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DIG E S T
PUBLISHED OPINIONS
ATTORNEYS-GENERAL,
LEADING DECISIONS OF THE FEDERAL COURTS,
WITH REFERENCE TO
INTERNATIONAL LAW, TREATES, AND KINDEED SUBJECTS
REVISED EDITION.
WASHINGTON:
G.O.W.E.R.N MEN'T PRINTING OFFICE.
1877.
P R E FA C E.
In considering questions relating to international law, or arising un-
der treaty provisions, the want of Some ready means of reference to the
conclusions which have formerly been reached on the same or kindred
Questions has constantly been experienced. -
Without an exhaustive examination, it has been found impossible to
ascertain whether, or in what manner, different Attorneys-General have
considered similar questions and a ready means of reference to the
decisions of the courts on like subjects is not always at hand.
An effort has here been made to give a reference to all of the published
Opinions of the Attorneys-General upon international law, public treat-
ies, or upon such questions as from time to time come before the
Department of State, and also to the leading decisions of the Federal
courts on the same subjects. - -
Under certain titles, such as “Treaties,” “Extradition,” an effort has
been made to refer to all decisions bearing on the subject.
It is not intended in any case to state what the law is, or to assume
to give the effect of any opinion or decision upon any Department of
the Government, but simply to refer to what has from time to time
been held to be the law by recognized legal authority.
In some instances, different opinions, if not different decisions, herein
cited, will be found to be in direct opposition. In some cases this
arises from a change in public law and a consequent change of opinion ;
in others, from positive differences of opinion on delicate questions. For
this reason, both opinions and decisions are cited in the order of their
date; and from the comparatively small number of citations under any
particular title, it is believed this will cause no embarrassment.
The Revised Statutes published in 1875 under the authority of Con-
gress are cited as R. S., § —, and the volume of the Treaties to which
reference is made is that published at the same time, known as the
“Revised Statutes relating to the District of Columbia and Post-Roads
—Public Treaties.” -
The obligations of the undersigned are due to Mr. Charles P. James
for valuable assistance; to Mr. John H. Haswell and Mr. Almont Barnes,
of the Department of State; and to Mr. Clapp, the Government Printer;
and Mr. Brian, the foreman of the Government Printing-Office.
- JOHN L, CADWALADER.
DEPARTMENT OF STATE, -
- - December, 1876.
LIST OF TITLES
Absence
Advances
Advertisements ------------------
Agents
Age of Majority
Alaska
Alien Enemy
Aliens.----- tº gº tº º ºs º is m º ºs º ºs º ºs º ºs º º --É -
Allegiance----------------------- -
Ambassadors
American and Spanish Claims Com-
mission ---------- gº sº is tº se is s as a as as e = *
American Merchants
American Wessels
Amistad Case.--------------------
Anchorage Dues
Appointments
Appropriations
Arrests
tº as m º ºs º is ºn sº º ºs ºº & ºm sº tº º ºs ºs º nº sº tº es sº sº *
* * * * * * * * * * * * * * * * * *
º gº º sº as º ºs as tº ºs e º ºn tº sº ºne º & gº tº tº tº gº tº dº sº º
tº sº º ſº gº sº e º ºs º º sº º ºs º gº tº º º sº *
º º ºs º is tº me tº gº tº nº gº tº sº ºn me se sº *
tº º sº º º ſº tº sº * * * * * * * * * * * se
& sº tº gº tº gº º- º tº gº gº tº ºs e ºs º sº sº tº
* * * * * * * * * * * * * * * * * * * * * * * as sº me
Asylum
Attachés -------------------------
Attachments ---------------------
Awards
& º ſº tº sº tº sº º ºs e º ºs º º ºs º ºs º ºs º ºs º ºs ºs = s.
* * * * * * * * * * * * * * * * ºr e º sº e º m, sº me ºr
Balances -------------------------
Barratry ------------------------.
Bays -----------------------------
Belligerents ----------------.-----
Bills of Exchange ----------------
Blockade ------------------------
Bonds -------------------------- tº-
Boundaries -----------------------
P
3.
g
€
1.e
11
11
11
* * * * * * * * * * * * * * * * * * * * = as as as
* * * * * * * * * * * * * * * *
Certifying Invoices.----------...-
Certifying Officers.---- tº º ºs on in sº m sº sº º sº
Chargé d'Affaires
13
17
22
22
23
24
33
33
33
33
33
Citizens ------------------- -------
Citizenship ------...-- - - - - - - - - - - - - -
Civil War
we us ºr as - as s = ºn tº as is us in sº sº ºn e º ºs º is sº e
Colonies
Commanding General
Commissioners--------------------
Compensation
Congress -------------------------
Conquest-------------------------
Constitutional Law.--------------
Consular Courts ------------------
Consular Officers.------------------
Contingent Expenses
Contingent Expenses of Foreign In-
tercourse
Contraband
Contracts
Coolie Trade --------------------.
Court of Claims ------------------
* * * * * * * * * * * * * * * * * * * * e º as ſº e =
*
sº e º gº º º tº gº sº tº dº sº wº
ſº tº me as sº tº gº º tº sº e º º is º is ºs º ºs ºs º ºs
gº sº tº º ºs º ºs s tº tº º sº tº tº e º ºs º ſº tº º &
tº º sº ºn tº te º is me tº it was sº me tº sº ºn was º gº ºs tº º ºs
Debts by and to United States.---
Deceased Foreigners --------------
Decedents' Estates----------------
Declaration of War ---------------
De Facto Government.---...----. - - -
Defense of Suits------------------
De Jure Government.-------------
Departments of Government.-----
Depositions----------- * * * * * * * * * * * *
Deserting Seamen
Destitute Seamen-----------------
Diplomatic Interference -----------
Diplomatic Officers.---------------
Diplomatic Power-----------------
Diplomatic Privilege--------------
Discovery
Domicile
Domestics
Drafts.-------------------- tº ºn sº es e º 'º
s is ºr sº as ºs e º ºs e º s , s sº me tº tº gº º º sº º º
75
77
77
78
78
78
81
81
81
82
82
82
82
83
85
85
86
86
S9
89
VI
LIST OF TITLEs.
E.
Eight-hour LaW-------------------
Enemy ----- gº tº m a. º. ºº e º 'º a sm as ºn as tº e s - we an as s
Enemy Property ------------------
Enemy's License------------------
Enlistments ----------------------
Jºstates--------------------------- 4.
Exchange ----- tº e º sº º tº gº ºn as as we ºn tº gº ºn tº em se us
Executive Authority--------------
Executive Departments.-----------
JExecutive Interference- - - - - - - - - - - -
Expatriation
Exterritoriality-------------------
Extra Compensation --------------
Extradition ------------ * * * * * * * * * *
• * * * * * * * * * * * * * * • * * * * *
Foreign Consuls ------------------
foreign Decedents--------- * * * * * * * *
Foreign Domicile -----------------
Foreign Enlistments --------------
Foreign Ministers.----------------
Foreign Officers-------------------
Foreign Ships of War. -- - - - - - - - - - -
Foreign States--------------------
Foreign Territory.--. -------------
. Foreign Tribunals
France
Free Goods
Fugitives-------------------------
Page.
89.
90
90
92
92
92
92
93
93
128
* * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * * * *
* = * * * * * * * * * * * * * * * * * * * * *
Guano Islands -------------- - - - - - -
IHabeas Corpus------------- *** * * * * * *
High Seas ------------------------
Hostility -------------------------
Illicit Intercourse.----------------
Indefinite Appropriations----------
Indemnification.-------------------
Injuries --------------------------
Insurrection ----------------------
Interest --------------------- -----
International Comity--------------
International Commissioners.----.
International Law ----------------
Isthmus of Panama ------------. -- ~~
128 .
129
129
129
130
133
133
133
133
137
137
137 ||
137
138
138
138
139
152
Page.
J.
Jewels of the Princess of Orange... 152
Joint Resolutions ----------------- 153
Judgments ----------------------- 153
Judicial Expenses----------------. 154
Jurisdiction ----------------------- 154
Jury de Medietate ------...--------- 154
H.
Laws------- * - * * * * * * * * - - - e s tº - - tº gº º - 155
Laws of War --------------------- 155
Leave of Absence ---------- - - - - - - - 155
Legal Tender--------------------- 155
Legislative Construction ---------- 155
Letters Rogatory ----------------- 155
Libel----------------------------- 156
Light-house Dues.---------------. 156
Limited Intercourse.-------------- 156
MH,
Majority ...----. . - - - - - - - - - - - - - ----- 156
Malicious Publications -----...----. 156
Mandatory Statutes.-------------- 156
Mariners ------------------------- 156
Maritime War.-------------------- 157
Marshals of Consular Courts.----. - 157
Marriages ------------------------ 157
Married Women ------------------ 157
Martial Law.---------------------- 157
Masters of Wessels----------------- 157
Mesilla Treaty-------------------- 158
Military Courts------------- - - - - - - 158
Ministers Plenipotentiary. - - - - - - - - - 153
Morocco ------------------------- 158
Municipal Laws ------------...----- 158
Munitions of War.---------------- 158
Muscat --------------------------- 159
Mutiny--------------------------- 159
- * . N.
National Character ----...----...----- 159
Naturalization-------------------- 159
Naturalized Citizens -------------- 160
Negotiable Paper.-- - - - - - - ** * * * * * * * 161
Neutral Goods ------------------- 161
Neutrality------------------------ 162
Neutrals-------------------------- 173
Neutral Territory.---------------- 178
- ©e
Oaths -------------- -------------- 178
Office ----------- * * * * * * * * * * * * * * * * * 178
Official Acts ---------------------- 183
Officers of Government.----...----- 183
P.
Panama Passenger Tax-...-- ------- 183
Pardons-------------- '• * * * * * * * * * * * 183
Paris Exposition.---------. Tº me - sº ºn sº tº * * 189
IIST OF
TITLES, VII
Page.
Passports------------------------- 189
Payment in Coin ------------------ 190
Penalties and Forfeitures---------. 190
Permanent Appropriations-------- - 190
Piracy --------------------------- 190
Powers of Attorney--------------- 191
Presents.------------------------- 191
Princess of Orange.--------------- 191
Prisoners ------------------------ 191
Privilege from Arrest - - - - - - - - - - - - - - 191
Prize ----- tº sº as as me an ºs e ºs º ºs e º sº sº * * * * * * * * 191
Privateers. ---------------------- 192
Proclamation---------------------- 192
Property of the United States.----- 192
Prosecutions.--------------------- 193
Public Armed Wessels----...----- . 193
Public Contracts------------------ 193
Public Enemy -------------------- 193
Public Minister------. ------------ 193
Public Property -----------. ------ 199
-- R.
Rebellion ------------------------ 199
Recaptured Property - - - - - - ------ - 199
Reciprocity----------------------- 199
Reclamation---------------------- 199
Register.------------------------- 200
Removal from Office --------------- 200
Repeals -------------------------- 200
Reprisals.------------------------ 200
Resignation of Office.------------- 200
Resolutions of Congress.---------- 200
Revolution ----------------------- 200
Robbery-------------------------- 200
- - S.
Safe-Conduct --------------------- 201
Salaries -------------------------- 201
Salvage -------------------------- 201
Scheldt Dues-------------------- 202
Sea-Letters ---------------------- 202
Seamen -------------------------- 202
Search, Right of------------------ 210
Secretaries of Legation ----------- 211
Secretary of State ---------------- 211
Seizure.-------------------------- 211.
Servants ----------------------- 212
Ship-Masters --------------------- 212
Ships ---------------------------- 212
Ship's Papers--------------------- 213
Sick Seamen --------------------- 214
Slaves---------------------------- 214
Slave-Trade ---------------------- 216
Sovereignty ---------------------- 217
Spanish Claims------------------- 219
, Spanish Viceroys ----------------- 220
Page.
State----------------------------- 220
State Authority------------------- 221
State Department--------...-------. 221
State, War, and Navy Building. --- 222
Statutes-------------------------- 222
Steamer Virginius ---------------, 223
Suits----------------------------- 223
Sufeties -------------------------- 224
Tenure of Office ------------------ 225
Territorial Rights ----------------- 226
Territorial Sovereignty. ----------- 226
Tonnage-Dues -------------------- 226
Tonnage-Tax.----- ------ -------- 226
Trading With Enemy-------------- 227
Transportation ------------------- 227
Traveling Expenses--------------- 227
Treason -------------------------- 227
Treaties ------------------------- 227
Austria-Hungary ------------- 235
Bavaria ---------------------- 235
China ----------- tº º me tº ºn tº tº e. m. sº e º ºs 235
Colombia--------------------- 236
Costa Rica ------------------- 236
Denmark.------------------- - 236
France ----------------------- 236
Great Britain ----------------- 241
Hanseatic Republics---------- 247
Italy ------------------------- 247
Japan ------------------------ 247
Mexico.----------------------- 247
Netherlands ------------------ 248
New Granada.-------------- - - 249
North-German Confederation... 250
Ottoman Empire.-------------- 251
Peru ------------------------. 252
Portugal --------------------- 252
JPrussia----------------------- 252
Russia ----------------------- 254
Spain ------------------------ 254
Sweden and Norway.------- ... 263
Switzerland ------------------ 263
Würtemberg ----------------- 264
Tripoli------------------- - - - - - - - - 264
Tunis ---------- ------------------ 264
We
Vessels -------------------------. - 264
Vessels of the United States. ----. - 264
Vice-Consuls -------------------- - 264
Virginius, (Steamer)-------------- 264
Visitation and Search------...----- 265
W.
War ----------------------------- 267
Warrants ------------------------ 268
DIG E S T
OF THE
OPINIONS OF THE ATTORNEYS-GENERAL AND OF THE FEDERAL COURTS UPON
INTERNATIONAL LAW AND KINDRED SUBJECTS,
AFBSEEN DEE,
See Compensation.
AEDVANCES.
See Diplomatic Officers.
AHPVI ERTHSEIWHTENTS.
1. Semble, if the provisions of law which require certain contracts to be
advertised are disregarded, the contracts, while they remain
executory, and without commencement of performance, are sub-
ject to be rescinded.
Charles Knap's case, 6 Op., 406, Cushing, (1854.)
2. It is a sufficient objection to an unexecuted contract made by an offi-
cer of the Government that he has neglected to comply with an
act of Congress requiring that proposals shall precede the letting
of the contract. -
Case of James and others, 10 Op., 416, Bates, (1862.)
3. But after a party has entered into a contract with the Government
in good faith, and has so far performed his part of the same that
to rescind it or declare it illegal, and so incapable of execution,
would subject him to loss and injury, while the Government would
yet enjoy the benefits of his labor or expenditure, the contract
cannot be avoided or changed, to the injury of the other party,
by the Government, on the ground that it was made without
advertising for proposals. t
Ib.
1.
2 AGENTS-ALIEN ENEMY.
4. The proviso in the act of 3d March, 1875, c. 128, (18 Stat., 342,)
making appropriations for the service of the Post-Office Depart-
ment, was intended to relieve the heads of all the Executive
Departments from the requirements of section 3826 of the Revised
Statutes respecting the publication of advertisements, notices,
and proposals for Virginia, Maryland, and the District of Colum-
bia as well as to provide specifically respecting the publication of
mail-lettings by the Postmaster-General for the States and Dis-
trict above mentioned. It is, accordingly, left discretionary
With each head of Department whether he will make the publica-
tion referred to in that section in one or more papers of the Dis-
trict of Columbia. - wº w
Departmental advertisements, 14 Op., 576, Williams, (1875.)
AGIENTS,
See also Contracts.
1. The United States are not bound by the declarations of their agents,
founded upon a mistake of fact, unless it clearly appear that the
agent was acting within the scope of his authority, and was em-
powered in his capacity of agent to make such declaration.
Lee vs. Monroe and Thornton, 7 Cranch, 366.
AGF. ÖF Mºi AJ&RHTTY,
1. The international relation of the period of majority in the United
States considered. z
Baron Gerolt's letter, 8 Op., 62, Cushing, (1856.)
AFLASKA.
1. The rights of Hutchinson, Kohl & Co., as purchasers of certain build-
ings in Alaska from the Russian-American Company, considered.
Case of Hutchinson, Kohl & Co., 14 Op., 302, Williams, (1873.)
2.
The use of the land on which the buildings stood, once permitted to
the Russian-American Company, was extinguished by the treaty,
and did not pass to Hutchinson, Kohl & Co. (Pub. Trs, 671.)
- Ib.
AELATEN ENBEMſ;|Ye
1. There is no legal difference, as to a plea of alien enemy, between a
Corporation and an individual.
Society, &c., vs. Wheeler, 2 Gallison, 105.
ALIENS. 3
2. The existence of war does not prevent the citizens of one belligerent
2.
power from taking proceedings for the protection of their own
property, in their own courts, against the citizens of the other,
whenever the latter can be reached by process.
Lee vs. Rogers, 2 Sawyer, 549.
A person residing in an enemy's country long enough to acquire a
domicile there, is subject to the disabilities of an enemy, so far as
his property is concerned,
United States vs. Cargo of the El Telegrafo, 1 Newberry, Adm., 383.
A Frenchman,who had resided thirteen years in Mexico, held to have
acquired a domicile in the enemy’s country, subjecting him, so
far as his property was concerned, to all the disabilities of an
alien enemy.
Rogers vs. The Amado, 1 Newberry, Adm., 400.
AHLHENS,
An alien can inherit, carry away, and alienate personal property,
without being liable to any jus detractus, The sixth article of the
old treaty of amity and commerce between the United States and
Sweden considered. -
Rights of aliens, 1 Op., 275, Wirt, (1819.)
It is the duty of the President, to whom the care of our foreign rela-
tions is committed, to take all lawful measures for the protection
of alien subjects of a state with which the United States are at
peace, who shall have come within our territory and placed them-
selves under the safeguard of our laws with the consent of the
General and State governments.
Case of two French citizens, 3 Op., 253, Butler, (1837.)
3. But, where aliens have suffered violence from citizens of the United
States, they can be protected only by the redress to be afforded
in the courts and the special interposition of the legislature.
Ib.
The State courts only have jurisdiction of the criminal offense in such
cases; the circuit court of the United States of a civil action,
Where the offenders are citizens.
Ib.
Until the passage of an act by Congress authorizing the enlistment
of aliens into the military service of the United States, such en-
listments must be regarded as invalid. Section 11, of the act of
16th March, 1802, (2Stat., 134,) which forbade the enlistment of any
but citizens of the United States, was revived by section 7 of the
act of 3 March, 1815, (3 Stat., 225.) *
g Iºnlistment of aliens, 3 Op., 671, Legaré, (1841 )
4 ALIENS.
6. An alien may hold, convey, and devise real estate in the District of
Columbia.
Letter to Swiss consul Ca2énova, 5 Op., 621, Crittenden, (1852.)
7. Officers of the Army employed in recruiting may lawfully enlist per-
sons not naturalized as citizens of the United States. The pro-
vision of the act of 1802, limiting enlistments to citizens, has not
been re-enacted in any subsequent law, according to my under-
standing of the statutes.
Enlistment of aliens, 6 Op., 474, Cushing, (1854.)
[It would seem that the reviving clause of the act of 1815 had been
overlooked, and that the limit did exist in 1854.]
8. The Government of the United States has constitutional power to
enter into treaty-stipulations with foreign governments for the
purpose of restricting or abolishing the property-disabilities of
aliens or their heirs in the several States.
In re Droit D'Aubaine, 8 Op., 411, Cushing, (1857.)
9. It is clear, by the common law, that an alien can take lands by pur-
chase, though not by descent; or, in other words, he cannot take
by the act of law, but he may by the act of the party. This prin-
ciple has been settled in the year-books, and has been uniformly
recognized as sound law from that time. Nor is there any dis-
tinction, whether the purchase be by grantor by devise. In either
case, the estate vests in the alien, not for his own benefit, but
for the benefit of the state; or, in the language of the ancient
law, the alien has the capacity to take, but not to hold lands, and
they may be seized into the hands of the sovereign. But until
the lands are so seized, the alien has complete dominion over the
same, * $ * and may convey the same to a purchaser.
3& :}; * In respect to these general rights and disabili-
ties, there is no admitted difference between alien friends and
alien enemies. During war the property of alien enemies is sub-
ject to confiscation jure belli, and their civil capacity to sue is
suspended. But as to capacity to purchase, no case has been
cited in which it has been denied ; in the Attorney-General vs.
Wheeden and Shales, Park. Rep., 267, it was adjudged that a
bequest to an alien enemy was good, and, after peace, might be
enforced. Indeed, the common law, in these particulars, seems
to coincide with the jus gentium.
Fairfaa's devisee vs. Hunter's lessee, 7 Cranch, 603, (619.)
10. An alien mortgagee may maintain a bill to have the debt paid by a
sale of the land which had been conveyed to him as security
therefor. -
Hughes vs. Edwards, 9 Wheaton, 489.
11. A devise of land to trustees, in trust to sell the same and pay the
whole proceeds to an alien cestwi que trust, is, in equity, a bequest
ALLEGIANCE. 5
of personalty; and the alien may take and hold the proceeds, and
can compel the execution of the trust, even as against the state.
Craig vs. Leslie, 3 Wheaton, 563.
12. An alien who becomes naturalized may hold land acquired before
his naturalization. A grant by a state to an alien is not void;
he may take, though he cannot hold against the state.
g Governeur's heirs vs. Robertson, 11 Wheaton, 332.
13. Neither the Constitution nor acts of Congress require that aliens
sheuld reside abroad to entitle them to sue in the courts of the
United States. -
Breedlove and Robeson vs. Nicolet and Sigg, 7 Peters, 413.
14. A law of the State of Louisiana imposing a tax on legacies payable
to aliens is not repugnant to the Constitution of the United States.
Every state or nation may unquestionably refuse to allow an alien
either real or personal property, situated within its limits, either
as heir or legatee, and may, if it thinks proper, direct that prop-
erty so descending or bequeathed shall belong to the state.
Mager vs. Grima, 8 Howard, 490.
15. Aliens domiciled in the United States owe a local and temporary
allegiance to the Government of the United States; they are
bound to obey all the laws of the country, not immediately relat-
ing to citizenship, during their residence, and are equally ame-
nable with citizens for any infraction of those laws. Those aliens
who, being domiciled in the country prior to the rebellion, gave
aid and comfort to the rebellion, were, therefore, subject to be
prosecuted for violation of the laws of the United States against
treason and for giving aid and comfort to the rebellion.
~ Carlisle vs. United States, 16 Wallace, 148.
16. In the courts of the United States alien friends are entitled to claim
the same protection of their rights as citizens.
- Taylor vs. Carpenter, 3 Story, 458.
|Concerning the right of aliens to maintain suits in the Court of Claims,
see Claims.]
ALLEGHANCE.
See Expatriation.
Maturalization.
1. By a principle of international law, on a transfer of territory by one
nation to another, the political relations between the inhabitants
of the ceded country and the former government are changed,
and new ones arise between them and the new government. The
manner in which this is to be effected is ordinarily the subject of
treaty. The contracting parties have the right to contract, to
6 AMBASSADORs—AMERICAN WESSELS.
transfer, and to receive, respectively, the allegiance of all native-
born citizens; but the naturalized citizens, who owe allegiance
purely statutory, when released therefrom are remitted to their
Original status.
/ * Tobin vs. Walkinshaw, 1 McAllister, 186.
2. By the common law, a child born within the allegiance of the Uni-
ted States is born a subject thereof, without reference to the polit-
ical status or condition of its parents. -
McKay vs. Campbell, 2 Sawyer, 119.
AIVºIP3ASSAEDORS.
See Diplomatic Officers.
Public Ministers.
AMEIFEERH&CAN ANID SPANHS HI (CFLAHIW S COIºlº HSSION,
1. The act establishing the Department of Justice does not prohibit the
designation by the President of an advocate on the part of the
TJnited States under the agreement with Spain of 1871, organ-
izing the American and Spanish Claims Commission. [Pub. Trs.,
720.j -
Designation of commissioner and advocate, 13 Op., 416, Akerman, (1871.)
ATWIFEIHRH6CAN IV.I.ERCHANTS,
f See Consular Courts.
AIWITERHéCAN WESSEEILSe
See Seamen.
1. A citizen of the United States may lawfully purchase a merchant-
ship of either of the belligerents, Turkey, Russia, Great Britain,
France, or Sardinia; and, if purchased bona fide, such ship be-
comes an American vessel in the Sense of American property,
although she is not an American vessel in the sense of the regis-
try or enrollment acts; and she is entitled to protection and to
the flag of the United States. Although she cannot take out a
register, that is because she is foreign-built, not because she is
belligerent-built. The question as to what documents such a ship
is entitled to, referred to, but not decided.
. Letter of British minister, 6 Op., 638, Cushing, (1854.)
AMISTAD CASE—APPOINTMENTS. 7
2. Discussion of jurisdiction over acts on board of ships on high seas
and in foreign ports. Crimes committed on board ship on the
high seas are triable in the country to which the vessel belongs.
In port the local authorities have power to enter upon the vessel
for purposes of inquiry universally, but for purposes of arrest
only in matters within their jurisdiction. The local authorities
have jurisdiction over such acts committed on board a foreign
merchant-ship while in port as effect the peace of the port only.
The nationality of the actors being of the crew or passengers
does not alter the case. -
The Atalanta, 8 Op., 73, Cushing, (1856.)
3. Where a gun was fired from an American vessel in the harbor of a
foreign port, killing a person on a vessel belonging to natives of
the country, held that the offense was committed on board the
foreign vessel where the shot took effect.
United States vs. Davis, 2 Sumner, 482.
4. In order to prove that an American vessel has ceased to be such, it
is not enough to prove that she was taken abroad and Sold and
transferred; it must be shown that she was sold and transferred to
a foreigner.
| United States vs. Gordon, 5 Blatchford, 18.
AMHSTAHP (CASE,
See . Treaties.
ANCHORAGE （Plºſſº Se
See Treaties.
APIPOHNT WHENTTS,
See Ea:ecutive Departments.
Office.
1. The power of appointment under the United States cannot be com-
municated by act of Congress to persons not named to that end by
the Constitution. - -
Appointment of a commissioner, 8 Op., 41, Cushing, (1856.)
2. The nomination to an office by the President, confirmation by the
Senate, signature of the commission, and affixing to it the seal
of the United States, are all the acts necessary to render the ap-
pointment complete.
APPOINTMENTS-APPROPRIATIONS.
Hence, the appointment is not rendered invalid by the subse-
Quent death of the President before the transmission of the com-
mission to the appointee, even where it is necessary that the
person appointed should perform certain acts before he can legally
enter upon the duties of the office.
United States vs. Le Baron, 19 Howard, 74.
AIPPER® （PRMATHONS.
. The Secretary of State has authority, under the joint resolution of
5th July, 1866, (14 Stat., 362,) to pay the moneys appropriated
for the Paris Exposition, to be expended in Europe, in coin.
Paris Exposition, 12 Op., 9, Stambery, (1866.)
. Under the provisions of the act of 1870, (16 Stat., 251; R. S., § 3690,)
balances of appropriations made for the fiscal year 1869–70, of
any description, may be applied to the service of the fiscal year
1870–71, so far as, 1st, to pay in the latter year expenses prop-
erly incurred in the former year, and, 2d, to pay dues upon con-
tracts properly made within the former year, though such con-
tracts be not performed till within the latter year. - -
Unexpended balances of appropriation, 13 Op., 288, Akerman, (1870.)
. Neither the 5th nor the 7th sections of the act of 1870 (16 Stat.,
251; R. S., §§ 3690, 3679) place any restriction upon the use of
balances; 1st, Where they are from appropriations not made in
annual appropriation bills; 2d, where they are from appropria-
tions not made specifically for a particular fiscal year; 3d, where
they are from appropriations known as permanent; and, 4th,
- where they are from appropriations known as indefinite. .
- Ib.
. Claims allowed under the act of 1864 (13 Stat., 381; 18 Stat., 75,
222) are not payable from appropriations made for the fiscal year,
none of these appropriations seeming to be for that object.
Ib.
. Appropriations which in terms are for the service of the fiscal year
1870–71 cannot be used for any other purpose than the payment
of the expenses incurred for the service of that year, nor can
any money be taken by counter-requisitions [warrants] from such
appropriation to Settle Old accounts.
Ib.
. Permanent appropriations are those made for an unlimited period;
indefinite appropriations are those in which no amount is named.
Ib.
ARREST-ATTACHMENTS - 9
ARREST.
See Ea:patriation.
JEactradition.
Privilege from Arrest.
Public Minister.
Servants.
1. Every citizen of the United States is secured by the Constitution
against an unreasonable arrest, and to provide against the same
magistrates are interdicted from issuing warrants except upon
probable cause, supported by oath or affirmation.
Rodney French's case, 2 Op., 266, Berrien, (1829.)
2. The communication of the British minister charging that a master of
an American vessel had murdered a British subject on the high
seas, together with copies of depositions taken before a justice of
the peace of the island of Antigua, are not evidence sufficient to
authorize the President to order the arrest of the accused and his
confinement for trial.
- Ib.
ASSETTS,
See Consular Officers.
ASYYLUIVI,
See Ea:tradition.
International Law.
ATTACHIfs.
See Public Ministers.
ATTACHIWIENT'S.
1. Money due to an employé of the Government cannot be attached, by
the process of a State court, in the hands of a disbursing-officer.
Clinton's case, 10 Op., 120, Bates, (1861.)
2. Money in the hands of a disbursing-officer of the United States,
though due and payable by him to a private person, cannot be
attached by process out of a State court.
JBuchaman vs. Alexander, 4 Howard, 20.
10 AWARDS.
AWARRDS.
See Indemnification.
Treaties.
1. An award under the 7th article of the treaty with Great Britain of
1794, (Pub. Trs., 273) to several persons collectively, is conclusive
upon the matter so far that the right to transfer is vested in all
the persons in favor of whom it is made; and if those concerned
have neglected to have inserted in it the amount of their respect-
ive interests, or if they disagree as to their several proportions,
the embarrassments are attributable to themselves. The Govern-
ment cannot undertake to decide among them.
Case of the Somerset, 1 Op., 153, Breckenridge, (1805.)
2. An award under the convention with Peru of 1863, (Pub. Trs., 628,)
“payable in current money of the United States,” may legally be
paid either in Treasury-notes or in specie.
- Montano's case, 11 Op., 52, Bates, (1864.)
3. Where an award was made under the treaty with New Granada of
1857, (Pub. Trs., 564,) held that the political department of the
government could not refer the case to the commission constituted
under the convention with Colombia of February 10, 1864, (Pub.
Trs., 158,) without claimant's consent.
Gibbes's case, 13 Op., 19 Hoar, (1869.
4. Under the treaty with Spain of 1819, (Pub. Trs., 712,) the commis-
sioner had power to decide conclusively upon the amount and
validity of claims, but not upon the conflicting rights of parties
to the sums awarded by him. -
Comegys vs. Vasse, I Peters, 193.
5. Under the act of Congress constituting a board of commissioners to
pass on claims, provided for by the treaty with France of 1831,
(Pub. Trs., 245,) the decision of the board between conflicting
claimants is not conclusive, and the question of their respective
titles is fully open to be adjudicated by the courts.
Frevall vs. Bache, 14 Peters, 95.
6. The award of commissioners under the act of 1849, (9 Stat., 393,)
passed to carry into effect the convention with Mexico of 1848,
(Pub. Trs., 492,) does not finally settle the equitable rights of third
persons to the money awarded. It makes, however, a legal title
to the person recognized by the award as the owner of the claim,
and if he also have equal equity, his legal title cannot be disturbed.
Judson vs. Corcoran, 17 Howard, 612.
7. An act of Congress referring a claim against the Government to an
officer of one of the Executive Departments to examine and adjust,
BALANCES-BELLIGERENTS. 11
does not, even though the claimant and Government act under
the statute, and the account is examined and adjusted, make the
case one of arbitrament and award, in the technical sense of these
Words, so as to bind either party as by submission to award.
Hence a subsequent act, repealing the one making the reference,
(the claim not being yet paid,) impairs no right, and is valid.
Gordon vs. United States, 7 Wallace, 188.
8. Where the Court of Claims was directed to make an examination into
a claim against Mexico, and ascertain whether it was embraced
within the terms of the treaty of 1848 (Pub. Trs. 492) and was
authorized to fix and determine the amount which should be paid,
and did so: Held that the matter referred to the Court of Claims
was the ascertainment of a particular fact, to guide the Govern-
ment in the execution of treaty stipulations, and that the deter-
mination of the court cannot be reviewed in the Supreme Court.
- Ea: parte Atocha, 17 Wallace, 439.
9. Where a special mode is provided for obtaining compensation, such
as by statute or by treaty, or where the power of assessing or
deciding on the questions is given to a special tribunal, the rem-
edies specially provided can alone be pursued, and no action in
the premises can be maintained in the Court of Claims.
Meade's case, 2 C. Cls., 228; affirmed, 9 Wallace, 691.
IBAMLANCIES.
See Appropriations.
Iº AIRRATERY,
See Crimes.
lº AYS,
See Neutral Territory.
1BERLILE GREFERENTS.
See Civil War.
International law.
.Neutrality.
Neutral Territory, *
Belligerent ships of war, privateers, and the prizes of either, are
entitled, on the score of humanity, to temporary refuge in neutral
waters from casualties of the sea and land.
Case of The President, 7 Op., 123, Cushing, (1855.)
12 |BELLIGERENTS.
2. By the law of nations, belligerent ships of war, with their prizes,
enjoy asylum in neutral ports for the purpose of obtaining sup-
plies or undergoing repairs, according to the discretion of the
neutral Sovereign, who may refuse the asylum absolutely, or grant
it under such conditions of duration, place, and other circum-
stances, as he shall see fit, provided that he must be strictly
impartial in this respect toward all the belligerent powers.
Iö.
3. Where the neutral state has not signified its determination to refuse,
the privilege of asylum to belligerent ships of war, privateers, or
their prizes, either belligerent has a right to assume its existence
and enter upon its enjoyment, subject to such regulations and
limitations as the neutral state may please to prescribe for its
Own Security.
Ib.
4. The United States have not, by treaty with any of the present bellig-
erents, bound themselves to accord asylum to either; but neither
have the United States given notice that they will not ; and of
course our ports are open, for lawful purposes, to the ships of
war of either Great Britain, France, Russia, Turkey, or Sardinia.
So that when a British vessel of war had brought a prize into the
harbor of San Francisco, and on a petition presented by persons,
alleging that they were unlawfully detained on the prize-wessel, a
habeas corpus was issued from a State court in California, which
was duly served. Held, the court had no jurisdiction, and the
officer was not bound to obey the writ.
- Ib.
5. Neutral muniments, however regular and formal, if colorable only,
do not affect belligerent rights.
- l The Rugen, 1. Wheaton, 61.
6. The United States not having acknowledged the existence of a Mexi-
can republic or state at war with Spain, the Supreme Court does
not recognize as legal any acts done under the flag and commis-
sion of Such republic or state.
The Nueva Anna and Liebre, 6 Wheaton, 193.
7. California, or the port of San Francisco, had been conquered by the
arms of the United States as early as 1846. Shortly afterward,
the United States had military possession of all of Upper Cali-
fornia. Early in 1847, the President, as constitutional commander-
in-chief of the Army and Navy, authorized the military and naval
commander of our forces in California to exercise the belligerent
rights of a conqueror, to form a civil government for the con-
Quered country, and to impose duties C m imports and tonnage as
BILLS OF EXCHANGE. - - 13
military contributions for the support of the government, and of
the army which had the conquest in possession. #: # #
It cannot be doubted that these orders of the President, and the
action of our Army and Navy commander in California, in con-
formity with them, was according to the law of arms and the
right of conquest, or that they were operative until the ratifica-
tion and exchange of a treaty of peace. Such would be the case
upon general principles in respect to war and peace between
nations.
- Cross vs. Harrison, 16 Howard, 190.
8. The United States, in the enforcement of their constitutional rights
2
against armed insurrection, have all the powers, not only of a
sovereign, but also of the most favored belligerent.
Lamar vs. Browne, 92 U. S. R., S. C., 187.
Bāſā, H.S @F TEX6CHANGE.
. Bills of exchange may be indorsed by an attorney-in-fact, having
competent authority derived from a power.
Indorsement of bills, 1 Op., 188, Rush, (1816.)
. When the United States, by their authorized officers, become a party
to negotiable paper, they incur all the responsibilities of individ-
uals who are parties to such instruments. (See United States vs.
Bank of the Metropolis, 15 Peters, 377.) -
Concerning liability of Departments, 4 Op., 90, Legaré, (1842.)
. Where a minister is authorized to draw upon foreign bankers for his
salary, and his draft brings a premium, he is chargeable with
such premium, and holds it in trust for the Government.
Case of James Semple, chargé to New Granada, 4 Op., 295, Nelson, (1843.)
. The Government, being bound to pay a minister a stipulated salary,
must make that amount available to him at the place of his for-
eign residence, but is entitled to whatever the minister receives
more than his salary, in the fiscal arrangements for making it
available,
Ib,
. The Government is liable for costs and damages upon a draft drawn
by its direction upon a banker abroad by a minister for his sal-
ary and protested for non-payment. Having devised the method
of making salaries available to ministers and agents abroad, and
having instructed them to draw upon a particular banking-house,
the Government is bound to make reparation for any damages .
14. BILLS OF EXCHANGE.
sustained in the way of costs by the non-acceptance or non-pay-
ment of the drafts.
- Ib
6. In the case of Mr. Semple, chargé d'affaires to New Granada, who
had drawn a draft for his salary, which was dishonored at the
banking-house in London, and the holder subjected to delay
thereby, and the drawer to payment of interest: Decided, that
the Government is liable for such interest; and that Mr. Semple is
liable to account to the Government for interest on the amount
over and above his salary realized by him on the negotiation of
such draft from the time he was notified of the mistake.
Ib., (299.)
7. Whether the Government is liable for the costs and damages occa-
sioned by the non-acceptance of a draft drawn by the chargé
d'affaires of the United States at Lima, depends upon whether he
was authorized to draw it, and whether its non-acceptance was
the mistake or fault of the Government. If he were authorized
to draw, and the Government were at fault, the Department
should make good the damages and costs to which he became
liable on the return of his bill.
Larned's case, 2 Op., 504, Taney, (1832.)
8. It is the duty of the Government to provide a way to make the salary
and expenses of a minister abroad good to him at the capital of his
residence. -
Case of Mr. Wise, minister at Rio, 4 Op., 506, Mason, (1846.)
9. If a minister be directed to draw on London for his salary and ex-
penses, and there shall be a loss on the sale of his bills, it is the
duty of the Government to make such loss good to him.
- Iö,
10. Where a draft was legally drawn by a purser in California on the
Navy Department, and indorsed to the order of B, who presented
it for payment on April 5, 1850, but it was not paid until 9th
August following: Held, that B, having accepted payment and
surrendered the bill, has no claim for interest and twenty per
cent. damages. - -
Beers's case, 5 Op., 444, Crittenden, (1851.)
11. Such bill is to be considered as a foreign bill of exchange, and a pro-
test was necessary before even the drawer or indorser could be
holden for damages. -
Ib.
12. The question whether the United States will pay according to their
original tenor drafts drawn by the Mexican government, under
BILLS OF EXCHANGE. - 15
}
the Mesilla convention, or suspend the payment at the subse-
quent request of that government, is matter of political, not of
legal determination. º
- Payment of drafts, 7 Op., 599, Cushing, (1855.)
13. Where the Mexican government while administered by President
Santa Anna drew a series of drafts under the Mesilla conven-
tion in favor of citizens of the United States on account of
advances made by them, which, being in anticipation of the day of
payment due, were not paid: Held, that it was a political and not
a legal question whether the request of the new administration
of the Mexican Republic that the drafts should be considered of no
effect should be observed or not. The rule between individuals
in a similar case does not apply. I.
14. As a general rule, when the Government, by its authorized agent,
becomes a party to negotiable paper, it has all the rights, and
incurs all the responsibilities, of other parties to such instruments.
But exceptions to this rule may become established in the prae-
tice of different departments of the Government.
- Whitman's case, 8 Op., 1, Cushing, (1856.)
15. Wherever the Government of the United States, through its law-
fully-authorized agents, becomes the holder of a bill of exchange,
it is bound to use the same diligence, in order to charge the
indorser, as in a transaction between private individuals. -
United States vs. Barker, 12 Wheaton, 559.
16. If the United States, through their authorized officer, accept a bill
of exchange, they are bound for its payment to a bona-fide holder
for value, whatever may have been the equities as between them
and the drawer. .
- United States vs. Bank of the Metropolis, 15 Peters, 377.
17. An instrument, though in the form of a bill of exchange drawn by
one government on another, is not governed by the law merchant,
and therefore is not subject to protest and consequential dam-
ageS.
United States vs. Bank of the United States, 5 Howard, 382.
18. The Government of the United States has a right to use bills of
exchange in conducting its fiscal operations, as it has the right
to use any other appropriate means for accomplishing its legiti-
mate purposes. -
The Floyd acceptances, 7 Wallace, 666.
19. When the Government becomes a party to such a bill, it is bound
by the same rules in determining its rights and liabilities as
individuals are.
Ib.
16
} |BILLS OF EXCHANGE,
20.
21.
23.
24.
28.
29.
As the United States can only become a party to a bill of exchange
by the action of an officer or other authorized agent of the Gov-
ernment, the authority of the officer or agent may be inquired
into, as in the case of the agent of an individual. Ib
This authority, in case of bills of exchange, depends upon the same
principles that determine such authority in other contracts, and
is not aided by the doctrine that when once lawfully made, nego-
tiable paper has a more liberal protection than other contracts in
the hands of innocent holders.
Tö.
. Under our system of government, the powers and duties of all its
officers are limited and defined by laws, and generally by acts of
Congress.
Ib.
As there is no express authority to be found for any officer to draw
or accept bills of exchange, such authority can only exist when
these are the appropriate means of carrying into effect Some
other power belonging to such officer under his prescribed duties.
Ib.
It does not follow that because an officer may lawfully issue bills of
exchange for some purposes, he can in that mode bind the Gov-
ernment in other cases where he has no such authority.
Ib.
. As under existing laws there can be no lawful occasion for an officer
to accept drafts on behalf of the Government, such acceptances
cannot bind it, though there may be occasions for drawing or
paying drafts which may bind the Government. Iö
. The bonds and Treasury notes of the United States, payable to the
holder or bearer at a definite future time, are negotiable paper,
and their transferability is subject to the commercial law of other
paper of that character.
Vermilye & Co. vs. Adams Express Company, 21 Wallace, 138.
. Where such paper is overdue, a purchaser takes subject to the rights
of antecedent holders to the same extent as in the Case of other
paper bought after its maturity. Ib
No usage or custom among bankers dealing in such paper can
be proved in contravention of this rule of law. They cannot in
their own interests, by violations of the law, change it. Ib
It is their duty, when served with notice of the loss of such pa-
per by the rightful owner after maturity, to make memoranda
BLOCKADE. - 17
or lists, or adopt some other reasonable mode of reference, where
the notice identifies the paper, to enable them to recall the service
of notice.
w Ib.
30. Hence, Treasury-notes of the United States, stolen from an express
company and sold for value after due in the regular course of
business, may be recovered of the purchaser by the express com-
pany, which had succeeded to the right of the original owner.
IBLOC KAPDE.
1. Where an American vessel had entered and cleared from a port
2
5.
under blockade, and, while returning to New Orleans, was cap-
tured by a vessel belonging to the French blockading squadron,
from which the captain of the former rescued her and brought
her to her destination, the port of New Orleans; and demand,
subsequently, being made of the executive to deliver up the
vessel and cargo, both on account of the said breach of blockade
and rescue: Held, that the captors have no right of property in
said vessel and cargo, and that the liability of the vessel to con-
demnation, if it ever existed, has ceased by the termination of
her voyage at the port of her destination.
- Case of the Lone, 3 Op., 377, Grundy, (1838.)
. Held, moreover, that the case called for a judicial decision settling
certain questions of fact concerning the legality of the blockade,
capture, &c., before the Executive can act.
Ib,
&
& Independently Of this, there is no constitutional right vested in the
Executive to deliver up the property of an American citizen,
claimed by him as his own, and in his actual possession, and not
condemned, nor legally adjudged to belong to another.
- Ibi
After a regular condemnation of a vessel and cargo in a prize-court
for breach of blockade, the President cannot remit the forfeiture
and restore the property or its proceeds to the claimant.
- Effect of pardon, 10 Op., 452, Bates, (1863.)
The act of dispatching an American vessel, in ballast, from a port of
the United States, with an immediate destination to a neutral,
and an ulterior destination to a blockaded port, with a cargo
taken in at such neutral port, is an offense against the United
States under section 2 of act 1862, (12 Stat., 590; R. S., § 5334.)
2 Case of blockade runners, 10 Op., 513, Coffey, ad. int., (1863.).
i 8 BLOCKADE.
6. A ship Warranted to be American is impliedly warranted to conduct
as American, and an attempt to enter a blockaded port, knowing
it to be blockaded, forfeits that character. - *
• Fitzsimmons vs. Newport Ins. Co., 4 Cranch, 185, [200.]
7. Under the treaty with Great Britain of 1794, art. 18, (Pub. Trs., 278,)
an intention to enter a blockaded port is not cause for condemna.
tion. •
Ib.
8. That a belligerent may lawfully blockade the port of his enemy is
admitted. But it is also admitted that this blockade does not,
according to modern usage, extend to a neutral vessel found in
port, nor prevent her coming out with the cargo which was on
board when the blockade was instituted. If, then, such a vessel
be restrained from proceeding on her voyage by the blockading
squadron, the restraint is unlawful.
Olivera vs. Union Insurance Co., 3 Wheaton, 194.
9. Neutrals may question the existence of a blockade, and challenge
the authority of the party which has undertaken to establish it.
Prize Cases, 2 Black, 635.
10. One belligerent engaged in actual war has a right to blockade the
ports of the other, and neutrals are bound to respect that right.
* Ib.
11. To justify the exercise of this right and legalize the capture of a
neutral vessel for violating it, a state of actual war must exist,
and the neutral must have knowledge or notice that it is the
intention of one belligerent to blockade the ports of the other.
-- & Ib.
12. To create this and other belligerent rights, as against neutrals, it is
not necessary that the party claiming them should be at War
with a separate and independent power; the parties to a civil war
are in the same predicament as two nations who engage in a con-
test and have recourse to arms.
Ib.
13. It is a settled rule that a vessel in a blockaded port is presumed to
have notice of a blockade as soon as it commences.
- Ib.
14. A blockade may be made effectual by batteries on shore as well as
by ships afloat, and, in case of an inland port, may be maintained
by batteries commanding the river or inlet by which it may be ap-
proached, supported by a naval force sufficient to warn off inno-
cent and eapture offending vessels attempting to enter.
* - The Circassian, 2 Wallace, 135.
BLOCKADE. - j9
15. The occupation of a city by a blockading belligerent does not ter-
- minate a public blockade of it previously existing, the city itself
being hostile, the opposing enemy in the neighborhood, and the
occupation limited, recent, and subject to the vicissitudes of war.
Still less does it terminate a blockade proclaimed and maintained
not only against that city, but against the port and district Com-
mercially dependent upon it and blockaded by its blockade.
+. Ib.
16. A public blockade—that is to say, a blockade regularly notified to
neutral governments, and, as such, distinguished from a simple
blockade, or such as may be established by a naval officer acting
on his own discretion or under direction of his superiors—must,
in the absence of clear proof of a discontinuance of it, be pre-
sumed to continue until notification is given by the blockading
government of such discontinuance.
Ib.
17. A vessel sailing from a neutral port with intent to violate a blockade
is liable to capture and condemnation as prize from the time of
Sailing.
Ib.
18. The blockade of the coast of Louisiana, as established there, as on
the rest of the coast of the Southern States generally by the proc-
lamation of April 19, 1861, (12 Stat., 1258,) was not terminated by
the capture of the forts below New Orleans in April, 1862, by
Commodore Farragut, and the occupation of the city by General
Butler on May 6, 1862, and the proclamation of the President of
May 12, 1862, (12 Stat., 1263,) declaring that after June 1 the
blockade of the port of New Orleans should cease. Hence it re-
mained in force at Calcasieu, on the west extremity of the coast of
Louisiana, as before. t -
- - The Baigorry, 2 Wallace, 474.
19. A blockade, once regularly proclaimed and established, will not be
held to be ineffective by continual entries in the log-book, sup-
ported by testimony of officers of the vessel seized, that, the
weather being clear, no blockading-vessels were to be seen off the
port from which the vessel sailed. -
- The Andromeda, 2 Wallace, 481.
20. Where a vessel knows of a blockade when she sails, and has no just
reason to suppose it has been discontinued, her approach to the
mouth of a blockaded port for inquiry is itself a breach of the
blockade, and subjects both vessel and cargo to seizure and con-
demnation.
The Cheshire, 3 Wallace, 231, [235.]
20 BLOCKADE.
21. Mere sailing for a blockaded port is not an offense; but where the
vessel has a knowledge of the blockade, and sails for the block-
aded port with the intention of violating it, she is clearly liable
to Capture. - -
The Admiral, 3 Wallace, 604.
22. A blockade is not to be extended by construction.
The Peterhoff, 5 Wallace, 28.
23. The mouth of the Rio Grande was not included in the blockade of
the ports of the rebel States, set on foot by the National Govern-
ment during the late rebellion; and neutral commerce with Mat-
amoros, a neutral town on the Mexican side of the river, except
in contraband destined to the enemy, was entirely free.
>|-24. Semble, that a belligerent cannot blockade the mouth of a river oc-
cupied on one bank by neutrals with complete rights of naviga-
tion.
% Ib.
25. A vessel destined for a neutral port with no ulterior destination for
the ship, or none by sea for the cargo to any blockaded place,
violates no blockade.
Ib.
26. A neutral, professing to be engaged in trade with a neutral port,
under circumstances which warrant close observation by a block.
ading-squadron, must keep his vessel, while discharging or re-
ceiving cargo, so clearly on the neutral side of the blockading-
line, as to repel, so far as position can repel, all imputation of an
intent to break the blockade. Neglect of that duty may Well
justify capture and sending in for adjudication; though, in the
absence of positive evidence that the neglect was willful, it
might not justify a condemnation. *
The Dashing Wave, 5 Wallace, 170.
27. A neutral vessel, at anchor, completely laden with a neutral cargo,
On the neutral side of a river dividing neutral from hostile Water,
washing a blockaded coast, was captured as being subject to just
suspicion of an intent to break the blockade. The captain of the
vessel (who was, however, absent at the time of capture) and
the mate, being examined in preparatorio, testified that she was
in neutral water when captured; a stevedore, yet on board, that
she had drifted to the place where she was taken under stress of
weather; he not knowing whether, when captured, she was in
neutral water or not: Held, that this preliminary testimony war-
ranted restoration.
The Teresita, 5 Wallace, 180.
BLOCKADE. 21
28. A British vessel captured during the rebellion and our blockade of
the southern coast, by an American war-steamer, on her way
from England to Nassau, N. P., condemned as intending to run
the blockade; Nassau being a port which, though neutral within
the definition furnished by international law, was constantly and
notoriously used as a port of call and transshipment by persons
engaged in systematic violations of blockade, and in the convey-
ance of contraband of war; the vessel and cargo being consigned
to a house well known, from previous suits, to the court, as so
engaged; the second officer of the vessel, and several of the sea-
men, examined in preparatorio, testifying strongly that the pur-
pose of the vessel was to break the blockade; and the owner, who
was heard, on leave given to him to take further proof touching
the use he intended to make of the steamer after arrival in Nas-
sau, and in what trade or business he intended she should be
engaged, and for what purpose she was going to that port, say-
ing and showing nothing at all on those points. -
The Pearl, 5 Wallace, 574.
29. The liability to confiscation, which attaches to a vessel that has con-
tracted guilt by breach of blockade, does not attach to her longer
than until the end of her return voyage.
The Wren, 6 Wallace, 582.
30. To justify a vessel of a neutral in attempting to enter a blockaded
port, she must be in such distress as to render her entry a matter
of absolute and uncontrollable necessity.
The Diana, 7 Wallace, 354.
31. Where, in time of war, a foreign vessel, availing herself of a proc-
lamation of the President of May 12, 1862, entered the port
of New Orleans, the blockade of which was not removed but only
relaxed in the interests of commerce, she thereby assented to the
conditions imposed by the proclamation, that she should not take
out goods contraband of war, nor depart until cleared by the
collector of customs according to law.
United States vs. Diekelman, 92 U. S. R., S. C., 520.
32. It seems that by the true construction of the proclamation of the
President of April 19, 1861, only those who are ignorant of the
blockade are entitled to the warning and indorsement mentioned
in the proclamation.
& The Revere, 2 Sprague, 107.
33. As against the rebels, the United States has both sovereign and
belligerent rights. In establishing the blockade, it has exercised
only belligerent rights, and as a sovereign, it might, by a muni-
cipal regulation, have interdicted all commerce with ports in the
States of the insurgents.
- & Ib. .
22 BONDS—BOUNDARIES.
34. A seizure of a vessel for violation of a blockade may be lawful, if
made by a national vessel, though such vessel be not part of th
blockading force. -
- The Memphis, Blatchford's Prize Cases, 260.
BoNEDs.
See Consular Officers.
Sureties.
1. A bond, to be accepted by the Government, ought to be executed by
the obligees, and not by their attorney.
- Sombrero Island, 9 Op., 128, Black, (1857.)
2. A bond Voluntarily given by a disbursing-officer to the United States
thropigh the proper department, to secure the faithful perform-
ance of his duties, is a valid contract, though the taking of such
a bond may not be prescribed by any act of Congress.
- United States vs. Tingey, 5 Peters, 115.
3. But no officer of the Government has the right to require from any
subordinate officer, as a condition of his holding office, that he
should execute a bond with a condition different from that pre-
scribed by law; and a bond thus obtained is void.
Ib.
4. Official bonds cover not merely duties imposed by existing law, but
duties belonging to and naturally connected with the office or
business in which the bonds are given, imposed by subsequent
law.; provided, however, that the new duties have relation to such
office or business. -
- - United States vs. Singer, 15 Wallace, 112, [122.]
Hº QUNHPARFIFES.
1. When a river is the line of arcifinious boundary between two nations,
by a treaty, its natural channel so continues, notwithstanding any
changes of its course by accretion or decretion of either bank;
but if the course be changed abruptly into a new bed by irruption
or avulsion, then the river-bed becomes the boundary. [The prin-
ciple applied to the report of the commissioners for determining
the boundary between the Mexican Republic and the United
States.] -
- Boundaries on the Rio Bravo, 8 Op., 175, Cushing, (1856.)
CALIFORNIA. g 23
2. The true geographical boundaries of the Isthmus of Panama not being
considered in connection with a grant to build a railroad, need
not extend on the north to the Costa Rica line, nor to include
the Isthmus of Chiriqui.
Isthmus of Panama, 9 Op., 391 Black, (1859.)
3. When a great river is the boundary between two nations or States,
if the original property is in neither and there be no convention
respecting it, each holds to the middle of the stream. But where
a State which is the original proprietor grants the territory on
one side only, it retains the river within its own domains, and the
newly-erected State extends to the river only. In such case the
lower-water mark is its boundary, whether the fluctuations in the
stream result from tides or from an annual rise and fall.
Bandly vs. Anthony, 5 Wheaton, 374.
4. In a controversy between the United States and a foreign sovereign
as to boundary this court must follow the decision of that Depart-
ment of the Government which is intrusted by the Constitution
with the care of its foreign relations, especially if sanctioned by
the legislative power.
Foster vs. Neilson, 2 Peters, 253.
5. It is a sound principle of national law, and applies to the treaty-
making power of this Government, whether exercised with a for-
eign nation or an Indian tribe, that all questions of disputed
boundaries may be settled by the parties to the treaty.
Lattimer vs. Poteet, 14 Peters, 14.
CAHLHIFORNIA.
1. California, or the port of San Francisco, had been conquered by the
arms of the United States as early as 1846. Shortly afterward
the United States had military possession of all of Upper Califor-
nia. Early in 1847 the President, as constitutional Commander-
in-Chief of the Army and Navy, authorized the military and naval
commander of our forces in California to exercise the belligerent
rights of a conqueror, and to form a civil government for the con-
Quered country, and to impose duties on imports and tonnage, as
military contributions for the support of the Government and of
the Army which had the conquest in possession. #: # $
No one can doubt that these orders of the President, and the
action of the Army and Navy commanders in California, in con-
formity with them, were according to the law of arms and the right
of conquest, or that they were operative until the ratification and
exchange of a treaty of peace. Such would be the case upon gen-
eral principles in respect to war and peace between nations.
Cross vs. Harrison, 16 EIoward, 190.
24 CAPTURE.
2. The tribunals of the United States, in passing upon the rights of the
inhabitants of California to the property they claim under grants
from the Spanish and Mexican governments, must be governed
by the stipulations of the treaty, the law of nations, the laws,
usages, and customs of the former government, the principles of
equity, and the decisions of the Supreme Court, so far as they are
applicable. They are not required to exact a strict compliance
with every legal formality.
* United States vs. Anguisola, 1 Wallace, 352.
3. The cession of California to the United States did not impair the
- rights of private property. These rights were consecrated by the
law of nations and protected by the treaty of Guadalupe Hidalgo.
The act of March 3, 1851, to ascertain and settle private land-
claims in the State of California, was passed to assure to the in-
habitants of the ceded territory the benefit of the rights thus se-
cured to them. It recognizes both legal and equitable rights, and
should be administered in a liberal spirit.
United States vs. Moreno, 1 Wallace, 400.
4. The authority and jurisdiction of Mexican officers in California are
regarded as terminating on the 7th of July, 1846. The political
department of the Government has designated that day as the
period when the conquest of California was completed and the
Mexican officers were displaced, and in this respect the judiciary
follows the action of the political department. -
United States vs. Yorba, 1 Wallace, 412, [423.] .
CAIPTTURE.
1. Notwithstanding active hostilities had ceased in Georgia, cotton,
although private property, seized there by the military forces of
the United States, in obedience to an order of the commanding
general, during their occupation and actual government of that
State, was taken from hostile possession within the meaning of
that term, and was, without regard to the status of the owner, a
legitimate subject of capture.
Lamar vs. Browne, 92 U. S. R., S. C., 187.
2. What shall be the subject of capture, as against an enemy, is always
within the control of every belligerent. It is the duty of his mil-
itary forces in the field to seize and hold that which is apparently
so subject, leaving the owner to make good his claim as against
the capture, in the appropriate tribunal established for that pur-
pose. In that regard they occupy on land the same position that
naval forces do at Sea.
Ib.
CAPTURE AND PRIZE. 25
3. Unless restrained by governmental relations, the capture of mova-
ble property on land changes the ownership of it without adjudi-
cation.
Ib.
4. The capture of a vessel for violation of blockade may be lawful, if
made by a national vessel, though the latter be not part of the
blockading force.
The Memphis, Blatchford's Prize Cases, 260.
5. If the vessel arrested was acting in violation of public law, she is
liable to be tried and condemned therefor in behalf of the United
States, whether the persons or means employed in the seizure had
authority to make it or not.
The Ouachita, Blatchford's Prize-Cases, 306.
CAPTUERRE ANED PRIZE,
See Treaties.
1. Captures must be determined upon competent evidence, and no rules
for determining the competency of such evidence are more proper
for the use of the executive department than those which pre-
Vail in the courts of admiralty. *:
The William, 1 Op., 40, Bradford, (1794.)
2. A captured vessel must be brought within the jurisdiction of the
country to which the captor belongs before a regular condemna-
tion can be awarded. -
British ship John, 1 Op., 78, Lee, (1797.)
3. Where a vessel, alleged to be Danish property, was seized as French
property, on the south side of the island of St. Domingo, and
whilst proceeding for an examination under the protection of
the American flag, was seized by a British armed ship and taken
into Jamaica and there condemned, and a claim is made by the
Danish subject upon the Government of the United States for
compensation: Held, that the first captors were not liable for the
first capture and detention for examination, there being probable
cause for the seizure, nor for the second capture; and the Govern-
ment of the United States was not bound for the unlawful cap-
tures of its subjects. -
- -> The Mercator, 1 Op., 106, Lincoln, (1802.)
4. The word “captured,” as used in the fourth article of the treaty
with France of 1800, (Pub. Trs., 225, expired by limitation,) as
a technical and descriptive term, does not include the meaning
and ought not to be construed to have the effect of the term
“recaptured” in the sense of the treaty.
Case of a Portuguese brig, 1 Op., 111, Lincoln, (1802.)
26 CAPTURE AND PRIZE.
5. The property of an ally recaptured is incapable of being condemned,
in the sense in which this term is used in the treaty with France
of 1800. (Pub. Trs., 225, expired by limitation.)
Ib. .
6. Where a French vessel was captured and condemned as lawful prize
prior to the treaty with France of 1800, (Pub. Trs., 224, ex-
pired by limitation,) and one moiety had been paid to the Cap-
tors and the other to the United States, after the signing of the
treaty, and on hearing before the Supreme Court on writ of error,
the decree of the circuit court had been reversed, and the vessel,
&c., had been ordered to be restored, and pursuant thereto the
moiety of the United States had been paid over and a claim made
for the other moiety which had been paid to the captors: Held,
that the United States are not liable for such moiety.
The schooner Peggy, 1 Op., 114 Lincoln, (1802.)
7. On a reconsideration of the case referred to in the preceding opinion
and examination of the opinion, delivered by the Supreme Court,
giving a judicial interpretation of the treaty referred to, the pre-
ceding opinion is substantially re-affirmed.
The schooner Peggy, 1 Op., 119, Lincoln, (1802.)
8. Proceedings in the vice-admiralty court at St. Domingo are nullities,
for the reason that the court is not legally constituted.
The vice-admiralty court at St. Domingo, 5 Op., 689; appendia, Lee, (1798.)
9. The condemnation of a vessel and cargo in a prize-court is not a
criminal sentence. No person is charged with an offense, and so
no person is in a condition to be relieved and reinstated by a
pardon.
Effect of pardon, 10 Op., 452, Bates, (1863.)
10. After a regular condemnation of a vessel and cargo in a prize-court,
for breach of blockade, the President cannot remit the forfeiture
and restore the property or its proceeds to the claimant.
- Ib.
11. Section 2 of the prize act of 1863, (12 Stat., 759,) authorizing the
taking by the Government of any captured property and the de-
posit of its value in the Treasury, subject to the jurisdiction of
the prize-court in which proceedings may be instituted for con-
demnation of the property, is a valid exercise of the power of
Congress to make rules concerning captures.
Lord Lyons's communication concerning prizes, 10 Op., 519, Bates, (1863.)
12. The provision of that section is not in conflict with the public law of
war, and does not impair the just rights of neutrals under that
law.
1b.
CAPTURE AND PRIZE. 27
13. But if it were thus in conflict with public law, it would be none the
less binding upon the courts of the United States; though such
conflict might lead to diplomatic reclamations, and possibly to
WFUI”.
Ib.
|NOTE.-The act of 1863 was repealed by act 1864, (13 Stat.,306,) and
the latter was embodied in the Revised Statutes. The act of 1864
did not expressly provide for, but assumes, the existence of the
right of the Government to appropriate prizes.]
14. The capture of a vessel of a country at peace with the United States,
16
17
18
19
made by a vessel fitted out in one of our ports and commanded
by one of our citizens, is illegal. If a privateer, duly commis-
sioned by a belligerent, collude with a vessel so fitted out and
commanded, to cover her prizes and share with her their pro-
ceeds, such collusion is a fraud on the law of nations.
- Talbot vs. Janson, 3 Dalla8, 133.
. In 1799 there was a limited state of hostilities between this country
and France, and the capture of a private armed vessel, officered
and manned by Frenchmen, and sailing under the French flag,
was lawful, though the vessel was the property of a neutral, from
whom the French possessors had captured her.
r - Talbot vs. Seeman, 1 Cranch, 1.
. It is a universal principle, which applies to those engaged in a par.
tial as well as to those engaged in a general war, that where
there is probable cause to believe the vessel met with at sea is in
the condition of one liable to capture, it is lawful to take her, and
subject her to the examination and adjudication of the courts.
• - Ib. 31, 32.
. The law of prize is part of the law of nations. In it a hostile char.
acter is attached to trade, independently of the character of the
trader who pursues or directs it.
, & w The Rapid, 8 Cranch, 155, [162. I
. Under the instructions of the President, a privateer may lawfully
capture a vessel, liable to capture, within the territorial limits of
the United States, and bound to a port of the United States.
* * - The Joseph, 8 Cranch, 451.
. In cases of recapture the rule of reciprocity is applied. If France
would restore in a like case, then we are bound to restore; if
otherwise, then the whole property must be condemned to the
recaptors. It appears that by the law of France in cases of
recapture, after the property has been twenty-four hours in pos-
Session of the enemy, the whole property is adjudged good prize
to the recaptors, whether it belonged to her subjects, to her allies,
28 CAPTURE AND PRIZE.
or to neutrals. We are bound, therefore, in this case to apply
the same rule; and as the property in this case was recaptured
after it had been in possession of the enemy more than twenty-
four hours, it must, so far as it belonged to persons domiciled in
France, be condemned to the captors.
- Schooner Adeline, 9 Cranch, 244, [288.]
20. If a capture be made by a privateer, which had been illegally equipped
in a neutral country, the prize-courts of such neutral country
have power, and it is their duty to restore the captured property,
if brought within their jurisdiction, to its owner.
- - Brig Alerta vs. Moran, 9 Cranch, 359, [364.]
21. A shipment was made by Messrs. Burnett & Co., of London, to Messrs.
Ivens & Burnett, of St. Michael's, and the invoices declare the goods
to be by order, and for account and risk of the latter. It is con-
tended, on behalf of the captors, that both houses are composed of
the same persons, namely, William S. Burnett, who is domiciled
at London, and William Ivens, who is domiciled at St. Michael's;
and that the documentary evidence and private correspondence
show that the shipment was made on account of the hostile house.
If the fact of the identity of the two houses were material to the de-
cision of the cause, it might furnish a proper ground for an order
for further proof. But admitting the fact to be as the captors
contend, we are satisfied that it can be of no avail to them. It
is clear, from the whole documentary evidence, that this shipment
Was not made on the account and risk of the hostile house, but
bona fide on the account and risk of the neutral house. It does
not, therefore, present a case for the application of the principle
that the property of a house of trade in the enemy’s country is
condemnable as prize, notwithstanding the neutral domicile of one
of its partners. On the contrary, it presents a case for the appli-
cation of the ordinary principle which subjects to confiscation,
jure belli, the share of a partner in a neutral house where his own
domicile is in a hostile country.
The Antonia Johanna, 1 Wheaton, 159.
22. The capture of a neutral ship having enemy's property on board is
a strictly justifiable exercise of the rights of war. It is no wrong
done to the neutral, even though the voyage be thereby defeated.
The captors are not therefore answerable in poenam to the neutral
for the losses which he may sustain by a lawful exercise of bellig-
erent rights. It is the misfortune of the neutral and not the fault
of the belligerent.
- Ib.
23. By the capture the captors are substituted in lieu of the original
owners, and they take the property cum onere. They are therefore
CAPTURE AND PRIZE. 29
responsible for the freight which then attached upon the property, .
of which the sentence of condemnation ascertains them to be the
rightful owners, succeeding to the former proprietors. So far the
rule seems perfectly equitable; but to press it further, and charge
them with the freight of goods which they have never received,
or with the burden of a charter-party into which they have never
entered, would be unreasonable in itself and inconsistent with the
admitted principles of prize-law. It might, in case of a justifiable
capture, by the condemnation of a single bale of goods, lead the
captors to their ruin with the stipulated freight of a whole cargo.
Ib.
24. If a neutral ship, laden in part with neutral and in part with enemy's
property, be captured, the whole freight is not a charge on the
property condemned; that pays only its own freight. Ib
25. In general the rules of the prize-court as to the vesting of property
are the same with those of the common law, by which the thing
sold, after the completion of the contract, is properly at the risk
of the purchaser. But the question still recurs, when is the con-
tract executed ? It is certainly competent for an agent abroad,
who purchases in pursuance of orders, to vest the property in his
principal immediately on the purchase. This is the case when he
purchases exclusively on the credit of his principal or makes an
absolute appropriation and designation of the property for his
principal. But where a merchant abroad, in pursuance of orders,
either sells his own goods or purchases goods on his own credit,
(and thereby, in reality, becomes the owner,) no property in the
goods vests in his correspondent until he has done some notorious
act to divest himself of his title or has parted with the possession
by an actual and unconditional delivery for the use of such cor-
respondent.
The St. José Indiano, 1 Wheaton, 208.
26. The United States not having acknowledged the existence of a
Mexican republic or state at war with Spain, the Supreme Court
does not recognize the existence of any lawful court of prize at
Galveston. -
The Nueva Anna and Liebre, 6 Wheaton, 193.
27. A capture of Spanish property, in violation of our neutrality, by a
vessel built, armed, equipped, and owned in the United States, is
illegal, and the property, if brought within our territorial limits,
will be restored to the original owner.
La Concepcion, 6 Wheaton, 235.
28. It is firmly settled that if captures are made by vessels which have
violated our neutrality acts, the property may be restored, if
brought within our territory.
The Gran Para, 7 Wheaton, 471.
30 - CAPTURE AND PRIZE.
29. A vessel armed and manned in one of our ports, and sailing thence
to a belligerent port, with the intent thence to depart on a cruise
with the crew and armament obtained here, and so departing
and capturing belligerent property, violates our neutrality laws,
and her prizes coming within our jurisdiction will be restored. Ib
30. A bona-fide termination of the cruise for which the illegal armament
was here obtained, puts an end to the disability growing out of
the violation of our neutrality laws, which does not attach indefi-
nitely, but a colorable termination has no such effect. Ib
31. Whoever sets up a title under a condemnation is bound to show
that the court had jurisdiction of the cause; and that the
sentence has been rightly pronounced upon the application of
parties competent to ask it. For this purpose, it is necessary to
show who are the captors, and how the court has acquired
authority to decide the cause. {
The Nereyda, 8 Wheaton, 108, [168.]
32. In the ordinary cases of belligerent capture, no difficulty arises on
this subject, for the courts of the captors have general juris-
diction of prize, and their adjudication is conclusive upon the
proprietary interest. But where, as in the present case, the
capture is made by captors acting under the commission of a
foreign country, such capture gives them a right which no other
nation, neutral to them, has authority to impugn, unless for the
purpose of vindicating its own violated neutrality. The courts
of another nation, whether an ally or a co-belligerent only, can
acquire no general right to entertain cognizance of the cause,
unless by the consent or upon the voluntary submission of the
Captors. -
Ib.
33. As to right to impugn capture, where the capturing vessel is
equipped in our waters, in violation of neutrality, see
The Fanny, 9 Wheaton, 668.
34. Neither the President nor any military officer can establish a court
in a conquered country and authorize it to decide upon the
rights of the United States or of individuals in prize causes, or
to administer the law of nations.
- Jecker vs. Montgomery, 13 Howard, 498.
35. Though it is the duty of the captor, under the law of nations,
affirmed by the act of Congress, (R. S., § 4615,) to send in captured
property for adjudication by a court of his own country having
competent jurisdiction, yet he may be excused by imperative cir-
cumstances for making a sale of such property and afterward
seasonably subjecting the proceeds to the jurisdiction of a proper
court of prize. -
Ib.
CAPTURE AND PRIZE. 31
36.
37.
38.
39.
40.
41.
42.
The property of a commercial house, established in the enemy's
country, is subject to seizure and condemnation as prize, though
some of the partners may have a neutral domicile. -
. . The Cheshire, 3 Wallace, 231.
A voyage from a neutral port to a belligerent port is one and the
same voyage, whether the destination be ulterior or direct, and
whether with or without the interposition of one or more inter-
mediate ports; and whether to be performed by one vessel, or by
several employed in the same transaction and in the accomplish-
ment of the same purpose.
The Bermuda, 3 Wallace, 514,
Destination alone justifies seizure and condemnation of ship and
cargo in voyage to ports under blockade; and such destination
justifies equally seizure of contraband in voyage to ports not
under blockade; but in the last case, ship and cargo not contra-
band are free from seizure, except in case of fraud or bad faith.
- Ib.
Mere sailing for a blockaded port is not an offense; but where the
vessel has a knowledge of the blockade, and sails for the block-
aded port with the intention of violating it, she is clearly liable
to capture.
The Admiral, 3 Wallace, 604.
Domicile in the law of prize becomes an important consideration,
because every person is to be considered in such proceedings as
belonging to that country where he has his domicile, whatever
may be his native or adopted country. (See Domicile.)
The William Bagaley, 5 Wallace, 377, [408.]
If a ship or cargo is enemy property, or if either be otherwise liable
to condemnation, the circumstance that the vessel at the time of
the capture was in neutral waters would not, by itself, avail the
claimants in a prize-court. It might constitute a ground of claim
by the neutral power, whose territories had suffered trespass, for
apology or indemnity. But neither an enemy nor a neutral act-
ing the part of an enemy can demand restitution of captured
property On the Sole ground of capture in neutral waters.
The Sir William Peel, 5 Wallace, 517.
The Adela, 6 Wallace, 266.
A bona-fide purchase for a commercial purpose by a neutral, in his
own home port, of a ship of war of a belligerent that had fled to
Such port in order to escape from enemy vessels in pursuit, but
which was bona fide dismantled prior to the sale, and afterward
fitted up for the merchant service, does not pass a title above the
right of capture by the other belligerent. -
- The Georgia, 7 Wallace, 32.
32
CAPTURE AND PRIZE.
43.
44.
45.
46.
47.
48.
A Spanish-owned vessel on her way from New York to Havana,
being in distress, put, by leave of the admiral commanding the
squadron, into Port Royal, S. C., then in rebellion, and blockaded
by a Government fleet, and was there seized as a prize of war and
used by the Government. She was afterward condemned as
prize, but ordered to be restored. She never was restored, dam-
ages for her seizure, detention, and value being awarded : Held
that clearly she was not prize of war, or subject of capture; and
that her owners were entitled to fair indemnity, although it might
be well doubted whether the case was not more properly a sub-
ject for diplomatic adjustment than for determination by the
COUlrt.S.
The Nuestra Señora de Regla, 17 Wallace, 30.
A special order of the sovereign, though contrary to the law of
nations, justifies the captors in all tribunals of prize. It is quite
another question whether a neutral tribunal of prize would lend
its aid to enforce such captures, though, perhaps, in the strictness
of national law it would be bound to abstain from all obstruction
of the captors. *
Maisonnaire vs. Keating, 2 Gallison, 325 [335.]
Persistent misrepresentation by the claimant of the character and
destination of the voyage of the captured vessel is sufficient cause
for condemnation of the vessel and cargo.
The Revere, 2 Sprague, 107.
Prize-courts are subject to the instructions of their own sovereign.
In the absence of such instructions their jurisdiction and rules of
decision are to be ascertained by reference to the known powers
of such tribunals, and the principles by which they are governed
under the public law and the practice of nations.
The Amy Warwick, 2 Sprague, 123.
The proceedings of a prize-court of the so-called Confederate States
are of no validity here, and a condemnation and sale by such a
court do not convey any title to the purchaser, or confer upon him
any right to give a title to others.
The Lilla, 2 Sprague, 177.
A consul, particularly in an enemy’s country, has no authority by
virtue of his office to grant a license or permit which will have
the effect of exempting a vessel of the enemy from capture and
confiscation. & -
Rogers vs. The Amado, 1 Newberry, Adm., 400.
CENTENNIAL EXHIBITION.—CITIZENS. 33
CºNTENNIAL EXHIBITHON.
1. The President has the power to fill vacancies in the Centennial Com-
mission created by act of 3d March, 1871, (16 Stat., 470,) hap-
pening after 3d March, 1872, upon nomination by the governors
of the States and Territories respectively.
Vacancies of Commissioners, 14 Op., 48, Bristow, acting, (1872.)
CENTRALL AMEI ERCA.
1. There is nothing in the convention between the United States and
Great Britain of 19th April, 1850, (Pub. Trs., 322,) which forbids
either of the contracting parties to intervene, if either of them
sees fit, by alliances, influence, or even by arms, in the affairs of
Central America. -
The Clayton-Bulwer treaty, 8 Op., 436, Cushing, (1853.)
CERTIFYING INWOHCFES.
See Consular Officers.
(CERTIFYHNG OFFICERS.
1. Heads of Departments or officers of the Government entitled to cer-
tify, cannot certify by delegation, unless specially authorized so
to do by act of Congress. -
Certification by delegation, 7 Op., 594, Cushing, (1855.)
CHARGE D’AFFAIREs.
See Compensation.
Diplomatic Officers.
Privilege from arrest.
(CITIZENS,
1. Obligations of the Government toward its citizens domiciled in for-
eign countries, who apparently.have no intention to return, and
who do not contribute to its support, considered; and likewise
what should be regarded as evidence of the absence of an intent
to return in such cases.
Amther's case, 9 Op., 62, Black, (1857.)
3
34.
CITIZENSHIP.
(CHTHZEENSHIHP's
See Expatriation.
Pardon.
Passport8.
Under the second article of the treaty of 1794 with Great Britain,
(Pub. Trs., 269,) a British subject may have elected to become
a citizen of the United States, by remaining therein, without hav-
ing declared his intention to continue to be a British subject, but
did not become ipso facto a citizen of the United States. He could
do so only by becoming naturalized in accordance with section 2
of the act of January 29, 1795. (1 Stat., 414.) -
Porlier's case, 5 Op., 716, Wirt, Appendia, (1819.)
In regard to the protection of our citizens in their rights at home and
abroad, we have in the United States no law which divides them
into classes, or makes any difference whatever between them.
Christian Ernst’s case, 9 Op., 356, Black, (1859.)
The theory that a naturalized citizen is liable to be divested of his
acquired citizenship and allegiance if found within the power of
his native sovereign, though he may claim the protection of his
adopted country everywhere except in the country of his birth,
is without any foundation, except the dogma which denies the
right of expatriation without the consent of one's native country.
Ib.
A naturalized citizen who returns to his native country is liable,
like any other person, to be arrested for a debt or a crime, but he
cannot rightfully be punished for the non-performance of a duty
which is supposed to grow out of his abjured allegiance. An
arrest of a former subject, who has become naturalized in the
United States, cannot be justified on the ground that he emi-
grated contrary to the laws of his original country.
Ib.
A free white person born in this country, of foreign parents, is a
citizen of the United States.
Citizenship, 9 Op., 373, Black, (1859.)
. A person disfranchised as a citizen by conviction for crime under the
laws of the United States can be restored to his rights as Such
by a free and full pardon from the President, and such pardon
may be granted, after he has suffered the other penalties incident
to his conviction, as well as before.
Effect of pardon, 9 Op., 478, Black, (1860.)
. A woman born in this country, of American parents, married a Spanish
subject residing here, but who was never naturalized, and with
CITIZENSHIP. 35
her husband and his child, of three years of age, also born in this
country, removed to Spain, where she lived till her husband's
death: Held, that the removal of the lady and her daughter to
Spain, and their residence there, under the circumstances, were
not evidence of an attempt on their part to expatriate themselves,
and that they were still American citizens.
Case of Mrs. Preto and daughter, 10 Op., 321, Bates, (1862.)
8. A child born in the United States, of alien parents who have never
been naturalized, is, by the fact of birth, a native-born citizen
of the United States, and entitled to all the rights and privileges
of citizenship. &
Children born of aliens, 10 Op., 328, Bates, (1862.)
9. Children born abroad of aliens, who subsequently emigrated to this
10.
11.
13.
14.
country with their families, and were naturalized here during the
minority of their children, are citizens of the United States.
--- - Children of aliens, 10 Op., 329, Bates, (1862)
Children born here of alien subjects, who have declared their inten-
tion of becoming citizens, are citizens of the United States under
the act of 14 April, 1802. (2 Stat., 155; R. S. § 2172.)
h Ib.
Madame B. was born in France. Her father, at the time of her
birth, was a citizen of the United States. She married in France
a French citizen, and continued, after the death of her husband,
to reside in the country of her nativity: Eield, that she is a citi-
Zen of France and not of the United States.
Case of Madame Berthemy, 12 Op., 7, Stanbery, (1866.)
A question as to status or citizenship, arising in the United States, is
determinable by our own law, or, if it arose on the high seas, or
anywhere out of the jurisdiction or operation of British law, it
would be a question either under our own law or the public law,
according to the circumstances under which the right was asserted
or demanded. , ,
- Warren's case, 12 Op., 319, Stanbery, (1867.)
A person born in Ireland, but naturalized in the United States, is
not entitled, when arraigned in a British court for treason-felony,
to a jury de medietate. I
b.
Children born abroad whose fathers were, at the time of their birth,
citizens of the United States, and had at some time resided
therein, are American citizens, under the provisions of the act
of 1855, (10 Stat., 604; R. S., § 1993,) and are entitled to all the
privileges of citizenship which it is in the power of the United
States Government to Confer.
Cage of five residents in Curaç0a, 13 Op., 89, Hoar, (1869.)
36
CITIZENSHIP.
15.
16.
17.
18.
19.
20.
21.
But if, by the laws of the country of their birth, such children are
subjects of its government, it is not competent to the United
States, by legislation, to interfere with that relation while they
continue within the territory of that country, or to change the
relation to other foreign nations which, by reason of their place
of birth, may at any time exist. Passports may be refused under
Such circumstances.
- Ib.
A woman born in the United States, but married to a citizen of
France and domiciled there, is not “a citizen of the United States
residing abroad,” within the meaning of those words in section
116 of the act of 1864, (13 Stat., 281, repealed,) and section 13
of the amendatory act of 1867, (14 Stat., 477, repealed.) r
Cage of Madame Berthemy, 13 Op., 128, Hoar, (1869.)
All persons who were citizens of Texas at the date of annexation,
viz, December 29, 1845, became citizens of the United States by
virtue of the collective naturalization effected by the act of that
date. Citizens of Texas thus adopted into the citizenship of the
United States classified and described.
Citizens of Texas, 13 Op., 397, Akerman, (1871.)
Children born abroad of persons once citizens of the United States,
but who have become citizens or subjects of a foreign power, are
not citizens of the United States, nor, as such, entitled to 1ts
protection.
Reply to President's questions, 14 Op., 295, Williams, (1873.)
