enormous load of debt which fo ruinous a doctrine would create!
Ingerʃoll, in reply.– With refpect of the firʃt point made on the part of the Commonwealth, it is not contended, for the Appellant, that, generally fpeaking, citizens may fue the States ; but only that every Government, which is not abfolutely defpotic, has provided fome means (in England, for inftance, by petition in Chancery) to obtain a redrefs on injuries from the Sovereign.
As to the ʃecond point ;– The Pennƒylvania Board of war acted under the authority of the Executive Council ; and the principal is refponfible for the agent. When the Appellant's property was taken out of his own cuftody, the Government ftood in his place, and undertook all the confequent rifques. The individuals, who were charged with the care of it, are protected by the act of Affembly ; but the State, upon every principle of juftice, is ftill liable for the lofs; and the authority of the Comptroller's General was intended, and has always been underftood, to be competent for granting the fatisfaction which is now claimed.
The chief justice, after ftating the cafe, delivered the opinion of the Court as follows:
M‘KEAN, Chieƒ Juʃtice.– On the circumftances of this cafe, two points arife:
1ft, Whether the appellant ought to receive any compenfation, or not? And
2dly, Whether this Court can grant the relief which is claimed?
Upon thefirʃt point we are to be governed by reafon, by the law of nations, and by precedents analogous to the fubject before us. The tranfaction, it muft be remembered, happened ʃtagrante belle; and many things are lawful in that feafon, which would not be permitted in a time of peace. The feizure of the poverty in queftion, can, indeed, only be juftified under this diftinction; for, otherwife, it would clearly have been a treʃpaʃs; which, from the very nature of the term, tranʃgreʃʃio, imports to go beyond what is right. 5Bac. Abr. 13c. It is a rule, however, that it is better to fuffer a private mifchief, than a public inconvenience; and the rights oƒ neceʃʃity, form a part of our law. ​
1788.
Of this principle, there are many ftriking illuftrations. If a road be out of repair, a paffenger may lawfully go through a private enclofure. 2 Black. Com. 36. So, if a man is affaulted, he may by through another's clofe. 5 Bac. Abr. 173. In time of war, bulwarks may be built on private ground. Dyer. 8. Brook.treʃpaʃs. 213. 5 Bac. Abr. 175. and the reafon affigned if particularly applicable to the prefent cafe, becaufe it is for the public ʃaƒety. 20 Vin. Abr. (treʃpaʃs) B.a.ʃec. 4. ʃo. 476. Thus, alfo, every man may, of common right, juftify the going of hi fervants, or horfes, upon the banks of navigible rivers, for towing barges, &c. to whomfoever the right of the foil belongs. 1 Ld. Raym. 725. The purfuit of Foxes through another‘s ground is allowed, becaufe the deftruction of fuch animals is for the public good, 2 Buls. 62. Cro. I. 321. And, as the fafety of the people is a law is a law above all others, it is lawful to part affcayers in the houfe of another man. Keyl. 46. 5 Bac. Abr. 177. 20Vin Abr.ʃo. 407. ʃec. 14. Houfes may be razed to prevent the fpreading of fire, becaufe for the public good. Dyer. 36. Rud. L. and E. 312. Dee Puƒƒ.lib. 2.c.6.ʃec.8.Hutch. Mor. Philoʃ.lib. 2.c.16. We find, indeed, a memorable inftance of folly recorded in the 3 Vol. oƒ Clarendon's Hiʃtory, where it is mentioned, that the Lord Mayor of London, in 1666, when that city was on fire, would not give directions for, or confent to, the putting down forty wooden houfes, or to the removing the furniture,&c. belonging to the Lawyers of the Temple, then on the Circuit, for fear he fhould be anfwerable for a trefpafs; and in confequence of this conduct half that great city was burnt.
We are clearly of opinion, that Congrefs might lawfully direct the removal of any articles that were neceffary to the maintenance of the Continental army, or ufeful to the enemy, and in danger of falling into their hands; for they were vefted with the powers of peace and war, to which this was a natural and neceffary incident : And, having done it lawfully, there is nothing in the circumftances of the cafe, which, we think, entitles the Appellant to a compenfation for the confequent lofs.
With refpect to the ʃecond point;– This Court has authority to confirm, or alter, any proceedings, that come properly before the Comptroller General; but if he had no jurifdiction, we can have none. It appears then, that his power is exprefsly limited to claims “ for fervices performed, monies advanced, or articles furnifhed,” by order of the Legiflature, or the Executive Council. And, as he has no right to adjudge a compenfation from the State ƒor damages, which individuals my have fuffered in the courfe of our military operations, we are of opinion, that we could grant no relief, even it the Appellant was entitled to it.
by the court :–Let the rule be difcharged ; and the Judgment of the Commonwealth be made abfolute.