
    DIEKELMAN’S CASE.
    (8 Court of Claims R., 371; 92 U. S. R., 520.)
    Eugene Diekelman, appellee, v. The United States, appellants.
    
      On the defendants’ Appeal.
    
    
      In August, 1862, after the opening of the port of New Orleans by the President’s proclamation, (12 May, 1862,) a Prussian vessel enters the port. When ready to sail a clearance is refused by order of the general commanding, upon the ground that she has on board goods contraband of war. The master refuses to give up the goods unless the bills of lading signed by him are returned, but offers to let the general take the goods from the ship. Tim the latter refuses to do, and the ship is detained. Subsequently they are taken from the ship by force, after which she is cleared, the master protesting against the detention. The claim of the owners is pressed through diplomatic correspondence. Congress pass a private act referring it to the Court of Claims. The court below decides that the treaty with Prussia, 1799, allowing either nation to stop a ship of the other carrying goods contraband of war, “ paying, however, a reasonable compensation for the loss,” is applicable to this case, and that a foreign subject coming into a port of this country under the President’s proclamation declaring the port open to commerce, is not subject to martial law. Judgment for the claimant. The defendants appeal.
    
    I. When the claim of a foreigner has been the subject of diplomatic correspondence between his own and the'American Government, and is of such a nature that ordinarily it could only be pressed through the intervention of his own government, and Congress pass an act referring his claim to a court “ for its decision in accordance with law,” the case must be treated by the court, for the purposes of its decision, as though the foreign government were seeking to enforce the rights of its subject in a suit at law, which the two governments have agreed may be instituted for that purpose.
    II. A merchant-vessel of a foreign nation, coming into the port of New Orleans in 1862, after the port had been thrown open to commerce by the proclamation of the President, May 12, 1862, came in subject to its conditions not to carry out goods contraband of war, and to await a clear■ance showing no violation of the license. If the military commander there had reason to believe that goods shipped on board were contraband of war, he might forbid a clearance until the master should give up such goods, and no liability would ensue for the detention of the vessel.
    III. A treaty which authorizes either power to stop the vessels of the other, “paying, hoivever, a reasonable compensation for the loss' such arrest shall 
      
      occasion,” and then allowing the vessel “ to proceed on Tier voyage,” (Treaty with Prussia IIth July, 1799, 8 Stat. L., p. 168, art. xiii,) cannot he extended by construction to a refusal to grant a eloarance from the port in which the vessel is before her voyage begins. It relates to the right of search after the vessel has cleared and is upon her voyage. Detention in port because goods contraband of war have been laden, contrary to the terms of the license under which she came into port, does not entitle her to compensation under the treaty.
    
      The Reporters’ statement of the ease :
    The terms of the treaty and of the President's proclamation, opening the port of New Orleans, will be found in the opinion of the Supreme Court. The following are the facts found by the court below:
    The claimant, at the time of the occurrence of the matters hereinafter stated, was, and still is, a subject of the King of Prussia, and was the owner of the ship Essex, and prosecutes this suit under the authority of a joint resolution passed by Congress on the 4 th of May, 1870, entitled “Joint resolution to enable the Court of Claims to hear and determine the claim of E. Diekelman, a subject of the King of Prussia.”
    On the 19th day of June, 1862, the said ship sailed from the port of Liverpool, England, for the port of New Orleans, Louisiana, where she arrived on the 24tb of August, 1862; at which time, and while said ship remained in said port, the city of New Orleans and its port were in possession of the military forces of the United States engaged dn the suppression of the rebellion, and Major-General B. F. Butler was in command of said military forces. The said, city was practically in a state of siege by land, but open by sea, and was held by those forces under martial law.
    The commanding general was expressly enjoined by the Government to take measures that no supplies went out of New Orleans which could afford aid to the rebels. In pursuance of that inj unction, and actin g upon his responsibility as commander, he issued orders in regard to any exportation from New Orleans of any money, goods, or property on account of any person known to be friendly to the rebel confederacy, and directed the custom-house officers to inform him when anything was sought to be sent out which might be the subject of investigation in that behalf.
    
      In the early part of September, 1862, the said commanding general was informed that a large quantity of clothing had been bought in Belgium for and on the account of the rebel confederacy, and was lying at Matamoras awaiting delivery, because the confederate government had failed to get the means they expected from New Orleans to pay for it; and that another shipment, amounting to half a million more, was delayed in Belgium from coming forward because of the non-payment of the first shipment. And the said commanding general was also informed that it was expected the first payment would go forward through the agency of some foreign consuls; which information afterward proved to be correct.
    Early in said September the said commanding general was informed that the said ship Essex was loadingfor some foreign port; and he was informed by the custom-house officers that large quantities of silver-plate and bullion were being shipped on her, and that they were contained in certain cases; whereupon he gave direction that said articles should be detained until further orders from him, and not be allowed to be exported, because the men who claimed to own the goods were known to him, from information he had received, to be men not well disposed to the Government of the United States. Under orders which said commanding general had issued, that all friends of the Government should register, and all enemies of the Government should register themselves as such, one of the parties who shipped articles of said description on said ship enrolled himself as an enemy of the United States; and all of those parties had declined to register themselves as friends of the Government.
    ■ On the 15th of September the loading of the outward-bound cargo of said ship was completed, when the master thereof applied to the collector of the port for clearance, which, in consequence of the orders of the commanding general, ,was refused, without any reasons for the refusal being then assigned by the collector.
    The next day the said master represented said refusal to the acting Prussian consul at New Orleans, who on that day addressed a written communication to the said collector, requesting him to state what the difficulty was, so that he might take some steps to remove it. This communication was, on the same day, taken by the master to the collector, when the collector answered verbally that the ship would not be cleared unless certain freight which she had on board were taken out of her; which freight the said master, in a protest made by him and the supercargo of the ship on the 22d of said September, in enumerating the outward-bound cargo of the ship, designated as Nos. 10,11,12, 13, and 14, and which were set forth in said protest in full, as follows:
    “10. Shipped by Robert Clark, silver-ware, one package, valued at $3,000, and one valued at $500, consigned to Geo. Green & Sons, Liverpool.
    “ 11. Shipped by Hoghton, Rankin & Co., three eases containing family plated" ware and silver-plate in use, valued at $8,000, consigned to Rankin, Gilmour & Co., Liverpool.
    “ 12. Shipped by T. B. Bhlers, two boxes old silver-ware, valued at $6,000, sealed, and consigned to Messrs. A. Buranty & Co., Liverpool, as British property.
    “ 13. Shipped by Francis Olroyd, two boxes containing bullion, valued at $4,305, consigned to James Harris, Sun Life-Insurance Office, London, care Bahr, Behrend & Co., Liverpool.
    “ 14. Shipped by Cramer & Co., as Hamburg property, one box, said to contain, in gold, $4,745.50 ; in silver, $520, consigned to order.”
    On the 19th of said September General Butler informed the acting Prussian consul, by letter, that the ship would be dispatched as soon as she landed certain parts of her freight, of which a list would be furnished in the course of the day.
    On the 20th of said September the collector of customs informed said consul that the commanding general would not permit the ship to leave port with certain cases on board, designated in his order, and that consequently the collector was compelled to refuse a clearance.
    At the time the said answer was given by the collector to the master of said ship, that is, on the 16th of September, the collector referred the master for further explanations to Major-General Butler, commanding.
    On the 17th and 18th of September the said master again applied to the collector for a clearance, but did not obtain it, and also made several attempts to see Major-General Butler, but did not get any audience or reply, except being informed by one of General Butler’s aids that unless the said goods, which the aid said were contraband of war, were removed out of said ship, clearance would not be given her.
    On the 19th of September the acting Prussian consul at New Orleans, at the request of said master, addressed a letter to General Butler, referring to the situation of affairs in regard to the ship, and requesting that the ship should be allowed to obtain her clearance without further delay, or that he, the consul, should be informed of the cause of the difficulty, so that he might take steps to aid in removing it if possible.
    On the 20th of September the answer of General Butler to said consul’s letter was delivered to the consul, in the terms following:
    “Headquarters Department oe the Gulf,
    
