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
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