12 U.S. 110 (1814) 8 Cranch 110

ARMITZ BROWN
v.
THE UNITED STATES.

Supreme Court of United States.

March 2, 1814.

D. DAVIS, for the Appellant.

Present... . . All the Judges.

*121 MARSHALL, Ch. J. delivered the opinion of the Court as follows:

The material facts in this 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. 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 charter party. 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 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 concerned. It does not appear *122 that this seizure was made under any instructions from the president of the United States; nor is there any evidence of its having his sanction, unless the libels being filed and prosecuted by the law officer who represents 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 re-land the cargo in some port of the United States, the re-landing 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 *123 of this rigid rule, which the humane and 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 chuse 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.

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 the seizure of the goods of an enemy on land, which *124 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 enquiry 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, 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 *125 enemy in the sovereign, his presence could not exempt 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 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.

That the declaration of war has only the effect of *126 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, 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 six months after the passage *127 "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."

The phraseology of this law shows that the property of a British subject was not considered by the legislature as being vested in the United States by the declaration of war; and the authority which the act confers on the president, is manifestly considered as one which he did not previously possess.

The proposition that a declaration of war does not, in itself, enact a confiscation of the property of the enemy within the territory of the belligerent, is believed to be entirely free from doubt. Is there in the act of congress, by which war is declared against Great Britain, any expression which would indicate such an intention?

That act, after placing the two nations in a state of war, authorizes the president of the United States to use the whole land and naval force of the United States to carry the war into effect, and "to issue to private "armed vessels of the United States, commissions or "letters of marque and general reprisal against the "vessels, goods and effects of the government of the "united kingdom of Great Britain and Ireland, and "the subjects thereof."

That reprisals may be made on enemy property found within the United States at the declaration of war, if such be the will of the nation, has been admitted; but it is not admitted that, in the declaration of war, the nation has expressed its will to that effect.

It cannot be necessary to employ argument in showing that when the attorney for the United States institutes proceedings at law for the confiscation of enemy property found on land, or floating in one of our creeks, in the care and custody of one of our citizens, he is not acting under the authority of letters of marque and reprisal, still less under the authority of such letters issued to a private armed vessel.

*128 The "act concerning letters of marque, prizes and prize goods," certainly contains nothing to authorize this seizure.

There being no other act of congress which bears upon the subject, it is considered as proved that the legislature has not confiscated enemy property which was within the United States at the declaration of war, and that this sentence of condemnation cannot be sustained.

One view, however, has been taken of this subject which deserves to be further considered.

It is urged that, in executing the laws of war, the executive may seize and the Courts condemn all property which, according to the modern law of nations, is subject to confiscation, although it might require an act of the legislature to justify the condemnation of that property which, according to modern usage, ought not to be confiscated.

This argument must assume for its basis the position that modern usage constitutes a rule which acts directly upon the thing itself by its own force, and not through the sovereign power. This position is not allowed. This usage is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded.

The rule is, in its nature, flexible. It is subject to infinite modification. It is not an immutable rule of law, but depends on political considerations which may continually vary.

Commercial nations, in the situation of the United States, have always a considerable quantity of property in the possession of their neighbors. When war breaks out, the question, what shall be done with enemy property in our country, is a question rather of policy than of law. The rule which we apply to the property of our enemy, will be applied by him to the property of *129 our citizens. Like all other questions of policy, it is proper for the consideration of a department which can modify it at will; not for the consideration of a department which can pursue only the law as it is written. It is proper for the consideration of the legislature, not of the executive or judiciary.

It appears to the Court, that the power of confiscating enemy property is in the legislature, and that the legislature has not yet declared its will to confiscate property which was within our territory at the declaration of war. The Court is therefore of opinion that there is error in the sentence of condemnation pronounced in the the Circuit Court in this case, and doth direct that the same be reversed and annulled, and that the sentence of the District Court be affirmed.

STORY, J.

In this case, I have the misfortune to differ in opinion from my brethren; and as the grounds of the decree were fully stated in an opinion delivered in the Court below, I shall make no apology for reading it in this place.

