Brown v. United States, 12 U.S. 110 (1814)

12 U.S. 110
8 Cranch 110
3 L.Ed. 504

ARMITZ DROWN
v.
THE UNITED STATES.
Feb. 1, 1814
1

THIS was an appeal from the sentence of the Circuit Court of

2

Massachusetts, which condemned 550 tons of pine timber, claimed by Armitz
Brown, the Appellant.

3

D. DAVIS, for the Appellant.

4

This is an appeal from the Circuit Court of Massachusetts, in which Court, the
property consisting of about 550 tons of pine timber, twelve thousand staves,
and eighteen tons of lathwood, were condemned. The libel states, that this
cargo was loaded on board the Emulous, at Savannah, April 9th, 1812; that the
cargo belonged to British subjects; that the ship departed for Plymouth, in
England April 18th, in the same year, and put into New Bedford for repairs; and
that the cargo was there unladen, and remained there until seized by Delano, as
well on his own behalf, as on behalf of the United States. As to some of the
allegations in the libel, there is no evidence whatever to support them; the ship
never departed for Plymouth, never put into New Bedford for repairs. The facts
are these:

5

The property in question was the cargo of the American ship Emulous, and was
seized as enemy's property, about the 5th of April, A. D. 1813, nearly a year
after the same had been discharged from the ship. From the transcript in the
case, it appears that the Emulous was owned by John Delano and others,
citizens of the United States; that, in February, 1812, the owners, by their
agent, chartered the ship to Elijah Brown, as agent for Christopher Ide,
Brothers and Co. and James Brown, British merchants; that, by the charter
party, the ship was to proceed from Charleston, S. C. where she then lay, to
Savannah, and there take on board a'cargo of lumber, at a certain freight
stipulated in the charter party, and proceed with the same to Plymouth, in
England, to unload there, or at any other of his Britannic majesty's dock-yards
in England. The ship proceeded to Savannah, took on board the cargo
mentioned in the libel, and was there stopped by the embargo of the 4th of
April, 1812. On the 25th of the same month of April, it was agreed between the
master of the ship and the agent of the shippers, that the ship should proceed to
New Bedford, where she was owned, with the cargo, and remain there, without
prejudice to the charter party; which agreement is endorsed upon the back of
the charter party. The ship accordingly proceeded to New Bedford, and
remained there until the latter part of May following, when the cargo was
finally unladed and discharged from the ship. The staves and lathwood were
landed and put on a wharf. The timber was put into a salt water creek, which is
not navigable, but where the tide ebbs and flows, and where the timber
remained for safe keeping until the time of the seizure. The timber was secured
in this creek by booms extended across the entrance thereof, and fastened by
stakes driven into the flats. On the 7th of November, 1812, the property was
sold to the claimant by E. Brown, the agent, in pursuance of the authority
which he had for that purpose as agent of the shippers, and in pursuance of the
advice of Delano, who afterwards seized it in the manner and for the purposes
stated in the libel. This sale, the Appellant contends was made bona fide for a
valuable consideration, which has since been paid, and after notice thereof
given to Delano, in whose possession the property then was. The seizure was
not made until five months after the property had been sold to the present
claimant, and nearly twelve months after it was discharged from the ship. The
claimant, it is admitted, is a citizen of the United States. E. Brown, the agent,
by whom the property was sold, is a citizen of the United States, and James
Brown, one of the owners of the cargo, is also a citizen of the United States,
but resides in London and carries on trade and commerce in that city.

6

Upon these facts, the principal point which will be contended for by the
counsel for the claimants is, that this property was lawfully acquired, before
the declaration of war by the United States against Great Britain; and that, it
being found here at the time of the breaking out of the war, under the faith of
the government, it is not, by the modern law of nations, nor by any law of the
United States, liable to confiscation.

7

This question ought not to be decided upon the rigorous principles and the
ancient practice of the law of nations; but according to the mitigated law of
war, sanctioned by modern usage in civilized nations: For when the government
of the United States was organized and finally established, it was not only its
true policy, but its duty, 'to receive the law of nations in its modern state of
purity and refinement.' Per Judge Wilson in the case of Ware v. Hylton, 3 Dall.
281. It is contended by the counsel for the claimant in this case, that the
principle and the usage adopted and sanctioned by the modern law of nations,
is this, 'that enemy's property found in this country at the breaking out of a war,
is not liable to confiscation.' A different practice, said to have prevailed in
Great Britain with regard to property in this situation, found afloat in their ports
and harbors, will be hereafter considered.

8

The rule of the law of nations applicable to this case, is found in Vattel, p. 477.
His words are, 'The sovereign declaring war, can neither detain the persons nor
the property of those subjects of the enemy who are within his dominions at
the time of the declaration. They came into his country under the public faith.
By permitting them to enter and reside in his territories, he tacitly promised
them full liberty and security for their return. He is therefore bound to allow
them a reasonable time for withdrawing with their effects; and if they stay
beyond the time prescribed, he has a right to treat them as enemies, though as
enemies unarmed. But if they are detained by an insurmountable impediment,
as by sickness, he must necessarily and for the same reason grant them a
sufficient extension of the term.' In order to shew the humane and liberal spirit
with which the above rule is adopted by sovereigns in modern times, the same
author adds, 'At present, so far from being wanting in this duty, sovereigns
carry their attention to humanity still further; so that foreigners who are
subjects of the state against which war is declared, are frequently allowed full
time for the settlement of their affairs.'

9

Are not these just and equitable rules of the modern law of nations of authority
in the Judicial Courts of the United States? Upon what principle or policy, are
they to be rejected, and those of an age dark, and even barbarous in comparison
with the present, adopted in their stead? Does it comport with the interest and
character of this government, to reject principles and usages, calculated to
ameliorate and mitigate the state of war and to promote the interest of
commerce, which it appears have been chearfully adopted by all the
monarchies of Europe? The contract which was entered into by the agents of
the parties in this case, was made upon the presumption that, in case of war, the
property would be safe. This presumption arose from the uniform practice, in
similar cases, in all countries upon which the law of nations is binding.

10

It has been suggested that this rule in Vattel is applicable only to such persons
as may happen to be in the country at the time of the declaration of war. Such,
indeed, is the letter of the rule: But when there is the same reason, there is the
same law; and no good reason can be assigned why the property of an absent
owner should not be protected, as well as that of those who may happen to be
resident in the country declaring war. In addition to this, it may be observed,
that the owners of this property were, in law, present during the whole
negotiation relative to this cargo, by their agent, E. Brown, by whom it was
purchased, and who had the whole care and charge of it, at the time that war
was declared.

11

If the correctness or authority of Vattel should be questioned, he will be found
to be supported by other writers of high character.

12

In Chitty's Law of Nations, p. 67, it is thus written: 'In strict justice, the right of
seizure can take effect only on those possessions of the belligerent, which have
come to the hands of his adversary after the declaration of war.' And again, in
p. 80, 'Such appears to be, at present, the law and practice of civilized nations,
with respect to hostile property found within their domimons at the breaking out
of war.' These opinions are not only fairly collocted from modern writers upon
the law of nations, but are entitled to particular respect as coming from a man of
high character for his professional talents, and legal science; and who has done
and written more to improve and reduce to system the common law of England,
than any other writer upon that subject for the last thirty years.

13

The principles and practice of the modern law of nations here advocated, will
also be found conformable to the common law. In Magna Charta, that
venerable foundation of English law and liberty, it is provided, that merchant
strangers in the realm of England at the beginning of a war, shall be protected
from harm in body and goods, until it shall be made known to the high
authorities of the nation, how British merchants should be treated in the
enemy's country, and they were to be dealt with according to such treatment.
Magna Charta, chap. 30. These provisions are commented upon, and
emphatically eulogised by Montesquieu, 2d vol. p. 12.

14

Of similar character were the provisions of an ancient English statute, passed
27 Edwd. 3, Stat. 2, chap. 17, in which it is enacted, 'that in case of war,
merchants shall not be sent suddenly out of the kingdom, but may go out of the
kingdom freely, with their goods, within forty days, and shall not be in any
thing hindered or disturbed in their passage, or to make profit of their
merchandize if they wish to sell them; or, if in default of wind or ship, or any
other adverse cause, they cannotgo, they shall have other forty days, within
which time they shall pass with their merchandize, or sell the same as before.'

15

It is respectfully contended, that no act or measure of the American government
has ever indicated a disposition adverse to those humane and liberal provisions
and usages of the common law, and of the law of nations. On the contrary, so
far as the disposition and policy of the government may be discerned by
implication, it has manifested its entire acquiescence in, and its readiness to
adopt them upon all proper occasions. The spirit and disposition of the
government upon this subject, is apparent from the provisions in (I believe it
may be said) every treaty which has been entered into since the establishment
of the government. Articles for the protection and removal of the property of
enemies found in this country at the breaking out of a war, are found in our
treaties with France, Spain, Holland, Sweden, Prussia, Morocco, England and
Algiers. It will not be contended, that the provisions of these treaties, especially
that with England, can be binding, when the treaties themselves are not in force;
but the uniform practice of those governments, in agreeing to these provisions,
is evidence of the highest nature, that the government of the United States have
adopted, and mean to adhere to the modern law of nations in this respect; that it
approves the liberality of the modern usages, and rejects, and, I hope I may
add, abhors the rigorous rules and contracted principles of the ancient jurists;
that the spirit of the government, and the character of its policy, is to cherish
and carry into practice every principle and every custom and usage, which is
found favorable to commerce, and which will mitigate the evils incident to a
state of war.