A native-born citizen of the United States who has been naturalized
in a foreign country, and thus become a citizen or subject thereof,
is to be regarded as an alien; and he cannot re-acquire American
nationality, except in conformity to the laws of the United States
providing for the admission of aliens to citizenship therein. lb
The authorities upon the construction of section 2 of act of 1855 (10
Stat., 604; R. S., § 1994) reviewed, and the following conclu-
sion deduced therefrom, viz: That any free white woman, not
an alien enemy, who is married to a citizen of the United
States, is, by reason of her marriage, to be deemed a citi-
zen of the United States, irrespective of the time or place of the
marriage or the residence of the parties.
Effect of marriage, 14 Op., 402, Williams, (1874.)
Held, accordingly, that an alien woman who has intermarried with a
citizen of the United States residing abroad, the marriage having
been solemnized abroad, and the parties after the marriage con-
tinuing to reside abroad, is to be regarded as a citizen of the
United States, within the meaning of Said act, though she may
never have resided in the United States. Ib
CITIZENSHIP. 37
22. A Prussian subject by birth emigrated to the United States in 1848,
became naturalized in 1854, and in the following year had a son
born in Saint Louis, Missouri. Four years after the birth of his
son he returned to Germany with his family, including this infant
child, and became domiciled at Wiesbaden, in Nassau, where he
has continuously resided. In 1866 Nassau became incorporated
into the North-German Confederation. When the son reached
the age of twenty years he was called upon by the German gov-
ernment to report for military duty. Thereupon the intervention
of the legation of the United States was invoked, on the ground
that the son was a native American citizen.
Article 4 of the naturalization treaty of 1868 between Germany
and the United States (Pub. Trs., 576) provides that “if a Ger-
man, naturalized in America, renews his residence in North
Germany without the intent to return to America, he shall be held
to have renounced his naturalization in the United States. * * *
The intent not to return may be held to exist when the person
naturalized in the one country resides more than two years in the
other country.”
Under this treaty, and according to the American rule declared
in section 1999 of the Revised Statutes, the father renounced his
naturalization in America and became a German subject. By
virtue of the German laws, his son, being a minor, also acquired
German nationality. Having, at the same time, an American na-
tionality by birth, he thus had a double nationality.
Steinkawler's case—Op., Pierrepont, (June 26, 1875.)
23. The son, being domiciled with his father, and being, as a minor, Sub-
ject to him, according to both German and American law, and
receiving German protection, and declining to give any assurance
of intention to return to and reside in the United States, cannot
invoke the aid of the Government of the United States.
Ib.
24. But when he reaches the age of twenty-one years, he may elect
Whether he will return to and take the nationality of his birth,
with its duties and privileges, or retain the nationality acquired
by the act of his father. No act of his father can have the effect
to deprive him of his nationality by birth.
Ib.
25. Under the act of 1802, (2 Stat., 153; R. S., § 2172,) a minor child
of a father duly naturalized became a citizen, though not then
Within the United States, provided she was a resident therein
at the time of the passage of this law.
Campbell vs. Gordon, 6 Cranch, 176, [183.]
38 CITIZENSHIP.
26. A woman, residing with her father, a citizen of South Carolina,
when that city was captured by the British forces in May, 1780,
continued so to reside until 1781, when she was married to a British
officer, with whom she went to England in 1782, and there re-
mained until her death, in 1801; she left five children born in
IEngland. Held, first. That the capture of Charleston did not
permanently change the allegiance or the national character of
the inhabitants. Second. That by her marriage with an alien she
did not cease to be a citizen of South Carolina. Third. That
her withdrawal with her husband, and her permanent adher-
ence to the side of the enemies of the state, down to and
at the time of the treaty of peace of 1783, operated as a virtual
dissolution of her allegiance, and that her coverture did not dis-
able her from making this election.
Shanks vs. Dupont, 3 Peters, 242.
27. An American citizen may enter either the land or naval service of
a foreign government without divesting himself thereby of his
rights of citizenship.
The Santissima Trinidad, 1 Brockenbrough, 478.
28. A person born abroad, on board of an American vessel, of parents
who are citizens of the United States, and who are, at the time,
in the foreign country, not with the design of removing thither,
but only having touched there in the Course of a voyage which
the father has made, as captain of the vessel, is to be regarded
as a citizen of the United States.
United States vs. Gordon, 5 Blatchford, 18.
29. By article 3 of the convention with Great Britain of 1818, (Pub.
Trs., 297,) it was agreed that the Oregon territory should “be
free and open to the vessels, citizens, and subjects of the two
powers;” which convention was continued in force until the con-
vention of 1846. (Pub. Trs., 320.) Held, in reference to a question
of nationality, that, during the period of such joint occupation,
the country, as to British subjects therein, was British soil, and
subject to the jurisdiction of the King of Great Britain; but, as
to citizens of the United States, it was American soil, and Sub-
ject to the jurisdiction of the United States.
McKay vs. Campbell, 2 Sawyer, 119.
30. Held, also, that a child born in such territory in 1823, of British
subjects, was born in the allegiance of the King of Great Britain,
and not in that of the United States. Ib
CIVIL WAR. 39.
{DHWHIL WAR,
See Belligerents.
Capture and Prize.
Comiraband.
Neutrality.
War.
1. The conquest of a country, or portion of a country, by a public enemy,
entitles such enemy to the sovereignty, and gives him civil do-
minion as long as he retains his military possession. Inhabitants,
and strangers who go there, during the occupation of the enemy,
must take the law from him as the ruler de facto, and not from
the government de jure which has been expelled.
The Georgiana and Lizzie Thompson, 9 Op., 140, Black, (1858.)
2. A revolutionary party, like a foreign belligerent power, is supreme
over the country it conquers, as far and as long as its arms can
carry and maintain it; and when the former government resumes
its possession of the territory it cannot call the citizens or subjects
of a third nation to account for obeying the authority which was
temporarily Supreme.
Ib.
3. Although it has been doubted whether a mere body of rebellious men
can claim all the rights of a separate power on the high seas, with-
out absolute or qualified recognition fromforeign governments,there
is no authority for a doubt that the parties to a civil war have
the right to conduct it with all the incidents of lawful war within
the territory to which they both belong.
Ib.
4. When, during the existence of a civil war in Peru, American vessels
found a port of that country and points on its coast where guano
is deposited, in the possession of one of the parties to the contest,
and procured under its authority and jurisdiction clearances and
licenses at the custom-house to load with guano, they were guilty
of nothing (having acted fairly in pursuance of the license) for
which the other party to the civil war could lawfully punish or
molest them afterward.
Ib.
5. It is not intended to say that belligerent rights may not be superadded
to those of sovereignty. But admitting a sovereign, who is en-
deavoring to reduce his revolted subjects to obedience, to possess
both sovereign and belligerent rights, and to be capable of acting
in either character, the manner in which he acts must determine
the character of the act; i. e., whether it is an exercise of bel-
ligerent rights or exclusively of his sovereign power.
Rose vs. Himely, 4 Cranch, 241, [272.]
40 | CIVIL waR.
6. When a civil war rages in a foreign nation, one part of which sepa-
rates itself from the old established government and erects itself
into a distinct government, the courts of this country must view
such newly-constituted government as it is viewed by the legis-
lative and executive departments of the Government of the United
States.
United States v3. Palmer, 3 Wheaton, 610.
7. If the government remains neutral, but recognizes the existence of
a civil war, the courts of the country cannot consider as crim-
inal those acts of hostility which war authorizes and which the
new government may direct against its enemy.
- Ib.
8. The same testimony which would be sufficient to prove that a vessel
or person is in the service of an acknowledged state, is admissi-
ble to prove that they are in the service of such newly-erected
government. Its seal cannot be allowed to prove itself, but may
be proved by such testimony as the nature of the case admits;
and the fact that a vessel or person is in the service of such gov-
ernment may be established otherwise, should it be impracticable
to prove the Seal.
l Ib.
9. The Government of the United States having recognized the exist-
ence of a civil war between Spain and her colonies, our courts
are bound to recognize as lawful those acts which war authorizes
and the new governments in South America may direct. Cap-
tures made under their commissions must be treated by us like
other captures.
The Divina Pastora, 4 Wheaton, 52.
10. The seal to a commission issued by a new government not acknowl-
edged by the Government of the United. States cannot be per-
mitted to prove itself; but the fact that the vessel cruising under
such commission is employed by such government may be estab-
lished by other evidence, without proving the seal. .
The Estrella, 4 Wheaton, 298.
11. A capture of a Spanish vessel and cargo, made by a privateer com-
missioned by the province of Carthagena while it had an organ-
ized government and was at war with Spain, cannot be interfered
with by the courts of the United States.
• The Nuestra Señora de la Caridad, 4 Wheaton, 497.
12. The Government of the United States not having acknowledged the
existence of any Mexican republic or state at war with Spain, the
Supreme Court could not consider as legal any acts done under
the flag and commission of such republic or state. -
The Nºueva Anna and Liebre, 6 Wheaton, 193.
CLAIMS. 41
13. Though the independence of Buenos Ayres has not been acknowl-
edged by the United States, we have recognized the existence of
a state of civil war between Spain and its colonies, and each
party to that war is respected by us in its exercise of all belliger-
ent rights, including the right of capture.
The Santissima Trinidad, 7 Wheaton, 283, [337.]
14. To create the right of blockade and other belligerent rights, as
against neutrals, it is not necessary that the party claiming them
should be at war with a separate and independent power; the
parties to a civil War are in the same predicament as two nations
who engage in a contest and have recourse to arms.
Prize Cases, 2 Black, 635.
15. A state of actual war may exist without any formal declaration of
it by either party; and this is true of both a civil and a foreign
Walſ.
Ib.
16. A civil war exists, and may be prosecuted on the same footing as if
those opposing the Government were foreign invaders, whenever
the regular course of justice is interrupted by revolt, rebellion, or
insurrection, so that the courts cannot be kept open. .
Ib.
CFLAMMS.
1. Under the provisions of the convention with France of 1803, (Pub.
Trs:, 236,) the United States are in no event and on no principles
bound to protect demands for freight where individuals have
transported articles for the French government, or for its citizens,
since they are within no provision of the convention. |
- Claims under treaty with France, 1 Op., 136, Lincoln, (1803.)
2. An invasion of a custom-house in Texas by citizens of Arkansas, and
the violent abstraction therefrom of property, under a claim of
title, constitute no ground of claim against the United States.
Claims of Texas for invasion, 4 Op., 332, Nelson, (1844.)
3. This Government is not responsible for the acts of private tres.
passers; they must be punished in the tribunals established by
law, or be prosecuted for the recovery or value of the goods,
either in the State or Federal courts.
Ib.
4. Although it may have been a rule of an Executive Department to
construe an act of Congress relating to claims in a particular
manner, yet, when Congress has afterward expressed an opinion
in conflict with that of the Department, such action of Congress
42 CLAIMS,
has been considered as in the nature of a legislative interpreta-
tion, which becoming courtesy to the legislative department re-
Quires the executive to observe. -
Claim of representative of John M. Galt, 5 Op., 83, [84,] Johnson, (1849.)
5. The decision of the head of a Department, directing payment of a
particular claim, is binding upon all the subordinate officers by
whom the same is to be audited and passed.
EI. Lasell’s case, 5 Op., 87, Johnson, (1849.)-
6. This doctrine has been recognized from the organization of the Gov-
ernment, is necessary to its proper operations, and is warranted
by law. -
Ib.
7. In general, the Government, which is always to be presumed to be
ready and willing to discharge its obligations, pays no interest;
yet, from considerations of State policy, it has sometimes, as in
the case of claims under the act of 1814, (6 Stat., 139,) allowed it.
Claim of Henry de la Francia, 5 Op., 105, Johnson, (1849.)
8. EIenry de la Francia, original claimant, being dead at the passage of
the supplementary act of 1848, (9 Stat., 736,) authorizing the
Secretary of State to settle his claim for advances, &c., and as
the claim was assets belonging to his estate, the avails of which
were to be accounted for as such, the amount awarded should be
paid only to an administrator duly appointed and authorized to
receipt for the estate. g º
Claim of Henry de la Francia, 5 Op., 135, Johnson, (1849.)
9. But, as it appears that a competent court has decided Joseph de la
Francia to be the sole distributee entitled to the amount from the
administrators, the Secretary is advised to take a receipt from him
or his attorney also.
Ib.
10. Under a power of attorney executed by Joseph de la Francia to
James Bowie, the latter had authority to substitute Isaac Thomas
in his stead; but Thomas could not legally substitute William
Cost Johnson in his stead.
Ib., 137.
11. The receipt and acquittance in blank, purporting to have been signed
by said Thomas, if authentic, gives authority so to fill it up as to
make it a full discharge and acquittance of all title to the sum
awarded to said Joseph de la Franeia by the Secretary of State.
Ib.
12. Although interest, as a general rule, will not be paid upon claims
against the Government, there are instances in which the Gov-
ernment, from certain considerations of policy, allows it.
Claims of heirs of Thomas Ewel, 5 Op., 138, Johnson, (1849.)
CLAIMS. 43.
13.
14.
15.
16.
17.
18.
19.
20,
21.
Cases in which interest on claims should be allowed.
Claity of executor of George Galpin, 5 Op., 105, [227,399,1 Johnson, (1850.)
Where money is due from the Government to the heirs of one de-
ceased, and there is a dispute as to the legal descent, the latter
Question should be decided by the court rather than by the exec-
utive officers.
Case of Torrence and others, 5 Op., 670, Crittenden, (1853.)
The Secretary of State may re-imburse certain officers of Topograph-
ical Engineers for personal expenses incurred in the execution of
the sixth article of the treaty of 1842, (Pub. Trs., 319,) and in re-
constructing the maps showing the boundaries under that treaty.
Claim of Colonel Graham et al., 5 Op., 671, Crittenden, (1853.)
The Secretary of State has no power to appoint a commission or
board to determine how much money a foreign prince shall pay
to counsel in the United States for professional services.
Seeley's case, 6 Op., 386, Cushing, (1854.)
The extraordinary expenses of a party, incurred in living at Saint
Mary's, whither he retired after the destruction of his property
in Florida, are too remotely consequential to be the proper sub-
ject of damages under article 9 of the treaty of 1819 between the
United States and Spain. (Pub. Trs., 715.)
Case of a Spanish claimant, 6 Op., 530, Cushing, (1854.)
The United States is not responsible in damages for moneys ille-
gally received by consuls, or for any act of malfeasance by them
in Office.
The bark Serene, 6 Op., 617, Cushing, (1854.)
Responsibility of Government for injuries by public officers dis-
cussed.
Neither the State of California nor the United States is responsi-
ble for loss to the owners of a Peruvian bark lost by the careless-
ness of one of the associated pilots appointed under the laws of
California. -
The bark Eliza, and pilot, 7 Op., 229, [237, 238, Cushing, (1855.)
As a general rule the United States does not payinterest on any debts
of the Government. The only exceptions are where the Govern-
ment stipulates to pay interest, as in public loans, and where in-
terest is given by act of Congress expressly, either by the name
of interest or by that of damages.
Colmesnil's case, 7 Op., 523, Cushing, (1855.)
Acts of Congress authorizing the settlement of claims according to
“equity” or “equity and justice” do not give interest ; for, as
between private individuals, there is no material difference in
this respect between equity and law, and that expression does
not change the result as regards the Government.
Ib.
CLAIMS.
22
2
3
24.
25.
26.
27.
28.
29.
30.
. Review of former opinions on the same subject.
Ib.
. The Secretary of State must decide, according to his own discretion,
whether he will press the claim of a citizen of the United States
upon the attention of a foreign government.
Perking claim, 9 Op., 338, Black, (1859.)
It is within the power of the head of an Executive Department to
allow a claim which has been rejected by one of his predecessors,
without new evidence. But the decisions of the head of a De-
partment ought only to be reversed on clear evidence of mistake
Or Wrong.
Claim of Belding's heirs, 10 Op., 56, Bates, (1861.)
The convention of 1864 with the United States of Colombia (Pub.
Trs., 158) confers on the commission thereby created author-
ity to decide the cases which had been presented within the time
specified, and which had not been decided by the commission
appointed under the convention of 1857, (Pub. Trs., 564,) and
therefore conferred jurisdiction to determine what cases had
been presented to, but not decided by, the old commission.
Convention with United States of Colombia, 11 Op., 402, Speed, (1865.)
The rule of international law is well established that a foreigner,
who resides in the country of a belligerent, can claim no indem-
nity for losses of property occasioned by acts of war of the other
belligerent.
Case of Wheelwright and others, 12 Op., 21, Stanbery, (1866.)
American merchants, domiciled for commercial purposes at Valpa-
raiso, cannot sustain a claim for indemnity against Spain or Chili
for losses of merchandise caused by the bombardment of Valpa-
raiso by the Spanish fleet in March, 1866. Ib
Where the Postmaster-General is authorized and required by act of
Congress to adjust a particular claim, nothing but a new author-
ity, emanating from Congress, will enable one of his successors to
open his adjustment upon the ground that he adopted an erro-
neous basis of settlement.
Chorpenning's case, 12 Op., 355, Stanbery, (1868.)
The fact that, since the settlement, the committees of the two
houses recommended, by reports, a different basis of settlement,
will not authorize a re-opening of the case.
Ib.
Where a claim was duly referred to the board of commissioners
constituted under the convention with New Granada, of 1857,
(Pub. Trs., 564,) and submitted to an umpire authorized by
that convention, who reported his award during the existence of
the board, and payment was suspended at the Treasury by re-
CLAIMS, 45
guest of the Secretary of State, and the case was afterward re-
ferred, without the claimant's consent, to the commission consti-
tuted under the convention of 1864 with the United States of
Colombia, (Pub. Trs., 158,) as the representative of the late
republic of New Granada: Held that by the submission of this
claim to the commission, in the manner stated, the claimant was
not divested of his rights against New Granada under the award
of the umpire aforesaid.
Claim of R. W. Gibbes, 13 Op., 19, Hoar, (1869.)
31. The award not having been vacated, opened, or set aside during the
life-time of the former commission, and the claimant having
done nothing since to waive his rights thereunder, it should be
treated by our Government as a valid and conclusive ascertain-
Iment of his claim against New Granada.
Ib.
32. But under section 7 of the act of 1861, (12 Stat., 145,) the claimant,
in order to receive payment at the Treasury of the amount
awarded to him, is required to produce a certificate of the board
Of commissioners in his favor.
Ib.
33. The rule that, before a citizen of a country is entitled to the aid of
his government in obtaining redress for wrongs done him by an-
other government, he must have sought redress in vain, through
the judicial tribunals of that other government, is inapplicable
where the offending government, by the acts of its proper organ,
relieves the injured party from the obligation of pursuing such
course. The passenger-tax of $2 per head, levied by the State of
Panama, under authority from New Granada, upon all vessels
embarking or disembarking passengers in that State, so far as it
affected citizens of the United States crossing the isthmus, is in
violation of the thirty-fifth article of the treaty of 1848. (Pub.
Trs., 558.)
4. Panama transit taa, 13 Op., 547, Akerman, (1871.)
34. The Government of Brazil is not responsible for damage resulting
to a citizen of the United States from the alleged corruption of a
municipal judge in that country, in authenticating and ratifying
the report of a board of surveyors upon a damaged vessel, though
the charge were established. \ 2
Case of the judge at Saint Catherines, Brazil, 13 Op., 553, Akerman, (1871.)
85. Whenever the law makes it the duty of an officer to examine, adjust,
and Settle claims against the Government, authority is impliedly
given to him to require such claims to be supported by the oaths
of witnesses where the facts necessary to establish them rest on
testimony.
Major Anderson's case, 14 Op., 419, William8, (1874.)
46
CLAIMS.
36.
37.
38.
39.
40.
41.
42.
43.
The act of 1871 (16 Stat., 412; R. S., § 184) assumes the existence
of authority in the heads of Departments and bureaus to require
oaths in cases of claims against the Government, and provides
them with a very efficient means of enforcing it.
# Iö,
Under the treaty with Spain, of 1819, (Pub. Trs, 712,) the com-
missioners had power to decide conclusively upon the amount
and validity of claims, but not upon the conflicting rights of par-
ties to the sums awarded by them.
Comegy3 vs. Vasse, 1 Peters, 193.
The right to indemnity for an unjust capture passes to the under-
writer by an abandonment.
- Ib.
Under the act of Congress constituting a board of commissioners
to pass on claims, provided for by the treaty with France, of 1831,
(Pub. Trs., 245,) the decision of the board between conflicting
claimants is not conclusive, and the question of their respective
titles is fully open to be adjudicated by the courts.
Frevall vs. Bache, 14 Peters, 95.
The validity of assignments of claims, such as those presented
before commissioners under treaty conventions, has been recog-
nized by the various boards of commissioners and the courts of
justice for many years.
Judson vs. Corcoran, 17 Howard, 614.
An act of Congress referring a claim against the Government to an
officer of one of the Executive Departments to examine and ad-
just, does not, even though the claimant and Government act un-
der the statute and the account is examined and adjusted, make
the case one of arbitrament and award, in the technical sense of
these words, so as to bind either party as by submission to award.
Hence a subsequent act repealing the one making the reference
(the claim not having been yet paid) impairs no right, and is
valid. - -
Gordon vs. United States, 7 Wallace, 188.
Semble, that the court does not sanction the allowance of interest on
claims against the Government.
Iö.
By the proceeding known as a “petition of right,” the British gov-
ernment accords to citizens of the United States the right to pros-
ecute claims against it.
Accordingly, British subjects, if otherwise entitled, may re-
cover, by process in our Court of Claims, the proceeds of cap-
tured and abandoned property, a privilege granted only to the
CLAIMS. 47
citizens or subjects of such foreign governments as accord to our
citizens the right to prosecute claims against such governments
in their courts.
United States vs. O'Keefe, 11 Wallace, 178.
Carlisle vs. United States, 16 Wallace, 148.
44. A commission constituted in pursuance of treaty provisions to set-
tle and adjust disputed claims is for that purpose a quasi court,
and an agreement to present and prosecute a claim at a fixed
compensation, or for a reasonable percentage of the amount re-
covered, is not illegal, immoral, or against public policy.
Wright vs. Tebbitts, 91 U. S. R., S. C., 252.
45. A citizen of one nation, wronged by the conduct of another nation,
must seek redress through his own government. His sovereign
must assume the responsibility of presenting his claim, or it need
not be considered.
United States vs. Diekelman, 92 U. S. R., S. C., 520, [524. T
46. A resident alien who takes up a residence in a foreign place and is
injured in his property from belligerent acts committed by a for-
eign nation, must be considered to abide the chances of the coun-
try in which he chooses to reside. His claim, if any, is a personal
one against the government of the country.
- Perrin's case, 4 C. Cls., 543.
Affirmed on other grounds. - e
- Perrin's case, 12 Wallace, 315.
47. Under the laws of Prussia the fiscus represents the state, and any
subject may sue the fiscus on contract before a court having like
jurisdiction in actions between individuals. Judgment may be
taken in such suit and execution issue. No discrimination is made
against foreigners, save that they are required to give security
for costs. Held, that an alien, a native of Hanover, which coun-
try had been incorporated into Prussia, was entitled to sue in the
Court of Claims within the provisions of the act of July 27, 1868,
(15 Stat., 243,) which permitted the citizens or subjects of any gov-
ernment which accords to citizens of the United States the right
to prosecute such claims in her courts, to recover the proceeds of
captured or abandoned property.
Brown's case, 5 C. Cl3., 571.
48. The example of Prussia and other German states in subjecting the
government to suits at the instance of private persons led to the
establishment of the Court of Claims. Ib
49. The Belgian government, by its system of jurisprudence, holds the
government amenable before the courts as an ordinary debtor,
and accords to citizens of the United States the same right to
prosecute claims against it in its courts as is accorded to indi-
viduals as between themselves. A subject of Belgium may, there-
fore, maintain a suit in the Court of Claims.
De Give's case, 7 C. Cl3., 517,
48 CLERKS.
50. Italy accords to citizens of the United States the right to maintain
an action against that government in its courts. A subject of
Italy may, therefore, maintain an action in the Court of Claims.
Fichera's case, 9 C. Cls., 254.
51. The laws and precedents in Spain permit actions to be commenced
before its judicial tribunals against the state by aliens, as well
as subjects; judgments so rendered are inserted in the budget,
and so paid without legislative consideration; a subject of Spain
may, therefore, maintain an action in the Court of Claims.
Molina's case, 6 C. Cls., 269.
52. A resident alien owes like obedience to the laws of the country in
which he resides, whether municipal or military, as a citizen.
Where one resident in New Orleans transmits money across the
lines to an agent to buy cotton, no valid title is acquired.
Queyrouze's case, 7 C. Cls., 402.
53. By the laws of Switzerland a private citizen may maintain a suit
against the state in the federal tribunal, if the object of litigation
is of the value of 3,000 francs. This right, taken in connection
with the provisions of the treaty of November 25, 1850, (Pub. Trs.,
749,) securing to citizens of the United States liberty to pros-
ecute and defend their rights before courts of justice as native
citizens, permits a citizen of Switzerland to maintain an action
before the Court of Claims.
Lobsiger's case, 5 C. Cls., 687.
54. In France a French subject may sue the government for real and
personal property, and American citizens being accorded the
same privilege, subject to the giving of security, French subjects
may sue in the Court of Claims.
Rothschild's case, 6 C. Cls.,204.
To same effect. -
Dauphin's case, 6 C. Cls., 221.
(CELEPHERS,
1. The duties of the clerks in an Executive Department are assigned
to them by the head of the Department, except where they are
specifically designated in particular cases by statute ; and no
posterior claim to extra compensation can be founded on the
official acts done by a clerk, provided those acts constituted any
part of the lawful duties of the Department.
Stubbs’s case, 6 Op., 583, Cushing, (1854.)
2. Clerks in the Executive Departments are officers of the United States,
and required to take the oath prescribed by the act of 1862, (12
Stat., 502; R. S., § 1756.)
Oaths of Clerks in Departments, 12 Op., 521, Evarts, (1868.)
COLONIES-COMMANDING GENERAL. 49
6C OILONEEES.
See Civil War.
CQMHMMAN}}}{NG 65+BNFERAFL.
1. The Constitution does not prohibit the creation, by military authority,
of courts for the trial of civil causes during the civil war in con-
quered portions of the insurgent States. The establishment of
such courts was the exercise of the ordinary rights of conquest.
A court established by proclamation of the commanding general
in New Orleans, on the 1st of May, 1862, on the occupation of the
city by the Government forces, will, in the absence of proof to
the contrary, be presumed to have been authorized by the Presi-
dent.
Mechanics and Traders’ Bank vs. Union Bank, 22 Wallace, 276.
2, Whether certain articles are contraband depends upon circumstances,
and their character may be determined by the commanding gen-
eral.
United States vs. Diekelman, 92 U. S. R., S. C. 520, [527.1
3. Every court of the United States must derive its jurisdiction and
judicial authority from the Constitution or the laws of the United
States; and neither the President nor any military officer can
establish a court in a conquered country and authorize it to decide
upon the rights of the United States or of individuals in prize
cases, nor to administer the law of nations.
- Jecker vs. Montgomery, 13 Howard, 515.
4. The courts established or sanctioned in Mexico during the war, by the
commanders of the American forces, were nothing more than the
agents of the military power, to assist it in preserving order in
the conquered territory, and to protect the inhabitants in their
persons and property while it was occupied by the American
arms. They were subject to the military power, and their decis-
ions under its control, whenever the comraanding officer thought
proper to interfere. They were not courts of the United States,
and had no right to adjudicate upon a question of prize or no
prize; and the sentence of condemnation in the court at Mon-
terey is a nullity, and can have no effect upon the rights of any
party.
Ib.
5. It is unusual for military commanders to exercise the right to erect
courts; and nothing will be presumed in favor of tribunals so
established. ge
Snell w8, Faussatt, 1 Washington, 271.
4
50
COMMISSIONERS–COMPENSATION.
COMINIIISSIONERS.
See Diplomatic Officers.
International Commissioners.
Public Ministers.
CONHPENSATHON.
Extra compensation cannot be allowed an officer whose salary is
fixed by law for the discharge of a public service, but traveling
expenses may be allowed. :
Thompson's claim, 4 Op., 372 Mason, (1845.)
The rule applied to a bearer of dispatches.
Ib.
It is the duty of the Government to provide a way to make the
salary and expenses of a minister abroad good to him at the cap-
ital of his residence.
: Case of Mr. Wise, minister at Rio, 4 Op., 506, Mason, (1846.)
. If a minister be directed to draw on London for his salary and ex-
penses, and there shall be a loss on the sale of his bills, it is the
duty of the Government to make such loss good to him.
- Ib.
. An acting Secretary of an Executive Department is not entitled to
the salary provided for the incumbent whilst the office is filled
and the salary is received by an incumbent duly appointed and
confirmed.
Case of an Acting Secretary of State, 5 Op., 74, Toucey, (1849.)
If the duties of an office belong to an incumbent who receives the
salary affixed to it, another officer performing those duties is pro-
hibited from receiving therefor any compensation whatever with-
out a new, distinct, specific appropriation for the purpose.
- Ib.
. Since the act of 1842, (5 Stat., 525; R. S., $1764,) no officer whose
pay is fixed by law or regulation is entitled to any additional
pay, extra allowance, or compensation, in any form whatever, for
any other duty or service, unless the same shall be authorized by
law, and the appropriation therefor explicitly set forth that it is
for additional pay or extra compensation.
Ib.
. The salary of the American commissioner, appointed under the treaty
between the United States and Great Britain of 1853, (Pub. Trs.,
329,) commenced on his taking the oath of office, and he is en-
titled to the cost of transportation to and from London.
Case of British and American commissioners, 6 Op., 65, Cushing, (1853.)
COMPENSATION. 51
9. The duties of the clerks in an Executive Department are assigned to
them by the head of the Department, except where they are spe-
cifically designated in particular cases by statute ; and no poste-
rior claim to extra compensation can be founded on official acts
done by a clerk, provided those acts constituted any part of the
lawful duties of the Department.
Stubbs's case, 6 Op., 583, Cushing, (1854.)
10. The diplomatic and consular act of 1855 (10 Stat., 619, repealed)
simply regulated the compensation of ministers and consuls, and
did not require that they should be re-appointed. Under that
act consuls were entitled to pay during the time they remained
at their post of duty.
Compensation of officers, 9 Op., 89, Black, (1857.)
11. Under the act of 1856, (11 Stat., 52; R. S., § 1740,) a consul was
entitled to pay, not only for the time spent at the place of his
official duty, but, in addition, for the time occupied in awaiting
his instructions, in traveling to his post of duty, and in returning
home at the close of his service. -
Ib.
12. Under these laws each consul is entitled to be paid for his services
according to the law which was in force when those services were
rendered, without reference to the date of his commission.
Ib.
13. The provisions in sec. 8 of the act of 1856, (11 Stat., 55; R. S., § 1740,)
forbidding the allowance of compensation for the time occupied
in coming home by a consul who shall have resigned or been re-
called for malfeasance in office, does not apply to the case of a
consul who has resigned or been recalled without being guilty
of any misconduct. The penalty of having to come home at
his own expense is only to be inflicted upon the consul whose
misbehavior has obliged the Government to recall him, or who
resigns simply to escape a recall which he is conscious of deserv-
Ing.
tº.
Ib.
14. After a consideration of the various acts of Congress, held that
thereunder no officer of the Government having a salary fixed by
law or regulation, and none whose annual compensation exceeds
the sum of $2,500, can receive extra pay or additional compensa-
tion for any public service whatever, whether it be in the line of
his duty or outside of it; and that no officer of the Government
can receive the salary of more than one office. Watchmen and
messengers are excepted from the foregoing rules.
Reply to letter of Secretary of Interior, 9. Op., 123, Black, (1857.)
52 COMPENSATION.
15. The absence of a minister-resident from his post, with permission
of the President, is not an offense for which his salary, during
the time of the absence, is to be withheld from him. The act of
1856 (11 Stat., 55; R. S., § 1741) does not forbid an absence of
less than ten days without permission, or of more than that time
With leave of the President.
Seibel's case, 9 Op., 138, Black, (1858.)
16. A secretary of legation is lawfully authorized to act as chargé
d'affaires ad interim whenever he assumes the duties of that
office in a manner warranted by public law, diplomatic usage,
and the general instructions of the Department of State. When
legally authorized to act in that capacity, he is entitled, under
the act of 1856, (11 Stat., 56; R. S., § 1685,) to receive the pay
of chargé d'affaires. -
Case of a chargé d'affaires, 9 Op., 425, Black, (1860.)
17. A eonsul whose salary exceeds, $2,500 is entitled to be paid and
retain his fees as commissioner for taking depositions in an ad-
miralty proceeding in a United States district court, as the tak-
ing of the depositions was not a part of the duty of the consul as
consul.
Pickett's case, 9 Op., 496, Black, (1860.)
18. By a decision of the Supreme Court, (Converse vs. the United States,
21 Howard, 463,) a person holding two compatible offices or employ-
ments under the Government is not precluded from receiving the
salaries of both by anything in the general laws prohibiting
double compensation ; but the prohibition in those laws extends
to every case where the duties for which extra compensation is
claimed are performed without a regular appointment authorized
by law.
J. P. Brown's case, 9 Op., 507, Black, (1860.)
19. It is the appropriate duty of the disbursing clerk of the State De-
partment to take charge of and disburse the indemnity fund paid
under the convention of the United States with Great Britain, of
1853, (Pub. Trs., 328.) He is not entitled, therefore, to commis-
Sions on the fund for any services in keeping and disbursing the
Salil C. *
Stubbs's case, 10 Op., 31, Bates, (1861.)
20. A compensation for extra services, where no certain allowance is
fixed by law, cannot be paid by the head of a Department to an
officer of the Government to whose office is attached a fixed com-
pensation, (5 Stat., 525; R. S., §§ 1764, 1765.)
- Ib.
21. Money due to an employé of the Government cannot be attached,
|by the process of a State court, in the hands of the disbursing-
officer.
Clinton's case, 10 Op., 120, Bates, (1861.)
COMPENSATION. 53
22.
23.
25.
26.
27.
29.
30.
The salary of a person appointed marshal of the United States con-
Sular court at Shanghai begins from the time of his entering upon
Such duties as are preliminary to his departure for the field of his
Services, after taking the oath of office and giving the bond pre-
Scribed by law. :
Hughston’s case, 10 Op., 250, Bates, (1862.)
Opinions of Attorneys General and Supreme Court of the United .
States concerning extra compensation considered. No discretion
is left to the head of a Department to allow any officer who has a
fixed compensation any amount beyond his salary, unless the ser-
Vice is required by existing Haw, and the remuneration fixed by
law.
Whiting's case, 10 Op., 435, Bates, (1863.)
. The act of 1868 (15 Stat., 56) disallows the salary of a diplomatic or
Consular officer in all cases of absence where, in any one year, the
officer shall already have enjoyed absence, with salary, equal in
aggregate to sixty days of time. (See R. S., § 1742.)
Absence of diplomatic officer, 12 Op., 410, Browning, ad int., (1868.)
The compensation of vice-consuls and vice-commercial agents does
not stop during the absence of their principals.
Ib.
The fund appropriated by the act of 1871 (16 Stat., 495) for the ex-
penses of the Spanish Claims Commission may be paid to the
commissioners and advocate on the part of the United States,
from time to time, at the discretion of the President.
Pay of commissioners and advocate of Spanish Commission,
13 Op., 415, Akerman, (1871.)
A person holding two compatible offices or employments under the
Government is not precluded from receiving the salaries of both.
Browning's case, 12 Op., 459, Evarts, (1868.)
. The act of 1850 (9 Stat., 542) precludes an officer who may perform,
under an ad interim authority, the duties of another office in which
a vacancy exists, from receiving the compensation or salary pro-
vided for both offices.
Ib.
In such a case the ad-interim officer is not invested with a new office,
but he is merely required to perform new duties. - Ib
An officer who temporarily performs the duties of a vacant office,
under the provisions of the act of 1868, (15 Stat., 168; R. S.,
$177,) cannot be allowed, for the period during which he dis-
charges this service, any salary other than what is annexed to the
office held by him which would involve an increase of compensa-
tion.
Salary of ad-interim officer, 13 Op., 7, Hoar, (1862.)
54.
COMPENSATION.
31.
33.
34.
3
5
36.
37.
38.
The provision in section 3 of the act of 1868, (15 Stat., 168; R. S.,
§ 182,) which declares that “the officer so performing the duties
of the office temporarily Vacant shall not be entitled to extra com-
pensation therefor,” was designed to be general, and applies as
well to those vacancies which are supplied by operation of the
statute as to those which are filled by designation of the Pres-
ident.
Ib.
. Where a diplomatic officer, of a class named in the act of 1874, (18
Stat., 77,) temporarily absents himself for a period of not exceed,
ing ten days, the right to compensation during such period of
absence is not affected by that act, and such officer may be allowed
compensation for the period of his temporary absence.
Compensation during absence, 14 Op., 534, Williams, (1875.)
The United States have the right to apply moneys due to an officer
for pay and emoluments to extinguish a debt due from him to the
United States.
Gratiot vs. United States, 15 Peters, 336.
A compensation for extra Services, where no certain compensation
is fixed by law, cannot be allowed by the head of a Department
to any officer of the Government who has by law a fixed or cer-
tain compensation for his services in the office he holds. Nor can
it be allowed by a court or jury as a set-off in a suit brought by
the United States against an officer for public money in his hands.
Converse v8. United States, 21. Howard, 463.
. No allowance beyond his fixed compensation can be made except for
the performance of certain duties required by law to be performed,
for which the law grants a certain compensation to be paid, and
which have no connection with the duties of the office he holds.
Ib.
An agreement by the head of a Department to pay a clerk in his
Department for services rendered to the Government by labors
abroad, he still holding his place and drawing his pay as a clerk
in the Department, is void. e
Stansbury vs. United States, 8 Wallace, 35.
Every public officer is required to perform all duties which are
strictly official, although they may be required by laws passed
after he comes into office, and may be cumulative upon his origi-
mal duties, and although his compensation therefor be wholly
inadequate. *
Andrews vs. United States, 2 Story, 202.
Where an act of Congress fixes the compensation of an officer of
the Government, such compensation can neither be enlarged nor
diminished by any regulation or order of the President, or of a
Department, unless the power to make the same is given by act
of Congress. t
Goldsborough vs. United States, Taney’s Dec., 80.
CONGRESS—CONQUEST. 55
39. Where the salary of a purser in the Navy was fixed by law : Held
there was no power to increase the compensation by allowing
amounts by Way of commissions.
Ib.
40. Where commissioners were appointed to run the Mexican boundary-
line, held that the matter in which they were engaged related
directly to foreign affairs, and that they had no right to defray
their expenses by drafts drawn upon the Treasury.
Goodman's case, 1 C. Cls., 166.
41. A foreign minister is entitled to receive his salary at the actual
market-equivalent value in the money of the United States; in
the absence of a commercial value, the payments must be deemed
to have been made at the real or intrinsic value of the coin.
Clay's case, 8 C. Cls., 209.
CONGRESS.
See Resolutions of Congress
CONQUEST.
"See Civil War.
Fnemy Property. ,
Sovereignty.
1. An island conquered and occupied by the enemy is, for belligerent
and commercial purposes, his soil. The produce of that soil is
liable to condemnation while it belongs to the individual pro-
prietor of the soil which produced it, although he is a neutral.
Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch; 191.
2. By the conquest and military occupation of a portion of the territory
of the United States by a public enemy, that portion is to be
deemed a foreign country, so far as respects our revenue laws.
United States vs. Rice, 4 Wheaton, 246.
3. The usage of the world is, if a nation be not entirely subdued, to con-
sider the holding of a conquered territory as a mere military, oc-
cupation until its fate shall be determined at the treaty of peace.
If it be ceded by the treaty, the acquisition is confirmed, and the
ceded territory becomes a part of the nation to which it is an-
nexed, either on the terms stipulated in the treaty of cession, or
on such as its new master shall impose. On such a transfer of
territory it has never been held that the relations of the inhab-
itants with each other undergo any change. Their relations with
their former sovereign are dissolved, and new relations are
56 CONQUEST.
created between them and the government which has acquired
their territory. The same act which transfers their country trans-
fers the allegiance of those who remain in it; and the law, which
may be denominated political, is necessarily changed, although
that which regulates the intercourse and general conduct of in-
dividuals remains in force until altered by the newly-created
power of the state.
American Insurance Co. vs. Canter, 1 Peters, 542.
4. The laws, whether in writing or evidenced by the usage and customs
of the conquered or ceded country, continue in force until altered
by the new sovereign. -
Strother vs. Lucas, 12 Peters, 436.
5. The capture and occupation of Tampico by the arms of the United
States during the war with Mexico, though sufficient to cause it
to be regarded by other nations as part of our territory, did not
make it a part of the United States under our Constitution and
laws.
Fleming vs. Page, 9 Howard, 603.
6. California, or the port of San Francisco, had been conquered by the
arms of the United States as early as 1846. Shortly afterward,
the United States had military possession of all of Upper Cali-
fornia. Early in 1847, the President, as constitutional commander-
in-chief of the Army and Navy, authorized the military and naval
commander of our forces in California to exercise the belligerent
rights of a conqueror, and to form a civil government for the con-
Quered country, and to impose duties on imports and tonnage as
military contributions for the support of the government and of
the army which had the conquest in possession. # $ #
No one can doubt that these orders of the President, and the action
of our Army and Navy commander in conformity with them, were
according to the law of arms and the right of conquest, or that
they were operative until the ratification and exchange of a treaty
of peace. Such would be the case upon general principles in re-
spect to war and peace between nations. In this instance it is
recognized by the treaty itself.
Cross vs. Harrison, 16 Howard, 190.
7. When New Mexico was conquered by the United States, it was only
the allegiance of the people that was changed; their relation to
each other and their rights of property remained undisturbed.
Leitensdorfer et al. vs. Webb, 20 Howard, 176.
8. On a conquest by one nation of another, and the subsequent surren-
der of the soil and change of sovereignty, those of the former in-
CONQUEST. 57
habitants who do not remain and become citizens of the victo-
rious sovereign, but, on the contrary, adhere to their old alle-
giance and continue in the service of the vanquished sovereign,
deprive themselves of protection or security to their property, ex-
cept so far as it may be secured by treaty.
United States vs. Repentigny, 5 Wallace, 211.
9. Hence where, on such a conquest, a treaty provided that the former in-
habitants who wished to adhere in allegiance to their vanquished
sovereign might sell their property, provided they sold it to a
certain class of persons and within a time named, the property,
if not so sold, became abandoned to the conqueror.
Ib.
10. The conquering power has a right to displace the pre-existing au-
thority and to assume, to such extent as it may deem proper, the
exercise by itself of all powers and functions of government. It
may appoint all the necessary officers and clothe them with des-
ignated powers, larger or smaller, according to its pleasure. It
may prescribe the revenues to be paid, and apply them to its own
use or otherwise. It may do anything necessary to strengthen
itself and weaken the enemy. There is no limit to the powers
that may be exerted in such cases, save those which are found in
the laws and usages of war.
New Orleans vs. Steamship Company, 20 Wallace, 387, [394.]
11. The Constitution did not prohibit the creation by military authority
of courts for the trial of civil causes during the civil war in con-
quered portions of the insurgent States. The establishment of
such courts was the exercise of the ordinary rights of conquest.
Mechanics and Traders' Bank vs. Union Bank, 22 Wallace, 276.
12. A court established by proclamation of the commanding general in
New Orleans on the 1st of May, 1862, on the occupation of the
city by the Government forces, will, in the absence of proof to
the contrary, be presumed to have been authorized by the Presi-
dent.
Ib.
13. By the conquest and occupation of Castine, that territory passed
under the temporary allegiance and Sovereignty of the enemy.
The sovereignty of the United States over the territory was sus-
pended during such occupation, so that the laws of the United
States couſd not be rightfully enforced there, or be obligatory
upon the inhabitants who remained and submitted to the con-
querors.
United States vs. Hayward, 2 Gallison, 485, [501.]
58 CONSTITUIONAL LAW.
14. But a territory conquered by an enemy is not to be considered as
incorporated into the dominions of that enemy without a renun-
ciation in a treaty of peace, or a long and permanent possession.
Until such incorporation it is still entitled to the full benefit of
the law of postlininy.
Ib.
CONSTITUTHONALL HLAW.
See Tonnage-Taac.
1. In all cases of plain and obvious conflict between the provisions of
the Constitution and the provisions of a statute, not only the judi-
Ciary, but every department of the Government, required to act
upon the subject-matter, must determine what the law is, and
obey the Constitution.
- Claim of Belding's Heirs, 10 Op., 56, Bates, (1861.)
2. The Constitution did not prohibit the creation, by military authority,
of courts for the trial of civil causes during the civil war in con-
Quered portions of the insurgent States. The establishment of
such courts was the exercise of the ordinary rights of conquest.
Mechanics and Traders’ Bank vs. Union Bank, 22 Wallace, 276.
3. The case of the city of New York vs. Miln (11 Peters, 103) decided
only that the requirement that the master of a vessel should
furnish a catalogue of his passengers, on oath, was a police regu-
lation, and not unconstitutional. The result of the Passenger
cases (7 Howard, 283) was to decide that a tax demanded of the
“master or owner of the vessel for every passenger was a regula-
tion of commerce, and unconstitutional.
Henderson vs. The Mayor of New York ; Commissioners of Immigration v8. The
North German Lloyds; 92 U. S. R., S. C., 259.
4. In whatever language a statute may be framed, its purpose and its
constitutional validity must be determined by its natural, reason-
able effect; and if the object of a statute is to compel the owners
of vessels to pay a sum of money for every passenger brought by
them from a foreign port and landed at the port of New York, it
is as much a tax on passengers as if collected from them, or a tax
on the vessel, or the owners.
Ib.
5. Held, therefore, that the law of the State of New York, which pro-
vided that the master or owner of a vessel should make a report
similar to the one referred to in the case of New York vs. Miln,
and that on this report the mayor was to indorse a demand on
the master or owner that he give a bond for every passenger
landed, which bond might be commuted by paying within twenty-
four hours the sum of one dollar and a half for each passenger
so landed, was a regulation of commerce, and unconstitutional.
4. Ib.
CONSULAR COURTS. 59
6. The court does not undertake to decide whether a State may, in
the absence of legislation by Congress, pass a statute to de-
fend itself against paupers or criminals, but is of opinion that to
Congress rightly and properly belongs the power of legislation
over the whole question.
Ib.
7. A statute of the State of California provided that the commissioner
of immigration should satisfy himself whether any passenger
from a foreign port, not a citizen of the United States, belonged
to certain enumerated classes, among which were lunatics, idiots,
and lewd or debauched women, and that no such person should be
permitted to land until a bond be given against any expense to be
incurred for relief or support. The master, owner, or consignee
was allowed to commute by paying such sums as the commissioner
might think proper to exact. Held, that if the States possess the
right to pass statutes to protect themselves against criminals,
paupers, or diseased foreigners who may land, in any view which
can be taken of the act in question it is in confict with the Con-
..stitution, and therefore void.
Chy Lung vs. Freeman, 92 U. S. R., S. C., 275.
[See also Gibbons vs. Ogden, 9 Wheaton, 190; City of New
York vs. Miln, 11 Peters, 103; The Passenger Cases, 7 Howard,
283; Gilman vs. Philadelphia, 3 Wallace, 713.]
*-*
COPNSURL.A.R. Côtiſſ HºTTS,
1. In the absence of any specific appropriation for the object, the ex-
pense of transferring prisoners, held by the authorities of the
United States in China from Amoy to Hong-Kong for trial on a
Charge of piracy, is a lawful charge upon the judiciary fund, so
called, being the fund appropriated for defraying “the expenses
of prosecutions for offenses committed against the United States,
and for the safe-keeping of prisoners.”
{} Claim for transporting prisoners, 6 Op., 59, Cushing, (1853.)
2. Jurisdiction and manner of holding consular courts in China dis-
cussed and considered at length.
Judicial authority in China, 7 Op., 495, Cushing, (1855.)
3. The judicial authority of the United States commissioner to China is
restricted to the five ports mentioned in the treaty with that na-
tion. (Pub. Trs., 129.) -- -
Authority of commissioners to China, 9 Op., 294, Black, (1859.)
4. Under the act of 1848, (9 Stat. 276, superseded by later acts, R. S.,
§ 4125,) the United States consuls in Turkey have judicial powers
only in criminal cases. -
Jurisdiction of consular courts in Turkey, 9 Op., 296, Black, (1859.)
60 CONSULAR COURTS.
5. The salary of a person appointed marshal of the United States con-
Sular court at Shanghai begins from the time of his entering upon
such duties as are preliminary to his departure for the field of
his services after taking the oath of office and giving the bond
prescribed by law.
Hughston’s case, 10 Op., 250, Bates, (1862.)
6. A consular court of the United States in Japan cannot, in the case
of a suit by a person not a citizen of the United States against
an American merchant, entertain a plea of set-off further than to
the extent of the claim asserted by the plaintiff.
Consular courts in Japan, 11 Op., 474, Speed, (1866.)
7. Under the treaty with that country of 1858, (Pub. Trs. 452,) and the
laws of the United States, (12 Stat., 72 R. S., § 4083,) a consular
court cannot render a judgment against a person of foreign birth
not a citizen of the United States.
Ib.
8. Where consular courts are clothed with criminal jurisdiction, the
rule applies that a sentence of imprisonment cannot be legally
executed beyond the territorial jurisdiction of the court which
pronounced it, unless authority there to execute the sentence is
conferred by the legislature.
Case of three convicts at Smyrna, 14 Op., 522, Williams, (1875.)
9. Hence, in the absence of any law-giving power to send convicts of
the consular courts at Smyrna and Constantinople to this coun-
try for imprisonment, if such convicts were brought to the United
States for that purpose they could not legally be held.
Ib.
10. Semble, that, under the present statutory provisions (R. S., §§
4121 to 4125, inclusive) it is contemplated that the sentences of
those courts, pronounced in the exercise of their criminal juris-
diction, are to be executed only in the country where the trial
and punishment were had.
4 Ib.
11. It cannot be contended that every consul, by virtue of his office, has
power to exercise the judicial functions caimed in this case; for
it is conceded that this is not the case in Christian countries.
And while, on the other side, it is also conceded that in pagan
and Mahometan countries it is usual for the ministers and Con-
suls of European states to exercise judicial functions as between
their fellow-subjects or citizens, it clearly appears that the extent
to which this power is exercised depends upon treaties and laws
regulating such jurisdiction. The instructions given by the Brit-
ish Foreign Office to their consuls in the Levant, in 1844, as
quoted by Mr. Phillimore, do not claim anything more.
Dainese v8. Hale, 91 U. S. R., S. C. 13.
CONSULAR COURTS. 61
12. Historically, it is undoubtedly true, as shown by numerous authori-
ties quoted by Mr. Warden in his treatise on “The Origin and
Nature of Consular Establishments,” that the consul was origin-
ally an officer of large judicial as well as commercial powers, ex-
ercising entire municipal authority over his countrymen in the
country to which he was accredited. But the changed circum-
stances of Europe, and the prevalence of civil order in the sev-
eral Christian states, have had the effect of greatly modifying
the powers of the consular office; and it may now be considered
as generally true that, for any judicial powers which may be
vested in the consuls accredited to any nation, we must look to
the express provisions of the treaties entered into with that na-
tion, and to the laws of the States which the consuls represent.
Ib.
13. The treaty between the United States and the Ottoman Empire
of 1862, (Pub. Trs., 585,) if not that made in 1830, (Pub. Trs.,
583,) has the effect of conceding to the United States the same
privilege, in respect to consular courts and the civil and crim-
inal jurisdiction thereof, which is enjoyed by other Christian
nations; and the act of Congress of 22d June, 1860, (12 stat., 72
R. S., § 4083,) established the necessary regulations for the ex-
ercise of such jurisdiction.
Ib.
14. But as this jurisdiction is, in terms, only such as is allowed by the
laws of Turkey, or its usages in its intercourse with other Chris-
tian nations, those laws or usages must be shown in order that
the precise extent of such jurisdiction may be known.
15. A consular court is a court of limited jurisdiction, and all the juris-
dictional facts must be alleged in the libel or petition; otherwise
it will be insufficient. sº
Steamer Spark vs. Lee Choi Chum, 1 Sawyer, 713.
16. In cases of appeal from the consular and ministerial courts of China
and Japan to the circuit court of the United States for the dis-
trict of California, the record on appeal must show an allowance
of the appeal.
Ib.
17. A citation is necessary, unless the appeal is allowed in open court.
Quere, whether a citation is not always necessary, if the consular
court has once adjourned after rendering a decree, there being no
terms of such courts.
- Ib.
62
CONSULAR OFFICERS.
(CONSUILALR OF FIGCIERS.
See Compensation.
Foreign Consuls.
Office.
Seamen.
. A consul is not a public minister, nor entitled to the privileges attached
to the person of such an officer.
Case of British consul at Norfolk, 1 Op., 41 Bradford, (1794.)
. Consuls cannot collect three months’ extra wages from the master or
owner of a vessel wrecked or stranded abroad and sold.
Case of discharged seamen, 1 Op., 148, Lincoln, (1804.)
The brig Pamelia, 2 Op., 418, Berrien, (1831.)
. Attestation is not essential to the validity of the consular bond. (See
R. S., § 1697.)
9 Mr. Strong’s bond, 1 Op., 378, Wirt, (1820.)
. The powers and duties of American, consuls as to seamen's wages
are confined to vessels owned by citizens of the United States,
and constituting a part of our mercantile marine by Sailing under
our flag.
Shipmasters and seamen, 2 Op., 448, Berrien, (1831.)
. The funeral expenses of a deceased consul to the Barbary States, and
the incidental and contingent expenses of the censulate after his
death, are fair items of charge on the fund for the contingent ex-
penses of foreign intercourse; such consul having been a diplo-
matic agent. %.
Coace's-case, 2 Op., 521, Taney, (1832.)
When the son of the deceased consul remains at the port and dis-
charges the duties of consul, which are recognized by the Gov-
ernment, he may receive the compensation fixed by law for such
Services. -
Ib.
. Such was the practice of the Government in the cases of Messrs. Fol-
Som, Heap, Simpson, and Hodgson.
Ib.
. The 2d section of the act of 1803 (2 Stat., 203; R. S., § 4309) does
not require the papers of an American vessel in a foreign port to
be delivered to the consul, except in cases where it is necessary
to make an entry at the custom-house.
Case of the consul at Nassau, 4 Op., 390, Mason, (1845.)
. Masters of American vessels entering foreign ports where there is an
American consul, and remaining so long that, by the local regu-
CONSULAR OFFICERS. 63
lations, they are required to enter and afterward to clear in reg-
ular form, are required to deposit their registers, &c., with such
consul, irrespective of the purpose for which the port was entered.
Case of the commercial agent at St. Thomas, 5 Op, 161, Johnson, (1849.)
10. In order that the master of a ship on her “arrival” in a foreign port
shall be compellable to deposit the ship's papers with the consul,
the arrival must be such an one as involves entry and clearance.
Case of the commercial agent at St. Thomas, 6 Op., 163, Cushing, [1853.)
11. Consuls have no authority to order the sale of a ship in a foreign
port.
The bark Serene, 6 Op., 617, Cushing, (1854.)
12. If, on such sale, a consul retains money for the payment of sea-
men's wages, he acts at his own peril, and is responsible to the
OWIléI’S.
Ib.
13. The United States is not responsible in damages for moneys ille-
gally received by consuls, or for any other act of malfeasance by
them in office.
Ib.
14. Consuls of the United States have no lawful authority, as such, to
Solemnize marriages in countries comprehended within the pale
of the international public law of Christendom, (but see subse-
quent act, 1860, 12 Stat., 79; R. S., § 4082;) otherwise, in
countries not Christian, where, by convention, or in fact where
the rights of exterritoriality are possessed by citizens of the
United States.
- Celebration of marriages, 7 Op., 18 Cushing, (1854.)
15. The power of the President and the power of Congress in reference
to the appointment of consuls and consular officers discussed,
and the powers, duties, and liabilities of such officers considered.
Concerning appointment of consuls, 7 Op., 242, Cushing, (1855.)
16. A consul may be authorized to communicate directly with the gov-
ernment near which he resides, but he does not thereby acquire
the diplomatic privileges of a minister.
Ritter's case, 7 Op., 342, Cushing, (1855.)
17. Nor does he, as consul, acquire such privileges by-being appointed,
as he may be at the same time, chargé d'affaires.
Ib.
18. A marriage cannot be solemnized by a consul of the United States
in Germany.
Ib.
64. consulAR OFFICERS.
19. The exterritoriality of foreign consuls in Turkey and other Mahom-
medan countries is entirely independent of the fact of diplomatic
representation, and is maintained by the difference of law and
religion, being but incidental to the fact of the established ex-
territoriality of Christians in all countries not Christian.
- Ib.
20. Consuls, as international commercial agents, originated in the
colonial municipalities of the Latin Christians in the Levant,
which municipalities were self-governing through their “con-
suls,” the ancient title of municipal magistrates in Italy.
- - Ib.
21. Rights of private exterritoriality having ceased to exist in Christen-
dom, foreign consuls have ceased, mostly, to be municipal magis-
trates of their countrymen there; but they still continue not only
international agents but also administrative and judicial func-
tionaries of their countrymen in Countries outside of Christendom.
- Ib.
22. Masters of American vessels are subject to prosecution in the name
of the consul for omission to deposit with him the papers accord-
ing to law, but not to indictment. (2 Stat., 203, § 2; R. S., § 4309.)
The Gauntlet and the Allegamian, 7 Op., 395, Cushing, (1855.)
23. Vice-consuls are competent to hold consular courts in China, when
duly appointed or approved as such by the Secretary of State.
(See act of February 1, 1876, amending R. S., § 4130.)
Judicial authority in China, 7 Op., 495, [511, Cushing, (1855.)
24. The face of a banker's circular-letter of credit, found in the posses-
Sion of an American dying abroad, is not assets to that amount
upon Which a consul may charge commissions as administrator.
- Alexander's case, 7 Op., 542, Cushing, (1855.)
25. A substitute or vice-consul, left in charge of the consulate during
the temporary absence of the consul, is to be compensated out of
the statute emoluments of the office, subject to regulations of the
Department. An acting consul in charge of a consulate during
actual vacancy of the consulate, is entitled to receive the statute
Compensation of the office.
Compensation of acting consuls, 7 Op., 714, Cushing, (1856.)
26. American consuls have no authority to require masters of American
vessels to take on board and convey to the United States for trial,
persons accused of crime.
Case of Seneca S. Bishop, 7 Op., 722, Cushing, (1856.)
27. Consuls of the United States in foreign countries are required to
detain persons charged with the commission of crimes at sea or
CONSULAR OFFICERS. 65
28.
29.
30.
31.
33.
34.
in port, under circumstances giving jurisdiction to the courts of
the United States. They may inquire into the charges and have
authority to send such persons home for trial, but as a general
proposition, apart from treaty provisions, have no criminal juris-
diction. - .
Blythe, consul at Havana, 8 Op., 380, Cushing, (1857.)
The authority of the consul in such case is ministerial and not
judicial in its nature. . -
Ib.
The commander of an American vessel is required to deliver his
register and other ship's papers to the consul at a foreign port,
only in cases where he is compelled to make an entry at the custom-
house.'
- The New York and Havre Steamers, 9 Op., 256, Black, (1858.)
A consul of the United States, under the act of 1803, (2 Stat., 203;
R. S., § 4309,) has no authority, by withholding a ship's papers,
to compel payment of demands of creditors against the vessel.
Powers of consuls, 9 Op., 384, Black, (1859.)
A consul, under section 28 of the act of 1856, (11 Stat., 63; R. S.,
§ 1718,) has authority to detain the papers of a ship to enforce only
the payment of wages in certain cases and consular fees; but he
has not a general power of deciding upon all manner of disputed
claims against American vessels.
Iö.
. A consul may recover the penalties incurred by the master of a ves-
sel for neglecting to deposit his papers, in a court of competent
jurisdiction, but he has no right to enforce otherwise the payment
of the penalties.
Ib.
A consul of the United States in a foreign port has no power to re-
tain the papers of vessels which he may suspect are destined for
the slave-trade. •
Detention of ship's papers, 9 Op., 426, Black, (1860.)
No more than fifty cents can be charged for certifying invoices and for
certifying the place of growth or production of goods made duty free
by the reciprocity treaty with Great Britain of 1854, although.
Such certificate may be accompanied by an attestation of the offi-
cial character of a magistrate and of the value of the goods.
Consuls, as well as consular officers and agents, are subject to
this, restriction. It applies to all the British North American
provinces included within the reciprocity treaty. (Pub. Trs.,
329, terminated by notice.)
tº 5 Consular fees, 9 Op, 441, Black, (1860.)
66
CONSULAR OFFICERS.
35. The penal provisions of section 17 of the act of 1856, (11 Stat., 58;
R. S., § 1723,) only apply to the taking of greater fees than are
allowed by the act itself, and do not, therefore, extend to the
taking of greater fees than are allowed by section 3 of the act of
1859, (11 Stat., 404; repealed by sec. 3, act of 1864, 13 Stat., 140;
R. S., § 1721.) - & º * -
Case of the consul at Halifax, 9 Op., 500, Black, (1860.)
36. The master of an American vessel sailing to or between ports in
37.
39.
40.
41.
the British North American provinces is required, on arriving
at any such port, to deposit his ship's papers with the American
consul.
The act of 1861, (12 Stat., 315; R. S., § 4309,) does not
change or affect the duties of masters of American vessels,
running regularly, by Weekly or monthly trips, or otherwise,
between foreign ports, as imposed by act of 1803, (2 Stat., 203;
R. S., § 4309.) $.
• American steamers at Port Sarmia, 11 Op., 73, Bates, (1866.)
If an American vessel is obliged by the law or usage prevailing at -
a foreign port to effect an entry, and she does enter conform-
ably to the local law or usage, her coming to such foreign port
amounts to an “arrival,” within the meaning of section 2 of act
of 1803, independently of any ulterior destination of the vessel,
or the time she may remain, or intend to remain, at such port,
or the particular business she may transact there.
Ib.
. The fees receivable by a consul for receiving and delivering a ves-
sel’s register and other papers, under the act of 1803, (2 Stat.,
203; R. S., § 4309,) are prescribed by regulations of the Presi-
dent, under act of 1856, (11 Stat., 57; R. S., § 1745.)
Ib.
The act of 1861, (12 Stat., 315; R. S., § 1720,) was merely intended
to limit the amount of fees payable annually to American con-
suls by the masters of American vessels running, by regular
trips, to or between foreign ports.
Ib.
The provisions of the act of 1803, (2 Stat., 203; R. S., § 4309,) in
reference to the deposit of ships' papers with American consuls,
apply to American steam ferry-boats running between Detroit
and Windsor, Canada West. (But see subsequent act of 1872,
17 Stat., 214; R. S., § 2792.)
Case of the consul at Windsor, 11 Op.,237, Speed, (1865.)
The consul of the United States at Honolulu has the right and
power, without interference from the local courts, to determine,
CONSULAR OFFICERS. 67
as between citizens of the United States, who comprise the crew
of an American vessel, and are bound to fulfill the obligations
imposed by the shipping articles.
Judicial powers of consul at Honolulu, 11 Op., 508, Speed, (1866.)
42. No law or regulation requires an American consul to certify to the
official character and acts of a foreign notary public. The con-
suls of the United States are authorized, by section 24 of the act
of 1856, (11 Stat., 61; R. S., § 1750,) to perform any notarial
acts; but a certificate as to the official character of a foreign
notary is not a notarial act; and if it were such, the duty would
not be imperative. - - \
Edward Lawrence's case, 12 Op., 1, Stanbery, (1866.)
43. Section 3 of act of 1866 (14 Stat., 226; R. S., § 1729) is limited to
unsalaried consuls and commercial agents, and does not embrace
Consular agents. - - -
Compensation of consular agents, 12 Op., 97, Stanbery, (1866.)
44. Consular agents are entitled to the compensation allowed them under
section 15 of act of 1856, (11 Stat., 57; R. S., § 1703.)
Ib.
45. The fees of consular agents, receivable under the act of 1856, are
not returnable in the accounts of the consuls, to whom they are
subordinate, under the act of 1866.
t 1b.
46. The fees collected by consular agents, which are payable under
the act of 1856 to their principals, are returnable in the accounts
of such principals. - *
Jb.
47. Consuls may retain $1,000 out of the aggregate of moneys received
from consular agencies or vice-consulates. (See R. S., § 1733.)
Fees of consuls, 12 Op., 527, Evarts, (1868.)
48. Where the crew of an American ship had been shipped by the mas.
ter in the United States, and the shipping-articles contained a
clause that “all moneys were to be paid in United States cur-
rency, or its equivalent in gold, at the current rate of exchange:”
Held, that, in settling some accounts with the master at Singa-
pore, India, for the wages of his crew, the United States consul
there should have allowed a deduction from the pay of the sea-
men of the difference between United States currency and gold
or silver, the currency of Singapore, and the cost of exchange
thereon between India and America.
- Case of the ship Fearless, 13 Op., 557, Akerman, (1872.)
68
CONSULAR OFFICERS.
49.
bj1.
52.
53.
54.
55.
56.
57.
A consul’s bond takes effect from the time of its approval by the
Secretary of State. (Act 1856, 11 Stat., 56; $ 13; R. S., § 1697.)
Where an appointee was commissioned consul on 18th January,
and his bond; dated 13th of the same month, was not approved
until the 27th : Held valid under the said act.
t Wilson's case, 14 Op., 7, Williams, (1872.)
. A consul has no authority to demand and receive from the master
of a vessel the money and effects belonging to a deserter from the
Vessel.
- Deserters of the bark Bolivia, 14 Op., 520, Williams, (1875.)
The steps which should be taken by the master, with reference to
the disposition of such property, indicated. t
! w - Ib.
It is not a consular function to authenticate the laws of a foreign
State, and the certificate of a consul to that effect is not evidence.
Church vs. Hubbart, 2 Cranch, 187, [237.]
A consular certificate is not admissible to prove the correctness of a
translation.
Ib., [239.]
Consuls are approved and admitted by the local sovereign. If guilty
of illegal or improper conduct the exeguatur which has been given
may be revoked, and they may be punished or sent out of the
Country, at the option of the offended government. In civil and
criminal cases, they are subject to the local law in the same man-
ner with other foreign residents owing a temporary allegiance to
the state. A trading consul, in all that concerns his trade, is
liable in the same way as a native merchant. The character of
consul does not give any protection to that of merchant when
they are united in the same person. - -
Coppell vs. Hall, 7 Wallace, 553.
The provision of the act of May 1, 1810, fixing a salary to the con-
Sul at Algiers, and assigning to him certain duties, treating that
place as belonging to a Mohammedan power, ceased to be opera-
tive when the country, of which it was the principal city, became
a province of France.
Mahoney w8. United States, 10 Wallace, 62.
The consul of a nation may claim on behalf of its subjects, in the
absence of any authorized agent.
The London Packet, 1 Mason, 14.
A consul is liable to civil suits, like any other individual, in the
tribunals of the country in which he resides.
Gittings vs. Crawford, Taney's Dec., 1.
CONSULAR OFFICERS. 69
58. A consul of a foreign power, though not entitled to represent his
Sovereign in a country where the sovereign has an ambassador,
is entitled to intervene for all subjects of that power interested.
Robson vs. The Huntress, 2 Wallace, jr., 59.
59. If a seaman be entitled to the privileges of an American seaman,
and be destitute, the consul is the proper judge as to the ship on
board of which he should be placed for his return to the United
States. - -
Matthews vs. Offley, 3 Summer, 115.
60. A consul has no right to detain seamen in prison as a punishment,
after he has discharged them from their contract at the request
of the master. g
Jordan v8. Williams, 1 Curtis, 69, [85.]
**
61. The action of a consul in discharging a seaman in a foreign port is
not conclusive on the court where a libel is filed for wages.
* - Campbell vs. The Uncle Sam, 1 McAllister, 77.
62. The advice of an American consul, in a foreign port, gives to the
master of a vessel no justification for an illegal act.
ve Wilson vs. The Mary, Gilpin, 33.
63. The right given to seamen by the act of 1840, (5 Stat., 396;
R. S. § 4567,) to lay their complaints before the American consul
in foreign ports, is one of great importance, which a court of
admiralty will carefully protect.
Morris vs. Cornell, 1 Sprague, 62.
64. Where a minor concealed himself, without the knowledge of his
father, on board of a whaling-ship, and was not discovered till the
vessel was at sea, and was then left by the master in the care of
the American consul at the first port at which he touched, it was
the duty of the consul to provide for and send him home to the
United States.
Luscom vs. Osgood, 1 Sprague, 82;
65. No private person can interpose in a case of prize, and make claim
for the restoration of captured property on the ground that the
capture was made in neutral waters. * -
Whatever claim is made must be presented by the neutral nation,
whose rights have been infringed. Even a consul cannot, by
virtue of his office merely, interpose.
* The Lilla, 2 Sprague, 177.
66. Notwithstanding the very sweeping language of section 3 of act 1803
(2 Stat., 203; R. S., $4576) and section 8 of act 1840, (5Stat., 395,)
requiring masters of American vessels to give bond for the return
of all the crew, unless discharged in a foreign country with con-
70 CONTINGENT EXPENSES.
sent of a consul, yet these sections, construed with the aid
of the other parts of these statutes, cannot be held to require a
master to return to the United States foreign seamen shipped at
their own home, for a particular cruise, ending where it began, and
discharged there according to the terms of their contract, though
without the consent of a consul. 3 |
United States vs. Parsons, 1 Lowell, 107.
…”
The consent of a consul could not be rightly withheld in such a
case, and there is no law requiring it to be asked.
67.
i
Ib.
68. Whether the bond is intended to be given for seamen, even if
shipped in the United States, who by the terms of their engage-
ment are entitled to be discharged abroad, quere.
& Ib.
69. A consul’s certificate is not evidence of acts not official or within his
personal knowledge. The certificate of a consul in a foreign port
as to transactions concerning a seaman's discharge, not within
his official duties, is not evidence. .*
Brºwn vs. The Independence, Crabbe's Rep., 54.
70. A consul, particularly in an enemy's country, has no authority by
* virtue of his office to grant a license or permit which will have
the effect of exempting a vessel of the enemy from capture and
confiscation.
Rogers vs. The Amado, 1 Newberry, Adm., 400.
71. Under the act of 18th August, 1856,(11 Stat., 56; R. S., § 1738,) which
provides that “no consular officer shall exercise diplomatic func-
tions in any case unless expressly authorized by the President so
to do,” a retiring minister cannot install a consul in charge of
the legation, nor can the consul receive the pay provided by
law for a chargé d'affairés. * * •
- Otterbourg vs. United States, 5 C. Cls., 430.
C @RT INGENT EXPENSEES.
|
1. The strictly personal expenses of the commissioners, under the con-
vention with New Granada, are not payable out of the contingent
fund of the commission provided by the act of 1861, sec. 8, (12
Stat., 146.) The language of the act, in making the appropria-
tion, was: “That for the compensation of the officers authorized
by the third section, and the contingent expenses of the com-
missioner on the part of the United States,” &c.
- Leavenworth's account, 10-Op., 216, Bates, (1862.)
CONTINGENT FOREIGN INTERCOURSE—CONTRABAND. 71
CONTHNGENT HEXIPIENSIES OF FOREHGN INTEHR (CQUERSE.
1. The funeral expenses of a deceased consul to the Barbary States,
and the incidental and contingent expenses of the consulate after
his death, are fair items of charge on the fund for the contingent
expenses of foreign intercourse, such consul being a diplomatic
agent. * 1
Coace's case, 2 Op. 521, Taney, (1832.)
2. The expense of recasting cannon, &c., to be presented to the Imaum
of Muscat, in return for presents received, may be defrayed from
the appropriation for the contingent expenses of foreign inter-
COUITSé. *
Presents to the Imaum of Muscat, 4 Op., 358, Mason, (1845.)
3. This appropriation is placed at the disposal of the Executive, who
is charged with the care and management of all our foreign
relations. *
And, as it has been the practice of our Government, from its
earliest history, to interchange presents with the semi-barbarous
nations of Asia and Africa, and as the Executive is vested with
a discretion respecting the manner in which friendly relations
with them can be best maintained, it follows that, if he shall be
of opinion that the public interests will be promoted by tendering
a present in return for one received, he may legally do so, and
cause the expense thereof to be defrayed from the funds thus
placed at his disposal. -
Ib.
CONTRABAND.
See Neutrality.
1. By the modern law of nations provisions are not, in general, deemed
contraband; but they may become so, although the property of a
neutral, on account of the particular situation of the war, or on
account of their destination. If destined for the ordinary use of
life in the enemy’s country, they are not, in general, contraband;
but it is otherwise if destined for military use. Hence, if des-
tined for the army or navy of the enemy, or for his ports of naval
or military equipment, they are deemed contraband. Another
exception from being treated as contraband is, where the provis-
ions are the growth of the neutral exporting country. But if
they be the growth of the enemy’s country, and more especially
if the property of his subjects, and destined for enemy's use, there
does not seem any good reason for the exemption; for, as Sir
William Scott has observed, in such a case the party has not
only gone out of his way for the supply of the enemy, but he has
assisted him by taking off his surplus commodities.
The Commercen, 1 Wheaton, 382, [388.]
72 CONTRABAND.
2. Generally, when contraband goods have been landed, and the vessel
has proceeded on her voyage, neither the vessel nor the remain-
ing cargo are liable to seizure; aliter, if the destination and
papers are false.
Carrington vs. Merchants' Ins. Co., 8 Peters, 495.
3. Aecording to the modern law of nations—for there has been some
relaxation in practice from the strictness of the ancient rules—
the carriage of contraband goods to the enemy subjects them, if
captured in delicto, to the penalty of confiscation; but the vessel
and the remaining cargo, if they do not belong to the owner of
the contraband goods, are not subject to the same penalty. The
penalty is applied to the latter only when there has been some .
actual co-operation, on their part, in a meditated fraud upon the
belligerents, by covering up the fraud under false papers, and
With a false destination.
Ib.
4. Neutrals may convey to belligerent ports not under blockade what-
ever belligerents may desire to take, except contraband of war,
which is always subject to seizure when being conveyed to a bel-
ligerent destination, whether the voyage be direct or indirect;
such seizure, however, is restricted to actual contraband, and
does not extend to the ship or other cargo, except in cases of
fraud or bad faith on the part of the owners or of the master with
their sanction.
Vessels conveying contraband cargo to belligerent ports not
under blockade, under circumstances of fraud or bad faith; are
liable to seizure and condemnation from the commencement to
the end of the voyage.
The Bermuda, 3 Wallace, 514.
5. The trade of neutrals with belligerents in articles not contraband is
absolutely free unless interrupted by blockade. The conveyance
by neutrals to belligerents of contraband articles is always un-
lawful, and such articles may always be seized during transit by
Seal.
The Peterhoff, 5 Wallace, 28.
6. The classification of goods as contraband or not contraband, which
is best supported by American and English decisions, divides all
merchandise into three classes: . . . t
I. Articles manufactured and primarily or ordinarily used for
military purposes in time of war.
II. Articles which may be and are used for purposes of war or
peace, according to circumstances.
III. Articles exclusively used for peaceful purposes.
- Ib.
CONTRACTS. 73
7. Merchandise of the first class, destined to a belligerent country or
places occupied by the army or navy of a belligerent, is always
contraband; merchandise of the second class is contraband only
when actually destined to the military or naval use of a bel-
ligerent; while merchandise of the third class is not contraband
at all, though liable to seizure and condemnation for violation of
blockade or siege.
Ib.
*
8. Contraband articles contaminate the parts not contraband of a cargo
if belonging to the same owner, and the non-contraband must
share the fate of the contraband. Ib
9. In modern times conveyance of contraband attaches in ordinary eases
only to the freight of the contraband merchandise. It does not
Subject the vessel to forfeiture. - Ib
10. Money, silver-plate, and bullion, when destined for hostile use, or
for the purchase of hostile supplies, are contraband of war. In
this case the determination of the question whether such articles,
part of the outward-bound cargo of the vessel, were contraband
devolved upon the commanding general.
United States vs. Diekelman, 92 U. S. R., S. C., 520.
11. Admitting that provisions are not, in general, contraband of war, it
is clear that they become so when destined to a port of naval
equipment of an enemy, and a fortiori, when destined for the sup-
ply of his army.
Maisonnaire v3. Keating, 2 Gallison, 335.
CONTERACTS,
See Seamen.
1. Semble, that if the provisions of law which require certain contracts
to be advertised are disregarded, the contracts, while they re-
main executory, and without commencement of performance, are
subject to be rescinded. ...”
Charles Knap's case, 6 Op., 406, Cushing, (1854.)
2. When any agent of the United States, with due authority of law,
makes a contract with any person for its use and benefit, such
agent is not responsible to the party, whose only remedy is against
the Government. If a public officer or agent make a contract
without authority, and which, therefore, does not bind the Gov-
ernment, he is himself responsible to the other contracting party.
And such officer or agent, although contracting for the Govern-
ment with due authority, may, if he see fit, make himself the re-
sponsible party, either exclusively or in addition to the Govern-
Iment. *
- Benson's case, 7, Op., 88 Cushing, (1855)
74. COOLIE TRAT) E.
3. It is a sufficient objection to an unexecuted contract made by an offi-
cer of the Government that he has neglected to comply with an
act of Congress requiring that proposals shall precede the letting
of the contract.
Case of James and others, 10 Op., 416, Bates, (1862.)
4. But, after a party has entered into a contract with the Government
in good faith, and has so far performed his part of the same that
to rescind it, or declare it illegal, and therefore incapable of execu-
tion, would subject him to loss and injury, while the Government
would yet enjoy the benefits of his labor or expenditure, the contract
cannot be avoided, or changed to the injury of the other party,
by the Government, on the ground that it was made without ad-
vertising for proposals. ſº -
- Ib.
5. Sections 1781 and 1782 of the Revised Statutes make it illegal for an
officer of the United States to have that sort of connection with
a Goverriment contract which an agent, attorney, or solicitor
assumes when he procures, or aids in procuring, such contract
for another, or when he prosecutes for another any claim against
the Government founded thereon.
Washburn's case, 14 Op., 482, Williams, (1874.)
6. But there is in the statutes no general provisions whereby officers of
the executive branch of the Government are forbidden to con-
tract directly with the Government as principals in matters sepa-
rate from their offices and in no way connected with the per-
formance of their official duties; nor are those officers forbidden
to be connected with such contracts, after they are procured, by
acquiring an interest therein. Ib
7. It is the duty of the Secretary of War to see that contracts which
belong to his office are properly and faithfully executed, whether
he made the contracts himself or conferred authority on others
to make them; and if he becomes satisfied that contracts which
he has made are being fraudulently executed, or that those made
by others were made in disregard of the rights of the Govern-
ment, or with the intent to defraud it, or are being unfaithfully
executed, it is his duty to interpose, arrest the execution, and
adopt effectual measures to protect the Government against the
dishonesty of subordinates.
United States vs. Adams, 7 Wallace, 463.
(C60){}}LHRE TRAITORE.
1. The coolie-trade is not within the acts of Congress prohibiting the
slave-trade. (But see acts of 1862 and 1869, R. S., $2158, et. seq.)
Coolie Trade, 9 Op., 282, Black, (1859.)
COURT OF CLAIMS-CRIMES. 75
Cºlºſ RT ©F CLAHNHS,
See Claims.
COURTS HN FOREHGN CGUNTRHIES.
See Commanding General.
1. It is unusual for military commanders to exercise the right to erect
courts; and nothing will be presumed in favor of tribunals SG
established.
Snell v8. Fawsatt, 1 Washington, 271.
(CREEW.
See Seamen.
1. Whenever, in a statute, the words master and crew occur in Con-
nection with each other, the word crew embraces all the officers
as well as the common seamen.
United States vs. Winn, 3 Sumner, 209, [212.]"
2. One who secretes himself on board a vessel and discovers himself
after the vessel is at sea, is not one of the crew, though he
works as such in pursuance of the requirement of the master that
he should work as a condition of his having food.
United States vs. Small, 2 Curtis, 241.
CFRHMHES.
See Consular Officers.
Easterritoriality.
Iºactradition.
1. It is treason for a citizen, or any other person within the United
States, not commissioned under France, to aid and abet that
nation in her maritime war with the United States, and the of.
fender may be tried and punished according to our laws.
Treason, 1 Op., 84, Lee, (1798.)
2. Citizens of the United States who aid a nation with whom we are at
War on the high seas, against the United States, are guilty of
treason.
The pirate Nigre, 1 Op., 85, Lee, (1798.)
3. The authority of the General Government to take, forcibly detain in
custody, and bring to this country from Europe, a person charged
with barratry on private property, is doubtful.
- Clifton's case, 1 Op., 123, Lincoln, (1802.)
76 CRIMES.
4. A Texan armed schooner cannot be treated as a pirate under the act
of 1790 (1 Stat., 112; R. S., § 5372) for capturing an American
merchantman, on the alleged ground that she was laden with pro-
visions, stores, and munitions of war for the use of the army of
Mexico, with the government of which Texas, at the time, was in
a state of revolt and civil war.
- The Texan schooner Invincible, 3 Op., 120, Butler, (1836.)
5. Authority of consuls to detain and send to the United States persons
charged with crime, discussed. -
Blythe, consul at Havana, 8 Op., 380, Cushing, (1857.)
| }
6. To make the firing of one vessel into another a piratical aggression,
within the act of 1819, (3 Stat., 510; R. S., § 5368,) it must be a
first aggression, unprovoked by any previous act of hostility or
menace from the other side. -
The General Miramon and Marquis de la Habana, 9 Op., 455, [456,1 Black, (1860.)
7. Robbery on the lakes is piracy, within the meaning of our extradition
treaty with Great Britain of 1842. (Pub. Trs, 320.)
Lake Erie pirates, 11 Op., 114, Bates, (1864.)
8. Where a portion of the crew of the steamer Edgar Stewart forcibly
displaced the master from command, and took possession of the
vessel : Held, that this did not constitute the offense of piracy,
but of mutiny; that, for the latter offense, the parties charged
are liable to be tried and punished under the laws of the United
States, and that they may be tried therefor in any district into
which they are first brought. * ,
The Edgar Stewart, 14 Op., 589, Hill, acting, (1872.)
