Pollard v. Hagan, 44 U.S. (3 How.) 212 (1845)

,411; Grijjtngy. Gibb, McAll., 212. Pere Marquette Boom Co. v. Adams, p 7S 1° r ordinance of 1795, see 44 Mich., 405. See also Strader v. wambiis Ins. Co. v. Curtenius, 6 Graham, 10 How., 95; Dred Scott v Seer’5Ind 812’ 217’ v> Sanford, 19 Id., 490, 501, 506, 508. p. 240decide the first point raised in the bill of exceptions, viz.: that Congress had no right to grant the land to the city of Mobile.”

In 14 Pet., 361, the land in question was situated just like this, and the title was confirmed. So in 16 Pet., 234, 245. In p. 241these two cases there is an implied opinion of the court upon the point now under consideration, and the expressed opinion of one judge. 16 Pet., 262, 266.

It appears, therefore, that the Supreme Court of Alabama studied the subject, and there is no adverse decision in this or any state court. On the contrary, the decision of Alabama has been sustained by this court in principle. *21^-1 A right to the shore between high and low water- p. 243them passes with a transfer of sovereignty. 16 Pet., 367, 413, 410, 416.

Ooxe, in reply, insisted, that former decisions of this p. 244court cover this case. The nature of the ground in question is fully shown in 9 Port. (Ala.), 580, 581; that the tide rises one and a half or two feet. In 10 Peters, 667, property similarly situated is described, where the water would overflow unless confined by banks. It has been said, that the United States cannot exercise acts of ownership over it, but it is conceded that Spain had and exercised jurisdiction to the extent of granting it to individuals. 10 Pet., 679, 680, 681; attorney-general’s opinion, 16 Id., 252 ; 9 Port. (Ala.), 591.

The Massachusetts colony act of 1691 grants numerous p. 246pieces of flats to the proprietors of the adjoining uplands. This was in strict conformity with the English law. The soil on which the sea flows and ebbs, that is, between high and low water-marks, may be parcel of a manor. Where the tide flows, it is within the jurisdiction of the admiralty; where the tide ebbs, the land may belong to a subject. Everything done on the land when the sea is out, shall be tried at common law; 5 Co., 107, Constable’s case. In New York and New Jersey, the inlets of the sea on Long Island and between the Passaic and Hackensack, have all been reclaimed and converted into meadows. When New York claimed the entire jurisdiction of the North river, she never thought of claiming the

*“The defendants, to maintain the issue on their L part, introduced a witness to prove that the premises in question, between the years 1819 and 1823, were covered by water of the Mobile river at common high tide;” to which evidence the plaintiffs by their counsel objected; but the court overruled the objection, and permitted the evidence to go to the jury. “It was also in proof, on the part of the defendant, that at the date of the Spanish grant to Pan ton, Leslie & Co., under which they claim, the waters of the Mobile bay, at high tide, flowed over what is now Water street, and over about one-third of the lot west of Water street, conveyed by the Spanish grant to Panton, Leslie & Co.; and that the waters continued to overflow Water street, and the premises sued for, during all the time up to 1822 or 1823 ; to all which admissions of evidence, on part of the defendants, the plaintiffs excepted.” . “The court charged the jury, that if they believed the premises sued for were below usual high water-mark, at the time Alabama was admitted into the union, then the act of Congress, and the patent in pursuance thereof, could give the plaintiffs no title, whether the waters had receded by the labor wiman on^’ or by alluvion ; to which the plaintiffs excepted. Whereupon a verdict and judgment were rendered in favor of ie defendants, and which judgment was afterwards affirmed the Supreme Court of the state.” . his question has been heretofore raised, before this court, m cases from the same state, but they went off upon other points. As. now presented, it is the only question necessary 6° ri6 i eei^lon the case before us, and must, therefore, be eci et. And we now enter into its examination with a just euse o its great importance to all the states of the union, and p. 248particularly to the new ones. Although this is the first time we have been called upon to draw the line that separates the sovereignty and jurisdiction of the government of the union, and the state governments, over the subject in controversy, many of the principles which enter into and form the elements of the question have been settled by previous, well considered, decisions of this court, to which we shall have occasion to refer in the course of this investigation.

All that part of Alabama which lies between the thirty-first and thirty-fifth degree of north latitude, was ceded by the p. 249state of Georgia to the United States, by deed bearing date the 24th day of April, 1802, which is substantially, in all its principles and stipulations, like the deed of cession executed by Virginia to the United States, on the 1st day of March, 1784, by which she ceded to the United States the territory north-west of the river Ohio. Both of these deeds of cession stipulated, that all the lands within the territory ceded, and not reserved or appropriated to other purposes, should be considered as a common fund for the use and benefit of all the United States, to be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatever. And the statute passed by Virginia authorizing her delegates to execute this deed, and which is recited in it, authorizes them, in behalf of the state, by a proper deed to convey to the United States, for the benefit of said states, all the right, title, and claim, as well of soil as jurisdiction, “ upon condition that the territory so ceded shall be laid out and Tormed into states, containing a suitable extent of territory, not less than 100, nor more than 150 miles square, or as near thereto as circumstances will admit: and that the states so formed shall be republican states and admitted members of the federal union, having the same rights of sovereignty, freedom, and independence, as the other states.” And the delegates conclude the deed thus: “Now know ye, that we, the said Thomas Jefferson, Samuel Hardy, Arthur Lee, and James Mon- pA» roe, by virtue of the *power and authority committed to us by the act of the said general assembly of Virginia before recited, and in the name and for and on behalf of the said commonwealth, do by these presents convey, transfer, assign, and make over unto the United States in Congress assembled, for the benefit of said states, Virginia inclusive, all right, title, and claim, as well of soil as of jurisdiction, which the said commonwealth hath to the territory or tract of country within the limits of the Virginia charter, situate, tying, and being to the north-west of the river Ohio, to and tor the uses and purposes, and on the conditions of the said recited act.”