      New Orleans, September 19, 1802.
    “ Sir : Tour note in relation to the ship Essex was received by me this evening. I regret that the necessary press of pre-engaged business, a part of which was an endeavor to speed the Essex, prevented my seeing you.
    “It is perhaps not the fault but the misfortune of the Essex that contraband articles have found their way on board her. She has been necessarily detained while these are sifted out.
    “ I shall be able to dispatch her soon, as she has landed certain parts of her freight which I will designate.
    “ I do not think that the master of the ship has intended any wrong.
    “ He will get the list of goods to be landed in the course of the day.
    “ Respectfully, your obedient servant,
    “BENJ. F. BUTLER,
    
      uMajor-General Commanding.
    
    “ The Prussian Consul.”
    On the same day an officer from the custom-house went on board the ship with an order, signed by the deputy collector of customs of the port, requiring the captain of the ship to deliver to a United States inspector, therein named, the above-described packages; whereupon the said captain refused to deliver up the same unless the bills of lading which he had given for the same were simultaneously given up to him by the parties who had shipped the packages.
    After making the aforesaid protest, either the captain or the supercargo of the ship went, on the 22d, 23d, 24th, 25th, 26th, and 27th days of September, to the collector of customs, and requested a clearance for the ship, which was, at each of said times, refused, unless the above-described shipments were first taken out of the ship 5 which the captain and supercargo refused to do unless the bills of lading which had been signed therefor were at the same time returned to them.
    On the 23d of September the Prussian consul addressed to Major-General Butler the following letter:
    “Consulate oe Prussia,
    “ New Orleans, September 23, 1862.
    “General: Captain Klatt, of the Prussian ship Essex, handed to me yesterday the order issued under your authority by the collector of this port, asking for the delivery of certain specified packages laden on board of his vessel, and informed me at the same time he refused compliance.
    “You are no doubt aware that the bills of lading for the packages in question, signed respectively on the 9th and 15th instant, are in possession of the shippers, and in order to hold the vessel harmless and to avoid complication in Liverpool, her port of destination, it will be necessary that the bills of lading be returned to the captain on delivery here of the packages, or that the same be taken from his vessel by force.
    “ In your note addressed to me on the 19th instant, receipt of which I have the honor to acknowledge herewith, the said packages are declared to be contraband; and in this connection I would beg leave to observe that by the sixth section of the confiscation act they would only become such after the 23d, or perhaps have become such after the 18th, by the operation of your General Order Uo. 73; there existed, therefore, on the 15th, no cause for the detention of the Essex.
    “I have now herewith the honor to hand you .the protest entered by Captain Klatt against the detention of his vessel, and of which I shall also forward a copy to the Prussian minister, Washington.
    “The Essex is at a great daily expense; she claims damages to the extent of $500 in gold per diem, and it is therefore of importance to bring this question to an issue either in one way or another; and begging that you will give it your early consideration,
    “I remain, general, very respectfully, your obedient servant,
    “J. KBUTTSOBNITT,
    
      “Acting Consul for Prussia.
    
    “Major-General B. F. Butler,
    “ Commanding Department of the Gulf Mew Orleans.
    
    “P. S_Captain Klatt requests me to state that he wishes it to be distinctly understood that the non-compliance on his part with your order should only be attributed to his desire to guard himself against difficulties in Liverpool, and to no other motive.
    “J. KRUTTSOHNITT,
    
      “Acting Consul.”
    To which letter General Butler sent the following answer:
    “ Headquarters Department op the Gulp,
    
      “New Orleans, September 23,1862.
    “ Sir : I have received yours of the 23d, containing protest.
    “The ship Essex has been at liberty to depart since the date of the collector’s letter to you. If the captain choose to lie here any longer, he does it at his own risk and expense.
    “I suppose it is within the province of a military commander to determine for himself, and upon his own responsibility, what he may judge the necessity of his position will allow to be shipped from the post under his command. I have exercised that discretion, and I do not require any interpretation of my orders from the acting Prussian consul to govern my action.
    “I take leave to call your attention that the only Prussian consul accredited here is in command of rebel forces in the field, while his wife remains in this jurisdiction.
    “ While I have endeavored, and shall still endeavor, to interfere as little as possible with any acts either of commerce of your countrymen or official acts of yourself, as I have endeavored to extend to you every courtesy, I am not a little surprised at your action in regard to ship Essex. I shall not use force to take the obnoxious packages out of the Essex, because I believe that very force would be made a subject of complaint; but I repeat what I have already said, until the master of the Essex deliver those packages to the custom-house officer the ship cannot sail, and if he remains, as he is now doing, it must be at his own risk and peril.
    “ I have the honor to be, your obedient servant,
    “BENJ. F. BUTLEB,
    
      uMajor-General Commanding.
    