9. A commission issued by Aury, as “Brigadier of the Mexican Repub-
lic,” (a republic whose existence is unknown and unacknowl-
edged,) or as “Generalissimo of the Floridas,” (a province in the
possession of Spain,) will not authorize armed vessels to make
eaptures at Sea. Under the particular circumstances of this case,
showing that the seizure was made, not jure belli, but animo
furandi, the commission was held not to exempt the prisoner from
the charge of piracy.
United States vs. Klintock, 5 Wheaton, 144.
10. The act of 1819, § 5, (3 Stat., 513; R. S., § 5368,) referring to the law
of nations for a definition of the crime of piracy, is a constitutional
exercise of the power of Congress to define and punish that crime.
Piracy is defined by the law of nations with reasonable certainty.
IRobbery, or forcible depredation upon the sea, animo furandi, is
piracy by the law of nations.
United States vs. Smith, 5 Wheaton, 153.
DEBTS BY AND TO UNITED STATES.–DECEASED FOREIGNERS. 77
11. A vessel loses her national character by assuming a piratical char-
acter, and a piracy committed by a foreigner from on board such
a vessel upon any other vessel whatever is punishable under Sec.
8 of the act of 1790, (1 Stat., 113; R. S., § 5360.)
United States vs. Pirates, 5 Wheaton, 184.
12. Pirates may, without doubt, be lawfully captured on the ocean by
the public or private ships of every nation; for they are, in truth,
the common enemies of all mankind, and, as such, are liable to
the extreme rights of war. And a piratical aggression by an
armed vessel sailing under the regular flag of any nation may be
justly subjected to the penalty of confiscation for such a gross
breach of the law of nations. But every hostile attack, in a time
of peace, is not necessarily piratical. It may be by mistake, or
in necessary self-defense, or to repel a supposed meditated attack
by pirates. It may be justifiable, and then no blame attaches to
the act; or it may be without just excuse, and then it carries
responsibility in damages. If it proceed further, if it be an at-
tack from revenge and malignity, from gross abuse of power and
a settled purpose of mischief, it then assumes the character of a
private, unauthorized War, and may be punished by all the pen-
alties which the law of nations can properly administer.
The Marianna Flora, 11 Wheaton, 40, 41.
United States vs. Brig Maleh Adhel, 2 Howard, 236.
13. Piracy is defined by the law of nations to be a forcible depredation
upon property on the high seas, without lawful authority, done
animo furandi; that is, as defined, in this connection, in a spirit"
and intention of universal hostility. A pirate is said to be one who
roves the sea in an armed vessel, without any commission from
any Sovereign state, on his own authority, and for the purpose of
seizing by force and appropriating to himself, without discrimi-
nation, every vessel he may meet.
United States vs. Baker, 5 Blatchford, 11, 12.
DEBTs Rºy AND To UNITED states.
1. The United States has the right to apply moneys due to an officer for
pay and emoluments to extinguish a debt due from him to the
TJnited States.
Gratiot vs. United States, 15 Peters, 336.
1DBEC BEASEAE FOREHGNEHES,
See Foreign Decedents.
DEGEDENTS’ ESTATES.–IXE FACTO GOVERNMENT.
HDPECFEHPENTS? EESTATES.
See Consular Officers.
Poreign Consuls.
Foreign Decedents.
DEcLARATHoN of WAR.
See War.
DE FACTo GoverenMENT.
See Sovereignty.
Civil War.
1. The legislature of Texas . * * constituted one of the departments
of a State government established in hostility to the Constitution
of the United States. It cannot be regarded, therefore, in the
courts of the United States as a lawful legislature, or its acts as
lawful acts. And yet it is an historical fact that the government
of Texas, then in full control of the State, was its only actual
government; and certainly, if Texas had been a separate State,
and not one of the United States, the new government, having
displaced the regular authority, and having established itself in
the customary seats of power, and in the exercise of the ordinary
functions of administration, would have constituted, in the strict-
est sense of the words, a de facto government, and its acts, during
the period of its existence as such, would be effectual, and, in
almost all respects, valid. And, to some extent, this is true of
the actual government of Texas, though unlawful and revolu-
tionary, as to the United States.
. . Tea as vs. White, 7 Wallace, 700, [732, 733.]
2. It is not necessary to attempt any exact definitions within which the
acts of such a State government must be treated as Valid or in-
valid. It may be said, perhaps with sufficient accuracy, that acts
necessary to peace and good order, among citizens, such, for
example, as acts Sanctioning and protecting marriage and the
domestic relations, governing the course of descents, regulating
the conveyance and transfer of property, real and personal, and
providing remedies for injuries to person and estate, and other
similar acts, which would be valid if emanating from a lawful
government, must be regarded in general as valid when proceed-
ing from an actual, though unlawful, government; and that acts
in furtherance or support of rebellion against the United States,
or intended to defeat the just rights of citizens, and other acts of
like nature, must, in general, be regarded as invalid or void.
Ib,
IDE FACTO GOVERNMENT. 79
3. We admit that the acts of the several States, in their individual
capacities, and of their different departments of government,
executive, judicial, and legislative, during the war, so far as they
did not impair, or tend to impair, the Supremacy of the national
authority, or the just rights of citizens under the Constitution,
are, in general, to be treated as valid and binding. The existence
of a state of insurrection and war did not loosen the bands of ,
society, nor do away with civil government, nor the regular admin-
istration of the laws. Order was to be preserved, police regula-
tions maintained, crime prosecuted, property protected, contracts
enforced, marriages celebrated, estates settled, and the transferand
descent of property regulated precisely as in time of peace. No
one, that we are aware of, seriously questions the validity of judi-
cial or legislative acts in the insurrectionary States touching these
and kindred subjects, where they were not hostile in their pur-
pose or mode of enforcement to the authority of the National
Government, and did not impair the rights of citizens under the
Constitution. -
Horn vs. Lockhart, 17 Wallace, 570, [580.]
4. The recognition of the existence and validity of the acts of the so-
called Confederate government, and that of the States which
yielded a temporary support to that Government, stand on very
different grounds, and are governed by very different considera-
tions.
The latter, in most, if not all, instances, merely transferred the
existing State organization to the support of a new and different
national head. The same constitutions, the same laws for the
protection of property and personal rights remained, and were
administered by the same officers. These laws, necessary in their
recognition and administration to the existence of organized
society, were the same, with slight exceptions, whether the
authorities of the State acknowledged allegiance to the true or
the false Federal power. They were the fundamental principles
for which civil Society is organized into government in all coun-
tries, and must be respected in their administration under what-
ever temporary dominant authority they may be exercised. It
is only when, in the use of these powers, substantial aid and com-
fort was given or intended to be given to the rebellion, when the
functions necessarily reposed in the State for the maintenance
of civil society were perverted to the manifest and intentional
aid of treason against the Government of the Union, that their
acts are void.
The government of the Confederate States can receive no aid
from this course of reasoning. It had no existence, except as a
conspiracy to overthrow lawful authority. Its foundation was
80 IDE FACTO GOVERNMENT.
treason against the existing Federal Government. Its single
purpose, So long as it lasted, Was to make that treason successful.
So far from being necessary to the organization of civil govern-
ment, or to its maintenace and support, it was inimical to social
order, destructive to the best interests of society, and its primary
object was to overthrow the Government on which these so largely
depended. Its existence and temporary power were an enormous
evil, which the whole force of the Government and the people of
the United States was engaged for years in destroying.
When it was overthrown it perished totally. It left no laws,
no statutes, no decrees, no authority whióh can give support to
any contract, or any act done in its service, or in aid of its pur-
pose, or which contributed to protract its existence. So far as
the actual exercise of its physical power was brought to bear
upon individuals, that may, under Some circumstances, constitute
a justification or excuse for acts otherwise indefensible, but no
validity can be given by the courts of this country to acts volun-
tarily performed in direct aid and support of its unlawful purpose.
Sprott vs. United States, 20 Wallace, 459, [464,465.]
5. No doubt the legislature of Georgia in 1861 and 1863, when the
enactments were made for the incoporation of the plaintiffs, was
not the legitimate legislature of the State. The State had thrown
off its connection with the United States, and the members of the
legislature had repudiated, or had not taken the oath by which
the third section of the sixth article of the Constitution re-
quires the members of the several State legislatures to be bound.
But it does not follow from this that it was not a legislature, the
acts of which were of force when they were made, and are in
force now. If not a legislature of the State de jure, it was at
least a legislature de facto. It was the only law-making body
which had any existence. Its members acted under color of office
by an election, though not qualified according to the requirements
of the Constitution of the United States. Now, while it must be
held that all their acts in hostility to that Constitution, or to the
Union, of which the State was an inseparable member, have no
validity, no good reason can be assigned why all their other
enactments, not forbidden by the Constitution, should not have
the force which the law generally accords to the action of de facto
public officers. -
United States vs. Insurance Companies, 22 Wallace, 99, [101.]
6. Until the Legislative and Executive Departments of the Government
recognize the existence of a new foreign government, the Federal
courts will not do so. The doctrine in this case applied to the
Confederate States.
Unitedstates w8, Baker, 5 Blatchford, 6
DEFENSE OF SUITS—DEPARTMENTS OF GOVERNMENT. 81
7. When a question arises with reference to the existence or validity of
an organization claiming to be the lawful government of a foreign
country, the courts are bound by the decision of the executive
power; such a question is political and not judicial. The steamer
Hornet having been seized upon a charge of violation of neutral-
ity, a person claiming to be the agent of the “republic of Cuba.”
having applied to intervene: Held, that the question being a polit-
ical one, and the republic of Cuba not having been publicly rec-
ognized, such claim could not be allowed. -
The Hornet, 2 Abbott, U. S. R., 35.
| DELFENSIE OF SUATS,
See, Swits.
DE JURE Gov ERNMENT.
See Sovereignty.
Civil Way".
DEPARTMENTs of Government.
1. When one department of the Government has lawfully assumed
jurisdiction of a particular case, any other co-ordinate department
should decline to interfere with or assume to control its legiti-
mate action.
Captures on the Rio Grande, 11 Op., 117, Bates, (1864.)
2. There is no power in the Executive Department to revise or reverse
the judgments of the prize or other courts of law of the United
States, or to criticise and condemn their supposed errors.
- Ib.
3. When the courts have acquired jurisdiction of a case of maritime
capture the political department of the Government should post-
pone the consideration of questions concerning reclamation and
indemnities until the judiciary has finally performed its functions
in those cases.
Ib,
4. When a court of the United States in the exercise of its discretion
has advisedly determined to permit a vessel libelled for violation
of the neutrality laws to be released on bond, the Executive De-
partment has no power or duty to interfere with the proceedings.
& The Meteor, 12 Op., 2, Stambery, (1866.)
6 *
82 DEPOSITIONS-DIPLOMATIC INTERFERENCE.
5. In a controversy between the United States and a foreign sovereign
as to boundary, this court must follow the decision of that de-
partment of the Government which is intrusted by the Constitu-
tion with the care of its foreign relations, especially if sanctioned
by the legislative power.
- Foster vs. Neilson, 2 Peters, 253.
DE POSITIONS.
1. A commission was issued by a judge in Cuba to the Spanish consul
in New York to take testimony to be used in a criminal prosecu-
tion for swindling, and the consul thereupon applied to the dis-
trict court for a summons to compel the witness to appear and
testify. Held, that the court had no power to issue the summons
asked for. The only provisions made by Congress on the subject
of enforcing the giving of testimony in judicial proceedings pend-
ing in a foreign country are those found in the acts of 2 March,
1855, (10 Stat., 630,) and of 3 March, 1863, (12 Stat., 769, R. S.
4071,) neither of which acts applies to this case. -
- Matter of the Spanish Consul, 1 Benedict, 225.
| DESERTING SEAN IEN.
See Seamen.’
DESTITUTE SEANIEN.
See Seamen.
DIPLOMIATIC INTERFERENCE
See Capture and prize.
Neutrality.
1. The usage of sovereigns is not to interfere in the administration of
justice until the foreign subject who complains has gone with his
case to the court of dernier resort.
Pagan’s case, 1 Op., 25, Randolph, (1792.)
2. A nation ought not to interfere in the causes of its citizens brought
before foreign tribunals, except in a case of refusal of justice or
of palpable injustice. *
Green's case, 1 Op., 53, Bradford, (1794.)
DIPLOMATIC OFFICERS. 83
3. If there are original documents in the archives of a foreign govern-
ment which tend to support the title of a claimant of some of the
public lands, the President ought not, at the request of such
claimant, to solicit that government to furnish them.
The Castillero case, 9 Op., 320, Black, (1859.)
4. The rule that before a citizen of a country is entitled to the aid of his
government in obtaining redress for wrongs done him by another
government, he must have sought redress in vain through the
judicial tribunal of that other government, is inapplicable where
the offending government, by the acts of its proper organ, relieves
the injured party from the obligation of pursuing such a course.
Panama transit taa, 13 Op., 547, Akerman, (1871.)
5. Where an officer with a party of armed men, acting under an order
of a judicial officer of the port of Granada, seized an American
vessel at that port, kept possession of it a few hours, and then
withdrew pursuant to an order of the same judge, the seizure
having been made for the purpose of enforcing a supposed legal
right: Held, that this Government ought not to make reclamation
in behalf of the owner, as it is presumable that if the proceedings
were illegal the judicial tribunals of Nicaragua will afford redress.
Case of the Tipitapa, 13 Op., 554, Akerman, (1872.)
6. A Spanish-owned vessel on her way from New York to Havana, being
in distress, put, by leave of the admiral commanding the squadron,
into Port Royal, S. C., then in rebellion and blockaded by a Gov-
ernment fleet, and was seized as prize of war and used by the
Government. She was afterwards condemned as prize, but
ordered to be restored. She never was restored; damages for her
seizure, detention, and value being awarded : Heid, that clearly
She was not prize of war or subject to capture, and that her own-
ers were entitled to fair indemnity, although it might well be
doubted whether the case was not more properly a subject for
diplomatic adjustment than for determination by the courts.
The Nuestra Señora de Regla, 17 Wallace, 30.
|DHPLLON ATIC OFFICERS.
See Compensation.
Office.
Resignation.
1. The President, having the foreign-intercourse fund under his direc-
* tion, may advance to a minister going from the United States to
Chili such part of his salary as he shall deem necessary to the
proper fulfillment of public engagements in respect to him.
Case of the minister to Chili, 1 Op., 620, Wirt, (1823.)
84 DIPLOMATIC OFFICERs.
2. The President, being intrusted with the subject of the diplomatic
intercourse of the United States with foreign nations, may, in his
discretion, advance money to a minister going abroad. (Act 1823,
3 Stat., 723; R. S., §§ 3648, 1740, 1743.)
Case of the minister to Colombia, 2 Op. 904, Berrien, (1829.)
3. The minister to Madrid is not entitled to charge for office-rent, although
similar charges have been allowed to our ministers to London and
Paris, the same not being warranted by law, nor having been the
usage of the Government. (See 6 Stat., 436, Private Laws.)
Case of the minister to Madrid, 2 Op., 453, Taney, (1831.)
4. The power of the President and the power of Congress in reference
to the appointment of “ambassadors and other public ministers”
discussed at large.
Ambassadors and public ministers, 7 Op., 186, Cushing, (1855.)
Among others, the following conclusions were reached :
5. The expression “ambassadors and other public ministers,” in the Con-
stitution, must be understood as comprehending all officers hav-
ing diplomatic functions, whatever their title or designation.
i Ib. .
6. The President has power, by the Constitution, to appoint diplomatic
agents, of any rank, at any place, and at any time, Subject to the
constitutional conditions of relation to the Senate.
2. Ib.
7. The power to make such appointments is not derived from, and can-
not be limited by, any act of Congress, except in so far as appro-
priations of money are required to provide for the expenses of
this branch of the public service. During the early administra-
tions of the Government, the appropriations made for the ex-
penses of foreign intercourse were to be expended in the discretion
of the President, and from this general fund ministers whom the
President saw fit to name were paid.
* - Ib.
8. Congress cannot require that the President shall make removals or
re-appointments or new appointments of public ministers at a par-
ticular time, nor that he shall appoint or maintain ministers of a
prescribed rank, at particular courts.
s Ib.
9. Where the act of 1855 (10 Stat., 619) declared that from and after the
end of the present fiscal year the President shall appoint envoys,
&c., held, it could not constitutionally mean, and should not be
construed to mean, that the President was required to make any
such appointments, but only to determine what should be the sala-
ries of the officers in case they have been or shall be appointed,
DIPLOMATIC POWER—IDIPLOMATIC PRIVILEGE. 85
10. There is no interruption of the authority or renewal of the creden-
tials of American public ministers on a change of President for
whatever cause, provided such President continues to represent
and exercise the appointing power of the Government.
Construction of Mesilla treaty, 7 Op., 582, Cushin.g, (1855.)
11. A public minister who was at home at the time of his recall, and
who was paid his salary down to the date of his recall, is not
entitled, in addition, to compensation for such further time as
Would be necessarily spent in coming home from the seat of his
mission.
Jackson's case, 9 Op., 261, Black, (1858.)
12. It was not the intention of Congress, by the act of 1867, (14 Stat., 412,)
forbidding the payment of any money to the then minister to Por-
tugal, to put an end to the Portuguese mission, but simply to pro-
hibit the payment of the salary for personal services of the min-
ister.
The Portuguese mission, 12 Op., 275, Stanbery, (1867.)
13. A minister plenipotentiary from the United States to a foreign power
cannot, without the consent of Congress, accept a similar com-
mission from a third power; though he is not prohibited from
rendering a friendly service to a foreign government, even that
of negotiating a treaty, provided he does not become an officer
thereof.
Case of an American minister, 13 Op., 537, Akerman, (1871.)
14. The certificate and seal of the minister resident of Great Britain in
Hanover is not a proper authentication for the proceedings of a
foreign court or of the proceedings of an officer authorized to take
depositions. It is not connected in any way with the functions
of the minister. His certificate and seal could only authenticate
those acts which are appropriate to his office.
* Stein vs. Bowman, 13 Peters, 209.
DI}*}[,40NHATHC POWER.
1. It was the practice of the Spanish Crown, during the reign of Charles
I and his successors of the Austrian dynasty, to delegate to
Spanish viceroys, governors, and Captains-general the jus legatio-
nis as well in Europe as in Asia and America; and that delega-
tion was recognized by the public law of Europe.
Power of Spanish viceroys, 7 Op., 551, Cushing, (1855.)
DMPLoMATIC PRHVHLEGE.
See Privilege from Arrest,
Public Minister.
86
DISCOVERY-DOMICILE.
|DISCOVERY,
1. The title, by discovery, to lands in America occupied by Indians con-
2
sidered. A |
Johnson and Graham's lessee v8. McIntosh, 8 Wheaton, 543.
-----!——
DOMMHCHILE.
See Enemy Property.
Public Mimister.
. The selection and actual enjoyment of a foreign domicile, with an in-
tent not to return, would not alone constitute expatriation.
Reply to President's inquiries, 14 Op., 295, Williams, (1873.)
. Obligations of the Government toward its citizens domiciled in for-
eign countries, who apparently have no intention to return, and
who do not contribute to its support, considered ; and likewise
What should be regarded as evidence of the absence of an intent.
to return in Such cases.
Ib.
. Domicile of a neutral or citizen in an enemy's country subjects his
property embarked in trade to capture on the high seas.
s The Venus, 8 Cranch, 253
. If he cause property to be shipped before war be declared, or before
its declaration be known, it is, like other enemy’s property, liable.
to capture; but these effects of domicile cease from the moment
he puts himself in motion, bona fide, to quit the country intend-
ing not to return. *
Ib.
. A naturalized citizen who, in time of peace, returns to his native
country for the purpose of trade, but with the intention of return-
ing again to his adopted country, continuing in the former a year
after the knowledge of the existence of war between the two coun.
tries for the purpose of winding up a complicated business, and
engaging in no new commercial transactions whatever with the
enemy, and actually returning to his adopted country in a little
more than a year after his first knowledge of the war, is to be con-
sidered as having gained a domicile in his native country, and his
goods, captured after the war, liable to condemnation,
The Frances, 8 Cranch, 335. *
6. Goods, the property of merchants actually domiciled in the enemy's
country at the breaking out of a war, are subject to capture and,
confiscation as prize. ~~ -
The Mary and Sugam, 1 Wheaton, 46.
DOMICILE. 87
7. Where a native citizen of the United States emigrated before a decla-
ration of war to a neutral country, there acquired a domicile, and
afterward returned to the United States during the war and re-
acquired his native domicile, he became a redintegrated American
citizen; and could not afterward, flagrante bello, acquire a neutral
domicile by again emigrating to his adopted country.
The Dos Hermanos, 2 Wheaton, 76.
8. The native character does not revert by the mere return to his native
country of a merchant who is domiciled in a neutral Country at
the time of capture; who afterward leaves his commercial es-
tablishment in the neutral country to be conducted by his clerks
in his absence; who visits his native country merely on mer-
cantile business, and intends to return to his adopted country.
Under these circumstances the neutral domicile still continues.
The Friendschaft, 3 Wheaton, 14.
9. British subjects resident in Portugal, though entitled to great privi-
leges, do not retain their native character, but acquire that of the
country where they reside and carry on their trade.
Ib.
10. The property of a house of trade, established in the enemy's
country, is condemnable as prize, whatever be the personal domi-
cile of the partners.
The Friendschaft, 4 Wheaton, 105.
11. Rules concerning the evidence of domicile stated. Kosciusko's
“declarations that his residence was in France, in the way they
were made in his wills, with an interval of ten years between
them, would, upon the authority of adjudged cases, be sufficient
to establish, prima facie, his domicile in France. They have been
received in the courts of France, in the courts of England, and
in those of our own country.” Cases cited.
Ennis vs. Smith, 14 Howard, 422,423.
12. Kosciusko's domicile of origin was Lithuania, in Poland. The pre-
sumption of law is that it was retained, unless the change is
proved, and the burden of proving it is upon him who alleges
the change. * * But what amount of proof is necessary to
change a domicile of origin into a prima facie domicile of choice &
It is residence elsewhere, or where a person lives out of the domi-
cile of origin. That repels the presumption of its continuance,
and casts upon him who denies the domicile of choice the burden
of disproving it. Where a person lives is taken prima facie to be
his domicile until other facts establish the contrary. It is diffi.
cult to lay down any rule under which every instance of resi-
dence could be brought which may make a domicile of choice.
But there must be, to constitute it, actual residence in the place,
88 DOMICILE.
with the intention that it is to be a principal and permanent
residence. That intention may be inferred from the circum-
stances or condition in which a person may be as to the domicile
of his origin, or from the seat of his fortune, his family, and pur-
suits of life. A removal which does not contemplate an absence
from the former domicile for an indefinite and uncertain time is
not a change of it. . But when there is a removal, unless it can
be shown, or inferred from circumstances, that it was for some
particular purpose expected to be only of a temporary nature, or
in the exercise of some particular profession, office, or calling, it
does change the domicile.
Ib.
13. The result is that the place of residence is prima facie the domicile,
unless there be some motive for that residence not inconsistent
with a clearly-established intention to retain a permanent resi-
dence in another place.
* W Ib.
14. The property of a commercial house, established in the enemy's
country, is subject to seizure and condemnation as prize, though
some of the partners may have a neutral domicile.
The Cheshire, 3 Wallace, 231.
15. Neutral friends, or even citizens who remain in the country of the
enemy, after the declaration of war, have impressed upon them
so much the character of enemies that trading with them be-
comes illegal, and all property so acquired is liable to confisca-
tion. -
The William Bagaley, 5 Wallace, 377, [405.]
16. The duty of a citizen, when war breaks out, if it be a foreign war,
and he is abroad, is to return without delay; and if it be a civil
war, and he is a resident in the rebellious section, he should
leave it as soon as practicable.
Ib.
17. Domicile in the law of prize becomes an important consideration,
because every person is to be considered in such proceedings as
belonging to that country where he has his domicile, whatever
may be his native or adopted country.
- Ib.
18. The question of enemy or friend depends upon the domicile.
The Ann Green, 1 Gallison, 274.
The Joseph, Ib., 545.
The Francis, Ib., 614, [618.]
19. If a party put himself in itinere to return to his native country, he
is already deemed to have assumed his native character.
The St. Lawrence, 1 Gallison, 467.
The Francis, Ib. 614.
DOMESTICS-EIGHT-HOUR LAW. $ 89.
ºb OMIES THCS.
See Servaºis.
*-*-**-*=
JºAFTTS,
See Bills of Eccl.ange.
Eight-Hour LAw.
1. The act of 1868, (15 Stat., 77; R. S., § 3738,) declaring that “eight
hours shall constitute a day’s work,” left the subject of compensa-
tion to be regulated upon principles in force at the time of its pas-
sage. The President, by proclamation dated 19 May, 1869, (16
Stat., 1127,) directed that thereafter no reduction should be made
in the wages of Government employés on account of the reduction
in the hours of labor: Held, that persons serving the Government
as laborers, workmen, and mechanics are not entitled to receive,
for the period intervening between the date of the act and the
date of the proclamation, the wages of a day of ten hours for
working eight hours, the Government being under no obligation
to pay more for the past because it has agreed to pay more for
the future.
Reply to Secretary of War, 13 Op., 424, Akerman, (1871.)
2. The act of 1868, (15 Stat., 77; R. S., § 3738,) declaring that eight
hours shall constitute a day's work for all laborers, workmen, and
mechanics employed by or on behalf of the United States, does
not apply to laborers, Workmen, and mechanics employed by a
contractor with the United States.
Stone-cutters at Richmond, 14 Op., 37, [45,1 Bristow, acting, (1872.)
3. Section 2 of act 1872, (17 Stat., 134,) see proclamation May 11, 1872,
(17 Stat., 955,) relating to the settlement of accounts for the serv-
ices of laborers, workmen, and mechanics employed by the Gov-
ernment between 25th June, 1868, and 19th May, 1869, is to be
liberally construed, and may be taken to include all persons thus
employed and paid by the day, although they may not come within
the description of “laborers, workmen, and mechanics,” regarding
these words in their more strict signification.
Reply to Secretary of War, 14 Op., 128, Hill, acting, (1872.)
90 - ENEMY—ENEMY PROPERTY.
FENEM [Y.
See Alien Enemy.
Lomicile.
1. Under the seventh section of the act of 1799, (1 Stat., 716, repealed,
see R. S., § 4652,) France was to be deemed an enemy of the
United States in March, 1799. The meaning of the word enemy
discussed.
Bas vs. Tingy, 4 Dallas, 37, 39.
ENIEMIY PROPERTY.
1. Enemy property found in the United States, on land, at the com-
mencement of hostilities, cannot be condemned without a legisla-
tive act authorizing its confiscation. An act declaring war is not
Such an act. -
Brown vs. United States, 8 Cranch, 110.
2. An island conquered and occupied by the enemy is, for belligerent
and commercial purposes, his soil. The produce of that soil is.
liable to condemnation while it belongs to the individual proprie-
tor of the soil which produced it, although he is a neutral.
Thirty Hogsheads of Sugar vs. Boyle, 9 Cranch, 191.
3. The rules that neutral bottoms make neutral goods, and that ene-
my’s bottoms make enemy's goods, are not only separable in their
nature, but have been generally separated, and they are held by the
United States to be distinct.
The Nereide, 9 Cranch, 388.
4. Consequently, a stipulation for the former rule, in a treaty, does not.
silently introduce the latter.
Ib.
5. The fact that Spain administers the latter rule, as against neutrals,
does not authorize this court to retaliate upon Spanish subjects a
like departure from the law of nations without legislation direct-
ing it.
Ib.
6. A neutral may lawfully ship his goods on board an armed belligerent
vessel, and if her force is used in a combat, in which he gives no
aid, his goods are not affected.
Ib.
7. Goods, the property of merchants actually domiciled in the enemy's
country at the breaking out of the war, are subject to capture
and confiscation as prize.
º The Mary and Susan, 1. Wheaton, 46.
ENEMY PROPERTY. 91
8. It is a principle of the law of nations that a neutral cargo found on
board an armed enemy's vessel is not liable to condemnation as
prize of War.
The Atalanta, 3 Wheaton, 409
9. The property of a house of trade, established in the enemy’s country,
is condemnable as prize, whatever may be the personal domicile
of the partners.
The Friendschaft, 4 Wheaton, 105
10. In general, the circumstance of goods being found on board an ene-
my's Ship raises a legal presumption that they are enemy’s
property. *
The London Packet, 5 Wheaton, 132.
11. The property of a commercial house established in the enemy's coun-
try is subject to seizure and condemnation as prize, though some
of the partners may have a neutral domicile.
The Cheshire, 3 Wallace, 231.
12. Neutrals who place their vessels under belligerent control, and en-
gage them in belligerent trade, or permit them to be sent with
contraband cargoes, under cover of false destination, to neutral
ports, while the real destination is to belligerent ports, impress
upon them the character of the belligerents in whose service they
are employed, and the vessel may be seized and condemned as
enemy property.
The Hart, 3 Wallace, 559.
13. The liability of property, the product of an enemy country, and
coming from it during war, is irrespective of the status domicilii,
guilt or innocence of the owner. If it come from enemy territory,
it bears the impress of enemy’s property. If it belong to a loyal
citizen of the country of the captors, it is nevertheless as much
liable to condemnation as if owned by a citizen or subject of the
hostile country, or by the hostile government itself.
The Gray Jacket, 5 Wallace, 342.
14. The only qualification of these rules is, that where, upon the break-
ing out of hostilities, or as soon after as possible, the owner es-
capes with such property as he can take with him, or in good faith
thus early removes his property, with the view of putting it be-
yond the dominion of the hostile power, the property in such cases
is exempt from the liability which would otherwise attend it.
Ib.
15. Personal property left in a hostile country by an owner who aban-
dons such country in order to go to the other belligerent, and SO
to return to his proper allegiance and soil, becomes, unless an ef.
fort is made with promptitude to remove. it from such country,
impressed with its character, and as such liable to the conse-
quences attaching to enemy's property.
w The William Bagaley, 5 Wallace, 377.
92 ENEMY's LICENSE—ExCHANGE.
16. The presumption of the law of nations is against an owner who
suffers such property to continue in the hostile country for much
length of time. - *
Ib.
17. A contract made by a consul of a neutral power with the citizen of
a belligerent State, that he will “protect,” with his neutral name,
from capture by the belligerent, merchandise which such citizen
has in the enemy's lines, is against public policy and Void.
Coppell vs. Hall, 7 Wallace, 542.
18. A shipment made by an enemy shipper to his correspondent in
America, to belong to the latter at his election, in twenty-four
hours after the arrival thereof, is liable to condemnation as hos-
tile property.
The ship Francis and cargo, 1 Gallison, 445.
19. In war, property cannot change its hostile character in transitu.
In the above case, an election made during the transit will not
merge the hostile character of the property. -
* I b.
20. A ship is deemed to belong to the country where the owners reside,
Courts of prize look to the legal interest in the ship, and will
not recognize neutral equitable interests.
The San José Indiano, 2 Gallison, 268.
21. What is enemy's property is a judicial question. -
- The Amy Warwick, 2 Sprague, 123.
IENIENHY2S LHCIENSE.
See Illicit Intercourse.
EN LIST;"lºſ ENTS.
See Foreign Enlistments.
ESTATES.
See Consular Officers.
Foreign Decedents.
|EXCHANGE.
See Bills of Exchange.
Seamen.
EXECUTIVE AUTHORITY-EXECUTIVE DEPARTMENTS. 93
ExEcuTrve AUTHoRITY.
See Blockade.
Eacecutive Interference.
I. Where a legislative act of New South Wales provides that certain
proceedings may be had in the courts as to the seamen of any
foreign country deserting in that colony, provided the govern-
ment of such foreign country assents, held, that such assent on
the part of the United States cannot be given by the President,
but can only be given by treaty or act of Congress. ſº
Seamen's act of New South Wales, 6 Op., 209, Cushing, (1853.)
2. In a matter which the law confides to the pure discretion of the ex-
ecutive, the decision by the President or proper head of depart-
ment, of any question of fact involved, is conclusive, and is not
subject to revision by any other authority in the United States.
Bayley's complaint, 6 Op., 226, Cushing, (1853.)
EXECUTIVE DIELPARTIVII ENTS.
1. It is a rule which each administration has prescribed to itself, to con-
sider the acts of its predecessors conclusive so far as the execu-
tive is concerned. • . *
The right of review, 2 Op., 8 Wirt, (1825.)
2. An Executivel»epartment has authority to appoint commissioners and
agents to make investigations required by acts or resolutions of
Congress; but it cannot pay them, except from an appropriation
for that purpose. gº
Question of appointments, 4 Op., 248, Nelson, (1843.)
3. Although it may have been a rule of an Executive Department to con-
strue an act of Congress relating to claims, in a particular man-
ner, yet when Congress has afterward expressed an opinion in
conflict with that of the office, such action of Congress has been
considered as in the nature of a legislative interpretation, which
becoming courtesy to the legislative department requires the ex-
ecutive to observe. -
Case of representative of John M. Galt, 5 Op., 83, [84,] Johnson, (1849.)
4. The decision of the head of a Department, directing payment of a
particular claim, is binding upon all the subordinate officers by
whom the same is to be audited and passed. This doctrine has
been recognized from the organization of the Government, is nec-
essary to its proper operations, and is warranted by law.
H. Lasell's case, 5 Op., 87, Johnson, (1849.)
94 EXECUTIVE DEPARTMENTS.
5. It is not competent for the Secretary of the Treasury to réview the
decisions of a predecessor on claims or accounts, except where
mistakes have occurred in matters of fact, and where material
new evidence has been discovered.
Power of Secrétary of Treasury, 5 Op., 664, Crittenden, (1852.)
6. The duties of the clerks in an Executive Department are assigned to
them by the head of the Department, except where they are
specifically designated in particular cases by statute; and no pos-
terior claim to extra compensation can be founded on the official
acts done by a clerk, provided those acts constituted any part of
the lawful duties of the Department.
Stubbs's case, 6 Op., 583, Cushing, (1854.)
7. As a general rule the direction of the President is to be presumed in
all instructions issuing from the competent Department.
Relation of President to Eacecutive Departments, 7 Op., 453, Cushing, (1855.)
8. Official instructions, issued by the heads of the several Executive
Departments, civil and military, within their respective jurisdic-
tions, are valid and lawful, without containing express reference
to the direction of the President.
Ib.
9. Heads of Departments or of bureaus and other certifying-officers
of the Government cannot certify by delegation, unless when
specially authorized so to do by act of Congress. -
Certification by delegation, 7 Op., 594, Cushing, (1855.)
10. A statute which merely authorizes the payment of a sum of money
by one of the heads of Department is not mandatory in fact or
in amount. - -
t Appropriation act, P. O. Department, 8 Op., 39, Cushing, (1856.)
11. In all cases of plain and obvious conflict between the provisions of
the Constitution and the provisions of a statute, not only the
Judiciary Department, but every Department of the Government
required to act upon the subject-matter, must determine what
the law is, and obey the Constitution.
Power of Departments over rejected claims, 10 Op., 56, Bates, (1861.)
12. It is within the power of the head of an Executive Department to
allow a claim which has been rejected by one of his predecessors,
without new evidence. But the decision of the head of a De-
partment ought only to be reversed on clear evidence of mistake
or Wrong.
Ib.
13. The heads of Departments have a rightful authority to direct allow-
ances to be made, or to reject claims for allowances, in settling and
ExECUTIVE DEPARTMENTS. 95
14.
15.
16.
17.
18.
19.
20.
adjusting accounts relating to the business of their respective De-
partments, and such directions ought to be conformed to by the
accounting-officers.
Authority of heads of Departments, 10 Op., 435, [441, J Bates, (1863.)
The cases defined in which the head of a Department is authorized
to re-open the final decision of a predecessor.
Chorpenning's case, 12 Op., 355, Stambery, (1868.)
Where the Postmaster-General is authorized and required by act of
Congress to adjust a particular claim, nothing but a new authority,
emanating from Congress, will enable one of his successors to
open his adjustment, upon the ground that he adopted an erro-
neous basis of settlement.
• Ib.
The fact that, since the settlement, the committees of the two houses
recommended by reports a different basis of settlement will not
authorize a re-opening of the case. -
It seems that the President would have no power, in such a
case, to order the re-opening of the claim.
Ib.
Clerks in the Executive Departments are officers, and required to
take the oath prescribed by the act of 1862. (12 Stat., 502; R.
Oaths of clerks in Departments, 12 Op., 521, Evarts, (1868.)
A decision made by a former head of Department, after having heard
the parties in interest, and after careful and thorough considera-
tion of the case—there being no allegation that any material fact
can be shown which was not before him—should be regarded by
his successor as final, and be left undisturbed.
Case of Western Pacific Railroad Company, 13 Op., 387, Akerman, (1871.)
The principle that the final decision of a matter before the head of
a Department is binding upon his successor in the same Depart-
ment, under certain well-defined exceptions, has been so fre-
Quently declared that it is now entitled to be regarded as a settled
rule of administrative law.
Cage of R. H. McGoon, 13 Op., 456, Bristow, acting, (1871.)
Semble that, whenever the law makes it the duty of an officer to
examine, adjust, and settle claims against the Government, au-
thority is impliedly given to him to require such claims to be
supported by the oaths of witnesses, where the facts necessary to
establish them rest on testimony.
Major Anderson's case, 14 Op., 419, Williams, (1874.)
96
EXECUTIVE DEPARTMENTs.
21.
22.
23.
24.
25.
26.
27.
The act of 1871 (16 Stat., 412; R. S., § 184) assumes the exist-
ence of authority in the heads of Departments and bureaus to
require oaths in cases of claims against the Government, and
provides them with a very efficient means for enforcing it.
- Ib.
The President acts, in many cases, through the heads of Depart-
ments; and the Secretary of War, having directed a section of
land to be reserved for military purposes, the court presumed it
to have been done by the direction of the President, and held it
to be, by law, his act.
Wilcoa, vs. Jackson, 13 Peters, 498.
The head of a Department has no right to review the decision of his
predecessor, allowing a credit, except to correct some error of
calculation. If he is of opinion that the allowance was wrong-
ful, he must have a suit brought.
United States vs. Bank of Metropolis, 15 Peters, 377.
The head of a Department is the regular constitutional organ of the
President for the administration of the affairs of the Department
over which he presides, and rules and orders publicly promulged
through him must be received as acts of the Executive, and, as
such, be binding upon all within the sphere of his legal and con-
stitutional authority.
United States vs. Eliason, 16 Peters, 291, [302.]
A public officer is not liable to an action for an honest mistake made
in a matter where he was obliged to exercise his judgment,
though an individual may suffer from his mistake.
ICendall v8. Stokes, 3 Howard, 87.
It is the duty of the head of a Department to see that contracts
which belong to his office are properly and faithfully executed,
whether he made the contracts himself or conferred authority on
others to make them ; and if he becomes satisfied that contracts
which he has made are being fraudulently executed, or that those
made by others were made in disregard of the rights of the Gov-
ernment, or with the intent to defraud it, or are being unfaith-
fully executed, it is his duty to interpose, arrest the execution,
and adopt effectual measures to protect the Government against
the dishonesty of subordinates.
United States vs. Adams, 7 Wallace, 463.
When a statute authorizes an inferior public officer to make a sale
“with the approval” of his superior, that approval is an indis.
pensable condition to the validity of the sale, and must appear in
Writing ; without its so appearing, he cannot make a good title
which a purchaser is bound to accept. -
United States vs. Jonas, 19 Wallace, 598.
EXECUTIVE INTERFERENCE. 97.
28. A regulation of the Treasury Department, made in pursuance of an
act of Congress, becomes a part of the law, and is of the same
force as if incorporated in the body of the act itself.
United States vs. Barrows, 1 Abbott, U. S. R., 351.
29. The records of an Executive Department need not be produced in
evidence in court, but their contents may be shown by authen:
ticated copies. * º
Nock's case, 2 C. Cls., 451.
EXECUTIVE INTERFEFENCE.
1
. In a suit brought against a consul-general of France, for transac-
tions of a public nature, in which he acted as the commercial
agent of his country, the President has no constitutional right to
interfere, but must leave the matter to the tribunals of justice.
- - Letombe's case, 1 Op., 77 Lee, (1797.)
2.
A person acting under a commission from the sovereign of a foreign
nation is not amenable for what he does in pursuance of his com-
mission to any judicial tribunal in the United States.
Sinclair's case, 1 Op., 81, Lee, (1797.)
3. Yet, according to the Constitution and laws of the United States,
the Executive cannot interpose in judicial proceedings between
an individual and the commissioner, whose controversy is entitled
to a trial according to law.
Ib.
4. The Executive will not interfere with the judiciary, while it is in the
regular course of giving construction to the acts of Congress, by
directing a mollé prosequi of a proceeding against British vessel-
for a breach of the navigation act of April 18, 1818, after the
district court has condemned her to forfeiture.
The Pitt, 1 Op., 366, Wirt, (1820.)
5. Where it is claimed by a foreign minister that a seizure made by an
American vessel was a violation of the Sovereignty of his govern-
ment, and he satisfies the President of the fact, the latter may,
where there is a suit depending for the seizure, cause the Attorney
General to file a suggestion of the fact in the cause, in order that
it may be disclosed to the court.
La Jeune Eugénie, 1 Op., 504, Wirt, (1821.)
6. Where an American vessel has brought off a slave from the Cape
Verde Islands, the Executive will not interfere, further than to
direct the district attorney to inquire into the facts, and to insti
tute a prosecution if they warrant it.
Case of Antonio Soares Timas, 4 Op., 269, Nelson, (1843.)
7
'98. EXPATRIATION.
7. Under the treaty with Spain of 1819 (Pub. Trs., 716) and the act of
1829, (4 Stat., 359, R. S., § 5280,) the apprehension and delivery of
a Seaman Who is alleged to be a deserter from a Spanish ship is a
judicial act, and the State Department cannot change what a
judge has done.
Manuel Castro's case, 9 Op., 96, Black, (1857.)
8. When the courts have acquired jurisdiction of cases of maritime cap-
ture, the political department of the Government should postpone
the consideration of questions concerning reclamations and in-
demnities until the judiciary has finally performed its functions in
these cases. -
Captures on the Rio Grande, 11 Op., 117, Bates, (1864.)
9. When a court of the United States, in the exercise of its discretion,
has advisedly determined to permit a vessel, libeled for violation
of the neutrality laws, to be released on bond, the executive
Department has no power or duty to interfere with the proceed-
ings.
º * The Meteor, 12 Op., 2, Stambéry, (1866.)
|EXEPAT;"|RHAT THON,
See Iſoreign Tribunals.
1. The opinion of a British judge directing a plaintiff who had been a
British subject, but who had taken the oath of allegiance to the
Government of the United States, to be nonsuited on the ground
that the contract which forms the subject-matter of the suit was
unlawful between British subjects, and regarding the plaintiff as
such, is founded on the ancient and standing laws of Great
Britain, which can be altered only by the legislative power of
that nation.
Green's case, 1 Op., 53, Bradford, (1794.)
2. Citizens of the United States possess the right of voluntary expatria-
tion, subject to such limitations, in the interest of the State, as
the law of nations or the acts of Congress may impose. (See
R. S., § 1999.) The question examined at length in connection
with the legislation of the different States on the subject.
- Right of Expatriation, 8 Op., 139, Cushing, (1856.)
3. Any citizen of the United States, native or naturalized, may remove
from the country and change his allegiance, provided this be done
in time of peace, and for a purpose not directly injurious to the
interests of this Government. &
Anther's case, 9 Op., 62, Black, (1857.)
|EXPATRIATION. 99
4. If he emigrates, carries his family and effects along with him, mani-
fests his intention not to return, takes up his residence abroad,
and assumes the obligation of a subject to a foreign government,
this implies a dissolution of his previous relations with the United
States, and no other evidence of that fact is required by our laws.
** - Ib.
5. A native of Bavaria naturalized in America, may return to his na-
tive country, and assume his political status as a subject of the
Ring of Bavaria, if there be no law there to forbid it.
Ib.
6. The Bavarian government may require him to adjure his allegiance
to the United States in such form as they may choose to pre-
Scribe, since we, on our part, make our own regulations for the
admission of Bavarian subjects as citizens of the United States.
- Ib.
7. The natural right of every free person, who owes no debt and is not
guilty of any crime, to leave the country of his birth, in good
faith and for an honest purpose—the privilege of throwing off
his natural allegiance and substituting another allegiance in its
place—is incontestable. º
- Christian Ernst's case, 9 Op., 356 Black, (1859.)
8. Our knowledge of international law is not taken from the municipal
code of England, but from natural reason and justice, from writers
of known wisdom, and from the practice of civilized nations; and
they are all opposed to the doctrine of perpetual allegiance. Ib
9. In the United States, ever since our independence, we have upheld
and maintained the right of expatriation by every form of words
and acts, and upon the faith of the pledge which we have given
to it, millions of persons have staked their most important in-
terest.S.
Ib.
10. Expatriation includes not only emigration, but also naturalization,
which signifies the act of adopting a foreigner and clothing him
with all the privileges of a native citizen or subject. Ib
11. A foreign government cannot justify the arrest of a former subject
who was naturalized in the United States by showing that he
emigrated contrary to the laws of his native country. 1.
12. By Article I of treaty of 1870, between the United States and
Austria, (Pub. Trs., 33,) the right of an American citizen to
change his nationality and become a subject of Austria is recog-
nized, on compliance with the provisions of the treaty.
Heinrich's case, 14 Op., 154,. Williams, (187%)
* e “e
tº º &
Q
100 EXPATRIATION.
13. A doubt might be suggested whether political burdens, such as mil-
itary Service, could rightfully be imposed by Austria upon a per-
son who is by birth a citizen of this country, but who is residing
in Austria, and is, by having been born of Austrian parents tem-
porarily residing here, also an Austrian subject, without the
consent of that person, or without his signifying, by some act or
declaration, his will to be a citizen of that country.
Ib.
14. But where a person at different times obtained Austrian passports,
traveled as an Austrian subject, and resided many years in the
country, he will be considered an Austrian, on the ground that
consent, together with the laws of that country, has effected a
change in his nationality.
Ib.
15. The declaration in the act of 1868, (15 Stat., 223; R. S., § 1999,)
that the right of expatriation is “a natural and inherent right of
all people,” comprehends our own citizens as well as those of
other countries; and where a citizen of the United States emi-
grates to a foreign country, and there, in the mode provided by
its laws, formally renounces his American citizenship, with a
view to become a citizen or subject of such country, this should
be regarded by our Government as an act of expatriation.
Reply to President's Questions, 14 Op., 295, Williams, (1873.)
16. The selection and actual enjoyment of a foreign domicile, with an
intent not to return, would not alone constitute expatriation;
but where, in addition thereto, there are other acts done by him
which import a renunciation of his former citizenship, and a vol-
untary assumption of the duties of a citizen of the country of his
domicile, these, together with the former, might be treated as
presumptively amounting to expatriation, even without proof of
naturalization abroad; though the latter is undoubtedly the
highest evidence of expatriation.
Ib.
17. A native-born citizen of the United States, who has been naturalized
in a foreign country, and thus became a citizen or subject thereof,
is to be regarded as an alien ; and he cannot re-acquire American
nationality, except in conformity to the laws of the United States
providing for the admission of aliens to citizenship therein.
- Ib.
i8. The American citizen who goes into a foreign country, although he
owes local and temporary allegiance to that country, is yet, if he
performs no other act changing his condition, entitled to the pro-
tection of his own Government; and if, without the violation of any
municipal law, he should be oppressed unjustly, he would have a
* • *e *
&
sº
• * * * *
• * * *
:
:
EXTERRITORIALITY. 101
right to claim that protection, and the interposition of the Amer-
ican Government in his favor would be considered as a justifiable
interposition. But his situation is completely changed where, by
his own act, he has made himself the subject of a foreign power.
Although this act may not be sufficient to rescue him from pun-
ishment for any crime committed against the United States—a
point not intended to be decided—yet it certainly places him out
of the protection of the United States while within the territory
of the Sovereign to whom he has sworn allegiance.
Murray vs. The Schooner Charming Betsy, 2 Cranch, 64, [120.]
19. Whether a right of expatriation exists under our Constitution and
laws considered. If it does, not only a renunciation of citizenship
of the United States, but actual removal, for some lawful pur-
pose, and the acquisition of a domicile elsewhere, are necessary
to effect it.
'albot w8. Jamgon, 3 Dalla8, 133.
20. If a native American can expatriate himself, he divests himself, by
the very act of expatriation, as well of the obligations as of the
rights of a citizen. He becomes, ipso facto, an alien ; his lands
are escheatable, and the rights appertaining to citizenship, once
lost, cannot be recovered by residence, but he must go through the
formula prescribed by law for the naturalization of an alien born.
The Santissima Trinidad, 1 Brockenbrough, 478.
ExTERRITortALITY.
See Habeas Corpus.
1. A writ of habeas corpus may be awarded to bring up an American
subject unlawfully detained on board a foreign ship-of-war; the
commander being fully within the reach of, and amenable to, the
usual jurisdiction of the state where he happens to be.
Case of an American citizen on British ship, 1 Op., 47, Bradford, (1794.)
2. A British naval officer is on the same footing with every other for-
eigner who is not a public minister, as to privilege from arrest
and suit.
Captain Cochran's case, 1 Op., 49, Bradford, (1794.)
3. It is lawful to serve either criminal or civil process upon a person on
board of a British man-of-war lying within our territory.
The Chesterfield, 1 Op., 87, Lee, (1799.)
[See, however, 7 Op., 122, and 8 Op., 73, as bearing on the prin-
ciple above stated.]
102 EXTERRITORIALITY.
4. A ship entering the port of a friendly power, with slaves on board,
Would not, according to the law of nations in analogous cases, be
responsible, on that account, to the local authorities, so long as
those slaves continued on board.
Case of the Creole, 4 Op., 98, Legaré, (1842.)
5. In the Case of a compulsory entry into a foreign port, under an over-
ruling necessity, the enforcement of the municipal law of the
nation having jurisdiction of that port, to the subversion of the
authorities and rights guaranteed by its own country, is not in
any respect justifiable.
..Ib.
6. If a Vessel be compelled, by an overruling necessity, to take refuge
in the ports of another country, she is not subject to the municipal
law of that country, so far as concerns any penalty, prohibition,
tax, or incapacity, that would otherwise be incurred: Provided,
She do nothing further to violate the municipal law during her
Stay. **
Ib.
7. Some of the persons entitled to exterritoriality enumerated.
Celebration of marriages, 7 Op., 18, [20,1 Cushing, (1854.)
8. A foreign ship of war, or any prize of hers in command of a public
officer, possesses, in the ports of the United States, the rights of
exterritoriality, and is not subject to the local jurisdiction.
The President and Prize, 7 Op., 122, Cushing, (1855.)
9. A prisoner of war on board a foreign man-of-war, or of her prize,
cannot be released by habeas corpus issuing from courts either of
the United States or of a particular State.
Ib.
10. But if such prisoner of war be taken on shore, he becomes subject
to the local jurisdiction or not, according as it may be agreed
between the political authorities of the belligerent and neutral
power.
Ib.
11. The exterritoriality of foreign consuls in Turkey and other Moham-
medan countries is entirely independent of the fact of diplomatic
representation, and is maintained by the difference of law and
religion; being but incidental to the fact of the established exter-
ritoriality of Christians in all countries not Christian.
Functions of consuls, 7 Op., 342, Cushing, (1855.)
12. In virtue of the treaty between the United States and China of 1844,
(Pub. Trs., 116, 121,) all citizens of the United States in China
enjoy complete rights of exterritoriality, and are answerable to
no authority but that of the United States. The whole subject
examined. Judicial authority in China, 7 Op., 495, Cushing, (1855.)
EXTERRITORIALITY. 103.
13.
14.
15.
16.
17.
18.
19,
20.
Citizens of the United States, in common with all other foreign
Christians, enjoy the privileges of exterritoriality in Turkey, in-
cluding Egypt; the same in the Turkish regencies of Tripoli and
Tunis; and also in the independent Arabic states of Morocco and
Muscat.
- Status of Americans in Turkey, 7 Op., 565, Cushing, (1855.)
Ships of war enjoy the full rights of exterritoriality in foreign ports
and territorial waters.
The Atalanta, 8 Op., 73, Cushing, (1856.)
Merchant-ships are a part of the territory of their country, and are
so treated on the high seas, and partially, but not wholly so, while
in the territorial waters of a foreign country.
- Ib.
Crimes committed on board ship on the high seas are triable in the
country to which she belongs.
Ib.
In port, the local authority has jurisdiction of acts committed on
board of a foreign merchant-ship while in port, provided those
acts affect the peace of the port, but not otherwise; and its juris-
diction does not extend to acts internal to the ship, or occurring
On the high Seas. -
1b.
The authority of the ship's country in these cases is not taken away
by the fact that the actors are foreigners, provided they be of the
crew or passengers of the ship.
Ib.
The local authority has right to enter on board a foreign merchant-
man in port for the purpose of inquiry universally, but for the
purpose of arrest only in matters within its ascertained jurisdic-
tion.
Ib.
Eull and absolute territorial jurisdiction being alike the attribute of
every sovereign, and being incapable of conferring extra territo-
rial power, would not seem to contemplate foreign sovereigns nor
their Sovereign rights as its objects. One sovereign being in
no respect amenable to another, and being bound by obligations
of the highest character not to degrade the dignity of his nation
by placing himself or its sovereign rights within the jurisdiction
of another, can be supposed to enter a foreign territory only under
an express license, or in the confidence that the immunities be-
longing to his independent sovereign station, though not expressly
stipulated, are reserved by implication, and will be extended to
him.
Schooner Eachange vs. McFaddon, 7 Cranch, 116, [137.]
104 EXTERRITORIALITY.
21. This perfect equality and absolute independence of Sovereigns, and
this common interest impelling them to mutual intercourse, and
an interchange of good offices with each other, have given rise
to a class of cases in which every sovereign is understood to waive
the exercise of a part of that complete, exclusive territorial ju-
risdiction, which has been stated to be the attribute of every na-
tion. -
Pirst. One of these is admitted to be the exemption of the per-
son of the sovereign from arrest or detention within a foreign
territory.
Second. A second case, standing in the same principles with
the first, is the immunity which all civilized nations allow to for-
eign ministers.
Third. A third case, in which a sovereign is understood to cede
a portion of his territorial jurisdiction, is where he allows the
troops of a foreign prince to pass through his dominions.
Ib.
22. If there be no prohibition, the ports of a friendly nation are con-
sidered as open to the public ships of all powers with whom it is
at peace, and they are Supposed to enter Such ports, and to re-
main in them while allowed to remain, under the protection of
the government of the place.
The implied license, under which such vessel enters a friendly
port, may reasonably be construed, and, it seems to the court,
Ought to be construed, as containing an exemption from the ju-
risdiction of the sovereign, within whose territory she claims the
rights of hospitality.
Ib.
23. It seems to be a principle of public law that national ships of war,
entering the ports of a friendly power open for their reception,
are to be considered as exempted, by the consent of that power,
from its jurisdiction.
Without doubt the sovereign of the place is capable of de-
stroying this implication.
Ib.
24. The cases of the Cassius, 3Dallas, 121, and the Invincible, 1.Wheaton,
238, decide that neither a public vessel of another nation, nor its
officers, are liable to answer in our courts for a capture on the high
seas, but do not touch the question of jurisdiction over her prizes
lying in our ports, which extends to libels in rem for restitution
of such prizes made in violation of our neutrality.
The Santissima Trinidad, 7 Wheaton, 283.
EXTRA COMPENSATION.—EXTRADITION. 105
25. A foreign public vessel is exempted from the jurisdiction of our
courts, by an exception grounded on common usage and public
policy; but this exception does not extend to her prizes, or cap-
tured goods landed here, which are liable to the jurisdiction of
our courts for the purpose of inquiry and restitution, if a case for
it is made.
Ib.
IEXTRA (CONIIPIENSATHON.
See Compensation.
|EXTRADITHON.
1. The issue of a warrant under article 9, of the consular convention
with France, of 1788, (Pub. Trs, 222, annulled by act of 1798;
1 Stat., 578,) is within the discretion of the district judge, and such
discretion cannot be interfered with by the Supreme Court.
& Case of Henry Barré, 1 Op., 55, Bradford, (1795.)
2. If a demand were formally made that a Spanish subject or our own
citizens, heinous offenders within the dominion of Spain, should
be delivered up to that government for trial and punishment, it
would be the international duty of the United States to comply,
yet in the absence of a law directing the mode of proceeding,
there seems to be no way of effecting the delivery.
William Jones's case, 1 Op., 68, Lee, (1797.)
3. A requisition from the British minister is not authorized by the 27th
article of the treaty of 1794, (Pub. Trs., 281,) unless the persons
demanded are charged with murder or forgery committed within
the territorial jurisdiction of Great Britain.
Case of Brigstock and others, 1 Op., 83, Lee, (1798.)
4. There is nothing in the law of nations, as explained by the usage and
practice of the most respectable of them, which imposes upon us
any obligation to deliver to Great Britain a master and six sea-
men of a British vessel who had feloniously carried away the
Vessel and cargo.
Sullivan's case, 1 Op., 509, [521, J Wirt, (1821.)
5. Even if, by the law and usage of nations, the obligation existed to
deliver persons charged with crime, and were a perfect obligation,
and the proof of the guilt of the accused satisfied the requisitions
of that law, still the President has no power to make the delivery.
The Constitution, and the treaties and acts of Congress made
106 * EXTRADITION.
under its authority, comprise the whole of the President's powers.
A treaty or an act of Congress might clothe him with the power
to arrest and deliver up fugitive criminals from abroad, and it is,
perhaps, to be desired that such a power existed.
- Ib.
6. The President has no power to order the delivery of diamonds and
precious stones of the Princess of Orange, referred to in the note
of Chevalier Huygens.
Chevalier Huygens'8 application, 2 Op., 452, Taney, (1831.)
7. Nor will he be justified in directing the surrender of the person upon
whom a part of the stolen articles may have been found, as there
is no stipulation between the two governments for the mutual
delivery of fugitives from justice. Ib
8. The Executive is not authorized to deliver up to the King of Portugal
two seamen confined in Boston, who are charged by the chargé
d'affaires of His Majesty with piracy, committed on the brig Tri-
umph. There is no law of Congress which authorizes the Presi-
dent to deliver up any one found in the United States who is
charged with having committed a crime against a foreign nation;
and we have no treaty stipulations with Portugal for the delivery
of offenders.
Case of two Portuguese seamen, 2 Op., 559, Taney, (1833.)
9. Without the consent of Congress, no State can enter into any agree-
ment or compact, express or implied, to deliver up fugitives from
the justice of a foreign state who may be found within its limits.
Dewit’s case, 3 Op., 661, Legaré, (1841.)
10. According to the practice of the Executive Departments, the Pres-
- ident is not deemed to be authorized to order the delivery of
fugitives from justice in the absence of any express provision by
treaty.
Ib.
11. A fugitive from the justice of Great Britain, charged with the com-
mission of the crime of murder in Scotland, apprehended in the
United States, and examined before a commissioner, and by him
certified to be probably guilty on the evidence adduced, should
be delivered up to justice, if the evidence upon which the appli-
cation is founded be such as, according to the laws of the place
where the fugitive shall be found, would justify his or her appre-
hension and commitment for trial if the crime had there been
committed.
Christiana Cochrane's case, 4 Op., 201, Nelson, (1843.) .
12. The mode of procedure in such cases is the preferment of a com-
plaint to a judge or magistrate, setting out the offense charged
EXTRADITION. 107.
on Oath, whereupon the judge or magistrate may issue a warrant
for the apprehension of the person accused. Upon the accused
being brought before the judge or magistrate, the latter should
hear and consider the evidence of criminality; and if on such
hearing the evidence be deemed sufficient to sustain the charge,
the same should be certified to the executive authority, that a
warrant may issue for the surrender.
- & Jö.
13. A commissioner for the United States, appointed by the circuit.
court, is a magistrate within the meaning of the law and of the
treaty of Washington, and as such has power to apprehend, ex-
amine, and certify as to fugitives from justice.
Ib.
14. A requisition for a fugitive is not necessary to a preliminary exam-
ination upon which the evidence of criminality is to be heard and,
considered, but with a view only to the surrender, after the ascer-
tainment of the facts showing the party charged to be in a con-
dition which justifies the apprehension and commitment for trial
according to the laws of the place where he or she shall be found.
(Pub. Trs, 320.)
Ib.
15. The executive will not issue his warrant for the surrender of
fugitives, under the tenth article of the Treaty of 1842 with
Great Britain, (Pub. Trs., 320,) where the case does not cer-
tify the fact that an offense within the terms of the treaty has.
been committed, nor that there is such evidence of criminality as,
according to the laws of the place where the alleged fugitives.
have been found, would justify their apprehension and commit-
ment for trial if the crime had been there committed, nor that
any complaint has been made to any magistrate of the United
States, by whom such evidence had been heard.
Ba:tradition under Treaty of Washington, 4 Op., 240, Nelson, (1843.}
16. The mode provided for the surrender of persons accused of the
crimes mentioned in article 1, of the treaty with France, (Pub. Trs.,
247,) is by requisitions made in the name of the respective par-
ties through the medium of their respective diplomatic agents.
Iºa.tradition under Treaty with France, 4 Op., 330, Nelson, (1844.)
17. The surrender will be made only when the fact of the commission of
the crime shall be so established that, according to the laws of
the country in which the fugitive, or the person so accused, shall
be found, his or her apprehension and commitment for trial would
be justified if the crime had been there committed. The rule of
evidence is prescribed in the treaty.
* Ib.
108 / EXTRADITION.
18.
19.
20.
21
22
23
24
25
The international extradition of fugitives from justice is a duty of
comity, not of strict right.
Wing's case, 6 Op., 85, Cushing, (1853.)
It is the settled policy of the United States not to make such extra-
dition, except in virtue of express stipulations to that effect.
Hence the United States ought not to ask for extradition in any
case as an act of mere comity.
Ib.
Larceny is not included in the causes for extradition stipulated in
the treaty between Great Britain and the United States of 1842,
(Pub. Trs., 320.) - Ib.
[For an exhaustive consideration of the right to surrender fugi-
tive criminals in the absence of treaty provision see
Short's case, 10 Sergeant & Rawle, 125.1
The opinion of the Supreme Court of the United States in Kaine's
case, (14 Howard, 103,) considered in relation to the action of the
President. Any foreign government entitled by treaty to the ex-
tradition of a fugitive from justice may apply to the courts in the
first instance; but, if requested, the President will issue the pre-
vious authorization held to be necessary by a portion of the court
in Kaine's case.
- William Calder's case, 6 Op., 91, Cushing, (1853.)
On a party being arrested and brought before a magistrate, that
magistrate examines the case judicially; and his decision is not
subject to any direction on the part of the President. Hence the
Question of remanding the prisoner for further examination, and
the time of remanding, are questions for the magistrate to deter-
mine.
Ib.
The alleged fugitive may be arrested a second time on a new com-
plaint, either with or without a new warrant of the President.
Ib.
The question of the general power of the magistrate to remand dis-
cussed.
Ib.
Engagements of extradition, whether of fugitives from justice or from
service, stand in each case on particular stipulations of treaty,
and are not to be inferred from the “favored nation” clause in
treaties.
Case of a deserter from the Danish ship Saga, 6 Op., 148, Cushing, (1853.)
EXTRAI)ITION. 109
26. In granting his mandate at the request of a foreign government for
the purpose of commencing proceedings in extradition, the Presi-
dent does not need such evidence of the criminality of the party
accused as would justify an order of extradition; but only prima
facie evidence. *
Extradition, 6 Op., 217, Cushing, (1853.)
27. Where a court of one of the states assumes to take by habeas corpus
Out of the hands of the marshal of the United States a person
held by him as a fugitive from foreign justice, and under recla-
mation by treaty, the United States should authorize the marshal
to call in aid the services of the district attorney.
Beilbronn's case, 6 Op., 227, Cushing, (1853.)
28. Where a person, claimed as a fugitive from foreign justice, is under
examination before a commissioner of the United States, it is not
in the lawful power of a State court to revise the case on habeas
corpus and assume to overrule the commissioner.
Heilbronn's case, 6 Op., 237, Cushing, (1853.)
29. It is the right of the marshal of the United States to refuse to
have the body of the party before the State court, and it is the
duty of the courts and other authorities of the United States to
protect the marshal in such refusal by all means known to the
laws.
Ib.
30. When a commissioner of the United States has made return accord-
ing to law as to an alleged fugitive from justice, that he is law-
fully subject to extradition, it is the duty of the Secretary of
State to order the final writ of extradition, notwithstanding any
contradictory proceedings of the courts of a State.
Heilbronn's case, 6 Op., 270, Cushing, (1854.)
31. Where a marshal of the United States has in custody a fugitive
from foreign justice, under a warrant of extradition from the
proper authorities of the United States, and a State court under-
takes to usurp jurisdiction of the case, the marshal may, disre-
garding any process of the State court, take the party to the
exterior line of such State, and there deliver him to the agent of
the foreign government.
- Heilbronn's case, 6 Op., 290, Cushing, (1854.)
32. The United States will not make demand for extradition of a per-
son alleged to be a fugitive from the justice of one of the United
States, and to have taken refuge in Great Britain, except on the
exhibition of a judicial “warrant” duly issued, on sufficient proofs,
by the local authority of the State in which the crime is alleged.
- Wm. Brown's case, 6 Op., 485, Cushing, (1854.)
T 10 EXTRADITION.
-33. Evidence of the forging of checks on the communal chest of Bres-
lau, in Prussia, is sufficient cause for the issue of a warrant for
judicial inquiry, with a view to the extradition of the party, under
the treaty between the United States and Prussia of 1852. (Pub.
Trs, 660.)
Richard Sachs’s case, 6 Op., 761, Cushing, (1854.)
34. A mere notification by the local officer of a foreign government of
the escape of an alleged criminal is not sufficient prima facie evi-
dence of a case, to justify the preliminary action of the President.
Maria. Theresa Gerk's case, 7 Op., 6, Cushing, (1854.)
/ 35. All demands of international extradition must emanate from the
Supreme political authority of the demanding state.
- Ib.
36. A foreign mandat d’arrêt, setting forth the offense of a fugitive
from the justice of a foreign country, within the terms of any
treaty of extradition, such mandat coming through the proper
political channel, is sufficient foundation for the issue of the
President's warrant authorizing the institution of proceedings
before the judicial authorities of the United States.
Sucillon's case, 7 Op., 285, Cushing, (1855.)
37. By the treaty of 1842 between the United States and Great Britain,
(Pub. Trs., 315,) the expense attending the proceedings in ex-
tradition is to be borne by the government making the recla-
mation. But where, in consequence of conflict between the judi-
cial authorities of the United States and those of a State, the
latter aiming to prevent the extradition, the United States inter-
venes to maintain its own dignity in the premises, the special
expenses of such intervention should be defrayed by the United
States.
Heilbronn's case, 7 Op., 396, Cushing, (1855.)
38. Emigrants and exiles for cause of political difference at home are
entitled to asylum in this country, but not malefactors; on the
contrary, the foreign government which reclaims its fugitive
malefactors is serviceable to us by ridding us of the intrusive
presence of crime.
Sucillon's case, 70p., 536, Cushing, (1855.)
239. Hence, when reclamation of a fugitive from justice is made under
treaty stipulation by any foreign government, it is the duty of
the United States to aid in relieving the case of any technical
difficulties which may be interposed to defeat the ends of public
justice, the object to be accomplished being alike interesting to
both governments, namely, the punishment of malefactors, who
are the common enemies of all society.
Ib.
EXTRADITION. 111
40,
41.
42.
43.
44.
45.
46.
47.
The ordinary expenses, including fees of counsel, attending the
process of international extradition, are to be defrayed by the
demanding government. *
Sucillon's case, 7 Op., 612, Cushing, (1855.)
IExtradition cannot be demanded of France by the United States
in the case of a breach of trust in the State of California made
grand larceny by the laws of that State. -
Case of embezzlement, 7 Op., 643, Cushing, (1856.)
The term “public officers” in the treaty of 1843 between the United
States and France, (Pub. Trs, 247,) or, as it stands in the French
copy, “dépositaires publics,” signifies officers or depositaries of the
Government only, and does not comprehend officers of a railroad
company, notwithstanding the latter was authorized and subven-
tioned by the French government.
Request of Comte de Sartiges, 8 Op., 106, Cushing, (1856.)
To justify the commencement of process in extradition, it must ap-
pear that the criminal acts charged were committed within the !,
territorial jurisdiction of the demanding government.
David's case, 8 Op., 215, Cushing, (1856.)
Any competent magistrate may take jurisdiction of a question of
international extradition voluntarily; that is, without the pre-
vious application of the foreign government, or issue of the pre-
paratory letters permissive of the President.
. Wetherwaa's case, 8 Op.,240, Cushing, (1856.)
[The question arose, however, under the treaty of 1842 with
Great Britain.]
There can be no actual extradition without proper requisition to
that effect, addressed by the foreign government to the Secretary
of State.
- Ib.
Although extradition cannot be ordered by the President on mere
judicial documents, but requires executive requisition, still, it
may be effected, in the absence of any diplomatic minister of the
demanding government, through other intermediate agencies,
recognized by the law of nations.
Ib.
An alleged criminal is subject to extradition, notwithstanding that
he may have come to this country otherwise than as an ap-
parent fugitive on account of the particular crime; for the trea-
ties apply not only to persons seeking an asylum here professedly,
but to such as may be found in the country.
Javid's case, 8 Op., 306, Cushing, (1857.)
\,
f
112 EXTRADITION.
48. It is the duty of the United States to provide a place of imprison-
ment for persons detained for extradition at the instance of
foreign governments. -
Sundry French 8wbjects, 8 Op., 396, Cushing, (1857.)
49. A clerical error in letters missive, authorizing a foreign government
to institute proceedings of extradition in the United States, is of
no account, such a document not being a judicial paper in any
sense, but only a political commission or license.
Charpentier's case, 8 Op., 420, Cushing, (1857.)
50. The laws with reference to extradition do not require the proceed-
ings against a foreign criminal Or a deserting seaman to be either
carried on, or approved, by the attorney of the United States
for the proper district.
Duties of district attorneys, 9 Op., 246, Black, (1858.)
51. In the case of the extradition of a fugitive from justice, the act
of 1848, (9 Stat., 302; R. S., § 5270,) does not require or authorize
the issuing of a warrant by the State Department until the facts
of the case are judicially ascertained and certified.
- Tyler's case, 9 Op., 379, Black, (1859.)
52. Attorneys of the United States in the several districts are not
obliged by any act of Congress to appear on the part of foreign
governments claiming the extradition of fugitives, and if the
minister or agent of an accusing foreign government needs legal
advice, or desires to have a case presented to the judicial authori-
ties through the medium of a professional lawyer, he may select
whom he pleases for that purpose. & *
Costs in eaſtradition cases, 9 Op., 497, Black, (1860.)
53. By the extradition treaty between the United States and Prussia of
1852, (Pub. Trs. 660,) the expenses of the apprehension and de-
livery of a fugitive must be defrayed by the party who makes
the requisition and receives the fugitive. Under that treaty, a
commissioner or marshal may lawfully demand Such fees as are
usual for analogous services rendered to the United States. Ib
54. In a case of extradition of a fugitive from the justice of a foreign
country, the judge or magistrate acts under special authority con-
ferred by the treaties and acts of Congress, and as no appeal
from his decision is given by the law under which he acts, no
right of appeal by either party exists. -
Case of Trangott Muller, 10 Op., 501, Coffey ad int., (1863.)
55. A discharge by a district judge of a person apprehended as a fugi-
w tive from justice does not preclude, in a proper case, his re-arrest
under the warrant of another judge, with a view to a re-examina-
tion of the case.
- Ib.
EXTRADITION. 113
56. A certificate under the act of 1860 (12 Stat., 84; R. S., § 5271)
should show upon its face that the officer who made it is the
principal diplomatic or consular officer of the United States
resident in the country making the demand of extradition, and
should declare that the documents to which it is attached are
legally authenticated, according to the laws of the country from
which the fugitive escaped, so as to entitle them to be received
as evidence for similar purposes by the tribunals of that country.
Ib.
57. Robbery on the lakes is piracy within the meaning of our extradition
treaty with Great Britain of 1842, (Pub. Trs, 320,) but inas.
much as the parties engaged in the outrages on Lake Erie Were
guilty of robbery and assault with intent to commit murder, the
Secretary of State was advised, in view of the disputed question
of piracy on the lakes; that their extradition should be demanded
at the hands of the Canadian authorities for those offenses.
Lake Erie pirates, 11 Op., 114, Bates, (1864.)
58. Where a warrant was issued by the State Department for the extra-
dition of a fugitive from foreign justice, who was then in the
custody of the marshal, and such fugitive was afterwards dis-
charged from custody under section 4 of the act of 1848, (9 Stat.,
302; R. S., § 5273,) in consequence of delay in appointing an
agent to receive the prisoner, the latter cannot be again arrested
under the same warrant of extradition. -
Vance's case, 12 Op., 75, Stambery, (1866.)
59. A Warrant of extradition issued by the State Department is not a
warrant of arrest, and cannot be used for the purpose of arrest.
Ib.
60. Under the extradition treaty with France of 1843 (Pub. Trs., 247)
a public officer of the United States who embezzles moneys
of the United States intrusted to his care, and escapes from jus-
tice to the territory of France, is liable to be returned to this
country for trial ; such crime being here punishable with in-
famous punishment. - -
Gilson's case, 12 Op., 326, Stambery, (1867.)
61. A crime committed by a Prussian subject in Belgium, although jus-
ticiable in Prussia, according to Prussian law, does not fall within
the provision of the treaty between the United States and Prussia,
of 1852, (Pub. Trs., 660,) for the delivering up of persons, who,
being charged with certain crimes “committed within the juris-
diction of either party,” shall be found within the territories of
the other.
Carl Vogt's case, 14 Op., 281, William8, (1873.)
8 -
114 IEXTRADITION.
This opinion is in direct conflict with the opinion of Blatch-
ford, J., in the same case.
In re Stupp, 11 Blatchford, 124.
62. Where a fugitive is extradited under the treaty of 1842 between
Great Britain and the United States, (Pub. Trs., 320,) and where
the surrender is effected pursuant to the British act of 1870, the
provisions of the act of 1870 have no bearing whatever upon the
rights or duties of the government under the treaty.
Lawrence's case, – Op., Phillips, acting, July, 1875.
63. The treaty of 1842 does not forbid the trial of a fugitive delivered
under it for an offense other than that for which he was surren-
dered.
The practice and decisions in the United States, the decisions in
Canada, and the understanding of the executive and judicial au-
thorities of Great Britain have all agreed in considering that fu-
gitives when surrendered to justice are surrendered absolutely,
and that a prisoner so surrendered is subject to trial for offenses
other than the particular offense for which he was surrendered.
Ib,
64. The statute of 1869 (15 Stat., 337, R. S., § 5275) in no respect limits the
right of the Government as to trials of surrendered criminals.
- Ib.
[NOTE.-This opinion was prepared at the outset of the ques-
tions which arose with Great Britain with reference to the cases of
Lawrence and Winslow. Upon the point that a surrendered
criminal may, in the absence of any prohibition in the treaty, be
tried for offenses other than those for which he was surrendered,
see, also, United States v. Caldwell, (post,) 8 Blatchford, 131;
United States vs. Lawrence, (post,) U. S. C. C. So. Dist. N. Y.,
Benedict, J., March, 1876; Adriance v. Lagrave, 59 N. Y. R., 110.
And in Canada, Paxton's case, 10 Low. Can. Rep., 212, 11, 352;
Von Aernam's case, Up. Can. Rep., 4 C. P., 288; in re Israel
Rosenbaum, Supreme Ct. Canada, 1874. See, also, Ex. Doc. H. R,
173., 44 Cong., 1 sess.]
65. George Holmes was arrested in the State of Vermont on a Warrant
or order of the governor of the State, addressed to a sheriff, stat-
ing that an indictment had been found against him for murder in
Canada, and that as it was fit and expedient that he should be
made amenable to the laws of the country, commanding the sheriff
to convey him to the border between Canada and Vermont, and
deliver him to the Canadian authorities.
A habeas corpus was issued by the supreme court, and the pris-
oner was remanded, and a writ of error taken to the Supreme
Court of the United States.
The court being equally divided as to the question of jurisdic-
tion, the writ of error was dismissed.
Holmes vs. Jennison, 14 Peters, 540,
ExTRADITION. . 115
66. The court, however, considered at length the question of the author-
ity of the governor of the State of Vermont to surrender a fugitive
criminal, and Chief-Justice Taney, in his opinion, in which Justices
Story, McLean, and Wayne concurred, stated, as the conclusion
of the majority on this point—
“Upon the whole, therefore, my three brothers and myself,
after a most careful and deliberate examination, are of opinion
that the power to surrender fugitives, who, having committed
offenses in a foreign country, have fled to this for shelter, belongs,
under the Constitution of the United States, exclusively to the
Federal Government, and that the authority exercised in this in-
stance by the governor of Vermont is repugnant to the Constitu-
tion of the United States.”
Ib., 579.
NOTE.—After this opinion EIolmes was discharged by the su-
preme court of Vermont on habeas corpus. A similar question arose
in New York in 1874, Governor Dix having ordered the surrender .
of Carl Vogt, alias Stupp, after a refusal by the President to sur-
render him to Germany, as the offense was committed out of her
territory, or to Belgium, in the absence of treaty provisions. The
court unanimously agreed in discharging the prisoner, on the
ground that the governor had no power to make the surrender.
The People, Barlow vs. Curtis, 50 N. Y. R., 321.
67. Where one was imprisoned under a warrant from a district judge of
the United States to abide the order of the President in respect
of making extradition of him as fugitive from justice under the
convention with France of 1843, (Pub. Trs., 247,) it was held
that the Supreme Court had not jurisdiction to issue a writ of
habeas corpus to inquire into the cause of his commitment.
In the matter of Metzger, 5 Howard, 176.
68. On June 14, 1852, a complaint on oath was presented to a commis-
sioner of the United States by the British consul at New York,
charging that Thomas Kaine had committed a murder in Ireland,
that a warrant had been issued for his apprehension in Ireland,
that he was in the United States; and requesting his apprehension
for extradition under the treaty of 1842. -
After an arrest and examination, the commissioner ordered him
to be committed for extradition, to abide the order of the Presi-
dent, and he was held in custody by the marshal. A writ of
habeas corpus issued from the circuit court, which was dismissed.
Application was made to the Supreme Court for a writ of habeas
corpus. On this application, four of the judges held that the writ
should be refused on the merits.
The Chief Justice and two of the judges held that no proceed.
116 EXTRADITION.
ings under the treaty could be entertained without a requisition
made on the President, and his authority obtained for that pur-
pose; and that a United States commissioner was not an officer
within the treaty or acts of Congress to hear and determine the
Question of criminality; and one justice held that the court had
no jurisdiction to grant the writ asked, but did not express an
Opinion on the merits.
In re Kaine, 14 Howard, 103.
The prisoner was afterward brought before Mr. Justice Nelson
at chambers, and discharged. Ex parte Kaine, 3 Blatchford, 1.
69. Thomas Nash, alias Robins, was charged with having committed
murder on board the Hermione, a British war-vessel, on the high
seas; requisition was made by the British minister for the deliv-
ery of the offender under the twenty-seventh article of the treaty
of 1794. (Pub. Trs., 281.) The district judge of South Carolina,
before whom the prisoner was brought by habeas corpus, made an
order, as is stated, at the particular request of the President of
the United States, that, as there was sufficient evidence of crim-
inality to justify the apprehension and commitment for trial of the
prisoner, he be delivered over by the marshal of the court to the
British consul under the twenty-seventh article of the treaty.
Bee's Adm. Rep., 367.
NOTE.-This was the celebrated case of Robins, who claimed to
have been an impressed American seaman. This surrender gave
rise to attacks upon President Adams, and the speech of Mr. Mar-
shall, afterward Chief Justice, is attached as a note to the above
report. (See Wharton's State Trials, 392–456.)
70. Where a shot had been fired from an American vessel in the harbor
of a foreign port, killing a person on board a foreign vessel lying
in the port, and the prisoner was acquitted on account of want of
jurisdiction of the case: Held, that it was not the duty of the
court, there being no treaty stipulations with the foreign country
to send back the offender to the foreign government, whose laws
he had violated, that he might be tried.
- United States vs. Davis, 2 Summer, 482.
71. Where a portion of a British crew were charged with piracy com-
mitted on board a British vessel, contrary to acts of Parliament,
not being piracy under the law of nations, and were imprisoned
under a warrant issued from the Secretary of State at the request
of the British minister, under the treaty of 1842: (1) Held, that
the prisoners might be arrested and surrendered without any
special act of Congress to carry the treaty into effect; (2) that
EXTRADITION. 117
without legislation as to the means of enforcing the treaty the
prisoners might be examined and, if probably guilty, be ordered
into custody, with a view to surrender; (3) that the order of sur-
render might be signed by the Secretary of State and issued from
the State Department. The general question of the right to sur-
render in the absence of legislation considered. /
- Case of the British prisoners, 1 Woodbury and Minot, 66.
72. A foreign government has no right, by the law of nations, to
demand of the Government of the United States a surrender of a
citizen or subject of such foreign country who has committed a ”
crime in his own country, and is afterward found within the limits
of the United States. It is a right which has no existence with-
out, and can only be secured by, a treaty stipulation.
Case of José Ferreira dos Santos, 2 Brockenbrough, 493.
73. Under the treaty with Great Britain of 1842, (Pub. Trs., 320,)
and the acts of Congress for carrying into effect its stipulations,
no authority is required from the Executive Department of the
United States to enable a judge, magistrate, or commissioner to
issue a warrant for the arrest of an alleged fugitive from jus-
tice.
Ea; parte Ro88, 2 Bond, 252.
74. The circuit court has power on a writ of habeas corpus, in conjunc-
tion with a writ of certiorari, to revise the action of a commis-
sioner in committing a fugitive for extradition.
In re Phillip Henrich, 5 Blatchford, 414.
75. Where a crime is forgery the complaint may charge more than one
forgery.
Ib.
76. The effect of the act of June 22, 1860, (12 Stat., 84; R. S., § 5271,)
upon evidence in extradition cases discussed. -
Ib.
The following cases seem opposed to the first proposition decided
in this case: In re Veremaitre, 9 N. Y. Legal Obs., 137; In re
Kaine, 10 N. Y. Legal Obs., 257; In re Heilbronn, 12 N. Y. Legal
Obs., 65; Ex parte Van Aernam, 3 Blatchford, C. C. R., 160.
