The public personal property of the enemy country may still be appropriated, as well as the rents and profits of the public real property.

A country also has the right (not now exercised) of confiscating all property belonging to citizens of the hostile country, which may be found within their limits,5 and also of confiscating debts due to their own citizens by such citizens of the hostile country.6

In Brawn vs. United States,7 the Supreme Court of the United States, said:

"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 a prize of war? The cargo of the Emulous having been legally acquired and put on board the vessel, having been detained by an embargo not intended to act on foreign property, the vessel having sailed before the war, from Savannah, under a stipulation to reland the cargo in some port of the United States, the relanding having been made with respect to the residue of the cargo, and the pine timber having been floated into shallow water, where it was secured and in the custody of the owner of the ship, an American citizen, the Court cannot perceive any solid distinction, so far as respects confiscation, between this property and other British property found on land at the commencement of hostilities. It will therefore be considered as a question relating to such property generally, and to be governed by the same rule.

5 Brawn vs. The United States,

8 Cranch, 110. 6 Ware vs. Hylton, 3 Dallas, 199.

7 8 Cranch, 110. The English decisions are to the contrary.

"Respecting the power of government, no doubt is entertained. That war gives to the sovereign full right to take the persons and confiscate the property of the enemy, wherever found, is conceded. The mitigations of this rigid rule, which the humane and wise policy of modern times has introduced into practice, will more or less affect the exercise of this right, but cannot impair the right itself. That remains undiminished, and when the sovereign authority shall choose to bring it into operation, the judicial department must give effect to its will. But until that will shall be expressed, no power of condemnation can exist in the court.

"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?

"2nd. 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 properly 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 were acquired in peace in the course of trade. Such a proceeding is rare, and would be deemed a harsh exercise of the right of war. But although the practice in this respect may not be uniform, that circumstance does not essentially affect the question. The inquiry is whether such property vests in the sovereign by the mere declaration of war, or remains subject to a right of confiscation, the exercise of which depends on the national will; and the rule which applies to one case so far as respects the operation of a declaration of war on the thing itself, must apply to all others over which war gives an equal right. The right of a 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 in the country must be the same. What, then, is this operation?

"Even Bynkershoek, who maintains the broad principle, that in war everything done against an enemy is lawful; that he may be destroyed, though unarmed and defenseless; 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 conceded and escape condemnation.'

"Vattel says, that 'the sovereign can neither detain the persons nor the property of those subjects of the enemy who are within his dominions at the time of the declaration.'

"It is true that this rule is, in terms, applied by Vattel to the property of those only who are personally within the territory at the commencement of hostilities; but it applies equally to things in action and to things in possession; and if war did, of itself, without any further exercise of the sovereign will, vest the property of the enemy in the sovereign, his presence would 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 seems 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 consficate the property of the enemy; and their rules go to the exercise of this right."

Having thus decided that war gives the right, in accordance with international law, to confiscate enemy's property in the situation of this cargo, but not of its own force, the court next proceeded to inquire whether the constitution or laws of the United States had authorized such confiscation. "The constitution confers upon congress the power 'to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water.' It is evident then that the power to confiscate is vested in congress, and that it is not included in the power to declare war. The declaration of war, therefore, did not authorize confiscation; and congress had enacted no other law to that effect.

"Neither is it admitted that the executive, in executing the laws of war, may seize and the courts condemn all property which according to the modern law of nations is subject to condemnation. The rule is in its nature flexible. It is subject to infinite modifications; it is not an immutable rule of law, but depends on political considerations which may continually vary. It is a question rather of policy than of law; and like all other questions of policy, 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, and not of the executive or judiciary.

"The court is therefore of opinion that there is error in the sentence of condemnation pronounced in the circuit court in this case, and both direct that the same be reversed and annulled, and that the sentence of the district court be affirmed."

Mr. Justice Story with a minority of the court, held that, "the right of confiscation existing, it was within the power of the executive to enforce confiscation, in the same manner that the executive established blockades, and authorized the capture of the enemy's property at sea, and contraband goods."