concurring:
I concur in the legal propositions of the opinion of the Chief Justice, but do not agree altogether in the premises upon which it rests. I do not regard the conduct of Mr. Atocha, as described by himself, altogether above suspicion or reproach, and I am inclined to think that as between ordinary belligerents his conduct would have warranted his summary dismissal by military authority before the restoration of the judicial tribunals. But in this case Santa Anna had been the head of the constitutional government of Mexico, the officer with whom foreigners would be most likely to have official relations. He had been recognized by the United States as the President of Mexico, and he was never deposed or suspended by any constitutional or legal decree. The so-called government opposed to him was a mere revolutionary faction, and it cannot be that, whenever any such faction breaks forth in Mexico, all foreigners are bound to break off all relations, personal and official, with the existing government. Furthermore, the part of Mexico in which Mr. Atocha happened to be at the time of the revolution was not under the control of the revolutionary government. Therefore he owed to it no temporary allegiance, and, on the contrary, owed allegiance to Santa Anna as long as Santa Anna’s authority lasted, and his case was one entitled, equitably as well as legally, to careful investigation at the hands of the new government. But, after the revolt grew into the magnitude of civil war, it was his duty, as a neutral, to abstain from giving aid or comfort to either party. Undoubtedly his remaining in the camp of Santa Anna was evidence prima facie of his complicity in the civil war, and would have justified a military order for his expulsion. But such an order would have been, operative only during the continuance *440of the state of war. The decree of banishment, on the contrary, was penal in its nature and perpetual in its effect. Besting solely upon the arbitrary will of the executive branch of the government, at a time when war had ceased and civil authority was in undisturbed control, it was an unjustifiable act and in violation of the treaty. With this qualification, I agree in the opinion of the court.