
    LOBSIGER’S CASE. Rudolph Lobsiger v. The United States.
    
      On the Proofs.
    
    
      The elaimant establishes his loyalty, and seeks to recover the proceeds of ootton tvhieh ■was captured at Charleston in February, 1865, by the United States military authorities, sold, and the money paid into the Treasury. He is an alien; a subject of Switzerland. Under the constitution of that country, and statutes in furtherance thereof, the federal tribunal has jurisdiction of “disputes between, tlie Confederation on the one side and corporations or individuals on the other, when these corporations or private citizens are complainants, and tlie object of litigation is of the value of at least 3,000 francs.”
    By the Treaty 25th November, 1880, (11 Stat. L., p. 587,) it is provided that citizens of the United States “shall beat liberty to prosecute and defend their rights before courts of justice in the same manner as native citizens of Switzerland.”
    When, by the laws of Switzerland, a private citizen may maintain an action against the Confederation in its federal tribunal, if the object of litigation is of the value of at least 3,000 francs, ancl when, by Treaty 25th November, (11 Stát. L., 1860, p. 587,) citizens of tlie United States “ shall be at liberty to prosecute and defend their rights before courts of justice in the same manner as native citizens,” the government of Switzerland will be deemed to “accord to citizens of the United States the right to prosecute claims against such government in its courts,” within the meaning of the Act 27th July, 1868, (15 Stat. L., p. §2.) Hence a citizen of Switzerland may maintain an action for the proceeds of captured jrroperty in the Court of Claims.
    
      Messrs. Cooley & Clarice for tbe claimant:
    The claim, as originally brought, was for eight bales of upland cotton and one hundred barrels of rosin. By permission of the court, claimant has withdrawn the claim for the rosin, not having any return from the department as to its receipt or the disposition made of it.
    The cotton was bought of a countryman of claimant’s who lived at Branchvillé, South Carolina, sixty-two miles from Charleston, an old man, who was a neutral, and not in any way engaged in the war or against our C-overnment.
    The cotton had been bought before the date of the bill, but was finally paid for on that day.
    I. The claimant is an alien, and a subject of the Swiss Confederation. The United States interposed the plea of alienage to this action, under the provisions of section 2 of the act of Congress approved July 27, 1868. The claimant replies to this plea, that he is within the exception made by the proviso in said section.
    II. The replication to the plea of alienage requires the claimant to establish the existence of the fact upon which the replication is based. The proposition to be maintained, therefore, is, that American citizens domiciled in Switzerland may maintain their actions against the Swiss Confederation, in the courts therein established, for any violation by that government of their rights of property.
    By article I of the treaty between the United States and the Swiss Confederation, concluded November 25, 1850, it is provided, among other things, as follows:
    “ The citizens of the United States of America, and the citizens of Switzerland, shall have free access to the tribunals, and shall be at liberty to prosecute and defend their rights before courts of justice in the same manner as native citizens, either by themselves, or by such advocates, attorneys, or other agents as they may think proper to select.”
    In article II of this treaty it is further provided that: “ In case of war, or of expropriation for purposes of public utility, the citizens of one of the two countries, residing or established in the other, shall be upon an equal footing with the citizens of the country in which they reside, with respect to indemnities for damages they may have sustained.” (11 Stat. L., p. 587.)
    In order to make the provisions of the treaty operative, it is for the claimant to establish the further fact that there is established in Switzerland a tribunal to which the citizens of that country may resort for redress, in cases of wrong committed by that government against its own citizens. By the testimony of John Hitz, the Swiss consul geneTal at Washington, the constitution of the Swiss Confederation is proved.- In that constitution provision is made for the establishment of a federal tribunal of justice as follows:
    “Article XCIV. In order to facilitate the administration of justice, so far as it lies within the jurisdiction of the Union, a federal tribunal of justice is'established.
    “Article OI. The federal tribunal decides on 'such civil cases, 1, as disputes which do not pertain to public law; a, between cantons themselves; b, between the Union and a canton; 2, as disputes between the Union on the one part, and corporations or individuals on the other, when such corporations or individuals are plaintiffs, and the object in dispute is of considerable importance, which latter federal legislation determines.”
    In order to make these provisions of the constitution of the Swiss Confederation effective, an act was passed by the Swiss federal assembly, making provision for the organization of the federal judiciary. So much of that act as is material to this inquiry is as follows:
    The federal tribunal takes cognizance of,
    1, disputes which do not relate to state rights; a, between cantons ; b, between the Confederation and a canton; c, between foreign claimants and the Confederation upon reference being made by the federal council, or by the federal assembly. 2, disputes between the Confederation on one side and corporations or individuals on the other, lohen these corporations or private citizens are •complainants, and the object of litig'atidn is of the value of at least ■3,000 francs. Law 5th June, 1849.
    
