บ.

BROWN British ship of war or merchant ship should now come within our ports, there is no statute declaring such U.STATES. 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?

The act declaring war 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, not 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 common 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 con

ซ.

gress, and does not follow as an incident of a declara- BROWN tion of war: and certainly the rights of the "commander in chief" must be restrained to such acts as are al- U.STATES. lowed by the laws. Besides, the same difficulty meetsus 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?

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,

1

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 legisla tive implication against the existence of the powers for which I contend.

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 supposition 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 exeoutive 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. VOL, VIII.

20

1

BROWN as to declaring war and limiting its effects, rests with v. the legislature. The sovereignty, as to its execution, U.STATES. 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.

On the whole. I am still of opinion that the judgment of the Circuit Court was correct and ought to be affirmed.

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.

In the opinion which I have expressed I am authorized to state that I have the concurrence of one of my brethren.

THE RAPID, PERRY, MASTER.

THIS was an appeal from the sentence of the Circuit After a deCourt, for the District of Massachusetts.

The material facts in the case were these.

claration of war, an American citizen cannot

lawfully send a vessel to the

Jabez Harrison, a native American citizen, the Clai- enemy's counmant and Appellant in this case, had purchased a quantity way his protry to bring aof English goods in England, before the declaration of perty. war by the United States against that country, and deposited them on a small island belonging to the English, called Indian island, and situated near the line between Nova Scotia and the United States. Upon the breaking out of the war, Harrison's agents in Boston hired the Rapid, a vessel licensed and enrolled for the cod fishery, to proceed to the place of deposit and bring away the goods. The Rapid accordingly sailed from Boston on the 3d of July, 1812, with Harrison, the Claimant, on board, proceeded to Eastport, where Harrison was left, and from thence, agreeably to Harrison's orders, to Indian island, where the cargo in question was taken on board. On the 8th of July, while on her return, she was captured by the Jefferson privateer, on the high seas, and brought into Salem. The goods, being libelled as prize, and claimed by Harrison as his property, were condemned, in the Circuit Court of Massachusetts, to the captors, on the ground that by "trading with the enemy," they had acquired the character of enemies' property.

A claim was also interposed by the United States, on the ground of a violation, by the Rapid, of the non-intercourse act. This claim was also rejected, From the decree of the Circuit Court the United States and Harrison appealed.

HARPER, for Harrison.

The ground of condemnation, in the Circuit Court, of the goods in question, was, that trading with the enemy made them enemies' property. But we contend that, in this case, there was no trading with the enemy,

THE RAPID,

Trading is a commercial contract or a series of contracts of sale. Contract is of the essence of trading. PERRY, But no commercial transaction of this kind took place MASTER. between Harrison and the enemy. The contract, in

the present case, was made, the goods were purchased and paid for before the declaration of war; consequent- ly, when the British were friends. Here was merely a case of removal by Harrison of his own property from the enemies' country to this, it was the simple exercise of an act of ownership, an act which surely does not invest the property with a hostile character.

Every citizen has a right, on the breaking out of a war, to withdraw his property, purchased before the war, from the enemy's country and remove it to his own; and it is certainly the interest of the community to permit such removal.

The cargo, therefore, being American property, neither the declaration of war nor the commission of the privateer authorized the capture.

But this case does not rest on general principles alone. In the case of Hallet v. Jenks, 3, Cranch, 210, the actual purchase of a cargo in a French port was decided by this Court to be no violation of the non-intercourse act of 13th June, 1798, a case much stronger than the present. Congress, also, has given a very dif ferent construction to transactions of this kind by the act of 27th February, 1813, (laws U. S. vol 11, p. 388,) remitting the forfeitures which had accrued under the non-intercourse act of March 1st, 1809. Laws U. S. vol. 9, p. 243.

The claim of the United States will not, at this time, be interposed.*

PITMAN, contra, contended,

1. That it appearing, on the face of Harrison's claim, that the property in question was put on board the Rapid in violation of the laws of the United States, he can

*This claim was subsequently, during the same term, revived, and an argument had thereupon. The decision of the Court will be found in the opi nion delivered March 15th, in the case of the Sally.