"This is a prize allegation filed by the district attorney, in behalf of the United States, and of John Delano, against 550 tons of pine timber, part of the cargo of the American ship Emulous, which was seized as enemies' property, about the 5th day of April, 1813, after the same had been discharged from said ship, and while afloat in a creek or dock at New Bedford, where the tide ebbs and flows.

From the evidence in this case, it appears that the ship Emulous is owned by the said John Delano, John Johnson, Levi Jenny, and Joshua Delano of New Bedford, and citizens of the United States. On the 3d day of February 1812, the owners, by their agents, entered into a charter-party with Elijah Brown as agent of Messrs. Christopher Idle, Brother and Co. and James Brown, of London, merchants, for said ship, to proceed from the port of Charleston, South Carolina, (where the ship then lay,) to Savannah, in Georgia, and there take on board a cargo of timber and staves, at a certain *130 freight stipulated in the charter-party, and proceed with the same to Plymouth, in England, "for orders to unload there or at any other of his majesty's dock-yards in England." The ship accordingly proceeded to Savannah, took on board the agreed cargo, and was there stopped by the embargo laid be Congress on the 4th of April 1812. On the 25th of the same April, it was agreed between Mr. E. Brown and the master of the ship, that she should proceed with the cargo to, and lay at New Bedford, without prejudice to the charter-party. The ship accordingly proceeded for New Bedford, and arrived there in the latter part of May 1812, where, it seems, the cargo was finally, but the particular time is not stated, unloaded by the owners of the ship, the staves put into a warehouse, and the timber into a salt water creek or dock, where it has ever since remained, waterborne, under the custody of said John Delano, by whom the subsequent seizure was made, for his own benefit and the benefit of the United States. On the 7th November, 1812, Mr. Elijah Brown, as agent for the British owners, (one of whom, James Brown, is his brother,) sold the whole cargo to the present claimant, Mr. Armitz Brown (who it should seem is also his brother) for 2433 dollars and 67 cents, payable in nine months, for which the claimant gave his note accordingly. The master of the ship, Capt. Allen, swears that, at the time of entering into the charter-party, Mr. Elijah Brown stated to him that the British owners had contracted with the British government to furnish a large quantity of timber to be delivered in some of his majesty's dock-yards.

Besides the claim of Mr. Brown, there is a claim interposed by the owners of the ship Emulous, praying for an allowance to them of their expenses and charges in the premises.

A preliminary exception has been taken to the libel for a supposed incongruity in blending the rights of the United States and of the informer in the manner of a qui tam action at the common law.