16

In the proceedings and measures of the government since the war, there can be
found no expression of its will, that property in the situation of this cargo,
should be confiscated or claimed for the use of the government—on the
contrary, there are indications of another and more benign complexion. By the
act of July 6th, 1812, sect. 6, the president was authorized, within six months
from the date of the act, 'to give passports for the safe transportation of any
ship or property belonging to British subjects, then within the limits of the
United States.' Nothing, therefore, can be more clear, than that it was not the
wish or intention of government, to claim or confiscate property, belonging to
the enemy, then in the United States. If such had been its policy, instead of the
liberal provisions of this statute, provision would have been made in this
statute, or in the act declaring war, not only expressive of the public will upon
this subject, but expressly declaring British property then within the United
States liable to confiscation.

17

By the provisions of this statute, it is apparent that if this property had been on
board a British ship, or if a British ship had been found in which to transport it,
it would have come directly within the authority of the president, as to its safe
transportation. Surely, then, it could never have been the intention of Congress
to have it confiscated upon the ground that it had been lawfully on board an
American ship, in the regular course of trade, was there arrested by the
embargo, and then, for the convenience of all parties, discharged from the ship,
and placed in a proper situation for safe keeping, to abide the events of the
embargo and the war.

18

The Court will also notice, that, previous to the expiration of the six months
allowed by the act of congress, above quoted, for the exportation of British
property, this cargo had been sold with the knowledge and approbation of the
Libellant. This transfer, having been made bona fide, conferred other and new
rights upon a trird party, viz: the present Claimant. The principle quoted and
relied upon, that that transfer was void upon the ground that it was made by an
alien enemy in time of war, probably never contemplated or known by the
parties to the contract; and this may furnish a satisfactory, though perhaps not
strictly a legal reason, why this property was not exported under the president's
passport. At any rate, if the Court should be satisfied that his property is not
liable to confiscation, either by the law of nations or by any act of congress,
they will not trouble themselves about the effect of the transfer, but leave the
parties interested to settle that matter among themselves.

19

Before the Court will condemn this property, they will search for some proof of
a decided intention, on the part of the government, that such property should be
confiscated. It appears that all the acts of congress, so far as they can be
interpreted with reference to this question, manifest a contrary spirit. The act
declaring war, speaks no language adverse to the claim of the Appellant. The
prize act of the 26th of June, 1812, does not enve glance at property in this
situation. Will the Court assume the power, by implication, to condemn the
property; and this, too, against the most explicit declarations of the public will,
so far as they can be collected from measures of an analogous nature? Why is
this case singled out? Why do not the district attornies enter the warehouses in
the numerous sea-ports, and hunt for booty of this description? Such a
proceeding would be as legal and as liberal as the present, though probably
attended with serious mischief to the country, if retaliatory proceedings and
measures should be adopted by the enemy; for it is a well known fact, that the
amount of American property in England at the commencement of the war, was
immensely greater than that of English property in America, at the same period.

20

It was stated, in the argument below, that the question relative to the
confiscation of debts, or choses in action, is illustrative of that which relates to
the confiscation of goods. The modern usage and law of nations, and of our
own country, relative to the confiscation of debts, are equally favorable to the
Claimant in this case.

21

In the first place, it is distinctly denied, that there exists any power to confiscate
the private debts of the enemy, excepting by a positive act of Congress. What
figure would the attorney of the United States make, with a libel in the judicial
Courts, praying for a confiscation of a private debt? The exclusive right of this
kind of confiscation, and even of goods, is in the legislature—per Chase,
Justice, in the case of Ware v. Hylton, 3, Dall. 281. The question which has
been discussed by the writers upon the law of nations, is, whether it be lawful
for the sovereign thus to confiscate. And although it is admitted that he may do
it, yet, 'in regard to the safety of commerce, all the sovereigns of Europe have
departed from this rigor; and as this custom has been generally received, he
who would act contrary to it, would injure the public faith; for strangers trusted
his subjects upon the presumption that the general custom would prevail.'
Vattel, lib. 3. ch. 5, sect. 77. The laws and customs of the United States ought to
be so expounded as to conform to the modern law of nations, which is adverse
to the confiscating of debts. Indeed the confiscation of debts has become
disreputable; and it has been feelingly observed by a late learned judge of this
Court, that 'not a single confiscation of this kind stained the code of any
European power engaged in the war which our revolution produced' 3, Dall.
281.

22

It will be admitted that the question relative to the confiscation of debts, or
choses in action, is illustrative of the question relative to the confiscation of the
private property of an enemy, found here under the faith of government at the
breaking out of the war. Indeed the law and practice is, and ought to be, the
same in both cases; and until a law of congress shall be produced, confiscating
property of this description, the judicial Courts will not only proceed to do it
with great reluctance, but will never assume an authority of that kind, unless
furnished with it by a legislative act, any more than in the confiscation of a
private debt. In addition to all this, it seems to be now perfectly settled by the
modern law and practice of nations, that debts are never to be confiscated; that
it has become a disgraceful act in any government that does it; that these debts
are suspended, and the right to recover them necessarily taken away by the war;
but that upon the return of peace, the debts are revived, and the right to recover
them perfectly restored.

23

The condemnation of this property is demanded upon the ground that the
embargo of the 4th of April, 1812, arrested and detained it until the act of
congress took place declaring war; and that that act had a retroactive effect, and
justifies the condemnation of this property. But to this it is answered: the
embargo of the 4th of April was not a hostile, but a civil embargo; and no such
construction was ever given to an embargo, not of a hostile character. That this
embargo was not of this character is most manifest from this, that express
provision was made for the departure of any foreign ships or vessels, either in
ballast or with the goods, wares and merchandize, on board of such foreign ship
or vessel when notified of the act. It was, therefore, the being laden on board a
vessel of the United States that prevented the departure of this property. If it
had been on board a foreign, even a British, ship, it would not have been
detained. That it was actually laden on board, at the time of the notice of the
embargo, manifestly appears from the record. This, it is conceived, is a
sufficient answer to the claim of the government to this property, upon the
ground that it was stopped by the embargo, and liable to confiscation by the
retroactive operation of the act of congress declaring war. The authorities in
support of the principles here contended for, respecting the difference between
hostile and civil embargoes, must be familiar to the Court, and need not be
cited.

24

But the practice of the British government is relied upon as a rule by which the
Court are to be governed in the present case. It is admitted that the English
Courts of admiralty have condemned vessels detained in port by an embargo,
and found there at the breaking out of hostilities: but it is explicitly denied that
they have ever condemned property found on hand, in that situation. 1 Rob.
228.

25

If, however, the English Courts of admiralty have done wrong, and proceeded
against the modern law of nations in these cases, this honorable Court will not,
for that reason, adopt so unjust a practice. The condemnation of property,
arrested in the ports of Great Britain by an embargo, to which a hostile
character is afterwards given by a subsequent declaration of war, appears to be
a departure from the modern usages of nations, and cannot be justified by or
reconciled with the spirit of those usages. But as they have never condemned
property in this situation, except such as has been found not only afloat, but in
vessels detained in their ports by an embargo, their decisions can form no
precedent in this case; for the property which is the subject of this prosecution,
was either on land, or in such a situation as that it could not be the subject upon
which an embargo could operate; or, in other words, the staves and lathwood
were literally on the land; and the pine timber so discharged from the ship and
so deposited, as to be entitled to the same protection as if actually landed and
stored.

26

The rule adopted in the English Court of Admiralty, as laid down in 2 Rob. 211,
is this: 'All vessels detained in port, and found there at the breaking out of
hostilities, are condemned, jure coronce, to the king; and all coming in after
hostilities, not voluntarily by revolt, but ignorant of the war, are condemned as
droits of admiralty. This rule, both in its import and application, has been
adopted, it is conceived, only in cases of vessels and their cargoes found in the
ports of Great Britain. There can be no reason for their application in this
country to property found on the land, or to property, although waterborne yet,
in the same situation, in reason and in fact, as if found literally on land.

27

Of this description is the property in question. By referring to the record,
particularly the depositions of E. Brown and of Silas Allen, the condition of
this property, from the time it was discharged from the ship to the time it was
seized by Delano, may be learned, from whence it will appear that the
allegation in the libel, that the property was on the high seas, is wholly without
foundation. The staves and lathwood were landed and on a wharf. With respect
to these, there can be no doubt. The timber was discharged from the ship in the
month of May, previous to the declaration of war; it is of such description that it
did not admit of being stored; it would have been injured by lying on the land;
and the only place proper to keep it in, was the one selected, a creek, or small
cove, where the tide ebbs and flows, but which was not navigable even for
boats or scows; for it seems it was necessary to clear it out to admit a scow into
it. Moreover, it was necessary to secure the entrance of this creek by booms or
timber laid across its mouth, fastened by piles or stakes driven into the flats.
This timber was thus secured and stored in the usual way in which property of
this description is managed; and was, to all intents and purposes, as much
lodged and impounded in this place, under a bailment, and in civil hands, (1
Rob. p. 228) as if it had been in a ship yard. It must, therefore, be a great stretch
of power and prerogative to extend the reason of the practice of Great Britain in
condemning property found in its harbors and on board vessels, to property in
the situation of that in question: and unless the practice of Great Britain has
extended to the seizure and condemnation of enemies' property found on land at
the time of breaking out of hostilities, no sanction can be derived from her
practice in favor of the confiscation of this property.

28

The case, was submitted by the Attorney General upon the argument contained
in the opinion of the honorable judge Story, in the Circuit Court, which came
up in the transcript of the record.

29

Wednesday, March 2d. Present. All the Judges.

