1. This Court has no power to reverse, on appeal, the imposition
of a fine decreed by the circuit court for contempt of it.
2. A lease made July 8, 1865, during the military occupation of
New Orleans in the late rebellion by the array of the United
States, by the mayor of New Orleans (appointed by the general
commanding the department), pursuant to a resolution of the boards
of finance and of street landings (both boards appointed in the
same mariner), by which it lease of certain waterfront property in
the said city for ten years -- which lease called for large outlays
by the lessee, and was deemed by this Court otherwise a fair one --
sustained for its whole term, although in less than one year
afterwards (that is to say, on the 18th of March, 1866), the,
government of the city was handed back to the proper city
authorities.
3. The fact, that on the 9th of February, 1866 -- seven months
after the lease was made -- a "general order" from the Military
Department of Louisiana forbidding the several bureaus of the
municipal government of the city, created by military authority,
from disposing of any of the city property for a term extending
beyond a period when the civil government of the city might be
reorganized and reestablished in conformity to the constitution and
laws of the state
held not to have altered the case.
On the 1st of May, 1862, the army of the United States captured
the City of New Orleans. It was held by military occupation until
the 18th of March, 1866, when its government was handed over to the
proper city authorities. The condition of things which subsisted
before the rebellion was then restored. During the military
occupation, it was governed by a mayor, a board of finance, and a
board of street landings, appointed by the commanding general of
the department. On the 8th of June, 1865, Hugh Kennedy was thus
appointed mayor. On the 8th of July, 1865, as such mayor, pursuant
to a resolution signed by the chairman of the board of finance and
by the chairman of the board of street landings, both boards having
been appointed in the same manner as himself, Kennedy executed to
the appellees
Page 87 U. S. 388
a lease of certain waterfront property therein described. The
lease made the following provisions:
The city granted to the company the right to enclose and occupy
for their exclusive use the demised premises for the term of ten
years.
The company was as its own expense to build a new wharf in front
of the landing, as designated, with new bulkheads to retain the
levee earthworks throughout the whole extent of the front assigned
to them, they furnishing the requisite labor and materials, to keep
the structure in complete order and repair until the termination of
the lease, and then to deliver it to the city authorities in that
condition, natural wear and tear only excepted. The company was to
have the right, at its own cost, to construct buildings and sheds
within the enclosed space as should be required for the transaction
of their shipping and freighting business. The wharves were to be
completed within a year from the date of the lease, of new
materials, in a workmanlike manner, and to be protected by a line
of heavy fender piles in front of sufficient size and strength to
enable the largest of the company's ships to land and load at the
wharf without damage. All the improvements, consisting of wharves,
bulkheads, fender piles, sheds, buildings, and enclosures, were to
be kept in good repair by the company until the expiration of the
lease.
The lease was not to be transferred without the city's consent
and, in case of default by the company to fulfill its engagements,
the city had the right to annul it. At the expiration of the lease,
all the improvements made by the company were to become the
property of the city. The company agreed to pay an annual rent of
$8,000 in monthly installments, for which it gave its promissory
notes, one hundred and twenty in number.
The company expended more than $65,000 in making the
improvements specified in the lease, and duly paid its notes as
they matured down to the 11th of April, 1866, including the one
then due.
On the 18th of that month, the city surveyor, aided by a
Page 87 U. S. 389
number of laborers, acting under an order of the city council,
approved by the mayor, destroyed the fence or enclosure erected by
the company. It had cost them $7,000. The company filed a bill and
supplemental bill whereby they prayed for an injunction and
damages. The notes for rent given by the company and then unpaid
were delivered by the military authorities to the proper city
authorities when the government of the city was transferred to the
mayor and council. Those unpaid when this litigation was begun were
held by the city then and for several months afterwards. They were
tendered to the company by a supplemental answer in this case and
deposited in court, where they still remained. The note last paid
matured and was paid before the enclosure was destroyed. The city
had not tendered back the money so paid, nor had it disclaimed the
validity of the payment, nor had it tendered back the amount or any
part of it, expended by the company in making the improvements, nor
made any offer touching the subject.
In the process of the litigation, the then mayor, Clark, applied
to the Third District Court of the city for an injunction to
restrain the company from rebuilding the enclosure which had been
destroyed, and an injunction was granted accordingly.
