Rutgers v. Waddington

RUTGERS v. WADDINGTON.(1)

MAYOR's Court, City of New YORK. August 27, 1784.

This was an action of trespass brought against the defendant, upon an Act of the Legislature of this State, passed the seventeenth of March, one thousand seven hundred and eighty-three, for the occupation of a brew-house and malt-house of the plaintiff, from the thirteenth day of August, one thousand seven hundred and seventy-eight, until the time of passing the Act above mentioned. The cause came on to be argued upon demurrer, before the HONORABLE JAMES DUANE, Esq., Mayor, RICHARD VARRICK, Esq., Recorder, BENJAMIN BLAGGE, WILLIAM W. GILBERT, WILLIAM Neilson, Thomas RANDAL, and THOMAS IVERS, ESQUIRES, aldermen, on Tuesday, the twenty-ninth day of June past.

The counsel for the plaintiff were Mr. Lawrence, assisted by the Attorney-General, Mr. Wilcox, and Mr. Troupe. Those for the defendant were Mr. Hamilton, assisted by Mr. B. Livingston, and Mr. Lewis.

Mr. Lawrence opened the pleadings and arguments on the part of the plaintiff, and was followed by Mr. Wilcox. Mr Livingston, Mr. Lewis, and Mr. Hamilton, were next successively heard, in behalf of the defendant, and were replied to by Mr. Lawrence, Mr. Troupe, and the Attorney-General. The arguments on both sides were elaborate, and the authorities numerous.

The court took time to advise, until Tuesday, the twenty-seventh day of August, and then the Honorable the Mayor proceeded to deliver the judgment of the court, as follows:

In the case of Elizabeth Rutgers versus Joshua Waddington, which we gave notice should be determined this day, the court now proceed to judgment. It is represented to be a controversy of high importance; from the value of the property, which in this and other actions depends on the same principles; from involving in it questions which must affect the national character: - questions whose decision will record the spirit of our courts to posterity! Questions which embrace the whole law of nations !

It were to be wished, that a cause of this magnitude was not to receive its first impression from a court of such a limited jurisdiction, as that in which we preside; - from magistrates actively engaged in establishing the police of a disordered city, and in other duties, which cut them off from those studious researches which great and intricate questions require. If we err in our opinion, it will be a consolation, that it has been intimated, “ to be probable, whatever may be the determination that it will not end here."

The counsel or both sides, who have managed this cause, and by whose diligence and abilities, so much learning, on an uncommon subject, hath been drawn into view, have spared us much labor.

We cannot but express the pleasure which we have received, in seeing young gentlemen, just called to the Bar, from the active and honorable scenes of a military life, already so distinguished as public speakers, so much improved in an arduous science.

That in a contest (which we are told) is not considered without temporary prepossession, we may express our sentiments with more deliberation and correctness; and that nothing to be offered by us, may be misunderstood or misapplied, we have taken the trouble to preserve our remarks by committing them to paper.

The action is grounded on a statute of this State, entitled, "an Act 17 for for granting a more effectual relief in cases of certain trespasses," passed the seventeenth day of March, one thousand seven hundred and eighty-three; and the declaration charges, 1st, the substance of the Act, viz., " That it shall and may be lawful for any person or  persons, who are, or were inhabitants of this State, and who, by  reason of the invasion of the enemy, left his, her, or their place or  places of abode, who have not voluntarily put themselves respectively  into the power of the enemy, since they respectively left their places  of abode, his, her, or their heirs, executors, or administrators, to bring an action of trespass against any person or persons, who may have occupied, injured, or destroyed his, her, or their estate, either real or personal, within the power of the enemy.”

2. Complains that the defendant, on the thirtieth day of August, 1778, with force and arms, &c., occupied one brew-house, and one malt-house of the plaintiff, situate in the east ward of the city of New York, and within the jurisdiction of this court, and his occupation thereof so continued, from the said 13th day of August, in the year 1778, until the 17th day of March, in the year 1783.

