War makes the citizens or subjects of one belligerent enemies of
the government citizens and subjects of the other.
During the war with Spain, Cuba was enemy's country, and all
persons residing there pending the war, whether Spanish subjects or
Americans, were to be deemed enemies of the United States, and
their property enemy's property and subject to seizure,
confiscation, and destruction.
Property in the harbor after the capitulation of Santiago
remained enemy property, and seizures thereof by the United States
were acts of war.
Nothing in the President's proclamation of July 13, 1898,
militated against the right of the United States to confiscate
enemy's property for the use of the army of occupation.
There is a distinction between the capture of an enemy's port in
a war with a foreign country and the restoration of national
authority over territory in a civil war and in the protection of
property after capture. The Venice,
Wall. 258, distinguished.
There is a distinction between a seizure of private property of
an enemy for immediate use of the army and the taking of such
property as booty of war. Planters Bank v. Union
16 Wall. 483.
Under the prohibitions of the Tucker Act, the Court of Claims
has no jurisdiction for claims for seizures made in Santiago after
its capitulation in violation of the President's proclamation of
July 13, 1898, or of the laws of war.
Right of Spanish subjects against the United States for
indemnity for illegal seizures and detention of property during the
war of 1898 was taken away by the treaty of peace. Hijo v.
United States, 194 U. S. 315
43 Ct.Cl. 430 affirmed.
The facts, which involve the jurisdiction of the Court of Claims
and the liability of the United States for use of enemy vessels
seized during the war with Spain, are stated in the opinion.
Page 222 U. S. 563
MR. JUSTICE McKENNA delivered the opinion of the Court.
Petition in the Court of Claims for the recovery of $88,200 for
the value of the use and profits of which claimants were deprived,
as it is alleged, by the taking and detention of a certain
steamship by the United States during the war with Spain, and for
the loss of certain property belonging to and a part of such
steamship alleged to be "fairly worth" the sum of $5,000, amounting
in all to the sum of $93,200.
Claimants base their right to recover upon an implied contract
arising from the facts which we shall presently detail. Opposing
this view, the government contends that the property was enemy
property seized for military uses, and that, besides, the record
does not show a "convention between the parties" or circumstances
from which a contract could be implied, and that therefore the case
is one sounding in tort, and claimants have no right of
The court found as a conclusion of law from the facts,
"on the authority of the case of Hijo v. United States,
194 U. S.
, that the claim herein is one arising from the
capture and use of a vessel as an act of war, and the court is
therefore without jurisdiction, and the petition is dismissed."
The claimants, at the time the steamship was taken, composed a
commercial partnership doing business under the firm name of
Herrera Nephews. They were born in Spain and, under the Spanish
regime in Cuba, were Spanish subjects residing in Havana. After the
treaty, they did not, in accordance with its terms, preserve their
allegiance to Spain.
On the 16th day of July, 1898, the Spanish forces then occupying
the territory constituting the division of Santiago, including the
city and port of that name, capitulated
Page 222 U. S. 564
to the United States in accordance with the terms of a military
convention which provided that all hostilities between the American
and the Spanish forces in that district should cease, and that the
Spanish forces should be returned, at the expense of the United
States, to Spain. Actual hostilities ceased with the surrender of
The United States military authorities seized and captured the
steamer San Juan
on the 17th of July, 1898, she having
been held in the harbor by its blockade by the United States naval
authorities. Prior to that date, she had been used to transport
Spanish troops, munitions of war, and supplies for the Spanish
troops from place to place. After her capture, she was used for
like service for American troops and indigent Cubans until
November, 1898 -- a period of 115 days. The reasonable value of her
use was $150 per day, amounting to the sum of $17,250, no part of
which has been paid to claimants.
After the surrender of Santiago and the seizure of the
steamship, the Secretary of War, on July 18, 1898, in pursuance of
the proclamation of the President of July 13, 1898, issued General
Order No. 101, which, among other things, provided that
"private property, whether belonging to individuals or
corporations, is to be respected, and can be confiscated only for
cause. Means of transportation, such as telegraph lines and cables,
railways, and boats, may, although they belong to private
individuals or corporations, be seized by the military occupant,
but unless destroyed under military necessity, are not to be
retained. . . ."
"Private property taken for the use of the Army is to be paid
for, when possible, in cash at a fair valuation, and when payment
in cash is not possible, receipts are to be given."
This order was promulgated in Cuba July 20, 1898.
