on her return by an American privateer, and was condemned as lawful prize, because she was trading at an enemy's island, and the goods had acquired the character of enemy's property. The court, in delivering the opinion, said that the law of prize was part of the law of nations, and that by trading, in the prize law, was meant, not merely that signification of the term which consists in negotiation or contract, but the object and spirit of the rule were to cut off all communication or actual locomotive intercourse between individuals of the belligerents; that intercourse inconsistent with actual hostility was the offence against which the operation of the rule was directed. See also Wheaton 547, 548; 549, and the case of The Lawrence, 1 Gallison's Reports 470.

But did these strict rules, in their spirit, apply to this country at the time of the making of this deed? or is there anything to qualify the fact of a state of war?

The traitorous machinations of a comparatively few reckless, ambitious and disappointed politicians had, in a few months, thrown millions of our fellow-citizens into a rebellion, the most stupendous ever beheld in civilization. Yes, millions, by the artifice of bad men, had been cheated into a condition of separation from the Union, without any agency of their own whatever. Our Government claimed all, good and bad, as citizens bound to obey the Constitution of the United States; and the President's first proclamation enjoined this obedience, and called them back to the common allegiance. We did not treat them as foreign public enemies, except so far as we were forced to do in defence of the Union and the Constitution. The Government made exceptions of good men, and of parts of the states in rebellion, and all loyal citizens, out of the territory of the rebellion, felt a strong sympathy for those who were held against their will to submit to the new tyranny, binding them to the detested revolt. Our Government did not as to them, as the French king did in 1756, with regard to the English, enjoining all his subjects, vassals, and servants to fall upon the subjects of the king of England, and forbear all communication, commerce, and intelligence with them on pain of death." Perhaps, consistent with the laws of war, all

communication might have been forbidden by our Government; but it was not so ordered. Commerce was forbidden, by the Act of the 13th July, to be carried into effect by the President's Proclamation which was made 16th August.

stating the grounds President, says:— lawful for the Presi

The Act of Congress (5th Section), after that shall justify the proclamation of the "Then and in such case, it may and shall be dent, by proclamation, to declare that the inhabitants of such state, or any section or part thereof, where such insurrection exists, are in a state of insurrection against the United States; and thereupon all commercial intercourse by and between the same and the citizens thereof, and the citizens of the rest of the United States, shall cease and be unlawful, so long as such condition of hostility shall continue; and all goods and chattels, wares and merchandise coming from said state or section into the other parts of the United States, and all proceeding to such state or section, by land or water, shall, together with the vessel or vehicle conveying the same, or conveying persons to or from said state or section, be forfeited to the United States."

The expression "commercial intercourse" in this Act evidently means trading, trafficking, negotiating, contracting, conveying goods and chattels, &c., and this appears by the last clause quoted; for its office is to show to what the inhibition extended. Something else might come within the expression "commercial intercourse," but I think, in the Act of Congress, the specifications give the extent of its operation, and include everything meant to be affected. The inhibition is not as to persons directly, but as to the vessels or vehicles conveying persons to or from such state or section, and declares they shall be forfeited. And this shows that the whole provision had a reference to trading, &c., of some kind; and, in fact, the inhibition of persons has been left to the sound discretion of the military commanders, and has not practically been held to be within this Act or the proclamation of the President.

The making of this deed in Tennessee by persons, though disloyal, for the purpose of providing for the payment of their debts

to loyal people in Kentucky and Massachusetts, out of property and effects in Kentucky, is not, it seems to me, such commercial intercourse as comes within the meaning of the Act of Congress, nor is it prohibited by any just application we can make, under our circumstances, of the general laws of war. The prohibition by Congress shows how far it was intended, in our unhappy struggle, to apply these general rules of war, as to intercourse with an enemy.

In the Circuit Court of the United States for the Kentucky District, in the case of The United States vs. The vendee of Thomas J. Clay, who went into the army of the so-called Confederate States, as an officer, and when in Louisville on parol as a prisoner of war, taken by our army at Fort Donelson, made a deed to his brother-in-law, dated 10th June 1862, for money due before he joined the army of the insurgents, it was decided 2d December 1863, that the deed was good, and passed the title to real estate mentioned therein.

Such deeds as this, we may properly infer, were not deemed void by anything that preceded, for the Congress thought it necessary to declare by the 5th and 6th sections of the Act of 17th July 1862, that all sales, transfers, and conveyances made thereafter by such persons should be void. Had such a conveyance been void in 1861, there would have been no occasion for this provision in 1862. I think this shows the view held by the legislative department of the Government.

If an enemy within the rebel lines should order his agent in this state to pay a debt, contracted lawfully before the war, with property or money, I am not aware of anything wrong in this according to the public law of war. Goods might be seized when passing, but the appropriation of property or money already here, to the payment of debts to our people, is not only honest, but takes so much of the funds of rebels to another use, and weakens them so much. We must not pay to them, but we may receive their funds to pay debts owed us, where there is no negotiation, as in bills of exchange, &c., which might do them any good.

