*323 sides," precludes a suit against the United States by any person, natural or corporate, residing out of the country. We express no opinion upon that question, as there are other grounds upon which we may satisfactorily rest our decision. The present suit finds no sanction in the above act, even if the plaintiff were not a foreign corporation. Its claim is not founded on the Constitution of the United States, or on any act of Congress, or on any regulation of an executive department. Nor can it be said to be founded on contract, express or implied. There is no element of contract in the case; for nothing was done by the United States, nor anything said by any of its officers, from which could be implied an agreement or obligation to pay for the use of the plaintiff's vessel. According to the established principles of public law, the owners of the vessel, being Spanish subjects, were to be deemed enemies, although not directly connected with military operations. The vessel was, therefore, to be deemed enemy's property. It was seized as property of that kind, for purposes of war, and not for any purposes of gain. The case does not come within the principle announced in United States v. Great Falls Mfg. Co. 112 U. S. 645, 656, 28 L. ed. 846, 850, 5 Sup. Ct. Rep. 306, 311, where this court said that "the United States, having by its agents, proceeding under the authority of an act of Congress, taken the property of claimant for public use, are under an obligation, imposed by the Constitution, to make compensation. The law will imply a promise to make the required compensation where property to which the government asserts no title is taken pursuant to an act of Congress as private property, to be applied for public uses. Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the claimant's cause of action is one that arises out of im The plied contract, within the meaning of the statute which confers jurisdiction upon the court of claims of actions founded 'upon any contract, expressed or implied, with the government of the United States."" The seizure, which occurred while the war was flagrant, was an act of war, occurring within the limits of military operations. action, in its essence, is for the recovery of damages; but as the case is one sounding in tort, no suit for damages can be maintained under the statute, against the United States. It is none the less a case sounding in tort because the claim is in form for the use of the vessel after actual hostilities were suspended by the protocol of August 12th, 1898. A state of war did not, in law, cease .. At until the ratification in April, 1899, of the treaty of peace. "A truce or suspension of arms," says Kent, "does not terminate the war, but it is one of the commercia belli which suspends its operations. the expiration of the truce, hostilities may recommence without any fresh declaration of war." 1 Kent, Com. 159, 161. If the original seizure made a case sounding in tort, as it undoubtedly did, the transaction was not converted into one of implied contract because of the retention and use of the vessel, pending negotiations for a treaty of peace. Besides, the treaty of peace be tween the two countries provided that "the United States and Spain mutually relinquish all claims for indemnity, national and individual, of every kind, of either government, or of its citizens or subjects, against the other government, that may have arisen since the beginning of the late insurrection in Cuba, and prior to the exchange of ratifications of the present treaty, including all claims for indemnity for the cost of the war. The United States will adjudicate and settle the claims of its citizens against Spain, relinquished in this article." This stipulation clearly embraces the claim of the plaintiff,-its claim against the United States for indemnity having arisen prior to the exchange of ratifications of the treaty of peace with Spain. We may add that even if the act of March, 1887, standing alone, could be construed as authorizing a suit of this kind, the plaintiff must fail; for, it is well settled that in case of a conflict between an act of Congress and a treaty, each being equally the supreme law of the land, the one last in date must prevail in the courts. The Cherokee Tobacco, 11 Wall. 616, 621, 20 L. ed. 227, 229; Whitney v. Robertson, 124 U. S. 190, 194, 31 L. ed. 386, 388, 8 Sup. Ct. Rep. 456; United States v. Lee Yen Tai, 185 U. S. 213, 221, 46 L. ed. 878, 883, 22 Sup. Ct. Rep. 629. It results that the judgment below, dismissing the action, must be affirmed. It is so ordered. 324 *459 Submitted April 25, 1904. 