On November 8, 1898, the Quartermaster General of the Army
telegraphed to R. A. C. Smith, the representative
Page 222 U. S. 565
and attorney-in-fact of claimants, that it was proposed to
return the "captured steamer" to owners, and asked him to wire
their names. Smith answered on the twelfth "that claimants agreed
to accept the vessel, reserving their right to make claim." On the
fifteenth, the War Department notified Smith that the government
was ready to deliver the vessel to her owners upon condition that a
receipt be given showing that she was accepted with full knowledge
and understanding that the Secretary of War did not consider that
any allowance was due the owners on account of her use, she being
captured property, or for any damage sustained by her while she was
in the possession of the United States, and that any claim
subsequently made should be a matter for future consideration by
the War Department. The terms were rejected, and she remained in
the possession of the United States.
On April 25, 1899, the quartermaster at Santiago, on
instructions from the War Department, wrote claimants' agent that,
if they did not receive the steamer "in accordance with the
conditions hereinafter expressed," she would be delivered to the
Department of the Quartermaster of the Army and retained as
property of the United States.
On the seventeenth, claimants accepted her and gave the
"Received this 17th day of May, 1899 at Santiago, Cuba, from
Maj. John T. Knight, quartermaster, U.S. Army, Chief Quartermaster
Department of Santiago, the steamship San Juan,
vessel is accepted with the full knowledge and understanding that
the Secretary of War does not consider that any allowance is due
the owners on account of the use of the vessel, she being captured
property, or for any damages sustained while the vessel has been in
possession of the United States government, the return of the
vessel being a generous act on the part of the United States
government, and that any claim subsequently
Page 222 U. S. 566
made for such use and damages shall be a matter for future
consideration of the War Department."
"And we name and authorize our agents in Santiago de Cuba --
Messrs. Gallego, Mesa & Company, of said city -- to receive and
take possession of said steamship San Juan.
They also executed a paper which recited that it was given in
consideration of the prompt return of the vessel to claimants, and
that released the government and its officers and agents "from all
manner of actions, damages, claims, and demands whatsoever" on
account of her seizure, detention, and use.
From the time that the Quartermaster General of the Army
proposed to return the vessel until May 17, 1899, a period of 190
days, the vessel, though retained by the United States, was not
used. During said period, the United States kept a watchman on
board, who was paid $45 per month. The compensation claimants are
entitled to, if any, for such period, taking into account that the
vessel was not used, would be $125 per day, or $23,750.
Upon the return of the vessel to claimants, tools and implements
of the value of $232.50 were missing, but it is not shown by whom
they were taken. No other property is shown to have been taken
possession of by the United States. The steamer, when returned,
appeared to have been in as good condition as when taken into
possession, ordinary wear and tear excepted.
As we have seen, the Court of Claims rested its decision on the
case of Hijo v. United States, 194 U.
, and that case also is the main reliance of the
government's argument. Claimants, however, contend that the
case is distinguishable from that at bar.
The action there was brought to recover the value of the use of
a vessel belonging to Spanish subjects and taken by the United
States in the port of Ponce, Porto Rico, when that city was
captured by the United States Army and
Page 222 U. S. 567
Navy on July 28, 1898. The vessel was used by the quartermaster
until sometime in April, 1899, when she was ordered to be returned
to the owner if all claims for damages for use or detention should
be waived. The condition was refused, and the vessel was
subsequently abandoned, and was wrecked in a hurricane. We quote
the following from the statement of facts in the opinion:
"The vessel was never in naval custody nor condemned as prize.
When seized, it was a Spanish vessel, carried the Spanish flag, and
its owner, captain, and crew were all Spanish subjects. It did not
come within any of the declared exemptions from seizure set forth
in the proclamation of the President of April 26, 1898. 30 Stat.
1770. A claim filed in the War Department in February, 1900, for
its use was rejected."
The Court of Claims dismissed the petition on the ground that
the vessel was properly seized as enemy property, and its use was
by the war power for war purposes. This Court sustained the
judgment and the principles upon which it was based.
A question of jurisdiction became prominent in the case. The
action was brought in the District Court of Porto Rico, and the
court could only have had jurisdiction under the Tucker Act,
so-called, which provides for the bringing of suits against the
United States. March 3, 1887, 24 Stat. 505, c. 359. In other words,
as expressed in the act, omitting grounds of action with which the
case was not concerned, that court was given jurisdiction of
"upon any contract, express or implied, with the government of
the United States, or for damages, liquidated or unliquidated, in
cases not sounding in tort."
Considering whether the action was of that nature, this Court
said that there was no element of contract in the case, for nothing
was done or said by the officers of the United States from which
could be implied an agreement or obligation to pay for the use of
the vessel, and declared further that, according to
Page 222 U. S. 568
established principles of law, its owners, being Spanish
subjects, were to be deemed enemies, although not directly
connected with military operations, and that therefore the vessel
was to be deemed enemy's property. "It was seized," it was said,
"as property of that kind, for purposes of war, and not for any
purposes of gain." In further emphasis of this conclusion, it was
"The seizure, which occurred while the war was flagrant, was an
act of war occurring within the limits of military operations. The
action, in its essence, is for the recovery of damages, but as the
case is one sounding in tort, no suit for damages can be maintained
under the statute against the United States."