30

MARSHALL, Ch. J. delivered the opinion of the Court, as follows:

The material facts in this case are these:
31

The Emulous owned by John Delano and others citizens of the United States,
was chartered to a company carrying on trade in Great Britain, one of whom
was an American citizen, for the purpose of carrying a cargo from Savannah to
Plymouth. After the cargo was put on board, the vessel was stopped in part by
the embargo of the 4th of April, 1812. On the 25th of the same month, it was
agreed between the master of the ship and the agent of the shippers, that she
should proceed with her cargo to New Bedford, where her owners resided, and
remain there without prejudice to the charter party. In pursuance of this
agreement, the Emulous proceeded to New Bedford, where she continued until
after the declaration of war. In October or November, the ship was unloaded
and the cargo; except the pine timber, was landed. The pine timber was floated
up a salt water creek, where, at law tide, the ends of the timber rested on the
mud, where it was secured from floating out with the tide, by impediments
fastened in the entrance of the creek. On the 7th of November, 1812, the cargo
was sold by the agent of the owners, who is an American citizen, to the
Claimant, who is also an American citizen. On the 19th of April, a libel was
filed by the attorney for the United States, in the district Court of
Massachusetts, against the said cargo, as well on behalf of the United States of
America as for and in behalf of John Delano and of all other persons concerned.
It does not appear that this seizure was made under any instructions from the
president of the United States; nor is there any evidence of its having his
sanction, unless the libels being filed and prosecuted by the law officer who
represents the govermnent, must imply that sanction.

32

On the contrary, it is admitted that the seizure was made by an individual, and
the libel filed at his instance, by the district attorney who acted from his own
impressions of what appertained to his duty. The property was claimed by
Armitz Brown under the purchase made in the preceding November.

33

The district Court dismissed the libel. The Circuit Court reversed this sentence,
and condemned the pine timber as enemy property forfeited to the United
States. From the sentence of the Circuit Court, the Claimant appealed to this
Court.

34

The material question made at bar is this. Can the pine timber, even admitting
the property not to be changed by the sale in November, be condemned as prize
of war?

35

The cargo of the Emulous having been legally acquired and put on board the
vessel, having been detained by an embargo not intended to act on foreign
property, the vessel having sailed before the war, from Savannah, under a
stipulation to re-land the cargo in some port of the United States, the re-landing
having been made with respect to the residue of the cargo, and the pine timber
having been floated into shallow water, where it was secured and in the custody
of the owner of the ship, and American citizen, the Court cannot perceive any
solid distinction, so far as respects confiscation, between this property and other
British property found on land at the commencement of hostilities. It will
therefore be considered as a question relating to such property generally, and to
be governed by the same rule.

36

Respecting the power of government no doubt is entertained. That war gives to
the sovereign full right to take the persons and confiscate the property of the
enemy wherever found, is conceded. The mitigations of this rigid rule, which
the humane and wise policy of modern times has introduced into practice, will
more or less affect the exercise of this right, but cannot impair the right itself.
That remains undiminished, and when the sovereign authority shall chuse to
bring it into operation, the judicial department must give effect to its will. But
until that will shall be expressed, no power of condemnation can exist in the
Court.

37

The questions to be decided by the Court are:

38

1st. May enemy's property, found on land at the commencement of hostilities,
be seized and condemned as a necessary consequence of the declaration of war?

39

2d. Is there any legislative act which authorizes such seizure and
condemnation?

40

Since, in this country, from the structure of our government, proceedings to
condemn the property of an enemy found within our territory at the declaration
of war, can be sustained only upon the principle that they are instituted in
execution of some existing law, we are led to ask,

41

Is the declaration of war such a law? Does that declaration, by its own
operation, so vest the property of the enemy in the government, as to support
proceedings for its seizure and confiscation, or does it vest only a right, the
assertion of which depends on the will of the sovereign power?

42

The universal practice of forbearing to seize and confiscate debts and credits,
the principle universally received, that the right to them revives on the
restoration of peace, would seem to prove that war is not an absolute
confiscation of this property, but simply confers the right of confiscation.

43

Between debts contracted under the faith of laws, and property acquired in the
course of trade, on the faith of the same laws, reason draws no distinction; and,
although, in practice, vessels with their cargoes, found in port at the declaration
of war, may have been seized, it is not believed that modern usage would
sanction the seizure of the goods of an enemy on land, which were acquired in
peace in the course of trade. Such a proceeding is rare, and would be deemed a
harsh exercise of the rights of war. But although the practice in this respect may
not be uniform, that circumstance does not essentially affect the question. The
enquiry is, whether such property vests in the sovereign by the mere declaration
of war, or remains subject to a right, of confiscation, the exercise of which
depends on the national will: and the rule which applies to one case, so far as
respects the operation of a declaration of war on the thing itself, must apply to
all others over which war gives an equal right. The right of the sovereign to
confiscate debts being precisely the same with the right to confiscate other
property found in the country, the operation of a declaration of war on debts
and on other property found within the country must be the same. What then is
this operation?

44

Even Bynkershoek, who maintains the broad principle, that in war every thing
done against an enemy is lawful; that he may be destoyed, though unarmed and
defenceless; that fraud, or even poison, may be employed against him; that a
most unlimited right is acquired to his person and property; admits that war
does not transfer to the sovereign a debt due to his enemy; and, therefore, if
payment of such debt be not exacted, peace revives the former right of the
creditor; 'because,' he says, 'the occupation which is had by war consists more
in fact than in law.' He adds to his observations on this subject, 'let it not,
however, be supposed that it is only true of actions, that they are not
condemned ipso jure, for other things also belonging to the enemy may be
concealed and escape condemnation.'

45

Vattel says, that 'the sovereign can neither detain the persons nor the property of
those subjects of the enemy who are within his dominions at the time of the
declaration.'

46

It is true that this rule is, in terms, applied by Vattel to the property of those
only who are personally within the territory at the commencement of
hostilities; but it applies equally to things in action and to things in possession;
and if war did, of itself, without any further exercise of the sovereign will, vest
the property of the enemy in the sovereign, his presence could not exempt it
from this operation of war. Nor can a reason be perceived for maintaining that
the public faith is more entirely pledged for the security of property trusted in
the territory of the nation in time of peace, if it be accompanied by its owner,
than if it be confided to the care of others.

47

Chitty, after stating the general right of seizure, says, 'But, in strict justice, that
right can take effect only on those possessions of a belligerent which have come
to the hands of his adversary after the declaration of hostilities.'

48

The modern rule then would seem to be, that tangible property belonging to an
enemy and found in the country at the commencement of war, ought not to be
immediately confiscated; and in almost every commercial treaty an article is
inserted stipulating for the right to withdraw such property.

49

This rule appears to be totally incompatible with the idea, that war does of itself
vest the property in the belligerent government. It may 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 their
rules go to the exercise of this right.

50

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 does not possess elsewhere, and which would fetter that
exercise of entire discretion respecting enemy property, which may enable the
government to apply to the enemy the rule that he applies to us.

51

If we look to the constitution itself, we find this general reasoning much
strengthened by the words of that instrument.

52

That the declaration of war has 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, is fairly deducible from the enumeration of powers which
accompanies 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.'

53

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, is to be confined to captures which are exterritorial. If it
extends to rules respecting enemy property found within the territory, then we
perceive an express grant to congress of the power in question as an
independent substantive power, not included in that of declaring war.

54

The acts of congress furnish 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.

55

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

56

The 'act for the safe keeping and accommodation of prisoners of war,' is of the
same character.

57

The act prohibiting trade with the enemy, contains this clause:

58

'And be it further enacted, 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.'

59

The phraseology of this law shows 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 confers on the president, is
manifestly considered as one which he did not previously possess.

60

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, is believed
to be entirely free from doubt. Is there in the act of congress, by which war is
declared against Great Britain, any expression which would indicate such an
intention?

61

That act, after placing the two nations in a state of war, authorizes the president
of the United States 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.'

62

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

63

It cannot be necessary to employ argument in showing that when the attorney
for the United States institutes proceedings at law for the confiscation of enemy
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 is sued to a private
armed vessel.

64

The 'act concerning letters of marque, prizes and prize goods,' certainly
contains nothing to authorize this seizure.

65

There being no other act of congress which bears upon the subject, it is
considered as proved that the legislature has not confiscated enemy property
which was within the United States at the declaration of war, and that this
sentence of condemnation cannot be sustained.

66

One view, however, has been taken of this subject which deserves to be further
considered.

67

It is 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.

68

This argument must assume for its basis the position 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 is not allowed. This usage is a
guide which the sovereign follows or abandons at his will. The rule, like other
precepts of morality, of humanity, and even of wisdom, is addressed to the
judgment of the sovereign; and although it cannot be disregarded by him
without obloquy, yet it may be disregarded.

69

The rule is, in its nature, flexible. It is subject to infinite modification. It is not
an immutable rule of law, but depends on political considerations which may
continually vary.

70

Commercial nations, in the situation of the United States, have always a
considerable quantity of property in the possession of their neighbors. When
war breaks out, the question, what shall be done with enemy 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 is 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 is proper for the
consideration of the legislature, not of the executive or judiciary.

71

It appears to the Court, that the power of confiscating enemy property is in the
legislature, and that the legislature has not yet declared its will to confiscate
property which was within our territory at the declaration of war. The Court is
therefore of opinion that there is error in the sentence of condemnation
pronounced in the the Circuit Court in this case, and doth direct that the same
be reversed and annulled, and that the sentence of the District Court be
affirmed.

72

STORY, J.

73

In this case, I have the misfortune to differ in opinion from my brethren; and as
the grounds of the decree were fully stated in an opinion delivered in the Court
below, I shall make no apology for reading it in this place.

74

'This is a prize allegation filed by the district attorney, in behalf of the United
States, and of John Delano, against 550 tons of pine timber, part of the cargo of
the American ship Emulous, which was seized as enemies' property, about the
5th day of April, 1813, after the same had been discharged from said ship, and
while afloat in a creek or dock at New Bedford, where the tide ebbs and flows.

