Argument against the jurisdiction. ment, and existing independent of the State statute, unconstitutional and void. 2. Then does the case come here under the 25th section, because the Circuit Court of Monroe County declared the fifth special plea bad? We say the Circuit Court of Monroe County, because there is no evidence that the Court of Appeals ever passed on that part of the case. Contrariwise, it rather seems that they did not. Judging by the certificate (supra, p. 222), no Federal question was raised but that relating to the new statute of limitations. If it was shown that the Court of Appeals did decide against its validity, haud constat that a Federal question was thus passed on. They may have decided the plea bad for other reasons, as ex. gr., for being argumentative, &c. But what is the plea at best? It is simply that Caperton acted under the authority of the rebel government, and that therefore he is justified. But this involves no question upon the validity or construction of the Constitution of the United States, or of any treaty, law, authority, or commission derived from the United States, nor upon the validity of any State law on account of its being in conflict with any provision of the Constitution of the United States, or any treaty, law, authority, or commission, derived from the United States. It is said that it involves a question of international law. If it does, this can give this court no jurisdiction. The law of nations is not embodied in any provision of the Constitution, nor in any treaty, act of Congress, or any authority, or commission derived from the United States. It is true that the courts of the United States, like the courts of the States, and of all other civilized countries, recognize the law of nations as binding upon them; and it is argued that as the government of the United States is charged with the management and control of our foreign relations, the courts of the United States ought to have the power of deciding in the last resort, all questions of international law, otherwise difficulties may arise with foreign nations on account of erroneous decisions by the State courts which the gov. Argument against the jurisdiction. ernment of the United States could not provide against. But whatever force the argument of convenience might have in a case arising between the United States and a foreign nation, it has very little in a case arising out of a defunct rebellion. It is no great hardship for parties who have plunged the country into a bloody and protracted war, and who have been pardoned for crimes the greatest known to the law-treason, murder, arson, and robbery among them to be required to make redress for the injuries which their neighbors have sustained at their hands. The case of McLeod, in the Supreme Court of New York, is referred to. The decision of that court was the subject of much criticism at the time. It was disapproved by Mr. Webster, who was then Secretary of State, and by Mr. Crittenden, Attorney-General of the United States, and many other distinguished jurists. Whether it was right or wrong is not important for our present purpose. But no attempt was made to bring the case before this court for revision. And it seems probable, that if the administration had supposed that this court had appellate jurisdiction from the New York courts in that case, that the case would have been brought before this court. The administration was seriously embarrassed by the decision. There was great danger of the country being plunged into a war with Great Britain, on account of its failure to surrender McLeod. Still, the courts of New York were permitted to maintain their jurisdiction and try McLeod for murder. The country was relieved from further controversy by the jury finding him not guilty. What is still more conclusive as to the opinion of the jurists of the country, as to the appellate jurisdiction of this court on questions of international law is, that immediately after the McLeod case was disposed of, an act of Congress passed, to give the courts of the United States jurisdiction. in similar cases that might thereafter arise. That act was passed August 29th, 1842. It provided that a writ of habeas corps might be issued by any judge of this court, or any District judge of the United States, where any "subject or Argument against the jurisdiction. citizen" of a foreign state, and "domiciled therein," was imprisoned for any act done or committed under the au thority of any foreign state or sovereign, the validity or effect whereof depended on the laws of nations. But this law can have no application to the case at bar. It is assumed by the other side that whenever the established government in a civil war exercises the powers and rights of a belligerent, and applies to the contest the rules and usages of war, that it thereby grants to the parties in rebellion all the rights and immunities of a party to a public international war; that if it sends or receives a flag of truce, exchanges prisoners, or blockades the ports of the insurgent government, it thereby makes the insurgents a belligerent power, which has a right to demand all the rights and immunities of an independent nation in a public international war. This is an error. It is one of the essential attributes of sovereignty which belongs to every independent nation, to determine