It was also decided that the claim of the plaintiff in the
action was embraced in the stipulation in the treaty of peace
between Spain and the United States, by which they
"mutually relinquished all claims for indemnity, national and
individual, of every kind, of either government, or of its citizens
or subjects, against the other government, that may have arisen
since the beginning of the late insurrection in Cuba, and prior to
the exchange of ratifications of the present treaty, including all
claims for indemnity for the cost of the war. . . ."
That effect, it was declared, must be given to the treaty even
though the Tucker Act could have been construed to authorize the
suit upon the ground that, each being equally the supreme law of
the land, the last in date must prevail in the courts.
Before comparing that case with the case at bar, we may take a
glance at Juragua Iron Co. v. United States, 212 U.
, where it was decided that, Cuba being "enemy's
"an American corporation doing business in Cuba was, during the
war with Spain, to be deemed an enemy to the United States with
respect of its property found and then used in that country, and
such property could be regarded as enemy's property, liable to
Page 222 U. S. 569
be seized and confiscated by the United States in the progress
of the war then being prosecuted."
The action in that case was in the Court of Claims to recover
from the United States the alleged value of certain property
destroyed in Cuba, during the war with Spain, by order of the
officer commanding the United States troops operating in the
locality of the property, the purpose of the order being "to
destroy all places of occupation or habitation which might contain
fever germs." The buildings destroyed were sixty-six in number, and
were used in connection with mining operations and the manufacture
of iron and steel products.
The destruction of the buildings was considered as an act of war
and sustained as such. It was also decided that, even on the
supposition that such destruction was wrongful and unnecessary, a
tort was committed, and though committed in the interest of the
United States, there was no element of contract, and the action was
not one of which the Court of Claims could "take cognizance,
whatever other redress was open to the plaintiff."
We have, then, these propositions established: Cuba was enemy's
country, and all persons residing there pending the war, whether
Spanish subjects or Americans, were to be deemed enemies of the
United States, their property enemy's property, and subject to
seizure, confiscation, and destruction. It would seem necessarily
to follow that the claimants in this case were enemies of the
United States, and their property subject to the necessities of
war. And this is but the application of the rule which declares
that war makes of the citizens or subjects of one belligerent
enemies of the government, and of the citizens or subjects of the
other. The Venice,
Wall. 258, 69 U. S. 274
20 How. 235, 61 U. S.
These consequences, it is insisted, are averted in the case at
bar by two important circumstances: that Santiago, unlike Porto
Rico, was not captured, but capitulated,
Page 222 U. S. 570
and by the explicit direction of the proclamation of the
President of July 13, 1898, promulgated in Cuba on the twentieth.
The argument is that those circumstances modified the general rule,
and that the property of claimant ceased to be "hostile," and
passed "under the sovereignty" of the United States, and as
inviolable as other property under the jurisdiction of the United
States, and, if taken for public use, an obligation to make
compensation would be implied. The Venice,
Wall. 258, and other cases are adduced to support the contention.
It was decided in The Venice
that, after the surrender of
New Orleans, its military occupation by the federal forces "drew
after it the full measure of protection to persons and property
consistent with a necessary subjection to military government." The
limitation is important. The case is not as broad as the contention
which it is cited to support. It was concerned with the restoration
of the authority of the United States over a part of the United
States which had been in a state of insurrection, and in such case,
that is, in districts occupied by national troops, it was
"the policy of the government not to regard such districts as in
actual insurrection or their inhabitants as subject in most
respects to treatment as enemies."
Such occupation, it was said, did not "restore peace, or, in all
respects, former relations," but it replaced "rebel by national
authority," and recognized, "to some extent, the conditions and the
responsibility of national citizenship." In emphasis of the same
view, it was said:
"As far as possible, the people of such parts of the insurgent
states as came under national occupation and control were treated
as if their relations to the national government had never been
6 Wall. 521, does not change the ruling in
from an expression of the special policy of the
government indicated by its legislation to a declaration of law
necessarily following from the military occupation of even enemy
country. It was an obvious
Page 222 U. S. 571
application of the principles of The Venice
that, with the restoration of the national authority,
"from that time, its citizens were clothed with the same rights
of property, and were subject to the same inhibitions and
disabilities as to commercial intercourse with the territory
declared to be in insurrection as the inhabitants of the loyal
and that "such is the result of the application of well settled
principles of public law." To the same effect is Desmare v.
United States, 93 U. S. 605
93 U. S. 611
Nor was there any intention to enlarge the ruling in The
in United States v.
