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2dly. Where the particular transaction shews that there was no intention that there should be a lien, but some other security is looked to and relied upon. 4 Burr. 2223.

If, therefore, in this case, the agreement between the defendant and the public agent actually was that he should be paid for feeding the public horses on as low terms as any other person on the road would supply them, he could not justify detaining the horses; for the particular agreement thus made, and under which the food was furnished, is the foundation of the remedy of the defendant, and it can be pursued in no other manner than upon that agreement. Or if there was no particular agreement, this case is such, that between the defendant and a private owner of horses and carriages employed in transporting the mail, I incline to think it could not legally be presumed a lien was ever intended or contemplated. A carrier of the mail is bound not to delay its delivery, under severe penalties, and it can scarcely be supposed that he would expose himself to the penalty for such delay, by leaving his horses subject to the arrest of every innkeeper on the road for their food, or that in such case the innkeeper could look to any other security than the personal credit of the owner of the horses for reimbursement. But the law on such a case could be only declared on facts admitted by the parties or found by the jury, and is not now before the court.

3dly. The great question in this case rests on a discrimination between the property of the government and individuals.

To the government is granted by the constitution the general power to lay and collect taxes, duties, imposts, and excise, to pay the debts, and provide for the common defence and general welfare of the United States:

To raise and support armies:
To provide and maintain a navy:
To establish post-offices and post-roads:

And to make all laws which shall be necessary and proper for carrying these and all other constitutional powers into effect. Vol. III.

R

The public money can never be drawn out of the treasury unless with the consent of the legislature; but whenever a debt is contracted in the establishment of a post-office, or road, or in the support of an army, or in the provision for raising or supporting a navy, or any other measure of general welfare, the public faith and credit is pledged for its payment. On the public faith and credit advances are made to the government, relying on the constitutional mode of reimbursement. If it were otherwise, what dreadful consequences would not result?

A shipcarpenter might libel public ships.
A quarter-master retain the supplies of the army. Or,

An innkeeper stop the progress of an army for food to horses of a baggage wagon.

Every man must surely deprecate a state of society where no immunity to the government shall be afforded by the constitution against such evils. Happily we are not so exposed. Congress only have the power, and they are bound by the most sacred ties of moral obligation and duty to provide for the payment of the public debts.

No other remedy exists for a creditor of the government than an application to congress for

A lien cannot be permitted to exist against the government: for liens are only known or admitted in cases where the relation of debtor and creditor exists so as to maintain a suit at law for the debt or duty which gives rise to a lien, in case the pledge be destroyed or the possession thereof lost. As in the case of a carrier of the mail: he cannot sue for the hire nor retain the mail, because he cannot sue. Yet a carrier of private property may sue or retain, because government is not answerable. Justice is the same whether due from one to a million or a million to one man; but the mode of obtaining that justice must vary. An individual may sue and be sued. The United States cannot be sued. Suability is incompatible with the idea of sovereign power. The adversary proceedings of a court of judicature can never be admitted against an independent government, or the public stock or property. The ties of faith, public character, and constitutional duty, are the sure

payment.

pledges of public integrity, and to them the public creditors must, and I trust with confidence, may, look for justice. They must not measure it out for themselves. I have stated these principles to shew, that by law the defendant could not justify stopping the mail, on principles of common law, as they apply to individuals and to the government.

There are however considerations arising from the act of congress which are conclusive to my mind.

The statute is a general prohibitory act. The common law, if opposed, must give way to it, and the court is bound to decide according to the correct construction of that law. That the act is constitutional is not, nor indeed can be questioned. It has introduced no exception. Whether the acts which it prohibits to be done were lawful or unlawful before the operation of that law, or independent of it, might or might not be justified, is not material. This law does not allow any justification of a wilful and voluntary act of obstruction to the passage of the mail. If therefore courts or juries were to introduce exceptions not found in the law itself, by admitting justifications for the breach of the act, which justifications the act does not allow to be made, it would be an assumption of legislative power. Many exceptions might be introduced, and perhaps with propriety. For instance,

A stolen horse found in the mail stage. The owner cannot seize him.

The driver being in debt, or even committing an offence, can only be arrested in such way as does not obstruct the passage of the mail.

These examples are as strong as any which are likely to occur, but even these are not excepted by the statute, and probably considerations of the extreme importance to the government and individuals of the regular transmission of public despatches and private communications may have excluded these exceptions. But whatever may have been the policy which led to the adoption of the law, which the court will not inquire into, it totally prohibits any obstruction to the passage of the mail. It is the duty of the court to expound and execute the law, and therefore I am of opinion and decide that the defendant is not justified.

Case of the Deserters from the British frigate

L'Africaine.

THE

HE case of the deserters from the British frigate L'Afri

caine, now lying at Annapolis, has excited much attention, and we have been requested by several correspondents to give a full account of it, with the arguments of counsel and the decision of the judge at length. We shall detail the circumstances; but no arguments were employed on the subject.

In the case of Hippolyte Dumas, judge Tilghman, whose opinion is reported in a former number of this Journal, (e) avoided the question of delivering up deserters from the ships of those nations which are willing to surrender persons in similar cases. The point did not come before him, and he very properly avoided an extra judicial decision to which his repu. . tation would have given great weight. It is true that there exists no law of the United States on this subject; but we hold that,

1. The law of nations is the law of the land.

2. That all judicial tribunals, exercising common law jurisdiction, are bound to carry into effect the laws of nations.

3. That the law of nations requires the delivery of deserters from the ships of war belonging to a nation at peace with that country in whose ports the persons have deserted and taken' refuge.

That the law of nations is the law of the land, requires no demonstration.

In all questions respecting the laws of nations, it is the fashion to go back to what is called a state of nature. We are

(e) Vol. 2. p. 86. and see vol. 1. p. 376.

willing to admit that there was a time when men ran wild, and even, according to Lord Monboddo, that they had tails. In such a state, then, if one person trod upon the tail of another, the insult must have been redressed by the party injured. But when civil society was instituted, a tribunal was organized for the punishment of offences, and the individual surrendered his right of revenge. It became the duty of government to protect the community from internal commotion and external violence. Now it is difficult to imagine a case more likely to produce injury than the protection of deserters or fugitives from another country. The country which harbours them is injured by the introduction of corruption into its body, and it is further injured by the resentment or the contempt which such conduct will meet in the opinion of contemporary nations. Hence the rigorous manner in which they were treated by the Roman law. We allow persons in every province full power and right to distress deserters. If they shall dare to resist, we command their punishment to be expeditious, wherever they are found. Let all men know they are hereby invested with a right to act in the name of the public against public robbers, and those who desert from the army; and that this right is to be employed for the peace of the commonwealth. God. Lib. 111. tit. 27. He who deserts his colours, who basely shrinks from the honourable duty of defending his country, forfeits all right of protection from any country. Grotius says expressly he ought to be punished where he takes refuge, or be delivered up. B. 11. ch. xx. 9 4. 1. and he cites a variety of instances where fugitives have been surrendered.“ By the law of war," he says,

we receive deserters,” (B. 111. ch. xx. 12. 1.) and è converso, we may infer, that in time of peace no such right exists. Galianio, in his treatise on the mutual rights and duties of belligerents and neutrals, contends for the same equitable law.

But it seems the secretary of state informed Mr. Erskine that the executive of the United States had no power to deliver up deserters, because no such prerogative was vested in the executive, and that neither the law nor the practice of nations imposed such an obligation on them. And as the executive had no such power, the chief justice concluded that it was not

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