And in the deed of cession by Georgia it is expressly stipuatea, ‘‘That the territory thus ceded shall form a state and e admitted as such into the union as soon as it shall contain six y thousand free inhabitants, or at an earlier period if ongress shall think it expedient, on the same conditions and res. notions, with the same privileges, and in the same manner, as is provided in the ordinance of Congress of the 13th day + ktt ^°r ^overnment’ of the north-western terri°ry o the United States, which ordinance shall in all its parts p. 250extend to the territory contained in the present act of cession, that article only excepted which forbids slavery.” The manner in which the new states were to be admitted into the union, according to the ordinance of 1787, as expressed therein, is as follows: “And whenever any of the said states shall have sixty thousand free inhabitants therein, such state shall be admitted by its delegates into the Congress of the United States, on an equal footing with the original states in all respects whatever.” Thus it appears that the stipulations, trusts, and conditions, are substantially the same in both of these deeds of cession; and the acts of Congress, and of the state, legislatures in relation thereto, are founded in the same reasons of policy and interest, with this exception, however—the cession made by Virginia was before the adoption of the Constitution of the United States, and that of Georgia afterwards. Taking the legislative acts of the United States, and the states of Virginia and Georgia, and their deeds of cession to the United States, and giving to each, separately, and to all jointly, a fair interpretation, we must come to the conclusion that it was the intention of the parties to invest the United States with the eminent domain of the country ceded, both national and municipal, for the purposes of temporary government, and to hold it in trust for the performance of the stipulations and conditions expressed in the deeds of cession and the legislative acts connected with them. To a correct understanding of the rights, powers, and duties of the parties to these contracts, it is necessary to enter into a more minute examination of the rights of eminent domain, and the right to the public lands. When the United States accepted the cession of the territory, they took upon themselves the trust to hold *ooqq the municipal eminent domain for the new states, and to invest them with it, to *the same extent, in all respects, that it was held by the states ceding the territories.

244. This definition shows, that the eminent domain, although a sovereign power, does not include all sovereign power, and this explains the sense in which it is used in this opinion. The compact made between the United States and the state of Georgia, was sanctioned by the Constitution of the United States; by the 3d section of the 4th article of which it is declared, that “ New states may be admitted by the Congress p. 251into this union; but no new state shall be formed or erected within the jurisdiction of any other state, nor any state be formed by the junction of two or more states or parts of states, without the consent of the legislatures of the states concerned, as well as of Congress.”

By the 16th clause of the 8th section of the 1st article of the p. 252Constitution, power is given to Congress “ to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may by cession of particular states, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased, by the consent of the legislature of the state in which the same may be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.” Within the District of Columbia, and the other places purchased and used for the purposes above mentioned, the national and municipal powers of government, of every description, are united in the government of the union. And these are the only cases, within the United States, in which all *9941 Powers of government are united in a single govern-

Whenever the United States shall have fully executed these trusts, the municipal sovereignty of the new states will be complete, throughout their respective borders, and they, and the original states, will be upon an equal footing, in all respects whatever. We, therefore, think the United States hold the public lands within the new states by force of the deeds of cession, and the statutes connected with them, and not by any municipal sovereignty which it may Ije supposed they possess, or have reserved by compact with the new states, for that particular purpose. The provision of the Constitution p. 253above referred to shows that no such power can be exercised by the United States within a state. Such a power is not only repugnant to the Constitution, but it is inconsistent with the spirit and intention of the deeds of cession. The argument so much relied on by the counsel for the plaintiffs, that the agreement of the people inhabiting the new states, “ that they for ever disclaim all right and title to the waste or unappropriated lands lying within the said territory; and that the same shall be and remain at the sole and entire disposition of the United States,” cannot operate as a contract between the parties, but is binding as a law. Full power is given to Congress “ to make all needful rules and regulations respecting the territory or other property of the United States.” This authorized the passage of all laws necessary to secure the rights of the United States to the public lands, and to provide for their sale, and to protect them from taxation.

P^esume the treaty of the 22d of February, 1819, o a W ashingtoii, was the one relied on, and shall so p. 254consider the argument. It was insisted that the United States had, under the treaty, succeeded to all the rights and powers of the King of Spain; and as by the laws and usages of Spain, the king had the right to grant to a subject the soil under navigable waters, that, therefore, the United States had the right to grant the land in controversy, and thereby the plaintiffs acquired a complete title.

Previous to the cession made by Georgia, the United States, by the act of Congress of the 7th of April, 1798, had established the Mississippi territory including the territory west of the Chatahouchee river, to the Mississippi river, above the 31st degree of north latitude, and below the Yazous river, subject to the claim of Georgia to any portion of the territory. And the territory thus erected was subjected to the ordinance of the 13th of July, 1787, for its government, that part of it excepted which prohibited slavery: 1 Story’s Laws, 494. And by the act of the 1st of March, 1817, having first obtained consent of Georgia to make two states instead of one within the ceded territory, Congress authorized the inhabitants of the western part of the Mississippi territory to form for themselves a constitution and state government, “ to consist of all the territory included within the following boundaries, to wit: Beginning on the river Mississippi at the point where thfe southern boundary line of the state of Tennessee strikes the same; thence east along the said boundary line to the Tennessee river; thence up the same to the mouth of Bear creek: thence by a direct line, to the north-west corner of Washington county; thence due south to the Gulf of Mexico; thence westwardly, including all the islands within six leagues of the shore, to the junction of Pearl river with Lake Borgne; thence up said river to the thirty-first degree of north latitude; thence west along said degree of latitude to the Mississippi river; hence UP the same to the beginning.” 3 Story’s Laws, 1620. *And on the 3d of March, 1817, Congress passed I-an act declaring, “ That all that part of the Mississippi territory which lies within the following boundaries, to wit: Beginning at the point where the line of the thirty-first degree of north latitude intersects the Perdido river; thence east to the western boundary line of the state of Georgia; thence along sai. line to the southern boundary line of the state of Tennessee, hence west, along said boundary line, to the Tennessee river, thence up the same to the mouth of Bear creek; thence y a direct line to the north-west corner of Washington ou-n J » thence due south to the Gulf of Mexico; thence as waidly, including all the islands within six leagues of the re o he Perdido river; thence up the same to the p. 256beginning; shall, for the purposes of temporary government, constitute a separate territory, and be called Alabama.

It was after the date of the treaty of the 22d of February, 1819, between the United States and Spain, but before its ratification, the people of the Alabama territory were authorized to form a constitution; and the state was admitted into the union, according to the boundaries established when the country was erected into a territorial government. But the United States have never admitted that they derived title from the Spanish government to any portion of the territory included within the limits of Alabama. Whatever claim Spain may have asserted to the territory above the thirty-first degree of north latitude, prior to the treaty of the 27th of October, 1795, was abandoned by that treaty, as has been already shown. We will now inquire whether she had any right to territory below *the thirty-first degree of north latitude, after the treaty between France and the United States, signed at Paris on the 30th of April, 1803, by which Louisiana was ceded to the United States. Ihe legislative and executive departments of the government have constantly asserted the right of the United States to this portion of the territory under the 1st article of this treaty; and a series of measures intended to maintain the right have been p. 257adopted. Mobile was taken possession of, and erected into a collection district, by act of the 24th of February, 1804, chap. 13, (2 Story’s Laws, 914.) In the year 1810, the President issued his proclamation, directing the governor of the Orleans territory to take possession of the country, as far as the Perdido, and hold it for the United States. In April, 1812, Congress passed an act to enlarge the limits of Louisiana. This act includes part of the country claimed by Spain, as West Florida. And in February, 1813, the President was authorized to occupy and hold all that tract of country called West Florida, which lies west of the river Perdido, not then in the possession of the United States. And these measures having been followed by the erection of Mississippi territory into a state, and the erection of Alabama into a territory, and afterwards into a state, in the year 1819, and extending them both over this territory: could it be doubted that these measures were intended as an assertion of the title of the United States to this country?