    “The Acting Prussian Consul,-New Orleans.”
    
    Previously the acting Prussian consul had addressed to General Butler the following letter:
    “Prussian Consulate,
    “New Orleans, June 19,1862.
    “ General : Some remarks contained in certain official documents published in last evening’s Delta induce me to take the liberty to inform you that the Prussian consul to whom you allude has handed in his resignation about a year ago, viz, on the 27th May, 1861. Since then I am acting as consul under the sanction of the Prussian minister at Washington, and another appointment will probably soon be made under royal exequatur.
    I remain, general, very respectfully, your obedient servant,
    “J. KBUTTSOHNITT,
    “ Acting Prussian Consul.
    
    “Major-General B. F. Butler,
    “ Commanding Department of the Gulf New Orleans.”
    On the 29th of said September a custom-house officer presented on board the ship all the bills of lading which had been signed and given to T. B. Ehlers for his shipment as described above as No. 12, and demanded that the two cases constituting that shipment should be given up to him, which was done; the captain reserving under protest the ship’s rights relative thereto.
    The next day the collector was again applied to for a clearance, which he again refused, unless the other shipments, described above as Nos. 10,11,13, and 14, were taken out of the skip; which the captain refused to do unless the bills of lading signed for the same were at the same time returned. Similar demand was made for clearance, with the same result, on the 1st, 2d, 3d, and 4th days of the ensuing October.
    On the said 4th of October a custom-house officer, accompanied by a sergeant and two soldiers of the United States Army, went on board the ship and presented a letter from Eobert Clark, the shipper of the lot above described as No. 10, asking the captain to deliver the two cases constituting said shipment to said custom-house officer; but the bills of lading which had been given for said cases were not produced, and thereupon the captain refused to give up said cases unless the said bills of lading were at the same time given to him. Whereupon the said custom-house officer, sergeant, and soldiers demanded the keys of the hatches of the ship from the custom-house officer who was on board and in charge of the ship, and, having obtained them, opened the hatches, and the sergeant and soldiers by force took the cases constituting shipment No. 10 out of the ship against the remonstrance and protest of the captain and supercargo.
    At half past 9 o’clock a. m. on the 6th of October demand was again made on the collector for a clearance for the ship, which was refused unless packages No. 11, 13, and 14 were first taken out; which the master again refused unless the bills of lading therefor were given up.
    At 11 o’clock a. m. of that day a custom-house officer went to the ship and informed the captain that the ship would be cleared as soon as he would present himself at the custom-house, as the military authorities allowed him to clear the ship with the remaining portion of the freight on board, and the ship was cleared on that day.
    The aforesaid freight was taken on board said ship under a general permit from the custom-house to take an outward-bound cargo, and with the knowledge of the custom-house officer present on board, and no concealment in regard thereto was attempted by the officers of the ship.
    All the refusals by the collector of customs to grant a clearance of said ship were made in obedience to the orders of the said commanding general.
    The captain of the ship based his refusal to deliver up the shipments aforesaid upon the ground that he would by the delivey, without the exhibition of force, be liable to the shippers upon the bills of lading he had given for the goods.
    The said captain asked some of said shippers of said freight to give back to them the bills of lading he had signed therefor; but they said they had sent them on to Liverpool.
    The said ship, on the 16th of said September, was ready to proceed to sea if a clearance had been granted her$ and on that day she had on board sixteen passengers. When she sailed from New Orleans in October she had on board thirty-one cabin and four steerage-passengers.
    Before the passage of the joint resolution under which this suit was brought, the matter of this claim was the subject of diplomatic correspondence between the governments of the United States and Prussia.
    
