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2. Contempt of court is a specific criminal of fense. The imposition of the fine is a judgment in

a criminal case. This court can take cognizance of a criminal case only upon a certificate of division in opinion.

3. 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, the government had the same power and rights in that territory held by conquest, as if the territory had belonged to a foreign country and had been subjugated in a foreign war.

4. In such cases the conquering power has a right to displace the pre-existing authority, and to assume the exercise, by itself, of all the powers and

functions of government.

5. The appointment, by the commanding general, of Mayor and of the Boards of Finance and of Street Landings of that City, was valid, and clothed them with the powers and duties which pertained to their respective positions.

6. They had power to contract for the use of a portion of the water front of the City for ten years, and when the military jurisdiction terminated, the lease did not fall with it.

7. An order of the commanding general issued seven months after the lease was made, after the rights of the lessees had become vested, could not affect the rights of the lessees, and was properly refused as evidence.

[No. 5.]

Argued Oct. 13, 1874. Decided Oct. 26, 1874. APPEAL from the Circuit Court of the Unit

ed States for the District of Louisiana. The case is fully stated by the court. Mr. Wheeler H. Peckham, for appellant: The lease was ultra vires, as to either the military or civil government. It was of property held by the City in trust for the publicfor public use.

No power, other than that of the State itself, could aliene the rights of the public, and transfer them to an individual or company, to the exclusion of the public.

The buildings of the Company constituted a nuisance, which the City could abate.

Mayor v. Magnon, 4 Mart. (La.) 10; Henderson v. Mayor, 3 La. 563; Municipality No. 1 v. Kirk, 5 Ann. (La.) 34; Pulley v. Municipality No. 2, 18 La. 278; Municipality No. 2 v. N. Orleans Cot. Press, 18 La. 224.

In this last case the court says, p. 227:

168; Lining v. Bentham, 2 Bay, 1; Gist v. Bowman, 2 Bay, 182; State v. Johnson, 2 Bay, 385; Cossart v. State, 14 Ark., 538; Bunch v. State, 14 Ark. 544; Lockwood v. State, 1 Ind., 161; Hunter v. State, 6 Ind., 423; Kemodle v. Kason, 25 Ind., 362; Ex parte Smith, 28 Ind., 47; State v. Towle, 42 N. H., 540; Mitchell's case, 12 Abb. Pr., 249; Kearney's case, 13 Abb. Pr., 459; People v. Fancher, 4 Supr. Ct. R. (T. & C.), 467; People v. Cassels, 5 Hill, 164; People v. Sturtevant, 9 N. Y., 263; People v. Kelly, 24 N. Y., 74; Ex parte Adams, 25 Miss., 883; Watson v. Williams, 36 Miss., 331; Shattuck v. state, 51 Miss., 50, 24 Am. Rep. 624; People v. Simonson, 9 Mich., 492; Romeyn v. Caples, 17 Mich., 449: Easton v. State, 39 Ala., 551; Ex parte Martin, 5 Yerg., 456, 26 Am. Dec., 276; State v. Galloway, 5 Cold., 326; State v. Woodfin, 5 Ired., 199, 42 Am. Dec., 161; Watson v. Thomas, 6 Litt., 248; Vilas v. Burton, 27 Vt., 56; Cooper's case, 32 Vt. 253: Floyd v. State, 7 Tex., 215; Jordan v. State, 14 Tex., 436; Crow v. State, 24 Tex., 12; State v. Thurmond, 37 Tex., 340; State v. Giles, 10 Wis., 101; Darby's case, 3 Wheel. Cr. Cas., 1; Robb v. McDonald, 29 Iowa, 330; Ex parte Perkins, 18 Cal., 60; Burnham v. Morrissey, 14 Gray, 226; Ex Parte Maulsby, 13 Md., 621; Earl of Shaftsburg's case, 2 St. Tr., 615; Reg. v. Paty, Raym., 1105; Ex parte Fernandez, 10 C. B. B. N. S., 3; S. C., 6 Hurlst. & N., 717; Rex v. Crosby, 3 Wils., 188; Ex parte Pater, 5 Best & S., 299.

The fact of contempt cannot be inquired into de novo in another court; there is no mode provided for such an inquiry. State v. Woodfin, 5 Ired. L., 199, 42 Am. Dec., 161.