I do not think this exception is entitled to much consideration. It is, at most, but an irregularity which cannot affect the nature of the proceedings, or oust the jurisdiction of this Court. If the informer cannot legally *131 take any interest, the United States have still a right, if their title is otherwise well founded, to claim a condemnation: Nor would a proceeding of this nature be deemed a fatal irregularity in Courts having jurisdiction of seizures, whose proceedings are governed by much more rigid rules than those of the admiralty. It is a principle clearly settled at the common law, that any person might seize uncustomed goods to the use of himself and the king, and thereupon inform of the seizure; and if, in the exchequer, the informer be not entitled to any part, the whole shall, on such information, be adjudged to the king. For this doctrine we have the authority of lord Hale. Harg. law tracts, 227. And the solemn judgment of the Court, in Roe v. Roe, Hardr. 185. — and Malden v. Bartlett, Parker, 105. The same rule most undoubtedly exists in the prize Court, and, as I apprehend, applies with greater latitude. All property captured belongs originally to the crown; and individuals can acquire a title thereto in no other manner than by grant from the crown. The Elsebe, 5, Rob. 173. — 11. East, 619. — The Maria Francoise. 6 Rob. 282. This, however, does not preclude the right to seize; on the contrary, it is an indisputable principle in the English prize Courts, that a subject may seize hostile property for the use of the crown, wherever it is found; and it rests in the discretion of the crown whether it will or will not ratify and consummate the seizure by proceeding to condemnation. But to the prize Court it is a matter of pure indifference whether the seizure proceeded originally from the crown, or has been adopted by it; and whether the crown would take jure coronae, by its transcendant prerogative, or jure admiralitatis, as a flower annexed by its grant to the office of lord high admiral. The cases of captures by noncommissioned vessels, by commanders on foreign stations, anterior to war, by private individuals in port or on the coasts, and by naval commanders on shore on unauthorized expeditions, are all very strong illustrations of the principle. The Aquila, 1. Rob. 37. — The Twee Gesuster, 2. Rob. 284, note. — The Rebeckah, 1. Rob. 227. — The Gertruyda, 2. Rob. 211. — The Melomane, 5. Rob. 41. — The Charlotte, 4. Rob. 282. — The Richmond, 5. Rob. 325. — Thorshaven, 1. Edw. 102. — Hale in Harg. law tracts, ch. 28. p. 245. And in cases where private captors seek condemnation to themselves, it is the settled course of the Court, on failure of their title, to decree *132 condemnation to the crown or the admiralty, as the circumstances require. The Walsingham Packet, 2. Rob. 77. — The Etrusco, 4. Rob. 262. note. — and the cases cited supra. Nor can I consider these principles of the British Courts a departure from the law of nations. The authority of Puffendorf and Vattel are introduced to shew that private subjects are not at liberty to seize the property of enemies without the commission of the sovereign, and if they do they are considered as pirates. But when attentively considered, it strikes me that, taking the full scope of these authors, they will not be found to support so broad a position. Puff. B. 8. ch. 6. § 24. — Vattel, B. 3. ch. 15. § 223, 224, 225, 226, 227. Vattel himself admits (§ 234,) that the declaration of war, which enjoins the subjects at large to attack the enemy's subjects, implies a general order; and that to commit hostilities on our enemy without an order from our sovereign after the war, is not a violation so much of the law of nations as of the public law applicable to the sovereignty of our own nation, (§ 225.) And he explicitly states, (§ 226.) that, by the law of nations, when once two nations are engaged in war, all the subjects of the one may commit hostilities against those of the other, and do them all the mischief authorized by the state of war. All that he contends for is, that though, by the declaration, all the subjects in general are ordered to attack the enemy, yet that by custom this is usually restrained to persons acting under commission; and that the general order does not invite the subjects to undertake any offensive expedition without a commission or particular order; (§ 227.) and that if they do, they are not usually treated by the enemy in a manner as favorable as other prisoners of war, (§ 226.) And Vattel (§ 227) explicitly declares, that the declaration of war "authorizes, indeed, and even obliges every subject, of whatever rank, to secure the persons and things belonging to the enemy, when they fall into his hands. And he then goes on to state cases in which the authority of the sovereign may be presumed, (§ 228.) The whole doctrine of Vattel, fairly considered, amounts to no more than this, that the subject is not required, by the mere declaration of war, to originate predatory expeditions against the enemy; that he is not authorized to wage war contrary to the will of his own sovereign; and that, though the ordinary declaration of war imports a general authority to attack the enemy *133 and his property, yet custom has so far restrained its meaning, that it is in general confined to persons acting under the particular or constructive commission of the sovereign. If, therefore, the subject do undertake a predatory expedition, it is an infringement of the public law of his own country, whose sovereignty he thus invades, but it is not a violation of the law of nations of which the enemy has a right to complain. But if the property of the enemy fall into the hands of a subject, he is bound to secure it.