      Mr. Assistant Attorney- General Smith for the appellants :
    It appears that, although the petition sounds in tort, the claim was presented and allowed as arising ex contractu.
    The Government denies the existence of any claim, in tort or contract. What was actually done was to withhold and refuse a clearance for twenty days, from September 15 to October 6, 1862.
    The supposed contract is based upon the terms of the then-existing treaty between Prussia and this country and of the President’s proclamation of May 12,1862, opening New Orleans and other ports to trade, under the limitations therein expressed, and implied from existing circumstances.
    “A treaty is a compact,” not a contract; i. e., it cannot be enforced in invito “ between independent nations.” (2 Bouvier’s Law Diet., 599; 2 Burrill’s Law Diet., 996.)
    It is an act of sovereignty, not a mere agreement. Though entered into by the sovereign as such, for the benefit of the whole nation, as an entirety, individuals may have to suffer by it. (The Peggy, 1 Oranch, 103; Ware v. Hylton, 3 Dallas, 236, 245.) Consequently the principle that where A makes a promise to B for the benefit of 0, the latter may sue, has no application to treaty stipulations. Treaties are sui generis. Claims arising under them are, so far as the respective nationalities are concerned, diplomatic claims. Even though the owner of the Essex might have maintained a common-law action against the collector of New Orleans if the vessel was wrongly detained, (Bas v. Steele, 3 Wash. O. C., 395,) yet as to the United States it was a diplomatic claim, to be adjusted only by the intervention of the Prussian government. In no sense is an individual citizen party to a treaty any more than to a statute, though restrained in his actions and rights by the provisions of both. Courtesy toward the.opinion of the Court of Claims to the contrary required that this much should be said; hut more upon this point seems unnecessary, except to add that though treaties may affect litigants, they, are not to he considered as giving the right to litigate.
    Even if a treaty were a contract under which a right of litigation against one of the contracting nations in behalf of a citizen of the other might arise, the article of this treaty which is before quoted is not fairly susceptible of the construction put upon it. Treating it as a contract, it is governed by the ordinary principles of interpretation applicable to them, [Smooths Case, 15 Wall., 36;) the first and chiefest of which is to ascertain the intention of the parties in using the language employed. (Gardner’s Inst., 569; Lawrence v. Allen, 7 How., 793; United States v. Sodsdon, 10 Wall., 395; Oatlin v. Sail, 21 Yt., 157.) This is to be learned most satisfactorily by examining surrounding and attendant circumstances to determine definitely the subject-matter to which it relates, and the topic which must have attracted the especial attention of the contracting parties. (United States v. Percheman, 7 Pet., 86-88; Lattimer v. Poteet, 14 Pet., 4, 11; Society v. New Saven, 8 Wheat., 490.)
    It is a memorable part of the world’s history that when the United States first assumed position as a nation, and for a generation and more thereafter, the question which agitated every maritime community was the right of free navigation of the seas, and especially the assertion of and resistance to Great Britain’s claim of right to visit and search neutral vessels upon the high seas and in the prosecution of a voyage, as well in peace as in war. To England’s claim almost every European nation, as well as the United States, offered remonstrance or resistance. (Lawrence on Visitation and Search, 1, 2, et seq.) This country adhered to and promulgated the doctrine that “free ships make free goods,” incorporating it into treaties when able to do so, as in the case of the treaty of 1785 with Prussia. (Wheaton’s Elements of International Law, sixth edition by Lawrence, 517-530.) This article was not retained in the treaty of 1799 nor of 1828, (8 Stat. L., 168,) but was modified as there appears.
    A perusal of this article, even taken by itself, and disregarding all history of the conflicts and discussions during which it was adopted, shows that it was only intended to apply to the case of war between either of the contracting nations and some foreign power; and then only to vessels in the actual navigation of the high seas beyond the municipal jurisdiction of either sovereignty. It was to avoid “all the difficulties that usually arise respecting merchandise of contraband” that this article was inserted. What were those difficulties ? Why, that neutral ships were taken as prize upon the high seas and sent in for adjudication. This article says the carriage of such goods shall not “induce confiscation or condemnation.” But it says “the captors” may detain, take, and use the goods upon payment therefor. This language is employed of vessels and cargoes in transitu; therefore the word “captors” must be given its technical meaning — those who make prize of a vessel at sea. But for the treaty, a vessel found at sea with contraband goods on board could have been sent in for libel and condemnation as prize of war; this article limited the right, but still treats the seizing party as captors; and it concludes that, if the master will deliver out the contraband goods, the vessel “shall not be carried into any port,” “but shall be allowed to proceed on her voyage;” in the clearest terms evidencing that it was the case only of vessels stopped and searched upon the high seas that was intended’ to be included within this article of the treaty. (Wheaton’s Right of Search, 134, 135; De Burgh’s Mar. Int. Law, 7, § 5.)
    What bearing has the President’s proclamation of May 12, 1862, upon this case ? The circumstances attending its issue, as well as its words, must be considered. New Orleans was declared under blockade April 19,1861. The proclamation of May 12, 1862, declared a determination of the blockade except as to certain articles and information, and that trade was to be carried on under certain limitations and regulations. It was prescribed that each vessel should, before departing from the port, “ have a clearance from the collector of customs according to law, showing no violations of the conditions of her license,” under the penalty of forfeiture and condemnation. It was then well known, and is found as a fact in the case, that the city of New Orleans was “ in a state of siege by land,” and that it was held by the military forces “ under martial law.” It was to such a port, so situated, where such law necessarily dominated, that the claimant was invited, if invitation it can be called. It is more correct to say that he was permitted to come and trade there, provided he desired to do so under the circumstances indicated, and accepting the dangers and responsibilities necessarily involved in the enterprise.
    Whenever a vessel comes intoan American port she subjects herself and her crew temporarily to the regulations of the municipal law there in force.
    If during war she enters a besieged place where the law prevailing is martial' law, by parity of reasoning she subjects herself pro hac vice to that law, which is for the time being the law of the land there. The necessities of martial law are such that this cannot be otherwise. (Halleck’s Int. Law, 372; Clode’s Mil. and Mart. Law, 162, et seq.)
    