Section 5271 is now amended by act of June 19, 1876, chapter
133, laws 1876.
77. A mandate for the apprehension of a fugitive from foreign justice
purporting to be issued by the Government of the United States,
and issued under the hand of the Secretary of State and the seal
of the Department of State, is a sufficient mandate.
- In re François Farez, 7 Blatchford, 34.
118 EXTRADITION,
78.
80.
81.
82.
83.
84.
In a complaint praying for the issue of a warrant it is not enough
to charge an offense generally, but the offense charged should be
clearly shown to be within the treaty. So that it is not enough
to charge a forgery, but the time and place of the offense and the
nature of the forgery must be set forth.
* Ib.
. A complaint before a commissioner in an extradition case, verified
by the consul of a foreign government, in which he charges the
offense properly, is sufficient, if made by him officially, although
he does not make the averments on his personal knowledge of the
facts.
In re François Farez, 7 Blatchford, 345.
It is not a necessary preliminary step to an investigation under an
extradition treaty to show that a Warrant, was issued abroad
against the offender, and, therefore, the complaint need not state
that fact.
rº Ib.
Under the convention for extradition between the United States
and Switzerland, (Pub. Trs., 748,) which provides for the
delivery of persons charged with certain crimes “when these
crimes are subject to infamous punishment,” it is sufficient if the
crime be subject to infamous punishment in the country where it
was committed without its being also subject to infamous punish-
ment in the country from which the extradition is demanded,
Ib.
Where depositions from abroad are put in evidence in an extradi-
tion case, under the act of 1860, (12 Stat., 84; R. S., § 5271,)
where the charge is forgery, and it appears by them that the
forged papers were produced before and deposed to by the wit-
nesses giving the depositions, it is not necessary that the forged
papers should be produced here before the commissioner. Ib
What is a sufficient certificate of authentication of papers under
Said act of 1860.
Ib.
Showing that forgery is punishable by imprisonment in the state
prison by the laws of the canton of Berne, Switzerland, in which
canton the crime was committed, is showing that it is subject to
infamous punishment in the country where it was committed,
within the meaning of the convention with Switzerland.
Ib.
. On an investigation before a commissioner, sitting in the State of
New York, in an extradition case under said convention, the
EXTRADITION. 119
offender has a right to be examined as a witness in his own be
half. -
What is Safficient evidence to warrant a commitment, with a
view to extradition under said conventions.
Ib.
Above decision approved. -
In re François Farez, 7 Blatchford, 491.
86. The defendant was indicted for bribing an officer. He pleaded that
he was brought into the United States on a charge of forgery,
under the extradition treaty of 1842, (Pub. Trs., 320,) and that
bribery was not within the treaty. On demurrer to the plea :
Held, that while abuse of extradition proceedings, or want of
good faith, would be a cause of complaint between the two gov-
ernments, such complaints cannot be investigated by the courts;
and that the prisoner being within the jurisdiction of the court
and charged with an offense, the court has jurisdiction to try
him.
United States vs. Caldwell, 8 Blatchford, 131.
87. Where an executive mandate authorizing proceedings for extradi-
tion is a necessary prerequisite under any treaty, it is sufficient
for it to describe the offense charged in the very terms of the
treaty.
In re Macdonnell, 11 Blatchford, 79.
88. Whether a mandate from the executive department of the Govern-
ment is a necessary prerequisite to proceedings for extradition.
Quare.
Ib.
89. It is not proper to resort to habeas corpus during the progress of
proceedings before the commissioner, to review questions of evi-
dence.
Ib.
90. The extradition convention of 1852 between the United States and
Prussia, (Pub. Trs., 660,) for “the mutual delivery of criminals,
fugitives from justice,” in certain cases provides that the contract-
ing parties shall, on requisition, deliver up to justice all persons
who, being charged with the crimes therein specified, “committed
within the jurisdiction of either party, shall seek an asylum or
shall be found within the territories of the other.” S., alleged to
be a native of Prussia, and since his birth and still a subject
of the King of Prussia, was arrested in the United States, for
extradition to Prussia, charged with having committed at
Brussels, in Belgium, “and within the legal jurisdiction of
Prussia,” crimes specified in said convention. It was alleged,
inasmuch as such crimes were, at the time they were committed,
120 EXTRADITION.
punishable by the laws of Belgium, that S., being, when they
were committed, a subject of Prussia, was by the laws of Prussia
subject to be punished for said crimes in Prussia; that a prose-
cution against him therefor had been commenced in Prussia, and
a warrant of arrest had been issued against him by the proper
judicial tribunal in Prussia having jurisdiction thereof; and
that, immediately after committing the crimes he had fled
from the justice of Belgium and Prussia. There was no extradi-
tion treaty between the United States and Belgium. Held, that
the case was one within the said convention.
In re Joseph Stupp, 11 Blatchford, 124.
91. The provisions for extradition contained in the treaties and conven-
tions for that purpose between the United States and foreign
countries, considered as bearing on the meaning of the word
“jurisdiction” used therein.
Out of seventeen of those treaties and conventions, which are
now in force, all but one provide for the delivery of persons
charged with crimes committed within the “jurisdiction” of one
party, who shall seek an asylum within the “territories” of the
Other.
Ib.
92. The treaties between the United States and foreign countries, re-
specting the jurisdiction of the United States over crimes com-
mitted in those foreign countries, considered, as well as the laws of
the United States passed in pursuance of the provisions of those
treaties, and to carry them into effect, and the practical execu.
tion of those laws.
Ib.
93. The laws of the United States respecting the jurisdiction of the
|United States over crimes not committed within the physical
territory of the United States, other than laws passed in pur-
suance of treaties, considered as showing an assumption by
the United States of jurisdiotion over offenses committed out-
side, not only of the physical territorial limits of the United
States, but outside of the quasi territorial limits of the United
States, such as on an American vessel on the high seas, and out-
side of territorial limits granted by treaty.
Ib.
[NOTE.-After this decision was made the examination in the
matter before the commissioner was proceeded with, and re-
sulted in commitment of the prisoner to await the issuing of a war-
rant for his surrender. The Secretary of State submitted the ques-
tion involved to the consideration of the Attorney-General, who
gave the opinion herein referred to, of 21 July, 1873, [see ante, para-
graph 61, and awarrant was refused. The prisoner not having been
delivered up within two calendar months after his final commit.
EXTRADITION. 121
ment, an application, under section 4 of act 12 August, 1848, (9
Stat., 302, R. S., § 5273,) was made to Judge Blatchford, on notice
to the Secretary of State, to discharge the prisoner from custody,
and he was discharged.] -
94, While the relator was lawfully held in custody, under a valid war-
rant of arrest, in an extradition case, and the inquiry thereunder
was being proceeded with, a second warrant, on a new complaint,
for a distinct offense, for his extradition was issued. Afterward
he was discharged from the arrest under the first warrant for
want of sufficient evidence to justify his commitment, and he was
hereafter arrested under the second warrant. Held, that the
latter arrest was not invalid.
In re Macdonnell, 11 Blatchford, 170.
95. Under sec. 2 of the act of 1848, (9 Stat., 302, R. S., § 5271,) as sup-
plemented by the act of 1860, (12 Stat., 84,) copies of depositions
taken in London, before the lord mayor of London, and certified
under his hand to be copies of the depositions on which he issued
a warrant of arrest against the person charged, and further cer-
tified by the minister of the United States in Great Britain to be
so authenticated as to entitle them to be received for similar
purposes by the tribunals of Great Britain, are competent evidence
in an inquiry, under a warrant of arrest, in an extradition case.
* - Io.
96. In cases where a treaty of extradition with a foreign country for the
surrender of fugitives from justice does not require the issuing of
an Executivemandate, as a prerequisite to the entertaining of pro-
ceedings, and the issuing of a warrant of arrest, by a magistrate,
such mandate is not necessary.
In re Hermann Thomas, 12 Blatchford, 370.
97. The convention for extradition between the United States and
Bavaria of 1853 (Pub. Trs, 42) was not abrogated by the
operation of the constitution of the German Empire, adopted in
1871, as affecting the further independent existence of Bavaria.
Ib.
98. It is not a necessary preliminary to an investigation here, under an
extradition treaty, that a warrant of arrest should have been is-
sued, or proceedings had against the accused, in the foreign juris-
diction.
Ib,
99. Under the convention for the extradition of fugitives from justice,
between the United States and Italy, of 1868, (Pub. Trs., 436,) a
person may be surrendered for the crime of murder committed
in Italy before the making of the convention.
In re Angelo de Giacomo, 12 Blatchford, 391.
122 FXTRADITION.
100. The various extradition treaties between the United States and
foreign countries examined, with a view of showing that some,
on their face, exclude surrender for prior crimes, while others do
not, and that prior crimes are included, where the language is
capable of a construction including them, unless they are expressly
excluded.
Ib,
101. A person who has committed a crime abroad, and come to the
United States before the making of an extradition treaty provid-
ing for a surrender for such crime, has not thereby acquired a
right of asylum of which he cannot be deprived. n
102. The restrictions in Article 4 and Article 5 of the amendments
to the Constitution of the United States have no relation to the
subject of extradition, as regulated by convention and by statute.
Ib.
103. Such convention, construed as covering the case of a crime com-
mitted before the treaty was made, is not open to the objection
that it is a bill of attainder, or an ea; post facto law, within the
meaning of Art. I, section 9, of the Constitution of the United
States. -
Ib
104. After the commitment of an accused for extradition, and after a
discharge on habeas corpus has been refused, the President may
lawfully decline to issue a warrant of surrender, either because
the offense charged is not embraced in the treaty, or because the
evidence before the commissioner was insufficient ; but no appeal
or method of review is given to any court or judicial officer.
In re Joseph Stupp clias Vogt, 12 Blatchford, 501.
105. The provisions of the Revised Statutes with reference to the issue of
writs of habeas corpus and certiorari examined.
Ib.
106. The provisions of the act of August 12, 1848, (9 Stat., 302,) and of
June 22, 1860, (12 Stat., 84,) and of R. S., § 5271, as to document-
ary evidence in extradition cases, considered.
- Ib.
|NOTE.-After the above decision, § 5271 was amended by the
act of June 19, 1876. (Chap. 133, laws 1876.)]
107. The accused was charged with Several forgeries, and pleaded that,
having been surrendered for a single forgery under the British
act of 1870, he could be tried for no other offense: Held, that ex-
tradition proceedings by their nature do not secure to the crim-
inal surrendered immunity from prosecution for any offense other
than that for which he was Surrendered.
United States v8, Lawrence, U. S. C. C. So. Dist. N. Y., March, 1876.
EXTRA WAGES-FLORIDA. 123
108. Nor is such immunity given by the treaty of 1842 with Great Brit-
ain, nor by the construction placed by the two governments on
that treaty, nor by the acts of Congress of 1848 and 1869, (R. S.,
§§ 5272–5275,) nor by the British extradition act of 1870.
Ib.
EXT "R.A. WAGGAE.S.
See Seamen.
“FAvorted NATIONs.”
See Treaties.
1. Engagements of extradition, whether of fugitives from justice or
from service, stand in each case on particular stipulations of
treaty, and are not to be inferred from the “favored nation” clause
in treaties.
Case of a deserter from the Danish ship Saga, 6 Op., 148, Cushing, (1853.)
FEEES.
See Consular Officers.
FLORHHBA.
See Treaties—Spain.
1. The 6th article of the treaty of cession (Pub. Trs., 712) con-
tains the following provision : “The inhabitants of the terri-
tories which his Catholic Majesty cedes to the United States by
this treaty, shall be incorporated in the Union of the United States,
as soon as may be consistent with the principles of the Federal
Constitution, and admitted to the enjoyment of the privileges,
rights, and immunities of the citizens of the United States.”
This treaty is the law of the land, and admits the inhabitants of
Florida to the enjoyment of the privileges, rights, and immuni-
ties of the citizens of the United States. It is unnecessary to
inquire whether this is not their condition, independent of stipu-
lation. They do not, however, participate in political power;
they do not share in the government till Florida shall become a
State. -
All the laws which were in force in Florida while a province of
124 FOREIGN CONSULS.
Spain, those excepted which were political in their character,
which concerned the relations between the people and their sov-
ereign, remained in force until altered by the Government of the
United States. Congress recognized this principle by using the
words “laws of the Territory now in force therein.” No laws
could then have been in force but those enacted by the Spanish
Government. -
American Insurance Co. vs. Canter, 1 Peters, 542, [544.]
2. The legislation of the United States with reference to the acqui.
Sition of Florida considered.
Foster v8. Neilson, 2 Peters, 253.
United States v8. Arredondo, 6 Peters, 691.
United States vs. Clarke, 8 Peters, 436.
Mitchel vs. United States, 9 Peters, 711.
3. The act of Congress of June 22, 1860, had for its object the
final adjustment of land-claims and to validate grants made by
the Spanish government to bona-fide grantees of land within the
disputed territory while that government remained in possession
of the territory
United States vs. Lynde, 11 Wallaco, 632, L644.]
- FºEM&N CONSTIJHLS,
1. A riot before the house of a foreign consul by a tumultuous assem-
bly, requiring him to give up certain persons supposed to be
resident with him, and insulting him with improper language, is
not an offense within the crimes act of April 30, 1790, (1 Stat.,
117; R. S., § 4062,) and therefore the offender cannot be legally
prosecuted in the courts of the United States.
Cage of the British consul at Norfolk, 1 Op., 41, Bradford, (1794.)
2. A consul is not privileged from legal process by the general laws of
nations, nor is the French consul-general by the consular conven-
tion between the United States and France of 1788, (Pub. Trs.,
219—annulled by act of 1798—1 Stat., 578.)
Letombe's case, 1 Op., 77, Lee, (1797.)
3. In a suit brought against a consul-general of France for transactions
of a public nature, and in which he acted as the commercial agent
of his country, the President of the United States has no consti-
tutional right to interpose his authority, but must leave the mat-
ter to the tribunals of justice. Ib
4. Foreign consuls are bound to appear only in the Federal courts; the
Constitution and laws, contemplating the responsibility of con-
suls, having provided these tribunals, in exclusion of the State
courts, in which they shall answer.
Villavaso's case, 1 Op., 406, Wirt, (1820.)
FOREIGN CONSULS. 125
5. Foreign consuls and vice-consuls are not public ministers within the
law of nations, or the acts of Congress, but are amenable to
the civil jurisdiction of our courts; and in the case of the Genoese
consul (2 Dallas, 297) it was held that they were not privileged
from prosecutions for misdemeanors.
Ib.
6. The President cannot interfere in such a case, but where a privilege
is claimed a plea may be entered to the jurisdiction of a State
court, or, if in a national court, the consul may bring the ques-
tion before the Supreme Court. -
- - Ib.
7. The claim of the French envoy for the exercise of judicial power by
the consul of his government in the port of Savannah is not war-
ranted by subsisting treaties. w
Claim of the French minister, 2 Op., 378, Berrien, (1830.)
8. The President cannot concede such jurisdiction on the rule of reci-
procity.
Ib.
9. The principles of international law, as they are recognized in Europe,
afford no warrant for the exercise of judicial powers by consuls,
but the rights and duties of those functionaries depend, both for
their authority and extent, upon the treaties subsisting between
the governments exchanging this species of commercial agent.
- - Ib.
10. Foreign consuls are entitled to no immunities beyond those enjoyed
by foreigners coming in a private capacity to this country, ex-
cept that of being sued and prosecuted exclusively in the Federal
courts. Whenever a foreign consul is guilty of illegal or improper
Conduct, he becomes liable to a revocation of his exeguatur, and
to be punished according to our laws, or he may be sent back to
his own country, at the discretion of our Government. -
Immunities of foreign consuls, 2 Op., 725, Butler, (1835.)
11. Foreign consuls are not exempted either by treaty or by law from
the penal effect of the statute forbidding the enlistment of
troops in the United States for the military service of a foreign
Country.
British consul’s case, 7 Op., 367, Cushing, (1855.)
12. The estates of foreigners dying in the United States are settled by
the local authorities.
Estates of foreign decedents, 8 Op., 98, Cushing, (1856.)
13. The consul of the decedent's country can intervene of right only by
Way of Surveillance and Without jurisdiction.
Ib.
126 FOREIGN CONSULS.
14. Citizens of the United States who hold foreign Consulates in the
15.
16.
17.
18.
19.
United States are not exempt from jury duty or service in
the militia by the law of nations or by the Constitution and laws
of the United States, nor unless exempted by the statutes of that
State of the Union in which they may respectively reside.
Citizens—foreign consuls, 8 Op., 169, Cushing, (1856.)
Foreign consuls have no right, on the trial of a person whose acts
affect them as accomplices, to interpose by letter; but may ap-
pear as witnesses, or by counsel, in aid of the defense of the per-
Son indicted. A.
Rights of consuls, 8 Op., 469, Cushing, (1855.)
No foreign power can, of right, institute or erect any court of judi-
cature of any kind, within the jurisdiction of the United States,
but such only as may be warranted by and be in pursuance
of treaties. The admiralty jurisdiction, which has been exercised
in the United States by consuls of France, not being so warrant-
ed, is not of right.
Glass v8. Sloop Betsey, 3 Dallas, 6, [16.]
A consul, though a public agent, is supposed to be clothed with au-
thority only for commercial purposes. He has an undoubted
right to interpose claims for the restitution of property belonging
to subjects of his own country, but it is not competent for him,
without the special authority of his government, to interpose a
claim on account of the violation of the territorial jurisdiction of
his country.
The Anne, 3. Wheaton, 435, [445.)
A vice-consul, duly recognized by our government, is a competent
party to assert or defend the rights of property of individuals of
his nation, in a court of admiralty.
The Bello Corrunes, 6 Wheaton, 168.
In the absence of specific powers from competent authority, he has
not the right to receive, in his public character, the proceeds of
property libeled.
Ib,
. On a writ of error to a State court, the record of which was under-
stood to show that the character of consul-general of the King
of Saxony did not exempt the defendant from being sued in the
State court, the judgment was reversed. -
Davis vs. Packard, 7 Peters, 276.
. This is not a mere personal privilege. It is a privilege of the for-
eign sovereign that his representative shall be sued only in the
courts of the United States, with which Government alone he has
relations; and it is not waived by an omission to plead it to the
action.
Ib.
F'OREIGN CONSULS. 127
22. A contract made by a consul of a neutral power, with the citizen of
a belligerent State, that he will “protect” with his neutral name,
from capture by the belligerent, merchandise which such citizen
has in the enemy's lines, is against public policy, and void.
Coppell vs. Hall, 7 Wallace, 542.
23. No private person can interpose in a case of prize and make claim
for the restoration of captured property on the ground that the
capture was made in neutral waters.
Whatever claim is made must be presented by the neutral nation
whose rights have been infringed. Even a consul, by virtue of
his office merely, cannot interpose.
The Lilla, 2 Sprague, 177.
24. A consul of a foreign power, though not entitled to represent his
sovereign in a country where the sovereign has an ambassador, is
entitled to intervene for all subjects of that power interested.
Robson v3. The Huntress, 2 Wallace, jr., 59.
25. A consul is not entitled by the law of nations to the immunities and
privileges of an ambassador or public minister. He is liable to
civil suits, like any other individual, in the tribunals of the
country in which he resides.
- Gittings vs. Crawford, Taney's Dec., 1.
26. Article 10 of the treaty with Prussia of 1828 (Pub. Trs, 658) pro-
vides that the consuls, vice-consuls, and commercial agents of
each party “shall have the right, as such, to sit as judges and ar-
bitrators in such differences as may arise between the captains
and crews of the vessels belonging to the nation whose interests
are committed to their charge, without the interference of the
local authorities,” subject to the right of the contending parties
“to resort, on their return, to the judicial authority of their
country” and to the right of the consuls and commercial agents
to require the assistance of the authorities “to cause their decis-
ions to be carried into effect or supported.” The crew of a Prus-
sian vessel sued in rem, in admiralty, in the district court, to
recover wages alleged to be due them. The master of the vessel
answered, denying the debt, invoking the protection of said treaty,
denying the jurisdiction of the court, and averring that the claim
for wages had already been adjudicated by the Prussian consul
at New York. The consul also protested formally to the court
against the exercise of its jurisdiction. The case was tried in the
district court, and it appeared that the consul had adjudicated
on the claim for wages. The district court decreed in favor of the
libellants. Held, that the district court had no jurisdiction of the
C3;S62, *
The Elwine Rreplin, 9 Blatchford, 438.
128 FOREIGN DECEDENTS—FOREIGN ENLISTMENTs.
27. The district and circuit courts of the United States have jurisdiction
of Suits brought against foreign consuls.
Saint Luke's Hospital vs. Barclay, 3 Blatchford, 259.
Graham vs. Stucken, 4 Blatchford, 50. -
Bixby vs. Janssen, 6 Blatchford, 315.
28. The State courts have no jurisdiction of suits against foreign con-
Suls, but they may assume jurisdiction of suits commenced by
them.
Sagory vs. Wissman, 2 Benedict, 240.
29. Where a foreign consul files a bill in equity in a State court, it
seems the court may entertain a cross-bill.
Ib.
30. A foreign consul may be arrested in the circuit court, under the
acts of February 28, 1839, (5 Stat., 321,) and January 14, 1841, (5
Stat., 410, R. S., § 990,) and the New York code of procedure,
in a suit for money recovered by him in a fiduciary capacity.
McKay vs. Garcia, 6 Benedict, 556.
31. The pendency of a former suit in a State court is no defense to a
Second suit for the same cause of action in the Federal court, as
the State court had no jurisdiction.
- Ib.
FORFEHGRT TPF,{}}E}{}}ENTS.
1. The estates of foreigners dying in the United States are settled by
the local authorities. The consul of the decedent's country can
intervene of right only by way of surveillance, and without juris-
diction.
Estates of foreign decedents, 8 Op., 98, Cushing, (1856.)
2. Under the treaty with Peru of 1851 (Pub. Trs., 612) the United States
are not bound to pay a consul of the Peruvian government the
value of property belonging to a deceased Peruvian, on whose
estate the consul was entitled to administer, which may have
been unjustly detained and administered by a local public admin-
istrator. -
Verjel's.case, 9 Op., 383, Black, (1859.)
IFOREIGN HBOIWHHCHELE.
See Domicile.
FORTENGR （ENRLHSTWIENTS.
1. The undertaking of a belligerent to enlist troops of land or sea in a
- neutral state without the previous consent of the latter is a hOS-
tile attack on its national Sovereignty. |
British consul's case, 7 Op., 367, Cushing, (1855.)
FoREIGN MINISTERs—Foreign SHIPs of WAR. 129
2. The act of Congress prohibiting foreign enlistinents is a matter of
domestic or municipal right as to which foreign governments
have no right to inquire, the international offense being inde-
pendent of the question of the existence of a prohibitory act of
Congress. *
Ib.
3. A. foreign minister who engages in the enlistment of troops here for
his government is subject to be summarily expelled from the
country; or, after demand of recall, dismissed by the President.
º Ib.
4. If agents of the British government, being instructed to enlist mili-
tary recruits, succeed, byingenious devices, in evading the munici-
pal law, and so escape punishment as malefactors, such success-
ful evasion serves to increase the intensity of the international
wrong done the United States.
British enlistments, 8 Op., 468, Cushing, (1855)
5. Report to the President on the legal question involved in the enlist-
ment of troops by British officers in the United States.
British enlistments, 8 Op., 476, Cushing, (1856.)
FoEEIGN MINISTERs.
See Public Minister.
Fort EIGN of FICERs.
See Executive Interference.
Privilege from Arrest.
1. Foreign officers, not public ministers, are not privileged from arrest
and Suit in the United States.
- Captain Cochran's case, 1 Op., 49, Bradford, (1794.)
Rosa's case, 1 Op., 68, Lee, (1797.)
FOREHGN SHIHIPS OF WAR.
See Habeas Corpus.
Eacterritoriality.
International Law.
1. If foreign armed ships adopt the character of merchant ships, they
* must be subject to the consequences thereof, and be treated as
merchant ships by our revenue-officers.
9 Case of collector at Norfolk, 1 Op., 337, Wirt, (1820.)
130 FOREIGN STATES—FOREIGN TRIBUNALS.
Foreign states.
1. Acts of hostility committed by American citizens in foreign coun-
tries must be dealt with there; the offense is not within the juris-
diction of the United States. **
Attack on Sierra Leone, 1 Op., 57, Bradford, (1795.)
2. A collision having occurred in the harbor of San Francisco between
the French transport “Euryale,” and “The Sapphire,” an Ameri-
can vessel, a libel was filed in the name of the Emperor Napo-
leon III for damages. Damages were decreed the libellant and
an appeal taken. Held, that a foreign sovereign can bring a civil
suit in the courts of the United States. ~
The Sapphire, 11 Wallace, 164.
3. A claim accruing to such sovereign, (such as an injury to a public
ship of war,) is not defeated, nor does suit therefor abate by
a change in the person of the sovereign. Such a change, if nec-
essary, may be suggested on the record.
Ib.
4. The Constitution of the United States gives jurisdiction to the
courts of the United States, in cases where foreign states are
parties, and the judiciary act gives to the circuit courts juris-
diction in all cases between aliens and citizens. -
The King of Spain vs. Oliver, 2 Washington, 429.
5. The court refused to inquire, upon a motion, whether Ferdinand
VII, King of Spain, could institute this suit, the Government of
the United States not having acknowledged him king.
- - Ib.
*** *memºmsºmºsºmº,
FOHREIGN 'I'E HERITORY.
+.
See Sovereignty.
FOREIGN TRHIB UNAPLS,
See Earpatriation.
1. A nation ought not to interfere in the causes of its citizens brought
before foreign tribunals, except in a case of refusal of justice, or
of palpable injustice. *
Green's Case, 1 Op., 53 Bradford, (1794.)
2. When a suitor applies to foreign tribunals for justice, he must Sub-
mit to the rules by which those tribunals are governed.
Ib.
FRANCE—GRANT 131
1 FRANCIE.
Šee Extradition
Treaties.
1. The modified state of war with France in 1799 considered.
* Bas vs. Tingey, 4 Dalla8, 37.
FREE GooDs.
1 By the treaty with Spain of 1795 (Pub. Trs., 708) free ships make free
goods; but the form of the passport by which the freedom of
the ship was to have been conclusively established, never having
been annexed to the treaty, the proprietary interest of the ship
is to be proved, according to the ordinary rules of the prize
Court, and if thus shown to be Spanish, will protect the cargo
On board, to whomsoever the latter may belong.
- The Amiable Isabella, 6 Wheaton, 1.
2. On the same subject see
The Pizarro, 2 Wheaton, 227.
United States vs. The Amistad, 15 Peters, 518.
I Fü GITHWES.
See Eaºtradition.
GOVERNMENT.
See Civil War. -
De Facto. Government.
Sovereignty.
GovertNMENT or FICERs.
See Contracts.
Compensation.
Executive Departments.
GRANT,
º
1. This court has uniformly held that the term grant, in a treaty, com-
prehends not only those which are made in form, but also any
concession, warrant, order, or permission to survey, possess, or
Settle, whether evidenced by writing or parol, or presumed from
possession.
Strother vs. Lucas, 12 Peters, 436.
132 ... GUANO. ISLANDS.
GUANO, ESLANDS.
1. What facts must be established to justify the President in annexing
a guano island to the United States. Manner of proceeding
and form of bond discussed. -
- Guano Islands, 9 Op., 30, Black, (1857.)
2. The act of 1856 (11 Stat., 119; R. S., § 5570) requires, before an
island whereon guano is discovered shall be deemed as appertain-
ing to the United States, that the island shall be taken possession
of and actually occupied; conditions which are not complied with
by a mere symbolical possession or occupancy.
Case of Johnson's Islands, 9 Op., 364, Black, (1859.)
3. No claim, under the act, can have an earlier inception than the
actual discovery of guano deposit, possession taken, and actual
occupation of the island, rock, or key whereon it is found.
Ib.
4. In determining the proper party to give the bond required by the
act, the political department of the Government can only look to
the party complying with the conditions of the statute, without
considering the legal or equitable rights of other parties to share
in the profits of the speculation, which are to be left for the
determination of the proper judicial tribunals.
Ib.
5. The President has no power to annex a guano island to the United
States while a diplomatic question as to jurisdiction is pending
between this Government and that of a foreign nation.
Cayo Verde Islands, 9 Op., 406, Black, (1859.)
6. The President has no duty to perform in respect to an application
by the sureties in a bond given to the United States under the
guano-island act of 1856 (11 Stat., 119; R. S., § 5574) to be
released from their obligation, in consequence of a breach of the
bond by their principal.
Case of Delano and Ru38ell, 11 Op., 30, Bates, (1863.)
7. The Secretary of State ought not to revoke the proclamation issued
August 7, 1860, relative to Howland's Island in the Pacific
Ocean, in favor of the United States Guano Company, upon the
application of the American Guano Company.
Application of American Guano Co., 11 Op., 397, Speed, (1865.)
'8. Section 8 of the act of 1865 (13 Stat., 494) repeals that part of the
act of 1856 (11 Stat., 119) which requires the trade in guano from
guano islands to be carried on in coasting-vessels, and for two
years from and after July 14, 1865, all persons who have complied
with section 2 of the act of 1856 (R. S., §§ 5572, 5573) may export
guano in any vessel which may lawfully export merchandise from
the United States. ->
Ea:portation of guano, 11 Op., 514, Speed, (1866.)
HABEAS CORPUS—ILLICIT INTERCOURSE. 133
9. Claim of the widow of William H. Parker, under the acts of 1856
(11 Stat., 119) and 1872, (17 Stat., 48; R. S., § 5570,) to certain
guano islands in the Pacific Ocean, examined, and the conclusion
reached: That the claimant has no derivative title to the islands
under her late husband, and that she is not now in a situation to
set up an original title thereto in herself.
Guano Islands in the Pacific, 14 Op., 608, Phillips, acting, (1873.)
HA BEAS COR PUS.
1. A writ of habeas corpus may be awarded to bring up an American
subject unlawfully detained on board a foreign ship of war; the
commander being fully within the reach of and amenable to the
usual jurisdiction of the state where he happens to be. -
Case of an American citizen on British ship, 1 Op., 47, Bradford, (1794.)
[NOTE-But see other opinions and cases under Eaterritoriality.]
IHIGH I SEAS.
1. Discussion of jurisdiction over acts done on board of American vessels
On the high seas.
- The Atalanta, 8 Op., 73, Cushing, (1856.)
HOSTILITY.
See Neutrality.
ILLICIT INTER COURSE.
1. Whenever there is just cause to believe that any merchant-vessel is
engaged in an illicit trade, forbidden by the laws of Congress, a
public vessel has the right to detain her until our Government
can act upon the subject; and the question of the violation of the
sovereignty of any foreign government in nowise affects the
question in respect to the liability of the suspected vessel to
seizure under such circumstances.
The brig Thomas, 3 Op., 405, Grundy, (1839.)
2. Although in this case it was competent for the consul to give the
order and for the public vessel to make the seizure and detention,
nevertheless, without further proof that the vessel was engaged
or arranged to be engaged in the slave-trade, further proceedings
should not be taken in the premises.
Ib.
134 ILLICIT INTERCOURSE.
3. After a declaration of war an American citizen cannot lawfully send
a vessel to the enemy's country to bring away his property. In-
tercourse, and not merely trading, is forbidden.
The Rapid, 8 Cranch, 155.
4. The sailing on a voyage under the license and passport of protection
of the enemy, in furtherance of his views or interests, constitutes
Such an act of illegality as subjects the ship and cargo to confis-
cation as prize of war.
The Julia, 8 Cranch, 181.
5. The acceptance and use of an enemy's license on a Voyage to a neu-
tral port, prosecuted in furtherance of the enemy's avowed objects,
is illegal, and subjects the vessel and cargo to confiscation.
3. The Aurora, 8 Cranch, 203.
6. It is not necessary, in order to subject the property to condemnation,
that the person granting the license should be duly authorized to
grant it, provided the person receiving it takes it with the expec-
tation that it will protect his property from the enemy.
Ib.
7. Sailing with an intention to further the views of the enemy is suffi-
cient to condemn the property, although that intention be frus-
trated by capture. -
Ib.
8. The principle of the decision in “The Julia” (8 Cranch, 181) applied to
a case where it was not expressly stated in the license that its
object was to supply the enemy with provisions, but where such
object was plainly inferable.
The Hiram, 8 Cranch, 444.
9. A vessel of the United States which carries a cargo from a neutral
to an enemy's port, after the existence of war was known, is liable
to capture and Condemnation, though such passage is a part of
her home voyage from the neutral port to the United States, and
the capture is made after she has sailed from the enemy’s port.
The Joseph, 8 Cranch, 451.
10. If, upon the breaking out of a war with this country, our citizens
have a right to withdraw their property from the enemy's country,
it must be done within a reasonable time. Eleven months after
the declaration of war is too late.
The Saint Lawrence, 9 Cranch, 120.
11. Navigating under a license from the enemy is cause for confiscation,
and is closely connected in principle with the offense of trading
with the enemy. -
The Hiram, 1 Wheaton, 440.
ILLICIT INTERCOURSE. 135
12.
13.
14.
15.
16.
17.
18.
The Sailing under the enemy's license constitutes, of itself, an act of
illegality, which subjects the property to confiscation, without
regard to the object of the voyage or the port of destination.
The Ariadne, 2 Wheaton, 143.
A vessel and cargo liable to capture as enemys’ property, or for
Sailing under the pass or license of the enemy, or for trading
with the enemy, may be seized after arrival in a port of the
United States and condemned as prize of war. The delictum is
not purged by the termination of the voyage.
The Caledonian, 4 Wheaton, 100.
Any citizen may seize any property forfeited to the use of the gov-
ernment, either by the municipal law or as prize of war, in order
to enforce the forfeiture, and it depends upon the Government
whether it will act upon the seizure; if it proceeds to enforce the
forfeiture by legal process, this is a sufficient confirmation of the
seizure.
Ib.
It may be averred as a part of the law of nations—forming a part,
too, of the municipal jurisprudence of every country—that in a
state of war between two nations, declared by the authority in
whom the municipal constitution vests the power of making war,
the two nations and all their citizens or subjects are enemies to
each other. The consequence of this state of hostility is, that all
intercourse and Communication between them is unlawful.
Jecker vs. Montgomery, 18 Howard, 110, [112.]
Cases mentioned, by way of illustration, in which property of a sub-
ject or citizen, found trading with an enemy, has been adjudged
to be forfeited as prize.
Ib.
Neutral friends or even citizens Who remain in the enemy’s country
after the declaration of war, have impressed upon them so much
of the character of enemies, that trading with them becomes
illegal, and all property so acquired is liable to confiscation.
The William Bagaley, 5 Wallace, 377, [405.]
It has been found necessary, as soon as war is commenced, that
business intercourse should cease between the citizens of the
respective parties engaged in it, and this necessity is So great
that all writers on public law agree that it is unlawful, without
any express declaration of the sovereign on the subject.
Intercourse during war with an enemy is unlawful to parties
who stand in the relation of debtor and creditor as much as to
those who do not.
United States vs. Grossmayer, 9 Wallace, 72, [74, 75.]
136 - ILLICIT INTERCOURSE,
19. Every kind of commercial dealing or intercourse, whether by trans-
mission of money or of goods, or orders for the delivery of either,
between two countries at war, directly or indirectly, or through
the intervention of third persons or partnerships, or by contracts
in any form looking to or involving such transmission, is void.
Montgomery vs. United States, 15 Wallace, 395, [400.]
20. What constitutes trading with public enemy.
United States vs. Lapéne, 17 Wallace, 601.
21. The Government of the United States has clearly the power to per-
mit limited commercial intercourse with an enemy in time of war,
and to impose such conditions thereon as it sees fit. This power
is incident to the power to declare war and carry it on to a suc-
cessful termination.
Hamilton vs. Dillin, 21 Wallace, 73.
22. It seems that the President, who is constitutionally invested with
the entire charge of hostile operations, may exercise this power,
but there is no doubt that with the concurrent authority of Con-
gress, he may exercise it at his discretion.
* Ib. -
23. It must be considered as a settled principle of maritime and national
law, that all trade with the enemy, unless with the permission of
the sovereign, is interdicted, and subjects the property engaged
in it to the penalty of confiscation. Nor is this as a modern
principle. It may not be found laid down in terms in Grotius,
Puffendorf, or Vattel, but it irresistibly flows from the current
of their reasoning. Indeed, the treatises of these great writers
upon national law are admitted to be imperfect on many maritime
questions. -
The Schooner Rapid and cargo, 1 Gallison, 295, [303.]
24. I lay it down as a fundamental proposition, that, strictly speaking,
in war all intercourse between subjects and citizens of the bellig-
erent countries is illegal, unless sanctioned by the authority of
the government, or in the exercise of the rights of humranity. I
am aware that the proposition is usually laid down in more re-
stricted terms by elementary writers, and is confined to commer-
cial intercourse. * * Independent of all authority, it would
Seem a necessary result of a state of war to suspend all negotia-
tions and intercourse between the subjects of the belligerent na-
tions.
The Julia and cargo, 1 Gallison, 594, [601.1
INDEFINITE APPROPRIATIONS-INSURRECTION. 137
INIOEFHNITE AIP PROPRIATIONS.
See Appropriations.
*-* *-m-m-m-,
INDEMINHIFFICATHON.
See Awards.
Claims.
Diplomatic Interference.
1. The indemnification awarded by the Emperor of Russia, to be paid
by Great Britain for having violated the treaty of peace, in taking
and carrying away slaves and other property, involves not merely
the return of the value of the Specific property, but a compensation
also, for the subsequent and wrongful detention of it, in the nature
of damages; and since this will be a work of great labor and time,
interest accordingly may betaken as a necessary part of the indem-
nification awarded.
Award of the Emperor of Russia, 2 Op., 28 Wirt, (1826.)
INJURIES.
See Claim8. -
Diplomatic Interference.
Slaves.
Treaties.
1. By the law of nations, if the citizens of one State do an injury to the
citizens of another, the government of the offending subject ought
to take every reasonable measure to cause reparation to be made
by the offender. But if the offender is subject to the ordinary pro-
cesses of law, it is believed this principle does not generally extend
to oblige the government to make satisfaction, in case of the ina-
bility of the offender.
The Mercator, 1 Op., 106, Lincoln, (1802.)
INSURRECTION.
1. The act of despatching an American vessel, in ballast, from a port of
the United States with an immediate destination to a neutral port,
and an ulterior destination, with cargo taken in at such neutral
port, to a blockaded port, is an offense against the United States
under section 2 of the act of 1862, (12 Stat., 590; R. S., § 5334.)
ſº Case of blockade runners, 10 Op., 513, Coffey, ad int., (1863.)
2. The United States, in the enforcement of their constitutional rights
against armed insurrection, have all the powers not only of a
sovereign, but also of the most favored belligerent.
Lamar v8. Browne, 92 U. S. R., S. C., 187.
138 INTEREST-INTERNATIONAL COMMISSIONERS.
INTEREST.
1. Th general, the government, which is always to be presumed to be
ready and willing to discharge its obligations, pays no interest;
yet from considerations of State policy, it has sometimes allowed
it, as in the case of claims under the act of 1814, (6 Stat., 139.).
Claim of Henry de la Francia, 5 Op., 105, Johnson, (1849.)
2. Although interest, as a general rule, will not be paid upon claims
against the Government, there are instances in which the Gov-
ernment, from considerations of policy allows it.
. tº Claim of the heirs of Thomas Ewel, 5 Op., 138, Johnson, (1849.)
3. Cases in which interest on claims should be allowed.
Galphin's case, 5 Op., 227, Johnson, (1850.)
Transportation claims, 5 Op., 399, Crittenden, (1851.)
4. As a general rule, the United States does not pay interest on any
debts of the Government.
Colmesnil's case, 7 Op., 523, Cushing, (1855.)
5. The only exceptions are where the Government stipulates to pay in-
terest, as in public loans, and where interest is given by act of
Congress expressly, either by the name of interest or by that of
damages. -
Ib.
6. Acts of Congress authorizing the settlement of claims according to
“equity” or “equity and justice,” do not give interest; for, as
between private individuals, there is no material difference in
this respect between equity and law, and that expression does
not change the result as regards the government.
This opinion reviews former opinions on same subject.
Ib.
7. Semble, that the court does not sanction the allowance of interest on
claims against the Government.
Gordon vs. United States, 7 Wallace, 188.
INTERNATHONAL (COWHITTY.
See Claims.
HN ſº FIRNATHONAL CO Wº HSSHGNERS.
1. According to the public law of the monarchies of Europe, the authority
- of ministers, and perhaps of international commissioners, expires
on the death, deposition, or abdication of the prince; but not so
as between the American republics, in which the executive power
INTERNATIONAL LAW. 139
2
2
is permanent and continuous, without regard to the governing
person, and there is no interruption of the authority or renewal
of the credentials of their public ministers, on a change of Presi-
dent for whatever cause, provided such President continues to
represent and exercise the appointing power of the Government.
Case of Commissioners whder treaty with Mexico, 7 Op., 582, Cushing, (1855.)
. The United States observe, as their rule of public law, to recognize
governments de facto, and also governing persons de facto, without
scrutiny of the question of legitimacy of origin or accession.
Ib.
HNTERNATRIONALL I L.A.W.
. The arrest of servants of public ministers is regulated by act of Con-
gress; entering a public minister's house to serve an execution
will either be absorbed in the arrest as being necessarily associ-
ated with it, or, if an arrest be admissible, must be punished, if
at all, under the law of nations.
Case of Van Berckel's servant, 1 Op., 26, Randolph, (1792.)
. Entering a public minister's residence to make an arrest which might
lawfully be made elsewhere is an offense under the law of nations.
Ib.
. The law of nations does not allow reprisals, except in case of violent
injuries directed and supported by the State, and the denial of
justice by all the tribunals, and afterward by the prince.
- Pagan's cage, 1 Op., 30, Randolph, (1793.)
. To attack an enemy in a neutral territory is absolutely unlawful.
The arrest of a British vessel within the capes of the Delaware
and before she went to sea is a seizure within our territory, and
vessel should be restored.
The Grange, 1 Op., 32, Randolph, (1793.)
. A foreign consul is not a public minister within the meaning of the
act of April 30, 1790, (1 Stat., 117; R. S., § 4063,) because he is
not in any degree invested with the representative character.
Case of British consul at Norfolk, 1 Op., 41, Bradford, (1794.)
. The law of nations invests the commander of a foreign ship of War
with no exemption from the jurisdiction of the country into which
he comes. -
A writ of habeas corpus may be awarded to produce an Ameri-
can citizen unlawfully detained on a foreign vessel.
Case of American citizen on British ship, 1 Op., 47, Bradford, (1794.)
140 INTERNATIONAL LAW.
7. In the case of a foreign public minister, the municipal law of libel is
strengthened by the law of nations, which secures the minister a
peculiar protection not only from violence, but also from insult.
Such a publication may be made the subject of legal prosecution.
tº Case of British minister, 1 Op., 52, Bradford, (1794.)
8. A citizen of a neutral state who, for hire, serves as a mariner on a
neutral ship, employed in contraband commerce with either of the
belligerents, is not liable to any prosecution or punishment for So
doing by the municipal laws of his own state; nor is he punish-
able personally according to the law of nations, though taken in
the act by that belligerent nation to whose detriment the pro-
hibited trade would operate.
Sale of ships to the British, 1 Op., 61, Lee, (1796.)
9. It is an offense against the law of nations for any persons, whether
citizens or foreigners, to go into the territory of Spain with intent
to recover their property by their own strength, or in any other
manner than that permitted by its laws.
PWilliam Jones's case, 1 Op., 68, Lee, (1797.)
/
10. A consul is not privileged from legal process by the general law of
nations. -
Letombe's case, 1 Op., 77, Lee, (1797.)
11. It is a rule established by the law of nations that a captured vessel
must be brought within the jurisdiction of the country to which
the captor belongs before any regular condemnation can be
awarded.
British ship John, 1 Op., 78, Lee, (1797.)
12. According to the general rule established by the writers on the law
of nations, every ship, even a public ship of war of a foreign na-
tion, in a port of one of the States of the Union, adjacent to a
wharf, is within the territory of such State and subject to the
service of judicial process. It is lawful to serve either civil or
criminal process upon a person on board a British man-of-War
under such circumstances.
- The Chesterfield, 1 Op., 87, Lee, (1799.)
13. By the law of nations, if the citizens of one state do an injury to
the citizens of another, the government of the offending subject
should take every reasonable measure to cause reparation to be
made by the offender; but if the offender is subject to the ordi-
nary processes of law, it is believed that the principle does not
generally extend to oblige the government to make satisfaction
in case of the inability of the offender.
The Mercator, 1 Op., 106, Lincoln, (1802.)
INTERNATIONAL LAW. 141
14. Foreign consuls and vice-consuls are not public ministers within the
law of nations.
f Villavašo's case, 1 Op., 406, Wirt, (1820.)
15. According to the pure spirit of the law of nations, no nation gives
herself a claim to call upon other nations for a strict observance
of their law who does not observe it strictly upon her own part,
not only in the particular class of cases in which she makes the
call, but throughout the whole system of that law; for that law
presents an entire system of the relative rights and duties of na-
tions, founded throughout on the purest morality and the most
expanded philanthropy, and every part of it is equally obligatory
On all nations.
Sullivan's case, 1 Op., 509, [511, Wirt, (1821.)
16. There is nothing in the law of nations, as explained by the usage
and practice of the most respectable among them, which imposes
on us any obligation to deliver up fugitives from foreign justice.
Ib., [521.]
17. There is high authority for the position that a prize may be brought
into a neutral port and sold without violating the law of nations
concerning neutrality; but there is no doubt of the authority of
the neutral sovereign to prohibit such sale, and as the strongest
considerations of expediency and safety urge him to do so the
better course is, clearly, to prohibit it.
Case of a Spanish ship, 2 Op., 86, Wirt, (1828.)
18. It would be a breach of neutrality to permit a neutral port to be
made a cruising-station for a belligerent or a place of depot for
his spoils or prisoners.
Ib.
19. The principles of international law, as they are recognized in Europe,
afford no warrant for the exercise of judicial power by consuls.
Claim of the French minister, 2 Op., 378, [381, J Berrien, (1830.)
20. If a consul, be guilty of illegal or improper conduct he is liable to
have his exeguatur revoked and to be punished according to the
laws of the country in which he is consul, or he may be sent back
to his own country, at the discretion of the government which he
has offended. -
Immunities of foreign consuls, 2 Op., 725, Butler, (1835.)
21. A Consul is not such a public minister as to be entitled to the privi-
leges appertaining to that character, nor is he under the special
protection of the law of nations. He is entitled to privileges to
a certain extent, such as safe-conduct, but he is not entitled to
142 INTERNATIONAL LAW.
the jus gentium. It may be considered as settled law that con-
suls do not enjoy the protection of the law of nations any more
than any other persons who enter the country under a safe-con-
duct.
Ib.
22. Nothing can be clearer than that the voluntary enlistment of aliens
is agreeable to the law of nations, which makes a part of the
Common law. ,
- Enlistment of aliens, 3 Op., 671, Legaré, (1841.)
23. A ship entering the port of a friendly power, with slaves on board,
24.
26.
27.
28.
Would not, according to the law of nations in analogous cases, be
responsible on that account to the local authorities so long as
those slaves continued on board. It may be conceded, in view of
the English doctrine, that in this particular case ships voluntarily
entering British ports, with a knowledge of the state of British
law, may be taken to have voluntarily submitted to that law,
(right or wrong,) as it is interpreted there. •
Case of the Creole, 4 Op., 98, Legaré, (1842.)
The persons and household goods of foreign ambassadors and of
those attached to their legations are exempt from arrest, seizure,
or molestation, as well by the law of nations as by the act of
Congress of 1790, section 28. (1 Stat., 118; R. S., § 4062.) But it
is not incumbent on the Secretary of State to interfere in such
cases, since the act of Congress which prescribes the penalty
refers the parties to the judiciary. w
Case of Jules Marie, 5 Op., 69, Toucey, (1849.)
. There is no principle of the law of nations, no rule of comity between
them, which forbids one nation to employ in her military service
the subjects or citizens of a foreign nation.
Enlistment of aliens, 6 Op., 474, [476, Cushing, (1834.)
According to the law of nations, neutrals have the right to pur-
chase during war the property of belligerents, whether ships or
anything else; and any regulation of a particular state which
contravenes this doctrine is against public law, and in mere dero-
gation of the sovereign authority of all other independent states.
Letter of the British minister as to purchase of ships, 6 Op., 638, Cushing, (1853.)
Some of the persons entitled by the law of nations to exterritoriality
enumerated. - *
Celebration of marriages, 7 Op., 18, [20,] Cushing, (1854.)
By the law of nations the ships of war of belligerents, with their
prizes, enjoy asylum in neutral ports for the purpose of obtaining
supplies or undergoing repairs, according to the discretion of the
neutral Sovereign, who may refuse the asylum absolutely, or grant
INTERNATIONAL LAW. . 143
it under such conditions of duration, place, and other circum-
stances, as he shall see fit: Provided, That he must be strictly
impartial in this respect toward all the belligerent powers.
The President and prize, 7 Op., 122, Cushing, (1855.)
29. A foreign-ship of war, or any prize of hers in command of a public
officer, possesses, in the ports of the United States, the rights of
exterritoriality, and is not subject to the local jurisdiction.
- * Ib.
30. A prisoner of war on board a foreign ship of war, or of her prize,
cannot be released by habeas corpus issuing from courts of the
United States or of a particular State. Ib
31. But if such prisoner of war be taken on shore, he becomes subject
to the local jurisdiction, or not, according as it may be agreed
between the political authorities of the belligerent and neutral
power.
Ib.
32. The law of nations as to territorial sovereignty discussed.
The bark Eliza and pilot, 7 Op., 229, Cushing, (1855.)
33. The act of Congress prohibiting foreign enlistments is a matter of
domestic or municipal right, as to which foreign governments
have no right to inquire, the international offense being independ-
ent of the question of the existence of a prohibitory act of Con-
greSS.
British consul's case, 7 Op., 367, [368, Cushing, (1855.)
34. The rule of public law is that, since the right of raising soldiers is
a right of majesty, which must not be violated by a foreign nation,
it is not permitted to raise soldiers in the territory of a State
without the consent of its sovereign.
Ib.
35. According to the public law of the monarchies of Europe, the au-
thority of ministers, and perhaps of international commissioners,
expires on the death, deposition, or abdication of the prince; but
not so as between the American republics, in which the Executive
power is permanent and continuous, without regard to the gov-
erning person, and there is no interruption of the authority or
renewal of the credentials of their public ministers on a change
of president for whatever cause, provided such president contin-
ues to represent and exercise the appointing power of the gov-
ernment. -
Construction of Megilla treaty, 7 Op., 582, Cushing, (1855.)
36. The United States observe as their rule of public law to recognize
governments de facto and also governing persons de facto, with-
out Scrutiny of the question of legitimacy of origin or succession.
* Ib.
144 -- INTERNATIONAL LAW
37.
38.
39.
40.
41.
44.
45.
Citizens of the United States who hold foreign consulates in the
United States are not exempt from jury-duty or service in the
militia by the law of nations. -
Citizens, foreign consuls, 8 Op., 169, Cushing, (1856.)
The United States Government cannot purchase a grant of land in,
or concession of right of way over, the territories of another na-
tion, as could an individual or private corporation, since, by the
law of nations, one government cannot enter upon the territories
of another, or claim any right whatever therein.
The Chiriquí Improvement Company, 9 Op., 286, Black, (1859.)
We take our knowledge of international law, not from the municipal
code of England, but from natural reason and justice, from writers
of known wisdom, and from the practice of civilized nations.
Christian Ernst’s case, 9 Op., 356, Black, (1859.)
A sovereign state which tramples upon the public law of the world
cannot excuse itself by pointing to a provision in its own munici-
pal code.
Ib.
Section 2 of the prize act of 1863 (12 Stat., 759) authorizing the tak-
ing by the Government of any captured property and the deposit
of its value in the Treasury, subject to the jurisdiction of the
prize court in which proceedings may be instituted for the con-
demnation of the property, is a valid exercise of the power of
Congress to make rules concerning captures.
Lord Lyons's communication concerning prizes, 10 Op., 519, Bates, (1863.)
The provision of that section is not in conflict with the public law of
war, and does not impair the just rights of neutrals.
- Ib.
. The rule of international law is well established, that a foreigner
who resides in the country of a belligerent can claim no indemnity
for losses of property occasioned by acts of war of the other
... belligerent.
Case of Wheelwright and others, 12 Op., 21, Stambery, (1866.)
If a privateer, duly commissioned by a belligerent, collude with a
vessel fitted out in one of our ports, and commanded by one of
our citizens, for the purpose of capturing vessels of a country at
peace with the United States, to cover her prizes and share with
her their proceeds, it is a fraud on the law of nations.
Talbot vs. Janson, 3 Dallas, 133.
Congress can declare a general war, or may wage a limited war;
limited in place, in objects, or in time. If a general war is de-
clared, its extent and operations are only restricted and regu-
lated by the jus belli, forming a part of the law of nations; but
if a partial war is waged, its extent and operation depend on our
municipal law.
Bas v8. Tingey, 4 Dalla8, 37, [43.]
INTERNATIONAL LAW. 145
46.
47.
48.
49.
50.
51.
Congress may authorize general hostilities, in which case the general
jaws of war apply to our situation, or partial hostilities, in which
case the laws of war, so far as they actually apply to our situa-
tion, must be noticed.
- Talbot vs. Seeman, 1 Cranch, 1, [28.]
The laws of the United States ought not, if it be avoidable, so to be
construed as to infract the common principles and usages of na-
tions, or the general doctrines of national law.
Ib., [43.]
An act of Congress ought never to be construed to violate the law
of nations, if any other possible construction remains, and conse-
quently can never be construed to violate neutral rights, or to
affect neutral commerce, further than is warranted by the law of
nations, as understood in this country.
Murray vs. Schooner Charming Betsy, 2 Cranch, 118.
Whatever may be the municipal law under which a tribunal acts, if
it exercise a jurisdiction which its sovereign is not allowed by
the law of nations to confer, its decrees must be disregarded out
of the dominions of its sovereign.
JR086 v8. Himely, 4 Cranch, 241.
Full and absolute territorial jurisdiction being alike the attribute of
every sovereign, and being incapable of conferring extra territo-
rial power, would not seem to contemplate foreign sovereigns nor
their sovereign rights as its objects. One sovereign being in no
respect amenable to another, and being bound by obligations of
the highest character not to degrade the dignity of his nation by
placing himself or its sovereign rights within the jurisdiction of
another, can be supposed to enter a foreign territory, only under
an express license, or in the confidence that the immunities be-
longing to his independent Sovereign station, though not ex-
pressly stipulated, are reserved by implication, and will be ex-
tended to him. .
Schooner Exchange vs. McFaddon, 7 Cranch, 116, [137.]
This perfect equality and absolute independence of sovereigns, and
this common interest impelling them to mutual intercourse, and
an interchange of good offices with each other, have given rise
to a class of cases in which every sovereign is understood to
waive the exercise of a part of that complete exclusive territorial
jurisdiction which has been stated to be the attribute of every
nation.
First. One of these is admitted to be the exemption of the per-
son of the sovereign from arrest or detention within a foreign
territory. -
Second. A second case, standing on the same principles with
the first, is the immunity which all civilized nations allows to
foreign ministers.
10
146
INTERNATIONAL LAW.
52. If
53. It
Third. A third case, in which a sovereign is understood to cede
a portion of his territorial jurisdiction is where he allows the
troops of a foreign prince to pass through his dominions.
Ib.
there be no prohibition, the ports of a friendly nation are con.
sidered as open to the public ships of all powers with whom it is
at peace, and they are supposed to enter such ports and to remain
in them, while allowed to remain, under the protection of the gov-
ernment of the place.
The implied license under which a vessel enters a friendly port
may reasonably be construed as containing an exemption from
he jurisdiction of the sovereign, within whose territory she claims
the rights of hospitality.
§ Ib.
seems to the court to be a principle of public law, that national
ships of war, entering the port of a friendly power open for their
reception, are to be considered as exempted by the consent of
that power from its jurisdiction.
Ib.
54. Without doubt the sovereign of the place is capable of destroying
55. It
this implication.
Ib.
is clear, by the common law, that an alien can take lands by pur-
chase, though not by descent ; or, in other words, he cannot take
by the act of law, but he may by the act of the party. This prin-
ciple has been settled in the year-books, and has been uniformly
recognized as sound law from that time. Nor is there any dis-
tinction whether the purchase be by grant or by devise. In either
case, the estate vests in the alien, not for his own benefit, but for
the benefit of the state; or, in the language of the ancient law,
the alien has the capacity to take, but not to hold, lands, and
they may be seized into the hands of the Sovereign. But until
the lands are so seized the alien has complete dominion over the
same, * * and may convey the same to a purchaser. * * *
We do not find that, in respect to these general rights and disa-
bilities, there is any admitted difference between alien friends
and alien enemies. During war the property of alien enemies
is subject to confiscation jure belli, and their civil capacity to sue
is suspended. But as to capacity to purchase, no case has been
cited in which it has been denied; and in the Attorney-General
ws. Wheedan and Shales, (Park. Rep., 267,) it was adjudged that a
bequest to an alien enemy was good, and, after peace, might be
enforced. Indeed, the colnmon law in these particulars seems to
coincide with the jus gentium. -
Fairfaa's devisee vs. Hunter's lessee, 7 Cranch, 603, [619.]
INTERNATIONAL LAW. , 147
56.
57.
58.
60.
61.
63.
64.
The law of prize is part of the law of nations. In it, a hostile char-
acter is attached to trade, independently of the character of the
trader who pursues or directs it.
The Rapid, 8 Cranch, 155, [162,]
The principles of reason and justice, which constitute the unwritten
law of nations, are, in some degree, fixed and rendered stable by
judicial decisions. - -
Thirty hogsheads of 8ugar vs. Boyle, 9 Cranch, 191, [198.]
The rule that the goods of an enemy, found in the vessel of a friend,
are prize of war, and that the goods of a friend, found in the ves-
sel of an enemy are to be restored, is believed to be a part of the
original law of nations, as generally, perhaps universally, ac-
knowledged. º
The Nereide, 9 Cranch, 388, [418.]
. It is a principle of the law of nations that a neutral cargo found on
board an armed enemy's vessel, is not liable to condemnation as
prize of War.
The Atalanta, 3 Wheaton, 409.
The act of 1819, section 5, (3 Stat., 513, R. S., § 5368,).referring to the
law of nations for a definition of the crime of piracy, is a constitu-
tional exercise of the power of Congress to define and punish that
crime. Piracy is defined by the law of nations with reasonable
certainty. Robbery or forcible depredation upon the sea, animo
Jurandi, is piracy by the law of nations and by the act of Con-
gress. (See R. S., title 70, chap. 3.)
United States vs. Smith, 5 Wheaton, 153.
Whenever a capture is made by any belligerent in violation of our
neutrality, if the prize come voluntarily within our jurisdiction,
it should be restored to the original owners; this is done on the
footing of the general law of nations. *
La Amistad de Rues, 5 Wheaton, 385.
. There is nothing in the law of nations that forbids our citizens send-
ing armed vessels as well as munitions of war to foreign ports
for Sale. -
The Santissima Trinidad, 7 Wheaton, 283, [340.]
The African slave-trade is not contrary to the law of nations.
The Antelope, 10 Wheaton, 66.
The right of search is a belligerent right only.
One nation cannot execute the penal laws of another, and con-
Sequently a foreign vessel engaged in the slave-trade cannot law-
fully be captured by an American cruiser.
Ib.
148 INTERNATIONAL LAW.
65. Pirates may, without doubt, be lawfully captured on the ocean by
the public or private ships of every nation ; for they are, in truth,
the common enemies of all mankind, and, as such, are liable to
the extreme rights of war. And a piratical aggression by an
armed vessel sailing under the regular flag of any nation, may be
justly subjected to the penalty of confiscation for such a gross
breach of the law of nations. But every hostile attack, in a time
of peace, is not necessarily piratical. It may be by mistake, or
in necessary self-defense, or to repel a supposed meditated attack
by pirates. It may be justifiable, and then no blame attaches to
the act; or it may be without just excuse, and then it carries re-
sponsibility for damages. If it proceed further, if it be an attack
from revenge and malignity, from gross abuse of power, and a
settled purpose of mischief, it then assumes the character of a
private, unauthorized war, and may be punished by all the pen-
alties which the law of nations can properly administer.
The Marianna Flora, 11 Wheaton, 40, [41.]
United States vs. Brig Malek Adhel, 2 Howard, 236.
66. As respects performance of the conditions of a grant by a private
grantee, the date of a treaty is the date of its final ratification.
United States vs. Arredondo, 6 Peters, 691, [748.]
67. By the law of nations, the inhabitants, citizens, or subjects of a con-
quered or ceded country, territory, or province retain all the rights
of property which have not been taken from them by the orders
of the conqueror, or the laws of the sovereign who acquired it by
cession, and remain under their former laws until they shall be
* changed.
Mitchel vs. United States, 9 Peters, 734.
68. By the law of nations the rights and property of the inhabitants are
protected, even in the case of a conquered country, and held sa-
cred and inviolable when it is ceded by treaty, with or without
any stipulation to such effect; and the laws, whether in writing
or evidenced by the usage and customs of the conquered or ceded
country, continue in force till altered by the new sovereign.
Strother v8. Lucas, 12 Peters, 410, [436.]
69. Ship's papers and documents accompanying property, under the law
of nations, are but prima facie evidence of such property, and are
of no force when shown to be fraudulent.
- United States vs. The Amistad, 15 Peters, 518, [520.j
70. It is in accordance with the laws of nations that the treaty of San
Ildefonso took effect on the day of its date.
- Davis vs. The Police Jury of Concordia, 9 Howard, 280.
INTERNATIONAL LAw. . 149
71. Though it is the duty of the captor, under the law of nations, to send
in the captured property for adjudication by a court of his own
country having competent jurisdiction, yet he may be excused,
by imperative circumstances, for making a sale of such property,
and afterwards seasonably subjecting the proceeds to the juris-
diction of a proper court of prize.
Jecker vs. Montgomery, 13 Howard, 498, [516.]
72. It may be averred as a part of the law of nations—forming a part,
too, of the municipal jurisprudence of every country—that in a
state of war between two nations, declared by the authority in
whom the municipal constitution vests the power of making war,
the two nations and all their citizens or subjects are enemies to
each other. The consequence of this state of hostility is, that
all intercourse and communication between them is unlawful.
o Jecker vs. Montgomery, 18 Howard, 112.
73. The presumption of the law of nations is against an owner who
suffers his personal property to continue in a hostile country which
he abandons in order to go to the other belligerent, and so to re-
turn to his proper allegiance and soil, for much length of time.
The William Bagaley, 5 Wallace, 377, [408,409.]
74. Although it is true, as a principle of international law, that, as re-
spects the right of either government under it, a treaty is consid-
ered as concluded and binding from the date of its signature, and
that in this regard the exchange of ratifications has a retroactive
effect, confirming the treaty from its date; a different rule pre-
vails where the treaty operates on individual rights. There the
principle of relation does not apply to rights of this character
which were vested before the treaty was ratified, and, in so far as
it affects them, it is not considered as concluded until there is an
exchange of ratifications.
Haver-vs. Yaker, 9 Wallace, 32.
75. Unless treaty stipulations provide otherwise, a merchant vessel of
one country visiting the ports of another for the purpose of trade,
is, so long as she remains, subject to the laws which govern them.
United States vs. Diekelman, 92 U. S. B., S. C., 520.
76. Where, in time of war, a foreign vessel, availing herself of the proc-
lamation of the President of May 12, 1862, (12 Stat., 1263,) en-
tered the port of New Orleans, the blockade of which was not
removed, but only relaxed in the interests of commerce, she
thereby assented to the conditions imposed by such proclamation
that she should not take out goods contraband of war, nor depart
until cleared by the collector of customs according to law.
- Ib.
150 INTERNATIONAL LAW.
*
77. As New Orleans was then governed by martial law, a subject of a
foreign power entering that port with his vessel under the special
license of the proclamation, became entitled to the same rights
and privileges accorded under the same circumstances to loyal
citizens of the United States. Restrictions placed upon them
Operated equally upon him. Ib.
78. Money, silver-plate, and bullion, when destined for hostile use or
for the purchase of hostile supplies, are contraband of war. In
this case, the determination of the question whether such articles,
part of the outward-bound cargo of the vessel, were contraband
devolved upon the commanding general at New Orleans. Believ- .
ing them to be so, he, in the discharge of his duty, ordered them
to be removed from her, and her clearance to be withheld until
his order should be complied with. Ib.
79. Where the detention of the vessel in port was caused by her resist.
ance to the orders of the properly-constituted authorities whom
she was bound to obey, she preferring such detention to a clear-
ance upon the conditions imposed : Held, that her owner, a subject
of Prussia, is not entitled to any damages against the United
States, under the law of nations or the treaty with that power.
Ib.
80. Every nation has exclusive jurisdiction over the waters adjacent to
its shores to the distance of a cannon shot or marine league.
The Ann, 1 Gallison, 62.
81. By the law of nations the debts, credits, and corporeal property of
an enemy, found in the country on the breaking out of war, are
confiscable. Cargo of ship Emulous, 1 Gallison, 562.
82. The law of nations does not prohibit the carrying of enemies' goods
in neutral vessels; so far from so doing, upon the condemnation
of the goods, the vessel is entitled to freight.
Schwartz v8. Insurance Company of North America, 3 Washington, 117
83. But if a neutral endeavors, by false appearances, to cover the prop-
erty.of a belligerent from the lawful seizure of his enemy, such
conduct identifies the neutral with the belligerent whom he thus
endeavors to protect; and is a fraud on the neutrality of his own
government and upon the rights of the belligerent. Ib
84. The law of nations identifies the property of a foreign minister, at-
tached to his person, or in his use, with his person. To insult
them is an attack on the minister and his sovereign; and it
appears to have been the intention of the act of Congress to .
t punish offenses of this kind. United States vs. Hand, 2 Washvngton, 435.
85. A secretary attached to the Spanish legation is entitled to the pro-
tection of the law of nations against any civil or criminal prose-
Cution. Ex parte Cabrera, 1 Washington, 232.
INTERNATIONAL LAW. 151
\
86. A foreign government has no right, by the law of nations, to
demand of the Government of the United States a surrender of
a citizen or subject of such foreign country, who has committed
a crime in his own country, and is afterwards found within the
limits of the United States. That is a right which has no exist-
ence Without and can only be secured by a treaty stipulation.
Case of José Ferreira dos Santos, 2 Brockenbrough, 493.
87. Where a gun was fired from an American ship lying in a harbor of
one of the Society Islands, killing a person on board a schooner
belonging to the natives in the harbor: Held, that the act was,
in Contemplation of law, committed on board the foreign schooner,
Where the shot took effect, and that jurisdiction of the offense
belonged to the foreign government and not to the courts of the
United States. Where a prisoner under such circumstances was
Sent home for trial, it was held that the court had no jurisdic-
tion. . .
United States vs. Davis, 2 Sumner, 482.
88. By the law of nations, where a war exists between two distinct and
independent powers, there must be a suspension of all commer-
cial intercourse between their citizens; but this principle has not
been applied to the States which joined the so-called Southern
Confederacy.
The destination of arms and munitions of war, and the use in-
tended to be made thereof at the time of seizure, must furnish a
test of their status as contraband or otherwise.
United States vs. Six Boxes of Arms, 1 Bond, 446.
89. In a state of war between two nations a commission to a private
armed vessel from either of the belligerents affords a defense,
according to the law of nations, in the courts of the enemy,
against a charge of robbery or piracy on the high seas of which
it might be guilty in the absence of such authority.
United States vs. Baker, 5 Blatchford, 13.
90. The seizure of enemy property by the United States, as prize of
war on land, jure belli, is not authorized by the law of nations,
and can be upheld only by an act of Congress.
- United States vs. 1,756 Shares of Capital Stock, 5 Blatchford, 232.
91. A sale by a belligerant of a war ship to a neutral in a neutral port
is invalid by the law of nations, as construed both in England
and America. -
This doctrine applied to the sale of the Georgia in the port of
Liverpool, in June, 1863, the purchaser having full notice of the
character of the vessel, but buying in good faith and for his own use.
.* The Georgia, 1 Lowell, 96.
152 ISTHMUs of PANAMA-JEWELS OF PRINCEss OF ORANGE.
IIST HINTUS OF PANAMIA.
1. The act of the government of New Granada, conceding to a com-
pany the exclusive right to construct a railroad across the Isth-
mus of Panama, must be construed so as to give that right within
the true geographical boundaries of the isthmus. Those bounda-
ries do not extend on the north to the Costa Rica line, nor do they
include the Isthmus of Chiriqui. y
The Chiriquí Co., 9 Op., 391, Black, (1859.)
2. Article 35 of the treaty of 1846 with New Granada, (Pub. Trs., 558,)
- binds this Government absolutely to guarantee the perfect neu-
trality of the Isthmus of Panama, on the demand of the proper
party; and this obligation must be performed by any and all
means which may be found lawful and expedient.
- Neutrality of the Isthmus of Panama, 11 Op., 67, Baté8, (1864.)
3. Article 35 of the treaty of 1846 with New Granada (Pub. Trs, 558)
does not oblige this Government to protect the Isthmus of Panama
from invasion by a body of insurgents from the United States of
Colombia.
Ib., 391, Speed, (1865.)
JEWELS OF THE PRINCRESS OF ORANGE.
1. The jewels of the Princess of Orange, one of the family of the King
of the Netherlands, stolen (or received, knowing them to have
been stolen) and brought into this country by Polari, in violation
of our revenue-laws, and seized and libelled for such violation in
the name of the United States, and now claimed by the minister
of the King of the Netherlands, are not liable to condemnation.
Jewels of the Princess of Orange, 2 Op., 482, Taney, (1831.)
2. The real owner has done no act that can rightfully subject them to
forfeiture. The party who imported them into this country ob-
tained the possession fraudulently and without her knowledge,
and brought them here against her will. Introduced thus against
the consent of the owner, they stand on the same footing with
property cast upon our shores by the violence of the winds and
waves, and are entitled to the same protection.
Ib.
3. There being sufficient evidence that they belong to the princess, and
the minister of her sovereign, friendly to the United States,
asking their restoration, the President should order the district
attorney to discontinue the prosecution, and direct the marshal
having them in possession to deliver them over to the minister
of the king.
**
Ib.
JOINT RESOLUTIONS-JUDGMENTS. - 153
4. The opinion delivered the 28th ultimo, concerning the discontinuance
of the prosecution and the delivery of the jewels of the Princess
of Orange, reconsidered and affirmed, with suggestions relative
to carrying the recommendations into effect. |
Jewels of the Princess of Orange, 2 Op., 496, Taney, (1832.) .
5. Seizures by collectors are not made pursuant to or by virtue of any
judicial authority; and courts have no control over the property
seized until the same is libeled. When libeled the property
seized is in the custody of the courts, and is held by the collector
as their officer, and subject to their direction pendente lite.
Whenever the prosecution shall for any cause be discontinued,
the collector ceases to be the officer of the court; but, as collector
of customs, he holds the property by the same right which he
exercised before the filing of the libel.
Ib.
6. When the judicial responsibility of the collector ceases, the full
responsibility of the collector to the executive department is
resumed, so that the collector holds the property seized, the same
as if no libel had been filed. And as the President might have
directed the restoration before the libel was filed, so he may like-
wise when it has been discontinued. I.
&
7. The practice in New York of giving the custody of goods libeled to
the marshal is erroneous; the collector is legally entitled to the
keeping of the property after the proceedings are instituted as
well as before. -
Ib.
8. In this case, as the practice has been to give the marshal the custody
of goods, and as embarrassments may follow another course, an
order to the marshal reciting particularly the grounds on which
it is given may be sent to the district attorney, to be filed in
court with the order to dismiss. Ib
9. After the discontinuance, the court may be moved to order the mar-
shal to deliver the jewels to Chevalier Huygens.
g lb.
JOINT RESOLUTIONS.
See Resolutions of Congress.
JUDGMIENTS,
See Conisular Courts.
154 JUDICIAL EXPENSES-JURY DE MEDIATATE.
JUDH6CIAHL EXIPIENSIES.
See Consular Courts.
JUIRHSIDHCTION.
See Crimes.
Departments of Government.
Easterritoriality.
Foreign Consuls.
Public Ministers.
Sovereignty.
1. Jurisdiction of consular courts in China discussed.
- Judicial authority in China, 7 Op., 495, Cushing, (1855.
2. Discussion of jurisdiction over acts committed on board of American
ships on the high seas and in foreign ports. -
The Atalanta, 8 Op., 73, Cushing, (1856.)
3. Every nation has exclusive jurisdiction over the waters adjacent to
its shores, to the distance of a cannon-shot or marine league.
3. The brig Ann, 1 Gallison, 62.
4. A gun was fired from an American ship, lying in the harbor of
Raiatea, one of the Society Isles, by which a person on board a
schooner, belonging to the natives and lying in the harbor, was
killed: Eield, that the act was, in contemplation of law, done on
board the foreign schooner, where the shot took effect, and that
jurisdiction of it belonged to the foreign government, and not to
the courts of the United States, under the Crimes Act of 1790.
4. United States vs. Davis, 2 Summer, 482.
JTURY | DE NIIEDIETATE.
**
1. A person born in Ireland, but naturalized as a citizen of the United
States, is not entitled, when arraigned in a British court for the
offense of treason-felony, to the privilege of a jury de medietate.
• Warren's case, 12 Op., 319, Stanbery, (1867.)
2. As the right of trial by jury de medietate does not exist in any of the
TInited States, we have no right to complain that an American
citizen, indicted for crime in Great Britain, is not entitled to
such privilege. --
Iö.
LAws—LETTERS ROGATORY. 155.
|LAWS.
See Resolutions of Congress.
1. The Supreme Court of the United States has uniformly held that in
the term laws, used in a treaty, is included custom and usage,
when once settled, though it may be “comparatively of recent
date, and is not one of those to the contrary of which the mem-
ory of man runneth not, which contributed so much to make up
the common-law Code.” -
Strother vs. Lwow8, 12 Peters, 436.
|LAWS (OF WAR,
. See Illicit intercourse.
Belligerants.
Civil war.
Contraband.
Neutrality.
LEAVE OF ABSIENCE,
See Compensation.
LEGAL TENDER.
See Treaties—Peru.
Spain.
LEGHSFLATIVE CONSTRUCTION.
I. Although it may have been a rule of an Executive Department to
construe an act of Congress relating to claims in a particular
manner, yet when Congress has afterward expressed an opinion
in conflict with that of the Department, such action of Congress
has been considered as in the nature of a legislative interpreta-
tion, which becoming courtesy to the legislative department re-
quires the Executive to observe. ſ
Case of representative of John M. Galt, 5 Op., 83, [84,] Johnson, (1849.)
H.ETTERS I ROGATORY.
1. The circuit court will issue letters rogatory for the purpose of obtain-
ing testimony, when the government of the place where the evi-
dence is to be obtained will not permit a commission to be
executed. Form of letters in such case given. -
Nelson vs. United States, 1 Peters, C. C., 235.
156 LIBEL–MARINERS.
ILLIABLE L.
See Public Ministers.
I L IGHTT-PHO}{USE ROUTES.
See Treaties—Denmark.
LIMIITED INTEECOURSE.
1. The Government of the United States clearly has power to permit
limited commercial intercourse with an enemy in time of war,
and to impose such conditions thereon as it sees fit; this power
is incident to the power to declare war, and to carry it on to a
successful termination.
It seems that the President alone, who is constitutionally
invested with the entire charge of hostile operations, may exer-
cise this power; but whether so or not, there is no doubt that,
with the concurrent authority of the Congress, he may exercise it
according to his discretion. -
Hamilton vs. Dillin, 21 Wallace, 73.
MIAJortity.
1. The international relation of the period of majority in the United
States considered. f
Baron von Gerolt's letter, 8 Op., 62, Cushing, (1856.)
MIALICIOUS PUBLICATIONS.
See Public Ministers.
MANDATony statuTEs.
See Statutes.
WIARINTERS,
See Seamen.
MARITIME WAR–MASTERS OF WESSELS. 157
MIA BRITHMIE WAIRs
See War.
1. During a maritime war between France and the United States, the
act of aiding or abetting France within the United States by a
French subject commissioned by France, and acting openly ac-
cording to his commission, will be hostility, and as such must be
treated according to the laws of war. r
Treason, 1 Op., 84, Lee, (1798.)
MIAIRESI HALS OF CONSTU LARE COURTS,
See Consular Courts.
MIA BRMAGES.
1. Consuls of the United States have no lawful authority as such to
Solemnize marriages in countries comprehended within the pale
of the international public. law of Christendom, (but see subse-
quent act, 1860, section 31, 12Stat., 79, R. S., $4082,) otherwise, in
countries not Christian, where by convention or in fact the rights
of exterritoriality are possessed by citizens of the United States.
Celebration of marriages, 7 Op., 18, Cushing, (1854.)
MARRIED WOMEN.
See Citizenship.
MARTHAL LAw.
1. Martial law is the law of military necessity in the actual presence of
war. It is administered by the General of the Army, and is
in fact his will. Of necessity it is arbitrary, but it must be
obeyed.
United States vs. Diekelman, 92 U. S. R., S. C., 526.
2. A merchant-vessel of one country visiting, for the purpose of trade,
a port of another where martial law has been established, under
belligerent right, subjects herself to that law while she is in such
port. d
Ib.
N IASTERS OF WIESSIE LS,
See Seamen.
158 MESILLA TREATY—MUNITIONS OF waR.
TV IESI L LA TREATY,
1. With Mexican Republic (Pub. Trs., 503) construed.
Construction of, 7 Op., 582, Cushing, (1855.)
2. The question whether the United States will pay according to their
original tenor drafts drawn by the Mexican government, under
the Mesilla convention, or suspend the payment at the subse-
Quent request of that government, is matter of political not of
legal determination.
Payment of drafts, 7 Op., 599, Cushing, (1855.)
MII LITARY COURTS.
1. The Constitution did not prohibit the creation by military authority
of courts for the trial of civil causes during the civil war in
conquered portions of the insurgent States. The establishment
of such courts was the exercise of the ordinary rights of conquest.
Mechanics and Traders' Bank vs. Union Bank, 22 Wallace, 276.
2. A court established by proclamation of the commanding general in .
New Orleans, on the 1st of May, 1862, on the occupation of the
city by the Government forces, will, in the absence of proof
to the contrary, be presumed to have been authorized by the
President.
- Ib.
MINISTERs PLENIP'o'TENTIARY.
See Compensation.
Diplomatic Officers.
Public Ministers.
IWIOROCCO,
See Easterritoriality.
MUNICIPAL LAWS,
See Sovereignty.
M IUNITIONS OF WAIR,
See Neutrality.
Contraband.
MUSCAT—NATURALIZATION. 159
|WIUSCAT,
See Eaſterritoriality.
|WIUTINY.
See Crimes.
NATH ſºl\AHL CHARACTER.
1. A vessel loses her national character by assuming a piratical charac-
ter, and a piracy committed by a foreigner from on board such a
vessel, upon any other vessel whatever, is punishable under sec-
tion 8 of act of 1790, (1 Stat., 113; R. S., § 5360.) 2-
United States vs. Pirates, 5 Wheaton, 184.
2. The commission of a public vessel, signed by the proper authorities
of the nation to which it belóngs, is complete proof of national
character; it imports absolute verity, and the title to the vessel,
or mode in which it was acquired, is not examinable by a foreign
COUlrt.
The Santissima Trinidad, 7 Wheaton, 283,
3. In order to prove that an American vessel has ceased to be an Ameri-
can vessel, it is not enough to prove that she was taken abroad
and sold; it must be proved that she was sold and transferred to
a foreigner.
United States vs. Gordon, 5 Blatchford, 18.
NATURALIZATION.
See Citizenship.
1. Naturalization signifies the act of adopting a foreigner and clothing
him with all the privileges of a native citizen or subject
Christian Ernst's case, 9 Op., 356, Black, (1859.)
2. Where a person was admitted to citizenship July 10, 1873, by a State
court having jurisdiction, and it afterward appears by a copy of
the registry of births at Hamburg, where he was born, that he
was born February 22, 1853: Held, that as the court having juris-
diction had found that the facts and conditions to entitle him to
citizenship existed, that such finding had the effect of a judg-
ment, and was conclusive.
* . Levy's case, 14 Op., 509, William8, (1874.)
160 NATURALIZED CITIZENS.
3. Under the act of 1795, (1 Stat., 414, repealed,) the administration of
the oath of allegiance amounts to a judgment of the court for the
admission of the applicant to the rights of a citizen, and implies
that all prerequisites had been complied with. *
# Campbell vs. Gordon, 6 Cranch, 176.
4. Under the act of 1802, (2 Stat., 153, R. S., § 2172,) a minor child of a
* father so naturalized became a citizen, though not then within
the United States, provided she was resident therein at the time
of the passage of the act.
Ib.
5. The expression “Armies of the United States,” as used in the acts of
Congress with respect to naturalization, and particularly Section
20 of the act of 1862, (12 Stat., 597, R. S., § 2166,) does not in-
clude marines.
In re Bailey, 2 Sawyer, 200.
NATURAHLHZIEED CHTIZENS,
See Citzenship.
1. The opinion of a British judge, directing a plaintiff who had been a
British subject, but who had taken the oath of allegiance to the
United States, to be nonsuited, on the ground that the contract
which formed the subject-matter of the suit was unlawful between
British Subjects, and regarding the plaintiff as such, is founded
on the ancient and standing laws of Great Britain, which can be
altered only by the legislative power of the nation.
Green’s case, 1 Op., 53, Bradford, (1794.)
2. A person born in Ireland, but naturalized as a citizen of the United
States, is not entitled, when arraigned in a British court for the
Offense of treason-felony, to the privilege of a jury de mediatate.
The right being conferred by British law, must, in a British
Court, be regulated by that law.
- Warren's case, 12 Op., 319, Stanbery, (1867.)
3. It is well-established English law, that a native-born subject of Great
Britain is not capable of throwing off his allegiance.
Ib.
