residue to him on his coming of age, or, should he die in infancy, then to pay it to D. Pending the settlement of A.'s estate in Illinois, B. died; whereupon the Supreme Court of New York, which State was the domicile of B. and C., appointed E. trustee in B.'s place to execute the trust created by A.'s will in favor of C. E. received the fund from A.'s executor, converted it into money, removed to Connecticut, and there died; whereupon the same court in New York appointed the plaintiff trustee to execute the trust created by A.'s will in favor of C., and he brought the present action of account against E.'s administrator. Held, in rendering judgment for the defendant, that the administrator was not liable to any one in an action at law, cases of this nature, respecting trusts, being exclusively cognizable in equity; that he would not be liable to the plaintiff, even in equity, since the trust was an indivisible one, while the plaintiff appeared only as the trustee of C., without reference to the rights of the remainder-man; that, even were the plaintiff clothed by his New York appointment with the full trust, in favor of all the parties in interest, or were he to be considered as having been thereby constituted C.'s guardian, he could maintain no action in the courts of Connecticut, since his title would be derived merely from the act of the law as administered in a foreign State, which would put him in no better position than a foreign administrator; and that the proper course to recover the fund was, having first proved the will in New York, to have a trustee appointed there to execute all its trusts regarding the fund; next to prove the will in the Court of Probate for the district in which E. was domiciled when he died, and then apply to the proper court in Connecticut to appoint the New York trustee a trustee of the same trust under the laws of Connecticut, which being done, he could recover the fund by a bill in equity, and remove it to New York.

Semmes, Administrator, v. City Fire Ins. Co. The defendants issued a policy of insurance against fire to the plaintiff's intestate on buildings in Mississippi. Among the conditions of the policy were, that no suit on it should be brought before sixty days after proof of the loss had been furnished to the defendants, nor more than one year after the date of the loss. A total loss occurred on Jan. 5, 1861, and proof of loss was duly furnished to the defendants on Feb. 11, 1861. The amount of the policy being unpaid, the plaintiff, as administrator, sued the defendants. The suit was begun Oct. 31, 1866. The case was tried before Shipman, J., without a jury. There were other questions in the case, but the decision turned on the point whether the suit was brought in time. The court held that, if not before, at least from Aug. 16, 1861, when the President, in pursuance of the Act of Congress of July 13, 1861, by proclamation, formally declared the inhabitants of certain States, including Mississippi, in insurrection, and prohibited all commercial intercourse between them and the other parts of the United States, the right to sue on this contract was suspended, and the assured was under a disability to sue. It therefore became essential to determine whether this disability still existed, and, if it did not exist, when it was removed. The plaintiff contended that this disability was removed and the war ended on the 2d of April, 1866, the date of the President's proclamation that war was at an end, and that it did not end before that date. The defendants contended, on the other hand, that the war ended, so far as the interdiction of commercial intercourse went, on June 13, 1865, when the President by proclamation appointed a provisional

governor for Mississippi, and directed the United States courts to be held in the State.

"

"Now, it must be remembered, that though this was a war between belligerents, attended while it continued by those legal consequences which public law always attaches to all legitimate warfare, yet it was a civil war in which the revolted party was defeated, and its organization as a de facto government under the name of the Confederate States of America, politically annihilated. No treaty of peace in the ordinary sense of that term could be negotiated, as but one of the parties which had waged the war was in existence as a treaty-making power at its close. Therefore no such treaty has drawn the line where the war ended, and suspended contracts revived. We must, therefore, look to the acts of the only surviving party to ascertain when those disabilities, legally imposed by the state of war, ceased. It is hardly necessary for me to say that the principle here stated lends no support to the doctrine put forth in some quarters, and which that distinguished jurist, Mr. Justice Sprague, characterized as a grave and dangerous error," — that the suppression of the Rebellion conferred upon the United States the rights of conquest, -the right to treat the States included in the Rebellion as foreign territory acquired by arms, and permanently divest them and their inhabitants of all political privileges. That notion has nothing to do with the point now under consideration. The United States, in suppressing the Rebellion, destroyed the political organization known as the Confederate States, and not the individual States as political communities. But though the States remained after the contest ended, the belligerent power known as the Confederate States which had represented them in the war, disappeared at its close. Neither of the States which remained had the power, or attempted, to negotiate a treaty of peace with the United States. In determining, therefore, when the rights, suspended by the war, revived, we must look to the action of the only power in existence which could effectually deal with that subject. This power was the Government of the United States.

"It is a settled rule with the courts of the United States, in ascertaining whether or not war exists, to look to the action of those departments of the government to which that subject is confided by the Constitution. Courts never inquire, when investigating questions of this character, when active hostilities ceased. The termination of war, and the establishment of the relations of peace, are political acts, to be performed exclusively by the departments of the government to which political powers and duties are intrusted. The action of these departments, when within the authority conferred by the Constitution, is conclusive and binding on the courts as well as citizens. When war has existed between the United States and a foreign country, its termination is easily ascertained by a reference to the treaty of peace which follows it, and which is consummated by the President acting by and with the advice and consent of two-thirds of the Senate. As no such treaty did, or could, mark the close of this civil war, we must look to the action of the President or Congress, or both, and from that action ascertain when the war ended, and when the legal consequences which flowed from it ceased to act in any given case.

