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RESPUBLICA v. SPARHAWK - 1 U.S. 357 (1788)

U.S. Supreme Court

RESPUBLICA v. SPARHAWK, 1 U.S. 357 (1788)

1 U.S. 357 (Dall.)


Supreme Court of Pennsylvania

September Term, 1788

This was an appeal from the Comptroller General's decision, on the trial of which, by consent of the Attorney General, Sparhawk was considered as Plaintiff.

There was a verdict and judgment nisi for the Commonwealth, when Ingersol obtained a rule to show 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 that city, entered into a resolution on the 11th of April, 1777, that 'a Committee should be appointed to examine into the truth of their information; and, if it was found true, to take effectual measures, in conjunction with the Pennsylvania Board of War, to prevent such provisions from falling into the hands of the enemy,'

On the 13th of the same month, the Pennsylvania 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 was mentioned, that 'this proceeding was not intended to alter or divest the property in the articles removed; but, on the contrary, that the same should be at all times liable to the order of the respective owners, provided they were not exposed to be taken by the enemy.'

That no precaution might be omitted upon this occasion, the Pennsylvania Board of War, on the succeeding day, desired General Schuyler to prevent the introduction of further supplies, and to adopt the most effectual means for preventing the departure of the waggons which were then in the city, and for procuring as many more as

Page 1 U.S. 357, 358

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 encreased the apprehensions of Congress, on the 16th of April, 1777, they resolved, 'that it be recommended to the President and Members of the executive authority of this State, to request the commanding officer of the continental forces in this city, to take the most effectual means, that all provisions, and every other article, which, by falling into the hands of the enemy, may aid them in their operations of war against the United States, or the loss of which might distress the continental army, be immediately removed to such places, as shall be deemed most convenient and secure.' This recommendation was transmitted by the Executive Council to the Pennsylvania 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. Loughead 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 originally removed thither, in consequence of the above mentioned proceedings. For the price of these 227 barrels of flour, with interest from the time of their being taken, Sparhawk exhibited an account, amounting to L919 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 Ingersol, 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 it; no, not even for the general good of the whole community. 1 Black. Com. 139. And, it was contended, that, although a state of war entitled one nation to seize and lay waste the property of another, and their respective subjects to molest the persons, and to seize the effects of their opponents, yet, as between a state and its own citizens, the principle, with respect to the rights of property, is immutably the same, in war as well as peace. Sometimes, indeed, the welfare of the public [1 U.S. 357, 359]

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