"The city is not only proprietor of a locus publicus, but also administrator. It belongs as much to the citizen of Ohio as to a citizen of New Orleans. It is a plan left open for the convenience of commerce, and for the use of the whole world; a thing hors du commerce." This same doctrine is held in New York. People v. Kerr, 27 N. Y. 188.

The military Mayor and Board had no authority to lease the property of the City. terminated with the termination of hostilities, Whatever rights or powers tney possessed, and they could no more create an interest to last beyond that time, than could a tenant for years create one to last beyond his term.

Halleck, Int. L., 446-448, ch. 19, secs. 2-5; 777, sec. 4, 781; Twiss, Law Nat., ch. 4, sec. ch. 35, secs. 8, 9: ch. 32, secs. 1, 2, 776; 66, p. 126; 3 Phillim., 498, secs. 583, 584; Digest, title Rights, Private Rights, Restitution Rights of Captors; I Kent, Com., 92; Wheat. Int. L., 8th ed., secs. 346, 347, n. 169; tit. Belligerent Occupation, sub. 4, Immovable Prop erty and sub. 9, Postliminium, Vattel, Phila. Lib. ed., 505, 731; Heffter, Droit Int., Paris ed. of 1870, p. 395; 3 Phillim, Int. L., Law ed., 1866; secs. 133, 138; 2 Marten, Droit Des

Gens, sec. 283, Paris ed., 1874; Calvo, Droit Int., p. 766, 2d ed., Paris, 1872.

The judgment goes beyond the rights given by the lease. The injunction is absolute for the ten years.

The lease gives certain rights of re-entry in case of non-payment of rent, etc. At least the judgment should be modified so as to conform to the lease.

The appellee claims that the doctrine of postliminium does not apply.

But he must and does submit that the government established by the United States was a military government.

This court has so regarded it.

The Venice, 2 Wall., 276, 17 L. ed. 867. The cases in 16 and 20 How., cited by counsel, have no application.

In those cases the conquered territory was

Where the conduct charged as constituting the contempt, does pot amount to that offense, the judgment will be reversed. People v. Hackley, 24 N. Y., 74.

In Tennessee the Supreme Court decides that it has jurisdiction to revise action of a chancery court in cases of contempt for violation of orders and process of the latter tribunal. Hundhausen v. Ins. Co., 5 Heisk., 702.

An appeal does not lie, even when a jury trial is given. Casey v. State, 25 Tex., 38

Although an adjudication of contempt under the common law practice is not reviewable by a court of error, yet where the moving party tenders an issue of law upon which the question of contempt is tried, a writ of error will lie upon the adjudication thereon. Tyler v. Hammersley, 44 Conn., 393, 26 Am. Rep., 471.

An attorney disbarred for contempt has a right to appeal. It is not a mere judgment of contempt, but a removal from office. Ex parte Smith, 28 Ind., Turner, 1 Cal., 143; Dillon v. State, 6 Tex., 55; 47; Turner v. Com., 2 Met. (Ky.), 619; People v. Jackson v. State, 21 Tex., 668; State v. Start, 7 Iowa, 499; Rice v. Com., 18 B. Mon. 472.

Appeals have been allowed in some instances. Stuart v. People, 3 Scam., 395; Shannon v. State, 18 Wis., 604; McCredie v. Senior, 4 Paige, 378; Buel v. Street, 9 Johns., 441; Ex parte Thatcher, 2 Gilm., 170; Stoke's case, 5 So. Car., 71.

Certiorari lies in Iowa and North Carolina. Dunham v. State, 6 Iowa, 245; Bigg's case, 64 N. C.. 202.

ceded to and remained with the conqueror after | the rebellious authorities existing before the peace.

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The note, too, was for rent past due, and was owing, even if the structure was to be immediately abated as a nuisance, for the consideration had been enjoyed.

Mr. James Emott, for appellee: These officers in the City of New Orleans preserved at least all the powers appertaining to the offices they were appointed to fill. There were no loyal men to elect, so as to fill these offices. As a matter of necessity and duty to the people who had been subjugated, some gov ernment must be given them. As a grace and favor to them, that government was not martial law, but an administration of their own municipal institutions by the only men competent to administer them.

