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BROWN sed. The case of the Silesia loan, which exercised the highest talents of the English nation, is an instance to U.STATES. 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, (Quæst. 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 merchauts,) 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

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quote the translation of lord Coke, (2, Just. 27.)-This BROWN would certainly seem to be a very liberal provision; and if its true construction applied to all property and per- U.STATES. sons, 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 Charía, 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.

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. Júr. 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

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in this he is followed by Azuni, Part. 2, ch. 4, art. 2, v. sec. 7.) that the sovereign declaring war, can neither U.STATES. 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 Bynkershock is an authority the other way Bynk. Quæst. 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 seen 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. 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 BROWN rule of the law of nations to be, that every such exercise

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of authority is lawful, and rests in the sound discretion U.STATES. of the sovereign of the nation.

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 war 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 arined 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 VOL. VIII.

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national right, is so justly deemed odious in modern times, and is so generally discountenanced, that nothing U.STATES. 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.

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.

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.

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