    “ The basis of martial law is danger.” (Finlason’s Martial Law, 64.) And the measures it requires and justifies are to avert danger, rather than to detect offenses or punish guilt. It makes the safety of the people not only the supreme but the sole law of the time and place where it exists; and what that safety requires is for the military commander to determine.
    If the attempt to sustain this claim ex contráctil, fails, as we think it certainly does, there is no basis for it as a tort. A false and illegal detention of the ship, cargo, crew, and passengers would be a tort; but if they were detained legally, however injurious to their interests, it is dam/num absque injuria. The x)etitioner deemed the detention tortious; but all the members of the Court of Claims agree in this, that no “ wrong was done either by General Butler or the United States.”
    The “alleged detention” was not “by the military authorities.” True, the collector refused a clearance at General Butler’s direction, but no military force was used, and the purpose to use it was disavowed. In the language of Washington, J., “ The collector had two conflicting duties imposed upon him ; one to the individual who asked a clearance; the other to his country. If the destination [or lading] of the vessel was the enemy, he had a right to refuse a clearance; if not, and there were not circumstances to warrant his suspicions, he had no such right. He was to judge upon circumstances,” &c. (Bas v. Steele, 3 Wash. O. 0., 395.)
    The Act May 20,1862, ch. 81, (12 Stat. L., 404-405,) requires the collector to take security that no goods laden on board any vessel shall be used to give aid to the insurgents; and its whole provisions indicate that it was not unrestricted trade to which these ports were opened, but only such as our situation would admit of being carried on.
    The captain was responsible for the detention ; as General Butler informed the Prussian consul, Captain Klatt should have given up the bullion and plate, and would not have incurred any liability to the shippers. (Bliven v. Hudson River jR. R. Go., 35 Barb., 191.) Only the shippers could sue upon the bills of lading, and there would have been a complete defense as to them. (Thompson v. Dominy, 14 M. & W., 407; Rows v. Gobi), 12 Barb., 316.)
    The private resolution under which this suit was brought did not .undertake to give anything to Mr. Diekelman — to create any claim. It only authorized the Court of Claims to hear him, notwithstanding he was an alien, and to decree according to existing law; according to the law affecting its general jurisdiction as well as according to the general principles of law. If found to have a claim arising under a treaty, and none other, the cause should have been dismissed for want of jurisdiction. (Act of March 3,1863, ch. 92, § 9,12 Stat. L., 765.) That public act cannot be considered as repealed, even pro hae vice, by this private resolution; but the claim is submitted in subordination to this general law. But if it could be held that the private resolution did, as to this case, repeal the statute of 1863, or suspend its operation, though not mentioned in it, then, by parity of reasoning, the re-enactment of this statute in the revision would take away the jurisdiction astoatreaty-claim. (Rev. Stat., § 1066.) Inasmuch as this section is simply to limit the power of an inferior statute court, it is of no consequence that its effect is to operate as a discontinuance of a pending case. Such statutes, having this effect, are frequently passed. (Ron parte MoGardle, 7 Wall., 506; Ins. Go. v. Ritchie, 5 Wall., 544; Harris v. Oroclcer, 13 How., 429; Webster v. Go. Gommrs., 63 Maine, 27; Washburn v. FranMin, 35 Barb., 599; Bailey v. Mason, 4 Minn., 546; Runwell v. Bidwell, 8 Minn., 34; State v. Raley, 29 Conn., 272; Genhinger v. State, 32 Penn. St., 99.)
    Messrs. Carlisle and McPherson for the appellee:
    The detention was the means adopted by the commanding general to compel, without any exhibition of force, the master to deliver up the packages of bullion and plate which had been shipped and for which the master had signed bills of lading.
    Had the master delivered them up without the return of the bills of lading or order of the shipper, he would have rendered the vessel and the owners liable for their value. Nothing excuses the failure of the ship to deliver the goods shipped except the act of God or of the public enemy. It is said that “ only the shippers could sue on the bills of lading, and there would have been a complete defense as to themciting Thompson v. Dominy and Dows v. Gobi). These cases hold only that the shipper only can enforce the contract to transport. The consignees or endorsees of the bill of lading, if the property had passed to them, may maintain an action for the detention or conversion of the goods, and the bill of lading is conclusive evidence that the master had the goods. (Tindall v. Taylor, 4 B. & B., 219; cited in Parsons on Ship, and Adm.)
    In Abbott on Shipping it is intimated that consignees may, in some cases, maintain an action upon the contract for transportation : “ There is often some difficulty in deciding to whom the master and owner are responsible on their contract, evidenced by their bill of lading, and whether action for loss or injury occasioned by their negligence or misconduct should be brought by the consignor or consignee. No rule of general application can be laid down for the solution of this difficulty,” &e. (P. 326.)
    But if liable to the shippers only, we do not see what defense the master could have even as to them had they sued in Liverpool, as they would have done.
    Being notified that the goods would not be taken from the ship, the question presented to the master was simply whether he would give up the goods to purchase a clearance. We submit that had he delivered the goods for that purpose, having the option to do otherwise, the master would have been liable for their value. That his voluntary delivery of the goods would have been inexcusable is shown by the fact that no goods were taken, except one package, for which the bills of lading .were surrendered, and one for which the order of the -shipper was obtained. The others were not taken, and were thus saved to the owners. On the 6th of October clearance was refused, unless packages 11, 13, and 14 were taken out, which the master refused to do, but next day he was informed that he could clear, “ as the military authorities allowed him to clear the ship with the remaining portion of the,freight on board, and the ship was cleared on that day.”
    If the authorities of the United States had the right to detain the ship in order to prevent the suspected articles from going forward, then the case falls under the thirteenth article of the treaty of 1828 with Prussia, which provides that “ it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from this proceeding, paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors.”
    If the right to compensation is given by the treaty, this claimant may recover in this suit. His claim is referred to the court by Congress with power to award damages. The award, if made at all, must, under this act; be to him, for his is the only claim before the court that could be brought under the act. No award can be made to any other person. Eights, secured by treaty to individuals, can be asserted by them directly, without the intervention of the foreign government with which the treaty was made. The act of March 3, 1863, withdrawing from the jurisdiction of the Court of Claims claims “ growing out of or dependent on any treaty stipulation,” except claims pending in that court on the 1st of December, 1862, is a legislative recognition of the right of private persons to enforce in that court demands growing out of treaty stipulations. The books are full of cases arising under the treaties with Great Britain, with Spain, and with France, in which rights secured by treaty to individuals have been protected by the courts. In Foster and Flam v. Weilson, this court said:
    “ A treaty is, in its nature, a contract between two nations, not a legislative act. It does not generally effect of itself the object to be accomplished, especially so far as its operation is infraterritorial, but it is carried into execution by the sovereign power of the respective parties to the instrument. In the United States a different principle is established. Our Constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a particular act, the treaty addresses itself to tbe political, not the judicial, department, and the legislature must execute the contract before it can become a rule for the court.” (2 Pet,, 313,314.)
    But, independent of the treaty of 1828, the necessity of the detention, if it was necessary, justified the military commander, but did not, therefore, relieve the United States from liability. On the contrary, it fixed the liability of the United States. “There are undoubtedly occasions in which private property may be lawfully taken or destroyed to prevent it from falling into the hands of the public enemy, and also where a military officer, charged with a particular duty, may impress private property into the public service or take it for public use. Unquestionably, in such cases, the Government is bound to make full compensation to the owner, but the officer is not responsible.” (Mitchell v. Harmony, 13 How., 115,134.)
    But, if not originally liable by reason of the justifiable detention of the vessel, still by the act of July 27, 1868, Congress relieved the commanding general of all liability, and thereby took the liability upon the Government.
    It may reasonably be considered that the act in this case is intended to assume the payment of damages if the claimant be entitled as against any person. This claim was the subject of diplomatic correspondence between the Governments of the United States and Prussia before the joint resolution was passed. It is not unreasonable to take the very words of the joint resolution, as expressing its intent, viz, that if the claimant’s vessel was, as alleged, detained by the military authority at New Orleans, and if he has been damaged by such detention — which damage is to be damage in a legal sense — then the court is to award him damages against the United States.
    The question whether the suit is for tort or breach of contract seems to us irrelevant. Nothing is said of tort or contract either in the act of Congress or in the petition. The act authorizes the court to award damages, and damages are recoverable alike for the commission of a tort or the breach of a contract, and both of these are wrongs.
    There is nothing in the condition of affairs at New Orleans to subject this claimant to any exceptional liability. It is true that New Orleans was, in some sense, a conquered territory, but so it was when the general, Butler, proclaimed as the law of the place “that all rights of property of whatever kind will be held inviolate, subject only to the laws of the United States.” And, again, “all foreigners, not naturalized, claiming allegiance to their respective governments, and not having made oath of allegiance to the Confederate States, will be protected in person and property, as heretofore, under the laws of the United States,” and, said the court, “these clauses only reiterate the rules established by the legislative and executive action of the National Government in respect to the portions of the States in insurrection occupied and controlled by the troops of the Union. * * * It was the re-establishment of the national authority.” (The Venice, 2 Wall., 276-277.)
    And in that condition of things the President issued his proclamation opening the port to foreign trade, and prescribing the conditions under which such trade could be carried on. It has never been suggested that the claimant violated those conditions. Of course all private rights were held in subjection to the military government, but rights of property were not annihilated; they existed, and when the property was taken or detained, a right of compensation accrued.
   Mr. Chief-Justice Waite