Alabama is therefore entitled to the sovereignty and jurisiction over all the territory within her limits, subject o e common law, *to the same extent that Georgia possessed it before she ceded it to the United States. To p. 258maintain any other doctrine, is to deny that Alabama has been admitted into the union on an equal footing with the original states, the constitution, laws, and compact, to the contrary notwithstanding. But her rights of sovereignty and jurisdiction are not governed by the common law of England as it prevailed in the colonies before the Revolution, but as modified by our own institutions. In the case of Martin and others v. Waddell, 16 Pet., 410, the present chief justice, in delivering the opinion of the court, said: “ When the Revolution took place, the people of each state became themselves sovereign; and in that character hold the absolute right to all their navigable waters, and the soils under them for their own common use, subject only to the rights since surrendered by the Constitution.” Then to Alabama belong the navigable waters, and soils under them, in controversy in this case, subject to the rights surrendered by the Constitution to the United States; and no compact that might be made between her and the United States could diminish or enlarge these rights.

“ It is the power to regulate, that is, to prescribe the rule by which commerce is to be governed. This power, like all others vested in Congress, is complete in itself, may be exercised to its utmost extent, and acknowledges no limitations other than are prescribed in the Constitution. These are p. 259expressed, in plain terms, and do not affect the questions which arise in this case. If, as has been always understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over *com- L merce with foreign nations, and among the several states, is vested in Congress as absolutely as it would be in a single government having in its constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States.” As the provision of what is called the* compact between the United States and the state of Alabama does not, by the above reasoning, exceed the power thereby conceded to Congress over the original states on the same subject, no power or right was, by the compact, intended to be reserved by the United States, nor to be granted to them by Alabama.

and the laws which shall be made in pursuance thereof.”1 , the preceding course of reasoning we have arrived at ese general conclusions: First, The shores of navigable wa ers, and the soils under them, were not granted by the Cons i u ion to the United States, but were reserved to the states respectively. Secondly, The new states have the same rights, overeignty, and jurisdiction over this subject as the original hnd8' ^ie right of the United States to the public s, ana the power of Congress to make all needful rules p. 260and regulations for the sale and disposition thereof, conferred no power to grant to the plaintiffs the land in controversy in this case. The judgment of the Supreme Court of the state of Alabama is, therefore, affirmed.

In the mean time, between 1840 and 1844, a doctrine had sprung up in the courts of Alabama, (previously unheard o in any court of justice in this country, so far as I know,) assuming that all lands temporarily flowed with tide-water were part of the eminent domain and a sovereign right in the old states; and that the new ones when admitted into the union, coming in with equal sovereign rights, took the lands thus flowed by implication as an incident of state sovereignty, and thereby defeated the title of the United States, acquire either by the treaty of 1803, or by the compacts with Virginia or Georgia. Although the assumption was new in the courts, it was not entirely so in the political discussions of the conn ry, there it had been asserted, that the new states, coming in, witn equal rights appertaining to the old ones, took the high lands as well as the low, by the same implication now successfu y serted here in regard to the low lands; and indeed it is difiic p. 261to see where the distinction lies. That the United States acquired in a corporate capacity the right of soil under water, as well as of the high lands, by the treaty with France, cannot be doubted; nor that the right of soil was retained and subject to grant up to the time Alabama was admitted as a state. Louisiana was admitted in 1812; to her the same rules must apply that do to Alabama. All acquainted with the surface of the latter know that many of the most productive lands there, and now in successful cultivation, were in 1812 subject to overflow, and have since been reclaimed by levees.

Again: the question before us is made to turn by a majority of my brethren exclusively on political jurisdiction ; the right of property is a mere incident. In such a case, where there is doubt, and a conflict suggested, the political departments, state and federal, should settle the matter by legislation: by tms means private owners could be provided for and confusion avoided; but no state complains, nor has any one ever comh tt °£ infraction of her political and sovereign rights y the United States, or by their agents, in the execution of e great trust imposed on the latter to dispose of the public Q^aam tor the common benefit; on the contrary, we are ca ed on by a mere trespasser in the midst of a city, to assert p. 262and maintain this sovereign right for his individual protection, in sanction of the trespass.

The front of the city of Mobile is claimed by the act of 1824, sanctioned by this court as a valid grant in the five cases of Pollard v. Kibbe, 14 Pet.; of The City of Mobile n. Eslava, 16 Id., 234; of the same plaintiff v. Hallet, 16 Id., 261; of the same plaintiff v. Emanuel, 1 How., 95, and of Pollard v. Files, 2 Id., 591. Except the grant to Pollard, the act of 1824 confers the entire title, (so far as is known to this court,) of a most valuable portion, and a very large portion, of the second city on the Gulf of Mexico, in wealth and population. This act is declared void in the present cause; and the previous decisions of this court are either directly, or in effect, overthrown, and the private owners stripped of all title. On this latter point my brethren and I fully agree: Can Alabama remedy the evil, and confirm the titles by legislation or by patent ? I say by patent, because this state, Louisiana, Mississippi, and surely Florida, will of necessity have to adopt some system of giving title if it is possible to do so, aside p. 263from private legislation; as the flowed lands are too extensive and valuable for the latter mode of grant in all instances.

In Elliott n. Swartwout, 10 Pet., 137, p. 267Whereupon, on motion of the plaintiffs by their counsel, it was ordered, that the foregoing state of the pleadings and facts, which is made under the direction of the judges, be certified under the seal of this court, according to the statute in such case made and provided, to the Supreme Court of the United States, to the end, that the question on which the said disagreement has happened may be finally decided.

’ n deciding the law thereon, the plaintiffs p. 268respectively ask the court to consider in what widely different language such an intent must needs have been expressed. There must have been an express prospective provision of some mode of proving the facts of each case, consistent with the constitutional guaranty of the right of trial by jury; for up to the passing of the act in question, the law had, by necessary implication, and by the known course of judicial proceedings in such cases, recognised this right as the right of all importers paying such duties under protest, and the means of an ulterior decision of all questions of law other than the opinion of the secretary would have been provided; whereas this law, by authorizing the Secretary to repay such illegally exacted duties when he should be satisfied they ought to be repaid, has left open to importers their known and constitutional right of recourse to the tribunals of law when he should not be satis#000-1 fied; so that the true construction of the provision giv-* ing *him such a power may be carried into full effect, to the utmost inferrible intention from the terms of this section, quite consistently with leaving to all importers their remedy at law, as well as the privilege of applying to the Secretary at their option.