75

From the evidence in this case, it appears that the ship Emulous is owned by
the said John Delano, John Johnson, Levi Jenny, and Joshua Delano of New
Bedford, and citizens of the United States. On the 3d day of February 1812, the
owners, by their agents, entered into a charter-party with Elijah Brown as agent
of Messrs. Christopher Idle, Brother and Co. and James Brown, of London,
merchants, for said ship, to proceed from the port of Charleston, South
Carolina, (where the ship then lay,) to Savannah, in Georgia, and there take on
board a cargo of timber and staves, at a certain freight stipulated in the charterparty, and proceed with the same to Plymouth, in England, 'for orders to unload
there or at any other of his majesty's dock-yards in England.' The ship
accordingly proceeded to Savannah, took on board the agreed cargo, and was
there stopped by the embargo laid be Congress on the 4th of April 1812. On the
25th of the same April, it was agreed between Mr. E. Brown and the master of
the ship, that she should proceed with the cargo to, and lay at New Bedford,
without prejudice to the charter-party. The ship accordingly proceeded for New
Bedford, and arrived there in the latter part of May 1812, where, it seems, the
cargo was finally, but the particular time is not stated, unloaded by the owners
of the ship, the staves put into a warehouse, and the timber into a salt water
creek or dock, where it has ever since remained, waterborne, under the custody
of said John Delano, by whom the subsequent seizure was made, for his own
benefit and the benefit of the United States. On the 7th November, 1812, Mr.
Elijah Brown, as agent for the British owners, (one of whom, James Brown, is
his brother,) sold the whole cargo to the present claimant, Mr. Armitz Brown
(who it should seem is also his brother) for 2433 dollars and 67 cents, payable
in nine months, for which the claimant gave his note accordingly. The master
of the ship, Capt. Allen, swears that, at the time of entering into the charterparty, Mr. Elijah Brown stated to him that the British owners had contracted
with the British government to furnish a large quantity of timber to be delivered
in some of his majesty's dock-yards.

76

Besides the claim of Mr. Brown, there is a claim interposed by the owners of
the ship Emulous, praying for an allowance to them of their expenses and
charges in the premises.

77

A preliminary exception has been taken to the libel for a supposed incongruity
in blending the rights of the United States and of the informer in the manner of
a qui tam action at the common law.

78

I do not think this exception is entitled to much consideration. It is, at most, but
an irregularity which cannot affect the nature of the proceedings, or oust the
jurisdiction of this Court. If the informer cannot legally take any interest, the
United States have still a right, if their title is otherwise well founded, to claim
a condemnation: Nor would a proceeding of this nature be deemed a fatal
irregularity in Courts having jurisdiction of seizures, whose proceedings are

governed by much more rigid rules than those of the admiralty. It is a principle
clearly settled at the common law, that any person might seize uncustomed
goods to the use of himself and the king, and thereupon inform of the seizure;
and if, in the exchequer, the informer be not entitled to any part, the whole
shall, on such information, be adjudged to the king. For this doctrine we have
the authority of lord Hale. Harg. law tracts, 227. And the solemn judgn ent of
the Court, in Roe v. Roe, Hardr. 185.—and Malden v. Bartlett, Parker, 105.
The same rule most undoubtedly exists in the prize Court, and, as I apprehend,
applies with greater latitude. All property captured belongs originally to the
crown; and individuals can acquire a title thereto in no other manner than by
grant from the crown. The Elsebe, 5, Rob. 173.—11. East, 619.—The Maria
Francoise. 6 Rob. 282. This, however, does not preclude the right to seize; on
the contrary, it is an indisputable principle in the English prize Courts, that a
subject may seize hostile property for the use of the crown, wherever it is
found; and it rests in the discretion of the crown whether it will or will not
ratify and consummate the seizure by proceeding to condemnation. But to the
prize Court it is a matter of pure indifference whether the seizure proceeded
originally from the crown, or has been adopted by it; and whether the crown
would take jure coronae, by its transcendant prerogative, or jure admiralitatis,
as a flower annexed by its grant to the office of lord high admiral. The cases of
captures by noncommissioned vessels, by commanders on foreign stations,
anterior to war, by private individuals in port or on the coasts, and by naval
commanders on shore on unauthorised expeditions, are all very strong
illustrations of the principle. The Aquila, 1. Rob. 37.—The Twee Gesuster, 2.
Rob. 284, note.—The Rebeckah, 1. Rob. 227.—The Gertruyda, 2. Rob. 211.
—The Melomane, 5. Rob. 41.—The Charlotte, 4. Rob. 282.—The Richmond, 5.
Rob. 325.—Thorshaven, 1.Edw. 102. Hale in Harg. law tracts, ch. 28. p. 245.
And in cases where private captors seek condemnation to themselves, it is the
settled course of the Court, on failure of their title, to decree condemnation to
the crown or the admiralty, as the circumstances require. The Walsingham
Packet, 2.Rob. 77.—The Etrusco, 4. Rob. 262. note.—and the cases cited
supra. Nor can I consider these principles of the British Courts a departure from
the law of nations. The authority of Puffendorf and Vattel are introduced to
shew that private subjects are not at liberty to seize the property of enemies
without the commission of the sovereign, and if they do they are considered as
pirates. But when attentively considered, it strikes me that, taking the full scope
of these authors, they will not be found to support so broad a position. Puff. B.
8. ch. 6. § 24.—Vattel, B. 3. ch. 15. § 223, 224, 225, 226, 227. Vattel himself
admits (§ 234,) that the declaration of war, which enjoins the subjects at large
to attach the enemy's subjects, implies a general order; and that to commit
hostilities on our enemy without an order from our sovereign after the war, is
not a violation so much of the law of nations as of the public law applicable to
the sovereignty of our own nation, (§ 225.) And he explicitly states, (§ 226.)
that, by the law of nations, when once two nations are engaged in war, all the
subjects of the one may commit hostilities against those of the other, and do

them all the mischief authorized by the state of war. All that he contends for is,
that though, by the declaration, all the subjects in general are ordered to attack
the enemy, yet that by custom this is usually restrained to persons acting under
commission; and that the general order does not invite the subjects to undertake
any offensive expedition without a commission or particular order; (§ 227.) and
that if they do, they are not usually treated by the enemy in a manner as
favorable as other prisoners of war, (§ 226.) And Vattel (§ 227) explicitly
declares, that the declaration of war 'authorizes, indeed, and even obliges every
subject, of whatever rank, to secure the persons and things belonging to the
enemy, when they fall into his hands. And he then goes on to state cases in
which the authority of the sovereign may be presumed, (§ 228.) The whole
doctrine of Vattel, fairly considered, amounts to no more than this, that the
subject is not required, by the mere declaration of war, to originate predatory
expeditions against the enemy; that he is not authorized to wage war contrary to
the will of his own sovereign; and that, though the ordinary declaration of war
imports a general authority to attack the enemy and his property, yet custom
has so far restrained its meaning, that it is in general confined to persons acting
under the particular or constructive commission of the sovereign. If, therefore,
the subject do undertake a predatory expedition, it is an infringement of the
public law of his own country, whose sovereignty he thus invades, but it is not
a violation of the law of nations of which the enemy has a right to complain.
But if the property of the enemy fall into the hands of a subject, he is bound to
secure it.

79

For every purpose applicable to the present case, it does not seem necessary to
controvert these positions; and, whatever may be the correctness of the others, I
am perfectly satisfied the the position is well founded, that no subject can
legally commit hostilities, or capture property of an enemy, when, either
expressly or constructively, the sovereign has prohibited it. But suppose he
does, I would ask if the sovereign may not ratify his proceedings; and thus, by a
retroactive operation, give validity to them? Of this there seems to me no legal
doubt. The subject seizes at his peril, and the sovereign decides, in the last
resort, whether he will approve or disapprove of the act. Thorshaven, 1, Edw.
102. The authority of Puffendorf is still less in favor of the position of the
Claimant's counsel. In the section cited (book 8, ch. 6, sec. 21.) Puffendorf
considers the question to whom property captured in war belongs; a question
also examined by Vattel in the 229th section of the book and chapter above
referred to. In the course of that discussion, Puffendorf observes, 'that it may be
very justly questioned, whether every thing taken in war, by private hostilities,
and by the bravery of private subjects that have no commission to warrant
them, belongeth to them that take it. For this is also a part of the war, to appoint
what persons are to act in a hostile manner against the enemy, and how far:
and, in consequence, no private person hath power to make devastations in an
enemy's country or to carry of spoil or plunder without permission from his
sovereign: and the sovereign is to decide how for private men, when they are
permitted, are to use that liberty of plunder; and whether they are to be the sole
proprietors in the booty or only to share a part of it: so that all a private
adventurer in war can pretend to, is no more than what his sovereign will please
to allow him; for to be a soldier and to act offensively, a man must be
commissioned by public authority.'