3. And also, that he the said Joshua, with force and arms, &c., afterwards, to wit, the same 13th day of August, 1778, and at divers days and times, between the said 13th day of August, 1778, and the 17th day of March, 1783, occupied one other brew-house, and one other malt-house, of her the said Elizabeth, within the city and ward, and within the jurisdiction, &c., et alia enormia, to the great damage, &c., against the peace, &c. And the said Elizabeth avers,

1st. That there was open war between the King of Great Britain, his vassals, &c., and the people of the State of New York aforesaid, on the 10th day of September, 1776, to wit, at the east ward, &c., and within, &c., and that the said open war continued from the said day until the time of passing the Act aforesaid.

2d. That the King of Great Britain, his vassals, &c., and the enemy mentioned and intended in the said Act are one and the same and not different.

3d. That she was an inhabitant of the State of New York, and that the place of her abode was the city of New York, in the State of New York, on the tenth day of September, in the year last aforesaid, to wit, in the east ward, &c., and within the jurisdiction, &c.

4th. That by reason of the invasion of the enemy, she the said Elizabeth afterwards, to wit, the said tenth day of September, in the year aforesaid, left her said place of abode, to wit, in the ward aforesaid and within, &c.

5th. That she did not, at any time after she left her said place of abode, as aforesaid, voluntarily put herself within the power of the enemy aforesaid.

6th. That the brew-house and malt-house aforesaid were parcel of the real estate of the said Elizabeth, and at the days and times they were occupied by the said Joshua were in the power of the enemy, to wit, at the east ward, &c., and within, &c.

Wherefore the said Elizabeth saith she is made worse, and bath sustained damage to eight thousand pounds et inde, &c.

The defendant to this charge, as to the force and arms and whatsoever is against the peace, and as to the whole of the trespass aforesaid, except as to the occupying the said brew-house and malt- house of the said Elizabeth. on the twenty-eighth day of September, 1778, and continuing the occupation thereof until the seventeenth day of March, 1783, he pleads not guilty and takes issue.

And as to the occupying the brew-house and malt-house, on the aforesaid twenty-eighth day of September, 1778, and continuing the occupation thereof until the last day of April, 1780, inclusively, the said defendant saith, that the said Elizabeth actionem non, quia dicit, that long before the said twenty-seventh day of September, 1778, to wit, on the fourth day of July, 1776, in (substance) the Declaration of Independence by Congress [sic], who did then and there declare, that the United Colonies were, and of right ought to be free and independent States; that they were absolved from all allegiance to the British Crown, and that all political connection between them and the State of Great Britain was, and ought to be totally dissolved, &c. That the said declaration was on the ninth of July, in the year aforesaid, approved of by the Convention of the State of New York: and afterwards, on the 8th day of May, 1777, the same was recognized and confirmed by the legislature of this State.

That upon the 10th day of September, 1776, and from that time until after the last day of April, 1783, there being open war between, &c., the army of the said king, on the 10th day of September, 1776, conquered the city of New York, and continued in uninterrupted possession thereof, from that time until and after the last day of April, 1778; and the said army so being in possession, the said brew-house and malt-house, by virtue of authority from the commander-in-chief of the said army, on the 10tlı day of June, 1778, was taken possession of by the commissary-general of the said army, for the use of the - as by the laws, &c., of nations in time of war he lawfully might do - and that the said commissary on, &c., at, &c., gave his license and permission to Benjamin Waddington and Evelyn Pierrepont, residing in the said city as British merchants, under the protection of the said British army, and having been from their birth and still being subjects of the King of Great Britain, to enter into, use, and occupy the said malt-house and brew-house, from the said 28th day of September, 1778, inclusively, to the last day of April, 1780, inclusively: by virtue whereof they entered and occupied the premises, from the first of the two last-mentioned days to the last inclusively; and the defendant as their servant and at their command, from time to time, and at divers times from the first to the last of those days, entered into and occupied the said brew-house and malt-house, for the benefit of the said Benjamin and Evelyn: Quæ est eadem, &c. whereof the plaintiff complains, in the first count of her declaration.

And as to the occupying the said brew-house and malt-house, from the last day of April, 1780, to the 17th of March, 1783, he pleads over again the Declaration of Independence of these States; the approbation thereof by the Constitution of the State; and the recognition and confirmation thereof by the Convention; the conquest of the city of New York by the British; and that the brew-house and malt-house being out of the possession of the plaintiff, the commander-in-chief of the said army, on the last day of April, 1780, gave his license and permission (as by the laws of nations he might lawfully do) to the said Benjamin and Evelyn (describing them as in the other plea) to enter into and occupy the said brew-house and malt-house, from the last day of April, 1780, until the said license and permission should he revoked; paying therefore to such person as the commander-in-chief should authorize to receive the same, at the rate of one hundred and fifty pounds for each year, in quarterly payments, &c.