The money being withdrawn from the collector s hands oy law, it would seem unjust that he should be exposed to a judgment and execution thereon; but this section provides that it shall be the duty of the secretary to refund, and thus the collector is indemnified, which is equivalent to a right ot retaining money paid under protest, as laid down in the case of Elliott v. Swartwout, 10 Pet., 154, where the court speak ot p. 269the collector’s protecting himself by retaining the money or claiming an indemnity; but if not strictly an indemnity, and it should be found in practice that the collector was not reimbursed, he would refrain from exacting duties in doubtful cashes until he had the sanction of the Secretary, and his assurance that the money should be repaid upon the recovery of a judgment at law. And this court held, in the case of Tracy and Balestier v. Swartwout, 10 Pet., 98, 99, that the personal inconvenience to the collector is not to be considered.

Persen or persons entitled to the over-payment, treasurer to refund the same out of any thn m j Treasury not otherwise appropriated.” What is npn Joni? an import of this provision, taking it indeS&rJ016’ Tt is that thereafter under nrnLaf x.ctor ^unascertained duties, or duties paid P » (i. e., with notice of objection by the payer,) p. 272shall, notwithstanding such notice, be placed to the credit of the treasurer, kept and disposed of as all other money paid for duties is required by law to be kept and disposed of; that is, they shall be paid over by the collector, received by the treasurer, and disbursed by him in conformity with appropriations by law, precisely as if no notice or protest had been given or made; and shall not be retained by the collector (and consequently not withdrawn from the uses of the government) to await any ascertainment of duties, or the result of any litigation relative to the rate or amount of duties, in any case in which money is so paid.

1839, was the public law of the United States; it 24*operated as notice to every one; it applied, of course, to every citizen as well as to officers concerned in the regu a tions of the revenue; and as it removed the implications on which the decision of Elliott v. Swartwout materially rested, that case cannot correctly control a question arising under a p. 273different state of the law, and under a condition of the parties also essentially different.

t has been urged that the clause of the act of 1839 ec anng that the monev received shall not be held by any p. 274collector to await any ascertainment of duties, or the result of any litigation in relation *to the rate or amount of duties legally chargeable and collectible in any case where money is so paid; shows that Congress did not mean to deprive the party of his action of assumpsit against the collector: that litigation of that description was still contemplated, and that the only object of the law was to place the money in dispute in the possession of the treasurer, to await a decision, instead of leaving it in the hands of the collector. The court cannot assent to this construction. It will be remembered that the two principal cases in which collectors have claimed the right to retain, have been those of unascertained duties, and of suits brought, or threatened to be brought, for the recovery of duties paid under protest. It is matter of history that the alleged right to retain on these two accounts, had led to great abuses, and to much loss to the public; and it is to -these two subjects, therefore, that the act of Congress particularly addresses itself. It begins by declaring that all money received on these accounts shall be paid into the Treasury; and then, in order to show that the collector is not the person with whom any claims for this money are to be adjusted, or who is to be held responsible for it, the act proceeds to declare that the money shall not remain in his hands even if the protest is followed by a suit: that, notwithstanding suit may be brought against him, he shall still pay the money into the Treasury, and that the controversy shall be adjusted with the Secretary. Congress supposed, probably, that a party might choose to sue the collector, as has been done in this instance; but it does not by any means follow, that it was intended to make him liable in the suit, or to give the party the right of recovery against him. The words used go to show, that neither a protest which is mentioned in the first part of the' section, nor a suit which is mentioned in the clause of which we are speaking, shall be a pretext or excuse for retaining the money. Suppose the words in relation to a litigation had been omitted, and the law had said, that the collector should not retain the money for any ascertainment of duties, but that the Secretary of the Treasury in that case, as well as in the case of duties paid under protest, should adjust the claim and pay what was really due. The omission supposed would have strongly implied that, if there was litigation, he might retain, and it might be said with much show of reason, that by forbidding him to retain for unascertained duties, but not forbidding him to retain in case of litigation for duties paid under protest, implied that he could not retain for the former but might for the latter. We hold it not a p. 275logical mode of reasoning where the omission of words would evidently lead to a particular conclusion, to argue that their insertion can do the same thing. Besides, the litigation spoken of, and which is said to lead to this result, is a litigation for duties paid under protest, and not for over-payments of unascertained duties. If these words were intended to sanction suits against collectors for the former, why are r*244 litigations *for the latter not also countenanced ? In- •- dependently of this statute, the collector might have been sued for over-payments on unascertained duties as well as for duties paid under protest. And it can hardly be reconciled with reason or consistency that Congress designed to preserve the right of suit in the one case, and to deny it in the other. Yet if these words have the force contended for by the defendant in error, they give the right of action against the collector for duties paid under protest only, leaving the party who has overpaid unascertained and estimated duties, no remedy but that of resorting to the Secretary of the Treasury. It would be difficult to assign any good reason for such a diversity; we think none such was intended, that none such in reality exists, that the law intends merely to declare that if the protest is. followed by a suit, the duties in that case as well as in the other, shall be paid into the Treasury and shall not remain in the hands of the collector to abide the result of the suit. The conclusion to which we have come upon this statute is greatly strengthened by the act of Congress of May 31st, 1844, ch. 31, which, in suits brought by the United States for the enforcement of the revenue laws, or for the collection of duties due or alleged to be due on merchandise imported, authorizes a writ of error from this court to the Circuit Courts without regard to the sum in controversy. The object of this law undoubtedly was, to obtain uniformity of decision in regard to the duties imposed. Prior to the act of 1839 there were often differences of opinion in the circuits in the construction of the laws, and in instances too in which the amount in controversy was too small to enable either party to bring them here for revisal by writ of error. It can hardly then be imagined that when Congress was taking measures expressly to secure uniformity of decision and practice in relaxon to the amount of duties imposed by law, they would ave confined the writ of error to cases brought by the United ates, when they were of small amount, and refused it in suits against collectors in similar controversies, if they supposed ia such suits could still be maintained. Indeed it has hereo ore been in this latter form that the amount of duties c aimed has been far more frequently contested, than by p. 276suits brought by the United States. And if this form of trying the question had not been intended to be taken away by the act of 1839, there could have been no reason for excluding it from the act of 1844. For the purposes obviously designed by this law, it would have been much more important to the public to have allowed the writ of error in suits against collectors, than in suits instituted by the United States, supposing suits of the former description to be still maintainable; and the omission of such a remedy strongly implies that the legislature supposed such suits could be no longer maintained.

