other hand, a person within the United States may create a trust in favor of a non-resident alien enemy by acts mortis causa for such acts though "for the benefit of" an enemy, are not a "contract, agreement or obligation" within the meaning of "trade."

An implied trust may arise in favor of an enemy out of the conduct of a person within the United States, which can be enforced after the war. Crutcher v. Hord (1868), 4 Bush (Ky.) 360; Buford v. Speed (1885), 11 Bush (Ky.) 338. In the former case it was said that a person within the jurisdiction might purchase at decretal sales real property belonging to a non-resident alien enemy for the benefit of such enemy, but subject to the government's right to confiscate. Such purchase would now be unlawful as being a "buying, dealing with or receiving" the property "for, or on account of, or on behalf of, or for the benefit of" the enemy.

Commercial communications.

(e) To have any form of business or commercial communication or intercourse with.

"To have any form of business . . . intercourse with."

The Act does not prohibit transactions outside the United States between a non-enemy (including a citizen of the United States) and an enemy, or between two enemies, and relating to any property within the United States. The prohibition of the Act, so far as trading is concerned, is directed against trade by "any person in the United States." Section 3 (a). Property within the United States is of course subject to the local jurisdiction, and American ships are subject to special rules.

Conversely, the Act does not prohibit transactions within the United States relating to property or acts in enemy territory where the transaction does not involve any communication with an enemy or is "directly or indirectly with, to, or from, or for, or on account of, or on behalf of, or for the benefit of" an enemy.

In May, 1862, after New Orleans came into the possession of the United States forces, a conveyance of real property in that city, for value, was made between persons who were at the time within the Confederate lines, and who were active supporters of the Confederate cause in the legislative and military branches. It was argued that the conveyance was inoperative and void, on the ground that as the parties were at the time "engaged in the rebellion against the United States, and were within the enemies' country," they could not lawfully transfer title to property situated within the Federal lines. "But," said the Court, "we do not think the position at

all tenable. The character of the parties as rebels or enemies did not deprive them of the right to contract with and to sell to each other. As between themselves, all the ordinary business between people of the same community in buying, selling, and exchanging property, movable and immovable, could be lawfully carried on, except in cases where it was. expressly forbidden by the United States, or where it would have been inconsistent with or have tended to weaken their authority. It was commercial intercourse and correspondence between citizens of one belligerent and those of the other, the engaging in traffic between them, which were forbidden by the laws of war and by the President's proclamation of nonintercourse. So long as the war existed, all intercourse between them inconsistent with actual hostilities was unlawful. But commercial intercourse and correspondence of the citizens of the enemy's country among themselves were neither forbidden nor interfered with, so long as they did not impair or tend to impair the supremacy of the national authority or the rights of loyal citizens. No people could long exist without exchanging commodities, and, of course, without buying, selling, and contracting. And no belligerent has ever been so imperious and arbitrary as to attempt to forbid the transaction of ordinary business by its enemies among themselves. No principle of public law and no consideration of public policy could be subserved by any edict to that effect; and its enforcement, if made, would be impossible. . . . The sale in the case at bar can only be impeached, if at all, by reason of the situation of the property within the Federal lines. And from that circumstance it could not be impeached, unless the sale, if upheld, in some way frustrated the enforcement of the right of seizure and confiscation possessed by the United States. . . . A conveyance in such case would pass the title subject to be defeated, if the Government should afterwards proceed for its condemnation. And to declare this liability was the object of the provision in the Confiscation Act, enacting that 'all sales, transfers, and conveyances' of property of certain designated parties made subject to seizure should be null and void. The invalidity there declared was limited and not absolute. It was only as against the United States that the transfers of property liable to seizure were null and void. They were not void as between private parties, or against any other party than the United States. This was held in the case of Corbett v. Nutt, reported in the 10th of Wallace. . . . This case is much stronger than that of Fairfax's Devisee v. Hunter's Lessee, reported in the 7th of Cranch, which received great consideration by this court. There a devise to an alien enemy resident in England, made during our Revolutionary war by a citizen of Virginia, and there residing at the time, was sustained, and held to vest a title in the devisee which was good until

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office found. . . . If an alien enemy can, by devise or purchase from a loyal citizen or subject, take an estate in the country of the other belligerent, and hold it until office found, there would seem to be no solid reason for refusing a like efficacy to a conveyance from one enemy to another of land similarly situated. A different doctrine would unsettle a multitude of titles passed during the war between residents of the insurrectionary territory temporarily absent therefrom whilst it was dominated by the Federal forces." Conrad v. Waples (1877), 96 U. S. 279, 24 L. ed. 721; 7 Moore, International Law Digest, section 1136.