For every purpose applicable to the present case, it does not seem necessary to controvert these positions; and, whatever may be the correctness of the others, I am perfectly satisfied that the position is well founded, that no subject can legally commit hostilities, or capture property of an enemy, when, either expressly or constructively, the sovereign has prohibited it. But suppose he does, I would ask if the sovereign may not ratify his proceedings; and thus, by a retroactive operation, give validity to them? Of this there seems to me no legal doubt. The subject seizes at his peril, and the sovereign decides, in the last resort, whether he will approve or disapprove of the act. Thorshaven, 1, Edw. 102. The authority of Puffendorf is still less in favor of the position of the Claimant's counsel. In the section cited (book 8, ch. 6, sec. 21.) Puffendorf considers the question to whom property captured in war belongs; a question also examined by Vattel in the 229th section of the book and chapter above referred to. In the course of that discussion, Puffendorf observes, "that it may be very justly questioned, whether every thing taken in war, by private hostilities, and by the bravery of private subjects that have no commission to warrant them, belongeth to them that take it. For this is also a part of the war, to appoint what persons are to act in a hostile manner against the enemy, and how far: and, in consequence, no private person hath power to make devastations in an enemy's country or to carry off spoil or plunder without permission from his sovereign: and the sovereign is to decide how far private men, when they are permitted, are to use that liberty of plunder; and whether they are to be the sole proprietors in the booty or only to share a part of it: so that all a private adventurer in war can pretend to, is no more than *134 what his sovereign will please to allow him; for to be a soldier and to act offensively, a man must be commissioned by public authority."

As to the point upon which Puffendorf here expresses his doubts, I suppose that no person, at this day, entertains any doubts. It is now clear, as I have already stated, that all captures in war enure to the sovereign, and can become private property only by his grant. But is there any thing in Puffendorf to authorize the doctrine, that the subject so seizing property of the enemy, is guilty of a very enormous crime — of the odious crime of piracy? And is there, in this language, any thing to show that the sovereign may not adopt the acts of his subjects, in such a case, and give them the effect of full and perfect ratification? It has not been pretended, that I recollect, that Grotius supports the position contended for. To me it seems pretty clear that his opinions lean rather the other way; viz: to support the indiscriminate right of captors to all property captured by them. Grotius, lib. 3, ch. 6, sec. 2, sec. 10, sec. 12. Bynkershoek has not discussed the question in direct terms. In one place (Bynk. Pub. Juris, ch. 3,) he says, that he is not guilty of any crime, by the laws of war, who invades a hostile shore in hopes of getting booty. It is true that, in another place (id. ch. 20.) he admits, in conformity to his doctrine elsewhere, (id. ch. 17,) that if an uncommissioned cruizer should sail for the purpose of making hostile captures, she might be dealt with as a pirate, if she made any captures except in self-defence. But this he expressly grounds upon the municipal edicts of his own country in relation to captures made by its own subjects. And he says, every declaration of war not only permits but expressly orders all subjects to injure the enemy by every possible means; not only to avert the danger of capture, but to capture and strip the enemy of all his property. And, looking to the general scope of his observations, (id. ch. 3, 4, & ch. 16 & 17.) I think it may, not unfairly, be argued that, independent of particular edicts, the subjects of hostile nations might lawfully seize each other's property wherever found: at least, he states nothing from which it can be inferred that the sovereign might not avail himself of property captured from the enemy by uncommissioned subjects. On *135 the whole, I hold that the true doctrine of the law of nations, found in foreign jurists, is, that private citizens cannot acquire to themselves a title to hostile property, unless it is seized under the commission of their sovereign; and that, if they depredate upon the enemy, they act upon their peril, and may be liable to punishment, unless their acts are adopted by their sovereign. That, in modern times, the mere declaration of war is not supposed to clothe the citizens with authority to capture hostile property, but that they may lawfully seize hostile property in their own defence, and are bound to secure, for the use of the sovereign, all hostile property which falls into their hands. If the principles of British prize law go further, I am free to say that I consider them as the law of this country.

I have been led into this discussion of the doctrine of foreign jurists, farther than I originally intended; because the practice of this Court in prize proceedings must, as I have already intimated, be governed by the rules of admiralty law disclosed in English reports, in preference to the mere dicta of elementary writers. I though it my duty, however, to notice these authorities, because they seem generally relied on by the Claimant's counsel. In my judgment, the libel is well and properly brought; at least for all the purposes of justice between the parties before the Court; and I overrule the exception taken to its sufficiency.