In this case there was nothing like the going for one's own goods

to an enemy's country, as in the English case cited, and as in the case of The Rapid. The danger there was, that on account of the cover and pretence of going for one's own, a countenance of such things would lead to an extended commerce with the enemy. There is no such danger here.

But it may be said that the plaintiff, Allen, went personally into the land of rebellion, and obtained this deed that purports to be for his protection in three thousand dollars, and therefore it is like the merchant going to an enemy's country for his own goods, and as to him the deed must be void. I cannot see that this is so. I do not know that he violated any law in going to Tennessee; and if he brought the deed of assignment with him to this state, it was not an article of commerce within the Act of Congress, or the proclamation of the President.

By the laws of war, the partnership between the grantors and the defendant, Russell, was dissolved. But he was not a surviving partner. They were not civilly dead. Their title had not been touched by the law. If the war had ceased then, and no conviction had ensued, their right of property would have been as if they had remained in Kentucky, and been supporters of the Constitution and laws. Their interest, then, in the property and means conveyed had not been forfeited, but was subject to the payment of their debts. And to enforce the trust for the benefit of creditors according to the prayer of the plaintiff, is but to do substantially what the Court of Chancery would have done on proper application, independent of this deed, though not in the same order in every respect.

The demurrer is sustained.

LEGAL MISCELLANY.

LIST OF LAW BOOKS PUBLISHED IN ENGLAND DURING THE

YEAR 1863.

AUSTIN.-Lectures on Jurisprudence; being the Sequel to The Province of Jurisprudence Determined; to which are added Rules and Fragments now first VOL. XII.-24

published from the original MSS. By J. Austin.

24s., cl.

Vols. II. and III., 8vo.,

BAKER.-The Laws relating to Burials; with Notes, Forms, and Practical Instruction. By J. Baker, Esq. 3d Ed. 12mo., 7s. 6d., cl.

BATEMAN.-Practical Treatise on the Law of Auctions. 4th Ed. By Rolla Rouse, Esq. 12mo., 10s. 6d. cl.

CHAPPELL AND SHOARD.-A Handy Book of the Law of Copyright, comprising Literary, Dramatic, and Musical Copyright, and Copyright in Engravings, Sculpture, and Works of Art; with Statutes and Forms. By F. D. Chappell and J. Shoard. 12mo., 58., cl.

and upon the Defences to Royal 8vo., 32s. cl.

CHITTY. A Treatise on the Law of Contracts, Actions thereon. 7th Ed. By J. A. Russell, Esq. COOTE AND TRISTRAM.-The Practice of the Court of Probate in Common Form Business. By H. C. Coote, Proctor, and Dr. T. H. Tristram. 4th Ed. 8vo., 21s., cl.

Cox. The Institutions of the English Government. By H. Cox, Esq. 8vo., 248., cl.

Cox.-Forms of Practical Proceedings in the Chambers of the Master of the Rolls and the Vice-Chancellors. 3d Ed., revised and enlarged. By J. Biddle. 8vo., 12s. 6d., cl.

CRIPPS.-A Practical Treatise on the Law relating to the Church and Clergy. By H. W. Cripps, Esq. 4th Ed. 8vo., 30s., cl.

DAVIDSON.-Precedents and Forms in Conveyancing. By C. Davidson, T. C. Wright, and J. Waley, Esqs. 2d Ed. Vol. IV., Royal 8vo., 28s., cl. DAY.-The Common Law Procedure Acts, and other Statutes relating to the Practice of the Superior Courts of Common Law, and the Rules of Court; with Notes. By J. C. F. S. Day, Esq. 2d Ed. Post 8vo., 15s., cl.

DEACON.-The Law and Practice of Bankruptcy; with the Statutes and General Orders. 3d Ed. By A. G. Langley, Esq. 2 Vols., Post 8vo., 40s., cl. DIXON. A Digest of Cases connected with the Law of the Farm; including the Agricultural Customs of England and Wales. By H. H. Dixon, Esq. 2d Ed. Post 8vo., 21s., cl.

DORIA AND MACRAE.-The Law and Practice in Bankruptcy under the provisions of Bankruptcy Law Consolidation Act, 1849, as amended by subsequent Statutes, 17 and 18 Vict. c. 119, and 24 and 25 Vic. c. 134, including the General Orders and Forms of Procedure. By A. A. Doria and D. C. Macrae, Esqs. Vol. II., Part II. (completing the work), 19s. 6d., bds.

FISCHEL.-The English Constitution; translated from the 2d German Ed. By R. J. Shee, Esq. 8vo., 14s., cl.

FISHER.-A Digest of all the Reported Decisions in the House of Lords, Privy Councils, Common Law, Equity, Divorce, Probate, Admiralty, Bankruptcy, and Ecclesiastical Courts, with a Selection from the Irish and Scotch Reports, References to the Statutes passed, and Rules and Orders of Court promulgated,