That these cases are of divided jurisdiction: Manufactures made and consumed within a State being subject to State legislation, while those which are exported to foreign nations, or to another State, or into the Indian Territory, are alone within the legislation of the General Government.
That it will, therefore, be reasonable for the General Government to provide in this behalf by law for those cases of manufacture generally, and those only which relate to commerce with foreign nations, and among the several States, and with the Indian Tribes.
And that this may be done by permitting the owner of every manufactory, to enter in the records of the court of the district wherein his manufactory is, the name with which he chooses to mark or designate his wares, and rendering it penal in others to put the same mark to any other wares.
XXIV.—Opinion relative to the demolition of Mr. Carroll's house by Major L'Enfant, in laying out the Federal City.
December 11, 1791.
Observations on Major L'Enfant's letter of December 7th, 1791, to the President, justifying his demolition of the house of Mr. Carroll, of Duddington.
He says that "Mr. Carroll erected his house partly on a main street, and altogether on ground to which the public had a more immediate title than himself could claim." When blaming Mr. Carroll, then, he considers this as a street; but when justifying himself, he considers it not yet as a street, for to account for his not having pointed out to Carroll a situation where he might build, he says, "The President had not yet sanctioned the plan for the distribution of the city, nor determined if he would approve the situation of the several areas proposed to him in that plan for public use, and that I would have been highly to be blamed to have anticipated his opinion thereon." This latter exculpation is solid; the first is without foundation. The plan of the city has not yet been definitely determined by the President. Sale to individuals, or partition decide the plan as far as these sales or partitions go. A deed with the whole plan annexed, executed by the President, and recorded, will ultimately fix it. But till a sale, or partition, or deed, it is open to alteration. Consequently, there is as yet no such thing as a street, except adjacent to the lots actually sold or divided; the erection of a house in any part of the ground cannot as yet be a nuisance in law. Mr. Carroll is tenant in common of the soil with the public, and the erection of a house by a tenant in common on the common property, is no nuisance. Mr. Carroll has acted imprudently, intemperately, foolishly; but he has not acted illegally. There must be an establishment of the streets, before his house can become a nuisance in the eye of the law. Therefore, till that establishment, neither Major L'Enfant, nor the commissioners, would have had a right to demolish his house, without his consent.
The Major says he had as much right to pull down a house, as to cut down a tree.
This is true, if he has received no authority to do either, but still there will be this difference: To cut down a tree or to demolish a house in the soil of another, is a trespass; but the cutting a tree, in this country, is so slight a trespass, that a man would be thought litigious who should prosecute it; if he prosecuted civilly, a jury would give small damages; if criminally, the judge would not inflict imprisonment, nor impose but a small fine. But the demolition of a house is so gross a trespass, that any man would prosecute it; if civilly, a jury would give great damages; if criminally, the judge would punish heavily by fine and imprisonment. In the present case, if Carroll was to bring a civil action, the jury would probably punish his folly by small damages; but if he were to prosecute criminally, the judge would as probably vindicate the insult on the laws, and the breach of the peace, by heavy fines and imprisonment. So that if Major L'Enfant is right in saying he had as much authority to pull down a house as to cut down a tree, still he would feel a difference in the punishment of the law.
But is he right in saying he had as much authority to pull down a house as to cut down a tree? I do not know what have been the authorities given him expressly or by implication, but I can very readily conceive that the authorities which he has received, whether from the President or from the commissioners, whether verbal or written, may have gone to the demolition of trees, and not houses. I am sure he has received no authority, either from the President or commissioners, either expressly or by implication, to pull down houses. An order to him to mark on the ground the lines of the streets and lots, might imply an order to remove trees or small obstructions, where they insuperably prevented his operations; but a person must know little of geometry who could not, in an open field, designate streets and lots, even where a line passed through a house, without pulling the house down.