He then avers that they accordingly entered and occupied the said brew-house and malt-house, on the 1st day of May, 1780, and continued the occupation thereof until the 17th day of March, 1783, till when the said license remained in force; and then avers as before, that he as their servant, and at their command, from time to time and at divers times, between the two last-mentioned days, did enter and occupy the said brew-house and malt-house, &c., quce est eadem, &c., concluding with an averment, that the said Benjamin and Evelyn did pay the said one hundred and fifty pounds a year to John Smith, appointed by the said commander-in-chief to receive the same.

For further plea to the whole of the trespass, according to the form of the statute, the defendant saith, that the plaintiff actionem non, &c. Because he saith, that after the passing the Act of the Legislature of this State, in the declaration mentioned, to wit, on the 3d day of September, 1783, at, &c., a certain definitive treaty of peace, between the King of Great Britain and his subjects, and the United States and the subjects and citizens thereof and of each of them, was entered into, made and concluded by plenipotentiaries on the part of the said king and States respectively (naming them) in virtue of full powers, &c., which definitive treaty, on the 14th day of January, 1784, at Annapolis, &c., by the United States of America in Congress, then and there assembled in due form, was ratified and confirmed; and afterwards on the same day, announced and published by proclamation under the seal of the United States, to all the good citizens of the said United States; enjoining all magistracies, legislatures, &c. to carry into effect the said definitive treaty, &c., prout, &c. In virtue of which said definitive treaty, all right, claim, &c., which either of the said contracting parties, and the subjects and citizens of either of them might otherwise have had to any compensation, recompense, retribution, or indemnity whatsoever, for or by reason of any injury, or damage, whether to the public or individuals, which either of the said contracting parties, and the subjects and citizens of either might have done or caused to be done to the other, in consequence of, or in anywise relating to the war between them, from the time of the commencement to the determination thereof, were mutually and reciprocally, virtually and effectually, relinquished, renounced, and released to each other, &c. And he avers, as in his other plea, that from the time of his birth, and at all times since, he hath been and still is a subject of the King of Great Britain: and between the times in his plea mentioned, as a subject of the said king, resided in the city of New York, using the art, trade, &c., of a merchant, under the protection of the army of the said king, then waging war against the said State; et hoc paratus est verificari: wherefore he prays judgment whether the said plaintiff, her action against him ought to have or maintain; with this, that the said Joshua will verify that the whole of the trespass by him supposed to be committed, is for certain acts, &c., by him supposed to have been done while he was residing as a subject of the said king, and under the protection of the army of the said king, and in relation to the war aforesaid.

The plaintiff replies as to the plea of the defendant, as to the residue of the trespass, by him done as aforesaid, by him above pleaded in bar, that she by reason thereof ought not to be barred from her said action; because she says, that by the Act, &c., for granting a more effectual relief in cases of certain trespasses, in her declaration in part recited, it is also among other things enacted, that no defendant or defendants shall be admitted to plead in justification any military order, or command whatsoever of the enemy, for such occupancy: and avers, that the said commissary-general and commander-in-chief were, at the time of giving the permission or license, subjects to the said King of Great Britain, the enemy mentioned and intended by the Act aforesaid, and in the military service of the said king: wherefore seeing that the said Joshua hath acknowledged the trespass by him done as aforesaid, the said Elizabeth prays judgment and her damages, &c.

And as to the further plea of the said Joshua, to the whole of the trespass aforesaid by him pleaded in bar, the plaintiff demurs.

And the defendant on his part demurs to the plea of the plaintiff last above pleaded.

The pleadings close with joinders in demurrer, in the usual forms.

From these pleadings, and the arguments which they have produced, three questions are presented for our consideration:-

Ist. Whether the plaintiff's case is within the letter and intent of the statute on which this action is grounded?

Ildly. Whether the laws of nations give the captors, and defendant under them, rights which control the operation of the statute and bar the present suit?