The company thereupon served a rule upon Clark to show cause why
he should not be punished for contempt in taking such action in
another tribunal. At the final hearing of the case, the city
offered in evidence order No. 11 of Mayor General Canby, commanding
the military department of Louisiana. The order was dated at New
Orleans, February 9, 1866, and was thus:
"The several bureaus of the municipal government of the City of
New Orleans, created by and acting under military authority, are
enjoined and prohibited from alienating or in any manner disposing
of the real estate or other property belonging to the city or
granting any franchise or right to corporations or individuals for
a term extending
beyond such period as the civil government of
the city may be reorganized and reestablished under and in
conformity to the constitution and laws of the state, and
Page 87 U. S. 390
any alienation, disposition, or grant will be subject to any
rights and interest of the general government which may be
involved, and shall not extend beyond the time when the questions
relative to those rights and interest may be determined by
competent authority."
The court refused to receive the order in evidence, and the city
excepted.
The following facts were agreed on by the parties:
"From the execution of the lease to the 18th of April, 1866, the
company had been in peaceable possession of the demised premises
and had performed all its obligations under the lease. No notice
was given by the city of the intended demolition of the enclosure,
and it was done early in the morning. Under its charter of 1856,
the city had, before the war, leased portions of its wharves to
individuals and companies, and had in one instance farmed out the
collection of levee dues upon all the wharves by sections. The
damages resulting from the destruction of the company's buildings
&c., and the necessary employment, in consequence of this
destruction, of additional watchmen amounted to $8,000."
At the hearing, the court decreed that Clark, the mayor, should
pay a fine of $300 for the contempt of the court wherewith he was
charged; that the city should be enjoined from interfering with the
possession and enjoyment of the demised premises by the company
during the life of the lease, and that the company should recover
from the city $8,000 for damages, and that the city should pay the
costs of the suit.
It was from this decree that the present appeal was taken.
Page 87 U. S. 392
MR. JUSTICE SWAYNE (having stated the case) delivered the
opinion of the Court.
The questions presented for our consideration are questions of
law. The facts are undisputed. Our remarks will be confined to the
several objections to the decree taken by the counsel for the
appellant.
The fine of three hundred dollars imposed upon the mayor is
beyond our jurisdiction. Contempt of court is a specific criminal
offense. The imposition of the fine was a judgment in a criminal
case. That part of the decree is as distinct from the residue as if
it were a judgment upon an indictment for perjury committed in a
deposition read at the hearing. [
Footnote 1] This Court can take cognizance of a criminal
case only upon a certificate of division in opinion. In
Crosby's Case, Mr. Justice Blackstone said: "The sole
adjudication for contempt, and the punishment thereof, belongs
exclusively and without interfering to each respective court." The
circuit court, having first acquired possession of the original
case, was entitled to hold it exclusively until the case was
finally disposed of. [
Footnote
2] Any relief to which the city was entitled should have been
sought there, and that
Page 87 U. S. 393
court was competent to give it either in the original or in an
auxiliary case. As to any other court, the matter was
ultra
vires. [
Footnote 3] It was
unnecessary, unwarranted in law, and grossly disrespectful to the
circuit court to invoke the interposition of the state court as to
anything within the scope of the litigation already pending in the
federal court.
The order of General Canby, No. 11, was issued seven months
after the lease was made. The rights it conferred upon the lessees,
whatever they were, had then become fully vested. The order did not
purport to annul the lease. It prescribed a rule of conduct as to
giving such leases in the future, and concluded as follows:
"And any alienation, disposition, or grant will be subject to
any rights and interest of the general government which may be
involved, and shall not extend beyond the time when the questions
relative to those rights and interest may be determined by
competent authority."
It does not appear that the government ever took any action
touching this lease. The order could not, therefore, in any view,
affect the rights of the parties. The court did not err in refusing
to receive it in evidence.
It has been strenuously insisted that the lease was made by
Kennedy without authority, was therefore void
ab initio,
and if this was not so that its efficacy, upon the principle of the
jus post liminium, wholly ceased when the government of
the city was surrendered by the military authorities of the United
States to the mayor and council elected under the city charter.
