Page images
[ocr errors]

property to be sold, and the proceeds brought into Court BROWN to abide the further order of the Court."

U.STATES. 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 princi. ples for which I contended, I shall confine my additional remarks to such as have been overruled by my bre. thren.

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 cannat 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.

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 reyoke and annul


at his pleasare : and even as to captures actually made

under such cominissions, no absolute title by confiscaU.STATES. tion vests in the captors, until a sentence of condemna.

tion. If, ther: fore, British property had come into our ports since the war, and the president had declined to isstie latters 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 expriss provisions of any statute, but from the very state of war, which subjects the hostile property to the disposl f 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 intervene, it would be completely beyond the reach of subsequent condemnation.

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.

[ocr errors]

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

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.

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 6 h 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 presi

dent to grant passports for the property of British sub- BROWN jects within the limits of the United States during the space of six months, and protects certain British pack- U.STATES. ets, &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.

[ocr errors]

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 he


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 lave 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.

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

BROWN laid down. Nothing, in my judgment, is more clear

from authority, than the right to seize hostile property V.ŠTATES. 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 afli,
davits in this very cause) to American property in the
present war; applied, also, to property not merely on
board of slips, but to spars floating alongside of them-
I forbear, however, to press this point, because my opi.
nion in the Court below contains a full discussion of it.

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 de. “ clare 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 ntterly ineffectual without them. The expression, therefore, of that which is implied in the very nature of the grant, cannot weaken the


he argument be correct, that the

force of the grant itself. The words are merely ex BROWN planatory, and introduced ex abundanti cautela. It 0. might be as well contended; that the power to provide U.STATES. 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 nega.. tive the existence of powers of a more general nature. The power to provide 6 for the common defence and general welfare,” could hardly be doubted to include the power “ to borrow money;" the power to coin mcney,” to include the power to regulate the value thereof;" and the power “ to raise and support armies," to include the power 6 to make rules for the government and regulation" thereof. On the other hand, the allir mative 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.

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 tacitły 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 tures 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

« EelmineJätka »