be admitted, which would give to a declaration of war an effect in this country it did not possess elsewhere, and which would fetter the exercise of that entire discretion respecting enemy's property, which might enable the government to apply to the enemy the rule which he applied to us.

This general reasoning would be found to be much strengthened by the words of the Constitution itself- That the declaration of war had only the effect of placing the two nations in a state of hostility, of producing a state of war, of giving those rights which war confers; but not of operating, by its own force, any of those results - such as a transfer of property-which are usually produced by ulterior measures of government, was fairly deducible from the enumeration of powers which accompanied that of declaring war: -"Congress shall have power to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water."

It would be restraining this clause within narrower limits than the words themselves import, to say that the power to make rules. concerning captures on land and water was to be confined to captures which are extra-territorial. If it extended to rules respecting enemy's property found within the territory, then the Court perceived an express grant to Congress of the power in question as an independent, substantive power, not included in that of declaring war.

The acts of Congress furnished many instances of an opinion, that the declaration of war does not, of itself, authorize proceedings. against the persons or property of the enemy found at the time within the territory.

War gives an equal right over persons and property; and if its declaration was not considered as prescribing a law respecting the person of an enemy found in our country, neither did it prescribe a law for his property. The act concerning alien enemies, which conferred on the President very great discretionary powers respecting their persons, afforded a strong implication that he did not possess those powers by virtue of the declaration of war.

The act "for the safe-keeping and accommodation of prisoners of war," was of the same character.

The act prohibiting trade with the enemy contained this clause:"That the President of the United States be, and he is hereby authorized to give, at any time within six months after the passage

of this act, passports for the safe transportation of any ship or other property belonging to British subjects, and which is now within the limits of the United States.'

The phraseology of this law showed that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war; and the authority which the act conferred on the President was manifestly considered as one which he did not previously possess.

The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent, was believed to be entirely free from doubt. Was there in the act of Congress, by which war was declared against Great Britain, any expression which would indicate such an intention ?

That act, after placing the two nations in a state of war, authorizes the President to use the whole land and naval force of the United States, to carry the war into effect; and "to issue to private armed vessels of the United States commissions, or letters of marque and general reprisal, against the vessels, goods, and effects of the government of the United Kingdom of Great Britain and Ireland, and the subjects thereof."

That reprisals may be made on enemy's property found within the United States at the declaration of war, if such be the will of the nation, had been admitted; but it was not admitted that, in the declaration of war, the nation had expressed its will to that effect.

It could not be necessary to employ argument in showing, that when the attorney for the United States institutes proceedings at law for the confiscation of enemy's property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel.

The act "concerning letters of marque, prizes, and prize goods," certainly contained nothing to authorize that seizure.

There being no other act of Congress which bore upon the subject, it was considered as proved that the legislature had not confiscated enemy's property, which was within the United States at the declaration of war, and that the sentence of condemnation, pronounced in the court below, could not be sustained.

One view, however, had been taken of this subject, which deserved to be further considered. It was urged that, in executing the laws of war, the executive may seize, and the courts condemn, all property which, according to the modern law of nations, is subject to confiscation; although it might require an act of the legislature to justify the condemnation of that property, which, according to modern usage, ought not to be confiscated.

This argument must assume for its basis that modern usage constitutes a rule which acts directly upon the thing itself, by its own force, and not through the sovereign power. This position was not allowed. This usage was a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, was addressed to the judgment of the sovereign; and although it could not be disregarded by him without obloquy, yet it might be disregarded.

The rule was, in its nature, flexible. It was subject to infinite modifications. It was not an immutable rule of law, but depended on political considerations, which might continually vary. Commercial nations, in the situation of the United States, had always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy's property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of our citizens. Like all other questions of policy, it was proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It was proper for the consideration of the legislature, not of the executive or judiciary. It appeared to the Court that the power of confiscating enemy's property was in the legislature, and that the legislature had not yet declared its will to confiscate property which was within our territory at the declaration of war. (b)156

(b) Mr. Chief Justice Marshall, in Brown v. The United States, Cranch's Rep. viii. 123-129.

[155 Enemy's Property found in the Country on the breaking out of War. The Supreme Court of the United States, in Brown v. United States, decided primarily and unequivocally, that, by the law of nations, the right exists to seize and confiscate any property of an enemy found in the country on the happening of war. On that point the court was unanimous. The case is so treated by all the American commentators. Kent says (i. 59) that "the point seems no longer open for discussion in this country, and has become definitively settled in favor of the ancient and sterner rule." Halleck

Debts

due to the enemy.

§ 305. In respect to debts due to an enemy, previously to the commencement of hostilities, the law of Great Britain pursues a policy of a more liberal, or at least of a

(p. 365) says, The Supreme Court of the United States has decided that the right, stricti juris, still exists, as a settled and undoubted right of war, recognized by the law of nations." Woolsey (§ 118) says, "The Supreme Court of the United States has decided, in accordance with the body of earlier and later text-writers, that by strict right such property is confiscable."