Although the City of New Orleans was conquered and taken
possession of in a civil war waged on the part of the United States
to put down an insurrection and restore the supremacy of the
national government in the Confederate states, that government had
the same power and rights in territory held by conquest as if the
territory had belonged to a foreign country and had been subjugated
in a foreign
Page 87 U. S. 394
war. [
Footnote 4] In such
cases, the conquering power has a right to displace the preexisting
authority and to assume to such extent as it may deem proper the
exercise by itself of all the powers and functions of government.
It may appoint all the necessary officers and clothe them with
designated 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. These principles have the sanction of all publicists
who have considered the subject.
They have been repeatedly recognized and applied by this Court.
[
Footnote 5] In the case last
cited, the President had, by proclamation, established in New
Orleans a Provisional Court for the State of Louisiana and defined
its jurisdiction. This Court held the proclamation a rightful
exercise of the power of the executive, the court valid, and its
decrees binding upon the parties brought before it. In such cases,
the laws of war take the place of the Constitution and laws of the
United States as applied in time of peace. It follows as a
corollary from these propositions that the appointment of Kennedy
as mayor and of the Boards of Finance and of Street Landings was
valid, and that they were clothed with the powers and duties which
pertained to their respective positions.
It can hardly be doubted that to contract for the use of a
portion of the waterfront of the city during the continuance of the
military possession of the United States was within the scope of
their authority. But, conceding this to be so, it is insisted that
when the military jurisdiction terminated, the lease fell with it.
We cannot take this view of the subject. The question arises
whether the instrument was a
Page 87 U. S. 395
fair and reasonable exercise of the authority under which it was
made. A large amount of money was to be expended and was expended
by the lessees. The lease was liable to be annulled if the
expenditures were not made and the work done within the limited
time specified. The war might last many years, or it might at any
time cease and the state and city be restored to their normal
condition. The improvements to be made were important to the
welfare and prosperity of the city. The company had a right to use
them only for a limited time. The company was to keep them in
repair during the life of the lease, and at its termination they
were all to become the property of the city. In the meantime, the
rental of eight thousand dollars a year was to be paid.
When the military authorities retired, the rent notes unpaid
were all handed over to the city. The city took the place of the
United States and succeeded to all their rights under the contract.
[
Footnote 6] The company became
bound to the city in all respects as it had before been bound to
the covenantees in the lease. The city thereafter collected one of
the notes subsequently due, and it holds the fund, without an offer
to return it, while conducting this litigation. It is also to be
borne in mind that there has been no offer of adjustment touching
the lasting and valuable improvements made by the company, nor is
there any complaint that the company has failed in any particular
to fulfill their contract.
We think the lease was a fair and reasonable exercise of the
power vested in the military mayor and the two boards, and that the
injunction awarded by the court below was properly decreed. The
jus post liminium and the law of nuisance have no
application to the case.
We do not intend to impugn the general principle that the
contracts of the conqueror touching things in conquered territory
lose their efficacy when his dominion ceases.
We decide the case upon its own peculiar circumstances, which we
think are sufficient to take it out of the rule.
Page 87 U. S. 396
We might perhaps well hold that the city is estopped from
denying the validity of the lease by receiving payment of one of
the notes, but we prefer to place our judgment upon the ground
before stated.
Judgment affirmed.
JUSTICES CLIFFORD, DAVIS, and BRADLEY did not hear the argument
of this case, and did not participate in the judgment.
[
Footnote 1]
Crosby's Case, 3 Wilson 188;
Williamson's
Case, 26 Pa.St. 24;
Ex Parte
Kearney, 7 Wheat. 41.
[
Footnote 2]
Taylor v.
Taintor, 16 Wall. 370;
Hagan v.
Lucas, 10 Pet. 400;
Taylor
v. Carryl, 20 How. 584.
[
Footnote 3]
Freeman v.
Howe, 24 How. 450;
Buck v.
Colbath, 3 Wall. 334.
[
Footnote 4]
The Prize
Cases, 2 Black 636;
Mrs.
Alexander's Cotton, 2 Wall. 417;
Mauran v.
Insurance Company, 6 Wall. 1.
[
Footnote 5]
Cross v.
Harrison, 16 How. 164;
Leitensdorfer v.
Webb, 20 How. 176;
The
Grapeshot, 9 Wall. 129.
[
Footnote 6]
United States v. McRae, 8 Law Reports, Equity Cases
75.
