Because of this state of belligerency, the United States possessed the right of capture. The seizure of this cotton was an exercise of it. Haycraft v. United States, 22 Wall. 81. Legislation did not confer, but only modified, this right. Smith v. Brazleton, 1 Heisk. (Tenn.) 59-61; Price v. Poynter, 1 Bush, 388-395; Mrs. Alexander's Cotton, 2 Wall. 419, 420; The Prize Cases, 2 Black, 671; Brown v. United States, 8 Cranch, 122, 123, 149-151, 154; Upton, Mar. Warf. (1861), 87; No. Am. Rev. for April, 1872, 399; Planters' Bank v. Union Bank, 16 Wall. 483; Coolidge v. Guthrie, 8 Am. Law Reg. N.S. 24; The Emulous, 1 Gall. 582, 583; Gray Jacket, 5 Wall. 369; United States v. Padelford, 9 id. 531; Miller v. United States, 11 id. 268; Sprott v. United States, 20 id. 459, Lamar v. Browne, 92 U.S. 187.

The suit is, in effect, one to vindicate the freedom of interstate commerce, and no State has the right to sue for such purpose, Louisiana v. Texas, supra; Oklahoma v. Atchison Ry., 222 U.S. 289; Oklahoma v. Gulf, etc. Ry., 220 U.S. 290, and especially here, when the statute confines its vindication to suit by the Attorney General of the United States. Minnesota v. Northern Securities Co., 194 U.S. 46; Southern Pacific v. Dredging Co., 260 U.S. 205; Geddes v. Anaconda Co., 254 U.S. 590; General Investment Co. v. Lake Shore, etc. Ry. Co., 260 U.S. 261; Haycraft v. United States, 22 Wall. 81. Plaintiffs, showing no special injury different from that of the public at large, are debarred from suing by traditional principles of equity; they must rely on suits by the Attorney General, Georgetown v. Alexandria Canal Co., 12 Pet. 91; Irwin v. Dixon, 9 How. 10; Mississippi, etc. Ry. v. Ward, 2 Black 485; Gilman v. Philadelphia, 3 Wall. 713.

In what way do these acts hinder or prevent drilling for the production of oil? The Utilities Company is even commanded to remove its pipe lines already laid, and there is not one word of testimony that it has in any way interfered with operations of the petitioners. Cf. Brookshire Oil Co. v. Casmalia Ranch and Oil Development Co., 156 Cal. 211; Lindley, Mines, 3d. ed., §§ 814, 827; Chartier's Block Coal Co. v. Mellon, 152 Pa. 286; Williams v. South Penn Oil Co., 52 W. Va. 181; Globe Newspaper Co. v. Walker, 210 U.S. 356; Haycraft v. United States, 22 Wall. 81; The Harrisburg, 119 U.S. 199; Van Norton v. Morton, 99 U.S. 378; New Orleans v. Construction Co., 129 U.S. 45. The right of Kieffer to have his damages determined by a jury and paid or secured as the statute directs, is a legal right given him by the Act of July 17, 1914. If the parties cannot agree, the surface owner in possession has a constitutional right to a trial by jury before his possession could be disturbed. Singer Sewing Machine Co. v. Benedict, 229 U.S. 481; Travelers Protective Ass'n v. Gilbert, 111 F. 269; Union Pacific R.R. Co. v. Board of Comm'rs, 222 F. 651; Traction Co. v. Mining Co., 196 U.S. 239; Kohl v. United States, 91 U.S. 367; Filbin v. United States, 265 F. 354.

These suits are not in any real sense suits against the Imperial German Government, and do not involve an adjudication of rights or obligations of a foreign sovereign in contravention of established principles of international law. Neither the German Government nor German nationals have any rights in the property or money seized under the war power, except such as may be granted by Congress. The belligerent determines how far it will exercise the right of confiscation. Rose v. Himely, 4 Cranch 272; Brown v. United States, 8 Cranch 111; United States v. Alexander, 2 Wall. 404; United States v. Padelford, 9 Wall. 531; Sprott v. United States, 20 Wall. 459; Haycraft v. United States, 22 Wall. 81; Lamar v. Browne, 92 U.S. 187; Young v. United States, 97 U.S. 39; Hijo Case, 194 U.S. 315; Herrera Case, 222 U.S. 558. The German Government itself, which has not intervened to assert its rights, is the only party that would be in a position to take advantage of the alleged unconstitutionality. Not only has it failed to do this, but, by the terms of the Treaty of Peace with the United States it has expressly consented that all of its property in the hands of the Alien Property Custodian may be disposed of in accordance with the laws of the United States in effect on November 11, 1921, the date of the ratification of the Treaty. The solemn admissions of the sworn answer of the appellant, Miller, as Custodian, of the facts found by him and his resulting determination of enemy ownership in the Imperial German Government and of the appellant, White, as Treasurer, of the facts with respect to the record entries on the books of the Treasury in the name of the Imperial German Government, a