But whilst it has been deemed proper, in examining the ques ion referred to by the Circuit Court, to clear it of embarrassments with which, from its supposed connection with the ¡06^^ +h+°n’ is bought to be environed, this court feel sate at such embarrassments exist in imagination only and in reality: that the case and the question now before them p. 278present no interference with the Constitution in any one of its provisions, and may be, and should be disposed of upon the plainest principles of common right. In testing these propositions it is proper to recur to the case of Elliott and Swartwout, and again to bring to view the grounds on which that case was ruled. It was, unquestionably, decided upon principles which may be admitted in ordinary cases of agency, which expressly recognize the right, nay, the duty of the agent to retain, and make his omission so to retain an ingredient in the gravamen or breach of duty, whence his liability and his promise are implied by the law. The language of the court, 10 Pet., 154, is this: “ There can be no hardship in requiring the party to give notice to the collector that he considers the duty claimed illegal, and put him on his guard by requiring him not to pay over the money. The collector would then be placed in a situation to claim an indemnity from the government. But if the party is entirely silent, and no intimation is given of an intention to seek repayment of the money, there can be no ground upon which the collector can retain the money, or call upon the government to idemnify him against a suit.” Here then the right and the duty of retainer are sanctioned in the officer; without them the notice spoken of would be nugatory—a vain act, which the law never requires. And this right and this duty in the officer, and this injunction of. notice to him, must all be understood and are propounded in this decision as principles or precepts of the law, with the knowledge of which each of the parties must stand affected.

-* which is the property *of the plaintiff, and which the defendant is obliged by the ties of natural justice and equity to refund. And by Buller, Justice, in Stratton v. Rastall^ 2 T. R., 370, “that this action has been of late years extended on the principle of its being considered like a bill in equity. And, therefore, in order to recover money in this form of action the party must show that he has equity and conscience on his side, and could recover in a court of equity.” These are the general grounds of the action as given from hig authority. There must be room for implication as between the parties to the action, and the recovery must be ex equo et bono, or it can never be. If the action is to depend on e principles laid down by these judges, and especially by Buller, a case of hardship merely could scarcely be founded upon them; much less could one of injustice or oppression, nor even one which arose from irregularity or indiscretion in the p am p. 279tiff’° own conduct. So far as the liability of agents in this form of action appears to have been considered, the general rule certainly is, that the action should be brought against the principal and not against a known agent, who is discharged from liability by a bona fide payment over to his principal, unless anterior to making payment over he shall have had notice from the plaintiff of his right and of his intention to claim the money. The absence of notice will be an exculpation of the agent in every instance. And with regard to the effect of the notice in fixing liability upon the agent, that effect is dependent on the known powers of the agent and the character of his agency. If, for instance, the agent was known to be a mere carrier or vehicle to transfer to his employer the amount received, payment to the agent with such knowledge, although accompanied with a denial of the justice of the demand, would seem to exclude every idea of an agreement express or implied on the part of the agent to refund; and could furnish no ground for this action against the agent who should pay over the fund received to his principal. This doctrine is believed to be sanctioned by the cases of Greenaway v. Hurd, 4 T. R. 553, of Coles v. Wright, 4 Taunt., 198, and of Tope v. Hockin, 7 Barn. & C., 101. ’Tis true that the case in Taunt, and that from Barn. & C., were not instances of payment under protest; but the case from 4 T. R., has this common feature with that before us, that it was an action against an excise officer for duties said to have been illegally collected, in which the plaintiff denied the legality of the demand, though he subsequently paid it. But all three of these cases concur in condemning the harshness of a rule which would subject an agent, who is a mere channel of conveyance or delivery of the amount which might pass through his hands. Neither of these cases was affected by a positive statutory mandate requiring the agent to make payment over to his principal.

• Parties by positive law, or by inevitable legal m endment, every foundation for the promise and of the action upon it is destroyed; for none can be presumed or permitted 0 Promise what either law or reason does not warrant or may ac ua y forbid. Thus, where bankers received bills from their oreign correspondents, with directions to pay the amount to ie p aintiff, but on being applied to by him refused to do so, p. 280although they afterwards received the amount of these bills it was held, that an action for money had and received would not lie to recover it from them, there being no privity between them and the plaintiff. Lord Ellenborough observed, the defendants might hold for the benefit of the remitter, until by some engagement entered into by themselves with the persons who were the objects of the remittance, they had precluded themselves from so doing; but here, so far from there being such an engagement, they repudiated it altogether. Williams v. Everett, 14 East, 582. Again, where J., an attorney, who was accustomed to receive dues for the plaintiff, went from home, leaving B., his clerk, at the office; B., in the absence of his master, received money on account of the above dues for the client, which he was authorized to do, and gave a receipt “ B., for Mr. J.” J. was in bad circumstances when he left home, and never returned. B. afterwards refused to pay the money to the client, and on an action for money had and received against him, it was held not to lie; for the defendant received the money as the agent of his master, and was accountable to him for it; the master, on the other hand, being answerable to the client for the money received by the clerk, there was no privity of contract between the present plaintiff and the defendant: Stevens v. Badcock, 3 Barn. & A., 354. So in the case of Sims et al. n. Brittain et al., 4 Id., 375. A., B.. and others, were part-owners of a ship in the service of the East India Company; B. was managing owner, and employed C. as his agent, and C. kept a separate account on his books with B. as such managing owner. In order to obtain payment of a sum of money from the East India Company on account of the ship, it was necessary that the receipt should be signed by one or more of the owners besides the managing owner; and upon a receipt being signed by B. and by another of the owners, C. received <£2,000 on account of the ship, and placed it to the credit of B. in his books as managing owner; the part-owners having brought money had and received to recover the balance of that account, held, that C. had received the money as the agent of B., and was accountable to him for it; and that there was no privity between the other part-owners and C., and consequently, that the action was not maintainable. To the same effect are the cases of Rogers v. Kelly, 2 Campb., 123, and Edden v. Read, 3 Id., 339, and Wedlake v.

-an °^igation and a promise to refund shall be P against the express mandate of the law? Such a p. 282presumption appears to us to be subversive of every rule *9^01 right. The more correct inference seems to be

But the objection to a recovery in this action may be farther extended, upon grounds which to the court appear to be^insuperable. We all know that this action for money had and received is founded upon what the law terms an implied promise to pay what in good conscience the defendant is bound to pay to the plaintiff. It being, in such case the duty of the defendant to pay, the law imputes to him a promise to pay. This promise is always charged in the e-olaration, and must be so charged in order to maintain the p. 283action. It was upon this principle that the action for money had and received was sustained in the case of JElUott v. Swart' wout. There money had been taken by the collector for duties which were not imposed. This money lawfully belonged to the plaintiff; it was the duty, therefore, of the collector to pay it back to him. The collector was not bound to pay it to the treasurer, for the law did not command this disposition of it. It did not belong to the United States, who had no right, therefore, to demand it of him, and could not have recovered it against him, in a suit, if he had paid it back to the true *owner. It being the duty of the collector to return L what he had unlawfully taken, the law implied on his part a promise to do so; and on this implied promise, arising or inferred from a duty imposed upon him, the action was maintained. The protest and notice were to him of no farther importance than to warn him to hold over, and to take away an excuse he might otherwise have had from payment to his principal. It was his duty, as the law then stood, not to pay over, but to pay back to the party from whom he had collected without legal authority, when warned that this party should look to him for reimbursement, and not to his principal. But the law never implies a promise to pay, unless duty creates the obligation to pay; and more especially it never implies a promise to do an act contrary to duty or contrary to law. Now, under the statute of 1839, if the collector receives money, though for duties not due, it is nevertheless made his duty to pay it into the Treasury, to be repaid there, if the party claiming is found to be entitled to it. And the question here is, will the law imply a promise from the collector to do that which is contrary to his official duty, contrary to the command of a positive statute ? If it will not, then the action of assumpsit for money had and received will not lie in this case.