MR. JUSTICE HUNT, concurring.
I cannot assent to the proposition that the agents of the city
appointed by the conquering power which captured it had authority
to execute a lease of its levees and wharves continuing more than
nine years after the conquering power had abdicated its conquest.
If an extension of nine years may be justified, it would be
difficult to repudiate an extension for ninety years if that case
should be presented. The lease under consideration was executed on
the 8th day of July, 1865, to continue for the term of ten years.
On the 18th of March, 1866, eight months and ten days afterwards,
the military authority of the United States was withdrawn and the
civil authority resumed its sway. The lease continued for that
length of time during the military occupation of the city, and by
its terms was to continue nine years, three months, and twenty days
after the military dominion did in fact cease to exist. That the
execution of this lease was an unwarranted assumption of power by
the agents who made it, I quote Halleck on International Law and
the Laws of War. [
Footnote 2/1] He
uses this language:
"§ 4. Political laws, as a general rule, are suspended during
the military occupation of a conquered territory. The political
connection between the people of such territory and the state to
which they belong is not entirely severed, but is interrupted or
suspended so long as the occupation continues. Their lands and
immovable property are therefore
Page 87 U. S. 397
not subject to the taxes, rents &c., usually paid to the
former sovereign. These, as we have said elsewhere, belong of right
to the conqueror, and he may demand and receive their payment to
himself. They are a part of the spoils of war, and the people of
the captured province or town can no more pay them to the former
government than they can contribute funds or military munitions to
assist that government to prosecute the war. To do so would be a
breach of the implied conditions under which the people of a
conquered territory are allowed to enjoy their private property and
to pursue their ordinary occupations, and would render the offender
liable to punishment. They are subject to the laws of the
conqueror, and not to the orders of the displaced government. Of
lands and immovable property belonging to the conquered state, the
conqueror has, by the rights of war, acquired the use so long as he
holds them. The fruits, rents, and profits are therefore his, and
he may lawfully claim and receive them. Any contracts or
agreements, however, which he may make with individuals farming out
such property will continue only so long as he retains control of
them, and will cease on their restoration to, or recovery by, their
former owner."
To which he cites Heffter, [
Footnote
2/2] Vattel, [
Footnote 2/3]
American Insurance Co. v. Canter, [
Footnote 2/4] and other authorities.
See also Thirty
Hogsheads of Sugar v. Boyle. [
Footnote 2/5]
The wharves and levees now in question were land and immovable
property belonging to the conquered state. The fruits and rents of
them were spoils of war which belonged to the conqueror so long as
he held the conquered state. When the possession of the conqueror
was at an end, the rights belonging to a conqueror ceased also. The
spoils of war do not belong to a state of peace.
It is said that although this doctrine may be sound generally,
it is not applicable to our recent civil war. But why not? The
State of Louisiana was in rebellion against the United States
government. It had formally disavowed its
Page 87 U. S. 398
association with the United States, and had formally become a
member of another and hostile confederated government. The United
States invaded its territory and captured its commercial
metropolis, not figuratively or metaphorically, but literally and
physically; with its ships, its cannon, and its men it battered
down the forts built for its protection and drove out the armies by
which it was defended. What it thus acquired by military power, it
retained by the same power.
The armies of the revolting states were overthrown, and peace
ensued. It was not, as the ancient historian said,
"solitudinem
faciunt, pacem appellant," but rest, repose, and rights
restored. The State of Louisiana was again the sovereign authority
in which all the administrative power of the state was vested. The
City of New Orleans, as a representative of the state and under its
authority, possessed the absolute control of its municipal powers
in the same manner and to the same extent as it possessed and
exercised them before the existence of the war. The displaced
government resumed its sway. The conqueror's possession ceased.
The State of Louisiana and the Confederate government were
public enemies, not unsuccessful revolutionists merely. The forts
of the Confederate states were blockaded as those of a foreign
enemy, and vessels taken in attempting to enter them were adjudged
prizes of war. A prize court is in its very nature an international
tribunal. Their captured soldiers were not shot as rebels, but were
exchanged as prisoners of war. All intercourse between the citizens
of the contending states was illegal, contracts were dissolved or
suspended, their property within our states was confiscated to the
public use. In short, we were at war with them. It is difficult to
understand why the postliminy doctrine is not applicable under such
circumstances.