In Kershaw v. Kelsey (1868), 100 Mass. 561, 97 Am. Dec. 124, a lease of a plantation in Mississippi made within that State during the Civil War by a citizen and resident thereof to a citizen of Massachusetts then in Mississippi, at a rent payable and paid in part in cash on taking possession of the plantation, and the rest payable out of the crops to be raised thereon, and by which the lessor agreed to receive and pay for corn then on the plantation and which was immediately delivered accordingly and used thereon, was sued on in Massachusetts. The defendant contended that the lease having been made during the Civil War was void both under the principles of international law and under the Act of Congress of July 13, 1861, and the Proclamations under that Act. The Court, per Gray, J., said: "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 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. The celebrated judgment of Sir William Scott, in the leading case of The Hoop, 1 C. Rob. 196, determined only that all trading with a public enemy, unless by permission of the sovereign, was interdicted; and that all property engaged in such trade was lawful prize of war. None of the numerous authorities there cited went beyond this. The principal reason assigned is, that in a state of war the question when and under what regulations commercial intercourse, which is a partial suspension of the war, shall be permitted, must be determined, on views of public policy, by the sovereign, who alone has the power of declaring war and peace; and not by individuals, upon their own notions of convenience, and possibly on grounds of private advantage, not reconcilable with the general interest of the state. In the case of The Indian Chief, 3 C. Rob. 22, the same principle was applied to the case of a foreign

merchant resident in the British possessions in India. And all the later cases in the same court were of trading or licenses to trade with the enemy, directly or indirectly. It is true that, in the case of The Hoop, that eminent jurist does also somewhat rely upon the consideration of the total inability to enforce any contract by an appeal to the tribunals of the one country on the part of the subjects of the other. The rule is certainly well settled that during any war, foreign or civil, an action cannot be prosecuted by an enemy, residing in the enemy's territory, but must be stayed until the return of peace, or, in the words of the old books, donec terræ sint communes. Staunf. Prerog. fol. 39. Co. Lit. 129 b. Sanderson v. Morgan, 39 N. Y. 231. Wheelan v. Cook, 29 Maryl. 1. But that rule temporarily restrains the remedy only, without denying or impairing the existence of the right; as was said by the Supreme Court of New York, while Chancellor Kent presided there, 'The present plea only bars the plaintiff, in his character of alien enemy commorant abroad, from prosecuting the suit; it does not so much as touch the merits of the action.' Bell v. Chapman, 10 John. 185. That it has nothing to do with the validity of the contract sued upon is manifest from the case of a ransom bill, which is universally admitted to be a lawful contract, and yet upon which no action can be maintained in a court of common law during the war, but may after the return of peace. Ricord v. Bettenham, 3 Burr. 1734; s. c. 1 W. Bl. 563. Anthon v. Fisher, 2 Doug. 650; s. c. 3 Doug. 178. Brandon v. Nesbitt, 6 T. R. 28. 1 Kent Com. (6th ed.) 107." Accord: Shaw v. Carlile (1872), 9 Heisk. (Tenn.) 594.

Charles S. Morehead, a citizen of Kentucky, owned two plantations in Mississippi. In the spring of 1861, when the Civil War began, he was on these plantations, but in the following May or June, when a long struggle seemed inevitable, he placed one in charge of his son and the other in charge of an overseer and returned to Kentucky. It did not appear that afterwards during the continuance of the war he had any communication with either of those persons. In April, 1862, being then in Kentucky, he sold to another citizen of the State, in payment of indebtedness, the cotton to be grown on the plantations during that year; but there was no agreement to transport and deliver it across the lines separating the insurrectionary States from those that adhered to the Union. The year's crop, however, or the greater part of it, was afterwards captured and sold by the United States forces and the proceeds paid over or accounted for to the Treasury.

Field, J., delivering the opinion of the Court, said: "Though at the time the sale, or assignment, as it is termed in the Act of Congress, was made of the cotton on the plantations in Mississippi, or to be raised thereon during

the year 1862, the late Civil War was flagrant, there was no rule of law arising from the existence of hostilities between the different sections of the country which in any respect impaired the validity of the transaction. Both parties were then residents and citizens of Kentucky, and no agreement was made for the transportation and delivery of the cotton across the lines separating the insurrectionary States from those which maintained their loyalty and adhered to the Union. Morehead, the owner, was in the spring of 1861, at the commencement of the war, on the plantations in Mississippi; and in May or June following, when a prolonged struggle seemed inevitable he placed one of them in charge of his son and the other in charge of an overseer, and returned to Kentucky. It does not appear that ever afterwards during the continuance of the war he had any communication with either. They superintended the plantations, and in 1862 raised a crop of cotton thereon, the greater part of which, if not the whole, was afterwards scized by the forces of the United States, placed in the custody of an assistant quartermaster of the army, sold by him, and the proceeds paid over or accounted for to the Treasury of the United States. . . . The property in this case (Conrad v. Waples) was real estate; but we do not perceive how that fact would alter the validity of a transaction, if it could be affected by the character of the parties. If residents of the enemy's country may contract for property situated within it, there would seem to be no objection to similar transactions by persons residing outside of the Confederate lines and adhering to the national government, so long as no intercourse or connection is kept up with the inhabitants of the enemy's country. As stated in the case from which we have cited, it was commercial intercourse and correspondence between citizens of one belligerent and the other, and the engagement in traffic between them, leading to the transmission of money or property from one belligerent country to the other, which was forbidden. There was, therefore, nothing in the sale of the cotton on the plantations, or of cotton to be raised thereon, there being no agreement respecting its movement across the border of the contending sections, which brought the transaction within the prohibitions of any rule of international law or the proclamations of the President of the United States in 1861." Briggs v. United States (1891), 143 U. S. 346, 33 L. ed. 180.

"The fact that a mortgage was made in enemy territory to a loyal citizen of the United States does not necessarily imply unlawful intercourse between the parties contrary to the Proclamation of the President of the date of August 16, 1861, 12 Stat. 1262, under the authority of the Act of July 13, 1861, c. 3, sect. 5, 12 Stat. 257. That transactions within Confederate lines affecting loyal citizens outside were not all unlawful was