and in almost every commercial treaty an article is inserted, stipulating for the right to withdraw such property. This rule appeared to be totally incompatible with the idea, that war does, of itself, vest the property in the belligerent government. It might be considered as the opinion of all who have written on the jus belli, that war gives the right to confiscate, but does not itself confiscate, the property of the enemy; and the rules laid down by these writers went to the exercise of this right. The Constitution of the United States was framed at a time when this rule, introduced by commerce in favor of moderation and humanity, was received throughout the civilized world. In expounding that constitution, a construction ought not lightly to 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 extraterritorial. 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 execut ing 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.1 due to the In respect to debts due to an enemy, previously to 12. Debts the commencement of hostilities, the law of Great Bri- enemy. tain pursues a policy of a more liberal, or at least of a 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 exerted. The right of the original creditor to sue for the recovery of the debt is not extinguished; it is only suspended during the war, and revives, in full force, on the restoration of peace.2 Such, too, is the law and practice of the United States. The debts due by American citizens to British subjects before the war of the Revolution, and not actually confiscated, were judicially considered as revived, together with the right to sue for their recovery on the restoration of peace between the two countries. The impediments which had existed to the collection of British debts, under the local laws of the different States of the Confederation, were stipulated to be removed by the treaty of 1 Mr. Chief Justice Marshall, Cranch's Rep. vol. viii. pp. 123–129. 2 Bosanquet & Puller's Rep. vol. iii. p. 191. Furtado v. Rodgers. Vesey Jun. Rep. vol. xiii. p. 71, ex parte Boussmaker. Edward's Adm. Rep. p. 60. The Nuestra Signora de los Dolores. peace, in 1783; but this stipulation proving ineffectual for the complete indemnification of the creditors, the controversy between the two countries on this subject was finally adjusted, by the payment of a sum en bloc by the government of the United States, for the use of the British creditors. The commercial treaty of 1794 also contained an express declaration, that it was unjust and impolitic that private contracts should be impaired by national differences; with a mutual stipulation, that “neither the debts due from individuals of the one nation to individuals of the other, nor shares, nor moneys which they may have in the public funds, or in the public or private banks, shall ever, in any event of war, or national differences, be sequestered or confiscated.1 On the commencement of hostilities between France and Great Britain, in 1793, the former power sequestrated the debts and other property belonging to the subjects of her enemy, which decree was retaliated by a countervailing measure on the part of the British government. By the additional articles to the treaty of peace between the two powers, concluded at Paris, in April, 1814, the sequestrations were removed on both sides, and commissaries were appointed to liquidate the claims of British subjects for the value of their property unduly confiscated by the French authorities, and also for the total or partial loss of the debts due to them, or other property unduly retained under sequestration, subsequently to 1792. The engagement thus extorted from France may be considered as a severe application of the rights of conquest to a fallen enemy, rather than a measure of even-handed justice; since it does not appear that French property, seized in the ports of Great Britain and at sea, in anticipation of hostilities, and subsequently condemned as droits of admiralty, was restored to the original owners under this treaty, on the return of peace between the two countries.2 So, also, on the rupture between Great Britain and Denmark, in 1807, the Danish ships and other property, which had been seized in the British ports and on the high seas, before the actual declaration of hostilities, were condemned as droits of admiralty Dallas's Rep. vol. iii. pp. 4, 5, 199–285. |