2832. Forfeiture of vessels belonging to citizens of insurrectionary States.— From and after fifteen days after the issuing of the proclamation, as provided in section fifty-three hundred and one, any vessel belonging in whole or in part to any citizen or inhabitant of such State or part of a State whose inhabitants are so declared in a state of insurrection, found at sea, or in any port of the rest of the United States, shall be forfeited. R. S. 5319. Notes of Decisions. Status of owner. Vessel belonging to alien woman residing transiently in rebel territory, not engaged in mercantile business, held not subject to confiscation. The D. F. Keeling (D. C. 1861), Fed. Cas. No. 3,873. The fact that a person's place of residence is occupied by the Army of the United States will not affect his status, where the government of the State is still under the control of the insurgents. U. S. v. The Allegheny (D. C. 1863), Fed. Cas. No. 14,429. Before the passage of the ordinance of secession by Virginia, a vessel cleared from Norfolk, owned in Virginia, and her officers and crew were inhabitants of that State. On her return voyage she was captured by a United States man-of-war. Her papers were regular, and she sailed under the United States flag. Her master testified that he considered himself a subject of the United States, that he considered his allegiance to the Union as greater and stronger than the allegiance to his native State, and that he would sustain the United States against his native State. Held, that the vessel at the time of her capture was enemy property, in consequence of the residence of her owners in the enemy country. U. S. v. The Sally Mears (1864), 6 D. C. 36. Liens. Where the share of one owner in a vessel was condemned under this act, and the remainder acquitted, held, that the owner of the latter had no llen for outlays in fitting the vessel. The Mary McRae (D. C. 1861), Fed. Cas. No. 9,221. 2233. Liens upon condemned vessels.—In all cases wherein any vessel, or other property, is condemned in any proceeding by virtue of any laws relating to insurrection or rebellion, the court rendering judgment of condemnation shall, notwithstanding such condemnation, and before awarding such vessel, or other property, or the proceeds thereof, to the United States, or to any informer, first provide for the payment, out of the proceeds of such vessel, or other property, of any bona-fide claims which shall be filed by any loyal citizen of the United States, or of any foreign state or power at peace and amity with the United States, intervening in such proceeding, and which shall be duly established by evidence as a valid claim against such vessel, or other property, under the laws of the United States or of any State thereof not declared to be in insurrection. No such claim shall be allowed in any case where the claimant has knowingly participated in the illegal use of such ship, vessel, or other property. This section shall extend to such claims only as might have been enforced specifically against such vessel, or other property, in any State not declared to be in insurrection, wherein such claim arose. R. S. 5322. Notes of Decisions. Proof and priority of liens and claims.A lien on enemy's property set up under act of Mar. 3, 1863, to protect the liens of all citizens of vessels and other property which belonged to rebels, was not suffciently proved by the test oath of the party setting up a lien and asserting it without any specification as to date of origin, from correspondence" with the parties and "copies of the invoice of the cargo sworn to as "believed to be true," the correspondence and copies not being produced, nor their absence accounted for. The Sally Magee (1865), 3 Wall. 451, 458, 18 L. Ed. 197. The mere affidavit of a claimant that he is not within the exceptions of a proclamation which he sets up in support of his claim is not sufficient proof that he is not. The Gray Jacket (1866), 72 U. S. (5 Wall.) 342, 18 L. Ed. 646. A mortgagee of a vessel captured as a prize can not claim that his rights are guperior to those of the captors because he was a loyal citizen. The Hampton (1866), 5 Wall. 372, 375, 18 L. Ed. 659. Vessels captured jure belli.-A vessel was captured jure belli and not under the non intercourse acts of Congress, and the vessel and cargo libeled as enemy property simply and in that character alone were condemned. Held, that the case did not come within this section. U. S. v. The Hampton (1864), 6 D. C. 75. 2834. Declaration of war.-The Congress shall have power To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; Art I, sec. 8, Constitution of the United States. Notes of Decisions. Declaring war in general.