Plummer v. Jarvis ( 1843 )

The opinion of the fiourt was by

Whitman C. J.

The case made out by the evidence, on the one side and on the other, does not exhibit the plaintiff as having sustained any injury, which could well excite the sympathy of honest men in his favor. He appears to have been a citizen of the United States; but, at the time of the injury complained of, had, for eleven years, been domiciled in the province of New Brunswick ; and at the time of the alleged trespass, was committing depredations upon lands with-this Slate, to which he had no pretence of title. It was in the wjnter of 1839 ; at a time when the British, having asserted, what can scarcely be denominated otherwise than an impudent claim to a large extent of the territory of this State, and when all but actual war existed between the British authorities in New Brunswick and us, in which we were endeavoring to defend our just rights, that the plaintiff, who had expatriated himself, was seizing upon the occasion, while the confusion upon our Eastern Boundary was at its greatest height to commit depredations upon our territory; and his complaint is, that he was interrupted, and his nefarious project broken up by the defendants, acting under the authority of our government.

It would seem, now, that he places reliance upon the fact, that the place, which he pitched upon for the scene of his lawless operations, was not then owned by the State but by individual citizens of this or some other of the United States.

But there was very little chance, under this subterfuge for him to shelter himself from responsibility ; for surely the government of this State is as much bound to protect the territorial right of individuals within its bounds as it is to protect its own. Indeed it is one of the primary objects in all governments to protect and insure to all their individuals the uninterrupted enjoyment of property. No government could shrink from the performance of such a duty without abandoning the object of its formation. Again, the plaintiff questions the authority of the defendants, as officers of the State, to interfere and break up his operations. It would seem that he thinks the resolve of Jam 24. 1Q39, under which they acted, did not reach the case, and authorize them to disturb trespassers ; unless they were actually committing strip and waste upon lands belonging to the State. The language of the resolve is, i: that the Land Agent be and is hereby authorized and required to employ forthwith, sufficient force to arrest, detain and imprison all persons found trespassing on the territory of this State, as hounded and established by the treaty of 1783. And that the Land Agent be and is hereby empowered to dispose of all the teams, ¡umber and other materials in the hands and possession of such trespassers.”

It was before a part of the general duty of the Land Agent to prosecute trespassers on the public lands. This resolve was passed to extend his powers for the purpose of meeting the emergency, and to render theni more efficacious, it had become as indispensable, that mcasuics should be taken to protect the property of individuals from depredation, as that of the public. Language in this resolve is used, which dearly shows, that the Legislature had in view not merely the public lands, but the territory of the State. Now what is the territory of a State ? Clearly that which is comprised within the limits of the State. The word territory is used as synonymous with country and dominion, and lexicographers so define it; and in the resolve in this instance it is clearly so used. All our legislation will show that when the public lands only are intended, a different language is used, clearly indicating a distinction, constantly in view, between the territory of the State, and the interest of the public in portions of its soil ; the appropriate phraseology to describe which is the public lands. That the word territory was used in the resolve as synonymous with dominion, if any thing further be necessary to show the intent of the Legislature, is rendered certain by the words, “ as bounded and established by the treaty of 1783,” added next after the word “ territory.” The use of such language, and the absence of any language tending to show that a view was had only to the public lands, seems incontrovertably to show that the resolve was designed to meet in a national point of view, the crisis in the difficulties in which the State was then involved. No other mode was left to ward off the dangers, which then threatened in a great measure to destroy not only the prosperity of the State, but also that of individuals which the State was equally bound to secure from lawless outrage and depredation.

Judgment on the verdict.