After such an official recognition by the sovereign, a citizen of a foreign state is estopped to deny the existence of a war with all its consequences as regards neutrals. They cannot ask a court to affect a technical ignorance of the existence of a war, which all the world acknowledges to be the greatest civil war known in the history of the human race, and thus cripple the arm of the government and paralyze its power by subtle definitions and ingenious sophisms.

The law of nations is also called the law of nature; it is founded on the common consent as well as the common sense of the world. It contains no such anomalous doctrine as that which this court are now for the first time desired to pronounce, to wit: That insurgents who have risen in rebellion against their sovereign, expelled her courts, established a revolutionary government, organized armies, and commenced hostilities, are not enemies because they are traitors; and a war levied on the government by traitors, in order to dismember and destroy it, is not a war because it is an "insurrecton."

Whether the President is fulfilling his duties, as Commander-inChief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions as will compel him to accord to them the character of belligerents, is a question to be decided by him, and this court must be governed by the decisions and acts of the political department of the government to which this power was entrusted. "He must determine what degree of force the crisis demands." The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the circumstances peculiar to the case.

The correspondence of Lord Lyons with the Secretary of State admits the fact and concludes the question.

If it were necessary to the technical existence of a war, that it should have a legislative sanction, we find it in almost every act passed at the extraordinary session of the Legislature of 1861, which was wholly employed in enacting laws to enable the government to prosecute the war with vigor and efficiency. And finally, in 1861, we find Congress "ex majore cautela" and in anticipation of such astute objections, passing an act "approving, legalizing, and making valid all the acts, proclamations, and orders of the President, etc., as if they had been issued and done under the previous express authority and direction of the Congress of the United States."

Without admitting that such an act was necessary under the circumstances, it is plain that if the President had in any manner assumed powers which it was necessary should have the authority or sanction of Congress, that on the well known principle of law, "omnis ratihabitio retrotrahitur et mandato equiparatur," this ratification has operated to perfectly cure the defect. In the case of Brown v. United States, 8 Cranch, 131, 132, 133, 3 L. Ed. 504, Mr. Justice Story treats of this subject, and cites numerous authorities to which we may refer to prove

this position, and concludes, "I am perfectly satisfied that no subject can commence hostilities or capture property of an enemy, when the sovereign has prohibited it. But suppose he did, I would ask if the sovereign may not ratify his proceedings, and thus by a retroactive operation give validity to them?"

Although Mr. Justice Story dissented from the majority of the court on the whole case, the doctrine stated by him on this point is correct and fully substantiated by authority.

The objection made to this act of ratification, that it is ex post facto, and therefore unconstitutional and void, might possibly have some weight on the trial of an indictment in a criminal court. But precedents from that source cannot be received as authoritative in a tribunal administering public and international law.

On this first question therefore we are of the opinion that the President had a right, jure belli, to institute a blockade of ports in possession. of the states in rebellion, which neutrals are bound to regard. *

* 7

7 The statement of facts is abridged and the balance of the opinion of the court, dealing with the question of enemy property and the facts of the various cases on appeal, is omitted.

In the course of a dissenting opinion, in which Chief Justice Taney and Justices Catron and Clifford concurred, Mr. Justice Nelson said:

"Upon the whole, after the most careful consideration of this case which the pressure of other duties has admitted, I am compelled to the conclusion that no civil war existed between this government and the states in insurrection till recognized by the Act of Congress 13th of July, 1861; that the President does not possess the power under the Constitution to declare war or recognize its existence within the meaning of the law of nations, which carries with it belligerent rights, and thus change the country and all its citizens from a state of peace to a state of war; that this power belongs exclusively to the Congress of the United States, and, consequently, that the President had no power to set on foot a blockade under the law of nations, and that the capture of the vessel and cargo in this case, and in all cases before us in which the capture occurred before the 13th of July, 1861, for breach of blockade, or as enemies' property, are illegal and void, and that the decrees of condemnation should be reversed and the vessel and cargo restored." 2 Black, 698-699 (17 L. Ed. 459).

