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to say that no right to recover for the use and detention of the vessel can be predicated on the action of the War Department in requiring the claimants to accept the return of their vessel under the circumstances of this case, for even if the claimants had been permitted to receive the vessel under protest, reserving in the receipt in express terms their right to prosecute a claim for the use and detention of the vessel, it would have availed them nothing, as there was no element of contract either in the capture, use, or detention of the vessel, nor was anything said by the officers of the Government from which there could be implied an agreement or obligation to pay therefor, and the claim being one sounding in tort no action will lie thereon against the United States on the order of the President.
For these reasons the numerous cases cited by the claimants, to the effect that where the Government appropriates private property which it does not claim as its own it does so under an implied contract to pay therefor, have no application in this case. Nor has the case of the Philippine Sugar Estates Development Company (40 C. Cls. R., 33), for the reason that at the time of the taking of the property in that case war with Spain had ceased; the Philippine Islands had been ceded to and were under the control and dominion of the United States; the country had been reduced to subjection before the taking of the property, and hence it was held that an implied contract arose to pay for the property so taken.
But that is not the case here, as the capture and use of the vessel were both during the war with Spain, and even before the occupation of Cuba by the military forces of the United States.
Although we have reached the conclusion that the case of Hijo v. The United States, supra, is controlling in the present case, notwithstanding the peculiar relation of the United States to Cuba, we have found the facts on the merits of the case for the reason that in the case just cited the court, in concluding its opinion, said:
We may add that even if the act of March, 1887, standing alone, could be construed as authorizing a suit of this kind, the plaintiff must fail, for it is well settled that in case of a conflict between an act of Congress and a treaty — each being equally the supreme law of the land — the one last in date must prevail in the courts.
So that if, in case of appeal, the Supreme Court should differ with this court and hold that an action could be maintained under the act of March, 1887, they would then have before them the question whether the treaty, as in that case, operated to relinquish the claim herein.
For the reasons we have given we must hold that the court is without jurisdiction; and we may add that if we should take jurisdiction, we should feel constrained under the wording of the treaty to apply it in this case, so that in either event the claimants must fail; and for that reason their petition is dismissed.
PASCASIO DIAZ, ENRIQUE DE MESSA, AND ROBERT SCOTT DOUGLAS, TRADING
AND DOJ NG BUSINESS UNDER THE FIRM NAME OF GALLEGO, MESSA & COMPANY, V. THE UNITED STATES
Court of Claims of the United States
(Decided May 4, 1908) Par curiam.
The facts in this case are practically the same as those in the case of Cosme Blanco Herrera et al. v. The United States (43 C. Cls. R., -), decided contemporaneously with this; and the decision in that case controls this unless the use of the wharves and the citizenship of one of the claimants herein - a British subject — operates to vary the rules announced therein.
The wharves, as well as the steamship Thomas Brooks, were seized and used by the military forces of the United States as an act of war within the limits of military operations, and, therefore, under the ruling in the case of Hijo v. The United States (194 U. S., 315), as applied to captures in Cuba by the ruling in the case of Cosme Blanco Herrera, supra, no action will lie therefor against the United States.
Two of the claimants herein were subjects of Spain, while one, Robert Scott Douglas, was a British subject. But a foreigner residing in a state of war with another state is subject to the jurisdiction and control of the state wherein he resides and does business, and his property being an element of strength to the state wherein he resides “may reasonably be treated as hostile by an enemy.” That is to say, “enemy character may thus attach either to persons of neutral national character, and to their property as attendant on them, or to property owned by neutrals in virtue of its origin, or of the use to which it is applied.” (Hall's Int. Law, 5th ed., p. 497.)
Such also was the view of this court in the case of The Juragua Iron Co. v. The United States (42 C. Cls. R., 99, 111), where the court said:
The law seems to be well settled that when a citizen of one belligerent country is doing business in the other belligerent country, and has built up and pur. chased property there which has a permanent situs, such property is subject to the same treatment as property of the enemy. At first sight this rule of law seems to be a harsh one, but when we consider that the property therein situated is a part of the assets of a country, and in a certain sense a part of the country itself, and further consider the difficulty, in stress of war, of discriminating between enemy and citizen property situated in the same country, the rule seems to be reasonable and necessary.
In the present case the findings show that the vessel prior to its seizure by the United States military forces had been employed in the transportation of Spanish troops and munitions of war from place to place.
