forces of the United States, and to call into the actual service of the United States the militia of the several States to such extent as may be necessary to carry this act into effect."

66

The following instructions are issued for your guidance:

"First. Clearance will be refused to any vessel for a port or place blockaded by the United States. (The President, on April 25th, proclaimed a blockade on the north coast of Cuba, including ports on said coast between Cardenas and Bahia Honda and the port of Cienfuegos on the south coast of Cuba.)

"Second. Clearance will be refused to any vessel carrying goods which are contraband of war for any Spanish port.

"Third. Clearance will be refused to any vessel carrying coal for any Spanish port.

"Fourth. Clearance will be refused to any American vessel for any Spanish port.

"Fifth. Up to and including May 21, 1898, clearance will be granted to any Spanish merchant vessel now in any port or place of the United States for any foreign port, except a port blockaded by the United States, provided that such vessel shall not have on board any officer in the military or naval service of Spain, or any coal (except such as may be necessary for the voyage), or any other article prohibited or contraband of war, or any dispatch of or to the Spanish Government. Collectors will issue a certificate to any such vessel on clearance, reciting that said vessel has complied with the provisions of the proclamation of the President of the United States, signed April 26, 1898, and by virtue of that proclamation is entitled to continue her voyage if met at sea by any United States ship, except to a blockaded port. To the certificate shall be attached a copy of the proclamation aforesaid.

"Clearance in ballast will be granted to any Spanish merchant vessel which, prior to April 21, 1898, shall have sailed from any for eign port bound for any port or place in the United States, as soon as her cargo is discharged, for any foreign port, except a port blockaded by the United States, provided such vessel shall not have on board any officer in the military or naval service of Spain, or any dispatch of or to the Spanish Government. Collectors will issue a certificate to any such vessel on clearance, reciting that said vessel has complied with the provisions of the proclamation of the President of the United States, signed April 26, 1898, and by virtue of that proclamation is entitled to continue on her voyage if met at sea by a United States ship, except to a blockaded port. To the certificate shall be attached a copy of the proclamation aforesaid.

"Sixth. Clearance will be granted to any American or neutral vessel destined for a neutral port, with a cargo also destined for a neu

tral port, without regard to the kind of cargo, on compliance with the provisions of law.

"Where officers of customs have reason to believe that coal or articles considered contraband of war are destined for the use of enemies of the United States, clearance will be withheld until a report has been forwarded to, and instructions issued by the Department.

"Seventh. Clearance will be issued in all other cases in compliance with the provisions of law.

"Eighth. Collectors in doubt in any particular application for clearance will telegraph promptly the facts to the Department and withhold clearance until instructed.

Ninth. The Department declines to give general advice to masters and owners of vessels, shippers, consignees, etc. Any specific case requiring action by the Department must be submitted by those concerned to the proper officer of the customs, who, if in doubt, will communicate with the Department and await instructions before taking action."

Circular of the Acting Secretary of the Treasury to collectors of customs,
April 27, 1898, For. Rel. 1898, 1172.

"It has always been the aim of this Government, since the days of Franklin, to promote the increase and diffusion of scientific knowledge and likewise the aim to shield peaceful pursuits and the progress of art and science as far as possible from the evil effects of war.

In obedience to this policy and in the absence of special reasons to the contrary, I can perceive no cause for changing the conduct of the Smithsonian Institution in regard to sending scientific papers. and journals abroad and even to Spain and her colonies. Owing, however, to the present state of hostilities it would of course be prudent that some care be taken as to the nature of the published material which is sent to Spain and her colonies at present, and, that knowledge and information relative to new scientific discoveries, or advances in military and naval warfare and kindred subjects, should not be furnished."

Mr. Adee, Act. Sec. of State, to Mr. Langley, Sec. of Smithsonian Institution, April 27, 1898, 228 MS. Dom. Let. 52.