IIIdly. Whether there is such an amnesty included or implied in the definitive treaty of peace, as virtually or effectually relinquishes or releases the plaintiff's demand under the said statute? ... [In a long and learned opinion, the court answers the first question in the affirmative, and the second and third in the negative. As regards, however, the act of the commander-in-chief in giving possession from April, 1780, to March, 1783, unlike the previous act of the commissary-general, it was held that it had relation to the war and was according to the laws of war, and was covered by the amnesty implied in making the treaty; and that as regards this period the plaintiff could not recover. The course of reasoning, far as the subject now in hand is concerned, is shown by the passages which follow.]

We must acknowledge there appears to us very great force in the observation arising from the federal compact. By this compact these States are bound together as one great independent nation; and with respect to their common and national affairs, exercise a joint sovereignty, whose will can only be manifested by the acts of their delegates in Congress assembled. As a nation they must be governed by one common law of nations; for on any other principles how can they act with regard to foreign powers; and how shall foreign powers act towards them? It seems evident that abroad they can only be known in their federal capacity. What then must be the effect? What the confusion ? if each separate State should arrogate to itself a right of changing at pleasure those laws, which are received as a rule of conduct, by the common consent of the greatest part of the civilized world.

We shall deduce only one inference from what hath been here observed - that to abrogate or alter any one of the known laws or usages of nations, by the authority of a single State, must be contrary to the very nature of the confederacy, and the evident intention of the articles, by which it is established, as well as dangerous to the Union itself....

It has been further objected, that Congress could form no treaty of peace to reach our internal police.

There is a great distinction between the authority of the treaty, and its operation and effects.

The first we hold to be sacred and shall never, as far as we have power, suffer it to be violated or questioned.

It is the great charter of America - it has formally and forever released us from foreign domination it has confirmed our sovereignty and independence; and ascertained our extensive limits.

Our Union, as has been properly observed, is known and legalized in our Constitution, and adopted as a fundamental law in the first Act of our Legislature. The federal compact hath vested Congress with full and exclusive powers to make peace and war. This treaty they have made and ratified, and rendered its obligation perpetual.

And we are clearly of opinion, that no State in this Union can alter or abridge, in a single point, the federal articles or the treaty.

But the operation and effects of the treaty, within our own State, are fit subjects of inquiry and decision: according to its spirit and true meaning we must determine our judgment; nor shall any man, by any act of ours, be deprived of the benefits which, on a fair and reasonable construction, he ought to derive from it.

On this occasion, we say with the sage, Fiat justitia ruat coelum....

The counsel for the defendant, by stating a number of pointed cases, showed clearly, from the nature of things, that the statute must admit of exceptions. Mr. Attorney-General, one of the counsel for the plaintiff, who argued the cause very ably, admitted that many cases may be out of the statute, though the plaintiff's is not of the Dumber.

Thus, then, it seems to be agreed, on both sides, that the provision in the statute, being general, cannot extend to all cases, and must therefore receive a reasonable interpretation according to the intention; and not according to the latitude of expression of the legislature: it follows as a necessary consequence, that the interpretation is the province of the court, and, however difficult the task, that we are bound to perform it.

The authorities which have been cited on the part of the defendant, not only establish this general principle, but bring forward a number of judicial decisions, wherein the courts of justice have exercised that power.

On the other side, the uncontrollable power of the legislature, and the sanctity of its laws, have been earnestly pressed by the counsel for the plaintiff; and a great number of authorities have been quoted to establish an opinion, that the courts of justice in no case ought to exercise a discretion in the construction of a statute.

However contradictory these authorities may appear to superficial observers, they are not only capable of being reconciled, but the result of the whole will appear to be wise, suited to human imperfection and easily explained.

The supremacy of the legislature need not be called into question; if they think fit positively to enact a law, there is no power which can control them. When the main object of such a law is clearly expressed, and the intention manifest, the judges are not at liberty, although it appears to them to be unreasonable, to reject it; for this were to set the judicial above the legislative, which would be subversive of all government.

But when a law is expressed in general words, and some collateral matter, which happens to arise from those general words, is unreasonable, there the judges are in decency to conclude, that the consequences were not foreseen by the legislature; and therefore they are at liberty to expound the statute by equity, and only quoad hoc to disregard it.

