US SUPREME COURT DECISIONS

British property found in the United States on land at the commencement of hostilities with Great Britain cannot be condemned as enemy's property without a legislative act authorizing its confiscation.

The act of the legislature declaring war is not such an act. Timber, floated into a salt water creek, where the tide ebbs and flows, leaving the ends of the timber resting on the mud at low water and prevented from floating away at high water by booms, is to be considered as landed.

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 commenced in execution of some existing law.

In England, all property captured belongs originally to the Crown, and individuals can acquire a title thereto in no other manner than by a grant from the Crown.

War gives to the sovereign full right to take the persons and confiscate the property of the enemy wherever found: the mitigation of the rigid rule, which the policy of modern times has introduced into practice, although it may effect its exercise, cannot impair the right itself, and when the sovereign authority shall choose to bring it into operation, the Judicial Department must give effect to its will. Until, however, that will is expressed by some legislative act, no power of condemnation can exist in the court. chanrobles.com-red

Page 12 U. S. 111

In expounding the Constitution of the United States, 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 anywhere else 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.

The declaration of war has only the effect of placing the two nations in a state of hostility, 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 the government.

The power of making "rules concerning captures on land and water," which are superadded in the Constitution to that of declaring war, is not to be confined to captures which are extraterritorial, but extends to rules respecting enemy's property found within the territory, and is an express grant to Congress of the power of confiscating enemy property found within the territory at the declaration of war as an independent, substantive power, not included in that of declaring war.

When war breaks out, the question what shall be done with enemy property in our country is a question of policy, and is proper for the consideration of the Legislative Department, which can modify it at will, not for the consideration of the Judicial Department, which can pursue only the law as it is written.

The modern usage of nations is to abstain from confiscating the debts due to an enemy, or his property found within the territory at the breaking out of war. This usage does not constitute a rule acting directly on the thing itself by its own force, but only through the sovereign power. It is a rule which the sovereign follows or abandons at his will, but unless it be abandoned, the right to the debts and the property is only suspended during the war, and revives with the return of peace.

This was an appeal from the sentence of the Circuit Court of Massachusetts, which condemned 550 tons of pine timber, claimed by Armitz Brown, the appellant. chanrobles.com-red

Page 12 U. S. 121