Moreover, the law will never imply a promise where it would be unjust to the party to whom it would be imputed, ^°. equity so to imply it. Suppose the collector should not, as directed by law, pay the money into the TreasUU, the United States might undoubtedly maintain an action against him for money had and received to their use. Because 1 ^is d-uty to do so, the law would imply a promise to pay it. Can the law at the same time imply a promise to pay \ e ^w^ere or to another, and thus burden the collector with ■ e double obligation of paying to the government, and also 0 °^e claiming in adversary interest? If suits were institue against him by both parties, and were standing for trial at e same time, would both be entitled to a recovery, and Ou he law imply promises to both, promises to pay double p. 284the amount received ? We think not; and as the law in positive terms directs payment to .be made into the Treasury, there can be no judicial implication contrary to law, nor that the collector will pay to another what the law directs him to pay to the United States; and no judicial implication which would require him to be guilty of an act of official misconduct, or a breach of his duty to the public. If the law implies a promise to pay back to the party, then it must be the duty of the collector to do so as soon as it is demanded. If the money may be recovered of him by suit, then he would be justified in paying without suit, yet if he does so pay, he not only violates a duty imposed by law, but may be compelled to pay over again to the government, as for so much money had and received to its use. We think the law can never imply a promise which *2521 mus^ be unjusf and oppressive in its results to the party, -I or contrary to his duty as *a public officer; and there being no implied promise, therefore in this case the action for money had and received cannot be maintained. It is perfectly clear to the court that, under the act of 1839, the United States have, by express law, a right to demand the money from the collector, and to recover it in an action for money had and received, even if that officer had paid it over to the person from whom he had received it; and we say with confidence that in the multitude of cases that have been decided in relation to that action, there is not one in which it has been held that money could be recovered from a defendant when his voluntary payment of it would leave him still liable to an action for the same money by another.

We deem it unnecessary to examine farther the grounds stated in the second and third heads of inquiry, as forming the foundation of the action for money had and received; or to bring to a particular comparison with those grounds the law and the facts of this case, as presented upon the record. The illustrations given under the first head embrace all that is important under the remaining divisions, with respect to the nature of the demand and the position of the parties. Those illustrations establish, in the view of the court, that, so far is the defendant from being obliged, by the ties of natural equity and justice, to refund to the plaintiff the money received tor duties, that, on the contrary, under that notice of the law which all must be presumed to possess, the payment must be understood as having been made with knowledge of the parties that the right of retaining or of refunding the money did not exist in the defendant; that the money by law must pass trom him immediately upon its receipt; that payment to him was in legal effect payment into the Treasury; that notice to him p. 285was, under such circumstances, of no effect to bind him to refund; that as the collector, since the statute, had power neither to retain or refund, there could, as between him and the plaintiff, arise no privity nor implication, on which to found the promise raised by the law, only where an obligation to undertake or promise exists; and that, therefore, the action for money had and received could not, in this case, be maintained, but was barred by the act of Congress of 1839.

I regret exceedingly being compelled by a sense of duty to express openly my dissent from the opinion of the majority of the court in this case. On ordinary occasions my habit is to submit in silence to the judgment of the court where I happen to entertain an opinion different from that of my brethren. But the present case involves, in my judgment, doctrines and consequences which, with the utmost deference and respect tor those who think otherwise, I cannot but deem most deeply affecting the rights of all our citizens, and calculated to supersede the great guards of those rights intended to be secured by the Constitution through the instrumentality of the *judicial power, state or national. The question, L stripped of all formalities, is neither more nor less than this: Whether Congress have a right to take from the citizens all right of action in any court to recover back money claimed illegally, and extorted by compulsion, by its officers under color of law, but without any legal authority, and thus to deny them all remedy for an admitted wrong, and to clothe the Secretary of the Treasury with the sole and exclusive authority to withhold or restore that money according to his own notions of justice or right? If Congress may do so in the present case, in the exercise of its power to levy and collect taxes and duties, and thus take away from all courts, state and national, all right to interpret the laws for levying and collecting taxes and duties, and to confide such interpretation to one of its own executive functionaries, whose judgment is to be at once summary and final, then I must say, that it seems o me to be not what I had hitherto supposed it to be: a government where, the three great departments, legislative, execuive, and judicial, had independent duties to perform each in 1 J5 °wn sphere; but the judicial power, designed by the Cons i ution to be the final and appellate jurisdiction to interpret our aws, is superseded in its most vital and important func-10n?’ know of no power, indeed, of which a free people oug to be more jealous, than of that of levying taxes and 11 íes; and yet if it is to rest with a mere executive p. 286functionary of the government absolutely and finally to decide what taxes and duties are leviable under a particular act, without any power of appeal to any judicial tribunal, it seems to me that we have no security whatsoever for the rights of the citizens. And if Congress possess a constitutional authority to vest such summary and final power of interpretation in an executive functionary, I know no other subject within the reach of legislation which may not be exclusively confided in the same way to an executive functionary; nay, to the executive himself. Can it be true that the American people ever contemplated such a state of things as justifiable or practicable under our Constitution ? I cannot bring my mind to believe it; and, therefore, I repeat it, with the most sincere respect for my brethren, who entertain a different opinion, I deny the constitutional authority of Congress to delegate such functions to any executive officer, or to take away all right of action for an admitted wrong and illegal exercise of power in the levy of money from the injured citizens. I am further of opinion, as I shall endeavor presently to show, that Congress never had contemplated passing any such act, and that the act of the 3d of March, 183’9, ch. 82, § 2, neither requires nor in my humble judgment justifies such an interpretation.

What is the real question presented, upon the division of opinion in the Circuit Court, for the consideration of this court ? It is not whether an action to recover back the money illegally claimed and paid to the collector for duties, in order to obtain possession of the *goods by the owner under a protest they were not legally due, would lie in the Circuit Court, for no such question arises on the record, and it is incontrovertible and uncontroverted, that if any such action would lie, it would lie in the national courts as well as in the state courts. It is not whether Congress may limit, restrain, modify, or even take away the right to sue in the national courts, in cases like the present, or, indeed, in any other class of cases not constitutionally provided for, but it is simply whether the act of Congress of the 3d of March, 183, ch. 82, § 2, is a bar to such an action in any court, state or national. If it is a good bar in one court, it is good in all courts under the provisions of that act. If Congress ave a right to sav, and have said, under the provisions o± that act, that no officers of the customs shall be liable to any action or money extorted by him under color of his office Wltho authority and against law, then these provisions are equal y applicable to all courts, and furnish the rule of decision for a. And Congress have an equal right to apply a like provi all other acts of all other officers done under color of office, p. 287and the trial by jury may, in suits at common law, be completely taken away in all such cases, and the right of final decision be exclusively vested in the executive, or in any other public functionary, at the pleasure of Congress.