Cary v. Curtis, 3 How. 236; Bartlett v. Kane, 16 How. 263; Arnson v. Murphy, 109 U.S. 238; and requiring a taxpayer to pay a disputed tax and sue to recover. Murray v. Hoboken Land Co., 18 How. 272; Springer v. United States, 102 U.S. 586; Dodge v. Osborn, 240 U.S. 118. Under the Abandoned Property Act of March 12, 1863, see Haycraft v. United States, 22 Wall. 81. See also Barker v. Harvey, 181 U.S. 481; Botiller v. Dominguez, 130 U.S. 238, 250; Florida v. Furman, 180 U.S. 402; Moyer v. Peabody, 212 U.S. 78; Pacific Live Stock Co. v. Lewis, 241 U.S. 440. While the remedy under § 9 remains, in contemplation of law there is no possibility that a person rightfully entitled to property seized by the Custodian can be materially injured or deprived of property without due process of law.

The rule in the Federal courts is that where a statute changing the common law prescribes a penalty, no civil action can be maintained for doing the acts which give rise to the penalty. Dollar Savings Bank v. United States, 19 Wall. 227, 238; Haycraft v. United States, 22 Wall. 81, 98; Pollard v. Bailey, 20 Wall. 520, 527; Farmers' Nat. Bank v. Dearing, 91 U.S. 29, 35; Barnet v. Nat. Bank, 98 U.S. 555; Stephens v. Monongahela Bank, 111 U.S. 197; Carter v. Carusi, 112 U.S. 478, 483; McBrown v. Scottish Investment Co., 153 U.S. 318, 325; Central Stock Yards v. L. N.R. Co., 112 F. 823, 826. The Attorney General and The Solicitor General for the United States, at the suggestion of the court, there being no brief filed for defendant in error:

" In Haycraft v. United States, 22 Wall. 81, 92, it was held, at October term, 1874, that under the provision of the act of March 12, 1863, that any person claiming to be the owner of captured or abandoned property might "at any time within two years after the suppression of the rebellion, prefer his claim to the proceeds thereof in the Court of Claims, and, on proof . . . that he has never given any aid or comfort to the present rebellion," receive the proceeds of the sale of such property, a person who had given aid and comfort to the rebellion and who had not been pardoned until after two years from the suppression of the rebellion could not, on then preferring his petition, obtain the benefit of the act, even though in cases generally the limitation of actions in that court was one of six years; that the question was not one of limitation but of jurisdiction, and that the inability of an unpardoned rebel to sue in the Court of Claims did not control the operation of the statute. The court said, through Mr. Chief Justice Waite:

In January, 1873, the appellant brought suit in the Court of Claims, under the Captured and Abandoned Property Act, to recover the proceeds of two hundred and eighty-three bales of cotton, alleged to have belonged to him, and to have been seized and taken from his possession in Savannah, in February, 1865, by the military forces of the United States, and to have been sold by the agent of the Treasury Department, and the proceeds paid into the treasury. After issue had been joined in the suit, and evidence on behalf of the claimant had been taken, but before a hearing was had, Haycraft v. United States (22 Wall. 81) was decided by this court; in which it was held that the Court of Claims had no jurisdiction to hear and determine any claim arising under the provisions of that act, unless suit upon the same was commenced within two years after the suppression of the rebellion. It had been previously decided that, within the meaning of the act, the rebellion was to be considered as suppressed throughout the whole of the United States on the 20th of August, 1866, the day on which the President, by his proclamation, had declared it suppressed in Texas, the last of the States in insurrection.

That cotton, though private property, was a legitimate subject of capture, is no longer an open question in this court. U.S. v. Anderson, 2 Wall. 404; U.S. v. Padelford, 9 Wall. 540; Haycraft v. U.S., 22 Wall. 81. It was the foundation on which the hopes of the rebellion were built. It was substantially the only means which the insurgents had of securing influence abroad. In the hands of private owners, it was subject to forced contributions in aid of the common cause. Its exportation through the blockade was a public necessity.

See , e.g. , United States v. U.S. Fid. & Guar. Co. , 309 U.S. 506, 514, 60 S.Ct. 653, 84 L.Ed. 894 (1940) ("Consent alone gives jurisdiction to adjudge against a sovereign. Absent that consent, the attempted exercise of judicial power is void."); Haycraft v. United States , 89 U.S. 81, 92, 22 Wall. 81, 22 L.Ed. 738 (1874) ("To our minds the question is one of jurisdiction. A sovereign cannot be sued in his own courts except with his consent."); United States v. McLemore , 45 U.S. (4 How.) 286, 288, 11 L.Ed. 977 (1846) ("There was no jurisdiction of this case in the Circuit Court, as the government is not liable to be sued, except with its own consent.").