31, 1904. PET Decided May | tled by a final decree, from which, so far as appeared, no appeal had been taken. He was found guilty of contempt of court, and a fine of $250 imposed, payable to the United States, with costs. ETITION for a Writ of Mandamus to compel the Circuit Court of Appeals for the Second Circuit to reinstate and take jurisdiction of a writ of error to review an order of the Circuit Court for the Southern District of New York, adjudging the defendant in a suit for infringement of a patent guilty of contempt in disobeying a preliminary injunction, and ordering him to pay a fine, one half to the United States and the other half to the complainant. Granted. Statement by Mr. Chief Justice Fuller: This is a petition for a writ of mandamus commanding the circuit court of appeals for the second circuit to reinstate and take jurisdiction of a writ of error filed by the petitioner in that court, by which it sought to have reviewed an order of the circuit court for the southern district of New York, adjudging the petitioner guilty of contempt. The facts are, that on August 13, 1900, the Westinghouse Airbrake Company filed in the circuit court its bill of complaint, alleging the ownership of certain letters patent, an infringement by this petitioner, and praying an injunction restraining such infringement, and an accounting of profits and damages. A preliminary injunction was ordered on October 18, 1901. On February 21, 1903, the petitioner was adjudged guilty of contempt in disobeying that injunction, and ordered to pay a fine of $1,000; one half to the United States and the other half to the complainant. On March 23, 1903, a writ of error to revise this order was allowed by the circuit court, and a full transcript of the proceedings in that court duly certified to the circuit court of appeals. On March 18, 1903, the circuit court entered a decree sustaining the validity of the patent, directing a permanent injunction, and an accounting of profits and damages. On April 16, 1903, an appeal was taken from this decree. A hearing on the writ of error was had before the circuit court of appeals, and, on February 13, 1904, that court dismissed the writ of error. In this case the Christensen Engineering Company was a party. The contempt was disobedience of preliminary injunction, and the judgment in contempt was intermediate the preliminary injunction and the decree making it permanent. The fine was payable, one half to the United States, and the other half to the complainant. The distinction between a proceeding in which a fine is imposed by way of compensation to the party injured by the disobedience, and where it is by way of punishment for an act done in contempt of the power and authority of the court, is pointed out in Bessette's Case, and disclosed by some of the cases referred to in the opinion. In New Orleans v. New York Mail S. S. Co. 20 Wall. 387, 22 L. ed. 354, the act in contempt was by one not then a party to the suit. No order was entered against him until the final decree in the case, and then he was punished for the act of disobedience, purely as an act of a criminal nature, and without compensation to the plaintiff in whose favor the injunction was originally ordered. No review under the then-existing law was allowable. In Hayes v. Fischer, 102 U. S. 121, 26 L. ed. 95, the contempt proceeding was remedial and compensatory, and the entire amount of the fine was ordered paid to the plaintiff in reimbursement. It was held that, if the remedial feature was alone to be considered, and the proceeding regarded as a part of the suit, it could not be brought to this court by writ of error, but could only be corrected on appeal from the final decree; if to be regarded as a criminal action, then it was one of which this court had no jurisdiction, either by writ of error or appeal. In Ex parte Debs, 159 U. S. 251, 15 Sup. Ct. Rep. 1039, there was nothing of a remedial or compensatory nature. No fine was imposed, but only a sentence of imprisonment. This court had no jurisdiction of a writ of error in such a case. And see O'Neal v. United States, 190 U. S. 36, 47 L. ed. 945, 23 Sup. Ct. Rep. 776. In Worden v. Searls, 121 U. S. 14, 30 L. ed. 853, 7 Sup. Ct. Rep. 814, the proceeding was remedial and compensatory, in that for violations of a preliminary injunction the defendants were ordered to pay the plaintiff $250 "as a fine for said violation," by one order, and, by another order, to pay a fine of $1,182 to the clerk, to be paid over by him to the plaintiff for In that case Bessette was not a party to "damages and costs," the $1,182 being made the suit, and the controversy had been set-up of $682 profits made by the infringe Mr. William A. Jenner for petitioner. Mr. Frederic H. Betts for respondent. Mr. Chief Justice Fuller delivered the opinion of the court: The examination in Bessette v. W. B. Conkey Co. just decided (194 U. S. 324, ante, p. 665, 24 Sup. Ct. Rep. 665), of the right of review in contempt cases, precludes the necessity of extended discussion. ⚫460 461 ment, and $500 expenses of plaintiff in the contempt proceedings. These interlocutory orders were reviewed by this court on appeal from the final decree, and as that decree was reversed, the orders were also set aside, this being done "without prejudice to the power and right of the circuit court to punish the contempt referred to in those orders, by a proper proceeding." It was also said "that, though the proceedings were nominally those of contempt, they were really proceedings to award damages to the plaintiff, and to reimburse to him his expenses." These authorities show that when an order imposing a fine for violation of an injunction is substantially one to reimburse the party injured by the disobedience, although called one in a contempt proceeding, it is to be regarded as merely an interlocutory order, and to be reviewed only on appeal from the final decree. 