80

As to the point upon which Puffendorf here expresses his doubts, I suppose that
no person, at this day, entertains any doubts. It is now clear, as I have already
stated, that all captures in war enure to the sovereign, and can become private
property only by his grant. But is there any thing in Puffendorf to authorize the
doctrine, that the subject so seizing property of the enemy, is guilty of a very
enormous crime—of the odious crime of piracy? And is there, in this language,
any thing to show that the sovereign may not adopt the acts of his subjects, in
such a case, and give them the effect of full and perfect ratification? It has not
been pretended, that I recollect, that Grotius supports the position contended
for. To me it seems pretty clear that his opinions lean rather the other way; viz:
to support the indiscriminate right of captors to all property captured by them.
Grotius, lib. 3, ch. 6, sec. 2, sec. 10, sec. 12. Bynkershoek has not discussed the
question in direct terms. In one place (Bynk. Pub. Juris, ch. 3,) he says, that he
is not guilty of any crime, by the laws of war, who invades a hostile shore in
hopes of getting booty. It is true that, in another place (id. ch. 20,) he admits, in
conformity to his doctrine elsewhere, (id. ch. 17,) that if an uncommissioned
cruizer should sail for the purpose of making hostile captures, she might be
dealt with as a pirate, if she made any captures except in self-defence. But this
he expressly grounds upon the municipal edicts of his own country in relation
to captures made by its own subjects. And he says, every declaration of war not
only permits but expressly orders all subjects to injure the enemy by every
possible means; not only to avert the danger of capture, but to capture and strip
the enemy of all his property. And, looking to the general scope of his
observations, (id. ch. 3, 4, & ch. 16 & 17.) I think it may, not unfairly, be
argued that, independent of particular edicts, the subjects of hostile nations
might lawfully scize each other's property wherever found: at least, he states
nothing from which it can be inferred that the sovereign might not avail himself
of property captured from the enemy by uncommissioned subjects. On the
whole, I hold that the true doctrine of the law of nations, found in foreign
jurists, is, that private citizens cannot acquire to themselves a title to hostile
property, unless it is seized under the commission of their sovereign; and that,
if they depredate upon the enemy, they act upon their peril, and may be liable
to punishment, unless their acts are adopted by their sovereign. That, in modern
times, the mere declaration of war is not supposed to clothe the citizens with
authority to capture hostile property, but that they may lawfully seize hostile
property in their own defence, and are bound to secure, for the use of the
sovereign, all hostile property which falls into their hands. If the principles of
British prize law go further, I am free to say that I consider them as the law of
this country.

81

I have been led into this discussion of the doctrine of foreign jurists, farther
than I originally intended; because the practice of this Court in prize
proceedings must, as I have already intimated, be governed by the rules of
admiralty law disclosed in English reports, in preference to the mere dicta of
elementary writers. I thought it my duty, however, to notice these authorities,
because they seem generally relied on by the Claimant's counsel. In my
judgment, the libel is well and properly brought; at least for all the purposes of
justice between the parties before the Court; and I overrule the exception taken
to its sufficiency.

82

Having disposed of this objection, I come now to consider the objection made
by the United States against the sufficiency of the claim of Mr. Brown; and I
am entirely satisfied that his claim must be rejected. It is a well known rule of
the prize Court, that the onus probandi lies on the Claimant; he must make out
a good and sufficient title before he can call upon the captors to shew any
ground for the capture. The Walsingham packet, 2, Rob. 77. If, therefore, the
Claimant make no title, or trace it only by illegal transactions, his claim must
be rejected, and the Court left to dispose of the cause, as the other parties may
establish their rights. In the present case, Mr. Brown claims a title by virtue of a
contract and sale made by alien enemies since the war: I say by alien enemies;
for it is of no importance what the character of the agent is; the transaction
must have the same legal construction as though made by the aliens themselves.
Now admitting that this sale was not colorable, but bona fide, which, however, I
am not, at present, disposed to believe, still it was a contract made with
enemies, pending a known war; and therefore invalid. No principle of national
or municipal law is better settled, than that all contracts with an enemy, made
during war, are utterly void. This principle has grown hoary under the reverend
respect of centuries; (19, Edw. 4, 6, cited Theol. Dig. lib. 1, ch. 6, sec. 21. Ex
parte Bonsmaker, 13, Ves. jun. 71—Briston v. Towers, 6, T. R. 45,) and cannot
now be shaken without uprooting the very foundations of national law. Bynk.
Quaest. Pub. Juris, ch. 3.

83

I, therefore, altogether reject the claim interposed by Mr. Brown. What, then, is
to be done with the property? It is contended, on the part of the United States,
that it ought to be condemned to the United States, with a recompense, in the
nature of salvage, to be awarded to Mr. Delano. On the part of the Claimant's
counsel (who, under the circumstances, must be considered as arguing as
amicus curiae to inform the conscience of the Court) it is contended, 1st. That
this Court, as a Court of prize, has no proper jurisdiction over the cause. 2d.
That if it have jurisdiction, it cannot award condemnation to the United States,
for several reasons. 1st. Because, by the law of nations, as now understood, no
government can lawfully confiscate the debts, credits, or visible property of
alien enemies, which have been contracted or come into the country during
peace. 2d. Because, if the law of nations does not, the common law does afford
such immunity from confiscation to property situated like the present. 3d.
Because, if the right to confiscate exist, it can be exercised only by a positive
act of congress, who have not yet legislated to this extent. 4th. Because, if the
last position be not fully accurate, yet, at all events, this process, being a high
prerogative power, ought not to be exercised, except by express instructions
from the president, which are not shown in this case.

84

Some of these questions are of vast importance and most extensive operation;
and I am exceedingly obliged to the gentlemen who have argued them with so
much ability and learning, for the light which they have thrown upon a path so
intricate and obscure. I have given these questions as much consideration as the
state of my health and the brevity of time would allow; and I shall now give
them a distinct and separate discussion, that I may at least disclose the sources
of my errors, if any, and enable those who unite higher powers of discernment
with more extensive knowledge, to give a more exact and just opinion.

85

And first. As to the jurisdiction of this Court in matters of prize.

86

This depends partly on the prize act of 26th June, 1812, ch. 107, § 6, and partly
on the true extent and meaning of the admiralty and maritime jurisdiction
conferred on the Courts of the United States. The act of 26th June, 1812, ch.
107, provides that in all cases of captured vessels, goods and effects which shall
be brought within the jurisdiction of the United States, the district Court shall
have exclusive original cognizance thereof, as in civil causes of admiralty and
maritime jurisdiction. The act of 18th June, 1812, ch. 102, declaring war,
authorizes the president to issue letters of marque and reprisal to private armed
ships against the vessels, goods and effects of the British government and its
subjects; and to use the whole land and naval force of the United States to carry
the war into effect. In neither of these acts is there any limitation as to the
places where captures may be made on the land or on the seas; and, of course,
it would seem that the right of the Courts to adjudicate respecting captures
would be co-extensive with such captures, wherever made, unless the

jurisdiction conferred is manifestly confined by the former act to captures made
by private armed vessels. It is not, however, necessary closely to sift this point,
as it may now be considered as settled law, that the Courts of the United States,
under the judicial act of 30th September, 1789, ch. 20, have, by the delegation
of all civil causes of admiralty and maritime jurisdiction, at least as full
jurisdiction of all causes of prize as the admiralty in England. Glass and al. v.
the sloop Betsey and al. 3 Dall. 6. Talbot v. Janson, 3 Dall. 133 Penhallow and
al. v. Doane's administrators. 3 Dall. 54 Jennings v. Carson, 4 Cranch, 2. Over
what captures then, has the admiralty jurisdiction as a prize Court? This is a
question of considerable intricacy, and has not as yet, to my knowledge, been
fully settled. It has been doubted whether the admiralty has an inherent
jurisdiction of prize, or obtains it by virtue of the commission usually issued on
the breaking out of war. That the exercise of the jurisdiction is of very high
antiquity and beyond the time of memory, seems to be incontestible. It is found
recognized in various articles of the black book of the admiralty, in public
treaties and proclamations of a very early date, and in the most venerable relics
of ancient jurisprudence. See Robb. Coll. Marit. Intro. p. 6, 7. Id. Instructions, 3
H. 8, p. 10, art. 18, &c. Id. p. 12, note letter. Edw. 3, A. D. 1343. Treaty Henry
7 and Charles 8, A. D. 1497. Rob. Coll. Marit. p. 83 and p. 98, art. 8. Bob.
Coll. Mar. p. 189, note. Roughton, art. 19, 20, &c. &c. passim. In Lindo v.
Rodney, Doug. 613, note, Lord Mansfield, in discussing the subject, admits the
immemorial antiquity of the prize jurisdiction of the admiralty; but leaves it
uncertain whether it was coeval with the instance jurisdiction, and whether it is
constituted by special commission, or only called into exercise thereby. After
the doubts of so eminent a judge, it would not become me to express a decided
opinion. But taking the fact that, in the earliest times, the jurisdiction is found
in the possession of the admiralty, independent of any known special
commission; that, in other countries, and especially in France, upon whose
ancient prize ordinances the administration of prize law seems, in a great
measure, to have been modelied, (Vide Ordin. of France, A. D. 1400, Rob. Coll.
Marit. p. 75. Ordin. of France, A. D. 1584. Id. p. 105. Treaty Henry 7 and
Charles 8. Id. p. 83, and Rob. note, Id. 105) the jurisdiction has uniformly
belonged to the admiralty; there seems very strong reason to presume that it
always constituted an ordinary and not an extraordinary branch of the admiralty
powers: and so I apprehend it was considered by the Supreme Court of the
United States, in Glass and al. v. the Betsey, 3 Dall. 6.

87

However this question may be, as to the right of the admiralty to take
cognizance of mere captures made on the land, exclusively by land forces, as to
which I give no opinion, it is very clear that its jurisdiction is not confined to
mere captures at sea. The prize jurisdiction does not depend upon locality, but
upon the subject matter. The words of the prize commission contain authority
to proceed upon all and all manner of captures, seizures, prizes and reprisals of
all ships and goods that are and shall be taken. The admiralty, therefore, not
only takes cognizance of all captures made at sea, in creeks, havens and rivers,
but also of all captures made on land, where the same have been made by a
naval force, or by co-operation with a naval force. This exercise of jurisdiction
is settled by the most solemn adjudications. Key and Hubbard v. Pearse, cited
in Le Caux v. Eden, Doug. 606. Lindo v. Rodney, Doug. 613, note. The capture
of the Cape of Good Hope, 2 Rob. 274. The Stella del Norte, 5 Rob. 349. The
island of Trinidad, 5 Rob. 92. Thorshaven, 1 Edw. 102. The capture of
Chrinsurah, 1 Deten. 179. The Rebeckah, 1 Rob. 227. The Gertruyda, 2 Rob.
211. The Maria Francoise, 6 Rob. 282.

