Article 1, Section 8, Clause 11

Document 16

James Kent, Commentaries 53-67


As war cannot lawfully be commenced on the part of the United States, without an act of Congress, such an act is, of course, a formal official notice to all the world, and equivalent to the most solemn declaration.

When war is duly declared, it is not merely a war between this and the adverse government in their political characters. Every man is, in judgment of law, a party to the acts of his own government, and a war between the governments of two nations, is a war between all the individuals of the one, and all the individuals of which the other nation is composed. Government is the representative of the will of all the people, and acts for the whole society. This is the theory in all governments, and the best writers on the law of nations concur in the doctrine, that when the sovereign of a state declares war against another sovereign, it implies that the whole nation declares war, and that all the subjects of the one, are enemies to all the subjects of the other. Very important consequences concerning the obligations of subjects, are deducible from this principle.

When hostilities have commenced, the first objects that naturally present themselves for detention and capture, are the persons and property of the enemy, found within the territory at the breaking out of the war. According to strict authority, a state has a right to deal as an enemy with persons and property so found within its power, and to confiscate the property, and detain the persons as prisoners of war. No one, says Bynkershoeck, ever required that notice should be given to the subjects of the enemy, to withdraw their property, or it would be forfeited. The practice of nations is to appropriate it at once, without notice, if there be no special convention to the contrary. But, though Bynkershoeck lays down this, as well as other rules of war, with great harshness and severity, he mentions several instances arising in the 17th, and one as early as the 15th century, of stipulations in treaties, allowing foreign subjects a reasonable time after the war breaks out, to recover and dispose of their effects, or to withdraw them. Such stipulations have now become an established formula in commercial treaties. Emerigon considers such treaties as an affirmance of common right, or the public law of Europe, and the general rule laid down by some of the later publicists, is in conformity with that provision. The sovereign who declares war, says Vattel, can neither detain those subjects of the enemy who are within his dominions at the time of the declaration of war, nor their effects. They came into the country under the sanction of public faith. By permitting them to enter his territories, and continue there, the sovereign tacitly promised them protection and security for their return. He is, therefore, to allow them a reasonable time to retire with their effects, and if they stay beyond the time, he has a right to treat them as disarmed enemies, unless detained by sickness, or other insurmountable necessity, and then they are to be allowed a further time. It has been frequently provided by treaty, that foreign subjects should be permitted to remain, and continue their business, notwithstanding a rupture between the governments, so long as they conducted innocently; and when there was no such treaty, such a liberal permission has been often announced in the very declaration of war. Sir Michael Foster mentions several instances of such declarations by the King of Great Britain, and he says that aliens were thereby enabled to acquire personal chattels, and to maintain actions for the recovery of their personal rights, in as full a manner as alien friends.

Besides those stipulations in treaties, which have softened the rigours of war by the civilizing spirit of commerce, many governments have made special provision, in their own laws and ordinances, for the security of the persons and property of enemy's subjects, found in the country at the commencement of war.

It was provided by magna charta, that, upon the breaking out of war, foreign merchants found in England, and belonging to the country of the enemy, should be attached, "without harm of body or goods," until it be known how English merchants were treated by the enemy; and "if our merchants," said the charter, "be safe and well treated there, theirs shall be likewise with us." It has been deemed extraordinary, that such a liberal provision should have found a place in a treaty between a feudal king and his barons; and Montesquieu, was struck with admiration at the fact, that a protection of that kind should have been made one of the articles of English liberty. But this provision was confined to the effects of alien merchants, who were within the realm at the commencement of the war, and it was understood to be confined to the case of merchants domiciled there. It was accompanied also with one very ominous qualification, and it was at least equalled, if not greatly excelled, by an ordinance of Charles V. of France, a century afterwards, which declared that foreign merchants, who should be in France at the time of the declaration of war, should have nothing to fear, for they should have liberty to depart freely, with their effects. The spirit of the provision in magna charta, was sustained by a resolution of the judges, in the time of Henry VIII., when they resolved, that if a Frenchman came to England before the war, neither his person nor goods should be seized. The statute of staples, of 27 Edw. III. c. 17. made a still more liberal and precise enactment in favour of foreign merchants, residing in England when war commenced between their prince and the king of England. They were to have convenient warning of forty days, by proclamation, to depart the realm, with their goods, and if they could not do it within that time, by reason of accident, they were to have forty days more to pass with their merchandise, and with liberty, in the mean time, to sell the same. The act of Congress of the 6th of July, 1798, c. 73. was dictated by the same humane and enlightened policy. It authorized the President, in case of war, to direct the conduct to be observed towards subjects of the hostile nation, and being aliens, and within the United States, and in what cases, and upon what security, their residence should be permitted; and it declared, in reference to those who were to depart, that they should be allowed such reasonable time as might be consistent with the public safety, and according to the dictates of humanity and national hospitality, "for the recovery, disposal and removal of their goods and effects, and for their departure."