Had the vessel been owned exclusively by said Douglas — the British subject - its use in transporting troops and munitions of war for the Spanish Government, however innocent the owner's intention, would have been service to a state engaged in active hostilities against the United States. But for the purposes of this case we deem it unnecessary to hold that he had thereby forfeited his neutral character; and so, treating him as a neutral individual residing in Cuba, the obligation was upon him to “ be prepared for the risks of war;” and that being so, he “can not demand compensation for loss or damage to property resulting from military operations carried on in a legitimate manner.” (Hall's Int. Law, sec. 269.)
In this respect he stande in no better position than a subject of Spain. The petition is dismissed.
International Law. Part I: Peace; Part II: War. By John Westlake,
K. C., L. L. D., Whewell Professor of International Law in the University of Cambridge, Late Fellow of Trinity College, Cambridge, Honorary L. L. D. of the University of Edinburg, Member and Late President of the Institute of International Law. Published at the University Press, Cambridge, 1904 and 1907. pp. 356 and 334, respectively.
Professor Westlake was born eighty years ago on the 4th of February last and after twenty years of honorable service resigned his professorship at Cambridge last spring, neither mind nor body having failed except that his voice was no longer adequate for lecturing.
After a brilliant career at Cambridge, where he was sixth Wrangler and sixth in first class Classical Tripos, he read law at Lincoln's Inn and was called to the bar in 1854. His first important work, “A Treatise on Private International Law or the Conflict of Laws,” was published fifty years ago, in 1858, within four years after his call to the bar, and is now in its fourth edition.
In 1874 he “ took silk," and was made a Bencher of Lincoln's Inn. In 1885 he was elected to Parliament from the Romford Division of Essex. In 1894 he published “ Chapters on the Principles of International Law.” He has been decorated by the Mikado of Japan and the King of Italy. He is especially identified with the foundation and entire existence of the Institute of International Law, and has served as a member for the United Kingdom of the International Court of Arbitration at The Hague.
The ripe productions of such a scholar and specialist in international law certainly deserve notice here. The preface to the first volume announces that the books “
are not intended as an encyclopedis of international law. The aim has been to give a knowledge of the most important topics to English university students and average Englishmen interested in public affairs, neither of them a class which can devote very much time to a single science, and to put them in a position to appreciate the discussion on other topics as they arise in the foreign affairs of the country.”
The purpose is much the same as that for which Sir William Blackstone wrote and delivered at Oxford University his “ Lectures on the Laws of England,” in their final form, just a century and a half ago, except that it is confined to a more limited branch of the law.
The volume on Peace” deals briefly with a General view of international law, its sources and principles ;” the “ Classification of states, their origin, continuity, and extinction;” “Title to state territory and minor territorial rights,” “Rivers,” “The sea and territorial waters;' ” with “Nationality and alienage," National jurisdiction,” “Diplomacy,” “ The political action of states and protection of subjects abroad," “ Interoceanic ship canals,” and, in an appendix, with the wonderfully expanding topic of “International arbitration."
Perhaps this table of contents is sufficient to show the scope and purpose of this work and, considering that it has been before the public four years, we need not discuss it further, giving the space allowed to the second volume, on “War,” so recently published.
The completion of this second volume was delayed until the close of the session of the Second Hague Conference in order to embody its important results as to the law of war, although much of the book was printed at an earlier period. The proceedings at The Hague are dealt with in a closing chapter, but also referred to and incorporated in earlier portions of the book. It ought to be added that Professor Westlake published in the Quarterly Review for January, 1908, an extended, vigorous, and critical review of the works of the Hague conferences, which may be profitably consulted in connection with this work.
Each volume has its own index and the second contains a table of cases, always so desirable in a law book, and so often omitted by less thorough or less lawyer-like writers on international law.
The contents of the second volume are “ War and forcible measures short of war” and “Legal relations as affected by war;” the “ Laws of war in general;” “The laws of war on land," being the Hague regulations, with a commentary, and such regulations considered generally; “Naval war as between belligerents;” “Neutrality, and duties of neutral states;” “Blockades; ” “ Contraband of war;” and a chapter covering 61 pages devoted to “ The Hague Conference of 1907."
The form of the composition is distinctly that of a university lecturer, defining and seeking to classify his subjects, giving a limited number of references or citations, yet displaying always a full and adequate knowledge, not merely of the commentaries and decisions, but also of the cor