88

Such, then, being the acknowledged extent of the prize jurisdiction of the
admiralty, it is, at least in as ample an extent, conferred on the Courts of the
United States. For the determination, therefore, of the case before the Court, it
is not necessary to claim a more ample jurisdiction; for the capture or seizure,
though made in port, was made while the property was waterborne. Had it been
landed and remained on land, it would have deserved consideration whether it
could have been proceeded against as prize, under the admiralty jurisdiction, or
whether, if liable to seizure and condemnation in our Courts, the remedy ought
not to have been pursued by a process applicable to municipal confiscations. On
these points I give no opinion. See the case of the Oester Eems cited in the Two
Friends, 1 Rob. 284, note. Hale de Portubus Maris, &c. in Harg. Law tracts,
ch. 28, p. 245, &c. Parker Rep. 267.

89

Having disposed of the question as to the jurisdiction of this Court, I come to
one of a more general nature; viz. Whether, by the modern law of nations, the
sovereign has a right to confiscate the debts due to his enemy, or the goods of
his enemy found within his territory at the commencement of the war. I might
spare myself the consideration of the question as to debts; but, as it has been
ably argued, I will submit some views respecting it, because they will illustrate
and confirm the doctrine applicable to goods. It seems conceded, and indeed is
quite too clear for argument, that, in former times, the right to confiscate debts
was admitted as a doctrine of national law. It had the countenance of the civil
law. (Dig. lib. 41. tit. 1.—id. lib. 49, tit. 15,)—of Grotius, (De jure belli et
pacis, lib. 3, ch. 2, § 2, ch. 6, § 2 ch. 7, § 3 and 4, ch. 13, § 1, 2,)—of
Puffendorf, (De jure Nat. et Nat. lib. 8 ch. 6, § 23,)—and lastly of Bynkershoek;
(Quoest. Pub. Juris, lib. 1, ch. 7,) who is himself of the highest authority, and
pronounces his opinion in the most explicit manner. Down to the year 1737, it

may be considered as the opinion of jurists that the right was unquestionable. It
is, then, incumbent on those who assume a different doctrine, to prove that,
since that period, it has by the general consent of nations, become incorporated
into the code of public law. I take upon me to say that no jurist of reputation
can be found who has denied the right of confiscation of enemies debts. Vattel
has been supposed to be the most favorable to the new doctrine. He certainly
does not deny the right to confiscate; and if he may be thought to hesitate in
admitting it, nothing more can be gathered from it than that he considers that, in
the present times, a relaxation of the rigor of the law has been in practice
among the sovereigns of Europe. Vattel, lib. 3, ch. 5, § 77. Surely a relaxation
of the law in practice cannot be admitted to constitute an abolition in principle,
when the principle is asserted, as late as 1737, by Bynkershoek, and the
relaxation shewn by Vattel in 1775. In another place, however, Vattel, speaking
on the subject of reprisals, admits the right to seize the property of the nation or
its subjects by way of reprisal, and, if war ensues, to confiscate the property so
seized. The only exception he makes, is of property which has been deposited in
the hands of the nation, and intrusted to the public faith; as is the case of
property in the public funds. Vattel, lib. 2, ch. 18, § 342, 343, 344. The very
exception evinces pretty strongly the opinion of Vattel as to the general rule. Of
the character of Vattel as a jurist, I shall not undertake to express an opinion.
That he has great merit is conceded; though a learned civilian, sir James Mac
Intosh, informs us that he has fallen into great mistakes in important 'practical
discussions of public law.' Discourse on the law of nations, p. 32, note. But if
he is singly to be opposed to the weight of Grotius and Puffendorf, and, above
all, Bynkershock, it will be difficult for him to sustain so unequal a contest. I
have been pressed with the opinion of a very distinguished writer of our own
country on this subject.—Camillus, No. 18 to 23, on the British treaty of 1794. I
admit, in the fullest manner, the great merit of the argument which he has
adduced against the confiscation of private debts due to enemy subjects.
Looking to the measure not as of strict right, but as of sound policy and national
honor, I have no hesitation to say that the argument is unanswerable. He proves
incontrovertibly what the highest interest of nations dictates with a view to
permanent policy: but I have not been able to perceive the proofs by which he
overthrows the ancient principle. In respect to the opinion of Grotius, quoted by
him in No. 20, as indicating a doubt by Grotius of his own principles, I cannot
help thinking that the learned writer has himself fallen into a mistake. Grotius,
in the place referred to, lib. 3, ch. 20, § 16, is not adverting to the right of
confiscation, but merely to the general results of a treaty of peace. He says (§
15,) that, after a peace, no action lies for damages done in the war; but (§ 16,)
that debts due before the war are not, by the mere operations of the war,
released, but remain suspended during the war, and the right to recover them
revives at the peace. It is impossible to doubt the meaning of Grotius, when the
preceding and succeeding sections are taken in connexion. Grotius, therefore, is
not inconsistent with himself, nor is 'Bynkershoek more inconsistent;' for the
latter explicitly avows the same doctrine, but considers it inapplicable to debts

confiscated during the war; for these are completely extinguished. Bynk.
Quaest. Pub. Juris, ch. 7.
90

It is supposed by the same learned writer, that the principle of confiscating
debts had been abandoned for more than a century. That the practice was
intermitted, is certainly no very clear proof of an abandonment of the principle.
Motives of policy and the general interests of commerce may combine to
induce a nation not to inforce its strict rights, but it ought not therefore to be
construed to release them. It may, however, be well doubted if the practice is
quite so uniform as it is supposed. The case of the Silesia loan, which exercised
the highest talents of the English nation, is an instance to the contrary, almost
within half a century, (in 1752,) In the very elaborate discussions of national
law to which that case gave birth, there is not the slightest intimation that the
law of nations prohibited a sovereign from confiscating debts due to his
enemies, even where the debts were due from the nation; though there is a very
able statement of its injustice in that particular case: and the English memorial
admits that when sovereigns or states borrow money from foreigners, it is very
commonly expressed in the contract, that it should not be seized as reprisals, or
in case of war. Now it strikes me that this very circumstance shews in a strong
light the general opinion as to the ordinary right of confiscation. The
stipulations of particular treaties of the United States have been cited, in
corroboration of their general doctrine, by the claimant's counsel. These treaties
certainly shew the opinion of the government as to the impolicy of enforcing
the right of confiscation against debts and actions. See treaty with Great
Britain, 1794, art. 10—with France 1778, art. 20—with Holland, 8th October
1782, art. 18—with Prussia, 11th July 1799, art. 23—with Morocco, 1787, art.
24—But I cannot admit them to be evidence for the purpose for which they
have been introduced. It may be argued with quite as much if not greater force,
that these stipulations imply an acknowledgement of the general right of
confiscation, and provide for a liberal relaxation between the parties. I hold,
with Bynkershoek, (Quaest. Pub. Jur. ch. 7.) that where such treaties exist, they
must be observed; where there are none, the general right prevails. It has been
further supposed, that the common law of England is against the right of
confiscating debts; and the declaration of Magna Charta, ch. 30, has been cited
to shew the liberal views of the British constitution. This declaration, so far as
is necessary to the present purpose, is as follows: 'If they' (i. e. foreign
merchants,) 'be of a land making war against us, and be found in our realm at
the beginning of the war, they shall be attached without harm of body or goods
(rerum) until it be known unto us, or our chief justice, how our merchants be
entreated, then in the land making war against us, and if our merchants be well
entreated there, theirs shall be likewise with us.' I quote the translation of lord
Coke, (2, Just. 27.)—This would certainly seem to be a very liberal provision;
and if its true construction applied to all property and persons, as well
transiently in the country as domiciled and fixed there, it would certainly be
entitled to all the encomiums which it has received. Montesq. Spirit of Laws,

lib. 20, ch. 14. How far it is now considered as binding, in relation to vessels
and goods found within the realm at the commencement of the war, I shall
hereafter consider. It will be observed, however, that this article of Magna
Charta, does not protect the debts or property of foreigners who are without the
realm: it is confined to foreigners within the realm upon the public faith on the
breaking out of the war. Now it seems to be the established rule of the common
law, that all choses in action, belonging to an enemy, are forfeitable to the
crown; and that the crown is at liberty, at any time during the war, to institute a
process, and thereby appropriate them to itself. This was the doctrine of the
year books, and stands confirmed by the solemn decision of the exchequer, in
the Attorney General v. Weeden, Parker Rep. 267.—Maynard's Edw. 2, cited
ibid. It is a prerogative of the crown which, I admit, has been very rarely
enforced; (See lord Alvanley's observations in Furtado v. Rodgers, 3, Bos. and
Pul. 191,) but its existence cannot admit of a legal doubt. On a review of
authorities, I am entirely satisfied that, by the rigor of the law of nations and of
the common law, the sovereign of a nation may lawfully confiscate the debts of
his enemy, during war, or by way of reprisal: and I will add, that I think this
opinion fully confirmed by the judgement of the Supreme Court in Ware v.
Hylton, 3, Dall. 199, where the doctrine was explicitly asserted by some of the
judges, reluctantly admitted by others, and denied by none.

