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.