9 Wall. 531.
The case of The Grapeshot,
9 Wall. 129, is also cited by claimants, and some of its language
demands notice. The question involved was the legality of a
provisional court for the State of Louisiana, established by the
President after New Orleans and parts of the state had been
occupied by the national troops. Expressing the purpose of the
national government, the Court said that it was
"neither conquest nor subjugation, but the overthrow of the
insurgent organization, the suppression of insurrection, and the
reestablishment of legitimate authority."
It was further said that it was the duty of the government,
"wherever the insurgent power was overturned, and the territory
which had been dominated by it was occupied by the national forces,
to provide as far as possible, so long as the war continued, for
the security of persons and property, and for the administration of
To this was added the following:
"The duty of the national government in this respect was no
other than that which devolves upon the government of a regular
belligerent occupying, during war, the territory of another
belligerent. It was a military duty, to be performed by the
President as Commander-in-Chief, and entrusted as such with the
direction of the military force by which the occupation was
But it was not intended to express a limitation upon
Page 222 U. S. 572
the undoubted belligerent right to use and confiscate all
property of an enemy and to dispose of it at will. Miller v.
11 Wall. 268, 78 U. S. 305
and cases like it expressed and enforced
limitations to a certain extent upon such right growing out of the
policy of the government. It may be, as said by Kent (1 Kent 92),
"the general usage now is not to touch private property upon
land without making compensation unless in special cases dictated
by the necessary operations of war or when captured in places
carried by storm and which repelled all the overtures for a
It may also be, as further said by the learned commentator,
"if the conqueror goes beyond these limits wantonly, or when it
is not clearly indispensable to the just purposes of war, and
seizes private property of pacific persons for the sake of gain, .
. . he violates the modern usages of war."
92 and 93.
If the record presented such a case, the question could be
raised whether it presented one for judicial cognizance, even if a
court could share the indignation which the learned commentator
says all mankind would feel. It is certain that the court's power
cannot be enlarged by its emotions. Besides, we must regard the
seizure of the San Juan as an exertion of the war power, and by
this we do not mean as mere "booty of war," and the comments made
in Planters' Bank v. Union
16 Wall. 483, 83 U. S. 495
in regard to an attempt by the commander at New Orleans, fifteen
months after the occupation of the city by the national government,
to confiscate the indebtedness of one of the banks to the other, do
not apply. We only mean that the seizure was for the immediate use
of the Army -- a right recognized in that case, for we do not
accept the view contended for by claimants that, with the surrender
of Santiago and the cessation of active operations in the Santiago
district, enemy property lost such character and was not subject to
such right of capture. The war
Page 222 U. S. 573
was flagrant elsewhere, and in such case, Planters' Bank v.
is authority for the right, not against it. It was
there decided that the military commander at New Orleans
"had power to do all that the laws of war permitted, except so
far as he was restrained by the pledged faith of the government, or
the effect of congressional action."
Such pledge and effect existed, it was held, citing the case of
It may be said the indebtedness was not
absolutely exempt from confiscation as enemy's property, but only
that it was not, under the particular circumstances, "subject to
military seizure as booty of war." And "booty of war" was
distinguished from "a seizure for immediate use of the Army." This
is a distinction important to observe, and is recognized explicitly
or implicitly in all of the cases and references contained in the
able argument of counsel. It accommodates, when its full range is
properly understood, the necessities of the conqueror and the
personal and property rights, if they may be called such, of the
conquered. And there is nothing in the President's proclamation of
July 13, 1898, which militates against it. But suppose we should
grant the contrary. Suppose we should grant to the San
the broadest immunity from seizure or detention. We are
then brought to consider the quality of the act of the officers of
the army who seized and used her. It would seem easy to describe.
If it was done in violation of the President's proclamation, if it
was done in violation of the laws of war and the conditions arising
from the capitulation of Santiago, it was done in wrong, and
claimants encounter the prohibitions of the Tucker Act against the
jurisdiction of the Court of Claims. They are in the situation of
the claimant in Hijo v. United States,
Iron Co. v. United States.
A tort was committed against them,
and though committed in the interest of the United States, there is
no element of contract, and the action is one of which the Court of
Claims could not take jurisdiction, whatever
Page 222 U. S. 574
other redress is open to claimants. Indeed, we might have rested
this branch of the case on those cases, both for the requirements
of the Tucker Act and the rights and powers of belligerents,
conqueror or conquered. We have restated the propositions declared
only in deference to the earnestness and force of the argument of
claimants' counsel. And we rest the case on those propositions, and
do not enter into a consideration of the citizenship of claimants,
whether born in Spain and Spanish subjects when their vessel was
seized or Cuban by relation to the time either of the declaration
of Cuban independence or of its recognition by Congress, as
contended. If Spanish subjects, under the authority of Hijo v.
their right of indemnity for the seizure and
use of their vessel was taken away by the treaty between Spain and
the United States.