*8 unnecessary to cite them, since the very point a an action for money had and received lies against a co ec or of the customs to recover back money demanded y and paid to him, colore officii, upon goods imported, for les not legally due thereon, has been, upon the most emn deliberation, held by this court in the cases of Elliott v. Swartwout, 10 Pet., 137, and Bend v. Hoyt, 13 Id., 263, 267. n 18 an en^lre mistake of the true meaning of the rule of that is sometimes suggested in argument, founded a° 10n assumpsit for money had and received is deffinda^^011 ^J^ptary, express, or implied promise, of the ’ or that it requires privity between the parties ex p. 288contractu to support it. The rule of the common law has a much broader and deeper foundation. Wherever the law pronounces that a party is under a legal liability or duty to pay over money belonging to another, which he has no lawful right to exact or retain from him, there it forces the promise upon him in invitum to pay over the money to the party entitled to it. It is a result of the potency of the law, and is in no shape dependent upon the will or consent or voluntary promise of the wrongful possessor. The promise is only the form in which the law announces its own judgment upon the matter of right and duty and remedy; and under such circumstances any argument founded upon the form of the action, that it must arise under or in virtue of some contract, is disregarded, upon the maxim qui hoeret in litera, hoeret in cortice. Hence, it is a doctrine of the common law, (as far as my researches extend,) absolutely universal, that if a man, by fraud, or wrong, or illegality, obtains, or exacts, or retains money justly belonging to another, with notice that the latter contests the right of the former to receive, or exact, or retain it, an action for money had and received lies to recover it back; and it is no answer for the wrongdoer to say that he has paid it over to his superior; for although as between the wrongdoer and his superior, the maxim may well apply, respondeat superior, yet the injured party is not bound to seek redress in that direction; and a fortiori, &c., he is not so bound, where, as in the case of the government, the superior is not suable. That would be a mere mockery of justice. And this is the very doctrine affirmed in its full extent by this court in the cases of Elliott v. Swartwout, 10 Pet., 137, and Bend v. Hoyt, 13 Id., 263, 267.

¿obj *0ongress have taken away the direct remedy, the circuitous remedy must be equally barred. But in point of fact no other judicial remedy does exist or can be applied. If the collector is not responsible to pay back the money, nobody is. The government itself is not suable at all; and certainly there is no pretence to say that the Secretary of the Treasury is suable therefor. Where then is the remedy which is supposed to exist? It is an appeal to the Secretary of p. 289the Treasury for a return of the money, if in his opinion it ought to be returned, and not otherwise. No court, no jury, nay, not even the ordinary rules of evidence, are to pass between that officer and the injured claimant, to try his rights or to secure him adequate redress. Assuming that the Secretary of the Treasury will always be disposed to do what he deems to be right in the exercise of his discretion, and that he possesses all the qualifications requisite to perform this duty, among the other complicated duties of his office—a presumption which I am in no manner disposed to question—still it removes not a single objection. It is, after all, a substitution of executive authority and discretion for judicial remedies. Nor should it be disguised, that upon so complicated a subject as the nature and character of articles made subject to duties, grave controversies must always exist (as they have always hitherto existed) as to the category within which particular fabrics and articles are to be classed. The line of discrimination between fabrics and articles approaching near to each other in quality, or component materials, or commercial denominations, is often very nice and difficult, and sometimes exceedingly obscure. It is the very case, therefore, which is fit for judicial inquiry and decision, and falls within the reach of that branch of the judicial power given by the Constitution, where it is declared “ that the judicial power shall extend to all cases in law and equity arising under this Constitution, the laws of the United States, and treaties, &c.” If then the judicial power is to extend to all cases arising under the laws of the United States, upon what ground are we to say that cases of this sort, which are eminently “ cases arising under the laws,” and of a judicial nature, are to be excluded from judicial cognisance, and lodged with an executive functionary ?

Besides, we all know that, in all revenue cases, it is the constant, practice of the Secretary of the Treasury to give written instructions to the various collectors of the customs as to what duties are to be collected under particular revenue laws, and what, in his judgment, is the proper interpretation of those laws. I will venture to assert that, in nineteen cases out of twenty of doubtful interpretation of any such laws, the collector never acts without the express instructions of the ecretary of the Treasury. So that in most, if not in all cases w eie a controversy arises, the Secretary of the Treasury has a leady pronounced his own judgment. Of what use then, Practically speaking, is the appeal to him, since he has already given his decision ? Further, it is well known, and the una s of this court as well as those of the other p. 290courts of the United States establish in the fullest manner, that the interpretations so given by the Secretary of the Treasury have, in many instances, differed widely from those of the courts. The Constitution looks to the courts as the final interpreters of the laws. Yet the opinion maintained by my brethren does, in effect, vest such interpretation exclusively in that officer.

*With this exposition in our view, let us examine the language of the section. It is as follows: “ That from L and after the passage of this act, all money paid to any collector of the customs or to any person acting as such, for unascertained duties or for duties paid under protest against the rate or amount of duties charged, shall be placed to the credit of the treasurer of the United States, kept and disposed of as all other money paid for duties is required by law or by regulation of the Treasury Department to be placed to the credit of said treasurer, kept and disposed of; and shall not be held by the said collector or person acting as such to await any ascertainment of duty, or the result of any litigation in relation to the rate or amount of duty legally chargeable and collectible in any case where money is so paid.” Now, pausing here, it seems to me that the clause is plainly and merely directory to the collector or person acting as such, pointing out his duty and requiring him to pass the money so paid to the credit of the government as soon as it is received. Nothing is here said as to the rights of third persons, who pay the money for duties; no declaration is made that the collector shall not be liable to any action for such duties, if not legally demandable or payable, or that the collector or such other person shall not be liable to refund the same. And yet, if such had been the intention of Congress, it seems to me incredible that a provision to this effect should not have been found in the act. But further; not only is there a total absence of any such provision, but there is positive evidence that Congress contemplated that there would be suits brought against the collectors and other persons for the repayment of such duties, and, accordingly, as we see, the money is not to be retained by them “ to await any ascertainment of duties or the result of any litigation.” The language is not limited to the result of past or pending litigation, but it equally applies to future litigation; in short, any litigation, without any limitation as to time, and indeed to be co-extensive with the permanent prospective operation of the act. If then, there is in his clause no positive or implied bar to any action provided or, and if the clause is perfectly satisfied by deeming it to be what it professes on its face to be, a regulation addressed to e collectors and other persons collecting duties, and direcoiy to them, let us see if the subsequent clause, which conams the residue of the section, either enlarges, or qualifies, or p. 292repels the inferences drawn from the preceding clause. TRis clause is, “ But whenever it shall be shown to the satisfaction of the Secretary of the Treasury, that, in any case of unascertained duty or duties paid under protest, more money has been paid to the collector or other person acting as such, than the law requires should have been paid, it shall be his duty to draw his warrant upon the treasurer in favor of the person or persons entitled to the over-payment, directing the said treasurer to refund the same out of any money in the Treasury *9^01 n°t otherwise appropriated.”