91

In respect to the goods of an enemy found within the dominions of a belligerent
power, the right of confiscation is most amply admitted by Grotius, and
Puffendorf, and Bynkershoek, and Burlamaqui, and Rutherforth and Vattel. See
Grotius, and Puffendorf, and Bynkershoek ubi supra; and Bynk. Qu. Pub. Jur. c.
4, and 6. 2, Burlam, p. 209, sec. 12, p. 219, sec. 2, p. 221, sec. 11. Ruth. lib. 2,
c. 9, p. 558 to 573. Such, also, is the rule of the common law. Hale in Harg.
law tracts, p. 245, c. 18. Vattel has indeed contended (and in this he is followed
by Azuni, Part. 2, ch. 4, art. 2, sec. 7,) that the sovereign declaring war, can
neither detain the persons nor the property of those subjects of the enemy who
are within his dominions at the time of the declaration, because they came into
the country upon the public faith. This exception (which, in terms, is confined
to the property of persons who are within the country,) seems highly reasonable
in itself, and is an extension of the rule in Magna Charta. But, even limited as it
is, it does not seem followed in practice; and Bynkershoek is an authority the
other way Bynk. Quaest. Pub. Jur. c. 2, 3, 7. In England, the provision in
Magna Charta seems, in practice, to have been confined to foreign merchants
domiciled there; and not extended to others who came to ports of the realm for
occasional trade. Indeed, from the language of some authorities, it would seem
that the clause was inserted, not so much to benefit foreign merchants, as to
provide a remedy for their own subjects, in cases of hostile injuries in foreign
countries. (See the opinion of Ch. J. Lee in Key v. Pearse, cited Doug. 606,
607.) However this may be, it is very certain that Great Britain has uniformly
seized, as prize, all vessels and cargoes of her enemies found afloat in her ports
at the commencement of war. Nay, she has proceeded yet farther, and, in
contemplation of hostilities, laid embargoes on foreign vessels and cargoes, that
she might, at all events, secure the prey. It cannot be necessary for me to quote
authorities on this point. In the articles respecting the droits of admiralty in
1665, there is a very formal recognition of the rights of the crown to all vessels
and cargoes seized before hostilities. The Rebeckah, 1, Rob. 227, and id. 230,
note (a.) This exercise of hostile right of the summum jus, is so far, indeed,
from being obsolete, that it is in constant operation, and, in the present
hostilities, has been applied to the property of the citizens of the United States.
Of a similar character, is the detention of American seamen found in her service
at the commencement of the war, as prisoners of war; a practice which violates
the spirit, though not the letter, of Magna Charta; and, certainly, can, in equity
and good faith, find few advocates. Of the right of Great Britain thus to seize
vessels and cargoes found in her ports on the breaking out of war, I do not find
any denial in authorities which are entitled to much weight; and I, therefore,
consider the rule of the law of nations to be, that every such exercise of
authority is lawful, and rests in the sound discretion of the sovereign of the
nation.

92

The next question is, whether congress (for with them rests the sovereignty of
the nation as to the right of making war, and declaring its limits and effects)
have authorized the seizure of enemies' property afloat in our ports. The act of
18th June, 1812, ch. 102, is in very general terms, declaring was against Great
Britain, and authorizing the president to employ the public forces to carry it
into effect. Independent of such express authority, I think that, as the executive
of the nation, he must, as an incident of the office, have a right to employ all the
usual and customary means acknowledged in war, to carry it into effect. And
there being no limitation in the act, it seems to follow that the executive may
authorize the capture of all enemies' property, wherever, by the law of nations,
it may be lawfully seized. In cases where no grant is made by congress, all such
captures, made under the authority of the executive, must enure to the use of
the government. That the executive is not restrained from authorizing captures
on land, is clear from the provisions of the act. He may employ and actually
has employed the land forces for that purpose; and no one has doubted the
legality of the conduct. That captures may be made, within our own ports, by
commissioned ships, seems a natural result of the language—of the generality
of expression in relation to the authority to grant letters of marque and reprisal
to private armed vessels, which the act does not confine to captures on the high
seas, and is supported by the knowu usage of Great Britain in similar cases. It
would be strange indeed, if the executive could not authorize or ratify a capture
in our own ports, unless by granting a commission to a public or private ship. I
am not bold enough to interpose a limitation where congress have not chosen to
make one; and I hold, that, by the act declaring war, the executive may
authorize all captures which, by the modern law of nations, are permitted and
approved. It will be at once perceived, that in this doctrine I do not mean to
include the right to confiscate debts due to enemy subjects. This, though a
strictly national right, is so justly deemed odious in modern times, and is so
generally discountenanced, that nothing but an express act of congress would
satisfy my mind that it ought to be included among the fair objects of warfare;
more especially as our own government have declared it unjust and impolitic.
But if congress should enact such a law, however much I might regret it, I am
not aware that foreign nations, with whom we have no treaty to the contrary,
could, on the footing of the rigid law of nations, complain, though they might
deem it a violation of the modern policy.

93

On the whole, I am satisfied that congress have authorized a seizure and
condemnation of enemy property found in our ports under the circumstances of
the present case. And the executive may lawfully authorize proceedings to
enforce the confiscation of the same property before the proper tribunals of the
United States. The district attorney is, for this purpose, the proper agent of the
executive and of the United States. From the character and duties of his station,
he is bound to guard the rights of the United States, and to secure their interests.
Whenever he choses to institute proceedings on behalf of the United States, it is
presumed by Courts of law that he has the sanction of the proper authorities;
and that presumption will avail, until the executive or the legislature disavow
the proceedings, and sanction a restoration of the property.

94

I have taken up more time than I originally intended, in discussing the various
subjects submitted in the argument. An apology will be found in their
extraordinary importance. If I shall have successfully shewn that the principles
of prize law, as admitted in England and in the United States, have the sanction
of the principles of public law and public jurists, I shall not regret the labor that
has been employed, although, in this particular case, I may pronounce an
erroneous sentence.

95

I reverse the decree of the district Court, and condemn the 550 tons of timber to
the United States; subject, however, to the right of the owners of the Emulous
to a reimbursement of their actual charges and expenses for the custody of the
property, which I shall reserve for further consideration; and I shall order the
said property to be sold, and the proceeds brought into Court to abide the
further order of the Court.'

96

Such is the opinion which I had the honor to pronounce in the Circuit Court;
and upon the most mature reflection, I adhere to it. The argument in this Court,
urged on behalf of the Claimant, has put in controversy the same points which
were urged before me. But as the opinion of this Court admits many of the
principles for which I contended, I shall confine my additional remarks to such
as have been overruled by my brethren.

97

It seems to have been taken for granted in the argument of counsel that the
opinion held in the Circuit Court proceeded, in some degree, upon a
supposition that a declaration of war operates per se an actual confiscation of
enemy's property found within our territory. To me this is a perfectly novel
doctrine. It was not argued, on either side, in the Circuit Court, and certainly
never received the slightest countenance from the Court. I disclaim, therefore,
any intention to support a doctrine which I always supposed to be wholly
untenable. I go yet further, and admit that a declaration of war does not, of
itself, import a confiscation of enemies' property within or without the country,
on the land or on the high seas. The title of the enemy is not by war divested,
but remains in proprio vigore, until a hostile seizure and possession has
impaired his title. All that I contend for is, that a declaration of war gives a
right to confiscate enemies' property, and enables the power to whom the
execution of the laws and the prosecution of the war are confided, to enforce
that right. If, indeed, there be a limit imposed as to the extent to which
hostilities may be carried by the executive, I admit that the executive cannot
lawfully transcend that limit; but if no such limit exist, the war may be, carried
on according to the principles of the modern law of nations, and enforced when,
and where, and on what property the executive chooses.

98

In no act whatsoever, that I recollect, have congress declared the confiscation of
enemies' property. They have authorized the president to grant letters of marque
and general reprisal, which he may revoke and annul at his pleasure: and even
as to captures actually made under such commissions, no absolute title by
confiscation vests in the captors, until a sentence of condemnation. If, therefore,
British property had come into our ports since the war, and the president had
declined to issue letters of marque and reprisal, there is no act of congress
which, in terms, declares it confiscated and subjects it to condemnation. If,
nevertheless, it be confiscable, the right of confiscation results not from the
express provisions of any statute, but from the very state of war, which subjects
the hostile property to the disposal of the government. But until the title should
be divested by some overt-act of the government and some judicial sentence,
the property would unquestionably remain in the British owners, and if a peace
should interven e, it would be completely beyond the reach of subsequent
condemnation.

99

There is, then, no distinction recognized by any act of congress, between
enemies' property which was within our ports at the commencement of war, and
enemies' property found elsewhere. Neither are declared ipso facto confiscated;
and each, as I contend, are merely confiscable.

100 I will now consider what, in point of law, is the operation of the acts of
Congress made in relation to the present war.

101 The act of 18th June, 1812, ch. 102, declares war to exist between Great Britain
and the United States, and authorizes the president of the United States to use
the land and naval force of the United States to carry the same into effect; and
further authorizes him to issue letters of marque, &c. to private armed vessels,
against the vessels, goods and effects of the government of Great Britain and
the subjects thereof.
102 The prize act of 26th June, 1812, ch. 107, confers the power on the president to
issue instructions to private armed vessels, for the regulation of their conduct.
The act of 6th July, 1812, ch. 128, authorizes the president to make regulations,
&c. for the support and exchange of prisoners of war. The act of 6th July, 1812,
ch. 129, respecting trade with the enemy, authorizes the president to grant
passports for the property of British subjects within the limits of the United
States during the space of six months, and protects certain British packets, &c.
with despatches, from capture. The act of 3d March, 1813, ch. 203, vests in the
president the power of retaliation for any violation of the rules and usages of
civilized warfare by Great Britain.
103 These are all the acts which confer powers, or make provisions touching the
management of the war. In no one of them is there the slightest limitation upon
the executive powers growing out of a state of war; and they exist, therefore, in
their full and perfect vigour. By the constitution, the executive is charged with
the faithful execution of the laws; and the language of the act declaring war
authorizes him to carry it into effect. In what manner, and to what extent, shall
be carry it into effect? What are the legitimate objects of the warfare which he
is to wage? There is no act of the legislature defining the powers, objects or
mode of warfare: by what rule, then, must he be governed? I think the only
rational answer is by the law of nations as applied to a state of war. Whatever
act is legitimate, whatever act is approved by the law, or hostilities among
civilized nations, such he may, in his discretion, adopt and exercise; for with
him the sovereignty of the nation rests as to the execution of the laws. If any of
such acts are disapproved by the legislature, it is in their power to narrow and
limit the extent to which the rights of war shall be exercised; but until such limit
is assigned, the executive must have all the right of modern warfare vested in
him, to be exercised in his sound discretion, or he can have none. Upon what
principle, I would ask, can he have an implied authority to adopt one and not
another? The best manner of annoying, injuring and pressing the enemy, must,
from the nature of things, vary under different circumstances; and the executive
is responsible to the nation for the faithful discharge of his duty, under all the
changes of hostilities.