-The power to declare war is exclusively vested in Congress. Perkins v. Rogers (1871), 35 Ind. 124, 9 Am. Rep. 639. This clause relates only to wars with foreign nations. Norris v. Doniphan (1863), 61 Ky. (4 Metc.) 385. Blockades and commercial intercourse during war. The charges which the Treasury regulations required to be paid as a condition of carrying on trade in the insurrectionary States were imposed in the exercise of the war power. Hamilton v. Dillin (1874), 21 Wall. 73, 87, 22 L. Ed. 528. The proclamation of the blockade is of itself conclusive evidence of the existence of war warranting the blockade. The Mary Clinton (C. C. 1863), Fed. Cas. No. 9,203. Concession of belligerent rights by the legislative and executive departments to rebels establishes no rights except during the war. Shortridge v. Macon (C. C. 1867), Fed. Cas. No. 12,812. The President may lawfully proclaim a blockade of any of the ports of the United States when in his judgment the exigency for such action has arisen, though Congress alone has power, under the Constitution, to declare war and grant letters of marque. U. S. v. The Tropic Wind (1861), 6 D. C. 351. Recognition of state of war and belligerent rights. Whether war be made by invasion of a foreign nation, or by States organized in rebellion, it is none the less a war, although the declaration of it be "unilateral," for war may exist without a declaration on either side, and a declaration of war by one country only is not a mere challenge, to be accepted or refused at pleasure by the other. Prize Cases (1862), 2 Black, 635, 668, 17 L. Ed. 459. The power of making war is exclusively vested in Congress, but the President has power to repel invasions by hostile forces, even when Congress has not declared war. U. S. v. Smith (C. C. 1806), Fed. Cas. No. 16,342. The practice of a formal proclamation before recognizing an existing war and capturing enemy's property has fallen into disuse in modern times, and actual hostilities may determine the date of the commencement of war, though no proclamation may have been issued, no declaration made, and no action of the legislative branch of the Government had. The Buena Ventura (D. C. 1898), 87 Fed. 927; decree reversed (1899), 20 Sup. Ct. 148, 175 U. S. 384, 44 L. Ed. 206; decree affirmed, The Panama (1900), 20 Sup. Ct. 480, 176 U. S. 535, 44 L. Ed. 577. A public war, within the meaning of the Constitution and the Rules and Articles of War (act of Apr. 10, 1806), has existed with the Seminoles since the day Congress recognized their hostilities and appropriated money to suppress them. (1838) 3 Op. Atty. Gen. 307. War against States.-By the Constitution, Congress alone has the power to declare a national or foreign war, but it can not declare war against a State, or any number of States, by virtue of any clause in the Constitution. Prize Cases (1862), 2 Black, 635, 668, 688, 17 L. Ed. 459. Authority to suppress rebellion is found in the power to suppress insurrection and carry on war; and authority to provide for the restoration of State governments, under the Constitution, when subverted and overthrown is derived from the obligation of the United States to guarantee to every State in the Union a republican form of government. The latter, indeed, in the case of a rebellion which involves the government of a State, and, for the time, excludes the national authority from its limits, seems to be a necessary complement to the other. Texas v. White (1868), 74 U. S. (7 Wall.) 700, 19 L. Ed. 227. Congress is not deprived of its power when its exercise is called out by civil war. Tyler 1. Defrees (1870), 11 Wall. 331, 345, 20 L. Ed. 161. Although it is clear that the Constitution does not give Congress power, either expressly or by implication, to make war against a State, and to require the executive to carry it on by force drawn from the other States, yet that question is one for Congress itself to consider. (1860) 9 Op. Atty. Gen. 517. [C. S. p. 13,498.] Insurrection or rebellion constituting war. No formal declaration of war by the President, in the case of the War of the Rebellion, was necessary to render lawful the means adopted by him to repel the warlike measures of the enemy. The Hia watha (D. C. 1861), Fed. Cas. No. 6,451. The late insurrection of the Southern States did not become a civil war until after the proclamation of President Lincoin, issued Aug. 16, 1861, pursuant to act of July 13, 1861, placing the inhabitants of the Southern States in a state of insurrection. Perkins v. Rogers (1871), 35 Ind. 124, 9 Am. Rep 639; [C. S. p. 13,499]. Exercise of war powers.-By virtue of its power to make war and suppress insurrection, the Government has the right to transport troops to all parts of the Union by the usual and most expeditious mode, and a State tax on passengers carried out of the State is void as an interference therewith. Crandall v. Nevada (1867), 6 Wall. 35, 44, 18 L. Ed. 745. Under its power to declare war, Congress may carry on war and collect revenue for that purpose. The Legal Tender Cases (1870). 