See, The Venice, 2 Wall., 258, 17 L. ed. 866; Act to provide for the more efficient government of the rebel States, passed March 2, 1867; Act supplementary to same, passed July 12, 1867; Leitensdorfer v. Webb, 20 How. 176, 15 L. ed. 891.

That the government of the United States had a right to fill these offices, and thus organize a government, results from public law and the law of war. The principles on which such action proceeded have been recognized by this court.

Leitensdorfer v. Webb, supra; Cross v. Har rison, 16 How.. 164.

There is nothing like postliminium here, In fact or fiction or by analogy.

If this had been the case of a conquered country, held under our sway four or five years and then restored to its original government and people, the alienation of its public domain to citizens of the conquering country, made while it was under our dominion, could not be rightfully annulled or recalled by the restored government.

1 Phillim. Int. L., 288; Wheat. Int. L., sec. 347, p. 438, Mr. Dana's note.

But there has been no recapture or relinquishment by the United States. In allowing the people of the State, who have purged them selves of complicity in the rebellion, to resume the government of the State, the United States simply permits them to succeed to the administration of the government as it has been restored and established by military power, and with the sanction of Congress, and not to super sede that government by a new or a restored government of their own.

The municipal governments, now existing and exercising authority in Louisiana and New Orleans, are a succession and continuation of the governments established by the United States through its military power, and not of

conquest.

The period of military sovereignty is not to be regarded as an interregnum, but as a beginning of a restoration.

The City of New Orleans and its present authorities are barred and estopped from denying the validity of the lease, and from any defense to this action.

They made no offer to return the rent notes until long after they invaded our possession, and after this suit was commenced.

They have never offered to return money paid to take up our first eight notes, nor the money expended by us on the premises. without notice, attacked and destroyed our The very same functionaries, violently and property on this wharf, having only a few days before received from us rent under the lease by which we held it, given by their predecessors in the name of the City.

of the military Mayor and Bureaus, if any were This was a complete ratification of the acts

needed.

power of the City. The utmost that could be Leasing the pier was within the corporate claimed against it would be that it was done by an unauthorized agent. Such an act can be rauned, and the acceptance of rent was a rati

fication.

Bank of Columbia v. Bateman, 7 Cranch, 299; Story, Ag., secs. 239, 252; 2 Kent, Com., 291; Bank of U. S. v. Dandridge, 12 Wheat., 74; Perkins v. Wash. Ins. Co. 4 Conn., 645; Am. Ins. Co. v. Oakley, 9 Paige, 496; Magill v. Kauffman, 4 Serg. & R., 317; Randall v. Van Vechten, 19 Johns., 60; Peterson v. Mayor of N. Y., 17 N. Y. 449.

Mr. Justice Swayne delivered the opinion of the court:

This is an appeal in equity from the decree of the Circuit Court of the United States for the District of Louisiana.

The questions presented for our determi nation are questions of law. The facts are undisputed.

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 the chairman of the Board of Finance, and by such Mayor, pursuant to a resolution signed 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. A lease of certain water [*388 front property therein described. The lease contained, among other things, the following stipulations:

The City granted to the Company the right to inclose and occupy, for their exclusive use, the demised premises for the term of ten years.

The Company was, at their own expense, to

of Major-General Canby, commanding that military department.

build a new wharf in front of the landing as designated, with new bulkheads to retain the levee earthworks throughout the whole extent The court refused to receive it, and the City of the front assigned to them, they furnishing excepted. The following faces were agreed by the requisite labor and materials to keep the the parties: from the execution of the lease to structure in complete order and repair until the 18th of April, 1866, the Company has been the termination of the lease, and then to deliver in peaceable possession of the demised premit to the city authorities in that condition, nat-ises, and had performed all its obligations unural wear and tear only excepted. The Com-der the lease. No notice was given by the City pany was to have the right at its own cost to of the intended demolition of the inclosure, and construct buildings and sheds within the in- it was done early in the morning. Under its closed space, as should be required for the tran- charter of 1856, the City had, before the war, saction of their shipping and freighting busi- leased portions of its wharves to individuals ness. The wharves were to be completed with- and companies, and had in one instance farmed in a year from the date of the lease, of new ma- out the collections of levee dues upon all the terials, in a workmanlike manner, and to be wharves, by sections. protected by a line of heavy fonder 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 inclosures, 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 note. The Compary expended more than $65,000 in making 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 Survey389*] or, aided by a *number of laborers acting under an order of the City Council, approved by the Mayor, destroyed the fence or inclosure erected by the Company. It had cost them $7,000. The Company filed a bill and a supplemental bill, whereby they prayed for an injunction and damages. The rent notes given by the Company, then unpaid, were delivered over 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 remain. The note last paid, matured and was paid before the inclosure was destroyed. The City has not tendered back the money so paid, nor has it disclaimed the validity of the payment, nor has 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. Clark, the Mavor, applied to the Third District Court of the City for an injunction to restrain the Company from rebuilding the inclosure 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 are the City offered in evidence order No. 11,