Having disposed of this objection, I come now to consider the objection made by the United States against the sufficiency of the claim of Mr. Brown; and I am entirely satisfied that his claim must be rejected. It is a well known rule of the prize Court, that the onus probandi lies on the Claimant; he must make out a good and sufficient title before he can call upon the captors to shew any ground for the capture. The Walsingham packet, 2, Rob. 77. If, therefore, the Claimant make no title, or trace it only by illegal transactions, his claim must be rejected, and the Court left to dispose of the cause, as the other parties may establish their rights. In the present case, Mr. Brown claims a title by virtue of a contract and sale made by alien enemies since the war: I say by alien enemies; for it is of no importance what the character of the agent is; the transaction *136 must have the same legal construction as though made by the aliens themselves. Now admitting that this sale was not colorable, but bona fide, which, however, I am not, at present, disposed to believe, still it was a contract made with enemies, pending a known war; and therefore invalid. No principle of national or municipal law is better settled, than that all contracts with an enemy, made during war, are utterly void. This principle has grown hoary under the reverend respect of centuries; (19, Edw. 4, 6, cited Theol. Dig. lib. 1, ch. 6, sec. 21. Ex parte Bonsmaker, 13, Ves. jun. 71 — Briston v. Towers, 6, T.R. 45,) and cannot now be shaken without uprooting the very foundations of national law. Bynk. Quæst. Pub. Juris, ch. 3.

I, therefore, altogether reject the claim interposed by Mr. Brown. What, then, is to be done with the property? It is contended, on the part of the United States, that it ought to be condemned to the United States, with a recompense, in the nature of salvage, to be awarded to Mr. Delano. On the part of the Claimant's counsel (who, under the circumstances, must be considered as arguing as amicus curiæ to inform the conscience of the Court) it is contended, 1st. That this Court, as a Court of prize, has no proper jurisdiction over the cause. 2d. That if it have jurisdiction, it cannot award condemnation to the United States, for several reasons. 1st. Because, by the law of nations, as now understood, no government can lawfully confiscate the debts, credits, or visible property of alien enemies, which have been contracted or come into the country during peace. 2d. Because, if the law of nations does not, the common law does afford such immunity from confiscation to property situated like the present. 3d. Because, if the right to confiscate exist, it can be exercised only by a positive act of congress, who have not yet legislated to this extent. 4th. Because, if the last position be not fully accurate, yet, at all events, this process, being a high prerogative power, ought not to be exercised, except by express instructions from the president, which are not shown in this case.

Some of these questions are of vast importance and most extensive operation; and I am exceedingly obliged to the gentlemen who have argued them with so *137 much ability and learning, for the light which they have thrown upon a path so intricate and obscure. I have given these questions as much consideration as the state of my health and the brevity of time would allow; and I shall now give them a distinct and separate discussion, that I may at least disclose the sources of my errors, if any, and enable those who unite higher powers of discernment with more extensive knowledge, to give a more exact and just opinion.

And first... . As to the jurisdiction of this Court in matters of prize.