4. The statutes of the United States make no provision for trial by jury
de medietate. º
The right of jury de medietate does not exist at this time in any
of the States of the Union. -
Ib.
NEGOTIABLE PAPER—NEUTRAL GOODS. 161
5. The United States have no right to complain that one of its citizens,
indicted for a crime in Great Britain, is not entitled to a privilege
not accorded by Federal or State law to a subject of Great Brit-
ain indicted for crime Committed in the United States.
- Ib.
6. A question as to status or citizenship, arising in the United States,
is determinable by our law; or, if it arose on the high seas, or
anywhere out of the jurisdiction or operation of British law, it
would be a question either under our own law or the public law,
according to the circumstances under which the right was asserted
or denied.
Ib.
7. A citizen of the North German Confederation, who becomes a natur-
alized citizen of the United States, must have had an uninter-
rupted residence of five years in the United States before he is
entitled to the immunities guaranteed by the treaty with that
confederation of 1868, (Pub. Trs., 575.) The recital contained in
the record of the naturalization proceedings, that he had resided
continuously in this country for more than five years, is not con-
clusive as to the fact so recited.
Case of Moses Stern, 13 Op., 376, Akerman, (1871.
8. By the first article of the convention of 1870, between the United
States and Austria-Hungary, (Pub. Trs., 33,) a residence of five
years, in addition to naturalization, is a prerequisite to a change
of citizenship.
Heinrich's case, 14 Op., 154, Williams, (1872.)
9. A naturalized citizen who resides abroad has the same right to the
protection of the Government, and stands upon the same footing .
in all other respects, as a citizen by birth residing abroad.
Reply to President's inquiries, 14 Qp., 295, Williams, (1873.)
NEGOTIABLE PAPER.
See Bills of Eachange.
NEUTRAL Goods.
1. The rules that neutral bottoms make neutral goods, and that ene-
mies' bottoms make enemies' goods, are not only separable in
their nature, but have been generally separated; and they are
held by the United States to be distinct. -
Consequently, a stipulation for the former rule in a treaty does
not silently introduce the latter.
The Nereide, 9 Cranch, 388.
11
162 NEUTRALITY.
2. The fact that Spain administers the latter rule as against neutrals,
2
does not authorize the court to retaliate upon Spanish subjects a
like departure from the law of nations without legislation direct-
ing it.
Hö.
. A neutral may lawfully ship his goods on board an armed belliger-
ent Vessel, and if her force is used in a combat in which he gives
no aid, his goods are not affected.
- Ib,
NEHITRAFLITY.
See Treaties.
. Acts of hostility committed by American citizens against such as
are in amity with us, being in violation of a treaty and against
the public peace, are offenses against the United States, so far as
they were committed within the territory or jurisdiction of the
United States, (and the high seas are within such jurisdiction as
to citizens of the United States.) ~
Attack on Sierra Leone, 1 Op., 57 Bradford, (1795.)
. Acts of the kind committed in foreign countries are not within the
jurisdiction, and the offender must be dealt with abroad, and after
proclamation by the President will have forfeited all protection
from the American Government.
Ib.
. It is the right of an enemy to purchase goods and instruments of
War of a neutral nation; such right may be taken away by a law
forbidding it. - &
If the reason for the passing of such an act were to impede
the military operations of one belligerent and to favor another,
this would constitute, a breach of neutrality.
Sale of ships to the British, 1 Op., 61, Lee, (1796.)
. As a rule it is not prohibited to a neutral vessel to carry provisions
for the fleets or armies of belligerents. A foreign government
may purchase ships in the United States and load them with pro-
visions for their fleets or armies, and American mariners may
serve on such vessels, provided they do not form part of an expe-
dition or closely follow the army from place to place.
- Ib.
. A citizen of a neutral state who, for hire, serves on a neutral ship
employed in contraband commerce with either of the belligerent
powers, is not liable to any prosecution for so doing by the muni-
cipal laws of his own state, nor is he punishable personally,
though taken in the act, by that belligerent nation to whose det-
riment the prohibited trade would operate. Ib
NEUTRALITY. - 163
6. It is reasonable, as applicable to all nations, to permit a portion of a
prize cargo to be sold under the Superintendence of the public
officers for reparation of the ship; as to France, it is within the
19th article of the treaty of 1778. (Pub. Trs., 209—annulled by
act of 1798—1 Stat., 578.) -
Reparation of prize ships, 1 Op., 67, Lee, (1796.)
7. There is no law that can prevent a merchant or ship-owner selling
his vessel and cargo to a citizen or inhabitant of South America;
but if a vessel be fitted out, furnished, &c., with intent to employ
it in the service of any foreign state, to cruise or commit hostili-
ties upon the subjects or property of another state with which
the United States is at peace, it would be unlawful.
Sale of an English ship, 1 Op., 190, Rush, (1816.)
8. A vessel fitted out at Savannah with armament, munitions, and sea-
stores, and afterward found with a commission from the republic
of Venezuela to cruise against the subjects of Spain, and having
sailed on such a cruise, but under another name, and being seized
at Savannah on the charge of having been fitted out in a port of
the United States to cruise against Spain, is a fit case for adjudi-
cation, and not one calling for the interference of the Govern-
ment. {
The Corony, 1 Op. 231, Wirt, (1818.)
9. Colombian vessels are entitled, under articles 6 and 31 of the treaty
with that republic of 1824, (Pub. Trs., 151 and 157,) to make re-
pairs in our ports when forced into them by stress of Weather, but
not to enlist recruits there, either from our citizens or from for-
eigners, except such as may be transiently within the United
States.
The Libertador, 2 Op., 4, Wirt, (1825.)
10. It is not a breach of neutrality to permit a Spanish merchantman,
captured as a prize by a Mexican war-vessel, and brought by the
latter into an American port in an unseaworthy condition, to be
repaired and put in a condition to be carried home to a port
of the captor for adjudication, whether her disabilities proceeded
from the Sea or the action.
Case of a Spanish ship, 2 Op., 86, Wirt, (1828.)
11. There is high authority for the position that a prize may be brought
into a neutral port and sold, without violating the law of nations
concerning neutrality; but as there is no doubt of the authority
of the neutral sovereign to prohibit such sales, and as the
strongest considerations of expediency and safety urge him to do
so, the better course, clearly, is to prohibit them.
Ib.
164 NEUTRALITY.
12. It would be a breach of neutrality to permit a neutral port to be
made a cruising station for a belligerent, or a place of depot for
his spoils and prisoners.
Ib.
13. The building of two schooners of war in New York for the Mexican
government, and preparing to furnish the same with guns and
the usual military equipment, is clearly a violation of Section 3
of the act of 1818. (3 Stat., 447; R. S., § 5283.)
Case of schooners built for Mexico, 3 Op., 738 Legaré, (1841.)
14. These vessels having been built expressly for the service of
Mexico, which is waging war against Texas, (recognized by the
TJnited States as an independent State,) the persons are liable to
the penalties of the act, and the vessels to forfeiture.
Ib.
15. The policy of this country is, and ever has been, perfect neutrality
and non-interference in the quarrels of other nations.
Ib.
16. Where certain vessels, being constructed in the United States for
Mexico for the purpose of waging war against Texas, (an inde-
pendent State,) were not delivered, nor the property changed,
within our jurisdiction, but were sent out of port under control of
our own citizens unarmed, and where every possible precaution had
been taken to insure pacific conduct on the high seas, the doc-
trine of the preceding opinion is reaffirmed, but does not apply
as fully to the case now presented as was supposed from the first
statement of the case.
Case of schooners built for Meacico, 3 Op., 741, Legaré, (1842.)
17. Nevertheless, although the sale is made abroad, if the vessels were
equipped by American citizens within the United States for
belligerent purposes, and for a nation belligerent to another with
which ours is at peace, knowing the purposes for which they are
to be employed, it is insisted that the equipment is repugnant to
the act of 1818. (3 Stat., 447; R. S., § 5283.)
Ib.
18. All trading with a belligerent, in ships of war already equipped for
service, is repugnant to the settled policy of the United States
and to the Solemn declaration of Congress in the act of 1818.
(3 Stat., 447; B. S., § 5286.)
However popular opinion may have changed on so important a
subject, the aet of 1818, like that of 1794, (1 Stat., 381, repealed,)
was intended to Secure, beyond all risk of violation, the neutral
and pacific policy which they consecrate as our fundamental
law. *
Ib.
NEUTRALITY. 165
19.
21.
23.
2
5
26.
All equipping within our jurisdiction of vessels of war for a bellig-
erent by an American citizen, knowing the purposes for which
they are to be employed, is unlawful. I
- 5.
. The enlistment of seamen or others for marine Service on Mexican
steamers in the port of New York, they not being Mexicans
transiently within the United States, is a clear violation of the 2d
section of the act of 1818, (3 Stat., 448; R. S., § 5282;) and the
persons enlisted, as well as the officers enlisting them, are liable
to the penalties of the act.
Enlistment of Seamen for Mexico, 4 Op., 336, Nelson, (1844.)
The augmentation of the force of the Mexican war-steamers in the
port of New York, by adding to the number of their guns, or by
changing those originally on board for guns of larger caliber, or
by the addition of any equipment solely applicable to War, is a
violation of the 5th section of the same act. (R. S., § 5285.) II.
. The repair of their bottoms, copper, &c., does not constitute any
increase or augmentation of force within the meaning of the act;
and the steamers themselves are not subject to seizure by any
judicial process under it. •
* Ib.
The commanders, and officers of vessels of other nations, found to
have violated the statute in question, are amenable to the crimi-
nal jurisdiction of our courts.
* ** Ib.
. The purchase and fitting out of a war-steamer by the German gov-
ernment in the port of New York, while a state of war exists
between that government and Denmark, adapted for cruising and
Committing hostilities against the property or subjects of the lat-
ter, is contrary to the provisions of the 3d section of the act of
1818. (3 Stat., 447; R. S., § 5283.)
Purchase of steamer by Germany, 5 Op., 92 Johnson, (1849.)
. The act makes no distinction between the degrees of intent with
which a vessel shall be fitted out ; any intent to commit hostili-
ties against a nation with which the nation fitting her out is at
War, is within its prohibition.
* * Iö.
*
Açcording to the law of nations, neutrals have the right to purchase
during the war the property of belligerents, whether ships or
anything else; and any regulation of a particular state which
contravenes this doctrine is against public law, and in mere der-
Ogation of the Sovereign authority of all other independent states.
Letter of British minister as to purchase of ships, G Op.,638, Cushing, (1854.)
166 NEUTRALITY.
27. A citizen of the United States may lawfully purchase a merchant-
ship of either of the belligerents—Turkey, Russia, Great Britain,
France, or Sardinia; if purchased bona fide, such ship becomes
American property and entitled as such to the protection and to
the flag of the United States; and although she cannot take out
. a register by our law, yet that is because she is foreign-built, not
because she is belligerent-built, and she may obtain a register by
special act of Congress. Ib
28. It is a settled principle of the law of nations that no belligerent
can rightfully make use of the territory of a neutral state for bel-
ligerent purposes without the consent of the neutral government.
British consul’s case, 7 Op., 367, Cushing, (1855.)
29. The undertaking of a belligerent to enlist troops of land or Sea in a
neutral state, without the previous consent of the latter, is a
hostile attack on its national sovereignty. I
b.
A neutral state may, if it please, permit or grant to belligerents the
liberty to raise troops of land or sea within its territory; but for
the neutral state to allow or concede this liberty to one belliger-
ent and not to all, would be an act of manifest belligerent par-
tiality, and a palpable breach of neutrality.
s
0.
Ib.
31. The United States constantly refuse this liberty to all belligerents
alike, with impartial justice; and that prohibition is made known
to the World by a permanent act of Congress. Ib
Great Britain, in attempting by the agency of her military and civil
authorities in the British North American Provinces, and her
diplomatic and consular functionaries in the United States, to
raise troops here, committed an act of usurpation against the
sovereign rights of the United States.
All persons engaged in such undertaking to raise troops in the
United States for the military service of Great Britain, whether
citizens or foreigners, individuals or officers, unless protected by
diplomatic privilege, are indictable as malefactors by statute.
3
2.
Ib.
33. Foreign consuls are not exempted, either by treaty or by the law of
nations, from the penal effect of the statue. Ib
34. The act of Congress prohibiting foreign enlistments is a matter of
domestic or municipal right, as to which foreign governments
have no right to inquire, the international offense being independ-
ent of the question of the existence of a prohibitory act of
Congress.
Ib.
NEUTRALITY. - 167
35,
36.
37.
38.
39.
40.
41.
43.
A foreign minister who engages in the enlistment of troops here for
his government, is subject to be summarily expelled from the
country; or, after demand of recall, dismissed by the President.
Ib.
Miscellaneous expenditures, incurred by order of the State Depart-
ment, for the purpose of preserving the neutrality of the United
States, are chargeable to the appropriate funds placed by law in
the control of that Department. - -
Case of the United States and Ocean Wave, 7 Op., 398, Cushing, (1855.)
The doctrine of the right of neutrals to purchase the ships of bellig-
erants re-affirmed. - -
† Case of purchase of Ships, 7 Op., 538, Cushing, (1855.)
If agents of the British government, being instructed to enlist mili-
tary recruits, succeed by ingenious devices in evading the munici-
pal law, and so escape punishment as malefactors, such successful
evasion serves to increase the intensity of the international wrong
done to the United States.
British enlistments, 8 Op., 468, Cushing, (1855.)
Beport to the President on the legal questions involved in the enlist-
ment of troops by British officers in the United States.
British enlistments, 8 Op., 476, Cushing, (1856.)
The commander of the military department of California has no
authority to prohibit our own citizens from exporting munitions
of war, by way of merchandise, to the belligerents in Mexico.
Exportation of arms to Mexico, 11 Op., 408, Speed, (1865.)
Neutrals may lawfully sell at home to a belligerent purchaser, or
carry themselves to the belligerent powers, contraband articles,
Subject to the right of seizure in transitu. The right of the neu-
tral to transport, and of the hostile power to seize, are conflicting
rights, and neither party can charge the other with criminal act.
Ib.
, The district attorney should not be instructed, in the case of a vessel
seized and libeled for an intended breach of the neutrality laws,
to consent to the bonding of the vessel.
The Meteor, 11 Op., 444, Speed, (1866.)
There is no law or regulation which forbids any person or govern-
ment, whether the political designation be real or assumed, from
purchasing arms from citizens of the United States, and shipping
them at the risk of the purchaser. -
Arms for Maasimilian, 11 Op., 451, Speed, (1865.)
The rule of international law is well established that a foreigner
Who resides in the country of a belligerent can claim no indem-
nity for losses of property occasioned by acts of war of the other
'belligerent. - -
Case of Wheelwright and others, 12 Op., 21, Stanbery, (1866.)
168 NEUTRALITY.
45.
46.
47.
48.
49.
50.
51.
American merchants domiciled for commercial purposes at Valpa-
raiso cannot sustain a claim for indemnity against Spain or Chili
for losses of merchandise in the conflagration caused by the bom-
bardment of Valparaiso by the Spanish fleet in March, 1866. Ib
Upon the facts of the case as to the steamship R. R. Cuyler, it ap-
pears that this vessel was prematurely and without probable
cause libeled for violation of the neutrality laws; and she should
be released on the owners giving the bond required by Section
10 of the act of 1818. (3 Stat., 449; R. S., § 5289.)
The R. R. Cuyler, 12 Op., 113, Stanbery, (1867.)
Judicial proceedings should not be instituted by the United States
under section 3 of the act of 1818 (3 Stat., 448; R. S., § 5283)
against certain gunboats building in New York for the Spanish
government, and which, there is reason to believe, are to be em-
ployed by that government against Cuba. The provisions of that
section examined and shown to be inapplicable, in view of all the
circumstances, to the case under consideration.
Neutrality act, 13 Op., 177, Hoar, (1869.)
Proof that a vessel transported from Aspinwall to the coast of Cuba,
men, arms, and munitions of war, destined to aid the Cuban in-
surgents, is insufficient by itself to warrant proceedings against
such vessel for violation of the neutrality law of the United
States. (R. S., § 5281, et seq.)
Çase of the Hornet, 13 Op., 541, Akerman, (1871.)
The papers presented by the Secretary of State in the case of the
steamer Virginius do not establish any violation of the neutrality
laws, either by the owners of the steamer or by the persons en-
gaged thereon.
- The Virginius, 14 Op., 49, Bristow, acting, (1872.)
It is not a violation of the neutrality laws of the United States to
sell to a foreigner a vessel built in this country, though suited to
be a privateer, and having some equipments calculated for War
but frequently used by merchant ships.
Moodie vs. The Ship Alfred, 3 Dallas, 307.
Under article 19 of the treaty with France of 1778, (Pub. Trs., 209,
annulled by act of 1798, 1 Stat., 578,) a French privateer has a
right to make repairs in our ports. The replacement of her force
is not an augmentation.
Moodie vs. The Ship Phoebe Anne, 3 Dallas, 319.
. If a capture be made by a privateer which had been illegally equipped
in a neutral country, the prize-courts of such neutral country have
power, and it is their duty, to restore the captured property, if
brought within their jurisdiction, to its owner.
Brig Alerta vs. Moran, 9 Cranch, 359.
NEUTRALITY. 169
53. Section 7 of the neutrality act of 1794 (1 Stat., 384, repealed) does
not authorize the President to employ civil officers to make seiz-
UII'éS.
Gelston vs. Hoyt, 3 Wheaton, 246.
54. A capture made within the neutral territory is, as between the
belligerents, rightful; and its validity can only be questioned by
the neutral State.
The Anne, 3 Wheaton, 435.
55. If the captured vessel commence hostilities upon the captor, she for-
feits the neutral protection, and the capture is not an injury for
which redress can be sought from the neutral sovereign.
Ib.
56. The treaty with Spain of 1795 (Pub. Trs., 706) requires restoration
of captures in only two cases, piracy and captures in violation of
our neutrality.
The Nuestra Señora de la Caridad, 4 Wheaton, 497.
57. In cases of violation of our neutrality by any of the belligerents, if
the prize comes voluntarily within our territory, it is restored to
the original owners by the courts.
La Amistad de Rues, 5 Wheaton, 385.
58. But their jurisdiction for this purpose, under the law of nations,
extends only to restitution of the specific property, with costs and
* expenses during the pendency of the suit, and does not extend
to the infliction of vindictive damages or compensation for plun-
derage, as in ordinary cases of marine torts.
Ib.
59. A capture of Spanish property, in violation of our neutrality, by a
vessel built, armed, equipped, and owned in the United States, is
illegal, and the property, if brought within our territorial limits,
will be restored to the original owners.
La Concepcion, 6 Wheaton, 235.
60. The cases of The Cassius (3 Dallas, 121) and The Invincible (1 Wheat-
on, 238) decide that neither a public vessel of another nation,
nor its officers, are liable to answer in our courts for a capture on
the high seas; but do not touch the jurisdiction over her prizes
lying in our ports, which extends to libels in rem for restitution
of such prizes made in violation of our neutrality.
The Santissima Trinidad, 7 Wheaton, 283.
61. A foreign public vessel is exempted from the jurisdiction of our
.* courts by an exception grounded on common usage and public
policy; but this exception does not extend to her prizes, or cap-
tured goods landed here, which are liable to the jurisdiction of
our Courts for the purpose of inquiry and restitution, if a case there-
for is made.
Ib.
170 - NEUTRALITY.
62. There is nothing in our laws or in the law of nations that forbids
our citizens’ from sending armed vessels, as well as munitions of
war, to foreign ports for sale.
Ib., [340.]
63. An augmentation of the force of a foreign belligerent vessel in a port
of the United States, we being neutral, by a substantial increase
of her crew, is a breach of our neutrality. Ib
64. A capture made by a belligerent, whose force had been augmented
in violation of our neutrality laws during the cruise immediately
succeeding such violation, presents a case for restitution by our
COurtS.
Ib.
65. It is firmly settled that, if captures are made by vessels which have
violated our neutrality laws, the property may be restored if
brought within our territory. -
The Gran Para, 7 Wheaton, 471.
The Santa Maria, 7 Wheaton, 490.
The Monte Allegre, 7 Wheaton, 520.
66. This court has never decided that the offense (of fitting out, &c., in
violation of the neutrality acts) adheres to the vessel, whatever
changes may have taken place, and cannot be deposited at the
termination of the cruise in preparing for which it was committed ;
and, as the Irresistible made no prize on her passage from Balti-
more to the river La Plata, it is contended that her offense was
deposited there, and that the court cannot connect her subsequent
cruise with the transactions of Baltimore. .
The Gran Para, 7 Wheaton, 471, [487.]
67. If this were to be admitted in such a case as this, the laws for the
preservation of our neutrality would be completely eluded, so far
as this enforcement depends on the restitution of prizes made
in violation of them. Vessels completely fitted in our ports for
military operations need only sail to a belligerent port, and there,
after obtaining a commission, go through the ceremony of dis-
charging and re-enlisting their crews to become perfectly legiti-
mate cruisers, purified from every taint contracted at the place
where all their real force and capacity for annoyance was ac-
quired. This would, indeed, be a fraudulent neutrality, disgrace-
ful to our own Government, and of which no nation would be the
dupe. It is impossible for a moment to disguise the facts, that
the arms and ammunition taken on board the Irresistible at Balti-
more were taken for the purpose of being used on a cruise, and
that the men there enlisted, though engaged, in form, as for a
commercial voyage, were not so engaged in fact. There was no
commercial voyage, and no individual of the crew could believe
that there was one.
Iö.
NEUTRALITY. 171
68. If property captured in violation of our neutrality laws is found
in the hands of the master of the capturing vessel, it is immate-
rial whether a condemnation has intervened, or what changes of
title have occurred.
2 The Arrogante Barcelones, 7 Wheaton, 496.
69. Captures by vessels fittetl out in the United States, in violation of
neutrality, held illegal when the property is brought within our
jurisdiction.
The Fanny, 9 Wheaton, 658, [668.]
70. Where a person was indicted under the third section of the act of 1818
(3 Stat., 448; R. S., § 5283) with being knowingly concerned in the
fitting out of a vessel with intent to employ her in the service of
a foreign people, viz, the United Provinces of Buenos Ayres,
against the subjects of the Emperor of Brazil, with whom the
United States are at peace: Eield, that to bring the defendant
within the act, either fitting out or arming will constitute an of-
fense.
United States vs. Quincy, 6 Peters, 445.
71. It is not necessary that the vessel, when she left a port of the United
States for a foreign port, and during her passage, and when she
arrived at the foreign port, should be armed and in condition for
hostilities, to constitute an offense. -
Ib.
72. The preparations to commit hostilities must be made within the
United States, and the intention with respect to the employment
of the vessel must be formed before she leaves the United States.
- Ib.
73. The law does not prohibit armed vessels belonging to citizens of
the United States from sailing, it only requires the owners to give
security. Collectors are not authorized to detain vessels built for
warlike purposes and about to depart, unless circumstances ren-
der it probable that they are to be employed in violation of the
act.
Ib.
74. A contract by an inhabitant of Texas to convey land in that coun-
try to citizens of the United States in consideration of advances
of money made by them in the State of Ohio, to enable him to
raise men and procure arms to carry on the war with Mexico, the
independence of Texas not having been at that time acknowl-
edged by the United States, was contrary to our national obliga-
tions to Mexico, violated the public policy of the United States,
and cannot be specifically enforced by a court of the United
States. º
Rennett vs. Chambers, 14 Howard, 38.
}
172 NEUTRALITY.
~,
75.
76.
77.
78.
79.
80.
81.
82.
83.
An American citizen may, under the modern usage of nations, enter
either the land or naval Service of a foreign government without
compromising the neutrality of his own.
“w. The Santissima Trinidad, 1 Brockenbrough, 478.
It is not a crime, under the neutrality law, to leave this country.
with intent to enlist in foreign military service.
- The United States vs. Louis Kazinski, 2 Sprague, 7.
It is not a crime to transport persons out of the country with
their own consent who have an intention of so enlisting.
Ib.
To constitute a crime under the statute, such person must be hired
or retained to go abroad with the intent to be so enlisted.
Ib.
Where an officer belonging to a military force ordered out by the
President under the 8th section of the act of March 10, 1838,
(5 Stat., 214,) and, instructed by his commanding officer, seized
property as a precautionary measure, to prevent an intended
violation of the act, that it might be detained until an officer
having power to seize and hold it under the statute should arrive:
Held the Seizure was lawful. s A -
Stoughton vs. Dimick, 3 Blatchford, 356.
The landing of a cargo contraband of war, on the shore of the
country of one belligerent, at a point not blockaded, is not an act
of hostility against the other belligerent.
The Florida, 4 Benedict, 452.
Section 6 of the neutrality act of 1818, (3 Stat., 449; R. S., § 5286,)
punishing the offenses of beginning or setting on foot, or providing
or preparing the means for a military expedition or enterprise for
the invasion of a country with which the United States is at peace,
is not violated without the commission of an overt or definite act.
United States vs. Lumsden, 1 Bond, 5.
If the means provided were procured to be used on the occurrence
of a future contingent event, no liability is incurred under the
Statute.
Ib.
If the intention is that the means provided shall only be used at a
time and under circumstances when they could be used without
a violation of law, no criminality attaches to the act.
Jr. g Ib.
NEUTRALS. 173
2.
3.
5.
wº
6
7.
NTEUTRAILS.
Belligerent ships of war, privateers, and the prizes of either, are en-
titled, on the score of humanity, to temporary refuge in neutral
waters from casualties of the Sea and land.
The President and prize, 7 Op., 122, Cushing, (1855.)
By the law of nations, belligerent ships of war, with their prizes,
enjoy asylum in neutral ports for the purpose of obtaining sup-
plies or undergoing repairs, according to the discretion of the
neutral Sovereign, who may refuse the asylum absolutely, or grant
it under such conditions of duration, place, and other circum-
stances, as he shall see fit ; provided, that he must be strictly im-
partial in this respect toward all the belligerent powers.
Ib.
Where the neutral state has not signified its determination to refuse
the privilege of asylum to belligerent ships of war, privateers, or
their prizes, either belligerent has a right to assume its existence,
and enter upon its enjoyment, subject to such regulations and
limitations as the neutral state may please to prescribe for its
own security.
Ib.
. The United States have not by treaty with any of the present bellig-
erents bound themselves to accord asylum to either; but neither
have the United States given notice that they will not do it; and,
of course, our ports are open for lawful purposes to the ships of
war of either Great Britain, France, Russia, Turkey, or Sardinia.
- Ib.
It is well known that a vessel libeled as enemy's property is con-
demned as prize if she act in such a manner as to forfeit the
protection to which she is entitled by her neutral character. If,
for example, a search be resisted, or an attempt be made to enter
a blockaded port, the laws of war, as exercised by belligerents,
authorize a condemnation as enemy's property, however clearly
it may be proved that the vessel is in truth the vessel of a friend.
Maley vs. Shattuck, 3 Cranch, 488.
A vessel captured as prize of war is, while lying in the port of a neu-
tral, still in the possession of the Sovereign of the captor, and
that possession cannot be rightfully divested.
Hudson vs. Guestier, 4 Cranch, 293, [295, 296.]
A neutral may lawfully ship his goods on board an armed belligerent
vessel; and if force is used in a combat in which he gives no aid,
his goods are not affected.
The Nereide, 9 Cranch, 388.
174 NEUTRALS.
8. Neutral muniments, however regular and formal, if colorable only, do
not affect belligerent rights. w
The Rugen, 1 Wheaton, 61, [66.]
9. The capture of a neutral ship having enemy’s property on board is a
strictly justifiable exercise of the rights of war. It is no wrong
done to the neutral, even though the voyage be thereby defeated.
The captors are not, therefore, answerable in poenam to the neu-
tral for the losses which he may sustain by such lawful exer-
cise of belligerent rights.
The Antonia Johanna, 1 Wheaton, 159.
10. An attempt has been made to distinguish this case from the ordinary
cases of employment in the transport service of the enemy, upon
the ground that the war of Great Britain against France was a
war distinct from that against the United States, and that Swed-
ish Subjects had a perfect right to assist the British arms in re-
spect to the former, though not to the latter. Whatever might
be the right of the Swedish sovereign, acting under his own au-
thority, we are of opinion that if a Swedish vessel be engaged in
the actual service of Great Britain, or in carrying stores for the
exclusive use of the British armies, she must, to all intents and
purposes, be deemed a British transport. It is perfectly imma-
terial in What particular enterprise those armies might, at the
time, be engaged; for the same important benefits are conferred
upon an enemy, who thereby acquires a greater disposable force.
to bring into action against us. Per Story.
- The Commercen, 1 Wheaton, 382.
[Chief-Justice Marshall strongly dissented from the application
of this principle.]
11. The general rule that the neutral carrier of enemy's property is enti-
tled to his freight, is now too firmly established to admit of dis-
cussion; but to this rule there are many exceptions. If the neu-
tral be guilty of fraudulent or unneutral conduct, or has inter-
posed himself to assist the enemy in carrying on the war, he is
justly deemed to have forfeited his title to freight. Hence, the
carrying of contraband goods to the enemy ; the engaging in the
coasting or colonial trade of the enemy; the spoliation of papers,
and the fraudulent suppression of enemy's interests, have been
held to affect the neutral with the forfeiture of freight; and in
cases of a more flagrant character, such as carrying dispatches
or hostile military passengers, an engagement in the transport
service of the enemy, or a breach of blockade, the penalty of
confiscation of the vessel has also been inflicted. I
* *. b.
12, That a belligerent may lawfully blockade the port of his enemy is
admitted ; but it is also admitted that this blockade does not, ac-
, NEUTRALS. 175
13.
14.
15.
16.
17.
18.
19.
20.
21.
cording to modern usage, extend to a neutral vessel found in port,
nor prevent her coming out with the cargo which was on board
when the blockade was instituted.
Olivera vs. Union Insurance Co., 3 TV heaton, 194.
Where a neutral ship-owner lends his name to cover a fraud with re-
gard to the cargo, this circumstance will subject the ship to con-
demnation.
- The Fortuna, 3 Wheaton, 236.
Where a capture is made by captors acting under the commission
of a foreign country, such capture gives them a right which no
other nation neutral to them has a right to impugn, unless for the
purpose of vindicating its own violated neutrality.
The Nereyda, 8 Wheaton, 108, ſ169.]
Neutrals may question the existence of a blockade, and challenge
the legal authority of the party which has undertaken to estab-
lish it.
Prize cases, 2 Black, 635.
One belligerent engaged in actual war has a right to blockade the
ports of another, and neutrals are bound to respect that right.
- Iö.
A vessel and cargo, even where perhaps owned by neutrals, may
be condemned as enemy property, because of the employment of
the vessel in enemy trade, and because of an attempt to violate a
blockade, and to elude visitation and search.
The Baigorry, 2 Wallace, 474.
A neutral who has resided in an enemy’s country resumes his neu-
tral rights as soon as he puts himself and his family in itimere to
return home to reside; and he has a right to take with him the
means of support for himself and his family in Specie. -
United States vs. Guillem, 11 Howard, 47.
Such property is not forfeited by a breach of blockade by the vessel
On board of which he has taken passage, if he personally is in no
fault.
Ib.
No trade homestly carried on between neutral ports, whether of the
same or of different nations, can be lawfully interrupted by bel-
ligerents; but good faith must preside over such commerce;
enemy commerce under neutral disguises has no claim to neutral
immunity. - *
The Bermuda, 3 Wallace, 514.
Neutrals may establish themselves, for the purposes of trade, in
ports convenient to either belligerent, and may sell or transport
176. NEUTRALS. .
to either such articles as either may wish to buy, subject to risks
of capture for violation of blockade, or for the conveyance of con-
traband to belligerent ports. ->
Ib.
22, Goods of every description may be conveyed to neutral ports from
neutral ports, if intended for actual discharge at a neutral port,
and to be brought into the common stock of merchandise of such
port ; but voyages from neutral ports intended for belligerent
ports are not protected in respect to seizure, either of ship or
cargo, by an intention, real or pretended, to touch at intermediate
neutral ports.
Ib.
23. Neutrals may convey to belligerent ports not under blockade what-
ever belligerents may desire to take, except contraband of war,
which is always subject to seizure when being conveyed to a
belligerent destination, whether the voyage be direct or indirect;
such seizure, however, is restricted to actual contraband, and does
not extend to the ship or other cargo, except in cases of fraud or
bad faith on the part of the owners, or of the master with their
Sanction.
Ib.
24. Vessels conveying contraband cargo to belligerent ports not under
blockade, under circumstances of fraud or bad faith, or cargo of
any description to belligerent ports under blockade, are liable to
Seizure and condemnation from the commencement to the end of
the voyage.
Ib.
25. A voyage from a neutral port to a belligerent port is one and the
same voyage, whether the destination be ulterior or direct, and
whether with or without the inter position of one or more inter-
mediate ports; and whether to be performed by one vessel or sev-
eral employed in the same transaction and in the accomplishment
of the same purpose.
Ib.
26. Destination alone justifies seizure and condemnation of ship and
cargo in voyage to ports under blockade; and such destination
justifies equally seizure of contraband in voyage to ports not
under blockade; but in the last case ship and cargo not contra-
band are free from seizure, except in case of fraud or bad faith.
Iö.
27. Frankness and truth are especially required of the officers of cap-
tured vessels when examined in preparation for the first hearing
in prize. -
The Springbok, 5 Wallace, 1, [22.]
NEUTRALS. 4. 177
28. The trade of neutrals with belligerents in articles not contraband
is absolutely free, unless interrupted by blockade; the convey-
ance by neutrals to belligerents of contraband articles is always
unlawful, and such articles may always be seized during transit
by Sea. -
- * The Peterhoff, 5 Wallace, 28.
29. If a ship or cargo is enemy property, or if either be otherwise liable
to condemnation, the circumstance that the vessel, at the time of
the capture, was in neutral waters, would not, by itself, avail the
claimants in a prize court. It might constitute a ground of claim
by the neutral power, whose territories had suffered trespass, for
apology or indemnity. But neither an enemy, nor a neutral act-
ing the part of an enemy, can demand restitution of captured
property on the sole ground of capture in neutral waters.
* The Sir William Peel, 5 Wallace, 517.
* The Adela, 6 Wallace, 266.
30. A bona-fide purchase for a commercial purpose by a neutral, in his
own home port, of a ship of war of a belligerent that had fled to
such port in order to escape from enemy vessels in pursuit, but
which was bona-fide dismantled prior to the sale, and afterward
fitted up for the merchant service, does not pass a title above the
right of capture by the other belligerent. i
- The Georgia, 7 Wallace, 32.
31. A contract made by a consul of a neutral power with the citizen of
a belligerent state that he will “protect” with his neutral name,
from capture by the belligerent, merchandise which such citizen
has in the enemy's lines, is against public policy, and void.
- 4. Coppell vs. Hall, 7 Wallace, 542.
32. The question of prize or no prize belongs exclusively to the courts
of the captor; and in no case does a neutral assume the right of
deciding it. - -
But offenses may be committed by a belligerent against a neu-
tral, in his military operations, which it would be inconsistent
with the neutral character to permit, and which give to the other
belligerent, the party injured by those operations, claims upon
the neutral which he is not at liberty to disregard. In such a
situation, the neutral has a double duty to perform : he must
vindicate his own rights, and afford redress to the party injured
by their violation. 3. &
If the wrong-doer comes completely within the power of the
neutral, the practice of this Government is to restore the thing
wrongfully taken.
The Santissima Trinidad, 1 Brockenbrough, 478.
33. Whether a neutral, within the territory of one belligerent, commits
- a crime against that belligerent by intercourse with the enemy,
must depend on the nature of that intercourse. -
* Bas vs. Steele, 3 Washington; 381.
12 -
178 NEUTRAL TERRITORY-OFFICE.
34. The law of nations does not prohibit the carrying of enemies' goods
in neutral vessels; so far from so doing, upon the condemnation
of the goods, the vessel is entitled to freight. - -
But if a neutral endeavors, by false appearances, to cover the
property of a belligerent from the lawful seizure of his enemy,
such conduct identifies the neutral with the belligerent whom he
thus endeavors to protect, and is a fraud on the neutrality of his
own government, and upon the rights of the belligerent.
Schwartz vs. Ins. Co. of N. America, 3 Washington, 117.
35. If there be a house of trade established in the enemy's country, the
property of all the partners in the house is condemnable as prize,
notwithstanding some of them have a neutral residence. But
such connection will not affect the other separate property of the
partners having a neutral residence.
- The San José Indiano, 2 Gallison, 268.
NEUTRAL TERRITorty.
1. Delaware Bay within the capes is a part of the territory of the United
States, and, therefore, as between foreign belligerents, is neutral
territory. - -
The Grange, 1 Op., 32, Randolph, (1793.)
2. To attack an enemy in neutral territory is absolutely unlawful.
- Ib.
3. The seizure of a ship in neutral waters by an enemy being unlawful,
the duty arising from the illegal act is restitution.
- Ib.
4. Every nation has exclusive jurisdiction over the waters adjacent to
its shores to the distance of a cannon-shot or marine league.
- - The brig Ann, 1 Gallison, 62.
oATHs.
See Claim8.
©EFF}{C}E.
1. Where an act of Congress gives the President the power to appoint
an officer, withoit defining the tenure by which the office is to be
held, a commission may legally issue to the officer to hold the
office during the pleasure of the President.
Case of the register of wills, 1 Op., 212, Wirt, (1818.)
OFFICE. - 179
2. The President has power, during recesses of the Senate, to fill vacan-
cies that may happen to exist in the subordinate offices of the
Government, and is not limited in its exercise to those which oc-
cur during recesses. -
It was the intention of the Constitution that the offices created
by law, and which are necessary to the current operations of the
Government, should always be full, and that, when vacancies
happen, they shall not be protracted beyond the time necessary
for the President to fill them. -
Vacancies, power of the President to fill, 2 Op., 525, Taney, (1832.)
3. In case of appointments and removals by the President, where the
removal is not by direct discharge, or an express vacating of the
office by an independent fact, but merely by the operation of a
new commission or appointment, then the virtue of the old com-
mission ceases only when notice of the new commission is given
to the outgoing officer, either by the President or by the new offi-
cer exhibiting his commission to the old, or by other sufficient
notification. -- -
Case of chief justice of New Mexico, 6 Op., 87, Cushing, (1853.)
4. The tender of his resignation by an officer while insane is a nullity,
7
8
and may be so treated by the appointing officer, when satisfactory
evidence of such insanity is laid before him, although, in igno-
rance of it, he had accepted the resignation. º
Ravanagh's case, 10 Op., 229, Bates, (1862.) .
. The office of minister to Venezuela passed into “abeyance” under
section 3 of the act, 1867, (14 Stat., 430; R. S., § 1769,) by the
adjournment of the Senate on 27th July, 1868, without having
acted on the nomination of Mr. Stilwell thereto, made to that
body on 28th January, 1868. *. f
The minister to Venezuela, 12 Op., 457, Evarts, (1868.)
. Whether an office subsists and is vacant, or the office itself is abro-
gated, while the predicament of “abeyance” continues, is a ques-
tion of verbal rather than of substantial distinctions.
t - Ib.
. A person holding two compatible offices or employments under the
Government is not precluded from receiving the salaries of both.
Browning's case, 12 Op., 459, Evarts, (1868.)
. The act of 1850 (9 Stat., 542) precludes an officer who may perform,
under an ad interim authority, the duties of another office, in
which a vacancy exists, from receiving the compensation or salary
provided for both offices.
Ib
180 . OFFICE.
9.
10.
11.
13.
14.
15.
16.
17.
In such a case, the ad interim officer is not invested with a new office,
but he is merely required to perform new duties. -
- - - Iö.
The “tenure of civil-office act” does not prolong the term of any
office beyond that limited by law. § * *
Case of a district attorney, 12 Op., 469, Evarts, (1868.)
Where the office of district attorney became vacant by expiration of
the statutory term during a session of the Senate, and the Sen-
ate adjourned without acting on the nomination made by the
President to the office: Held, that the President had power, after
the adjournment of the Senate, to grant a commission to fill the
vacancy, to expire at the end of the next session of the Senate.
* Ib.
. Consistently with the spirit and purpose of the tenure-of-office acts
of 1867 (14 Stat., 430; R. S., § 1767, et seq.) and 1869 (16 Stat.,
6; R. S., § 1767, et seq.,) the President may revoke the suspension
of an officer and re-instate him in the functions of his office, after
the rejection by the Senate of a nomination to fill his place.
- Re-instating suspended officer, 13 Op.,221, Hoar, (1870.)
The word “suspended,” as used in those acts, imports that the person
suspended is still the incumbent of the office, and that the inter-
ruption of his performance of its duties is temporary and provis-
ional. -
Ib. .
The effect of revoking the suspension is only to restore to his former
condition the actual possessor of the office, to whose removal the
Senate has given no advice or consent.
* e Ib. .
Semble, that in the case of a foreign mission, the holder of the office
is not displaced by the appointment of a successor until the latter
enters upon his duties. -
George H. Yeaman's case, 13 Op., 300, Akerman, (1870.)
Under the tenure-of-office acts (which, in this opinion, are assumed
to be applicable to foreign ministers and consuls, though this is
regarded as doubtful upon authority, and perhaps on principle
also) the President may suspend the incumbent of such mission
until the end of the next session of the Senate, and designate
some suitable person to perform the duties of the suspended
officer in the mean time. •
- - Ib.
Where an officer, during the recess of the Senate, was suspended,
and another person was designated to fill the office till the end
of the next session of the Senate, who was afterward nominated
OFFICE. 181
18.
19
21.
2
3
for the office during such session, but the Senate adjourned with-
out acting upon the nomination : Held, that the failure of the
Senate to confirm the nomination operated to restore the sus-
pended officer; yet held, also, that the latter may again be sus-
pended by the President for any causes which, in his judgment,
are sufficient, without regard to the time when such causes began
to exist.
Iö.
An officer who has been suspended and is afterward re-instated, may
be again suspended by the President during the recess of the
Senate. - -
Postmaster at Nashville, 13 Op., 308, Akerman, (1870.)
A resignation of a public office may be effected by the concurrence
of the officer and the appointing power; its essential elements
being an intent to resign, on one part, and an acceptance on the
other. The principle on which it rests is agreement.
A. B. Cornell's case, 14 Op., 259, Williams, (1873.)
When a resignation once takes effect, the official relations of the
incumbent are dissolved, and he no longer has any right to or
hold upon the office. - & - -
Ib.
The right of an incumbent of a Government office to continue there-
in, after the expiration of his term, until the appointment of his
successor, depends upon whether Congress has thus provided.
Opinion of Attorney-General Butler, (2 Op., 713,) disapproved.
- Ib.
An order of the President, under section 1768 of the Revised Stat.
utes, suspending an officer, takes effect upon due notice to the
officer of such suspension, and receipt of such order by the officer
is due notice. . If the order does not in terms limit the time at
which it is to take effect, it operates from the date of its service.
Suspension of officer, — Op., Williams, November 20, (1875.)
If an officer thus suspended continues to perform the duties and
functions of his office, there being no one else authorized at the
time to perform them, his acts are the acts of an officer de facto,
which, on grounds of public policy and necessity, are deemed to
be valid so far as they involve the just interests of third persons
and the public; and such acts of a de facto officer, acting within
the scope of his office, are valid and binding in the absence of
fraud or notice of irregularity.
- d Ib,
182 OFFICE.
24. On the 17th February, 1876, General, Schenck tendered his resigna-
tion as minister to London, to take effect on the arrival of his
successor. Before his letter of resignation arrived, and on the
21st February, 1876, he sent a telegram asking leave of absence
to repair to Washington, which leave was given on 23d February.
On March 6 the Secretary of State wrote that General Schenck's
resignation was accepted. Before this letter reached London
General Schenck was on his way to Washington. On 17th Feb-
ruary the name of Mr. Dana was sent to the Senate as successor
to General Schenck, the message stating that the nomination
was in place of General Schenck, “resigned.”
Held, that when the resignation of such an officer of the Govern-
ment is tendered, and the time at which it is to take effect is spe-
cifically named in the resignation, the acceptance of the resignation
without qualification is an acceptance with the condition attached.
- Schenck's case, – Op., Pierrepont, April 12, (1876.)
25. If General Schenck had remained in England he would have con-
tinued to be minister until the arrival of his successor; but his
having subsequently obtained leave of absence, and having re-
turned in pursuance of that leave, changed the conditions. He
would cease to be minister on the nomination and confirmation
of his successor.
Ib.
26. The nomination to an office by the President, confirmation by the
Senate, signature of the commission, and affixing to it the Seal of
the United States are all the acts necessary to render the appoint-
ment complete. Hence, the appointment is not rendered invalid
by the subsequent death of the President before the transmission
of the commission to the appointee, even where it is necessary
that the person appointed should perform certain acts before he
can legally enter upon the duties of the office. -
. United States vs. Le Baron, 19 Howard, 74.
27. An officer commissioned to hold office during the term of four years
from the 2d March, 1845, is in office on 2d March, 1849. The word
“from * excludes the day of date. •
Best vs. Polk, 18 Wallace, 112, [119.]
28. A civil officer has a right to resign his office at pleasure, and to take
effect it is only necessary that the resignation should be received
by the Executive. Its acceptance or rejection by him is unim-
portant.
- United States vs. Wright, 1 McLean, 509.
OFFICIAL ACTS-PARD ONS. 183
of FHCHAL ACTFs.
1. The acts of an officer de facto are always held to be good where the
public or third parties are concerned, and the legality of his ap-
pointment can never be inquired into except upon quo warranto,
or Some other proceeding to oust him, or else in a suit brought
or defended by himself which brings the very question whether
he was an officer de jui e directly in issue. - -
- Mr. Hooper’s case, 9 Op, 432, Black, (1860.)
of FRCERs of GoverenMENT.
See Contracts.
1. Where a statute declares that an officer shall be removed in certain
contingencies, the happening of the contingency does not effect
the removal, and, until actual removal, the liability of the sure-
ties on the Official bond is not determined.
United States vs. Van Zandt, 11 Wheaton, 184,
United States vs. Nicholl, 12 Wheaton, 505.
2. Every public officer is required to perform all duties which are
strictly official, although they may be required by laws passed
after he comes into office, and may be cumulative upon his orig-
inal duties, and although his compensation therefor be wholly
inadequate.
Andrews vs. United States, 2 Story, 202.
3. Where a particular authority is confided in a public officer, to be
exercised, in his discretion, upon an examination of facts of which
he is the appropriate judge, his decision upon those facts is, in the
absence of any controlling provision, absolutely conclusive,
Allen v8. Blunt, 3 Story, 742.
PANAMA PAssBNGER, TAX.
..See Treaties.
. Claims.
#PARHP602N3.
*
1. The President may so far mitigate a sentence of death as to substi-
tute a milder punishment in its stead.
- Bansman's case, 1 Op., 327, Wirt, (1820.)
2. The power of absolute pardon given to the President by the Consti-
tution includes the power of granting a conditional pardon;
.**
184 PARD ONS.
there is danger, however, that conditional pardons may result in
absolute ones, from the difficulty of enforcing the condition after
an offender shall have been released. Pardons may issue before
conviction. - -
Power of pardon, 1 Op., 342, Wirt, (1820.)
3. The power of pardon neither requires nor authorizes the President
to enter into an investigation of facts not set up or proven at the
trial, which, if true, should have been interposed during the pro-
ceedings against the accused. -
Cage of certain pirates, 1 Op., 359, Wirt, (1820.)
4. The President has power to grant a conditional pardon to a convict,
provided the condition be compatible with the genius of our
Constitution and laws. + -
-- - - Pryant's case, 1 Op., 482, Wirt, (1821.)
5. The pardoning power includes the power of remission of fines, pen-
alties, and forfeitures under the revenue laws, but does not ex-
tend to the length of making restitution of fines, penalties, and
forfeitures after they have been paid into the Treasury.
Case of Adams and others, 2 Op.; 329, Berrien, (1830.)
6. The power of the President to grant reprieves and pardons extends
to the remission of fines, penalties, forfeitures, and costs in crim-
inal cases, and may be exercised in degrees, at different times, in
the discretion of the President. -
º Martin's case, 3 Op., 418, Grundy, (1839.)
7. A portion of a sentence may be remitted at one time, and another
portion at another time and by another President. Ib
8. An appointment of an officer under a sentence of suspension to a
higher office is an implied pardon. -
* - - Blooe's case, 4 Op., 8, Legaré, (1842.)
9. The President has ample power to mitigate the sentence of a court-
martial by commuting a sentence of dismissal from the service
to suspension without pay or emolument for a limited time.
Guillon's case, 5 Op., 43, Toucey, (1848.)
10. The opinions of former Attorneys-General are not at variance with
this view. - s -
Ib.
11. Where several midshipmen had been dismissed by the sentence of a
* naval court-martial, which was approved by President Taylor,
who afterward reconsidered his approval, and announced his de-
termination to restore them, but died without doing so, held, it
WaS Competent for the President to reconsider the case and re-
store them, provided it could be done without increasing that
class of officers beyond the number limited by law. -
Case of dismissed midshipmen, 5 Op. , 259, Crittenden, (1850.)
PARDONS. 185
12.
13.
14,
18.
26.
22.
The general power to pardon conferred upon the President includes
the power to pardon conditionally, or to commute to a milder
punishment. Where, however, the condition is such that the Gov-
ernment has no power to carry it into effect, the pardon will be,
in effect, unconditional.
Case of an Indian, 5 Op., 368, Crittendén, (1851.)
It is not competent for the President, in the exercise of the pardon-
ing power, to remit pecuniary penalties attached to the offense,
unless those penalties accrue to the United States.
Drayton and Sears's case, 5 Op., 532, Crittenden, (1852.)
The President, in the exercise of the pardoning power vested in him,
may remit penalties and fines, or he may discharge the parties
from imprisonment without remitting the fines. -
t Drayton and Sears's case, 5 Op., 579, Crittenden, (1852.)
. The President has power to order a molle prosegui in any stage of a
criminal proceeding in the name of the Government.
Power of the President, 5 Op., 729, Appendia, Wirt, (1821.)
. The President has the constitutional power to pardon as well before
trial and conviction as afterward, but it is a power to be exercised
with reserve, and for exceptional considerations.
John Sandford's case, 6 Op., 20, Cushing, (1853.)
. The pardoning power of the President extends to all cases of penal-
ties and forfeitures, as well as other punishments provided by law.
- - Raymond's case, 6 Op., 393, Cushing, (1854.)
The power of the President and of the Secretary of the Treasury to
pardon and remit forfeitures or penalties under the acts of Con-
gress relative to the transportation of passengers considered.
The Bellona, 6 Op., 488, Cushing, (1854.)
. An order to an officer, while under sentence of suspension, to attend
a Court-martial as a witness, does not operate as a constructive
pardon. º - . .
Lieutenant Stanley's case, 6 Op., 714, Cushing, (1854.)
The President alone has power to pardon offenses committed in a
Territory in violation of acts of Congress. .
Pardoning power, 7 Op., 561, Cushing, (1855.)
. The President has no power by a supplemental or special pardon to
relieve a Federal convict of legal or political disabilities imposed
upon him by the laws of one of the States.
Robbins'8 case, 7 Op., 760, Cushing, (1856.)
Where a person had been convicted of an offense created by act of
Congress and imprisoned therefor in the penitentiary, and after-
186 PARDONs.
23.
24.
2
5.
2
6.
30.
31.
ward received a general pardon, held, that if any other act or
thing was necessary under the laws of the State of New York to
restore him to citizenship, it was not within the province of the
President to perform it. Ib
The constitutional power of the President to pardon extends to all
the elements of the subject-matter, including as well pecuniary
penalties as other méthods of punishment for any Federal offense,
except in a case of impeachment, and it cannot be controlled or
curtailed by act of Congress. -
Gourd's case, 8 Op., 281, Cushing, (1857.)
But where a pecuniary penalty has been paid into the Treasury, the
amount cannot be drawn without an appropriation by Congress.
Ib.
A person disfranchised as a citizen by conviction of crime under the
laws of the United States can be restored to his rights by a par-
don issued before or after he has suffered the other penalties inci-
dent to his conviction. -
• Effect of pardon, 9 Op., 478, Black, (1860.)
The remission of a fine by the President after it has been paid is of
no effect.
Smith's case, 10 Op., 1, Stanton, (1861.)
. The power of the President to pardon offenses against the Govern-
ment does not embrace any case of forfeiture, loss, or condemna-
tion not imposed by law as a punishment for the offense. He
cannot, by virtue of the grant of power to pardon, surrender or
give away the pecuniary or proprietary rights and interests of
the Government.
- - Case of blockade-runners, 10 Op., 452, Bates, (1863.)
. After condemnation of a vessel and cargo in a prize court, the Pres-
ident cannot remit the forfeiture and restore the property.
g Ib.
. Where a fine was imposed upon a person on conviction for crime
against the Government, but the sentence was not enforced dur-
ing the life-time of the party, held, the President had power to
remit the fine after death. . . - -
- Caldwell's case, 11 Op., 35, Bates, (1864.)
The pardoning power of the President considered.
Pardoning power, 11 Op., 227, Speed, (1865.)
The President cannot, by any exercise of his pardoning power, re-
mit or mitigate the forfeiture of property liable to confiscation as
prize of war.
- The Adelso, 11 Op., 445, Speed, (1866.)
PARDONS. 187
32.
33
34
36.
37.
38.
39.
40.
The effect and operation of pardons considered. -
President's power, 12 Op., 81, Stambery, (1866.)
A pardon by the President will restore an officer whose rank has
been reduced by sentence of court-martial to his former rank, ac-
cording to the date of his commission. -
Effect of pardon, 12 Op., 547, Evarts, (1869.)
The President may act on applications for pardon individually, or
may refer them to any of the Executive Departments for advice.
- Reynolds's case, 14 Op., 20, Williams, (1872.)
Where a person convicted of crime against the Government was
sentenced to fine and imprisonment, and subsequently received
an unconditional pardon from the President, and previons thereto
had paid the amount of the fine to the marshal, by whom it was
deposited in court, where it still remained, held, that the fine was
remitted by the pardon, and that the money should be restored
to the person pardoned.
Charles Leoni's case, 14 Op., 599, Williams, (1872.)
It seems that a pardon by the President restores pecuniary penalties
paid to an officer of the Government, unless the money has actu-
ally passed into the Treasury.
Ib.
The President may grant a conditional pardon, or commutation of
Sentence. * - -
Ex parte Wells, 18 Howard, 307.
United States vs. Wilson, 7 Peters, 150.
The power which the Constitution confers upon the President to
grant pardons cannot be controlled or limited in any manner by
Congress. - -
Ex parte Garland, 4 Wallace, 333.
A pardon reaches the punishment prescribed for an offense and the
guilt of the offender, and, when full, releases the punishment and
blots out of existence the guilt. If granted before conviction,
it prevents any of the penalties and disabilities consequent upon
conviction from attaching; when granted after conviction, it re-
moves the penalties and restores the person to all his civil rights;
it makes him, as it were, a new man, and gives him a new credit
and capacity.
- Ib.
There is only a single limitation to the operation of this power: it
does not restore offices forfeited, or property vested in others in
consequence of the conviction and judgment. e
- - - - Ib.
:
.
o*
:
:
&
:
º
:
-
:
:
188
PARD ONS,
41. The pardon of the President, whether granted by general proclama-
43.
44.
46.
tion or by special letters, relieves claimants, under the captured
and abandoned property act, from the consequences of participa-
tion in the rebellion. - - -
- Carlisle vs. United States, 16 Wallace, 147.
. There has been no difference of opinion among the members of the
court as to the effect and operation of a pardon. In cases where
it applies, all have agreed that the pardon not merely releases
the offender from the punishment prescribed for the offense, but
that it obliterates, in legal contemplation, the offense itself.
tº - - Iö.
The constitutional power of the President to pardon offenses carries
with it, as an incident, the power to release penalties and for-
feitures which accrue from the offense, subject to the exceptions
prescribed in the pardon.
- Osborn vs. United States, 91 U. S. R., S. C., 474.
A pardon of the President restores all rights of property lost by
the offense pardoned, unless the property has, by judicial process,
become vested in some other person.
Iö.
. Under the Constitution and laws of the United States, a pardon
must be regarded as a deed, to the validity of which delivery is
essential; and in this respect a pardon differs from a commission.
- In the matter of De Puy, 3 Benedict, 307.
A pardon is not completed in such a sense that it cannot be revoked
by the President, until it has been actually delivered to the pris-
oner, or fully issued and delivered to the keeper of the prison in
which he is confined, with intent that it should become available
to the prisoner. It may be revoked by the President by whom
it was issued, or by his successor, while it yet remains in the mar-
shal's hands. The marshal is in this respect no more than the
messenger of the President. Delivery of the pardon to the pris-
oner, or to the person having him in custody, is essential to render
it operative.
- Iö.
.47. Where a pardon is granted with a condition annexed, the fact that
the person pardoned is imprisoned and must accept the condition
before receiving the benefit of the pardon, does not constitute
such duress as makes the acceptance of the condition of no effect.
Greathouse's case, 2 Abbott, U. S. R., 382.
48. He who claims the benefit of a pardon must strictly comply with its
conditions and make proof of that fact. -
Haym vs. United States, 7 C. Cls., 443.
Waring vs. United States, 7 C. Cls., 501.
Scott vs. United States, 8 C. Cls., 457.
PARIS EXPOSITION.—PASSPORTs. 189
2
3
6
PARHS EXP&PSMTHGN.
. The Secretary of State has authority, under the joint resolution of
5th July, 1866, (14 Stat., 362,) to pay the moneys appropriated
for the Paris Exposition, to be expended in Europe, in coin.
Eependitures for Exposition, 12 Op., 9, Stanbery, (1866.)
PASSIPOKETs.
. A passport issued by an unauthorized person substantially in the
form used by the State Department, is within the letter of section
23 of the act of 1856. (11 Stat., 60; R. S., § 4078.)
Case of a passport issued by mayor of Philadelphia, 9 Qp., 350, Black, (1859.)
e The prohibition contained in that act is not confined to the issuing
and Verifying of Sugh passports or certificates in foreign countries,
but applies equally to State and Federal functionaries residing
here.
Ib.
. A passport cannot be issued to any other than a citizen of the United
States.
Ib.
There is no form of certificate in the nature of a passport which can
be issued lawfully by a State officer.
* , Ib.
. By the act of March 3, 1863, (12 Stat., 754, repealed 14 Stat., 54.) the
Secretary of State had power to issue passports to any class of per-
sons liable to military duty by the laws of the United States.
Passports, 10 Op., 517, Bates, (1863.)
. Where application was made to the Department of State for pass-
ports for five persons residing in the island of Curaçoa, four of
whom were born in that island and one in the island of Saint
Thomas, and all of whom were children of native citizens of the
United States, but it did not appear that any of the applicants had .
ever resided or intended to reside in the United States, advised that
the applicants are not entitled to passports. -
Case of five residents of Curaçoa, 13 Op., 89, Hoar, (1869)
. Sembie, that the granting of passports is not obligatory in any case,
but is only permitted where not prohibited by law. a
- Ib.
. Persons born abroad, who seek passports as citizens of the United
States founded on an alleged Texan citizenship at the time of
annexation, may be deemed citizens of the United States and en-
190. PAYMENT IN COIN–PIRACY.
titled to passports as such, should they be found to belong to any
of the classes of Texas citizens described and classified in the
opinion. -
Citizens of Texas, 13 Op., 397, Akerman, (1871.)
9. In general, a passport granted by the Secretary of State is not evi-
dence in a court of justice that the person to whom it was given
was a citizen of the United States. . . . . . .
Urtetiqui vs. D'Arbel, 9 Peters, 692.
PAYMHENT HN CO'HN.
See Treaties—Peru.
Spain.
1. The Secretary of State has authority, under the joint resolution of
5th July, 1866, (14 Stat., 362,) to pay the moneys appropriated
for the Paris Exposition, to be expended in Europe, in coin.
Paris Ea position, 12 Op., 9, Stanbery, (1866.)
*=====
PENAHLTIES ANHS FOREFERT &JRES.
See Pardoms. -
1. On the requisition of the British minister, a British vessel and cargo
which the master had wantonly and feloniously taken into an
American port in violation of our revenue laws, and which was
there seized by the officers of the port for such violation, should
be-restored to an innocent owner. The forfeitures and penalties
prescribed by our laws have never been inflicted on owners of
vessels which have been brought within our power by crimes
of others. -
Case of the Maria, 1 Op., 509, Wirt, (1821.)
2. The jewels of the Princess of Orange, stolen from her, having been
brought into this country in violation of our revenue laws, but
without the consent of the owner, are not liable to forfeiture, and
may be restored to the minister of the King of the Netherlands
by order of the President. -
- Jewels of the Princess of Orange, 2 Op., 482, Tanegſ, (1831.)
PERRIANENT APPROPRIATroNs.
See Appropriations.
PHBACY.
See Crimes.
POWERS OF ATTORNEY-PRIZE. 191
Powers of ATTorºney.
1. A power of attorney, not given on account of any valuable consider-
ation paid to the principal, may be revoked before the exercise of
authority under it. -
- Sombrero Island, 9 Op., 128, Black, (1857.)
}*śSRENT$.
See Contingent Expenses of Foreign Intercourse.
KP###|N CHESS 4}}" ºffº AN GRE.
See Jewels of the Princess of Orange.
PRHSoNERs.
See Consular Courts.
Crimes.
PRHWHELEGE FRoRI AREEEsº".
See Foreign Consuls.
Public Ministers.
Servants. -
1. The late governor of Guadaloupe, while here as a prisoner of war on
parole, is not more exempt than any other foreigner (not a public
minister) from suit and arrest. - -
Case of the governor of Guadaloupe, 1 Op., 45, Bradford, (1794.)
2. A British naval officer proceeded against in a civil action by a citizen
of Charleston for having received a negro on board his vessel
during the war, the property of the plaintiff, is on the same foot-
ing with every other foreigner who is not a public minister, as to
privilege from arrest and suit. The suit cannot be stopped on
the application of the minister of Great Britain.
- - Captain Cochran's case, 1 Op., 49, Bradford, (1794.)
3. If the commandant of the island of Amelia were arrested in Georgia
at the suit of an individual, the United States have no power to
interfere; if, however, the suit be a public prosecution in the
name of the State of Georgia, or of the United States, it would
be proper for the Executive to interfere. & -
Rosa's case, 1 Op., 68, Lee, (1797.)
PRIZE.
See Capture and Prize.
Newtrality.
192
PRIVATEERs—PROPERTY OF THE UNITED STATES.
PFREEWATFEERS.
1. A privateer's commission may be forfeited by grossly illegal con-
duct; and a commission fraudulently obtained is, as to vesting
the interests of prize, utterly void. But a commission may be
lawfully obtained, although the parties intended to use it as a
cover for illegal purposes. If a commission is fairly obtained,
without imposition or fraud upon the officers of Government, it is
not void merely because the parties privately intend to violate,
under its protection, the laws of their country. A collusive cap-
ture conveys no title to the captors, not because the commission
is thereby made void, but because the captors thereby forfeit all
title to the prize-property.
The Eaſperiment, 8 Wheaton, 261, [265.)
2. A nation at war may commission private armed vessels to carry on
war against its enemy on the high seas, and the commission will
afford protection, even in the judicial tribunals of the enemy,
against a charge of the crime of robbery or piracy.
Inited States vs. Baker, 5 Blatchford, 6.
ProclamATION.
1. Where a proclamation by the President, removing certain restric-
tions upon trade and intercourse growing out of the rebellion, bore
date upon the 24th day of June, 1865, (13 Stat., 769,) and was
sealed with the great seal, and duly attested, but was not pub-
lished in the newspapers or otherwise made public until the
morning of the 27th, and the decision of the case turned upon
the date at which the proclamation became effective: Held,
by the Chief-Justice and four associate justices, that the same
rule of presumption should be applied to proclamations as
was applied to statutes, and that the proclamation should be
deemed to have a valid existence and to be effective on the day
of its date. -
- . - Lapeyre w8. United States, 17 Wallace, 191.
[The dissenting justices were of opinion that some acts were
necessary other than signature and deposit in the Department of
State to give to the paper the validity of a proclamation.]
ProPERTY of THE UNITED STATEs.
1. Property of the United States transferred by rebel authorities in the
hands of persons within the jurisdiction of a friendly foreign
state may be recovered by appropriate judicial proceedings in-
stituted by the United States in the courts of the foreign govern-
ment. . -
Recovery of United States property, 11 Op., 292, Speed, (1865.)
PROSECUTIONS-PUBLIC MINISTER. 193
|PROSEGUT NEONS.
See Tréaties.
1. The term “prosecutions,” as used in treaty of 1782 with Great Britain,
article 6, (Pub. Trs., 263,) defined.
Captain Cochran's case, 1 Op., 50, Bradford, (1794.)
IPUIBILIC AIRWIRED WIESSELS.
See Easterritoriality.
Illicit Intercourse.
Seizure and Detention.
1. Public armed vessels may seize and detain merchant-vessels suspected
of being engaged in illicit trade forbidden by the laws of Con-
gress.
The Ontario and the Thomas, 3 Op., 405, Grundy, (1839.)
PUBLIC (CONTRACTS,
See Contracts.
PUBLIC ENEMIY.
See Illicit Intercourse.
|PUBLIC MINISTER.
See Resignation of office.
1. The arrest (of servants of public ministers) is regulated by act of
f Congress; entering a public minister's house to serve an execu-
tion will either be absorbed in the arrest, as being necessarily
associated with it, if that be found criminal, or, if an arrest be
admissible, must be punished; if at all, under the law of nations.
Case of Van Berckel's servant, 1 Op., 26, Randolph, (1792.)
2. A consul is not a public minister.
Case of British consul at Norfolk, 1 Op., 41, Bradford, (1794.)
3. Even the house of a foreign minister cannot be made an asylum for
a guilty citizen, nor it is apprehended a prison for an innocent
one. And, though it be exempt from the ordinary jurisdiction of
the country, yet, in such cases, recourse would be had to the
interposition of the extraordinary power of the state.
13 Case of American citizen on British ship, 1 Op., 47 Bradford, (1794.)
194 - PUBLIC MINISTER.
4. Any malicious publication tending to render another ridiculous, or to
expose him to public contempt and hatred, is a libel; and in the
case of a foreign public minister the municipal law is strength-
ened by the law of nations, which secures the minister a peculiar
protection, not only from violence but also from insult.
Case of British minister, 1 Op., 52, Bradford, (1794.)
5. An affront to an ambassador is just cause for national displeasure,
and, if offered by an individual citizen, satisfaction is demanda-
ble of his nation. It is usual for nations to complain of insults
to their ambassadors, and to require the parties to be brought to
punishment.
Spanish minister's case, 1 Op., 71, Lee, (1797.)
6. An ambassador or other representative of one nation residing in
another is entitled to be treated with respect, and especially
ought not to be libeled by any of the citizens. If he commits
any offense, it belongs, in our country, to the President to take
notice of it, and not to any individual citizen.
Ib.
7. A foreign minister should correspond with the Secretary of State on
matters which interest his nation, and not through the press of
our country. He has no authority to communicate his sentiments
to the people of the United States by publication in manuscript
or print.
Spanish ministers’ publication, 1 Op., 74, Lee, (1797.)
8. The entry into a minister's garden by the agent of the owner of a
slave, and there seizing and carrying away to the owner such
slave, is not such a violation of the domicile of the minister as
constitutes a punishable offense under the Crimes Act of 1790.
(1 Stat., 118; R. S., § 4064.) #
Mr. Merry's case, 1 Op., 141, Lincoln, (1804.)
9. Mr. Barozzo Pereira, the Portuguese chargé d'affaires, was, on the
30th October, 1829, entitled to the respect and immunities of a
public minister, notwithstanding the assumption of regal power
in Portugal by Don Miguel, in exclusion of Don Pedro IV.
Case of Portuguese minister, 2 Op., 290, Berrien, (1829.)
[NOTE.-The chargé d'affaires appointed by Don Miguel com-
menced an action in trover in the State court against the late
chargé to recover the archives and property of the legation, and
the late chargé was arrested and imprisoned in default of bail.
On a motion to quash the process it was held :
1. That the recognition of a foreign minister is conclusive evi-
dence of the authenticity and validity of his credentials.
2. Where a diplomatic representative announces the cessation
of his functions by reason of a change of authority in his country,
PUBLIC MINISTER. 195
and obtains his passports, he has not waived his privilege as a
returning minister, and the process should be quashed.
3. Such a suit, as in this case, is no evidence that the sovereign
has deprived the chargé of his privilege, even if it were competent
so to do. Torlade vs. Barrozo, 1 Miles, (Pa.,) 366.
[The attorney who issued the capias was thereupon indicted
under the act of Congress and tried in the Federal court. The
case went to the Supreme Court of the United States on a differ-
ence of opinion, and a molle prosequi was entered by direction of
the President. United States vs. Phillips, 6 Peters, 776.]
10. The persons and household goods of foreign ambassadors, and of
those who are attached to their respective legations, are exempt
from lawful arrest, seizure, or molestation, as well by the law of
nations as by the act of 1790, section 28, (1 Stat., 118; R. S.,
§ 4062.) * *
It is, therefore, unlawful for the keeper of a hotel in Washing-
ton, with whom an attaché of the legation of France is a boarder,
to oppose by force, in any manner, the removal therefrom of any
of his personal effects. a
Case of Jules Marie, 5 Op., 69, Toucey, (1849.)
11. Yet it is not incumbent on the Secretary of State to interfere in
such cases. The act of Congress, which denounces the act and
prescribes the penalty, refers them to the judiciary. Ib
12. The question of what redress could be afforded for an insult to a
foreign government, offered to its minister considered.
Spanish minister's case, 5 Op., 691, Appendia, Lincoln, (1802.)
13. A foreign minister who engages in the enlistment of troops here for
his government is subject to be summarily expelled from the
country, or, after demand of recall, dismissed by the President.
Mr. Crampton's case, 7 Op., 367, Cushing, (1855.)
14. According to the public law of the monarchies of Europe, the au- #
thority of ministers, and perhaps of international commission-
ers, expires on the death, deposition, or abdication of the prince;
but not so as between the American republics, in which the execu-
tive power is permanent and continuous, without regard to the
governing person, and there is no interruption of the authority or
renewal of the credentials of their public ministers on a change
of President for whatever cause, provided such President con-
tinues to represent and exercise the appointing power of the
government. . & -
Case of ministers, &c., of American Republics, 7 Op., 582, Cushing, (1855.)
15. The United States observe, as their rule of public law, to recognize
governments de facto, and also governing persons de facto, without
Scrutiny of the question of the legitimacy of origin or succession.
Ibs
196 PUBLIC MINISTER.
16. Where a person was accredited as a foreign minister to the United
States, and not received as representing no recognized govern-
ment, and against whom a warrant was issued for unlawful
recruiting : held, that he had no diplomatic privilege of right, and
that whatever privilege was accorded to him by courtesy would
be withdrawn as soon as there shall be cause to believe that he
is engaged in or contemplates any act inconsistent with the laws,
the peace, or the public honor of the United States. -
- French's case, 8 Op., 473, Cushing, (1855.)
17. If a slave employed by the representative of a foreign government,
without the owner's authority, be reclaimed by the owner with
or without legal process, such reclamation is not a breach of
diplomatic privilege. -
Chevalier Hulseman's servant, 9 Op.,7,18lack, (1857.)
18. For injuries done by private persons to the representatives of for-
eign governments, the Government of the United States affords
redress through its judical tribunals. The Executive Depart-
ment has no power to redress such injuries.
Ib.
19. In what cases a minister, by infracting the laws of the country in
Which he resides, may subject himself to other punishments than
those inflicted by his own sovereign, is an inquiry foreign to the
present purpose. If his crimes be such as to render him amenable
to local jurisdiction, it must be because they forfeit the privileges
annexed to his character; and the minister, by violating the con-
ditions under which he was received as the representative of a
foreign sovereign, has surrendered the immunities granted on
those conditions; or, according to the true meaning of the origi-
mal assent, has ceased to be entitled to them.
Schooner Eachange vs. McFaddon, 7 Cranch, 116, [139.]
20. It is admitted that a claim by a public minister in behalf of his
sovereign would be good; but in making this admission it is not
to be understood that it can be made in a court of justice without
the assent or sanction of the government in whose courts the
cause is pending. That is a question of great importance, upon
which this court expressly reserve their opinion.
e The Anne, 3 Wheaton, 435, [446.]
21. An indictment under the act of 1790, (1 Stat., 118, R. S. § 4062,) for
offering violence to the person of a public minister is not a case
“affecting ambassadors or other public ministers and consuls,”
within the second section of the third article of the Constitution.
United States vs. Ortega, 11 Wheaton, 467.
[NOTE.-A valuable note is attached to this case considering
the general question of jurisdiction over foreign ministers.]
PUBLIC MINISTER 197
22. The certificate and seal of the minister resident from Great Britain
in Hanover is not a proper authentication of the proceedings of
a foreign court or of the proceedings of an officer authorized to
take depositions. It is not connected in any way with the func-
tions of the minister. His certificate and seal could only authen-
ticate those acts which are appropriate to his office.
-- Stein v8. Bowman, 13 Peters, 209.
23. The laws of the United States which punish those who violate the
privileges of a foreign minister are equally obligatory on the
State courts as upon those of the United States, and it is
equally the duty of each to quash the proceedings against any
one having such privileges.
Ex parte Cabrera, 1 Washington, 232.
24. The injured party may seek his redress in either court against the
aggressor, or he may prosecute under the twenty-sixth section of
the law. (1 Stat. 117; R. S., § 4064.)
Ib.
25. The circuit court cannot quash proceedings against a public minis.
ter pending in a State court; nor can the court in any way
interfere with the jurisdiction of the courts of a State.
Ib.
26. A secretary attached to the Spanish legation is entitled to the pro-
tection of the law of nations against any civil or criminal prose-
cution; but the circuit court cannot discharge him from criminal
process, issued under the authority of the State of Pennsylvania.
Ib.
27. The certificate of the Secretary of State, dated subsequently to the
assault and battery, is the best evidence to prove the diplomatic
character of a person accredited as a minister by the Government
of the United States.
The United States vs. William Liddle, 2 Washington, 205,
28. Parol evidence was admitted to prove the period when a person
was considered by the Government of the United States as a min-
ister.
Ib.
29. The law is the same in the case of a defendant charged with an
assault of a minister as when charged with the same offense
against a citizen; and if the minister gave the first assault the
defendant will be excused for the subsequent battery though he
Was a minister.
- Iö.
198 PUBLIC MINISTER.
30. Where the chargé d'affaires had a large party at his house, and a trans-
parent painting at his window at which a mob which had collected
took offense, the defendant fired two pistols at the window, his
intention being to destroy the painting without doing injury to
the person of the minister or of any one.
The prisoner was indicted for an assault upon the chargé d'af.
faires of Russia, and for infracting the laws of nations, by offering
Violence to the person of the said minister. *
United States vs. Hand, 2 Washington, 435.
31. Held, the law of nations identifies the property of a foreign minister,
attached to his person or in his use, with his person. To insult
them is an attack on the minister and his sovereign, and it appears
to have been the intention of the act of Congress to punish
offenses of this kind.
Ib.
32. To constitute an offense against a foreign minister, the defendant
must have known that the house on which the attack was made
was the domicile of a minister, otherwise it is only an offense
against the municipal laws of the State.
Iö.
33. Upon an indictment for an assault committed on the chargé d'affaires
of a foreign government, proof that the person assaulted is received
and recognized by the Executive of the United States is conclu-
sive as to his public character, and that he is entitled to all th
immunities of a foreign minister. -
United States vs. Ortega, 4 Washington, 531.
34. If a foreign minister commits the first assault, he forfeits his immu-
nity so far as to excuse the defendant for returning it.
h Ib.
35. It is no defense upon such indictment that defendant was ignorant
of the public character of the minister.
Ib.
36. Domestic servants of a foreign minister are not liable to the ordinary
tribunals of the country for misdemeanors.
United States vs. Lafontaine, 4 Cranch C. Ct., 173.
37. It is a breach of diplomatic privilege for an officer of justice to enter
the dwelling-house of a Secretary of legation, and there to seize a
runaway slave; and for so doing the officer will be removed.
. United States vs. Jeffers, 4 Cranch C. Ct., 704.
38. The mode of redress for a person privileged from arrest when
arrested is by motion to the court from which the process issued.
Lyell vs. Goodwin, 4 McLean, 29.
PUBLIC PROPERTY-RECLAMATION. 199
39. Any person who executes process on a foreign minister is to be
deemed an officer under section 26 of the act of 1790. (1 Stat.,
117; R. S., § 4064.) *
United States vs. Benner, Baldwin, 234.
40. To support an indictment under this law it is not necessary that the
defendant should know the person arrested to be a foreign min-
ister.
Ib.
41. A foreign minister cannot waive his privileges or immunities; his
Submission or consent to an arrest is no justification.
- - Ib.
42. An assault committed by him may be repelled in self-defense, but
does not justify an arrest on process.
Jö.
43. An attaché to a foreign legation is a public minister within the act
of Congress.
Ib.
44. A certificate by the Secretary of State, under seal of office, that a
person has been recognized by the Department of State as a
foreign minister, is full evidence that he has been authorized and
received as such by the President of the United States. Iſº
IPUBLIC I PROPERTYe
See Property of the United States.
I REIBLE LILLION,
See Civil War.
Sovereignty.
RECAPTURED PROPERTY.
See Capture and Prize.
IRECIPROCITY,
See Treaties.
IRECILANTIATION,
See Diplomatic Interference,
200 REGISTER—ROBBERY.
REGISTER.
See Ship's Papers.
REMOVAL FROM of FICE.
See Office.
REPEALs.
See Statutes.
REPRISALs.
1. The law of nations does not allow reprisals, except in case of violent
injuries directed and supported by the state, and the denial of
justice by all the tribunals, and afterward by the prince. -
Pagan's Cage, 1 Op., 30, Randolph, (1793.)
* RESIGNATION OF OFFICE.
See Office,
RESOLUTIONS OF CONGRESS.
1. Joint resolutions of Congress are not distinguishable from bills, and,
if approved by the President, or if duly passed without the ap-
proval of the President, they have all the effect of law.
- Effect of Resolutions of one House, 6 Op. 680, Cushing, (1854.)
2. But separate resolutions of either house of Congress, except in mat-
ters appertaining to their own parliamentary rights, have no
legal effect to constrain the action of the President or of the heads
of Departments.
Ib.
REVOLUTION.
See Sovereignty.
Civil War.
TROTHEBIETRY.
See Crimes.
SAFE-CONDUCT-SALVAGE. 201
~5-3-º-º-º:* *
SAFE-CONDUCT.
1. There is no law authorizing the Secretary of State to furnish the own-
ers of an American merchant-vessel with a letter of safe-conduct
to the American ministers and naval officers in the East.
ºr The Meteor, 12 Op., 65, Stanbery, (1866.)
SALARMES.
See Compensation.
1, Money due to an employé of the Government cannot be attached by
the process of a State court in the hands of a disbursing officer.
- Clinton's case, 10 Op., 120, Bates, (1861.)
SALWAGE.
1. A recapture from pirates gives a fair claim for Salvage by the gen-
eral maritime law; and by the act of March 3, 1800, (2 Stat., 16;
repealed by act of 1864, ch, 174, § 35, 13 Stat., 315, R. S., 4652,)
national ships are entitled to salvage from the ships of friendly
powers rescued from their enemies; which act, in spirit, applies
to rescues from pirates.
- The Theodore, 1 Op., 577, Wirt, (1822.)
2. The officers and crew of a Government vessel are not entitled to
salvage as against the Government for saving Government prop-
erty.
Case of the Terrier, 1 Op., 675, Wirt, (1824.)
3. The officers and crew of a vessel in the marine service of the
United States, are entitled to salvage for saving a French ship
whilst on the rock of El Riso, near the anchorage of Anton Li-
zardo; the objection that government vessels are not thus entitled
being invalid. -
- Claim of captain of the Iris, 5 Op., 116 Johnson, (1849.)
4. The rule is universal in the United States, that salvage rendered by
the naval marine is to be compensated in like manner as that ren-
dered by the private marine.
Ib.
5. Officers and crews of the public ships of the United States are not
entitled to salvage, civil or military, as of complete legal right.
The Thomas Corwin, 7 Op., 756, Cushing, (1856.)
6. In the case of derelict property, saved under no unusual circum-
stances, a moiety is the maximum allowance made to the sailors.
The bark J. J. Cobb, 9 Op., 374, Black, (1859.)
202 * SCHELDT DUES—SEAMEN,
7. The general English doctrine is that salvage is not due to a national
vessel for services performed in recapturing from the enemy
another vessel employed in the public service.
- The Leviathan, 12 Op., 289, Stanbery, (1867.)
8. The statutes of the United States make no distinction between re-
capture by a public armed vessel of the United States and recap-
ture by a private vessel. In case of the recapture of a public
vessel by another public vessel, the salvage costs and expenses
are payable from the Treasury.
- Ib,
9. The officers and crew of a national vessel of the United States are en-
titled to salvage for salvage service.
United States vs. the Amistad, 15 Peters, 518.
10. The Officers and crew of a foreign vessel of war are entitled to sal-
vage on the same principles as it is allowed to other vessels.
Robson vs. the Huntress, 2 Wallace, jr., 59.
SCHELDT DUEs.
See Treaties.
SEA- LETTERS,
See Ship's Papers.
SEAMEN.
See Consular Officers.
1. The issue of a warrant under the ninth article of the consular conven-
tion with France, of 1788, (Pub. Trs., 222, annulled by act of 1798,
1 Stat., 578,) is within the discretion of the district judge, and
such discretion cannot be interfered with by the Supreme Court.
Case of Henry Barré, 1 Op., 55, Bradford, (1795.)
2. The master of a vessel belonging to the United States, sold in a for-
eign country in consequence of her being stranded, is not liable
for three months' unearned pay to the seamen under the act of
1803, (2 Stat., 203; R. S., § 4580,) for neither justice, policy, no
equity requires an appropriation of the proceeds of a sale for the
return of a crew, when the sale was the result of a disastrous
providence.
Case of discharged 8eamen, 1 Op., 148, Lincoln, (1804.)
SEAMEN. 203
3. Seamen left behind in a foreign country on account of inability, from
sickness, to return in the vessel in which they went out, are with-
in the provisions of the act of 1803, (2 Stat., 203; R. S., § 4580,)
and for them the master should deposit with the consul three
months' extra pay, as in other cases of voluntary discharge.
