Henry Billings Brown

“ Kaufman, 96 U.S. 567, 24 L. ed. 792, a brewer who had been illegally assessed for a special tax upon his business was held entitled to bring suit in the court of claims to recover back the amount, upon the ground that no special remedy had been provided for the enforcement of the payment, and consequently the general laws which govern the court of claims may be resorted to for relief, if any can be found applicable to such a case. This is upon the principle that a liability created by statute without a remedy may be enforced by a common-law action. ”

“ While in legislating for a conquered country he may disregard the laws of that country, he is not wholly above the laws of his own. For instance, it is clear that, while a military commander during the Civil War was in the occupation of a southern port he could impose duties upon merchandise arriving from abroad, it would hardly be contended that he could also impose duties upon merchandise arriving from ports of his own country. ”

“ Upon the occupation of the country by the military forces of the United States the authority of the Spanish government was superseded, but the necessity for a revenue did not cease. The government must be carried on, and there was no one left to administer its functions but the military forces of the United States. Money is requisite for that purpose, and money could only be raised by order of the military commander. ”

“ In such cases the conquering power has the 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. ”

“ Rep. 1011, it was held that a claim for damages for the use and occupation of land under tide water, for the erection and maintenance of a lighthouse, without the consent of the owner, but not showing that the United States had acknowledged any right of property in him as against them, was a case sounding in tort, of which the circuit court had no jurisdiction under the Tucker act. It was said that 'the United States cannot be sued in their own courts without their consent, and have never permitted themselves to be sued in any court for torts committed in their name by their officers. ”

“ Rep. 743, an appeal is given from the decision of the collector 'as to the rate and amount of duties chargeable upon imported merchandise,' to a board of general appraisers, whose decision shall be final and conclusive 'as to the construction of the law and the facts respecting the classification of such merchandise and the rate of duty imposed thereon under such classification,' unless application be made for a review to the circuit court of the United States. This remedy is doubtless exclusive as applied to customs cases ”

“ 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.' See also Thirty Hogsheads of Sugar v. ”