and at the trial contended that the lease, having been made during the civil war, was illegal and void, as well by the principles of international law, as by the terms of the act of Congress of 1861, c. 3, § 5, and the proclamation issued by the President under that act, (declaring all intercourse with states in rebellion unlawful). *

*

*

"The result is, that the law of nations, as judicially declared, prohibits all intercourse between citizens of the two belligerents which is inconsistent with the state of war between their countries; and that this includes any act of voluntary submission to the enemy, or receiving his protection; as well as any act or contract which tends to increase his resources; and every kind of trading or commercial dealing or intercourse, whether by transmission of money or goods, or by orders for the delivery of either, between the two countries, directly or indirectly, or through the intervention of third persons or partnerships, or by contracts in any form looking to or involving such transmission, or by insurances upon trade with or by the enemy. Beyond the principle of these cases the prohibition has not been carried by judicial decision. The more sweeping statements in the text books are taken from the dicta which we have already examined, and in none of them is any other example given than those just mentioned. At this age of the world, when all the tendencies of the law of nations are to exempt individuals and private contracts from injury or restraint in consequence of war between their governments, we are not disposed to declare such contracts unlawful as have not been heretofore adjudged to be inconsistent with a state of war.

"The trading or transmission of property or money which is prohibited by international law is from or to one of the countries at war. An alien enemy residing in this country may contract and sue like a citizen. 2. Kent, Com., 63. When a creditor, although a subject of the enemy, remains in the country of the debtor, or has a known agent there authorized to receive the amount of the debt, throughout

1 GRAY, J., then reviews the authorities on the subject at great length. The following are the principal cases reviewed :

The Hoop; The Indian Chief; Bell v. Chapman, 10 Johnson, 185; Ricord v. Bettenham, 1 W. Blackstone, 563; Hutchinson v. Brock, 11 Mass., 122; Sparenburgh v. Bannatyne, 1 B. & P., 170; Potts v. Bell; Antoine v. Morshead; Willison v. Patterson, 1 Moore, 133; Exposito v. Bowden, 7 El. & Bl. 763; Kennet v. Chambers, 14 Howard, 38; Bentzen v. Boyle, 9 Cranch, 191; Prize Cases, 2 Black., 635; The Rapid; The Julia; The Emulous; Brown v. United States; The Joseph; Jecker v. Montgomery; 18 Howard, 110; Hunger v. Abbott, 6 Wallace, 532; The Ouachita Cotton, 6 Wallace, 521; United States v. Lane, 18 Wallace, 195; McKee v. United States, 8 Wallace, 166; Griswold v. Waddington, 16 Johnson, 38; Alexander's Cotton, 2 Wallace, 404; Ex parte Boussmaker, 13 Ves., 71; Coolidge v. Inglee, 13 Mass., 26; Paton v. Nichols, 3 Wheaton, 204; Musson v. Fales, 16 Mass., 332; Capen v. Barrows, 1 Grey, 380.

the war, payment then to such creditor or his agent can in no respect be construed into a violation of the duties imposed by a state of war upon the debtor; it is not made to an enemy, in contemplation of international or municipal law; and it is no objection that the agent may possibly remit the money to his principal in the enemy's country; if he should do so, the offence would be imputable to him, and not to the person paying him the money. (Com. v. Penn., Peters, C. C., 496; Denniston v. Imbrie, 3 Wash. C. C., 396; Ward v. Smith, 7 Wall., 447; Buchanan v. Cury, 19 Johns., 137.)

"The same reasons cover an agreement made in the enemy's territory to pay money there, out of funds accruing there, and not agreed to be transmitted from within our own territory; for, as was said by the Supreme Court of New York-the last case cited, This rule is founded in public policy, which, forbids, during war, that money or other resources shall be transferred so as to aid or strengthen our enemies. The crime consists in exporting the money or property, or placing it in the power of the enemy.

"The lease now in question was made within the rebel territory where both parties were at the time, and would seem to have contemplated the continued residence of the lessee upon the demised premises throughout the term. No agreement appears to have been made as part of a contract contemporaneously with the lease, that the cotton crop should be transported, or the rent sent back, across the line between the belligerents, and no contract or communication appears to have been made across that line, relating to the lease, the delivery of possession of the premises or of the corn, or the payment of the rent of the one or the value of the other. The subsequent forwarding of the cotton by the defendant's son from Mississippi to Massachusetts may have been unlawful; but that cannot affect the validity of the agreements contained in the lease. Neither of these agreements involved or contemplated the transmission of money or property, or other communication, between the enemy's territory and our own. We are therefore unanimously of opinion that they did not contravene the law of nations or the public acts of the government, even if the plantation was within the enemy's lines; and that the plaintiff, upon the case reported, is entitled to recover the unpaid rent, and the value of the corn.'

UNITED STATES v. GROSSMAYER.

SUPREME COURT OF THE UNITED STATES, 1869.

(9 Wallace, 72.)

A merchant residing in New York, could not legally transmit orders by a third person to his agent in Georgia, during the civil war. Held, that all acts of the agent, in carrying out such orders, in dealing with the property or debts of his principal, were null and void.