In Stovall v. U. S., 26 Ct. Cl., 226, 240 (1891), Chief Justice (then Justice) Nott said: "It has been held in an unbroken series of decisions (from The Prize Cases, in 2 Black, 635, 17 L. Ed. 459 (1862) to Young, Assignee of Collie v. United States, in 97 U. S. 39, 24 L. Ed. 992 (1877), that the Civil War in all hostile operations must be regarded as international, and that 'all property within enemy's territory is in law enemy's property, just as all persons in the same territory are enemies.' Chief Justice Waite, 97 U. S. 60. When the United States accorded to the Confederate States the rights of a belligerent they became a hostile power and their inhabitants public enemies. The obligations of the Constitution do not extend across military lines nor into hostile territory. The law which governed the transactions of the civil war was not constitutional law, but international. It has been closely adhered to; so closely, that under the decisions of the court of last resort the loyal citizens of the North were practically excluded from the benefits of the Captured Property Act, and after nonintercourse began could do nothing to save their property in the South from Confederate confiscation; and though they acted in good faith, with no purpose to aid the rebellion, seeking simply to save their own property in the South by directing its investment there sending nothing into the insurgent districts and bringing nothing out, but leaving the resources of the rebellion precisely as they found them-their acts were held to be intercourse between enemies, and the investments of their agents illegal and void.

CHAPTER II

PARTIES TO A WAR

SECTION 1.-BELLIGERENTS; INSURGENTS

GREAT BRITAIN, on Behalf of BARRETT, v. UNITED STATES. (American and British Claims Commission under Treaty of May 8, 1871. 3 Moore's International Arbitrations, 2900.)

In the case of Edward Alfred Barrett v. United States, No. 18, the claimant, a British subject, resident in England during the Civil War in the United States, alleged that in October, 1864, he purchased for a valuable consideration and was still the possessor and absolute owner of a certain "cotton-loan bond" of the Confederate States of America, by which the Confederate States bound themselves to pay to the bearer £200 sterling, with interest at 7 per cent. per annum, semiannually, on the 1st day of March and the 1st day of September in each year, until redemption of the principal at par; that the government of the United States, in 1865, "seized all the public assets of the said Confederate States, and especially a very large quantity of cotton, hypothecated by the said Confederate States government for payment of the said cotton loan, and thus prevented those states from paying their cotton-loan bondholders"; and that in consequence of such seizure by the government of the United States the principal of the bond remained unpaid, and no interest had been paid thereon from the 1st of March, 1865. The claimant demanded £200 and interest.

The agent of the United States, believing the claim to be outside of the scope of the submission under the treaty, sent a copy of the memorial to the Secretary of State, who protested against the presentation of the claim, and asked that it be withdrawn. This request not having been complied with, the agent of the United States, under specific instructions from the Secretary of State of December 9, 1871, filed a motion to dismiss for want of jurisdiction, on the ground that the memorial stated "no case for a claim against the United States within the intent" of the treaty.

United States v. Grossmayer, 9 Wall. 72, 19 L. Ed. 627 (1869); Dillon v. United States, 5 Ct. Cl. 586 (1869), affirmed without opinion; Cutner, Use of Schiffer v. United States, 17 Wall. 517, 21 L. Ed. 656 (1873); United States v. Lapene, 17 Wall. 601, 21 L. Ed. 693 (1873); Montgomery v. United States, 15 Wall. 395, 21 L. Ed. 97 (1872); Stoddart v. United States, 6 Ct. Cl. 340." See, also, The Rapid, 8 Cranch, 155, 3 L. Ed. 520 (1814), post, p. 631.

Arguments were submitted on this motion, and on December 14, 1871, the commission rendered the following unanimous decision: "The commission is of opinion that the United States is not liable for the payment of debts contracted by the rebel authorities.