But however strong the current of authority in favour of the modern and milder construction of the rule of national law on this subject, the point seems to be no longer open for discussion in this country; and it has been definitively settled, in favour of the ancient and sterner rule, by the Supreme Court of the United States. The effect of war upon British property, found in the United States, on land, at the commencement of the war, was learnedly discussed, and thoroughly considered, in the case of Brown; and the Circuit Court of the United States, at Boston, decided, as upon a settled rule of the law of nations, that the goods of the enemy found in the country, and all the vessels and cargoes found afloat in our ports, at the commencement of hostilities, were liable to seizure and confiscation; and the exercise of the right rested in the discretion of the sovereign of the nation. When the case was brought up, on appeal, before the Supreme Court of the United States, the broad principle was assumed, that war gave to the sovereign full right to take the persons, and confiscate the property of the enemy, wherever found; and that the mitigations of this rigid rule, which the wise and humane policy of modern times had introduced into practice, might, more or less, affect the exercise of the right, but could not impair the right itself. Commercial nations have always considerable property in the possession of their neighbours; and, when war breaks out, the question what shall be done with enemy's property found in the country, is one rather of policy than of law, and is one properly addressed to the consideration of the legislature, and not to the courts of law. The strict right of confiscation of that species of property existed in Congress, and without a legislative act authorizing its confiscation, it could not be judicially condemned; and the act of Congress of 1812, declaring war against Great Britain, was not such an act. Until some statute directly applying to the subject, be passed, the property would continue under the protection of the law, and might be claimed by the British owner, at the restoration of peace.

Though this decision established the right, contrary to much of modern authority and practice, yet a great point was gained over the rigour and violence of the ancient doctrine, by making the exercise of the right to depend upon a special act of Congress.

The practice, so common in modern Europe, of imposing embargoes at the breaking out of hostility, has, apparently, the effect of destroying that protection to property, which the rule of faith and justice gives to it, when brought into the country in the course of trade, and in the confidence of peace. Sir William Scott, in the case of the Boedes Lust, explains this species of embargo to be an act of a hostile nature, and amounting to an implied declaration of war, though liable to be explained away and annulled, by a subsequent accommodation between the nations. The seizure is at first equivocal, and if the matter in dispute terminates in reconciliation, the seizure becomes a mere civil embargo, but if it terminates otherwise, the subsequent hostilities have a retroactive effect, and render the embargo a hostile measure, ab initio. The property detained is deemed enemy's property, and liable to condemnation. This species of reprisal for some previous injury, is laid down in the books as a lawful measure, according to the usage of nations; but it is often reprobated, and it cannot well be distinguished from the practice of seizing property found within the territory upon the declaration of war. It does not differ in substance from the conduct of the Syracusans, in the time of Dionysius the Elder, (and which Mitford considered to be a gross violation of the law of nations,) for they voted a declaration of war against Carthage, and immediately seized the effects of Carthaginian traders in their warehouses, and Carthaginian richly laden vessels in their harbour, and then sent a herald to Carthage to negotiate. But this act of the Syracusans, near four hundred years before the Christian aera, was no more than what is the ordinary practice in England, according to the observation of Lord Mansfield, in Lindo v. Rodney. "Upon the declaration of war or hostilities, all the ships of the enemy," he says, "are detained in our ports, to be confiscated, as the property of the enemy, if no reciprocal agreement is made."