This case was an appeal from the Court of Claims.

Elias Einstein, a resident of Macon, Georgia, was indebted, when the late rebellion broke out, to Grossmayer, a resident of New York, for goods sold and money lent, and while the war was in progress a correspondence on the subject was maintained through the medium. of a third person, who passed back and forth several times between Macon and New York. The communication between the parties resulted in Grossmayer requesting Einstein to remit the amount due him in money or sterling exchange, or, if that were not possible, to invest the sum in cotton and hold it for him until the close of the

war.

In pursuance of this direction-and, as it is supposed, because money or sterling exchange could not be transmitted-Einstein purchased cotton for Grossmayer, and informed him of it; Grossmayer expressing himself satisfied with the arrangement. The cotton was afterwards shipped at Grossmayer's request to one Abraham Einstein, at Savannah, who stored it there in his own name, in order to prevent its seizure by the rebel authorities. It remained in store in this manner until the capture of Savannah, in December, 1864, by the armies of the United States, when it was reported to our military forces as Grossmayer's cotton, and taken by them and sent to New York and sold.

Grossmayer now preferred a claim in the Court of Claims for the residue of the proceeds, asserting that he was within the protection of the Captured and Abandoned Property Act.

That court considering that the purchase by Elias Einstein for Grossmayer was not a violation of the war intercourse acts set forth in the preceding case, decided that he was so, and gave judgment in his favor. The United States appealed.

Judgment,-DAVIS. J. :

"Grossmayer insists that he is within the protection of the Captured and Abandoned Property Act, but it is hard to see on what ground he can base this claim for protection. It was natural that Grossmayer should desire to be paid, and creditable to Einstein to wish to discharge his obligation to him, but the same thing can be said of very many persons who were similarly situated during the war, and if all persons in this condition had been allowed to do what was done in this case it is easy to see that it would have produced great embarrassment and obstructed very materially the operations of the army. It has been found necessary, as soon as war is commenced, that business intercourse should cease between the citizens of the respective parties engaged in it, and this necessity is so great that all writers on public law agree that it is unlawful, without any express declaration of the sovereign on the subject.

"But Congress did not wish to leave any one in ignorance of the effect of war in this regard, for as early as the 13th of July, 1861, it passed a Non-intercourse Act, which prohibited all commercial intercourse between the States in insurrection and the rest of the United States. It is true the President could allow a restricted trade, if he thought proper; but, in so far as he did allow it, it had to be conducted according to regulations prescribed by the Secretary of the Treasury.

"There is no pretence, however, that this particular transaction was authorized by any one connected with the Treasury Department, and it was, therefore, not only inconsistent with the duties growing out of a state of war, but in open violation of a statute on the subject.

"A prohibition of all intercourse with an enemy during the war affects debtors and creditors on either side, equally with those who do not bear that relation to each other. We are not disposed to deny the doctrine that a resident in the territory of one of the belligerents may have, in time of war, an agent residing in the territory of the other, to whom his debtor could pay his debt in money, or deliver to him property in discharge of it, but in such a case the agency must have been created before the war began, for there is no power to appoint an agent for any purpose after hostilities have actually commenced, and to this effect are all the authorities. The reason why this cannot be done is obvious, for while the war lasts nothing which depends on commercial intercourse is permitted.

"In this case, if Einstein is to be considered as the agent of Grossmayer to buy the cotton, the act appointing him was illegal, because it was done by means of a direct communication through a messenger who was in some manner not stated in the record able to pass, during

the war, between Macon and New York. It was not necessary to make the act unlawful that Grossmayer should have communicated personally with Einstein. The business intercourse through a middleman, which resulted in establishing the agency, is equally within the condemnation of the law.

"Besides, if, as is conceded, Grossmayer was prohibited from trading directly with the enemy, how can the purchase in question be treated as lawful when it was made for him by an agent appointed after his own disability to deal at all with the insurgents was created ? "It is argued that the purchase by Einstein was ratified by Grossmayer, and that being so, the case is relieved of difficulty; but this is a mistaken view of the principle of ratification, for a transaction originally unlawful cannot be made any better by being ratified.

"In any aspect of this case, whether the relation of debtor and creditor continued, or was changed to that of principal and agent, the claimant cannot recover.

"As he was prohibited during the war from having any dealings with Einstein, it follows that nothing which both or either of them did in this case could have the effect to vest in him the title to the cotton in question.

"Not being the owner of the property he has no claim against the United States.

"The judgment of the Court of Claims is reversed, and the cause is remanded to that court with directions to enter an order

Dismissing the petition."

THE SEA LION."

SUPREME COURT OF THE UNITED STATES, 1866.

(5 Wallace, 630.)

The act of Congress of July 13, 1861, authorizing the President to license certain commercial intercourse with the States in rebellion did not contemplate the exercise of that authority by subordinate officers of the executive department without the express order of the President.

An act of Congress passed during the late rebellion (July 13th, 1861), prohibited all commercial intercourse between the inhabitants of any State which the President might declare in a state of insurrection, and the citizens of the rest of the United States; and enacted that all merchandise coming from such territory into other