When the judicial make these distinctions, they do not control the legislature; they endeavor to give their intention its proper effect.

This is the substance of the authorities, on a comprehensive view of the subject; this is the language of Blackstone in his celebrated commentaries, and this is the practice of the courts of justice, from which we have copied our jurisprudence, as well as the models of our own internal judicatories. To apply these general remarks to the particular case under our consideration. The American prisoners of war, in the power of the enemy, were quartered in the houses of the exiles: they in fact occupied those houses by a military order or command, and are included within the general description of the statute, which, according to the letter, extends to all persons without any exception, who have so occupied or injured such houses. But can we force ourselves to believe, that the legislature could have been so unjust and oppressive as to add to the sufferings of the patriot soldier, consigned, after fighting the battles of his country, to a long captivity, by making him pay for fetters which he had worn in the service of his country, or for want of means, to undergo a second loss of liberty?

That the legislative, judicial, and executive powers of government should be independent of each other, is essential to liberty.

This principle entered deeply into our excellent Constitution, and was one of the inducements to the establishment of the Council of Revision, that the judicial and executive of whom it is composed, might have the means of guarding their respective rights, against the encroachments of the legislature, whether by design, "or by haste or unadvisedness." For this and other purposes, all bills, which have passed the Senate and Assembly, before they become laws, are to be presented to the council for their revisal and consideration; that if it should appear improper to them that any bill should become a law, it may be returned with their objections for further consideration, and become subject to the approbation of two-thirds of the members of each House, before it can be a law.

From this passage of our Constitution, Mr. Attorney seems to regard this determination of the Council of Revision on the law in question,

in the light of a judicial decision, by which this court ought to be guided, for the sake of uniformity in the dispensation of justice. But surely the respect, which we owe to this honorable council, ought not to carry us such lengths; it is not to be supposed, that their assent or objection to a bill can have the force of an adjudication; for what in such a case would be the fate of a law which prevailed against their sentiments ? Besides, in the hurry of a session, and especially flagrante bello, they have neither leisure nor means to weigh the extent and consequences of a law whose provisions are general, at least not with that accuracy and solemnity which must be necessary to render their reasons incontrovertible, and their opinions absolute. The institution of this council is sufficiently useful and salutary, without ascribing to their proceedings, effects so extraordinary; nor is it probable, that the high judicial powers themselves, would in the seat of judgment always be precluded, even by their own opinion given in the Council of Revision; for instance, if they had consented to a bill, general in its provision, and in the administration of justice they discovered that, according to the letter, it comprehended cases which rendered its operation unseasonable, mischievous, and contrary to the intention of the legislature, would they not give relief? Surely it cannot be questioned.

Upon the whole, this being a statute is obligatory, and being general in its provisions, collateral matter arises out of the general words, which happens to be unseasonable. The court is therefore bound to conclude, that such a consequence was not foreseen by the legislature, to explain it by equity, and to disregard it in that point only, where it would operate thus unseasonably.

The questions then, whether this statute hath in any respect revoked the law of nations, or is repealed by the definitive treaty of peace, or foreign to the circumstances of the case: neither will happen, nor ought to be apprehended.

There is not a tittle in the treaty to which the statute is repugnant. The amnesty is constructive, and made out by reasoning from the law of nations to the treaty.

The repeal of the law of nations, or any interference with it, could not have been in contemplation, in our opinion, when the legislature passed this statute; and we think ourselves bound to exempt that law from its operation: first, because there is no mention of the law of nations, nor the most remote allusion to it, throughout the whole statute; secondly, because it is a subject of the highest national concern and of too much moment to have been intended to be struck at in silence; and to be controlled implicatively under the generality of the terms of the provision; thirdly, because the provision itself is so indefinite, that without any control it would operate in other cases unreasonably, to the oppression of the innocent, and contrary to humanity; when it is a known maxim "that a statute ought to be so construed, that no man who is innocent be punished or endamaged;" fourthly, because the statute under our consideration doth not contain even the common non obstante clause, though it is so frequent in our statute book, "and it is an established maxim, where two laws are seemingly repugnant, and there be no clause of non obstante in the latter, they shall, if possible, have such construction, that the latter may not repeal the former by implication; fifthly, because although it is a true rule that posteriores leges prioribus derogant, to use the language of Sir Thomas Powis in the Duchess of Hamilton's Case, - at the same time it must be remembered, that repeals by implication are disfavored by law, and never allowed of but where the inconsistency and repugnancy are plain, glaring, and unavoidable: for these repeals carry along with them a tacit reflection upon the legislature, that they should ignorantly, and without knowing it, make one Act repugnant to and inconsistent with another; and such repeals have ever been interpreted so as to repeal as little of the precedent law as possible.