3. statute relating to the qualification of jurors went into effect must be tested by that statute, in view of the provision of the act of April 12, 1900 (31 Stat. at L. 85, chap. 191), § 14, that the statutory laws of the United States not locally inapplicable, except as otherwise provided, shall have the same force and effect in Porto Rico as in the United States, and of § 34, that, in addition to the ordinary jurisdiction of Federal district courts, the district court of the United States for Porto Rico shall have jurisdiction "in all cases cognizant in the circuit courts of the United States, and shall proceed therein in the same manner as a circuit court," read in connection with U. S. Rev. Stat. § 800 (U. S. Comp. Stat. 1901, p. 623), which declares that jurors to serve in Federal courts, in each state respectively, shall have the same qualifications as jurors of the highest court of law in that state at the time when such jurors are summoned. An objection to the personal qualifications of grand jurors may be taken by plea in abatement, filed after the return of the indictment, but prior to arraignment, and as soon as the facts on which the objection was based were ascertained. In the present case, however, the fine payable to the United States was clearly puni- 4. Statutory disqualification of grand jurors tive and in vindication of the authority of the court, and, we think, as such, it dominates the proceeding, and fixes its character. Considered in that aspect, the writ of error was justified, and the Circuit Court of Appeals should have taken jurisdiction. Petitioner entitled to mandamus. (194 U. S. 461) HAROLD CROWLEY, Piff. in Err. v. UNITED STATES. cannot be regarded as a mere defect or imperfection in form, within the meaning of the provision of U. S. Rev. Stat. § 1025 (U. 8. Comp. Stat. 1901, p. 720), that no indictment shall be deemed insufficient, or the trial, judg ment, or other proceeding thereon be affected by reason of any defect or imperfection in matter of form only, which shall not tend to the prejudice of the defendant. 5. Criminal prosecutions for an infamous crime against the United States cannot be commenced in the district court of the United States for the district of Porto Rico except on presentment or indictment of a grand jury, in view of the provision of the act of April 12, 1900 (31 Stat. at L. 85, chap. 191), 8 34, that such court shall proceed in the same manner as a Federal circuit court. [No. 205.] Error to Federal district court for Porto Rico-denial of right claimed under Federal statute-qualifications of grand jurors-applicability of local laws-objec- Submitted April 12, 1904. Decided May 31, tion of disqualification may be raised by plea in abatement-disqualification not a mere formal defect-necessity of indictment in criminal prosecutions. 1. A case in which "an act of Congress is brought in question and the right claimed thereunder is denied," within the meaning of the act of April 12, 1900 (31 Stat. at L. 85, chap. 191), § 35, providing for a review in the Federal Supreme Court of final decisions of the district court of the United States for the district of Porto Rico, is presented by an unsuccessful contention by an accused, that, pursuant to that act, the trial court, in the matter of the qualifications of grand jurors, should have been controlled by the provisions of the local law relating to jurors, in connection with the statutes of the United States relating to the organization of grand juries, and the trial and disposition of criminal causes. The competency of grand jurors summoned by the district court of the United States for the district of Porto Rico after a valid local 1904. IN ERROR to the District Court of the United States for the District of Porto Rico, to review a conviction upon an indictment to which the accused had unsuccessfully filed a plea in abatement, questioning the competency of certain jurors who participated in the finding of the indictment. Reversed and remanded, with directions to overrule the demurrer to the plea in abatement. The facts are stated in the opinion. 463 district court of the United States for the aforesaid, returned and presented to this district of Porto Rico, as constituted by the court on Wednesday, April 10th, 1901. act of Congress of April 12th, 1900, entitled "An Act Temporarily to Provide Revenues and a Civil Government for Porto Rico, and for Other Purposes." 