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instalment of rent, took possession of the plantation and corn, used the corn on the plantation, provided it with supplies to the amount of about five thousand dollars, and planted and sowed it, but early in March was driven away by rebel soldiers and never returned to the plantation, except once in April following, after which he came back to Massachusetts. The plaintiff continued to reside on the plantation, raised a crop of cotton there, and delivered it in Mississippi to the defendant's son, by whom it was forwarded in the autumn of the same year to the defendant; and he sold it and retained the profits amounting to nearly ten thousand dollars.

The plaintiff sues for the unpaid instalment of rent and the value of the corn. The claims made in the other counts of the declaration have been negatived by the special findings of the jury.

The defendant, in his answer, denied all the plaintiff's allegations; 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 proclamations issued by the President under that act, declaring "all commercial intercourse by and between" the state of Mississippi and other states in which the insurrection existed “and the citizens thereof, and the citizens of the rest of the United States," to be unlawful so long as such condition of hostility should continue, and that "all goods and chattels, wares and merchandise," coming from such states into other parts of the United States, or proceeding to such states by land or water, together with the vessel or vehicle conveying them, or conveying persons to or from such states, without the license of the President, should be forfeited to the United States. 12 U. S. Sts. at Large, 257, 1262; 13 Id. 731.

The judge presiding at the trial ruled that the contracts sued on were legal, and the jury having returned a verdict for the plaintiff, the question of the correctness of this ruling is reported for our decision; the parties agreeing that, if the ruling was correct, the case shall be sent to an assessor; but if incorrect, judgment shall be entered for the defendant.

This case presents a very interesting question, requiring for its decision a consideration of fundamental principles of international law. It is universally admitted that the law of nations prohibits all commercial intercourse between belligerents, without a license from the sovereign. Some dicta of eminent judges and learned commentators would extend this prohibition to all contracts whatever. In a matter of such grave importance, the safest way of arriving at a right result will be to examine with care the principal adjudications upon the subject, most of which were cited in the argument.

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24 The cases to which the learned justice referred were the following: The Hoop, 1 C. Rob. 196 (1799); The Indian Chief, 3 C. Rob. 22 (1800); Sanderson v. Morgan, 39 N. Y. 231 (1868); Mayor, etc., of City of New York v.

The result is, that the law of nations, as judicially declared, prohib its 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 receiv ing 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 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

Erben, 38 N. Y. 308 (1868); Whelan v. Cook, 29 Md. 1 (1868); Bell v. Chapman, 10 Johns. (N. Y.) 183 (1813); Ricord v. Bettenham, 3 Burr., 1734; Id., 1 W. Bl. 563 (1765); Anthon v. Fisher, 2 Doug. 650, 3 Doug. 178 (1782); Brandon v. Nesbitt, 6 Term R. 23 (1794); Hutchinson v. Brock, 11 Mass. 119, 122 (1814); Sparenburgh v. Bannatyne, 1 Bos. & P. 163 (1797); McConnell v. Hector, 3 Bos. & P. 113 (1802); West v. Sutton, 2 Ld. Raym. 853, 1 Salk. 2, Holt, 3 (1703); Vanbrynen v. Wilson, 9 East, 321 (1808); Buckley v. Lyttle. 10 Johns. (N. Y.) 117 (1813); Owens v. Hanney, 9 Cranch, 180, 3 L. Ed. 697 (1815); Potts v. Bell, S Term R. 548 (1800); Antoine v. Morshead, 6 Taunt. 237 (1815); Id., 1 Marsh. 558 (1815); Willison v. Patteson, 1 Moore, 133 (1817); Id., 7 Taunt. 440 (1817); Esposito v. Bowden, 7 El. & Bl. 763 (1857); Hannay v. Eve, 3 Cranch, 242, 2 L. Ed. 427 (1806); Kennett v. Chambers, 14 How. 38, 14 L. Ed. 316 (1852); Thirty Hogsheads of Sugar v. Boyle, 9 Cranch, 191, 3 L. Ed. 701 (1815); Prize Cases, 2 Black, 635, 17 L. Ed. 459 (1862); The Rapid, 1 Gall. 295, Fed. Cas. No. 11,576 (1812); The Julia, 1 Gall. 594, 601-604, Fed. Cas. No. 7,575 (1813); The Emulous, 1 Gall. 563, 571, Fed. Cas. No. 4,479 (1813); Brown v. United States, 8 Cranch, 110, 3 L. Ed. 504 (1814); The Rapid, 8 Cranch, 155, 3 L. Ed. 520 (1814); The Joseph, 1 Gall. 545, Fed. Cas. No. 7,533 (1813); Id., 8 Cranch, 451, 3 L. Ed. 621 (1814); Scholefield v. Eichelberger, 7 Pet. 586, 8 L. Ed. 793 (1833); Jecker v. Montgomery, 18 How. 110, 15 L. Ed. 311 (1855); Hanger v. Abbott, 6 Wall. 532, 18 L. Ed. 939 (1867); The Ouachita Cotton, 6 Wall. 521, 18 L. Ed. 935 (1867); United States v. Lane, 8 Wall. 185, 19 L. Ed. 445 (1868); McKee v. United States, 8 Wall. 163, 19 L. Ed. 329 (1868); Griswold v. Waddington, 16 Johns. (N. Y.) 438 (1819); Clarke v. Morey, 10 Johns. (N. Y.) 69, 71, 72 (1813); Mrs. Alexander's Cotton, 2 Wall. 404, 17 L. Ed. 915 (1864); Ex parte Boussmaker, 13 Ves. Jr. 71 (1806); Coolidge v. Inglee, 13. Mass. 26 (1816); Patton v. Nicholson, 3 Wheat. 204, 4 L. Ed. 371 (1818); Capen v. Barrows, 1 Gray (Mass.) 376, 380 (1854); Musson v. Fales, 16 Mass. 332 (1820).

enemy, remains in the country of the debtor, or has a known agent there authorized to receive the amount of the debt, throughout the war, payment there 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. Conn v. Penn, Peters, C. C. 496, Fed. Cas. No. 3,104; Denniston v. Imbrie, 3 Wash. C. C. 396, Fed. Cas. No. 3,802; Ward v. Smith, 7 Wall. 447, 19 L. Ed. 207; Buchanan v. Curry, 19 Johns. 137, 10 Am. Dec. 200. 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, in the case last cited, "The 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."