In
Fleming v. Page, [
Footnote 2/6] Chief Justice Taney says:
"The port of Tampico, at which the goods were shipped, and the
Mexican state of Tamaulipas, in which it is situated, were
undoubtedly,
Page 87 U. S. 399
at the time of the shipment, subject to the sovereignty and
dominion of the United States. The Mexican authorities had been
driven out or had submitted to our army and navy, and the country
was in the exclusive and firm possession of the United States and
governed by its military authorities, acting under the order of the
President. But it does not follow that it was a part of the United
States or that it ceased to be a foreign country in the sense in
which these words are used in the acts of Congress. . . . While it
was occupied by our troops, they were in an enemy's country, and
not in their own; the inhabitants were still foreigners and
enemies, and owed to the United States nothing more than the
submission and obedience, sometimes called temporary allegiance,
which is due from a conquered enemy when he surrenders to a force
which he is unable to resist. Tampico, therefore [he says], was a
foreign port when this shipment was made."
This case is authority to the proposition that conquest and
temporary military possession do not alter the national character
of a city or port. As Tampico remained Mexican notwithstanding its
conquest by our armies, so New Orleans, so far as the
jus post
liminii is concerned, remained a part of the Southern
Confederacy.
There is, however, another view of the case that may be
taken.
The care, custody, and control of wharves and levees is
legitimately within the power of the city. Like streets and
highways, they may be opened or closed in the discretion of the
city. The mode in which they shall be used, how managed and
regulated, whether open to the use of all indifferently, whether
portions shall be set apart for particular uses, whether certain
classes of business shall be confined to particular localities,
whether controlled by the immediate agents of the city or managed
by those to whom the city may lease them, are matters of police
regulation to be settled by the authorities of the city. [
Footnote 2/7] In none of the cases is it
to
Page 87 U. S. 400
be assumed that the power will be willfully exercised to the
injury of the city.
In my view, the agents of the city who made the lease of July
18, 1865, which we are now considering, exceeded the authority they
possessed. Their authority was limited to the time of the
possession and control of the lots by the military authority which
appointed them. The making of the lease, however, was not an
illegal act in any other sense than that the agents had exceeded
their powers. The excessive acts of those agents were capable of
ratification, and if ratified, were as binding upon the principal
as if originally authorized.
It appears that the lessees gave their notes (one hundred and
twenty notes in number) for $666.66 each, payable monthly, for the
whole amount of the rent to become due. The first nine of the notes
were paid to the mayor and bureau acting under the military
authority. The government of the city now in power was elected by
the citizens according to law, in the ordinary manner, upon the
resumption by the state and city of their civil powers, and was
vested with the entire authority of the city in respect to wharves,
levees, their management and control. Upon the principles already
stated, it had power to lease the levee and wharf in question to
the steamship company for the period named in the lease. Prior to
the war, it had leased portions of its wharves to individuals, and
had farmed out the collection of the levee dues upon the entire
wharves by sections. [
Footnote
2/8]
It came into possession of the city government upon the election
of its citizens on the 18th of March, 1866. Twenty-four days
thereafter, to-wit, on the 11th of April, 1866, the note for
$666.66 due three days previously, was paid to the city government.
At the same time, all the other notes, one hundred and eleven in
number, were transferred by the military government to the new city
administration. These notes were retained by the city until several
months after the present action was begun, when they were tendered
to
Page 87 U. S. 401
the plaintiff by supplemental answer. No tender was ever made of
the money, $666.66, received by the city upon the note paid to it
by the plaintiff for the rent due April 8, 1866. It now holds and
enjoys, to that amount, the rent received by it under a lease which
it seeks to repudiate.
The reception and holding of this rent is a clear and
unqualified act of ratification, which bars the defense of a want
of authority to execute the lease from which it issued. It is in
violation of every principle of honesty and of sound morality that
one should retain the benefit of the Act of his agent and at the
same time repudiate such act. [
Footnote
2/9]
A ratification once made, with a knowledge of all the material
circumstances, cannot be recalled. [
Footnote 2/10] A ratification of a part of a contract
ratifies the whole. [
Footnote
2/11] One act of ratification is as complete and perfect in its
effect as any number of acts of the same character.