31 Stat. at L. 85, chap. 191. The indictment was based upon certain sections of the Revised Statutes of the United States relating to crimes committed by persons employed in the postal service. Rev. Stat. §§ 5467, 5468, and 5469 (U. S. Comp. Stat. 1901, pp. 3691, 3692). The punishment for the offense here charged was imprisonment at hard labor for one year, and not exceeding five years. After the return of the indictment, the accused filed a plea in abatement, which questioned the competency of certain jurors who participated in the finding of the indictment. "Defendant says that by an act of the legislative assembly of Porto Rico, which took effect January 31st, 1901, it was provided (§ 3) that jurors shall have the following qualifications, among others: "1st. A male citizen of the United States or of Porto Rico, of the age of twenty-one years, and not more than sixty years, who shall have been a resident of the island one year, and of the district or county ninety days before being selected and returned. "4th. Assessed on the last assessment roll of the district or county on property of the value of at least $200, belonging to him. "Sec. 4. A person is not competent to act as a juror (1st) who does not possess the qualifications prescribed by the preceding section"-which said provisions were in full force and effect at and before the time that all of the persons were summoned and impaneled, and returned said indictment as aforesaid. As the action of the court on that plea constitutes the controlling question in the case, the plea is given in full, as follows: "Now comes the defendant, Harold Crow- "That by the law of Porto Rico, as aforeley, and pleads in abatement to the indict- said, causes of challenge to jurors are and ment returned herein, and says that on Mon- were at said time last above mentioned, a want day, the 8th day of April, 1901, there ap- of any of the qualifications prescribed by law peared in this court at San Juan, it being to render a person a competent juror. Dethe first day of said term, the following-fendant [states] that Manuel Adino is, and named persons: Manuel Romero Haxthau- was, at the time above mentioned, a citizen sen, Pedro Fernandez, Alex. Nones, John D. of the Republic of Venezuela. That W. H. H. Luce, Antonio Blanco, Manuel Andino Holt, Jr., has not been a citizen of Porto Pacheco, E. L. Arnold, Henry V. Dooley, J. Rico for one year prior to the dates and Ramon Latimer, Miguel Olmedo, Ramon time above mentioned when said jury was so Gandie, Charles H. Post, numbering twelve summoned, impaneled, and returned, and in all, which said persons were then and when said alleged indictment was returned. there, by the direction of the court and the marshal, *placed in the jury box, to constitute the panel for the grand jury of this said April term, 1901, of this court. "Defendant says that at the same time last above mentioned the following persons, composing and constituting the said grand jury, were not assessed on the last assessment roll of any of the districts of Porto Rico on property of the value of $200, belong Pacheco, Miguel Olmedo, Charles H. Post, Frank Antonsanti, or Frank Santi, or Antonio Santi, W. H. Holt, Jr., William Bowen. "Whereupon the court then ordered the marshal to summon other persons to fill up the panel of the said grand jury, and imme-ing to him: Antonio Blanco, Manuel Andino diately the marshal of the court sent his deputy out of the court room and into the city of San Juan to summon other jurors for such grand jury. Within a few minutes thereafter the marshal brought into court "Defendant further says that the followFrank Antonsanti (returned as Antonio ing persons, composing and constituting said Santi and Frank Santi, as appears by the grand jury, were not, at the time above minutes of this court), Hugo Stern, and mentioned, publicly drawn from the box, William Bowen, the said persons not hav-containing at the time of each drawing the ing been then and there bystanders in the court. The said panel then being incomplete, the marshal placed W. H. Holt, Jr., in the box, he being at the time a bystander in said court. names of not less than three hundred persons, possessing the qualifications prescribed in 800 of the Revised Statutes (U. S. Comp. Stat. 1901, p. 623), and which said names (hereinafter set out) had not been "Defendant says that thereupon the grand placed therein by the clerk of this court jury was constituted from the persons above and a jury commissioner, as provided by named, and, after being sworn, proceeded to act of June 30th, 1879 [21 Stat. at L render a true bill against the defendant, 43, chap. 52, U. S. Comp. Stat. 1901, p. which said alleged true bill on indictment 624]. was, by the said grand jury, constituted as "Such persons whose names were not in 465 said box and selected and summoned in the a regular term. That plea was also overmanner as aforesaid at the dates and times ruled. The accused was then arraigned aforesaid were Hugo Stern, W. H. Holt, Jr., and pleaded