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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; the rent was in part paid on the spot, and the residue, now sued for, was to be paid out of the produce of the land; and the corn, the value of which is sought to be recovered in this action, was delivered and used thereon. No agreement appears to have been made as part of or 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. *

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25 It may not be without interest to note that a friendly letter written by Mr. Caleb Cushing to Mr. Jefferson Davis, after outbreak of the Civil War, SCOTT INT.LAW-42

both having been members of President Pierce's Cabinet, prevented Cushing's confirmation as Chief Justice of the United States in 1874.

In a special message dated January 13, 1874, to the Senate of the United States, President Grant said:

"Since nominating Hon. Caleb Cushing for Chief Justice of the Supreme Court of the United States, information has reached me which induces me to withdraw him from nomination as the highest judicial officer of the government, and I do therefore hereby withdraw said nomination." 7 Richardson's Messages and Papers of the Presidents, 1789-1897, 259 (1898).

The London Gazette of December 13, 1921, No. 32547, p. 10123, contains the following announcement:

"British Nationality and Status of Aliens Acts, 1914 and 1918.

"In the Matter of Sir Edgar Speyer, Bt.

"Revocation of Certificate of Naturalization.

"Whereas, I am satisfied, as the result of an enquiry conducted by the Certificates of Naturalization (Revocation) Committee, that Sir Edgar Speyer, Baronet, a member of His Majesty's Most Honourable Privy Council, to whom a certificate of naturalization number A 7015 was granted on the 29th February, 1892, (1) has shown himself by act and speech to be disaffected and disloyal to His Majesty; and (2) has, during the war in which His Majesty was engaged, unlawfully communicated with subjects of an enemy state and associated with a business which was to his knowledge carried on in such manner as to assist the enemy in such war;*

"And whereas, I am satisfied that the continuance of the said certificate is not conducive to the public good:

"Now, therefore, by this order, made in pursuance of the powers conferred on me by section 7 of the British Nationality and Status of Aliens Act, 1914, I revoke the said certificate; and I direct such revocation to have effect from the date hereof; and I further order the said certificate to be given up and to be cancelled; and I further direct that Leonora Speyer, the wife of the said Sir Edgar Speyer, and Pamela Speyer, Leonora Speyer, and Vivien Clare Speyer, the minor children of the said Sir Edgar Speyer, shall cease to be British subjects. Edward Shortt,

"One of His Majesty's Principal Secretaries of State.

"Whitehall, 1st December, 1921.

*Note. This finding does not involve any reflection upon any partner in the firm of Speyer Brothers, London, other than Sir Edgar Speyer.

"At the Court at Buckingham Palace, the 13th day of December, 1921. "Present: The King's Most Excellent Majesty in Council.

"It is this day ordered by His Majesty in Council that the name of Sir Edgar Speyer, Bt., be struck out of the list of His Majesty's Most Honourable Privy Council. "Almeric FitzRoy."

SCOTT INT.LAW

CHAPTER VIII

DOMICILE

THE INDIAN CHIEF.

(High Court of Admiralty, 1801. 3 C. Rob. 12.)

Sir W. SCOTT.1 This is the case of a ship seized in the port of Cowes, where she came to receive orders respecting the delivery of a cargo taken in at Batavia, with a professed original intention of proceeding to Hamburg; but on coming into this country for particular orders, the ship and cargo were seized in port. It does not appear clear to the court that it might not be a cargo intended to be delivered in this country, as many such cargoes have been, under the Dutch property act. I mention this to meet an observation that has been thrown out, "that it is doubtful whether the ship might not be confiscable on the ground of being a neutral ship coming from a colony of the enemy, not to her own ports or to the ports of this country." I cannot assume it as a demonstrated fact in the case, that the cargo was to be delivered at Hamburg. The vessel sailed in 1795, and as an American ship with an American pass, and all American documents; but nevertheless if the owner really resided here, such papers could not protect his vessel. If the owner was resident in England, and the voyage such as an English merchant could not engage in, an American residing here, and carrying on trade, could not protect his ship merely by putting American documents on board. His interest. must stand or fall according to the determination which the court shall make on the national character of such a person.

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There are two positions which are not to be controverted; that Mr. Johnson is an American generally by birth, which is the circumstance that first impresses itself on the mind of the court; and also by the part which he took on the breaking out of the American war. He came hither when both countries were open to him; but on the breaking out of hostilities he made his election which country he would adhere to, and in consequence thereof went to France. As to the doubt that has been suggested whether he would be deemed an American, not having been personally there at the time of the declaration of the independence of that country, I think that is sufficiently cleared up, by the circumstance of his being adopted as such by the act of the American government, declaring him and his family to be American subjects, and by the official character which that government has intrusted to 1 Statement of the case is omitted.

2 January 15, 1785.

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