delivered the opinion of the court:

This suit was brought in the Court of Claims under the authority of a joint resolution of both houses of Congress, passed May 4, 1870, as follows:

“That the claim of E. Diekelman, a subject of the King of Prussia, for damages for an alleged detention of the ship Essex by the military authorities of the United States at New Orleans, in the month of September, 1862, be, and is hereby, referred to the Court of Claims for its decision in accordance with law, and to award such damages as may be just in the premises, if he may be found to be entitled to any damages.”

Before this resolution was passed the matter of the claim had been the subject of diplomatic correspondence between the governments of the United States and Prussia.

The following article, originally adopted in the treaty of peace between the United States and Prussia concluded July 11, 1799, (8 Stat. L., 168,) and revived by the treaty concluded May 1, 1828, (8 Stat. L,, 384,) was in force when the acts complained of occurred, to wit:

“ Art. NIII. Aud in the same case, if one of the contracting parties being engaged in war with any other power, to prevent all the difficulties and misunderstandings that usually arise respecting merchandise of contraband, such as arms, ammunition, and military stores of every kind, no such articles carried in the vessels, or by the subjects or citizens of either party, to the enemies of the other, shall be deemed contraband, so as to induce confiscation or condemnation, and a loss of property to individuals. Nevertheless, it shall be lawful to stop such vessels and articles, and to detain them for such length of time as the captors may think necessary to prevent the inconvenience or damage that might ensue from their proceeding; paying, however, a reasonable compensation for the loss such arrest shall occasion to the proprietors; and it shall further be allowed to use in the service of the captors the whole or any part of the military stores so detained, paying the owners the full value of the same, to be ascertained by the current price at the place of its destination. But in the case supposed, of a vessel stopped for articles of contraband, if the master of the vessel stopped will deliver out the goods supposed tó be of contraband nature, he shall be admitted to do it, and the vessel shall not, in that case, be carried into any port nor further detained, but shall be allowed to proceed on her voyage.”

When the Essex visited New Orleans the United States were engaged in the war of the rebellion. The port of that city was at the very commencement of the war placed under blockade and closed against trade and commercial intercourse, but on the 12th May, 1862, the President, having become satisfied that the blockade might “ be safely relaxed with advantage to the interests of commerce,” issued his proclamation to the effect that, from and after June 1, “commercial intercourse, * * * except as to persons, things, and information contraband of war,” might “be carried on, subject «to the laws of the United States and to the limitations and in pursuance of the regulations * * * prescribed by the Secretary of the Treasury,” and appended to the proclamation. These regulations, so far as they are applicable to the present case, are as follows:

“1. To vessels clearing from foreign ports and destined to * * * New Orleans, * # * licenses will be granted by consuls of the United States upon satisfactory evidence that the vessels so licensed will convey no persons, property, or information eon-traband of war either to or from the said ports, which licenses shall be exhibited to the collector of the port to which said vessels maybe respectively bound immediately on arrival, and, if required, to any officer in charge of the blockade; and, on leaving either of said ports, every vessel will be required to have a clearance from the collector of the customs according to law, showing no violation of the conditions of the license.” (12 Stat. L.,1264.)

The Essex sailed from Liverpool for New Orleans June 19, 1862, and arrived August 24. New Orleans was then in possession of the military forces of the United States, with General Butler in command. The city was practically in a state of siege by land, but open by sea, and was under martial law.

The commanding general was expressly enjoined by the Government of the United States to take measures that no supplies went out of the port which could afford ai.d to the rebellion ; and pursuant to this injunction he issued orders in respect to the exportation of money, goods, or property on account of any person known to be friendly to the confederacy, and directed the custom-house officers to inform him whenever an attempt was made to send anything out which might be the subject of investigation in that behalf.

In the early part of September, 1862, General Butler, being still in command, was informed that a large quantity of clothing had been bought in Belgium on account of the confederate government, and was lying at Matamoras awaiting delivery, because the government had failed to get the means they expected from New Orleans to pay for it, and that another shipment, amounting to a half million more, was delayed in Belgium from coming forward because of the non-payment of the first shipment. He was also informed that it was expected the first payment would go forward through the agency of some foreign consuls, and this information afterward proved to be correct.

He was also informed early in September by the customhouse officers that large quantities of silver-plate and bullion were being shipped on the Essex, then loading for a foreign port, by persons one of whom had declared himself an enemy of the United States, and none of whom would enroll themselves as friends, and he thereupon gave directions that the specified articles should be detained and their exportation not allowed until further orders.