Another question respecting the effect of a declaration of war upon property, arose in the case of the Rapid. It was held, that, after the commencement of war, an American citizen could not lawfully send a vessel to the enemy's country, to bring home his own property, without rendering it liable to seizure in transitu, as enemy's property. Every thing that issues from a hostile country, is, prima facie, the property of the enemy, and a citizen cannot lawfully be concerned in any commercial intercourse with the enemy. The English courts were formerly inclined to allow goods, in the enemy's country at the beginning of the war, to be brought home; but it is now the settled law, that it cannot be done safely, without a license from the government.

The claim of a right to confiscate debts, contracted by individuals in time of peace, and which remain due to subjects of the enemy at the declaration of war, rests very much upon the same principle as that concerning enemy's tangible property, found in the country at the opening of the war; though I think the objection to the right of confiscation, in this latter case, is much stronger. In former times, the right to confiscate debts was admitted as a doctrine of national law, and Grotius, Puffendorf and Bynkershoeck pronounce in favour of it. It had the countenance of the civil law, and even Cicero, in his Offices, when stating the cases in which promises are not to be kept, mentions that of the creditor becoming the enemy of the country of the debtor. Down to the year 1737, the general opinion of jurists was in favour of the right; but Vattel says, that a relaxation of the rigour of the rule has since taken place among the sovereigns of Europe, and that, as the custom has been generally received, he who should act contrary to it, would injure the public faith, for strangers trusted his subjects only from a firm persuasion that the general custom would be observed. There has frequently been a stipulation in modern treaties, that debts should not be confiscated in the event of war; and these conventional provisions are evidence of the sense of the governments which are parties to them, and that the right of confiscation of debts and things in action, is against good policy, and ought to be discontinued. The recent treaty between the United States and Colombia contains such a provision; but the treaty between the United States and Great Britain in 1795, went further, and contained the explicit declaration, that it was "unjust and impolitic" that the debts of individuals should be impaired by national differences. A very able discussion of this assumed right to confiscate debts, was made by General Hamilton, in the numbers of Camillus, published in 1795. He examined the claim to confiscate private debts, or private property in banks, or in the public funds, on the grounds of reason and principle, on those of policy and expediency, on the opinion of jurists, on usage, and on conventional law; and his argument against the justice and policy of the claim was exceedingly powerful. He contended it to be against good faith for a government to lay its hands on private property, acquired by the permission, or upon the invitation of the government, and under a necessarily implied promise of protection and security. Vattel says, that every where, in case of a war, funds credited to the public are exempt from confiscation and seizure. Emerigon and Martens make the same declaration. The practice would have a very injurious influence upon the general sense of the inviolability and sanctity of private contracts; and with debtors who had a nice and accurate sense of justice and honour, the requisition of government would not be cheerfully or readily obeyed. Voltaire has given a striking instance of the impracticability of confiscating property deposited in trust with a debtor, and of the firmness of Spanish faith. When war was declared between France and Spain, in 1684, the king of Spain endeavoured to seize the property of the French in Spain, but not a single Spanish factor would betray his French correspondent.

Notwithstanding the weight of modern authority, and of argument, against this claim of right on the part of the sovereign, to confiscate the debts and funds of the subjects of his enemy during war, the judicial language in this country is decidedly in support of the right. In the case of Brown v. The United States, already mentioned, Judge Story, in the Circuit Court in Massachusetts, laid down the right to confiscate debts, and enemy's property found in the country, according to the rigorous doctrine of the elder jurists; and he said the opinion was fully confirmed by the judgment of the Supreme Court in Ware v. Hylton, where the doctrine was explicitly asserted by some of the judges, reluctantly admitted by others, and denied by none. Chief Justice Marshall, in delivering the opinion of the Supreme Court, in the case of Brown, observed, that between debts contracted under the faith of laws, and property acquired in the course of trade on the faith of the same laws, reason drew no distinction, and the right of the sovereign to confiscate debts, was precisely the same with the right to confiscate other property found in the country. This right, therefore, was admitted to exist as a settled and decided right, stricto jure, though, at the same time, it was conceded to be the universal practice, to forbear to seize and confiscate debts and credits. We may, therefore, lay it down as a principle of public law, so far as the same is understood and declared by the highest judicial authorities in this country, that it rests in the discretion of the legislature of the Union, by a special law for that purpose, to confiscate debts contracted by our citizens, and due to the enemy; but as it is asserted by the same authority, this right is contrary to universal practice, and it may, therefore, well be considered as a naked and impolitic right, condemned by the enlightened conscience and judgment of modern time.