J *This is the whole of the clause, and, unless I am greatly deceived in its purport and effect, not one word is to be found therein which bars the party who has paid the money from his right of action against the collector or other persons acting as such to recover back the money illegally claimed, or which compels such party to make his application or appeal solely to the Secretary of the Treasury for redress, or gives to the latter exclusive power, jurisdiction, and final arbitrament in the premises. The true object of this clause seems to be precisely what its language imports, to give the Secretary of the Treasury a power which he did not previously possess, to draw from the Treasury money which had been overpaid for duties when he was satisfied of such over-payment, upon the application of the party interested. It was not to be compulsive on the party, that he should so apply, but he had an option to apply to the Secretary, to save the delay and expense of a protracted litigation, if the Secretary should grant him the desired relief. It would also diminish the necessity of applications to Congress for the repayment of money which had been illegally paid for duties, by enabling the Secretary to draw his warrant upon the Treasury for the amount; which relief, when the money had been paid into the Treasury, could not before be obtained except by means of an act of Congress. It was, therefore, an auxiliary provision to the general rights of action secured to the party by the common law, and not in extinguishment or suspension of it. Whether the clause clothed the Secretary also with authority to draw a warrant in favor of the party, if he recovered back the money in a suit at law against the collector, is a matter which might, upon the strict words of the clause, admit of some doubt, since the case provided for is only where the over-payment shall be shown to the satisfaction of the secretary, and not where it is a result of a judgment at law. But a liberal construction might embrace such a case also, as within the intent, if not strictly within the words. But be this as it may, it is manifest to my mind, with all deference to the judgment o p. 293others, that the affirmative power thus given by this clause to the Secretary, cannot be construed to exclude the right of the party to his remedy at the common law without a violation of the known rules of interpretation, by adding important and material language which the legislature has not used, and incorporating provisions which neither the words nor the professes objects of the section require.

This suit was brought to recover from the defendant, p. 294collector of the customs, an excess of duties exacted by him of the plaintiffs against law. And on the trial in the Circuit Court the judges were divided on the question, “ whether the act of the 3d of March, 1839, was a bar to the action.” This point has been certified to this court.

The above section, in my judgment, so far from taking away the legal remedy, expressly recognises it. The, collector is required, “from and after the passage of the act, to pay over to the treasurer the moneys in his hands, and not “to.await any ascertainment of duties, or the result of any litigation in relation to the rate or amount of duty legally chargeable, &c. Now, if Congress intended by this section to withdraw this subject from the courts, and vest the exclusive right to decide the matter in the Secretary of the Treasury, could they have used this language? The law was not to operate upon the p. 295past, but upon the future acts of the collector. And I ask in sober earnestness, whether the collector could be required to pay over money, “and not await the result of a litigation,” as “ to the amount of duties legally chargeable,” if the intention was to prohibit such litigation. I use the words of the section ; and the words of the section alone, as I think, are conclusive as to the intention of Congress. The collector must pay over the money, and not retain it until the termination of a suit. Does this take away the right to bring a suit? Such an inference, it seems to me, would be as exceptionable in logic as in law.

It is said that the law cannot raise a promise to pay by an officer, where it requires him to pay the same money into the J leasury. The action is founded on the illegality of the ransaction. None other than legal duties are payable to the government; and where an officer by his own volition, or acting under the instructions of his superior, demands a higher ii J han the law authorizes, he is guilty of a wrong which is instructions cannot justify. And having done this, can it e con ended, that by paying over moneys so obtained he can p. 296escape the legal consequence of his unlawful act ? Where one person obtains money illegally from another, is he not bound in conscience to return it? And may not an action of assumpsit be sustained for the recovery of the money? In such an action the question is, whether the defendant has received money which he is bound in good conscience to pay to the plaintiff. Now, if the defendant, as collector, exacted a higher duty of the plaintiffs than the law authorized, is he not bound in conscience to return the excess? But it is said that he has paid it over to the Treasury of the United States, in pursuance of the act of 1839, and that this is a bar to the action. Why has not this bar been set up under the act of 1799? By that act the collector, when ordered by the Secretary of the Treasury, was as much bound to pay over the money in his hands into the Treasury as under the act of 1839. And yet for forty-four years such a defence has not been thought of. It has never been supposed that the payment of the money into the Treasury exonerated the collector. He has violated the law, and he is answerable for that violation. . This must be the case, unless, in the language of this court in the case of Elliott v. Swartwout above cited, “ the broad proposition can be maintained, that no action will lie against a collector to recover back an excess of duties paid him, but that recourse must be had to the government for redress. Such a principle,” the court say, “ would be carrying an exemption to a public officer beyond any protection sanctioned by any principles of law or sound public policy.”

The question arises on the facts stated. Illegal duties were demanded by the collector and paid to him by the.plaintiffs, before they could obtain their goods; and the question is, has their remedy at law been cut off by the statute of 1839 ? Ibis is a taxing power; the most delicate power that is. exercised by the government. It reaches the concerns of the citizen, and takes from him a part of his property for purposes of revenue. The tax should be judicious, and the mode of collecting it should be specially guarded. Care *should be. taken not to infringe private right in making this public exaction. But, especially, where, in this respect, a wrong has been done to the citizen, the courts should be open to him. His remedy should be without obstruction. But my brethren say that the act of 1839 takes away from t) e plaintiff all p. 299remedy except an appeal to the Secretary. The state courts as well as the federal are closed against the injured party.

, e consequences lie within the exercise of the principle ? th d°’ m consecluences must follow a general exercise of thh^0^!' T danger is in sanctioning the principle. At v P01r< 1 meet the principle and combat it. I object to it because it is dangerous and may be ruinous. It takes from CnnSJT hls rights—rights secured to him by the r#«™ nstitution; the trial by jury, in a court of *law. 266 p. 300This is done by the act of 1839, if it be what it is now construed to be. In this aspect, then, I say, the act is unconstitutional and void. It not only strikes down the rights of the citizen, but it inflicts a blow on the judicial power of the country. It unites, in the same department, the executive and judicial power. And on a subject the most delicate and interesting; and one which, of all others, may most easily be converted into an engine of oppression.