On the ground that hostilities between nations suspend intercourse and deprive citizens of the hostile nations of rights of an international character previously enjoyed," it was advised that so long as a state of war existed between the United States and Spain, Spanish subjects would have no right to the privileges of copyright conferred upon Spanish citizens by proclamation prior to the declaration of war:" but that, when a treaty of peace should have ben concluded, it would, if the treaty was silent on the subject," be

competent for the United States, through its executive officers, to resume the exercise of such rights and privileges as previously existed and have not been definitely declared terminated," and would be "entirely proper for the Librarian of Congress to admit Spanish subjects after the conclusion and ratification of the treaty to the same copyright privileges that they enjoyed prior to the declaration of war."

Griggs, At. Gen., Dec. 2, 1898, 22 Op. 268.

2. CONTRACTS.

(1) LIMITATIONS ON THE POWER TO CONTRACT.

§ 1136.

The citizens of one belligerent state are incapable of contracting with the citizens of the other belligerent state.

Scholefield . Eichelberger, 7 Pet. 586.

During the occupation of New Orleans by the Federal forces during the rebellion, a loyal citizen of that place, describing himself as the agent of a certain planter, who was an enemy, residing on a plantation in the rebellious region, agreed to sell to a British subject, domiciled in New Orleans, a crop belonging to the said planter, and described as his (the planter's) property. It was ruled that the sale was void.

It appeared that the loyal citizen had, prior to the war, made advances to the planter, and it was argued that he had a lien on the property and a power to sell it for the repayment of the advances, and that the sale ought to be regarded as his, and not as a sale by the planter. The court held, however, that the real parties to the transaction were the vendee and a public enemy, at the same time observing that there was nothing in the case inconsistent with the doctrine that a resident in the territory of one belligerent may have in times of war an agent residing in the territory of the other belligerent, to whom his debtor may pay a debt, or deliver property in discharge of it, such payments or deliveries involving no intercourse between

enemies.

Montgomery v. United States, 15 Wall. 395.

The fact that seven months after a ten years' lease was made, a "general order" from the military department of Louisiana, forbade the several bureaus of the municipal government of the city, created by military authority, from disposing of any of the city property for a term extending beyond a period when the regular civil government

of the city might be established, was held not to have invalidated the lease.

New Orleans v. Steamboat Company, 20 Wall. 387.

In February, 1864, a citizen of Massachusetts, residing in Mississippi, took a lease for one year of a cotton plantation in that State, agreeing to pay a rent of $10,000, half in cash and half "out of the first part of the cotton crop, which is to be fitted for market in reasonable time." Whether the lessee went to Mississippi before or after the beginning of the war did not appear. He paid the first instalment of rent, and took possession of the plantation and sowed the crops, but early in March, 1864, was driven away by Confederate soldiers and soon afterwards returned to Massachusetts, where he remained. The lessor then resumed charge of the plantation and raised a crop of cotton, which he delivered in Mississippi to the lessee's son, by whom it was sent in the autumn of 1864 to the lessee, who sold it and retained the profits, amounting to nearly $10,000. After the war the lessor sued the lessee in Massachusetts for the unpaid installment of rent. The lessee contended that, as the lease was made during the civil war, it was, by virtue of the act of 1861 and the President's proclamation thereunder, illegal and void. The court unanimously held, Gray, J., delivering the opinion, that the law of nations prohibited all intercourse between citizens of the two belligerents which was "inconsistent with the state of war;" that this included "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 order 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;" but that "beyond the principle of these cases the prohibition has not been carried by judicial decision." The court accordingly held that the contract in question, made between persons both at the time within the Confederate territory and to be performed there, was legal, and that, although the forwarding of the cotton by the lessee's son to Massachusetts may have been unlawful, this could not affect the validity of the agreements contained in the lease, which neither involved nor contemplated the transmission of money or property or other communication between the belligerent territories.

Kershaw r. Kelsey (1868), 100 Mass. 561.

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 would 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