The damages resulting from the destruction of the Company's buildings, etc., and the necessary employment, in consequence of this destruction, of additional watchmen, amounts to $8,000.

At the hearing, the court decreed that Clark, the Mayor, should pay a fine of $300 for contempt of 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.

Our remarks will be confined to the several objections to the decree taken by the counsel for the appellant.

The fine of $300 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. Crosby's Case, 3 Wils., 188; Williamson's Case, 26 Pa. St., 24; Ex parte Kearney, 7 Wheat., 41. 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. Taylor v. Taintor, 16 Wall.. 370, 21 L. ed. 280; Hagan v.. Lucas, 10 Pet., 400; Taylor v. Carryl, 20 How.. 584, 15 L. ed. 1028. Any relief to which the City was entitle should have been sought there, and that *court was com- [*393 petent to give it, either in the original or in an auxiliary case. As to any other court the matter was ultra vires. Freeman v. Howe, 24 How., 450, 16 L. ed. 749; Buck v. Colbath, 3 Wall., 334. 18 L. ed. 257. It was unnecessary, unwarranted in low, and erosely 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 Conby, No. 11, was isued 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: | to be so, it is insisted that when the military "And any alienation, disposition or grant will jurisdiction terminated, the lease fell with it. be subject to any rights and interest of the We cannot take this view of the subject. The General Government which may be involved, question arises whether the instrument was a and shall not extend beyond the time when the fair and reasonable exercise of the au- [*395 questions relative to those rights and interest thority under which it was made. A large may be determined by competent authority." amount of money was to be expended and was It does not appear that the government ever expended by the lessees. The lease was liable took any action touching this lease. The order to be annulled if the expenditures were not could not, therefore, in any view, affect the made and the work done within the limited rights of the parties. The court did not err in time specified. The war might last many refusing to receive it in evidence. 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 $8,000 a year was to be paid.

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 postliminium, 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 war. The Prize cases, 2 Black, 636, 17 L. ed. 394*] *459; Mrs. Alexander's Cotton, 2 Wall., 417, 17 L. ed. 919; Mauran v. Ins. Co., 6 Wall., 1, 18 L. ed. 836. In such cases the conquering power has a right to displace the pre-existing 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. Cross v. Harrison, 16 How., 164; Leitensdorfer v. Webb, 20 How., 176, 15 L. ed. 891; The Grapeshot, 9 Wall., 129, 19 L. ed. 651. 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 water front of the City during the continuance of the military possession of the United States was within the cope of their authority. But, conceding this

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. U. S. v. McRae, 8 L. R. Eq. Cas., 75. 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 its contract.

We think that 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 postliminium 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.

*We might, perhaps, well hold that [*396 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.

The judgment of the Circuit Court is affirmed.

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 continung 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, eight 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 Laws of War, at p. 780, sec. 4. He uses this language:

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 unsuc cessful 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

Sec. 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 immov397*] able property are, therefore, *not subject to the taxes, rents, etc., 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 prop-public use. erty 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 or 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 agree-ion of the United States. The Mexican authoriments, 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, Droit International, secs. 131-133, 186; Vattel, Droit des Gens, liv. 3, ch. 13, sec. 197, et seq.;Ins. Co. v. Canter, 1 Pet., 542, and other authorities; see, also, Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191.

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 formerly disavowed 398*]its *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

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, 9 How., 614. etc., 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, at the time of the [*399 shipment, subject to the sovereignty and dominties had been driven out or had submitted to our army and navy; and the country was in the firm and exclusive 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."

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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 postliminii 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

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