"I have already shown that by the rules of public law universally recognized among civilized nations, as well as by the decisions of our own courts, the existence of this war suspended all contracts between the citizens of the respective belligerents, entered into before it commenced. It rendered for the time being, all commercial intercourse between the citizens of the two sections unlawful, and converted them into enemies. But in addition to this, Congress passed an act July 13, 1861, authorizing the President in certain cases, by proclamation to declare the inhabitants

of a State in insurrection against the United States, whereupon all commercial intercourse by and between the same and the citizens thereof and the citizens of the rest of the United States should become unlawful. In pursuance of this statute the President, on the 16th of August, 1861, issued his proclamation declaring the inhabitants of certain States, including Mississippi, in insurrection against the United States. By force of this proclamation, then, and the statute authorizing it, as well as by the legal effect of the war then existing, all pre-existing contracts between the people of the respective belligerents, including the right to enforce them by judicial proceedings, were thenceforth suspended. In progress of time hostilities ceased, and the Executive Department of the United States commenced a series of acts recognizing a change in the relations of the Government towards the inhabitants of the States lately in rebellion. May 22, 1865, the President issued a proclamation raising the blockade of most of the closed ports, and removing all restrictions upon trade heretofore imposed in the territory of the United States east of the Mississippi River, save those relating to contraband of war, to the reservation of the rights of the United States to property purchased in the territory of an enemy, and to the twenty-five per cent upon purchases of cotton.' The same proclamation declared that all provisions of the Internal Revenue Law should be carried into effect by the proper officers.

"May 29, 1865, the President proclaimed amnesty and pardon to all persons in the late revolted States, except certain specified classes, with restoration of all rights of property except slaves, and in cases where legal proceedings had been commenced for the confiscation of property of persons engaged in rebellion, on condition that they should take and subscribe a certain oath.

"On the same day he issued a proclamation appointing a Provisional Governor for North Carolina, and prescribing his duty and authority.

'June 13, 1865, he issued a similar proclamation relating to Mississippi.

·

"On the same day he issued a proclamation appointing a Provisional Governor over Tennessee, and declaring, among other things, that all restrictions upon internal, domestic, and coastwise intercourse and trade, and upon the removal of the products of States heretofore declared in insurrection, reserving and excepting only those relating to contraband of war, as hereinafter recited, and also those which relate to the reservation of rights of the United States to property purchased in the territory of an enemy, heretofore imposed on the territory of the United States east of the Mississippi River, are annulled, and I do hereby direct that they be forthwith removed.' The other provisions of this proclamation it is not necessary to notice here.

"April 2, 1866, the President issued a proclamation formally declaring the insurrection that had existed in certain States, including Mississippi, at an end, and to be thenceforth so regarded.

"It should be remarked that there was no executive declaration that the insurrection was ended, before that of April 2, 1866, in any State except Tennessee. On the 13th of June, 1865, he did, in the proclamation already cited, declare it terminated in the last-named State. In a proclamation of the same date relating to Mississippi, and in the one of May 29, 1865, relating to North Carolina, he spoke of the armed forces of the Rebellion as having been 'almost entirely overcome.'

"We must now inquire into the legal character of the proclamations of the President restoring commercial intercourse to and with the States which had been engaged in the Rebellion, and the rest of the United States. And, first, as to his authority to issue such proclamations. I think there can be no doubt on that point. The Supreme Court of the United States recognized the power of the President to, in effect, declare the inhabitants of the disaffected States in a state of insurrection as early as April 19, 1861, when he set on foot the blockade of certain ports, including those in Mississippi 12

VOL. IV.

(The Prize Cases, 2 Black, 635, 670). In the opinion in these cases, Mr. Justice Grier, speaking for a majority of the court, says, 'Whether the President, in fulfilling his duties as commander-in-chief, in suppressing an insurrection, has met with such armed hostile resistance, and a civil war of such alarming proportions, as will compel him to accord to them the character of belligerents, is a question to be decided by him; and this court must be governed by the decisions and acts of the political department of the government to which this power was intrusted. He must determine what degree of force the crisis demands. The proclamation of blockade is itself official and conclusive evidence to the court that a state of war existed which demanded and authorized a recourse to such a measure, under the peculiar circumstances of the case.' There had been no declaration of war. Congress can alone declare war; but the court held in the same cases that that body could not declare war against a State, or any number of States, by virtue of any clause in the Constitution. It also held that the President had no power to declare or initiate a war either against a foreign nation or a domestic State. It, however, distinctly decided that the President could, and did, recognize a state of war as actually existing, and that the courts were bound to accept such recognition of the fact as conclusive. Of course they must recognize the legal consequences which flow from the state of war. It would seem to follow that if the President has the power to recognize a state of war as an existing fact, and that this recognition is binding on the courts, he must equally have the power to recognize a state of peace as an existing fact, and that the courts are equally bound by such recognition. Especially would this seem to be the case in this civil war, where no formal treaty of peace could mark the line where war ended and peace commenced, and where there was no declaration of the legislature inconsistent with the proclamation of the Executive.