If property should have been wrongfully taken by the state before the war, and be in the country at the opening of the war, such property cannot be seized, but must be restored; because, to confiscate that species of enemy's property, would be for the government to take advantage of its own wrong. The celebrated Report of the English law officers of the crown in 1753, in Answer to the Prussian Memorial, stated, that French ships, taken before the war of 1741, were, during the heat of the war with France, as well as afterwards, restored by sentences of the admiralty courts, to the French owners. No such property was ever attempted to be confiscated, for had it not been for the wrong done, the property would not have been within the king's dominions. And yet even such property is considered to be subject to the rule of vindictive retaliation; and Sir Wm. Scott observed, in the case of the Santa Cruz, that it was the constant practice of England, to condemn property seized before the war, if the enemy condemns--and to restore, if the enemy restores.

One of the immediate and important consequences of the declaration of war, is the absolute interruption and interdiction of all commercial correspondence, intercourse, and dealing, between the subjects of the two countries. The idea that any commercial intercourse, or pacific dealing, can lawfully subsist between the people of the powers at war, except under the clear and express sanction of the government, and without a special license, is utterly inconsistent with the new class of duties growing out of a state of war. The interdiction flows, necessarily, from the principle already stated, that a state of war puts all the members of the two nations respectively in hostility to each other; and to suffer individuals to carry on a friendly or commercial intercourse, while the two governments were at war, would be placing the act of government, and the acts of individuals, in contradiction to each other. It would counteract the operations of war, and throw obstacles in the way of public efforts, and lead to disorder, imbecility, and treason. Trading supposes the existence of civil contracts and relations, and a reference to courts of justice; and it is, therefore, necessarily, contradictory to a state of war. It affords aid to the enemy in an effectual manner, by enabling the merchants of the enemy's country to support their government, and it facilitates the means of conveying intelligence, and carrying on a traitorous correspondence with the enemy. These considerations apply with peculiar force to maritime states, where the principal object is to destroy the marine and commerce of the enemy, in order to force them to peace. It is a well settled doctrine in the English courts, and with the English jurists, that there cannot exist, at the same time, a war for arms, and a peace for commerce. The war puts an end at once to all dealing, and all communication, with each other, and places every individual of the respective governments, as well as the governments themselves, in a state of hostility. This is equally the doctrine of all the authoritative writers on the law of nations, and of the maritime ordinances of all the great powers of Europe. It is equally the received law of this country, and was so decided frequently by the Congress of the United States during the revolutionary war, and again by the Supreme Court of the United States during the course of the last war; and it is difficult to conceive of a point of doctrine more deeply or extensively rooted in the general maritime law of Europe, and in the universal and immemorial usage of the whole community of the civilized world.

It follows, as a necessary consequence of the doctrine of the illegality of all intercourse or traffic, without express permission, that all contracts with the enemy, made during war, are utterly void. The insurance of enemy's property is an illegal contract, because it is a species of trade and intercourse with the enemy. The drawing of a bill of exchange, by an alien enemy, on a subject of the adverse country, is an illegal and void contract, because it is a communication and contract. The purchase of bills on the enemy's country, or the remission and deposit of funds there, is a dangerous and illegal act, because it may be cherishing the resources and relieving the wants of the enemy. The remission of funds, in money or bills, to subjects of the enemy, is unlawful. The inhibition reaches to every communication, direct or circuitous. All endeavours at trade with the enemy, by the intervention of third persons, or by partnerships, have equally failed, and no artifice has succeeded to legalize the trade, without the express permission of the government. Every relaxation of the rule tends to corrupt the allegiance of the subject, and prevents the war from fulfilling its end. The only exception to this strict and rigorous rule of international jurisprudence, is the case of ransom bills, and they are contracts of necessity, founded on a state of war, and engendered by its violence. It is also a further consequence of the inability of the subjects of the two states, to commune or carry on any correspondence or business together, that all commercial partnerships existing between the subjects of the two parties, prior to the war, are dissolved by the mere force and act of the war itself; though other contracts existing prior to the war, are not extinguished, but the remedy is only suspended, and this from the inability of an alien enemy to sue, or to sustain, in the language of the civilians, a persona standi in judicio. The whole of this doctrine respecting the illegality of any commercial intercourse between the inhabitants of two nations at war, was extensively reviewed, and the principal authorities, ancient and modern, foreign and domestic, were accurately examined, and the positions which have been laid down established, in the case of Griswold v. Waddington, decided in the Supreme Court of this state, and afterwards affirmed on error.