This depends partly on the prize act of 26th June, 1812, ch. 107, § 6, and partly on the true extent and meaning of the admiralty and maritime jurisdiction conferred on the Courts of the United States. The act of 26th June, 1812, ch. 107, provides that in all cases of captured vessels, goods and effects which shall be brought within the jurisdiction of the United States, the district Court shall have exclusive original cognizance thereof, as in civil causes of admiralty and maritime jurisdiction. The act of 18th June, 1812, ch. 102, declaring war, authorizes the president to issue letters of marque and reprisal to private armed ships against the vessels, goods and effects of the British government and its subjects; and to use the whole land and naval force of the United States to carry the war into effect. In neither of these acts is there any limitation as to the places where captures may be made on the land or on the seas; and, of course, it would seem that the right of the Courts to adjudicate respecting captures would be co-extensive with such captures, wherever made, unless the jurisdiction conferred is manifestly confined by the former act to captures made by private armed vessels. It is not, however, necessary closely to sift this point, as it may now be considered as settled law, that the Courts of the United States, under the judicial act of 30th September, 1789, ch. 20, have, by the delegation of all civil causes of admiralty and maritime jurisdiction, at least as full jurisdiction of all causes of prize as the admiralty in England. Glass and al. v. the sloop Betsey and al. 3 Dall. 6. Talbot v. Janson, 3 Dall. 133 Penhallow and al. v. Doane's administrators. 3 Dall. 54 Jennings v. Carson, 4 Cranch, 2. Over what captures, *138 then, has the admiralty jurisdiction as a prize Court? This is a question of considerable intricacy, and has not as yet, to my knowledge, been fully settled. It has been doubted whether the admiralty has an inherent jurisdiction of prize, or obtains it by virtue of the commission usually issued on the breaking out of war. That the exercise of the jurisdiction is of very high antiquity and beyond the time of memory, seems to be incontestible. It is found recognized in various articles of the black book of the admiralty, in public treaties and proclamations of a very early date, and in the most venerable relies of ancient jurisprudence. See Robb. Coll. Marit. Intro. p. 6, 7. Id. Instructions, 3 H. 8, p. 10, art. 18, &c. Id. p. 12, note letter. Edw. 3, A.D. 1343. Treaty Henry 7 and Charles 8, A.D. 1497. Rob. Coll. Marit. p. 83 and p. 98, art. 8. Rob. Coll. Mar. p. 189, note. Roughton, art. 19, 20, &c. &c. passim. In Lindo v. Rodney, Doug, 613, note, Lord Mansfield, in discussing the subject, admits the immemorial antiquity of the prize jurisdiction of the admiralty; but leaves it uncertain whether it was coeval with the instance jurisdiction, and whether it is constituted by special commission, or only called into exercise thereby. After the doubts of so eminent a judge, it would not become me to express a decided opinion. But taking the fact that, in the earliest times, the jurisdiction is found in the possession of the admiralty, independent of any known special commission; that, in other countries, and especially in France, upon whose ancient prize ordinances the administration of prize law seems, in a great measure, to have been modelied, (Vide Ordin. of France, A.D. 1400, Rob. Coll. Marit, p. 75. Ordin. of France, A.D. 1584. Id. p. 105. Treaty Henry 7 and Charles 8. Id. p. 83, and Rob. note, Id. 105) the jurisdiction has uniformly belonged to the admiralty; there seems very strong reason to presume that it always constituted an ordinary and not an extraordinary branch of the admiralty powers: and so I apprehend it was considered by the Supreme Court of the United States, in Glass and al. v. the Betsey, 3 Dall. 6.

However this question may be, as to the right of the admiralty to take cognizance of mere captures made on the land, exclusively by land forces, as to which I give no opinion, it is very clear that its jurisdiction is not *139 confined to mere captures at sea. The prize jurisdiction does not depend upon locality, but upon the subject matter. The words of the prize commission contain authority to proceed upon all and all manner of captures, seizures, prizes and reprisals of all ships and goods that are and shall be taken. The admiralty, therefore, not only takes cognizance of all captures made at sea, in creeks, havens and rivers, but also of all captures made on land, where the same have been made by a naval force, or by co-operation with a naval force. This exercise of jurisdiction is settled by the most solemn adjudications. Key and Hubbard v. Pearse, cited in Le Caux v. Eden, Doug. 606. Lindo v. Rodney, Doug. 613, note. The capture of the Cape of Good Hope, 2 Rob. 274. The Stella del Norte, 5 Rob. 349. The island of Trinidad, 5 Rob. 92. Thorshaven, 1 Edw. 102. The capture of Chrinsurah, 1 Deten. 179. The Rebeckah, 1 Rob. 227. The Gertruyda, 2 Rob. 211. The Maria Francoise, 6 Rob. 282.