not guilty, and a trial was Frank Antonsanti, alias Frank Santi, alias had, resulting in a verdict of guilty, and Antonio Santi, William Bowen. a sentence to four years' imprisonment in the penitentiary. "Defendant says that no writs of venire facias were directed by the court against the said last above named persons from the clerk's office, signed by the clerk or his deputy, nor returned in the manner provided by Revised Statutes, § 803 (U. S. Comp. Stat. 1901, p. 625). Defendant says that he was not present in court at the time of the selection, summoning, and impaneling of the jury aforesaid, and has had no opportunity to make any challenges to the same as the members thereof, because he did not know of said action, and was not at the time represented by counsel, but that he has this day learned of the aforesaid acts for the first time, and therefore immediately presents this plea. The first question is one of the jurisdic tion of this court; the government insisting that, under existing statutes, we are without authority to review the judgment in this case. By the 35th section of the Foraker act of April 12th, 1900 (31 Stat. at L. 85, chap. 191), it is provided, among other things, that writs of error and appeals to this court from the final decisions of the district court of the United States shall be allowed in all cases where "an act of Congress is brought in question, and the right claimed thereunder is denied." In this case that act was brought in question by the contention of the parties, the contention of the accused being, in substance, that, pursuant to that act of Congress, the court below, in the matter of the qualifications of grand jurors, should have been controlled by the provisions of the local law relating to jurors, in connection with the statutes of the United States relating to the organiza "Defendant says that he has been and would be greatly prejudiced by the improper and illegal selection and impaneling of such grand jury as aforesaid, as it was composed at the time aforesaid of persons disqualified to act, and who were not residents or taxpayers of Porto Rico, as required by law, and because of their unfamiliarities with tion of grand juries, and the trial the island and the conditions and circumstances, material matters in this case, and relevant thereto,-some of said jurors as aforesaid having been but a few months in the island, and temporarily sojourning herein. "In addition to W. H. Holt, Jr., and William Baun, the following gentlemen of the grand jury were American citizens: John D. H. Luce, E. L. Arnold, Henry W. Dooly, J. Ramon Latimer, foreman thereof, Charles H. Post, Frank Antonsanti; by reason of which and their supposed knowledge of such practices by grand juries in the courts of the United States, might, and, as defendant believes, did, contend the deliberations of said jury so as to induce a finding of indictment where the Porto Rican citizens thereof might not have otherwise done." The United States demurred to the plea upon the ground that the matters set forth in it, so far as they controlled or were applicable to the summoning and impaneling of a grand jury in the court below, disclosed no illegality therein, and constituted no reason why the accused should not be required to plead to the indictment. The demurrer to the plea was sustained, and the plea overruled. The defendant then demurred to the indictment, and, the demurrer being overruled, he pleaded to the jurisdiction of the court upon the ground that it had no authority to proceed at its then special term, but could only proceed at and disposition of criminal causes; and the court below deciding that, notwithstanding the Foraker act, the local act of January 31st, 1901 referred to in the plea, was not applicable to this prosecution, and that the grand jury finding the indictment, if a grand jury was necessary, was organized consistently with the laws of the United States under which the court proceeded. It thus appears that the accused claimed a right under the act of Congress and under the Revised Statutes of the United States, which, it is alleged, was denied to him in the court below. This court has, therefore, jurisdiction to inquire whether there is anything of substance in that claim. The question presented by the opposing views of the parties is not free from difficulty. By 14 of the Foraker act it is provided that the statutory laws of the United States, not locally inapplicable, except as otherwise provided, shall have the same force and effect in Porto Rico as in the United States. § 14. And by § 34 it is provided that, in addition to the ordinary jurisdiction of district courts of the United States, the district court of the United States for Porto Rico shall have jurisdiction "in all cases cognizant in the circuit courts of the United States, and shall proceed therein in the same manner as a circuit court." § 34. Turning to the statutes of the United States, we find that "jurors to serve in the 997. *467 |