This strict rule has been carried so far in the British admiralty, as to prohibit a remittance of supplies even to a British colony, during its temporary subjection to the enemy, and when the colony was under the necessity of supplies, and was only very partially and imperfectly supplied by the enemy. The same interdiction of trade applies to ships of truce, or cartel ships, which are a species of navigation intended for the recovery of the liberty of prisoners of war. Such a special and limited intercourse is dictated by policy and humanity, and it is indispensable that it be conducted with the most exact and exclusive attention to the original purpose, as being the only condition upon which the intercourse can be tolerated. All trade, therefore, by means of such vessels, is unlawful, without the express consent of both the governments concerned. It is equally illegal for an ally of one of the belligerents, and who carries on the war conjointly, to have any commerce with the enemy. A single belligerent may grant licenses to trade with the enemy, and dilute and weaken his own rights at pleasure, but it is otherwise when allied nations are pursuing a common cause. The community of interest, and object, and action, creates a mutual duty not to prejudice that joint interest; and it is a declared principle of the law of nations, founded on very clear and just grounds, that one of the belligerents may seize, and inflict the penalty of forfeiture, on the property of a subject of a co-ally, engaged in a trade with the common enemy, and thereby affording him aid and comfort, whilst the other ally was carrying on a severe and vigorous warfare. It would be contrary to the implied contract in every such warlike confederacy, that neither of the belligerents, without the other's consent, should do any thing to defeat the common object.

In the investigation of the rules of the modern law of nations, particulary with regard to the extensive field of maritime capture, reference is generally and freely made to the decisions of the English courts. They are in the habit of taking accurate and comprehensive views of general jurisprudence, and they have been deservedly followed by the courts of the United States, on all the leading points of national law. We have a series of judicial decisions in England, and in this country, in which the usages and the duties of nations are explained and declared with that depth of research, and that liberal and enlarged inquiry, which strengthens and embellishes the conclusions of reason. They contain more intrinsic argument, more full and precise details, more accurate illustrations, and are of more authority, than the more loose dicta of elementary writers. When those courts in this country, which are charged with the administration of international law, have differed from the English adjudications, we must take the law from domestic sources; but such an alternative is rarely to be met with, and there is scarcely a decision in the English prize courts at Westminster, on any general question of public right, that has not received the express approbation and sanction of our national courts. We have attained the rank of a great commercial nation, and war, on our part, is carried on upon the same principles of maritime policy, which have directed the forces and animated the councils of the naval powers of Europe. When the United States formed a component part of the British empire, our prize law and theirs was the same, and after the revolution it continued to be the same, as far as it was adapted to our circumstances, and was not varied by the power which was capable of changing it. The great value of a series of judicial decisions, in prize cases, and on other questions depending on the law of nations, is that they liquidate, and render certain and stable, the loose general principles of that law, and show their application, and how they are understood in the country where the tribunals are sitting. They are, therefore, deservedly received with very great respect, and as presumptive, though not conclusive evidence of the law in the given case. This was the language of the Supreme Court of the United States, so late as 1815, and the decisions of the English High Court of Admiralty, especially since the year 1789, have been consulted and uniformly respected by that court, as enlightened commentaries on the law of nations, and affording a vast variety of instructive precedents for the application of the principles of that law.

The Founders' Constitution
Volume 3, Article 1, Section 8, Clause 11, Document 16
The University of Chicago Press

Kent, James. Commentaries on American Law. 4 vols. New York, 1826--30.

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