for itself, how it will deal with rebels and insurgents against its authority and government., It may treat one of its insurgent citizens as an enemy and hold or exchange him as a prisoner of war, and another as a rebel and traitor and hang him for treason. Writers on international law say indeed that the rules and usages of civilized modern warfare, which are applicable to international wars, are equally applicable to civil wars. But they also say, that when an insurrection or rebellion is suppressed, the government may prosecute the parties that are engaged in it, and punish them for treason and rebellion. The case now before the court cannot, in short, be distinguished from Jones v. Hichman,* where it was held that “the proportions and size of the struggle did not affect its character," that there was no "rebel government de facto in any such sense as to give any legal efficacy to its acts," and that the judgment of a rebel court was illegal and void, and could not protect the judges and marshal from an action for false imprisonment. *9 Wallace, 197. Restatement of the case in the opinion. 3. As respects the pardon, the certificate from the Court of Appeals shows that it was not spoken of there at all. If it was so spoken of, the court perhaps thought that it had rightly been deemed insufficient either as evidence or plea, because it did not appear that more than two conditions had been observed. Mr. Justice CLIFFORD delivered the opinion of the court. Special jurisdiction only is given to this court by virtue of a writ of error to a State court, and unless the record shows that the case falls within the conditions annexed to the right of a party to invoke the exercise of the jurisdiction, the writ of error must be dismissed. Primarily those conditions are two: (1.) That it shall appear that some one of the questions specified in the twenty-fifth section of the Judiciary Act, or the second section of the amendatory act, did arise in the case. (2.) That the question which did so arise in the case was decided by the court in the way therein required to give this court jurisdiction to re-examine the question, and the rule is settled that unless both those things appear the jurisdiction does not attach.* On the sixth day of August, 1866, the plaintiff brought an action of trespass for false imprisonment against the defendant in the State court, in which he alleged that the defendant, on the twenty-ninth of June, 1862, with force and arms, seized the plaintiff and incarcerated him in a dungeon, and imprisoned him there for twenty-four days, separated from his home and family, and that he subjected him to great danger and many hardships, and seriously impaired his health and put him to great pain and distress, both of body and mind. Service having been made the defendant appeared and demurred to the declaration, and filed seven other pleas, as follows: (1.) That he was not guilty in manner and form as alleged. (2.) That the action was not brought within one year next after the right to bring the same accrued. (3.) * 1 Stat. at Large, 85; 14 I. 386. Restatement of the case in the opinion. That the action was not brought within two years next after the right to bring the same accrued. (4.) That more than two years had elapsed after the right to bring the action. accrued, and before the present limitation act of the State was passed. (5.) That the plaintiff and defendant were citizens of the same State, and that the whole time prescribed as a limitation had elapsed before the present act modifying the pre-existing law was passed. (6.) That the supposed grievances were acts done by the defendant as provost marshal under the military orders of the State, in time of actual war, as more fully set forth in the plea. (7.) That the President, on the seventh of September, 1865, granted the defendant a full pardon and amnesty for all offences by him committed, arising from participation, direct or indirect, in the rebellion. Subsequently the plaintiff filed a joinder to the demurrer, joined the issue tendered under the plea of not guilty, and filed a replication to the six special pleas as follows: (1.) That the action is not barred as alleged, and tendered an issue to the country. (2.) That the action is not barred as alleged in the second special plea, and also tendered an issue to the country. (3.) That the action is not barred as alleged in the third special plea, and tendered an issue to the country. (4.) Plaintiff filed a demurrer to the fourth, fifth, and sixth special pleas, and the defendant demurred to the replication of the plaintiff to the defendant's first special plea. All the issues of law were determined by the court in favor of the plaintiff, that is, the court overruled the demurrer to the declaration, sustained the demurrers of the plaintiff to the fourth, fifth, and sixth special pleas of the defendant, and also overruled the demurrer of the defendant to the plaintiff's replication to the defendant's first special plea, which left nothing for trial but the issues of fact, which were submitted to a jury, and the jury found all the issues of fact in favor of the plaintiff, and that the defendant was guilty as alleged in the declaration, and assessed damages for the plaintiff in the sum of eight hundred and thirtythree dollars. Judgment was rendered for the plaintiff, and |