Ashbaugh v. United States

delivered the opinion of the court:

While overruling the defendants* plea, the court does not wish to be understood as departing from the decision in Litchfield's. Case (32 C. Cls. R,., 585). In that case it is said that the defendant Indians from July 28, 1861, “to October 28, 1865, were engaged in actual hostilities, after which they were in amity until July 17, 1866.” If the language contained in the opinion of the court were a provision of a statute arbitrarily fixing a day, it is probable that the contention of the defendants’ counsel would be uphold; but on looking into the opinion it will be seen that there is a specific reason why the court selected the 28th of October, 1865, as fixing an event. The reason for so doing was that upon that day the treaty of that date was signed (11 Stat. L., pp. 695-747). On that day, therefore, peace existed, and with treaties, as with statutes and proclamations, courts do not inquire as to fractions of a day. When the treaty was signed, irrespective of the " hour when the parties affixed their signatures, peace prevailed, and in contemplation of law it prevailed from midnight to midnight.

Morever, though there may have been upon that day a collision between troops of the United States and Indians of the defendant tribe, it does not follow that the United States and the tribe were not in amity. Such collisions have occurred between the military forces of civilized nations after treaties of peace have been signed. The battle of New Orleans was fought after the signature of the treaty of Ghent. (December 24, 1814; 8 Stat. L., p. 218.) A treaty is the supreme law of the land, and this one is conclusive upon the court that on the 28th day of October, 1865, the United States and the defendant Indians were in amity.

In the Litchfield case the question involved in this case did not exist. The court, in general terms, was speaking of a period of hostility which was terminated by the treaty of October 28, 1865, and the language “to October 28” clearly implied “to the day of the treaty.”

The order of the court is that the defendants’ plea be overruled.