104 But it is said that a declaration of war does not, of itself, import a right to
confiscate enemies' property found within the country at the commencement of
war. I cannot admit this position in the extent in which it is laid down. Nothing,
in my judgment, is more clear from authority, than the right to seize hostile
property afloat in our ports at the commencement of war. It is the settled
practice of nations, and the modern rule of Great Britain herself, applied (as
appears from the affidavits in this very cause) to American property in the
present war; applied, also, to property not merely on board of ships, but to spars
floating alongside of them—I forbear, however, to press this point, because my
opinion in the Court below contains a full discussion of it.

105 It is also said that a declaration of war does not carry with it the right to
confiscate property found in our country at the commencement of war, because
the constitution itself, in giving congress the power 'to declare war, grant letters
of marque and reprisal, and make rules concerning captures on land and water,'
has clearly evinced that the power to declare war did not, ex vi terminorum,
include a right to capture property every where, and that the power to make
rules concerning captures on land and water, may well be considered as a
substantive power as to captures of property within our own territory. In my
judgment, if this argument prove any thing, it proves too much. If the power to
make rules respecting captures, &c. be a substantive power, it is equally
applicable to all captures, wherever made, on land or on water. The terms of the
grant import no limitation as to place; and I am not aware how we can place
around them a narrower limit than the terms import. Upon the same
construction, the power to grant letters of marque and reprisal is a substantive
power; and a declaration of war could not, of itself, authorize any seizure
whatsoever of hostile property, unless this power was called into exercise. I
cannot, therefore, yield assent to this argument. The power to declare war, in
my opinion, includes all the powers incident to war, and necessary to carry it
into effect. If the constitution had been silent as to letters of marque and
captures, it would not have narrowed the authority of congress. The authority to
grant letters of marque and reprisal, and to regulate captures, are ordinary and
necessary incidents to the power of declaring war. It would be utterly
ineffectual without them. The expression, therefore, of that which is implied in
the very nature of the grant, cannot weaken the force of the grant itself. The
words are merely explanatory, and introduced ex abundanti cautela. It might be
as well contended; that the power 'to provide and maintain a navy,' did not
include the power to regulate and govern it, because there is in the constitution
an express provision to this effect. And yet I suppose that no person would
doubt that congress, independent of such express provision, would have the
power to regulate and govern the navy; and if they should authorize the
executive 'to provide and maintain a navy,' it seems to me as clear that he must
have the incidental power to make rules for its government. In truth, it is by no
means unfrequent in the constitution to add clauses of a special nature to
general powers which embrace them, and to provide affirmatively for certain
powers, without meaning thereby to negative the existence of powers of a more
general nature. The power to provide 'for the common defence and general
welfare,' could hardly be doubted to include the power 'to borrow money;' the
power 'to coin money,' to include the power 'to regulate the value thereof;' and
the power 'to raise and support armies,' to include the power 'to make rules for
the government and regulation' thereof. On the other hand, the affirmative
power 'to define and punish piracies and felonies committed on the high seas,'
has never been supposed to negative the right to punish other offences on the
high seas; and congress have actually legislated to a more enlarged extent. I
cannot therefore persuade myself that the argument against the doctrine for
which I contend, is at all affected by any provision in the constitution.

106 The opinion of my brethren seems to admit that the effect of hostilities is to
confer all the rights which war confers; and it seems tacitly to concede, that, by
virtue of the declaration of war, the executive would have a right to seize
enemies' property which should actually come within our territory during the
war. Certainly no such power is given directly by any statute. And if the
argument be correct, that the power to make captures on land or water must be
expressly called into exercise by congress, before the executive can, even after
war, enforce a capture and condemnation, it will be very difficult to support the
concession. Suppose a British ship of war or merchant ship should now come
within our ports, there is no statute declaring such ship actually confiscated.
There is no express authority either for the navy or army to make a capture of
her; and although the executive might authorize a private armed ship so to do,
yet it would depend altogether on the will of the owners of the ship, whether
they would so do or not. Can it be possible that the executive has not the power
to authorize such seizure? And if he may authorize a seizure by the army or
navy, why not by private individuals if they will volunteer for the purpose?
107 The act declaring was has authorized the executive to employ the land and
naval force of the United States, to carry it into effect. When and where shall he
carry it into effect? Congress have not declared that any captures shall be made
on land; and if this be a substantive power, nor included in a declaration of war,
how can the executive make captures on land, when congress have not
expressed their will to this effect? The power to employ the army and navy
might well be exercised in preventing invasion, and in the commen defence,
without unnecessarily including a right to capture, if the right to capture be not
an incident of war: and upon what ground, then, can the executive plan and
execute foreign expeditions or foreign captures? Upon what ground can he
authorize a Canadian campaign, or sieze a British fort or territory, and occupy it
by right of capture and conquest I am utterly at a loss to perceive, unless it be
that the power to carry the war into effect, gives every incidental power which
the law of nations authorizes and approves in a state of war. I am at a loss to
perceive how the power exists, to seize and capture enemy's property which
was without our territory at the commencement of the war, and not the power to
seize that which was within our territory at the same period. Neither are
expressly given nor denied (except as to private armed ships,) and how can
either be assumed except as an incident of war, acknowledged upon national
and public principles? It may be suggested that the executive, 'as commander in
chief of the army and navy,' has the power to make foreign conquests. But this
is utterly inadmissible, if the right to authorize captures resides as a substantive
power in congress, and does not follow as an incident of a declaration of war:
and certainly the rights of the 'commander in chief' must be restrained to such
acts as are allowed by the laws. Besides, the same difficulty meets us here as in
the former case; if his powers, as commander in chief, authorize him to make
captures without the territory, why not within the territory?

108 The acts respecting alien enemies and prisoners of war, have been supposed,
even in a state of actual war, to confer new powers on the executive. I cannot
accede to the inference in the extent to which it is claimed. In general, these
acts may be deemed mere regulations of war, limiting and directing the
discretion of the executive; and it cannot be doubted that Congress had a
perfect right to prescribe such regulations. To regulate the exercise of the rights
of war as to enemies, does not, however, imply that such rights have not an
independent existence. Besides, it is clear that the act respecting alien enemies
applies only to aliens resident within the country; and not to the property of
aliens, who are not so resident. I might answer, in the same manner, the
argument drawn from the act of 6th July 1812, ch. 129, § 4, and the act of 3d of
March 1813, ch. 203.—But even admitting that these acts did confer some new
powers, still, as these powers do not respect the present case, I cannot consider
them as affording even a legislative implication against the existence of the
powers for which I contend.
109 It has been supposed that my opinion assumes for its basis the position, that
modern usage constitutes a rule which acts directly on the thing itself by its
own force, and not through the sovereign power. Certainly I do not admit this
aupposition to be correct. My argument proceeds upon the ground, that when
the legislative authority, to whom the right to declare war is confided, has
declared war in its most unlimited manner, the executive authority, to whom the
execution of the war is confided, is bound to carry it into effect. He has a
discretion vested in him, as to the manner and extent; but he cannot lawfully
transcend the rules of warfare established among civilized nations. He cannot
lawfully exercise powers or authorize proceedings which the civilized world
repudiates and disclaims. The sovereignty, as to declaring war and limiting its
effects, rests with the legislature. The sovereignty, as to its execution, rests with
the president. If the legislature do not limit the nature of the war, all the
regulations and rights of general war attach upon it. I do not, therefore, contend
that modern usage of nations constitutes a rule acting on enemies' property, so
as to produce confiscation of itself, and not through the sovereign power: on the
contrary, I consider enemies' property in no case whatsoever confiscated by the
mere declaration of war; it is only liable to be confiscated at the discretion of
the sovereign power having the conduct and execution of the war. The modern
usage of nations is resorted to merely as a limitation of this discretion, not as
conferring the authority to exercise it. The sovereignty to execute it is supposed
already to exist in the president, by the very terms of the constitution: and I
would again ask, if this general power to confiscate enemies' property does not
exist in the executive, to be exercised in his discretion, how is it possible that he
can have authority to seize and confiscate any enemies' property coming into
the country since the war, or found in the enemies' territory?—Yet I understood
the opinion of my brethren to proceed upon the tacit acknowledgement that the
executive may seize and confiscate such property, under the circumstances
which I have stated.

110 On the whole, I am still of opinion that the judgment of the Circuit Court was
correct and ought to be affirmed.
111 It is due, however, to myself to state, that, at the trial in the Circuit Court, it was
agreed that the timber had always been afloat on tide waters; and the affidavit
by which it is proved to have rested on land at low tide, was not taken until
after the hearing and decision of the cause.
112 In the opinion which I have expressed I am authorized to state that I have the
concurrence of one of my brethren.