Rights of seamen, 1 Op., 593, Wirt, (1823.)
4. The three months' pay, over and above the wages due mariners,
establishes a necessary connection between the pay so to be
advanced to the consul by the ship-master, and the rate of wages
then accruing to the seaman. See act 1803, (2 Stat., 203; R. S.,
§§ 4580, 4582.)
Obligations of ship-masters, 2 Op., 256, Berrien, (1829.).
5. The policy of the law and the plain intention of Congress were to dis-
courage, as far as it was practicable, the discharge of American
Seamen in foreign countries. -
Ib.
6. Where a vessel had been wrecked on the coast of Spain, and the
captain, exercising the authority which was vested in him under
the circumstances, sold her on account of the underwriters, and
discharged the ship's company, Held, that the case is not within
the act of 1803, (2 Stat., 203; R. S., § 4582,) and that, therefore,
the consul of the district of Alicante and Carthagena cannot
retain three months' extra wages for the seamen.
The brig Pamela, 2 Op., 418, Berrien, (1831.)
7. The provisions of the act 1803, (2 Stat., 203; R. S., § 4582,) in
relation to the extra wages of American seamen, to be paid to
the consul where the ship is sold and her crew discharged in a
foreign country, are confined to vessels owned by citizens of the
United States and constituting a part of our mercantile marine
by sailing under our flag.
Shipmasters and 8eamen, 2 Op., 448, Berrien, (1831.)
8. American seamen on foreign vessels must look to the laws of the
country under whose flag they sail for remuneration and protec-
tion in Such emergencies.
Ib.
9. Seamen on board vessels of war are not entitled to pecuniary as-
sistance from consuls abroad, under the act of 1803, (2 Stat., 203;
R. S., § 4577.) -
Aid to distressed seamen, 3 Op., 683, Legaré, (1841.)
10. The moneys in the hands of the Secretary of State were raised from
the Wages of merchant seamen only, and should be applied only
for the relief of that class of seamen which have contributed to
the fund.
Ib.
204 SEAMEN.
11. Seamen on board of ships of war are not entitled to pecuniary assist-
ance from consuls under the acts of 1792 (1 Stat., 256; repealed)
and 1803, (2 Stat., 203; R. S., § 4577.)
ºft Aid to distressed seamen, 3 Op., 685, Legaré, (1841.)
12. The act of 1803, section 4, (2 Stat., 204; R. S., § 4578,) requiring mas-
ters of vessels belonging to citizens of the United States, and
bound to some port of the same, to take, at the request of the
consul, destitute, seamen on board, and to transport them to the
port of the United States to which such vessels may be bound, is
limited to such vessels as shall be bound from the port where the
request is made direct to some port of the United States.
Case of the Philip Home, 4 Op., 185, Nelson, (1843.)
13. American seamen shipped in a British vessel, and, in consequence of
its being wrecked, left in a foreign port destitute, are entitled to
the relief provided in section 4, act 1803, (2 Stat., 204; R. S.,
§ 4577.)
Case of three 8eamen from the Duke, 5 Op., 547, Crittenden, (1852.)
14. Expenditures for the ransom of the crew and passengers of a wrecked
American vessel, held prisoners by the Indians of Queen Char-
lotte's Island, do not come within the scope of the appropriations
for the relief of American seamen, administered by the Secretary
Of State.
Question of ransom of American Seamen, 6 Op., 126, Cashing, (1853.)
15. The statute provision for the surrender of deserting seamen applies
only to seamen of those governments with which a treaty exists
to that effect.
Case of deserter from Danish ship Saga, 6 Op., 148, Cushing, (1853.)
16. In the construction of treaties, the general doctrine is that any
special advantage conceded by a party under one article of the
compact is in consideration of all the advantages enjoyed by the
same party under that and all the other articles.
* Ib.
17. Engagements of extradition, whether of fugitives from justice or
from service, Standin each case on particular stipulations of treaty,
and are not to be inferred from the “favored-nation” clause in
treaties. e
- Ib.
18. A legislative act of the British colony of New South Wales, enact-
ing that certain proceedings may be had in the courts of that col-
ony for the arrest and punishment of the deserting seamen of
any foreign country in that colony, provided the government of
such foreign country assents: Held, that the President cannot
give such assent on the part of the United States, and that it can
be done only by treaty or act of Congress.
Power of President as to legislation of foreign country, 6 Op.,209, Cushing, (1853.)
SEAMEN. 205
19.
21.
2
2
26.
27.
. But a qui-tam action lies for the irregular shipment.
Consuls have no authority to order the sale of a ship in a foreign
port. If, on such sale, the consul retains money for the payment
of seamen's wages, he acts at his own peril, and is responsible to
the owners.
The bark Serene, 6 Op.,617, Cushing, (1854.)
. Masters of American vessels cannot lawfully discharge seamen in
foreign ports without intervention of the consul. (See R. S., §
4576.)
- The schooner Humboldt, 7 Op., 349, Cushing, (1855.)
It does not help the matter to allege that the seamen consent, or
have misconducted themselves, or are not Americans. Of all that,
it is for the consul to judge.
Ib.
. Shipmasters in foreign ports are subject, on the requisition of the
consul, to take on board and convey to the United States dis-
tressed seamen; but not seamen or other persons accused of
crimes, to be transported to the United States for prosecution.
- Case of Seneca S. Bishop, 7 Op., 722 Cushing, (1856.]
. No indictment lies against a master of a ship for discharging irregu-
larly, in a foreign port, a seaman shipped irregularly in the United
States.
The brig Ann Elizabeth, 7 Op., 730, Cushing, (1856.),
Ib.
. Under the treaty with Spain, of 1819, (Pub. Trs, 716,) and the act
of 1829, (4 Stat., 359; R. S., § 5280,) the apprehension and delivery
of a seaman, who is alleged to be a deserter from a Spanish ship,
is a judicial duty, and the State Department cannot change what
a judge has done.
Manwel Castro’s case, 9 Op., 96 Black, (1857.)
To prove the fact of desertion, the treaty requires the exhibition of
the ship's roll, with the name of the deserter upon it, and this is
not met by the mere certificate of a Spanish consul.
Ib.
The extradition laws do not require the proceedings against a de-
serting seaman to be either carried on or approved by the attor-
ney of the United States for the proper district.
* Duties of district attorneys, 9 Op., 246, Black, (1858.3
28. The master of a vessel is a mariner within the meaning of sections
3 and 4 of the act of 1803, (2 Stat., 203; R. S., §§ 4577,4582,) and
he is entitled, if a citizen of the United States, to three months’
additional wages on being discharged in a foreign port, as in the
case of a like discharge of any other Seaman or mariner.
e Arey's case, 11 Op., 458, Speed, (1866.)
206 SEAMEN.
29. The provisions of the treaty of 1 May, 1828, between the United
States and Prussia, (Pub. Trs., 658,) for the arrest and im-
prisonment of deserters from public ships and merchant-vessels of
the respective countries, applies to public vessels sailing under
the flag of the North German Union and deserters from such
VeSSels.
Deserters from the Niobe, 12 Op., 463, Evarts, (1868.)
30. Where the crew of an American ship had been shipped by the
master in the United States, and the shipping articles contained
a clause that “all moneys were to be paid in United States cur-
rency, or its equivalent in gold, at the current rate of exchange :”
Held, that in settling some accounts with the master at Singapore,
India, for wages of his crew, the United States consul there
should have allowed a deduction from the pay of the seamen of
the difference between United States currency and gold or silver
the currency of Singapore, and the cost of exchange thereon .
between India and America.
Case of the ship Fearless, 13 Op., 557, Akerman, (1872.)
. 31. Though the law is liberal in construing contracts in favor of seamen,
still it holds them capable of contracting, and bound like other
persons by their contracts when no fraud is practiced upon them.
+. Ib.
32. The provisions of the act of 1872, (17 Stat., 273; R.S., § 4596 et seq.)
relating to “discipline of seamen,” were intended by Congress
to apply only to seamen lawfully engaged for service on American
vessels. [See ex-parte D'Olivera, 1 Gallison, 473, as to construc-
tion of act of 1790, (1 Stat. 131.)]
Case of district attorney for Oregon, 14 Op., 325, [326, Williams, (1873.)
33. A consul has no authority to demand and receive from the master
of a vessel the money and effects belonging to a deserter from
the vessel. -
- Deserters from the bark Bolivia, 14 Op., 520, Williams, (1875.)
34. The steps which should be taken by the master with reference to
the disposition of such property indicated. Ib
35. There is necessarily a several and distinct contract with each Seaman,
for the voyage, at his own rate of wages; and though all may sign
the same shipping-paper, no one is understood to contract jointly
with, or to incur responsibility for, any of the others. The ship-
ping articles constitute a several contract with each seaman to all
intents and purposes, and are so contemplated by the act of Con-
gress for the government and regulation of seamen in the mer-
chant service; and have been so practically interpreted by courts
of justice, as well as by merchants and mariners, in all commer-
cial nations in modern times. (1 Stat., 131; R. S., § 4596 et seq.)
Oliver vs. Alexander, 6 Peier8, 145.
SEAMEN. -- 207
\
36. Seamen of the United States put on board a vessel of the United
States by a consul in a foreign port are bound by the same regu-
lations as articled seamen. (See R. S., § 4577.)
United States vs. Sharp, Peters, C. C., 118.
37. Under the act of 1803, (2 Stat., 203; R. S., § 4578,) requiring the
masters of American vessels bound homeward to provide pass-
age for destitute seamen, on the request of consuls, the consul’s
certificate shall be presumptive evidence, not merely of the fact
of the master's refusal to take the seaman on board, but of all
the facts stated in the enacting clause, which are necessary to
bring the case within the penalty.
* Matthews vs. Offley, 3 Sumner, 115.
38. Foreigners, while employed as seamen in the merchant-ships of the
United States, are deemed to be “mariners and seamen of the
United States,” within the language and policy of the act of 1803,
(2 Stat., 203; R.S., § 4577,) which provides for destitute seamen in
foreign ports.
Ib.
39. If a seaman be entitled to the privileges of an American seaman,
and be destitute, the consul is the proper judge as to the ship on
board of which he should be placed for his return to the United
States. - *
- Ib.
40. The bond given to the United States under the act of Congress of
1803, (2 Stat., 203; R. S., § 4576,) by the master of a vessel,
conditioned for the return of the crew to the United States, is not
forfeited where a vessel is sold in a foreign port and does not re-
turn to the United States; nor does it extend to the seaman who
is lawfully separated from the ship, without the fault of the
master or owner; but to those cases only where the vessel returns
to the United States and where the ship's company continue Sub-
ject to the authority of the master.
Montell vs. United States, Taney's Dec., 24.
41. By the general maritime law, desertion is an unauthorized absence
from the ship, with an intention not to return. * ! .
- - Coffin v8. Jenkins, 3 Story, 108.
42. A was indicted for going on board a vessel, about to leave, without
permission, in violation of section 62 of the shipping act of June
7, 1872: Held, that section 62 was valid, and it was competent to
convict the prisoner, a runner for a boarding-house, and that the
act is to be construed as protecting foreign vessels as well as
vessels of the United States. -" * , , * *
United States vs. Anderson, 10 Blatchford, 226.
208 + SEAMEN.
43.
45.
46.
47.
48.
49.
50.
51.
The provisions of the act of 1872, (17 Stat., 265; R. S., § 4512.)
known as the shipping act, provided that every agreement
of the seaman shall be signed in the presence of a shipping
commissioner; the act of January 15, 1873, (17 Stat., 410,)
provided that section 12 of the above act should not apply to
masters of vessels when engaged in trade with Mexico: Held,
that the act of 1873 did not modify the provisions of the 13th
Section of the act of 1872, and that the master of a vessel mak-
ing a voyage from New York to Mexico must make the agree-
ment required, and the agreement must be signed, &c., before a
Shipping commissioner. --
United States vs. Steamship City of Mexico, 11 Blatchford, 489.
. A consul has no right to detain seamen in prison as a punishment,
after he has discharged them from their contract at the request
of the master. -
Jordan vs. Williams, 1 Curtis, 69.
The action of a consul in discharging a seaman in a foreign port is
not conclusive on the court where libel is filed for wages.
r Campbell vs. The Uncle Sam, 1 MoAllister, 77.
An attempted rape by a seaman upon a female passenger in a for-
eign port is a sufficient ground of discharge.
Nieto vs. Clark, 1 Clifford, 145.
To work a forfeiture of wages, on the ground of desertion, the case
must be brought strictly within the act of Congress.
Gifford vs. Kalloch 3 Ware, 45.
So as to discharges for intemperance or smuggling.
e Ib.
A deliberate refusal to do duty is a high offense. Except in very
peculiar cases, the master must be obeyed.
The Palledo, 3 Ware, 321.
A consul’s certificate is not evidence of acts not official or within
his personal knowledge. The certificate of a consul in a foreign
port as to transactions concerning a seaman's discharge, not
within his official duties, is not evidence.
Brown v8. The Independence, Crabbe's Rep., 54.
A minor who conceals himself on board a vessel, and is discovered
when the vessel is at sea, although he has been put on duty as a
seaman, could be put on shore and delivered to a consul without
the payment of extra wages. In such case it would have been
the duty of the consul to have afforded relief as a destitute sea-
Iſla Il.
Luscom vs. Osgood, 1 Sprague, 82.
SEAMEN. - 209
52. The right given to seamen by the act of 1840 (5 Stat., 396; R. S.,
§ 4567) to lay their complaints before the American consul in for-
eign ports is one of great importance, which a court of admiralty
will carefully protect.
- - Morris vs. Cornell, 1 Sprague, 62.
53. For what misconduct they may be discharged in a foreign port.
- Jones vs. Sears, 2 Sprague, 43.
54. Where seamen are shipped on a vessel, unseaworthy at the time,
they may abandon her or refuse to do duty on board. Such acts,
under such circumstances, not amounting to mutinous conduct,
do not work a forfeiture of wages.
- - - The Moslem, Olcott, 289.
55. The act of 20th July, 1840, (5 Stat., 394; R. S., § 4575,) the fourth
clause of which provides that “all interlineations or erasures in
a hand different from that in which such duplicates were orig-
inally made shall be deemed fraudulent alterations, working no
change in such papers, unless satisfactorily explained in a man-
ner consistent with innocent purposes and the provisions of law
which guard the rights of mariners,” applies only to alterations
which would vary their effect in respect to seamen. Erasures
immaterial in this respect would be disregarded. -
The Eagle, Olcott, 232.
56. Where a contract between the vessel and crew was fully explained
and signed, the voyage as laid down in the articles cannot be
varied. -
The Quintero, 1 Lowell, 38.
57. Otherwise as to clauses oppressive in their nature and not clearly
explained.
Ib.
58. Notwithstanding the very sweeping language of section 3 of act 1803 .
(2 Stat., 203; R. S., § 4576) and section 8 of act 1840, (5 Stat., 395,)
requiring masters of American vessels to give bond for the return
of all the crew, unless discharged in a foreign country with con-
sent of a consul, &c., yet these sections, construed with the aid of
the other parts of these statutes, cannot be held to require a
master to return to the United States foreign seamen shipped at
their own home, for a particular cruise, ending where it began,
and discharged there according to the terms of their contract,
though without the consent of the consul.
United States vs. Parsons et al., 1 Lowell, 107.
59. The consent of a consul could not be rightly withheld in such a case,
and there is no law requiring it to be asked. &
Ib.
14
210 - SEARCH, RIGHT OF.
60.
61.
62.
63.
64.
65.
* 66.
7.
Whether the bond is intended to be given for seamen, even if
shipped in the United States, who by the terms of their engage-
ment are entitled to be discharged abroad, quare.
- Ib.
Extra Wages allowed on the ground of a discharge in a foreign port
and of an insufficient supply of provisions.
The Hermon, 1 Lowell, 515.
To constitute desertion and work a forfeiture of wages there must
be an intent to desert. Going ashore without leave and with
intent to return is not desertion.
- The Catawanteak, 2 Benedict, 189.
A slight disobedience may not justify a discharge and loss of wages.
The Cornelia Amsden, 5 Benedict, 315.
A female shipped on board a vessel as cook is entitled to all the
rights and subject to all the liabilities of a seaman or mariner.
The requirements of the statute concerning shipping-articles ex-
tends as well to each cook as to the common sailor.
Sageman vs. The Brandywine, 1 Newberry, Adm., 5.
The Louisiana, 2 Peters, Adm., 268.
A seaman, by the consent and assistance of the mate, but unknown
to the master, left the vessel. Held, not liable to desertion or to
a forfeiture of wages.
The Caroline E. Kelly, 2 Abbott, U. S., 160.
Where seamen were shipped for a voyage from the United States
and return, with a proviso that they might be discharged in a
foreign port by mutual consent of themselves and the master,
such agreement does not take the case out of the statute, requir-
ing the payment of three months’ extra wages; the consul must
exact one month's wages for the Government, though he may
permit the seaman to waive the two months to which he is en-
titled. f
Pray's case, 10 C. Cls., 454.
Where the nationality of the crew does not appear from the crew
list, it will be presumed that they are citizens of the United
States.
Jb.
SEARCH, RHGHT OF.
See Visitation and Search.
SECRETARIES OF LEGATION.—SEIZURE. 211
SECRETARHES OF ELIEGATHON.
See Compensation.
Diplomatic Officers.
JPublic Ministers.
sECRETARY or stare.
1. The Secretary of State must decide, according to his own discretion,
whether he will press the claim of a citizen of the United States
upon the attention of a foreign government.
\ Perkins's claim, 9 Op., 338, Block, (1859.)
2. Where by a convention it was agreed that all moneys awarded by
the commissioners under that convention on account of any claim,
should be paid by one government to the other, the moneys found
due from the foreign government to claimants who were citizens
of the United States were properly paid to the Secretary of State,
Whose duty it was to have the same paid to those entitled to
receive them.
Stubbs’s case, 10 Op., 31, Bates, (1861.)
3. The Secretary of State has authority, under the joint resolution of
5th July, 1866, (14 Stat., 362,) to pay the moneys appropriated for
the Paris Exposition, to be expended in Europe, in coin.
- Paris Ea:position, 12 Op., 9, Stambery, (1866.)
4. There is no law authorizing the Secretary of State to furnish the
Owners of an American merchant vessel with a letter of safe-con-
duct to the American ministers and naval officers in the East.
The Meteor, 12 Op., 65, Stanbery, (1866.)
5. The direction of the entire work on the new State, War, and Navy
building, and the disbursement of the appropriations provided
therefor, are by law devolved on the Secretary of State.
Disbursements for new State Department, 14 Op., 409, Williams, (1874.)
SEHZED PRE,
See Capture and Detention.
Illicit Trade.
Neutral Territory.
Penalties and Forfeitures.
1. A vessel feloniously brought into one of our ports and there seized
for violation of our revenue laws, should be restored to the inno-
cent OWners.
Case of the Maria, 1 Op., 509, Wirt, (1821.)
.212 SERVANTS-SHIPS.
2. Nations may prevent seizures on the high seas, in the neighborhood
of their coasts, in violation of their laws, and there is no fixed rule
prescribing the distance from the coast within which such seizures
may be made. -
Church vs. Hubbart, 2 Cranch, 187.
3. The seizure de facto, out of his dominions, will not give jurisdiction to
a sovereign over a thing never brought within them.
Rose vs. Himely, 4 Cranch, 241.
4. He cannot authorize a seizure on the high seas for a breach of a
municipal regulation.
Ib.
5. A seizure for the breach of the municipal laws of one nation cannot
be made within the territory of another.
The Apollon, 9 Wheaton, 362.
sERVANTs.
1. The arrest of the domestic servant of a public minister is declared
illegal by the act concerning crimes, (1 Stat., 117; R. S., § 4063.)
All process for the purpose is annulled, and the persons concerned
in the process are liable to fine and imprisonment.
Case of Van Berckel's servant, 1 Op., 26, Randolph, (1792.)
2. If, however, the domestic be a citizen or inhabitant of the United
States, and shall have contracted, prior to his entering into the
service of the minister, debts still unpaid, he shall not take the
benefit of the act.
Ib.
3. Nor shall any person be proceeded against under the act for such
- arrest, unless the name of the domestic be registered in the Sec-
retary of State's Office and transmittted to the marshal of the
district in which Congress shall reside.
- Ib.
4. Domestic servants of a foreign minister are not liable to the ordinary
tribunals of the country for misdemeanors.
United States vs. Lafontaine, 4 Cranch Cir. Ct., 173.
sHIPMAsTERs.
See Seamen.
SHHPS,
See Eaſterritoriality.
Foreign Ships of War.
Neutral Territory
SHIP's PAPERS. - 213
SHHP2S PAPERS.
See Consular Officers.
1. Section 2 of act of 1803 (2 Stat., 203; R. S., § 4309,) does not require
the papers of an American vessel in a foreign port to be delivered
to the consul, except in cases where it is necessary to make an
entry at the custom-house. * , -
- Case of the consul at Nassau, 4 Op., 390, Mason, (1845.)
2. In order that the master of a ship, on her “arrival” in a foreign port,
Shall be compellable to deposit the ship's papers with the consul,
the arrival must be such an one as involves entry and clearance.
Case of the commercial agent at St. Thomas, 6 Op., 163, Cushing, (1853.)
3. Masters of American vessels are subject to prosecution in the name
of the consul for omission to deposit with him the papers accord-
ing to law, but not to indictment. (2 Stat., 203, § 2; R. S., §
4310.) p
The Gauntlet and the Alleganian, 7 Op., 395, Cushing, (1855.)
4. The commander of an American vessel is required to deliver his reg-
ister and other ship's papers to the consul at a foreign port only
in cases Where he is compelled to make an entry at the custom-
house. -
The New York and Havre Steamers, 9 Op., 256, Black, (1858.)
5. The master of an American vessel sailing to or between ports in the
British North American provinces is required, on arriving at any
Such port, to deposit his ship's papers with the American consul.
American Steamers at Port Sarnia, 11 Op., 72, Bates, (1866.)
6. The act of 1861 (12 Stat., 315; R. S., § 1720,) does not change or
affect the duties of masters of American vessels running regularly
by Weekly or monthly trips, or otherwise, to or between foreign
ports, as imposed by act of 1803, (2 Stat., 203; R. S., § 4309.) Ib
7. If an American vessel is obliged by the law or usage prevailing at a
foreign port to effect an entry, and she does enter conformably to
the local law or usage, her coming to such foreign port amounts
to an arrival within the meaning of section 2 of the act of 1803,
(2 Stat., 203; R. S., § 4309,) independently of any ulterior desti-
nation of the vessel, or the time she may remain or intend to
remain at Such port, or the particular business she may transact
there.
Ib.
8. The provisions of the act of 1803 (2 Stat., 203; R. S., § 4309) in refer-
ence to the deposit of ships' papers with American consuls apply
to American steam ferry-boats running between Detroit and Wind-
Sor, Canada West. (But see subsequent act, 1872, 17 Stat., 214;
B. S., § 2792.)
Case of the consul at Windsor; 11 Op., 237, Speed, (1865.)
214 SICK SEAMEN–SLAVES.
SICK SEAN HEN,
See Seamen.
SELAVIES.
1. The bringing away of slaves from Martinique, the property of resi-
dents there, may be piracy, or, depending upon the precise place
of its commission, may only be an offense against the municipal
laws.
Slaves from Martinique, 1 Op., 29, Randolph, (1792.)
2. The Government may instruct the attorney of the United States to
prosecute the offenders criminaliter as far as the law will permit,
having in view the restitution of the negroes to their true owners,
and if that fail to restore them, to issue civil process with the ap-
probation of the owner or agent. -
Ib.
3. Where a French vessel, with Africans on board unlawfully taken
from their native land, was captured by pirates, and from them
recaptured by an American vessel and brought into port, and a
demand for the Africans was made by the French minister with
a view to their restoration to their native land, Held, that the
application was well founded and should be acceded to.
Case of the La Pensée, 1 Op., 534, Wirt, (1822.)
4. It is the duty of the President to cause to be delivered to the minister of
Denmark a slave who, by concealment in an American vessel lying
at St. Croix, had been brought to a port of the United States,
and detained in prison until orders might be given concerning
his further disposal. }
James Barry's case, 1 Op., 566, Wirt, (1822.)
5. So long as Denmark tolerates slavery in her dominions, it is an inva-
sion of her sovereignty to take away from St. Croix by seduction,
invitation, connivance, ignorance, or mistake, slaves from the
possession of Danish owners, and if avowed and unredressed on
our part, is a just cause of war; to bring them to the United
States and to refuse to return them to their owners on the call of
their government, would be such a violation of private property
and such a lawless infraction of the rights, and sovereignty of
Denmark, as to expose us to the just resentment of that nation,
and the merited reproach of the civilized World.
Ib.
SLAVES. i 215
6. The President may issue an order, directed to the marshal of the
district, requiring him to deliver the slave to the order of the
minister of Denmark; or he may notify the governor of the State
of the facts, and request him to cause the slave to be delivered to
the marshal for the purpose of delivering him over to the min-
ister. k; &
Ib.
7. Certain slaves were shipped by their Spanish owners from Havana
8. An
to Pensacola in an American vessel, in violation of the laws
of the United States. The vessel was captured by the Ameri-
can military force then occupying Fort Barrancas. Afterward,
While proceeding to adjudication, the slaves and vessel were
seized by a revenue vessel and carried into the port of Mo-
bile. The vessel and cargo were condemned, but restitution of
the slaves was awarded, because the original capture was not
made by a “commissioned vessel of the United States.” The origi-
nal capture being lawful, and the slaves (though restored) being
on board unlawfully, the Spanish owners have no claim as for an
“injury” under the treaty with Spain of 1819. (Pub. Trs., 715.)
Case of Spanish slaves, 2 Op., 198, Berrien, (1829.)
engagement in a treaty for mutual freedom and liberty of com-
merce cannot be construed to imply an obligation to protect the
rights of foreign owners of slaves brought to our shores as sea-
II].62Il. º
Slaves on British vessels, 2 Op., 475, Taney, (1831.)
9. A ship entering the port of a friendly power with slaves on board,
would not, according to the law of nations in analogous cases,
be responsible on that account to the local authorities so long as
those slaves continued on board. But it may be conceded, in view
of the English doctrine, that in this particular case ships volun-
tarily entering British ports, with a knowledge of the state of Brit-
ish law, may be taken to have voluntarily submitted to that law,
right or wrong, as it is interpreted there.
Case of the Creole, 4 Op., 98, Legaré, (1842.)
10. The courts of the United States are open to the complaint of the
owner of an abducted slave; but the executive authority cannot
properly interfere to administer relief in such cases. -
Where an American vessel has brought off a slave from the
Cape de Verde Islands, the Executive will not interfere further
than to direct the district attorney to inquire into the facts, and
to institute a prosecution if they warrant it.
Case of Antonio Soares Timas, 4 Op., 269, Nelson, (1843.)
216 SLAVE-TRADE.
SLAVE-TRAIDE.
1. The act of the United States schooner Grampus, in bringing in for
adjudication, under act of March 3, 1819, (3 Stat., 510; R. S., §
4293,) “to protect the commerce of the United States and punish
the crime of piracy,” the Phoenix, with Africans found on board
of her, was not a violation of the laws concerning the slave-trade.
The Phoenia, 2 Op., 365, Berrien, (1830.)
2. The selling of an American vessel in the port of Rio Janeiro to a
slave-dealer, deliverable on the coast of Africa, is not of itself an
aiding or abetting of the slave-trade. But if he lend assistance
to such slave-dealer by navigating the vessel to the coast of
Africa upon an outward slave-trade voyage, he becomes thereby
a participant in the trade, and subject to punishment; but if he
only make a boma fide sale of his property, deliverable upon that
coast or elsewhere, he does not incur any responsibility.
The Lucy Penniman, 4 Op., 241, Nelson, (1843.)
3. That a citizen of the United States who charters an American ves-
sel to a slave-dealer to deliver at his factory or to his agents
on the coast of Africa articles which may be exchanged for slaves,
or food which may be used to supply them, is thereby necessarily
implicated as aiding and abetting the slave-trade, cannot be
affirmed as universally true. A trade in articles of necessity to
the coast of Africa is not interdicted by our laws, nor is the sale
of such articles upon the coast of Africa to one engaged in the
prosecution of the slave-trade thereby prohibited. Nor does the
chartering of a vessel for such an object per se involve any viola-
tion of the provisions of our statute.
- Ib.
4. If an American citizen charter his vessel for the prosecution of a
slaving voyage he will be guilty of a violation of the slave-trade
acts; but if, he charter his vessel for the prosecution of a voyage
which is prima facie innocent, the fact that it may be converted
to an inhibited ulterior purpose will not expose him to the pen-
alty or his vessel to forfeiture.
Iö.
5. Americans who have participated in the slave-trade in foreign ports
are indictable in any district of the United States in which they
may be found. -
- Case of Captains Clapp and Smith, 5 Op., 454, Crittenden, (1851.)
SOWEREIGNTY. 217.
6. As to what will constitute a violation of the laws against slave-trad-
ing, and the proof required in particular cases, see—
The Emily, 9 Wheaton, 381.
The Merino, 9 Wheaton, 391.
The Plattsburgh, 10 Wheaton, 133.
United States vs. Gooding, 12 Wheaton, 460.
United States vs. La Garonne, 11 Peters, 73.
United States vs. Morris, 14 Peters, 464.
Strohm vs. United States, Taney's Dec., 413.
United States vs. Westervelt, 5 Btatehford, 30.
7. The African slave trade is not contrary to the law of nations.
The Antelope, 10 Wheaton, 66.
8. One nation cannot execute the penal laws of another, and conse-
Quently a foreign vessel engaged in the slave-trade cannot law-
fully be captured by an American cruiser.
g - Ib.
9. Persons trading to the west coast of Africa, on which coast two kinds
of commerce are carried on—one (the regular trade) lawful, the
other (the slave-trade) criminal—should keep their operations so
clear and distinct in their character as to repel the imputation of
a purpose to engage in the latter.
- The Slavers, 2 Wallace, 350.
${}V EE2FEH&NTRY.
See Penalties and forfeitures.
1. It is an offense against the law of nations for any persons, whether
citizens or foreigners, to go into the territory of Spain with
intent to recover their property by their own strength, or in any
manner other than its laws permit.
Territorial rights—Florida—1 Op., 68, Lee, (1797.)
2. So long as Denmark tolerates slavery in her dominions it is an inva-
sion of her sovereignty to take away from St. Croix by seduc-
tion, invitation, connivance, ignorance, or mistake, slaves from the
possession of Danish owners, and if avowed and unredressed on
our part is a just cause of war.
* James Barry's case, 1 Op., 566, Wirt, (1822.)
3. The seizure of an American vessel by an American ship of war,
within the jurisdiction of a foreign government, for an infringe-
ment of our revenue or navigation laws, is a violation of the ter-
ritorial authority of the foreign government.
The schooner Ariel, 4 Op., 285, Nelson, (1843.)
4. The law of nations as to territorial sovereignty discussed.
Bark Eliza and pilot, 7 Op., 229, Cushing, (1855.)
}
t
218 SOWEREIGNTY.
. It is a settled principle of the law of nations that no belligerent can
rightfully make use of the territory of a neutral state for belliger-
ent purposes, without the consent of the neutral government.
British consul’s case, 7 Op., 367, Cushing, (1855.)
5
6. The undertaking of a belligerent to enlist troops of land or sea in a
neutral state, without the previous consent of the latter, is a
hostile attack on its neutral sovereignty. Ib
7. The conquest of a country or portion of a country by a public enemy
entitles such enemy to the sovereignty, and gives him civil domin-
ion as long as he retains his military, possession. Inhabitants
and strangers who go there during the occupation of the enemy
must take the law from him as the ruler de facto, and not from
the government de jure which has been expelled.
The Georgiana and Lizzie Thompson, 9 Op., 140, Black, (1858.)
8. A revolutionary party, like a foreign belligerent power, is supreme
over the country it conquers, as far and as long as its arms can
carry and maintain it.
Ib.
9. The United States Government cannot purchase a grant of land in,
or concession of a right of way over, the territories of another
nation as could an individual or private corporation, since, by
the law of nations, One government cannot enter upon the terri-
tories of another or claim any right whatever therein.
The Chiriquí Improvement Company, 9 Op., 286, Black, (1859.)
10. No foreign power can rightfully erect any court of judicature within
the United States, unless by force of a treaty. The admiralty
jurisdiction exercised by consuls of France in the United States
is not of right.
Glass vs. The sloop Betsey, 3Dallas, 6.
11. A power to seize for a violation of the laws of the country is an at-
tribute of sovereignty, and is to be exercised within the limits
which circumscribe the sovereign power, from which it is de-
rived.
The rights of war may be exercised on the high seas, but a
seizure beyond the limits of territorial jurisdiction for a breach
of a municipal regulation is not warranted by international law.
Rose vs. Himely, 4 Cranch, 241, [279.]
12. The jurisdiction of the nation within its own territory is necessarily
exclusive and absolute. It is susceptible of no limitation not im-
posed by itself. Any restriction upon it, deriving validity from
an external source, would imply a diminution of its sovereignty
to the extent of the restriction, and an investment of that sow-
ereignty to the same extent in that power which could impose
such restriction.
Schooner Exchange vs. McFaddon, 7 Cranch, 116, [136.]
SPANISH CLAIMS. - 219.
13.
14.
15.
16.
17.
18.
19.
All exceptions, therefore, to the full and complete power of a nation
Within its own territories must be traced up to the nation itself.
This consent may be either express or implied.
- Ib.
By the conquest and military occupation of a portion of the territory
of the United States by a public enemy, that portion is to be
deemed a foreign country so far as respects our revenue laws.
United States vs. Rice, 4 Wheaton, 246.
The municipal laws of one nation do not extend in their operation
beyond its own territory, except as regards its own citizens. A
Seizure for the breach of the municipal laws of one nation cannot
be made within the territory of another.
The Apollon, 9 Wheaton, 362.
Every nation acquiring territory, by treaty or otherwise, must hold
it subject to the constitution and laws of its own government, and
not according to those of the government ceding it.
Pollard's lessee vs. Hagan, 3 Howard, 225.
By the conquest and occupation of Castine, that territory passed
under the temporary allegiance and Sovereignty of the enemy.
The sovereignty of the United States over the territory was sus-
pended during such occupation, so that the laws of the United
States could not be rightfully enforced there, or be obligatory
upon the inhabitants who remained and Submitted to the con-
QuerorS. -
United States vs. Hayward, 2 Gallison, 501,
But a territory conquered by an enemy is not to be considered as
incorporated into the dominions of that enemy, without a renun-
ciation in a treaty of peace, or a long and permanent possession.
Until such incorporation, it is still entitled to the full benefit of
the law of postliminy.
Ib.
Where an officer of the Navy, without instructions from his Gov.
ernment, seized property in the Falkland Islands, claimed by
citizens of the United States, which, it was alleged, had been
piratically taken by a person pretending to be governor of the
islands, held, that such officer had no right, without express di-
rection from his Government, to enter the territoriality of a coun-
try at peace with the United States and seize property found
there claimed by citizens of the United States. Application for
redress should have been made to the judicial tribunals of the
Country. -
Davison v8. Seal-skins, 2. Paine, 324.
SPANHSEH CELAHNHS.
See American and Spanish Commission.
220 SPANISH VICEROYS –STATE.
$1:PANTIS H W H CEFR6 WS.
1. It was the practice of the Spanish Crown, during the reigns of Charles
I and his successors of the Austrian dynasty, to delegate to Span-
ish Viceroys, governors, and captains-general the jus legationis,
as well in Europe as in Asia and America; and that delegation
was recognized by the public law of Europe.
- Powers of Spanish viceroys, 7 Op., 551, Cushing, (1855.)
S'E'A'; 'E,
1. Some not unimportant aid “ ” * in ascertaining the true sense
of the Constitution may be derived from considering what is the
correct idea of a State, apart from any union or confederation
with other States. The poverty of language often compels the
employment of terms in quite different significations; and of this
hardly any example more signal is to be found than in the use of
the Word we are now considering. It would serve no useful pur-
pose to attempt an enumeration of all the various senses in which
it is used. A few only need be noticed.
It describes sometimes a people or community of individuals
united more or less closely in political relations, inhabiting tem-
porarily or permanently the same country; often it denotes only
the country or territorial region inhabited by such a community;
not unfrequently it is applied to the government under which the
people live; at other times it represents the combined idea of
people, territory, and government. º -
This is undoubtedly the fundamental idea upon which the
republican institutions of our own country are established.
Texas vs. White, 7 Wallace, 700, [720.]
2. ſn the Constitution the term State most frequently expresses the com-
bined idea just noticed, of people, territory, and government. A
State, in the ordinary sense of the Constitution, is a political com-
munity of free citizens, occupying a territory of defined bounda-
ries, and organized under a government sanctioned and limited
by a written constitution, and established by the consent of the
governed. It is the union of such States, under a common con-
stitution, which forms the distinct and greater political unit which
that Constitution designates as the United States, and makes of
the people and States which compose it one people and one
country. * * * -
- - lb.
3. But it is also used in its geographical sense, as in the clauses which
require that a Representative in Congress shall be an inhabitant
of the State in which he shall be chosen, and that the trial of
crimes shall be held within the State where committed.
Ib.
STATE AUTHORITY-STATE DEPARTMENT. 221
4. And there are instances in which the principal sense of the Word
seems to be that primary one to which we have adverted, of a
people or political community as distinguished from a govern-
ment. -
Ib,
5. In this latter sense the word seems to be used in the clause which
provides that the United States shall guarantee to every State in
the Union a republican form of government, and shall protect
each of them against invasion. -
In this clause a plain distinction is made between a State and
the government of a State. Ib
STATE ATUTH6ORHTY.,
See JEactradition.
sTATE DEPARTMENT.
1. By article 11 of the treaty of 1819, between the United States
and Spain, (Pub. Trs., 716,) the Department of State was made
the depository of the records and papers referred to in the article.
They should not be delivered to the claimants, and any law of
Congress which should authorize or direct them to be delivered
up would be a violation of the treaty. -
- Depository of records, 2 Op., 515, Taney, (1832)
2. Miscellaneous expenditures incurred by order of the State Depart-
ment for the purpose of preserving the neutrality of the United
States are chargeable to the funds of that Department.
Case of the United States and Ocean Wave, 7 Op., 398, Cushing, (1855.)
3. Where, by the convention of 1853 with Great Britain (Pub. Trs., 328)
it was agreed that all moneys awarded by the commissioners
under the convention, on account of any claim, should be paid
by one government to the other, the moneys found due from the
foreign government to claimants, who were citizens of the United
States, were properly paid to the Secretary of State, whose duty
it was to have the same paid to those entitled to receive them.
Stubbs's case, 10 Op., 31, Bates, (1861.)
4. It is the appropriate duty of the disbursing-clerk of the State Depart-
ment to take charge of and disburse such moneys.
- Ib.
5. He is not entitled, therefore, to commissions on the fund for any ser-
vices rendered in keeping and disbursing the same. &
Ib.
222 STATE, WAR, AND NAVY BUILDING—STATUTES.
STATE, WAR, AND NAVY BRUHELFDHNG.
1. The direction of the entire work on the new State, War, and Navy
building, and the disbursement of the appropriations provided
therefor, are by law devolved upon the Secretary of State.
Disbursements, 14 Op., 409, Williams, (1874.)
sTATUTEs.
1. An act of Congress which contains no provision as to the time when
it shall go into effect, takes effect when it receives the approval
of the President.
Hunt's case, 3 Op., 82, Butler, (1836.)
2. In general the law does not notice fractions of a day. Where, how-
ever, questions of rights, growing out of instruments bearing the
same date, arise, the precise time of the approval of an act may be
inquired into.
Ib.
3. In construing an act of Congress the declarations of members of Con-
gress, in debate on the passage of the law, cannot be considered
to control the legal intendment of the law.
Derrick & Mackie's case, 6 Op., 464, Cushing, (1834.)
4. A statutory provision which authorizes the President to reconsider
a thing lawfully done under a previous act of Congress, is not
mandatory in its effect.
Appointment of a commissioner, 8 Op., 41, Cushing, (1856.)
5. A statute which merely authorizes the payment of a sum of money
by one of the Heads of Department, is not mandatory in fact or
in amount.
Appropriation act, P. O. Department, 8 Op., 39, Cushing, (1856.)
6. Distinction of effect between authority and command in statutes.
- The words “may ” and “shall” in statutes, have no fixed mean-
ing of either authority or command. - .
- George H. Giddings's case, 8 Op., 111, Cushing, (1856.)
7. When private bills are inserted as amendment in the general acts of
appropriations, such bills are to be construed most in the sense
of the rights of the Executive, and of the branch of Congress
which acquiesces in such irregular legislation. Ib
8. As to every act professing to repeal or interfere with the provisions of
a former law, it is a question of construction whether it operates.
as a total or partial repeal. -
California claims, 12 Op., 250, Starbery, (1867.)
STEAMER WIRGINIUS—SUITS. . 223
9. The laws of the United States ought not, if it be avoidable, so to be
Construed as to infract the common principles and usages of na-
tions or the general doctrines of national law.
Talbot vs. Seeman, 1 Cranch, 43.
10. An act of Congress ought never to be construed to violate the law
of nations if any other possible construction remains, and, con-
sequently, can never be construed to violate neutral rights or to
affect neutral commerce further than is warranted by the law of
nations, as understood in this country.
- Murray vs. Schooner Charming Betsy, 2 Cranch, 118.
11. No general words in a statute can divest the Government of its
rights or remedies.
United States vs. Herron, 20 Wallace, 251.
12. A new statute which “amends” an old one, and purports to revise the
entire matter to which they both had reference, impliedly repeals
the former act.
Murdock vs. City of Memphis, 20 Wallace, 590.
STREATHER WHHH, GHNHÚSe
See Aliens.
Virginius.
SūHTTS,
See Executive interference.
Property of the United States.
Public minister.
1. The courts of the United States are at all times open to the subjects
of a foreign power in friendly relations with us. The more
especially will such remedies be extended in case of fraud.
Antoine's case, 1 Op., 192, Rush, (1816.)
2. In general, it is not the duty of the United States to assume the legal
defense by counsel of ministerial officers of the law, where they
are sued for official acts.
But the President, in the discharge of his constitutional duty
to take care that the laws be faithfully executed, may, in his dis-
Cretion, well assume in certain cases the defense of such minis-
terial officers. -
Case of the marshal of Indiana, 6 Op., 220, Cushing, (1853.
3. The right to do this cannot be limited to cases in which the property
of the United States is concerned, but extends to other cases,
224. SURETIES.
more especially those affecting the constitutional security of the
Government, whether in the relations of the United States to
foreign governments, or that of the States among themselves, or
that of the States to the United States.
Ib.
4. Where a court of one of the States assumes to take, by habeas corpus,
out of the hands of a marshal of the United States, a person held
by him as a fugitive from foreign justice, and under reclamation
by treaty, the United States should authorize the marshal to call
in aid the services of the district attorney.
Heilbronn's case, 6 Op., 227, Cushing, (1853.)
5. In cases of vexatious suits against marshals of the United States for
lawful acts done by them in the extradition of fugitives from
justice or service, the President may authorize the employment
of counsel in their behalf by the United States.
Case of marshal in Pennsylvania, 6 Op., 500, Cushing, (1854.)
6. Judicial proceedings, by certain private parties, having been had in
the consular court at Alexandria, Egypt, before H., the consul-
general, against one D., the latter afterward brought suit against
the late consul-general in the supreme court of the District of
Columbia, alleging that he had acted in bad faith, maliciously,
and without authority of law. The consul-general thereupon
asked that the Government assume the defense of this suit.
Advised that, as the proceedings against D. were not promoted
by or in the interest of the United States, the latter are under
no obligation to assume the defense of the suit. -
Charles Hale's case, 14 Op., 189, Williams, (1873.)
SHJERETENHES,
See Bonds.
1. The sureties of a public officer are not liable to the United States for
moneys improvidently advanced to such party by the Govern-
ment after he shall have ceased to hold office.
Case of a sub-Indian agent, 8 Op., 7, Cushing, (1856.)
2. Laws requiring of Government officers the settlement of accounts at
stated periods, or which contain directions binding on the officers,
constitute no part of the contract with the Surety. . -
- United States vs. Kirkpatrick, 9 Wheaton, 720.
United States v3. Nicholl, 12 Wheaton, 505.
United States vs. Cutter, 2 Curtis, 617.
3. Mere delay or voluntary forbearance on the part of a creditor toward
the principal debtor, not amounting to an agreement, and creat-
TENURE OF OFFICE. 225
ing no limitation upon the right to proceed, and which can be
terminated at any moment, is no defense to a surety.
United States vs. Kirkpatrick, 9 Wheaton, 720.
Sprigg vs. Bank of Mount Pleasant, 14 Peters, 201.
Creath vs. Sims, 5 Howard, 192.
4. If a bond drawn to be executed by two sureties be signed by only
one, and by him be delivered as an escrow to operate as his deed
when the other shall have signed and delivered it, he is not bound
until such signature and delivery by the other surety; otherwise
if the first who signs delivers it as his deed.
Duncan vs. United States, 7 Peters, 435.
5. A person who signs as surety a printed form of Government bond,
already signed by another as principal, but the spaces in which
for names, dates, amounts, &c., remain blank, and who then gives
it to the person who has signed as principal, in order that he may
fill the blanks with a sum agreed on between the two parties, and
with the names of two Sureties who shall each be worth another
sum agreed on, and then have those two persons sign it, makes
such person signing as principal his agent to fill up the blanks
and procure the sureties. If such person fraudulently fill up the
blanks with a larger sum than that agreed on between the two
persons, and have the names of worthless sureties inserted, and
such sureties to sign the bond, and the bond thus signed and filled
up be delivered by the principal to the Government, which ac-
cepts it in the belief that it has been properly executed, the party
so wronged cannot, on suit on the bond, again set up the private
understanding which he had with the principal. -
Butler vs. United States, 21 Wallace, 272.
6. The mere taking of a second bond does not discharge the first.
Postmaster-General vs. Munger, 2 Paine, 189.
Postmaster-General vs. Reeder, 4 Washington, 678.
7. Where a new bond is given by a public officer, his sureties thereon
are not liable for prior defalcations unless such liability is spe-
cially provided for. *}
Myers vs. United States, 1 McLean, 493.
8. A surety who executes the bond of a consul is not responsible for
moneys remitted to him for purposes not within his consular du-
ties as defined by law. -
United States vs. Bell, Gilpin, 41.
TENUIREE OF OFFICE.
See Office.
15
226 TERRITORIAL RIGHTS-TONNAGE TAX.
TERRITortAE, RIGHTs.
See Sovereignty. ,
TERRITortAL soverteig NTY.
See Sovereignty.
TONNAGE DUES.
See Treaties.
TownAGE TAx.
1. A statute of a State enacting that the masters and wardens of a port
within it should be entitled to demand and receive, in addition
to other fees, the sum of five dollars, whether called on to per-
form any service or not, for every vessel arriving in that port, is
a tonnage tax, and is unconstitutional and Void. -
Steamship Company v8. Port Wardens, 6 Wallace, 31.
2. It was not only a pro-rata tax which was prohibited by the Constitu-
tion, but any duty on the ship, whether a fixed sum upon its
whole tonnage, or a sum to be ascertained by comparing the
amount of tonnage with the rate of duty. -
* Ib., 35.
3. Taxes levied by a State upon vessels owned by its citizens as prop-
erty, and based on a valuation of the same, are not prohibited
by the Federal Constitution, yet taxes cannot be imposed on
them by the State “at so much per ton of the registered ton-
nage.” Such taxes are within the prohibition of the Constitution
that “no State shall, without the consent of Congress, lay any
duty of tonnage.”
State tonnage tag cases, 12 Wallace, 204.
4. Nor is the case varied by the fact that the vessels were not only
owned by citizens of the State, but exclusively engaged in
trade between places within the State. g
- - Ib.
5. A State cannot, in order to defray the expenses of her quarantine
regulations, impose a tonnage tax on vessels owned in foreign
ports, and entering her harbors in pursuit of commerce.
- Peete v8. Morgan, 19 Wallace, 581.
TRADING WITH ENEMY—TREATIES. 227
6. Any duty, or tax, or burden imposed under the authority of the
States, which is in its essence a contribution claimed for the priv-
ilege of arriving and departing from a port of the United States,
and which is assessed on a vessel according to its carrying capac-
ity, is a tonnage tax within the meaning of the Federal Constitu-
tion, and therefore void. g
- - Cammon vs. New Orleans, 20 Wallace, 577.
TRADING WITH ENEMIY.
See Illicit Intercourse.
TRANsportATION.
We
See Treaties—Great Britain.
TRAVELLING | EXPENSTES.
1. Traveling expenses incurred in the discharge of a public service may
be allowed to an officer, although his salary is fixed by law.
Thompson's claim, 4 Op., 372, Mason, 1845.
2. The American commissioner appointed under the treaty with Great
Britain of 1853 (Pub. Trs., 329) is entitled to the cost of transpor-
tation to and from London. -
Case of British and American commissioners, 6 Op., 65, Cushing, 1853.
*=
TREASON,
See Crimes.
TREATMEs.
GENERALY.
1. Commissioners to execute a treaty must all agree to the same, and
subscribe their names and attach their seals thereto.
Execution of treaties, 1 Op., 66, Lee, (1796.)
2. An engagement in a treaty for mutual freedom and liberty of com-
merce cannot be construed to imply an obligation to protect the
rights of foreign owners of slaves brought to our shores as
seamen. - i
Slaves on British vessels trading to United States, 2 Op., 475, Taney, (1831.)
228 TREATIES,
3. The judiciary cannot arrest the execution of a treaty by stopping the
money to be paid under it while in the hands of the agent of the
executive. -
The Winnebago Indians, 3 Op., 471, Grundy, (1839.)
4. If an injunction should issue stopping the payment of money due un-
der a treaty in the hands of an agent of the Executive, the in-
junction should be disregarded.
Ib.
\
5. An act of Congress must have effect, though inconsistent with a
prior treaty. - .
Florida Claims, 5 Op., 333, Crittenden, (1851.)
6. An act of Congress is as much the supreme law of the land as a
treaty. They are placed on the same footing, and no preference
or superiority is given to the one over the other. The last ex-
pression of the law giving power must prevail.
• * Ib., (345.)
7. In the construction of treaties the general doctrine is that any special
advantage conceded by a party under one article of the compact
is in consideration of all the advantages enjoyed by the same
party under that and all the other articles. -
Case of a deserter from the Danish ship Saga, 6 Op., 148, Cushing, (1853.)
8. En gagements of extradition, whether of fugitives from justice or from
Service, stand in each case on particular stipulations of treaty,
and are not to be inferred from the “favored-nation” clause in
treaties.
Ib.
9. A treaty constitutionally concluded and ratified abrogates whatever
law of any one of the States may be inconsistent therewith.
- Effect of copyright convention, 6 Op., 291, Cushing, (1854.)
10. Semble, a treaty made conformably to the Constitution in substance
and form has the effect of repealing all pre-existing Federal law
in conflict with it, whether unwritten, as the law of nations or
admiralty, or written, as legislative statutes. Ib
11. At any rate, if the effect of a treaty on existing statutes admit of
doubt, Congress never has failed to pass acts requisite to give
effect to any treaty not containing provisions incompatible with
the Constitution.
Ib.
12. The relative authority of treaties and statutes considered.
Pre-emptions in Kansas, 6 Op., 658, Cushing, (1854.).
TREATIES. 229
13.
14.
15
16
17.
o
[Mr. Cushing, although his opinion does not so expressly state,
seems to differ from Mr. Crittenden (see Nos. 5 and 6, Supra) as
to the relative authority of treaties and statutes. See, however,
No. 16 and cases cited, infra.) t
The Government of the United States has constitutional power to
enter into treaty stipulations with foreign states, for the purpose
of restricting or abolishing the property disabilities of aliens or
their heirs in the several States. - -
Droit d'Aubaine, 8 Op., 411, Cushing, (1857.)
Where, by a convention, it was agreed that all moneys awarded by
the commissioners under that convention on account of any claim
should be paid by one government to the other, the moneys found
due from the foreign government to claimants who were citizens
of the United States were properly paid to the Secretary of State,
whose duty it was to have the same paid to those entitled to re-
ceive them.
British treaty of 1853, 10 Op., 31, Bates, (1861.)
The words “confirmed by law” mean confirmation by the act of that
power which under our system enactS. law.
A confirmation by treaty is a confirmation by law, inasmuch as
a treaty is to be regarded as an act of the legislature, whenever
it operates without the aid of a legislative provision.
Laventure's case, 10 Op., 507, Coffey, ad int., (1863.)
Under the Constitution, treaties, as well as statutes, are the law of
the land, both the one and the other, when not inconsistent with
the Constitution, standing upon the same level and being of equal
force and validity; and, as in the case of all laws emanating from
an equal authority, the earlier in date yields to the later.
w Choctaw Indians, 13 Op., 354, Akerman, (1870.)
A treaty cannot be the supreme law of the land, that is, of all the
United States, if any act of a State legislature can stand in its
Way.
If the constitution of a State (which is the fundamental law of
a State and paramount to its legislature) must give way to a
treaty, and fall before it, can it be questioned whether the less
power, an act of the State legislature, must not be prostrate 2
If a law of a State contrary to a treaty is not void, but voidable
only by a repeal or nullification by a State legislature, this certain
consequence follows, that a will of a small part of the United
States may control and defeat the will of the whole.
- Ware vs. Hylton, 3 Dallas, 199, (237.)
230 TREATIES.
18. It is apparent that the constitution or laws of any of the States, so
far as either of them shall be found contrary to the treaty of 1783,
are by the force thereof prostrated before it. *
- Ib.
19. The execution of a contract between nations is to be demanded
from, and, in general, superintended by the executive of each
nation; and, therefore, whatever the decision of the court may
be relative to the rights of parties litigating before it, the claim
upon the nation, if unsatisfied, may still be asserted. But yet
Where a treaty is the law of the land, and as such affects the
rights of parties litigating in court, that treaty as much binds
those rights, and is as much to be regarded by the court as an
act of Congress; and although restoration may be an executive
act, yet to condemn a vessel the restoration of which is directed
by a law of the land, would be a direct infraction of that law, and,
consequently, improper. - $.
. United States vs. The Peggy, 1 Cranch, 109.
20. The rules that neutral bottoms make neutral goods, and that ene.
mies' bottoms make enemies' goods, are not only separable in their
nature, but have been generally separated; and they are held,
by the United States, to be distinct.
- The Nereide, 9 Cranch, 388.
21. Consequently, a stipulation for the former rule, in a treaty, does not
silently introduce the latter.
Ib.
22. Treaties are formed upon deliberate reflection. Diplomatic men
read the public treaties made by other nations, and cannot be
Supposed either to omit or insert an article common in public
treaties without being aware of the effect of such omission or
insertion. Neither the One nor the other is to be ascribed to
inattention. And if an omitted article be not necessarily implied
in one which is inserted, the subject to which that article would
apply remains under the ancient rule.
Ib., (419.)
23. Where a case involved the construction of a treaty, the court heard
a third argument on the application of the executive department.
of the United States Government. -
The Amiable Isabella, 6 Wheaton, 1.
24. The termination of a treaty by war does not divest rights of prop-
erty already vested under it.
Treaties stipulating for a permanent arrangement of territorial
and other national rights are at most suspended during war and
revive at peace, unless they are waived by the parties, or new
and repugnant stipulations àre made. -
Society, 3-c., vs. New Haven, 8 Wheaton, 464.
TREATIES. 231
*
.25. Though a treaty is the law of the land, and its provisions must be
regarded by the courts as equivalent to an act of the legislature.
when it operates directly on a subject, yet if it be merely a stip-
ulation for future legislation by Congress, it addresses itself to
the political and not to the judicial department, and the latter
must await the action of the former.
Foster vs. Neilson, 2 Peters, 253.
26. The original of the treaty with Spain of 1819, (Pub. Trs., 714,) in
the Spanish language, not corresponding precisely with the orig-
inal in English, the language bf the former is to be taken as
expressing the intent of the grantor as to the lands granted and
reserved. The King of Spain was the grantor; the treaty was
his deed ; the exception was made by him; and its nature and
effect depended on his intention, expressed by his words, in ref.
erence to the thing granted and the thing reserved, and excepted
in and by the grant. The Spanish version was in his words and
expressed his intention, and, though the American version showed
the intention of this Government to be different, we cannot adopt
it as the rule by which to decide what was granted, what excepted,
and what reserved. We must be governed by the clearly expressed
and manifest intention of the grantor and not the grantee in
private, a fortiori in public, grants. -
U. S. vs. Arredondo, 6 Peters, 691, (741.)
27. As respects performance of the conditions of a grant by a private
grantee, the date of a treaty is the date of its final ratification.
Ib., (748.)
28. A treaty of cession is a deed or grant by one sovereign to another,
which transfers nothing to which he had no right of property,
and only such right as he owned and could convey to the grantee.
- - Mitchell vs. U. S., 9 Peters, 711.
29. This court has uniformly held that the term “grant” in a treaty com-
prehends not only those which are made in form, but also any
concession, warrant, order, or permission to survey, possess, or
settle, Whether evidenced by writing or parol, or presumed from
possession; and that in the term “laws” is included custom and
usage, when once settled, though it may be “comparatively Of
recent date, and is not one of those to the contrary of which the
memory of man runneth not, which contributed so much to make
up the common-law code.”
Strother vs. Lucas, 12 Peters, 436.
30. It is a Sound principle of national law, and applies to the treaty
making power of this Government, whether exercised with a
foreign nation or an Indian tribe, that all questions of disputed .
boundaries may be settled by the parties to the treaty.
- Lattimer vs. Poteet, 14 Peters, 14.
232 TREATIES.
31. Native Africans unlawfully detained on board a Spanish vessel are
32.
33
34
35
36.
not bound by a treaty, but may, as foreigners to both countries,
assert their rights to liberty before our courts. -
United States vs. The Amistad, 15 Peters, 518,
Every nation acquiring territory, by treaty or otherwise, must hold
it subject to the constitution and laws of its own government, and
not according to those of the government ceding it.
Pollard's Lessee vs. Hagan, 3 Howard, 225.
It is in accordance with the laws of nations, and has been affirmed
by each department of this Government, that the treaty of San
Ildefonso took effect on the day of its date.
Davis vs. The Police Jury of Concordia, 9 Howard, 280.
Whether the king of a foreign country with whom a treaty has been
made had the power to conclude the treaty is a political, not a ju-
dicial question. -
A treaty made in accordance with the Constitution cannot be
disregarded in its provisions unless they infringe the Constitu-
tion. -
Doe vs. Braden, 16 Howard, 635.
A treaty executed and ratified by the proper authorities of the Gov.
ernment becomes the Supreme law of the land, and the courts can
no more go behind it, for the purpose of annulling its effect and
operation, than behind an act of Congress.
- Fellows vs. Blacksmith, 19 Howard, 366, (372.)
On a conquest by one nation of another, and the subsequent sur-
render of the soil and change of sovereignty, those of the former
inhabitants who do not remain and become citizens of the victo-
rious Sovereign, but, on the contrary, adhere to their old allegiance
and continue in the service of the vanquished sovereign, deprive
themselves of protection or security to their property except so
far as it may be secured by treaty. -
Hence, where, on such a conquest, a treaty provided that the
former inhabitants who wished to adhere in allegiance to their
vanquished sovereign, might sell their property, provided they
sold it to a certain class of persons, and within a time named, the
property, if not so sold, became abandoned to the conqueror.
*. United States vs. Repentigny, 5 Wallace, 211.
37. Although it is true, as a principle of international law, that, as re-
spects the rights of either government under it, a treaty is con-
sidered as concluded and binding from the date of its signature,
and that in this regard the exchange of ratifications has a retro-
TREATIES. 233
active effect, confirming the treaty from its date, a different rule
prevails where the treaty operates on individual rights. There,
the principle of relation does not apply to rights of this character
which were wested before the treaty was ratified, and in so far as
it affects them it is not considered as concluded until there is an
exchange of ratifications. *
* Haver vs. Yaker, 9 Wallace, 32.
38. The effect of treaties and acts of Congress, when in conflict, is not
settled by the Constitution ; but the question is not involved in
any doubt as to its proper solution. A treaty may supersede a
prior act of Congress, (Foster vs. Neilson, 2 Peters, 314,) and an act
of Congress may supersede a prior treaty. (Taylor vs. Morton,
2 Curtis, 454; The Clinton Bridge, 1 Walworth, 155.) In the cases
referred to, these principles were applied to treaties with foreign
nations.
The Cherokee Tobacco cases, 11 Wallace, 621.
39. War puts every individual of the respective governments, as well as
the governments themselves, in a state of hostility with each
Other. -
All treaties, contracts, and rights of property are suspended.
The Schooner Rapid and cargo, 1 Gallison, 303.
40... The stipulations in a treaty between the United States and a foreign
nation are paramount to the provisions of the constitution of a
particular State.
- Lessee of Gordon vs. Kerr, 1 Washington, 322.
41. The operation of a treaty before ratification by the governing powers
of the state by whose agents it has been signed considered. ,
The treaty of peace with Great Britain took effect upon the
20th of January, 1783, the date of its signature.
- Hylton's Lessee vs. Brown, 1 Washington, 344.
42. The term “validity”, as applied to treaties, admits of two descrip-
tions—necessary and voluntary. s
By the former is meant that which results from the treaties
having been made by persons authorized by and for purposes
consistent with the Constitution.
By voluntary validity, is meant that validity which a treaty,
voidable by reason of violation by the other party, still continues
to retain by the silent acquiescence and will of the nation. It is
Voluntary, because it is at the will of the nation to let it remain or
to extinguish it. - -
Jones vs. Walker, 2 Paine, 688.
43. The principles which govern and decide the necessary validity of a
treaty are of a judicial nature, while those on which its voluntary
Validity depends are of a political nature.
234 * TREATIES.
44. The power given to the judiciary to decide upon the validity of
- treaties is restricted to their necessary validity.
& Ib.
45. When the political department of the Government deems it condu-
cive to the national interest that a voidable treaty should be
obeyed and observed, the judiciary cannot declare it void.
* Ib.
46. A treaty is the supreme law of the land in respect of such matters.
only as the treaty-making power, without the aid of Congress,
can carry into effect. Where a treaty stipulates for the payment
of money, for which an appropriation is required, it is not opera-
tive in the sense of the Constitution. Every foreign government
may be presumed to know that, so far as the treaty stipulates to
pay money, the legislative sanction is required.
- - Turner vs. American Baptist Missionary Union, 5 McLean, 347.
47. By a principle of international law, on a transfer of territory by one
nation to another, the political relations between the inhabitants
of the ceded country and the former government are changed,
and new ones arise between them and the new government. The
manner in which this is to be effected is ordinarily the subject of
treaty. The contracting parties have the right to contract to
transfer and receive respectively the allegiance of all the native-
born citizens; but the naturalized citizens, who owe allegiance
purely statutory, are, when released therefrom, remitted to their
Original status.
Tobin vs. Walkinshaw, 1 McAllister, 186.
48. Though a treaty is the law of the land, under the Constitution of
- the United States, Congress may repeal it, so far as it is a munici-
pal law, provided its subject-matter is within the legislative power
of Congress. - *
Taylor vs. Morton, 2 Curtis, 454.
49. Congress may pass an act otherwise constitutional notwithstanding
it conflicts with an existing treaty with a foreign nation, and if
the act be plainly in conflict the court cannot inquire whether
Congress had or had not the intention to pass an act in conflict
with the treaty.
Ropes vs. Clinch, 8 Blatchford, 304.
50. The modes by which Congress may abrogate a treaty considered.
- Ib.
51. The violation, by a citizen of the United States, of a treaty with a
foreign state may be punished in the Federal courts by indict-
ment. - § ---
Henfield's case, Wharton State Trials, 49.
TREATIES WITH PARTICULAR STATES. 235
52.
53.
54.
56.
57.
TREATIES WHTH PARTICULAR STATES.
AUSTRIA—HUN GARY.
By article 1 of treaty of 1870 with the Austro-Hungarian mon-
archy, (Pub. Trs., 33,) the right of an American citizen to change
his nationality and become a citizen of Austria is recognized,
but he must have had a residence in that country of five years,
and have been naturalized there, before the United States are
bound to consider the person So naturalized an Austrian citizen.
Heinrich's case, 14 Op., 154, Williams, (1872.)
A doubt might be suggested whether political burdens, such as mil-
itary service, could rightfully be imposed by Austria upon a per-
son who is by birth a citizen of this country, but who is residing
in Austria, and is, by having been born of Austrian parents tem-
porarily residing here, also an Austrian citizen, without the con-
sent of that person, or without his signifying by some act or
declaration his will to be a citizen of that country.
p - lb.
But the party in this case has consented to be an Austrian citizen,
and this consent, together with the laws of that country, has
effected a change in his nationality.
- Ib.
BAWARIA.
. The convention between the United States and Bavaria of 1853.
(Pub. Trs., 42) was not abrogated by the operation of the consti-
tution of the German Empire of 1871. - -
- In re Hermann Thomas, 12 Blatchford, 370.
CHINA.
The act of Congress of 1848, (9 Stat., 276, act 1860, substituted R. S.,
§ 4083,) to carry into effect certain provisions of the treaties be-
tween the United States and China, not having designated any
particular place for the confinement of prisoners arrested for
crime, the same is left for regulation under section 5, or in the
absence of regulation, to the discretion of the acting functionary.
Mr. Carr’8 Questions, 5 Op., 67, Toucey, (1849.)
In virtue of the treaty with China of 1844, Articles XXI and XXV,
(Pub. Trs., 121–122,) all citizens of the United States in China
enjoy complete rights of exterritoriality, and are amenable to no
authority but that of the United States. -
The subject of exterritoriality and judicial authority in China.
considered.
Judicial Authority in China, 7 Op., 495, Cushing, (1855).
286 . TREATIES WITH PARTICULAR STATES.
58. The judicial authority of the United States commissioner to China
is restricted to the five ports mentioned in the treaty with that
nation of 1858. (Pub. Trs., 129.) *
Authority of Commissioners to China, 9 Op., 294, Black, (1859.)
COLOMIBIA,
59. Colombian vessels are entitled, under articles 6 and 31 of the treaty
with that republic of 1824, (Pub. Trs., 151 and 157,) to make re-
pairs in our ports when forced into them by stress of weather;
but not to enlist recruits there, either from our citizens or from .
foreigners, except such as may be transiently within the United
States. º g
& The Libertador, 2 Op., 4, Wirt, (1825.)
60. The convention of 1864 with the United States of Colombia (Pub.
Trs., 158) confers on the commission thereby created authority
to decide the cases which had been presented within the time
specified, and which had not been decided by the commission
appointed under the convention with New Granada of 1857, (Pub.
Trs., 564;) and therefore conferred jurisdiction to determine what
cases had been presented to, but not decided by, the old commis-
Sion. -
Claims under Convention with Colombia, 11 Op., 402, Speed, (1865.)
COSTA RICA. -
61. Under the twelfth section of the act of 1861, (12 Stat., 147,) to carry
into effect the convention with Costa Rica of 1860, (Pub. Trs., 163,)
certified copies or duplicates of papers filed in the State Depart-
ment, and not translations, must be substituted by the commis-
sioner of Costa Rica for the originals withdrawn by him.
Costa Rican Commission, 10 Op., 450, Bates, (1863.)
DENMARK.
62. There being no express provision for the surrender of deserting sea-
men in the convention of 1826, between the United States and
Denmark, (Pub. Trs., 167,) the laws of the United States for the
apprehension of deserters cannot be applied to deserters from a
Danish vessel. + -
# Deserter from the Danish ship Saga, 6 Op., 148, Cushing, (1853.)
FRANCE.
63. The issue of a warrant under the ninth article of the consular con-
vention with France of 1788, (Pub. Trs., 222—annulled by act of
1798—1 Stat., 578,) is within the discretion of the district judge,
and such discretion cannot be interfered with by the supreme
COUlrt. .
Case of Henry Barré, 1 Op., 55, Bradford, (1795.)
TREATIES WITH PARTICULAR STATES. 237
64.
66.
67.
68.
69.
70.
71.
The French consul-general is not privileged from legal process by
the consular convention with that country of 1788. (Pub. Trs.,
219—annulled by act of 1798; 1 Stat., 578.) -
...” Letombé's case, 1 Op., 77, Lee, (1797.)
The word “captured’ in the fourth article of the treaty with France
of 1800 (Pub. Trs., 225—expired by limitation) should not be
construed to have the effect of the term “recaptured” in the sense
- of the treaty.
- Case of a Portuguese Brig, 1 Op., 111, Lincoln, (1802.)
This treaty does not authorize that government to make any demands
on the United States for property recaptured from it, and which
they were obliged to restore to its original owners on the payment
of Salvage.
Ib.
Where a French vessel was captured and condemned as lawful
prize to the captors and to the United States in moieties prior to
the treaty of 1800, (Pub. Trs., 224, expired by limitation,) and the
avails were in the hands of the Clerk Of the Court at the date of the
treaty, and one moiety was paid to the captors, and one moiety has
been paid into the Treasury after the signing of the treaty, and on
hearing in the Supreme Court the decree was reversed, and the
vessel ordered to be restored, and the moiety paid into the Treas-
ury was paid over, Held, that the United States is not liable
for the moiety paid to the captors. -
- The Schooner Peggy, 1 Op., 114, Lincoln, (1802.)
On a reconsideration of the case, and after examination of the
opinion delivered in the Supreme Court, the preceding opinion
substantially re-affirmed. -
The Schooner Peggy, 1 Op., 119, Lincoln, (1802.)
Under the provisions of the convention with France of 1803, (Pub.
Trs., 236,) the United States are not bound to protect demands
for freight where individuals have transported articles for the
French government or for its citizens, since they are within no
provision of the convention. -
- Claims under treaty with France, 1 Op., 136, Lincoln, (1803.)
French consular jurisdiction in an American port depends on a cor-
rect interpretation of the treaties between the two countries,
which limit it to the exercise of police over French vessels and
jurisdiction in civil disputes, -
Authority of French consul, 2 Op., 378, Berrien, (1830.)
The claim of the French envoy to the exercise of judicial power by
the consuls of his government is not warranted by treaty or re-
ciprocity. -
p y Ib.
238 TREATIEs witH PARTICULAR STATES.
72.
73.
74.
76.
77.
78.
The mode provided for the surrender of persons accused of the crimes
mentioned in Article I of the treaty with France of 1843 (Pub.
Trs., 247) is by requisition, made in the name of the respective
parties through the medium of their respective diplomatic agents.
The rule of evidence as to the commission of the crime is pre-
scribed in the treaty.
Formalities of extradition winder French treaty, 4 Op., 330, Nelson, (1844.)
The United States cannot demand extradition in the case of a breach
of trust in California, under the convention with France of 1843
for extradition, (Pub. Trs., 247,) which by the statute of that
State is made grand larceny. - -
Mr. Joseph's application, 7 Op., 643, Cushing, (1856.)
The term “public officers” in the treaty with France of 1843, (Pub.
TrS., 247.) or, as it stands in the French copy, “ dépositaires pub-
lics,” signifies officers or depositaries of the government only, and
does not comprehend officers of a railroad company, notwith-
* standing the latter, was authorized, and subventioned by the
French government. • * +
- - Extradition—Public officers, 8 Op., 106, Cushing, (1856.)
Under the extradition treaty with France of 1843, Art. 2, (Pub. Trs.,
248,) a public officer of the United States, who embezzles moneys
of the United States intrusted to his care, and flies from justice
to the territory of France, is liable to be removed to this country
for trial, such crime being here punishable with infamous punish-
ment. - -
Gilson's case, 12 Op., 326, Stambery, (1867.)
Under the nineteenth article of the treaty with France of 1778, (Pub.
Trs., 209, annulled by act of 1798, 1 Stat., 578,) a French privateer
has a right to make repairs in our ports. The replacement of her
force is not an augmentation. -
- t Moodie vs. The Ship Phoebe Anne, 3 Dallas, 319.
Condemnation of a prize, subject to an appeal, is not final, and SO
not definitive within the meaning of the fourth article of our
treaty with France of 1801. (Pub. Trs., 225, expired.)
United States vs. Schooner Peggy, 1 Cranch, 103.
The convention with France of 1800, (Pub. Trs., 244, expired by limit-
ation,) enabling people of one country holding lands in the other
to dispose of the same by testament or otherwise, and to inherit
lands in the respective countries without being obliged to obtain
letters of naturalization, rendered the performance of the condi-
tion required by the law of Maryland, to sell to a citizen within
ten years, a useless formality, and the conventional rule applied
equally to the case of those who took by descent under the act,
as to those who acquired by purchase Without its aid.
Chirac vs. Lessee of Chirac, 2 Wheaton, 259,
TREATIES WITH PARTICULAR STATES. 239
79. The further stipulation in the convention, “That in case the laws of
either of the two states should restrain strangers from the exer.
cise of the rights of property with respect to real estate, such real
estate may be sold, or otherwise disposed of, to citizens or inhab-
itants of the country where it may be,” was held not to affect the
right of a French subject, who takes or holds by the convention,
so as to deprive him of the power of selling to citizens of this
country; and it was held to give to a French subject, who had
acquired lands by descent, or devise, (and perhaps in any other
manner,) the right, during life, to sell or otherwise dispose thereof,
if lying in a state where lands purchased by an alien would be
immediately escheatable.
-- Ib.
80. Although the convention of 1800 has expired by its own limitation, -
yet the instant the descent was cast on a French subject during
its continuance, his rights became complete under it, and could
not be affected by its subsequent expiration.
- g Ib,
81. In the treaty of 1803 with France, (Pub. Trs, 232,) by which Lou-
isiana was acquired, the United States stipulated that the in-
habitants of the ceded territory should be protected in the free
enjoyment of their property. The United States, as a just nation,
regard this stipulation as the avowal of a principle which would
have been held equally sacred, though it had not been inserted
in the contract. - -
The term “property,” as applied to lands, comprehends every
Species of title inchoate or complete. It is supposed to embrace
those rights which lie in contract; those which are executory as
Well as those which are executed. . -
Soulard vs. United States, 4 Peters, 511.
Delassus vs. United States, 9 Peters, 117.
82. The stipulation in the treaty of cession of Louisiana for the protec-
tion of the inhabitants in their property, &c., ceased to operate
when that State was admitted into the Union. --
• City of New Orleans vs. Armas and Cucullu, 9 Peters, 223.
83. The treaty of cession of Louisiana to the United States (Pub. Trs,
232) could not enlarge the constitutional powers of the latter,
and those powers do not enable the United States to have or ex-
ercise that police control over public places in the State of Lou-
isiana which belonged to the Crown of France or of Spain.
New Orleans vs. United States, 10 Peters, 662, [737.]
24() TREATIES WITH PARTICULAR STATES.
84. Under the act of Congress constituting a board of commissioners to
85.
86.
87.
88.
89.
pass on claims provided for by the treaty with France of 1831,
(Pub. Trs., 245,) the decision of the board between conflicting
claimants is not conclusive, and the question of their respective
titles is fully open to be adjudicated by the courts.
Frevall vs. Bache, 14 Peters, 95.
Incomplete Spanish titles were not rendered complete by the treaty
by which Louisiana was acquired, (Pub. Trs., 232;) the Gov-
ernment of the United States succeeded to the powers and duties
of the Crown of Spain as to the confirmation of such titles, and
where there were two adverse claimants might select between
them, and make a perfect title to one and wholly exclude th
Other. u
- - Chouteau vs. Eckhart, 2 Howard, 344.
The treaty between the United States and France for the acqui-
sition of Louisiana (Pub. Trs., 232) confirmed titles as they
existed under the local law; and the decision of the supreme
court of Louisiana, upon a question of boundary of one of the
grants made before the treaty, cannot be considered as denying
a title claimed under a treaty, but only as applying that title,
whose existence is admitted, to the land. -
McDonogh vs. Millaudon, 3 Howard, 693.
The treaty of St. Ildefonso, between Spain and France, of the 1st of
October, 1800, deprived Spain of the power to make grants of land
in Louisiana, if not after its date, certainly after 21st March, 1801.
United States vs. Reynes, 9 Howard, 127.
The treaty of Paris ceding Louisiana to the United States (Pub.
Trs., 232) took effect on the day of its date, 30th April, 1803. Its
subsequent ratification and the formal transfer of possession have
relation to that date.
- Ib.
The laws of Louisiana impose a tax of ten per cent, on the value of
all property inherited in that State by any person not domicili-
ated there, and not being a citizen of any State or Territory of the
United States. 3.
In 1853 a treaty was made with France (Pub. Trs., 249) by
which Frenchmen were placed, as regards property, upon the
same footing as citizens of the United States in all the States of
the Union whose laws permit it. Held, that this treaty has no
effect upon the succession of a person who died in 1848.
Prevost vs. Greneaua, 19 Howard, 1.
TREATIES WITH PARTICULAR STATES. 241.
GREAT BRITAIN.
90. The term “prosecutions” employed in the sixth article of the treaty
of 1782 with Great Britain (Pub. Trs., 263) imports a suit against
another in a criminal cause; such prosecutions being conducted
in the name of the public, the ground of them being distinctly
known as soon as they are instituted, and being always under the
control of the Government.
Capt. Cochran's Case, 1 Op., 50, Bradford, (1794.)
91. The benefits of the 19th article of the treaty of 1778 with France
93
94
96
(Pub. Trs., 209, annulled by act of 1798, 1 Stat., 578) cannot be,
and never were intended to be, impaired by anything in our treaty
of 1794 with Great Britain, (Pub. Trs., 280, expired by limitation,)
and, therefore, the 24th article of the last-mentioned treaty may
be considered inoperative upon the question of the right of this
Government to permit the sale of a part of a prize cargo for the
necessary reparation of the ship.
Reparation of prize ships, 1 Op., 67, Lee, (1796.)
. The provisions of the 6th article of the treaty with Great Britain
of 1794 (Pub. Trs., 272) implies that public officers should furnish
copies of papers when demanded, and should assist in bringing
forward testimony according to the duties of their several stations;
and, also, that individuals should not refuse to give testimony. A
law ought to be passed to require these things to be done.
Obligations under treaty, 1 Op., 82, Lee, (1798.)
. By the 27th article of treaty of 1794, (Pub. Trs., 281,) a requisition
from the British minister is not authorized unless the persons
demanded are charged with murder or forgery, committed within
the territorial jurisdiction of Great Britain.
Case of Brigstock and others, 1 Op., 83, Lee, (1798.)
. Under the 23d article of the treaty with Great Britain of 1794, (Pub.
TrS., 280, expired by limitation,) as well as by the law of nations,
it is lawful to serve either a criminal or civil process upon a per-
Son on board a British man-of-war lying within our territory.
The Chesterfield, 1 Op., 87, Lee, (1799.)
. The provisions in the 3d article of the treaty with Great Britain of
1794, (Pub. Trs., 269,) relating to duties on goods and merchan
dise, cannot be extended to tonnage duties.
Duties under treaty of 1794, 1 Op., 155, Breckenridge, (1806.)
. The first article of the treaty of 1815, (Pub. Trs., 293,) providing for
mutual freedom and liberty of commerce, cannot be construed to
imply an obligation to protect the rights of foreign owners of
slaves brought to our shores as seamen.
Slaves on British vessels, 2 Op., 475, Taney, (1831.)
16
242 TREATIES WITH PARTICULAR STATEs.
97. A commissioner for the United States, appointed by the circuit court,
is a magistrate within the meaning of the treaty of article 10 of
treaty of Washington with Great Britain of 1842, (Pub. Trs., 320,)
and, as Such, has power to apprehend, examine, and certify as to
fugitives from justice. The necessary formalities and procedure
for extradition under the treaty considered.
Case of Christiana Cochrane, 4 Op., 201, Nelson, (1843.)
98. Under the second article of the treaty of 1794 with Great Britain,
(Pub. Trs., 269,) a British subject, held to have elected to
become a citizen of the United States by remaining therein, with-
out having declared his intention to continue to be a British sub-
ject, did not become, ipso facto, a citizen of the United States. He
could do so only by becoming naturalized in accordance with sec-
tion 2 of the act of 29th January, 1795. (1 Stat., 414.)
Porlier's case, 5 Op., 716, Appendia, Wirt, (1819.)
99. The Salary of the American commissioner appointed under the 6th
article of the treaty with Great Britain of 1853 (Pub. Trs., 329,)
commenced on his taking the oath of office, and he is entitled to
the cost of transportation to and from London.
Case of British and American commissioners, 6 Op., 65, Cushing, (1853.)
100. Larceny is not included in the causes for extradition stipulated be-
tween Great Britain and the United States by article 10 of the
treaty with Great Britain of 1842, (Pub. Trs., 320,) and the
United States should not ask for extradition in such a case as an
act of mere comity. e
Wing's case, 6 Op., 85, Cushing, (1853.)
101. Under the reciprocity treaty between the United States and Great
Britain of 1854, (Pub. Trs., 329,) the President cannot issue his proc-
lamation giving effect to the treaty as to Canada alone, in anticipa-
tion of the action of New Brunswick, Nova Scotia, and Prince
Edward's Island, nor until he shall have received evidence, not
only of the action of these provinces, but also of the Imperial
Parliament.
Reciprocity treaty with Great Britain, 6 Op., 748, Cushing, (1854.)
102. Under the tenth article of the treaty of 1842 with Great Britain,
(Pub. Trs., 320,) the expenses attending the proceedings in extra-
dition are to be borne by the demanding government.
- Heilbronn's case, 7 Op., 396, Cushing, (1855.)
103. There is nothing in the convention between the United States
and Great Britain of 1850 (Pub. Trs., 322) which forbids either
of the contracting parties to intervene, if either of them see fit,
by alliances, influence, or even by arms, in the affairs of Central
America. . g
The Clayton-Bulwer treaty, 8 Op., 436, Cushing, (1853.)
TREATIES WITH H PARTICULAR STATES. 243
104.
106.
107.
108.
109,
110.
Robbery on the lakes is piracy within the meaning of our extradi-
tion treaty with Great Britain of 1842. (Pub. Trs., 320.)
- Lake Erie pirates, 11 Op., 114, Bates, (1864.
. So much of article 30 of the treaty between the United States and
Great Britain of 1871, (Pub. Trs., 365,) called the treaty of Wash-
ington, as relates to the transportation of merchandise in British
vessels without payment of duty, from one port or place within
the territory of the United States, to another port or place within
the same territory, examined and construed.
