Brown v. United States. 8 C. ARMITZ BROWN V. THE UNITED STATES. 8 C. 110. 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, 2 Stats. at Large, 755, is not such an act. Timber discharged from the vessel in which it was imported, and 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. 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. D. Davis, for the appellant. Rush, attorney-general for the United States. [ * 121 ] * MARSHALL, C. J., delivered the opinion of the court, as follows: The material facts in the case are these: 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 port by the embargo of the 4th of April, 1812.1 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 charterparty. 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 low 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 1 2 Stats. at Large, 700. Brown v. United States. 8 C. 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 con * cerned. It does not appear that this seizure was made [* 122 ] under any instructions from the President of the United States; nor is there any evidence of its having his sanction, unless the libel's being filed and prosecuted by the law officer who :epresents the government must imply that sanction. 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. 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. 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? 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 reland the cargo in some port of the United States, the relanding 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, an 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. 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 [* 123 ] 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 choose 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. Brown v. United States. 8 C. The questions to be decided by the court, are: 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? 2d. Is there any legislative act which authorizes such seizure and condemnation? 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 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? 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. 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 [* 124 ] 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 inquiry 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? Even Bynkershoek, who maintains the broad principle, that in war every thing done against an enemy is lawful; that he may be destroyed, Brown v. United States. 8 C. 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." 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." 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 ex- [* 125 ] empt 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. 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." 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. 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. 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 VOL. III. 5 Brown v. United States. 8 C. 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. If we look to the constitution itself, we find this general reasoning much strengthened by the words of that instrument. [ * 126 ] 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.” 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. 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. 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 virtue of the declaration of war. The "act for the safe keeping and accommodation of prisoners of war," is of the same character. The act prohibiting trade with the enemy,3 contains this clause: "And be it further enacted, that the President of the United States * be, and he is hereby authorized to give, at any time within [127] 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." 11 Stats. at Large, 577. 2 2 Stats. at Large, 777. 32 Stats. at Large, 778. |