directly, in the Court of Claims, upon contracts express or implied. It therefore cannot complain of not being made a party to a suit against one of its vendees. And the latter is guilty of no laches in not calling his sovereign vendor in warranty, so as to give him the opportunity of defending the title given.

In the titles given, under the orders of the court, by virtue of the plenary power of the eighth section of the confiscation act of 1862, there was warranty assumed by the government, as appears by the records of the cases we have mentioned. If, in some of the District Courts, titles were given without warranty expressed, it was necessarily implied; that is, there was an implied contract by which the vendor agreed to return the price in case the object of the price should fail, as there is in all such conventional transactions.1 And this warranty, whether express or implied, was given by the vendor with full knowledge of the fact, at the time, that he could not be directly called in warranty, in case of an attack upon the title, but must be reached by the exceptional method above indicated, devised by himself; or in such other way as he might afterwards provide. He sold as owner and conveyed title as owner. Being an artificial person, he had to use the courts and marshals in making sales and titles, but he did not sell as a creditor making a judicial sale of a debtor's property to recover a judgment debt: he sold as owner as fully as any private citizen could have done in a private sale, with all the consequences of such a sale, including the obligation to return the price if he really conveyed nothing.

This being true in cases where the confiscation was afterwards held valid but the sale of the fee void, (that is, where the vendor really had become the owner of the land before the invalid sale of it by him to a purchaser,) it is yet more apparently true in cases where both the confiscation and sale were judicially declared void, after title by the government, as owner, had been given. In the latter case, the vendor sold, and took pay for, that which he had no right to sell. If, because he is a sovereign, he may retain the price, there would seem to be an

1 Ante, chap. xiv., on Sale and Warranty.

end of just government. Nemo debit locupletari ex alterius incommodo. § 442.

"Caveat Emptor" Inapplicable. In a suit by the purchaser to have the price refunded, after his having been divested of a valid title by the irresistible decree of a court without jurisdiction, neither he nor the government can deny the binding effect of such decree upon them both; but, should he be met with the maxim caveat emptor, he may shield himself by the decree under which he bought, and show that there was nothing of which he should have been watchful; that there was no lack of wariness when he bought; and that he should not be twitted with want of foresight with regard to the future overturning of a decree res adjudicata quoad omnes.

The maxim would be inapplicable, however, where the gov ernment sold as owner, not as creditor, even if the decree, upon which the purchaser's title rested, had been null and void, ab initio; since the government could not be allowed to retain the purchaser's money, yet give him nothing, under cover of such maxim, as we showed in the first book.1

Several topics incidentally noticed in this chapter, are not peculiar to Things Hostile, and have been treated when considering Things in General. 2

1 Ante, chap. xiv., and authorities there cited.

2 For jurisdiction of the subject matter, § 84; exercise of jurisdiction, § 85; for coram non judice, § 86; for res judicata, § 111; for collateral attacks inadmissible, § 112; for sale of

what is condemned, § 123; for confirmation of sale, § 124; for warranty by the government selling as owner, $126-132; for caveat emptor, §§ 130, 131; and see authorities cited on those subjects.

CHAPTER XLI.

INTERESTS VESTED UNDER PUBLIC LAW CONSIDERED WITH REFERENCE TO PARDON, REMISSION, DEATH, ETC.

§ 443.

446

Procedure and Principles Alike in All Actions Against Enemy Property. In all proceedings against enemy property, whether captured at sea or seized upon land; whether libelled under the prize act or any other act, the law of nations governs. There is no difference whatever in the application of principles, whether we consider the belligerent right to the thing based always upon enemy ownership, the civil character of the action, the notice to all the world, the default concluding all non-appearers, the finding of facts against the thing and against all persons, the decree of confiscation res adjudicata with regard to all, the vesting of the ownership in the successful libellant, the new title shorn of all encumbrances, the sale of it by the libellant in his capacity as owner, or the complete jurisdiction of the court of nations having charge of the subject matter, or the inviolability of its final decrees. From seizure to sale; from the forfeiting by the enemy to the conveying of title to the purchaser, there is no difference between the confiscation of naval prizes and that of enemy

property seized upon land, so far as it concerns the principles which govern.

The peculiarities appertaining to mere directory laws, such as the prize acts, non-intercourse acts, and acts to suppress insurrection, are confined to minor matters, some limiting procedure under the law of nations to designated classes of prop erty, but none making any difference in the application of the public law in all its force to the property to be confiscated. Greater liberality has been extended to the lien holder under the other acts mentioned than under the prize acts, but that does not disturb the general application of the public law to the uniform vindication of the jus in re. No constitutional inhibition applies to one that does not apply to all. No limitation of the res applies to one that does not apply to all.

S444. Error of Confounding Hostile with Guilty Things. Whatever confusion has prevailed, with respect to the application of principles, has arisen from the confounding of proceedings against things hostile with those against things guilty; even confounding the actio in rem with the actio in personam -with criminal prosecution for treason. Uno absurdo dato, infinita sequuntur. When this error had been made, it was easy for all the others to follow: errors as to seizure, as to notice, as to default, as to claim, as to enemy standing in court, as to the finding of facts against the res and all persons, as to the condemnation of the thing operating as res adjudicata quoad omnes, as to the constitutional restriction to treason forfeitures, etc.

It has been shown that the divergent road from the true one was ill-advisedly taken, and the decisions which go to sustain. the errors above mentioned, and others, have been clearly demonstrated to be-not law. The legislation which gave rise to those decisions may be taken out of the exceptional condition in which they placed it; and it may be confidently concluded that so far as a proceeding in rem-against a thing hostile is concerned, the principles of the public law apply, whatever may be the directory statute invoking them.

In any case, so soon as it is ascertained that the res is enemy property, the jus gentium applies, and always in its full force,

unless some nation may have contented itself with the assertion of less than its full rights. The United States have not thus shorn themselves by any statute, except that it has limited itself, in seizures, as above stated: not at all in its procedure. after seizure to the final result.

S445. Effect of Peace Upon Belligerent Rights to Property. By the public law, all the rights against enemy property are war rights; consequently they cease with a war.

Peace does

not put an end to any right vested during war; to any proceeding upon seizure already made; to any title already created. Nor does the surrender by one party operate as peace; for, till a treaty of peace shall have been made, the victorious nation may go on to indemnify itself for the expenses of war, by taking enemy property. And, where there has been legitimate war only on one side, that is, where the opposite belligerents were insurgents, there is no treaty of peace to be made; and hence, the time when the war right to take property shall cease is left entirely to the will of the nation.

The late rebellion in the United States, not having been a war among States, but one with a nation on the one side and insurgents on the other, gave rise to mutual belligerent rights only so far as the legitimate party, from necessity or other motive, may have conceded. Though the nation claimed jurisdiction over the whole country, it treated a part of its domain as enemy territory for convenience sake in the prosecution of the war; though it demanded allegiance of all its people as citizens, it treated the insurgent ones as enemies for the purpose of applying the law of nations to them and their property. § 446. Citizen Enemy Property Subject to the Same Principles as Foreign Enemy Property Under the Jus Gentium. But, once conceding from necessity or for convenience, that their property was enemy property, the principles to be applied by the courts in all proceedings against such property were precisely as though its ownership had been in a foreign enemy, in a public war, where there are two legitimate hostile parties. It follows, that a citizen enemy could no more shield himself, under plea of citizenship, from the results of confiscation, than a foreign one could.