12 Wall. 457, 546, 20 L. Ed. 287. As incident to the power of making war, the National Government has the power to bury the dead who have fallen in battle and to appropriate for this purpose such lands for national cemeteries as are necessary to hold such burial places and protect them from desecration. (1869) 13 Op. Atty. Gen. 131. When Congress declares war, by that declaration it puts in force the laws of war, and the war powers of the Government which are not to be exercised, under the Constitution, in time of peace, come into full force by virtue c the Constitution, and are to be exerted by the Presi dent and Congress. After the declaration of war, every act done in carrying on the war is an act done by virtue of the Con. stitution, which authorized the war to be commenced. Every measure of Congress, and every Executive act performed by the Iresident, intended and calculated to carry the war to a successful issue, are acts done under the Constitution, whether the act or the measure be for the raising of money to support armies, or a declaration of freedom to fill their ranks and weaken the enemy, whether it be the organization of military tribunals to try traitors, or the destruction of their property by the advancing army, without due process of law, and the validity of such acts must be de The law of nations imposes only the limit on the war power of the United States, and there is no difference in this respect between a foreign and a civil war. Knoefel v. Williams (1868), 30 Ind. 1. Assuming that a conscript by furnishing a substitute, as authorized by act of Apr. 16, 1862, made a contract with the Government, the latter, under the power to declare war and raise and support armies, may annul such contract without making any compensation; exemption from military service not being property, but a mere personal privilege. Gatlin v. Walton (1864), 60 N. C. 325, 1 Winst. 333. Martial law.-Martial law can not suspend the Constitution as the guardian of the person and property of a private citizen who is not an enemy to the Government, and has been guilty of no hostile act. bin v. Marsh (1865), 63 Ky. (2 Duv.) 193. Cor Martial law is limited to the theater of active military operations, where no civil authority remains, and there is a necessity to furnish a substitute to preserve the safety of the Army and society; and martial rule can only prevail until the laws can have their free course. McLaughlin ". Green (1874), 50 Miss. 453. See Ex parte Vallandigham (C. C. 1863), Fed. Cas. No. 16,816. Acquisition and government of territory.— The Government possesses the power of acquiring territory by conquest. American Ins. Co. v. Canter (1828), 1 Pet. 511, 542, 7 L. Ed. 242; Pollard v. Kibbe (1840), 14 Pet. 353, 392, 10 L. Ed. 490. The power to declare war is conferred on Congress to enable the General Government to vindicate by arms its own rights and the rights of its citizens, and a war declared by Congress is not presumed to be waged for conquest, and the boundaries of the United States may only be extended by the treaty-making power or legislative authority. Fleming v. Page (1850), 9 How. 603, 614, 13 L. Ed. 276. A military occupation which will give the right to exercise governmental authority is not merely an invasion, but is an invasion plus possession of the enemy's country for the purpose of holding it temporarily, at least. Macleod v. U. S. (1913), 33 Sup. Ct. 955, 229 U. S. 416, 57 L. Ed. 1260. The power conferred on the Government to make war and treaties implies the power to acquire territory, either by conquest or treaty; and the power to govern such territory until it is fit to be admitted into the Union as a State results from the acquisition thereof. Nelson v. U. S. (C. C. 1887), 30 Fed. 112, affirming (D. C. 1886), 29 Fed. 202. The power to acquire additional territory rests on the power to declare war. Ex parte Ortiz (C. C. 1900), 100 Fed. 955, 958. Government established in a conquered territory by the orders of the military power occupying the same endures while the occupation continues, and ends with the restoration of peace and the resumption of the regular civil municipal Government. Isbell v. Farris (1868), 45 Tenn. (5 Cold.) 426. Captures on land and water. Enemy property found here, on land, at the commencement of hostilities, can not be condemned without a legislative act authoriz ing confiscation. The declaration of war is not such an act. Brown v. U. S. (1814), 8 Cranch, 110, 125, 126, 3 L. Ed. 504. Captured and abandoned property act of Mar. 12, 1863, held within the power to "make regulations concerning captures on land and water." Haycraft v. U. S. (1874), 22 Wall. 81, 94, 22 L. Ed. 738. Seizure and confiscation of property.-A military commander, under circumstances of actual, urgent, immediate, and pressing public necessity may take private property. Harmony v. Mitchell (C. C. 1850), Fed. Cas. No. 6,082; Holmes v. Sheridan (C. C. 1870), Fed. Cas. No. 6,644. The mere declaration of war does not confiscate enemy property or debts due to an enemy, nor does it so vest the property or the debts in the Government, as to support judicial proceedings for the confiscation of the property or debts, without expression of the will of the Government, through its proper department, to that effect. Under the Constitution of the United States, the power of confiscating enemy property and debts due to an enemy is in Congress alone. Britton v. Butler (C. C. 1872), Fed. Cas. No. 1,903. The United States may take and use real estate during war for war purposes, but may not, by any summary