In the cause in question, the property was not afloat as cargo, but on land and in the custody of an American citizen; and the court said, that the rule for the case must be one that could be applied to all private property and private debts. Having decided that such property was subject to forfeiture by the law of nations, the only question remaining was one of municipal or constitutional law; that is, of the validity and authority of the proceedings, under the Constitution of the United States. Still, in interpreting our Constitution, the court looked at it in the light of international law on points of public and general interest. The court held that the existence of war did not operate, proprio vigore, a transfer of title in such property to the United States, rendering proceedings for declaring the forfeiture rather in the nature of what is known as office found, in the common law; but that the existence of war only clothed the nation with the right to confiscate or not, at its option. It was upon the consequences of this doctrine, that the court divided. Judge Story, with the minority, held that, the right to confiscate existing, the power to enforce confiscation in each case was a function of the executive department of the government, as an application of known rules of war, in the same manner that the executive, on the declaration of war, establishes blockades, and orders the capture of enemy's property at sea, and of contraband goods. Chief Justice Marshall, with the majority of the court, held that the confiscation of such property could not be considered as the enforcing of one of the settled consequences of war, which a declaration of war might be considered as involving; for, although the right to confiscate existed, the practice of nations had so generally avoided it, and resorted to it only in special and peculiar cases, that the will of the nation could not be presumed to authorize it, by the mere fact of declaring or recognizing war. The effect of this doctrine under the Constitution was held to be, that the executive could not order confiscation, unless the will of the nation to that effect had been expressed by the authoritative organ, which was the legislative body. Kent justly remarks (i. 60), that, “while this decision established the right, contrary to much modern practice and authority, yet a great point was gained over the rigor and violence of the ancient doctrine, by making the exercise of the right to depend on a special Act of Congress."

Hautefeuille contends that the law of nations exempts from confiscation property found within the country on the breaking out of war, including vessels and cargoes afloat (tom. iv. p. 267; tom. iii. p. 278); but, according to the sense in which that learned author uses the terms "droit des gens," or "droit international," it does not follow that he considers his view to be sustained by the decisions of courts or practice of nations. He refers rather to treaties securing the exemption, and to the opinions of those text-writers whom he considers sound and trustworthy.

The English text-writers, like the American, are of opinion that the law of nations is not settled against the right, but, indeed, admits it. Manning, Law of Nations, 167. Phillimore, Intern. Law, i. 115–135.

In the Crimean war, Russia issued an order, in October 1852, allowing to all Turkish vessels time to depart from Russian waters; but the order is put upon the ground

wiser character, than in respect to droits of admiralty. A maritime power which has an overwhelming naval superiority, may have an interest, or may suppose it has an interest, in asserting the right of confiscating enemy's property, seized before an actual declaration of war; but a nation which, by the extent of its capital, must generally be the creditor of every other commercial country, can certainly have no interest in confiscating debts due to an enemy, since that enemy might, in almost every instance, retaliate with much more injurious effect. Hence, though the prerogative of confiscating such debts, and compelling their payment to the crown, still theoretically exists, it is seldom or ever practically of reciprocity,—that Turkey had not seized Russian vessels. When France and England took part in the war, those powers allowed six weeks for Russian vessels to leave port; and allowed to Russian ships of commerce, not actually in the ports of England or France at the time of the declaration of war, or which left any ports of Russia destined to ports in those countries previously to the declaration, to enter such ports and remain, for the loading of their cargoes, until the expiration of six weeks from the declaration. (See French Declaration of March 27, and British Declaration of March 29, 1854.) Afterwards, further allowance was made to Russian vessels which had sailed for English or French ports before May 15, 1854, to continue their voyages, enter, discharge cargo, and depart immediately. On her part, Russia allowed French and English vessels six weeks to load and sail from ports in the Black Sea, Baltic, and Sea of Azof, and six weeks from the opening of navigation, to vessels in the White Sea. No attempts were made by any parties to this war to confiscate private property of the enemy, not maritime, remaining in the country, or private debts, or to arrest private persons; but declarations of immunity were made on each side to all such persons, with their property, as continued their residence and observed the laws. (Paris Moniteur, March 28, 1854. London Gazette, 18th April, 1854. Gazette du Commerce, 19th April, 1854. Hosack's Law of Neutrals, 57; App. 112. Ortolan, ii, 443–448.) The course pursued by these nations in the Crimean war, and the fact that nearly all nations now have treaties stipulating for time for the removal of vessels and other property in case of war, go far towards creating that change of practice which ultimately changes the law of nations. Certainly, no private property is now lost to the owner, unless its confiscation is specially ordered by the highest political authority of the State; and peace restores the exercise of the rights of ownership over all property not so condemned. Still, it cannot be said that a nation, which, for a cause it may judge sufficient, should seize and condemn such property, had violated established law, although such a course would be regarded as severe in the extreme, and out of harmony with the spirit of the age. Earl Russell, in a despatch of 6th December, 1861, to the British consul at Richmond, Va., speaking of an act of the so-called Confederate Congress confiscating the property of all alien enemies (in which class were included all residents in the loyal States, whether Americans or domiciled foreigners), says, "Whatever may have been the abstract rule of the law of nations on this point in former times, the instances of its application in the manner contemplated by the act of the Confederate Congress, in modern and more civilized times, are so rare, and have been so generally condemned, that it may be said to have become obsolete." Parliamentary Papers, 1862, p. 108. See note 157, infrà, on Confiscation of Private Debts, and note 169, infrà, on Conquest and Belligerent Occupation.]—D. 33*

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