upon Circuit Courts of controversies "between citizens of a State and foreign states, citizens, or subjects," and that the following clause of the second section of the act was applicable: "Any other suit of a civil nature, at law or in equity, of which the circuit courts of the United States are given jurisdiction by the preceding section, and which are now pending, or which may hereafter be brought, in any state dourt, may be removed into the circuit court of the United States for the proper district by the defendant or defendants therein being non-residents of that State." The trial court denied the application and subsequently granted the relief prayed by the bill. On appeal the Supreme Court of the State of Pennsylvania affirmed the decree, and in the opinion delivered held that no error was committed in denying the application to remove. Because of this latter ruling the cause was brought here. fendants in error now move to dismiss the writ. The de The right to remove from the state court which was as serted had no legal foundation. Lenhart was charged with a repudiation of his obligations as trustee by a refusal to apply the trust funds as required by the trust agreement. Not only was an accounting by him asked and an injunction prayed to prevent him from disposing of the partnership property which was dedicated to the trust, but his removal as trustee was also sought. Under these circumstances it is plain on the face of the record that no possible rearrangement of the parties could have been made converting Lenhart into a party plaintiff which would be consistent with the relief which it was the object of the suit to obtain. In this state of the case the assertion that there was a denial of a Federal right by the overruling of the application to remove is so manifestly frivolous and devoid of merit as not to form the basis of jurisdiction and to render it necessary to grant the motion to dismiss. Writ of error dismissed. Syllabus. 222 Ù. S. HERRERA v. UNITED STATES. APPEAL FROM THE COURT OF CLAIMS. No. 89. Argued December 11, 12, 1911.-Decided January 15, 1912. 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, 2 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 Bank, 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 'n the opinion. 222 U.S. Argument for Appellants. Mr. Howard Thayer Kingsbury and Mr. Crammond Kennedy, with whom Mr. Frank D. Pavey was on the brief, for appellants: The President's instructions of July 13, 1898, govern the case at bar; and, while they were framed to meet the situation created by the capitulation of Santiago, they are in accordance with the laws of war defining the reciprocal rights and obligations of the occupying power and the inhabitants of the occupied territory-see decision of Sir William Scott (Lord Stowell) in the prize cases at capitulation of Genoa, 4 Robinson, Adm. Reps. 388. If the shipping was seized before the capitulation and not released by any of the articles, it could be held by the captor for condemnation or ransom, but if the seizure was made after that time, it would be considered, not as the exercise of any rights of war but as mere lawless rapine and plunder. See also 3 Phillimore's Int. Law, 3d ed. 192. As to legal effect of military occupation on the inhabitants and their property in the occupied territory, see The Venice, 2 Wall. 258, a vessel seized after capture of New Orleans, in which it was held that the vessel though undoubtedly enemy's property at the time she was anchored in Lake Pontchartrain, could not be regarded as remaining such after the sixth of May. This opinion was unanimous, and it has been cited by this court with approval in the following cases: The Baigorry, 2 Wall. 481; The Reform, 3 Wal.. 617; The Peterhoff, 5 Wall. 60; Ouachita Cotton, 6 Wall. 531; The Grapeshot, 9 Wall. 131; United States v. Padelford, 9 Wall. 541; Levy v. Stewart, 11 Wall. 253; Mail Co. v. Flanders, 12 Wall. 134; Hamilton v. Dillin, 21 Wall. 94; Desmare v. United States, 93 U. S. 611; Burbank v. Conrad, 96 U. S. 301; Clark v. United States, 99 U. S. 496. In Cross v. Harrison, 16 How. 164, it was held that the formation of the civil government in California, Argument for Appellants. 222 U.S. when it was effected, was the lawful exercise of belligerent right over a conquered territory, and that this power is given by the law of nations for the purpose of protecting the inhabitants of the occupied territory and their persons and property. And it is for this reason that, both under the common law and the law of nations, conquered states or districts retain their old laws until the conqueror or military occupant thinks fit to alter them. See Planters Bank v. Union Bank, 18 Wall. 483. All of the most recent authors concur in this view. See especially Les Requisitions Militaires du Temps de Guerre by Ch. Pont, 85, 86; Latifi's "Effect of War on Property,' London, 1909, 30; Bernier, "De l'Occupation Militaire," 108; Kent's Comm. 14th ed. 92. The rules and regulations prescribed by the President in his instructions of July 13, 1898, to the Secretary of War, were in accordance with the laws governing the firm and permanent occupation of enemy territory, apart from the fact of capitulation (as distinguished from capture by assault), or from the fact that the capitulated territory was held by the United States "in trust for the people of Cuba." Neely v. Henkle, 180 U. S. 109, 120. These rules were substantially the same as those formulated by the Brussels Conference in 1874 for the military occupation of enemy territory and incorporated in 1899 into the "Convention as to the Laws and Customs of War on Land," adopted at The Hague, to which the United States and all the leading powers of the world have become parties. These rules are substantially the same as Lieber's Code (General Order, No. 100), any differences being due to the fact that the latter were prepared for the conduct of the Army of the United States in a civil war in which the enemy was regarded as traitors and rebels and not (as in an international war) where each side is respected as doing its duty to its own country. General Orders No. 101 222 U.S. Argument for Appellants. were issued specifically to govern the situation resulting from the capitulation of Santiago. As to effect of such orders see United States v. Eliason, 16 Pet. 291, 302. As to sanctity of private property during war, as recognized by the United States, see treaty with Prussia of 1788, Art. XXIII, and treaty of 1848 with Mexico, in which both countries "solemnly pledged themselves to each other and the world" to observe the same rules "upon the entrance of the armies of either nation into the territories of the other." Two centuries earlier the sanctity of private property was stated in the strongest terms by Grotius (De Jure Belli et Pacis, Lib. III, Ch. XX, § VII, par. 1). In the code of Moses, barbarous as it was, a very much more humane treatment was prescribed for enemies who surrendered. (Deut. XX: 10-14.) The claimants were not Spanish subjects in the sense of the treaty, and their claims were not released by Spain to the United States. Hijo v. United States, 194 U. S. 315, does not apply to this case. There was no way provided in the treaty by which persons born in the island-the people of Cuba-like. the claimants in No. 90, could' preserve Spanish nationality and allegiance which they threw off when they declared their independence in 1895 and of which they were relieved (so far as the United States was concerned) by the declaration of their independence in and by the Joint Resolution of Congress of April 20, 1898. The claimants in No. 89 could have retained their Spanish nationality and allegiance under Art. IX, but they refused to do so because they had cast in their lot with the people of Cuba, thus becoming under the constitution of Cuba citizens of that republic by naturalization. When an act is done at one time and it operates upon the thing as if done at another time, it is said to do so by relation. 2 Bouvier's Dic., Rawle's Revision, 864; 24 VOL. CCXXII-36 |