Transportation in bond under treaty Washington, 14, Op., 310, Williams, (1873.)
The tenth article of the treaty of 1842 with Great Britain, (Pub. Trs.,
320,) does not forbid the trial of a fugitive when surrendered for
an offense other than that for which the surrender was made.
Iawrence's case, – Op., Phillips, acting, July, (1875.)
The practice and decisions in the United States and in Canada, and
the understanding of the executive and judicial authorities of
Great Britain, have all agreed that fugitives surrendered under
the treaty are surrendered absolutely, and may be tried for
offenses other than the particular offense for which they were surren-
dered.
Ib.
Debts due to British subjects before the war, though sequestered
or paid into the State treasuries, revived by the treaty of peace
of 1783, (Pub. Trs., 266,) and the creditors are entitled to recover.
Georgia v8. Brailsford, 3 Dalla8, 1.
The act of the legislature of Virginia of 1799, entitled “An act
concerning escheats and forfeitures from British subjects,” under
which a debtor to a subject of Great Britain, during the war, paid
over to the State authority a portion of the debt due, did not
protect the debtor from a suit for the debt after the treaty of
1783. (Pub. Trs., 266.)
Ware vs. Hylton, 3 Dalla8, 199.
The statute, if valid, was annulled by the treaty, and under the
fourth article suits for the recovery of debts due might be main-
tained, the provisions of the statute of Virginia to the contrary
notwithstanding. Ib
A debt due to a British subject not being barred by a statute of
limitations at the commencement of the war in 1775, the treaty of
peace with Great Britain of 1783 (Pub. Trs., 266) does not allow the
time previous to the war to be added to any time subsequent to
111.
the treaty in order to make a bar. - -
- Hopkirk v. Bell, 3 Cranch, 454, [458.]
244 TREATIES WITH PARTICULAR STATES.
112. Under article 18 of the treaty with Great Britain of 1794, (Pub. TrS.,
278,) an intention to enter a blockaded port is not cause for con-
demnation. -
Fitzsimmons vs. Newport Ins. Co., 4 Cranch, 185, [200.]
113. The Several States which compose the Union, so far at least as
regarded their municipal regulations, became entitled from the
time when they declared themselves independent to all the rights
and powers of Sovereign States, and did not derive them from
concessions of the British King.
The treaty of peace contains a recognition, not a grant, of the
independence of those States.
The laws of the several State governments passed after the
Declaration of Independence were the laws of sovereign States,
and as Such obligatory upon the people of each State.
McIlvaine v8. Coace's Lessee, 4 Cranch, 209.
114. Article 5 of the treaty of peace with Great Britain of 1783 (Pub.
TrS., 262) Saved the lien of a mortgage upon confiscated lands
Which at the time remained unsold. -
Higginson v. Mein, 4 Cranch, 415, [419. )
115. The “interest in lands by debts” intended to be protected by article
5 of the treaty of peace with Great Britain of 1783, (Pub. Trs.,
262,) must be an interest held as security for money at the time of
the treaty.
Owings vs. Norwood's Lessee, 5 Cranch, 344
116. The effect of the treaty of peace of 1783 with Great Britain, and of
treaty of 1794, (Pub. Trs., 266, 269,) in protecting titles of British
subjects to lands in Virginia considered.
Fairfax's Devisee v8. Hunter's Lessee, 7 Cranch, 603.
Craig vs. Bradford, 3 Wheaton, 594.
117. Under the 9th article of the treaty of 1794 with Great Britain,
(Pub. Trs., 269,) by which it is provided that British subjects
holding lands in the United States and their heirs, so far as
respects those lands, and the remedies incident thereto, should
not be considered as aliens, the parties must show that the title
to the land for which the suit was commenced was in them, or in
their ancestors, at the time the treaty was made.
It is not necessary to show seisin in fact, or actual possession.
The treatv applies to the title, whatever it is.
- -- Harden vs. Fisher, 1 Wheaton, 300.
Orr vs. Hodgson, 4 Wheaton, 453, [463.]
Hughes vs. Edwards, 9 Wheaton, 489, [496.]
118. Article 6 of the treaty of peace with Great Britain of 1783 (Pub.
Trs., 268) protected from forfeiture, by reason of alienage, lands
then held by British subjects.
Orr v8. Hodgson, 4 Wheaton, 453.
TREATIES WITH PARTICULAR STATES. 245
. Article 9 of the treaty of 1794, (Pub. Trs, 274,) under the word
heir, did not include any other than British subjects or American
citizens at the time of the descent cast.
* Ib.
, British subjects born before the Revolution are incapable of inher-
iting or transmitting lands in this country, save by force of some
treaty.
Both the treaty of peace with Great Britain of 1783 (Pub. Trs.,
266) and the treaty of 1794 (Pub. Trs., 269) provided only for
titles then existing.
Blight's Lessee vs. Rochester, 7 Wheaton, 535.
. Effect of the treaty of 1783 with Great Britain, (Pub. Trs., 266,) and
treaty of 1795 with Spain, (Pub. Trs., 704,) as to lands occupied
by Indians.
Johnson and Graham's Lessee v8. McIntosh, 8 Wheaton, 543.
. The property of British corporations in this country is protected by
the 6th article of the treaty of peace of 1783 (Pub. Trs., 266)
in the same manner as the property of natural persons, and the
title thus protected is confirmed by the 9th article of the treaty
of 1794, (Pub. Trs., 274,) so that it could not be forfeited by any
intermediate legislative act or other proceeding for the defect
of alienage.
Society for Propagating the Gospel, &c., vs. New Haven, 8 Wheaton, 464.
. The United States acquired no new rights of soil or sovereignty
by the treaty of peace with Great Britain after the Revolution.
(Pub. Trs., 266.) The treaty of peace operated only as an acknowl-
edgment of existing rights, and on that principle the soil and sove-
reignty, within the acknowledged limits of the United States, were
as much theirs at the Declaration of Independence as at the ex-
ecution of the treaty.
Harcourt vs. Gaillard, 12 Wheaton, 523, [529.]
All British-born subjects who have never renounced allegiance to
Great Britain ought, on general principles of interpretation, to be
held to be within the intent, as they certainly are within the
words, of the treaty of 1794. (Pub. Trs., 269.) *
Shanks vs. Dupont, 3 Peters, 242, [250.]
125. The treaty of 1783 (Pub. Trs., 266) acted upon the actual state of
things as it existed at that period. All those, whether natives
or otherwise, who adhered to the American States were virtually
:absolved from all allegiance to the British Crown. All who ad-
hered to the Crown were deemed and held subjects of the Crown.
- Ib., [254.]
246 TREATIES WITH PARTICULAR STATES.
126. Lands granted by the acts of March 3, 1807, (2 Stat., 437,) in fulfill-
ment of the second article of the treaty of 1794, (Pub. Trs., 270,)
were not donations.
Forsyth vs. Reynolds, 15 Howard, 358.
127. By the treaty of 1783 (Pub. Trs., 266) the United States succeeded
to all the rights of the King of France in that part of Canada
which forms the State of Michigan, prior to its conquest in 1750.
United States vs. Repentigny, 5 Wallace, 211.
128. Under the treaty with Great Britain of 1842, (Pub. Trs., 320,) and
the acts of Congress for carrying into effect its stipulations, no
authority is required from the executive department of the United
States to enable a judge, magistrate, or commissioner to issue a
warrant for the arrest of an alleged fugitive from justice.
§ Ea: parte Ross, 2 Bond, 252.
129. The convention of 1854 for mutual reciprocity of trade with Can-
ada, (Pub. Trs., 329, terminated by notice,) did not operate to re-
lease a forfeiture previously incurred.
Pine lumber, 4 Blatchford, 182.
130. Where a criminal is surrendered under the treaty of 1842 (Pub.
Trs., 320) for a particular offense, he is not thereby protected from
trial for an offense other than the offense for which he was sur-
rendered. -
Caldwell's cage, 8 Blatchford, 131.
Lawrence's case, circuit court Southern district N. Y., March, 1876.
131. No special act of Congress is necessary to carry into effect the
tenth article of the treaty of 1842 with Great Britain, (Pub. Trs.
320,) and a portion of a British crew may be arrested and surren-
dered without legislation to carry out the treaty.
Case of the British prisoners, 1 Woodbury & Minot, 66.
132. There is nothing in the treaties with Great Britain which accords
to a British merchant resident in a port in the seceded States,
during the war, an immunity from the general principles of public
law applicable to resident neutral merchants.
The Sarah Starr, Blatchford's Prize Cases, 69.
133. A case arising upon the construction of the decision of the com-
missioners under the fourth article of the treaty of Ghent. (Pub.
Trs., 288.) The small island called Pope's Folly, in the bay of
Passamaquoddy, is within the jurisdiction of the United States.
An open boat and cargo, Ware's Rep., 26.
134. By article 3 of the convention with Great Britain of 1818, (Pub.
Trs., 297,) it was agreed that the Oregon territory should “be
free and open to the vessels, citizens, and subjects of the two
TREATIES WITH PARTICULAR STATES. 247
powers,” which convention was continued in force until the con-
vention of 1846, (Pub. Trs., 320:) Held, That during the period
of such joint occupation, the country, as to British subjects therein,
was British soil, and subject to the jurisdiction of the King of
Great Britain; but, as to citizens of the United States, it was
American soil, and subject to the jurisdiction of the United States;
and that a child born in such territory in 1823, of British subjects,
was born in the allegiance of the King of Great Britain, and not
in that of the United States.
McKay vs. Campbell, 2 Sawyer, 118.
HAINSEATIC REPUBLIC.
135. Under article 9 of the treaty with the Hanseatic Republics of 1827
(Pub. Trs., 402,) together with article 4 of the treaty with Bel-
gium of 1858, (Pub. Trs., 53,) steam-vessels of Breinen, plying
regularly between that port and the United States, have, during
the entire period subsequent to the date of the ratification of said
treaty with Belgium, been exempt from tonnage-tax in American
ports, by force of article 9 of said treaty with the Hanseatic Re-
publics, and are entitled to a refund of any such tax which has
been collected from such vessels in American ports at any time
within that period.
North German Lloyd Steamship Company, 14 Op., 530, Williams, (1875.)
ITALY.
136. Under the convention between the United States and Italy of 1868,
(Pub. TrS., 436,) a person may be surrendered for the crime of
murder committed before the making of the convention.
In re Angelo de Giacomo, 12 Blatchford, 391.
JAPAN.
137. A United States consular court in Japan cannot, under the treaty of
1858 with that country, (Pub. Trs., 452,) and the laws of the
United States, (12 Stat., 72; R. S., § 4083,) render a judgment
against a person of foreign birth not a citizen of the United
States. -
Consular courts in Japan, 11 Op., 474, Speed, (1866.)
MEXICO.
138. The Mesilla treaty with the Mexican Republic (Pub. Trs., 503)
COnStrued.
Construction of the Mesilla treaty, 7 Op., 582, Cushing, (1855.)
139. The question whether the United States will pay, according to their
original tenor, drafts drawn by the Mexican government, under
the Mesilla convention, or suspend the payment at the subsequent
request of that government, is matter of political, not of legal, de-
termination. *
Drafts under Mesilla treaty, 7 Op., 599, Cushing, (1855.)
248 TREATIES WITH PARTICULAR STATES.
140. The treaty of Guadalupe IHidalgo (Pub. Trs., 492) provides for
those Mexicans who inhabited territory ceded to the United States,
but had no relation to Texas. -
McKinney v3. Saviego, 18 Howard, 235.
141. The United States have never sought by their legislation to evade
the obligation devolved upon them by the treaty of Guadalupe
Hidalgo to protect the rights of property of the inhabitants of
the ceded territory or to discharge it in a narrow and illiberal
manner. They have directed their tribunals in passing upon the
rights of the inhabitants to be governed by the stipulations of the
treaty, the law of nations, the laws, usages, and customs of the
former government, the principles of equity, and the decisions of
the Supreme Court, so far as they are applicable.
* - United States v8, Angwisola, 1 Wallace, 352, [358.]
142. The cession of California to the United States did not impair the
rights of private property. These rights were consecrated by the
law of nations and protected by the treaty of Guadalupe Hidalgo.
United States vs. Moreno, 1 Wallace, 400.
143. Article 7 of the treaty of 1848, between the United States and
Mexico, (Pub. Trs., 492,) stipulated that the navigation of the
river Bravo (otherwise called the Rio Grande) should be free and
common to the citizens of both countries, without interruption by
either without the consent of the other, even for the purpose of
improving the navigation. Nothing short of an express declara-
tion by the Executive would warrant a court in ascribing to the
Government an intention to blockade such a river in time of peace
between the two republics.
The Peterhoff, 5 Wallace, 51.
144. The treaty of Guadalupe Hidalgo between the United States and
Mexico (Pub. Trs., 492) makes no distinction, in the protection it
provides, between the property of individuals and the property
held by towns under the Mexican government.
Townsend v3, Greeley, 5 Wallace, 326.
145. The protection which by the treaty of Guadalupe Hidalgo the
United States promised to Mexican grantees extended to rights
which they then held.
IIenshaw vs. Bissell, 18 Wallace, 264.
NETHERLANDS.
146. It seems there is no treaty stipulation between the United States and
the Netherlands on the subject of the rights by inheritance of
the children of a deceased child of a Netherlander dying intes-
tate in the United States. Article 6 of the treaty of 1782 (Pub.
Trs, 533) relates only to personalty.
Inheritance by alien Netherlanders, 12 Op., 5, Stanbery, (1866.)
TREATIES WITH PARTICULAR STATES. 249
\
NEW GRANADA.
147. The words of the treaty with New Granada (of 1846, Pub. Trs.,
550) are not the test by which to determine what is or what is not
within the true limits of the Isthmus of Panama, with reference
to the exclusive right of a company to make a railroad across
that isthmus. The act of the New Granadian government con-
ceding such exclusive right must be construed so as to give such
company that right within the true geographical boundaries of
the isthmus named.
The Chiriqui Co., 9 Op., 391, Black, (1859.)
148. The 35th article of the treaty of 1846 with New Granada (Pub.
TrS., 558) binds this Government absolutely to guarantee the per-
fect neutrality of the Isthmus of Panama, on the demand of the
proper party; and this obligation must be performed by any and
all means which may be found lawful and expedient.
Neutrality of the Isthmus, 11 Op., 67, Bates, (1864.)
149, Article 35 of the treaty of 1846 with New Granada (Pub. Trs, 558)
does not oblige this Government to protect the Isthmus of Pan-
ama from invasion by a body of insurgents from the United States of
Colombia. -
Isthmus of Panama, 11 Op., 391, Speed, (1865.)
150. The claim of R. W. Gibbes having been duly referred to the commis-
sioners under the convention with New Granada of 1857, (Pub.
Trs., 564,) and submitted to the umpire, who reported an award
during the existence of the commission, and payment having been
suspended by request of the Secretary of State, and the case hav-
ing been afterward referred, without the claimant's consent, to
the commission under the convention with Colombia of 1864,
(Pub. Trs., 158,) as the representative of the late republic of New
Granada: Held, that, by the submission of this claim to the lat-
ter commission in the manner stated, the claimant was not di-
vested of his rights against New Granada under the award of the
umpire aforesaid.
Claim of R. W. Gibbes, 13 Op., 19, Hoar, (1869.)
151. The award not having been vacated, opened, or set aside during
the life-time of the former commission, and the claimant having
done nothing since to waive his rights thereunder, it should be
treated by our Government as a valid and conclusive ascertain-
ment of his claim against New Granada.
Ib.
152. The passenger-tax of two dollars per head levied in 1849 and sub-
sequent years by the state of Panama, a province of New Granada,
250 TREATIES WITH PARTICULAR STATES.
under authority from that republic, upon the captains of all ves.
Sels embarking or disembarking passengers in that state, was in
substance and effect, so far as it affected citizens of the United
States passing across the Isthmus of Panama, a violation of the
35th article of the treaty with New Granada of 1846. (Pub.
Trs., 558.)
Panama transit-tax, 13 Op., 547, Akerman, (1871.
NORTH GERMAN CONFEDERATION.
153. A citizen of the North German Confederation who becomes a nat-
uralized citizen of the United States must have had an uninter-
rupted residence of five years in the United States before he is
entitled to the immunities guaranteed by the treaty with the
confederation of 1868. (Pub. Trs, 575.) The recital contained in
the record of the naturalization proceedings that he had resided
continuously in this country for more than five years is not con-
clusive as to the fact so recited. -
Case of Moses Sterm, 13 Op., 376, Akerman, (1871.)
154. A Prussian subject by birth emigrated to the United States in
1848, became naturalized in 1854, and in the following year had a
son born in Saint Louis, Mo. Four years after the birth of his
son he returned to Germany with his family, including this infant
child, and became domiciled at Wiesbaden, in Nassau, where he
has continuously resided. In 1866 Nassau became incorporated
into the North German Confederation. When the son reached
the age of 20 years he was called upon by the German govern-
ment to report for military duty. Thereupon the intervention of
the legation of the United States was invoked on the ground
that the Son was a native American citizen.
Article 6 of the naturalization treaty of 1868, between the North
German Union and the United States, (Pub. Trs, 575,) provides
that “if a German, naturalized in America, renews his residence
in North Germany, without the intent to return to America, he
shall be held to have renounced his naturalization in the United
States. * * * The intent not to return may be held to exist
when the person naturalized in the one country resides more than
two years in the other country.”
Under this treaty, and according to the American rule declared
in section 1999 of the Revised Statutes, the father renounced his
naturalization in America and became a German subject. By
virtue of the German laws, his son, being a minor, also acquired
German nationality. Having at the same time an American
nationality, he thus had a double nationality.
Being domiciled with his father, and being, as a minor, Subject
to him, according to both German and American law, and receiv-
TREATIES WITH PARTICULAR STATES. 251
ing German protection, and declining to give any assurance of
intention to return to and reside in the United States, the son
cannot now invoke the aid of the Government of the United
States. But, when he reaches the age of twenty-one years, he
may elect whether he will return to and take the nationality of
his birth, with its duties and privileges, or retain the nationality
acquired by the act of his father. No act of his father can
have the effect, under the treaty, to deprive him of his nationality
by birth. -
Steinkauler's case, – Op., Pierrepont, June 26, (1875.)
OTTOMAN EMPIRE.
155. The act of Congress of 1848 (9 Stat., 276, 468, superseded) to carry
into effect certain provisions in the treaties between the United
States and the Ottoman Porte, (Pub. Trs., 583,) giving certain
judicial powers to ministers and consuls not having designated a
particular place for the confinement of prisoners, the same is left
for regulation under section five of the act, or to the discretion
of the acting functionary.
* Mr. Carr’s inquiries, 5 Op., 67, Towcey, (1849.)
156. The provisions of the 18th section do not apply to Turkey.
Ib.
157. Citizens of the United States by virtue of the provisions of the
treaty of 1830 with the Ottoman Empire, (Pub. Trs, 583,) enjoy
in common with all other Christians the privilege of exterrito-
riality in Turkey, including Egypt, in the Turkish regencies of
Tripoli and Tunis, and in the independent Arabic states of Mo-
rocco and Muscat. -
- Americans in Turkey, 7 Op., 565, Cushing, (1855.)
158. The treaty between the United States and the Ottoman Empire,
concluded June 5, 1862, (Pub. Trs., 585,) if not that made in 1830,
(Pub. Trs., 583,) has the effect of conceding to the United States
the same privilege, in respect to consular courts and the civil
and criminal jurisdiction thereof, which is enjoyed by other
Christian nations; and the act of Congress of June 22, 1860, es-
tablished the necessary regulations for the exercise of such juris-
diction. But, as this jurisdiction is, in terms, only such as is
allowed by the laws of Turkey, and its usages in its intercourse
with other nations, those laws or usages must be shown in order
that the precise extent of such jurisdiction may be known.
Dainese vs. Hale, 91 U. S. R., S. C., 13.
[See, however, act of March 23, 1874, (18 Stat., 23,) authorizing
the President to accept the jurisdiction of certain mixed tribunals,
and the proclamation thereon of March 27, 1876.]
252 TREATIES WITH PARTICULAR STATES.
PERU.
159. Under the treaty of 1851 with Peru (Pub. Trs., 612) the United
States are not bound to pay a consul of the Peruvian government
the value of property belonging to a deceased Peruvian, on whose
estate the consul was entitled to administer, which may have
been unjustly detained and administered by a local public admin-
istrator.
Verjel’s case, 9 Op., 383, Black, (1859.)
160. An award under the convention with Peru of 1863, (Pub. Trs.,
628,) “payable in current money of the United States,” may
legally be paid in Treasury notes or in specie.
Payments winder treaties, 11 Op., 52, Bates, (1864.)
PORTUGAL.
161. The second article of the treaty with Portugal, of 1840, (Pub. Trs.,
634,) did not restrict either party from laying discriminating
duties on merchandise not the growth or production of the nation
of the vessel carrying the same into the port of the other nation,
and the provision in schedule I of the tariff act of 30 July, 1846,
(9 Stat., 49,) exempting tea and coffee from duty, when imported
direct from the place of their growth or production in American
vessels, or in foreign vessels entitled by reciprocating treaties to
be exempt from discriminating duties, tonnage, and other charges,
does not apply to such articles when imported in Portuguese
Vessels.
Oldfield vs. Marriott, 10 Howard, 146.
PRUSSIA.
162. Under the treaty with Prussia, of 1852, (Pub. Trs., 660,) the forging
of checks on the communal chest of Breslau constitutes one of
the crimes for which the mutual extradition of fugitives from
justice is stipulated.
Richard Sachs’s case, 6 Op., 761, Cushing, (1854.)
163. The provisions of the treaty of 1828, (Pub. Trs, 656,) between the
United States and Prussia, for the arrest and imprisonment of
deserters from public ships and merchant vessels of the respective
countries, applies to public vessels sailing under the flag of the
North German Union, and deserters from such vessels.
Deserters from the “Niobe,” 12 Op., 463, Evarts, (1868.)
64. A crime committed by a Prussian subject in Belgium, although
justiciable in Prussia, does not come within the provisions of the
treaty between the United States and Prussia of 1852 (Pub. Trs.,
660) for the delivery up of persons who, being charged with cer-
tain crimes “committed within the jurisdiction of either party,”
shall be found within the territories of the other.
Carl Vogt's case, 14 Op., 281, Williams, (1873.)
TREATIES WITH PARTICULAR STATES. 253
165. Unless treaty stipulations provide otherwise, a merchant-vessel of
one country visiting the ports of another for the purpose of trade
is, so long as she remains, subject to the laws which govern them.
United States vs. Diekelman, 92 U. S. R., S. C., 520.
166. Where, in time of war, a foreign vessel, availing herself of a proc-
lamation of the President of May 12, 1862, entered the port of
New Orleans, the blockade of which was not removed, but only
relaxed in the interests of commerce, she thereby assented to the
conditions imposed by the proclamation that she should not take
out goods contraband of war, nor depart until cleared by the
collector of customs according to law.
Ib.
167. Where the detention of the vessel in port was caused by her resist-
ance to the orders of the properly-constituted authorities, whom
she was bound to obey, she preferring such detention to a clear-
ance upon the conditions imposed: Held, that her owner, a sub-
ject of Prussia, is not entitled to any damages against the United
States, under the law of nations or the treaty with that power
of 1799, (Pub. Trs., 648, and Treaty of 1828, id., 656.)
I b.
168. Article 10 of the treaty with Prussia of 1828 (Pub. Trs., 658) pro-
vides that the consuls, vice-consuls, and commercial agents of
each party “shall have the right, as such, to sit as judges and
arbitrators in such differences as may arise between the captains . .
and crews of the vessels belonging to the nation whose interests
are committed to their charge, without the interference of the
local authorities,” subject to the right of the contending parties
“to resort, on their return, to the judicial authority of their coun-
try,” and to the right of the consuls, vice-consuls, and commer-
cial agents to require the assistance of the local authorities “to
Cause their decisions to be carried into effect or supported.” The
crew of a Prussian vessel sued in rem, in admiralty, in the
district court, to recover wages alleged to be due to them. The
master of the vessel answered, denying the debt, invoking the
protection of Said treaty, denying the jurisdiction of the court,
and averring that the claim for wages had already been adjudi-
cated by the Prussian consul at New York. The consul also pro-
tested formally to the court against the exercise of its jurisdic-
tion. The case was tried in the district court, and it appeared
that the consul had adjudicated on the claim for wages. The
district court decreed in favor of the libellants: Held, that the
district court had no jurisdiction of the case. J
The Elwine Kreplin, 9 Blatchford, 438.
254 TREATIES WITH PARTICULAR STATES.
RUSSIA.
169. The rights of Hutchinson, Kohl & Co., as purchasers of certain
buildings in Alaska from the Russian-American Company, con-
sidered.
The use of the lands on which the buildings stood, once allowed
to the Russian-American Company, was extinguished by the
treaty of 1867, (Pub. Trs., 671,) and did not pass to EIutchinson,
Kohl & Co.
Case of Hutchinson, Kohl & Co., 14 Op., 302, Williams, (1873.)
170. Although article 6 of the treaty with Russia of 1832 (Pub. Trs., 666)
stipulated that no higher duties should be imposed on goods im-
ported from Russia than on like articles imported from other
places, if Congress has imposed a different duty upon Russian
hemp, the law must be enforced.
- Taylor vs. Morton, 2 Curtis, 454.
171. Congress may pass any law, otherwise constitutional, nowithstand-
ing it conflicts with an existing treaty with a foreign nation.
If an act of Congress is plainly in such conflict, a court cannot
inquire whether, in passing such act, Congress had or had not an
intention to pass a law inconsistent with the provisions of the
treaty. -
\\ Itopes vs. Clinch, 8 Blatchford, 304.
172. Modes specified in which Congress may destroy the operative
force of a treaty.
t Ib.
173. It being provided by article 6 of the treaty between the United
States and Russia, of 1832, (Pub. Trs., 667,) that no higher duties
shall be imposed on the importation into the United States of any
article the produce or manufacture of Russia than are or shall
be payable on the like article being the produce or manufacture of
any other foreign country, and Congress having, by section 1 of act
1861, (12 Stat., 292,) imposed a duty on unmanufactured Russian
hemp of forty dollars per ton, and on manila and other hemps of
India of twenty-five dollars per ton, such legislation is a declara-
tion by Congress that such provision of the treaty shall no longer
operate as the law of the land in respect to the duty on unmanu-
factured Russia hemp. Ib
SPAIN. -
174. The 20th article of the treaty with Spain of 1795 (Pub. Trs., 709)
does not extend the jurisdiction of our courts to offenses committed
in Spain nor vice versa, and according to the common law, the com-
mandant of the island of Amelia is not liable to any public pros-
ecution before any of our courts for his transactions in Florida.
- Icosa's case, 1 Op., 68, Lee, (1797.)
TREATIES WITH PARTICULAR STATES. 255
175. A Spanish grant made December 2, 1820, was made in violation of
the 8th article of the treaty of 1819. (Pub. Trs, 714.)
Arredondo's case, 2 Op., 191, Wirt, (1829.)
176. Certain slaves were shipped by their Spanish owners from Havana.
to Pensacola in an American vessel in violation of the laws of the
United States. The vessel was captured by the American mili-
tary force then occupying Fort Barrancas. Afterward, while pro-
ceeding to adjudication, the slaves and vessel were seized by a
revenue vessel and carried into the port of Mobile. The vessel
and cargo were condemned, but restitution of the slaves was
awarded, because the original capture was not made by a “commis-
Sioned vessel of the United States.” The original capture being
lawful, and the slaves though restored being on board unlaw-
fully, the Spanish owners have no claim as for an “injury” under
the treaty with Spain of 1819. (Pub. Trs., 715.)
t Case of Spanish slaves, 2 Op., 198, Berrien, (1829.)
177. The Department of State was made the depository, by stipulation,
of the records and papers referred to in article 11 of the treaty
with Spain of 1819, (Pub. Trs, 716,) and they must not be deliv-
ered up to the claimants; and any law of Congress that shall
authorize or require their delivery will be a violation of that treaty.
Depository of records, 2 Op., 515, Taney, (1832.)
178. A Spanish vessel having cleared from one Spanish port bound to
another, with regular papers and a cargo of merchandise and slaves,
and while at sea, being subjected to the control of the negroes on
board, by their rising upon the whites and killing the captain, his
servant, and two of his seamen, who assuming command with a
view to carry the vessel to the coast of Africa, but failing in that
object, through the contrivance of two white, Spaniards, ran
her near to the coast of the United States, where she was taken
by a vessel of the United States, and sent into New London for
examination and such proceedings as the law of nations warranted
and required; and the vessel being demanded, with the negroes,
by the Spanish minister, under the ninth article of the treaty with
Spain of 1795, (Pub. Trs., 704:) Held, that the case is within said
ninth article, and that the vessel and cargo should be restored to
the owners, as far as practicable, entire.
The Amistaël, 3 Op., 484, Grundy, (1839.)
179. The President is advised to issue his order to the marshal in whose
custody the vessel and cargo are, to deliver the same to such
persons as may be designated by the Spanish minister to receive
them.
Ib.
256
TREATIES WITH PARTICULAR STATES.
180.
181.
182.
183.
184.
186,
The power of the Secretary of the Treasury and the necessary
proceedings to establish claims under the ninth article of the
treaty between the United States and Spain of 1819, (Pub. Trs,
714,) considered at length. -
i Florida Claims, 6 Op., 533, Cushing, (1854.)
The extraordinary expenses of a party, incurred in living at St.
Mary’s, whither he retired after the destruction of his property in
Florida, are matters too remotely consequential to be the proper
subject of damages under article 9 of the treaty of 1819 between
the United States and Spain. (Pub. Trs., 715.)
Case of a Spanish claimant, 6 Op., 530, Cushing, (1854.)
Under the treaty with Spain of 1819, (Pub. Trs., 716,) and the act
of 1829, (4 Stat., 359; R. S., § 5280,) the apprehension and delivery
of a seaman, who is alleged to be a deserter from a Spanish ship,
is a judicial duty, and the State Department cannot change what
a judge has done. -
Manuel Castro's case, 9 Op., 96 Black, (1857.)
The annual installments of interest due to the United States under
the convention with Spain of 1834, (Pub. Trs., 718,) may, by Vir-
tue of the act of 1862, (12 Stat., 345; R. S., § 3588,) be paid in
Treasury notes, if the Spanish government chooses to offer them in
payment, there being no express provision in the convention that
the money shall be paid in coin.
Interest on Spanish indemnity, 13 Op., 85, Hoar, (1869.)
Article 15 of the treaty of 1795, between the United States and
Spain, (Pub. Trs., 704,) provides that neutral bottoms shall make
heutral. goods, but contains no stipulation that enemy bottoms
shall communicate hostile character to the cargo. The latter is
not to be implied from the insertion of the former rule.
The Nereide, 9 Cranch, 388.
. Under the treaty with Spain of 1795, (Pub. Trs., 704,) stipulating
that free ships shall make free goods, the want of such a sea-letter
or passport, or such certificates as are described in article 17, is
not a substantive ground of condemnation. It only authorizes
capture and sending in for adjudication, and the proprietary in-
terest in the ship may be proved by other equivalent testimony.
The Pizarro, 2 Wheaton, 227.
The term “subjects,” in article 15, when applied to persons owing
allegiance to Spain, must be construed in the same sense as the
term “citizens” or “inhabitants” when applied to persons owing
allegiance to the United States, and extends to all persons domi-
ciled in the Spanish dominions. Ib
TREATIES WITH PARTICULAR STATES. 257
187. The capture of a Spanish vessel and cargo, made by a privateer
commissioned by the province of Carthagena while it had an Or-
ganized government and was at war with Spain, cannot be inter-
fered with by the courts of the United States. The treaty with
Spain of 1795, article 9, (Pub. Trs., 706) applies to only two cases,
piracy and captures in violation of our neutrality, and this is
neither of those cases. e
The Nuestra Señora de la Caridad, 4 Wheaton, 497.
188. Article 17 of the treaty with Spain of 1795, (Pub. Trs., 709,) so far
as it purports to give any effect to passports, is imperfect and in-
operative, in consequence of the omission to annex the form of
passport to the treaty. -
- - The Amiable Isabella, 6 Wheaton, 1.
189. By the treaty with Spain of 1795, (Pub. Trs., 704,) free ships make
free goods; but the form of the passport by which the freedom
of the ship was to have been conclusively established never having
been annexed to the treaty, the proprietary interest of the ship
is to be proved according to the ordinary rules of the prize-court,
and if thus shown to be Spanish, will protect the cargo on board,
to whomsoever the latter may belong. Ib.
[NOTE.-The form of passport referred to in article 17 of the
treaty of 1795, is not annexed either to the original treaty signed
by the negotiators, or to the copy bearing the ratification of the
Ring of Spain on file in the Department of State. It is remarkable,
however, that to the Spanish version, appearing in vol. 2, p. 429,
of “Coleccion de los Tratados de Paz,” &c., published at Madrid
in 1800, two forms of passports in Spanish are annexed—one for
ships navigating European seas, and the otherfor those navigating
American seas. These forms are found in 6 Wheaton, 97. No
explanation has been discovered of these facts. It is stated, how-
ever, in a letter from Jacob Wagner to Mr. Monroe, dated Novem-
ber 3, 1814, that a form was agreed on.]
190. Articles 6 and 14 of the treaty with Spain of 1795, (Pub. Trs, 704,)
prohibit a citizen of the United States from taking a commis-
Sion to cruise against Spanish vessels and property in a privateer,
but not in a public armed vessel of a belligerent nation.
The Santissima Trinidad, 7 Wheaton, 283.
191. Under the treaty with Spain of 1819, (Pub. Trs, 712,) the commis.
Sioner had power to decide conclusively upon the amount and
Validity of claims, but not upon the conflicting rights of parties
to the sums awarded by them. -
17 Comegys vs. Vasse, 1 Peters, 193.
TREATIES WITH PARTICULAR STATES.
193.
194.
196.
197.
198.
\
. The treaty with Spain, (Pub. Trs., 712,) ceding Florida to the United
States, is the law of the land, and admits the inhabitants of Flor-
ida to the enjoyment of the privileges, rights, and immunities of
citizens of the United States. They do not participate, however,
in political power until Florida shall become a State.
American Insurance Company vs. Canter, 1 Peters, 511, [542.]
All the laws in force in Florida while a province of Spain, ex-
cepting those of a political character, which concerned the rela-
tions between the people and their sovereign, remained in force
until altered by the Government of the United States.
Ib., [544.]
Article 8 of the treaty with Spain of 1819, (Pub. Trs., 712,) taken
in connection with article 2, and with the explanatory declaration
made by the King of Spain when he ratified the treaty, (Pub.
Trs., 717,) does not provide for grants made by the Spanish
authorities between the rivers Iberville and Perdido.
Foster vs. Neilson, 2 Peters, 253.
. Though a treaty is the law of the land, and its provisions must be
regarded by courts as equivalent to an act of the legislature when
it operates directly on a subject, yet, if it be merely a stipulation
for future legislation by Congress, it addresses itself to the polit-
ical and not to the judicial department, and the latter must await
the action of the former.
} Ib.
The eighth article of the said treaty with Spain does not proprio
wigore confirm grants; it was reserved for Congress to act and
execute it - *
Ib.
By article 8 of the treaty with Spain of 1819 (Pub. Trs., 714) the
lands theretofore completely granted by the King were excepted
out of the grant to the United States. The original of that treaty
in the Spanish language not corresponding precisely with the
original in English, the language of the former is to be taken as
expressing the intent of the grantor as to the lands granted and
reserved. The words “in possession of the lands,” in article 8,
do not require actual occupancy; they are satisfied by that con-
structive possession, which is attributed by the law to legal own-
ership. -
United States vs. Arredondo, 6 Peters, 691, [741, 742.]
Under article 8 of the treaty with Spain of 1819 (Pub. Trs., 714)
the title to lands which had been granted by the King of Spain
was confirmed by force of the instrument itself.
- United States vs. Percheman, 7 Peters, 51.
TREATIES WITH PARTICULAR STATES. 259
199. The validity of concessions of lands, conditional as well as abso-
lute, made by the authorities of Spain in East Florida, is ex-
pressly recognized in the treaty of cession. (Pub. Trs., 712.)
. United States vs. Clarke, 9 Peters, 168.
200. A treaty of cession is a deed or grant by one sovereign to another,
which transfers nothing to which he had no right of property,
and only such right as he owned and could convey to the grantee.
By the treaty with Spain of 1819 (Pub. Trs., 712) the United
States acquired no lands in Florida to which any person had
lawfully obtained such a right by a perfect or inchoate title, that
this court could consider it as properly under the second article,
or which had, according to the stipulations of the eighth, been
granted by the lawful authorities of the Ring; which words, grants,
or concessions were to be construed in their broadest sense, so
as to comprehend all lawful acts which operated to transfer a right
of property, perfect or imperfect. -
Mitchell vs. United States, 9 Peters, 734.
201. Results of former adjudications upon Spanish grants, as governed
by the treaty with Spain of 1819 (Pub. Trs, 732,) stated.
Ib.
202. The practice and usage of the government officers of Spain in
relation to title-papers of grants made by Spanish authority in
East Florida may be proved by parol.
The originals being kept in a public office, and certified copies
furnished to grantees, these copies are evidence.
United States vs. Wiggins, 14 Peters, 334.
203. An official certificate of the secretary of the Spanish government
of East Florida is evidence of the title-papers, the original of
which were kept in the public archives. º
United States vs. Rodman, 15 Peters, 130.
204. An official certificate of the secretary of the Spanish government
of East Florida is evidence of the genuineness of a copy of a
grant.
United States vs. Delespine, 15 Peters, 226.
205. Under article 9 of the treaty with Spain of 1819, (Pub. Trs, 714,)
providing for the restoration of property rescued from pirates and
robbers on the high seas, it is necessary to show (1) that what
is claimed falls within the description of vessel or merchandise;
(2) that it has been rescued on the high seas from pirates and
robbers; (3) that the asserted proprietors are the true proprietors,
and have established their title by competent proof.
United States vs. The Amistad, 15 Peters, 518.
260 TREATIES WITH PARTICULAR STATES.
206. That Spain had power to make grants, founded on any considera-
-- tion, and subject to any restrictions within her discretion, is a
settled question. If the act was binding on that government, SO
it is on this, as the successor of Spain. All the grants of land
made by the lawful authorities of the King of Spain before the
24th of January, 1818, were by the treaty ratified and confirmed
to the owners of the lands. Such is the construction given to the
eighth article by this court in Arredondo's case, 6 Peters, 706,
and in Percheman's case, 7 Peters, 51; that is, imperfect titles
were equally binding on this government after the cession, as
they had been on the Spanish government before.
- United States vs. Heirs of Clarke and Atkinson, 16 Peters, 231,232.
207. The original of a grant of land by the Spanish governor of East
Florida not being found in the proper depository, a copy certi-
fied by the secretary of the Spanish government was held admis-
sible. -
United States vs. Acosta, 1 Howard, 24.
208. It is the settled doctrine of the judicial department of the Govern-
ment that the treaty with Spain of 1819 (Pub. Trs., 714) ceded
no territory west of the Perdido River. &
Pollard's Lessee vs. Files, 2 Howard, 591, [602.]
209. It cannot be admitted that the King of Spain could, by treaty or .
otherwise, impart to the United States any of his royal preroga-
tives; and much less can it be admitted that they have capacity
to receive or power to exercise them. Every nation acquiring
territory, by treaty or otherwise, must hold it subject to the con-
stitution and laws of its own government, and not according to
those of the government ceding it. -
Pollard's Lessee vs. Hagan, 3 Howard, 225.
210, The United States have never claimed any part of the territory
included in the States of Mississippi or Alabama under any
treaty with Spain, although she claimed at different periods a
considerable portion of the territory in both of those States. By
the treaty between the United States and Spain, signed at San
Lorenzo el Real, on the 27th of October, 1795, (Pub. Trs., 704,)
the high contracting parties declare and agree that the line
between the United States and East and West Florida shall be
designated by a line beginning on the Mississippi River at the
northernmost part of the thirty-first degree of north latitude,
which from thence shall be drawn due east from the middle of the
Chattahoochee River, &c. This treaty declares and agrees that
the line which was described in the treaty of peace between Great
Britain and the United States as their southern boundary shall
be the line which divides their territory from East and West
TREATIES WITH PARTICULAR STATEs. 261
Florida. The article does not import to be a cession of territory,
but the adjustment of a controversy between two nations. It is
understood, as an admission that the right was originally in the
United States. -
Had Spain considered herself as ceding territory, she could not
have neglected to stipulate for the property of the inhabitants—
a stipulation which every sentiment of justice and of national
honor would have demanded, and which the United States would
not have refused.
- Ib., (225.)
Bickey’s Lessee vs. Stewart, 3 Howard, 760.
211. The treaty between the United States and Spain of 1795 (Pub.
TrS., 704) ascertained and established an existing but disputed
boundary-line, and prior grants made by the authorities of Spain
within the territory of Georgia, as ascertained by that treaty,
were invalid. -
Robinson v8. Minor, 10 Howard, 627.
212. The treaty with Spain of 1819 (Pub. Trs., 712) contains the follow-
ing stipulation in article 9: “The United States shall cause
satisfaction to be made for the injuries, if any, which by process
of law shall be established to have been suffered by the Spanish
officers and individual Spanish inhabitants by the late oper-
ations of the American Army in Florida.” “ . * * The treaty
certainly created no tribunal by which these damages were to be
adjusted, and gives no authority to any court of justice to inquire
into or adjust the amount which the United States were to pay
to the respective parties who had suffered damage from the
causes mentioned in the treaty. It rested with Congress to pro-
vide one, according to the treaty stipulation. * * * Undoubt-
edly Congress was bound to provide such a tribunal as the treaty
described. But if they failed to fulfill that promise, it is a ques-
tion between the United States and Spain.
United States vs. Ferreira, 13 Howard, 45, 46.
213. Where one of the parties to a treaty, at the time of its ratification,
annexes a written declaration explaining ambiguous language in
the instrument, or adding a new and distinct stipulation, and the
treaty is afterward ratified, by the other party with the decla-
ration attached to it, and the ratification duly exchanged, the
declaration thus annexed is a part of the treaty, and as binding
and obligatory as if it were inserted in the body of the instru-
ment. -
The grant of lands in Florida by the King of Spain to the Duke
of Alagon, whether it takes date from the royal order of Decem-
ber 17, 1817, or from the grant of February 6, 1818, is annulled
by the treaty between the United States and the King of Spain,
262 TREATIES WITH PARTICULAR STATES.
of 1819, (Pub. Trs., 712,) by virtue of the delaration to that
effect made by the President of the United States on presenting
the treaty for an exchange of ratifications, and assented to by
the King in writing, and again ratified by the Senate of the
United States. *
Doe vs. Braden, 16 Howard, 635.
214. Whether the King of Spain had power to annul a grant is a ques-
tion which was foreclosed in every judicial tribunal of the United
States by the action of the President and Senate treating with
him as having that power. - -
It would be impossible for the executive department of the
Government to conduct our foreign relations with any advantage
to the country, and fulfill the duties which the Constitution has
imposed upon it, if every court in the country was authorized to
inquire and decide whether the person who ratified the treaty on
behalf of a foreign nation had the power, by its constitution and
laws, to make the engagements into which he entered. Ib
215. The claims of American citizens against Spain, for which by the
convention (subsequently becoming the treaty) of 1819 (Pub.
Trs., 712) the United States undertook to make satisfaction to
an amount not exceeding $5,000,000, were such claims as, at
the date of the convention, were unliquidated and statements of
which had been presented to the Department of State, or to the
minister of the United States. *
Meade vs. United States, 9 Wallace, 691.
216. The convention, as signed 22d February, 1819, subject to ratifica-
tion within six months, though it was not ratified within the time
stipulated, was never abandoned, though some expressions in the
notification of August 21, 1819, by the United States to Spain
(notifying to that government that after the next day, “as the
ratifications of the convention will not have been exchanged, all
the claims and pretensions of the United States will stand in the
same situation as if that convention had never been made”) indi-
cated that the United States might be induced to carry it into
effect. -
Ib.
217. The notification did not, by the non-ratification within the six
months, make revocable the power which citizens of the United
States, by filing their claims with it, had given their Government
to make reclamations against Spain in their behalf.
Ib.
218. Under the treaty of cession of Louisiana, made with France of
1803, (Pub. Trs., 232,) the United States Government always
TREATIES WITH PARTICULAR STATES. 263
claimed to the Perdido River on the east, although the Spanish
authorities kept possession of, and claimed sovereignty over, the
territory between that river and the Mississippi, (except the island
of New Orleans,) until 1810, when the United States took forcible
possession of it.
United States vs. Lynde, 11 Wallace, 632.
219. Spain, in ceding the Floridas to the United States, by the treaty Of
1819, only ceded so much thereof as belonged to her, and hence
did not cede the above territory, lying between the Mississippi
and Perdido Rivers.
Ib. *
220. The stipulation in the eighth section of the treaty of 1819 to
confirm all Spanish grants of land in the ceded territory did not
embrace grants made in the above territory after Spain ceded
Louisiana to France by the treaty of Ildefonso in 1801, for after
that it did not belong to Spain. 4.
- Ib.
\
SWEDEN AND NORWAY.
221. By virtue of article 2 of the treaty with Sweden of 1783 (Pub.
Trs., 722,) and articles 8 and 17 of the treaty with Sweden
and Norway of 1827, (Pub. TrS., 738 and 741,) the provisions
of article 4 of the treaty with Belgium, of 1858, (Pub. Trs.,
53,) exempting steam-vessels of the United States and Belgium,
engaged in regular navigation between their respective countries,
from the payment of duties of tonnage, anchorage, buoys, and
light-houses, became immediately applicable, mutatis mutandis, to
steam-navigation between the United States and Sweden and
Norway.
Norse American line of steamers, 14 Op., 468, Williams, (1874.)
SWITZERLAND.
222. Under the convention for extradition between the United States
and Switzerland (Pub. Trs., 748,) it is sufficientif the crime be sub-
ject to infamous punishment where it was committed.
* In re François Farez, 7 Blatchford, 345.
223. Article 1 of the treaty of 1850, (Pub. Trs., 748,) providing that
citizens of the United States shall be at liberty to prosecute
and defend their rights before courts of justice in Switzerland
in the same manner as native citizens; gives the right to maintain
an action against the Government as such right is given to citi-
zens of Switzerland.
LobSiger's case, 5 C. Cls., 687.
264 TRIPOLI–VIRGINIUs.
wijRTEMBERG.
224. Article 3 of the treaty with Würtemberg of 1844 (Pub. Trs., 809)
does not include the case of a citizen of the United States dying
at home and disposing of property within the State of which he
Was a citizen and in which he died.
Frederickson vs. State of Louisiana, 23 Howard, 445.
TRiPoli.
See Easterritoriality.
TúJNHS.
See Easterritoriality.
WESSELS.
See American vessels.
Mational character.
Penalties and forfeitures.
WESSIEH, S OF THE UNHTIEED STATES.
See American vessels.
Virginius, (steamer.)
WHCPE-CONSUHLS.
See Consular officers.
VIRGINHUS, (Steamer.)
1. The papers presented by the Secretary of State in the case of this
steamer do not establish any violation of the neutrality laws,
either by the owners of the steamer or by the persons engaged
thereOn. ,
The Virginius, 14 Op., 49, Bristow, acting, (1872.)
2. Under the provisions of the first and fourth sections of the act of
1792, (1 Stat., 287; R. S., §§ 4131, 4142,) no vessel in which a
foreigner is directly or indirectly interested can lawfully be reg-
istered as a vessel of the United States, nor can it be deemed a
vessel of the United States, or entitled to the benefits or privi.
leges appertaining to a vessel of that description.
The Virginius, 14 Op., 340, Williams, (1873.)
VISITATION AND SEARCH. 265
3. So, where a vessel has been registered, but the registry was obtained
by a false oath as to its ownership, the vessel being at the time
owned in whole or in part by foreigners, it cannot be deemed a
vessel of the United States. *
- Ib.
4. Semble, that the Virginius, though registered as an American vessel
was in fact owned by foreigners, and that the registry thereof
was fraudulently obtained; and hence, at the time of her cap-
ture by the Spanish man-of-war Tornado, she had no right, by
virtue of that registry, as against the United States, to carry the
American flag.
Ib.
5. Yet, while upon the high seas, actually bearing an American register
and carrying an American flag, she was as much exempt from in-
terference by another power as though she had been lawfully reg-
istered; the question whether or not her register was fraudu-
lently obtained, or whether or not she was sailing in violation of
any law of the United States, being one over which such power
could not then and there rightfully exercise jurisdiction. -
Ib.
WHSHTATHON AND SEARCH.
1. When a vessel interrogated at sea answers either in words or by hoist-
ing her flag, the response must be taken for true, and she must
be allowed to keep her way; the interrogator cannot stop her, to
verify it by visitation, search, or otherwise.
General Miramon and Marquis de la Habana, 9 Op., 455, Black, (1860.)
2. A cruiser of one nation has a right to know the national character of
any strange ship she may meet at Sea, but the right is not a per-
feet one, and the violation of it cannot be punished by capture
and condemnation, nor even by detention.
3. The party making the inquiry must raise his own colors, or in some
other way make himself fully known, before he can lawfully de-
mand such knowledge from the other vessel.
Ib.
4. If this is refused, the inquiring vessel may fire a blank shot, and in
case of further delay a shotted gun may be fired across the bows
of the delinquent. -
lb.
266 VISITATION AND SEARCH. tº
5. Any measure beyond this, which the commander of an armed ship
may take for the purpose of ascertaining the nationality of another
vessel, must be at his peril.
* Ib.
6. This right of inquiry can be exercised only on the high seas, and no
naval officer has the right to go into the harbor of a nation with
which his government is at peace to inquire into the nationality
of a vessel which is lying there.
Ib.
7. It is well known that a vessel libeled as enemy's property is con-
demned as prize if she act in such a manner as to forfeit the pro-
tection to which she is entitled by her neutral character. If, for
example, a search be resisted, or an attempt be made to enter a
blockaded port, the laws of war, as exercised by belligerents, au-
thorize a condemnation as enemy’s property, however clearly it
may be proved that the vessel is in truth the vessel of a friend.
Maley vs. Shattuck, 3 Cranch, 488.
8. The right of search is not a right wantonly to vex or control neutral
commerce, or indulge in idle curiosity. It is a right growing out
of, and ancillary to, the greater right of capture, and can never
arise except as a means to that end.
- - The Nereide, 9 Cranch, 388, (427.)
9. The right of visitation and search is a belligerent right which cannot
be drawn into question, but must be conducted with as much re-
gard to the safety of the vessel detained as is consistent With a
thorough examination of her character and Voyage. i
The Anna Maria, 2 Wheaton, 327.
10. To detain for examination is a right which a belligerent may exer-
cise over every vessel, except a national vessel, which he meets
With on the Ocean.
The principal right necessarily carries with it all the means
essential to its exercise; among these may sometimes be included
the assumption of the disguise of a friend or an enemy, which is
lawful stratagem of war.
• ‘ The Eleanor, 2 Wheaton, 345.
11. The African slave-trade is not contrary to the law of nations.
The Antelope, 10 Wheaton, 66.
12. The right of search is a belligerent right only. -
Ib.
13. One nation cannot execute the penal laws of another, and, con-
sequently, a foreign vessel engaged in the slave-trade cannot law-
fully be captured by an American cruiser.
- - Ib.
WAR. 267
14. Though the right of Search of foreign vessels does not exist in time
of peace, yet a cruiser has a right to approach for purposes of .
observation.
The Marianna Flora, 11 Wheaton, 1.
15. The vessel approached is under no obligation to lie by, but neither
has she a right to fire at a cruiser approaching upon a mere con-
jecture that she is a pirate, and if this be done the cruiser may
lawfully repel force by force and capture her.
Ib.
16. There is no obligation to affirm a flag with a gun by an American
cruiser in time of peace.
- Ib.
17. A vessel and cargo, even when perhaps owned by neutrals, may be
condemned as enemy property because of the employment of the
vessel in enemy trade, and because of an attempt to violate a
blockade and to elude visitation and search.
The Baigorry, 2 Wallace,474.
WARR,
See Maritime War.
1. What constitutes a modified state of war considered, in reference to
the hostilities between France and the United States in 1799.
Bas v8. Tingy, 4 Dallas, 37.
2
. Congress may authorize general hostilities, in which case the general
laws of war apply to our situation, or partial hostilities, in which
case the laws of war, so far as they actually apply to our situa-
tion, must be noticed.
Talbot vs. Seeman, 1 Cranch, 1, (28.)
3. A state of actual war may exist without any formal declaration of it
by either party; and this is true of both a civil and a foreign
W3T.
Prize Cases, 2 Black, 635.
4
. A sale by a belligerent of a war-ship to a neutral in a neutral port is
invalid by the law of nations, as construed both in England and
America.
The Georgia, 1 Lowell, 96.
5
. War puts every individual of the respective governments, as well as
the governments themselves, in a state of hostility with each
other. All treaties, contracts, and rights of property are sus-
pended. The subjects are in all respects considered as enemies.
They may seize the persons and property of each other. They have
268 wARRANTs.
no persona standi in judicio, no power to sue in the public courts
of the enemy nation. It becomes in the highest degree criminal
to comfort or aid the enemy. - *
The Schooner Rapid and cargo, 1 Gallison, 303.
6. Of the right of the Sovereign power of a country to require the serv-
ices of all its citizens in time of war.
The Joseph, 1 Gallison, 545.
'7. On a declaration of War, the citizens are not bound to return from
foreign countries, unless So ordered by the Government.
- - - Ib.
8. Upon a declaration of war the President has an authority, as inci-
dent to his office, to employ all the usual and customary means,
acknowledged by the law of nations, to carry it into effect.
Cargo of Ship Emulous, 1 Gallison, 563.
9. The United States may be engaged in war, and have all the rights
of a belligerent, without any declaration by Congress.
- The Amy Warwick, 2 Sprague, 123.
WARRANTs.
See Ea:tradition.
Neutrality.
Treatie8.
ABBREVIATIONS.
In citing authorities the following abbreviations are made in the table:
Report. Abbreviation.
Abbott's United States -- - - Abbott U. S.
Baldwin------------------ Bald. &
Bee's Admiralty.---------- Bee's Adm.
Benedict ------------------ Bened. .
Blatchford ---------------- Blatch.
Blatchford & Howland - - - - Bla. & How.
Blatchford’s Prize Cases - - - Blatch. Pr. C.
Brockenbrough.------------ Brock.
Clifford ------------------- Cliff.
Court of Claims - - - - - - - - - - - Ct. of Cls.
Cranch --------.
* * * * * * * * * * * I’.
Dallas -------------------- Dall.
Gallison ------------------- Gall.
Gilpin -------------------- Gil.
Howard------------------- How.
Report. Abbreviation.
Lowell-------------------- Low. -
Newberry’s Admiralty - - - - - Newb. Adm.
Opinions of the Attorneys-
General --, -------------- Op.
Peters -------------------- Pet;.
Peters's Admiralty - - - - - - - - Pet. Adm
Peters's Circuit Court.----. Pet. C. C.
Sergeant & Rawle --- - - - - - - Sergt. & R.
Taney’s Decisions.--------- Taney's Dec.
United States Reports, S.C. U.S. R., S. C.
Wallace.------------------ Wall.
Wallace, Jr. -------------- - Wall., Jr.
Wharton’s State Trials - - - - - Whar. St. Tr.
Wheaton ------------------ Wh.
Wood. & M.
TA B L E O F C A S E S.
American citizen on British ship, 1 Op., 47.
p. 193 (public minister).
American Guano Co., 11 Op., 397. p. 132
(Guano Islands).
American Insurance Company vs. Canter,
1 Pet., 542, p. 56 (conquest).
1 Pet., 542, p. 124 (Florida).
1 Pet., 511. p. 258 (treaties with
particular states).
Americans in Turkey, Status of, 7 Op., 565,
p. 103 (exterritoriality).
7 Op., 565, p. 251 (treaties with
particular states).
American minister, Case of, 13 Op., 537.
p. 85 (diplomatic officers).
American Republics, Case of ministers of.
7 Op., 582. p. 195 (public minister).
American seamen, Ransom of, 6 Op., 126.
p. 204 (seamen).
American steamers at Port Sarnia, 11 Op.,
73. p. 66 (consular officers).
11 Op., 72. p. 213 (ship's papers).
Amiable Isabella, The, 6 Wh., 1. p. 131
(free goods). *
Wh., 1. p. 230 (treaties).
6 Wh., 1. p. 257 (treaties with
particular states).
Amistad de Rues, La, 5 Wh., 385, p.
The references in this table are, first, to the authority, case, and page cited; and,
second, to the page and title of this volume where use is made of such authority.
Absence, Compensation during, 14 Op.,
534. p. 54 (compensation).
Absence of diplomatic officer, 12 Op., 410.
p. 53 (compensation).
Acting consuls, Compensation of, 7 Op.,
714. p. 64 (consular officers).
Acting Secretary of State, 5 Op., 74. p. 50
(compensation).
Adams and others, Case of, 2 Op., 329. p.
184 (pardons).
Adela, The, 6 Wall., 266, p. 31 (capture
and prize).
6 Wall., 266, p. 177 (neutrals).
Adeline, Schooner, 9 Cr., 244. p. 28 (cap-
ture and prize).
Adelso, The, 11 Op., 445. p. 186 (pardons).
Ad-interim officer, Salary of, 13 Op., 7. p.
53 (compensation).
Admiral, The, 3 Wall., 602. p. 20 (block-
ade).
prize).
Advertisements, Departmental, 14 Op.,
576. p. 2 (advertisements).
Aid to seamien, 3 Op., 683, 685. p. 203
(Seamen).
Alerta, Brig, vs. Moran, 9 Cr., 359. p. 28
(capture and prize). -
9 Cr., 359, p. 168 (neutrality).
Alexander’s case, 7 Op., 542, p. 64 (con-
sular officers).
Alien Netherlanders, Inheritance by, 12
Op., 5. p. 248 (treaties with particular
states).
Aliens, Children of, 10 Op., 328, p. 35
(citizenship).
Aliens, Enlistment of, 3 Op., 671. p. 3
(aliens).
6 Op., 474. p. 4 (aliens). ~.
3 Op., 671. p. 142 (international
law).
6 Op., 474. p. 142 (international
law).
Aliens, Rights of, 1 Op., 275, p. 3 (aliens).
Allen vs. Blunt, 3 Story, 742. p. 183 (of-
ficers of Government). -
Ambassadors and public ministers, 7 Op.,
186, p. 84 (diplomatic officers).
American citizen on British ship, Case of,
1 Op., 47. p. 101 (exterritoriality).
1 Op., 47. p. 133 (habeas corpus).
1 Op., 47, p. 139 (international
law).
3 Wall, 604. p. 31 (capture and
147 (international law).
Wh., 385. p. 169 (neutrality).
Amistad, The, 3 Op., 484. p. 255 (treaties
with particular states).
Amther's case, 9 Op., 62. p. 33 (citizens).
9 Op., 62. p. 98 (expatriation).
Amy Warwick, The, 2, Sprague, 107. p.
32 (capture and prize).
2 Sprague, 123.
property).
2 Sprague, 123. p. 268 (war).
Anderson’s case, Major, 14 Op., 419. p. 45
(claims).
14 Op., 419. pp. 95, 96 (Executive
Departments).
Andrews vs. United States, 2 Story, 202.
p, 54 (compensation). -
2 Story, 202, p. 183 (officers of Gov-
ernment).
Andromeda, The, 2. Wall., 481. p. 19
(blockade).
Angelo de Giacomo, In re, 12 Blatch., 391.
pp. 121, 122 (extradition).
12 Blatch., 391. p. 247 (treaties
with particular states).
p. 92 (enemy
271
272
TABLE OF CASES.
Ann, The brig, 1 Gall., 62.
national law).
1 Gall., 62, p. 154 (jurisdiction).
1 Gall., 62. p. 178 (neutral terri-
tory).
Ann Elizabeth, The brig, 7 Op., 730. p.
205 (seamen.
Ann Green, The, 1 Gall., 274. p. 88 (dom-
icile).
Anna Maria, The, 2 Wh., 327. p. 266
(visitation and search).
Anne, The, 3 Wh., 435. p. 126 (foreign
consuls). -
3 Wh., 435. p. 169 (neutrality).
3 Wh., 435. p. 196 (public min-
ister),
Antelope, The, 10 Wh., 66. p. 147 (inter-
national law).
10 Wh., 66. p. 217 (slave trade).
10 Wh., 66, p. 266 (visitation
and search).
Antoine’s case, 1 Op., 192. p. 223 (suits).
Antonia Johanna, The, 1 Wh., 159. p.
28 (capture and prize). -
1 Wh., 159. p. 174 (neutrals).
Apollon, The, 9Wh., 362, p. 212 (seizure).
Wh., 362. p. 219 (sovereignty).
Appointment of a commissioner, 8 Op., 41.
p. 7 (appointments).
8 Op., 41. p. 222 (statutes.)
Appointment of consuls, Concerning, 7 Op.
242. p. 63 (consular officers).
Appointments, Question of, 4 Op., 248. p.
93 (Executive Departments).
Appropriation act, Post-Office Depart-
ment 8 Op., 39, p. 94 (Executive De-
partments).
8 Op., 39. p. 222 (statutes).
Appropriation, Unexpended balances of,
13 Op., 288, p. 8 (appropriations).
Arey’s case, 11 Op., 458. p. 205 (seamen).
Ariadne, The, 2 Wh., 143. p. 135 (illicit
intercourse).
Ariel, The schooner, 4 Op., 285. p. 217
(sovereignty).
Arms for Maximilian, 11 Op., 451. p. 167
(neutrality).
Arredondo's case, 2 Op., 191. p. 255
(treaties with particular states).
Arrogante Barcelones, The, 7 Wh., 496.
p. 171 (neutrality).
Atalanta, The, 8 Op., 73. p. 7 (American
vessels).
3 Wh.,409, p. 91 (enemy property).
8 Op., 73. p. 103 (exterritoriality).
8 Op., 73. p. 133 (high seas).
3 Wh., 409, p. 147 (international
law).
8 Op., 73. p. 154 (jurisdiction).
Atocha, Ea, parte, 17 Wall., 439, p. 11
(awards).
Attack on Sierra Leone, 1 Op., 57. p. 130
(foreign states). -
1 Op., 57. 162 (neutrality).
Aurora, The, 8 Cr., 203. p. 134 (illicit in-
tercourse).
Authority of heads of Departments, 10 Op.,
435. p. 95 (Executive Departments).
Award of Emperor of Russia, 2 Op., 28.
p. 137 (indemnification).
p. 150 (inter-
Baigorry, The, 2 Wall, 474. p. 19 (block-
ade).
2 Wall., 474, p. 175 (neutrals).
2 Wall., 474, p. 267 (visitation and
search). -
Bailey, In re, 2 Sawyer, 200. p. 160 (natu-
ralization).
Bansman’s case, 1 Op., 327. p. 183 (par-
dons). --
Barré, Henry, Case of, 1 Op., 55, p. 105
(extradition).
1 Op., 55. p. 202 (seamen).
1 Op., 55. p. 236 (treaties with par-
ticular states).
Barry's case, James, 1 Op., 566. p. 214
(slaves).
1 Op., 566. p. 217 (sovereignty).
Bas v8. Steele, 3 Wash., 381. p. 177 (neu-
trals).
Bas vs. Tingy, 4 Dall., 37, 39. p. 90 (ene-
my).
4 Dall., 37. p. 131 (France).
4 Dall., 37, (43). p. 144 (internar
tional law). N
4 Dall., 37. p. 267 (war).
Bayley’s complaint, 6 Op., 226, p. 93 (ex-
ecutive authority).
Beers's case, 5 Op., 444. p. 14 (bills of ex-
change).
Belding's heirs, Claim of, 10 Op., 56. p. 44
(claims).
10 Op., 56. p. 58 (constitutional
law). -
Bello Corrunes, The, 6 Wh., 168, p. 126
(foreign consuls). -
Bellona, The, 6 Op., 488. p. 185 (pardons).
Benson's case, 7 Op., 88. p. 73 (contracts).
Bermuda, The, 3 Wall., 514. p. 31 (capture
and prize).
3 Wall., 514. p. 72 (contraband).
3 Wall., 514, pp. 175,176 (neutrals).
Berthermy, Madame, Case of, 12 Op., 7. p.
35 (citizenship).
13 Op., 128, p. 36 (citizenship).
Best vs. Polk, 18 Wall., 112. p. 182 (office).
Bills, Indorsement of, 1 Op., 188, p. 13
(bills of exchange.)
Bishop, Seneca S., Case of, 7 Op., 722. p.
64 (consular officers).
7 Op., 722. p. 205 (seamen).
Bixby vs. Janssen, 6 Blatch., 315. p. 128
(foreign consuls).
Blight's lessee vs. Rochester, 7 Wh., 535.
p. 245 (treaties with particular states).
Blockade runners, Case of, 10 Op., 513. p.
17 (blockade). *
10 Op., 513. p. 137 (insurrection).
10 Op., 452. p. 186 (pardons).
Blythe, consul at Havana, 8 Op., 380. p.
65 (consular officers).
8 Op., 380. p. 76 (crimes).
Bolivia, Deserters from the bark, 14 Op.,
520. p. 68 (consular officers). &
14 Op., 520. p. 206 (seamen).
Boundaries on the Rio Bravo, 8 Op., 175.
p. 22 (boundaries).
Breedlove and Robeson vs. Nicolet and
Sigg, 7 Pet., 413. p. 5 (aliens). -
Brigstock and others, Case of, 1 Op.; 83.
p. 105 (extradition).
TABLE OF CASES.
273
Bagstock and others, 1 Op., 83. p. 241
(treaties with particular states).
British and American Commissioners, Case
of, 6 Op., 65. p. 50 (compensation).
6 Op., 65. p. 227 (traveling-ex-
penses).
6 Op., 65. p. 242 (treaties with
particular states).
British consul at Norfolk, Case of, 1 Op.,
41. p. 62 (consular officers). -
1 Op., 41. p. 124 (foreign consuls).
1 Op., 41. p. 139 (international law).
1 Op., 41. p. 193 (public minister).
British consul’s case, 7 Op., 367. p. 125
(foreign consuls).
7 Op., 367. p. 128 (foreign enlist-
ments).
7 Op., 367. p. 143 (international
law).
7 Op., 367. p. 166 (neutrality).
7 Op., 367. p. 218 (Sovereignty).
British enlistments, 8 Op., 468,476. p. 129
(foreign enlistments). -
8 Op., 468, 476. p. 167 (neutral-
ity).
British minister, Case of, 1 Op., 52. p. 140
(international law).
1 Op., 52. p. 194 (public minister).
British minister, Letter of, as to purchase
of ships, 6 Op., 638. p. 6 (American ves-
Sels). **
6 Op., 638, p. 142 (international
6 Op., 638. p. 165 (neutrality).
British prisoners, Case of the, 1 Wood. &
M., 66. p. 117 (extradition).
1 Wood. & M., 66. p. 246 (treaties
with particular states).
British treaty of 1853, 10 Op., 31. p. 229
(breaties). - -
Brown vs. The Independence, Crabbe, 54.
p. 70 (consular officers).
Crabbe, 54, p. 208 (seamen).
Brown vs. United States, 8 Cr., 110. p. 90
(enemy property).
Brown, William, Case of, 6 Op., 485, p.
109 (extradition).
law)
Brown's case, 5 Ct. of Cls., 571. p. 47
(claims).
Brown’s case, J. P., 9 Op., 507. p. 52 (com-
pensation).
Browning's case, 12 Op., 459. p. 53 (com-
pensation).
— 12 Op., 459. p. 179 (office).
Bryant’s case, 1 Op., 482, p. 184 (pardons).
Buchanan vs. Alexander, 4 How., 20. p. 9
(attachments).
Butler vs. United States, 21 Wall., 272. p.
225 (Sureties). -
Cabrera, Ex parte, 1 Wash., 232, p. 151
(international law).
1 Wash., 232. p. 197 (public min-
ister). -
Calder's Case, William, 6 Op., 91, p. 108
(extradition).
Caldwell's case, 8 Blatch., 131. p. 246
(treaties with particular states).
11 Op., 35. p. 186 (pardons).
Caledonian, The,4 Wh., 100. p. 135 (illicit
intercourse).
California claims, 12 Op., 250. p. 222
(statutes).
Campbell v3. Gordon, 6 Cr., 176. p. 37
(citizenship). -
6 Cr., 176. p. 160 (naturalization).
Campbell vs. The Uncle Sam, 1 McAll., 77.
p. 69 (consular officers).
1 McAll. 77. p. 208 (seamen).
1 Op., 50. p. 193 (prosecutions).
Captures on the Rio Grande, 11 Op., 117.
p. 81 (departments of government).
11 Op., 117. p. 98 (executive in-
terference).
Cannon vs. New Orleans, 20 Wall., 577, p.
227 (tonnage tax).
Cargo of ship Emulous, 1 Gall., 562, p. 150
(international law).
1 Gall., 563. p. 268 (war).
Carlisle vs. United States, 16 Wall., 148.
p. 5 (aliens). -
16 Wall., 148, p. 47 (claims).
16 Wall., 147, p. 188 (pardons).
Caroline E. Kelley, The, 2 Abbott U. S.,
160. p. 210 (seamen).
Carr's inquiries, Mr., 5 Op., 67. pp. 235,
251 (treaties with particular states).
Carrington vs. Merchants' Insurance Com-
pany, 8 Pet., 495, p. 72 (contraband).
Castillero case, The, 9 Op., 320. p. 83
(diplomatic interference).
Castro's case, Manuel, 9 Op., 96. p. 98 (ex-
ecutive interference).
9 Op., 96. p. 205 (seamen).
9 Op., 96. p. 256 (treaties with par-
ticular states).
Catawanteak, The, 2 Bened., 189. p. 210
(seamen).
Cayo Verde Islands, 9, Op., 406, p. 132
(Guano Islands).
Certification by delegation, 7 Op., 594, p.
33 (certifying officers).
7 Op., 594. p. 94 (Executive Depart-
Inents). -
Chargé d'affaires, Case of a, 9 Op., 425, p.
52 (compensation). -
Charpentier's case, 8 Op., 420. p. 112
(extradition). -
Cherokee tobacco cases, 11 Wall., 621. p.
233 (treaties).
Cheshire, The, 3 Wall., 235. p. 19 (block-
ade).
3 Wall., 231.
prize).
3 Wall., 231, p. 88 (domicile).
3 Wall., 231. p. 91 (enemy prop-
erty).
Chesterfield, The, 1 Op., 87. p. 101 (ex-
territoriality).
1 Op., 87, p. 140 (international
p. 31 (capture and
law). -
s——1 Op., 87, p. 241 (treaties with
particular states).
Chief justice of New Mexico, Case of, 6
Op., 87. p. 179 (office).
Children of aliens, 10 Op., 328. p. 35
(citizen ship).
Chili, Case of the minister to, 1 Op., 620.
p. 83 (diploma tic office).
China, Authorityof Commiſsisssoners to, 9
Op., 294, p. 59 (consular courts).
18
274.
TABLE OF CASES.
China, Judicial authority in, 7 Op., 495.
p. 59 (consular courts).
7 Op., 495. p. 64 (consular offi-
cers).
7 Op., 495. p. 102 (exterritoriality).
7 Op., 495. p. 154 (jurisdiction).
7 Op., 495. p. 235 (treaties with
particular states). sº
Chirac vs. Lessee of Chirac, 2 Wh., 259.
p. 238 (treaties with particular states).
Chiriqui Co., The, 9 Op., 391. p. 152
(Isthmus of Panama). -
9 Op., 286. p. 144 (international
law).
9 Op., 286. p. 218 (sovereignty).
—— 9 Op., 391. p. 249 (treaties with
particular states).
Choctaw Indians, 13 Op., 354. p. 229
(treaties).
Chorpenning's case, 12 Op., 355, p. 44
(claims).
—— 12 Op., 355, p. 95 (Executive De-
partments). -
Chouteau vs. Eckhart, 2 How., 344. p.
240 (treaties with particular states.)
Christiana Cochrane's case, 4 Op., 201. p.
106 (extradition).
4 Op., 301.
particular states).
Church vs. Hubbart, 2 Cr., 187. p. 68 (con-
Sular officers).
2 Cr., 187. p. 212 (seizure).
Chy Lung vs. Freeman, 92 U. S. R., S.
C., 275. p. 59 (constitutional law).
Circassian, The, 2 Wall., 135, p. 18
(blockade).
Citizens—foreign consuls, 8 Op., 169. p.
126 (foreign consuls).
8 Op., 169. p. 144 (international
law).
Citizenship, 9 Op., 373. p. 34 (citizen-
ship.) $
City of New Orleans vs. Armas & Cucullu,
9 Peters, 223. p. 239 (treaties with par-
ticular states).
Claim for transporting prisoners, 6 Op., 59.
p. 59 (consular courts).
Claim of Belding's heirs, 10 Op., 56. p. 44
(claims).
10 Op., 56. p. 58 (constitutional
law).
10 Op., 56. p. 94 (Executive Depart-
ments).
Claim of Colonel Graham et al., 5 Op., 671.
p. 43 (claims).
Claim of executor of George Galpin, 5 Op.,
105. p. 43 (claims).
Claim of Henry de la Francia, 5 Op., 105,
135, 137. p. 42 (claims). **
5 Op., 105. p. 138 (interest).
Claim of representative of John M. Galt,
5 Op., 83. p. 42 (claims).
Claim of the captain of the Iris, 5 Op., 116.
p. 201 (salvage).
Claim of the French minister, 2 Op., 378.
p. 125 (foreign consuls).
2 Op., 378, p. 141 (international
law).
Claim of W. R. Gibbes, 13 Op., 19, p. 45
(claims).
p. 242 (treaties with.
Claim of W. R. Gibbes, 13 Op., 19. p. 249
(treaties with particular states).
Claim, Thompson's, 4 Op., 372. p. 227
(traveling expenses).
Claims, Florida, 5 Op., 334. p. 228 (trea-
ties).
Claims for freight under treaty with
France, 1 Op., 136. p. 237 (treaties with
particular states). *
Claims of heirs of Thomas Ewel, 5 Op.,
138. p. 42 (claims).
5 Op., 138, p. 138 (interest).
Claims of Texas for invasion, 4 Op., 332.
p. 41 (claims).
Claims, rejected, Power of Departments
over, 10 Op., 56. p. 94 (Executive De-
partments).
Claims, transportation, 5 Op., 399. p. 138
(interest).
Claims under treaty with France, 1 Op.,
136. p. 41 (claims). -
Clapp and Smith, captains, Case of, 5 Op.,
454. p. 216 (slave trade).
Clay's case, 8 Ct. of Cls., 209. p. 55 (com-
pensation).
Clayton-Bulwer treaty, The, 8 Op., 436. p.
33 (Central America).
Slayton-Bulwer treaty, The, 8 Op., 436. p.
242 (treaties with particular states).
Clerks in Departments, Oaths of, 12 Op.
521. p. 48 (clerks). - s
12 Op., 521. p. 95 (Executive De-
partments).
Clifton's case, 1 Op., 123. p. 75 (crimes).
Clinton’s case, 10 Op., 120. p. 9 (attach-
ments).
10 Op., 120. p. 52 (compensation).
10 Op., 120. p. 201 (salaries).
Cochran’s case, Captain, 1 Op., 49. p. 101
(exterritoriality).
1 Op., 49. p. 129 (foreign officers).
Coffin vs. Jenkins, 3 Story, 108, p. 207
(seamen).
Collector at Norfolk, case of, 1 Op., 337.
p. 129 (foreign ships of war).
Colmesnil's case, 7 Op., 523. p. 43 (claims).
7 Op., 523. p. 138 (interest).
Colombia, Case of the minister to, 2 Op.,
204. p. 84 (diplomatic officers).
Colombia, Claims under convention with,
11 Op., 402. p. 236 (treaties with par-
ticular states).
Comegys vs. Vasse, 1 Pet., 193. p. 10
(awards).
1 Pet., 193. p. 46 (claims).
1 Pet., 193. p. 257 (treaties with
particular states).
Commercen, The, 1 Wh., 382. p. 71 (con-
traband).
1 Wh., 382. p. 174 (neutrals).
Commercial agent at St. Thomas, Case
of the, 5 Op., 161, p. 63 (consular offi-
cers).
6 Op., 163. p. 63 (consular officers).
6 Op., 163. p. 213 (ship's papers).
Commissioner and advocate, Designation
of, 13 Op., 416. p. 6 (American and Span-
ish Claims Commission).
Commissioner, Appointment of a, 8 Op., 41.
p. 7 (appointments).
TABLE OF
CASES.
275
Consuls, Rights of, 8 Op., 469, p. 126 (for-
eign consuls).
Construction of treaty, 7 Op., 582. p. 158
(Mesilla treaty).
Convention with United States of Colom-
bia, 11 Op., 402, p. 44 (claims).
Converse vs. United States, 21. How., 463.
p. 54 (compensation).
Convicts at Smyrna, Case of three, 14 Op.,
522. p. 60 (consular courts).
Coolie trade, 9 Op.,282, p. 74 (coolie trade).
Coppell vs. Hall, 7 Wall., 553. p. 68 (con-
sular officers).
7 Wall., 542, p. 92 (enemy prop-
ert
y).
7 Wall., 542. p. 127 (foreign con-
suls).
— 7 Wall., 542, p. 177 (neutrals).
Copyright convention, Effect of, 6 Op., 291.
p. 228 (treaties).
Cornelia Amsden, The, 5 Benedict, 315. p.
210 (seamen). - -
Cornell's case, A. B., 14 Op., 259. p. 181
(office).
Corony, The, 1 Op., 231. p. 163 (neutrak-
ity).
cº Rican Commission, 10 Op., 450. p.
236 (treaties with particular states.)
Costs in extradition cases, 9 Op., 497. p.
112 (extradition).
Coxe's case, 2 Op., 521.
officers).
2 Op., 521. p. 71 (contingent ex-
penses of foreign intercourse).
Craig vs. Bradford, 3 Wh., 594, p. 244
(treaties with particular states).
Craig v8. Leslie, 3 Wh., 563. p. 5 (aliens).
Crampton's case, Mr., 7 Op., 367. p. 195
(public minister).
º vs. Sims, 5 How., 192. p. 225 (sure-
ties).
Creole, Case of the, 4 Op., 98. p. 102 (ex-
territoriality).
4 Op., 98.
law).
Commissioners, Case of British and Ameri-
can, 6 Op., 65. p. 227 (traveling expenses).
6 Op., 65. p. 242 (treaties with par-
ticular states).
Commissioners of Immigration vs. The
North German Lloyds, 92 U. S. R., S.C.,
259. p. 58 (constitutional law).
Commissioners to China, Authority of, 9
Op.; 294. p. 59 (consular courts).
9 Op., 294, p. 236 (treaties with
particular states).
Commissioners under treaty with Mexico,
Case of 7 Op., 582. p. 139 (international
commissioners).
Commissioners, Vacancies of, 14 Op., 48.
p. 33 (centennial exhibition).
Compensation during absence, 14 Op., 534.
p. 54 (compensation).
Compensation of acting consuls, 7 Op., 714.
p. 64 (consular officers).
Compensation of consular agents, 12 Op.,
97. p. 67 (consular officers).
Compensation of officers, 9 Op., 89. p. 51
(compensation).
Conception, La., 6 Wh., 235. p. 29 (cap-
ture and prize).
6 Wh., 235. p. 169 (neutrality).
Consul at Halifax, Case of the, 9 Op., 500.
p. 66 (consular officers).
Consul at Havana, Blythe, 8 Op., 380. p.
65 (consular officers).
8 Op., 380. p. 76 (crimes).
Consul at Honolulu, Judicial powers of 11
Op., 508, p. 67 (consular officers).
Consul at Nassau, Case of the, 4 Op., 390.
p. 62 (consular officers).
4 Op., 390. p. 213 (ship's papers).
Consul at Norfolk, British case of, 1 Op., 41.
p. 124 (foreign consuls). ,
1 Op., 41. p. 139 (international law.)
Consul at Windsor, Case of the, 11 Op., 237.
p. 66 (consular officers). -
11 Op., 237, p. 213 (ship's papers).
Consular courts in Japan, 11 Op., 474, p.
60 (consular courts).
11 Op., 474, p. 247 (treaties with
particular States).
Consular courts in Turkey, Jurisdiction of,
9 Op., 296. p. 59 (consular courts).
Consular fees, 9 Op., 441. p. 65 (consular
officers).
Consuls, Fees of, 12 Op., 727. p. 67 (consu-
lar officers).
Consul’s case, British, 7 Op., 367. p. 125
(foreign consuls). -
7 Op., 367. p. 143 (international
law).
7 Op., 367. p. 166 (neutrality).
Consuls, Concerning appointment of, 7 Op.,
242, p. 63 (consular officers).
Consuls, foreign, Citizens, 8 Op., 169. p.
126 (foreign consuls).
Consuls, Functions of, 7 Op., 342. p. 102
(exterritoriality).
Consuls, Immunities of foreign, 2 Op., 725.
p. 125 (foreign consuls).
2 Op., 725. p. 141 (international
law).
Consuls, Powers of, 9 Op., 384, p. 65 (con-
sular officers).
| Dauphin's case, 6 Ct. of Cls., 221.
4 Op., 98. p. 215 (slaves).
Cross vs. Harrison, 16 How., 190. p. 13
(belligerents).
16 How., 190. p. 23 (California).
16 How., 190. p. 56 (conquest).
Curaçoa, Case of five residents of, 13 Op.,
89. p. 35 (citizenship).
13 Op., 89. p. 189 (passports).
Dainese vs. Hale, 91 U. S. R., S. C., 13. pp.
60, 61 (consular courts).
—— 91 U. S. R., S. C., 13. p. 251 (trea-
ties with particular states).
p. 62 (consular
p. 142 (international
| Dashing Wave, The, 5 Wall., 170. p. 20
(blockade).
p. 48
(claims).
David’s case, 8 Op., 215. p. 111 (extradi-
tion). -
—– 8 Op., 306. p. 111 (extradition).
Davis vs. Packard, 7 Pet.,276. p. 126 (for-
eign consuls).
Davis vs. The police-jury of Concor-
dia, 9 How., 280. p. 148 (international
law).