"The rebellion was a struggle against the United States for the establishment in a portion of the country belonging to the United States of a new state in the family of nations, and it failed. Persons contracting with the so-called Confederate States voluntarily assumed the risk of such failure, and accepted its obligations, subject to the paramount rights of the parent state by force to crush the rebel organization, and seize all its assets and property, whether hypothecated by it or not to its creditors.

"Such belligerent right of the United States, to seize and hold was not subordinate to the rights of creditors of the rebel organization, created by contract with the latter; and when such seizure was actually accomplished, it put an end to any claim of the property which the creditor otherwise might have had.

"We are therefore of opinion that after such seizure the claimant had no interest in the property, and the claim is dismissed."

WILLIAMS v. BRUFFY.

(Supreme Court of the United States, 1877. 96 U. S. 176, 24 L. Ed. 716). See ante, p. 40, for a report of the case.

MONTOYA v. UNITED STATES.

(Supreme Court of the United States, 1901. 180 U. S. 261, 21 Sup. Ct. 358, 45 L. Ed. 521.)

This was a petition by the surviving partner of the firm of E. Montoya & Sons, owners of a ranch in Nogal, New Mexico, against the United States, and the Mescalero Apache Indians, for the value of certain live stock stolen by certain of these Indians, known as Victoria's Band, in March, 1880.

From 1876 to 1879, the United States authorities were engaged in quelling insurrections of Apache Indians in Arizona, and in removing them to other reservations.

In 1879, Victoria, an Apache Indian, escaped from the reservation, and gathered together a band of Indians, and began marauding and destroying property, and killing citizens. During 1879 and 1880 they were constantly pursued by United States troops.

The Court of Claims found as an ultimate fact that the depredation complained of was committed by a band of Indians not in amity with

the United States at the date of depredation. Upon these findings of fact the court decided as a conclusion of law that the petition be dismissed. Claimants appealed to the Supreme Court of the United States.

Mr. Justice BROWN delivered the opinion of the court.

The first section of the Act of March 3, 1891, c. 538, 26 Stat. 851, vests the Court of Claims with jurisdiction to inquire into and finally adjudicate: "First. All claims for property of citizens of the United States taken or destroyed by Indians belonging to any band, tribe or nation in amity with the United States, without just cause or provocation on the part of the owner or agent in charge, and not returned or paid for."

To sustain a claim under this section, it is incumbent upon the claimant to prove that the Indians taking or destroying the property belonged to a band, tribe or nation in amity with the United States. The object of the act is evidently to compensate settlers for depredations committed by individual marauders belonging to a body which is then at peace with the Government. If the depredation be committed by an organized company of men constituting a band in itself, acting independently of any other band or tribe, and carrying on hostilities against the United States, such acts may amount to a war for the consequences of which the government is not responsible under this act, or upon general principles of law. United States v. Pacific Railroad, 120 U. S. 227, 234, 7 Sup. Ct. 490, 30 L. Ed. 634.

The North American Indians do not and never have constituted "nations" as that word is used by writers upon international law, although in a great number of treaties they are designated as "nations" as well as tribes. Indeed, in negotiating with the Indians the terms "nation," "tribe" and "band" are used almost interchangeably. The word "nation" as ordinarily used presupposes or implies an independence of any other sovereign power more or less absolute, an organized government, recognized officials, a system of laws, definite boundaries and the power to enter into negotiations with other nations. These characteristics the Indians have possessed only in a limited degree, and when used in connection with the Indians, especially in their originai state, we must apply to the word "nation" a definition which indicates little more than a large tribe or a group of affiliated tribes possessing a common government, language or racial origin, and acting for the time being, in concert. Owing to the natural infirmities of the Indian character, their fiery tempers, impatience of restraint, their mutual jealousies and animosities, their nomadic habits, and lack of mental training, they have as a rule shown a total want of that cohesive force necessary to the making up of a nation in the ordinary sense of the word. As they had no established laws, no recognized method of choosing their sovereigns by inheritance or election, no officers with defined powcrs, their governments in their original state were nothing more than a temporary submission to an intellectual or physical superior, who in