      Another act, giving effect to the second clause of the 101st-article of the fourth chapter of the constitution of the Swiss Confederation, was passed November 20, 1850; and the title of the act, translated into English, is “Federal law, relative to jurisdiction in several cases between the Union or the Confederation, which are preferred by or against the Confederation.” The second section of that statute, translated literally into English, is “ Jurisdiction of the federal court or tribunal.”
    “Article 1. Disputes which do not partake of a states rights character; a, between the Confederation and a canton; 5, between foreign complainants and the Confederation, upon direction or authority of the federal council or the federal assembly.
    “Article 2» Disputes between the Confederation on the one party and corporations or private citizens on the other, when these corporations of private citizens are complainants, and the article in dispute attains the value of at least three thousand francs.”
    
    
      Mr. E. 8. Hale, special counsel of the Treasury, for the defendants :
    . Only six bales of cotton seem to have come to the hands of the government.
    Claimant’s proof of loyalty is deficient. The only evidence on the subject is that of Heidt and Heinsohn. It entirely fails to establish that he never gave aid or comfort to the rebellion.
    Claimant is a citizen of the Swiss republic.
    No proof is made that that government accords to citizens of the United States the right to prosecute claims against the government in its courts, or of the laws of Switzerland in any respect. The claimant is therefore excluded from his standing-in this court by the 2d section of the act of 27th July, 1868.
    The claimant relies upon the terms of the treaty of Switzerland with the United States of 25th November, 1850. (Stat. L., vol. XI, p. 587-589, articles 1 and 2.)
    This treaty provides in effect that the citizens of each of the contracting countries shall have in the other free access to the tribunals, and .shall be at liberty to prosecute and defend their rights before the courts of justice in the same manner as native citizens. (Article 1, page 588.) And that in case of war the citizens of each, residing or established in the other, shall be placed upon an equal footing with the citizens of tbe country in which they reside, with respect to indemnities for damages-they may have sustained. (Article 2, page 589.) •
    These provisions are claimed by the counsel for claimant to establish the right of the claimant to sue in this court on an equality with American citizens,
    If they have such application, the provisions of the treaty are superseded, and in effect abrogated in that respect, by the provisions of the statute of 27th July, 1868.
    It is only by force of the constitutional provision that the provisions of a treaty ever take effect as municipal law. Irrespective of the constitutional provision,.the treaty has only the force of a contract, by which the government undertakes that it will carry into effect that for which they contract. Its effect is political merely, and until its provisions are carried into effect by proper statutory provision it forms no part of the law of the land.
    Under the provisions of the Constitution, (article 6,) treaties are made part of the supreme law of the land, on an equality with the acts of Congress, and only so.
    When, therefore, an existing act of Congress is changed by the terms of a treaty, the treaty so far repeals or abrogates the statute; and, on the other hand, when the terms of an existing treaty are changed by a subsequent act of Congress, the latter controls and determines the law.
    This whole subject is fully discussed, and the doctrine here claimed established, by Mr. Justice Curtis in the case of Taylor v. Morton. (2 Curtis C. C. K., 454.)
    The claimant having made no proof of the existence of such court, or of any right or means accorded to citizens of the United States for the prosecution of claims against the Swiss government in its courts, has no standing here.
   Casey, Ch. J.,

delivered the opinion of the court:

The claimant sues to recover the net proceeds of eight bales of cotton, which he alleges he owned, and which, after the capture of Charleston, South Carolina, by the Union army in February, 1865, was seized and sold, and the proceeds paid into the Treasury of the United States.

Upon tlie bearing, tbe proofs established tbe following facts:

1. That in February, 1805, tbe claimant was a citizen of tbe republic of Switzerland, resident for some years prior to that time at Charleston, South Carolina.

2. That during the war of the rebellion he did no act inconsistent with bis character of a resident neutral, and gave no aid or comfort to tbe rebéllion, or to persons engaged therein.

3. That at the time of the capture of said city, be was the bona fide owner of seven bales of upland cotton, which were seized under the authority of the United States and were sold, and the net proceeds, amounting to $912 90, are now in the Treasury of the United States.

4. That by the laws of'tlie republic of Switzerland, of which the claimant is a citizen, tlie right is accorded to citizens of the United States to prosecute any claims they may or might have against the said government of Switzerland, in the courts of that nation.

And upon the facts so found, the court bold, as a conclusion of law, that the said claimant is entitled to recover the said net proceeds. And judgment is entered in bis favor in the sum of $942 90.  