For these reasons I am able to concur in the affirmance of the
judgment.
[
Footnote 2/1]
Page 780, § 4.
[
Footnote 2/2]
Droit International, §§ 131-133, 186.
[
Footnote 2/3]
Droit des Gens, liv. 3, ch. 13, § 197
et seq.
[
Footnote 2/4]
26 U. S. 1 Pet.
542.
[
Footnote 2/5]
13 U. S. 9 Cranch
191.
[
Footnote 2/6]
50 U. S. 9 How.
614 &c.
[
Footnote 2/7]
Slaughter-House
Cases, 16 Wall. 36.
[
Footnote 2/8]
1 Dillon on Municipal Corporations §§ 43, 64, 67, 74, 181.
[
Footnote 2/9]
Story on Agency, §§ 239, 240, 252-254, 259;
Bissell v.
Michigan Southern & Northern Indiana Railroad Company, 22
N.Y. 258;
Parrish v. Wheeler, ib. 504;
Perkins v.
Washington Insurance Co., 4 Cowen 645;
Peterson v.
Mayor, 17 N.Y. 449.
[
Footnote 2/10]
Story on Agency § 242.
[
Footnote 2/11]
Ib. and § 250.
MR. JUSTICE FIELD, dissenting.
I am unable to agree with the majority of the Court in the
judgment rendered. The power of the mayor and board of New Orleans,
appointed by the commanding general upon the military occupation of
that city, terminated with the cessation of hostilities, and I am
of opinion that no valid alienation of any portion of the levee
front and landing of the city could be made by them for any period
extending beyond such occupation.
Assuming, as asserted, that the capture of New Orleans gave to
the military authorities of the Union the same rights with respect
to property there situated which would attend the conquest of a
foreign country, the result in not different. A temporary conquest
and occupation of a country do not
Page 87 U. S. 402
change the title to immovable property or authorize its
alienation. They confer only the rights of possession and use. When
the military occupation ceases, the property reverts to the
original owner with the title unimpaired.
"Of lands and immovable property belonging to the state," says
Halleck,
"the conqueror has by the rights of war acquired the use so long
as he holds them. The fruits, rents, and profits are therefore his,
and he may lawfully claim and receive them, but contracts or
agreements, however, which he may make with individuals farming out
such property will continue only so long as he retains control of
them, and will cease on their restoration to or recovery by their
former owner."
Such is the language of all publicists and jurists, and there is
nothing in the circumstances attending the military occupation of
New Orleans by our forces which calls for any modification of the
well established rule of public law on this subject. The fact that
New Orleans is a part of one of the states of the Union certainly
ought not to be deemed a reason for enlarging the power of the
military commander, but, on the contrary, would seem to be good
ground for restricting it.
It appears to me to be perfectly clear that, according to
settled doctrines of public law, questioned by no publicists but
everywhere recognized, the authorities of New Orleans were restored
to as complete control over the levee front and landing of the city
upon the cessation of the military occupation as they possessed
previously, and had in consequence a perfect right to remove all
obstacles to the public use of such levees and landings.
I do not see any ground for the application of the doctrine of
ratification in the case. The civil authorities of the city were
restored to power in March, 1866, and in April following they
asserted their right to remove the obstructions to the levees
created by the steamship company, and took steps to enforce it. In
this proceeding they repudiated, instead of ratifying, the action
of their military predecessors. The one
Page 87 U. S. 403
hundred and eleven unpaid notes of the company received by their
predecessors have been deposited in court subject to the company's
order, and the failure to restore or tender the proceeds of one
note, amounting to six hundred and sixty-six dollars, previously
paid, may be justified or explained on grounds consistent with the
repudiation of the lease. Ratification of unauthorized acts of
public agents or persons assuming to be public agents can only be
inferred from conduct indicating an intention to adopt the acts and
inconsistent with any other purpose. The alienation by sale or
lease of any portion of the public levees and landings of the city
after the restoration of its civil authorities could only be made,
if at all, by ordinance or resolution of its common council, and it
may be doubted whether there could be a ratification of an
unauthorized alienation, attempted by their predecessors, by any
proceeding less direct and formal.
I am of opinion, therefore, that the decree of the court below
should be reversed and the bill be dismissed.
* On International Law, chap. 32, § 4.