On the 15th September, the loading of the vessel having been completed, the master applied to the collector of the port for his clearance, which was refused in consequence of the orders of General Butler, but without any reasons being assigned by the collector. The next day he was informed, however, that his ship would not be cleared unless certain specified articles which she had on board were taken out and landed. Much correspondence ensued between General Butler and the Prussian consul at New Orleans in reference to the clearance, in which it was distinctly stated by General Butler that the clearance would not be granted until the specified goods were landed, and that it would be granted as soon as this should be done. Almost daily interviews took place between the master of the vessel and the collector, in which the same statements were made by the collector. The master refused to land the cargo except upon the return of his bills of lading. Some of these bills were returned and the property surrendered to the shipper. In another case the shipper gave an order upon the master for his goods, and they were taken away by force. At a very early stage in the proceeding the master and the Prussian consul were informed that the objection to the shipment of the articles complained of was that they were contraband.

A part only of the goods having been taken out of the vessel, a clearance was granted her on the 6th of October, and she was permitted to leave the port and commence her voyage.

TJpon this state of facts the Court of Claims gave judgment for Diekelman, from which the United took an appeal.

One nation treats with the citizens of another only through their government. A sovereign cannot be sued in his own courts without his consent. His own dignity, as well as the dignity of the nation he represents, prevents his appearance to answer a suit against him in the courts of another sovereignty, except in performance of his obligations by treaty or otherwise, voluntarily assumed. Hence a citizen of one nation, wronged by the conduct of another nation, must seek redress through his own government. His sovereign must assume the responsibility of presenting his claim or it need not be considered. If this responsibility is assumed, the claim may be prosecuted as one nation proceeds against another, not by suit in the courts, as of right, but by diplomacy, or, if need be, by war. It rests with the sovereign against whom the demand is made to determine for himself what he will do in respect to it. He may pay or reject it; he may submit to arbitration, open his own courts to suit, or consent to be tried in the courts of another nation. All depends upon himself.

In this case, Diekelman, claiming to have been injured by the alleged wrongful conduct of the military forces of the United States, made his claim known to his government. It was taken into consideration and became the subject of diplomatic correspondence between the two nations. Subsequently Congress, by joint resolution, referred the matter to the Court of Claims “ for its decision according to law.’7 The courts of the United States were thus opened to Diekelman for this proceeding. In this way the United States have submitted to the Court of Claims, and through that court, upon appeal, to us, the determination of the question of their legal liability, under all the circumstances of this case, for the payment of damages to a citizen of Prussia upon a claim originally presented by his sovereign in his behalf. This requires us, as we think, to consider the rights of the claimant under the treaty between the two governments, as well as under the general law of nations. For all the purposes of its decision, the case is to be treated as one in which the government of Prussia is seeking to enforce the rights of one of its citizens against the United States in a suit at law, which the two governments have agreed might be instituted for that purpose. We shall proceed upon that hypothesis.

1. As to the general law of nations.

The merchant-vessels of one country visiting the ports of another for the purposes of trade, subject themselves to the laws which govern the port they visit, so long as they remain, and this as well in war as in peace, unless it is otherwise provided by treaty. (The Exchange v. McFadon, 7 Cranch, 316.) When the Esses sailed from Liverpool the United States were engaged in war. The proclamation under which she was permitted to visit New Orleans made it a condition of her entry that she should not take out goods contraband of war, and that she should not leave until cleared by the collector of customs according to law. Previous to June 1 she was excluded altogether from the port by the blockade. At that date the blockade was not removed, but relaxed only in the interests of commerce. The war still remained paramount, and commercial intercourse subordinate only. When the Essex availed herself of the proclamation and entered the port, she assented to the conditions imposed, and cannot complain if she was detained on account of the necessity of enforcing her obligations thus assumed.

The law by which the city and port were governed was martial law. This ought to have been expected byDiekelman when he dispatched his vessel from Liverpool. The place had been wrested from the possession of the enemy, only a few days before the issue of the proclamation, after a long and desperate struggle. It was, in fact, a garrisoned city, held as an outpost of the Union army, and closely besieged by land. So long as it remained in the possession of the insurgents it was to them an important blockade-running point, and after its capture the inhabitants were largely in sympathy with the rebellion. The situation was, therefore, one requiring the most active vigilance on the part of the general in command. He was especially required to see that the relaxation of the blockade was not taken advantage of by the hostile inhabitants to promote the interests of the enemy. All this was matter of public notoriety, and Diekel-man ought to have known, if he did not in fact know, that although the United States had to some extent opened the port in the interests of commerce, they kept it closed to the extent that was necessary for the vigorous prosecution of the war. When he entered the port, therefore, with his vessel, under the special license of the proclamation, he became entitled to all the rights and privileges that would have been accorded to a loyal citizen of the United States under the same circumstances, but no more. Such restrictions as were placed upon citizens operated equally upon him. Citizens were governed by martial law. It was his duty to submit to the same authority.

Martial law is the law of military necessity in the actual presence of war. It is administered by the General of the Army, and is in fact his will. Of necessity it is arbitrary, but it must be obeyed. New Orleans was at this time the theater of the most active and important military operations. The civil authority was overthrown. General Butler, in command, was the military ruler. His will was law, and necessarily so. His first great duty was to maintain on land the blockade which had theretofore been kept up by sea. The partial opening of the port toward the sea made it all the more important that he should bind close the military lines on the shore which he held.

To this law and this government the Essex subjected herself when she came into port. She went there for gain, and voluntarily assumed all the chances of the war into whose presence she came. By availing herself of the privileges granted by the proclamation1, she in effect covenanted not to take out of the port “persons, things, or information contraband of war.” What is contraband depends upon circumstances. Money and bullion do not necessarily partake of that character, but when destined for hostile use or to procure hostile supplies they do. Whether they are so or not, under the circumstances of a particular case, must be determined by some one when a necessity for action occurs. At blew Orleans, when this transaction took place, this duty fell upon the general in command. Military commanders must act to a great extent upon appearances. As a rule they have but little time1 to take and consider testimony before deciding. Vigilance is the law of their duty. The success of their operations depends to a great extent upon their watchfulness.