"But whether this is the true doctrine or not, it must be remembered that the Act of Congress of July 13, 1861, authorized the President to declare certain States in insurrection, whereupon all commercial intercourse was to become unlawful. On the 16th of August following he issued such a proclamation. From that time forward the interdiction of commercial intercourse had the double sanction of public law and a special act of Congress operating from the date of the proclamation. Now, it may be said with some force, that inasmuch as commercial intercourse became unlawful under this act of Congress, ipso facto, on the declaration of the President of the fact of insurrection, it must have continued unlawful until the insurrection was by him, or Congress, declared ended; and that, therefore, he could not legalize free intercourse between the citizens of the two sections, without first declaring the Rebellion suppressed. But this would be a very narrow and technical view to take of a great public question, relating to an anomalous condition of public affairs, and bearing upon interests of infinite diversity and great magnitude. The Act of July 13, 1861, by its express terms, was to be operative as an interdiction of intercourse, only through a proclamation of the President. Congress left it to his discretion to put the interdiction in force. I think, by fair implication, it left with him the power to withdraw it. There were reasons of the highest public import why this power should remain with him. The war had commenced during a recess of Congress. It was necessary for the President to act promptly, and he called for troops, and set on foot a blockade some time before Congress could assemble. Hostilities might cease, and the war be substantially terminated, also, during a recess of Congress, when prompt action by the President might be of the highest importance both to our foreign and domestic commerce. This power of the Executive to restore pacific intercourse seems to have been practically conceded without dissent from any quarter. Neither Congress, nor the Executive, nor the people, have acted upon the assumption that intercourse between the people of the two sections in private civil affairs has been unlawful since June 13, 1865. On the contrary, by

the common consent of all departments of the government, such intercourse was substantially free and unrestrained after that date as well as after the 2d of April, 1866. Business began to seek its old channels; new contracts were made; old ones litigated and enforced in the courts of both sections, and money invested at the South in various enterprises. No doubt would ever have arisen as to the validity of the President's proclamation removing all restrictions upon ordinary pacific intercourse between the people, but for the subsequent struggle between Congress and the Executive Department as to the political status of the Southern States. But that controversy has no proper relation to the question now under consideration. Congress has never, even by implication, declared commercial and pacific intercourse of any kind unlawful since the President assumed to remove the restriction, June 13, 1865. On the contrary, its silence on this subject, when legislating on the purely political questions involved, in what is called 'Reconstruction,' supports the inference that the ordinary civil pursuits of the people, and all the rights incident to them, including the right to free intercourse between the citizens of both sections, and the right to resort to legal civil remedies, were considered by Congress itself as no longer under the ban of war. I am, therefore, satisfied that the authority of the President to issue the proclamation of June 13, 1865, restoring free intercourse, was full and ample, and that its exercise has been acquiesced in by the national legislature.

"We are next to consider what was the legal effect of that proclamation. Its language has already been cited. Beyond all question, it embraces all contracts thereafter to be made, and delivers them from the invalidating effect of public law, as well as from the effect of the statute of July 13, 1861, and the proclamation made in pursuance thereof, August 16, following. Such contracts being valid, the right to enforce them in the courts necessarily followed. A citizen of one section could sue a citizen of the other on such a contract without having his suit defeated on the ground that it was invalid either by public or statute law, or abated under the plea of alien enemy. Both the right and the remedy on such a contract were complete.

"The question then arises, in what condition were the numerous contracts, existing when the war commenced, left by the proclamation of June 13, 1865? Were they still suspended, and the parties without any right to enforce them? Undoubtedly unpaid debts contracted before the war could have been lawfully paid by citizens of one section to those of the other at any time after the date of this proclamation. This would be exercising one of the privileges of 'domestic intercourse,' restored in express terms by that proclamation. It would seem to follow that the right to enforce payment through ordinary legal remedies must have been restored also. It would be absurd to contend that the proclamation removed the prohibition to enter into new contracts, and left those entered into before, and existing at, the commencement of the war, suspended. Such a distinction would be unjust as well as absurd. It would be a distinction between rights of the same class, and could rest upon no principle of natural justice, good sense, or sound policy. No such construction should be given to a State paper like this proclamation. It was made in the interests of peace, and its ordinary beneficent pursuits, and in furtherance of the rights of the people of both sections of a common country. No possible advantage in the way of convenience, interest, or security to the public or to individuals, consistent with justice, requires that its operation and legal effect should thus be contracted. It should, therefore, receive a liberal, rather than a narrow and technical, interpretation.

"It follows from these principles, that the contract upon which this suit is founded, though suspended during the war, while intercourse between the citizens of the belligerent sections was unlawful, revived on the 13th of June, 1865, and from that date was in full force. From that time there has been no legal obstacle to its enforcement.