9 How, 225, p.232 (treaties).
276
TABLE OF CASES.
Davison vs. Seal-skins, 2 Paine, 324, p.
219 (sovereignty).
Decedents, foreign, Estates of, 8 Op., 98.
p. 125 (foreign consuls):
8 Op., 98. p. 128 (foreign dece-
dents).
De Give’s case, 7 Ct. of Cls., 517. p. 47
(claims).
Delano and Russell, Case of, 11 Op., 30. p.
132 (Guano Islands). -
Delassens vs. United States, 9 Pet., 117.
p. 239 (treaties with particular states).
Departmental advertisements, 14 Op., 576.
p. 2 (advertisements). t
Departments, Authority of heads of, 10
Op., 435 [441]. p. 95 (Executive De-
partments). -
Departments, Executive, Relation of Presi-
dent to, 7 Op., 453. p. 94 (Executive De-
partments).
Departments, Liability of, 4 Op., 90. p.
13 (bills of exchange). -
Departments, Oaths of clerks in, 12 Op.,
521. p. 48 (clerks).
12 Op., 521.
partments).
Departments, Power of, over rejected
claims, 10 Op., 56. p. 94 (Executive
Departments).
Depository of records, 2 Op., 515. p. 221
(State Department).
2 Op., 515, p. 255 (treaties with
particular states). *
De Puy, In the matter of, 3 Bened., 307.
p. 188 (pardons).
Derrick & Mackie's case, 6 Op., 464, p.
222 (statutes). -
Deserter from the Danish ship Saga, Case
of, 6 Op., 148, p. 108 (extradition).
6 Op., 148. p. 204 (seamen).
6 Op., 148, p. 228 (treaties).
6 Op., 148, p. 236 (treaties with
particular states).
Deserters of the bark Bolivia, 14 Op., 520.
p. 68 (consular officers).
14 Op., 520. p. 206 (seamen).
Deserters from the Niobe, 12 Op., 463. p.
206 (seamen). -
—-12 Op., 463. p. 252 (treaties with
particular states).
º case, 3 Op., 661. p. 106 (expatria-
tion). ~.
Diana, The, 7 Wall., 354, p. 21 (blockade).
Diplomatic officers, Absence of, 12 Op.,
410. p. 53 (compensation). -
Disbursements, 14 Op., 409. p. 222 (State,
War, and Navy building).
p. 95 (Executive De-
District attorney, Case of a, 12 Op., 469.
p. 180 (office).
District attorneys, Duties of, 9 Op., 246.
p. 112 (extradition).
9 Op., 246. p. 205 (seamen).
District attorney for Oregon, Case of, 14
Op., 325 [326]. p. 206 (seamen).
Divina Pastora, The, 4 Wh., 52, p. 40
(civil war).
Doe vs. Braden,
(treaties).
16 How.,635. p. 262 (treaties with
particular states).
16 How., 635, p. 232
Dos Hermanos, The, 2 Wh., 76. p. 87
(domicile). - -
Drafts, Payment of, 7 Op., 599. p. 15
(bills of exchange).
Drafts under Mesilla treaty, Payment of,
7 Op., 599. p. 158 (Mesilla treaty).
7 Op., 599. . p. 247 (treaties with
particular states).
Drayton's and Sears's case, 5 Op., 532 and
579. p. 185 (pardons). -
Droit d’Aubaine, In re, 8 Op., 411. p. 4
(aliens). -
8 Op., 411. p. 229 (treaties).
Duncan vs. United States, 7 Pet., 435. p.
225 (Sureties).
Duke, The, Case of three seamen from, 5
Op., 547. p. 204 (seamen).
Duties under treaty of 1794, 1 Op., 155. p.
241 (treaties with particular states).
Eagle, The, Olcott, 232. p. 209 (seamen).
Edgar Stewart, The, 14 Op., 589. p. 76
(crimes).
Eleanor, The, 2 Wh., 345. p. 266 (visita-
tion and search). •
Eliza and pilot, The bark, 7 Op., 229, [237,
238.1 p. 43 (claims).
7 Op., 229. p. 143 (international
law).
)
- 7 Op., 229. p. 217 (sovereignty).
Elwine Kreplin, The, 9 Blatch, 438, p.
127 (foreign consuls). -
9 Blatch., 438. p. 253 (treaties with
particular states).
Embezzlement, Case of, 7 Op., 643. p. 111
(extradition). -
Emily, The, 9 Wh., 381. p. 217 (slave-
trade).
Emperor of Russia, Award of the, 2 Op.,
28. p. 137 (indemnification).
Emulous, Cargo of ship, 1 Gall., 562. p.
150 (international law).
1 Gall., 563. p. 268 (war).
English ship, Sale of any 1 Op., 190. p. 163
(neutrality).
Enlistment of aliens, 3 Op., 671. p. 3
(aliens).
Op., 671. p. 142 (international
law).
6 Op., 474. p. 4 (aliens).
6 Op., 474, [476]. p. 142 (interna-
tional law).
Enlistment of seamen for Mexico, 4 Op.,
336. p. 165 (neutrality).
Ennis vs. Smith, 14 How., 422. p. 87 (dom-
icile).
Ernst's case, Christian, 9 Op., 356. p. 34
(citizenship).
9 Op., 356, p. 99 (expatriation).
9 Op., 356, p. 144 (international
law).
9 Op., 356. p. 159 (naturalization).
Estates of foreign decedents, 8 Op., 98.
p. 125 (foreign consuls).
8 Op., 98. p. 128 (foreign dece-
dents). -
Estrella, The, 4 Wh., 298, p. 40 (civil
war).
Ewel, Thomas, Claims of heirs of, 5 Op.,
138. p. 42 (claims).
5 Op., 138. p. 138 (interest).
TABLE OF CASES.
277
Exchange vs. McFaddon, Schooner, 7 Cr,
116. p. 103 (exterritoriality).
7 Cr., 116, [137]. p. 145 (interna-
tional law).
7 Cr., 116. p. 218 (Sovereignty).
Execution of treaties, 1 Op., 66. p. 227
(treaties).
Executive Departments, Relation of Pres-
ident to, 7 Op., 453. p. 94 (Executive
Departments). -
Expatriation, Right of, 8 Op., 139, p. 98
(expatriation". -
Experiment, The, 8 Wh, 261, [265]. p.
192 (privateers).
Exportation of arms to Mexico, 11 Op.,
408, p. 167 (neutrality).
Exposition, Expenditures for, 12 Op., 9. p.
189 (Paris Exposition). .
Extradition, 6 Op., 217. p. 109 (extradi-
tion).
Extradition cases, Costs in, 9 Op., 497. p.
112 (extradition).
Extradition—Public officers, 8 Op., 106. p.
238 (treaties with particular states).
Extradition under treaty with France,
Formalities of, 4 Op., 330. p. 107 (extra-
dition).
4 Op., 330. p. 238 (treaties with
particular states).
Extradition under treaty of Washington,
4 Op., 240. p. 107 (extradition).
Fairfax's Devisee vs. Hunter's Lessee, 7 Cr.,
603, L619]. p. 4 (aliens). -
7 Cr., 603, [619]. p. 146 (interna-
tional law).
7 Cr., 603. p. 244 (treaties with
particular states).
Fanny, The, 9 Wh., 668, p. 30 (capture
and prize). g
9 Wh., 658, [668]. p. 171 (neu-
trality). -
Farez, François, In re, 7 Blatch., 34. p.
117 (extradition).
7 Blatch., 345. p. 118 (extradition).
7 Blatch., 491. p. 119 (extradition).
7 Blatch., 345. p. 263 (treaties with
particular states).
Fearless, The ship, 13 Op., 557. p. 67 (con-
sular officers).
13 Op., 557. p. 206 (seamen).
Fees, Consular, 9 Op., 441. p. 65 (consular
officers).
tºº
Fees of consuls, 12 Op., 527. p. 67 (con-
sular officers).
Fellows vs. Blacksmith, 19 How., 336, [372].
p. 232 (treaties). -
Fichera's case, 9 Ct. of Cis, 254, p. 48
(claims).
Fitzsimmons vs. Newport Insurance Com-
pany, 4 Cr., 185, [200]. p. 18 (blockade).
4 Cr., 185, [200]. p. 244 (treaties
with particular states).
Fleming vs. Page, 9 How, 603. p. 56 (con-
quest). -
Florida, The, 4 Bened., 452, p. 172 (neu-
trality).
Florida claims, 5 Op., 334. p. 228 (treaties).
6 Op., 533. p. 256 (treaties with
particular states).
Florida, Territorial rights, 1 Op., 68. p.
217 (sovereignty).
'Floyd acceptances, 7 Wall, 666. pp. 15,
16 (bills of exchange).
Foreign consuls, Citizens, 8 Op., 169. p.
126 (foreign consuls).
8 Op., 169. p. 144 (international
law).
Foreign consuls, Immunities of, 2 Op., 725.
p. 125 (foreign consuls).
2 Op., 725. p. 141 (international
law).
Foreign country, Power of the President
as to legislation of, 6 Op., 209. p. 204
(seamen). -
Foreign decedents, Estates of, 8 Op., 98.
p. 125 (foreign consuls).
8 Op.,98, p. 128 (foreign decedents).
Formalities of extradition treaty with
France, 4 Op., 330. p. 107 (extradition).
4 Op., 330. p. 238 (treaties with
particular states).
Forsyth vs. Reynolds, 15 How., p. 358.
246 (treaties with particular states).
Fortuna, The, 3 Wh., 236, p. 175 (neu-
trals).
Foster vs. Neilson, 2 Pet., 253. p. 23
(boundaries).
- 2 Pet., 253. p. 82 (department of
government).
2 Pet., 253. p. 124 (foreign consuls).
2 Pet., 253. p. 231 (treaties).
2 Pet., 253. p. 258 (treaties with
particular states).
France, Claims for freight under treaty
with, 1 Op., 136. p. 237 (treaties with
particular states). -
France, Claims under treaty with, 1 Op.,
136. p. 41 (claims). ©
France, Extradition under treaty with,
4 Op., 330. p. 107 (extradition).
4 Op., 330. p. 238 (treaties with
particular states). . -
Francis, The, 8 Cr., 335. p. 86 (domi-
cile).
Francia, Henry de la, Claim of, 5 Op., 105,
135, 137. p. 42 (claims).
– 5 Op., 105. p. 138 (interest).
Francis, The, 1 Gall., 614, [618]. p. 88
(domicile). -
Francis and cargo, The ship, 1 Gall., 444.
p. 92 (enemy property).
Frederickson vs. State of Louisiana, 23
How., 445. p. 264 (treaties with partic-
ular states). -
French citizens, Case of two, 3 Op., 255.
p. 3 (aliens).
French consul, Authority of, 2 Op., 378.
p. 237 (treaties with particular states).
French minister, Claim of, 2 Op., 378, p.
125 (foreign consuls).
2 Op., 378, [381]. p. 141 (interna-
tional law). .
French’s case, Rodney, 2 Op., 266, p. 9
(arrest).
French’s case, 8 Op., 473. p. 196 (public
minister). -
French subjects, Sundry, 8 Op., 396. p.
112 (extradition).
278
TABLE OF CASES.
French treaty of extradition, Formalities
under, 4 Op., 330. p. 238 (treaties with
particular states).
Frevall vs. Bache, 14 Pet., 95. p. 10
(awards). -
14 Pet., 95. p. 46 (claims).
14 Pet., 95. p. 240 (treaties with
particular states).
Friendschaft, The, 3 Wh., 14. p. 87 (do-
micile). - -
4 Wh., 105. p. 87 (domicile).
4 Wh., 105. p. 91 (enemy property).
Galpin, George, Claim of executor of, 5 Op.,
105, [227,399]. p. 43 (claims).
5 Op., 227. p. 138 (interest).
Galt, John M., Claim of representative of,
5 Op., 83, [84]. p. 42 (claims).
5 Op., 83, [84]. p. 92 (Executive
Departments).
5 Op., 83, [84]. p. 155 (legislative
construction).
Garland, Ex parte, 4 Wall., 333. p. 187
(pardons).
Gauntlet and the Alleganian, The, 7 Op.,
395. p. 64 (consular officers).
7 Op., 395. p. 213 (ship's papers).
Gelston vs. Hoyt, 3 Wh., 246. p. 169 (neu-
trality).
General Miramon and Marquis de la
Habana, The, 9 Op., 455, [456.] p. 76
(crimes).
9 Op., 455.
search).
Georgia, The, 7 Wall., 32. p. 31 (capture
and prize).
7 Wall., 32. p. 177 (neutrals).
1 Low., 96. p. 151 (international
}). 265 (visitation and
law).
- 1 Low, 96. p. 267 (war).
Georgia vs. Brailsford, 3 Dall., 1.
(treaties with particular states).
Georgiana and Lizzie Thompson, The, 9
Op., 140. p. 39 (civil war).
9 Op., 140. p. 218 (sovereignty).
Gerk's case, Maria. Theresa, 7 Op., 6.
110 (extradition).
Germany, Purchase of steamer by, 5 Op.,
92. p. 165 (neutrality).
Gerolt's letter, Baron, 8 Op., 62. p. 2 (age
of majority).
8 Op., 62. p. 156 (majority).
Giacomo, Angelo de, In re, 12 Blatch., 391.
p. 121 (extradition).
Gibbes's case, 13 Op., 19. p. 10 (awards).
Gibbes, R. W., Claim of, 13 Op., 19. p. 45
(claims).
13 Op., 19. p. 249 (treaties with
particular states).
Giddings's case, George H., 8 Op., 111. p.
222 (statutes).
Gifford vs. Kalloch, 3 Ware, 45. p. 208
(Seamen).
Gilson's case, 12 Op., 326. p. 113 (extra-
dition).
12 Op., 326. p. 238 (treaties with
particular states).
Gittings vs. Crawford, Taney’s Dec., 1. p.
68 (consular officers).
Taney’s Dec., 1.
consuls).
p. 243
D.
p. 127 (foreign
Glass vs. sloop Betsey, 3 Dall, 6, [16]. p.
126 (foreign consuls).
3 Dall., 6. p. 218 (sovereignty).
Goldsborough vs. United States, Taney's
Dec., 80. p. 54 (compensation).
Goodman’s case, 1 Ct. of Cls., 166. p. 55
(compensation).
Gordon vs. United States, 7 Wall., 188, p.
11 (awards).
7 Wall., 188. p. 46 (claims).
7 Wall., 188, p. 138 (interest).
Gourd’s case, 8 Op.,281. p. 186 (pardons).
Governeur's heirs vs. Robertson, 11 Wh.,
332. p. 5 (aliens).
Graham et al., Claim of Colonel, 5 Op., 671.
p. 43 (claims).
Graham vs. Stucken, 4 Blatch., 50. p. 128
(foreign consuls).
Grange, The, 1 Op., 32. p. 139 (interna-
tional law).
1 Op., 32. p. 178 (neutral territory).
Gratiot vs. United States, 15 Pet., 336. p.
54 (compensation).
15 Pet., 336. p. 77 (debts by and to
United States).
Gran Para, The, 7 Wh., 471. p. 29 (cap-
ture and prize).
7 Wh., 471,487. p. 170 (neutrality).
Gray Jacket, The, 5 Wall, 342, p. 91
(enemy property).
Greathouse's case, 2 Abbott U. S., 382.
p. 188 (pardons).
Green's case, 1 Op., 53. p. 82 (diplomatic
interference).
| Op., 53. p. 98 (expatriation).
1 Op., 53. p. 130 (foreign tribu-
mals).
—— 1 Op., 53. p. 160 (naturalized citi-
Zens). - -
Guadaloupe, Case of the governor of, 1
Op., 45. p. 191 (privilege from arrest.)
Guano, Exportation of, 11 Op., 514. p.
132 (Guano Islands).
Guano Islands, 9 Op., 30. p. 132 (Guano
Islands).
Guano Islands in the Pacific, 14 Op., 608.
p. 133 (Guano Islands).
Guillon's case, 5 Op., 43. p. 184 (pardons).
Hale's case, Charles, 14 Op., 189. p. 224
(steamer Virginius).
Hamilton vs. Dillin, 21 Wall.., 73. p. 136
(illicit intercourse).
—— 21 Wall, 73. p. 156 (limited inter-
course.)
Handy vs. Anthony, 5 Wh., 374. p. 23
(boundaries). -
Harcourt vs. Gaillard, 12 Wh., 523,
[527]. p. 245 (treaties with particular
states).
Harden vs. Fisher, 1 . Wh., 300. p. 244
(treaties with particular states).
Hart, The, 3 Wall., 559. p. 91 (enemy
property).
Hornet, The, 2 Abbott U. S., 35. p. 81
(de facto government).
Haver vs. Yaker, 9 Wall., 32. p. 149 (in-
ternational law).
—— 9 Wall., 32, p. 233 (treaties).
Haym vs. United States, 7 Ct. of Cls., 443.
p. 188 (pardons).
TABLE OF CASEs.
279
Heilbronn's case, 6 Op., 227, 237, 270, 290.
p. 109 (extradition). -
—— 6 Op., 227. p. 224 (suits).
— 7 Op., 396. p. 110 (extradition).
—— 7 Op., 396. p. 242 (treaties with
particular states).
• Heinrich's case, 14 Op., 154. p. 99 (expa-
triation).
14 Op., 154. p. 161 (naturalized
citizens). !
—— 14 Op., 154. p. 235 (treaties with
particular states). - -
Henderson vs. The Mayor of New York,
92 U. S. R., S. C., 259. p. 58 (constitu-
tional law).
Henfield's case, Whar. St. Tr., 49. p.
234 (treaties).
Henrich, Phillip, In re, 5 Blatch., 414. p.
117 (extradition).
Henshaw vs. Bissell, 18 Wall., 264.
(treaties with particular states).
Hermon, The, 1 Low., 515. p. 210 (sea-
men). -
Hickey’s lessee v8. Stewart, 3 How., 760.
p. 261 (treaties with particular states).
Higginson v8. Mein, 4 Cr., 415. p. 244
(treaties with particular states).
Hiram, The, 8 Cr., 444. p. 134 (illicit in-
tercourse).
— 1 Wh., 440. p. 134 (illicit inter-
course). -
Hooe's case, 4 Op., 8. p. 184 (pardons).
Holmes vs. Jennison, 14 Pet., 540. pp.
114, 115 (extradition).
Hooper's case, Mr., 9 Op., 432. p. 183
(official acts).
Hopkirk vs. Bell, 3 Cr., 454 [458]. p.
243 (treaties with particular. states).
Horn vs. Lockhart, 17 Wall., 570 [580].
p. 79 (de facto government).
Hornet, Case of the, 13 Op., 541. p. 168
(neutrality). -
Hudson vs. Guestier, 4 Cr., 293 [295, 296].
p. 173 (theutrals). -
Hughes vs. Edwards, 9 Wh, 489. p. 4.
• (aliens).
9 Wh., 489. p. 244 (treaties with
particular states). -
Hughston’s case, 10 Op., 250. p. 53 (com-
pensation).
10 Op., 250. p. 60 (consular courts).
Hulseman’s servant, Chevalier, 9 Op., 7. p.
196 (public minister).
Humboldt, The schooner, 7 Op., 349, p. 205
(Seamen).
Hunt's case, 3 Op., 82. p. 222 (statutes).
Hutchinson, Kohl & Co., 4 Op., 302. p. 2
(Alaska).
14 Op., 302. p. 254 (treaties with
particular states).
Huygens's application, Chevalier, 2 Op.,
452, p. 106 (extradition).
Hylton's lessee vs. Brown, 1 Wash., 344. p.
233 (treaties).
Imaum of Muscat, Presents to, 4 Op., 358.
p. 71 (contingent expenses of foreign in-
tercourse).
Immigration, Commissioners of, vs. The
North German Lloyds, 92, U. S. R., S. C.,
259. p. 58 (constitutional law).
p. 248 | -
Invasion, Claims of Texas for, 4 Op., 332.
Indian, Case of an, 5 Op., 368, p. 185 (par-
dons.) *
Indian subagent, Case of .an, 8 Op., 7. p.
224 (sureties). -
º Choctaw, 13 Op., 354. p. 229 (trea-
ties). -
Indians, The Winnebago, 3 Op., 471. p.
228 (treaties). -
Indorsement of bills, 1 Op., 188, p. 13 (bills
of exchange).
Inheritance by alien Netherlanders, 12
Op., 5. p. 248 (treaties with particular
States). Af
Inquiries, Reply to the President's, 14 Op.,
295. p. 86 (domicile).
Insurance Company, American, vs. Canter,
1 Pet., 542, p. 56 (conquest).
1 Pet., 542 [544]. p. 124 (Florida).
1 Pet., 511 [542, 544]. p. 258 (trea-
ties with particular states).
p. 41 (Claims).
Invincible, The Texan schooner, 3 Op., 120.
p. 76 (crimes).
Iris, The, Claim of captain of, 5 Op., 116.
p. 201 (salvage).
Isthmus of Panama, 9 Op., 391. p. 23
(boundaries).
Isthmus of Panama, Neutrality of, 11 Op.,
67, 391. p. 152 (Isthmus of Panama).
11 Op., 67, 391. p. 249 (treaties with
particular states).
Jackson's case, 9 Op., 261. p. 85 (diplo-
matic officers).
Janes and others, Case of, 10 Op., 416. p.
1 (advertisements). -
10 Op., 416. p. 74 (coolie trade).
Japan, Consular courts in, 11 Op., 474. p.
60 (consular courts).
11 Op., 474. p. 247 (treaties with
particular states).
Jerker vs. Montgomery, 13 How., 498. p.
30 (capture and prize).
13 How, 515. p. 49 (commanding
general).
13 How, 498 [516]. p. 149 (inter-
national law).
18 How. 110, [112]. p. 135 (illicit
intercourse).
18 How., 112. p. 149 (international
law).
Jewels of the Princess of Orange, 2 Op.,
482, 496. pp. 152, 153 (jewels of the
Princess of Orange). r
2 Op., 482. p. 190 (penalties and
forfeitures).
J. J. Cobb, The bark, 9 Op., 374, p. 201
(Salvage).
John, British ship, 1 Op., 78. p. 25 (cãp-
ture and prize).
—— 1 Op., 78, p. 140 (international
law). -
Johnson's and Graham’s lessee v8. McIn-
tosh, 8 Wh., 543. p. 86 (discovery).
——— 8 Wh., 535. p. 245 (treaties with
particular states).
Johnson's Islands, Case of, 9 Op., 364. p.
132 (Guano Islands).
Jones's case, William, 1 Op., 68. p. 105
(extradition).
280
TABLE OF CASES.
Lamar vs. Browne, 92 U. S. R., S. C., 187.
p. 137 (insurrection).
La Pensée, Case of the, 1 Op., 534, p. 214
(slaves).
Lapeyre vs. United States, 17 Wall., 191.
p. 192 (proclamation).
Larned's case, 2 Op., 504. p. 14 (bills of
exchange). -
Lasell’s case, H., 5 Op., 87. p. 42 (claims).
5 Op., 87. p. 93 (Executive Depart-
ments).
Lattimer v8. Poteet, 14 Pet., 14. p. 23
(boundaries).
14 Pet., 14. p. 231 (treaties).
Laventure's case, 10 Op., 507, p. 229
(treaties).
Lawrence's case, Edward, 12 Op.; 1. p.
67 (consular officers).
Op., July, 1875. p. 114 (extradi-
tion). -
Op., July, 1875. p. 243 (treaties
with particular states).
C. C. So. Dist. N. Y., March, 1876.
p. 246 (treaties with particular states).
Leavenworth’s account, 10 Op., 216. p.
70 (contingent expenses).
Lee v8. Monroe and Thornton, 7 Cr., 366.
p. 2 (agents).
Lee vs. Rogers, 2 Sawyer, 549, p. 3 (alien
Jones's case, William, 1 Op., 68.. p. 140
(international law).
Jones vs. Sears, 2 Sprague, 43. p. 209 (sea-
men).
Jones vs. Walker, 2 Paine, 688. pp. 233,
234 (treaties).
Jordan vs. Williams, 1 Curtis, 69 [85]. p.
69 (consular officers).
—— 1 Curtis, 69. p. 208 (seamen).
Joseph, The, 8 Cr., 451. p. 27 (capture and
prize).
—— 1 Gall, 545. p. 88 (domicile).
— 8 Cr., 451 [452]. p. 134 (illicit in-
tercourse).
— 1 Gall., 545, p. 268 (war).
Joseph’s application, Mr., 7 Op., 643. p. 238
(treaties with particular states).
Judge at St. Catherine's, Brazil, Case of
the, 13 Op., 553. p. 45 (claims).
Judicial authority in China, 7 Op., 495. p.
59 (consular courts),
—— 7 Op., 495 [511]. p. 64 (consular
officers). ſº
—— 7 Op., 495. p. 102 (exterritorial-
ity.)
— 7 Op., 495.
7 Op., 495.
particular States).
Judicial powers of consul at Honolulu, 11
Op., 508, p. 67 (consular officers).
Judson vs. Corcoran, 17 How., 612, p. 10
p. 154 (jurisdiction).
p. 235 (treaties with
(awards). &
17 How., 614, p. 46 (claims).
Julia, The, 8 Cr., 181. p. 134 (illicit inter-
course).
Julia, The, and cargo, 1 Gall., 594 [601].
p. 136 (illicit intercourse).
Jurisdiction of consular courts in Turkey,
9 Op., 296. p. 59 (consular courts).
Kaine, In re, 14 How., 103. p. 116 (extra-
dition).
Kansas, Pre-emptions in, 6 Op., 658, p. 228
(treaties).
Ravanagh's case, 10 Op.,229. p. 179 (office).
Kendall v8. Stokes, 3 How., 87. p. 96 (Ex-
ecutive Departments).
Kennett vs. Chambers, 14 How., 38. p. 171
(neutrality).
King of Spain, The, vs. Oliver, 2 Wash.,
429. p. 130 (foreign states).
Knap's case, Charles, 6 Op., 406, p. 1 (ad-
vertisements).
— 6 Op., 406. p. 73 (contracts).
La Amistad de Rues, 5 Wh., 385. p. 147
(international law).
—— 5 Wh., 385. p. 169 (neutrality).
La Conception, 6 Wh., 235. p. 29 (capture
and prize).
- 6 Wh., 235. p. 169 (neutrality).
La Jeune Eugénie, 1 Op., 504. p. 97 (ex-
ecutive interference).
Lake Erie pirates, 11 Op., 114.
(crimes). -
—— 11 Op., 114, p. 113 (extradition).
—— 11 Op., 114, p. 243 (treatles with
particular states).
Lamar vs. Browne, 92 U. S. R., S. C., 187.
p. 13 (bills of exchange).
92 U. S. R., S. C., 187, p. 24 (cap-
ture).
p. 76
enemy).
Leitensdorfer et al. vs. Webb, 20 How.,
176. p. 56 (conquest).
• Leoni's case, Charles, 14 Op., 599. p. 187
(pardons).
Lessee of Gordon v8. Kerr, 1 Wash., 322.
p. 233 (treaties). -
Letombe's case, 1 Op., 77. p. 97 (execu-
tive interference).
1 Op., 77. p. 124 (foreign consuls).
1 Op., 77. p. 140 (international
law). -
1 Op., 77. p. 237 (treaties with par-
ticular states).
Leviathan, The, 12 Op., 289. p. 202 (sal-
vage).
Levy’s case, 14 Op., 509. p. 159 (natural-
ization).
Libertador, The, 2 Op., 4. p. 163 (neu-
trality).
2 Op., 4. p. 236 (treaties with par-
ticular states).
Lilla, The, 2 Sprague, 177. p. 32 (capture
and prize). -
2 Sprague, 177. p. 69 (consular
officers). p
2 Sprague, 177. p. 127 (foreign con-
Suls).
Lobsiger's case, 5 Ct. of Cls., 687. p. 48
(claims).
5 Ct. of Cls., 687. p. 263 (treaties
with particular states).
London Packet, The, 1 Mason, 14, p. 68
(consular officers).
pºse
5 Wh., 132, p. 91 (enemy prop-
p. 17
erty).
Lone, Case of the, 3 Op., 377.
(blockade).
Lord Lyons's communication concerning
prizes, 10 Op., 519. p. 26 (capture and
prize).
TABLE
281
OF CASES.
Lord Lyons, 10 Op., 519. p. 144 (interna-
tional law). -
Louisiana, The, 2 Pet. Adm., 268. p. 210
(Seamen).
Lucy Penniman, The, 4 Op., 241. p. 216
(slave trade).
Luscom vs. Osgood, 1 Sprague, 82. p. 69
(consular officers). •
1 Sprague, 82. p. 208 (seamen).
Lyell vs. Goodwin, 4 McLean, 29. p. 198
(public minister).
Macdonnell, In re, 11.Blatch., 79, 170. pp.
119, 121 (extradition). 3.
11 Blatch., 170. p. 121 (extradi-
tion).
Madrid, Case of the minister to, 2 Op.,453.
p. 84 (diplomatic officers). -
Mager vs. Grima, 8 How.,490. p. 5 (aliens).
Mahoney vs. United States, 10 Wall., 62.
p. 68 (consular officers). -
Maisonnaire vs. Keating, 2 Gall.,325 [335].
p. 32 (capture and prize).
2 Gall., 335. p. 73 (contraband).
Maley vs. Shatfuck, 3 Cr., 488, p. 173
(neutrals).
3 Cr., 488, p. 266 (visitation and
Search).
Maria, Case of the, 1 Op.,509. p. 190 (pen-
alties and forfeitures).
1 Op., 509. p. 211 (seizure).
Marianna Flora, The, 11 Wh., 40, 41. p.
77 (crimes).
—— 11 Wh., 40,41.
tional law). -
11. Wh., 1. p. 267 (visitation and
search).
Marriages, Celebration of, 7 Op., 18, p. 63
(consular officers).
7 Op., 18 [20].
ality). s
7 Op., 18 [20]. p. 142 (interna-
tional law).
7 Op., 18. p. 157 (marriages).
Marriage, Effect of, 14.Op., 402, p. 36 (cit-
izenship).
Marie, Jules, Case of, 5 Op., 69, p. 142 (in-
ternational law).
5 Op., 69. p. 195 (public minister).
Marshal of Indiana, Case of the, 6 Op.,
220. p. 223 (suits). -
Marshal in Pennsylvania, Case of, 6 Op.,
500. p. 224 (suits). •
Martin’s case, 3 Op., 418. p. 184 (pardons).
Mary and Susan, The, 1 Wh., 46. p. 86
(domicile).
1 Wh., 46. p. 90 (enemy property).
p. 148 (interna-
p. 102 (exterritori-
Matthews vs. Offley, 3 Sumner, 115. p. 69.
(consular officers).
3 Sumner, 115. p. 207 (seamen).
Maximilian, Arms for, 11 Op., 451. p. 167
(neutrality),
Mayor of Philadelphia, case of a passport
issued by, 9 Op., 350. p. 189 (pass-
ports).
McDonogh vs. Millaudon, 3 How., 693. p.
240 (treaties with particular states).
McGoon, R. H., Case of, 13 Op., 456, p. 95
(Executive Departments). -
McIlvaine vs. Coxe's lessee, 4 Cr., 209. p.
244 (treaties with particular states).
McKay vs. Campbell, 2 Sawyer, 119, p.
6 (allegiance). -
2 Sawyer, 118. p. 38 (citizenship).
2 Sawyer, 118. p. 247 (treaties with
particular states).
McKay vs. Garcia, 6 Bened., 556. p. 128
(foreign consuls).
McKinney vs. Saviego, 18 How., 235. p.
248 (treaties with particular states).
Meade's case, 2 Ct. of Cls, 228; 9 Wall.,
691. p. 11 (awards).
Meade vs. United States, 9 Wall., 691. p.
262 (treaties with particular states).
Mechanics and Traders' Bank v3. Union
Bank, 22 Wall., 276. p. 49 (commanding
general).
22 Wall., 276. p. 57 (conquest).
——22 Wall., 276. p. 58 (constitutional
law).
—— 22 Wall., 276.
courts).
Memphis, The, Blatch. Pr. C., 260. p. 22
(blockade).
p. 158 (military
—— Blatch. Pr. C., 260. p. 25 (capture).
Mercator, The, 1 Op., 106.
and prize).
— 1 Op., 106 [107]. p. 137 (injuries).
— 1 Op., 106 [107]... p. 140 (interna-
tional law).
Merino, The, 9 Wh., 391.
trade). - g
Merry’s case, Mr., 1 Op.,.141. p. 194 (pub-
lic minister).
Mesilla treaty, Construction of, 7 Op., 582.
p. 85 (diplomatic officers).
— 7 Op., 582. p. 143 (international
law). - -
—— 7 Op., 582, p. 247 (treaties with
particular states). -
Mesilla treaty, Drafts under, 7 Op., 599. p.
158 (Mesilla treaty).
— 7 Op., 599. p. 247 (treaties with
particular states). -
Meteor, The, 12 Op., 2. p. 81 (Departments
of Government).
12 Op., 2. p. 98 (Executive inter-
ference). -
-—— 11 Op., 444. p. 167 (neutrality).
p. 25 (capture
p. 217 (slave-
— 12 Op., 65. p. 201 (safe-conduct).
—— 12 Op., 65, p. 211 (Secretary of
State).
Metzger, In the matter of, 5 How., 176. p.
115 (extradition). -
Mexico, Case of commissioners under trea-
ty with, 7 Op., 582. p. 139 (international
commissioners).
Mexico, Case of schooners built for, 3 Op.,
738, 741. p. 164 (neutrality.)
Mexico, enlistment of seamen for, 4 Op.,
336. p. 165 (neutrality).
Midshipmen, dismissed, Case of, 5 Op., 259.
p. 184 (pardons).
Minister, American, Case of an, 13 Op., 537.
p. 85 (diplomatic officers).
Minister, Claim of the French, 2 Op., 378.
p. 125 (foreign consuls). -
Minister to Chili, Case of the, 1 Op., 620.
p. 83 (diplomatic officers).
Minister to Colombia, Case of the, 2 Op.,
204, p. 84 (diplomatic officers). -
282
OF CASES.
TABLE
Minister at Rio, Case of Mr. Wise, 4 Op.,
506. p. 14 (bills of exchange).
4 Op., 506. p. 50 (compensation).
Minister to Venezuela, The, 12 Op., 457. p.
179 (office).
Ministers, Ambassadors and public, 7 Op.,
186. p. 84 (diplomatic officers).
Ministers, &c., of American republics, Case
of, 7 Op., 582. p. 195 (public minister).
Mitchell vs. United States, 9 Pet., 711. p.
124 (Florida).
9 Pet., 734, p. 148 (international
law).
9 Pet., 711. p. 231 (treaties).
9 Pet., 734. p. 259 (treaties with
particular states).
Molina's case, 6 Cf. of Cls., 269. . p. 48
(claims).
Montano's case, 11 Op., 52. p. 10 (awards).
Monte Allegre, The, 7 Wh., 520. p. 170
(neutrality).
Montell vs. United States, Taney’s Dec.,
24. p. 207 (seamen).
Montgomery vs. United States, 15 Wall.,
395 [400]. p. 136 (illicit intercourse).
Moodie vs. The ship Alfred, 3 Dall., 307.
p. 168 (neutrality).
Moodie vs. The ship Phoebe Anne, 3 Dall.,
319. p. 168 (neutrality). s
3 Dall., 319. p. 238 (treaties with
particular States).
Morris vs. Cornell, 1 Sprague, 62. p. 69
(consular officers).
1 Sprague, 62. p. 209 (seamen).
Moslem, The, Olcott, 289. p. 209 (seamen).
Muller, Taugot, Case of, 10 Op., 501, p.
112 (extradition).
Murdock vs. City of Memphis, 20 Wall.,
590. p. 223 (statutes).
Murray vs. The schooner Charming Betsy,
2 Cr., 64 [120]. p. 101 (expatriation).
2 Cr., 118. p. 145 (international
law). -
2 Cr., 118, p. 223 (statutes).
Muscat, Presents to the Imaum of, 4 Op.,
358. . p. 71 (contingent expenses of for-
eign intercourse).
Myers vs. United States, 1 McLean, 493.
p. 225 (Sureties).
Nash, Tuomas, alias Robins's case, Bee's
Adm., 267, p. 116 (extradition).
Nashville, Postmaster at, 13 Op., 308. p.
181 (office).
Nassau, consul at, Case of, 4 Op., 390. p.
62 (consular officers).
4 Op., 390. p. 213 (ship's papers).
Nelson vs. United States, 1 Pet. C. C., 235.
p. 155 (letters rogatory).
Nereide, The, 9 Cr., 388, p. 90 (enemy
property).
t 9 Cr., 388 [418].
tional law).
9 Cr., 388. pp. 161, 162 (neutral
goods).
9 Cr., 388. p. 173 (neutrals).
9 Cr., 388, p. 230 (treaties).
9 Cr., 388. p. 256 (treaties with
particular states).
9 Cr., 388, p. 266 (visitation and
Search). -
p. 147 (interna-
Nereyda, The, 8Wh., 108 [168]. p. 30 (cap-
ture and prize).
8Wh., 108 [169]. p. 175 (neutrals).
Neutrality act, 13 Op., 177. p. 168 (neu-
trality).
Neutrality of the Isthmus of Panama, 11
Op., 67, 391. p. 152 (Isthmus of Pan-
ama).
11 Op., 67. p. 249, (treaties with
particular states).
New York and Havre steamers, 9 Op., 256.
p. 65 (consular officers).
New Granada, Case of James Semple,
chargé to, 4 Op., 295. p. 13 (bills of ex-
change).
New Mexico, Case of chief justice of, 6
Op., 87. p. 179 (office). | i
New Orleans, City of, vs. Armas and Cu-
cullu, 9 Pet., 223, p. 239 (treaties with
particular states).
New Orleans vs. Steamship Company, 20
Wall., 387 [394]. p. 57 (conquest).
New Orleans vs. United States, 10 Pet.,
663 [737]. p. 239 (treaties with partic-
ular states).
New South Wales, Seamen’s act of, 6 Op.,
209. p. 93 (executive authority).
Nieto vs. Clark, 1 Cliff., 145. p. 208 (sea-
men).
Nigre, The pirate, 1 Op., 85. p. 75 (crimes).
Niobe, Deserters from the, 12 Op., 463. p.
206 (seamen).
12 Op., 463. p. 252 (treaties with
particular states).
Nock’s case, 2 Ct. of Cls, 451.
ecutive interference). -
Norfolk, British consul at, Case of, 1 Op.,
p.97 (ex-
41. p. 62 (consular officers).
1 Op., 41. p. 124 (foreign consuls).
1 Op., 41. p. 139 (international
law).
1 Op., 41. p. 193 (public minister).
Norfolk, collector at, Case of, 1 Op., 337,
p. 129 (foreign ships of war).
Norse American Line of Steamers, 14 Op.,
468. p. 263 (treaties with particular
States).
North German Lloyd Steamship Company,
14 Op., 530. p. 247 (treaties with par-
ticular states).
Nuestra Señora de la Caridad, 4 Wh., 497.
p. 40 (civil war).
4 Wh., 497, p. 169 (neutrality).
4 Wh., 497, p. 257 (treaties with
particular states).
Nuestra Señora de Regla, The, 17 Wall.,
30. p. 32 (capture and prize).
17 Wall., 29. p. 83 (diplomatic in-
terference). .
Nueva Anna and Liebre, The, 6 Wh., 193.
p. 12 (belligerents).
6 Wh., 193. p. 29 (capture and
prize).
6 Wh., 193. p. 40 (civil war).
Oaths of clerks in Departments, 12 Op.,
521. p. 48 (clerks).
12 Op., 521. p. 95 (Executive De-
partments).
Oldfield vs. Marriott, 10 How., 146.
252 (treaties with particular states).
TABLE OF CASES.
283
Oliver vs. Alexander, 6 Pet., 145, p. 206
(Seamen).
Olivera vs. Union Insurance Company, 3
Wh., 194. p. 18 (blockade).
3 Wh., 194. p. 175 (neutrals).
Ontario and the Thomas, The, 3 Op., 405.
p. 193 (public armed vessels).
Open boat and cargo, An, Ware, 26. p.
246 (treaties with particular states).
Oregon, district attorney for, Case of, 14
Op., 325 [326]. p. 206 (seamen).
Orr vs. Hodgson, 4 Wh., 453. p. 244, 245
(treaties with particular states).
Osborn vs. United States, 91 U. S. R., S. C.,
474. p. 188 (pardons).
Otterbourg vs. United States, 5 Ct. of Cls.,
430. p. 70 (consular officers). .
Ouachita, The, Blatch. Pr. C., 306. p. 25
(capture).
Owings vs. Norwood’s lessee, 5 Cr., 344.
p. 244 (treaties with particular states).
Pagan’s case, 1 Op., 25. p. 82 (diplomatic
interference).
1 Op., 30. p. 139 (international
law).
—— 1 Op., 30. p. 200 (reprisals).
Palledo, The, 3 Ware, 321. p. 208 (sea-
men).
Pamela, The brig, 2 Op., 418. p. 62 (con-
sular officers).
—— 2 Op., 418. p. 203 (Seamen).
Panama, Isthmus of, 9 Op., 391. p. 23
(boundaries). **
—— 11 Op., 391. p. 249 (treaties with
particular States).
Panama transit tax, 13 Op., 547. p. 45
(claims).
—— 13 Op., 547. p. 83 (diplomatic in-
terference).
—— 13 Op., 547. p. 250 (treaties with
particular states).
Pardon, Effect of, 9 Op., 478, p. 34 (citi-
zenship).
— 9 Op., 478, p. 186 (pardons).
10 Op., 452. p. 17 (blockade).
—— 10 Op., 452. p. 26 (capture and
prize).
— 12 Op., 547. p. 187 (pardons).
Pardon, power of, 1 Op., 342. p. 184
(pardons).
Pardoning power, 7 Op., 561, p. 185 (par-
dons).
— 11 Op., 227. p. 186 (pardons).
Paris Exposition, 12 Op., 9. p. 8 (appro-
priations).
12 Op.,9. p. 190 (payment in coin).
12 Op., 9. p. 211 (Secretary of
State). -
Passport issued by mayor of Philadelphia,
Case of, 9 Op., 350. p. 189 (passports).
Passports, 10 Op., 517. p. 189 (passports).
Passports, Case of five residents of Cura-
goa, 13 Op., 89. p. 189 (passports).
Passports, citizens of Texas, 13 Op., 397.
p. 190 (passports).
Pay of commissioners and advocate of
Spanish Commission, 13 Op., 415. p.
53 (compensation).
Payment of drafts, 7 Op., 599. p. 15
(bills of exchange).
Payment of drafts, 7 Op., 599. p. 158 (Me-
silla treaty). *
Payments under treaties, 11 Op., 52. p. 252
(treaties with particular states).
Pº The, 5 Wall., 574. p. 21 (block-
ade).
Peete vs. Morgan, 19 Wall., 581. p. 226
(tonnage tax). -
Peggy, The schooner, 1 Op., 114, 119, p.
26 (capture and prize).
—— 1 Op., 114, 119. p. 237 (treaties
with particular states).
Perkins claim, 9 Op., 338. p. 44 (claims).
Op., 338. p. 211 (Secretary of
State).
Perrin's case, 4 Ct. of Cls., 543. p. 47
(claims).
12 Wall., 315. p. 47 (claims).
Peterhoff, The, 5 Wall., 28. p. 20 (block-
ade).
5 Wall., 28. pp. 72, 73 (contra-
band).
5 Wall., 28. p. 177 (neutrals).
5 Wall., 51. p. 248 (treaties with
particular states).
Philip Hone, Case of the, 4 Op., 185. p.
204 (seamen). -
Phoenix, The, 2 Op., 365. p. 216 (slave-
trade). -
Pickett's case, 9 Op., 496. p. 52 (compen-
sation).
Pine lumber, 4 Blatch., 182, p. 246 (trea-
ties with particular states).
Pirate Nigre, The, 1 Op., 85. p. 75 (crimes).
Pirates, Case of certain, 1 Op., 359. p.
184 (pardons).
Pirates, Lake Erie, 11 Op., 114. p. 76
(crimes).
11 Op., 114. p. 113 (extradition).
—— 11 Op., 114. p. 243 (treaties with
particular states).
Pitt, The, 1 Op., 366. p. 97 (executive
interference).
Pizarro, The, 2 Wh., 227. p. 131 (free
goods). -
2 Wh., 227. p. 256 (treaties with
particular states).
Plattsburgh, The, 10 Wh., 133. p. 217
(slave trade).
Pollard's lessee vs. Files, 2 How, 591
[602]. p. 260 (treaties with particular
States).
Pollard's lessee vs. Hagan, 3 How., 225.
p. 219 (sovereignty).
—— 3 How., 225. p. 260, 261 (treaties
with particular states).
3 How., 225, p. 232 (treaties).
Porlier's case, 5 Op., 716. p. 34 (citizen-
ship).
5 Op., 716, p. 242 (treaties with
particular states).
Port Sarnia, American steamers at, 11 Op.,
73. p. 66 (consular officers).
11 Op., 72. p. 213 (ship's papers).
Portuguese brig, Case of a, 1 Op., 111. p.
25 (capture and prize).
1 Op., 111. p. 237 (treaties with
particular states).
Portuguese minister, Case of, 2 Op., 290.
p. 194 (public minister).
284.
TABLE OF CASES.
Portuguese mission, The, 12 Op., 275, p.
85 (diplomatic officers).
Portuguese seamen, Case of two, 2 Op.,
559. p. 106 (extradition).
Post-Office Department, Appropriation act,
8 Op., 39. p. 94 (Executive Depart-
ments). -
8 Op., 39. p. 222 (statutes).
Postmaster at Nashville, 13 Op., 308, p.
181 (office).
Postmaster-General v8. Munger, 2 Paine,
189. p. 225 (sureties).
Postmaster-General vs. Reeder, 4 Wash.,
678. p. 225 (sureties).
Pray’s case, 10 Ct. of Cls., 454, p. 210
(seamen). -
Pre-emptions in Kansas, 6 Op., 658, p.
228 (treaties).
Presents to the Imaum of Muscat, 4 Op.,
358. . p. 71 (contingent expenses of for-
eign intercourse).
President, Power of, 5 Op., 729, p. 185
(pardons).
President, Power of, as to legislation of
foreign country, 6 Op., 209. p. 204
(Seamen).
President, Power of, to fill vacancies, 2
Op., 525. p. 179 (office).
President, Relation of, to Executive De-
partments, 7 Op., 453. p. 94 (Executive
Departments).
President, the, Case of, 7 Op., 123. p. 11,
12 (belligerents).
President and Prize, The, 7 Op., 122. p.
102 (exterritoriality).
7 Op., 122. p. 143 (international
law).
7 Op., 122, p. 173 (neutrals).
President’s inquiries, Reply to, 14 Op.,
295. p. 86 (domicile). -
14 Op., 295. p. 161 (naturalized
citizens). -
President's power, 12 Op., 81. p. 187
(pardons).
President’s questions, Reply to, 14 Op.,
295. p. 36 (citizenship).
14 Op., 295. p. 100 (expatriation).
Preto, Mrs., and daughter, Case of, 10 Op.,
321. p. 35 (citizenship).
Prevost vs. Creneaux, 19 How., 1.
(treaties with particular states).
Princess of Orange, Jewels of the, 2 Op.,
482. pp. 152, 153 (jewels of the Princess
of Orange).
2 Op., 482. p. 190 (penalties and
forfeitures).
Prisoners, Case of the British, 1 Wood. &
M., 66. p. 117 (extradition).
— 1 Wood, & M., 66. p. 246 (treaties
with particular states).
Prize cases, 2 Black, 635. p. 18 (block-
ade).
2 Black, 635.
p. 240
p. 41 (civil war).
2 Black, 635. p. 175 (neutrals).
2 Black, 635. p. 267 (war).
Prize ships, Reparation of, 1 Op., 67. p.
163 (neutrality).
1 Op., 67. p. 241 (treaties with
particular states).
Prizes, Lord Lyons's communication con-
cerning, 10 Op., 519, p. 26 (capture and
prize).
10 Op., 519. p. 144 (international
law).
Property of United States, Recovery of,
11 Op., 292. p. 192 (property of United
States).
Public officers—Extradition, 8 Op., 106.
p. 238 (treaties with particular states).
Purchase of ships, Case of, 7 Op., 538. p.
167 (neutrality).
Purchase of ships, Letter of British min-
ister as to, 6 Op., 638, p. 142 (inter-
national law). -
6 Op., 638, p. 165 (neutrality).
Purchase of steamer by Germany, 5 Op.,
92, p. 165 (neutrality).
Queyrouze's case, 7 Ct. of Cls., 269. p. 48
(claims).
Quintero, The, 1 Low., 38. p. 209 (seamen).
Rapid, The, 8 Cr., 155, [162.1 p. 27 (cap-
ture and prize).
8 Cr., 155. p. 134 (illicit inter-
course).
- 8 Cr., 155, [162]. p. 147 (interna-
tional law).
Rapid and cargo, The schooner, 1 Gall.,
295, [303]. p. 136 (illicit intercourse).
1 Gall, 303. p. 233 (treaties).
1 Gall., 303. p. 268 (war).
Raymond’s case, 6 Op., 393. p. 185 (par- .
dons).
Records, Depository of, 2 Op., 515.
(treaties with particular states).
2 Op., 515. p. 221 (State Depart-
ment).
Reciprocity treaty with Great Britain, 6
Op., 748. p. 242 (treaties with particu-
lar states).
Register of wills, Case of the, 1 Op. 212.
p. 178 (office). N
Re-instating suspended officer, 13 Op.,221.
p. 180 (office).
Reparation of prize-ships, 1 Op., 67. p.
163 (neutrality).
1 Op., 67. p. 241 (treaties with par-
ticular states).
Resolutions of one House, Effect of, 6 Op.,
680. p. 200 (resolutions of Congress).
Fº The, 2 Sprague, 107. p. 21 (block-
3 (162 ),
p. 255 .
2 Sprague, 107. p. 32 (capture and
prize).
Review, The right of 2 Op., 8, p. 93
(Executive Departments).
Reynolds's case, 14 Op., 20. p. 187 (par-
dons).
Rights of seamen, 1 Op., 593. p. 203 (sea-
men). -
Rio Bravo, Boundaries on the, 8 Op., 175.
p. 22 (boundaries).
Rio Grande, Captures on the, 11 Op., 117.
p. 81 (departments of Government).
11 Op., 117. p. 98 (executive in-
terference).
Rio, minister at, Case of Mr. Wise, 4 Op.,
506, p. 14 (bills of exchange).
4 Op., 506, p. 50. (compensation).
TABLE
285
OF CASES.
Ritter's case, 7 Op., 342. p. 63 (consular
officers). -
R. R. Cuyler, The, 12 Op., 113. p. 168
(neutrality). -
Robbins's case, 7 Op., 760. p. 185 (par-
dons).
Robinson vs. Minor, 10 How., 627. p. 261
(treaties with particular states).
Robson v8. The Huntress, 2 Wall., jr., 59.
p. 69 (consular officers).
2 Wall., jr., 59. p. 127 (foreign
consuls).
2 Wall., jr., 59. p. 202 (salvage).
Rogers vs. The Amado, 1 Newb. Adm., 400.
p. 3 (alien enemy). -
1 Newb. Adm., 400. p. 32 (capture
and prize).
1 Newb. Adm., 400. p. 70 (consular
officers).
Ropes vs. Clinch, 8 Blatch., 304. p. 234.
(treaties).
8. Blatch., 304. p. 254 (treaties with
particular states). w
Rosa's case, 1 Op., 68. p. 129 (foreign offi-
cers).
1 Op., 68, p. 191 (privilege from
1 Op., 68. p. 254 (treaties with
particular states). -
Rose v3. Himely, 4 Cr., 241 [272]. p. 39
(civil war).
4 Cr., 241.
law).
— 4 Cr., 241.
p. 145 (international
p. 212 (seizure).
ty). *
Ross, Ex parte, 2 Bond, 252. p. 117 (extra-
dition).
2 Bond, 252. p. 246 (treaties with
particular states).
Rothschild’s case, 6 Ct. of Cls., 204, p. 48
(claims).
Rugen, The, 1 Wh., 61. p. 12 (bellig-
p. 174 (neutrals).
erents).
1 Wh., 61 [66]. I
Sachs’s case, Richard, 6 Op., 761. p. 110
(extradition).
6 Op., 761. p. 252 (treaties with
particular states).
Saga, the Danish ship, Case of a deserter
from, 6 Op., 148, p. 108 (extradition).
Op., 148. p. 123 (favored na-
tions).
6 Op., 148, p. 204 (seamen).
6 Op., 148, p. 228 (treaties).
—— 6 Op., 148, p. 236 (treaties with
particular states).
Sageman vs. The Brandywine, 1 Newb.
Adm., 5. p. 210 (seamen).
Sagory vs. Wissman, 2 Bened., 240. p. 128
(foreign consuls).
Saint Catherine's, Brazil, Case of the judge
at, 13 Op., 553. p. 45 (claims).
Saint Lawrence, The, 9 Cr., 120. p. 134
(illicit intercourse).
Saint Luke's Hospital vs. Barclay, 3 Blatch.,
259. p. 128 (foreign consuls).
Salary of ad-interim officer, 13 Op., 7. p.
53 (compensation).
4 Cr., 241 [279]. p. 218 (sºvereign-
Sale of an English ship, 1 Op., 190. p. 163
(neutrality.)
Sale of ships to the British, 1 Op., 61. p.
140 (international law).
1 Op., 61. p. 162 (neutrality).
Sandford's case, John, 6 Op., 20. p. 185
(pardons).
San José Indiano, The, 2 Gall., 268. p. 92
(enemy property).
2 Gall., 268. p. 178 (neutrals).
Santa Maria, The, 7 Wh., 490. p. 170
(neutrality).
Santissima Trinidad, The, 1 Brock, 478.
p. 38 (citizenship).
1 Brock.,478. p. 101 (expatriation).
—— 1 Brock., 478, p. 172 (neutrality).
1 Brock., 478. p. 177 (neutrals).
7. Wh., 283 [337]. p. 41 (civil war).
7 Wh., 283. p. 104 (exterritoriality).
7 Wh., 283 [340]. p. 147 (interna-
tional law).
7. Wh., 283. p. 159 (national char-
acter).
7 Wh., 283. p. 169 (neutrality).
7 Wh., 283. p. 257 (treaties with
particular states).
Santos, José Ferreira dos, Case of, 2 Brock.,
493. p. 117 (extradition).
2 Brock., 493. p. 151 (internaticnal
law).
Sapphire, The, 11 Wall., 164, p. 130 (for-
eign States). -
Sarah Starr, The, Blatch. Pr. C., 69. p. 246
(treaties with particular states).
Sartiges, Comte de, Request of, 8 Op., 106.
p. 111 (extradition).
Schenck’s case, Op. April 12, 1876. p. 182
(office).
Schooners built for Mexico, Case of, 3 Op.,
734, 741. p. 164 (neutrality).
Schwartz v8. Ins. Co. of N. America, 3
Wash., 117. . p. 150 (international law).
—— 3 Wash., 117. p. 178 (neutrals).
Scott vs. United States, 8 Ct. of Cls., 457.
p. 188 (pardons). -
Seamen's act of New South Wales, 6 Op.,
209. p. 93 (executive authority).
Seamen, American, Question of ransom of,
6 Op., 126. p. 204 (seamen).
Seamen, discharged, Case of, 1 Op., 148, p.
62 (consular officers). -
1 Op., 148, p. 202 (seamen).
Seamen, distressed, Aid to, 3 Op., 683. p.
203 (seamen).
3 Op., 685. p. 204 (seamen).
Seamen from the Duke, Case of three, 5
Op., 547. p. 204 (seamen).
Seamen, Portuguese, Case of two, 2 Op.,
559. p. 106 (extradition).
Seamen, Rights of, 1 Op., 593. p. 203 (sea-
men). - -
Secretary of Interior, Reply to letter of,
9 Op., 123, p. 51 (compensation).
Secretary of the Treasury, Power of, 5 Op.,
664, p. 94 (Executive Departments).
Secretary of War, Reply to, 13 Op., 424.
p. 89 (eight hour law).
14 Op., 128, p. 89 (eight hour law).
Seeley's case, 6 Op., 386, p. 43 (claims).
286
OF CASES.
TABLE
Somerset, Case of the, 1 Op., 153. p. 10
(awards).
Soulard vs. United States, 4 Pet., 511. p.
239 (treaties with particular states).
Spanish ship, Case of a, 2 Op., 86, p. 163
(neutrality).
Op., 530. p. 43 (claims).
Spanish claimant, Case of a, 6 Op., 530.
p. 256 (treaties with particular states).
Spanish commission, Pay of commissioners
and advocate of, 13 Op., 415. p. 53
(compensation).
Spanish consul, Matter of the, 1 Bened.,
225. p. 82 (depositions). º
Spanish indemnity, Interest on, 13 Op., 85.
p. 256 (treaties with particular states).
Spanish minister's case, 1 Op., 71. p. 194
(public minister).
5 Op., 691, appendix. p. 195 (public
minister).
Spanish minister's publication, 1 Op., 74.
p. 194 (public minister).
Spanish ship, Case of a, 2 Op., 86. p. 141
(international law).
Spanish viceroys, Power of, 7 Op., 551. p.
85 (diplomatic power).
7 Op., 551. p. 220 (Spanish vice-
roys).
Spriggs vs. Bank of Mount Pleasant, 14
Pet., 201. p. 225 (sureties).
Springbok, The, 5 Wall., 1 [22]. p. 176
(neutrals).
Sprott vs United States, 20 Wall., 459
[464, 465]. p. 80 (de facto government).
St. Domingo, The vice-admiralty court at,
5 Op., 689, appendix. p. 26 (capture
and prize).
--
Seibel's case, 9 Op., 138. p. 52 (compen-
sation).
Semple, James, chargé to New Granada,
Case of, 4 Op., 295. p. 13 (bills of ex-
change).
Serene, The bark, 6 Op., 617. p. 43
(claims).
6 Op., 617. p. 63 (consular offi-
cers). *
6 Op., 617, p. 205 (seamen).
Servant, Chevalier Hulseman's, 9 Op., 7.
p. 196 (public minister).
Servant, case of Van Berckel’s, 1 Op., 26.
p. 139 (international law).
1 Op., 26. p. 193 (public minister).
1 Op., 26. p. 212 (servants).
Shanks vs. Dupont, 3 Pet., 242, p. 38
(citizenship).
3 Pet.,242 [250, 255]. p. 245 (treat-
ies with particular states).
Ship Fearless, Case of the, 13 Op., 557.
p. 206 (seamen).
Shipmasters, Obligations of, 2 Op., 256.
p. 203 (seamen).
Ship’s papers, Detention of, 9 Op., 426.
p. 65 (consular officers).
Shipmasters and seamen, 2 Op., 448, p. 62
(consular officers).
2 Op., 448. p. 203 (seamen).
Ships, Case of purchase of, 7 Op., 538, p.
167 (neutrality).
Short's case, 10 Serg. & R., 125.
(extradition).
Sierra Leone, Attack on, 1 Op., 57. p. 130
(foreign states).
— 1 Op., 57. p. 162 (neutrality).
Sir William Peel, The, 5 Wall., 517. p. 31
(capture and prize). -
5 Wall., 517. p. 177 (neutrals).
Sinclair's case, 1 Op., 81. p. 97 (executive
interference).
Slavers, The, 2 Wall., 350. p. 217 (slave
trade).
Slaves from Martinique, 1 Op., 29. p.
214 (slaves).
Slaves on British vessels, 2 Op., 475, p.
215 (slaves).
2 Op., 475.
2 Op., 475.
particular states).
p. 108
p. 227 (treaties).
Slaves, Spanish, Case of 2 Op., 198. p.
215 (slaves).
2 Op., 198. p. 255 (treaties with
particular states).
Smith's case, 10 Op., 1. p. 186 (pardons).
Smyrna, Case of three convicts at, 14 Op.,
522. p. 60 (consular courts).
Snell vs. Faussatt, 1 Wash., 271. p. 49
(commanding general).
1 Wash., 271. p. 75 (courts in for-
eign countries).
Society, &c., vs. New Haven, 8 Wh., 464
p. 230 (treaties).
8 Wh., 464. p. 245 (treaties with
particular states).
Society, &c., w8. Wheeler, 2 Gall., 105. p. 2
(alien enemy).
Sombrero Island, 9 Op., 128. p. 22 (bonds).
9 Op., 128, p. 191 (powers of at-
torney). •e
p. 241 (treaties with
St. José Indiano, The, 1 Wh., 208: p. 29
(capture and prize).
St. Lawrence, The, 1, Gall., 467, p. 88
(domicile).
St. Thomas, Case of commercial agent at,
5 Op., 161, 6 Op., 163. p. 63 (consular
officers).
Stanley's case, Lieutenant, 6 Op., 714. p.
185 (pardons). -
Stansbury vs. United States, 8 Wall., 35.
p. 54 (compensation).
State Department, new, Disbursements
for, 14 Op., 409. p. 211 (Secretary of
State).
State tonnage-tax cases, 12 Wall., 204. p.
226 (tonnage-tax).
Steamer Spark vs. Lee Choi Chum, 1 Saw-
yer, 713. p. 61 (consular courts). -
Steamers, American, at Port Sarnia, 11
Op., 72. p. 213 (ship's papers).
Steamers, Norse American line of, 14 Op.,
468, p. 263 (treaties with particular
states).
Steamers, The New York and Havre, 9
Op., 256. p. 213 (ship's papers).
Steamship Company vs. Port-Wardens, 6
Wall., 31. p. 226 (tonnage-tax).
Stein vs. Bowman, 13 Pet., 209. p. 85 (di-
plomatic officers).
13 Pet., 209. p. 197 (public minis-
ter).
Stern, Moses, Case of, 13 Op., 376, p. 161
(naturalized citizens).
TABLE OF CASES.
287
Stern, Moses, Case of, 13 Op., 376. p. 250
(treaties with particular states).
Steinkauler's case, Op. June 26, 1875. p.
37 (citizenship).
— Op. June 26, 1875. p. 251 (trea-
ties with particular states).
Stone-cutters at Richmond, 14 Op., 37
[45]. p. 89 (eight hour law).
Stoughton v3. Dimick, 3 Blatch., 356, p.
172 (neutrality).
Strohm vs. United States, Taney’s Dec., 413.
p. 217 (slave trade).
Strong’s bond, Mr., 1 Op., 378, p. 62 (con-
Sular officers). .
Strother vs. Lucas, 12 Pet., 436. p. 56
(conquest).
12 Pet., 436, p. 131 (grant).
—— 12 Pet., 410 [436]. p. 148 (inter-
national law).
12 Pet., 410 [436]. p. 155 (laws).
12 Pet., 436. p. 231 (treaties).
Stubbs's case, 6 Op., 583. p. 48 (clerks).
— 6 Op., 583. p. 51 (compensation).
6 Op., 583. p. 94 (Executive De-
partments).
10 Op., 31.
10 Op., 31.
State).
10 Op., 31.
ment).
Stupp, In re, 11 Blatch., 124. p. 114 (extra-
dition).
Stupp, alias Vogt, Joseph, In re, 12
Blatch., 501. p. 122 (extradition).
Stupp, Joseph, In re, 11 Blatch., 124. p.
120 (extradition).
Sucillon's case, 7 Op., 285, 536, p. 110
(extradition).
7 Op., 6.12.
Sullivan's case, 1 Op., 509 [521].
(extradition).
1 Op., 509 [511]. p. 141 (interna-
tional law).
Suspended officer, Re-instating, 13 Op.,
221. p. 180 (office). --~~
Suspension of officer, Op., Nov. 20, 1875.
p. 181 (office).
Talbot vs. Janson, 3 Dall., 133. p. 27 (cap-
ture and prize).
3 Dall., 133. p. 101 (expatriation).
3 Dall., 133. p. 144 (international
law).
Talbot vs. Seaman, 1 Cr., 1, 31 [32]. p. 27
(capture and prize).
1 Cr., 1 [28,43]. p. 145 (interna-
tional law). -
1 Cr., 43. p. 223 (statutes).
1 Cr., 1 [28]. p. 267 (war).
Taylor vs. Carpenter, 3 Story, 458, p. 5
(aliens).
Taylor vs. Morton, 2 Curtis, 454, p. 234
(treaties). -
2 Curtis, 454, p. 254 (treaties with
particular states).
Tºº The, 5 Wall., 180. p. 20 (block-
à Cle, ),
Terrier, Case of the, 1 Op., 675. p. 201
(Salvage).
Territorial rights, Florida, 1 Op., 68, p.
217 (sovereignty).
p. 52 (compensation).
p. 211 (Secretary of
p. 221 (State Depart-
p. 111 (extradition).
p. 105
Texan schooner, Invincible, The, 3 Op., 120.
p. 76 (crimes).
Texas, Citizens of, 13 Op., 397. p. 36 (citi-
Zenship).
— 13 Op. 397. p. 190 (passports).
Texas, Claims of, for invasion, 4 Op., 332.
p. 41 (claims).
Texas vs. White, 7 Wall., 700, [732 733].
p. 78 (de facto government).
—— 7 Wall.., 700 [720]. pp. 220,221
(state). -
Theodore, The, 1 Op., 577, p. 201 (salvage).
Thirty hogsheads of Sugar v8. Boyle, 9
Cr., 191. p. 55 (conquest).
— 9 Cr., 191. p. 90 (enemy property).
9 Cr., 191 [198]. p. 147 (interna-
tional law).
Thomas, The brig, 3 Op., 405. p. 133 (il-
p. 201
licit intercourse).
Thomas Corwin, The, 7 Op., 756.
(salvage).
Thomas, Herman, In re, 12 Blatch., 370.
p. 121 (extradition).
—— 12 Blatch., 370.
with particular states).
Thompson’s claim, 4 Op., 372. p. 50 (com.
pensation).
4 Op., 372, p. 227 (traveling ex-
penses).
Timas, Antonio Soares, Case of 4 Op., 269.
p. 97 (executive interference).
— Case of, 4 Op., 269, p. 215 (slaves).
Tipitapa, Case of the, 13 Op., 544. p. 83
(diplomatic interference).
Tobacco cases, The Cherokee, 11 Wall.,
621, p. 233 (treaties).
Tobin vs. Walkinshaw, 1 McAll., 186. p.
6 (allegiance).
— 1 McAll., 186. p. 234 (treaties).
Tonnage-tax cases, State, 12 Wall., 204.
p. 226 (tonnage-tax).
Torrence and others, Case of, 5 Op., 670.
p. 43 (claims).
Townsend vs. Greeley, 5 Wall., 326. p. 248
(treaties with particular states).
Transit tax, Panama, 13 Op., 547. p. 45
(claims).
——— 13 Op., 547, p. 83 (diplomatic in-
terference).
13 Op., 547. p. 250 (treaties with
particular states).
Transportation claims, 5 Op., 399. p. 138
(interest). r
Transportation in bond under treaty of
Washington, 14 Op., 310. p. 243 (treaties
with particular states).
Transporting prisoners, Claim for, 6 Op.,
59. p. 59 (consular courts).
Treason, 1 Op., 84. p. 57 (crimes).
1 Op., 84. p. 157 (maritime war).
Treasury, Power of Secretary of, 5 Op.,
664. p. 94 (Executive Departments).
Treaties, Execution of, 1 Op., 66. p. 227
(treaties).
Treaties, Payments under, 11 Op., 52. p.
252 (treaties with particular states).
Treaty, British, of 1853, 10 Op., 31. p. 229
(treaties).
Treaty, The Clayton Bulwer, 8 Op., 436.
p. 33 (Central America).
p. 235 (treaties
288
TABLE OF CASES.
Treaty, the Clayton-Bulwer, 8 Op., 436. p.
242 (treaties with particular states).
Treaty with France, Claims under, 1 Op.,
136. p. 41 (claims).
1 Op., 136, p. 237 (treaties with
particular states).
Treaty with France, Extradition under, 4
Op., 330. p. 107 (extradition).
Treaty, French, Formalities of extradi-
tion under, 4 Op., 330. p. 238 (treaties
with particular states).
Treaty with Mexico, Case of commis-
sioners under, 7 Op., 582. p. 139 (inter-
national commissioners).
Treaty, Obligations under, 1 Op., 82, p.
241 (treaties with particular states).
Treaty of 1794, Duties under, 1 Op., 155.
p. 241 (treaties with particular states).
Treaty, Reciprocity, with Great Britain, 6
Op., 748. p. 242 (treaties with particu-
lar states).
Treaty of Washington, Extradition under,
4 Op., 240. p. 107 (extradition).
Treaty of Washington, Transportation in
bond under, 14 Op., 310. p. 243 (trea-
ties with particular states).
Turkey, Americans in, 7 Op., 565. p. 251
(breaty with particular states).
Turkey, jurisdiction of consular courts in,
9 Op., 296. p. 59 (consular courts).
Turkey, Status of Americans in, 7 Op.,
565. p. 103 (exterritoriality).
Turner vs. American Baptist Missionary
Union, 5 McLean, 347, p. 234 (trea-
ties). - -
Tyler's case, 9 Op., 379, p. 112 (extradi-
tion). -
Unexpended balances of appropriations,
13 Op., 288. p. 8 (appropriations).
United States property, Recovery of, 11
Op., 292. p. 192 (property of the United
States).
TJnited States vs. Acosta, 1 How., 24. p.
260 (treasies with particular states).
vs. Adams, 7 Wall., 463. p. 74
(coolie trade).
7 Wall., 463. p. 96 (Executive De-
partments).
vs. The Amistad, 15 Pet., 518. p.
131 (free goods). º
15 Pet., 518 [520]. p. 148 (interna-
tional law).
15 Pet., 518. p. 202, (salvage).
15 Pet., 518. p. 232 (treaties).
– 15 Pet., 518. p. 259 (treaties with
particular states).
vs. Anderson, 10 Blatch., 226. p.
207 (seamen).
vs. Anguisola, 1 Wall, 352, p. 24
(capture).
1 Wall., 352 [358]. p. 248 (treaties
with particular states). -
vs. Arredondo, 6 Pet, 691. p. 124
(foreign consuls).
6 Pet., 691 [748]. p. 148 (interna-
tional law).
6 Pet., 691 [741].
p. 231 (treaties).
ties with particular states).
6 Pet., 691 [741,742]. p. 258 (trea- |
United States vs. Baker, 5 Blatch, 11, 12,
p. 77 (crimes).
5 Blatch., 6. p. 80 (de facto govern-
ment).
5 Blatch., 6. p. 192 (privateers).
- 5 Blatch., 13. p. 151 (international
law). *
—— vs. Bank of the Metropolis, 15 Pet.,
377. p. 15 (bills of exchange).
15 Pet., 377. p. 96 (Executive De-
partments).
vs. Bank of the United States, 5
How., 382. p. 15 (bills of exchange).
vs. Barker, 12 Wh., 559. p. 15
(bills of exchange).
vs. Barrows, 1 Abbott U. S., 351.
p. 97 (Executive Departments).
vs. Bell, Gil., 41. p. 225 (sureties).
vs. Benner, Bald., 234. p. 199 (pub-
lic minister).
vs. Brig Malek Adhel, 2 How., 236.
p. 77 (crimes).
2 How., 236. p. 77 (international
p. 119
law).
vs. Caldwell, 8 Blatch, 131.
(extradition).
vs. Cargo of the El Telegrafo, 1
Newb. Adm., 383. p. 3 (alien enemy).
vs. Clarke, 8 Pet., 436. p. 124
(Florida).
9 Pet., 168, p. 259 (treaties with
porticular states).
vs. Cutter, 2 Curtis, 617. p. 224
(sureties). -
vs. Davis, 2 Sumner, 482. p. 7
(American vessels).
2 Sumner, 482. p. 116 (extradition).
—— 2 Sumner, 482. p. 151 (intérna-
tional law).
—— 2 Sumner, 482. p. 154 (jurisdiction).
— vs. Delespine, 15 Pet., 226. p. 259
(treaties with particular states).
—— vs. Diekelman, 92 U. S. R., S. C.,
520. p. 21 (blockade).
—— 92 U. S. R., S. C., 520 [524]. p. 47
(claims).
—— 92 U. S. R., S. C., 520 [527]. p. 49
(commanding general).
92 U. S. R., S. C., 520. p. 73 (contra-
band).
92 U. S. R., S. C., 520. pp. 149, 150
(international law).
92 U. S. R., S. C., 526. p. 157 (martial
92 U. R. S., S. C., 520. p. 253 (treaties
with particular states),
vs. Eliason, 16 Pet., 291, [302]. p.
96 (Executive Departments). -
v3. Ferreira, 13 How., 45, [46]. p.
261 (treaties with particular states).
vs. Gooding, 12 Wh., 460. p. 217
(slave trade).
vs. Gordon, 5 Blatch., 18, p. 7
(American vessels).
5 Blatch., 18. p. 38 (citizenship).
5 Blatch., 18, p. 159 (national
character).
vs. Grossmayer, 9Wall.., 72, [74,75].
p. 135 (illicit intercourse). .
law)
TABLE OF CASES.
289
United States v3. Guillem, 11. How., 47. p.
175 (neutrals).
—— vs. Hand, 2 Wash., 435.
ternational law).
— 2 Wash., 435.
ter).
p. 150 (in-
p. 198 (public minis-
− vs. Hayward, 2 Gall, 485, [5011 p.
57 (conquest).
—— 2 Gall., 501. p. 219 (sovereignty).
—— v8, Heirs of Clark and Atkinson, 16
Pet., 231, 232. p. 260 (treatles with par-
ticular states).
——— v8. Herron, 20 Wall.,
(statutes).
vs. Insurance Companies, 22 Wall.,
99, [101]. p. 80 (de facto government).
— vs. Jeffers, 4 Cr. Cir. Court, 704. p.
198 (public minister). -
—— vs. Jonas, 19 Wall , 598. p. 96 (Ex-
ecutive Departments).
—— w8, Kirkpatrick, 9 Wh., 720. pp.
224, 225 (sureties).
—— vs. Klintock, 5 Wh., 144. p.
(crimes). -
vs. Lafontaine, 4 Cr. Cir. Court, 173.
p. 198 (public minister). -
251. p. 223
76
ants).
—— v8. La Garonne, 11 Pet., 73. p. 217.
(slave trade).
—— vs. Lapéne, 17 Wall., 601. p. 136
(illicit intercourse).
—— vs. Lawrence, U. S. C. C., So. Dist. N.
Y., March, 1876. pp. 132, 123 (extradi-
tion).
vs. Le Baron, 19 How., 74, p. 8
(appointments).
— 19 How., 74. p. 182 (office).
vs. Louis Kazinski, 2 Sprague, 7.
p. 172 (neutrality).
—— vs. Lumsden, 1 Bond, 5. p. 172
(neutrality).
—— vs. Lynde, 11 Wall., 632, [644]. p.
124 (Florida). -
– 11 Wall., 632. p. 263 (treaties with
particular states).
—— vs. Moreno, 1 Wall., 400. p. 24
(California).
—— 1 Wall., 400. p. 248 (treaties with
particular States).
—— v8. Morris, 14 Pet., 464, p. 217
(slave trade). -
—— vs. Nicholl, 12 Wh., 505. p. 183
(officers of government).
12 Wh., 505. p. 224 (sureties.)
—— The, and Ocean Wave, Case of, 7
Op., 398. p. 167 (neutrality).
7 Op., 398. p. 221 (State Depart-
ment). * -
—— vs. O'Keefe, 11 Wall., 178. p. 47
(claims).
—— vs. 1,756 shares of capital stock, 5
Blatch, 232, p. 151 (international law).
vs. Ortega, 4 Wash., 531. p. 198
(public minister). - -
— vs. Ortega, 11.Wh.,467. p. 196 (pub-
lic minister). -
vs. Palmer, 3 Wh., 610. p. 40 (civil
war).
4 Cr. Cir. Court, 173. p. 212 (sery- .
United States vs. Parsons et al., 1 Low, 107.
p. 70 (consular officers).
1 Low., 107. p. 209 (seamen).
w8. Schooner Peggy, 1 Cr., 109. p.
230 (treaties).
1 Cr., 103. p. 238 (treaties with
particular states).
vs. Percheman, 7 Pet., 51, p. 258
(treaties with particular states).
vs. Pirates, 5 Wh., 184. p. 77
(crimes). sº .E.
— 5 Wh., 184, p. 159 (national char.
acter). -
—— property, Recovery of, 11 Op., 292.
p. 192 (property of the United States).
— v8. Quincy, 6 Pet., 445. p. 171 (neu-
trality). - * -
vs. Repentigny, 5 Wall., 211.
(conquest).
—— 5 Wall., 211.
5 Wall., 211.
particular states).
v8. Rice, 4 Wh., 246. p. 55 (con-
quest).
—4 Wh., 246. p. 219 (sovereignty).
vs. Rodman, 15 Pet. 130. p. 259
(treaties with particular states). -
vs. Reynes, 9 How., 127. p. 240
(treaties with particular states).
vs. Sharp, Pet. C. C., 118. p. 207
(seamen).
— vs. Singer, 15 Wall.; 112, [122]. p.
22 (bonds). -
vs. Six boxes of arms, 1 Bond, 446.
p. 151 (international law). *
vs. Small, 2 Curtis, 241. p. 75
(crew). - -
vs. Smith, 5 Wh., 153. p. 76 (crimes).
5 Wh., 153. p. 147 (international
law).
p. 57
p. 232 (treaties).
p. 246 (treaties with
v8. Steamship City of Mexico, 11
Blatch., 489. p. 208 (seamen).
vs. Tingey, 5 Pet., 115. p. 22 (bonds).
es. Van Zandt, 11 Wh., 184. p. 183
(officers of government).
vs. Westervelt, 5 Blatch., 30. p.
217 (slave trade).
—— v8. Wiggins, 14 Pet., 334. p. 259
(treaties with particular states).
—— vs. William Liddle, 2 Wash., 205.
p. 197 (public minister). '
vs. Wilson, 7 Pet., 150. p. 187 (par-
dons). - -
vs. Winn, 3 Sumner, 209 [212]. p.
75 (crew). -
—— vs. Wright, 1 McLean, 509. p. 182
(office). -
vs. Yorba, 1 Wall., 412 [423]. p. 24
(California.)
Urtetiqui vs. D'Arbel, 9 Pet., 692. p. 190
(passports).
•Vacancies of commissioners, 14 Op., 48.
p. 33 (centennial exhibition).
Vacancies, Power of the President to fill,
2 Op., 525. p. 179 (office).
Van Berckel’s servant, Case of, 1 Op., 26.
p. 139 (international law).
— 1 Op., 26. p. 212 (servants). .
— 1 Op., 26. p. 193 (public minister).
19
290
TABLE OF . CASES.
Vance's case, 12. Op., 75, p. 113 (extradi-
tion). • , *.
Venezuela, The minister to, 12 Op., 457.
p. 179 (office).
Venus, The, 8 Cr., 253. p. 86 (domicile).
Verjel’s case, 9 Op., 383. p. 128 (foreign
decedents). *
—-9 Op., 383. p. 252 (treaties with par-
ticular states).
Vermilye & Co. vs. Adams Express Co., 21
Wall., 138. p. 16 (bills of exchange).
Viceroys, Power of Spanish, 7 Op., 551.
. . p. 85 (diplomatic power).
7 Op., 551. p. 220 (Spanish vice-
roys). - -
Villavaso's case, 1 Op., 406. p. 124 (foreign
consuls). -
1 Op., 406. p. 141 (international
law).
Virginius, The, 14 Op., 49. p. 168 (neu-
trality). - -
14 Op., 49, 340. p. 264 (Virginius,
steamer).
Vogt's case, Carl, 14 Op., 281. p. 113 (ex-
tradition). -
14 Op., 281. p. 252 (treaties with
particular states).
Ware vs. Hylton, 3 Dall., 199 [237]. p. 229 |
(treaties).
—— 3 Dall., 199.
particular states).
Warren's case, 12 Op., 319. p. 35 (citizen-
ship).
—— 12 Op., 319, p. 154 (jury. de me-
diatate). * -
— 12 Op., 319. pp. 160, 161 (natural-
ized citizens). -
Waring vs. United States, 7 Ct. of Cls., 501.
p. 188 (pardons).
Washburn's case, 14 Op., 482. p. 74 (coolie
trade). - -
Wells, Ex parte, 18 How., 307. p. 187
(pardons).
Western Pacific Railroad Company, Case
of, 13 Op., 387. p. 95 (Executive De-
partments).
p. 243 (treaties with
Wetherwax's case, 8 Op., 240. p. 111 (ex- .
tradition). -
Wheelwright and others, Case of, 12 Op.,
21. p. 44 (claims).
12 Op. 21. p. 144 (international
law
tº-mº
).
12 Op., 21. . p. 167 (neutrality).
Whitman’s case, 8 Op., 1. p. 15 (bills of
exchange). º
Whiting's case, 10 Op., 435. p. 53 (com-
pensation).
Wilcox vs. Jackson, 13 Pet., 498, p. 96
(Executive Departments).
William, The, 1 Op., 40. p. 25 (capture
and prize).
William Bagaley, The, 5 Wall.,377 [408].
p. 31 (capture and prize).
le) 5 Wall, 377 [405]. p. 88 (domi-
C116). -
*=== 5 Wall., 377. pp. 91, 92 (enemy
property).
—— 5 Wall., 377 [405]. p. 135 (illicit
intercourse). -
5 Wall., 377 [408, 409]. p. 149
(international law).
Wills, Case of the register of, 1 Op. 212.
p. 178 (office).
Wilson's ease, 14 Op., 7. p. 68 (consular
officers).
Wilson vs. The Mary, Gil., 33. p. 69 (con-
sular officers).
Windsor, Case of the consul at, 11 Op.,
237. p. 213 (ship's papers).
Wing's case, 6 Op.,853 p. 108 (extradition).
Op., 85. p. 242 (treaties with
particular states).
Winnebago Indians, The, 3 Op., 471. p.
228 (treaties).
Wise, Mr., minister at Rio, Case of, 4 Op.,
506. p. 14 (bills of exchange).
4 Op., 506. p. 50 (compensation).
Wren, The, 6 Wall., 582, p. 21 (blockade).
Wright vs. Tebbitts, 91 U. S. R., S.C., 252.
p. 47 (claims).
Yeaman's case, George H., 13 Op., 300.
pp. 180, 181 (office).
*


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