General Butler found on board this vessel articles which he had reasonable cause to believe, and did believe, were contraband, because intended for use to promote the rebellion. It was his duty, therefore, under his express instructions, to see that the vessel was not cleared with these articles on board, and he gave orders accordingly. It matters not now whether the property suspected was in fact contraband or not. It is sufficient for us that he had reason to believe, and in fact did believe, it to be contraband. No attempt has been made to show that he was not acting in good faith. On the contrary, it is apparent from the finding of the court below that the existing facts brought to his knowledge were such as to require his prompt and vigorous action in the presence of the imminent danger with which he was surrounded. Certainly enough is shown to make it necessary for this plaintiff to prove the innocent character of the property before he can call upon the United States to respond to him in damages for the conduct of their military commander, upon whose vigilance they relied for safety.

Believing, then, as General Butler did, that the property was contraband, it was his duty to order it out of the ship and to withhold her clearance until his order was complied with. He was under no obligation to return the bills of lading. The vessel was bound not to take out any contraband cargo. She took all the risks of this obligation when she assumed it, and should have protected herself in her contracts with shippers against the contingency of being required to unload after the goods were on board. If she failed in this, the consequences are upon her, and not the United States. She was operating in the face of war, the chances of which might involve her and her cargo in new complications. She voluntarily assumed the risks of her hazardous enterprise, and must sustain the losses that follow.

Neither does it affect the case adversely to the United States that the property had gone on board without objection from the custom-house officers or the military authorities. It is not shown that its character was known to General Butler or the officers of the custom-house before it was loaded. The engagement of the vessel was not to leave until she had been cleared according to law, and that her clearance might be withheld until with reasonable diligence it could be ascertained that she had no contraband property on board. This is the legitimate effect of the provisions of the Treasury regulations, entitling her to a license “ upon satisfactory evidence that she would “ convey no persons, property, or information contraband of war, either to or from ” the port, and requiring her not to leave until she had “ a clearance from the collector of customs, according to law, showing no violation of the license.” Her entry into the port was granted as a favor, not as a right, except upon the condition of assent to the terms imposed. If the collector of customs was to certify that the license she held had not been violated, it was his duty to inquire as to the facts before he made the certificate. Every opportunity for the prosecution of this inquiry must be given. Under the circumstances, the closest scrutiny was necessary. If, upon the examination preliminary to the clearance, prohibited articles were found on board, there could be no certificate such as was required until their removal. It would then be for the vessel to determine whether she would remove the goods and take the clearance, or hold the goods and wait for some relaxation of the rules which detained her in port as long as she had them on board. General Butler only insisted upon her remaining until she re* moved the property. She elected to remain. There was no time when her clearance would not have been granted if the suspected articles were unloaded.

We are clearly of the opinion that there is no liability to this plaintiff resting upon the United States under the general law of nations.

2. As to the treaty.

The vessel was in port when the detention occurred. She had not broken ground and had not commenced her voyage. She came into the waters of the United States while an impending war was flagrant, under an agreement not to depart with contraband goods on board. The question is not whether she could have been stopped and detained after her voyage had been actually commenced, without compensation for the loss, but whether she could be kept from entering upon the voyage and detained by the United States within their own waters, held by •force against a powerful rebellion, until she had complied with regulations adopted as a means of safety, and to the enforcement of which she had assented in order to get there. In our opinion, no provision of the treaties in force between the two governments interferes with the right of the United States 'under the general law of nations to withhold a custom-house •clearance as a means of enforcing port regulations.

Article XIII of the treaty of 1828 contemplates the establishment of blockades, and makes special provision for the government of the respectictive parties in case they exist. The vessels of one nation are bound to respect the blockades of the other. Clearly the United States had the fight to exclude Prussian vessels, in common with those of all other nations, from their ports altogether, by establishing and maintaining a blockade while subduing a domestic insurrection. The right to exclude altogether, necessarily carries with it the right of admitting, through an existing blockade, upon conditions, and of enforcing, in an appropriate manner, the performance of the conditions after admission has been. obtained. It will not be contended that a condition which prohibits the taking out of contraband goods is unreasonable, or that its performance may not be enforced by refusing a clearance until it has been complied with. Neither, in the absence of treaty stipulations to the contrary, can it be considered unreasonable to require goods to be unloaded if their contraband character is discovered after they have gone on board. In the existing treaties between tbe two governments there is no such stipulation to the contrary. In the treaty of 1799, Article VI is as follows: “That the vessels of either party, loading within the ports or jurisdiction of the other, may not be uselessly harassed or detained, it is agreed that all examinations of goods required by the laws shall be made before they are laden on board the vessel, and that there shall be no examination after.” While other articles in the treaty of 1799 were revived and kept in force by that of 1828, this was not. The conclusion is irresistible that the high contracting parties were unwilling to continue bound by such a stipulation, and therefore omitted it from' their new arrangement. It would seem to follow that under the existing treaty the power of search and detention for improper practices continued, in time of peace even, until the clearance had been actually perfected and the vessel had entered on her voyage. If this be the rule in peace, how much more important is it in war for the prevention of the use of friendly vessels to aid the enemy.

Article XIII of the treaty of 1799, revived by that of 1828, evidently has reference to captures and detentions after a voyage has commenced, and not to detentions in port to enforce port regulations. The vessel must be “stopped” in h.er voyage, not detained in port alone. There must be “captors,” and the vessel must be in a condition to be “carried into port” or detained from “proceeding” after she has been “stopped” before this article can become operative. Under its provisions the vessel “stopped” might “deliver out the goods supposed to be contraband of war,” and avoid further “ detention.” In this case there was no detention upon a voyage, but a refusal to grant a clearance from the port that the voyage might be commenced. The vessel was required to “ deliver out the goods supposed to be contraband” before she could move out of the port. Her detention was not under the authority of the treaty, but in consequence of her resistance of the orders of the properly-constituted port authorities, whom she was bound to obey. She preferred detention in port to a clearance on the conditions imposed. Clearly her case is not within the treaty. The United States, in detaining, used the right they had under the law of nations and their contract with the vessel, not one which, to use the language of the majority of the Court of Claims, they held under the treaty “by purchase” at a stipulated price.

As we view this ease, the claimant is not “entitled to any damages,” as against the United States, either under the treaty with Prussia or by the general law of nations.

The judgment of the Court of Claims is therefore reversed, and the cause remanded, with directions to dismiss the petition.  