Such, then, being the acknowledged extent of the prize jurisdiction of the admiralty, it is, at least in as ample an extent, conferred on the Courts of the United States. For the determination, therefore, of the case before the Court, it is not necessary to claim a more ample jurisdiction; for the capture or seizure, though made in port, was made while the property was waterborne. Had it been landed and remained on land, it would have deserved consideration whether it could have been proceeded against as prize, under the admiralty jurisdiction, or whether, if liable to seizure and condemnation in our Courts, the remedy ought not to have been pursued by a process applicable to municipal confiscations. On these points I give no opinion. See the case of the Oester Eems cited in the Two Friends, 1 Rob. 284, note. Hale de Portubus Maris, &c. in Harg. Law tracts, ch. 28, p. 245, &c. Parker Rep. 267.

Having disposed of the question as to the jurisdiction of this Court, I come to one of a more general nature; viz. Whether, by the modern law of nations, the sovereign has a right to confiscate the debts due to his enemy, or the goods of his enemy found within his territory at the commencement of the war. I might spare myself the consideration of the question as to debts; but, as it *140 has been ably argued, I will submit some views respecting it, because they will illustrate and confirm the doctrine applicable to goods. It seems conceded, and indeed is quite too clear for argument, that, in former times, the right to confiscate debts was admitted as a doctrine of national law. It had the countenance of the civil law. (Dig. lib. 41. tit. 1. — id. lib. 49, tit. 15,) — of Grotius, (De jure belli et pacis, lib. 3, ch. 2, § 2, ch. 6. § 2 ch. 7. § 3 and 4, ch. 13, § 1, 2.) — of Puffendorf, (De jure Nat. et Nat. lib. 8, ch. 6. § 23,) — and lastly of Bynkershoek; (Quæst. Pub. Juris, lib. 1, ch. 7,) who is himself of the highest authority, and pronounces his opinion in the most explicit manner. Down to the year 1737, it may be considered as the opinion of jurists that the right was unquestionable. It is, then, incumbent on those who assume a different doctrine, to prove that, since that period, it has by the general consent of nations, become incorporated into the code of public law. I take upon me to say that no jurist of reputation can be found who has denied the right of confiscation of enemies debts. Vattel has been supposed to be the most favorable to the new doctrine. He certainly does not deny the right to confiscate; and if he may be thought to hesitate in admitting it, nothing more can be gathered from it than that he considers that, in the present times, a relaxation of the rigor of the law has been in practice among the sovereigns of Europe. Vattel, lib. 3, ch. 5, § 77. Surely a relaxation of the law in practice cannot be admitted to constitute an abolition in principle, when the principle is asserted, as late as 1737, by Bynkershoek, and the relaxation shewn by Vattel in 1775. In another place, however, Vattel, speaking on the subject of reprisals, admits the right to seize the property of the nation or its subjects by way of reprisal, and, if war ensues, to confiscate the property so seized. The only exception he makes, is of property which has been deposited in the hands of the nation, and intrusted to the public faith; as is the case of property in the public funds. Vattel, lib. 2, ch. 18, § 342, 343, 344. The very exception evinces pretty strongly the opinion of Vattel as to the general rule. Of the character of Vattel as a jurist, I shall not undertake to express an opinion. That he has great merit is conceded; though a learned civilian, sir James Mac Intosh, informs us that he has fallen into great mistakes in important "practical discussions of public law." *141 Discourse on the law of nations, p. 32, note. But if he is singly to be opposed to the weight of Grotius and Puffendorf, and, above all, Bynkershock, it will be difficult for him to sustain so unequal a contest. I have been pressed with the opinion of a very distinguished writer of our own country on this subject. — Camillus, No. 18 to 23, on the British treaty of 1794. I admit, in the fullest manner, the great merit of the argument which he has adduced against the confiscation of private debts due to enemy subjects. Looking to the measure not as of strict right, but as of sound policy and national honor, I have no hesitation to say that the argument is unanswerable. He proves incontrovertibly what the highest interest of nations dictates with a view to permanent policy: but I have not been able to perceive the proofs by which he overthrows the ancient principle. In respect