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.