The plaintiff's counsel, who themselves argued in favor of this last proposition, adduced several authorities to support it.

Whoever then is clearly exempted from the operation of this statute by the law of nations, this court must take it for granted, could never have been intended to be comprehended within it by the legislature....

We have gone further perhaps into many important subjects, which have been brought into view by this controversy, than was strictly necessary; but it is time that the law of nations and the nature and effects of treaties should be understood: and in the infancy of our republic, every proper opportunity should be embraced to inculcate a sense of national obligation, and a reverence for institutions, on which the tranquillity of mankind, considered as members of different States and communities, so essentially depends.

Besides the maxim interest reipublicae ut sit finis litium, never applied more forcibly than it now doth to us in our present circumstances; and it is hoped by being thus explicit, we may ease the minds of a multitude of suitors whose causes are depending here under this statute – at all events we shall relieve this court from an unusual weight of judicial examination, which a want of time renders incompatible with our other public and indispensable duties.

Upon the whole, it is the opinion of this court, that the plea of the defendant as to the occupancy of the plaintiff's brew-house and malt-house, between the 28th day of September, 1778, and the last day of April, 1780; and the last plea of the defendant as to the whole of the trespass, charged in the plaintiff's declaration, are insufficient in the law; and that only the plea of the defendant in justification of the occupancy between the last day of April, 1780, and the 17th day of March, 1783, is good and sufficient in the law.

Let judgment be entered accordingly.(2)

(1) Pamphlet, New York. Printed by Samuel London. 1784. Edited, with an Historical Introduction, by Henry B. Dawson. Morrisania, N. Y. 1866. (2) See Mr. Dawson's introduction for an account of the excitement to which this opinion gave rise. A meeting was called, and an address "To the People of the States” was issued Nov. 4, 1784, bitterly complaining of the decision. The writers say: “From what has been said we think that no one can doubt of the meaning of the law. It remains to inquire whether a court of judicature can consistently, with our Constitution and laws, adjudge contrary to the plain and obvious meaning of a statute. That the Mayor's Courts have done so in this case we think is manifest from the aforegoing remarks. That there should be a power vested in courts of judicature, whereby they might control the supreme legislative power, we think is absurd in itself. Such power in courts would be destructive of liberty, and remove all security of property. The design of courts of justice in our government from the very nature of their institution, is to declare laws, not to alter them. Whenever they depart from this design of their institution, they confound legislative and judicial powers. The laws govern where a government is free; and every citizen knows what remedy the laws give him for every injury. But this cannot be the case where courts, if they deem a law to be unreasonable, may set it aside. Here, however plainly the law may be in his favor, he cannot be certain of redress until he has the opinion of the court.” This address was signed by Melancton Smith, Thomas Tucker, Peter Riker, Daniel Shaw, Jonathan Lawrence, Adam Gilchrist, Jr., Anthony Rutgers, John Wiley, Peter T. Curtenius. The House of Assembly of the State at about the same time, by a vote of 25 to 15, adopted a preamble and the following resolution: “Resolved, that the judgment aforesaid is, in its tendency, subversive of all law and good order, and leads directly to anarchy and confusion; because if a court instituted for the benefit and government of a corporation may take upon them to dispense with and act in direct violation of a plain and known law of the State, all other courts, either superior or inferior, may do the like; and therewith will end all our dear-bought rights and privileges, and legislatures become useless.' It is said," continues the editor, “that Mr. Waddington, alarmed at these manifestations, and at the threatened appeal and writ of error, soon after compromised with Mrs. Rutgers; and the entire subject became matter of history, and, soon after, was entirely forgotten by the great body of those who were most interested in the great political principles which have been involved - those who had been most active in condemning the action of the court, appear to have thought no more of the subject.”