proceeding, divest the title of the owner, nor the power to retain possession beyond the period during which the occasion for the taking continued. (1896), 21 Op. Atty. Gen. 382. If the provisions of the confiscation act of July 17, 1862, are unconstitutional and void, it seems clear that Congress has no power to prohibit the State courts from giving to the owners the relief to which they are entitled by the laws of the States. Norris v. Doniphan (1863), 61 Ky. (4 Metc.) 385. The right given by the Constitution to make war upon rebels gives the power to perform acts of war, and no other power whatever, and the seizure and confiscation of enemy's property on land are not acts of war. Id. The seizure and sale of property does not pass title unless warranted by the usages of war, but Const. Mo. art. 11, sec. 4, protecting officers from prosecutions for unlawful seizures made during the Rebellion, is valid. Williamson v. Russell (1872), 49 Mo. 185. [C. S. p. 13,501.] 2835. Declaration of a state of war with Germany.-That the state of war between the United States and the Imperial German Government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial German Government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States. Joint Res. 1, Apr. 6, 1917 (40 Stat. 1). That in the interpretation of any provision relating to the duration or date of the termination of the present war or of the present or existing emergency, meaning thereby the war between the Imperial German Government and the Imperial and Royal Austro-Hungarian Government and the Government and people of the United States, in any Acts of Congress, joint resolutions, or proclamations of the President containing provisions contingent upon the duration or the date of the termination of such war or of such present or existing emergency, the date when this resolution becomes effective shall be construed and treated as the date of the termination of the war or of the present or existing emergency, notwithstanding any provision in any Act of Congress or joint resolution providing any other mode of determining the date of such termination. And any Act of Congress, or any provision of any such Act, that by its terms is in force only during the existence of a state of war, or during such state of war and a limited period of time thereafter, shall be construed and administered as if such war between the Governments and people aforesaid terminated on the date when this resolution becomes effective, any provision of such law to the contrary notwithstanding; excepting, however, from the operation and effect of this resolution the following Acts and proclamations, to wit: Title 2 of the Act entitled "The Food Control and District of Columbia Rents Act," approved October 22, 1919 (Forty-first Statutes, page 297), the Act known as the Trading with the Enemy Act, approved October 6, 1917 (Fortieth Statutes, page 411), and all amendments thereto, and the First, Second, Third, and Fourth Liberty Bond Acts, the Supplement to the Second Liberty Bond Act, and the Victory Liberty Loan Act; titles 1 and 3 of the War Finance Corporation Act (Fortieth Statutes, page 506) as amended by the Act approved March 3, 1919 (Fortieth Statutes, page 1313), and Public Resolution Numbered 55, Sixty-sixth Congress, entitled "Joint resolution directing the War Finance Corporation to take certain action for the relief of the present depression in the agricultural sections of the country, and for other purposes," passed January 4, 1921; also the proclamations issued under the authority conferred by the Acts herein excepted from the effect and operation of this resolution: Nothing herein contained shall be held to exempt from prosecution or to relieve from punishment any offense heretofore committed in violation of any Act hereby repealed or which may be committed while it remains in force as herein provided. Joint Res. 64, March 3, 1921 (41 Stat, 1359-1360). Notes of Decisions. Construction.-In an opinion of April 11, 1921. the Attorney General held that the following acts, inter alia, are affected by the above resolution "and that the same come within its intended purpose of restoring the internal affairs of the United States to a peace-time basis," namely: Sec. 16, act of May 22, 1917 (40 Stat. 87); act of July 9, 1918 (40 Stat. 885); sec. 5, act of Oct. 6, 1917 (40 Stat. 383); sec. 213 (8), act of Feb. 24, 1919 (40 Stat. 1066); sec. 204, war risk insurance act of Oct. 6, 1917 (40 Stat. 403). (For the sections of this book in which the above provisions may be found, see Table of Citations, post, p. 1507). 2836. Declaration of a state of war with Austria-Hungary.-That a state of war is hereby declared to exist between the United States of America and the Imperial and Royal Austro-Hungarian Government; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the Government to carry on war against the Imperial and Royal Austro-Hungarian Government; and to bring the conflict to a successful termination all the resources of the country are hereby pledged by the Congress of the United States. Joint Res. 17, Dec. 7, 1917 (40 Stat. 429). |